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Mr. Oberti, tear down those slabs
The Purcell Pundit
By Chris Conway
Last October Glacier Resorts Ltd. poured two concrete slabs in the upper Jumbo Valley.
A subsequent detailed avalanche risk assessment for the location of the concrete slabs was completed in March this year by Dynamic Avalanche Consulting of Revelstoke.
Dynamic’s report determines conclusively that both slab locations are within the avalanche hazard zones an avalanche path ironically named the Pink Panther. Cue the music – you know how it goes!
The Pink Panther is capable of producing avalanches up to size 4. A size 4 avalanche can destroy up to four hectares of forest. It can also destroy large buildings. That’s where Glacier Resorts Ltd. chose to put its day lodge.
The slabs were presumably poured pursuant to building permits issued by the Jumbo Glacier Mountain Resort Municipality (JGMRM). There is no reason to doubt that the permits were issued but so far the municipality has resisted requests to produce copies of the permits.
Building permits are issued through a regulatory power and are granted to a local government by the provincial legislature through the Community Charter.
The municipality has no power to authorize anything through a bylaw that is prohibited by a superior law. In other words, the municipality cannot permit something that the provincial government prohibits.
Development of the Glacier Resorts Ltd. ski resort project at Jumbo is regulated by the provincial government’s Environmental Assessment Office (EAO). The EAO applies the Environmental Assessment Act to major development projects like the Jumbo Resort. The Minister of Environment is responsible for the EAO.
In 2004, upon completion of an environmental assessment process, Glacier Resorts Ltd. was granted an Environmental Assessment (EA) Certificate. The certificate includes legally-binding conditions. These conditions must be adhered to throughout the life of the project. It is the specific legal duty of the minister and the EAO to ensure the conditions are enforced.
Condition 36 of the certificate requires any building to be “completely outside the avalanche hazard area.”
The concrete slabs poured by Glacier Resorts are within the avalanche hazard area. Therefore any building permit that has been issued for the slab locations is invalid for the simple reason that the building permit and the municipal bylaw may not supersede the Environmental Assessment Act. And the EA certificate.
If it was not before, the municipality must now surely be aware that the construction work contravenes the EA certificate. The EA certificate supersedes the building permits. An immediate stop work order should therefore be issued by the municipality. Failure to do so potentially places the municipality in an ultra vires position, meaning that it is acting beyond the powers granted to it.
Dynamic’s report suggests risk management strategies that would enable use of the buildings and cites examples where that occurs. Glacier Resorts Ltd. is arguing that these strategies should be adopted at Jumbo.
Those strategies may well apply in other ski resorts, elsewhere, but they are irrelevant in this particular case. The slab locations are within the avalanche hazard area and that circumstance alone is explicitly prohibited by the EA certificate, regardless of any risk mitigating strategies. That fact has always been patently clear to all concerned.
Besides, everyone knows the most effective strategy for mitigating risk is to avoid it altogether whenever possible.
Why put the buildings in an avalanche path if you don’t need to?
It’s like the over-confident captain of the Titanic ordering full speed ahead into a dark cold ocean filled with huge icebergs. The experts all said the ship was unsinkable. The rest is history.
The law is the law, so they say, and we are all expected to abide by the law. Surely we all know that by now?
The Environmental Assessment Act is the law. The 10-year-old restriction imposed by condition 36 is legally-binding on the developer, the provincial government and the municipality. Glacier Resorts Ltd. knew that. Everyone knew it.
Glacier Resorts, knowingly or otherwise, broke the law and caused the current problem when it poured two concrete slabs in an avalanche hazard zone in contravention of the EA certificate.
What we are now witnessing is Glacier Resorts pleading for special treatment after being caught red-handed in a problem solely of their own making. There’s no point in blaming others. They did this.
The Act states that any person (including corporations), who does not comply with an Environmental Assessment certificate commits an offence. It also states that any employee, officer, director or agent of the corporation who authorizes permits or acquiesces in the offence commits the same offence.
A person committing an offence is liable to a fine and/or imprisonment. That outcome is improbable as the government most likely lacks the will to bring charges in this case but it is abundantly clear that the will and intent of the B.C. Legislature was that developers must comply with their EA certificates.
That includes Glacier Resorts.
The company is waiting to hear if it has achieved a “substantial start” on the project. That decision will eventually be made by Minister of Environment Mary Polak. One thing, however, should be absolutely and immediately clear. The company should not get a government pat on the head and a retroactive “atta-boy” for this screw-up.
Unless those concrete slabs are going to become civic memorials to political corruption, they have no future in the upper Jumbo Valley. They have to go!
It’s time for democracy and law to prevail at Jumbo. With all due apologies to Ronald Reagan, it’s time to say “Mr. Oberti, tear down those slabs!”
– Chris Conway is a freelance photographer and writer in Invermere. View his photography at ChrisConway.ca
