Canada: Do Not Pass Go: B.C. Court Confirms Jumbo Ski Resort Needs New Environmental Assessment

On August 6, 2019, the B.C. Court of Appeal (Court) upheld the provincial Minister of Environment's (Minister) determination that the Jumbo Glacier Resort was not "substantially started" by the deadline set out in its environmental assessment certificate.

This decision will be of interest to the nearly 30 approved projects in British Columbia which have not yet sought a "substantially started" determination from the Minister. The court decision confirms the Minister can focus the inquiry on physical construction and ignore factors that delayed the project, even when those factors are within the government's control.

BACKGROUND

Glacier Resorts Ltd. (Glacier) is the proponent of the Jumbo Glacier Resort project (Project), a large year-round ski resort intended to be developed in the East Kootenay region of British Columbia, between Invermere and Nelson. The Project was first proposed in 1991, but has a long and drawn out history.

The Project's environmental assessment certificate was issued in October 2004 (Certificate). The Certificate and section 18 of the Environmental Assessment Act (Act) required Glacier to "have substantially started construction of the Project" by October 2009. This deadline was later extended to October 2014. The Certificate also required that Glacier obtain a Master Development Agreement (MDA) from the province and attempt to negotiate an impact benefit agreement (IBA) with the Ktunaxa Nation (Ktunaxa). The Project was to proceed in three phases, but completion of the phases was anticipated to take at least 15 years.

The Project faced a host of issues in obtaining approvals and undertaking construction. The Certificate was challenged and upheld by the B.C. Supreme Court in 2007 in R.K. Heli-Ski Panorama Inc. v. Glassman. Then in June 2009, consultation with Ktunaxa broke down, preventing the completion of an IBA. The MDA was not granted until March 2012, though anticipated by 2007, and the Ktunaxa challenged the MDA all the way up to the Supreme Court of Canada — Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resources Operations) (for more information, see our November 2017 Blakes Bulletin: Supreme Court Rejects First Nation's Spiritual Objection to Ski Resort). The province did not create a mountain resort municipality until November 2012 and the newly created municipality did not rezone the area until 2013. The province also removed the only bridge access to the Project site without notice to Glacier in 2012 and protesters blocked construction in 2013. Despite these challenges, the initial foundations of the necessary components of the opening phase, including the day lodge, service and lift were completed and in place by October 2014.

In June 2015, the Minister assessed the work that had been undertaken to determine if the Project had been "substantially started". The Minister measured Glacier's progress against Phase I of the Project (requiring a gondola, five chairlifts, accommodations, chalets, other structures, and a variety of services). However, the Minister declined to consider the administrative and political hurdles that Glacier had faced in developing the Project. She concluded that the Project had not been substantially started, meaning that the Project's Certificate expired.

B.C. SUPREME COURT DECISION

On judicial review, the chambers judge concluded the Minister's decision was unreasonable. First, by failing to consider the hurdles faced by Glacier and second, by comparing the work undertaken against Phase I of the Project. The record showed that Glacier had faced substantial challenges in developing the Project, many of which were directly or indirectly attributed to the province, making it implausible to start many of the Phase I structures by the deadline. The province appealed and Glacier cross-appealed the decision.

B.C. COURT OF APPEAL DECISION

Majority Decision

The B.C. Court of Appeal upheld the decision of the Minister, concluding that the Minister's decision was entitled to deference and was reasonable in the circumstances. The Court focused on the intent of the Act generally and section 18. The majority stated:

The legislation, however, is also mindful of the fact that environmental science progresses. The perceived impact of a proposed project may change over time, not only due to changes in public attitudes, but also due to increasing knowledge of the harm caused by certain types of development. Further, the character of a development site may change substantially over time. Finally, advances in technology may result in more effective mitigation measures becoming available. It would be unwise to allow long-delayed projects to proceed based on reports and conditions that have become outdated.

With this purpose in mind, the majority concluded that the Minister's focus on actual construction and physical activities was appropriate. The Act does not require an inquiry into the proponent's efforts to proceed with the project. "The fact is...that proponents may fail to commence a project through no fault of their own."

Dissenting Decision

Justice Hunter wrote a lengthy dissenting decision, reaching a markedly different conclusion regarding the intent of the "substantially started" requirement. He concluded that section 18 only requires that the proponent start the project in a meaningful way by the deadline in the Certificate. The statute does not limit the Minister's consideration to physical work only, and no legislative purpose would be served by refusing to consider relevant factors such as the administrative and political hurdles faced by Glacier. This was also not required by the decision of Taku River Tlingit First Nation v. British Columbia (Minister of Environment).

Justice Hunter would have remitted the decision to the Minister for reconsideration.

COMMENTARY

For Glacier, this decision is the final barrier among the many practical and legal challenges faced by the Project since it was proposed nearly 30 years ago. The Project will need to undergo a new environmental assessment in order to continue, unless the Supreme Court of Canada grants Glacier leave to appeal. However, there is at least some possibility that leave will be granted, given that Canada's top court has not yet considered the meaning of "substantially started" and the case could potentially have a national impact.

On June 21, 2019, the federal government passed Bill C-69, including the new federal Impact Assessment Act. Once in force, the Impact Assessment Act will require the federal Minister of Environment to impose deadlines by which approved projects must "substantially begin." In addition, provincial ministers have discretion to include similar deadlines for construction as conditions of project approval. While the federal statute and other provincial statutes may offer more discretion to the federal and provincial ministers than the Act, "substantially started" jurisprudence is likely to be of relevance across Canada in the future.

Interestingly, the "substantially started" requirement is slated for revision when Bill 51 – Environmental Assessment Act comes into force. Projects approved under the new Act will have up to 15 years to substantially start their projects (rather than the current 10-year limit). In addition, the new Act will impose a deadline by which projects must be operational. Projects approved under the former Act will be required to be operational either five years after the new Act comes into force or 20 years after the certificate was issued, whichever is longer. However, no definition of "operational" is provided, which may lead to future challenges.

For permission to reprint articles, please contact the Blakes Marketing Department.

© 2019 Blake, Cassels & Graydon LLP.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Events from this Firm
3 Oct 2019, Seminar, Toronto, Canada

The materials on the Blakes Business Class website are provided for informational purposes only. Accessing this information does not create a lawyer-client relationship.

30 Oct 2019, Other, Toronto, Canada

The materials on the Blakes Business Class website are provided for informational purposes only. Accessing this information does not create a lawyer-client relationship.

 
In association with
Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions