The Jumbo Glacier ski resort developers have won a major legal victory, but it couldn’t come at a worse time politically.
The B.C. Supreme Court has negated a decision by former B.C. Liberal environment minister Mary Polak that stalled the project. But now the NDP cabinet has to deal with the aftermath, and its members sided for years with opponents of the project, as did the Green Party.
So the politicians who spent years criticizing the resort project now have responsibility for deciding whether to put it back on track.
The NDP government is going to have to square a clear directive from the B.C. Supreme Court in the project’s favour with their own track record against the project.
The court ruled last Friday that Polak was wrong when she decided the developers hadn’t fulfilled the conditions of an environmental permit by making a substantial start on construction within the permitted time.
Her 2015 decision was the culmination of decades of bitter local arguments, First Nations rights cases, environmental crusades and process paralysis by a succession of provincial governments.
The unique, high-altitude plan for a year-round ski resort spent years in the approval process, then got the OK, subject to the company making a “substantial start” on construction by 2014.
The B.C. Liberals were initially backers of the project and even created a resort municipality in what is still unpopulated wilderness.
But when it came time to check if the construction start met the permit’s condition, Polak ruled that the work to that date didn’t qualify.
The huge project has been dormant since then, while the company headed to court. It argued the decision was unreasonable. The project faced several regulatory and environmental obstacles that forced delays and the standard it was held to was contrary to accepted practices and impossible to meet, it said.
Justice Carla Forth said Polak was unreasonable in ignoring the history of delays in the approval process. One cited by the company was due to local officials decommissioning a bridge on a forest service road that was the only access to the construction site, without any consultation with the company.
The judge also noted other points where the delay was directly the fault of the province. It took government two years to approve the company’s permit to replace the bridge that the forests ministry had shut down.
The original request for the creation of a municipality was made by the regional district in 1996, but it took 16 years to accomplish.
The environmental approval took almost three years.
Said the judge: “These delays become crucial when there is a regulated timeline for the substantial start of a project. If the project cannot be started because of these types of delays, then the delays should become far more relevant.”
She said the company was not casual or dilatory. It had been “proactively trying to move this project forward since its initiation approximately 27 years ago.”
The verdict stopped short of completely reversing Polak’s decision. The company wanted a ruling that construction had started, so therefore the environmental permit was in full effect. But the judge just ordered the current environment minister to reconsider the decision.
That would be Environment Minister George Heyman. He’s the former head of the Sierra Club, which spent years campaigning against the project.
Premier John Horgan also criticized the project, as did various other NDP MLAs.
Former leader Adrian Dix said before the 2013 election: “The NDP’s position on the proposed Jumbo Glacier resort is unequivocal; it should not proceed.”
Green Party Leader Andrew Weaver was also an ardent critic. He said the concept of a year-round glacier ski resort was a “fantasy” that didn’t make any sense.
His support on confidence issues is now crucial for the NDP government.
The company wants the government to follow the judge’s directive expeditiously. The government said it’s considering the judgment, including a possible appeal.
Obeying the ruling would run counter to years of NDP complaints about the project. But continuing the epic stall could leave the government — and taxpayers — liable for damages.
