Jumbo Glacier Resort Project Status Uncertain as BC Court of Appeal Reaffirms Ministry of Environment Decision

Summary: Glacier Resorts Ltd. v British Columbia (Minister of Environment), 2019 BCCA 289 In a decision that refines the case law around British Columbia’s Environmental Assessment Act, the BC Court of Appeal has overturned a lower court’s determination that the BC Minister of the Environment acted unreasonably in determining that the Jumbo Glacier Resort Project was not “substantially started” prior to the passing of the deadline on its environmental assessment certificate. The proposed resort has faced scrutiny from environmental activists and Indigenous groups alike as it is in prime grizzly bear habitat and located on land sacred to the Ktunaxa people. The Ktunaxa Nation Council argued at the Supreme Court of Canada that the area they call Qat’muk (which includes the site of the proposed resort) is sacred as it is inhabited by Kǂawǂa Tukǂuǂaʔis, the Grizzly Bear Spirit, and ought to be protected under 2(a) of the Canadian Charter of Rights and Freedoms protecting freedom of religion. However, in 2017 the Supreme Court denied the Ktunaxa’s claim and determined that freedom of religion does not include protection of religious objects including sacred spaces like Qat’muk. JFK Law’s commentary on the Ktunaxa case can be found here. The Jumbo Glacier Resort Project was issued an environmental assessment certificate in 2004, which required the project be “substantially started” within a 5-year time period. In 2009, the project was granted a 5-year extension as it was already facing delays. Upon expiry of the extension, the Minister of the Environment determined that the work-to-date did not constitute a “substantial start” as is required by the statute. The Minister was “not convinced that the physical activity undertaken on the various components met the threshold of a substantially started project.” To make this determination, the Minister reviewed the law on what constitutes a “substantial start” and defined it as: requiring a case-by-case analysis; placing greater emphasis on physical work with planning considered to a lesser extent; to be determined in the context of the scope of the project; and meaning more than “merely started.” With this legal interpretation, the Minister determined that the project had failed to reach this threshold. The physical work, when placed in the context of the expansive proposal for phase one of the project, did not constitute a “substantial start.” The Minister considered the development and permitting hurdles that contributed to the delay but found that these types of hurdles were common and subject to competing points of view. As a result, the Minister focused more on the physical work. She determined that this work was insufficient to meet the requirements of a “substantial start” as she interpreted them. As a result, the certificate was allowed to expire. The project proponent, Glacier Resorts Ltd., did not accept this outcome and applied for judicial review of the Minister’s decision. On judicial review, the chambers judge found that the Minister “failed to take into account the unique challenges that Glacier faced.” The chambers judge determined that the extended legal battles, such as the Ktunaxa case discussed above, as well as opposition from environmentalists among other causes of delay were not the proponent’s fault and they should not be punished for these external factors. The chambers judge viewed the Minister placing limited weight on these external factors as “unreasonable”. As a result, the chambers judge found the decision was unreasonable and sent it back to the Minister to make another determination. On August 7, the BC Court of Appeal overturned the decision of the chambers judge. The appeal judge determined that the chambers judge erred in law by interpreting the test for “substantial start” as “an inquiry into whether a proponent has made reasonable efforts to proceed with a project.” The appeal judge expressed sympathy for projects that fail to commence based on external factors but viewed the law as clear and reasonably applied by the Minister. Upon determining that the Minister acted reasonably, the appeals judge allowed the appeal and reinstated the Minister’s decision. To proceed at this stage, the Jumbo Glacier Resort Project will have to restart the environmental assessment process from scratch. A jumbo task indeed. Importance of this Case This case provides important clarity on what it means for a project to be substantially started under British Columbia’s Environmental Assessment Act. It makes clear that the efforts of the proponent to start a project are not what matters, but whether the proponent actually makes progress on the ground. While “external factors” may cause delay, this does not relieve the proponent of its obligation to start the project within the time allowed by the environmental assessment certificate. This should provide additional incentive to proponents to resolve disputes with Indigenous communities as they cannot use these disputes as an excuse if they are not able to substantially start a project. While the case describes them as “external factors”, disputes with Indigenous communities are not wholly outside of the proponent’s control. The risk to projects can be mitigated if proponents work cooperatively with Indigenous communities to obtain their consent to a project prior to or during the environmental assessment process. This case also upholds the importance of time limits on environmental assessment certificates. As the case notes, the perceived and actual impact of a project may change over time due to changes in public attitudes, additional information about the potential harm of a development or changes to the condition of the area of the proposed project. Further, changes in technology may improve the mitigation measures available to reduce the project’s harms. The time limits in environmental assessment certificates are there, not to punish proponents, but to protect the public and the environment from projects proceeding on the basis of outdated information and conditions. Regardless of the reason a project is delayed, it is important that this protection be upheld.