Winter Tourism

In a remote valley in the mountainous south-east of the province of British Columbia (BC), Canada, there is a tourist resort town unlike any other in the world. Jumbo Glacier Mountain Resort Municipality has a mayor and councillors, bylaws and a tax revenue stream from the provincial government, but it has no buildings or infrastructure and nobody lives there. The town legally exists, but for all practical purposes it is make-believe, incorporated on paper as a ‘Mountain Resort Municipality’ by the provincial government in 2012 in an extraordinary attempt to move forward a developer’s stalled application for an all-seasons resort project. Since first being proposed in 1991, Jumbo Glacier Resort had stumbled through a variety of government review processes, pushed by a growth-oriented coalition of business and government supporters, and opposed at every step by equally determined Indigenous and non-Indigenous community members and other government officials (Owens, 2011).

The move by the BC provincial government to create a Mountain Resort Municipality, which largely removed the development from the jurisdiction of the existing regional government, arose out of concerns about the trajectory of the review process. Despite receiving a provincial environmental assessment (EA) approval certificate in 2004 after more than a decade of review, a number of regulatory requirements remained. In particular, the land for the development needed to be rezoned by the local regional district (BC’s rough equivalent of a county or regional government area), which would require a local public hearing (Metcalfe, 2009). Supporters of the resort feared that, due to the high level of opposition among local people, the probable result of a public hearing would be further delays or, worse, that the rezoning application would be rejected and the project would not be able to proceed (Owens, 2011). In order to bypass the requirement for rezoning and local public review, and to finally enable construction to begin, provincial government officials acted by amending and invoking a rarely used law to impose a new local government – a Mountain Resort Municipality – in the location of the proposed resort, with a mayor and councillors appointed by the provincial government, but no other voters. The strategy was successful, but the developer subsequently encountered other difficulties and in 2015 the BC Minister of Environment ruled that the EA approval for the resort had expired due to insufficient progress on construction (BC MOE, 2015). The developer successfully challenged that ruling in court and the government filed an appeal to the BC Court of Appeal (Ditson, 2018). The hearing of the appeal is expected to take place in 2019. Meanwhile, none of the proposed buildings have been constructed and the ‘town’ remains empty, 27 years after the proposal for the resort was first submitted.

What follows is the story of this decades-long struggle over the Jumbo Valley. The story is set in BC, which has its own peculiar colonial historical geography, but it is a story that should be of interest to a broader audience, as it explores the complexities and contradictions of tourism development and governance in pursuit of the idealized but contested goal of sustainability. Like many other struggles over resource development, this one is rooted in different images, values and visions for a particular place. The EA and other regulatory reviews of the proposed Jumbo Glacier Resort faced the challenging task of understanding and weighing the conflicting perspectives and claims about this place, evaluating the scientific evidence and determining the public interest. Or, as the 1996 BC Environmental Assessment Act described the goal, ‘to promote sustainability by protecting the environment and fostering a sound economy and social well-being’ (RSBC 1996, chapter 119, s. 2(a)).

The contested place that is the setting for this story is a spectacularly beautiful alpine region: a valley 1700 m above sea level, rimmed by glacier-clad mountain peaks reaching to more than 3000 m. Proponents of the Jumbo Glacier Resort see this place as an ideal location for a unique year-round tourism development in an area of Canada that is legendary for skiing and other winter sports; with exhilarating scenery, favourable climate and deep powdery snow conditions. In their view the proposed resort, with more than 5000 beds and as many as 3000 visitors per day (Jumbo Glacier Resort, 2015), would provide tremendous benefits that easily outweigh the social and environmental costs, which they believe could be mitigated. Environmentalists and wilderness advocates, however, see this same place as part of the wild Purcells, a majestic and largely uninhabited mountainous region that includes the protected Purcell Wilderness Conservancy, located just to the south of Jumbo Valley, and the fabled Lake of the Hanging Glaciers, in the drainage adjacent to Jumbo (Owens, 2011). They value the region for its wildness, its contribution to local ‘sense of place’ and its unusual diversity of large mammals and other wildlife. Local conservation groups call it the ‘Serengeti of North America’ (Hurtak, 2015). In their view, the Jumbo area should be kept wild. Another group of firm opponents of the project, the Ktunaxa First Nation – Indigenous people who have lived in the region for thousands of years – have their own unique perspective. For them, the area where the Jumbo Resort is proposed is Qat’muk, imperfectly translated as the place where the Grizzly Bear Spirit was born, goes to heal itself, and returns to the spirit world. Qat’muk is highly sacred to the Ktunaxa, and they believe that its spiritual value would be destroyed by the construction of the resort (Ktunaxa Nation, 2010; and see Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations), 2017).

32.1 Jumbo Glacier Resort and the Promise of Sustainability

Oberto Oberti, the mastermind behind Jumbo Glacier Resort, grew up skiing in the Italian Alps. When he immigrated to Canada and established an architecture and design practice in Vancouver, he never lost his passion for skiing. In the 1980s, he became inspired to develop a proposal for a year-round ski resort in the interior mountains of BC. Oberti joined forces with a Japanese company and in 1991 submitted a proposal for the ultimate ski resort in the Purcell Mountains, to be reviewed under BC’s Commercial Alpine Ski Policy (CASP). This policy had been conceived in the early 1980s in recognition that the provincially owned land base with its many snow-covered mountains presented fantastic opportunities for alpine tourism and recreational development.¹ After widespread consultation with the tourism industry, the BC government developed CASP, which established an incremental process designed to promote carefully planned, well-balanced, environmentally sensitive tourism (BC MLPH, 1982). By subjecting proposals to a detailed review by government agencies, along with input from the public and First Nations, CASP was intended to ensure that developments would serve the public interest. In practice, however, the public interest would prove highly contested and elusive to define.

The CASP initiative was part of a larger shift in BC government policy at the time – a move away from encouraging rapid exploitation of the province’s natural resources, towards a more sustainable approach to development. During the 1980s, mounting concerns about the environmental impacts of resource exploitation in BC, and particularly concerns about the clear-cutting of old-growth forests, had culminated in protests, civil disobedience, blockades and other conflicts. These protests sometimes aligned with the concurrent efforts of First Nations to slow or stop industrial resource exploitation in areas they claimed as traditional territories. National, even international, attention was drawn to a ‘war in the woods’ in BC that disrupted industry and confounded land use governance. Even more troubling, the conflicts exposed unresolved issues related to colonial occupation of Indigenous lands (Wilson, 1999; Braun, 2002).

Sustainable development, which was emerging at the time as a prominent vision in global discourse, offered hope for a more peaceful and prosperous future, and was mobilized by the left-of-centre New Democratic Party (NDP) government that swept into power in BC in 1991 (Owens, 2011). Sustainable development aligned perfectly with the province’s motto, Splendor Sine Occasu – Splendour Without Diminishment. In the spirit of the Brundtland Commission’s sustainable development report (WCED, 1987), provincial decision makers relished the promise that economic growth could continue, but, with careful management and new technologies, could be aligned with environmental protection and social goals to meet the needs of present and future generations. Tourism and recreation development were seen as vital elements of BC’s sustainable development strategy (Owens, 2011). Branded in tourism ads as ‘SuperNatural BC’, the province could capitalize (without diminishment) on its impressive forested and mountainous landscape in less extractive, if no less colonial, ways.

The proposal for the Jumbo Glacier Resort appeared to fit well with this buoyant zeitgeist. The project would feature lift-accessed skiing and a sightseeing gondola on four magnificent glaciers; a resort featuring hotels and condominium units; and supportive commercial services, restaurants and shops. Along with unparalleled skiing and other recreational opportunities and the accompanying economic benefits, Jumbo would take social and environmental goals into consideration. The project represented a major investment in the economically stalled East Kootenay region of BC, which was suffering due to declines in the resource-extraction industries; it featured targeted employment opportunities and other benefits for First Nations; and it would attempt to minimize ecological impacts through conscientious design, a compact footprint, state of the art technologies and a comprehensive environmental management system (Pheidias Project Management Corp., 2010).

However, despite the promise of sustainable development, relentless opposition dogged Jumbo Glacier Resort from the beginning. Opponents raised concerns ranging from threats to wilderness values, grizzly bears and community sense of place, to dubious economic feasibility and the social burden on infrastructure for nearby communities (Owens, 2011). They asserted that the project was more about real estate than recreation, and that it represented an alienation of public land for private benefit. Ultimately, they argued that it had no ‘social license’ to operate. The editor of a local paper colourfully observed that the resort represented a ‘farcical billion dollar or so project, based on rapidly melting glaciers, catering to dwindling numbers of skiers who can’t afford to play on sinking established hills, let alone what would be an elite rich person’s playground’ (I. Cobb, 2014, personal communication).

The three main Indigenous groups potentially affected by the resort diverged in their positions on the development (Owens, 2011). The Ktunaxa Nation objected to the Jumbo proposal, seeing this as yet another incursion into its unceded traditional territory. As noted earlier, the valley and adjacent mountains are recognized by Ktunaxa as Qat’muk, considered profoundly sacred as the home of Kⱡawⱡa Tukⱡuⱡakʔis – the Grizzly Bear Spirit. In contrast, the Kinbasket-Shuswap First Nation supported the project and entered into an impact benefit agreement with the developer, setting out specific economic (and possibly other) benefits to be provided to the Kinbasket-Shuswap (Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations), 2014). A third Indigenous group, the Sinixt people, opposed the Jumbo Resort, which would be established in territory that they also claim. However, the Sinixt had no formal status in the EA review, because in the 1950s the Canadian government had ruled that the Sinixt were officially extinct in Canada, since ostensibly all the remaining Sinixt people lived in the United States.²

32.2 Searching for Firm Foundations for Decision Making

In this context of conflict over the future of the Jumbo Valley, the government review process for the resort proposal sought to escape politics, parse out the facts of the case and deliver an objective, technical evaluation of the merits of the development. However, the dream of an uncontested, technical, apolitical way forward proved untenable. To the extent that a project review involves grappling with competing visions of what a place is and what should be done there, it is inescapably political (Rancière, 2003). It is about assumptions, values, ethics and aspirations – questions for which science is ill-suited. Technical studies can be commissioned to predict the impact of a project such as Jumbo on grizzly bear habitat, for example, but science cannot determine how many grizzly bears we, as a society, would be willing to forego. Science cannot dictate how to evaluate concerns about more abstract but important elements such as sense of place. Science cannot evaluate how the Jumbo Resort would impact the sacredness of a valley or how that impact should be weighed. As one government decision maker involved with the Jumbo review noted: ‘it’s really as much art as science. We hope we get a better decision by involving a lot of different people. In the end, it’s an informed judgment call’ (anonymous, 2009, personal communication).

As noted earlier, the Jumbo Resort proposal was accepted for review through the provincial government’s CASP process in 1991. However, the proposal came at a time of great change in land use governance in the province. As part of the new NDP government’s commitment to sustainable development, a major regional land use planning effort – the Commission on Resources and Environment (CORE) – was launched in 1992. The ambitious intention of CORE was to conduct large-scale planning exercises, involving extensive public and stakeholder engagement, to determine what values should prevail and guide land use in each watershed in the province. While that broad scope was never fully realized, planning negotiations among stakeholders facilitated by CORE took place in four particularly contentious regions in the province, including the East Kootenay region where Jumbo was to be sited (Owens, 2011).

Given the considerable controversy surrounding the Jumbo project, the province suspended the CASP review of Jumbo pending the outcome of the CORE planning process for the East Kootenay region. But if government officials hoped that some clear direction for decision making about the Jumbo Resort would emerge from this planning exercise, they were to be disappointed. The outcome of the CORE process was ultimately inconclusive for the Jumbo proposal. The East Kootenay Land Use Plan, prepared by CORE officials based on stakeholder negotiations, designated the Jumbo and Upper Horsethief Valley watersheds as a ‘Special Management Area’ – meaning the following: ‘enhanced levels of management are required to address sensitive values such as fish and wildlife habitat, visual quality, recreation, and cultural/heritage features. The management intent is to maintain these values in the areas while allowing compatible human use and development to occur’ (BC CORE, 1994, p. 103). The precise implications of this designation for a resort development of the type and scale proposed by Jumbo were not entirely clear and have been debated fiercely since (Owens, 2011). The regional plan stated that while the Special Management Area designation does not automatically preclude resort development, the Jumbo ‘site-specific proposal is far too detailed to be addressed’ at the regional planning level (p. 110). Instead, the plan recommended that:

The approval process for a resort development in Jumbo Creek include an environmental assessment under the provincial Environmental Assessment Act. This assessment should identify potential impacts and mitigative measures to address impacts prior to development approval. The process should also include public involvement to ensure that all values and perspectives are fully considered in a final decision.

(BC CORE, 1994, p. 110)

Supporters of the Jumbo Resort proposal asserted that this CORE recommendation vindicated the project, and that so long as the ‘technical’ EA review approved the proposal, Jumbo Resort could be interpreted as aligning with the designation in the East Kootenay Land Use Plan. Opponents of the project argued that the CORE negotiations about this issue were actually inconclusive, and certainly did not sanction a resort development of the scale of Jumbo (Owens, 2011).

Importantly, the Ktunaxa Nation was not a party in the CORE negotiations. The Ktunaxa elected to observe but not participate, taking the position that their nation is a separate government rather than an interest group and that the provincial government should negotiate directly with the Ktunaxa about land claims and a potential treaty before conducting land use planning processes such as CORE (Owens, 2011).

The result of the CORE process for Jumbo, then, was that the ultimate decision on the fate of the project was deferred. The Jumbo proposal was swept up as one of the first projects to be reviewed under the new provincial Environmental Assessment Act, which came into force in 1995. Under this legislation, EAs were mandated to identify and mitigate adverse environmental, economic, social, cultural, heritage and health effects of major development proposals in order to foster sustainability. Environmental assessment in BC is proponent-driven, in that the project proponent and its consultants conduct the studies of potential impacts and mitigation measures, and prepare an assessment report for review by the provincial Environmental Assessment Office, which then makes a recommendation to provincial cabinet ministers about whether or not the project should be approved, and with what conditions (Rutherford, 2009). Decision making in the EA review is informed by the proponent’s commissioned scientific studies along with public and First Nations’ input. The history of EAs in BC reveals that these reviews almost never result in the rejection of a project (Boyd, 2003; Haddock, 2010), but going through the process should lead to improvements in design.

For the Jumbo proposal, the EA review that started in 1995 took almost 10 years to complete. During that time, a new, right-of-centre Liberal government was elected in BC on a platform that emphasized deregulation and governmental efficiency. In 2002, this new government passed a redesigned and substantially streamlined Environmental Assessment Act (Rutherford, 2016). The BC Environmental Assessment Office then issued a transition order, transferring the Jumbo proposal once again into a new EA process. Finally, in 2004 the EA for Jumbo was completed and the province issued an EA certificate approving the project. But the EA approval did little to reduce the controversy over Jumbo Glacier Resort (Owens, 2011).

32.3 The Politicization of Assessment

Environmental assessment is often represented as a technical, neutral and apolitical process, but both opponents and supporters of the Jumbo proposal denounced its EA as anything but that. Opponents decried the EA process as a ‘rubber stamp’ for business as usual, with pre-determined decisions merely being afforded legitimacy by the review (Owens, 2011). They complained that grizzly bears and mountain goats were being sentenced to death by ‘back-room decision-makers on an island somewhere in the Pacific Ocean’ (referring to the location of the provincial capital, Victoria), while ‘global warming is rapidly rendering the Jumbo four-season ski resort an impossible dream’ (Campsall, 2003). They felt that the proposal had been pushed through the regulatory process by a growth-oriented coalition of business leaders and supportive provincial and local government officials, including a high-profile provincial cabinet minister. Even more insidious, in their view, when they showed up at public open houses during the EA they were surprised to find government officials and proponents both distributing promotional material and addressing questions, to the extent that, ‘you couldn’t tell who was who’ (Owens, 2011).

Opponents of the Jumbo project were particularly frustrated by the narrow scope of the review. Scoping in EA involves determining which aspects of a project will be evaluated and which potential impacts will be included in the assessment (Hanna, 2016). Essentially, this establishes the required information that the proponent must provide and evaluate in its scientific studies and assessment report. In determining the scope of an EA, the BC Environmental Assessment Office draws on guidance documents, international best practices and experience. Opportunities are provided for public review and comment on scoping decisions, and the proponent and government officials are expected to consult with affected First Nations (Rutherford, 2016). But inevitably, scoping involves discretion and professional judgement. Trade-offs must be made between thoroughness and efficiency, and these trade-offs are made in the context of budgetary and staffing concerns, workload pressures, institutional and political culture, and governmental mandates.

For Jumbo’s opponents, a particularly egregious omission was that the implications of climate change were largely ‘scoped out’ of the EA review (Owens, 2011). Given that the resort would rely on glaciers that were arguably melting, and that the project would presumably be a major international tourist draw with associated greenhouse gas emissions, it would seem that climate change should be a central consideration. However, to the frustration of resort opponents, this concern was almost completely excluded from the review process. The rationale provided by the EA reviewers was threefold. First, they argued that climate change was an area of ‘much uncertainty’ (BC EAO, 2004, section C.1). Second, they were also unsure about ‘how any information which the proponent could provide would be evaluated’ (BC EAO, 2004, section C.1) Finally, they accepted the proponent’s argument that climate change would not affect Jumbo as significantly as it would affect other resorts in the province. Indeed, the proponent remarkably mobilized climate change as an argument in favour of the resort. The provincial reviewers specifically referred to this perceived advantage in their report recommending approval of the project: ‘Given its elevation (1,700 to 3,419 m), the Project is at less risk from the potential effects of climate change than most other ski resorts’ (BCEAO, 2004, p. ix). A sceptic might wonder whether, even if there were still enough snow in the future to ski at Jumbo, the ski industry would continue to be viable when the rest of the resorts had closed, but the EA reviewers were satisfied with the proponent’s argument. For critics of the EA, the decision to almost completely exclude from the review an element as important as climate change was a clear indication of the dysfunction and politicization of the process (Owens, 2011).

Opponents of the resort also argued that politicization of the EA process was evident in the assessment of those factors that were included in the scope of the review. Environmental assessments are supposed to evaluate the extent to which the adverse effects of a project are ‘significant’. While such reviews involve science, they also are inescapably discretionary and ultimately about beliefs, values and judgement (Wolfe, 1987; Beattie, 1995). The review of the potential impacts of the Jumbo project on grizzly bears clearly illustrates this point.

From the outset, impacts on grizzly bears were among the primary concerns about the proposed Jumbo development (Owens, 2011). In BC, grizzlies are considered valuable in ethical, ecological and cultural terms: important in their own right, but also as umbrella or keystone species³ and charismatic symbols. The BC government’s 1995 Grizzly Bear Conservation Strategy states that the bear is ‘perhaps the greatest symbol of the wilderness’ and ‘its survival will be the greatest testimony to our environmental commitment’ (BC MOELP, 1995, p. vii). In the Jumbo EA, the study of impacts on grizzlies began with research to estimate the status of the local grizzly bear population, after which the proponent hired a consultant to model the potential impacts of the project on grizzlies. The consultant concluded that the impacts on grizzly bears would be substantial, but that he could not judge whether these impacts should be considered significant because the province had not established criteria for significance (Apps, 2003). However, he said that studies of grizzly bears in other regions had treated impacts of this magnitude as significant. He also determined that the impacts could not be fully mitigated within the Jumbo Valley itself, but could possibly be mitigated by restricting further access by motorized vehicles to neighbouring watersheds: ‘Through partial or total motorised access closures throughout the analysis area, a “no net impact” standard can theoretically be attained’ (Apps, 2003, p. 33). Note that in the absence of specific provincial criteria for significance, the consultant chose to use a standard of ‘no net impact’ on the grizzly bear population. This choice aligns with the Canadian federal Guide on Biodiversity and Environmental Assessment (CEAA, 1996, p. 3), which states that one of the principles in assessing effects on biodiversity is ‘no “net loss” of the ecosystem, species populations or genetic diversity’.

In April 2004, the BC Ministry of Environment’s large carnivore specialist weighed in on the grizzly bear issue for Jumbo, agreeing that it might be possible ‘to achieve the “no net impact” objective over the short term’ but that it would be difficult and expensive (Austin, 2004, p. 10). He argued that:

This provincial expert was also sceptical about whether the BC government would actually be able to allocate the resources that would be required to impose, enforce and monitor the mitigation regime over the long term to ensure its effectiveness.⁴ Furthermore, he recognized that the mitigation option of restricting motorized access to adjacent drainages would prove decidedly unpopular. Essentially, the local public would be restricted from accessing treasured recreation areas to offset the impacts of a resort that many of them did not want in the first place.

So, at this point (in April 2004) there was clearly much concern about potential impacts on grizzly bears. The proponent’s own consultant had predicted that the resort would have substantial impacts in the immediate valley, although he believed that these impacts could be mitigated by restricting motorized access in adjacent watersheds. However, this mitigation option would be highly unpopular. The province’s grizzly bear expert had expressed considerable concern about the project and was dubious about his own government’s capacity to institute the extraordinary measures required to mitigate, enforce and monitor effectively.

It is difficult to ascertain exactly what happened next. But, with a procedural deadline looming in the EA review, the province’s large carnivore specialist was reassigned and a new Ministry of Environment official, who had no previous involvement in the case, took over the file (Haddock, 2010). On 2 July 2004, this new official sent an e-mail to the director in charge of the Jumbo EA with a remarkably altered assessment of the significance of impacts on grizzly bears:

In review of available information, including the CEA [the cumulative effects assessment on grizzly bears undertaken by the proponent’s consultant], it has been determined that there is a low risk that the JGR project would result in a reduction of the grizzly bear population of such significance that the population in the Central Purcells GPBU [Grizzly Bear Population Unit] would become threatened. This determination considers that … mitigation programs set forth by the proponent for the area within and immediately adjacent to the CRA [Controlled Recreation Area] are fully applied … and … the proponent will … maintain their proposed monitoring program, and will adjust their mitigation programs to the fullest extent when resort-related impacts to grizzly bear populations or habitat use are evident.

(Stewart, 2004)

Note that this new assessment relies heavily on the proponent’s monitoring and mitigation programmes, and does not appear to take into account the province’s own limited capacity and poor record of monitoring and enforcement, which were of concern to Austin (2004; see also Auditor General of British Columbia, 2011). Moreover, the threshold for judging significance has shifted from ‘no net impact’ to a far less onerous standard: that the regional population would become threatened. Under BC wildlife policy, ‘threatened’ status generally means ‘likely to become endangered if limiting factors are not reversed’ (BC, 2018a).

When the Environmental Assessment Office recommended approval of the Jumbo project later in 2004, the summary paragraph explaining why the impacts on grizzly bears were not considered significant stated that there was a low risk that the project would impact bears to the extent that the population of the Central Purcells would become threatened (BC EAO, 2004). The wording was copied verbatim from the e-mail of 2 July 2004 quoted above. Notably, the contentious proposal to restrict motorized access to other drainages to offset loss of habitat in the Jumbo Valley was not even mentioned, although the proponent’s own consultant had advised that effective mitigation would require something that drastic. Of course, that was when ‘no net impact’ was the standard for judgement.⁵

Concerns about politicization of the EA process were not restricted to the opponents of Jumbo Resort. The proponent and other supporters of Jumbo also complained about the review process. However, they saw the politicization not in terms of government–industry collusion, but rather as ‘clearly favouring environmental protection’, ‘frustratingly labyrinthine’, involving ‘too much confusion, giving too much time to outlandish claims’ and ‘hijacked by the radical green agenda’ (Owens, 2011, p. 172). The proponent described the committee appointed by the EA Office to oversee the review as ‘a highly opinionated jury … including a majority of people who had a declared agenda to stop the project based on an erroneous summary of its content’ (Oberti, quoted in Owens, 2011, p. 173). Perhaps the most damning evidence of possible political interference in this direction was revealed in documents obtained by the proponent under a Freedom of Information and Protection of Privacy Act request to the provincial government in 1996, during the early stages of the review. The request turned up e-mail correspondence among staff within the BC Ministry of Environment that suggested that some of them might have been working surreptitiously to stifle the application. The strategies discussed in these e-mails included using the proponent’s funds to work on ensuring that the development did not proceed, being slow to produce requested documentation (thereby delaying the review), using further studies as a stalling technique and collecting information specifically to stop the development (Pheidias Project Management Corp., 2010). Other e-mails included inaccurate descriptions of the project, such as calling the proposed Jumbo Resort ‘a village the size of Banff’ (Banff has more than 8000 permanent residents).

The proponent was particularly frustrated by the amount of attention given in the EA review to the objections of a small local population that opposed the project, which the proponent discounted as parochial ‘NIMBYism’ (not in my backyard). For example, the exasperated vice-president of Jumbo argued:

Another supporter of the project, the provincially appointed mayor of Jumbo Glacier Mountain Resort Municipality, accused the opposition of ‘shopping around for a jurisdiction’. Resort opponents were allegedly ‘only interested in defining the context of this case as the local region because that scale supports their position. What if the province was skeptical and most local people wanted the resort? Would they still want to keep the decision local?’ (G. Deck, 2009, personal communication).

The eventual decision by the provincial government to bypass the existing local government and create a Resort Municipality can thus be seen in the context of a range of moves by both sides, working in cooperation with various allies within the process, each side trying to advance its own particular interest and to frame that interest as representing the broader public interest. The move to avoid a local rezoning hearing fit with the efforts of supporters to define the public interest at the larger, provincial, scale. Of course, opponents of the move were quick to retort that local stewardship of local places should be considered as embodying the larger scale public interest.

The complexity of this issue of local versus provincial is further illustrated by the fact that in 2009 the elected council of the local regional district actually passed a resolution by a narrow margin (eight to seven) asking the province to create the new Resort Municipality and take the issue out of the regional district’s hands (Pynn, 2009). Apparently, local councillors who voted for this resolution felt that the project ‘was too large for the local government to handle’ (CBC News, 2009). However, four of the five councillors representing areas closest to the proposed Jumbo development voted against the resolution. As one local politician observed about the rationale for asking the province to intervene: ‘That is a bunch of baloney. The project at this stage would be nothing more than a land-zoning question – it’s what the Regional District was set up to do. They should resign if they can’t do it. Regional districts all over the province handle big projects’ (quoted in Metcalfe, 2009).

32.4 The Home of the Grizzly Bear Spirit

The EA reviewers who evaluated the Jumbo Resort proposal also had the responsibility of determining the potential effects of the project on Aboriginal (Indigenous) rights (see Rutherford, Chapter 4, for a more detailed discussion of Indigenous rights and resort development in BC). Canadian courts have ruled that the federal and provincial governments have a constitutionally mandated duty to consult with potentially affected Aboriginal people, including First Nations, before making any decision that may infringe on Aboriginal rights. Governments may also be required to provide accommodation for such infringements. This duty to ‘consult and accommodate’ was clearly triggered by the application for approval of the Jumbo Glacier Resort (Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations), 2017).

The rights and beliefs of the Ktunaxa First Nation were a critical issue in the EA. In the earlier stages of the review, the Ktunaxa joined with the Shuswap Nation to participate in public hearings about the project and to engage in initial consultations with the proponent and the provincial government. After the Shuswap First Nation elected to support the project, the Ktunaxa continued on its own in negotiations with the proponent and the province. The proponent made some substantial changes to the proposed project in response to the concerns of the Ktunaxa and others, but the Ktunaxa asserted throughout the review that Jumbo Valley had special spiritual value to them. The full extent of that spiritual value was not revealed until 2009, when Ktunaxa representatives informed the province that the valley was exceptionally sacred and that construction of any permanent structures in the area would destroy this spiritual value (Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations), 2017). A BC Supreme Court judge described the Ktunaxa position as follows:

The Ktunaxa say that to allow the proposed resort in Qat’muk would desecrate this sacred site and cause the Grizzly Bear Spirit to leave. If the Grizzly Bear Spirit leaves Qat’muk, the Ktunaxa say they will no longer be able to receive physical or spiritual assistance and guidance from that spirit. Their rituals and songs about the Grizzly Bear Spirit will lose all meaning and efficacy.

(Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations), 2014, p. 8)

No accommodation would realistically be sufficient for such a loss. In 2010, the Ktunaxa issued the ‘Qat’muk Declaration’ confirming that Qat’muk is the home of the Grizzly Bear Spirit, and unilaterally proclaiming a refuge area ‘consisting of the upper part of the Jumbo valley’ and a buffer area ‘consisting of the remainder of the Jumbo watershed … so that the Grizzly Bear Spirit, as well as grizzly bears, can thrive within and around Qat’muk’ (Ktunaxa Nation, 2010).

In spite of this declaration, the provincial minister responsible for the Jumbo development decided in 2012 that the project could proceed, and stated that the consultation and accommodation measures that had been taken by the province for the infringement on Ktunaxa rights were sufficient. The Ktunaxa challenged this decision in court and, after losing the initial case, appealed all the way to the Supreme Court of Canada. In addition to arguing that they had not been adequately consulted and accommodated, the Ktunaxa asserted that the approval of this resort in the home of the Grizzly Bear Spirit violated their constitutionally protected right of freedom of religion (Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations), 2017). In November 2017, the Supreme Court issued a judgment upholding the BC minister’s decision about Jumbo. The court ruled that the state’s constitutional duty to protect freedom of religion

is not to protect the object of beliefs, such as Grizzly Bear Spirit. Rather, the state’s duty is to protect everyone’s freedom to hold such beliefs and to manifest them in worship and practice or by teaching and dissemination. In short, the [constitution] protects the freedom to worship, but does not protect the spiritual focal point of worship.

(Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations), 2017, paragraph 71)

The court also ruled that the BC Minister’s decision about the adequacy of provincial consultation and accommodation of the Ktunaxa was reasonable. The court emphasized that the Ktunaxa had negotiated with the province and the proponent for several years about possible benefits to be provided to the Ktunaxa from the project before the Ktunaxa declared in 2009 that the project could not go forward at all because it would destroy the spiritual value of the place (Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations), 2017). The Ktunaxa, however, argued that the knowledge of the true spiritual value of the place was not disclosed earlier because that specific knowledge was held only by a few Ktunaxa knowledge keepers and that Ktunaxa beliefs prevented them from sharing this knowledge more broadly except in extremely dire circumstances (Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations), 2017, Appellant’s Factum).

Thus, for the Ktunaxa the problems with the Jumbo review went well beyond politicization, and involved fundamental questions about whether the state institutions that conducted and oversaw the EA and approved the project were capable or even appropriate to deal with the norms, traditions and values of an Indigenous culture in which respect for, and secrecy of, sacred places is paramount (see Dhillon, 2017).⁶

32.5 Towards a Conclusion: Repoliticizing and Democratizing Review

The Jumbo story described above unfolded in BC, with its unique institutions, colonial legacies and oppositional politics. However, the story affords broader lessons, particularly about the myth that a simple, technical, apolitical evaluation can determine whether a contested proposal in a contested setting will meet the standards of sustainability and sustainable development. In this story we touched on four main themes:

1. The inescapability of politics and values in the purportedly scientific and technical field of environmental assessment. Although some of the questions asked in reviews of major development projects invite scientific analysis, in the end the overarching questions of what a place is and what is done there are about assumptions, values, beliefs and ethics, and thus outside of the realm of science. In the Jumbo case, the developer’s dream of an awe-inspiring tourism destination in the wilds of Canada encountered the reality of the fervent opposition of many people who lived in the region, who perceived and valued the Jumbo Valley in other, vastly different, ways. Finding the common good in the face of such conflicting perspectives and claims is a problem of political decision making (governance) not science.

2. The challenge of identifying and advancing the common good at different spatial and temporal scales (local, regional, national, short-term, long-term). For winter tourism development, this issue may surface in conflicts between state-level desires for economic development and increased tourism, versus local concerns about the effects of development on a particular place and the people who live there now and in the future.

3. The additional challenge of assessing and managing the cumulative effects of one development proposal in combination with other existing and future projects and activities. In the Jumbo case, the initially proposed mitigation measure of restricting future motorized access to other watersheds in order to allow the Jumbo Resort to proceed was not adopted in the final assessment recommendations, probably because it was likely to be unacceptable to stakeholders as a constraint on their future activities in the region.

4. The conflicts between the institutions and asserted authority of a post-colonial state government and the authority, rights and perspectives of Indigenous people who have lived and governed themselves in a particular place for millennia before the arrival of colonial ‘settlers’. In the Jumbo case, it is quite possible that the valley in which the resort is proposed has been sacred to the Ktunaxa people for more than 400 generations. In our view such deeply rooted claims need to be met affirmatively with humility and respect.

Considering the extent of the conflict and insidious manoeuvring associated with the Jumbo review and the extraordinary length of time involved, it is tempting to submit that the review process needs to be depoliticized. However, reviews of projects like this can never really be apolitical (Beattie, 1995). Questions of trade-offs, of reconciling social, ecological and economic priorities, of evaluating claims about sense of place and sacredness, and of determining what scale is most appropriate for decision making about the public interest – none of these lend themselves to technical apolitical analysis. Rather than attempting to depoliticize the review, we need to repoliticize review processes in more transparent and deeply democratic ways.⁷

Ultimately, decision making will inescapably be set in the context of competing values and beliefs, and we need to explicitly recognize it as such. We can then reject nefarious attempts to ‘escape from the conversation’ (Bernstein, 1983, p. 199); for example, by establishing a make-believe resort municipality or working behind the scenes to hinder or delay a proposal. Embracing the political, we are invited to imagine more deeply democratic forms of decision making that recognize the value but also the limitations of science and afford space for diverse voices to argue the merits of their claims about what sustainability means, and the strength of their qualifications to determine what a place is and what is done in it.

Notes

¹Most of the land base in British Columbia is considered provincial ‘Crown land’, meaning that it is owned by the BC government (approximately 88.7 million ha, or 94% of the province), although much of this tenure is contested by First Nations.

²The claims of the Sinixt to legal status in Canada have recently become stronger, due to a BC Supreme Court ruling in 2017 that a Sinixt descendant living in the United States is entitled to Aboriginal (Indigenous) rights in Canada under the Canadian constitution (R. v Desautel, 2017).

³The BC Ministry of Environment’s Ecological Restoration Guidelines (BC MOE, 2001, p. 70) define an umbrella species as ‘a species that requires large areas of habitat, and if managed for, will encompass the needs of some other species as well’. A keystone species is defined as ‘a species that affects the survival and abundance of many other species, and if removed will result in a relatively significant shift in the composition of the ecological community’ (BC MOE, 2001, p. 68).

⁴ This scepticism appears to have been justified, as subsequent evaluations of the EA process in BC have identified major shortcomings in the province’s monitoring and enforcement programmes (Haddock, 2010; Auditor General of British Columbia, 2011). For example, the Auditor General of BC (2011, p. 5) determined that ‘the Environmental Assessment Office cannot assure British Columbians that mitigation efforts are having the intended effects because adequate monitoring is not occurring and follow-up evaluations are not being conducted’.

⁵Three years later, a comprehensive DNA study of grizzly bears conducted for the BC Ministry of Environment (Proctor et al., 2007) found that there were far fewer grizzlies in the Central Purcell Population Unit than the government’s previous habitat-based estimates used in the Jumbo EA had indicated. The new research estimated that there were 87 grizzly bears rather than 150. Yet the EA approval for Jumbo was not modified as a result of this new research, and the Jumbo Glacier Resort Master Plan issued in 2010 (Pheidias Project Management Corp., 2010) still quoted the higher numbers used in the 2004 EA report.

⁶During the period of time that the Ktunaxa case challenging the approval of the Jumbo Resort was working its way through the courts, Oberto Oberti finalized plans for another large all-season resort in BC, approximately 500 km north of the Jumbo Valley, near the mountain community of Valemount. The contrast between the history of the Valemount Glacier Resort proposal and the Jumbo case is striking. In Valemount, the Simpcw First Nation, in whose traditional territory the resort will be constructed, supported the project (Oberti Resort Design and Pheidias Group, 2016). According to Simpcw Chief Nathan Matthew, ‘We were in at the very beginning of the planning’ (quoted in Ebner, 2017). The developer signed a Memorandum of Understanding and an Impact and Benefits Agreement with the Simpkw, under which the First Nation will receive property within the resort village and revenues from the project (BC, 2017; Matthews, 2017). As partial compensation for the resort development, the BC government transferred Crown land to the Simpkw in another area of Simpkw traditional territory (CBC News, 2018). The Village of Valemount also supported the project. According to the proponent, it was the mayor and council of Valemount who first contacted Oberti about the possibility of developing the resort, and community members were involved early in the planning process, including in the decisions about the location and scope of the project (Oberti Resort Design and Pheidias Group, 2016).

⁷At the time of writing this chapter, BC has just passed legislation creating a new Environmental Assessment Act, which should come into force in late 2019 (BC, 2018b). The province has not yet finalized and released regulations and policies specifying the details of the EA process under the new legislation, but the early promotional material at least offers some hope that the new process will begin to address problems revealed in the Jumbo case. The three stated goals of the revisions to the EA process are as follows:

Enhancing public confidence by ensuring impacted First Nations, local communities and governments and the broader public can meaningfully participate in all stages of environmental assessment through a process that is robust, transparent, timely and predictable; Advancing reconciliation with First Nations; and Protecting the environment while offering clear pathways to sustainable project approvals by providing certainty of process and clarity of regulatory considerations including opportunities for early indications of the likelihood of success.

(BC, 2018b)

There is a decided emphasis in the new legislation on early engagement ‘to identify interests, issues and concerns of Indigenous nations, stakeholders, and the public, … including identifying serious issues with the project proceeding through an EA’ (BC, 2018c, p. 5). Also emphasized is a commitment to government-to-government negotiations and a ‘clearly defined process for seeking consensus with participating Indigenous nations, including a number of opportunities identified throughout the process that aim to secure consent on decisions’ (BC, 2018c, p. 5). It is less clear whether the current BC government has the appetite for a renewed commitment to broadly participatory, comprehensive regional land use planning. However, by building on past experiences with consensus-based planning in the province, supported by regional cumulative effects assessment, and combined with a genuine commitment to reconciliation with First Nations, the provincial government could establish a better mechanism for working out competing land use values. Environmental assessment could then be deployed more narrowly to assess potential impacts of specific projects.

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Legal Cases Cited

Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations), 2014 BCSC 568.

Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations), 2017 SCC 54.