West Kootenay EcoSociety files petition against Jumbo

West Kootenay EcoSociety executive director David Reid stands outside the Nelson courthouse Monday afternoon after submitting an application for a judicial review of the Jumbo Glacier Mountain Resort Municipality.  - Bob Hall photo
West Kootenay EcoSociety executive director David Reid stands outside the Nelson courthouse Monday afternoon after submitting an application for a judicial review of the Jumbo Glacier Mountain Resort Municipality.
— image credit: Bob Hall photo

West Kootenay EcoSociety executive director David Reid calls it a significant moment in the 20-year fight against the proposed Jumbo Glacier Resort development northeast of Nelson.

On Tuesday afternoon, Reid and EcoSociety lawyer Judah Harrison filed a petition in BC Court in Nelson to challenge the proposed mega-resort. The application for judicial review argues that the appointment of municipal councilors without any electors violates the constitution and various provincial statutes.

“One of the things that makes this day special is that this is an opportunity for us to really take specific legal action to try and put a roadblock to this project instead of reacting to what the province is doing time and again,” Reid told local media outside the courthouse.

The BC government made significant changes to the Local Government Act through Bill 41 on the last day of the spring session in 2012. The new law removed the previous requirement that resort municipalities have residents and that the residents support the creation of the municipality. The Union of BC Municipalities and the Regional District of Central Kootenay passed resolutions opposing the changes.

Although the province has previously designated municipalities with no residents, there has never been a legal challenge.

“We deliberated really hard about this decision whether to file this petition,” said Reid. “For our board of directors and our advisors it came down to the issue that we simply couldn’t let this perversion of democracy go unchallenged.”

The court filing argues that although the constitution grants sweeping powers to the province to establish municipalities, there is a common law understanding that a municipality is a democratic institution created for a public purpose. Therefore, the creation of a municipality with no residents for the purpose of furthering a private development is inherently unconstitutional. In addition, other parts of the Local Government Act and the Community Charter refer to municipalities as having residents.

“Even though there is some risk to our society and it is a huge investment of time and energy, the risk is well worth it for benefit of making a clear stand for democracy and our constitution,” said Reid.

The EcoSociety expects to ask the province for a no-cost agreement which would protect either side from having to pay legal costs if they lose. Reid said the biggest risk will come if the province does not agree to those terms.

“Our risk is much greater than theirs,” Reid said of the taxpayer supported government lawyers.

At full build-out, the year-round Jumbo Glacier Resort plan calls for 6,300 beds including hotels and private residences. The grand plan calls for more than 20 ski lifts, with over 2,500 visitors per day in the winter. The proposed land tenure includes approximately 6,500 hectares in the Purcell Range 53 kilometres west of Invermere on a former sawmill site.

The EcoSociety claims that the proposed resort would create an average of 943 car trips per day along the Jumbo Glacier Road and would create a significant barrier for grizzly bears and other wildlife.

The provincial government appointed Jumbo Resort supporter and former Radium mayor Greg Deck as mayor. Nancy Hugunin and Steve Ostrander were appointed to council and Phil Taylor was hired as the interim corporate officer, tasked with getting the municipality up and running by its incorporation date of February 19, 2013. The province has earmarked $260,000 of taxpayer money to support the creation of the municipality and its operation.

A judge will review the case and decide whether there are grounds for it to proceed. Reid estimates that 80 hours have been spent on putting together the petition to this point. The hope would be to have it come before the Supreme Court in five to six months.

The BC Attorney General and the Minister of Culture, Community Development, and Sport have been named as parties in the case.

“I expect a fulsome and vigorous response by the government,” said Harrison, who moved his law practice to Nelson just over a year ago after spending three years in Vancouver with Eco Justice. “I expect them to attack us on every level they can on this. I think our lawsuit scares them and puts their backs up for sure. They will not ignore this.”

With a provincial election this spring, the political landscape in the province could change dramatically, but Reid is not sure if a new government would be able to stop this without cases like the EcoSociety’s going forward.

“I can’t speculate what a new provincial government might do,” Reid said of the chances of an NDP victory in May. “[NDP leader] Adrian Dix has gone on the record as being vocally opposed to Jumbo when he came to Nelson in February of 2012, but it’s unclear what a new government can do to stop the project. Certainly our hope is that whatever government is in power at the time that the decision is made by the court, that it will give them pause to think about their responsibility to the citizens of British Columbia.”

Reid said the effort being put forward by the EcoSociety is more than a statement, it’s a battle he thinks they can win.

“I think we will be successful, we have a rock solid case,” he said.

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