Resort will need second environmental assessment, after failing to get 'substantially started'
A recent B.C. Court of Appeal ruling found a proposed ski resort needs a second environmental assessment because not enough construction had been completed more than a decade after their first.
Roy Millen is a partner with at Blake Cassels & Graydon LLP, in Vancouver. Millen’s practice includes regulatory and Aboriginal law, commercial litigation and international trade and he often assists clients through the environmental assessment process. He says the findings in Glacier Resorts Ltd. v. British Columbia (Minister of Environment), 2019 BCCA 289 are a lesson to proponents of other projects, that regardless of unforeseen delays and an active pursuit of regulatory approval, an environmental assessment certificate will run out if the project is not “substantially started,” before it expires.
Glacier Resorts was certified under the Environment Assessment Act to build a ski resort in East Kootenay in 2004. The terms of the assessment required the project be “substantially started” within five years. The company was given another five years in 2009 and in 2015, the B.C. environment minister decided the original assessment had expired and the company would need another one.
The “‘substantially started’ requirement is quite a physical requirement,” says Rochelle Collette, commercial litigation associate who does regulatory, environmental and Aboriginal law at Blake Cassels & Graydon LLP.
The company sought judicial review and accused the minister of unreasonably ignoring the “mitigating/limiting factors,” that held up the project. First, there was a judicial review of the environmental assessment certificate. The project required a master development agreement from the province, which was approved in 2007, but wasn’t executed until 2012. The Ktunaxa Nation challenged the MDA and took the case all the way to the Supreme Court of Canada, though Glacier ultimately prevailed. Before the MDA was in place, little construction could be done because it was needed for municipal rezoning. Also, in 2012 the province removed a bridge needed to access the project site and Glacier didn’t receive a permit to build a new one until two years later.
“That's something that proponents are going to have to grapple with as they go forward,” says Millen. “… The reality that, taking a while to deal with First Nations and municipalities and provincial government entities – you don't get much credit, when you go to your determination of whether your project is substantially started. You still have to have physically started the project.”
The review judge agreed with Glacier, found the minister’s lack of interest in the reasons for the delay unreasonable and sent the issue back to the minister for reconsideration. Both the environment minister and the company appealed.
Justices Harvey Groberman Gregory James Fitch of the B.C. Court of Appeal focussed on whether the minister’s original decision was reasonable. The majority of the court was persuaded it was and reinstated the order. Their colleague Justice John Hunter dissented. Hunter said that for the minister to “confine her assessment” to whether the project was “substantially started” without regard to the context of numerous delays and the extent to which construction could have progressed otherwise, was unreasonable.
The Court of Appeal applied the test of reasonableness more broadly and gave greater deference to the minister’s decision than did the review judge, says Millen.
“That's an important takeaway for proponents to understand,” he says. “While it is a legal decision, by the Minister, it will be judged at the reasonableness level… which means that the minister has a broad range of acceptable outcomes that the court will uphold. So, discretion at the ministerial level and deference of the court to the minister’s decision is an important aspect of the law as it stands now.”