The stalled Garibaldi at 樱桃视频resort proposal on Brohm Ridge is sliding deeper into legal conflicts and the start date for construction remains elusive.
There was yet another B.C. Supreme Court hearing this week as lawyers for Garibaldi at 樱桃视频Inc. (GAS), the province of B.C. and the 樱桃视频Nation continue to sort out a major dispute.
GAS wants to move ahead with the approvals and planning process while the 樱桃视频Nation argues it wasn't properly consulted after the project took a new direction under new owners. The natives want full and meaningful consultation on major decisions concerning the proposal.
The wishes of GAS did not come true as Madame Justice M. Marvyn Koenigsberg decided only to continue hearing legal submissions after two days of hearings this week.
This court process started when the 樱桃视频Nation filed a lawsuit in October of 2003 asking the courts to quash key decisions made by Land and Water B.C. (LWBC). The native group alleged their rights were violated when LWBC approved GAS applications to expand the size of the resort study area and to approve a change in the project ownership.
The arguments were made in September of 2004 and Koenigsberg released her written ruling on Oct. 15, 2004. Instead of quashing the LWBC rulings, Koenigsberg ordered the 樱桃视频Nation, LWBC and GAS Inc. to go back to the point before the decisions were made and renegotiate. She gave the sides 90 days to work through their issues.
According to testimony on Monday (Feb. 28) there were three meetings bet-ween the sides after Koenigsberg made her ruling.The first meeting in December was mainly an opportunity to exchange information and the second meeting in January included discussion of the issues between the sides. During the court hearing on Monday it was revealed LWBC reconfirmed its original decision to allow the project to go ahead. The decision upset the 樱桃视频Nation. A Feb. 7 meeting between the sides bogged down over the LWBC decision to allow the project to advance to the next stage in the LWBC process.
A letter formally announcing the decision was delivered on Feb. 18.
Koenigsberg said at the court hearing this week she was surprised the matter was back before her.
"We're infinitely worse off today than when we went to court," said 樱桃视频Nation lawyer Greg McDade. "We cannot get out from under the problem that LWBC can't change its position for fear of a GAS lawsuit."
McDade made it clear the 樱桃视频Nation is not ready to endorse a 4,900-hectare (12,112-acre) resort with a daily skier capacity of more than 14,000 in its traditional territory without meaningful discussion between the province and the 樱桃视频Nation. The original resort concept, before the expansion decision by LWBC, was only 2,580 hectares (6,260 acres) with a daily skier capacity of 12,000.
Koenigs-berg said she isn't comfortable with her lack of knowledge of the project proposal and its various incarnations and GAS lawyer Chuck Willms responded by playing down the increasing project size.
Willms was directly involved in the Haida and Taku Supreme Court of Canada rulings last year and the landmark 1997 Delgamuukw decision. The two recent cases confirmed native bands do not have the power to veto large projects like the one proposed by GAS but at the same time indicated the provincial government has to engage in "deep consultation" with native groups before decisions are made.
"My client is prepared to compromise in one of two ways," McDade told the court. "Let's look for a way to build this somewhere else or in some other way. If there has to be a ski hill make it smaller and infringe less."
GAS wants to get the revised project into the environmental assessment process once the size and scope of the project is established. The 樱桃视频Nation on the other hand objects to the current size of the project and wants more discussion on the topic before the proposal enters an environmental assessment process.
Koenigsberg noted the opposing objectives means time is of the essence for GAS and time is not of the essence for the 樱桃视频Nation.
"You have to go through the exercise," Koenigsberg said. "Going through the process is important."
She said the province and GAS have the impression the 樱桃视频Nation wants to drag this out until the project isn't viable.
"The 樱桃视频Nation does not have the right to say no but B.C. has no right to run roughshod over the 樱桃视频Nation and say 'yes' for no good reason," McDade said.
Koenigsberg suggested the sides enter a mediation process. Instead of making a ruling this week she decided to continue hearing more legal submissions from the lawyers on March 21.
