Mountain Resorts Branch leaves Singing Pass skiers in legal limbo

October 22, 2016

To recap, on August 9th of this year, 2020 wrote to the Minister of Forests, Lands and Natural Resource Operations regarding the obligation of Whistler Blackcomb to restore public parking and vehicular access to the Singing Pass trail head at the park boundary. See the news blog here:

Read more about the Singing Pass Trail fiasco here: Singing Pass Trail fiasco

On September 30th, we received a response from Mr. Norman Lee, Executive Director, Mountain Resorts Branch via email. The second paragraph of his response is quoted below.

Whistler Blackcomb has a legal obligation to provide public access through both its Whistler Mountain and Blackcomb Mountain Controlled Recreation Areas (CRA), and this is enforced in the 1982 Whistler Master Development Agreement (MDA), Article 7.02(n) and Article 17. The requirement for public access extends to pedestrian access only, and as such, is subject to the rights of Whistler Blackcomb to control access within the CRA. The existing Singing Pass Trail is not a registered interest in the land. The trail is not surveyed, nor is it tenured under Provincial legislation; therefore, it is not considered a designated statutory right-of-way and Article 14.06 of the Whistler MDA does not apply.

In his response there is no mention of the "public access road" and "park access right-of-way" that we raised with the minister. The Fitzsimmons Creek road is clearly designated in Schedule A of the 1982 Whistler MDA as a public road and park access right-of-way. Nor is there mention of the "parking lot" at the end of the road, which is clearly marked in the schedule as adjacent the park boundary. And the schedule shows the "hiking trail" to Singing Pass beginning at the parking lot. Mountain Resorts Branch would have us believe that by not acknowledging these features that they do not exist. If they did they would be unable to deny the impossible position it puts them in arguing for the status quo.

Schedule A page 1 is found here:

Schedule A page 2 is found here:

Legal limbo

The fact that the road is clearly marked as "public access road" and "park access right-of-way" in Schedule A of the MDA is extremely important, which is a point to be elaborated on. But, let's for the moment assume the Singing Pass Trail originates at the village. That means an extra five kilometers of boring logging road must be walked before reaching the old trail head. And, according to article 7.02 (n) of the 1982 MDA, any person is permitted to pass and repass by foot during the months of May to November. But, there is no such article permitting any person to pass December to April. That means backcountry skiers and snowshoers in the winter and spring pass into the park only at the pleasure of Whistler Blackcomb. The intent of the 1982 MDA is that the public may transit the road year round.

Up until the road first slumped in 1991, it was possible to drive to the trail head at the park boundary. Rupert Merer, a Whistler-based researcher and member of the Alpine Club of Canada, provided the following historical information to our organization.

But all was well for hikers until 1991 when the Fitzsimmons slump or slide occurred. The slump closed the access road below the parking lot, and later Whistler built a gate across the bottom of it. Was the gate legal? Probably not, because the 1982 MDA required Whistler to provide road access to all parking lots. Whistler then developed the bike park across the access road and took firm ownership of it.

Article 4.03 of the 1982 MDA states,

Whistler [Mountain] shall provide or cause to be provided Access Routes (a) by way of dedicated or gazetted road or by way of right-of-way to each Parking Facility.

Schedule I of the MDA states,

Whistler [Mountain] covenants and agrees with the Province as follows: (e) to maintain or cause to be maintained and to provide snow removal on all Access Routes and Parking Facilities.

It is a fact that Whistler Blackcomb did not repair the slump. That means they failed their undertaking in Schedule I for the last twenty-five years.

It is a fact that Whistler Blackcomb gated the road. As it is a public road, that is clearly a violation of article 4.03.

It is a fact that Whistler Blackcomb improperly states the Singing Pass Trail trail head is in Whistler Village rather than the "parking lot" adjacent the park boundary. Again, the trail head is clearly shown in Schedule A at the parking facility adjacent the park boundary. If we accept Whistler Blackcomb's position, persons wishing to transit the controlled recreation area to reach Garibaldi Park are giving up their right to do so December through April.

It is also a fact that Whistler Blackcomb have failed to establish the statutory right-of-way to the Fitzsimmons Creek "parking lot". Here we understand the term "statutory right-of-way" to be synonymous with the term "gazetted road" in article 4.03. To "gazette" the right-of-way or make it statutory just means that a legal survey of the road is registered under the Land Act. The wording of Article 4.03 is unambiguous. Article 4.03 states it is the obligation of Whistler Blackcomb to provide the legal survey, much the same as they do for chairlifts and gondolas. Several such statutory rights-of-way up Fitzsimmons Creek have recently been registered under the Land Act, for example, the road to the Innergex independent power project, the Olympic sliding centre and the Peak-to-Peak gondola.

Make good on obligations

We demand Mountain Resorts Branch immediately instruct Whistler Blackcomb to make good on its obligations before any further mountain resort phases of development or the Renaissance project are approved. Once the legal survey is done, article 14.06 of the MDA would apply.

Article 14.06 of the MDA states:

An instrument conveying Crown Land to Whistler under this Article shall be subject to any statutory right-of-way that burdens the Crown Land.

Under the Land Act, the public would be the dominant tenement along the 20 meter wide right-of-way and Whistler Blackcomb the servient tenement. That would mean that the public right to transit the road cannot be interfered with by other uses within the controlled recreation area such as downhill skiing, ATV tours and the mountain bike park.

Mountain Resorts Branch have as their articles that the road must be gazetted. (See their document Ministry of Forests, Lands and Natural Resource Operations, Land Use Operational Policy, All Seasons Resorts). Some relevant policy considerations from the policy document are:

  • Crown land values are managed for the benefit of the public. (p. 7)
  • Public accountability is maintained during the allocation of Crown land. (p. 8)
  • Minimize conflict between competing land uses. (p. 8)
  • The statutory right of way document to be used for Recreation Improvement is the form attached as a schedule to the MDA. (p. 28)

Note: the final bullet point. Schedule A of the 1982 MDA is such a form and it defines the statutory right-of-way up Fitzsimmons Creek road.

Mountain Resorts Branch is derelict in their duty to manage Crown land for the benefit of the public. They treat their obligation to the public in a cavalier manner and side with the developer to minimize its obligation to any duty other than enriching the shareholders of Whistler Blackcomb and the government coffers.

Mountain Resorts Branch is duty bound by their own policy to instruct Whistler Blackcomb to honour the intent outlined in Schedule A of the MDA that shows Fitzsimmons Creek road as a public road with a parking lot adjacent the park boundary.

Article 5.04 of the MDA states,

Whistler [Mountain] shall not without the consent of the Province... proceed with the construction of Recreation Improvement in a succeeding Mountain Phase until all of the Recreation Improvements in preceding Mountain Phases are in a state of Substantial Completion.

Withhold approval of subsequent Mountain Phases

Whistler Blackcomb has failed to satisfy all conditions required to move to the next Mountain Phase of development. It has failed to maintain the Fitzsimmons Creek road and parking lot. It has not done the legal survey on the road and registered it under the Land Act. These are grounds for withholding approval of subsequent mountain development phases and the Renaissance project. Mountain Resorts Branch guidelines say the same thing, "Each phase of a resort’s development must represent a finished and appealing product".

We have shown this issue is not complex in the slightest. It is a case of a large corporation gaining the ear of government to enrich itself by depriving the public of its rights. We call upon Mountain Resorts Branch to honour its commitments to the public. Withhold approval of further mountain development until such time as the Singing Pass parking issue is resolved in favour of the public. Pave the road to the park and provide public parking.

As always, we welcome your comments.

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