February 10, 2017
GP2020 wrote to Mr. Norman Lee, Executive Director, Mountain Resorts Branch to withhold its approval of all subsequent Mountain Phases of development at Whistler Blackcomb until such time as all its conditions regarding previous Mountain Phases are met. The core issue is the failure of Whistler Blackcomb to register the interest of the public in the matter of public vehicle use of Fitzsimmons Creek road.
Here is the text of the letter to Mr. Lee.
February 10, 2017
Mountain Resorts Branch
PO Box 9852 Stn Prov Govt
Dear Mr. Lee,
Re: Your reference: 224595
Thank you for your email response dated September 30th, 2016 on the matter of public vehicle access to the designated parking lot at Singing Pass trail head, vicinity of Harmony Creek adjacent Garibaldi Provincial Park boundary at Fitzsimmons Creek. Your rebuttal hinges on the following statement, which I quote from your response:
The trail [Fitzsimmons Creek road] 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.
Article 14.06 of the MDA states:
An instrument conveying Crown Land to Whistler [Mountain] under this Article shall be subject to any statutory right-of-way that burdens the Crown Land.
Mountain Resorts Branch have as their articles that the road must be gazetted. (See your document Land Use Operational Policy, All Seasons Resort dated January 2, 2013, page 28.)
A statutory right of way creates an interest in the land and requires a legal survey. The statutory right of way document to be used for Recreation Improvements is the form attached as a schedule to the MDA or OA.
Schedule A of the MDA is such a form and it clearly shows Fitzsimmons Creek road, the parking facility adjacent Garibaldi Provincial Park boundary in the vicinity of Harmony Creek, and the hiking trail beginning from the designated parking lot. A high resolution image of Schedule A of the MDA is here: Schedule A of MDA
Schedule A, page 2 clearly designates Fitzsimmons Creek road as both "public access road" and "park access right-of-way". An annotated image of Schedule A, page 2 (annotations provided by Mountain Resorts Branch) is here: Schedule A, page 2
Intent of the MDA
The intent of the 1982 MDA is that the public may transit the road year round and public vehicles during the months of May through November.
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 my 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, according to Article 7.02(n) of the MDA persons wishing to transit the controlled recreation area to reach Garibaldi Park are giving up their right to do so December through April.
Failure to establish statutory right-of-way
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 meaning 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.
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 freely transit the road year round cannot be interfered with by other uses within the controlled recreation area such as downhill skiing, ATV tours and the mountain bike park.
Withhold approval of subsequent Mountain Phases at Whistler Blackcomb
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 call upon Mountain Resorts Branch to honour its commitment to the public. Mountain Resorts Branch must 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 of Fitzsimmons Creek road is done, article 14.06 of the MDA would apply and public vehicle access to the park boundary must be restored.