March 29, 2017

Honourable Suzanne Anton, Q.C.
Room 232, Parliament Buildings
Victoria BC
V8V 1X4

By Email: This email address is being protected from spambots. You need JavaScript enabled to view it.

Dear Honourable Minister,

I am writing to you in your capacity as Attorney General for British Columbia. I am requesting the intervention of the Attorney General in the matter of a public nuisance created by Whistler Blackcomb resort situated in the Resort Municipality of Whistler. My organization, Garibaldi Park 2020 has written several times in the last year to Mr. Norman Lee, Executive Director, Mountain Resorts Branch in the matter of private vehicle use of the Fitzsimmons Creek roads leading to the Garibaldi Provincial Park boundary in the vicinity of Harmony Creek (FLNRO file reference no. 224595, 227618, 227925). The public nuisance arises under the Canadian common law doctrine of dedication and acceptance as Whistler Blackcomb has illegally gated both public Fitzsimmons Creek roads thereby preventing long standing private vehicle use and in particular, private vehicle access and parking at the Singing Pass trail head adjacent the park boundary. Why is it a public nuisance? The illegal gating of the roads adds a distance of some ten kilometers for a return hike to Singing Pass. It makes Singing Pass a longer and exhausting day, particularly for seniors, families with children and all but the extremely fit. Hikers spend less time exploring the beauties of Garibaldi Provincial Park, instead are hiking relatively boring logging roads. Further, Whistler Blackcomb has failed to maintain the public road on the south side of Fitzsimmons Creek as required in its Master Development Agreement (MDA) with the Province of British Columbia.

A short history of the roads. A prospector's trail up Fitzsimmons Creek was built to Singing Pass, now in Garibaldi Provincial Park, and a miner's cabin constructed prior to World War I. The prospector's trail followed the valley bottom of Fitzsimmons Creek ascending to Singing Pass up Melody Creek. In the late 1950s, the Fitzsimmons valley was logged right up to the park boundary and logging roads were built on both the south and north sides of the creek. In 1964, the Varsity Outdoor Club (VOC) of the University of British Columbia working with BC Parks relocated the Singing Pass trail head from the miner's trail in the valley bottom to the end of the logging road on the south side of Fitzsimmons Creek. A parking facility with space for about twenty vehicles and outhouse were constructed. In the mid to late 1960s, mining permits were issued in the vicinity of Harmony Creek adjacent to Garibaldi Provincial Park. A mining road was extended from the parking lot to the park boundary. In 1972, BC Parks re-established the trail from the parking lot along the newer mining road. In 1982, Whistler Mountain Ski Corporation entered into its first MDA with the Province. The south side of Fitzsimmons Creek outside of Garibaldi Provincial Park was added to the corporation's controlled recreation area (CRA). In the agreement, Fitzsimmons Creek road was explicitly dedicated as a "public access road 20 meters in width" and "park access right-of-way." In 1991, the road was damaged by a natural landslip approximately 2.5 kilometers up the road. Private vehicles were blocked from reaching the trail head but continued to park before the landslip. Whistler Blackcomb did not repair the road slump as required in its MDA. Around 1995 or perhaps later, Whistler Blackcomb illegally gated the road on the south side thereby blocking private vehicles. In 2016, approximately $50,000 was spent by the Ministry of Forests, Lands and Natural Resource Operations to repair the road slump. In the 2000s, the original forestry road on the north side of Fitzsimmons Creek was upgraded to service the 2010 Whistler Olympic sliding centre and the Innergex run-of-river power project. The public road is gated at the Whistler Sliding Centre. Currently, commercial vehicle operations including Zip lines and all terrain vehicle tours are permitted on both roads whereas private vehicles are prohibited.

It is our position that under the Canadian common law doctrine of dedication and acceptance, public rights-of-way created in the manner described result in the public at large acquiring legally enforceable rights to use and enjoy the highways. Section 23 of British Columbia's Land Title Act defines a highway to include "a public street, path, walkway, trail, lane, bridge, road, thoroughfare and any other public way." Furthermore, lessees, in this case Whistler Blackcomb, do not have the power to deny the rights.

We rely for our understanding of the doctrine on an article entitled Highways, Parks and the Public Trust Doctrine, by Andrew Gage of West Coast Environmental Law in the Journal of Environmental Law and Practice, October 2007 published by Thomson Canada Limited. To quote from page 3 of the article,

To paraphrase the case law, the dedication of a public highway can occur when a land owner indicates an intention to dedicate a right of way on his or her property for use by the public. If the public proceeds to use the highway, this signifies the public's acceptance of the dedication and a public right in the right of way is created. Public highways in this context include all public rights of way, including public footpaths.
(i) Dedication
An owner dedicates land by indicating an intention to set the land aside for the use of the public (i.e. as a public highway), not as a mere permission or licence, but for the public's permanent use. The dedication of land for a public highway may take place explicitly--when the owner directly invites the public to use the property--or it may be implied.
(ii) Acceptance
The public indicates acceptance of a dedication of a right of way (whether explicit or implied) by using the land as a road or path: if there is public use of a dedicated public right of way then the public will be held to have accepted the dedication.

There is implied dedication of Fitzsimmons Creek roads as a public roads since at least as early as the mid-1960s. There is the work performed by the VOC and BC Parks in 1964 to create the parking facility at the Singing Pass trail head. In 1968, the British Columbia Mountaineering Club wrote to the Honourable William Kenneth Kiernan, Minister of Recreation and Conservation with the concern that Garibaldi Lifts Ltd., the precursor company of Whistler Mountain Ski Corporation, now Whistler Blackcomb resort, ensure that existing access routes into Garibaldi Park be preserved. The letter specifically mentions Fitzsimmons Creek access. Mr. Kiernan replied, "We can assure you that no Park Use Permit will be issued to the company without due consideration being given to the effect that it will have on public access to and within Garibaldi Provincial Park."  These letters reside in the North Vancouver Archives with copies on our web site https://garibaldipark2020.com. Indeed, Garibaldi Lifts Ltd. used Fitzsimmons Creek road to service its Blue Chairlift and its use coexisted for over 30 years with the public use and private vehicle access.

Explicit dedication occurred in 1982 when Mr. Peter Alder, Vice President, Whistler Mountain Ski Corporation signed its first MDA with the Province. In private conversation last December with Mr. Chris Ludwig, co-founder of Garibaldi Park 2020, Mr. Alder stated that the MDA explicitly dedicated that private vehicular access be continued up Fitzsimmons Creek through the CRA to the parking lot at the park boundary. To that effect, the MDA includes a Schedule A containing a map of the road. The map clearly delineates the Fitzsimmons Creek road, the parking lot at the park boundary and the Singing Pass trail beginning at the parking lot. The road is shown as a different line type from the trail and on page 2 of the schedule is labelled as "public access road 20 meters in width" and "park access right-of-way". Further, Schedule I of the MDA contains a covenant that the resort will maintain all access routes and parking facilities. These legal documents are readily available on our web site https://garibaldipark2020.com or from Mountain Resorts Branch of the Ministry of Forests, Lands and Natural Resource Operations.

We, at my organization Garibaldi Park 2020, respectfully request the Attorney General act now to abate the public nuisance created by Whistler Blackcomb resort. Enjoin Whistler Blackcomb to remove the gates on both public roads up Fitzsimmons Creek and to restore and maintain the public right-of-way and parking lot on the south side of Fitzsimmons Creek. Compel Mountain Resorts Branch to honour its own policy to act in the public interest and follow through with its obligation to facilitate private vehicle access up Fitzsimmons Creek roads as required by Canadian common law and indeed, the MDA that it oversees. Furthermore, we note that the resort must fully comply with its legal obligations before it can proceed with further mountain development phases or its so-called $345 million Renaissance project. We respectfully request you place an injunction on further mountain development until the public nuisance is fully abated.
Sincerely yours,

[name withheld], co-founder, Garibaldi Park 2020

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