Letter from Garibaldi Park 2020 to Honourable Steve Thomson on the subject of the abatement of the public nuisance created by Whistler Blackcomb resort in the matter of Singing Pass trail head access. Response from Ms. Madeline Maley, Acting Assistant Deputy Minister, Integrated Resource Operations Division assigning reference no. 227925.
March 8, 2017
The Honourable Steve Thomson
Minister of Forests, Lands and Natural Resource Operations
Room 248, Parliament Buildings
I am a co-founder of the organization Garibaldi Park 2020. Our organization is dedicated to reopening the master plan for Garibaldi Provincial Park for further public recreation improvements and seeks to correct what we consider several long-standing problems with park management. I originally wrote to you April 21st, 2016 about restoring public vehicle access up Fitzsimmons Creek road to the original Singing Pass trail head adjacent the Garibaldi Provincial Park boundary in the vicinity of Harmony Creek.
Fitzsimmons Creek road is described in the 1982 Master Development Agreement (MDA) with Whistler Mountain Ski Corporation in Schedule A as a public access road 20 meters in width and park access right-of-way. The documents and maps are available from Mountain Resorts Branch or under file no. FNR-2016-65280 with the office of Information Access Operations, Ministry of Finance. The documents were signed on behalf of Whistler Mountain Ski Corporation by Mr. Peter Alder, Vice President.
Mr. Jim Standen, Assistant Deputy Minister, BC Parks and Conservation Officer Service Division replied May 18th, 2016 on your behalf with reference no. 298622 to my letter of April 21st, 2016. In his response, Mr. Standen failed to provide any justification for his statement that the legal obligation of Whistler Blackcomb (a subsidiary of Vail Resorts Inc.) to provide public access through its controlled recreation area (CRA) extends to pedestrian access only. He also provided me with a backgrounder document entitled "Public Access to Singing Pass" produced on April 21st, 2016 by Ms. Tori Meeks, Acting Senior Manager, Major Projects, Mountain Resorts Branch. The backgrounder contains low resolution images of Schedule A maps from the 1982 MDA. Higher resolution images of the same maps clearly show Fitzsimmons Creek road as extending approximately five kilometers up Fitzsimmons Creek from Whistler village and terminating at a parking lot. The distinctly marked hiking trail to Singing Pass in Garibaldi Provincial Park begins at the parking lot. The road is labeled in Schedule A as "public access road 20 meters in width" and "park access right-of-way". The parking lot and hiking trail are so labeled.
Considering the inadequacy of Mr. Standen's response to my initial letter, I subsequently wrote to you again on August 9th, 2016. I pointed out the shortcomings in Mr. Standen's response and urged you to enjoin Whistler Blackcomb to comply with its legal obligation to restore and maintain the public road and parking facility as described in its Schedule I of the MDA. I pointed out that in our opinion, Fitzsimmons Creek road is a statutory right-of-way and that Whistler Blackcomb is in violation of the Land Act by gating the road, thereby restricting public vehicle access up the road and that Whistler Blackcomb is the servient tenement to that of the public under Article 14.06 of the MDA.
On September 30th, 2016, I received a response from Mr. Norman Lee, Executive Director, Mountain Resorts Branch under reference no. 224595. Mr. Lee reiterated the position that public access to the road extends to pedestrian access only. He justified his position by stating that the road is neither surveyed nor tenured; therefore it is not considered a designated statutory right-of-way and that Article 14.06 of the Whistler MDA does not apply.
On February 10th, 2017, I wrote back to Mr. Lee regarding the failure of Whistler Blackcomb to establish the statutory right-of-way along the Fitzsimmons Creek road as required under Article 4.03 of the MDA. The Article clearly states it is the responsibility of Whistler Blackcomb to provide a dedicated or gazetted road or by way of right of way to the parking lot up Fitzsimmons Creek. Moreover, Mountain Resorts Branch has by way of its All Seasons Resorts policy that Crown land values are managed for the benefit of the public and that the statutory right of way document to be used for Recreation Improvement is the form attached as a schedule to the MDA. Schedule A of the MDA is such a schedule and is unambiguous in this respect. Fitzsimmons Creek road is a public access road and park access right-of-way. The onus is on Whistler Blackcomb to commission the legal survey and Mountain Resorts Branch to ensure it is done.
Despite the substantive and persuasive arguments our organization has brought to his attention, Mr. Lee in his last response to me on February 17th, 2017 under reference no. 227618, completely sidestepped responding to those arguments and asserted without justification that Whistler Blackcomb is in compliance with its MDA obligations.
We are at an impasse. The Crown's first responsibility with Whistler Blackcomb's tenure is to defend the public interest and not the tenure holder's. Clearly, Mr. Lee is failing to follow his own policy guidelines. He takes a beneficent view of Whistler Blackcomb using the Fitzsimmons Creek public access road and right-of-way for amusement park style of activities such as a mountain bike terrain park, all-terrain vehicle riding and Ziptrek cable rides. He is sacrificing public enjoyment of Garibaldi Provincial Park by denying parking adjacent to the park boundary. Children and seniors and all other visitors must transit five kilometers of boring logging road before reaching the park. This means many people who are not extremely fit athletes do not have the opportunity to enjoy Singing Pass in Garibaldi Provincial Park but rather spend the better part of the day walking 10 kilometers of logging road out and back.
Your ministry is not defending the public interest as it is supposed to. In the absence of your further attention to this matter, be advised we will appeal to the office of the Attorney General of British Columbia, the Honourable Suzanne Anton, Q.C. We will request the Attorney General to abate the public nuisance created by Whistler Blackcomb in the matter of public vehicle access up Fitzsimmons Creek road.
cc: The Honourable Mary Polak, Minister of Environment
Mr. George Heyman, Member of Legislative Assembly
Mr. David Brownlie, Chief Operating Officer, Whistler Blackcomb
Mr. Robert Katz, Chairman of the Board and CEO, Vail Resorts Inc.
Response with reference no. 227925 from Ms. Madeline Maley, Acting Assistant Deputy Minister, Integrated Resource Operations Division
March 20, 2017
Dear [name withheld]:
Thank you for your email of March 8, 2017, to Honourable Steve Thomson, Minister of Forests, Lands and Natural Resource Operations, regarding public vehicle access along the existing Singing Pass Trail through Whistler Blackcomb to Garibaldi Park. I have been asked to respond.
As referenced in your correspondence, representatives of the Mountain Resorts Branch have provided several responses to your past inquiries and questions. These include letters, background information, tenure documents, maps, as well as minutes from the Singing Pass Working Group meetings. The province has substantively explained its position and its decision to formally designate the Singing Pass Trail, upgrade the trail to enhance public safety and to improve signage, and monitor the use of the trail for future access considerations.
Thank you for advising that you will be contacting the Honourable Suzanne Anton. I would encourage you to work with the Singing Pass Working Group to find constructive and collaborative opportunities moving forward.
Thank you again for writing.
A/Assistant Deputy Minister
Integrated Resource Operations Division
pc: Honourable Steve Thomson, Minister of Forests, Lands and Natural Resource Operations
Honourable Mary Polak, Minister of Environment
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: 2020 presses minister to make good on Singing Pass parking
Read more about the Singing Pass Trail fiasco here: Singing Pass Trail Fiasco Summary
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: file_59dff589e36a8_ScheduleA-annotated.jpg
Schedule A page 2 is found here: file_59dff58d0bb96_ScheduleA-Page2-annotated.png
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.
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 MFLNRO-Land-Policy-Mountain-Resorts-Branch.pdf). Some relevant policy considerations from the policy document are:
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.
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.
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.
While the common law doctrine of dedication and acceptance is most well known as a means of creating public highways, Canadian courts have also applied it to the creation of other public spaces, including “playgrounds, greenbelts, [and] parks.” This doctrine, which applies equally to private and government actors, has huge implications for understanding both private and public actions in relation to lands used by the public. Under the Doctrine, a private property owner's actions (or in some cases inaction) may result in the creation of legally enforceable public rights of use of lands for recreational or other public purposes. Similarly, the Doctrine provides an important tool in understanding the legal effect of government actions that set aside lands for public purposes--including, but not limited to, designations under parks and other protected spaces legislation.
The cases discussing the public rights created in this way often describe them in terms of a trust owed to the public. A review of the case law suggests that governments hold public spaces subject to a fiduciary obligation to the public, likely arising from the relationship between the creation of such rights and the creation of charitable trusts as well as from the nature of fiduciary duties generally.
The consequences of such public rights depend upon the specific public use for which the land has been dedicated, but generally prevent a property owner from using his or her property in a way that infringes upon the public use (thereby creating a public nuisance). For government the trust-like obligations are still broader, including a positive obligation not to allow others to infringe on the public's right, and possibly an obligation to take positive steps to prevent infringement of the public rights from occurring. While there are barriers for a member of the public seeking standing to bring such a claim, these rights may still be asserted in a number of contexts.
For the full text of the article read here: HighwaysParksAndThePublicTrustDoctrine.pdf