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
Victoria, BC
V8V 1X4

Dear Minister,

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.

Sincerely,

[name withheld]

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.

Sincerely,

Madeline Maley
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

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