A pivotal decision on the future of the proposed Garibaldi at Squamish ski resort outside Squamish is expected on Sept. 27.
B.C. Supreme court Justice Madam Marvyn Koenigsberg will rule on whether Land and Water B.C., and therefore the resort proponents, Luigi Aquilini and Bob Gaglardi, need to consult further with the Squamish Nation in relation to their ski resort development proposal.
The judge is also expected to detail how Land and Water B.C. and the proponents are to engage in consultation with First Nations.
This judgement is a step in a long process but its significant because it will affect how quickly Land and Water B.C. and the proponents are able to process the projects environmental assessment application. The new deadline for this application is Dec. 31.
Both sides appear to be anticipating a ruling that will require further consultation. Perhaps more importantly, Justice Koenigsbergs ruling may instruct Land and Water B.C. on how to consult with the Squamish Nation.
Vice President of Land and Water B.C., Jim Yardley, said the government agency was in court with this proposal, instead of the proponents, because it is the responsibility of Land and Water B.C. and the Environmental Assessment Office (EAO), to decide weather the project proceeds.
"So the proponents are very interested parties in this litigation but really what the Squamish (Nation) are trying to do is restrain LWBC and the EAO from approving the project at this point in time," said Yardley.
"And its hard to know where this is heading.
"Mr Aquilina and Mr. Gaglardi are still the proponents for the project but the issue that were facing is how to deal with First Nations interests in the area and weve had extensive discussions with the Squamish First Nations about the project.
"Weve been involved in a court case with them about the project but were not sure how it will resolve itself."
Lawyer for the Squamish Nation, Greg McDade, was adamant that his clients have spiritual ties to the land in question, at Brohm Ridge, north of Squamish.
"I think what we can say is the question is not whether this can proceed without the Squamish Nation being accommodated, because thats the very issue thats in court," said McDade.
"Were in the middle of the regulatory process and the next step is the environmental assessment.
"But the bigger question is should it even be in this process at all?
"The Squamish Nation should have been consulted and accommodated in 2002 when this thing re-started. If were successful in our claim it should force the government to start over."
The original Garibaldi at Squamish ski resort proposal was put forward in the 1990s by Wolfgang Richter. Richter ran out of money and was granted time to talk to new investors. But through a series of moves Aquilini and Gaglardi eventually took control two years ago and revamped the resort proposal. However, despite the changes to the resort proposal, which included additional golf facilities, the original evaluation process continued.
Meanwhile, Richter has continued a court battle over ownership of the proposed resort for the past few years. At the same time, there has been another group of court cases about the merits of the resort.
And the Supreme Court of Canada has ruled that aboriginal title does exist and therefore First Nations must be consulted in a meaningful way about development on their traditional lands.
"Theres been a whole series of court cases, which have said when youre dealing with aboriginal title, its up to both sides to find an acceptable solution through a process of reconciliation," said McDade.
"And reconciliation means that the Squamish Nation needs to be respected to the same degree as Crown title.
"A happy outcome is still possible, but the process has to begin again."
From the provinces perspective, Yardley said he wasnt sure if the project plans as they are now would be the ones that are eventually considered by the EAO or if the project would go ahead at all.
"The scaled down version of the project is at the cusp of going into the environmental assessment process.
"But we dont know if thats the project that will ultimately get reviewed or whether a different project will get reviewed, it will largely depend on the outcome of discussions with Squamish First Nations," he said.
"This is a very dynamic, fluid situation, I dont know if well be able to reach an agreement with Squamish on this, but I hope so."
Al Raines proposed Cayoosh Resort, north-east of Whistler, received an environmental assessment certificate from the EAO four years ago , but largely because no agreement has been reached with First Nations in that area development of the project has never started.
"The (Garibaldi at Squamish) project, at the end of the day, requires the approval of the EAO thats the first thing because it (this project) is of the scale that triggers a review under the environmental assessment act," said Yardley.
"So the project wont go ahead unless an environmental assessment certificate is approved and issued by the relevant ministers.
"But to try and get to that stage, one of the key impediments is to try and resolve First Nations interests in the area.
"But this is proving to be a pretty tricky thing to do.
"Theyre (the Squamish Nation) making assertions about aboriginal rights and title to the area that would adversely impact us if the project were to proceed.
"Thats not an unusual situation with major projects but its our job to work with First Nations to see if we can accommodate their interests."
McDade said the decision on Sept. 27 could be the kind of decision that proved to be a win and a loss for both parties.
"These things normally go on until the parties reach a deal," he said.
Yardley said if the result of this court case is good for the proponent then there is a possibility the project would break ground in about a year.
"If they (the proponents) get something, theyll get an environmental assessment certificate out of the EAO and then theyll deal with LWBC in negotiating something called a master development agreement for the project.
"But this is a dynamic situation which is very hard to put some time lines around."