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Province trumps B.C. Supreme Court over Nita Lake development

Keith Lambert calls the government’s interference a ‘sinister’ move

For more than two years the Nita Lake Lodge development has been in limbo.

This week relieved developers are counting down the days until they can start construction once again and finally complete their controversial project on the south shore of Nita Lake.

On the other side of the world, Australian Keith Lambert is disappointed and somewhat bewildered that the province stepped in to approve the resort development in Whistler, despite a B.C. Supreme Court ruling which declared the municipality’s development bylaw illegal.

"We think it’s highly irregular ... for any western government to overturn its own Supreme Court," he said, speaking from his Melbourne home Tuesday.

Lambert, who owns a second home in the resort, successfully challenged the municipality of Whistler in the B.C. Supreme Court this year over the development bylaw for the hotel and train station project on Nita Lake.

The crux of his argument was that the municipality approved the development based on the extensive amenities package offered by the developer, including the protection of a large tract of sensitive wetlands and employee housing for local residents.

The judge agreed that the development bylaw, as written, was illegal, and stopped construction of the project.

But the court victory turned hollow last week after the province announced it was validating the development bylaw in the legislature.

"We always knew there was a risk we could win the battle and lose the war and that’s essentially what happened," said Lambert.

But he said his challenge was not in vain.

"I think we pointed out that there was a problem. I think the courts have vindicated us and said, ‘yes there was a problem’ and I think it’s been dealt with in a very sinister way by the municipality and indeed by the government."

The province moved ahead with the Municipalities Enabling and Validating Act legislation this week allowing the 80-room hotel and train station development to move ahead. As of press time on Wednesday, the Act was at the Committee stage and was expected to be passed by Thursday, just before the session of the legislature ends for the summer.

Whistler’s Acting Mayor Caroline Lamont explained that the municipality asked the province to intervene on their behalf to allow the development to go ahead.

"Council believes this project and the associated community benefits are important to the future of Whistler," said Lamont.

"We also believe that the project offers substantial benefits to the province. That is why we requested support from the provincial government for enabling and validating legislature."

Murray Coell, Minister of Community, Aboriginal and Women’s Service said the province reviewed the case with Whistler staff over the past month and determined two key points that were critical to moving forward with the

Act.

First they determined the Whistler government was acting in good faith when they passed the development bylaw.

"I think that it’s obvious from the review of the process and the meeting that they believed they were (functioning within their legal boundaries)," said Coell.

Secondly, he said the province also believed it was in their own best interests for the development to go forward.

"We want to see expanded railway service throughout the province and this is very much a key part of Whistler’s ability to attract and maintain the tourism through rail," said Coell.

Lambert however said it is a stretch for the government to claim the development is of provincial importance.

"To say that this is something important for the Olympics is just an outrage because it isn’t," he said.

"The rail franchise (for passenger trains) hasn’t even been granted yet."

Furthermore, said Lambert, this latest move still leaves a fundamental question unanswered: can a municipality change land use in exchange for amenities?

He said Madam Justice Humphries clarified this question in her March ruling.

In a letter addressed to Premier Gordon Campbell, Lambert wrote:

"We respectfully submit that the legislation as it exists is specifically needed to prevent the discretion of municipal councils being fettered by developer paid amenities bestowed on the community. That is because land use is too valuable to be bargained for or sold by a municipality."

The province will reexamine the section in the Local Government Act that came under scrutiny in this case.

"Because this has been brought forward, staff will review all the bylaws and if they see a need for change, would bring them forward," said Coell.

"As a course of doing business when a MEVA is requested they’ll go back and look at all of the bylaws again."

Retired local lawyer Garry Watson, who has been following the case closely, said hopefully the province will fix up the "grey" section in the Act that has been the source of this debate.

"The root of the problem is in the provincial legislation in the Local Government Act," he said.

"(The province) could have amended that section, I thought, to go back in greater particular (to) define what amenities mean. That’s not even in the Act.

"...For now (though), they had to cure the damage and avoid any further damage and I think that’s a significant thing, is avoiding further damage, the delays, cost, unnecessary legal fees, court time, all of that."

After Lambert’s win in the Supreme Court, the municipality and the developers launched an appeal on the decision. This could have been both a lengthy and expensive process.

Lambert’s lawyer George Macintosh said they were looking forward to that appeal hearing and were disappointed by the intervention of the province.

Macintosh said they don’t believe they have any way to challenge this latest move.

"There’s nothing we believe we can do," he said.

Watson said using the Act was always a possibility in this case because it has been used before in dealing with the question of municipal bylaws.

"It was the way to go," he said.

"The authority of the municipalities is the provincial legislature. They are the ultimate authority and it was their legislation (i.e. the Local Government Act) that was inadequate and they’re just saying now ‘we’re going to fix it.’ It’s not abusing the authority or the jurisdiction of the court whatsoever. I don’t think so."

Lambert, who won’t get any compensation for his court costs even though he won, disagreed.

He said people may not agree with his actions – taking the municipality to court – but he does not see how anyone could be content with the outcome of the Nita Lake Lodge development project.

"No citizen can admire the way that this was finally resolved," he said.

"Because basically it’s saying that the law isn’t the law and the whole infrastructure that characterizes western world democracy has been thrown out the window over a hotel development and that’s a scary situation."