RMOW to revert back to earlier OCP after Supreme Court ruling 

No word yet on whether the municipality or province will appeal the decision

click to enlarge PHOTO BY SHUTTERSTOCK - Official Community plan The Resort Municipality of Whistler has resorted to using the 1993 OCP after the Supreme Court ruled against the 2013 plan
  • Photo BY Shutterstock
  • Official Community plan The Resort Municipality of Whistler has resorted to using the 1993 OCP after the Supreme Court ruled against the 2013 plan

Following the B.C. Supreme Court ruling that quashed provincial adoption of Whistler's Official Community Plan (OCP), the resort's mayor said the municipality would be turning to an earlier version of the planning document.

"We no longer have the OCP that (council) passed in May of 2013, and we will be reverting back, at least for the short term, to our 1993 OCP as amended," said Nancy Wilhelm-Morden, who was unsure what the move would mean.

"We don't know (what impact it will have)," she said. "We've got to get some legal advice."

Both the RMOW and the province have 30 days to appeal the court's decision. Wilhelm-Morden would not say if the municipality would appeal. The province declined to comment in detail until officials take time to review the ruling.

On June 4, Justice Bruce Greyell ruled in favour of an earlier petition by Lil'wat and Squamish First Nations, who opposed the Ministry of Community, Sport and Cultural Development's approval of the OCP on the grounds that it infringed upon their aboriginal land rights, and was passed without adequate consultation.

"The position of the Province, from beginning to the end of the short consultation period remained intransigent," Greyell wrote. "While appearing to listen, the Crown was, in my view, in fact locked into its position from the beginning and ultimately closed the door to further discussions."

It was an unwillingness to engage in "meaningful consultation" that Lil'wat officials said the RMOW shared.

"It's one thing to attend a meeting and have those discussions about our interests and concerns, but another to leave a meeting and not feel that any of it was heard," said Lil'wat Chief Lucinda Phillips.

In response, Wilhelm-Morden said the level of consultation was extensive, with over 2,500 hours of citizen and stakeholder input, and called the characterization that negotiations weren't meaningful unfair.

"If we didn't do what (the Nations) wanted us to do, does that mean the consultation wasn't meaningful?" Wilhelm-Morden asked.

The judge also felt the timing of provincial elections played a role in the OCP's approval last April, saying, "the Province's agenda was solely focused on approval of the OCP before the dropping of the election writ."

According to the judgment, the Nations felt the duty to consult "fell between the cracks" of local and senior levels of government. The province has the authority to delegate consultation duties to local government, although, according to Lil'wat director of lands and resources David Dorrans, the RMOW continually cited a 2012 B.C. Court of Appeal decision throughout negotiations, which concluded that municipalities do not have an independent duty to consult on aboriginal land right issues as they lack the practical resources available to do so, putting the responsibility on the Crown's shoulders.

"The RMOW specifically said that they can't deal with these matters being brought to us, especially economic matters," Dorrans said. "So you had one party saying, 'We can't deal with any of your concerns,' and then (the province) saying, 'Well they've already been dealt with by a prior party.'"

The biggest hurdle since discussions on Whistler's OCP began in 2010 has been the document's inclusion of a "hard cap" on future development in the resort, with the Nations claiming the bylaw prevents them from pursuing economic opportunities on Crown land within municipal boundaries, which the Nations claim falls within their traditional territory.

"We just wanted our economic interests to be recognized as legitimate," said Squamish Nation Chief Ian Campbell, in a release. "Whistler has extensively developed within our aboriginal title lands over the past 40 years, and it would be completely unfair if they could now completely shut the Nations out from any future opportunities."

In his ruling, Greyell found that the Lil'wat and Squamish Nations' land claim within Whistler "appears to be strong."

The resort's latest OCP confirms a development cap of 61,750 bed units, preventing any future development unless it demonstrates "extraordinary benefit" to the community.

While the Nations have the same opportunity to meet the bed unit exemption as anyone else, comparing the Lil'wat to the average real estate developer would not be "an effective comparison," according to Dorrans.

"The Nations aren't some other stakeholder or developer, they are the original owners of all of this land," he said. "Essentially, people treat it as though this land was all acquired free and clear. Lil'wat does not have a treaty, neither does Squamish — the land is unceded territory, so there are constitutionally protected duties to consult and accommodate the Nations in this area that your average developer or other stakeholder does not have."

Lil'wat officials could not specify exactly which economic development opportunities they wished to pursue within Whistler, saying only that they could take the form of additional bed units, land zoning or development rights.

Also at issue is a 2007 Legacy Lands agreement, signed by the Squamish and Lil'wat, which granted the Nations 300 acres of Crown land and 452 bed units in exchange for agreeing to allow the RMOW to expand its boundaries ahead of the 2010 Olympics.

Based on the provisions of the deal, according to claims by both local and senior government officials, the Nations agreed that any land and improvements held by them within municipal boundaries "would be subject to all valid RMOW bylaws and orders despite any rule of law, court decision or enactment to the contrary that would exempt the Petitioners because of their Aboriginal status," including Whistler's OCP.

According to Victoria's response to the Nations' petition, this means the Squamish and Lil'wat are bound by the terms of the deal, and "estopped from demanding that the OCP Bylaw be quashed or set aside as the foundation of their complaint is grounded in the very terms they agreed to in the Legacy Land Agreement."

Dorrans, however, said the terms of the agreement are not that cut and dry.

"We've interpreted that (agreement), and I think it's not that clear. Our view is that when lands were used in that agreement, it referred only to the 300 acres that were acquired," he said. "We couldn't challenge the OCP's application to that specific 300 acres, but (we believe) that it does not bind the Nations for all land for all times, because that's too broad an interpretation."

On the contrary, Wilhelm-Morden said the language of the 2007 deal states quite plainly that the Nations' are bound by the tenets of the agreement.

"The Legacy Lands agreement says that explicitly... and it's pretty darn clear," she said. "They were represented by lawyers at the time, who presumably explained (the agreement) in very clear language to them."

No matter the outcome, both parties agree that there's room for improving the relationship between the RMOW and the Sea to Sky's First Nations.

"I'd like to stress that the relationship with the First Nations is important and we'll just have to see how it works out," Wilhelm-Morden said.

Senior Lil'wat administrator Curt Walker, meanwhile, said he's seen the relationship with Whistler's current administration become strained compared to the last mayor and council, but views last week's court decision "as an opportunity to grow and build that relationship in a forward direction."

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