Whistler alone in legal appeal against First Nations 

Province does not file appeal by deadline in light of landmark case

click to enlarge appeal filed The Resort Municipality of Whistler is appealing the court decision that struck down its Official Community Plan, but the province is not.
  • appeal filed The Resort Municipality of Whistler is appealing the court decision that struck down its Official Community Plan, but the province is not.

Whistler will be fighting local First Nations in court without the weight of the B.C. Government to back its claims as a fellow defendant.

Unlike Whistler, the provincial government has decided not to appeal a BC Supreme Court decision that ruled in favour of the Lil'wat and Squamish First Nations, which challenged the province's approval of Whistler's Official Community Plan (OCP), saying the B.C. Government did not fulfill its consultation duty.

The government's decision comes in the wake of the recent ruling from Canada's highest court, a game-changing ruling that recognizes in no uncertain terms First Nations' ownership on their ancestral lands and the right to use those lands for modern economic purposes.

That ruling puts all First Nations claims under the microscope, including the OCP decision involving the Squamish and Lil'wat Nations, and could have massive implications in the resort municipality.

"The Province is assessing any litigation decisions in light of the recent guidance provided by the William case rendered by the Supreme Court of Canada (June 26)," Robin Platts, a spokesperson with the Ministry of Aboriginal Relations and Reconciliation wrote in an email this week when asked if the province would be appealing the Whistler case.

Whistler's Mayor Nancy Wilhelm-Morden admitted she was surprised the province decided not to appeal the June 4 B.C. Supreme Court decision, which quashed last year's provincial approval of Whistler's Official Community Plan (OCP).

She said, however, that the recent Supreme Court of Canada landmark decision in favour of the Tsilhquot'in Nation, which sought a declaration of aboriginal title on lands in their traditional territories located in B.C.'s central Interior, is a "massive sea change."

What that unanimous ruling means is that First Nations still own their ancestral lands, unless they signed away their ownership in treaties with government.

Neither Squamish nor Lil'wat have treaties with the government.

Wilhelm-Morden said council made its decision to appeal before the June 26 Supreme Court of Canada unanimous ruling.

Though the province, which was named as a co-defendant in the case after approving Whistler's OCP, is not appealing, the mayor said it would appear in Whistler's appeal.

"What that means from a technical perspective is they won't be filing their own factum, they won't be responding in any kind of written way to the substantive appeal," said Wilhelm-Morden. "They will have the right to show up at the hearing of the appeal and stand up and say, 'We agree with Whistler.' But that's about the extent of it."

When asked what the Tsilhquot'in Nation ruling means, the mayor said: "I don't think anybody really knows."

Whistler's decision to appeal will be revisited at an in-camera meeting July 15 now that the province's position on the decision is known, said Wilhelm-Morden.

The Supreme Court Of Canada was clear, however, in its ruling — aboriginal title means control of ancestral lands and the right to use them for modern economic purposes, without destroying those lands for future generations.

The mayor declined to comment in detail on the appeal, as it remains before the courts. The document will likely be made public in the coming days.

Last month, Justice Bruce Greyell ruled in favour of an earlier petition by the Lil'wat and Squamish First Nations opposing approval of Whistler's OCP by the Ministry of Community, Sport and Cultural Development.

The RMOW was forced to revert back to the 1993 version of the planning document as a result of the ruling.

Greyell noted in his decision that the province did not meet its duty to consult with the Nations, saying the Crown was "locked into its position from the beginning and ultimately closed the door to further discussions."

The major issue the Nations have with the OCP is its inclusion of a hard cap on future development, which aboriginal officials feel will freeze them out of future development opportunities in Whistler.

"We just wanted our economic interests to be recognized as legitimate," wrote Squamish Nation Chief Ian Campbell in a statement following the decision. "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."

Officials from both senior and local levels of government have argued that a 2007 Legacy Lands agreement signed by the Nations binds them to the tenets of the latest OCP. As part of the deal, the Nations were granted 300 acres of Crown land and 452 bed units in exchange for agreeing to allow the RMOW to expand its municipal boundaries.

Both sides have debated a specific point in the agreement that states the Nations would be subject to all future RMOW bylaws, like the OCP, "despite any rule of law, court decision or enactment to the contrary that would exempt the (Nations) because of their Aboriginal status."

Victoria and Whistler have argued this prevents aboriginal officials from demanding the OCP be quashed, while the Nations feel that is "too broad an interpretation," claiming the agreement is overly restrictive and should not bind the Squamish and Lil'wat "for all land for all times."

As a result of the Supreme Court's decision, council gave third reading on July 2 to a proposal that would streamline the development permit approval process and delegate its authority to issue certain permits to an RMOW official.

The bylaw amendment would exempt proponents from requiring a development permit for detached dwellings, or duplexes in any development permit area designated in the 1993 OCP if applicable guidelines are met.

The bylaw would also delegate council's authority to hand out certain development permits and covenant modifications or discharges restricting gross floor area to the RMOW's general manager of resort experience.

After reviewing the legal implications of the Supreme Court decision, municipal legal counsel felt it would be necessary to add the bylaw amendments in order for staff to process development permit applications "in a timely manner," according to an administrative report. It's also aimed at reducing uncertainty for permit applicants, and minimizing potential disruption to the RMOW staff's work program.

"There's been some kinks to work through, and there have been some internal staff meetings to clarify procedures and communications with the building and development sector, but things are moving along fairly well," Wilhelm-Morden said of the development and builder permit application process since the court's ruling.

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