Local First Nations say they may be forced to block provincial approval of Whistler's most critical land use plan in court if there is no resolution to their concerns.
That's the message from lawyer Greg McDade of Ratcliff & Co, who represents the Squamish and Lil'wat Nations.
"The Nations were willing to work with RMOW to find a way to solve this, but now may be forced to block the OCP approval from the province until there is a resolution," said McDade, in an email to
Pique this week.
The threat to hold up the Official Community Plan (OCP), which requires provincial approval because Whistler is a resort municipality, comes on the heels of a council decision last week.
At the Oct. 16 meeting, council unanimously approved first and second readings of the draft OCP bylaws, effectively ending further dialogue with its neighbouring First Nations who have serious concerns with a land use plan that holds the line on future growth.
In fact, the draft OCP sets a "hard cap" on bed units — Whistler's unique measurement tool for controlling development.
Though they take issue with the process of engagement, at the heart of the matter the Squamish and Lil'wat Nations see the draft OCP as having an "unfair impact," particularly as it relates to economic opportunities around undeveloped Crown land — or land held by the province — within the municipal boundaries. That's land "upon which there is unresolved aboriginal rights and title," according to McDade.
A senior ministry official with the Ministry of Community, Sport and Cultural Development, explained that Whistler was encouraged to "engage" with First Nations as well as other key stakeholders as it worked through its draft OCP, a process that began under the previous council.
Now at an impasse, the official explained that Whistler must first hold a public hearing on the draft bylaws before sending the plan to the province for approval.
At that point the province will begin its constitutional duty to consult with First Nations on their claimed aboriginal rights.
The spokesperson said that to the ministry's knowledge they never advised Whistler or First Nations that they were "delegating consultation obligations." That obligation, he explained, rests legally with the province, and it wouldn't be proper to download that responsibility to the local government.
If the province and the nations can't reach an agreement, the minister could call for more consultation. Or the minister could make a decision, which would become legally binding on all parties and First Nations would have recourse to the courts to challenge that decision.
Mayor Nancy Wilhelm-Morden reiterated again this week that Whistler's hands were tied.
Neither nation is in active treaty negotiations with other levels of government, but Whistler is standing firm in its insistence that the OCP is not the place to negotiate Crown land claims.
"Because what First Nations are asking us to do is something we do not have the jurisdiction to do," explained Wilhelm-Morden this week. "And that is to suspend any land regulations on Crown land."
When the ministry's spokesperson was asked if this is true, if what First Nations was asking for was outside Whistler's jurisdiction, he said it would depend on what First Nations are asking for.
For example, if their core concern is the bed cap then that would be in Whistler's jurisdiction, but if it's for something bigger like aboriginal title and failing to resolve it — and what that means for their broad economic interests on Crown land — then that would fall outside of Whistler's jurisdiction.
Though the OCP specifically limits growth with the bed cap, it also allows for new opportunities or exceptions to the rule if "it is a strategic opportunity that demonstrates extraordinary benefits to the resort community."
Squamish and Lil'wat Nations were given 300 acres of Crown land in the lead up to the 2010 Olympic Games, choice parcels picked within Whistler's boundaries.
In June council rebuffed a rezoning application from Lil'wat Nation to rezone its small Function Junction legacy lands. Lil'wat was looking to develop the land to include five buildings, a gas station and a fast-food drive-through. The application was stopped in its tracks and sent back to staff.
