Neskonlith consider appeal, Cooper vows to improve communication

A decision on the judicial review application launched by the Neskonlith Indian Band has prompted a commitment to better communication and the pondering of a possible appeal.

On Wednesday, April 4 in BC Supreme Court in Vancouver, Justice Peter Leask dismissed the band’s claim that the City of Salmon Arm had a legal or constitutional obligation to consult with the band before issuing the environmentally hazardous areas development permit for the SmartCentres site. The site is adjacent to the Salmon River, which borders Neskonlith land to the west.

Leask concluded that the duty to consult, when decisions may affect aboriginal rights or title, rests with the province.

The band had argued that because the province had delegated some land-use decisions to municipalities with no oversight from the province, then the duty to consult also transfers to municipalities. Its argument included the concern that the property will flood, requiring flood control measures. Those flood-control measures would then do damage to the environment and the interests of the band.

The city’s argument, and that of Salmon Arm Shopping Centres Ltd., was that the city has no constitutional duty to consult according to existing case law. With regard to law governing development permits, the city argued that once an applicant has complied with the guidelines under an official community plan, a municipal council has no discretion to withhold the development permit.

Following the decision, Mayor Nancy Cooper responded in an email to the Observer, noting that the development process and the start of the judicial review happened before she was elected. She said her reading of the decision shows that the city followed all required procedure according to the Local Government Act. Then she made a commitment.

“I will personally be contacting Chief Judy Wilson of the Neskonlith Band as soon as possible to ask if she would be willing to sit down and talk about a better way to communicate and work together.

“In the interest of being a good neighbour, my ultimate goal is to work towards signed protocol agreements with both the Neskonlith and Adams Lake bands.”

Chief Wilson told the Observer that “Justice Leask’s decision failed to recognize the practical reality that the land-use decisions by the city can negatively impact aboriginal title and rights and that therefore aboriginal title and rights have to be considered during the decision-making process. That’s what he failed to recognize.”

She said the band is considering whether it will ask the appeals court for a ruling.

She said the decision implies a duty to consult from the province, but “as a practical matter the Neskonlith is left without a remedy. The province hasn’t consulted the Neskonlith about the issue of the development permit.”

“Not only were we overlooked in consultation by the city, developer and province, now it’s the courts.”

Sandra Kaiser, vice-president of corporate affairs for SmartCentres, responded to the decision by stating: “We are pleased with the outcome of the judicial review and are continuing to work with staff to meet the conditions of the development permit.”

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