Neskonlith court appeal decision could take months

The band appealed the court’s decision to uphold the hazardous areas development permit for the proposed SmartCentres shopping centre.

Three judges of the BC Court of Appeal heard an appeal from the Neskonlith Indian Band Aug. 14 and 15, but it will likely be several months before a decision is reached.

The band appealed the court’s March decision to uphold the City of Salmon Arm’s  hazardous areas development permit for the proposed SmartCentres shopping centre.

In April, BC Supreme Court Justic 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 development permit. He concluded that the duty to consult, when decisions may affect aboriginal rights or title, rests with the province.

A three-judge panel, senior judge Justice Mary Newbury, Justice Daphne Smith and Justice John Hall heard the appeal in Vancouver.

Lawyer Mark Underhill, representing the Neskonlith band, said the average time for an appeal decision to be made tends to be about four months.

“It varies tremendously… It’s virtually impossible to predict.”

Along with the City of Salmon Arm and Salmon Arm Shopping Centres, the Union of BC Municipalities is participating in the case because the decision could have implications for other municipalities and First Nations.

Underhill said he wouldn’t be surprised if the case goes to yet a higher court.

“It’s an issue that is ripe to go to the Supreme Court of Canada.”

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