Neskonlith discontinue appeal

SmartCentres issue: City of Salmon Arm now attempting to recover court costs.

Site prep: Drainage work has begun on the site of the planned SmartCentres shopping development at the west end of the city. It is expected the work will move forward in earnest now that the neighbouring Neskonlith Indian Band has decided not to pursue further legal appeals regarding consultation by the City of Salmon Arm.

The Neskonlith Indian Band won’t be taking its appeal to the Supreme Court of Canada, but that doesn’t mean the issue prompting legal action has been resolved.

The appeal stems from an environmentally hazardous areas development permit that the City of Salmon Arm issued in October 2011 for the SmartCentres site.

Neskonlith Chief Judy Wilson told the Observer the band will not be going to Canada’s highest court.

“We are not pursuing the… appeal to the Supreme Court of Canada but we are looking at all other legal options in light of the Court of Appeals decision that leaves Neskonlith and other First Nations affected by municipal land-use decisions without a remedy,” Wilson said.

Asked about other options, she said there are several similar cases in Canada, so the Neskonlith will work with other bands.

“It’s not just Neskonlith affected, but other First Nations…

“We continue to have serious concerns about flooding with regard to this development; we don’t intend to leave them unaddressed. Any future developer or investor needs to be aware of those risks and potential liabilities.”

In April, Justice Peter Leask in BC Supreme Court dismissed the Neskonlith’s request for a judicial review. The band had argued that the city had a legal or constitutional obligation to consult with the band before issuing the development permit. 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.

In September, an appeal of Leask’s decision launched by the Neskonlith was dismissed by the BC Court of Appeal.

Lawyer Mark Underhill, who represented the Neskonlith, said the Court of Appeal’s decision leads to the proposition that sections of the Local Government Act are unconstitutional because they allow the province to ‘delegate away’ the constitutional obligation to consult with First Nations.

“Accordingly, one might reasonably observe that the Court of Appeal’s decision has in fact created more, rather than less, uncertainty going forward for municipal decision-makers, First Nations and the development community.”

The Union of BC Municipalities joined the case at the appeal stage and provided the city with $10,000 towards legal fees.

UBCM president Heath Slee told the Observer in July that “everyone benefits by having this issue clarified, being that we’re a member-based organization and some members are First Nations… I think our track record in building relationships with members and First Nations is solid.”

The city is now pursuing its court costs in the two cases.

“This represents a relatively small amount of the total legal costs that the city incurred,” stated Carl Bannister, the city’s chief administrative officer, in an email to the Observer.

Mayor Nancy Cooper said council is acting “because we felt it was our fiduciary responsibility to recoup whatever costs we could as paid for by taxpayers’ money.”

Wilson reported that the band’s lawyers spoke to the city about costs and the Neskonlith giving up their right to appeal. She said the band’s proposal included a new relationship for the city and band involving how the city makes land-use decisions, but it was voted down by the city’s mayor and council. Wilson did not provide details.

“We were looking at a reconciliatory approach and that’s what they voted against…” she said. “It was quite an approach we were proposing, I think it was long overdue. We’re left with no consultation from the city, the developer and the province.”

Neither Cooper nor Bannister would comment on the proposal.

Bannister wrote: “I am not at liberty to comment on any related proposal(s) which may have been made by the NIB (Neskonlith Indian Band) and I have not been formally advised what their plans may be going forward (although I do believe that the timeframe to seek an appeal to the Supreme Court of Canada has now expired).”

Cooper reiterated: “There may still be legal implications so we’re waiting to find that out before we can comment on anything.”

Regarding her election promise to work towards a new relationship with the city’s First Nations neighbours, Cooper noted: “I did meet with Chief Wilson and we did talk about working on a protocol agreement. We both realized it’s going to take a while, it’s not going to be an easy process. We both feel very strongly about that. We’ll still be working towards that.”


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