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Neskonlith launch appeal of judicial review decision

Neskonlith Indian Band has launched an appeal after its application for a judicial review of a development permit was dismissed.

It’s not over.

The Neskonlith Indian Band has launched an appeal after its application for a judicial review of a development permit for the SmartCentres shopping centre was dismissed by the BC Supreme Court in Vancouver on April 4.

Notice was filed in court on April 23 of the appeal in the case between the Neskonlith Indian Band and the City of Salmon Arm and Salmon Arm Shopping Centres Inc. No dates have yet been set regarding the appeal.

Asked if there will be an injunction sought regarding work on the site until after the appeal is concluded, Mark Underhill, co-counsel for the Neskonlith, said that hasn’t been determined.

The hearing for the band’s judicial review application, which cited lack of consultation regarding the hazardous areas development permit allowing the SmartCentres development to proceed in the Salmon River delta and floodplain, took place from March 19 to 21.

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 development permit. He 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 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.



Martha Wickett

About the Author: Martha Wickett

came to Salmon Arm in May of 2004 to work at the Observer. I was looking for a change from the hustle and bustle of the Lower Mainland, where I had spent more than a decade working in community newspapers.
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