Neskonlith legal challenge set for March

Action to proceed against SmartCentres and the city.

A hearing date has been set in the court challenge launched by the Neskonlith Indian Band versus the City of Salmon Arm and Salmon Arm Shopping Centres Inc.

Nicole Schabas, co-counsel for the Neskonlith, reports that a hearing has been scheduled for the week of March 19 in B.C. Supreme Court in Vancouver.

The band is challenging the Hazardous Areas Development Permit for the SmartCentres development because of concerns about flooding, as well as citing lack of consultation by the city. It is not seeking monetary reward or compensation of legal fees.

While SmartCentres has filed a response to the action, the city, the main defendant, hasn’t yet. Schabas said the city should have filed within 21 days of the July 28 petition, but must do so at the latest by mid-January.

Carl Bannister, the city’s chief administrative officer, said it will be done in January.

In October, he told the Observer that he believes there have been several reasons for the delays, one of which could have been SmartCentres’ new development permit, as well as the province’s involvement in the court action because of aboriginal title issues.

The province, which was a third party to the action, has now withdrawn.

Schabas said there is a “strong prima facie case (sufficient evidence to support a proposition) to aboriginal title and rights in the area. That is indisputable.”

She explained that the Attorney General always has to be notified when filing a judicial review. She said the AG’s department becomes involved “if they feel provincial interests are touched on. The issue here is the obligation to deal with the flood issues delegated to the city from the province… We’re saying there’s duty to consult.”


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