The province has responded to local First Nations’ concerns in B.C. Supreme Court over the recent approval of Whistler’s Official Community Plan (OCP), saying the Squamish and Lil’wat have not provided evidence to support their assertion that the municipal document infringes upon their Aboriginal rights.
First Nations’ officials filed a petition in May following provincial approval of Whistler’s OCP, claiming the bylaw does not allow them to “pursue their preferred form of economic development” on Crown land within municipal boundaries. Of particular issue was the plan’s inclusion of a hard cap on bed units, which is aimed at managing all future development within the resort. The nations, who named the RMOW in their petition, are looking to be exempt from the cap.
“The Petitioners have not identified any specific activities or Aboriginal rights that are affected by the OCP Bylaw,” the province’s response read. “There is no Aboriginal right to economic development or an ‘economic interest’ that is recognized and protected by the (Constitution Act of 1982).”
An Aboriginal right must be an activity that is an element of a practice, custom or tradition integral to the culture of the Aboriginal group claiming the right. The response stated that neither the Squamish nor the Lil’wat provided the province with “any evidence that they traditionally carried out commercial economic activity” on the lands in question and, furthermore, “have not demonstrated how the OCP Bylaw causes an adverse impact on any claimed Aboriginal right,” according to the response.
Like any proponents, First Nations can also be exempt from the bed cap if a potential development demonstrates “extraordinary benefits” to the resort, and the community determines it’s worthwhile following a consultation period.
The report also explained how a 2007 Shared Legacies Agreement signed by Lil’wat and Squamish in 2007 meant the nations were bound to the tenets set out in Whistler’s updated OCP. As part of the land deal, the province granted 300 acres and 452 bed units to local First Nations in exchange for agreeing to allow the RMOW expand its boundaries ahead of the 2010 Winter Games.
According to the provisions of the deal, the nations agreed that any land and improvements held by them within municipal boundaries “would be subject to all valid RMOW bylaws and orders despite any rule of law, court decision or enactment to the contrary that would exempt the Petitioners because of their Aboriginal status.”
It went on to state that the OCP is “a valid RMOW bylaw as contemplated by the Legacy Land Agreement and the Petitioners are therefore contractually bound” by the terms of the deal and “estopped from demanding that the OCP Bylaw be quashed or set aside as the foundation of their complaint is grounded in the very terms they agreed to in the Legacy Land Agreement.”
In their petition, First Nations also raised issue with the timing of the OCP’s approval by B.C.’s Ministry of Community, Sport and Cultural Development, which came the day before the provincial election campaign began and the writ was dropped. Both the Squamish and Lil’wat were vocal about what they felt was a lack of extensive consultation with their respective communities ahead of the plan’s adoption.
“The Minister did not artificially and unilaterally terminate the consultation process due to electoral or political reasons,” the provincial response read. “At the termination of the consultation process the Crown had fulfilled its duty of consultation and provided reasonable accommodation for the concerns of the Petitioners and had satisfied the obligations of the Honour of the Crown.”
The province assessed the extent of its obligation to consult with the nations based on the potential adverse impacts the OCP may have had on their Aboriginal title and rights, and stated that “neither the Squamish or Lil’wat provided any evidence either prior to or during the consultation process, of specific intensive use of the lands at issue or of specific Aboriginal rights that might be adversely affected by the OCP Bylaw.
“Insofar as the Crown addressed the potential adverse impacts of the OCP Bylaw, the scope and extent of the duty to consult on these facts is at the low end of the scale, and the consultation which occurred, as demonstrated by the full record, was more than adequate to discharge the duty.”
The province, who reviewd the municipality’s record of consultation with the nations, also said in the response that the RMOW’s efforts to engage with the petitioners were “extensive and reasonable.”
The RMOW has no plans in place yet to file a response in B.C.’s Supreme Court to the petition, confirmed municipal communications manager Michele Comeau.