After the province found last month that Whistler’s recently-approved Official Community Plan (OCP) did not infringe upon local First Nations’ Aboriginal rights and title, the Squamish and Lil’wat held firm in their opposition to the municipal planning document ahead of several court hearings set for November.
The nations petitioned against April’s provincial approval of Whistler’s community plan in B.C. Supreme Court, saying an included cap on bed units aimed at managing future resort development prevents the Squamish and Lil’wat from pursuing economic opportunities on Crown land within RMOW boundaries. The nations have asked to be exempted from the development cap.
“We don’t have any specific views on (what economic activity we will pursue) right now, but if the opportunity goes away, then it’s gone,” said Squamish Nation Chief Gibby Jacob on Wednesday (Sept. 11). “In the Delgamuuk’w court case (against the province from 1997), there was a specific mention that First Nations’ right and title comes with an economic opportunity, so some of what they’re saying is contrary to court case law.”
In a response to the petition filed late last month, the province stated the First Nations “have not demonstrated how the OCP Bylaw causes an adverse impact on any claimed Aboriginal right,” and that the Squamish and Lil’wat have yet to provide “any evidence that they traditionally carried out commercial economic activity” on the lands in question. As per Canadian law, an Aboriginal right must be an activity that is an element of a practice, custom or tradition integral to the culture of the group claiming the right.
“I guess that’s their position,” said Jacob. “I can’t speak for the government but they are in opposition to First Nations’ rights and title. I look at the history of non-Native people, the Queen and King; did they have a use for every piece of earth that they had to control? They didn’t, and now they’re saying the opposite exists for our people, and we only have interests in certain specific areas, which is contrary to what their governments have done throughout their history.”
According to the OCP, any potential developer, including the First Nations, can be exempt from the bed cap if a proposed project demonstrates “extraordinary benefits” to the resort.
The province’s response also detailed a Shared Legacies Agreement signed by the nations in 2007 that bound them to Whistler’s updated OCP. Under the agreement, the province granted 300 acres and 452 bed units to the Squamish and Lil’wat for agreeing to allow the RMOW to expand its boundaries. The provisions of the deal also meant that any land held by the nations 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.” As the OCP was deemed a valid bylaw, the province determined that the nations were “contractually bound” to the 2007 deal.
Jacob declined to comment on the provisions of the Shared Legacies Agreement, saying “that will come up in the court activity.”
Lil’wat senior administrator Curt Walker said he wouldn’t comment on the province’s response to the petition as the process is still before the courts, but reiterated local First Nations’ stance on the municipal planning document.
“The nations still feel strongly about their petition, and we look forward to the hearing dates later this year to have our concerns heard by the courts,” he said. Walker confirmed that five days of hearings have been scheduled, beginning Nov. 18.
Despite his opposition to the OCP, nations are committed to “creating a win for all of us,” said Jacob. “It’s unfortunate we are where we’re at, but our duty as a leadership is to protect the interests of our people.”
Whistler Mayor Nancy Wilhelm-Morden reported earlier this summer that council will hold regular informal meetings with the Squamish and Lil’wat as a way of keeping communication lines open between the RMOW and its First Nations partners.
The municipality has yet to respond to the nations’ petition, and RMOW manager of communications Michele Comeau said last week that “no firm date” has been set for filing a response in B.C. Supreme Court.