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B.C. Supreme Court rules in favour of First Nations on OCP

Judge says province did not fulfill consultation duty with Squamish and Lil'wat First Nations



A B.C. Supreme Court judge on Wednesday, June 4, ruled in favour of the Sea to Sky region's First Nations, who challenged the provincial approval of Whistler's Official Community Plan (OCP), saying the B.C. government did not fulfill its consultation duty.

Whistler's OCP was officially approved by B.C.'s Ministry of Community, Sport and Cultural Development last spring, amidst concerns from Lil'wat and Squamish Nation officials that they were not adequately consulted ahead of its approval.

The Nations filed a joint petition against the Ministry, which also named the RMOW, in May.

"We are disappointed with the court decision," wrote Whistler Mayor Nancy Wilhelm-Morden in an email. "The updated OCP was the result of an extensive process with more than 2,500 hours of citizen and stakeholder time invested over three years."

The OCP was adopted by Whistler council in May, 2013.

"During the course of the OCP's development we had made significant efforts to be inclusive and take into account Lil'wat and Squamish First Nations interests. A continued strong working relationship with our First Nations neighbours is important to the RMOW," Wilhelm-Morden continued.

In his decision, Supreme Court Justice Bruce Greyell concluded that the Ministry "incorrectly assessed the nature and scope of the consultation duty arising under these circumstances" and that the consultation that did occur was insufficient.

According to the judgment, the First Nations felt that the duty to consult "fell between the cracks" of local and senior levels of government.

"From their perspective, (the Petitioners) participated with good faith in consultation with Whistler while being told that the municipality had no obligation or ability to consider the concerns they expressed because those were matters for the Province," Greyell wrote. "When the time came to express their concerns to the representatives of the Province who did have the obligation and the ability to consider their concerns, their requests for meetings were denied."

"Throughout the consultation process, we did not feel as though our concerns or interests were given serious consideration by either the Province or the RMOW," wrote Chief Lucinda Phillips of the Lil'wat Nation in a release. "This decision vindicates our position and will hopefully encourage the RMOW and Province to work cooperatively with the Lil'wat and Squamish Nations in the future."

The main sticking point for the Nations is the OCP's inclusion of a hard cap on future development, which they claim would infringe on their Aboriginal rights by preventing them from pursuing economic development opportunities on Crown land located within municipal boundaries.

Wilhelm-Morden said the RMOW will review Wednesday's decision and meet with provincial officials to discuss the ruling.

Check back with Pique next week for more information on the decision.