Sunday, September 21, 2014
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First Nations' OCP petition hearings wrap up

B.C. Supreme Court decision expected in three to six months, says RMOW

by Brandon Barrett

A petition hearing over Whistler's Official Community Plan (OCP) wrapped up in B.C. Supreme Court last week, but RMOW and First Nations officials will have to wait at least three months for a judgment.

Squamish and Lil'wat First Nations filed a joint petition against the province following adoption of the municipal planning document by B.C.'s Ministry of Community, Sport and Cultural Development in May. The RMOW was also named in the petition.

Local First Nations are asking the OCP be thrown out because of claims that the plan's inclusion of a hard cap on future development prevents the Squamish and Lil'wat from pursuing economic development opportunities on Crown land that's located within municipal boundaries.

A hard cap on bed units included in the OCP, which can only be lifted by the municipality if a project demonstrates "extraordinary benefit" to the community, infringes upon the Squamish and Lil'wat's aboriginal rights, according to the petition.

The province filed a response to the petition in September, alleging that the Nations failed to identify any specific activities or aboriginal rights affected by the OCP. 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.

Petitioners also claimed the level of consultation with provincial officials ahead of the plan's adoption was inadequate. Victoria countered the claim, saying the record of consultation showed that the province met the legal requirement.

The municipality filed its own response requesting the court's dismissal of the petition, citing a 2007 Land Legacies Agreement signed between the Nations as having bound the Lil'wat and Squamish to the tenets set out in the OCP. Under the agreement, the province granted 300 acres and 452 bed units to the Nations for allowing the RMOW to expand its boundaries ahead of the 2010 Olympics. A provision of the deal stated 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," like, for example, Whistler's OCP bylaw.

The petition hearings began in Vancouver court in November, with the final three days of proceedings delayed until late last month. The hearings wrapped up last Wednesday, Jan. 29. The RMOW confirmed that a decision is expected in three to six months.

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