By Tracy Hughes – Salmon Arm Observer
Published: April 04, 2012

see www.saobserver.net/news/146210865.html

NOTE: click here for a copy of the judgement – Judge Leask, re Neskonlith Band

A BC Supreme Court judge ruled against the Neskonlith Indian Band’s petition regarding the City of Salmon Arm’s handling of the  SmartCentres development permit process.

Justice Peter Leask dismissed the band’s claim in his decision which was handed down today, April 4.

In the decision, which resulted from three days of hearings beginning March 19, Leask noted the principle issue in the dispute rested on whether the city had an legal or constitutional obligation to consult with the band before issuing the environmentally hazardous area development permit for the SmartCentres site. The permit was approved by city council and was officially issued on Oct. 25. 2011.

The Band initiated the lawsuit saying they are concerned that the SmartCentres property will flood, and that flood-control measures will be necessary. These flood control measures, they argue, will do damage to the environment and to the interests of the Neskonlith people.

In its legal arguments, the Neskonlith Band claimed that they city had a constitutional obligation to consult with it before making decisions that could adversely affect its aboriginal rights or title. The Neskonlith Band’s land lies directly adjoining the SmartCentres property to the west.

Both the city and SmartCentres denied this was the case.

One of the main arguments made by the city is that B.C. law states that once an applicant has complied with the guidelines under an official community plan, a municipal council has no discretion to withhold the development permit. As well, they argued, existing case law from the Supreme Court of Canada and British Columbia courts makes it clear that a local government cannot stand in the shoes of the Crown for the purposes of a duty to consult and accommodate a First Nation.

In his judgment, Leask rejected the Neskonlith’s legal arguments.

“In this case, as even the Band agreed, there is no express or implied statutory language in the Local Government Act requiring or empowering the City to engage in… consultation or in any consultation beyond that required by s. 879,” Leask writes in his decision.

“I reject the argument of the Band that the duty to consult vests automatically with whoever is empowered to make decisions affecting aboriginal rights… I find that the City of Salmon Arm had no such duty. As a result, I dismiss the Band’s petition. In the circumstances, there is no need to consider the other arguments put before the Court.”

Leask’s ruling was issued in time to accommodate the SmartCentres proposed construction schedule which is set to begin later this month.

The Observer will have more information and reactions to the judgement as they become available.