By Lloyd Dolha
The BC Court of Appeal has suspended the $10 million sale of the UBC golf course by the BC Liberal government for a two-year period because of a “flawed” consultation process with the Musqueam First Nation.
“It’s a great victory,” said Musqueam Chief Ernie Campbell. “It’s unfortunate we had to go to court to get them to negotiate. It’s pretty frustrating. We shouldn’t have to go through this.”
The three judges ruled that the provincial government had breached its constitutional duty to consult and accommodate the Musqueam’s aboriginal title rights in authorizing the sale. They concluded that the Musqueam are entitled to a new “meaningful consultation process in order that avenues of accommodation could be explored” because the Crown’s past consultation process was “flawed.”
Last May, the provincial Liberal government authorized the sale of the 58-hectare golf course located in the high-end Point Grey area adjacent to the university. Under that arrangement, the Crown lands in question would become private lands thus removing them from the treaty negotiation process. The lands had previously been under lease to the university.
In recognizing the province’s breach of its constitutional duty owed to the Musqueam, the Court of Appeal suspended the authorization of the sale of land for a period of two years in order to provide the parties the opportunity to reach a negotiated settlement. Failing an agreement, the Musqueam are free to bring the matter back before the courts to force UBC’s hand to transfer the land back to the provincial Crown.
Moreover, the Court of Appeal specifically found that the duty owed to the Musqueam by the provincial Crown “tended to the more expansive end of the spectrum” (of consultation) and acknowledged that the Crown “conceded the Musqueam had a prima facie case for title over the golf course land …”
“The judge said there has to be expansive consultations, not just offer us little tidbits,” said Campbell.
With this in mind, the Musqueam are eager to begin discussions with the province regarding what the appeal court termed a “wide field” of “accommodative solutions” as well as the development of land protection measures with regard to Crown-held lands within Musqueam traditional territory with the goal of repatriating some portion of their territory.
The First Nations Summit, the body representing the approximate two-thirds of the province’s First Nations negotiating modern-day treaties, applauded the court’s decision.
“The legal ground has shifted in very significant and constructive ways,” said Grand Chief Ed John. “It’s important that the courts have pushed the Crown and First Nations to work together towards a fair and just agreements.”
Casino deal next on agenda
Chief Campbell said the outcome of the golf course case would be of help to the Musqueam in their legal challenge against the city of Richmond over the construction of the River Rock Casino Resort.
In that case, the Musqueam argue that the city of Richmond did not adequately consult the First Nation before approving the massive casino complex.
Campbell believes the city of Richmond and the BC Lottery Corporation fast-tracked the casino project “without proper regard” for the procedures and requirements outlined in the Gaming Control Act.
“They didn’t do the proper consultation. They already had the deal done and the construction begun before we even found out,” said Campbell.
The River Rock Casino is the largest in the province with 1,000 slot machines, 90 gaming tables and a resort hotel. The site is one of the few remaining parcels of Crown land that falls within the traditional territory of the Musqueam.
Interestingly, in the UBC golf course case, the court observed that the UBC golf course land “is not the only tract of land in the lower mainland that is provincial property …” and that “having regard to the wish of the appellant [Musqueam] to obtain … an enhanced land base as well its desire to pursue a land settlement … the parties should be afforded a wide filed for consideration of appropriate accommodative solutions.”
If the court rules in favour of the First Nation, some kind of compensation should be forthcoming. The compensation should be exceptional considering the casino’s annual revenue estimates are up to $185 million.
“I believe it (the UBC case) should help because it’s the exact same thing,” said Campbell.