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Vancouver city hall says no public meeting was required for Senakw services agreement

The city’s statement of defence against an application for a review says there was no legal duty under the Vancouver Charter to seek public feedback on the 120-year deal with the Squamish Nation.
Then-mayor Kennedy Stewart signed the agreement at a May 25 photo op with Squamish Nation council chair Dustin Rivers, aka Khelsilem

Vancouver city hall will consult area residents in early 2023 on potential transportation changes related to Westbank’s 11-tower development on the Squamish Nation’s Senakw reserve around the Burrard Bridge. 

But the city’s Dec. 12-filed statement of defence against an application for a judicial review of the Senakw Services Agreement says there was no legal duty under the Vancouver Charter to seek public feedback on the 120-year deal with the Squamish Nation.

The 250-page agreement spells out how Senakw will connect to the city’s water and storm sewers, sidewalks, roads, bike lanes and public transit and who pays for what. The 4 million square foot project, which proposes 6,000 residential units and 170,000 square feet of office and commercial space, is subject to federal approval only.

Kits Point Residents Association and two of its directors, Eve Munro and Benjamin Peters, filed for a judicial review on Oct. 5 in B.C. Supreme Court. They want a judge to quash the agreement because the city negotiated and approved it in secret. Residents were not given the opportunity to be heard at an open city council meeting, allegedly violating procedural fairness and natural justice. 

The city’s defence statement said the only consultation planned so far is to gather feedback on parking, walking, biking and intersection upgrades planned for Chestnut, Greer and Cypress, in order to “help refine transportation priorities moving forward.” It also said neighbouring Vanier Park will undergo the standard master planning process, which will include engagement with the public and the Musqueam, Squamish and Tsleil-Waututh first nations. 

As for the agreement at the centre of the dispute, the city maintains it acted properly under both the Indian Self-government Enabling Act and the Vancouver Charter. It also claimed the authority to pass resolutions behind closed doors. 

“As the final terms of the services agreement continued to be negotiated until July 19, 2022 it is clear that council hold both the July 20, 2021 and the November 2, 2021 meetings in camera,” said the city’s court filing. “Any release of the material considered or the decisions made on July 20, 2021 or November 2, 2021 could reasonably be expected to harm the interests of the city if they were known to the Senakw Partnership [Squamish Nation’s Nch’kay Development Corp. and Westbank] prior to the finalization of the services agreement.”

Negotiations began in October 2020. Council directed staff to recognize the Squamish Nation as a separate order of government, as per the city’s 2014 commitment to be a “City of Reconciliation,” and to “take guidance from the Squamish Nation” about the communication and operating protocol for negotiations. 

“Throughout the negotiations, the Senakw Partnership were clear that they expected both the negotiations and any resulting agreement to be kept strictly confidential.”

Initial negotiations were complete by early July 2021, but the sides kept talking about details for the next year, according to the court papers. 

Then-mayor Kennedy Stewart signed the agreement at a May 25 photo op with Squamish Nation council chair Dustin Rivers, aka Khelsilem. It was kept secret for another two months until it was quietly published on the eve of the B.C. Day long weekend. 

“The services agreement was executed on May 25 but made subject to an escrow agreement pending settlement on certain elements of the final legal text of the services agreement,” said the city’s defence statement. “These elements were settled on July 19 and the services agreement was then released to the public.”

At a Sept. 6 groundbreaking ceremony, Prime Minister Justin Trudeau announced a $1.4 billion loan through Canada Mortgage and Housing Corporation to finance half the units, touting it as the largest loan in the Crown corporation’s history. Westbank CEO Ian Gillespie is a friend of Trudeau and a Liberal Party supporter. 

Squamish Nation members agreed to a 50-50 partnership in 2019 with Westbank to build 6,000 units on 4.7 hectares of Kitsilano Indian Reserve 6 regained through court settlements. A consultant’s estimate from 2019 suggested the project could generate as much as $12.7 billion in cashflow for the band and developer. 

Since then, Westbank’s share was reduced to 30% and OP Trust, the Ontario Public Service Employees Union and Government of Ontario pension fund, now holds 20%. Nch’kay’s chair is former NDP finance minister and current BC Ferries chair Joy MacPhail. 

Nch’kay’s other holdings are the Mosquito Creek Marina, Lynnwood Marina, Capilano RV Park and Squamish Valley Gas Bar. 

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