Court challenge to First Nation's massive Vancouver development project rejected

A rendering shows some of the 11 proposed towers of the Sen̓áḵw development project on both sides of the Burrard Street Bridge. (Revery Architecture)

The B.C. Supreme Court has dismissed a neighbourhood association's attempt to stop the City of Vancouver from providing services to the massive Senakw development currently under construction at the south end of the Burrard Bridge.

The Kits Point Residents Association sued the city and the Squamish Nation in an effort to quash the agreement that would see the city provide services for the development, which is on Squamish reserve land.

The association advanced a variety of legal arguments for why the services agreement should not stand, but Justice Carla L. Forth rejected each one, finding that the city council had followed the law and acted reasonably in making its decision.

BACKGROUND

Issued Friday, Forth's 73-page decision goes into significant detail about the Senakw development, its history, and the Kits Point Residents Association's opposition to it in its current form.

The project, which the Squamish Nation is building in partnership with developer Westbank, will see the construction of more than 6,000 rental units spread across 11 towers built in phases.

Because the land the development occupies is a Squamish reserve, City of Vancouver land use bylaws don't apply, and the city cannot control what gets built there.

At the heart of the association's frustration, however, is the belief that the city did have the ability to influence the plans for the site, and that it chose not to wield that influence, resulting in a development that – in the eyes of the association – is too tall, too dense and will put too much strain on the neighbourhood's existing infrastructure and services.

The association's lawsuit put forward five legal arguments for why the services agreement should be set aside.

First, it argued that the city council's resolution authorizing staff to enter the services agreement should not have been made at an "in camera" meeting that was closed to the public, and that council doing so was either an incorrect or unreasonable interpretation of the Vancouver Charter.

Second, the association argued that the council's decision was procedurally unfair because it didn't allow adequate public participation in the process.

Third, the association argued that the city did not have the legal authority to enter the services agreement.

Fourth, it argued that the city acted in bad faith.

And fifth, it argued that the city "fettered its discretion" on the matter by adopting "guiding principles" for negotiating with the Squamish Nation that allegedly limited the city's ability to consider all available options.

THE IN-CAMERA MEETING

The services agreement came about as a result of an in-camera meeting the city council held on July 20, 2021.

At the meeting, councillors approved a resolution providing guidance on the then-ongoing negotiations, as well as authorization for city staff to execute the agreement once outstanding issues were addressed.

The neighbourhood association argued that this resolution was approved in violation of the Vancouver Charter's provisions on in-camera meetings, which stipulate that decisions may only be made at in-camera meetings if they are preliminary and would harm the interests of the city if they were made in public.

Forth considered the city's interpretations of the words "preliminary," "harm," and "interests of the city," and found them all to be reasonable, even if they didn't match the preferred interpretations of the association.

The judge noted the fact that significant issues with the agreement were resolved after the decision as evidence that it was "preliminary." She also noted that making the decision at a public meeting "could have negatively impacted the negotiations" regarding those outstanding issues, meeting the definition of harm to the city's interests.

Regarding those interests, Forth rejected the association's argument that it was necessary for the city to interpret "the interests of the city" as equating "only to the interests of the Vancouver residents in their communities."

"It is my view that 'the interests of the city' encompass a variety of considerations including the reputation of the city, fiscal issues and the consideration to be given to a wide variety of stakeholders, including the relationship between the city and the nation," the judge wrote.

"The city took the position that it had no ability to regulate or control the development as it was on reserve lands," she continued.

"Legally, this is correct. The city staff considered whether there should be any type of public consultation and concluded in the 2020 report that the city 'is not intending to undertake public consultation about the project per se as to do so would imply that the city had some regulatory control over the (nation)’s land use decisions, which it clearly does not.' This was a reasonable position for the city to take in relation to the facts and law that constrain this decision maker in the unique situation it faced."

FAIRNESS AND LEGAL AUTHORITY

On the question of fairness, the neighbourhood association argued that, although the city was not legally obligated to hold a public hearing about the Senakw development, it still had a duty to consult with neighbourhood residents before entering the services agreement.

Forth rejected this argument for multiple reasons. First, she found that the services agreement, though of significant interest to Kits Point residents and Vancouverites more broadly, does not involve the balancing of their rights and interests sufficiently to trigger a procedural fairness obligation.

Second, the judge noted that the services agreement is a commercial agreement, and cities are not required to engage in public consultations before entering commercial agreements.

"I acknowledge that the development will certainly impact the residents of Kits Point and Vancouver more generally given its size, scale and unprecedented nature; however, I do not find that the level and nature of the impact is one that necessitates participatory rights in the form of public consultation," Forth wrote.

Regarding the city's legal authority to enter the services agreement, the association and the city disagreed about what section of the Vancouver Charter applied, and Forth sided with the city's interpretation.

"Ultimately, I find that the city’s interpretation of its delegated powers with respect to entering into the services agreement was reasonable," she wrote.

BAD FAITH AND FETTERED DISCRETION

The association argued that the city "acted in bad faith by conducting a non-transparent process" and "representing to the public that the city did not have any jurisdiction or control over the development."

Forth disagreed with this argument, noting that bad faith has been defined in previous court decisions as "dishonesty, fraud, bias, conflict of interest, discrimination, abuse of power, corruption, oppression, unfairness, unreasonable conduct, and conduct based on an improper motive or undertaken for an improper, indirect or ulterior purpose."

"The petitioners have a fundamental disagreement with the approach taken by the city and the process it followed," the judge wrote. "On my review of the totality of the evidence before me, I see no evidence that any city official acted in bad faith."

Forth went on to address this "fundamental disagreement," which also underpinned the association's argument about "fettered discretion."

"The decision made by the city that it would not use the negotiation of the services agreement as a means to force the nation to change the density of the development was based on the city’s view of whether this was an appropriate strategy in all of the circumstances," she wrote. "After fully considering the issues, the city concluded it was not. I see no basis to find that the city officials acted in a bad faith manner in this regard."

Similarly, the judge concluded that the city's "guiding principles" for its negotiations with the Squamish Nation did not amount to the city fettering its discretion.

Those principles were that the city:

• a. respected the nation’s right to develop its lands as it saw fit;
• b. would learn the nation’s aspirations for the Senakw development and how best to support the integration of the project; and
• c. would take guidance from the nation on how it would like to “engage in the development of the communication and operating protocol.”

Of the three, only the third one could be seen to potentially fetter the city's decision-making ability, according to Forth.

"The third principle respecting taking guidance from the nation does potentially support that the city fettered its discretion," the judge wrote.

"However, the evidence does not demonstrate that city officials blindly followed this. As it turned out, the city did not agree with the nation’s position that the services agreement should remain confidential and not be disclosed to the public. After considering the nation’s position, the city decided that it should be made public, and that is what happened. I find there is no evidence to support that the city fettered its discretion as a result of adopting the guiding principles."

Though she rejected every argument advanced by the neighbourhood association and dismissed its petition, Forth ended her decision by expressing empathy for their experience and suggesting the city may not want to demand that the association cover its court costs.

"I understand the frustration of the petitioners since they were impeded at every step in trying to obtain information about the process and how the services agreement came into existence," Forth wrote.

"In order to access this information, the petitioners had to resort to bringing this petition. Their concerns are legitimate in respect to the impact the development will have on traffic congestion, transportation challenges, and many other concerns. They were provided with no public forum to bring forward their concerns and have them heard. In my view, although the city was successful in defending this petition, it should consider whether costs should be pursued."