FACTS AND CIRCUMSTANCES BACKGROUNDER ON CITY OF VANCOUVER REGULATION OF SEN̓ÁḴW DEVELOPMENT

Kits Point Residents Association
admin@kpra.ca

May 31, 2022

Introduction

This exposition of facts and issues about the Sen̓áḵw development proposal is provided by Kits Point Residents Association (KPRA) for distribution to Vancouver citizens, City of Vancouver Mayor Kennedy and Council and executives, civic leaders and the media in order to stimulate an appropriate understanding and addressing of the identified significant civic issues.

For many decades KPRA has positively addressed COV civic and neighborhood issues and development proposals. KPRA Executive Team (KET) is a committee of eight City of Vancouver (“COV”) residents who live in Kits Point and coordinate KPRA activities. KET operates and decides by listening, seeing, informing and canvassing Kits Point residents about issues that may affect the KP neighborhood.

The contents of this exposition have been researched and checked for accuracy to the best of ability and time. KET welcomes any corrections and will amend the contents if errors are indicated and substantive. Please send any to admin@KPRA.ca .

The content of this document and related KET Backgrounder Summary are to be considered as “Backgrounder” and may not be published in part or whole or without KET’s written permission. Any request for publication can be directed to admin@KPRA.ca .

KPRA welcomes constructive development in and around Kits Point and fully supports Squamish Nation’s right to responsibly develop the Sen̓áḵw reserve land. KET accepts and understands that Squamish Nation (and other First Nations) who occupied Kits Point lands were mistreated (forced to leave amongst many indignities) by COV and the Federal Government and other authorities in the past, which deserve consideration and compensation as a government responsibility or obligation.

It is to be noted, that in July 2000 an all‐encompassing lawsuit by Squamish Nation for claims in respect to Kits Point misconduct and lands commenced against the Federal Government was settled (“Squamish Nation Kits Point Settlement”):

  • “The Squamish band in British Columbia has voted overwhelmingly in favour of a $92.5‐million land‐claims settlement intended to heal festering wounds from one of the darker moments in the province’s history…
  • In one of the first agreements with a native band over land in the heart of Vancouver, the Squamish have abandoned their claim to a piece of prime Vancouver real estate – known as Kitsilano Point ‐‐ and several other sites in the southwest corner of British Columbia… The Squamish said they are particularly pleased to put the history of Kitsilano Point behind them…
  • The settlement will allow everyone to take a lesson from history and move forward, Mr. Jacob (Squamish Chief) said….

The $92.5‐million agreement is an out‐of‐court settlement of a case that combined the band’s land claims with a demand for compensation for historical mistreatment. The case was launched in 1977. Along with other allegations in the court case, the Squamish band charged the federal government with failure to protect their people from illegal seizure of their lands, from fraud and coercion. ”https://www.theglobeandmail.com/news/national/squamish-band-settles-claim-for-925-million/article1041312/
(See Appendix “A” for the full article)

Squamish Nation’s spokesperson, Khelsilem, has iterated that Squamish Nation does not consider the considerations regarding Sen̓áḵw development proposal involves reconciliation. https://www.vancouverisawesome.com/courier‐archive/opinion/is‐the‐squamish‐nations‐burrard‐ bridge‐housing‐proposal‐really‐about‐reconcilition‐3097804

There are many civic planning interests that are affected positively and negatively by any real estate development proposal within or attached to Vancouver. The Sen̓áḵw development requires connections to and use of COV Civic Resources (infrastructure, services, transportation systems, police, garbage disposal, transportation, and traffic and parking systems etc.) and its size and scale will have effects on COV citizens C (traffic, parking, biking, community centres, schools, view corridors, and shadows etc.) and the environment.

Regardless of who controls or owns the land, including federal, provincial or first nations, COV has the legislated jurisdiction derived from the Vancouver Charter to manage its own Civic Resources and citizen Livability. It has the power by negotiation to ensure that the size and scope of any development proposal it chooses to support with COV Resources fits well enough with the planning and zoning of COV and that any negative effects of developments to COV resources and Livability are minimized. In most cases the biggest factors to be examined and approved are the density, the concentration and heights of buildings and the effects of these on plans, view corridors, municipal infrastructure, services, traffic and transportation.

For any major development within its territory, COV establishes a consultative process whereby the party proposing a major planning or development provides comprehensive information to COV and its citizens about any significant impacts of the development’s size and scale on COV resources and interests for consideration, review and input by COV staff and citizens… before the development plans are finalized or accepted by COV as being appropriate. (“Consultation Process”).

A current relevant example is the Jericho Lands Consultation Process which enables a comprehensive exchange of information and citizen input over many years, to ensure it is planned appropriately: https://shapeyourcity.ca/jericho‐lands.

The same kind of consultative process should apply to an urban reserve development which is adjacent to, connected or surrounded by COV jurisdictional territory.

The Squamish Nation Sen̓áḵw development proposal has grown to a $20B commercial partnership between Nch’kay Development Corporation, the economic development company of the Squamish Nation and Westbank Projects Corp, a subsidiary of Westbank Corp, one of North America’s leading developers (“Squamish Nation Westbank)”. It is proposing to develop a highly concentrated set of 12 tall buildings (reaching 59 stories) on an awkward, triangular 10.5 acres of land, bisected by a major arterial bridge (Burrard), that will have 6000 residential rental units, almost entirely at market prices.

Employing average Vancouver occupancy numbers, this means there will be a population density of 10,000‐12,000 people. As set out below in detail, with 10,500 residents, the density of this development proposal will be 1000 people an acre, which is 10 times the density of Manhatten, 10.6 times as dense as Vancouver’s West End and 6.4 times as dense as the most‐dense municipal area in the United States.

As clearly illustrated in Appendix “B”, the Squamish Nation Westbank proposal for Sen̓áḵw has been publicly acknowledged by COV Mayor Stuart Kennedy and COV City Manager (“COV Executive”) to be an “unprecedented”, massively dense tower development. Thus, the proposed concentrated set of towers reaching 59 stories on a narrow plot is completely out of size and scale with existing Vancouver infrastructure, services, transportation and plans and will have consequent profound effects on adjacent neighbouring communities and Vanier Park, as well as developability of adjacent lands within the City.

It is also clear that Sen̓áḵw is commercial in nature and designed to maximize profits for the Squamish Nation/Westbank Corp partnership (expected to generate $20 billion in revenue (Business in Vancouver Dec 11, 2019).
https://biv.com/article/2019/12/squamish‐nation‐approves‐massive‐joint‐venture‐westbank

Khelsilem, the Squamish Nation councillor and spokesperson, has confirmed:

“It is important for the public to understand that this is an economic development venture, it is not an affordable housing project…” https://dailyhive.com/vancouver/Sen̓áḵw‐squamish‐first‐nation‐vancouver‐rental‐housing‐ development

This unprecedented, massively dense set of proposed buildings is extremely out of context with any previously applied for density and concentration of towers anywhere in Vancouver. However, it is the contention of the COV Executive that, because Sen̓áḵw is on reserve land, COV has in effect no jurisdiction and thus no say on the size and scale of what Squamish Nation/Westbank proposes to develop. Further and as result of this contention, COV Executive position is that the expected COV Consultation Process is thus not applicable to any decision regarding the size and scale of the Sen̓áḵw.

The purpose of this Backgrounder is to demonstrate that COV does have the capacity and mandate to manage the size and scale of the Sen̓áḵw development, because the reserve is surrounded by and necessarily connected to the COV, and requires (as acknowledged by Squamish Nation and COV) COV Executive approval of whether, how and when the many municipal services and infrastructure requirements can be provided, whether the traffic and transportation and parking issues can be effectively managed and planned, how development construction can proceed on city streets and how impacts on neighboring communities and amenities can be reasonably mitigated.

Thus COV has the capacity, authority and power to negotiate the scope and sale of the development to ensure it can reasonably fit or be accommodated with Vancouver Civic Resources and Livability.

Squamish Nation recognizes this right. Yet present COV Mayor Kennedy, Council and City Management are actively denying their ability to negotiate size and scale and is declining or abandoning their ability to negotiate it.

As a highly relevant aside, it is important to note that the primary/exclusive jurisdiction over and determination of First Nations’ rights and obligations with respect to lands, and in particular reserve lands, reside with the Federal Government constitutionally and legislatively:

“3.1 Federal Authority
Section 91(24) of the Constitution Act, 1867 provides Parliament with exclusive                                                                                                                                              legislative authority regarding “Indians, and Lands reserved for the Indians.” For the purposes of section 91(24), the Supreme Court of Canada has concluded that “Indian” includes Inuit (1939), status and non‐status First Nations, and Métis people (2016). In practice, however, the federal government has primarily exercised its jurisdiction narrowly by limiting it to status First Nations people resident on reserve and Inuit living in their traditional territories. Two federal departments, Indigenous Services Canada and Crown Indigenous Relations and Northern Affairs Canada, are the main organizations exercising this authority.” https://lop.parl.ca/sites/PublicWebsite/default/en_CA/ResearchPublications/201951E

Surprisingly, despite the fact that the Federal Government has the constitutional and legislative jurisdiction over relations with First Nations and reserve lands, our Federal Government representative, Honorable Hedy Fry, has communicated that the Federal Government “has no legal authority over its development”.

Further, notwithstanding the payment for and complete settlement of all claims in respect to Kits Point by Squamish Nation pursuant to the Squamish Nation Kits Point Settlement Hedy Fry confusingly states that “This project represents reconciliation for past actions against the Squamish Nation, who were displaced from that site”.

See the email from Hedy Fry attached as Appendix “C”

(Note the author’s position on the Federal Government’s authority, role and responsibility with respect to Sen̓áḵw is set out in detail in an accompanying, FACTS AND CIRCUMSTANCES BACKGROUNDER ON FEDERAL REGULATION OF SEN ÁḴW DEVELOPMENT)

The main point being advanced in this Backgrounder is that the COV Executive has abandoned its statutory authority and responsibility to responsively govern and manage the use of COV Civic Resources by failing to negotiate the size and scale of the Sen̓áḵw development. Because First Nations now control much of the most valuable land within and connected to COV, this issue is of primary relevance to the major issue in the upcoming COV election: what is the best way for COV to plan and approve the necessary density to accommodate Vancouver’s increasing housing needs?

Size and scale of Sen̓áḵw Development

Sen̓áḵw is a 10.5 acre triangular, narrow plot of land, bisected by the Burrard St Bridge that abuts South False Creek, Kitsilano and Vanier Park.

With the active lead and encouragement of COV Executive, the Squamish Nation Westbank plans for Sen̓áḵw have evolved to an extreme, unprecedented size and scale:

  • On April 10, 2019, the Sen̓áḵw development was revealed by Squamish Nation and Mayor Kennedy in a joint media event. Squamish Nation proposed, what was described by COV City Manager Siddhu Johnston and media as a “very dense” and “massive” 3000 rental units for 6,000 residents.
  • On that same day, City Manager Siddhu Johnston described the plans for 3000 units as being “very dense plus it’s complicated by the ‘very unique’ shape of the site” and stated that “the city doesn’t have jurisdiction to dictate what occurs on Squamish land.”
  • https://biv.com/article/2019/04/3000‐unit‐development‐could‐be‐built‐squamish‐land‐near‐ burrard‐bridge
  • However, the Mayor and COV City Manager pronounced at that event that essentially COV has no jurisdiction which was characterized to be …“no say” over the size and scale of the development.
  • This was picked up and published by mainstream media: “This prime parcel of real estate is poised to become the site of a massive development project that would change the landscape of Vancouver.” “…but the City of Vancouver has no say in this one” and “the City will have no legal authority over the project”. https://globalnews.ca/news/5153124/squamish‐nation‐housing‐development‐vancouver/
  • Shortly after this clearly iterated COV Executive position was publicly pronounced and accepted, on November 5, 2019, Squamish Nation confirmed its partnership with Westbank Corp, and proposed to double the massive and very dense development to 6000 apartment/condos, with a population density projected to be now 10‐ 12,000 people housed in a highly concentrated 11 towers with building heights reaching ultimately 56 stories.
  • Ray Spaxman, a former chief planner for the City of Vancouver states …. “It’s unprecedented in terms of the volume.” https://thetyee.ca/News/2019/12/04/Senakw‐Westbank‐Squamish‐Development‐Proposal‐ Kitsilano/
  • Reiterating the COV Executive position that it had “no say” in what was to be developed on Sen̓áḵw, Mayor Kennedy labeled it that day as “a real gift to the City”.
  • (See Appendix B for the numerous statements by the Mayor and City Manager acknowledging the concentrated and unprecedented density of the Sen̓áḵw development at the time of these announcements to the media and that COV has no authority or jurisdiction to affect the plans.)

The proposed Sen̓áḵw development size and scale, in relation to existing COV planning, infrastructure, services and livability, is fairly described as being an extreme outlier. Comparing the Sen̓áḵw 6000 residential density (using a low end 10,500 as its ultimate population) to the most dense municipal communities in the US, confirms this use of ‘extreme’:

Sen̓áḵw density will be at least 6.4 times more dense than Friendship Village 10 times denser than Manhattan.

In direct relation to Vancouver density, West End density is 94 people per acre and “the entire False Creek South area — between Burrard Street Bridge and Cambie Street Bridge — contains about 5,600 people living in approximately 3,000 homes on 136 acres, which is 41 people per acre”. https://dailyhive.com/vancouver/Sen̓áḵw‐squamish‐first‐nation‐vancouver‐rental‐housing‐development

This makes the Sen̓áḵw development more than 24 times as dense as False Creek South and 10.6 times denser than the West End.

The incontrovertible fact is that Squamish Nation/Westbank is proposing a development with extreme density within an intense concentration of towers reaching 59 stories, situate on a small parcel of land bisected by a major arterial bridge. This unprecedented outlier proposal, far exceeds current COV zoning, planning and infrastructure, which are designed to evenly spread scale and density around the city for the betterment of existing communities and neighborhoods.

Many Vancouver citizens and expert civic leaders, including Mike Harcourt Patrick Conden and Lothar Wiwjorra, agree that random high size and scale developments are a mistake, because affordable housing can be readily accomplished maintaining Vancouver’s community‐of‐communities approach with necessary density where appropriate in low to midsize buildings, like the Olympic Village.
https://www.vancouverisawesome.com/real‐estate/report‐finds‐missing‐middle‐solution‐to‐metro‐ vancouvers‐housing‐crisis‐5050676
https://www.cbc.ca/listen/live‐radio/1‐46‐on‐the‐coast/clip/15909055‐a‐39‐storey‐tower‐coming‐ granville‐broadway
https://vancouversun.com/opinion/letters/letters‐to‐the‐sun‐may‐14‐2022‐vancouver‐is‐worth‐fighting‐ for
https://vancouversun.com/opinion/mike‐harcourt‐vancouver‐at‐its‐best‐is‐a‐community‐of‐ communities

Discussion on the Effect of the COV Position of Not Having Jurisdiction

Real estate development in any municipality is highly regulated by zoning and construction laws which the municipality has the provincial legislative power and duty to use and enforce. A primary responsibility of a municipality is to plan for, zone and approve developments, by assessing and disclosing the effects on Civic Resources together with the effects on Livability (traffic, parking, shadows, view corridors etc) and the environment.

As detailed above and in Appendix B, even though Squamish Nation Westbank partnership proposed a scale of development that is extremely out of context with existing Vancouver plans, planning and zoning, COV Executive decided to broadly message that COV has “no jurisdiction”

“In a statement, the City of Vancouver confirmed the Squamish Nation would not be required to go through city hall to redevelop the area, but was hopeful they would be included in the process.” https://globalnews.ca/news/5153124/squamish‐nation‐housing‐development‐vancouver/

“Stewart also sees it as an expression of reconciliation, acknowledging that if residents oppose the project there are few ways to fight it because the development is on Squamish land and outside the city’s jurisdiction. https://www.cbc.ca/news/canada/british‐columbia/housing‐development‐planned‐on‐ squamish‐land‐in‐heart‐of‐vancouver‐1.5123728

Maintaining this position, communicates clearly that a First Nation, on reserve land connected to or within Vancouver (or any municipality), has the legal authority to:

  • develop anything it chooses, notwithstanding the municipality’s statutory authority to plan and manage the Civic Resources which the First Nation development requires for the development, and the impacts on Livability and the environment and livability within its boundaries , and
  • construct its development any way or time it chooses to, regardless of COV law and regulations.

This COV Position is thus a Canadian wide precedent which creates a host of issues and concerns about how urban reserve land development is to be managed and conducted throughout Canada.

After COV announced its “no jurisdiction” approach Khelsilem, the Squamish Nation spokesperson reiterated his understanding:

COV as a municipality may not have the power to “determine” zoning, but it certainly has the power to negotiate issues within its jurisdiction that it reasonably understands it cannot accommodate or provide, such as effects on Civic Resources, Livability and road construction issues. It can say quite simply during negotiations, this is too dense or too high to accommodate and indicate what would be better. This is already acknowledged by Khelsilem to be the case:

“There are a number of pieces at play and there is a requirement to work with the City of Vancouver for this development to provide infrastructure to the site, as well as coordination of engineering requirements on the roads that are adjacent to the site. If we think about how many construction vehicles will be coming and going from the site, they will have to travel on roads on the City of Vancouver, where it requires the Nation and the City to work together.” https://www.vancouverrealestatepodcast.com/podcast/11‐towers‐and‐6000‐new‐homes‐near‐ burrard‐bridge‐with‐khelsilem‐tlak%CC%B1wasik%CC%93a%CC%B1n/

“Khelsilem said other First Nations in Canada have partnered with developers before on smaller‐ scale projects, but municipalities have blocked some of those projects from going forward through service agreements.” https://globalnews.ca/news/5153124/squamish‐nation‐housing‐development‐vancouver/

Put another way, with respect to reserve land development connected to a municipality, if the size and scale is not suitable to be accommodated by the municipality for any reasonable reason within its statutory mandate, it can negotiate this and there is no right or capacity for a First Nation to impose that size and scale.

(As a relevant aside, the Federal Government needs to consult with First Nations and the Provinces for a proper process under a set of regulatory terms that will allow real estate development to proceed on reserves with more ease. There is a statutory process in place to do this as between First Nations, the Federal Government and the Provincial Government, as acknowledged by Khelsilem:

“There is also legislation at the provincial level called the First Nations Commercial and Industrial Development Act that allows for the Province to collaborate with the Federal Government to develop Federal regulations that will mirror Provincial law so that Provincial Law can apply on reserve lands. This legislation allows the mirroring of things like the Residential Tenancy Act in the province.” https://www.vancouverrealestatepodcast.com/podcast/11‐towers‐and‐6000‐new‐homes‐near‐ burrard‐bridge‐with‐khelsilem‐tlak%CC%B1wasik%CC%93a%CC%B1n/“There are a number of pieces at play and there is a requirement to work with the City of Vancouver for this development to provide infrastructure to the site, as well as coordination of engineering requirements on the roads that are adjacent to the site. If we think about how many construction vehicles will be coming and going from the site, they will have to travel on roads on the City of Vancouver, where it requires the Nation and the City to work together.” https://www.vancouverrealestatepodcast.com/podcast/11‐towers‐and‐6000‐new‐homes‐near‐ burrard‐bridge‐with‐khelsilem‐tlak%CC%B1wasik%CC%93a%CC%B1n/

In any event, it is clear COV has the authority, capacity and right to negotiate size and scale as it negotiates for accommodation of its Resources and permissions to allow construction and has unilaterally, abandoned its responsibility to do so.

Another primary resultant concern is that COV Executive is abandoning its fundamental management requirements of:

  • informing citizens and consulting with them about the effects on Civic Resources and Livability and the environment prior to the municipality deciding on the completion of the negotiation of Civic Resource agreements necessary to accommodate the development scale and density;
  • managing the size and scale of a First Nation development proposal which directly impacts on surrounding circumstances;

The effect of this COV position and conduct is that it enables First Nation developers to construct whatever they want regardless of the authority and responsibility of a municipal government and the impacts on surrounding communities.

COV’s “no jurisdiction/no say/no information” approach leaves its citizens completely out in the cold. Prior to completion of negotiations of the many necessary agreements with Squamish Nation Westbank, COV’s policy is to keep all information and issues pertaining to the effects of the development on COV Resources and interests in strict secrecy and has decided it has no obligation or need to provide any pertinent information to the public on the demands and potential effects of the extremely dense and high buildings, including:

  • the myriad of issues raised by the development plans that could affect current and future planning, how the Sen̓áḵw plans will affect COV infrastructure, COV and neighboring vehicle and bike traffic, transportation, parking, municipal infrastructure, Vanier Park the environment or how the scope (density and heights of buildings) will affect neighbouring communities;
  • what approvals from the Federal Government and Parks Board are necessary for the development to proceed.

As a result, a spontaneous citizen movement has erupted challenging the secret COV Park Board and Federal Government negotiations to use Vanier Park land for an access road to Sen̓áḵw that enables the Squamish Nation Westbank to construct and serve its massive tower density. (Vanier Park was specifically ceded by Squamish Nation to the federal government as a primary issue in the Squamish Nation Kits Point Settlement.) Several hundred upset citizens have coalesced in a campaign putting up signs, claiming illegality and advocating against the access road because it is a mis‐use of park land and enables the Sen̓áḵw extreme density and concentration of towers. https://vancouversun.com/news/local‐news/a‐road‐through‐vanier‐park‐kits‐point‐resident‐says‐ people‐signing‐up‐to‐protest‐proposal

It is a well‐established fact that Vancouver citizens and Indigenous people expect there to be an appropriate Consultation Process. Squamish Nation/Westbank have a civic responsibility to consult, stemming from the expected customary process to approve major developments. This has been acknowledged by Squamish Nation leaders Khelsilm and Chris Lewis:

“Khelsilem said the First Nation plans to communicate with residents, adding it could make the project stronger by raising questions that the designer or developer hadn’t considered.” https://www.cbc.ca/news/canada/british‐columbia/housing‐development‐planned‐on‐ squamish‐land‐in‐heart‐of‐vancouver‐1.5123728

Mr. Lewis stated it this way in a recent high profile public forum:

“We want to be good neighbours. We want to be part of a solution, not part of a problem…”

“We’re in a different era now where there’s a lot of talk around reconciliation and allowing first nations to showcase that we want to be good neighbours, that we want to build something that fits with the city that fits with the neighbours… to ensure we are moving forward in a communal way, solving not just the Nations’ problems but the City’s problems as well.”
(Alain Bertaud Public Salon, Sept 9, 2021 https://www.youtube.com/watch?v=aDodPar6AtA&ab_channel=PublicSalon)

Pursuant to its statutory power under the Vancouver Charter, COV can implement a Consultative Process with its citizens on any matter or issue relevant to its assets or services at any time it wishes to and this apparently would have the support of Squamish Nation.

In summary, COV has the exclusive statutory legal authority and duty to negotiate (including saying ‘no’ or “too much” where it would be reasonable to do so) to ensure that the proposed size and scale of the development can be accommodated and integrated within COV Resources, Livability and environment. These include transportation, sewage, water, traffic, parking, environmental mandates, energy, schools, garbage, community centres and bike and pedestrian pathways, together with other livability matters like the degree to which the height of the buildings create shadows or affect planned view corridors.

This is essential COV legal jurisdiction. It exists regardless of whether the land under development is on federal, provincial or reserve/First Nations land holdings.

KET has written Mayor Kennedy and COV City Manager Paul Mochrie, Hedy Fry, the federal MP responsible for Kits Point, and Bernd Christmas, CEO of Squamish Nation’s Nch’kay Development Corporation, the Westbank partner, iterating the main points raised in this Backgrounder several times. Here are brief summaries of their positions:

  • Paul Mochrie, COV City Manager, confirmed that COV does not have jurisdiction and any questions or comments regarding the form of development would be best addressed to Squamish Nation.
  • Hedy Fry MP for Vancouver Center: “The Squamish Nation is developing Sen̓áḵw on land it owns — and our government has no legal authority over its development, as it is on reserve lands…”
  • Bernd Christmas indicated that Squamish Nation, as a separate level of government, has a primary responsibility first and foremost to its constituents, the members of the Squamish Nation and remains committed to full transparency in respect , to any agreements that are reached with COV, following approval by Squamish Nation Council.

This confirms that COV and the Federal Government are combining to waive or abandon their legal duty and responsibility to regulate the Sen̓áḵw development.

Summary

The Squamish Nation proposed Sen̓áḵw extreme density, together with a concentrated cluster of high buildings up to 59 stories, situate on a small parcel of developable land, bisected by a major arterial bridge along a coastline, is an unprecedented outlier, far exceeding and out of alignment with Vancouver’s current zonings and plans.

By indicating they have no jurisdiction to negotiate size and scale the COV Executive Authority abandoned COV statutory power and duty to govern and manage this development. They have fettered their discretion to decide and regulate the Sen̓áḵw development proposal in accordance with their legislative authority.

COV and its residents will be supporting the development through the provision of the Civic Resources and services necessary for the development to proceed, but COV Executive Authority is failing to represent its citizens and their Livability by not negotiating key issues such as scale and density, negotiating with Squamish Nation Westbank in secrecy and refusing to provide meaningful information to or consult with its residents.

Together with the fact the Federal Government has not enacted legislation to govern real estate development, has led Squamish Nation to naturally conclude that it can determine size and scale of reserves that are attached or connected to COV land and Civic Resources. However Squamish Nation understands it has no unilateral right to do so because it has to negotiate to access Civic Resources and COV has an obligation to protect and enhance its Livability, plans and planning.

Further, given that the major issue in the upcoming COV election is how Vancouver can effectively plan and construct the density needed over the next ten years, the COV policy and process failures with respect to the effects of the massive, out of context density and building heights should be front and centre.

A Canadian wide issue that is agreed by all parties is the lack of public and political attention, focus and debate on the gaps in meaningful federal and provincial regulation of First Nations lands, including reserves. To quote Khelsilem:

“As discussed before, the Federal Government could create regulations that would mirror provincial law that would apply to a similar development, with the input of the Nation. This would mean that the Nation is not following the regulations because they want to, but because there are regulations in place. This provides a clarity of what regulations are being followed and what regulations are in place.” https://www.vancouverrealestatepodcast.com/podcast/11‐ towers‐and‐6000‐new‐homes‐near‐burrard‐bridge‐with‐khelsilem‐ tlak%CC%B1wasik%CC%93a%CC%B1n/

In conclusion it’s fair to assert that the absence of responsible, responsive governance and government by COV and the Federal Government in respect to the Sen̓áḵw Development raises significant national and municipal constitutional and legal issues and constitutes a major COV planning and election issue.

APPENDIX “A”

GLOBE AND MAIL ARTICLE ON FEDERAL GOVERNMENT SETTLEMENT

OF SQUAMISH NATION KITS POINT CLAIMS

THE GLOBE AND MAIL

PUBLISHED JULY 25, 2000

UPDATED APRIL 4, 2018

The Squamish band in British Columbia has voted overwhelmingly in favour of a $92.5- million land-claims settlement intended to heal festering wounds from one of the darker moments in the province’s history.

In one of the first agreements with a native band over land in the heart of Vancouver, the Squamish have abandoned their claim to a piece of prime Vancouver real estate — known as Kitsilano Point — and several other sites in the southwest corner of British Columbia. The list of sites also includes 494 hectares north of Vancouver covered almost entirely by the town of Squamish, and 30 hectares in North Vancouver now occupied by privately owned houses, apartments and a park. The Squamish said they are particularly pleased to put the history of Kitsilano Point behind them.

In 1877, 35 hectares of land at the south end of Burrard bridge was set aside as a reserve for the Squamish people. But 36 years later, the B.C. government under Conservative premier Richard McBride forced the Squamish people to abandon their waterfront property at Kitsilano Point to enable the city of Vancouver to expand.

The government considered the Indian village to be an eyesore. It ordered the natives to gather all their belongings and report to the dock, where they were to be taken to areas on the north side of Burrard Inlet.

Boarding the barge, each family was to be given $11,250. Not every family accepted the money, although 18 families did. Regardless, the government took over all of the land. As soon as the natives were out, the government torched their homes and barns.

The site now includes the Vancouver Museum, the Southam Observatory, the H.R.MacMillan Planetarium, a Molson’s brewery, a housing complex and Vanier Park, which is used for The Children’s Festival and summer-long Shakespearean productions. 

“It was horrible,” Squamish Chief Gibby Jacob said yesterday in an interview. “Most of the elders could not even speak English. And there were no words in our language to describe the things that were going on.

The settlement will allow everyone to take a lesson from history and move forward, Mr. Jacob said.

The $92.5-million agreement is an out-of-court settlement of a case that combined the band’s land claims with a demand for compensation for historical mistreatment. The case was launched in 1977. Along with other allegations in the court case, the Squamish band charged the federal government with failure to protect their people from illegal seizure of their lands, from fraud and coercion. Neil Rayner, spokesman for the federal Department of Indian Affairs, said that the financial settlement is intended to resolve disputes over all 30 allegations and should be considered as a package. “It’s a good deal for all Canadians,” he said. “It would be more expensive to settle the 30 claims separately, and it ensures public use of these public lands.” The federal government has spent $6 million so far dealing just with the Kitsilano Point claim.

The settlement was approved by 1,121 people, reflecting support by more than 80 per cent of those who voted on Sunday. The final count, released yesterday, showed 1,488 of 1,940 eligible voters cast a ballot. “It’s a big shot in the arm,” Mr. Jacob said. Most of the money will go into a trust that will be used for elder care, housing, education, recreation and promotion of the Squamish ancestral language and culture. Up to 20 per cent of the payment — $18.5-million — could be distributed directly to members of Squamish Nation, providing about $9,500 for each voter.

In return, the federal government has received assurances the Squamish Nation will no longer claim the lands and they will not sue the government in relation to these lands. Some of the land is also claimed by the Musqueam and Burrard bands, and the Squamish will also have to pay out and settlement if the court decides that either band is the rightful owner. Squamish band members have been told by Mr. Jacob in his letter that they are not selling or giving up any land because, currently, they do not own the land.

Private property owners and corporations hold title to the land. Squamish native leaders have acknowledged that it is highly unlikely a court would ever declare that the Squamish people own the land under the homes and businesses, or require the owners to vacate. “It should be understood that the government of Canada with whom we have negotiated, does not have the land to give,” Mr. Jacob has stated in a letter to band members. Mr. Jacob also pointed out that in 1914, some Squamish people took money for the land included in the current claim. Referring to six sites in the Squamish Valley, Mr. Jacob wrote that without a settlement, there would have been “a strong possibility” a court would say the Squamish Nation gave up its rights to these lands. In the interview, Mr. Jacob said the settlement reflected an analysis of the risk involved in waiting for the court to decide the case. “We believe there was an infringement of our rights in the taking of our land,” he said. “There was a lot of give-and-take in the negotiations. We put forward [our claim] the federal government started at a lower figure. We ended up where we are at,” he said. The current settlement is unrelated to the controversial treaty negotiations in B.C. or the negotiations process that lead to the Nisga’a treaty. The Squamish Nation continues to pursue a much larger land claim with the federal and provincial government over different land.

_____________________________________________________________________________

APPENDIX “B”

The following is a chronology of events that demonstrates the COV Executive from the beginning have signaled Squamish Nation can build whatever it wishes, while at the same time keeping all information about the projected effects on COV assets and citizens, the roles of other governments (federal and Parks Board)  and its negotiations with Squamish Nation Westbank partnership shrouded in secrecy.

By necessity COV Executive must decide how and when the many municipal services and  infrastructure requirements can be provided, whether the traffic and transportation and parking issues can be effectively managed and planned, how development construction can proceed on city streets and neighborhood impacts can be reasonably mitigated. There is nothing legally or constitutionally requiring COV to accept any scope or scale. Thus COV can negotiate the size and scale if it does not fit with COV planning while it negotiates the multitude of agreements necessary to accommodate the extreme density and concentration and heights of buildings.

Instead  doing so, COV Executive apparently set out on a path to deny this statutory duty and responsibility.

Initially, on April 10, 2019, Squamish Nation announced its Sen̓áḵw development plans in tandem with Mayor Kennedy for a development of 3000 apartments. This scale of development was fairly described by media (and responding citizens) as being on “prime land next to a Vancouver Park” and “massive”:

“This prime parcel of real estate is poised to become the site of a massive development project that would change the landscape of Vancouver.” “…but the City of Vancouver has no say in this one” and “the City will have no legal authority over the project”.

Mayor Kennedy stated verbally the “the legal jurisdiction really resides with Squamish Nation”. Mayor Kennedy indicated COV’s only role to be “…there will eventually be a service agreement between the city and the nation regarding policing and community access to service…”. 

“In a statement, the City of Vancouver confirmed the Squamish Nation would not be required to go through city hall to redevelop the area, but was hopeful they would be included in the process.”
https://globalnews.ca/news/5153124/squamish-nation-housing-development-vancouver/

On that same day, City Manager Siddhu Johnston described the plans for 3000 units as being “very dense plus it’s complicated by the ‘very unique’ shape of the site” and stated that “the city doesn’t have jurisdiction to dictate what occurs on Squamish land.”
https://biv.com/article/2019/04/3000-unit-development-could-be-built-squamish-land-near-burrard-bridge

Other media reports followed suit:

“The Squamish Nation is planning an enormous rental housing project on central Vancouver land it owns near the Burrard Bridge”
https://globalnews.ca/news/5153124/squamish-nation-housing-development-vancouver/

Major media interpreted and received this, as it was intended to mean, that even though 3000 units was massive and enormous, COV has effectively no way to affect or negotiate how this development can be planned because it is on Sen̓áḵw Reserve Land. Here are but a few samples:

  • “The ambitious project next to the Burrard Bridge and Vanier Park on the False Creek waterfront in central Vancouver would occupy the last of their reserve land in the city. It is likely to spark controversy in the tony Kitsilano neighbourhood nearby, where in recent weeks residents have been protesting the development of a couple of low-rise apartment buildings.

    Development of so many apartments, which the Squamish are considering restricting to all rental, could help Vancouver alleviate its housing crisis, but the city does not have jurisdiction over the Squamish land.”
    https://www.theglobeandmail.com/canada/british-columbia/article-vancouvers-squamish-nation-plans-massive-apartment-development-or/?cmpid=rss

This initial series of comments by Mayor Kennedy and Mr. Johnston conveyed to media and citizens that COV does not have the jurisdiction or authority to influence, modify or alter the development plans…and instead must accept and accommodate any plans put forward by Squamish Nation. They have acted consistent with this position to the present day.

The sub text message is that COV has no power or ability to change the Squamish Nation Westbank plans and will not be attempting to do so. As a result, COV Executive also took the position that it has no jurisdiction to establish a Consultation Process with its citizens, notwithstanding the fact that it has the legal statutory power and authority to consult with its citizens over any matter that could affect Civic Resources, the environment and livability.

So COV set in motion, right off the bat, that it is entirely up to the Squamish Nation to determine the scope or scale of the development and… this takes away COV need to consult with its citizens.

The fact of the matter is that COV must have the statutory jurisdiction, mandate and legal duty under the Vancouver Charter to decide if and how COV will agree to accommodate the multitude of issues a massive out of size and scale development will have on civic assets. Here are some particulars of the civic issues and consequent potential civic expenses that COV has the statutory authority and responsibility to address or negotiate to its reasonable satisfaction in any real estate development that would connect to Vancouver Civic Resources:

  • Impacts on infrastructure (such as sewers, gas, water, roads/bike paths and parking) and services (transportation, community centers, health care, parks and schools) for both Sen̓áḵw residents and adjacent communities, including any improvements necessary to accommodate the proposed “massive” density.
  • Whether the development will fit within planning priorities, zoning and budgets.
  • How shadows, view corridors, traffic, parking, transportation, schools and community center will be affected and addressed.
  • How the development impacts the environment (including adjacent housing, parks and shoreline).
  • How construction vehicles and equipment will access the site and develop it and the coordination of all engineering for construction and connecting to municipal infrastructure.

In order to be able to govern, COV must logically have the authority and capacity to say that it cannot accommodate the Squamish Nation demand if it is not going to be suitable for any reasonable particular of its Civic Resources. Otherwise, Squamish Nation achieves this municipal government power by abdication. That would constitute a failure by COV to exercise its legislative authority. Put the opposite way, when COV negotiates size and scale changes to the development proposal, it is not regulating Squamish reserve lands, it is indicating what will reasonably work for its Civic Resources and Livability of its citizens.

So alternatively, it must be the case that Squamish Nation’s jurisdiction over its reserve lands does not provide it with the inherent capacity or discretion to develop whatever it wants within or attached to Vancouver.

That said, the premise that COV has no jurisdiction has been assumed and reiterated  by statements from Squamish nation:

“Chief Jacob said today that permission is not required from the City of Vancouver because the project would be on self-governing native land.”
https://www.kitsilano.ca/2011/02/09/squamish-first-nation-still-has-plans-for-high-rise-towers-in-kitsilano/

“Where the City will not be involved is on the development site for the zoning. The height, unit sizes, density and other factors will not be determined by the City of Vancouver”.
https://www.vancouverrealestatepodcast.com/podcast/11-towers-and-6000-new-homes-near-burrard-bridge-with-khelsilem-tlak%CC%B1wasik%CC%93a%CC%B1n/

The project was characterized by Squamish Nation as inevitable on its site: Construction would commence in the fall of 2021. https://Sen̓áḵw.com/timeline

In summary, COV Executive and Squamish Nation  set the stage on April 10, 2019 that COV had no jurisdiction and Squamish Nation can essentially plan and develop, the developer’s dream… of whatever it wishes.

Shortly thereafter on Nov 5, 2019, COV and Squamish Nation in tandem convened a second media presentation and release event. Westbank Corp, one of North America’s leading developers was named as its developer partner. The earlier “massively” dense development was doubled to an extreme, unprecedented 6000 units with upwards of  10,000 residents in 11 buildings of various heights from 17 to 56 stories.

At the media event, Mayor Kennedy “dismissed concerns that because of Squamish land rights, the proposal could be out of step with the city’s development goals.”
https://globalnews.ca/news/6131104/squamish-nation-Sen̓áḵw-development/

CBC reported it this way:

“Vancouver Mayor Kennedy Stewart says he supports a local First Nation’s plan to build a large‐ scale housing project in the centre of the city that is raising concerns about the pressures it will place on city infrastructure and services…”

“Larry Benge, co‐chair of the Coalition of Vancouver Neighbourhoods, is concerned about the density and scale of the project and worries it could overwhelm the aesthetic of the iconic Burrard Street Bridge.”

“‘It would be good if all parties involved or affected could discuss what’s going on’, said Benge.”

“I really think this is a real gift to the city,” said Stewart. “Everything we can do to make this project be successful is at the top of my list.” 
https://www.cbc.ca/news/canada/british-columbia/vancouver-mayor-first-nation-development-gift-to-the-city-1.5351953

Within days, on December 11, 2020 , Squamish Nation voted in favour of proceeding with a partnership with Westbank Corp. It was characterized that the proposed size and scale would be unchallenged by COV and Squamish can proceed to construct as fast as it wishes:

“Now that the First Nation’s leaders have secured a mandate from their members to proceed with the project, it is expected to move at a relatively breathtaking pace. Construction on the first phase is expected to begin in early 2021, with an aim to reach completion on all five phases within just five years.”

“Some consultation with the wider community, providing the public with information on the project, is planned for the new year, although it is not required.”
https://dailyhive.com/vancouver/Sen̓áḵw-vancouver-approved-squamish-first-nation-westbank

Experts and media remarked with shock on the proposed enormity of the size and scale:

Then, on February 2nd , 2021, the project was quietly, unilaterally increased to 12 buildings (now with an office building) with the highest now being 59 stories.

Khelsilem, the Squamish Nation spokesperson, touted that “Because we’re in control as landowners and developers, there are many opportunities to shape different aspects of the project”.
https://www.theglobeandmail.com/canada/article-Sen̓áḵw-in-vancouver-the-squamish-nation-shapes-a-sustainable-village/

On Feb 5, 2021, Nch’Kai West  unilaterally announced it would offload parking and require major COV infrastructure development/construction materially affecting traffic and transportation:

“For the amount of residential density proposed, a sheer number of vehicle parking stalls would typically be required. However, Sen̓áḵw is being designed as a minimal parking development, says Khelsilem, with about one vehicle parking stall provided for every 10 homes. That is equivalent to roughly just 600 vehicle parking stalls.

Instead, there will be an emphasis on active transportation — thousands of secured bike parking spaces and ample bike share availability — and greatly enhanced public transit connections directly from the site.

New seamless, direct connections between Sen̓áḵw and the Burrard Street Bridge will be established.

The First Nation is proposing to make alterations to the Burrard bridge that would widen a segment of the southern end of the bridge deck to create an on-bridge public transit hub, while also retaining the dedicated pedestrian and cycling pathways. North-south buses on the bridge heading in and out of downtown would then be able to pull into new bus-only curb lanes to pick up passengers at the new bus stops.

Just south of this hub, new gentle ramps will be added on both sides of the bridge to create pedestrian and cycling links.
”https://dailyhive.com/vancouver/Sen̓áḵw-squamish-first-nation-vancouver-rental-housing-development

______________________________________________________________________________

APPENDIX “C”

Honorable Hedy Fry,

Subject: Re: Proposed sacrifice of Vanier Park

Dear xxxxxxxx,

Thank you for writing to me regarding the Sen̓áḵw development and Vanier Park. I hope you are keeping well and staying safe.

The Squamish Nation is developing Sen̓áḵw on land it owns — and our government has no legal authority over its development, as it is on reserve lands. The total size of Sen̓áḵw is a fraction of the former reserve; the Sen̓áḵw site is 11.7 acres, a slice of what was once an 80-acre reserve known as Kitsilano Indian Reserve No. 6. 

This project represents reconciliation for past actions against the Squamish Nation, who were displaced from that site. We understand that Sen̓áḵw will foster the development of 6,000 affordable rental units whilst ensuring accessible community space; roughly 80 per cent of the land will be reserved for parks and community space. These decisions have been made in consultation with the City of Vancouver and local community residents. 

To service the Sen̓áḵw development, the City of Vancouver has consulted with the Squamish Nation and their development partners to provide an access road. Whilst Vanier Park is Federal land, the land has been leased to the City of Vancouver. I have noted your concerns about the city’s compliance or non-compliance with the lease and forwarded them to the responsible Minister. Please note, as we are currently in an election, Parliamentary services are limited. Be that as it may, I will continue to pursue this matter with the Minister and ensure your voices are heard.

At the same time, I will note primary jurisdiction remains with the City of Vancouver. I would encourage you to contact the Vancouver Parks Board and City of Vancouver Councilors to express your concerns. 

Once again, thank you for writing to me about Vanier Park and the Sen̓áḵw development. Should you have any further questions or concerns, please do not hesitate to reach out to me at 604-666-0135 and/or hedy.fry@parl.gc.ca

Kind regards,

Hon. Hedy Fry, P.C., MP

Vancouver Centre

Related posts:

Sen̓áḵw History
Letter to Bernd Christmas, CEO, Nch'Kay Corporation, Dec 2021
Senakw 2021 Fall Update
KPRA Response to COV re Sena’kw Development
KPRA PETITION HEARING UPDATE FOR APRIL 18, 2023