Court rejects Kitsilano group's petition to stop First Nation's Senakw project

BC Supreme Court dismisses Kitsilano group's petition to stop Squamish First Nation's Senakw project

September 2022 artistic rendering of the refined detailed design of Senakw: perspective looking northwest from Granville Street near West 4th Avenue. (Revery Architecture/Kasian/Tandem Studios/Squamish Nation)

Almost exactly one year after the Kitsilano Point Residents Association (KPRSA) filed a court petition to effectively stop the construction advancement of Squamish Nation’s Senakw rental housing project, a judge with the Supreme Court of British Columbia has released her ruling, coinciding with National Truth and Reconciliation Day.

In her written judgement, Justice C. Forth sided with the First Nation and the City of Vancouver, presenting her conclusion that there was no wrongdoing in the process that led to the Services Agreement reached with the First Nation, which outlines the utilities, transportation infrastructure, and fire and policing services that the municipal government will provide to Senakw.

“We are extremely pleased with today’s decision and look forward to continuing to work with the City of Vancouver on the next phase of this important project,” said Wilson Williams, a spokesperson and council member of the Squamish Nation, in a statement to Daily Hive Urbanized.

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Such a Services Agreement is necessary given that Senakw is being built on a sliver of land that is a reserve located at the south end of the Burrard Street Bridge.

By 2033, Senakw’s fully completed high-density complex of about a dozen buildings — including some of the tallest towers within Vancouver outside of downtown — will generate over 6,000 secured purpose-built rental homes and roughly 200,000 sq ft of commercial space.

In August 2022, the City publicly released the 250-page Services Agreement, which not only outlines how the municipal government will provide services and utilities to Senakw but also stipulates that Senakw residents and businesses will pay the same municipal property tax with rates based on the assessed property values and fees for utilities — the same formula used for all other municipal taxpayers.

The First Nation will also cover all of the municipal government’s related costs in integrating Senakw with Vancouver’s urban fabric and fund over $40 million in utilities and transportation infrastructure upgrades, including a bus transit hub on the expanded deck of the Burrard Street Bridge.

Earlier in 2022, the previous makeup of City Council made an in-camera (behind closed doors) decision that directed City staff to create the Services Agreement with the First Nation.

However, in their petition, KPRSA accused the First Nation and municipal government of breaching the rules of procedural fairness by finalizing the critical agreement that makes Senakw possible behind closed doors without consulting residents affected by the neighbouring development and the contents of the agreement. They ultimately wanted the court to direct the City to terminate the Services Agreement.

But Justice Forth’s ruling today states there is “no evidence that any City official acted in bad faith” and that the “City did not fall short of its procedural fairness obligations in its choice of procedure.” For that reason, “the process used was not unreasonable nor arbitrary.”

She wrote the City did not improperly fetter its discretion on the basis of the principle of respecting the First Nation’s ability to develop their reserve lands as they saw it.

On the other hand, the group suggested the municipal government should have used its ability to refuse to provide services to Senakw as a bargaining tool to reduce the project’s high density and tall design, which has been a sticking point for the group.

“That position is legally correct in that municipalities do not have the power to regulate zoning and land use planning on Indian reserve lands,” she stated.

“The City, in my view, reasonably rejected that as the appropriate course to follow in light of their legal constraints and political interests.”

It is also revealed in the judgement that the First Nation made a concession by having the Services Agreement released to the public. The First Nation wanted to keep the document confidential, but the City did not agree with this position, and ultimately made the decision to release it to the public. This goes against the group’s argument that the City fettered in its discretion, she wrote.

Justice Forth also found it “reasonable” for the City to enter into the Services Agreement based on the outlined authority of the provincial government’s Vancouver Charter.

According to her judgement, the City was not required to engage in public consultation in order to meet its procedural fairness obligations, as the Services Agreement is very similar to the types of commercial agreements the municipal government enters into.

“There is no obligation on the City to hear from interested citizens when the City is exercising its business powers,” wrote Forth, while citing precedents.

Construction on Senakw began in Fall 2022, starting with the first phase on the west side of the bridge. Each of Senakw’s four phases will generate roughly 1,500 rental homes, with the first phase expected to reach completion in 2025/2026. This past summer, the First Nation announced they would adopt the provincial government’s residential tenancy protections for its housing projects.

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