Spearheaded by councillor Bill Bestwick and city manager Tracy Samra, the controversial project has become a point of contention in increasingly strained relations between the city and the Snuneymuxw First Nation (SFN).
SFN Acting Chief Douglas White III told News Nanaimo that an archeological report in 2015 “locates some of our longhouses right through the middle of (the site).” Under SFN’s 1854 treaty with the Crown, the Snuneymuxw village is recognized and protected.
City ignores SFN consent requirement
Mr. White said the city needs SFN’s consent to legally move ahead with the project on the site, a position buttressed by the landmark Tsilhqot’in Nation Supreme Court of Canada decision in 2014.
“As with all proposals in areas that are of such central significance to Snuneymuxw … consent is required,” said Mr. White, who is a lawyer and director of the Centre for Pre-Confederation Treaties and Reconciliation at Vancouver Island University.
However, the city has taken a surprisingly combative stance. It claims that it owns fee simple title to the 27-acre property at 1 Port Drive and has no legal obligation to consult with SFN, but is doing so voluntarily.
At a council meeting on Wednesday, Ms.Samra said “engagement is important regardless of the legal obligation” but she stopped far short of recognizing that the city needs SFN’s consent to move ahead.
After listing all the meetings that have taken place over the past year between city officials, its consultants and SFN, she added: “The city has demonstrated openness, transparency and a willingness to engage.”
Interestingly, the city has not released any archeological studies on the proposed construction site, which it bought from Canadian Pacific rail in December 2012 for $3.4 million.
However, during Wednesday’s council meeting councillor Jerry Hong revealed that councillors have seen Snuneymuxw maps of the site.
Last November, SFN members ratified a $49 million settlement related to the wrongful taking in the 1880s of a 79-acre Indian Reserve that used to be located along Stewart Avenue in Nanaimo across from Newcastle Island.
Pressured by WHL, city pushes on
SFN and the city representatives last met to discuss the proposed arena site in December. That was when it was one of two shortlisted sites.
Sources say little progress was made at the earlier meetings, with SFN firmly opposed to the waterfront site being used for the multiplex.
Despite the lack of agreement from SFN, the city this week decided to select 1 Port Drive as its choice and called a referendum for March 11 to authorize the city to borrow up to $80 million for construction.
The city’s decision to move ahead without SFN’s agreement creates legal doubt for the project. But sources say the city is under pressure of a deadline set by executives at the Western Hockey League (WHL) in Calgary.
League bosses have given city council until the end of March to decide if the city wants the Kootenay Ice of Cranbrook to relocate here. In December, WHL officials inspected and approved Frank Crane Arena as an interim home for the team for two years during construction.
But the city’s rush to move ahead and denial that it needs SFN’s consent has strained already fragile relations. So far this month, two efforts to arrange council-to-council talks have been cancelled, the most recent today.
With the two sides far apart, the proposed multiplex may become an obstacle to efforts by both sides to create a new framework agreement for reconciliation that reflects the Tsilhqot’in Nation decision.
The current challenges take place against a backdrop of tensions between city and SFN councillors that have been simmering for months.
Last March, Mr. White accused the city’s mayor Bill McKay of being disrespectful when he left an SFN inauguration ceremony early. The mayor said the incident was a misunderstanding and apologized.
However, the city council subsequently removed Mr. McKay from three external committees that include SFN.
But tensions have persisted with the most recent incident occurring in December when a city councillor, believed to be Jim Kipp, reportedly told SFN representatives that the city did not need to consult the First Nation.
Said Mr. White: “I once again, as I have consistently for many years now, made clear that in the context of the Treaty of 1854, the city, and everyone living within it, owes a duty to respect the Treaty.”
Ironically, councillors and staff are now talking about removing Mr. Kipp and asking the mayor to rejoin the committees.