Metro loses court appeal over Pacific Spirit park land raid

Cities feared transfer to Musqueam set dangerous precedent

Areas marked in orange have been transferred to the Musqueam Indian Band. The two smaller parcels had been part of Pacific Spirit Regional Park. The provincial government expropriated them without compensation from Metro Vancouver.

Metro Vancouver has lost a court battle against the provincial government over the expropriation of part of Pacific Spirit Regional Park that was handed over to the Musqueam Indian Band in 2008.

Twenty-two hectares of the park in Vancouver near UBC – worth an estimated $200 million – was taken from Metro without compensation and transferred to the Musqueam to settle a lengthy court dispute between the band and the province.

Mayors from Metro’s member cities feared the land raid set a possible precedent for the province to confiscate other regional or civic parks or public lands to satisfy aboriginal demands or to negotiate future treaties.

Metro lawyers had argued the province violated the Local Government Act when it expropriated the park land without adequately notifying or consulting the regional district.

The B.C. Supreme Court previously rejected Metro’s court challenge, finding there is no legal force behind principles contained in the act that require notice and consultation for provincial actions directly affecting regional district interests.

The appeal court upheld the earlier decision, but said it’s “regrettable” the province included the principles in the body of the act, rather than in the unenforceable preamble, if Victoria intended them to be merely aspirational goals without any legal punch.

Madam Justice Mary Newbury said it’s “unfortunate” if regional districts have relied on those principles and “can do little to help develop a positive relationship between the province and regional districts.”

Provincial government officials have said the court challenge was a waste of money because Metro had always been on notice the lands provided to create Pacific Spirit park could eventually be withdrawn to settle unresolved native land claims.

The regional district got title to the former UBC endowment lands in 1989 for $1 with the understanding it might someday be returned to the Musqueam.

The transfer of two per cent of the park to the Musqueam was not to conclude a treaty but rather to settle claims that the province failed to adequately consult the band in the sale of the UBC golf course lands and over the development of the River Rock casino at Bridgeport.

Victoria also paid the band $20.3 million and transferred the 59-hectare golf course from UBC to the Musqueam on condition it be used for golf and not be developed until 2083.

Much of the transferred land is expected to become low-rise condos or other development, while the Musqueam agreed 8.5 hectares would remain public park land.

Metro chief administrative officer Johnny Carline said the appeal cost Metro about $20,000.

The next step is up to the board – which could still opt to appeal the case to the Supreme Court of Canada.

A separate Metro court challenge is still to be heard by B.C. Supreme Court, in which Metro argues the province had no constitutional jurisdiction to expropriate the land.

Carline said it’s still unclear whether more park land could ultimately be bargained away by the province to First Nations.

“At one point we thought it was understood parks weren’t on the table,” Carline said.

“Now it seems provincially owned parkland may be on the table. In the case of Pacific Spirit park, we’re not sure if it’s a straight one-off case because of the specific circumstances or whether it’s a precedent and municipal parks may be on the table.”

Metro lost control of Grant Narrows Regional Park early this year, when the province declined to renew the Crown lease and instead let the Katzie Nation co-manage the 11-hectare site ahead of a possible future treaty settlement.

The Katzie were expected to charge fees for parking and boat launching at the now-renamed Pitt-Addington Recreation Site, which offers access to the Pitt River and Pitt Lake area, as well run canoe rentals and a concession stand.