Regional District of Okanagan-Similkameen

Attention: Karla Kozakevich, Chair

Re: Serious and Urgent Concerns regarding Industrial Zone Update Amendment Bylaw No. 2783, 2018 and
Immediate Need for Enhanced Engagement with Osoyoos Indian Band

I write to express my serious and urgent concerns regarding the engagement process that the Regional District of Okanagan-Similkameen (“RDOS”) has been undertaking with the Osoyoos Indian Band (“OIB”), and in particular the lack of sufficient engagement on proposed land use bylaws that have significant potential impacts to our Territory and our constitutionally-protected and unextinguished Aboriginal Title and Rights.
In view of the above, I write today to request the RDOS: 1) repeal Amendment Bylaw No. 2783; 2)refrain from issuing any development permits for the new uses incorporated by the amendments; 3) contact us immediately to plan for a Joint Council Meeting on this issue.

OIB Title and Rights

Our Territory is expansive and includes the South Okanagan region, over which we hold constitutionally protected and unextinguished Aboriginal Title and Rights. The land and resources within our Territory have considerable cultural and heritage significance to OIB and our members, and include important archaeological resources, cultural and spiritual use areas that are documented in our oral history and captikwl, hunting locations and gathering sites. What’s more, our historic Dog Lake Indian Reserve #2 encompassed significant portions of present day Okanagan Falls.

Government-to-Government Engagement

Guided by our laws, customs and traditions, and informed by our constitutionally protected Aboriginal Title and Rights, we, together with the Okanagan Nation, take an active role in seeking to protect the land and resources within our Territory for our current generation, our neighbours, and those generations to come. In doing so, we seek to engage on a Government-to-Government (“G2G”) basis with other governments, such as the RDOS, on proposed land and resource uses within our Territory, as well as land and resource laws, bylaws and policies that may impact our Aboriginal Title and Rights.
Over the past months, we have received a significant number of referrals from the RDOS, and we understand that there are a number of other major referrals to come. We appreciate that RDOS is seeking our input on these matters, but also wish to establish a more meaningful G2G working relationship with RDOS before proposed projects and amendments to zoning and other land use bylaws are sent to us in the form of referrals.
Notably, local zoning and land use bylaws shape the way in which local residents (including OIB members) interact with their surroundings, and decisions thereon have significant implications on their day-to-day lives. Concurrently, it is at the local level that governments have the greatest understanding of the effects of their decision-making on Indigenous peoples, such as OIB. Accordingly, RDOS decisions have real consequences on OIB, our members and our Aboriginal Title and Rights, and a strong G2G relationship between RDOS and OIB is therefore critical to achieving true reconciliation.

Flawed Review Process for Industrial Zone Update Amendment Bylaw No. 2783, 2018

The absence of a formal G2G engagement process between RDOS and OIB has already caused significant problems. For example, the RDOS Board recently approved Industrial Zone Update Amendment Bylaw No. 2783, 2018 (“Amendment Bylaw No. 2783”) which amendments have potential far-reaching impacts on OIB’s Aboriginal Title and Rights, including permitting new industrial activities such as cannabis production that have significant water demands and other potential environmental risks. Our local groundwater aquifers are already experiencing heavy use, and further stresses on these vulnerable water sources must be carefully considered before additional industrial uses with significant water needs are permitted.

We were notified of the proposed Amendment Bylaw No. 2783 on February 20, 2018 by way of the existing referral process. On March 8, in advance of the deadline for comments, we notified RDOS that due to internal capacity constraints we were unable to respond by RDOS’ deadline, but would provide comments within 60 days of that deadline. We never received a response to our letter of March 8, and therefore assumed – based on prior practice where we have only been notified by RDOS when an extension request has not been granted – that we could proceed with providing comments by the extended deadline. This assumption was further
supported by the fact that at a meeting between RDOS and OIB technical staff on March 14, this proposed bylaw was on the agenda but never discussed; accordingly, it was our understanding that there would be a future meeting during which OIB could raise its concerns regarding the proposed bylaw with RDOS.

RDOS, however, proceeded to approve Amendment Bylaw No. 2783 on April 19.

As OIB was operating on the assumption that the extension was in place, we had not yet provided comments on the proposed bylaw. As such, RDOS ultimately made its decision without having considered the impacts of the corresponding zoning amendments on our Aboriginal Title and Rights, even when it was abundantly clear – by way of our extension request and inclusion of the topic on the March 14 meeting agenda – that this was a matter that we wished and intended to engage with RDOS on before any decision was made.

You may recall that we signed a Protocol Agreement in 2013 with RDOS that recognizes our right to participate in decisions that could impact our rights and strives to establish a G2G relationship to identify, consult, and address common concerns, mutual interests and issues of importance that arise from time to time. However, our recent experience with the referral process, and the adoption of Amendment Bylaw No. 2783 without consideration of the corresponding impacts on our Aboriginal Title and Rights, indicates that the development of a strong G2G relationship between RDOS and OIB has a long way to go.
Other Concerns regarding Amendment Bylaw No. 2783

We are also concerned that the Amendment Bylaw No. 2783 is not consistent with the intent of the Official Community Plan (“OCP”), which plan serves as a policy foundation for the zoning bylaws that the new bylaw amends. For example, the OCP for Electoral Area ‘A’ includes the following broad goals regarding environmental protection and sustainable use of our waters:

• balance economic development with protection of environmental values;
• protect the quantity and quality of ground and surface water resources through positive development decisions based on sustainable use of those resources; and
• ensure that future development is compatible with the physical nature, resources and limitations of the land base and that growth is planned in a manner that ensures protection for the environment.

The OCP for Electoral Area ‘A’ also specifies objectives and goals for industrial uses that focus on permitting smaller industrial developments rather than large ones – these objectives and goals include:
• providing for small scale, light industrial activities servicing the needs of local residents; and
• ensuring that all industrial development is in scale with and appropriate to the character of the rural community and does not adversely affect the natural environment.

Finally, we note that this OCP stresses the importance of working collaboratively with OIB, while ensuring the participation of OIB in decision-making.

As indicated above, the referral process carried out to date has not ensured our participation in decision-making, including the review and approval of Amendment Bylaw No. 2783; concurrently, we are concerned that some of the new industrial uses, including cannabis uses that have considerable water and energy needs along with other environmental risks (including risks to wildlife from facility siting and light pollution), that have been permitted by way of this amendment bylaw do not align with the goals and objectives of the OCP that stress the importance of sound and sustainable management of resources and the protection of environmental values.

Recommended Next Steps

In light of the above, we strongly recommend the following:
1.Repeal Amendment Bylaw No. 2783.
a. At the next RDOS Board meeting, you, as Chair of the RDOS, should reconsider the decision to approve Amendment Bylaw No. 2783 pursuant to your authority under section 217 of the Local Government Act (“LGA”).
b. In the alternative, the RDOS Board should promptly repeal Amendment BylawNo. 2783 for:
i.failure to meaningfully engage with OIB;
ii.failure to adequately consider potential impacts of the amendment bylawon OIB’s Aboriginal Title and Rights; and
iii.failure to ensure that the amendment bylaw aligns with the existing OCPs,
by exercising its authority under section 227 of the LGA and section 137 of the Community Charter (British Columbia).
2.Refrain from issuing any development permits.
a.The RDOS should not issue any development permits for any of the new usesincorporated in the Amendment Bylaw No. 2783, including cannabis uses,without prior meaningful engagement with OIB on each such permit application.
3.Joint Council Meeting.
a.We urgently request a joint council meeting with the RDOS Board in the near future to:
i.discuss the matters outlined in this letter;
ii.begin to develop a more meaningful G2G process, including engagementbefore referrals are sent out;
iii.set the framework to negotiate a land use planning and developmentagreement as contemplated in section 4.5 of the Protocol Agreement; and
iv. begin developing a path forward for sustainable co-management of development activities, including cannabis, within our Territory.

Chief Clarence Louie
Osoyoos Indian Band