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Judge dismisses case against Nanaimo school district over south-end facilities plan

A B.C. Supreme Court judge has thrown out a case that claimed the Nanaimo school district failed to properly consult with Snuneymuxw First Nation prior to closing schools in the city’s south end.

The judicial review,  launched by Snuneymuxw and led by former chief Doug White, claimed that the school district failed to give the First Nation an opportunity for input into its 10-Year Enhanced Facilities Plan, made public in April of last year.

The plan called for a reorganization of the district’s south Nanaimo schools – closing South Wellington and Woodbank elementary schools, and converting Cedar Secondary School into an elementary school.

Snuneymuxw argued that children from minority and low-income backgrounds do poorly in larger schools. Snuneymuxw also argued that its aboriginal and treaty rights required the school district to consult with First Nations, just like the Crown would consult with aboriginal groups on land-use.

In his decision, Judge Hinkson disagreed, writing that school closures had no effect on Snuneymuxw’s aboriginal or treaty rights.

“The respondent is responsible for making the myriad decisions that flow from running the education system for the entire school district. Should it be forced to meet the standard expected of the Crown in consulting with [Snuneymuxw], its ability to effectively carry out its legislative mandate would be impaired to the point of administrative paralysis,” Hinkson wrote.

“It would therefore be inappropriate to rely on the duty to consult to inform my analysis of the respondent’s common law obligations here.”

Hinkson said it would have been preferable for Snuneymuxw to be consulted during drafting of the facilities plan, but with opportunities for consultation after, such as public meetings where Snuneymuxw made its opinions known, the requirements for consultation were adequately fulfilled.

“In my view, these three steps followed a well-publicized effort at public consultation, which included the views of the petitioners, and constituted an adequate opportunity for the petitioners and any other interested persons to respond to the respondent’s proposal to close the schools...” Hinkson wrote.

In a statement, trustee Donna Allen, vice-chairwoman of the school board, said, “The board believed its consultation was thorough and appropriate, given the requirements of the School Act, and we are pleased that the court confirmed this.

“The board will now review the court decision with its legal counsel, and does not plan to comment in any detail at this time.

“As we go forward, the board is committed to continuing to maintain strong, respectful and collaborative relationships with all of its First Nations and aboriginal communities. In particular, we value our partnership with the Snuneymuxw First Nation.”

Snuneymuxw First Nation did not respond to requests for comment by press time.

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