Acting in good faith re ALR-removal process

January 1, 2008, note: This post is outdated in some ways but still provides relevant background information. 

Richmond Council evidently intends to consider:

  1. extending the deadline for removal of the Garden City lands from the Agricultural Land Reserve
  2. once again recommending to the Agricultural Land Commission that the lands be removed

What would be the best course of action for Richmond?

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1. Re extending the deadline for removal from the ALR:

Suggested action: Leave the decision to Canada Lands.

If Canada Lands Company Limited CLC chooses to extend the deadline (to no later than Dec. 31, 2008), it has the right to do so on its own under Section 4.6(a) of the Agreement of Purchase and Sale. Although the City has the same right, it could limit itself to acknowledging receipt of the notice (if any) from Canada Lands.

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2. Re once again recommending that the lands be removed:

Suggested action: Simply act in good faith, no more and no less. 

The City has already acted in good faith by supporting the application, which the commission then rejected. Therefore the City has satisfied the ALR Recommendation Condition, which is its obligation under Section 4.1 of the Agreement of Purchase and Sale. However, in good faith, the City cannot explicitly withdraw (“abandon”) its recommendation. In addition to general expectations of good faith, the requirement is stated in Agreement of Purchase and Sale Section 4.2, Covenants of Covenants of Co-operation.” It commits the City to “commercially-reasonable efforts to expedite and complete the development approval processes described in Section 3.1,” which begin with “recommendation by Richmond City Council to the Agricultural Land Commission of the release of the Lands from the ALR.”

Since it would not be prudent to “abandon” or withdraw the recommendation, an appropriate course of action would have been to urge Canada Lands to submit any further application much sooner, instead of dragging the process on from September 2006 through all of 2007 with no action. Rather than continue to tacitly accept Canada Lands’ inaction, surely the City should act in good faith by immediately urging Canada Lands to proceed without delay if it is ever going to make another application to the commission.

Some people might argue that the Covenants of Co-operation require the City to vehemently put forward contentions of Richmond community need and net benefit to Richmond agriculture. However, those contentions would have to be contrived, perhaps by means of skewed methods like the so-called Richmond Community Survey or the long-rumoured intent to facilitate a large transfer of money to the Richmond Agricultural Advisory Committee to influence them to support ALR removal. The ethics of such behaviour requre no comment, and the obligation to act in good faith cannot include an obligation to act in an unethical way. Furthermore, the citizens of Richmond have the intelligence and integrity to debunk skewed evidence and identify unsuitable conduct.

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What could the City argue to the Agricultural Land Commission?

It’s relevant to note first that the City is now avoiding any mention of the Trade and Exhibition Centre that was going to be built on the Garden City lands, and the purposes we hear now are all either ALR-permitted uses or non-farming uses that the Agricultural Land Commission would typically permit without the land being removed from the ALR. If the City chooses to advocate ALR-removal to the commission, the only evident line of reasoning would be that the mega-density development of 57.5% of the property is necessary so that the City can retain green space on the other 42.5% (minus the eventual space for schools and close to half of the total roadway space).

If that’s the strategy, the simple approach would be to leave that remaining green space in the ALR, not ask that it be removed with the intention that it would later be put back. It would be easy to modify the agreements to allow for only the megadensity-development being removed from the ALR. However, it would be in the interests of Canada Lands and the Musqueam to demand that the City instead ask for the whole of the Garden City lands to be removed, with the City returning some of it to the ALR after taking possession in 2013 (or perhaps a few years later, if ever). Since Canada Lands (directly) and the Musqueam (through a benficial interest) would continue to own the lands until the distant time when the City might take possession, they would naturally prefer to own a property that is outside the ALR, with a resale value that is vastly higher. Furthermore, there are many opportunities for the partners to terminate the agreements with the City, and for them it’s an obviously good business strategy to ensure there will be lucrative non-ALR lands to pursue after a termination.

Suggestion: It’s time the City stopped jumping through hoops for other parties.

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