Presumption + One-Sided Good Faith

Parties to the Garden City Lands agreements, evidently presuming that the  Agricultural Land Commission will do their will, presume that the Lands will be taken out of the Agricultural Land Reserve. That is not a reasonable presumption, and certainly the citizens of Richmond are not obligated to bow to it.

Yet, when residents want to keep the lands as a large open green space in the ALR, some representatives of the parties call that “tearing up the agreements.” On the contrary, tearing-up has been proposed only by parties that say they would scrap the agreements if the commission again rejects the application. Certainly another rejection would stop some conditions of the Garden City Lands agreements from being met, but it should not end the agreements.

The initial Garden City Lands agreement, known as the MOU, lays out the resolution process, which is perhaps overly simple because it anticipates goodwill and good faith. The follow-up agreement, the agreement of purchase and sale, explicitly states that the related sections “will continue to be binding on the parties to the MOU.” The process that the parties agreed to be binding on them involves:

(1) negotiation

(2) mediation by Bob Plecas

(3) termination

If the first two stages result in the lands being offered for purchase in a new way during the life of the agreements, the City’s right of first refusal should enable the City to purchase the Lands. There should be no further need to consult and accommodate the Musqueam Indian Band, since they signed the agreement that includes the City’s right of first refusal. If the parties cannot reach agreement, then—in the termination stage—“the Parties will cooperate in making whatever arrangements are necessary to restore each Party to the position it was in prior to entering into this MOU.” That would be awkward to accomplish, but all parties have the self-imposed obligation to act in goodwill and good faith to restore the Garden City Lands to the federal government.

Despite the assurances of good faith in the agreements, there have been threats of jumping to litigation instead of negotiation. That would complicate matters, and it is essential for Richmond to immediately obtain excellent legal representation and also ensure stalwart support from the federal government. It’s sad to have to say this, but we must be prepared to be double-crossed. We hope we won’t be, but we may be. As wise people learned long ago, forewarned is forearmed.

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