Purchase agreement soon null and void

It’s almost certain that the Agricultural Land Commission will not decide on the application to exclude the Garden City Lands from the ALR before the December 31, 2008, deadline in the City’s purchase agreement.

The effect is largely similar to the effect if the Council had voted to not apply to the Commission or if the Commission had rejected the application.

It is true that the parties to the agreement could still make an agreement to make the purchase agreement apply to a new period. That is a kind of renegotiation within the MOU, the basic agreement that will remain even if the purchase agreement ends. I’ll discuss that further later.

The sky is falling?

Pave-Garden-City council members, including Mayor Malcolm Brodie, have incessantly warned that Richmond will have no rights if the Lands are not excluded from the ALR. Now, that outcome is imminent.

If their defeatism were warranted, they would now have us in a bigger mess than ever. After the end of this year, we would have no rights to acquire the Lands, but the Agricultural Land Commission could still exclude the Lands from the ALR next year.

I say that good outcomes remain possible. My biggest concern is that the Pave-Garden-City crown that got us into this mess will continue with the philosophy some of them have expressed out loud. Although they realized that they were in a bad deal, they thought that their only course of action was to keep going further into it. They could still renegotiate to go further into it again. That could happen either in the post-election last meeting of the old council or at any time after that if the new council has a Pave-Garden-City majority.

In the rest of this blog post, I’m mostly going to provide a lot of background. I’ll leave it to you, the reader, to think further through the implications if you so wish.

My recent communication with Colin Fry

When I talked with Colin Fry, co-executive director of the Agricultural Land Commission (ALC) just before the weekend, he said this:

The Garden City Lands application is not on the agenda for the next South Coast Panel meeting, which is scheduled for the week of November 17. There is no scheduled panel* meeting that might address the application until the new year. I think it is safe to say the matter will not be put before the Commission in December, given the holidays and all.

*Note: The Agricultural Land Commission’s 6-commissioner Garden City Lands panel consists of the 3-commissioner South Coast panel plus ALC chair Erik Karlsen and two other commissioners—one from the Vancouver Island panel and the other from the Okanagan panel.

What the Garden City Lands agreements say

Essentially the purchase agreement (the agreement by which the City of Richmond would obtain part of the Garden City Lands from Canada Lands Company CLC Limited) will become null and void after December 31, 2008. That is the deadline for meeting the ALR Release Condition, and the property will not have been removed from the ALR by that time. 

 The deadline has already been extended by two years, and it cannot be extended any further under the terms of the purchase agreement. (However, the renegotiation process provided for in the MOU can lead to a new agreement, which in this case can be a simple one that applies the existing purchase agreement to a new period of time.) 

There are going to be all sorts of people making political statements about the effect. I’ll mention two possibilities, along with my response to each.

Withdraw the ALR-exclusion application?

Some people may think that Richmond council should withdraw the application. However, doing so at this time could comprise acting in bad faith.

Under the purchase agreement and a related agreement extending the deadline for “ALR release,” the purchase agreement is currently still in effect, since the “ALR Release Condition” only leads to the agreement becoming “null and void” if that condition is not met by December 31, 2008, a deadline that cannot be extended within the purchase agreement.

Even when that deadline isn’t met, that leads to the end of only one of the two Garden City Lands agreements. The way I read the agreements—and I have studied them—the initial memorandum of understanding (MOU) will still be in effect. In my view, it is in the best interests of every one of the four parties to the MOU to renegotiate within the MOU. However, it may be that not all of them will realize that.

In any case, if any party tears up either agreement, it should not be the City of Richmond. Beyond the good faith aspect, staying within the agreements continues the great goodwill that the City has shown toward the other parties, especially Canada Lands Company CLC and the Musqueam Indian Band and their joint venture partnership. The City can also benefit from the MOU’s provisions for renegotiation, arbitration, and cooperation by the parties to restore each to its original pre-MOU position (MOU 1.22, 1.23, and 2.1). There are legalistic ways for parties to avoid following that renegotiation process, but following it is the goodwill thing to do, and it certainly makes sense for the City to do it.

Even after the purchase agreement expires, the City could still renegotiate under the MOU for a new arrangement (under an additional agreement) that involves letting the ALR-exclusion application continue. On the 2005–2008 council, there are only three Save-Garden-City councillors, and they are always outvoted by the six Pave-Garden-City people on Richmond council. Because of election vote splitting, the 2008-2011 council may have another Pave-Garden-City majority. It is entirely possible that it could renegotiate to an agreement that includes continuing to strive to get the Lands excluded from the ALR.

My initial view is that council should let the application take its course until a clearly better course is backed by a strong legal opinion, which the City should obtain soon, e.g., by the end of November. That would involve a well-expressed question being answered by a lawyer of at least the skill of Keith Clarke. He is the lawyer whom the City’s legal department head, Phyllis Carlyle, brought in to address council and the other people in attendance on the first day of the March 2008 public hearings. (He was incisive on First Nations aspects of the agreements, but unfortunately his comments on some property matters appeared to be on the basis of the Band-CLC version of some key facts, rather than a study of every one of the relevant agreements. Even though there was room for improvement, he showed good potential.)

Demand that the ALC make an immediate decision?

Other people will think that Richmond should try very hard to get the ALC to make an immediate decision.

I would strongly oppose that. A rushed decision would be terrible from the community’s standpoint.

After all, the panel is likely to refuse the application as long as the commissioners have time to study the whole application and the public responses. In brief, I think it is a bloated and weak application, full of repetition, self-contradictions, verbosity, and sometimes pages on end that amount to nothing.

The responses to the CLC, in contrast, are an overwhelming expression of the public’s perception of community need, and a number of the responses (Harold Steves’, Adrian Wade’s, my own, and the Garden City Lands Coalition’s, among others) are well informed and carefully reasoned. Naturally I don’t have a panel vote, but my opinion is that they thoroughly refute the application.

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