Spotlighting negotiation provisions

In the saga of the Garden City Lands agreements, there has been a welcome about-face by both Canada Lands Company CLC and the Musqueam Indian Band, as is evident in the recent comments from Band lawyer Jim Reynolds. Previously, their threats avoided all mention of the memorandum of understanding (MOU) provisions for renegotiation. Now, when their other threats haven’t worked, they realize that they will need those provisions. Their threats have become an extreme position as a starting point for renegotiation under the MOU, but it is a positive step that they are recognizing that they should engage in the process.

It is also good to see that the CLC lawyer’s so-called “’plain English’ summary” of the agreements specifically cites sections 1(22) and 1(23) of the MOU. (It appears on pages 42–44 of the Dec. 5, 2008 staff report.) Ideally, it would also cite section 2(1), which is related to mediation, but there is a reference to it in the other sections.

Naturally, the CLC lawyer focuses on implications that favour the lawyer’s client. He downplays the implications of giving effect to the spirit of the MOU “to the extent possible in the changed circumstances,” which eliminates the CLC-Musqueam rezoning profits but does not eliminate the City of Richmond’s intended uses. He also skips the mediation requirement.

Most important, his “plain English” is very selective about the final requirement that “the Parties co-operate in making whatever arrangements are necessary to restore each Party to the position that it was in prior to entering into this MOU.” He doesn’t mention that the federal government (specifically the Department of Fisheries and Oceans, since it represented the federal government in the MOU) is one of four MOU parties and that its original position was that it owned the lands.

Somehow, the people need to get the City and federal government to be insistent that the full provisions for (a) renegotiation, (b) mediation, and (c) restoration to each party’s position prior to the MOU be acted upon and that there be due emphasis on achieving the spirit of the MOU to the extent possible in the changed circumstances.

Finally, since the CLC lawyer wants to try to somehow re-create the expiring purchase agreement to the extent possible, we somehow need to get the City and federal government to recognize how that benefits the City, since (for one thing) the City’s right of first offer was upgraded to a right of first refusal in the purchase agreement.  The spirit of the agreements is that the CLC-Musqueam will offer the lands to the City if they decide not to implement their development plans. (And that is also pretty close to the letter of the MOU.) While there is no price suggested for an offer, a fair market value of $9.54 million is stated for CLC’s purchase of the whole lands, and (in the spirit of the agreements) what’s fair for CLC should be fair for the City.

At the risk of becoming repetitive, I suggest that Save Garden City supporters need to keep emphasizing some of these points every time the Musqueam and CLC try to skip around them.

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