Renegotiation — the basics

This topic was addressed in an earlier post, but this post is a current replacement.

The “Spotlighting Renegotiation Provisions” post and other blog posts and letters to Richmond newspapers have referred to sections of the basic Garden City Lands agreement, the memorandum of understanding (MOU). This post provides (a) key MOU excerpts related to renegotiation, mediation, and restoration and (b) supporting notes.

Red colouring has been added to key content for emphasis.

Step 1: Renegotiation

Section 1(22):
In the event that the City does not [meet certain conditions that it now cannot meet]:

Musqueam, CLC and the City will meet to discuss the renegotiation of any understandings, arrangements or agreements between them with respect to the Garden City Property in order to give effect to the spirit of this MOU, to the extent possible, in the changed circumstances. If Musqueam and CLC are not satisfied with the outcome of the negotiations, Musqueam and CLC will have the option of termination this MOU and, as appropriate the JVA [a joint venture agreement between between Musqueam and CLC]. However, before any of the understandings in this MOU may be terminated, the parties will utilize the dispute resolution process described below.


Step 2: Dispute resolution

Section 2(1):
If a dispute arises between any of the Parties with respect to the interpretation of this MOU, or in giving effect to the understandings that have been reached, the Parties will, as soon as practicable, meet to attempt to resolve the dispute. If the Parties are unable to resolve the dispute themselves, they may seek the assistance of Bob Plecas to mediate in which case the costs of mediation will be shared equally by the Parties participating in the mediation.


Step 3: Restoration of the parties to their original positions

Section 1(22), quoted under “Renegotiation,” continues as follows:

If any understandings in this MOU are terminated, all costs incurred to that stage of the process will be equitably shared by the Parties where applicable, and in accordance with Attachment 1, and the Parties will cooperate in making whatever arrangements are necessary to restore each Party to the position that it was in prior to entering into this MOU.


Development Lands First Offer

Section 1(19): The City will have a right of first offer in the event that Musqueam and CLC decide not to implement its plans of land development, but instead to sell any of the Joint Venture Lands prior to servicing, or the Musqueam decides not to implement its plans of land development, but instead to sell any of the Musqueam Lands prior to servicing.

Notes:

1. In section B of the preamble, the “Parties” are identified as the Musqueam, the City, CLC and DFO. (DFO stands for Department of Fisheries and Oceans—essentially the federal government.) The federal government is not involved in the initial renegotiations (unless, presumably, requested to be). However, it is “the Parties” (defined by the MOU to include the federal government) who are involved in cooperating to restore each Party to the position that it was in prior to entering into the MOU. At that time, the federal government was in the position of holding the property as Crown land.

2. It is implicitly all four Parties that will cooperate in restoring each of the Parties to its original position prior to any understandings in the MOU being terminated, but only three parties need to be involved in the initial renegotiation. They are the City, CLC, and the Musqueam.

3. It has been suggested that the Garden City Lands property could not be restored to federal government ownership because federal procedures require it to go through a Treasury Board process. It has been well known for a long time that the bureaucratic hurdle exists, but the government and CLC should be able to deal with it together in order to meet an obligation. This makes me think of a well-known saying of Google co-founder Larry Page, a 35-year-old multi-billionaire who advocates “a healthy disrespect for the impossible.” Citizens have successfully put that into practice on the Garden City Lands issue, and surely we can expect our politicians to at least show a healthy disrespect for the slightly inconvenient. And, for sure, MP John Cummins will.

4. The parties may seek the mediation assistance of Bob Plecas. If they decide to seek mediation, they can choose someone other than Bob Plecas. That individual, who was a BC deputy minister under Social Credit and New Democrat governments, is too closely associated with the initial botched pre-MOU Gardne City Lands negotiations for my liking. He led the pre-MOU discussions between the four parties that led to the City going from a position of strength to a much weaker position (although not as weak as the position as the one they ended up in under the later purchase agreement, which has become null and void). In human resource selection, there is a rule of thumb that “past performance is the best predictor of future performance.”

5. A while ago, there was a suggestion of making an offer to just the Musqueam. Maybe I’m missing something, but I don’t understand the thinking. At most, the Musqueam only own a 50% beneficial interest in the property, and we are not sure whether they still have that since they and CLC have kept their joint venture agreement hidden. What is definite is that the federal government entrusted CLC with the title for specificied purposes and also that the City’s “No Development Covenant” is registered on it (assuming that the City took the agreed-upon step and has not foolishly removed the covenant). The City is evidently interested in obtaining the title, which CLC holds but would only sell with the Musqueam’s approval. To achieve that end, the City should scrupulously follow the provisions of section 1(22), as well as 1(23) and 2(1) if need be, and that means renegotiating with both CLC and the Musqueam.

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