Musqueam Band Strategy 201: The Affidavit

Can the Musqueam interest in the Garden City Lands be contested?

The question arrived by email. I can’t offer a legal opinion, but the question brings up illuminating legal history I can share. It could make a difference.


Background:

In 2003, the federal government tried to transfer the Garden City Lands to Canada Lands Company CLC Limited (the federal land disposer), mainly for the benefit of Richmond. The Musqueam Indian Band hindered the transfer by getting an “interlocutory injunction,” a court order to stop the transfer until the government had paid more attention to the obligation to negotiate and accommodate that the Band said was required. The government had tried to act too fast, and it had to either go through the proper process or hold onto the property. The government’s next action was stunning: the March 2005 MOU that promised the Musqueam a 50% beneficial interest in the property. Even the auditor general questioned that (in her November 2006 report) because it didn’t further the treaty process. However, I see nothing there to contest in court.


History:

The more relevant aspect is in the way the Band got the injunction. Its evidence was an affidavit from Chief Ernest Campbell that is cited in the court decision:

The availability of land within our claim area is of vital importance to us. Again, I must repeat that land is crucial to the survival of Musqueam as a distinct people. The payment of a cash settlement is simply not sufficient to wholly replace the loss of our land. Musqueam reserve lands are small and are almost entirely developed. We will need additional land to provide for our people today and into the future. Our current land base is wholly inadequate.
(Affidavit paragraph 25, decision paragraph 43)

After pointing out the shortcoming that there had been no cross-examination, the court decision stated this:

However, what can be discerned is that the Band claims not only an interest in the land, but that the land has unique importance to it. That claim is supported by affidavit evidence. (decision paragraph 16)

On that basis, the court evidently concluded that transferring the property from the federal government prior to a more thorough process would cause irreparable harm, seemingly because development of the land might quickly occur in a way that could not be undone if a later judicial review were to lead to the Musqueam gaining rights to the property. The court stated:

While money can be paid as compensation for anything, including loss of life, the mere fact that compensation can be ordered does not resolve the issue. The Court must consider the true nature of what may be lost. (decision paragraph 42)

The Canada respondents and Canada Lands may not be able to restore the situation to its pre-transfer status. Rectification is not an assured remedy. (decision paragraph 45)

Now let’s fast-forward to the April 2008 Garden City Lands application to the Agricultural Land Commission. The Musqueam statement of community need, Appendix 4B, is nine pages long, but it can be expressed in one word: money. The ALR exclusion and subsequent Richmond rezoning would enable the Band to make large profits from its beneficial interest and use it for Band projects.

There’s a crucial point in that:

The Band’s actual use of the property in 2008 (and thereafter) appears to contradict its evidence that led to the interlocutory injunction in 2004. The Band had shown that the Garden City Lands had unique importance to the Band that could not be compensated with money. On the basis of the future action, it appears that the only importance of the property has been as a source of money.


Conclusion:

That speaks volumes.

But I’m not sure how it might be relevant to the City of Richmond’s legal approach in countering the Band’s current effort to obtain even more of our money.

At minimum, though, I see it as one more reason for the whole community to pull together and support the Richmond council, staff, and legal team in a strong and uncompromising response.


Postscript:

In 2008, the Band tried the interlocutory injunction approach with the Sinclair Centre and another federal building in Downtown Vancouver and had brief initial success. The Government of Canada defended better. Canada won.

Note: This post is the third in the Musqueam Band Strategy series.

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