New Musqueam claim, Post 3

25. From on or about March 19, 2008 onwards, the Defendant assumed and exercised responsibility and control, to the exclusion of the Plaintiffs, with respect to the Application.

26. The Plaintiffs were vulnerable to the unilateral actions of the Defendant and unable to protect their own interest with respect to the Application.

Those quotes state important premises in the Musqueam Indian Band’s statement of claim against the City of Richmond. This post for advanced-level readers builds on “New Musqueam claim” posts 1 and 2. I question those premises.

A bit of post 2 review: I quoted Joe Erceg (the “Manager of Planning” in the Band claim) telling council that the city’s Garden City Lands partners (the Band and Canada Lands Company CLC) participated in selecting supposed agricultural benefits to propose to the Agricultural Land Commission to perhaps give the ALR-exclusion application a better chance to succeed. And I quoted Coun. Derek Dang showing that Richmond council had been kept in the dark about the proposals. So the Band had actually been included while the city’s legislators had been excluded.

There’s more to it than that. It was obvious the Band were included at the key council meeting of December 8, 2008, since there were many Band and CLC people. Moreover, the agenda package for council consisted largely of input from the Band and CLC—directly from the Band chief, a CLC vice president, and CLC-employed application project manager Randy Fasan as a CLC-Musqueam Joint Venture spokesperson, as well as on Musqueam-CLC behalf from three lawyers, including Maria Morellato (author of the new Musqueam claim). Band lawyer Jim Reynolds also addressed council. All of that was related to discussion at the Garden City Lands ALR-exclusion application at a November 17, 2008, meeting of Richmond council. It seems evident, then, that the Band and CLC were in the loop and active in the application process in November and December 2008, which is long after March 19, 2008, the date on which the statement of claim says the Band was excluded.

Furthermore again, I will show in the rest of this post that the Band had access to the ALR-exclusion application process through CLC in two roles until the Agricultural Land Commission rejected the application in February 2009.

It was clear from the beginning that CLC was responsible for the ALR-exclusion project management role, as shown, for instance, in the CLC-Musqueam-City open house display boards prepared by National Public Relations. The first states:

On December 17, 2007, Richmond City Council agreed to sponsor a “Block Application” to the Agricultural Land Commission (ALC) to remove the Garden City Lands from the Agricultural Land Reserve (ALR) on behalf of the three partners. Canada Lands Company is acting as project manager for the application.

In summary, the partners’ display board says:

  • There were three partners in the application.
  • The city was sponsoring the application.
  • CLC was project managing the application.

The CLC-Musqueam joint venture agreement goes further:

Without duplicating any obligations of the Project Manager, CLC will, in its capacity as trustee hereunder, keep the Joint Venturers fully informed, as may be reasonable in any relevant circumstances, of any dealings or proposed actions of CLC, in its capacity as trustee. (PDF page 5, paragraph 3.1d)

If anything was happening that would significantly affect the value of the property, then one would think CLC had a duty to inform and involve the Musqueam as the Band’s trustee in their joint venture agreement even if it did not feel obliged to do so as project manager in the ALR exclusion (in keeping with its role indicated in the basic memorandum of understanding, the MOU.

We should be clear here that CLC was project manager for the application as a process and not just as a document. The intended deliverable was ALR exclusion, not just the four-page completed application form (submitted by the City of Richmond “in partnership with the Musqueam Indian Band and Canada Lands Company”). That is especially obvious in the leaked memo in which the CLC’s Randy Fasan tells staff how to illuminate council members, with a cc list that includes Musqueam, CLC people, lawyers, and National Public Relations people. Besides showing that CLC saw its role as project managing a process, that memo shows that CLC gave itself very, very broad scope in that process-managing role.

Since CLC’s role of managing the application process didn’t end until the commission ended the application in February 2009, then it would seem that either (a) the Band remained fully informed through CLC or (b) CLC was lacking as project manager and/or joint venture trustee. In either case, it’s hard to see why Richmond is being sued for it.

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