Court date for Container Port dispute is set for late August.

The one key issue that is always percolating under the surface locally, is about to jump back to the front pages. The dispute over the Container Port project, between the Coast Tsmishian including Lax Kw’alaams and Metlakatla Nations and the Federal Government, will go prime time in August.

The Federal Court of Canada will hear arguments on the dispute in late August, as the First Nations put forward their argument that the Federal Government failed to consult the Coast Tsmishian before allowing construction of the Fairview Container Terminal and that they continue to fail in their obligations.

It has been a controversial development from the moment that the First Nations began to make their concerns and plans known to the local community. It continues to be a lightning rod of debate over the project and the latest development should ensure that the dispute and the project stay on the front burner around the community through until the court date in August.

The Daily News had the details on the decision today and the feedback from members of the Coast Tsmishian, including some stark comments about the project, comments that will certainly have people talking over the next two months and perhaps beyond….

The story is provided in podunkicized form below.

FEDERAL COURT DATE SET FOR FAIRVIEW DISPUTE
By Leanne Ritchie
The Daily News
Thursday, June 29, 2006
Pages One and Three

A date has been set for the federal court to hear arguments over the construction of the Fairview Container Terminal.

In late August, the Federal Court of Canada will hear arguments that the government failed to consult with the Coast Tsimshian before allowing construction of the Fairview Container Terminal and continues to fail in its obligations.

The Coast Tsimshian – including Lax Kw’alaams and Metlakatla – have been waiting months for a date in their case against the Federal Crown and Transport Canada.

“The federal Crown refused to consult about the aboriginal title held by First Nations on the basis they had already built the previous terminal,” said Greg McDade, of Ratcliff Co., legal counsel for Lax Kw’alaams and Metlakatla.

The original Fairview Terminal was in the1960’s.

However the Coast Tsimshian not only argue their title was not diminished by the previous construction, but that there is also the issue of where Aboriginal title ends – does it end in the foreshore or go out into the water.

Meanwhile, earlier this month, the two bands won a preliminary decision in their second case against Western Economic Diversification and the Prince Rupert Port Authority.

In this case the Coast Tsimshian argue the federal government granted $30 million in funds prior to consultation and accommodation, a violation of prior directives of the Supreme Court of Canada.

But before the case could proceed, the federal government insisted the Coast Tsimshian return a memo they had obtained. The memo was one that was sent out to the federal cabinet prior to the announcement of the $30 million.

In early June, Mr. Justice Barnes dismissed Canada’s motion that argued the information in the document was protected under Cabinet Confidence.

The decision of the Federal Court now clears the way for a full hearing regarding a decision to fund the project.

“We’re pleased that the Courts have now ruled in our favour. Despite our court cases, the federal government and the Port have continued to ignore our rights,” said Garry Reece, chief councilor of Lax Kw’alaams.

“We know this development is important to Prince Rupert, but we will continue to do what we have to do to be recognized and treated fairly.”

“It is time for the government to acknowledge our rights and return to the negotiating table with a new approach,” said Harold Leighton, chief councilor for Metlakatla.

McDade said that although the decision was preliminary, it sets a significant legal precedent regarding cabinet documents.

“The court decided in this case the cabinet document should be produced,” he said.

In this case the federal government is trying to argue the funding decision was tentative and still is, despite the fact “cabinet had a memo in front of them,” he said.

“The port and the Crown have been saying there’s not merit to these court cases but they didn’t succeed in their first battle,” said McDade.

This case is expected to be heard in the fall, after the other case.

Both court cases request injunctions against further port construction until the issues are resolved.

However, they represent what the two bands describe as only the tip of the iceberg in their actions against the terminal.

“With respect to the port development, the nine tribes of Lax Kw’alaams and the Coast Tsimshian are really angry and will do everything they can to stop this port project,” said Wayne Drury, Coast Tsimshian.

“They are not going to be sitting back and waiting for the courts to make a decision.

“There’s absolutely no respect for the rights and title of the Coast Tsimshian – Lax Kw’alaams and Metlakatla.

“There’s no respect for history, no respect for the present and no respect for the future.”

McDade confirmed there’s a whole year of construction in which they will exercise their rights

”If this thing isn’t worked out in the next six to 12 months, there’s a question of whether the First Nations will even allow this port to operate,” he said.

He added the Coast Tsimshian have a good case to title over the whole harbour.

“It’s irresponsible to proceed with construction without resolving this,” he said.