A most anticipated decision

Legal counsel for Lax Kw’alaams and Metlakatla began their day in court on Tuesday, as the arguments over the Fairview Terminal project got under way in Ottawa. The court case stems from the belief by the Coast Tsmishian nations that the federal government was required to fully consult and accommodate them over the development of the container port project, a process that they say did not happen in a proper and timely manner.

The possibility of legal action first became public back in January and since then has been the proverbial elephant in the room. It is an issue that has been bubbling under the surface around town for a number of months now, occasionally flaring into heated debate and then retiring to the shadows biding its time.

As of yesterday it would seem it’s time had come, the Daily News had the full story on day one of the process provided below.

You have to hope that the Court moves quickly on this, the uncertainty and divisiveness of it all does not make for the best of climates around the city.

COAST BANDS IN COURT TODAY OVER NEW PORT
By Leanne Ritchie
The Daily News
Tuesday, August 22, 2006
Page One

The Coast Tsmishian are in federal court today arguing that the government failed to fully consult and accommodate them regarding the conversion of Fairview Terminal into a container port.

Greg McDade of Ratcliff and Company, legal counsel for Lax Kw’alaams and Metlakatla, said the hearing for the first of two legal challenges should take all day.

“This is a case about whether the position about Lax Kw’alaams title is right,” he said.

The Coast Tsmishian have two cases, each of which seeks an injunction over terminal construction that has been underway since last November.

The case being heard today was the second case brought to the court and McDade described it as fairly straight forward.

“The other case involving the funding and the environmental assessment is still to be booked,” he said.

According to the application filed in Canadian Federal Court by the Coast Tsmishian, government’s position is that it only has to consult with the two bands about the .72 hectare portion of the terminal that will be new construction. It argues it does not have to consult about the existing terminal, which was built in the 1960’s.

In their application, the two bans say the site, which is being converted to handle 500,000 containers per year, lies over the top of “several important sites which were permanent winter villages, campsites and traditional use sites.”

However, Transport Canada argues Metlakatla surrendered its rights in 1906, and Lax Kw’alaams under a Settlement Agreement in 2003.

“Accordingly, it is our view that the legal obligations of the Crown to consult do not extend to asserted claims of title, interests or rights as against the Land Component,” wrote a Transport Canada official back in October 2005.

The Coast Tsmishian argue they should not only be consulted on the whole footprint but also on the impacts of the new terminal on the surrounding area and say that they never surrendered their title.

McDade said he expects a ruling in the near future.

“Federal courts tend to be quicker than provincial Supreme Courts. Sometimes, they issue judgments right from the bench. It’s a possibility,” he said.

The federal Department of Justice could not be reached for comment on the case.

The second case before the Federal Court, which has yet to be scheduled, argues that the Minister of Western Economic Diversification is in violation of the Environmental Assessment Act by granting $30 million in funding to the Prince Rupert Port Authority before completing the environmental assessment.

In addition to seeking an injunction against construction, this case seeks to have the court order a comprehensive environmental assessment.

The port only had to complete a less comprehensive screening assessment for Phase One of the project because it was conversion with no new construction.

An agreement has been presented to the First Nations by the government and is understood to include employment opportunities, financial support for jobs and skills training, the creation of an Aboriginal employment coordinator to help band members realize these opportunities, and “significant funding” for Aboriginal businesses that would benefit from the port expansion.

It was announced in April 2005 that the federal government would contribute $30 million, the province #30 million, CN Rail $30 million, Maher Terminals (one of the East Coast’s premier container terminal operators) $60 million and the port $20 million to build phase one of the container terminal.

The second phase would increase the capacity from 500,000 to two million containers by 2009.