Perhaps they made a little “boo-boo”

Well I’m not a lawyer, but somehow I get the feeling that if you admit to the Supreme Court that you may have overlooked something in your situation, then oopsie, it’s probably not going to end in your favour.

That being said both the Federal Government and the Coast Tsimshian have appeared in front of the Supreme Court pleading their respective cases over the Fairview Container Port project, and if the Daily News is correct with its coverage, it seems to have been a pretty good day for the Coast Tsimshian.

Wayne Drury, the business development manager for Lax Kw’alaams claims that in Tuesday’s proceedings the lawyer for Transport Canada acknowledged that clearly the Crown made an error. The Daily doesn’t actually gather those words from a Government official, so third party confirmation is missing on the interpretation. But if taken at face value, then it would pose a slight problem one would think for the government side of the ongoing debate.

The impression from the various articles of late, is that the one day of appearance is all that the issue will receive at the Supreme Court, with a judgment to follow shortly. Still to come is a second case in front of the Supreme Court, one which has yet to be scheduled. It will detail the Coast Tsimshian's belief that the Ministry of Western Diversification is in violation of the Environmental Assessment act, by incorrectly advancing 30 million dollars in funding without a proper evnvironmental assessment.

With their first appearance behind them, the Coast Tsimshian stated that at the moment they would prefer having a statutory declaration instead of a declaration and an injunction. That would probably result in the government returning to consult and accommodate the Coast Tsimshian. If an injunction was put in place, it could very well result in a stoppage of work on the giant waterfront project.

If things proceed on to that second hearing and your Transport Canada, you probably are hoping you have your ducks a little better lined up for the next appearance. Taking a hard line in your approach, generally works when you have something to back it up. Suggesting that you were wrong or made a mistake is not quite the thing of an iron clad case.

The Daily News had its full coverage of the developments on its front page.

GOVERNMENT CONCILIATORY DURING PORT COURT DATE
By Leanne Ritchie
The Daily News
Wednesday, August 23, 2006
Page One

The federal government reportedly admitted it had made a “boo-boo” in its consultations with Coast Tsimshian about the development of the Fairview Container Terminal in federal court yesterday.

Wayne Drury, business development manager for Lax Kw’alaams, said the lawyer for Transport Canada acknowledged that clearly the Crown made an error.

“Those were their words.

They made a ‘boo-boo’ with respect to the question of the land. So we are hoping that the courts will issue a statutory declaration that will bind the honour of the Crown to come back and consult with the Coast Tsimshian.”

While the original application by Metlakatla and Lax Kw’ alaams had sought an injunction against construction, Drury said that they simply hope at this point that the courts will order the government back to the table.

“We took a very honourable position in court yesterday by suggesting at this time we would rather have a statutory declaration rather than a statutory declaration and an injunction,” he said.

The Coast Tsimshian and federal government were in court in regards to the first of two court cases the bands have launched in regards to consultation and accommodation on the container terminal.

It took 10 months for the first case to get a hearing and the second has yet to be scheduled.

In this case, the bands were arguing that the government was wrong in its position that it only has to consult with the two bands on the .72 hectare portion of the terminal which will be new construction.

Government was arguing it did not have to consult on the existing terminal, which was built in the 1960’s. The Coast Tsimshian say this position has a huge and significantly negative impact upon the ability to hold meaningful consultations.

Yesterday, despite government’s admission they made a mistake, the government still argued that there has been adequate consultation.

However, the Coast Tsimshian strongly disagree.

They say the basis for the original Haida vs. Weyerhaeuser decision is that there must be agreement of the strength and breadth of aboriginal rights and title claims prior to the commencement of consultations.

By admitting their “Boo-Boo”, the federal government is admitting that there was no agreement of basis for undertaking negotiations as established in law, explained Drury.

“We are hoping the Crown will come back and deal with this honourably.

“But the bottom line is we are bound and determined that if we don not have an adequate consultation and accommodation that this project will not go ahead, but we are hoping we don’t have to go there,” said Drury.

“We have to stand up for what is right.”

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.

Construction has been underway since last year.

Phase one is scheduled to provide the terminal with capacity to handle 500,000 containers annually. The second phase would increase the capacity to two million containers by 2009.