Saturday, September 23, 2006

Unauthorized construction? The port project comes up with the short stick in a court judgment.

The long awaited decision by the Supreme Court on the Fairview Container Project has come in and for the Coast Tsimshian it seems that going to court has been a successful adventure.

The Hon. Justice Konrad von Finckenstein, agreed with the Coast Tsimshian, calling the governments position during the process of consultation “skewed” and “unreasonable”. A judicial comment that has spurred the Coast Tsimshian to call for the construction permits to be pulled, construction on the project halted and the government to do the “honorable thing.”

The Port for its part claims that the Federal government did engage in meaningful consultation and that a generous offer of accommodation was made due to that consultation. For the Port its full speed ahead for the project, with no stoppages planned to address the issue.

With two opposite impressions of the situation at hand, the tipping point of the controversy is surely fast approaching. What the next step will be by the Coast Tsimshian has not been revealed yet, whether they plan on shutting down construction or have some other method of getting their grievances across will be developed over the next little while.

However, with the situation far from clear at the moment, it remains to be seen what the final impact on the project will be. Though one must wonder how the tight timelines in place would be met, if the project was subject to a stop work order or some other form of protest that set the project back in any way.

Another concern is the prospect of a lengthy delay in the project and what the ramifications for contracts signed both for construction, completion and operation of the container port. Rupertites can only really wait and see what happens when the next shoe drops.

The Daily News tried to clear up the muddy water of the issue for its readers and also provided a number of quotes from the main players during the course of the report. With nothing seemingly solved yet, we’re left with many more questions than answers concerning Prince Rupert’s largest construction project in many years.

By Leanne Ritchie
The Daily News
Friday September 22, 2006
Pages One and Seven

The Coast Tsmishian are demanding a halt to the construction of B. C’s newest container terminal following a judgement by the Federal Court of Canada that says government failed to properly follow the process to accommodate First Nations rights.

”The court has now confirmed that the Crown acted unlawfully,” said Gary Reece, chief councilor of Lx Kw’alaams, which alongside the community of Metlakatla, took the federal government to court. We demand that further work on the Port cease immediately until our rights have been met.”

However, the court did not rule on whether the actual $7.65 million accommodation offer that was presented to the two bands back in February was reasonable and the Port of Prince Rupert plans to continue with construction activity.

The Prince Rupert Port Authority, Maher Terminals and CN Rail have partnered to spend close to $200 million to convert Fairview Terminal into a facility which can handle 500,000 containers per year.

Following extensive consultation and negotiations with the Metlakatla and Lax Kw’alaams bands, an offer of accommodation was presented by the federal government on February 28, 2006. The $7.65 million offer of accommodation features employment opportunities, human resource development initiatives, and support for First Nations business ventures associated with the Port development.
Specifically, the proposed agreement includes $4 million to an Aboriginal Employment Training Organization; $3.4 million to an Aboriginal Economic Development Organization; $175,000 to employ a Skills Training Coordinator, and $150,000 for economic development studies and business planning. The Coast Tsimshian have yet to respond to the offer.

However, the bands agree the offer means nothing because the process was skewed.

In their case before Hon. Justice Konrad von Finckenstein this August, the Coast Tsimshian argued the Ministry of Transport should not have authorized construction because that the federal government had failed to adequately consult and accommodate their interests. Government had taken the position that it only needed to consult over the new portion of the terminal, (.72 hectares) that was being built, arguing it did not need to consult over the 22 hectare existing terminal, which was built back in the 1960’s.

In his decision, which was handed down yesterday Justice Finckenstein agreed with the Coast Tsimshian, calling the governments position during the process of consultation “skewed” and “unreasonable”

“I fail to see how the court can find the consultation and the accommodation offered to be reasonable where the process started out on such a misconception and minimization of the Coast Tsimshian’s claim,” he said.

This opens the door for the bands to pursue further legal action that could force the federal government to pull the port’s construction permits.

“Normally you would expect the Crown acting honourably to respond to that (and pull the permits) and it’s not fair for us to assume that they won’t. We have to give them a chance to read (the decision) and a chance to do the honourable thing,” said Greg McDade, Ratcliff and Co., legal counsel for the Coast Tsimshian.

However, Justice Finckenstein added a review of the actual offer that was presented by the government to the Coast Tsimshian was outside the scope of the case and the Justice dismissed the application because of a procedural error. The review of that offer will be presented to the courts in another case being presented to the bands. A date has yet to be set for that court hearing.

In response to the judgement, the Port of Prince Rupert said it plans to continue with construction.

“We look forward to the Crown demonstrating to the Court, at the appropriate time, that meaningful consultation did occur, that the consultation was appropriate, and that indeed a generous offer of accommodation was made as a result of that consultation,” said Don Krusel, Prince Rupert Port Authority President and CEO.

“We remain on track with construction and are confident in the scheduled completion of the project during the Summer of 2007.”

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