A "climate of antagonism and animosity"

The ongoing court case between the Coast Tsimshian and the Port of Prince Rupert continues to meander its way through the system. A lenghty process of deliberation that is increasing to the tension surrounding the Fairview Container port issue.

Friday's paper provided details on the latest developments from Ottawa as the courts express concern over the growing antagonistic positions that the two sides have taken of late.

Port case lawyers chastised by judge
By Leanne Ritchie
The Daily News
Friday, June 01, 2007
Page one

Legal wrangling between the Port of Prince Rupert and Coast Tsimshian is turning antagonistic and coming out in court.

In a decision on what evidence may be presented during a future judicial review on the federal government's decision to fund Phase 1 of the Fairview Container Terminal, a member of the Federal Court of Canada noted just how bad the situation had become.

"I have mentioned earlier the climate of antagonism and animosity that exists between the parties," said Madam Prothonotary Mireille Tabib, in a decision released last Thursday.

"That climate seems to have affected counsel; the cross-examinations on affidavits clearly reflect this and I cannot say that it was the finest hour of either counsel for the bands or for the port. It is just as well that I need say no more on the subject."

Thursday's ruling addresses what evidence should be brought before the court during the judicial review. The parties involved in this matter are the Port of Prince Rupert, Ministry of Western Economic Diversification and Minister of the Environment on one side and Lax Kw'alaams and Metlakatla on the other.

The two bands are seeking a review of the decision of the Minister of Western Economic Diversification, made Sept. 26, 2005, to enter into a grant agreement with the Prince Rupert Port Authority for $30 million in order to build Phase One of the Fairview Container Terminal.

One of the issues ruled on by the court has to do with an agreement that was supposed to bring down a veil of secrecy over the meetings between the port, Coast Tsimshian and the federal government.

The parties signed what is known as "the Fairview Agreement" in August 2005. This agreement says that even though the port was in discussions with and providing funding to the two bands as early as 2004, the work done could not be brought up in court in regards to the consultation or accommodation of aboriginal title.

The Coast Tsimshian, made up of the Lax Kw'alaams and Metlakatla bands, were seeking to have an affidavit from port employee Lorne Keller stricken from record because it referenced meetings and correspondence on the port development that occurred under the agreement that the bands say was supposed to bind the parties to secrecy.

However, the court noted the confidentiality in regards to existence of the Fairview Agreement has long been lost.

In fact, the bands themselves filed an affidavit from Chief Councillor Gary Reece, and entered it into the public record, that referenced this agreement.

Madam Prothonotary Mireille Tabib ruled that Keller's affidavit could remain for the time being, but the bands could bring the issue up when the minister's decision is actually reviewed by the court.

The port and government also asked if they could introduce additional evidence in the case, given the court's previous ruling. In September 2006, Justice Von Finckenstein dismissed an application by the bands on "the pending decision of the Minister of Transport to authorize the conversion of Fairview Terminal" but the Justice also noted the Crown's assessment of its duty to consult, limited only to the new water portion of the dock, was unreasonable.

The port and government were seeking to add evidence as they say the bands appear to be relying heavily on the statement made in this judgement - that consultation was unreasonable.
However, Madam Prothonotary Mireille Tabib said they should have foreseen this at the outset of this new application.

"They have not satisfactorily explained why they could not have foreseen the relevance of such evidence and they cannot now supplement their case."

She ruled the parties are limited to new evidence that enforce the facts that - a decision to proceed with a environmental screening decision was made Jan. 22, 2006; construction began March 2005 and should be completed in August 2007; the fact the Transport Canada advised the bands in May 17, 2005, that consultations were complete and that in 2006 the federal government made three transfer payments to the Port Authority.

It is entirely possible that further legal wrangling over the evidence that will be allowed at the judicial review could occur before a date for the review is even set.