Investment fund promise turned the tide in port authority dispute

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The Tsawwassen First Nation (TFN) has voted to approve a multi-million dollar deal with the Vancouver Port Authority that will make way for participation in the port's megaport expansion.

"Almost 90 per cent voted in favour of the agreement," Chief Kim Baird said the morning after the Nov. 29 vote. About 85 per cent of the band's 330 members voted. "It was a pretty clear approval, that's for sure."

At the storm's eye was the much-disputed Deltaport terminal, just offshore from the Tsawwassen reserve. The terminal's activities have disrupted the tidal flow along the Straight of Georgia for the past 30 years. TFN's now-shallow waterfront is stagnant. Seaweed clogs the shore, making it impossible to harvest crabs and other shellfish, a traditional activity of TFN members.

The port authority plans to expand the existing terminal and add a new one. More and more freightliners lumber through the straight, stirring up silt and changing the delicate ecosystem.

Tsawwassen means "land facing the sea."

A suit, launched by TFN in 2002, sought an injunction restricting the port authority's operations. If won, the authority would have had to remove their causeways, or alter them so as not to interfere with the water flow and tides.

The deal sets aside the suit. As part of the settlement package, TFN will receive $2.5 million to reduce impacts from the existing facilities.

Baird said the community plans discussions on projects that will meet that end. The idea of a boat launch and moorage facility, enhancing access to shellfish and crab harvesting grounds, has been floated.

Tsawwassen will also receive $4.5 million in compensation. That's for past and future infringement on TFN's claimed Aboriginal rights and title at the hands of the port authority's current operations and future development. "The money can be used as [TFN] sees fit," Baird said.

"We're agreeing to accommodate our outstanding Aboriginal rights and title to the area in question," Baird said. "We're not claiming ownership of it anymore."

And the port authority will foot the bill for a $1 million dollar education and skills training fund to be run by TFN.

Baird also said the agreement guarantees TFN $4 million of construction contracts, plus an additional minimum 35-person years of on-site employment during construction. Once the expansion is complete, provision is also made for TFN members to work as full-time employees at the port.

"There's so much work in implementing the agreement," Baird said. "Part of the construction contracts could be Tsawwassen businesses or Tsawwassen government creating a business that would support band members. I'm sure there have been more opportunities that have been identified. We've dedicated development monies to that."

Baird said the deal was a compromise. A return to the pristine coastline conditions that existed before the arrival of the port was not a realistic expectation.

"We're talking about billions of dollars of change to existing infrastructure and a long time for things to get back to right. It doesn't seem that we can do better than the [the deal we got.]"

Not everyone was happy though, Baird said.

"It's hard to move forward whenever you're talking about an issue that's this important."

The turning point in the two-year negotiation was the port authority's offer of a $10 million investment fund.

Baird said TFN wanted to develop a revenue sharing deal with the port authority; however, the authority wanted Tsawwassen to accept some of the risks.

"But to do that, we had to have some equity in there."

The port authority loaned TFN the $10 million, which was then invested into the authority, Baird said. The port and TFN will together manage the fund. They will also share in the fund's risks and rewards.

That part of the agreement saved stalling negotiations, Baird said. "That was a breakthrough. It's a way of building a relationship into the future."

Asnot every dollar returned on the investment is scheduled to repay the loan, its projected the loan will be paid off in 25 years, Baird said.

The port will need to strike deals with the province over transportation expansion, including the completion of the South Fraser perimetre road and improved railway access to the port.

Doug Harris, an assistant professor of law at the University of British Columbia, said this is an important agreement.

"There's been an important recognition by the business community that First Nations need to be part of developments. It's a recognition," said Harris, who specializes in Aboriginal title and treaty rights, "that to fail to do so increases their risk that the project will be subject to an Aboriginal land claim."

The addition of the new port could depend on treaty negotiations currently under way between TFN and the provincial government.

Part of the agreement between TFN and the port authority would see the authority pay $10 million to rent the land from TFN for a new container faciltiy "if we acquire the lands through a treaty."

If treaty talks fail, Baird said, TFN will work with the authority to "get there outside of treaty."

The Supreme Court of Canada recently decided governments have a legal duty to consult with First Nations about the development of disputed land.

It also decided that consultations is not the legal duty of developers of disputed land.