ED ALLARD: Tank controversy will be a windfall for lawyers

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The only winners from the storage tanks issue will be the lawyers.  

Councillors, on the other hand, are facing re-election saddled with a problem that has happened to them; not one they caused.  Chuck Charlebois isn't helping with his frequent calls for council to fix the problem.  In their defence, they’ve put a number of irons in the fire, but the options are pretty limited without cooperation from other parties.  Getting to the right people and finding answers is proving somewhat difficult.  

Conversely, there's not much pressure on the federal government or on Guy Lauzon.  For them, it’s more a bureaucratic than a political item.  They’ve done their sums.  It’s not something Lauzon needs to champion to win re-election.  

The two main issues are: getting the tanks removed and acquiring the land.  The latter might be the easier of the two.  The last city council meeting added a third to the list: a resolution to “require the federal government to consult with municipalities.”  Good luck with that.  From my experience, the only resolutions requiring the federal government to do anything come from Parliament, the federal Cabinet or the Supreme Court.  However, if a private member's bill from our local MP... yeah, right!

We can argue forever about whether the government should have signed a lease without consulting with the city, but pointing fingers won’t bring the solution any closer.  There is very little in federal law preventing the government from acting unilaterally on its own property.  Nor is Ottawa bound by provincial or municipal regulations, building codes or bylaws.  Now, how that applies to a lease on federal property is what keeps lawyers busy.  

Getting the tanks removed essentially means cancelling Trillium’s lease.  That is going to cost money.  There will be a termination clause that will likely involve compensation for more than just work already done.  But I can’t see a compelling bureaucratic or political reason why Ottawa would do that unless somebody else agrees to foot the bill.  It matters little to the feds how the land is used – it’s surplus land.  

The other approach is to make the lease unworkable.  Stop works orders and demands for local approvals are part of that.  But sending local police to evict them from federal land is problematic.  Trillium seems prepared to ride it out in the courts.  Council must assess how much of a costly legal battle is worthwhile.  Of course, transfer of the land will change the situation considerably.  Until then, Cornwall’s leverage with Trillium is limited; the main focus should be on the federal government.  

Acquiring the land should be an easier issue.  The federal government seems willing to transfer or sell it.  An ongoing land claim by Akwesasne is a complication, but the beginnings of a joint agreement with the Mohawk Council show some promise.  There is still a lengthy process to a final decision.  But that seems to be the focus of discussions at the moment, which makes sense.  

One question needing an answer is: will the lease with Trillium come with the transfer?  If so, it could become Cornwall’s problem entirely, which might suit Ottawa just fine; Cornwall taxpayers, less so.  And does Akwesasne want anything from Cornwall in return for its support?   

The best solution is a negotiated agreement that Cornwall, Akwesasne, Trillium and Ottawa can all sign onto.  No solution will come without some costs (hopefully shared) and likely some tough choices.  In just about every possible scenario lawyers are going to be involved and will improve their balance sheets.  That’s the only outcome that is 100% certain.  

And that’s the way I see it. 

Organizations: Supreme Court, Mohawk Council

Geographic location: Ottawa, Cornwall

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