TO: HER MAJESTY THE QUEEN IN RIGHT OF CANADA, as represented by the Minister of Public Works and Government Services
#219 – 800 Burrard Street
Vancouver, British Columbia V6Z 0B9
Attention: Ben Black, Regional Manager, Real Estate Services, Public Services and Procurement Canada
Re: Senakw Development and Vanier Park lease – URGENT NOTICE
Dear Mr Black, I write as a member of the Executive Team of the Kitsilano Point Residents Association.
As you know we submitted community concerns in relation to the impact assessments undertaken by Indigenous Services Canada, Public Services and Procurement Canada and and Canada Housing and Mortgage Corporation in respect of the Senakw development. We raised as concerns in both those impact assessments the fact that the development proposal contemplates use of Vanier Park lands for an access road for the purposes of this commercial development.
The Vanier Park lands are leased to the City of Vancouver for public park, recreational and museum purposes under a lease from the federal Crown dated August 15, 1966 (the “Vanier Park Lease”).
We have recently obtained a copy of the Municipal Services Agreement (the Services Agreement”) entered into between the City of Vancouver and the Squamish First Nation (the ”First Nation”) regarding the Senakw development. This was obtained from the First Nation’s website on July 29, 2022, after many failed attempts to obtain information about the road arrangements from our own elected representatives.
The Services Agreement contains a copy of a licence agreement that the Government of Canada proposes to grant to the First Nation in Vanier Park for road and sewer purposes. It discloses that the federal government has agreed to grant the licence in the form appended to the Services Agreement (the “Licence Agreement”). Your name appears on the Licence Agreement as signatory.
I have reviewed the Licence Agreement and as a member of the relevant public write to demand that no further steps be taken to issue the Licence Agreement for the reason that the Licence Agreement is not authorized under the terms of the Vanier Park Lease and will be in breach of the rights of the City of Vancouver under the Vanier Park Lease, to the detriment of the public.
There are two bases for this assertion:
- The grant of the Licence Agreement to a third party is not authorized under the terms of the Vanier Park Lease and specifically is not within the terms of section 6(c) of the Vanier Park Lease.
The Licence Agreement is premised on the following statement in the Recitals:
- In the Lease, Canada reserved and retained unto itself certain rights including, among other things, the right to make use of portions of Vanier Park for “any public purpose”.
However the intended parties have relied on this statement in error. This is an erroneous statement of what the Vanier Park Lease provides.
Section 6(c) of the Vanier Park Lease provides that the lessor shall have the “power to resume and take possession without compensation of any portion of the demised premises or any buildings… erected thereon whenever it may be required in the judgment of the Minister of Public Works for any public purpose whatsoever”.
Section 1 also contemplates the potential retaking of lands for these purposes under section 6, and provides that the demised premises includes only those portions of the land identified in the schedule that are not required by Her Majesty for any public purpose.
However the Crown in this case has not acted to “resume and take possession” of a portion of the premises. The Crown in fact has not acted in any way to retake lands and exclude them from the lease as contemplated by section 6(c) and section 1 of the Vanier Park Lease. The Crown rather proposes to merely grant a licence, not amounting to an interest in land, to a third party without resuming possession of the lands.
There has been no resumption of possession of the land by the Crown as contemplated by section 6(c) and there is no provision for granting third party rights by way of licence under that section.
The granting of the Licence Agreement is not permitted under the terms of the Vanier Park Lease, will be in derogation of the lessee’s rights under the lease, and will breach of the lessee’s right of quiet enjoyment under section 8 of the lease.
- The Purpose of the Licence Agreement is not a Public Purpose within the meaning of the Vanier Park Lease.
Under section 1 and 6(c) of the Vanier Park Lease the Lessor may only retake lands for a public purpose.
It is clear from the Licence Agreement and the Services Agreement that the purpose of using Vanier Park lands for the development access road is to increase the developable area of this commercial development.
It cannot be said that the First Nation could not access or service the Senakw reserve without the Vanier Park access road. It also cannot be said that the reserve cannot be developed without the Vanier Park access road because any roads required for the development could be placed on the developer’s land (the reserve), as would be required of any other commercial development.
The reserve has direct access to city roads at two locations and this will not in any way be changed by using Vanier park rather than reserve land for the development road at Chestnut street. There is no better access, just more development. A massive tower development, well beyond what would be allowed in the City of Vancouver, is to be made more massive by using park land for development road.
This is a commercial development and increasing the profitability of a commercial development is not a “public purpose”. I would think that to even suggest that it is sets a dangerous precedent for the Crown.
I would also point to the language of section 1 which refers to lands “required by Her Majesty… for any public purpose” being removed from the lease. This assists with the interpretation of “public purpose” in section 6(c) as being a public purpose for which Her Majesty requires the lands. In this case the lands are not required by Her Majesty for any purpose.
It is probably not directly relevant at this state of the discussion but I cannot help but point out that the use of self justifying language in the Licence Agreement itself is quite transparent. An example is the attempt to mischaracterize the existing pathway in the park as some kind of an “alternate access route” that can simply be “upgraded” into a roadway.
The path in question is unpaved and not wider than a sidewalk – less developed than other walkways in Vanier Park . The path is no more an “access route” than any of the other park walkways. I hope that Canada does not plan to “upgrade” all of these for use by cars. The public may well use the path to get from one point to another in the Park, but it is not a direct access route for any of the Park amenities except for those wishing to enjoy the quiet of nature and the forest trail. The public uses it to walk and roll in the park just as they use other park paths. It is also a safe car free route for cyclists enjoying the park. The grassed area adjacent to the path, which is also proposed to be paved for use by cars, is enjoyed by people walking their dogs, hanging out, attending support group meetings and others. To the extent that the area is paved for road there will be less space that people will have to feel in nature, separated from roads, traffic and the concrete towers planned for Senakw. A walk on a 6000-unit development access road is not a walk in nature.
We request your immediate response to this correspondence acknowledging receipt, together with your confirmation that no further steps will be taken to issue the Licence Agreement until these issues can be brought to the attention of the relevant parties and properly addressed.
I have copied the Vancouver Park Board on this communication as under the Vancouver Charter they have exclusive possession, jurisdiction and control of Vanier Park and have a duty to protect and defend this City park asset against the derogation of their rights under the Vanier Park Lease.
It is unclear to me why the City Of Vancouver has not acted to protect and preserve City assets relative to Vanier Park. It is clear from the Services Agreement that they are aware of the plans for the Licence Agreement. I am copying authorities there as well with the hope that they can shed some light on this.
Our comments here are not exhaustive with respect to the matters addressed and are without prejudice to any other claims and causes of action.
KET (KPRA Executive Team)