The 2009 Agreement

(For information about the 2013 ring road agreement including maps, click here)

In my last post, I talked about the road design that was part of the 2009 proposal, which was eventually defeated in a referendum of Tsuu T’ina members. While this design formed a large part of the 2009 agreement, the details of that agreement are equally as important when it comes to understanding the history of the road. By all public accounts, the reasons why many members of the Tsuu T’ina voted against the 2009 deal were contained in the details of this agreement.

Soon after the deal was rejected by a vote of about 60.5% against, Tsuu T’ina Chief Sanford Big Plume made comments that the Tsuu T’ina were interested continuing negotiations. While stating categorically that they were not asking for more money, more land or a different route, he did identify a few details of the agreement as being part of the reason the vote failed. Rather than rejecting the entire agreement, he implied that the Nation had voted against certain clauses that were unacceptable. While the Nation were on record as wanting to continue the negotiation process (the deal was only ever put to a vote that one time), after the rejection the deal was declared dead by the Province.

Before we look at the details later identified as needing revision, lets look at what the agreement actually contained:

Key points of the 2009 Agreement:

• The Province would receive 988 acres of land in the eastern portion of the Tsuu T’ina reserve, to be used as a transportation and utility corridor (including LRT if desired).
• The province would pay $275 million to the Nation; $20 million to be paid to the Nation immediately, and $255 million to be held in trust.
• The Province would make best efforts to transfer 4858 acres of Province-owned Crown land to Federal Government, to be converted into reserve land.
• If the Tsuu T’ina wanted to, they could purchase a further specific 320 acres of private land and have it transferred to the Federal Government in order to be converted into reserve land.
• A number of interchanges (two in the ‘Opening Day’ phase, and three more in the ‘Ultimate’ phase) in addition to the 37th street interchange would be built to allow for access to Tsuu T’ina land, to service future Nation developments.
• If the land acquired by the Province is no longer required for road or utility purposes, the land would revert to the Tsuu T’ina to be reintegrated into the reserve.

SO WHAT ARE THE PROBLEMS?

It was reported that there were three main points of contention with the 2009 agreement. The Tsuu T’ina stated that there were three things that the agreement lacked:

• Guarantee of additional land.
• Guarantee of continued access to Tsuu T’ina lands via the road.
• Land to revert back to the Nation if the land was no longer needed for a road.

Guaranteed Land

While the agreement did identify the precise 4858 acres of Crown land, the wording of the agreement did not include any guarantees. The agreement stated that the province would use ‘reasonable efforts’ to secure the land for the Nation, and that if that could not be done, the Province would have the option of paying cash instead of any lands they could not secure. The agreement also had a get-out clause: If the Nation did not get all of the 4858 acres, it had the option of accepting the cash payout, or of cancelling the entire deal. In addition, if any of the lands were not converted into a reserve by the Federal Government, the deal could also be abandoned without penalty.

This map shows the City of Calgary in blue and the current Tsuu T’ina reserve in red. The magenta represents the additional crown lands available in the land swap, and the bright green represents private land that could be incorporated into the reserve.

The Nation have stated repeatedly that their land is one of the things they hold most sacred, and it would appear that the land swap was the key motivator in the compensation: If the Nation was to give up any land, they would need assurances that on completion of the deal, they would end up with more reserve land than before entering the deal. Ending up with less was not an option. (It has been said that the Tsuu T’ina can always make more money, but they could not make more land.)

Why could the Province not guarantee the land swap, especially since the Province already owned the land? The only thing that publicly points to difficulty in doing this is that much of the land in question was being leased out for grazing horses and cattle. The Copithorne family has leased much of the land in question for over a century, and the  5-year leases in question were still active at the time of the negotiations. The Province was perhaps unwilling to guarantee that they could break these leases. However, the three leases that apply to the land in question were up for renewal last November, and their current status is unknown.

Guaranteed Access

The agreement clearly called for access points at no fewer than six interchanges on the road, as well as access directly from Southland Drive and 90th Avenue SW. The agreement also states that all users “will have continous access to and from that portion of the (Ring Road) on the Land at… Anderson Road, 130th Ave, 90th Ave, Strathcona Road and Westhills.” What the agreement does not do, however, is guarantee that City roads that interchange with the Ring Road will remain open. Under the 2009 agreement, City roads like 90th Avenue, Southland Drive, 37th street etc. could be closed from accessing the road, or not connected in the first place, which would significantly impact the access to future Tsuu T’ina developments. Access to future developments would still be guaranteed from the Ring Road directly at the interchanges, but if those roads did not also connect to Calgary, the potential for use by potential could be diminished.

The 2009 agreement stated in section V subparagraph (15):

“Connection to City Roads – Alberta will encourage the City of Calgary to have roads within the City of Calgary remain connected to roads within the Reserve at the interchanges identified in paragraph 14″

So while the connection was encouraged, it was not guaranteed. While remote, it is conceivable that a future City of Calgary Council would seek to close City roads to the reserve.

Why would a future Council want to close road connections with the Ring Road?

There are two scenarios that I can see where a future Council would order the connection roads closed. At some point in the future, the City Council might want to negotiate with the Tsuu T’ina for something, like the purchase of more land. If the City were allowed to close those roads, it could be used to put pressure on the Nation. In addition, future retail and commercial development could attract businesses away from Calgary, and as a result, Calgary could miss out on a significant amount of tax income (businesses located on the reserve would not pay Calgary property taxes). It is conceivable that a future Council could try to increase their tax base by closing access to the reserve, thereby depriving businesses of customers and encouraging those businesses to move into Calgary.

While I personally do not believe either of these scenarios are realistic, a prudent course of action would be to eliminate any potential points of contention in this agreement.

The map above shows transportation corridor areas (shaded) in east portion of reserve. North is on the left.

Reversion of Title

This simply means that if the road is no longer required, the Nation would want the land returned to their reserve. This point is directly addressed in the 2009 deal, and title of the road lands would revert to the Nation if the road was not needed in the future.

Section IV, Subparagraph 7 (c)(i)  states:

“if Alberta no longer requires the Land for the Purposes… Alberta shall transfer administration and control of the Land to Canada at no cost, for the purpose of Canada setting apart the Land as reserve within the meaning of the Indian Act, for the use and benefit of the Nation.”

RESOLUTION?

The Province and the City of Calgary released initial proposals for 5 alternative Ring Road routes contained entirely within city limits in January 2011 (more on this here). In June 2011, the Tsuu T’ina took a poll of their members, and with 68.5% approval, the Nation agreed to re-open negotiations (despite not being the ones who walked away from negotiations two years prior). The Province quickly agreed to resumed negotiations. Transportation Minister at the time Luke Ouellette agreed to guarantee the transfer of the Crown lands in any new deal to be negotiated. He and Mayor Naheed Nenshi state that access will not be a problem, and ‘the City will be helpful in any way we can’.

The revised deal was back in negotiations as of August of 2011. While the outgoing Premier Ed Stelmach was confidant of having an agreement worked out before he left office in October of 2011, announcement of a new deal was not made until September of 2013.

FURTHER RESOURCES:

• Click here for the full 2009 agreement, and here for the initial 2004 Agreement in Principle
• Check out these stories about the deal’s rejection here: the CBC on the day after, and the CBC two weeks later, plus CTV and CTV.
• Stories about the Nation and the Province agreeing to reopen negotiations in 2011 Here, Here and Here.