Tuesday, July 07, 2009

 

BCRail - is Roberts Bank spur line a gift to CN on July 14?

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A message from Peter Dimitrov:

I believe we may be looking at the sale of the 40 km BC rail line to Roberts Bank to CN Railway...on this July 14/09 BCR/CN Option purchase deal. [This would mean "sale" in terms of the $1. selling price to CN, as we understand things. - BC Mary.]

As owners of that valuable spur line from BC Rail we normally collect interchange fees (that's when a non-owner uses BC Rail track to deliver goods or switches rail cars to another rail road).

Is it true that upon the July 14/09 deal going through, British Columbia and members of the public will lose the revenue generated by the spur line to Point Roberts. If so, is it not true that we will have lose approximately $400 million per year which BC Rail generates after overhead, for our General Revenue in British Columbia.

This "forever" loss of of a valuable rail line asset plus the annual interchange revenue....would be a significant loss to the Public Treasury, losses that reduce the capacity of government to respond to needs in other sectors. Sold for fireside sale prices!!

It is irrational shortsighted policy made to advance private interests and not the greater public interest of the province!

Peter Dimitrov

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Suggestion: Use telephone Enquiry BC (it's free) which provides phone, fax, e.mail, and mail addresses; and will usually connect a caller to the desired number.

Phone Leonard Krog (250) 714-0630
Phone your MLA
Phone the premier's office:
Vancouver number: (604) 775-1600
Victoria number (250) 387-1715
or visit http://www.gov.bc.ca

Then:
Phone the media.

If nobody calls, "they" think nobody cares.

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Another secret railway agreement re-surfaces on August 29, 2009:

RAIL REALITY GROWS WITH HYDRO'S REVELATION.
Brian Lewis
The Province - July 7, 2009.

Recommended.

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And this comment from "Leah", I respectfully post with thanks, adding that "it's never over until the people say it's over" ... OK? - BC Mary.


Leah has left a new comment on your post "BCRail - is Roberts Bank spur line a gift to CN on...":

This is why there will be no injunction...from the BC Rail Transaction Agreement:

ARTICLE 5
CONDITIONS OF CLOSING
5.1 Mutual Conditions

The obligation of the Vendors to complete the sale of the Purchased Interests contemplated by this Agreement and of the Purchaser to complete the purchase of the Purchased Interests as contemplated by this Agreement is subject to fulfillment of the conditions on or before the Closing Date:

(a) No Order or Proceedings: No injunction, declaration, restraining order or judgement of a court or administrative tribunal of competent jurisdiction will be in effect which, directly or indirectly, restricts or prohibits the transactions contemplated by this Agreement and no action or proceeding will have been instituted and remain pending before any such court or administrative tribunal to restrict or prohibit any of tthe transactions contemplated hereby.

(f) Legislation: The Legislature of the Province shall have passed such amendments to the British Columbia Railway Act, and any other applicable laws which may be required to authorize and permit the consummation of the transaction contemplated in this Agreement and the other documents to be executed and delivered pursuant hereto.

Now can we look at conflict of interest or better yet...treason? This is UN-real.

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So ... Gordo knew the people wouldn't like it and might resist. Or CN knew. Or Patrick Kinsella knew. Hence the secrecy. No matter. It's never over until the people say it's over ... and I, for one, don't think it's over.

For example, which agreement is "The Agreement"? Is it the BCRailway Revitalization Agreement? Is it the BC Rail Privatization Agreement? Is it the BC Rail Transaction Agreement? Is it the BCRail Investment Partnership Agreement? Is it the BCRailway Revitalization (Amendment) Act? Is it the BC Rail Revitalization Agreement and Lease? Is it the BC Rail Privatization Consent Agreement? Is it the Realization Agreement? ... or ...

or ... is it anything CN wants, anytime they want it, as in: "
the British Columbia Railway Act, and any other applicable laws which may be required to authorize and permit the consummation of the transaction contemplated in this Agreement".

How many agreements are there, and which one(s) take precedence? Secrecy plus confusion.

-BC Mary.


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Gary E's blog, How Bad Is The Record, has some of the legal documents posted, with descriptions of BC Rail lands:

North Van Yard Tax Dispute. What We Know About The Lease


Recommended reading.

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Labels:


Comments:
Aha! Therein lies the key to motivating the oppositions collective asses - media pressure.

Now,is there anyone out there willing to ask the hard questions and put their name on it?
 
My Gawd! Does this issue ever end? Is there anything at all left? Thank you Peter for bringing yet another possibility (likelihood) to the table, we need answers NOW, not tomorrow. Has anyone heard anything on an injunction yet? We need that yesterday! :)

Good Morning Mary, have you ever had problems with your blog to this extent before? Just curious about the timing, re: the issues that's all...

Oh yeah, before I forget - the local paper did print my letter to the editor in today's edition of the paper. I'm more than a bit surprised...
 
In lieu of the "loss" of BC Rail - CP will have it's way.

British Columbians and BC Hydro be damned.
 
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Hoorayyy! I can access the comments section again today!

MANY THANKS to everyone who continued to make their constructive, helpful contributions.

Gosh, I was even able to access the Court listings this morning ... and no, nothing there today for Basi Virk hearings.

No, it wasn't just The Legislature Raids having technical difficulties, it was happening all over the Internet. Did hear something about a fire in some strategic office. I never did feel it was my particular problem since I could still use part of my blog ... and others were having difficulties too.

Thanks to the techies. Thanks to Koot for stepping in.

So, onward and upward.

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This is why there will be no injunction...from the BC Rail Transaction Agreement:

ARTICLE 5
CONDITIONS OF CLOSING
5.1 Mutual Conditions

The obligation of the Vendors to complete the sale of the Purchased Interests contemplated by this Agreement and of the Purchaser to complete the purchase of the Purchased Interests as contemplated by this Agreement is subject to fulfillment of the conditions on or before the Closing Date:

(a) No Order or Proceedings: No injunction, declaration, restraining order or judgement of a court or administrative tribunal of competent jurisdiction will be in effect which, directly or indirectly, restricts or prohibits the transactions contemplated by this Agreement and no action or proceeding will have been instituted and remain pending before any such court or administrative tribunal to restrict or prohibit any of tthe transactions contemplated hereby.

(f) Legislation: The Legislature of the Province shall have passed such amendments to the British Columbia Railway Act, and any other applicable laws which may be required to authorize and permit the consummation of the transaction contemplated in this Agreement and the other documents to be executed and delivered pursuant hereto.

Now can we look at conflict of interest or better yet...treason? This is UN-real.
 
Interesting suggestion by Mr. Dimitrov.

At first I had a hard time getting my head around it.

But then, after thinking about it for a bit, I realized that it might not be a bad way to bury a long dead, but still troublesome, old quid pro quo forever....


RossK


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Omg, of course: the potted palms, the secret surveillance, the Minister of Finance, the Vila del Lupa ... Consolation Prize!

the RCMP transfers ...

and 4 years of lost e.mails.

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Leah...I think you have to read that section carefully...it may well only apply to the 'deal' which came into effect on July 14, 2005.

(a) and (b) are subordinate to the main term - "Purchaser to complete the purchase of the Purchased Interests as contemplated by this Agreement is subject to fulfillment of the conditions on or before the Closing Date:"

I believe the courts and the justice system are in trouble, but even they wouldn't stand for a clause which limited the commercial and legal actions of third parties (and others) five years into the future.

There won't be an injunction because:
(1) There hasn't yet been an action to restrain;
(2) The Courts would need to be assured that the party asking for the injunction had standing and was threatened by the action; and
(3) The process is costly and has a small chance of success.

That doesn't mean it wouldn't be a good idea or that it's not justified - it just isn't a practical approach at this time.

If the residual properties or the Roberts' Bank section go to CN now - or can be shown to have been covered by a less than arm's length deal - then all bets are off and an injunction (even from a party like CP) would be a logical next step.

All, in my view.

Glad you're up and running again Mary.
 
Idealistic and unrealistic moron that I am, I can't help but intepret Leah's citation of Article 5.1 - Conditions of Closing as "lawyering" at its worst, essentially an attempt to retroactively, and pre-emptively legalize otherwise illegal acts.

In other words the following:

"(a) No Order or Proceedings: No injunction, declaration, restraining order or judgement of a court or administrative tribunal of competent jurisdiction will be in effect which, directly or indirectly, restricts or prohibits the transactions contemplated by this Agreement and no action or proceeding will have been instituted and remain pending before any such court or administrative tribunal to restrict or prohibit any of tthe transactions contemplated hereby. "

translates to:

We are bound by NO LAW, and can do whatever we want and not be subject to legal remedy by any means

and section (f):

"(f) Legislation: The
Legislature of the Province shall have passed such amendments to the British Columbia Railway Act, and any other applicable laws which may be required to authorize and permit the consummation of the transaction contemplated in this Agreement and the other documents to be executed and delivered pursuant hereto.
"

translated, means:

No law can be passed in the future to reverse, stop or remedy our transgressions no matter how egregious.

No wonder the CEO Premier seems to think he can obstruct justice with complete disregard for the mere LAW. It is clear that the BC liaRs answer to a LOWER law than the rest of us!

The missing women, the gangland slayings, the drug trade and the UN Gang, Big Circle Boys, Hell's Angels and other gangs are just a distraction from the real crime spree that has been victimizing British Columbians for the last eight years and threatens to continue unabated, perhaps even accelerated for another four years.

Of course everything Hitler did, from invading Poland to killing every Jew the Nazis could round up was LEGAL under the laws of the Third Reich. Keep in mind that the judgement at Nuremburg came to a different conclusion. Hitler and later Nixon were both brought down and currently Cheney, Bush, Rove and gang are nervous -even Pinochet would have faced charges at the Hague if he hadn't have died to avoid the indignity. Not that long ago all citizens shared to a degree in the wealth contained in our forests, mines and streams. If the citizens of BC allow Greedy Gord and Gang to have their way with aplomb, I guess they will deserve to live in a looted wasteland (and will indeed live in a looted and polluted equivalent of a depleted gravel pit - a fate awaiting their neighbors to the east in Alberta as well)!
 
Kootcoot, you're reading the article to mean the same as I. To me this article shows that they clearly know what they're doing is wrong, and they're trying to run a game insuring that no one has the right to stand against them.

My next question as owner of BC Rail is, how can the premier of this Province take a property that belongs to ALL of us, and treat it as though it were his alone? The intent shown in the article (to me) shows disdain of an unbelievable level by both the government and CN Rail.

Another question: Do you think there would be something about this whole thing that is constitutionally wrong? I know they say no injunction or court proceeding can stop it, but isn't that taking the power from the hands of the court for their own decidedly unlawful use? They're in effect stealing from the people, creating new laws, and insuring that the law must be shaped around their will??!

And in the estimation of those who are regulars here, what will be our next step? I ask because since the letter I wrote appeared here in the paper today, I have people calling me at home to talk about this issue! I don't want to dash hopes (including my own), but I don't want to lead anyone in a circle either.
 
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Leah ... it's wonderful to hear that people are calling you at home, about the BC Rail issue. That's very encouraging.

Please tell people to make those telephone calls, e.mails, visits, letters to the people I've listed, who are being paid to look after our concerns. It's our thankless task to keep pushing them to do their duty.

Leonard Krog must be awakened, to provide some clues.

It may not sound very dramatic but a letter-writing (and phoning, visiting) campaign is necessary to get the Opposition moving.

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About the gravel pit - I like reminding people that Joni Mitchell's line "they paved Paradise, put up a parking lot", was written about BC, even somewhere particular in Vancouver but I'm not certain where; maybe the old Harbour Park protest camp/demonstration site at Georgia & Denman....

It strikes me, however, that both of the very questionable clauses you've brought up, kootcoot, are themselves illegal, in effectively stating exemptions from the Criminal Code of Canada and also exemptions from the constitution and from the jurisdiction of federal courts and the federal Parliament. They are, in effect, treasonous and also the granting of a right to the signatory parties to the agreement not accorded any other private or corporate citizen of Canada: to whit, exemption from the constitution and laws of Canada and the freedom to flout them as seen fit, without recourse.

The Legislature and Lieutenant-Governor-in-Council of British Columbia does NOT have the constitutional authority to have entered into any such agreement. Which, technically, renders the entire agreement null and void.

But we, in this country, do not have a mechanism for constitutional enforcement. In fact, the de facto "third house", the Council of First Ministers, which was proposed in the rejected Charlottetown Accord but brought into being anyway by fiat, has established an arena, and represents a medium, by which accommodations between provincial premiers ("the princes" or "barons") and the federal prime minister ("the king") where their respective constitutional overrides are tacitly approved and/or openly tolerated. In the past, before this cabal of usurpers hijacked the constitution, provincial legislation and contracts were regularly overturned by the federal government and, before the Statutes of Westminster, by the "home government" in the UK. These included toll-laws and head taxes in the colonial era (the original head tax attempt was against Americans, not Chinese) and the various rounds of the BC government's attempts to control immigration though means of a head tax on the Chinese (who, unlike the Americans, were still arrriving in large numbers), which were refused as illegal for decades before Ottawa finally succumbed to political pressure. Those aren't the only examples, just the most famous ones in terms of modern context/memory, of provincial laws being overturned by either London or Ottawa. I recall some mining legislation being overturned, for example, as well as Premier Dickie McBride's pro tem purchase of two submarines in 1914, as provinces are not supposed to have their own militaries (the subs were absorbed into the RCN within 48 hours but for a very short while there existed, if illegally, a "British Columbia Navy").


(Cont'd. next comment ...)
 
But since 1982, and since Charlottetown, the first ministers have increasingly cut themselves larger and larger slices of the constitutional pie, with each other's cooperation and lack of opposition - effectively amending the constitution without having to get the 50% and 7 out of 10 that amendments by ordinary mortals would require, and which make it so impossible to reform our system in any significant way. This was not accidental, and was one of the conditions demanded by the first ministers of Trudeau (whose only real interest was to remove the remaining oversight by London so as to give Quebec its taste of overcoming British domination) - i.e. the first ministers would only approve a constitutional amendment proposal and ratification process which would not be so easy as that of our southern neighbours, and which might introduce controls on their own sweeping powers.

So first we had Meech, and then Charlottetown; and when both of those were rejected, Charlottetown especially (and not because of women and aboriginals and Quebec, but because of the way the first ministers and the media/intellectual elite were shoving it down our throats), most of the power-centralizing and power-consolidating measures in both agreements were effected by fiat and sold to the public by our media as perfectly normal and evidence of how well our mythical culture of cooperation and conciliation was working ("cooptation" is more like it). So much unlike the turbulent hurly-burly of congressional politics south of the border, and so much a sign of how superior our system is to all others.

What a crock huh?

But the clauses kootcoot has raised, like the terms of the TILMA agreement, are clear declarations of political independence both by a sitting government and also by the corporate individual on the other end of the contract. A corporate individual which also just happens to be a corporate citizen of another country, which is exempted from governance and legislation and the authority of our courts that no Canadian citizen or corporate entity similarly enjoys. This is outrageous and not acceptable. Nor is it legal.

(Cont'd ...)
 
You'd think would have the federal government in apoplexy. It may yet prove that the contract finally reaches the Supreme Court of Canada, and is dismissed out of hand, as its terms have no hold on that court, even though it claims to. I submit that the federal court will look very dimly on a document that says "we cannot be regulated or interdicted by the Parliament or Courts of Canada". That kind of hornswoggle may work in BC - because our media are such toadies and people are so used to political arrogance masquerading as good government - but it stands more than a fair chance of being overturned by the Supreme Court, if not by Parliament itself.

Now, Parliament, there's a problem. It's pretty clear that the Harper regime has no problem at all with BC writing for itself a constitutional carte blanche, which is what those clauses amount to, and that Harperdom pretty much supports nearly anything Gordo wants to do, and probably wishes they could pull off stuff with as much license as Gordo gets away with.

So I'm not expecting the federal Solicitor-General or the Minister of Trade and Development, or the Minister of Transportation, or the Minister of Finance, to step up to bat and assail this contract as outside the boundaries of Canadian law and constitutionality. If unopposed, it also becomes convention, and can be used as a mechanism for questionable dealings by other Canadian governments.

But say we have a change of the federal government - will that make a difference? I'd like to think so, but the reality is that because of the shared name, if not the shared ideology and shared loyalties, of the Campbell Liberals and the Ignatieff Liberals, it's highly unlikely we can look to Prime Minister Iggy or any of his ministers to do anything about it. Even though most BC Liberals will be campaigning for the Tories; because exposing the criminality and treasonous nature of a contract entered into by a Liberal government will taint the federal Liberal Party and government because most of the country labours under the media-induced delusion that the BC Liberals really are Liberals, and not the extremist wing of the Reform/Alliance.....which is what they really are.

So what we have is a provincial regime that has surrendered, or attempted to surrender, the sovereignty of Canadian laws and the Canadian constitution, the sovereignty of the Parliament and Courts of Canada and the authority of the Parliament and Courts of British Columbia, to an American company. The term "extraterritoriality" seems too mild a term

The corporate right have found a way to annex Canada without actually having to annex the country itself; just enter into contracts which contain clauses that bypass Canadian law, and override the authority of the courts and constitution.

HOW CAN THIS BE LEGAL? And does it not point to conspiracy to overthrow the authority of the Crown?? IS THIS NOT TREASON??

Maybe Iggy will show some spine, but I'm not holding my breath.....
 
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Many, many thanks Skookum1.

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Thanks for the plug Mary.
After reading the comments I had a flash and started to laugh out loud. I saw some lackey Lawyer waltzing down the Isle in SCBC waving a piece of paper hollering for a dismissal because he had it in the contract that they couldn't be sued, charged, or legislated out of an illegal contract. At which point the judge fell off the bench. It wasn't her honor Elizabeth Bennett.
 
Thing is, the contract - or rather this one of many apparent "Agreements" comprising the deal - is not itself before the courts. The way it was negotiated, even, is only ancillary to the evidentiary aspects of Basi-Virk, which is all that IS before the court, ultimately.

Nor has any branch of law enforcement or commercial regulation examined it for violations of Canadian law. So the trick is how to get it before the courts, how to get it properly investigated and brought before regulatory review.

As it transgresses federal law, and seeks to do an end-run around the constitution, this is a federal matter. But we know from watching and waiting on the BC NDP that their federal counterparts aren't likely to stand up in the Commons and demand an investigation and/or repeal of the contract. I think maybe if Chuck Cadman were still alive, he'd be the man to do it, but he's not. And we're unlikely to see a Liberal or a Tory raise the issue (certainly not David Emerson...).

Even if an MP did stand up and raise the matter in the House, the province would claim that the federal government has no business in provincial business. But the rejoinder to that is that the contract transgresses on federal turf. It would probably go to the "Council of the Federation", which is the first ministers' golf-and-drinks party, and Campbell would wheedle cooperation from his colleagues, reminding them that they, too, can strike contracts that allow their corporate clients exemption from Canadian law. "Let's just make it legal". And they'll go along with it, won't they? And our obsequious national media and their pet chorus of pundits, will talk about compromise and the necessity of doing things new ways etc.

(cont....)
 
(part 2)


So, given that our political and media establishment are quite useless, how to get the contract(s) before the courts, preferably the federal courts, and ideally in front of a judge who's not in the hip pocket of The Way Things Are.

Un-independent as they are, I think the courts are the only mechanism that stands half a chance of addressing the illegality of the contract(s). But how to make the case? You do need, after all, the Crown's permission to sue the Crown. And a LOT of dough.

BTW about my use of "extraterritoriality", later on that evening the term "concession" came to mind, which was the diplomatic term for the Chinese, British, German and French "spheres of influence" in Imperial China, which modern Chinese view as so degrading. Canada is already an American "sphere of influence", but the proliferation of American interests in the infrastructure of BC, and in the contracting-out of government serivces, points to a new kind of "concession". It's almost as if BC is becoming a "Special Economic Zone" where, like Shenzhen, the normal laws and practices of the host country are set aside in order to enable foreign investment and export-oriented services and manufacturing. And, as before with the Retraint Budget of '83, it may very well be that BC is being used as the test case for what will be broadened out to the rest of Canada once the proving ground here is shown to work. Shown to be unstoppable.
 
(part 3)

So the concessions given to CN, to an American company, in these contracts, are a "dry run" or a draft version of what the rest of the country is in for. And it probably won't just be American companies either (given the amount of Chinese investment in our resources, and the previous special treatment given Concord Pacific re the Expo Lands, and of course the Australian co. Rio Tinto's hold on what used to be Alcan and what they've gotten away with re Nechako II/Kemano II).

What I'd like to know is, are the clauses in these contracts in any way a precedent within the NAFTA rules. i.e. can other American (or Mexican) companies demand the same extraterritorial concessions that CN got with this contract? In other words, is this not just a Canadian precedent, but a hemispheric one as well? If we give it to one company, do we have to give it to them all?

If so, we might as well just start pressing for statehood, as it may be the only way to preserve equality before the law, which these clauses override.
 
"If so, we might as well just start pressing for statehood, as it may be the only way to preserve equality before the law, which these clauses override."

I can almost feel Mary reading this line with disgust, but even she will probably admit that Skookum has a point. Actually Skookum's contributions above raise many significant and fascinating points.

I still think that if something like this BC Rail scam was happening in the Empire to the south, some rich Railroad Buff, with more money than Croesus would be launching law-suits in every direction, and could actually have a prayer of having a affect on the crime spree.

Perhaps the oligarchy is starting to lose it because all the greedy casino economic games are coming apart. Today Celgar (the pulp mill in Castlegar) has announced that it is joining Catalyst Paper in the Corporate Tax Revolt and delivered a letter to the Mayor and council of Castlegar to inform them that they wouldn't be paying their assessed taxes this year.

This company in recent years has benefited from untold millions of road improvements as the province has built an industrial corridor from Revelstoke to Castlegar so that poor Celgar wouldn't have to invest in a couple of tugs and barges to move chips more efficiently and in a more evironmentally friendly way to their mill.

These companies aren't appealing their assessment like normal people, they are demanding the right to set their own tax rate, municipal budget be damned. Maybe the municipalities can levy a bed tax in the homeless shelters to take up the slack.
 
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