Expressway Implementation Committee
February 24/04 Report

Meeting scheduled for 8:30 am. Began at 8:40 am without quorum. Merulla, Pearson and Bruckler present (out of nine members). Chris Murray chaired the meeting. He indicated that Mitchell and Mayor DiIanni were expected very shortly. Jennifer DiDimenco outlined role of committee at request of Murray. “EIC established to provide overall guidance and advice to staff on the development and implementation of the project, specifically the detailed design and construction phases. Committee intended to advise council on progress and to receive feedback and direction as appropriate, and to assist the public with issues relevant to the detailed design and construction phase.” Quorum is 50% of membership body. Currently 8 councillors. Committee needs to appoint a chair and an alternate “through election”. Monthly meetings were the norm in the past.

Mitchell arrived at 8:46 am which gave the committee four of eight members and a technical quorum. Murray asked the committee to select a chair. Pearson suggested they wait until all the members were there, so Murray continued to chair the meeting.

Project update provided by Murray. Mt. Albion diversion completed in December. Greenhill work likely finished in June or July. CN Bridge should be finished this year. Clearing underway and “within the next couple of weeks that work will be completed”. Two major contracts going forward in the spring – mainline construction of the road from Mud to near Melvin. Barton Street interchange contract in the fall and Rennie Street. “We expect that MTO will start work this summer.” Says Paul Williams is coming this morning.

Nicole Swerhun of LURA presented report on consultation. Few copies distributed. We have one. Contract started in April 2003 as neutral third party facilitator. Development of communications materials done by City. LURA provides advice. One page summaries put together by City. People encouraged to call RH Project Office “Mike Marini”. “By far the largest worry is regarding communications, that there isn’t enough information that’s being distributed about the project, that it’s not coming in a timely enough way, and that the content is not necessarily meeting the needs of the people that it’s being directed to.” “Big concerns are related to noise during construction and when the expressway is open to traffic; air quality; excavation of the Rennie Street landfill (and we’re working with the Rennie CLC on that); traffic infiltration; status of permits and what’s in place before work started; property damage; property value and child safety. I’ve just hit the major ones there. More detailed information in the report.”

“As a result of that feedback, the big recommendations moving forward relate primarily to communications. I’ll highlight seven big things that I’ve suggested to the City need to happen, and putting it forward to this committee as well.”

• improve design of Red Hill Valley website
  
  
• neighbours guide and newsletter should be distributed every four months, regardless of what’s happening – April, July and November
  
  
• specific issues – Parkview community re excavation of Rennie – suggest City issue bulletins to these communities as needed
  
  
• fact sheets – only available on line – should be available in more places (libraries, community centres, clerks office, once a month ad in the Spectator or more frequently)
  
  
• “we’ve held one backyard meeting” – talk about noise walls, 15-20 meetings planned, notices out in next two weeks. Hold meetings once snow melts. Suggest that anyone can request a backyard meeting.
  
  
• “I’m not receiving a lot of calls” “The calls that I am receiving, people are very… people are addressing a number of concerns” So implement above improvements and conduct another evaluation in June. Possibly random survey or walk-about.

Murray says there will be time at the end of the meeting for any questions or comments from public. Ask people to let councillors work through the agenda. “We’ll open up the floor to whoever is in attendance”.

McHattie arrived at 9:02 am. A citizen called out at this point asking that the minutes show that the mayor had not arrived yet. Murray says: “The mayor obviously can attend any committee meeting the mayor chooses. Mayor had indicated he would be late because he’s attending another meeting this morning.” (DiIanni arrived at 9:12 am).

Murray: “Paul Williams is supposed to be here”. First allows a representative of aboriginal women to distribute a flyer. Statement distributed and read condemning the agreement as null and void and ordering Williams and cheifs to cease and desist. (see attachment). DiIanni arrives at end of this along with Williams.

Murray: “We’ve been working with six nations representatives for over 18 months”. Five components of project. We don’t agree on the road, but agree on other four components – CSO pipe, stormwater management, relocation of creek, landscape management plan. “Really in the last four to five months when the decision of the Confederacy chiefs was to appoint individuals to negotiate with the City on some fairly critical issues, that we started to make the bulk of the progress that we’ve seen that is here in front of you today.” Emphasizes that the City Council has to ratify the agreements developed by council representatives (“Guy and myself”). “The reason why we thought it was important to have this meeting with this committee at this time, was to provide you an opportunity to ask questions, to make comments about those agreements, and how we’re going to move forward with them. So the process is to receive the comments, questions and feedback from the committee members so that staff can then write a report which it will take to Public Works committee for approval”. “These agreements have been in your possession since February 5th”. “Now an opportunity for you to ask questions, make comments, so that we can move forward.”

McHattie: “Can we have a discussion of the ratification of the agreements to begin with. Article in the Spectator this morning questioning how many members of the Confederacy have signed versus how many have to sign, and those kinds of issues. We also need to know how the Band Council factors in. I’ve written a letter to Indian and Northern Affairs Canada asking for the federal government’s role in this. As you know there is a treaty involved in this as well.” “We’re in a position where we are going to be letting two tenders in the amount of $45 million in mid-March or so, as I understand it, and we are in a budget process at the moment and that’s a lot of money we’re looking at, and in my role as a councillor, I need to be concerned about the risks to the people of Hamilton to continue with the project at this time, to let contracts at this time, when there are significant unanswered questions.” Notes substance issues with the agreements, but wants to start with ratification process.

Murray: “Mayor DiIanni has also asked to speak”.

DiIanni: Comments focused on process. Apologies for lateness. He was at Employment Expo. “I’m just wondering who’s chairing this meeting?” Murray explains decision to wait to select a new chair. Merulla suggests that DiIanni take the chair. He does and says: “I’m suggesting that we need someone on the political side to chair the meeting. It’s very unusual to have staff that’s going to be handling some of the questions, and making some of the presentations, based on the questions, to also be chairing. In my view it’s not appropriate so I’m glad the committee agrees.” Agenda accepted. Accepts that everything up to “six nations” item is dealt with, then moves to McHattie question: “I don’t know if Chris you want to do that, or Mr. Williams or Guy wants to do that”. Chris says Paul Williams is best person to answer this question. (NOTE: This is problematic. Williams presumably does NOT work for the City.)

Williams: “Negotiations which ended in January began at the end of August with a team of negotiators appointed by the Six Nations Confederacy Council on August 30, reported back regularly to the chiefs, and on January 10th the Confederacy Council ratified the agreement.” “None of our business how your politics works, and none of your business how our politics works.” “Six Nations politics internally is complicated.” “The involvement of the elected council in the negotiations was not direct. It was indirect. One councillor was designated as the liaison, informed throughout the negotiations. He was provided with documents in advance as often as possible. His thoughts were taken into account. At this point there are several issues that the Band Council has sought clarification on. The federal government, except for the Department of Fisheries and Oceans, has not been involved in these negotiations.” “The Confederacy doesn’t make treaties with the City of Hamilton. It’s bound by the obligations of the crown and acts within the structures created by the crown and our negotiations took that into account. What we did is consistent with the treaties, but it is not a treaty. Thus we didn’t think the federal government needed to be involved.”.

Merulla: Key concern. “Is it your understanding that work and contracts are going to be guaranteed to you by signing onto this agreement?” Williams: “accent is on opportunities”. “The economic agreement comes at the tail end of the negotiations.” Priorities were protecting burials and human remains, and treaty rights. Operate on basis that we help each other. “If there are economic benefits that flow from this project and the work can be done by Six Nations effectively and competitively then there is no reason why we shouldn’t help each other. The economic agreement carefully creates opportunities, but there are no guarantees. If we can’t provide the work, or the quality or the materials in a timely manner, in an economic manner, then Hamilton is free to look elsewhere.”

Merulla: It will be open, competitive and transparent process. Williams: “It will be transparent. It will be competitive in the sense that if we can’t achieve something in partnership, Hamilton can open it to competition.”

DiIanni intervenes: “If you read the agreements carefully, there are some investments being made, there are opportunities being created for long term employment and we want to be able to partner with the private sector, with the public sector, and as you’ve heard Mr. Williams indicate, with his community as well. And I can tell you that we’ve had expressions of interests from each of those sectors already to us. I can also inform you that when I met with the social services agencies last week around some pre-budget consultations, they on their own volition also asked – and Councillor Horwath who’s not here this morning, I think agreed with the intent – asked whether they and their clients might also be part of the opportunities that this project might offer. Of course the response was ‘yes’ as long as it’s done appropriately, properly and transparently.”

McHattie: Question to Williams, appreciate not meddling in each other’s politics. “As a member of council and being asked to ratify this agreement and mindful of our financial crisis here”. “How many chiefs sit on the confederacy.” DiIanni intervenes: “We’ve heard very clearly from Mr. Williams that they have their own governance structures and its complicated and they have their own way of bringing their agreements to ratification. I don’t want to be putting us in a position of questioning the processes we have no control over.”

McHattie: Notes letter from Hodonishoni women, discussion in newspaper, possibly a split. If we sign agreement without assurance of agreement on other side, a legal challenge could occur, federal government could get involved, outstanding legal case pending related to Mr. Green. “Question of weighing the risks of entering into the agreement, with some unknowns quite frankly Mr. Mayor, is the reason that I ask the questions.”

DiIanni intervenes again, passes to Mr. Merulla.

Merulla: “Having worked with the City of Brantford for nearly a decade and dealing with six nations, you don’t want to become involved with their politics. I think we need to take this quite seriously.” Doesn’t want to question integrity of process, does Williams think we’re questioning that integrity.

Williams: “Short answer is that it was passed through council on January 10th” and there were chiefs of four nations present. “All I can say is that the confederacy chiefs in council authorized the negotiations in August, reaffirmed the negotiations in October, ratified the agreement in January.”

McHattie: thanks for answer. Asks if Hamilton legal staff comfortable with entering this agreement, noting official status of band council. Also how this pertains to the 1701 treaty.

Nancy Smith (Hamilton legal department): Not a treaty. “The agreements are a statement of mutual understanding and opportunity that flows from existing treaty rights.” Have gone through the agreements and are satisfied that the city is capable legally of entering the agreements. Notes that Williams is a lawyer and says his client is legally able too. Both lawyers are governed by Ontario law. She wouldn’t question Williams statement.

McHattie: Asks about Larry Green case. How does this relate. Nancy Smith: discussion should be in camera and suggests it could be added to future agenda.

DiIanni: refocus on agenda and further presentations. Murray asks Guy Paparella to make presentation.

Paparella: “This wasn’t about liability. It was about two communities working together to try and find a mutually respectful way of operation.” These are “understandings not legal agreements”.

Murray asks Williams to speak again: Notes treaty not clearly recognized by courts or strongly upheld by them and rather than rely on that they entered into negotiations to see if they could achieve what they needed to achieve. “To make it very clear, we don’t agree with the idea of the expressway.” “If we went to court we would likely not only lose the fight against the expressway because we’re coming at the tail end of 30 years of the fight against the expressway, we’d also probably suffer injury to the treaty rights. So we took a look at what we could achieve in a pragmatic way. That is, our approach to these negotiations was can we mitigate the damage and what can we do for the future.” Archaeology useful science but we don’t agree with interference with human burials. “What the agreement does is avoid interference with human burials by proper, careful planning of archeological work. And the agreement also covers what happens if we do run into human remains”. Agreement covers all human remains not just aboriginal. Creates joint stewardship board. “What we said is we’re not going to fight over who owns the valley.” Valley became private land in the 1840s and message from the courts is that they will not evict private landowners. “Rather than fight over who owns the valley, we thought we could agree about who looks after the valley.”

Agreements drafted in Haudenosaunee context but also to satisfy Canadian law “that Hamilton has to live with”. “We dealt with the issue of hunting, gathering and trapping, and those are rights that are specifically treaty-protected. We did so in a way that reflects pragmatism and conservation.” “Hamilton doesn’t refute the rights. With rights come responsibilities.” Resource centre – needs to contain information for the general public so it can be propertly informed. Notes that sewers and other infrastructure of Ontario cities in trouble, but also trees and plants and that Six Nations territory is the largest intact Carolinian area in Canada. If it can provide trees, shrubs and plants to revitalize cities “that is consistent with our values”. On economic opportunities: “If we are lucky, and we together are lucky, what we end up creating is a set of enterprises at Six Nations that can help Hamilton and other cities address some of the environmental deficits that are being created.” Talks about seven generations. Agreements aimed at the future. “People who have difficulty with these agreements in a Six Nations context, we’ll deal with them in a Six Nations context and we’ll do so respectfully. In discussions with Guy Paparella and Chris Murray we encountered nothing but professionalism and integrity and respect. We disagree on things – basic issue of whether this road should be put through this valley. I’m reminded of what the great philosopher Mick Jagger said: ‘you can’t always get what you want, but if you try real hard you’ll get what you need.’.”

Merulla: thanks all involved. Do we need a motion to accep? DiIanni: just comments. “We don’t even have a clerk.” Merulla asks if agreements can emphasize transparency and openness.

Jackson arrives at 10:03. Merulla leaves at same time.

Mitchell: thanks all involved, wants to talk to Williams about generations. His family has farmed one place for four generations. “I have some concerns about a road as well, but I’m more concerned about the agreements and your concerns about the environment and I share them. I want to see trees transplanted…” “I want to see the soil degradation from the walking paths from the bank erosions fixed”. Thank Mr. Williams “to the nth degree” and “appreciate that he hasn’t come and questioned our government here”.

Bruckler: thanks Mr. Williams for “a very easy to understand explanation”. Agreements also “very easy to understand and very easy to read through”. Appreciate various elements. “I very much respect that work”. Also understand McHattie’s concerns with perhaps lack of consensus at Six Nations but look at that as no different than what takes place at city council.

Pearson: How soon are agreements going to Public Works? Murray: “March”.

McHattie: Letting of contracts, timelines?. Murray: “The next two major contracts will be published the middle of March…decision early May.”

DiIanni: “The monies for those contracts are included in the budget that we’ll be considering in the next few weeks. There will be ample opportunity to debate whether that remains or not, I guess.”

McHattie: “Prevailing opinion in Ward One against the expressway. I share that view.” Two professors have put together an alternative on Highway 20. “That option has not officially been taken to any committee in the City of Hamilton.” Wants opportunity for professors to make brief presentation to this committee. Sought advice of former city manager and Chris Murray and agreed this is the committee it should come to. “I would ask that that be added to the next agenda.”

DiIanni: “I’ll take that as a recommendation and we’ll see what the will of the committee is.”

Mitchell: His impression that these options studied and costed. Asks Murray to confirm. Murray: “Certainly many options were investigated in the 1970s and 1980s and another option looked at by the NDP in the 1990s. The option that the councillor is referring to is a variation on one that was looked at before. It’s not identical, but certainly there has been considerable effort to look at other ways of solving the transportation problems of this community.”

Mitchell: “It’s a variation of what we’ve studied.” Don’t mind listening to it but don’t want to see it delay the road.

McHattie: main intent to bring it forward is a due diligence activity, considerably different from earlier options. Asks committee to at least see the option so it can be said it’s been seen by the City of Hamilton.

DiIanni: “I think staff has looked at this option”

Pearson: “…concern that if that’s the direction it should have been done months or years ago”. “We’re at the point of going to tendering.” Consensus to proceed. Well on our way.

McHattie: “During this term of council, since November, this committee has not met so there’s not been an opportunity to present. I’ve been pursuing that opportunity since that time.” “Meeting of this committee has been put off several times. Dates have been changed several times.” Ask committee to consider this.

DiIanni: asks if there is a seconder. None. McHattie will have opportunity to argue about funding.

Mitchell: Concerned about criticism of committee – some meetings rescheduled because staff has hard time to get people together and shouldn’t be criticized. Notes McHattie was late too.

Intervention from audience: “This committee has not met for seven months.”

DiIanni: Don’t need to apologize for how busy we’ve been or for bringing forward projects to completion. Adjourns meeting with no opportunity (as promised) for public questions or comments.