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MEMO

TO:

Squamish Nation Chiefs and Council

FROM:

Richard Baker

DATE:

March 30, 2016

RE:

Porteau Cove Lands

At the last Chiefs and Council meeting we discussed a legal opinion I asked my lawyer
to prepare about the Porteau Cove Lands (the Lands), why we lost them, whether
Ratcliff & Company LLP (Ratcliff) made a mistake, and what I as a Councillor am
obligated to do as a result. For the past few weeks, I have been following all proper
processes as a Councillor and want to set this out for the record. I also want to stress
the vital importance of this matter and why we should act now as Chiefs and Council to
look into this matter and get a formal legal opinion.
1.

The Steps I Took

Since getting the update memo from Ratcliff on February 17, 2016 (the Memo), here is
what I did:
(a)

I asked why we lost the Porteau Cove Lands and why, as the Memo
states, that our business partners recommended (as did Ratcliff) that we
abandon the arbitration and give up the fight for the Lands. We voted that
day to approve that but without details as to why we lost the Lands.

(b)

I phoned Jack Matthews and asked him directly. He told me that the
partners commissioned a report that answered that last year and gave that
report to our own staff, including Councillor Chris who is on the
partnership management committee.

MEMO
(c)

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I then asked Chris for the report as he is on Council with us. Chris then
gave it to the two Co-Chairs but not to me.

(d)

After several requests to the two Co-Chairs, and after some delay, we
were then able to read it but not getting a copy.

(e)

Then later, late in the day on March 18, 2016 over a month after the
Ratcliff Memo was reviewed, I was given a copy of the report which turned
out to be a legal opinion (Opinion) from Ms. Wendy Baker, Q.C. at Miller
Thompson dated September 9, 2015.

(f)

I was told that our own staff had that Opinion for almost five months and
we as a Council were never informed of this or its contents.

(g)

I immediately gave that Opinion to my own lawyer and asked him for his
view of it, the Memo, as well as my duties as a Councillor. I also gave my
lawyer our Governance Manual to review.

(h)

I did not divulge this information to anyone other than to members of


Chiefs and Council.

(i)

My lawyer said that based on the Opinion and the Memo, it appears that
Ratcliff was at fault and thats why we lost the lands. He also said that I
have a duty to let the rest of Council know and to recommend that we take
Ratcliff off the Porteau Cove Lands file and look into this in more detail.
Unfortunately, most of you said that I was wrong to raise this, that I had
not followed proper process, or that I should just leave it alone. I was
frustrated by that because I didnt do anything wrong but was just trying to
do my job as a Councillor.

MEMO
2.

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I Followed the Governance Manual

The Squamish Nation Governance Manual (Manual) has detailed procedures for me to
follow and specific duties I have to live up to.
(a)

My responsibilities were described for me in a memo from my lawyer


about duties of Councillors that I gave you.

The same duties are

described in section 4.1 of the Manual:

to represent the membership ensuring that the best and collective


interests of the Squamish Nation are met;

respect confidentiality;

fulfill the legal and fiduciary obligations of a Councillor;

advise Co-Chair(s) in advance of introducing significant and


previously unknown information at a Chiefs and Council meeting;

govern as a collective leadership;

(I followed every one of these, including getting Deborah Baker to let the
Co-Chairs know about this issue in advance of the Council meeting.)
(b)

I am also obligated to identify risks to the Nation, section 2.5 Risk


Oversight in the Manual says that I have to identify and raise any
possibility or event that will hurt our Nation including a financial or other
loss, such as the loss of hundreds of millions of dollars of Porteau Cove
Lands profits for no good reason. This section obligates me to identify
and analyze principal risks to the Nation and seek managements
recommendations around the development of appropriate responses to
those risks. That is why I got my own lawyer. No one else was doing

MEMO

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that and our own lawyer and our own staff were not giving us real answers
to why we lost those lands. With my limited education, why should I be
the one to raise these risks to the Nation?
So I followed the Manual to the letter and so did Councillor Deborah Baker. In fact, we
took the Manual seriously in terms of our duties and we very much hope that all of
Council does the same.
3.

Response to Comments
(a)

Council didnt commission this. Of course Council didnt ask DLA Piper
(Canada) LLP to look at this but I did. I am perfectly entitled to ask my
own lawyer about the information I am given as a Councillor and get help
to be the best Councillor I can possibly be under very trying
circumstances.

Yet I am providing this review to all Council for

discussions with you. What I am recommending is that Council does in


fact commission a lawyer to review this in more detail, review the file, and
provide a formal opinion. That is all.
(b)

I didnt follow proper process. I absolutely followed proper process. I


asked our business partner who then sent me to Chris.
forwarded the Opinion to the Co-Chairs.

He then

When I sought to raise my

concerns, Deborah raised it first with the Co-Chairs by email and sought
their permission to discuss it as an agenda item. I then provided Mr.
McDonalds preliminary opinion to all Councillors. There is nothing in what
I did that breached any proper process for Council.
(c)

Mr. McDonald is just looking for a job. Mr. McDonald is my lawyer and
he suggests that a law firm should take over the Porteau Cover Lands
matter from Ratcliff and prepare a thorough opinion as to whether they
made a mistake or were negligent. This has to be done by any good law

MEMO

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firm as soon as possible.

There is nothing in what I said or in Mr.

McDonalds letter that says it has to be him or his law firm. The fact is that
Ratcliff may have messed up where we lost out on millions and if Ratcliff
did mess up then their insurance should cover some of our losses. At
least lets look into that!
4.

Recommendation

I recommend that Council pass a motion to remove Ratcliff from the Porteau Cove
Lands file, that a law firm be retained to review the file and prepare a formal opinion on
Ratcliffs potential negligence and advise the whole of Council as to its options as soon
as possible. If we do not do this immediately, I am seriously concerned about not
fulfilling our fiduciary duty to the Nation and breaching our own Goverance Manual as
Chiefs and Council.