Peter Rusland’s story on the Bamberton LNG contoversy was originally published in the South Cowichan Echo.
Unanimous opposition by Cowichan’s regional directors to Steelhead LNG’s proposed floating facility off Bamberton is causing plenty of private legal ripples.Those waves could see directors change their minds at their March 9 board meeting.
And debate around this regional ruling could address fears of libel chill here and elsewhere.
At issue is the Cowichan Valley Regional District’s Feb. 10 unanimous decision based on Cowichan Bay Director Lori Iannidinardo’s resolution, seconded by Duncan Director Sharon Jackson.
It reads: “That the CVRD advise Steelhead LNG that the CVRD is opposed to any LNG facility being located at Bamberton, or anywhere else in the regional district.”
The motion passed after board debate surrounding possible ecological damage, public safety risks, climate change, and other regions passing similar resolutions.
CVRD’s environmental services manager, Kate Miller, is not believed to have been publicly involved in the LNG resolution debate.
But debate and the vote was heard by other CVRD brass paid to detect any potential legal fallout about board resolutions.
No cautions were voiced publicly Feb. 10 by CVRD executives, including CAO Brian Carruthers.
However, reports from various private meetings after that decision, made to protect Cowichan from possible harm, tell a different story.
The Echo obtained a private legal option sent Feb. 17 to Carruthers, and planning and development general manager Ross Blackwell, by CVRD lawyer Peter Johnson.
It basically cautions the CVRD against being seen to have made decisions in advance of Steelhead’s land-rezoning application, that has yet to be made.
Johnson suggests a board statement confirming Steelhead’s pending application “will be given due consideration, in accordance with the board’s development approval procedures and the requirements of the Local Government Act, would be beneficial and should provided early in the process.”
Johnson notes since the CVRD expects Steelhead’s rezoning application, directors “should avoid statements of opposition to the application that suggest thy have made a final decision before having considered the application on its merits.”
Carruthers told the Echo “… Neither Ross Blackwell nor I have met with Steelhead LNG and I can’t speak to whether Steelhead has met with other staff.”
“… CVRD staff meet with individuals and companies on a daily basis to discuss various application processes.”
Johnson cites case law showing elected officials can hold and express opinions about community issues.
“However, when the board’s legislative decision-making functions are engaged, board members must be careful to avoid statements that are suggestive of having a closed mind.”
Iannidinardo may have overstepped that line when commenting to a radio station about the board’s anti-LNG ruling.
Iannidinardo got a legal opinion Feb. 24 from her lawyer, Jack Woodward.
“I feel angry, disappointed, and sad,” she said.
“I absolutely believe I’ve done nothing wrong. I always remain open-minded on everything.”
Woodward explains fairness by elected folks “goes without saying.”
And Woodward argues with Johnson’s view, saying “an ameliorating statement” to Steelhead from the board is unnecessary.
Pulling from the same case law Johnson cites, Woodward states “politicians like yourself (Iannidinardo) are protected by the courts in having the freedom to make political decisions and represent the people who elected them.”
Furthermore, legal rules against bias are “partially relaxed for politicians who are entitled, even encouraged, to express their views robustly in the public forum.
“Some degree of pre-judgement is inherent in the role of a councillor.”
Woodward notes Steelhead had made no formal application, and may or may not.
If they do, directors must basically keep open minds, despite their Feb. 10 resolution opposing LNG here.
“The resolution you passed is an expression of your views as an elected politician. You can’t be muzzled. Be fearless.
“If Steelhead makes an application to the board, you must review the application on its own merits and express no bias against Steelhead,” Woodward advises Iannidinardo.
Richard Hughes, a former Cobble Hill director, was blunt in his suspicions.
“There is a great deal of effort and expense going into CAO Brian Carruthers and board chairman Jon Lefebure’s freak out over the board’s unanimous motion opposing LNG facilities proposed at Bamberton, or anywhere else in the CVRD.
Hughes claims Carruthers and Lefebure publicly stated they were seeking a legal opinion.
“The legal opinion has been billed to the citizens of Cowichan. Why did they seek an opinion, and why hasn’t it been made public?”
Carruthers and Lefebure said they could not comment about: what’s said in private meetings; if and why the CVRD may have gotten a legal opinion about the LNG resolution; if they or staff made promises to Steelhead; if Steelhead has threatened legal action; or if environment minister Mary Polak mentioned CVRD’s LNG opposition ruling when she met privately with directors Feb. 12 in Duncan.