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Politicians Shouldn’t Be Cowed Into Keeping Mum on Saanich LNG Project, Says Eminent Lawyer

Richard 'Hub' HughesDamien Gillis has stepped up and posted this article in the Commonsense Canadian.

Our Cowichan Valley challenge is to turn back the slick frontmen promoters from Steelhead LNG who want to build a massive floating LNG facility off Bamberton in the Saanich Inlet.

This has put us on the map along with Lelu Island, and Woodfibre LNG in Howe Sound as hot spots of protest along the BC Coast.

 by Damien Gillis — originally posted in the Commonsense Canadian

 

Politicians-shouldnt-be-cowed-into-keeping-mum-on-Saanich-LNG-project-says-esteemed-lawyer

Artist’s rendering of proposed floating LNG terminal in Saaninch Inlet – Malahat LNG

A battle is brewing in Saanich Inlet over a proposed floating LNG terminal – long before the proponent, Steelhead LNG, has even filed its formal application. In recent weeks, an increasingly bizarre controversy has erupted over whether or not elected Cowichan Valley Regional District (CVRD) directors have the right to express their opinion on the project at this early stage.

The controversy was boiled over last month after the CVRD unanimously passed a motion put forth by district director Lori Iannidinardo to oppose the project, citing concerns surrounding air quality and shipping lanes near the region’s population (see video of motion and vote).

Keep your opinions to yourselves, directors warned

The vote was met with warnings from Ross Blackwell, General Manager of the CVRD Planning and Development Department, as documented by the local blog Cowichan Conversations. Mr. Blackwell appears to have drawn his position from an internal legal opinion issued by CVRD Legal Counsel Peter Johnson. On this basis, Blackwell cautioned elected directors not take a public position on the project before reviewing a formal application by the proponent – or they could face legal challenges down the road.

The district staff cite several court rulings – including Save Richmond Farmland Society v. Richmond (Township) and Old St. Boniface Residents Assn. Inc. v. Winnipeg (City) – in defence of their argument that directors must maintain an “open mind” towards the project until staff has formally reviewed the proponent’s application, forwarded its recommendations to elected officials, and those directors have had time to issue a carefully considered decision.

The stuff of local politics

CVRD Director Lori Iannidinardo

CVRD Director Lori Iannidinardo

To some directors and local pundits, though, this has come across as anti-democratic fear-mongering. As Cowichan Conversations publisher and former regional director Richard Hughes puts it: “Speaking out on issues is the stuff and substance of local politics. It is the responsibility of our elected officials to respond and take positions on issues pending, or in play.”

Into this political and legal morass has now waded eminent lawyer Jack Woodward (lead counsel on the famed Tsilhqot’in case). In response to a query from Director Iannidinardo, Woodward recently penned the following letter – which addresses a letter written by Peter Johnson, containing his legal opinion on the matter. Woodward’s response letter is republished here from Cowichan Conversations:

Lori, the issue Mr. Johnson’s letter deals with is bias, namely, whether the Board has expressed such a degree of bias that an application by Steelhead could never be given a fair hearing. Mr. Johnson takes a timid approach, and at the end of his letter Mr. Johnson suggests you patch things up with some kind of ameliorating statement from the Board, perhaps along the lines of: “I know we said we oppose the project, but we would still give you a fair hearing if you make an application.” I don’t think Mr. Johnson’s advice is correct on this point. An ameliorating statement is not necessary, because fairness goes without saying.

A judge doesn’t start a trial by saying: “I will give you a fair trial.”

But more importantly, I don’t think Mr. Johnson’s letter adequately presents another, very important part of the law, namely, that politicians like yourself are protected by the courts in having the freedom to make political decisions and represent the people who elected them.

In both the Old St. Boniface case and the Save Richmond Farmland case, the very cases referred to by Mr. Johnson, the council’s zoning decision was upheld by the courts despite earlier statements that were said to indicate bias.

Those cases both stand for the proposition that you are entitled to your opinions, and you are entitled to express those opinions. It is surprising to see those two cases referred to in a letter which is basically telling you the opposite.

According to the law, the rule against bias is partially relaxed for politicians like yourself who are entitled, even encouraged, to express their views robustly in the public forum. Consider these words of the Supreme Court of Canada’s decision in the Old St. Boniface case (the same decision that Mr. Johnson referred to):

“I must assume that the Legislature was aware that in this capacity the members of Council will have fought an election in which the matter upon which they are called upon to decide may have been debated and on which the would-be councillors may have taken a stand some pro and some con.

Indeed, the election of a particular councillor may have depended on the position taken…In the course of this process, a councillor can and often does take a stand either for or against the development…Accordingly, it could not have been intended by the Legislature that this rule [bias] applies to members of Council with the same force as in the case of other tribunals whose character and functions more closely resemble those of a court.”

and further:

“some degree of pre-judgment is inherent in the role of a councillor.”

Lori, this is a free and democratic country. You have been elected to serve the people. You are entitled to express your views. The resolution you passed is an expression of your views as an elected politician. Our country fought wars to protect your right to express such views. 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.

Everyone has to be treated fairly, even Steelhead. But no application has been made, and you don’t know for sure if an application will ever be made.

You have done Steelhead a favour by telling them where you stand on LNG. If they make an application, you have to consider it fairly, on the merits, once you have read it and considered what they have to say. Until then you don’t have to worry.

I hope this helps. Don’t hesitate to contact me with any further questions.

Regards,

Jack Woodward, QC

Issue heating up

Since the back-and-forth over the CVRD vote, several directors have shown signs of softening on their opposition to the project, while others are doubling down. And, again, considering Steelhead LNG has yet to file its application, we’ve seen nothing yet. Expect Saanich Inlet to join Howe Sound and Lelu Island on a growing list of heated regional battles over the province’s LNG vision.

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About the Author

Damien Gillis

 

Damien Gillis is a Vancouver-based documentary filmmaker with a focus on environmental and social justice issues – especially relating to water, energy, and saving Canada’s wild salmon – working with many environmental organizations in BC and around the world. He is the co-founder, along with Rafe Mair, of The Common Sense Canadian, and a board member of both the BC Environmental Network and the Haig-Brown Institute.

 

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19 comments to Politicians Shouldn’t Be Cowed Into Keeping Mum on Saanich LNG Project, Says Eminent Lawyer

  • Keith A. Williams

    At the Board meeting Wednesday night, Chair J. Lefebure clearly stated at one point; ‘there have been pre-application meetings (i am not sure if he added ‘with Steelhead’ or not)’. Check the transcript. My feeling when he said it was that it was inserted quickly and in subtle fashion, in order to make sure that that admission was now on record. Correct me please if i am wrong.

    • The unanimous vote opposed to LNG facilities locating in the region withstood the circus that followed last months motion to do so. 1 month of disruption, distraction and deception. Recall that the CVRD also hired a lawyer who failed to say what they wanted and that was the Directors did not do anything wrong, far from it.

      There should be an official apology issued to the one Director, Lori Iannidanardo, who stood her ground and withstood senior management interference. Without her courage efforts to recind the official rejection of LNG facilities may have succeeded.

      • Sandy Waters

        The Chair needs to step down. They need to do some damage control.Sounds like the CAO and his planning man are way way over their heads.

        • Ben Ziggler

          Sandy, of course they are over their heads, the amount of suspicion they generate is unprecedented and it speaks to their incompetence. Yet we still pay them in excess of 400 000 per year. If you or I were receiving this type of feedback from so many people do you think we would still be in our jobs?

          I make in excess of 80 000 per year and by god I work for it. If I caused this type of reaction from thousands of people I would be let go immediately.

          • William Bradshaw

            Ben, agreed.

            But this is local government where accountability is not a requirement. Something strange is happening at the CVRD, the entire District is in turmoil, Shawnigan, LNG, Economic development, the approval of the Sunfest, constant losses in the courts, lawyers fees, staff morale and its not going to end. The entire area is turning into a mess and fingers are pointing and memories are long

  • many on here

    I can tell you that I am not part of this area but have been watching this conversation very closely. I can tell you that if you google local government lmg one of the first items that appears is this site. So delicious to read yet not palatable for your electorate.
    I hope you people really nail these guys who seem to be afraid of lng.

  • Taxpayer #3

    I would like to know who is is lying to the electorate:

    Is it Blackwell or Caruthers?

    Or is it a Director?

  • Sharon Jackson

    taxpayer3, please ask Matteus Clement to clarify. He should be able to clear up the confusion, since he seems to be in the know. I am clearly not.

  • Planning Patsy

    Oh yes, this issue will not go away, as far as Im concerned this is just one canary that has died in the coalmine. LNG needs to be handled with integrity and the Directors that seemed to have taken the planning managers advice and the CAO- well, your fate in the next election has been sealed. Sorry, too big an issue for you to rescind your vote. These staffers are just high paid government employees who think they can dictate the terms of your political appointment! The electroate can see it and most of the folks I know have made up their minds.

  • Mia Forte

    Absurd!

    LNG must know that they are not welcome here and its the Directors job to mirror the electorates wishes. I fear that two staffers are influencing some(not all) of the Directors. Someone on this blog stated, the tail wagging the dog.

    If Caruthers and Blackwell have the audacity to influence these Directors and then stretch the truth re: their involvement with LNG then we are in serious trouble.

    They need to be removed from the file. Oh, and by the way, the Directors that posted their comments on this blog with their own video and obvous support of the “process,” word on the street sais you are unelectable next election.

  • Sharon Jackson

    As the alternate director for Duncan that night, I still stand firmly in support of the unanimous decision and in opposition to any such LNG terminal in the Saanich Inlet. Until it is proven otherwise, I think the idea is completely insane. It would blight the inlet forever.

    • taxpayer 3

      Hi Sharon, great! Thank-you for coming out and supporting the electorate.

      There seems to be an issue about the planning manager having a private converation with LNG. One of the Directors stated in his video that this did not occur yet your CAO stated publicly that no staff met with LNG.

      Please clarify.

  • Patrick Mann

    Thanks to the planning manager we are making headlines across the province, shawnigan lake, lng, what next?

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