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 yo 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
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:
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.”
“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.
Jack Woodward, QC[/quote]
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.
20 thoughts on “Politicians shouldn’t be cowed into keeping mum on Saanich LNG project, says eminent lawyer”
Why is the Planning Director giving legal advice to Council? Why is Council not hearing directly from in-house legal counsel, if any real legal concern exists? Of course Council can express their reaction to the idea of a local LNG plant. After all, what they have seen is the equivalent of a fancy and expensive press release. This in no way restricts their ability to judge the formal proposal when it finally shows up, as Jack Woodward outlines in his letter.
Turning down projects seems to result in our Governments getting sued, ie NAFTA challenges such as Bilcon, Lone Pine, Windstream.
Look at all of the grassroots fights that have occurred throughout history. If we didnt take a stand against LNG then where would it stop? Seems like the planning manager at the cowichan valley regional district doesnt realize that this is 2016 not the 1950’s.
It is infuriating that tax dollars, the time of elected officials and of the public continue to be wasted to comment on project proposals that should be dead in the water given the commitments made in the Paris Climate Agreement. We need to be steaming full speed ahead towards a fossil fuel-free future and not get sidetracked on projects like Steelhead, Woodfibre, the PETRONAS plant on Lelu Island, pipelines, etc. As Naomi Klein says: we have no time to waste.
The Planning Manager Ross Blackwell at the Cowichan Valley Regional District seems to have the region in a mess. LNG is just one of many issues that the planning department cant handle. Its unfortunate that one man can taint the entire region.
I think its important to get this news out to main stream papers before LNG really puts the pressure on these poor staffers at the CVRD. Unfortunately they cant seem to deal with large industry proponents. They need a bit of a nudge .
I worked on the Mount Hayes (MH) project and to compare that to the phantom proposal by Steelhead is one huge stretch. The MH project is well up in the mountains, 1000′ above sea level and the road accessing the site is on average an 8% grade! MH is more than 5km as the crow flies from Ladysmith. The MH site and the Steelhead site is yet another apples to oranges false comparison. As an example the community of Brentwood Bay is closer to the the Steelhead site than Ladysmith to the Mount Hayes site.
The Mount Hayes site has no need for a “floating” large scale industrial plant, nor any need for docking facilities, MH has no noise or light pollution that impacts others enjoyment of life, its purpose is to store natural gas in a liquid form in order to respond to disruptions of gas delivery service from the BC mainland to Vancouver Island residents and businesses.
Steelhead will not provide gas to Island residents and businesses and its only purpose is to provide a small amount of jobs locally but for the most part its purpose is to benefit other economies overseas while providing nice returns to its owners. To suggest Steelhead is a local company without mentioning its partners from the US and Europe and elsewhere appears to be disingenuous at best.
Can’t wait to see Steelhead’s project submission to the variety of assessment authorities as well as Williams submission to FERC in the US. Last time Williams wanted to build this pipeline they received hard opposition from Whatcom County residents in Washington State. I relish the opportunity to intervene against the project.
The CVRD resolution was about opposition to any LNG project in the area, not specifically the Steelhead project. Which seems reasonable.
After reading a blog administered by Cowichans Richard Hughes I am appalled by the process at the Cowichan Valley Regional District. Looks like staff have overstepped their roles by interfering with the political process? This would never never occur in Vancouver, Victoria or any major centre. (maybe Montreal)
The electorate is clearly upset over this issue. I hope this garners some national attention.
They aren’t “staff”. They are elected officials.
Bonnie, the staff involved are dictating to the elected officials – or shall I say STRONGLY SUGGESTING – how they should vote and act. They may be doing this out of the best intentions, but it does raise important democratic questions about the respective roles of staff and elected officials in governing a regional district where game-changing issues like LNG are involved.
Thats right Damien, from what I have heard staff are in some hot water over this – if you look at Richard Hughes blog out of Duncan you can see the anger coming from the electorate. many are asking for some staff resignations. They truly may have had good intentions but unfortunately the court of public opinion has deemed them guilty.
What does the electorate think about an LNG plant in the area?
I guess we’ll find out soon enough. Bear in mind LNG was a hugely defining issue in this last round of municipal elections in places like Howe Sound. Squamish, in particular, saw a regime change over the issue, with those who backed LNG being shown the door by the electorate in favour of a mayor and councillors who had spoken out against the proposed Woodfibre project.
Check out this stunning letter from Steelhead to the CVRD demanding the ENTIRE CVRD Board recuse itself from future consideration or any decision making on their LNG project!
Ive read the blog that is locally administered by Richard Hughes. There seems to be some controversy between senior staff, the electorate and the Directors that represent them. I predict this will soon make national headlines , I hope so because after reading some of the actions by senior staff at the Cowichan Valley Regional District , national attention is required.
This blowhard from Steelhead seems to think it outrageous that these people can have an opinion about LNG without talking first with him, the arrogance is astounding!
My opinion is that if these people, Steelhead and Malahat reps. are stupid enough, in this environment, to invest their time and money in this folly then all the power to them. This doesn’t mean the rest of us should be so stupid.
It should be pointed out to them I guess that this is all a badly thought out scheme and a Christy Clark badly thought out scheme too boot!
It boggles the mind.
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