Good Sunday Morning – March 17

Good Sunday Morning!

Top of the morning to you, and Happy Saint Patrick’s Day! 

Yesterday I got a jump on being Irish with a pub event in Charlottetown with the PEI Greens. I could not imagine loving anyone more than Peter Bevan Baker–other than my husband of course! But you know what I mean. Peter is a saint of a man and he also blows a mean trumpet. My highest high as a Green is marching into any room with Peter playing “When the Saints go marching in!”

I spent all day Friday in and out of different classrooms, seminars and one large lecture hall at my alma mater, Dalhousie University School of Law. Waves of nostalgia have influenced my Sunday letter caused by my grief over losing a brilliant environmental lawyer and prof at Dal Law who championed environmental assessment law. I had not been back to Halifax since 2022, when far too young, Meinhard Doelle was tragically killed by a car as he rode his bicycle along the country road where he lived.

The hole that is left when someone amazing is ripped out of the fabric of a place is greater in a smaller community. Vancouver has a lot of great environmental lawyers, and each one is precious. The environmental law community for all of Nova Scotia is much smaller. The fabric is ruined, and the hole remains gaping. The loss is immeasurable. In the October 2023 Supreme Court of Canada reference case on federal environmental assessment law, Meinhard’s articles are cited as authorities. That reference case found that the environmental impact assessment law–as wrecked by Harper and maintained as a wreck by the subsequent Liberals–was in part unconstitutional. As you may remember, I cheered for that decision in hopes we could finally restore the environmental assessment regime we once had. It was under that law that the Bilcon project for Digby Neck was rejected. As I lectured Friday on my private member’s bill C-226 to create a federal programme in environmental justice, I was remembering Meinhard’s role in one particular case. Back in 2004, when I was Executive Director of Sierra Club of Canada, one of our major national campaigns was the fight to protect a sensitive area of the Bay of Fundy, key habitat for endangered Right Whales. The little village of Digby Neck was threatened by a multinational mining company. Bilcon of New Jersey wanted permits to build a large container port to ship basalt to build highways in the US. The plan was for an open pit mine along the backbone of that costal reach of rock, along the sensitive lobster fishing grounds of what we Nova Scotians call our French shore. 

Local activists enlisted the help of the U.S. Sierra Club as well. From our Ottawa office we launched a citizens’ campaign to demand a full panel review of the plan under the environmental assessment law that operated at the time–the law passed under the Mulroney government.

Thanks to a nice bit of serendipity, the federal fisheries minister, Robert Thibeault, was also the local MP. The lobster fishers knew how to get his attention. He negotiated with the province a joint federal-provincial environmental assessment panel chaired by one of Nova Scotia’s leading scientists, a regular favourite of CBC Halifax, the late Dr. Robert Fournier. His reputation as a renowned oceanographer set the panel up for credibility and success. The panel and the environmental group intervenors had top notch scientists–not so much proponent Bilcon. It could not find any expert witnesses with knowledge of endangered whales to assist their efforts. They hired a freshwater biologist. Undeterred by the lack of any science to support the viability of their proposal, Bilcon continued to plow ahead. As one local fisher recalled, Bilcon treated the local population as if they had the brain of an amoeba. They were supposed to roll over. Permits were assumed. 

Throughout the process, Bilcon relied on its deep pockets. As Meinhard recalled in one of his blogs about the fight to protect Digby Neck, in his long career as an expert witness, lawyer and participant in many environmental reviews, he had never encountered a proponent that just assumed a right to proceed–regardless of environmental or societal damage. Bilcon never evinced any interest in compromise or adjustment in siting or scale. Amoebas would just be swept aside.

That case was the first time in the many decades of Canadian EA reviews that a project was found to be so bad that its negative impacts could not be mitigated. Under the Progressive Conservative government of Nova Scotia and with Conservative federal environment minister John Baird, the project was flat out rejected. Hallelujah. But the story continued…back to Bilcon and deep pockets. By 2006, when the panel ultimately ruled that the project was so bad that there were no measures that could be taken to mitigate the damage, Bilcon announced that it would file a complaint under the investor-state protection provisions of Chapter 11 of NAFTA. Those provisions no longer exist as a result of Chrystia Freeland’s renegotiation of NAFTA but they existed in 2006 and Bilcon announced it would seek damages against Canada for rejecting the mine, quarry and industrial port.

Then Bilcon found an expert to put on the payroll. I am still deeply shocked that someone I regarded as a friend and a person of integrity, Murray Rankin, became the hired gun for Bilcon. At the time he took the assignment he was not yet an MP, but then Denise Savoie retired. In the fall 2012 by-election, our Green candidate, Donald Galloway, nearly won but Murray edged him out and the NDP took the seat. At that point Murray should have told Bilcon that he could not continue as their contracted expert, but amazingly, he didn’t. As a sitting Member of Parliament, he submitted a 78-page legal opinion to the effect that the Joint Review Panel was unfair to Bilcon.

As a matter of law, if the panel had been unfair to Bilcon, the normal procedure would be to seek judicial review before federal court. Such a process would be open, and fishers and environmentalists could also have intervened, but the Chapter 11 of NAFTA process was entirely secret. It was not until 2015 when the secret arbitration process concluded, ruling 2-1 that Canada owed Bilcon millions, that it became public knowledge that Bilcon’s expert was none other than Murray Rankin. That as a sitting MP he testified for four days making the case that Canada had been unfair in denying the permits was appalling. Honestly, I am still not over the shock. Reporters asked Murray how much he had been paid by Bilcon. I maintain it must have violated his oath of office as an MP, which at the time was, “I, (Member’s name), do swear, that I will be faithful and bear true Allegiance to Her Majesty Queen Elizabeth the Second.” How can you testify for a foreign corporation suing your government for millions while bearing allegiance to your country? I raised this with our former Ethics Commissioner, the late Mary Dawson. Turns out there is a rather large loophole. Ms. Dawson ruled that as an MP, Mr. Rankin was still allowed to work as a lawyer. Meanwhile when asked how much he was paid, he demurred. He always gave the same reply–that he was paid his normal hourly rate. To which one would want to know how much he is paid per hour and how many hours did he spend writing and researching his 78-page opinion, preparing for and appearing on the stand for four days. 

I wonder. He claimed the panel’s ruling that the project was significantly damaging for the environment and specifically to the survival of the endangered Right Whale was the result of bias. More specifically, he found that the panel’s conclusion that the project failed to consider “community values” was beyond the scope of the assessment as community values were not specifically mentioned in the federal law. But as Meinhard’s legal review underscored, this was a federal-provincial joint review and the Nova Scotia act specifically called for consideration of community values.

The controversy was detailed in this article by fabulous Victoria journalist Judith Lavoie, published May 2, 2020. Murray Rankin v. Canada 

And here is one of the articles written by Meinhard Doelle about how Murray Rankin was wrong in law. Voters in Oak Bay-Gordon Head are entitled to know how he explains his paid gig against Canada. All these years later, the question remains unanswered. The Bilcon NAFTA Tribunal: A Clash of Investor Protection and Sustainability-Based Environmental Assessments

I look forward to being back in the House tomorrow and will be testifying about my Environmental Justice Bill on Tuesday, sending love and thanks!! Any help asking these questions of now BC Cabinet Minister Rankin would be much appreciated.