HST decision a victory for direct democracy

Armchair Mayor column for The Kamloops Daily News, Saturday, Aug. 21, 2010

Chalk one up for direct democracy.

Not everybody’s a fan of direct democracy, including MLA Terry Lake, who said so recently.

The comment was in connection with the anti-HST petition, which won big in court on Friday. And the decision by B.C. Supreme Court Chief Justice Robert Bauman says, in effect, that if we’re going to legislate a direct democracy process, those who avail themselves of it deserve latitude.

Perfection isn’t part of the direct democracy vocabulary. It is, by its nature, clumsy and sometimes obstructive.

Bauman (his written judgment is there in full on the Internet for anyone who enjoys wading through such things) rejects the argument of a business coalition that the petition should be ruled invalid. The coalition claimed the HST is outside the jurisdiction of the provincial government.

“That is not the test,” writes Bauman. Several paragraphs later, he adds, “But whether the draft Bill, however it may or may not be finally worded in adopted legislation, will be effective in its stated purpose of extinguishing the HST, is not the question to be answered. . . To reiterate, that question is whether the Bill is with respect to any matter within the jurisdiction of the Legislature, and . . . it clearly is.” 

In other words, once Elections B.C. approves a petition as properly submitted, it must go to the legislative committee (currently chaired by Lake) set up to deal with it, period. It’s for the legislature to decide the outcome, not a judge.

This is a lesson in manners for chief electoral officer Craig James, who declined to forward the petition to Lake until Bauman dealt with it, and a slap in the face to the six business organizations that took the thing to court.

Many viewed the legal challenge as the corporations using deep pockets to thwart the wishes of everyday British Columbians. In truth, businesses back the HST for practical reasons, but sometimes perception trumps valor.

* * *

If Ruth Madsen loses her appeal against the Aboriginal Cogeneration Corp. environmental permit — and I suspect she will — it won’t be for lack of help from the B.C. Environmental Appeal Board.

Yesterday afternoon, the board went along with another missed deadline from Madsen. Not only that, it gave her three more months to get her act together.

This appeal has been a calamity of errors from the beginning. Let’s review, shall we?

In February of this year, Madsen sent notice to the appeal board that the Thompson Institute of Environmental Studies intended to appeal ACC’s permit to build a gasification project.

The Thompson Institute of Environmental Studies did not exist.

She filed the appeal after the deadline.

She was late with the fee.

The appeal board concluded Madsen’s appeal was “deficient.” Nevertheless, she was given an extension, to March 2, to fix it. Board chairman Alan Andison acknowledged Madsen — who has been involved in environmental issues for decades — was “inexperienced.”

The B.C. government legal services branch said Madsen had no grounds for an appeal and asked the appeal board to dismiss her application. The board demurred.

After a raucous public meeting March 11, ACC president Kim Sigurdson pulled the plug, saying he’d move the project elsewhere. Madsen said she’d appeal the permit anyway. ACC, on the other hand, said it would not give up the permit.

The appeal board accepted Madsen’s revised application — under her own name — and set a five-day hearing starting Sept. 13.

During the summer, Madsen asked the board to add seven more days to the hearing. The board said it would wait to decide based on the amount of material that would have to be dealt with.

Madsen decided to go looking for a lawyer. In early July, she talked to Glen W. Bell, who has a law firm in Vancouver and who apparently has some experience in environmental appeals.

Bell told her he’d like to do it, but couldn’t commit due to a serious medical issue. On Aug. 10, after emerging from a stay in hospital, he agreed to take the case.

On Aug. 11, he wrote the Environmental Appeal Board asking for a three-month delay, citing lack of preparation time.

He didn’t fax the letter to the appeal board in Victoria until five days later, on Aug. 16, the deadline day for receipt of Madsen’s documentation backing up her application.

Instead of rejecting the request out of hand and reminding Bell and Madsen that she had had more than six months to get her act together, Andison again gave Madsen an out. He gave Sigurdson and lawyer Dennis Doyle of the legal services branch until Wednesday to respond to Bell’s request.

Bell would then have until Thursday to counter.  Friday, a letter went out from Andison saying a postponement is the best way to assure fairness. Assuring fairness, it seems, includes letting an applicant set her own timetable while the proponent must sit around and wait.

Since the appeal board has yet to enforce a rule with respect to this application, one wonders why it bothers having any.

mrothenburger@kamloopsnews.ca

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