Bats in the Belfry, Part lIl: Are Environmental Review Tribunal Members Impartial?

This is the third in the series that examines the ERT (Environmental Review Tribunal) and in the process, a few of their current members.

One member of the ERT, Mr. Jerry DeMarco, was appointed in the summer of 2005 by MPP Laurel Broten, Minister of the Environment. At that time Mr. DeMarco appears to have been employedby the Sierra Legal Defence Fund. DeMarco’s short biography on the Public Appointments Secretariat (PAS) website indicates his employment with the Sierra Legal Defence Fund (SLDF–now Ecojustice) was from “1996-2004”. There appears to be a year missing in the time-line of Mr. DeMarco’s employment history. Is the bio posted on PAS wrong; as the September 2005 SLDF newsletter congratulated him on winning a “City of Toronto environmental award”? An error of that type seems strange considering it still exists 7 years after his appointment and reappointment after his first three year stint. Mr. DeMarco is listed on the PAS registry as both the Associate Chair of the ERT and as the alternate Executive Chair of the Environment and Lands Tribunal (ELTO).

Mr. DeMarco has fought deforestation, to save bird nests and co-authored a book (written for lawyers) with Paul Muldoon (see Part II), “Environmental Boards and Tribunals in Canada-A Practical Guide”. Also as Associate Chair of the ERT he was a conference speaker in Atlantic Canada where his lecture was on: “This Learning Network will allow ENGO leaders to explore some practical approaches and strategies for effective collaboration.” Now, I am no lawyer but, at first glance the foregoing appears to be a drift into a conflict situation. One wonders if Mr. DeMarco has ever lectured some of the poor appellants that appear before him at the ERT hearings on how to deal with tribunals? I also personally wonder how conflicted he must be when he rules on matters of harm; both to humans and to the killing of birds and bats by industrial wind turbines? In the past he was reputedly trying to save bird nests and now he is adjudicating on licences granted to kill the birds hatched in those nests, huh?


DeMarco’s prior employer, Ecojustice, is a registered charity that Ezra Levant of Sun News took a run at; pointing out; Ecojustice (with annual revenues of $5 million) is supported by foreign interests, challenge provincial and federal governments through the courts, and 17 of lawyers on their staff are listed as Federal lobbyists. Ecojustice are not registered lobbyists in Ontario, but, they do lobby both individually and jointlywith other groups including Environmental Defence (Rick Smith) and ForestEthics (an offshoot of Tides Canada) as well as CELA and Greenpeace whom they teamed up with quite recently. They asked the Federal Court to revoke the OPG licence to prevent them from preparing the site (Darlington) where proposed new nuclear reactors are to be built.

Ecojustice report a staff of 56 in their October 31, 2011 annual report and almost $3 million in compensation expenses. Makes one wonder how they got the “charity” status blessing from the CRA? Was it based on support for poor lawyers?

Ecojustice claim it is “a national charitable organization dedicated to defending Canadians’ right to a healthy environment.” and also claim they “are an independent organization and 100 percent of our funding is provided by our generous donors.”

On the latter point Ecojustice received grants from; Trillium Foundation-$102K, Friends of the Greenbelt-$173K (both Ontario taxpayer owned foundations) and received grants from the Law Foundation of Ontario (LFO)-$473K over the past few years. NB: The latter obtains its funding from interest earned on lawyers “trust accounts” ($32.5 million in 2011) and pass 75% of it to “Legal Aid” which is “the provincial government agency that provides legal assistance to low-income Ontarians.” A similar organization, the Law Foundation of British Columbia in the last 3 years granted over $700K to Ecojustice. Also noted in Part II of this series, CELA got a big chunk of these Ontario Legal Aid funds which they used to support the ENGOs and not the “low-income Ontarians”. Environmental Defence also received grants from the LFO as has CELA on a direct basis rather then via Legal Aid.

Ecojustice also tap into their environmental friends at the Ivey Foundation-$550K over the past several years (Bruce Lourie is the CEO and President), and the Catherine Donnelly Foundation (David Love is a Board member [he is Executive Director of the publicly owned Conservation Foundation of Toronto] and sits on a Ivey Foundation Board) recently granted Ecojustice $1 million. Mr. Love was a past Board member (2004 & 2005) of Ecojustice. Ecojustice also have three different arms of the Tides Foundation listed as funders (Bruce Lourie is a member of the Tide’s “Energy Initiative Advisory Board”). The foregoing are all registered charities (except for the “Law Foundations” who are non-profit) who recycle tax dollar and their benefits to other charities. On the surface it certainly looks like those “generous donors” are friendly foundations, some taxpayer owned and others professionally related of whom two purport to use funds for “low income defendants” in the court systems of Ontario and B.C.

Often the irony of the words uttered by spokespeople for the ENGOs are just too damn obvious and this is borne out by a March 2004 Sierra Legal Defence Fund newsletterand the quote from Mr. DeMarco; “We continue to try to uphold the right of local governments to respond to calls for better health and environmental protection,” said Sierra Legal’s Managing Lawyer, Jerry DeMarco.”

The words contained in that dated newsletter by Mr. DeMarco are telling! When those words are examined in context to his current position of adjudicating for a government that has stomped on the rights of local governments under the Green Energy and Economy Act, its ability to “kill, harm and harass” birds, bats and humans, via Environment Ministry licences; it is hard to reconcile. Just what are Mr. DeMarco’s beliefs and does the pay he gets as a member of the ERT hold sway over his rulings and his moral suasion? Only he can answer that question!

The Bats are bouncing around the belfry with no hope of survival!

Parker Gallant,
October 13, 2012

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