Environmental Review Tribunal: Paul Muldoon revisited

A year ago, Parker Gallant wrote this on the Environmental Review Tribunal and had several questions about the impartiality of some Tribunal members. He takes a special look at Paul Muldoon, the environmental lawyer, who is vice-chair at the Adelaide appeal, being heard in London this morning.
  We reprint this excerpt:

Examining the Environmental Review Tribunal (ERT), adjudicator of licences under appeal, issued by the Minister of the Environment (MoE), is an interesting exercise. One of the criteria for application as a member of the ERT is: “Experience, knowledge or training in the subject matter and legal issues dealt with by the tribunal; Aptitude for impartial adjudication”.

A focus on that latter qualification means Ontarians should expect [it] is the pinnacle of member qualifications, because the “tribunal”, is a quasi court, set to administer justice as defined under the Act which it adjudicates. Looking at members of the ERT one notes that four of its members have the “experience” but one could question whether those four have the “aptitude for impartial adjudication.”

Appointments to the ERT are made by the Premier or the Minister and follow “a recruitment and review process managed by the Public Appointments Secretariat” (PAS). All appointees are required to sign a “Conflict of Interest Disclosure Statement” which asks the question: “Have you been involved in any issue or controversy in the past, or that may be subject to public review in the future, in which the government may have an interest?”

One would assume that extensive lobbying of the government in the past on energy related matters would have automatically generated a “yes” to the foregoing question, and may have rendered the applicant inappropriate. At least one (and possibly four) of those now sitting on the ERT may have answered that question with a “yes” but that yes didn’t generate a rejection.

The first is Paul Muldoon, Vice Chair of the ERT. In his prior position as Executive Director with the Canadian Environmental Law Association (CELA) Mr. Muldoon had occasion to lobby the current Liberal government. In fact Mr. Muldoon on November 4, 2003 sent Premier McGuinty a letter claiming CELA were one of the founders of the Campaign for Nuclear Phase-out and that CELA supported renewable energy: “Energy efficiency programs and renewable energy are cheap, clean, and safe ways to secure Canada’s energy future”. The letter finished with the words; “We look forward to working with your government on appropriate energy solutions for Ontario.”
CELA get the bulk of its funding (73% or $1.2 million) from “Legal Aid Ontario”, according to their March 31, 2011 annual report, with a big chunk of the balance (17% or $295,000) from grants. Two of the latter came from the Trillium Foundation who report they granted CELA $502,200 between 2007 and 2009. CELA list other funders including the Canadian Environmental Network, Environmental Defence, CAW and several others.

CELA team up with other environmental groups such as Ecojustice (formerly Sierra Legal Defence Fund and Jerry DeMarco’s [another ERT member] former employer), Environmental Defence, Sierra Club, etc. to push their “renewable energy” views to the Ontario Provincial government (as recently as June 6, 2012). CELA claim their organization is a “Legal Aid Clinic”.

The “legal aid clinic” aspect is interesting as the writer is aware that CELA was approached a few years ago for legal help by a small conservation group, concerned that industrial wind turbines on the shores of Lake Erie would harm migratory birds. That group never even received a response. CELA tout objectives in their 2011 annual report including this one; “to prevent harm to human and ecosystem health through application of precautionary measures” but apparently they tend to pick and choose those health and ecosystem issues when it suits their purpose. One such example appears to be the Sierra Club (revenue reported to the CRA Charities by the two “foundations” that comprise the Sierra Club were in excess of $2 million) who they name as a client in the annual report. This is a blatant example of our tax dollars (legal aid and government grants) being used to fund a charity’s legal actions so taxpayers effectively pay twice for those activities. …

So Paul Muldoon, whose past involved both controversy and issues, bound to be subject to public review, applied for a position on the ERT. Mr. Muldoon was presumably blessed by PAS, appointed by the Minister of the Environment, Laurel Broten, and is gainfully employed as Vice Chair of the ERT. In my personal opinion, I have difficulty believing that Mr. Muldoon does not continue to harbour some of that green religion in his position and would be personally concerned of bias in any ruling(s) he might hand out and indeed if he has the “aptitude for impartial adjudication”?

Interpretation of the law or the regulations governing our lives is judged through the eyes of the adjudicator who pays close attention to those presenting the best and most relevant “case law.” The MoE with an unlimited budget are in a much better position to do research than the poor appellant. While the “appellant” can certainly appeal the ERT’s decision or order he/she must be prepared with a pile of cash to support the process and possibly pay for the court costs. The ability to pay is an attribute the MoE is not concerned with as they use our tax dollars to fight anyone appealing an ERT decision.

It’s not a difficult conclusion to realize the odds of winning an appeal favour the MoE, without even stacking the Board with individuals that may be inclined to have a bias or, to some extent, may have actually played a role in creating the legislation/regulations that they now adjudicate.

The opinions expressed are those of Parker Gallant and not necessarily Wind Concerns Ontario.

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