Tuesday, May 14, 2019

Is This All That Stands in the Way of NDP-Green Electoral Co-operation?


Canada's political ground is shifting - and the upheaval is largely as a result of Canadians' growing awareness of, and concerns over climate change.  Here's what I'm seeing:

  • Greens recently won big in PEI, and took an important by-election in Nanaimo-Ladysmith - a riding previously held by the NDP.
  • Elizabeth May remains a far more popular leader than Jagmeet Singh, according to the polls
  • Those same polls show the Green Party polling in double digits for the first time - and they have the NDP mired between 15-20%
  • Jagmeet Singh is not very well-known by Canadians.  He's also not particularly well-loved by many in his Party.
  • The Conservative Party is polling in majority government territory.
  • Both the NDP and the Green Party are generally supportive of a Green New Deal - whatever that turns out to be.
  • The Liberals are pretending to be climate champions, but they bought a bitumen pipeline and are lining up to spend upwards of $8 billion to increase greenhouse gas emissions. They're not actually serious about climate change.
  • After losing the Nanaimo-Ladysmith by-election, former NDP MP Svend Robinson urged his party to learn from the defeat.  The message appears to have sunk in.  Jagmeet Singh announced yesterday that he no longer supports fracked natural gas - which presumably means that he no longer supports BC's LNG enterprise, as it will liquify fracked natural gas.
  • Singh is moving his party closer to the Green Party on climate change.  That threatens Greens - but really it's a victory for the Green Party, Canada and the planet: the more partners we have who are serious about taking climate action, the better off we all are.
  • Macleans magazine recently floated a trial balloon about an NDP-Green merger, and how it could lead to greater success for both parties.  While partisans in both parties have been incredibly resistant to the idea, the idea of a merger appears to be somewhat popular with Canadians.

But there is no time for the NDP and Green parties to merge - even if it were a desirable thing.  There's an election coming up in the fall, and both parties have to put all of our energies into electing MP's.

And yet, there's really very little stopping New Democrats and Greens getting together and co-operating for the chance of greater electoral success.  With the two parties clearly moving towards one another's positions and policies in a way that we never have before, a conversation about electoral co-operation is necessary.

It's necessary not just because the electoral stakes are so very high - although that's the case.  A Conservative victory in the fall would be epically disastrous for Canada and the planet. At a time when Canada should be acting as a climate leader, the Conservatives will fight the tide of history, undo a lot of the good that the Liberals have done, and take Canada backwards.  That's bad news for my children.  We can't let that happen.

But the conversation is also necessary because it's going to happen anyway.  There is no way that the Green Party is going to be able to reign in all of the Electoral District Associations that want to explore some sort of co-operative agreement.  It happened in 2015 in a couple of ridings - and it will happen in even more ridings in 2019.  

That Which Divides Us

So what's standing in the way of the Green Party's leadership exploring the possibility of co-operation with the NDP?  From where I sit, not a whole lot.  But I will say this: partisan Greens and partisan New Democrats seem hell-bent on nixing anything that would see our two parties co-operate pre-election.  Too many believe that there is a significant divide - one that can't be overcome - between Greens and New Democrats.

I don't think the divide is that significant, and I see strong evidence that it's shrinking.

In this blogpost, I'm going to explore those points of contention that appear to exist between our two parties.  Some of these issues are real - but others are more about perception than policy.  Examples here are taken from my years of observing politics, writing about the NDP and Green parties, and from comments being made by New Democrats and Greens on social media about one another. 

Ultimately, although the list appears to be lengthy, it's not particularly extensive, in my opinion.  

And it's not nearly as extensive as the points of agreement that Greens and New Democrats can find with one another.  And since the climate crisis really should be driving our decision-making at this time, I don't think we can let these few minor points of contention stand between us and co-operation.  I sincerely believe that our leaders need to sit down with one another with an eye to identifying what is possible between now and September.  Electing MP's that will stand for action on climate change should be paramount for both of our parties - whether those MP's are Greens or New Democrats.

Because, frankly, as this post will show, there's really not a whole lot of difference between a Green and a New Democrat any more.



Greens Complaints About New Democrats

NDP Doesn't Take Climate Change Seriously

Without question, this is the biggest concern for Greens: the NDP's lack of commitment to serious climate action.  Just about every point below feeds into this perception.  And it is true that New Democrats have a significant history with standing in the way of climate solutions.  Greens won't forget that the NDP campaigned against a carbon tax in British Columbia.  We can't forget that federal NDP Leader Jack Layton pulled the plug on Paul Martin's minority government, paving the way for a decade of Stephen Harper and climate inaction - at a time when Canada was hosting the United Nations Conference of the Parties in Montreal.  The Alberta NDP's massive support for doubling the tar sands production and the B.C. NDP's support for fracked natural gas - all of this feeds into the perception that the NDP have been actively hostile to climate action.

But that's not what the federal NDP under Jagmeet Singh is talking about now.  Singh just introduced a motion to the House to have the government declare a climate emergency.  Through considerable poking and prodding, the federal NDP has seriously shifted its policies away from promoting fossil fuels and towards sustainability.  The gap which has divided us is closing - and Greens need to recognize this.

Fracking / LNG

With NDP Leader Jagmeet Singh's announcement yesterday pulling NDP support for fracking, this one is now off the table.  Greens and New Democrats will head into the election with both parties opposed to fracking and to the B.C. LNG scheme - which is supported by the federal Liberals.

Leap and a Green New Deal

The Manifesto calls for boldness and decisiveness. I encourage every Canadians to read it and sign it. But don’t just sign it: vote for it. The platform the Green Party ... offers signatories a chance to vote for what they believe in.” -Green Leader Elizabeth May, September 15, 2015.

The NDP hemmed and hawed about support for the Leap Manifesto in 2016, whereas the Green Party issued a press release offering support on the day that Leap was released.  Despite commitments to discuss Leap at the EDA level, the NDP continues to prevaricate on Leap. 

But that hasn't stopped Jagmeet Singh and other prominent New Democrats from talking up the New Green Deal.  The NDP appears poised to adopt some form of the Green New Deal as a central tenet of its election platform.  Whatever the "Green New Deal" is, it's a great marketing tool for which ever party decides to publicly buy in to it.  This may sound crass, but the specifics won't matter as much to voters as the packaging.  The media says that a Green New Deal is good for the environment - and that might just be enough.

I understand that there are Greens who say that the Green New Deal doesn't go far enough - and that our Vision Green offers a better approach.  I happen to be one of those Greens.  But poll your friends and family and find out how many of them have ever heard of Vision Green vs. the Green New Deal.  

Let's not let the perfect stand in the way of uniting behind something that's really good - and the Green New Deal - however it eventually manifests itself in Canada - will surely include numerous points of agreement for New Democrats and Greens - and likely very little that divides us.

Expanding the Tar Sands / Support for new Bitumen Pipelines

Rachel Notley's NDP government's "Climate Action Plan" put Alberta on course to almost double production in the tar sands by 2030.  It centred around getting Alberta bitumen to tidewater, through a new pipeline.  It was a plan to significantly increase emissions - and to put the heavy lifting of meeting Canada's emissions reduction targets on the other provinces.  The federal Liberal government under Prime Minister Justin Trudeau bought into this plan, leading Ontario Premier Doug Ford to declare that Ontario has already done enough to reduce emissions.

Notley's climate change plan was just not serious, and Greens could see right through it.  

And so could New Democrats.  In B.C., Premier John Horgan's government continues to oppose the Trans Mountain pipeline.  And under Jagmeet Singh, the federal NDP's position has been to oppose it as well.

Now that Rachel Notley is gone, the federal NDP have free reign to heal this division within their own party.  Clearly they are moving away from supporting tar sands expansion and towards sustainability.  They have moved closer to the Green Party than ever before - so much so that on Trans Mountain and tar sands expansion, Greens and New Democrats are on the same page.

Support for Big Oil

As with the Trans Mountain issue, now that Rachel Notley is out of the picture, subsidies for Big Oil are off the table.  Singh has made it very clear recently: the NDP will no longer support subsidies for fossil fuels.  Greens should take him at his word - at least to get us through the coming election.

Concerns about the NDP being in the pocket of Big Oil-loving unions are overblown.  I'll discuss that further below.

Capping Gasoline Prices

Every now and then, particularly at the provincial level, the idea of capping gasoline prices to make driving more affordable for people of modest means, comes up.  It came up again just recently in the Ontario election in 2018 - and I've seen New Democrat MPP's taking issue with the Conservative budget in Ontario for not doing enough to drive down gasoline prices.

Of course for Greens, the idea that we should make driving cheaper is madness.  Yes, we recognize that people still have to drive, and rising gasoline prices adversely impact the least well off car owners.  Greens support targeted relief (somewhat akin to what the federal Liberals are doing with rural homeowners) rather than broad-brush approaches that provide an incentive for the rich to continue to use fossil fuels in a profligate manner.

At the end of the day, though, this is largely a provincial issue.  Further, both parties recognize that the issue of rising energy prices and how they effect the least well off among us is real and requires policy and programs to address.  Down the road, I suspect that Greens and New Democrats at all levels will find common ground to address that issue - and I think the Green New Deal will be the rallying point.

Commitment to Green Values

What binds Green parties throughout the world is a commitment to certain core values.  Those values are: Non-Violence; Social Justice; Participatory Democracy; Sustainability; Ecological Wisdom; and, Respect for Diversity.

Greens are very worried that New Democrats don't share these values.  Further, Greens are concerned that the NDP doesn't actually appear to have any values beyond the desire to get elected at all costs.  Greens are pointing to Singh's recent environmental shifts as just further evidence that the NDP will do and say anything if they think it will help them get elected.

The NDP's disposable values are certainly something that has long troubled me - even longer than I've been a member of the Green Party.  The lack of values of the Party is a real problem for the Party.

But the suggestion that New Democrats largely don't support the Green Party's core values is one that lacks evidence (besides, perhaps, the commitment to Non-Violence - something even sitting Greens have had some trouble wrestling with at times).  

On the contrary, I suspect that a lot of New Democrats would be surprised to discover that Greens identify as a core value a commitment to social justice and participatory democracy.  Members of both parties can find a lot of common ground among these core values.  Instead of keeping us apart, they can and should unite us.

Representative Democracy and Whipped Votes

Greens believe that the NDP lack of strong commitment to representative democracy.  This probably comes as a surprise to many New Democrats who believe the same about Greens.  Greens views are informed by a couple of things: the NDP leader selection process that gives votes to unions; and, vote whipping in legislatures.  Let's look at each in turn.

The NDP shifted to a one-member, one-vote process to elect leaders during the leadership election that saw Tom Mulcair take his party's mantle.  That was back in 2012.  Prior to the Mulcair election, it is true that for NDP leadership votes, not all votes were considered equal, and the Party did give organizations like unions the ability to vote for leaders in the same way that delegates to the convention could vote.  I know that's weird for Greens (frankly, it's just weird - unions aren't people, why are they voting?).  And the NDP appears to have recognized this, and dealt with it. Years ago.

Vote whipping is a problem in that it does not allow MP's to fully represent the interests of their constituents in parliament. Greens like to characterize our commitment to not whipping votes as "putting people ahead of party".  The NDP sees it differently: if MP's aren't speaking with a united voice, it waters down support or opposition.  A divided party is problematic as well from a media-management perspective.  There are good reasons why votes should be whipped.

If we were talking about a merger of the two parties, in my mind, whipped votes might be the biggest issue that divides us.  But for electoral co-operation this really should be a non-starter - each party's culture is not going to be effected at this time.  Let's just get it together on the big picture items.  We can deal with this later if we head down the road towards a merger.  We've got bigger fish to fry right now.

Corporate Political Donations

As a rule, Greens don't take corporate political donations.  It's part of our commitment to Representative Democracy.  Corporations - and unions - aren't people.  They don't vote.  They should not be influencing electoral outcomes.

The NDP has a history of taking donations from corporations and unions.  This will continue to be an area that divides us.

But it need not divide us at the federal level in 2019.  Federal rules prohibit corporate and union donations to political parties and candidates.  That makes this a complete non-issue.

Lack of Support for Proportional Representation / Electoral Reform

Both the NDP and the Green Party claim to be in favour of electoral reform - and specifically to moving from a First Past the Post electoral system to some form of Proportional Representation.  Greens, however, continue to have serious doubts about the NDP's commitments, given the NDP's actions at the provincial levels.

New Democrats have been in majority government situations in Nova Scotia, Ontario, Saskatchewan, Manitoba, Alberta and British Columbia - and not one of those governments have ever followed through on enacting PR.  In my opinion, Greens are justified in our serious doubt that New Democrats really are committed to PR.  That probably bristles with many New Democrats, but there's really no denying the evidence.

But the reality in 2019 at the federal level is this: our differences, real or otherwise, on electoral reform do not matter.  It is doubtful that an NDP/Green alliance of any sort would form government.  Heck, an "alliance" need not even be on the table as part of a pre-election co-operation agreement.  What we do know is that the Liberals and Conservatives absolutely will not be moving on PR.  Are Greens any worse off if we support the NDP and their lukewarm commitment to PR? Not at all.  

This sticking point for Greens simply does not matter for electoral co-operation.

Support for Investor State Dispute Provisions in Free Trade Deals

I see that in the Nanaimo-Ladysmith by-election, Green candidate (now MP) Paul Manly reached deep down into the bag of wedge issues and brought this one out.  It is true that the NDP voted in favour of the Canada-South Korea Free Trade deal, even though it included investor state dispute resolutions - something which Greens and New Democrats tend not to support.  And except for that one time, the NDP has been consistent on investor state provisions.

Look, it happened in the past. It's not likely to happen in the future (especially with the new NAFTA or whatever we're calling it) because Donald Trump isn't a fan of these provisions either.  

This happened in the past. Let's all move on and not let this get in the way of electoral co-operation.

Bombing Libya

Equally, this too happened in the past. Yes, Elizabeth May was the lone MP to stand up against everyone else in parliament over the decision of whether Canada should participate in the bombing of Libya.  I get that it calls into question whether the NDP really is committed to non-violence.  

But I remind Greens that our Party hasn't exactly done an exemplary job around non-violence either, with half the Green caucus voting with the Conservatives to go to war with ISIS in Syria (see: "Canada at war: Vote to launch combat mission against ISIS passes 157-134 in House of Commons," National Post, October 7, 2014).

So let's not be smug about this - and let's move on.

The Seal Hunt

Oh boy.  Along with vote-whipping, this might be one of the biggest issues that divides our Parties.  The Green Party has a nuanced position on seal hunting - with policies that treat the commercial and aboriginal hunts differently (which is actually upsetting to many Greens who favour an outright end to all seal hunting).  The NDP supports the seal hunt without reservation (which actually upsets many New Democrats who favour an outright end to seal hunting).

My advice here is for everyone to keep our eye on the ball.  The climate crisis is the issue. The seal hunt - while an important issue to many - is one we can table for now.  

NDP Beholden to Unions

Greens are concerned that unions have an outsized impact on NDP policy direction and platform.  They look at the NDP's historic opposition to climate action and see how some unions have been fueling it.

The truth is that union influence in the NDP has been diminishing for years.  Unions no longer vote directly for leaders.  They no longer contribute financially to the Party at the federal level.  Many unions - like LIUNA - have shifted away from the NDP over the NDP's cautious approach to environmentalism.  Others, like Unifor, have themselves shifted to what can only be described as a pro-environment position.  

If there are any outsized impacts here, I would suggest that they are on Greens perceptions of the NDP.  Singh's movement towards climate action actually shows that the climate delayers in the labour movement are not now ascendant - and are being ignored.

As a Green, I think we need to put our bias aside here.  That the NDP and some unions remain in alliance (or at least in loose affiliation) with one another is not a reason to delay climate action further by opposing one another.  

Site C

Yes, the NDP in B.C. blundered on Site C.  

It was a provincial issue.  It's done.  Greens at the federal level need to move on.

Sherebrooke Declaration

The federal NDP believes that a simple majority of voters in a referendum to break up the country should be enough to initiate a conversation around how it will happen.  Greens favour the approach mandated by the government via the Clarity Act.  And if any of this still sounds like it ought to be a sticking point for our two parties in 2019 - I'd suggest that being stuck in the past on the Sherbrooke Declaration isn't in anybody's best interests when we've got a climate crisis to tackle.

Ring of Fire

The NDP - at least in Ontario - has long argued that the government needs to move faster to develop resources in the Ring of Fire - an isolated region in Northwestern Ontario that contains significant chromite deposits along with rare earth metals and lithium.  Greens believe that development should only occur with the free and prior informed consent of indigenous people who live in the area - and if this takes time, so be it.

While there is some cross-over between provincial and federal jurisdictions here, Greens should acknowledge that at least federally, NDP leader Jagmeet Singh has been clear that he wants resource development to respect UNDRIP.  Singh and the Greens are on the same page here - even if the provincial NDP isn't (and they're not).

Culture of Hypocrisy

Greens just don't trust the NDP to do what they say they're going to do.  Greens look at the NDP and see a party motivated by gaining power.  Policy positions are focus group-based rather than values-based.  They often conflict with one another in terms of outcomes (example: wanting to reduce emissions while making it easier for people to drive by capping gasoline prices or removing road tolls).

I acknowledge these concerns and share them.  What I can say is that it appears to me that under Jagmeet Singh, the NDP is finally starting to get their act together.  Whether that's because of some moral, values-based approach to policy has suddenly infused the NDP, or because focus groups are telling them they need to be more like the Greens if they want to win - you know what? I don't care which it is.  The NDP is moving towards us - let's call it a victory for Greens, embrace it for what it is, and work with them to elect similarly-minded MP's in October.

If we're looking beyond electoral co-operation after October, no doubt a new political party arising out of the existing parties will have carte blanche to determine how policies and positions will be adopted and adhered to.

NDP too Right-wing

Many Greens believe the NDP has drifted too far to the right side of the political spectrum.  The media narrative that Justin Trudeau ran to the left of the NDP in 2015 remains powerfully convincing - especially since Tom Mulcair committed to not running deficits (Greens here may conveniently forget that Elizabeth May made the same commitment as Mulcair).

The NDP's shift to Tony Blair's 'third way' for labour under Jack Layton can't be ignored.  Many New Democrats will scoff at the idea that Greens should be concerned about their right-ward drift - but few will deny that it's happened.  

This left/right political stuff sometimes wears me down.  Frankly, it's far less important for me to define where, specifially or relatively, one party sits on this spectrum when compared to another.  Right now, the question ought to be, do we agree on the big stuff?  And the answer is clear: we do agree.  Let's not let a 19th Century political paradigm stand in the way of progress.  If we want to hash out who's less "right-wing" after the election then let's do that - but honestly, it seems a pretty pointless exercise to me.

Jagmeet Singh

And finally, many Greens have been loud and clear that they just can't support Jagmeet Singh.  What they've been less clear on is why.  Some of what I've seen suggests that Singh is too weak; he's not committed to climate action; he's touchy-feely; he doesn't use evidence and fact to inform himself; he's a johnny-come-lately to the climate crisis.  Maybe these are good points - I don't know.  But he's what the NDP has - are we really going to let this stand in our way?

One thing I think Greens and New Democrats can agree on is that Singh is a good man, possessed of an abundance of integrity - someone who wants to see Canada prosper.  He's a good man.  Let's not tear him down for his slight imperfections.

New Democrat's Complaints About the Green Party

Unfriendly to Labour

"[We] believe in the rights of workers to organize and in the free collective bargaining process. Labour rights are human rights. We believe in pay equity for women, in the equal treatment of organized and non-organized workers, and in workers’ right to fair wages, healthy and safe working conditions, and working hours compatible with a good quality of life." -from Section 1.8 of Vision Green

The overwhelming complaint about Greens that I've seen from New Democrats centres around the perception that Greens are unfriendly to labour and are not committed to social justice.

As identified above, a strong commitment to Social Justice is one of the Green Party's core values.  And as such, with regards to labour issues, the Green Party actually has a fairly robust suite of policies.  Is it on par with the NDP?  Maybe, maybe not - but I think that New Democrats are likely to find nothing objectionable about labour in Vision Green.

But there is something to the notion that Greens can be more than a little "anti-union" - and that stems from our value in Representative Democracy, and the notion that unions - because they are not people - ought not to be treated as if they were.  This does not diminish the fact that most Greens recognize the importance of unions. But Greens and green ideas have for long been opposed by unions and neither Greens nor New Democrats can really deny that unions have at times stood in the way of climate action.

Are Greens really unfriendly to Labour?  I think New Democrats should take a look at our policies - start with Vision Green.  It may not be everything that New Democrats want to see, but I think in looking, New Democrats will see that the Green Party is a firm supporter of the labour movement and recognizes the importance of labour - especially as a component of a just transition for fossil energy workers - which is a part of any Green New Deal.

Support for Back to Work Legislation

I agree with New Democrats on the one instance that I know of where an elected Green supported pre-emptive back-to-work legislation.  Green Party of Ontario leader Mike Schreiner did this in December, voting with the Conservatives to prevent a strike at Ontario Power Generation.  

I acknowledge that a lot of potential good will between Greens and New Democrats was lost because of this vote.  It's a real problem - the vote brings into serious question whether Greens will have the backs of labour.

In my opinion, it was a mistake - for a number of reasons.  

But in the face of the climate crisis, this is really small potatoes.  It happened.  We acknowledge it happened.  Can we move on and look at the big picture?

Rules for Joining Unions

Equally, a vote in British Columbia has left New Democrats there wondering whether Greens really have labour's back.  In B.C., Greens voted with the Liberals around provisions deemed unfriendly to labour for unionizing workplaces.  Greens in B.C. were following the recommendations of a provincial expert.  It still might not have been the right thing to do.

But again, in the face of the climate crisis, this is small potatoes.  For the purpose of working together for electoral co-operation at the federal level, this kind of thing really should not stand in our way.  The stakes are just too high.

Social Justice

New Democrats believe that the Greens commitment to social justice issues is thin. Some even say that Greens have only recently developed policies around housing, health care, indigenous rights.  Those who say that clearly have not investigated the Green Party.

Greens commitment to social justice forms one of our core values - as it does for all Green Parties.  Greens have long had a robust policy agenda on social justice issues - one that has often been far out in front of the NDP on many issues (like a guaranteed income, for example).  I believe that our social justice policies are, on the whole, more robust than those of the NDP at the federal level - because they interlinked with policies related to environmental justice.  That's just me, though.  I don't think it benefits either of our parties at this time to quibble about who's got the best policies when the fact is that both of our parties have extremely good policies.

Social justice issues should actually be an area of agreement between our two parties.  New Democrats who continue to believe that Greens are behind the times here are mistaken.

Carbon Rebates

Why on earth would a government collect a carbon tax and just give it away? That money could be invested into achieving low carbon outcomes.  The Greens support of a carbon fee and dividend approach to pollution pricing is madness!

I acknowledge that this is an issue that divides our two parties - and may very well be a roadblock. But I think it's something that ought to be tabled for the 2019 election.

First of all, we don't know which form of pollution pricing New Democrats are going to champion in this election.  There's been no consistency on this, unlike with the Green Party.  But chances are the NDP will settle for a carbon tax that sees revenues invested in green projects - something that the Ontario Liberals were doing with revenues generated from Cap and Trade.

In Ontario, the Liberals insisted that revenues worked 4x as hard this way - as they worked towards driving emissions down by initially making prices higher, and then, through investment in green projects, they further reduced emissions.  And there is something to that for sure.

Greens, though, have long suggested that the sorts of investments that the Ontario Liberals were making should have been happening anyway - and that the revenues from Cap and Trade should not have been the only funding mechanisms used.  Greens would evaluate all government expenses through the lens of climate change, and not just treat "green projects" as "nice to haves" dependent for funding on pollution pricing.

I understand the debate around returning money to consumers - many New Democrats clearly think that money ought to be invested in green projects.  But the reality is that consumers are going to need relief as prices start to climb as pollution pricing begins to approach actual costs.  Right now, there is significant resistance in Canada to a carbon tax of $20 per tonne on fossil outputs.  In part, resistance is offset by seeing this money returned to consumers - many of whom will actually come out ahead when everything is tallied up.

Can you imagine what level of resistance there would be at $50 per tonne if nothing were being returned to consumers?  And now imagine the rioting in the streets that would take place at $150 per tonne - a carbon price that is more in line with the actual costs of carbon pollution.

Yes, this one will be hard to square for New Democrats and Greens - but not impossible.  And with carbon pollution now priced at just $20 per tonne, it's not something that I think Greens and New Democrats should let stand in the way of electoral co-operation.

Greens are Weak on Polluters (regulation vs. marketplace)

Some New Democrats believe that the Green Party's position on carbon rebates vs. regulating makes Green weak on polluters.  This is, of course, ludicrous - and frankly to me it seems to be nothing more than a talking point for ultra-partisans. 

The idea that one Green Party policy can be looked at in isolation - without looking at the entirety of the Party's vision - is just dumb. Greens are not weak on polluters.  Yes, we want to see a market-based mechanism used to reduce carbon emissions - but please, that's just one form of pollution.  

And even with regards to carbon pollution, there is evidence form B.C. to suggest that a market-based approach works.  Economist William Nordhaus just won a Nobel Prize for his research into market-based solutions to the pollution.  That market-based approaches are the more efficient than regulation should be a reason why New Democrats would support them.  New Democrats, after all, are always looking for ways not to waste taxpayer's money, given how NDP governments are always under the microscope on this.

Sorry, the idea that the Green Party is weak on polluters is just not reality-based.

Capitalism

Some New Democrats oppose working with the Green Party because Greens support capitalism and capitalist responses to significant issues, like climate change.  I can't help but think those same New Democrats would be surprised that the NDP too supports capitalism and capitalist responses to significant issues, like climate change.  And I can only imagine their surprise in discovering that the Green New Deal does the same thing.

Look, I get that there are serious concerns about capitalism. I often express these in my blog.  But they system is the system - and until we are in a position of power to change the system, it's one we are resigned to working in.  Anti-capitalist New Democrats should be a little introspective here, given that the NDP hardly transformed Ontario, Nova Scotia, Manitoba or British Columbia (much less Alberta) into havens of socialism when the NDP was in power there.

But those New Democrats should take heart in discovering that many of the conversations they've been having in their own parties around the need to reform capitalism have been going on for a long time in the Green Party.  And if anything, they probably have more legs with Greens, given our lack of commitment to the growth paradigm that capitalism needs in order to be a thing.

There is common ground to be found here and NDP partisans on the left should look for those things which bring us together.  It's an important conversation to have, going forward.  But both of our parties tentative support for capitalism - and our policy and programming offerings made within that context - should bring us together in electoral co-operation.  We are not divided on this issue.

BDS / Palestine

But we are divided on this one.  The NDP have long been opposed to anything resembling tentative support for Palestinians over Israelis.  If I may say, this has been an entirely cowardly position for New Democrats to adopt - and I know a lot of New Democrats feel the same way.  Nevertheless, NDP elites who run the Party have a good point about this one - even if the grassroots thinks its crap.  Support for BDS in any form is not a vote-winner and is far too easily misconstrued by political opponents as being anti-semitic.

Greens know this first hand.  And for New Democrats, this might actually be the issue that sinks electoral co-operation.  The NDP might not want to associate with the Green Party due to our stance on BDS.

But this is such a minor thing in the face of the climate crisis.  The Green Party's platform almost certainly will be silent on BDS.  But if it becomes the only sticking point for electoral co-operation, with all due respect to the suffering people of Palestine, your interests will be better served by a Canada that becomes a world leader on taking global action on the climate crisis than it would be by having a fourth-party support boycotts that will never happen.  If the NDP makes a stink here, Greens need to give on this one.

Greens too Right-wing

New Democrats have a false impression that the Green Party is right wing because some of our solutions to the climate crisis are market-based - and because when push comes to shove, we haven't exactly had the backs of unions. I'd suggest that neither of these inherently makes Greens a right-wing party - although clearly there are real concerns about the labour issue, which I've addressed above.

As I indicated earlier, Greens express the same concerns about New Democrats - they're too far to the right.  But for Greens, leftist credentials aren't nearly as important as they are for the NDP.  Here I can only suggest that critical New Democrats take a close look at Green policy - maybe even to the point of identifying which policies are "too far to the right" for the NDP.  I've asked some of my NDP 'friends' to undertake this exercise in the past, but no one ever does - or at least they never get back to me and tell me which policies they have an issue with.

The issue of who is furthest to the left should not get in the way of electoral co-operation.  In the fact of the climate crisis it's really a pretty petty thing for both of our parties to be strutting around, trying to own.

Elizabeth May

As with concerns that Greens have with Jagmeet Singh, New Democrats who are not fond of Elizabeth May can probably agree that she is a woman of integrity who has the best interests of her nation and planet at heart.  Electoral co-operation with the Greens does not mean that May is going to lead a merged party.  

And frankly, I don't think that May would even want to.  Let's face it: May's been leader of the Greens now for over a decade.  She just got married for goodness sake.  Although Greens aren't talking about it (maybe out of denial), this is likely to be May's last election as leader.  New Democrats should take heart that if we are to go forward beyond electoral co-operation, it is very unlikely that May will offer herself up as leader of some kind of alliance or merged party.

That Which Divides Us, Revisited

And that's what divides us.  It's not especially significant.  Or insurmountable.  Especially if we are just talking about electoral co-operation.  Yes, I understand that both of our Parties have provisions in our constitutions that require running candidates in all of Canada's ridings.  So what?  Let's overlook them. Let the complainers complain - we have bigger fish to fry.  

A Conservative victory in October will set Canada back a decade or more in our fight against the climate crisis.  That's time that we simply can't afford.  That which divides us is not especially significant in the face of this reality.  But that which unites us - our desire for real action on the climate crisis, in an equitable and just manner - let that be what brings New Democrats and Greens together before September.

(opinions expressed in this blogpost are my own, and should REALLY not be interpreted as being consistent with the Green Parties of Ontario and/or Canada)

Tuesday, May 7, 2019

Greens to be Ignored No More

"From where I'm sitting, this whole "green surge" thing - there doesn't seem to be a lot of actual evidence to back it up.  Yet." -Sudbury Steve May, "Is the Green Surge For Real?" February 5, 2019.

Nanaimo-Ladysmith Federal Electoral District - Results - Elections Canada
I would have been satisfied with a squeaker.  But Paul Manly and his team of Greens wanted to leave no doubt in anyone's mind that the Green Party in Nanaimo-Ladysmith was for real.  Pundits were predicting a close finish, but most were giving the nod to the New Democrats, who took the riding in 2015.  The B.C. Greens had, after all, just received a pretty hefty thumping by the New Democrats in an overlapping provincial riding.  

Manly and the federal Greens - although an interesting side-story, especially after Peter Bevan-Baker's PEI Greens took 8 seats in that province's provincial election a couple of weeks ago - would probably fall victim to the same old problem Greens face everywhere: not getting the vote out.
Projection of Popular Vote in Nanaimo-Ladysmith - May 5/19 - 338Canada
338Canada did give the edge to the Green Party, but as recently as Sunday, the algorithm fueling that polling aggregator site suggested that the riding could still go any which way.  It's not clear whether 338Canada gave any credence to an Oracle Poll conducted on May 1st that was released by the Green Party over the weekend (see: "New Green Party poll puts Paul Manly in lead in Nanaimo-Ladysmith byelection," CHEK News, May 4 2019).  

Oracle Called It

How could anyone take that poll seriously, anyway?  While no polling was released by any party or the media throughout the course of the by-election, the late campaign poll commissioned by a clearly biased Green Party claimed results that seemed, well, quite far-fetched.  But the Oracle Poll proved to be startlingly accurate - Green candidate Paul Manly actually finished up with 37.3% - better than the 36% predicted by Oracle.

If Oracle missed anything - and it did - it under-identified Conservative Party support, and over-estimated support for the Liberals.  I won't give Oracle too much of a hard time on this, though - their poll was taken 6 days before e-day, and that's a lot of time for movement to occur.  

First, it's not unusual for a poll to underestimate Conservative Party support, because people 'supporting' other parties will tell pollsters that they're going to vote NDP, Liberal or Green - but on e-day, they don't show up.  That's been a huge problem for the Green Party - which seems to poll about 20% higher than candidates are able to pull on e-day.

Second, by strategically releasing this poll on the eve of the election, the Green Party sent a message to voters - especially Liberal voters.  By showing the Green Party out in front, and having built a substantial lead in the by-election, Liberal voters were given a disincentive to support their preferred party.  Either those voters didn't show up to vote at all, or if they did, they moved to another party. This is evident based on the e-day result for the Liberals - whose vote clearly collapsed to an abysmal 11%.

Finally, the very absence of polls released by the other parties suggest that they knew this all along.  None of the parties was going to leak to the media poll results that showed their vote stagnant or headed the wrong way, while Greens just kept climbing.  What I'm less certain of is why the local media didn't do any polling - and maybe the answer to that question has a little something to do with how Greens have long been ignored by the media, generally speaking (although the media has always been very good to Greens here in Sudbury!)

Well, the Green Party is to be ignored no more.

Trends Matter

For Greens, it was the trends that mattered.  And an old reliable trend might have helped Manly become the darling of voters: when voter turn-out is high, Greens do well.  And, as the CBC's Eric Grenier reports, voter turnout for last night's by-election was about 10% higher than the average for all other by-elections held since the Liberals formed government in 2015 (see: "Trudeau, Singh both have reason to worry about Green byelection breakthrough," CBC News, May 7 2019).

338Canada's aggregate of all federal vote intention polls shows the Green Party at just under 10% - and that was before the Nanaimo-Ladysmith by-election.  Green support has been slowly, but steadily building over the past several months - and pollsters and pundits have started to notice.  

We can now put to rest any questions that might still remain about whether the "Green Surge" is for real.  It is.

Acknowledging this reality, though, can only lead to other - sometimes more problematic questions - less about the Green Party itself, and more about how the Green Surge might impact the upcoming national election.
338 Canada - Popular Vote Projection - May 5/19
The Collapse of the New Democrats

With the New Democrats mired in third place under what can only be described as a lackluster leader, their prospects of forming government have completely evaporated.  Polling puts the NDP at around 11% in Quebec - a province that they dominated in 2011 under former leader Jack Layton.  But half of those New Democrats didn't return under Tom Mulcair's leadership in 2015 - and since then, the NDP have gone on to lose Mulcair's old beachhead riding of Outremount in a by-election earlier this year.  

Since about half the New Democratic caucus comes from Quebec, the NDP's numbers in parliament are about to be wiped out.  Throw in the fact that a number of popular New Democrats like Nathan Cullen and Murray Rankin have decided not to run, and even more ridings are going to be put into play.

The rise of the Green Party - if it continues - and the trends suggest that it will - is only going to eat further into the NDP's support.  The NDP, however, can thank the Liberals for also finding their support eroding.  A strong Liberal showing could prove disastrous for the New Democrats, but Justin Trudeau and the Liberals appear to be doing everything in their power to give Canadians a reason to vote for a Party that isn't the Liberal Party.  It's a strange election strategy, but the Liberals might still pull i....

Can the Liberals Still Pull It Off?

No.  I realize that one should never count the Liberals out of anything.  But they're done.  Their support is going to continue to erode.  Unless maybe Justin Trudeau resigns as leader - something he should have done when the Globe and Mail first broke the LavScam story.  Yes, there is still time for the Liberals to turn things around - but given the sheer hatred that so many Canadians appear to have when it comes to Trudeau, it's just not likely going to happen.

Yes, Trudeau might decide to make some big, important policy or program announcement between now and September - something that he hopes would rally voters around the Liberal flag.  But chances are he's going to get that wrong too.  Thing is, he's lost the trust of voters, and he's not going to get it back.  And the biggest announcement in the world isn't going to change that reality for him and the Liberals.

Trudeau's only play might be actually doing something - or causing something to be done - between now and September.  Something that he can point to and say, "I did that, vote for me."  Pretty much the only potentially winning thing he can do now is figure out a way to get shovels in the ground and construction on the Trans Mountain pipeline started.  Couple that action with publicly distancing himself from the Paris climate accord and making peace with new Alberta Premier Jason Kenney - and maybe with Ontario Premier Doug Ford by cancelling the carbon tax - and there's a good chance that he might be able to recover some lost ground with voters on the right side of the political spectrum.

The Conservative Beneficiaries

Trudeau shifting to the right is not at all what I would like for him to do - but it may be the only hope the Liberals now have of getting elected.  And I can't help but think that even a more right-ward leaning Liberal government would be far more preferable to the outcome that I expect now to see on e-day: a Conservative Party majority government.

The hard reality for Greens is this: the better our party does, under this damn antiquated first-past-the-post voting system, the more likely Conservative candidates will be elected. Unless the vote of one of the other party's collapses, the presence of a strong Green in the field is going to change the complexion of the vote at the riding level.  

The Liberal vote is not likely to collapse.  Poll after poll after poll shows that the Liberals continue to have a strong base that isn't going anywhere.  The New Democrats on the other hand are likely to be strong in certain areas, but much less so relative to the Greens in others (the Maritimes come to mind).  I fully expect that Greens will outperform New Democrats in a good number of ridings this coming election - and in a few, the Green candidate might credibly complain that if it weren't for the presence of the vote-splitting NDP, Greens might have taken the riding (but the Green candidate won't be making that complaint - not after years and years of having that crap flung in our faces).

Do What We Have to Do

One thing I'd like to point out to readers right now: nowhere in my analysis of election outcomes have I talked about the importance of policy or programs, save for that brief discussion about Trudeau and Trans Mountain.  This might be hard for Greens, but the reality is that our policies really don't much matter at this point. If we can keep the bozo eruptions to a minimum, and not have too many flakey candidates bow out pre-writ, and if we can present a respectable and costed platform based on the issues that Canadians have come to expect us to champion, that's all we need do on that front.

Our focus must be on our ground game - getting our volunteers out knocking on doors, handing out literature, sending around memes on Facebook and Instagram.  Compiling data in our databases for a full-on Get Out The Vote (GOTV) effort.  The sorts of things that we have a bit of a reputation for not doing very well. That's what we've got to do now, instead of talking shop.  It's time for us to walk the walk.

The Upside to 4 Years of Scheer

The only upside to a majority Conservative government that I can see is that it will give Greens and New Democrats 4 years to merge our Parties - and if we're going to undertake that exercise, 4 years might not actually be long enough.  But the writing really is on the wall, I feel.  Too many New Democrats are already dissatisfied with the direction that their Party leaders have been taking their Party.  Too many Greens are growing dissatisfied with showing up only to have our hearts broken.  If Greens have a good showing at the expense of New Democrats this time out - only to lead to the election of a Conservative government - you can bet that it will be more than just the political pundits making the case that Greens and New Democrats should work together (see: "A Green-NDP merger? It could be a big hit." MacLean's Magazine, April 28 2019).

I for one am totally onboard with the idea of a merger - although as an engaged partisan, I also know that merging the two parties won't be easy (see this Twitter Thread for my further thoughts).  The idea of merging is likely more popular with our supporters than with our members.  We come from different cultures, and there is a lot of space between us on some important issues.

But ultimately it's that which we have in common that outweighs our differences - and I think we have a lot more in common with one another than most hard-core members on either side think.  The online debate MacLean's stirred up over the question of a merger demonstrated one thing to me: members of our parties, for the most part, really don't seem to know as much about one another as I had thought.  Meaning that there's a lot of myths that need to be exploded about what Greens and New Democrats really stand for.

But now that Greens appear poised to have a serious impact on electoral outcomes, I think now more than ever it's incumbent on Greens and New Democrats to find that common ground which unites us.

Unfortunately, that project is going to have to get started after the October election.  Maybe Paul Manly and a few other former New Democrats in our ranks can figure out a way to get that ball rolling when our caucuses face off against one another in November.

(opinions expressed in this blogpost are my own, and should not be interpreted as being consistent with the Green Parties of Ontario and/or Canada)

Tuesday, April 30, 2019

The Kingsway Cases at the LPAT: An (Unrepresented) Party's Observations, Part 9: Going Through the Motions

"We've been sitting on the fence for far too long." - Caiaphas, "Then We Are Decided," Jesus Christ Superstar

The Easter season has come and gone, and despite numerous promises - mostly to myself - I still haven't completed this 'going through the motions' blogpost that I started months ago.  I had started to think about putting completion off, er, completely until the LPAT ruled on the motions - but that hasn't happened either. Unlike Caiaphas and Ananias' experience in my Easter-favorite film, nothing has been decided.  And I'm still sitting on the fence.

Maybe that will change.  Maybe I've found my mojo tonight to finish this damn post.  I said back in March, in Part 8 of this series ("The Kingsway Cases at the LPAT: An (Unrepresented) Party's Observations, Part 8: Derailed!"), that I'd get my act together - so here's hoping I have.  But like so many in the community, I've really grown tired of all of this.  But I can't give up - I'm 9 parts into this series now, likely with another 9 to go before it's all over.  There are more twists and turns with this LPAT appeal than you could find in a pretzel factory.

Recap

To recap: the Case Management Conference for this matter was held in Greater Sudbury on November 6, 2018, in front of a 3-member Local Planning Appeal Tribunal (LPAT).  The Tribunal "stopped the clock" for this matter after the CMC, due in part to the Toronto Rail Deck divisional court reference, which all parties acknowledged would have an impact on our hearing.  The Rail Deck matter was finally heard by the courts just last week (April 24), but a decision has been reserved.  When that decision issues, and if there are no appeals to it, it's very likely that the LPAT will move forward to schedule a second Case Management Conference at which it will provide the parties with a level of certainty around processes related to cross examining witnesses and entering new evidence.

But our own little hearing generated a number of questions related to processes, too - and the parties who raised these issues believe that the LPAT itself has the ability to decide on the issues via motion submissions.  At this time, no party has indicated that it will pursue process matters at divisional court - but it remains possible that a Party might yet do so, or the LPAT itself may refer matters to divisional court, similar to what it did with Rail Deck.

Let's go through the motions now, to see what, exactly, the parties want the LPAT to rule on.  I'll offer my own thoughts along the way, for what they're worth (and honestly, they're likely not worth very much - without knowing whether the divisional court in Rail Deck is going to rule on whether the LPAT should be more like a decision review board or more like the OMB, it's hard to anticipate where a lot of this stuff is going to land).

LPAT Orders Certain Motions to be Filed

Motions were filed by legal counsel for Tom Fortin, Christopher Duncanson-Hales, and the Downtown Sudbury Business Improvement Area (whom I'll refer to from now on as the "primary appellants" - all of whom share legal counsel in Gordon Petch); the City of Greater Sudbury (represented by legal counsel Stephen Watt); and "the added parties" - 1916596 Ontario Limited - who is the applicant, aka the landowners, which include Sudbury developer and Sudbury Wolves hockey team owner Dario Zulich (represented by legal counsel Daniel Artenosi) and Gateway Casinos (legal counsel Andrew Jeanrie) filed a joint motion. The two unrepresented parties - myself and John Lindsay of the Minnow Lake Restoration Group - did not file any motions.  Because we are so clearly in way over our heads here.

Here are the Motions the LPAT ordered the parties to make, after hearing their submission at the CMC:
Motions Ordered by the LPAT


Let's look at the motion made by the added parties first, as it's probably the most straightforward - and there may be a little something to write about with regards to an anticipated outcome, thanks in part to a recent LPAT decision on a matter in the City of Kawartha Lakes.

The Added Parties

As indicated earlier somewhere in this blogseries, the landowner/applicant to a planning matter is no longer considered automatically as a Party to the proceeding at the LPAT.  Only a municipality/approval authority and the appellants are automatically given Party status.  An applicant - who is usually a property owner who filed an application with a municipality, paid a fee, likely paid for most of the technical studies to support the land use change request, and who clearly has a fiscal interest in the outcome of any proceeding at the LPAT - well, they've got to now approach the LPAT on bended knee and request Party status.  

Based on my read of a number of LPAT decisions, it's become quite clear that these sorts of requests for Party status have already become routine no-brainers for the Tribunal: the land owner has an interest in the outcome and needs to be front and centre at a hearing - especially if a mediated solution is going to be sought.  But not just then. Although the LPAT can't vary a municipal decision after the outcome of the first round of hearing an appeal to an Official Plan amendment or a zoning amendment, it can make recommendations to a municipal Council when it boots it back to them for reconsideration.  Those recommendations ought to be informed ones - and the landowner needs to be present in all of these situations.

In our hearing, all parties consented to the addition of the applicant/landowner, and to the addition of Gateway Casinos - who has a fiscal interest in the outcome - to be added as parties.  The LPAT added both parties to the matter at the November, 2018 CMC.  But these new parties, having only just been added by the LPAT, did not have a chance to respond to the Case Synopses filed by the appellants in the same way that the City of Greater Sudbury did.  In effect, the legislation and the Rules of the LPAT allow the two new parties to participate - but don't permit them an opportunity to file any materials.

Now, that might seem just fine if the LPAT is going to act truly as a body that reviews municipal land use decisions.  Think about it.  The idea here is that all of the evidence germane to the appeal would already have been filed at this point - with the municipality that made a decision. If the applicant had a planner (and he did) that planner would have filed a planning report with the City (which he did) and the City would have forwarded that material along to the Tribunal and appellants via the enhanced municipal record (which the City did).  So the basis for the applicant's case should already be on file, and available for their reference, right?
Motion - Added Parties - Purpose of Motion

Well, the added parties don't see it that way.  Via motion, Zulich and Gateway are asking the LPAT to grant them leave to individually file their own case synopses and appeal records, which could include affidavit evidence.  The LPAT's Rules seem to suggest that "appeal records and case synopses" are intended to only be filed by appellants (see Rule 26.11).  The added parties acknowledge in their motion that there is no specific Rule of that specifically provides an added party with an opportunity to introduce an appeal record/case synopses, but the LPAT has the ability to do so based on their interpretation of Rule 26.20 - which allows the LPAT to add parties " on such terms as the Tribunal may determine."  Further, the added parties submit that doing so is necessary as a matter of natural justice.

In response, counsel for the primary appellants asserts that since the added parties did not express to the Tribunal that they would be seeking additional rights once added, that the primary appellants would not have assented to the inclusion of the added parties as parties without debate/discussion of these rights.  As a result, the primary parties assert that the added parties motion should fail.

The added parties assert that the Tribunal, as per a rather flexible read of its Rules, has the ability to require the production of a case synopsis/appeal record.  I have to admit, at the CMC, I raised this matter with the Tribunal, because as an appellant, it looked to me that if the added parties were allowed to do this, I would need to file further responses.  Clearly, I don't think it is necessary for the added parties to file these materials - but I'm not privy to how they want to make their case. Anyway, at the CMC, counsel for one of the added parties shut me down - said the authority is there, in the Rules - and I think he's right.  It's not spelled out explicitly, but the Tribunal clearly has a wide range of latitude regarding what it can do when authorizing a new Party.

The question is, should it?  The added parties here rely primarily on natural justice - and that may be enough. The primary appellants response that the added parties are seeking a new "right" just doesn't seem to hold up - the "right" is there in Rule 26.20.  And I feel a lot more comfortable writing all of this - which is in complete contradiction to the legal counsel of the primary appellants - after having read the LPAT's April 18, 2019 decision regarding Case PL180734 in the City of Kawartha Lakes.

Kawartha Lakes and Added Parties
From LPAT Decision - re: Added Party / Case Synopsis

In the Kawartha Lakes matter, the City didn't bother showing up at the hearing.  But the applicant did, after having appropriately petitioned the Tribunal to be added as a Party.  Once added, they requested the Tribunal to allow them to file a case synopsis and affidavit material on the grounds that since no one else was going to do that, they had no choice but to.  The LPAT agreed - and ordered that, in this scenario, it would be appropriate for the applicant to essentially act as a substitute for the no-show municipality.  That's an interesting case on its own, but the take-away for the Sudbury matter is that the LPAT authorized all of this as per its interpretation of the LPAT Act and the Rules.  So clearly the LPAT believes it has the authority to be able to Order an added party to file a case synopses and corresponding affidavit evidence.
From LPAT Decision - Authority to determine appropriate actions for added parties

The only question now is whether it's appropriate to do so in the Sudbury matters.  And there might be something in the LPAT's Kawartha Lakes decision about this, too. 
From LPAT Decision - Tests for a 'balanced and leveled presentation of the argument' by both sides

In [58], the LPAT identifies that the resolution of the hearing must be "fair, just and expeditious" based on a "leveled presentation of the argument and submissions of both sides in the appeal."  To achieve this outcome, the LPAT appears now to have established two tests.

The first test, found in [59] is the requirement for a thorough response to the appellant's case synopsis. In Kawartha Lakes, the LPAT didn't have that, because the City didn't want to get involved and did not respond to the appellant's case synopsis. That's not what happened in Greater Sudbury, though - the City did respond to the appellants.  So strike one for Zulich and Gateway here.

The second test, found in [60], suggests that the Tribunal has to have all relevant evidence and pertinent materials in front of it to support the response.  It's not clear whether that happened in Kawartha Lakes (because the City didn't show up to confirm its due diligence in filing materials, and the LPAT could not question it), but it is pretty clear that in the case of Greater Sudbury, everything that's needed to support a thorough response to the appellant's case synopses has been filed - because the City has already relied on it for its response.  Strike two for Zulich and Gateway.

And since there are only "two sides" here - it's incredibly unclear whether Zulich and Gateway have anything meaningful to add to the "argument and submissions" that hasn't already been made.

But what about natural justice?  That's something that the LPAT is going to have to wrestle with - and frankly it's part of the bigger picture about what, exactly, the LPAT wants to be / should be.  Are we talking about keeping the LPAT as a very limited review body - available only to decide on narrow grounds whether a municipal decision on zoning or official plan amendments appropriately considered provincial and municipal policy?  Or is the LPAT really intended to be something bigger, more akin to the OMB - but without the 'hearing do novo' starting point?  The added parties seem to want it to be the latter, but it seems to me that the LPAT believes it really ought to be the former.

And that seems to be illustrated in what I think is Strike Three for the added parties here.  It seems that the LPAT, out of an abundance of caution that this Kawartha Lakes ruling might be used by added parties to further expand the level of their participation, in the same decision at [62], the Tribunal makes it darn clear that this isn't going to happen in all circumstances - particularly where the LPAT feels that it has enough to move forward.
LPAT Decision - Clarification

And that's why I think the added parties are going to be out of luck on this motion.  The LPAT already has the City's response to the appellants' case synopses.  It does not need anything further from the added parties to come to a "fair, just and expeditious" resolution.

New Evidence

Just one last thing about this.  Note that at the CMC, the LPAT ordered the added parties to individually or together file a motion to allow them to file a case synopsis.  But the added parties actually filed a motion for three things: 1) file a case synopsis; 2) file appeal records; and, 3) affidavit evidence.  Note that the last two matters appear to be out-of-scope with the LPAT ordered - and counsel for the primary appellants certainly brought that to the attention of the LPAT.

While I might not know for sure what "appeal records" are, I can't help but think that they would be documentation pertaining to the case synopses.  As an appellant, I can't help but wonder whether the intention here is to file new evidence - something that I thought the legislation (LPAT Act) and Rules prohibited.  As an appellant, it has not been my expectation that I would ever need to "respond" to someone else's case - the only 'response' that the legislation and rules appear to permit is the City's response to my case (and the cases of the other appellants).

The added parties maintain these materials are needed in order to make their case.  All the more reason - if the LPAT really is to be a municipal decision review panel - to reject the motion of the added parties. And all the more reason the motion will be rejected.

Motion of the City - Jurisdiction

So ya, that was the easy one.  Let's now turn to the motion filed by the City of Greater Sudbury with regards to the case synopsis of the primary appellants.  The City, via motion ordered by the Tribunal, submits that the Tribunal should Order the deletion of certain issues raised by the primary appellant.
CGS - Motion Purpose
Let's take a look at these issues - which are taken from the primary appellant's case synopsis - along with the reasons why the City believes the LPAT lacks the jurisdiction to hear/rule on these issues, and why the primary appellants believe the opposite.

The basis for the City's position on all of these issues is informed by the legislation, and specifically the requirements for appeals under 17(24) and 34(19) of the Planning Act to only be made on the basis of inconsistency with the provincial policy statement; failure to conform with or does conflict with a provincial plan; and, failure of conformity with an official plan.  The City asserts that issues 1, 2, 3, 4, 18 and 19 do not meet these statutory requirements and therefore should not be heard.

Issues 1, 2, 3, 4 and 19 - Willing Host

The primary appellants assert that the City of Greater Sudbury has never undertaken its due diligence to meet the regulatory requirements of O.Reg. 81/12 of the Ontario Lottery and Gaming Act.  This assertion forms a significant element of the primary appellant's arguments related to the matters before the LPAT regarding the casino (for more on that case, see: "The Kingsway Cases at the LPAT: An (Unrepresented) Party's Observations, Part 4: The Strong Case Against a Casino").  Taken together, this is where the primary appellants assert that the City has never undertaken an appropriate evaluation with public participation around whether the City is a 'willing host' for a full casino gaming facility.  And Issue 19 requests production of documents from the City regarding how it arrived at the conclusion the City would be a 'willing host' in absence of a O.Reg. 81/12 process.

The City believes that this really has nothing to do with the matter in front of the LPAT - and that if the primary appellants want to pursue this, the right venue would be something other than the LPAT, given its limited jurisdiction.

After reviewing O.Reg. 81/12, and having earlier participated in the only opportunity for public feedback related to a casino in the City of Greater Sudbury (an information session held at City Hall in the early fall of 2012 - one where the public was asked to comment on four sites - none of which included the present proposed site for a casino; and the public was never asked whether it wanted to host a casino), it's clear to me that the City did not follow the process for determining 'willing host' as outlined in the Regulation.  Despite this, however, it's also clear that the OLG doesn't agree with my interpretation (or that of the primary appellants) of the Regulation in this instance, as the OLG has already greenlighted a full casino gaming facility in Greater Sudbury.  The OLG based its decision on a submission made by the City - a submission that the City now cannot or will not reproduce for this hearing.  

But none of that may matter.  If the LPAT determines it has no jurisdiction to delve into whether the City and OLG adhered to the regulatory requirements for 'willing host', these issues will be dead in the water.

But here's why this is important.  It's the way in which the City has moved that the LPAT lacks jurisdiction.  If the City's interpretation is favoured by the LPAT, then the LPAT will be binding its hands for all time with regard to what, exactly, it can base its own decisions on.  The City argues that the LPAT is constrained by the limited scope of the Planning Act - at least as it applies to appeals related to official plan and zoning amendments.
Primary Appellants response to CGS Motion re: Jurisdiction

The primary appellants can't buy that - and are relying on the LPAT Act for a broader interpretation of the scope of the LPAT's authority.  Section 11(2) of the LPAT Act indicates that "The Tribunal has authority to hear and determine all questions of law or of fact with respect to all matters within its jurisdiction, unless limited by this Act or any other general or special Act." That's a little different from the old OMB Act, quoted by the primary appellants above. The City argues that questions of law and fact are, in this case, limited by the 17(24.0.1) and 34(19.0.1) of the Planning Act.  

And ultimately, I think the LPAT is going to agree with the City for precisely that reason - the new provisions of the legislation, which seek to make the LPAT a decision-review panel for these types of matters, don't authorize the LPAT to delve into the question of whether a land use is actual legal within the municipality.  While I know the City failed to live up to legislative requirements on 'willing host' - it appears to me that the LPAT can't go there.  And based on decisions like Kawartha Lakes, where the LPAT appears to be going out of its way to limit its jurisdiction, I expect the LPAT to exclude the primary appellants 'willing host' arguments.

With one caveat: if the Divisional Court rules in the Toronto Rail Deck matter so as to expand the powers of the LPAT instead of limiting them (rules against the City of Toronto and supporting municipalities), all bets are off.  Of course, it is quite possible that the LPAT will rule on this motion before Rail Deck is resolved.  But I suspect these matters related to jurisdiction are at least part of the reason the LPAT has been silent on the motions so far.

Issue 18 - Bias and Fettering

And it's this issue raised by the primary appellants, moreso than the 'willing host' matter that may have LPAT scratching its head.  Issue 18 pertains to the assertion of the primary appellants that the decision made by the City of Greater Sudbury in April, 2018, and subsequently appealed by the primary appellants, was made on the basis of bias and in fact Council of the City of Greater Sudbury made the decision with its discretion fettered - which besides providing an unusual and perhaps unnecessary mental image, is contrary to law.  The primary appellants assert that since this happened, the decision itself must be rendered a nullity, which I imagine is lawyer speak for "tossed into the trash".

Again, the City says that the LPAT lacks jurisdiction.

But here things are less clear.  Unlike the 'willing host' matter, which was somewhat exploratory on the part of the primary appellants, the matter of fettering isn't - it's absolutely a question of law.  And here the primary appellants argue that the LPAT, via Section 11(2) of the LPAT Act, has the ability to determine questions of law through something called 'shared jurisdiction'.  Petch points out that the old OMB used to do so routinely - and as examples notes how the OMB determined compliance with other legislation and instruments, such as the Environmental Assessment Act, Conservation Authorities Act, Municipal Act, Aggregate Resources Act, etc.  Not only did the OMB rule on these matters, but it went through every effort to ensure that its own decisions complied with them - as required by law.

The LPAT is no different, argue the primary appellants.  And limiting its jurisdiction to PPS consistency, and provincial and official plan conformity would be a complete failure and not in keeping with the need for the LPAT's decisions to comply with other legislation.  Although I don't think the primary appellants say it this way, think of this example: what if a municipality makes a land use decision that isn't in keeping with, say, the Municipal Act, perhaps because the amendment being sought includes policy that directs the applicant to undertake an action not in keeping with that legislation.  And what if the LPAT rules the same way, even after applying the consistency/conformity tests?  If that's all the LPAT can rule on - as says the City of Greater Sudbury - than the LPAT would find itself in a situation of endorsing a municipal decision that would be against the law.

Sorry, but that's just inconceivable.  And the LPAT has to rule the same way here - matters of law, because of shared jurisdiction, are in keeping with its mandate.  The primary appellants actually point to the Rail Deck decision of LPAT that led to the stated case to Divisional Court as guidance here, indicating that the LPAT has already ruled on whether it can take on matters of law as part of its jurisdiction (and answered that question in the affirmative in the Rail Deck decision - albeit while referring the 'difficult' decisions in that matter to the Courts).

The problem with ruling in favour of the primary appellants on this motion is that the LPAT is now becoming something other than a simple municipal decision review panel.  I fear, however, that there isn't any other choice - that horse is already out of the barn, thanks to Rail Deck  

The LPAT can't tie its own hands here.  The primary appellants make a persuasive case that this particular matter of law needs to be heard by the Tribunal, as it directly impacts the City's decision to approve the land use amendments in 2018.  They've provided some serious case law around bias and fettering to support this assertion.  

I'm flagging this one as having the potential to end up in front of the Courts - either by LPAT stating a case itself as it did in Rail Deck, or via the primary appellants.  Their case here for bias and fettering is incredibly strong (remember all of those pre-public consultation comments from municipal councillors like Robert Kirwan - along with an agreement made between the City and the developer to acquire land at below-market value? Or the money the City spent on the Integrated Site Plan - before applications were ever filed? The appellants are sitting on a treasure trove of evidence that Council's decision was fettered - that they had a vested interest in making the land use decision they made. I think that anyone in the City of Greater Sudbury who has been following this matter would agree to that - and many would say, 'So what? The City wanted the KED and that's what it went out and got".  But that's not how the land use planning process is supposed to work.

The Motions of the Primary Appellants

The primary appellants have made motions on two matters: 1) the production of certain documents, some of which are related to the 'Willing Host' matter described above; and, 2) that the LPAT give the primary appellants an opportunity to Reply to the City's Response to the appellants' case synopsis, in accordance with the laws of natural justice.  Let's look at this one first.

Reply

The appellants provided their case synopsis, and the City responded to it.  Now, the next step is to go to a hearing on that basis.  The primary appellants contend that, under the OMB and in every other judicial and quasi-judicial venue, they would be afforded the opportunity to submit a reply to the City's response.  The appellant's case here is hampered by the fact that the LPAT Act and the Rules don't specifically authorize or contemplate a Reply.  But the primary appellants argue that the the LPAT has flexibility around this, in keeping with its Rules - and it should exercise that flexibility, in keeping with the laws of natural justice.

Although I, as an unrepresented Party, could care the less about the outcome of this matter, fact is it's a big deal.  If the LPAT opens the door to Reply in this case, surely it will have little choice but to do the same for all matters before it.  But since its own Rules are silent, and if it truly wants to remain a decision-review panel, than it may come to the conclusion that despite natural justice, there's no need for reply.  And that could be a problem for the whole legal community.

No doubt the LPAT is examining this one very carefully.  I'm going to flag this as having the potential for winding up in front of Divisional Court too, out of an abundance of caution.  I expect to see a stated case to Divisional Court from the LPAT on this. The stakes are just too high to get this one wrong.

Regarding production, the primary appellants have asked the City to produce certain documents related to 'Willing Host'.  If the LPAt finds in favour of the City on 'Willing Host' you can bet those documents will not be ordered produced.  And the opposite is true if the LPAT favours the appellants on 'Willing Host'.

Production

The primary appellants have also requested that the City produce the Downtown Master Plan and "From the Ground Up 2015-25 - the City's Economic Development Plan.  The appellants relied heavily on these strategic documents as part of the basis for their appeals (all of the appellants - me included). The City contends that these documents are completely irrelevant to matters before the LPAT, as they had not been incorporated into the official plan at the time municipal decisions were made).   Apparently, a request had been made by counsel for the primary appellants for the City to provide economic development strategies with similar names, some of which are referenced in the 2006 Official Plan (but have been superceded by newer documents - example: the former economic development strategy was replaced in 2016).  The City has not provided these older documents.

First, let me say this, as part of my appeal is based on the notion that the Downtown Master Plan and Economic Development Plan are related to the matters in front of the LPAT: the City's claim of irrelevance is specious at best, and the LPAT will have to decide at a hearing whether the City is right about this.  I remain convinced the LPAT will decide against the City on this matter, due to a provision in the Growth Plan for Northern Ontario which requires approval authorities to consider these types of plans/strategies when making decisions.

But whether or not that's the case, I just can't understand the City's intransigence here of not providing these documents to the primary appellants. The City can't have it both ways. It can't say that it's new economic development strategy doesn't apply because there is no reference to it in the Official Plan - and at the same time insist that its old economic development strategy, which is referenced in the Official Plan, also does not apply because it's been superseded by the new strategy.

LPAT rules in favour of the primary appellants on this part of the production request.

One Last Motion to Go Through

And finally - the motion that no one has talked about, including the LPAT: legal counsel for Zulich filed a motion to the LPAT to have the appeal of the Minnow Lake Restoration Group filed by John Lindsay disposed of without holding a hearing on the grounds that it discloses no planning reasons.

The LPAT has ruled that this motion was submitted out of order.  It was not one of the motions that the LAPT itself ordered - and therefore Zulich is going to have to wait.   

But John is ready - and in my opinion, the motion against John is complete crap.  I get that I'm not the high-priced lawyer who wrote and filed the motion (and really, what do I know?), but I have absolute confidence that the LPAT will not rule against John because a) he did disclose a number of land use planning questions in his appeal, and those questions were not based on apprehension as the lawyer for Zulich contends, but were rather based on provincial policy and the technical studies submitted by Zulich in support of the applications.

In my opinion (and it is just my opinion - I have no idea how John feels about this), there's a bigger game afoot here.

At the CMC, Artenosi, Zulich's lawyer, made it clear that he would be, at some point, asking the Tribunal to remove one Alexander Bowman from Expert Witnesses list.  Bowman is Minnow Lake's technical expert - and the LPAT has specifically requested that he appear as a witness to speak to questions related to water quality.  And this has to be very concerning to the City and the added parties - because he is the only technical expert presently on the Witness List who is going to speak to those issues.

How the hell did that happen?  Did the City drop the ball on this?  

First, let me say that with regards to Bowman's participation in the hearing, Artenosi might have a couple of really good points.  The questionable point is, as Bowman himself did not provide any evidence to the City in advance of the municipal decision being made in April 2018, can he now appear as an expert for Minnow Lake because John included his evidence as an affidavit in his case synopsis?

The answer to that question - which would not have been apparent in November, 2018 - appears to be "yes".  The LPAT appears to be routinely accepting expert witness evidence filed as affidavits to appellants case synopses - even though those experts did not provide oral or written evidence to a municipality before making a decision.  The LPAT appears to be allowing this as long as said expert evidence doesn't veer into new areas for the appeal.  So in Bowman's case, since John raised issues with water quality as per the Provincial Policy Statement, Bowman can talk about water quality.

My initial reaction to this was that all of this appears to be 'new evidence' and I think that's a part of the concern that was raised by Artenosi at the CMC.  Bowman is likely to say things to the LPAT that no one ever really said to Council.  Sounds 'new' to me - and yet....

And yet a very high profile case in Windsor, with a very high-profile "after the fact" expert, appears to be going forward without anyone blinking an eye.  Windsor CAMPP appealed a municipal land use decision to permit a hospital on rural lands outside of the City's settlement area - something CAMPP argues isn't in keeping with the City's official plan.  After making submissions to Council to this effect, CAMPP filed an appeal.  After filing an appeal, it retained former Director of Planning for the City of Toronto (and former Mayoral candidate) Jennifer Keesmaat to provide affidavit evidence as part of its case synopsis.  Like Bowman before her, LPAT has included her on the witness list.  And I still worry that this opens the door to new evidence.

Bowman as Hinge

Anyway, even though Artenosi isn't likely to have Bowman excluded on that matter, based on materials filed in support of his motion to dismiss John's appeal, I think he's got an ace up his sleeve.  For unlike Keesmaat, who is a professional planner, it's not clear that Bowman's qualifications will meet the LPAT's tests for an expert witness.  No doubt Bowman's "expert" status will be challenged on those grounds - and on the grounds that Bowman has not behaved as an "expert" should - but instead has been acting as an advocate for the Minnow Lake position.  And ultimately, even if the credential thing is decided in favour of Bowman, I just can't see the Tribunal treating him as an 'expert'.  

Which means Bowman's evidence around water quality issues will be no better than my own.  He, like me, will be just some guy offering up our own non-professional interpretation of how we think the PPS should work.  And again, that's not exactly a winning strategy.

But without question, Bowman is a hinge in this hearing.  The City and added parties need to exclude him - because if he is an expert, they've offered no one to rebut what he has to say.  And to loop this back to the beginning where we discussed the motion of the added parties - that's probably why the added parties are seeking to have their own "appeal records" and "affidavit evidence" included now - because they don't want to risk having no one counter Bowman's expert evidence on water quality.

Frankly, I don't think they need to worry. 

It's Miller Time 

And now that I've gone through the motions, it's time for a nice glass of wine.  Or maybe several shots of tequila.  I hope you've had more fun reading this than I did writing it, but I think we're probably both worse off and in a bad place right now.

(opinions expressed in this blog are my own and should not be interpreted as being consistent with the views and/or policies of the Green Parties of Ontario and Canada)