CBRM Says Enviro Report on Nickerson Land Is None of Our Business

The CBRM has an environmental assessment of a property owned by local businessman Jerry Nickerson on which it hopes to construct a second cruise ship berth.

We know the assessment exists, as Nancy King points out in the Cape Breton Post, because Mayor Cecil Clarke has referred to it, as have the consultants tasked with evaluating the viability of the project.

Artist's rendition second cruise berth Sydney, NS

Artist’s rendition of the Port of Sydney’s second cruise berth.

King sent a freedom of information/protection of privacy (FOIPOP) request to the Cape Breton Regional Municipality (CBRM) asking for a copy of the assessment and any staff reports related to its contents but was told by Municipal Clerk Deborah Campbell that no such staff reports exist and the assessment itself cannot be released.

In refusing to disclose the assessment, Campbell gave two reasons under Part XX of the Municipal Government Act (MGA), the municipal counterpart of the FOIPOP Act.

One was that the report was subject to solicitor-client privilege.

Citing solicitor-client privilege is a dodge used frequently to avoid disclosing information in the province of Nova Scotia but how it could be stretched to cover an environmental assessment report baffles me: did Nickerson’s lawyer write the environmental assessment? Did the CBRM’s lawyer write the environmental assessment? Where do the lawyers come into this?

 

Third party

Before I tell you what Campbell’s second reason was, let me tell you what it wasn’t: she didn’t cite MGA section 477(2), which states:

The responsible officer shall not refuse to disclose, pursuant to subsection (1) the results of product or environmental testing carried out by or for the municipality, unless the testing was done
(a)for a fee as a service to a person, a group of persons or an organization other than the municipality; or
(b)for the purpose of developing methods of testing.

If the assessment had been commissioned and paid for by Nickerson, this would seem like an obvious reason to refuse to disclose it. Instead, Campbell told the Post that without the consent of the “third party” (Nickerson) she could not disclose:

‘… commercial, financial, labour relations, scientific or technical information of a third party … that is supplied, implicitly or explicitly, in confidence … the disclosure of which could reasonably be expected to harm significantly the competitive position, or interfere significantly with the negotiating position, of the third party; result in similar information no longer being supplied to the municipality when it is in the public interest that similar information continue to be supplied.’

Here’s the applicable definition of a “third party” according to the Municipal Government Act, section 461(K):

“third party”, in relation to a request for access to a record or for correction of personal information, means any person, group of persons or organization other than
(i) the person who made the request,
(ii) the municipality to which the request is made, or
(iii) a municipal body, a majority of the members of which are appointed by, or which is under the authority of, the municipality to which the request is made;

Think about this: the person making the request was a reporter doing so on behalf of the citizens of the CBRM — i.e., us. The municipality is us. A municipal body appointed by or under the authority of the municipality — that’s also us. Any way I count it, I come up with two parties to this deal: the citizens of the CBRM and Jerry Nickerson.

The citizens of the CBRM are about to spend $20 million on a second berth. The citizens of the CBRM are about to buy land from Nickerson on which to build that second berth. Therefore, the citizens of the CBRM have a right to know the state of that property.

The idea that Nickerson’s business interests trump our rights as citizens to know how our money is being spent is a hangover from a 40-year, neoliberal experiment in privileging business interests over all else in the belief that the rewards would eventually trickle down to the rest of us.

It was a failed experiment.

Why is Nickerson’s ability to negotiate a good price (from us!) more important than our right to know how much we’re going to have to pay — on top of that price — to remediate the property?

 

Transparency

Everybody in Nova Scotia wants to do business with one level of government or another — who else are you going to do business with? Our much-lauded titans of industry make their fortunes dealing with government: they build roads for the government or they build schools for the government or they rent office space to the government or they operate nursing homes with funding from the government or they enjoy government-licensed monopolies over cable TV and internet or they receive preferred access to public shellfish resources from the government. They line up for government money to train their employees (see this week’s WIPSI article) and apply for grants and loans from the government. They cap their careers by receiving the Order of Nova Scotia and the Order of Canada from the government. Is transparency so much to ask in return? I don’t think so. I think it should be the price of doing business with the government.

Mind you, the Nickerson case is special in that the CBRM, by jumping the gun and costing and planning the second berth without first securing the property, has put Nickerson in the catbird seat. He may not get the $6 million he apparently wants for the land but how much do you want to bet he gets more than the $1.5 million the CBRM has budgeted?

And how much do you want to bet the remediation costs are higher than anticipated? (I mean, assuming they have been anticipated, which I’m not entirely sure they have.)

And how much do you want to bet the Post will appeal the CBRM’s FOIPOP decision and have the Privacy Commissioner rule in its favor — after it’s too late for the information to be of any practical use?

What, no takers?

 

 

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