You would expect a forensic audit to be done at arm’s length from the Town that was the object of the audit. But the Town of Fort Qu’Appelle was also the client of MNP; the Town negotiated the conditions of the audit and paid for it. There were therefore structural contradictions that could jeopardize the audit’s independence from the start.
The democratic public interest would clearly be much better served if such audits were done under the auspices of the provincial authority – the auditor, as is the case with the Ombudsman and Privacy Commissioner. This reform in how municipal audits are done is well worth pursuing.
Meanwhile, it remains in the democratic public interest for residents to know what actually happened behind the scenes between the Town and the MNP auditors. This will help determine how independent the audit was and whether the 700 plus Fort Qu’Appelle residents who called for the audit got their money’s worth. The cost of the audit quickly escalated from an estimated $40,000 to around $70,000, which itself should be investigated.
We now have located in the FOI files the notes taken at meetings and during conference calls between Town officials and MNP which occurred Jan. 8th and 25th and Feb. 8th, 2018. We have a copy of the Interim Report issued by MNP on Feb 12, 2018 and Change Order # 2, dated Feb 14, 2018, which lists further costs of $13,700 for the audit agreement with the Town. (Change Order # 1, issued Jan. 15, 2018, had already added $3,500 to the audit costs for MNP agreeing to do a public meeting on the final report.) We are still trying to get the full Engagement Agreement, which, interestingly, was not released in the FOI files. This would help determine the scope and depth of the audit that the Town and MNP negotiated.
There likely were other undocumented communications but we can’t say anything about these, without people coming forward. In a future posting we will look in depth at some rather astonishing emails between Town and MNP officials and consider whether there was any indication of collusion that could jeopardize the independence of the audit. There is an abundance of information in these extensive FOI files about which the voting public and taxpayer have a right to know.
The notes from the Jan. 8th face to face meeting of the Town with MNP, which was attended by all but two councillors, state that “We need to ensure we are on task achieving the objective.” They continue “no determination of fault or fraud will be identified. (The audit is) only a factual account.”
This reassurance that fault that may have occurred with the previous council, which sold this land to Abaco, will not be identified, seems very premature. The Ministry of Government Relations is very clear that a financial audit is to identify “instances of fraud…improper transactions…non-compliance with statutes and bylaws…” At this point in the audit, the assembling of facts hadn’t even started, so all the rhetoric about “fact finding” already seems a little shallow. Could this statement from the first documented meeting be seen as a pre-judgment, a mind set and even a bias operating from the start? Other information from the FOI files will help to more fully answer this vital question.
It is unlikely that Town or MNP officials thought the petitioners or QVEA would ever get access to these behind the scenes records. The notes from the Jan. 25th communications are even more revealing. They indicate that an assessor with Crown Appraisers “was contacted”, and add that he was “surprised of the sale price of $1 for each of the two properties.” (This refers to V with the old Indian Hospital on it plus Q, which were “sold” as a package to Abaco for $1; and Y, all floodway, which was also “sold” to Abaco for another $1.) Below this, in the notes taken at this closed meeting, it says that MNP “spoke to someone for (sic) the province – indication that properties sold for less than fair market value - needs public notification.” However, public notice was not given when the Town sold this land to Abaco. So why did the audit not do serious follow up on this failure in process?
These notes also state that there “may have been a duty (to consult) for environmental assessment for hospital property because of the Pasqua First Nation” and further that MNP “may have to talk to councillors about how values were calculated for sale of properties”. We now know from FOI files that the Town had previously asked another interested party for $302,000 for Parcel V, including carrying all demolition and disposal costs for the old Indian Hospital. This Parcel along with Q later went to Abaco for $1.00. Again, why did the audit not do serious follow up to investigate this discrepancy?
A little later the notes say “They still need to determine if/when they will speak to the community group.” The notes continue: “Need to understand their motivation for the petition.” In this regard, MNP is presumably doing an independent audit of the Town resulting from the 700 plus local citizen petitioners who called for the audit, which was their democratic right. MNP should be focusing on fact finding, not talking about the motives of the citizen-based groups.
And why would MNP even be considering not talking to the petitioners who initiated this audit? Unless, that is, it and the Town had political motives for not doing this! In view of these notes we need to consider whether at this early point in the audit the Town and MNP were already acting like they were colleagues working together to manage the perception of local politics. This would clearly compromise the independence of the audit.
In a future posting we will document how every communication between the petitioners or the QVEA, with MNP, is immediately forwarded by MNP to Town officials, which is hardly an arm’s length relationship. Nor does this suggest that the petitioners’ contact with the auditors, as part of MNP’s fact finding process, was being protected by confidentiality. Using the FOI files, we will also look further at what MNP and the Town say, in private, about the citizen petitioners and the QVEA.
The Feb. 8th communication between Town and MNP officials came after the interview of the petitioners and the QVEA, which did go ahead on Feb. 6th. The notes say MNP “spoke to petitioners – reviewing 100 pages of documents provided.” But, MNP then indicated that they had “no concern about concrete in lagoon or environmental concern.” Again, we see indication of pre-judgment, as, in the end, the most serious factual errors in the final MNP report had to do with covering up the Town’s breaches of environmental regulations by allowing toxic dumping by the old lagoon site. In late March 2018, while the MNP audit was concluding that the Town had followed all environmental regulations, the Town was being served an Environmental Protection Order (EPO) by the Minister of the Environment for not doing so. And MNP had access to all this information which it clearly decided to ignore or perhaps suppress. This put the credibility of the audit into serious question; a future posting will document this in detail.
It is worth noting, however, that the interview of the petitioners and QVEA did seem to affect MNP’s mindset regarding conflict of interest. The notes indicate that MNP did “searches in North Dakota and Sask via Brian Janz and Abaco.” In brackets the notes say: (Janz) “owns 25% of Sask Company”. The notes continue: “Looking at whether the report will have to go to Minister. Re: Brian Janz may have been in conflict of interest.” This indicates that MNP is reconsidering its original reassurance about not looking for fault. In a future posting we will track in factual detail how MNP went on to handle this matter and critically investigate the way the issue is addressed in its final report. It is noteworthy that though the final report concludes there was no conflict of interest, when pressed at the April 26, 2018 public meeting by a Fort Times reporter, the MNP official running the meeting admitted “maybe” there was a conflict of interest. This public admission after the final report was already submitted to the province is very problematic.
There is strong reason to believe that MNP’s audit did not do its due diligence on this matter. There is clearly an overriding public interest in carefully surveying all the evidence pertaining to conflict of interest to finally get to the bottom of this. This matter will be fully documented in the forthcoming Posting # 3.
The Feb. 12th Interim Report to the Town also has some revealing information in it. It acknowledges that “The Petitioners have done a good job at identifying the issues and the land sales under review.” This is not something that either MNP or Town officials were ever willing to publicly acknowledge. If anything, they did and said some things to try to delegitimize or downplay the concerns of the petitioners and QVEA.The Interim Report implies that MNP is going to seriously look at the issues that the petitioners and QVEA raised. The Report says, “A group of concerned citizens raised a petition under the Municipalities Act regarding these transactions and others. Specifically, the Abaco purchases were questioned as Brian Janz, a councillor involved in the sale to Abaco, declared his pecuniary interest (as a director of Abaco) after the land sale negotiations had begun. Mr. Janz is now a shareholder in Abaco.” Note that MNP unambiguously says Janz was “a councillor involved in the sale to Abaco”, which would certainly constitute a conflict of interest.
Actually, it is even worse than this, for, as we will discuss in Posting # 3, Janz did not declare his pecuniary interest until after the sale was made to Abaco. (The sale of Parcel V and Q was made on Sept. 13, 2013 and Janz did not declare his pecuniary interest until Dec. 21, 2013.) Even present Mayor Whiting admits in his Jan. 2, 2018 presentation to MNP, which we located in these FOI files, and will discuss at length in Posting # 2, that in 2013 “Abaco (Brian Janz) had informal meetings with Town”. Mayor Whiting is directly associating councillor Janz with Abaco. He is acknowledging that Janz was acting on behalf of Abaco in “informal meetings with the Town”, while he was a councillor, which would clearly constitute a conflict of interest. Janz tried to semantically side-step the conflict of interest by claiming that Block V and Q were initially sold to the Abaco Group, and later changed to Abaco Energy, but these are the same business associates who would benefit from the land acquisition.
MNP’s Interim report also states that “The Petitioners have sent several emails to…MNP with information on persons to be interviewed. MNP is conducting due diligence regarding whether these interviews are required for this review”. But below it then states that ”Mr. Janz should be interviewed in person. Mr. Janz should be provided the opportunity to provide an explanation of the circumstances of the sale of the Hospital and his involvement with Abaco Energy.” But it continues, “It should be noted that Mr. Janz is under no obligation to meet with MNP”, which shows that the audit does not have a lot of clout. And, in view of what information was included in, and excluded from MNP’s final report, you have to wonder whether the auditors wanted an interview with Janz, to provide “the opportunity to provide an explanation of the circumstances of the sale…and his involvement with Abaco” as a way around the issue.
If facts can’t be compelled, they can remain hidden from the public. Cal Tulik of Apex Enterprizes refused to give MNP an interview, so that crucial factual information about actual demolition and disposal costs for the old Indian Hospital, which were highly relevant to the calculation of fair market value (for Parcel V), were never disclosed. A future posting will investigate this major flaw in fact finding in the final audit report.
This Interim Report notes that 51 land transactions were identified, “which is greater than 30 identified”. It also says “We located Block Y in this review”, which is a little strange since Block Y, which was sold to Abaco for $1, was clearly identified in the original petition and was highlighted when petitioners and the QVEA were interviewed. Y is all floodway, which should never have been sold (given away) to Abaco by the Town for commercial development. A future posting will discuss how the audit stick-handled around this matter.
Two days later, on Feb. 14, 2018, MNP asks for another $13,170 for completing the audit. The issues which it claims require more analysis, to justify the added costs, are very noteworthy. Change Order # 2 repeats that MNP “identified 51 land properties including property Y (a property adjacent to the Fort Qu’Appelle Hospital property) which requires assessment.” The belated focus on Y is a bit puzzling for, as we noted above, the petitioners and QVEA had highlighted Parcel Y (along with V and Q) from the start. The sale of Y should clearly have been included in the original agreement and costing.
In the preamble to Change Order # 2 MNP says “Demolition of the Hospital was conducted by Apex Enterprizes (on behalf of Abaco) who subsequently acquired a three-acre parcel of land at the old Lagoon in exchange for services rendered to the Town”. While MNP is becoming aware that there was a side-deal between Apex and the Town, it is not linking this to Abaco reducing its costs for demolition by disposing of the rubble from the old Indian Hospital at and by the old lagoon. Nor is it considered how this would affect the calculation of fair market value for Parcel V. This is vital information for the audit to carefully consider since the justification for the Town selling V and Q to Abaco for $1 was that the demolition and disposal costs would supposedly be several hundreds of thousands of dollars. Nor is MNP connecting this to the use of the old lagoon area as a dumping ground and the environmental issues that led to the March 21, 2018 EPO which compelled the Town to clean up the contaminated soil dumped there. (This apparently took 42 truckloads).
This turns out to be typical of MNP’s “half-baked” approach; it only gets half of the picture before it draws its conclusions, which suggests a dumbed-down approach to “fact finding”. The standards of fact finding are nowhere near what is required in civil, let alone criminal law or even investigative journalism. If anything, they are closer to politicized fact selecting than based on anything that approximates serious social science.
Change Order # 2 also notes something that the QVEA had brought to MNP’s attention, after getting access to FOI files from the WSA. The Order says that “Abaco Energy attempted unsuccessfully to purchase two parcels of land from the Water Security Agency in Saskatchewan as the sale was challenged by Pasqua First Nation.” Actually, while it is true that PFN challenged the sale in court, the files given to MNP clearly showed that the province’s Community Planning branch interceded because much of this land (in Parcel W and Z) was in the floodway, and could not be sold for commercial purposes (a marina) and was therefore taken off the market. It also added that the floodway area probably should be declared an Environmental Reserve. This is another example, of many others that have come to light with the aid of our FOI research, of MNP having some but not all of the relevant facts in place when it drew its conclusions. There certainly was not comprehensive fact finding. Rather it is starting to look more like fact selection to shore up a particular viewpoint.Under the “Description of Change”, included to justify the added costs of the audit, MNP lists three issues:
1): “Block Y is a parcel of land which has been sold to Abaco and forms the lands which access the Hospital property. This land should be appraised.” As noted above, we wonder how this could have been missed in the initial assessment, as Block Y was always highlighted as one of the three parcels sold by the Town to Abaco. There is some kind of slip-up here, and yet MNP is using the sale of Y to justify further costs. And this is not even an accurate description of Y; it doesn’t “access the Hospital property”. Rather it was given to Abaco because Pasqua First Nation (PFN) was going to do a court challenge to the proposed sale of provincial Crown land (Parcel W and Z) to Abaco. This Crown land abutted the lake and Abaco needed Y to ensure that it had an alternative way to access Echo Lake, if a marina was ever to be possible. Furthermore, the audit makes no mention that Minutes approving the sale of Y to Abaco were never located, which would be a fundamental matter for any appraisal.
It is more than ironic that Y was sold to Abaco for $1, and yet MNP ended up charging the Town an additional $2,200 for the “Appraisal of Parcel Y”. However, Town officials likely would not want to squabble with MNP about costs, and risk these contentious matters getting more public attention, as they clearly wanted the audit to function politically to try to make the whole matter go away.
2): To justify additional costs to the Town the Change Order # 2 notes that there were “8 commercial properties identified in our testing and by the Town” and continues that “One of those properties was sold to Tulik Holdings (Cal Tulik who is the owner of Apex Enterprizes). We understand that this property was sold for below market value…” We wonder why it is that such follow up, based on the initial land sale assessment and forensic testing, wouldn’t be included in the initial audit agreement and costing, as that is what an audit would entail.
3) Most interestingly, the third reason for additional costs to the Town is: “Mr. Janz has a pecuniary interest in Abaco and given these latest revelations, MNP believes that an interview should be conducted in person with Mr. Janz if he consents.” It is very noteworthy that MNP refers to “these latest revelations”, which suggested a conflict of interest. In Posting # 3 we will carefully document from the FOI files all the revelations about this matter, including those MNP either ignored or obscured.
While MNP seems to be getting more interested in conflict of interest, it clearly dropped the ball in its final report. And we need to learn more about why this happened. In its final report MNP quotes one councillor, Jeff Brown, who was intimately involved in these land sales to Abaco, saying that Abaco director and Town councillor Brian Janz recused himself. But what happened to the contrary information that came from the previous mayor and councillors? And to a careful consideration of all relevant chronological facts, including that, as MNP itself says in its Interim Report, Janz was “involved in the sale to Abaco”. Or that Mayor Whiting acknowledges in his report to MNP that Janz was acting on behalf of Abaco in informal meetings with the Town? Or that Janz only declared his pecuniary interest after the sale of the Town land to Abaco had occurred.
All relevant information should now be carefully assembled, referenced, reviewed and probably forwarded to the province for reconsideration. Of course, it is always possible that the province, which was itself involved in behind the scenes dealings over potential Crown and floodway land sales to Abaco, may prefer to let sleeping dogs lie. Watch for Posting # 3.
It is very noteworthy that in Change Order # 2, right after stating more money is needed to interview Abaco Director and Town Councillor Brian Janz, MNP says “In the instance which the Town of Fort Qu’Appelle does not wish to proceed with aspects in this engagement, the Interim Report will be finalized with appropriate limitations as per our original engagement.” This may be one of the most pertinent statements in these FOI files on the MNP audit, for it suggests that the Town, supposedly the object of the citizen-required audit, is in effect being given a monetary veto over the depth of the investigation. This could be seen as an indication of collusion, which we will investigate more thoroughly with the aid of the full 900 pages of FOI documents. It is clearly in the public interest to see what the “appropriate limitations as per our original engagement” actually means. So far, we have not been able to get access to that part of the Engagement Agreement (Appendix A), which likely deals with this.
Also, it is curious that MNP is asking for additional money for interviewing Janz, when, right in the notes, from the first meeting held about the audit on Jan. 8, 2018, Brian Janz is listed as #2, after past mayor Ron Osika, under “who does council think MNP need to talk to”. Is this a form of double billing? What is going on here?
The Dec. 21, 2017 letter from the MNP to the Town re “Investigative Services”, gives an estimate of $40,637 for the audit. Other costs were also implied. Change Order # 1, approved by council on Jan 25, 2018, added another $3,500 for MNP to do a public meeting. And Change Order # 2, issued on Feb. 14, 2018, asked for an additional $13,170, which we have shown had questionable rationales. The voting taxpayers clearly have a right to know how a $40,000 audit turned into a $70,000 one.
The files we have obtained on the audit through FOI raise serious questions about the independence of the audit. They also raise some serious questions about the quality of the audit, and give reason to believe that some vital corners were cut. They also raise questions about whether there was sufficient local fiscal oversight over the rising costs of the audit.
A later posting will look at FOI communications between the Town and MNP, when the report was being finalized for public release. We will look at revealing communications about the planning and running of the April 26, 2018 public forum on the audit report, which will also add important information about what was occurring behind the scenes.
Oct. 23, 2018
What did he know about the loss of public access to the marsh area, private homes and public institutions resulting from these Town land deals? About the side-stepping of Fair Market Value? About the Conflict of Interest occurring? And about the behind-the-scenes maneuvering to bypass environmental protections and get floodway Crown land into the hands of Abaco?
Our mission is to protect and restore the health of the Qu’Appelle Watershed. Part of this is finding out as much as we can about decision-making about land use in the valley that will detrimentally affect the health of watershed habitats and water quality in the lakes. And, most vital, in terms of public participation and the health of our democracy, we need to make what we find out available to the wider public who vote and fund governments at all levels. It is our view that a more vibrant democracy will lead to better environmental care. (See our Brief on Electoral Reform under “Campaigns” on this web site.)
It goes without saying that transparency is required for there to be accountability. But transparency can be very difficult to achieve, especially if politicians or administrators try to cover up what is happening. It would be ideal if we were able to take elected officials at their word, but we know that there can be a wide gap between what is said and admitted in public and the “whole truth and nothing but the truth…”
So how do we get closer to the truth, and, in the process enhance local democracy?
Since 2016 the QVEA has steadfastly compiled information from records and files on the land deals with Abaco. From the start we knew that proposing a big-boat marina in a vulnerable marshland was not a good idea. Thankfully, along with Pasqua First Nation (PFN), we helped to stop the sale of old PFRA Crown land, transferred to the province, to Abaco for a marina. And due to our whistle blowing, thankfully the province enforced its environmental regulations and on March 21, 2018 issued an Environmental Protection Order (EPO) to the Town to clean up the contaminated soil it had allowed to be dumped in the old lagoon area, in the aftermath of Abaco demolishing the old Indian Hospital.
However, a huge environmental injustice remains. It is unconscionable that an energy company based in North Dakota still owns all access roads and trails into the marsh area. And it should be clear that this unacceptable situation is totally the result of the Town’s land deals with Abaco. The province, so far, has appeared to follow its Community Planning regulations.
Parcel V, where the old Indian Hospital existed, had a public road for nearly a century which led into the marsh area. Parcel Y has the Trans Canada Trail to the marsh on it. Both were totally privatized when the Town sold this land to Abaco. And Parcel Q, also given to Abaco, was not to be sold because it provided access to Town drainage, the Echo Lodge Special Care Home emergency and supply entrance, and was to provide access to condos planned prior to the land deal. We will document this all below.
On June 13, 2017 we wrote Mayor Whiting stating five concerns about the land deals with Abaco (selling of V and Q, of Y, public access, fair market value and toxic dumping by old lagoon). Writing in the June 23, 2017 Fort Times, likely in response to this letter, Mayor Whiting stated, under the heading “Who speaks for past councils”, that “It is doubly unfortunate when the facts that are known and duly recorded concerning transactions continue to be inaccurately related…” We share Whiting’s stated commitment to facts and evidence. But what facts were allowed to be “known and duly recorded” at the time? What facts were being withheld from the public about what Whiting referred to as “the applauded project”? And, what facts do we know about now? An objective chronology will show that the Town was not voluntarily providing full disclosure about these land deals and it took some good Fort Times investigative reporting and our and other citizens’ digging to bring things into the light.
Mayor Whiting continued: “The pursuit of truth and the righting of wrongs is admirable…” We would like to take this at face value. Whiting continues “but in our time of continued acceptance of political ‘spin’ and half-truths it is important to be a critical listener/reader and form your own opinions.” We agree there has been a lot of “spin” about these controversial land deals, and that spin and half-truths are never acceptable, but let’s locate where the spin is coming from. Whiting ends his piece calling for “well-informed approaches”. We trust that the Mayor will be pleased that we continue to become better informed with the help of information from Freedom of Information (FOI) files.
What new facts have come to light, which will strengthen a well-informed approach? We now have 900 pages of FOI files from the Meyers Norris Penny (MNP) audit. In this we found Mayor Whiting’s Jan. 2, 2018, 23-page document, entitled “Old Hospital Time Line”. This is a fairly comprehensive chronology of the land deals with Abaco, presumably done to help the audit. It includes 102 entries, with dates of decisions and important events. However, it is noteworthy that 21 of these entries have been “severed”, i.e. excluded, due to various references to the Privacy legislation: (13)(a)(b), 13(1)(a)(b), 15(1)(b), 18(1) and mostly 21(a)(b)(c).
Were this information publicly available this would have been a much larger document than 23 pages, and we would know much more about the behind-the-scenes background to these contentious land deals. The missing parts not only restrict what the voting and taxpaying public can know. But, if these documents were also unavailable to the MNP, this would greatly undercut its ability to do comprehensive fact finding.
WHITING’S OLD HOSPITAL TIME LINE:
What can we learn from the entries that were not severed? Please read on.
The FOI files on the audit contain a Jan. 2, 2018 email from Mayor Whiting to CAO Larry Davidson which says: “Attached is a copy of my rough timeline notes relating to Town’s acquisition of the Old Indian Hospital through to the sale to Abaco and beyond”. This email continues: “Notes are based on the review of documents on file”. As such, we can conclude that all this information was available to the new mayor and council, and that the information is a reliable basis for gaining new insights into and creating more public transparency about these land deals.
We don’t know whether to take the phrase “my rough timeline” as an indication that there is much more information, besides the 21 severed documents, that is available but not included. Because we also now have hundreds of pages of Town files, we are in a position to assess the completeness of the entries. So, even with its apparent limitations, Whiting’s document allows us to take a “well-informed approach” and consider several questions:
1) First, we can now find out what Mayor Whiting actually knew about these land deals with Abaco;
2) Second, we can now compare this with public positions he has taken on these matters;
3) Third, we can consider the implications of the information he provides for gaining a fuller understanding of the controversies and clash of opinion over the land deals; and
4) Finally, we can now determine whether any information that Mayor Whiting includes in his document was withheld from us after we made our Access to Information request to the Town on Aug. 17, 2017.
Like us, you will find what follows to be very enlightening. Please read on.
The controversies over the land deals with Abaco have clearly polarized parts of the Fort Qu’Appelle community. For some, the issue has become the cost of dealing with the fallout from these land deals, and there is little doubt that the Town was overcharged for the MNP audit. (See Posting # 1.) For others, there is still an interest in getting to the bottom of what actually happened. If you consider what information was provided to MNP and compare this to what ended up discussed intelligently in the final report, there’s really no other conclusion than that they cut big corners when fact finding and made some glaring errors of omission. We document several examples in our ongoing Postings.
But the polarization left in the wake of the inadequate and costly audit doesn’t advance the ability to better protect the marshes, lakes and watershed. Nor does it mean that the wider public, that perhaps hasn’t followed this closely or ever read the MNP report, is going to get a better understanding of what actually happened. Polarization can mean that the opinions of vested interest groups, which can opportunistically select on “facts”, gets taken for the whole truth and nothing but the truth. This never gets to the truth and hardened opinion always stands in the way of getting the bigger truth.
Nothing has polarized Fort Qu’Appelle more than the dispute over public access, particularly the lack of legal public access of residents to their condos, which were built between the old Indian Hospital (Block V) and the road to Town drainage and Echo Lodge (Block Q). It is vital to remember that when V and Q were sold to Abaco for $1, the roads were all privatized without creating any easements to guarantee legal public access. This fundamental flaw in past decision-making has never been honestly admitted by Mayor Whiting or the majority of council.
Consequently, on Oct. 2, 2017 the Town received a petition signed by 619 fair-minded ratepayers calling for re-instating legal access for all condo residents. But rather than acting on this, Town Officials decided to hold a referendum which was held in July 2018. And the Town and some interest groups successfully mobilized to get out a negative vote. Town officials should have at least remained neutral, and provided balanced information; they did not. But, that referendum, though not the matter of public access, is now water under the bridge.
However, the bigger truth still waits to be discovered. And with the information provided in the Freedom of Information (FOI) files on the audit, we can now determine what Mayor Whiting and other members of Council knew about the background to the controversy over public access. We can also determine, from this newly released information, whether Mayor Whiting and other Town officials have kept any pertinent information from the voting and taxpaying public.
There is some very interesting information about this in Mayor Whiting’s Jan. 2, 2018 document. Please read on.
Q NOT FOR SALE:
Mayor Whiting’s May 13, 2008 entry states that there was a letter to the Town from someone (two names are redacted) inquiring about “acquiring Lot Q”. This is the lot with the road between Echo Lodge and Willow Court condos, which the Town used for drainage purposes and which provides access to Echo Lodge’s east rear supply entrance. Whiting’s entry goes on to quote from the Town record that, “Lot Q said to be unavailable due to Town Engineer stating it was required for snow removal”. From this entry we know that Mayor Whiting definitely knew that a previous Town council had decided not to sell Block Q.
Mayor Whiting knew this from several Town records. Under Oct. 18, 2010, when the Town was negotiating with Pellaway Bay Resorts over the sale of the old Indian Hospital land (Block V), Whiting’s entry refers to a Town record that, “Parcel Q is reserved for expansion to Echo Lodge and/or extension of storm sewer requirements in the future…?” In the actual document, entitled Pellaway Bay Proposal, there is no question mark.
Why Mayor Whiting never admitted any of this in our direct discussions, in public forums, or to the Fort Times, only he can say. But we now know for certain that he knew that prior to Abaco being given Q, which led to the contentious problems and polarization around public access, the Town had consistently stated that Block Q was not for sale.
Under Mayor Whiting’s Nov. 4, 2010 entry, he refers to Pellaway’s attorney meeting with Town officials, including Mayor Osika. Whiting’s entry from the Town record states “…first issue was availability of Parcel Q. Gerry (of Blue Sky Management) pointed out that there was a storm channel which the town would be reluctant to give up as well as a consideration from several years ago to perhaps utilize that parcel of land for an extension to Echo Lodge…”
Mayor Whiting does not include all documents that indicate that Q is not for sale. He fails to note that in the April 28, 2011 letter to the Town, on behalf of Pellaway Bay Resorts, Q has been taken off the table, in the continuing land sale negotiations.
Based on what Mayor Whiting found in Town records, we can definitely conclude that the Town was consistent over these three years, from spring 2008 to spring 2011, that Parcel Q was not for sale. The reasons were clear – the Town needed this for drainage, snow removal, etc. and this land might even be used for expanding Echo Lodge. Why, then, has Mayor Whiting not publicly acknowledged this? And, most vital, what happened so that Abaco was treated differently and was given this Town land? We will pursue this in Posting # 3 on Conflict of Interest.
BLOCKING WILLOW COURT RESIDENTS:
What made this matter of public access so polarizing was Abaco physically blocking Willow Court residents from accessing their homes off Block Q. This was done on Nov. 3, 2016, just after Abaco Director Brian Janz and his colleague Jeff Brown lost their seats on the Town council. This mean-spirited act not only showed the wider community that Abaco now controlled these public roads but what kind of neighbour it was going to be.
One confusing aspect of this controversy has been over whether Willow Court condos should have ever relied on Block Q for access. Abaco supporters, especially past councillor Jeff Brown, have consistently blamed developer Larry Schultz for the mess, whereas Schultz has stated that he had designed the condos based on access off Q. And, with the Town consistently saying Q would not be sold, you can see his point.
What do Mayor Whiting’s entries tell us about this aspect of the controversy?
Under his July 15, 2014 entry, it says “Initial drawings show a 6 + unit oriented north/south on the lot.” The submitted drawing shows access off of Q. This confirms what Schultz has always stated, that Willow Court condos were designed with access off Block Q. Yet when we have directly raised this with Mayor Whiting, with past CAO Gail Sloan or present CAO Larry Davidson, they will not acknowledge this, claiming Schultz simply failed to ensure that the scaled-down 4-unit design had direct access off Broadway. This scapegoating has become the official “party line”. But why would they want to keep it a secret that Willow Court condos were originally designed to have access off Q? Why wouldn’t they admit that the Town made a huge error in selling Q, which it said it would not do, and doing this without creating any easements? To what end?
On Oct. 24, 2017, we received Access-to-Information, Town records on these land deals with Abaco. These files clearly showed that Schultz had done what he said he had done. On Dec. 19, 2017 the QVEA presented an 8-page brief “Why the Town Needs to Act on the Petition to Create Easements” to the Town council. We documented in detail what their own records showed. This was reported in the Jan. 11, 2018 Fort Times; see story “QVEA Wants Council to Right Past Wrongs”.
The silence of the Mayor and other councillors was deafening; they simply would not respond, at all, to any of this information which all came from their own files. It seemed like they had privately decided not to say anything publicly about the matter. Were they being so mum for a reason? Were they given any legal advice to not discuss these facts in public? From Mayor Whiting’s own entries, we now know that he knew about this background, but has chosen to continue to keep quiet about it. Again, to what end?
Town officials, including Mayor Whiting, along with past councillor Jeff Brown, have tried to divert attention from this and make the lack of access issue all about Schultz and Willow Court. But, as we’ve already documented, and Mayor Whiting fully knows, the reason why Q was not to be sold was because of public drainage and Echo Lodge; Willow Court condos weren’t even built at the time the Town refused to sell Q to Pellaway. Because the Town had consistently stated that Q was not going to be for sale, it would make perfect sense for Willow Court to also use this public land for access. And we now know from Mayor Whiting’s own document that he and his council colleagues knew that the initial drawings submitted to the Town proposed just this.
Mayor Whiting can also be politically selective about what he includes in his document. And something very pertinent to this matter is missing. We brought this to the attention of Mayor Whiting and Council, when we presented to them on Dec. 19, 2017. We showed them that their own files indicated that the Town’s CAO Kelly Schill had not officially informed Schultz that Q had been given away to Abaco, until Aug. 7, 2014. This was eleven months after the land deal was made. This was several weeks after Schultz had submitted plans for the Willow Court condos to be built off of Q. In this letter, it is noteworthy, regarding the matter of conflict of interest that we will take up in Posting # 3, that CAO Schill refers Schultz to “contact Brian (a local contact for Abaco)”; this is Brian Janz who is on Town Council at the time. This conflict of interest was clearly something that the audit should have explored, but instead ignored. We know that Mayor Whiting was aware of this important information, for this letter was included in the Access-to-Information package that he sent to us on Oct. 24, 2017. So, why did he not include this in his document?
Knowing that Mayor Whiting was fully aware of this background is what makes the statement in the Town mailout prior to the referendum so difficult to fathom or accept. Town officials say, as “background” to the vote on Willow Court residents getting legal access to their property, that: “The developer of the condo failed to provide access from Broadway St. to the condo parking lot along the eastern side of the property…Access from Broadway St. was being taken across adjacent private lands until the property owner refused passage.” This is not at all an honest description of what happened. Note that “Abaco” isn’t even mentioned. There is no mention that Q was not to be sold. There is no mention that legal public access was lost to the Town’s own drainage and to one of Echo Lodge’s emergency entrances. There is no acknowledgment that the Town completely bungled this matter by failing to create easements, which is all that the 619 fair-minded petitioners were asking the Town to do.
BLUE BILL BAY ESTATES:
Focusing on Willow Court has always been a ploy, presumably to cover up the past Town Council giving Q away to Abaco, and doing this completely irresponsibly, without any protections for public access. The Town’s own records, which Mayor Whiting has seen, indicate that drainage and Echo Lodge access were both involved. A big-boat marina being built in a vulnerable marshland and the loss of legal public access to the incredible marshland were always our major concerns. But, the legal access for Blue Bill Bay Estate condo owners was also undercut when the Town sold Parcel V to Abaco without any easements.
Does anything in Mayor Whiting’s Jan. 2, 2018 document address this?
Sure enough, under the Oct. 5, 2014 entry, Whiting refers to an email from the Blue Bill Bay residents “Re: Effective access for Blue Bill Bay Condominium…clarification regarding effective traffic access for residents of Blue Bill Bay Condominiums.” These residents would obviously be concerned that the road between the old Indian Hospital and Nurses Residence, off of which they had their rear access, all approved by the Town when these condos were built, had been totally privatized without easements. There was at least one other communication between these condo residents and the Town about their concerns about losing legal access to their rear entrance. The Jan. 12, 2017 Fort Times reported that 13 residents had sent the Town a letter of concern about the possibility of Abaco blocking their access.
It was therefore quite disingenuous for the councillors who attended the June 21, 2018 public forum, to claim that they were unaware of the Blue Bill Bay condo owners’ concerns. The Dec. 2, 2016 Fort Times reporting on the Town’s Nov. 24, 2017 Council meeting, states that this matter was discussed. It reports that Councillor Doug Blatter said “I’m very confused. I’m worried about the condos because (Blue Bill Bay access) could be blocked off tomorrow.” It was also very hypocritical for Mayor Whiting not to include, as an entry in his document, that on Mar. 17, 2018, the Town passed Motion 2018-0104 which directed “…the administration and mayor to negotiate an easement with Abaco for our storm sewer drainage on Parcel Q.” It is most noteworthy that this was one of the three actions that the 619 ratepayers called for when they submitted their petition to the Town. The question remains why the Town wouldn’t act on the two other issues involving residents regaining access.
The Dec. 2, 2016 Fort Times reported that at the Nov. 24, 2016 Town meeting then CAO Gail Sloan stated, “We need to ensure we have a relationship with Parcel Q owner…That drainage is functional and we need to go on that site when it’s required. That would be our priority…” It is noteworthy that the lawyer’s comment was relayed by the CAO as “know that you’re dealing with a corporation…Tread carefully.” Apparently in Fort Qu’Appelle, at present, what is good for the goose is not good for the gander.
The “no” vote on the referendum over re-instating public access means that Blue Bill Bay residents are now completely beholden to a North Dakota company, Abaco, to guarantee access to the rear of their homes. The loss of legal public access for Blue Bill Bay residents will also likely have repercussions for the resale and market value of their property. And we know what Abaco is capable of, after it built the physical barrier that has blocked Willow Court residents from their homes since Nov. 2016. The broader public is also now beholden to Abaco when they walk to the lakeshore over the road on Parcel V, or on the Trans Canada Trail on Parcel Y, as all of this land was completely privatized when the Town made their land deals with Abaco. Simply put, the Town gave “the commons” to this corporation.
In their mass mailout to sway the referendum, Town officials stated: “Should the need arise, there is adequate space on the west side of the Blue Bill Bay lands to construct a driveway from Broad St. to the north parking facilities.” Such a road would go across and destroy their front lawns and yards, further depleting property values. This would likely also breach the Town’s own setback requirements. But, Town officials were completely willing to throw the condo owners under the bus. This is a stark example of a local government defending the interests of a corporation, a foreign one to boot, over the public interest or environmental interests, of valley residents. This is indeed a sad time for the reputation of the Town.
Mayor Whiting’s entries indicate that he knew all about this background. It is well documented in the Town’s own records. However, Whiting and the majority of council have chosen not to be candid with the public about the factual background to the controversy over the privatization of public access. They are not only trying to cover up what the past council did, but what they have also now done.
Shame on them!
REFLECTING ON THE REFERENDUM:
After the referendum, which voted down creating legal public access on these privatized roads, Mayor Jerry Whiting posted the following message on Fort Qu’Appelle’s Facebook (July 11, 2018):
“The referendum was not about a win or a loss for anyone. It was about hearing directly from informed residents who have a vested interest in the response to, and outcome of, an unusual circumstance facing our community.
The majority opinion on the matter is clear and it is now up to Council to move forward in a manner that respects the direction provided.
While not everyone will welcome the outcome, on behalf of Council, I wish to thank all of the residents who turned out to vote.”
How does his political posturing stand up in view of what we factually know about the “unusual circumstance facing our community”? If Mayor Whiting was at all accountable, in a factual context, he would be asked the following:
1) How can he say there weren’t winners and losers, when Abaco got to keep its privatized roadways, and citizen ratepayers remain totally beholden to this corporation for accessing their homes and the marshland? Ask the condo residents, whose properties will have lower market value, whether they think there were any losers. Certainly, those who made this into a referendum against tax hikes would consider themselves winners.
2) How can Mayor Whiting say, with a straight face, that this was about citizens being informed, when he and other Town officials have kept vital facts that bear upon this matter of public access from the very people who were voting?
3) Just what vested interests is he referring to here? For sure the “no” campaign upheld the interest of Abaco when it successfully changed the focus from the public interest (“rights of access”) to the “no tax increase” lobby in Town. (We fully recognize how MNP’s steadily increasing audit charges, ending up over $80,000, played into this reframing.)
4) Is Mayor Whiting actually claiming that the 400 residents who, for a variety of reasons, voted “no”, reflect a “majority opinion”? Wouldn’t it be more accurate to say that this was a majority of those who voted, which was actually not a majority in any sense of the word? There is simply no way of saying from this referendum what a majority opinion would be about the right of public access.
5) And just what does Mayor Whiting mean when he says that the Council can now move forward respecting the direction provided? This was simply a “no” vote, on creating legal access for condo residents. What about the direction provided by the larger group of 619 fair-minded residents who signed the petition calling for reinstating legal public access? No one is disputing that in the short term it worked politically for Town officials to ignore the petition, call a referendum, and limit the information provided to the voter. Town officials clearly helped to reframe the issue into one of taxes. (Some might call this a conservative populist campaign). But does this really provide direction for what Town Council should do about the outstanding issues, including what will happen with this land, how to protect the lakes, etc.? Or, about, something that won’t seem to go away: whether there was a cover-up on the handling of conflict of interest, etc.? (See D below). What we are finding in the FOI files shows that, if anything, the importance of issues about democracy, transparency and accountability is growing.
6) Certainly, Mayor Whiting is right about one thing, that not everyone will welcome the outcome of the referendum. Anyone who truly cares about where this community is heading, and about really protecting the watershed and lakes and public access to them, will not be very happy, especially as they continue to learn more about the back story which has been kept from the public.
Mayor Whiting’s document reveals the political mindset that went along with resorting to the referendum tactic. His entries help to clarify what he knew, compared to what he has publicly said. We still need to find out what happened between 2011 and 2013, when the Town ended up giving Abaco Block Q, which for three years it refused to sell to other interested parties. This is what laid the groundwork for the heated controversy about the rights of public access in our community. The most obvious thing that happened in this period was the 2012 election, where Abaco director Brian Janz became a member of the Town Council. We will pick this matter up in Posting # 3, on Conflict of Interest.
There is more, revealing information in Mayor Whiting’s document. Please read on.There has been an ongoing controversy as to whether the Town side-stepped regulations regarding Fair Market Value (FMV) in its land deals with Abaco. We saw in Posting # 1, from the FOI files on the audit from Jan. 25, 2018, that when MNP went to a Crown Appraiser, the Appraiser was “surprised of the sale of $1 for each of the two properties”; i.e. that Block V and Q, and later Block Y, were each sold to Abaco for only a $1.00. MNP also stated that, according to the province, land that was sold below market value should be publicized, which did not happen with these land deals. This requirement is right in The Municipalities Act. In private communications with Town officials on Jan. 25, 2018, MNP also said that it would have to talk to councillors about “how values were calculated for sale of properties.” But there is no indication that they did any serious follow up to this. Why not?
Does Mayor Whiting’s document add any background to this controversy over FMV?
His entry for Sept. 19, 2008, when Pellaway’s Letter of Intent about a marina was submitted, states that the Town will “…contribute Parcel Y & Q and V & leasing Marina & Conference Centre back to Pellaway for management...” From this we now know that the three parcels of land that Abaco ended up getting for $2.00 in total (V, Q and Y) were all discussed in prior negotiations with Pellaway. FOI information from federal records about the transfer of PFRA land to the province will likely add insights to this. But we already know that, even at this early date, there is no attention being paid to the fact that all of Y and most of Q are in the floodway and therefore should not be commercially developed. We will pick up on this matter later in this Posting.
Mayor Whiting’s Oct. 22, 2008 entry mentions the public meeting held at the local Legion about the Pellaway Bay proposal. There is nothing about what happened, but we already know, from other Town records, that the Town ended up outrightly rejecting selling Q to Pellaway (see section above).
There are other entries through this period (e.g. May 13th and 28th, 2008) that show other discussions about selling the old Indian Hospital land. Another one for April 15, 2010 is of particular interest because it was an offer to the Town to buy V for $1.00, which is what finally happened with Abaco, with Q thrown in. It is important to know what happened with this offer: was there, as Whiting mentions, as unconfirmed, an “offer of $75,000 for the property in return for demolition of the buildings”? If so this would be a much better deal than was later struck with Abaco. So, did Abaco end up getting any insider, preferential treatment?
DEMOLITION-DISPOSAL COST ESTIMATES:
The public justification for selling V to Abaco (with Q thrown in) for $1.00 has always been because Abaco had to bear all costs of demolition and disposal of the rubble from the old Indian Hospital. Two entries from Mayor Whiting refer to estimates that the Town got for demolishing and disposing of the old Indian Hospital. The one for June 24, 2010 indicates that North West Express of Regina gave a “Quote on proposal…Hospital demolition $236,706.” It also says “Power house & stack $19,850”, which is actually incorrect. If we go to the original document it shows that the $236,706 included “tear down old hospital and power plant, crushing of materials (concrete/bricks) and material removal costs.” The crushing costs were $37,872.98 and the removal costs were $56,809.46 of the total estimate of $236,706.10. The original document shows that the $19,850.40 figure was on top of the $236,706.10 and was for “Burn Stack Removal (Behind Power Plant)”.
Mayor Whiting’s Aug. 18, 2010 entry indicates that R.J. Tulik and Son also gave a quote “to demolish the Old Hospital, and Powerhouse and Incinerator…demolish and haul away to either old lagoon site or old nuisance ground by Treaty 4…$374,000.” The Tulik estimate, unlike that of North West, however, included “demolishing the Incinerator”. If you add the $19,850.46 that North West estimated for doing this work, this brings its comparable figure to $236,706.10 plus $19,850.46 or $256,556.56. The Tulik estimate therefore was about $117,443.44 higher than the North West Express estimate.
They weren’t completely comparable, as the Tulik estimate included “excavate pit for debris at old nuisance ground site…” , which Tulik gave as one option for disposing the demolition rubble. This land ended up in Tulik’s hands after March 2013. In addition, Tulik’s proposal, unlike that of North West Express, did not include crushing of materials after demolition, which clearly was the best environmental option, as it could involve recycling of materials.
What is laid out in the full documents shows that Mayor Whiting’s sparse entries are confusing and can be misleading. For one thing, Mayor Whiting includes North West Express’s reference to “Lagoon site $142,400”, which he adds to the $236, 706, along with $19,850 for removing the burn stack, to get a grand total of “$398,956”. But this is not at all comparable with the figure of $374,000 from Tulik. North West’s quote to demolish, crush and dispose of the old hospital rubble was $256,556.56 TOTAL not $398,956.00 as stated by Mayor Whiting.
The $142,400 refers to a matter separate from demolition and disposal of the old Indian Hospital, i.e. for the costs to “Reclaim the Lagoon Site”; i.e. filling in the 4 acres area where the old lagoons were. This can be confusing as in Tulik’s proposal, one option for disposal of the old Indian Hospital rubble was at the old lagoon site. The North West proposal was “for hauling rubble to the landfill site” though it did include “hauling crushed material” to what it referred to as “the lagoon reclamation site” . But the actual reclamation would involve additional work and additional costs, for stripping topsoil, removing clay and placement and packing of crushed material. But this isn’t the whole story, for Apex’s Apr. 2, 2014 letter to the Town, proposes that in exchange for using the demolition rubble in the old lagoon, and also filling in the larger area beyond the old lagoon for industrial lots, it receive 3 acres of the industrial lots in Parcel F; in its words it would “exchange the rubble for the 3 acres” . The costs for disposal of the old Indian Hospital rubble at the old lagoon site would therefore involve an additional cost, not shown in the Aug. 18, 2010 estimate, i.e. the fair market value of 3 acres of industrial-zoned land.
Apex also gave a separate estimate for filling in the much larger area in Parcel F, dumping beyond the old lagoon to create industrial lots. Its Apr. 2, 2014 letter to the Town says “If the town did not want to exchange the ruble (sic) for the 3 acres…I could fill Parcel F with all clay at a cost of $7.00 per yard which would include supply of clay, load, haul, dump, level and compact. Parcel F comprises of 18 acres at min. 4 feet to build up would equate to a cost of…122,419 yards times $7 = $856.933.” This substantial figure may or may not have been intended to encourage the Town to take the side-deal exchanging 3 acres for the rubble and work. But, any way you cut it, this work included some work (disposing of demolition rubble) that under the original demolition estimate and final land deal was to be borne by Abaco.
Whiting did not include any of this vital information from the Apr. 2, 2014 document, even though it was definitely in the Town records. Nor was this important document provided to us by Whiting on Oct. 24, 2017 to comply with our Access to Information request to the Town. It is very noteworthy, regarding the matter of conflict of interest, that Abaco director Brian Janz attended this Apr. 2, 2014 meeting and that after this the Town CAO informed Cal Tulik that “At a special meeting held April 2, 2014, the majority of the…Council approved for you to commence hauling rubble from the old Indian Hospital site to parcel F.” There was a clear breakdown of governance accountability here, as the approval did not actually come until the April 10, 2014 Council meeting. It is noteworthy that the Town still does not post any Minutes for this April 2, 2014 meeting. We have them.
The MNP audit report also got the demolition figures wrong. They used a demolition cost estimate of $379,106 for North West Express (see p. 22 and 23) which mistakenly combines the demolition and disposal costs with estimates for reclaiming of the old lagoon. Meanwhile the Town itself, when negotiating a price for the old Indian Hospital land with Pellaway Bay Resorts, used the much lower and accurate North West figure of $256,556 for the demolition and disposal. (See Oct. 18, 2010 below). So, why are all these inflated figures being used for demolition and disposal costs, other than to artificially lower the estimate of the FMV of the land that Abaco got for $1.00?
There are other entries in Mayor Whiting’s document that further inform us about FMV. His Oct. 13, 2010 entry confirms that according to Crown Appraisals the market value for V was “$99,000” and that this “includes the estimated cost of removal of the existing structures” . However, Whiting does not mention that they took the highest estimate, of $374,000, from Tulik, in making their calculation. If the lower one of $256,556 from North West Express had been used, then the appraised market value of V would be closer to $220,000.
Mayor Whiting’s entry for five days later, on Oct. 18, 2010, confirms that the Town believed that Parcel V had high market value. This entry says the “Town offers parcel ‘V’ to Pellaway Bay Resorts for $302,000, as is”, which means that Pellaway would have to pay $302,000 and still carry all the demolition costs. But, there is no mention by Whiting that the document brought to that meeting, called “Pellaway Bay Proposal”, stated that the total costs for demolition and disposal, which they take from North West Express, would be “$256,556.10”. Whiting also fails to mention that the Town document says “The total cost for the demo is $161,873.66 plus the crushing and removal at $94,687.44…”, which is clearly a lot below the Tulik estimate.
This is also when the Town tells Pellaway that “Parcel V is the only available land” and Q is not for sale, which Mayor Whiting also does not mention in his entry. If Q was included in the fair market value assessment, the figure would be much higher. The fair market value of Q is totally ignored when the case is made that it was fair to sell this land (both V and Q) to Abaco for $1.00 because it was incurring the costs for demolishing and disposing of rubble from the old Indian Hospital on Parcel V.
The Feb. 10, 2011 entry gives us further information of how this land, that ultimately went to Abaco (with Q) for $1.00, was valued by the Town around that time. That entry from Town records says “perhaps serious consideration should be given to second option of demolishing the old hospital…would result in approx.. 54 lots that could be sold for approx. $45,000 each ($2,430,000) which could pay for the site clean up & infrastructure upgrades…”
Mayor Whiting’s entry for April 28, 2011 refers to “Pellaway counter offer for purchase of Parcel V of $200,000…” Q is no longer in the picture. The entry says that this assumes “demolition costs of $256,000 & contribute $84,000 towards infrastructure…” So, at this point in the negotiations, Parcel V alone, without Q included, taking the estimated demolition costs into account, is considered to have a market value of at least $450,000.
Mayor Whiting’s May 12, 2011 entry says that “Town rejects Apr 28, 2011 proposal by Pellaway…” We don’t know the full back story to this, as this whole period of land dealing was cloaked in secrecy, but it seems that there was not a consensus on Town Council about the financial obligations that the Town could incur under this joint development proposal.
Whiting’s June 26, 2013 entry redacts (blackens out) the names of four people who “had visited Fort Qu’Appelle seven times since April and had visited the old hospital site and liked it very much”. It is important to know more about what happened here. What was this party told about the cost of Parcel V, as is? Was the party offered this land for $1 plus carrying the costs for demolition and disposal? Was Q thrown in for the same price? And, if not, why not?
There is then an Aug. 22, 2013, entry about the Town saying “it will work with the company (Apex) should the proposed demolition project proceed”. Whiting then has an entry for “2013” which says “ABACO (Brian Janz) had informal meeting with Town”. This is where the controversy begins, and it is notable that in Whiting’s entry, Brian Janz, who is a Town Councillor at the time, is clearly acting on behalf of Abaco. We will pick up on this below and in Posting # 3, on Conflict of Interest.
Whiting’s entry for April 10, 2014 is about the Town accepting an Apex proposal “to haul rubble into the old lagoon site (SW portion of Parcel F)…In return the Town will transfer 3 acres of said parcel to said company…” Mayor Whiting clearly knows that the side-deal is directly related to his Old Hospital Time Line because it involves disposing of rubble from the old Indian Hospital. Whiting, however, does not explain that this side-deal with Apex, which did the demolition work for Abaco, would have a direct bearing on reducing Abaco’s actual costs of demolition and disposal. It would not only cut travel costs but the costs of taking the rubble to a regulated dump with dumping fees.
This is something that even the MNP final report acknowledged; on page 24 MNP says “the market value of the property would increase or decrease in accordance with the actual disposal costs.” This side-deal is therefore highly relevant to the validity and credibility of the public justification that the $1 price (for V with Q thrown in) was fair because of the demolition costs. Whether it was “fair”, of course, depends on what the actual (still hidden) costs actually turned out to be. But there is no doubt that the side-deal that the Town made with Apex would not only reduce the disposal costs of Abaco, but add costs (the market value of the 3 acres) to the Town.
In this regard, it is noteworthy that MNP could not get Apex owner Cal Tulik to do an interview, and therefore never got the actual costs of demolition and disposal as part of its fact finding. There, therefore, were no empirical facts available about this vital information when the audit considered the issue of FMV. However, MNP’s audit report ends up ignoring this and using highly inflated demolition and disposal costs (of $390,000, see p. 24) to make its absurd argument that Parcel V only had a market value of $2,000. If Abaco ever sells all the land it got from the Town for $2.00, plus the unknown costs of demolition and disposal, we will actually see what the market value of this land is. We cannot substantiate rumours that offers of $750,000 have been turned down by Abaco.
Mayor Whiting simply side steps this important issue. The land, however, continued to have high assessed value. Mayor Whiting’s Jan. 11, 2015 entry includes the Tax Notice for Parcel V and Q which states “V assessed value $479,500 ($8,618.03) and Q $167,100 ($3,235.25).” It is noteworthy that councillor Jeff Brown, who moved all the motions to make these land deals with Abaco, also called for the Town to give Abaco a tax abatement in 2016. (See Aug. 19, 2016 Fort Times).
It is clear from Mayor Whiting’s entries that up until Abaco got involved in land negotiations with the Town in 2013, that Parcel V was seen to have high market value, even accounting for the purchaser carrying all costs of demolition and disposal. When the Town was dealing with Pellaway, the asking price for V alone was $302,000, with Pellaway carrying all demolition and disposal costs. The shift of the price to only $1 within a few years (with Q now thrown in) therefore remains highly problematic, and even suspicious.
The fact that no actual figures for demolition and disposal costs have ever been produced, taking the effect of the Apr. 10, 2014 side-deal between Apex and the Town into account, leaves a cloud hanging over the Town. The added fact that the Town CAO told Apex it could proceed with the side-deal on April 2, 2014, when no Council motion had yet been passed, and that Abaco director Brian Janz was at this April 2, 2014 meeting, makes this a very big cloud, indeed.
From his Jan. 2, 2018 document we know that Mayor Whiting was aware of vital facts regarding the controversy over the fair market value of the old Indian Hospital land. To our knowledge, however, he has never acknowledged this fundamental problem in a public setting. When this information was raised at our public forum held at the Legion on June 21, 2018, prior to the Town’s referendum, Whiting did not acknowledge that he knew the price that the Town asked Pellaway for the old Indian Hospital land, prior to its dealings with Abaco, with Pellaway carrying all demolition costs, was $302,000. Most interesting, the records about the Town’s asking price of $302,000 to Pellaway Bay Resorts were not included in the Access to Information files that we received from Mayor Whiting on Oct. 24, 2017.
The process of getting to the whole truth and nothing but the truth (like Whiting’s “well-informed approach”) can be arduous, but this is necessary for the voting taxpayers to be able to hold elected officials accountable and to have the depth of information required for informed consent.
Mayor Whiting’s document on Town land deals with Abaco acknowledged the conflict of interest issue. However, his selections, which pre-judge the matter, are more telling than his care in assembling all relevant facts. We will assemble all the known facts that pertain to conflict of interest, including those brought out by the audit and missing or obscured in Mayor Whiting’s document, in Posting # 3.
As already stated, Mayor Whiting’s entry for “2013” acknowledges the conflict of interest issue by stating, and we quote, “Abaco (Brian Janz) had informal meeting with Town.” The Fort Times had previously reported the same thing. In its Oct. 28, 2016 story “Abaco marina an issue at forum”, it reported that Osika had stated “Councillor Brian Janz suggested a meeting between the town and the company.” The article also stated “In 2013, Janz and Abaco representatives had an informal discussion with the town.”
There is no room for interpretation here; Brian Janz, who was a Town councillor at the time, was acting on behalf of Abaco. This contravenes Section 144(1)(a) of The Municipalities Act, which states that “if a member of council has a pecuniary interest… the member shall declare the pecuniary interest before any discussions of the matter.” Below, we will outline the relevant dates, which clearly show that Janz did not abide by this or some other legislative stipulations.
Mayor Whiting can’t pin down a date for this or any other meeting where Janz was acting for Abaco while a councillor. This itself shows that the relationship between Abaco and the Town established by Janz was “informal” and undocumented, which should already be a red light. In view of what we now know, and what MNP itself acknowledged (see Posting # 1), not only should Janz have declared his pecuniary (conflict of) interest from the start, but then never acted on behalf of Abaco in any regard. We will see below, however, that even though Whiting’s 2013 entry clearly signals a conflict of interest, Whiting tries to downplay this.
Mayor Whiting has another 2013? (sic) entry about “Undated letter from Darrel Webster (CAO) to Abaco Group indicating council is interested your proposal…do wish to bring to your attention some of Council expectations with regards to the project”. Webster mentions some of the conditions required for a demolition permit and the need for a servicing agreement. According to Whiting’s entry, Webster’s letter ends “…any further information that you have about the project would be appreciated.”
Was CAO Webster perhaps trying to assert some administrative control here, over what may have become a highly politicized process of negotiation, with Councillor Janz being an Abaco director. Webster was later terminated at a crucial point which, perhaps coincidentally, was at the same meeting where the council was deciding “in camera” whether or not to take action on Janz’s failure to declare his conflict of interest. (See Dec. 21, 2013).
Mayor Whiting’s entry for Sept. 9, 2013, is a “Letter from Abaco Group…Re: Proposal to Purchase ‘Indian Hospital’…Lots V and Q…” Is this the same Proposal that the March 25, 2018 MNP report says “we were unable to obtain…Sept. 9, 2013 proposal letter from Abaco Group to purchase lots V and Q”? Mayor Whiting must have had a copy, for he includes details, such as “The proposed hotel would have 80 + units…” It is also interesting that this entry says “…the design of the marina will have to be determined as some of the land required is owned by the Crown and Abaco will have to work with them on the appropriate design…” From this we now know that back in 2013, Abaco is already trying to arrange to get ownership of the floodway land that the federal government is planning to transfer to the province (Lot Z and W). Later in this Posting we will look at Whiting’s entries that bear on this.
It should be noted that this information about conflict of interest from Town files in 2013 was not given to the QVEA by Mayor Whiting after our Access-to-Information request. In response to our Aug. 17, 2017 letter requesting any information on Brian Janz’s involvement in “any preliminary discussions or arrangements that led to the selling of Town land to Abaco” (Question # 29), Whiting stated, in writing, on Oct. 24, 2017, “There are no records of which we are aware which would indicate this to have been the case.”
Yet we know from Whiting’s own Jan. 2, 2018 document that such information was available; otherwise how could Whiting’s 2013 entry state that “Abaco (Brian Janz) had informal meeting with Town”? Also, we now know that Brian Janz for sure attended the April 2, 2014 meeting that discussed the side-deal with Apex, which would have a direct bearing on reducing Abaco’s costs for demolishing the old Indian Hospital. As such, as an Abaco director, Janz would directly benefit. We have to again ask: why was this information not included in Whiting’s document? And why was it withheld from us when we made our Access to Information request in Aug. 2017?
Mayor Whiting’s entry for Sept. 30, 2013 says that the Council “accept the offer of Abaco Service Group of $1.00 for Block Q and V…” Notice here that Whiting says “Abaco Service Group”, which combines Abaco Group and Abaco Energy Services, which is an understandable mistake, as they include the same business associates. This suggests that Whiting, like the MNP audit, may not have seen the distinction as being significant in regards to the conflict of interest issue. They would be right about this.
Mayor Whiting’s entry for Oct. 3, 2013 refers to a “Letter from the Town of FQ” to someone in (name is redacted) “…Abaco Group…advising the TOF at a special meeting held Sept. 30, 2013 passed…” the motion to accept Abaco’s offer. Whiting’s Oct. 11, 2013 entry refers to the press release about “Town and Abaco Group enter into tentative agreement for hotel/marina development.” There are then several entries about finalizing the purchasing agreement, including some material (Oct. 24, and Nov. 22, 2013) that is “severed”. During this period Janz is publicly acting on behalf of Abaco (See Oct. 28, 2018 Fort Times).
Mayor Whiting’s Dec. 17, 2013 entry is about Janz’s belated letter to council. It is noticeable that Whiting simply quotes Janz from his letter, as though it is self-evident that he had advised “council of his pecuniary interest prior to the Special Meeting of Sept. 30, 2013…” There are several known facts that need to be carefully considered as background to this. For one thing, this date is factually wrong, for Janz’s declaration of pecuniary interest was not prior to the Sept. 30, 2013 council meeting, as his letter says, and Whiting apparently takes for granted. It was three months later, just prior to the Dec. 21, 2013 council meeting.
All Janz did before the Sept. 30, 2013 meeting, which passed the resolution to sell Parcel V and Q to Abaco, was absent himself, as the Minutes clearly state. This wouldn’t stand as any sort of divulging of an interest. It is clear in the Town’s Minutes that it is only during the Dec. 21, 2013 council meeting, after the council terminated Darrel Webster as CAO, for which Janz was present, that “Brian Janz declared a pecuniary interest and left the room at 9:08 as he is a director with zero shares in Abaco Energy Services Inc.” It is after this that the Town changed the wording of its motion to sell land to “Abaco Energy Services Inc, not Abaco Group”. Mayor Whiting would know all this as these Minutes were included in the package he sent to QVEA on Oct. 24, 2017. So why did Whiting not accurately report this in his document?
Rather than carefully addressing all the known facts, Whiting simply includes the position taken by Janz to defend himself from the charge of being in a conflict of interest. In his Dec. 17, 2013 letter, Janz stated that “…he did not disclose that he was a director of Abaco Energy Services as Abaco Group was the company purchasing the property.” Whiting makes no mention of the fact that in this same letter, which Janz wrote as a result of the lawyer’s Dec. 3, 2013 letter to council about conflict of interest, Janz actually claims that he “was incorrectly noted on the Minutes (of Sept. 30, 2013)…as absent, when in fact I had recused myself and was abstaining from discussing and/or voting as I had a pecuniary interest”. If this error had actually been made and not corrected by Janz at the next meeting, which there is no reason to believe, then Janz wouldn’t even need the excuse, that Whiting quotes, about the Abaco Group not being Abaco Energy. Also, if it was true that Janz had recused himself back on Sept. 30, 2013, then there would not have been any reason for the Town lawyer to write his Dec. 3, 2013 letter on conflict of interest. Janz simply can’t have it both ways. Nor can the Mayor.
Janz used this excuse from the start. In its Oct. 28, 2016 article the Fort Times states that Janz “told the Fort Times that when the deal was initially proposed that it was by Abaco Group, a company which he does not have business interests in – which is why he never declared a conflict.” Again, what he says here contradicts what he wrote on Dec. 17, 2013. And this was always a phony excuse, for Abaco Group is not a company, but the term used for a group of companies, which includes Abaco Energy Services; so, the semantics don’t absolve Janz for covering up his business association and conflict of interest. And Mayor Whiting would know this, as the Town’s lawyer stated this in his Dec. 18, 2013 letter to the Mayor and Council, where he wrote, “Abaco Group is not a corporation in its own right but rather refers to a group of associated corporations, eight of which are American corporations…one of which is the Canadian corporation, Abaco Energy Services Ltd.” So why didn’t Mayor Whiting include this vital information in his document which, presumably, he prepared for the audit?
In dealing fully with the conflict of interest issue it is therefore vital to remember that Janz’s declaration of a pecuniary interest in Abaco came three months after the Town agreed to sell this land to Abaco, whichever name it used. Janz clearly had a pecuniary interest in this Group, as it includes Abaco Energy, of which he was and remains a director. Furthermore, The Municipalities Act (see Section 143(1)(b) is quite clear that a pecuniary interest includes “a closely connected person” who can benefit from a decision, and this would definitely include those in the Abaco Group. It is also noteworthy that Janz’s Public Disclosure Statement of his business interests didn’t actually come until March 9, 2016, long after all sales to Abaco, including of Parcel Y, were made.
Mayor Whiting notably omits this information from his document. He, however, does have one entry for Dec. 18, 2013, which simply states “Various correspondence and emails regarding Abaco Energy Services and Pecuniary Interests of members of Council”. But Whiting does not give any details about these. He does not specifically mention the letter from the Town lawyer, dated Dec. 18, 2013, which gives the council the option of asking for Janz to resign. Nor was there any entry in his document for the lawyer’s Dec. 3, 2013 letter to council, which is referred to in the lawyer’s Dec. 18, 2013 letter.
This important Dec. 3, 2013 letter, which Whiting excludes from his document, lays out in detail what constitutes a conflict of interest. It even suggests that “given the sensitivities of the matter the remaining members of council may wish to have these discussions in camera” to decide “whether Mr. Janz had a pecuniary interest in respect of the ABACO resolution and, if so, whether he breached the requirements of section 144 of the Act in relation to the same”. But this and all the other information, other than Janz’s own letter, with his contrived excuse, is excluded from Whiting’s document. It certainly looks like Mayor Whiting was trying to cover over some of the most pertinent factual information about this matter.
Again, we note that the information that he did not include in his document from Town records was also kept from the QVEA, when its Access to Information request was addressed on Oct. 24, 2017. Again, we ask: to what end?
In his Dec. 21, 2013 entry Mayor Whiting states that at this Council meeting the Council “change motion 183/13 to read Abaco Energy Services Inc. not Abaco Group.” This is the same meeting that, prior to this motion being carried, Darrel Webster was terminated as the Town’s CAO. In Posting # 3 we will assemble all the factual background to this motion that has come to light. This will include several documents, including the Dec. 3rd, and Dec. 18th, 2013 letters from the Town’s lawyer, that Whiting notably omitted from his document. We will also look at the obviously sloppy and contradictory handling of all the facts assembled about conflict of interest in the MNP audit.
There are some other entries pertaining to the Town’s sale of V and Q to Abaco that are noteworthy. Whiting’s Sept. 30, 2013 entry noted that “All demolition must be completed within one year of the sale of the property.” His entry for Jan. 16, 2014 reiterated this and specified that Abaco must “complete the required demolition, waste disposal and rough grade/landscape work by January 30, 2015.” Mayor Whiting’s entry also included the statement that should Abaco fail to do this “Abaco shall forthwith transfer title to the Property back to the Town.”
We know that Abaco did not meet this requirement, as the demolition and other work was still being completed more than two years after the Jan. 30, 2015 deadline. However, though Mayor Whiting considers it relevant to include reference to these conditions of the sale, he does not refer to Abaco’s breach of the agreement. Why not? The new council, with Whiting as mayor, clearly had the option of initiating action to enforce this stipulation, which could have started to get the Town out from under this expensive mess. We don’t know whether Town officials ever discussed this option, and if they did, this information has clearly been kept out of the public light.
Mayor Whiting has been quiet and sometimes evasive every time we have raised the matter of the Town giving land (part of Q and all of Y) to Abaco that should have been protected as floodway and marshland. His Jan. 2, 2018 document, however, shows that he was quite aware of the issue and what had gone on behind-the-scenes.
Whiting’s entry for Aug. 22, 2007, reveals that this matter of floodway land was even raised for the old Indian Hospital land (V). It states that under the Planning and Development Act 2007, the rezoning by the Town has to have a “caveat that as area is subject to periodic flooding all permanent buildings and structures are to be flood proofed up to an elevation of 481.60 metres…”
Mayor Whiting’s Sept. 2, 2010 entry is about the Sask Watershed Authority’s response to Town inquiries about decommissioning the old lagoon. The entry states that the provincial approval “does not address any potential environmental issues.” And, in retrospect, some serious environmental issues were ignored. This is when the QVEA became an environmental whistle blower. And on March 21, 2018 the Town was issued an Environmental Protection Order (EPO) to clean up contaminated soil (asphalt, etc.) that, since the demolition of the old Indian Hospital, it had allowed to be dumped by the old lagoon, to create industrial lots. We now have, from FOI files, correspondence that shows that the Town was not complying with the wishes of the Ministry of Environment. MNP’s audit report erred factually on this matter when it stated that the Town had followed all Environmental regulations having to do with these land deals. It did not!
Mayor Whiting does not include any of this information on Town non-compliance from Town files in his document. (There were made available by us to MNP and are dated Jan. 19, 2015, June 23, 2016 and March 21, 2018). Both the Town and MNP appear to have tried to cover up this matter from the public.
We noted above that Whiting’s Sept 9, 2013 entry included the statement from Abaco that “the design of the marina will have to be determined as some of the land required is owned by the Crown…” Whiting however does not mention that on Oct. 18, 2010, in the Town’s “Pellaway Bay Proposal”, it stated that “The Town is prepared to participate in the acquisition of Parcel W and J (Z) when AgCan makes their decision to render it surplus.” All this land, which the province withdrew from the market on Nov. 20, 2017, turned out to be mostly floodway. Whiting has never acknowledged the importance of environmental protection of the floodway and marshland, though he told us that he worked on the Trans Canada Trail, which is built on floodway marshland, on Parcel Y, which was given to Abaco in 2015.
Mayor Whiting’s entries, however, indicate that he is quite aware of the behind-the-scenes timeline to get the Crown, floodway land into the hands of Abaco. His Apr. 30, 2014 entry states “Parcel Z transferred to WSA from Crown.” His entry for July 10, 2014 is about “letter from WSA to Mayor Osika”, but all information is then severed. His Oct. 2, 2014 entry refers to an “Abaco-WSA meeting”, but all information is again severed. There is also an entry for Nov. 19, 2014 which just says “meeting”. Again, all information is severed. We have to ask why there was so much secrecy around these behind-the- scenes land dealings with Abaco? We asked local MLA, Don McMorris, about this just prior to the 2016 provincial election, but never got a straight answer. We will document what happened more thoroughly when we analyze the FOI files from the province.
Mayor Whiting is definitely aware of all the Town lobbying of federal and provincial governments to get this floodway Crown land into the hands of Abaco. His Nov. 20, 2014 entry is about a letter from Osika to local MP and now Conservative leader Andrew Scheer “re inquiries with Agri-Food Canada on Town’s behalf regarding the timelines on land transfer to WSA.” Even before the federal PFRA land has been transferred by the Harper government, or any notice of this has been issued, the Town is trying to ensure that the land goes to Abaco. We have even seen a map from Agri-Food that already had a diagram of a marina on this Crown land.
Whiting’s Feb. 10, 2015 entry refers to a letter from Osika to the WSA to “allow right of access or lease to developers for project.” Whiting’s Feb. 11, 2015 entry is about Osika writing Aboriginal Affairs about the “possibility of the province retaining the rights to retain the property…(yet allow right of access for project).” For Feb. 18, 2015 Whiting refers to an email, but all information is severed. Whiting has a Feb. 20, 2015 entry about “Mayor Osika requests a meeting with Minister Scott Moe resp (sic) for Environment, Water Security & Sask Water.” There is another entry for the same day saying “Mayor Osika requests a meeting with Minister Docherty (Sask Parks?).” Was the Town trying to get the marina approved as part of a provincial park?
There’s a March 3, 2015 entry about another letter, but all information is severed. Whiting’s March 6, 2015 entry says “Minister unable to meet with Mayor”. The entry for Apr. 4, 2015 states “Abaco makes an offer to purchase to WSA”. And the entry for Apr. 10, 2015 refers to an email but all information is severed. Another entry for that same day refers to a “Tele conference”, but all information is also severed. Whiting’s entry for Apr. 17, 2015, about a typed note, also has all information severed.
Whiting then has an undated entry about “Abaco Energy Services Offer to Purchase Parcel Y from TOF (Town of Fort Qu’Appelle)” (We have this letter and it is dated Mar. 5, 2015.) His entry continues, (for) “$1.00…Rezoning for marina+…TOF to assist in obtaining local, prov & Federal permits as necessary for marinas.” We now know, from other sources, that Abaco wanted Parcel Y to ensure it had an alternative access to the lake. And something else that Mayor Whiting fails to mention in his document, and which the MNP totally ignored in the audit, is that Town officials have never found the Minutes of the meeting which agreed to sell this land, Parcel Y, to Abaco. Hmmmm!
At that time, negotiations between Abaco and the WSA over purchasing the Crown land (Z and W) were facing difficulties, partly due to Pasqua First Nation (PFN) going to court over a failure to follow the Duty to Consult. This undated (Mar. 5, 2015) entry is quite telling as it indicates that the Town was directly involved in the attempt to end-run zoning, environmental protection and First Nations rights, to get commercial development in this floodway and marshland.
Whiting’s entry for May 14, 2015 is about an email from Osika to a redacted name “with copy of note he sent to Sask Water seeking update on status of land transfer…” Then there is an entry for May 14, 2015 regarding another email, but all information is severed. Whiting’s entry for May 25, 2015 refers to a “WSA counter offer” but the information about this is all severed. Whiting has an entry for May 31, 2015 about “Letter from Mayor Osika to VP Water Security Agency.” It continues, “…imploring to ensure the team’s efforts remain focused on urgency for meeting timelines…(delays could put development at risk).” After that there is an entry for June 30, 2015 about a letter, but all information is severed. Later there is an entry for July 28, 2015, regarding a letter from Mayor Osika to a lawyer, whose name is redacted, asking for “options available given Treaty Land Entitlement action by Pasqua FN”.
Mayor Whiting’s entry for Aug. 28, 2015 states “Block Y sold to Abaco”, but, as noted above there is no mention that the Town has never produced the Minutes that document this sale. After this the entry says “…(that property went from PFRA to Sask Water to Town?) for $1”. The entry also refers to the agreement that “Town to enact a new zoning bylaw and the zoning of the property as CS2 Passive Community Service by Jan. 1, 2016.” Whiting clearly knew that Town officials were working directly with Abaco to make this floodway land available for the marina. Also, we need to find out if it is true that the Town got Y from the province, without the province ensuring that this floodway would be protected? The MNP audit ignored vital facts and mishandled this whole matter.
The entry for Sept. 14, 2015 is about Pasqua First Nation registering “Treaty Land Entitlement interests on the two parcels”. It continues that “title can not (sic) be transferred until those interests are removed…” This entry refers to a Mar. 3, 2016 “letter from Minister for WSA”; this suggests that, at this point, the province is still willing to sell this Crown land (Z and W) to Abaco, after they deal with Pasqua First Nation. We know, however, from FOI files from the WSA, that this land was later withdrawn from the market, on Nov. 17, 2017, primarily due to environmental and floodway regulations. The Town has never respected these environmental concerns during this whole land ordeal.
It is interesting that the Town has a CLEM (Calling Lakes Eco-Museum) poster about “Saving the Water” on its from door. It is doubly interesting that CLEM has never said a public word about the Town’s disregard for the lakeside marshland.
Whiting’s Jan. 4, 2016 entry is about the “land transfer of Parcel Y to Abaco”. At this point the Town and Abaco apparently think that they will be able to go ahead and use this floodway marshland for the marina. But since then, with all the public attention, and accumulating revelations, the planning seems to have petered away. Though Town officials continue to defend Abaco’s interests, the marina project may be dead in the water. In this regard, we will have achieved our overriding environmental objective.
There was obviously a scurry of activity over this period, in early 2015, to get this provincial, floodway Crown land transferred to Abaco for its proposed marina. When this ran into regulatory and political troubles, Abaco was given Lot Y as a back-up plan. There is still a lot of missing information, including council Minutes for when the Town gave Abaco Parcel Y for $1, which would tell us much more about the deal making. We will do a future Posting based on all FOI files, including those from the WSA, about these matters.
From these entries in his Jan. 2, 2018 document we are now much more “well-informed” about what Mayor Whiting knew about the land deals with Abaco. Mayor Whiting clearly knew far more than he has ever let on when these matters were being publicly discussed. His document was likely not produced for public eyes; but it tells us that Mayor Whiting knew much more than he has publicly divulged. It is also now clear that under his leadership the Town has withheld some of the most pertinent information, even though this information is supposed to be available under the province’s Freedom of Information legislation.
Mayor Whiting and other councillors should be held accountable for their actions as elected officials. We realize that the whole truth and nothing but the truth is not always the primary concern in local politics. But when a community faces such contentious and potentially divisive issues, it is vital for elected officials to respect and facilitate full transparency so that everyone can get to the bottom of the issues.
This has not occurred in Fort Qu’Appelle, but the truth will continue to leak out. After more than two years of dealing with the new Town Mayor and Council, which were elected to clean up this mess, we have had to conclude that their commitment to truth-telling, to date, has been no better than we saw with the previous, highly secretive council.
We are committed to watershed protection as a public interest, and will carry on. If there is a need to correct any statements in this report as more information comes to light, we will be more than pleased to do so. We realize that the pursuit of the truth and nothing but the whole truth involves a process of bringing more information into the public realm. This is posted to help move this process forward. Much still has to change and much more has to become publicly known if we are going to get honest, above-board governance that is committed to protect and restore the Qu’Appelle Watershed.
On April 26, 2018 MNP’s lead audit-investigator Mike McCormack presented his findings at a well-attended public meeting at the Fort Qu’Appelle Legion Hall. One of the findings, he said, was that there was “No” conflict of interest in the Town’s land deals with Abaco. However, when pressed on this matter by the Fort Times reporter, he said “maybe” there was. The audit immediately lost much credibility. If there maybe was a conflict of interest, then why didn’t MNP thoroughly investigate this matter and refer it to the Minister of Justice?
It is evident from what is in, and what is not in, MNP’s audit report that it did not do a minimally acceptable, let alone thorough, job investigating conflict of interest. Based on what MNP did find out, which we will outline in detail below, there was more than sufficient evidence to warrant a more thorough investigation, or, at least for MNP to refer this matter to those who would ensure this. Since they did not refer this matter to the Province, we will do this in the public interest.
Brian Janz was on the Fort Qu’Appelle Council since 2012, during the time when these land sale agreements with Abaco were made. He also was a director of Abaco Energy Services (AES) since 2008. The chronology of events, which we will later lay out in detail, is more than sufficient to warrant a fuller investigation. Janz was involved on behalf of his Abaco business associates long before he declared any pecuniary interest. The Town’s own lawyer had to raise the issue on December 3, 2013, after the Town had already sold land to Abaco. A careful analysis of the excuses that Janz gave for not declaring his business or pecuniary interest earlier, provide evidence that he knew that he had a conflict of interest.
The fact that the Fort Qu’Appelle Council at the time did not address this matter head on, and that the present mayor and council have preferred to stick-handle local politics around the issue, does not alter the factual evidence that warrants a thorough analysis of conflict of interest. Nor do the failings of local government justify MNP not doing its due diligence when it was contracted to do a forensic audit of Town land deals since 2007. There are many errors of fact (both omission and commission) within the MNP report, which we will document, that indicate that further investigation and oversight is now required in the greater public interest.
The manner in which the MNP report handled the conflict of interest issue shows that it did not do a thorough, fact-based analysis. The Terms of Reference explicitly indicate that it was to investigate conflict of interest. The October 2017 petition signed by 743 ratepayers stated that the audit should investigate whether the land transactions “including but not limited to transactions with Abaco Energy Services Ltd. were completed in compliance with applicable laws and process, including but not limited to…procedures relating to conflicts of interest of councilors…” (p. 2). The MNP report states that under Section 140.1 of the Municipalities Act, a financial audit is to identify fraud, theft, unauthorized transactions or “Any non-compliance with this Act, any other Act or any bylaw of the municipality” (p. 2). The Introduction to their report highlights this matter, saying they are to do an independent review “to address allegations relating to lands not being sold at fair market value and allegations of conflicts of interest”. Under the Scope of Engagement, the report says that MNP will “determine if the land transactions were completed in compliance with applicable laws and process, including…conflicts of interest of councillors” (p. 3).
The MNP report also makes a commitment to “Independence and Objectivity”, stating it will use “an investigative mindset in the identification, pursuit, analysis and evaluation of information… contemplating that such information may be biased, false, unreliable and/or incomplete” (p. 3). Below we will show, in detail, that MNP failed to adequately evaluate some information and sometimes relied on biased, and definitely, incomplete information when it prematurely concluded that there was “No” conflict of interest. They did not follow the methodological standards that they claimed they would.Limitations:
The MNP report admits some serious “Limitations”, including not interviewing “the owners of AES”. Instead it states that it relied on “Mr. Janz…a shareholder of this organization…to provide information regarding the sale” (p. 4). During the period of these sales, Janz was both a Town councillor and a Director of Abaco. As such, he was the council member most open to question regarding conflict of interest. And, we will later show, in detail, that some of the information coming from him was contradictory and clearly unreliable.
Furthermore, if MNP was going to rely so much on Mr. Janz as a main source of information about these land sales, why did it take them so long to interview him; he was the last person interviewed. And though he was listed from the start as one of the essential persons to interview, he almost didn’t get interviewed at all, without the Town agreeing to additional costs near the end of MNP’s investigation. Later in this document, using information received from Freedom-of-Information (FOI) requests, we will look at behind-the-scenes emails between Town and MNP officials that help us to better understand why the conflict of interest issue was so mishandled.
The MNP report also says “MNP did not consult with legal counsel”. It added “we have not rendered a legal opinion with respect to compliance with any section of any Act referred to in this Report.” This, itself, should be a red light.
This limitation clearly influenced the superficial handling of conflict of interest. MNP didn’t even interview the Town lawyer, Richard Molaro, who, on Dec. 3 and Dec. 18, 2013, wrote the critical letters on conflict of interest to the mayor and council. It is noteworthy that neither of these letters nor the interviews of the past mayor and councillors, pertaining to the events between Dec. 3-21, 2013, are ever seriously discussed in the MNP report. The letter of Dec. 3, 2013 isn’t even mentioned. And though MNP acknowledges that there is no documented indication that the serious conflict of interest issue raised by the lawyer was ever discussed by council (see # 13 below), MNP did not make a point of independently investigating the background to this. Why not?
The MNP report also admits it was unable to obtain an “Interview with Cal Tulik, whom (sic) declined to be interviewed” (p. 4). Cal Tulik is the owner of Apex, which did the demolition and disposal work for Abaco at the old Indian Hospital site. It was Tulik that made the April 2, 2014 side-deal with the Town to get land in exchange for doing some of this disposal work for Abaco. Abaco director Brian Janz was at this meeting. It would therefore not be possible to adequately address, not only the conflict of interest issue, but also the matter of fair market value without relevant financial information from Apex. This was never obtained.
The MNP report outlines its “Methodology”, which includes reviewing “of Town Council minutes from Jan. 11, 2007 to Dec. 22, 2016”, the period of the audit. The report says, “MNP reviewed all minutes and made note of any approvals to sell land passed by council” (p. 5). But this is not true. The report never mentions that there were some missing files pertaining to the land deals with Abaco. There were two meetings where the council decided to sell land to Abaco; September 30, 2013, with amendments on Dec. 21, 2013; and the meeting that led to the August 28, 2015 agreement. No minutes were ever found for the council meeting that approved the August 28, 2015 sale of Block Y to Abaco for $1.00. In his Oct. 24, 2017 letter to us, present Mayor Jerry Whiting, stated, regarding our request for this document, “We are unable to locate any record referred to in this request.” It is noteworthy that in its final audit report, MNP does not mention that this critical Town council record of one of the two land deals with Abaco was missing.
Instead, highlighting Brian Janz’s Dec. 17, 2013 response, MNP quotes an erroneous statement from Janz that he declared his pecuniary interest on Sept. 30, 2013 (see # 7 and 8 below). He actually did this on Dec. 21, 2013 which MNP knows full well (see # 6, 12 and 18 below).
Meanwhile, MNP did not point out that this letter from Janz is written in response to the Town lawyer’s Dec. 3, 2013, letter which is not mentioned by MNP. Nor does the MNP report mention that Janz ends this letter by saying “I would appreciate advice regarding Council’s intention regarding request for my resignation…and that he asked for “an open council meeting for Thursday, Dec. 19, 2013 @ 6 P.M.” This meeting never happened and, as MNP itself notes, there is no indication that the council ever addressed the lawyer’s questions about conflict of interest, including at its Dec. 12, 2013 meeting and at its Dec. 21, 2013 meeting when it terminated its CAO and changed the name on the land sale agreement from Abaco Group to Abaco Energy Services Inc., which are the same business interests.The MNP report does refer to the Dec. 18, 2013 letter from the Town lawyer, which was written in response to the mostly erroneous Dec. 17, 2013 letter from Janz, but the report does not look at what the Town’s lawyer said about conflict of interest in the Municipalities Act. This vital Dec. 18, 2013 letter was also ignored when the present mayor wrote his chronology on these land deals for the audit. This exclusion of information coming from the Town lawyer about conflict of interest is unconscionable.
MNP also says it reviewed and relied on a long list of “documentation and information”, which included the Municipalities Act of Saskatchewan, and all the documents (several hundred pages) that we, the QVEA, provided. Based on how the final report handled this matter, including its failure to even consider the available legal information, and its failure to ever establish an objective chronology of events, we respectfully suggest that this was done poorly and in name only. (See Section H below).
MNP has a summary of its findings, including about conflict of interest. About this it asks: “Was any person in a conflict of interest, as defined by the Municipality Act of Saskatchewan or the Town of Fort Qu’Appelle Code of Conduct?” (p. 9). And it answers with an uncategorical “No”. So, why, when pressed by the local Fort Times reporter, did MNP official Mr. McCormack so quickly equivocate and say “maybe” there was conflict of interest?
The eclectic and illogical discussion in this summary sub-section of MNP’s report provides some clues.
Right after saying there was “No” conflict of interest, the MNP report suggests otherwise. It admits that it “received conflicting information from the interviews conducted of the councilors that were involved in the Abaco negotiations regarding when Mr. Janz’s involvement with Abaco was known and how involved Mr. Janz was in the negotiations” (p. 9). Clearly this meant that, at the very least, MNP should have carefully evaluated the validity of the conflicting information, before drawing any conclusions. It had stated that this is what its forensic audit would entail. Later we will demonstrate that this was never done, including in the body of the report.
MNP also states, that “from a review of documents provided the first instance of documentation identifying an interest is an email exchange on Dec. 13, 2013.” This is a critical finding, but MNP then failed to explicitly point out that this occurred well after the Town first sold land to the Abaco business group, on September 30, 2013. The objective chronology of events consistently shows that there was a conflict of interest which was kept from council.
MNP also says “From the documentation reviewed, Mr. Janz did not participate in any meetings where there were approvals made regarding Abaco Group or Abaco Energy Services.” This suggests that MNP doesn’t accept the distinction in the names used for the interwoven business interest as an excuse for Janz not disclosing his business-pecuniary interest until later. In this regard, MNP is correct. So why does it not clearly say so?
Furthermore, this statement is not fully accurate, for MNP did find that Mr. Janz was definitely in the April 2, 2014 meeting that discussed and decided to accept the side-deal with Apex, which was doing work for Abaco. Though this decision was not formally approved until April 10, 2014, the decision giving and sending approval was communicated to Apex on April 2, 2014. The fact that this matter was more fully documented after MNP issued its final report does not, at all, alter the fact that this constituted a conflict of interest. (See emails in Section E below).
Simply not being at meetings does not absolve an elected official of a conflict of interest, especially when that person has not even disclosed that he has a pecuniary interest. And clearly, participating in the April 2, 2014 meeting that bears upon Janz’s pecuniary interest, even after disclosing this on Dec. 21, 2013, was also a breach of the conflict of interest legislation. Janz’s attendance at a portion of the in camera session on the Dec. 21, 2013 council meeting may also have been problematic.
MNP also says that Jeff Brown, “recalls Mr. Janz recusing himself after the first meeting with Abaco and that Mr. Janz was not involved in negotiations.” Recollections are very malleable. And why was there no documentation found of “the first meeting” or any other meetings where negotiations occurred? Furthermore, Jeff Brown, a close colleague and friend of Brian Janz, was the councillor most supportive of the Abaco deals. He made all the motions to sell land to Abaco (V,Q and Y) and to accept the side-deal proposed by Apex, which was working for Abaco. The question remains why Brown’s singular recollection ended up having any standing in MNP’s findings when it was contrary to the evidence from almost everyone else and from the Town’s own records?
Then MNP adds, that from “…our interviews with Ron Osika, Darrell Webster and Lee Finishen that Mr. Janz was involved in committee meetings, meeting with Abaco and Council and was involved in the decision-making process until December when his interest was determined by Town legal counsel.” This is pretty clear and overwhelming. Again, MNP was obliged to evaluate the truth of all this seemingly conflicting information. Surely the views of the larger group, which includes the past mayor, past CAO and only councillor from then that is still on council, would be given more weight than a vague, undocumented recollection by Jeff Brown, a close colleague and friend of Brian Janz. This would seem the accurate factual conclusion, especially when the views of the larger group and not that of Brown coincided with what MNP had independently established and corroborated about Janz’s disclosure not occurring until December 21, 2013.
MNP adds that “There was no documented special meeting which involved the sale of the Hospital to Abaco.” If there was no documentation of such a meeting, then who is to say who participated in the ongoing discussions with Abaco? The negotiations seem to have been blended in with the Town’s general business. Were these land deals also perhaps discussed, out of the public view and record, and also in camera, without the required justification or documentation? It was the responsibility of MNP to seriously explore this. There is no indication that it did so. (See Section E on emails below).
MNP ends this discussion saying “We have found no corroborating documents that Mr. Janz acted in a conflict of interest.” They say this without acknowledging all of the above, or looking at what was in the Town lawyer’s Dec. 3, 2013 letter and in the Town’s own Dec. 21, 2013 minutes. Is this statement included to somehow justify MNP concluding that there was “No” conflict of interest? It does not. Surely the conflicting views, and the careful evaluation of their validity, the objective timeline, and corroborating evidence was sufficient to take the next step, and carefully look at whether any requirements under the Municipalities Act were breached. While MNP claimed it was going to do this, it was never seriously pursued.Even without going to the substantive discussion of conflict of interest in the body of the report, there is already reason from the report’s Summary to be very skeptical of MNP’s conclusion that there was “No” conflict of interest. You can see from this material why Mr. McCormack would so easily shift to publicly saying “maybe” there was a conflict of interest. So, we have to ask why the audit didn’t seriously investigate this probability.
What were the findings of the MNP audit regarding Brian Janz and his connection to Abaco Energy? This is addressed at the very end of the report, on pages 35-40. As we will see, it is abundantly clear from the highly contradictory information, that further investigation was required. We will number the “information” so that it can easily be referred to in our discussions.
Page 35 of the MNP report includes the following pertinent information:
1. “Abaco Energy Ltd. was incorporated in 2008…” The directors include Brian Janz who is a “25% shareholder in the corporation.”
2. “Mr. Janz was elected to council in Nov. 2012. We have no records of Mr. Janz declaring business interests at that time”.
Page 36 of the report includes:
3. “…during 2013 Abaco began discussions with the Town over the proposed project for Lots V and Q.”
4. On Sept. 30, 2013 council passed a motion “…we accept the offer of Abaco Group of $1.00 for Block Q and V.” It is very notable that the MNP report adds “…other Council members …were not aware of Janz’s interest in Abaco Energy Services at the time this motion was passed.”
Page 37 of the report includes:
5. From their March 6, 2018 interview with Janz, MNP notes that Janz dissociates himself from the Abaco Group saying “I have zero to do with that, absolutely nothing to do with it.”
6. The report also says “Mr. Janz stated that he declared his interest in December (2013) when he was aware of the change of the name of the owners.”
7. The report then quotes from Janz’s Dec. 17, 2013 letter to the Town, regarding his conflict of interest, where Janz wrote, “I advised the Mayor & Council of my pecuniary interest prior to the Special meeting held on Monday, September 30, 2013 where the motion was made and passed to accept the offer of Abaco Group to purchase Block Q and V.”
8. Quoting from Janz’s letter, the report continues, “I was incorrectly noted on the Minutes of this meeting as absent, when in fact I had recused myself and was abstaining…as I had a pecuniary interest.”
9. Again, from Janz’s letter, the MNP report continues, “I did not disclose that I was a director of Abaco Energy Services Ltd as Abaco Group was the company purchasing the property…”
Page 38 of the MNP report includes the following information:
10. Still quoting from Janz’s Dec. 17, 2013 letter, the MNP report continues, “When Abaco Group decided to make an offer to purchase the Old Hospital property they asked me to be involved in this project and I agreed and immediately advised the Mayor and Council and abstained from all discussions and voting…”
11. The MNP report makes no reference to the important Dec. 3, 2013 letter from the Town lawyer to the Town mayor and council. It does refer to the Dec. 18, 2013 letter from the Town lawyer to the mayor and council, laying out their two choices, in MNP’s words, to decide whether “…adequate disclosure was made by Mr. Janz…”, or to “…request Mr. Janz to tender his resignation and consider and vote on a new resolution…” Note: It isn’t an either/or but both are required.
12. The MNP report continues, that “On Dec. 21, 2013 the council made a motion to change the agreement to Abaco Energy Services, not Abaco Group. At this time Mr. Janz declared a pecuniary interest, as a director of Abaco Energy with zero shares...”
13. The MNP report then added, “There is no indication in the meeting minutes if this interest was discussed among council prior to passing the motion.”
14. The MNP report then continues, “From our interviews with former councilors and the former mayor we understand that the sale to Abaco was effectively complete when counsel became aware that Mr. Janz was involved in Abaco.” Note: “Counsel” refers to the Town’s lawyer.
15. The report continues, “Mr. Janz told MNP that since Abaco Group was purchasing the property, he did not declare that he was a director of Abaco Energy Services, despite Mr. Tschider owning Abaco Energy.” (Note: Tschider is a friend of Janz as well as a director and/or owner of all the Abaco companies, including being President of Abaco Energy Services.)
16. The report continues, “Mr. Janz told MNP that he is not a shareholder of Abaco Energy Services…However as noted in Appendix U, Mr. Janz is listed as a 25% shareholder in the corporation.”
Page 39 of the MNP report includes:
17. In his interview with MNP, Jeff Brown “…noted that he recalls Mr. Janz recusing himself after the first meeting with Abaco and that Mr. Janz was not involved in negotiations.”
18. However, MNP continues, “On Feb. 15, 2018, Michael McCormack from MNP contacted Ron Osika, Darrell Webster and Lee Finishen with respect to the statement made by Mr. Brown…Each person related that Mr. Janz was involved in committee meetings, meeting with Abaco and Council and was involved in the decision-making process until Dec. when his interest was determined by Town legal counsel.” Note: Osika is past mayor, Webster was Town CAO at the time and Finishen is the only councillor from the previous council still on Town council.
19. The MNP report continues, “MNP requested all committee. meetings between April and Dec. 2013. There was no documented special meeting which involved the sale of the Hospital to Abaco.”
20. The MNP report says, “On April 2, 2014 at a special council meeting, Administration presented a proposal from Apex Enterprizes regarding Parcel F. Discussions followed. We note that Mr. Janz was identified as present at the meeting.”
21. The report then says, “On April 10, 2014, when the motion was passed, Mr. Janz abstained from the vote."
22. The MNP report says, “On March 6, 2018 Michael McCormack from MNP interviewed Brian Janz. Mr. Janz told MNP that he believed that the reason that this matter was sought by way of petition was a result of the Willow Park (sic, should be Court) construction.” Note: Willow Court condo access off of Parcel Q was blocked by Abaco right after Janz lost his seat on the local council. (See Section H, # 23, 40 below).
MNP stated it would evaluate information for reliability and completeness. It did not do this. There remain several matters of fact that require clarification from all the information included in the MNP’s own report.
First, several contradictory statements by Janz can’t all be true. In some places he claims that he declared his pecuniary interest on Sept. 30, 2013 (see #7 and 8 above), in other places he claims that this happened on Dec. 21, 2013 (see #6 and 12 above). It appears clear and therefore should have been clearly noted in MNP’s final report that Janz did not declare his pecuniary interest until Dec. 21, 2013. This is what the Town minutes show. Furthermore, if Janz had declared his pecuniary interest earlier than he did, there would have been no reason for the Town lawyer to write his Dec. 3, 2013 letter to the mayor and council about Janz’s pecuniary interest and conflict of interest (see 18 above). Most revealing, in his March 6, 2018 MNP interview (p. 37) Janz straight out admits he didn’t disclose his pecuniary interest as a director until Dec. 21, 2013. Note: It was a major error of omission that MNP did not refer to the Dec. 3, 2013 letter, as it is to this letter that Janz’s Dec. 17, 2013 letter was replying.
Second, Jeff Brown’s recollections about Janz recusing himself early on, and the way the previous mayor, CAO and past councillors remember the chronology of events, can’t both be true. Without specifying any recorded dates or events, Brown simply “recalls” Janz recusing himself (see # 17), whereas all the rest of those on that council who were interviewed say that this was not the case. They did not know of Janz’s pecuniary interest until December 2013 when the Town lawyer investigated the matter (see 4, 14 and 18 above). This later date, of Dec. 21, 2013, corroborated by Town records, is clearly where the truth lies. Furthermore, Brown was the strongest proponent of the land deals with Abaco; he moved the related motions to sell V, Q and also Y to Abaco, and to accept the side-deal with Apex, which benefitted Abaco. He remains a close colleague and friend with Janz. There is no reason to accept his unspecified recollections over the views of almost everyone else that was involved at the time. MNP should therefore have established that the views of the majority, not Jeff Brown’s vague recollections, were the most credible information. In this regard, we wonder why MNP did not directly quote anything in its report from the previous mayor, CAO and councillors? The only person MNP directly quotes is Brian Janz.
Third, MNP implies that discussions about the land deals had to be ongoing as there was no special meeting that addressed this (see 3 and 19 above). Note: the decision to sell Abaco Parcels V and Q was made at the regular Sept. 30, 2013 council meeting and the name change of the company occurred at its Dec. 21, 2013 meeting. MNP notes that Janz was in regular attendance for Town discussions that could have been addressing negotiations with Abaco while Janz had not disclosed that he was a director. Furthermore, Janz was present for the April 2, 2014 discussion of the proposed side-deal between the Town and Apex to dispose of rubble from the demolition work, it was doing for Abaco, at or by the old lagoon. This was in exchange for 3 acres of Parcel F. (See # 20). Also, it is vital to note that in spite of there being no formal motion passed about this side-deal until April 10, 2014, when Janz was absent, the CAO informed Apex on April 2, 2014 that the council had approved its proposal and that it could proceed with the dumping, after the meeting at which Janz was present. (See letter from Town CAO Kelly Schill to Cal Tulik, of Apex, dated April 2, 2014). There may also have been problems with Janz attending part of the in camera session of the Dec. 21, 2010 council meeting, where the “CAO and Abaco” were listed as topics for the closed meeting.
Fourth, it can’t be both true that the Abaco Group is, and is not, connected to Abaco Energy Services. The Town lawyer clarified this in his Dec. 18, 2013 letter, saying that “…’Abaco Group’ is not a corporation in its own right but rather refers to a group of associated corporations, eight of which are American corporations, as enumerated at the foot of Stacy Tschider’s offer letter of September 9, 2103 (sic, should be 2013) and one of which is the Canadian corporation, Abaco Energy Services Ltd.” This establishes that whichever name was used, Janz was connected and had a conflict of interest. That is why, if you google “Abaco Group” it will bring up information about Abaco Energy Services, and if you google “Abaco Energy Services” it will bring up information about the Abaco Group.Janz, nevertheless, falsely claims that Abaco Group is a different business interest than Abaco Energy, and that he had “zero” to do with it, as though this would be an acceptable reason for not declaring his pecuniary interest until the name change in the land sale agreement (see # 5 and 15 above). Furthermore, Janz contradicts himself as to whether having an association with the Abaco Group (of which Abaco Energy was a part since 2008) constituted a conflict of interest. In some places he implies that he knows full well that it did (see # 7, 8 and 10 above). In his March 6, 2018 interview with MNP, Janz is quite clear that he realized he was acting for the overall business interest of Abaco, saying “I’m gonna be their eyes, I’m gonna be their guy on the ground in Saskatchewan” (p. 37). And the fact that Janz tried to rewrite council history, by falsely claiming that he declared his pecuniary interest prior to the Town land sale to Abaco Group (see 7 and 8 above), suggests that he was aware that this was the same business interest and that he in fact had a conflict of interest which he had covered up. MNP should therefore have been explicit that this name difference was not a reason but rather a lame excuse for Janz not declaring his pecuniary interest when he was required to do so.
Fifth, it can’t be both true that Janz does and does not have shares in Abaco Energy, as he claims (see # 12 and 16 above). MNP reports that Janz was in fact a shareholder (see # 1 and 16 above.) If this is true, why would Janz suggest otherwise? And, even if it was true that Janz was not a shareholder, under the Municipalities Act, he would just have to be a director to have a conflict of interest. (See Section 143(1)). And, according to MNP’s findings, he had been a director since 2008 (see # 1 above), and all through the period that the Town discussed and then decided to sell this land to Abaco. Sixth, MNP did acknowledge that under Section 143(1) “a financial interest…always constitutes a conflict of interest” and that a financial interest is where “the member…is a director…of a corporation that could make a financial profit from… a decision of council”. It also acknowledged that under Section 144(1) “It is a responsibility of the member of council to declare the interest, disclose the nature of the conflict of interest…refrain from participating in discussion…” (p. 20). MNP should therefore have been forthright that this would all apply to Councillor Janz, confirming his failure to disclose that he was in a conflict of interest from the start.Finally, seventh, it is therefore justified to conclude, as factual findings: i) that Janz did not declare his pecuniary interest in the Abaco business before the negotiations began; ii) that he failed to do so until after the Town had sold some land to this interwoven company; and iii) that Janz continued to participate in Town discussions about his business interest even after he had declared his pecuniary interest. So why did MNP not clearly say this and base its final conclusions on these factual findings? Why was MNP so predisposed to let Janz off the hook and conclude that there was “No” conflict of interest?
The MNP report states that the Town did not have a bylaw requiring all members to disclose their business and pecuniary interests. This is true, and unfortunately Fort Qu’Appelle did not pass such a bylaw until it was required to, after an amendment to Section 142(1) of the Municipalities Act on Nov. 19, 2015. In this regard, the Town must hold some responsibility for the chaos resulting from the ongoing mishandling of the conflict of interest issue.
It is, however, noteworthy that MNP found that Brian Janz only made his official disclosure of his business interests in Abaco, as a founding director of Abaco Energy Services in 2008, on March 9, 2016, when it “…made it mandatory for all members of council to file a public disclosure statement…” (p. 36). This was several years after the first land sale to Abaco on September 30, 2013 and long after the final land sale agreement to Abaco on August 28, 2015. This delay can be taken as an indication of how important Janz took these obligations as an elected official.
But the Municipalities Act, nevertheless, had requirements that would still apply to the Town’s elected officials. In his Dec. 3, 2013 letter to the mayor and council, the Town lawyer notes that under Section 143(1) “…a member of council has a pecuniary interest in a matter if; (a) the member…is a director…of a corporation that could make a financial profit from…a decision of council…” He also noted that it states “a member of council has a pecuniary interest in a matter if;…(b) the member of council or a closely connected person could make a financial profit from…a decision of council…”
These clearly both applied to Brian Janz and his Abaco business associates, whether they were described as the “Abaco Group” or its member company, “Abaco Energy Services”.
The Town lawyer points out that Section 144(1) of the Act states that “If a member of council has a pecuniary interest in a matter before the council…the member shall… (a) declare the pecuniary interest before any discussion of the matter.” It is abundantly clear from the factual evaluation of the information assembled in the MNP report, that Brian Janz did not comply with this requirement.
Furthermore, under Section 144(2) the Act states that “No member of a council shall attempt in any way, whether before, during or after the meeting, to influence the voting on any question…in which the member of council has a pecuniary interest.” No one, including Janz himself, disputes that in 2013 Janz brought his Abaco business associates into discussions with the Town regarding these land sales. The present mayor even put it as follows in his chronology of events: “2013 Abaco (Brian Janz) had informal meeting with Town.” And, without immediately declaring his pecuniary interest, Janz would have contravened the conflict of interest requirements. There may be some uncertainty and even legitimate confusion about Janz’s role in the ongoing discussions, but it is clear from the beginning of these discussions, that Janz is acting on behalf of his business associates in Abaco. He says this in some Fort Times interviews; he directly admits this in his March 6, 2018 interview with MNP (p. 37).
In view of this, it is understandable why in his Dec. 3, 2013 letter the Town lawyer asks the remaining members of council to decide “…whether Mr. Janz had a pecuniary interest in respect of the ABACO resolution and, if so, whether he breached the requirements of section 144 of the Act…”. It is quite clear from the above, what the answer would be. The Town lawyer then sets out, that “Should the remaining members of Council come to the conclusion that a breach of section 144 had taken place, they ought…(a) request Councillor Janz to tender his resignation and (b) consider and vote upon a new resolution regarding the ABACO matter”. Note: They would have to do both, but ended up only doing one (b).
On. Dec. 17, 2013 Janz responds to the Town lawyer’s letter with contradictory and erroneous claims, none of which, after careful evaluation, would alter the fact that Janz had a pecuniary interest which he failed to disclose while discussions, negotiations and a decision by the Town to sell land to the Abaco business interest were occurring.
The Town lawyer’s Dec. 18, 2013 letter continues to lay out the same basic choices for council, asking them to decide whether there was “(a) adequate and timely disclosure of the pecuniary interest” and if “on the other hand, the remaining members of Council come to the conclusion that the requirements of section 144 of the Act have been breached, they ought…(a) request the member to tender his resignation and (b) vote upon a new resolution regarding the Abaco proposal.” Note: Again, both a and b would be required.
MNP does not discuss these chronological, legislative and legal details in any depth in its report and it completely ignores the Dec. 3, 2013 letter.
There is no indication from Town records that the Town councillors ever followed this legal advice given in both the Dec. 3rd and Dec. 18, 2013 letters from the Town lawyer. We now know that the council not only failed to discuss this at its Dec. 21, 2013 meeting but also at its Dec. 12, 2013 meeting. They made no documented judgment about “adequate and timely disclosure of the pecuniary interest”, and totally ignored the matter, laid out in the Act, of the member “to tender his resignation”. MNP acknowledges but does not investigate this omission (see # 13 above). The councillors simply went on to change the wording of the motion selling the land to Abaco Energy Services instead of Abaco Group, which was the same business interest. They completely disregarded the requirements under the legislation, as outlined by the Town lawyer in both his letters.
The Town lawyer did, perhaps, give the councillors a political way out when he said, “Should the remaining members of Council accept that the pecuniary interest arising from the member’s directorship would only have arisen in early November 2013, when Abaco’s legal counsel designated Abaco Energy Services Ltd. as the contracting party, it may find that Mr. Janz’s Dec. 17, 2013 letter, acknowledging his directorship fulfills the disclosure requirements of the legislation.” This, however, would leave the matter of whether there was a conflict of interest to be handled from a strictly political and not a factual basis. This would ignore the fact that in his Dec. 17, 2013 letter, Janz falsely claimed he had declared his pecuniary interest before December, in September, when the Town agreed to sell land to Abaco Group (see # 7 and 8 above). Further, this political approach would not acknowledge what the lawyer says about the Abaco Group including Abaco Energy Services, of which Janz was a director all along. Or, what Section 144 of the Act actually says about the requirement of an elected official to immediately disclose a pecuniary interest, which Janz clearly breached.
And most of all, based on what MNP reports that the other councillors said in their interviews, this depiction, that Janz’s pecuniary interest only arose in November 2013, is not at all congruent with the experience of the council majority at the time. Rather, they clearly stated to MNP that Janz had not disclosed his pecuniary interest prior to the discussions, negotiations and the first Town land sale agreement with Abaco (see 4, 14 and 18 above). That is why the Town lawyer wrote his Dec. 3, 2013 letter confirming Janz’s pecuniary interest.
It is possible that the majority of council deliberately evaded their legislative and legal obligation and the implications for Janz resigning, and decided to just alter the motion with the name change. However, the lawyer’s instructions are clear that the name change goes along with the required resignation for not properly disclosing a pecuniary interest. Perhaps the council didn’t want a public scandal that might undermine their political promise for an economic stimulus to the local economy from the proposed Abaco Hotel and Marina project. Town residents were already in some turmoil over allegations about mismanagement of funds by the CAO. Town officials certainly made sure that there was no public disclosure about what was happening behind-the-scenes regarding Abaco’s proposed project and Councillor Janz’s conflict of interest. Note: no detailed proposal about the marina project has yet been produced by Abaco or the Town. MNP admits that it was “unable to obtain” the original proposal from September 9, 2013 (p. 4).
The handling of this matter was clearly not done in a transparent manner. All the Dec. 21, 2013 Minutes show is that the CAO was fired in the first eight minutes of the meeting, which Janz attended, and then Janz declared his pecuniary interest and left the room, before the new motion to sell the land to Abaco Energy Services was moved and carried. The council may have hoped that this would lay the conflict of interest issue to rest. It did not.
It took several years, until 2016, for the wider public to begin to know enough to start asking questions about what the Town had been doing behind-the-scenes regarding these land sales to Abaco. The local Fort Times began to investigate the background to these land sales and it became evident that the Town had not been even minimally transparent. The QVEA was even been told there was no information available about the land sales, and the rumoured marina project, when we first made requests to Town officials in 2016. And we were consistently told that there was no information about this proposal, and when we persisted getting information, important information was withheld. After growing public discussion and widening concern, on October 26, 2016 both Brian Janz and Jeff Brown lost their seats on council.
In view of the legal and political sensitivity of this matter, it is perhaps not surprising, though it is disconcerting, that Town officials withheld pertinent documents from us on October 24, 2017, when they responded to our earlier Access to Information request. At that time, in response to our request for documents about Janz possibly being in a conflict of interest, Mayor Whiting withheld the Town lawyer’s Dec. 3rd and 18, 2013 letters, as well as Janz’s Dec. 17, 2013 letter. In response to our request for documents that “indicate that previous councillor Brian Janz was involved in any discussions…that led to the selling of Town land to Abaco” he wrote that “There are no records of which we are aware which would indicate this to have been the case.” In retrospect, from FOI records, especially about the April 2, 2014 special meeting, we know that this was not true.
Until we obtained information using Access to Information almost all of the background information about these land deals was unavailable. The 45-page chronology of events that we had put together, by August 31, 2017, as we slowly pieced the background together, shows that information was steadily being withheld from the public realm. None of this earlier mishandling of the issues by the Town council, of course, excused MNP for not fully delving into the matter. The 743 ratepayers who signed the petition deserved full disclosure from a fully independent investigation. They were cheated (See Sections E and F below) and still had to pay $80,000 for the flawed exercise.
The ongoing local political control of information is no excuse for MNP to not have done a full analysis of the conflict of interest issues regarding these land deals with Abaco. However, in spite of their obligation and promise to do a factual evaluation, MNP, too, skirted around important information. If this matter is not investigated thoroughly and independently it will be an obvious travesty of justice. It will make hundreds of local voters and ratepayers, who believed they had a right to get to the bottom of these issues, even more cynical about the lack of effective and honest oversight to ensure full transparency and accountability in Fort Qu’Appelle’s local government.
We now have access to FOI files: 1) on the Town’s land sales to Abaco; 2) the passing to the Province of the federal PFRA Crown land that Abaco also tried to purchase; 3) the WSA’s handling of this matter; and 4) Town files on the actual MNP audit. This amounts to around 1,500 pages. We will issue public Postings at QVEA.CA based on what we find in these files.
The FOI files on the audit help us to better understand the way MNP approached and then side-stepped its own findings on conflict of interest. The Notes taken at a Jan. 8, 2018 meeting between Town officials and MNP, say that “No determination of fault or fraud will be identified. Only a factual account.” This appears to be a pre-judgment on what the facts will be and can even be seen as a relinquishing of the auditor’s legislative responsibility to investigate whether there is any fault or fraud and if necessary, to forward its findings to higher authorities.
After starting its factual investigation, MNP seems to have gotten back on track. The Notes from the Feb. 8, 2018 consultation between the parties say, “Looking at whether the reports will have to go to Minister of Justice, re Brian Janz may have been in conflict of interest.” By then MNP had interviewed the past mayor, two councillors and both CAOs from that period. This was also two days after the petitioners and QVEA were interviewed, and had provided MNP with hundreds of pages of documentation that had been assembled by that time. As we will see, there was still a lot of even more compelling information that was not yet available to us. This includes the Town lawyer’s Dec. 3rd and 18th, 2013 letters, Janz’s Dec. 17, 2013 letter and records of the April 2, 2014 special meeting that were all withheld from us by Town officials.
On Feb. 7, 2018, the day after MNP interviewed the petitioners and QVEA, Nicole Kalesnikoff (NK) of MNP writes CAO Larry Davidson (LD) and Mayor Jerry Whiting (JW), cc’d to Mike McCormack (MM), re “additional documents/information”, “Could you follow up with Rick Molaro to see if he has any further documents on the due diligence performed around the sale of Lots V, Q and Y to Abaco.” Then, on Feb. 12, 2018, MNP sends its Interim Report of Forensic Audit to the Town. In it MNP says, as one finding, that “…Brian Janz, a councillor involved in the sale to Abaco, declared his pecuniary interest (as a director of Abaco) after the land sale negotiations had begun. Mr. Janz is now a shareholder in Abaco.” Later in the email it says, “Mr. Janz should be provided the opportunity to provide an explanation of the circumstances of the sale of the Hospital and his involvement with Abaco Energy.”
This acknowledgement that Janz was “involved in the sale” and that his pecuniary interest was only declared “after negotiations had begun”, already shows that there was a conflict of interest. And we know from statements in MNP’s final report that this interim finding was only half true, for Janz did not declare his pecuniary interest until after the first land sale of Lots V and Q to the Abaco business interest with which he was all along associated (see 4, 6, 12, 14 and 18 above).
On Feb. 14, 2018 there was an email from MNP’s MM to CAO LD and JW, cc’d to MNPs Greg Draper (GD) and NK. It says “…here is the Change Order for the services as discussed.” In this it says, “Mr. Janz has a pecuniary interest in Abaco and given these latest revelations MNP believes that an interview should be conducted in person with Mr. Janz if he consents…” We can assume that the “revelations” have to do with the past mayor and past councillors being clear that Janz had not declared his pecuniary interest until after the first land sale (see 4 and 18 above). Doing this interview with Janz (and also finally investigating the sale of Y to Abaco) is given as a reason that MNP’s audit will now cost an additional $13,170.
This is somewhat peculiar as the Notes from the very first meeting, on Jan. 8, 2018, show that Janz was listed as the second person (after past Mayor Osika) on the list of people that should be interviewed, and on Feb. 12, 2018, MNP had reiterated that this interview should occur. Also, the original petition specifically referred to the sale of Lot Y along with Lots V and Q, to Abaco, so why was the investigation of Y not done as part of the initial contract work? Did this have anything to do with there being no council Minutes showing the approval of the Aug. 28, 2015 agreement that sold Abaco Lot Y? And why did the MNP report never mention that these Town records for one of the two land deals with Abaco were missing?
The MNP audit now appeared to be doing more serious fact-finding about conflict of interest. On Feb. 15, 2018 there is an email from MNP’s NK to CAO LD and Mayor JW, cc’d to MM, on the “Old Hospital Time line”. Included is a list of prospective buyers of Lot V, where the old Indian Hospital was, prior to the sale of this (with Q thrown in) to Abaco. The Timeline also includes, “Dec. 18, 2013. Various correspondence and emails regarding Abaco Energy Services and Pecuniary Interests of Members of Council.” This must refer to the Town lawyer’s Dec. 18, 2013 letter of instruction to the mayor and council. Again, however, there is no mention of the lawyer’s Dec. 3, 2013 letter where he documents Janz’s pecuniary interest, lays out what would constitute a conflict of interest for Janz and what the council should do about this. It is also noteworthy that in this Time Line, there is no mention of the Oct. 18, 2010 minutes where the Town informs Pellaway Bay Resorts that Parcel V will cost $302,000 “as is”, meaning carrying all demolition and disposal costs, and that “Parcel V is the only available land…Parcel Q is reserved for expansion to Echo Lodge and/or extension of storm sewer requirements in the future.”
Later that day MNP’s NK again emails CAO LD, JW, cc’d to MM, re “Abaco Negotiations”. She asks “Are you able to look through the CAO emails and send us any that have discussion around the Abaco negotiations involving the hospital.” Later, on Feb. 15, 2018, there is an email from MNP’s MM to CAO LD, cc’d to NK, re “committee meeting minutes”. MM says, “…we are trying to piece together conflicting stories in regards to Mr. Janz. We have been advised there would be committee minutes which would not be reflected in the Council minutes.” This email was sent at 5:25 PM, which may have been after MNP interviewed past Councillor Jeff Brown on that same day. As discussed earlier, Jeff Brown, colleague and friend of Brian Janz, was the only previous councillor who recalled that Janz had recused himself prior to negotiations and sales, so perhaps this is the “conflicting story” to which MNP refers. However, the documented evidence, including what MNP consistently reports as being fact, already indicate that Mr. Brown’s undocumented recollections were incorrect.
The next day, CAO LD emails MM, cc’d to NK and JW, “I found these committee minutes…” He continues, “I would like to draw your attention to the Dec. 21, 2013 Special Council meeting. It appears that Councilor Janz was part of the in camera discussion and then declared a conflict of interest prior to a motion.” This is a very astute observation by the Town’s CAO. The Minutes show that this meeting went in camera “for the discussion of Darrell Webster and ABACO”. Janz was present. After coming out of camera, Janz moved and Brown seconded “That we rescind Motion 258/13”, which was carried. (We now know that this motion, from the Dec. 12, 2013 meeting, called for the termination of Webster as of Dec. 13, 2013.) After CAO Webster’s employment was again terminated on Dec. 21, 2013, Janz “declared a pecuniary interest and left the room”. We can find no written response from MNPs MM to this vital query about Janz’s participation in this in camera session.
Once MNP finally gets around to interviewing Janz, there is some untoward communication with the Town CAO. On March 6, 2018, at 2:44 PM, MNPs MM emails CAO LD, that “I will let you know how the interview goes once completed.” At 9:34 PM he again emails the CAO saying, “the interview went very well at about an hour and a half.” Such communication seems very inappropriate. And just what MNPs investigator means by saying to the Town official that it “went very well” is not self-evident. In retrospect, it may have meant that MNP thought the interview enabled it to find a way around the conflict of interest issue.
At some point MNP had to decide whether there was enough evidence that there had been a conflict of interest to require that the report go directly to the Province. On March 13, 2018, there is an email from CAO LD to MNP’s MM, cc’d to JW, asking “Will you be providing the report directly to Government Relations, or will we be submitting it?” Later that day, at 2:16 PM, MNP’s MM emails back to CAO LD, JW, GD and NK that “We have gone through the review process of what we have found and in our opinion does not meet the threshold set by the legislation to report to the Ministry directly”. There is no information regarding what MNP considers “the threshold”; there is no summary of MNPs factual evaluation of its findings or any indication that they have considered the implication of this for determining whether a conflict of interest occurred. There is no evaluation of what Janz said in his March 6, 2018 interview. Nothing at all. Nor does any of this occur within the body of MNP’s final report.
On March 26, 2018 there is another email from MNP’s MM to CAO LD, NK and JW Re “confirmation of receipt by Minister’s office.” MM says “As per the Municipalities Act we have not found definitive breach of any conflict of interest rules therefore the report submitted to you as our Client.” Again, nothing on what a definitive breach of the rules would look like. Furthermore, isn’t this an admission that a breach occurred? Yet, nothing on why Janz not declaring his pecuniary interest before negotiations began, which Town minutes and the Town lawyer’s letters clearly show and MNP acknowledges, and Janz admits in his interview, is not a definitive breach. Nothing on why Janz failure to declare his interest before the first land deal with the business interest with which he has all along been associated, which MNP also acknowledges, and Janz admits in his interview, is not a definitive breach. And nothing on why Janz’s involvement in Town discussions bearing on Abaco after he had finally declared his pecuniary interest in Abaco, which the Town records of the April 2, 2014 meeting show, is not a definitive breach of these rules. Nothing at all.
One other email is directly pertinent to how MNP mishandled the conflict of interest investigation. On Apr. 9, 2018 there is an email from CAO LD to MNP’s MM and NK, cc’d to JW, regarding “Minutes of Special Council Meeting Apr. 2, 2014”. The CAO says “I realize this information is too little, too late, but I thought I would share it with you. I found this in another file folder. The file system leaves a lot to be desired. It appears the special meeting did happen…The minutes do not reflect a motion…no mover or seconder or approval but indicate that the item will be brought to the Apr. 10, 2014 council meeting for ratification.” This special meeting discussed Apex’s proposed side-deal with the Town regarding the disposal work it was doing for Abaco. Even though there has been no ratification, CAO Kelly Schill writes Cal Tulik of Apex on April 2, 2014, informing him that the Town has accepted his proposal and that he can go ahead. The Minutes show Brian Janz to be present in this discussion and de facto decision, which clearly constituted yet another definitive breach of the conflict of interest rules.
It is most interesting that the Town’s CAO says that, “Subject to a written release by Apex Enterprizes, and your approval, I will share this information with QVEA.” This is quite problematic as this information about a council meeting had previously being withheld from us, and it should be fully transparent. And a company that benefitted from the hitherto secret and flawed decision-making process should not be given any veto over the release of this information. Nor should MNP. On Oct. 24, 2017 Town officials withheld information about this April 2, 2014 meeting from us. QVEA was never sent this material even after the April 9, 2018 revelations. We located the proof of the April 2, 2014 meeting, which Janz should not have attended, in MNP’s Appendix Q on p. 233 of its final report.
Releasing the Engagement Agreement: The FOI files show that there was a lot of communication between the Town and MNP regarding the petitioners and the QVEA. This occurred over the petitioners’ request for a copy of Appendix A of the Engagement Agreement between the Town and MNP. On Jan. 23, 2018, at 3:36 PM, in response to a “phone call”, MNP’s Mike McCormack (MM) emails CAO Larry Davidson (LD), that “The Appendix gives our course of action and details of the engagement…generally speaking working papers and work plans are not disclosable during the course of an investigation and could impede the investigation. I would be concerned with the interest group impeding the investigation…”
Then there is an email from LD to MM, which lists some of what is in that Appendix, including reference to the audit’s responsibility to “Ensure compliance with applicable laws and process, public notice, and the required resolutions of council.” The CAO asks MNP, “Please indicate which sections or why this information would jeopardize our audit.” He continues, “I will not respond to the privacy commissioner’s office until you respond.”
MM wrote back at 11:28 PM that “The Appendix ‘A’ could be provided to the petitioners if the engagement procedures were redacted. In this way our procedure, methodology and work plan would not be compromised by the disclosure to the interest group.” He added that he recommended “that section 4 of Appendix A be removed.”
The only Section 4 we could locate in Appendix A was called “Methodology”. In this it states that MNP is to “Review details on the purchaser and any potential conflicts of interest involving Town council.” We suggest that in view of all of the above documentation of MNP’s own fact finding, that MNP totally failed to objectively pursue this commitment to address “potential conflicts of interest”. Section 4 also says that, “Prior to commencement of each phase MNP will receive consent from the Town to continue to the next phase. In this manner the Town will be able to control expected steps and outcomes in order to minimize costs.” We respectfully submit that these guarantees to the Town, which was supposed to be the object of an independent audit, undermined the very independence required for such an audit. As such these guarantees can be seen to constitute a conflict of interest, which is perhaps why MNP did not want this aspect of its Engagement Agreement to be disclosed. Clearly there is a need for legislative reform to ensure that municipal audits are truly done in an arm’s length, objective manner. They probably should be overseen by the Provincial Auditor.
Furthermore, what MNP is dismissively referring to as “the interest group” is the petitioners who presented 743 names of voters and ratepayers who wanted this forensic audit. In these behind-the-scenes deliberations we are already seeing the Town and MNP acting as though they are collaborators, rather than public servants acting, independently, to investigate the rightful concerns of the broad-based public that rightfully brought this matter forward. It also seems questionable for the Town CAO to be consulting with the company contracted to do an independent forensic audit on the Town, about what files it should be releasing to the petitioners. This should be a matter that is addressed by consulting with the Privacy Commissioner. There are more examples of this apparent collusion. Seeing the Draft Report: It is very revealing to follow the discourse between Town and MNP officials regarding the process of finalizing the audit. There are revealing emails about whether or not the report is going to be a draft or a final one, which raise additional serious questions about what was happening behind-the-scenes. On Jan. 9, 2018, after the Jan. 8th meeting between the parties, there is an email from CAO LD to MNPs MM confirming that the “Draft report will be completed tentatively between Feb. 15-22th.” On Feb. 12, 2018 there is an email from MNPs MM to CAO LD, cc’d to NK, saying “We will be working on a draft report as we indicated and should be in a position to get that portion to you by March 5, however anything completed by the assessor would need to be added after and then reviewed if there were any concerns identified…”. It is pretty clear from this communication that the Town is going to get to review the draft final report and its recommendations, and comment on its concerns before it is issued as a final MNP report.
On Feb. 27, 2018 there is an email from CAO LD to MNPs MM, saying that, “The Ministry of Government Relations is unable to provide an extension as requested. As such we will have to honor our original timeline. We need to submit the final draft to the Minister by March 31st. We likely have a little time thereafter to share this information with the residents.” So, there is now some pressure to complete the audit, which likely turned out to be of a larger scope and more complex than MNP probably first thought. For example, the number of land sales that needed review more than doubled, as did the cost to the ratepayers. Note: the original cost was around $30,000 whereas the final cost was around $80,000.
On Feb. 27, 2018 there is an email from CAO LD to MNP’s MM, cc’d to JW, that says, “The original intent was to have a complete draft report by March 15th to review by council and then a final report to the Minister by March 31st. Following that MNP is to give a presentation to the public.” It is clear from this that the Town expects to review a draft copy prior to MNP issuing its final report, which will then go to the Province, after which MNP will take its results to the public. This clearly goes against all the rhetoric about MNP doing an apolitical, arm’s length investigation.
On March 13, 2018, at 7:59 AM, there is an email from MNPs MM to CAO LD, JW and NK, saying “Nicole will be completing the report today…I have assumed that you want a final report and not a draft report to review. Normally we would send a draft report which you could review for any inaccuracies but give (sic) the circumstances I assumed we would give you a final report so there is no concern of tampering with the investigation.” Though MNP is clearly being sure that the Town gets to see and comment on its draft, it is trying to manage the perception of its audit process not being seen as fully independent.
And, anyway, after saying all this, at 2:16 PM on March 13, 2018, MNPs MM emails CAO LD, that “We will prepare a draft report for your review and this should be completed by tomorrow. The draft will contain all information in regard to property Y…We will provide you with any changes to the report with… significant time for your (sic) to review before finalizing the report.” And then, as though it had never sent the earlier email, about concerns about Town tampering, MNPs MM says, “Once you have had an opportunity to review it, we will finalize before March 31st for your submission.” There is a lot of behind-the-scenes smoke and mirrors at play here.
On March 16, 2018 there is an email from MNP to CAO LD and JW, cc’d to MM, saying “I have sent you a copy of your draft report…please let me know if you have any questions.” The name of the person from MNP is redacted.
There is then a flurry of emails on March 22-23, 2018 about finalizing the report. On March 22, 2018, MNPs MM emails Mayor Jerry Whiting (JW) and CAO LD, cc’d to GD and NK, that “The report will be going out as final. This means that any changes to the report will require a new report and clarification as to the changes. Please let us know if you want this to go in draft, otherwise we will finalize our work.” In spite of what it had said earlier, about not wanting the independence of the audit to be questionable, MNP is now giving the Town the opportunity to review its findings before it gets issued as a final report. We wonder if there was further discussion, say by phone, not recorded in written form, at this point.
At 7:04 AM on March 23, 2018, CAO LD emails back to MNPs MM, cc’d to JW, GD and NK, to “You may print the report as a final version.” This confirms that the Town reviewed and approved what was to be in MNP’s final report. At 2:22 PM CAO LD emails MNPs MM, NK and JW, re “Final Report”, saying “Based on our conversations, I was led to believe that MNP was going to make reference to the Town being supportive and providing documents in a timely fashion, or something to this effect. I did not observe this.” At 3:16 PM, MNPs Greg Draper (GD) emails CAO LD, and MM and NK, saying “Mike and Nicole had included a paragraph on the Town’s support, but I removed it. I was concerned that it would be perceived by the petitioners and the QVEA group as a lack of independence on our part.” Again, even though MNP is carefully consulting with the Town about what was in its draft, before it issues it as a final report, it is still trying to manage the public perception that it is doing a fully independent investigation. This smacks of collusion.
On March 26, 2018 there is an email at 4:21 PM from MNPs MM to CAO LD, JW confirming that, “As far as the Minister of Justice we will not be providing them a copy of the report.” At 4:48 PM CAO LD replies saying, “Sorry, but the Act is explicit. Section 140.1.” He includes “(12) If the auditor’s report identified instances mentioned in clause (1)(a), the auditor shall forward the report to the Deputy Minister of Justice for further investigation…” Section (1)(a) would clearly apply to all the factual information that MNP located about Janz’s conflict of interest. There is no indication that MNP replied to this legitimate concern.
Controlling the Public Meeting: There are other emails between Town and MNP officials about the petitioners and QVEA that further suggest that this was not an independent, arm’s length audit. Several emails are about the forthcoming (April 26, 2018) public meeting where MNP was to present its findings to the electorate and ratepayers. On Jan. 15, 2018 there is an email from MNPs MM to CAO LD, cc’d to JW, GD and NK, about “presentation to the community”. MM remarks that “As this is a political matter, our partner Greg Draper and one of our team members, will attend the community for the purposes of the meeting.” On March 13, 2018 MNPs MM emails Town officials, “I would also recommend discussing this presentation with your legal counsel. As the Town has been sued by the condo owners and appears that QVEA is involved in other matters, would this disclosure affect your ability to defend the Town in litigation...” On March 23, 2018, there is an email from MNPs MM to CAO LD, saying, “Let me know whether your legal counsel has made any suggestions for the presentation at which time I will check our availability.” It is clear here, that MNP is explicitly protecting the political interests of the Town, and is not acting in an independent arms’ length manner.
The Town and MNP continue to collaborate about how to politically handle the public meeting. On April 13, 2018 there is an email from CAO LD to MNPs MM, NK, cc’d to JW, telling MNP that it “…will set the rules for the public engagement…I expect several people will try to monopolize the discussion. It is the Town expectations that you will manage the meeting and that Council will only be observers. Council will not respond to any questions.” This shows that Town officials expect MNP to front for them. The fact that elected officials on the Town council are not being allowed to participate in this public forum, which is about transparency and accountability about Town land sales, shows how the process was managed and accountability diverted. We have heard that the elected councillors were even told they couldn’t speak, which, if true, clearly undermines the direct accountability process that voters and ratepayers should rightly be able to expect in a democratic society.
On April 25, 2018, the day before the public meeting, there is an email from the CAO LD to MNPs MM, cc’d to JW, re “QVEA News Release”, saying “…the attached QVEA press release may be an indication of what you may expect. Thought you should be aware.” Very cozy, indeed. Note: Our press release simply laid out the four areas where we had found there were either errors of omission or commission in the MNP report. It was fully published in the May11, 2018 Fort Times.
Interview of Petitioners and QVEA: There are other emails between Town and MNP officials that show the political collaboration going on behind-the-scenes. The Town “Notes MNP” from the Jan. 25, 2018 meeting state that “They still need to determine if/when they will speak to the community group. Need to understand their motivation for the petition.” It is revealing that they are even considering not interviewing the petitioners and that “motivation” rather than fact finding seems uppermost in their mind set.
On Jan. 26, 2018 MNP’s MM does invite a representative of the petitioners (Ms. Hahn) and QVEA (Dr. Harding) to do an interview. MNP doesn’t come right out and admit they are researching the “motivation” of the petitioners. Rather MNPs representative says “We would like to know the areas of concerns, the areas you feel there may be evidence or persons who may have evidence that would support some of the concerns that you have.” It sounds like it should sound, that MNP is going to independently investigate these land sales and wants to get as much evidence as it can. Then, on Jan. 31, 2018 MNPs MM emails again, saying he needs to “…confirm that you and Mr. Harding are residents of Fort Qu’Appelle and that you are members of the group responsible for the petition to Fort Qu’Appelle. As can you understand (sic), this is a sensitive issue which we are investigating and I would be remiss (sic) to ask these questions to ensure that the appropriate persons attend this meeting.”
Perhaps this can be seen as ensuring the integrity of the investigative process. However, it was Ms. Hahn who delivered the petitions to the Town on Oct. 2, 2017 who was to be interviewed. And though the QVEA did not formally sponsor the petitions, it was the QVEA that initiated much of the research and it was at our meetings that these matters of land sales, and protecting the marshland being proposed for a marina, were fully discussed. We also created several public forums to increase transparency and accountability.
Furthermore, though only residents of the Town could sign the petition calling for an audit, everyone concerned about land use and watershed protection in the Qu’Appelle Valley is not a resident of Fort Qu’Appelle. Any attempt to narrow the net of information collection down to Fort Qu’Appelle residents was therefore questionable. The truth about conflict of interest or other matters does not have a residence.
The tone of MNP seems to shift further on Feb. 4, 2018, just before the interview with us, when MNPs MM emails us that “This is not a platform for complaint but a meeting to determine relevant information you wish to share with us.” He goes on, “Although engaged by the Town in this matter, we will not advocate for either side and our process is to determine the facts and the conditions which surround them.” Saying this is all well and good, but the question is whether MNP held to this promise and commitment. Certainly, the lengthy quote on page 37 of the final report gives Brian Janz a “platform”, which MNP doesn’t even attempt to factually deconstruct. And the question remains, if this was an unbiased endeavour, as MNP claimed, why did the final report not include any quotations from the transcripts of any other person who was interviewed?
The above analysis shows that regarding conflict of interest MNP did not follow through by drawing appropriate conclusions from their factual findings. After presenting themselves as overseeing a fully independent and neutral investigation, and in response to our question about accessing transcripts, MNPs MM makes it quite clear what the lines of authority are, saying, “Our reporting is to the Town of Fort Qu’Appelle and as such it is theirs to disclose as appropriate.”
After MNP interviewed the petitioners and QVEA, MNP stated, in its Feb. 12, 2018 Interim Report to the Town that, “The petitioners have done a good job at identifying the issues and the land sales under review.” At that time the critical Town lawyer’s letters of Dec. 3rd and Dec. 18, 2013, along with Janz’s contradictory and erroneous Dec. 17, 2013 letter, and the Minutes of the April 2, 2014 special meeting, were all still being withheld from us, so, the evidence about conflict of interest turned out to be even stronger than we had done “a good job at identifying” in our documents and presentation to MNP.
On March 19, 2018 there is an email from MNP’s MM to us, the QVEA, cc’d to CAO LD, JW, GD and NK, about “communications with QVEA”, which says “Our engagement with the petitioners… was in a fact finding capacity. We would request that any questions in regard to our engagement, reporting or presentation be directed to the Town for clarification.” This showed that in spite of their earlier claim, MNP was not willing to engage with us or the petitioners about “determining the facts and the conditions which surround them” in the fact-finding process. Having the Town, which was the focus of the audit, handle these clarifications of matters of fact would obviously undermine the reasons for the audit. MNP ended up ignoring or dismissing much relevant information pertaining to the land audit, which further flawed its conclusions.
Toxic Dumping Ignored by MNP: One aspect of the audit was to look at whether the disposal of the demolition rubble from the old Indian Hospital, at or by the old lagoon site, had followed environmental regulations. The QVEA did a good job at identifying the issue when we presented detailed information on this to MNP. While the Town had approval to use the rubble to fill in the actual lagoons, the April 2, 2014 side-deal between Abaco’s business partner Apex and the Town, allowed Apex and others to dump into the wider area as a means to create industrial lots. The QVEA had witnessed and documented that asphalt and other rubble was being dumped there and then covered over with soil. On March 1, 2018 we finally sent a letter to several provincial ministers, including Environment, and an Environmental Protection Order (EPO) requiring the Town to do a cleanup was issued on March 21, 2018.
As all these records were directly relevant to the mandate of the audit, we copied this detailed letter to MNP. Now we find, in the FOI files on the audit, that the same day, March 1, 2018, there was an email from MNPs MM to CAO LD and JW, saying “This was received today from (the QVEA). As we are working for the Town and not for the petitioners, we felt you should be aware of this document. We do not respond to petitioners in these matters as it may impede our independence.” Apparently, the close relationship with the Town did not impede MNP’s independence.
The objective thing for MNP to do would be to acknowledge that we had sent this additional, well documented, relevant information that was pertinent to the environmental aspect of the land audit. This was, in MNP’s own words, helping to “determine the facts and the conditions which surround them.” But, no, instead MNP communicates behind-the-scenes to be sure its client and partner, the Town is informed. What happened to MNP’s neutrality, as stated in its Feb. 4, 2018 email to us?
And, as it turned out, MNPs final report completely failed to acknowledge the records we had given them about the Town breaching these environmental regulations, which led to the EPO. And MNP concluded, in error, that the Town had followed all environmental rules (p. 8). As with the mishandling of the conflict of interest issue, this matter was also mishandled due to MNP’s not so hidden bias towards its client the Town.
No Due Diligence: MNP stated in its March 25, 2018 final report that “We reserve the right…to revise our comments in light of any information existing at the date of the report that subsequently becomes known to us.” (p.41). When we contacted MNP with our questions, regarding the information that was either missing or incomplete in its report, we were consistently told, as in the March 28, 2018 email to us from MNP MM, that we should “Please refer all your questions to the Town of Fort Qu’Appelle.” So much for “determining the facts and the conditions which surround them.” Meanwhile, we now know that the Town and MNP had prearranged to have the public meeting run by MNP, with elected officials remaining perfectly quiet, as they did. The Town, apparently with the cooperation of MNP, wanted to politically manage this audit in such a way that the substantive issues, including about conflict of interest, did not get a full factual public hearing. But this didn’t really work, for, as MNPs lead investigator admitted at the April 26, 2018 public meeting, “maybe” there was a conflict of interest.
So “No” didn’t really mean “No”. We think that a careful, independent assessment of the factual findings from this audit will show that “No” actually means “yes”; yes there was not only the appearance of a conflict of interest but an actual, consequential conflict of interest in the role of Abaco director and Town Councillor Brian Janz in the Town land sales to the Abaco business. We have summarized this in our cover letter.
We will therefore take this matter to the relevant provincial authorities, starting with the Ministry of Justice.
One: Information was kept from us on Oct. 24, 2017, after our original Access to Information Request to the Town, about Abaco director and Town Councillor, Brian Janz participating in the April 2, 2014 council meeting where the side-deal between the Town and Apex, who was doing demolition and disposal work for Abaco, was discussed. On April 2, 2014 CAO Kelly Schill informed Apex owner Cal Tulik that his proposed side-deal was approved, and he could proceed with the disposal work at the old lagoon. However, Town files, some found on April 9, 2018, after the MNP audit report was submitted, confirm that there was no motion moved, seconded or carried; this was not done until a later meeting. Though Janz was absent for the later discussion he participated in the actual April 2, 2014 discussion where the council agreed to accept the Apex side-deal. This would not only be a breach of conflict of interest rules, but by giving notice of approval, prior to actual ratification, it would also breach council’s requirement to follow due process.
Furthermore, the Town’s present CAO saying he won’t provide this information to us, without “a written release from Apex” and the approval of MNP, could be a breach of the Privacy Act. We were never given this information, we located it in Appendix Q, on p. 233, of the March 25, 2018 MNP audit report. There are other indications of unjustified control of information, e.g., when one of the petitioners requested a copy of the Engagement Agreement between the Town and MNP, on Jan. 23, 2018, the Town CAO consulted with MNP about what to do and says “I will not respond to the Privacy Commissioner’s Office until you respond.”
Two: MNP found out from Town records and interviews that Brian Janz did not declare his pecuniary interest until Dec. 21, 2013. This was long after he had brought his Abaco business associates to start discussions with the Town regarding purchasing the old Indian Hospital land. Janz did not declare his interest until several months after the Town agreed on Sept. 30, 2013 to sell this land (Lot V, with Lot Q thrown in), to the Abaco Group. This is the name used for all the Abaco corporations, including Abaco Energy Services, of which Brian Janz was a founding director since 2008. Janz gave contradictory and false information to MNP about this, first claiming he had actually disclosed his pecuniary interest before the Sept. 30, 2013 land sale to Abaco group, then claiming he had no connection to the Abaco Group, and therefore did not need to declare his interest.
MNPs interviews with the past mayor, past CAO and the one councillor still on council, who was a councillor when this occurred, all concur that Janz did not disclose his pecuniary interest until Dec. 21, 2013. And Janz admits that this was true (in spite of what he claimed in his Dec, 17, 2013 letter) in his March 6, 2018 MNP interview. In his Dec. 3, 2013 letter the Town’s lawyer exposes Janz’s claims. However, even with these solid factual findings, MNP gives credibility to one councillor, Jeff Brown, both a friend and colleague of Janz, who moved all motions to sell Abaco the land and who also moved the motion to accept the side-deal with Apex, which was doing work for Abaco. All Brown had was a recollection that Janz had recused himself, nothing more.
Three: The Town also withheld the Town lawyer’s letters about conflict of interest (Dec. 3 and 18, 2013) from us. Also, MNP does not include the Dec. 3, 2013 letter in its factual findings, even though this is where the failure of Janz to declare his pecuniary interest, and how this is a breach of the conflict of interest requirements under the Municipalities Act, and what the council should do about this, including calling for Janz to resign, are discussed in detail. Nor did MNP interview the Town lawyer nor get any legal counsel before it drew its conclusions that there was “No” conflict of interest. MNP clearly failed to follow its commitment in its Engagement Agreement to investigate “potential conflicts of interest involving Town Council”.
Four: Based on the factual findings contained in MNPs own report, including in the summary (pages 9-10) and on pages 35-40 of the body of the report, it is clearly shown that: i) Janz did not declare his pecuniary interest in the Abaco business association before the negotiations began; ii) Janz failed to do so until after the Town had sold some land to this business interest; and iii) Janz continued to participate in Town discussions that had a bearing on his business interest, even after he had declared his pecuniary interest. So, why did MNP not clearly say this and base its final conclusions on these factual findings? Why was MNP so predisposed to conclude that there was “No” conflict of interest? Did MNP’s close, constant collaboration with Town officials throughout the audit, and the Town’s ability to review MNP’s draft material, play any role in MNP’s apparent lack of objectivity?
Five: Through Freedom of Information we have access to several sets of records related to this matter, including: i) those from AgCan about the transferring of the PFRA Crown land to the Province, that Abaco tried to purchase; 2) WSA files on these negotiations; 3) Town records on their land sales to Abaco; and, 4) the records of the actual MNP audit done on these and other Town land sales. The FOI files from the audit are analyzed in detail above and clearly show that due diligence was not done regarding the investigation of the conflict of interest. If anything, they show that there was behind-the-scenes collaboration between Town officials and MNP as this audit was being done.
We note in particular the emails regarding whether or not to send the report to the Minister of Justice, how to manage public perception of MNP being independent and the Town not “tampering” with the findings, while continually giving the Town drafts to review before the final report is issued, and how the April 26, 2018 public meeting was prearranged and politically managed. The fact that MNP was to front this public meeting and that elected officials were not to speak or answer questions at this meeting, constitutes a clear breakdown of both transparency and accountability. It is at this meeting, when pressed by the local Fort Times reporter, that MNPs Mike McCormack admits “maybe” there was a conflict of interest, which itself shows the need for a fundamental review of how it mishandled its own findings.
Six: The FOI records show in detail how MNP mishandled this matter. Notes of early meetings with the Town and MNP suggest that even before they have started their investigation, they are ruling out a report that will go to the Ministry of Justice. Later, after what it calls its “revelations” about Brian Janz’s pecuniary interest, MNP seems more open to do a serious investigation. Yet, while Janz is listed as one of the main people to interview, from the start, MNP doesn’t interview him until the very end. It even asks for more money to do this, and to look at the sale of Block Y, even though these matters were mentioned in the original petition that led to this audit. It even gives the Town a way out, saying in its Feb. 14, 2018 Change Order if “…the Town…does not wish to proceed with aspects in this engagement, the Interim Report will be finalized…”
And, even after the belated interview of Janz, which they quote at length, while not quoting others who said and solidly documented the opposite of what Janz claims, MNP continually side-steps the implications of its own findings. When pressed, including by the Town’s own CAO, why it isn’t sending its report to Justice, it states, without any backing, that their findings did not pass the “threshold” or that the conflict of interest was not “definitive”. Meanwhile, it never considered or acknowledged the Town lawyer’s Dec. 3, 2013 letter, or sought legal counsel. It never interviewed the Town lawyer and never carefully looked in any depth at what the Municipalities Act actually stipulates about conflict of interest. When this is done it is clear that Brian janz had a conflict of interest.
Seven: MNP suppresses some vital information from its forensic audit. MNP never mentioned that it never located minutes approving one of the two land deals with Abaco. We were told, after our Access to Information request, that the Town could not locate any council minutes about the sale of Y to Abaco. We now wonder whether the fact that there were no such minutes is one reason why MNP didn’t realize that it had to audit Parcel Y, until the report was nearly completed. It then scrambled to include this matter, which involves floodway, etc. But MNP never discloses that there were no Town minutes for this sale.
It is possible that there was no official, legal approval of this sale. The minutes for only one August council meeting, on August 13, 2015, are listed on the Town’s webpage. And the minutes indicate that the next meeting will be Sept. 3, 2015. The Town had previously decided to “hold only one (1) council meeting in the months of July and August”. The August 13th minutes have nothing in them about the Town agreeing to sell Block Y to Abaco. That meeting, with Abaco director Brian Janz in attendance, did go into an in camera session from 6:30 to 7 pm, but the minutes give no indication what was discussed, which itself breaches the Municipal Act. Was the land sale of Y to Abaco discussed? If there was a Special Council meeting after August 13th and before August 28th, this should be documented and disclosed. The fact that there is an agreement, signed on August 28, 2015, but no record of a decision of the Town agreeing to make this sale, should have been a red light for MNP. It remains a red light for anyone who cares about the accountability and legality of the local government.
Also, the fact that MNP never received a copy of Abaco’s Jan. 9, 2013 proposal to purchase Parcel V and Q from the Town is significant. This proposal, according to the Town lawyer’s Dec. 18, 2013 letter, clearly indicated that Abaco Energy Services, of which Janz was a director from its start, was part of the Abaco Group, which would establish from the start that there was a pecuniary interest and a potential conflict of interest. But this is never admitted by MNP.
Furthermore, the April 2, 2014 meeting that Janz attended and which approved a side-deal with Abaco without a formal or legal process, and the total lack of minutes approving one of the Abaco land sales under review, showed the breakdown of municipal due process that occurred during these land deals, which MNP was obliged to highlight, but did not. The finding, alone, that one of the two Town land deals with Abaco was not documented in council meetings, would be reason enough for the audit report to be forwarded to provincial, oversight bodies.
1. Nov. 2007 – Federal old Indian Hospital land, Parcel V, is transferred to Town of Fort Qu’Appelle.
2. 2008 – Brian Janz becomes founding director of Abaco Energy Services (AES), the Canadian business within the “Abaco Group” based in North Dakota. (See lawyer’s Dec. 18. 2013 letter below)
3. Apr. 9, 2009 – Town minutes show that Parcel N is zoned as a residential subdivision. N is between Parcel V and Parcel Q, which has the road to Town drainage and to Echo Lodge on it.
4. *2010-11 Town consistently says that Parcel Q is not for sale: needed for drainage, access, etc. These files were withheld from QVEA by Town officials.5. Oct. 18, 2010 – Town asks $302,000 for Parcel V, from Pellaway Bay Resorts, in “as is” condition, which means the company would carry all demolition and disposal costs. This information withheld from QVEA by Town officials.
6. Oct. 2012 – Brian Janz elected to Fort Qu’Appelle Council: he does not declare any business interests.
7. Early 2013 – Janz arranges for his North Dakota business associates and friends in Abaco to meet with Town officials regarding purchase of old Indian Hospital land (Parcel V). By his own admission (see MNP March 6, 2018 interview) Janz agrees to work for Abaco on proposed project. He does not declare a pecuniary interest before negotiations begin.
8. **Sept. 9, 2013 - Abaco Group, which includes AES, of which Janz is a founding director, sends offer to purchase Parcel V and Q from Town for $1.00, while carrying demolition and disposal costs. This proposal has disappeared from Town files; it was never given to us as part of our Aug. 31, 2017 Access to Information request; MNP also says it was “unable to locate it” for its audit (see p. 4). It appears, according to Town lawyer’s Dec. 18, 2013 letter, that the Abaco letterhead on this proposal included Abaco Energy Services, as the Canadian company of the group, so there would be no ambiguity at all about Janz being involved in the Abaco business interest.
9. Sept. 30, 2013 – Town Council agrees to accept the Abaco offer: Janz does not declare his pecuniary interest but is absent for vote.
10. *Dec. 3, 2013 – After the land sale the Town lawyer documents that Brian Janz has a pecuniary interest in Abaco Energy Services, which is part of Abaco Group. He instructs council to consider “whether Mr. Janz had a pecuniary interest in respect to ABACO resolution and, if so, whether he breached the requirements of section 144 of the Act in relation to same”. This would require “Janz to tender his resignation” and the council to “vote upon a new resolution regarding the ABACO matter”. The letter says “Given the sensitivities of the matter, the remaining members of Council may wish to have these discussions in camera.” This letter was withheld from QVEA by Town officials.
11. Dec. 12, 2013 – Town council meets but remaining members do not go in camera without Janz to address the matter of Janz not declaring his pecuniary interest or the conflict of interest that resulted from this. Instead, at this meeting, Brian Janz moves motion 258/13, which is carried, to terminate CAO Darrell Webster’s employment on Dec. 13, 2013, and Kelly Schill becomes Acting CAO. Note: Darrell Webster later wins his case for wrongful dismissal, which cost the Town around $80,000. His dismissal was for using his Town credit card for small individual purchases, which he had reimbursed. The stakes were very small compared to the ones involved with the land deals with Abaco, but this matter likely did help to divert attention from the latter. Note: These minutes along with 26 motions passed by council are not posted on the Town’s web site; we finally received a copy in mid-December 2018.
12. *Dec. 17, 2013 – Brian Janz responds to lawyer’s Dec. 3, 2013 letter. He falsely claims that he declared his “…pecuniary interest prior to the special meeting held on Monday, September 30, 2013…”, but then goes on to claim that he didn’t have to “disclose that I was a director of AES, as Abaco Group was the company purchasing the property”. This letter was withheld from QVEA by Town officials.13. *Dec. 18, 2013 – Town lawyer writes another letter re conflict of interest, establishing that Abaco Energy Services is a company within the “Abaco Group” that “is not a corporation in its own right but rather refers to a group of associated corporations, eight of which are American corporations, as enumerated at the foot of Stacy Tschider’s offer letter of September 9, 2103 (2013 sic) and one of which is the Canadian corporation, Abaco Energy Services Ltd.” He states that “…the Canadian corporation, Abaco Energy Services, Ltd., in which the member (Janz) is a director, would be designated as the contracting party in this matter.” In this letter the Town lawyer clearly indicates that he does not accept Janz’s claim to have declared his pecuniary interest on September 30, 2013 or his contradictory claim that AES, of which he is a director, is not commercially associated with the Abaco Group. As such there was no reason for Janz not declaring his pecuniary interest. In the attached corporate profile from ISC, Stacy Tschider is listed as the President of AES, with a North Dakota mailing address. This corporate connection is all very clear; there is no ambiguity at all.
Yet the Town lawyer may have wanted to give the council a way to politically manage or perhaps side-step the obvious conflict of interest issue, by writing “Should the remaining members of Council accept that the pecuniary interest arising from the member’s directorship would only have arisen in early November 2013, when Abaco’s legal counsel designated Abaco Energy Services Ltd. as the contracting party, it may find that Mr. Janz’s December 17, 2013 letter acknowledging his directorship fulfills the disclosure requirements of the legislation.” This interpretation would, of course, be a huge stretch and go against what the Town lawyer had already established as fact. It would disregard everything that Janz had done, by not disclosing his pecuniary interest prior to negotiations, or before the first land sale, and then falsifying that he did, or continuing to falsely claim there was no business connection between Abaco Group and AES. It would go against what the Municipalities Act requires, regarding declaring a pecuniary interest and removing oneself from all related deliberations, as spelled out in the Town lawyer’s Dec. 3, 2013 letter. Regardless, there is no record that the council ever deliberated on these matters. This letter was withheld from QVEA by Town officials. Note: Later, Janz also attended the April 2, 2014 special council meeting that discussed matters pertaining explicitly to AES, which the MNP report also failed to highlight in its investigation. (See April 2, 2014 below).
14. Dec. 21, 2013 – Council goes in camera to discuss CAO “Darrell Webster and Abaco”. Brian Janz attends first part of meeting where he moves that his motion from Dec. 12, 2013 be rescinded, which is carried. He then declares his pecuniary interest in Abaco Energy Services and leaves the room. The remaining council then changed the name on the land sale agreement from Abaco Group to Abaco Energy Services. There is no record that the council ever discussed Janz’s previously undisclosed pecuniary interest or his breaches of conflict of interest regulations, as laid out in the Town lawyer’s two letters.
15. *April 2, 2014 – Town holds special meeting to discuss proposed side-deal with Apex, which is doing work for Abaco at old Indian Hospital. The proposal is that Apex dump the rubble from the demolition at, or by, the old lagoon and bring in additional soil to create industrial lots in exchange for 3 acres of land. As such, the Town could be seen as financially rewarding Apex for some of the work that it was doing for Abaco, which under the land sale agreement was to carry all demolition and disposal costs. Brian Janz attends. Though there is no motion presented nor any legal council approval given, CAO Kelly Schill informs Cal Tulik of Apex that his proposal has been approved and he can go ahead with the dumping which he apparently does. This side-deal is not approved until the April 10, 2014 meeting, which Janz does not attend. These Town records are withheld from us when we first make our Access to Information request to the Town, and even after the Town CAO locates further records confirming that this special council meeting occurred. (See April 9, 2018 below.)
16. August 7, 2014 – New Town CAO Kelly Schill writes Willow Court condo developer, Larry Schultz that “…the Town of Fort Qu’Appelle no longer owns that property located next to your lot…The Town sold …Parcel Q… in the fall of 2013.” She continues, “Please feel free to contact Brian (a local contact for ABACO) with concerns regarding placement of the driveway.” Note: This is Councillor Brian Janz that she is referring to; furthermore, this notification is given to the developer 11 months after Q had been sold to Abaco. Town files show that prior to this August 7, 2014 letter from the Town CAO that Schultz (Blacktty) had submitted a six-unit condo plan with access off of Q, which the Town had consistently said was not for sale. Later, due to errors in measurement, a 4-unit design was built without access off of Broadway St. The April 9, 2009, Town minutes show that this land (Block N, which was later subdivided into YY) was all rezoned as a residential subdivision.
17. March 12, 2015 – Town Council meeting; Brian Janz leaves meeting when council goes in camera. No reason for going in camera is recorded in minutes.
18. *May 11, 2015 – Abaco offers to buy shoreline Parcels W and Z from Province for its proposed marina along Echo Lake. This information was withheld from us until we found out about it in FOI files.
19. Aug. 13, 2015 – Only August council meeting listed on Town’s webpage. Brian Janz in attendance. No documented discussion of land sale of Parcel Y to Abaco. Council went in camera without given any reasons in minutes.
20. **Aug. 28, 2015 – Town sells Parcel Y to Abaco for $1.00. No council minutes for the meeting that approved this sale have ever been located or made public, including for the MNP audit.
21. Feb. 26, 2016 – Qu’Appelle Valley Environmental Association (QVEA) forms: immediately raises concerns about rumours of a big-boat marina being built in vulnerable marshland habitat and flood plain along shore of Echo Lake.
22. March 9, 2016 – Brian Janz finally files Public Disclosure Statement regarding his interest in Abaco Energy Services.
23. April 14, 2016 – Pasqua First Nation files claim on Parcels W and Z in both the federal and provincial courts.
24. Oct. 21, 2016 – QVEA hosts municipal election forum: Town land sales to Abaco dominate Q and A session. Brian Janz does not attend; Jeff Brown defends land deals with Abaco.
25. Oct. 26, 2016 – Brian Janz and Jeff Brown lose seats on Town council.
26. Nov. 3, 2016 – On behalf of Abaco, Apex blocks access to condos off previously public roads on Parcel V and Q that Abaco now owns; later it removes barriers on V to rear entrance to Blue Bill Bay Estates but leaves those on Q. Later Abaco permanently blocks access to four Willow Court condos.
27. *July 7, 2017 – Apex’s lawyer threatens defamation suit against QVEA. QVEA later writes Apex directly asking for factual information regarding actual demolition and disposal costs, but gets no response to this. Note: Apex later refused to give an interview or any factual information regarding demolition and disposal costs during the MNP audit. (See MNP report, p. 4).
28. Aug. 31, 2017 – QVEA release 45-page Public Interest Working Paper on its research to date about the proposed marina in the marshland and the land sales to Abaco. Many pertinent documents are still being withheld from the QVEA and the public at this time. (See Sept. 9, 2013, Dec. 3, 2013, Dec. 17, 2013, Dec. 18, 2013, April 2, 2014 and Aug. 28, 2015).
29. Aug. 31, 2017 – QVEA makes Access for Information Request for 33 Town documents: includes information regarding land sales of Parcel V, Q and Y to Abaco; public access, fair market value, environmental impacts at old lagoon and conflict of interest.
30. Oct. 2, 2017 – Ratepayer petitions are delivered to Town. One, with 743 names, calls for an audit of Town land sales, including to Abaco, since 2007. Another, with 619 signatures, calls for the Town to establish legal access on Parcel V and Q for condo residents and for Town drainage.
31. *Oct. 24, 2017 – Town officials respond to QVEA’s Aug. 31, 2017 request. Several vital records, including on conflict of interest (Sept. 9, 2013, Dec. 3, 2013, Dec. 17, 2013, Dec. 18, 2013, April 2, 2014 and Aug. 28, 2015) are later found to have been withheld.
32. Nov. 20, 2017 – Water Security Agency (WSA) “abandons its efforts to sell” Parcels W and Z to Abaco, primarily because this is mostly floodway land, as was all of Parcel Y and most of Parcel Q, which the Town had previously sold to Abaco. This information is withheld from us until we find out about it in FOI files.
33. Dec. 2017 – Town hires MNP to do audit: apparently this is the only business that responded to the call for tenders. Note: Audit costs grow from estimated $30,000 to final cost of $80,000.
34. Feb.-March 2018 – MNP does interviews: Feb. 6, 2018 – petitioners and QVEA present 16-page written brief with 7 appendices and provide hundreds of pages of documents to MNP. None of this information was quoted in MNP final report.
35. March 1, 2018 – QVEA sends letter to provincial authorities regarding toxic dumping at old lagoon site.
36. March 6, 2018 – MNP interviews Brian Janz. He states, in reference to Abaco, that “I’m gonna be their eyes, I’m gonna be their guy on the ground in Saskatchewan.” Yet he also says: “Did I declare that I had an interest? No.” He then claims that, regarding Abaco Group “I have zero to do with that, absolutely nothing to do with it”. Janz also says he had “zero shares of Abaco Energy Services”, but admits “I was a director”, which is all that is required for there to be a pecuniary interest. Janz explicitly contradicts what he claimed in his Dec. 17, 2013 letter, by admitting that it was when “a motion to rescind the motion to sell it to Abaco Group”, which occurred on Dec. 21, 2013, that “At that time I declared that I am the director…”
37. *March 21, 2018 – Environmental Protection Order (EPO) issued to Town of Fort Qu’Appelle regarding “…permitting the disposal of asphalt and other waste material…” by the old lagoon. Note: The QVEA had complained since 2016 that this dumping of contaminated soil had been occurring at this site ever since the dumping of the rubble from demolishing the old Indian Hospital had been approved in the Town’s 2014 side-deal with Apex. Many of the Town files pertaining to this matter of dumping at or by the old lagoon were withheld from QVEA by Town officials after our Access to Information Request. These were obtained through FOI.
38. March 25, 2018 – MNP issues final report. It concludes there was “No” conflict of interest (p. 9) or breach of environmental regulations (p. 8).
39. *April 9, 2018 – The Town CAO locates records confirming that the April 2, 2014 special meeting occurred, and that no motion was considered or approved, while saying that he will not share this information with the QVEA without “…a written release by Apex Enterprizes and your (MNP’s) approval”. The QVEA is not forwarded this information by the Town. Note: the continual withholding of this information is one thing, giving the company that benefitted from the side-deal a veto over the release of revealing special council minutes is an even more serious breach.
40. April 25, 2018 – QVEA issues press release outlining major errors of omission in MNP’s audit report, including its mishandling of the conflict of interest issue. This is published in full in May 11, 2018 Fort Times.
41. April 26, 2018 - MNP presents its findings at public meeting. FOI emails show that it has been prearranged by Town officials and MNP that elected officials will not engage in any discussion with ratepayers or answer any questions. MNP is to fully front the public meeting. After questioning from Fort Times reporter, lead-investigator Mike McCormack admits that “maybe” there was a conflict of interest. Petitioners and QVEA members also point out that pertinent information about toxic dumping at the old lagoon, costs of demolition and fair market value assessment, which was all provided to MNP, was not included in the final report.
42. June 25, 2018 - QVEA gets access to FOI Town files on MNP audit. It already had access to FOI files from AgCan, WSA and the Town regarding possible Crown land sales to Abaco.
43. July 11, 2018 – Town-sponsored referendum turns down creating legal access for condo owners who lost legal access to their properties off Parcel V and Q when this land was fully privatized, i.e. sold to Abaco. When promoting the “no” vote, Town officials stressed fiscal matters and notably failed to mention that prior to these land sales to Abaco, the Town had consistently said Parcel Q was not for sale. Town officials also did not point out that all public access to the marshland, on previously public roads on V, Q and the Trans-Canada Trail on Parcel Y, had now been privatized and was owned by Abaco. Note: The MNP report states that “MNP was not engaged to conduct a review of the development of properties…” (p. 40), yet it only paraphrases the views of Abaco director Brian Janz, but does not interview any of the condo owners or the developer Larry Schultz.
44. Jan. 4, 2019 – QVEA sends its document and appendices to Deputy Minister of Justice calling for a full review of MNP’s mishandling of Abaco director and Councillor Brian Janz’s conflict of interest. The document is copied to other agencies and officials that will have an interest in the Town withholding pertinent information, missing vital Town files, apparent behind-the-scenes collusion, and ongoing breaches of conflict of interest and other laws and bylaws.45. April 2019 – QVEA posts its findings at: QVEA.CA (see The March papers).
Note: * withheld files, ** missing files
But we need more than words. If we want to restore the health of the lakes we have to protect them from further assaults. This means stopping industrial and agricultural pollution and upstream water diversions, something we have been working on regarding Yancoal, Quill Lakes and the Line 3 bitumen pipeline that goes under the Qu’Appelle River.
But it also means taking care of the lakeshores, river banks and, most vital, the valley marshes that help to clean the water. We can no longer get away with pointing our fingers at others while we allow local interests and authorities to degrade the watershed right under our noses.
While the Town was displaying on its office door one of the Calling Lakes Ecomuseum (CLEM) posters about protecting wetlands, it was allowing contaminated soil to be dumped into the marshland by the old lagoon. As the valley’s environmental watchdog, the QVEA documented and reported the contamination. The Environmental Protection Order (EPO) issued by the province in March 2018 stated: “The Town of Fort Qu’Appelle is permitting the disposal of asphalt and other waste material that are generating leachate and contaminating the environment and potentially can make its way to the Qu’Appelle River and Mission Lake that will have a negative impact on the environment and human health.” It took 42 truckloads to remove the contaminated soil.
No matter who they are, valley polluters must be held accountable. Unfortunately, CLEM has never raised any questions about its partner, the Town, allowing the watershed to be treated with such disdain. Actions that are consistent with words are urgently needed.
We are blessed with the incredible marshland on the southeast shore of Echo Lake. This is where the Pelicans rest and feed, where the endangered Buffalo fish spawns. Where you’ll find the Ruddy Duck, the Leopard Frog and Wilson’s Phalarope and other creatures that increasingly depend upon protected marshland habitats.
This marshland is presently under grave threat. And we are asking you to join with us to get this vast area, from the old PFRA dam all the way to B-Say-Tah, protected as a Marsh Interpretive Centre. This will be a challenge but it is a challenge we must now face.
Some valley residents haven’t yet realized what has happened to this marsh area. Between 2013 and 2015 marshland zoned as floodway was given to Abaco, a U.S. energy company in North Dakota, on the pretense that they would build a big-boat marina. Parcel Q, which is mostly floodway, was thrown into the land sale of Parcel V, where the old Indian Hospital was, for $1.00. Later, Parcel Y, which is all floodway, was also given to Abaco for another $1.00.
The marina was a sham. Floodway land should not be commercially developed; it should be protected as green space. The past Town council knew this, as Parcel Y was already zoned “green space” under its own Official Community Plan. But they gave it away anyway. And Parcel Q, which is mostly floodway, was never to be sold, according to the Town’s own records, because it was needed for drainage and for Echo Lodge. But they gave it away anyway. What an environmental mess.
This local floodway is now not only owned by a U.S. energy company but all access to the marsh is also controlled by Abaco. Residents who must use the roads that were privatized must have Abaco’s approval. If Abaco decides to block access, as it did with Willow Court residents, it can do so. The Trans-Canada Trail that goes through the marsh is now on Abaco land. So is the Lions’ Club public observation deck. This giveaway is outrageous.
The road that has existed since the 1930s, between where the old Indian Hospital and Nurses Residence existed, where Blue Bill Bay Estates now is, which goes down to the marshland and shoreline, has been totally privatized. For centuries this has been a traditional Indigenous route to the marsh and lakeshore.
Privatizing this public access is likely the most irresponsible action ever taken by a local council. What would we think if we heard that another Town had sold out its marshland and all access to it to a U.S. company?
What will others think about Fort Qu’Appelle when they find out what has happened here? How do you pretend that you care about the valley environment when you allow this to happen? Will people want to relocate to an area with such apparent disregard for its local environment?
This is nothing short of feudal. Remember that popular democratic movements fought long and hard to gain access to lakes and rivers that were controlled by feudal landlords. We can’t allow the clock to be turned back and to lose public access to such natural splendour.
And all this was done without any development proposals from Abaco. After five years there is still no marina proposal in the Town office. This whole thing has been a sham from the start. It is time for people in the community who care about the lakes and water to clean up this mess.
Floodway is not to be commercially developed. A marina is totally impractical in this environment, with the unpredictability of the water level and so much of the marshland far away from open water. A marina here would be ecologically destructive.
Thankfully the province realized this and in Nov. 2017 it rightly refused to sell Abaco shoreline Crown land (Parcels W and Z), which was also in the floodway and will be protected as an Environmental Reserve. The province held its ground in spite of backroom lobbying from Town Officials and Abaco. Freedom of Information (FOI) files confirm the attempt to have an Inside Deal when this Crown land was transferred to the province by the Harper government. A court challenge from Pasqua First Nation over the failure to follow Duty to Consult helped protect this marshland.
Now we must take action to permanently protect the marshland. An Interpretive Centre is a no-brainer. This will protect the marshland and ensure continued public access to this beautiful natural area. It will become a huge draw to Fort Qu’Appelle, bringing visitors and tourists here. It will make Fort Qu’Appelle a day-trip destination from Regina. It will bring students here for environmental education. It will strengthen the Farmers’ Market. It will become a vibrant gathering point for residents and visitors alike.
Marsh Interpretive Centres have been huge successes. The Oak Hammock Centre outside Winnipeg attracts thousands, including for hiking, biking and environmental education. The McKell housing sub-division adjacent to marshland in Regina shows what can be done with a little bit of environmentally-responsible imagination. A housing development with walkways into the Fort Qu’Appelle marshland will become possible when the land by the old Indian Hospital (Parcel V) gets into the hands of responsible developers. This would have a profoundly positive impact on the local economy.
Fort Qu’Appelle’s future depends upon good environmental stewardship. Past councils have made huge mistakes. Giving all this marshland to Abaco and privatizing all access to this beautiful lakeshore habitat area was unconscionable. This was a huge assault on the public interest.
Now we must take action to make this right, to take back the marsh. We are working to create a collaborative project, with support from First Nations, the Trans-Canada Trail, the Saskatchewan Wildlife Federation and other groups that want the marsh to be returned into public hands. We trust that the Town will also step up and support this new, positive and responsible direction.
PHOTO: Echo Lake
WHEREAS the marsh in Fort Qu’Appelle, which includes the area by the PFRA dam, Blue Bill Bay and extends to the Village of B-Say-Tah, along with the Evans, Lebret, Skinner and other marshes, are among the few remaining in the Calling Lakes area; and,
WHEREAS these marshes provides ecological services such as filtering and cleaning water which are essential for recreation, human health and fish, waterfowl and other wildlife habitat sustainability; and,
WHEREAS the Qu’Appelle Basin Study Board (1972) recommended that all these marshes be protected as “wildlife management areas”, and in 2015, as part of its Official Community Plan (OCP), Fort Qu’Appelle zoned its marsh area as an “environmentally-sensitive floodway” and,
WHEREAS in the Province’s “Statement of Interest” regarding the Planning and Development Act, 2007, it states it will “Minimize, mitigate or avoid development impacts to safeguard the ecological integrity of wetlands, riparian areas, significant natural landscapes and regional features, and provincially-designated lands”, and,
WHEREAS the Province through its Water Security Agency (WSA) should maintain and protect these marsh areas as part of the Qu’Appelle Valley Flood Hazard/Risk Area, and, as such, should retain or purchase these marsh lands; and, finally,
WHEREAS resilient and lush marshlands, lakefronts and river banks are crucial to the development of a vibrant local eco-tourist economy;
1) These entire marsh areas be fully protected and not used for any ventures that will compromise their integrity and sustainability; and further that,
2) The Fort Qu’Appelle marsh area not be approved for a marina as this will bring negative impacts from activities such as motor and jet-boat traffic and likely dredging in this vulnerable fish and bird habitat and “nature walk” area; and further that,
3) There must be full public disclosure and thorough local and regional public consultation, including a full environmental assessment, about any proposals that could jeopardize any of these valuable marshes; and, further that,
4) The province should quickly develop and act upon policy which makes it a priority to protect and restore the remaining marsh areas in the Qu’Appelle Valley for present and future generations.
NOTE: This policy was discussed and amended at the April 13, 2016 public meeting, discussed and amended at the April 27, 2016 Marsh Protection Working Group and brought to the May 11, 2016 QVEA meeting for final approval. It will stand as QVEA marsh policy until our first AGM.
PHOTO: Echo Lake
The QVEA does research, education and advocacy to protect and restore the Qu’Appelle watershed. We distribute leaflets, hold public forums and present to policy-making bodies. If water quality is to be improved in our lakes, all of us must become better stewards. If protected, creek-beds, riverbanks, shorelines, flood plains and marshes will provide “environmental services” which preserve habitats and humans alike.
We can’t just point fingers at Regina’s sewage dumping, though this must permanently end. We must also stop toxic agricultural run-off and drainage from contaminating the watershed. And land use planning in the valley must also change. We have serious challenges.
A few still try to justify the Town selling 17 acres of lakeside land to North Dakota’s Abaco Energy Services for $2.00. This, they claim, saved the ratepayer’s the estimated $500,000 it would cost to demolish, haul and rough grade/landscape the old Indian Hospital site. But who made the estimate and how much did it actually cost Abaco? These figures must be made public.
Then the Town agreed to transfer 3 acres of land to Apex for hauling rubble, capping and levelling the flood plain and marsh area by the old lagoon. But did this include rubble from the old Indian Hospital? And if so, did this reduce costs to Abaco. This must also be publicly known.You can’t claim that the ratepayer saved money by these land giveaways and not provide the actual figures.
Nor is it a good thing that past Town councillor Brian Janz was an Abaco director since 2008 and didn’t declare a conflict of interest until after all the land deals were done.
And why did the previous Town council not create easements prior to selling this land? Abaco got land with infrastructure (drainage, sewer and water) and roadways into Willow Court, Echo Lodge and also to the back entrance to Blue Bill Bay estates. For eleven months, Willow Court residents were blocked from their homes by cement barriers installed by Abaco. And now Abaco has installed a chain-link fence that blocks these residents from their homes. This is unacceptable in a community that says it looks after its neigbours.
This land was sold without transparency – no public consultation at all. The adjoining crown land, which used to belong to PFRA, went directly from the Water Security Agency (WSA) to Abaco without fulfilling the duty to consult and now Pasqua First Nation is in the courts about this. There was much provincial deception along the way.
QVEA’s initial concern was that this land was rezoned and sold for a marina without any environmental assessment. You simply can’t put a marina in a vulnerable marsh, at the mouth of a river, where sandbars are always building up. Any construction would devastate this habitat. We have been encouraging the Town to create a marsh walkway with observation sites, which would be a tourist attraction. There is already a section of the Trans-Canada Trail there to build upon.
So far, the Town of Fort Qu’Appelle hasn’t shown it cares about protecting the watershed. After its lagoon was moved out of the valley, the Town allowed dumping in the very flood plain and marsh area that needed protection. QVEA even witnessed and reported the dumping of toxic asphalt.In the rush to sell land for a marina in an inappropriate location, the Town sold out the rights of local residents. The whole mess is quite disturbing. We know Abaco did not meet the prescribed timeline for demolition. And the present mayor, Jerry Whiting, has informed the QVEA that the minutes where the council sold Abaco Block Y, “are not available”.
It gets worse. We were told that an easement protected the Trans-Canada Trail into the marsh area. Yet we now find that the observation structure where the trail starts below Hudson Manor is part of the land (Block Y) sold to Abaco. As such, we have been told, the Lions Club, which built the now dilapidated structure, will not rebuild it.
Talk about shooting ourselves in our feet. Residents lose access to their homes. The Town sells access to its infrastructure. Residents lose access to the beautiful marsh. Real costs of demolition are not disclosed. Deals are made that seem like double billing. There is no fair market value appraisal. Some Town records disappear.
The QVEA is concerned about collusion, conflict of interest, and what seems to be a breakdown in local government. The 2016 municipal election sent a message that none of this is okay. The new mayor and council must not walk away from these serious matters.
On August 9th fifty-five people turned out to the QVEA monthly meeting to discuss these matters. On August 17, 2017 the QVEA took these concerns directly to the Town council.
In mid-October two Concerned Citizen petitions were presented to the Town of Fort Qu’Appelle. One called for the condo residents to be restored legal access to their homes. The other called for a full audit of these land deals. Both are necessary to get our community back on track and start to look out for the valley environment.
Lorna Evans, Jim Harding and Randy Lebell for QVEA.
NOTE: This was printed as a Letter to the Editor in the July 28, 2017 Fort Times.
The Qu’Appelle (Calling Lakes) Watershed is the most stressed and most at risk in all Saskatchewan. And we are already facing the challenges of extreme weather from Climate Change.Of course, we should change unecological personal practices: e.g. stop using pesticides along the shoreline; ensure that our septic systems aren’t polluting the lakes, as CLEM says in its recent leaflet. We can all agree on that.
While we all care about what is happening to the lakes, let’s not delude ourselves with magical thinking. White bumpers instead of black tires on boat docks will not keep “the temperature of our lakes” from rising from Climate Change. This will not reduce “blue-green algae”. Nor will more and more boats on the lakes, even if they have 4-cycle engines, which still exhaust into the water, be good for the long-term water quality.
The watershed’s health is threatened by long-term urban sewage releases, endless run-off from chemical agriculture, widespread drainage of wetlands, upstream industrialization of water (e.g. Yancoal), oil pipelines, and environmentally-irresponsible land use practices throughout the valley. Stewardship to achieve sustainability will require an Action Plan to make major changes in federal, provincial and local level policies and practices. Energy and agricultural policies for sure must change.
And we can’t keep our heads in the sand; no amount of magical thinking or environmental rhetoric is going to protect the water.
CLEM says, as an EcoMuseum it is committed to preserve “valued ecological sites”. We all know that the Fort Qu’Appelle marshland on the southeast shore of Echo Lake is a valued ecological site. For centuries there has been a traditional indigenous trail to the lake. Many valley residents have used it to access the marsh area. However, in 2013-15 the Town gave away floodway land in this beloved marsh to Abaco Energy of North Dakota for a big-boat marina. The 7 acres of floodway in Parcel Y was “sold” for $1.00; the 3 acres in Parcel Q, which is mostly floodway, was never supposed to be sold. This land was to be protected as green space; it was not to be commercially developed. The Town also privatized the roads and even the Trans- Canada Trail into the marshland.
Pasqua First Nation went to court over Duty to Consult to stop the province selling Crown land to Abaco and the QVEA also lobbied hard to oppose this sale of floodway marshland. And we won; this area will now be protected as an Environmental Reserve.
But we haven’t heard a peep from CLEM about any of this. Why not? Does CLEM have a position on a big-boat marina in this valued marshland? Will CLEM members come out in support of a Marsh Interpretive Centre to protect this “valued ecological site”
CLEM has branded much of main street Fort Qu’Appelle with its big signs and the names of private donors. The Town office has an imposing CLEM sign about protecting the lakes on its door. Meanwhile, since the demolition of the old Indian Hospital in 2015, the Town has allowed the dumping of contaminated soil in the marsh by the old lagoon.This illegal dumping presents a serious threat to downstream water. After the QVEA documented and reported the toxic dumping since 2016, the Ministry of Environment (MOE) finally issued a stern Environmental Protection Order in March 2018. The EPO stated, “The Town of Fort Qu’Appelle is permitting the disposal of asphalt and other waste material that are generating leachate and contaminating the environment and potentially can make its way to the Qu’Appelle River and Mission Lake that will have a negative impact on the environment and human health.” As part of the cleanup the Town had to remove 42 truckloads of contaminated soil at the taxpayer’s expense.
Several local governments have mailed out CLEM leaflets at taxpayers’ expense (see below). And the Town and Calling Lakes District Planning Commission or CLDPC are CLEM’s “partners”. CLEM has even asked the Town for money for an extravagant “water celebration”.
Is this why there has not been a word from CLEM about the Town allowing this toxic dumping? Does CLEM perhaps have a conflict of interest. Of course, it does!
Fuzzy thinking isn’t helpful. And MacPherson’s “best and brightest” include “our local MLA Don McMorris and MP Andrew Scheer”, who both lobbied hard to get Abaco the marshland (see above) and can hardly be considered watershed protectors. We can’t avoid the hard, scientific questions about climate change and the role of our toxic extraction economy in this. We can’t make the dangerously-high, 400 plus ppm of CO2 in the atmosphere, disappear from our minds.
The steady buildup of carbon in the atmosphere and oceans from burning fossil fuels is not only a threat to the climate but the fossil fuel industry poses a serious threat to watersheds everywhere. We have already had a serious pipeline spill into the North Saskatchewan River from Husky Oil in July 2016. James Smith and Cumberland House Cree Nations have gone to court for compensation. Enbridge’s Line 3 bitumen pipeline, from Alberta’s tar-sands to Manitoba and then to the U.S., goes through our watershed and right under the Qu’Appelle River. Why haven’t we heard anything from CLEM about this?
The climate crisis and water crisis are one and the same. And we need to get our heads out of the sand soon, if we are going to win effective changes that will protect this watershed. Environmental rhetoric and cozying up to local polluters is not going to help us meet our environmental challenges.
More people need to become better informed and more involved to help protect our lakes. We can no longer just point our fingers elsewhere, while ignoring the irresponsible action occurring right under our noses.
For sure, we should plant trees on our lakeshore lots. But let’s not delude ourselves that this will address the extreme flooding or threat to water quality from Climate Change. A Shelter Belt and No-Spray Buffer Zone along the whole Valley wall and reinstating a provincial authority like the Qu’Appelle Valley Implementation Board (QVIB), abolished by the Conservatives in the 1980s, however, could make a difference.
Will CLEM ever speak up about these vital matters? We welcome open dialogue with CLEM about these challenges.
QVEA’s Position on the CanPacific Albany Potash Mine in Sedley, Saskatchewan
1. Unsustainable Demand for Water:
This mine is projected to require over 17 million cubic metres (mcm) of water a year, which would make it the second biggest water using solution mine in SK, after the Mosaic mine at Kronau, which will require 21 mcm of water a year, what the whole city of Regina uses. With the other eight solution mines already operating and/or approved or nearly approved, the total additional use of water is projected to be around 90 mcm of water a year. This is not sustainable.
2. Already Facing Water Crisis:
Without these additional, huge drains on our waterways, parts of the SK prairies are already in the extreme water crisis zone recently mapped out by the World Resources Institute. Some prairie areas already use the vast majority (80%) of the water which flows through their part of the Alberta-SK-Manitoba basin and are in the same category as parts of the Middle East, Sub-Sahara, Australia and SE USA.
3. Prairie Biodiversity in Decline:
Prairie and freshwater eco-systems, along with marine ones, are already losing biodiversity at the greatest rate of any eco-systems on the planet. The CanPacific Albany mine will threaten the ecological integrity of another 6,000 hectares of native grasses and wetlands. Wetland destruction, mostly arising from the unregulated drainage practices of agribusiness, is already at crisis levels on the prairies and wetland restoration has to become one of our overriding climate policy objectives. The unprecedented use of toxic chemicals in agribusiness is also a direct threat to both water quality, habitat health and several species at risk. Unlike some “naturalist groups”, we do not support simply moving the Albany mine site or any other proposed solution mine to another location, as this fails to address the overriding water crisis. No version of NIMBYism is going to get us onto a sustainable path.
4. We Must Protect Aquifers:
Loss of wetlands combined with the permanent removal of such gigantic amounts of surface water for industrial resource extraction will escalate the water crisis, including undermining the capacity of aquifers to recharge, which can take a century. The added fact that waste water from solution mining may be injected underground just adds further threats to future aquifer water quality. Fracking is already a serious threat to water quality and is linked to the increased frequency of earthquakes. The underground, where water flows in ways that we still do not understand, cannot become the new “out of sight, out of mind” industrial waste repository.
5. Uncertain Lake Diefenbaker Supply:
With the certainty of future extreme weather cycles, of flooding and drought, exacerbated by global warming and the resulting climate crisis, the supply of water into Lake Diefenbaker will become much more uneven and uncertain. The climate crisis will continue to impact water quantity and quality in the whole prairie region; e.g. Quill Lakes flooding can also be traced to extreme precipitation, aggravated by unregulated drainage. Also, glaciers in the Rockies are quickly disappearing and precipitation and spring runoff from Alberta is becoming more erratic. Constructing a channel to increase the flow from Lake Diefenbaker into Buffalo Pound simply cannot ensure that there will be all the surface water available for these industrial purposes, while also having to meet growing urban domestic water demands.
6. Downstream Habitats and Treaty Rights at Risk:
Also, the permanent removal of this water from the watershed will inevitably further degrade the fish, insect, plant and bird habitats within the downstream watershed. This all undermines Treaty and Indigenous Water Rights. Loss of habitat and degraded water quality are already at a crisis point within some parts of the Qu’Appelle Watershed. Pasqua Lake, one of the most polluted lakes in Canada, has become a nutrient-algae sink and downstream lakes such as Echo Lake are quickly deteriorating.
7. Industrial Cost Saving:
Treating each proposed, potash mine separately avoids the most critical issues of biodiversity, water quality and quantity, and the climate crisis. There has to be a change from the business as usual and “jobs at any cost” paradigm that perpetuates toxic and high carbon resource extraction and keeps us dependent upon such a vulnerable export economy. All these solution mines are following the new corporate credo of replacing labour with technology. They are using and wasting cheap and scarce water to replace more costly construction methods and to replace underground mine workers. This brings into serious question the political ideology which tries to sell these mega-projects as a means to local and provincial prosperity. The accumulating costs, especially costs to future wellbeing and environmental health, are already outweighing the short-term and unfairly distributed benefits. We are undermining the environmental conditions of life for our children and grandchildren.
8. Need Sustainable Food Production:
As the UN Climate Panel said recently, land use for food production will have to change to reduce climate change impacts and the water crisis, including on the prairies. The high carbon-methane footprint of feedlot cattle, and high-carbon inputs of grain growing to support this, will have to give way to more free-range cattle that can help preserve native grasslands and wetlands. Diet will also have to shift to more plant protein as part of an overall water protection strategy.
9. Our Emissions Highest:
Global warming from increasing carbon in the atmosphere and oceans is at the root of the water crisis and we therefore have to quickly move towards a low carbon energy sector and economy not primarily based on fossil fuels. The global crisis from plastic contamination, also from hydro-carbons, is one serious dimension of this overall global ecological crisis. While the rest of Canada has been lowering its carbon equivalent emissions since international climate agreements started, the emissions from SK and Alberta have continued to increase. In 2005, these emissions totaled 299 Mega-tonnes, which was 132 Mt less than the rest of Canada (431 Mt). By 2017, Alberta and SK, combined, emitted 351 Mt, almost the same as the rest of Canada (down to 365 Mt). Our increasing emissions are directly tied to oil and gas, and especially tar sands extraction, and do not include the enormous emissions that will occur when these fossil fuels are burned elsewhere. The reactionary political blowback to carbon pricing just further detracts us from the need for transformational change. The politics of denial and delusion is not ecologically sustainable.
10. Environmental Assessments Suspect:
The QVEA did not submit a Brief to the Province for this specific CanPacific Albany mine. We have done this before, such as for the Yancoal solution mine near Southey, which will use nearly 13 mcm of water a year, and the Broadview Golden Fortune solution mine, which would use another 4 mcm of water annually. But, strangely, we have been told that the cumulative impacts of all the proposed mines, including impacts on other land use, aquifers, and downstream water quality and habitat health, is outside their Terms of Reference. Also, with the Qu’Appelle Watershed and the Calling Lakes no longer listed under the Navigable Waters Act, and the expanding industrialization of water under sketchy provincial oversight, these assessments are pretty much a fait accompli. Based on our experiences researching hitherto secret files about local land sales and land uses in the Qu’Appelle Valley (e.g. Fort Qu’Appelle’s marsh and floodway land deals with Abaco Energy) we do not have much confidence in the Province’s environmental assessment process.
By Jim Harding, Ph.D.
On January 28, 2016 nearly 250 people filled Earl Grey’s community hall to hear about Yancoal’s “Southey Project”. Because of the scale of the potash mine, people came from the surrounding farming area and also from upstream and downstream, travelling from Regina, Lumsden and Fort Qu’Appelle.Yancoal is a Chinese state corporation with a global reach; part of China’s attempt to lock-down control over strategic resources. Yancoal now has direct control over Australian coal and with nearly 50% of the global supply of potash Saskatchewan is on its short list.
The Sask Party government is very supportive of China’s resource-control plan. Short-term potash revenue, which is often exaggerated, is trumping long-term water security. This is poor judgment for, to move towards sustainability, water must become our new bottom line.
Yancoal claims it can’t extract potash in the Southey area using underground mining; the potash is too deep; below 1200 metres. But underground mining is also very expensive. So Yancoal wants to do much cheaper solution mining, using millions of cubic metres (Mm3) of clean water to flush the potash above ground.
This would consume and contaminate massive amounts of surface water. It would also leave a huge waste stream of toxic salts which will further contaminate our already vulnerable prairie land. The mine would also bring huge amounts of traffic-related pollution, both road and rail, to the area. The co-existence of healthy agriculture, land conservation and solution mining is unrealistic. The plan is to pump toxic waste water into the earth below the Hatfield Aquifer, taking it permanently out of the renewable water cycle, which would reduce the flow in the Qu’Appelle Watershed. Leaching into the aquifer through some of the inevitably faulty well pads would also remain a great risk, and land above the underground drilling could sink.
Yancoal’s proposed mine is also upstream from the already vulnerable Qu’Appelle Valley. The mining will occur just a few miles from Loon Creek, which drains into Pasqua Lake, already degraded from decades of Regina’s sewage and agricultural runoff. Saline water can permanently destroy fish habitat.
The province plans to provide these huge amounts of water from Buffalo Pound, which also supplies Regina and Moose Jaw. Sask Water is proposing three possible pipeline routes. Mosaic’s Belle Plain solution mine already draws water and the planned K and S mine near Bethune will also draw water from Buffalo Pound. Further solution mines within the Qu’Appelle Watershed are also in the works.Using Yancoal’s figure of 1,450 cubic metres an hour, water consumption could be 13 million cubic metres (Mm3) a year. Using estimates from the previously proposed Vale mine, it could be 21 Mm3. Either way the amount is huge: from one-half to nearly 100% of what Regina presently uses (23 Mm3).
This would supposedly come from increasing the flow from Lake Diefenbaker. However, the flow into Lake Diefenbaker has been steadily declining for a hundred years. And this decline will accelerate with the continual melting of the mountain glaciers from climate change.
Furthermore, prairie temperature increases, perhaps by as much as 4 degrees Celsius, will accelerate evaporation and further degrade water quality. Buffalo Pound is already showing this trend.Finally, even without the added burden of climate change or increased industrial demand for water, there have been reoccurring, long periods of drought and critical shortages of water within the Qu’Appelle Watershed. This will most certainly continue to happen.
You can’t have a decreased source of water and long periods of greatly reduced flow and water quality, compounded by climate change, and expect to have a secure supply for ever-greater amounts in the future. Something will have to give.
On its website Yancoal asks “what will happen in a water crisis?” and answers “Priority will be given to residents and farms over industry.” Meanwhile, Sask Party policy, expressed by the Minister of Environment to the Calling Lakes Planning Commission in 2013, is that “licensed users will be accorded first priority to water”. There is an urgent need for some solid, binding water protection policy in the province.
And we don’t even need to imagine such water shortages. In May, 2015 Regina lost 50% of its water supply from Buffalo Pound due to unprecedented massive algae blooms (called diatoms). More water had to be released from Lake Diefenbaker to flush the algae downstream. What would have happened if huge water pipelines to Yancoal and the other solution mines were also pumping? And what if there were no flow into Lake Diefenbaker at the time?
The Sask Party government is expanding the industrialization of water without even having a reliable canal from Lake Diefenbaker to Buffalo Pound. With its large provincial debt ($14 billion and growing) it is not likely to be financing such a mega-project. The cart is clearly before the horse when it comes to industrial water use policy in the Qu’Appelle Watershed.
Yancoal and the other solution mines would put gargantuan demands on our vulnerable watershed. Though the government probably doesn’t want to say it, the back-up strategy is probably to take water from the Hatfield Aquifer. (They’ve rejected taking water from the overflowing Quill Lakes.)
A similar scenario is already happening in China where industry not only pollutes scarce farmland and vulnerable habitat, but has reduced many waterways to a trickle and is depleting aquifers in some areas.
China’s Yancoal isn’t here just for the potash; it’s also here for our water. Water is already a world-wide “strategic resource” and it shouldn’t be squandered for short-term political gain.
If Premier Wall can stop Australia’s BHP Billiton from buying out U.S.-based Potash Corp because potash is deemed a strategic resource, then why aren’t we protecting water? Water needs to be treated as a human right, not an industrial commodity. It’s clearly time to stand up for the future.
Updated June 2016
Major concerns about Yancoal potash solution mine proposed near Southey, adopted in principle at May 11, 2016 QVEA meeting.
Submitted June 6, 2016 to Sask Environment by Lorna Evans, Jim Harding and Randy Lebell on behalf of the QVEA.
Yancoal’s Environmental Impact Statement (EIS) was only released on April 23, 2016, yet Yancoal tells us in its April 17th letter that “the public comments deadline will be May 24th”. Meanwhile it took the Saskatchewan Environmental Assessment Review Board two years to do its technical assessment.
The freeze on the process until after the April 4, 2016 provincial election contributed to the suppressing of these vital issues from public scrutiny. The extension of 15 days to June 6th remains a slap in the face of Saskatchewan’s democracy, especially for area farmers during high seeding time.
We know that “politics” and “economics” enter environmental assessment, mostly through narrow terms of reference and errors of omission. The big picture and the future typically don’t get sufficient attention. It is unacceptable for the broader public to only be given 45 days to consider the wider and long-term public interest.
QVEA Position #1:
Yancoal’s Southey Project should immediately be taken off the fast-track to allow public due diligence to prevail.
The Yancoal mine could create as much as 1.09 million tonnes of C02 equivalents per year. This would increase, not decrease Saskatchewan’s already high carbon footprint. Yet Yancoal has not looked at the potential of using any renewable energy and it even rejected co-generation (power from waste heat). This business-as-usual approach will not help Saskatchewan reorient its economy towards sustainability. The Yancoal project will not help Saskatchewan assist the country to cut its emissions by 30% below the 2005 level by 2030.
Yancoal wants to use gargantuan amounts of surface water to bring the potash above ground for processing; this solution mining will reduce Yancoal’s costs while externalizing huge costs to the environment and watershed. Yancoal admits that the benefits of solution mining include “lower up-front capital costs and no underground workforce.” This shows how, while costs are being externalized, benefits such as jobs are being greatly reduced.
Yancoal expressed an interest in a pipeline to Quill Lakes, perhaps to be supplemented by water from Last Mountain Lake. The Water Security Agency (WSA) and Sask Water prefer a costly pipeline from Buffalo Pound, possibly because they can better control the supply coming from Lake Diefenbaker.
Either way this is a totally unacceptable use and waste of fresh water. Yancoal’s figures suggest it will use 13 million cubic metres a year, 50% of the water used by Regina; it could be larger. Year in and year out for up to 100 years all this water would be permanently lost from the natural cycle. We must start to truly value and protect water; with the coming water crisis we can’t be removing fresh water from the hydrological cycle.
Furthermore, Buffalo Pound and Last Mountain Lake are both fed by Lake Diefenbaker, which provides domestic water to more than half of Saskatchewan’s residents. The amount of water in the South Saskatchewan River which, since the mid-60s, flows into Lake Diefenbaker has been markedly decreasing for a century and this decrease will accelerate with climate change. Recent summer flow levels have measured 86% below those recorded in 1910. Both water quantity and quality will be at even greater risk. When surface water becomes scarcer, as it surely will, Yancoal and other companies could end up using water from and risking contaminating the Hatfield Aquifer on which many communities already depend.
A 2012 report already projected a 200% increase in water taken from the Qu’Appelle watershed by 2060. And this calculation was made before the Yancoal project or some other solution mines were even proposed. We see no credible provincial strategy behind the steady, incremental industrialization of water that will ensure that future water sources are protected and secure. The Water Security Authority (WSA) modeling and forecasting doesn’t even take climate change into account. There hasn’t been a study of the cumulative impact of Yancoal using the massive projected volume of water over 100 years. Would the amount of water being extracted violate inter-provincial water-sharing agreements? There is simply too much uncertainty about future water supply or the impacts on other water users for this project to be approved.
Sustainability is about inter-generational justice; not undermining the ability of future generations to meet their needs. The incremental approach of the Sask Party government puts future generations at risk. It would therefore be foolish to approve the prolonged use and waste of such valuable water for the Yancoal mine.
QVEA Position #2:
Until a credible sustainable water strategy which takes climate change into account is developed there should be a moratorium on all mega-water industrial projects.
VIABLE AGRICULTURAL DISTRICT:
The area to be immediately affected by the Yancoal mine is a viable agricultural district: there are 126 homes and 325 residents within a 5-mile radius of the proposed mine site. The way Yancoal has been treating land owners is of great concern. Yancoal has resorted to corporate “divide and rule” tactics which pit those who are more removed from immediate impacts and see short-term benefits, against those that face the brunt and lasting effects of this mega-project.
This is not the way to approach the risks to the land, habitats and communities. Many vital questions remain. We know from other locations that fracking carries its own risks. Yancoal estimates that during operations it will be injecting underground about 20,000 cubic metres (m3) of brine a day from its reclamation ponds. This amount of water will be permanently lost to the hydrologic system every day for the 100-year life span of the mine. And have the risks from the continual injection of such massive amounts of wastewater from solution mining underneath the Hatfield aquifer been fully considered? It is admitted that subsidence or downward displacement of surface material would occur over the next 250 years but what would be the extent of land slumping? Are there other risks of underground movement, including earthquakes, such as have occurred from wastewater injection in the oil and gas industries across the border?
We prefer the Precautionary Principle. Some may want to argue that the geology is different here and that there has been some solution mine wastewater injection without noticeable underground impacts. The cumulative impacts, with Yancoal’s 100-year timeline and so many other solution mines being considered within this already vulnerable watershed should, however, now be very carefully considered.
ENDANGERED PRAIRIE ECOREGION:
Underground contamination can come from pipeline leaks, rock fracturing and brine seepage into aquifers. Further, Yancoal plans to leave the salt tailings exposed. Just because this un-ecological practice has been allowed at potash mines does not mean it should continue. According to Parks Canada the Moist Mixed Grassland Ecoregion in the Prairies Ecozone where Yancoal wants to mine is already one of the most endangered areas in the world. And what are the risks of contamination of fragile fish habitat in the West and East Loon Creeks?
What are the risks of farm lands being greatly devalued? And why is Yancoal being allowed to side-step the foreign ownership guidelines? Yancoal has already purchased 4,200 acres but has an exception that allows them to buy up to 60,000 acres; does it really need this for a potash mine?
YANCOAL’S ENVIRONMENTAL RECORD:
The foundational knowledge for all the technical assessments should be fully released and carefully scrutinized. Yancoal’s dismal environmental record abroad should also be fully assessed.
QVEA Position #3:
At a minimum a panel of fully independent hydrologists should be formed to report on all the pertinent research about deep underground waste water injection before any further consideration is given to approving this project.
CONTROL OF POTASH:
Yancoal is a Chinese state corporation which operates on a different time span than other resource companies. Their goal is as much about securing long-term global supply of non-renewables as it is about profitable production and marketing. It has a guaranteed interlocked purchaser, China.
With nearly half of known potash reserves, Saskatchewan is a prime target. And with its own domestic overuse and contamination of watersheds and aquifers, China is also interested in accessing cheap water abroad for its resource extraction. This greatly externalizes its costs onto the Saskatchewan environment.
Yancoal could be here for 100 years. This is its first such mine, which likely makes us their guinea pigs. And as it plans this huge project, other companies are laying off workers due to the slump in the global potash market. Is anything in place to ensure that Yancoal will not come to control Saskatchewan potash production and undermine the competition and the marketing system (Canpotex) that ensures that the province benefits somewhat from potash royalties? Will Yancoal’s involvement lead to lower prices as well as a shrinking commercial market? If BHP Billiton was kept from purchasing Potash Corp because it was considered a threat to this “strategic resource”, then shouldn’t Yancoal be held to the same standard?
QVEA Position #4:
Before this project is allowed to proceed any further there must be full public disclosure of all agreements and obligations made by the Saskatchewan government and those regarding the Chinese-Canada FIPA trade agreement which have any bearing on Saskatchewan’s long-term public interest in resource royalties and revenues.
PROTECTING THE QU’APPELLE WATERSHED:
The Lower Qu’Appelle is already considered to be facing “high intensity” stress regarding surface water allocation and ground water use. Roads, aquatic fragmentation, impact of landfills, livestock and fertilizer inputs, pesticides and contaminated sites all contribute to such stress in the watershed. The diversion of millions of cubic metres of precious water for Yancoal’s mine will inevitably further undercut the aquatic health and recreational vitality of the Lower Qu’Appelle, which flows through the Qu’Appelle Valley. Furthermore, over the very long time span of the Yancoal solution mine, upstream saline and other contamination will almost inevitably make its way through the natural drainage system into the Loon Creek which goes into the already vulnerable Qu’Appelle Valley watershed.
Yancoal’s solution mine has direct implications for both water quantity and quality throughout the Qu’Appelle Valley Basin. The environmental review process should therefore not be skewed to exclude those who will ultimately be impacted downstream. Downstream indigenous as well as settler communities have a lot at stake here, yet in both cases the broad public has not been directly involved in the review process. This is unacceptable.
QVEA Position #5:
Before this project goes any further there must be a full, informed public discussion of the implications of the Yancoal project for the quantity and quality of water passing through the Qu’Appelle Watershed.
Line 3 will pump nearly one million barrels of tar sands and crude oil a day across southern SK. It will tunnel under the S. SK River near Outlook and the Qu'Appelle River near Bethune. It will cross four river basins and fourteen watercourses. It will threaten all downstream land, water and communities.
Thick bitumen is diluted with compounds (naphtha, the carcinogen benzene) to create the volatile, toxic dilbit that flows along the pressurized pipeline.
Pipeline ruptures contaminate large tracts of land and waterways.
Leaks that sink in water are harder to contain and clean up.
Railcars carry relatively small volumes of oil and have smaller and fewer spills. Undiluted bitumen would be much less volatile than the light Bakken oil that caused the Lac-Megantic disaster.
However, Line 3 will carry twice the volatile, toxic dilbit that was to go through Enbridge’s Northern Gateway pipeline and even more than Keystone.
This will threaten our vulnerable prairie grasslands and land and water in the U.S.A.
1999 - Enbridge Line 3 Pilot Butte spill: 3,180,000 litres
2016 - Husky Oil’s N. SK River spill: 220,000 litres
2017 - Tundra Energy’s Ocean Man First Nation spill: 200,000 litres;
Weeks later another spill near Storthoaks, southeast of Regina
The Pilot Butte spill is similar in volume to Enbridge's 1.3 million gallon Kalamazoo River spill in the U.S. This took over four years to clean up at a cost of $1.21 billion. Crude oil from SK is pumped through that U.S. pipeline.
8,000 industrial spills were reported in SK since 2006. 17% of these were from Husky Oil, SK's biggest producer, controlled by Hong Kong billionaire Li Ka-shing.
In 2014, the SK Auditor reported that the province had not implemented vital 2012 recommendations to regulate pipelines. It still hasn’t. Inspection records for Husky’s pipeline spill still have not been made public.
Line 3 will be a new, larger diameter pipeline, the size of Keystone. It is not a replacement; the route is different around Regina and all across Minnesota. By calling it a replacement pipeline, permitting procedures were side-stepped. It is unacceptable that Enbridge has permission to abandon its old pipeline without reclamation.
Serious public scrutiny of Line 3 has not happened in Saskatchewan.
19 to 26 mega-tonnes (MT) of CO2 emissions per year will come from extracting the bitumen for the 50-year lifespan of Line 3. Massive CO2 emissions that Canada is not required to report will also result from the export of up to 915,000 barrels a day of tar sands dilbit. Canada is the world’s largest per capita carbon extractor (2 X the U.S.). Net exported emissions from oil produced in Canada have increased 5 X since 2000. (See Behind the Numbers, Jan. 2017.)
If all emissions from approved pipelines are honestly calculated, Canada would not meet its Paris commitments.
The federal government has endorsed the UN Declaration of Indigenous Rights affirming “free, prior and informed consent” for mega-resource projects.
Truth and Reconciliation requires a new, post-colonial relationship.
Enbridge’s “engagement agreements” with Indigenous communities do not meet this standard.
Enbridge partly owns the high-profile Dakota Access Pipeline at Standing Rock, North Dakota. A Treaty Alliance with 120 Chiefs has formed to ban dilbit pipelines through traditional territories in Canada and the U.S. Ochapowace and James Smith Cree Nations in SK have endorsed the Alliance. The Assembly of Manitoba Chiefs is in the courts to stop Line 3 from going across its traditional lands.
(Liberal platform 2015.)
Building Line 3 will expand the tar sands, increase carbon emissions and exacerbate the climate crisis.
It will threaten waterways, aquifers and grassland habitats.
It will add to cumulative ecological impacts from fracking, toxic waste water and tailing ponds.
It will waste capital that should go towards conversion to a low-carbon economy.
RBC, BMO, CIBC, Scotiabank and TD should divest from the $7.5 billion-dollar Line 3 now. The federal government must stop subsidizing fossil-fuels. The SK government must stop misinforming the public about Line 3.
The QVEA endorses the Treaty Alliance and renewables. 200 First Nations across Canada already support renewable energy initiatives. The QVEA will launch a public awareness campaign to expose the hidden facts about Enbridge's Line 3 pipeline.
Enbridge is building the Line 3 pipeline across SK. In Feb. 2016, it announced their “largest-ever equity offering” to Canada’s major banks, the RBC, BMO, CIBC, Scotiabank and TD. They agreed to purchase 49 million shares at $41. This will help Enbridge build Line 3 at a cost of $7.5 billion.
Meanwhile, Enbridge is now expressing its own “concerns about the potential for the long-term growth of bitumen (tar sands) projects.” And International oil companies are already divesting. The Tar Sands are quickly being “Canadianized” because the bitumen is so expensive to extract and production can’t be ramped up quickly, as with cheaper U.S. shale oil. Trump’s protectionism could also backfire on the Tar Sands.
Shell just divested to a tune of $8.5 billion, leaving Canadian Natural Resources holding the bag. ConocoPhillips just sold off $18 Billion to Canada’s Cenovus Energy. Cenovus shares immediately dropped. Chevron and Total SA could be next to go.
If the truth was told by Premiers Wall and Notley, there won’t be enough demand to fill all the pipelines already approved by the federal Liberals. Opposition is mounting to B.C.’s Trans-Mountain (Kinder-Morgan) pipeline, and there are still court challenges to Keystone. We have to speak up about Line 3, for it will put our environment, water, climate and our savings at great risk. It is time for Canada’s big banks to divest from Line 3. Renewable energy is the way to go.
Photo: Upstream - North Saskatchewan River
QU’APPELLE VALLEY ENVIRONMENTAL ASSOCIATION (QVEA) STATEMENT ON HUSKY OIL CONTAMINATION OF NORTH SASKATCHEWAN RIVER, July 2016
The contamination of the North Saskatchewan River from 250,000 litres of heavy oil and chemicals from the rupture of Husky Oil’s pipeline near Maidstone clearly shows that Saskatchewan’s waterways are at risk from unfettered energy industry expansion. 80,000 people lost their primary source of domestic water. Residents lost their access to this rich recreational river-way. Treaty rights to access the lush river ecosystem have been breached. Biota, wildlife and environmental health will all suffer along this mighty, meandering river.
Attempts at mitigation have proven to be seriously flawed. Warnings about the leak started on the evening of Wednesday July 20th, not the next morning, as first reported by the company. What was the company doing during this unaccounted 14-hour period?
The berms failed to prevent the oil from entering the North Saskatchewan River. Then the river booms failed to stop most of the oil from going downstream, where it is threatening the drinking water of North Battleford, Prince Albert and Melfort. This contamination has gone from one side of the province to the other. And it is nonsense for Husky to claim that 40% of the oil has been cleaned up; we will be lucky to get 5-10% recovery, the average for oil spills.
Prince Albert was forced to declare a state of emergency and passed an emergency bylaw to compel water conservation; rural residents were completely cut off from their water supply. Muskoday First Nations 15 KM south of Prince Albert has already declared an emergency over water supply. The 30 KM pipeline from the South Saskatchewan River to Prince Albert’s water treatment plant will only be a temporary and yet very costly solution. It is only about 100 days to freeze up.
Saskatchewan only has a few major waterways, on which most of the population depends. It is obvious from this unfolding crisis that there is too much at risk having oil pipelines near our waterways. Why was this pipeline allowed to be built so close to the North Saskatchewan River? And how many other pipelines exist along our vulnerable waterways? We need answers!
It is now reported that the leak came from only 300 metres from the riverbank; many riverside municipal lagoons must be built further back than this.
Only interprovincial pipelines are federally regulated, the rest are provincial responsibility. There are multiple overland pipelines in Saskatchewan already doing serious damage to the land. Over 8,000 industrial spills have occurred in Saskatchewan since 2006 and 17% of these were by Husky Oil, the largest oil producer in the province. Most simply go unreported in the media.
Even without Husky’s contamination of the North Saskatchewan River, the ongoing, mostly under-regulated spills, demonstrate the need to fully embrace a non-toxic energy system. A move to solar and wind generated electricity will reduce threats to our waterways and to our water quality. But until we can make this full conversion away from fossil fuels, why is a heavy oil pipeline even allowed to be built where it can threaten a major waterway?
Premier Wall’s statement that pipelines are “the safest way” to transport oil was completely misplaced. It doesn’t matter whether one of our waterways is contaminated from a pipeline break or from a rail accident; our waterways and population need to be protected from both. It is not a good sign that for almost a week Premier Wall stayed quiet about the contamination of the North Saskatchewan River. This is one of Saskatchewan’s worst environmental disasters.
Things could get much worse: if this spill happened during the 5-month period when the North Saskatchewan River is frozen, no one would know where to start with the cleanup.
The North Saskatchewan River is not the only Saskatchewan waterway at great risk. The Qu’Appelle Watershed has endured ongoing releases of Regina’s untreated sewage and toxic agricultural run-off, and plans are now in the works to divert millions of cubic metres of surface water into upstream potash solution mines. This water will be permanently taken out of the hydrological cycle to the detriment of the long-term health of the watershed and future generations. And the SK government is now allowing Enbridge’s Line 3 pipeline, bringing oil from Alberta’s tar-sands, across the prairies, to go to the U.S., to be built along and under the Qu’Appelle River?
Saskatchewan has very few waterways and all need stringent protection. Yet in the recent budget there was a $2.7 million dollar cut to the Petroleum and Natural Gas Branch which is supposed to enforce the regulation of the oil industry. Meanwhile the province still can’t confirm when Husky’s ruptured pipeline was last inspected or whether Husky even had the required Emergency Plan in place.
Also, the province is now cutting funds to Saskatoon’s Meewasin Valley Authority, which maintains trails and habitat along the South Saskatchewan River. Rather than such cuts, the government should be rigorously investing in watershed protection, restoration and oversight. Many of the recommendations to protect the Qu’Appelle Valley watershed, made in the 1970s by the Qu’Appelle Implementation Board Study, still apply. They are even more urgent now, yet we still see no positive provincial action at all.
And there are no longer any such oversight agencies to ensure that the lakes, wetlands, landscape, habitats and water quality in any of Saskatchewan’s watersheds are being protected and restored. This must change.
Our watersheds and water quality must be protected from further industrial abuse. Industrial self-regulation and reactive municipal actions will not and cannot accomplish this. It is time for the province to fundamentally rethink its policies to make watershed protection and restoration a top priority.
Let Husky Oil’s contamination of the North Saskatchewan River be our wake-up call so that such environmental abuse is not allowed to become normalized. Clean water is already scarce on the prairies and with climate change it will become even scarcer. We must now “put water first”.
THE QVEA The Qu’Appelle Valley Environmental Association (QVEA) was formed in early 2016 to protect and restore the Qu’Appelle watershed and landscape. During the April provincial election, it sponsored the first ever all-candidates forum focusing on the environment. It has worked with opposition parties and area residents to raise awareness about the dangers from the proposed Chinese Yancoal potash solution mine upstream from the Qu’Appelle Valley. It is the watchdog on local governments in the valley when they do not follow environment protection regulations. It is committed to work with other independent organizations protecting Saskatchewan watersheds.
You will notice on the left side of the funding graphic are 35 North American, European and Asian banks investing large sums and expecting to receive much larger sums in return. There is however, no accounting for the accruing costs to the global environment of these projects. On the right side are three revolving credit funds collectively referred to as the “Energy Transfer Family”. Sunoco Logistics involves 24 banks, Energy Transfer Partners has 26 banks and Energy Transfer Equity has involvement with most of the banks listed. The Dakota Access Group (Project -Level Loans) has 17 of the 35 banks listed. It is important to note the Bank of Scotland has chosen to distance itself from the Dakota Access Project only stating it has ‘exited the relationship”. It is believed to be a result of the negative press the protest has received over this pipeline project.
As 2016, the hottest year in history closed, the magnitude of assets pledged to fossil fuel divestment had surpassed $5 trillion, the commitments having doubled over the last 15 months! A global call for a clean energy economy continues to strengthen as former top Mobil Oil executive (Lou Allstadt) and thousands of signatories (688 institutions, 58,399 individuals, across 76 countries) have joined the “divestment” movement away from fossil fuels.
The UN Secretary General stated “it is clear that the transition to a clean energy future is inevitable, beneficial and well underway and that investors have a key role to play. Many are backing the shift from the most carbon intensive energy sources and into safe, sustainable energy investments.”
Divestment has spread to every sector of society from universities and pension funds, to philanthropic and cultural institutions, to cities, faith groups, insurance companies and others. Support is gaining among profit-driven institutions like large pension funds, private insurers and banks citing “climate risks” to their investment portfolios such as physical, stranded assets and legal liability. One city of note is Seattle, which suspended some of their business dealings with Wells Fargo Bank in October 2016 over fraud allegations (similar to what TD has been dealing with of late). Recently, (Feb. 8/17) and subsequent to the “protest” the City of Seattle voted to divest funds from Well Fargo due to their support of the Dakota Access Pipeline. At the TD Bank AGM (March 30/17) the Leadnow group presented a 25,000 signature petition directly to the TD CEO (B.Masrani) calling on TD to stop supporting the Kinder Morgan pipeline expansion. One shareholder actually stood up and asked to sign on! The substantial coverage by the Toronto media subsequently was described as a “warning shot” to investors that Kinder Morgan is risky and a serious brand liability.
Oil pipelines are inherently dangerous and threaten our communities with spills, explosions, water and air pollution and climate impacts. But they also boost corporate profits and increase our dependence on fossil fuels while they bring immediate and long-term risks and harms to those who live along the pipeline routes.
California adopted the Global Warming Solutions Act in 2006 which requires them to reduce GHG emissions to 1990 levels by 2020! With nearly ten years of data to document their progress to this goal it is indeed compelling. California’s economy has grown 12.4% making it the 6th largest economy in the world. Population has increased 7.4% while emissions have decreased 7.3% and petroleum consumption has dropped by 14.3%. Employment grew while electricity consumption fell. Renewable energy generation capacity grew 163% while clean tech investment increased 584% from $1.43bn (2006) to $9.78bn (2015) which is about 60% of all clean tech investment in the USA. A public poll in 2016 revealed 68% of Californians supported the state’s Global Warming Solutions Act adopted in 2006. Quebec’s cap-and-trade program (started in 2013) is linked to California’s market and has raised more than $1.27bn CAD in revenue for transit, home energy retrofits and energy programs for large and small companies via the “Green Fund”. As well California’s cap-and-trade program (started in 2012) has generated more than $3bn USD ($4bn CAD) in revenues with proceeds invested in high-speed rail, sustainable communities, clean transportation, energy efficiency and clean energy programs. The cap and investments helped drive emissions down and produced co-benefits for healthy communities.
CIBC and TD Banks both have large energy portfolios and have pushed for the US government to approve final construction of the Keystone XL Pipeline to connect Canadian Tar Sands to Texas and the Gulf of Mexico. Both CIBC and TD Banks have ties to TransCanada Pipelines and have advocated for massive increases in pipeline capacity. Gordon Griffin former US Ambassador to Canada (now a CIBC Board member) was a former lobbyist for TransCanada and a “contributions bundler” for Clinton’s 2008 presidential campaign. TD Bank’s spokeswoman Ali Martin stated “like all major banks, institutional investors and pensions we invest in the energy sector but the bank is not a fundamental shareholder in TransCanada”!
CIBC and TD Banks interests are not just in the Keystone pipeline, they both support the construction of pipelines in Canada heading west to the Pacific and east to the Atlantic as an alternate means of getting crude oil into the international market. Both Banks have pushed these pipelines as a “national priority” since 2012. One of those alternatives is the construction of the Energy East which would move Alberta crude to Quebec ports. However, this is being opposed by Gaz Metro (a Quebec-based natural gas company) and numerous other groups in Canada.
Both TD (Chairman Frank McKenna 2014) and CIBC Bank (VP Victor Dodig 2014) officials were present at the Clinton speeches in Canada in 2008 and 2014 urging the support of pipeline approvals. The TD Bank “co-sponsored speeches” yielded the Clintons $1.6 million. CIBC would not respond to inquiries, however were heavily implicated in ticket purchases sent out to numerous companies. Clinton’s swing through Canada in 2014 yielded: $275,000 in Vancouver (TD co-sponsor), $225,000 in Calgary (TD sponsor and CIBC CEO did post media interview), $100,000 for Edmonton (CIBC main sponsor) and $150,000 in Toronto (TD main sponsor). The point here is that the banks that charge us the high fees to manage our money are expending huge sums to influence policy and political decisions in their favour regardless of any climatic concerns or damages their projects may do to the environment and their customers.
Norway indigenous activists (Sami group) after attending some of the protest in Standing Rock returned to the Sami Parliament and lobbied executives of Norway’s largest bank DNB (a direct investor and loan provider to the Dakota Access pipeline). DNB loaned $120 million to the Bakken pipeline project and credit lines of $460 million to companies with ownership stakes like Energy Transfer Partners, Sunoco Logistics, Phillips 66 and Marathon Oil. An answer was received in about a week and DNB sold off $3 million in assets, although, still responsible for the credit lines. By the second week Odin Fund Management of Norway sold off $23.8 mil worth of shares in companies that were part of the Dakota Access pipeline project.
Over that the last few months there has been seven major multinational oil companies scaling back or eliminating their holdings in the tar sands: Norway’s Statoil (Dec. 2016) sold off all its tar sands assets at a loss due to pressure from Norwegians and low oil prices. Their CEO then stated that the “low - carbon future will reshape the energy-space”. Soon afterwards came Kock Industries announcement they were cancelling their “Muskwa” tar sands project west of Ft. McMurray. Imperial Oil (Can. Subsidiary of ExxonMobil) writes down 2.8 mil barrels of bitumen admitting tar sands oil is uneconomic at current energy prices (Jan. 2017). ConocoPhillips states (Feb. 2017) that 2 bil barrels of its proven tar sands reserves may stay in the ground suggesting that low prices make it uneconomic to produce. However, on April 21, 2017 Cenovus (Cda.) announced they purchased those tar sands reserves for $17.7 bil. ConocoPhillips concedes it is trying to reduce its debt-load. ExxonMobil, the largest US oil company announces (Feb. 2017) it cannot profitably develop 3.6 bil barrels of its tar sands reserves which may be left in the ground at present low oil prices. Marathon Oil sells (Mar. 9, 2017) its Canadian tar sands operations to relieve its investment portfolio of its highest cost assets. That same day Royal Dutch Shell sells off all its tar sands assets for $7.25 bil and CEO states that “public faith in the oil industry was just disappearing.
An issue related to Shell is their arctic oil leases (30) covering an area of 8,600 square kilometers in Lancaster Sound, northeast of Baffin Island, which border along the edge of the newly proposed marine protection area. Shell obtained the leases in 1971 but had not acted on them. Over the decades these unused permits became an obstacle to the creation of a protected marine park in and around Lancaster Sound. The Qikiqtani Inuit Association has been pushing for protection of these waters and marine life for years. In 2014 Shell stated it would relinquish the leases if it was allowed to conduct seismic testing of the region. However, the area had been under a seismic moratorium since 2010 and so was a deal-breaker for the Inuit Association. A controversy erupted as to whether the leases were still valid. In March 2016 after the Liberals first budget promised more protection in the North, Greenpeace stepped in with documents obtained through access to information provisions which proved the leases had expired. However, Indigenous and Northern Affairs Canada stepped in stating the leases were still valid. So with lawyers from Ecojustice, WWF-Cda launched a lawsuit challenging the validity of the permits. The lawsuit never made it to court and on June 8, 2016 Shell donated the thirty leases to the Nature Conservancy of Canada. It is hoped that the Lancaster Sound National Marine Conservation Area will be formally announced in time for Canada’s 150th Birthday.
Photo: Wadena News - Quill Lake Area Farm
January 8, 2018
Hon. Dustin Duncan,
Minister of Environment,
Province of Saskatchewan, Rm. 345, Leg. Bldg., 2405 Leg. Dr. Regina, SK., S4S0B3
Dear Mr. Duncan:
Our organization, the Qu’Appelle Valley Environmental Association (QVEA), is working hard to protect and restore the Qu’Appelle Valley watershed. We work with a network of over 200 people throughout the valley and are involved in a wide range of issues that pertain to the health of the watershed.
We have closely followed the various proposals to address the flooding of the Quill Lakes. Like other groups in the valley, we are concerned that high-saline and toxic runoff water could overflow and detrimentally affect Last Mountain Lake and the downstream watershed where we live.
Our goal is to see a policy-making process quickly developed that takes into account all those affected by the flooding. A flood management plan will have to consider, as a minimum:
1) farmers who are steadily losing land,
2) valley residents who are trying to restore watershed health,
3) Indigenous communities who have treaty and water rights that must be protected.
In early 2017 we met with the QLWA to discuss the options that it was considering in the aftermath of the cancellation of the Kutawagan Dam project in late 2015. We have been very clear that we do not support deep well injection of Quill Lakes water, as the protection of aquifers must be part of any sustainability (intergenerational) strategy for our province. Nor do we support Quill Lakes water being diverted for solution mining. Also, we have been very clear that the designing and implementation of any flood management plan should remain a provincial responsibility, and not be off-loaded to a regional group like the QLWA. This matter is far too complex and far-reaching to be instigated by only one major stakeholder group.
Also, for the record: 1) we do not support the QLWA proposal to divert inflow water from the Kutawagan and Pel lakes towards Last Mountain Lake. We appreciate all the work of the QLWA to try to find a low-cost means to prevent a potentially much more devastating natural overflow of higher saline and toxic runoff water from the Quill Lakes. But we strongly believe that other options need to be carefully considered and some basic questions clearly and accurately answered before anything like this should even be considered. 2) We also wish to be on record as supporting a full environmental assessment to ensure that the lowest impact plan is put into place.
The questions and options that need more stringent investigation are, in order of priority:
We realize that extreme precipitation from climate change has affected the Quill Lakes Basin. And the province has to seriously embrace energy and other policies that will help to reduce our record-high per capita carbon and methane emissions.
However, it is also vital to know how much of the actual rise in the Quill Lakes over the last decade or so has resulted from agricultural drainage? The seeded acreage in SK has apparently increased from 25 to 37 million acres since 1975, and it is vital to know how this has contributed to the flooding crisis. To move forward we all mustknow what impact it would have on Quill Lakes levels if this drainage was stopped, using the enforcement powers in Bill 44. Objectively answering this question should be our first priority, and we would like to have this question answered by you, with the aid of researchers at the WSA.
As we all know, there has been a steady deterioration of Saskatchewan wetlands that naturally help with flood management, while enhancing habitat and water quality. A vital part of our resilience planning for climate change, whether from flooding or droughts, must therefore be wetland restoration. So, we need to know how much water could be diverted and held, through wetland restoration, and what role this could play in reversing the rise of the Quill Lakes? How much Crown land is there in the Basin that could be used for this purpose? And isn’t it time for the government to cease selling off such Crown land? Isn’t it time for it to compensate farmers who preserve wetlands that can have this overall benefit. We would also like your evidence-based answers to these inter-related questions.
We agree that it is better to divert lower TDS spring surface water from entering and raising the Quill Lakes, than face a higher TDS Quill Lake overflow into the Qu’Appelle Valley. However, we do not think more agricultural or RM ditching and drainage should be encouraged or approved, especially without A and B being objectively pursued. And if it is confirmed that we will need some inflow diversion, there must clear, enforceable guidelines, which would include, as a minimum:
a) that the diversion of inflow water primarily relies on natural waterways,
b) that this does not become a means for further unregulated agricultural drainage, to the detriment of downstream habitats and settlements and
c) that this project has the maximum capacity to hold and store water, and enhance evaporation, as part of an overall flood management strategy. We believe that the province, not a regional group, will have to oversee this complex of responsibilities.
Finally, there is no way of escaping the deleterious effects of runoff containing toxic agricultural chemicals. Whether these are pesticides or fertilizers they negatively impact downstream water quality and watershed habitats. The neonic pesticides are being banned elsewhere because of their impacts on wetlands and and threats to bee populations and pollination. These should immediately be banned in SK.
There is justifiable concern that both a natural overflow of the Quill Lakes, and a diversion of water that would otherwise go to these lakes, will bring toxic chemicals into the Qu’Appelle Valley. At present there is a dispute over the facts and the relative risks of these scenarios, which can only be resolved through reliable information and a politically-transparent process. We would like to know the evidence-based views of your government on these questions.Our organization grew out of the regional Kairos, a national ecumenical justice organization. On June 22, 2013 it sponsored the first, and so far, the only Round Table, with all stakeholders, on our watershed health. It included the province (WSA), First Nations (PFN), local government (CLDPC) and other groups. Several hundred attended. Since then we have held several public forums on issues pertaining to our watershed. We are not a NIMBY (not in my back yard) group, but believe that there must be a multi-faceted Action Plan to be able to protect and restore the Qu’Appelle Valley watershed. (There is a lot to learn from the past Qu’Appelle Implementation Study.) Tackling Quill Lakes flooding must be a part of this.
Hopefully in the coming spring, we will again be able to host discussions where all stakeholders can consider our common objectives and do fruitful information sharing to help us all move forward together. We will be in touch with your Ministry when these plans are finalized.
We look forward to your responses to our questions in A-D above. Thank you for your assistance. The best to you and yours in 2018.
Randy Lebell, Lorna Evans and Jim Harding, QVEA Directors
QVEA, Box 506, Fort Qu’Appelle, SK, SOG 1SO
Water Security Agency (WSA), Susan Ross, Pres. & CEO, Water Sec. Agency,
111 Fairford St. E. Moose Jaw, SK., S6H0B8
Pasqua First Nation (PFN),
Calling Lakes District Planning Commission (CLDPC),
Quill Lakes Watershed Association (QLWA),
Last Mountain Lake Stewardship Group (LMLSG)
Cathy Sproule, NDP Environment Critic,
Rm. 265, Leg. Bldg., 2405 Leg. Dr., Regina, Sk. S4S0B3
Sept 19, 2016, Regina Hearings
Discussed and amended at Sept. 14, 2016 meeting of Qu’Appelle Valley Environmental Association (QVEA).
Oral presentation based on this Brief to Parliamentary Special Committee on Electoral Reform by Jim Harding on behalf of the QVEA. QVEA organizers Lorna Evans and Randy Lebell presented at the Open Mike sessions.
Most democratic countries, other than the predominantly Anglo-Saxon-influenced ones of England, the U.S., India and Canada, have some form of Proportional Representation (PR). Eighty (80%) percent of OECD countries have some form of PR. There is a reason why, for without PR, using the First-past-the post-system (FPP) where winner takes all, a minority of voters can pick the government. This pseudo-majority government can then take actions that the overwhelming majority of the population may not support. This is not only unrepresentative but can be dangerous to democracy.
In an era where we face such unprecedented global environmental challenges we will need the most representative and resilient democracy we can muster. Some form of PR is clearly a better system than what we now have because it ensures that government is more representative of the people’s choices. It ensures that government will be more accountable and transparent to citizens.
1. Tyranny of Minority:
Our antiquated system allows a minority of eligible voters to pick the government. Fair Vote Canada reminds us that only 4 of the 17 “majority” governments elected by FPP in Canada since WWI received 50% or more of the popular vote. With 36% support among the 65% of eligible voters who voted, or only 23% of the electorate, Harper got a minority government of 143 seats in 2006. (You needed 155 to be a majority.) Being a minority government was some kind of check on Harper’s power. However, in 2011, with only 39% support among the 61% of eligible voters participating, Harper got 166 seats and all the power of a majority government.
This was still less than one-quarter (24%) of the electorate, which is hardly rule by the majority. Combined with divisive wedge politics and voter suppression our country was at risk of centralized (PMO) manipulation.
Observation No. 1:
Policies such as deregulating most waterways that were passed in undemocratic Omnibus Bills were clearly bad for environmental protection, and would never have been approved with a minority government. But these became the law of the land. As well as jeopardizing environmental protection, this amounted to a tyranny of the minority.
2. 2015 Election Still Unrepresentative:
The FPP also distorted the 2015 federal election results. Voter turnout thankfully went up to 69%, which was much better than when Harper was elected in 2011. But this was well below past elections, when the FPP system might be said to have been more fairly representative of the people’s choices. In 1963, for example, the Pearson Liberals were elected with a majority with 79% of eligible voters participating.
In 2015 the Liberals got a majority government of 184 seats with only 39% of the vote. There was a 69% voter turnout in large part due to broad discontent with Harper, but the Liberal majority was still won with support from only 27% of the electorate. The Conservatives got 99 seats, which we’ll see was closer to their share of the vote. The NDP got 44 seats, the Bloc 10 and the Greens only got 1 seat, that of their leader.
Observation No. 2:
Things would have looked much different in 2015 if MPs were elected proportionate to the popular support of their parties. The Liberals would have had a minority government of about 135 seats, the Conservatives would have increased slightly to 105, but the NDP would have had 67 seats, 23 more than they actually got. The Bloc would have had 17 seats and the Greens 10.
3. Support Freedon of Expression:
An objective comparison of FPP and PR clearly shows that FPP creates severe disproportionality. FPP always undercuts fair and accurate representation, which, in turn, undercuts the sovereignty of the citizenry. Voter turnout is likely to decline because many people, even a majority, can come to realize that their vote isn’t having an effect on the outcome. Voters are also more likely to vote strategically, to get rid of a government that they don’t like, which was widespread in 2015. Strategic voting, too, distorts representation and creates disproportionality.
If people don’t believe they have a positive chance to affect the outcome, then they are less likely to vote by conscience, if they vote at all. This undercuts the health of our political culture. Our electoral system should affirm the equality principle within the Charter of Rights; each voter should be able to have an impact on the election outcome.
Observation No. 3:
Enhancing proportionality and fair representation, and encouraging voters to participate and vote as they believe, complements the Canadian Charter of Rights, which sees freedom of expression and the equality principle as central tenets of democracy. Our voting system should be changed to encourage freedom of expression.
4. Why Support Continues for FPP:
Representative government suffers from the disproportionality, low voter turnout and strategic voting that comes with FPP. So why, with all these flaws, do we still have support for this system? Some of the support comes from familiarity and habit, which makes the system seem straightforward. Change requires deeper understanding, especially clear understanding of outcomes.
Some supporters of the status quo argue that FPP creates more stability. But does it? And what kind of “stability” does it create? The seeming stability of our present FPP system is based on misrepresentation and disproportionality, not on basic democratic consent and legitimacy. We shouldn’t be trading off the health of our democracy for such a questionable form of stable government.
The so-called stability is also based on citizen exclusion and even systemic manipulation, such as by divisive wedge politics. Both accountability and transparency will suffer under FPP.
Observation No. 4:
Under the status quo of FPP, citizens become more alienated, disengaged and cynical about the election of governments. This can hardly be said to create any fundamental stability or legitimacy.
5. Deceptive Criticisms of PR:
There are unfair criticisms of PR which try to distract us from all the flaws of the FPP status quo. The Fraser Institute has been claiming that under PR the people won’t be able to select their government. They argue that “under PR, voters effectively provide a sample of their opinions and the parties decide who will govern.”This is purely semantic. We’ve seen that 23, 24 or 27% of the eligible voters can select a majority government under the FPP. How can that be said to be “the people selecting their government”?
It’s actually the opposite; if “the people” means the majority and majority rule, then it’s the PR system and not the status quo FPP that would enable “the people” to select their government. The erroneous populist implication is that under PR the political parties will pick the government and that this is not “democratic.” Think about this. Under FPP we elect a number of MPs. The party that gets the most or a majority of MPs becomes the government and the leader it picked becomes Prime Minister; under FPP this decision doesn’t come directly from the voter. And a minority of the electorate can pick the party which becomes the government and picks the Prime Minister.
Under PR the parties create a list of their representatives that can be elected depending upon the proportion of the vote they get, say by the two-vote system of Mixed Member Proportion (MMP). Then the party or parties which have already picked their leaders and get the most or a majority of the seats pick the government . The Fraser Institute “critique” doesn’t actually describe how the two systems work. Rather it implies that “elites” will be manipulating behind the scene, similar to how Harper used such distrust of the “establishment” in his rise to power.
Observation No. 5:
The Fraser Institute and others who prefer the status quo are clearly trying to frame public discourse so that it disadvantages PR and the call for electoral reform. They are doing this before the wider public even gets a chance to understand how the different electoral systems work.
Observation No. 6:
Environmental protection and ecological sustainability is less likely to be marginalized with PR, including when it involves a coalition government, than under a government like that of Harper which got majority power from minority support.
The Mulroney Conservatives got a large majority government with 50% support in only two regions: Quebec and Alberta. His trade deal might have included other considerations than mostly corporate economic benefits if the electoral system and makeup of parliament had been more representative.
Observation No. 7:
The FPP system is generally not good for inter-regional communications or negotiations. PR would help depolarize the regions which would strengthen co-operative federalism. Pressing environmental issues like carbon pricing and moving to a less fossil-fuel intensive economy could then be addressed from a more pan-Canadian perspective.
Constituency “representation” can become parliamentary profile for highly localized special interest issues while major policy issues that affect the overall public interest can get marginalized by a highly whipped federal caucus.
Observation No. 8:
It would enhance democratic representation to have some MPs with a regional focus, as would happen with the MMP PR system, because then there would be a process to ensure better attention to overall concerns such as inter-provincial watershed protection.
Observation No. 9:
A whole new generation of active citizens could be nurtured with such enhanced access and proportionality. Young people naturally care about what climate change will do to the world they will live in and will bring this awareness into the democratic process.
Observation No. 10:
The norm that everyone is expected to vote needs to be encouraged hand-in-hand with the system being made fairer and more accessible. Comparative research already shows that PR will increase voter participation, so implementing this reform should be ERRE’s priority.
11. Online Voting:
What about online voting? The opportunity to vote should be enhanced on all fronts. However we need to always remember that voting is a social act and arises from people being a part of a political community or sub-culture. Having polls placed within First Nations communities increased voter turnout in the Regina-Qu’Appelle constituency in 2015. Also there are security and privacy issues that are raised by online voting.
Observation No. 11:
Online voting can’t be done at the expense of having accessible, secret ballot voting polls in all neigbourhoods, institutions, seniors home, etc. because this would undercut the goals of greater access, and better representation and proportionality.
And what about a referendum? It is unfair to say that we can’t have democratic electoral reform without having a “democratic” referendum. We know that the wording of a referendum will shape the outcome. For example, a referendum that gave people four choices: the status quo, two types of PR, or a ranking-preferential system would spread the support for change across three choices and the status quo FPP would likely come out the victor.
This is not democracy at work. It’s like the FPP, which allows a minority to have majority-like influence. The question at hand for the ERRE is whether we will: 1) maintain the present electoral system along with its disproportionality? or 2) create an electoral system which enhances representation and proportionality. The details and kinks could then be ironed out by our elected officials and public servants.
Let’s remember that we are not starting from scratch; there have been 13 processes assessing our electoral system since 1977 and all of them have concluded that we need “to make our electoral system more proportional”. Furthermore the Liberal government was elected on the mandate that this will be the last election using FPP. It’s time to move forward on this as a country, which would be a good way to celebrate our 150th birthday.
Let’s also remember that there was no referendum when women finally got the vote; it was just the right thing to do. And we can only imagine what would have happened if those with the vote got to decide. It would also be unfair for those who presently benefit from, and are more committed to participate in the FPP system, to be able to determine whether or not we get a voting system that encourages the broader electorate and publics to participate in our democratic processes. PR is the right thing to do.
Observation No. 12:
Because a referendum campaign would probably be used to split public opinion and maintain the status quo it is not a good instrument for making our electoral system more representative and proportionate.
13. Ranking Preferential System:
What about the ranking system? While it may seem easier and perhaps even cheaper to quickly instigate a ranking system without having to change constituencies or the number of MPs, this system would not guarantee better representation and proportionality, which is what is most needed.
In 2015 under a ranking system the Liberals would have received about 244, not 184 seats, which would have reduced the representation of all the other citizens (who supported Conservatives, NDP, Bloc and Greens) to just over 100 MPs. So in the name of expediency let us not go from the frying pan into the fire. Let us not allow the significant challenges involved in enhancing our democracy to dissuade us from making the changes that are required. All Canadians will ultimately benefit if our electoral system is made more representative, more proportional and thus fairer.
Observation No. 13:
If the 2015 election had been run with a ranking system, taking into account people’s second choices as indicated by polling, parliament would have been even more disproportionate than under FPP.
14. ERRE Principles:
Last but not least we’d like to comment on your five “guiding principles”. All of these will be affirmed by an electoral system based on PR. Our system will be more effective and more legitimate if it is made fairer by overcoming the disproportionality in the existing FPP system. PR will enhance the engagement of the broad electorate, including youth and disempowered groups. It will create better access and a more inclusive democracy in Canada. Making all these changes will create a much more fundamental integrity in the voting system. Elected officials who can no longer get elected with a minority split vote will have to become more accountable to not only the range of local issues, but the regional, inter-provincial and pan-Canadian issues such as the Climate crisis and our dependence on fossil fuels that are challenging us so much.