Politics should not be permitted to trump the integrity of our food security.
On May 14, 2015, nearly seven months before the designated end of his term, the BC Cabinet terminated Richard Bullock from his position as Chair of the Agricultural Land Commission (ALC) without warning. Last week, West Coast wrote to the provincial government suggesting that Mr. Bullock’s termination was illegal and asking for his reinstatement. The letter raises crucial questions about the tribunal’s necessary independence from the BC government. You can use our handy web-form to send your own message to the BC Government asking for Mr. Bullock’s re-instatement.
Importance of the independence of the ALC
Studies indicate that only 2.7% of the land base in BC is capable of growing a reasonable range of crops. As BC’s population continues to grow, particularly in the fertile areas of the lower mainland, pressures have been increasing to convert farmland to other uses. In response to these pressures, in 1973 the BC government created the Agricultural Land Reserve (ALR) to safeguard the future of BC’s food security, and established the ALC to manage the use of those lands.
British Columbians strongly support the ALR: a poll conducted last August (2014) showed that 95 per cent of British Columbians support the ALR as a means of preserving farmland and greenspace in BC for farming and growing food.
As the body tasked with protecting agricultural lands, the ALC must have the tools and resources it needs to effectively manage many competing interests while fulfilling its mandate of preserving BC’s agricultural land. Critical to its ability to carry out its functions is its ability to make impartial decisions, free from political and other pressures. As Forever Farmland, a report from the David Suzuki Foundation, states:
Public, landowner, and local government confidence that the ALC will be consistent, rigorous, and independent is critical to its success. Any government committed to “open, transparent and accountable” decision-making must give careful consideration to these issues.
In other words, the ALC’s strength lies in its independence, which both allows it to fulfil its mandate and incites confidence that these competing interests will be dealt with in a fair and transparent process.
That’s why Mr. Bullock’s termination is so disturbing. Particularly coming on the heels of controversial amendments to the Agricultural Land Commission Act last year – amendments that Mr. Bullock publicly criticised – the firing gives every appearance of a strong rebuke to Mr. Bullock and an assertion of government control over the ALC.
The province has appointed former Saanich mayor Frank Leonard to take his place, and insists that with upcoming changes to regulations new leadership was necessary. Although the government has agreed to pay Bullock until the would-be end of his term on November 30, 2015, the termination raises important questions about the independence of BC tribunals from political interference and pressure, as well as the potential implications this will have for the ALR.
Lawful termination or political meddling?
Governments, and government bodies, get their power to act from enabling legislation. The Agricultural Land Commission Act recognizes the importance of a strong, independent ALC, and we believe that the government has ignored its legal obligations in firing Mr. Bullock without cause.
See our letter to the Premier for our full legal analysis, but here’s what we say about the legislation governing Mr. Bullock’s termination:
Two things are noteworthy about the relevant provisions. First, section 8 of the ALC Act specifies that Your Honour may appoint a CEO during pleasure (i.e., may be removed at the government’s pleasure), whereas section 5 does not specify the Chair’s appointment is “during pleasure,” and in fact contemplates a merit-based processfor appointment.
Second, the [Administrative Tribunal Act] only grants Your Honour power to terminate the appointment of the Chair for cause. It does not explicitly authorize terminations of Chairs without cause.
In essence, the legislation implies that Mr. Bullock must have done something wrong (there must be a “cause”) to be terminated before his term is over. However, nothing in the government’s order or its public communications has referenced any such cause.
It is not difficult to understand why the Legislature may limit Cabinet’s ability to terminate fire a commission member. As discussed above, the ALC requires a measure of distance from government to ensure the integrity and independence of its decision-making.
It is exactly this need for independence that the provincial government had in mind when it enacted what is now section 8 of the Administrative Tribunals Act, one of the key legal requirements that we say that the government didn’t follow in firing Mr. Bullock. In introducing this legislation,then Attorney General Geoff Plant explained (video here):
This legislation will end that time-honoured practice of at-pleasure appointments, because that is a practice which can create uncertainty for tribunal members and thereby potentially undermine their decision-making independence.Under this bill, tribunal chairs and members will now have the certainty of fixed-term appointments [...]
[...]At the same time, the bill includes specific legislative provisions that will foster the independence of administrative tribunals and protect the security of tenure of tribunal members. [Emphasis added]
These provisions demonstrate that the Legislature intended for the chairs of tribunals, like the ALC Chair, to be appointed for fixed terms, immune to the political whims of the day. Between the legislative debates and a reading of the ALC and ATA Acts it seems clear that the Legislature did not intend for Cabinet to be able to terminate appointments of Chairs without cause.
Maintaining the integrity of the ALC
As we state above, the independence of the ALC is critical to its success in preserving BC agricultural lands for future generations. It appears, however, that the BC government has unlawfully interfered with the tribunal in firing Mr. Bullock without cause.
West Coast Environmental Law Association has written the Premier and Minister of Agriculture setting out its concerns and asking for either Mr. Bullock’s reinstatement or an explanation of the legal basis for his termination. We encourage you to support our request by using this Action Alert or sending a letter of your own.
Strong protection for the ALR demands that the ALC must retain its ability to act impartially and in the interest of preserving the ALR into the future. This simply cannot be done when the government is allowed to undermine the tenure of appointed Chairs, compromising the overall independence of the tribunal.
Ashley Thomas, Student Volunteer and Anna Johnston, Staff Counsel