Will Mark Lizarraga be Recused from Appeals Tribunal?

Godfrey Smith

B.T.L. Chairman Mark Lizarraga was recently appointed to the Appeals Tribunal, a three-member panel tasked with reviewing a matter involving Waterloo Holdings Limited in which the Department of the Environment has decided not to grant environmental clearance for its Cruise Ship Port and Cargo Expansion Project.  That appointment was made just a few weeks ago, but tonight, Senior Counsel Godfrey Smith who represents Waterloo, is requesting Lizarraga’s recusal from the Appeals Tribunal.

Godfrey Smith SC, Attrney-at-law

“In the case of the most recent selection, my good friend, Mr. Markhelm Lizarraga, the argument or the point being made is that he is an appointee of the prime minister as a director on the board of Telemedia.  In that position, he is appointed as chairperson of the board and is paid a very substantial remuneration for that.  In the letter, which you all have seen, we allege that the prime minister has, because of all the revelations that have come out, clearly to be seen, having shown a preference for Portico, which would place this latest appointee, Mr. Lizarraga in, in our view, a conflict of interest.  And in that position, we say that it is possible that unconscious bias would creep in. The recent revelations have shown that, as Waterloo suspected, the deck was always stacked against it, in favor of Portico.  We believe that the tribunal process is part of that stacking of the deck.  Why do we say that?  Crucial to keep in mind is that the initial composition of the tribunal was one member being the senator representing the private sector.  So, notionally, notionally, that person would be looking at the interest of the developer and then, on the other hand, there would be somebody appointed by the minister, notionally, looking at the interest of the DOE, and then on top of that would sit an independent judge of the Supreme Court.  That’s how it works in arbitrations, for instance, where the two disputing parties, each selects an arbitrator and then the two of them come together and select a chairperson.  Now that was changed.  They actually changed the law because they said that the private sector representative, the senator representing the private sector was a family relation to a consultant for Waterloo.  But what did the government do?  It didn’t amend the law to say [that] in such cases of conflict, we’ll go back to the private sector and ask them to name somebody else.  The minister then names that person, thereby securing for itself two of the three persons on the tribunal.”