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March 2, 2017
Nefarious Role of CCAA Court
Steelworkers Confront Wild West of CCAA
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Nefarious
Role
of
CCAA
Court
• Steelworkers Confront Wild West of CCAA
• Canadians Oppose the Entitlement of Class
Privilege
For Your Information
• Justice Newbould In
His Own Words
Nefarious Role of CCAA Court
Steelworkers Confront Wild West of CCAA
The financial oligarchy that controls the economy wants
to dominate
the working class without rules, negotiations, collective arrangements
or any sense of equilibrium between the contending social classes. In
this regard, the ruling elite have concocted a situation outside labour
and pension laws and collective agreements where
state-organized power dictates and enforces the demands of the
oligopolies. This is the Wild West of the Companies' Creditors
Arrangement Act (CCAA), which the Canadian working class totally
rejects.
Those in control of the CCAA process, the presiding
judge, monitor
and others cannot or rather do not want to clarify the rules because
they exist only to serve the narrow private interests of the oligarchs.
In dismissing the appeal of Local 1005 USW to reinstate post-employment
benefits
brutally taken away from Stelco pensioners under CCAA, the Ontario
Court of Appeal said bluntly without responding to any arguments, "It
is rare that this court will interfere with a discretionary decision of
a CCAA judge. Leave to appeal is denied." Well, the working class has
something to say about state-organized "discretionary" attacks and is
determined to interfere with them and hold governments to
account.
Within this CCAA Wild West, steelworker union locals at
the Stelco
Hamilton Steelworks and Essar Steel Algoma in Sault Ste. Marie have
been ordered to open their collective agreements. Those in control of
the CCAA at Stelco want to codify within Local 1005's collective
agreement the anti-retiree proposals of the U.S. Bedrock
oligarchs who aim to seize control of Stelco in contradiction with all
arrangements with the previous ownership groups and governments.
At Essar Steel Algoma, the oligarchs led by Deutsche
Bank who have
seized control of the CCAA process want to ram through concessions on
both steelworkers and salaried employees including a 10 per cent
wage
cut. The oligarchs think they can pull a fast one submitting 40
demands
for concessions while under CCAA
dictate.
Steelworkers, salaried
employees and retirees are showing
tremendous resolve to defend their rights and are determined to defeat
the CCAA conspiracy. Negotiating committee members of USW
Local 1005 in
Hamilton, led by President Gary Howe, journeyed the 741 kilometres
north to Sault Ste. Marie to stand as one with their
comrades at USW Local 2251 representing 2,100 Algoma
steelworkers and
USW Local 2724 representing 650 Algoma salaried employees.
They held a
joint press conference where they expressed their determination to
resist the unjust and dictatorial Wild West of the CCAA. They are
firmly united in standing for the rights
of their members, pensioners and steel communities. They want a vibrant
steel sector that serves Canadian nation-building and becomes a solid
industry where workers provide enormous value for their communities,
the broader economy and the well-being of the people and their society.
Executives of USW Locals 2251 and 2724 at Essar Steel
Algoma and USW
Local 1005 at
Stelco
meet on February 27. At centre: Local 1005 President Gary Howe,
Local 2724
President Lisa Dale, Local 2251 President Mike Da Prat. (D. Van Meer)
The following day on February 28, members of USW
Local 2251
gathered in continuous meetings to discuss the situation and vote
whether or not to give their executive a strike mandate to defend their
rights. Local 2251 reports that 1,896 members participated in
the
discussions and cast a ballot, which is an all-time
high for a strike authorization vote. Ninety-eight per cent voted for a
strike mandate totalling 1,851 yes votes versus only 43
members who
voted no. There were two spoiled ballots.
The overwhelming strike vote reflects the determination
of
steelworkers, salaried employees and retirees throughout the Canadian
steel sector to defend their rights under all circumstances even in the
face of the retrogressive police powers of the CCAA. Steelworkers and
their allies reject with contempt the wrecking of the oligopolies and
their
co-conspirators within the state machine.
The working class will resist all attacks on the rights
of active
and retired workers and will hold the provincial and federal
governments to account for the established pensions, OPEBs, collective
agreements, a level of steel production that meets Canadian demand and
all other negotiated arrangements within an equilibrium between the
contending social classes.
Canadians Oppose the Entitlement of Class Privilege
Justice Frank Newbould is presently presiding over the
bankruptcy process of Essar Steel Algoma within the Companies'
Creditors Arrangement Act (CCAA). The justice in such cases has
police
powers to decide issues that affect the working and living conditions
of Canadian workers and retirees, and the assets and income of
businesses and
even certain state agencies. In the Algoma case Newbould has already
ordered the suspension of regular company payments into workers'
pension funds. He also finds no issue with the collapse of the safety
committee arrangements steelworkers previously organized with the
company and the freezing of all human rights complaints under CCAA.
He has in addition given the green light for those who have seized
control of the company under CCAA, led by Deutsche Bank, to open the
collective agreements with both steelworkers and salaried employees and
force them to make $22 million in concessions. When USW
Local 2724 publicly said it would canvass its members to
vote for a strike mandate in the face of unilateral demands for
concessions, Newbould castigated the union for taking such an action
and hinted that he may not allow a strike while under CCAA.
Newbould was the presiding justice in the notorious
Nortel CCAA bankruptcy case where tens of thousands of workers and
salaried employees, retirees and small businesses suffered great losses
to their personal and collective well-being.
Complaints Against Justice Newbould
 The Indigenous Bar
Association accuses Newbould of interfering with the Saugeen First
Nation land claim. The Indigenous Bar Association and others filed
complaints in 2014 with the Canadian Judicial Council (CJC) after
Justice Newbould spoke at public meetings and wrote two letters in
opposition to a proposed land claim settlement with the Saugeen First
Nation. The land claim to extend the reserve territory had the support
of the federal government. The town of Sauble Beach appeared prepared
to agree with the claim until the intervention of Justice Newbould who
owns a cottage that would be around 400 metres from the new reserve
boundary.
In response to the complaints against Newbould plus
additional information from the Indigenous Bar Association and others,
and the expressed determination of many to engage in organized
political pressure to resolve the matter, the CJC announced on February
13, "An inquiry committee will be held under the Judges Act about Justice Frank
Newbould of the Ontario Superior Court of Justice over complaints that
he made comments and wrote letters on an ongoing land claim issue in
Sauble Beach."
Newbould's letters and words to the town council have
been characterized as self-serving and stereotypically racist. Newbould
ignores the centuries-long misery and injustice suffered by the Ojibwa
people and other Indigenous peoples along the shores of Lake Huron, who
have seen their traditional territory diminished to the point it cannot
sustain an economy for their people. Newbould attacks what little means
the Saugeen First Nation has to engage in commerce saying that any
extension of activities such as charging user fees, selling goods on
the beach, and leasing cottages to vacationers will change the
character of Sauble Beach, where his family owns a cottage.
Justice Newbould's Intervention
 Newbould's complaints
against the Saugeen First Nation
expanding their reserve territory are of a similar character to the
words and actions of a racist colonial state.[1]
Canadians should be
outraged that class privilege was used in this manner to trample on the
rights and dignity of the Saugeen First Nation and derail a land claim
settlement.
Ojibwa and other Indigenous peoples had a thriving
local economy in the Lake Huron territory for thousands of years prior
to colonial seizure and occupation of their land using superior
weaponry and other methods to commit genocide against them. The
Indigenous peoples bravely resisted and survived and now in the
twenty-first century are
demanding recognition of their rights.
The land treaties of the mid-nineteenth century were
racist abominations that gave a fig-leaf of legality to the theft of
Indigenous territory. The Saugeen First Nation never agreed with the
original boundaries of its reserve and has launched repeated land
claims. Newbould in his letter even acknowledges those ongoing
disputes. In a despicable
manner he uses a First Nation petition for the right to pursue
traditional fishing in the mouth of the Sauble River as so-called proof
that the reserve does not extend to the proposed new boundary. Such
cold calculation against a courageous and resilient people who want to
develop their local economy and prospects for their youth can only
emerge from someone who is steeped in the entitlement of class
privilege.
 Steelworkers under
continuous CCAA abuse in both
Hamilton and Sault Ste. Marie have long said that having people who are
not their peers, such as Justice Newbould and Justice Wilton-Siegel,
making decisions that greatly affect workers' lives is not right or
just and should never happen.
Steelworkers feel great empathy with the words of Koren
Lightning-Earle, President of the Indigenous Bar Association, who upon
learning that Justice Newbould may retire before a hearing can take
place expressed disappointment saying, "When Canada talks about this
reconciliation, are they actually going to put those things together
and
actually walk the talk? If he just retires, then the action has ended,
there is no reconciliation, there is nothing."
Steelworkers and Indigenous peoples stand together in defence of the
rights of all,
Hamilton, Labour Day 2006.
Note
1. Destroying the economy of Indigenous peoples and
restricting any
redevelopment has long been a repressive colonial policy. The colonial
aim is to make life so difficult for the remaining Indigenous peoples
that they will leave their territories for the big cities. This allows
the financial oligarchy to seize the land and natural resources without
opposition from the rightful owners.
On the Canadian Prairies, the colonial forces
exterminated the buffalo,
a pillar of the Indigenous economy. Within the situation and faced with
decimation of their population from European diseases and other
attacks, the Indigenous peoples demanded contiguous territories on
which they could engage in modern farming and develop a new economy.
The government responded with contempt, only allowing small
non-contiguous reserve territories generally on the worst land. Still,
the Indigenous peoples on the Prairies took up modern farming on what
was left of their territories and used their communal traditions to
pool their resources to buy equipment and supplies. The colonial state
brutally intervened and passed a nineteenth century law criminalizing
the sale of any Indigenous agricultural commodities outside their own
reserves. The colonial state declared that the communal traditions and
practices of the Indigenous farmers gave them an unfair advantage in
competition with non-Indigenous settler farmers from Europe who were
being encouraged, mostly with
free land to come and populate the
Prairies. This racist law crippled Prairie Indigenous reserve farming
from which the people are still struggling to recover.
It should be noted that the big powers use similar
weapons of economic
boycotts and embargoes for empire-building especially against smaller
countries that refuse to submit to enslavement within the imperialist
system of states. The U.S. imperialists have imposed economic embargos
against Cuba and the Democratic People's Republic of Korea for over
sixty years in a brutal campaign of regime change to bring those
countries under their control.
For Your
Information
Justice Newbould in His Own Words
The Canadian Judicial Council (CJC) notified Justice
Newbould of seven complaints that followed his letters and speech to a
town council regarding his opposition to new boundaries for the Saugeen
First Nation. The complaints questioned whether a Superior Court
justice
who owns property nearby has the right to use his state position and
authority to affect the outcome of a land claim.
The CJC announced on February 13 the Review
Panel's decision
to constitute an
Inquiry Committee into Justice Newbould's conduct. Newbould is an
Ontario Superior Court
justice and team leader of the Commercial Court List located in
Toronto, which
hears cases under the Companies' Creditors Arrangement Act (CCAA).
The decision to go ahead with the inquiry was made by a
Judicial Conduct Review Panel of five members, which, in accordance
with Council's 2015 procedures, promised to bring in additional
transparency and public participation to the process. The panel was
comprised of three members of Council, one puisne judge and one
layperson.
Members of the panel reviewed allegations relating to
the judge's participation in the debate on the proposed settlement to a
boundary dispute that was the subject of a land claim involving the
Saugeen First Nation.
After review of the matter, the panel agreed that, if
proven, the allegations surrounding the intervention of Newbould in the
context of a court case could be so serious that they may warrant the
judge's removal from office.
Nuri Frame of Pape Salter Teillet LLP, a firm that
represents the Saugeen First Nation, told Legal Feeds his
client did not file the complaint against Newbould despite its "deep
concern about his conduct" and that his involvement had "impaired its
interest and impaired the ability of all parties to arrive at a
successful resolution to the
issue outside of trial."
"It is my understanding that Justice Newbould
participated in a community meeting in the fall of 2014 and that
Justice Newbould subsequently wrote one and perhaps more than one
letter to the municipal council up there with respect to Saugeen First
Nation claim regarding Sauble Beach, which is obviously a litigation
going back to the
middle of the nineteenth century with respect to the improper
delineation of where Saugeen's reserve ends and the failure to
recognize the entirety of Saugeen's reserve pursuant to their treaty
of 1854," says Frame.
At the time of Newbould's intervention, the town of
South Bruce Peninsula, which encompasses Lake Huron's Sauble Beach, was
debating whether to accept a land claim settlement that would have
extended the territory of the Saugeen First Nation to within
about 400 metres of Newbould's cottage.
In two letters and a presentation at a public meeting
and possibly other personal pressure, Judge Newbould castigated the
town council for not vigorously fighting the Saugeen First Nation land
claim and encouraged it to be more combative. He spelled out how the
council should proceed to defeat the First Nation's land claim, even
though the
federal government supported it. Newbould asserted the claim was based
on a flawed interpretation of historical land surveys. He offered one
of his lawyer colleagues as a second voice in the battle against the
Saugeen First Nation.
Saying he was "speaking as a cottage owner," he warned
that agreeing to the claim could result in danger for townspeople and
would change the character of the beach. In racially charged language
Newbould writes in his August 25 letter to town council that an
inherent danger exists with joint management of the beach with
Indigenous
people.
Newbould writes, "There is a serious risk in my view
that management agreement/system will not provide sufficient protection
to the town residents. I say that because of how it will operate and
what could well happen."
This complaint and fear of what the ruling elite call
"mob rule" go directly to the issue of the people's control over their
lives. This relates not to a fear only of Indigenous peoples having
control over their lives but the working people generally. The
complaint reveals a fear of losing the class privilege and entitlement
of control the ruling elite
now enjoy.
Newbould expresses his fear of loss of control in the
economic and political spheres, where control has always been central
to those with class privilege who either possess great social wealth or
social positions of power granted from the state. He raises a racially
tinged spectacle of the Indigenous people finding ways to develop their
economic
base, ways that are offensive to someone who wants to use his cottage
as a summer respite without people nearby engaging in economic activity
he considers distasteful.
Newbould writes, "It can be expected that the Saugeen
Band will want to earn income from the beach. It is not in their
interest to fund caretaking for the beach if there is no financial
reward coming in. They earn income from all other lake front property
they own and from the reserve north of Sauble River either from cottage
leases or
charging users of the Beach south of Main Street and from tobacco
sales. There is no reason why they would see things differently if they
are given title to the beach north of Main Street."
Newbould then presents a racial conception of "us"
against "them" in managing of the beach within a management board and
no possibility of finding agreement to develop the entire region
economically and in other ways for mutual benefit.
He writes, "They [referring to Saugeen First Nation]
have said that they intend to manage the beach as they do in the south
end. That is cars, user fees and likely cigarette sales. There are
bound to be very different views of the Band and the cottagers and/or
Town representatives on the management board."
Newbould presents a scenario where the relations
between the First Nation and cottagers and other townspeople cannot be
developed towards mutual benefit and respect. The fear of constant
conflict and loss of income and control underscores his words.
He writes, "If there is no agreement by the management
board, there will have to be mediation/arbitration, which will be a
continuing expense. Settling this litigation on the basis of the
proposal described at the Sauble meeting will in all likelihood not end
the litigation expenses."
Justice Newbould sees the world from his privileged
position as a Superior Court justice where the oligopolies dictate
everything and if the working people want their day in court they must
pay through the nose. For example, under the police powers of the CCAA,
the 2,750 members of USW Locals 2251 and 2724 at Essar Steel Algoma
have paid almost one million dollars in lawyer fees just to have an
official presence in Justice Newbould's CCAA courtroom. The presence of
course does not mean that the steelworkers have any say or power as
that rests entirely with those who control the process and Justice
Newbould himself.
Newbould describes a stereotypical scenario that a
Saugeen First Nation "bursting with cash from the federal government"
will overwhelm the town with lawyers' fees and endless litigation and
will never be able to develop respectful and mutually beneficial
relations with anyone.
He writes, "The Town at the time of any dispute might
not have an appetite to spend money this way on continuing
mediation/arbitration, particularly if the Saugeen Band will be in a
position to outspend the Town with income coming from the Federal
government and from their anticipated casino. Unfortunately, under the
proposed
settlement, the town residents who have cottages or homes at Sauble
Beach will not have any direct input into such a decision, and they
will be the ones affected. There is no assurance that these people will
be listened to by the Town council of the day."
 Interesting in this regard
that Justice Newbould
complains about the lack of democracy and control for the townspeople
over affairs that affect them. This complaint is general amongst
Canadians on the need for democratic renewal to develop new democratic
and social forms and a new system of governance that allow working
people a say
and control over their working and living conditions. For Indigenous
peoples, since the colonial military occupation became a dominant
Canadian state, they have been the subject of continuous abuse and have
had no control over their lives and territory. They have been blocked
at every turn in efforts to build their lives, economies and
nations.
Scott Robertson, Vice-President of the Indigenous Bar
Association describes Newbould's 2014 intervention as a
significant factor in derailing the Saugeen First Nation's "hard-fought
negotiations" to resolve its land claim. The matter went back to the
courts where it continues today. Robertson told the media that it was
improper for a
member of the Ontario Superior Court to take such a public stand
outside the court on an issue that affected him personally and which he
knew could wind up before the Superior Court. His position within the
state and words carried great weight in the Town Council and smashed
any possibility of coming to an arrangement without continuing
costly litigation.
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