Sackville manager says onus was on the town, not CN, in property swap

Coun. Michael Tower

Sackville manager Jamie Burke says the town was in a difficult position when it was negotiating with CN to acquire just over 6.7 acres from the railway for the construction of a big flood control pond south of St. James Street.

He was responding during Monday’s special council meeting to a question from Councillor Michael Tower who asked whether municipal officials made any attempt to find out from CN what they had buried on the property.

The town has since discovered about 14-thousand tonnes of soil laced with petroleum, aromatic hydrocarbons, heavy metals and other contaminated materials that will cost taxpayers half a million dollars to clean up.

“Everybody in town knew that CN had junk in that thing and you had enough warning from everybody around town about it,” Tower said.

Burke responded that he was the main person involved in the land transactions with CN.

“CN was in a duty to disclose if they had any contamination on the property,” Burke said. “They did not disclose that they had any.”

He added that since CN had an office on the property and still needed one, the town offered to trade the AutoPlus building it acquired at 124 Crescent Street.

As part of the deal, CN indicated it would give its old property to the town on an “as is” basis.

“We had conversations with CN’s real estate team as we were going through the process,” Burke said. “They were not interested in any type of geo-technical investigation being done on that property.”

He said that when the contamination was discovered, the town asked CN for any information it had about what might have been stored on the site, but the company said it had no information in its files.

Town manager Jamie Burke

“This has been a difficult, difficult situation from the very start,” Burke said. “It is an unfortunate situation and, as we’ve said from the very start, thankfully the budget allows us to be able to remove the [contaminated] material; removing the material, we still think, it’s the right thing to do.”

Mayor John Higham asked Burke to respond to his summary of the situation in which the mayor said: “CN had no interest in providing the land if there was an option to look for contaminants before exercising that option.”

“I can’t say specifically that they’ve indicated that they weren’t interested in that, but I’d be very surprised if they would have permitted a geo-technical investigation of any sort,” Burke answered, “because what happens is that sometimes when you find contamination on your property, there’s then an obligation for you to clean it up.”

Burke added that CN needed a new office and offered the land behind Atlantic Towing on Lorne Street where its old one sat on an “as is, where is” basis.

“‘You need to get us an office because we have an office in that area where we [the town] want to put the pond,” Burke said summarizing CN’s position.

“The onus was on the municipality,” he concluded.

To listen to this two minute and fifty second segment of Monday’s town council meeting, click on the media player below:

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23 Responses to Sackville manager says onus was on the town, not CN, in property swap

  1. Wrayton says:

    I am so glad the Town has stepped forward to clean up this contamination. Our marsh and our town will be better off because of it.

    Like

  2. Rima Azar says:

    Could this site help in trying to understand what is going on and how to address?

    https://www.legalline.ca/legal-answers/who-is-responsible-for-cleaning-contaminated-land/

    Of course, cleaning is what needs to be done….but who should pay the bill? And again, why did this happen?

    It is hard to believe that incompetence alone can explain the situation.

    Liked by 2 people

  3. Sharon Hicks says:

    Thank you Bruce Wark for this next report on this timely subject.

    It seems we are getting closer to the central core issue in this ongoing saga of contaminated soil, which for some reason seemed to be a huge surprise to the central players in what has become a ‘comedy of errors’. To borrow a phrase from the ubiquitous Mr Murphy – “everything that could go wrong, did go wrong.”

    Mr Burke frequently references “we” in regard to various stages in the process, but does not mention who else was involved with him on this matter. Who is the “we” he is talking about?

    At the same time, he has also freely admitted that he was the main person in charge of the now-questionable land transaction with CN.

    Mayor Higham has told us pointedly that the Town had absolutely ‘no reason to suspect any contamination’. At the same time, Mr Burke has told us that CN was “not interested in any type of geo-technical investigation being done on that property.”

    SO, the question is – WHY WOULD THE TOWN EVEN APPROACH CN ABOUT SOIL TESTING UNLESS THEY ALREADY HAD SOME REASON TO SUSPECT CONTAMINATION MIGHT BE THERE?

    ALSO, where was the town’s legal advisor(s) during this whole negotiation process? Would a reputable lawyer advise their client to sign such an “as is” type of contract without being fully assured there was nothing hidden ‘beneath the surface’? Would a ‘regular citizen’ take such a risk if their own money was on the line?

    Yes, it’s true that CN had a LEGAL RESPONSIBILITY to disclose any contamination on their property, prior to the sale. And yes, it’s also true that if contamination is found, there is a LEGAL RESPONSIBILITY for the landowner to make sure it is cleaned up – despite Mr Burke’s repeated insistence that the town is cleaning up the contamination because it is the “right thing to do”.

    BUT, it’s also true that Mr Burke had a MORAL RESPONSIBILITY, with the actual land purchase, to safeguard the best interests of the town as a whole. That also would be the “right thing to do”.

    As Mr Burke indicated, “the onus was on the municipality”.

    And who represented the municipality on this ultimately very expensive transaction?

    By his own admission, it was Mr Burke himself.

    So, where do we go from here?

    Like

  4. Harold says:

    In 1998 we bought a house in Sackville. There were two oil tanks in the basement. As a condition of sale the real estate agent told me that both tanks would be filled and the cost would be included in the overall house price. I refused this condition and stated that if these tanks were filled I would not purchase the house. Even in 1998 I knew that if there was any contamination on my property, I would be responsible. I had the tanks removed later that year. As they were being dragged up the wooden steps out of the basement the bottoms were ripped out — the metal was rusted through. Luckily, they were empty.

    I knew that I could have faced a significant fine for oil contamination, so I was cautious. Perhaps decisions are different when using other people’s money.

    Liked by 2 people

    • Sharon Hicks says:

      Harold –
      That’s a great example of how “due diligence” is properly done. One examines ALL possibilities, imagines the WORST CASE SCENARIO, analyses the information using COMMON SENSE, and ACTS ACCORDINGLY.

      As you mentioned too, when one’s own money is on the line, it does seem that one is more cautious than if one is playing with ‘other people’s money’.

      Despite the Mayor’s ongoing claims that it came as a ‘COMPLETE SURPRISE’ when the contamination was ‘DISCOVERED’ by the contractors, we now realize they HAD TO HAVE SOME IDEA THERE WAS CONTAMINATION THERE, since it has been made clear they heard it from many local sources, and they have now indicated they unsuccessfully tried to get CN to agree to soil testing.

      ALSO, in this case, THEY HAD THE PLANS FOR THE POND COMPLETED BEFORE THEY ACQUIRED ALL THE PROPERTY THEY NEEDED. That could have had some bearing on the decision to accept the ‘as is’ offer and ‘hope’ that nothing negative would come of it.

      With all the information coming forward lately on this issue, it is becoming more and more clear that the time is at hand for a completely independent investigation of this whole matter.

      Like

    • We took out the oil tank when we bought in 2011 – so we are stakeholders in the old fashioned sense .. not the kind that move here and join a collective without any real financial stake in the town .. speaking of the change agent Harold hired for the Renaissance Sackville gig who wrote a report that said the old fire hall could not be rehabilitated for the town and then enabled the sale of the premises to Lafford only to proclaim a new venture in those premises called the “Commons Hub” – you’ll recall that won’t you Harold? We converted to electric home heaters and it was money well spent .. but never would I expect the onus of any clean – up to be on anyone but the owners [ us ] for any problems that arise if we had remained on oil heating .. the town owns contaminated lands and needs to clean up those lands .. that’s how its done in NB .. pollution is taken care of .. we are sort of a responsible society that way .. that’s why I don’t understand why anyone would suggest that Canada does not do its part for the environment .. the truth is we do more than most nations on the globe. Maybe the youth could stop protesting now .. or at least learn to protest Saudi Oil conflict oil and not ethical oil in Canada.. because there is a big difference.

      Like

      • Rima Azar says:

        I also prefer Canadian oil to Saudi oil for the reason you mentioned. At least, our Canadian oil is produced in a democracy (thus far😊— that was a bad joke).

        Although far from being perfect, we have environmental laws in Canada and our working conditions are surely more ethical than the practices of countries like Saudi Arabia (or Iran).

        As written by Mr. Mario Dumont in the “Journal de Montréal” (January 26, 2015), Canadian women can occupy higher administrative positions in the oil industry and we can all become shareholders (OK at least those of us who want to😊). I will also echo his words in my own way: Blessed are Canadian women because they do not have to live under the Sharia law like Saudi women. In other terms, we are lucky to have secularism as well as equality between men and women in our country. I hope we will know how to preserve (and at times defend) both equality and secularism without falling into radicalism or… stupidity.

        This being said, I say Happy Eid to ALL Muslim women (especially the Observant ones), including my fellow citizens of Canada… as well as citizens of Saudi Arabia (and Iran too)!

        Like

      • Wrayton says:

        Absolutely right Rima, unless of course you happen to be an Indigenous woman or girl where Canada’s actions in recent decades amount to “genocide”.

        Hey, maybe our oil isn’t so ethical after all.

        Like

  5. Norm Cole says:

    Accountability is where the buck stops.This should of never have happened and i feel that insted of passing the buck on and on all these profesionals per say should be accountable for their actions.We have lots of people on pay roll from lawyers to engineers,but no one seems to reliaze this is tax payers money being wasted while streets go undone. And what was is being fixed 940 hospital aera was and is a shameful mess that must be fixed properly .Next time dont be so hard on a taxpayer asks a question and what to charge for time on a question

    Liked by 2 people

    • Sharon Hicks says:

      Norm …
      Your words certainly ring true. ACCOUNTABILITY is definitely the key word here, or rather “lack of it”.

      Even though Mr Burke has self-identified as being the ‘main figure’ in this ‘contaminated land acquisition fiasco’, it’s also clear that he could not possibly have been the ONLY PERSON INVOLVED.

      For one thing, his position on the town hierarchy chart indicates he works directly under the guidance of the Chief Administrative Officer, and therefore would theoretically have to gain approval from the CAO for any major decisions he makes.

      So we need to ask ourselves – WHERE DOES THE BUCK ACTUALLY STOP?

      Like

  6. Kelly Alder says:

    Thanks again Bruce for the valuable information on this issue. As most people noon time on a weekday isn’t a great time to try and attend a meeting so as always I try and look at your site for the details. Not sure what we would do if you weren’t reporting on these things so accurately. Nice trade off for the old building to the one CN got in the swap. And I’ve heard someone was able to get a very nice sum of money for a tiny piece of land they had where some of these ponds are being built. Hopefully being in the infamous exit 506 flood plane I will be able to get a good dollar from the town when they decide the area is no longer of any use, except for more holding ponds. Fingers crossed.

    Liked by 1 person

  7. Rima Azar says:

    Watch out Sharon, you could be accused of cyber hate speech :).

    OK, seriously, please forgive me… Despite my expressed solidarity with my fellow citizens on this matter, I could not help not to joke: “Bonjour la censure” :(, I tell myself these days when reading the news… Strange times. Indeed, the world seems upside down to me: In Canada and the Western World we see such phenomenon and in other places I know (and paradoxically), there is more freedom… and surely more freedom of thought. I mean less self-imposed political correctness. Sometimes I even wonder if my brain is jet-lagged (even without travels) to the point of confusing geography?

    This being said, like you, I appreciated reading all the comments to this story. Thank you Mr. Wark and thanks to everyone… I think people are lucid… perhaps more than I ever suspect. Given all this, now what?

    Liked by 1 person

  8. Louis says:

    While it might have been reasonable to swap/buy the property in the full knowledge of the required cleanup, this suggestion has not been made by the officials involved and thus let’s note that it’s (a) obvious from what we’re being told that a reasonable/competent person would have foreseen the problem; and (b) that the Town doesn’t want to admit to having foreseen the problem.

    The question thus becomes: Are we being deliberately lied to, or is the Town unreasonable/incompetent?

    In a way, it hardly matters, because the conclusion as to what we should do is the same.

    Liked by 2 people

  9. Percy Best says:

    I do wonder if a competent engineer would actually tell us they thought we needed ‘any’ holding ponds on that side of the CN Railway Tracks where they are being dug now. Other engineers that we have talked to say there is no need and they state that a small dredged holding pond that would be adjacent a new 6′ aboiteau is all that is needed.

    This new gate structure would only be closed for approximately 5 hours at a time while the tide is in and as soon as the gate opened, all backed up water in the small holding pond would be emptied out.

    It has only been Crandall that says we need these ponds and control structures and the more expensive and elaborate they can design them then the more money they make.

    Time to rethink this whole project, this time with citizen involvement.

    Liked by 2 people

  10. Rima Azar says:

    So Wrayton, does that mean you spoke with Percy Best? I hope the coffee was tasty :).

    Liked by 3 people

  11. Rima Azar says:

    Hello Wrayton (whomever you are):

    Now is my turn to say the same— absolutely and sadly so ☹. Yes, Canada is indeed VERY FAR from being perfect. This is indeed shameful for us as citizens and as human beings…

    This being said, I stick to what I wrote: Compared to other countries, Canada remains a piece of cake… I say this because each country has its challenges and its skeleton in the closet, so to speak. Perhaps Canada has more scary skeletons?

    This being said, there is no word to describe these HORRIBLE crimes of so many girls and women over many years. These women could have been my sisters, daughters, or cousins. I can only dare to imagine one single drop of the ocean of their families’ sorrow. May their parents find inner peace day after day, month after month, year after year.

    I clearly see that, in the grand scheme of things, how this tragedy is the historical consequence of the “cultural genocide” ☹.

    It is also particularly disturbing for me to just think that negligence, indifference, and surely racism (I do not use this word lightly usually) most likely played a role in this tragedy (e.g. police not doing its job; a whole country being paralyzed by years of political rectitude to the point of postponing investigations that could shed light on several factors/people/life conditions we do not want to name, etc.)

    This being said, in my mind, this tragedy as revolting as it is not a “genocide”, sorry.
    I say this even if the report repeats the term so many times and even if Mr. Justin Trudeau has endorsed this term. I happen not to agree with him on that one, although I FULLY agree with his apparently compassionate words and likely good intentions as our Prime Minister, even ahead of federal elections when it is harder to trust politicians. He is a father. He is a son. He also has a heart. I sometimes just hope he knows what he is doing… As far as I am concerned, I think the word genocide is exaggerated and the latter does not serve the cause, I am afraid. Whether we use the term genocide or not, recommendations of this report must be implemented and ASAP. This is what should matter: Canada must and should do better!

    I happen to believe it is necessary to call things by their names (In French, we say, “appelons un chat un chat”. I mean to say: Call a spade a spade). “Genocide” implies that the whole Canadian state in all its levels of governance and executive functioning came together to exterminate these women. Do you believe this to be true? I do not. The word genocide consists of a Greek prefix (genos), which refers to race or tribe, and I believe a latin suffic (cide), which is systematic killing. We have to be careful as the use of words lightly empties them from their meaning. It is a dangerous game, I am afraid. We are doing the same with other terms these days: Racist became the biggest insult of all. We can say the same about islamophobia, white supremacist, etc.

    In the Arab world, if we call someone: “Israeli spy”, it is the worst insult ever and the person risks being imprisoned (sometimes wrongfully by being framed, as it sadly happened to an artist recently, even in the more democratic Lebanon). Perhaps Lebanon can comfort itself because in nearby places, the person risks being killed on the spot. If we use words too lightly, they will stop meaning anything as they can mean everything or nothing. We also risk using words as weapons to score ideological or political points or to silence people (as it happens in witch hunting). Playing with words can backfire on us one day. Plus, sadly it does not effectively prevent actions of real racists or white supremacists.

    If you do not see my point yet Wrayton, ask the Honourable Romeo Dallaire about genocide… He can describe a genocide to you…. If you happen to know Louis, ask him about some of his ancestors who escaped Europe (smartly before the genocide of the Jews). Ask the Armenians of Turkey (even if Turkey does not admit it). Again, ask Lieutenant-General Dallaire (our Canadian hero) to tell you about the genocide in Rwanda… or read his book “Shake hands with the Devil”.
    Last but not least, I find it both odd and unfair how this report blamed Québec (and its SQ) when most of the crimes happened out West or in Ontario, if I am not mistaken. Are we trying to score old political points of some sorts when the blood of these women has not dried yet ☹?

    It is my hope that this report will not be another forgotten governmental report, federally and provincially. I say this and I am usually optimistic by nature.

    Like

    • Wrayton says:

      Romeo Dallaire is a former member of the Canadian military, an institution used by the state to perpetrate violence against indigenous peoples. Of course he is going to disagree with the term genocide. Perhaps it’s better to study our history and listen to the victims and ask them wether it is genocide or not, which is exactly what the inquiry just did and just reported. Canada is not a “piece of cake” for everyone.

      Like

  12. Rima Azar says:

    Do you love (or still love) Canada, Wrayton?

    Like

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