The amendments to the Hydro Corporation Act go beyond what the Progressive Conservatives originally proposed. The new legislation will create a Crown corporation that will not only "engage in activities" related to hydrocarbons, it will do so in Newfoundland and Labrador and anywhere else on Earth. More importantly, the new Hydro corporation, will also be given responsibility for any other enterprise or activity based solely on the approval of cabinet.
Moreover, the cost of this new multi-headed venture will be borne in one fashion or another by the residents of Newfoundland and Labrador. As a Crown corporation owned entirely by the provincial government, Newfoundland and Labrador Hydro's [Hydro; Hydro corporation] debts are added to those of the provincial government and its other agencies even if its revenues do not necessarily count toward the provincial government's operating budget.
Additionally, though, the second clause of the new bill exempts the new Hydro corporation from a restriction in the Electrical Power Control Act, 1994 (EPCA) that an electricity producer or retailer is only involved in the production or sale of electricity. However, under the EPCA, the public utilities board is still required to set Hydro's electricity rates to provide the Crown corporation with "sufficient revenue" to achieve and maintain a sound credit rating from international lenders.
Williams' original plan
Danny Williams' expressed goal in October 2003 was to convert the Hydro corporation into a Crown corporation that would "retain equity in the province's oil and gas resources", "absorb all the expertise it can from the major oil companies, so that the province will have the capacity and expertise to participate in and benefit from decisions regarding exploration, production, and processing of oil and gas in the province", and, "work with the major oil companies to develop natural gas as a competitively priced alternative energy source for the province, and for transportation to Canadian and U.S. markets."
The Progressive Conservative 2003 campaign policy manual, called variously the Blue Book or "Danny Williams' plan", indicated that the new energy corporation, i.e. the one involved in oil and gas, might be established as a Crown corporation separate from Hydro. While the Bond Papers has previously pointed out the potential problems in resurrecting the Peckford-era petroleum corporation, the way this corporation is established is important: the provincial government has made a conscious decision in its new legislation to reject other options with their inherent advantages.
Statoil and Norsk Hydro, two examples often cited by Premier Williams 1, effectively operate as private sector companies despite being owned, respectively, 71% and 43% by the Norwegian Crown. This arrangement is important since the companies operate according to sound business principles and are accountable not only to the Norwegian legislature but also to the private sector shareholders.
By contrast the Hydro corporation in Newfoundland and Labrador is little more than a department of government answerable by law to the energy minister, but in practice to the Premier. So close is the relationship that Hydro's chief executive officer served as the lead provincial negotiator with the Hebron consortium. The obvious conflict of interest in this situation was ignored by government, but not by the private sector companies in the Hebron group.
Over the past decade and a half, these two Norwegian companies have ceased to serve as instruments of state petroleum policy on matters such as ownership, control and development. This is diametrically opposite to the Williams' administrations plans for the new Hydro corporation. The Blue Book clearly establishes a policy role for the new Hydro corporation by giving it responsibility for ensuring "the province will have the capacity and expertise" to participate in and benefit from" oil and gas development.
Strengthening the private sector
One of the challenges facing Newfoundland and Labrador in the past half century has been the growth of a strong private sector with access to local capital. Since 1949, the experience of the Smallwood, Moores and Peckford periods has been a heavy reliance on state intervention and state support for industrial development in most sectors. The legacy of this approach is mixed and in some cases downright sorry. Even in the fishery sector, successive governments have poured public money into private sector companies until, ultimately, both the provincial and federal governments created Fishery Products International out of the debt-ridden mess of failed processing companies. [On the relationship between the federal and provincial governments and the Newfoundland and Labrador fishing industry, see Miriam Wright, A fishery for modern times: the state and the industrialization of the Newfoundland fishery, 1934-1968, (Don Mills, ON: Oxford University Press, 2001)]
The Wells administration's 1992 Strategic Economic Plan, by contrast, emphasized government policy aimed at strengthening the private sector, diversifying the economy and increasing the ability of local companies, including in the oil and gas sector, to compete effectively on a global basis. Crown corporations were sold off or shut down. Peckford-era legislation to provide for a petroleum corporation was repealed since Peckford had never implemented it and the Wells administration saw no purpose in having the state operate in what was deemed best left to private business. The major exception to the divestiture of state-owned corporations was the effort to merge Newfoundland Power and Newfoundland and Labrador Hydro as a single private sector corporation.
Williams' new Hydro corporation returns to an older model based on government subsidy and government dependence. Beyond the attractiveness to some businesses of relying on whatever contracts they can secure from the new Hydro corporation, the political and financial muscle of the state-owned company will likely make it considerably more attractive an investment than a private sector venture, since it will always carry with it a government guarantee of its operations and expenditures. The end result will almost inevitably be a weakening of the local private sector.
Controlled by whom? Accountable to whom?
Simon Wong, an international expert in corporate governance at McKinsey and Company in Washington, D.C., has noted that state-owned enterprises have significant governance problems that impair their ability to perform effectively and efficiently. Conflicting missions, poor political guidance, lack of public scrutiny and a board lacking authority are among the weaknesses of state-owned enterprises, according to Wong.
These two latter points are especially obvious in the local example. Note the extent to which Premier Williams has effectively exercised total control of the Hydro board, appointing his confidants to positions of responsibility. Williams has also been able to continue the practice, established under Brian Tobin and Roger Grimes of controlling the Lower Churchill project office, with its funding coming from the Hydro corporation. The expenditures by this office are not scrutinized by the auditor general or the House of Assembly.
Beyond those issues, the third clause of the Hydro amendment bill creates a situation which is virtually unprecedented in local political history. It gives authority to cabinet to assign to the new Hydro corporation any activity which it approves. With passage of this bill, public expenditure may be made on any purpose with no disclosure to the public other than that coming with publication of an order-in-council or the minimal disclosure required in the Williams administration's accountability legislation.
Even in that respect, the Hydro corporation - and by extension the Williams administration - is not complying with provisions of the Transparency and Accountability Act. No strategic plan has been issued, despite significant changes having already been made to the corporation in the past three years. Hydro has not published an annual report on its website for 2005.2 As recently as Monday, May 15, 2006, Premier Williams confirmed to the House of Assembly that his government has committed to an expenditure of upwards of $9.0 billion on the Lower Churchill project without benefit of even the most basic of accountability tools: the business plan. One can only infer that there is likewise no business plan to accompany the development of the Hydro corporation as an oil and gas venture.
Unlimited public liability
Along with unlimited cabinet authority to spend what is effectively public money through the new Hydro corporation without much, if any, prior public disclosure and limited public accountability must go the obvious point that the residents of Newfoundland and Labrador hold an unlimited liability for Hydro operations, its successes and failures. Hydro is a Crown corporation owned entirely by the Government of Newfoundland and Labrador. As such its assets and liabilities are functionally those of the public at large.
At the same time, as a producer of electricity sold in the province, Newfoundland and Labrador Hydro's rates charged to customers is regulated by the public utilities board under the Electrical Power Control Act, 1994. [EPCA] The proposed amendment bill also includes giving the new Hydro corporation and exemption to that section of the act which currently provides that an electricity company can only be engaged in producing or retailing electricity in the province. However, in determining electricity rates, the PUB is directed by the EPCA to provide the Hydro corporation with sufficient revenues from its electricity sales to allow it to achieve and maintain a sound credit rating.
As an electricity producer, Hydro's financial picture would be easy to see and comparisons could easily be drawn with electricity producers across Canada. The PUB has been able to assess the accuracy and reasonableness of the income requirements of Hydro from its domestic sales and, where necessary vary a rate request to satisfy a broader public interest in the availability of affordable electrical power. As a multi-sectoral company only one portion of which is an electricity producer, the new Hydro may now be able to apply for electricity rate increases to fund or otherwise offset its non-electricity activities.
Conclusion
The current administration has already justified its activities in the energy sector on the basis of pride and self-reliance, distinctly emotional issues, as opposed to financial or other measurable criteria. One can expect that any issues related to the new Hydro corporation will be couched in similar terms. All else will be dismissed as irrelevant or speculative.
Had it been concerned only with creating involvement in the oil and gas industry, the Williams administration would have proposed legislation that permitted those easily defined and relatively limited set of activities for a company sub-ordinate to or separate from Hydro. One might expect such a company could involve a partnership between a Crown corporation and private sector companies in the fashion of Statoil or Norsk Hydro.
The most obvious explanation for the Williams administrations approach is that it sought to create an entity which was controlled directly and entirely by cabinet, with limited requirements for public disclosure. The new Hydro corporation, as structured, will allow cabinet to direct Hydro expenditures much as it has done in the past, but over a wider range of activities, and based solely on an order-in-council.
In effect, Bill 1 will create out of Newfoundland and Labrador Hydro a hydra corporation. There is no limit to the range of activities in which it may engage with only the most rudimentary public scrutiny.While the public will unquestionably bear the full financial risk of this venture, they have no information on which to assess the risk of the course on which their provincial government is already fully engaged.
However the notion of accountability is much broader than that whether one is talking of current political values or the scrutiny to which corporations have been subjected to in the wake of scandals such as Enron.
In Newfoundland and Labrador, we need only look to a litany of failed public ventures to see the folly of granting to any administration - irrespective of the talents of its leader - the unfettered right to commit public money without public debate or disclosure. Our political landscape is littered with rubber boots, eyeglasses, gloves and rotting cucumbers.
The Williams administration has offered no explanation of its failure to comply with its own legislation on transparency and accountability largely since no one has asked a cabinet minister about the issue. The usual reply has been that the government will be accountable to the public at election-time.
Newfoundlanders and Labradorians, as shareholders in - as the sole owners of - the new Hydra corporation, deserve no less a level of accountability than that held by shareholders in the private sector. They demand - and receive - information on the risks and rewards before endorsing any venture as fully-informed participants. At the very least, those shareholders can sell their interest and move their money elsewhere if they do not support management's decisions.
Residents of Newfoundland and Labrador have no such luxury. Prudence - the hard won caution of experience - dictates they look more cautiously at government plans, lest they find themselves facing a financial hydra, if not under this administration than under some other administration in the not-so-distant future.
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1 Premier Williams has also used Hydro Quebec as a model for the new Hydro corporation. Under s. 22 of the Hydro Quebec Act, the company's objects are "to supply power and to pursue endeavours in energy-related research and promotion, energy conversion and conservation, and any field connected with or related to power or energy."
Hydro Quebec has not statutory authority to assume responsibility for any activity which the Lieutenant Governor-in-Council may approve, as provided for the new Newfoundland and Labrador Hydro corporation. Rather, Hydro Quebec's mandate is to supply power and engage in energy-related activities.
2 This was written and originally posted on 16 May 2006. The 2005 Hydro annual report was tabled in the House of Assembly on 16 May 2006. As of 0533 hrs 17 May 2006, it was not available on the Hydro website. Hydro has still not produced either a three year strategic plan or a business plan for the Lower Churchill or the expansion of the company's book of business even though this is required by the Transparency and Accountability Act.
Annex A:
AN ACT TO AMEND THE HYDRO CORPORATION ACT AND THE ELECTRICAL POWER
CONTROL ACT, 1994
Analysis
HYDRO CORPORATION ACT
1. S.4 Amdt.
Supply of power
ELECTRICAL POWER CONTROL ACT, 1994
2. S.24 Amdt.
Restrictions on business
Be it enacted by the Lieutenant-Governor and House of Assembly in Legislative Session convened, as follows:
HYDRO CORPORATION ACT
RSNL1990 cH-16 as amended
1. Section 4 of the Hydro Corporation Act is amended by renumbering it as subsection (1) of section 4 and by adding immediately after subsection (1) the following:
(2) In addition to the objects referred to in subsection (1), the corporation may, in the province and elsewhere, engage in activities related to the exploration for, development, production, refining, marketing and transportation of, hydrocarbons and products from hydrocarbons.
(3) Notwithstanding subsections (1) and (2), the corporation may engage in those other activities that the Lieutenant-Governor may approve.
ELECTRICAL POWER CONTROL ACT, 1994
SNL1994 c E-5.1 as amended
2. Section 24 of the Electrical Power Control Act, 1994 is amended by adding immediately after subsection (2) the following:
(3) This section does not apply to Newfoundland and Labrador Hydro.
©Earl G. Tucker, Queen's Printer