There are a great many things troubling about Danny Williams and the Hebron/offshore board file.
As Williams continues to defy the law in his efforts to install St. John's mayor Andy Wells as the head of the board regulating the offshore, one of the most troubling things becomes concern that Williams may have been attempting to rig the entire Hebron negotiating process all along.
Williams accused the oil companies of negotiating in bad faith, back in April when the talks collapsed. He may have been referring to the slip-and-fall lawyer's definition of bad faith, namely an insurance company attempting to deny legitimate benefits detailed in a contract. He didn't state that, however, leaving only the accusation that the oil companies had acted dishonestly or had acted one way while intending to do something else.
But in the realm of contract negotiations, especially commercial contract negotiations, bad faith takes on another meaning, and that is a troubling implication. Article 2.15 of the Principles of International Commercial Contracts states that "[a] party is free to negotiate and is not liable for failure to reach an agreement."
Judge for yourself from Williams' own statements if the Hebron partners would not have been held liable for failing to reach an agreement on his terms, if Williams had his druthers. Judge for yourself - and this is the key implication - what legitimate company would do business with an administration under these circumstances.
We noted back in April the possibility that Williams' efforts to get Andy Wells at the offshore board may have been nothing more than an attempt to unduly stack the negotiating process in his favour.
Since Williams continues with his fight and since he is likely to launch a fight with the offshore board should it approve a recent development application at Hibernia, it is timely to revisit that earlier post, titled "Why Danny wanted Andy...At the offshore board."
The Premier and his supporters will insist that his motives are pure, that he only has the best interests of the province at heart. However, claims of being Robin Hood have long been rejected by courts as a defence for bad faith, for saying one thing and doing another.
In reality, such an argument, already offered up by Williams, is simply a trumped up version of the old argument that ends justifying means. That too has been widely rejected, especially for the when it is little more than an excuse for all manner of abuses of power against individuals and groups.
As often as Danny Williams trots out this defence of his noble intentions, it has surely worn through in the case of Max Ruelokke. Williams has publicly committed twice to abide by the results of a process. In late 2005, he committed to abide the decision of the panel he approved to select a new chairman and chief executive officer for the offshore board.
He did not.
Likewise in July, he committed to abide by a court decision that came about solely because Williams had failed to live up to his earlier commitment to abide by the first process.
He likely will not do so in this case either, claiming as he has that there is a process to be followed and that he is entitled to appeal to the Supreme Court of Canada if need be.
But truth be told even if the case finds itself in front of the learned nine in Ottawa and they too share Mr. Justice Halley's justifiably dim view of Danny Williams' actions respecting Ruelokke, no court can compel the Lieutenant Governor in Council to do anything. Ruelokke's appointment is made by the Council, after all and that is the black letter of the Atlantic Accord (1985).
Williams can simply fail to act for as long as he wants and that, sadly, is the process on which Williams may well ultimately rely. Williams may have mounted flimsy if not laughable arguments by proxy in front of Mr. Justice Halley but he is smart enough to know that ultimately his power on this matter is absolute.
That is a much larger spectre which hangs not merely over Max Ruelokke, but over us all.
