30 July 2013

Voids and Spatter #nlpoli

Watch too many crime shows and after a while a few of the ideas start to sing into your skull.

Take blood spatter for example.  In some kinds of violent death, lots of blood will fly around.  The drops leave a distinctive spray pattern that can tell you lots about what went on. 

And then there is sometimes the bits of the pattern that are missing.  There is sometimes a void, a gap where something that the blood spattered on is missing.

The void – the missing stuff  - sometimes tells much more than what is there.

Last week, natural resources minister Tom Marshall called Bill Rowe on Open Line to shoot the shit about this and that.  He started off by talking about former Premier Brian Peckford and his call for the provincial government to release information about Muskrat Falls.

Be Vewy, Vewy Quiet

Tom spent a long time reciting stuff everyone knew.  Then at about the 10 minute mark of the 13 and a half minute interview, Tom expressed his amazement that people wanted to know the provincial government position on the law suit or hear the legal opinions that backed up CFLCo’s position on the Hydro-Quebec suit.

Remember the Water Rights Reversion Act case in 1984, Tom cautioned, when the courts referred to comments made in the House of Assembly by politicians and ultimately undermined the provincial government’s case.  Then Tom made a point of noting that the legal opinions were over at CFLCo and not “over here” in the Confederation Building because they are privileged.

For those who don;t know, Tom was referring to a key part of the Supreme Court of Canada decision in a reference that originated in the Supreme Court of Newfoundland and Labrador over the Water Rights Reversion Act.  The water rights in the title of the law referred to ones granted to CFLCo in the 1961 lease and that formed the basis of the Churchill Falls project.

The cabinet asked the court to give its opinion on a series of questions related to the Act.  In its decision, the Supreme Court justices determined that the Act was not just an expropriation of property within the province.  They found that it was actually aimed at rights enjoyed by Hydro-Quebec under the Power Contract:

A finding that the Reversion Act is aimed at the rights of Hydro-Quebec under the Power Contract would render the Act ultra vires [outside Newfoundland and Labrador’s provincial jurisdiction] only if the rights so attacked are situate in Quebec beyond the jurisdiction of the Legislature of Newfoundland. Little argument was advanced on this issue and the case seemed to proceed on the general assumption that the rights of Hydro-Quebec were situate in Quebec. The fact, of course, is that Hydro-Quebec has the right under the Power Contract to receive delivery in Quebec of hydro-electric power and thereafter to dispose of it for use in Quebec or elsewhere as it may choose.

The justices did not rely on mere statements by individual politicians, as Tom suggested.  Rather, they quoted from some of the provincial government’s public information pamphlets that put the Reversion Act in the wider context of efforts to change the 1969 Power Contract.

Just think about that for a second.  Then,  remember that Tom Marshall is also the province’s attorney general.  In other words, he provides cabinet with its legal advice.  He’s not the only person to do so, but Tom is the key guy.

So if he is telling everyone it would be a good idea to belt up for fear of disclosing what is really going on – and thereby screwing up a court case -  you have to wonder about that a bit.

Maybe this is some sort of government policy.  Maybe if we went back and looked at a few key pieces of legislation, for example, we might notice some sort of pattern of missing information.

Looking for Missing Bits

You don’t have to look very far.


Amendment to the Electrical Power Control Act that not only created the requirement for a water management agreement on a river with more than one hydro-project, but also gave Hydro-Quebec an exemption.

Pretty big deal, especially in hindsight.

Introduced on the second last day of the session.

Approved the last day after a really short debate.

On second reading, the minister responsible for the bill gives a speech to tell everyone what the bill is all about.  This is where the government let’s us all in on what they are doing.

Kathy’s introductory speech for the EPCA amendment consisted of 800 words in 69 lines.  That includes all the Mr. Speakers in there.  Kathy is famous for them. Here’s what she said about the part of the bill that exempts the previous contracts:

The amendment will ensure the delivery commitments under existing contracts are honoured, including the 1969 power contract for the Upper Churchill. This protection is explicitly written into the amendment.

Two sentences.

29 words.

Notice the void?

There’s no explanation of why they had exempted the prior contracts.  “Why” is a pretty big deal when you are introducing a new law or amending an old one.  It’s a logical question.  Someone says “we are going to do this.”  People would want to know why.

No “why”. 

To give a comparison, a far less significant and far smaller amendment to the Historic Resources Act in the same session took  about 100 words from Tom Hedderson to introduce.

Curious, eh?

Go check Hansard and you’ll notice something else. The opposition parties spoke longer than Kathy did. They also spoke  based on nothing more than the government briefing delivered earlier the same day that the legislation went to detailed debate. That means that they effectively said only what the government wanted them to say. The whole thing was wrapped up in two days with no substantive review or debate. Whatever the government side was doing, they received the active support of the opposition parties.

Now flip to the next year and check the official record of the debates in 2008 on the water rights bill. The government distributed, debated and passed the bill within the last three days of the session.

Kathy spoke to introduce the bill at Second Reading. She said very little.:  755 words to be exact. 

There’s absolutely nothing in Kathy’s comments about why government was not going to use the law from the 1970s that already included a description of the Lower Churchill.  There are lots of words about what happened in the  past when the provincial government created the Lower Churchill Development Corporation to hold the water rights and to…well… develop the Lower Churchill.

As to what was happening in the House at the time, here’s what Kathy said:

Our government will not be exercising this option.

That’s it.

No “why”.

No nothing at all.

As the people of the province learned the next year, the new bill contained a different definition of the rights conferred on Nalcor such that it would have gained the right to control the entire river. That contravened the 1969 power contract and – when Hydro-Quebec caught them at it – the provincial government held an emergency session of the legislature to change the 2008 law back to the old definition.

In the 2008 emergency session, Kathy Dunderdale said this about the changes to the 2008 law:

CF(L)Co interprets the current act as including waters of the Upper Churchill in the Lower Churchill, which was certainly not the intent.

No one in public knows what the intent was, at least from the 2008 Hansard, since Kathy Dunderdale never said that the bill contained a new definition of the waters nor did she explain why she and her colleagues had changed it in the first place. Curiously, Dunderdale said considerably more about the intention at that point in the 2009 emergency session and what the new amendment required than she said about the entire bill when she first introduced it in 2008.

Her introductory remarks totalled over 1,600 words.  Interestingly, the Hansard appears to have been taken word-for-word from Dunderdale’s speaking notes.  It includes a stage direction to the reader that is really only necessary if one was speaking out loud:

“…45 minutes west of Greenwich (PRONOUNCED: Gren-ich), …”

Kathy still didn’t explain why they had changed the definition in 2008.  She just denied up and down that they had any intention to circumvent the 1961 lease.  Since Kathy said nothing at all about the government’s intention the previous year,  her declaration of intent was a wee bit late.

Now none of this is conclusive.  Still, you have to admit it looks rather interesting.  It’s especially interesting in light of Tom Marshall’s mention of the 1984 case and how official statements revealed government’s real intention in the Water Rights Reversion Act case.

If you looked around a bit – as Hydro-Quebec has likely already done -you’d probably find lots of comments since 2001 from the Conservatives in opposition and in government that talk about their intention of scoring some payback for the 1969 contract. There’d be tons from 2009 and into 2010 about how fundamentally untrustworthy that gang in Quebec were.  You can find reams of stuff about how Hydro-Quebec supposedly has nothing better to do than frig with the good people of Newfoundland and Labrador.

You find lots of spatter all over the place.  And if you look, you’d even see voids  - the stuff that isn;t there - that are more revealing than what is actually there.