Foggy Bottom probing expropriation; other diplomatic inquiries to follow?

According to The Telegram, American diplomatic officials have inquired with the Government of Newfoundland and Labrador about Bill 75.  That’s the expropriation bill rammed through the legislature before Christmas with virtually no debate.

No details on the inquiries have been released.

While attention has focused on AbitibiBowater – the public target of the bill - Bill 75 also expropriated assets belonging to  Manulife, Standard Life, Industrial Alliance, Sun Life, Fortis Generation and Enel. 

Enel is an Italian energy company represented in the Star Lake project by its subsidiary CHI. No word on whether Italian diplomats have also inquired about the expropriation.

Standard Life Canada is the Canadian division of the Scottish international financial services group. No word on any diplomatic inquires from the United Kingdom High Commission.

Fortis Generation is a subsidiary of Fortis, Inc, the Newfoundland-based energy company with interests in Canada, the United States and Central America.

Manulife and Sun Life are Canadian financial services companies.

 

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Rambler halts mine development

In what it calls the first phase of a cost reduction program, Rambler Metals and Mines is halting all underground drilling and pre-development work on its Ming Mine at Baie Verte, Newfoundland. 

The company is laying off 18 employees and retaining those staff necessary to complete a technical report, resource study and engineering assessment. That work is due by the end of January.

In December, the company reported net losses of more than GBP 212, 000 but company management indicated they were confident that additional financing could be secured by mid-2009.  In making the announcement on Thursday, however, Rambler chief executive officer George Ogilvy said the halt at Ming would enable the company “to care [sic] and maintain its high quality asset without requiring any external funding until 2010.”

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Shithouse?

Down this way, ignorant has a connotation that others may not pick up.

To be ignorant means that one is unaware of facts, but to be ignorant also means taking that lack of knowledge and acting in a rude, boorish, offensive manner.

Now we can look to the dictionary and see a reference to David Angus’ comments in Lawrence Martin’s stroke piece on Peter Mackay, DDS:

"I think Peter's got the opportunity to be the regional powerhouse in taking an area of Canada from shithouse to lighthouse."

That’s the epitome of ignorance in too many ways to waste time explaining.

Let’s just let the words speak for themselves.

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Clueless, useless “opposition”

Lorraine Michael is clueless.

She obviously – painfully obviously – doesn’t understand how cabinet appointments are made.  How the heck else would she make this kind of comment to voice of the cabinet minister?

NDP Leader Lorraine Michael wants the Premier to consult with the Minister Responsible for the Status of Women when filling board positions. Danny Williams appointed Ed Drover to replace outgoing member Mary J. Whelan on the Offshore Petroleum Board earlier this week and Michael says the new makeup may not be able to adequately address employment equity issues for women in the offshore since there are now no women sitting at the table. Michael says Williams missed the opportunity to name a woman to the now all-male board, which also has an all-male management team. Michael plans to raise her concerns in a letter to Williams.

If not understanding the process wasn’t bad enough, the biggest concern she’s got about the recent appointment of a Tory bagman to a plum job on the offshore regulatory board is that the fact the board is now all-male means they won’t be able to adequately address gender equity employment offshore.

First of all, Lorraine Michael is making a sexist comment.

That’s right, a sexist comment.  Her comment is based on the assumption that men cannot understand, appreciate or act on issues involving gender equity evidently merely because of their chromosomal structure.

Utter crap, Lorraine.  Sheer crap.

Second, she might want to pay attention to something like the lack of any obvious qualification for the appointee other than his impeccable Provincial Conservative ones. Rather than make sexist comments, Lorraine might try addressing substance.

Third, she might want to watch the news once in a while. 

Lorraine Michael is the kind of opposition a government loves:  clueless and hence completely ineffective. 

Go ahead and write your letter to Danny, Lorraine. 

It’s sure to have a profound effect on the guy who eats tough multinational companies for breakfast.

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Kruger to trim production by 25K tonnes in first half of 2009

A short news release from Kruger on Wednesday confirmed the company will shed 25,000 tonnes of production in the first half of 2009 with the cuts being spread across the company’s three Canadian mills.

KRUGER TO REDUCE NEWSPRINT PRODUCTION IN 2009

Montréal (Québec), January 7, 2009 – Kruger Inc. announced today its intention to reduce its newsprint production by 25,000 tonnes in the first half of 2009. This curtailment will allow the company to re-balance its order book to capacity. The downtime will be spread throughout the Company’s three Canadian mills.

Founded in 1904, Kruger Inc. is a major producer of publication papers, tissue, lumber and other wood products, corrugated cartons from recycled fibers, green and renewable energy and wines and spirits. The Company is also a leader in paper and paperboard recycling in North America. Kruger operates facilities in Quebec, Ontario, Alberta, British Columbia, Newfoundland and and Labrador, in the United States and the United Kingdom and has 9,000 employees.

This cut will affect the mill at Corner Brook but no details were released by Kruger.

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Nostalgia: CF-101 Voodoos

Some eye candy for the interceptor lovers out there:  a short vid of 12 Canadian Forces Voodoos flying in formation.

Your humble e-scribbler once met a Voodoo backseat guy who had been on exchange with the Brits in Tornado fighters. He was amazed at how quiet they were.  In the Voodoo, he said, you could tell how fast you were going by how loudly you had to yell so the driver could hear you.

St. John’s declares war on Tim Horton’s

St. John’s city council doesn’t have much better to do – evidently – than to impose a ban on drive through eating establishments, particularly the Tim Horton’s franchises.

Interestingly enough, one Timmies on the west end of Water Street that is almost complete renovations to improve parking and deal with the traffic problems caused by its drive-through, will likely be denied an occupancy permit.

You can tell this latest move is another of the ill-considered policies that come from Tammany on Gower since no consideration seems to have been given to the implications of the supposed cause of the ban.  If a commercial establishment can have such business success that it causes some inconvenience  - the mayor throws out the spectre of “tragedy” - and therefore attract action specifically by Council, then every other enterprise that causes traffic snarls can expect the same treatment.

The mayor’s rhetoric is extreme.  These drive-throughs have been around for quite some time causing on occasion far worse problems than have been seen lately. If the fear of some unspecified “tragedy” is behind Doc O’Keefe’s sudden discovery of the Timmies crisis, one can only wonder what might happen if he walked along Brookfield Road instead of turning up Cowan Avenue during his daily constitutional. 

Lester’s Farm might be toast, especially on some Saturday’s.  Heck, the road itself can be treacherous at times.  Doc might even notice the absence of sidewalks in an area that has been residential for over three decades and yet…for some unknown reason…the city has not seen fit to provide an ounce of sidewalk for pedestrians. 

Doc might even wander into the neighbourhoods and find, for example, that city council crews often force residents to shovel six feet out into the street during the winter to find the one narrow lane left by council ploughs.  We are not talking major snowstorms here and usually the crews do a decent job;  it’s just that your humble e-scribbler found such a state  - six feet from curb to road - in front of his own humble dwelling only this past weekend when the total snowfall was something on the order of 10 centimetres.

But wait.

That would be city council’s responsibility to keep the roads in good condition or install sidewalks and maintain them properly and keep them cleared of snow. Perhaps they’d even have to explain last fall’s auditor problems. Or figure out how to fund curb side recycling.

And if city council had to focus on the basics, then – by Keith Coombs’ beard – they wouldn’t get to pour money down the Mile One sinkhole or gallivant all over the globe at the taxpayers’ expense  around trying to lure cruise ships to the city.

Not much has changed in St. John’s.

Incidentally, it’s an election year in the capital. If this Timmies attack is happening at the start of the year one can only imagine what sort of nonsense councillors will find to raise their ire come voting time.

Rest assured, though, as councillor Art Puddister told radio listeners this morning, it will occur – like the Tims attack - “on a go forward basis.”

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“The Celtic Tiger may be dead…”

From the New York Times, a perspective on the Irish economy and the impact the global economic crisis is having on the model once held aloft alongside that other now-crumbled relic, Iceland.

Ireland’s policy makers, like their counterparts in the United States and Britain, were seduced by record tax inflows and a full-employment economy. They paid little heed to the lonely voices that warned of the crash that finally came over the summer, when interest rates in Europe began to rise. Banks that had steered more than 60 percent of their loans toward property stopped lending, and asset values plummeted.

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Nice work if you can get it, patronage appointments version

Voice of the cabinet minister puts a happy government- face on the news that the provincial government just appointed Ed Drover to the offshore regulatory board on a “part-time” basis.  That’s a wee bit odd since the board isn’t a full-time job anyway.

Well, it’s also a bit odd that a radio station that started out claiming to be the Voice of the Common Man has flipped 180 degrees, but that’s another issue.

CBC’s Here and Now reminded everyone in the province tonight of two things.

First, the guy who got the plum is a well-known Provincial Conservative fundraiser.

Second, they reminded us – as CBC reported last April  - that the guy and the company he worked for are being sued by a former employee of the life insurance company who claims “she was verbally abused, harassed and bullied while on the job.”

No less a personage than Olympic gold medalist and Danny icon Brad Gushue had a few observations about the guy as well:

Gushue was employed as an adviser selling London Life products for nine months beginning in 2001. When he quit in June 2002, Gushue wrote to company vice-president Jim O'Neill, saying the office was led through "intimidation and fear."

Gushue alleged Drover addressed him in a "very unprofessional and inappropriate manner" in a meeting, and also said that when he quit, Drover called him "a failure."

So what is it about this cabinet and appointments to the offshore regulatory board?  Andy Wells and now this guy, neither of whom have any obvious background or experience in anything related to the offshore industry.

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The rules only apply to other people

Michael Walker is right when he draws this analogy to Danny Williams’ expropriation bill:

Under the terms of the monopoly that Mr. Williams eventually abandoned — in return, reportedly, for a couple hundred million dollars — Newfoundlanders in his area were compelled by force of federal law to use no other television delivery system than the one that Mr. Williams provided. Satellite dishes which brought “illegal” television signals to their owners also brought the RCMP to seize the illegal dishes and charge the owners. Now, presumably Mr. Williams would claim that he owned the license to exploit Newfoundlanders in this way and he had every right to sell it. In fact, he would probably agree that if there had not been a system of laws ensuring him of his right to sell the right to exploit he would not have invested the money in the monopoly in the first place. “To attract capital investment in such activities, governments have to create the rule of law to make the environment attractive for the investors,” he would have had to agree.

Poor Michael just misses the crucial point:  in Newfoundland and Labrador, the rules only apply to everyone else.  If Danny Williams had every been treated the way he treats other people, you’d never hear the end of the screaming and moaning.

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Coming soon to the History Channel!

What have we learned from history?

The Great Sheaves Cove Chainsaw Massacre

News of a racket in Lourdes between two fellows clearing snow brought back memories from 25 years ago of a story from Sheaves Cove, another community on the Port au Port peninsula.

A university mate spent the summer working with the Mounties patrolling that portion of the west coast of Newfoundland and brought back all sorts of tales – tall and otherwise – as he took the Force out for a pre-hiring test spin.  Aside:  he joined the Force and has worked his way up to dizzying heights.

Anyway, seems that in Sheaves Cove, constables responded to a call one night of two fellows going at each other’s property with chainsaws.  A dispute over a fence or something got a bit out of hand a before too long, the boys were headed for the Poulans or whatever gas-powered wood-slicer was in the shed. 

When the Mounties arrived one guy was chopping into the disputed fence while the other fellow was slicing into his neighbour’s house.

Then there was the one about what became known as the Bay St. George Space Station.  A crowd gathered in the kitchen of buddy’s new house to celebrate finishing the work on the place and getting the family moved in. 

In the middle of the festivities, the house was rocked by an explosion.  Da b’ys rushed around to figured out what had happened and to see if anyone was injured.  As the story goes – and this is where it hits Mythbusters territory -  they’d hooked up the hot water tank and forgot to install the pressure relief valve.  Once the pressure built up in the tank, it had no where to go but out through the drain valve toward the bottom of the tank.

The thing reputedly took off like a rocket and headed up through the floor.  It tore out the toilet and tank, which happened to be installed above on the floor immediately above the hot water heater. The toilet wound up 300 yards out in the back yard and the water heater ended up 600 yards out.

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So now we know where the Ig-man was…

Before you pile on Lawrence Martin’s latest column, consider the following:

1.  The has to be a really good reason why the new Liberal leader has laid low  - read been completely invisible - for the past couple of weeks.  Writing a book is an excuse not a reason.

2.  “By comparison to his predecessor, he is a man of magnitude.”  Only in some small minds.  That sort of comment belittles Stephane Dion in a fashion the man does not deserve on any account.  it also inflates Iggy in a way he certainly doesn’t deserve.

3.  Excuses, excuses…

At a volatile political juncture when the moment needs be seized, Iggy's off to a quiet and rather unremarkable beginning.

It's not so much his own doing.

If the guy’s dropped the ball, as Martin suggests, then there’s no reason to give him an excuse.  Iggy wanted the job – has been drooling over the job – ever since the convention.  If he wanted it so badly, his team should have been ready for the coronation they helped engineer.  If the Ig-man’s off to a slow and quiet start, then it must be because his people want it that way.  Ask why that would be rather than offer excuses.

4. And then it appears, sort of…:

The public discussion centres not so much on the new lord of the Liberals but on the continuing aversion to the idea of a Liberal-led coalition. Archduke Ignatieff, perhaps for good reason, has not wanted to disown the coalition concept.

The aversion to the coalition is within the Ig-man himself, not within the public at large.  Well, at least the public could have been persuaded if someone wanted to push the idea.  Staying quiet allowed the anti-coalition line to cement.  That’s something you’d let occur only if you wanted it to happen. 

Iggy hasn’t wanted to disown the coalition because there are lots of people within the Liberal Party – starting with Iggy-backer Warren the K – who want to bring down the Harperites NOW!  They might take a decidedly different view of the new saviour of the party if his true feelings were clear up front.  His actions, though, speak far louder than his words.

5.  D’uh!

His low profile speaks too much of a party inclined to stay the course, as opposed to being in a rush to change it.

Larry finally gets it.

It just took him weeks and weeks and finally a ton of words to get to the point.

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Bond Papers unveils BP’s draft whistleblower legislation

Williams acknowledged one election promise he hasn't kept yet is to enact whistleblower legislation, which would protect government employees who come forward with complaints against the province that could otherwise cost them their jobs.

"We indicated that we would try and get that done by the end of this year. We realized getting into that, that that's a very complex piece of legislation that we have to make sure that it's done properly," says Williams.

"I would think, that would be one thing that was probably on the list for this year but couldn't get accomplished."

That’s from the Premier’s year-ender with the Telegram.  You’ll find references to whistleblower legislation all over the place, including some year-end comments from the leader of the New Democratic Party in Newfoundland and Labrador, Lorraine Michael. She’s complained before but somehow over the past 12 months neither the government nor opposition could find time to sort this out. 

Perhaps this fall they thought it best to repeal a raft of old statutes one at a time in order to appear busy rather than actually produce some meaningful legislation.

Last spring, the Premier promised consultations and a bill would be completed by last fall:

Justice Minister Jerome Kennedy indicated in May that those consultations were holding up the development and implementation of the law.

"We are, and have been working on the whistleblower legislation," Kennedy said in the House of Assembly May 20. "We have looked at the legislation that is in place across this country, and we have had extensive discussions as to the nature and content of this legislation.

"However, what we are looking at now, there does need to be some consultation with certain groups to determine the matters of significance that would come under the whistleblower legislation."

The lack of whistleblower protections became an issue in the 2007 provincial election. During the September 2007 televised debate, NDP Leader Lorraine Michael said she has received clandestine, late-night phone calls from provincial employees informing her about potential problems in government.

Premier Danny Williams reacted angrily to the claim anyone would feel afraid of coming forward with such information.

At a campaign stop in Carbonear Oct. 6, Williams pledged that his government would implement whistleblower laws in the first session of the legislature after the election.

"We'll get that on at the very earliest opportunity," Williams said in response to questions from reporters last October.

"The very first session of the House that we have, that's something we'll have a look at.

All the public got by year-end were excuses for a failure to deliver.  The legislation may be complex, but with all the lawyers on the government payroll, all the public servants tasked with working on legislation and  - here’s the kicker – a government firmly committed to delivering whistleblower protection the thing could get done.

Surely whistleblower legislation is considerably less complex than the expropriation bill that was – if you believe the government explanations – drafted and rammed through the legislature in less than two weeks.   That wasn’t hasty, though, according to the official line.

Surely whistleblower legislation is less complex than the energy act amendments (Bill 35) speeded through the House last spring.)

Well, to demonstrate that drafting legislation to protect the public interest isn’t all that complicated, we present the following draft for public consideration.

The draft bill establishes a simple, transparent system in which public servants can blow the whistle on illegal acts without running the risk of employer retaliation. The bill also describes the types of information which can be made public in conformity with existing open records and privacy laws.

The bill gives important responsibilities to the Citizen’s Representative and the Auditor General in dealing with any disclosures.  This is intended to ensure – to the fullest extent possible – that partisan considerations are not involved in the disclosure or in the response to a disclosure.

The bill also whistleblower protection to individuals who are not public servants or who are working on government contracts. It establishes a fine of up to $10,000 for wilfully obstructing an investigation under the whistleblower act.

This draft bill appeared in your humble e-scribbler’s e-mail last April  - that’s right April 2008 - as the result of a discussion with several interested people. It is modelled on successful legislation from other jurisdictions.  That’s because there is no need to reinvent the wheel when it comes to legislation that exists in other parts of the country.

This draft bill circulated through a few hands in late April and early May  but since no one – government or opposition –has bothered to bring this or any similar measure forward for public discussion in the legislature, the time has come to put this into the public domain and open it up for wider discussion.

Whistleblower Protection Act

Whereas it is important to facilitate the disclosure and investigation of significant and serious matters in or relating to the public service, that are potentially unlawful, dangerous to the public or injurious to the public interest; and

Whereas it is important to protect persons who make those disclosures; and

Whereas despite promising, more than a year ago, to bring forward whistleblower protection legislation in the first session of the Legislature after the most recent election, the government has still not done so;

Be it enacted by the Lieutenant-Governor and House of Assembly in Legislative Session convened, as follows:

Analysis

Short Title

1. This Act may be cited as the Whistleblower Protection Act.

Definitions

2. The following definitions apply in this Act.

“board” means The Labour Relations Board appointed under The Labour
Relations Act.

“chief executive” means

(a) in relation to a department, the deputy minister of that department;

(b) in relation to a public body or agency, the chief executive officer of that
body or agency; and

(c) in relation to an office, the officer of the House of Assembly in charge of
that office.

“department” means a department of the government.

“designated officer” means the senior official designated under section 6 to receive and deal with disclosures under this Act.

“disclosure” means a disclosure made in good faith by an employee in accordance with this Act.

“employee” means an employee or officer of a department, public body or office.

“public body” means

(a) a public body as defined in The Financial Administration Act;

(b) a regional health authority established or continued under The Regional
Health Authorities Act;

(c) a child and family services agency as defined in The Child Care Services Act; and

(d) any other body designated as a public body in the regulations.

“office” means

(a) the office of the Auditor General;

(b) the office of the Chief Electoral Officer;

(c) the office of the Child and Youth Advocate; and

(d) the office of the Citizen’s Representative.

“Citizen’s Representative” means the Citizen’s Representative appointed under The Citizen’s Representative Act.

“public service” means departments, government bodies and offices.

“reprisal” means any of the following measures taken against an employee because the employee has, in good faith, sought advice about making a disclosure, made a disclosure, or co-operated in an investigation under this Act:

(a) a disciplinary measure;

(b) a demotion;

(c) termination of employment;

(d) any measure that adversely affects his or her employment or working
conditions;

(e) a threat to take any of the measures referred to in clauses (a) to (d)

“wrongdoing” means a wrongdoing referred to in section 3.

PART I

Disclosures of wrongdoing

Wrongdoings to which this Act applies

3. (1) This Act applies to the following wrongdoings in or relating to the public service:

(a) an act or omission constituting an offence under an Act of the Legislature or the Parliament of Canada, or a regulation made under an Act;

(b) an act or omission that creates a substantial and specific danger to the life, health or safety of persons, or to the environment, other than a danger that is inherent in the performance of the duties or functions of an employee;

(c) gross mismanagement, including of public funds or a public asset;

(d) knowingly directing or counselling a person to commit a wrongdoing described in clauses (a) to (c)

(2) For greater certainty, this Act applies to wrongdoings which were committed or otherwise occurred before the coming into force of this Act.

Discipline for wrongdoing

4. An employee who commits a wrongdoing is subject to appropriate disciplinary action, including termination of employment, in addition to and apart from any penalty provided for by law.

Procedures

Procedures to manage disclosures

5. (1) Every chief executive must establish procedures to manage disclosures by employees of the department, public body or office for which the chief executive is responsible.

Content of procedures

(2) The procedures established under subsection (1) must include procedures

(a) for receiving and reviewing disclosures, including setting time periods for action;

(b) for investigating disclosures in accordance with the principles of procedural fairness and natural justice;

(c) respecting the confidentiality of information collected in relation to disclosures and investigations;

(d) for protecting the identity of persons involved in the disclosure process, subject to any other Act and to the principles of procedural fairness and natural justice;

(e) for reporting the outcomes of investigations; and

(f) respecting any other matter specified in the regulations.

Designated officer

6. Every chief executive must designate a senior official to be the designated officer for the purposes of this Act, to receive and deal with disclosures by employees in the department, public body or office for which the chief executive is responsible.

Exception

7. (1) Sections 5 and 6 do not apply to a chief executive who determines in consultation with the Citizen’s Representative that it is not practical to apply those sections given the size of the department, public body or office for which the chief executive is responsible.

Chief executive to be designated officer

(2) If no designation is made under section 6, the chief executive is the designated officer for the purposes of this Act.

Information about Act to be communicated

8. The chief executive must ensure that information about this Act and the disclosure procedures is widely communicated to the employees of the department, public body or office for which the chief executive is responsible.

Making a disclosure

Request for advice

9. (1) An employee who is considering making a disclosure may request advice from the designated officer or the Citizen’s Representative.

Request may be in writing

(2) The designated officer or Citizen’s Representative may require the request for advice to be in writing.

Disclosure by employee

10. If an employee reasonably believes that he or she has information that could show that a wrongdoing has been committed or is about to be committed, the employee may make a disclosure to

(a) the employee’s supervisor;

(b) the employee’s designated officer; or

(c) the Citizen’s Representative.

Disclosure to Auditor General re Citizen’s Representative

11. If an employee of the office of the Citizen’s Representative is seeking advice or making a disclosure regarding that office, the advice may be sought from, or the disclosure made to, the Auditor General. If a disclosure is made, the Auditor General must carry out the responsibilities of the Citizen’s Representative under this Act in relation to that disclosure.

Content of disclosure

12. A disclosure made under section 10 or 11 must be in writing and must include the following information, if known:

(a) a description of the wrongdoing;

(b) the name of the person or persons alleged to

(i) have committed the wrongdoing, or

(ii) be about to commit the wrongdoing;

(c) the date of the wrongdoing;

(d) whether the wrongdoing has already been disclosed and a response received.

Citizen’s Representative to facilitate resolution within department, etc.

13. When an employee makes a disclosure to the Citizen’s Representative, the Citizen’s Representative may take any steps he or she considers appropriate to help resolve the matter within the department, public body or office.

Making a disclosure about an urgent matter

Public disclosure if situation is urgent

14. (1) If an employee reasonably believes that a matter constitutes an imminent risk of a substantial and specific danger to the life, health or safety of persons, or to the environment, such that there is insufficient time to make a disclosure under section 10, the employee may make a disclosure to the public

(a) if the employee has first made the disclosure to an appropriate law enforcement agency or, in the case of a health-related matter, the chief medical officer of health; and

(b) subject to any direction that the agency or officer considers necessary in the public interest.

Disclosing to supervisor or designated officer

(2) Immediately after a disclosure is made under subsection (1), the employee must also make a disclosure about the matter to his or her supervisor or designated officer.

Types of information that can be disclosed

Disclosure despite other Acts

15. Subject to section 16, an employee may make a disclosure under this Act, even if a provision in another Act or regulation prohibits or restricts disclosure of the information.

Where disclosure restrictions continue to apply

16. (1) Nothing in this Act authorizes the disclosure of (a) information described in subsection 18 (1) of The Access to Information and Protection of Privacy Act (Cabinet confidences), except in circumstances
mentioned in subsection 18 (2) of that Act;

(b) information that is protected by solicitor-client privilege;

(c) in the case of a disclosure to the public under subsection 14 (1), information that is subject to any restriction created by or under an Act of the Legislature or the Parliament of Canada, or a regulation made under an Act.

Caution re disclosure of personal or confidential information

(2) If the disclosure involves personal information or confidential information, the employee must take reasonable precautions to ensure that no more information is disclosed than is necessary to make the disclosure.

Other obligations to report not affected

17. Nothing in this Act relating to the making of a disclosure is to be construed as affecting an employee’s obligation under any other Act or regulation to disclose, report or otherwise give notice of any matter.

Annual report about disclosures

Report about disclosures

18. (1) Each year, a chief executive must prepare a report on any disclosures of wrongdoing that have been made to a supervisor or designated officer of the department, public body or office for which the chief executive is responsible.

Information to be included

(2) The report must include the following information:

(a) the number of disclosures received and the number acted on and not acted on;

(b) the number of investigations commenced as a result of a disclosure;

(c) in the case of an investigation that results in a finding of wrongdoing, a description of the wrongdoing and any recommendations or corrective actions taken in relation to the wrongdoing or the reasons why no corrective action was taken.

Public access to report

(3) The report must be included in the annual report of the department, public body or office if an annual report is made publicly available. Otherwise, the chief executive must make the report available to the public on request.

Part II

Investigations by the Citizen’s Representative

Purpose of investigation

19. The purpose of an investigation into a disclosure of wrongdoing is to bring the wrongdoing to the attention of the appropriate department, public body or office, and to recommend corrective measures that should be taken.

Investigation by Citizen’s Representative

20. (1) The Citizen’s Representative is responsible for investigating disclosures that he or she receives under this Act.

Informal investigation

(2) An investigation is to be conducted as informally and expeditiously as possible.

Right to procedural fairness and natural justice protected

(3) The Citizen’s Representative must ensure that the right to procedural fairness and natural justice of all persons involved in an investigation is respected, including persons making disclosures, witnesses and persons alleged to be responsible for wrongdoings.

When investigation not required

21. (1) The Citizen’s Representative is not required to investigate a disclosure — and the Citizen’s Representative may cease an investigation — if he or she is of the opinion that

(a) the subject matter of the disclosure could more appropriately be dealt with, initially or completely, according to a procedure provided for under another Act;

(b) the disclosure is frivolous or vexatious, or has not been made in good faith or does not deal with a sufficiently serious subject matter;

(c) so much time has elapsed between the date when the subject matter of the disclosure arose and the date when the disclosure was made that investigating it would not serve a useful purpose;

(d) the disclosure relates to a matter that results from a balanced and informed decision-making process on a public policy or operational issue;

(e) the disclosure does not provide adequate particulars about the wrongdoing as required by section 12;

(f) the disclosure relates to a matter that could more appropriately be dealt with according to the procedures under a collective agreement or employment agreement;

(g) there is another valid reason for not investigating the disclosure.

Referral to Auditor General

(2) If the Citizen’s Representative believes that a disclosure made to the Citizen’s Representative would be dealt with more appropriately by the Auditor General, the Citizen’s Representative may refer the matter to the Auditor General to be dealt with in accordance with The Auditor General Act.

Reprisal protections apply

(3) If a matter is referred to the Auditor General under subsection (2), the reprisal protections set out in Part 4 of this Act apply to the employee or former employee who made the disclosure to the Citizen’s Representative.

Conducting an investigation

22. The Citizen’s Representative and persons employed under the Citizen’s Representative have the powers and protections provided for in The Citizen’s Representative Act when conducting an investigation of a disclosure under this Act.

Investigating other wrongdoings

23. If, during an investigation, the Citizen’s Representative has reason to believe that another wrongdoing has been committed, the Citizen’s Representative may investigate that wrongdoing in accordance with this Part.

Citizen’s Representative’s report re investigation

24. (1) Upon completing an investigation, the Citizen’s Representative must prepare a report containing his or her findings and any recommendations about the disclosure and the wrongdoing.

Copy to employee and chief executive

(2) The Citizen’s Representative must give a copy of the report to the employee and the chief executive of the appropriate department, public body or office.

Matter being investigated involves chief executive

(3) When the matter being investigated involves the chief executive, the Citizen’s Representative must also give a copy of the report,

(a) in the case of a department, to the minister responsible;

(b) in the case of a public body, to the board of directors and the minister responsible; or

(c) in the case of an office, to the Speaker of the House of Assembly.

Department to notify Citizen’s Representative of proposed steps

25. (1) When making recommendations, the Citizen’s Representative may request the department, public body or office to notify him or her, within a specified time, of the steps it has taken or proposes to take to give effect to the recommendations.

Report to minister or Speaker

(2) If the Citizen’s Representative believes that the department, public body or office has not appropriately followed up on his or her recommendations, or did not co-operate in the Citizen’s Representative’s investigation under this Act, the Citizen’s Representative may make a report on the matter

(a) in the case of a department, to the minister responsible;

(b) in the case of a public body, to the board of directors and the minister responsible; or

(c) in the case of an office, to the Speaker of the House of Assembly.

Annual report

26. (1) The Citizen’s Representative must make an annual report to the House of Assembly on the exercise and performance of his or her functions and duties under this Act, setting out

(a) the number of general inquiries relating to this Act;

(b) the number of disclosures received and the number acted on and not acted on;

(c) the number of investigations commenced under this Act;

(d) the number of recommendations the Citizen’s Representative has made and whether the department, public body or office has complied with the recommendations;

(e) whether, in the opinion of the Citizen’s Representative, there are any systemic problems that give rise to wrongdoings; and

(f) any recommendations for improvement that the Citizen’s Representative considers appropriate.

Report to be tabled in Assembly

(2) The report must be given to the Speaker, who must table a copy of it in the House of Assembly within 15 days after receiving it if the Assembly is sitting or, if it is not, within 15 days after the next sitting begins.

Special report

(3) Where it is in the public interest to do so, the Citizen’s Representative may publish a special report relating to any matter within the scope of the Citizen’s Representative’s responsibilities under this Act, including a report referring to and commenting on any particular matter investigated by the Citizen’s Representative.

Part III

Protection from Reprisal

Protection of employee from reprisal

27. No person shall take a reprisal against an employee or direct that one be taken against an employee because the employee has, in good faith,

(a) sought advice about making a disclosure from his or her supervisor, designated officer or chief executive, or the Citizen’s Representative;

(b) made a disclosure; or

(c) co-operated in an investigation under this Act.

Complaint to Labour Relations Board

28. (1) An employee or former employee who alleges that a reprisal has been taken against him or her may file a written complaint with the board.

Board order

(2) If the board determines that a reprisal has been taken against the complainant contrary to section 27, the board may order one or more of the following measures to be taken:

(a) permit the complainant to return to his or her duties;

(b) reinstate the complainant or pay damages to the complainant, if the board considers that the trust relationship between the parties cannot be restored;

(c) pay compensation to the complainant in an amount not greater than the remuneration that the board considers would, but for the reprisal, have been paid to the complainant;

(d) pay an amount to the complainant equal to any expenses and any other financial losses that the complainant has incurred as a direct result of the reprisal;

(e) cease an activity that constitutes the reprisal;

(f) rectify a situation resulting from the reprisal;

(g) do or refrain from doing anything in order to remedy any consequence of the reprisal.

Part IV

General Provisions

Information about wrongdoing provided by persons outside the public service

Disclosure of wrongdoing by others

30. (1) If a person who is not an employee reasonably believes that he or she has information that could show that a wrongdoing has been committed or is about to be committed, the person may provide that information to the Citizen’s Representative.

Information to be provided

(2) Information provided to the Citizen’s Representative under subsection (1) must be in writing and must include the following information, if known:

(a) a description of the wrongdoing;

(b) the name of the person or persons alleged to

(i) have committed the wrongdoing, or

(ii) be about to commit the wrongdoing;

(c) the date of the wrongdoing;

(d) whether the information has already been provided to the department, public body or office concerned and a response received.

Citizen’s Representative may investigate

(3) Upon receiving information under this section, the Citizen’s Representative may investigate the wrongdoing. In that event, Part 3 applies, other than subsection 21 (3) (protection from reprisal)

Report

(4) The Citizen’s Representative must give a copy of the report of an investigation under this section to the person who provided the information about the wrongdoing.

Protection for private sector employee who provides information

31. (1) No employer of a private sector employee shall take any of the measures listed in subsection (2) against an employee by reason only that

(a) the employee has, in good faith, provided information to the Citizen’s Representative about an alleged wrongdoing; or

(b) the employer believes that the employee will do so.

Prohibited measures

(2) The measures prohibited by subsection (1) are

(a) a disciplinary measure;

(b) a demotion;

(c) termination of employment;

(d) any measure that adversely affects the employee’s employment or working conditions

(e) any measure that otherwise harms the interests of the employee; and

(f) a threat to take any of the measures referred to in clauses (a) to (e)

Other rights not affected

(3) Nothing in this section affects any right of a private sector employee either at law or under a collective agreement or employment contract.

Meaning of “private sector employee”

(4) In this section, “private sector employee” means an employee or officer other than an employee or officer of a department, public body or office.

Protection for person contracting with government

32. No person acting or purporting to act on behalf of the government, a public body or an office shall

(a) terminate a contract;

(b) withhold a payment that is due and payable under a contract; or

(c) refuse to enter into a subsequent contract;

by reason only that a party to the contract or a person employed by a party to the contract has, in good faith, provided information to the Citizen’s Representative about an alleged wrongdoing in or relating to the public service.

General Offences

False or misleading statement

33. (1) No person shall — in seeking advice about making a disclosure, in making a disclosure, or during an investigation — knowingly make a false or misleading statement, orally or in writing, to a supervisor, designated officer or chief executive, or the Citizen’s Representative, or to a person acting on behalf of or
under the direction of any of them.

Obstruction in performance of duties

(2) No person shall wilfully obstruct a supervisor, designated officer or chief executive, or the Citizen’s Representative, or any person acting on behalf of or under the direction of any of them, in the performance of a duty under this Act.

Destruction, falsification or concealment of documents or things

(3) No person shall, knowing that a document or thing is likely to be relevant to an investigation under this Act,

(a) destroy, mutilate or alter the document or thing;

(b) falsify the document or make a false document;

(c) conceal the document or thing; or

(d) direct, counsel or cause, in any manner, a person to do anything mentioned in clauses (a) to (c)

Offence and penalty

(4) A person who contravenes this section or section 27, 31 or 32 is guilty of an offence and is liable on summary conviction to a fine of not more than $10,000.

Commencement of prosecution

(5) A prosecution under this Act may not be commenced later than two years after the day the alleged offence was committed.

Legal Advice

Arranging legal advice

34. If the designated officer or Citizen’s Representative is of the opinion that it is necessary to further the purposes of this Act, he or she may, subject to the regulations, arrange for legal advice to be provided to employees and others involved in any process or proceeding under this Act.

Liability Protection

Protection from liability

35. No action or proceeding may be brought against a supervisor, designated officer or chief executive, or the Citizen’s Representative, or a person acting on behalf of or under the direction of any of them, for anything done or not done, or for any neglect,

(a) in the performance or intended performance of a duty under this Act; or

(b) in the exercise or intended exercise of a power under this Act;

unless the person was acting in bad faith.

Regulations

Regulations

36. The Lieutenant Governor in Council may make regulations

(a) designating a public sector body as a public body for the purposes of this Act;

(b) designating an entity that receives all or a substantial part of its operating funding from the government as a public body for the purposes of this Act;

(c) for the purpose of section 5, respecting the procedures to be followed in managing and investigating disclosures and reporting the outcome of investigations, including setting time periods for action;

(d) exempting Acts or regulations from the application of section 15 where the exemption is in the public interest;

(e) respecting the provision of legal advice under section 34, including determining the circumstances under which legal advice may be provided and the amounts that may be paid;

(f) defining any word or phrase used but not defined in this Act;

(g) respecting any other matter that the Lieutenant Governor in Council considers necessary or advisable to carry out the purposes of this Act.

Coming into force

37. This Act comes into force upon Royal Assent.

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Not my department:

The provincial government’s innovation department achieved almost all its targeted reduction in “red tape” during the fiscal year ending March 2008.

They killed 22% towards the goal of a 25% reduction.

Innovation Trade and Rural Development, the people who never learned google, did it the old fashioned bureaucratic way.  They didn’t actually eliminate the sorts of pointless, redundant bureaucratic obstacles imposed by government departments that the reduction initiative  is aimed at.

Nope.

These clever innovators shuffled responsibility for 731 “regulatory requirements” – whatever that is – off to another government department.

Human Resources, Labour and Employment is now the proud owners of 731 regulations.

RED TAPE REDUCTION

In 2005 the Provincial Government introduced a Red Tape Reduction Initiative to reduce regulatory burdens for the business community by 25 per cent within three years. INTRD originally identified 6,692 business
regulatory requirements but that number was reduced by 731 when the Provincial Nominee Program was moved to HRLE. The Department has achieved a 22 per cent reduction and expects to attain the additional three per cent within the required timeframe. INTRD is committed to ensuring high-service standards with its clients and the public.

That little piece of "innovation" only took three years to figure out.

The year before that, the department focused on finding issues with what the red tape reduction was really all about:  counting up the number of lines of forms and seeing if there were creative ways of collapsing the number of lines.  They weren’t concerned so much with reducing the actual amount of information gathered, mind you, just the number of specific lines it took to collect the information. 

RED TAPE REDUCTION

To support the Province’s initiative to reduce red tape and regulatory road blocks for the business community by 25 per cent, the Department conducted a full inventory of its programs. INTRD identified 6,692 business regulatory requirements – 80 per cent of which were various funding program forms. INTRD reviewed all forms as well as the departmental processing system looking for ways to simplify the forms, eliminate
duplication and make processing more effective and consistent for clients and staff. During 2006–07, the Department reduced the number of regulatory requirements by 20.6 per cent.

An earlier external review of INTRD’s programs found a high client–approval rating for the Department’s response time and service. A departmental review in 2006–07 explored ways to benchmark the major–funding
approval process. A report to recommend clear standards for client services is nearing completion.

Oddly enough, the 2007-08 HRLE annual report doesn’t mention any red tape reduction.

But notice that in 2006-07, the department was proud that its clients gave it high marks.  Well, they should. Companies like SAC Manufacturing got cash and folded four months later, apparently with very little security left for the public cash they took. Over a half million dollars of public cash. No mention of SAC in the 2007-08 annual report, though. 

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This should be interesting…

New staffer in the opposition office come Monday:

Joan Marie Aylward.

Former health minister.

Former finance minister.

Former minister of social services.

Former minister of municipal and provincial affairs.

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How Jim will screw Iggy and his crew…

Tax cuts are always politically popular.

What political party – especially one headed by a guy who isn’t at all keen on an election any time really soon – would possibly vote against putting more money in the hands of ordinary Canadians especially in these uncertain economic times?

Steve can leave on his own time and never have to sweat his job again.

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Airborne

For a total change of pace, here are some videos of paratroops exiting aircraft.

In the first video, left, they are clearly not doing it properly.  The video speaks for itself, but it must be noted that these are likely students. The number of bad exits is simply too high to make this anything other than a training drop at comparatively high altitude.

Your humble e-scribbler is far from an expert on these things, but somehow it certainly doesn’t seem correct procedure to sit on the door and scoot out until the slipstream rips you off into the air.

By the way, the gigantic numbers on the helmets in the freeze for this pretty much confirms they are students.

Before anyone can make this out to be a problem with American, at right is a video of an extremely well-trained group of American paratroops exiting the aircraft cleanly. 

The difference between the soldiers in the first video and in this one at right should be obvious even to the untrained eye.

The second video seems to be from upwards of 20 years ago, as well.  That might also make a bit of a difference and some of you will notice the huge variation in the amount of kit each soldier is carrying in the first video compared to the second one.

That’s all the same, though as operational jumps may involve carrying seemingly absurd amounts of equipment strapped to each soldier.

And when you’ve done with those, take a gander at some British soldiers doing a tactical altitude jump (500 feet or thereabouts). It’s wild footage and the language is a wee bit salty.

This video gives an idea of what the individual soldiers experiences – at least visually – as he or she falls to Earth.

China squeezing iron ore prices

China is starting out the New Year by limiting imports of iron ore.  That is likely to further depress ore prices or ensure they stay low.

That isn’t good news for Labrador west, where one of its two mines has laid off half the workforce and the other postponed a major expansion indefinitely.

Meanwhile, if Rio Tinto competitor Billiton keeps pushing out ore and making a profit at the same time, Rio Tinto might find itself squeezed even harder if the Chinese start restricting market access.

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New Year’s Round Up

1. Hidden Gem:  MoneyGrubbingLawyer.  Professional presentation, well-written with a wicked sense of humour, you’ll find everything from recipes to advice on charitable giving and that’s just in the last few days before he took a break for the holidays.

This one never disappoints.

It’s a blog you should be reading but likely aren’t.

Don’t bother trying to figure out which local lawyer is behind this.  Unless you know already, he’s pretty well hidden.

2.  Angles, angles, angles. Consilient, once the proud recipient of bags of government cash goes tits up in a huge meltdown.  Said government cash, of course, featured prominently in an auditor general’s report only last year.  The meltdown got reported, but not the wider connections to government cash. Not like it’s the first such case of such a company with government money finding itself in difficulty or cash going out without the sort of oversight that would make the auditor general happy. It’s public money, people, and the public ought to know how it’s being handed out. Incidentally, wonder what happened to the people who ran SAC manufacturing?

• How golden is your parachute?   Maybe a  question on that last one could be posed to the department that hands out the government cash to these companies, maybe to its newest assistant deputy minister who – following the Consilient implosion  - wound up working for the people who, from the looks of things, she negotiated with to get the cash for Consilient in the first place.

3.  Under-reported Story of the Year:  The Meltdown and Its Local Impact.  The warning signs have been there for months.  The sudden increase in in-migration that follows the pattern before a major recession on the mainland.  The credit crunch.  The auditor general’s repeated warnings about government finances built on “volatile” energy prices.  Funny no one seems to have figured that maybe a bubble or two might be bursting long before they burst.

Even after the meltdown started, the CM were still offering up completely wild, unsubstantiated  (read: bullshit) predictions about major projects like an aluminum smelter coming to Labrador or similar dubious bits of commentary that at least, at the beginning, tried to persuade everybody that this economic thingy was a problem for people other than those living in the “Have Province”.  And while we’re at it, didn’t anyone draw a connection between the “Have” announcement  - sudden, off the wall and all – with the efforts to convince everyone we live in a bubble? 

The economic crisis isn’t close to finished, let alone close to finished with Newfoundland and Labrador.  Let’s see if anyone follows up hard on Jerome Kennedy’s year-end musings with David Cochrane about “efficiency” in the public service or better yet, let’s see if someone can pin down the province’s finance minister on this deficit thingy and how long he’ll tolerate deficits before, as he suggested to Cochrane, there might have to be some changes.

4.  Over-reported Story of the Year, a.k.a  Load of the Year.  “Have status” or more specifically the political use to which the thing has been put.  It’s the most over-reported story of the year.  It even turns up as the Premier’s Big Accomplishment according to his year-end self-assessment.

No one in the conventional media bothered to point out that:

a.  he and his crew didn’t have anything to do with it;  but,

b.  can take away it with a heartbeat on March 1 if the Prem and Jerome opt for the O’Brien Equalization formula.

To go with it, there’s the Bristol Communications rim job cum rip off using a  Danny Williams speech to a Tory 500 buck a plate fund raiser of all things to celebrated something that is  - in essence - a complete fiction.  Does have status really change the way people around these parts looks at themselves?  Anybody in Newfoundland and Labrador whose personal self-esteem shot up as a result of that bit of “have” news needs to see a psychiatrist not a politician or a publicist. 

5.  The One to Watch for 2009 in Newfoundland and Labrador:  The Meltdown.  The full implications haven’t been felt yet.  There are aspects that will make life very uncomfortable for politicians, let alone the rest of us.  Watch for a major problem in Grand Falls once the reality of the mill closure hits home and people making twice the average provincial weekly wage find themselves living on pogey with no chance of a job at Hebron (it hasn’t happened yet), Lower Churchill (a big puff of smoke), the Second Refinery (hahahahahaha!) or Alberta (Sorry, not hiring right now).  If oil stays below US$40 a barrel – and it’s more likely to do that than average US$60 – then the provincial treasury is going to be  a wee bit bare.  A few politicos might even decide to pack it in early, especially if the heat builds up. 

6. National Snooze:  We said it here already.  Some still don’t believe it. Iggy as Liberal leader killed the coalition and with it the prospect Stephen Harper will be facing an election in the next 24 months.  Harper will be able to retire in a couple of years having served as PM as if he had won a majority.  He’ll hand off the party to someone more personable who will then demolish the geriatric Harvard prof in a stunning election win, that is, if the Ig-meister hasn’t been deposed in a coup before then. Jack Layton will stay smiling in 2009 although no one can explain why.  (Possible answer:  he and Jack Harris are busily trying to recruit Danny to take over the top Dipper job. There’s potentially a good fit there all-round, especially for Harris who has made a political career taking Danny’s lead.)

7. Being leader opp is like being waterboarded?  In the case of Michael Ignatieff, we predict a bright future on the lecture circuit with Christopher Hitchens. When he’s out of Stornoway and the nation’s capital, Michael will write an article for Vanity Fair in which he compares his views on leading a political party to his views on torturing al Queda prisoners. Seemed like a good idea at the time but once he actually experienced it, the idea wasn’t so appealing.

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Verbal tics

If Barack Obama is copying Danny Williams’ economic thing-that-isn’t-a-strategy-but-gets-called-strategy-anyway, then it’s only a matter of time before someone claims that Caroline Kennedy is now aping the local trend.

The wannabe senator from New York is the subject of blog and media reports for her repeated use of “you know” in recent media interviews.

What we are talking about here is a verbal tic of the sort many people have.  Media trainers and public speaking coaches work diligently to get them out of their students’ speeches because um, they, ah, become, like, you know, distracting, right?  They are habits in some instances.  They are space fillers in other cases.  No matter the cause, they distract from the message or in some instances suggest the speaker is not as well educated and intelligent as he or she might actually be.

Kennedy reportedly used “you know” 138 times in the course of one short interview. There are several videos on youtube focusing on Kennedy’s verbal tic.

Some, like one at left, just string together all the “you knows”  - 46 to be exact - from a single five minute interview.

Others give the whole interview or a significant chunk of it to drive home the point another way.

Closer to home, Bond Papers noted some time ago a tendency the Premier has to use the “you know” tick.  There were 11 in a 42 second clip at the front end of a CBC interview with the majority being within the first 12 seconds. On that occasion, the Premier tossed in another of his favourite tics - “quite frankly” and added a “right” just for good measure.

To correct the problem of verbal tics one has to want to get rid of them.  No surprise, therefore, that the Premier continues to tic away, especially in his off-the- cuff remarks:

Night Line (October):

And, you know, there are issues that are very, very important to Newfoundlanders and Labradorians and we look at the economy and we look at where the American economy is going and Minister Flaherty was on last week and the Prime Minister is out saying oh no, we don't have to worry in Canada, everything is fabulous, everything is wonderful. But, you know, we have to realize that, you know, we do have a direct link to that American economy and if that tanks at some point in time, then, you know, we are vulnerable.

…

Now that's not to say that, you know, there's going to be gloom and doom in Canada because Canada's fundamental are sound and I firmly believe that.

…

And on the other side of it, you know, from our own perspective, you know, our economy is strong, we're in a better position than we've ever been, we're also in a very good position now with the, you know, the international financial crisis that's underway. We now, for the first time in our lives, are in a bit of a financial bubble and that's a wonderful thing. We have that protection and the people of this province got the support of the provincial government.

…

You know, we've built a war chest and, as well, we've tried to move our debt down to get us in a good position so that if ever there was a very, very, very serious situation we'd have to take that debt back up again, but we'd have the ability to do it. But, you know, we've been really, very fiscally prudent and fiscally responsible.

…

So, you know, Newfoundland and Labrador is very much on the move and so, you know, I'm pleased with the position we're in and I do think we're in a favoured position, to be quite honest with you.

You will notice, as well, some of the Premier’s other verbal tics and mannerisms in those extracts as well.  First, the opening remarks are one giant run on sentence.  This is not a guy who speaks in sentences.  He just dumped a whole mass of verbiage out there in one big string.  Second, there’s the tendency to use “very” in a string one twos and threes, as if more than one added some appreciable extra emphasis. 

Lastly, there’s the “to be quite honest with you” at the end.  It’s akin to “nothing could be further from the truth,” except that in this case it isn’t used to deny an accusation.  This time the “honest” phrase is tossed in gratuitously, as if people might possibly be thinking he wasn’t honest enough before.  Now he is “quite” honest.

Thanks to the marvels of modern technology, it is quite easy to total the instances of these verbal tics in transcripts, like the one for Danny Williams appearance at the Cameron Inquiry. He said “you know” as a verbal tic 270 times. There were only eight “quite franklys” and a handful of “to be honests”.

It’s that kind of frequency that makes “you know” stand out.

A verbal tick like that one stands out even more when it comes as part of a relatively short sentence like one of the Premier’s responses to a question at Cameron:  “You know, do we still know?”

If the answer had been known, the question wouldn’t have been asked.

You know?

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Lower Churchill falls further behind

According to the Globe and Mail, Hydro-Quebec is negotiating its first long-term power purchase agreement in decades to ship power to New England for 20 years beginning in 2014.

New England is a major market for hydro and long-term power purchase agreements are the way to secure financing for a project like the Lower Churchill.  Thus far, Newfoundland and Labrador Hydro hasn’t been able to secure a single contract – erroneous reports to the contrary -  nor is there a sign any contract is forthcoming.

Both the Premier and NALCO(R) boss Ed Martin spent most of 2008 lowering expectations for the long awaited development of the 2800 megawatt facility.  As recently as October, Martin blamed uncertain financial markets for the apparent decision to slide back project sanction by at least six months. In February, the Premier repeated a comment he made in January that the odds of the Lower Churchill going ahead were “50/50”.

Financial problems with the project – lack of secured markets being chief among them – are likely the reason the Premier keeps insisting on federal financial backing for the project, even though it supposedly one on which he intends to “go it alone:”

"It was an opportunity for the federal government to right the wrong of the Upper Churchill, whereby we are losing, like, a billion and a half dollars a year."

But Williams maintains the feud is over now, and says he hopes for co-operation from Ottawa on funding a new penitentiary, a federal ocean agency, the Lower Churchill project and transmission line.

Linking the Conservative family feud with the Churchill Falls deal is curious.  While it plays well with the local tin-foil hat brigade – see the comment on the Globe story from “Calvin St. John”, for example – the federal government didn’t play a role in that project except as a Joe Smallwood negotiating ploy. 

Linking the 1969 BRINCO deal with the federal government isn’t a sure-fire way to secure federal cash.  A more successful approach would have been to look at a deal with both Ontario and Quebec of the type that the provincial government had in hand yet specifically rejected when it decided to “go it alone” three years ago.

There’s also no telling how the Abitibi expropriation will play with investors in Canada. American investors likely won’t look favourably on it at all.

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Uncomfortable words: AbitibiBowater version

Bill 75 – the AbitibiBowater expropriation bill – contains a clause which holds that no legal action may be taken against the Crown as a result of anything done in the bill or as a consequence of the bill.

It’s a privative clause, an idea from administrative law that shields an adjudication panel from judicial review of its decision.  In the expropriation bill, the cabinet is established as the administrative panel which will set compensation for assets expropriated under the bill.

Nice power if you can get it.

The Premier has a thing for privative clauses. 

He argued, for example, that such a clause existed in the 1985 Atlantic Accord.  In Ruelokke v. Government of Newfoundland and Labrador, the provincial Crown argued that a section of the agreement which said that the decision of a panel to appoint a chief executive officer was binding on both the provincial and federal governments (the parties to the agreement) really meant that no courts could review the matter.

The judge in the case rejected the argument flatly.

He can read plain English.

In that context, read what uncomfortable words the current Premier uttered on privative clauses when he was leader of the opposition, in debate on a bill regarding Fishery Products International. Under section 11 of Bill 65:

11.1 (1) An action or proceeding, including an action or proceeding for compensation or damages, shall not be instituted or continued against the Crown or a minister, employee or agent of the Crown based on a cause of action arising from or incidental to the enactment or application of a provision of this Act.

(2) A cause of action against the Crown or a minister, employee or agent of the Crown arising from, resulting from or incidental to anything mentioned in subsection (1) is extinguished.

Bill 75 – the AbitibiBowater expropriation  - contains the same sort of wording in section 11 of that measure.  There’s also a specific clause earlier on that quashes a specific court case arising from earlier legislation enacted by the Grimes administration in dealing with Abitibi Consolidated as it then was.

Back then – March 2002 -  this is what Danny Williams said about privative clauses:

It did not have to happen. We have a black eye now on the business reputation of this Province. People do not like heavy-handed intervention. They do not like it, and that is what happened in the business community. The national media are looking at it and they now see our intervention as heavy-handed. If it had happened back in April of last year, back in May of last year, there would have been no problem.

The hon. Member for Lewisporte talked about his concern about a privative clause. We all share that concern. There should be no need for a privative clause. There should be no need to hide behind your mistakes, so that people who have a right to sue you can rightfully sue you. We have done it; it is out there. You have this unique legislation that talks about privity, so you cannot sue us because we made mistakes. That is wrong. That could have been prevented. The legal opinion that you had last spring said that you could change that legislation for public policy reasons, and you did not do it.

How times change.

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AbitibiBowater expropriation: bare-headed public policy

Like many things in local politics lately, the AbitibiBowater expropriation bill is one of those things in which it is hard to separate the history (and facts) from the political histrionics.

We are told the bill  “repatriates” resources from a company which, by closing its paper mill,  had broken the sacred trust under which it had received access to public resources.  This is an end to the supposed resource “give aways”.  It poses a struggle, in this case over resources, putting “us” against “them”, with “us” being led by the one leader of all leaders who can do no wrong and in whom all should repose great and unquestioning trust despite the many and evident questions about the move.

Before getting into other issues, let’s establish at the outset what the expropriation bill (Bill 75) does.

First, the bill cancels with immediate effect all licenses held by AbitibiBowater in its central Newfoundland operations.  This includes the original 1905 charter lands granted to the Anglo-Newfoundland Development company as well as all other leases and licenses the company inherited (purchased) from its predecessors. [This is arguably an expropriation as well.  See below]

Second, Bill 75 quashes an active court case in which Abitibi was suing the provincial government over the terms of Bill 27.  In 2002, the Grimes administration revised a series of licenses to give them a common expiry date in 2010.  At the same time, these licenses were tied to the operation of a specific machine at the Grand Falls mill such that if Abitibi shut it down before 2010, the cabinet could cancel the licenses by order in council before 2010.

Third, the bill expropriates all the company’s hydro-electric assets.  This includes those involved directly in supplying power to the mill as well as Star Lake which was a venture entirely separate from the mill operations.

Those are the key elements of the bill. 

With that done, let’s establish that Bill 75 was introduced with great haste.  While there was some indication government was considering an expropriation, there was no warning of this measure until it appeared in the legislature. The premier himself conducted a hastily arranged briefing for the opposition.  He obtained their consent to move the bill through all stages in a single afternoon with scarcely any substantive discussion in public.

We know that the move was hasty since both opposition party leaders discussed urgency.  Liberal leader Yvonne Jones said “we certainly understand that there is no urgency here…” while evidently there was. Parties to the expropriation portion of the bill - including Fortis Generation, Enel and Sun Life – for example received notice only a handful of minutes before the bill was introduced in the legislature.

New Democratic Party leader Lorraine Michael said this:

I think we understand why the briefing had to be at such a last minute moment, to put it that way.

…

So, while there is urgency about what we have to do today, we also have to take those urgent steps with caution as well.

The Premier did make reference to urgency, although he was not keen to explain why the expropriation bill appeared when it did:

At that point, of course, we felt that this was certainly an urgent matter that should be dealt with forthwith.

Immediately prior to that he recounted that government issued a demand letter to AbitibiBowater on the preceding Friday for the transfer of “assets” to the Crown at no cost with a  response demanded by mid-day on Monday.  On Monday, the company replied he wished to discuss transfer of the assets as well as appropriate compensation.

This haste is important.

In the ordinary course, there was plenty of time to negotiate the closure of the mill and the disposal of its assets.  Abitibi announced the closure for the first quarter of 2009 and this is generally understood to have meant the end of March 2009.  Orderly, negotiated closure is what took place in 2005 with the closure of Abitibi’s Stephenville operation.  In that move, government allowed the company to remove a relatively new paper machine from the province rather than move it to Grand Falls to replace a unit installed in 1926. 

That was a moveable asset.  The assets at Grand Falls are all fixed in place. The hydroelectric assets could have been integrated into the provincial power grid based on a negotiated deal of the type seen previously with both Kruger and Abitibi.  From a public policy standpoint, it really doesn’t matter whether the hydro power comes from private sector or public sources as long as it comes. If Abitibi demanded an exorbitant price, the province’s hydro utility  could simply refuse to purchase the power and in its monopoly position, Abitibi would be left with assets but no cash.

Likewise, the mineral rights associated with some of the licenses also have lasting value to both the license holder and to the provincial government.  But who really cares if a mine grew on Charter lands, for example, run by Abitibi or under a license through Abitibi to a third party.  After all, that’s what happened at Buchans.

As for timber, some have speculated that the wood might be exported to feed other paper mills.  This misses the fairly obvious point that Abitibi is removing production – some 800,000 tons globally  - from its system.  As such, it isn’t likely to have wanted to remove the timber for use in other mills, especially when those mills are a considerable distance from Newfoundland.

Even if the company did want to export the wood, the provincial government has every legal right to establish licenses and taxes for exporting timber from the province. The resources couldn’t have gone cheaply, if at all, unless the provincial government consented.

The timber, though, had an evident value within the province.  It could have gone – and may still go – to Kruger or to other commercial operations.  Here again, from a public policy standpoint, it really doesn’t matter whether Abitibi used the licenses and made paper or furniture.  The key public policy goal  is to ensure that the resources are used to generate economic activity within the province.  The legislature has all the power it needs to ensure that happens.

Ultimately, the legislature had the power to establish terms and conditions, new licensing regimes or even to expropriate if need be.

In its admitted haste, though, the legislature has effectively jumped the gun. The expropriation bill referred to an event – the closure of the mill – which has not yet occurred, even though in public statements politicians talked of it as though it had happened some time ago. The licenses and power generation are all crucial to the mill operations. Little surprise that the company ceased logging operations within a week of losing its licenses. For Abitibi to accept any temporary or conditional licenses for timber issued under Bill 75 would be to acknowledge the cancellation of the

Expropriation is usually a last resort.  In this instance, it was  - in effect - the first resort.

It may prove to be a weak measure.

As commentator Madelaine Drohan notes:

As for the legal case, Mr. Williams contends that the 1905 agreement clearly ties the rights to the operation of a mill in Grand Falls-Windsor. No mill, no rights. Yet the fact that the Premier felt compelled to pass legislation to this effect seems to indicate that there is room for a different interpretation.

That’s not the only weakness in the case.  The provincial government has already conceded that Abitibi held more than a mere lease to the lands, timber and minerals.  In the legislature, natural resources minister Kathy Dunderdale spoke explicitly of Abitibi and resource ownership:

The company also acquired ownership of land through allocation of Reid Lots. Reid Lots were parcels of land granted to the Newfoundland Railway between 1893 and 1909. Originally intended to be land bordering the railway, a provision was included that where such land was deemed unsuitable the railway had the option to select lands elsewhere. The AND Company [Anglo-Newfoundland Development] secured title to a number of Reid Lots as it proceeded to develop the Grand Falls mill. [Emphasis added]

Earlier in 2008, the provincial government engaged in negotiations with Abitibi to purchase the Charter lands from the company.  Purchase carries with it the implicit assumption that something is owned.  A landlord does not purchase a lease from a tenant. One purchases an asset from an owner.  As the Telegram reported in October:

Following a meeting in St. John’s with representatives of CEP, Dunderdale said the province is close to a deal with AbitibiBowater on the repatriation of Charter lands, which will see the province pay the company millions of dollars to purchase many thousands of hectares of leased lands.

The AbitibiBowater case may well prove very costly for the provincial government if it gets to court.  The provincial government doesn’t have a solid record for much other than going bare headed at public policy.

In the offshore ownership case, the provincial government had legal advice that its case was weak.  It lost in both the Newfoundland supreme court and the Supreme Court of Canada on essentially the same grounds.  A desperate gambit to shore up a weak position failed miserably.   Similarly in the water rights reversion case, the provincial government threatened the financial interests of the companies that backstopped the Churchill Falls deal.  People conveniently forget that it was the bondholders – not Hydro Quebec – that challenged the water rights reversion act in court and won.

By the same token, Danny Williams has usually been good at tough talk ending in a settlement for far less than he ever demanded.  That was the pattern in the 2005 federal transfer deal with the federal government and in the Hebron negotiation.  When things have gone to court – Henley v. Cable Atlantic and Ruelokke v. Government of Newfoundland and Labrador – the Premier has lost and lost badly.

There is still room for a negotiated settlement here and one which sees Abitibi and other other interest holders – Fortis, Enel, and Sun Life – rewarded handsomely based on the weaknesses of the government’s case.  It wouldn’t be the first time Danny Williams bluffed at the front, lost big and then claimed victory anyway.  In this case, the compensation payment would channel through the province’s energy corporation, the proud owners of the expropriated hydro assets.

The terms of the settlement deal?  Well, those would be subject to a confidentiality agreement of course and the cash payments would be buried away behind the veil of secrecy dropped last spring over the energy corporation.  No member of the public would ever know the real cost of the expropriation bill.

The cost to the public of bare-headed public policy sometimes isn’t clear until long after the fact and at the outset it is usually hidden with histrionics.  That was the case in water rights, the offshore ownership and even with NALCO, the energy corporation’s namesake.

It’s likely going to be the case with Abitibi as well.

-srbp-

 

Note:  Drohan’s blog post refers readers to Bond Papers with a note that your humble e-scribbler provided the text to the 1905 pulp and paper act plus the AND charter.  Here’s a hat tip for the traffic, but credit where credit is due:  all we provided around here was a link to the Globe and Mail which provided it in pdf from the day the story broke.