What a difference a week makes: the latest Hebron project stories

First - June 9 - a deal was "close".

There were just a few minor details left to sort out.

Mark Nelson, Calgary-based president of Chevron's Canadian subsidiary, said Hebron discussions are focused on such issues as how much of the project has to be built locally, how the province will pay for its share, how ownership interests will change to make room for the province.

Then the deal was perhaps as close as "next week."

The latest is that there's just a 25% chance the deal can be closed by the time the Premier speaks to the NOIA conference next week.

The biggest hold up - by logical extension there are other hold ups - is the "confidentiality agreement".

The curious thing about that version of the story is that Bill 35 - the latest amendments to the energy corporation legislation - essentially make just about everything connected to the deal and the project entirely confidential and exempt from just about every form of public disclosure except what is required by the offshore regulatory board.

Maybe everyone should just kick back with a cold one and let the whole thing work itself out. When there's a real deal, there'll be an announcement and not before.

Face it. If the stories are true the parties would be a long way from a deal at this point, like maybe 75% of the way from a deal. (Get it? If there's only a 25% chance of it happening next week, there's a 75% chance it won't and that could be a way of saying the final version of the deal is a long hot summer away from happening. That would still be well within the time frames people have been talking about for project start-up; it's just not as quickly as some of the local speculators have been hoping.)

They still have to sort out:

• a confidentiality agreement, in addition to the confidentiality agreement in the memorandum of understanding (Didn't that portion of the MOU alone take something like four months to hammer out?);
  
• how much of the project will actually be built locally given local labour market shortages;
• how the original corporate partners are going to re-divide their shares to give some to the provincial government; and,
• how the provincial government will actually pay for its share of the capital costs. That's the only thing that might be in question since the energy minister clearly told the legislature this past spring that "[t]he funds will be transferred from the government to the energy corp to purchase the equity in Hebron as well as in the White Rose extension."

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Never forget to remember

Maxime Bernier is the latest politco afflicted with what appears to be a virulent disease: amnesia politica.

“He doesn't remember forgetting them [the classified briefing notes], that's the question,” one source said.

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CDS wins national PR award

Outgoing Chief of Defence Staff General Rick Hillier is the first recipient of the Canadian Public Relations Society's (CPRS) president's award for outstanding public relations and communications management.

Hillier received the award at the CPRS national conference in Halifax, June 10.

In making the award, CPRS president Derrick Pieters said "General Hillier was selected for this honour for his outstanding leadership in communications and excellence in communications management. He has also demonstrated a commitment to two-way communication practices and relationship management."

CPRS represents more that 1800 public relations practitioners across Canada. Members commit to following a code of professional standards. They are dedicated to promoting professionalism in the practice of public relations. CPRS was founded in 1948 and this year celebrates its 60th anniversary. Today, CPRS is a federation of 16 member societies based in major cities or organized province-wide.

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From the G&M: "The broken chain of answerability"

By one definition, a gearhead is a person who is extremely interested in computer hardware and software and they work.

Well, if that's the case, then Donald Savoie could be called a govhead. He's got an extraordinary interest in and knowledge of the hardware and software of government.

Savoie holds the Canada Research Chair in Public Administration and Governance at the Universite de Moncton. He's an accomplished public servant and academic with a resume that would make even the highest achievers feel inadequate.

His most recent book - Court Government and the Collapse of Accountability in Canada and the United Kingdom - won't make the national best seller list, but among academics and others interested in how government runs, Savoie's writings will become required reading.

Savoie condensed part of his recent book into a two page article last month in the Globe and Mail. His observations should startle Canadians into re-examining the federal and provincial government sin the country. Likely, Savoie will go unnoticed, not just unheeded.

Let's hope not:

The relationship among Parliament, the prime minister, ministers and public servants is in need of repair, and we are ill served by pretending that all is well. We should no longer tolerate court government, by which a political leader with the help of a handful of courtiers shapes and reshapes instruments of power at will. Those with the power to introduce change for the better are reluctant to do so because they enjoy being able to wield tremendous power.

We need to define, preferably in law, the role of the prime minister, cabinet and the public service and give public servants an administrative space of their own to manage government operations, while recognizing that the prime minister and ministers must always have the authority to override public servants in all matters not covered by statutes.

...

What is to be done? The time has come to engage Canadians in a debate on the role of Parliament, officers of Parliament, the prime minister, cabinet and the public service, and for Canadians and public servants to tell Parliament, "Heal thyself." Political parties need to take the lead and launch a meaningful debate on the state of our national political-administrative institutions. The issue is vitally important, and parties should engage their members in the debate. It provides an opportunity for political parties to be more than election-day organizations, to offer meaningful opportunities for involvement and to become effective vehicles for promoting thoughtful debates and change.

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Create wealth fund: OECD

The Organization for Economic Co-operation and Development believes that a Norway-style overseas investment fund would be beneficial for Canada:

“It's not [only] an exchange rate play. It's a more fundamental issue” of investing the proceeds for the future, and helping manufacturing in Canada at the same time, said Angel Gurria, secretary general of the OECD, in Ottawa on Wednesday to release its report on the Canadian economy.

The OECD wants Alberta “not to be so procyclical ... not to spend all those revenues now,” said Peter Jarrett of the OECD economics department.

The federal government should set up a fund too, and set aside any windfalls in a transparent manner, he said.

The Norway idea is a popular one among some academics and government officials but has never gained traction among politicians in Canada.

Ottawa has said in the past that it can't calculate how much money it gets from the energy industry, given the substantial spin-offs of investment and production in that industry, Mr. Jarrett said. But there's nt reason it couldn't create a model.

“There is scope for doing so,” he said.

Bond Papers has discussed the idea at least once before. So far local pols have ignored the idea.

You find a summary of the OECD report at oecd.org.

Don't cut yourself on the edge...

Earlier today, from the CPRS national conference in Halifax, Joseph Thornley liveblogged a panel presentation on the impact blogs, youtube and a raft of other new Internet phenomena are having on employee communications.

CBC employees will enjoy the bit from Amanda Brewer and the impact the Internet had on the 2005 strike. Brewer was a CBC employee who left the company after the strike, took a job with Hill and Knowlton which has now been hired by Ceeb management to help the Corp cope.

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CPRS-NL submission to the Cameron Inquiry

[Editor's note: Following is the text of the submission made by the Newfoundland and Labrador Chapter of the Canadian Public Relations Society (CPRS) to the Cameron Inquiry, under the call for submissions in Part II of the Inquiry.

The only editorial change in the submission made here is to move the acknowledgements from its position at the front of the original document to the end.]

Submission to the Commission of Inquiry on Hormone Receptor Testing

by

Canadian Public Relation Society –Newfoundland and Labrador (CPRS-NL)
May 15, 2008

Legal roflmao of the week

roflmao.

Rolling on floor laughing my ass off.

Internet shorthand.

Anyway.

Post a few court decisions and someone sends along a link to a blog that is built entirely on the humourous goings-on in courts south of the border.

That's the United States, since this is being written in Canada.

Lowering the bar is the blog.

It's most recent post describes some of the arguments presented in FCC v. Fox Television. That's a case at the heart of which is whether or not fleeting uses of four letter expletives are sufficiently shocking to audiences that they should be banned entirely from broadcasting between the hours of six and 10 in the evening.

Seems the lawyer for Fox began his argument by using two of the seven words you can't say on television repeatedly and in full.

There's a link to another post about a Pennsylvania case where fines where handed out to a person being deposed and his counsel for the use of the infamous "f*ck" 73 times in the course of a deposition, while the word contract only came up 14 times. The fine worked out to $367 per "f*ck".

Some people have no sense of humour.

In any event, turns out that the Wall Street Journal has a law blog, which is is well worth checking out on occasion. There's also SCOTUSblog which is, as the name suggests, a blog about the Supreme Court of the United States. These both tend toward a more serious raportage of legal matters than the stuff you'll find at Lowering the bar.

In Canada, you can find The Court, which is a rather serious blog from Osgoode Hall law school about the Supreme Court of Canada and its decisions. A reference librarian from SCC has his own blog, titled Library boy. google around enough and you'll find a few more worth stopping by if you have a sudden taste for things about lawyers written by lawyers.

Too bad we don't get this kinda stuff from the local law courts. Something says there'd be plenty of really funny stories to relate.

Barristers may feel free to send their submissions for consideration.

Update: In order to ensure there is no confusion, the phrase "for consideration" used above should in no way be construed as an offer to pay for any posts a barrister may submit. Words are funny things and lawyers are good at using them. Let's make sure there is no confusion.

Further to that point, posts may be made under a pseudonym provided that your humble e-editor knows who is making the submission. The local bar is a small one and a pseudonymous post might be in order under the right circumstances. Barristers should be somewhat creative in using a pseudonym. Rumpole is right out, but any of the other characters are fair game.

Speaking of Rumpole, undoubtedly he'd have had something to say about the initiative in the United Kingdom to change the style of dress in court. There's a discussion paper on the subject, complete with illustrations of the old and the proposed new.

The reaction to the proposal - which could see an end to wigs in British courts - has been somewhat mixed. Here's a link to the Inner Temple library blog with posts on the reaction as covered in the media.

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From the Supreme Court of Canada

Where someone is from would obviously affect how one applies the Charter.

Was that sarcasm clear enough for the proponents of the ghetto school of judicial appointments?

Still, here's a case for the legally mind that's worth noting:

The accused made an incriminating statement, after four hours of resistance, immediately after being confronted by the interrogating officer with a prior statement obtained from him in violation of his constitutional right to counsel. The trial judge admitted the latter statement and convicted the accused on three counts of sexual interference. The Court of Appeal upheld the convictions.

Held: The appeal should be allowed and a new trial ordered. The impugned statement should have been excluded pursuant to s. 24(2) of the Canadian Charter of Rights and Freedoms.

A statement is tainted by an earlier breach of an accused’s constitutional
rights if the breach and the impugned statement can be said to be part of the same
transaction or course of conduct. Here, the required connection between the two
statements was direct and obvious. It was temporal, causal and, to some extent,
contextual. The interrogating officer concluded that he would not obtain the
incriminating admissions sought unless he confronted the accused with the latter’s
earlier inadmissible statement. He therefore proceeded to do so. In this way the
interrogating officer made use, knowingly and deliberately, of an earlier statement that the police themselves had obtained from the accused in a manner that infringed his Charter rights. This alone was sufficient to taint the subsequent statement and to cry out for its exclusion pursuant to s. 24(2) of the Charter. To hold otherwise would be to invite the perception that the police are legally entitled to reap the benefit of their own infringements of a suspect’s constitutional rights. And this would bring the administration of justice into disrepute.

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The elements of a good communications plan

Courtesy of Dave Fleet, a step by step guide to communications planning.

He starts - where else? - with a good overview.

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And it isn't in code

Israel's security service is blogging in hopes of attracting a few good nerds into the service.

Sounds like a farkocktah idea.

Who knows?

They might be on to something.

If you read Hebrew, you can check out the site here: Shin-Tech.

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D'oh!

Two "patriots".

One shags up a discussion of the courts.

The other shags up the current discussion on the Lower Churchill.

Both could have used a little fact-checking before launching into their tirades.

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To the crowd running Tammany Hall

St. John's municipal elections use mail-in ballots read by optical scanners.

The people running the thing should think about how their system works.

There's one way of screwing with the system technologically.

Then there's always the impact how the ballot is laid out can have on voters. Is it a coincidence that Doc and Ron were at the top of the columns separated by an abnormally long gap from the next name on the ballot and both won by handy margins?

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Things that go up...

Usually go down.

It's just a matter of when and how far.

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Related: "What goes up must come down"

Rest in peace, Jack. You earned it.

For every sleveen in politics, there's someone like Jack Byrne to keep your optimism alive.

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Truer words

"These numbers are ridiculous".

He should know.

We couldn't have said it any better.

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Back to reality

1. Two out of three residents voted for none-of-the-above. Before anyone gets too excited about the results of the St. John's municipal by-election, just take a look at the numbers.

Voter turn-out was about 33%.

The overwhelming majority of residents didn't vote. Period.

Even in a general election, voter turn-out is appallingly low. This by-election was nothing to crow about.

2. Municipal politics is no place for ideas.

While Doc and Ron both had help from professional advertisers, they ran campaigns devoid of any political oomph or presence. There were plenty of slogans but nothing that could even be mistaken for substance.

Voters weren't engaged in this campaign because no one engaged them.

Municipal politics is no place for ideas. This by-election proved it in spades.

No one should wonder why the city is in a financial mess. Check the size of the subsidy for Mile One today versus when these guys got elected in 2005.

Then look more closely at the Sink Hole's financial statements than accepting what are likely to be the councillors assurances that the thing is breaking even without an anchor tenant.

3. Then there are the surprises.

Debbie Hanlon.

Opposed by the Ron Ellsworth municipal machine and a bit of spite from another corner.

Wins with more votes in Ward Four than Ellsworth had the last time out in the general election. She put sweat equity into the job where Ellsworth just flicked cash at it.

The municipal system is made for a politician who works the phones tirelessly early on and has really huge name recognition.

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ECNL - Part 2 - Delayed

The second part of the mini-series on the energy corporation legislation is delayed.

There are amendments either already introduced or pending, some of which could change the meaning of specific sections of the bill dramatically.

Better to wait until the whole thing is finished and then put together a general description of the legislation and what the energy corporation will look like.

One interesting tid-bit that's turned up already: last fall, natural resources minister Kathy Dunderdale made a comment in an interview with Ted Blades, a comment that seemed strange at the time.

She said something to the effect that Hydro would buy power from the Lower Churchill. It seemed strange at the time since any Lower Churchill development corporation seemed like a natural subsidiary of Hydro itself and therefore, Dunderdale would have the company buying power from itself.

Turns out she was right, but the rest of us couldn't have known it in September 2007. The plan, as contained in the EnerCorp strategic plan - released in March 2008 - is to have Hydro as a subsidiary of EnerCorp alongside all the companies that used to be subordinate to Hydro.

So yeah. In order to get power to replace Holyrood generation, Hydro would have to buy power from its sister company.

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Energy Corporation of Newfoundland and Labrador (Part 2)

[This post was originally scheduled to post in June 2008.  For some reason, it never appeared. Your humble e-scribbler found it recently and decided to post it retroactively with the original date.  Note that it is an unedited draft. Some of the links may have changed since 2008.  The comments come entirely from the original version of the bill and were made prior to any actual experience with the corporation.]

In Part 1, we offered some links to information on or related to the Energy Corporation of Newfoundland and Labrador (EnerCorp).

In this part, we will take a look at some specific issues that have come up as a result of proposed amendments to the energy corporation act.

Space does not permit a detailed dissection of the entire energy corporation and all the issues surrounding it nor will the following offer any views on the merits or demerits of the energy corporation and the legislation under discussion.

Instead, we will look at four specific aspects dealt with in the provincial government news release on the amendment bill and attempt to describe what the provisions of the bill mean.

1. Establish public accountability process.

The Energy Corporation Act establishes that the corporation is accountable to the legislature through the minister and cabinet.

EnerCorp is an agent of the Crown. As such:

A Crown corporation that has agent status enjoys the constitutional immunities, privileges and prerogatives that are enjoyed by the Crown and can bind the Crown by its acts.

The Crown is ultimately fully liable and financially exposed for all actions and decisions by its agent corporation while the corporation is operating within its mandate. In other words, the corporation's assets and liabilities are the assets and liabilities of the government. [Emphasis in original]

Bill 35 further develops the accountability process in several specific ways.

First, it establishes that unless otherwise indicated in the approval given by cabinet to establish
a subsidiary, the subsidiary will be incorporated under the provincial Corporations Act or the appropriate legislation of any other jurisdiction.

A subsidiary established in this way is not an agent of the Crown. That means that:

the government is not legally liable for the specific actions of the corporation, unless the corporation acts under explicit direction of the Crown, and has, in the eyes of a court, created a common-law principal-agent relationship.

A non-agent corporation would normally be subject to federal, provincial and municipal taxation like private sector corporations.

As well, the subsidiary may be a partnership involving both EnerCorp and non-EnerCorp companies. The agreement establishing the partnership or joint venture may specify financial arrangements, the distribution of shares, as well as the distribution of seats on the subsidiary's board of directors.

Bill 35 does not alter the existing subsidiaries, namely Newfoundland and Labrador Hydro, Churchill Falls Labrador Corporation, Twin Falls Power Corporation, Lower Churchill Development Corporation (non-operating) and Gull Island Power Corporation (non-operating).

Overall, this approach is consistent with past practice in Newfoundland and Labrador and with the Government of Canada.

Second, EnerCorp is required to hold an annual general meeting to which the public are admitted and to issue an annual report. (s. 5.1 and s. 5.2) A private sector corporation's annual general meeting would normally be held to allow shareholders to vote on certain measures such as electing new directors and to receive reports from the corporation.

In this case, however, directors of EnerCorp are appointed by cabinet. The subsidiaries are governed by their own articles of incorporation. Members of the public may attend such a meeting, but there is no indication what status they might have beyond that of silent observer.

In the case of the annual report, EnerCorp is required to present its consolidated financial statements and such other reports on its activities as it may wish to report on or as directed by the minister. Whether or not this provision applies to any subsidiaries would appear to depend on the articles of incorporation.

Third, Bill 35 provides that EnerCorp and its subsidiaries are subject to audit by the auditor general, to the access to information act and similar statutes, the extent of disclosure beyond cabinet is restricted more than in the existing legislation.

For example, the access to information act (ATIPPA), already provides for withholding commercial information. Bill 35 changes that significantly by defining "sensitive commercial information", giving EnerCorp's chief executive officer the power to determine what constitutes sensitive commercial information under the Act and requiring that his decision be followed by the auditor general and other officials

Under Bill 35, "sensitive commercial information" is defined as:

information relating to the business affairs or activities of the corporation or a subsidiary, or of a third party provided to the corporation or the subsidiary by the third party,...

In other words, all information is potentially "sensitive."

The test or procedure for determining sensitivity is given at s. 5.4:

where the chief executive officer of the corporation or the subsidiary to which the requested information relates reasonably believes

(c) that the disclosure of the information may

(i) harm the competitive position of,

(ii) interfere with the negotiating position of, or

(iii) result in financial loss or harm to

the corporation, the subsidiary or the third party; or

(d) that information similar to the information requested to be disclosed

(i) is treated consistently in a confidential manner by the corporation, the subsidiary or the third party, or

(ii) is customarily not provided to competitors by the corporation, the subsidiary or the third party.

If the corporation consistently considers the number of its employees to be sensitive information, then it must be withheld from disclosure.

In the case of the auditor general, the same general approach applies. As well, in the event of a dispute, the chief executive officer's decision must be followed with the withheld information provided to cabinet in a separate report:

In the case of a disagreement between the auditor general and a chief executive officer respecting whether information in a draft report is commercially sensitive information, the auditor general shall remove the information from the report and include that information in a separate report which shall be provided to the Lieutenant-Governor in Council in confidence as if it were a report to which section 5.5 applied.

Some additional specific types of sensitive information are given in Bill 35 which must be withheld. These include:

financial or commercial information, including financial statements, details respecting revenues, costs and commercial agreements and arrangements respecting individual business activities, investments, operations or projects and from which such information may reasonably be derived,

and

information respecting legal arrangements or agreements, including copies of the agreement or arrangements, which relate to the nature or structure of partnerships, joint ventures, or other joint business investments or activities,....

It is not clear whether cabinet may make or would make such information public general terms or if it would be kept confidential. It is also not clear to what extent any changes to the organization of a subsidiary - for example, in its ownership other than a complete withdrawal of any EnerCorp interest - would be disclosed under this Act.

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To infinity, and beyond - redux

Planetspace, Inc., an American company that lost in its bid to develop NASA's Commercial Orbital Transportation Systems phase one demonstrations, is lobbying the Government of Newfoundland and Labrador for financial assistance for an unspecified venture.

Planetspace was one of 13 companies in the race to develop the commercial orbital system but lost out earlier this year to Orbital.

Mark Doucet, of Cabot Capital Network Projects is the registered lobbyist. Doucet has registered to lobby the Premier's Office, the Business Investment Corporation as well as the business, finance, tourism, innovation and transportation departments for a "financial incentive request".

The Globe and Mail reported last year that Fred Doucet, former chief of staff to Brian Mulroney, was lobbying the Government of Canada for $45 million to support development of a space tourism venture as part of the Nova Scotia project.

Fred Doucet, president and chief executive officer of Fred Doucet Consulting International Inc (FDCI), is listed in the federal government registry as a lobbyist for Planetspace. Mark Doucet is listed in the registry as a vice president of FDCI.

Fred Doucet's name popped up early in 2008 as the go-between who arranged meetings been Mulroney and German businessman Karlheinz Schreiber. He denied knowing anything about financial transactions alleged to have taken place at the meetings.

Fred Doucet is reported by the National Post to have been a business partner of former Premier Frank Moores in Government Consultants International.

Planetspace signed a deal in August 2006 with the Government of Nova Scotia for 300 acres of land as part of a plan to develop an orbital launch facility. Bond Papers reported the Nova Scotia deal in July 2007.

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