11 December 2017

Don't blame me (-dia) #nlpoli

Now that Muskrat Falls is officially a boondoggle,  all sorts of people are rushing forward to criticise it.

Others are also rushing forward to ensure we all know that they were on the side of the angels back in the day and so, as Brian Jones pleads this weekend in the Telegram, we shouldn’t “blame the media for Muskrat Falls.”

For the past year and a half,  Brian tells us,  people whom he calls “trolls” have been writing and calling him to ask why the local media did not reveal all the details about Muskrat Falls as the thing was unfolding.

“I always point out a basic fact,”  Brian says,  that “ the Newfoundland media, not just The Telegram, have covered every aspect of Muskrat Falls since at least 2010.”

Wonderful if it was a fact, but no.

Not a fact.

06 December 2017

Plain English , Disclosure, and Bad Public Policy #nlpoli #cdnpoli

Right off the start, let's affirm that Nalcor was created by an administration that was, from the time it took office, notorious for its efforts to flout the law in order to keep information secret.

Polling information was the first sign of the problem bit wasn't the last example.  There was a demand for $10,000 for copies of speeches delivered in public by the Premier to what ultimately became a complete re-write of the law in 2012 to make legal what the government had already been doing to keep all sorts of secrets.

It's easy, therefore, to believe that the Energy Corporation Act,  passed in 2007,  follows the same pattern.  In many respects, you'd be right.  For example, we do not know why the government created the energy corporation in the first place.  In second reading on the bill,  then energy minister Kathy Dunderdale famously spoke only 101 words in her speech introducing it.  Not a word of her comments then or later ever explained why the government was setting up Nalcor,  what it was supposed to accomplish and how it would be organised.

The sections of the Energy Corporation Act that everyone is now upset about came along in early 2008.  They were introduced, as the story went at the time, to address concerns from the major oil companies who would be part of a deal announced later that year to develop Hebron.

The issue for this post, though, is about the chronic misrepresentation of what those sections say whenever people talk about the current controversy over embedded contractors.  Here's the way James McLeod summarised the issue from a decision - not yet public - from the province's privacy commissioner:

The Energy Corporation Act, which is the law which creates Nalcor and gives it all its powers and mandate, says the company should withhold information “relating to the business affairs or activities” of any other company that Nalcor works with. 
The OIPC [Office of the Information and Privacy Commissioner] ruled that billing rates of contractors would clearly apply, and that because broader information previously released by Nalcor could be used to calculate roughly how much individual contractors bill, individual company names tied to specific contractors should also be kept secret.
Section 5.4 of the Energy Corporation Act Act says that the chief executive office may withhold commercially sensitive information belonging to Nalcor and its subsidiaries and shall refuse to disclose commercially sensitive information for a third party. 

But you can't stop there because the section adds an important bit of information next:
where the chief executive officer of the corporation or the subsidiary to which the requested information relates, taking into account sound and fair business practises, reasonably believes...
falls into either of the two categories the section then describes, complete with characteristics.

In other words, there isn't mandatory, automatic, and broad secrecy for something that is vague.  The Act places the decision at the discretion of the chief executive officer AND gives that person some guidance as to what "commercially sensitive information" means.

In the embedded contractors case,  Nalcor boss Stan Marshall determined what would go out the door and what wouldn't, based on whatever advice he got from lawyers.  No one has apparently asked Stan to explain his reasoning and, for sure, no one at Nalcor these days is likely to volunteer a simple piece of factual information.  These folks, after all, still release pdfs of documents that are designed to frustrate copying and pasting for data analysis.

We can make a reasonable assumption, though, that because some of the contractors  - maybe the one-man shops - consider the information to be commercially sensitive for them,  Nalcor won't release it.  That's a legitimate protection of third parties. Nalcor just needs to explain that. 

As for the privacy commissioner, it's doubtful he buggered up the plain English of all this.  And from McLeod's story, it appears that the commissioner has picked up on the idea that two partial disclosures could lead to the disclosure Marshall decided against.  That's legitimate as well.

But before we think about changing this section of the Act,  everyone needs to get their facts straight, stop, and think hard.

Bad public policy usually comes from  a lack of consideration. That includes times when there hasn't been adequate debate in the House but it also comes, as in the recent Muskrat Falls inquiry, when the government makes a hasty decision based on something on Twitter or open line that itself was driven by a few noisy voices with a raft of agendas, interests, and knowledge. That doesn't mean we should not have an inquiry but it does mean government folks should have made a decision based on facts, information, and knowledge.

In the case of the MF inquiry,  three of the terms are actually already known and one of them - the PUB exemption - actually dates from 1998.  It looks for all the world like the folks who drew up the terms of reference didn't know the facts themselves or what they were really trying to find out.  They also left out crucial time periods (anything before 2012)  and crucial actors (all the politicians) in the debacle.  The PUB bit is actually just a sideshow.  The result will be a long, costly, and ultimately inconclusive commission that will miss most of the details needed to avoid a similar debacle in the future.  That's the opposite of what the government promised when it announced the terms of reference and the commissioner.

Words matter.  Disclosure is important.  Facts are crucial.

And in the embedded contractors story,  that last element is in short supply.  We could all make lots of mistakes as a result, just as we made lots of them in the past - like in Muskrat Falls - by ignoring facts that were,  as in the Energy Corporation Act,  in plain sight all along.


21 November 2017

Multiple Interlocking Rationalizations #nlpoli #cdnpoli

In announcing an inquiry into some aspects of Muskrat Falls on Monday, the Premier muddled up some numbers that suggest the confusion at the heart of Monday’s big news.  He said that the inquiry will explain how a project that was originally supposed to cost $5.0 billion at the wound up costing $13 billion or more.

Then he announced the terms of reference for an inquiry that focused on the pro forma exercise called “sanction” that happened when the project was supposed to cost $6.2 billion.  The $5.0 billion figure is from November 2010.  That’s when many of the crucial decisions took place but, as far as the terms of reference go, its outside the bounds of the inquiry.

Justice Richard LeBlanc also won’t look at the political decisions behind the project, the relationship between Nalcor and the Premier’s Office, the governance of the corporation, or any of the other major elements of what became Muskrat Falls. All of those aspects would explain the political foundation of the project the Premier mentioned in his news conference but none of them are covered by the inquiry terms.  Instead, the inquiry will focus on the internal management decisions at Nalcor after 2012.

The specific subjects of the inquiry are listed in Section 4, which contains four sub-sections labeled a through d. Let’s run through each of them.

Energy Demand and Sanction

Section 4 (a) directs the commissioner to inquire into “the consideration by Nalcor of options to address the electricity needs of Newfoundland and Labrador’s Island interconnected system customers that informed Nalcor’s decision to recommend that the government sanction the Muskrat Falls Project. 

One supporter of the project famously said there were “multiple, interlocking business cases” for it.  What Nalcor, the government and its supporters actually offered multiple, interchangeable rationalizations.

In November 2010,  the key argument for the project was breaking the stranglehold Quebec supposedly held on electricity development in Labrador.  The project would ship power to markets through Nova Scotia.  The mention of Muskrat as the least-cost source of electricity for the island is found in paragraph nine of what is essentially a 10-paragraph news release plus a list of highlights.
Right off the bat, Nalcor didn’t present the alternatives at the time of project sanction, which is the starting point for the inquiry.  That happened in 2010, although it didn’t really because there is no evidence Nalcor ever examined alternatives to Muskrat Falls. The only mention of alternatives has been to the isolated island scenario, which means Nalcor never evaluated all options anyway.

In 2006 Nalcor did evaluate alternatives to the whole Lower Churchill project but that was for a different concept:  the LCP was supposed to be about power for export only, with local needs as a secondary consideration.  That’s an important detail because another key aspect of the 2010 announcement was that this was the original LCP, but with the tiny dam built first.

There’s also no order in council in which the provincial government approved a proposal from Nalcor.  There’s only OC2012-130 that lets Nalcor use Crown land:

 Under the authority of section 7(2)(a) of the Lands Act, the Lieutenant Governor in Council is pleased to authorize the Minister of Environment and Conservation to issue a licence to occupy Crown land to Nalcor Energy for an area not to exceed 4.3 hectares within the fifteen metre shoreline reservation at Muskrat Falls, Newfoundland and Labrador, for the purpose of hydroelectric generation, subject to the terms and conditions normally applicable to the issuance of such licences.
It’s dated December 4, 2012, well before the infamous filibuster and the actual formal ceremony announcing “sanction.”

This section will also not touch on the decision to double electricity rates and the rationale for paying for the project, all of which was political and all of which was decided in 2010.

Key Points to Retain:

  •  Without an amendment, the inquiry can’t look at decisions taken prior to December 2012 since the terms specifically identify Nalcor’s proposal for sanction as the focus. That happened in December 2012.  
  •  here’s no indication Nalcor presented any project justifications in 2012.
  • There’s also no order-in-council in which cabinet “sanctioned” Muskrat Falls.  It isn’t clear, therefore, what the commissioner will be doing to meet the first term of the inquiry.
  • The inquiry won’t look at the political decision to force domestic users to pay 100% of the cost plus profit (doubling rates), which was taken in 2010, not 2012.

 Cost over-runs

Section 4 (b)  is about “why there are significant differences between the estimated costs of the Muskrat Falls Project at the time of sanction and the costs by Nalcor during project execution, to the time of the inquiry.”

Key Points to Retain
  •   This will be the guts of the inquiry.
  •    It will be technical. 
  •    None of it is political.

Hello, 1998

Section 4 (c)  is about “whether the determination that the Muskrat Falls Project should be exempt from oversight by the Board of Commissioners of Public Utilities was justified and reasonable and what was the effect of this exemption, if any, on the development, costs and operation of the Muskrat Falls Project.”

This one is weird, as if the person who wrote the term had no idea what end was up.  The decision to exempt the LCP from the public utilities board was taken in 1998 because the project was entirely for export.  The PUB was entirely about domestic rates.  In the original scheme there’d have been almost no cost to pass on to consumers.

In 2010, cabinet did not have to decide anything about exemption since it was done long before it took office.

So given the amount of time the Premier spent blaming the former Conservative government for the mess he and his colleagues have cleaned up (not really – ed.),  giving the inquiry the power to call Brian Tobin to the stand is just nutty.

Key Point to Recall

  •   The exemption order predates the Conservatives return to power in 2003.

Oversight Committee Mania

Section 4 (d) is about “whether the government was fully informed and was made aware of any risks or problems anticipated with the Muskrat Falls Project, so that the government had sufficient and accurate information upon which to appropriately decide to sanction the project and whether the government employed appropriate measures to oversee the project particularly as it relates to the matters set out in paragraphs (a) to (c), focusing on governance arrangements and decision-making processes associated with the project.”

The adequacy of governance structures is a political question  - or one about internal government operations - but this term is written to focus on what Nalcor told people in government at the time of sanction in 2012.  In effect the wording precludes any discussion of the long-standing relationships involved in decision-making by and about Nalcor and focuses on whether or not Nalcor told government enough.

Since it doesn’t look like the key decision for government was in 2012,  this one might wind up being a lot more fun than informative.  A clever lawyer – like Jerome!  - should have a field day with this bit. As well, since the term is written to focus on what Nalcor did,  the fact the government made a certain decision gives the politicians an automatic excuse, if they want to take it. 

That’s really part of the problem with the whole inquiry terms of reference.  It is structured on the assumption Nalcor brought this forward in the same way it pursued Cat Arm or one of the other projects.  Nothing could be further from the truth.  This one has been primarily about politics since 2003 and arguably as far back as 1998.  

With a faulty set of assumptions underpinning it, this circumscribed inquiry can’t possibly find any meaningful answers to how we got into this mess in the first place.

That last sentence is the big take-away.


SRBP has followed the Lower Churchill project more closely than anyone outside government.  There are both short posts and detailed ones covering the entire thing since 2003 up to 2017.  There’s a tab at the top linking to some of the posts and others are easily accessible by using the search function.

 Feel free to use it and if you want to pose a question on something you may have missed you can find me @edhollett on Twitter or at ed_hollett@hotmail.com

20 November 2017

When a change is not a change: the NDP and Muskrat Falls #nlpoli #cdnpoli

One newsroom.

Two different interpretations of  federal NDP leader Jagmeet Sing's position on Muskrat Falls.

In Sarah Smellie's online story,  Singh had a few concerns and is "not comfortable" with the project.
But he didn't outright condemn the project. 
 "Right now I'm concerned … I'm concerned about those two pieces and I want to make sure that those are addressed. I'm not comfortable with a project that doesn't have those things addressed."
Yet,  in the story that went to air,  the provincial NDP were opposed to the project, as provincial leader Lorraine Michael had always been according to the voice-over.

New Democrats bobbed their heads up and down approvingly because that is the story they want us to believe.  It is the story they fervently believe in their own hearts:  Lorraine Michael and the NDP have always opposed Muskrat Falls.

The problem is that the story isn't true.

02 November 2017

The Poppy

According to the Royal Canadian Legion's Poppy Manual, the Legion will never authorize  the display of a poppy on "blogs or discussion groups even of a remembrance nature, as the Legion cannot control the text content of such forums [sic]."

A symbol of the defence of freedom can't be displayed in Canada on a website where Canadians exercise their freedom of speech.

Remembrance is impossible when the Legion has already forgotten.


08 September 2017

Fixing the date or fixing the election #nlpoli #cdnpoli

Arguably,  Justice Gillian Butler’s decision in a six year old case on the special ballot provisions of the provincial election law is one of the most significant political events in recent years.

Butler ruled the special ballot rules are unconstitutional since they deny an individual’s right to vote under the Charter of Rights and Freedoms.  Introduced in 2007 with unanimous support of all members of the House of Assembly, the special ballot rules allow people to vote at least four weeks before an election exists.

Among the first critics of the special ballot rules was Mark Watton.  He represented the Canadian Civil Liberties Association pro bono as an intervener in the case Butler heard.  In 2007,  though, Watton wrote a letter to the editor of the Western Star and later published it on his now-defunct blog nottawa.  SRBP reproduced it from the print edition.

The fight against the special ballot laws took four years to get to a court and another six for the case to end in a decision but the fight was worth it.

Most people likely haven’t read Watton’s letter and the fact it isn’t available online anymore means that people writing about the issue these days won't know any of the background to the story.  To remedy that and to give Watton his due,  here’s the letter in its entirety.

The provincial government might appeal the decision.  Hopefully it won’t since, as Watton explained a decade ago,  the law is unconstitutional.  There is no reason to disagree with Butler’s conclusion.  The only sensible task for justice minister Andrew Parsons and his colleagues is to introduce amendments to the especial ballot law in the fall sitting of the House. 

[Originally published in the Western Star and at nottawa,  Friday 14 September 2007]

28 August 2017

The Quebec Demon #nlpoli #cdnpoli

The fancy word for it is revanchism.

People who study words and language call it a borrowed word, meaning that we use it in English but got it from the French word.  In this case, it is the French word for revenge.

People familiar with history are most likely to associate the word revanchism with the struggle between France and Germany that lasted from 1870 until 1945.  The Prussians defeated the French in 1870 and took two territories – Alsace and Lorraine – that many in France wanted back. 

Desire for revenge for regain of the lost territories was an important aspect of French policy against Germany at Versailles in 1919.  The tension between the two countries lasted until, after another world war,  Germany was simply destroyed as a single country and France got the territories back.

07 August 2017

Muskrat, risk, and memory #nlpoli

There's a great column in Saturday's Telegram by Pam Frampton that anyone concerned about Muskrat Falls should read.  It's the latest in a string of columns that Pam's been writing about the troubled megadebt project and events in 2013 around the time that the major contractor on the project produced a memorandum about huge risks that needed attention.

In the very first sentence,  Pam mentions a book she's apparently just been reading.  It's called Megaprojects and risk.  It's written by three Scandinavian scientists who studied huge construction projects to try and find out why they tend to go wildly over-budget. They found that the folks behind gigantic projects over-estimate the benefits and underestimate the costs.

Note the date of Pam's column.


24 July 2017

Dunkirk (2017)

Reviewers have been so effusive in their praise for Christopher Nolan's Dunkirk that one suspects that something is very wrong here.  Their words are over the top and cliche.

The New York Times, for example, called it a "tour de force", "a brilliant new film",  and "a characteristically complex and condensed vision of a war in a movie that is insistently humanizing, despite its monumentality."  The Guardian called the film "structurally immaculate" and "a jaw-dropping spectacle in which the picture for the most part stretched beyond [the reviewer's] field of vision, both vertically and horizontally."  Vanity Fair, among others, calls the film Nolan's "most artistic, impressionistic film yet."

But the Vanity Fair reviewer gives us a clue that something is amiss here with his very first sentence. He describes the challenge of trying to find words to describe this film. "It was a dance piece, then a music video, then a poem, then a prayer."

These are bizarre ways to describe a movie about the defeat of Britain and France in early 1940 at the hands of an invading German army. Britain only avoided a catastrophe by a combination of muddling, luck, and improvisation. The story of Dunkirk is a spectacle in its own right. It is spectacular in the wider context of defeat and conquest at the opening phase of the largest war in human history. Thematically, Dunkirk is the antithesis to Normandy:  retreat in defeat versus attack leading to victory. Dunkirk: improvised. Normandy:  meticulously planned. The one is the prelude to the other.  This is a rich mine of a story.

There are lots of ways to describe such an event and indeed lots of ways to present the story.  But dance piece?  Music video? Poem you might buy into but it would be a great insult to Sassoon or Owen to liken their work to Dunkirk's pristine, one-dimensional soldiers, sailors, and pilots.

What becomes plain fairly quickjly in these effusively positive reviews is that the reviewers clearly know very little of the actual events or indeed or war movies as a genre. Go read the New York Times review of the one movie made about Dunkirk before now, the one made in 1958. Now look at the reviews of the 2017 movie. The recent ones seem thin. Insubstantial. Lacking in depth either of knowledge or indeed even of morality.

Even after that brief experience you should now be retching at the idea as war and the events at Dunkirk can be a rendered as a tour de force dance piece or a structurally immaculate music video.

17 July 2017

Traces of the Grossly Impudent Lie #nlpoli

There's a phrase in Pam Frampton's Saturday column on Muskrat Falls.

A bunch of words dropped in easily,  maybe offhandedly.

Nothing that really stands out.

Just a simple fact.

The kind of thing that you might just skip past, unless maybe you'd be writing about this project since before it was a gleam in some old twitchy-shouldered man's eye.

"Now, the project is more than 75 per cent finished, two years behind schedule and 70 per cent over budget."

11 July 2017

Heretics and Believers

Peter Marshall's Heretics and believers:  a history of the English Reformation from Yale University Press (2017) arrived as a belated birthday present on Friday past.  It's proven to be well worth the wait.  

"Heretics and Believers" by Peter Marshall

As the official blurb describes it, "Peter Marshall’s sweeping new history—the first major overview for general readers in a generation—argues that sixteenth-century England was a society neither desperate for nor allergic to change, but one open to ideas of “reform” in various competing guises. King Henry VIII wanted an orderly, uniform Reformation, but his actions opened a Pandora’s Box from which pluralism and diversity flowed and rooted themselves in English life.

With sensitivity to individual experience as well as masterfully synthesizing historical and institutional developments, Marshall frames the perceptions and actions of people great and small, from monarchs and bishops to ordinary families and ecclesiastics, against a backdrop of profound change that altered the meanings of “religion” itself. This engaging history reveals what was really at stake in the overthrow of Catholic culture and the reshaping of the English Church."


30 June 2017

Canada 150 #nlpoli #cdnpoli

From my paper "Two solitudes",  Dorchester Review, volume 6, number 1, spring/summer 2016:

"Newfoundland and Canada, separate countries for so long, exist as two solitudes within the bosom of a single country more than 65 years after Confederation. They do not understand each other very well. Canadians can be forgiven if they do not know much about Newfoundlanders beyond caricatures in popular media, let alone understand them. But Newfoundlanders do not know themselves. They must grapple daily with the gap between their own history as it was and the history as other Newfoundlanders tell it to them, wrongly, repeatedly. 
These solitudes are not fragments of the past of no consequence in the present. They are not without shape and substance in the world today. People who think of themselves as eternal victims of conspiracies will see conspiracies everywhere and act accordingly. For some Newfoundlanders,  the British bogeyman of 1914 became the Canadian and British bogey of 1949, and the Quebec bogey in 1969 at Churchill Falls, or the bogey of Ottawa and offshore resources in 2004. A century after July 1, 1916, the result of these two solitudes is a relationship between Newfoundland and the rest of Canada that may well be more distant than it ever was, but certainly is needlessly so."
For the full thing, buy the single issue or subscribe.

You'll get some thoughtful and thought-provoking stuff from writers across Canada.


23 May 2017

The Newfie Thing #nlpoli

Facebook has become hugely popular in Newfoundland and Labrador and, not surprisingly, some creative and enterprising fellow came up with a running joke - these days called a meme - featuring a fellow in a sou'wester.

You will find it called "newfie word of the day". The text that goes with the picture involves a joke based on some mispronunciation of a standard English word or phrase and out of that comes some sort of joke.

The one above is an example.  There are dozens more.  The thing is quite popular as you can tell by searching the Internet for "newfie word of the day".

Memorial University's political scientist slash sociologist Jamie Baker has discovered that the guy in the picture isn't a Newfoundlander.  He's actually Czech.  The picture came from a post on a Northern Peninsula blog by cabinet minister Christopher Mitchelmore.  It's about a Screech-in ceremony in the Czech republic that Mitchelmore ran during a visit there on one of his numerous globe-trotting ventures.

Baker posted the link on Facebook and asked folks to give them their thoughts. Feel free to do so by sending him an email:  jbaker at mun dot ca.  Baker's also written about about nationalism and racism, if this interests you. He got some notoriety last week not for this "newfie" meme story but for one on a paper he wrote about young people's attitudes to the word "newfie." He interviewed 30 university students and found that among the young people, the word is either an insult or no big thing.  You can find a CBC story about it, one from Radio Canada, and one from NTV.