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Thursday 23 November 2017


Guest Post by Cabot Martin
WHY WORDS REALLY MATTER – The need to amend the Muskrat Falls Inquiry Terms of Reference
Way back in the 1980’s when I was hanging out in the Premier’s Office on the 8th floor of the Confederation Building as Senior Policy Advisor to the Premier, I noted that there was one group that everyone respected – the Legislative Drafters.

As politicians with policy to implement, the Cabinet (with the help of the Cabinet Secretariat) would draft, debate, amend and finalize what they thought the proposed new Act or Regulation should do and contain.

As a next step, the measure was put into the hands of the Legislative Drafters, as specialized a group of legally trained professionals as you will find.

Mr. Justice Richard LeBlanc
They were to work out the precise wording that would express Cabinet’s wishes in terms required by any governing Acts including the all-embracing Interpretation Act.

This latter Act set out basic rules that determine how the Courts would interpret the Act, Regulation or Order-in-Council in question.

The cardinal rule, as I remember it, was that all such instruments are to be strictly interpreted as to their scope and intent.

Once the legislative drafters were finished, the polished document would once again go to Cabinet and be approved and promulgated as an Order-in-Council – every word and comma the genuine law of the land.

All this is important stuff because, as matters presently stand, Judge LeBlanc may well find himself boxed-in amidst cries from some lawyers that “Judge you can’t go there. Look at the limitations of the wording of the Order-in-Council”.

The Rules for the Judicial Inquiry into Muskrat Falls are set out in Order-in-Council O.C.2017-339 which was passed pursuant to the Public Inquiries Act.  

Various politicians have said in answer to public concerns about the wording of the Order in Council --  Oh that’s up to Judge LeBlanc – he can decide to do that ; Oh that one too is up to Judge LeBlanc – he can decide to do that as well.

Trouble is Cabinet, let alone the Legislature, has not made Judge LeBlanc some sort of judicial Generalissimo with God-like powers. He too, and he especially, is bound by the strict requirements of the Legislature’s Acts and past judicial decisions.

He simply cannot do whatever he likes.

So, with that in mind, here, in general terms, is my initial take on the deficiencies in the Muskrat Falls Inquiry Order in Council:

(1) Judge LeBlanc Needs to be able to Go Back Further in Time Than Presently Allowed

To start with, the Government needs to deal with one of the biggest problems.

Section 4  by referring exclusively to the actions of “Nalcor” restricts the period which Judge LeBlanc is entitled to look at to that after Nalcor was created; i.e. after Nalcor was formed by an Act of the Legislature on June 14,2007.

Trouble is there is every reason to believe that the crux of the Muskrat problem, the genesis of the dilemma we find ourselves in, took place before 2007.

For instance, the Order in Council as written would exclude Judge LeBlanc from examining the documents and discussions surrounding the initial SNC Lavalin Feasibility and Financial Plan study commissioned by the Province in 2006 or any of the discussions or arrangements that flowed from it or were connected with it. 

(2) The North Spur issue must be included within the specific ambit of the Inquiry

The words North Spur are not uttered anywhere in the Order in Council. Not surprisingly, and without need to expound on the matter, I feel that should change.  

(3) The Order in Council supports the Nalcor position that the public’s right to know is not superior to Nalcor’s right to keep “Commercial Considerations” secret

No tool has served Nalcor better to the detriment of the public interest than the “commercially sensitive” clause that was written into their founding act in 2007.

It has been used to deny access to critical information not only to the public but also just recently to the Premier himself when he went looking for something as simple as who are all these private contractors you have on the payroll?

Moreover, under the 2007 Act, the Nalcor Chief Executive Officer (CEO) - once Ed Martin and now Stan Marshall - has the unfettered and unchallengeable right (subject only to an amendment of the Act by the House of Assembly) to declare any matter to be “commercially sensitive” and thus beyond the reach of any governmental demand let alone an ATTIPA request by a private citizen.

To see the Order in Council instructing Judge LeBlanc to be guided by “ the need to balance commercial considerations and public accountability and transparency” (Sub-section 4(d)) was truly jarring given how we got here.

(4) Limitation on Inquiry with respect to recommend further investigations is too restrictive

The Province has engaged Judge LeBlanc to do a job of herculean proportions; let’s hope he has the wisdom to surround himself with the best and brightest legal and technical staff.

What we can be confident about is that at the end of the process, he and his team will know more about what went on regarding Muskrat than anybody else. And their expertise will be literally irreplaceable

While the present language in Section 7 of the Order in Council has been used before (for instance in the Dunphy and Cameron Inquiries Orders in Council), this case seems totally different.  

To restrict the Muskrat Falls process as to further civil and criminal investigations (unless required by law) is to handcuff this society as it tries to find a way forward.

No society can bounce back and grow with a big question like “Was Justice Done on Muskrat?” hanging over its head.

We need closure and we need it fast.

But no, Judge LeBlanc should not be asked to recommend that criminal charges be laid against a specific X, Y or Z or that a specific X,Y or Z be sued in a civil action.

But he can properly be asked to recommend to the Attorney General, if he feels it desirable, that specific incidents, decisions, contracts or transactions related to Muskrat Falls be separately investigated by the AG as to whether civil actions or criminal investigations should be initiated before his Final Report is complete – as much as 2 years from now.

As with my other concerns, I have tried below to come up with some compromise language in that regard. 

(5) Need for Judge LeBlanc to have access to all necessary expertise

Notwithstanding Judge LeBlanc’s powers under The Public Inquires Act to put together a team to assist him, Cabinet has included wording in the Order in Council to make it clearer that Cabinet considers  that the broad nature of the inquiry will require specific types of expertise.

Presently the relevant section, Section 8, reads:

8. The commission of inquiry may engage the services of persons having special expertise or knowledge including those with financial, engineering and construction expertise.

This, with respect, is insufficient.

For instance, in spite of the critical nature of the North Spur problem, there is no specific mention of geotechnical or Quick Clay expertise; I have included below a specific amendment in that regard.

The same can be said for the term “project management” which as a discipline is critical to proper project execution and to unravelling what did and should have gone on.

I say this despite the fact that in the case of Muskrat Falls, the term “project manager” seems to have been used very loosely with regard to individual employment contracts – this is an issue the Premier is very familiar with.

Finally, it is apparent that Cabinet finds the words “forensic audit” and “forensic auditor” distasteful, all the while saying - Oh yes Judge LeBlanc can do one if he wants.

Not good enough.

The tools of a forensic auditor are formidable – ask Donald Trump with Mueller’s team of lawyers and forensic auditors closing in on him.

Forensic auditors are as far as you can get from “pencil pushers” overwhelmed by detail – they get to the crux of the matter fast.

Only the most partisan will not allow for the possibility that significant commercial crime has taken place with respect to Muskrat Falls.

Judge LeBlanc must be given specific powers and full rein to engage, if he feels it desirable, the sort of team that was recently put together by Madame Justice Charbonneau in the case of her inquiry into corruption in the Quebec construction industry.

These 5 suggestions would take changes to 5 sections or subsections of the Order in Council.

But these 5 changes would help ensure a much more productive inquiry.

How much change in wording would be needed to cover those 5 points?

Good question!

So I’ll try something I would not dare try back when I was on the 8th floor.  I will propose some “precise” language by way of amendment to the 5 relevant clauses.

I am sure the Legislative Drafters can improve this language further if given positive political direction.

For the convenience of readers here is a link to the MuskratFalls Order in Council as presently constituted.

Don’t be intimidated – it is really pretty short and Legislative Drafters are trained to use plain language and make things clear – within the direction given to them by Cabinet.

Here I go.

The proposed changes in wording are in red.  

1.  Section 4 should be amended at the beginning by the addition of an entirely new subsection (aa) to read

4. The commission of inquiry shall inquire into

(aa) All discussions and decisions by the Premier, Ministers or provincial officials with any party in the period 2003 to 2007 prior to the establishment of Nalcor, relating to the development of the Muskrat Falls project including all feasibility, economic, banking, corporate structure, marketing and financing studies and in particular the SNC Lavalin Muskrat Falls Feasibility and Financial Plan study dated 2006.  

2.  Section 4 should be further amended by the addition at the end of an entirely new subsection (d) to read

     4(d) Whether Nalcor and its contractors have acted on the basis of adequate technical studies and prudently with respect to the geotechnical and engineering investigation of stability issues at the North Spur and in the preparation of Dam Safety Analysis and Evacuation Plans for all components of the reservoir containment system. 

3. Subsection (d) of Section 5 should be amended to read

(d) the need to ensure that “commercial considerations” do not override basic public accountability and transparency in carrying out a large-scale publicly-funded project; and

4. Section 7 should be amended to read

       7. The commission of inquiry shall not express any conclusion or recommendation regarding the civil or criminal responsibility of any person or organization except that the Commission of Inquiry may recommend that the Attorney General focus on specific incidents, agreements, decisions, contracts or transactions related to the Muskrat Falls for further investigation by the Attorney General as to whether civil actions or criminal investigations should be initiated and may do so in any Final or Interim Report.

5. Section 8 should be amended to read

             8. The commission of inquiry may engage the services of persons having special expertise or knowledge including those with financial, engineering, geotechnical expertise (including Quick Clay expertise), construction project management and execution expertise as well as persons experienced in forensic auditing and with all relevant areas of construction and commercial crime.

Some may say, as they have about most aspects of Muskrat Falls – It’s too late for any change now.

Nonsense – it is never too late to do the right thing especially when there is so much on the line.

And any Order-in-Council that Cabinet has passed, Cabinet can also amend – I am sure Judge LeBlanc will welcome the added mandate - no one likes to be boxed in.

I am encouraged in this respect by Section 3 Subsection (3) of the Public Inquiries Act under which the Muskrat Falls Inquiry Order in Council was issued.

Subsection (3) reads as follows:

(3)      Where it is in the public interest, the Lieutenant-Governor in Council may by order revise the terms of reference for the inquiry and revise the dates set for the termination of the inquiry and delivery of the commission's report.

In summary, we have an inquiry and Judge LeBlanc has been chosen, well and good - but let’s give him the appropriate mandate.

The above suggestions and comments are meant to assist him in his task.

As are my sincere hopes for the success of his Inquiry.

Much rides on it.