Each decision taken by the Commission of Inquiry into the
Muskrat Falls Project is understandably scrutinized as watchers assess whether
the Commission is capable enough to undertake the enormous task for which it
has signed on, and whether the Commission will be transparent enough to imbue
public confidence in its mandate, procedures and processes. Arguably, perhaps,
the Commission is already making decisions whose side-effect is enabling this
result. The Premier could have given the
Inquiry a head start had he submitted a draft Terms of Reference (TOR) to the public
and sought input. That job fell to Judge LeBlanc.
The Commissioner acknowledged that the TOR were “fixed” but
that, until February 15th, he would accept written opinions with respect to how
they might be interpreted.
The announcement by the Commission on Monday that the firm of Grant
Thornton was given a contract to perform a Forensic Audit is likely a good news
story.
Why only likely?
Since January 2017 when this Blog quoted the “Anonymous
Engineer” on allegations of falsification of the project estimates, the
drumbeat in support of a review of the data, decision-making processes, and
assumptions on which sanction was awarded, has grown louder and louder. Obviously,
the Commission had seen the necessity of a Forensic Audit from the ‘get-go’; it
must have issued a call to qualified parties within days of its formation together
with Terms of Reference based upon which, ostensibly, all the auditing firms
competed.
So far, at least, the public has seen only a couple of
sentences describing exactly what the forensic auditor will examine. We have
not seen the full TOR and we need to.
Indeed, the timing of the announcement of the Forensic Audit
may have had a linkage with the approval by the Lieutenant Governor-in-Counsel
(the Cabinet) of an exemption for the Commission of Inquiry under Section 4 of
the Access to Information and Personal Privacy Act (ATIPPA). The announcement
that such an exemption was sought — and
granted — was made public late last week. Was there a linkage? We don't know.
But we ought to.
Under the Act governing access to information, an exemption
can be granted when the House of Assembly is not sitting, provided the
Lieutenant Governor-in-Council (Cabinet) also has the approval of the House of Assembly Management Committee. It is noteworthy that the exemption's effectiveness
does not extend beyond the next sitting of the House of Assembly.
The request did not get a pass in some quarters. Former
Premier Brian Peckford, for example, wrote The Telegram to express indignation that
the House was not called back into Session, allowing Members to vote on the
Judge’s request. As one who spends more than the usual amount of time extolling
the virtues of transparency in both government and its regulatory and oversight
institutions, the suggestion ought to have triggered almost knee-jerk support from
this Blog. Not this time. But the position takes nothing away from Peckford who has been a vigorous opponent of the project and an advocate for a forensic audit of the project.
There are fundamentally good reasons why the Commission ought
to be exempted under ATIPPA. While I agree that exemptions should be hard to
get, I had a different preoccupation in this case.
The CEO of Nalcor has the right, under ATIPPA, to deny release
of information he considers commercially sensitive. It would be unacceptable if
the CEO of Nalcor — the entity under investigation — retained this right and the Commissioner enjoyed a similar
exemption, too. Fortunately, that is not
the case. Under the Energy Corporation Act, the Nalcor CEO is required to
release all information in the possession of Nalcor to the Commissioner; see
the excerpt below from Clause 12 (3):
That was one consideration.
Another is that the Inquiry uses procedures similar to those employed
in a Trial in carrying out aspects of its investigation.
 |
| Judge Richard LeBlanc |
Judge LeBlanc outlined his reasons for seeking the exemption
in a letter to the Speaker of the House of Assembly. He noted that the Royal
Newfoundland Constabulary and records of investigations performed by the
“statutory offices”, such as the Child and Youth Advocate and the Chief
Electoral Officer, are also exempt. He argued that the absence of the exemption
will affect the Commission’s ability to collect evidence and deal with
“privilege claims” — without which some people may not testify. A third reason
offered by the Judge was one of cost; the Commission would be required to
employ more staff to handle the inquiries.
I believe the first two claims are reasonable and that,
likely, the exemption is important to making the Inquiry function effectively.
The third reason — cost — seems inappropriate given the circumstance. ATIPPA
management would have required an additional four people, not forty or four
hundred.
That said, the February 15 deadline is fast approaching for
Submissions regarding the Inquiry Terms of Reference, following which the
Commissioner will make a statement giving the last word on the issue. The
Commissioner's view of his mandate will dictate whether the public should ask
the Premier to revisit the Inquiry's TOR.
If the Commission releases the Terms of Reference governing
the Forensic Auditor, too, the public will be able to assess both documents and
make a determination if this long-sought Inquiry is for real.
Until then, uncertainty will provide plenty of fuel to this
Blogger and to all the sceptics.