Thursday, 1 February 2018


Justice Richard LeBlanc has started the task of getting the Commission of Inquiry into the Muskrat Falls Project underway by allowing for the engagement of the public. Essentially, the Judge is asking for opinions with respect to the interpretation of the Terms of Reference (TOR). That outcome will govern the scope of the Inquiry.

This is an important phase. The Judge is doing what the Premier ought to have done.  But, unlike the Premier, Justice LeBlanc cannot alter or amend the TOR. He is, however, entitled to give them broad interpretation — as long as he does not overstep their parameters (over which he will exercise a Judge’s discretion). 

Anyone who has followed the Muskrat Falls saga will understand that the project’s origins, evolution and catastrophic failure required a complex web of political machinations, deals, contracts and relationships. Those who were poorly suited to the task, who were arrogant, who let ego or greed get the better of them, who were elected and were unwise or assumed a knowledge or a skill they didn’t possess, or who forgot to whom they owed fealty, will now be confronted with a Judge who will independently assess those decisions, their authors (some of them anyway), and the institutions that enabled them.

Section 4 (a) of the TOR allows the Commission to give “consideration… of the options… that informed Nalcor’s decision to recommend… the Muskrat Falls project.” It is a clause that offers wide scope for a great variety of questions to be investigated. 

In time, people will be shocked to the core of their humanity over the project’s financial implications. Regardless of their ability, they will be responsible for re-paying all the money borrowed. The public will want to know if Muskrat’s official designation as the “least cost option” constituted a reasonable assessment, or if it was just the favoured legacy that won over less “sexy” options. They will also want to know what the other viable options would have cost them in comparison. Section 4 (a) (ii) of the TOR will permit the Judge to consider those issues.

Hopefully Judge LeBlanc understands the level of expectation that awaits him two years from now, as Muskrat nears completion and the public comes face to face with the inevitable frightful economic reality.

An important part of his mission will be to arrive at assessments that are comprehensible, complete and unambiguous — showing the train of decision-making and who made those decisions. He will have to be thorough.

Section 4 (b) (v) of the TOR allows for an examination of “any risk assessments, financial or otherwise” which were conducted in respect of the project.  This clause will enable the Judge to assess, for example, whether the fiscal risk to the people of province was ever considered.

Those are just a few examples of issues worthy of investigation. There are many others and the TOR needs to be viewed as comprehensive enough to include all of them. Muskrat is a big, complex project; many aspects were never given a public airing. Some received analysis only on a few Blogs. For all those reasons, Judge LeBlanc needs the fullest public participation in this crucial phase. 


In addition to members of the general public, those who worked on the Muskrat Falls project (in whatever capacity) might consider telling their specific stories to him, too.

Section 5 of the TOR — appropriately — provides for participation by Aboriginal groups. They must be permitted to raise a host of environmental issues which the Joint Environmental Panel raised but Nalcor ignored from the start - including the North Spur and methylmercury. It is by no means obvious how the TOR accommodates consideration of them but Aboriginal groups and the rest of us must put our minds to the task. 

The TOR empowers the Inquiry to consider “the need to provide consumers… with electricity at the lowest possible cost…” which will open up the Inquiry to issues of how high power rates will ultimately rise in order to finance the project upon completion, and the extent to which the rates have been “back-end-loaded”. (Don’t forget that even at $6.2 billion, Nalcor’s solution to “rate shock” was to delay employing the full cost even as it gave assurances of “rate stability”.) I happen to think that people will want to know the cost of “rate mitigation” and how that subsidy will affect public services for all taxpayers. The public should make sure issues of this kind are on the Commission's agenda.

The Inquiry ought to also consider issues of truth and transparency, possible interference with the election of democratic government in 2015, and whether Nalcor funded a deliberate program of misinformation to the public over several years. 

It will need to inform us if project estimates were falsified, as some contend.

We need to know if Nalcor “sold the shop” to EMERA, which seems to be the case, if the Federal Government gave an unwarranted level of control over the project to Nova Scotia by giving that province an effective veto over the Federal Loan Guarantee and project sanction, and why Nalcor and the provincial government ignored the joint federal/provincial environment panel’s refusal to endorse the project. There are many, many other such questions.

Judge Richard LeBlanc has truly accepted a monumental task.

A welcomed opportunity to “assist” the Commission’s work is now on offer. The Commissioner seeks public input into the interpretation of the TOR. I don’t think he expects everyone to be a Queen’s Counsel lawyer for this purpose, though it would be unfortunate if some of them didn’t lend their skills to the task, too.

The guidelines for submissions suggest that they must be in writing, not exceed 20 double-spaced pages, and use an 11-point font at a minimum. They can be emailed to ( or delivered to the Commission’s offices in St. John’s. The deadline is 5 p.m. on February 15. The Link to the Terms of Reference can be found here.

Some people may want to mention just one or two issues which they consider to be the most important. They might also prefer authorship to be “anonymous”. 

As it stands, a submission to the Inquiry is being prepared with input from a small group of ‘veteran’ Muskrat watchers - a very small group.

The Commission needs your participation, too.

If you prefer to remain anonymous with your Submission, I am inviting you to send your suggestions to this Blog at with the assurance that the authors’ names will be kept in the strictest confidence.  I will ensure that they are sent to the Commissioner as part of a “group” submission or as a separate submission, in keeping with the size constraints imposed by the Commission. 

Judge LeBlanc has advised that he will issue a decision on his interpretation of the TOR subsequent to the February 15 deadline for submissions.

The guidelines which he announces and the scope of investigation that they afford will serve as the first test of whether the key issues will be held up to the light. 

We will also learn if the drafting of the TOR was too limited — that is to say, if the Judge’s hands were tied by the government.

But… one step at a time!