Monday, 11 March 2019

BEWARE FEDERAL SHAPESHIFTING ON ATLANTIC ACCORD, WARNS CABOT MARTIN

Guest Post by Cabot Martin
Hooray for Uncle Gnarley for he has saved me from the sloth of procrastination!

Nearly a week had passed since former Premier Peckford’s letter appeared in the Saturday March 2nd edition of the St. John’s Telegram and I was still mulling over an appropriate way to support his views; maybe phone Paddy; maybe a letter to the Telegram.

So when Uncle Gnarley phoned last Thursday to ask me to write something on the Atlantic Accord mess, it didn’t take any convincing at all.

So to A. Brian’s excellent letter.

I was most struck by his comment on a possible change in the Accord that would see us being demoted from “principal beneficiary” to ”primary beneficiary” – a big change in a key, supposedly entrenched right.


In a document like the Atlantic Accord, the specific words mean a lot – federal shape shifting is a threat. Ask any inshore fisherman who wonders what happened to our “adjacency” rights to our fish stocks which over the last few years have gone up in smoke.

Peckford asked the key question: “Does anyone realize how difficult it was to get this wording [principal beneficiary]?”

That has to be A. Brian’s most restrained statement ever.


Because it wasn’t just “difficult”, it was like crawling over broken glass; went on unrelentingly for 13 long years.

Throughout the 1970’s and to 1985, an intense fight with Ottawa for our offshore rights was the central issue in Newfoundland politics.

It’s a long story but a number of things immediately spring from memory:

-     In early days, of building a top notch petroleum geoscience/engineering team in a newly formed Petroleum Directorate led by a Dublin educated Trinidadian Steve Millan (sadly since passed) supported by Dutch petroleum economics/computer modeling wiz Dr Pedro Van Meurs and staffed by international oil company experienced Newfoundlanders, some of the first of a wave that you can now bump into in virtually every big oil or gas play globally.

-     of building a diverse legal team of Law experts from leading Universities: from Cambridge (Professor Geoffery Marston); Edinburgh (Professor William Gilmore) and from Oxford (Professor Daniel O’Connell) with help from Australian Michael Crommelin then comparing the Newfoundland and Australian offshore situations at UBC Law later Law Dean at Melbourne University.

-     the constant fight with the oil companies over their hiring policies to gain employment access for Newfoundlanders and a preference for Newfoundland supplied goods and services   

-     the unrelenting “make a deal; make a deal; make a deal now ” cries from the St John’s business community;

-     those long days in 1977/78 after the French led Labrador Group cancelled their multi-rig offshore Labrador drilling program rather than apply for a provincial permit under the 1977 Newfoundland Offshore Petroleum Regulations with its strong Newfoundland first provisions. The oil company boycott ended in 1978;

-     the March 1, 1982 Ottawa / Nova Scotia offshore deal that broke up a shaky Newfoundland/Nova Scotia common front by promising Nova Scotia that if they signed separately now they would still get any additional rights and benefits that Newfoundland might obtain by hanging on for a better deal – we did do better so they picked up the benefits; 

-     that black day in March 1984 when the Supreme Court of Canada ruled against Newfoundland’s legal case claiming ownership of the oil & gas on our continental shelf;

-     that great day around 1987 when, in face of the Hibernia Consortium's position that a Hibernia GBS was simply not feasible, we held an international Hibernia Platform Conference at the Knights of Columbus on St. Clare Avenue in St. John's, when the oil companies and some of the world's top offshore engineering companies were dragooned into presenting their Hibernia platform ideas in public; only the French company Doris was brave enough to say it could be done;

The fight was mostly with Trudeau the Elder whose arrogant, cold, calculated centralism, executed by Jean Chr├ętien as Federal Minister of Natural Resources, made our blood boil. Against them, we had a solid alliance with Alberta and on points of principal, strong support from Quebec in spite of our, at the same time, beating them over the head on the Upper Churchill.

There was a false dawn in the election of Prime Minister Joe Clarke in 1979 (a very decent man) whose short lived Government would probably have delivered on his promise of full offshore provincial ownership had it survived. His Alberta roots included strong memories of the 25 year long fight (from 1905 to 1930) needed to wrestle the ownership of Alberta’s onland oil & gas rights from Ottawa.

But it took the 1984 federal electoral victory and unique perspective of Prime Minister Brian Mulroney, an Irish Quebecois, to give us the Accord  – less than what we were looking for but realistically as good a deal as we should have expected given a defeat in court and the many political and commercial pressures against us and the attitude of 90% of the Ottawa people we were dealing with.

Indeed, our Accord offshore rights are stronger than those achieved by any other constituent state or province in any other federation worldwide including the United States and Australia.

Every word of the Accord was contested, with each side aware of its critical importance. Accordingly, if Ottawa wants an Accord change they must first demonstrate how that change is an improvement for Newfoundland and not a derogation of our present rights. We cannot afford to go backwards.

And under Section 60 of the Accord, any change requires our consent. Section 60 reads:

60. Except by mutual consent, neither government will introduce amendments to the legislation or regulations implementing the Accord.

There was, of course, much celebration the day the Atlantic Accord was signed in St John’s on February 11, 1985.

I brought along a book on Arabian oil negotiations to one such event and all from the PM and Premier down signed with many good wishes as if we had all graduated together from High School.

As a measure of the previous tension, a key federal negotiator started off his contribution by writing “To Cabot who is no traitor …”

Yeah, things had been kind of tense.

I leave it to others to document the ground-breaking, spectacular, revolutionary, epoch making political, financial, technical and employment benefits achieved by virtue of the Atlantic Accord.

And to yet others to chronicle how successive Provincial governments have failed to properly use its powers under the Accord to gain yet more benefits especially with respect to natural gas development. 

Or whether Ottawa has lived up to Section 49 of the Accord :

“49. The Government of Canada shall establish in the province, where possible, regional offices with appropriate levels of decision-making for all departments directly involved in activities relating to the offshore area.”

Full, as they say these days, disclosure.

From 1972 to 1979, I was Legal Adviser to the Minister of Mines and Energy responsible for offshore oil & gas matters.

And served as Senior Policy Adviser to Premier Peckford from 1979 to 1985 until the signing of the Atlantic Accord in February 1985;

Worked for both the Peckford and Wells Administrations as the sole external member on the Newfoundland Hibernia Negotiating Team from 1985 to the signing of the 1990 Hibernia Field Development Agreement with the Hibernia Consortium.

Anyway, here we are again – back in the Atlantic Accord trenches -– with Liberals in Ottawa (the PM is son of arch centralist Pierre T no less) and Liberals in St John’s (unable it seems to shake that old “We are only small/Ottawa knows best” attitude).

A Province and a people beaten down by Tory Muskrat greed and hubris (effectively enabled by the Liberals and NDP).

Must we now resort to that old crutch of a handout in exchange for rights?

After all, Ottawa and Emera, Banking and SNC Lavalin friends have had a big hand in this Muskrat fiasco.

Surely there must be a better way.

We have been through a lot over the last 400 years or so

– we’ve successfully adapted to and built a strong sense of identity and viable society in a pretty stormy rocky rugged wintry piece of territory; we love it

– and by 1932 had achieved the status of an independent Self Governing British Dominion equal in legal status to that of Canada, Australia, New Zealand, The Union of South Africa and the Irish Free State

-  this, in spite of all the odds, given England’s pernicious policies towards us stretching back to the 17th century (not to mention France’s persistent attempts to burn us out). 

All together the pedigree of an underdog.

Be proud of it.

Back in 1974, I spoke at a Law and Policy Conference on Energy at the University of Ottawa. An expanded version of my talk was published in the University’s “Ottawa Law Review” as “Newfoundland’s Case on Offshore Minerals: A Brief Outline”.

This “Case” covered not just the legal arguments but also the economic, environmental, social and moral “case”. Still makes interesting reading.

Because the offshore is still very complex, very international, technically dynamic and involves lots of money. Money that, as it turns out, attracts all sorts of flies and can be easily squandered by our leaders.

It’s a tough game and we had to be tough; and now must be tough again.

Mostly a matter of focus and tenacity and keeping a keen eye on both the oil companies and Ottawa’s politicians and bureaucrats. The power of corrupt, or just plain dominating, corporations is always focused on both.

So I ask that age old question that every generation seems to ask in its waning days

- Does the next generation have the fire in its belly and the focus to beat off this newest attack on our short and long term well-being; to our continued development as a distinct progressive society?

Having since seen nothing but reinforcing evidence, I can only repeat part of the conclusion in my Ottawa Law Review article:

“If the values of economic and social justice and cultural diversity that are inherent in Newfoundland’s claim are overlooked in favour of a centralized and inflexible federal management regime, is it not evident that, in the long run, Canada will be the poorer? 
“Note 1"

Ditto, Ditto for the Fisheries.

Note 1: Newfoundland’s Case on Offshore Minerals: A Brief Outline – Cabot Martin, Ottawa Law Review Vol 7 No 1 Winter 1975 pp 34 to 61 at page 61.