RCMP and PUBLIC PROSECUTOR FINAL STEP IN LONG MUSKRAT JOURNEY

Guest Post by the "Anonymous Engineer"

EDITOR'S NOTE: The author of today's article is the whistleblower, dubbed the "Anonymous Engineer", who first disclosed falsification of the estimates for the Muskrat Falls project in January, 2017. 
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The Muskrat Falls Inquiry had a very interesting beginning, which may have been forgotten by now. When the costs of the project started going off the rails, the public outcry for an inquiry began to get louder and louder.  The timing was about mid 2017. The demand for an inquiry was strongly resisted by the leadership at the time, Premier Ball, Minister Coady, and Stan Marshall the CEO (Chief Executive Officer) of Nalcor. The public pressure for that response was too strong to resist. The leadership capitulated and initiated an Inquiry. Time line about mid 2018.

If anyone believes the Inquiry was welcome and initiated voluntarily, they are mistaken; it was not.

After a huge effort, and working enormously hard for about 11 months, Justice Le Blanc delivered a much-awaited Report in early March, 2020.  What a lethal documentation of deceit, deception and falsification by Nalcor, and incomprehensible incompetence on the part of every Government department that had a role in the project!

Under the Terms of Reference, Justice LeBlanc had no mandate to assign blame or find anyone guilty. As he said many times during the Inquiry, “This is not a trial. This is an Inquiry.” His mandate was to find and report the facts.

The findings in the Report are egregious beyond belief.

The question that will never go away is this: who is responsible and what are the consequences for those who misbehaved?  The public has a right to demand from our leadership that this question is raised and answered. Our elected leaders are duty bound to respond.

Nalcor took full advantage of the incompetence of the Government departments and the Nalcor Board of Directors, who had no idea of what was expected of them. The Commissioner gave the benefit of the doubt to the Government even if, it seems, Premier Dunderdale knew more than she told her Ministers or that certain public servants were less than professional. Knowing how to provide oversight to a complex multi billion dollar project, is the privy of a very few companies in the world.  It would never be found among public servants who have no experience.

As to Dunderdale’s Ministers and successor Premiers, there is ample evidence of naivety and rank ignorance. Justice LeBlanc’s report clearly states that the Nalcor PMT (Project Management Team) thought they knew how to manage the project, but they did not. Hence the result that we now have.

Even the private sector companies who were expected to provided to oversight failed. Both MHI (Manitoba Hydro International) and the IE (Independent Engineer) were both manipulated by Nalcor to the point of being utterly useless and servile. Only EY held their ground.

This question that begs to be asked is this:  How is accountability to be established for decisions required by such a large and complex project? Premier Ball has stated that the Report has been given to the RCMP and the Department of Justice for investigation. Do these departments have the skills to investigate such complex issues? Through no fault of their own, are they, too,  completely in over their heads?  If the Report is any guide as to the ability and competence of Government departments, most likely they will fail.

This process may well require the servicesof an external agency, a  company having experience in performing forensic audits, possessing the management and engineering skills to assess Nalcor’s deceptive practices, its interference in the reports of consultants to obtain a desired outcome, the failure to report up-to-date cost estimates and forecasts,the failure to obtain Board approvals and, otherwise, what appears to have been multiple breaches of trust in relation to the Board and the Government. 

Should the RCMP and the Public Prosecutor determine that they possess the requisite skills, and do not require the services of an external agency, they need to act with a sense of urgency.

If a decision is made not to press charges, then the public needs to be informed of that outcome as well.

Co-Council Barry Learmonth examines former CEO Ed Martin at Muskrat Falls Inquiry

The Report chronicles multiple occasions of misinformation, concealment of information, and falsification of reports to an extent that any layperson might conclude that this travesty did not happen by mistake. Those were deliberate and strategic Executive decisions. Many times, in volumes 1, 2 and 3, the Report states “Nalcor knowingly understated the costs”, or Nalcor misled. The evidence suggests that Nalcor knowingly misled just about every entity it interacted with or withheld information it should have provided.

The public has every right to know why those decisions were made, who made them and whether our system of justice is capable of meting out proportional consequences when those in authority abuse that authority.  Bringing the Province to the doorstep of bankruptcy is no trivial matter; the deceit employed by those who oversaw Muskrat Falls is integral to Newfoundland and Labrador’s dreadful fiscal position.

The extent of the harm that Muskrat Falls has caused was recently reflected in the need for the Bank of Canada to secure bond funding for Newfoundland and Labrador.

There is a public obligation on the part of the legal system to hold those responsible to account.  How it disposes of Judge LeBlanc’s Report will be a historic test of our system of justice, especially our prosecutorial processes. We will discover if white collar crime conducted at the highest level merits attention and if the public trust warrants the protection of the rule of law.

This is the final leg of a long, long journey to get to the bottom of the Muskrat Falls saga. If the justice system fails to pursue the evidence which another legal process has uncovered, we will be even poorer than the squander of $12.7 billion has already confirmed.