Monday, 23 November 2020


Guest Post by Ron Penney

The following segment is the third of three containing speaking notes from my presentation to the Wessex Society on October 14, 2020. The presentation is available at the Wessex Society of Newfoundland, - Ron Penney

The Democratic Deficit

While the Commissioner declined to get into the broader issues which we urged him to consider he did have a short chapter titled “Dealing with Opposition to the Project” which focused on the reaction of project proponents to the critics and naysayers, or, as my brother Neil, described us - the Muskrateers! 

The Commissioner described the project proponents response to the critics as “at times unbalanced and disproportionate to the commentary.” 

In particular he referenced Mr. Williams characterization of us as “bottom feeders”. 

I’m a great fan of Kevin Tobin’s cartoons and have purchase a number of them. My favorite is the one below.

 The  Commissioner referenced Mr. Williams’s comments about the concerns that Dave Vardy and I had about the management of the project in January of 2012 in which Mr. Williams called those concerns “garbage” and “nonsense”. The Commissioner rightly described those kinds of comments as “unbalanced and disproportionate to the commentary.”

 In his testimony at the Inquiry quoted by the Commissioner, Mr. Williams said of those opposing the project: “You can’t have people out freelancing unanswered, unaccountable, not elected, just coming out and throwing out conjecture and disparaging reputations for no reason at all.”

 This from a man who had just called us “bottom feeders!” 

The Commissioned correctly said that “This kind of extreme and derogatory language does not serve to advance reasoned public debate.” 

Jerome Kennedy accused Dave Vardy of advocating the closure of the Corner Brook mill. This was untrue and was particularly egregious, as Dave chaired the committee which found a new owner of the mill, Kruger. He refused to withdraw those untruthful and hurtful comments at the time but did agree at the hearings that those allegations were inappropriate. 

And even the Clerk of the Executive Council during the Dunderdale administration, Robert Thompson, described us in an email to the Premier as “detractors pursuing narrow and petty agendas.” 

The Commissioner made a number of points about citizen involvement: 

“Private citizens have much to contribute to policy discussions.” 

“Government should at least start from the perspective of recognizing and respecting citizens’ right to criticize their policies and action.” 

“Governments should assess comments solely on their merits rather than on the speaker’s real or imagined affiliations or biases.” 

“Governments should not assume that their critics’ motives are partisan or ill-founded.” 

He then went on to thank those of us “who have spent considerable time and effort speaking about the Project in a spirit of civic duty.” 

For some of us those kinds of ad hominem attacks were relatively easy to withstand but for many, if not most citizens, it is very intimidating, and naturally that was one more reason why others declined to enter into the fray. 

As I pointed out earlier, in our first letter to the editor on Muskrat Falls, Dave Vardy and I urged those who had expressed their concerns to us privately to make those concerns public. None of them did and given what we had to put up with who can really blame them. But had they, it may have made a difference. We will never know. 

The most notable absence was Newfoundland Power and its parent company, Fortis, which is headquartered in St. John’s. Newfoundland Power is a tiny part of its holdings but for most of us it is the retailer of electricity. So when we get our bill for Muskrat Falls it’s won’t come from Nalcor or Hydro, it will come from Newfoundland Power. 

I previously mentioned the reference to the PUB. Dave Vardy and I made a presentation to the PUB but Newfoundland Power didn’t even participate in the Reference, even though we know that the present CEO of Hydro, Stan Marshall, who was then CEO of Fortis, had serious concerns about the project.

Fortis is a very large company with revenues over $8 billion, almost as much as the Province, so they have nothing to fear from the Government, and I think they had a duty to protect their customers. They said nothing and failed to do what they should have done. 

If they had made their private concerns public it may have made a difference, but, again, we will never know.

Ron Penney
This is also true of informed private citizens who expressed their concerns privately but would not enter the fray. 

So the first thing that needs to happen is a change in our culture. Dissent should not only be tolerated it should be welcomed and encouraged. And informed citizens need to be braver. 

We also have a cultural problem. Most people don’t want to rock the boat. We are deferential to authority, which may be a good thing in a pandemic, but is certainly a bad thing in making billion dollar decisions. 

And those who express private concerns need to have the courage the next time we are faced with such a big public policy issue to state them publicly. 

Why is it that in other jurisdictions like Manitoba and British Columbia, many ex senior officials and retired Hydro CEO’s were publicly critical of similar “boondoggles”? 

It ought not to have been the case that the only former senior public officials to have publicly expressed concerns about the project were Dave Vardy and I. We felt very lonely but we felt we had a civic obligation to make our concerns public and to relentlessly pursue them. I said to Dave Vardy early on that what were doing was the most important thing we had ever done, eclipsing the other highlights in our long careers.

Unfortunately we failed. 

The only former CEO of Hydro to express even private concerns was Vic Young, whose emails to Ed Martin came to light during the inquiry. 

I would like to contrast this with the opposition to the attempt by then Premier Wells to privatize Hydro.

A large and diverse group of citizens, led by the late Cyril Abery, one of the giants of our post Confederation public service, and a past CEO of Hydro, opposed this policy. Hydro was then the jewel of our crown corporations and we felt privatizing it was fundamentally wrong. I and the then Mayor of St. John’s, joined that coalition and we were successful at the time. 

I have now come to realize that our opposition may have been a mistake in hindsight, as a private company would have never undertaken the Muskrat Falls project! 

The difference was at that time private citizens and even those of us were working in the public sector did not feel intimidated. Even though I was City Manager at the time I, and the Mayor, didn’t feel that the interests of the City would be adversely effected by our dissent. 

I also recall my own experience at the end of the Smallwood era when there was tremendous public dissent and people felt free to participate. In my own case when I was at Memorial in the mid sixties, I was part of that as the first President of the PC club. Prior to that political clubs were banned on campus! The late sixties and early seventies in Newfoundland and Labrador were a time of strong dissent lead in large part by our University. 

Things have certainly changed for the worse. 

Now, one of the big differences between the opposition to propose privatization of Hydro and Muskrat Falls is that we were unsuccessful in creating a large coalition against the project and Muskrat Falls was very popular and had the support of much of the business community. 

The other practical thing that Government can do is to bring in what is called “anti SLAP” legislation. 

SLAP is an acronym for strategic lawsuit against public participation, which are lawsuits intended to end public criticism by forcing dissenters to defend themselves against the threat of legal action. 

We do have litigious people in Newfoundland as I found out. For most people the concern that they may be sued is another disincentive to speaking out. 

Anti SLAPP legislation is in force in Quebec, Ontario and British Columbia. For example, Ontario’s legislation is called the Protection of Public Participation Act and allows defendants to have an action dealt with in a summary manner in an expedient and inexpensive manner.

I have asked government to consider enacting such legislation through a Minister of the Crown but have been ignored as usual! 

Changing the culture, so people feel free to dissent is one thing. The other is to provide a forum for dissent, which is where our university comes in. 

We do have an organization which has in the past provided a forum for informed public debate, drawing on the wide expertise of the University and the wider community. That organization is the Harris Centre. 

Unfortunately the University has in recent years become very skittish about dealing with sensitive public policy issues. 

The University is highly dependent on government, and with a few notable exceptions, faculty members, particularly those who don’t have tenure, stay away from talking about controversial public policy issues. 

This needs to change. The Harris Centre needs to have long term funding, supported by the private sector, to take on a wider public policy role. 

I was initially pleased to see a recent initiative of the Harris Centre called “Forecast NL: Charting a course for our climate, economy and society”, but when I looked at the website, the idea is to create a citizen’s assembly of 45 citizens which, over a period of 18 months will examine those issues. 

I hate to say this, but in 18 months time the hard decisions will have been long been made, so this initiative won’t help. 

One would have thought that the Harris Centre would have immediately started public engagement on the Inquiry Report right after it was released but sadly that hasn’t been the case. 

The only professor who I know of who has been systematically examining the project is from the Business School, who uses the project as a case study and has asked me to be a resource for the presentations on his students case study. 

You would have thought that the Political Science Department, with whom I am affiliated as an Adjunct Professor, would have been all over the report but not a peep from them. 

We will have Dame Moya Greens’ report this winter so any debate needs to happen now. 

The next budget will have to be a tough one. We have avoided making the difficult choices for many years. The combination of billion dollar deficits, the costs of the pandemic and rate mitigation are all coming to the fore next year. And in order to convince the Government of Canada and the people of Canada to give us help, we have to demonstrate that we are doing our part. 

I should also note a group called CARE, which is an acronym for the Collaborative Applied Research in Economics, which is housed in the Memorial Department of Economics. It’s mandate is to to promote applied economic research within province, the Maritimes and Canada. They do some public programming and in particular, had a conference last February on our fiscal situation. But their focus is more narrow than what I envisage. 

We also need to change the way our House of Assembly works, by creating a robust committee system, to examine the big public policy issues and new legislation and provide a forum for private citizens to provide their views on the issues of the day. 

The House of Assembly has established a select committee on democratic reform, which is a good thing, but so far there has been no opportunity for public participation on issues such as election finance reform.