Muskrat Falls — legislation, loopholes, legacy

When Crown corporation Nalcor was formed in 2007, the Energy Corporation Act (ECA) was rolled out to enable its existence. Then natural resources minister Kathy Dunderdale hailed it as “a balance between allowing this company to operate in the marketplace and at the same time have high accountability to the people of the province.”

Danny Williams, premier at the time, assured the media the restrictions the ECA placed on information flow were “very, very narrow.”

And, as recently as 2014, in its presentation to the committee reviewing the Access to Information and Protection of Privacy Act (ATIPPA), Nalcor was insisting that the ECA was primarily intended to protect proprietary information and keep it competitive in its dealings with large multinational oil and gas companies.

Nalcor said then, it tended to flex the considerable muscle of the ECA to override the jurisdiction of ATIPPA only when “the public interest in withholding information outweighs the public interest in disclosure.”

Yet today, Nalcor is refusing to divulge how much it is paying the contingent of embedded contractors working on the Muskrat Falls project, a matter that is surely in the public interest.

That’s despite Dunderdale’s protestations in 2007 that full control of Nalcor would remain with the provincial government.

Information and privacy commissioner Donovan Molloy, in his Dec. 5 report acknowledging that the powers of the ECA do, indeed, trump those of ATIPPA in this case, acknowledged that the original rationale for the ECA was to ensure Nalcor has “the ability to attract and do business with multinational corporations who might not engage in mega-projects if disclosure of their commercially sensitive information was not restricted.”

Still, the legislation is being used to deprive the province’s citizenry of the details of how their money is being spent, something Molloy seems to suggest they have a right to know.

“The records in question can contribute to a more accurate picture as to how Nalcor is managing this project,” he said of Muskrat Falls. “It is difficult to conceive of another instance where the public interest could more conceivably require exposure of the activities of a public body to public scrutiny.”

This week, Premier Dwight Ball said he’d bring in legislation to amend the ECA, possibly next spring, to make that kind of information publicly available. He called the ECA “too restrictive in the beginning.”

Molloy, meanwhile, calls Nalcor’s right to refuse to provide information about pay rates the “unintended consequences” of the legislation.

I think he’s being generous.

Are the powers being exerted “unintended consequences” of legislation meant to protect competitive advantage in business? Or were they deliberately built into the ECA in order to keep prying public eyes from scrutinizing the spending and hiring practices of the corporation and the government that created it as Muskrat Falls kicked into high gear?

Perhaps the public inquiry can ferret that information out.

In their book “Megaprojects and Risk,” authors Bent Flyvbjerg, Nils Bruzelius and Werner Rothengatter make an important point: “Government should not see its primary role as that of project promoter, but should, instead, keep the project, and involved actors, at arm’s length in order to critically assess, at all stages, whether the project meets public interest objectives and requirements, and complies with laws and regulations, for instance regarding environment, safety and economy.”

The Progressive Conservative government that conceived of Muskrat Falls was without doubt its most fervent promoter.

Heck, it was so smitten with its Frankenproject and thoughts of the enduring political legacy it might create, it couldn’t or wouldn’t acknowledge the shaky ground it rested on.

As “Megaprojects and Risk” states: “(The) interests and power relations involved in megaprojects are typically very strong, which is easy to understand given the enormous sums of money at stake, the many jobs, the environmental impacts, the national prestige, and so on. … Power play, instead of commitment to deliberative ideals, is often what characterizes megaproject development.”

Well, Muskrat Falls has already given us a national reputation, if not quite national prestige.

We can boast we’re home to per capita, the biggest boondoggle in the country.