Bill 19 – a step in the right direction but does not go far enough

Last week in the House of Assembly, I was pleased to support Bill 19 – “An Act to Amend the Energy Corporation Act.”

While it is government that brought this bill forward, I believe much of the credit for this decision must go to The Telegram’s former legislative reporter, James Mcleod. After all it was James, of course, who broke a story on Sept. 8, 2017 entitled “Embedded contractors make up about 90 per cent of Muskrat Falls management team.”

In this article, he outlined the fact that Nalcor had 498 of what he termed, “embedded contractors,” working on the Muskrat Falls project, billing anywhere from $90 -$250 per hour and, in some cases, even higher.

He went on further to state that in 2015 one individual invoiced Nalcor for 3,167 hours of work which equates to 8.6 hours per day, every single day of the year, including weekends and holidays.

Some of these contractors, according to the story, “had the authority to sign invoices and authorize payments to other Nalcor contractors.”

Upon being made aware of this information, supposedly for the first time, our premier indicated that it “didn’t pass his smell test” and committed to have the information on embedded contractors publicly released.

Of course, upon consultation with the CEO of Nalcor, he later advised that this release of information would not be possible due to restrictions contained within the Energy Corporation Act.

This is what Bill 19 was created to do, to allow Nalcor to publicly release information related to the name of and remuneration to any contractor doing work for Nalcor. There are those who would argue that Nalcor already had the power to release the aforementioned information but chose not to under “their interpretation, but that’s another story.

Bottom line though, is that this is definitely a positive move and at the very least adds clarity and allows for the release of this information. I certainly will give full credit to our premier and our minister of Natural Resources for making this happen.

With that said, does legislation go far enough? Absolutely not.

As things currently stand, with the exception of the names and remuneration of contractors, nothing else has changed as far as openness and transparency at Nalcor goes.

Unlike core government departments this which are covered under the Access to Information and Protection of Privacy Act (ATIPPA), all requests for any other information can still be denied outright with no explanation or justification required and no mechanism for appeal.

Arguably, much of the information that will be brought to light at the Muskrat Falls Inquiry should have been provided to the public long before now.

For example, shouldn’t we have the right to know what precipitated the decision to ignore maintenance at Holyrood which eventually led to Dark NL as well as the justification for the issuance of corporate bonuses following this event?

What about the infamous dome and rationale around how the contract for the pouring of concrete at the Muskrat powerhouse was let? And of course let’s not forget SNC Lavalin’s scathing report on the risks associated to the North Spur that Nalcor allegedly refused to acknowledge.

There have been so many questions and very little in the way of answers.

Simply not good enough. Is there a remedy to this unacceptable situation? Well, according to the privacy commissioner in a correspondence of Feb. 18 to the Department of Justice: “True transparency in terms of Nalcor and access to information could be achieved by amending the Bill (ATIPPA) to delete paragraph (e) section 5.4 of the Energy Corporation Act from Schedule A to the ATIPPA, 2015.”

So what does that mean? Well, essentially Nalcor is currently exempted from the Access to Information Act and by removing it from Schedule A of ATIPPA (exemptions), Nalcor would indeed be subject to ATIPPA. This would mean that, like core government departments, if a public request for information is denied, Nalcor would be required to provide and explanation as to why and that decision could be appealed to the Privacy Commissioner who would subsequently determine whether Nalcor was correct in denying the information. If in the opinion of the privacy commissioner it was not justified in denying the request, the commissioner would recommend that Nalcor release the information. If Nalcor did not agree with the Privacy Commissioner, it could apply to the court for a declaration that it is not required to comply with the recommendation and a judge would decide on the matter.

This process would still protect things like commercial sensitivity while at same time providing a mechanism for reasonable information requests to be considered and evaluated on their merit by an independent third party. If the principle of protecting commercial sensitivity (particularly for the newly proposed Oil and Gas Corp.) needs to be strengthened or specific exemptions spelled out in legislation, government can make the necessary changes required to achieve this.

We all understand the need to protect commercially sensitive information but there has to be a reasonable balance between commercial sensitivity and the right of Nalcor’s sole shareholder, the people of Newfoundland and Labrador, to know what is happening at their company. Arguably there is a current imbalance in this regard and while Bill 19 is a step in the right direction, government must do more.

I call upon our premier to take the required action to provide more openness, transparency and accountability at Nalcor by initiating further amendments to the ATIPPA and/or the Energy Corporation Act.

Paul Lane Independent MHA,

District of Mount Pearl - Southlands