Questions about the Maritime Link

On Sept. 13, The Telegram reported Nalcor vice-president Gilbert Bennett as saying the following about Nalcor, Emera and the Maritime Link: “We’ve shared a few ideas, but ultimately, the objective is theirs. They have to solve this condition, and they can do it themselves without us, or we can find if there’s a way we can participate with that, we’ll do that. Negotiations is a strong word. We have an ongoing dialogue.”

Section 5 (a) of the Dec. 17, 2012 sanction agreement requires that where, as has happened, “the N.S. regulatory application is approved with other conditions … then Nalcor and Emera will attempt to reach a mutually satisfactory resolution of such issues with the goal of ensuring that the Maritime Link is built. For greater clarity, each party shall be free to make its own decision as to the resolution of such issues in its sole and absolute discretion.”

Under Section 5 (b), “Either Nalcor or Emera may give the other 45 days’ notice of conclusion of the discussions under Section 5 (a),” following which sections 5(b)(i)-(iii) require Nalcor and Emera to “continue to work together … to develop the necessary financial, contractual and regulatory arrangements required to facilitate the development and construction of the New Maritime Link.”

Section 5 (b) (iii) requires that such negotiations for a “new Maritime Link” must continue into early 2018 (2018 is not a typo).

No going solo

It is noteworthy that the Dec. 17, 2012 sanction agreement removed Nalcor’s July 31, 2012 contractual right to, on its own, build the Maritime Link if Emera chooses not to do so.

From a lawyer’s perspective, the Maritime Link is currently in the Nalcor/Emera “discussions under Section 5 (a)” phase.

Pertinent questions are: how long do Nalcor and Emera anticipate this phase will continue?

When and under what circumstances would Nalcor be forced to, under Section 5 (b), give Emera “Notice of conclusion of the discussions under Section 5 (a)”?

When and under what circumstances would Emera be forced to, under Section 5 (b), give Nalcor “Notice of conclusion of the discussions under Section 5 (a)”?

Will the Decision Gate 3 numbers for the Maritime Link be available by Oct. 1, 2013, the current deadline?

Bern Coffey St. John’s