Let’s face it: the Quebec Court was never expected to diminish the powers vested in Quebec Hydro under the 1969 Upper Churchill contract. Sober watchers knew that Nalcor had thrown caution to the winds in its bid for Muskrat sanction long before Hydro Quebec acted. Hubris, compounded by hapless government oversight, created the conditions for the Nalcor leadership to ignore the impact of a total judicial loss in a Quebec-centric Court.
Former Nalcor CEO Ed Martin and his sidekick, V-P Gilbert Bennett, had waived off all warnings that the sanction of the mega project ought to be delayed at least until judicial clarity had been obtained via a declaratory judgement. After all, the case was inseparable from the Water Management Agreement (WMA). Without the WMA Muskrat, in spite of its enormous cost, would become a much diminished facility.
The twin engine Otter flew inexorably above the trademark silver grey Labrador clouds obscuring the landscape below. Not nearly so opaque was the effect of the Court Decision just rendered. There were no caveats in the Corporation’s sterile press statement. It was clear the Court had given Nalcor nothing.
Now I was anxious to get it posted, to begin discussion on how the Court’s Decision skewers the fundamentally sound idea of water management – Nalcor having made several unwarranted assumptions. In effect, the Dunderdale/Martin/Bennett trio had simply rolled the dice on a public policy decision with grave financial and other implications.
The length of the Piece will try the patience of the most ardent reader. Still. I suggest it is impossible to understand the impact of an issue if the the only clarity available about what was at stake in the Court challenge is defined by the fools who brought us there. We will talk about the actual Judicial outcome in the coming days.
Perhaps, as you read this Paper you will want to keep asking yourself this question: in a Decision that gave Nalcor access to not one more electron or even a modicum of control over HQ’s right to the scheduling of power from the Upper Churchill, on what basis can Nalcor declare the Court’s Decision unrelated to water management?
You might have thought that at $11.4 billion and counting Muskrat Falls is a hydro project in serious trouble. Now, discount the effect of the Water Management Agreement, too.
Hopefully, this Paper will help clarify some of your questions.
The Quebec Superior Court: Water Management’s Dead End
By Des Sullivan
waved passively as Nalcor blindly pursued Muskrat Falls’ sanction. Likely, confidence in Danny Williams’ legacy
project afforded no room for doubt that the facility will have sufficient water
to run the turbines and produce as promised.
acrimonious history of the 1969 Upper Churchill power Contract, few ever
thought possible Hydro Quebec (HQ) could find its way into the Muskrat
the people of the province that all was not plain sailing with the plan it had
Williams confirmed that the 1100 km. Anglo Saxon route – which ran down to
southern Labrador, across the Strait of Belle Isle eventually joining the
Maritime Link to Nova Scotia – was the one that avoided interference by Quebec?
was never big on details especially if they interfered with his vision. Or, should the word be version?
power capacity is inextricably linked to the Upper Churchill reservoir. How?
Via the water management agreement (WMA), a plan having doubtful legal status.
WMA was approved by the Public Utilities Board (PUB) it failed to receive
essential HQ consent. From the beginning, the plan was subject to rights
awarded in prior agreements including the 1969 Upper Churchill Contract, the Renewal Agreement, the Guaranteed Winter Availability Contract (GWAC), and the Twin
Falls Agreement. But even those limitations failed to magnify the possibility
Nalcor might not be permitted to implement the plan, at all. A legal challenge, initiated by HQ, will
render it useless if Nalcor’s claims to the Upper Churchill reservoir are not upheld by the Quebec Superior Court.
if HQ had failed to telegraph warning signals in advance of Muskrat Falls’
sanction. They involved complex legal issues which deserved
clarification by Nalcor and the Government – something that was not
forthcoming. Rightly, critics pilloried Nalcor for proceeding with Muskrat Falls sanction in spite of the
myopic quest for project sanction outstrip the duty of care which ought to have
governed such a major decision?
will have to make up its own mind on this question, based not just upon the
water management issue, but upon others raised here. However each of them will
be apprised, Nalcor had to have known it had no history of winning a legal
challenge in a Quebec Court. Yet, it was prepared to spend billions of dollars of public money even as it chased a dead end.
In addition, the Upper Churchill Renewal Agreement held no ‘smoking gun’ offering any assurance of successful legal recourse. In short, the failure to
obtain legal clarity first was tantamount to a roll of the dice. Why had the Nalcor leadership not learned at least that much?
understand how this situation evolved and what is at stake, we should begin
with a short history and explanation of the issue which, stripped to its
essence, is about whether Muskrat will be able to produce enough power WHEN it
is needed and whether Holyrood will have to be re-tooled (and fuelled) to help
keep the lights on, especially during the winter.
the Water Management Agreement (WMA)
2009, Nalcor filed an application to have the PUB establish the WMA on the
Churchill River. The authority was given
the PUB under the Electrical Power Control Act (EPCA). The Act provides that “all sources and
facilities …in the province should be managed and operated in a manner…that
would result in the…coordination of water flow when two or more operators are
on the same river.”
sought access to the Upper Churchill reservoir in order to optimise the power
potential of the two proposed Lower Churchill hydro projects. The system
devised is best understood if one understands it “was directed towards the
storage of energy not water”.
In essence, the WMA created an “energy bank”, one
that made provision for an independent coordinator to record power delivered to
the Upper Churchill for supply to HQ (effectively storing water in the
Smallwood reservoir) when Muskrat produced surplus energy. Similarly, the
coordinator would record drawdowns from the Upper Churchill when banked energy
was needed by Nalcor due to insufficient water flows downstream.
manages the Upper Churchill hydro facility. The Company is owned 34.2% by Hydro
Quebec; the other 65.8% by Newfoundland and Labrador. In spite of the
Province’s majority ownership CFLCo still enjoys limited decision-making
flexibility. The Company operates under a
shareholders’ agreement which requires a special majority decision of the Board
of Directors in certain matters which includes the plan of water management.
Hydro Quebec directed the CFLco board not to support it, giving rise to the
PUB’s decision to impose the plan subject to the agreements mentioned.
this conditional feature, Hydro Quebec maintained that the WMA, and plans by
Nalcor to access energy produced by the Upper Churchill in excess of that
provided in the Renewal Contract (as Nalcor interpreted it), still impinged its
rights under the Renewal Contract causing the legal challenge to be
HQ alleged that Nalcor applied a new and incorrect interpretation of the
Renewal Contract allowing it to change the way it runs the facility, one that
permits Muskrat Falls and Churchill Falls to be operated as a single integrated
system. HQ further argues that CFLCo cannot sell to “third parties”, including
Nalcor, an amount of power in excess of the 300 MW Recall provision contained
in the original contract.
If HQ’s arguments are upheld in Court, the WMA will
be lost because Nalcor will have no power to direct CFLco management to do
anything to help it co-ordinate the power generation schedule. The
justification for project sanction will have foundered.
importance of the WMA was emphasized by then Natural Resources Minister Kathy
Dunderdale who told the House of Assembly on March 30, 2010 the PUB had
established the agreement “to be binding upon Nalcor and CF(L)Co”. The Premier did not tell the House it could make no such imposition on CFLco unless HQ agreed.
Dunderdale also told the House of Assembly during Question Period, on November 5,
2013: “one of the things that we realized right from the very start was that we
had to have control of water management of…the Churchill River.”
its importance was manifested by Nalcor, too, in the extensive documentation it
submitted to the PUB in support of its Application for the WMA. Nalcor’s pre-filed evidence echoed the
language of the EPCA:
management agreement is required to provide the mechanisms of coordinated
production. The operation of the agreement will ensure the efficient use of
water on the river system by ensuring that water is available to meet all
producers’ requirements, while maximizing the energy produced from the water
confirms that the Upper Churchill alone, running at capacity, provides water
flows sufficient to generate 630 MWs of Muskrat Falls’ 824 MWs name plate
capacity. But, the problem facing
Muskrat, if Nalcor loses the legal challenge, is that the Upper Churchill does not
run at capacity all of the time. Power
is generated according to a demand schedule provided to CFLco by HQ within
limits defined in the 1969 Contract, which HQ states is unchanged in the
flow of water from the Upper Churchill maintains the river’s ecosystem, but
that quantity, which reduces Upper Churchill production to just 1200 MW, is far
less than the amount Muskrat needs to operate at any amount near its capacity. The additional water flows below the Upper Churchill reservoir, from rivers are tributaries, are insufficient alone to compensate for the shortfall required for maximum production.
challenge to Nalcor’s schedule is further compounded because even when the HQ
schedule calls for a higher load it takes twelve hours for the additional water
to arrive at the Muskrat Falls plant.
This is hardly an arrangement, in the absence of a working WMA, which
allows the facility to reach its power making capacity for extended periods of
time, and to meet the demands of both the Island and Nalcor’s export customers.
The schedules will simply not always be the same.
other problems, too.
water flows, entering the Churchill River from below the Smallwood reservoir,
are seasonal. As one would expect, the period of highest demand for power
(January to May) does not coincide with the period of highest water volume,
which occurs during the spring freshet.
those issues is the size of the Muskrat Falls reservoir system.
facility is not like the Upper Churchill’s Smallwood reservoir system which has
a catchment area the size of the Province of New Brunswick. That system affords
CFLco the ability to maintain peak power production for long periods even if
the ecosystem feeding it experiences periods of low precipitation over several
Muskrat has a very small reservoir, actually 0.2% the size of the Smallwood
reservoir, capable of storing only enough water for a day or two of
production. For that reason it is
described as a “run of river” hydro facility.
Excess water is spilled, representing a loss of potentially stored
energy. Conversely, too little water robs power from the generators, which must
be supplied from another source, possibly from Holyrood and thermal generation.
those concerns, Nalcor described how the absence of a WMA would have dire
consequences. In evidence filed with the
PUB, it stated:
absence of a water management agreement, Nalcor would not even have advance
knowledge of expected flows from the Churchill Falls facility to enable it to
take steps to mitigate spillage through advance drawdown of the lower Churchill
reservoirs. These outcomes are not consistent with maximizing the long‐term
energy generating potential of the Churchill River… In the absence of a water
management agreement, Nalcor would be required to utilize the water as it
became available. Given the limited storage capacity in the Gull Island
reservoir (approximately three to four days of maximum flow from the upper
Churchill facilities), Nalcor would have to turbine the water and produce
energy at the time that it was available; it would be required to “chase the flows”
from the upper Churchill. Spills would be likely during the period of the
spring runoff, resulting in wasted energy.”
the larger Gull Island project to explain its case in the PUB submission.
Because of its large capacity potential and scale economies, it was
the preferred project until Premier Danny Williams’ ‘go it alone’ strategy facilitated the Muskrat Falls project. Muskrat has approximately one-third the
design capacity of Gull Island and the reservoir is correspondingly smaller.
of the small reservoir and uncoordinated water release from the Upper Churchill
was also demonstrated by Nalcor in its PUB filings. Nalcor spoke to HQ’s right,
under the Upper Churchill contract, to take allocated power in the first or the
last 20 days of each month. Minimal water flows, during the day time, were
modelled for the other 10 day period. The schedule during the low water period
put Muskrat in a position where it was capable of producing only 170 MW
(essentially an amount equal to the size of the Nova Scotia Block), leaving
Nalcor with a significant power shortfall.
gives dimension to the problem the WMA was intended to resolve. Accordingly, one might anticipate a seamless
narrative both in the evidence Nalcor gave the PUB and afterwards, when Hydro
Quebec initiated the Court challenge, except Nalcor’s story is anything but
Nalcor’s WMA claims anything but consistent
HQ formally contested the WMA, Nalcor was aware that HQ’s refusal to support
the Agreement presented serious challenges.
The Island’s winter power demands have to be met. The project needs cash flow from sale of the
4.9 terawatt hours (TWh) of scheduled power production bearing in mind the value of the energy
in non-peak periods, as a surplus product sent to the export market (mostly
Nova Scotia), is relatively small.
likely legal challenge offered every reason to slow down the sanctioning
process, and to seek a Declaratory Judgement (a legal determination by a court
that resolves legal uncertainty) Nalcor ignored the risk of proceeding. In place of heading to Court, after its own
voluminous evidence foretold disastrous consequences for both proposed Lower
Churchill hydro projects, if the WMA was defeated, Nalcor back-pedalled, not on
the Muskrat Falls project, but on the importance of the WMA.
Warning the PUB, in 2009, Muskrat would be required to “chase the flows”
from the Upper Churchill Nalcor Vice-President Gilbert Bennett, by 2012, said
in a Press Statement on October 22, 2012 “No agreement or consent by
Hydro-Quebec is required to provide water management certainty for lower
Yet, HQ’s signature endorsing the WMA remained vacant and the provincial law that gave effect to the WMA remained cauterised by HQ’s exclusive access to the Upper Churchill.
position also contrasted with the comments of President and CEO Ed Martin who
had personally weighed into the issue, in January 2012, not that you would expect
them to be at variance with sworn evidence presented to the PUB.
time, Martin released a Statement giving rebuke to Ontario Energy Consultant,
Tom Adams of Adams Energy. A prolific
writer and critic of the Muskrat Falls, Adams wrote an “Open Letter to the
electricity consumers in Newfoundland…” publishing it on his Blog just as the Muskrat Falls project Reference Question given the PUB was under consideration.
charged Nalcor with “vastly overstating the usable output from Muskrat
Falls…” The allegations followed
Nalcor’s refusal to answer a question he had put to them seeking “the
incremental stand-alone per KWh cost of Muskrat Falls”. Nalcor had replied:
“The requested analysis does not assist consideration of the Reference
Question”. It was a standard Nalcor response, one that effectively stymied
information that did not lead to the Corporation’s desired outcome in the
performed his own analysis and commented that even as an integrated system,
“water coming to Muskrat in June is useless for island consumers because the
island is already spilling water” at that time of year. During the winter months of Jan./Feb./Mar.,
he calculated, “the maximum output of Muskrat will be about 500 MW due to the
seasonality of water flow”. Among other
allegations, Adams argued “…the annual output of Muskrat Falls is never going
to get close to 4.9 TWh.”
said he would apologize if he was wrong. His comments constituted not just a
significant broadside to Nalcor. They caused enough consternation that the
Nalcor Chairman and CEO sought to have him pay up.
displays a clear lack of understanding…of the Muskrat Falls development”
charged Ed Martin on January 30th, 2012. “I’m compelled to correct the
statements made by you, and request…the prompt apology…” Continued Martin: “I’m
not sure if you are aware of legislation in our province that requires a water
management agreement to be in place…The terms of the agreement which have
already been established, requires Muskrat Falls and Churchill Falls to operate
as an integrated system (and) provide…access to over 30 billion cubic meters of
storage upstream in the Churchill Falls reservoir.”
Loose with the truth
between Adams and Martin is noted chiefly to further confirm, if confirmation was needed,
that Nalcor’s reliance on the Upper Churchill via the WMA for Muskrat
viability was absolute and that the single tool it had in its arsenal was provincial legislation which lacked the power of enforcement.
For that reason
Nalcor’s switch in tactics and its denial of the WMA’s importance, at the
highest level, is simply perplexing – that is except if one discounts the long trail of deception over Muskrat that Nalcor has reduced to artistry.
over-played its hand in the evidence it gave the PUB to secure a meaningless WMA? Or, was
it being loose with the truth, as JM once opined, in its determination to
obtain project sanction?
questions are valid.
sought from their Consultants the very approval the PUB had denied them. In this pursuit, suggested JM, Nalcor represented to both Manitoba Hydro International and to Navigant that the Water
Management Agreement represented an unconstrained transmission system. In other words, they represented the position
that Muskrat had access to unlimited water storage (actually, its energy
equivalent) via the Upper Churchill.
the uncertainties of the WMA been revealed to those Consultants, would they
still have been willing to support Muskrat as a viable project?
It is hard to
imagine on what basis they might.
Court Case involves other issues, too
implications of a failed WMA describes only one dimension of a far more
complicated issue. There are other
supply issues, however, all of which the Upper Churchill reservoir is expected
to resolve. They relate especially to
the high demand winter months and to commitments made under agreements with HQ,
especially the GWAC. In addition, the Recall provision of the Upper Churchill
Agreement limited the province to 300 MW of which, by 2015 only 80 MW was not
described the role of the Water Management Agreement to take power in excess of
Recall from Upper Churchill, in winter, as “magical, pixie dust thinking”. This
suggestion might have arisen during one of his more generous moments analysing
the Muskrat Falls project.
concern in Nova Scotia
the legal status of the WMA concerned Emera and the UARB of Nova Scotia, too.
of the places to which Muskrat critics looked for insight into the structure of
the deal was to evidence given at
Hearings held by the Utility and Rates Board of Nova Scotia (UARB) because Nalcor played a niggardly game with information that might expose the folly of the project. Even there, during the public hearings on the Maritime Link, the UARB was skillful, too, deflecting
attention from an issue all knew would challenge Newfoundland and Labrador
financially, if failure of the WMA left Nalcor with an energy shortfall.
aware that Emera had contractually secured the Nova Scotia Block, justifying
the Maritime Link for that Province, whether Muskrat ever produced a single
KWh (the tie-in with the Bay d’Espoir power plant allayed those concerns).
Likely, that is why part of Nalcor Vice President Humphries’ evidence was
allowed to stay obscure during cross-examination at the UARB Technical
Hearings, on October 28, 2013.
about the water management agreement, Humphries took his cue from the Nalcor CEO and answered the question in an obverse manner to Nalcor’s pleadings before the PUB when it first sought the Water Management Agreement. Said Humphries: “water management will not materially impact the firm to average spread that we
anticipate having post-2017”. Pressed on the point by a MR. RATHLE: “So the firm
output of Muskrat Falls with and without the water management agreement is the
same?” HUMPHRIES replied: “Yes. From an energy perspective, yes”. Asked by
Rathle: “…can you explain…why that would be the case?” HUMPHRIES replied: No, I
think that’s beyond the scope of this inquiry here right now.”
Vice President had ducked the most basic question he could have been asked. His
escape, under the cloak of the Hearing’s
limited “scope”, held an eerie resemblance to the words “(t)he requested
analysis does not assist consideration of the Reference Question” – the refrain
that kept Tom Adams, David Vardy and dozens of others a safe distance from the truth about Nalcor’s obscure and doubtful claims.
a Technical Conference, there were plenty of participants who were
knowledgeable of such issues in the room who might have insisted that Nalcor’s
man explain himself – except they needed no such disclosure. They knew the
words “from an energy perspective” implied that if the WMA failed, production
of the 4.9 TWh of electricity would likely get produced over the course of a
year, but that Muskrat would often be incapable of scheduling Muskrat power generation when it was needed.
UARB unconcerned? Quite simply, NSPI, Emera’s subsidiary, had assured them
water rights issues would not serve as an impediment to obtaining the NS
The UARB wrote that Emera subsidiary NSPI had confirmed “there were no
risks to taxpayers from the non-delivery of energy by reason of any legal claim
respecting the flow of water or arising from the reduction of water flow itself
from the Churchill River”. The Report continued: “The contractual arrangements
between Emera and Nalcor do not allow for the non-delivery of energy…Risks
relating to Muskrat are borne by Nalcor.”
question of where the power would come from, in the absence of the WMA, did not
concern the folks in Nova Scotia, it was certainly on the minds of critics in
Newfoundland and Labrador.
was “JM”, the anonymous engineer who wrote extensively on the Muskrat Falls
project. His articles included a Paper entitled “The Water Management Agreement
and Peak Delivery to the Island“. He addressed a number of questions in an
effort to seek clarity from Nalcor as to how the WMA would actually work, given
the limitations inherent in the Upper Churchill Renewal Agreement.
Nalcor had told the PUB, in 2009, that the Renewal Agreement altered the way
CFLCo supplies energy to HQ, the claim was obscure to him as it was to the
lawyers and others (including this writer) who were members of the 2041
Group. We had repeatedly challenged
Nalcor to show proof of its claim – without response.
scepticism arose, in part, because prior legal agreements did not seem to
bolster Nalcor’s case. The 1961 lease
act gave CFLCo the right to generate stored water in the Smallwood reservoir.
The 1969 Upper Churchill Contract granted the right to HQ to the power capacity
of the facility upon request. In addition, Part 5.2 of the Renewal Contract
states: “The Firm Capacity shall be available at all times when Hydro Quebec
has requested it. The document adds
“…whenever additional capacity can…be made available, such capacity shall also
be available to Hydro Quebec on request.”
agreement committed both energy and capacity to HQ. So did the Renewal Contract. The commitments are re-affirmed in the Guaranteed Winter Availability
Agreement, too. The GWAC provides “for
maximum availability of all generating units at Churchill Falls during winter
months”. CFLCo is compensated “for ensuring that 682 MW of additional capacity
is available during the winter.”
totality, the agreements require that CFLCo make available to HQ approximately
4,100 MWs in the winter and 3,860 MWs in the summer subject to limitations of
the 225 MW TwinCo block (as compensation for the closure of the Twin Falls
plant which was closed in 1974 so that the water could be diverted into the
Smallwood Reservoir) and the 300 MW Recall Block.
capacity of the Upper Churchill is 5428 MW. When transmission line losses
(about 5%) are accounted for, the arithmetic suggests that, even in winter,
there is potentially more than 500 MW of power capacity available to the party
that has the rightful claim, assuming all 11 generating units which comprise
the plant are operational.
numbers are important because we are afforded a glimpse into how Nalcor planned to access that surplus power, even if from an unlikely source. The comments
were made in an interview conducted with political Blogger John Samms by Nalcor
V-P Gilbert Bennett. They especially
caught the attention of JM took who took care to parse them in his Paper.
part of Bennett’s dialogue is notable in part for its inconsistency with the
evidence Nalcor filed with both the PUB and with the Joint Federal/Provincial
Environmental Panel. States Bennett:
full output, Churchill Falls, would discharge about 2000 cubic metres per
second into the Churchill River. Assuming no reservoir draw down, this level of
discharge from CF would by itself provide about 630 MW of production at Muskrat
Falls. We could run MF at a higher output level for a period of time and draw
down the MF reservoir, or we could hold that capacity for reserve in the event
of a maintenance issue, and dispatch our other hydro units in the Nalcor fleet.
We always maintain reserve in the system, so we could keep it at Muskrat Falls
as well as anywhere else. We currently make these dispatch decisions many times
per day, responding to water levels, inflows, system load, maintenance issues,
on the island. With the interconnection, MF/CF will be added to the mix.
seems to be sure Nalcor has access to excess capacity and is assured the Muskrat
reservoir offers any potentially missing power reserve through drawdown of the reservoir. This resolution, of course, is not nearly as
simple as Bennett suggests and not only because the Muskrat Falls reservoir is so relatively tiny.
As JM reminds us Nalcor, in filed documents with the PUB, “…clearly
identify that the Muskrat Falls reservoir will be maintained at 39.0 meters to
optimize the energy output from the falls”.
“drawdown” of the Muskrat Falls reservoir was also given attention by the Joint
Panel, too, but for other reasons. Dr. Jeffrey Brooks of the Geological Survey
of Canada, whose participation in the Hearings of the Joint Federal/Provincial
Environmental Panel were most instructive with respect to the North Spur instability issue, recommended that “Nalcor establish a procedure for drawing
down the Muskrat Falls reservoir to minimize the chance of triggering a
large-scale earth flow”.
was referring to geotechnical issues associated with the project, particularly
the problem of “quick clay” induced bank instability and risks associated with
seismicity along the Churchill River. He
was concerned that “if they (Nalcor) draw the water down rapidly, there could
be high pour water pressures that trigger some of these (bank) failures”.
Report the Joint Review Panel stated: “In order to operate the reservoirs as
efficiently as possible, Nalcor would keep the water levels at a fixed level
for most of the year, avoiding the big changes that people have been used to
seeing in the Smallwood Reservoir.”
issues, the Panel was concerned about fish habitat and noted that “when there
are competing uses of a river system, water should be formally allocated for
ecosystem purposes (and) recommended that the Province develop environmental
flow standards to be applied to the Lower Churchill Project.” Another issue plaguing drawndown was that the Muskrat reservoir posed several ice-related problems.
considerable limitations on reservoir drawdown contrast with Gilbert Bennett’s
assertions Nalcor had other options if it was prevented from applying the
management regime for banked energy under the WMA. Indeed, Bennett most exemplified the absence of consistency as he lurches from one claim to another unmindful they are at times inconsistent with prior Nalcor evidence submitted to public bodies, under oath in the case of the PUB.
Nalcor pins hopes on excess power from Upper Churchill
second comment, also recorded in Samms’ Blog Post, and reviewed by JM is even
more revealing. This time Bennett
refers to the 1969 Upper Churchill Contract and advances the proposition that
“Hydro Quebec is only entitled to their Annual Energy Base (which) limits the
obligation of CFLco to deliver energy to Hydro Quebec”. It is in making this
comment he discloses Nalcor’s primary objective in connection with the Upper
Churchill and how Nalcor hopes to overcome even the limitations on available
capacity imposed by the GWAC. Says
this – the GWAC is effective during the winter months. However, section 2.1 of
the Renewed Power Contract entitles HQ to take the Continuous Energy in each
month, including during the winter. Referring to Volume 1 of our application to
the PUB for the water management hearing, the average production at CF is about
34 TWh. If we deduct the 2.36 TWh and 1.97 TWh for recall and TwinCo
respectively, we’re left with approximately 29.7 TWh for HQ, or approximately
2.5 TWh per month. Interestingly enough, this means the plant will deliver on
average just over 3470 MW for HQ + 525 for NLH/TwinCo (or 3995 MW out of 5428
MW) over the course of the month, meaning that while HQ can have ‘additional
capacity’, they cannot have it all of the time, as they will exceed their
energy allowance. This point ensures there will be lots of opportunities to
withdraw stored energy from CF, even in the winter.
giving definition to a view which Nalcor had communicated to the PUB, one in
which it believed the Renewal Agreement modifies how “Continuous Energy” is
III to the HQ power contract (the Renewal Agreement) alters the manner in which
the (Annual Energy Base) will be supplied to HQ by CFLCo”, Nalcor told the
PUB. “Upon renewal, HQ will become
entitled to receive Continuous Energy. …as a result, HQ will be entitled to
essentially equal amounts of energy during each month, after renewal”.
of the Renewal Contract defines “Continuous Energy” in the context of calendar
day/month/year but Article III, dealing with “Recapture” power limited “the
power and energy agreed to be sold…” to the limits stipulated in Section 5.4 of
the Agreement. That Section set the “maximum
withholding” to 300,000 kilowatts (300 MW) per year.
is reminded that, under the Administration of Premier Frank Moores, the
Government’s attempt to increase the Recall provision from 300 MWs to 800 MW
failed in both the Newfoundland Supreme Court and Quebec Superior Court; decisions
later upheld on Appeal to the Supreme Court of Canada. Nevertheless, Bennett
paid no deference to that critical judicial outcome. Nor did he offer
clarification as to the legal standing of 5.2 of the Renewal Agreement which
states in part “…whenever additional capacity can…be made available, such
capacity shall also be available to Hydro Quebec on request”.
difficult not to conclude the expostulation by the Vice-President Gilbert
Bennett that Nalcor can access electricity produced by the Upper Churchill in
excess of HQ’s “energy allowance”, including that provided under the Guaranteed
Winter Availability Contract, is pivotal to Nalcor’s hope of giving the
corporation a new source of revenue and to meeting the province’s winter energy requirements in the future.
never took time to consider that the Quebec Superior Court might bar Nalcor
such power access and stop the crown corporation from exercising the scheduling
of water flows, too. Bennett and his boss, Ed Martin, never seemed troubled that the Court might render any provincial legislation governing the WMA completely irrelevant.
Hydro Quebec sees plenty over which to litigate
generally known that the Upper Churchill Contract is morally egregious; a
condition only worsened under the Renewal Contract. The rate per KWh of power sold to HQ in the
twenty-five year renewal period, 2016 to 2041, will actually decline from 2.5
mils per KWh to 2.0 mils per KWh. All of the economic rent associated with the
sale of electricity by CFLCo will accrue to Hydro-Québec; a condition which
may, yet, imperil CFLCo’s solvency.
problem, along with the questions raised by Gilbert Bennett, spurs a variety of
legal issues, on no account will they be addressed in greater detail here. The
purpose of this narrative is essentially to raise the question whether Nalcor’s
right to trade water in the Upper Churchill reservoir and to give itself access
to that plant’s excess power capacity is so clear and unequivocal that it need
not have halted the Muskrat Falls project pending the legal clarity afforded by
a judicial decision – a Declaratory Judgement.
Bennett’s disclosure, many pondered this question: if the WMA did not abrogate any of the
rights of HQ under the Upper Churchill Renewal Agreement and the GWAC, why
would HQ contest Nalcor’s interpretation of the Renewal Agreement in Court? In
other words, what was left to argue over?
Bennett’s arithmetic on the Upper Churchill’s unutilized capacity confirms
there is, if he is correct, plenty to argue over including much needed
additional power during the winter months.
In addition, the belief that CFLCo
has the right to fulfil the Renewal Agreement in fixed monthly allowances, if
upheld, assures Nalcor a level of predictability as to HQ’s demand schedule it
is now denied.
challenge, therefore, is not isolated to whether the WMA can be legally
enforced, but also whether HQ has first claim on the total capacity of the
Upper Churchill until 2041.
see a large prize at the Upper Churchill. Hydro Quebec may see the cost of
failing to sustain its legal position as significant, but not nearly as much as
might Nalcor. At stake for Newfoundland and Labrador is the very
viability of the Muskrat Falls project.
have chosen to legally contest the WMA, in 2010, when the PUB first granted
approval. But, it waited as Nalcor advanced the project. In fact, HQ did
nothing until well after Premier Dunderdale formally sanctioned Muskrat Falls
sanction on December 17, 2012.
months later, on July 22, 2013, having watched a NL government oblivious to
risk and having made financial commitments, which by then had exceeded $2
billion, Hydro Quebec made its move.
Requête introductive d’instance before the Superior Court, in Montreal, not to
contest the validity of the Water Management Agreement directly but to ask the
Court to uphold how it defined its claim to the waters of the Upper Churchill
as expected, that the 1969 Power Contract, both before and after renewal in
2016, gives it access to all of the power and energy generated at Churchill
Falls, except for the 225 TwinCo Block (relating to the Iron Ore Company of
Canada operation in Labrador West) and the 300 MW Recall Block.
to Gilbert Bennett’s assertion “that while HQ can have ‘additional capacity’,
they cannot have it all of the time”, HQ stated that it has the “exclusive
right to purchase virtually all of the power and energy produced by Churchill
Falls Generating Station until August 31, 2041” as well as “the right to benefit
from operational flexibility.”
further asserted that “CF(L)Co’s position is incompatible with several
provisions of the Contract.” It stated: Hydro-Québec wishes to have the Court
confirm that it will not be obliged to limit its requests for energy deliveries
to fixed monthly blocks from 2016 to 2041.”
immediate public response to QH’s legal action was terse. In a press release dated July 26, 2013, it
stated simply: “CF(L)Co has completed a preliminary review of the motion filed
by Hydro-Québec in the Quebec Superior Court… The company remains confident it
has made a full and accurate interpretation of the terms of the 1969 Power
Contract and the 2016 renewal.”
lawyer, Bern Coffey, speaking for the 2041 Group, gave further context to HQ’s
legal position but kept his remarks within the more limited framework of how
HQ’s will challenge the WMA. Said
Coffey, the WMA “purports to alter HQ’s contractual rights by allowing the
scheduling of Nalcor production for CF(L)Co. In this context, ‘Nalcor production
for CF(L)Co’ means Nalcor generating electricity at Muskrat Falls (or Gull
Island) for delivery to Hydro-Quebec in Quebec. While Nalcor maintains the
source of the electrons CF(L)Co delivers to Hydro-Quebec doesn’t matter, no one
knows whether the courts would support Nalcor’s position.”
raised the very issue which possessed Muskrat critics: it wasn’t the question
of whether HQ was being petulant or greedy or whether it was foolishly arguing
over which facility produced the electrons it had contracted to receive: at
issue was the question of legal certainty for Nalcor.
argue that the concept of the water management agreement seems sound, as long
as either all the players are on-side or that the Courts have up upheld the
plan as enforceable. Hence, the only question that really matters is this: just
how fragile is Nalcor’s position, in practice?
underscored by Coffey: “no one knows whether the courts would support Nalcor’s
position…. Without ‘Nalcor production for CF(L)Co’ and ‘CF(L)Co production for
Nalcor,’ the WMA can’t be implemented”.
lawyer and former Public Prosecutor suggested what any prudent Counsel might,
especially given the size of the Muskrat Falls investment. Coffey advised
“Nalcor should now either reach an agreement with Hydro-Quebec or have the
Courts definitively determine the matter. Otherwise, Hydro-Quebec may in future
institute legal proceedings, the outcome of which could be disastrous for
Newfoundland and Labrador.” He added: “billions of dollars are at stake. Legal certainty
is required, particularly in light of Hydro-Quebec’s past success in defending
its power contract rights…(t)he point is simply that the outcome of any such
legal proceedings is far from certain.”
of a new legal challenge, one that would have to be heard in the Quebec
Superior Court, ought to have caused Nalcor to put the project on hold, pending
judicial clarification of the issue. But that is not what occurred in spite of
the fact that at all times Court decisions are uncertain. Out of the Quebec Superior Court they are slam-dunk.
This Province has been shut out in three
prior legal challenges on issues pertaining to the Upper Churchill and water
rights, in the Newfoundland and Quebec Superior Courts, and the Supreme Court
of Canada. On what basis was Nalcor so
certain it could win now, as it placed billions of dollars at risk?
inevitable Court decision will have profound implications. They may reach well
beyond proof of whether the legacy over which Danny Williams
salivated, and the combined hubris of politicians and bureaucrats, have imperiled
this much heralded investment. NL’s claims to energy independence will be under
threat, likely well into 2017, as any Decision of the Quebec Superior Court
will most certainly be appealed to the Supreme Court of Canada.
Bern Coffey of the 2041 Group: “This application to court by Hydro-Quebec is
going to have a significant influence…whatever interpretation the court chooses
will define the limits of the water management agreement.” The Court will
decide “whatever the renewal contract ultimately is interpreted to mean (and)
how the water management agreement can be applied, if at all.”
Will Muskrat be the “End Run” Williams Promised?
Falls was “sold” to the public on the basis that it would produce 4.9 TWh of
electricity per year, that it offered a Cumulative Present Worth (CPW)
advantage over the “Isolated Island” option by $2.2 billion.
Cost overruns and
the drop in the price of oil, Holyrood’s feedstock, long ago destroyed this
claim. Eventually, the Courts will determine if Muskrat is worth even less; if Muskrat
will be capable of supplying the Island’s off-peak requirements let alone the
winter demand, or Labrador mining to which commitments, and then some, Nalcor
tied the project in its all-out effort to justify project sanction.
sad irony if, rather than doing an “end run” around Hydro Quebec, Muskrat Falls comes under its thumb, too.
is that one group of politicians and bureaucrats were willing to ‘roll the
dice’ in a Quebec Court, risking billions of dollars of public money.
How can we not conclude, considering all the risks which have been described, that the lawyers appearing before the Quebec Superior Court will be representing fools at the Bar?