Guest Post by Cabot Martin
amend the Muskrat Falls Inquiry Terms of Reference
Way back in the 1980’s when I was hanging out in the Premier’s
Office on the 8th floor of the Confederation Building as Senior
Policy Advisor to the Premier, I noted that there was one group that everyone
respected – the Legislative Drafters.
help of the Cabinet Secretariat) would draft, debate, amend and finalize what they
thought the proposed new Act or Regulation should do and contain.
Legislative Drafters, as specialized a group of legally trained professionals
as you will find.
|Mr. Justice Richard LeBlanc|
wishes in terms required by any governing Acts including the all-embracing
Courts would interpret the Act, Regulation or Order-in-Council in question.
instruments are to be strictly interpreted as to their scope and intent.
document would once again go to Cabinet and be approved and promulgated as an
Order-in-Council – every word and comma the genuine law of the land.
stand, Judge LeBlanc may well find himself boxed-in amidst cries from some
lawyers that “Judge you can’t go there. Look at the limitations of the wording
of the Order-in-Council”.
out in Order-in-Council O.C.2017-339 which was passed pursuant to the Public
about the wording of the Order in Council — Oh that’s up to Judge LeBlanc – he can decide
to do that ; Oh that one too is up to Judge LeBlanc – he can decide to do that
Judge LeBlanc some sort of judicial Generalissimo with God-like powers. He too,
and he especially, is bound by the strict requirements of the Legislature’s
Acts and past judicial decisions.
take on the deficiencies in the Muskrat Falls Inquiry Order in Council:
LeBlanc Needs to be able to Go Back Further in Time Than Presently Allowed
exclusively to the actions of “Nalcor” restricts the period which Judge LeBlanc
is entitled to look at to that after Nalcor was created; i.e. after Nalcor was
formed by an Act of the Legislature on June 14,2007.
Muskrat problem, the genesis of the dilemma we find ourselves in, took place before
Judge LeBlanc from examining the documents and discussions surrounding the
initial SNC Lavalin Feasibility and Financial Plan study commissioned by the
Province in 2006 or any of the discussions or arrangements that flowed from it or
were connected with it.
issue must be included within the specific ambit of the Inquiry
Council. Not surprisingly, and without need to expound on the matter, I feel that
Council supports the Nalcor position that the public’s right to know is not
superior to Nalcor’s right to keep “Commercial Considerations” secret
public interest than the “commercially sensitive” clause that was written into
their founding act in 2007.
only to the public but also just recently to the Premier himself when he went
looking for something as simple as who are all these private contractors you
have on the payroll?
Officer (CEO) – once Ed Martin and now Stan Marshall – has the unfettered and
unchallengeable right (subject only to an amendment of the Act by the House of
Assembly) to declare any matter to be “commercially sensitive” and thus beyond
the reach of any governmental demand let alone an ATTIPA request by a private
guided by “ the need to balance
commercial considerations and public accountability and transparency” (Sub-section
4(d)) was truly jarring given how we got here.
Limitation on Inquiry with respect to recommend further investigations is too
herculean proportions; let’s hope he has the wisdom to surround himself with
the best and brightest legal and technical staff.
process, he and his team will know more about what went on regarding Muskrat
than anybody else. And their expertise will be literally irreplaceable
Council has been used before (for instance in the Dunphy and Cameron Inquiries
Orders in Council), this case seems totally different.
criminal investigations (unless required by law) is to handcuff this society as
it tries to find a way forward.
Justice Done on Muskrat?” hanging over its head.
criminal charges be laid against a specific X, Y or Z or that a specific X,Y or
Z be sued in a civil action.
General, if he feels it desirable, that specific incidents, decisions, contracts or transactions related to
Muskrat Falls be separately investigated by the AG as to whether civil actions
or criminal investigations should be initiated before his Final Report is
complete – as much as 2 years from now.
have tried below to come up with some compromise language in that regard.
for Judge LeBlanc to have access to all necessary expertise
Inquires Act to put together a team to assist him, Cabinet has included wording
in the Order in Council to make it clearer that Cabinet considers that the broad nature of the inquiry will
require specific types of expertise.
commission of inquiry may engage the services of persons having special
expertise or knowledge including those with financial, engineering and
Spur problem, there is no specific mention of geotechnical or Quick Clay
expertise; I have included below a specific amendment in that regard.
as a discipline is critical to proper project execution and to unravelling what
did and should have gone on.
the term “project manager” seems to have been used very loosely with regard to individual
employment contracts – this is an issue the Premier is very familiar with.
audit” and “forensic auditor” distasteful, all the while saying – Oh yes Judge
LeBlanc can do one if he wants.
Trump with Mueller’s team of lawyers and forensic auditors closing in on him.
pushers” overwhelmed by detail – they get to the crux of the matter fast.
significant commercial crime has taken place with respect to Muskrat Falls.
if he feels it desirable, the sort of team that was recently put together by
Madame Justice Charbonneau in the case of her inquiry into corruption in the
Quebec construction industry.
subsections of the Order in Council.
the 8th floor. I will propose
some “precise” language by way of amendment to the 5 relevant clauses.
further if given positive political direction.
Legislative Drafters are trained to use plain language and make things clear –
within the direction given to them by Cabinet.
amended at the beginning by the addition of an entirely new subsection (aa) to
Ministers or provincial officials with any party in the period 2003 to 2007
prior to the establishment of Nalcor, relating to the development of the
Muskrat Falls project including all feasibility, economic, banking, corporate
structure, marketing and financing studies and in particular the SNC Lavalin Muskrat
Falls Feasibility and Financial Plan study dated 2006.
further amended by the addition at the end of an entirely new subsection (d) to
basis of adequate technical studies and prudently with respect to the
geotechnical and engineering investigation of stability issues at the North
Spur and in the preparation of Dam Safety Analysis and Evacuation Plans for all
components of the reservoir containment system.
“commercial considerations” do not override basic public accountability
and transparency in carrying out a large-scale publicly-funded project; and
of inquiry shall not express any conclusion or recommendation regarding the
civil or criminal responsibility of any person or organization except that the Commission of Inquiry may recommend that the
Attorney General focus on specific incidents, agreements,
decisions, contracts or transactions related to the Muskrat Falls for further
investigation by the Attorney General as to whether civil actions or criminal
investigations should be initiated and may do so in any Final or Interim Report.
commission of inquiry may engage the services of
persons having special expertise or knowledge including those with financial,
engineering, geotechnical expertise (including Quick
Clay expertise), construction project management
and execution expertise as well as persons
experienced in forensic auditing and with all relevant areas of construction
and commercial crime.
– It’s too late for any change now.
especially when there is so much on the line.
amend – I am sure Judge LeBlanc will welcome the added mandate – no one likes
to be boxed in.
the Public Inquiries Act under which the Muskrat Falls Inquiry Order in Council
Lieutenant-Governor in Council may by order revise the terms of reference for
the inquiry and revise the dates set for the termination of the inquiry and
delivery of the commission’s report.
chosen, well and good – but let’s give him the appropriate mandate.