As the fun was winding down in Dildo, Jimmy Kimmel having
accepted the title of Honorary Mayor rather than face an Election, Judge
Richard LeBlanc was wrapping up the Inquiry into the Muskrat Falls Project. It
was time to begin the contemplation of a problem far harder than that which had
excited Kimmel’s viewers all week.
Likely, Kimmel had stolen even the “die-hards” who might have otherwise
tuned in for the Inquiry’s last inning. There was no pleasure to be had in
Goose Bay anyway. There was only the pained legal verbiage of banal lawyers
representing Nalcor and the venal politicians — the “culprits” — as well as the
“contractors” (Astaldi), the “silent” (Newfoundland
Power), and the senior bureaucrats, the “submissives”, whose practiced
deference helped create the debacle.
Judge LeBlanc will have the last word; unlike Kimmel, cautious
metaphor will be the least of his problems.
As one of the interveners, I am glad it is over.
It was an essential piece of work, one whose creation was long
sought by writers on this Blog, including this scribe. I acknowledge the Ball
Government having called it, even if after some prodding.
I also look forward to the Commissioner’s Report and believe
that Judge LeBlanc will deliver one that is fair and balanced and likely — dare
I say — to satisfy no one.
There are some things I already miss: Commission Counsel Kate
O’Brien’s star power, for example. She resigned a bit early, following her
appointment to the Supreme Court, but left a profound impact on the Commission
with a trail of determined, insightful and intelligent examination of Witnesses
that spoke to her suitability to perform the complex and challenging role.
|Commissioner Richard LeBlanc (CBC Photo)|
Except for those who spend a lot of time in and out of the courts,
we might miss Co-Counsel, Barry Learmonth, too; his skilled, detailed and
relentless Examinations having either elicited answers from reluctant
storytellers or unceremoniously exposed their ill-intent. Altogether, his was
also a superior performance.
Some of the Examinations were especially memorable. O’Brien’s
patiently insistent handling of Ed Martin, during Phase I, qualifies. Weaker
litigators might have lost patience with him far earlier but she stuck to her
script, leaving it to LeBlanc to reign in the arrogant, failed CEO. The Judge may have allowed his practiced
patience with courtroom bullshit to slow his eventual dressing-down of the man
but it came, even if somewhat late. “I’ve had it, Mr. Martin,” an exasperated
LeBlanc bellowed, the hard crash of his gavel signifying that he had heard
enough of Martin’s evasive bullying after more than two and a half days on the
Witness Stand. “You’re not being the witness here. You’re trying to run the
show. It’s going to stop right now. And if it doesn’t stop, unfortunately I’m
not going to be able to hear the rest of your story.”
The Judge was not nearly finished: “You are not responsive to
the questions. You’re actually being rude as far as I’m concerned and I don’t
want it anymore. I wouldn’t put up with it in court, and I’m not going to put
up with it here,” LeBlanc continued, often wagging his forefinger in Martin’s
Danny Williams might also have come in for an early and
similar dose of the Judge’s wrath. The smug former Premier who — though having
signed the Term Sheet with Emera and the Premier of Nova Scotia which put the
Muskrat Falls project in motion — was unable to produce any of the analyses
proving the worthiness of the project, which he boasted had been prepared by
his Administration. Instead of merely enlisting Williams’ help in locating
them, given the size of the debacle he had spearheaded, the Judge might have
sent him off to Confederation Building with appropriate threats if the hunt did
not end successfully.
That said, Barry Learmonth’s interrogation — “mauling” is a
better word — of former senior bureaucrat, Todd Stanley, during his “walk-back”
from earlier assertions that Nalcor was a “runaway” train, as ordinary civil
administration goes, should remain for every Muskrat watcher just a “click”
Irene Muzychka, who replaced O’Brien, did not have sufficient
time to climb the steep learning curve, but junior Counsel Michael Collins’
tackling of complex engineering issues, his sharp memory of Witness testimony
and project reports, and his unflappable and thorough questioning of Witnesses,
did not go unnoticed.
There are some things I won’t miss, and not just the hours
given to reading pre-Examination interviews and framing questions. I especially
won’t miss watching ill-equipped lawyers representing “Parties with Standing”
work through issues which they clearly did not understand.
If there was a fault with the Inquiry’s structure and process
it was surely that engineers, economists, and other professionals were not
permitted (ostensibly because of the requirements of the Public Inquiries Act)
to ask questions to Witnesses directly. Such a process would have facilitated a
more equal encounter; questions and answers from opposing professionals of
similar training and expertise would have produced a more accurate and useful
outcome and limited Witnesses’ ability to leave the questioner snowed.
It is also worth remembering that there were only three
Parties with Standing that did not represent Government or private interests
(i.e. the Premier, bureaucrats, Nalcor officials). In addition to Counsel,
public interest intervenors included only the Concerned Citizens Coalition, the
Consumer Advocate, and the Grand River Keepers. The Crown barely played a role,
a matter to which I may return another time. Notwithstanding their right to
Counsel, the private interests were represented by well over twenty lawyers.
Did due process, permitting every politician and bureaucrat to
protect their derrieres, place the public interest in a position of disfavour?
I expect that, in time, this is an issue that government, policy institutions,
and academics will assess.
Still, I am certain that the heft of Commission Counsel was a
strong compensatory influence given not just their skill-sets but also the
sheer volume of Exhibits examined and the number of issues raised.
As an intervenor, I might not be the best one to weigh the contribution
of the Concerned Citizens Coalition or that of the other two public interest
Parties. I hope that each of us made some mark on the outcome. For me,
personally, David Vardy’s name will always stand out for his hard work,
superior intellect and unwavering focus. Ron Penney and others, most preferring
to be nameless, also offered their time and considerable expertise, all of whom
justly deserve the moniker “citizen”.
Did the Commission hear all the issues on the minds of the
Concerned Citizens Coalition? No, but the Coalition had ample opportunity to be
heard and its 83-page written summation reflects views formulated both before and since
the Inquiry got underway.
There are many members of the public who still believe that
the Inquiry was a waste of money. I disagree, and have said so many times even
knowing that nothing that the Commissioner reports will return the immense
amount of public money squandered.
I remind people daily that, no differently than the Budget
deficit and the out-sized public debt, the cost of repairing the financial
damage caused to the province by this project has not struck home. When the
bill arrives, presumably next year, I expect that Judge Richard LeBlanc will
quickly replace Jimmy Kimmel as Newfoundland and Labrador’s media sensation.
Just watch, too, as those power bills replace the high-toned humour for which
Dildo was suitably recognized last week (and for which Dildonians deserve
The Judge’s Report will chronicle incompetence of comedic
proportions. Unlike the week in Dildo, humour will be hard to find; even in
tone expect only the pejorative. In which case it is well to remember that,
when a far less smiley Judge LeBlanc (less than Jimmy Kimmel anyway) gives you
the straight goods, be sure that you don’t shoot the messenger.