Everybody has been talking about it. But how many of us really understand what the decision of the Rgie de l'nergie, the board that regulates utilities in Quebec, really means?
Oh sure, weve been told by Premier Daniel Williams that the Rgie is biased, that it reached unsupported conclusions, ignored factual evidence, contradicted itself, suppressed evidence, and breached principles of fairness and natural justice.
However, after the debacle in Grand Falls-Windsor in which the premier, and the best legal minds available, couldnt execute a successful expropriation I need more than the premiers version.
I want to know what the Rgie decision is all about, without the political spin and annoying chest thumping. Just give it to me straight, please.
On this one, the media have let us down. Within days of release of the English translation of the Rgie decision, some newsroom should have brought us an unbiased summation of what it meant especially after the release issued by the premier on May 26, which made the incendiary accusations cited above. Surely a local newsroom has a lawyer on retainer, who could interpret this. If not, how about asking a local lawyer to shed some light, in an interview? Furthermore, why didnt the media challenge the premier to explain his outrage; to link his accusations to specific references in the Rgie decision?
I have seen just one mainstream media commentator take this on. Russell Wangersky of the Telegram read the decision, and offered his views here. I congratulate him for doing so.
I read the decision too, but due to the technical language and dense legalese, I didnt understand much of it. So I consulted someone with a solid legal background, who has read and understands the document. That person who requested anonymity walked me through the decision again, to the point that I think I grasp it.
I will offer a quick overview right here. If there are errors, I take responsibility for them. But if Ive got it wrong, please correct me, and make your case point to the language I have misinterpreted. I won't mind, honestly. My goal is to shine light on a complex subject, in a way that we can all understand.
Most of what needs to be understood can be found on pages 81 to 94. This is where the Rgie sums up the dispute between the two parties and the events leading up to their decision.
In a nutshell, if Newfoundland and Labrador Hydro (NLH) makes a request to carry power on Hydro Quebecs (HQ) transmission grid, HQ must oblige. If they dont have the capacity to do so, they have to tell NLH what it would cost to make the upgrades. However, HQ doesnt generate a range of scenarios for you. It is the responsibility of NLH to say precisely what they want where the power is coming from, and where it is going and HQ will furnish the cost to do that.
In this case, the province was not specific. We generated scenarios for five different amounts of power, going to five different locations with a range of 25 possible configurations.
We asked for a direct current (DC) inter-tie, because DC doesnt require the system to be synchronized. That is, the HQ system is not synchronized with Ontarios, so DC is required for inter-connection. This way, the power doesnt slosh and wobble back and forth, causing stability issues. (This is no small matter for utilities, as stability issues are what caused the massive Northeast power blackout of 2003).
HQs position is that, most of its power is generated in the North, at James Bay and Churchill Falls, and flows south toward the Montreal/Quebec City corridor and the U.S. border. The flow is north to south, not east to west. HQs position is that it has limited capacity to move the power from East to West. The capacity to ship power to Ontario, one of the options NLH had requested, is limited.
To sum up, NLH asked for DC inter-connections on 25 configurations. HQ did several studies and generated a number of alternatives. NLH claimed that these studies were not done correctly. And this was a key bone of contention.
But heres where things fall down, and it is not HQs fault. HQ brought forward its engineering studies to make its case. However, NLH called no evidence. We did not attempt to refute HQs evidence. HQs position was uncontested. We did not offer an alternative perspective. We did not cross-examine their witnesses, and we did not call a witness of our own.
Here is paragraph 386, from page 91 of the Rgie decision:
The only testimony from a professional with expertise in transmission system impact studies and the manner in which the impact study in question was conducted is that given by Engineer Deguire (for HQ). NLH did not call any experts to testify on these technical questions or to contradict witness Deguire.
The only available evidence in front of the board was that of HQ, which, on the face of it, has no obvious flaws or errors of logic.
The Rgie had no other option but to accept the case, as put forward by HQ. We lost because we didnt defend our position, or challenge theirs.
Now, I could be wrong. I, and my source, might have missed something. However, Im willing to bet that any mistakes, oversights, or even biases on the Rgies behalf come nowhere near the wild accusations Premier Williams made in his May 26 release.
And if I am wrong, please tell me. My intention is to start discussion about an important matter which, at this point, remains shrouded in mystery. Journalists and lawyers who have read and understand the agreement are welcome to weigh in.
Spare me the anti-Quebec rants and the traitor talk. I want to know the facts. Then, and only then, will I decide where my anger should be directed.
In the meantime, here is what the premier said about the decision in his May 26 2010 release. The discrepancy between his remarks, and what I have reported here, is striking. Can someone please explain whats going on?
The Honourable Danny Williams, Premier of Newfoundland and Labrador stated that the translation of the Rgie's decision indicates that in order to reach its desired results the Rgie acted as follows:
It reached certain conclusions without legal justification to support same;
It ignored express factual evidence and denied existence of some;
It made findings of fact while ignoring the weight of the evidence;
It contradicted itself and put aside its own previous decisions;
It used unsupported conclusions to pre-empt legitimate related arguments;
It ignored established principles of open access;
It engaged in significant misinterpretation of evidence;
It justified unsupported statements on the basis of discretion
It supported suppression of necessary evidence and working papers to assess System Impact Study;
It engaged in a major misinterpretation of the Open Access Transmission Tariff (OATT) which has no legal ground in civil administrative or common law rendering the entire complaint process ineffective;
It breached principles of fairness and natural justice.
The overall result is to deny access to Qubec facilities for the benefit of fellow Canadians while expecting open access from our American counterparts when requesting similar access south of the border, said the Premier. It is behaviour which should not be tolerated by Canadians or Americans who believe in fairness and competition in the market place for the benefit of consumers.