Procedural gobbledygook: The Muskrat Falls special debate

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Hey folks, it looks like we’ll be heading back into the House of Assembly pretty soon for a special debate on the Muskrat Falls project. Heck, according to Premier Kathy Dunderdale, we might be in the House before the end of October.

No, seriously. Stop laughing. It could happen.

In any case, at some point (hopefully) before the end of January (yes, I think there’s a solid chance it’ll be January) our honourable elected members will sit down and yell at each other for a while about the merits and issues with building a big-ass dam in Labrador. I’m not going to address any of those issues in this post; what I want to talk about is the format for that debate.

It’s been a quietly simmering issue for three or four months now, and it’s a great excuse to delve into some procedural nuances of the House of Assembly.

First of all, here are the basics.

The House of Assembly is governed by a series of rules called the Standing Orders which are essentially the framework for how the body operates. The Standing Orders enumerate how long MHAs get to speak, how legislation gets passed and a whole bunch of other things. They’re the rules that geeks like myself and Jerome Kennedy pore over, and the rest of the world just writes off as procedural gobbledygook — assuming they ever bother to look at them at all.

But the Standing Orders don’t have anything to say about special debates. Legally, there’s no requirement for the government to pass a piece of legislation in order to, say, build a massive hydroelectric dam or privatize a fish processing company. Nonetheless, for the sake of perceived legitimacy, governments choose to, from time to time, hold debates on legally non-binding resolutions to allow elected politicians to hash things out. It all goes on the record, and it all feels very transparent and democratic. Then the government with the majority wins the non-binding vote and they make whatever decision they wanted to anyways.

Under the typical rules, you could do a sort of special debate using a private member’s resolution, but that would only allow for one afternoon’s worth of debate. If they were to go the other route, and structure the debate around a piece of legislation, that’d be tricky – remember all of this exists in a legal nether-region – and it’d give the opposition parties the opportunity to filibuster the proceedings at the committee stage of things. Trust me, after what happened in June with Bill 29, I’m fairly certain Jerome Kennedy would rather drink a pint of water from the harbour than wade into any potential filibuster situation.

So typically, for a special debate, the three House Leaders – in this case Kennedy, Yvonne Jones and Lorraine Michael – sit down and come up with a list of provisional rules. Back in June, the Liberals sent the government a letter basically saying, “Hey dudes, what are your summer plans? If we’re all in town around the same time, how about we meet up at Ches’s, grab a feed of fish and chips and talk about this debate thing.” They never heard back, so last month, they tried again. This time around, they released a proper list of (proposed) rules for a special debate. Here they are (scroll through to the second page.)

Meanwhile, Premier Kathy Dunderdale has fairly consistently been saying that she’d like to see a debate that follows a similar set of rules to the Voisey’s Bay special debate from 2002. I haven’t been able to nail down how long, exactly, she’s been saying it, but it certainly feels like she’s been saying it since at least April or May. (Side note: Remember that magical time back in April and May when we expected to have decision-gate three numbers by the end of June, and we were going to have a special debate at some point over the summer? Those were heady days, weren’t they?) Here’s a link to Hansard where they lay out the rules of the debate at the start of the Voisey’s Bay special session.

So, assuming the PCs want the same rules as Voisey’s Bay, and the Liberals want what they say they want, here’s basically how the proposals stack up:

 

PCs:

Length of debate: One week.

Hours of debate: 10 a.m. to Noon, 2 – 5 p.m. and 7 – 10 p.m.

Question Period: 30 minutes.

Witnesses: Nope.

Prep time: Nothing specific.

 

Liberals:

Length of debate: As long as it takes. Probably nine days or more.

Hours of debate: 9 a.m. – Noon and 1 – 5 p.m.

Question period: 60 minutes.

Witnesses: Yup, and lots of 'em.

Prep time; Three weeks, minimum.

 

So basically, that’s the lay of the land. Now, this should probably be viewed as an opening bargaining position, especially on the part of the Liberals. Do they really want a full hour’s worth of question period, focused entirely on Muskrat Falls? I mean, they’d probably happily take if they can get it, but that strikes me as one of those things you give up at the bargaining table, in order to get what you’re really after.

What they’re really after is the ability to call expert witnesses into the House of Assembly. Specifically, they want to bring in folks from Nalcor and the various independent contractors who have done reports on Muskrat Falls, and cross-examine them. This is a road that the PCs really don’t want to go down. Quite aside from the potential for it to turn into a circus, I’ll wager that a lot of the people they hired to do reports on the project didn’t sign up for testifying in front of a legislative body.

By the way, the NDP hasn’t laid out anything specific in terms of a proposal, but they’re more or less in line with what the Liberals want. Michael has said she’d like to see witnesses called, that she thinks they’ll need a few weeks lead-time from when they get the final sanctioning numbers before they’re ready to debate.

Like I said above, typically, the parties sit down and hash something out and they come to a consensus.  As it turns out, you can basically break just about any rule, and do just about anything in the House of Assembly if none of the MHAs object to it – the technical term for this is “unanimous consent.”

(The most recent example of this is when then-premier Danny Williams convinced the opposition parties that it was a pressing emergency, and they needed to grab water, timber and hydroelectric assets from AbitibiBowater before they declared bankruptcy. Normally all legislation need to receive three readings on three separate days, but they passed the Abitibi expropriation bill in a single day. Over the course of one afternoon – faster than you can say, “Whoops, we didn’t mean to grab the mill too,” – the House held three readings of the legislation, and passed it into law. That’s the power of unanimous consent.)

Now, Dunderdale has been pretty strident on the Voisey’s Bay format, and has essentially ruled out the possibility of expert witnesses in the House. Liberal Leader Dwight Ball has called it “key” to the whole debate.  I suspect if they ever manage to sit down and hammer this stuff out, there’s a solid chance they’ll compromise by agreeing to call a single witness — Nalcor CEO Ed Martin — to be questioned by MHAs.

But if not, what happens? According to House of Commons Procedure and Practice (more commonly known by it’s dynamic duo of authors “O’Brien and Bosc”) a government can amend the standing orders via simple majority vote. That means if it really comes down to it, Dunderdale/Kennedy can say, “These are the rules, like it or lump it,” and they’ll have the procedural clout to make it happen.

(Here’s the relevant quote from O’Brien and Bosc: “Although the means by which the House reviews the Standing Orders vary greatly, the Standing Orders may be amended only by a decision of the House. Such a decision is arrived at either by way of consensus or by a simple majority vote on a motion moved by any Member of the House.”)

All of this comes with a few big caveats. For one thing, I’m not a lawyer. For another thing, I’m by no means an expert in this — just an enthusiast who will happily spend his Friday evening poring over books about legislative procedure. Most importantly, though, it seems that there aren’t any precedents for this sort of thing in Newfoundland. Nobody I’ve talked to can name any time in the province’s history where the rules of a special debate weren’t arrived at via negotiation and consensus.

I suspect the “my way or the highway” course of action is something Dunderdale and Kennedy will try to avoid, though. The government is still stinging from the Bill 29 filibuster, and a perception — rightly or wrongly — that they’re secretive and undemocratic. The fact that they limited the scope and length of the Public Utilities Board review of Muskrat Falls feeds into that as well. The political optics of ramming a special debate through on your own terms – over the howling objections of the opposition parties – is not what the government wants.

Anyway, that’s about where we’re at. A lot of this is speculation on my part, which means I’ll probably be proved sensationally wrong in the coming weeks and months. Be sure to pick up The Telegram in the next few weeks to see how things play out.

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Recent comments

  • Richard
    October 02, 2012 - 17:07

    In normal provinces, there are Standing committees, which, in the regular course of business, invite witnesses, experts and stakeholders to paryicipate in their proceedings. Maybe one day, Newfoundland will have such a system. Also - why the comparison to Voisey's Bay? I don't recall a crown corporation trying to develop Voisey's Bay with billions of taxpayer dollars. Apples and oranges.

  • Frank
    October 01, 2012 - 15:17

    The only gobbledygook is this.

  • Cyril Rogers
    October 01, 2012 - 11:33

    Mr. McLeod, the government has shown nothing but contempt for ay opposition to this deal and they have consistently maintained a "my way or the highway" approach. Why would they change now, especially if the DG 3 numbers are, shall we say, less than favourable?

  • JM
    October 01, 2012 - 11:18

    James.. The government has been talking about the special debate since the PUB decision. If the PUB had endorsed the ring fenced question then there would be no debate in the house. Prior to that there was going to be no vote other than the budget approval (from memory). If it was not for the PUB decision the DG3 would have been completed, and we would be well underway with site work in Labrador. Wait.... there is site work in Labrador going on?