What do you do when the watchdog also has a vested interest in whatever they’re supposed to be watching?
It’s a pitfall that has tripped up things like this province’s self-
regulating professions. It’s hard to oversee, for example, the conduct of lawyers, if it’s being done by a law society that also has an interest in maintaining the reputation of the legal profession. This isn’t to say that it can’t be done, but it does make the whole process harder.
The province’s medical board shares the same problem: it regulates doctors, but also has a vested interest in how doctors are perceived publicly.
There’s always that troubling issue that doctors can put themselves in other doctors’ shoes quite easily — and make different decisions than might be made otherwise.
(A former Liberal government in this province actually tried to address the issue with legislation bringing in oversight beyond the professions themselves — the legislation crashed and burned because of the discomfort the self-regulators had with actually having independent regulation.)
More and more, the concept is an issue the provincial government has to face in this province — because it has pretty healthy interests in several things that it’s also charged with regulating.
The provincial government, for example, draws up forestry management plans all the time, and then refers those plans to its own environment officials for review and approval — where they receive almost constant and virtually immediate approval, in fact.
As well, the provincial government, through Nalcor, is a part-owner of several oilfields — something that could, at some point, put it at odds with a regulator that the province actually appoints board members to.
It’s especially complicated because, as part of its partnership agreements, the provincial government has agreed to help its partners solve regulatory issues that may occur in the future.
And it’s not just the oil business.
Nalcor has also had to have its Lower Churchill project go though environmental review, partially by the province and partially by the federal government.
The reviews of various aspects of the project have not been without hiccups, but certainly the government and Nalcor felt comfortable enough about the eventual success of the project that it was sanctioned and underway before all of the environmental permitting was in place — a clear suggestion that the government expected the reviews would fall in line long before they could trip up the project in any way.
This really isn’t meant to suggest that the civil servants whose jobs include the regulatory review of projects aren’t doing their jobs. It’s more a question of the fact that it’s hard to conceive of a project having the full weight of the government brought to bear against it — especially in a circumstance where the government’s full weight is already being brought to bear on the other side of the equation. I do not envy the civil servant who might have to put up a hand and say, “Wait a minute.”
(I can already imagine the letter to the editor — “How dare you cast aspersions on hardworking, valuable public servants,” etc., signed, the minister.)
Now, there’s the example of the provincial government being both Nalcor’s owner and granting the project a trio of special project orders.
Special project orders set the ground rules for employers and unions on large projects, and that’s all well and good, unless the government is essentially also one of the parties involved in the project.
Which, of course, it is when it comes to the Lower Churchill development at Muskrat Falls.
Can the power relationship go sour? Of course it can — and it already has.
In a normal course of events, for example, the Public Utilities Board would review a project, make its recommendations, and the government, its overseer, would decide on those recommendations. In the case of the Muskrat Falls project, the PUB argued it didn’t have enough information to make a decision on a pet project of the government’s, so, unlike any other project, the province simply said “to heck with you.”
It’s hard to be both the gatekeeper and the gatekeeper’s customer, and not find your interests to be a little conflicted.
And it means that, in the process, the gate can be left far more open that you would normally expect.
Checks and balances exist for a reason — and when you’re the one doing the checking, it’s easy to leave a few boxes off your list.
Let’s hope that hasn’t happened here.
Russell Wangersky is The Telegram’s editorial page editor. He can be reached by email at firstname.lastname@example.org.