In papers submitted to media, the anti-Muskrat Falls company 2041 Group warns that a key question about water rights on the Churchill River has been left dangling.
The group — which consists of five St. John’s lawyers — warns Hydro-Québec could torpedo any agreement to share water and/or electricity between the Churchill Falls (Labrador) Corporation (CF(L)Co) and Newfoundland’s energy company Nalcor, on the basis that such an arrangement violates water rights entrenched in its contract with CF(L)Co.
“The outcome of any such legal proceedings is far from certain,” says 2041 Group. Indeed, legal outcomes are rarely certain. What’s more certain is whether a legal loophole is as big as a Mack Truck or as small as a spider hole.
2041 Group takes a number of angles with its warning, but the central question is this: would a water management agreement (WMA) threaten CF(L)Co’s ability to provide Quebec’s contractual supply at any given time of the year?
If not, I contend 2041 Group is engaging in the sort of monster-under-the-bed fear-mongering for which Premier Kathy Dunderdale and her predecessor have been repeatedly condemned.
I spoke with Nalcor’s Gil Bennett last week about the WMA. Not surprisingly, he said the 2041 Group got a number of things wrong.
First, he said a clause in Hydro-Québec’s power contract entitles it to extra capacity if available. The 2041 Group has suggested that could allow Quebec to demand power designated for Muskrat Falls under the WMA.
“(They’re) wrong on that point,” said Bennett. “It’s the difference between capacity — what the plant is capable of producing — and the energy requirements of Hydro-Québec.” HQ can vary the amount of production it requires on a day-to-day or hour-to-hour basis, he said, and can get more than what’s known as its “firm” capacity outlined in the contract.
“But they’re never entitled to more energy than their monthly allocation.” Bennett says they’ve done extensive modelling, and there’s no scenario in which the WMA wouldn’t work.
“There is no situation where either CF(L)Co or Nalcor would … interfere with the operation of the (Hydro-Québec) power contract.”
Over the past couple of weeks, the water rights issue seems to have lost some traction. My own foray ended on an interesting note this week.
When I emailed questions to Nalcor earlier this month, the result was a one-on-one phone interview with Gil Bennett. When I emailed a question to the 2041 Group’s Dennis Browne, the response was to send me their position paper, which I was already aware of.
On Tuesday, Browne — a former consumer advocate — emailed to say he was out of town last week and had only just read my previous column, in which I expressed skepticism over the 2041 argument.
Browne’s response? Contact Hydro-Québec.
“Why doesn’t Nalcor contact Hydro-Québec to ascertain their position?” he added.
“Why don’t you contact them?” I replied. Bennett had told me 2041 had not brought its concerns to Nalcor before going public, and I was curious to see whether they had approached Hydro-Québec.
“Do your own homework, Peter. You are the journalist,” Browne replied. It’s the kind of response I’d expect from an embattled politician, not a former consumer advocate. I should think Browne knows that Hydro-Québec has refused to comment on this matter in the past. CBC Radio’s Halifax morning show sought input, and was told the company does not comment on what it considers to be another province’s internal matters.
Nonetheless, I have forwarded an 11th-hour query to Hydro-Québec. I’ll let you know if I get a response, but I’m not holding my breath.
Peter Jackson is The Telegram’s
commentary editor. Email pjackson@thetelegram.com.
Twitter @pjackson_NL
UPDATE: Hydro-Québec's response: "We will not be commenting on this topic."
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Clearly, the Justice considered my points raised as posing "serious questions of law".Part of my argument incorporates the points made above. I will take her word over a first year law student 10 out of 10 times. The language is quite clear, so perhaps you should confine yourself to it as opposed to carrying on with your agenda of trying to be right in your premature arguments made as of late.