Hands tied by Bill 29

Legislation forces government to keep Muskrat Falls oversight reports secret

James McLeod jmcleod@thetelegram.com
Published on March 17, 2014

Premier Tom Marshall has signalled he’s close to announcing beefed-up government oversight of the Muskrat Falls project, but the vast majority of it will remain totally secret because of provisions in the Bill 29 access to information legislation.

Marshall told reporters last week he plans to set up a committee of senior bureaucrats to review Muskrat Falls spending by Nalcor.

He also told reporters some additional information will be made public as part of the process.

But the government’s hands are tied by the Bill 29 amendments to the Access to Information and Protection of Privacy Act.

Back in the spring of 2012, the Tories made it illegal to release any information which is used to inform cabinet deliberations.

When Bill 29 was passed, it greatly increased the scope of cabinet records, which now includes any ”discussion paper, policy analysis, proposal, advice or briefing material, including all factual and background material prepared for the cabinet,” as well as “a record created during the process of developing or preparing a submission for the cabinet.”

All cabinet records must be kept secret; the government doesn’t have any leeway to decide whether or not to make them public.

So if the Muskrat Falls oversight committee reports to cabinet, then its reports cannot be made public.

That seems to run counter to what Marshall said on Thursday, when he explained the broad outlines of how the Muskrat Falls oversight system would work.

“It will go through the officials and then come to cabinet. Through cabinet, of course, different ministers will get their instructions,” Marshall said. “One part of it, as the minister will outline as well, is that Nalcor’s independent auditor does the annual report, as you know. But also, the independent auditor will be providing special reports to the government officials, and that report will released publicly.”

But by law, either the independent auditor’s report will go to cabinet, or it will be made public. It would be illegal under Bill 29 for both to happen.

When The Telegram contacted the premier’s office about this apparent contradiction, a spokeswoman for Marshall issued a brief statement.

“There will be a new oversight protocol put in place with a reporting structure that will require a public report. We will not contravene the Access to Information and Protection of Privacy Act. Minister (Derrick) Dalley will announce full details next week.”

Liberal Leader Dwight Ball said he remembers debating the cabinet confidentiality section of Bill 29 very well, because the debate over that section lasted more than 24 hours.

Ball said he remembers former Government House Leader Jerome Kennedy walking in after an all-night debate during the filibuster, and asking deputy House Leader Darin King what part of the law they were debating.

“He lost it,” Ball said. “He couldn’t believe we were still on clause 6.”

During the epic debate, the Liberals actually proposed a specific amendment which would have changed the word “shall” to “may” which would have allowed the government the discretion to release cabinet information if it wanted to. The Tories defeated that amendment.

Now, Ball said his reading of the law is that all Muskrat Falls oversight work must be kept secret if the committee is reporting to cabinet.

“They have no choice but to keep it secret under that piece of legislation,” he said. “It’s one of those two things. It’s either you really don’t have any intention at all of making it public, or No. 2, you don’t understand the impact or scope of Bill 29.”

New Democrat Leader Lorraine Michael said it really doesn’t matter what’s released, as long as it’s all still happening within the core government bureaucracy, because that’s not true oversight.

“Oversight for me means an open and transparent process that is independent, so that we can trust the objectivity of the oversight,” she said.



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