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Muskrat Falls inquiry commissioner makes determinations on standing

Commissioner Richard LeBlanc at the first day of hearings Friday of the Commission of Inquiry Respecting the Muskrat Falls Project, at the Beothuck Building in St. John’s.
Commissioner Richard LeBlanc. - File photo by Joe Gibbons/The Telegram

Newfoundland Power Ltd. and Consumer Advocate’s presence to be determined

Justice Richard LeBlanc has made almost all of the final determinations on who will be directly involved in the day-to-day activities of the Muskrat Falls inquiry.

On April 6, individuals, corporations and collectives interested in being awarded standing before the inquiry made their case before the commissioner. LeBlanc reserved his decision in many cases, until written decisions were released to address each application Tuesday evening.

Having standing at the inquiry does not affect whether or not someone is called as a witness, or sought for expert input. But anyone granted full standing would have the ability to, for example, cross-examine witnesses appearing at the public hearings.

Philip Helwig, an engineer with extensive experience with hydro technology, was denied standing. The commissioner did invite any information Helwig might like to offer along the way to further the inquiry.

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Parties seek standing at Muskrat Falls Inquiry

The Innu Nation was granted limited standing. LeBlanc recognized their ability to address project consultations and the hydro project’s physical construction. The commissioner recommended the Innu Nation receive funding for a lawyer and one government representative, covering travel as required. LeBlanc did not recommend any additional money for new work with outside consultants.

The Nunatsiavut Government was granted limited standing. As with the Innu Nation, the commissioner recommended the government receive supportive funding for a lawyer and one representative, covering any inquiry travel required. LeBlanc did not recommend any money for consultants.

The Conseil des Innu d’Ekuanitshi (with a reserve in Quebec, but band members on both sides of the Quebec-Labrador border) were granted limited standing. LeBlanc recommended support in covering the costs of one lawyer and one council representative.

The Grand Riverkeeper Labrador and Labrador Land Protectors jointly applied for full standing. LeBlanc found the submissions — and then responses to questions from members Roberta Benefiel and Marjorie Flowers — revealed their main concerns to be in areas reaching beyond the scope of the inquiry.

“I do not have authority here to request any form of independent assessment as regards methylmercury contamination or the issue of the stability of the North Spur as seems to be the desire of these two groups,” he wrote.

That said, in living downstream of the dam project and able to speak about project risk assessments, he granted limited standing. They will be able to cross-examine witnesses on the subjects as outlined in his decision on standing, and make final submissions. The commissioner recommends financial support for the participation of one representative for each group, and one lawyer to assist.

Another joint request for standing was made by Democracy Alert, the St. John’s chapter of the Council of Canadians and the Social Justice Co-operative of Newfoundland and Labrador. LeBlanc found much of what the trio was looking to address, including broader concerns around a democratic deficit and process, went beyond the inquiry’s focus. He denied standing, but suggested the groups can still make a written submission to the inquiry.

Newfoundland Power will have full standing, including the ability to question witnesses, but only in the third phase of the inquiry. The commissioner did not see a reason for the same involvement earlier, given hearings will deal with decisions made by the provincial government and Nalcor Energy in sanctioning and managing the Muskrat Falls hydro project.

“From all that the commission has seen to date, Newfoundland Power has had no involvement nor decision-making in this project to date,” he stated.

But Newfoundland Power will have “special standing” in the first two phases of the inquiry. A lawyer for the utility will be included at the hearing tables, while the utility will also get advance notice of witnesses and be able to review all documentation given to the attorneys of other parties with standing.

A group of former Nalcor Energy board members — Ken Marshall, Leo Abbass, Gerry Shortall and Tom Clift — has been granted limited standing. LeBlanc deferred a recommendation on requested funding in that case.

A decision on the participation of Dennis Browne as consumer advocate has also been deferred. The law governing the consumer advocate’s office does not currently allow for standing before the inquiry.

  1. understand the Department of Justice and Public Safety may now well be taking necessary steps to permit the appointment of Mr. Browne to appear on behalf of the province’s power ratepayers at this inquiry as a consumer advocate,” the commissioner stated.

The Department of Justice will make all final decisions on the provision of supportive funding.

Full standing before the inquiry had previously been awarded to Nalcor Energy , Her Majesty the Queen in right of Newfoundland and Labrador, Ed Martin, Kathy Dunderdale, the Muskrat Falls Concerned Citizens Coalition, Julia Mullaley, Charles Bown, Robert Thompson, and a group of leaders from former Progressive Conservative governments (Danny Williams, Tom Marshall, Paul Davis, Shawn Skinner, Jerome Kennedy and Derrick Dalley).

Limited standing was granted to Emera, Astaldi Canada and jointly the Newfoundland Building and Construction Trades Council and Resource Development Trades Council of N.L. (RDTC).

The inquiry is scheduled for more than 100 days of hearings before the final report from the commissioner, to be filed by the end of 2019.

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