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Brian Jones: Read it and weep

A dissatisfied reader accuses me, and others, of “playing lawyer” regarding what is included and what is not included in the terms of reference for the upcoming Muskrat Falls inquiry.

 

Brian Jones
Brian Jones

 

As I wrote last week, the inquiry’s terms of reference will not allow the commission to delve into the important and relevant question of whether the Liberals should have immediately cancelled the Muskrat Falls project upon their election in 2015.

My disgruntled correspondent claims a layman, i.e., someone whose name isn’t followed by the letters LLB, can’t provide a definitive interpretation of the inquiry’s terms of reference.

Notwithstanding that any lawyer worth their $400 per hour could present a substantial rebuttal to my postulation, and whereas the terms of reference are written in English and are therefore open to deciphering by a reasonably learned citizen, I humbly submit that the inquiry’s terms of reference, as set out in Section 4 of Newfoundland and Labrador Regulation 101/17, are indeed exactly as I previously described.

Your Honour, and esteemed members of the jury — that would be you, dear reader, and the rest of the province’s citizenry — I submit that the commission of inquiry’s terms of reference are politically motivated, manipulative and, prima facie, every bit as fraudulent as the project they profess to examine.

Section 4 of Regulation 101/17 contains four subsections, each describing an aspect of the Muskrat Falls project that the commission “shall inquire into.”

Subsection (a) deals with the sanctioning of the project, assumptions it was based on, whether it really was the least-cost source of power and whether other options were considered.

Subsection (b) deals with costs: why they increased, how Nalcor hired contractors and suppliers, how Nalcor supervised contractors, whether the terms of contracts contributed to increasing costs or construction delays, and risk assessments that were conducted.

Subsection (c) addresses whether the (Progressive Conservative) government was justified in exempting the Muskrat Falls project from oversight by the Public Utilities Board, and what effect this had on costs and delays.

Section (d) addresses whether the (Progressive Conservative) government “was fully informed” about anticipated risks and potential delays and cost increases, and whether it “employed appropriate measures to oversee the project.”

Section 4 contains 524 words. None of those 524 words are “stop,” “cancel,” “cease” or “discontinue,” or any variation that would authorize the commission of inquiry to examine whether the Liberals should have put an end to this budget-busting debacle.

The subject won’t come up. It can’t come up, because the terms of reference don’t instruct the commission to address it.

Don’t be intimidated by the statute format or the legalese of the language. It is considerably easier than reading Shakespeare.

Section 6, in its entirety, reads, “The commission of inquiry shall make findings and recommendations that it considers necessary and advisable related to Section 4.”

Ah, “related to Section 4.” Ladies and gentlemen of the jury, this is overt manipulation.

Witness: “At that point, it became apparent that the project should be cancelled.”

Lawyer: “With all due respect, we’re not here to determine whether or not the project should have been cancelled.”

There is great public interest in the Muskrat Falls inquiry. Spectators can familiarize themselves with the ground rules by reading Section 4. It is online at http://www.releases.gov.nl.ca/releases/2017/exec/NLG171120.pdf.

Don’t be intimidated by the statute format or the legalese of the language. It is considerably easier than reading Shakespeare.

Those who make an effort to read it may get a feeling that they’ve heard this kind of manipulative manoeuvring before. Of course! It was when Dam Danny pontificated about the profits that would accrue from developing Muskrat Falls.

This inquiry will be a waste of millions of dollars. Sure, it might ferret out some emails and reports that will make everyone gasp.

But the largest question that needs to be asked already has an answer. How did this disaster happen? It happened because the Newfoundland public is gullible and malleable.

 

Brian Jones is a desk editor at The Telegram. He can be reached at bjones@thetelegram.com.

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