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Nalcor contractors may complicate Muskrat Falls inquiry search for documents

A public inquiry into the Muskrat Falls project is designed to examine many aspects of the $12.7-billion hydroelectric project.
A public inquiry into the Muskrat Falls project is designed to examine many aspects of the $12.7-billion hydroelectric project. - file photo

Natural Resources Minister Siobhan Coady is “relatively confident” that the public inquiry into Muskrat Falls will be able to sift through all the relevant documents around the megaproject, but Nalcor Energy is refusing to answer questions about it.

Because the overwhelming majority of the Muskrat Falls project management team is made up of “embedded contractors” instead of Nalcor employees, it’s not clear whether all their emails and documents are being preserved for the upcoming public inquiry.

Moreover, Nalcor’s limited responses to The Telegram’s requests for information raise more questions than they answer.

Coady has been charged with making sure all documentation is ready for an inquiry, which Premier Dwight Ball has said the government will call by the end of this fall.

The inquiry is expected to examine many aspects of the $12.7-billion hydroelectric project, which has gone wildly over budget and is behind schedule.

The Telegram has reported that roughly 90 per cent of the management team is made up of embedded contractors, who can cost Nalcor more than $1,000 per day.

In a July 24 letter to Nalcor CEO Stan Marshall, Coady reminded him that the Management of Information Act requires Nalcor “to preserve all records created or received by Nalcor Energy, as these constitute Crown property. This obligation extends to Nalcor’s officers and employees.”

But what about the hundreds of embedded contractors who make up most of the Muskrat Falls project management team? Nalcor says they’re technically not employees, so would the law cover their emails? If two contractors were having an email conversation about some aspect of the project, but Nalcor never “received” those emails, would they be archived anywhere?

When The Telegram submitted an interview request to Nalcor, communications manager Deanne Fisher initially said Marshall was travelling and therefore unavailable to do an interview.

When The Telegram waited 2 1/2 weeks, repeatedly requesting an interview with Marshall or anybody else with knowledge of Nalcor operations, Fisher eventually explained the company was refusing the interview request.

In one email, Fisher said, “Since 2013 all Lower Churchill Project delivery team members have a Nalcor Energy-Lower Churchill Project email account to be used for all project-related emails.”

Fisher went on to say, “During orientation, Lower Churchill Project delivery team members are informed that a Nalcor email account has been created for them and that account must be used for all project-related emails and that emails should not be auto-forwarded to external email addresses.”

However, this explanation appears to directly contradict earlier information Nalcor has provided to The Telegram in response to access to information requests.

Embedded contractor Des Butt, who is identified in access to information documents as a “senior construction adviser,” started working for Nalcor in 2011, but he wasn’t given a Nalcor email address until 2017.

David Green, an embedded contractor working as a “quality manager,” also started working on the project in 2011, but didn’t get an email address until 2014, according to documents provided to The Telegram under access to information.

What’s more, it’s not at all clear which email accounts the embedded contractors were using in the critical pre-2013 period, when the project was still waiting to be sanctioned, even as preliminary construction work was underway.

In an October letter to Coady, Marshall detailed various steps the company is taking to secure documents for the impending inquiry, but it’s not entirely clear how those efforts will affect the embedded contractors.

Marshall’s letter said that, “Nalcor is also in the process of reaching out to former board members and external contractors to ensure that any relevant records are preserved.”

If contractors have already deleted relevant documents not already in Nalcor custody, it’s unclear whether there would be any recourse.

Coady pointed out that a public inquiry has enormous power to subpoena documents, but it can only work with the documents that still exist.

What would happen if some Nalcor contractor had process notes or emails relating to the project that weren’t sitting in Nalcor servers?

Coady said a lot of it should be covered by standard language in consultant contracts, but she acknowledged it might not be possible to scoop up everything.

“I don’t have a copy of every individual Nalcor contract in front of me, but I can just say from my business experience, contracts normally carry that requirement of documentation, but do they get to the level … of every email? You know, I don’t know,” she said.

“Every email is going to be difficult, I agree.”

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