September 12, 2012

What Happens in Newfoundland and Labrador, Stays in Newfoundland and Labrador

Province passes amendment that limits access to information and protects the privacy of its goverment

by Miles Howe

The Dominion - http://www.dominionpaper.ca

HALIFAX—Despite a four-day, record-breaking, filibuster in mid-June, the provincial Conservative party of Newfoundland and Labrador passed a bill that will radically reduce public access to government information in the province. Bill 29 has drawn widespread criticism from legal experts, opposition politicians and working journalists alike, who have called the bill regressive and draconian.

“It's more of a piece of legislation that sets rules on how not to release things,” Russell Wangersky, an editor and columnist with The Telegram in St. John's, told The Dominion.

The amendment to the province’s Access To Information and Protection of Privacy Act (ATIPPA) has the potential to drastically reduce the need of the Newfoundland government to respond to, well, anything, really.

Requests that Cabinet determines are “vexatious, frivolous [or] trivial” can now be disregarded. The definition of "Cabinet confidences” has also been expanded to include documents that have been prepared for Cabinet, but which Cabinet doesn't need to have ever seen or used.

Bill 29 took its cue from a review of the ATIPPA, released in January of 2011, undertaken by career NL bureaucrat John R. Cummings, Q.C. Among other high-ranking governmental positions, Cummings has been Newfoundland's Deputy Minister of Justice, Deputy Attorney General and Secretary to the Cabinet. The new law subsequently implemented 16 of the review's 33 recommendations.

Cummings' review was supposed to rely heavily on a public consultation process, but Wangersky sees it differently.

“The review [to] our Access to Information Privacy Act...was overseen by a former civil servant who had a number of years experience turning down Access to Information requests,” says Wangersky. “[Cummings] heard primarily from civil servants and government departments and came up with modifications to the Act that substantially restrict the release of documents and put more and more of a control over what can be released into the hands of Cabinet.”

What won't be released under Bill 29 is substantial and subjective: No definition of vexatious, frivolous or trivial were provided in the amendment. Newfoundland and Labrador Minister of Services Paul Davis justified the addition of these terms into the Act by claiming that “countless” requests for information were swamping the Office of the Information and Privacy Commissioner. The Canadian Broadcasting Corporation subsequently weakened this argument when they revealed that the Information and Privacy Commissioner received an average of 11 requests per week from across the province.

Sections 24 and 27 of the bill are of special concern and could be potentially problematic, especially when considered in a political climate where the lines between commercial and political interests are becoming increasingly blurred. Section 24 relates to the prerogative of the 'public body,' in this case the Privacy Commissioner, to potentially refuse to disclose the release of any information that could relate to economic, technical or scientific information that is determined to have monetary value. Within this lies the potential to refuse disclosure of information related to public-private partnerships.

Section 27 applies to the disclosure of information that would impact business interests of a third-party (like labour relations or trade secrets). In these cases that the public body has the duty to refuse to disclose. In the cases applicable to section 24, the public body may also choose to do so.

When coupled with the new, wide-sweeping, re-definition of Cabinet confidences, suddenly the avenues towards accessing information stand to become quite narrow indeed.

Hugo Rodrigues, president of the Canadian Association of Journalists, sees this as a step away from governmental transparency.

“When you're creating new classes of information for documents and briefings prepared for Cabinet that extend to not just what hit the Cabinet table, but to what is prepared for Cabinet but is never actually considered by Cabinet, then you're excluding that entire class of information from ever being accessible,” Rodrigues told The Dominion. “The intent there is obviously to keep information from ever reaching the public eye.”

To Gerry Rogers, Member of the Newfoundland and Labrador House of Assembly for St. John's Centre and NDP Justice Critic, there's more than just control for the sake of control behind the Conservative government's rushing through of Bill 29 just before parliament took its summer break.

“We asked a number of times during the filibuster: 'Why?'” Rogers told The Dominion. “We had a very good Act as it stood. And particularly during this time when we have huge decisions to make—why they would do this? And there was no answer.”

Rogers suspects, however, that the potential of the Muskrat Falls hydroelectric facility and the interests of numerous companies—including Alderon Iron Ore Corp—the Quebec-based mining company looking to develop thousands of hectares in Labrador, loomed large in the Conservatives' decision to rush through Bill 29.

On March 28th, 2012, Alderon provided former provincial Progressive Conservative Premier Danny Williams with a stock option for 1,125,000 shares—the same day that Alderon appointed Williams to its Board of Directors. Representatives from Alderon have argued publicly for Muskrat Falls, and Williams, now at least officially out of the political sphere since 2010, has gone so far as to publicly chastise the Public Utilities Board (the arm's length body responsible for sifting through the data around—and ultimately approving—Muskrat Falls) for requesting more data from the provincial government and more time to complete it's review.

That current Premier Kathy Dunderdale and the current provincial Conservative government, responsible for passing Bill 29, rode into another majority in 2011 on the coattails of Williams' local popularity, is an agreed upon truth among political pundits.

The interests of Altius Minerals Corporation, the Newfoundland-based company, add more shades of grey to a picture whose lines stand to become increasingly difficult to discern under Bill 29.

Altius is one of several companies whose proposals concerning the Lower Churchill Project—of which Muskrat Falls is but a part–was selected by the Williams government in 2005 for "more substantive evaluation and discussion.”

Altius Investments Holdings owns 32,285,006 common shares in Alderon, while Altius Minerals Corporation, under the name 2260761 Ontario Inc, owns 584,000 common shares in Alderon. Alderon, whose need for a source of power is one of the few missing puzzle pieces between themselves and Labrador mineral development riches, would arguably be one of Altius'–and Muskrat Falls'-main clients. With Danny Williams on the Alderon board, things begin to become complex.

Muskrat Falls, which has not yet begun construction, has a 2010 estimated cost of $6.2 billion and an estimated generating capacity of 824 megawatts. It is publicly being touted by the governments of Newfoundland and Nova Scotia as a key component towards shifting their respective grids to "renewable” energy.

The scope of the proposed project is vast and involves linking the dam from the Lower Churchill River in Labrador–via undersea cable–to Newfoundland. It will then be linked to Nova Scotia via another undersea cable and will feed the Nova Scotia grid approximately 170 megawatts. It is a massive undertaking and partners Nalcor Energy—Newfoundland and Labrador's Crown corporation—with Emera Inc, Nova Scotia's private monopoly energy provider.

While 13 contracts have been signed on the deal and clear cutting has begun near the proposed site, Muskrat Falls is awaiting federal loan guarantees to begin construction.

“Muskrat Falls...is perhaps the biggest project this province has ever undertaken aside from whether or not to join Confederation,” says Rogers. “It will be very expensive. It may have a number of players. And this government ran on a platform of accountability and greater transparency. This amendment (Bill 29) came out of the blue and it's so contrary to the platform that they ran on. The other thing is that there's huge mining and resource projects in Labrador. And there's a lot of decisions that will have to be made in that area.”

Brad Cabana, who maintains the blog rocksolidpolitics.blogspot.ca, was the first to publicly write about the potentially troublesome links between the current provincial government, Williams, mining interests, financing and Bill 29. Cabana is currently in a suit/counter-suit with Danny Williams and Alderon, but maintains that the public in Newfoundland and Labrador, and Nova Scotia, are being fleeced if they think that Muskrat Falls is in any way about them or so-called "green” energy.

“There's upwards of 13 mining developments going on in Labrador right now. And even Muskrat Falls couldn't possibly [power] all of that,” Cabana told The Dominion. “It's illogical...it makes no business sense to send power to Nova Scotia, to Emera. I propose that [former PM Danny] Williams used that strategy to hook in [federal MP] Peter McKay and company to try and get [federal] loan guarantees for Muskrat Falls...[Williams] has been trying to get the feds in and get a loan guarantee since the 2006 [provincial] election.

"I think the only way they could do it was to hook up with Emera and get that power to Nova Scotia, and I don't think it's going to happen. I think Williams is just using it as a ruse to get a loan guarantee and then they're going to find a way to get out of it. It just doesn't make any sense on any level. It doesn't send enough megawatts to earn any money for Newfoundland – 400-500 megawatts is nothing in the market. I don't even know if it replaces one coal plant down in Nova Scotia.”

Whether or not Muskrat Falls is meant to serve the potentially lucrative Labrador mines, or is truly the "renewable” energy source that the Newfoundland and Labrador and Nova Scotia populace are being told it will be, will become increasingly difficult to determine under Bill 29. It essentially ensures that the public will have to take the provincial government of Newfoundland, and corporate spokespeople, at face value, and guarantees that whatever happens in Newfoundland and Labrador, stays in Newfoundland and Labrador.

Miles Howe is an editor with The Dominion and a member of the Halifax Media Co-op. Follow him @MilesHowe.

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