The following appeared today in the Halifax Chronicle Herald.
Power play worries Tory senator
By STEPHEN MAHER Ottawa Bureau
Tue. Dec 15 - 4:45 AM
Sen. Lowell Murray is calling for the federal government to get involved in the proposed sale of NB Power to Hydro-Quebec.
Speaking in the Senate chamber Monday, the Progressive Conservative said Ottawa cannot afford to stay out of the discussion on the proposed sale of NB Power because of the implications for interprovincial and international trade, and also because New Brunswick would be, in effect, ceding legislative power to Quebec, a "broad constitutional issue."
Mr. Murray, who was born in New Waterford and was minister of federal-provincial relations under former prime minister Brian Mulroney, warned that neighbouring provinces have reason to worry if Hydro-Quebec takes over NB Power’s transmission lines.
"The disappearance of the New Brunswick system operator sends an ominous signal," he said. "I will say as objectively as I can that Nova Scotia and Newfoundland and Labrador have every reason to be concerned."
The federal government has stayed out of debate on the proposed deal, under which New Brunswick, in exchange for $4.8 billion, would hand over its power generation facilities and transmission lines to Hydro-Quebec and alter its regulatory legislation to comply with Quebec’s.
Premiers Darrell Dexter of Nova Scotia and Danny Williams of Newfoundland and Labrador have asked New Brunswick to sign a letter promising they will have the right to build their own transmission lines through New Brunswick.
New Brunswick Premier Shawn Graham has refused, pointing out that American regulators would guarantee that other provinces have the right to export power through New Brunswick.
The federal government should not allow that American intrusion into interprovincial trade, Mr. Murray argued.
"A policy of continued silence would be an implicit delegation of the federal government’s jurisdiction in this area of interprovincial and international trade to the USA Federal Energy Regulatory Commission and the Government of Quebec," he said.
"Nova Scotia and Newfoundland and Labrador would then be in the odd position of depending on the U.S. to protect their interests in Canadian interprovincial trade. If these interests are imperilled, it is surely the role of the federal government to protect them."
Newfoundland says Hydro-Quebec has already made it difficult to export electricity from Labrador to markets in New England, and it would be even harder if the Quebec utility controlled New Brunswick’s transmission lines.
Peter MacKay, Nova Scotia’s representative in cabinet, expressed concern last month in an interview with the Telegraph-Journal in Saint John, N.B.
The deal "hasn’t given fair evaluation to what other alternatives may be out there — which would include Nova Scotia, Newfoundland and Labrador and Prince Edward Island," he said.
"What are the alternatives to what has been presented by Hydro-Quebec? We don’t want to see any Atlantic Canadian provinces left out or left behind."
Da Legal Stuff...
Now, with that out of the way...Let's Web Talk.
Tuesday, December 15, 2009
The following appeared today in the Halifax Chronicle Herald.
Monday, December 14, 2009
How do you win an un-winnable battle?
It’s a question that's been on my mind since learning that the Harper government, in spite of Parliament's rejection of new NAFO amendments that could see foreign vessels patrolling Canadian waters, has decided to go ahead and adopt those amendments anyway.
After such an incident there are those who question whether democracy is utterly and truly dead in Canada and whether our sovereignty itself has been bartered away. There are those as well who will see this as the final nail in the Atlantic fishery with NAFO nations freely able to rape the ocean clean once and for all. Already, in some circles, talk has turned to the need for independence and separation from this “undemocratic” Canadian federation.
All I can say to those good folks is that they might want to consider choosing their battles wisely and perhaps, in this instance anyway, the right way to counter Ottawa’s actions is to simply accept them as our new reality while seeking ways to address the underlying concerns on a more local level.
Let’s think outside the box on this one.
Beating our collective heads against an immovable object (the PMO, DFO, take your choice) isn’t going to solve the problem at hand and make no mistake this is indeed a problem.
The Harper government has shown in the past that it has no love for Newfoundland and Labrador and certainly isn’t going to backtrack on a very public decision simply to make Atlantic Canadians happy.
On the other hand, if we could find a way to mitigate the damage, and perhaps even enhance our power position in the fishery, over time, wouldn’t that be a victory in itself?
With that premise in mind, perhaps we should consider working within this new system rather than futilely fighting it without any real hope of victory.
A great example of just such a "novel" approach already exists in the province so there isn't even a need to re-invent the wheel.
A few years ago the provincial government and some local groups felt that the Feds weren’t doing enough to protect our rivers and salmon populations. They argued and fought with DFO for a while until finally deciding the best approach was to simply do something about the problem.
As a result a number of provincially funded wardens were hired and sent forth into the Newfoundland and Labrador wildneress. A public awareness campaign about poaching was started and this campaign led to citizens groups forming their own civilian river watches.
Thanks to these efforts and others salmon poaching in Newfoundland and Labrador is way down from where it was in the past, stocks are generally improving and Newfoundland and Labrador now has far more say in the protection of its rivers than it has had for decades.
Could a similar approach work with ocean stocks? Could this be the answer to so many of the concerns people have expressed about foreign influences on the offshore?
Let’s explore the possibilities for moment.
Instead of battling Ottawa over a decision they aren’t likely to undo we might be better off lobbying the provincial government and our own people to take the bull by the horns (or the fish by the tail) when it comes to fisheries conservation.
If we can find the collective will to act we might see a far different fishery a few years from now.
Every day Cougar Helicopter flights pass back and forth between St. John’s and our oil platforms at the edges of our 200 mile limit. Provincial Airlines planes travel over our Grand Banks on a regular basis every day. The Province’s newly purchased water bombers, when not fighting major fires, will be sitting idle. No doubt these bombers require test flights from time to time to help ensure they’re in good working order. Couldn’t those “test flights” skim over the Flemish Cap just to see what’s going on out there.
With enough eyes in the air reporting back on every fishing boat, row boat or rubber duck near our waters, in a very public manner, nobody at DFO will be able to claim they don’t know what’s happening or deny that anything illegal is going on at all.
The cost of these measures is essentially zero. All it takes is the will to co-operate.
But let’s take it a step further.
What about the countess cargo vessels and oil tankers that ply our waters every day? Couldn’t they be asked, as a courtesy, to help spot questionable fishing boats and report whatever they see? It’s just a quick radio call after all.
What about fishermen themselves?
Since the fishery has always been a major contributor to the province’s economy isn’t it time for Newfoundland and Labrador to invest a few dollars into helping the ground fish stocks recover? It doesn’t have to cost a lot and the return on investment might be surprising.
Most fishermen already know the tricks of the trade. They know where the most important fishing and breeding grounds are. They know where illegal fishing is happening and they know who is involved (both foreign and Canadian). Perhaps it’s time to get them directly involved in the conservation effort on a more formal level.
If Ottawa won’t adequately protect the fish stocks then the province should set aside 2 or 3 million dollars a year (a pittance in the grand scheme of things) to pay for provincial fisheries patrols.
Once most fishing captains have caught their quota for the season many of them simply take their boats out of the water and sign up for EI. Why not put yearly contracts out to tender seeking local captains to help patrol our waters once they’re finished fishing?
Of course these “civilian” patrols wouldn’t have any legal authority to stop rogue fishing boats or arrest anyone involved but they could certainly take a page from the same environmental activists who so often branded them as “barbarians” over the seal hunt. They could video tape the offending vessels, request official intervention from on site, provide very public evidence against violators and generally make offender's lives a living hell on the high seas.
Who knows, Ottawa might one day even help defray a small part of the cost should such a plan prove itself effective. After all, if off season fishers are gainfully employed in conservation efforts rather than collecting EI it would not only help remove the “stamp fishery” stigma attached to the industry but the effort could actually lead to savings in the EI system itself.
With enough Newfoundland and Labrador eyes on the water and in the air it might finally become a losing gamble for anyone bent on illegal fishing and I’m willing to bet it won't take long before the risks begin to outweigh the benefits for these culprits and we begin to get things under control.
As for addressing Ottawa’s new found fondness for allowing foreign patrol boats into Canadian waters, well, with countless eyes already on the water what possible excuse could they come up with for asking foreign nations to “invade” our 200 mile limit?
I began my little rant by asking how you win an un-winnable battle. I’ll close by saying that sometimes winning can take on different forms depending on your perspective.
The question we need to ask ourselves is this: Are we trying to win a battle with Ottawa for the sake of winning or are we truly trying to protect fisheries habitat regardless of Federal meddling and mishandling?
A few years ago when inland salmon stocks were in trouble DFO wasn’t stepping up to the plate. Today, thanks to local efforts those stocks are improving and Ottawa has practically abandoned its inland efforts, preferring instead to leave much of it up to the province and the public (not officially of course but the result is the same). In this case the dynamic has shifted and Newfoundland and Labrador has grown in strength.
Perhaps there’s a lesson in this for the future of the offshore as well.
Wednesday, December 02, 2009
Having been born, raised and now living in the province of Newfoundland and Labrador I make this suggestion only after careful consideration of what it might mean for my continued physical well being, especially if taken out of context. I also make it with the best of intentions and the best interests of the province in mind.
Earlier this week the government of Newfoundland and Labrador through CFLco, the operator of the Churchill Falls generating station, issued a request to Hydro Quebec asking them to consider renegotiation of the lopsided Churchill Falls contract. That request came after receiving a number of legal opinions, from what Premier Danny Williams referred to as, “some of the best legal minds in Quebec”. Fair enough, but I wonder if the people of the province should just learn to accept the existing contract as a part of the past and instead focus on the future. I wonder as well if the time, money and resources now used to fight the original 1969 contract might also be better spent looking forward instead of back.
Quebec’s quick and clear response to the province’s request was not an unexpected one by anybody in Newfoundland and Labrador, or at least it shouldn’t have been. Not in light of a study undertaken by the Economic Council of Montreal that shows 75%of Hydro Quebec’s profits are directly due to cheap power from Churchill Falls Labrador. The response was a simple and unequivocal no.
The question now becomes, “What should Newfoundland and Labrador do about that denial?”
This isn’t the first time the province has tried to re-open the original contract. In fact they’ve tried several times over the years through political avenues and with legal challenges in the Supreme Court of Canada. All attempts have been unsuccessful so far. That isn’t to say this latest effort, should it ever actually proceed to the Quebec courts, might not end differently. It may have merit or it may not, that remains to be seen. Regardless of any of that, I wonder if renegotiation of the original contract should even be the target of this or any future attempts at seeing justice done.
There is one aspect of the Churchill Falls dynamic that has never been tested in any court, either provincially or federally, yet it begs for just such a challenge. I’m not referring to the original contract itself, which is set to expire in 2016, about the same time any legal case would likely take to wind its way though the court system. I’m speaking instead of the automatic 25 year renewal clause that will kick in when that original contract expires.
Perhaps it’s truly time to accept the original Upper Churchill contract for what it is and focus on the 6 years it is still in force to challenge the upcoming contract renewal before that agreement is actually implemented.
Based on the legal opinions presented this week by CFLco, a challenge to the renewal contract might stand a far better chance of success and the salient aspects of Quebec civil law now being spoken of are only the tip of the iceberg.
There are those who question whether the Quebec civil law touted by Newfoundland and Labrador as the basis of its latest attempts would even apply retroactively to a 1960’s contract since that law itself was only implemented in the mid-nineties. The renewal on the other hand is set to come into effect years after that law was first put on the books providing Newfoundland and Labrador with additional support for action on that front.
The renewal is considered to be automatic however in essence it is still a new contract, one that includes an even lower power purchase price for Hydro Quebec than existed under the original contract. Challenging that renewal, before it is implemented, would allow the province to follow an entirely new avenue of action, one where Quebec civil code references to “good faith” and “equity”, might still be valuable as supporting arguments but need not form the main thrust of the province’s case.
In 2005 Professor James Feehan and Historian Melvin Baker, of Memorial University, presented a research paper entitled, “The Origins of a Coming Crisis – Renewal of the Churchill Falls Contract”. Their investigation into the events surrounding the renewal aspect of the agreement was later published in the Dalhousie Law Journal.
Feehan and Baker’s effort uncovered evidence of conflict of interest and the use of inside information by Hydro Quebec during the negotiation process. They supported those findings with newly uncovered documents and meeting minutes from the period that were not previously known to exist.
In the end the researchers came to the conclusion that this was a situation where Hydro Quebec used information about the financial position of CFLco it should never have been privy to in a bid to force the last minute inclusion of the renewal clause into the original contract. According to the researchers Hydro Quebec used this information to demand CFLco either “take it or leave it” eventually leading the company “take it”, a decision that made no sense in a business context except, as Feehan and Baker put it, they were acting under “duress”.
In the words of the researchers, the events raise questions of “…conflict of interest, economic duress…business ethics” and “law”.
Personally I’d love nothing more than to the true owners of Churchill Falls gain some kind of redress after decades of living with the one sided Churchill Falls contract but in reality that contract will effectively end in just 6 years and after decades what’s a few more years. Any legal challenge would likely take at least that long. Wouldn’t the time be better spent challenging the 25 year renewal contract which, as my dear Father has been known to say, “…is an entirely different kettle of fish”.