Here's to the crazy ones, the misfits, the rebels, the troublemakers, the
round pegs in the square holes... the ones who see things differently -- they're
not fond of rules... You can quote them, disagree with them, glorify or vilify
them, but the only thing you can't do is ignore them because they change
things... they push the human race forward, and while some may see them as the
crazy ones, we see genius, because the ones who are crazy enough to think that
they can change the world, are the ones who do.

Steve Jobs
US computer engineer & industrialist (1955 - 2011)

Saturday, May 25, 2013

Muskrat Falls is Constitutionally challenged

It is just over a week to go before the Charter challenge resumes over the Muskrat Falls project in the Supreme Court of Newfoundland and Labrador. For the next several weeks I will be focusing soley on this challenge, so blogging will have to go on hold. However, a few thoughts on what has gone on with the federal and provincial governments in relation to this challenge should be passed along.

Back in December, 2012, during the initial hearing, I was somewhat amazed the provincial government had not submitted one piece of evidence, or argument, to back it's position that the 2007 amendments to the Electrical Power Control Act [EPCA] (brought in by then fearless leader Williams) and the subsequent water management agreement were constitutional. Not one word of the provincial government's argument addressed these two agreements. Think about that for a minute. Here a piece of their key Muskrat Falls legislation is being challenged and not one word. Not one piece of evidence was submitted to back their position. Not one.

We went into the Supreme Court in December expecting to fight a four day battle over this legislation. Although it isn't the whole case, it is 75% of it. There we are in the Supreme Court and the Justice tosses out that portion of the case, because in her estimation the service of the papers to the federal Attorney General was not complete enough. Service is required when a constitutional question is being raised and a law could be struck down. However, it was established from earlier court hearings that a declaratory decision regarding the constitutional status would not be permitted at this time, because that would be a final result and an injunction could not deliver final relief. Here is one question that weighed on me: If a constitutional decision can not be decided during an injunction hearing then why did the federal Attorney General need to be served at all? In any case, it was not allowed.

With a minimum of ten days notice required to serve the feds it appeared my case was dead in the water - pardon the pun. However, a subsequent challenge to the Judge's impartiality ate up the remainder of the court days and a postponement allowed me to serve the Attorney General - who subsequently decided not to intervene. During a conference call with the Judge and the government/Nalcor/Innu lawyers in May, 2013, it was decided by the Judge to allow the ECPA and water management agreement back in as the feds had been served with everything and declined to intervene. The provincial government's lawyer immediately requested time to submit documents regarding these peices of legislation and the Judge gave them until May 21, 2013 to do so.

That is where my question comes in. It is a troubling one, and one that has been weighing on my mind. Why did the provincial government not enter any argument or documents supporting their position on the EPCA and water management agreement when we went to court the first time - back in December - yet immediately rose to do so when the Judge reversed her decision?

To me it raises the question: Did the provincial government have inside information that the Judge was going to throw that part of my argument out? Sound far fetched? How do you explain the government's inclusion of argument suddenly then when it became clear that the legislation would be included? It seems to me the provincial government must have been liaising with the federal government, and come to the conclusion the feds had not been served properly, so there was no need to file an argument or evidence as it would be thrown out.

That begs the question: Is it right and ethical for the federal government to conspire with a provincial government to thwart a constitutional challenge by a citizen? I use the word thwart because at no time, despite numerous written and oral appeals to do so, did the federal Attorney General comment service was not adequate - or any comment at all. By doing so he caused that part of the argument to be thrown out in the earlier hearing. In fact, it was not until I wrote a personal letter to the Prime Minister, copying in the Attorney General and members of the press, that a response finally came back from the feds saying they would not intervene. I had to formally accuse them of undermining fundamentals of Canadian law, the right to present one's case, before a response came back - it took only two days.

So, it is quite apparent on the face of it that my own federal government, the defenders of the Charter of Rights and all aspects of the Constitution of Canada, were in fact assisting my provincial government in undermining a charter challenge. A charter challenge over the Muskrat Falls project. A project that the federal government signed a loan guarantee for. For people who like to believe there is no greater sanctity than the rights of a Canadian citizen this is troubling. For me this is troubling. Win, lose or draw this is troubling. It speaks to the rot in some ways that we have witnessed in Ottawa lately, but yet this is far more dangerous. Our rights are the one thing that rich and poor share alike. It is what defines us at home and abroad. It defines our values and core beliefs. Yet, apparently, it can be traded in over a hunk of concrete on a river. The charter challenge of Muskrat Falls resumes on June 4,5,6 and longer if necessary.   

Tuesday, May 21, 2013

Lies, Bribes, Harper and Dunderdale - the Evidence

On April 28, 2013, I wrote an article on whether or not the Innu people were bribed to vote for the New Dawn Agreement, which passage was necessary to allow the Muskrat Falls project to proceed.  Since that time the information contained in that post was forwarded to the Prime Minister's Office, the Attorney General of Canada, the head of the RCMP, the Quebec Corruption Commission, the World Bank Corruption Commission, the Swiss federal Police, and both leaders of the federal opposition parties. Yet nothing. It appears very likely that the Innu people were given a financial reward for voting in favour of the New Dawn Agreement, which violates federal laws on corruption and the federal elections act. The local RCMP in Goose Bay were informed of these payments a year ago. Those forwarding the information want a full blown RCMP investigation and forensic audit of both bands, the Innu Nation, and the Innu trusts. Yet nothing has happened.

I have decided to publish the actual minutes of both meetings where the $5000 payment was authorized, and where the children's trust fund was accessed to forward those payments as soon as possible with repayment of the fund coming later from a bank loan.


You probably noticed it was the Innu Nation, the group responsible for conducting the New Dawn Agreement referendum, that mere days after the agreement was approved by referendum wrote a letter to the trust for the $12.5 million payout at $5000 per man, woman, and child. You will also note the Bank of Montreal insisted on being renewed til 2017 as corporate trustee of the children's trust. The motion for the loan was made by Paul Rich, brother-in-law of disgraced former Innu Nation leader and MP Peter Penashue. It's most interesting to note that all the details of the loan had been arranged in advance of the conference call, and would imply the payout had been planned days in advance.


You will notice the urgency of getting that $5000 per person payout to the Innu people. So much urgency that less than 3 weeks after the New Dawn vote the Innu trustees voted to dip into the children's trust fund to get those funds out. It is unclear if such a withdrawal, even on a temporary basis, is even legal and in keeping with the terms of the trust.

You now see the evidence. You see who was involved. You know the time lines. Just a reminder, the New Dawn Agreement vote was held June 30, 2011. This must at a minimum be fully investigated by the RCMP, Elections Canada, Aboriginal Affairs, and a forensic audit conducted by the federal government. Future generations of Innu, and the rest of us in this province, are at least do that minimum of respect.

Saturday, May 18, 2013

Wolves in the Keep

Like two castles the federal Conservatives and the provincial PC's of Newfoundland and Labrador dominated their kingdoms. Their walls were impenetrable. Their moats were deep. From this place of strength they exercised their power at will, and avoided all the nattering of pesky peasants outside their high walls. Their word was law. That was then. This is now.

Like a Shakespearean tragedy the rot within has broken the massive stone walls, and the all too human truth of absolute power corrupting absolutely is open for all to see. Both governments have been guilty of abusing their power in a way not seen before. They have ignored or forgotten the rule that power is to be used, and "if you abuse it you lose it". It's an old saying. It's an old yardstick if you will to restrain the dark side of human nature and ensure an order of proper balance in the exercise of power. When that balance is lost the great unseen hand has a way of restoring it, and often it is not a pretty sight.

Both parties have lost sight of the nature of power. The ability to govern, the moral high ground if you will, is rooted in the ancient notion of the "social contract". The social contract being an informal agreement between the very earliest humans that they would agree to surrender some of their rights to the group in order that they might survive. So in the beginning one or more cavemen would agree to hunt together, to share, to follow a leader, and to protect each other. From there it grew to villages, cities, provinces, countries, ultra national organizations, and eventually some say world government. The contract itself was in the beginning, and has never changed, an agreement between man and the state on how he agrees to be governed. In modern times it has become a written contract commonly referred to as a Constitution.

Remember, the social contract was between a man and the group he agreed to submit certain rights to - his government in the modern context. Herein lies the poison in the wine if you will: corporations were never a part of the social contract. People never agreed to submit any rights to corporations. Corporations, therefore, never had any right to exercise power in the affairs and lives of people. However, and we have seen it all over the world, corporations have decided to take that power by controlling the process that establishes who shall govern. In a sense, they have added themselves to the social contract. This very simple concept has led to where the world is today, and locally to where our nation and province are today.

On the provincial level we have been subjected to such acts as Bill 29 which violate the ancient right of disclosure - the right to be informed. We have witnessed our government  lay off almost a thousand people to save $30 million while giving $90 million to Kruger - in the same budget no less. We have witnessed former premier Danny Williams negotiate offshore royalty deals with oil corporations that included impacts and benefits agreements that personally benefited his offshore companies. We have seen the same ex premier grant massive contracts to SNC Lavalin and then sell his offshore companies to them. Of course he wasn't the only one. Joey Smallwood took a $100,000 loan from the bank of Montreal to buy shares in Brinco which he had hoped would make him rich when the Upper Churchill deal went through. And on it goes. The rights enshrined in the social contract, to be protected and secure for the benefit of all, greedily thrown to the curb.

On the federal level things are no different. The Conservatives have thrown all responsibilities of governing out in the march for control. Rather than debate each bill in Parliament, and defend each bill, they have created omnibus bills which essentially lump many bills into one. There is no scrutiny by the people's representatives allowed. And what are those bills? Most are corporate in nature. The bill to remove federal protection of almost all Canada's water is a big one. Bills to streamline, read water down, environmental laws that restrain corporations from exercising unimpeded activity. Essentially laws that were put in place to protect the land for the benefit of the people. So corporately controlled has their agenda become, so far have they strayed from the social contract, that they have alienated themselves from the people.

This week we did not witness Senator Duffy fall from grace. Or Senator Wallin. Or Nigel Wright. Etc. What we really witnessed was the exposure of corporate power and all its ugliness. Senator Duffy, appointed by Harper, was not conducting himself any differently than any other Senator in the game. They are named to the Senate to be professional back room types if you will. When Duffy was warned by Senator Tkachuck that he was about to be exposed for using the people's funds for improperly subsidizing his way of life, a deal was reached with Harper's Chief of Staff Nigel Wright to pay off the $90,000 before the report was released. The plan was to nullify the issue before it was publicly exposed, and thereby protect Duffy from serious damage. Duffy after all was a chief fund raiser and promoter for the Conservatives. The plan failed when the "loan" was exposed and Wright became fully exposed. The dangerous part of this equation was Wright.

To understand who Wright is you can check out this Globe and Mail story  Essentially, Wright is a corporate guy, loaned from Onex corporation for two years (which were up six months ago) to run the Prime Minister's Office - in reality the Government of Canada. He is responsible for many of the actions of this government and it's decidedly corporate flavour. He is not a man of the people. He does not embody any of the principles and rights of the social contract. He is a man of the order, the corporate order that is. Like so many things, and like so many countries, he is there to establish their interests - whether they are those of the people or not. Since Wright became exposed, and the pressure from the people mounted, Senator Duffy was quickly thrown from the party. Then Senator Wallin quickly followed. Naked power, corporate power that is, was exposed. The ability to, in a premeditated stroke, cover up the transgressions of the privileged. The ones we agreed to give up certain rights to for their promise to look after and protect the rest of us. In one brief moment we saw it all. Now Harper is trying to save Wright. Just like he tried to save Penashue in the other recent, premeditated attempt to cover up corporate donations.

It is an ugly truth in all. The order of civilization is broken - terminally broken. Those with the great trust have failed their great responsibilities. It is evident throughout the world we live in today. From civil wars, to oil wars we see it everywhere around us. And while those wars were benefiting us we chose to go along with those social contract rights being violated. Now, with our world monetary system in near failure, with our personal and governmental debts reaching the maximum sustainable, we gaze into an uncertain future. We look toward the corporations for accountability. We look to the governments for solutions. In reality, they have become one and the same. Our earliest ancestors gathered together for protection from the wolves. Now the wolves are the ones we turn to for protection. Therein lies the not so good news.

Dedicated to my friend Jason.

Saturday, May 11, 2013

Tipping Point - the End Game

It's been just over two years since Williams left office and Dunderdale was sworn in. It was the culmination of many political deals to pave the way for the Lower Churchill project. There was the deal with the Innu of Labrador. There was the deal with Harper. There was the deal with Nova Scotia Premier Dexter. There was the deal with Emera. There was the deal within the PC Party caucus. There was the deal with the corporate community of the province (less than ten families). There was even a deal with the Liberals. So many political and business deals were made over one project that one truly must tip the hat to the old chess master Williams - in that regard.

However, as the saying goes: "The plan doesn't survive first contact with the enemy". It's an old military saying, but it works. Like a well rehearsed play the show unfolded. Williams crafted the necessary legislation to force Hydro Quebec to share the Upper Churchill. He created Nalcor as the vehicle to achieve the project. The one thing he could not do was finance it alone. Since 2006 he pleaded with Harper for a loan guarantee. Harper put him off. Harper is aligned with Enbridge which has a strategic alliance with Hydro Quebec. Why would Harper help Williams and thereby Nalcor? Williams carried on. He eventually reached a deal with the Innu - the New Dawn Agreement. Peter Penashue, then at the Innu Nation, represented the Innu. Still, it took almost three years to take New Dawn from the drawing board to the place where it could be executed, and free the government to proceed with the Lower Churchill.

In those three years Williams set the stage by amending the Electrical Power Control Act, which would force Hydro Quebec to submit to the province on the operations and sales of the Upper Churchill. He also became increasingly desperate for a loan guarantee - culminating in the "ABC Campaign". In the interim he also sold his two offshore companies to SNC Lavalin for an undisclosed sum. SNC Lavalin was then given the Lower Churchill contract. By late 2010 Williams had all his ducks in a row. The agreement with Harper that in exchange for the loan guarantee he would leave politics. And so he did after carefully orchestrating a backroom deal with his cabinet to put Dunderdale in charge. She became the Premier run and controlled by her own Cabinet - rather than the other way around. He even contrived a falling out with Dunderdale, to reinforce his deal, claiming to be deprived of cell numbers for cabinet ministers that had not changed since he was premier. All very contrived, and all pulling on the ores in the same direction.

Then something happened. Actually several things happened. Firstly, and perhaps most importantly, the United States created a natural gas revolution. They built gas fired electrical plants in places like New York where Williams and company had dreamed of selling power. Hydro power was suddenly becoming obsolete. Also, the resistance started. In Newfoundland and Labrador the resistance was started by a handfull of political bloggers. They were/are Peter Whittle, Ed Hollet, Wally Maclean and myself. Dunderdale became so frustrated with the bloggers that she singled them out in her year end interview as "nay-sayers". The war within went viral. The bloggers were determined. They drove the discussion, the opposition, and some would say a political revolution resulted. Citizens, and bloggers, began consistently calling the daily radio shows with concerns about Muskrat Falls. Williams went public denouncing them and all who attacked his project for "no good reason". Dunderdale followed. So did the cabinet. It was a war of hearts and minds.

Yet, the project plodded along. Even before Muskrat falls was officially sanctioned in the House of Assembly, Nalcor was busy excavating the site - once the Innu had signed the three New Dawn Agreements. Harper came fourth with the promised loan guarantee, although it was in the form of a memorandum of understanding and had many stipulations. Williams promoted mining in Labrador, and his own little city on the Island - all of which would need the new power.  Even giants of industry like Brian Mulroney appeared on the scene. He publicly espoused the need for "environmentally friendly policies". He also joined the board of directors of Dean MacDonald's company - a close ally of Williams.

Then things started to go bad. The backroom deal to have Dean MacDonald take over the provincial Liberal Party, and then replace the battered Dunderdale in power, collapsed and he pulled out. The deal to include Penashue in the federal Cabinet fell apart as he was exposed, and forced to resign. Meanwhile Yvonne Jones kept to her deal and immediately pounced on the federal Liberal nomination to replace Penashue, leaving previous Nunatukavut MP Todd Russell justifiably furious.
Things started getting very interesting though when an email was sent to Hydro Quebec.

As you may or may not know, I have filed a lawsuit against the Government of Newfoundland and Labrador, Innu Nation, and Nalcor over the constitutionality of the New Dawn vote and the water management agreement/power control act amendments. On January 18, 2013 I sent an email to Hydro Quebec informing them of the nature of my lawsuit, and requesting they advise if they wish to intervene. Coincidentally, two hours later, the same person I was speaking with held a press conference. The story went essentially like this:

 "Quebec’s Crown-owned utility, which declined comment Thursday on the consultant’s report, changed its tune the following day.
'Normally we don’t comment on such third-party reports,' Ariane Connor, a Hydro-Quebec spokeswoman, said in an interview.
“But having had a chance to look it over quickly over the last 24 hours, we’re very surprised by the analysis and the conclusions of the report.'
Connor said the utility may want to be part of the regulatory hearing to “present our view” because it wasn’t consulted about the study."

What does that mean? It means Hydro Quebec's ambush was tripped. Hydro Quebec has always known that Williams' Electrical Power Control Act amendments forcing Hydro Quebec to share the Upper Churchill were unconstitutional. The law regarding this issue was decided in the 1984 Reversion Act review by the Supreme Court of Canada. However, like any good soldier, they were lying there waiting for Williams and company to deliver us to them. After all, without a valid water management agreement both of the Lower Churchill dams would only produce 20% firm power - as per Nalcor's evidence given at the Public Utility Board hearing. With Muskrat Falls built, and unable to operate, Newfoundland and Labrador would be at the mercy of Quebec. We would be unable to defend ourselves having completely maxed our borrowing on the construction of the dam, and the terms of the loan guarantee would require the surrender of these assets if the province were to default. All nice and cozy for Harper, Hydro Quebec and company. What they needed for this plan to succeed was silence.

That was the tipping point. After years of saying almost nothing, Hydro Quebec suddenly had a big interest in dumping their glut of power in Nova Scotia. They are scheduled to speak at the hearings in Nova Scotia now. Brian Mulroney's good friend Pierre Karl PĂ©ladeau just stepped down as President and CEO of Quebecor to become non-executive chairman of Hydro Quebec - not pulling a salary if that rings any bells. Jim Prentice, former Conservative cabinet minister, and vocal proponent of the Muskrat Falls deal, had this to say just days ago:

“It essentially means Canadian hydroelectricity, although we see it as renewable — the ultimate renewable energy — it doesn’t qualify as renewable energy in those states, because the renewable portfolio standard doesn’t recognize it. So basically you have a state-level interference with the market, and my point is if the North American market is going to work efficiently, we need the same standards on both sides of the Canada-U.S. border, and these renewable portfolio standards get in the way of our ability to sell Canadian hydro.”
This comes as the United States moves closer towards energy independence, he said.
“If you look at the numbers in terms of energy production in the United States and imports and exports (between) Canada and the U.S., it’s increasingly clear that the U.S. is moving towards energy independence.”
Combining the resources of Mexico, Canada and the U.S., Prentice predicts those nations will be energy independent by 2020. He said it becomes all the more important to keep the marketplace open and free from what he labels “sub-national impediments,” such as those state laws.

Asked about the implications for such standards with respect to Muskrat Falls, Prentice said they do not help.
“Well, it’s not helpful, and we need to make sure that across the United States, Canadian hydroelectricity is recognized as a renewable energy that is good for consumers.”

The deal is coming apart, and Williams and company are watching as the ground shifts beneath their feet. Hydro Quebec's massive debt grew $10 billion from just 5 years ago to a whopping $ 43.5 billion. That's over three times the gross debt of this province. It has mass surpluses of power it can not sell - - last I heard it was 5000 MW, almost the entire production of the Upper Churchill. Hydro Quebec now realizes it must abandon the idea of laying the trap for Williams and company, and instead move to secure the Nova Scotia market directly for it's own survival. This is what it is in the process of doing. The only remaining question is: At what point does the Newfoundland and Labrador government realize and accept the tipping point has been reached and the jig is up? Here is my suggestion: Be prepared to write off the money already spent and stop the bleeding here; send the Electrical Power Control Act amendments and the water management agreement to the Supreme Court of Canada for review to determine it's constitutionality; accept the political consequences; reimburse expenses. This is the end game. We are in it now.