The Death of the PC Empire in Newfoundland and Labrador

Seven by-elections later, without success, the ruling Tories in Newfoundland and Labrador resemble the old Iraq war slogan "shock and awe". Last night it was clearly visible on the faces of the defeated candidates and the cabinet ministers that campaigned on their behalf. It's not that they don't understand what's happening to them, it's just that they don't understand what happened to them.

For the PCs all roads lead to Muskrat Falls. After previously sacred Danny Williams got his Muskrat Falls deal he resigned - mere weeks later. That shattered the "God" image so carefully crafted. The population was left unstable as if it had lost its father, and its foundation had been shaken. Such is the danger of iron man rule - all men are mortal.

Then there was the viscous battle on the airwaves and in the social media over the wisdom and value of the project. The PCs hired expensive communication firms, and stalled requests for information on the project. When that strategy appeared to crack the Tories turned to their normal practice: legislation. They created Bill 29 to amend the Access to Information Act.  Typically that would be shuffled off as no big deal. It's not as if the public are filing access requests. However, the press, smelling a rat, went ballistic. Muskrat Falls opponents and the opposition parties grabbed onto the issue, backed by the press, and even forced a multi-day filibuster. More importantly the image was sealed. The PCs couldn't sell the bill as just normal legislation, and the public began seeing it as an act to cover-up Muskrat Falls dealings. That was when the trust was violated.

Thereafter the PCs, generally speaking, lost public trust in their word, but not necessarily in the project. Newly appointed leader Dunderdale and her team, which included Williams' brother, decided to attack the Muskrat Falls opponents rather than address the core public trust issue. She termed opponents as "nay-sayers, known critics of the government" etc... Her arrogance, and that of her colleagues, was so palpable the public became repulsed. When the PUB refused to give the project an unfettered endorsement, the PCs went crazy with indignation - including Williams who derided not just opponents, but also the PUB. It was war in a way. The problem for the PCs was their guns were focused in the wrong direction. As distrust grew, the people began taking opponents accusations seriously, and so an attack on the assertions of proponents began to be an attack on the people themselves.

It always was, and remained a battle for hearts and minds. The PCs refusal to alter their strategy of arrogantly attacking those opposed to their vision, and instead addressing the core issue of trust, resulted in a solidification of the view that "the PCs were out of touch". A natural result when a government can't see the core issue and instead shoots the messenger. So great was the vitriol that Dunderdale became almost detested by the public. The PC caucus decided their poll numbers were bad enough to fire Dunderdale, and they did just that. However, by this time, the public considered them, rightly so, as all infected by the same affliction - arrogance.

As if to emphasize the point the PCs, led on the outskirts by Williams, attacked leadership candidate Bill Barry (a reformist-type candidate) and coronated a pro-Muskrat Falls businessman - Frank Coleman. At one time an endorsement by Williams would have guaranteed a candidate acceptance among the public, but this time it back fired. The endorsement hung around Coleman's head like a guillotine, and in the end the blade came down. Coleman's company, HVP, was quietly released from a money losing government contract in Labrador, and the $18 million dollar performance bonds that were meant to guarantee it. After months of agony, and accusations "Danny's Man" was simply implementing "Danny's Will", Coleman resigned before he was even sworn in.

That led to another leadership race, after the first one was quietly swept under the carpet like it never happened, and Paul Davis was anointed the new PC leader. Davis immediately came under scrutiny for political ties to his old employer, the RNC provincial police. At the core of the issue were campaign donations that were banned by the RNC Act. (to this day the 2013 Political Contribution List has not been released publicly - although it has been ready for 7 months I'm aware of). Furthermore, an apparent political deal reached between himself and perennial political opportunist Steve Kent still hung in the air as Kent was appointed Deputy Premier. The public smelled the same-old Tory contempt for democracy that had its roots in the Muskrat Falls battles, and Davis was labelled. Then came consummation of another apparent political deal when Senator Manning's (a Davis leadership supporter)  niece was appointed to cabinet as an unelected Justice Minister.

Every action has a reaction. Every move the PCs made over the last four years did the exact opposite of what they intended. They reinforced the perception created by the Muskrat Falls battles that secrecy and power were the poison of choice for the PCs. They never adjusted from having a front man that could sell ice to Eskimos. They never saw the effect of the 5th column that battled them at every turn over Muskrat Falls. They never realized that the core issues with Muskrat Falls would stick and become the core issues against the government. There are none so blind as those that refuse to see. So it went with the PCs. All their roads led to Muskrat Falls.

The New Dawn Agreement-Hidden in plain sight

On the 26th day of September, 2008, almost four years to the day, the New Dawn Agreement was signed between the government of Newfoundland and Labrador, Nalcor, and the Innu Nation. It was meant to satisfy the constitutional requirement of consultation with aboriginal people when their lands are affected by proposed developments. For good measure, this agreement included compensation for the Upper Churchill development, which they were not consulted on in the 1960s, and an Impacts and Benefit Agreement (IBA) to compensate for the proposed Lower Churchill Development. On the face of it, and certainly in the reporting of it, the New Dawn Agreement is a long bit of long overdue justice for the Innu people, but is that all it is?


I began studying the Agreement in an effort to find clues on the financing of Muskrat Falls. The question in my mind was:
Is there any place in the last 5 years that the government of this province would have to expose itself, throw some cards on the table as it were, with regard to its plans on financing Muskrat Falls. The New Dawn Agreement fell into that category. If the Agreement's purpose was to lay out compensation for the Lower Churchill Development, then surely it must also include factors restricting that compensation. Here is what I found:


" (v) After Debt Net Cashflow is to be determined as follows, with all elements of the calculation related to the generation comonent of the Project and determined using Canadian Generally Accepted Accounting Principles ("GAAP"):

(1) Gross revenues, less transmission costs for market access including any applicable open access
transmission tarrifs and related upgrades; minus
(2) all operational and maintenance expenses and related charges, excluding depreciation and
amoratization on capital assets; minus
(3) all debt service costs related to the Project with respect to financing in place at First Commercial
Power, both Project and equity related, including but not limited to principal repayments, interest
guarantee fees, issuance fees and all other financing fees tat may be charged from time to time; minus
(4) All debt service costs related to borrowings subsequent to that in place at First Commercial Power,
both Project and equity related, including but not limited to principle repayments, interest, guarantee
fees issuance fees, and other financing fees that may be charged from time to time; minus
(5) refinancing fees and related costs; miuns
(6) preferred dividends (related to financing) incurred during the year; minus
(7) income and other taxes paid and payable during the year; minus
(8) capital expenditures incurred during the year; minus
(9) an allowance for decommissioning costs.


The " (6) preferred dividends (related to financing)" caught my attention. Ed Martin, CEO of Nalcor, has stated publicly that, in regard to traditional financing for Muskrat Falls:
"No question about it, and as I mentioned before, we have the lead arranger in place and this is all bid stuff. So whoever comes forward with financing we're going to use the cheapest financing."


Fair enough. Sounds reasonable and prudent. Just one problem. Preferred dividends are paid out to investers based on the issuing of preferred shares by that corporation. In other words, its not bid stuff handled by a neutral third party arranger. Its a deliberate act by a corporation to give up some amount of ownership to other interests (almost always private) in exchange for raising money. Preferred dividends are normally fixed and entitle the holder of those shares first payment before common shareholders on dividends ( which is why preferred dividends are included in the New Dawn Agreement to be deducted before the Innu get their share) In the case of Nalcor that would constitute a form of privitization.

Which brings me to the other part of the New Dawn Agreement that directly ties into this strategy:

" (c) In the event the parent company of CFLCO sells any of its common shares the Innu Nation shall be entitled to receive three percent (3%) of the proceeds received from the sale of those shares...
(d) If CFLCO issues a new class of shares with the purpose of diluting the value of the the dividend on common shares referred to in section 2(b), above, the Innu Nation's share of dividends is to be calculated as if the new class of shares had not been issued."
This section deals with the effects of selling or issuing new shares in CFLCO for the purpose of outlining how that would effect the Innu's bottom line on the Upper Churchill portion of the deal. However, it still points to the fact Nalcor is envisioning a sale of shares that would dilute its control over CFLCO, which is a privitization.

I asked Nalcor for a comment on this story, and they sent me the following response:
" This provision allowed Nalcor or its subsidiaries flexibility to issue preferred shares should that way of financing prove feasible and appropriate... There are no specific plans to do so at present. This is not a privitization or a royalty trust."
When I followed up with a question asking who they would sell these shares to if it proved feasible and appropriate they would not answer.

It seems clear that Nalcor is contemplating a preferred share issuance in CFLCO to in part fund the Muskrat Falls project. Preferred shares can be utilized on their own, or as part of a Royalty Trust. Nalcor, as a crown corporation, has shown us a part of its hand. We haven't seen the whole hand as yet. We don't know what rules the government has placed on Nalcor and the lead arranger. Is there a required Newfoundland and Labrador component? Ed Martin has already said it must be the cheapest form of financing. Royalty Trusts and preferred shares are normally cheaper, especially in the long term, than traditional bank financing.

Will the government attempt to shield the details of financing Muskrat Falls with Bill 29? In regard to royalties it now states:
" Section 27 of the Act is repealed and the following substituted:
(2) The head of a public body shall refuse to disclose to an applicant information that was obtained on a tax return, gathered for the purpose of determining tax liability or collecting a tax, or royalty information submitted on royalty returns, except where the information is non-identifying aggregate royalty information."

In other words, Nalcor is a public body, and it is forbidden by law to disclose royalty information submitted on royalty returns. Thanks to the sudden and determined passing of Bill 29 by the provincial government.

We live in a time of secrecy in Newfoundland and Labrador. A secrecy designed to protect the interests of certain people and companies involved in the Muskrat Falls project. This little bit was hidden in plain sight.