March 6, 2018
HOUSE OF ASSEMBLY PROCEEDINGS
Vol. XLVIII No. 49
The
House met at 1:30 p.m.
MR. SPEAKER (Trimper):
Order, please!
Admit
strangers.
Today in
the public gallery, I would like to welcome the mayor and council for Port
Blandford. We have with us the mayor, Chad Holloway; Wince Peddle; Navanda
Harris; and Cyril Bennett.
A very
big welcome to you, folks.
SOME HON. MEMBERS:
Hear, hear!
Statements by
Members
MR. SPEAKER:
For Members' statements today
we will hear from the Members for the Districts of Topsail - Paradise, Exploits,
Torngat Mountains, Stephenville - Port au Port and Baie Verte - Green Bay.
The hon.
the Member for Topsail - Paradise.
SOME HON. MEMBERS:
Hear, hear!
MR. P. DAVIS:
Thank you, Mr. Speaker.
Mr.
Speaker, when the Paradise Warriors Peewee B hockey team saw an opportunity to
help a fellow warrior, they didn't hesitate to step up. The Paradise Warriors
Peewee B hockey team was recently selected as a semi-finalist for the Chevrolet
Canada Good Deeds Cup. The Good Deeds Cup is a national initiative that
encourages peewee division hockey players to do good deeds in their community
and then submit a short video that highlight their endeavours.
This
past November, the team became aware of their fellow Paradise Warrior, Charlie
Druken, who for three years has been battling a disease which is difficult to
diagnose, and had to travel to Toronto Sick Kids Hospital for special medical
testing.
The
Paradise Peewee B team did not hesitate to step up and to give back to help
their fellow Warrior. The team hosted a novice hockey tournament, held a 50/50
draw to raise funds to help offset travel costs. By working together, they were
able to raise just over $1,600 for the family. But the good news doesn't stop
there. As a result of being selected as a semi-finalist, Chevrolet Canada will
donate $2,000 to a charity chosen by the team.
Mr.
Speaker, I congratulate the Peewee B Warriors for their compassion towards their
teammate and wish Charlie a speedy recovery.
Thank
you.
SOME HON. MEMBERS:
Hear, hear!
MR. SPEAKER:
The hon. the Member for the
District of Exploits.
MR. DEAN:
Thank you, Mr. Speaker.
Mr.
Speaker, I rise today to pay tribute to Mr. John Antle, principal of Exploits
Valley Intermediate in Grand Falls-Windsor, who is one of 40 educators from
across the country being recognized as Canada's Outstanding Principals of 2018.
Mr.
Antle has worked in the education system for 20 years, with the last nine being
at Exploits Valley Intermediate. John resides in my District of Exploits and EVI
is in the neighbouring district of Minister Al Hawkins of
Grand Falls-Windsor - Buchans.
Mr. Antle's outstanding leadership has facilitated the
implementation of the Positive Behavioural Intervention Strategies, which
rewards students on a weekly, monthly and yearly basis. Academic and behavioural
achievement is celebrated at school assemblies with positive student behaviour
being acknowledged every Friday with ‘Gotchas.'
Since the PBIS and also a new web-based behaviour
management system, which recognizes student contribution to a safe and care
school environment, was put into practice, academic achievement and student
well-being has improved significantly. Suspensions at the school have been
reduced from 147 per year before the new program, to three in 2016-2017. John
also works to maintain the well-being of his students through coaching,
breakfast programs and adding additional co-curricular activities.
Of course, Mr. Antle shares credit for this
accomplishment with his administrative and teaching team at EVI. He was
nominated for the award by the vice-principal, Darren Woolridge.
I would ask all hon. Members to join me in
congratulating Mr. John Antle and his staff and students at Exploits Valley
Intermediate.
SOME HON. MEMBERS:
Hear, hear!
MR.
SPEAKER:
The
hon. the Member for Torngat Mountains.
MR.
EDMUNDS:
Mr.
Speaker, I rise today to recognize a very special person from my district. Joan
Dicker has spent 38 years teaching students kindergarten and Inuktitut at Jens
Haven Memorial School in Nain.
In addition to a busy and committed career as a
teacher, Joan has played a huge role in volunteering for special and annual
events in her home community of Nain.
Preserving the Inuktitut language is important to Joan
because she believes language is everything in her community; its people, the
culture and the traditions which she helps keep alive by ensuring that Inuktitut
continues to be taught.
Joan is featured in advertising for the Newfoundland
and Labrador Teachers' Association's “Teachers Change Lives Every Day” campaign.
Or, as Joan would say: Ilinniatitsijet Inosinik Asiangu Itsisot!
The campaign video shows the long-lasting impact that Joan
has had on people in the community. Her students have gone on to create programs
to preserve, promote and protect Inuktitut. They feel the need to give back to
the community in the same way that Joan has.
I ask all Members to join me in saying: Vakummek, and
congratulating Mrs. Joan Dicker on her illustrious career as a home-grown
educator.
SOME HON. MEMBERS:
Hear, hear!
MR. SPEAKER: The
hon. the Member for Stephenville - Port au Port.
MR. FINN: Mr.
Speaker, this past December I had the great honour of addressing graduates of
Piccadilly Central High at their cap and gown ceremony. Multiple awards were
presented that evening for top academic marks in various subject matters and a
number of scholarships followed as well.
Cole Tallack, the son of Morgan and Nadine Tallack of Cape
St. George, stood out amongst the recipients. He received top marks in English,
chemistry and world geography and was subsequently named the Top Academic
student. This humble young man was also the recipient of the Centenary of
Responsible Government Scholarship, the Memorial University scholarship, the
Town of Cape St. George scholarship and the Port au Port Economic Development
scholarship for a total value of $3,750.
Cole is currently enrolled at Memorial's Grenfell campus in
Corner Brook, and while he is taking general courses this semester, he has told
me he has a keen interest in the field of environmental engineering.
I ask all hon. Members to join me in congratulating Cole
Tallack on his academic accomplishments and wish him every success as he
completes his post-secondary studies.
Thank you.
SOME HON. MEMBERS:
Hear, hear!
MR. SPEAKER: The
hon. the Member for Baie Verte - Green Bay.
MR. WARR: Mr.
Speaker, seven schools participated in the team event at the 2018 School Sports
NL Varsity Table Tennis Provincials hosted by Roncalli Central High, Avondale.
Teams were from Avondale, Hare Bay, Nain, Lethbridge, English Harbour West, St.
Bride's and Pilley's Island. Four schools also joined the weekend to participate
in the individual events. Teams were from Sheshatshiu, Bay d'Espoir, Port Rexton
and Clarenville.
Mr. Speaker, I want to congratulate the Dorset Collegiate
Huskies, from my district, for their outstanding play, winning 20 straight
matches and capturing the championship banner. This is the fourth straight year
that this small school from Pilley's Island has won the provincials.
Congratulations to individual event winners. Girls Singles:
Brianna Warren, gold; Boys Singles: Ty Winsor, gold; Girls Doubles: Brianna and
Sarah Warren, gold; Boys Doubles: Riley Vincent and Devin Roberts, bronze; Mixed
Doubles: Ty Winsor and Haley Elliott, gold.
Special accolades to level Ill student, Brianna Warren, a
most decorated table tennis player at the local, regional, provincial and
Atlantic levels, as this represented her last opportunity to participate at the
high school level.
A special thank you to teacher/coach Mark Warren and
assistant coach Brandon
Roberts for all your support.
I ask
all hon. Members to help me congratulate the Dorset Huskies.
Thank
you, Mr. Speaker.
SOME HON. MEMBERS:
Hear, hear!
MR. SPEAKER:
Statements by Ministers.
Statements by
Ministers
MR. SPEAKER:
The hon. the Minister of
Service NL.
MS. GAMBIN-WALSH:
Mr. Speaker, March is Fraud
Prevention Month in Newfoundland and Labrador, and this year marks the 14th
anniversary in Canada.
The
month-long crime prevention initiative is aimed at educating and informing
consumers and communities on how to recognize, report and stop fraud. It unites
more than 80 law enforcement agencies with public and private sector
organizations across the country in efforts to raise awareness and protect
Canadians from fraud.
This
year's theme is Recognize it. Report it. Stop it. and speaks to the need for all
of us to be vigilant when it comes to fraudulent activities and report any
activity that does not appear to be legitimate. In 2017, our government
implemented a Fraud Management Policy which provides guidance to employees on
reporting of fraud and processes for management to follow when they become aware
of fraudulent activity.
During
Fraud Prevention Month, and every other month of the year, our government is
encouraging consumers to take time to learn about ways to protect themselves
from fraud. Anyone wishing to have more information on consumer protection can
contact the Consumer Affairs Division in my department, or email
consumeraffairs@gov.nl.ca.
Mr.
Speaker, the cost of fraud can involve more than financial losses and may also
result in the loss of property and personal security for victims. We remain
committed to raising awareness about fraud and providing consumers with the
tools and information they need to identify and avoid fraudulent activity.
Thank
you, Mr. Speaker.
SOME HON. MEMBERS:
Hear, hear!
MR. SPEAKER:
The hon. the Member for
Cape St. Francis.
MR.
K. PARSONS:
Thank you very much, Mr. Speaker.
I want to thank the minister for an advance copy of her
statement. Mr. Speaker, we also are pleased to recognize March as Fraud
Prevention Month. Unfortunately, fraud is the sad reality of society. There are
a lot of scams and fraudsters out there looking to take advantage of people,
either through stealing their money or even their identities. We have to ensure
that people are aware of the potential to be scammed and everyone needs to do
their best to make sure we're all protected.
Also, it's very important that any examples of fraud be
reported, that everyone becomes aware so that the headache and suffering caused
by these activities are reduced. We can all do our part to protect ourselves and
raise awareness to others of this important issue.
Thank you very much.
SOME HON. MEMBERS:
Hear, hear!
MR.
SPEAKER:
The
hon. the Leader of the Third Party.
MS.
MICHAEL:
Thank you very much, Mr. Speaker.
I, too,
thank the minister for the advance copy of her statement. This is an extremely
important issue. I join the minister in commending the efforts of the many
individuals and organizations involved in fraud prevention initiatives this
March and year-round. People's lives are affected by this issue.
In an
increasingly online world, it is important to increase fraud prevention literacy
so that people feel empowered to recognize whether what they see online is
authentic and defend against a growing number of online scams.
Thank
you very much, Mr. Speaker.
MR. SPEAKER:
Further statements by
ministers?
The hon.
the Minister of Health and Community Services.
MR. HAGGIE:
Thank you, Mr. Speaker.
Our
government is seeking input from residents throughout the province to help
inform the drafting of new public health legislation.
Current
legislation is outdated, with some sections not having been updated in more than
50 years. Mr. Speaker, the goal is to develop a new, more modern piece of
legislation that is aligned with recent best practices in public and population
health from across the country.
I
encourage everyone to take part in the consultation process. The deadline for
response is Monday, March 19. People wanting to participate can visit
engagenl.ca.
Once an account is created, they will be able to participate in any future
consultations conducted by the provincial government. Other ways to participate
include providing written submissions through regular mail or by obtaining a
hard copy of the online questionnaire online by calling 729-0724. Emailed
submissions can also be sent to
healthinfo@gov.nl.ca.
The
provincial government will also hold a targeted stakeholder meeting later this
month. Invitations to that meeting will be sent this week.
We have
an opportunity to develop a comprehensive piece of very important provincial
legislation. I am very interested to hear people's views on public health and
what they would like to see as part of the new legislation. I look forward to
its introduction in the House of Assembly this spring.
Thank
you, Mr. Speaker.
SOME HON. MEMBERS:
Hear, hear!
MR. SPEAKER:
The hon. the Member for
Conception Bay East - Bell Island.
MR. BRAZIL:
Thank you, Mr. Speaker.
I thank
the minister for an advance copy of his statement. It's encouraging to hear that
the government says it's open to input from residents of the province. Health
care is perhaps the single most important issue in this province that affects
every single individual from birth to death, and everyone should be engaged.
With any
legislation, it is created with good intentions and is prepared to deal with
issues and circumstances relevant to a certain time period. As time passes,
legislation needs to be updated and made relevant for the time in which we live.
Legislation, in most cases, is a living document which evolves over time.
I
encourage citizens to participate; however, I am concerned that the process is
rather restrictive with only written submissions and a limited targeted
stakeholder meeting. There seems to be a lack of face-to-face opportunity for
citizens to be engaged and participate. We need to make certain that the process
is as open as possible so we can get input that we seek that will create the
legislation we need.
I look
forward to the government adopting ideas from the general public and
incorporating it into important pieces of legislation that would impact us all.
Thank
you, Mr. Speaker.
MR. SPEAKER:
The hon. the Leader of the
Third Party.
MS. MICHAEL:
Thank you very much, Mr.
Speaker.
I, too,
thank the minister for the advance copy of his statement. I'm delighted to see
that our public health legislation is being updated with an eye to best
practices across the country. In terms of the consultations, I see some
limitations. I would suggest an option be available where the questionnaire and
the booklet are very accessible to those who don't want to register to form a
portal.
I also
believe there should be multiple stakeholder meetings, some with a diverse
group, others with single groups of professionals and of the public. I think
this would ensure better consultation in the end.
Thank
you, Mr. Speaker.
MR. SPEAKER:
Further statements by
ministers?
Oral
Questions.
Oral Questions
MR. SPEAKER:
The hon. the Leader of the
Official Opposition.
MR. P. DAVIS:
Thank you, Mr. Speaker.
Mr.
Speaker, a $400,000 grant awarded to a company owned by the Premier to develop a
housing project was awarded in July 2016, eight months after the Premier and the
Liberals formed government. The Premier disclosed that he had his hands on the
process by suspending all progress until his holding company was established and
the blind trust was established.
So I
asked the Premier: When was this conflict of interest in awarding $400,000 to
your company raised with you as the Premier?
MR. SPEAKER:
The hon. the Premier.
PREMIER BALL:
Thank you, Mr. Speaker.
As you
know, this is a loan, still exists as a loan, as has been mentioned before. It
was a merit-based decision that was made by the former premier of the province,
who is now the Leader of the Opposition. It was his government that actually
conditionally approved that application on a number of criteria options.
Mr.
Speaker, I was not involved in any of the construction, not involved with NLHC
or nothing. Everything was proactively disclosed from the shareholder's point of
view. When I became Premier of the province, I suspended this so we could put in
place, to make sure, put belts and braces in place that there was no conflict at
all for me as a shareholder. All of which there was a transition into a blind
trust. This was put in place to make sure there was no conflict before any money
would have flowed.
SOME HON. MEMBERS:
Hear, hear!
MR. SPEAKER:
The hon. the Leader of the
Official Opposition.
MR. P. DAVIS:
Thank you, Mr. Speaker.
Well, to
correct the Premier, it was actually a conditional approval and a conditional
process. Conditional meeting the conditions of the contract. It was a forgivable
loan. And once a loan is forgiven, then it's a grant. So it's going to be a
grant, Mr. Speaker. The Premier suspended the progress for this $400,000 grant.
The concern was flagged and raised with the Premier, and that's why he put
things on hold. So the Premier said he saw the conflict of interest opinion from
the Commissioner for Legislative Standards.
Premier:
Will you table that opinion today?
MR. SPEAKER:
The hon. the Premier.
PREMIER BALL:
Thank you, Mr. Speaker.
As I
said, from start to finish here we've now given this to the Commissioner for
Legislative Standards. It was indeed a conditional approval based on certain
criteria.
For the
Member opposite to suggest that this is forgiven, it is wrong. He knows it's
wrong. It was his government that conditionally approved this.
As a
matter of fact, that loan still exists, I would imagine, as I have no
visibility; this is currently within a blind trust. But if the loan exists and
it's for a certain period of time based on criteria, I could not tell you today
where that loan exists because I have no visibility into the blind trust.
The
Member opposite knows exactly what he's talking about. This is with the
Commissioner for Legislative Standards, Mr. Speaker. I've already said that
we'll make that information public once the work is completed.
SOME HON. MEMBERS:
Hear, hear!
MR. SPEAKER:
The Leader of the Official
Opposition.
MR. P. DAVIS:
Thank you, Mr. Speaker.
I'm glad
the Premier just said it was conditionally approved because that's what
happened. The final approval did not happen until he was in office for eight
months.
He, as
the Premier, and his government were the ones who approved this $400,000
forgivable loan which is a grant. It becomes a grant. The Premier should know,
he received one in 2009. He received a $400,000 grant back in 2009. That was the
same process, same rules that happened on this one, Mr. Speaker.
I ask
the Premier: If the conflict of interest opinion was provided from the
Commissioner, why won't you just release it?
MR. SPEAKER:
The hon. the Government House
Leader.
MR. A. PARSONS:
Thank you, Mr. Speaker.
I'm a
bit surprised that we're stood up here again this week answering these same
questions after the Premier answered them on multiple occasions last week.
I think
it needs to be pointed out again to the public that this was a loan. There were
60 groups that received loans, all approved by the Member opposite's minister,
the Member opposite's department, the Member's opposite's government and his
hand-picked CEO of the Newfoundland and Labrador Housing Corporation.
I would
note that the Premier has, again, for the second time, referred this to the
Commissioner for Legislative Standards. I think we have to end off with this.
The Member said in an interview this weekend that John Ottenheimer had concerns
but it's funny, because when you review the file there are none in writing.
Thank
you.
SOME HON. MEMBERS:
Hear, hear!
MR. SPEAKER:
The Leader of the Official
Opposition.
MR. P. DAVIS:
It doesn't mean he didn't
raise them, Mr. Speaker.
Mr.
Speaker, the question was very simple. I suppose maybe what I'm hearing here –
because the Premier is not answering the question if he will release the
opinion; maybe he doesn't have one. If he can correct me, he certainly may.
I ask
the Premier: Was the $400,000 forgivable loan – which becomes a grant once
you've met the conditions, the $400,000 grant – was that actually specifically
discussed and reviewed with the Commissioner for Legislative Standards? Was the
Commissioner aware of the contract requirements? Not the conflict of interest
rules for the House of Assembly, but was the Commissioner aware of the contract
clause that prevents an MHA from benefitting from such a grant?
MR. SPEAKER:
The hon. the Government House
Leader.
MR. A. PARSONS:
Thank you, Mr. Speaker.
The
Premier has answered multiple questions on this. In fact, before this was all
ever in the news, I would point out that the Premier went above and beyond and
actually disclosed all this proactively to the Commissioner for Legislative
Standards. But just to assuage any public concern that there might be, he's done
it again and we await the investigation or review or whatever that's going on,
which I'm sure will turn up nothing.
I would
point out that the Member opposite said that his hand-picked CEO John
Ottenheimer had concerns about this. Now, a review of the file indicates that
Mr. Ottenheimer chose not to disclose anything to anybody in Housing or put
anything in writing. So I ask the Member: When did Mr. Ottenheimer tell you
this?
SOME HON. MEMBERS:
Hear, hear!
MR. SPEAKER:
The hon. the Leader of the
Official Opposition.
MR. P. DAVIS:
Thank you, Mr. Speaker.
I've
never said that Mr. Ottenheimer did tell me this, Mr. Speaker. I never ever said
that.
SOME HON. MEMBERS:
Oh, oh!
MR. SPEAKER:
Order, please!
MR. P. DAVIS:
Thank you, Mr. Speaker.
Now, the
Premier doesn't want to answer any questions on this here today. He answered
one, but now he's putting up someone else, even though it's him who says he had
the conversations with the Commissioner for Legislative Standards but he won't
answer to it.
The 2016
contract that was entered into with the Premier's company has a stipulation that
no provincial MHA shall be admitted to any share or part of any contract,
agreement or commission made pursuant to this agreement or to any benefit
arising therefrom.
I'll ask
the Premier: Will you do the right thing and repay the $400,000 grant or, if you
want to call it, a forgivable loan – will you repay the $400,000 that was
awarded to your company by your government while you were Premier?
MR. SPEAKER:
Order, please!
SOME HON. MEMBERS:
Hear, hear!
MR. SPEAKER:
The hon. the Government House
Leader.
MR. A. PARSONS:
Thank you, Mr. Speaker.
It
appears that the former premier is grasping at straws today. It's funny because
it was his government, the same Conservative –
SOME HON. MEMBERS:
Oh, oh!
MR. SPEAKER:
Order, please!
MR. A. PARSONS:
Oh, must of hit a nerve, Mr.
Speaker.
It's
funny because it was his government and, in fact, him that approved this with
the same conditions that I'm assuming would still apply later on when it was
finally approved and went through the entire vetting process. He chose not to
have any concerns. He never had concerns then. His minister never had concerns.
Mr. Ottenheimer never had concerns.
Again,
I've got to go back to this because it was very clear on
Issues and Answers the weekend that the Member opposite said Mr.
Ottenheimer had concerns. They're not in writing. He didn't tell anyone in the
department. So when did he tell you? Was it at the PC AGM?
Thank
you.
SOME HON. MEMBERS:
Hear, hear!
MR. SPEAKER:
The hon. the Leader of the
Official Opposition.
MR. P. DAVIS:
Thank you, Mr. Speaker.
The
Premier is an elected –
SOME HON. MEMBERS:
Oh, oh!
MR. SPEAKER:
Order, please!
Please
proceed.
MR. P. DAVIS:
Thank you, Mr. Speaker.
The
Premier is an elected Member of the House of Assembly. The Premier will benefit
from this contract, from taxpayers' money that will flow as a result of this
contract signed by his government under his watch as Premier to his company.
It's as simple as that, Mr. Speaker.
I ask
the Premier once again: Will he repay the $400,000 of public money given by his
government to his company while he was Premier?
MR. SPEAKER:
The hon. the Government House
Leader.
MR. A. PARSONS:
Thank you, Mr. Speaker.
Hopefully, the people of the province will have any concerns they have
alleviated by the fact that the Premier now has, on two occasions, brought this
to the attention of the Commissioner for Legislative Standards. He did it the
first time without being asked. He would have done that after the Member
opposite, the former premier, signed this. It was his government that signed it.
In fact, put a big press release out about it. He never had any concerns then.
It would have been all the same terms and conditions that would have applied.
The
Premier has since gone back to the Commissioner and said, look, here it all is,
come back and report to this House. As a statutory Officer of this House, report
back to the House. The Premier has again gone above and beyond to ensure that
nothing wrong was done.
Again,
I'm still concerned because I would like to know what the hand-picked PC CEO of
the Housing Corporation said to the Member opposite.
Thank
you.
MR. SPEAKER:
Order, please!
SOME HON. MEMBERS:
Hear, hear!
MR. SPEAKER:
The hon. the Leader of the
Official Opposition.
MR. P. DAVIS:
Thank you, Mr. Speaker.
So the
Premier doesn't want to answer of these questions today, even though it was the
Premier who said he met with the Commissioner for Legislative Standards.
Last
week, the Premier said that there was no benefit to him. He stood in the House
of Assembly and he said it's no benefit to him, that all of this money was going
into the pockets of his clients, is what he said.
I ask
the Premier: If it's no benefit to you, then if you paid it back, there
shouldn't be any loss to you. I ask the Premier again: Will you repay the
$400,000 of public money that was paid to your company by your government while
you were Premier?
MR. SPEAKER:
The hon. the Premier.
PREMIER BALL:
Thank you, Mr. Speaker.
As I
said last week, the benefit for affordable housing projects, indeed all 60 that
he would have announced that he claimed last week not to know anything about –
it seems this week he knows quite a bit about it. The Member opposite would know
that the benefit from that particular project, and all the 60 that were
announced, it's clearly obvious if you look at the press releases of last year,
or whatever year this was, and the years prior to that, it clearly goes to the
people that live in those units. They get the option and the ability that would
not be afforded to them to live in affordable housing that is reliable.
We
deserve this to our seniors. We deserve them and we look forward to working with
the private sector to make sure that can happen to some of the most vulnerable
in our society.
SOME HON. MEMBERS:
Hear, hear!
MR. SPEAKER:
The hon. the Leader of the
Official Opposition.
MR. P. DAVIS:
Mr. Speaker, I fully agree
with the Premier that it's a good program and having more availability of
affordable rates for housing is a great thing to have, and it's a good program
from that perspective.
However,
the money actually flows to the construction company. Right here in the contract
dated Friday, July 22, it clearly lays out 25 per cent is advanced when the
foundations go in; 25 per cent is advanced when there's substantial or
completion of a rough-in and so on; and the remaining 50 per cent is when it's
substantially completed. So it's tied directly to the construction of an asset
that the Premier owns. The grant flows as a grant towards the construction cost
of an asset the Premier owns.
The
benefit is to the Premier's company. Will you pay it back, Premier?
MR. SPEAKER:
The hon. the Premier.
PREMIER BALL:
Thank you, Mr. Speaker.
We
should never let a good story get in the way of the facts. We should never allow
that to happen, Mr. Speaker. The Member opposite has a way of just twisting
information that he is really not overly concerned about the facts.
What I
said is after the election in 2015, putting in place a blind trust, I went to
the Commissioner for Legislative Standards before – I said this earlier today
but he would not want to repeat something factual. I said this before, before
any money would have flowed, I suspended the project, suspended any transfer of
money until the blind trust was in place and I had an opinion and advice on the
conflict of interest.
I was
very open and transparent with the Commissioner for Legislative Standards not to
allow any money that would actually transfer.
SOME HON. MEMBERS:
Hear, hear!
MR. SPEAKER:
The hon. the Member for
Conception Bay South.
MR. PETTEN:
Thank you, Mr. Speaker.
The
Federation of Independent Sea Harvesters of Newfoundland and Labrador was formed
in 2016.
Can the
minister explain why it's taken 14 months in the certification process?
MR. SPEAKER:
The hon. the Minister of
Fisheries and Land Resources.
MR. BYRNE:
Mr. Speaker, the hon. Member
may not be aware that the Labour Relations Board is a quasi-judicial body which
answers to the legislation and reports to the House.
AN HON. MEMBER:
He's asking a FISH-NL
question.
MR. BYRNE:
If I understand, this is a
FISH-NL question that you're asking?
Mr.
Speaker, if it's a question of the FISH-NL and the certification of that
particular group, that would be done through the Labour Relations Board.
MR. SPEAKER:
The hon. the Member for
Conception Bay South.
MR. PETTEN:
Thank you, Mr. Speaker.
The
question was for the Minister of Labour. The Labour Relations Board falls under
the Minister of Labour, who happens to be not the minister who just stood up
that time. So I'll ask it again.
The
Federation of Independent Sea Harvesters of Newfoundland and Labrador was formed
in 2016.
Can the
minister explain why it's taken 14 months in the certification process?
MR. SPEAKER:
The hon. the Minister of
Advanced Education, Skills and Labour.
MR. HAWKINS:
Thank you, Mr. Speaker.
Now that
some clarity is given on the question there, it's very, very clear that the
Labour Relations Board, as you know, is a quasi-judicial board and any
complaints that go to that, as a minister, I have to be very, very clear in the
fact that I have independence in that. I do not interfere with the Labour
Relations Board. That would go through the process and they will make a decision
on that, Mr. Speaker.
SOME HON. MEMBERS:
Hear, hear!
MR. SPEAKER:
The hon. the Member for
Conception Bay South.
MR. PETTEN:
Thank you, Mr. Speaker.
I ask
the minister: Has there been any significant changes since 2015 to the staff at
the Labour Relations office?
MR. SPEAKER:
The hon. the Minister of
Advanced Education, Skills and Labour.
MR. HAWKINS:
Thank you, Mr. Speaker.
My
understanding is that we do have a new chair in place in the Labour Relations
Board.
AN HON. MEMBER:
A fantastic chair.
MR. HAWKINS:
And a fantastic chair at
that.
Mr.
Speaker, again, all of these issues that come before the Labour Relations Board
are dealt with from a quasi-judicial board that will make an independent
decision. They use the regulations within the Labour Relations Board to make
those decisions. It's not my position, as minister, to interfere with any of the
decisions or to expedite the way in which they do their work.
SOME HON. MEMBERS:
Hear, hear!
MR. SPEAKER:
The Member for Conception Bay
South.
MR. PETTEN:
Thank you, Mr. Speaker.
How many
active files are being processed by the Labour board?
MR. SPEAKER:
The hon. the Minister of
Advanced Education, Skills and Labour.
MR. HAWKINS:
Most of them that are active,
I guess, Mr. Speaker.
To give
the exact number, I am not given these numbers on a daily basis but, in fact, I
can certainly find out how many are active. I'm assuming that everyone that is
active is being dealt with in a timely manner, Mr. Speaker.
SOME HON. MEMBERS:
Hear, hear!
MR. SPEAKER:
The Member for Conception Bay
South.
MR. PETTEN:
Thank you, Mr. Speaker.
I'm sure
all the fish harvesters in this province are not finding it as funny as the
government are, Mr. Speaker.
When can
the members of the FFAW and FISH-NL expect a final resolution on this matter?
MR. SPEAKER:
The Minister of Advanced
Education, Skills and Labour.
MR. HAWKINS:
Thank you, Mr. Speaker.
I can
assure the Member opposite that both the FFAW and FISH-NL will receive a
decision when the decision is made from the Labour Relations Board.
Mr.
Speaker, this is a very interesting file. I'm sure they are taking all of the
necessary information and going through it to make sure that a decision that
they've made – and my understanding is that they are taking the measures that
are necessary to make a decision that would be an appropriate decision from the
Labour Relations Board. As soon as that decision is made and a final decision,
we will certainly know that.
SOME HON. MEMBERS:
Hear, hear!
MR. SPEAKER:
The Member for Conception Bay
South.
MR. PETTEN:
Thank you, Mr. Speaker.
Mr.
Speaker, I ask the minister: When was the last time he met face to face with D-J
Composites employees?
MR. SPEAKER:
The Minister of Advanced
Education, Skills and Labour.
MR. HAWKINS:
Thank you, Mr. Speaker.
Certainly, we fully understand the situation with D-J Composites in Gander and
realize that employees have been on the picket line for quite some time. Mr.
Speaker, at my department, we have, through the Labour Relations Board, provided
services to both sides.
As you
know, Mr. Speaker, the best deal or contract is a negotiated contract. We
understand there have been some areas of concern through the whole process of
this contract. We have provided services that would try to expedite an
agreement. Unfortunately, Mr. Speaker, that has not happened, but I can assure
the Member opposite, that we still provide services to both the employers and
the employees.
SOME HON. MEMBERS:
Hear, hear!
MR. SPEAKER:
The Member for Conception Bay
South.
MR. PETTEN:
Thank you, Mr. Speaker.
As
Minister Responsible for Labour Relations, what measures have you personally
taken to resolve this situation that's gone on way too long?
MR. SPEAKER:
The Minister of Advanced
Education, Skills and Labour.
MR. HAWKINS:
Thank you, Mr. Speaker.
We have
taken several measures. As a matter of fact, Mr. Speaker, back in last September
I had a request from the union to put a mediator in place. Then I had a
subsequent meeting with the employer and told the employer that I would
certainly be putting an independent mediator in place to try and resolve the
issues, at which time I did that, Mr. Speaker.
The
mediator met with both sides and had significant discussions. One of the
interesting parts of the report is when the mediator brought the report back he
did not make recommendations, he made observations and it was intended and hoped
that both sides would get together. Mr. Speaker, that did not materialize. So,
again, we are now working through the process, and our services will be
available for both the union and the employees.
MR. SPEAKER:
Order, please!
SOME HON. MEMBERS:
Hear, hear!
MR. SPEAKER:
The hon. the Member for
Cape St. Francis.
MR.
K. PARSONS:
Thank you very much, Mr. Speaker.
On February 21, the federal Minister of Fisheries
announced his decision to expropriate 25 per cent of Grand Bank surf clam quotas
and give it to a Nova Scotia company.
Minister, it's almost two weeks: Have you managed to
schedule a meeting with the minister yet?
MR.
SPEAKER:
The
hon. the Minister of Fisheries and Land Resources.
MR.
BYRNE:
Mr.
Speaker, we reached out to the federal minister to seek clarity on his decision
because an award has not yet been made on the surf clam EA of 25 per cent of
existing quota. We have asked to meet with the minister. We have doubled back
with indigenous communities, and as well with the Town of Grand Bank and the
entire Burin Peninsula.
In fact, the Member for Burin - Grand Bank has been an
outstanding leader in making sure that the federal minister, the federal
government is well aware of the circumstance facing Grand Bank; but, also, Mr.
Speaker, what's very much troubling and very important is that the spirit of
reconciliation which was attempted, which has not been achieved, our indigenous
communities have spoken out and said they'd like stronger leadership from the
federal minister.
SOME HON. MEMBERS:
Hear, hear!
MR.
SPEAKER:
The
Member for Cape St. Francis.
MR.
K. PARSONS:
Mr.
Speaker, two weeks ago this minister said he was trying to get a meeting with
his counterpart in Ottawa. So much for your cozy relationship with Ottawa when
they won't even meet with you.
Why is there such a delay? Where are the seven MPs on
this, and where is the regional minister on this?
MR.
SPEAKER:
The
hon. the Minister of Fisheries and Land Resources.
MR.
BYRNE:
Now, Mr. Speaker, that's the darkest side of politics.
Yes,
Minister LeBlanc is a friend of mine. No, he's not just a friend, he's a close
friend, he's a dear friend; and, yes, we often agree but, yes, we also disagree.
As
someone who understands that life in politics can be very, very difficult, I
would ask the hon. Member to respect one thing. The Minister of Fisheries and
Oceans is not well. He does indeed face an illness, and his capacity to meet on
an instantaneous basis is not what it was some months ago. So we have reached
out to the federal minister and when we can arrange a meeting we will.
I do
know this, that we all need to be fair minded and respectful of the needs of all
of us around us. This is a difficult job, and do you know something, we're all
trying to do it very well.
MR. SPEAKER:
Order, please!
SOME HON. MEMBERS:
Hear, hear!
MR. SPEAKER:
The Member for Cape St.
Francis.
MR. K. PARSONS:
That minister need not talk
to me about respect. I respect everybody. If the man is sick so be it, but I do
respect the people in Grand Bank and the people on the Burin Peninsula.
If you
can't get a meeting with the minister, why aren't you calling the Prime
Minister's office and have a meeting with the Prime Minister?
SOME HON. MEMBERS:
Hear, hear!
MR. SPEAKER:
The hon. the Minister of
Fisheries and Land Resources.
MR. BYRNE:
Mr. Speaker, when we need to meet with federal officials, we do have that
access. We don't need to tear down flags. We don't need to cause a fuss, but
when we need to stand up for our people, including the people of Grand Bank and
the Burin Peninsula, you can rest assured, Mr. Speaker, that this side of the
House, we will always do that.
Our
MHAs, the representatives of the people who are affected by this decision,
including the indigenous communities, are standing tall and standing up for
Newfoundland and Labrador. We do not have to resort to personal slurs and
slanders, nor do we have to say that we cannot be friends.
I had
asked the hon. Member; we don't always agree with each other, do you say that
you are not my friend?
MR. SPEAKER:
Order, please!
I ask
the minister to sit in his place.
SOME HON. MEMBERS:
Hear, hear!
MR. SPEAKER:
The hon. the Member for Cape
St. Francis.
MR. K. PARSONS:
Mr. Speaker, stand up and do
your act again, Minister, because this is about the people in Grand Bank and
it's about the people on the Burin Peninsula. This is about Newfoundlanders and
Labradorians that have full-time jobs, that are losing their full-time jobs.
I'm
asking you to stand up for those people. I'm asking you to stand up for
Newfoundland and Labrador and not let this industry go to another province.
That's what I'm asking you to do.
Minister, why – or can the Premier maybe answer this question – aren't you
speaking to the Prime Minister of Canada on this issue? It's an important issue
to rural Newfoundland and Labrador.
SOME HON. MEMBERS:
Hear, hear!
MR. SPEAKER:
The hon. the Premier.
PREMIER BALL:
Thank you, Mr. Speaker.
I am
proud to be able to stand on my feet today and talk about the federal-provincial
relationships, because no one on that side of the House could have ever talked
about federal-provincial relationships, because there was none. There was none
at all.
So what
we're talking about – and I tell you, it's not lost on me when he just mentioned
about Minister LeBlanc. Well, let me tell you this, since he's been a minister
we've had an Oceans Protection Plan that's been in place that Newfoundlanders
and Labradorians will take part in. We've had the Atlantic Fisheries Fund that
they skated around and couldn't finish to bring benefits to the fisheries in
Newfoundland and Labrador. The Marine Rescue Sub-Centre – remember that, that
used to operate in our province? – coming back to this province, Mr. Speaker.
What
about LIFO? They skated around the issue and could not get that addressed, Mr.
Speaker, and I haven't even talked about the biggest single investment that we
will see in the marine environment in Newfoundland and Labrador that will be the
Ocean Supercluster. That's how relationships are built on. We do not always have
to agree ….
MR. SPEAKER:
Order, please!
SOME HON. MEMBERS:
Hear, hear!
MR. SPEAKER:
Order, please!
The hon.
the Member for Cape St. Francis for a quick question, please.
MR. K. PARSONS:
Mr. Speaker, last year an
overflow of surf clam –
MR. SPEAKER:
A quick question, Sir.
MR. K. PARSONS:
Yes, last year an overflow of
surf clams in the Grand Bank, and Clearwater has a new plant in Glace Bay, Nova
Scotia.
Has the
minister spoken to Clearwater, and will this company remain to do landing and
process all its surf clams in Grand Bank?
MR. SPEAKER:
The hon. the Minister of
Fisheries and Land Resources for a quick response, please.
MR. BYRNE:
Mr. Speaker, we have had
regular communications with Clearwater with the senior executive, but also with
its personnel on the ground in Grand Bank. Clearwater is now evaluating the
circumstances they find themselves in. They are determining what exactly is the
consequence and impact of this particular decision.
We are
working with Grand Bank to ensure we maintain full employment. The key issue
here, Mr. Speaker, the key issue is that the federal government must rescind the
decision it took to remove the enterprise allocation from Clearwater because
they did not follow their own rules. That's our plan A.
MR. SPEAKER:
Order, please!
SOME HON. MEMBERS:
Hear, hear!
MR. SPEAKER:
The hon. the Leader of the
Third Party.
MS. MICHAEL:
Thank you very much, Mr.
Speaker.
Early in
February demonstrations were held at Stephenville High school because a male
student accused of sexual assault on three female students was being allowed in
the school in spite of an outcry from students and parents that the girls who
made the accusations felt unsafe, as did others. The school board spokesperson
claimed they had no choice in the matter because by law the student has the
right to attend classes.
I ask
the Minister of Education: Why did the school board not use its powers of
suspension under the Schools Act,
which recognizes the right to an education, in order to ensure immediately a
safe and caring learning environment for the students?
MR. SPEAKER:
The hon. the Minister of
Education and Early Childhood Development.
MR. KIRBY:
Mr. Speaker, under the
Schools Act, I don't speak for the school districts in this
province. They have a CEO and they have a board of trustees that's headed
by a chairperson who's the official spokesperson for the school districts. If
the Member has a question for the school district, that's the appropriate place
to address that.
In my opinion, as I've said publicly, we have prided
ourselves on trying to abolish bullying in our schools. Sexual harassment and
abuse of this sort is the epitome of bullying, in my opinion, that is
dehumanizing towards another person. We will be bringing in amendments to the
Schools Act to make clear to the
school districts what our practices and policies should be in this respect.
Thank you.
SOME HON. MEMBERS:
Hear, hear!
MR. SPEAKER: The
hon. the Leader of the Third Party.
MS. MICHAEL:
Thank you very much, Mr. Speaker.
I'd like to put a question to the minister with regard to
what he just said because he did say publicly that he was going to be making
changes to the Schools Act to make
sure that things were clear.
Can he tell us what he means by that?
MR. SPEAKER: The
Minister of Education and Early Childhood Development.
MR. KIRBY: Mr.
Speaker, that means an amendment to the
Schools Act.
SOME HON. MEMBERS:
Hear, hear!
MR. SPEAKER: The
Leader of the Third Party.
MS. MICHAEL:
Thank you very much, Mr. Speaker.
I say to the minister, the situation that occurred at
Stephenville High is one that could occur again overnight. Clarity of the
language in the Schools Act is needed
urgently. It was needed before, it is needed now.
I ask the minister: How quickly is he going to act to
ensure that the English school board knows it has the power to act in situations
similar to that at Stephenville High school?
MR. SPEAKER: The
Minister of Education and Early Childhood Development.
MR. KIRBY: Mr.
Speaker, the situation is extremely serious and we don't take it lightly. That's
why we're going through the normal, internal process of government to address
the issue. The school district is changing its policy with respect to the Safe
and Caring Schools protocol, and we are looking at changes to the act which
takes time.
The task force report on education was released in July of
last year and the Member came in here and demanded that we bring in the changes
that were announced in July, in September. I can't just make things happen at
the snap of a finger.
We have to have due diligence. This has to have legal
attention. Legislative counsel has to be involved. We have to do consultations
with stakeholders. Things can't happen immediately and there's a reason for
that, because we need to have due process in enacting changes to the act.
MR. SPEAKER:
Order, please!
SOME HON. MEMBERS:
Hear, hear!
MR. SPEAKER: The
hon. the Leader of the Third Party.
MS. MICHAEL:
Thank you very much, Mr. Speaker.
The Schools Act
allows for school boards to offer alternative arrangements, such as home
schooling or online learning, when they deem it necessary to have students
removed from the school for the security and safety of staff and students.
So I ask
the minister: Is he talking to the English school board, both about why they
didn't do it then and if they would do that now if a situation like this came up
immediately? They do it all the time with children on the autism spectrum. Why
not in this case?
MR. SPEAKER:
The hon. the Minister of
Education and Early Childhood Development.
MR. KIRBY:
Mr. Speaker, I'd like to know
how often this Member has reached out to the school district herself to ask
these sorts of questions. We have had a continuous dialogue since the events
became known to the Department of Education and Early Childhood Development in
January. We've had a continuous dialogue with the school district about these
matters. We've had a continuous dialogue with stakeholders who are interested in
having changes.
This
Friday, I am meeting with staff with the Newfoundland and Labrador Federation of
School Councils to address this, amongst many other issues, Mr. Speaker. I ask
the Member how many times she had reached out to the school district to make the
sorts of suggestions that she is making here on the floor of the House of
Assembly today.
SOME HON. MEMBERS:
Hear, hear!
MR. SPEAKER:
The time for Oral Questions
has ended.
Presenting Reports by Standing and Select Committees.
Tabling
of Documents.
Notices
of Motion.
Answers
to Questions for which Notice had been Given.
Petitions.
Petitions
MR. SPEAKER:
The hon. the Member for
Conception Bay East - Bell Island.
MR. BRAZIL:
Thank you, Mr. Speaker.
To the hon. House of Assembly of the Province of Newfoundland and Labrador in
Parliament assembled, the petition of the undersigned residents of Newfoundland
and Labrador humbly sheweth:
WHEREAS
Newfoundland and Labrador ought to be the principal beneficiary of the
development of our natural resources we own;
WHEREUPON the undersigned, your petitioners, humbly pray and call upon the House
of Assembly to urge government to ensure that no natural resource development
agreements are approved unless Newfoundland and Labrador is the principal
beneficiary.
And as
in duty bound, your petitioners will ever pray.
Mr.
Speaker, we've had this discussion over the last number of years, particularly
as it relates to our natural resources and there are multitudes in this province
of ours. They cover a gamut of regional, generic backgrounds and potential
future development when it comes to alternate forms of energy because we have a
natural geographic makeup here that we need to take advantage of.
We've
known in the past, and it's unfortunately happened with a multitude of
administrations, it's happened over various decades that without doing due
diligence, there are times that we've either developed agreements or never had
the hindsight or the vision to be able to say down the road, we need to be able
to understand what the value of this asset is going to be, particularly around a
natural resource.
What's
being suggested here by the people of Newfoundland and Labrador is saying: We've
learned from our mistakes. We've talked about it for the last 50 years, in some
cases. We're in debate now over how we develop the next level of our natural
resources and we need to ensure that every resident, so we can plan for the
future, plan for the present, but particularly learn from the past. As we go
through the natural resources that we have if it's in the mining industry, if
it's in the oil industry, if it's in hydroelectricity or if it's all the new
future industries that are going to come here from our natural resources, we
need to have a principal understanding that we're going to be the maximum
beneficiaries and we're going to be the primary beneficiaries here. Because the
people of Newfoundland and Labrador have struggled for 500 years, have fought to
maintain our culture here, have ensured that we are great, productive citizens
in this country but also in this world, and we've done it always to engage other
societies and be in an open society and being open for business.
But when
you're open for business, you must ensure that the people who are foremost the
individuals who've gotten the process to where it is, should benefit so they can
then have the next future generations to be secure when it comes to education,
health care, inclusion, open opportunities and engagement of bringing other
cultures to our great province of ours.
So
what's being said here is to ensure every piece of discussion or legislation
should have on it a lens that looks at any contract that's out there around our
natural resources benefit the people of Newfoundland and Labrador.
Mr.
Speaker, I present this on behalf of the people of Newfoundland and Labrador. I
look forward to doing it again in the future.
Thank
you, Mr. Speaker.
MR. SPEAKER:
Further petitions?
The hon.
the Member for
Cape St. Francis
MR.
K. PARSONS:
Thank you very much, Mr. Speaker.
The current federal government policy regulations link
harvesting quotas to length of vessels. Many harvesters own fishing vessels of
various sizes, but because of federal regulations, harvesters are restricted to
using smaller vessels and often putting their crews in danger.
We, the undersigned, call upon the House of Assembly to
urge the Government of Newfoundland and Labrador to make representation to the
federal government to encourage them to change the policy to ensure the safety
of those harvesters in our province.
Mr. Speaker, I bring this petition today and I will
continue to bring it in the House of Assembly because it's very important issue.
It's a very important issue in my district. I know a lot of people that are
harvesting crab and there are different zones of crab. There's outside the
200-mile limit, there's inside and there's the inshore zone. A lot of times
you'll see harvesters that have licences in each one of these zones.
Mr. Speaker, because of these regulations they're
forced to using vessels that are probably undersized, under the 35-foot length
and then under the 45-foot length for different zones. They probably have to
have three vessels. My thing with this whole thing, I believe that we as
Newfoundlanders and Labradorians should be doing everything to make sure that
the harvesters that go on the water are in safe vessels. We have seen in this
province, and you will see it every year, and it is sad and it affects
communities and it affects our whole province.
(Inaudible due to technical difficulties.)
I think
that these regulations can be changed. I'm hoping the minister will do something
about it and talk to the federal government because it's our resource, they're
our people and we need to protect them.
Thank
you very much, Mr. Speaker.
MR. SPEAKER:
Further petitions?
Orders
of the Day.
Orders of the Day
MR. SPEAKER:
The hon. the Government House
Leader.
MR. A. PARSONS:
Thank you, Mr. Speaker.
I call
from the Order Paper, Order 2, third reading of Bill 33.
MR. SPEAKER:
The hon. the Government House
Leader.
MR. A. PARSONS:
Mr. Speaker, I move, seconded
by the Minister of Finance and President of Treasury Board, that Bill 33, An Act
To Amend The Access To Information And Protection Of Privacy Act, 2015, be now
read a third time.
MR. SPEAKER:
It is moved and seconded that
the said bill be now read a third time.
Is it
the pleasure of the House to adopt the motion?
All
those in favour?
SOME HON. MEMBERS:
Aye.
MR. SPEAKER:
All those against?
This
motion is carried.
CLERK (Barnes):
A bill, An Act To Amend The
Access To Information And Protection Of Privacy Act, 2015. (Bill 33)
MR. SPEAKER:
This bill is now read a third
time and it is ordered that the bill do pass and its title be as on the Order
Paper.
On
motion, a bill, “An Act To Amend The Access To Information And Protection Of
Privacy Act, 2015,” read a third time, ordered passed and its title be as on the
Order Paper. (Bill 33)
MR. SPEAKER:
The hon. the Government House
Leader.
MR. A. PARSONS:
Mr. Speaker, I call from the
Order Paper, Order 3, third reading of Bill 34.
MR. SPEAKER:
The hon. the Minister of
Justice and Public Safety.
MR. A. PARSONS:
Mr. Speaker, I move, seconded
by the Minister of Finance and President of Treasury Board, that Bill 34, An Act
To Amend The Legal Aid Act, be now read a third time.
MR. SPEAKER:
It is moved and seconded that
the said bill be now read a third time.
Is it
the pleasure of the House to adopt the motion?
All
those in favour?
SOME HON. MEMBERS:
Aye.
MR. SPEAKER:
All those against?
AN HON. MEMBER:
Division.
MR. SPEAKER:
Division has been called.
Please
call in the Members.
Division
MR. SPEAKER:
(Inaudible) given that we do have an audio problem right now, we are going to
recess for 15 minutes.
I
propose we convene at 2:45 o'clock.
Thank
you.
Recess
MR. SPEAKER:
Order, please!
So
Division has been called.
Is it
the pleasure of the House to adopt the motion?
All
those in favour, please rise.
CLERK:
Mr. Joyce, Mr. Byrne, Mr.
Haggie, Mr. Hawkins, Mr. Crocker, Mr. Osborne, Mr. Kirby, Mr. Mitchelmore, Mr.
Warr, Mr. Bernard Davis, Ms. Gambin-Walsh, Mr. Edmunds, Mr. Browne, Ms. Haley,
Mr. Derek Bennett, Ms. Cathy Bennett, Mr. Finn, Mr. Reid, Ms. Parsley, Mr. King,
Mr. Dean, Ms. Pam Parsons, Mr. Holloway, Mr. Brazil, Ms. Perry, Mr. Kevin
Parsons, Mr. Petten, Mr. Lester, Mr. Lane.
MR. SPEAKER:
Those against the motion,
please rise.
CLERK:
Ms. Michael; Ms. Rogers.
Mr.
Speaker, the ayes: 29; and the nays: two.
MR. SPEAKER:
I declare the motion carried.
On
motion, a bill, “An Act To Amend The Legal Aid Act,” read a third time, ordered
passed and its title be as on the Order Paper. (Bill 34)
MR. SPEAKER:
The hon. the Government House
Leader.
MR. A. PARSONS:
Thank you, Mr. Speaker.
I call
from the Order Paper, Order 5, second reading of Bill 35.
MR. SPEAKER:
The hon. the Government House
Leader.
MR. K. PARSONS:
Thank you, Mr. Speaker.
I move,
seconded by the Minister of Municipal Affairs, that Bill 35, An Act To Amend The
Public Inquiries Act, 2006, be now read a second time.
MR. SPEAKER:
It is moved and seconded that
Bill 35 entitled, An Act To Amend The Public Inquiries Act, 2006, be now read a
second time.
Motion,
second reading of a bill, “An Act To Amend The Public Inquiries Act, 2006.”
(Bill 35)
MR. SPEAKER:
The hon. the Government House
Leader.
MR. A. PARSONS:
Thank you, Mr. Speaker.
Standing
up today to speak to this amendment to the
Public Inquiries Act, 2006 and I guess it's sort of related to a bill that
we discussed here in this House yesterday which was the amendment to ATIPPA.
I'd like
to thank the staff within the department. They've done a tremendous amount of
work, not just in respect to the inquiry but certainly as it relates to these
pieces of legislation providing briefings, not just to the Opposition and to
government caucus but, today, actually we had a technical briefing provided to
the media on this particular bill because it not a simple matter.
It's not
a huge amendment in terms of size but it's substantial and it's one that if you
just read it, you might have some questions. But I'd like to think that with the
very able handling of this matter by our staff, our deputy minister, staff
solicitor, as well as one of our ADMs, I think they did a great job, not only
into the briefings to the Opposition but to the media today. I thank them for
all that they've done on this bill and the other bills, three bills in the last
two days.
We're
standing here today with this amendment which, as I said, is not huge in the
sense that it's a complete overhaul of a bill. It really is basically an
amendment that's an addition to an existing bill.
What it
says here, and I want to read this out because all of this is important. The
Public Inquiries Act, 2006 is amended
by adding immediately after section 24 the following: “24.(1) Where the Crown or
a person designated under subsection (3) discloses to a commission or inquiry,
either voluntarily or in response to a request or summons, any information over
which immunity or privilege, including solicitor-client privilege, is asserted,
the immunity or privilege is not waived or defeated for any purpose by the
disclosure.
“(2)
Where a commission or inquiry determines that it is necessary to disclose
information over which the Crown or a person designated under subsection (3)
asserts immunity or privilege, including solicitor-client privilege, the
immunity or privilege is not waived or defeated for any purpose by the
disclosure.
“(3) The
Lieutenant-Governor in Council may designate persons to whom subsections (1) and
(2) apply.”
And then
the next one here is: “2. This Act is considered to have come into force on
January 1, 2018.” That date is important for reasons that I'll get into now
shortly.
Basically, in layman's terms what we're doing here with this amendment, should
it pass, is we're ensuring by statute that solicitor-client privilege will still
apply to information which is provided to the Commission of Inquiry into Muskrat
Falls, and that it is not waived merely by virtue of being passed over.
What I
want to do is try to get into it a little bit more and talk about why we're
here, how we're here and what this all truly means. As I discussed yesterday, we
have the Commission of Inquiry which was set up in November, headed by Justice
Richard LeBlanc. They've been very busy, since that time, getting the inquiry up
and running. I know they have some hearings coming soon, standing hearings,
which is to determine who does have standing at this. They have a timeline
that's in place.
Just to
put out there for the record – one of the issues that were discussed yesterday –
this is a timeline that was certainly not forced upon Justice LeBlanc, it's one
that Justice LeBlanc knew going in and accepted. No justice is going to accept
an impossible task. These commissions of inquiry, every one of them is
difficult, comprehensive and important. But this one, I think, very well may be
the largest in terms of document disclosure and in terms of information.
What
happened is in early January the Commission basically sent to government a
summons, a request, for any and all information – and I don't have the actual
wording here – related to Muskrat Falls since 2006. Right now, within the
Department of Justice alone, there is 36 gigabytes of data just on that request.
That's well over a million pages of information to be sent. It's a tremendous
request. It's absolutely humongous.
Here are
a couple of things to keep in mind. When the request came in, the request – or I
don't know if it was a request or a demand but, either way, it was we want the
information within two weeks. That's huge. Just actually getting the data,
getting the information over the last 12 years is a significant task, getting it
compiled, putting it together and then sending it over to the inquiry.
One
thing we've made clear all along is we want to do everything we can to ensure
this inquiry proceeds as expeditiously as possible. That's why we were here
yesterday making an amendment to ATIPPA and we're here today – again, we want to
ensure that gets over.
In
putting together the documents, there are a couple of things to keep in mind.
The request itself was so broad that, in many cases, the information that falls
under the request will not be deemed relevant to the inquiry. I have a pretty
good suspicion that once they go through it, they'll say so much information is
relevant and some of it is not, but the request is broad and that's fine, that's
what we want. We wanted a wide lens, a wide net cast on all that information
that may apply.
One of
the other problems, though, is that some of the information requested – which,
in many cases, is not relevant – has to do with other very sensitive government
matters, legal opinions on non-related matters, government policy,
solicitor-client issues, just really sensitive, important information that if
you lose privilege, could hurt, not just government but the people of the
province.
It's
basically like allowing the hood up, and let's look underneath and see what's
there. In many cases, it could be seen as giving away government information
that will harm – and when I say government, it's not about this government. It's
about any government. It's about matters that pre-existed this one coming in and
could continue on to another government. It's not about this administration.
It's about the administration.
In
disclosing the information, a couple things here; one, the amount of information
is so vast that looking through it to see what is privilege and what is not,
what do we need to have a look at, that would take months – months. By
disclosing it you are deemed, in many cases, to have waived solicitor-client
privilege. So by giving it over, privilege is gone.
Later
on, what that could mean is the information comes back to government, somebody
puts a request in for that information and says: It's not privilege anymore, you
waived it – therein lies one of the problems.
We had
solicitors going through this and instead of going through every page, it was
felt that by bringing in this amendment we could protect it, we could get all
the information over and some has already gone. That's why you'll note that
section 2 says this will be retroactive to January 1. This catches everything
that goes over there.
Once
it's all over there, they can then go through this, deem what's relevant, what's
not relevant, the process that will be followed. That's completely up to the
Commission what they need and what they don't need. They'll determine that.
That's basically the whole purpose of what we are doing here.
When you
talk about amending the Inquiries Act, and whenever we talk about ATIPPA or
Muskrat Falls, the mere mention of those terms or names creates heightened
awareness amongst the public, in my opinion.
Even
here in the House when you hear certain terms – after 2012 with Access to
Information or ATTIPA or Bill 29, the mere mention of it, people thought about
it. In many cases, the fact that we're bringing this amendment – if you were
just to look at it without reading you might think: What's going on?
That's
why it's so important that we stand here, not only in the House and have this
debate, but we did the technical briefing today with the media. It was a chance
for the media to sit down – as the purveyors of information to the general
populace, it was a chance for them to sit down and ask all the questions they
wanted on: What does this mean?
I was so
happy to – again, I will say, my staff did a 10-times-better job explaining it
than I ever could. This is what they're used to. This is what they're good at.
So I thank them for doing this.
Now, we
talk about the term solicitor-client privilege, and people have a general
concept on what it means and what it's about, but I want to put out there
exactly how important it is. Just so people would know, and this has been
decided at the highest level of court in our country, obviously, the Supreme
Court of Canada. Solicitor-client privilege applies to a communication between
solicitor and client which entails the seeking or giving of legal advice and
which is intended to be confidential by the parties.
The
Supreme Court of Canada, I've got a good quote here from one of the latest
pieces of legislation to go through the courts on this topic, and that's Alberta
v. University of Calgary, 2016. In that case, they do a tremendous job of
explaining the rationale and the importance of privilege and solicitor-client
privilege, and I'm going to quote from the case.
“It is
indisputable that solicitor-client privilege is fundamental to the proper
functioning of our legal system and a cornerstone of access to justice.” That's
actually a quote from the case Blood Tribe, at paragraph 9. “Lawyers have the
unique role of providing advice to clients within a complex legal system.
Without the assurance of confidentiality, people cannot be expected to speak
honestly and candidly with their lawyers, which compromises the quality of the
legal advice they receive. It is therefore in the public interest to protect
solicitor-client privilege. For this reason, ‘privilege is jealously guarded and
should only be set aside in the most unusual circumstances.'”
In fact,
the Supreme Court has also said that solicitor-client privilege is a substantive
rule that has overtime evolved into a fundamental civil and constitutional
right. This is not small stuff and it has been confirmed of its fundamental
nature to the justice system and that privilege has to be as absolute as
possible. If you start tearing away at that, you start tearing away at the
system.
This is
not me; this is the Supreme Court of Canada that has made these decisions on
multiple times over the years. The most recent one that I'm aware of is 2016,
but it goes right back. Some of the cases I refer to, one of them here is
actually from 1980.
I put it
to you this way; a client comes in, and it could be on any type of matter. They
feel comfortable talking to their solicitor and giving all the information
because in doing so it's the only way they're going to get proper advice. If a
person comes in and feels that everything they say is going to be told to
somebody else, exposed, put out there, in many cases they won't talk. Therein
lies the importance of it, and I love – actually, I can quote, there's a great
movie here that Tom Cruise is in, The Firm,
where he talks about solicitor-client privilege.
It's
like a ship with cargo that will never reach its destination. A lawyer who has
that information, has it there, it can never go anywhere. It cannot go anywhere.
I can't understate, or overstate, how important this is. People say, well, what
does that matter?
Again,
in this case we're not just talking a client going into the lawyer to talk about
a family matter, we're talking about – in this case the client is government.
The client is government and they're going in, and the release of this
information would be detrimental to this entire province in many cases.
Now,
let's go back to why we're here, the commission of inquiry. Nobody launches an
inquiry without wanting to get to all the information. That's the whole purpose
of this. The purpose – as I've said on many, many occasions – of an inquiry is
to get down to what happened for that particular situation. Is it for a – in the
case of Dunphy where we had the shooting of a civilian? Is it the Cameron
inquiry? Is it the Ocean Ranger inquiry? Is it the Hughes inquiry? All
substantive, important matters, and the purpose of an inquiry and why it's
independent, is we need to get down to it without any interference and find out
what's going on.
The
second part is what can we do to avoid a situation of this nature from happening
again; but, we must keep in mind that certain pieces of information that are not
relevant should not have their privilege removed and harmful to government. We
can't allow that to happen. That's the whole purpose here.
I would
note that if this were not to be placed in here, if we were not to do this
amendment, many people may take it upon themselves not to put all the
information forward. We want everything forward. We want everything in front of
the commissioner to make this decision.
I'm just
going to go through – I have some notes here that I'd also like to go out there,
just to put everything on the record. I look forward to the comments from my
colleagues across the way and then to the Committee stage where I'll certainly
try my best to answer questions.
We all
know the commissioner has broad powers, and one of those is the fact that they
can put summons out there for information. They can request your presence at the
inquiry. They can request your testimony at the inquiry, search warrants, all
things. This is one of the reasons you do an inquiry is because that
commissioner has the ability to do all these things.
We all
know how privilege applies in court. It applies in the same way for an inquiry.
I've talked about privilege. A commission of inquiry cannot compel disclosure of
privileged documents, and the disclosure of this could result in the loss of
that privilege.
This is
not a case of wanting to hold back the documents, because we want to put it all
out there; all we're doing is protecting the privilege that goes with these
documents.
These
are good points to put out there. The loss of the privilege applies to the
entire matter. It's not select parts; it applies to it on a whole. So not just
specific documents, it would go to the entire matter. You can imagine how this
would be completely and extremely detrimental for various reasons. Once the
privilege is lost, that loss is permanent. You can't go back.
The
issue here we talked about is that when the documents come back, the privilege
is gone. The Crown can't say: No, no, these are privileged. No, those are going
to come out. We're talking not so much about the inquiry itself but about future
litigation unrelated to the inquiry. That's one of the things that we're
concerned about.
The
purpose of this today is to facilitate document disclosure to an inquiry without
prejudicing government's ability to maintain privilege and immunity in other
contexts. It's not creating any new or existing privileges for government. It
allows us to disclose everything without the risk that would apply that I
described earlier.
Specifically, this amendment will ensure that any privilege or immunity
applicable to government documents is not lost due to disclosure to an inquiry
or disclosure by a commission during an inquiry. I think that lays it out there.
I don't think I want to belabour this point much more than this.
I had an
opportunity to speak to the media on this earlier today and answer questions
they might have had. I understand the Opposition was briefed on this last week
so they've had an opportunity to review this and to ask questions.
At this
point, I'm going to take my seat. I look forward to the debate from my
colleagues and to Committee stage of this bill.
Thank
you, Mr. Speaker.
MR. SPEAKER:
The hon. the Member for
Conception Bay East - Bell Island.
MR. BRAZIL:
Thank you, Mr. Speaker.
It's,
indeed, an honour to stand in this House and speak to Bill 35, An Act to Amend
the Public Inquiries Act, 2006. As the minister has outlined, his department
officials gave a very thorough and professional briefing. This is a very unique
piece of legislation from a legal point of view but, also, particularly for its
implications as we go through.
It's
unique to a certain degree. I know the minister made some references to
particular nuances and particular examples, but because we're changing the
legislation to reflect something that's going to tie directly in to an inquiry
now that's been called. That's becoming the debatable issue here right now. It's
about the importance of this piece of legislation – and not the legislation, but
the amendments to it, and the reference that it will have and the impact that it
will dictate when it comes to the inquiry.
I just
want to make it clear for the people at home, this is about changing a piece of
legislation that directly will affect the dissemination, the sharing, the public
access to pieces of information that I personally feel, and I think a lot of us
on this side of the House feel, are going to be pertinent to the Muskrat Falls
inquiry. No doubt, everybody in this House has asked for the inquiry; everybody
supports the inquiry.
I know
us here in the Official Opposition are 100 per cent approving and supporting
that we get the inquiry moving forward, that we have an open process, and that
as much information – all information, but as much information that is needed
not excluded because it fits within a legal ramification, would be accessible
and open to not only be used by the Commission itself, but also for the general
public (inaudible) to be able to have a discussion around and an understanding
of what's being put forward.
So this
is where it becomes the debate around the changes to this piece of legislation
in Bill 35, because the issue we're trying to get around and the conversations
we're having is particularly around the sharing of information and why in any
case or any scenario would there be restrictions. Keeping in mind that the
inquiry itself, and the officials who are going to lead that have extensive –
and I mean beyond extensive legal backgrounds. So they would know if they're
treading into areas which in some way, shape or form is going to have a legal
implication to an individual or a company as such.
To have
particular pieces of information before it ever gets to them, deemed that it's
not important or that they shouldn't have access to – and I know it's a debate
about all information will be given to the inquiry. Then the inquiry would say,
here's what we want. We want all this. But then coming back, the department or
government or Cabinet will decide no, we've looked at that, you can have 80 per
cent of it, because we're going to talk about solicitor-client privilege here.
That
becomes a tangly situation. I've talked to some people from legal backgrounds
and their issue to me was, the word tangly came up; this is a very tangly
situation. But the other word became: Why would they go this route; why is it
necessary to do this at the end of the day? Particularly when what we're calling
for here is an open, transparent process to get answers, or get direction or
clarification to ensure three things: that the project publicly is known how and
why we've got to where we are; any impacts it's going to have on future costing,
the cost for electricity, the billing in this; but also how we would mitigate
any future issues around development similar to this.
And we'd
get that from an inquiry. That's how we get it. A set of recommendations come
out, we've seen that in recent inquiries that have taken place where you get a
full-fledged understanding of how we got to that point, the factors involved,
the personalities involved, the outside entities, the intent, how far the intent
went to the final outcome and if it changed somewhere along the way, what were
the impacting factors that caused that to occur.
So it
becomes a bigger umbrella issue here around let's put everything on the table.
Let's put everything out so that we have a clear understanding of what it is
that the inquiry is going to need, that the legal professionals and the
technical professionals are going to need to ensure that they can look at the
issue around here is again, was it the most cost-effective project, was it
deemed necessary, did we need the power, and the costing acknowledged at a
certain rate, why is it now that the overruns are far more than would have been
built into a contingency. So there are three key things that need to be
addressed here.
There's
no doubt the commissioner already putting together – and what I do like, when we
had the discussion and the debate in this House, this was going to be all
encompassing, it was going to be extremely open and all information would be
disclosed. We all supported that process. I know and I can honestly say that I
served as a backbencher when this was first being debated. I served in Cabinet
in the later years when the process was about to begin the construction phase.
There were questions asked and there were presentations made. There were
discussions about where we were and why, instead of the straight line, things
that had to curve to the left or the right to address particular issues and
needs, and that we were going to run into some particular challenges just by the
nature of the scope of the project, and certain unforeseen circumstances that
popped up – not that they weren't planned for, but popped up from a different
dimension.
That's
all understandable. Based on the principle of that type of information, I'd like
to know, what was shared with me, was all the information that was available or
was I just given enough information to appease my understanding of where the
project was, or was that exactly the accurate information that was available at
the time and reflected exactly where we were.
We
weren't asking to get down into the minute details of the construction phase,
the contracting phase, the assessment phase and all those type of things.
Because there were a multitude of professionals internally and externally, and
outside consultants, who gave advice because they were experts in that field. It
would be relevant to exactly why the project would move at the rate it was
moving.
As we
move forward, hindsight, all kinds of other intuition and all these type of
things would say, you know, at the end of the day, a project of this magnitude
that we haven't done to this degree in a different type of terrain, in a
different type of culture, in a sense of a working culture now when we have with
the unions, multitude of unions, when we're bringing outside contractors from
other countries who are not even used to the geography here, what factor would
that have on the final time frames, the final outcomes and, particularly in this
case, the final costing and then what that final costing impact would have on
the general population, particularly around one particular thing, and that's
ratepayers having to pay what particular rate for electricity once Muskrat Falls
totally comes online for Island generation.
They
were things that need to be out there. We've heard, particularly in the last two
years, the general public, no doubt, have had some concerns, and there's still a
fair bit of support for the project in a general context; but I think everybody
has the same concern that we have, that for the last two years the governing
party here having been hanging their hat on, that Muskrat Falls wasn't done
right, that Muskrat Falls got out of hand, that Muskrat Falls isn't the best
project, Muskrat Falls is not something we needed.
Fair
enough, if that's your belief and you have evidence to that process and you want
to expose that, by all means, do it. As a matter of fact, we, on this side, have
jumped up and said we want to know it too. If there's something that needs to be
clarified and something that needs to be exposed, do it. Particularly, if
there's something that needs to be put here now, the quicker the better so that
we can move the project to the next stage because we know the project is not
stopping. We know the project is 75 to 80 per cent complete. We know it's going
to bring electricity to the Island. We know it's going to bring electricity to
Labrador. We know it has the ability for us to be able to go on an international
and a national market to be able to sell additional electricity.
We know
if it's used right and promoted right, it can help attract other type of
industry to Newfoundland and Labrador. We know all that. But if we're going to
do this and do it right, we need to be able to address two key issues. As I say,
the elephant is in the room. One is how a project that was supposed to be so
fluent and all stages were met get offline from a time point of view and get
offline from a financial point of view. How do we, after the end of the inquiry,
ensure that no matter what project we take on – because Gull Island is only a
few years later. At best, a decade later with a number of partners and probably
a different approach, but what that approach may be will have to be based on the
Commission's recommendations and findings.
To do
that, we have to ensure every available piece of information, every commentary
that was made, every suggestion, every minute piece of research that was going
back 10, 15, 20, 25 years is important because it has an impact on the end
result.
I know
the minister has outlined – and I understand, if I was in the Commission's side
or if I was in Nalcor, there are a multitude of pieces of information here from
all angles. It's going to mean a very encompassing process; it's going to mean
resources may have to be dedicated.
People
have thrown out $100,000, $200,000, $300,000 in additional resources, but in
this case – and we're talking a multi-billion dollar project that can and should
be and will set out to be the mainstay of moving Newfoundland and Labrador
forward in a number of ways. From a green energy point of view, from
guaranteeing that we had available energy levels all through the province, that
we could use it as an attraction for industries in Newfoundland and Labrador and
could also use it so that we weren't depending on any other jurisdiction. We
would control an entity, an asset and make it revenue generating without any
additional costs to the people of Newfoundland and Labrador, once the asset is
in play and is doing what it was set up to do, which was provide green energy to
the people of Newfoundland and Labrador.
To do
that, the first focus, I would have thought – and I'll go through some notes
after – led to believe last fall was around that the government wanted to ensure
every piece of information that was available – everything. No matter who was
involved with it, it would be shared with the Commission. The Commission, then,
would have that right at their fingertips to pull at any given time, which in
turn then meant that could be shared with the general public who have the
biggest vested interest here.
Don't
forget, this whole inquiry, the whole intent of building Muskrat Falls was to
enhance the general public's ability to have an asset, have access to
electricity and do their environmental part for our great province. To do that,
we need to ensure all information is shared.
A couple
of questions that I brought up, and there were some discussions with some legal
people, were about tell me – and this is, again, complex. Unfortunately, not
having a pure knowledge of the law, particularly around this component of it,
client-solicitor privilege, and you can see it may be different if you're in a
murder case or if you're in some kind of an insurance case, it might be a little
bit different, things that are said and done and these types of things.
This is
a bit different from my perspective. Again, not having a legal background, but
I'm seeing it from Joe Public who's looking from outside saying we've had debate
for this for the last seven years. I want to know if there's something here that
needs to be addressed, if there's something here that didn't go the way it was
supposed to.
If it's
something that was done deliberately, why would we not open up the process that
ensures all that's put out in the open so that everybody at the end of this
process feels happy that three things were accomplished: transparency and
openness was done; that we now have, say, no matter what Crown corporation you
are in Newfoundland and Labrador, never forget who you work for. You work for
the people of Newfoundland and Labrador and who you're answerable to, as part of
that process. As a third thing, anytime we do something that may not have worked
out, how do we ensure we learn from that process, that we don't repeat it again?
We'd probably find better ways of doing things and develop more practices,
improved practices as we go through that whole process.
To come
in with a change to a piece of legislation that talks about wanting to do
something that's all encompassing, purely engaging and an open and transparent
process, but then get to the edge of the door and saying: By the way, not
everybody can get through the door. You're all welcome to come in, but not
everybody can get through it. The restrictions on that are going to be based
around something that's in the legal genre of client-solicitor privileges, but
having the definition of how that relates directly to this piece of legislation
becomes a bit questionable, particularly for people who are not fluent in the
law and how this would relate to it, particularly if you talk around contract
law.
We've
all heard it, we see it in some of the other cases that we've had in
Newfoundland and Labrador and in other places, but as it relates to sharing of
information in an open inquiry, that's not about directly pointing blame.
There's not somebody on that hot seat. It's about an inquiry of a project that a
multitude of agencies, groups, professionals, departments, corporations had a
direct input into helping design and helped move forward.
So the
connection is not as simple and it would say in some of the examples that have
been used when it comes to client-solicitor privileges. I've had a hard time
trying to make that connection and making it valid. Not saying that in law it's
not written, that it can fit in any context, but I'm having a problem seeing, in
this particular case, knowing what the discussion has been and knowing what the
intent of the inquiry was, why in any way, shape or form we would put any
restrictions on it. Not only is it a restriction, but it becomes very
encompassing. While the minister talked about there's a lot of information,
there's going to be more discussion around what is accepted and what isn't.
If what
the government is saying is all information is going to go to the Commission,
well, that's fine. So all the information is out there already. I'm lost to say
there's so much of it, but then at one point you're touting that all the
information is going to go to the Commission, but the Commission may not have
the ability to use all that information.
That
becomes a questionable process there, and the intent of why you would go that
route and not show that you're open and transparent, keeping in mind these are –
legal minds would say, particularly in the commission, here's the information I
need and here's why I need it. For me to hit the objectives of the inquiry, I
need A, B, C and D. Don't give me A, B and D, and C not be accessible because it
fits under a particular category that now exists that didn't exist before,
because you're putting this in the same vein as something else in the legal
system, the client-solicitor privileges.
If I was
a commissioner sitting on that, I would have some real challenges. Regardless if
I had a multitude of backgrounds or knowledge in particular laws relevant to
this, I would be saying I want all the information. We saw it in other
commissions.
The
Cameron commission was extremely open. Information was shared over periods of
time. It was explicit to the impact it had on the patients in this case and the
process used prior and during, and even the process around contacting those who
had been misdiagnosed or given the wrong information or after surgeries needed
to be addressed and looked at. I can't recall seeing a lot of the
solicitor-client privileges being invoked there as part of it. We know the
witnesses were called from various backgrounds, ministers of various
departments, and questions were being asked.
The
solicitors there asked very poignant questions around: Why was this done? Who
was aware of it? They had all kinds of documentation to say you sent this email
at this point, you spoke with this group of individuals, you requested this type
of information. Now, can you clarify exactly what your intent was with that?
Were there any issues you had with it? Should this have brought you to another
point where there would have been a concern about what was happening?
I see
the same thing here. I see no difference in what we're doing here in the sense
of making sure that the commission and the commissioners have all the
information they're going to need to make an informed, or open up first for an
informed discussion and then ensuring the report at the end of it is reflective
of what particularly the issues are, and to do that you must, first of all, have
access to all that type of information.
Again,
to go break that down – there's no doubt, when we get in Committee I'll ask the
minister for some extreme examples of how this would work in other
jurisdictions. I've gone through – we know there are only two other provinces
that even have a similar one here, Ontario and BC, but there are particular
nuances. I don't think their legislation was changed to when an inquiry was put
in place.
I could
see going the opposite. I could see if this legislation already existed and now
we're bringing in an inquiry, we have to come and say we have to change the
legislation and open it up so that the inquiry does have access to everything
and people can't just flippantly say solicitor privileges here or
solicitor-client privileges in any way, shape or form. But when we're putting
something in that doesn't exist in other forms, particularly when it came to
inquiries and that, then I have to challenge. I have to question: What's the
intent?
I don't
know if it's just because it fits well with the legal process. I don't know if
it's something that people inadvertently are saying: Well, no, people could
still get the information. But our research is saying: No, no, if under that
it's challenged as the client-solicitor privilege, and while the information may
be given to the inquiry and the inquiry says, yeah, I want all of this, but then
the department or the government – and I still need some clarification on
exactly who, in this case, would make those decisions, because it becomes like a
conflict of interest.
If
you're calling for an inquiry but after you said it's going to be a whole open
process, you're also restricting the debate and you're restricting the debate
because you're restricting the type of information that can be put out there, so
that the debate can centre around whatever that piece of evidence or that piece
of information is relevant to. I have a major problem with that also.
So that
makes you start to think, what's the intent here? What's the driving force? I
have no inkling of saying there's any suspicious malice here. What I'm asking is
somewhere along the way we're going to need some real clear clarification
because, obviously, the bill itself – and I'll just read quickly here the
Explanatory Note: “The Bill would amend the
Public Inquiries Act, 2006 to confirm
that immunity or privilege is not waived when the Crown or a person designated
by the Lieutenant-Governor in Council discloses information to a commission or
inquiry.”
The bill
itself is not much longer than the Explanatory Note, and the minister noted
that. Meaning this is not a big encompassing piece of legislation, but the one
change makes it as if this was a massive act, because the understanding there
and the impact it has on everything else in the act is very important, and
extremely important here.
I just
go back to a couple of the clauses here. The first clause of the bill would add
a new section, 24.1, to the Public
Inquiries Act, 2016.
MR. SPEAKER:
Order, please!
I remind
the Member to try to stick with the principle of the bill, not delve into the
clauses.
Thank
you.
MR. BRAZIL:
Fair enough, Mr. Speaker.
I do
that, but I need to outline this so that people would understand the changes
being made here are particularly around the clauses. The principle around what's
being entitled that you're going to hold back stuff is relevant to the clause,
because the clause itself is being changed to ensure that, in this case, all the
information can't be shared. Because you can invoke a particular clause here and
it talks about “… designated under subsection (3) disclosures to a commission to
inquiry ….”
This is
all about the information that's going to be distributed to the commission. The
clauses here – the principles, to me, are directly connected to the clause
because the clause is being changed to alter the principle of the piece of
policy and legislation we're doing. The argument we're having here is we don't
agree with the principle of the changing of this piece of legislation, and the
clauses reflect that.
What it
says here basically in the clauses, where the commission determines that a piece
of information is important and relevant, they must then ask for clarification
of whether or not there's going to be a challenge under the client-solicitor
privilege. If indeed that's done, then a decision is made that that piece of
information is not going to be relevant for them to be able to use in the
commission.
There's
a real problem with that, as I see it, a real problem. Because in my
interpretation, you're being judge and jury because it's the government who
called for this commission. It's the government who are now bringing in this
piece of legislation. It's the government, at the end of the day, who will make
the decision on what piece of information or what fits under the
client-solicitor privilege.
There
are three nuances there that I have a real problem with. What I would have
thought was going to happen and what I think we were led to believe: Commission,
we're open. We're going to give you everything we have. Everything you want to
use, you can take it and use it. I say that because – I'm not making that up. We
were told when the commission was coming that this would be an open process and
it would get to the root of everything that's gone on with that, and it would
get to the root because the government who were proposing this were outlining
and supporting exactly what would be there.
We were
told, to the bill, there will be a new provision. Actually, it promotes
disclosure, and it's a good thing. We were told that in this House, that's a
quote. I was so happy to hear that and said, well, this is great. Let's get it
out there, but that's unclear at this point. I can't see how it does that when
it puts in a restriction that didn't exist. It didn't exist in this process. It
didn't exist in a number of the other inquires. It doesn't exist in 75 per cent,
80 per cent of the other jurisdictions.
Of the
ones that have something similar, it's all left to interpretation, because they
haven't gone to this level on a particular open inquiry that's not connected to
a direct individual or group. It's connected to a project that has a multitude
of facets, and they all have to be studied. They all have to be researched. They
all have to be disclosed. They all have to be discussed. They all have to be
evaluated and then a set of recommendations come or a finding from the
commissioner.
The
thing here, and here's the key thing, here's our key understanding here: the
government currently has the right to refuse to disclose information if it is
protected by solicitor-client privileges. The courts usually respect this, so
the information request could be denied. That's in the normal judicial system
that it's considered, that would be part of it.
We're
saying that this inquiry was a bit different and that wouldn't be included in
this. You'd follow the legal processes, but you would not be imposing a
restriction that would be used normally – they're normally used in the
protection of a witness in a lot of cases and in protection of somebody
disclosing pertinent information that may have a physical impact on somebody or
a safety impact on people. That's not what we understood would happen in this
inquiry. This was about, purely, getting all the information so a commissioner
and a group of commissioners could make a decision on exactly what was what and
how it was going to work.
I looked
at some things. If the government was worried that there was something in a file
that shouldn't be released and that released part of the file was compromising
to the secrecy to all the file, including the sensitive information, then in the
public interest, the government would refuse to disclose any of it and protect
the secrecy of the sensitive information that would deny the inquiry the
information they seek and need.
So one
of the challenges here about that is they can pick and choose. So all of a
sudden, if there are five or six pieces of information that gets sent over and
they say this reflects the negative part of the project, we're going to share
that; we're not going to challenge that. But here's something that supports the
project moving forward. Well, we're going to use the client-solicitor privileges
there.
We're
not saying that's what they would do, but we're saying this opens up the door
for that piece of interpretation and challenging, which again is still going to
be an encompassing and a costly process. So if we use cost as one of our factors
as to why we're not going to share all the information, we have to be realistic
and we have to be honest with people. We have to be upfront and say, at the end
of the day, if it's cost prohibitive, say that.
If we're
do that on a $12.5 billion project or a couple hundred thousand dollars, tell
that to the people. Don't say it in one sentence and then in the other sentence
say by the way, we're going to challenge 25 per cent of information we're going
to put forward, that there is going to be cost related to it, that there are
going to be solicitors involved, particularly, as part of that.
Obviously, I would think it would be at a higher level of cost than it would be
if we're asking somebody from OCIO or somebody else to photocopy information or
to download information to be shared or somebody to put it on a screen for the
commissioners to look at. I'm just looking at where the cost relevance would be
here.
So when
we talk about there are going to be legal challenges about pieces of information
or interpretation, I don't suspect it's going to be one of the truck drivers for
Muskrat Falls is going to interpret whether or not the solicitor-client
privilege should be invoked in this particular challenge.
At the
end of the day, we have to be realistic, what we're talking about here. We've
got to be realistic about where the costs are going to be relevant. If the costs
are going to be relevant, the first way to take the cost out of it, if it's
going to be cost neutral on both of these challenges, then let's stick to the
intent of the Commission and the inquiry, and that was about getting to the root
of any of the challenges for this project and getting all the information out
there that was relevant.
That's
what we're talking about. We need to examine all other interpretations of what
the client-solicitor privilege is when it relates to this type of project. We're
Opposition and that's what we do as Opposition. Ours is to challenge and
question if what you're saying is your belief, or what you're saying is your
understanding, that's fine and we respect that, but I want to know and look at
is there another belief, is there another understanding, is there another
approach to this. Is one factual and one not factual? Or is there a middle
ground that needs to be looked at here as part of that?
That's
all we're saying here as we have this debate and we'll have it for the next
period of time around two key things: what it is we want to achieve, and how
we're going to achieve it. I thought what we wanted to achieve was already set
back in November and December when we had some discussions here about opening up
and getting confidence back in the public, that we have a project here that
we're going to move forward. All entities agreed it's going to have to move
forward. It is at a level now that it's in its final completion stage. How do we
maximize the return for the people in Newfoundland and Labrador? How do we
minimize the impact on them? And particularly, how do we ensure things like this
that may have gotten out of hand because there wasn't proper planning, or there
were issues there that were a challenge, how do we ensure it doesn't happen in
the future?
They
were similarly key components that I thought we would get out of this. We seem
to be taking a different route here because we're going to be putting in
restrictions on how we're going to achieve those goals. From the people I talked
to in the general public, they're all in favour of the inquiry because they want
to know what it is went on to get this to where it is, and what impact it's
going to have on them from a financial point of view.
The
financial point of view may not necessarily always be in the negative. What is
it that's part of that project in its infancy stage, in its development stage,
and in its future benefits that would benefit them and the next generations? So
they want to know these types of things. That's simple. And that's what we were
all led to believe the inquiry would do, and I still think the inquiry can do.
I would
think that side of the House over there, the government side, would want that
also. I would think their Members go back in their respective districts and talk
to people about Muskrat Falls, and talk to people about the upcoming inquiry. No
doubt, they're saying the same thing to the MHAs in those respective communities
as they're saying to me.
We want
to know where it is, we want to know how we can get the best return and the best
benefit on it, and we want to ensure that it minimizes the impact on people and,
at the end of the day, it doesn't happen again. If we under budget it, if we
misinterpreted the numbers, if numbers led to believe something that didn't
exist, if people were incompetent – these are things that need to be identified
as part of it. That's what a Commission does. You see it in any Commission
that's happened over the past number of years. You can look cause and effect,
and that's what most Commissions come out to. The cause of getting to it while
you called the Commission to have an inquiry, and then the effects it's going to
have on people, and the set of recommendations to mitigate those impacts.
So
that's where we are with this. I just want to go back and talk a little bit.
I've seen some of the Members over there shaking their head when I'm talking
about what the intent of the inquiry was. I thought it was simple, that's how I
understood it, unless I totally missed it in the House here and missed everybody
from the media and everybody outside talking about what they wanted to achieve
from it. It was a simple understanding.
I just
want to go back to some of the things relevant to the discussion that we had. I
just want to recount the statements of the Premier and the Minister of Justice
made in the House about their intent to disclose information to the inquiry –
because that's what this is about. This whole debate now, it's secondary about
the inquiry; primary, this piece of legislation is about what information can be
disclosed and under what grounds it can be challenged not to be disclosed. This
is simple. And we know under what grounds that it's being proposed here and
changing a piece of legislation, and it's about the client-solicitor privileges.
So I
just want to bring back about some of the things to tie all this together when
we talked about what was the intent here, and as I saw some people shake their
heads in disbelief that my understanding of what it was. But I'm going to read
it out, and tell me, was that not your understanding. I can particularly talk
about the Premier and the Minister of Justice.
October
16, 2017, it's only last fall, a few months ago we had these discussions. The
Premier said: “We will put in a terms of reference that is all encompassing.”
Great; nodded, I went along with it; everybody on this side said perfect, that's
what we need. We need to know exactly where we're going with this, what it is,
what it needs to come out with an end result that benefits the people of
Newfoundland and Labrador.
“Mr.
Speaker, we look forward to having a very intense, detailed, deep dive into how
we got into this situation.” My first statement when I stood up was about we
need to know where this got off the rails. That simple. And that statement
speaks volumes for that too. Agreed with the Premier today; agree with him
still. I hope he still agrees with the statement he made on October 16, 2017.
“That
will include everything from a forensic audit.” And there was a whole debate
about a forensic audit and what impact that would have and what benefit. And
finally, people were convinced; let's go that route. That makes sense. The more
information you have, the more lens on it, the more angles, the more you can
disclose exactly what lines up with what, what doesn't and what information then
is needed to make an informed decision on your go-forward process.
“The
commissioner and those people, they will have a broad width and they will use
whatever resources they need to get the real answers that were hidden from the
people of this province.” I agree.
If there
was something hidden from the people of this province, you know who they were
hidden from? David Brazil, the Member for Conception Bay East - Bell Island,
because I sat over there, I asked questions, probably nobody more than me –
maybe the Minister of Natural Resources debated Muskrat Falls on
On Point radio,
On Point television, spoke to it, spoke to the merits of it, the
need for it, the benefits it would have, the generational improvements it would
make in our society.
I want
to know, if for some reason I was led down the garden path, if for some reason
somebody was incompetent, who made decisions at the time. If it's for some
reason that we have to take into account with our terrain, geography, all the
challenges we have here that things got out of hand, then we need to be
prepared. Because this won't be the only thing we do over the next 50 years in
Newfoundland and Labrador that are at a large scale, because we can't be afraid
to do megaprojects either. Now, can we do them better? Sure. We're hoping we'll
learn how we do them better from this process.
“Our
intention is to expose all of that and let the inquiry do the work.” This is
from the Premier, this is not me. Thank God, I can nod and go along and say:
yeah, you know what, good point, I agree 100 per cent. But you can't say that in
one light and then have a debate on legislation that restricts some of the
things that you can do. You can't have it both ways. It doesn't work that way.
That's not how legislation works.
For
every action there's a reaction. If your action here is you want this to work
because you want to have access to all the information and then bring in
legislation that restricts that, I have a challenge. I have to challenge them. I
have to challenge whether or not you want to achieve the objective you had. So
that becomes a challenge. I have a real problem with that and I'll continue to
debate that part of it.
If you
come back and say: no, no we're going to find ways that every piece of
information gets shared. That the client-solicitor challenge, we're changing
that because it really won't have any impact here. I need someone to explain
that to me because I can't get the legal minds outside to explain it to me, who
are outside looking in.
I know
the department officials, no doubt, have intent of what's trying to be achieved
here. In layman's terms, my interpretation of what's trying to be achieved,
certain pieces of information that somebody doesn't want to be shared will have
an ability not to be shared. I can only put it in those terms because other than
that, I can't rationalize it in my own mind. That might be because I don't have
a clean understanding of the client-solicitor privileges, but I definitely don't
have a clean understanding of how that relates to this particular inquiry. That
becomes a challenge for me and we'll have a great debate over it.
Whatever
measures are needed, they will have the resources to do it. The Premier goes
back to talking about the resources. Well, one of the arguments I've heard is
that this would cost money. It will take time. There's so much information, it's
going to be a very encompassing process.
We've
all agreed. When we voted for that, nobody over here disagreed or said: No, but
we're going to put a caveat there that you can't spend X numbers of dollars or
you have to be able to pull something back a little bit different. Or, no, no,
if it's only 10 boxes that were allowed in and we have 12, somebody has to keep
the other two out. That wasn't what the intent was. Nobody ever said that over
here, I guarantee you that.
I know
the Premier didn't say it over there. I'll touch on some of the Minister of
Justice stuff. He didn't say it over there either. We were on the right track
until where we are right now, where it got off the rails again. Something went
askew. For some reason there are pieces of information that either people don't
want shared or afraid once they look at it – because there's no doubt, nobody
would know everything that's there now until this inquiry. F
I doubt,
with so many entities involved here, anybody would know exactly everything,
other than maybe the people who were at the beginning. But a lot of who were at
the beginning are not there now. There will be information that's gone on the
last number of years, also, that needs to be disclosed and shared with the
Commission to get an understanding of where this project is and where it needs
to go.
“We are
going to get the answers that are required.” Perfect. I can tell you there are
520,000 people in Newfoundland and Labrador who want to get the answers too.
They want to know where our future lies when it comes to the largest project
that we've undertaken, want to know what impact it's going to have on people.
That's welcome. It's perfect.
Let's
talk about November 20, 2017, a month later. So we're in debate now, it's all
public that this is going to happen. It's already announced who's going to lead
the inquiry. Perfect, everything is in play. A respectable commissioner who's
going to lead it, a legal background second to none, understands the whole
process. Great, no dispute, no debate, no wish around that.
The
Premier again says: “We will get the answers ….” He's following up, so we're in
the right trend here. The right trend is here. We're all confident we're going
to get the answers because we deserve them. That's what it's about.
“I have
nothing to hide, that I can guarantee you.” Perfect. Because I guarantee you,
we, on this side, have nothing to hide. We want all the information to come out,
whatever it is. I guarantee you, if there's something that somebody shows – and
I'll look at that. If they say you were at this meeting or something, I'll have
to dispute. Or I'll say, yes, I was there and believe that piece of information
or, yes, that's accurate information.
Is it
something that was detrimental? Unless my memory is totally gone astray, the
conversations I was engaged in and the information that was shared to me and the
things I researched and looked at all fell within the scope of what was being
proposed and what was being moved forward.
“I for
one will be glad to sit in front of the commissioner and speak about my
experience on the Muskrat Falls Project prior to becoming Premier and while
being Premier. So let's make that very clear.” Perfect. I respect that. That's
from the Premier. That's in late November. So that's ideal.
If he's
willing to sit there, I know David Brazil is willing to sit there, and I know
the people on this side of the room are willing to sit there, but why don't we
also, while we're sitting around the room, have all the information that is
relevant to what we're debating here. I think that's an easy set.
So far,
the continuum here is everybody supports the process. Everybody supports the
commissioner having carte blanche, total control, total access to everything
possible, up to this point. Now we're up to November. The Commission is set,
ready to go. The nuances are being worked out like anything to get in play,
don't forget, for January 1. Everything is to be in play for January 1, because
the legislation here talks about retroactive to January 1. It's all in play.
We're weeks away from this happening.
“I will
comply. I will be more than willing to sit in front of the Commissioner and
discuss my experience from the beginning to the end of this project. That you
can guarantee.” He's reiterating what he had already said three times earlier.
He's willing to do that. Perfect. Great for you, Premier. I greatly respect
that. I can't wait to see it and so many other people that may be called as
witnesses to the Commission.
Well, to
do that and in light be supporting that we're going to put restrictions in what
information gets shared. Is that information that verbally I can share? Is it
information that's on a document? There are some challenges here about what that
really means.
Now I'm
going to talk about some of the things the Justice Minister of the day had
talked about, when he talks about in reference to the inquiry. He's asked,
“Certainly, what we have here I think is a very broad terms of reference.”
We all
agreed to it, and that was what was debated. We've had a number of people who've
been challenging the Muskrat Falls Project for years. The 2041 group and all of
them have outlined their concerns for a number of periods of time. One of the
big things some members of that had outlined was the terms of reference were too
narrow and that we needed a broader scope on it.
The
Minister of Justice had supported that, thought it was a good move forward and
worked towards expanding that. I compliment him for that. I think it was a good
move. I think it fits in well with everybody's intention of what was trying to
be achieved here; but, as he does that, now we're having a debate on a piece of
legislation he's putting forward that would find ways to restrict how broad
those terms of reference are, particularly when it comes to what pieces of
information can be shared with the Commission. So, again, that's where I have a
challenge on saying you're going to do something and then later on thinking and
saying maybe we should hold back on some stuff. If there's a rational reason
that benefits the people of Newfoundland and Labrador, fair enough. Share it
with us. Give us the intent to how that works. I have no problem with that. I'll
be the first one to nod and applaud that.
“When it
comes to an inquiry, we want the facts. What happened? The second part we want
is to ensure that the recommendations throughout will help avoid a situation
like this happening again in the future. That's what happens in an absolute
inquiry.” I have to agree. I think I said that about eight times. At the risk of
repeating myself, Mr. Speaker, I probably have said that eight times.
Again,
do you know who I'm happy with? The Minister of Justice. It's a very valid point
that he made back in November also – very valid. He echoed again what we were
thinking. Now I'm happy to be able to say I've echoed it for the last 35 minutes
or so, or 45 minutes now, about where we are with this. So we're on the same
page. Right now, we're not off kilter with each other. We may when we get into
some debate on the vote on this piece of legislation, but we'll see where that
takes us over the next number of days.
“The
second part is that I can guarantee you, everybody on this side would be ready
to appear if compelled and put any evidence there ….” Thank you, perfect. He
took the lead on that, exactly what the people of Newfoundland and Labrador
wanted to hear. Do you know what? It's what this side of the House wanted to
hear also. Put it all out there. You have nothing to hide. We have nothing to
hide.
If
there's an entity that has something to hide, there are people that's out beyond
the scope of this House of Assembly, let that evidence be shown to the
commissioner and to the general public and get it to be used in the best
interest of moving the project to the next stages and ensuring that people are
protected. I thought it was great.
“At the
end of the day, the Public Inquiries Act
allows for the justice of his independent inquiry to compel everybody –
everybody – to appear, to give testimony, for the release of documents so that,
at the end of the day, all the facts of this matter will be known. This will be
an independent inquiry that's quite broad so that the people of this province
get the full disclosure on what happened.”
Perfect;
it is singing to the choir, without a doubt. It is exactly what the intent of
those people outside who have their own blogs, who are on
Open Line, have asked for and want it disclosed. It was what the
Members in the government had been saying for a number of years, that they
wanted done. It was what we said when it was being proposed that we would
welcome and would totally support, not even an issue. To this day, still support
it. I'm glad these are the words of the Justice Minister because I can echo
those and support them.
What I
would point out, though, is that under the terms of reference it talks about the
fact that everything will come out, including reliable estimates of the cost at
the conclusion of the project to the conclusion of the project itself. We're
talking about the beginning right to the end; everything needs to come out into
the light of day. Good, I couldn't have said it better myself. Very articulate,
very compliant to what was being set out and outlines exactly what it is we
would want to achieve and how we can achieve it. If all of the information comes
out, it will work, day in and day out, make it that much easier.
It might
mean the Commission goes a little bit longer. It might mean there's an
investment that wasn't budgeted for that may have to be done. It might mean that
there's a different approach taken by the commissioners that you access to all
this information. That's fine, that's what we're trying to do here, get at the
root of what has gone on with the project and how we ensure that we gain from
the inquiry itself.
Again,
let me make this extremely clear to the Members of the opposite side – that's us
over here who are nodding at the notion that there would be an inquiry, we were
supportive of it – as well as to all the people of the province. These are the
people who we serve, these are the people who are going to benefit from this
project, and these are the people who need to know the answers. They need to
know from a future point of view what impacts this is going to have.
This
inquiry and its terms of reference, which will be led independently by Justice
LeBlanc will have the power to compel anybody and everybody, to compel all of
the evidence. We want absolutely every shred of information from the time that
this was set up until the time it's completed to come into the light of day
under the watch of Justice Richard LeBlanc.
We have
a perfect individual who is going to lead this inquiry, who understands the
process and, no doubt, is very knowledgeable about this project because it's not
something that was hidden from the general public. No doubt, everybody has a
view and an understanding, and I suspect he's done his own research over a
period of time. Now he'll get an opportunity to see all the evidence, or we
would hope so.
That's
what this debate is all about, that all the evidence that should be out there is
accessible by him. What he wants to use should be his decision. What he wants to
share with the public, fair enough, but even the public should have an
understanding. We're into an inquiry stage. Unless it has a direct impact, and I
mean a serious, serious impact on somebody the information should be shared
around all the decision-making processes here, those who were engaged in those,
and the impacts they have. These are simple processes here.
I'll
quote a couple of more from him, and I'm doing this because I want to explain to
him that we, over here, were brought into it. There was no opposition from us
going through this process here up until where we are right now, no serious
opposition. We had a couple of inquiries, a couple of questions, no doubt about
it, as we would if you're going to have any inquiry at the end of the day. The
process for selecting who the commissioner would be, the time frames, all these
things – and we've had some challenges about the time it's coming out later than
we would have hoped, these types of things. I'm saying this because until we got
here today we were quite supportive of this approach and saw the benefits to the
people of Newfoundland and Labrador.
We still
see the benefits of the inquiry, don't get me wrong. We see that people from
Newfoundland and Labrador can, no doubt, benefit from the end result, the open
discussion, the recommendations and how we move things forward, but we want to
make sure that reflects every piece of information that should be there.
We don't
want something left behind that Commissioner LeBlanc could have put into a set
of recommendations or could have outlined so we'd be cognizant of future
directions, or entities that we're dealing with that may not be doing work in
the best interests of Newfoundlanders and Labradorians, whatever it may be. But
to do that, to make that decision or to make that assumption or that
recommendation, he needs to have all the information that's pertinent to this
inquiry.
As the
Minister of Justice outlined, anything from start to finish is pertinent to this
inquiry. So why would we restrict anything, any piece of information there? That
becomes a challenge for us on this side when we're endorsing, supporting and
complimenting the government for putting a process in place that will be all
encompassing and the terms of references, as they say – and I quote them – would
be so broad that there will be no information that wouldn't be shared. Thank you
for doing the right thing. That was the thing, without a doubt.
I just
want to note a couple of other things here: “I'm certainly happy to have someone
of the calibre of Justice LeBlanc handling this because anybody that knows him
knows of his thoroughness, knows how he is going to want all the information out
there.” I keep just quoting things because this is being said by the government,
and supported by us, that the inquiry should have all the information. We have a
competent individual who can disseminate that information, put it into the
process that would be beneficial to everybody.
I ask
the question if we're saying all these things, we mean them and we say it out of
sincerity, to me, I read this – I can't dispute the Minister of Justice not
saying it sincerely coming from a legal background, having respect for that man
and knowing that he would go out of his way to ensure that this report would be
beneficial to the people of Newfoundland and Labrador. Why would he even think
about restricting him being able to do his job to the ultimate, ultimate level
that would be beneficial to the people here?
That's
when I started – I definitely got to have some clarification when we get to
Committee on the thought process, the benefits, how this would benefit, how this
indeed enhances the inquiry versus from a layman's point of view – and I'll
plead ignorance on that. As a layman's point of view, I'm taking the point that
I don't see how this in any way, shape or form helps the inquiry.
My
interpretation, unless it can be explained to me differently – and I listened to
the minister as he spoke at the beginning and nobody has read it more than me
and it's not a very big piece of legislation, particularly the changes, and I
can't get my head around it. I've asked people outside to give me a pure
rationale of why this would be done in this situation.
I am not
saying that a piece of legislation that would include – which we have it, it
exists now –client-solicitor privileges is not important. Of course it is, very
much so. It's used every day for a particular reason and that's to the integrity
of the justice system. But in this case, again, it becomes questionable as to
why we would implement something that would take away, potentially take away, or
give jurisdictions or interpretation to some other entity, if it's the
department, if it's the Department of Justice, is it Cabinet, is it an outside
entity to say this fits within client-solicitor privileges. And, as a result,
may keep away pertinent information that would have improved the outcome of the
inquiry and let the commissioner, Justice LeBlanc, do his job, do what he was
hired to do because he's a very competent individual, particularly after we all
had agreed this would be the right approach.
It was
never mentioned. I don't know, maybe I missed it, but three months ago when we
had this discussion, I can't ever remember saying oh, and by the way when we get
there, client-solicitor privileges, we're going to have to come back and change
that legislation because we don't think all the information should be shared.
There should be a challenge by whoever, some entity, some part of it. I don't
know, again, I can't get my head around exactly how they're going to carve off
what fits under that category and what doesn't. And is it all of something that
fits under client-solicitor privilege or is a part that is negative towards the
former government? I don't know, and that's probably the politician in me; I'm
getting suspicious as to the intent here. What's the end result?
I'm just
asking questions because I really can't figure it out and can't get anybody else
to figure out for me. Hopefully, the other speakers here, they can clarify and
maybe I'll get a better understanding. Maybe that will change the questions I
ask. Maybe that will change how I vote at the end of the day, because I'm always
open to getting the information. This side of the House, we're always open to
that.
We're
not entrenched in our view because it's anti or opposing government; the
opposite, we're entrenched in a view if somebody can't explain why our vision of
what's happening is detrimental to the people of Newfoundland and Labrador when
we're challenging it, we're thinking something here doesn't fit in the best
interests of what we're trying to achieve, that's a simple process I would think
here, and we've talked about what it is that we're really trying to achieve
here.
I'm just
going to not a couple more of the other ones. These are the particular ones that
I like, because there were some challenges, and that's why I questioned here
from the legal perspective, or the interpretation of legal, because I don't have
a legal background so I wouldn't know the particular ramifications of it, but I
do know certain other things that could be questionable, whether or not they
could be exempt from it.
“We are
certainly happy to release Cabinet confidence as it relates to this process to
ensure that this administration's decisions are put out there in the clear.”
There's always been a challenge around Cabinet disclosure and what's protected
under that. If we're saying that we're going to put all of that out there, we
welcome it. I think that's a good move.
There
was some very in-depth discussions in Cabinet, no doubt, by ministers of the day
and those who were responsible for the entity that was developing Muskrat Falls
around how the project was going, what the intent was, what other partners
should be involved, what challenges were there.
Because
one of the things that I'm looking forward to in the inquiry is does this tell
us about the challenges that people didn't foresee, or challenges that people
didn't see as being important, or as important as some of the other (inaudible)
went there. Yet we've found since these challenges had a mega impact on the
costing, the timelines, the working environment, a number of things like this
that for some reason never got discussed or never got disclosed because maybe
they weren't seen to be important – or didn't get disclosed to me anyway, I know
that, and to the general public, because I would have heard that back from
people that I talk to on a daily basis.
Information like that, having Cabinet disclosure I welcome; we welcome. It makes
sense. It's an important part, yet there are legal nuances around disclosure
from Cabinet. So if the government are saying we're going to disclose it all,
and that even sort of challenges some of the legal set-ups of Cabinet
privileges, we support it.
So we're
saying if we're gone to that depth, we're gone to that depth that everything is
coming out, perfect. That means the people of Newfoundland and Labrador can
steadfastly feel confident that at the end of this, when this report is done,
when Justice LeBlanc sits down and meets with the media and makes his report to
government and to the people of Newfoundland and Labrador, they can feel secure
that everything that was conceivably exposed was exposed. Every piece of
information that was pertinent was asked for, that everything that could be
discussed was discussed, because it was all transparent and open. And there
weren't challenges around what needs to be kept secret or what part of a report
we can divulge, or the client-solicitor privileges here is going to be invoked
because we're dealing with an entity outside of Canada or outside of
Newfoundland and Labrador.
These
are questions and challenges that not only do I have, and we have over here in
the House of Assembly, but I guarantee you, the people of Newfoundland and
Labrador, people are who are more apt to understand what goes on in this, people
who want to know the impact it's going to have in the future, and people who
want to know, if we're going to have an inquiry, let's have a full inquiry, and
a full inquiry means full access to information that is pertinent.
Now, if
it's something that's not pertinent, if somebody bought a tin of Coke on their
way to Goose Bay to look at something, I don't think that's pertinent. Don't
need to be in there. I don't know if that's going to fall under the
client-solicitor privilege, because I don't know, I can't get my head around
where that fits. But I'm looking forward to those explanations as part of it.
Why in
any way, shape or form, after they did a good thing, they stood up, stood up for
something they wanted, represented the people of Newfoundland and Labrador,
wanted answers to know where we are, but particularly where we're going to go
with this and how we're going to address it; did it in the right manner and then
even came back and said all encompassing, terms of reference are going to be
massive, like nothing we've ever seen before; get set up – no doubt Justice
LeBlanc must be thinking, okay, he's sitting down carving out exactly how he's
going to approach this, what this would work.
I know
some of the proponents who were against this project were positive and they had
challenged it over a period of time, but now all of a sudden there's a wrench
thrown in it, and here's the wrench, there's a caveat. The caveat is we're going
to change the legislation, we're going to come in the House and we're going to
change the legislation that says somebody could challenge it under
solicitor-client privilege to ensure certain pieces of information, and then we,
we being the government, can make the decisions of what gets shared with the
commissioner.
So, Mr.
Speaker, I'll take my seat now, but I'll have a chance in Committee, no doubt,
to have some more discussion around a very important piece of legislation.
Thank
you, Mr. Speaker.
SOME HON. MEMBERS:
Hear, hear!
MR. SPEAKER:
Order, please!
The hon.
the Member for St. John's Centre.
MS. ROGERS:
Thank you very much, Mr.
Speaker.
I am
very happy to stand and speak to Bill 35, An Act to Amend the Public Inquiries
Act, 2006.
SOME HON. MEMBERS:
Oh, oh!
MR. SPEAKER:
Order, please!
MS. ROGERS:
In the Explanatory Notes in
the amendment that is being proposed here: “This Bill would amend the
Public Inquiries Act, 2006 to confirm that immunity or privilege is
not waived where the Crown or a person designated by the Lieutenant-Governor in
Council discloses information to a commission or inquiry.”
SOME HON. MEMBERS:
Oh, oh!
MR. SPEAKER:
Order, please!
MS. ROGERS:
Thank you, Mr. Speaker.
Mr.
Speaker, this inquiry is highly, highly anticipated by members of the province,
by the people of the province, all over the province, in Labrador and on the
Island portion. It's highly anticipated, and I suspect it will be closely
watched because the people of Newfoundland and Labrador want answers.
What has
happened throughout this Muskrat Falls Project, this damn dam, is that the
confidence of the people in successive government has been shaken.
Mr.
Speaker, this Commission of Inquiry will be the unveiling of the story of
Muskrat Falls, and that's really important. The people of the province want to
know, what is the real story of Muskrat Falls? They want to know the beginning,
the middle, and what might come close to the end. The people of the province
have a right to know that. So this inquiry is so very, very important.
Again,
with much anticipated, and probably will be well watched, and I suspect people
will be around their water coolers talking about what they heard on the news the
night before about the inquiry itself. People will be talking about it at their
places of work. They'll be talking about it at their dining room table. They'll
be talking about it within their activist groups. There may be some surprises
that will be unveiled, there may not be.
I would
like to thank the commissioner, Justice Richard LeBlanc, for taking on this huge
project. Knowingly, we all have confidence in Justice LeBlanc. I'd also like to
thank in advance his team as well. Also, those folks here in Confederation
Building who have helped set the scene for this and the necessary legislation,
and the Minister of Justice.
We've
seen a number of pieces of legislation that have come to the House to help
prepare to enable this inquiry to do the best that it can on behalf of the
people of Newfoundland and Labrador; again, because there is so much invested in
this inquiry. It is about re-establishing and shoring up people's confidence in
our democratic process, people's confidence in successive governments or future
governments which is so incredibly important, Mr. Speaker.
I also
want to thank the Minister of Justice for very clearly and succinctly explaining
to the House here, and to the people who are watching, really what this bill is
about and putting it in accessible terms, because in some ways it's very, very
complex, but in other ways it's very simple as well in terms of its intention.
I'd like
to thank the Minister of Justice for explaining that so clearly today. I'd also
like to thank the good folks in the Department of Justice and Public Safety who
took the time to give us a very clear briefing and have made themselves
accessible to us should we have any questions around the bill.
I have
some questions which I'm looking forward to Committee to ask for some
clarification. I must say that this is so important. The Muskrat Falls Project
has been so hard on the people of Newfoundland and Labrador. Some people are
continuing to be very worried about the outcome, what it will mean for their
electricity bills.
What it
has done in really shaking trust, confidence in our democratic process because
of the way this project unravelled, the way this project removed itself, where
the previous government allowed this project to go through by removing some of
our democratic tools like a joint panel, like removing it from under oversight
of the PUB. All those are cumulative effects on the people's confidence in their
government. So this is well anticipated and will be well watched.
A lot of
speculation going on around what power rates people will have to pay. People are
concerned about whether or not businesses will be able to continue on in this
province. If the power rates soar, what does that mean when you have
refrigeration in your corner store? How will that affect the price of milk? How
will that affect the price of when you go for a piece of cheese or a piece of
bologna in your corner store? Really, what will the price be?
What
will be the trickle-down effect of exorbitant electricity prices on the people
of the province and on business? On our own institutions in terms of how much
will it cost to power our building here and our hospitals and our schools?
They're very real concerns that the people have.
They
want to make sure that this inquiry will answer: Were the people of Newfoundland
and Labrador at the centre of every single decision that was made before Muskrat
Falls was sanctioned? A lot of people feel, no, that the people of the province,
that the working people of Newfoundland and Labrador, the seniors, the senior
people living in Newfoundland and Labrador – a lot of people feel they were not
at the centre of the decisions that were made in the sanctioning of Muskrat
Falls. Those are concerns that people have.
There
are stories that abound around bad management, about poor decision making. Some
of them based in fact, some of them in urban or rural legend. Some of the
stories that have come back from workers on the site may have been exaggerated
or may not have been exaggerated. We've all heard the stories. So this inquiry
is so important to all of us and much anticipated. It will interesting to see it
roll out.
Indigenous communities, indigenous governments, the issue of methylmercury, the
issue of the North Spur, where communities downstream from the North Spur still
feel vulnerable. They're still not convinced they are safe and everything that
was possibly done around that issue has been taken care of. Mud Lake residents
are still very concerned; the issue of the cost of electricity and the basic
cost of the project.
I can
remember in 2012, just shortly after I had been elected, CBC, David Cochrane,
had a radio program called On Point.
It was a half-hour radio program. Three of us rookie MHAs were invited, one from
each party. I was representing our party in that particular show. We got onto
Muskrat Falls, and I said: David, I've got my dancing shoes right here in the
studio with me and I am ready to go dancing in the street if it can be proven
that Muskrat Falls is economically viable, environmentally sustainable and good
for the people.
At that
time, the budget for Muskrat Falls was estimated at $6.5 billion or $6.8
billion. I also said: Furthermore, David, I believe it's going to be at least
$12 billion. That was in 2012, Mr. Speaker. Do you know what they did? They all
looked at me, they rolled their eyes and they laughed.
So, Mr.
Speaker, this inquiry is so very important to the people of the province. People
are looking forward to answers, and I believe that we will get the answers.
As the
Minister of Justice had pointed out to us today, in order for Justice LeBlanc
and his dedicated team to do the work they need to do, the amount of
documentation that will be coming forth he said will be over a million pages.
Mr. Speaker, I don't know if you piled all that paper up, if that would be as
big as the dam itself, for goodness sake, but who knows.
I want
to again thank all the people who are going to have to wade through that
material. In order for this to work, in order for this inquiry to work, we have
to make sure that the people of Newfoundland and Labrador have confidence in the
process and that they have confidence in Justice Richard LeBlanc and his team.
Because again, what we're talking about is restoring confidence and restoring
confidence in our democratic process and how we do business in this province.
When the
Minister of Justice was speaking about what is this bill about, we're doing two
things; we're ensuring that we get as much co-operation as possible from the
Crown, from Nalcor, so that the team at the Commission of Inquiry can do the
best work that they have been commissioned to do; and then we also have another
issue that we have to protect here and what we have to protect is the whole
issue of the statute of solicitor-client privilege, that must be upheld. That
is, as the Minister of Justice told us, a foundational piece of our justice
system and that has to be upheld.
There's
also a belief that the amendment here will make it more possible for the Crown
and for Nalcor to release information, to release documentation to the
Commission so that it will ensure that the Commission has, again, as much
information as possible. The mountains of information will be arriving at the
commissioner's office. The inquiry has asked for all of the documentation around
Muskrat Falls since 2006, 12 years. That's 12 years of information.
Just as
a little aside, Mr. Speaker, we all thought that with the introduction of
computers, we would have less paperwork to deal with. As a matter of fact, I
know in my own life that I have more, not less. It's amazing what you can
generate from your little box on top of your desk.
The
minister also told us that there are 38 gigabits of information and that's over
one million pages of information. That is a lot, Mr. Speaker, and somebody is
going to have to go through that. So one of the questions I will have is: How
will the whole issue of relevance on some of the information be dealt with? I'm
sure we'll be able to ask those kinds of questions in Committee.
The
minister also said that the request for information from the Commission was so
broad that there will be information that will be submitted that isn't
particularly relevant to the inquiry in and of itself. What this amendment is
doing, it will facilitate disclosure. It will facilitate disclosure by saying
that if the Crown asserts privilege over its documents, the commissioner can
report on or publish the relevant parts, but no one else can access the other
parts for another purpose. We're not waiving that very important principle of
solicitor-client privilege.
The
amendments protect information that you may have one document that has
particular relevance to the Commission of Inquiry, but also information that has
no relevance to the Commission of Inquiry. What it does then is that it protects
that information so that no one can come through the back door and try and get
access to that information because that information has been given to the
Commission of Inquiry for the purpose of the inquiry on Muskrat Falls. This is a
safeguard that has been set up to ensure further disclosure of information so
that the inquiry can do the best work that it probably can.
We know
that there is sensitive solicitor-client information but we're also in this time
in our history in the province where there is a growing mistrust, a growing
mistrust in government because of the abuse of our democratic processes, because
of the abuse of our democratic safeguards, and that's the zeitgeist in which
this inquiry is happening. The inquiry is happening because of that as well.
Mr.
Speaker, it only makes sense that people will be highly suspicious and that
people will have questions. One of the great philosophers, St. John of the
Cross, said: Endeavor to be inclined to be suspicious. I believe that's the
zeitgeist that we're living in here right now in our province, again, because of
the way we've seen Muskrat Falls rammed through beyond the joint panel and taken
out from under the Public Utilities Board. We are working in the reality of an
attitude that mistrusts government who has abused our democratic processes and
protections. That suspicion will be there, and rightfully so. I think that's
healthy. But we have to make sure, then, that this amendment, in and of itself,
does not create any further mistrust or suspicion.
I look
forward to asking some questions in Committee to ensure that we are doing this
in the best way possible, to ensure openness and transparency so that the
Commission can do the best work that they can do and that they are resourced
properly, whether it be financial resources or legislative resources that
support them in the work they have to do.
Mr.
Speaker, I have not much more to say. The inquiry, let's make sure they have
what they have to get down to business to do the important work that they're
doing. Again, I have some questions that I will ask during Committee. Questions
like how is that deemed whether something is relevant or not. Certain pieces of
information that is not relevant should not have their privileges removed, but
pieces that are relevant, is the solicitor-client privilege removed from those?
I'm not sure, so I'm sure the minister will be able to answer that for me.
We know
that our Commission has broad powers and that's really important. We have to be
sure that we do not mess around with that very fundamental piece to our justice
system, which is the protection of solicitor-client privilege.
We owe
this to the people of Newfoundland and Labrador. We owe it to the workers at
Nalcor. We owe it to the Land Protectors and the Grand Riverkeepers. We owe it
to our indigenous communities and indigenous governments. We owe it to the
people who have gone to prison who have protested this project. We owe it to
them.
We owe
it to the activists. We owe it to the towns in Labrador and Happy Valley-Goose
Bay who saw the downside of the megaprojects in their towns, seeing rising
housing costs, seeing shortage of housing, seeing some of the negative sides
that happen with megaprojects.
We owe
it because this is about the people's money, the people's money that was spent
in Muskrat Falls, the people's money that is being spent on this inquiry. It's
not going to be a little bill, but it's important work. We owe it to the people
to help restore their confidence in their government and in their democratic
process.
Thank
you very much, Mr. Speaker. I look forward to asking questions in Committee.
Thank
you.
MR. SPEAKER:
The hon. the Member for Mount
Pearl - Southlands.
SOME HON. MEMBERS:
Hear, hear!
MR. LANE:
Thank you, Mr. Speaker.
I'm
pleased to rise in the House and speak to this bill.
Mr.
Speaker, I guess what this bill is all about is something that's very important
to the province and is certainly something that's very important to me
personally. It's something I have a lot of concern about.
Mr.
Speaker, I can remember at the time when we sanctioned this project and I
distinctly remember leaving the caucus room, going out to the lobby there when
we had the sanctioning party or ceremony, whatever you want to call it. I can
remember saying to the Premier of the day, this was a really proud moment. This
was a time we were making history. We would forever be in the history books
associated to this, and I really believed it. I really believed it and I was
really proud.
There's
a picture I've seen in the media, CBC, some of the news stories from time to
time when they go back with some of the memories of Muskrat Falls. There's a
picture of that sanctioning event, and the Premier is there. Right to the right
of her, I'm stood there in the background clapping, smiling. Because I honestly
believed, based on the information I was provided, that it was the right thing
to do, that it was a good project. I believe all my colleagues at the time, I
believe they also believed that.
I knew
no more than anybody else in the general public knew. I can't speak to what
everybody in the Cabinet or the, I'll call it the inner Cabinet may have known.
I have no idea. I just know what I knew as a Member of caucus. I believed at the
time we were doing the right thing, and I was proud of what we were doing. As I
had said to the Premier at that time, this is such a proud moment. We will be
forever in the history books on this project.
Little
did I know, and I mentioned that for a reason, Mr. Speaker, because as we fast
forward now and I look at this project, one thing that hasn't changed is the
fact that my name will always be associated to voting for this project. That
hasn't changed. Where we've gone with this project has changed, but the fact
that I will forever be associated to voting for this will never change.
That's
why this is so important to me personally, as well as to the people of
Newfoundland and Labrador, because I want to get to the bottom of what happened.
I want the information, as do the people of Newfoundland and Labrador; how we
got from $6.2 billion at the time, the DG3 numbers, which at the time included
the fact that the North Spur issue was taken care of.
I've
said in the House of Assembly before, I can remember prior to sanction going to
Nalcor's AGM at the Holiday Inn and a member of the public stood up and asked
the CEO of the day about the North Spur. He deferred it to the project manager
who stood up and said: Yes, the North Spur, we've been aware of, definitely have
all the information. This is nothing new. We have a solution and that solution
is included in the DG3 numbers which, at the time, was $6.2 billion, not $12.7
billion and climbing. That's what it was.
The
issues about methylmercury, they came out, it was brought up and they said:
Yeah, methylmercury is definitely a concern that can happen with these kinds of
projects, but we are confident that we have a solution to the methylmercury
issue. Again, all this at the time was included in the DG3 numbers, or as some
people have said to me before the g.d. DG3 numbers.
I
absolutely want to get to the bottom of what went wrong, who knew what when. At
the very worst, activities have taken place throughout the course of this
project that are criminal in nature, possibly civil litigation issues as well.
At the very best, I would suggest absolute total mismanagement on somebody's
behalf or a group of individuals or a combination of it.
Something has gone terribly wrong, Mr. Speaker, and we all need to know what
that is. We all need to know what went wrong. That's why it's important, it's
critical that every possible shred of evidence, every possible shred of
information that can come forward, does come forward so that we know exactly
what happened.
I'm
prepared – as I've done in the past, I'll stand up in the House of Assembly and
say: I have a responsibility, I voted for it. I didn't do so in malice, but I
voted for it. Why would I do so in malice? Because I have to pay the electric
bills like everyone else. I've got a grandchild on the way. At some point in
time he's going to have to pay for it. So I would have no reason to support
anything if I didn't think it was going to be in all of our best interests, but
something happened and we need to find out what that was.
Even
more importantly, somebody has to be held accountable for it. That's another
concern I have that's not related to this bill. I don't want to digress too
much, but accountability must come part and parcel with this whole process.
If
anything that has gone on has been fraudulent or criminal in nature, I have an
expectation that charges will be laid. If anything has gone on that requires
civil litigation or makes some of these contracts that were signed up for null
and void, then I have an expectation that there will be a process in place to
hold people accountable.
If it's
been determined that there's been gross negligence or mismanagement, then I have
an expectation that pink slips will be handed out at some point in time, if they
haven't been already and probably should have been. But there must be
accountability in this whole process.
Getting
back to this particular bill – if I ever got to that bill, maybe starting with
this bill and I appreciate the latitude, Mr. Speaker. What's being asked for
here, basically, is the commissioner will be going to various entities and has
gone to various entities of government and Nalcor and so on requesting
information. Of course, we have this thing called client-solicitor privilege
which could preclude any parties from disclosing information, whether that be
private third parties, whether it be government departments, whether it be
Nalcor.
I do
understand what government is doing. In an attempt to make it easier – if I can
put it that way – for disclosure to occur, we're putting in this amendment.
Basically what's being said is that – and this has been, I think, alluded to
already – because the requests that the commissioner may have made to different
departments and divisions are broad, what the department is saying is we'll hand
over the file. But if there are portions of this – and you can pick through this
file and you can pick out all the relevant things that are relevant to the
inquiry.
If there
are other things that are contained within this file that are not relevant to
the inquiry, then that information stays protected. Because without that
amendment, once the file is handed over, then it could all released publicly and
so on, and there could be things in the file that have nothing to do with the
inquiry but they could be detrimental to us as a province and so on if it got
out.
For
example – and I'll just use this as a random example – maybe in the file there
are some legal opinions from the Department of Justice around Newfoundland and
Labrador's relationship and legal relationship with Quebec, perhaps, maybe
around the Upper Churchill, something that really has nothing to do with the
inquiry but is all thrown in the one big legal file on Muskrat Falls, the Upper
Churchill and so on.
There
could be something that would be negative that if Quebec Hydro could get their
hands on it, they could use that against us in future negotiations on the Upper
Churchill; or if they were to challenge something in court related to the Upper
Churchill or so on, they could use that information against us because we have
legal opinions from our own government giving an opinion which is deferential to
our cause. I'm not saying that's what's there. I have no idea what's there, but
that was just an example.
I do
understand the rationale for trying to make it easier for government
departments, Nalcor and so on, to provide as much information as possible while,
at the same time, having some assurances that when they hand over the file, if
there are things in that file that are not related to the inquiry that could do
harm to the province as a whole, then that information is protected. And that
makes good sense to me. I can't see why we would not want to support it.
I guess
the question or the concern I would have, as has already been alluded to by some
of my colleagues here I think, is who is going to pick and choose what
information is relevant and what information is not relevant. I guess the
commissioner will but if there's a file and there's a lot of broad information
here, will there be things that perhaps should be included that don't get
included and so on. That's the concern people have because people are, I guess,
not necessarily trusting the process.
Not that
it's a bad process, I think it's a good process overall, I really do; but, since
the onset, every time people hear anything about Muskrat Falls, anything about
Nalcor, people look at it with a jaundiced eye. I have no doubt that from the
departmental point of view they're going to hand over as much as possible. I
understand that the Cabinet papers, Cabinet documents are all going to be there
for the commissioner, which is good. I want to know what the Cabinet of the day
knew, what the premier of the day knew, what the minister of the day knew,
especially if it's anything I didn't know. That needs to come out and I think
that's a good thing.
I am
concerned, to some degree, around Nalcor can still claim attorney-client
privilege with what they turn over to the commissioner. I'm not sure what
instructions, if I can use that for lack of a better term, what discussions have
happened between the Minister of Natural Resources, the Minister of Justice with
the CEO of Nalcor. I would hope that in the spirit of putting everything out
there that the CEO of Nalcor is not going to try to claim client-attorney
privilege on everything.
I think
that's a concern that people would have that Nalcor would potentially try to
bury information that's detrimental to what went on and try to hide behind
client-attorney privilege. I think that's a legitimate concern that people would
have.
Albeit,
we have a new CEO and we have a new board. So, hopefully, given the fact that we
have a new CEO and a new board, I would hope they would put out as much
information as possible and not try to hide anything. But I suppose that
question will always be out there because there are a lot of people that have
their minds made up already that there's definitely a smoking gun or two or
three or 10, that they're there. People believe that everything will be done to
try to hide that information.
I don't
know, I can't say if there are any smoking guns. I honestly don't know. Anyone
who has asked me about it, I've said to them: I don't know. Do I have concerns?
Yes. Do I believe that there's a lot of stuff that went on that we all don't
know about? Yes. Do I believe this has been mismanaged? Yes. Do I believe
anything criminal took place? Maybe, I don't know. Do I think anything happened
that would involve civil litigation issues? Maybe, I don't know. I honestly
don't know if it did or if it didn't. I don't know, and I'm not accusing anybody
of anything because I don't know, but I want to know. And the public want to
know and the public deserve to know.
Again,
it ties back to the fact that anything we can do to get every shred of evidence
and information to that inquiry, we need to do it – everything we can do. While
I understand the rationale for this, as I've already talked about and others
have talked about, I do have some concerns in the fact that I'm hoping that
there's no way that this is going to somehow add to this whole idea that
information can be hidden. I don't think they can because attorney-client
privilege could be claimed at any time. As a matter of fact, Nalcor could say
attorney-client privilege we're not giving you the file, period. I guess the
government could do the same. At least now, this is making it easier to put out
more information, which is the idea.
I think
it's a good thing but, unfortunately, the problem we have is people will never
be confident that every single thing that could have come out came out. People
will always wonder were things hidden, and I guess there's not much we can do
about that. We can only go through this process. We have an independent inquiry,
we have a commissioner who's a judge, he's an independent person, well qualified
and we can only hope that this is done properly, fairly and that everything
comes out.
There's
no doubt that when this process is over and whatever comes out and whatever
conclusions are reached, there's no doubt there will always be some people who
will not believe certain things and say stuff was hidden; we can't control that.
We have no way of controlling that, but we can certainly make sure that a proper
process is put in place and that as much information as possible is put out
there for the public to view.
And of
course, the other piece I talked about earlier, we have to hope that there's
going to be a mechanism in place to ensure accountability. Because under the
terms of reference for the inquiry, the commissioner has no authority to
recommend charges or civil litigation or anything. It's spelled out; he can't do
it.
That, by
the way, is not different from any inquiry. Apparently all inquiries are the
same. I spoke to Mr. Learmonth about it and he told me all inquiries are the
same. I have no reason to disbelieve that, but I hope – and I say it for the
benefit of the Minister of Justice and I've written to him about this before.
I hope
there will be some sort of external process, if I can call it that, running
parallel to this inquiry that will involve somebody in law enforcement, somebody
from a legal litigation point of view and somebody from an HR point of view
monitoring everything that's going on at this inquiry, all the information
that's coming forward and is prepared if – and that's a big if – if the need
arise and if the evidence shows is prepared to do what needs to be done in terms
of holding people accountable, whether that be criminally, civilly or whether it
be handing out pink slips, if that's what's necessary.
Accountability is key. If we don't have accountability, it's just as well –
we're wasting our time. It's good to know what happened. It's good to say, what
can we do on a go-forward basis? Obviously, that's critical, where to from here,
but there also has to be accountability. We have to make sure that if something
happened that shouldn't have happened, then the people responsible are held
accountable for the actions or decisions they made. I cannot emphasize that
point enough.
With
that said, while I do have some similar questions as other Members do, which I'm
sure will come up in Committee about who decides what information is in and out
and that process. On principle, I do agree and I will be voting for the bill.
Thank
you.
MR. SPEAKER:
The hon. the Member for
Topsail - Paradise.
MR.
P. DAVIS:
Thank you, Mr. Speaker.
I appreciate the opportunity to get up this afternoon
and speak to this bill, Bill 35, which is going to amend the
Public Inquiries Act.
I'm not going to repeat everything that's been said by
Members earlier, but maybe just pick up on a comment that my colleague for Mount
Pearl - Southlands just commented on. He was speaking to one of the co-counsel
who said all inquiries are the same. It's interesting to note that this is
coming now.
I understand the inquiry that's underway right now is
likely different from any inquiry and will be a different volume of information,
and I understand all of that. Then it will be a different volume of information
as has been seen in inquiries in the past, even though there have been some
very, very serious and very complex inquiries held in this province in the past.
My
concerns – and I'm not going to belabour them too long here this afternoon. I
tend to ask for some clarification when we get to the Committee stage. I'll ask
for clarification from the minister, but I just want to go on the record first
and foremost to articulate and repeat comments I've made in the past, that we
supported the inquiry.
We were
very early to ask the government to hold the inquiry. We've asked for that. We
support the inquiry. I clearly articulated my belief and need for openness and
transparency on the inquiry as well. I've quite clearly said I have nothing to
hide. I want a full, fair and frank inquiry to take place and to be conducted.
When
this bill came forward I looked at it, and I've probably read it 50 times. It's
very brief. It's very, in some ways, simplistic in how it's written.
The
Explanatory Notes, I think, are about 34 words in total, which is not a lot.
Sometimes we see Explanatory Notes that are very lengthy and some that are very
brief, and this one is very brief. It refers to, the “Bill would amend
the Public Inquires Act, 2006 to
confirm that immunity or privilege is not waived where the Crown or a person
designated by the Lieutenant-Governor in Council discloses information to a
commission or inquiry.”
It also
says besides that, and listening to – the minister did a briefing with the media
today. While it was a media briefing, it wasn't a briefing for us today but I
did watch some of the commentary and follow along, and there seemed to a little
bit of difference of opinions from the media as to what this was about and what
was happening.
One of
the comments from the media was that: Well, all the information is going to go
to the commissioner, go to the commissioner of the inquiry. The commissioner
will review it, and then the commissioner can say: Well, I want to release this
particular document, or a document or documents, and will go back to the
government and say essentially – when I say government, I mean globally
government, from Nalcor and government – go back and say we want to release
this. Are you going to waive privilege? Then the government could have the
decision power to say if they're going to waive privilege or not.
Mr.
Speaker, we want an inquiry that's going to function properly and efficiently
and effectively, but the reality is we live in a world here – we live in this
House of Assembly where we sit on two different sides of the House, and there's
a reason for that.
Members
on the government side, and, in particular, Cabinet ministers, having elected
the most Members, the party on that side of the House gets to form a government
and other parties get to form the Opposition or become part of the Opposition.
In this case, we have two Opposition parties and an independent. All are
entitled to their own views and to enter into debates and so on, but there's
still a partisan aspect of the process that we have. The government is partisan
by its very nature and also has control over how a government operates.
I
referred to the bill as simplistic. Even more so, I believe its simplicity may
be dangerous and we should exercise and show caution on it.
I want
to be clear, Mr. Speaker, I'm not speaking about any particular Member of the
government in my comments today. My reference is to what power comes from this
particular bill.
We have
a new ATIPP, access to information, that everybody in this Legislature is very
familiar with and most people in the province are very familiar with. Members
opposite like to reiterate during debate and heckling and so on and remind us of
access to information.
When
Justice Wells reviewed the access to information legislation, or the process.
When he wrote his report he made some very interesting comments. One of the
points that exists as a result from Justice Wells report – just a moment, Mr.
Speaker.
In his
conclusions, he references how process and privilege – he talks about privilege
and solicitor-client privilege. He talks about as well: the committee concluded
that in addition to retaining the current section 31(1), the act should also
contain a new section to provide that where a public body can refuse to disclose
information to an applicant under one of the exceptions listed below – and there
are a number of exceptions there including legal advice, confidential
evaluations, local public body confidences, disclosure harmful to financial or
economic interests and so on. Then he also refers to: that it would not apply
where it's clearly demonstrated that the public interests and disclosure
outweighs the reason for exception. That was in the comments that Justice Wells
made.
Mr.
Speaker, the process under access to information, if someone is to file an
access to information request with the government, they file the request under
very clear guidelines of the current legislation that was developed by Justice
Wells, then the government or government agency, board or commission, or the
agency that receives funding from government then has a period of time and a
period of steps they have to follow under the legislation to respond to that
access to information.
If under
one of those sections that I just read on disclosure and exemptions to
disclosure, and if a government department, for example, said: No, that's
Cabinet confidence, we can't release that; or that's a legal opinion,
solicitor-client privilege, we can't release that; or if one of those
circumstances existed, disclosure harmful to intergovernmental relations,
harmful to financial economic interest of a public body, and so on. If any of
that happens and the person requesting the information for ATIPP goes well, I'm
not satisfied with that answer from the government, then they can appeal it.
They
appeal it to the commissioner. The commissioner, who is an independent Officer
of this House, has the right to say to government, let me look at the document,
let me look at your response, let me see what they've asked for and can say yes,
I support the decision of government, that they shouldn't release that because
of this exemption; or I don't support the government and I think they should
release the information, or part of it, or they haven't done their due diligence
or whatever the case may be. It goes back to an independent person, being the
Privacy Commissioner in the province, to have that ultimate authority to decide
what gets released and what doesn't get released.
What I
understand from reading some information from the media today – and I've
attending a briefing, by the way; we actually had two briefings with officials.
I appreciate and thanked them for it. I attended one of those briefings and
still had difficulty in trying to fully understand the purpose, intent and
reasoning for this bill. If I'm the only person in the world who is challenged
by that, then I apologize but I really can't. I'm really trying to understand
exactly what this is about.
But what
we have here, by watching and following what I've been able to capture on the
intent of the bill, is that the commissioner can say okay, here's a piece of
privileged information, if it's Cabinet privilege or solicitor-client privilege,
whatever the case may be, we need this released to be part of the inquiry. Then
it can go back to the government, whoever that happens to be, whoever in the
government makes that decision – we don't know that – and say we're going to
allow it to be released or we're going to maintain the privilege and, therefore,
it can't be released.
Here
comes the problem, Mr. Speaker, a number of problems; we don't know what the
process is going to be. We don't know how that's going to take place. Who makes
those decisions? How are those decisions made? In a briefing with officials, we
asked could they cherry-pick. The response was well, no, they're not going to do
that; they shouldn't do that. But when we really asked about it, could they
really pick out part of a decision or fragment decisions or something before
election 2015 versus after election 2015, how do we know if they're treated the
same and so on, yes, that could happen, but we don't think that's going to
happen.
So my
comment in simplicity is dangerous, is because I have concerns about it. We
don't know who is going to make the decisions. We don't know what the process is
going to be. Our understanding is – and the minister when we get into Committee
or in closing debate might want to comment on it, who actually is going to make
the decisions of what's given, what's relieved and what's not. We have a number
of those concerns.
As
legislators, we all have a responsibility to vote for a bill and we just
shouldn't sit idly by. As a group, a caucus in the Opposition, we've had great
discussions about this particular bill in trying to understand why is the
government doing it and is there something here we don't know about. Is there
something here that there's intent here or something that we don't know about?
We've had different views on it and different discussions about it, and that's
what should happen. But each Member here and on the government side can vote for
it, can vote against it or can ask for amendments. That's what our
responsibility is. Either we support the bill, we're satisfied with the
information we know about it, its intention, what the impact and effect of it's
coming into power will be, or we don't. And if we don't and we're not satisfied
with it, we can vote against it, or we can also bring forward suggestions for
changing the bill.
Mr.
Speaker, I really don't want to get in any way confrontational on this because
this is a very serious matter. We want to see a full, fair, frank, open and
transparent process and one that's effective and works for the inquiry as well,
but we also don't want to see a case where somebody in a position of being able
to make a decision takes an action in protecting of information from public
disclosure. We don't want that to happen either, and we don't know how that
process is going to take place.
We have
some concerns, I have some concerns and, hopefully, the minister, in closing
maybe can address some of those concerns and maybe he can respond to some of
those concerns in his comments.
Mr.
Speaker, I look forward in Committee, I have a few questions. I'm going to ask
to see if we can get some explanation and maybe we can get some that will
satisfy some of the inquires and questions that we have, and maybe it won't;
we'll see when it gets to Committee. At this point in time, I think there are a
lot of unanswered questions. Again, the simplicity of the bill, to me, is a
problem. Every time, as I saw with the media today, that we have someone who
listens to information, they interpret it different – and I saw it in the media
today, two different interpretations of what the media heard in the briefing,
and that's a problem.
Thank
you, Mr. Speaker.
SOME HON. MEMBERS:
Hear, hear!
MR. SPEAKER:
If the hon. the Minister of
Justice and Public Safety speaks now, he will close debate.
The hon.
the Minister of Justice and Public Safety.
MR. A. PARSONS:
Thank you, Mr. Speaker.
Certainly I plan on speaking to the closing of this, but prior to doing so
there's some housekeeping to take care of. So at this time, I would move to
adjourn debate on Bill 35.
MR. SPEAKER:
The hon. the Government House
Leader.
MR. A. PARSONS:
Thank you, Mr. Speaker.
At this
time I would move, pursuant to Standing Order 11(1), that the House not adjourn
at 5:30 p.m. today, Tuesday, March 6.
MR. SPEAKER:
All those in favour, ‘aye.'
SOME HON. MEMBERS:
Aye.
MR. SPEAKER:
All those against, ‘nay.'
The
motion is carried.
The hon.
the Government House Leader.
MR. A. PARSONS:
Thank you, Mr. Speaker.
At this
time, I would call from the Order Paper, Order 5, second reading of Bill 35.
MR. SPEAKER:
The hon. the Government House
Leader.
MR. A. PARSONS:
Thank you, Mr. Speaker.
I'm
going to take some time now fairly quickly to go through the comments I heard
from my colleagues across the way. I appreciate their commentary, and I
appreciate the fact they spoke to this bill. Some spoke certainly at length to
this amendment to the bill. There are a couple of things I find interesting.
Here's what I find interesting.
The
independent Member supports what we're doing. The Third Party, the NDP, have
indicated that while they have questions, and certainly questions is a part of
it, they are supportive in principle, my understanding, of this bill, although
they have questions. They understand the merit or the logic behind it. But it's
interesting that it's the Official Opposition, the PCs that took an ample amount
of time to stand up and say why they don't agree with this bill. And that's
interesting; that's very interesting.
Just
speaking in general, I reference – and again, just for people who are watching,
this is not an adversarial process. The fact is we stand, we speak, we disagree.
When I look at the Member for Conception Bay East - Bell Island, I consider him
a good person. So what I'm going to say is certainly not personal, it's
business.
I can't
use the exact quote, but it reminds me of that movie
Billy Madison. And there's a part in
Billy Madison where he stands up and does a debate, and everybody's
cheering, and at the end of the debate the moderator says – and I'm paraphrasing
here – what you said makes absolutely no sense whatsoever. And unfortunately the
Member for Conception Bay East - Bell Island is the Billy Madison in this
equation, because what he said makes no sense whatsoever. It's no sense.
And
again, what he's saying – he took an hour and I didn't say anything while he
spoke – but what he's saying is, in many cases, inaccurate. It's not right. It's
not factually supported. It is incorrect. It is contrary to what the bill is
saying.
I don't
know who attended the briefing for the Official Opposition because we offered
briefings, but what was said by the PCs was not the same as what was done in the
briefing. It's two different things altogether.
What I'm
going to do, I'm just going to reference just a few things here. I look forward
to the Committee stage and, certainly, I'll try my best to answer questions and
just a few points here. I've taken the time to go through this so I apologize
for the jumble that is in there.
The
inquiry is going to get all of the information that they want with or without
this amendment. This amendment has nothing to do with that. This amendment is
about solicitor-client privilege. The inquiry doesn't decide who has
solicitor-client privilege. As we've clearly explained, they want a tremendous
amount of information in a short period of time so the inquiry can happen as
quickly as possible and with smaller expense. Again, we already know the cost of
the project; the inquiry is not going to be a small cost either. What we're
suggesting is to protect government's interests; it's to protect their
interests. It's to protect the people's interests.
There's
not a clear understanding of how this works by the Official Opposition on this.
The amendment has nothing to do with preventing the Commission from getting
information – nothing like that. They've asked for a tremendous amount of
information. That's going to be provided but if you just give it over without
protecting solicitor-client privilege, that privilege is lost forever. Why would
you do that? That's ridiculous. It's absolutely ridiculous.
The
other thing the Member forgets is that with or without this amendment government
has, is and will in the future be able to protect privileged documents. This
doesn't change that. It doesn't change solicitor-client privilege in no way,
shape or form. This legislation also does not in any way, shape or form create
new powers or new grounds to withhold information. To suggest otherwise is
misleading. It's inaccurate. It's wrong. I can't say that clearly enough. To
suggest that this has anything to do with withholding information is not
factually correct.
No new
grounds to refuse to disclose, not at all. This is about getting it all over
there as soon as possible. So that's just one of the things that I want to talk
about. Another one of the points that was brought up – I've marked notes down
all over – was there seems to be a thinking that without this amendment there's
no solicitor-client privilege.
Solicitor-client privilege exists with or without the amendment. It's still
there. It exists. Again, it doesn't expand it, it doesn't change it, it doesn't
dilute it, it doesn't create any new privileges, it doesn't create any new
immunities – none. To say otherwise, shows a clear misunderstanding of the
legislation.
When we
talk about putting information out there – because I think the Member opposite,
the first speaker, the Member for Conception Bay East - Bell Island, said
something about the Liberal government. The briefing that was done on this was
done by civil servants. They weren't hired by the Liberals. They were there
before we ever got in. It's not political. This is not even close to political.
These are long serving public servants whose job is to work in the best
interests of the government and Newfoundlanders and Labradorians. That's their
job.
These
same people all worked for them when they were in government. So what I'm doing
here is I'm upholding the requirement to protect the long-term interests of our
government. I have to uphold solicitor-client privilege so that we avoid a
future disaster. That's what we're doing. That's what is going on here. If we
just give it over without protecting it, there is a tremendous amount of
sensitive information that has nothing to do with Muskrat Falls that the
Opposition is suggesting hand it over, why would you protect that. We're
protecting us from litigation in the future. That's what we're doing.
Again,
well, you put out the inquiry and now you're – yes, we want it all out there; I
can guarantee you there's nobody here that has anything to hide – nothing. I
didn't sanction it. I didn't vote for it; I know that I didn't do that. I want
it all out there just like everybody else does, including Members on the other
side. I know there are Members on the other side, the NDP spoke about it, the
Member for Mount Pearl - Southlands spoke about it, they want it out there. We
all want the information out there.
This is
not about refusing information. To suggest that it is, is just not correct. This
is for the best interests of the province as it relates to our future interests
in other litigation issues that privilege is required for, that have nothing to
do with this in many cases.
Just so
we know, solicitor-client privilege would have operated in every other context,
for any other summons, for information in any other inquiry. It hasn't changed.
To suggest otherwise, is simply incorrect.
Now, I'm
going to continue on. One of the comments by the Leader of the Opposition was
that the word simplistic was used and that scares him. Again, I apologize. I
don't think I used that term. I don't believe I used the term simplistic.
Whenever I speak to a bill, I talk about the size of it.
If
anything, if I thought it was simplistic, there are many pieces of legislation
in this House that we never do a technical briefing. They just don't require it.
In this case, we wanted everybody, we wanted to media to see this and understand
it, to be able to ask questions and not just rely on debate that they hear here
in the House. We wanted to put it out there.
It
wasn't me giving the information. I answered questions after. It was done by
civil servants in the department. So we want it out there and to suggest the
power that this bill gives government, that's ridiculous. This bill doesn't give
any power to government. This bill protects government-solicitor-client
privilege, something the existed before us, now and will continue long after
we're here. That's what it does. That's the purpose of it.
Don't
get me wrong, Mr. Speaker, we have no problem answering questions and asking
questions. I've sat on that side. I know what it's about, asking questions.
That's what you have to do, but to stand up and make comments that are
completely inaccurate shows a lack of understanding about the purpose of the
bill. To put that out there as gospel is not right. It's not fair. So you can
ask the questions and we'll provide the answers.
You can
say that you disagree with it. That is fine. There are lots of things that
government does that people disagree with, Opposition, whoever; that's how this
works. Government puts policy in, but I would remind people, this is about
protecting government information, a lot of it which was in the hands of
government before we were ever here. This is in the hands of government now and
in the hands of governments in the future.
I have a
really good description here I'm going to go through because, as the Members
opposite have said, this is certainly not simplistic. It is complex; that's why
we have to take the time to discuss it. We had a lot of conversations within the
department about explaining this so that people would understand what it is
we're trying to do.
Government, we, are calling this inquiry and we want to give to the inquiry all
the information we can to fulfill the mandate, the terms of reference and
determine how we got there. I've said that on multiple occasions. We want the
inquiry. We want it to have everything. We got nothing to hide. Let's put it all
out there. But consistent with this inquiry is the fact that, like others
before, there is a huge demand for documents. This is the highest. I have no
doubt this is higher than Cameron or higher than any other.
The
demand catches privileged documents. The demand is huge. It spans well over a
decade; a huge number of areas. It covers a lot of ground. These documents are
solicitor-client privilege, something that existed before. This is not something
new we're creating.
Such
privileges, as I've discussed – and I gave, I thought, a pretty decent Supreme
Court analysis of how important and fundamental solicitor-client privilege is.
It's fundamental to the legal system. It's fundamental to us. They protect
information from having to be disclosed in legal processes or they limit the
situations where they do have to be disclosed.
It's not
solicitor-client, there's other information that's protected under ATIPPA.
Whether that's Cabinet confidence, basically, police files when it comes to
personal information, when it comes to health information. There's a lot of
information that's protected.
Solicitor-client is the most common, and it protects legal advice being given to
government from having to be disclosed. I think one can easily imagine why that
might be detrimental to government, for government to give up all its legal
advice to people outside that aren't government.
The
problem with the privileged documents is that when you give them over, it's not
a partial waiver or a waiver for a period of time, it's permanent. It's
complete. It's forever. Disclosure to anyone – anyone – waives the disclosure
for everyone.
I think
I've made that clear. Giving this over without this protection that this bill,
this small amendment here – which is not huge in size – that's what we're doing
here. It's either are they privileged or are they not. That's a determination
that has to be made.
You
don't waive privilege on one thing and not on another. It's comprehensive.
Waiving the privilege over some documents on a certain matter or a certain issue
will waive everything associated with that matter. For example, if we disclose
to one person of a legal opinion on an issue, that can be used to argue that
government has waived its privilege against the world. We've waived it to all,
and all documents and all materials. That's the argument that would come against
government.
So in
the context of this inquiry on some of the documents, government finds itself in
sort of a Catch-22 type situation. We want to disclose the information. As I've
said, I didn't vote for this. I have nothing to hide – nothing. I want it all
out there, but we want to give the inquiry everything they want. Of course we
do. We want them to have it, but some of what they've asked for isn't relevant
to the terms of reference which I have a copy of here. It's not relevant to it.
As I've said, that's very clear; but, just because it's not relevant doesn't
mean we want to sit there and make that discretionary case. We want to give it
all over. Here Commission, here Justice LeBlanc, you make the decision.
We want
to respect the summons they've given us. We want to respect the order they've
given to us, saying give us all this information. We want to deliver that. They
will make the determination.
Let's
keep in mind that this is a project that's not finished. This is an issue that's
still a live issue. This is not something that's over and done, case closed,
matter closed. This is still ongoing. This is still happening as we speak.
Some of
the other issues, other than Muskrat, are broad and have ongoing issues that are
quite significant. They're going to have a very long lifespans, legally
speaking.
Disclosing the documents may waive privilege and it puts us in a position where
government will lose and will suffer damages. Mr. Speaker, I think we've already
suffered enough damages with this project right now.
SOME HON. MEMBERS:
Hear, hear!
MR. A. PARSONS:
This is a project, the Member
has referenced, $6 million, $6.4 when it started. It's gone past that.
The
intention of this amendment right here that we've put forward is to remove the
Catch-22. It will permit us to disclose anything and everything, whatever the
inquiry wants, and we don't have to worry about the implications of doing so. We
don't have to worry, what did we give up, what did we give away. We still retain
the ability to assert privilege on these documents. It allows us to fully engage
rather than sit there and go through everything and not disclose certain things
and disclose other things. That's not what we want. We want it all over there.
Mr.
Speaker, I'll get an opportunity I'm sure during Committee to answer the
questions that come forward. As I always do, I will try to the best of my
ability to explain or give answers. I will try my best.
The
Members opposite referenced about the best interest of Newfoundland and
Labrador. Well, I can guarantee you, that's what we have in mind with this
inquiry.
On that
note, I will sit, take my seat. I appreciate the opportunity to speak to this,
and I look forward to this bill going to Committee.
Thank
you.
SOME HON. MEMBERS:
Hear, hear!
MR. SPEAKER:
Is the House ready for the
question?
The
motion is that Bill 35 be read a second time.
All
those in favour of the motion, please signify.
SOME HON. MEMBERS:
Aye.
MR. SPEAKER:
All those against, ‘nay.'
This
motion is carried.
CLERK:
A bill, An Act To Amend The
Public Inquiries Act, 2006. (Bill 35)
MR. SPEAKER:
This bill has now been read a
second time.
When
shall the bill be referred to a Committee of the Whole House?
MR. A. PARSONS:
Now.
MR. SPEAKER:
Now.
On
motion, a bill, “An Act To Amend The Public Inquiries Act, 2006,” read a second
time, ordered referred to a Committee of the Whole House presently, by leave.
(Bill 35)
MR. SPEAKER:
The hon. the Government House
Leader.
MR. A. PARSONS:
Mr. Speaker, I move, seconded
by the Minister of Health and Community Services, that the House resolve itself
into a Committee of the Whole to consider Bill 35.
Thank
you.
MR. SPEAKER:
It is moved and seconded that
I do now leave the Chair for the House to resolve itself into a Committee of the
Whole to consider the said bill.
Is it
the pleasure of the House to adopt the motion?
All
those in favour, ‘aye.'
SOME HON. MEMBERS:
Aye.
MR. SPEAKER:
All those against, ‘nay.'
The
motion is carried.
On
motion, that the House resolve itself into a Committee of the Whole, the Speaker
left the Chair.
Committee of the
Whole
CHAIR (Warr):
Order, please!
We are
now considering Bill 35, An Act To Amend The Public Inquiries Act, 2006.
A bill,
“An Act To Amend The Public Inquiries Act, 2006.” (Bill 35)
CLERK:
Clause 1.
CHAIR:
Shall clause 1 carry?
The
Chair recognizes the hon. the Member for Topsail - Paradise.
MR. P. DAVIS:
Thank you, Mr. Chair.
As
referenced in second reading by myself and the minister, I have a few questions
and hopefully we can clarify some of this information.
First of
all, Minister, can you tell me, in preparation of this bill, who have you
consulted with?
CHAIR:
The hon. the Minister of
Justice and Public Safety.
MR. A. PARSONS:
Thank you, Mr. Chair.
Certainly, there would have been a significant amount of work done within the
Department of Justice and Public Safety. I think, in fact, they may have reached
out to the Information and Privacy Commissioner. I'm not positive, but this
would have been something done by the staff solicitors within the department, as
is usually the case.
Thank
you.
CHAIR:
The hon. the Member for
Topsail - Paradise.
MR. P. DAVIS:
Thank you, Mr. Chair.
Minister, are you able to confirm through your officials if you did reach out to
the Privacy Commissioner. I'd be interested to know what his response was to
this, as the Access to Information and
Protection of Privacy Act actually requires the minister to consult with the
commissioner.
So,
Minister, I would like to know if consultation took place and what the response
was from the Privacy Commissioner.
I can
stand for another minute if you – you're good? Okay.
CHAIR:
The hon. the Minister of
Justice and Public Safety.
MR. A. PARSONS:
Okay, I will certainly check
and see if there was a consultation. But what I would say is that there is no
requirement to consult when it regards a privilege issue. That's something you
need to go to the Privacy Commissioner about. That's a determination that's made
by the solicitor, by the client. So we wouldn't have any requirement, even
though there's ATIPPA.
You'll
notice in the last page of ATIPPA there are always exemptions and things that
come ahead of ATIPPA. The other thing is that, again, I have spoken to him on a
number of occasions. When we have to, we do, and when we're not required to, we
don't. But again, I don't think we've done anything wrong here. I think we've
done our due diligence on this.
CHAIR:
The hon. the Member for
Topsail - Paradise.
MR. P. DAVIS:
Thank you, Mr. Chair.
I don't
agree with the minister. The access to information act, section 112 reads: “(1)
A minister shall consult with the commissioner on a proposed Bill that could
have implications for access to information or protection of privacy, as soon as
possible before, and not later than, the date on which notice to introduce the
Bill in the House of Assembly is given. (2) The commissioner shall advise the
minister as to whether the proposed Bill has implications for access to
information or protection of privacy. (3) The commissioner may comment publicly
on a draft Bill any time after that draft Bill has been made public.”
I
haven't heard the commissioner comment on it publicly, but section (2) outlines
that: “The commissioner shall advise the minister as to whether the proposed
Bill has implications for access to information or protection of privacy.” It
doesn't say the minister will decide; it says the commissioner will decide, once
he's been consulted with.
So,
Minister, if you could check with your officials or if you can reply to that, I
think it's very clear that in a case like this we're talking about release of
documents, we're talking about privilege, we're talking about, even in the
Explanatory Notes “confirm that immunity or privilege is not waived where the
Crown or a person designated by the Lieutenant-Governor in Council discloses”
it. It talks about solicitor-client privilege, immunity and privilege, and so on
is what the bill is about. All of those exemptions are included in the Access to
Information and Protection of Privacy Act. So I think it's very clear that the
minister has a responsibility to consult and I'd be quite interested to know if
he did.
CHAIR:
The hon. the Minister of
Justice and Public Safety.
MR. A. PARSONS:
Thank you.
I
appreciate the opinion of the Member opposite, but I take the legal advice of
the department's solicitors. And what they're saying is that this does not fall
under section 112. This does not have privacy issues or information issues; this
is a privilege matter.
So
again, the Member opposite may disagree, but that's where it is. I will take the
advice of the multiple solicitors within the department who've made this
determination. In fact, the last time we had this issue we discussed it at the
Management Commission. When we said a certain thing, the Opposition disagreed,
and then the Privacy commissioner came out and sided with us.
Again, I
take my advice from the solicitors. They're saying this is not a section 112
issue, and that the Member opposite's interpretation of the legislation is
incorrect.
Thank
you.
CHAIR:
The hon. the Member for
Topsail - Paradise.
MR.
P. DAVIS:
Thank you, Mr. Chair.
Minister, other than the officials in your department,
is there anyone else outside you consulted with? Any legal associations, the
Canadian Bar Association, the Newfoundland and Labrador bar association –
anybody outside of your department, outside of government that you consulted
with on this matter?
CHAIR:
The
hon. the Minister of Justice and Public Safety.
MR.
A. PARSONS:
I
don't think the Member opposite understands. We don't consult with anybody
outside to discuss government solicitor-client privilege; it's a pretty simple
process. We wouldn't ask the CBA or the Law Society to say whether this is
privileged or not. That's a determination that we make.
So, no, we didn't consult with anybody. There's
absolutely no duty to do that. I don't suggest it was ever – well, we haven't
done it. I can guarantee that it wasn't done in the past either.
CHAIR:
The
hon. the Member for Topsail - Paradise.
MR.
P. DAVIS:
Thank you.
He wasn't certain earlier if he actually consulted the
Privacy Commissioner, but he can guarantee that we didn't do it. So if that's
where the minister wants to go, that's fine.
Mr. Chair, I'd ask the minister if he could outline a
process. Let's use the example if a solicitor-client privilege document is sent
over to the commissioner and the commissioner is looking to waive privilege,
what's the process that would happen in order for that to take place?
CHAIR:
The
hon. the Minister of Justice and Public Safety.
MR.
A. PARSONS:
Again, I don't know if that's the debate for now but I'll certainly try my best
to speak to it.
Usually what happens is somebody makes a request for
information from any number of public bodies that fall under ATIPP. You would
review to see does it comply with the act, should it go out or not go out? If
you make the choice that it falls under solicitor-client privilege, the person
has a right to appeal that. That would go to the Information and Privacy
Commissioner and they would make that decision is my understanding of how it
works. I think that's been the same for a while now.
CHAIR:
The
hon. the Member for Topsail - Paradise.
MR.
P. DAVIS:
Thank you, Mr. Chair.
I did have a briefing with officials. I expressed my
appreciation to the minister and the department officials earlier for that
briefing. I also followed some commentary. I'm sure I haven't seen all of it,
but some commentary from the technical briefing that was done with the media
today.
There were discussions about if the commissioner wants
to release information, then one outlet suggested there would be a negotiation.
Another media outlet said words to the effect that the government would decide
where privilege would be waived or would not.
Minister, can you elaborate on it and give us some
indication of how that process would happen?
CHAIR:
The
hon. the Minister of Justice and Public Safety.
MR.
A. PARSONS:
Thank you.
As the Member knows, I can't decide what the media
wants to say or not say. What I can say is they were all privy to the same
briefing and the same
information that we gave, which would have been the same that were done in other
briefings. What's going to happen here is yes, there will be a process where we
work with the Commission as it relates to documents that they decide are
relevant and that there's privilege shared. The government, as has always
happened and will always be the case, makes the decision on whether they should
waive privilege or not. It's the client, not the solicitor, it's the client that
decides whether privilege should be waived or not.
Again,
this is something that we worked out, but I would note that the primary purpose
of this, as always, is to get the information over there. We want this inquiry
to keep going. One thing I would point out, just keep in mind here when we
brought out this inquiry in the first place, the Opposition complained that it
wasn't going to be done quick enough. Everything they're doing right now, their
suggestions on how this should be done would only delay the inquiry, so I get
confused.
CHAIR:
The hon. the Member for
Topsail – Paradise
MR.
P. DAVIS:
Thank you, Mr. Chair.
It's unfortunate the minister is confused and I
certainly don't intend to confuse him. We're in the House in a debate, we're not
going to rush through it just to pass a bill.
My words earlier, which he referenced, on simplicity,
they were my words; my comment was the simplicity of the bill is dangerous. I
agree that he can't say what the media is going to say, but my point is that you
have two different interpretations of the information provided by the minister
from the media who sat in the same room. You have one outlet that's putting one
lens or commentary on it; you have another outlet who seemed to have taken
something different from it. So that's why instead of us rushing this through,
it's important that we understand what the process is.
My commentary earlier about simplicity is that we don't
know what the process is, and the minister just commented – I think his words
were he can't answer to the exact process, and I could be wrong on that. I'm not
trying to put words in his mouth and I certainly don't want to do that. I'll ask
the minister again if he can give us some indication of what happens. He said
earlier anything and everything is going to be shared. That's two different
things, everything and anything. But if every solicitor-client privileged
document, every Cabinet document, anything that would not normally be released
because of a privilege of one sort or another, is all sent over to the
commissioner, who decides what's going to be waived and what' not going to be
waived?
CHAIR:
The
hon. the Minister of Justice and Public Safety.
MR.
A. PARSONS:
Thank you, Mr. Chair.
Certainly I'll try my best to answer, but I have to go
back to a point the Member made when he said about rushing this through. I can
guarantee you there's no attempt by us to rush this through. I sat on that side
when you invoked closure on Bill 29 and things like Muskrat Falls, so don't tell
me about rushing bills. You're the one that wouldn't allow the full debate on
the House. Don't tell me about Muskrat Falls and rushing debate. This is nothing
compared to what you did – nothing compared to what you did.
If he
wants to talk about rushing debate, and the Members over there – he's over there
saying: Do you want to go there? I would love to. Let's talk about the debate on
Muskrat Falls. Let's go back.
He talks
about what the media reported or not. I can't control what the media reports.
All I can control is that the information they received was exactly the same. We
had the deputy minister, the assistant deputy minister and a solicitor all sat
at the table. Multiple media entities were there. They asked questions, they got
answers. I came in after, we talked a bit. I can't decide what the media reports
or not. How is that even relevant to this?
What's
important is what's in the bill; what we discussed here. They've had plenty of
opportunity in briefings to ask these questions. I don't know if they did or did
not. I'll certainly try my best.
The
Rules of Procedure for the inquiry are on the website. It's there. It's
released. The Commission decides the Rules of Procedure.
What
we're doing here is we are protecting solicitor-client privilege of all the
information that goes over, the multiple reams of paper, of information that is
going over there. We're protecting government's interest. They go over there –
again, it will be figured out later what goes or not, because if it's a
privileged document, something that ATIPPA even says that solicitor-client
privilege documents are not covered here.
I don't
know where he's going with this, but I'll try my best to keep answering
questions.
CHAIR:
The hon. the Member for
Topsail - Paradise.
MR. P. DAVIS:
Thank you, Mr. Chair.
It's not
a complicated question I'm asking, Mr. Speaker. I didn't mean to upset the
minister just now. My question is very simple, and I appreciate the fact that
you have no control over what the media says, but my comment is two different
media outlets have taken away two different messages from the same presentation.
That's one of the problems here. There's a high level of uncertainty as to what
this is really about and what the process will be.
My
question is: Can the minister tell us what the process will be when deciding
what's waived privilege and what's not waived?
CHAIR:
The hon. the Minister of
Justice and Public Safety.
MR. A. PARSONS:
Thank you.
Again,
we come back to the media part. As I've said, I can't help what the media report
or don't report, whether it's accurate or not accurate. We try our best. All I
can say is the information they all got was the same, and the information we
gave was accurate.
What's
going to happen, it's all going to go over there. The Rules of Procedure, right
here, there's a long – the Commission of Inquiry Respecting the Muskrat Falls
Project has published Rules of Procedure. There's a website there and a link.
What I
can say is this amendment doesn't replace the rules that the Commission has
there. It doesn't change that. I think that's very clear. All we're saying here
with this process, with this amendment is the information that goes over that is
solicitor-client privilege will not be waived. There will be a determination
later on what to waive or not waive. You're not going to waive privilege on
something that's not related to it. Again, I would assume it would be a
case-by-case basis.
What I
would say though, unequivocally, is that the Members opposite need have no fear.
We're going to put everything there that we can without hurting government so
that the people get all the information. We are certainly going to do our best
to make sure that happens.
SOME HON. MEMBERS:
Hear, hear!
CHAIR:
The hon. the Member for
Topsail - Paradise.
MR. P. DAVIS:
Thank you, Mr. Chair.
I'll try
to make this simple. The minister just said there will be a determination later
as to what's waived and what's not waived. Who makes that determination?
CHAIR:
The hon. the Minister of
Justice and Public Safety.
MR. A. PARSONS:
He does have me confused. Can
he repeat the question?
CHAIR:
The hon. the Member for
Topsail - Paradise.
MR. P. DAVIS:
During your explanation you
talked about the Rules of Procedure and so on. You said there will be a
determination later on what will be waived and what will not be waived. Who
determines that?
CHAIR:
The hon. the Minister of
Justice and Public Safety.
MR. A. PARSONS:
The owner of the privilege
determines that. That would be government. Government holds the privilege. The
same as if you went into a lawyer and had a conversation, there's a
solicitor-client privilege there. It's not the lawyer that decides it; it's you
that decides it.
It's the
same thing; government would make that decision on what to waive or not to
waive. The power is always with government, always has to be. This bill does not
change that.
Let me
see what else I can say here. The big thing to keep in mind here, without this
amendment, there's going to be a delay in the information that goes over there.
There might even be less information that goes over there because departments
would have to make the determination on what to release and not to release.
What
we're saying is we're going to send it all. We're sending it all over there. We
want it all to be there, we just don't want to lose the privilege.
CHAIR:
The hon. the Member for
Topsail - Paradise.
MR. P. DAVIS:
Thank you, Mr. Chair.
I get
that. You're going to send it all over. Government is going to decide what you
will waive and what you will not waive.
My
question is: What process will be used to determine what will be waived and what
will not be waived?
CHAIR:
The hon. the Minister of
Justice and Public Safety.
MR. A. PARSONS:
I can't give an answer to
that, what process will be put in place. I would imagine it will be a
common-sense process where we want absolutely everything that can go over that
doesn't hurt government's long-term interests as it relates to things that are
unrelated. I'm assuming that's the process.
Again, I
would state that there's a guiding principle here. We commissioned an inquiry
into Muskrat Falls. We want all the information that's out there because this
government – this government – has absolutely nothing to hide.
SOME HON. MEMBERS:
Hear, hear!
CHAIR:
The hon. the Member for St.
John's East – Quidi Vidi.
MS. MICHAEL:
Thank you very much, Mr.
Chair.
I want
to pick up on something the minister has said. I really would like a practical
example in layperson's language. You may think it's really simple but there are
laypeople, myself included, who need it.
When you
talk about wanting to give over everything and what you're concerned about is
giving over everything but still being able to assert privilege regarding
documents.
Can you
give a practical example of what that looks like to assert the privilege over a
document?
CHAIR:
The hon. the Minister of
Justice and Public Safety.
MR. A. PARSONS:
I appreciate the Member
opposite talking about the layperson. I'm going to try my best, because I'm
certainly no expert in this, and this is why I do rely on the staff who are
certainly well versed in this.
What's
going to happen is – we know the solicitor-client privilege basically applies to
just about everything. There's that conversation, legal opinions. We know that
applies. The bill will then cover that and it all goes over again, we make that
determination.
It's
hard to tell right now what would be covered or not. To me – like, the request
literally came in and I think it went to every department basically for any
information that had the word Muskrat in it. That's, I think, how basic it was.
There
might be something on a litigation file within the Department of Justice or any
number of other departments that Justice does the legal work for, that gets
caught under that because the word is there. It will depend on the scope, how
will – the Member for St. John's Centre said it's a scoop. It really was. It was
a grand scoop of, basically, a data dump of information.
What
we're doing is we want to send it all over. How do we apply it? I do think it's
a case-by-case basis. This is the reason we're doing it like this, because if we
did it now it would take forever, and the inquiry is sitting there waiting;
whereas we're saying let's put it all over there. Because they will likely go
through –
AN HON. MEMBER:
(Inaudible.)
MR. A. PARSONS:
Yes.
The
second part of your question is: How do we apply it? I would imagine it would be
a case-by-case basis looking at what's relevant, not relevant. There are certain
things that would be injurious.
In my
opinion, the overlying principle that has to be applied is, is it necessary to
the inquiry? Is it going to hurt government's interests, and is there any other
reason we cannot release it? It is not set in stone but the general principle I
have is that if we can get it there at all, we have to get it there.
CHAIR:
The hon. the Member for St.
John's East - Quidi Vidi.
MS. MICHAEL:
Thank you very much, Mr.
Chair.
The
asserting privilege is involved in your decision with what's going over or is it
after the fact? That's what I'm trying to get at.
CHAIR:
The hon. the Minister of
Justice and Public Safety.
MR. A. PARSONS:
I think I got it. I know it
was a good question. I hope I'm going to get it right.
You're
saying, are we going to assert the privilege before or after? It's going to be
before.
What
happens is this bill goes back to January 1, that way – because if you send it
over and this is not clarified, then the privilege is gone. So we're going to
assert the privilege now on everything. It goes over, they go through what they
want and then they have everything – absolutely everything. Really, if anything
–
AN HON. MEMBER:
(Inaudible.)
MR. A. PARSONS:
We don't make that
determination. We're going to send everything over and this bill is a catch-all
for everything. Everything that goes over, if there is a solicitor-client
privilege implication, it's covered. If it's not there, it's not there. Not
everything is solicitor-client privileged, but what is will not lose that
protection.
The
reason we're doing this now and making it retro to January 1 is we have to send
it all over because, in some cases, if it's not there, if you send it over
without being certain that you've covered it off, you may make the decision not
to send it.
I think
on the flip side, if government gets in a position where we're making that
determination here should we send it, should we not send it, we're thinking we
should send everything. Just get it all over there and have that protection.
Coming
back to the way you look at it, it's similar to courts. You have to weigh – the
prejudice that it causes, is it injurious to the province? What is higher? It
really is, in some cases, a balance of probability. Maybe I'm getting that
wrong, but there are competing interests here. Each matter is unique, I think,
in that case.
CHAIR:
The hon. the Member for St.
John's Centre.
MS. ROGERS:
Thank you, Mr. Chair.
Here's
what I understand: The inquiry has asked for all kinds of information. So the
option is for government to go through everything, which would take a whole lot
of time, and then if you release something, if you disclose something, then the
solicitor-client privilege has been waived, so you're no longer protected.
So this
is an amendment that says: Okay, let's try it this way, folks. We're going to
send you everything, but we're going to pass legislation so we still have our
solicitor-client privilege so we're not giving that away when we do this data
dump.
However,
here's my question, Mr. Minister: The inquiry will look at and they'll see okay,
that's not relevant. That's not relevant. Thank you for giving us all this;
however, this is relevant and this is relevant and this is relevant and it does
have solicitor-client privilege.
Can the
inquiry then go to government and say: This is relevant? We would like to be
able to use this. Will you waive solicitor-client on this particular piece of
information? Is that possible?
Then an
addendum to that is: How did other inquiries deal with this?
CHAIR:
The hon. the Minister of
Justice and Public Safety.
MR. A. PARSONS:
The first part, dead on,
you've got that covered, and that's how the process works. The second part
really is, it's a conversation, it's a process that really will be case by case.
It all comes back to, as it has always been the case and will not be changed by
this act, is that determination is made by the privilege holder, which would be
government, which would be basically a balancing act that's done on what's in
the best interests of getting this done versus how would it be injurious to the
province in certain ways.
So
that's what's going to happen, and it has to be done on every single document.
But it's better to do it that way than for government to do that internally
before they send it and do it themselves. I like the approach you've laid out,
and that's how we're doing it.
CHAIR:
The hon. the Member for St.
John's Centre.
MS. ROGERS:
Okay, so now we have the
scenario that the inquiry has gone through and has identified relevant
information that might have solicitor-client privilege. Which again, we agree is
so very important and one of the foundational pieces of our justice system. And
the commissioner says, this is very relevant and I need to be able to use this
and release this publicly. So they go to government and government says, no,
sorry, we're not going to accept a waiver. Then what?
CHAIR:
The hon. the Minister of
Justice and Public Safety.
MR. A. PARSONS:
Again, I don't think it's a
simple yes or no answer. We have to remember here that we've commissioned this
inquiry at significant cost, time and expense. So I don't think it's just a no.
What I would suggest is, in some cases, I think there have been conversations
with the commissioner as to is there a way that it can be used without
disclosing it in an injurious way to outside parties. These are conversations
that can happen too. I could be completely wrong here, but I'm suggesting it may
be a case of limited waiver.
So
that's where I am on that. I wouldn't want to think – because some people get
the idea, well, government is just going to say, no, we're not giving this over.
But you've got to understand where we're coming from. This is not a simple
process. This is expensive and it's time consuming. It's costing a lot of money
and taking a lot of time, taking a lot of resources. So if we're going to do it,
we want to do it right, but at the same time maintain certain rights that have
to stay there.
CHAIR:
The hon. the Member for St.
John's Centre.
MS. ROGERS:
Mr. Chair, I just have one
last question, but before I get to that I just want to just raise the issue. I
remember the filibuster around Bill 29 and how often we talked about just the
fact that a lawyer is in a room, whether that lawyer is in the room in the
capacity of a lawyer. I can remember when the current government was Opposition
and we were here and we were raising those issues as well and those concerns.
That's just a little bit of a sidebar.
But so
my question is – what was my question?
SOME HON. MEMBERS:
Oh, oh!
MS. ROGERS:
I had a very relevant
question.
MR. A. PARSONS:
I can stand up and answer the
previous question if you wanted to have a second (inaudible).
MS. ROGERS:
Yes, sure, because I know it
will come back and it was a very good question.
CHAIR:
The hon. the Minister of
Justice and Public Safety.
MR. A. PARSONS:
I appreciate where the Member
is coming from; it happens to me all the time.
Going
back to what you asked previously about this conversation, if government chose
not to refuse any information, it will be noted by the Commission so the public
would know that something was refused.
I think
that's important to know there. There's a big pressure on us to release
everything that we can. Again, there's going to be cases where I'm sure it
doesn't happen, but I think that's important to know.
CHAIR:
The hon. the Member for Mount
Pearl -Southlands.
MR. LANE:
Thank you, Mr. Chair.
Minister, before I get to the question I was going to ask now in relation to the
question that you just answered actually, which is an important point, if
government decides they're not going to release something, like you said it will
be made public that they were asked for something and didn't release it, will it
just simply be that government, on X number of occasions, they were asked for
stuff, they didn't provide it or will there be some detail government was
specifically asked for and then we'll know exactly what it was or generally what
it was you refused to release.
CHAIR:
The hon. the Minister of
Justice and Public Safety.
MR. A. PARSONS:
It's a good question and I'm
not positive of the answer. I would assume that that would fall under the
Commission's rules of process on how they would answer that. I don't think it
would be us that determine what's said or not. So that might be a better
question for the Commission. I don't have the answer.
I'll
endeavour to get it but while I'm up here, one thing I wanted to point out when
we're talking about this bill – and I don't know if I've mentioned this yet
today and I don't know if it's been mentioned at all, just so everybody knows,
this is not unique to Newfoundland and Labrador, this amendment. It's actually
already in place in Ontario and British Columbia. So it's something that other
provinces have seen fit to put in there. Ontario went through the Walkerton
inquiry, which was a big one. In fact, I think the one in British Columbia was
the Pickton inquiry where that became an important issue.
Again, I
apologize for not having it. I would assume it would not be in a way that even
the answer to which would disclose something that would be in breach of
solicitor-client privilege, but I'll certainly endeavour to find out.
CHAIR:
The hon. the Member for Mount
Pearl- Southlands.
MR. LANE:
Thank you, Minister, I
appreciate it. I would like to know that answer, if I could get it.
Minister, I'm wondering can a document – and that's when you talk about partial
disclosure, I think you said, or partial privilege or whatever; I'm not really
familiar with all these legal terms. Let's say there was a document, for
argument's sake, that part of it was privileged. So there's a very relevant
piece of information, maybe it's three pages long and in that there's one
paragraph that could be injurious to the province. Could some arrangement be
made with the commissioner to say everything except this paragraph will be
redacted, but everything else will stay there because it is relevant? Could that
happen?
CHAIR:
The hon. the Minister of
Justice and Public Safety.
MR. A. PARSONS:
Generally, the privilege
applies to the whole thing. Normally, yes, if you just release the one little
part you would release the privilege for everything.
I guess
I'm, in some cases, speculating because at the end of the day our goal is to put
out everything that we can. This is something that maybe there are lawyers in
the department that are going to be very upset with saying this. I don't know
for certain that doing a small or limited waiver on one thing would affect it or
not. To me, if that was the case, then, obviously, there's an easy answer. You
can't hurt yourself by trying to be accommodating, but I think government as a
whole is going to try to be accommodating in getting it all out there.
It's
similar to what I said, I don't know if there's a way that we can do that or if
there's a way that the Commission is going to be able to avail of the
documentation and to use it in their inquiry in such a way that doesn't harm.
These are conversations that will happen.
There
are a lot that I'm sure we don't know at this point, but these are things that
are constantly being worked on and will be done between the commissioner, their
counsel and department solicitors.
CHAIR:
The hon. the Member for Mount
Pearl - Southlands.
MR. LANE:
Thank you, Mr. Chair.
Minister, if, for argument's sake, you can't get an agreement with the
commissioner. The commissioner wants a particular document and he feels it's
very relevant. The department says: Wish we could give it to you, but
client-solicitor privilege because there's something injurious in here,
whatever.
If
there's a disagreement between the commissioner and the department as to whether
that's a valid argument – and I'm not necessarily saying your department, maybe
Nalcor is a better example. Nalcor says we can't give you this because, and the
commissioner looks at it and says there's really nothing in here that's
injurious, I don't buy that argument.
Is there
any court proceeding or whatever, that there was something really valuable that
the commissioner can say: I don't buy this client-solicitor privilege on this
document. It's really important; therefore, we're going to initiate a court
action to get it from you anyway. Could that happen?
CHAIR:
The hon. the Minister of
Justice and Public Safety.
MR. A. PARSONS:
To be quite honest – and what
I'm going to endeavour to do here, because I'm not positive of the answer and I
don't want to put out something that's not accurate. What I would suggest is I
don't think the question you're asking and the answer will prejudice how you
decide to vote on this or not.
What I
will do is that when we do third reading on this, I will stand up in this House
and give you the answer to that question, but I want to make sure it's right.
I'm not sure which legislation supersedes here, if the commissioner's authority
supersedes ATIPPA in this particular case. Maybe that's because it's been a long
day.
What I
will do is make sure I get an answer to that. Similar to anything else that you
ask here now, if I don't have the proper answer – I can give my opinion on some
things, I can say what I think, but I think in this case you want to go away
knowing, satisfied that you have the proper answers. So if it's not here now, I
guarantee that I will have it for third reading.
CHAIR:
The hon. the Member for Mount
Pearl - Southlands.
MR. LANE:
I thank the minister for
that. It's, I guess, three questions now. I understand why you wouldn't have the
answers. So, again, I would appreciate it. I'm sure you have staff that are
monitoring what's going on here. Perhaps we could get some answers to three of
those questions, if we could.
The last
question I have, Minister, is that I understand you are committed; you've
indicated you're committed. You have nothing to hide and so on. You weren't the
government that sanctioned this project or voted for it. I get all that.
Therefore, you're saying we're going to dump over all the information we can. We
want to release everything we can.
How does
that apply to Nalcor? In the sense, have Nalcor been given that same
instruction? Who's going to oversee to make sure Nalcor shares the same view
that you do, that we have nothing to hide and we're going to throw everything we
have there? What assurances do we have that Nalcor is going to approach it the
exact same way as you are? Given the fact that a lot of the players involved in
the project are still there, I would imagine.
CHAIR:
The hon. the Minister of
Justice and Public Safety.
MR. A. PARSONS:
Thank you, Mr. Chair.
The
Member is certainly full of very good questions. I understand where he's going
with that. There will be a process through the Commission's Rules of Procedure
that will govern that. Solicitor-client privilege applies to Nalcor the same way
it applies to government, the same way it applies to any single one of us as
citizens.
There's
a process there where there's going to be all the information sent over. I think
this, in fact – because the Public
Inquiries Act will govern them as well, in the sense that they will
choose what to provide. They know the solicitor-client privilege will exist and
then they'll have to make a decision on whether that is waived or not as the
privilege holder.
I don't understand if there's any way that you can actually
challenge that. As I've said, I'm going to be able to get some answers hopefully
soon.
That's where I am. It's hard when you get into the
hypotheticals, but I understand where the Member is going with the question.
CHAIR: The hon.
the Member for Mount Pearl - Southlands.
MR. LANE: Thank
you, Mr. Chair.
Minister, I appreciate that. That was my last question, but
my final comment on it is that I would hope there would be – maybe through the
Minister of Natural Resources or meetings with the new board of directors who,
certainly, wouldn't have had anything to do with the sanctioning of the Muskrat
Falls Project. In theory, they'd be in the same boat you're in; they would have
nothing to hide.
I would hope
there would be some
conversations that would take place with them to give direction to ensure that
every shred of evidence and information that could possibly be given out by
Nalcor is provided and not trying to hide behind solicitor-client privilege. I
make that more as a comment than I do as a question because you've already
answered to the best of your ability.
Thank
you.
CHAIR:
The hon. the Member for St.
John's Centre.
MS. ROGERS:
Thank you very much, Mr.
Chair.
I
remember my question. My question is: The issue of solicitor-client privilege,
how does it relate to, for instance, when the Leader of the Opposition was
premier? Does that stay with him, if there are any documents and any legal
advice that was given to him? Where does that go with previous government?
CHAIR:
The hon. the Minister of
Justice and Public Safety.
MR. A. PARSONS:
I think I have the answer to
that, and I don't think it applies to the individuals. I think it applies to the
client. The client would be government as a whole, not just the individual.
The same
as a department, it just doesn't go to the – what I would say is, this covers
right from conception. I think it goes back to 2006 up to date. This is not a
case of treating any time period differently. The departments are the
departments and are full of individuals who've been there through this, through
administrations and government.
The
privilege rests with the client. In this case the client would be government, or
that particular department.
CHAIR:
The hon. the Member for
Topsail – Paradise.
MR.
P. DAVIS:
The
Member for St. John's Centre raises a point that I had noted here when I had a
chance to speak again, because that's one of the issues we have with the bill.
AN
HON. MEMBER:
(Inaudible.)
MR.
P. DAVIS:
Yes, absolutely, because we have – I say to the Member, that's why I was asking
questions about what the process is and who's going to decide? Because the
reality is we are in a partisan world here. We're in a political and partisan
world.
We have the government who holds – and I did some
checking earlier. I asked some other people: who holds the privilege, who owns
it? The minister said the client owns the privilege, but when government changes
hands the current government controls, acts as the client, is still the client
and holds that privilege, that decision on privilege.
Interesting to point out, that under Cabinet rules the
current government is not supposed to go in and look at Cabinet documents from a
previous government, but under this process they can look at it and then decide
what – I should be careful, because they do ultimately hold the decision power
authority over what is may be released or may not be, what's waived.
Recognizing and the process of everything being sent to the commissioner – which
I fully agree with, I absolutely fully agree with everything being sent to the
commissioner. The commissioner then indicates to government this is relevant,
this is relevant, this is relevant, I'd like for you to waive privilege on item
1, 2, 3, 4 and 5. So the government – and that's why I was asking the questions
on process – then, as the client, gets to decide if they're going to waive on
those documents or not.
I
respect the fact and I'm glad the minister and I acknowledge the minister
commented that the commissioner will report if something is not waived, but you
still won't know what's in it.
One of
the concerns I have is treating documents before November 30, 2015 versus
documents after November 30, 2015 because the government, prior to November
2015, has no say in waiving that privilege, it falls completely with the current
government.
MS. ROGERS:
Are you glad I asked my
question?
MR. P. DAVIS:
Yes, I am because you
actually set it up quite well for me.
Under
access to information, I talked about this in second reading, when a person
applies for information and if it's denied because of privilege or one reason or
another, the applicant can go to an independent third party, being the
commissioner, and ask the commissioner to waive privilege.
So what
we have here in this case is the commissioner comes to the government, they give
everything to the commissioner, the commissioner says I'd like for you to waive
privilege on this item, this item, this item, and this item, the government can
say yes, yes, no, yes, and on the item where they say no the only default is he
reports that it wasn't released.
What I
believe should happen is that in a case like that there should be an independent
process. Now, the minister said oh, you can go to court – I think he said in
second reading, he referenced. Or maybe I'm wrong. Maybe I heard it through
today or in the briefing, I'm sorry I can't – but I heard along the way that the
person could go to court, or the commissioner could go to court, or the client
could go to court, there could be court processes to determine if it should be
released or not.
If the
commissioner held that ability, I would be very satisfied with it, or if someone
like Donovan Molloy, the Privacy Commissioner held that ability. Not being
critical of the government, but the reality is we live in a political world and
a partisan world, a difference from the current government versus the past
government and an independent Member as well.
I've
asked the minister to explain the process, what process, and he said I can't say
what process will be followed. I asked him what will happen when the
commissioner sends it all back. He said there will be a determination later on
what would be waived and what not would be waived. But by concern on this is we
don't know what process we followed and how do we get by a perception of a
political bias.
CHAIR:
The hon. the Minister of
Justice and Public Safety.
MR. A. PARSONS:
Thank you, Mr. Chair.
Again,
there's a bunch of different thought processes along this. One could look at the
Management of Information Act, I think
it's section 5.4, that says Cabinet documents will be governed in a manner set
out by Cabinet Secretariat. That's what that section says.
There's
also the question asked about government. One could look at government as being
immortal and so it always rests with government throughout the changes. There's
some thought that some of the Cabinet confidences may rest with previous
Cabinets, so maybe this comes down to a question asked of the previous Cabinet.
Maybe there's a privilege that goes with that or not. These are very good
questions that will go throughout this. We may not have the answers now; this is
why this goes through this process.
What I
would say, the Member mentions about bringing in a new process. We're not
changing exactly how everything is done to get around this; this is a pretty
simple request. We're talking about the protection of solicitor-client privilege
that's in the best interests of government. That's all this is about.
When we
talk about the privilege itself, if we're making the argument is it privileged
or not privileged, then you go to court. That's how that works; that's a
standard process.
If the
agreement is that it is privileged but whether it should be waived or not
waived, that rests with the client. That rests with the privilege holder who
always makes that decision. That cannot be challenged.
The
other thing, too, is that going by if there's a refusal to submit it or to waive
it or to disclose the information, it's noted. But it will also be noted, from
my understanding according to Commission rules – and, again, I'm trying my best
here because I didn't set the Commission Rules of Procedure, that's the
Commission. I don't want to say anything that's contrary to what Justice LeBlanc
has set out. My understanding is that if the refusal to do so negatively affects
the conclusions of the inquiry, that's put out there as well. I think that's
important.
Like I
say, I'm certainly free to stand here and answer questions and continue
answering. I think we've outlined why we are here on this bill and what it
accomplishes.
CHAIR:
The hon. the Member for Mount
Pearl - Southlands.
MR. LANE:
Thank you, Mr. Chair.
Mr.
Chair, as I've indicated I believe the intent of what's in this bill. I think I
understand what's trying to be achieved and I agree with it to a great degree.
Given the fact that we do have some outstanding questions that the minister – in
fairness, he's tried his best to answer, but some that he couldn't answer for me
and there are concerns there.
I just
throw it out there to the minister: Is there a possibility – I don't know if
there's a major hurry to get this done now – that we could adjourn this debate
and have an opportunity to have somebody like Mr. Learmonth or somebody and
someone from Justice again to just answer – I mean this is a very serious
matter. The minister has indicated himself this is a very serious matter
relating to this, and we want to make sure we get it right.
I'm not
trying to stall the process. I want to get the process moving, but I'm just
asking. The minister says no, the government has the right to say no and we're
going to vote for it. I'll probably support the bill anyway. But given the fact
there are some, what I think, good questions, important questions that we
haven't got answers to, I'm wondering is that a possibility.
CHAIR:
The hon. the Minister of
Justice and Public Safety.
MR. A. PARSONS:
I'm just going to make a
point here, and I appreciate the Member's comments. But I would say to this is
it's extremely hard to answer any possible hypothetical that can come up. A lot
of what's being asked is hypothetical and speculative in nature.
What I
would suggest is that there have been briefings provided, and there would also
be a briefing granted if the request was made. The Commission of Inquiry, I
understand, is always readily available. We have a bill here that needs to be
put in for the protection of government. I'm going to continue on with that. I
think I've answered the questions that have come forward that deal with this
bill itself. Even after it's done, there may be questions that arise, but it's
hard for me to stand and to answer some of the hypotheticals that come up.
So at
this point we're going to continue on. I think the government as a whole has
done it's due diligence and due process in the sense that we've provided all the
information, all the briefings. There's been no rush on any of this. In fact, we
were having discussion yesterday on having this debate yesterday and we've put
it off until today to have it. Again, the third reading is not going to happen
tomorrow, or even the day after, so the Member is free to contact the
department, free to contact the Commission to ask any questions that they have.
But at the end of the day it's our position as a government that this is
necessary and this is a good amendment and will allow this inquiry to go ahead
as expeditiously as possible.
CHAIR:
The hon. the Member for
Topsail - Paradise.
MR. P. DAVIS:
Thank you, Mr. Chair.
Mr.
Chair, the minister, in the briefing we had discussion about I think Ontario and
BC have done a similar kind of thing. Can the minister give us some information
as to what's similar or what was done different from Ontario, or is this – we've
seen bills in the past where we've essentially done what's identical, but can
the minister give me some insight as to where the differences may be and what
Ontario and BC have done? Or similarities.
CHAIR:
The hon. the Minister of
Justice and Public Safety.
MR. A. PARSONS:
I don't have that information
readily accessible. All I can say is that Ontario and BC – again, we provided a
briefing on this.
AN HON. MEMBER:
(Inaudible) referenced the
inquiries.
MR. A. PARSONS:
I referenced that they had
the two inquiries. I referenced that their acts have similar provisions. That's
about all that I'm prepared to say to that right now. In fact, if you don't get
the answers in the briefing that you want, you can send an email. I don't have
that here.
I've
never put across in any way, shape or form that I have all the answers to every
single question that could ever be asked; certainly I'm far from it. The
department will always endeavour to provide answers to questions that come up.
At the
end of the day, when it comes to the pith and substance of this particular bill
and this piece of legislation, I think we've covered it off quite well. There
are always going to be questions in terms of waiver or not waiving, whatever,
but that actually has nothing to do with the reality of what this bill and this
amendment is trying to do.
At that
point, that's the best I can say for that.
CHAIR:
The hon. the Member for
Topsail - Paradise.
MR. P. DAVIS:
Thank you, Mr. Chair.
Actually, we did raise it in the briefing. After we left the briefing it dawned
on me, we didn't get a clear answer from it. I know we can't do third reading
today, maybe between now and third reading the minister could try and obtain
that information for me.
Minister, the access to information process that's now in our current
legislation, as an example it has a level of checks and balances that exists
within the legislation. As I alluded to earlier, there's an impartial
commissioner, separate from government or the applicant, who can give decisions
independent from those who are seeking information or who's deciding what
information can be provided. That process gives confidence to the process and it
gives the public confidence of a fair and unbiased process.
In the
process you're going to follow here, what checks and balances will be in place
to ensure public confidence in what's released? Is there any step in the process
here where we know that the partisanship is removed from that decision process?
CHAIR:
The hon. the Minister of
Justice and Public Safety.
MR. A. PARSONS:
Mr. Chair, I'm a
little bit concerned about the line of questioning. The Member opposite seems to
think there's some kind of insidious partisan nature to the staff, the
bureaucrats and the courts that are going on here.
I mean
we take the advice of the individuals that are there, many individuals that were
actually there well before we were there. Talking about confidence of process,
the confidence would be given by the fact that we're doing an inquiry. The
inquiry is following legislation that was created long before we ever got here.
The inquiry has an independent justice of the Supreme Court of Newfoundland and
Labrador. That's where the confidence comes from.
This has
nothing to do with that. We want all the information out there. I don't know any
other way to say it when we talk. I have confidence in the process. I haven't
spoken to a single person that says we're not sure about how this is going to
work. The only ones that seem to have an issue are the Official Opposition.
CHAIR:
The hon. the Member for
Topsail - Paradise.
MR. P. DAVIS:
Thank you, Mr. Chair.
I have
no more questions this afternoon. I just want to thank the minister for his
input.
We did
have a briefing. I thank them again. I've thanked them a couple of times, I'll
thank them again.
Hopefully between now and third reading, if he's able to provide that
information, we'd greatly appreciate it. I thank the minister.
CHAIR:
Shall the motion carry?
All
those in favour?
SOME HON. MEMBERS:
Aye.
CHAIR:
Those against?
Carried.
On
motion, clause 1 carried.
CLERK:
Clause 2.
CHAIR:
Clause 2.
Shall
the motion carry?
All
those in favour?
SOME HON. MEMBERS:
Aye.
CHAIR:
Those against?
SOME HON. MEMBERS:
Nay.
CHAIR:
Carried.
On
motion, clause 2 carried.
CLERK:
Be it enacted by the
Lieutenant-Governor and House of Assembly in Legislative Session convened, as
follows.
CHAIR:
Shall the enacting clause
carry?
All
those in favour?
SOME HON. MEMBERS:
Aye.
CHAIR:
Those against?
Carried.
On
motion, enacting clause carried.
CLERK:
An Act To Amend The Public
Inquiries Act, 2006.
CHAIR:
Shall the title carry?
All
those in favour?
SOME HON. MEMBERS:
Aye.
CHAIR:
Those against?
Carried.
On
motion, title carried.
Motion,
that the Committee report having passed the bill without amendment, carried.
CHAIR:
The hon. the Government House
Leader.
MR. A. PARSONS:
I move, Mr. Chair, that the
Committee rise and report Bill 35.
CHAIR:
The motion is that the
Committee rise and report Bill 35.
Shall
the motion carry?
All
those in favour?
SOME HON. MEMBERS:
Aye.
CHAIR:
Those against?
Carried.
On
motion, that the Committee rise, report progress and ask leave to sit again, the
Speaker returned to the Chair.
MR. SPEAKER (Trimper):
The hon. the Member for
Baie Verte - Green Bay, Chair of the Committee of the Whole.
MR.
WARR:
Mr.
Speaker, the Committee of the Whole have considered the matters to them referred
and have directed me to report Bill 35 without amendment.
MR.
SPEAKER:
The
Chair of the Committee of the Whole reports that the Committee have considered
the matters to them referred and have directed him to report Bill 35 without
amendment.
When shall the report be received?
MR. A. PARSONS:
Now.
MR. SPEAKER:
Now.
When
shall the said bill be read a third time?
MR. A. PARSONS:
Tomorrow.
MR. SPEAKER:
Tomorrow.
On
motion, report received and adopted. Bill ordered read a third time on tomorrow.
MR. SPEAKER:
The hon. the Government House
Leader.
MR. A. PARSONS:
Yes, Mr. Speaker, given the
hour of the day I move, seconded by the Member for
Lewisporte - Twillingate, that the House do now
adjourn.
MR.
SPEAKER:
It
has been moved and seconded that this House do now adjourn.
All those in favour of the motion?
SOME HON. MEMBERS:
Aye.
MR.
SPEAKER:
All
those against?
This House stands adjourned until tomorrow at 10
o'clock in the morning.
On motion, the House at its rising adjourned until
tomorrow, Wednesday, at 10 a.m.