Ed Martin's lawyer says Muskrat Falls commission lawyers have minds made up

The lawyer for former Nalcor CEO Ed Martin questioned the objectivity of the co-counsels at the Muskrat Falls inquiry Friday, on the eve of his own client taking the witness stand.

Harold Smith questions objectivity of Kate O’Brien and Barry Learmonth

Former Nalcor CEO Ed Martin (left) is pictured here with his lawyer, Harold Smith, outside the hearing room recently at the Muskrat Falls inquiry. (Terry Roberts/CBC)

The lawyer for former Nalcor CEO Ed Martin questioned the objectivity of the co-counsels at the Muskrat Falls inquiry Friday, on the eve of his own client taking the witness stand.

Harold Smith is closely watching the performance of Barry Learmonth and Kate O'Brien, and it's his view that both have a pre-determined opinion of the Muskrat Falls sanction decision.

Barry Learmonth is co-counsel at the Muskrat Falls judicial inquiry. (Terry Roberts/CBC)

"We came into the process thinking that it would be a very objective fact-finding and we see many examples of when a witness doesn't agree with the views of the commission counsel they are cross-examined at length," Smith told CBC News Friday.

54 witnesses have testified

So far 54 witnesses have appeared before the inquiry during 37 days of public hearings that began on Sept. 17.

But for many observers, it's all been leading up to the next two weeks.

Martin will take the witness stand on Monday, and is scheduled for five full days of testimony.

He will be followed by Kathy Dunderdale from Dec. 17-20. Dunderdale was premier at the time of sanctioning, but before that also played a high-profile role in the planning for the project as minister of natural resources.

Martin served as CEO at Nalcor for roughly a decade, and was the face of the government-owned energy corporation during the lead-up to sanctioning, and until his departure under a cloud of controversy over cost and scheduled overruns in the spring of 2016.

Some of the evidence that have emerged at the inquiry have been less than flattering for Nalcor, with one senior bureaucrat testifying this week his trust in the corporation has been shaken by some of those revelations.

"I have some questions that still require some answers," Charles Bown told the inquiry, saying he will determine whether his trust was misplaced following Martin's highly-anticipated testimony.

Examining the sanction decision

This phase of the inquiry is investigating the December 2012 decision to sanction the publicly-funded and controversial hydroelectric project at a capital cost of $6.2 billion and a first-power schedule of mid-2017.

The cost, including financing, has since soared to nearly $13 billion, while first-power is delayed until at least next year.

Both commission lawyers have aggressively challenged witnesses, and Learmonth has been especially critical of some government officials, at times saying they were naive and blindly accepted everything put before them by Nalcor.

Kate O'Brien is co-counsel at the Muskrat Falls commission of inquiry. (Terry Roberts/CBC)

During Bown's testimony this week, Learmonth suggested he and others in government were "passive bystanders."

And on Friday afternoon, Learmonth suggested government was "foolish" for "pushing for a sanction" decision while approval for the Maritime Link project, which was being undertaken by Nova's Scotia's Emera Inc., was still many months away. 

Harold Smith says comments like that cross the line.

We expect the cross-examination to come from the lawyers that are in the room and the commission counsel merely to bring out facts.- Harold Smith

"We expect the cross-examination to come from the lawyers that are in the room and the commission counsel merely to bring out facts," he said.

O'Brien declined to comment, saying the proper venue for Smith to raise his concerns is before Commissioner Richard LeBlanc.

But O'Brien and Learmonth do have the right to cross-examine.

According to the rules of procedure, which are posted on the commission's website, O'Brien and Learmonth "are entitled to ask both leading and non-leading questions."

Meanwhile, O'Brien is expected to question Martin for two-and-a-half days, beginning Monday morning.

It's a difficult issue for him because commission counsel have … what appears to be a pre-determination of the issues.- Harold Smith

After that, other lawyers will have the rest of the week to question the man who spearheaded the planning and sanctioning of the largest and most controversial project ever undertaken in this province.

"It's a difficult issue for him because commission counsel have … what appears to be a pre-determination of the issues. His objective will be to try and ensure the bigger picture is looked at and the real benefits of this project are brought forward to the public and to the commissioner," said Smith.

David Vardy (right) is a former chairman of the province's PUB, and is a member of the Muskrat Falls Concerned Citizens Coalition. He is pictured here with fellow coalition members Des Sullivan (left) and Ron Penney. (Terry Roberts/CBC)

One of the loudest critics of Muskrat Falls, David Vardy, said Martin is a key witness who has plenty to answer for, including what appears to be a rushed decision to approve the project.

"There was never a need for urgency," Vardy said Friday. "And that's where I think the big mistake was made and the government of the day was stampeded into a decision by Nalcor."

About the Author

Terry Roberts

CBC News

Terry Roberts is a journalist with CBC's bureau in St. John's.