Legal novice's Muskrat Falls challenge hits snag as judge denies delay
Muskrat Falls, on the Churchill River in Labrador, is shown in a Februrary 2011 file photo. (Paul Daly / THE CANADIAN PRESS)
Published Thursday, February 21, 2013 9:37AM EST
Last Updated Thursday, February 21, 2013 1:50PM EST
ST. JOHN'S, N.L. -- A Newfoundland man's single-handed court challenge of the Muskrat Falls hydroelectric project got off to a rough start Thursday as the judge refused to hear one of his main arguments.
Judge Gillian Butler said Cabana should have sent the federal Attorney General a copy of his statement of claim alleging constitutional violations that he asserts should halt the $7.7-billion development in Labrador.
Instead, Cabana had sent an email regarding the four-day hearing in the Supreme Court of Newfoundland and Labrador. He said he received an acknowledgment from Ottawa but no reply.
At issue are changes to the provincial Electrical Power Control Act, and a subsequent water management agreement, which Cabana says violate Hydro-Quebec's contracted water flow rights on the Churchill River.
"It's a critical part of my argument," Cabana told Butler.
He asked for a 10-day delay to file the required documents but lawyers for the provincial government, the Innu Nation and the province's Crown corporation Nalcor Energy objected.
"This court should not be used as Speaker's Corner in Hyde Park," said Nalcor Energy lawyer Thomas Kendell, arguing that Cabana shouldn't be allowed to tie up costly court time to air "personal grievances."
He said Cabana's fierce opposition to the Muskrat Falls project would be more properly expressed in the media, through public protest or at the ballot box in the next election.
Butler ultimately dismissed Cabana's request. She said the hearing would proceed on his other arguments but that he could reintroduce his claims regarding the Electrical Power Control Act at a later stage.
Cabana is trying to halt construction on the dam and power station near Happy Valley-Goose Bay that started last year.
Muskrat Falls is expected to begin generating hydro by 2017 that would be sent to Newfoundland and then Nova Scotia through a vast network of transmission lines and subsea cables.
Cabana argues that the province unjustly denied voters a chance to weigh in on the project in a referendum. He says in court documents that while the Innu Nation was allowed to vote on whether to accept a related benefits agreement, other provincial residents had no similar say.
Both the government and Nalcor Energy say his claims are without merit.
Cabana said he has spent at least $10,000 of his own cash fighting the case in an effort to point out legal uncertainties and constitutional breaches that he believes could spell disaster for Newfoundland and Labrador if Hydro-Quebec challenges Muskrat Falls later on.
He's not the only critic to raise whether Hydro-Quebec could ever challenge Newfoundland and Labrador's ability to manage water flows required for adequate output from Muskrat Falls.
But Cabana has said his efforts to get pro bono legal help failed. He arrived in court Thursday alone as two lawyers each for Nalcor Energy and the province sat beside him, adjacent to a lawyer for the Innu Nation.
Hydro-Quebec spokeswoman Ariane Connor declined comment when asked about the prospect of a future court challenge. But Hydro-Quebec does say in a letter to the Board of Commissioners of Public Utilities in St. John's, dated Dec. 15, 2009, that its power contracts are protected under the Electrical Power Control Act which came before the water management agreement.