Blogger vows to appeal Supreme Court of N.L. decision
Brad Cabana. — Telegram file photo
A blogger’s attempt to single-handedly shut down the multibillion-dollar Muskrat Falls hydroelectric development through a court challenge has failed.
But Brad Cabana says he intends to appeal the decision rendered last Friday by the Supreme Court of Newfoundland and Labrador.
“Certainly, there will be many, many grounds that I will be appealing this on,” said Cabana, who lives in Hickman’s Harbour and represented himself during courtroom proceedings in St. John’s.
Justice Gillian Butler said that offering a declaratory judgement as a remedy “is not generally available when the controversy is based on a hypothetical claim,” further noting there must be a cognizable threat. In her conclusion, Butler stated she agreed with counsel for Nalcor Energy that Cabana’s remedy “is political, not legal.”
Government lawyer Rolf Prichard had previously argued in court that Cabana’s claims were speculative and thin.
Butler also ruled that whereas Cabana is not a member of the Innu Nation, he has no “genuine interest in the issue of whether the Innu Nation ratification requirement or process was reasonable,” thus having no standing with respect to its interests.
Cabana claimed the project denied his rights under the Canadian Charter as the province failed to hold a provincewide referendum on the matter and government’s decision to proceed would impair his economic well-being. He also claimed it was discriminatory to give the Innu Nation the right to vote on the project but not the general population.
Butler concluded there was no legal basis by which Cabana could require the province to hold a general referendum on Muskrat Falls, noting it is a policy decision for the government to make.
Cabana was also adamant that the water management agreement in place pertaining to the Churchill River was invalid due to the rights of Hydro-Québec and that the province may leave itself susceptible to legal action from Hydro-Québec, paving the way for increased property taxes to handle the financial burden of a lawsuit.
Butler ruled that Cabana failed to establish that the province violated its territorial limitations and that he did not establish “a high degree of probability” concerning the legal action ramifications.
“The Applicant has not shown a very strong probability that grave damage will accrue to him in the future,” wrote Butler. “His submissions on financial losses are entirely speculative and not supportive of an exercise of discretion for a mandatory injunction.”
Last week, Hydro-Québec ann-ounced it is pursuing legal action to ask Québec courts for a declaratory order to confirm its core rights under the 1969 Churchill Falls power contract.
Hydro-Québec said in a news release it has the “exclusive right to purchase virtually all of the power and energy produced by Churchill Falls Generating Station until August 31, 2041; (and) the right to benefit from operational flexibility."
Cabana admits that legal item forced him to contemplate whether he would need to bother pursuing an appeal of his court challenge concerning Muskrat Falls. He ultimately determined it remains necessary.
“It did give me pause to think about it, to be honest,” said Cabana in reference to Hydro-Québec’s own legal manoeuvring.
“However, I think it’s important that an actual stoppage occurs to the work, and Hydro-Québec ... is asking for a declaratory order. It’s not specifically asking for a stoppage of the work. They don’t care if we get hurt, so all they’re concerned about is their own rights, which is understandable. But somebody here has to care about whether we get hurt, and that’s why I’m continuing to pursue this.”
Cabana maintains there were grounds to remove Butler from the case due to a perceived conflict of interest stemming from her husband’s position as a partner in a law firm representing former premier Danny Williams, who has sued Cabana for defamation.
“That’s going to be front and centre,” said Cabana. “I think that itself, frankly, will overturn this decision.”
Butler filed a decision in March denying Cabana’s request that she recuse herself from the case. She said he failed to establish that reasonable and informed people would conclude she is biased.
Cabana also believes some evidence he provided was ignored in the judge’s decision. He intends to continue representing himself in the matter.
Butler ruled that Cabana must cover the costs for counsel retained by the three respondents to his court challenge — the provincial government, Nalcor, and the Innu Nation.
A failed policial candidate who ran for the Liberals in the 2011 general election against Trinity North MHA Ross Wiseman, Cabana made attempts to lead both the Liberal and the Progressive Conservative parties.
The PC Party disqualified Cabana in January 2011 because his nomination papers included signatures from people who were not members of the party. Seven months later, he made an in-person pitch to the Liberal Party’s board, which later chose Kevin Aylward to lead the party in the 2011 election campaign.