The Telegram’s latest story, by James McLeod, failed to accurately reflect the issues in proceedings before the Supreme Court of Newfoundland and Labrador regarding my constitutional challenge. The issue before the court is: is there sufficient legal uncertainty surrounding the Lower Churchill project to violate Section 7 rights, as guaranteed by the Charter? Those rights include the right to life, liberty and security of the person.
The challenge includes: the constitutionality of the 2007 amendments to the Electrical Power Control Act 1994 and the subsequent water management agreement; the constitutionality of the Innu referendum; ignoring of the aboriginal rights of the Nunatsiavut, Nunatukavut and the Quebec Innu; and failing to offer a referendum to the people of the province as was granted to the Innu of Labrador.
The issues are complex, but the central gist is the provincial government has failed to disclose to the people of our province that the Lower Churchill project is proceeding illegally.
For instance, the water management agreement forced upon CFLCo and Hydro-Québec takes operational control of the Upper Churchill from them and puts it in the hands of the Water Management Committee.
That committee consists of four members — two appointed by Nalcor and two appointed by CFLCo (whose CEO is Nalcor’s Ed Martin). The agreement also forces CFLCo to operate the Upper Churchill at full capacity, which Nalcor’s vice-president Gilbert Bennett has stated will free up 2,000 megawatts a year that they intend to take from that facility — which is not legal.
All this would be fine if it did not violate the power contract of 1969, the renewal of 2016, and the guaranteed winter availability contract.
Hydro-Québec has stated it rests on its rights under the power contract, and did not intervene in a Public Utilities Board hearing on the water management agreement (WMA).
However, that does not mean it intends to be controlled by the WMA if it violates the contract — which it does. This is established law.
The Reversion Act review by the Supreme Court of Canada found: “Under the contract, CFLCo agreed to supply and Hydro-Québec agreed to purchase virtually all of the power produced at Churchill Falls.” The key words, among others, being “produced at Churchill Falls.”
My greatest concern is our government builds this dam, all the distribution networks and the sub-sea links, and then Hydro-Québec springs a court challenge that its extra-provincial rights are being violated — as they successfully did in the Reversion Act case. Nalcor has already admitted Muskrat Falls and Gull Island could only run at 20 per cent capacity without the water management agreement.
Bottom line is, at that point we are trapped.
And, in a hauntingly familiar echo, the Supreme Court of Canada found: “It was argued by the attorney general of Newfoundland that control over the power generated at Churchill Falls is essential for the effective management by Newfoundland of its water resources and to meet the energy needs of the province. However, it is not for this court to consider the desirability of legislation from a social or economic perspective where a constitutional issue is raised.”
In summary, the reasons I am taking the government and Nalcor to court has nothing to do with which parties I ran for the leadership of. It has nothing to do with how many votes I received in the last provincial election.
It has everything to do with stopping my own government from harming
me and other Newfoundlanders and Labradorians illegally.
In the future, it would be in The Telegram’s interest and, more importantly, the interest of the people, to give the accurate details of this story.
Please drop the immature commentary and stick to the relevant facts, so your readers understand what is actually taking place in a story that threatens to touch all of them in a very serious way.
Brad Cabana writes from Hickman’s Harbour.