ST. JOHN'S, N.L. — In 2017, floodwater tore through the small Labrador community of Mud Lake and parts of Happy Valley-Goose Bay.
A group of affected residents and landowners launched a lawsuit against the provincial government and Nalcor Energy, alleging the flooding was because of the Muskrat Falls hydroelectric project. That lawsuit was certified as a class action in June by the Newfoundland and Labrador Supreme Court.
Now, both the province and Nalcor are seeking to appeal the decision to certify the lawsuit. In a Court of Appeal decision on Aug. 24, the courts granted the province and Nalcor leave to appeal the certification.
The lawsuit, which has been ongoing since 2017, claims the Crown corporation and the provincial government were negligent and created a nuisance with the Muskrat Falls project. It alleges the building of the dam altered the ice buildup on the Churchill River, leading to the flooding in Mud Lake and Happy Valley-Goose Bay.
The province sought leave to appeal the decision on five different factors, including that it can’t be held responsible for the acts of omissions of Nalcor and that a class action is "not a fair and manageable means of meaningfully advancing class members’ claims."
The three justices who heard the arguments allowed the province to appeal only on the grounds that it isn’t liable for Nalcor actions or omissions. If it is successful in this appeal, the provincial government will be removed from the lawsuit.
Nalcor was granted an appeal on whether the facts as pleaded in the case established a cause of action. Essentially, the court needs to establish if Nalcor owed a duty of care to the members of the class-action lawsuit, whether they breached that duty and whether the flooding was a consequence of the breach of duty.
The province completed an independent review of the flooding in 2017, which determined the flooding was not because of the Muskrat Falls project.
“The high freshet discharge that occurred during May 2017 was caused by natural events, particularly the rain-on-snow even in the middle basin of the Churchill River and the high rainfall event just prior to and during the May 2017 flood,” the final report by Dr. Karl-Erich Lindenschmidt concluded.
Not everyone agreed with the findings of the report when it was released, including Robert Way, a scientist who studies permafrost and glaciology and teaches at Queen’s University in Kingston, Ont.
Way, who is from Happy Valley-Goose Bay, said there wasn’t enough monitoring done of the ice thickness on the river to determine the cause.
He told SaltWire Network at the time that if Nalcor had been collecting the data that it should have been collecting, it would have been able to reduce the impact of the flood, and could have predicted that it was likely to occur, and correspondingly could have warned people.
Evan Careen is a Local Journalism Initiative reporter covering Labrador for SaltWire Network
