Legal novice's Muskrat Falls challenge hits snag as judge denies delay

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Muskrat Falls, on the Churchill River in Labrador, is shown in a Feb., 2011 file photo. THE CANADIAN PRESS/Paul Daly

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 Brad Cabana, a self-represented legal novice, should have sent the federal Attorney General a copy of his statement of claim. It alleges various constitutional violations that he asserts should halt the $7.7-billion development in Labrador.

Instead, the 48-year-old political blogger and small businessman 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 said.

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. He said Cabana shouldn't be allowed to tie up costly court time to air "personal grievances" that would be better expressed through public protest, the media or at the ballot box.

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 stop construction of 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.

After that initial setback, Cabana focused Thursday on his argument that the province unjustly denied voters a chance for a say on the project through a referendum. He says in court documents that while the Innu Nation was allowed to vote on a related benefits and land package, other provincial residents had no similar input.

Both the government and Nalcor Energy say his claims are without merit.

In a line of questioning that was at times rambling and repetitive, Cabana spent about 90 minutes grilling a provincial bureaucrat about the Innu deal.

There was a chippy exchange at one point after Aubrey Gover, assistant deputy minister of Aboriginal Affairs, offered detailed responses and some historical context. Cabana told Gover that he'd done extensive research and he'd prefer more brevity out of respect for "the court's resources."

Gover was adamant when Cabana asked whether Innu leaders agreed to terms of Muskrat Falls-related agreements under the duress of economic pressures.

"They and their counsel are highly skilful negotiators," Gover said.

The hearing was adjourned late Thursday afternoon after Cabana said he would need "hours and hours" to question Gilbert Bennett, Nalcor Energy vice-president in charge of Muskrat Falls, starting Friday.

Cabana, who has said he has spent at least $10,000 of his own cash to wage the legal battle, declined outside court to comment on the case.

He is not the only critic to question if Hydro-Quebec could challenge Newfoundland and Labrador's ability to manage water flows required for needed output from Muskrat Falls. But he has said 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.

Originally from Saskatchewan, Cabana was drawn by ancestral ties to Newfoundland three years ago. He soon made headlines when, within a year, he ran unsuccessfully first for the leadership of the Progressive Conservative Party and then the Liberal Party despite being a virtual unknown.