Here's to the crazy ones, the misfits, the rebels, the troublemakers, the
round pegs in the square holes... the ones who see things differently -- they're
not fond of rules... You can quote them, disagree with them, glorify or vilify
them, but the only thing you can't do is ignore them because they change
things... they push the human race forward, and while some may see them as the
crazy ones, we see genius, because the ones who are crazy enough to think that
they can change the world, are the ones who do.

Steve Jobs
US computer engineer & industrialist (1955 - 2011)

Saturday, May 25, 2013

Muskrat Falls is Constitutionally challenged

It is just over a week to go before the Charter challenge resumes over the Muskrat Falls project in the Supreme Court of Newfoundland and Labrador. For the next several weeks I will be focusing soley on this challenge, so blogging will have to go on hold. However, a few thoughts on what has gone on with the federal and provincial governments in relation to this challenge should be passed along.

Back in December, 2012, during the initial hearing, I was somewhat amazed the provincial government had not submitted one piece of evidence, or argument, to back it's position that the 2007 amendments to the Electrical Power Control Act [EPCA] (brought in by then fearless leader Williams) and the subsequent water management agreement were constitutional. Not one word of the provincial government's argument addressed these two agreements. Think about that for a minute. Here a piece of their key Muskrat Falls legislation is being challenged and not one word. Not one piece of evidence was submitted to back their position. Not one.

We went into the Supreme Court in December expecting to fight a four day battle over this legislation. Although it isn't the whole case, it is 75% of it. There we are in the Supreme Court and the Justice tosses out that portion of the case, because in her estimation the service of the papers to the federal Attorney General was not complete enough. Service is required when a constitutional question is being raised and a law could be struck down. However, it was established from earlier court hearings that a declaratory decision regarding the constitutional status would not be permitted at this time, because that would be a final result and an injunction could not deliver final relief. Here is one question that weighed on me: If a constitutional decision can not be decided during an injunction hearing then why did the federal Attorney General need to be served at all? In any case, it was not allowed.

With a minimum of ten days notice required to serve the feds it appeared my case was dead in the water - pardon the pun. However, a subsequent challenge to the Judge's impartiality ate up the remainder of the court days and a postponement allowed me to serve the Attorney General - who subsequently decided not to intervene. During a conference call with the Judge and the government/Nalcor/Innu lawyers in May, 2013, it was decided by the Judge to allow the ECPA and water management agreement back in as the feds had been served with everything and declined to intervene. The provincial government's lawyer immediately requested time to submit documents regarding these peices of legislation and the Judge gave them until May 21, 2013 to do so.

That is where my question comes in. It is a troubling one, and one that has been weighing on my mind. Why did the provincial government not enter any argument or documents supporting their position on the EPCA and water management agreement when we went to court the first time - back in December - yet immediately rose to do so when the Judge reversed her decision?

To me it raises the question: Did the provincial government have inside information that the Judge was going to throw that part of my argument out? Sound far fetched? How do you explain the government's inclusion of argument suddenly then when it became clear that the legislation would be included? It seems to me the provincial government must have been liaising with the federal government, and come to the conclusion the feds had not been served properly, so there was no need to file an argument or evidence as it would be thrown out.

That begs the question: Is it right and ethical for the federal government to conspire with a provincial government to thwart a constitutional challenge by a citizen? I use the word thwart because at no time, despite numerous written and oral appeals to do so, did the federal Attorney General comment service was not adequate - or any comment at all. By doing so he caused that part of the argument to be thrown out in the earlier hearing. In fact, it was not until I wrote a personal letter to the Prime Minister, copying in the Attorney General and members of the press, that a response finally came back from the feds saying they would not intervene. I had to formally accuse them of undermining fundamentals of Canadian law, the right to present one's case, before a response came back - it took only two days.

So, it is quite apparent on the face of it that my own federal government, the defenders of the Charter of Rights and all aspects of the Constitution of Canada, were in fact assisting my provincial government in undermining a charter challenge. A charter challenge over the Muskrat Falls project. A project that the federal government signed a loan guarantee for. For people who like to believe there is no greater sanctity than the rights of a Canadian citizen this is troubling. For me this is troubling. Win, lose or draw this is troubling. It speaks to the rot in some ways that we have witnessed in Ottawa lately, but yet this is far more dangerous. Our rights are the one thing that rich and poor share alike. It is what defines us at home and abroad. It defines our values and core beliefs. Yet, apparently, it can be traded in over a hunk of concrete on a river. The charter challenge of Muskrat Falls resumes on June 4,5,6 and longer if necessary.   


  1. That was the precise reason for Harper's scrapping of the 'Court Challeges Program' in 2006. Shortly (mth or two) after being elected. "I won't be doing anything unconstitutional" he quiped


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