Cabana’s court challenge fails

Andrew Robinson
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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.”


Québec courts

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.

Twitter: @TeleAndrew

Organizations: Hydro-Québec, Supreme Court, Nalcor Energy Canadian Charter Churchill Falls Generating Station Progressive Conservative parties.The PC Party Liberal Party

Geographic location: Newfoundland and Labrador, Hickman, Québec Churchill River

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Recent comments

  • Ray
    August 09, 2013 - 18:37

    I meet Mr. Cabana outside the court house, and asked him did he know what he was in for? I mean the Conflicts of Interest. And in this province the people in them do not get out of them unless forced. I then provided him with the Board of directors of Nalcor. Of which one happens to be from the previous government and another was from the law firm of Ms. Butlers husband. I would have guessed the out come of his hearing. Was it a Conflict of Interest I believe Mr. Cabana is right, it was. This government will now try to break Mr. Cabana. Have a public inquiry see who is who? And how he is trying to help everyone in this province. I know. Then move to another court with no interest.. As for the Upper Church Hill. Under contract law if a contract is so unfair to one party that party is aloud to consider the contract void. How fair is the Upper Church Hill contract.?

  • facepalm
    July 29, 2013 - 21:29

    Brad if you had any creditability then more people may listen. I see where your going with cheap advertising in the political arena. I mean the what 25-30k you have spent in fighting this case is money well spent for getting a name out there ( good or bad) for a future run for a political appointment in the province or maybe federal running is your game? Muskrat falls will not fail, it may not be the golden egg but long term the province will be better off with it than without.

  • Jeez
    July 29, 2013 - 20:58

    A fool and his money... . This guy just doesn't know when to quit. What is he now, 0 for 10. How many times does he have to lose before he finally gets it. If he keeps this up the name Cabana is going to, if not already, be synonymous with foolish decisions.

  • Bern.
    July 29, 2013 - 20:21

    Brad, who really cares what you think. Why don't you do us all a favour and go back to the mainland ,. We have enough idiots here now without YOU.

  • EDfromRED
    July 29, 2013 - 19:26

    The media is this province can't afford to offend the government too much. They'll take away the NLC, Lotto and other Gov agencies ads. With all the fuss over how bill-29 robs the public of needed knowledge and limits the access the press have, you'd think the media would start a court challenge. Nope. They don't even mention it to the Premier or ministers, the very few times they interview them. I think next election the public should be allowed to witness and ask questions during debates, maybe they'll go where the mainstream media fears to tread.

  • Cabana boy WTH
    July 29, 2013 - 17:49

    Media needs to stop chasing the clowns around. They are getting the damn attention they are looking for. Stop wasting are time with this foolishness.

  • brad
    July 29, 2013 - 14:53

    urg - this guy again? Does Cabana have nothing else to do aside from proclaiming that he is the provinces Savior? knows best? He would be better of spending his money for a real cause in this province that would make a difference! Personally, I turn over the tv anytime this guys makes an appearance to whine about something else... Yes, hydro rate will increase, but they are going to increase whether this project goes ahead or not. While most people think of the increase to them in the near future...over the next 30 years this is the right project. Lets face it, the oil in this province isn't going to last forever.

  • Hunger Strike
    July 29, 2013 - 12:44

    I would pay money if Brad Cabana went on a hunger strike. I will not donate to some webpage he has started to pay for his court challenges.

  • john
    July 29, 2013 - 10:57

    To tell this guy his opinion doesn't count as he is front eh mainland originally shows a bias that is political in nature. All members of the PC party who are the ones criticizing him please stand up?

  • Paul
    July 29, 2013 - 10:54

    I have to agree with Brad on this one. If anyone has read anything about the original Churchill Agreement we can conceivably lose control of CFLco and therefore Churchill Falls altogether if we ever had to go to Hydro QC for a loan. The # of shares for QC Hydro would increase giving it increased ownership. There is no harm in pausing the project til the QC Hydro case is complete at least. It is better for it to cost more down the road than cost us everything further down the road. Caution is needed here not a damn the torpedos attitude the government is spouting. It was that thinking that got us into the Churchill Falls fiasco in the first place. We couldn't get an independent loan without the agreement of QC back then and the conditions as set by Nova Scotia now along with the court challenge has the potential to do the same thing. PAUSE the dam project!!!

  • Cyril Rogers
    July 29, 2013 - 10:51

    I applaud Mr. Cabana for taking on this nearly impossible task, whatever his motivations. He is correct in that the project is a colossal blunder and needs to be stopped. All of you critics who don't even have the courage to print your own name to your smear comments, can learn a few things from Mr. Cabana's persistence.

    • Capt Ahab
      July 30, 2013 - 15:43

      He doesn't need your applause, he needs an intervention. But if you want to encourage this self destructive behaviour then open your wallet because he needs that more that your applause. Somehow I doubt you will be making a donation.

  • jockoontherocko
    July 29, 2013 - 09:43

    Brad Cabana = Megalomaniac . This guy thinks he's NL's saviour when in fact he's the biggest joke ever played on us. If he is right in the future it's not because of knowledge it's because he got lucky on the flip of the coin and landed on the correct side.. If he had gotten to run for the PC party he would be on their side now and in support of MF's. In other words, the other side of the coin. This guy is looking for a place to happen. He's been a Liberal wannabe and a PC wannabe. So which is it Brad? Left or Right? I don't think you know because it's what ever suits your political ambitions of the day. The biggest NL joke ever. What fool would bankrupt his family after being shut down by a court? Apparently Brad Cabana. He knows more than the lawyers, judges, hydro experts, and every other NL'er. Our saviour as come from away to save our poor souls. We're not smart enough to do it ourselves. Pffffftttt. Joke of the century.

  • Henri
    July 29, 2013 - 09:23

    How many cases/political contests has Brad won? He'll keep doubling down until he wins something, or he loses the family grocery money. I don't think he realizes the reality of his life/situation; his mirror is broken. His latest twitter fundraising appeal to every celebrity name except the two Popes is indicative of the real problem.

  • Brad is Correct - ignore him at your peril
    July 29, 2013 - 08:33

    This project will fail for a combination of the following reasons: North Spur soil conditions, it cannot compete with cheap power from the natural gas glut, high construction costs, legal problems regarding water rights and environmental issues. Not only do we not need the power, we could greatly reduce our current energy demands with better buildings, add more wind power, and develop some of the much cheaper hydro power on the Island, or add turbine capacity to the upper Churchill and use it for peaking. Brad is forcing the legal fiaso out into the open. Former PUB director, former justice deputy minister, professors and engineers have been trying to warn the public, but we have a bad government that whose policies are a toxic mix arrogance, corruption and ignorance. If this fails now, we are out a billion dollars. If it fails later, we are out ten times that. Power bills will go up until we revolt, and the balance required will come out of tax revenue, impoverishing education, civil infrastructure and medical care via additional austerity (deferred maintenance of roads and schools, understaffed health care, layoffs etc.). Kill Muskrat falls now, cut the losses and thank Mr Cabana for his valuable contribution. Then set up a stabilization fund and start paying down the debt.

    • Don
      July 29, 2013 - 17:51

      Thank you --- we will.

  • Fred Penner
    July 29, 2013 - 08:22

    It seems to me, Mr Cabana, that you have gambled on the court challenge and used it to make a name for yourself to possibly aid you in your future political aspirations. Problem is that the courts didn't buy it and now you a re left olding the bag. You might consider a more thorough risk asessment prior to taking on future gambles.

  • Harvey
    July 29, 2013 - 08:13

    Why does the media pay so much attention to such idiocy? Cabana, has proved it so many times,holds not one shred of credibility.

  • Robb
    July 29, 2013 - 08:07

    Who in their right mind would give brad cabana a nickel? Hey brad, can't you take a hint. Man, you need a hobby, maybe knitting or macramé.......and please, don't go away mad, just go away.

  • Harvey
    July 29, 2013 - 07:44

    It boggles the mind...why does the media give so much attention to such idiocy? He holds not one shred of credibility.

  • Calvin
    July 29, 2013 - 07:29

    Where did we dream this joker up? Cabana has been one pointless story after another since he decided that he wanted to run for politics a couple years ago. Neither political party is going to touch this guy with a 10 foot pole. Nice of the judge to get him to pay the court bill for this little fiasco.

  • Rance
    July 29, 2013 - 06:54

    You may not favour his actions and his behavior is tough to explain at times but there is no one with a bigger set than this guy and if I can take anything from this, he sure gives apathy the back of the hand doesn't he?

  • Don
    July 29, 2013 - 06:38

    This guy must be nuts. Go away Brad and stop wasting the courts time. You had your 15 minutes of fame.

  • Brad Cabana
    July 29, 2013 - 06:05

    For the record, the damages I cited to myself, and therefore every Newfoundlander and Labradorian are FAR greater than property taxes. They include massive rate hikes, income tax hikes, property devaluations, and the actual bankruptcy of CFLCo - which may well see us lose complete ownership of the Upper Churchill to Quebec. I also cited the fact that we can not be put through this harm by an unconstitutional act og government - which the water management agreement is. So, bottom line, you don't need to believe me, just ask yourself: Why is Hydro Quebec suing us and how many cases has Quebec lost vs us? Finger pointing can wait til later. Right now we need to stop this project in its tracks to avoid complete disaster - other than the billion or so already wasted.