The Supreme Court of Newfoundland and Labrador dismissed an application for interim declaratory relief in relation to the Lower Churchill River Hydroelectric Project.
The applicant Cabana is a self-described political commentator who is “passionately opposed” to the Lower Churchill Hydroelectric Project being constructed in Labrador. He challenged the validity of a referendum held by the Innu Nation to ratify the “New Dawn Agreement”, consisting of an Impacts and Benefits Agreement for the current project, a Redress Agreement for the historic Upper Churchill project, and a Land Claims Agreement in Principle (AIP). The Innu Nation ratified the agreements in 2011.
The applicant further sought a declaration that the recognition of the Innu referendum by Newfoundland & Labrador, while not affording the same right to the citizens of the province, breached section 15 of the Charter of Rights. He also alleged that the Electric Power Control Act, 1994 (ECPA) was unconstitutional due to its extra-jurisdictional effects.
The Court held that the applicant could not satisfy any of the criteria for an injunction under the RJR-MacDonald test. There was not a serious question to be tried. The applicant was not a member of the Innu Nation (he was actually a resident of Saskatchewan) and has no standing in respect of the Innu ratification vote. The alleged “right to require a referendum” is not a principle of fundamental justice. The AIP was put to a referendum of the Innu Nation because of its members’ constitutionally-protected rights. The applicant failed to establish that the impugned sections of the ECPA are unconstitutional.
The Court also found that the applicant had failed to prove irreparable harm, or that the balance of convenience favoured the granting of interim relief. The remedies that he seeks were political, not legal. The Court dismissed the application with costs.