Brad Cabana, a political blogger and small businessman, alleges that various constitutional violations should halt the $7.7-billion development underway in Labrador.
He is representing himself in provincial Supreme Court in St. John's where he cross-examined a senior project manager on a related affidavit. Cabana is trying to establish that there are issues serious enough to merit trial at a later date.
He asked Gilbert Bennett, Nalcor Energy vice-president in charge of Lower Churchill development, about efforts to control water flows between the Churchill Falls power plant and Muskrat Falls.
Cabana is arguing that changes to the provincial Electrical Power Control Act, and a subsequent water management agreement, violate Hydro-Quebec's water flow rights on the Churchill River.
In sometimes testy exchanges, Bennett told the court that the water management agreement does not interfere with pre-existing power contracts.
Bennett said co-ordinating river flow between the Churchill Falls and Muskrat Falls plants would minimize energy waste and help avoid power shortfalls.
Cabana believes the project is rife with legal uncertainties that could be disastrous for the province once it's built. He has no formal legal training and has said he has spent more than $10,000 of his own money to argue the case in court.
Cabana asked Bennett if the Muskrat Falls development, which got underway last year, should be stopped until it undergoes a constitutional review.
Bennett said power shortages for Newfoundland and Labrador are forecast for 2019 unless other sources are found. Muskrat Falls is to produce first hydro by 2017. Any delay would hike construction costs and require more expensive options that would cause ratepayers "irreparable harm," Bennett said.
"We have an obligation to meet the province's energy needs and I'm not prepared to say we can't do that."
The multi-pronged challenge includes Cabana's assertion that the province unjustly denied voters a referendum on the project. 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 say.
Cabana asked Bennett to describe Crown corporation Nalcor Energy's involvement in the Innu ratification process. Bennett confirmed that Nalcor provided an undisclosed amount of funding for community consultations and other activities but did not deliver information directly.
Bennett said that support was part of the Innu impact and benefits agreement. He could not recall reviewing the ratification question but said Nalcor was looking for a transparent and "clear demonstration of support for the project."
The Innu voted overwhelmingly in 2011 to ratify agreements linked to Muskrat Falls. They offer compensation for flooding from the Upper Churchill dam in the 1960s, plus hunting and fishing rights over a huge swath of territory along with a share of Muskrat Falls profits.
Outside court, Cabana said he was pleased that Bennett confirmed Nalcor's involvement in funding the Innu ratification process.
But Innu Grand Chief Prote Poker, who was awaiting cross-examination on his own affidavit, said ratification support is typical for such developments.
"It's a process we've adopted like with Voisey's Bay," he said outside court of funding provided by Brazil mining giant Vale as it finalized its nickel operation in Labrador. "We have the same process for all agreements that are this size."
Poker said he's baffled that Cabana would challenge Muskrat Falls, a project the Innu negotiated over a span of 30 years.
"I think it's a good deal for us."
Cabana later questioned Poker in court on the extent to which the Innu people understood Muskrat Falls agreements before voting on them. Poker said elected leaders summarized the most important aspects of complex legal documents.
"The Innu are not stupid," Poker said when Cabana asked if anyone advised leaders that the deals required at least 60 per cent support.
Cabana's challenge is scheduled in court through Thursday. Proceedings stalled in February when he unsuccessfully argued that Judge Gillian Butler should step aside over what he described as her personal and professional ties.
Butler is married to a partner in a law firm representing former premier Danny Williams in a defamation suit and countersuit involving Cabana. She ruled that Cabana failed to establish that informed, reasonable people would conclude she is biased.Suggest a correction