When I was a kid, there was always a lot of excitement when Thomas Amusements came to town. The travelling amusement park would show up out of nowhere and capture the imagination with its games and rides. It was a mix of spectacle and fun. But after a while, the rides made you queasy, and eventually the carnival had to leave town.
I was reminded of this as I watched Brad Cabana launch his constitutional challenge of Muskrat Falls. It’s been a few years since Cabana showed up out of nowhere to capture the imagination of the province’s political scene. His entrance onto that stage was to attempt to seek the leadership of the Progressive Conservative Party, left void by Danny Williams’s sudden resignation. It was more spectacle than fun, and it ended in bitterness and accusations of betrayal. Cabana’s latest legal gambit seems destined for a similar outcome.
Cabana is not a lawyer, but he is currently juggling a heavy caseload. He is involved in a series of defamation suits and countersuits involving Williams, Premier Kathy Dunderdale, and Tourism Minister Terry French. Then there’s his legal bid to stop Muskrat Falls on constitutional grounds. Cabana is representing himself in each and every case.
The Muskrat Falls case is currently on hold as Cabana tries to have the judge step aside due to a perceived conflict of interest. Judge Gillian Butler is married to a partner in Williams’s old law firm, who just so happens to represent the former premier in the defamation case with Cabana. Cabana argues Butler’s bias could scuttle his constitutional challenge and force him to pay costs. He argues that paying damages would cripple Cabana’s ability to finance his defamation case.
The judge will make a decision next week.
As for his challenge, Cabana argues Muskrat Falls must be stopped due a cocktail of legal uncertainty and constitutional breaches. The single biggest breach appears to be the government’s failure to hold a province-wide referendum to seek approval for the project — something that has never been done for any major industrial development in the province’s history.
There is no principle in law that says this is a requirement. There is no reference to it in the constitution. But because the Innu Nation held a ratification vote on the New Dawn agreement (which encompasses land claims, Upper Churchill redress, and a Muskrat Falls benefits agreement), Cabana argues everyone in the province is entitled to a similar form of direct democracy.
There’s a reason people go to law school.
Cabana soldiers on
The government’s handling of Muskrat Falls may have been politically clumsy. It may have run roughshod over important institutions such as the Public Utilities Board. It may have offended people’s sense of good government and due process. But it wasn’t illegal or unconstitutional. If it was, Cabana wouldn’t be acting alone, and he certainly wouldn’t have to represent himself. The 2041 Group — which also opposes Muskrat Falls — is populated by lawyers. In its constant legal criticism of the project, the group never once suggested the sanctioning process was unconstitutional (though the group disliked it for many other reasons).
But Cabana soldiers on. His political battle against Muskrat Falls has become a legal one. He has exposed himself and his family to enormous financial risk. Cabana’s sensitivity to the possibility of losing and being forced to pay costs is at the core of his bid to have the judge removed. Cabana says he is doing it because his cause is just. His critics argue he simply craves attention.
Journalists like me have been criticized for feeding that need. People ask why we give Cabana and his legal escapades so much coverage. My response is simple: whatever you think of Brad Cabana, this IS a constitutional challenge of Muskrat Falls. That event in itself is significant. But while the event is significant, the legal arguments behind it are not. They may capture the imagination of the people who oppose Muskrat Falls, but they are unlikely to sway Judge Butler or any replacement judge that Cabana could secure. Much like the travelling amusement park, the initial hearing was a mix of spectacle and fun. But the longer it went, the queasier you got. And it may just be time for the carnival to leave town.