Nfld. & Labrador

Protesters hope to have injunction for Muskrat Falls site overturned

Eldred Davis didn't know he could question the validity of the injunction Nalcor pursued to keep protesters out of the site as a legal defence, but he plans to do so now.

'I'm very certain that we will be successful,' says man challenging injunction

Eldred Davis is leading the challenge of the injunction. (Katie Breen/CBC)

Eldred Davis didn't set out to question the validity of the Muskrat Falls injunction via the court system, but he unintentionally began the process Wednesday while representing himself on a protest-related matter.

While defending himself over breaking the injunction and trespassing onto the North Spur in May, Davis raised concerns about the origin of the court order requiring people not to enter any part of the Muskrat Falls site or interfere with the project.

He told Happy Valley-Goose Bay Supreme Court Justice George Murphy that when Nalcor applied for the court to intervene in October 2016, the company misled Murphy, and the court, on the facts. However, Davis did not specifically address how the court was misled. 

A lawyer for Nalcor vehemently denied the accusation. 

"When I first saw the injunction, I couldn't hardly believe it, really," said Eldred Davis, referencing the time nearly a year ago when the order was produced.

The Muskrat Falls hydroecltric project has employed up to 6,000 people at peak construction, and will account for about one-third of major project spending in Newfoundland and Labrador in 2017. (Nalcor)

"The more I thought about it and the more dishonest I know Nalcor to have been proceeding that, I wondered how the justice system could so quickly accept the application from Nalcor and act on it within a day."

When, during Wednesday's proceedings, Justice Murphy asked Davis whether he'd like to challenge the injunction as a defence in his contempt case, Davis said he didn't realize that was a possibility and that he would like to.

He has admitted to trespassing onto the North Spur May 9 but maintains he shouldn't be prosecuted for those actions because the injunction shouldn't have been in effect in the first place. 

Stick to the injunction

Justice Murphy said Davis is to argue the validity of the injunction only — not whether the project should have been sanctioned.

However, Davis said he doesn't feel the two can be isolated.

Eldred Davis, left, was one of the three protesters jailed late last month. (Katie Breen/CBC)

"[Justice Murphy] may have said it's a separate issue but when it comes down to it, the injunction is granted on information supplied by Nalcor," Eldred said.

"However he deems it — applicable or not — the environment is a major factor and the safety of people [is too]."

Next step

Davis is now expected to submit a written argument to Nalcor. 

Both parties are due back in court in October to determine how to proceed.

I'm very certain that we will be successful.- Eldred Davis

Davis is considering dipping into his Registered Retirement Savings Plan and getting a lawyer to help him with the case.

The Labrador Land Protectors is behind the pursuit and the group's members intend to help with research.

"I mean, we have to try," Davis said.

"Whether we're successful or not — and I'm very certain that we will be successful, I'm very optimistic about that — we will present sufficient evidence that will overturn the injunction."

Previously jailed

Davis previously spent 10 days at Her Majesty's Penitentiary for refusing to sign an undertaking when the trespassing order was first brought to court. 

Jim Learning, who was jailed along with Davis, had his sentence suspended for two years on Wednesday after being found guilty on four civil contempt of court charges related to breaking the injunction and his house arrest orders.

Neither Learning nor Marjorie Flowers, a third protestor who had previously been jailed along with the two men, remain under house arrest.

On Tuesday, Flowers was let out on good behavior while she waits for her hearing.