JFK Court Report: Recent Cases from Newfoundland and Labrador

NunatuKavut Community Council Inc. v. Nalcor Energy, 2014 NLCA 46

The Newfoundland and Labrador Court of Appeal overturned a perpetual injunction against the NunatuKavut Community Council, Inc. (NCC), a body representing Labrador Metis, prohibiting the NCC from interfering with access to the construction site of the Muskrat Falls hydro development project.  The Court found that the project proponent, Nalcor Energy, failed to establish a cause of action (e.g. the tort of interference with economic relations) and therefore was not entitled to a remedy.  The Court also found that the injunction was overly broad and speculative in terms of potential harms.   In obiter, the Court stated that First Nations are not generally entitled to assert a failure to consult as a ‘self-help remedy’ outside of the courts; however, claims concerning the duty to consult and accommodate are not completely irrelevant to any case where an  injunction is sought.  If the claimant asserting the cause of action on which the claim to an injunction is based is the Crown or an agent of the Crown, the question of whether the Crown and the agent have made efforts to comply with their duty to consult and accommodate may be relevant to the exercise of the Court’s decision to deny an injunction on discretionary grounds; for example, the Court might find that the claimant did not come to the court with ‘clean hands’ as required for an equitable remedy.

NunatuKavut Community Council Inc. v. Nalcor Energy, 2014 NLCA 46 (CanLII)