The Guardian (Charlottetown)

Court sides with Hydro-Quebec

No legal obligation to reopen the 1969 Churchill Falls energy deal

- BY JIM BRONSKILL OTTAWA

The Supreme Court of Canada says there is no legal obligation to reopen the 1969 Churchill Falls energy deal that has been highly profitable for Hydro-Quebec but much less so for Newfoundla­nd and Labrador.

In a 7-1 ruling Friday, the high court says it cannot force the parties to renegotiat­e the contract even though the arrangemen­t has turned out to be unexpected­ly lucrative for the Quebec utility.

Under the deal signed decades ago, Hydro-Quebec agreed to buy almost all the energy generated by the power plant on the Churchill River in Labrador.

The contract, covering 65 years, set a fixed price for the energy that would decrease over time. It has earned more than $27.5 billion for Hydro-Quebec to date and about $2 billion for Newfoundla­nd and Labrador.

Churchill Falls (Labrador) Corporatio­n Ltd. went to Quebec Superior Court in 2010, arguing unsuccessf­ully that the sizable profits from electricit­y were unforeseen in 1969 and that HydroQuebe­c had a duty to renegotiat­e the contract.

An appeal court affirmed the ruling, but the Supreme Court agreed to hear the corporatio­n’s case.

In its ruling, the high court says there is no legal basis in Quebec civil law for the claim advanced by the corporatio­n, known as CFLCo, part of Newfoundla­nd and Labrador Hydro.

A majority of the Supreme Court says CFLCo was seeking to undo certain aspects of the contract while keeping the ones that suit it. In effect, it was asking Hydro-Quebec to give up the benefits it obtained in exchange for the sacrifices it made to get the massive project up and running a situation from which CFLCo has been benefiting since 1969 and continues to benefit today.

“In the final analysis, CFLCo has not provided any compelling factual or legal basis for the courts to reshape the contractua­l relationsh­ip it has had with Hydro-Quebec for the last 50 years,” the court says.

The landmark decision could have a profound influence on relations between Quebec and Newfoundla­nd and Labrador, given long-standing tensions over the historic energy deal. The project, championed in the early days by then-Newfoundla­nd premier Joey Smallwood, has been a persistent sore point.

The Churchill River in Labrador drops more than 300 metres over a stretch of less than 32 kilometres, making the falls one of the world’s most significan­t sources of hydroelect­ric power. A massive undergroun­d power station, carved out of solid granite, produces over 34 billion kilowattho­urs of energy annually.

In its submission to the Supreme Court, CFLCo said the energy market and regulatory landscape in 1969 were vastly different than they are today: energy was a public good with no real market value, and exports were simply a means of disposing of surpluses and required legislativ­e authorizat­ion. Hydro-Quebec was a public service provider, required by law to sell electricit­y to Quebec consumers at a low price.

Over the decades, everything has changed, CFLCo argued. Energy has become a supply-anddemand commodity with lucrative export markets.

In turn, Hydro-Quebec’s mandate evolved and the utility has made billions of dollars selling power to Quebecers and billions more exporting to previously non-existent markets at 20 to 40 times the contract price, CFLCo told the court. Meantime, the corporatio­n remains stuck in 1969, with a fixed, declining electricit­y price.

Hydro-Quebec argued that under the contract it assumed the risk associated with any fluctuatio­ns in the market value of energy, which made financing the Churchill Falls project possible. In return, Hydro-Quebec had assurance that the price set in the contract would provide the utility, for the full term, with stable supply and protection against inflation.

 ?? CP PHOTO ?? Hyrdo Quebec lawyer Pierre Bienvenu speaks to reporters following a ruling at the Supreme Court of Canada in Ottawa on Friday.
CP PHOTO Hyrdo Quebec lawyer Pierre Bienvenu speaks to reporters following a ruling at the Supreme Court of Canada in Ottawa on Friday.

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