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N.L. asks Hydro-Quebec to renegotiate 1969 contract
The Canadian Press
Date: Monday Nov. 30, 2009 5:45 PM ET
ST. JOHN'S, N.L. After decades of failed cajoling and court action, Newfoundland and Labrador Premier Danny Williams says a fresh and "compelling" legal argument is behind another appeal to Quebec to reopen the Churchill Falls hydroelectric deal.
The head of his province's energy corporation wrote Monday to Hydro-Quebec, asking it to weigh "good faith" changes to the pricing terms of the contentious 1969 agreement.
Nalcor Energy president Ed Martin said an unforeseeable spike in the value of that power means Quebec is buying Labrador's energy for a small fraction of its real commercial worth. The 65-year contract doesn't expire until 2041.
"We have a gross inequity," he told a news conference. He referred to but did not cite sections of Quebec's Civil Code that were changed in 1994. He said legal opinions collected by the Williams's government in the last three years and passed on to him three weeks ago compelled him to act.
"We feel the grounds exist to require Hydro-Quebec to renegotiate the pricing terms of the power contract under certain provisions of the Quebec Civil Code.
"We believe this situation, as long as it is outstanding, to be unjust and to refuse to renegotiate the pricing terms is inconsistent with the obligation imposed by the law of Quebec to act in good faith in all legal relationships including, more specifically, the negotiation and ongoing performance of contracts."
Hydro-Quebec declined comment on the request to reopen the deal.
Williams was asked why, if the 1994 changes amount to a new legal hammer, the province didn't swing it sooner.
"Well, from our perspective, we can only do what we did. And we went back and, as I said, it was all spurred by various opinions from various people, and people within Justice that, you know, something should be done about this contract. It's just too bad to allow it to stand."
Martin was short on details when asked whether there's any legal precedent to support the notion of retroactively applying "good faith" legal duties to a deal struck in 1969.
He would only say he is relying in part on a legal opinion from Montreal law firm Irving Mitchell Kalichman, prepared with help from Jean-Louis Baudouin, formerly a judge with the Quebec Court of Appeal.
Baudouin was also involved in drafting the Quebec Civil Code, Martin said.
Kurt Johnson, a lawyer with Irving Mitchell Kalichman, declined to comment when reached Monday.
Williams has bitterly complained the agreement amounts to dumping his province's hydroelectric power on Quebec's doorstep. He told the legislature Monday that Hydro-Quebec earned about $1.7 billion from the contract last year, compared with about $63 million collected by his province.
Overall, he says the deal has so far reaped some $22 billion for Quebec but only about $1 billion for Newfoundland and Labrador.
The province has previously challenged the fairness of those terms all the way up to the Supreme Court of Canada and lost.
Williams has also recently lashed out at Hydro-Quebec for its tentative deal to acquire New Brunswick's power utility for $4.75 billion, saying it would hamper plans to develop the Lower Churchill hydroelectric project.
But both Martin and Williams denied the latest effort to reopen the Churchill Falls deal has anything to do with that.
Martin has asked Hydro-Quebec to respond by Jan. 15.
He would not discuss whether the energy corporation would take the Quebec utility to court if it refuses to renegotiate, as it has repeatedly done in the past.
"We'll cross that bridge when we come to it," Williams added.
Opposition members of the house of assembly accused the premier of raising false hopes.
"This is not about creating expectations," Williams responded. "This is about righting a very serious wrong.
"We are not prepared to give up on this under any circumstances whatsoever," he added, citing "enormous " losses to the province under the Upper Churchill contract.
Martin said the current purchase price under the deal is one-quarter of one cent per kilowatt hour. A renewal contract fixes that price at one-fifth of one cent for the 25-year period starting in 2016.
"This will mean that, for the remaining 32 years of the power contract, Upper Churchill power will be sold to Hydro-Quebec for less than five per cent of its recent commercial value."
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