December 22th, 2018, Vancouver, BC, Canada
On December 14, Le Devoir published an opinion written by Mrs. Anne-Marie Voisard on Canada Carbon’s (“CCB”) graphite mine project ("Miller project"). This opinion calls for some clarification.
It must first be recalled that Madam Justice Danielle Turcotte of the Superior Court of Quebec concluded, on November 9, 2018, that the action for damages by Canada Carbon is a "conservatory of rights" action and that it is neither abusive nor a SLAPP action. In particular, she concludes that CCB's action "does not meet the characteristics of a SLAPP action".
Since the Municipality of Grenville-sur-la-Rouge ("GSLR") obtained leave to appeal this judgment to the Court of Appeal, GSLR will therefore have the burden of demonstrating how this judgment is unfounded and must be reformed. Let the Court of Appeal do its work and decide on the issue. In the meantime, allow us to clarify certain elements related to the text published by Ms. Voisard.
The $96 million damage claim
Here, as elsewhere, the focus is on the $96 million damage claim. This figure was not invented to scare or intimidate; it corresponds to the discounted net cash after taxes that will be generated by the Miller project, as assessed by Tetra Tech as part of the preliminary economic assessment (“PEA”). This PEA was published in March 2016, long before any damages lawsuit was filed.
According to the applicable legal principles, he who suffers damage caused by the fault of another is entitled to claim damages equivalent to the "loss he suffers and the gain he is deprived of" (Article 1611, Quebec Civil Code). The sum of $96 million is therefore the damage that is caused to CCB by the fault of GSLR. Is it really reasonable to expect that any company waive its rights and recourse on the grounds that the damages it has incurred are too high?
Illegal acts of the Municipality
Now, here are the facts to remember in connection with GSLR's misconduct.
- In 2016 and 2017, GSLR's former municipal council adopted two (2) resolutions recommending that the Commission de la protection du territoire agricole du Québec (the "CPTAQ") favorably receive Canada Carbon’s request for non-agricultural use of the lots covered by the Miller project.
- Under the former municipal council, an authorized municipal officer issued two (2) attestations to the CPTAQ confirming that the Canada Carbon project complies with its municipal by-laws.
- On December 12, 2017, GSLR's new board adopted a resolution entitled "Notice of non-compliance with the Municipality's zoning by-law" which it sent to the CPTAQ with the aim of blocking the Miller project and the prevent obtaining the necessary authorizations for carrying out the project.
- This resolution was adopted by the municipal council and not by an authorized municipal officer, as required by section 58.1 of the Agricultural Land Protection Act ("LPTA").
GSLR's new board, by acting as it does, is giving itself a power it does not have and it is clearly in violation of section 58.1 of the LPTA, section 246 of the LAU and the Mining Act by blocking the Canada Carbon project. We are certain Mayor Arnold is aware that the GSLR’s actions are in violation of the laws as he has recently publicly stated that he thinks the laws should be changed.
Worse, right now, as the debate gets under way in the courts, GSLR is in the process of amending its regulations to ban extractive activities in the area of â€‹â€‹the future Miller project; again, here, in disregard of the most basic rights of CCB. In addition, by attempting to change the area where extractive activities are allowed further confirms that extractive activities were allowed at the time GSLR’s council filed a non-compliance certificate.
We agree with Madam Voisard that democracy is important. However, it is necessary to recall that the fundamental value of democracy also implies respect for the Rule of Law and the laws, and its corollary which is the obligation to repair the damage caused to others by its fault. Municipal elected officials also have obligations, one of them being to respect the laws and the rights of corporate citizens. Should Canada Carbon accept that GSLR is flouting its rights without defending itself?
And social acceptability
All the opponents say and repeat to anyone who wants to hear that there is no social acceptability for the Canada Carbon project. Social acceptability involves a dialogue that opponents of the Canada Carbon project reject. Worse still, they sabotage the process leading to it and conclude that the social acceptability does not exist.
We propose to restore a frank and open dialogue, where all stakeholders will be heard, where every concern or issue can be addressed, including by independent experts. It is only after this comprehensive process that Canada Carbon and GSLR citizens can hope for a satisfactory, win / win agreement that will make this project a better project that considers residents’ concerns.
In closing, allow us to ask Ms. Voisard to indicate on what basis she claims that Canada Carbon is "using all the stratagems" and how the judicial review would be "no less problematic" as she writes.
CANADA CARBON INC.
“R. Bruce Duncan”
CEO and Director
E-mail inquiries: email@example.com
P: (604) 685-6375
F: (604) 909-1163