Bill 75 – the AbitibiBowater expropriation bill – contains a clause which holds that no legal action may be taken against the Crown as a result of anything done in the bill or as a consequence of the bill.
It’s a privative clause, an idea from administrative law that shields an adjudication panel from judicial review of its decision. In the expropriation bill, the cabinet is established as the administrative panel which will set compensation for assets expropriated under the bill.
Nice power if you can get it.
The Premier has a thing for privative clauses.
He argued, for example, that such a clause existed in the 1985 Atlantic Accord. In Ruelokke v. Government of Newfoundland and Labrador, the provincial Crown argued that a section of the agreement which said that the decision of a panel to appoint a chief executive officer was binding on both the provincial and federal governments (the parties to the agreement) really meant that no courts could review the matter.
The judge in the case rejected the argument flatly.
He can read plain English.
In that context, read what uncomfortable words the current Premier uttered on privative clauses when he was leader of the opposition, in debate on a bill regarding Fishery Products International. Under section 11 of Bill 65:
11.1 (1) An action or proceeding, including an action or proceeding for compensation or damages, shall not be instituted or continued against the Crown or a minister, employee or agent of the Crown based on a cause of action arising from or incidental to the enactment or application of a provision of this Act.
(2) A cause of action against the Crown or a minister, employee or agent of the Crown arising from, resulting from or incidental to anything mentioned in subsection (1) is extinguished.
Bill 75 – the AbitibiBowater expropriation - contains the same sort of wording in section 11 of that measure. There’s also a specific clause earlier on that quashes a specific court case arising from earlier legislation enacted by the Grimes administration in dealing with Abitibi Consolidated as it then was.
Back then – March 2002 - this is what Danny Williams said about privative clauses:
It did not have to happen. We have a black eye now on the business reputation of this Province. People do not like heavy-handed intervention. They do not like it, and that is what happened in the business community. The national media are looking at it and they now see our intervention as heavy-handed. If it had happened back in April of last year, back in May of last year, there would have been no problem.
The hon. Member for Lewisporte talked about his concern about a privative clause. We all share that concern. There should be no need for a privative clause. There should be no need to hide behind your mistakes, so that people who have a right to sue you can rightfully sue you. We have done it; it is out there. You have this unique legislation that talks about privity, so you cannot sue us because we made mistakes. That is wrong. That could have been prevented. The legal opinion that you had last spring said that you could change that legislation for public policy reasons, and you did not do it.
How times change.
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