Sapotaweyak Cree Nation v Manitoba

Background

The Sapotaweyak Cree Nation (SCN) commenced an action against the Government of Manitoba and Manitoba Hydro in December 2014 in which SCN sought various forms of relief, including: a declaration that both defendants owe SCN a duty to consult with respect to contemplated conduct that might affect their asserted Aboriginal or treaty rights; a declaration that neither defendant has adequately consulted SCN with respect to the Bipole III project; an order requiring Manitoba to consult with SCN on the development of a Crown consultation policy and funding guidelines for consultations; an order that Manitoba Hydro must fulfill any consultation and accommodation obligations it may owe to SCN before proceeding to clear any further land for the Bipole III project; a declaration that both defendants must provide adequate funding to SCN to meaningfully participate in the consultation process; and various orders for the termination, revocation or suspension of the licences and permits that had been issued for the Bipole III project.

At the same time, SCN also brought a motion seeking an interlocutory injunction against the defendants to prevent further clearing of a corridor for the Bipole III project.

The Bipole III project is a power transmission project that includes a 1,385km long transmission line running from a generating station at Keewatinohk in northeastern Manitoba to a proposed converter station in Riel, just east of Winnipeg. The portion of the transmission line that was at issue in this litigation runs from just south of the Pas, MB to just northeast of Swan River, MB. This segment of the line consists of 11.2 square kilometres of Crown land and approximately two square kilometres of private land. According to the Court, none of the land in question was comprised of SCN reserve lands or lands that SCN had selected pursuant to the Treaty Land Entitlement Framework Agreement. However, the project will pass through lands within the SCN’s traditional territory.

Court’s decision

The Court rejected an argument from SCN that Hydro had a separate and distinct duty to consult from that of the Crown, and found that this argument did not constitute a “serious issue to be tried” for the purposes of the test for granting an interlocutory injunction. The Court also rejected an argument from SCN that Hydro was in breach of one of the conditions of the licence it was granted for the project to proceed, and held that regardless of whether any such breach had occurred, SCN has no legal entitlement to enforce the conditions of that licence as a third party.

SCN also alleged that Hydro had not provided adequate funding for participation in the consultative process. Although the Court found that Hydro did not owe SCN a duty to consult separate from that of the Crown, it also addressed the evidence on this issue. The Court reviewed the breakdown of a total of $210,000 in funding that was made available to SCN throughout the consultation process and rejected SCN’s argument that this amount had been inadequate.

With respect to SCN’s argument that Manitoba had failed to fulfill its duty to consult, the Court held that since neither SCN’s reserve lands nor the lands they had selected through the TLE process would be affected by the Bipole III project, the potential for infringement of their rights was “slight”. The Court also held that SCN’s arguments that the consultation process was inadequate lacked any meaningful evidential support. The Court also rejected SCN’s assertions that it was entitled to participate in the preparation of a consultation protocol or consultation funding arrangements; according to the Court, no such requirement, “constitutional or otherwise”, exists. In this regard, the Court noted SCN’s reciprocal duty to “bring forward” relevant information during the consultation process in context to SCN’s failure to deliver a report on their Aboriginal Traditional Knowledge that was being prepared with funding provided by Hydro. The Court ultimately held that Manitoba fulfilled its duty to consult SCN and there was no serious question to be tried in this regard either.

The Court likewise held that the project would not result in irreparable harm to SCN since the potential harm raised by SCN was “speculative at best” and there was no reason it could not be addressed by damages. Finally, with respect to the balance of convenience, the Court held that Manitoba and Hydro ought to be allowed to construct the project without delay. The Court noted that there were a number of mitigation measures committed to and SCN could play a role in ensuring that these measures were carried out. The Court also noted that it had already held that SCN was afforded a reasonable opportunity to participate in the consultation and accommodation process and SCN's own actions had reduced its opportunities to engage in this process.