Sapotaweyak Cree Nation v Manitoba: Duty to Consult and Interlocutory Injunctions
A recent decision by the Court of Queen’s Bench of Manitoba dismissed an application by the Sapotaweyak Cree Nation (“SCN”) for an interlocutory injunction with respect to clearing work for Manitoba Hydro’s Bipole III Transmission Line Project, a power transmission line which passes through SCN’s traditional territory (the “Project”).
Background
In Sapotaweyak Cree Nation v Manitoba, 2015 MBQB, the Court released written reasons for its January 14, 2015 decision to dismiss SCN’s application. SCN had brought an action against the Government of Manitoba (“Manitoba”) and Manitoba Hydro (“Hydro”) seeking various forms of relief, including:
- a declaration that both Manitoba and Hydro owed SCN a duty to consult in relation to the Project;
- a declaration that neither Manitoba nor Hydro had adequately consulted SCN;
- an order requiring Manitoba to consult with SCN on the development of a Crown consultation policy and funding guidelines for consultations;
- an order that Hydro must fulfill any consultation and accommodation obligations it may owe to SCN before proceeding to clear any further land for the Project;
- a declaration that both Manitoba and Hydro must provide adequate funding to SCN to meaningfully participate in the consultation process;
- and various orders relating to the licences and permits issued for the Project.
SCN also brought a motion seeking an interlocutory injunction against Manitoba and Hydro to prevent further clearing for the Project until adequate consultation and accommodation had taken place. In seeking the interlocutory injunction, the issues to be met by SCN were:
- Was there a serious issue to be tried?
- Would SCN be irreparably harmed if no interlocutory injunction was ordered?
- Did the balance of convenience favour granting an interlocutory injunction.
Decision
1. Serious Issue to be Tried
Duty to Consult
SCN argued that the Crown’s duty to consult attached to both Manitoba and Hydro and that neither had satisfied this duty. The Court did not agree that Hydro had a separate and distinct duty to consult from that of the Crown and that this argument did not constitute a serious issue to be tried.
Manitoba admitted that it had a duty to consult SCN in relation to the Project. However, the Court held that since neither SCN’s reserve lands nor the lands they had selected through the Treaty Land Entitlement process would be affected by the 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. SCN had not produced a written consultation record but rather sought to rely on the recollections of Chief Nelson Genaille contained in an affidavit. The Court found that in contrast to Manitoba’s comprehensive written record of consultation, Chief Genaille’s recollection of events was “less than totally accurate” and in some cases “in conflict with documented evidence”.
As well as concerns with the sufficiency of SCN’s consultation record, the Court found that SCN had not lived up to its duty to bring forward relevant information during the consultation process. Specifically, SCN had failed to deliver their Aboriginal Traditional Knowledge report for which Hydro had provided funding.
The Court found that the difficulties experienced by SCN in the consultation process had more to do with SCN’s reluctance to focus on the specific issues relating to the Project than to any significant lack of effort on the part of Manitoba. The Court also rejected SCN’s claim that it was entitled to participate in the preparation of a Crown consultation protocol or consultation funding arrangements, stating that no such requirement existed.
Ultimately, the Court held that Manitoba had fulfilled its duty to consult SCN and as a result there was no serious question to be tried.
Funding for Consultation Process
SCN also argued that Hydro had not provided adequate funding for participation in the consultation process. Although the Court found that Hydro did not owe SCN a separate duty to consult, it addressed the evidence on this issue and was not persuaded by SCN’s claim that the $210,000 in funding that was made available throughout the consultation process had been inadequate.
2. Irreparable Harm
The Court found that the Project would not cause 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.
3. Balance of Convenience
Finally, with respect to the balance of convenience, the Court held that Manitoba and Hydro should be allowed to construct the Project without delay. The Court noted that a number of mitigation measures had been committed to and that SCN could play a role in ensuring that these measures were carried out.
Importantly, the Court also noted that SCN had been provided with a reasonable opportunity to participate in the consultation and accommodation process and that it was their own actions which had reduced their opportunities to engage in this process.