Sapotaweyak Cree Nation et al. v. Manitoba et al., (2015) 316 Man.R.(2d) 79 (QB)

• Judge: Bryk, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: January 14, 2015
• Jurisdiction: Manitoba
• Citations: (2015), 316 Man.R.(2d) 79 (QB);2015 MBQB 35

Sapotaweyak Cree Nation v. Man. (2015), 316 Man.R.(2d) 79 (QB)

MLB headnote and full text

Temp. Cite: [2015] Man.R.(2d) TBEd. MR.025

Sapotaweyak Cree Nation and Chief Nelson Genaille, on behalf of Sapotaweyak Cree Nation (plaintiffs) v. The Government of Manitoba and Manitoba Hydro (respondents)

(CI 14-01-92744; 2015 MBQB 35)

Indexed As: Sapotaweyak Cree Nation et al. v. Manitoba et al.

Manitoba Court of Queen's Bench

Winnipeg Centre

Bryk, J.

March 2, 2015.

Summary:

Manitoba Hydro, under a licence from the Province of Manitoba, decided to construct a new transmission line (Bipole III), to carry hydro-electric power from its source in northern Manitoba to the City of Winnipeg. Part of the line was to pass through lands which were part of the Sapotaweyak Cree Nation's (SCN's) "traditional" lands. The SCN commenced legal proceedings for declaratory relief and other orders, alleging, inter alia, a breach of the duty to consult. The SCN also applied for an interlocutory injunction delaying construction until such time as adequate consultation and accommodation took place.

The Manitoba Court of Queen's Bench dismissed the application.

Indians, Inuit and Métis - Topic 3

General - Duty owed to Indians by Crown (incl. fiduciary duties, consultation duties and honour of the Crown) - Manitoba Hydro, with the support of the Province of Manitoba, decided to construct a new hydro-electric power transmission line (Bipole III) - The line was to pass through the Sapotaweyak Cree Nation's (SCN's) "traditional" lands - The SCN sought declaratory relief, alleging, inter alia, a breach of the duty to consult by Manitoba Hydro, and sought interlocutory injunctive relief - The Manitoba Court of Queen's Bench held that Manitoba Hydro did not have a duty to consult in the Honour of the Crown separate and distinct from that of the Province of Manitoba - Accordingly, there was no serious issue to be tried or irreparable harm relative to the question of Hydro's duty to consult - The balance of convenience favoured Manitoba Hydro - The application for an interlocutory injunction was dismissed - See paragraphs 26 to 45, 241 to 245 and 258 to 263.

Indians, Inuit and Métis - Topic 3

General - Duty owed to Indians by Crown (incl. fiduciary duties, consultation duties and honour of the Crown) - Manitoba Hydro, with the support of the Province of Manitoba, decided to construct a new hydro-electric power transmission line (Bipole III) - The line was to pass through the Sapotaweyak Cree Nation's (SCN's) "traditional" lands - The SCN sought declaratory relief, alleging, inter alia, that consultation with the Province of Manitoba was inadequate - SCN also sought interlocutory injunctive relief - The Manitoba Court of Queen's Bench dismissed the application - The court examined the consultation process in this case and determined that SCN failed to raise a serious issue to be tried - There was no evidence of irreparable harm because the Province of Manitoba's duty to consult was fulfilled - The balance of convenience favoured Manitoba - See paragraphs 93 to 217, 241 to 245 and 258 to 263.

Injunctions - Topic 790

Granting an injunction - Persons against whom an injunction will be granted - Crown corporations - [See first Indians, Inuit and Métis - Topic 3 and first Public Utilities - Topic 4468 ].

Injunctions - Topic 792

Granting an injunction - Persons against whom an injunction will be granted - Crown agents - [See first Indians, Inuit and Métis - Topic 3 and first Public Utilities - Topic 4468 ].

Public Utilities - Topic 4468

Public utility commissions or corporations - Duties - Duty to consult - Manitoba Hydro obtained a licence under the Environment Act from the Province of Manitoba to construct a new hydro-electric power transmission line (Bipole III) - The licence included numerous requirements respecting potential effects on affected First Nations - The line was to pass through the Sapotaweyak Cree Nation's (SCN's) "traditional" lands - The SCN sought declaratory relief, alleging, inter alia, a breach of the consultation requirements of s. 4 of the licence by Manitoba Hydro - SCN sought an interlocutory injunction, delaying construction - The Manitoba Court of Queen's Bench dismissed the injunction application - The court was not prepared to find Manitoba Hydro in breach of s. 4 of the licence - Even had it found a breach, the court agreed with Manitoba Hydro's contention that SCN was not entitled to enforce that condition as a third party - The prerequisites for issuance of the injunction were not established - See paragraphs 46 to 61.

Public Utilities - Topic 4468

Public utility commissions or corporations - Duties - Duty to consult - [See first Indians, Inuit and Métis - Topic 3 ].

Cases Noticed:

RJR-MacDonald Inc. et Imperial Tobacco Ltd. v. Canada (Procureur général), [1994] 1 S.C.R. 311; 164 N.R. 1; 60 Q.A.C. 241, refd to. [para. 24].

Carrier Sekani Tribal Council v. British Columbia Utilities Commission et al., [2010] 2 S.C.R. 650; 406 N.R. 333; 293 B.C.A.C. 175; 496 W.A.C. 175; 2010 SCC 43, dist. [para. 27].

Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council - see Carrier Sekani Tribal Council v. British Columbia Utilities Commission et al.

Haida Nation v. British Columbia (Minister of Forests) et al., [2004] 3 S.C.R. 511; 327 N.R. 53; 206 B.C.A.C. 52; 338 W.A.C. 52; 2004 SCC 73, refd to. [para. 60].

Pimicikamak et al. v. Manitoba et al. (2014), 308 Man.R.(2d) 49; 2014 MBQB 143, refd to. [para. 192].

Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage) et al., [2005] 3 S.C.R. 388; 342 N.R. 82; 2005 SCC 69, refd to. [para. 194].

Halfway River First Nation v. British Columbia (Minister of Forests) et al. (1999), 129 B.C.A.C. 32; 210 W.A.C. 32; 1999 BCCA 470, refd to. [para. 205].

Cold Lake First Nations v. Alberta (Minister of Tourism, Parks and Recreation) (2013), 566 A.R. 259; 597 W.A.C. 259; 88 Alta. L.R.(5th) 179; 2013 ABCA 443, refd to. [para. 206].

American Cyanamid Co. v. Ethicon Ltd., [1975] A.C. 396 (H.L.), refd to. [para. 217].

Wahgoshig First Nation v. Ontario et al., [2011] O.T.C. Uned. 7708; 2011 ONSC 7708, dist. [para. 222].

Simon et al. v. New Brunswick et al. (2014), 426 N.B.R.(2d) 304; 1110 A.P.R. 304 (C.A.), refd to. [para. 233].

Musqueam Indian Band v. Canada (Minister of Public Works and Government Services) et al. (2008), 378 N.R. 335; 2008 FCA 214, refd to. [para. 234].

Counsel:

Harley I. Schachter and Kaitlyn E. Lewis, for the plaintiffs;

Gordon E. Hannon and Jim R. Roch, for the Government of Manitoba;

Douglas A. Bedford and Helga D. Van Iderstine, for Manitoba Hydro.

This application was heard on January 14, 2015, before Bryk, J., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following decision on March 2, 2015.