File No.

CI 14-01THE QUEENS BENCH

WINNIPEG CENTRE
BETWEEN:

SAPOTAWEYAK CREE NATION, and CHIEF NELSON GENAILLE on behalf of

SAPOTAWEYAK CREE NATION,
Plaintiffs,
-and-

THE GOVERNMENT OF MANITOBA and MANITOBA HYDRO,

Defendants.

STATEMENT OF CLAIM

DUBOFF EDWARDS HAIGHT & SCHACHTER

Law Corporation
Barristers and Solicitors
1900 - 155 Carlton Street
Winnipeg MB R3C 3H8

71

Harley Schachter
Telephone: 942-3361
Fax: 942-3362
File No. 260269-2903

-2File No. CI 14-01THE QUEENS BENCH

WINNIPEG CENTRE
BETWEEN:
SAPOTAWEYAK CREE NATION, and CHIEF NELSON GENAILLE on behalf of
SAPOTAWEYAK CREE NATION,
Plaintiffs,
-and-

THE GOVERNMENT OF MANITOBA and MANITOBA HYDRO,

Defendants.
STATEMENT OF CLAIM
TO THE DEFENDANT
A LEGAL PROCEEDING HAS BEEN COMMENCED AGAINST YOU by the
Plaintiffs. The claim made against you is set out in the following pages.
IF YOU WISH TO DEFEND THIS PROCEEDING, you or a Manitoba lawyer acting
for you must prepare a Statement of Defence in Form 18A prescribed by the Queen's Bench
Rules, serve it on the Plaintiffs' LAWYER OR, WHERE THE Plaintiff does not have a
lawyer, serve it on the Plaintiff, and file it in this court office, WITHIN 20 DAYS after this
Statement of Claim is served on you, if you are served in Manitoba.
If you are served in another province or territory of Canada or in the United States of
America, the period for serving and filing your Statement of Defence is 40 days. If you are
served outside Canada and the United States of America, the period is 60 days.
IF YOU FAIL TO DEFEND THIS PROCEEDING, JUDGMENT MAY BE GIVEN
AGAINST YOU IN YOUR ABSENCE AND WITHOUT FURTHER NOTICE TO YOU.
Date:

Issued by
Deputy Registrar
Address of Court Office:
Court of Queens Bench
408 York Avenue
Winnipeg, Manitoba R3C 0P9

-3-

TO:

THE GOVERNMENT OF MANITOBA

Minister of Water Conservation
104 Legislative Building
450 Broadway
Winnipeg, Manitoba R3C 0V8
ATTENTION: MINISTER GORD MACKINTOSH

AND TO:

MANITOBA HYDRO
360 Portage Avenue
Winnipeg, Manitoba R3C 0G8
ATTENTION: SCOTT THOMSON

-4STATEMENT OF CLAIM

PART I - THE PRAYER FOR RELIEF

1.

The Plaintiffs claim:

a.

A declaration that the Government of Manitoba (Manitoba or the Province)

and Manitoba Hydro each have a duty to consult, grounded in the Honour of the
Crown, in respect of contemplated conduct by each, that might affect the claimed
Aboriginal or Treaty rights of the Plaintiff the Sapotoweyak Cree Nation
(SCN).

b.

A declaration that neither of the Defendants have adequately consulted with SCN
in respect of the Bipole III transmission line project.

c.

An order requiring Manitoba to consult with SCN on the development of a Crown

consultation policy and on the development of funding guidelines to be used for
consultations, so as to enable meaningful participation by SCN in any future or
ongoing consultation process.

d.

An order that the Government of Manitoba must fulfil its consultative obligations,
(including any accommodation) with SCN, prior to permitting or otherwise
allowing Manitoba Hydro or any person to proceed to cut or clear any, or any
further portion of the N4 area of the proposed Bipole III hydro line.

e.

An order that Manitoba Hydro must fulfil its consultative obligations, (including
any accommodation) with SCN, prior to proceeding to cut or clear any, or any
further portion of the N4 area of the proposed Bipole III hydro line.

f.

A declaration that Manitoba and Manitoba Hydro are required to expend such
funds as are reasonably necessary in order to ensure that they can be properly
informed of the likely negative effects that the Bipole III project will have on the

-5claims, interests and ambitions of the SCN, so that all relevant information is
available to the Defendants before making any further decisions, or taking further
actions in cutting or clearing the N4 area.
g.

A declaration that each of the Defendants are required to provide such funding to
SCN as is reasonably necessary in order for SCN to meaningfully participate in
the consultation process.

h.

An order determining the amounts, or alternatively, an order fixing a process to

ascertain what those funding amounts should be (whether to be incurred on the
Defendants own behalf, or whether to be or paid to SCN) so as to ensure that the
consultation process is adequate, and to ensure that SCN is allowed to participate
meaningfully in those consultations.

i.

A declaration that Manitoba Hydro has breached its obligations under the August
14, 2013 license granted to it under the Environment Act.

j.

An order requiring the Minister to invoke section 66 of the August 14, 2013
license granted under the Environment Act and to revoke the licence, or
alternatively an order requiring the Minister to suspend the licence, until
Manitoba Hydro fulfils its obligations of consultation and accommodation and its
obligations under the license, or alternatively an order requiring the Minister to
advert as to whether or not the license should be revoked or suspended.

k.

An order requiring Manitoba Hydro to file a new proposal pursuant to Section 12

of the Environment Act, to incorporate the results of the information that will be
learned in the consultation process ordered to take place.

l.

An order that the Crown Land Permit No. GP67109, issued subsequent to the
August 14, 2013 licence, must be terminated and not extended, (in accordance
with section 7 of that Permit) because Manitoba Hydro has misrepresented

-6material facts relating to the extent of their engagements with SCN, and they have
failed to comply with the Environment Act license.
m.

Damages against each Defendant for past failures to adequately consult and
accommodate in respect of the proposed Bipole III project.

n.

General and special damages for all losses experienced by the Plaintiffs arising
out of or connected to the proposed Bipole III project for which the Defendants
are liable, in amounts to be determined and proven.

o.

An interlocutory, (and if necessary, an interim injunction prior to that) and a final

injunction preventing any cutting or clearing within the geographic area noted as
N4 (according to Manitoba Hydro Bipole III project plans) until adequate
consultation and accommodation with SCN has taken place.

p.

An order requiring the Defendants to adequately consult with the Plaintiffs in

respect of the construction and operation of Bipole III project as it may affect the
Plaintiffs claims, interests and ambitions, and to accommodate those claims,
interests and ambitions prior to making decisions or otherwise engaging in crown
conduct that has the potential to affect those claims, interests and ambitions.

q.

Pre and post Judgment interest, at such rate and for such time in accordance with
the pre and post Judgment interest provisions of the Court of Queens Bench Act.

r.

Costs on a solicitor and his own client basis; and

s.

Such further and other relief, as may be just.

PART II - THE PARTIES

2.

The Plaintiff Sapotoweyak Cree Nation (SCN) is a band as defined in the Indian Act,

R.S.C. 1985, c. 1-5. Its main reserve is located near Pelican Rapids, Manitoba.

-7-

3.

The Plaintiff Chief Nelson Genaille resides at the on Sapotoweyak Cree Nation reserve in

the Province of Manitoba. Chief Genaille is a treaty status Indian under the Indian Act and is a
registered band member of the SCN.
4.

This action is brought by Nelson Genaille in a representative capacity on behalf of SCN

in respect of the collective rights of the SCN, and not as a class action in respect of individual
rights of individual members.
5.

The Defendant, Manitoba, represents Her Majesty the Queen in Right of the Province of

Manitoba, as well as the officers and servants of the provincial Crown, in accordance with the
provisions of the Proceedings Against the Crown Act, R.S.M. 1987, Chapter P-140.
6.

The Defendant, Manitoba Hydro, is a Manitoba Crown Corporation established pursuant

to the Manitoba Hydro Act, C.C.S.M. c. H190, and pursuant to section 4(2) of that Act is an
agent of Manitoba. Its registered head office is at 360 Portage Avenue, Winnipeg, Manitoba
R3C 0G8.

Part III.

The proposed Bipole III transmission line project and the N4 section of the

corridor

7.

The proposed Bipole III transmission line project that Manitoba Hydro seeks to build,

includes the development of a new +/-500 kV HVdc transmission line, approximately 1,400 km
in length, centered on a 66 metre wide right-of-way, that will originate at the Keewatinoow
Converter Station in northern Manitoba and will follow a south-westerly route to southern
Manitoba and terminate at a new converter station, the Riel Converter Station, immediately east
of Winnipeg.

8.

Part of the geographic area to be cleared has been designated by Hydro as the N4 area.

It is a stretch of the proposed transmission line that runs from approximately The Pas in the
North to Swan River in the South. The Section N4 project footprint, or total area to be cleared, is

-8a 66-m-wide right-of-way along a length of approximately 200 kilometers (13,200 square
kilometers).
9.

On August 14, 2013, Manitoba Hydro was granted a licence by Manitoba under the

Environment Act (Manitoba). That licence purports to allow Manitoba Hydro to construct the
Bipole III Transmission Project, but on condition that they must adhere to the specific
specifications, limits, terms, and conditions set forth in that license.

10.

On or about September 18, 2014 Manitoba Hydros Environmental Protection Plan

(EPP) for the N4 area was approved by Manitoba. The EPP was developed and prepared
without input from SCN.
11.

Crown Land Permit No. GP67109 granted by Manitoba allows for the cutting and

clearing of the N4 lands. That permit expires on December 31, 2014, but can be renewed.

Part IV- The claims interests and ambitions at issue in this claim; the rights at issue.

IV.1. General Nature of the rights at issue.

12.

The claims, interests and ambitions at issue in this claim are those collective rights of

SCN to exercise and enjoy of all their Treaty 4 rights, and the constitutional right of consultation
and accommodation flowing from the Honour of the Crown.

13.

Treaty 4 was entered into in 1874. SCN adhered to, and became a signatory to and

beneficiary of Treaty 4 in 1876.

14.

SCN, in addition to being a signatory to Treaty No. 4, is also a signatory and beneficiary

of the 1997 Manitoba Framework Agreement (MFA) on Treaty Land Entitlement (TLE).

15.

The 1997 MFA was an agreement to which Manitoba is a party, by which the promise of

Treaty land entitlement, based on the per capita provisions of Treaty 4, (constitutionalized in
1930 and recognized and affirmed in 1982) was to be implemented. One of the contractual

-9rights acquired under that agreement was the right of SCN to Acquire Other land, which
could include Crown land in Manitoba. However the Principles of Acquisition do not
address the issue or circumstance of Manitoba wanting to allow Manitoba Hydro to use the land
within the N4 area for a transmission line, and the provisions of section 3.01(4) and (5) of the
1997 MFA therefore apply, and require the parties to consult one another on the matter, and if
no agreement is reached as to how such Crown lands are to be Acquired, then the matter is to be
resolved by reference to the dispute resolution process set out in the 1997 MFA. That has not
happened yet.

16.

The Treaty 4 rights at issue in this claim consist of the following categories of treaty

rights:
a.

Those treaty rights that were constitutionalized in 1930 as part of the Manitoba
Natural Resources Transfer Agreement, 1930, (NRTA), which agreement, and
obligations therein are part of the Constitution Act, 1930; and

b.

All treaty rights, including those rights constitutionalized as part of the

Constitution Act, 1930, as they were all constitutionally recognized and affirmed
pursuant to section 35 of the Constitution Act, 1982.

17.

The treaty rights constitutionalized in 1930 pursuant to the Constitution Act 1930 at issue

in this case are:

a.

The treaty right to have land set apart as Reserve in the amounts set forth in
Treaty 4, based on the per capita provisions of Treaty 4 (Section 11 of the NRTA).

b.

The treaty right of hunting, trapping and fishing game and fish for food at all
seasons of the year on all unoccupied Crown lands and on any other lands to
which the said Indians may have a right of access (Section 13 of the NRTA).

18.

The land intended to be used by Manitoba Hydro for its Bipole III transmission line

corridor has been and remains unoccupied Crown lands. If and when the land is cleared and
transmission towers are installed, the Plaintiffs claim that they will remain lands to which SCN
will have a right of access.

-1019.

However, after the clearing and cutting of those lands, and the erection of the

transmission lines, SCNs ability to beneficially use those lands will be negatively impacted, and
the opportunity to acquire those lands and lands in the vicinity for TLE purposes, will be
significantly impaired.

IV.2

More detail as to the way in which Bipole III will negatively affect SCNs rights

20.

The Bipole III Hydro transmission line corridor, as proposed, will run through Treaty 4

lands. Parts of the corridor are within the Sapotoweyak Cree Nation Traditional lands and within
their Community Interest Zone a term defined in the 1997 MFA.

21.

The cutting and clearing of the Bipole III transmission line corridor and its construction

and operation will have negative effects on the traditional harvesting rights of SCN (hunting
fishing trapping and gathering), and on SCNs cultural, economic, spiritual and social rights,
including the right of SCN to preserve and protect its sacred sites and burial grounds.

22.

The principle way that the animals, birds and fish will be affected is by disturbance and

destruction of part of their habitat and by the possibility of contamination from chemicals used in
the process of clearing and keeping the right of way cleared.
23.

The principle way that the plant life will be affected is by destruction and by disturbance

and by the possibility of contamination from chemicals used in the process of clearing and
keeping the right of way cleared.

24.

The principle way that SCNs cultural, economic, spiritual and social rights, including the

right of SCN to preserve and protect its sacred sites and burial grounds will be affected is by
disturbance of those sites.

25.

SCN, as an Entitlement First Nation (EFN) identified under Schedule B of the 1997

MFA, secured the right to Acquire a significant quantum of land. SCN is required to acquire
those lands within a defined period of time.

-11-

26.

For SCN, the period of Acquisition is currently scheduled to expire in September 2015.

It has been extended in the past, but there is no guarantee it will be extended in the future.

27.

SCN has the right, under the 1997 MFA, to acquire 36,045 acres of Other lands, which

could include Crown Lands of Manitoba.

28.

To date, SCN has acquired only two parcels of land comprising of 1.69 acres of Other

lands.

29.

SCN desires to acquire Crown land from Manitoba, and claims it has a right to do so.

The advantage of acquiring Crown Land, is that smaller privately owned parcels have become
the subject of predatory pricing, are too small in size to make a significant dent in the land
quantum to be acquired, and present challenges in satisfying Canada that the lands should be set
apart as reserve. Larger parcels of Crown Land present better opportunities.

30.

Both lands within the N4 area and the surrounding Crown Lands comprise lands that

SCN might like to acquire, but their availability and usefulness are put at risk if clearing and
cutting is permitted to occur and hydro transmission lines are erected and put into operation.

31.

The principle way that SCNs Treaty Land Entitlements are affected is that it results

removal of available land from the inventory of lands that would otherwise be available for
acquisition, and a fragmentation of lands near SCNs Reserve and its other treaty land selections
already made, thereby making it more difficult to acquire contiguous parcels of land at an
appropriate price, and also making it more difficult for SCN to find sufficient land to acquire to
satisfy its treaty land acquisition rights.

32.

Furthermore, Manitobas refusal to develop, (prior to granting rights to Manitoba Hydro

to use the N4 lands), a Crown policy on acquiring Crown Lands in consultation with the Plaintiff
Nelson Genaille, with a view to facilitating and enabling the timely achievement of the

-12implementation of the 1997 MFA, is having a negative effect on the ability of SCN to acquire
those Crown lands and Crown lands in the vicinity of the transmission line corridor.
V. The duties at issue in this claim that are owed to SCN.

33.

The duties at issue in this case involve Constitutional obligations, contractual obligations

(under the 1997 MFA), and the performance of statutory obligations (pursuant to the license and
permits granted to Manitoba Hydro and its agents under the Environment Act and other Acts).

34.

The constitutional obligations are owed by both Defendants as they are both the Crown.

Those obligations are :

a.

To diligently and purposively take steps to implement the promises of Treaty 4;

b.

To diligently and purposively take steps to fulfill the promises to Indians made
within the NRTA;

c.

To consult and accommodate in respect of contemplated Crown Conduct that

might affect SCNs claimed rights.

35.

Manitoba Hydro, as a Crown Corporation and agent of the Province, is a party who owes

a duty to consult and accommodate.

36.

Manitoba had an obligation (grounded in the Honour of the Crown) when it contemplated

Crown conduct, (the establishment of the Crown Consultation Policy and the Crown
Participation fund) to consult with SCN, regarding that Policy and the Crown Participation Fund.

37.

The contractual obligations are owed by Manitoba, who is a party to the 1997 MFA, and

include the contractual obligations to:

a.

Consult with, and attempt to agree with SCN ( by virtue of section 3.01(4) of the
1997 MFA), to develop a Crown land acquisition policy on terms and at a price
that facilitates the timely acquisition of crown lands;

b.

To, (by virtue of section 3.01 (5) of the 1997 MFA) work with SCN through the
dispute resolution process within the 1997 MFA in the event no agreement on
crown land acquisition policy is reached, so as to have that policy defined;

-13c.

Use its best efforts to review and revise any departmental policy, systems and
practices as required to facilitate and enable the timely achievement of the
implementation of the 1997 MFA (Section 31.04(g));

d.

38.

To act in good faith.

The phrase might like to acquire was used in para 30 above, was used because the

terms of acquisition, including price, is dependent on Manitoba Crown policy, a policy which
has not been developed, notwithstanding promises to develop such a policy in consultation with
the Plaintiff Nelson Genaille.

39.

Furthermore consistent with its constitutional obligation to act purposively and diligently

towards implementing treaty land entitlement promises, pursuant to section 31.04(g) of the 1997
MFA, Manitoba is obliged to revise any departmental policy, systems and practices as required
to facilitate and enable the timely achievement of the implementation of the 1997 MFA, which
is to ensure that the long outstanding per capita treaty land entitlements of Entitlement First
Nations, (of which SCN is one) are fulfilled.

40.

The statutory obligations are owed by Manitoba Hydro, and those obligations are

contained within the specifications, limits, terms, and conditions of the August 14, 2013 license,
and related permits, and are in addition to and not in substitution of the constitutional obligations
owed.

41.

Manitoba Hydro has a duty, to which the Honour of the Crown is pledged, to comply

with the specifications, limits, terms, and conditions of the August 14, 2013 license granted to it
pursuant to the Environment Act, and related permits. This duty is independent of the statutory
duty it has.

42.

Manitoba has a duty, grounded in the Honour of the Crown, to ensure that Manitoba

Hydro, and all of its agents, comply with the terms specifications, limits, terms, and conditions of
the August 14, 2013 license and related permits. This duty is independent of any statutory duty.

-1443.

Sections 66 and 68 of the license granted under the Environment Act record:
66:
If, in the opinion of the Minister, the Licencee has exceeded or is
exceeding or has or is failing to meet the specifications, limits, terms, or
conditions set out in this Licence, the Minister may, temporarily or permanently,
revoke this Licence.

68. If, in the opinion of the Minister, new evidence warrants a change in the
specifications, limits, terms or conditions of this Licence, the Minister may
require the filing of a new proposal pursuant to Section 12 of the Environment
Act.

44.

Manitoba has an obligation, grounded in the Honour of the Crown, owed to SCN, which

is independent of any statutory duty, to invoke the above sections upon either;
a.

It being discovered that Manitoba Hydro has exceeded or is exceeding or has or is

failing to meet the specifications, limits, terms, or conditions set out in the
Licence, in which case the Minister may temporarily or permanently, revoke this
Licence, and must do so where the breach results in the obligation of consultation
and accommodation to be unfulfilled; and

b.

New evidence comes to Manitobas attention that a change in the specifications,

limits, terms or conditions of the Licence are warranted in order to fulfil their
obligations of consultation and accommodation, in which case the Minister must
ensure that Manitoba Hydro takes appropriate steps to ensure those obligations
are fulfilled and may require the filing of a new proposal pursuant to Section 12
of the the Environment Act so as to cause those obligations to be fulfilled.

45.

The duty to consult and accommodate requires the Defendants to take reasonable steps,

including the expenditure of funds, to cause themselves to be properly and adequately informed,
as to how the proposed Bipole III project might affect SCNs rights at issue in this claim.

-1546.

In this case, both Defendants recognized that in order for there to be meaningful

consultations with SCN, there needed to be adequate funding made available to ascertain, with
specificity which lands, plants and animals relied upon by the Plaintiffs in exercising and
enjoying their Treaty rights might be affected by the construction and operation of the Bipole III
project.

47.

The specificity of knowledge required must be such that would allow the Defendants to

change their plans so that SCNs rights would not be affected, or to accommodate any
interference with those rights by developing appropriate mitigatory measures in consultation
with SCN.

48.

In 2011, prior to any consultations taking place, Rosann Wowchuk, who was at that time

also the Minister responsible for Manitoba Hydro, and also the Deputy Premier at the time,
represented to SCN that that there were two different sources of funding that would be accessed
to ensure that sufficient funds would be made available to ensure meaningful consultation. She
identified them as funds from the province of Manitoba directly, and funds from Manitoba
Hydro.

49.

In January 2011, Minister Rosann Wowchuk, speaking for the Province of Manitoba,

promised to and represented to SCN, who relied upon and agreed with the promise and
representation, that the consultation process would unfold as follows:
a. Manitoba Hydro would fund SCN to prepare a report of how SCN believed that the
proposed project would affect our aboriginal and treaty rights. (An Aboriginal
Traditional Knowledge Study (ATK)).

b. Manitoba Hydro would take that information, consider it, and do whatever was required
in order to cause an independent and thorough study to be conducted, so that an
Environmental Impact Statement (EIS) could be created that would document how

-16-

the proposed transmission line project might specifically affect SCNs rights and
concerns identified in the knowledge study.

c. Once the independent EIS was completed, it would be provided to SCN to review and
consider. At that time, additional funds would be made available to SCN from the
province, to hold meetings and retain independent experts and technical assistance to:
i. Review the EIS;
ii. Explain the EIS to SCN membership;
iii. Obtain the feedback from the membership to the EIS;
iv. Assist SCN in negotiations with the province aimed at accommodating SCNs
concerns with the proposed project.
d. Thereafter, the province and SCN would sit down to discuss how each side could
accommodate the others interests.

It was to be a table of mutual respect and

cooperation.

50.

The promises and representations made by Rosann Wowchuk in January 2011 were

unambiguous, or alternatively inferred from the circumstances, and were words or conduct
making a promise or providing an assurance regarding funding and the process that would be
used in the consultation process, which were intended to affect the legal relationship with SCN
and was intended to be acted on. Furthermore, in reliance of the representation, SCN acted on it,
and additionally did not seek the courts assistance at an earlier time. This amounts to public law
estoppel.

51.

Consistent with the consultation plan identified by Minister Wowchuck, and in late 2011

or early 2012 (before the commencement of any consultation process) Bob Brennan, (then the
president of Manitoba Hydro) and in consultations with SCN, was aware that the cost for SCN to
prepare a report of how SCN believed that proposed project would affect SCNs Aboriginal and
Treaty rights (the Aboriginal Traditional Knowledge Study), was going to be about $169,000.00.

-17-

52.

It was agreed between Bob Brennan and SCN that the ATK study and report would be

done in two traunches. The first would focus on the northern part of the proposed N4 corridor,
involving input from 50 band resource users, and a second part would focus on the southern part
of the proposed N4 corridor and involve 50 different band members.

53.

The representations made by Bob Brennan in 2011 were unambiguous, or alternatively

inferred from the circumstances and were words or conduct making a promise or providing an
assurance regarding funding and the process that would be used in the consultation process
which were intended to affect the legal relationship with SCN and was intended to be acted on.
Furthermore, in reliance on the representation, SCN acted on it, and additionally did not seek the
courts assistance at an earlier time. This amounts to public law estoppel.

54.

Subsequent to the issuance of the August 14, 2013 license, Manitoba represented to SCN,

who relied on that representation, that the consultative process was not at an end, but would
continue.

Such representations were unambiguous, or alternatively inferred from the

circumstances and were words or conduct making a promise or providing an assurance regarding
continuance of the process of consultations, and were intended to affect the legal relationship
with SCN and was intended to be acted on. Furthermore, in reliance on the representation, SCN
acted on it, and additionally did not seek the courts assistance at an earlier time. This amounts
to public law estoppel.

55.

Consistent with the representations regarding the continuation of the consultative process,

included within the August 14, 2013 license conditions, Manitoba Hydro was required to engage
in consultations with SCN, including a requirement to work with SCN to develop an
Environmental Protection Plan. The License also requires Manitoba Hydro to take certain steps
in mitigation of the possible negative effects that the Bipole III project might have in respect of
SCNs rights.

-18VI. The breach of the duties.

VI.1

Breaches by Manitoba Hydro.

56.

In breach of the constitutional obligations, Manitoba Hydro has not taken diligent and

purposive steps to implement the promises of Treaty 4.

57.

In breach of the constitutional obligations, Manitoba Hydro has not taken diligent and

purposive steps to fulfill the promises to Indians made within the NRTA.

58.

In breach of the obligations owed, Manitoba Hydro refused to engage in any Crown

consultative process, claiming it had no duty to do so.

59.

Alternatively, to the extent that any conversations, dialogue, or engagements had between

Manitoba Hydro and SCN could be characterized as consultations, same were inadequate.

60.

In further breach of the consultative obligations owed, Manitoba Hydro only funded the

first part of the Traditional Knowledge Study.

61.

Manitoba Hydro breached their consultative obligations by failing to expend the funds or

to take the reasonable steps required to inform itself as to the effects that the Bipole III project
would have on SCNs claims interests and ambitions, and in failing to provide sufficient capacity
funding to SCN to ensure that SCN could meaningfully participate to SCN to ensure that they
could meaningfully participate in the consultative process.

62.

In further breach of the obligations owed the information provided in the first part of the

ATK study was not used by Manitoba Hydro in developing or amending the EIS.

63.

In breach of the obligations owed, Manitoba Hydro failed to comply with the

specifications, limits, terms, and conditions of the license granted to it under the Environment

-19Act. The particulars of the failures to comply with the license terms as are known to the
Plaintiffs at the present time are as follows:
a.
It is claimed by the Defendants that Manitoba Hydro committed to implement
mitigatory measures to address SCNs concerns as part of the EIS and supporting
information as a condition of being granted the Environment Act Licence.
But the EIS and supporting information do not document any of SCNs concerns; hence
there are no mitigatory measures in place to address SCNs concerns.

b.
It was a condition of the Environment Act Licence that Manitoba Hydro would
submit completed Environmental Protection Plans (EPP) for the N4 area which plans
were to be developed in collaboration with SCN. The purpose of those plans was to
address mitigation measures and impacts to Aboriginal treaty rights and commitments
made by Hydro in the EIS.
However SCN was not included in the process of developing the EPP.

64.

In breach of the obligations owed, the conditions of Permit No. GP67109 were breached.

The Crown Land Permit requires Manitoba Hydro to comply with all specifications and terms of
the Environmental Act License. Hydro has not done so.

65.

In further breach of the obligations owed under the licence, Manitoba Hydro failed to

work with SCN to develop an Environmental Protection Plan and failed to take steps to develop
mitigatory measures in consultation with SCN that might mitigate the possible negative effects
that Bipole III might have in respect of SCNs rights.

VI.1

Breaches by the Government of Manitoba.

66.

In breach of the constitutional obligations, Manitoba has not taken diligent and purposive

steps to implement the promises of Treaty 4.

67.

In breach of the constitutional obligations, Manitoba has not taken diligent and purposive

steps to fulfill the promises to Indians made within the NRTA.

-2068.

In breach of the duty to consult, Manitoba refused to consult at all in regards to SCNs

Treaty Land Entitlement rights.

69.

In any event, and in breach of the obligations owed, the consultative process that

Manitoba did engage in prior to the granting of the license of August 14, 2013 was not adequate.
While Manitoba did engage in some consultations with SCN in respect of how their
contemplated Crown conduct might affect SCNs traditional harvesting treaty rights, such
consultations were improperly underfunded and insufficient in scope.

70.

In breach of the obligations owed, Manitoba refused to meaningfully engage in any

Crown consultative process following the granting of the license on August 14, 2013 claiming it
had no duty to do so, even though Manitoba represented to SCN that it was going to engage in
further consultations.

71.

Manitoba breached its consultative obligations by failing to expend the funds or to take

the reasonable steps required to inform itself as to the effects that the Bipole III project would
have on SCNs claims interests and ambitions, and in failing to provide sufficient capacity
funding to SCN to ensure that SCN could meaningfully participate in the consultative process.

72.

Manitoba breached its contractual obligations by failing to:

a.

Consult with, and attempt to agree with SCN (by virtue of section 3.01(4) of the
1997 MFA), to develop a crown land acquisition policy that facilitates the timely
acquisition of crown lands at an appropriate price1;

b.

Work with SCN through the dispute resolution process within the 1997 MFA in
the event no agreement on crown land acquisition policy is reached, so as to have
that policy defined;

c.

Use its best efforts to review and revise any departmental policy, systems and
practices as required to facilitate and enable the timely achievement of the
implementation of the 1997 MFA (Section 31.04(g));

The Plaintiffs say that a proper crown policy would allow SCN and other Entitlement First Nations to
acquire Crown lands for $1 per acre, but that is not something that this court is being asked to rule upon.

-21d.

73.

To act in good faith.

Manitoba breached its obligations to SCN when it contemplated Crown conduct, (the

establishment of the Crown Consultation Policy and the Crown participation fund) without any
consultation with the Plaintiffs. This is a breach of the Honour of the Crown.

74.

Manitoba breached its obligations to SCN when it refused to consult in respect of the

Bands Treaty Land Entitlement rights to acquire Crown land before any disposition or use of
those lands would be granted to Manitoba Hydro.

75.

The consultation process promised by Rosann Wowchuk in 2011 was not followed.

Instead:
a.

While Manitoba Hydro did provide some funds to SCN to commence the
traditional knowledge study of SCNs use of the lands and waters:

i. Manitoba Hydro and SCN understood that the funding initially provided
($89,000) was about of the cost required to actually complete the knowledge
study.

ii. When it came time to fund the balance of the study, Hydro refused and SCN
was not able to secure the funds to complete it from any other source.

iii. The results of the study, even though partial, were produced, but were based
on a preliminary routing of the transmission line, and not the actual final route
chosen by Manitoba Hydro. The utility of the report was therefore
compromised.

b.

Secondly, the EIS was created before SCN was funded to do the Aboriginal
Traditional Knowledge Study. Therefore there was no possibility of Manitoba
Hydro taking the information provided into account when it caused its agent to

-22prepare the EIS. Hydro did not cause any study to be conducted in respect of
SCNs rights.

The result was that the EIS did not identify how the proposed transmission line
project would affect SCNs rights, or what Manitoba Hydro proposed to do about
any interference with our rights, but spoke only in generalized terms.

c.

Once the EIS was completed, it was provided to SCN for consideration, but the
funding made available to do that, ($38,328.00) was deficient. A budget of
$169,752.00 had been proposed in November 2011, but the provinces agent
tasked with assisting SCN to access the consultation fund, directed SCN to put in
an application for the $38,328.00 that was eventually approved, even though that
level of funding was insufficient.

d.

SCN approached each of Manitoba, Manitoba Hydro, and the CEC for funding to
allow it to meaningfully participate in consultations, and each one in turn refused
to provide the funding required.

e.

SCN repeatedly advised Manitoba and Manitoba Hydro and the CEC that the lack
of funding was preventing it from engaging in any meaningful consultation.

f.

SCN sought to engage the province in developing a consultation protocol. A

proposal was put forward on April 29, 2014, which sought to engage the province
in discussions aimed at consultation and accommodation.

But the province

refused and refuses to engage in any such discussions, and refuses to fund any
such process, claiming that its consultative obligations were fulfilled prior to the
issuance of the license to Manitoba Hydro on August 14, 2013.

76.

The process of consultation agreed to between SCN and Rosann Wowchuk in 2011,

including the promise that that there would be sufficient funds made available to ensure
meaningful consultation, was breached. This amounts to public law estoppel.

-23-

77.

Manitoba breached their obligation by failing to make adequate funding available.

78.

Manitobas representations to SCN, subsequent to the issue of the licence that the

consultative process was not at an end, but would continue, was breached. This amounts to
public law estoppel.

79.

Manitoba breached its obligations, grounded in the Honour of the Crown, by failing to

invoke section 66 and 68 of the license when they discovered, or ought to have discovered that:

a.

Manitoba Hydro had exceeded and is exceeding and has and is failing to meet the
specifications, limits, terms, or conditions set out in the licence; and

b.

a change in the specifications, limits, terms or conditions of the licence are

warranted in order to fulfil their obligations of consultation and accommodation;

VII. The harms suffered

VII.1- Generally

80.

Portions of the lands designated for the Bipole III project within the N4 area have been

identified by SCN as land they may wish to acquire to fulfill their treaty land entitlements. SCN
is suffering harm by not being able to acquire their treaty Lands in a timely fashion as the Crown
was obliged to facilitate.

81.

The cutting and clearing of land within the N4 area will interfere with the plants, animals,

birds and fish, and will negatively affect SCNs Treaty rights (some of which were
constitutionalized in 1930, and other which were recognised and affirmed by the Constitution
Act, 1982, section 35).

-2482.

The cutting and clearing of land within the N4 area will interfere with SCNs sacred sites

and burial sites and will negatively affect SCNs Treaty rights (some of which were
constitutionalized in 1930, and other which were recognised and affirmed by the Constitution
Act, 1982, section 35).

83.

The balance of this part will identify some of the losses and irreparable harm that will

occur if clearing of the N4 area proceeds without further and adequately funded consultation and
accommodation first taking place.

84.

Unfortunately, because SCN has not been properly funded, it is not in a position to

demonstrate (yet) or particularize all of the ways in which their rights will be negatively affected
by the proposed Bipole III project.
VII.2 Losses in Respect of Lands in SCNs Traditional Territory
85.

The enjoyment by the First Nation and its members of their constitutionally protected

rights including their Treaty Rights will be interfered with and irreparably harmed and impaired
if cutting and clearing within the N4 area proceeds. The Plaintiffs will suffer damages in respect
of this interference or impairment in an amount to be proven at trial. The nature of these losses
includes both economic losses and social, cultural and spiritual losses to the First Nation as a
people, and include:

a.

Harm to the ecosystem, environment and birds, fish and wildlife in the Treaty 4
and SCN traditional territory, specifically:

i)

The moose population. This is a critical region for the moose population,
and there is a risk of diminishing or extinguishing a once thriving moose
population during the construction and operation of the Bipole III
transmission line. The EIS contained a section that purported to deal with
this issue by creating a moose range, but there is little information about
the size of the moose range, and an independent moose population survey

-25has not been conducted by the Defendants to ensure that they capture the
effect this project will have on the moose population;

ii)

All other animal populations face the risk of being negatively affected by
the project such as the woodland caribou and their calving sites and
migratory birds;

iii)

Environmentally sensitive groundwater sites are contained within the

Bipole III route. There is a risk of water contamination and flooding, that
could cause harm to the Plaintiffs;

iv)

b.

Harm to vegetation including traditional plants, herbs and medicines.

SCN is spiritually connected with the land in and around the proposed Bipole III
transmission line, and community members engage in a variety of traditional land
use activities that are important for perpetuating their cultural heritage. Loss of
access to traditional lands as a result of the Bipole III project would cause harm to
the cultural fabric of their community and infringe upon their aboriginal and
treaty rights;

c.

There are a number of culturally significant heritage sites that are on or in close
proximity to the Bipole III transmission line and impact zone, such as the Red
Deer river crossing and the Kettle Hills Region. Construction of the Bipole III
project in these regions specifically would cause deterioration of traditional
knowledge which would have the unique effect of the loss of traditional activity,
cultural value and social cohesion associated with activities in that region such as
berry picking. These practices are noted for their cultural social and economic
values;

d.

The following is a list of some of the treaty activities that occur within or near to
the proposed Bipole III corridor, that will be negatively affected:

-26i)

The use of lands within SCNs Traditional Territory for all purposes
including acquisition of land in accordance with their TLE rights;

ii)

Use of lands for habitation and community development and well-being;

iii)

hunting;

iv)

fishing;

v)

trapping;

vi)

gathering;

vii)

transportation on land and water;

viii) recreational use of lands and waters;

ix)

use of lands for burial sites;

x)

use of lands for sacred sites;

xi)

spiritual uses of lands and waters;

xii)

cultural uses of lands and waters; and

xiii) economic uses of lands and waters.

e.

SCN will suffer losses to their well being as a result of not being able to continue
enjoying their cultural and traditional practices as they did prior to the clearing
and cutting and use of the corridor for the Bipole III project.

86.

The Plaintiffs therefore claim the relief as set out in paragraph 1 of this Claim.

Dated: December 3, 2014

DUBOFF EDWARDS HAIGHT & SCHACHTER

Barristers and Solicitors
1900 - 155 Carlton Street
Winnipeg, Manitoba R3C 3H8
Harley I. Schachter
Telephone: 204.942.3361