The Manitoba Court of Queen's Bench dismissed an application by a First Nation for an interlocutory injunction restraining the Province of Manitoba and Manitoba Hydro from clearing and cutting certain forested areas in preparation for the construction of a transmission line. The Court held that the plaintiff had not raised a serious issue as to whether Manitoba had failed to adequately consult them, or whether Manitoba Hydro owed any duty to consult. The plaintiffs also failed to establish that irreparable harm would result from allowing the clearing activities, or that the balance of convenience favoured the granting of an injunction.

The Bipole III Transmission Line Project involves the construction of a 1,385 km transmission link between the Lower Nelson River and southern Manitoba. It is a new high voltage direct current transmission project intended to improve overall system reliability and dependability. The overall route of the Bipole III project was divided into four northern sections, two central sections, and two southern sections. The portion of the transmission line at issue was northern section four (N4) consisting of approximately 11.2 square kilometres of Crown land and approximately two square kilometres of privately owned land. As a condition of the licence granted to Manitoba Hydro in August 2013 pursuant to The Environment Act (the “License”), Manitoba Hydro was required to submit an Environmental Protection Plan (“EPP”) to the province for approval. As part of the EPP, Manitoba Hydro was required to address issues and concerns identified by Aboriginal groups relating to the environmental effects of the project. The License granted to Manitoba Hydro contained more than 600 conditions to address concerns about the potential effects of the project.

The Sapotaweyak Cree Nation (“SCN”) is a band under the Indian Act and has its main reserve near Pelican Rapids, Manitoba. None of the land in question was SCN reserve land, nor any lands selected by the SCN pursuant to the Treaty Land Entitlement Framework Agreement. The N4 corridor of Bipole III passed through lands claimed by the SCN as being part of its traditional territory. The size of the SCN's alleged traditional territory was 28,000 square kilometres.

In 2008, Manitoba Hydro began to study the environmental impacts of the project. Manitoba Hydro engaged with Aboriginal groups and funded workshops, open houses, meetings and Aboriginal Traditional Knowledge reports. Manitoba began its consultations in August 2010, and meetings with the SCN began in 2011.

The SCN commenced an action against both Manitoba and Manitoba Hydro in relation to the Bipole III project. The SCN claimed that both Manitoba and Manitoba Hydro had failed to adequately consult them, or accommodate their interests, in regards to the project. It sought an order requiring Manitoba to consult on the development of a Crown consultation policy and funding guidelines. It also sought an order requiring such funding as is reasonably necessary in order to “ meaningfully participate ” in the consultation process. The SCN also alleged that Manitoba Hydro failed to adhere to the License, and sought an order that the Crown Land Permit issued pursuant to the Licence be terminated. The SCN sought damages against both Manitoba and Manitoba Hydro for past failures to adequately consult and accommodate in respect of the project.

Injunction Application

In this application, the SCN sought an interlocutory injunction, or a shorter interim injunction, to prevent Manitoba and Manitoba Hydro from clearing and cutting areas within N4 until the Court was satisfied that adequate consultation and accommodation had occurred. All parties agreed that the SCN was required to meet the test as set out in RJR-MacDonald Inc. v. Canada (Attorney General) (1994): (1) a serious issue to be tried; (2) irreparable harm if the interlocutory injunction is not granted; and (3) the balance of convenience favoured the granting of the injunction.

No Serious Issue Raised

The Court held that there was no serious issue to be tried in regards to whether Manitoba Hydro was obligated to consult the SCN in regards to the project. The SCN had alleged that the Crown's duty to consult, grounded in the Honour of the Crown, attached to both Manitoba and Manitoba Hydro, and argued that Manitoba Hydro is the Crown. Manitoba Hydro acknowledged it was an agent of the Crown pursuant to s. 4(2) of the Manitoba Hydro Act , but there was nothing in statute or case law suggesting that, as agent of the Crown, it had a duty to consult with the SCN as “ a separate or distinct obligation from that of the Crown ”. Mr. Justice Bryk accepted Manitoba Hydro's arguments, and disagreed with the SCN that the Supreme Court of Canada decision in Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council , 2010 SCC 43 applied. In the Rio Tinto case, BC Hydro had been specifically charged with the responsibility and duty to consult, and such “ unique circumstances ” led to a finding that BC Hydro acted in place of the Crown. Bryk J. held:

The facts in that case are clearly distinguishable.  There, the Supreme Court of Canada held that the duty on Crown corporations to consult only arises when that Crown corporation is specifically charged with a duty to act in accordance with the Honour of the Crown.  They did not say that all Crown corporations under any circumstances are charged with the responsibility to consult.

There was no similar delegation of authority between Manitoba and Hydro. Moreover, in these circumstances, the law of agency does not establish that the obligations of the principal Manitoba automatically apply to its agent Hydro.

I have not been directed to any jurisprudence which would indicate the requirement for two separate simultaneous consultations by two separate entities. 

The Court further held that there was no basis for finding that Manitoba Hydro breached the terms of the August 2013 Licence. In any event, the SCN had no standing to enforce the conditions of the Licence.

The SCN alleged that there had been inadequate funding by Manitoba Hydro during the consultation process. Mr. Justice Bryk commented on this allegation, despite already finding that Manitoba Hydro did not have a duty to consult the SCN. He reviewed at length the measures taken by Manitoba Hydro to provide funding and involve the SCN in the process. There were a number of meetings and open houses. The sum of $210,000 was either paid to or made available to the SCN. Bryk J. held that the SCN had failed to persuade him that the funding made available was inadequate.

The Court also found that no serious issue had been raised in regards to whether Manitoba had adequately consulted with the SCN. Manitoba had acknowledged its duty to consult with the SCN before, during, and after the consultation process. Manitoba put into evidence a comprehensive record of consultation detailing virtually every contact or communication with the SCN. In contrast, the SCN put forward only Chief Nelson Genaille's recollections, which proved to less than totally accurate or in conflict with the documentary evidence.

The Court held that any potential infringement with the SCN's rights was “ slight ”. The total area of N4 is 13.2 square kilometres, or 0.0005% of the SCN's claimed traditional territory. The SCN had not selected the lands of N4 during the TLE process.

The SCN raised the issue of funding and being on a “ level-playing field ” with the Crown during the consultation process. Bryk J. noted that the SCN and Manitoba signed a funding agreement in January 2012 specifying the amount of funding. By virtue of the SCN's non-compliance with reporting requirements in the agreement, it had deprived itself of some of the funding.

The Court found no requirement on Manitoba to include the SCN in the participation of a consultation protocol or consultation funding arrangement. The SCN's insistence on this point may have undermined its opportunity to participate in the consultation process. Bryk J. commented on the reciprocal duty of First Nations in the consultation process:

There is a reciprocal duty that attaches to First Nations during the process of consultation where the Honour of the Crown gives rise to a duty to consult.  That reciprocal duty to “bring forward” requires First Nations and communities to constructively furnish relevant information and to do so in a clear and focussed way during the consultation process.  In this way, the government in question is assisted in being able to share information and, in turn, respond to its duty to reconcile and accommodate the interests and concerns raised. 

The Court held that it appeared that the SCN did not necessarily view it as a reciprocal obligation to exchange and share information. Bryk J. held that such exchange was the “ whole purpose ” of the consultation process.

No Irreparable Harm

The Court found that the SCN had failed to demonstrate irreparable harm if the injunction was not granted. The SCN did not advocate the termination of the project, so it must be assumed that they objected to the mitigation policies put in place. Bryk J. held:

... In this application, SCN has alluded to irreparable harm in general rather than specific terms. It is not enough for SCN to simply allege that harvesting rights and culturally significant sites or burial grounds stand to be negatively affected by the clearing and cutting. In order to establish irreparable harm, SCN is required to specifically identify what harvesting rights will be affected and how and what significant sites and burial grounds will be disturbed. In this case, both Manitoba and Hydro have furnished ample evidence as to the mitigative measures that have been and will continue to be put into place. …

The Court rejected the SCN's arguments, based upon Wahgoshig First Nation v. Ontario , 2011 ONSC 7708, that the loss of opportunity to engage in adequate consultation is itself sufficient to establish irreparable harm. The facts in Wahgoshig were significantly different. Bryk J. also referred to the decision in Musqueam Indian Band v. Canada, 2008 FCA 214 in which the Federal Court of Appeal rejected a similar argument since it would effectively provide a veto to Aboriginal groups.

The evidence of potential harm put forward by the SCN was speculative at best. The SCN had failed to demonstrate such potential harm could not be compensated with damages.

Balance of Convenience

The Court further held that the balance of convenience weighed in favour of refusing the injunction. The granting of an injunction would delay the completion of Bipole III project with significant monetary impact on Manitoba Hydro and the potential for the disruption of hydro-electric power in Manitoba. This factor outweighed the claims by the SCN that delays in the cutting and clearing of N4 were necessary to provide them with better opportunities to participate in the consultation process. The conditions imposed by the Licence will reasonably mitigate any damage that may arise. The balance of convenience lies “ heavily ” with Manitoba and Manitoba Hydro.


The SCN's application for an interlocutory injunction was therefore dismissed. The parties were invited to make submissions on costs.

Other Author

A.J. (Jack) Finn


Aboriginal Law