Case information

Constitutional law — Aboriginal peoples — Crown’s duty to consult — Administrative law — Injunctions — Province proposing new flood management project — First Nations contesting adequacy of consultation and challenging permit for land clearing and licence for upgrading road connected to project — What role does interlocutory relief play when consultation with Indigenous peoples regarding a proposed course of government conduct is absent or patently inadequate? — How should courts weigh Indigenous rights and the goal of reconciliation, in assessing the balance of convenience under the test for injunctive relief? — What is the practical effect of legislation that affirms and recognizes a government’s commitment to reconciliation and the principles set out in the United Nations Declaration on the Rights of Indigenous Peoples?

Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.

The government of Manitoba planned a new flood control management system to replace an existing emergency outlet channel. Approval of the new project is subject to environmental assessment under both provincial and federal assessment legislation. Various First Nations communities contested Manitoba’s decisions to authorize a permit for land clearing in anticipation of work on the project, and to authorize a licence for the upgrading of a winter road (associated with the current channel) to an all-season road. They expressed concern about the impact of activities such as land clearing and other work on wildlife migration, plant life, fish habitats, availability of land, traditional knowledge and cultural identity, and the exercise of Aboriginal and treaty rights. The First Nations brought an action with a series of claims, including a request for injunctive relief. Manitoba opposed the injunction and brought a motion to dismiss the claim.

The motion judge at the Manitoba Court of Queen’s Bench dismissed Manitoba’s motion to strike, and applied the three-part test for injunctions, concluding that the First Nations in this case met the test. The judge granted two injunctions, enjoining Manitoba from undertaking further work on upgrading the winter road (with an exception for flood protection or mitigation in the event of a high water event), and from undertaking further action on the project as a whole (except for testing or exploratory work as necessary), until the First Nations’ claim for judicial review is adjudicated or until federal environmental approval for the project is issued. The Manitoba Court of Appeal unanimously allowed the Province’s appeal and set aside both injunctions, finding that the motion judge erred in his application of the test for injunctive relief.