Case information

Crown law — Honour of the crown — Administrative law — Judicial review — Executive Council approving order in council authorizing issuance of directive ordering Crown corporation not to proceed with major agreed points memorandum with Indigenous group, at that time –Indigenous group bringing application for judicial review — Application dismissed — Appeal dismissed — How does the honour of the Crown apply to accommodation agreements reached with Indigenous peoples in the fulfilment of the Crown’s duty to consult? — Whether the honour of the Crown requires the Executive to consult with Indigenous peoples in the process of adopting subordinate legislation which may adversely affect potential or established Aboriginal rights or interests — How are courts to conduct a judicial review challenging the vires of subordinate legislation in light of Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65?

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In 2014, the applicant, Manitoba Metis Federation Inc. (“MMF”), the respondent, Manitoba Hydro-Electric Board (“Hydro”), and Her Majesty the Queen in Right of Manitoba, executed an agreement known as the “Turning the Page Agreement” (“TPA”). In 2017, consistent with the processes agreed to in the TPA, the MMF and Hydro finalized a term sheet called the “Major Agreed Points” (“MAP”) to address issues associated with certain transmission projects. Hydro’s Board authorized Hydro to negotiate a relationship agreement with the MMF, substantially in accordance with the terms set out in the MAP, but subject to certain provisos. In 2018, an order in council (“OIC”) was issued pursuant to s. 13(1) of The Crown Corporations Governance and Accountability Act, CCSM c. C336, authorizing the issuance of a directive, which ordered, amongst other things, that Hydro, a Crown corporation, not proceed with the MAP at that time. The MMF applied for judicial review, seeking an order of certiorari against the respondents, the Premier, the Minister of Crown Services, the Executive Council and the Government of Manitoba (collectively, “Manitoba”) and a declaration that Manitoba had not acted in accordance with the honour of the Crown in making the OIC, the directive and the decision that Hydro not proceed at that time. The application judge dismissed the application. On appeal, the Court of Appeal concluded that the application judge erred in deciding that the honour of the Crown had no application in this case. However, the Court of Appeal was satisfied that, in the circumstances, Manitoba acted reasonably as to its obligation to act honourably. It dismissed the appeal.