Case information

Constitutional law — Administrative law — Aboriginal peoples — Aboriginal rights — Duty of Crown to consult and accommodate — Licence under The Environment Act, C.C.S.M. c. E125, for major hydro project impacting land used by applicant band issued following consultation process in which applicant did not participate — Applicant sought judicial review of decision to issue licence — Act providing for appeal to Lieutenant Governor in Council — Whether appeal to Lieutenant Governor in Council was adequate alternative remedy — Whether test for adequacy of alternate statutory remedy should be adjusted when rights protected by Constitution Act, 1982, s. 35, are at stake.

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.

Manitoba Hydro sought a Class 3 licence under s. 12 of The Environment Act, C.C.S.M. c. E125, authorizing it to construct a hydro transmission line through Treaty 1 land. The project impacts areas used by the Sagkeeng Anicinabe (“Sagkeeng”) and others, both traditionally and at the time of these proceedings; it does not touch on reserve lands. In the latter half of 2015, after the scale of the project and the potential impacts on the various communities had been assessed, Manitoba invited Sagkeeng to participate in community meetings or to provide input into the plans for the project. Correspondence and information was exchanged and some meetings were held, but Sagkeeng did not respond to the invitation. In October 2017, Manitoba advised Sagkeeng that it was beginning to prepare its consultation report and asked Sagkeeng to contribute any information it wished. In November 2017 and March 2018, Sagkeeng responded, stating that Manitoba had not been acting in good faith, and that the proposed community session was meaningless. It proposed an expansive plan of consultation, the preparation of several expert reports and further studies. Manitoba’s reply indicated that the consultation process had closed, but renewed the offer to conduct a community session. There was some further correspondence, but no further steps were taken between then and the National Energy Board hearing in June 2018. The National Energy Board approved the project in November 2018. On April 4, 2019, the Minister of Sustainable Development granted the requested licence.

Sagkeeng filed an application for judicial review, arguing that the Minister and the Government of Manitoba had failed to meet their obligation to consult with and to accommodate under s. 35 of the Constitution Act, 1982 before granting the licence. The application for judicial review was found to be premature on the basis that Sagkeeng had not pursued the appeal to the Lieutenant Governor in Council provided in s. 28 of the Act. Sagkeeng’s appeal was dismissed.