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‘That is not consultation’: Manitoba First Nation fights $453M Manitoba-Minnesota power line in court

A Manitoba Indigenous community is taking the province to court over a $453-million power transmission project it says it wasn’t properly consulted on before construction started last summer.

Lawyers Kate Kempton, second from left, and Corey Shefman, right, stand outside the Manitoba Law Courts Building in Winnipeg Wednesday alongside Chief Derrick Henderson, second from right, and dozens of students from Sagkeeng First Nation. (Bryce Hoye/CBC)

An eastern Manitoba First Nation is taking the provincial government and Manitoba Hydro to court, alleging they failed to consult the community over a $453-million transmission line that will send hydroelectricity south of the border. 

Sagkeeng First Nation filed for a judicial review Wednesday in Manitoba Court of Queen’s Bench, in response to the province’s approval of a licence to Manitoba Hydro to build the Manitoba-Minnesota Transmission Project.

The 500-kilovolt transmission line will stretch over 200 kilometres and boost Manitoba’s export capacity by nearly 1,000 megawatts to 3,185 megawatts.

The Manitoba government predicts the line will remove 1.5 megatonnes of carbon emissions by helping American customers cut down on the use of coal for power.

Construction on the line started in August and is expected to wrap up in June of next year.

Construction on the Manitoba-Minnesota transmission line began in August. It’s expected to be operational by June 2020. (Gary Solilak/CBC)

Sagkeeng Chief Derrick Henderson said the community’s ancestors signed treaties to share land, not give it away.

“We want to put the Manitoba government on notice that it’s impacting our territory, our people, our lives and our traditional territory,” Henderson said outside the Manitoba Law Courts Building Wednesday, flanked by about 45 students who travelled from the community to take in the hearing.

Jim Koch, a lawyer representing the province, said the province exchanged letters and met with Sagkeeng officials in recent years. The province intends to prove in court it met its duty to consult, he said.

He said duty to consult, as set out by the Supreme Court, is described as a “two-way street.”

“It does not constitute a veto of Crown decisions,” he said, adding the Crown environmental review assessed the impact to Sagkeeng as “low” and the duty to consult as “moderate.”

‘Checklist of consultation’

Lawyer Corey Shefman, who is acting for Sagkeeng along with Kate Kempton, characterized those consultations as a “box-checking exercise.”

“They come to a First Nation and they check off their checklist of consultation rather than engaging in a meaningful process of dialogue,” Shefman said before the hearing.

“Those meetings are just Manitoba showing up in the community to explain things to Sagkeeng, or to tell Sagkeeng what it should think … that is not consultation.”

Sagkeeng is part of Treaty 1 territory, which the line cuts through. Sagkeeng members exercise their constitutional treaty rights “all along the route of the line,” Shefman said via email.

Shefman suggested the process skipped steps and needs to undergo another environmental assessment process. The project should halt until conflicts raised by Sagkeeng are remedied, he argued.

The Sagkeeng First Nation is arguing for a judicial review of the province’s decision to give the green-light to Manitoba Hydro for a transmission line to Minnesota. (Colin Perkel/Canadian Press)

The judicial review motion comes just months after the federal government signed off on the project, following delays over concerns similar to Sagkeeng’s raised by other Indigenous communities.

The approval of the licence came tied with 64 conditions from Natural Resources Canada, along with 28 terms set out by the Canadian Energy Regulator (formerly the National Energy Board).

The transmission project has been a source of conflict for Premier Brian Pallister’s government, which has clashed with a number of First Nations and the Manitoba Metis Federation.

The province axed a $67-million agreement between the MMF and Hydro in exchange for support Hydro projects including the Manitoba-Minnesota line.

Pallister described the exchange as “persuasion money,” setting off months of feuding with Manitoba Metis Federation President David Chartrand, who also filed for a judicial review.

All but one member of Manitoba Hydro’s board then resigned.

In court, Koch said decisions involving the public interest are best dealt with in cabinet and not in the courts, and Sagkeeng’s concerns should be dealt with through the appeals process available to all affected communities through the environmental licensing agreement.

He said the project ought to be allowed to run its course, after which Sagkeeng would still have a variety of options at its disposal, including filing a civil suit. 

Five other communities and public interests impacted by the construction — including Roseau River, Swan Lake, Long Plain and Brokenhead First Nations, as well as the Manitoba Metis Federation — opted to use the appeal process through the project, said Koch.  

He warned that a ruling in favour of Sagkeeng’s motion could have undesirable ripple effects on those negotiations and the outcome of the project.

‘Clock is ticking’

Kempton cast doubt over whether the environmental licence appeal procedure would be unbiased and fair.

She suggested cabinet ministers aren’t constitutional experts and said this case warrants court oversight because it involves breaching constitutionally protected rights of Indigenous people.

Based on past cases where that appeal process has been used, Kempton said it could take cabinet 11-18½ months before a decision is rendered.

“Eleven months would take us to just before the date that Manitoba Hydro is on the record saying that it intends to have this transmission line completely built,” she said. “The clock is ticking as we speak.”

She said Sagkeeng wants three forms of accommodations assured. Those include compensating the First Nation for unavoidable impacts, Kempton said, and for Hydro to pledge to prevent impacts that are preventable, like moving transmission lines that could impact traditional lands 

The hearings are expected to wrap up Thursday. Court of Queen’s Bench Justice David Kroft, who is presiding over the case, said he expects he won’t reach a decision until next year.

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