June 4, 2020 VIA ELECTRONIC FILING AND E-MAIL ([email protected])
Canadian Energy Regulator 517 Tenth Avenue SW Suite 210 Calgary, AB T2R 0A8
Attention: Louise George, Secretary to the Commission
Re: Manitoba Minnesota Transmission Project Certificate EC-059, Condition 3 Manitoba Metis Federation Response to CER Correspondence of May 21, 2020
We are legal counsel to the Manitoba Metis Federation Inc. (the “MMF”) in the above-referenced proceeding. We write in response to your letter of May 21, 2020,1 inviting the MMF to file any amendments or updates to its previously filed submissions regarding Manitoba Hydro’s (“Hydro”) failure to comply with conditions 3 and 15 (the “Conditions”) of Certificate of Public Convenience and Necessity EC-059 (the “Certificate”), in light of the Manitoba Court of Queen’s Bench decision in Manitoba Metis Federation v. Brian Pallister, 2020 MBQB 49 (the “Judicial Review Decision”).
The MMF maintains its previous submissions to the Commission, which it provided on July 23, August 16, and October 23, 2019.2 The MMF also relies on its Notice of Application (the “Application”), as filed, seeking specific relief from the Commission as a result of Hydro’s failure to comply with the Conditions.
The issues before the Commission are: (1) whether the promises made in the Major Agreed Points reached between the MMF and Hydro in July 2017 (the “Major Agreed Points”) specific to the MMTP are “commitments made to [the MMF] . . . otherwise on the record of the EH-001-2017,” and, if so, (2) whether Hydro has therefore breached the Conditions. As set out in the Application, the Commission’s determination of these issues engage the honour of the Crown as well as its role as the federal Crown actor responsible to ensure the accommodation
1 Letter from CER to Hydro and MMF (21 May 2020) [C06416-1]. 2 Letters from MMF to CER (July 23, 2019 [C00653-1], August 16, 2019 [C01061-1], and October 23, 2019 [C02373-1]).
2
flowing from Canada’s consultation duty owing to Indigenous communities on the MMTP is fulfilled.
The Commission’s role in ensuring Hydro’s compliance with the Certificate is distinct from the Judicial Review Decision as well as other related litigation initiated by the MMF with respect to the legal enforceability of the Major Agreed Points. These other proceedings before the courts are not relevant to the issues before the Commission for the following reasons.
1. The Judicial Review Decision is not relevant to the issue before the Commission
The Judicial Review Decision—which is currently under appeal to the Manitoba Court of Appeal3—is not relevant to the issues before the Commission.
The Judicial Review Decision dealt with whether it was unlawful4 for Manitoba’s Lieutenant Governor in Council to issue Order in Council 82/2018 on March 21, 2018 directing Hydro “not to proceed with the agreement [the MAP] with the [MMF] at this time.”5
The Judicial Review Decision did not purport to address whether the Major Agreed Points are “commitments made to Indigenous groups . . . on the record of the EH-001-2017,”6 as is currently before the Commission. In fact, in accordance with submissions by Hydro,7 the Judicial Review Decision expressly held that the issue of whether or not the Major Agreed Points is a legally binding agreement “is not a matter for determination on this judicial review.”8
As set out above, the Commission only need consider9 the honour of the Crown as it relates to interpreting, upholding, and enforcing the Conditions, as expressly amended by the federal Crown as a specific accommodation made in response to concerns raised by the MMF in order to
3 A copy of the MMF’s Notice of Appeal is enclosed with this letter. 4 Manitoba Metis Federation v. Brian Pallister, 2020 MBQB 49, at paras 6, 23 & 25. 5 Order in Council 82/2018 and Directive, “A Directive to Manitoba Hydro Electric Board Respecting Agreements with Indigenous Groups and Communities” (21 March 2018), online (PDF): https://oic.gov.mb.ca/OICDocs/2018/03/Crown%20Services.180321.Crown%20Corporations%2 0Governance%20and%20Accountability%20Act.822018.pdf. 6 Certificate EC-059 (18 June 2019), Condition 3 [C00016-3] [emphasis added]. 7 Manitoba Metis Federation v. Brian Pallister, 2020 MBQB 49, at para 11. 8 Manitoba Metis Federation v. Brian Pallister, 2020 MBQB 49, at para 12. 9 See Canadian Energy Regulator Act, S.C. 2019, c. 28, ss. 11 & 56(1), as well as Fort McKay First Nation v. Prosper Petroleum Ltd., 2020 ABCA 163.
3
fulfill its duty to consult and accommodate. The findings in the Judicial Review Decision regarding the honour of the Crown are not relevant to this question.10
2. The Civil Action is also not relevant to the issue before the Commission
Since it is likely that Hydro will raise in its submissions that the MMF has also filed a civil suit against it and the Government of Manitoba on March 3, 2020 (the “Civil Action”),11 the MMF will also address this litigation in the context of this proceeding.
Like the Judicial Review Decision, the Civil Action is also not relevant to the matter before the Commission. Among other things, the Civil Action seeks a declaration that the Major Agreed Points is a legally binding agreement, which is enforceable in accordance with its own terms and/or based on the honour of the Crown, and seeks related relief and damages from Hydro and Manitoba on this basis.
As the MMF has raised in its other submissions, it is not necessary for the Commission to determine that the Major Agreed Points is legally enforceable in order to find that it is a “commitment” within the ambit of the Conditions, as the “commitments” contemplated by the Conditions go beyond simply legally binding agreements.
As such, the Commission need not—and, in fact, must not—wait for the Court’s determination of the Civil Action many years from now before determining whether Hydro has breached the Conditions by failing to implement or cause to be implemented its commitments made to the MMF in the Major Agreed Points.
Sincerely,
Jason Madden
Encls. (1) Notice of Appeal, Manitoba Metis Federation v Brian Pallister and others (AI20-30-09449), filed on May 5, 2020 (2) Statement of Claim, Manitoba Metis Federation v Government of Manitoba and others (CI20-01-26496), issued on March 3, 2020 cc David Chartrand, President, Manitoba Metis Federation Cory Shangreaux, Legal Counsel, Manitoba Hydro ([email protected])
10 Manitoba Metis Federation v. Brian Pallister, 2020 MBQB 49, at paras 101 & 128. 11 A copy of the MMF’s Statement of Claim is enclosed for your reference.
Enclosure 1 File No.: A,W· 30· O'f 4.49 QB File No. Cl 18-01-14927
IN THE COURT OF APPEAL
BETWEEN: MANITOBA METIS FEDERATION INC., (Applicant) Appellant, - and - BRIAN PALLISTER, PREMIER OF MANITOBA, CLIFF CULLEN, MINISTER OF CROWN SERVICES, THE EXECUTIVE COUNCIL FOR THE GOVERNMENT OF MANITOBA, THE GOVERNMENT OF MANITOBA, and THE MANITOBA HYDRO-ELECTRIC BOARD, (Respondents) Respondents.
NOTICE OF APPEAL
ALDRIDGE + ROSLING LLP PAPE SALTER TEILLET LLP 11th Floor, 675 W Hastings Street 546 Euclid Avenue Vancouver, BC V6B 1N2 Toronto, Ontario, M6G 2T2
Jim Aldridge, Q.C. Jason Madden (LSM #2017034) Tel: 604-605-5555 Tel. : 416-916-3853 Fax: 604-684-6402 Fax: 416-916-3726 [email protected] [email protected]
Micah Clark Marc Gibson (LSM #2019029) Tel: 604-605-5555 Tel.: 416-855-2649 Fax: 604-684-6402 Fax: 416-916-3726 [email protected] [email protected]
Counsel for the Counsel for the Manitoba Metis Federation Inc. Manitoba Metis Federation Inc.
FILED COORT OF APPEAL MAY O5 2020 LAW COURTS WINNIPEG . ! Enclosure 1 File No.: QB File No. Cl 18-01-14927
IN THE COURT OF APPEAL
BETWEEN: MANITOBA METIS FEDERATION INC., (Applicant) Appellant,
- and - BRIAN PALLISTER, PREMIER OF MANITOBA, CLIFF CULLEN, MINISTER OF CROWN SERVICES, THE EXECUTIVE COUNCIL FOR THE GOVERNMENT OF MANITOBA, THE GOVERNMENT OF MANITOBA, and THE MANITOBA HYDRO-ELECTRIC BOARD, (Respondents) Respondents.
NOTICE OF APPEAL
TAKE NOTICE that a motion will be made on behalf of the (Applicant)
Appellant, the Manitoba Metis Federation Inc. (" MMF"), before the Court of
Appeal, as soon as the motion can be heard, by way of appeal from the
judgment of the Honourable Mr. Chief Justice Joyal of the Court of Queen's
Bench, Winnipeg Centre, pronounced on the 16th day of March, 2020, and
filed on the 7th day of April , 2020, whereby the learned Chief Justice did
order:
1. the Applicant's application for judicial review and all related relief
sought in the Amended Amended Notice of Application is dismissed;
and • I Enclosure 1 2
2. the Applicant pay costs to the Respondents in accordance with
Tariffs A and B of the Court of Queen's Bench Rules for Class 3
proceedings.
On the appeal, this Court will be asked to set aside the Chief Justice's
orders set out above, and in particular to:
a) consider the application of the constitutional principle of the
honour of the Crown to certain Crown actions as they relate to two
accommodations dealing with and addressing the Manitoba Metis
Community's collectively-held Aboriginal rights and interests
reached with the MMF, the Kwaysh-kin-na-mihk la paazh
Agreement (the "Turning the Page Agreement") and the Major
Agreed Points dated June 29, 2017 (the "Major Agreed Points"),
b) consider the authority of the Lieutenant Governor in Council and
the Minister under section 13 of The Crown Corporations
Governance and Accountability Act, CCSM c C336
(the "CCGAA"),
c) set aside the said judgment of the Chief Justice in respect of the
March 21 , 2018 approval given by way of Order-in-Council
#0082/2018 by the Executive Council of Manitoba ("Manitoba"), • j Enclosure 1 3
on behalf of the provincial Crown, to the Minister of Crown
Services (the "Minister"), to issue a directive to The Manitoba
Hydro-Electric Board ("Manitoba Hydro") under section 13 of the
CCGAA, entitled: "A Directive to Manitoba Hydro Electric Board
Respecting Agreements with Indigenous Groups and
Communities" (the "Directive"), which included the express
direction that Manitoba Hydro "not proceed with the agreement
[the Major Agreed Points] with the Manitoba Metis Federation at
this time" (the "Decision"},
d) set aside the preliminary determination of the Chief Justice to
exclude evidence that is necessary, relevant, and material in a
preliminary determination (pronounced on July 29, 2019) forming
part of the said judgment, to strike certain paragraphs and exhibits
from the affidavit of David Chartrand sworn on November 14,
2018, and
e) order that the MMF's application for judicial review in respect of
the Directive and the Decision be allowed with costs throughout,
on the following grounds: Enclosure 1 4
GENERAL/ STANDARD OF REVIEW
1. The Chief Justice:
a) did not choose the correct standards of review in respect of his
review of:
i) the Directive, and
ii) the Decision;
b) did not apply the standards of review properly in respect of his
review of:
i) the Directive, and
ii) the Decision;
c) erred in law;
d) misapplied the law to the facts;
e) made findings of fact and drew inferences of fact not supported
by, and inconsistent with , the evidence and the law; and
f) erred in his conduct of the proceedings, thereby causing
unfairness to the MMF, • I Enclosure 1 5
as set out below.
2. The Chief Justice erred in failing to find that the approval and
issuance of the Directive and the Decision lacked justification,
transparency, and intelligibility and were not justified in relation to the
relevant factual and legal constraints, including the honour of the
Crown and the duties owing to the MMF flowing therefrom,
the relevant statutory provisions, and the requirements of fa irness,
that bear on the Directive and the Decision.
HONOUR OF THE CROWN
3. The Chief Justice erred by failing to rule that:
a) the Respondents other than Manitoba Hydro (collectively, the
"Manitoba Respondents") took an incorrect view of the law
concerning the honour of the Crown in respect of the approval
and issuance of the Directive and the Decision, including failing
to consider whether the Directive and the Decision could
adversely affect Aboriginal rights and interests of the Manitoba
Metis Community or the ongoing accommodation measures
and negotiations in respect of those rights and interests, Enclosure 1 6
including the Crown's commitments in the Turning the Page
Agreement; or, alternatively
b) the Manitoba Respondents acted unreasonably in determining
that the approval and issuance of the Directive, and in particular
the Decision, did not give rise to obligations to the MMF arising
from the honour of the Crown, despite the Directive and the
Decision's adverse effect on Aboriginal rights and interests of
the Manitoba Metis Community or the ongoing accommodation
measures and negotiations in respect of those rights and
interests.
4. The Chief Justice erred in stating the law in respect of the honour of
the Crown relating to the Directive and the Decision, including by:
a) ruling that in order to rely on the honour of the Crown, the MMF
had the burden of establishing that an Aboriginal right or a
solemn constitutional obligation, for example, a Treaty, or
Indigenous rights, generally are engaged by the Turning the
Page Agreement, that they have been adversely affected by the
Directive, and that the MMF had failed to do so; Enclosure 1 7
b) ruling that the broader public interest is relevant to whether the
honour of the Crown is engaged and that the public interest and
the honour of the Crown are separate and incompatible; and
c) failing to correctly consider the scope of duties and obligations
flowing from the honour of the Crown that arose in the
circumstances, including the duty to consult and accommodate,
the duty to negotiate in good faith as well as related obligations,
including avoiding sharp dealings, acting fairly, providing
reasons, and disclosing relevant factors and motives.
5. The Chief Justice erred in applying the law in respect of the honour of
the Crown to the approval and issuance of the Directive and the
Decision, including by:
a) failing to rule that because the Major Agreed Points is a
negotiated agreement under the Turning the Page Agreement,
both of which set out accommodations, obligations and
commitments addressing, among other things, impacts of
Manitoba Hydro projects on the exercise of Aboriginal rights of
the Manitoba Metis Community, the honour of the Crown and Enclosure 1 8
the duties and obligations flowing therefrom applied to the
approval and issuance of the Directive and the Decision; b) failing to rule that the impact on the Turning the Page
Agreement and the Aboriginal rights and interests of the
Manitoba Metis Community should have been considered by
the Manitoba Respondents in accordance with the honour of
the Crown and the duties and obligations flowing therefrom
before approval and issuance of the Directive and the Decision ,
as a result of:
i) the historic relationship between the Manitoba Metis
Community, the Manitoba Respondents and Manitoba
Hydro as the context that led to the Turning the Page
Agreement and the Major Agreed Points,
ii) the relationship between the Turning the Page
Agreement, the Major Agreed Points, and the Aboriginal
rights and interests of the Manitoba Metis Community,
iii) the Turning the Page Agreement being an
accommodation agreement resulting from the Crown's
duties arising from the honour of the Crown in respect of Enclosure 1 9
the impacts of Manitoba Hydro projects on Aboriginal
rights and interests of the Manitoba Metis Community,
and which is accordingly aimed at reconciliation between
the Crown and the Manitoba Metis Community,
iv) the consideration exchanged in respect of the Turning the
Page Agreement, including the withdrawal of appeals, the
extinguishment of appeal and procedural rights of the
MMF in relation to certain Manitoba Hydro projects, and
the MMF's agreement to refrain from commencing
proceedings relating to the impact of certain Manitoba
Hydro projects on the Aboriginal rights and interests of
the Manitoba Metis Community; c) failing to find that the Crown did not comply with its obligations
and commitments under the dispute resolution provisions of the
Turning the Page Agreement; d) incorrectly interpreting and taking into account the termination
provisions of the Turning the Page Agreement; Enclosure 1 10 e) ruling that the non-derogation provision of the Turning the Page
Agreement precluded or otherwise affected or negated the
application of the honour of the Crown; f) failing to properly interpret the Directive, including the Decision,
and their relationship to the Turning the Page Agreement,
including by:
i) conflating the Directive and the Decision, thereby failing
to give due consideration to the Decision apart from the
Directive, and
ii) disregarding that the MMF's interests were expressly and
directly affected by the Decision; g) improperly evaluating and weighing the evidence of the
Manitoba Respondents' pre- and post-Decision conduct as
relevant to whether the respondents discharged any obligations
arising from the honour of the Crown in respect of the Directive,
and in particular the Decision; and
h) failing to rule that the Manitoba Respondents did not
reasonably fulfil their obligations to the MMF arising from the Enclosure 1 1 1
honour of the Crown in respect of the Directive, and in
particular the Decision.
THE DIRECTIVE, IN PARTICULAR THE DECISION, WAS APPROVED AND ISSUED WITHOUT STATUTORY AUTHORITY
6. The Chief Justice erred in ruling that the Manitoba Respondents'
conclusion that their approval and issuance of the Directive, and in
particular the Decision, was within their statutory authority, was either
reasonable or correct, including by failing to:
a) rule that the Manitoba Respondents' decision in respect of the
scope of Manitoba's authority to approve and issue directives
respecting "matters of policy" as contemplated by
section 13(1 )(a)(i) of the CCGAA was unreasonable and
incorrect,
b) rule that the Manitoba Respondents' decision in respect of the
scope of Manitoba Hydro's authority over its own business
operations under the CCGAA and The Manitoba Hydro Act,
CCSM c H 190, was unreasonable and incorrect, Enclosure 1 12
c) rule that the Manitoba Respondents' view that the Directive,
and in particular the Decision, was a "matter of policy" within
the meaning of the CCGAA was unreasonable and incorrect,
d) rule that the Directive, and in particular the Decision, was an
unauthorized arrogation of authority by the Minister, contrary to
the legislative scheme,
e) give due consideration to the Decision apart from the Directive,
and
f) rule that the approval and issuance of the Directive, in particular
the Decision, was an abuse of statutory discretion, including by
being issued for an improper purpose and without a proper
consideration of all relevant factors, including the honour of the
Crown.
7. Further, the Chief Justice erred by failing to rule that the Manitoba
Respondents' conclusion that the approval and issuance of the
Directive, and in particular the Decision, which single out Indigenous
persons or communities on the basis of race, was an unlawful and
unreasonable exercise of statutory authority, and that no reasonable
interpretation of the legislative framework could authorize the Enclosure 1 13
Manitoba Respondents to act in a manner that is discriminatory and
unlawful.
PROCEDURAL FAIRNESS
8. The Chief Justice erred by ruling that the Manitoba Respondents
correctly determined that no procedural fairness was owed to the
MMF in respect of the approval and issuance of the Directive, and in
particular the Decision, and that their approval and issuance in any
event satisfied any duty of procedural fairness owed to the MMF,
including by:
a) conflating the Directive and the Decision and failing to give due
consideration to the Decision, and by failing to give proper
consideration to the fact that the MMF and its interests were
expressly targeted and affected by the Decision,
b) ruling that the approval and issuance of the Directive, and in
particular the Decision, was solely a matter of policy and
legislative executive discretion,
c) ruling that the provisions of the Turning the Page Agreement
and its relationship to the Major Agreed Points did not give rise Enclosure 1 14
to a duty of fairness, including a reasonable expectation on the
part of the MMF as to how the Crown would proceed in respect
of the subject matter,
d) failing to rule that Manitoba breached the dispute resolution
provisions of the Turning the Page Agreement either before or
after the Decision,
e) ruling that the Manitoba Respondents' pre- and post-Decision
conduct provided even a low level of procedural fairness or any
fairness whatsoever to the MMF.
THE JUDICIAL REVIEW WAS NOT PROCEDURALLY FAIR
9. The Chief Justice erred in his conduct of the proceedings thereby
causing unfairness to the MMF, including by:
a) bifurcating the judicial review by hearing an interlocutory motion
to strike portions of evidence filed by the MMF;
b) predetermining substantive issues relating to the merits of the
judicial review on an interlocutory motion and in the absence of
submissions on the merits, including: Enclosure 1 15
i) interpreting the Major Agreed Points, the Turning the
Page Agreement, the Decision and the Directive,
ii) determining that the Decision and the Directive did not
engage Aboriginal rights or interests of the Manitoba
Metis Community or attract the honour of the Crown, and
iii) determining that the Turning the Page Agreement does
not engage Aboriginal rights of the Manitoba Metis
Community; c) striking portions of the MM F's proposed evidence that were
relevant and necessary for determining the issues in dispute; d) determining and relying on issues that were not properly before
the Court, were not the subject of full evidentiary or legal
submissions, were expressly excluded from the scope of the
hearing in advance, and are the subject of different proceedings
at the Court of Queen's Bench (Court File No. Cl-20-01-26496),
including his determinations in respect of the force and effect of
the Turning the Page Agreement and the Major Agreed Points. . . Enclosure 1 16
10. Such further and other grounds as counsel may advise and this
Honourable Court may allow.
Has a transcript of the evidence with respect to the judgment appealed from been ordered from transcription services?
Yes No Not Required_x_
DATED this 4th day of May, 2020. ALDRIDGE + ROS PAPE SALTER TEILLET LLP
ALDRIDGE+ ROSLING LLP PAPE SALTER TEILLET LLP 11th Floor, 675 West Hastings Street 546 Euclid Avenue Vancouver, BC V68 1N2 Toronto, ON M6G 2T2
Jim Aldridge, Q.C. Jason Madden (LSM #2017034) Tel: 604-605-5555 Tel.: 416-916-3853 Fax: 604-684-6402 Fax: 416-916-3726 [email protected] [email protected]
Micah Clark Marc Gibson (LSM #2019029) Tel: 604-605-5555 Tel. : 416-855-2649 Fax: 604-684-6402 Fax: 416-916-3726 [email protected] [email protected]
Counsel for the (applicant) appellant, Counsel for the (applicant) appellant, Manitoba Metis Federation Inc. Manitoba Metis Federation Inc. Enclosure 1 17
TO: Registrar of the Court of Appeal
AND TO: OSLER, HOSKIN & HARCOURT LLP Suite 2500, TransCanada Tower 450-1 st Street SW Calgary, AB T2P 5H1
Maureen Killoran Tel.: 403-260-7003 Fax: 403-260-7024 [email protected]
Sean Sutherland Tel.: 403-355-7458 Fax: 403-260-7024 [email protected]
Counsel for the Respondents, Brian Pallister, Premier of Manitoba, Cliff Cullen, Minister of Crown Services, The Executive Council for the Government of Manitoba, The Government of Manitoba
AND TO: THOMPSON DORFMAN SWEATMAN LLP 1700-242 Hargrave Street Winnipeg, MB R3C 0V1
Bob Adkins Tel.: 204-934-2483 Fax: 204-934-0543 [email protected]
Maria Grande Tel. : 204-934-2573 Fax: 204-934-0573 [email protected]
Sacha R. Paul Tel. : 204-934-2571 Fax: 204-934-0571 [email protected]
Counsel for the Respondent, Manitoba Hydro-Electric Board .. . . " Enclosure 1 18
IN THE COURT OF APPEAL Rule 112 Notice of Intent to Exercise Language Right The attached document begins a proceeding in the Court of Appeal. Your rights may be affected in the course of the proceeding. You have a right to use either the English or the French language even where the attached document is in the other language, but in order to exercise your right you are required within 21 days of service of this document on you to file with the registrar of the court a notice of your intention to do so and to leave with the registrar an address for service. If you file such a notice, you will be notified, in the language indicated in your notice, of further stages in the proceeding by registered mail addressed to your address for service. If you do not file a notice of your intention to exercise your right, the appeal will continue in the language of the attached document. The time limited for your filing of a notice may be enlarged or abridged at any time by order of a judge made on application in either English or French.
Registrar Manitoba Court of Appeal Room 100E Law Courts Building 408 York Avenue Winnipeg, Manitoba R3C 0P9
COUR D'APPEL Regle 112 Avis relatif au droit d'utilisation d'une langue Le document ci-joint constitue un document introductif d'instance devant la Cour d'appel. Les procedures dans !'instance pourront porter atteinte a vos droits. Vous avez le droit d'utiliser l'anglais ou le franc;ais aux differentes etapes de !'instance meme lorsque le document ci-joint est redige dans l'autre langue. Si vous desirez exercer votre droit d'utiliser l'une ou l'autre langue, vous devez, dans les 21 jours de la signification qui vous est faite de ce document, deposer aupres du registraire de la Cour d'appel un avis a cette fin et lui indiquer un domicile elu aux fins de signification. Si vous depos e z cet avis , vous s e rez avise (e) d e s procedures subse quentes par le ttre recommandee envoyee a votre domicile elu aux fins de signification, dans la langue que vous aurez indiquee dans l'avis. Si vous ne deposez pas un avis de votre intention d'exercer votre droit, toutes les procedures subsequentes en appel se derouleront dans la meme langue que celle du document ci-joint. Suite a une demande presentee en anglais ou en franc;ais, le juge peut, en tout temps, par ordonnance, proroger ou abreger le delai prescrit pour le depot de l'avis.
Registraire Cour d'appel du Manitoba Palais de justice 408, avenue York, piece 100E Winnipeg, Manitoba R3C OP9 Enclosure 2
Court File No.: Cl 0-0~c:,1 _ ;J.(cf-;<)b
THE QUEEN'S BENCH WINNIPEG CENTRE
B ET WEEN: MANITOBA METIS FEDERATION rNC. plaintiff, - and - THE GOVERNMENT OF MANITOBA, THE MANITOBA HYDRO-ELECTRIC BOARD, H ONOURABLE BRIAN PALLISTER, PREMIER OF MAN ITOBA, HONOURABLE CLIFF CULLEN, MINISTER OF JUSTICE AND A ITORNEY GENERAL, GRANT DOAK, DEPUTY MINISTER OF THE MINISTRY OF EDUCATION AND TRAINING, COLLEEN MA YER and HONOURABLE EILEEN CLAR.KE, MINISTER OF fNDIGENOUS AND NORTHERN RELATIONS defendants
STATEMENT OF CLAIM
LENCZNER SLAGHT ROYCE SMITH PAPE SALTER TEILLET LLP GRIFFIN LLP 546 Euclid Avenue 130 Adelaide St. West, Suite 2600 Toronto. Ontario, M6G 2T2 Toronto, Ontario, M5H 3P5 Jason T. Madden Paul-Erik Vccl Tel.: 416-916-385 3 Tel: 416-865-2842 Fax: 416-916-3726 Fax: 416-865- 2861 [email protected] pveel@ litigatc.com Marc E. Gibson Margaret Robbins Tel.: 416-855-2649 Te l. : 416-865-2893 Fax: 416-916-3726 Fax: 4 16-865-371 l mgi [email protected] mrobbins@l itigate.com Daniel Goudge Adam H. Kanji Tel.: 647-245 -2331 Tel.: 4 16-865-6763 Fax: 4 I 6-9 16-3726 Fax: 416-865-9010 [email protected] akanji@ litigate.com Counsel for the Plaintiff, Counsel fo r the Plaintiff, Manitoba Metis Federation Inc. Manitoba Metis Federation Inc. Enclosure 2
CourtFileNo.: C.' \X· 0 ) -c3-.f996
THE QUEEN'S BENCH WINNIPEG CENTRE
BE T WE E N:
MANITOBA METIS FEDERATION INC.
plaintiff, - and -
THE GOVERNMENT OF MANITOBA, THE MANITOBA HYDRO-ELECTRIC BOARD, HONOURABLE BRIAN PALLISTER, PREMIER OF MANITOBA, HONOURABLE CLIFF CULLEN, MINISTER OF JUSTICE AND ATTORNEY GENERAL, GRANT DOAK, DEPUTY MINISTER OF THE MINISTRY OF EDUCATION AND TRAINING, COLLEEN MA YER and HONOURABLE EILEEN CLARKE, MINISTER OF fNDIGENOUS AND NORTHERN RELATIONS defendants
ST A TEMENT OF CLAIM
TO THE DEFEN DANTS:
A LEGAL PROCEEDING HAS BEEN COMMENCED AGAfNST YOU by the plaintiff. The claim made against you is set out in the following pages.
IF YOU WISH TO DEFEND THIS PROCEEDING, you or a Manitoba lawyer acting for you must prepare a statement of defence in Fo rm 18A prescribed by the Queen's Bench Rules. serve it on the plaintiff's lawyer or where the plaintiff does not have a lawyer, serve it on the plaintiff, and file it in this court office, WITHIN TWENTY DAYS after this statement of claim is served on you, if you are served in Manitoba.
If you are served in another province or territory of Canada or in the United States of America, the period for serving and fil ing your statement of defence is forty days. If you are served outside Canada and the United States of America, the period is sixty days. Enclosure 2
-2-
IF YOU FAIL TO DEFEND THIS PROCEEDING, JUDGEMENT MAY BE GIVEN AGAINST YOU IN YOUR ABSENCE AND WITHOUT FURTH~ ~ O YOU. DEPUTY REGISTRAR axJRTOFQUEEN'SBENCH --.... fORMANIIOBA _ ~- - 3 2020 Issued by: Date ' , Deputy Registrar I00C-408 York Avenue Winnipeg, MB R3C 0P9
TO: The Government of Manitoba c/o Minister of Justice and Attorney General Room 104 Legislative Building 450 Broadway Avenue Winnipeg, MB R3C 0V8
AND TO: Manitoba Hydro-Electric Board 360 Portage Avenue Winnipeg, MB R3C 0G8
AND TO: Honourable Brian Pallister Premier of the Province of Manitoba Room 204 Legislative Building 450 Broadway Avenue Winnipeg, MB R3C 0V8
AND TO: Honourable Cliff Cullen Minister of Justice and Attorney General Room 104 Legislative Building 450 Broadway Avenue Winnipeg, MB R3C 0V8
AND TO: Grant D oak Deputy Minister of Education and Training Room 162 Legislative Building 450 Broadway Avenue Winnipeg, MB R3C 0V8
AND TO: Colleen Mayer 11 ?C St. Anne's Road Winnipeg, MB R2M 2Z I Enclosure 2
-3-
AND TO: Honourable Eileen Chuke Minister of Indigenous and Northern Relations Room 301 Legislative Building 450 Broadway Avenue Winnipeg, MB R3C 0V8 Enclosure 2 -4-
CLAIM
1. The Plaintiff, Manitoba Metis Federation Inc. (“MMF” or the “Plaintiff”), claims against each of the Defendants, on a joint and several basis, unless otherwise specified below:
(a) a Declaration that Her Majesty the Queen in Right of Manitoba as represented by
the Government of Manitoba (“Manitoba Government” or the “provincial
Crown”) breached the honour of the Crown based on its conduct, as set out
below;
(b) a Declaration that the document titled “June 29 FINAL DRAFT—For Discussion
Purposes Only—The Major Agreed Points” (“Major Agreed Points”), as
negotiated and agreed to between the MMF President and the Chief Executive
Officer of the Manitoba Hydro-Electric Board Inc. (“Manitoba Hydro”), and
approved by the Manitoba Hydro-Electric Board on or about July 5, 2017, is a
legally binding agreement, which is enforceable:
(i) in accordance with its own terms; and/or
(ii) based on the honour of the Crown;
(c) an Order for specific performance requiring Manitoba Hydro to comply with the
provisions of the Major Agreed Points, including all payment obligations payable
to MMF, as set out below;
(d) in the alternative to (b) and (c), a declaration that Manitoba Hydro has repudiated
the Major Agreed Points, and an Order for the payment of damages in the amount
Enclosure 2 -5-
of $95,000,000.00 by Manitoba Hydro to MMF for breach of the Major Agreed
Points;
(e) damages in the amount of $95,000,000.00 as against the Defendant, the Manitoba
Government, as well as the Defendants Honourable Brian Pallister, Premier of
Manitoba (“Pallister”), the Honourable Cliff Cullen, Minister of Justice and
Attorney General (“Cullen”), Grant Doak, Deputy Minister of the Ministry of
Education and Training (“Doak”), Colleen Mayer (“Mayer”), and the
Honourable Eileen Clarke, Minister of Indigenous and Northern Relations
(“Clarke”), as representatives of the Manitoba Government, in respect of the
conduct pleaded below in relation to the Major Agreed Points;
(f) a Declaration that neither the Manitoba Government nor Manitoba Hydro lawfully
terminated the Kwaysh-kin-na-mihk la paazh Agreement that was executed by
MMF, Manitoba Hydro, and the Manitoba Government on or about November 26,
2014 (the “Turning the Page Agreement” or “TPA”);
(g) an Order for specific performance requiring Manitoba Hydro and the Manitoba
Government to comply with the provisions of the TPA, including requiring that:
(i) Manitoba Hydro pay MMF the $1,000,000.00 annual payments prescribed
by section 2.1.1(b) of the TPA; and
(ii) Manitoba Hydro and the Manitoba Government comply with the dispute
resolution process prescribed by Article 5 of the TPA (the “Dispute
Resolution Process”);
Enclosure 2 -6-
(h) damages in the amount of $95,000,000.00 as against each of Manitoba Hydro, the
Manitoba Government, Pallister, Cullen, Doak, Mayer, and Clarke in respect of
the conduct pleaded below in relation to the TPA;
(i) aggravated, exemplary, and punitive damages in the amount of $2,500,000;
(j) reimbursement of MMF’s costs of these proceedings on a solicitor and own client
basis;
(k) pre-judgment and post-judgment interest; and
(l) such further and other relief as this Honourable Court deems just.
Overview
2. This is a claim advanced by the Manitoba Métis Community (also known as the
“Manitoba Métis”) against the provincial Crown and its delegates. Since 1967, MMF has been the democratic self-government representative of the Manitoba Métis. As further detailed below, the Manitoba Métis Community collectively holds various asserted, established, and recognized rights, interests, and claims protected by section 35 of the Constitution Act, 1982 (“Métis
Section 35 Rights”).
3. Section 35 of the Constitution Act, 1982 (“Section 35”) demands that aboriginal and treaty rights—both asserted and established—be determined, recognized, and respected as a part of the ongoing process of reconciliation leading to just and lasting settlements of these claims.
This constitutionally-mandated process applies equally to Métis Section 35 Rights.
Enclosure 2 -7-
4. The two agreements at issue in this claim—the TPA and the Major Agreed Points— represent Section 35’s promise of reconciliation to the Manitoba Métis finally becoming a reality. These types of agreements, known as impact and benefit agreements, accommodations, or by other names, are in place across Canada and advance reconciliation in practical and meaningful ways everyday (known as “Reconciliation Agreements”).
5. Fundamentally, this claim is about whether Indigenous communities—Métis, First
Nations, and Inuit alike, can rely on the bargains—in the form of Reconciliation Agreements— they make with the Crown and its delegates in the context of advancing modern day resource development and the process of reconciliation mandated by Section 35. In order for the process of reconciliation to advance, the Crown and its agents must uphold and implement these agreements honourably.
6. The 2014 TPA turned the page on the sorry and adversarial history that plagued the relationship between MMF, the Manitoba Government, and Manitoba Hydro. For generations, both the Manitoba Government and its Crown corporation actively denied the very existence of
Métis Section 35 Rights as well as MMF’s role in protecting the lands, waters, and environment the Manitoba Métis rely upon for their very existence, culture, and way of life. The TPA changed all that and set out a new, collaborative, forward-looking path. It also addressed two large scale hydro and transmission projects situated in the Manitoba Métis Community’s traditional territory.
7. The 2017 Major Agreed Points is the fruit from the reconciliation tree that was planted by
MMF, the provincial Crown, and Manitoba Hydro with the TPA. The Major Agreed Points addresses 5 additional transmission projects that crisscross as well as extensively change and
Enclosure 2 -8- affect the Manitoba Métis Community’s traditional territory. It also sets out a collaborative way forward to address Métis Section 35 Rights in relation to other transmission projects advanced by
Manitoba Hydro over the next 50 years in the Red River valley: the heart of the Manitoba Métis
Community’s Homeland.
8. The TPA and the Major Agreed Points represented real progress on reconciliation as the products of good faith negotiations, compromise, trust, and a belief in the honour of the Crown by the Manitoba Métis. Unfortunately, this progress came to a crashing halt through a series of unlawful actions by the Defendants beginning in 2017, which culminated in:
(a) the Manitoba Government, Pallister, Cullen, Doak, Mayer, and Clarke causing
Manitoba Hydro to purportedly repudiate and breach the Major Agreed Points on
March 21, 2018; and
(b) subsequently, the Manitoba Government unilaterally breaching and then
purporting to terminate the TPA.
9. Those actions were the result of unlawful conspiracy, misfeasance, and tortious conduct, and they breached the Manitoba Government and Manitoba Hydro’s contractual and constitutional obligations to MMF and the Manitoba Métis.
10. Since the purported termination of the TPA, the Defendants have continued to engage in unlawful conduct intended to weaken MMF’s ability to advocate for the Manitoba Métis
Community. In particular, Pallister has engaged in ad hominem attacks on MMF and its democratically-elected leadership.
Enclosure 2 -9-
11. Under these circumstances, MMF is now required—unfortunately, not for the first time—
to seek the Court’s assistance to advance the recognition and enforcement of its legal and
constitutional rights and ensure the legitimacy of reconciliation in Manitoba.
The Parties
12. MMF is the democratically elected representative government of the Manitoba Métis
Community. It is a non-share company incorporated pursuant to the laws of the Province of
Manitoba with its registered office being located in the City of Winnipeg. MMF’s longstanding
representative role on behalf of the Manitoba Métis Community has been recognized by the
Government of Canada (“Canada”), the Manitoba Government, and the courts. At all materials times, David Chartrand was the elected President and Chief Executive Officer of MMF (the
“MMF President”).
13. The Manitoba Government is named in these proceedings pursuant to section 10 of The
Proceedings Against the Crown Act, CCSM, c P140. The Manitoba Government holds legal
and/or beneficial title and/or other interests in the lands and waters relevant to the issues that
underlie this proceeding, as described below, subject to the constitutional rights and interests of
the Manitoba Métis Community. The Manitoba Government is obligated to uphold the honour of
the Crown in its dealings with MMF, particularly with respect to the TPA and the Major Agreed
Points.
14. Manitoba Hydro is a corporation established pursuant to the Manitoba Hydro Act,
CCSM, c H190. Manitoba Hydro’s duties and powers are prescribed by legislation, and its
affairs are administered by a board appointed by order of the Lieutenant Governor in Council.
Manitoba Hydro’s conduct is governed by a Code of Conduct, whereby its board, President, and
Enclosure 2 -10- staff are to “conduct Manitoba Hydro’s activities in a lawful, responsible and ethical manner, so that [its] reputation for honesty, integrity and the faithful performance of [Manitoba Hydro’s] obligations is maintained and enhanced.” Manitoba Hydro is also an agent of the Crown.
Manitoba Hydro currently operates, is building, or plans to operate various energy projects throughout the Province of Manitoba, including on and around lands and waters where Métis
Section 35 Rights are asserted, established, and recognized.
15. Pallister resides in the City of Winnipeg, in the Province of Manitoba. In April 2016,
Pallister was elected as a member of the Legislative Assembly of Manitoba. He was at all material times, and currently is, the Premier of the Manitoba Government. As an elected official,
Pallister is obligated to discharge his duties and powers in good faith and as prescribed by The
Executive Government Organization Act, C.C.S.M. c. E170 (the “Government Organization
Act”) and The Path to Reconciliation Act, CCSM c R90.5 (the “Reconciliation Act”).
16. Cullen resides in the City of Winnipeg, in the Province of Manitoba, and was the
Minister of Crown Services of the Manitoba Government from August 17, 2017, to August 1,
2018. On August 1, 2018, Cullen became the Minister of Justice and Attorney General for the
Manitoba Government.
17. Doak resides in the City of Winnipeg, in the Province of Manitoba, and is currently the
Deputy Minister of the Ministry of Education and Training. As of August 17, 2017, and at the material times described herein, Doak was the Deputy Minister of Crown Services for the
Manitoba Government.
Enclosure 2 -11-
18. Mayer resides in the City of Winnipeg, in the Province of Manitoba. Mayer was elected as a member of the Legislative Assembly of Manitoba in April of 2016 and was the Minister of
Crown Services for the Manitoba Government at the material times described below.
19. Clarke resides in the City of Winnipeg, in the Province of Manitoba. Clarke was elected as a member of the Legislative Assembly of Manitoba in April of 2016 and is and was the
Minister of Indigenous and Northern Relations at the material times described below.
20. Like Pallister, each of Cullen, Doak, Mayer, and Clarke were obligated to exercise their duties and powers in good faith and as prescribed by the Government Organization Act and the
Reconciliation Act.
21. Each Defendant is individually and collectively obligated to act in a manner that is consistent with the honour of the Crown.
The Manitoba Métis Community
22. The Métis were one of the Indigenous peoples living on the prairies prior to Canada’s westward expansion.
23. Prior to the Crown’s assertion of sovereignty or the imposition of effective Crown control, the Manitoba Métis Community emerged with its own origin story, collective identity, language, culture, laws, and legal orders—including land tenure systems, customs, practices, traditions, and a special relationship to its traditional territory.
24. The Manitoba Métis Community’s laws and legal orders, customs, practices, and traditions, as well as its collectively-held interests in lands—all of which predated the Crown’s
Enclosure 2 -12- assertion of sovereignty or effective control within the original postage stamp Province of
Manitoba and the current Manitoba boundaries—are protected as Métis Section 35 Rights.
25. The Manitoba Métis Community is a part of the larger Métis people, known as the Métis
Nation.
26. The Métis Nation is one of the “aboriginal peoples of Canada” as recognized in section 35(2) of the Constitution Act, 1982.
27. The Manitoba Métis became Canada’s negotiating partner in establishing the Province of
Manitoba flowing from:
(a) In 1869, upon Canada’s attempts to survey the lands in their homeland for the
purpose of settlement by outsiders, the Manitoba Métis resisted, seized Upper
Fort Garry, and formed a provisional government led by Louis Riel to negotiate
peaceful terms of union with Canada. These events ultimately led to the
negotiated creation of the new Province of Manitoba.
(b) In exchange for the Manitoba Métis laying down their arms, Canada made solemn
constitutional promises to them, including but not limited to the promise of
1,400,000 acres of land to be provided to the Manitoba Métis, as well as the
protection of language and religious rights. These promises are embedded within
the Manitoba Act, 1870—a constitutional document. This foundational
constitutional compact underpins Manitoba’s legitimacy and remains in place
today.
Enclosure 2 -13-
28. Canada did not fulfill the promise of section 31 to the Manitoba Métis. The foundational history of Manitoba as a Province is rooted on a broken land promise to the Manitoba Métis.
29. The honour of the Crown—as a constitutional principle—arises from the Crown’s assertion of sovereignty over an Aboriginal people, and de facto control of land and resources that were formerly in the control of that people. It applies to the relationship between the Crown and the Manitoba Métis Community. In all its dealings with the Manitoba Métis, from the assertion of sovereignty to the resolution of claims and the implementation of treaties, the Crown and its servants must act honourably.
30. In 2013, 143 years after acting as Canada’s partner in creating the Province of Manitoba, the Supreme Court of Canada granted a declaration to MMF “that the federal Crown failed to implement the land grant provision set out in s. 31 of the Manitoba Act, 1870 in accordance with the honour of the Crown (the “MMF Declaration”).”
31. The majority of the Manitoba Hydro developments addressed in the TPA and Major
Agreed Points have, are, or will reshape much of the land that the Manitoba Métis should own in the heart of their Homeland, but for Canada’s breach of the honour of the Crown.
The Relationship Between the Manitoba Métis Community and the Crown
32. Historically, Canada and the Manitoba Government failed to recognize the rights, interests, and claims of the Manitoba Métis Community. Distinct Métis communities, like the
Manitoba Métis, often existed in a legal lacuna.
33. Despite the express enumeration of the Métis people within Section 35 in 1982, the
Manitoba Métis Community continued to struggle for recognition of its Métis Section 35 Rights,
Enclosure 2 -14-
including land and harvesting-related rights that trigger the Crown’s duty to consult and
accommodate.
34. As a result, the Manitoba Métis Community turned to the courts to vindicate its Métis
Section 35 Rights, and to ensure both the federal and provincial Crown acknowledge and respect the constitutional duties and obligations that they owe to the Manitoba Métis. This has included the litigation related to the MMF Declaration against the federal Crown, as well as litigation defending MMF members against unconstitutional provincial harvesting legislation.
35. As a result of this litigation, as well as renewed relationships and formal negotiation processes, MMF’s relationship with the federal Crown began to improve beginning in 2013. This improved relationship led to:
(a) a Memorandum of Understanding on Advancing Reconciliation in May 2016;
(b) a Framework Agreement for Advancing Reconciliation in November 2016; and
(c) a Joint Action Plan on Advancing Reconciliation in September 2018.
36. Up until the actions of the Defendants, MMF’s relationship with the Manitoba
Government was improving as well. This included:
(a) adoption of a Manitoba Métis Policy in September 2010;
(b) a harvesting agreement with the Government of Manitoba, executed in
September 2012, which recognized aspects of the Manitoba Métis Community’s
collectively held Métis Section 35 Rights related to harvesting;
(c) the TPA, executed in November 2014; and
Enclosure 2 -15-
(d) the Manitoba Government’s formal acknowledgement and apology in 2015 for
the impact of hydro projects on transportation, hunting, trapping, fishing, water
quality and, in some cases, the flooding of Indigenous lands.
37. In April 2016, Pallister was elected Premier of Manitoba. Since Pallister’s election, the
actions and approach of the Manitoba Government have been inconsistent with the goal of
reconciliation. Following his election, Pallister and the Government of Manitoba have taken
steps with the intention to deliberately damage MMF. Such steps include, but are not limited to,
cutting funding provided to MMF for health initiatives and eliminating all self-government funding that had previously been provided to MMF.
38. The Manitoba Government’s inconsistent and sharp conduct post-April 2016 sets the context for this claim. Moreover, as set out below, the Manitoba Government’s conduct intentionally interfered with MMF’s improving relationship with Manitoba Hydro.
The Relationship between the Manitoba Métis Community and Manitoba Hydro
39. Manitoba Hydro is the Crown corporation responsible for numerous past, present, and future developments which are on and impact the traditional territory of the Manitoba Métis
Community. Manitoba Hydro’s activities have historically caused significant adverse effects to the lands and waters relied on by the Manitoba Métis Community and where the Manitoba Métis hold Métis Section 35 Rights.
40. Since the 1970s, Manitoba Hydro has attempted to address some of the harm caused to
Indigenous people by its projects. Historically, these discussions excluded the Manitoba Métis
Community, despite the impact of Manitoba Hydro’s projects on the Manitoba Métis. For
Enclosure 2 -16- example, MMF has been excluded from the Northern Flood Agreement processes in which other
Indigenous communities have engaged and from which they have benefited.
41. Further, while many First Nations in Manitoba and Northern Affairs Community
Councils were engaged by Manitoba Hydro and reached negotiated agreements to address past, present, and future impacts resulting from Manitoba Hydro projects, MMF was ignored or excluded from these processes, benefits, and agreements.
42. Prior to the TPA, Manitoba Hydro, like the Manitoba Government, treated the Manitoba
Métis Community as having no collectively held rights that required consultation, accommodation, or compensation apart from engagement on an ad hoc basis with individuals and entities not authorized to represent the Manitoba Métis Community (e.g., Northern Affairs
Community Councils).
43. This history of exclusion is why the TPA was so significant for MMF. Its purpose was to
“turn the page” on the Manitoba Métis Community’s troubled history with Manitoba Hydro.
The Six Manitoba Hydro Projects
44. Against this backdrop, Manitoba Hydro proposed 6 new hydro projects, all of which impacted the Manitoba Métis Community in various ways. These projects, described below, are at various stages of approval, construction, or operation. Some are addressed in the TPA, while others are addressed in the Major Agreed Points.
A. Bipole III Transmission Line Project
45. The “Bipole III Transmission Line Project” (“Bipole III”) is a transmission line project that includes, among other things, the construction of approximately 1,388 km of transmission
Enclosure 2 -17-
lines that connect the Keewatinoow Converter Station in northern Manitoba to the Riel
Converter Station near Winnipeg, Manitoba.
46. Between October 2012 and March 2013, the Manitoba Government held public hearings
by the Clean Environment Commission (the “CEC”). The CEC reviewed Manitoba Hydro’s
proposal for the Bipole III.
47. In August of 2013, the Manitoba Government’s Ministry of Conservation and Water
Stewardship (“MCWS”) issued a licence for Bipole III to Manitoba Hydro.
48. Construction of Bipole III began in 2013 and was completed in July 2018.
49. Bipole III is addressed in the TPA and the Major Agreed Points.
B. Lake Winnipeg East System Improvement Transmission Project
50. The Lake Winnipeg East System Improvement Transmission Project (the “LWESI”)
includes: (i) the construction of approximately 75 km of new 115-kV transmission line that
connects the Pine Falls Station to a new Manigotagan Station; (ii) the construction of a new
transmission station near Manigotagan; and (iii) equipment additions at the existing Pine Falls
Station, all in the Province of Manitoba. The LWESI includes new construction and system
upgrades in the region east of Lake Winnipeg, Manitoba.
51. In January of 2013, MCWS issued a licence to Manitoba Hydro for the LWESI.
52. Construction of LWESI began in 2016 and was completed in June 2018.
53. LWESI is addressed in the Major Agreed Points.
Enclosure 2 -18-
C. Keeyask Hydropower Project
54. The Keeyask Hydropower Project (“Keeyask”) is a proposed 695-megawatt
hydroelectric generating station and associated supporting infrastructure (including a spillway,
dams, dykes, a transmission tower, a reservoir, and roads) located near Gull Rapids on the
Nelson River, Manitoba.
55. In public hearings between September 2013 to January 2014, the CEC reviewed
Manitoba Hydro’s proposal for the Keeyask. In July of 2014, MCWS issued a licence to
Manitoba Hydro for Keeyask.
56. Construction of Keeyask began in July 2014 and is currently ongoing.
57. Keeyask is addressed in the TPA.
D. St. Vital Transmission Complex
58. The St. Vital Transmission Complex (the “St. Vital Complex”) includes the construction of two 230-kV transmission lines, both starting at St. Vital Station in southeast Winnipeg,
Manitoba, with one transmission line running 119 km south to Letellier Station (the “Letellier
Transmission Line”), and the other transmission line running 37 km west to the La Verendrye
Station (the “La Verendrye Transmission Line”), along with upgrades and modifications to each of these stations. On January 30, 2017, MCWS issued a licence to Manitoba Hydro for the
St. Vital Complex.
59. Construction on the Letellier Transmission Line, running from St. Vital Station to De
Salaberry East Station, began in or around January 2020. Construction on the remainder of the
Letellier Transmission Line is scheduled to begin in the second half of 2020. Manitoba Hydro
Enclosure 2 -19- has not yet publicly announced the anticipated construction start date for the La Verendrye
Transmission Line.
60. The St. Vital Complex is addressed in the Major Agreed Points.
E. Manitoba-Minnesota Transmission Line Project
61. The Manitoba-Minnesota Transmission Line Project (the “MMTP”) includes the construction of a new 213 km, 500-kV transmission line from the Dorsey Converter Station near
Rosser, Manitoba, to the Manitoba-United States border near Piney, along with upgrades to
3 electrical stations and modifications to 2 existing powerlines in southern Manitoba. In public hearings held in 2017, the CEC reviewed Manitoba Hydro’s proposal for the MMTP. The
MMTP was also subject to review by the federal National Energy Board in public hearings held in 2018.
62. Manitoba Hydro received both federal and provincial regulatory approval to move forward with the construction of the MMTP. In April 2019, MCWS issued a licence to Manitoba
Hydro for the MMTP. In June 2019, the Governor in Council approved the issuance of the federal Certificate of Public Convenience and Necessity for the MMTP.
63. Construction of MMTP began in September 2019 and is ongoing. Manitoba Hydro has publicly announced that it expects the construction of MMTP to be completed before its in-service deadline for connection to Minnesota Power’s Great Northern Transmission Line in spring of 2020.
64. The MMTP is addressed in the Major Agreed Points.
Enclosure 2 -20-
F. Birtle Transmission Line Project
65. The Birtle Transmission Line Project (the “Birtle Project”) includes the construction of a new 46.2 km, 230-kV transmission line from Birtle Station in Manitoba to the
Manitoba-Saskatchewan border, including station modifications and the replacement of the current transformers.
66. On January 14, 2020, MCWS issued a licence to Manitoba Hydro for the Birtle Project.
Manitoba Hydro has publicly announced that it expects construction on the Birtle Project to begin in the summer of 2020.
67. The Birtle Project is addressed in the Major Agreed Points.
68. The 6 aforementioned hydro projects, namely Bipole III, the LWESI, Keeyask, the St.
Vital Complex, the MMTP, and the Birtle Project are hereinafter collectively referred to as the
“Six Manitoba Hydro Projects”.
MMF’s Appeals in the Bipole III and Keeyask Projects (2013 to 2014)
69. As described above, for decades before the TPA was signed, the relationship between
MMF, the Manitoba Government, and Manitoba Hydro was adversarial and challenging, especially as it pertained to consultation with and accommodation of the Manitoba Métis
Community. The problems arose primarily due to the adverse impacts of Manitoba Hydro’s existing and proposed hydro and transmission developments on the Manitoba Métis
Community’s Métis Section 35 Rights, and by the accompanying denial by the Manitoba
Government and Manitoba Hydro of the very existence of Métis Section 35 Rights.
Enclosure 2 -21-
70. The repeated breaches of the Crown’s consultation duties owed by the Manitoba
Government and Manitoba Hydro to MMF persisted in respect of Bipole III and Keeyask. In its regulatory review of Bipole III, the CEC highlighted Manitoba Hydro’s deficiencies and failures insofar as meaningfully consulting with and engaging MMF. The Manitoba Government’s own consultation process with MMF was also deficient and did not fill the significant consultation and accommodation gaps left by Manitoba Hydro’s engagement approach and its environmental assessments for both Bipole III and Keeyask.
71. As a consequence of the failure to meaningfully consult with and engage MMF in both
Bipole III and Keeyask, MMF filed the following statutory appeals (collectively, the “Bipole and Keeyask Appeals”) in relation to the licences issued for those projects:
(a) on September 11, 2013, MMF filed an appeal of the licence issued for Bipole III;
(b) on February 12, 2014, MMF filed an appeal of the Environmental Protection Plan
that had been approved for segments “N1, N2 and N3” of Bipole III; and
(c) on August 30, 2014, MMF filed an appeal of the licence issued for Keeyask.
72. The Bipole and Keeyask Appeals were based upon, among other grounds:
(a) the Crown’s failure to assess or properly determine the scope of consultation
required with MMF;
(b) the Crown’s failure to meaningfully identify, assess, and accommodate the
impacts of Bipole III and Keeyask on the Manitoba Métis Community’s Métis
Section 35 Rights; and
Enclosure 2 -22-
(c) the failure of the Crown to carry out its duty to consult and accommodate the
Manitoba Métis Community.
73. In addition to the Bipole and Keeyask Appeals, MMF was prepared to assert its Métis
Section 35 Rights by way of an application for judicial review to the Manitoba courts in order to
quash the Manitoba Government’s approvals for Bipole III and Keeyask. Before commencing
such proceedings, however, representatives of MMF, the Manitoba Government and, later,
Manitoba Hydro, began to discuss a contractual mechanism to resolve existing and future
disputes in the spirit of reconciliation. These discussions led to the negotiation and ultimate
execution of the TPA in November 2014, as described below, the withdrawal of the Bipole and
Keeyask Appeals, and MMF agreeing not to proceed with applications for judicial review of the
Manitoba Government’s approvals related to these projects.
The Turning the Page Agreement (November 2014)
74. In light of the foregoing history and context, MMF, the Manitoba Government, and
Manitoba Hydro each executed the TPA on or about November 26, 2014.
75. The TPA provides, inter alia:
Whereas:
A. The Parties want to build a forward-looking, productive and non-adversarial working relationship.
. . .
C. Manitoba recognizes that the Crown has a duty to consult with Métis when any proposed Crown decision or action might adversely affect the exercise of the Aboriginal Rights of Métis and to reasonably accommodate concerns about the effects of the
Enclosure 2 -23-
decision or action raised in the consultation by attempting to substantially address those concerns.
D. Hydro is committed to avoiding, minimizing, and, where appropriate, mitigating and offsetting the effects of its Existing Developments and Operations and Future Developments on the Aboriginal Rights of the Métis.
E. MMF is committed to collectively representing Métis at the local, regional and provincial levels in relation to the Aboriginal Rights of the Métis and the Crown’s duty to consult as well as working to address any potential effects from Existing Developments and Operations and/or Future Developments on Métis rights, interests and way of life.
F. The Parties also desire to secure MMF’s support for Hydro’s Existing Developments and Operations as well as the Bipole III and the Keeyask Projects through this Agreement and the processes set out in this Agreement.
76. In order to “secure MMF’s support” as well as “build a forward-looking, productive and non-adversarial working relationship” between the parties, the TPA sets out various commitments, collaborative processes, and delegated authorities in relation to Bipole III, the projects and associated operations of Manitoba Hydro that physically existed at the Closing Date
(as defined herein), including Keeyask (collectively, the “Existing Developments and
Operations”), and projects of Manitoba Hydro that did not physically exist at the Closing Date
(collectively, the “Future Developments”).
77. Article 2 of the TPA requires Manitoba Hydro to pay MMF $2,000,000.00 within 10 days of MMF withdrawing the Bipole and Keeyask Appeals (the “Closing Date”).
78. Section 2.1.1(b) of the TPA provides that Manitoba Hydro will pay MMF:
one million dollars ($1,000,000.00) each year for nineteen (19) consecutive years commencing December 1, 2015.
Enclosure 2 -24-
79. In exchange for these payments and pursuant to Article 3.1.1 of the TPA, MMF covenanted and agreed that:
(a) it shall on or before the Closing Date withdraw its appeals of the decisions of Manitoba to licence to the Bipole III and the Keeyask Project;
(b) it will not subsequently challenge the Crown approval processes for Bipole III and the Keeyask Project, including the Crown consultation processes with MMF that informed the issuance of the licences as well as other decisions related to those projects that were undertaken or made by Manitoba or Canada prior to the Closing Date, and including decisions relating to allocations of Crown land by Manitoba for the projects, whether or not the relevant permits providing land allocation are issued before the Closing Date;
(c) during the Term of this Agreement, the MMF will not sue, initiate or proceed with any litigation, claim or legal action, or support any suit, litigation, claim or legal action by any other party, against Manitoba or Hydro with respect to any impacts of Existing Developments and Operations on the exercise of the Aboriginal Rights of the Métis, regardless of when those impacts may have arisen, provided that nothing in this covenant prevents the MMF from taking or supporting such actions with respect to an impact that was caused by a material change in operations during the Term of this Agreement;
(d) provided there is no material change in the operations of Existing Developments and Operations during the Term of this Agreement, it will not, subsequent to the expiry of the Term of this Agreement, initiate any such action for impacts on the exercise of the Aboriginal Rights of the Métis that were caused by Existing Developments and Operations, during the Term of this Agreement.
80. With respect to Bipole III, the TPA also sets out a process that expressly delegates authority to Manitoba Hydro (without the involvement or approval of the Manitoba Government) to reach “negotiated agreement(s)” with MMF as follows:
Enclosure 2 -25-
4.1.1 Unaddressed Impacts of Bipole III. Notwithstanding the support provided by MMF for Bipole III and the payment to be made under Article 2, if subsequently Hydro and MMF agree that any impact is identified that has not been addressed through the existing planning, design, construction, and mitigation of Bipole III, such impacts may be addressed through a variety of additional offsetting, mitigation, or, if necessary, compensation measures through negotiated agreement(s).
81. Additionally, the TPA provides for bilateral processes (again, between MMF and
Manitoba Hydro and without the involvement or approval of the Manitoba Government) for the
Future Developments:
4.3.2 Additional Agreements on Future Developments. If, based on the work undertaken pursuant to Article 4.3.1 [funding for engagement with MMF members about Future Developments], Hydro and the MMF agree that impacts are identified that have not been addressed through the existing planning, design, construction, and mitigation of a Future Development, such impacts may be addressed through a variety of additional offsetting, mitigation, or, if necessary, compensation measures through negotiated agreement(s).
82. In order to ensure the effective implementation of the commitments and processes set out in the TPA, a Tripartite Steering Committee (the “Steering Committee” or the “TSC”), consisting of appointed representatives from each of the parties, was established pursuant to the
TPA. The Steering Committee’s stated purpose is outlined in Article 5.1.1 of the TPA, namely to
“provide oversight for the implementation of this Agreement and to address issues constructively as they may arise.” Article 5.1.2 states that “[a]ll issues or matters in dispute among the Parties will be referred to the Steering Committee, and the Parties agree that the Steering Committee is to consider the issue before any Party takes any other action about that issue.”
Enclosure 2 -26-
83. Further, Article 5.1.3 of the TPA provides the Dispute Resolution Process, as follows:
5.1.3 Meeting. In the event of written notice being served on all Parties regarding a dispute relating to the interpretation or implementation of this Agreement, the Parties will:
(a) convene a meeting of the Steering Committee and make a good faith effort to amicably resolve such dispute;
(b) at the meeting of the Steering Committee referenced in subsection 5.1.3(a), if the Parties are unable to either resolve such dispute or agree to a process to resolve such dispute, the Steering Committee will properly define the issue to be resolved and refer the matter in dispute to the President of the MMF, the Minister responsible for Manitoba Hydro and the President and Chief Executive Officer of Hydro who will meet to endeavour to resolve, or establish a process to resolve, such dispute, which may include third party mediation or arbitration.
84. Given the significance of the interests and obligations addressed and embedded in the
TPA, the parties thereto expressly acknowledged in section 7.1.6 that the TPA “is legally binding
and enforceable against the Parties.”
85. Pursuant to Article 2 of the TPA, each of the parties has the right to terminate the TPA. It was an express or implied term of the TPA that any right of Manitoba Hydro or the Manitoba
Government to terminate the TPA is subject to a duty of good faith and the honour of the Crown.
86. MMF pleads and relies upon all the provisions of the TPA, as well as the entire factual matrix surrounding the TPA.
87. Following the execution of the TPA and in reliance upon the provisions set out therein,
MMF withdrew the Bipole and Keeyask Appeals. Once Manitoba Hydro had obtained substantially the benefit of the TPA, the honour of the Crown required that any action to terminate the TPA be taken consistent with the terms of the agreement, in good faith, and with
Enclosure 2 -27- appropriate regard for the interests of MMF, including the Métis Section 35 Rights that underlie the TPA.
Implementing the TPA (November 2014 to March 2018)
88. Between November 2014 and December 2016, MMF and Manitoba Hydro met and communicated numerous times with a view to implementing the TPA. In so doing, MMF and
Manitoba Hydro held meetings to identify and discuss the unaddressed impacts of Bipole III and to establish engagement processes in relation to Future Developments. Manitoba Hydro was represented and advised by legal counsel at and in respect of those meetings. Among other things, MMF and Manitoba Hydro formulated and considered detailed analysis, charts, and proposals based upon, among other things: (i) identified unaddressed impacts; (ii) previous
Manitoba Hydro agreements with First Nations; and (iii) the Bipole III “Community
Development Initiative” that had been made available to First Nations and other communities but not the Manitoba Métis.
89. In addition, MMF and Manitoba Hydro discussed how engagement and consultation with the Manitoba Métis Community on Future Developments could be improved, including how to avoid delays with respect to the development of mutually agreeable consultation work plans, and how to increase early input by MMF into transmission planning and routing to avoid unaddressed impacts on Métis Section 35 Rights and interests.
90. Over this same 2-year period, meetings of the Steering Committee were also held among the parties. At these meetings, the Manitoba Government’s representatives were made aware of the ongoing meetings and communications between MMF and Manitoba Hydro, as well as the
Enclosure 2 -28- ensuing bilateral negotiations between MMF and Manitoba Hydro, as contemplated by
Articles 4.1.1 and 4.3.2 of the TPA.
91. At various Steering Committee meetings, the Manitoba Government’s representatives inquired as to the status of bilateral negotiations between MMF and Manitoba Hydro as they pertained to Crown approvals of specific projects (including the LWESI and the St. Vital
Transmission Complex). However, the Manitoba Government’s representatives also conveyed to
MMF and Manitoba Hydro that the Manitoba Government representatives would not become involved in those ongoing meetings, communications, and ensuing bilateral negotiations.
92. At no time during this period did the Manitoba Government’s representatives express any objections to the bilateral negotiations between MMF and Manitoba Hydro, the TPA processes, or any concerns with MMF relying on those processes concurrently with regulatory and licencing processes.
MMF-Manitoba Hydro Negotiation Process and the MOU (December 2016 to June 2017)
93. On or about December 12, 2016, based upon the meetings, communications, and ensuing negotiations as mentioned above, and consistent with the provisions prescribed by sections 4.1.1 and 4.3.2 of the TPA for reaching “negotiated agreements,” the MMF President and Manitoba
Hydro’s President and CEO met and agreed to enter into time-limited, confidential, and without prejudice negotiations with a view to completing a binding agreement on various matters.
94. Ultimately, on March 1, 2017, a Memorandum of Understanding ( “MOU”) was executed between MMF and Manitoba Hydro to establish a confidential and without prejudice negotiation process for a 6 month period (the “Negotiation Process”), starting March 1, 2017, to
Enclosure 2 -29-
“address issues, including issues associated with the Manitoba-Minnesota Transmission Project,
St. Vital Transmission Complex, and Bipole III, through a comprehensive agreement or agreements.”
95. The MOU provided, among other things, that nothing in the MOU altered the
“commitment of legal obligations” set out in the TPA.
96. Consistent with the bilateral process prescribed by the TPA, the MOU expressly provided that “[a]ny agreement or agreements reached must ultimately be approved by the ‘Principals.’”
The term “Principals” in the MOU was defined to mean the “MMF President” and Manitoba
Hydro’s “CEO.”
97. Between March 2017 and June 2017, and as contemplated by the MOU, the MMF
President and the Manitoba Hydro President and CEO met several times with a view to discussing and negotiating the issues referenced in the MOU. Similarly, pursuant to the
Negotiation Process, representatives and legal counsel for MMF and Manitoba Hydro engaged in additional communications throughout.
98. At an MMF board of directors meeting and retreat held between June 8–11, 2017, the
MMF President debriefed the MMF Cabinet on the status of the Negotiation Process and received authorization to conclude an agreement with Manitoba Hydro.
99. At no time during this period did the Manitoba Government’s representatives express any objections to the bilateral negotiations between MMF and Manitoba Hydro, the TPA processes, or any concerns with MMF relying on those processes concurrently with regulatory and licencing processes.
Enclosure 2 -30-
Negotiation and Approval of the Major Agreed Points (June 2017 and July 2017)
100. On June 29, 2017, as a result of the Negotiation Process and as contemplated by
Articles 4.1.1 and 4.3.2 of the TPA, the MMF President and the Manitoba Hydro President and
CEO together prepared and agreed upon the Major Agreed Points.
101. Article 1 of the Major Agreed Points sets out the only condition for the Major Agreed
Points to become legally binding as against Manitoba Hydro. In particular, Article 1 of the Major
Agreed Points states that the “proposal” contained therein is “subject to Manitoba Hydro Electric
Board (MHEB) approval.” As noted above, the MMF President already had authority from the
MMF board of directors to conclude the Major Agreed Points on behalf of MMF.
102. On July 5, 2017, “Manitoba Hydro Electric Board (MHEB) approval” of the Major
Agreed Points was obtained. The Manitoba Hydro board of directors meeting minutes expressly confirmed that:
the President reviewed a Recommendation dated June 29, 2017, dealing with a new form of relationship with MMF. There was a lengthy discussion of the proposal. It was noted that in light of recent Supreme Court of Canada judgements, and negotiations between Canada and MMF, MMF is moving towards the status of a form of government. The Board then resolved as follows:
That the corporation be authorized to negotiate and sign a Relationship Agreement with MMF, substantially in accordance with the terms set out in the above Recommendation, including a lump sum payment of $37.5 million for a Fund to be used by MMF on behalf of the Métis People of Manitoba, and annual payments, adjusted by CPI, of $1.5 million for 20 years. Government is to be briefed, and the Relationship Agreement is to be fully fleshed out and reviewed by legal counsel.
Enclosure 2 -31-
103. The Major Agreed Points became a legally binding and enforceable agreement as between MMF and Manitoba Hydro by, at the very latest, July 5, 2017, when Manitoba Hydro approved the Major Agreed Points.
104. Following the approval of the Major Agreed Points by the Manitoba Hydro board of directors, Manitoba Hydro’s President and CEO conveyed to the MMF President that the Major
Agreed Points had been approved by the Manitoba Hydro board of directors, as contemplated in
Article 1 of the agreement. Members of the Manitoba Hydro board also conveyed this fact to the
MMF President and personally congratulated the MMF President on MMF being able to reach this historic agreement.
105. Shortly after July 5, 2017, the Chair of the board of directors of Manitoba Hydro advised the Manitoba Government of Manitoba Hydro’s approval of the Major Agreed Points. By
August 2017, at the latest, the Manitoba Government had received a copy of the Major Agreed
Points.
106. At no time during this period did the Manitoba Government’s representatives express any objections to the bilateral negotiations between MMF and Manitoba Hydro, the TPA processes, the Major Agreed Points, or any concerns with MMF relying on those processes concurrently with regulatory and licencing processes.
The Terms of the Major Agreed Points
107. The terms of the Major Agreed Points consist of all the terms set out therein, except insofar as any such terms would render the Major Agreed Points not legally binding. The terms of the Major Agreed Points also include any terms necessarily implied pursuant to the honour of
Enclosure 2 -32- the Crown, the TPA, or otherwise in the context of the relationship between MMF, as representative of the Manitoba Métis Community, and Manitoba Hydro, as an agent and delegate of the Crown.
108. The Major Agreed Points requires specific payments to be made to MMF by Manitoba
Hydro. In particular, Article 2 of the Major Agreed Points provides:
2. [Manitoba Hydro] will pay to MMF:
a. $1.5m/annum for 20 years starting as of the date of the TTP, such amount to be adjusted by CPI on an annual basis. The CPI adjustment will be cumulative.
b. A lump sum payment of $37,500,000.00 as a onetime payment to be held in a Legacy Fund for the benefit of the Métis.
c. The $37.5M Fund is to be held for the benefit of the Métis by the Métis Government of Manitoba and to be used at their sole discretion for short, medium and long term investments in capacity and other socio-economic areas designed to improve the overall quality of life in the Manitoba Métis Community.
109. Pursuant to Article 4 of the Major Agreed Points, MMF and Manitoba Hydro agreed that
“Future Transmission Projects” that were licensed beyond the initial 20 years and within
50 years of “the agreement” would be “fully and finally addressed through an annualized payment stream for 50 years based on 2% of the estimated capital cost of only the transmission line component.”
110. The Major Agreed Points also prescribes specific commitments and legal covenants on the part of MMF with respect to certain Manitoba Hydro projects. More specifically, the Major
Agreed Points addresses the following projects:
(a) “Existing Transmission Lines” (i.e., those already licenced);
Enclosure 2 -33-
(b) Bipole III, the MMTP, the St. Vital Complex, the LWESI and, the Birtle Project
(collectively referred to as the “Identified Projects”); and
(c) “Future Transmission Projects” that are in excess of 66 kW, less than 250 km in
length, and do not cross the Manitoba border.
111. While the Major Agreed Points does not prohibit MMF from participating in regulatory hearings related to the projects referenced therein, MMF’s overall “support” for those projects was expected to be consistent with many “Impacts and Benefits Agreements” that are negotiated with Indigenous communities across Canada.
112. In addition, in order to eliminate the previous prolonged discussions that often delayed
MMF and Manitoba Hydro reaching an engagement work plan in order to inform planning, developments, and routing, Article 5 of the Major Agreed Points provides a prescribed formula for engagement and studies for “Future Transmission Projects.”
113. MMF pleads and relies upon all the provisions of the Major Agreed Points, as well as the entire factual matrix surrounding the Major Agreed Points.
Implementation of the Major Agreed Points
114. Shortly after the approval of the Major Agreed Points by Manitoba Hydro’s Board, MMF and Manitoba Hydro began to rely upon and implement the Major Agreed Points as a
“negotiated agreement” between them, consistent with the provisions and processes agreed to in the TPA, including Articles 4.1.1 and 4.3.2 thereof. In so doing, the parties acknowledged that the Major Agreed Points was legally binding and enforceable in accordance with its terms.
Enclosure 2 -34-
115. In connection with implementing the Major Agreed Points, Manitoba Hydro also took steps to draft a more formal memorandum of agreement (the “Formal Memorandum of
Agreement”) within 30 days to incorporate the terms of the Major Agreed Points, as contemplated by Article 9 of the Major Agreed Points:
The Parties agree to expedite the drafting of a binding legal agreement once the terms of this “Term Sheet” have been agreed to by the MMF and MH and in any case, such binding legal agreement shall be completed by the legal teams within 30 days of an agreement to the “Term Sheet.”
116. In this regard, Manitoba Hydro conveyed to MMF that Manitoba Hydro’s legal counsel had been instructed to complete an initial draft of the Formal Memorandum of Agreement.
However, prior to circulating a draft thereof, Manitoba Hydro indicated that it wanted an opportunity to brief the Manitoba Government about these matters. Consequently, Manitoba
Hydro delayed providing a copy of the Formal Memorandum of Agreement to MMF.
117. In the ensuing months, MMF repeatedly followed up with Manitoba Hydro in terms of completing the drafting of the Formal Memorandum of Agreement.
118. In the Fall of 2017 and in response to one of MMF’s inquiries about the status of the drafting of the Formal Memorandum of Agreement, Manitoba Hydro informed MMF that it had not been able to secure a meeting to “brief” the Manitoba Government in respect of the Major
Agreed Points. However, between July 2017 and December 2017, Manitoba Hydro repeatedly assured MMF that:
(a) the Major Agreed Points had been approved by Manitoba Hydro’s board of
directors;
Enclosure 2 -35-
(b) MMF and Manitoba Hydro had a binding and enforceable agreement, as reflected
in the Major Agreed Points; and
(c) the briefing of the Manitoba Government was solely to advise the Manitoba
Government about the negotiated terms of the Major Agreed Points, and not to
seek its approval thereof.
119. From July of 2017 to the end of 2017, both MMF and Manitoba Hydro continued to rely on the Major Agreed Points as a binding and legal agreement, which was enforceable in accordance with its terms. As a result of MMF’s reliance, MMF did not exercise its procedural rights related to ongoing regulatory reviews of MMTP. In addition, the MMF President conveyed MMF’s support for some of the Identified Projects to the media.
120. During this period, the MMTP and the Birtle Project were subject to ongoing regulatory review and MMF, in reliance on the Major Agreed Points as a binding agreement, participated in these reviews consistent with the terms of the Major Agreed Points and the assurances received from Manitoba Hydro referred to in paragraph 118.
Engaging the Processes Under the TPA (January 2018 to March 21, 2018)
121. On January 4, 2018, MMF sent a letter to Manitoba Hydro and the Manitoba Government in which MMF requested a meeting of the Steering Committee in order to address the further implementation of the Major Agreed Points.
122. Consequently, meetings of the Steering Committee were held on February 5 and 15,
2018. At both meetings, the Manitoba Government’s representatives indicated that they “did not
Enclosure 2 -36- have instructions” with respect to the government’s position in relation to the Major Agreed
Points, but that they were attending for “information gathering” purposes.
123. On March 8, 2018, the Steering Committee held a third meeting. At this meeting, the
Manitoba Government’s representatives, for the first time, indicated that the Manitoba
Government was “not supportive” of the Major Agreed Points; however, when these Manitoba
Government representatives were questioned by other Steering Committee members on what that meant in relation to the Major Agreed Points (as a TPA-authorized “negotiated agreement” between MMF and Manitoba Hydro), they were unable to explain or further elaborate.
124. On March 13, 2018, MMF sent a letter to Manitoba Hydro and the Manitoba Government to formally trigger the Dispute Resolution Process prescribed by Article 5.1.3 of the TPA and requested a meeting of the parties. MMF framed its understanding of the issues and dispute as follows:
From MMF’s perspective, based on the position brought forth by Manitoba’s TSC representatives on March 8th, 2018, the “dispute” at issue under the TPA has significantly changed from the implementation issue originally identified in MMF’s January 4th, 2018 letter. Initially, MMF’s purpose to convene the TSC was to “ensure the prompt and diligent further implementation of the [Major Agreed Points]” under the TPA. Now, based on the position brought forth by Manitoba’s TSC representatives on March 8th, MMF believes that Manitoba has or is going to breach the TPA by undermining, ignoring or unilaterally altering the processes, commitments and delegated authorizations set out in the TPA. As set out above, the TPA, as a justiciable and legally binding agreement, led to the Major Agreed Points. MMF is also extremely concerned that Manitoba’s newly stated position constitutes provincial interference into Hydro’s statutory authority and obligation to oversee the management of the business and affairs of the Corporation and to ensure the Corporation fulfills its statutory objectives in the public interest.
Enclosure 2 -37-
125. The Manitoba Government subsequently failed to comply with the Dispute Resolution
Process prescribed by Article 5.1.3 of the TPA and took steps to sabotage Manitoba Hydro’s compliance with the Major Agreed Points, as detailed below.
The Decision, Order-in-Council, and Directive to Breach the TPA and the Major Agreed Points (March 21, 2018)
126. On March 21, 2018, 9 of the 10 members of the Manitoba Hydro board resigned by way of a letter to the Minister of Crown Services. These resignations were due to Pallister and the
Manitoba Government’s refusal to engage with Manitoba Hydro’s board of directors on various pressing issues, including the Major Agreed Points and reconciliation with Indigenous groups generally. The only board member who did not resign was a member of the Manitoba
Government.
127. Also on March 21, 2018, Pallister held a press conference to address the resignations of the Manitoba Hydro board members. During this press conference, Pallister publicly conveyed that a decision (the “Decision”) had been made by the Manitoba Government’s Cabinet (the
“Cabinet”) to direct Manitoba Hydro “to not proceed with” the Major Agreed Points “at this time,” and that a corresponding Order-in-Council # 0082/2018 (the “OIC”) and directive (the
“Directive”) had been issued to prevent Manitoba Hydro from complying with its obligations pursuant to the Major Agreed Points.
128. The Directive indicates that the Manitoba Government understood the Major Agreed
Points to be a binding legal document. Among other things, the Directive states:
Manitoba Hydro is directed to not proceed with the agreement with the Manitoba Metis Federation at this time. [emphasis added]
Enclosure 2 -38-
129. MMF pleads and relies upon the OIC and Directive, and the entire factual matrix surrounding the Decision and its implementation.
130. On March 21, 2018, and in subsequent media interviews, Pallister characterized the
Major Agreed Points as “persuasion money,” stated that it was “not an agreement,” and indicated that “we won’t be bound by it.” He also referred to MMF as a “special interest group.” His comments were intended to create undue pressure on MMF, and his ad hominem attacks against the MMF President included allegations that the MMF President was seeking to be bribed by the
Manitoba Government. These comments were designed and intended to place undue pressure on
MMF, harm MMF politically and operationally, and cause damage to the reputation of MMF and the MMF President.
131. Each of Pallister, Cullen, Doak, Mayer, and Clarke collaborated and conspired with each other and other members of the Cabinet in advance of March 21, 2018, to exert pressure on the
Cabinet to approve the Decision and proceed with the Directive out of malice towards MMF.
This conspiracy continued beyond March 21, 2018, as the Defendants purposely acted to weaken
MMF’s efforts to advocate for its constituents—leading up to and continuing beyond the termination of the TPA. The full particulars of said conspiracy are unknown to MMF but are known to the Defendants.
132. The purpose of the Decision, the OIC, and the Directive was to maliciously weaken
MMF, harm MMF citizens, and interfere with MMF’s future ability to exercise the Manitoba
Métis Community’s Métis Section 35 Rights, including the right to meaningful consultation and accommodation. These actions were based on hostility towards MMF, the Manitoba Metis
Enclosure 2 -39-
Community, and/or members of the community including the MMF President and were not undertaken for any lawful purpose.
133. These actions were undertaken despite each of Pallister, Cullen, Doak, Mayer, and Clarke being aware that the Major Agreed Points represented a binding legal obligation of Manitoba
Hydro pursuant to Article 4.3.2 of the TPA. Such actions were taken with the knowledge and intention that MMF would be injured.
134. Pursuant to correspondence from Cullen to the Manitoba Hydro board dated March 23,
2018, which was sent after collaboration, encouragement, and at the direction of each of
Pallister, Doak, Mayer, and Clarke, Manitoba Hydro was induced by each of the Manitoba
Government, Pallister, Cullen, Doak, Mayer, and Clarke to comply with the Decision, the OIC, and the Directive and to thereby breach its binding legal obligations to MMF pursuant to the
Major Agreed Points and the TPA.
135. The Directive itself is unlawful and is not authorized by section 13 of The Crown
Corporations and Governance Accountability Act, CCSM c C336. Under any reasonable
interpretation of section 13, the Cabinet did not have the power to approve the Directive and the
Minister did not have the power to issue it, as the Directive is fundamentally not about “matters
of policy” as contemplated by the provision.
Events After the Decision, the OIC, and the Directive
136. On March 23, 2018, Cullen sent a letter to MMF in response to MMF’s March 13, 2018,
letter (by which MMF requested a meeting pursuant to Article 5.1.3 of the TPA). In that
Enclosure 2 -40-
correspondence, Cullen indicated that he was willing to meet with MMF, but he made no
mention of the Decision, the OIC, or the Directive in his correspondence.
137. On March 24, 2018, Pallister published an opinion editorial in the Winnipeg Free Press,
stating that “[t]his situation [the Hydro Board resignation] was not caused by a lack of communication. It was caused by our government’s refusal to agree to a deal that would have been bad for Manitoba. A deal that tries to sell away the future rights of Métis people. . . . It’s not about truth or reconciliation. It’s about Hydro using millions of ratepayer dollars to buy rights they have no right to buy, from a person who has no right to sell them.”
138. On or about this same time, the Manitoba Progressive Conservative Party sent out a fundraising email to its members, including substantially similar content as the March 24, 2018, opinion editorial.
139. Following March 21, 2018, the Defendants continued to conspire and take actions to maliciously weaken MMF and interfere with its future ability to exercise the Manitoba Métis
Community’s Métis Section 35 Rights, including the right to meaningful consultation and accommodation.
140. In early April 2018, MMF and Cullen’s office confirmed that a meeting between MMF,
Manitoba Hydro, and the Manitoba Government was scheduled to take place on April 20, 2018.
141. On April 17, 2018, MMF sent a letter to Manitoba Hydro and the Manitoba Government,
which outlined MMF’s concerns that the April 20 meeting did not meet the requirements of
Article 5.1.3(b) of the TPA because the Steering Committee had not had an opportunity to
“properly define the dispute,” and advised that MMF still did not fully understand the Manitoba
Enclosure 2 -41-
Government’s actions. MMF conveyed that it looked forward to meeting on April 20 “in order to understand what [the Manitoba Government] has unilaterally done,” so that a subsequent meeting could be convened in compliance with Article 5.1.3(b) of the TPA.
142. On April 19, 2018, Doak sent a letter to MMF indicating that the April 20 meeting would need to be rescheduled in order to provide an opportunity for the Steering Committee to
“properly define the dispute.” This letter also provided MMF, for the first time, with a copy of the then “publicly available” Decision, OIC, and Directive; however, the letter did not provide written reasons or any rationale to explain the foundation for the Decision, the OIC, or the
Directive.
143. On April 20, 2018, the MMF President was informed by the media that either Pallister or his office had indicated to the media that MMF was unwilling to meet with the Manitoba
Government to discuss these matters. Rather than explaining that MMF’s concerns with respect to holding the meeting flowed from the failure to comply with the requirements of
Article 5.1.3(b) of the TPA, Pallister, with the encouragement and in collaboration with each of
Cullen, Doak, Mayer, and Clarke, created the false impression with the media that MMF was cancelling the April 20 meeting. In order to refute this misleading information, MMF attended at
Cullen’s office on April 20, 2018, even though Manitoba Hydro did not attend.
144. At this April 20, 2018 meeting, the MMF President agreed to Cullen’s request for a “two- week reset” in order to allow Cullen to look at the matters in question with “fresh eyes.” During this “reset” period, the Steering Committee also held a series of meetings and prepared a document, entitled “Turning the Page Agreement Definition of the Matter in Dispute,” which was finalized on May 8, 2018, and which was provided to each of the parties.
Enclosure 2 -42-
145. On May 15, 2018, MMF’s President, Cullen, and Manitoba Hydro’s President and CEO met. During this meeting, Cullen, having previously collaborated with each of Pallister, Doak,
Mayer, and Clarke, and having been encouraged or directed not to vacillate in any way from the
Decision, conveyed that the Manitoba Government had already decided that it would not change the Decision, OIC, or Directive in any way and was not open to reconsideration. As a result, the
May 15 meeting was illusory and contrary to the spirit, intent, and provisions of the Dispute
Resolution Process prescribed by the TPA. Cullen did not provide any reasons or rationale at this meeting for the Decision or his refusal to reconsider it.
146. In November 2018, Pallister continued his attack on MMF and the MMF President.
Among other things, Pallister characterized the MMF President as engaging in bribery rather than truly looking out for the best interests of the Manitoba Métis Community.
147. To date, MMF has still not been provided with reasons, written or otherwise, from the
Manitoba Government, Pallister, or Cullen providing any explanation or justification for the
Decision.
148. Further, neither the Manitoba Government nor Manitoba Hydro has taken any steps to pay or provide for payment of the consideration payable to MMF pursuant to the Major Agreed
Points. On the contrary, Manitoba Hydro has unequivocally, by words and conduct, advised
MMF that it will not comply with the obligations and will not make the payments prescribed by the Major Agreed Points, as directed by the Manitoba Government.
Enclosure 2 -43-
Application for Judicial Review and Subsequent Communications
149. On June 4, 2018, MMF filed an application in the Court of Queen’s Bench to seek judicial review of the Decision (the “JR Application”).
150. On June 21, 2018, Cullen sent correspondence to MMF, stating “[w]e sincerely regret that MMF has elected to commence a court proceeding rather than engage directly with the
Government of Manitoba and Manitoba Hydro.” Cullen also advised that the Manitoba
Government was not willing to address the JR Application “outside of the court process” but was willing to meet MMF “to discuss our current relationship.”
151. On July 3, 2018, MMF’s President responded to Cullen. In that correspondence, MMF’s
President responded that “MMF is always willing to meet with representatives from the
Manitoba Government.” MMF’s President asked Cullen to have his office contact MMF’s Chief of Staff to arrange a meeting.
152. On July 25, 2018, MMF’s President sent a letter to Cullen. In that correspondence,
MMF’s President advised that the Manitoba Government had not contacted MMF’s Chief of
Staff but that MMF was still willing to meet.
153. On August 16, 2018, Mayer and Clarke, with the prior encouragement and in collaboration with or at the direction of each of Pallister, Cullen, and Doak, sent correspondence to MMF. In that correspondence, Mayer and Clarke advised that the Manitoba Government would not address “issues currently before the Court” outside of the court process. They also stated that their offices would contact MMF at a later date to schedule a meeting.
Enclosure 2 -44-
154. On September 25, 2018, the MMF President sent correspondence to Pallister. In that correspondence, the MMF President attached Resolution No. 2 from the 2018 MMF Annual
General Assembly, which stated that the Annual General Assembly was “insulted” and
“ashamed” by Pallister’s conduct with respect to the Decision and demanded an apology from
Pallister.
155. Pallister, in collaboration with or with the encouragement of each of Cullen, Doak,
Mayer, and Clarke, has expressly refused to issue any apology to MMF or the Manitoba Métis
Community in respect of the Decision and subsequent conduct, including the Manitoba
Government’s direction and inducement to Manitoba Hydro to breach the Major Agreed Points.
156. Since the termination of the Major Agreed Points, the Defendants have continuously taken steps to undermine MMF. They have acted collaboratively, in bad faith, and in an effort to prevent MMF from advocating in support of the Manitoba Métis and their Métis Section 35
Rights, and against the injurious policies of the Manitoba Government.
Purported Termination of the TPA
157. Both the Manitoba Government and Manitoba Hydro acted in bad faith, in breach of the
Honour of the Crown, and in breach of their respective obligations pursuant to the TPA in respect of the foregoing acts and omissions. That unlawful conduct was then continued, exacerbated, and compounded as the Manitoba Government subsequently purported to unlawfully terminate the TPA rather than comply with its terms.
158. On October 30, 2018, Doak, in collaboration with, and at the encouragement or direction of each of Pallister, Cullen, Mayer, and Clarke, and in collaboration with, and at the
Enclosure 2 -45- encouragement or direction of Manitoba Hydro, sent a termination notice (the “Purported
Termination Notice”) by correspondence to MMF. In that correspondence, Doak provided notice purporting to terminate the TPA effective November 29, 2018 (the “Purported
Termination Date”), pursuant to Article 2.3.2 of the TPA.
159. The Purported Termination Date was calculated by each of the Defendants to be effective just before December 1, 2018, which was the date when the next annual payment of
$1,000,000.00 from Manitoba Hydro to MMF was due pursuant to section 2.1.1 (b) of the TPA.
The only explanation provided by Doak on behalf of the Manitoba Government in the Purported
Termination Notice to attempt to justify the termination of the TPA was a specious suggestion that the TPA had “failed” to “advance reconciliation” with the Manitoba Métis Community.
There was in fact no honourable or good faith basis, or any reasonable basis at all, to terminate the TPA.
160. While the Purported Termination Notice also stated that the Manitoba Government was
“working towards finalizing its renewed Duty to Consult Framework,” that “renewed Duty to
Consult Framework” is still not in place.
161. On November 5, 2018, MMF responded to the Purported Termination Notice by way of correspondence sent from MMF to the Manitoba Government and Manitoba Hydro. In such correspondence, and in compliance with Article 5 of the TPA, MMF triggered the Dispute
Resolution Process.
162. On November 23, 2018, as a consequence of not receiving a response to MMF’s correspondence dated November 5, 2018, MMF wrote a follow up letter to the Manitoba
Government and Manitoba Hydro.
Enclosure 2 -46-
163. On November 27, 2018, Doak responded to MMF’s correspondence of November 5
and 23, 2018. In that response, Doak offered to meet with MMF in December 2018 (following
the Purported Termination Date of November 29, 2018).
164. In collaboration with, and the encouragement of or at the direction of Pallister, Cullen,
Doak, Mayer, Clarke, and the Manitoba Government, Manitoba Hydro refused to pay the
$1,000,000.00 annual payment due to MMF on December 1, 2018, as prescribed by
Article 2.1.1(b) of the TPA, or any other amounts payable thereunder after the Purported
Termination Date.
Breach of Contract by Manitoba Hydro and the Manitoba Government
A. The Major Agreed Points
165. The Major Agreed Points is a binding agreement between Manitoba Hydro and MMF
that is enforceable at law and equity. The Major Agreed Points became legally binding or
enforceable as between MMF and Manitoba Hydro on the date the document was prepared or, in
the alternative, at the very latest the date on which the Manitoba Hydro board of directors
approved the Major Agreed Points.
166. The Major Agreed Points is also more than a commercial contract. Additionally, or in the alternative, it represents a formal accommodation by an agent of the Crown of collectively held
Métis Section 35 Rights that are constitutionally protected and subject to the honour of the
Crown and related duties.
167. The Manitoba Hydro board of directors approved the terms of the Major Agreed Points, and Manitoba Hydro at all times represented to MMF that the Major Agreed Points was legally
Enclosure 2 -47- enforceable. All material terms of the Major Agreed Points were agreed between the parties, who were represented by counsel.
168. Manitoba Hydro has failed to make each of the payments prescribed in the Major Agreed
Points. These actions constitute a breach, and anticipatory breach, of its legal obligations as demanded by the Major Agreed Points and the honour of the Crown.
169. In addition to the express breaches of the Major Agreed Points, Manitoba Hydro has breached its implied contractual obligations to act in good faith, engage in fair dealing, and the obligation of honest performance. The actions demonstrating this include, but are not limited to:
(a) Manitoba Hydro failed to deal honestly, candidly, fairly, honourably, and in good
faith with MMF and their representatives when it unilaterally decided to not abide
by the terms of the Major Agreed Points and refused to provide a rationale for
doing so;
(b) it failed to conduct itself in accordance with the reasonable expectations of MMF
and the honour of the Crown in resolving disputes under or related to the Major
Agreed Points;
(c) it misrepresented material facts (either affirmatively or by material
non-disclosure), and misled MMF about its intention to comply with the Major
Agreed Points in an attempt to obtain various benefits thereunder from MMF
without complying with its corresponding contractual obligations; and
Enclosure 2 -48-
(d) it took steps to ensure that MMF might lose any bargained right, objective, or
benefit obtained via the Major Agreed Points after Manitoba Hydro itself enjoyed
substantial benefits of the agreement.
170. The Major Agreed Points is a contract, an accommodation agreement, a “negotiated
agreement” under the TPA and an “Impact and Benefit Agreement” aiming to advance the goal
of reconciliation. The breaches by Manitoba Hydro in relation to the Major Agreed Points are egregious violations of the honour of the Crown.
171. MMF pleads, in the alternative, that if the entire Major Agreed Points is not legally
binding, which is not admitted but expressly denied, then Article 9 of the Major Agreed Points is
legally enforceable by itself—and was breached by Manitoba Hydro.
172. MMF has suffered damages as a result of these breaches of the Major Agreed Points
particulars of which will be provided prior to trial.
B. The Turning the Page Agreement
173. The TPA is a legally binding written contract between MMF, Manitoba Hydro, and the
Manitoba Government.
174. The TPA is also more than a commercial contract. Additionally, or in the alternative, it is
a formal accommodation agreement and “Impact and Benefit Agreement” with MMF which is
enforceable at law and equity, represents accommodation of collectively held Section 35 Rights,
and is and subject to the honour of the Crown and related duties.
175. In consideration for and reliance upon the terms set out within the TPA, MMF withdrew
the Bipole and Keeyask Appeals and did not initiate judicial review proceedings in relation to the
Enclosure 2 -49-
Bipole III and Keeyask projects seeking to quash the Manitoba Government’s approvals of these
projects. These procedural and legal rights are no longer available to MMF. In addition, in
reliance on the processes for reaching “negotiated agreements” related to Future Developments
in Article 4.3.2 of the TPA, MMF did not initiate judicial review proceedings in relation to the
St. Vital Transmission Complex, as one of the Six Manitoba Hydro Projects in the Major Agreed
Points.
176. In the spirit of reconciliation, MMF, Manitoba Hydro, and the Manitoba Government agreed to a dispute resolution process to settle issues that may arise in the implementation of the TPA.
177. The TPA specifically indicates that it is legally binding. It was negotiated by counsel for all parties. All parties expressly acknowledged and relied upon the TPA as a legally binding agreement at material times, including the time of the Decision and its implementation.
178. The honour of the Crown requires that in order to terminate the TPA, the Manitoba
Government, and Manitoba Hydro must act in good faith, in accordance with the negotiated express and implied terms of the TPA (including the dispute resolution mechanism), and in accordance with the constitutional imperative of reconciliation and other related duties owing to
MMF.
179. Manitoba Hydro and the Manitoba Government have breached the terms of the TPA by purporting to unilaterally terminate the agreement contrary to the terms of the TPA and without engaging in the required Dispute Resolution Process.
Enclosure 2 -50-
180. Manitoba Hydro and the Manitoba Government refused to pay the $1,000,000.00 owed to
MMF on December 1, 2018. This is a breach of the TPA. They are in anticipatory breach of all
further amounts owing under the TPA. It was an express or implied term of the TPA that
Manitoba Hydro and the Manitoba Government could only terminate the TPA or seek to modify
its terms for good reason, in good faith, and in a manner consistent with the honour of the
Crown.
181. In addition, the Manitoba Government and Manitoba Hydro breached the TPA through their actions in relation to the Major Agreed Points. In particular, the Decision, OIC, and
Directive are violations of TPA and the honour of the Crown. Manitoba Hydro and the Manitoba
Government were obligated to invoke the the TPA’s Dispute Resolution Process and engage in
formal consultation with MMF when contemplating the repudiation of the Major Agreed Points.
The TPA explicitly states that: i) all issues in dispute between the parties will be referred to the
Steering Committee prior to any party taking any other action; and ii) the Crown has a duty to
consult with MMF when any proposed decision or action would adversely affect Métis
Section 35 Rights.
182. The actions of the Manitoba Government and Manitoba Hydro are a bad faith and
dishonourable attempt to benefit from MMF’s waiver of its legal rights to challenge the Six
Manitoba Hydro Projects in a timely manner, without providing the corresponding benefits
agreed upon.
183. Through these actions, the Manitoba Government and Manitoba Hydro have infringed the
constitutionally protected rights of the Manitoba Métis Community and failed to uphold their
obligations pursuant to the honour of the Crown.
Enclosure 2 -51-
184. Additionally, the Manitoba Government and Manitoba Hydro have breached their
obligations of good faith, fair dealing, and honest performance by:
(a) failing to deal honestly, candidly, fairly, and in good faith with MMF and its
representatives in performing or considering reasons not to perform the
obligations prescribed by the TPA;
(b) failing to conduct themselves in a manner consistent with the reasonable
expectations of performance under the TPA, which included not unreasonably or
capriciously frustrating the Dispute Resolution Process (through delays or
otherwise) and not unreasonably or capriciously terminating the TPA;
(c) lying, misrepresenting (either affirmatively or by material non-disclosure), and
misleading MMF in respect of matters pertaining to the TPA in an attempt to
obtain various benefits thereunder from MMF without complying with the
corresponding contractual obligations of the Manitoba Government and Manitoba
Hydro;
(d) abusing and misusing the discretionary provisions of the TPA so as to gain profit
or advantage from MMF; and
(e) by taking steps to cause circumstances by which MMF might lose or forfeit any
bargained right, objective, or benefits under the TPA.
185. In so doing, Manitoba Hydro and the Manitoba Government purported to exercise discretion granted to them under the TPA and the Major Agreed Points for reasons collateral, ulterior, and unrelated to performance of their contractual obligations, including political or
Enclosure 2 -52- personal objectives. This discretion was exercised to defeat the legitimate interests, expectations, and the bargained rights, objectives, and benefits of MMF.
186. MMF has suffered damages as a result of the breach and purported termination of the
TPA particulars of which will be provided prior to trial.
Inducing Breach of Contract
187. As set out above, the TPA and the Major Agreed Points were legally binding contracts between MMF, the Manitoba Government, and Manitoba Hydro, and MMF and Manitoba Hydro respectively.
188. Each of Pallister, Cullen, Doak, Mayer, Clarke, and the Manitoba Government were or should have been aware of these legally binding agreements and the enforceable obligations of
Manitoba Hydro.
189. Each of Pallister, Cullen, Doak, Mayer, Clarke, and the Manitoba Government intentionally and successfully induced Manitoba Hydro to breach its legal obligations to MMF through the Major Agreed Points by, among other conduct, conspiring to encourage support and approval for the OIC and the Directive, and then requiring Manitoba Hydro to violate its contractual and other duties owing to MMF as an agent of the provincial Crown.
190. Similarly, each of Pallister, Cullen, Doak, Mayer, Clarke, and the Manitoba Government intentionally and successfully induced Manitoba Hydro to breach the contractual obligations it owed to MMF through the TPA by, among other conduct, giving notice to terminate the TPA in bad faith, and inducing the Manitoba Government and Manitoba Hydro not to comply with the
Dispute Resolution Process during the termination of the Major Agreed Points and the TPA.
Enclosure 2 -53-
191. As a result of the induced breaches of contract, MMF has suffered substantial damages. It has lost the benefits of the Major Agreed Points and the TPA and has compromised its rights and interests in the Six Manitoba Hydro Projects, including its citizens’ Métis Section 35 Rights that were accommodated and reconciled through the TPA and Major Agreed Points. In addition,
MMF has suffered other damages, particulars of which will be provided prior to trial.
192. There are no legal justifications for the actions undertaken by each of Pallister, Cullen,
Doak, Mayer, Clarke, and the Manitoba Government. Pallister’s statements and conduct and the
Manitoba Government’s other public actions after the Major Agreed Points was terminated further support the assertion that the actions of the Manitoba Government and Manitoba Hydro were carried out in bad faith.
Civil Conspiracy
193. Pallister, Cullen, Doak, Mayer, Clarke, and the Manitoba Government conspired:
(a) for the predominant purpose of causing injury to MMF through the bad faith
termination of the Major Agreed Points and the TPA;
(b) to use unlawful means to terminate the TPA, cause Manitoba Hydro to repudiate
the Major Agreed Points, and cause injury to MMF; and
(c) to ensure Manitoba Hydro did not comply with its legal obligations under the
Major Agreed Points.
194. The Defendants agreed and collectively worked to garner sufficient support to approve the OIC and the Directive—despite knowing or being reckless to the fact that the Directive was an unlawful exercise of statutory power. The Defendants then conspired to ensure that Manitoba
Enclosure 2 -54-
Hydro complied with the Directive despite knowing of Manitoba Hydro’s legal obligations to
MMF.
195. Pallister’s public comments after the OIC and Directive purporting to terminate the Major
Agreed Points, including, among other things, that the money owing to MMF was “persuasion money” and that MMF is only a “special interest group” are a clear indication of the bad faith intention of Pallister, Cullen, Doak, Mayer, Clarke, and the Manitoba Government. MMF was never provided with an opportunity to engage in negotiations over the Decision, nor were they ever provided with written reasons justifying the Decision, OIC, or Directive.
196. Pallister, Cullen, Doak, Mayer, Clarke, and the Manitoba Government continued their conspiracy to harm MMF and its interests post-termination of the Major Agreed Points. This conspiracy resulted in the purported termination of the TPA without engaging in its formal
Dispute Resolution Process.
197. Full particulars of these conspiracies are unknown to MMF but are known to the
Defendants.
198. MMF pleads that the actions of the Defendants after the termination of the TPA are an indication that the conspiracy engaged in by the Defendants to weaken MMF is ongoing.
199. At all times the Defendants intended to injure MMF. MMF has suffered damages as a result of these conspiracies.
Breach of Constitutional Duties
200. At all material times, by virtue of MMF’s status as the representative of the Manitoba
Métis that hold Métis Section 35 Rights, the TPA and Major Agreed Points, and their status as
Enclosure 2 -55- public officials or entities, the Defendants collectively and individually owed constitutional and legal duties to MMF.
201. The content of these duties included, but was not limited to:
(a) a duty to negotiate with MMF on all issues related to the Major Agreed Points and
the TPA;
(b) a duty to consult with MMF on all issues related to the Major Agreed Points and
the TPA;
(c) a duty to behave towards MMF with utmost good faith and to avoid the
appearance of sharp dealing;
(d) a duty to ensure that any action undertaken by the government proportionately
considers the interests of MMF in light of the constitutional obligation of the
honour of the Crown;
(e) a duty to honourably and diligently implement the TPA and Major Agreed Points;
(f) a fiduciary duty based on the Métis Section 35 Rights addressed and
accommodated through the TPA and Major Agreed Points; and
(g) a duty of intellectual honesty regarding the consideration of and decisions related
to the TPA and Major Agreed Points.
202. By breaching the TPA and seeking the termination of the Major Agreed Points, each of the Defendants have breached their duties owed to MMF.
Enclosure 2 -56-
203. As a result of these breaches, MMF has suffered substantial damages. It has lost the
benefits of the Major Agreed Points and the TPA and has compromised its rights and interests
impacted by the Six Manitoba Hydro Projects. It has suffered other damages, particulars of
which will be provided prior to trial.
Misrepresentation
204. As an agent and delegate of Manitoba, Manitoba Hydro negligently represented its commitment to the Major Agreed Points. Manitoba Hydro represented it did not require any further approvals. In the event Manitoba Hydro did require approval from the Government of
Manitoba, which is not admitted but expressly denied, it failed to ensure that the Manitoba
Government was agreeable to the Major Agreed Points’ terms and conditions. These representations were false. They were made negligently.
205. Similarly, Manitoba Hydro and the Manitoba Government represented that all terms of
the TPA would be abided by, the Dispute Resolution Process utilized, and all payments owing
under the agreement made on time. These representations were false. They were made
negligently.
206. In addition, the Manitoba Government participated in Steering Committee meetings from
January 2018 to March 2018 and at no point raised any concerns with MMF’s reliance on the
TPA processes and Major Agreed Points prior to March 8, 2018. During this time the consultation, regulatory, and engagement processes for two of the Six Manitoba Hydro Projects was ongoing.
Enclosure 2 -57-
207. MMF relied on all these representations in a reasonable manner to its detriment,
including by compromising MMF’s rights and interests in connection with the Six Manitoba
Hydro Projects.
208. As a direct result of its reliance on these representations, MMF has suffered substantial
damages. It has lost the benefits of the Major Agreed Points and the TPA, has compromised its
rights and interests impacted by the Six Manitoba Hydro Projects, including its citizens’ Métis
Section 35 Rights that were addressed and accommodated through the TPA and Major Agreed
Points, and has suffered other damages, the particulars of which will be provided prior to trial.
Misfeasance in Public Office
209. Pallister, Cullen, Doak, Mayer, and Clarke were at all material times holders of public
office. Each of those Defendants acted deliberately, unlawfully, in bad faith, maliciously, and for
improper purposes in the exercise of their public functions, as set out above. Each of them knew
or were reckless to the fact that their conduct was unlawful and likely to injure MMF.
210. The Directive issued by the Manitoba Government, and Pallister, Cullen, Doak, Mayer, and Clarke, was unlawful and not authorized pursuant to The Crown Corporations and
Governance Accountability Act or any other legal authority. At all times, the Manitoba
Government, Pallister, Cullen, Doak, Mayer, and Clarke knew of or were reckless as to the unlawfulness of the Directive.
211. The Manitoba Government, Pallister, Cullen, Doak, Mayer, and Clarke deliberately violated not only the express terms of the TPA and the Major Agreed Points, but also their delegated legal authority provided to Manitoba Hydro in the TPA and their obligations pursuant
Enclosure 2 -58- to the honour of the Crown. These actions were taken by Pallister, Cullen, Doak, Mayer, and
Clarke to injure MMF, rather than for any lawful or bona fide purpose.
Unlawful Interference with Economic Interests
212. The Defendants intended to cause MMF economic loss by violating their contractual and constitutional obligations in breaching, or inducing Manitoba Hydro to breach, the Major Agreed
Points and the TPA. These unlawful means have caused MMF to lose the economic benefit of both agreements.
213. Pallister’s comments after the Directive was issued are a clear indication of the
Defendants’ intention to cause MMF economic harm. Pallister similarly proceeded to raise money for the Progressive Conservative Party of Manitoba explicitly on the basis of the unlawful actions directing Manitoba Hydro to breach the Major Agreed Points. Pallister abused his public office to encourage and engage in unlawful actions resulting in Manitoba Hydro being induced to breach and/or repudiating the Major Agreed Points and the Defendant’s terminating the TPA, thus bringing about intended economic harm to MMF.
214. The Defendants knew or were reckless to the fact that at all material times the OIC and
Directive were contrary to the express contractual terms of the Major Agreed Points and the
TPA, and were not authorized by The Crown Corporations and Governance Accountability Act or any other legal authority. Despite knowing this, the Defendants, other than Manitoba Hydro, induced Manitoba Hydro into failing to comply with its contractual, statutory, and constitutional obligations, and those Defendants also failed to abide by their own contractual, statutory, and constitutional obligations. As set out above, the clear intent of these actions was to deprive MMF of the economic benefit of both the Major Agreed Points and the TPA.
Enclosure 2 -59-
215. The Defendants caused MMF significant economic harm through these unlawful actions.
Punitive Damages
216. MMF pleads that each of the Defendants acted maliciously, in bad faith, and in violation
of their respective legal and constitutional duties, including the honour of the Crown.
217. Additionally, the Defendants’ actions were motivated by unlawful or illegitimate
objectives and harming MMF. They demonstrated a wanton and callous disregard for MMF’s
rights and interests. Manitoba Hydro had a long-standing practice of negotiating Reconciliation
Agreements with First Nations that were similar to the Major Agreed Points; yet, none of these
other agreements or Indigenous communities were signaled out in the Directive or by the
Manitoba Government.
218. The Defendants’ conduct is deserving of denunciation and condemnation by this Court.
An award of aggravated, exemplary, and punitive damages is warranted to promote deterrence of
such conduct.
219. MMF submits that it is entitled to the relief sought in paragraph 1 of this Statement of
Claim.
March 3, 2020 Date of Issue
Enclosure 2 -60-
LENCZNER SLAGHT ROYCE SMITH PAPE SALTER TEILLET LLP GRIFFIN LLP 546 Euclid Avenue 130 Adelaide St. West, Suite 2600 Toronto, Ontario, M6G 2T2 Toronto, Ontario, M5H 3P5 Jason T. Madden Paul-Erik Veel Tel.: 416-916-3853 Tel: 416-865-2842 Fax: 416-916-3726 Fax: 416-865- 2861 [email protected] [email protected] Marc E. Gibson Margaret Robbins Tel.: 416-855-2649 Tel.: 416-865-2893 Fax: 416-916-3726 Fax: 416-865-3711 [email protected] [email protected] Daniel Goudge Adam H. Kanji Tel.: 647-245-2331 Tel.: 416-865-6763 Fax: 416-916-3726 Fax: 416-865-9010 [email protected] [email protected] Counsel for the Plaintiff, Counsel for the Plaintiff, Manitoba Metis Federation Inc. Manitoba Metis Federation Inc.