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