Manitoba Métis Federation Inc. v. Canada (Energy Regulator)

Manitoba Métis Federation Inc. v. Canada (Energy Regulator)
Court (s) Database
Federal Court of Appeal Decisions
Date
2023-02-06
Neutral citation
2023 FCA 24
File numbers
A-17-21
Decision Content
Date: 20230206
Docket: A-17-21
Citation: 2023 FCA 24
CORAM:
RENNIE J.A.
GLEASON J.A.
RIVOALEN J.A.
BETWEEN:
MANITOBA MÉTIS FEDERATION INC.
Appellant
and
THE CANADA ENERGY REGULATOR AND THE MANITOBA HYDRO-ELECTRIC BOARD
Respondents
and
THE ATTORNEY GENERAL OF MANITOBA
Intervener
Heard by online videoconference hosted by the Registry
on June 21 and June 22, 2022.
Judgment delivered at Ottawa, Ontario, on February 6, 2023.
REASONS FOR JUDGMENT BY:
RIVOALEN J.A.
CONCURRED IN BY:
RENNIE J.A.
GLEASON J.A.
Date: 20230206
Docket: A-17-21
Citation: 2023 FCA 24
CORAM:
RENNIE J.A.
GLEASON J.A.
RIVOALEN J.A.
BETWEEN:
MANITOBA MÉTIS FEDERATION INC.
Appellant
and
THE CANADIAN ENERGY REGULATOR AND THE MANITOBA HYDRO-ELECTRIC BOARD
Respondents
and
THE ATTORNEY GENERAL OF MANITOBA
Intervener
REASONS FOR JUDGMENT
RIVOALEN J.A.
Table of Contents
I. Introduction 4
II. Issues 9
III. Standard of Review 10
IV. Background 12
A. History of the Métis people of Manitoba and the MMF 13
B. The process leading to the approval, construction, and operation of the Project 14
C. The amended text of Conditions 3 and 15 18
D. The MMF complaint to the NEB (replaced later with the CER Commission) 20
E. The litigation history before the Manitoba courts in connection with the Project 22
V. The Decision under appeal 23
VI. Analysis 25
A. Did the Commission err by failing to consider or apply the honour of the Crown in the Decision? 25
B. Did the Commission err by failing to correctly interpret the meaning of Condition 3, as amended by the Federal Order in Council? 31
(1) The MMF’s submissions 31
(2) The Commission’s Decision 33
(3) Principles of statutory interpretation applicable to Condition 3 36
(a) The analysis of the text of Condition 3 38
(b) The analysis of the context of Condition 3 41
(i) A brief framework of the CER Act 41
(ii) Decision EH-001-2017 43
(iii) The CCAR 46
(iv) The Federal Order in Council 50
(c) The analysis of the purpose of Condition 3 52
(4) Conclusion of the interpretation of Condition 3 53
C. Did the Commission err by failing to consider the effects of the Decision on the section 35 rights of the Métis, as required by subsection 56(1) of the CER Act? 57
D. Did the Commission err by failing to hold a public hearing before making the Decision, as required by subsection 52(1) of the CER Act? 60
VII. Conclusion 63
I. Introduction
[1] The appellant, the Manitoba Métis Federation Inc. (the MMF), represents the interests of the Métis people of Manitoba in this appeal. The MMF appeals the decision of the Commission of the Canadian Energy Regulator (the Commission) dated August 11, 2020, in file OF-FAC-IPL-M180-2015-01 04 (the Decision). The Decision concerns the implementation and tracking of commitments made to the Métis in connection with the Manitoba-Minnesota Transmission Project (the Project).
[2] The Project is an international power line spanning 213 kilometres in length, extending from Winnipeg to the Manitoba-Minnesota border. The Project development area comprised just under 716 hectares of Crown land, of which 293 hectares were unoccupied Crown land. This unoccupied Crown land represents areas where the Métis are free to exercise their harvesting rights without requiring permission from the Crown. The Project cuts through the heart of the Métis community’s territory on which the Métis hunt, trap, fish and gather food, rocks and minerals for domestic, social and ceremonial purposes.
[3] The respondent, the Manitoba Hydro-Electric Board (Manitoba Hydro) is a provincial Crown corporation and an agent of the provincial Crown of Manitoba, established pursuant to The Manitoba Hydro Act, C.C.S.M., c. H190. Manitoba Hydro is the proponent of the Project and responsible for its construction and operation.
[4] The first intervener, the Canadian Energy Regulator (CER), is participating in these proceedings to assist the Court in understanding the regulatory mandate and jurisdiction of the CER and its Commission, including the Commission’s role in ensuring that proponents, such as Manitoba Hydro, comply with the conditions attached to certificates of public convenience and necessity issued for the construction and operation of international power lines. The CER takes no position on the merits of the appeal.
[5] The second intervener, the Attorney General of Manitoba, represents the Government of Manitoba, and participates in these proceedings because the issues raised in the appeal are of general importance to the Province of Manitoba.
[6] The Project crosses an international border. Accordingly, it was subject to a variety of provincial and federal regulatory requirements. Manitoba Hydro was required to seek a provincial licence pursuant to Manitoba’s The Environment Act, C.C.S.M., c. E125, which involved an environmental assessment and hearings before Manitoba’s Clean Environment Commission. Manitoba Hydro also required federal approvals pursuant to the National Energy Board Act, R.S.C. 1985, c. N-7, as repealed by An Act to enact the Impact Assessment Act and the Canadian Energy Regulator Act, to amend the Navigation Protection Act and to make consequential amendments to other Acts, S.C. 2019, c. 28, s. 44 (the NEB Act) and the Canadian Environmental Assessment Act, 2012, S.C. 2012, c. 19, s. 52, as repealed by An Act to enact the Impact Assessment Act and the Canadian Energy Regulator Act, to amend the Navigation Protection Act and to make consequential amendments to other Acts, S.C. 2019, c. 28, s. 9 (the CER Act). The provincial and federal processes were coordinated.
[7] In December 2016, Manitoba Hydro applied for a permit for the Project under section 58.11 of the NEB Act, seeking authority from the National Energy Board (the NEB) to construct and operate the Project (the Project application).
[8] In October 2017, in response to concerns raised by Indigenous groups, the NEB recommended to the Minister of Natural Resources (designated by the Governor in Council as being responsible for the NEB Act) that the Project require a certificate of public convenience and necessity under section 58.16 of the NEB Act, rather than a permit under section 58.11 of the NEB Act. The NEB did so because it considered the certificate assessment more robust than the permit process. The certificate assessment allows more procedural flexibility and necessitates a public hearing before the NEB. Public hearings facilitate the discharge of the constitutional duties owed by the NEB to the Indigenous groups affected by the Project, and ensure the NEB has adequate remedial powers to address Indigenous concerns that may arise in the circumstances of the Project application. The certificate assessment also requires approval of the Project from the Governor in Council before a certificate can be issued.
[9] In December 2017, the Governor in Council designated the Project as an international power line to be constructed and operated in accordance with a certificate issued under the NEB Act.
[10] In March 2018, the Federal Crown advised the NEB and all interested parties that it would rely on the certificate assessment under the NEB Act to fulfill its constitutional duty to consult with Indigenous groups whose rights may be affected by the Project.
[11] In June 2018, the NEB held oral public hearings over several weeks; it heard oral traditional evidence, held cross-examinations, heard oral arguments, and received written arguments.
[12] After the NEB completed the public hearings but prior to releasing its reasons, this Court issued its decision in Tsleil-Waututh Nation v. Canada (Attorney General), 2018 FCA 153, [2019] 2 F.C.R. 3 [Tsleil-Waututh I]. As a result of the guidance set out in Tsleil-Waututh I, the Federal Crown, represented by the Major Projects Management Office, expanded its consultations with the Indigenous groups affected by the Project.
[13] On November 15, 2018, the NEB submitted its reasons for decision EH-001-2017 (decision EH-001-2017) to the Minister of Natural Resources, in which it recommended approval of the Project, subject to 28 conditions.
[14] On June 3, 2019, the Major Projects Management Office provided its Consultation and Accommodation Report for the Manitoba-Minnesota Transmission Project (the CCAR) to the Governor in Council.
[15] On June 13, 2019, the Governor in Council amended certain conditions set out in decision EH-001-2017 by Order in Council PC Number 2019-0784 (the Federal Order in Council). As I will explain further, the issues raised in this appeal pivot on the Commission’s understanding of the amendments made to Condition 3 and, in particular, the meaning of the phrases “all commitments made to Indigenous groups” and “or otherwise on the record”.
[16] On June 18, 2019, the NEB issued Certificate EC-059 (the Certificate), authorizing Manitoba Hydro to proceed with the construction and operation of the Project, subject to 28 conditions attached to the Certificate (the NEB conditions, as amended by the Federal Order in Council).
[17] Construction of the Project is now complete.
[18] On July 23, 2019, by letter to the NEB, the MMF asserted that Manitoba Hydro was not implementing the commitments captured by Condition 3 of the Certificate nor was it tracking those commitments as required by Condition 15. I will describe Conditions 3 and 15 more fully in paragraphs 58 and 59 of these reasons.
[19] On August 28, 2019, the NEB Act was repealed and the Canadian Energy Regulator Act, S.C. 2019, c. 28, s. 10 (the CER Act) was enacted. Pursuant to the CER Act, the NEB was replaced with the CER, and every certificate issued by the NEB is considered to have been issued under the CER Act.
[20] On June 4, 2020, the MMF filed a Notice of Application with the Commission requesting a declaration stating that Manitoba Hydro was in breach of Condition 3 of the Certificate, as amended by the Federal Order in Council. In the Notice of Application, the MMF alleged Manitoba Hydro “fail[ed] to ‘implement or cause to be implemented […] all commitments made to Indigenous groups through its Project application or otherwise on the record of the EH-001-2017’” [emphasis removed].
[21] On August 11, 2020, the Commission issued its Decision and found that Manitoba Hydro was in compliance with Conditions 3 and 15 of the Certificate. This Decision is the subject of this statutory appeal.
II. Issues
[22] The MMF advances four grounds of appeal:
Did the Commission err by failing to consider or apply the honour of the Crown in the Decision?
Did the Commission err by failing to correctly interpret the words of Condition 3, as amended by the Federal Order in Council?
Did the Commission err by failing to consider the effects of the Decision on the rights of the Métis, affirmed by section 35 of the Constitution Act, 1982, as required by subsection 56(1) of the CER Act?
Did the Commission err by failing to hold a public hearing before making the Decision, as required by subsection 52(1) of the CER Act?
[23] The MMF submits these questions are all questions of law.
[24] The MMF argues that the Commission erred on every question and requests that this Court grant the appeal, overturn the Decision, and send it back to the Commission for redetermination.
[25] For the reasons that follow, I would dismiss the appeal with costs.
III. Standard of Review
[26] Subsection 72(1) of the CER Act provides that an appeal from a decision of the Commission to this Court may be granted with leave on any question of law or of jurisdiction. This Court granted leave on November 19, 2020. Consequently, the appellate standard of correctness applies to questions of law arising from this appeal (Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653 at para. 37 [Vavilov]; Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 at para. 8).
[27] Vavilov requires this Court to depart from our previous jurisprudence, where a statutory appeal from the CER’s predecessor, the NEB, would have attracted a reasonableness standard of review (see, for example, Tsleil-Waututh I at paras. 212–19; Gitxaala Nation v. Canada, 2016 FCA 187, [2016] 4 F.C.R. 418 at para. 145).
[28] In my view, the four grounds of appeal all raise questions of law.
[29] On the first ground of appeal, the standard of correctness applies to the question of whether the Commission erred by failing to consider or apply the honour of the Crown in the Decision.
[30] The MMF’s second ground of appeal concerns the interpretation of the wording of Condition 3. While it seems like the law and the facts are somewhat “mussed together”, the legal content here is high and the answer to the question is driven mainly by law/legal standards. The Court should adopt the “extricable question of law or legal principle standard” here (see Canadian National Railway Company v. Emerson Milling Inc., 2017 FCA 79, [2018] 2 F.C.R. 573 at paras. 26–28 [Emerson Milling]).
[31] Going further, following the approach adopted by this Court in Emerson Milling, the essential character of this ground of appeal according to the MMF is that the Commission erred in law by taking a legally incorrect view of the commitments made to an Indigenous group on the record of the NEB proceedings. This ground of appeal is a matter of statutory interpretation: what is the meaning of “commitments […] made on the record of the EH-001-2017”? Specifically here, do commitments include the MAP?
[32] This is an extricable question of law. There is only one correct answer to the question of whether the MAP is a commitment made on the record of the EH-001-2017. This question is constrained by the specific context in which the NEB proceedings led to decision EH-001-2017, by the supplemental consultations that followed, and by the Federal Order in Council.
[33] Put another way, the Commission was asked, in essence, to determine the scope of its own record. As an administrative tribunal and court of record, it has the authority to determine what constitutes a commitment made on the record which will, in effect, become an enforceable condition attached to the Certificate.
[34] As the standard of correctness applies to this issue, no deference is owed by this Court to the Commission. We must embark on our own statutory interpretation exercise in order to determine whether the Commission committed an error.
[35] The third ground of appeal raises the question of whether the Commission erred by failing to consider section 35 rights. The standard of review is correctness.
[36] The last ground of appeal involves questions of procedural fairness. The Supreme Court of Canada recently confirmed that the standard of review applicable to questions of procedural fairness in a statutory appeal is correctness (Law Society of Saskatchewan v. Abrametz, 2022 SCC 29, 470 D.L.R. (4th) 328 at paras. 27, 30).
IV. Background
[37] Before commencing the analysis, it is helpful to situate the issues by reviewing the background in more detail. The story of how the MMF got before this Court and the role of the CER as a regulator will assist in understanding the text, context, and purpose behind Condition 3. It will also inform whether the Commission discharged its duty pursuant to subsection 56(1) of the CER Act to consider any adverse effects that the Decision may have on the section 35 rights of the Métis.
[38] I will repeat some of the events mentioned under the Introduction section of these reasons for the sake of chronological clarity.
A. History of the Métis people of Manitoba and the MMF
[39] For years, the Métis have fought and succeeded to have their constitutional Aboriginal rights recognized and protected by the courts. Their history includes the very creation of the province of Manitoba in 1870. At that time, 85 percent of the population of what is now Manitoba was Métis.
[40] In 2013, the Supreme Court of Canada was the first court to recognize that the honour of the Crown was engaged by constitutional obligations owed to the Métis pursuant to section 31 of the Manitoba Act, 1870, S.C. 1870, c. 3 (the Manitoba Act). The Supreme Court found that section 31 of the Manitoba Act was not a treaty, but it was a constitutional obligation crafted for the purpose of resolving Aboriginal concerns which then permitted the creation of the province of Manitoba (Manitoba Metis Federation Inc. v. Canada (Attorney General), 2013 SCC 14, [2013] 1 S.C.R. 623 at paras. 93, 94 [2013 MMF-SCC]). The Supreme Court concluded that the honour of the Crown was engaged and gave rise to a duty of diligent, purposive fulfillment towards the Métis (2013 MMF-SCC at para. 94). The Supreme Court found that this was not done and that a government sincerely intent on fulfilling the duty that its honour demanded could and should have done better (2013 MMF-SCC at para. 128).
[41] In the same Supreme Court decision, for the first time, the MMF was granted standing to represent the collective interests of the Métis people of Manitoba (2013 MMF-SCC at para. 44).
[42] The Métis have also been recognized as part of the Aboriginal peoples of Canada under section 35 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c. 11. As a result, the Métis enjoy a constitutionally protected right under section 35 to engage in practices that were historically important features of their distinctive communities, such as hunting (R. v. Powley, 2003 SCC 43, [2003] 2 S.C.R. 207).
B. The process leading to the approval, construction, and operation of the Project
[43] In 2014, the MMF, the Province of Manitoba, and Manitoba Hydro entered into the Kwaysh-kin-na-mihk la paazh Agreement (“turning the page” in the Michif language) (the TPA). The TPA describes the parties’ intent to build a forward-looking, productive, and non-adversarial working relationship in the context of Manitoba Hydro’s existing and future developments and operations. It includes a process for the parties to identify the effects of existing and future Manitoba Hydro developments on the section 35 rights of the Métis and, if necessary, a process to determine how to accommodate those effects.
[44] From 2014 onwards, in accordance with the TPA, Manitoba Hydro and the MMF met to discuss the Project and other existing and future transmission projects.
[45] On January 12, 2016, Manitoba Hydro and the MMF entered into a contribution agreement (the Contribution Agreement) which provided funding to the MMF for it to conduct a study to assess the potential effects of the Project on Métis land use and occupancy. In December 2016, the Métis Land Use and Occupancy Study was released.
[46] On March 1, 2017, Manitoba Hydro and the MMF entered into a Memorandum of Understanding. This Memorandum of Understanding referenced the TPA and set out a specific, time-limited negotiation process to be followed by Manitoba Hydro and the MMF in connection with the Project.
[47] As a result of the negotiations, a number of major points were agreed upon with respect to the Project, as well as other existing and future transmission projects. The major agreed-upon points were reduced to writing on June 29, 2017 (the MAP). The MAP provided for: (1) the payment by Manitoba Hydro to the MMF of 1.5 million dollars annually for 20 years and (2) a one-time lump sum payment of $37,500,000 to be held in a legacy fund for the benefit of the Métis. In exchange for these payments, the MMF was to provide full and final releases for the Project, as well as releases for other existing transmission projects and future transmission projects undertaken by Manitoba Hydro during the initial 20 years of the agreement.
[48] On July 5, 2017, the Board of Manitoba Hydro confirmed in its minutes that it was prepared to negotiate and sign an agreement with the MMF, substantially in accordance with the terms set out in the MAP. However, the MAP remained subject to Manitoba Hydro briefing the Government of Manitoba, fleshing out the details of the agreement, and legal counsels’ review.
[49] On October 31, 2017, the NEB recommended to the Minister of Natural Resources that the Project be designated by order of the Governor in Council as an international power line to be constructed and operated under a certificate of public convenience and necessity pursuant to section 58.16 of the NEB Act.
[50] On December 15, 2017, the Governor in Council designated the Project as an international power line to be constructed in accordance with a certificate issued under the NEB Act.
[51] On December 21, 2017, the NEB issued an order providing notice and establishing public hearings for the certificate assessment. Nineteen parties were granted intervener status, including the MMF. Hearings took place over six months, between December 2017 and June 2018.
[52] The public hearings provided an opportunity for Manitoba Hydro and the interveners to submit information requests, letters of comment and written evidence, give oral evidence and cross-examine, and make oral and written final arguments. Indigenous interveners were able to provide oral traditional evidence. The NEB gathered and considered all of this information and evidence in order to make its decision, prior to seeking approval of the Project from the Governor in Council. I will return to this later at paragraph 211 when I consider whether the Commission breached the principles of procedural fairness before making the Decision.
[53] On March 21, 2018, while the public hearings before the NEB were ongoing, the Manitoba Lieutenant Governor in Council passed Order in Council No. 00082/2018 (the Manitoba Order in Council) directing Manitoba Hydro not to proceed with the MAP at this time. The Manitoba Lieutenant Governor in Council derived its authority to issue the directive from subsection 13(1) of The Crown Corporations Governance and Accountability Act, C.C.S.M., c. C336.
[54] From June 4 to 8, 2018, during the public hearings, the NEB heard oral traditional evidence from various Indigenous interveners. The MMF provided no written or oral traditional evidence. However, at the close of the NEB hearings, the MMF included the TPA and MAP documents on the record of the NEB hearing as part of its response to the NEB’s Information Request No.1. During oral submissions before the NEB, Manitoba Hydro sought a ruling for the NEB to strike the MMF’s response from the record because it contained the MAP. The NEB denied Manitoba Hydro’s motion, thereby allowing the TPA and MAP to remain on the record of the proceedings, despite Manitoba Hydro’s objections.
[55] In August 2018, this Court released its decision in Tsleil-Waututh I, which provided guidance on how the Federal Crown can engage in meaningful, specific, and focused two-way dialogue with Indigenous groups whose rights could potentially be impacted by major projects such as pipelines. The Federal Crown immediately followed the guidance of Tsleil-Waututh I and tasked the Major Projects Management Office with expanding consultations with 21 Indigenous groups potentially impacted by the Project, including the MMF.
[56] In November 2018, the NEB released its decision for the Project, decision EH-001-2017, which recommended approval of the Project, subject to 28 conditions.
[57] On June 3, 2019, in advance of a decision from the Governor in Council regarding the approval of the Certificate, the Major Projects Management Office released the CCAR, which recommended that Conditions 3, 15, 21, 22, and 26 contained in decision EH-001-2017 be amended to address concerns raised by the Indigenous groups during the supplemental consultations.
C. The amended text of Conditions 3 and 15
[58] On June 13, 2019, the Governor in Council agreed with the recommendations set out in the CCAR and issued the Certificate. In so doing, Condition 3 (as recommended by the NEB) was amended as follows. The Governor in Council’s amendments to Condition 3 are italicized and underlined. The bold text was bolded in the original conditions recommended by the NEB in its Decision EH-001-2017:
3. Implementation of Commitments
3. Mise en œuvre des engagements
Manitoba Hydro must implement or cause to be implemented all of the policies, practices, mitigation measures, recommendations, and procedures for the protection of the environment and promotion of safety referred to in its application, or as otherwise agreed to in its related submissions as well as all commitments made to Indigenous groups through its Project application or otherwise on the record of the EH-001-2017.
Manitoba Hydro doit appliquer, ou faire appliquer, l’ensemble des politiques, pratiques, mesures d’atténuation, recommandations et marches à suivre, concernant la protection de l’environnement et la promotion de la sécurité dont il est fait mention dans la demande ou dont elle a convenu dans les documents connexes de même que tous les engagements pris envers les groupes autochtones dans la demande ou autrement consignés dans les dossiers de l’instance EH-001-2017.
[59] Condition 15 was also amended and obligated Manitoba Hydro to file a commitments tracking table listing. The relevant portion is reproduced here [the Governor in Council’s amendments to Condition 15 are italicized and underlined].
15. Commitments Tracking Table
15. Tableau de suivi des engagements
Manitoba Hydro must:
Manitoba Hydro doit:
a) file with the [Commission] and post on its website […] a commitments tracking table listing all commitments made in its application, including all commitments made to Indigenous communities, and otherwise agreed to during questioning or in its related submissions in the [NEB]’s EH-001-2017 proceeding, as well as commitments from the Clean Environment Commission hearing process that are of federal interest, and that includes references to:
a) déposer auprès de l’Office et afficher sur son site Web […] un tableau de suivi des engagements énumérant tous les engagements qu’elle a pris dans sa demande, y compris tous les engagements pris envers les collectivités autochtones, ou dont elle a convenu dans ses réponses aux questions ou dans les documents déposés au cours de l’instance EH-001-2017 de l’Office, de même que les engagements d’intérêt fédéral pris devant la Commission de protection de l’environnement, et indiquant :
i. the document in which each commitment appears (for example, the application, responses to information requests, hearing transcripts, permit requirements, condition filings, or other document);
i) le document où chaque engagement est énoncé (p. ex., la demande, les réponses aux demandes de renseignements, les transcriptions de l’audience, les exigences relatives aux permis, les dépôts liés aux conditions ou d’autres documents),
ii. the accountable lead for implementing each commitment; and,
ii) la personne responsable de la réalisation de chaque engagement,
iii. the estimated timeline associated with the fulfillment of each commitment;
iii) les délais estimatifs pour la réalisation de chaque engagement;
[…]
[…]
[The underlined and italicized portion represents the amendments made to Condition 15].
[Le texte souligné et en italique représente les amendements faits à la Condition 15].
[60] As I mentioned earlier, the Commission’s understanding of the phrase contained in Condition 3 (“all commitments made to Indigenous groups through its Project application or otherwise on the record of the EH-001-2017”) is the central issue in this appeal.
D. The MMF complaint to the NEB (replaced later with the CER Commission)
[61] On July 23, 2019, the MMF complained in writing to the NEB that Manitoba Hydro was not implementing or tracking commitments made to the MMF and captured by Conditions 3 and 15. The MMF took the position that the Contribution Agreement and the MAP, taken together, were commitments made to the MMF within the meaning of Condition 3, and Manitoba Hydro must honour those commitments as part of the licensing conditions imposed on the Project by the Governor in Council.
[62] Over a period of months, the MMF and Manitoba Hydro submitted several letters to the NEB setting out their respective positions on this question. During this time, on August 28, 2019, the CER Act came into force and, as a result, the Commission became responsible for managing the Project.
[63] On June 4, 2020, the MMF filed a Notice of Application with the Commission, requesting that the Commission exercise its jurisdiction to grant a declaration that Manitoba Hydro was in breach of Condition 3 of the Certificate. The MMF asked that the Certificate be suspended. The MMF also requested a public oral hearing pursuant to subsection 52(1) of the CER Act.
[64] The MMF framed its grounds in the Notice of Application as follows:
The impacts of the Project on the Métis people’s section 35 constitutional rights are significant and well documented in the Metis Land Use and Occupancy Study and are on the record of the NEB. In response to these identified impacts, the MMF and Manitoba Hydro reached the MAP. The MMF describes the MAP as an accommodation agreement that fully and finally addressed and satisfied all concerns of the Métis with respect to the Project.
Over Manitoba Hydro’s objections, the MMF successfully introduced the MAP on the record of the NEB.
The question for the Commission’s determination is whether the MAP is a commitment made to an Indigenous group through Manitoba Hydro’s Project application or otherwise on the record of the EH-001-2017 that must be enforced by the Commission.
This question engages the honour of the Crown, as it is the honour of the Crown that gives rise to the Crown’s duty to consult and, where appropriate, accommodate impacts on section 35 constitutional rights, and led to Canada’s amendment of Condition 3. The honour of the Crown requires not only that the Crown engage in consultations and put in place specific accommodations, but also that those accommodations be implemented and enforced so that Indigenous groups, such as the MMF, are not left with an empty shell of a promise.
[65] The MMF argued the MAP was a commitment made to Indigenous groups “on the record of the EH-001-2017”. According to the MMF, by failing to implement the MAP or cause it to be implemented, Manitoba Hydro breached Condition 3 of the Certificate.
[66] The Commission, in its Decision issued by letter dated August 11, 2020, found Manitoba Hydro to be in compliance with Conditions 3 and 15. In coming to its decision, the Commission had access to the record created during the public hearings and the letters exchanged between Manitoba Hydro and the MMF setting out their respective positions. The Commission also considered the CCAR relied upon by the MMF in its written submissions.
E. The litigation history before the Manitoba courts in connection with the Project
[67] As indicated in paragraph 53 above, in March 2018, the Government of Manitoba issued its Order in Council directing Manitoba Hydro not to proceed with the MAP “at this time”. The Manitoba Order in Council was the subject of a judicial review application brought by the MMF before the Manitoba Court of Queen’s Bench (Manitoba Métis Federation Inc. v. Brian Pallister et al., 2020 MBQB 49, [2020] 8 W.W.R. 523) [Pallister MBQB], which was subsequently appealed to the Manitoba Court of Appeal (Manitoba Métis Federation Inc. v. Brian Pallister et al., 2021 MBCA 47, [2021] 7 W.W.R. 475, leave to appeal to SCC refused, 39799 (3 March 2022) [Pallister MBCA]).
[68] The Manitoba Court of Appeal agreed with the MMF and stated that the application judge erred when he found that the honour of the Crown was not engaged and did not apply to the TPA or the Manitoba Order in Council. The Court of Appeal accepted the MMF’s submissions that the honour of the Crown applies to the TPA, which in turn applies to the MAP, and is therefore connected to the Manitoba Order in Council (Pallister MBCA at paras. 49–51). However, the Court of Appeal concluded that the Government of Manitoba had acted honourably in regard to issues surrounding the MAP (Pallister MBCA at paras. 55, 67, 87). The MMF’s application for leave to appeal to the Supreme Court of Canada was dismissed.
[69] In addition to the judicial review applications, the MMF filed a statement of claim in Manitoba’s Court of King’s Bench against Manitoba Hydro and the Government of Manitoba in which it requests, inter alia, that the MAP be found to be a legally binding agreement. That litigation is ongoing.
[70] I will now turn to the impugned Decision.
V. The Decision under appeal
[71] The Commission found that Manitoba Hydro was in compliance with Conditions 3 and 15 of the Certificate. The Commission held there was no basis to grant the relief sought by the MMF either in its letters or in its Notice of Application (Decision at pp. 1–2).
[72] The Commission noted it was not being asked to adjudicate the “legal characterization” of the TPA, the Contribution Agreement, or the MAP (collectively the MAP documents). Rather, the Commission found that what was in dispute between the MMF and Manitoba Hydro was whether the MAP documents and, in particular, the MAP itself, are commitments within the meaning of Condition 3 of the Certificate. If the MAP documents and, in particular, the MAP itself are commitments, the Commission had to consider whether those commitments need to appear in the Commitment Tracking Table as required by Condition 15 of the Certificate (Decision at p. 7).
[73] The Commission found that Manitoba Hydro did not make or acknowledge any commitment with regard to the MAP documents in its application materials or on the record from decision EH-001-2017. The Commission noted that Manitoba Hydro objected to the MAP documents, and particularly the MAP itself, being before the NEB because, according to Manitoba Hydro, the MAP itself was neither binding on it nor part of its application before the NEB. The Commission found that there was no explicit commitment or formal acknowledgement by Manitoba Hydro that the MAP documents were a commitment (Decision at p. 10).
[74] Accordingly, the Commission determined that the MAP documents were not a commitment made by Manitoba Hydro on record of decision EH-001-20177 or in its Project application (Decision at p. 10).
[75] In conclusion, the Commission found that the MAP documents were not a commitment within Condition 3, and therefore it was not necessary to list them as a commitment in the Commitment Tracking Table pursuant to Condition 15. Having reached this conclusion, the Commission indicated there was no basis for it to take further steps related to condition compliance or grant any of the relief requested by the MMF (Decision at p. 15).
[76] I will now turn to my analysis of the issues.
VI. Analysis
A. Did the Commission err by failing to consider or apply the honour of the Crown in the Decision?
[77] The principle of the honour of the Crown 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” (Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511 at para. 32 [Haida Nation]). The honour of the Crown originates in the Royal Proclamation of 1763 in which there is reference to “the several Nations or Tribes of Indians with whom We are connected, and who live under our Protection” (2013 MMF-SCC at para. 66), and in which the Crown “pledged its honour to the protection of Aboriginal peoples from exploitation by non-Aboriginal peoples” (Beckman v. Little Salmon/Carmacks First Nation, 2010 SCC 53, [2010] 3 S.C.R. 103 at para. 42 [Little Salmon]).
[78] The purpose of the honour of the Crown is the reconciliation between the assertion of Crown sovereignty and the pre-existing Aboriginal societies that were never conquered (Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), 2004 SCC 74, [2004] 3 S.C.R. 550 at para. 24; 2013 MMF-SCC at para. 66; Haida Nation at para. 25). The honour of the Crown is a constitutional principle engaged by section 35 of the Constitution Act, 1982 (Little Salmon at para. 42, 2013 MMF-SCC at para. 69). It applies whether or not the parties intend it to (Little Salmon at para. 61).
[79] There is no debate in the present appeal that the honour of the Crown applies to the Decision. The CER Act contains several provisions that mandate the application of the principles of the honour of the Crown. For example, subsection 10(2) specifies that the CER is an agent of the Crown. Paragraph 11(h) stipulates that the CER’s mandate includes “exercising its powers and performing its duties and functions in a manner that respects the Government of Canada’s commitments with respect to the rights of the Indigenous peoples of Canada.” Further, with respect to the Commission, section 56 requires that, when making an order, decision or recommendation under the CER Act, the Commission “consider any adverse effects that the decision, order or recommendation may have on the rights of the Indigenous peoples of Canada recognized and affirmed by section 35 of the Constitution Act, 1982.”
[80] In its submissions, the MMF argues that the Commission failed to consider or apply the principle of the honour of the Crown in reaching the Decision.
[81] The MMF does not take issue with the Federal Government’s consultations. Rather, it argues that the Commission itself failed to recognize and protect the accommodations reached between Manitoba Hydro and the MMF during the NEB certificate assessment process. It argues that “[t]he honour of the Crown is just as engaged downstream when an accommodation is being implemented as it is upstream during consultation. Accordingly, regulatory bodies, [such as the Commission], who act as—the Crown—downstream, are required to interpret and implement accommodations in a manner that ensures the honour of the Crown is upheld from a project’s approval throughout its lifecycle” (Appellant’s Memorandum of Fact and Law at para. 50, emphasis in original).
[82] I disagree with the MMF’s submissions, for the following reasons.
[83] First, I note that the question before the Commission was not about the adequacy of the Federal Government’s consultation obligations with the Indigenous groups. The Federal Government, as it was allowed to do, relied in part on the NEB public hearing process to discharge its obligations to consult with the Aboriginal groups impacted by the Project: Chippewas of the Thames First Nation v. Enbridge Pipelines Inc., 2017 SCC 41, [2017] 1 S.C.R. 1099 at paras. 32–34; Clyde River (Hamlet) v. Petroleum Geo-Services Inc., 2017 SCC 40, [2017] 1 S.C.R. 1069 at paras. 21–22; Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43, [2010] 2 S.C.R. 650 at para. 56.
[84] In addition to relying on the NEB hearing process, as I have explained earlier, following the guidance of this Court in Tsleil-Waututh I, the Federal Government extended its consultations with the Indigenous groups regarding the impact of the Project on their rights. The resulting CCAR offered additional information to the Governor in Council for it to consider before approving or denying the Certificate. Indeed, the CCAR was the genesis of the amendments to Conditions 3 and 15 attached to the Certificate. These consultations are not the subject of this appeal.
[85] Turning now to the Decision, the Commission first outlined the review it undertook with respect to the CCAR and noted that the CCAR gave rise to the amendments to Conditions 3 and 15. The Commission did not accept the MMF’s arguments that the purpose of the amendments was to address the dispute it had with Manitoba Hydro regarding the MAP documents (Decision at pp. 11–12).
[86] In reaching this conc