Manitoba Court dismisses MMF’s application for judicial review of Manitoba Cabinet Directive

Maureen Killoran, QC, Sean Sutherland

Mar 18, 2020

On Monday, March 16, 2020, Chief Justice Joyal of the Manitoba Court of Queen’s Bench dismissed the Manitoba Metis Federation Inc.’s (MMF) application for judicial review of the Manitoba Cabinet’s “Directive to Manitoba Hydro-Electric Board Respecting Agreements with Indigenous Groups and Communities” (the Directive).

The Directive seeks to align the Government of Manitoba’s policies with Manitoba Hydro’s practices by requiring that all relationship and benefit agreements with Indigenous communities provide legally required mitigation or compensation measures that address thoroughly defined impacts on Indigenous rights or obtain ministerial approval before they are entered into. While the Directive applies broadly, it was issued in the context of the Manitoba government’s concerns about a term sheet between Manitoba Hydro and the MMF that would have paid at least $67.5 million to the MMF without linking those payments to impacts on Indigenous rights.

The MMF asked the Court to quash the Directive on procedural and substantive grounds. Chief Justice Joyal declined to do so, finding that the Directive falls within the Manitoba Cabinet’s broad stewardship authority to ensure that Crown corporations act in a fiscally prudent manner and are aligned with the government in the mitigation and compensation of potential project impacts on Indigenous rights.

In reaching this conclusion, the Chief Justice noted that the Directive expresses in a “transparent, predictable fashion” what the Manitoba government requires for relationship and benefit agreements with Indigenous groups.

Osler lawyers Maureen Killoran Q.C. and Sean Sutherland represented Premier Brian Pallister, the Minister of Crown Services, the Executive Council for Manitoba and the Government of Manitoba in this matter. You can read more in The Globe and Mail and CBC News