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COMMUNITIES AND GOVERNANCE - Duties of the Crown - Honour of the Crown

Thursday, June 24, 2021 @ 12:56 PM  


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Appeal by the Manitoba Metis Federation (MMF) from the dismissal of its judicial review application of Manitoba’s order-in-council setting aside a term sheet between the MMF and Manitoba Hydro. The order authorized the issuance of a Directive which ordered that Hydro not proceed with the MMF/Hydro term sheet (MAP) at this time. MMF and Hydro finalized the MAP, an unsigned “DRAFT – For Discussion Purposes Only” point-form term sheet to address issues associated with a Transmission Project. The MAP had Hydro pay the MMF $67.5 million in return for the MMF agreeing not to file legal challenges to existing, identified or future Hydro projects. MMF, Hydro and Manitoba executed a MMF-Hydro-Manitoba-Turning-the-Page-Agreement (TPA) that required Hydro to pay $2 million to the MMF on closing. In return, MMF withdrew appeals from decisions to license two Hydro projects. The TPA also required Hydro to make annual payments to MMF during the term of the agreement for MMF to maintain a non-adversarial working relationship with Hydro and to participate in initial processes relating to unaddressed impacts of the two projects. In 2017, consistent with the processes agreed to in the TPA for reaching agreements, MMF and Hydro executed a memorandum of understanding that established a six-month discussion process to achieve an agreement to address issues associated with the Transmission Project. MMF was of the view that the unsigned MAP was a binding legal agreement. Manitoba and Hydro were not of the same view. The reviewing judge concluded that the Directive was a lawful and reasonable exercise of Cabinet’s statutory power to enforce its stewardship role over Hydro and that neither the Directive nor the decision engaged the honour of the Crown, and that MMF was not entitled to any special procedural rights regarding the issuance of the order. Alternatively, he found that, if the honour of the Crown was engaged, Manitoba acted honourably in the circumstances.

HELD: Appeal dismissed. While the reviewing judge erred in deciding that the honour of the Crown had no application in this case, Manitoba acted reasonably as to its obligation to act honourably. The TPA and the Directive engaged the honour of the Crown. While the TPA was not a modern-day treaty, it was still a very important agreement whose purpose was to establish a process to resolve outstanding claims by the Métis relating to Hydro projects. The TPA was in part an accommodation agreement as it set out a process for future discussions and a dispute resolution process. The TPA referenced the duty to consult and to accommodate which typically flowed from the principle of the honour of the Crown. Given the interrelationship between the TPA, the MAP and the Directive and its potential to adversely affect the TPA’s accommodation of Métis rights, the Directive also engaged the honour of the Crown. Manitoba acted honourably in the circumstances. The meetings provided the MMF with the opportunity to be heard both prior to and after the issuance of the Directive. The Crown’s stewardship obligations were not set aside by its obligation to act honourably. The fact that Manitoba refused to reveal to the MMF the content of the Cabinet policy deliberations on the MAP issues at the meetings was not dishonourable conduct. Cabinet had claimed privilege over that information. When the MMF requested it to do so, Manitoba willingly, and without delay, followed the process stipulated in the TPA. It participated in the meetings to try to resolve the MAP issues both prior to and after the issuance of the Directive. Cabinet had the authority to issue the Directive and order the decision that Hydro not proceed with the MAP at this time. The extent of the procedural rights sought by the MMF was incompatible with the confidential Cabinet policy-making function that caused the Directive to be issued. The meetings provided the MMF with the opportunity to be heard both prior to and after the issuance of the Directive.

Manitoba Metis Federation Inc. v. Manitoba (Premier), [2021] M.J. No. 135, Manitoba Court of Appeal, R.J. Chartier C.J.M., D.M. Cameron and C.J. Mainella JJ.A., May 6, 2021. Digest No. TLD-June212021007