First Nation asks court to strike down licence for diversion

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This article was published 22/07/2022 (1190 days ago), so information in it may no longer be current.

A northern Manitoba First Nation has asked the Court of Queen’s Bench to nullify a final operating licence for the Churchill River diversion, arguing Manitoba Hydro and the provincial government failed to consult them.

Tataskweyak Cree Nation and its chief, Doreen Spence, applied for a judicial review of the final licence in March after the provincial government officially signed off on the continued operations of the water control structures in May 2021.

The community, situated 900 kilometres north of Winnipeg on the shores of Split Lake, claims the river system has been devastated by the diversion, which had been operating under an interim licence since 1976, and Manitoba Hydro’s augmented flow program, which was renewed annually since 1986.

The court application claims the fishery at Southern Indian Lake has all but closed due to water choked by sediment and fish contaminated with methyl-mercury; shorelines and habitat on the lower Churchill River and the Rat-Burntwood-Nelson River system have been destroyed; the lake sturgeon population has dwindled owing to manipulated water levels; and TCN remains under a boil water advisory.

“All of these environmental impacts are undermining the way of life of Tataskweyak Cree Nation, to which Treaty 5 guarantees the right to hunt and fish,” the application states. “Sturgeon play a significant role in the culture and spirituality of the people of TCN and the loss of sturgeon has had a huge effect on the cultural and spiritual well-being of the nation.”

Both the Manitoba government and Manitoba Hydro “fell far short” of their duties to consult and potentially accommodate the First Nation community, court documents state.

“Manitoba Hydro engaged in very little consultation with TCN in respect to its application for the final licence,” the application reads. “For the province’s part, while its consultation process notionally lasted eight years, it was anemic in substance.”

TCN also claims there was little discussion of substantive issues and the minister responsible for issuing the licence did not seriously consider the community’s concerns and proposals.

The community has asked the court to set aside the final licence, order Manitoba Hydro and the provincial government to engage in meaningful consultation with the First Nation prior to the issuance of a new licence, and to cover the cost of the application.

Manitoba Hydro applied for a final licence for the Churchill River diversion in 2009. The licence issued by the province last year included new conditions meant to address concerns raised by First Nations.

An accompanying cover letter contained directives to the Crown corporation with respect to monitoring the effect on shore line erosion, water quality and methyl-mercury in fish.

The province has required Manitoba Hydro to take steps to mitigate shoreline erosion, perform studies to improve the environment for fish downstream of the Missi control structure (part of the diversion), and participate in a system-wide monitoring program in the affected area.

The province promised to review the Environment Act and the Water Power Act, to modernize both pieces of legislation.

Manitoba Hydro and the provincial government declined to comment as the matter is before the court.

danielle.dasilva@freepress.mb.ca