First Nation files suit against Hydro over river diversion

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This article was published 24/05/2023 (883 days ago), so information in it may no longer be current.

A northern First Nation is suing Manitoba Hydro, seeking a court injunction to restrain the Crown corporation’s Churchill River diversion.

The lawsuit filed in the Court of King’s Bench last week by O-Pipon-Na-Piwin Cree Nation, the non-profit Community Association of South Indian Lake and the South Indian Lake Fisherman’s Association is the latest move in a long battle over the diversion and the impact the hydroelectric operation has had on Southern Indian Lake and its river system in the North.

The new action — filed on the plaintiffs’ behalf by Vancouver-based lawyers Bruce McIvor and Melissa Rumbles — seeks interim and permanent injunctions restraining Hydro from operating the diversion in a way that interferes with the plaintiff’s use of the land, including exercising treaty rights.

The First Nation and associations also want the court to order Hydro to restore the ecological integrity of the lake, as well as grant legal costs and other relief.

Other First Nations, including Tataskweyak Cree Nation, have said the operation has had disastrous effects on the lake, including the decimation of fish and wildlife populations. (In April, Tataskweyak filed a lawsuit against the province in the Court of King’s Bench.)

O-Pipon-Na-Piwin is located about 770 kilometres north of Winnipeg and 130 km northwest of Thompson, on the east shore of Southern Indian Lake.

The facility began operations in 1976, diverting most of the Churchill River’s flow from Southern Indian Lake into the Nelson River. According to Hydro, the diversion was created to increase the flow of water to generating stations on the lower Nelson River.

Community members formerly resided on the western shore of the lake, where they had a “thriving, self-sufficient economy, supported primarily by the lake whitefish fishery,” but the diversion raised the lake’s average water level by approximately 10 feet, flooding the land, the OPNP lawsuit says.

“The plaintiffs bring this action to protect their lands and waters, resources and way of life from the ongoing impacts of the (diversion),” the lawsuit reads.

“(Hydro’s) operation of the (diversion) has significantly altered the lands and waters of Southern Indian Lake and had devastating impact on the plaintiffs’ way of life.”

Fluctuating water levels have eroded the shoreline, while flooding low-lying land, causing the shore to now mostly be composed of unstable clay cliffs instead of sand beaches, the court documents say.

Erosion, along with the rising water levels, has caused heavy metals, including mercury, to leach into the water, the lawsuit says.

“The shoreline is now almost devoid of the once-teeming wildlife and fish populations,” the lawsuit reads. “These changes… have decimated the lake whitefish population and the quality of the remaining fish has been severely undermined.”

The hydro operation prevents the lake from freezing solid, which makes it extremely dangerous in the winter — at least one person has drowned due to the hazards, according to the claim.

The province issued a final licence to Hydro to operate the diversion in May 2021. It had been operating under an interim licence since 1976, and Manitoba Hydro’s augmented flow program, which was renewed annually since 1986.

The licences have granted the Crown corporation the right to divert water from the Churchill to the Nelson, impound water on the Rat River and Southern Indian Lake, and operate the diversion — subject to requirements that include regulating the water levels and flows.

The plaintiffs allege Manitoba Hydro has permitted the water levels to dip below and above those requirements and failed to draw water out to minimize the adverse impacts on the lake’s residents and mitigate the effects of altered water levels and flows.

The Crown corporation and the province entered into multimillion-dollar agreements with the two community associations in 1984, 1992 and 1999. The lawsuit claims those agreements did not include the damages now sought, including damage that wasn’t foreseeable or contemplated at the time.

Hydro spokesman Bruce Owen said the Crown corporation would not comment as the matter is before the courts, noting it will file a statement of defence in “due course.”

erik.pindera@winnipegfreepress.com

Twitter: @erik_pindera