Berens River lawsuit over Hydro project filed too late: defendants

Manitoba Hydro and the provincial and federal governments have asked a Manitoba court to toss out a lawsuit launched by Berens River First Nation over a decades-old hydroelectric project it alleges has devastated the Lake Winnipeg environment and fishery.

The First Nation, about 275 kilometres northeast of Winnipeg on the eastern shore of the lake, filed its statement of claim in the Court of King’s Bench last June over the public utility’s Lake Winnipeg regulation project, which began operating in 1976.

The project manipulates water levels on Lake Winnipeg for power generation. It includes the Jenpeg generating station and diversion channels that increase the outflow of water from the lake into the Nelson River.

The First Nation alleges the project has worsened water quality, caused floods and erosion and affected traditional harvesting, trapping and hunting areas, as well as damaging the fish population and habitat.

In their statements of defence, Hydro and the two levels of government deny wrongdoing and say the lawsuit is barred under the provincial Limitations Act, which dictates time frames for when civil claims can be filed.

In its statement, Hydro denies the regulation of water levels has caused damage to the lake, arguing that any changes to water quality or flooding occur in a state of nature and aren’t the responsibility of the utility.

It says regulating the water levels reduces shoreline flooding to benefit all communities adjacent to it, including Berens River, and assists in generating hydro power, which supplies energy to all communities in Manitoba, including the plaintiff.

The First Nation is seeking an environmental assessment of the project and input into the decisions that affect the lake.

Before the lawsuit was filed, Berens River hadn’t challenged any of the licences and governmental authorizations issued to Hydro by the federal and provincial governments to operate the regulation project, the utility argues.

In its court papers, the Manitoba government says Berens River members and other Indigenous communities were given opportunities to participate in the final licensing process in the past decade-and-a-half, but Berens River did not participate.

The province granted Hydro an interim licence to operate the project in 1970. The public utility applied for a final licence in 2010, leading the Clean Environment Commission to hold public hearings about the effect of the project on the lake. The province granted a final licence in 2021, which expires in August.

The province said the process to potentially renew the licence will include consultation with Indigenous communities; it pointed to a public hearing held in Berens River in February 2025.

Hydro says no environmental assessment was required when the project was first authorized, but that it has continually undertaken or supported a range of environmental studies and monitoring projects, including as a function of its government licences.

The province also says studies have been conducted on the effects of the project that regulations are in place to protect water resources, ecosystems and health, in its statement of defence.

It says provincial officials continually monitor and take steps to improve the health of the lake via legislation and government programs.

It argues the First Nation does not have the proper legal standing to submit a claim for individual damages for its members, without a court order.

The federal government argues the regulation project is entirely within the province’s “sphere of activity.”

“The central issue in this action is whether Manitoba Hydro, and Manitoba’s authorization of (Lake Winnipeg regulation), caused or contributed to the impacts (Berens River) asserts,” reads the federal government’s court filing, arguing the claim against it should be dismissed.

The province filed a cross claim against the federal government in which it says if the court were to order the province to pay costs, they should be covered by the federal government.

erik.pindera@freepress.mb.ca