The Interlake Reserves Tribal Council and four of its member First Nations won an injunction application against the Province of Manitoba for failure to consult and accommodate Treaty and Aboriginal rights.
In early 2020, the Interlake Reserves Tribal Council (IRTC) along with Lake Manitoba First Nation, Little Saskatchewan First Nation, Dauphin River First Nation and Kinonjeoshtegon First Nation filed a lawsuit against the Manitoba government in a dispute regarding the Province’s failure to consult and accommodate Treaty and Aboriginal rights in relation to the Lake Manitoba-Lake St. Martin Outlet Channels project.
Recent flooding around Lake Manitoba and Lake St. Martin emphasized the need to improve water level regulation on the lakes to enhance flood protection to Indigenous and non-Indigenous communities. The outlet channels are designed to reduce the likelihood of flooding on both lakes and surrounding areas.
In 2019, the Manitoba Government proceeded to clear public land along the proposed right-of way before the channels project was approved through the province’s environmental assessment process. The province also proceeded on the construction of an all-season access road in relation to the channels project despite legal challenges from the IRTC and its member First Nations.
The environmental assessment and consultation process are critical to all government sanctioned infrastructure projects that occur on Treaty land because they help to drive recommendations to mitigate or avoid environmental impacts and impacts on Treaty and Aboriginal rights arising from the projects. The development measures outline the details and conditions included in any project authorization, which encompasses: routing, clearing, construction and timing of activities required to execute the project.
The IRTC applied for an injunction to halt the construction work on the access road and further clearing of the public land until the federal and provincial government completed the environmental assessments, the project was legally sanctioned, and until the duty to consult with the First Nations was honoured.
On August 20, 2020, the Manitoba Court of Queen’s Bench granted the plaintiffs’ motion to stop further work on the winter road upgrade and to stop any further work on the project to clear large areas of Crown land. Exceptions to the granted court order include:
- if there is a future flood where access to the Emergency Channel is required
- if field work and studies are required for the federal assessment process
Manitoba has to provide notice of this work and undertake with minimal disturbance.
The Province of Manitoba motioned to strike the plaintiffs’ claim but was dismissed by the Court on August 20. The injunction will remain in place until the underlying lawsuit against the province has been decided. The Court’s decision granting the injunction relied heavily on testimonials from citizens of the affected First Nations in concluding that the Province’s disregard for the Crown’s duty to consult could cause irreparable harm to those individuals’ Treaty rights. Justice Lanchberry of the Manitoba Court of Queen’s Bench explained that, “our shared Colonial history, the enactment of section 35 of the Constitution Act and Supreme Court of Canada decisions, confirms that monetary damages are insufficient when the issue of land-based rights are at stake.”
The granted injunction is significant in holding the Government of Manitoba accountable to the environmental assessment process and the Crown’s Constitutional duty to consult Treaty and Aboriginal rights.