Manitoba First Nations win lawsuit to stop province from continuing flood channel work without consent

A number of First Nations have won an injunction to prevent the Manitoba government from continuing construction on an access road and other work related to a proposed flood outlet near their communities.

Judge sided with First Nations that province had not adequately consulted with them

The province has described the planned Lake Manitoba and Lake St. Martin flood channels as vital to flood mitigation measures. (Province of Manitoba)

Four Manitoba First Nations have won an injunction to stop the province from continuing construction on an access road and other work related to a proposed flood outlet near their communities.

The province of Manitoba caused irreparable harm by proceeding with work on a proposed flood control management system in the Interlake area last year, said Justice Sheldon Lanchbery of Manitoba's Court of Queen's Bench in a decision last week.

The project, if approved, will direct flood waters from Lake Manitoba through Lake St. Martin and into Lake Winnipeg via two outlet channels. It proposes a 24-kilovolt transmission line and will require an 80-kilometre access road and other related infrastructure.

The province has described the project as a vital tool to prevent flooding in the Interlake region. 

In a letter sent to government ministers in 2019, four First Nations said they discovered a 23-kilometre route in the Interlake that had been cleared in preparation for a channel from Lake St. Martin to Lake Winnipeg — but the communities hadn't been informed by the government and weren't aware if necessary approvals were obtained.

They also argued that the province could be violating environmental regulations by proceeding with preliminary work on the Lake St. Martin outlet.

A lawsuit filed this spring by the Interlake Reserves Tribal Council and affected First Nations — Lake Manitoba First Nation, Little Saskatchewan First Nation, Dauphin River First Nation and Kinonjeoshtegon First Nation — aimed to stop drilling and clearing work for the project and the access road unless/until the federal and provincial environmental assessments are done and the project is approved. 

In their lawsuit, the First Nations said they have significant concerns that the project will result in flooding and destruction of their land and infrastructure, drinking water, and negatively impact their members who rely on commercial fishing to make a living. 

Not properly consulted 

The First Nations argued that the province had failed to adequately consult them and had not properly accommodated their treaty and land-based rights by issuing permits for the work without notifying them, according to court documents. 

In response, the province argued that the clearing and drilling work was minimal and was reasonable in order to complete environmental impact studies, which is necessary to get the federal government's approval for the project to move forward. 

In his decision, Justice Sheldon Lanchbery sided with the First Nations, saying the province failed to explain their lack of consultation.

However, Lanchbery said the province may continue performing testing or exploratory work as necessary in order to satisfy environmental regulations, so long as notice is provided to the First Nations and any disturbance is limited. 

Infrastructure Minister Ron Schuler said via email the province is reviewing the decision and strives to work with Manitoba's First Nations partners, but could not comment further.