'Agreement' or 'proposal'? War of words erupts over MMF deal with Hydro

The legal future of the deal brokered between Manitoba Hydro and the Manitoba Metis Federation by the former board could hinge on a single word. One side calls the deal a "proposal" while the other insists it's an "agreement."

Referred to as 'agreement' in government directive obtained by CBC

Crown Services Minister Cliff Cullen says they've agreed to a 'reset.' (CBC News)

In describing the deal between the Manitoba Metis Federation and Hydro, the Progressive Conservative government is particular about the word it prefers — and the legal case could hinge on that choice. 

In March, nearly the entire board of Manitoba Hydro resigned. Premier Brian Pallister said it was because his government wouldn't agree to the $67.5 million-dollar deal the board approved with the Metis Federation over the organization's support for future Hydro projects. 

When talking about the deal hammered out between the two parties, "proposal" is what Premier Brian Pallister and his ministers have said. But in formal communication about the matter another word gets used: "agreement."

The Metis Federation's legal team says there is serious significance to the choice of the word "agreement" if it appears in government letters to its crowns or in orders-in-council.

An order-in-council is a legal directive issued by the cabinet or one of its committees. 

"The [order-in-council] says do not proceed with the agreement with the Manitoba Metis Federation at this time," said Metis Federation lawyer Jason Madden.

"That's quite different than, oh, this was a proposal … it says agreement. So unless someone is going to go Wite-Out an order-in-council and say in court later on, oh, there is no agreement, your honour." 

On Friday, when asked to characterize the deal, Crown Services Minister Cliff Cullen said his government "has always characterized that as a proposal."

Cullen also said no directives have been issued to the executive or new board of Hydro.

It is not accurate to call the proposal from Hydro and MMF an agreement, and we do not believe it is legally binding.- Crown Services Minister Cliff Cullen

"No, there has been no directive issued yet," Cullen told reporters.

However, CBC News has obtained a letter, written by Cullen and sent to the new board chair of Hydro, Marina James, on March 23, 2018 — the same day James and four new members of the Hydro board were announced — which appears to refute these two claims. 

In an attachment to the letter, under the sub-heading "directive," the board "is directed to not proceed with the agreement." The deal is referred to as an "agreement" throughout.

Later Friday, a spokesperson for the minister sent an email to CBC News saying there was a "misunderstanding" in Cullen's answer and offered clarification.
Minister Cliff Cullen insists it's not an agreement, but order-in-council suggests otherwise. 2:15

"When asked today, I thought the question was related to if the new board had been provided new direction as it related to Indigenous engagement, and not specific to the actual directive," Cullen wrote.

In the email Cullen also reiterated his government's choice of the word "proposal" to characterize the deal with the Metis Federation.

"It is not accurate to call the proposal from Hydro and MMF an agreement, and we do not believe it is legally binding," Cullen wrote. 

Reset the relationship

Cullen spoke to the media Friday after a closed-door meeting between himself and MMF President David Chartrand. The two have been at odds ever since the deal was scuttled in the wake of the previous board's resignation. Both parties seemed optimistic after the meeting. 

"Mr. Cullen has asked for a couple of weeks to reset the button. He'll be meeting with Hydro to solve this issue and find a way to go back to cabinet to find a point where this matter can be resolved," Chartrand said.

Cullen agreed the word "reset" was appropriate, though he would not speculate on how the government would go about reworking the agreement the MMF has with Hydro.

Cullen referred to the Turning the Page agreement, already established between the MMF and Hydro, as a framework for discussions over the next couple of weeks that all sides would work under.

"There is a dispute mechanism in there and we want to make sure we follow those rules within that agreement," Cullen said.

MMF president David Chartrand has vowed to take the government to court if it reneges on the agreement.

About the Author

Sean Kavanagh

Provincial Affairs Reporter

Born and raised in Winnipeg, Sean has had a chance to live in some of Canada's other beautiful places (Whistler, B.C., and Lake of the Woods, Ont.) as well as in Europe and the United States. In more than a decade of reporting, Sean has covered some of the seminal events in Manitoba, from floods to elections, including a stint as the civic affairs reporter responsible for city hall.