Compliance – Conditions
In this decision, the CER found that Manitoba Hydro complied with Conditions 3 and 15 of the Certificate of Public Convenience and Necessity EC-059 permitting Manitoba Hydro to operate the Project (the “Certificate”). The CER found that, because Manitoba Hydro demonstrated compliance with the Certificate, there is no basis to grant the relief sought by the Manitoba Métis First Nation (“MMF”).
The final Condition 3 required Manitoba Hydro implement all policies, practices, mitigation measures, recommendations, and procedures for the protection of the environment and promotion of safety referred to in its application, or as otherwise agreed to in its related submissions as well as commitments made to Indigenous groups through its project application or otherwise on the record of EH-001-2017.
The final Condition 15 required Manitoba Hydro file with the NEB and post on its website, at least thirty days prior to commencing construction, a commitments tracking table listing all commitments made in its application, including all commitments made to Indigenous communities, and otherwise agreed to during questioning or in its related submissions in the NEB’s EH-001-2017 proceeding, as well as commitments from the Clean Environment Commission hearing process that are of federal interest.
MMF and Manitoba Hydro Submissions
In its 23 July 2019 letter, the MMF submitted that it and Manitoba Hydro negotiated a series of documents, including:
Kwaysh-kin-na-mihk la paazh Agreement/Turning the Page Agreement (“TPA”);
a contract, consisting of a workplan and contribution agreement and leading to a Métis Traditional Knowledge and Land Use Study (the “Contract”); and
the July 2017 Agreement/Major Agreed Points (“MAP”), based on the TPA, and the Contract, as well as addressing documented impacts of the Project on Aboriginal Rights of Métis.
The TPA, Contract and MAP is collectively referred to as the “MAP Documents”.
The MMF asserted that Manitoba Hydro:
was breaching Condition 3 by refusing to acknowledge, honour and implement the MAP, as a clear commitment to the MMF that falls within the scope of Condition 3;
failed to perform Step 6 mitigation measures in the Contract, including meeting to find alternatives ways to address impacts if the Contract is not implemented;
failed to include the MAP Documents, specifically the MAP and the Contract, as commitments in the Commitment Tracking Table required to be filed pursuant to Condition 15; and
omitted a key component of its commitment to the MMF for 10 percent Métis construction content in the Project.
The MMF requested ensuring that Manitoba Hydro complies and fulfills Conditions 3 and 15.
Submissions Filed Outside the CER Established Process
The CER considered submissions made by both parties to consider that processes to evaluate condition compliance are set on a case-by-case basis and should allow for fulsome evaluation of potential non-compliance issues. In the CER’s view, the opportunities for participation afforded to both the MMF and Manitoba Hydro were appropriate in the circumstances.
Scope of Documents in Dispute
The CER noted that what was in dispute was whether the MAP Documents, and particularly the MAP itself, were commitments within the meaning of Condition 3 of the Certificate. The CER needed to consider if these are commitments and therefore needed to appear in the Commitments Tracking Table required by Condition 15.
The CER considered whether Conditions 3 and 15 apply to the MAP Documents in their entirety, but not where certain element related to the Contract, are commitments made by Manitoba Hydro, within the meaning of Condition 3.
Reasons for the Commission Decision that the Map Documents are not a Commitment Pursuant to Conditions 3 and 15 of Certificate EC-059
The CER found that the MAP Documents are not a commitment within the meaning of Condition 3. As a result, Manitoba Hydro is not required to include any of the MAP Documents in the Commitments Tracking Table under Condition 15.
Commitments Made by Manitoba Hydro on the Record of the EH-001-2017
The CER noted, that, to find that the MAP Documents must be implemented by Manitoba Hydro pursuant to this Project approval, there must be persuasive evidence that the MAP Documents were a commitment made by Manitoba Hydro through its application or otherwise on the record before the NEB in the EH-001-2017 proceeding.
The CER examined the application and the relevant portions of the record from EH-001-2017 and noted that Manitoba Hydro did not record or offer any commitment to implement the MAP Documents. The CER noted that Manitoba Hydro took steps to record its position that the Map Documents, and the MAP itself, were neither binding nor part of its application before the NEB.
The CER understood the MMF submission to mean that the inclusion of the MAP in the information request response means that the MAP Documents are a commitment made by Manitoba Hydro in EH-001-2017. This interpretation by MMF is not supported by an overall plain reading of Condition 3. The CER viewed that, pursuant a plain reading of Condition 3 only Manitoba Hydro could make a commitment on behalf of itself.
Condition 15 requires Manitoba Hydro to submit to the CER, and update, a commitment tracking table that includes “all commitments made in its application, including all commitments made to Indigenous communities, and otherwise agreed to during questioning or in its related submissions in the NEB’s EH-001-2017 proceeding”. Condition 15 is intended to enhance transparency regarding Manitoba Hydro’s performance of commitments but did not add substantive obligations that Manitoba Hydro is required to fulfill. Regarding Condition 15, the CER noted that Manitoba Hydro has not listed the MAP Documents as a commitment to be tracked.
Legal Proceedings Commenced by the MMF in Relation to the MAP
The dispute between the MMF and Manitoba Hydro regarding the MAP Documents and other agreements entered into by Manitoba Hydro with Indigenous peoples lead to litigation before the Manitoba Court of Queen’s Bench, in relation to which the NEB received submissions. In the EH-001-2017 hearing, the NEB heard submissions related to the legality of these agreements. Manitoba Hydro submitted that the NEB could not address the legality of the agreements between Manitoba Hydro the MMF and other Indigenous peoples, which was already a matter before the Manitoba Court of Queen’s Bench. The NEB agreed with that position. The CER adopted that ruling by the NEB and expressly refrained from exploring the enforceability or legality of these MAP Documents and other agreements.
The CER decided that the MAP Documents are not a commitment under Condition 3 and that they need not be listed as a commitment in the Commitment Tracking Table pursuant to Condition 15. The Commission found that the matter related to the percentage of construction tenders offered to Métis communities has been fully answered by Manitoba Hydro’s update to its Commitment Tracking Table.