Governments, Manitoba Hydro call for lawsuit alleging damage by hydroelectric project to be dismissed

The Lake Winnipeg Regulation project involves the Jenpeg control structure, seen in this undated image. (YouTube/Manitoba Hydro)

The provincial government, Attorney General of Canada and Manitoba Hydro are asking a court to dismiss a lawsuit by Berens River First Nation, which alleges decades-old hydroelectric operations on Lake Winnipeg caused “devastating impacts” on their reserve lands.

Berens River First Nation filed a statement of claim last June concerning the Lake Winnipeg Regulation (LWR) project, a Manitoba Hydro initiative in operation since 1976 that regulates the lake’s outflow to optimize power generation.

The First Nation—whose reserves are located on the shore of the lake—allege several “serious, ongoing impacts” that stem from the project, including diminished water quality, bank destabilization, flooding, and loss of traditional hunting, trapping and harvesting areas.

“The operation of the LWR project has caused or contributed to harms and damages suffered by (Berens River First Nation) and its members including nuisance, trespass, infringement, and unjustifiable breach of (Berens River First Nation)’s treaty rights,” reads the statement of claim filed in the Court of King’s Bench of Manitoba.

Berens River First Nation alleged that no comprehensive studies or examinations took place of the LWP project’s effect on the lake, the environment and its treaty rights.

However, all three defendants are calling for the lawsuit to be dismissed in separate statements of defence filed last Friday.

Manitoba Hydro acknowledges that an environmental assessment was not initially required but argues independent studies on the environmental and socioeconomic impacts from the project were conducted—which the provincial government also claims in its statement of defence.

“Hydro continues to undertake or support a range of environmental studies and monitoring on the lake,” reads the Crown corporation’s statement of defence.

Manitoba Hydro also claims the LWR project reduces shoreline flooding on the lake, which benefits all communities on the lake, including Berens River First Nation.

“Any flooding or water quality impacts or any other alleged damages occur in a state of nature and are not the responsibility of Hydro,” reads the court filing, which denies their treaty rights are sufficient grounds to claim trespass.

The province’s statement of defence also claims several regulations are in place to ensure the protection of water resources, aquatic ecosystems and human health.

The provincial government alleges the First Nation does not have standing to bring forward claims for individual damages on behalf of their members without a court order.

“Significant time has passed since much of the alleged tortious conduct, which has resulted in the loss of evidence, including adversely affecting the availability and recollection of witnesses. This has resulted in significant prejudice to Manitoba and its ability to defend this action,” reads the statement of defence.

The Attorney General of Canada’s statement of defence claims that any impacts to the First Nation from the LWR project is the “sole responsibility” of Manitoba Hydro or Manitoba.

All three defendants also allege the claim is barred pursuant to The Limitations Act.

Berens River First Nation is seeking an unspecified amount in damages and an injunction restraining operations of the LWR project, as well as a declaration that Manitoba Hydro and the province have “unjustifiably infringed” on its treaty rights.

The legal action also seeks multiple court orders, including an order that Manitoba Hydro and the province install monitoring technology on the lake near the First Nation’s reserve lands.

CTV News has reached out to Berens River First Nation for comment on the statements of defence and is awaiting a response.

None of the claims have been tested in court.