Quashed deal between MMF and Hydro a legal minefield, says prof

A professor and expert on Indigenous legal rights says a now cancelled agreement between Manitoba Hydro and the Manitoba Métis Federation on future projects is filled with legal complexities that could have created problems for the utility.

The deal between Hydro and the MMF was killed last week by Premier Brian Pallister's cabinet. Pallister cited the agreement with the MMF as the reason nine out of 10 board members quit. 

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Former board chair Sandy Riley says that is "untrue." Riley, with the support of all the resigning members, maintains Pallister refused to meet to discuss "serious policy issues facing the corporation," and says the premier had months to weigh in on the agreement, but didn't.

Dwight Newman, a professor of law at the University of Saskatchewan, has published several books and nearly a hundred articles on the legal aspects of Indigenous rights and claims.

Newman says court rulings have established some rights for Métis people, or at least the possibility they exist. 

In 2016, the Supreme Court of Canada ruled the country's 600,000 Métis have many of the same rights as First Nations individuals, including the right to be consulted on Crown activities that may affect their rights or interests.

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That, he says "gives rise to the duty to consult" [with the Métis] and could be raised in the future as Hydro plans projects across the province.

Newman says it's common for companies in Canada to negotiate around those kind of "uncertainties" in situations involving Indigenous rights.

But Newman says the Supreme Court has not ruled infringing on those rights comes with a cash settlement, as was offered by Hydro to the MMF.

"None of those decisions directs the payment of financial compensation, but in the case of an infringement of a right, financial compensation is sometimes appropriate," Newman said.

The existing rulings leave it open for both sides to negotiate a "win-win arrangement that deals with impacts on rights," Newman told CBC News.

According to Newman, because the Métis never entered into treaties with the government (as First Nations communities in Manitoba or Saskatchewan did), there is a lot more uncertainty about what the scope of those rights might entail.

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Newman says Manitoba Hydro's 2014 agreement with the MMF, called Turning the Page, is similar to what private companies do across Canada when dealing with rights-holders.

The agreement the Pallister government turned down last week would have triggered a further $67.5 million in payments stretching over 50 years and would have guaranteed the MMF's support for Hydro projects for decades.

"It is very common today to negotiate what's called an impact benefit agreement with an Aboriginal community that could hold consultation rights and could affect that private business's projects in the future," Newman said.

The Turning the Page agreement already has Hydro paying the Métis Federation more than $1 million annually.

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Financial settlements, Newman said, are often one of the terms of those agreements. In return the community will support the company's projects in regulatory hearings and approvals.

Newman says this deal is "somewhat unusual" in that it reaches far into the future. The agreement Hydro's board approved with the MMF extends out 50 years.

"It's not necessarily common to have deals that reach 50 years over a variety of different projects," Newman says.

Newman also says the deal is unusual because it was entered into with the Manitoba Métis Federation. 

Companies, he says, need clarity that each community affected is on board with the agreement.

Future means uncertainty

Newman says unlike agreements with specific First Nations, which directly negotiate on behalf of the community, an agreement with the MMF could leave the door open to uncertainty.

"Whether the Manitoba Métis Federation commits to supporting a project or not might not guarantee that no Métis community challenges things down the road," Newman said.

Premier Brian Pallister's cabinet called off the agreement with the MMF last week. Pallister said he was concerned about the precedent the deal set for other Crowns and the government.

Pallister also expressed concern the agreement is so far-reaching it would make settlements for members of the Métis community years into the future.

"Which would take away the rights of children yet unborn — Métis children, for example in the Lake Manitoba area, to disagree with a proposal some 20 years hence," Pallister said.

Private companies, not Crowns

Newman also acknowledges many of the forward-looking agreements have been signed by private companies. Manitoba Hydro, being a Crown corporation, is not.

"There aren't just simple business calculations at play ... there are business factors that are present but there are also governmental factors that are present and a Crown corporations has a more complex role than does a private business," he said.

Riley told media last week the agreement made sense as long-term savings would come due to sidestepping legal challenges and paying out compensation. Riley also said it made sense in light of recent court rulings that have supported ​Métis rights.

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Manitoba Métis Federation president David Chartrand vowed to see the government in court.

"The days of the Crown being able to deny Métis rights, deceive us and willfully break promises made to us Indigenous people — without legal consequences — are over," Chartrand told CBC News.