File No.

CI-24-01-

THE KING'S BENCH

Winnipeg Centre

BETWEEN:

MARY MAYTWAYASHING;
ROBERT MAYTWAYASHING;
EMERY STAGG;
TAYLOR GALVIN; and
SOUTHERN CHIEFS’ ORGANIZATION
Plaintiffs
- and -

THE GOVERNMENT OF MANITOBA and

MANITOBA HYDRO

Defendants

STATEMENT OF CLAIM

PUBLIC INTEREST LAW FIRST PEOPLES LAW LLP

CENTRE 6th Floor, 73 Water Street
100-87 Broadway Vancouver, BC V6B 1A1
Winnipeg, MB R3C 0R9

BYRON WILLIAMS KATE GUNN

JOËLLE PASTORA SALA CODY O’NEIL
Phone No. (204) 985-8533 Phone No. (604) 688-4272
Fax No. (204) 985-8544 Fax No. (604) 688-4282
[email protected] [email protected]
[email protected] [email protected]
 File No. CI 24-01-
THE KING'S BENCH
Winnipeg Centre

BETWEEN:

MARY MAYTWAYASHING;
ROBERT MAYTWAYASHING;
EMERY STAGG;
TAYLOR GALVIN; and
SOUTHERN CHIEFS’ ORGANIZATION
Plaintiffs
- and -

THE GOVERNMENT OF MANITOBA and

MANITOBA HYDRO

Defendants

STATEMENT OF CLAIM

TO THE DEFENDANT:

A LEGAL PROCEEDING HAS BEEN COMMENCED

AGAINST YOU by the plaintiff. The claim made against you is set
out in the following pages.

IF YOU WISH TO DEFEND THIS PROCEEDING, you or a

Manitoba lawyer acting for you must prepare a statement of defence
in Form 18A prescribed by the King's Bench Rules, serve it on the
plaintiff's lawyer or where the plaintiff does not have a lawyer, serve
it on the plaintiff, and file it in this court office, WITHIN TWENTY
DAYS after this statement of claim is served on you, if you are
served in Manitoba.
 If you are served in another province or territory of Canada or
in the United States of America, the period for serving and filing your
statement of defence is forty days. If you are served outside Canada
and the United States of America, the period is sixty days.

IF YOU FAIL TO DEFEND THIS PROCEEDING,

JUDGEMENT MAY BE GIVEN AGAINST YOU IN YOUR ABSENCE
AND WITHOUT FURTHER NOTICE TO YOU.

___________________ Issued by:_________________

Date Deputy Registrar

TO: Jim Koch

Counsel for the Respondent
The Government of Manitoba
Legal Services Branch
Manitoba Justice
730-405 Broadway
Winnipeg, MB R3C 3L6
[email protected]

AND TO: Joe Langan

Counsel for the Respondent
Manitoba Hydro
360 Portage Ave
Winnipeg MB R3C 2P4
[email protected]

2
 THE CLAIM

OVERVIEW

Weeniibiikiisagaygun (Lake Winnipeg) has a spirit, is sacred and is living.

First Nations Knowledge Keepers, land users and rights holders tell us that
Lake Winnipeg is suffering and she is sick. Western scientists agree. It is our
responsibility to speak on behalf of Lake Winnipeg as she is unable to speak
for herself. Her well-being is crucial to the health of current and future
generations. – Mary Maytwayashing

1. The Nibi Naa da maa geayuk, comprised of Mary Maytwayashing,

Robert Maytwayashing, Emery Stagg, Taylor Galvin and the Southern
Chiefs’ Organization (“SCO”), bring this action in accordance with their
responsibilities under sacred Anishinaabe laws and teachings to
ensure the protection and survival of Lake Winnipeg and the other
living entities which depend on her.

2. For almost half a century, Manitoba Hydro has operated the Lake
Winnipeg Regulation (“LWR”) project under The Water Power Act,
C.C.S.M c. W60 (the “Water Power Act”) and the Water Power
Regulation, M.R. 25/87 (the “Water Power Regulation”).

3. By artificially constraining water levels, fundamentally altering

seasonal variations of water levels and flows and materially increasing
the quantity of water flow, the LWR project has profound and
cascading impacts on the health of the Lake, surrounding watersheds,
wetlands and shorelines, and on other living beings, including plants,
fish, animals, and birds.

4. The LWR project has further resulted in severe and prolonged impacts
on the physical, psychological and spiritual health and wellbeing of the

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 Anishinaabeg of the Lake Winnipeg Basin who have always lived in
relationship with the Lake.

5. Despite these impacts, the LWR project has never been subject to an
environmental assessment.

6. Manitoba Hydro has now applied under the Water Power Act to extend
the term of its Final Licence for the LWR project (the “Renewal
Application”). If approved, the Renewal Application will allow
Manitoba Hydro to continue its commercial use of the LWR project
under its existing operating rules for up to 50 additional years,
exacerbating and prolonging the impacts of the project.

7. The health of the Lake is in crisis. It is critical that the determination of

the Renewal Application include a robust public process which is
informed by First Nations’ traditional and cultural knowledge and which
meaningfully considers the existing and future impacts of the LWR
project on the health of the Lake and surrounding area. Just as
critically, it must include an opportunity for the living entities affected
by the LWR project – including the Lake herself – to have a voice in
decisions about whether the Renewal Application is in the public
interest.

RELIEF SOUGHT

8. The Plaintiffs seek the following relief:

a. a declaration that Lake Winnipeg holds rights to life, liberty and

security of the person which are protected under s. 7 of the
Canadian Charter of Rights and Freedoms, Part
4
 1 of the Constitution Act, 1982, being Schedule B to the Canada
Act 1982 (UK), 1982, c 11 (the “Charter”);

b. a declaration under s. 24(1) of the Charter and/ or this Court’s

inherent jurisdiction that the licensing and commercial use of the
LWR project under the Water Power Act and the Water Power
Regulation infringes Lake Winnipeg’s s. 7 Charter rights in a
manner that cannot be saved under s. 1;

c. a declaration under s. 24(1) of the Charter and/ or this Court’s

inherent jurisdiction that the licensing and operation of the LWR
project under the Water Power Act and the Water Power
Regulation infringes the s. 7 Charter rights of Mary
Maytwayashing, Robert Maytwayashing, Emery Stagg and
Taylor Galvin (together, the “Individual Plaintiffs”), in a manner
that cannot be saved under s. 1;

d. a declaration under s. 24(1) of the Charter and/ or this Court’s

inherent jurisdiction that a public hearing is necessary to
determine whether the Renewal Application is in the public
interest, and if so, on what terms and conditions;

e. an order under s. 24(1) of the Charter in the nature of mandamus

directing the Minister of Environment and Climate Change (the
“Minister”) to order a public hearing under s. 46 of the Water
Power Regulation to determine whether the Renewal Application
is in the public interest, and if so, on what terms and conditions;

f. a declaration that Lake Winnipeg, as represented by the Nibi Naa

da maa geayuk, has a right to participate in any proceedings
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 relating to the Renewal Application and related relicensing
processes for the LWR project pursuant to the Water Power Act
and/ or the Environment Act, C.C.S.M. c. E125 (the
“Environment Act”);

g. costs of this action; and

h. such other relief as counsel may advise and this court may allow.

PARTIES

Weeniibiikiisagaygun’s voice has never been heard by Manitoba and

Manitoba Hydro. It is our responsibility to support and stand up for her. –
Robert Maytwayashing

The Plaintiffs

9. The Plaintiff, SCO, is an independent political organization which

represents 33 Anishinaabe and Dakota Nations, and more than 87,000
citizens, in what is now called southern Manitoba.

10. SCO members include descendants of the Anishinaabeg of the Lake

Winnipeg Basin who have always relied on and cared for Lake
Winnipeg in accordance with inherent Anishinaabe laws and
teachings, including Anishinaabe nibi inaakonigewin (Anishinaabe
Water Law).

11. SCO is mandated to protect, preserve, promote, and enhance its

members’ inherent rights, languages, customs and traditions, including
for the purposes of this action.

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12. SCO has a longstanding history of advocating on behalf of its member
Nations on issues relating to the protection of water in southern
Manitoba.

13. Relying on traditional protocols, SCO has carefully selected each of

the Individual Plaintiffs to join SCO in its efforts to protect the Lake.
Together, SCO and the Individual Plaintiffs are the Nibi Naa da maa
geayuk (the ones who speak for and protect the Lake).

14. Mary Maytwayashing and Robert Maytwayashing are Anishinaabe

Elders and Knowledge Keepers who are versed in sacred Anishinaabe
nibi (water) teachings, ceremonies and laws. Elder Robert and Elder
Mary hold responsibilities under Anishinaabe nibi inaakonigewin to
speak for nibi using their language, teachings, laws and dreams.

15. Elder Mary and Elder Robert are married and together have three adult
children and grandchildren. They are both members of the Lake
Manitoba First Nation. Both Elders are fluent in their language,
Anishinaabemowin, which is spiritual, sacred and gentle.

16. Elder Mary and Elder Robert are members of the Turtle Lodge National
Council of Elders and Knowledge Keepers. They are acknowledged
nationally and internationally for their nibi teachings.

17. Elder Mary (Zoongi Gabawi Ozawa Kinew Ikwe) is part of the Crane
clan and has an inherent responsibility as an Anishinaabekwe
(Anishinaabe woman) to speak for and protect nibi. She has shared
her knowledge about nibi with a wide variety of audiences including
provincial and federal ministers, municipal government

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 representatives, industry representatives, police officers, lawyers and
judges.

18. Elder Robert (Zoongi Gabowi Muskoo Mushkoday Biishikii) is part of

the Bear clan and carries a bundle on behalf of the people which
includes the responsibility of the pipe, the sweat lodge and other
ceremonies when requested or directed by spirit. Elder Robert has
participated in numerous nibi ceremonies with Elder Mary both
nationally and internationally, including in Israel and Tanzania.

19. Elder Mary and Elder Robert each spend significant time hunting,
fishing and gathering in and around Lake Manitoba and Lake
Winnipeg.

20. Emery Stagg is an Anishinaabe Elder from Dauphin River First Nation
who is fluent in Anishinaabemowin. Elder Emery has lived on and
relied upon Lake Winnipeg for most of his life just like his parents and
generations before them.

21. Elder Emery grew up next to a fish hatchery in Dauphin River First
Nation and comes from a family of commercial fishers. He has been
fishing on Lake Winnipeg his whole life. His family continues to engage
in commercial fishing on Lake Winnipeg.

22. Elder Emery has directly observed changes in the health of Lake
Winnipeg over time. Through the years, he has seen significant
negative changes in the health of the water as well as the health and
availability of the fish, muskrats and wetlands of Lake Winnipeg. He
and his family members now have to travel further from their usual
fishing area to find healthy fish and clean water.
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23. Taylor Galvin (Ozaawi Mashkode Bizhiki) is a member of Brokenhead
Ojibway Nation, which is located on the southeast shoreline of Lake
Winnipeg and a member of the Sturgeon clan.

24. Ms. Galvin is intimately aware of the power of nibi as a living being.
Her connection to Lake Winnipeg, including attending and leading nibi
ceremony, fasting near Lake Winnipeg, and spending time observing
the Lake, has been an integral part of her sobriety and healing journey.

25. As the Director of the Brokenhead Wetland Ecological Reserve and as

a land-based educator and community coordinator with the University
of Manitoba Environmental Conservation Lab, Ms. Galvin spends a
significant amount of time in and around Lake Winnipeg. She has
presented at a United Nations World Water Conference on issues
related to the Brokenhead Wetland Ecological Reserve, including in
relation to the health of Lake Winnipeg. She has also conducted nibi
water quality testing and medicine picking workshops, including in the
marshes surrounding Lake Winnipeg.

26. The Individual Plaintiffs have each demonstrated knowledge of and

commitment to the protection and wellbeing of Lake Winnipeg and
other waters in Manitoba.

27. The Individual Plaintiffs each hold deep familial, ancestral, spiritual and
cultural connections to Lake Winnipeg.

28. The Individual Plaintiffs’ ability to live and survive as Anishinaabeg is

inextricably linked to their ability to maintain their sacred relationship
with the Lake in accordance with Anishinaabe nibi inaakonigewin.

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29. The Nibi Naa da maa geayuk hold responsibilities to the Lake which
flow from Anishinaabe ancestral teachings, ceremonies and law. The
Nibi Naa da maa geayuk’ responsibilities include protecting the health
and wellbeing of the Lake, including by speaking on her behalf in
contexts where she is unable to speak for herself.

30. The Nibi Naa da maa geayuk bring this action collectively on behalf of
Lake Winnipeg. Elder Mary, Elder Robert, Elder Emery and Ms. Galvin
further bring this action on their own behalf as individuals.

31. This action is a reasonable and effective way to bring these issues to
the Court because:

a. the Lake is unable to speak on her own behalf for the purposes
of this action, or to otherwise protect her interests in respect of
the licensing and commercial use of the LWR project;

b. the Plaintiffs, individually and collectively, have demonstrated a

serious and genuine interest in the subject matter of this action;

c. the action raises a serious, justiciable issue;

d. the Plaintiffs have the support of counsel with expertise,

resources, and commitment to bring the action forward; and

e. it is unreasonable to expect that other individuals or similar

coalitions will bring an equivalent action at this time.

32. The Plaintiffs rely on relief under s. 24 of the Charter. In the alternative,
or in any event, this Court has the inherent jurisdiction to grant

10
 declaratory and other relief, to the extent such relief may be
unavailable under s. 24 of the Charter.

The Defendants

33. The Defendant, the Government of Manitoba (“Manitoba”), as

represented by the Minister, exercises regulatory authority over Lake
Winnipeg pursuant to provincial statutes and regulations, including,
inter alia, the Water Power Act, the Water Power Regulation and the
Environment Act.

34. The Defendant, Manitoba Hydro, is an electric power and natural gas
utility in the Province of Manitoba. Manitoba Hydro is a provincial
Crown Corporation and an agent of the Crown pursuant to s. 4(2) of
The Manitoba Hydro Act, C.C.S.M. c. H190.

35. Manitoba Hydro operates the LWR project pursuant to licences issued
by Manitoba under the Water Power Act and the Water Power
Regulation.

FACTS

Weeniibiikiisagaygun is our greatest teacher. We are part of her, and she is

part of us. We must listen to her as she carries a spirit and teachings. Sadly,
her spirit and health are slowly dissipating. – Taylor Galvin

Lake Winnipeg

36. The Anishinaabeg of the Lake Winnipeg basin and surrounding areas
have always lived in relationship with the Lake in accordance with
sacred Anishinaabe laws and teachings, including principles of
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 Anishinaabe nibi inaakonigewin which provide that Lake Winnipeg is
alive, has a spirit and exists in an interconnected relationship to other
entities and living beings. These principles and teachings guide and
inform the Nibi Naa da maa geayuk relationship with Lake Winnipeg
today.

37. Lake Winnipeg is the 11th largest freshwater lake in the world. She is
located in what is now central-southeastern Manitoba.

38. Lake Winnipeg extends 416 kilometres from north to south and covers
an area of approximately 23,750 km2. Lake Winnipeg has a watershed
of almost 1 million square kilometers, the largest watershed of any lake
in Canada.

39. More than 23,000 permanent residents live along the shores of Lake
Winnipeg. The southern shore of the Lake also supports several
seasonal cottage and beach communities, as well as agriculture,
commercial fishing and tourism industries.

40. A number of First Nations, including 9 SCO member Nations, are

located on the shores of Lake Winnipeg. An additional 6 SCO member
Nations are located along nearby tributaries of the Lake.

41. The wetlands of Lake Winnipeg are central to her health and well-
being. Lake Winnipeg has far more wetland per kilometre of shoreline
than the Laurentian Great Lakes. The Netley-Libau Marsh at the south
end of Lake Winnipeg is the largest coastal wetland in North America.

42. Lake Winnipeg’s wetlands, including the Netley-Libau Marsh, provide

essential health and environmental benefits including sequestration of

12
 nutrients and carbon, flood storage, sediment traps, shoreline erosion
buffers, habitat for plants, fish and staging waterfowls and hotspots for
diversity. The wetlands are critical for the exercise of First Nations’
inherent and Treaty rights and for activities such as hunting, fishing,
medicine picking, boating, birdwatching and ecotourism.

The LWR Project

43. Since 1976, water levels on Lake Winnipeg have been regulated by
Manitoba Hydro pursuant to the Water Power Act and Water Power
Regulation as part of the LWR project.

44. The LWR project infrastructure includes the Jenpeg control structure,
which regulates the outflow of the Lake through the west channel of
the Nelson River, a series of diversion channels which increase the
outflow capacity of the Lake, and a dam at the outlet of Kiskitto Lake.

45. The LWR project maximizes the storage and generation of

hydroelectric power by constraining the natural range of water levels
on Lake Winnipeg and by interrupting her natural flow pattern.

46. The LWR project artificially constrains the lower and upper levels of
Lake Winnipeg to support planning and optimization of the Manitoba
Hydro system including in low water years. The LWR project also
allows greater flow in winter than would naturally be the case, allowing
more water to flow to lower Nelson River generating stations at the
time of year when electricity use is highest. In many years, this results
in higher flows in winter than in summer, a reversal of the natural
seasonal pattern.

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47. As a result of the LWR project, Lake Winnipeg is one of the largest
hydroelectric power reservoirs in the world. The LWR project is critical
to Manitoba Hydro’s ability to generate approximately $3 billion in
annual revenue.

48. The LWR project has been in commercial use for 48 years. To date,
no environmental assessment process has been carried out in respect
of the LWR project.

The Interim Licence

49. In 1970, Manitoba issued an Interim Licence pursuant to the Water

Power Act and the Water Power Regulation authorizing Manitoba
Hydro to:

a. construct, operate, and maintain the LWR project, including

diversion channels, river channel excavations and gated control
structures; and

b. regulate the levels of Lake Winnipeg within prescribed levels for

the purpose of producing hydroelectrical power for industrial and
general purposes.

50. The Interim Licence authorized Manitoba to regulate the level of Lake
Winnipeg between a minimum of 711 feet and a maximum of 715 feet
above sea level (“ASL”). The Interim Licence expressly required
Manitoba Hydro to regulate the Lake to prevent water levels from
receding below 711 feet ASL.

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51. The Interim Licence further provided that Manitoba Hydro’s authority
to build and operate the LWR project was subject to the condition that
Manitoba Hydro divert, use and store water in a manner that did not
interfere with the maximum advantageous development of the water
power necessary for hydroelectric production.

52. In 1972, the Interim Licence was amended to make provision for a
single designated control structure at Jenpeg. On August 1, 1976, the
LWR Project was put into commercial use by Manitoba Hydro under
the Interim Licence as amended.

The Clean Environment Commission Report

53. In 2010, 34 years after the LWR project began operation, Manitoba
Hydro applied for a Final Licence under the Water Power Act and the
Water Power Regulation.

54. In 2011, Manitoba directed the Clean Environment Commission (the

“Commission”) to conduct a public hearing regarding Manitoba
Hydro`s performance under its Interim Licence.

55. In 2015, the Commission released a report in which it concluded that

Manitoba’s water-power licensing and regulatory regime for the LWR
project pursuant to the Water Power Act was out of step with modern
legislative, consultation and environmental standards.

56. The Commission further concluded that, in contrast to other

jurisdictions in Canada, Manitoba’s licensing and regulatory regime for
the LWR project:

15
 a. did not include a multi-stakeholder water management planning
process;

b. relied on licence conditions which lacked scientific rationale and

which had never been rigorously assessed or subject to public
planning processes;

c. allowed Manitoba Hydro to operate on a discretionary basis in

the absence of externally reviewed and approved conditions and
without public scrutiny or consideration of the broader public
interest;

d. lacked baseline environmental information or requirements for

new research to address existing information gaps; and

e. failed to adequately consider environmental protection and

climate change planning.

57. Manitoba Hydro representatives acknowledged, in the course of the

Commission’s process, that there were deficiencies in the current
licensing regime for the LWR project, as well as challenges in
assessing the impacts of increasing or decreasing Lake Winnipeg’s
operating range.

58. As expressly indicated in the Commission’s report, the public hearing

was not an environmental assessment of the LWR project under the
Environment Act. There was no environmental assessment
undertaken by Manitoba Hydro, nor was there an opportunity for
participants to provide independent evidence or to test evidence of
expert witnesses through cross-examination.

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59. The Commission recommended that Manitoba require future
relicensing of the LWR project under the Environment Act in a public
process overseen by a steering committee, and that the assessment
be informed by First Nations’ traditional and cultural knowledge.

The Final Licence

60. In May 2021, Manitoba issued the Final Licence authorizing Manitoba
Hydro to continue to operate the LWR project pursuant to the Water
Power Act until August 1, 2026.

61. Under the Final Licence, Manitoba Hydro retains the right to set
outflows as required for power production purposes along the Nelson
River when the lake level is between 711 ft and 715 ft ASL.

62. Like the Interim Licence, the Final Licence provides that Manitoba
Hydro’s authority to operate the LWR project is subject to the condition
that Manitoba Hydro divert, use and store water in a manner that does
not interfere with the maximum advantageous development of the
water power necessary for hydroelectric production.

63. Manitoba did not require a public hearing under the Water Power Act
or an environmental assessment under the Environment Act prior to
issuing the Final Licence.

64. At the time the Final Licence was issued, Manitoba indicated that it
intended to update the Environment Act, Water Power Act and the
Water Power Regulation. Manitoba further indicated that it would be
developing new guidelines for licence renewal requirements for
existing hydroelectric developments.
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65. To date, there have been no updates to the legislation, nor has
Manitoba issued further guidelines for licence renewal requirements.
The water power licensing and regulatory regime for the LWR project
under the Water Power Act and the Water Power Regulation remains
out of step with modern legislative, consultation and environmental
standards.

Health of Lake Winnipeg

Lake Winnipeg provides me with sustenance, income, spiritual connection

and pleasure. Sadly, I can see her dying from my home and from my boat. I
see algae, including brown algae which is the worst color. When that algae
moves in, fish and other species can’t survive anymore because there’s no
more life. – Emery Stagg

Weeniibiikiisagaygun is the life source and veins of Mother Earth. She is

hurting. Because everything is interconnected, when Weeniibiikiisagaygun
hurts, so too do all the living beings who rely on her. The wetlands are the
kidneys of Mother Earth as they clean and filter the nibi. Without healthy
wetlands, Weeniibiikiisagaygun is unable to clean herself. It is hard to watch
the Lake hurt so much. – Taylor Galvin

66. The Nibi Naa da maa geayuk understand, based on sacred

Anishinaabe teachings, ceremonies and law, that Lake Winnipeg is a
living entity, and that she has the capacity to give and sustain life, and
to suffer pain and illness.

67. The Nibi Naa da maa geayuk further understand that natural water
flow is crucial to Lake Winnipeg’s integrity, health and spirit, and that
the Lake must be able to flow freely in order to live, heal and sustain
the other beings that rely on her. When the natural flow of water in
Lake Winnipeg is interrupted, she is unable to go through her natural

18
 cleansing cycle and becomes stagnant and struggles to sustain other
beings like animals, birds, fish, plants and people.

68. The Nibi Naa da maa geayuk have observed significant changes to
the quality, colour and smell of the nibi since the LWR project came
into operation.

69. Fish species have declined, disappeared or migrated to other

locations. Others have become sick and inedible. Wildlife and bird
populations which rely on the Lake’s marshes and wetlands including
muskrat, beavers, duck, geese, eagles and gulls, have also declined.

70. Foods and traditional medicines, such as weekay, bulrush, cattail,

sturgeon and wild rice are becoming harder to access.

71. The Nibi Naa da maa geayuk have observed that more people in their
communities are sick now that they are unable to access traditional
foods and medicines from in and around the Lake.

72. Algae blooms and e-coli levels have increased throughout the Lake,
as well as the presence of harmful invasive species, such as zebra
mussels and spiny water fleas. The Nibi Naa da maa geayuk have
heard about and observed the negative consequences of e-coli levels
and invasive species on water quality in Lake Winnipeg. In
Anishinaabemowin, the Nibi Naa da maa geayuk refer to the water in
Lake Winnipeg as moowaakamiim (the water is full of feces) or
wiinaagamin (the water is polluted, dirty and full of garbage).

73. As a result of the artificial regulation of the Lake and its poor water
quality, the Nibi Naa da maa geayuk are no longer able to rely on

19
 certain areas in and around Lake Winnipeg to fish or to harvest food
and traditional medicines in accordance with Anishinaabe nibi
inaakonigewin and other Anishinaabe practices.

74. The natural flow of the Lake has changed. The Nibi Naa da maa
geayuk cannot rely on their traditional knowledge and teachings about
water patterns to keep them safe when they go out on the Lake to fish
or carry out other cultural practices.

75. The changes to the natural flow of the Lake have interfered with the
sacred relationship between the Nibi Naa da maa geayuk and the
Lake and made it more difficult for them to maintain their identity as
Anishinaabeg.

76. The Nibi Naa da maa geayuk describe the Lake’s current state as
being so sick that she is dying.

77. The Lake’s declining health has direct negative impacts on the health
of the Nibi Naa da maa geayuk. This includes negative impacts on the
Nibi Naa da maa geayuk’ spiritual and cultural health and wellbeing.

78. The Nibi Naa da maa geayuk’ observations and lived experience
regarding the health of the Lake is supported by western science.

79. Since 2005, and in particular since 2015, a developing body of

western scientific insight and research has linked the LWR project to
the degradation of the wetlands, eutrophication of the Lake and the
decline of wildlife species.

80. Habitat degradation of Lake Winnipeg’s wetlands has been

exacerbated by the LWR project’s constraints on Lake Winnipeg
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 levels which have artificially limited the duration and number of the
low water periods necessary to maintain emergent wetland vegetation
communities. Just as fundamentally, the current commercial use for
the LWR project impairs the ability of the Lake to heal and regenerate
her wetlands through the periodic reduction of Lake Winnipeg water
levels to restore emergent vegetation.

81. The marked decline of wetlands including the Netley-Libau Marsh has
been tied to the reduced ability of the marsh to sequester nutrients
that otherwise flow into the Lake. Wetlands like the Netley-Libau
Marsh can no longer fulfill their primary function: to clean and filter the
water going into Lake Winnipeg from the surrounding watershed.
Netley-Libau Marsh is no longer behaving like a healthy, functional
marsh.

82. Manitoba Hydro’s utilization of the LWR project to draw down water
levels of Lake Winnipeg in the winter also has been linked to the
decline of species such as muskrat.

83. The combined effects of activities related to the LWR project pose
fundamental challenges to the maintenance of a healthy, functioning
ecosystem in and around Lake Winnipeg. This challenge is made
greater by a changing climate as well as by damaging human
activities upstream of Lake Winnipeg.

The Renewal Application

We don't have 50 years. We need to protect and preserve what is here now.
The earth is the original mother to all of humanity. We need her. This is about
loving, preserving and taking care of the land and water. Because water is

21
life, the land needs our lakes to be clean and healthy to take care of us and
sustain us. Human activities are interrupting the natural ways and the ability
of the Lake to replenish herself. Because everything is interconnected and
because we love our future generations, we need to look at this very
seriously. - Mary Maytwayashing

84. On July 26, 2022, Manitoba Hydro submitted the Renewal Application
pursuant to s. 46(1) of the Water Power Regulation for an extension
of its rights under the Final Licence in respect of the commercial use
of the LWR project.

85. Pursuant to ss. 46(3) and 46(4) of the Water Power Regulation, on
application by a licensee for a renewal of a Final Licence, and after
such public hearing as the Minister considers necessary, the Minister
may either renew the Final Licence for a term of up to 50 years, or
issue a notice of termination setting out the date on which the rights
of the licensee shall cease.

86. To date, the Minister has not ordered a public hearing with respect to
the Renewal Application.

87. The Nibi Naa da maa geayuk know that Lake Winnipeg is sick, and
that other living beings that rely on the Lake, including the marshes,
muskrats and fish, are suffering. They also know that the Renewal
Application poses a grave risk to the future life and health of the Lake
and other beings who depend on her for survival.

LEGAL BASIS

Weeniibiikiisagaygun has been showing us and telling us that she’s sick for
a while already. Will we continue as a society to ignore her pleas, or will we
finally heed her cries and act accordingly? Her future and all that depend on
22
her, will align with what we decide to do next. – Robert Maytwayashing

Lake Winnipeg holds rights under s. 7 of the Charter

88. Under s. 7 of the Charter, everyone has the right to life, liberty and
security of the person and the right not to be deprived thereof except
in accordance with the principles of fundamental justice.

89. Lake Winnipeg is a living entity with her own spirit.

90. First Nations Knowledge Keepers and western scientific experts have
repeatedly raised concerns that the Lake is at risk of death.

91. Lake Winnipeg is entitled to presumptive membership in the class of

“everyone” who is entitled to benefit from the protections set out under
s. 7 of the Charter.

92. In the alternative, Lake Winnipeg is entitled to presumptive

membership in the class of “everyone” who is entitled to benefit from
the protections set out under s. 7 of the Charter for the purpose of
assessing the substantive Charter claim at issue in this action.

The LWR project violates Lake Winnipeg’s s. 7 Charter rights

93. The licensing and commercial use of the LWR project under the Water
Power Act and Water Power Regulation poses an immediate, ongoing
and existential threat to the survival, wellbeing and ecological integrity
of the Lake and to the living entities which depend on her for survival.

94. The licensing and commercial use of the LWR project violates the
Lake’s s. 7 Charter rights by:

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 a. artificially constraining water levels, fundamentally altering
seasonal variations of water levels, materially increasing the
quantity of water flows and otherwise obstructing the Lake’s
natural flow, thereby depriving the Lake of her right to liberty;

b. causing or contributing to severe physical and environmental

impacts, including the loss of critical wetlands and extreme
eutrophication, thereby depriving the Lake of her right to life; and

c. exposing the Lake to increased risk of death, illness or disease,

including by interfering with and damaging the Lake’s ability to
heal herself, thereby depriving the Lake of her right to security.

95. The violations of the Lake’s s. 7 rights are not in accordance with the
principles of fundamental justice and cannot be justified pursuant to
s. 1 of the Charter.

The LWR project violates the Individual Plaintiffs’ s. 7 Charter rights

96. Each of the Individual Plaintiffs holds rights to life, liberty and security
of the person under s. 7 of the Charter which are connected to and
dependent on the health of the Lake.

97. The licensing and commercial use of the LWR project violates the
Individual Plaintiffs’ s. 7 Charter rights by:

a. interfering with the Individual Plaintiffs’ ability to live

harmoniously in relationship with Lake Winnipeg in accordance
with Anishinaabe laws and teachings, thereby depriving the
Individual Plaintiffs of their right to life;

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 b. undermining, or seriously compromising, the Individual Plaintiffs’
ability to live and survive as Anishinaabeg and to maintain their
traditions, fulfil their sacred obligations as water protectors and
practice their culture and way of life, thereby depriving the
Individual Plaintiffs of their right to liberty; and

c. causing and contributing to severe harm to the health and

ecological integrity of the Lake and other living entities which are
essential for the Individual Plaintiffs’ physical, psychological and
spiritual health, thereby depriving the Individual Plaintiffs of their
right to security.

98. The violations of the Individual Plaintiffs’ s. 7 rights are not in

accordance with the principles of fundamental justice and cannot be
justified pursuant to s. 1 of the Charter.

A public hearing is necessary to determine whether the Renewal

Application is in the public interest

There are so many decisions about the Lake that are done without our input.
Nobody comes to ask us what we think about issues which directly affect us.
Our voices need to be heard. - Emery Stagg

99. Manitoba cannot be trusted to protect the rights of Lake Winnipeg or

the rights of the Plaintiffs. The voice of Lake Winnipeg has never been
heard in an environmental assessment of the effects of the LWR
project. Manitoba has known since 2015 that its licensing and
regulatory regime under the Water Power Act is out of step with
modern legislative, consultation and environmental standards.

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100. The commercial use of the LWR project has had significant,
prolonged adverse effects on the environment, including the health
and ecological integrity of Lake Winnipeg.

101. New evidence exists, based on both First Nations’ cultural and
traditional knowledge and western scientific literature, which confirms
the significant, ongoing impacts of the LWR project.

102. The LWR project has never been subject to an environmental

assessment under the Environment Act. The full extent of the impacts
of the LWR project on the health of Lake Winnipeg and the living
entities which depend on the Lake have never been fully assessed.

103. The renewal of the Final Licence as contemplated under the Water
Power Act and Water Power Regulation will allow Manitoba Hydro to
continue its commercial use of the LWR project under its current
operating rules, and in turn, materially increase and prolong the
existing and ongoing impacts on the health, wellbeing and autonomy
of the Lake and on each of the Individual Plaintiffs.

104. The Minister has discretion, pursuant to s. 46(3) of the Water Power
Regulation, to order a public hearing to determine whether the
Renewal Application is in the public interest, and if so, on what terms
and conditions.

105. The Plaintiffs therefore seek the relief described in paragraph 8

herein.

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AUTHORITIES

106. The Plaintiffs plead and rely on:

(a) Canadian Charter of Rights and Freedoms, Part I of the
Constitution Act, 1982, being Schedule B to the Canada Act
(UK), 1982, c. 11.
(b) The Environment Act, CCSM c E125;
(c) The Manitoba Hydro Act, CCSM c H190;
(d) The Path to Reconciliation Act, CCSM c R30.5;
(e) The Water Power Act, CCSM c W60;
(f) The Water Power Regulation, MR 25/88R;
(g) United Nations Declaration on the Rights of Indigenous Peoples,
UNGA, 61st Sess, UN Doc. A/61/295; and,
(h) such other legislation or regulation as may apply.

DATED: __________, 2024.

PUBLIC INTEREST LAW CENTRE
100-287 Broadway
Winnipeg, MB
R3C 0R9

BYRON WILLIAMS
JOËLLE PASTORA SALA

FIRST PEOPLES LAW LLP

6th Floor, 73 Water Street
Vancouver, BC V6B 1A1

KATE GUNN
CODY O’NEIL

Lawyers for the Plaintiffs

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