Tataskweyak Cree Nation’s challenge to the final licence for Manitoba’s Churchill River Diversion has been dismissed, with the court finding that the province adequately consulted the First Nation before authorizing the project to continue under its existing operating regime.
In Chief Doreen Spence et al. v. The Minister of Environment, Climate and Parks et al., 2026 MBKB 112, released August 12, 2026, Justice Chartier of Manitoba’s Court of King’s Bench dismissed the judicial-review application with costs. The reasons do not fix a costs amount.
The decision distinguishes the diversion’s acknowledged historical effects from new adverse effects that might arise from the particular licensing decision. It does not find that the project has caused no harm or decide the outcome of a separate licence-renewal application.
A longstanding project and contested consultation
The Churchill River Diversion redirects much of the Churchill River’s flow into the Nelson River system to supply downstream hydroelectric generating stations. It began operating in 1976 under an interim licence issued in 1973. Since 1986, an annually authorized Augmented Flow Program has allowed additional flows and different water-level limits.
Tataskweyak Cree Nation, whose reserves are at Split Lake, exercises Treaty 5 and Aboriginal rights in territory affected by the diversion. Its concerns included impacts on fishing, hunting, trapping, gathering and the transmission of traditional knowledge. The parties agreed the diversion had historically affected the Churchill and Nelson rivers, while disagreeing about the extent of those effects and whether the augmented flows added to them.
Manitoba Hydro requested a final licence in 2009. The province’s community-consultation process ran from 2009 to 2021 and involved 18 Indigenous communities. The minister issued the final licence on May 12, 2021, incorporating the existing operating regime, reducing the land covered by the licence and adding mitigation and monitoring requirements.
The First Nation argued that Manitoba had missed an opportunity to attach meaningful protections. It said the province never properly assessed the depth of consultation required, used shifting deadlines to reject proposed work plans and budgets, failed to answer important correspondence and did not engage in serious two-way discussion about accommodation measures.
Manitoba answered that the decision maintained existing operations, introduced no new adverse impacts and did not extend the licence’s term. It relied on its repeated efforts to engage the First Nation, existing compensation and mitigation agreements, and the additional measures adopted after consultation. Manitoba Hydro took no position on the issues raised in the amended judicial-review application and had not participated in the formal Crown consultation process.
Why the court found a lighter consultation duty
Both sides accepted that a duty to consult arose. Their disagreement concerned its depth and whether Manitoba had met it.
The judge explained that the duty’s content depends on the strength of the asserted rights and the seriousness of potential effects from the government action being considered. Whether the duty was engaged and its scope were reviewed for correctness; the adequacy of the consultation was reviewed for reasonableness.
The court recognized the First Nation’s strong treaty-rights claim. But it found that the final licence maintained the water regime operating since 1986 and that no new adverse impacts had been identified at the outset or during consultation. That supported a lighter consultation obligation: notice, relevant information and discussion of issues raised in response.
The judge distinguished that inquiry from redressing historical or continuing harm attributable to the original project. Earlier compensation and mitigation agreements provided relevant context for how those impacts were being addressed. The ruling did not treat the absence of new impacts from this decision as an absence of existing environmental concerns.
Work-plan disputes did not invalidate the process
The parties never agreed on a consultation work plan or budget. The court found that Manitoba tried to obtain the First Nation’s views, while the First Nation declined to engage for significant periods unless its proposed terms were accepted.
Justice Chartier found the province’s proposed process reasonable for the consultation required. It contemplated technical advice, community participation, a report identifying concerns and possible mitigation, and opportunities for feedback. Engaging with it would have allowed the First Nation to argue for additional time or funding.
The judge nevertheless identified imperfections. The provincial steering committee should preferably have responded to a 2019 work-plan proposal. Some earlier extensions could have been longer. Viewed in context and across the process as a whole, however, those shortcomings did not establish a breach.
The First Nation ultimately provided substantive submissions in September 2020. Manitoba incorporated them into a final summary of concerns presented to the minister. Although that revised summary was not shared with the First Nation before the decision, the court found it reasonable to conclude consultation in the circumstances, including the previous engagement efforts and absence of identified new impacts.
Environmental measures and the ruling’s limits
The judge found that Manitoba considered the First Nation’s concerns and adopted reasonable accommodation measures within the decision’s scope. These included broader monitoring involving Indigenous communities and traditional knowledge, shoreline-erosion measures, and studies directed at improving conditions for fish downstream of the Missi Falls Control Structure.
The First Nation argued that ecological-flow concerns required further consultation before the final licence issued. The judge accepted Manitoba’s use of a condition requiring further studies and did not require those studies to precede this licensing decision.
A separate dispute concerned how much discretion the minister had to change interim-licence terms under section 44 of the Water Power Regulation. The judge declined to decide that question because it had not been properly raised in the amended application and had received limited submissions. Comments supporting the minister’s interpretation were expressly offered without deciding that issue.
The application was dismissed because the court found Manitoba had discharged its constitutional consultation obligation. The reasons recorded that a separate renewal application, filed in July 2022, remained undecided at the time of judgment. They do not determine that renewal, award compensation for historical impacts or establish that every licence continuing an existing project requires only limited consultation.
