4208 1 MANITOBA CLEAN ENVIRONMENT COMMISSION 2 3 VERBATIM TRANSCRIPT 4 Volume 18 5 6 Including List of Participants 7 8 9 10 Hearing 11 12 Wuskwatim Generation and Transmission Project 13 14 Presiding: 15 Gerard Lecuyer, Chair 16 Kathi Kinew 17 Harvey Nepinak 18 Robert Mayer 19 Terry Sargeant 20 21 Thursday, April 8, 2004 22 Radisson Hotel 23 288 Portage Avenue 24 Winnipeg, Manitoba 25 4209 1 LIST OF PARTICIPANTS 2 3 Clean Environment Commission: 4 Gerard Lecuyer Chairman 5 Terry Sargeant Member 6 Harvey Nepinak Member 7 Kathi Avery Kinew Member 8 Doug Abra Counsel to Commission 9 Rory Grewar Staff 10 CEC Advisors: 11 Mel Falk 12 Dave Farlinger 13 Jack Scriven 14 Jim Sandison 15 Jean McClellan 16 Brent McLean 17 Kyla Gibson 18 19 Nisichawayasihk Cree Nation: 20 Chief Jerry Primrose 21 Elvis Thomas 22 Campbell MacInnes 23 Valerie Matthews Lemieux 24 25 4210 1 LIST OF PARTICIPANTS 2 3 Manitoba Conservation: 4 Larry Strachan 5 6 Manitoba Hydro/NCN: 7 Doug Bedford, Counsel 8 Bob Adkins, Counsel 9 Marvin Shaffer 10 Ed Wojczynski 11 Ken Adams 12 Carolyn Wray 13 Ron Mazur 14 Lloyd Kuczek 15 Cam Osler 16 Stuart Davies 17 David Hicks 18 George Rempel 19 David Cormie 20 Alex Fleming 21 Marvin Shaffer 22 Blair McMahon 23 24 25 4211 1 2 LIST OF PARTICIPANTS 3 4 Presenters: 5 6 Will Gilmore - Gilmore Cultural Resources Management Consulting 7 Nelson Hart - Nelson House 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 4212 1 2 INDEX OF EXHIBITS 3 4 Number Page 5 6 7 CNF-1019: Public Testimony on Heritage 8 Resources Inventory and Impact 9 Assessment for the Wuskwatim Projects 10 as filed by Will Gilmore 4275 11 12 OTH-1024: Presentation by Reverend Hart 4340 13 14 MH/NCN-1032: Answer to undertaking number 55 4417 15 16 MH/NCN-l033: Response to questions from Grand 17 Chief Margaret Swan, pages 1546 to 18 1549, volume 6 4417 19 20 MH/NCN-1034: Guidebook, Summary of Understandings 21 between Nisichawayasihk Cree Nation and 22 Manitoba Hydro with respect to the 23 Wuskwatim Project 4419 24 25 4213 1 2 INDEX OF EXHIBITS 3 4 Number Page 5 6 MH/NCN-1035: Wuskwatim toThompson Birchtree 7 station 230k transmission line, 8 draft table of contents for the 9 access management plan 4428 10 11 TREE/RCM-1003: Response to interrogatory 12 CNF/TREE/RCM/NFAAT 3 to 13 4 revised and 6 to 12 4429 14 15 TREE/RCM-1004: Interrogatory responses 16 CAC/MSOS/NFAAT 1 to 9 4429 17 18 TREE/RCM-1005: Interrogatory responses, 19 MH/TREE/RCM/NFAAT 3, 1 to 12 4429 20 21 TREE/RCM-1006: TREE interrogatory responses 22 to the CEC, NFAAT 1 to 12 4429 23 24 25 4214 1 2 3 INDEX OF UNDERTAKINGS 4 5 UNDERTAKING NO. PAGE 6 7 8 NO UNDERTAKINGS GIVEN 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 4215 1 2 THURSDAY, APRIL 8, 2004 3 Upon commencing at 10:08 a.m. 4 5 THE CHAIRMAN: It's time to get rolling. 6 Mr. Gilmore, maybe you can come forth and take the 7 hot seat. 8 MR. GREWAR: Mr. Chairman, I wonder if 9 just before we get started, I just wanted to indicate 10 to the Commission and to everyone in the room that we 11 have had a change in today's schedule. Mr. Schreyer 12 who was scheduled to make a presentation this 13 afternoon will not be appearing and I think that 14 concludes the changes. 15 THE CHAIRMAN: And I might add that 16 following this first presentation, there will be 17 another individual presentation then we will go on 18 with the EIS cross by Mr. Abra. And that will carry 19 on this afternoon. And if we get finished early 20 enough, other members in the audience may get an 21 opportunity to come and ask questions of Hydro and 22 NCN. But we plan to adjourn today at 4:30. So I 23 advise everyone in advance. 24 MS. WHELAN ENNS: If I may just a quick 25 question. Do we know when the Assembly of Manitoba 4216 1 Chiefs will present? 2 MR. GREWAR: No, Mr. Chairman. They also 3 withdrew on Tuesday and have not advised us of a 4 rescheduling date. We are in communication with them 5 but they have not declared whether they will be 6 participating or not. 7 MS. WHELAN ENNS: Thank you. 8 THE CHAIRMAN: With that, Mr. Grewar, 9 would you swear Mr. Gilmore. 10 MR. GREWAR: Sir, could you state your 11 name for the record, please? 12 MR. GILMORE: Will Gilmore. 13 MR. GREWAR: Mr. Gilmore, are you aware 14 that it is an offence in Manitoba to knowingly 15 mislead this Commission? 16 MR. GILMORE: I do now. 17 MR. GREWAR: Knowing this, sir, will you 18 promise to tell just the truth in proceedings before 19 this Commission? 20 MR. GILMORE: Yes, I will, to the best of 21 my knowledge and ability, yes. 22 MR. GREWAR: Thank you, sir. 23 24 (WILL GILMORE: SWORN) 25 4217 1 THE CHAIRMAN: You may proceed now, Mr. 2 Gilmore. 3 MR. GILMORE: Okay. I'd like to thank 4 the Manitoba Clean Environment Commission for 5 allowing me to be part of this. I'm lying. I 6 haven't slept for two nights and I'd much rather be 7 trout fishing in Montana or something but I'll do the 8 best that I can. 9 The testimony I'm going to give is based 10 on very limited information, basically three 11 documents. So put that in the context with the fact 12 that I'm from Wisconsin, I am not a Canadian 13 archaeologist and I'm not going to sit up here and 14 pretend to be nor am I going to infer that because 15 I'm making some recommendations, this is the way 16 Canadians should conduct archaeology. That's not 17 my -- that's not my place. However, what I would 18 like to do in a non-divisive manner is to present to 19 you some procedures and protocols that are going on 20 not just in the states but all over the world. 21 Wherever there are megaprojects, and there are of 22 course, as most of you know, there are many places 23 that are impacting on Indigenous peoples, these same 24 issues come up. 25 So with that, please excuse me but I am 4218 1 going to read this and would you rather I stopped 2 after one section for questions or should I just go 3 through the whole thing? It should take about 25 4 minutes. 5 THE CHAIRMAN: You may go through the 6 whole thing in one stretch but as long as you take 7 into consideration that the Reporter has to record 8 what you're saying so that you don't read it at full 9 speed. 10 MR. GILMORE: Okay. I won't whip through 11 it too quickly. 12 I've been asked to be here today to 13 testify about issues related to the inventory, 14 protection and ongoing management of cultural 15 resources that have the potential to be or already 16 are adversely impacted by the proposed Wuskwatim 17 project. These concerns will address separately the 18 Burntwood River to Wuskwatim Lake archaeological 19 survey and the heritage resources impact statements 20 prepared for Hydro's Generation and Transmission 21 Projects. 22 I first became involved professionally in 23 Northern Manitoba when I accepted a contract to work 24 on behalf of several of the stakeholders who are 25 either directly or indirectly involved here today. 4219 1 Individuals representing these stakeholders were Dale 2 Hutchinson, Mitigation Officer in the Aboriginal 3 Affairs Office for Manitoba Hydro, Pat Badertscher, 4 Manager of the Archaeological Assessment Services and 5 Historic Resources Branch of Manitoba Culture, 6 Heritage and Tourism, and finally representatives 7 from the Pimicikamak Cree Nation and their Northern 8 Flood Agreement Offices. 9 With the exception of Manitoba Hydro who 10 chose not to part directly but defer responsibilities 11 for planning meetings to the archaeological section, 12 I, along with representatives from these agencies, 13 formed a cultural resources planning group. We 14 devoted about three weeks of intermittent meetings, 15 working together, drafting -- beginning to draft an 16 integrated cultural resources management plan for the 17 Pimicikamak Cree Nation as well as an intensive 18 archaeological survey plan for Sipiwesk Lake. 19 Through the course of these meetings, our group also 20 had the opportunity to meet and discuss our project 21 with Dr. Leigh Syms from the Manitoba Museum and 22 Marcia Stentz and Chris Kotecki from Manitoba 23 Archives. It was anticipated that they too would be 24 part of our working group when we addressed issues 25 pertinent to their departments. 4220 1 And I'm just going to explain that very 2 quickly. One of the conditions that I said I would 3 work on this project is that if we got all of the 4 stakeholders together in one room and were able to 5 plan a survey and a cultural resources management 6 plan together and to in fact operate from the 7 principle of consensus decision making. But more 8 important, we wanted everyone on board so they would 9 understand the process, the magnitude, the extent of 10 what needed to be done in order to truly conduct a 11 comprehensive archaeological survey. So that was 12 very important that we -- I felt that we operate from 13 the principle that we're all in this together. Let's 14 get in the same room, let's do some great archaeology 15 together. But a matter of time, that ideal didn't 16 work out. But that's another topic. 17 Prior to this, I made two extended trips 18 to Cross Lake and Sipiwesk Lake for the purpose of 19 seeing for myself, from a boat and float plane, the 20 impact Hydro operations was having on archaeological 21 sites and cultural properties there. During this 22 time, I was able to talk with several traditional 23 Cree people about cultural heritage issues, 24 especially those concerning the damage and loss of 25 their ancestral burial sites and cemeteries due to 4221 1 erosion caused by fluctuating water levels. 2 I'm sorry, I didn't reference their names 3 or get their permission to use their names but at the 4 time of those discussions, I didn't anticipate being 5 here today otherwise I would have. 6 Despite this illuminating experience, I 7 still consider myself a relative outsider. 8 Therefore, a very pertinent question is why I had 9 been asked and have agreed to testify here today. 10 It's a question that I feel is extremely important 11 and, therefore, it's one that I intend to address 12 later in my presentation. For now, however, I wish 13 to remind everyone here today that despite there 14 having been no other archaeologist testify thus far, 15 I hope there will be, there are numerous others in 16 Manitoba and beyond who share some of the same or 17 similar concerns that I have about this project. 18 Some of their published and unpublished comments are 19 included in my testimony as well. 20 It will be made abundantly clear through 21 my testimony that a very large number of heritage 22 resources have already been or will soon be damaged 23 or lost due to these projects. Therefore, my only 24 practical purpose for being here today is to 25 hopefully gain the needed support to minimize and 4222 1 make less painful that loss in the days, weeks, 2 months and years to come, especially among the 3 descendant communities who can rightfully claim a 4 cultural affiliation and perhaps even an outright 5 ownership of many of these resources. 6 Too, I hope my testimony will inspire a 7 more equitable and open process that leads to a much 8 higher degree of professionalism in the future of 9 Hydro developments in Manitoba. Common sense tells 10 us that by pursuing anything else will result in all 11 parties losing something significant in the process. 12 This logic is based on a uniquely democratic 13 principle that seems to have already been 14 demonstrated throughout the almost three decades of 15 building dams in Manitoba. That without fairness, 16 equality and justice, there are no winners and no 17 victory. And among its citizens, government has no 18 real legitimacy. 19 Although I do not profess to be an 20 attorney, the legal and philosophical basis of my 21 testimony is an ancient principle that's being used 22 today around the globe in environmental disputes. 23 The public trust doctrine which dates to Roman times 24 establishes the right of public benefits over private 25 property. I propose that the cultural heritage 4223 1 rights of Indigenous people, living or not, be 2 considered publicly held commons that fall under the 3 category, the legal category of intellectual and real 4 property rights. And until the Cree and Ojibway 5 peoples are able to manage or decide to manage the 6 resources themselves, one of government's fiduciary 7 responsibilities is to hold those resources in trust. 8 In doing so, it is the responsibility of government 9 representatives such as this Commission to ensure 10 that all necessary steps are taken relative to 11 maintaining the resources inventory, physical 12 integrity and their preservation. 13 Finally, the scope of work of this 14 testimony is twofold. First to evaluate selected 15 portions of the EIS relative to its legal sufficiency 16 and how well it meets or doesn't meet professional 17 archaeological and cultural resources management 18 standards. And again I have to stop just for a 19 moment. At least from what I've been told and had 20 access to and have been able to locate, there are no 21 uniform guidelines for conducting public archaeology 22 in Manitoba that deal with the kind of details we'll 23 be going into today, and especially none that address 24 the correct procedures and protocols for 25 consultation. 4224 1 So with that in mind, this evaluation 2 will not be exhaustive. I was given a week to work 3 on this. But it is simply meant to highlight a 4 number of key points concerning the accuracy and 5 thoroughness of the heritage resources assessment 6 protocol and resulting reports. 7 Next I will offer a few general 8 observations about the heritage management system 9 Manitoba has in place that appears to have given rise 10 to some of its shortcomings. But I must say that the 11 intention of this report is to be short on criticism 12 but long on suggestions. Long on drawing from not 13 just my experience but the experience of, as you'll 14 see in the body of this report, some of the best 15 minds in cultural resource management in North 16 America. 17 I'm indebted to a number of experts and 18 scholars who, through their writings, have given me a 19 great deal of insight and guidance in preparing this 20 testimony. First and foremost, Nelson House Band 21 member Eva Marie Linklater masters thesis was and 22 will continue to be a core reference for any work I 23 and I hope any other archaeologist does in Northern 24 Manitoba. I spoke with the department 25 representatives from the University of Manitoba last 4225 1 night and oddly, she hadn't seen this masters thesis 2 and she is already talking about publishing it out of 3 the University of Manitoba. 4 If you get a chance to read it, by all 5 means, do. 6 Dr. Thomas King, author of several 7 volumes on cultural resources management is my 8 mentor. And his work was used extensively in the 9 area of practice in standards for professionalism in 10 the field. Nearly the entire section on "Approach 11 and Methodology" is consistent or taken directly from 12 his volume called Approach and Methodology -- I'm 13 sorry, "Cultural Resources Laws and Practice: An 14 Introductory Guide." Finally Dr. Marie Battiste, 15 Professor of Indian Education from the University of 16 Saskatchewan and James Youngblood Henderson, an 17 Indian Law Attorney and member of the University of 18 Saskatchewan College of Law has published a book 19 titled "Protecting Indigenous Knowledge and Heritage" 20 that I referred to frequently in my efforts which -- 21 let me emphasize -- I haven't mastered but in my 22 efforts to understand Indigenous peoples' heritage 23 rights in Canada specifically. Other sources are 24 cited in the main body of the text. I took quite a 25 few from reports that were done for the World 4226 1 Commission on Dams by archaeologists. 2 Defining the resources. One of the many 3 challenges of working in Canada or anywhere outside 4 of the United States has been trying to figure out 5 the discipline related terminology and their 6 meanings. For example, the authors of the Wuskwatim 7 Transmission Project Heritage Resources Environmental 8 Impact Statement defines heritage resource simply as 9 indicators of past human activities. They provide 10 valuable information about past life ways are the 11 link between past and present generations and are the 12 surviving tangible remnants of one's culture. It's 13 important to note that that exact definition is also 14 used in the heritage resource impact assessment for 15 the generation project. 16 The difficulty with this definition is 17 that it doesn't say what these resources are, only 18 what the authors propose that they do. Rather, 19 what's a well-defined observable universe of data or 20 cultural properties which to observe. In this case, 21 archaeologists need to identify cultural material 22 that can be inventoried, analyzed, measured, depicted 23 on a topographic map and assessed for future impact. 24 The company that did the survey or the assessment, 25 however, neglected to define for the reader and 4227 1 themselves just what material or property is that 2 they've set out to assess. This oversight gives rise 3 to the argument that if the resources, property or 4 data hasn't been properly identified and described, 5 how then could it have been thoroughly assessed for 6 possible damage or destruction? 7 A much more accurate, relevant and useful 8 working definition I found taken from the cultural 9 heritage resources is found in a report commissioned 10 by the World Commission on Dams titled "Dams and 11 Cultural Heritage Management" published in the year 12 2000. The authors describe cultural heritage as 13 comprising, number 1, cultural resources of living 14 populations. Their mode of subsistence, social 15 organization, religion, ideology, political 16 organization, language and material expression of 17 their ideas and practices which range from sacred 18 elements of the natural landscape to artifacts and 19 buildings. Two other important categories of 20 heritage resources are archaeological resources. 21 Occurrences and sites which may include artifacts, 22 plant and animal remains associated with human 23 activities, burials, architectural elements which may 24 or may not be an integral part of the cultural 25 heritage of the local inhabitants. And let me stress 4228 1 that these too may have religious traditional 2 cultural significance to living populations. So they 3 have two meanings. 4 And really that's what this whole 5 discussion is about today. The interpretation of 6 archaeological meaning and the context of its value 7 to science and a discussion about archaeological 8 resources and its value to people who believe they 9 are connected to it through their ancestry, their 10 cultural traditions and they consider themselves the 11 caretakers. It's what they belong to as opposed to 12 what belongs to them. Archaeologists believe 13 traditionally, not all, but traditionally this 14 material belongs to us, it belongs to the Crown, it 15 belongs to the museum. 16 It's been my experience in the years I've 17 worked with indigenous community, the indigenous feel 18 this is me. This pot charred, this pottery, this 19 ancient stone tool is who I am. It's a tremendous 20 difference. 21 The third important category of 22 cultural -- heritage resources are cultural 23 landscapes, extremely, extremely relevant in this 24 discussion, which consists of land forms and biotic 25 as well as non-biotic features of the land resulting 4229 1 from cultural practices over historical or even 2 prehistoric times by generations of people of one or 3 more cultural traditions. These resources constitute 4 the cultural heritage of a people, nation or 5 humanity. 6 Each class of cultural and/or heritage 7 resources is defined in a way so that it can be 8 observed on the landscape and in some way 9 inventoried, assessed and quantified. Links to past 10 life ways cannot be evaluated in this manner but the 11 remnants of historic buildings, traditional cultural 12 properties and culturally significant biotic elements 13 can be. 14 In the ensuing pages of the heritage 15 resource impact statement, only archaeological 16 resources are evaluated in this manner. Although 17 cultural components is mentioned in the methodology 18 section of this report, the author doesn't describe 19 what those are. 20 In summary, only one of three classes of 21 heritage resources, according to the World Commission 22 on Dams definition, are addressed in the impact 23 statement or focused on leaving cultural or historic 24 landscapes and cultural resources of living 25 populations omitted entirely from the field survey, 4230 1 hence the potential impact these projects will have 2 on them. 3 I'll explain this again later. Some of 4 this information may well be in the socioeconomic 5 impact assessment. However, I'll describe later as 6 well, this information too belongs in this category 7 because it's so intricately linked, so intertwined 8 with the cultural aspects of these living 9 communities. 10 Approach to methodology on the 11 archaeological survey report. Survey methodology is 12 a single most important step in conducting field 13 research. It should describe not only how the survey 14 will be carried out but perhaps more important how 15 and why the methods chosen are the most appropriate 16 choices in order to address the goals of the 17 research. In other words, the research goals are 18 what guide the selection and use of particular types 19 of methodology. 20 In this survey report, the research goals 21 are not clearly stated but rather inferred under the 22 heading of "Aims" in a section of the report labeled 23 "Research Strategy." Several things seem clear from 24 reading this list of aims. First, the field work 25 pursues mainly, if not exclusively, archaeological 4231 1 deposits versus the other types of cultural resources 2 described earlier. 3 Closely related to this oversight is the 4 fact that there were no formal informant interviews 5 or oral histories or included or conducted. If they 6 were conducted, they weren't included as an appendant 7 to this report that I saw. Ideally, these interviews 8 would not only have been those persons who themselves 9 or their ancestors have lived, worked, extracted 10 resources or even spent a lot of leisure time on 11 Wuskwatim Lake over a period of many years. 12 In a study such as this, informant 13 interviews are mandatory if the goal of the 14 investigation is to locate not only archaeological 15 deposits but cultural resources of living populations 16 and the elements of cultural and historic landscapes 17 as well. 18 Although there were indigenous workers 19 involved in the survey, no evidence was presented 20 that states that they were noted traditional cultural 21 authorities and this will be a continuing theme in my 22 testimony regarding the area that was surveyed. 23 Based on my experience and that of other 24 archaeologists, those who are most familiar with a 25 survey area are usually elders from nearby 4232 1 communities who, perhaps for health reasons, would 2 not be capable of working in the field. Usually, a 3 somewhat formal concerted effort is needed to locate, 4 arrange for interviews and provide honorariums for 5 these extremely valuable survey participants. 6 A second important goal of informant 7 interviews is not only to ask informants where 8 resources are located but also begin to inquire about 9 which resources the inhabitants of an area are most 10 concerned about. This is especially important in 11 cases where the local population might be culturally 12 affiliated with the material being impacted and/or 13 accessioned which means collected. 14 It follows that in some cases, heritage 15 resources such as historical burial sites, cemeteries 16 and the remains of certain structures might be 17 traceable not only to a local band but individual 18 family members within the band as well. The rightful 19 owner or owners of the property should govern in 20 which case ownership rights can be established and 21 protocols created for recovery, if that's done at 22 all. 23 In instances where evidence exists for 24 even prehistoric materials to be culturally 25 affiliated with a living population as I understand 4233 1 is the case in Northern Manitoba, intellectual 2 property rights might apply and discussions should 3 ensue regarding the final disposition of the 4 property. 5 But in this case, I think what's 6 apparently missing in this is the edict or aetiology, 7 whichever way you want to phrase it, that much of 8 this material actually belongs to a living culture. 9 Somewhere in one of the Acts, I think 10 it's in the Crown Properties Act or one of them, it 11 says that all archaeological material belongs to the 12 Crown and that's kind of been the way things have 13 been treated in Manitoba, because no alternatives 14 have been presented. So I propose to you today that 15 that be something to think about, to begin to talk 16 about and think about repatriation and matters 17 related to intellectual property rights. 18 In addition to cultural affiliation 19 inquiries, surrounding communities should always be 20 consulted before research is conducted on or near 21 Indian land. In these formally arranged consultation 22 meetings, the principal investigator should explain 23 what the research goals of the investigation are, 24 where the study will be conducted, what methods will 25 be used and finally, the purpose and anticipated 4234 1 outcome of the study. Even more important, the 2 investigator must actively seek out and listen to the 3 concerns and interests expressed by the local 4 informants, and where appropriate, integrate those 5 concerns into the overall survey plan. 6 And I can't emphasize that enough. One 7 thing is clear and that is consultations such as this 8 should be carried out at the earliest possible stage 9 of a project planning, not after a line is drawn 10 through a map or after an area is blackened on a topo 11 showing where you're going to construct a building. 12 It should be done way before that. And what 13 information you get from local community members 14 concerning that project is what's in fact called 15 mitigation. Those concerns, those worries should be 16 a part of the mitigation and planning process. 17 The issue here today isn't about building 18 dams, it isn't to me in my approach to archaeology. 19 It's about giving Indigenous people the opportunities 20 to inventory their property, inventory their land, 21 identify in general terms where their sacred places 22 are, where their traditional places are for gathering 23 resources and to bring those places to the table and 24 to sit down with the planners of this project and say 25 we'd rather you consider alternatives. These are 4235 1 areas that are sacred to us. And again, that should 2 go on before the first mark is made on a topographic 3 map, the earliest possible stage. 4 The approach to mitigation and 5 consultation isn't adhoc. It isn't making a mess and 6 then going in afterward and cleaning it up or trying 7 to clean up. It doesn't work that way. And 30 years 8 of documents I've read shows that, proves that. 9 The professional underpinnings for this 10 requirement, the requirement with regard to going all 11 out for the protection of the heritage property 12 rights, the cultural heritage of Indigenous people 13 are described in great detail in the following. The 14 World Archaeological Congress Code of Ethics, the 15 Canadian Archaeological Association statement for 16 ethical conduct pertaining to Aboriginal people, 17 it's very clear on that document. The Canadian 18 Archaeological Association principles of ethical 19 conduct. And finally the Register of Professional 20 Archaeologists code of conduct and standards of 21 research performance. 22 These aren't my ideas, these are ideas 23 inherent to the new discipline of applied 24 archaeology, the new awareness that we are 25 facilitators when asked who we can become guardians, 4236 1 we can be interpreters, we can help analyze. But 2 these properties represent the cultural heritage of 3 the people who came before us and who I might add, 4 with few exceptions, have been the caretakers of 5 their ancestors and other people's heritage materials 6 for, in the case of Manitoba, for about 6,500 years 7 longer. In other words, it seems they can assume the 8 higher moral ground when it comes to the protection 9 of the heritage properties of others. They have not 10 gone out of their way with few exceptions to destroy 11 other people's burials. 12 It's apparent in reading the aims of the 13 field work that emphasis was placed on revisiting 14 sites that were recorded during previous 15 investigations in this survey. A second emphasis was 16 to assess sites that have already been impacted by 17 erosion and to recommend mitigation measures. It 18 appears that in each case, the preferred mitigation 19 measure were to salvage, in some cases just surface 20 collect, as much as of the site as possible. By most 21 professional survey standards, salvaging work alone 22 can be important but is usually farther down the list 23 of mitigation preferences. 24 The first priority should be to locate 25 sites that have not yet been adversely impacted by 4237 1 this predictable erosion. It's only among undamaged 2 sites that full inquiries can be made concerning site 3 size, cultural context, seasonal occupation, site 4 function, site formation processes, et cetera. But 5 in order to locate these sites, much more emphasis 6 should have been placed on subsurface testing 7 relative to habitable features on the landscape, 8 specifically the focus of subsurface testing 9 locations can be minimally applied as habitable, 10 level and well-drained surfaces lying within 100 11 meters of riparian features and wet land edges as 12 well as post-Pleistocene terraces, beaches and strand 13 lines. 14 I can't get into the details, again I am 15 not a Canadian archaeologist, of whether or not those 16 features even exist in Northern Manitoba. But 17 clearly, there are geographic features that are 18 indicators, strong indicators of a high potential of 19 prehistoric and historic habitation. And those 20 should be mapped out and subsurface tested. 21 A rather sad irony arises from this 22 post-mortem methodology and that the archaeologists 23 themselves facilitate the loss and destruction of the 24 very resources they are professionally, ethically and 25 morally responsible to make every possible effort to 4238 1 document as completely as possible or preserve. 2 In other words, if the survey methodology 3 calls for putting most of the person hours of survey 4 work into locating already damaged sites, there will 5 be far fewer opportunities to identify sites that 6 have not yet been impacted; therefore, hold both the 7 most scientific value. And in the case of sacred 8 sites, such as burial places, to mitigate these 9 sites, i.e. perhaps riprap them before the damage 10 actually occurs. 11 I'm proposing today that a fault in the 12 archaeological methodology is to simply wait until 13 somebody finds human remains eroding out from the 14 river bank or the bank of the lake, the reservoir, 15 and then taking action. And then saying oh my, when 16 these -- many of these instances are totally 17 predictable and using effective mitigation efforts 18 are in fact preventable. 19 In other words, I wish to propose to you 20 that we should oppress or depress the notion that 21 there are these discoveries made. We should instead 22 be identifying these properties beforehand. 23 Although it should have been known prior 24 to the field work that at least one significant 25 historic site was situated within the survey area, it 4239 1 appears from the reports content and bibliography 2 that there was little or no library and archival 3 research carried out relative to this particular 4 site. Now there may have been but I didn't see it in 5 that report. 6 Early maps, missionary journals and 7 related Hudson Bay records are not referenced as 8 having been consulted in order to locate other 9 potential historic period indigenous and perhaps 10 additional Euro-Canadian sites situated in the study 11 area. 12 Here again, if I could just mention for a 13 moment. Intensive archaeological deposits, 14 especially those that indicate there was year-round 15 habitation or continual seasonal occupation commonly 16 also signal the presence of burial sites of sacred 17 sites. If people lived in one location on the 18 landscape for a long period of time, chances are very 19 very good that someone is buried nearby. It should 20 come as no surprise when you have a site that has a 21 great deal of material, it's what's called 22 multi-component representing multiple phases of a 23 historic period or prehistoric period, certainly 24 there's going to be a burial site located nearby. I 25 propose to you that these sites should be 4240 1 specifically identified and assumed to be also a high 2 priority or a sacred site for that reason until 3 ground-truthing proves otherwise. 4 The survey report did not include a 5 historic or archaeological context of the survey 6 region. The importance of this omission is readily 7 understood by examining its purpose. The historic 8 context organizes information based on a cultural 9 theme bounded by geographic and chronological limits. 10 A context is intended to describe the significant 11 patterns of development in a particular area or 12 region. It's a local history and prehistory that 13 should be used as the foundation for decisions about 14 identification, evaluation, registration and 15 treatment of archaeological property. It also helps 16 to identify gaps in the archival and/or 17 archaeological record. For this reason, it's 18 difficult to understand on what basis a site rating 19 system was established, as was done in this survey 20 report. That system identified sites as having a 21 high, medium, low priority as far as mitigation was 22 concerned. The burial sites are understood. The 23 rest are somewhat murky. It is proposed here that 24 this or any system is invalid unless living cultures 25 play and are asked to play an equal if not dominant 4241 1 role in deciding how these sites should get rated. 2 Once again, we're entering the community 3 of another distinct culture that lived successfully 4 in the landscape for 6,500 years plus. Wouldn't one 5 think that it's that community that should be asked 6 which sites are most important to them and which are 7 not and mitigation planning be determined along that 8 line? 9 Perhaps most important, the cultural or 10 archaeological context is meant to provide a 11 synthesis of intangible cultural values of the local 12 indigenous peoples. It is used to identify aspects 13 of the landscape or physical locations that have 14 religious, ceremonial or traditional cultural 15 significance to the indigenous peoples in the region. 16 For example, a completed cultural context will have 17 identified locations within the survey region that 18 were once or are currently used as trap lines, 19 ceremonial or meeting places, dance circles, fish 20 camps, all of which need to be considered in 21 construction planning. 22 In this writer's opinion, and again this 23 is something that might exist somewhere that I 24 haven't seen, the report's most significant omission 25 is not identifying on detailed maps the area of 4242 1 potential effect in specific detail. By not doing 2 so, it's not possible to justify why some sections of 3 the research area were more intensively surveyed 4 while others are not. For example, what 5 justification is there for expending extremely 6 limited time, manpower and resources to investigate 7 an area that might not be impacted or only minimally 8 impacted by current or future hydro projects while 9 other areas might be totally inundated? Without a 10 well-defined area of potential effect, which I 11 understand probably couldn't be precise, but 12 nonetheless could show what kind of energy deriving 13 from the dams were going to impact what kind of soil 14 conditions, therefore predict not within a detail of 15 a metre or even a few metres but perhaps as much as a 16 half a kilometre what the erosion rate might be. 17 Without that, it's very difficult to determine a 18 rating system for resources in mitigation measures. 19 Another serious oversight that relates to 20 mapping is the need to show the precise areas where 21 pedestrian surveys or shovel testing was carried out 22 along with the locations of test pits and excavation 23 units themselves. It is important for the researcher 24 to provide a rationale for both the number and 25 spacing of testing units. Again, this is relative to 4243 1 this predictive model of where, from a geological or 2 geomorphological and a riparian feature context where 3 sites are most likely to be. These data are often 4 used to evaluate how thoroughly a survey area has 5 been investigated. Within some agencies in the U.S., 6 for example, a specific number of testing units must 7 be carried out relative to the presence of habitation 8 features. In other words, don't just say you looked 9 at an area that looked important, but you did 38 10 shovel tests at regular 10 metre intervals in two 11 transects. That says something. That says that, 12 yes, indeed we can verify or substantiate that there 13 was an adequate amount of subsurface testing done on 14 this habitable, level, well-drained, isolated ridge 15 overlooking the wetland and nothing was found, 16 satisfied. 17 On a related topic, the reader questions 18 the use of the term "mitigation" for what most 19 archaeologists would label salvage archaeology or 20 surface collecting. And this is going on all over, 21 not just in Northern Manitoba. Using the popular 22 definition of mitigation, it's impossible to lessen 23 the impact or minimize the effect of having a sacred 24 site such as a burial that's been washed into a fast 25 moving river. And even if these sites are excavated 4244 1 and the remains taken to a museum for C-14 dating, it 2 does nothing to lessen the collective pain a 3 community feels when one of its own is removed from 4 the sacred ground where they were presumably intended 5 to remain forever. 6 The researcher must keep in mind at all 7 times that their priorities are usually science 8 related while the local indigenous communities are 9 most always for the care and protection of the 10 deceased. They commonly and rightfully consider 11 themselves the spokesperson and caretaker for those 12 relations who are no longer able to speak for 13 themselves. This relationship is, in many cases, 14 sacred on both a community and a personal level. 15 Effective mitigation of sites that have 16 importance to living cultures is a function of 17 informed consultation. It should be carried out when 18 there's still an opportunity to prevent the loss and 19 destruction of cultural resources which means it must 20 take place at the earliest possible stage of project 21 planning. Entering into consultation after resources 22 have already been impacted or destroyed seems to 23 serve mainly as a perfunctory bureaucratic tool meant 24 to somehow legitimize the damage that's been bestowed 25 on the victim. Dog and pony show. 4245 1 Lastly, the author wisely includes -- the 2 author of the survey report wisely includes 3 recommendations for future work for nearly every site 4 referred to in the survey report. This presenter 5 strongly recommends that an official and 6 well-documented follow-up be done to determine which, 7 if any, of those recommendations were carried out and 8 what the results were. This is especially important 9 for those 12 sites that have the potential to be 10 associated with human burials and cemeteries. 11 Again, this is testing the effectiveness 12 of the mitigation program that's in place in 13 Manitoba. During this survey, there were 12 specific 14 locations identified as having the potential to 15 contain human burials. It can be assumed, many of 16 them, some of them at least, had the potential to be 17 impacted by erosion. What was done after that survey 18 was conducted in 1998 or 1999? What's been done in 19 the last three years to prevent or to mitigate those 20 burials from potentially being destroyed and washed 21 into the river? 22 They may be. They all may have been 23 taken care of, removed and re-interred or riprapped 24 or whatever. I don't know. I didn't see a follow-up 25 report. 4246 1 In conclusion, the field work and final 2 report appear to be critically incomplete. More 3 specifically, field procedures are inadequate by 4 commonly accepted professional standards mainly 5 because they seem to have excluded almost entirely 6 participation by the primary stakeholders. A broad 7 representation of the Aboriginal community who has 8 lived in the Wuskwatim Lake and Burntwood River 9 region consequently the cultural and historical 10 landscapes of these living communities have the 11 potential of being irreparably destroyed and the 12 cultural heritage they represent will be lost forever 13 if the projects are allowed to move forward as 14 planned. In this presenter's opinion, any further 15 action that leads to the licensing of these projects 16 will be done contrary to the numerous provincial, 17 federal and international laws that are yet to be 18 satisfied, in most cases even addressed. 19 Once again, as a disclaimer, perhaps 20 there's documents out there that I didn't see 21 included in the impact statement I looked at. It 22 would be great if there were. And I stand corrected 23 if they exist. 24 The Wuskwatim Transmission and Generation 25 Project Heritage Resources Impact Statement. The 4247 1 first basic step in preparing a thorough cultural 2 resource impact assessment -- by the way, most of 3 this is taken directly from Dr. King's text which is 4 again a more or less a primer on -- a section on 5 conducting cultural or heritage impact assessment 6 studies. The first basic step in preparing a 7 thorough cultural resource impact assessment is to 8 establish the legal and regulatory requirements that 9 are necessary to consider in light of the potential 10 impacts on the resource. The reason we refer to 11 international covenants on human rights, on 12 international covenants on the rights of Aboriginal 13 people to a cultural heritage is so that we know 14 legally, philosophically, ideologically, politically 15 what should drive, what should be the foundations of 16 how we go about doing our work. The first remedial 17 step is to recognize we need to abide by these human 18 right principles that relate to heritage rights. 19 In other words, the researcher needs to 20 know which laws, covenants or regulations speak 21 directly to the impact that's about to occur. And in 22 the case of this Commission or whatever Commission 23 licenses the project, that Commission needs to know 24 what those are as well. By omitting this important 25 review, the agents of the impact assessment may be 4248 1 responsible for adverse impacts that might occur. 2 It's been my practice that if I'm 3 designing a scope of work and I don't include an 4 important element that protects the heritage rights 5 of someone else and I'm hired as the expert, I'm 6 responsible if those heritage rights aren't being 7 protected. 8 What's more, and in this particular 9 instance, this oversight has the potential to 10 adversely affect the heritage rights as well as that 11 of the basic human rights of Manitoba's indigenous 12 peoples. It is the researcher's responsibility, 13 therefore, to coordinate the assessment process with 14 the relevant legal mandates that ascribe to the full 15 range of impacts and impacted parties. An 16 abbreviated list of documents include United Nations 17 Economic and Social Council's Mandate on the 18 Principles and Guidelines for the Protection of the 19 Heritage of Indigenous Peoples, Manitoba Human Rights 20 Code, UNESCO Universal Declaration on Cultural 21 Diversity, Manitoba Multicultural Act, Declaration of 22 Principles of Indigenous Rights, Adopted by the 23 Fourth General Assembly of the World Council of 24 Indigenous Peoples, and the Constitution Act of 1982, 25 and of course Treaty number 5. 4249 1 Still others that speak directly to 2 heritage resources include the Cemeteries Act, Crown 3 Lands Act, Energy Act, Resources Act, Manitoba 4 Ethnocultural Advisory and Advocacy Council which 5 would probably come into play here, Law of Property 6 Act, Manitoba Archives Act, Crown Corporations Public 7 Review and Accountability Act. But I found in going 8 over these, again I am not an expert, but one Act 9 that you have that is really really helpful in terms 10 of specifically defining the content of these Acts is 11 the Interpretations Act. 12 What the Interpretations Act says that 13 you cannot abrogate Indigenous peoples. That the 14 definitions of these Acts should be done liberally. 15 In other words, if you look at the Indian Act for 16 example and it says you shouldn't remove burial items 17 from reserve property. Well, if you use the 18 Interpretation Act -- again, I am not a lawyer, but 19 these are things you have to read in the kind of work 20 I do -- you read the Interpretation Act and say we've 21 got to take a liberal interpretation of that. It 22 doesn't just mean burial sites, that means any place 23 that's sacred, that's hallowed ground to indigenous 24 people. That shouldn't be removed. It shouldn't be 25 in your museums without the expressed permission of 4250 1 the community to whom that material belongs or that 2 community that has jurisdiction over that area. 3 The only three statutes or laws that 4 appear to have been referenced or otherwise addressed 5 in the impact assessment documents is the Canadian 6 Environmental Assessment Act, the Manitoba 7 Environment Act and the Manitoba Heritage Resources 8 Act. 9 The next important step is informal 10 scoping. During this process, the area of potential 11 effect is determined along with descriptions of the 12 anticipated types of impacts. For example, 13 construction might cause physical impacts on 14 resources while the placement of cement pads and 15 transmission towers might cause visual, auditory and 16 stray voltage impacts on the surrounding environment. 17 It's during this stage that the researcher must 18 ascertain all other potential impacts including, but 19 not limited to, Aboriginal sacred sites and religious 20 practices, medicinal plants, subsistence practices, 21 special cultural and economic concerns of low income 22 and minority populations and of course archaeological 23 data. 24 I'll give you an example of that. If, 25 for example, people have a traditional fish camp that 4251 1 they go to seasonally and they take their families 2 out and harvest fish and there's traditional places 3 where those nets are set and that over weeks perhaps 4 becomes communal. Other families join, they come 5 together at this location. It's a hell of a place to 6 string a transmission line because the presence of 7 that, not just the visual impact, but the auditory as 8 well in some cases adversely impacts those families' 9 opportunity to enjoy what they have traditionally 10 done for hundreds of years, fish and enjoy each other 11 at that particular location. And most importantly, 12 enjoy the solace and the ability to commune with 13 nature, not with transmission lines. 14 If that were not the case, I suspect that 15 we, in our urban planning, would routinely be 16 stringing transmission lines through the middle of 17 public parks. If you notice, we don't do that. 18 It should be emphasized once again that 19 the location of some of the resources might be 20 sensitive to indigenous communities, therefore 21 consultation about them should not be carried out in 22 public meetings. That's going to be talked about a 23 couple of times. It's not anyone's right to demand 24 that the locations of places of importance are put in 25 anyone else's hands other than the Indigenous people. 4252 1 It's reasonable, we think, to request 2 that regions be identified that are culturally 3 sensitive. But in the course of consultation, we 4 shouldn't have to identify specific locations unless 5 it's for directing us for mitigation work, protecting 6 the resource. 7 No such informal scoping procedure 8 appears to have been completed. But I understand 9 since then, in listening and discussing about the 10 person's work who did it, I'm sure there were some 11 informal scoping, it just wasn't documented. 12 Physical impacts, including erosion and construction, 13 is mentioned where appropriate. Unfortunately, 14 neither report contains a map showing again the area 15 of potential effect. 16 Based on the results of scoping, the next 17 step is ascertaining impacts and cultural resources 18 is the use of intensive interdisciplinary effort to 19 try to identify the resources that may be affected. 20 A partial list would include indigenous cultural 21 items, human remains. That's obvious. Plus funerary 22 items that often times accompany burials, 23 archaeological resources, archaeological, historical, 24 and scientific data, Indigenous religious practices 25 that may or may not relate to cultural items, 4253 1 cultural uses of the natural environment including 2 all the plants, animals, aquatic resources, and of 3 course ceremonial and other religious places, use of 4 the landscape. 5 I was watching the war in Iraq this 6 morning, as I have been, and a thought occurred to me 7 that today's new incursion into the city, some basic 8 principles are being broken by, I hate to say, 9 marines. And that is the bombing of mosques, sacred 10 places. It occurred to me that many of the 11 communities in Northern Manitoba would have had their 12 sacred places preserved had the Government of Canada 13 declared war against them. In other words, the rules 14 of international law of war protects sacred places. 15 So a way of mitigating this is to declare 16 war on indigenous people, to protect their sacred 17 places. I thought that was very interesting. 18 Among the other list of properties that 19 have to be considered are historic properties, 20 especially those that are eligible for inclusion on 21 the Manitoba heritage site list. There is a list 22 apparently from what research I did that identifies 23 properties that have some significance to 24 interpreting the history of Manitoba. This step is 25 particularly important within traditional Aboriginal 4254 1 land because as of this year, what's on the website, 2 only six of the 108 sites that have been identified 3 for special protection in Manitoba are Aboriginal. 4 In other words, over 94 per cent of heritage sites 5 deemed worthy of special heritage recognition are 6 European. The irony here is that Aboriginal people 7 have lived in Manitoba for about 6,500 years or 8 longer than Europeans and can associate their 9 occupation with perhaps hundreds if not thousands of 10 sites. 11 Interestingly of those six, there was a 12 cluster that were put on that list in the eighties, 13 the early eighties and the others were put in during 14 the 1950s. But to my knowledge, no other ones have 15 been nominated or placed on that list. 16 Now here's the kinds of studies that 17 should be carried out but it shouldn't be limited to. 18 The multi-disciplinary background studies, local 19 history, prehistory geography, ethnography, culture 20 in consultation with local stakeholders. This 21 information is the basis for bringing forward 22 predictions about cultural resources that may be 23 present in the different areas of potential effect. 24 In other words, your job is to find the resource, 25 identify the full range and then put them somehow 4255 1 regionally and specifically on a map. 2 The next step, identification of cultural 3 landscapes that are either built to reflect cultural 4 norms or whose character reflects unplanned 5 relationships between human culture and the 6 biophysical environment. 7 When Woody Allen leaves his apartment in 8 Midtown Manhattan, he has a route, from what I 9 understand. He has a favourite deli, he has a 10 favourite theatre, he has a favourite park bench that 11 he talks to his friends at, and many of us have that 12 same kind of thing. Some of us, when a dog dies, we 13 bury him in our backyard and the kids plant a little 14 tree back there. Whatever it is on the landscape 15 that identifies who we are and what's important to 16 us, what connects us to the landscape is important 17 out there where these dams and these projects are 18 being built. Those are the things we have to inquire 19 about. Those are the things that are critically 20 important to us as social human beings and that's 21 what's being described here. This is what's being 22 sought after. 23 Archaeological surveys to identify 24 prehistoric and historic archaeological sites. And 25 this must be done for practical reasons with close 4256 1 association with descendant communities as well. In 2 many cases, the descendant communities have lived on 3 this landscape for generations and know the locations 4 of where these places are. There must be a survey 5 for traditional cultural property to identify sites 6 and locations that have that ceremonial or religious 7 significance. 8 Studies of Impacts on living 9 sociocultural systems, we've been through that. 10 Surveys to identify and evaluate the conditions and 11 treatment of historical documents. This is 12 especially important that periodically, there's some 13 status given to professionalism and capacity of local 14 repositories like museums, laboratories, archives, so 15 that we know that material that's being brought in 16 from the field is being cared for, is being 17 accessioned, catalogued, analyzed, is being included 18 in reports. 19 As noted from a tour that I was given of 20 the museum because of a lack of staffing, there's 21 some problems, some problems with timeliness in 22 getting material accessioned, included in reports, 23 et cetera. 24 Although some socioeconomic impacts 25 appear to have been addressed in a separate section 4257 1 of the EIS, which I did not read, there are aspects 2 of these that are tightly interwoven with cultural 3 factors and therefore should be repeated here or 4 addressed in a coordinated manner. 5 It appears that only previously 6 identified archaeological resources are addressed in 7 each document. Interestingly, the literature reviews 8 conducted are admittedly general and the author 9 reports that the heritage resources described therein 10 might or might not be present in the survey area. 11 An apparent attempt to explain the reason 12 for this is a paragraph that was difficult to explain 13 and I probably shouldn't have quoted that in here 14 because it's taken out of context. Maybe some of you 15 would have been -- maybe it was clear in the context 16 of the rest of the dialogue. But regardless, what 17 this sentence means precisely I wasn't sure of but 18 what is for sure is that potential effects relative 19 to locations of various resources is impossible to 20 assume unless you can identify their precise 21 location. I mean the impacts can't be predicted 22 unless you know where they are. And the author here 23 refers in her sentence to there being an 24 implementation of a protection plan. I don't see how 25 that's possible to implement a protection plan if 4258 1 someone hasn't identified the exact location of these 2 resources. 3 In my opinion, the most glaring oversight 4 of the transmission project report stems from the 5 fact that there appears to have been no archival 6 research, informant interviews or archaeological 7 surveys done along the proposed transmission line 8 route. 9 Now I can't believe that doesn't exist 10 somewhere. I'm almost positive it would. If you're 11 going to construct maintenance roads and these huge 12 cement pads, assuming you're going to have to do 13 that, there hasn't been an archaeological survey done 14 to at least a portion of that area. But again, it 15 wasn't attached to that document that I looked at so 16 it may exist. 17 But in any event, the document, as I saw, 18 the portion I saw has no basis for impact assessment 19 other than to predict what is imagined would happen 20 along the path of the transmission line. If a report 21 exists showing locations of these sites, then that's 22 fine, but I didn't see that report. 23 After these studies are completed, the 24 next step is determination of significance. Now this 25 is really important. These decisions are based on 4259 1 multiple factors including potential for impact, 2 significance to living cultures, scientific value, 3 historical value and even culturally valued 4 aesthetics. I gave you an example of that before 5 about setting fish nets. All of these factors can 6 and should be used for determining the significance 7 of the broad range of resources that have been 8 identified. 9 By appropriately responding to the simple 10 question, what resources are significant to who and 11 why, it become obvious that the research is 12 incomplete if it hasn't been carried out in 13 partnership with the descendant local community. 14 This exercise doesn't appear to have been 15 done at all other than the report providing a list of 16 mostly disturbed sites that are situated within or 17 near the survey areas that will impact -- be impacted 18 by a small segment of the area proposed for 19 construction. 20 The next important step in completing a 21 heritage resource impact assessment is determining 22 precisely what type of anticipated effect. Now 23 here's a brief list of some of the effects that are 24 possible. Physical damage, we know about that. 25 Alteration of the visual environment. For example, 4260 1 impacting a culturally favoured viewshed, creating 2 changes in the auditory environment where the absence 3 of noise is important such as at a sacred site. 4 Introducing things into the natural environment that 5 are incompatible. In some areas, a transmission 6 tower would be presumably inappropriate. Neglect of 7 a resource by an agency responsible for protecting 8 these resources by letting the site erode away or 9 become vandalized. In other words, we feel that, 10 generally speaking, it's the responsibility of a 11 professional to do everything possible to ensure a 12 site doesn't erode away entirely, that salvage 13 archaeology is important. But in terms of 14 prioritizing the sites, there should also be a 15 concerted effort to identify the sites that have been 16 not been impacted. 17 Also another impact is the transfer of 18 property out of federal or provincial ownership or 19 jurisdiction in such a way that leads to damages. In 20 other words, if land -- in the case of say the land 21 used for the transmission line is technically legally 22 transferred from ownership by the Crown to ownership 23 by Hydro or under their jurisdiction, the question 24 should be asked will the loss of any laws that apply 25 to Crown land by transferring it to Hydro impact on 4261 1 the ability to preserve and protect the heritage 2 resources? In other words, when the transfer is 3 made, are all bets off in terms of requiring 4 mitigation because it no longer is fitting that 5 particular class or category of land status. So 6 those land transfers of and in themselves require a 7 survey of sort. In this case, a legal and 8 consultation and discussion survey. 9 Once these steps are completed, the 10 research team must begin to generate in close 11 consultation with the stakeholders, in this case 12 indigenous and local communities, mitigation measures 13 that can include one or more of the following. 14 Remember that mitigation here is almost always 15 referred to as archaeological recovery. But 16 mitigation in reality can and should be one or a 17 combination of avoiding the impact altogether. 18 Remember the map I told you about when 19 someone says, when a community says this is an area 20 we've used that's frequented. We always get moose 21 out of this area. We have as long as memory serves 22 us. Therefore, we don't want that area impacted. 23 Then the design of that transmission line should 24 seriously consider being redrawn around that area. 25 You avoid the impact. 4262 1 Minimizing the impact, if it's possible 2 as is the case in some parts of the country, I don't 3 know if it is here, to go underground at some 4 segments with transmission lines? Perhaps that's an 5 effective mitigation measure. Rectifying the 6 impacts. If a burial erodes and disappears from a 7 location that the ground itself is considered sacred, 8 that the person deceased and his family chooses a 9 place they should be buried in a prominent location 10 on an island. When practical, at all practical, 11 perhaps that land form should be rebuilt, 12 reconstructed, riprapped and that burial put back in 13 place. 14 In this case, the land form itself has 15 traditional cultural significance. That would be an 16 example of rectifying the impact. 17 Reducing and eliminating impact over 18 time. Perhaps a regime of riprapping along 19 particularly vulnerable stretches of rivers might be 20 a way over time in segments, in portions of 21 minimizing impacts as far as erosion. And of course 22 compensating for impacts. 23 The importance here is again, early on, 24 using an example that a family who has a fish house 25 is to lay out on the table that map and say, you 4263 1 know, chances are this place is going to be flooded. 2 What are your concerns? What are your problems? How 3 can we come to agreement? Here's the issues. It's 4 going to get flooded. Can we pay you for it? Is 5 that an option? 6 Here again, effective consultation with 7 the local community is critically needed in order to 8 arrive at a list of mitigation measures that satisfy 9 each stakeholder concern. It's about making 10 concessions in some cases. 11 This might require additional studies 12 before the final decisions are made. The important 13 thing to remember is that consultation should begin 14 at the earliest stage, it should remain flexible, 15 inclusive and proactive. 16 For example, simply posting a notice 17 about the impending destruction of a family's fish 18 house isn't consultation, but taking the time to find 19 out who owns the house, perhaps buying a pound of 20 coffee and going to the person's house and sitting 21 down in the living-room and talking about what would 22 happen, what would be the impact of that fish house 23 being destroyed is effective mitigation -- 24 consultation and mitigation. 25 So I think the pain, when I think of it, 4264 1 isn't so much as the impact. That's important. But 2 the pain is making the impacts without any human 3 consideration of the reaction the local community has 4 for what's happening to their traditional homeland. 5 It's to making a plan and it seems to me, I am no 6 expert in all this, but it seems to me the plans are 7 made, the damage is done and then automatically all 8 the parties go into this defensive mode and continue 9 a kind of divisive combat that lasts decades. 10 The socioeconomic impact from an 11 anthropological standpoint is this. Some of the most 12 capable, some of the most emotionally 13 psychologically-centred, the most productive people 14 in these communities, these impacted communities, are 15 devoting in some cases the balance of their 16 productive lives in doing battle over these issues. 17 They aren't building schools. They aren't teaching 18 school. They aren't building youth recreational 19 centres. They aren't serving on community -- 20 committees on impacting underage drinking and drug 21 abuse, they aren't doing these things. From an 22 anthropological standpoint, the creme de la creme, so 23 to speak, are being pulled out and devoted entirely 24 to simply trying to drain the swamp, trying to keep 25 themselves above water, to keep their people alive 4265 1 spiritually, psychologically. 2 Certainly the ultimate aim of mitigation 3 is to arrive at a solution or course of action that 4 is agreed on by all parties. The ultimate means for 5 effective mitigation is to seek, listen and 6 understand. And it's of utmost importance in doing 7 so to differentiate and respect the difference 8 between indigenous knowledge and value systems versus 9 those that are Eurocentric or even ethnocentric. By 10 that I mean -- 11 THE CHAIRMAN: Sir, can I interfere here. 12 I am just -- 13 MR. GILMORE: Going too long? 14 THE CHAIRMAN: -- wondering how much 15 longer you expect it's going to take for your 16 presentation? You did indicate you were going to 17 take 20 or 30 minutes at the most. We are now at an 18 hour and 15 minutes. 19 MR. GILMORE: Sorry, I didn't realize. 20 THE CHAIRMAN: And you did indicate you 21 had constraints and I'm just wondering if we'll get 22 to the questions? 23 MR. GILMORE: Well, I guess we've got 24 additional copies of this. What I can get to is 25 systemic issues. I think I can jump right into those 4266 1 and call it quits. I'm sorry I got a little excited 2 about this. You know, it's when you do something for 3 a living, you get kind of excited about it. You want 4 everybody to love your discipline and do it your way. 5 I'm going to jump right into some opinions and 6 evaluations. It's under the title of Systemic 7 Issues. 8 In other words, what are some of the 9 underlying causes? If there's problems as big as my 10 report says there are, what are some of the reasons? 11 What are some of the underlying causes? What brings 12 about these omissions? There doesn't appear to be -- 13 again maybe they are there and I didn't see them -- 14 to be a comprehensive set of standards and guidelines 15 conducting public archaeology or heritage resource 16 impact assessments in Manitoba, especially as it 17 reflects how to consult with indigenous communities. 18 Number two. Public archaeology in 19 Manitoba is arguably under-monitored and 20 under-evaluated other than by those who are 21 actually -- who actually plan and do portions or all 22 of the work. Normally, the normal function of an 23 archaeological assessment office is to ensure that 24 agencies, Crown corporations and contract 25 archaeologists maintain compliance with existing 4267 1 heritage resource laws and regulations. For the 2 archaeological assessment office to actually perform 3 or even be intimately close to the work that's done 4 for a client might result in a conflict of interest. 5 Additionally, by having the archaeological assessment 6 services office depend on the client such as Hydro, 7 even though I understand the money is moved through 8 Aboriginal Affairs in some cases, for significant 9 amounts of funding versus strictly overseeing 10 compliance matters dirties the waters even more. 11 In summary, there should be some form of 12 compliance oversight that remains totally separate 13 and independent from the ongoing interests of 14 Manitoba Hydro. And maybe there is and I haven't 15 been close enough to it. I was only associated up 16 there for a few weeks. 17 Judging from the content of these reports 18 and some other observations, some of the staff of the 19 Archaeological Assessment Services Office might not 20 be qualified or need retraining or more training; 21 therefore, perhaps that step might be justified. But 22 only by looking at the credentials, the past history 23 of attendance at workshops and training programs and 24 courses that were enrolled in in college are you 25 really going to perhaps know. 4268 1 Related to this topic, there doesn't 2 appear to be professional standards or a system. And 3 again, I am speaking -- I shouldn't imply that there 4 isn't one. For all I know, there is one. But how 5 are employees being evaluated, disciplined or 6 rewarded for extraordinarily good work performance. 7 Two, the hiring of staff appears to be by 8 appointment rather than competitive recruiting, 9 screening and hiring. This prevents the citizens of 10 Manitoba from knowing if they have hired a civil 11 servant who is best qualified and deserving of the 12 position. This can have a tendency to maintain the 13 status quo which can lead to few, if any, changes in 14 the way the agency carries out its mission. 15 At least one management level employee of 16 the Manitoba Cultural Heritage and Tourism Office 17 reports that institutionalized racism is a problem 18 and it may have been manifested and why only six 19 Aboriginal sites had been identified for special 20 protective status. Interestingly, the only time -- 21 well, that's irrelevant. 22 Some of Manitoba's university faculty and 23 academic staff is seemingly separate if not 24 indifferent to the struggle to protect the heritage 25 resources in Manitoba. A reason might be that some 4269 1 among them have benefited professionally and 2 financially by contracting with Hydro to perform work 3 that is in some way associated with the impact 4 assessment studies. 5 To open the system up to other qualified 6 private consulting firms, it might be worth -- this 7 might be worth investigating if whether or not 8 university connected contractors have utilized 9 publicly owned property or paid for student work time 10 or university staff. 11 And I only bring that up because there 12 was a big incident where I went to graduate school. 13 A couple of our 10 year faculty we're conducting 14 pretty profitable contract businesses out of the 15 department using graduate students, underpaid, I was 16 one of them. And one of the private consultants got 17 wind of this and after losing a lot of contracts to 18 this guy who was bidding against him on these big 19 jobs only find out, well hell, this guy, he got to 20 use the university laboratory and microscopes and how 21 could he compete? So one of the ways of solving the 22 problem in terms of equality, I believe a lot of 23 people believe in the free market economy, it's to 24 promote competition. But the people who have got a 25 leg up by having this connection to the publicly 4270 1 owned property or getting subsidized through a Crown 2 corporation, who can compete against that? So I 3 think that might be worthy of looking into. I'm not 4 saying that's occurring, but if it is, it might be 5 something to pursue in terms of improving overall 6 equality. 7 Overall, this problem has been perhaps 8 best described in a paper written by archaeologist 9 Peter Schmidt for the World Commission on Dams. Of 10 significant concern is that archaeologists are rarely 11 in the front lines to help mitigate and stop such 12 state abuses of cultural rights. In fact, 13 archaeologists may be contributing to such abuses by 14 their silence. 15 I took this statement to Dr. Jennifer 16 Brown from the University of Manitoba at dinner last 17 night with one of her colleagues and already we've 18 begun planning presentations we want to prepare for 19 upcoming conferences and how the University can 20 integrate itself more constructively in this whole 21 matter. So hopefully, we're going to get something 22 going. 23 The Manitoba Provincial Government does 24 not appear to address environmental justice issues as 25 one would expect, as I expected. The laws might be 4271 1 there but specifically, low income minority groups 2 are forced to make inordinate sacrifices for public 3 works projects when compared to higher income none 4 minorities. As noted by Kris Kristjanson, the 5 one-time assistant general managers of Manitoba Hydro 6 once said, I think this was in the seventies, in 7 reference to early plans for the Diversion Project, I 8 quote, 9 "The people of South Indian Lake would 10 be making a sacrifice for the rest of 11 the people of Manitoba." 12 Well put. My words, the only remaining 13 question seems to be if whether or not South Indian 14 Lake feel that there has been just compensation or 15 mitigation carried out for that sacrifice. This is 16 an issue that seems to "dog" most of the projects 17 carried out by Manitoba Hydro. 18 Indigenous people with reserve membership 19 that continue to practice and believe in traditional 20 life ways and belief systems appear to have been 21 categorically under-represented in employment or 22 participation in year-round historic preservation 23 activities. And based on my observations, they have 24 almost no input in policy making. 25 One of the things that we wanted to do 4272 1 with the provincial archaeology section and hydro and 2 all the stakeholders on what was happening up at 3 Cross Lake was to make sure that there was some Cree 4 people and Ojibway people on board to help screen and 5 hire the next manager of the Archaeological 6 Assessment Office. To have in the qualifications 7 required for that job knowledge of heritage rights of 8 indigenous people, demonstrated sensitivity to those 9 heritage rights so that people from a basic 10 problematic level are being represented, as an 11 example. 12 The policy concerning the reporting, 13 exhumation and reburial of found human remains isn't 14 consistent with the professional and ethical 15 standards including the Manitoba Cemetery Act, United 16 Nations Covenants of Indigenous Heritage Rights, et 17 cetera, et cetera. In a book titled "First Nations 18 and Hydroelectric Development in Northern Manitoba," 19 one of the contributors reported that material taken 20 from burial caches used for an educational display. 21 The question here is if whether or not permission was 22 given by traditional cultural authorities, recognized 23 traditional cultural authorities from these 24 communities if these items can be boxed up, even 25 replicas of them boxed up and put on display. 4273 1 Among some tribal communities, this is 2 repugnant, something that simply shouldn't be done. 3 The importance here is was the question asked. And 4 it might have been but it wasn't included in this 5 particular article. I would think it was. 6 It was reported that the archaeology lab 7 at Manitoba Museum is significantly behind in 8 processing archaeological materials. This relates 9 back to the Wuskwatim Project and most especially the 10 cultural context. If items haven't been written up 11 analyzed and reported on, there is some serious gaps 12 in the archaeological record in terms of defining how 13 we need to prioritize data recovery from specific 14 kinds of sites. 15 Summary and recommendations. Finally. I 16 sure thank you for your patience. I had no idea this 17 would take so long. This presenter's unbridled 18 opinion is that based on the quality and results of 19 the documents reviewed, there are omissions of 20 critically important information that might have led 21 to biased or erroneous conclusions about the 22 magnitude and extent of adverse impacts that these 23 projects will have on the heritage resources of 24 indigenous communities. Therefore, it is recommended 25 that qualified professionals undertake additional 4274 1 studies and additional consultations be done before 2 permits and licensing for the project is issued. 3 In all fairness to those who have a hand 4 in preparing these documents, which on the basis of 5 staffing levels I have observed, seriously 6 understaffed, overworked, I apologize to any part of 7 the critique that seem to have been unfair based on 8 your limited time and resources. And I especially 9 apologize given the time I had to review this project 10 if there's some documents I simply haven't seen. 11 So with that in mind, I conclude my 12 testimony. And I'll answer questions if they relate 13 to the presentation but if you're going to try to 14 burn me, I'm going to walk out of the room. I wasn't 15 asked to come here to have my character assassinated, 16 I was asked here to present testimony and exercise my 17 freedom of speech. 18 THE CHAIRMAN: Thank you, Mr. Gilmore. 19 Just before we proceed to the questions, we'll take a 20 very quick five minute break for the satisfying of 21 the pressing needs. 22 23 (PROCEEDINGS RECESSED AT 11:34 A.M. and 24 RECONVENED AT 11:41 A.M.) 25 4275 1 THE CHAIRMAN: Mr. Grewar, would you file 2 this document? 3 MR. GREWAR: Yes, Mr. Chairman. We would 4 file Public Testimony on Heritage Resources Inventory 5 and Impact Assessment for the Wuskwatim Projects as 6 filed by Will Gilmore as CNF-1019. 7 8 (EXHIBIT CNF-1019: Public Testimony on 9 Heritage Resources Inventory and Impact 10 Assessment for the Wuskwatim Projects as 11 filed by Will Gilmore) 12 13 THE CHAIRMAN: Thank you. Okay. We will 14 resume this portion and we are now at the time to 15 post questions to Mr. Gilmore. Questions? Mr. 16 Williams. 17 MR. WILLIAMS: Good morning, Mr. Gilmore. 18 MR. GILMORE: Good morning. 19 MR. WILLIAMS: My name is Byron Williams. 20 I am a lawyer with the Public Interest Law Centre and 21 our office represents the Consumers Association of 22 Canada, the Manitoba Branch and the Manitoba Society 23 of Seniors. I have a few questions for you and I 24 thought I would do what I rarely do of expert 25 witnesses and go right to your conclusion. I want to 4276 1 go to page 20 of your evidence. And you note at page 2 20, in fact you apologize if any part of your 3 critique was unfair because of the limited time as 4 well as the amount of information you had access to. 5 And would it be fair to say that you're acknowledging 6 that there may be a part of your criticism that is 7 unfair? 8 MR. GILMORE: My critique is based only 9 on the documents that I read, that I looked at. And 10 I said repeatedly that there may have -- there may be 11 documents -- there may have been work done. And 12 there probably has been, that because I am a relative 13 outsider have not looked at. So absolutely, I 14 apologized ahead of time to the preparers of these 15 documents if this work has been done. 16 If those communities are satisfied that, 17 for example, there has been the right questions 18 asked, the right sites identified for mitigation, 19 absolutely. 20 MR. WILLIAMS: So this is your opinion 21 based upon the information you have read but you are 22 open to the possibility -- 23 MR. GILMORE: Absolutely. 24 MR. WILLIAMS: -- that a part may be 25 wrong? 4277 1 MR. GILMORE: Oh sure, it's all in the 2 context. You know, it would be a different story if 3 I had been up here working with the folks that did 4 the surveys and the reports for the last three or 5 four years. I think it's -- you know, the report is 6 intended again not to be as much a critique as it is, 7 gee, these are some of the things that are kind of 8 glaringly not focused on in these reports. The 9 documentation especially that relates to 10 consultation. 11 MR. WILLIAMS: Okay. You mentioned that 12 you had reviewed three documents. Just so I'm 13 perfectly clear, what were those three documents? 14 MR. GILMORE: It was the Archaeological 15 Survey Project of Wuskwatim Lake. And the author 16 well, Brian Smith. 17 MR. WILLIAMS: Um-hum? 18 MR. GILMORE: And then a private, I 19 assume private consulting firm called Northern 20 Heritage Lights, or something like that, did the 21 Transmission Line Impact Assessment. And I don't 22 know who authored the other one but because some of 23 the definitions were exactly the same, I assumed -- 24 and I called the assessment office to find out who 25 wrote it and I talked to Brian and he didn't think 4278 1 that they had. So I assumed that both of the 2 assessment documents was done by the Northern Lights 3 firm. 4 MR. WILLIAMS: So there's the 5 archaeological survey project done by Mr. Smith and 6 the Transmission Impact Assessment done by Northern 7 Heritage Lights? 8 MR. GILMORE: Right. 9 MR. WILLIAMS: And the third document? 10 MR. GILMORE: And the generating station, 11 those three. 12 MR. WILLIAMS: Okay. And when did you 13 review those documents? 14 MR. GILMORE: A couple weeks ago I began. 15 I did it in stages. 16 MR. WILLIAMS: You were aware that there 17 was a written information request process during this 18 hearing, an interrogatory process is what it's 19 called. You weren't aware of that? 20 MR. GILMORE: No, I wasn't. 21 MR. WILLIAMS: So you weren't aware of 22 the opportunity to satisfy some of the questions you 23 might have had in terms of methodology through the 24 interrogatory process? 25 MR. GILMORE: No. 4279 1 MR. WILLIAMS: No? 2 MR. GILMORE: Personally, last time I was 3 here when -- I don't think we firmly decided if I was 4 going to testify or not, but when I was last here, I 5 asked Pat Badertscher personally in her office if I 6 was to testify or the things that I could discuss 7 that she would like to have me include in the 8 testimony, especially in terms of trying to beef up 9 the department, more funding, more staff. 10 MR. WILLIAMS: Did you take the 11 opportunity to review any of the other work that, for 12 example, Dr. Petch from Northern Heritage Lights has 13 done in terms of oral history, interview, technique, 14 methodology? 15 MR. GILMORE: No, not at all. No, I 16 didn't. 17 MR. WILLIAMS: Did you take the 18 opportunity to speak with Dr. Petch in terms of the 19 work she's done? 20 MR. GILMORE: No, I didn't. I didn't 21 find out that she was a principal in that firm until 22 I Googled her in last week. 23 MR. WILLIAMS: So you have not read any 24 of the monographs that she has prepared on oral 25 history interviews or -- 4280 1 MR. GILMORE: All I read is the impact 2 assessment. 3 MR. WILLIAMS: Okay. Thank you. Just 4 very briefly at page 16 of your evidence, you 5 reference or you indicate I believe that you are 6 relying upon the written reports and statements 7 you've read and received from the Manitoba 8 Archaeological Community. That's in the second last 9 paragraph. 10 MR. GILMORE: From the what community? 11 MR. WILLIAMS: The Manitoba 12 Archaeological Community? 13 MR. GILMORE: Right, right, right. 14 MR. WILLIAMS: Did you attach those 15 statements or written reports or at least a list of 16 them, the ones that you've read? 17 MR. GILMORE: I'm referring to the 18 reports that I referenced at the beginning of that, 19 the impact assessment and the archaeological survey. 20 MR. WILLIAMS: Okay. So your conclusions 21 at page 16 that are based upon only the impact 22 assessment and the reports of Northern Heritage 23 Lights? 24 MR. GILMORE: Um-hum. 25 MR. WILLIAMS: Okay. 4281 1 MR. GILMORE: Yeah, limited information. 2 MR. WILLIAMS: Now -- 3 MR. GILMORE: Could I take that one step 4 further? Normally on an impact assessment, the ones 5 I have been part of planning and preparing and 6 reading is it's written for the lay public, the 7 general public, especially the impacted communities. 8 Normally you like to pick up a document, usually in 9 the local library, and be able to open up the index 10 and everyone and anyone can read it. So they can 11 understand what the plan is, what the potential 12 impacts might be, what's been taken into 13 consideration, who from the community has been talked 14 to. It's not a document just in my mind, a document 15 to satisfy a bureaucratic need, it's a document that 16 should be dynamic and used by the community to 17 understand what's going on and give them an avenue 18 for recourse or discussion. And that's not what I 19 saw. Maybe I got the wrong impact assessment but 20 that's not what I saw. 21 MR. WILLIAMS: Yes. And, Mr. Gilmore, 22 just in the interest of brevity, I'll try and keep my 23 questions fairly tight. And with your permission and 24 compliance, maybe you can respond to the questions 25 that I ask. I would appreciate that. 4282 1 MR. GILMORE: Okay. 2 MR. WILLIAMS: Just so I'm clear. At 3 page 16, you refer to the written reports and 4 statements I have read and received from the Manitoba 5 Archaeological Community. And the only statements 6 and reports you are referring to are the documents 7 prepared by Mr. Smith and Northern Heritage Lights? 8 MR. GILMORE: Right. 9 MR. WILLIAMS: Okay. Now, I believe I 10 heard when you started your testimony that you had a 11 week to work on this project, although when you were 12 answering some of my earlier questions, you said you 13 had been on this for a couple of weeks. When did you 14 start working on this project and about how many 15 hours did you spend? 16 MR. GILMORE: Oh, I probably spent 100 17 hours. 18 MR. WILLIAMS: And when did you do that? 19 MR. GILMORE: On and off over the period 20 of -- when was I up here last? Mid-January. 21 MR. WILLIAMS: Okay. You indicate in the 22 brief kind of CV that was provided to all the 23 participants from the Canadian Nature Federation that 24 you can provide references and publications upon 25 request. And just for the benefit of my clients, I 4283 1 wonder if you could provide them with the, you don't 2 have to do it now, but with a list of the 3 publications you prepared for peer-reviewed or 4 academic refereed journals. Would you be able to do 5 that, sir? 6 MR. GILMORE: I don't have any 7 publications, refereed journals. 8 MR. WILLIAMS: Okay. Thank you. 9 MR. GILMORE: But I have about 60 10 archaeological survey reports, somewhere in that 11 neighbourhood. 12 MR. WILLIAMS: The reason I asked was we 13 tried to conduct a very brief literature research and 14 we weren't -- 15 MR. GILMORE: Like I said, you know, it's 16 a shame that there aren't more people from the 17 Manitoba Archaeological Society here. They should be 18 here. I shouldn't be sitting here. And it's a 19 question I'm posing to everybody in this room. Where 20 are they? It's a question I posed last night. Where 21 are they? 22 MR. WILLIAMS: And again, if we can just 23 stick to my questions and your answers, that would be 24 tremendous. 25 If we can move to page 2 of your 4284 1 evidence, and I'm referring to the fourth paragraph. 2 And it indicates you made two extended trips to Cross 3 Lake and I apologize for the pronunciation, but 4 Sipiwesk? 5 MR. GILMORE: Sipiwesk Lake. 6 MR. WILLIAMS: When you indicate extended 7 trips, were these field trips or what kind of trips? 8 MR. GILMORE: One was a trip, we took a 9 planned tour, myself along with representatives from 10 the National Defence Council I think, National 11 Resources Defence Council where we came up and went 12 out on parts of Sipiwesk Lake and looked at portions 13 of the lake that was being impacted. And it was to 14 gain support in the States for what was going on. 15 And what do they call it, a campaign of truth or a 16 campaign of shame or whatever it is. So I was up 17 there for I think two or three days. And the second 18 time I was up there was to come up and we ended up 19 going moose hunting for a few days. And then they 20 also took me over to a few places where they knew 21 there was sites and we briefly stopped at a couple of 22 sites. But there again, we spent a lot of time 23 talking about what Cross Lake had in mind as far as 24 developing a heritage preservation program of their 25 own. 4285 1 MR. WILLIAMS: Now, where is Sipiwesk 2 Lake? Is it on the Nelson River system? 3 MR. GILMORE: I believe it is. 4 MR. WILLIAMS: Do you believe or do you 5 know? 6 MR. GILMORE: I don't know for sure. I'm 7 not well oriented. I was in a boat on an eight hour 8 boat ride. My ass was sore but I don't remember 9 exactly where I was. 10 MR. WILLIAMS: Mine is getting rather 11 sore sitting here as well so I'll try and be brief. 12 How many times have you been to Nelson House? 13 MR. GILMORE: None at all. 14 MR. WILLIAMS: How about to the -- 15 MR. GILMORE: You know, I'm not going to 16 go through this. I told you at the beginning, I am 17 not a Canadian archaeologist. I haven't done any 18 work here. You know, if you're getting something out 19 of this, let's take it out in the hall and we'll 20 discuss it there. Why bore these people, trying to 21 let them know I'm not qualified technically in 22 Canada. I'm not. 23 MR. WILLIAMS: Well, I appreciate that. 24 And that's probably as good a summary as I need in 25 terms of my cross-examination. 4286 1 MR. GILMORE: If you want to discuss 2 this, we can discuss it, but I am not a qualified 3 Canadian archaeologist. 4 MR. WILLIAMS: Thank you. 5 MR. GILMORE: You're welcome. 6 THE CHAIRMAN: Other questions? 7 MS. MATTHEWS LEMIEUX: Hi, Mr. Gilmore. 8 My name is Valerie Matthews Lemieux and I'm counsel 9 for the Nisichawayasihk Cree Nation and I have a 10 number of questions that I'd like to ask you. 11 MR. GILMORE: Okay. 12 MS. MATTHEWS LEMIEUX: And I'm going to 13 go on the basis that there is certainly no intention 14 to be unfair to my clients in terms of your review of 15 the material or the opinions that you have expressed; 16 is that correct? 17 MR. GILMORE: I'm sorry? 18 MS. MATTHEWS LEMIEUX: You had no 19 intention to be unfair to my clients at all? 20 MR. GILMORE: No, I don't want to be 21 unfair. It was the last thing in the world I wanted 22 to do. 23 MS. MATTHEWS LEMIEUX: So what I want to 24 do then is take you through some of the materials 25 that we do have. And I'm still not exactly clear, 4287 1 even after having listened to the exchange you just 2 had with Mr. Williams, which documents you did 3 receive. You indicated that you had read the 4 material from Northern Lights Heritage in the 5 transmission and the GS. Did you read all of Volumes 6 1 in both the GS and the Transmission? 7 MR. GILMORE: All I read was the insert 8 on the transmission station that I took out of the 9 EIS. I think it was 8.0. 10 MS. MATTHEWS LEMIEUX: Okay. So -- 11 MR. GILMORE: And the other one was a 12 separate document. 13 MS. MATTHEWS LEMIEUX: In the GS, in the 14 generating station? 15 MR. GILMORE: The generating station, 16 yes. 17 MS. MATTHEWS LEMIEUX: And the generating 18 station EIS is a number of volumes. 19 MR. GILMORE: Okay. 20 MS. MATTHEWS LEMIEUX: So I'm just trying 21 to determine which ones you were provided with. 22 Because as you have indicated, it's possible that you 23 didn't have all of the information. 24 MR. GILMORE: It is possible. 25 MS. MATTHEWS LEMIEUX: Did you have 4288 1 Volume 1, like the entire Volume 1? Each one of 2 these binders are a volume. 3 MR. GILMORE: Like I said, I downloaded 4 it off the Internet. 5 MS. MATTHEWS LEMIEUX: Okay. 6 MR. GILMORE: It wasn't bound. 7 MS. MATTHEWS LEMIEUX: Were you provided 8 with a CD? It's all on CD Rom. 9 MR. GILMORE: Yeah. 10 MS. MATTHEWS LEMIEUX: So did you have 11 the complete EIS or only portions of it? 12 MR. GILMORE: I thought I had the 13 complete EIS. 14 MS. MATTHEWS LEMIEUX: Okay. Well, if 15 you had the complete EIS, what I want to do is just 16 go through your report and then refer you to various 17 sections in the EIS and see if you've had the 18 opportunity to review those parts? 19 MR. GILMORE: All right. 20 MS. MATTHEWS LEMIEUX: Just before we get 21 to that, though, what I'm also interested in knowing, 22 you mentioned a few moments ago that you prepared 23 some 60 surveys and that you had also been involved 24 in other environmental assessment processes, okay. 25 Was one of those the Arrowhead-Weston Line in 4289 1 Wisconsin? 2 MR. GILMORE: Portions of it, yeah. 3 MS. MATTHEWS LEMIEUX: And I just have 4 this brief resume that was provided by the Canadian 5 Nature Federation. And would that have been, and I'm 6 not maybe going to pronounce this correctly, but was 7 that when you were working for Lac Courte Oreilles? 8 MR. GILMORE: Lac Courte Oreilles, 9 um-hum. 10 MS. MATTHEWS LEMIEUX: And that's when 11 you were working for them, that you were involved 12 with the Arrowhead-Weston Line? Okay, I don't think 13 the Reporter can get it if you're nodding your head. 14 MR. GILMORE: Yeah. 15 MS. MATTHEWS LEMIEUX: Okay, good. 16 Thanks. Is that where you first met Pimicikamak, 17 down there? 18 MR. GILMORE: Um-hum. 19 MS. MATTHEWS LEMIEUX: Okay. And that 20 would have been around, it would have been around 21 2001? 22 MR. GILMORE: Yes, it was. 23 MS. MATTHEWS LEMIEUX: Now, is 24 Pimicikamak the only Cree Nation in Canada that 25 you've worked for? 4290 1 MR. GILMORE: No, I worked for the St. 2 Croix as well. 3 MS. MATTHEWS LEMIEUX: And for St. Croix, 4 when was that? 5 MR. GILMORE: For about two months last 6 year. I think it was last year. 7 MS. MATTHEWS LEMIEUX: Okay. In 2003? 8 MR. GILMORE: Right. 9 MS. MATTHEWS LEMIEUX: Now, from what I 10 understand when you were responding to the questions 11 that Mr. Williams was asking you, you haven't read 12 any of the interrogatory materials; is that correct? 13 MR. GILMORE: No, I haven't, no. 14 MS. MATTHEWS LEMIEUX: Okay. So you 15 wouldn't be aware of then the responses that were 16 given about the incorporation of traditional 17 knowledge in the process, in the EIS process? 18 MR. GILMORE: No. The other document I 19 read was that bound document that abbreviated the 20 findings. It was a large document that was being 21 handed out during the last series of meetings. What 22 was that called? It's kind of a consolidated 23 overview of the findings of the impact assessments. 24 MS. MATTHEWS LEMIEUX: Okay. From what I 25 understand from Ms. Whelan Enns, it would have been 4291 1 the presentation that was presented by NCN, Manitoba 2 Hydro and the environmental management team? 3 MR. GILMORE: Right. 4 MS. MATTHEWS LEMIEUX: At the beginning 5 of the hearing? 6 MR. GILMORE: Right. 7 MS. MATTHEWS LEMIEUX: On March 1? 8 MR. GILMORE: Right, right. 9 MS. MATTHEWS LEMIEUX: So you've read 10 that as well? 11 MR. GILMORE: Yeah, yeah. 12 MS. MATTHEWS LEMIEUX: That would be this 13 document? 14 MR. GILMORE: That document, yeah. 15 MS. MATTHEWS LEMIEUX: From your review 16 of the materials, are you aware how traditional 17 knowledge has been dealt with throughout the course 18 of this process? 19 MR. GILMORE: No, I haven't. 20 MS. MATTHEWS LEMIEUX: You are not, okay. 21 Just from listening to your presentation, would it be 22 fair to say that the bottom line, as far as you are 23 concerned, is that potentially affected Aboriginal 24 people should be involved in the project from the 25 beginning? And by that I mean throughout the 4292 1 planning of the project, through the scoping of what 2 will be studied, through the carrying out of the 3 studies, reviewing the conclusions, mitigation, 4 construction and then also into post-project 5 monitoring? 6 MR. GILMORE: Right. 7 MS. MATTHEWS LEMIEUX: Is that basically 8 the bottom line of what you're telling us? 9 MR. GILMORE: Basically the bottom line, 10 right. By recognized traditional cultural 11 authorities who may or may not be elected council 12 members. 13 MS. MATTHEWS LEMIEUX: Right. But 14 essentially that's what you're saying? 15 MR. GILMORE: Yeah, you know. 16 MS. MATTHEWS LEMIEUX: The Aboriginal 17 peoples should be involved? 18 MR. GILMORE: Right. But you know, I'm 19 not that intimately involved. But sometimes the 20 people who are representing a community may or may 21 not be sensitive to traditional cultural issues. It 22 may be economic issues that they are more concerned 23 about. 24 MS. MATTHEWS LEMIEUX: Okay. 25 MR. GILMORE: And that's why the first 4293 1 step in effective consultation is to integrate that 2 community and find out who those recognized 3 traditional cultural authorities are. 4 MS. MATTHEWS LEMIEUX: Okay. Now, you 5 had said that you have never been to Nelson House? 6 MR. GILMORE: No, I have never been 7 there. 8 MS. MATTHEWS LEMIEUX: And I don't know 9 if throughout the course of these proceedings if 10 you've had the opportunity to speak with Councillor 11 Darcy Linklater? 12 MR. GILMORE: No. 13 MS. MATTHEWS LEMIEUX: What about Jimmy 14 D. Spence? 15 MR. GILMORE: I've spoken to none of 16 them. My testimony again is based on very limited 17 information. If people here can say all this work 18 has been done, that's fine. I mean I'm sorry I 19 brought this stuff up. 20 MS. MATTHEWS LEMIEUX: I'm just trying 21 to, as I say, go through what you have read and what 22 you do know in terms of the materials. 23 MR. GILMORE: I've only read several 24 things relative to this specific area. 25 MS. MATTHEWS LEMIEUX: Are you aware that 4294 1 NCN has developed its own definition for traditional 2 knowledge and that that was incorporated into the 3 EIS? 4 MR. GILMORE: No, I didn't see that in 5 the -- 6 MS. MATTHEWS LEMIEUX: You didn't see 7 that in the materials? 8 MR. GILMORE: Well, I didn't see it in 9 the context of the impact assessment. 10 MS. MATTHEWS LEMIEUX: Are you aware that 11 when the EIS, like from your reading of the EIS both 12 for transmission and for the generating station, that 13 traditional knowledge was incorporated along with 14 western scientific knowledge throughout? 15 MR. GILMORE: Well, how are you defining 16 indigenous knowledge, traditional knowledge? 17 MS. MATTHEWS LEMIEUX: That's what I was 18 just going to take you to actually is the definition 19 that my clients had developed and that has been used. 20 If you'll just give me a second. 21 MR. GILMORE: And then how is that 22 manifested in the impact assessment? 23 MS. MATTHEWS LEMIEUX: Okay. This is 24 found actually in Volume 1 of the Generating Station 25 which is one of the documents I think you had said 4295 1 you had had occasion to obtain. And it's on page 2 2-4. Just a second, please. Okay. And what it 3 indicates on page 2-4 is that to NCN, traditional 4 knowledge is the observation and experience of the 5 land, Aboriginal law regarding how the environment 6 works, the understanding of NCN's place in the world, 7 how things are connected including spirituality and 8 the relationship to the land, the goals and 9 aspirations of NCN, the outlook on the proposed 10 projects, concerns, acceptability, NCN's identity and 11 culture, the stewardship of the land and a base for 12 natural resource management. So that's the 13 definition that NCN has used but you weren't aware of 14 that? No? 15 MR. GILMORE: No. 16 MS. MATTHEWS LEMIEUX: Okay. Are you 17 aware that the program for the field studies and the 18 terms of reference for those were all also jointly 19 developed by NCN and Manitoba Hydro with the 20 assistance of a whole team of professionals? 21 MR. GILMORE: No, I am not. By the way, 22 the definition I know of of Indigenous knowledge has 23 got one important addition that wasn't included in 24 that and that's as it reflects in the processes and 25 protocols of, in this case, the way consultation is 4296 1 carried out. In other words, we traditionally say 2 let's sit down in our office and we've got to be out 3 of here by 11:30 and we want this and this and this 4 covered. Indigenous knowledge, using a broader 5 definition, asks what the process and protocol should 6 be. And in some cases, issues need to be revisited 7 many times. 8 But typically in doing your eccentric 9 kinds of consultation, we set the boundaries, we set 10 the time limits, we set scope. That's not 11 determined. 12 MS. MATTHEWS LEMIEUX: But if there was 13 that ongoing process -- 14 MR. GILMORE: That's great. That's 15 super. 16 MS. MATTHEWS LEMIEUX: -- where the 17 Aboriginal people were involved right from the 18 beginning and are going to be involved throughout the 19 process, then that would be acceptable to you? 20 MR. GILMORE: That's super. That's 21 super. Has this area been impacted by the way? Has 22 Wuskwatim been impacted at all yet physically? I 23 mean is there any erosion going on there because of 24 Hydro or anything like that? Is that going on now? 25 MS. MATTHEWS LEMIEUX: I'm just wondering 4297 1 if you have had a chance to read the materials to 2 determine the answers to those questions yourself? 3 MR. GILMORE: Well, like I said, what 4 does that overview say that was presented by Hydro in 5 terms of the impact that this project was going to 6 have on living communities? What does that say? 7 MS. MATTHEWS LEMIEUX: Sir, I think maybe 8 if I could just ask you to respond to -- 9 MR. GILMORE: No, I'd like you to say, 10 what does that say? Does it say it's not going to 11 have an impact on living communities? 12 MS. MATTHEWS LEMIEUX: At this stage, I 13 am trying to ask you some questions. And I'd 14 appreciate it if maybe we could just stick to my 15 questions right now. 16 Firstly, in terms of dealing with the 17 Wuskwatim project, what is your understanding of the 18 project? That it's already under way? Is that your 19 understanding? 20 MR. GILMORE: There are some impacts that 21 are going on already right now. 22 MS. MATTHEWS LEMIEUX: From the Wuskwatim 23 Project? 24 MR. GILMORE: Some predictable impacts. 25 MS. MATTHEWS LEMIEUX: But from the 4298 1 Wuskwatim Project already? 2 MR. GILMORE: From the Wuskwatim project, 3 right. 4 MS. MATTHEWS LEMIEUX: And is it your 5 understanding then that construction has already 6 started? 7 MR. GILMORE: I don't know. Based on 8 when the -- whatever the dates are in the documents, 9 some of them are a year old, two years old, three 10 years old. I assume some of it had started. 11 MS. MATTHEWS LEMIEUX: But you're not 12 sure if construction has already started? 13 MR. GILMORE: No, I'm not sure, no. Are 14 the designs finished, completed, or alternatives 15 considered or stuff like that based on -- 16 MS. MATTHEWS LEMIEUX: Are you aware from 17 reviewing the material, and I'll just give you one 18 example, that because of the involvement of the 19 Nisichawayasihk Cree Nation that a low-head design 20 was chosen for the Wuskwatim Project? Are you aware 21 of that? 22 MR. GILMORE: No, I wasn't. 23 MS. MATTHEWS LEMIEUX: Okay. I am going 24 along in your report and I'm looking now at -- 25 MR. GILMORE: I have got to get going 4299 1 here pretty quick. I've got to catch a plane at the 2 airport. 3 MS. MATTHEWS LEMIEUX: What time is your 4 plane? 5 MR. GILMORE: Two, two-something. They 6 want you there ahead of time. 7 MS. MATTHEWS LEMIEUX: Well, I'm not sure 8 then how the Commission would like to proceed because 9 we've made it very clear a while ago that we had to 10 have the opportunity to be able to ask questions. We 11 just received this report yesterday. 12 MR. GILMORE: Well, I was supposed to do 13 this yesterday. 14 THE CHAIRMAN: Yes, but we will adjourn 15 at 12:30. And presumably that will give you plenty 16 of time and therefore the questioning can go on. 17 MR. GILMORE: All right. 18 MS. MATTHEWS LEMIEUX: And if we are not 19 concluded, then presumably we'll have to make 20 arrangements for Mr. Gilmore to come back. In any 21 event, I'll keep going and we'll see how far we can 22 get. 23 I'm looking at page 3 of your report. 24 And it's where you talk about until such time as Cree 25 or Ojibway peoples have the ability to manage their 4300 1 heritage resources themselves, that it's the 2 government's responsibility. I'm assuming that you 3 are not aware, from what you've said, that NCN has 4 been managing its own heritage resources for a number 5 of years? 6 MR. GILMORE: In what definition? 7 MS. MATTHEWS LEMIEUX: Are you aware of 8 the programs that NCN has with Manitoba Hydro and 9 with the Province of Manitoba for the management of 10 its heritage resources? 11 MR. GILMORE: No, I'm not. No, I don't. 12 MS. MATTHEWS LEMIEUX: So this is a 13 general statement then that you've made here. It 14 doesn't relate specifically to NCN? 15 MR. GILMORE: No. Say the statement 16 again? 17 MS. MATTHEWS LEMIEUX: Well, I'm just 18 reading from your report. 19 MR. GILMORE: I'm all discombobulated 20 here. I don't like this. 21 MS. MATTHEWS LEMIEUX: I'm looking at 22 page 3 of your report. 23 MR. GILMORE: This is excruciating. Go 24 ahead. 25 MS. MATTHEWS LEMIEUX: Maybe if you just 4301 1 turn to it, then you'd have it right there in front 2 of you if you want. But it says, 3 "Until the Cree and Ojibway peoples 4 are able to manage the resource 5 themselves, one of the government's 6 fiduciary responsibilities is to hold 7 them in trust." 8 And I'd asked you whether you were aware that NCN has 9 been managing its resources for quite some period of 10 time? 11 MR. GILMORE: What does management mean 12 to you? 13 MS. MATTHEWS LEMIEUX: It has a program, 14 as I said, with the Province of Manitoba and also 15 with Manitoba Hydro where it has been dealing with 16 its own resources. 17 MR. GILMORE: What does that mean? 18 MS. MATTHEWS LEMIEUX: Are you aware of 19 that program? 20 MR. GILMORE: No, I am not. 21 MS. MATTHEWS LEMIEUX: You're not aware 22 of it? 23 MR. GILMORE: No. What does it mean? 24 What management are you talking about? Do they have 25 a training program for archaeological technicians? 4302 1 Are they processing their own materials in their own 2 lab. Are they doing ArcView Database management? 3 What are they doing? 4 MS. MATTHEWS LEMIEUX: I'm just going to 5 go on because we're short of time here. But looking 6 at it, Eva Marie Linklater? 7 MR. GILMORE: Right. 8 MS. MATTHEWS LEMIEUX: Just for your 9 information, her thesis has actually been 10 incorporated and then she's done an updating of her 11 material and it was published in 1997. 12 MR. GILMORE: Um-hum. 13 MS. MATTHEWS LEMIEUX: And we could 14 certainly ensure that you are provided with a copy of 15 that but I am assuming that you haven't seen the 1997 16 article by -- 17 MR. GILMORE: No, I didn't. I saw the 18 1994. 19 MS. MATTHEWS LEMIEUX: So you would have 20 seen the thesis but you haven't seen the more recent 21 article by her? 22 MR. GILMORE: No. In fact, the thesis 23 was given to me by Archaeological Assessment. 24 MS. MATTHEWS LEMIEUX: Okay. And from 25 what you've read in the masters thesis, you would 4303 1 agree with me that the focus of that thesis was the 2 Churchill River Diversion Project, not the Wuskwatim 3 Project; is that correct? 4 MR. GILMORE: Yeah. But, you know, the 5 basis of what I read, like I said, in one part of my 6 testimony, there seems some real similarities. There 7 appear to be some real similarities. You know, 8 again, I'm putting a lot of weight on this document 9 that although as abbreviated as it was, it makes a 10 statement to the general public about whether or not 11 heritage resources are going to be impacted. 12 And the impression you get from reading 13 the document, it's going to be very limited. 14 MS. MATTHEWS LEMIEUX: Okay. From what 15 you've told us and in your presentation, I gather 16 that the first eight pages or so of your report refer 17 to the Smith and Brownlee material that you said you 18 read; is that correct? 19 MR. GILMORE: Yeah, right. 20 MS. MATTHEWS LEMIEUX: So where you've 21 made all these various or I should say your 22 presentation, then as it outlines a number of 23 concerns in those first eight pages relates to this 24 study, not to the EIS; is that right? 25 MR. GILMORE: No, right, right. 4304 1 MS. MATTHEWS LEMIEUX: Okay. Are you 2 aware that there were a number of key interviews that 3 were carried out for preparation of the EIS? 4 MR. GILMORE: No. 5 MS. MATTHEWS LEMIEUX: Okay. Are you 6 aware that there were interviews with resource 7 harvesters? 8 MR. GILMORE: No. 9 MS. MATTHEWS LEMIEUX: Are you aware that 10 there was a resource calendar program and interviews 11 about the usage of country foods? 12 MR. GILMORE: No. 13 MS. MATTHEWS LEMIEUX: Okay. Are you 14 aware that there were opinion surveys that were 15 conducted. For example, in the Community of Nelson 16 House, there's approximately 400 households and there 17 was at least one person in 377 households that were 18 interviewed? 19 MR. GILMORE: No. 20 MS. MATTHEWS LEMIEUX: Okay. Are you 21 aware that there were interviews and opinion surveys 22 conducted among NCN members who do not live in the 23 Community of Nelson House but live elsewhere, for 24 example, South Indian Lake, Thompson, Winnipeg? 25 MR. GILMORE: No. 4305 1 MS. MATTHEWS LEMIEUX: Okay. Were none 2 of those materials provided to you in the EIS? They 3 are all in the EIS. 4 MR. GILMORE: Like I said, it's supposed 5 to be a week's work and I did what I thought was a 6 snapshot. 7 MS. MATTHEWS LEMIEUX: Again, then just 8 to go through this. 9 MR. GILMORE: I didn't read the whole 10 EIS. No, I didn't. 11 MS. MATTHEWS LEMIEUX: Okay. 12 MR. GILMORE: No. 13 MS. MATTHEWS LEMIEUX: That may be why -- 14 MR. GILMORE: You know, like I said, when 15 you do a socioeconomic assessment, some of the 16 material can and should be carried over into the 17 heritage resources or at least referenced. 18 MS. MATTHEWS LEMIEUX: Right. So in 19 fact, if you had had the opportunity to read all of 20 the other materials, you may have been able to find 21 those references throughout the other disciplines? 22 MR. GILMORE: Right, right. 23 MS. MATTHEWS LEMIEUX: Now you had 24 indicated that it was your impression, although you 25 might be wrong on this, that there were no guidelines 4306 1 and there were no policies that were in place for the 2 conducting of heritage assessments in the Province of 3 Manitoba? 4 MR. GILMORE: I had asked several times 5 when I was working with the staff and archaeological 6 assessment offices out there, the archaeology 7 section, if there were guidelines. I was given 8 guidelines for conducting archaeological assessment 9 but they seem to include mostly forms and very basic 10 format for conducting an archaeological survey. 11 MS. MATTHEWS LEMIEUX: Do you recall if 12 one of the documents you were provided with was 13 Guidelines for Conducting a Heritage Resource Impact 14 Assessment? 15 MR. GILMORE: Right, right. 16 MS. MATTHEWS LEMIEUX: So that's one of 17 the documents that you're talking about. And you 18 read that document? 19 MR. GILMORE: I didn't read it line for 20 line. I went through it a couple of times looking 21 for key items, key references to, for example, the 22 definition of a reconnaissance survey versus an 23 intensive survey definition of how informant 24 interviews should be conducted, how a report should 25 be prepared using a uniform format. So all 4307 1 archaeologists are turning in basically the same 2 kinds of reports with the same kind of information. 3 That's what I was looking for, some kind 4 of -- some kind of a guide book on how to begin and 5 end and report on an investigation and an assessment 6 study. 7 MS. MATTHEWS LEMIEUX: Was another one of 8 the documents you were provided the guidelines that 9 actually for the content and format of a heritage 10 resource impact assessment? Are you familiar with 11 that one separate from the first one? 12 MR. GILMORE: No, I didn't -- 13 MS. MATTHEWS LEMIEUX: You didn't see 14 that one? 15 MR. GILMORE: No. 16 MS. MATTHEWS LEMIEUX: You have listed on 17 page 6 of your report a number of documents that deal 18 with essentially codes of conduct for archaeologists. 19 Are you familiar with the Society for Applied 20 Anthropologists and the International Congress of 21 Arctic Social Scientists documents? 22 MR. GILMORE: No, I am not. 23 MS. MATTHEWS LEMIEUX: Okay. And you've 24 never seen the Statement of Professional and Ethical 25 Responsibilities for the Society of Applied 4308 1 Anthropology for Canadians? 2 MR. GILMORE: No, I didn't see that, no. 3 MS. MATTHEWS LEMIEUX: Now, the parts of 4 your report that deal with issues of burial sites, 5 are you familiar at all with the process that's 6 followed by NCN in relation to these issues which we 7 all agree are sensitive issues? 8 MR. GILMORE: I didn't know they had a 9 separate process aside from the policy that the 10 archaeological or archaeology section uses. No, I 11 didn't know that. 12 MS. MATTHEWS LEMIEUX: Okay. Well, I'm 13 just going to tell you a little bit about it since 14 you don't know about it. But when remains are found 15 at a site, there's a ceremony that's performed at the 16 site and the site is marked with a white flag. And 17 there's tobacco that's placed at that site. 18 MR. GILMORE: Um-hum. 19 MS. MATTHEWS LEMIEUX: That's one of the 20 first steps. And then before archaeologists come in, 21 there are ceremonies that are held at that site where 22 there's forgiveness asked for disturbing the resting 23 place. 24 MR. GILMORE: Um-hum. 25 MS. MATTHEWS LEMIEUX: You're not aware 4309 1 of that? 2 MR. GILMORE: No, I'm not aware of it at 3 all. 4 MS. MATTHEWS LEMIEUX: Are you aware then 5 in terms of reburial, that there's very very strict 6 ceremonies that are also held and followed for the 7 reburial? 8 MR. GILMORE: Uh-uh. 9 MS. MATTHEWS LEMIEUX: You are not aware 10 that there are sweat lodge ceremonies performed? 11 MR. GILMORE: No. 12 MS. MATTHEWS LEMIEUX: You are not aware 13 then that there's a special place in the cemetery in 14 Nelson House? 15 MR. GILMORE: No. 16 MS. MATTHEWS LEMIEUX: So your comments 17 then in your report are not directed then towards NCN 18 at all in terms of these statements that you've made 19 or opinions that you've expressed? 20 MR. GILMORE: I've got no information 21 from NCN to go on, no, uh-uh. 22 MS. MATTHEWS LEMIEUX: Now, on page 7 of 23 your report, you indicate that from what you can see, 24 there was little or no library or archival 25 investigation carried out. And then you go through 4310 1 and you indicate that the report did not include a 2 historic or archaeological context of the survey 3 region. Again, were you referring to the -- 4 MR. GILMORE: Survey report. 5 MS. MATTHEWS LEMIEUX: The 1999 report? 6 MR. GILMORE: Right. 7 MS. MATTHEWS LEMIEUX: Did you have a 8 chance to take a look at Appendix 1 in Volume 9 of 9 the Generating Station EIS where there was the 10 characterization study? Did you see that? 11 MR. GILMORE: I think I did, yeah, yeah. 12 MS. MATTHEWS LEMIEUX: So you did see the 13 area characterization? 14 MR. GILMORE: That's what it was 15 labeled, yeah. 16 MS. MATTHEWS LEMIEUX: Well, it's 17 labeled Appendix 1. 18 MR. GILMORE: There was a context in one 19 of those reports, yeah, a fairly detailed context. 20 MS. MATTHEWS LEMIEUX: So if it was a 21 fairly detailed context then I guess if I'm looking 22 at page 7, your comments there are simply not related 23 to the EIS, they just relate to the other report? 24 MR. GILMORE: Right. 25 MS. MATTHEWS LEMIEUX: Now, you referred 4311 1 to a number of, and I am going to page 9 of your 2 report right now. And you're talking about, on pages 3 9 and 10, various documents and Acts that need to be 4 considered when an assessment is carried out in 5 Canada? 6 MR. GILMORE: Why don't you guys schedule 7 the archaeologists to come up here and do a 8 counterpoint to this? Why are you doing this here? 9 Let them just present. 10 MS. MATTHEWS LEMIEUX: Well, I think that 11 it's a presentation in the process although I am not 12 going to speak for the Commission. 13 MR. GILMORE: You're going to extend 14 this, aren't you? Why don't you critique, formally 15 critique my presentation? I welcome that, rather 16 than having me sit here and try to make me look like 17 some kind of toad. Like I said, I didn't do this to 18 cut anybody off at the knees. 19 MS. MATTHEWS LEMIEUX: And that's what I 20 said to you at the beginning. I'm assuming -- 21 MR. GILMORE: I'm telling you what the 22 weaknesses and the shortcomings of it and what you're 23 doing now is I guess earning your money, but you 24 don't have to do that. 25 MS. MATTHEWS LEMIEUX: Okay. 4312 1 MR. GILMORE: You don't have to do that. 2 I admit if I don't have all the information, there 3 may be faults, serious faults with my critique. 4 That's in the report. 5 MS. MATTHEWS LEMIEUX: I guess where 6 we -- 7 MR. GILMORE: And if everybody in 8 Wuskwatim area is satisfied with what's been done, 9 this is a moot point. This is a waste of time and 10 money. It's a waste of my time. But if you can 11 canvass the community and everybody in the community 12 says yeah, I'm not concerned, I'm not worried, the 13 mitigation has been done, there's been alternative 14 planning done, we've been involved, we've been looked 15 at as stakeholders, why take this any further? 16 MS. MATTHEWS LEMIEUX: Okay. Well, all 17 I'm trying to do is follow the steps that have been 18 laid out by the Commission which is that if there's a 19 presentation, then we're able to ask questions. 20 MR. GILMORE: And I have got to catch a 21 plane. I seriously do. I've got to get there early. 22 MS. MATTHEWS LEMIEUX: I believe the 23 Chair had indicated that we would go for at least 24 another 10 minutes. 25 (UNKNOWN SPEAKER): Somebody else would 4313 1 like to ask questions. 2 MR. GILMORE: Yeah, why don't you let 3 somebody else ask a question. 4 MS. MATTHEWS LEMIEUX: I'm not finished 5 asking my questions yet and I believe that at this 6 point, I have got the floor. 7 MR. GILMORE: That's correct. 8 (UNKNOWN SPEAKER): Somebody else would 9 like to ask questions. 10 THE CHAIRMAN: Please be quiet in the 11 room. 12 MS. MATTHEWS LEMIEUX: Just in terms of 13 going over this then with respect to the scoping, and 14 I'm looking at page 10 of your report. 15 MR. GILMORE: Yeah. 16 MS. MATTHEWS LEMIEUX: Okay. On page 10, 17 you outline that informal scoping is very important. 18 I'm just wondering how were you using the words 19 "informal scoping" there? 20 MR. GILMORE: It's when a bunch of people 21 who are going to do the work, a bunch of people who 22 were being impacted get together. It can be either 23 over a campfire or it could be in an office, it could 24 be in a classroom, and begin to talk about what 25 things we need to concern ourselves with, what are 4314 1 important to the community, what kind of impacts we 2 can anticipate. In other words, just trying to get a 3 big picture. And who should be involved. Who is 4 concerned. You know, if the community says gee, I 5 don't want any part of it, we have elected our 6 government leaders, that's their job, fine. But if 7 there are people who don't feel that their interests 8 are being represented, part of that informal scoping 9 is to invite them into the process. 10 In other words, I guess I have been 11 around long enough and have worked hard enough at 12 dispelling this belief that community is as 13 complex -- an Indigenous community is as complex as 14 any other community. There are various interest 15 groups that need to be represented. There isn't this 16 kind of uniform political and ideological thought or 17 knowledge base. It's much more complex than that. 18 People need to recognize that. And that's what 19 informal scoping is about. 20 MS. MATTHEWS LEMIEUX: So essentially 21 what it is it's where the people who are going to be 22 affected? 23 MR. GILMORE: Who are interested, 24 concerned. 25 MS. MATTHEWS LEMIEUX: Are the ones who 4315 1 are then involved in helping to plan the actual 2 studies that ought to be carried out? 3 MR. GILMORE: No. Well, in the beginning 4 stages, what they are supposed to be doing is having 5 their interests represented. You know, who is being 6 impacted? What's going to impact? Who do we need to 7 get involved? What are some of the basic tenants of 8 law that have to be considered. It's starting out 9 with a big picture and then honing in through a more 10 formal process. And again, if that's been done, my 11 compliments. That's great. 12 MS. MATTHEWS LEMIEUX: Okay. And I'm 13 just going to try and go through some of the rest of 14 these issues quite quickly. On page 12, you refer to 15 a glaring oversight being that there was no archival 16 research, informant interviews or archaeological 17 surveys done? 18 MR. GILMORE: On what's that? On the 19 transmission line? 20 MS. MATTHEWS LEMIEUX: Yes, um-hum. 21 MR. GILMORE: It could be in another 22 volume. And I said during my presentation, I'd be 23 surprised if they weren't done already. 24 MS. MATTHEWS LEMIEUX: And just so that 25 you know that in fact they are referring to in 4316 1 chapters four and seven which I think were two of the 2 ones that you indicated you didn't have. 3 MR. GILMORE: Um-hum. 4 MS. MATTHEWS LEMIEUX: What about the 5 actual -- 6 MR. GILMORE: Has that whole line been 7 surveyed, just out of curiosity, ma'am? 8 MS. MATTHEWS LEMIEUX: I gather you 9 haven't had access to any of the transcripts from the 10 hearings? 11 MR. GILMORE: No. 12 MS. MATTHEWS LEMIEUX: Okay. Actually 13 again -- 14 MR. GILMORE: Some of them. A few, a 15 select few have been on the Internet, yeah. 16 MS. MATTHEWS LEMIEUX: I think you'll 17 find that the answers that you are seeking are 18 probably in that material and I've only got about 19 another five minutes. 20 MR. GILMORE: Is somebody here who has 21 done that project? 22 MS. MATTHEWS LEMIEUX: I'd like to just 23 go on to the next one. On page 14, you indicate that 24 that you are critical in this part of the 25 presentation about the references that are being made 4317 1 to elders and that there's not documentation about 2 exactly who those people were, et cetera. You'd 3 agree with me that a lot of this kind of information 4 in this area is very sensitive and that it's often 5 subject to confidentiality arrangements; is that 6 correct? 7 MR. GILMORE: Sure. I mentioned that 8 twice in my -- yeah, absolutely. Like I say, 9 usually, I don't know, maybe things are different in 10 Canada. But you know, some places, some reservations 11 you go to and you say, well, I talked to so-and-so 12 and he said this about that. And an elder will say, 13 you talked to him? I mean geez, he's a 14 casino-cultured dude. He doesn't know a damn thing 15 about what's going on here. He just moved back here. 16 He's been gone for 30 years. So you really have to 17 dig and find out from a broad spectrum of community 18 members who has the authority, who has the support of 19 a broad spectrum of the community on these kinds of 20 things. 21 I mean I found no matter where I worked, 22 you know, in communities that have been especially 23 pressed and low income for a long period of time, 24 there's always a segment of those communities that 25 jump at an opportunity and almost rightfully so. And 4318 1 sometimes, unknowingly or knowingly may not have the 2 best interest of the broad spectrum of the community 3 in mind. But that's that way in every community. 4 MS. MATTHEWS LEMIEUX: Okay. Just in 5 terms of some of the rest of the issues that you've 6 raised in your report. You referred to, and this is 7 at the bottom of page 18 and 19, and I'm going to the 8 top of page 19 where you say, 9 "The use of remote sensing, computer 10 generated database management systems, 11 and ground-positioning systems are 12 just three examples of what's 13 missing." 14 Again, I'm assuming that you didn't have 15 access to the materials where you would find the 16 references that would indicate all three of these 17 things were done in the study? 18 MR. GILMORE: Are all those sites GPS? 19 MS. MATTHEWS LEMIEUX: There's a GPS. 20 MR. GILMORE: I know there was a mention 21 of some GPS but are all the sites GPS? 22 MS. MATTHEWS LEMIEUX: If you take a 23 look, you'll actually find that in one of the 24 appendices, which is appendix, there's a detailed 25 appendix, Appendix 2 in Volume 9, the GPS coordinates 4319 1 are there. 2 MR. GILMORE: All the ones on Sipiwesk 3 Lake? 4 MS. MATTHEWS LEMIEUX: We're dealing with 5 the Wuskwatim Project here. 6 MR. GILMORE: I mean Wuskwatim Lake? 7 MS. MATTHEWS LEMIEUX: Appendix 2. So I 8 am assuming that you didn't have access to that 9 material? 10 MR. GILMORE: I thought that was in a 11 different part of the project area. I didn't think 12 it was on that, the entire lake system that's going 13 to be impacted. So you are saying every recorded 14 site -- 15 MS. MATTHEWS LEMIEUX: What I am 16 saying -- 17 MR. GILMORE: -- in the area of potential 18 effect has been GPS'd. 19 MS. MATTHEWS LEMIEUX: -- your report 20 indicates that there are flaws in the study because 21 none of these things were done. And I'm simply 22 pointing out to you -- 23 MR. GILMORE: I said, well, in the survey 24 report I don't think those sites were GPS'd. 25 MS. MATTHEWS LEMIEUX: Well, the only 4320 1 thing -- okay. Now I'm really confused by what 2 you're telling us. 3 MR. GILMORE: Right. 4 MS. MATTHEWS LEMIEUX: Because I thought 5 the first eight pages of your material dealt with the 6 Brownlee report but the rest of it was referring to 7 the EIS? 8 MR. GILMORE: Right. 9 MS. MATTHEWS LEMIEUX: So the statements 10 I am referring to are at the top of page 19. So were 11 you referring to the Brownlee report here or -- 12 MR. GILMORE: I was mistaken. You are 13 right. I don't know why I said that because -- but 14 the question is are all the sites in the impact area 15 GPS'd? Because I know one of the things that's 16 happening, again my only experiences on Sipiwesk 17 Lake, islands are being totally washed away and sites 18 are being totally washed away and unless they are 19 GPS'd, you really can't go out and identify how much 20 of the sites have been destroyed. 21 MS. MATTHEWS LEMIEUX: But again, you 22 haven't had a chance to take a look at Appendix 2? 23 MR. GILMORE: No, I didn't. 24 MS. WHELAN ENNS: Mr. Chair, we need to 25 go to the airport. It's an international flight so 4321 1 the time in advance of the flight is an issue. There 2 are also, as far as I can judge, aside from of course 3 questions I may have for Mr. Gilmore, a number of 4 people in the room who would wish to ask him 5 questions. 6 THE CHAIRMAN: So what are you telling 7 me? Are you telling me that we should delay that 8 flight? What is it that you're telling me? 9 MS. WHELAN ENNS: I'm asking you if Mr. 10 Gilmore could please catch his plane and I'm asking 11 the Chair to -- 12 THE CHAIRMAN: I was just going to 13 adjourn for lunch and we'll have to determine from 14 here on -- 15 MR. GILMORE: Hey, don't I get a say-so 16 in this? I have commitments. 17 THE CHAIRMAN: I realize you have to 18 catch a plane and you have to leave because of that. 19 And we will adjourn at this time. We will discuss in 20 terms of procedure what follows. 21 MR. GILMORE: All right. Sorry I gave 22 you a bad time. I don't like this stuff. I know 23 there's people out there enjoying it, right, Dale? 24 THE CHAIRMAN: The hearing is adjourned 25 until 1:30. 4322 1 (PROCEEDINGS RECESSED AT 12:35 P.M. 2 AND RECONVENED AT 1:30 P.M.) 3 4 THE CHAIRMAN: Ladies and gentlemen, 5 please sit down. Let's get back into order. 6 I call upon Mr. Nelson Hart to make 7 his presentation. 8 Mr. Hart, were you sworn in already? 9 Were you sworn in already? 10 MR. HART: No. 11 THE CHAIRMAN: Okay, Mr. Grewar. 12 MR. GREWAR: Sir, could you state your 13 full name for the record? 14 MR. HART: My name is Reverend Nelson 15 Hart, member of Nelson House. 16 MR. GREWAR: Reverend Hart, are you 17 aware that in Manitoba it is an offence to 18 knowingly mislead this Commission? 19 MR. HART: Yes, I am aware of that. 20 MR. GREWAR: Do you promise to tell 21 only the truth in proceedings before this 22 Commission? 23 MR. HART: Yes, I do. 24 25 (NELSON HART: SWORN) 4323 1 2 THE CHAIRMAN: Mr. Hart, you may 3 proceed. 4 MR. HART: Thank you, Mr. Chairman. 5 My name is Reverend Nelson Hart, member of Nelson 6 House. 7 I would like to thank the Clean 8 Environment Commission Board for giving me the 9 opportunity to speak. 10 First of all, I would like to express 11 my concern about Councillor Elvis Thomas. He 12 claims to represent members of Nelson, although 13 our members know that he doesn't live in Nelson 14 House. He resides here in the City of Winnipeg 15 with his family. In accordance to our 16 Nisichawayasihk Cree Nation laws, 1998-E1, 17 "ordinary resident" means an elector who is 18 immediately adjacent to the reserve. 19 Furthermore, the Agreement in 20 Principle was done through an amendment meeting 21 excluding off reserve band members to attend this 22 meeting. I was there to witness the amending 23 procedure being done. Therefore -- 24 THE CHAIRMAN: Just a second, 25 Mr. Hart. 4324 1 MR. LEVEN: Elliot Leven, co-counsel 2 for NCN. I don't want to be in any way 3 disrespectful, however, I would ask the Commission 4 to please advise the witness to confine his 5 comments to matters within the scope of these 6 hearings. Thank you. 7 THE CHAIRMAN: Sir, as far as I know, 8 at this point in time, I haven't heard anything 9 that went beyond that. Carry on, Mr. Hart. 10 MR. HART: Therefore, the Agreement in 11 Principle should be declared null and void. It 12 was not done through a majority vote. 13 The construction of yet another dam is 14 like a dark veil descending upon the lives and 15 future of my children. When you can't quiet the 16 voice of yet another river system, you have 17 pronounced the death sentence upon 10,000 people. 18 When you transfer, move, rearrange, change the 19 face of the shorelines and delicate ecosystems, 20 you are playing God, yet you're not God. Dams 21 reverse the natural order of God. Dams are 22 monuments to greed. 23 Manitoba Hydro is yet again in the 24 process of unleashing the great wind of genocide 25 upon my people. Any additional dam proposed will 4325 1 alter the marine ecosystem of our rivers to such 2 an extent that it will be permanently damaged. 3 Hydro developments are: 4 1. Environmental and ecological 5 terrorism. 6 2. A violation of the great law of 7 nature. 8 3. A devastating threat to our lives. 9 The native way of conservation has 10 worked longer than any modern conservation 11 programs. 12 The traditional Native North American 13 relationship with nature is one of dynamic balance 14 of sacred respect and worship. 15 In today's society, we have come to 16 the brink, we need to visit the store houses of 17 our old tradition to revive and cultivate the 18 ancient seeds of wisdom contained in the stories 19 of Native North Americans, and to combine these 20 lessons with knowledge of ecological science. 21 The traditional Native American 22 relationship with nature is one dynamic balance of 23 sacred respect and worship practice -- give and 24 take in response to changes in population levels 25 and habitat conditions. 4326 1 Survival exists along a continuum 2 between the spiritual and the pragmatic. There 3 are similar teachings and understandings of mother 4 earth. She hears the call, she awakes, she 5 arises, she feels the breath of a new dawn. The 6 leaves and the grass stir and all things move with 7 the breath of a new day, everywhere life is 8 renewed. This is very mysterious. We are 9 speaking of something very sacred. 10 Then the questions I am asking are: 11 The Chief and Council changed the name from Nelson 12 House to NCN. When did it come to effect? Was it 13 approved by a majority? 14 Climate change, the impact of the 15 climate change, how will it affect the existing 16 and proposed hydro dam projects? What can we do 17 to respect earth's ecosystem? 18 Furthermore, you have spoken about 19 ecological issues being of fundamental importance 20 at this hearing. I have been listening to that. 21 NCN has advised that the following ecological -- 22 social ecological issues are of fundamental 23 importance to NCN and its members: Identification 24 and protection of sites and objects in need of 25 preservation, such as the footprints, dancing 4327 1 circles, vision quest sites, stone people's boat, 2 grave sites, previous camp sites and other 3 settlement sites, Manitou Island, artifacts, 4 medicinal herbs and plants. Social impacts of the 5 Wuskwatim/Notigi projects on language, heritage 6 and culture, oral history, ceremonies and 7 traditions, and the importance of archeological, 8 anthropological and cultural issues to the 9 environmental assessment. 10 NCN shall assist Hydro and EMT in 11 identification of the sites, in article 9.4A, as 12 soon as reasonable, practical, following the 13 signing of this AIP, the parties agree to review 14 these issues and endeavour to find measures to 15 address them. 16 This other article I had a question on 17 in Thompson, when I used my first language, but 18 now I am going to use the second language of North 19 America, English. Article 4.3, pre-approval, it 20 is in the best interest of Nelson House and Hydro 21 to fully assess and finalize compensation issues 22 prior to formal commencement to any Federal or 23 Provincial environmental review and licencing 24 processes. And accordingly, A: Nelson House 25 agrees to work with Hydro under article 8.3.2(j) 4328 1 in its effort to prepare as detailed and complete 2 compensation proposal as possible to address 3 compensation for Nelson House and members for the 4 known and foreseeable adverse effects of future 5 development. 6 B: Consideration of schedule 2.2 7 shall be included in the preparation of the 8 compensation proposal. If Hydro and Nelson House 9 are unable to jointly develop and agree upon a 10 compensation proposal, Hydro shall finalize a 11 compensation proposal and submit it to Nelson 12 House for its consideration. 13 D: Nelson House shall review the 14 compensation proposal submitted by Hydro within 15 six months. Advise Hydro if it accepts or rejects 16 the compensation proposal. If Nelson House 17 rejects the compensation proposal submitted by 18 Hydro, and Nelson House and Hydro are unable to 19 agree upon an acceptable compensation proposal, 20 then neither or both parties may, in accordance 21 with the procedures in article 13.4, submit a 22 compensation proposal to the arbitrator for 23 approval under article 8.4. The opportunity to do 24 so within the time period established by -- 25 article 13.3.9, fix a date for a hearing at which 4329 1 Nelson House and Hydro will have the opportunity 2 to submit evidence and arguments in support or 3 against any compensation proposals submitted under 4 article 8.4.3(e). 5 At the request of Hydro and Nelson 6 House, the arbitrator shall obey the holding of a 7 hearing under article 8.4.3(f) and proceed to 8 consider any proposals submitted under article 9 8.4.3(e). 10 The arbitrator may adjourn the hearing 11 under article 8.3(f) at any time with the consent 12 of Hydro and Nelson House, or without the consent 13 of Hydro and Nelson House on not more than one 14 occasion and for not more than 30 days where the 15 opposite opinion of the arbitrator and the parties 16 would agree upon a compensation proposal within 17 that time. 18 Hearings under article 8.4.3 shall be 19 held in-camera provided that the party indicate to 20 the hearing process shall give notice to the 21 hearing of Canada and Manitoba who may, but are 22 not obligated to appear at or participate in or be 23 added to intervenors, such as hearings, and 24 information obtained from evidence given from 25 documents submitted to the arbitrator, or for a 4330 1 hearing under article 4.3 shall not be made 2 public. 3 MR. SARGEANT: Excuse me, Mr. Hart, 4 the article you were just reading, was that from 5 the NFA Implementation Agreement? 6 MR. HART: Yes. 7 MR. SARGEANT: Thank you. 8 MR. HART: 13.1, that is from the 9 Agreement in Principle. Before signing the AIP, 10 NCN should hold at least one public meeting of 11 members in each of Nelson House, Thompson, 12 Brandon, South Indian Lake, and Winnipeg. 13 Following reasonable notice to review and explain 14 the terms of the AIP, NCN will provide the AIP by 15 holding a secret ballot vote of all members 18 of 16 age and over, consistent with the procedures in 17 the NCN election code 1988, E1, except that 18 members shall be provided with ballots, polls for 19 voting and Duncan Wood Memorial Hall in Nelson 20 House, the community hall in South Indian Lake, 21 in Thompson, Friendship Centre, 205 22 College Avenue in Brandon and Place Louis Riel in 23 Winnipeg, and by travelling polls for elders and 24 disabled members in Nelson House. 25 13.2: If a majority of those members 4331 1 voting approve the AIP, Chief and Council shall 2 pass a Council Resolution approving the AIP and 3 authorizing it to sign the AIP on behalf of NCN? 4 Were these resolutions signed by NCN 5 Chief and Council? And the members, were they 6 informed? The result of that vote was a 7 majority -- the result of this majority of the 8 voting was 2095. These are the results of the 9 people that voted on, but these are not official. 10 The other question I have is from 11 Winnipeg Free Press story, Saturday, April 5th, 12 2003 of last year. My question is -- north to get 13 a new facility for training, 6.5 million centre to 14 open in Nelson House this fall -- where did the 15 band get that money to pay for this ATEC centre, 16 the Atoskiwin Training and Employment Centre, 17 where did the band get that money from? 18 You have heard what I have presented 19 here on the ecological, and social and cultural 20 issues for the need of preservation of the 21 footprints, dance circles, vision quest sites, 22 stone people's boats, grave sites, previous camp 23 sites and other sites, Manitou Island, artifacts 24 and additional herbs and plants. All of this has 25 been disturbed by previous hydro developments. 4332 1 Manitou Island, that is situated in 2 Wuskwatim Lake, is not there any more, it is 3 washed out. These sites are sacred to our people 4 of Nelson House. 5 Then there are grave sites situated 6 within the proposed Wuskwatim project. People 7 that were there, that lived in that area, raised 8 their families in that area. People that came 9 from other parts of the country to reside in 10 Wuskwatim Lake, they are buried there as well. 11 People from Fort Severn, Ontario, 12 people from Big Trout Lake, Ontario have chose 13 Wuskwatim Lake as a place that they want to make 14 their traditional living by their customary 15 fishing and trapping and gathering, and they have 16 been living and working there before my time. 17 They are buried there. What is Hydro and what is 18 NCN going to do with those grave sites? If they 19 want to do something about those grave sites, they 20 have to talk to the descendants of the family who 21 reside in Nelson House, maybe Thompson, and South 22 Indian Lake. 23 A lot has happened since these 24 footprints were removed. Some of you had the 25 opportunity to visit the dancing circles and look 4333 1 at it in Wuskwatim Lake. Those are ceremonial 2 grounds. I, as a member of Nelson House, didn't 3 get the opportunity to visit that. Maybe I wasn't 4 meant to be there. A lot had happened while -- 5 there was a visitation, an act of nature, during 6 the time when they went to the ceremonial site. 7 This was one of the religious and traditional and 8 cultural dancing circles of people of Nelson 9 House. That is their traditional ceremonial 10 ground. That is just one of them. There are 11 others, not mentioning this book. 12 What are we going to do about that? 13 Are you going to just wash away the remains of 14 those people and not inform the family members -- 15 not just the family members that came there, but 16 family members of Nelson House, who have loved 17 ones buried there as well. 18 Manitou Island was a sacred place of 19 Nelson House Cree. What is Manitoba Hydro going 20 to do in terms of compensation for an island that 21 was sacred to my ancestors? 22 It took me a year or so to really 23 understand what has been going on at these 24 meetings our members, elected members have been 25 coming here to meet. We never had general band 4334 1 meetings. General band meeting has to do with the 2 concerns of the people that reside in Nelson 3 House. I don't recall ever having a general band 4 meeting that deals generally the needs of what the 5 people need in Nelson House, the elders, the 6 widows, the orphans. What are they going to do? 7 They ignored their people. 8 It is from -- my elders tell me that 9 one creature of nature doesn't -- it is not very 10 kind. All other creatures in nature are kind 11 except for the porcupine. The porcupine only 12 nurses its young once. Once it feeds it, it 13 throws it away and walks away. That little 14 porcupine is on his own from day one. But it 15 survives. It is the only creature in nature that 16 we know as Cree people that is born with its 17 teeth, that's why it survives. This is what our 18 leaders are doing to us. Leaving us to be on our 19 own, just like the porcupine, leaving its young to 20 be on its own. 21 In that statement I shared with you, 22 it was mentioned by the third veil. I seen that 23 in a dream, but I didn't understand that. In 24 Nelson House, I had a dream about people standing 25 in a row holding a black -- a black roofing paper. 4335 1 They didn't want to see -- didn't want me to see 2 what is behind that black roll of paper. When I 3 woke up, I asked one of my elders that is here, 4 what does that dream mean? What does black 5 represent in a dream? He told me it is greed. 6 But, I wanted to see what is behind 7 that black roll of roofing paper. I took that 8 roofing paper out of the hands of the people that 9 were standing there and went like this, and I 10 glanced over this roll of paper and I seen the 11 beauty of nature that is behind there, and the 12 needs of my people that are not met. 13 I didn't understand that dream until 14 last night because I was told in that dream you 15 wouldn't see the results of your dream until this 16 time of year and this is the season that I have 17 seen the results of what is happening with the 18 Nelson House Reserve. 19 That's what I am saying to you. 20 People have been saying that our leadership have 21 been doing things behind our backs, that somebody 22 has to be revealed to know what is going on. It 23 is not attending meetings like this, but the 24 greater source. There are other ways to find out 25 what is going on, through dreams. I believe in 4336 1 dreams because dreams are part of our culture, are 2 part of our life. When you want to find out what 3 is going on in your life, pay attention to your 4 dreams. There you will find your answers. You 5 won't get them overnight, they will take a while 6 they take time to find your answers. 7 I hope what I have said here has gone 8 into ears that will hear, listen, and understand. 9 I have been a minister for 17 years, 10 been doing my work -- what I say to my community 11 has always fallen on deaf ears. I may have the 12 same experience here in this gathering. What I 13 share with you may also fall on deaf ears, but I 14 continue to do my work. 15 Yesterday, I notice a question here, 16 of why am I here? Why am I here -- I want to find 17 out what is going on within Nelson House on this, 18 the project that has been done and the proposed 19 projects that are being talked about. And I asked 20 that also in Thompson, when I barged into your 21 meeting at the time. Who is going to speak for 22 the next seven generations of my people, my 23 children, and their descendants? Somebody has to 24 speak up for those yet unborn. If nobody speaks 25 for them, they are going to get after us, our 4337 1 descendants, because we didn't provide the 2 necessities of life for their future. They are 3 going to be travelling in a difficult road, they 4 are going to experience more hardships than we 5 have in our journey. We are going to provide the 6 necessities, both the present needs and the 7 spiritual needs of our children. And for some of 8 our members here, you are already grandparents. 9 What are they going to do? What are they going to 10 share with their grandchildren and the children 11 that are not born yet? 12 Some of these young men here already 13 have children, I wonder if they think about it. 14 They are going to have grandchildren if they live 15 long enough. Only time can tell. 16 We only journey through this world 17 once, and we have to try and make the best for 18 everybody, but disturbing archeological and 19 ceremonial sites, that is not my piece of bannock. 20 Those things are supposed to be left alone, not 21 just in Nelson House, but right across Canada. 22 There are there for a purpose. 23 As human beings we tend to overstep 24 the boundaries of nature. In nature there are 25 signs that are there that -- but they are not in 4338 1 black and white. You go to a certain site and you 2 can't go any further. Culturally, spiritually, 3 you can only go to a certain point in a place like 4 sacred sites and you can't overstep. Just like 5 your back yards here, no trespassing. We seen 6 that in the cities. They don't have that in the 7 bush. But people have to know their limit, where 8 they are supposed to go, what they are supposed to 9 do. We don't have no trespassing signs in the 10 north, but we know where not to go, according to 11 what our elders tell us. 12 Manitou Island there, for example, you 13 are not supposed to point at it, but if you don't 14 believe what your elders tell you, you will find 15 out things the hard way. A time will come when 16 you go there, it might be a nice warm day in the 17 middle of that lake, Wuskwatim Lake, and then the 18 second storm comes up. That was your warning 19 before, don't point to that island, and other 20 sacred sites within the territory of Nelson House. 21 Vision quest sites are there for the 22 purpose of the people that reside in that area, 23 not for museum displays. When these sites were 24 disturbed, the people from Nelson House realized 25 that a lot of lives have been taken because of the 4339 1 disturbance of these sacred sites. We still are 2 paying the penalty with the lives of our people, 3 because we have disturbed the ceremonial and 4 cultural sacred sites of our people. 5 I don't go and disturb your grave 6 sites, do I? You shouldn't do that to ours. 7 Where is your respect? You have to respect 8 yourself as a human being before you can respect 9 other people's cultural and social and religious 10 beliefs. You have to respect yourself. And I 11 have to respect myself too. I always have to 12 include myself when I talk, this is one of the 13 teachings I have received from my elders. 14 Thank you very much. 15 THE CHAIRMAN: Thank you. Reverend 16 Hart, do you wish to entertain questions? 17 MR. HART: No. 18 THE CHAIRMAN: Okay. 19 MR. HART: No, thank you. 20 THE CHAIRMAN: You have asked a number 21 of rhetorical questions, and in due time I hope 22 and expect that you will get the answers to those 23 questions. 24 MR. HART: I want to get those 25 questions answered from you people. 4340 1 THE CHAIRMAN: Okay. 2 MR. HART: And the members of Nelson 3 House. 4 THE CHAIRMAN: Thank you. I think the 5 message has been passed on, the questions have 6 been passed on. Hopefully, you will get your 7 answers in the process of these hearings and 8 further on in further consultations. 9 MR. HART: Yes. I will go home and I 10 have my other duties to do at home. 11 MR. GREWAR: Mr. Chairman. 12 THE CHAIRMAN: The assistant -- can we 13 get your assistant's name for the record? 14 MR. HART: Charlotte Moody. 15 MR. GREWAR: Mr. Chairman, if we can 16 enter Reverend Hart's presentation as OTH-1024. 17 18 (EXHIBIT OTH-1024: Presentation by 19 Reverend Hart) 20 21 THE CHAIRMAN: All right. We will 22 proceed with the ongoing process of the EIS 23 questioning. 24 Mr. Wojczynski, do you have 25 undertakings that you want to respond to or do you 4341 1 want to carry on with the EIS? 2 MR. WOJCZYNSKI: We thought we would 3 carry on, although we were just finishing off an 4 undertaking. So, we were hoping, Mr. Chair, that 5 if we weren't finish the cross by 4:00, if we 6 could perhaps do our undertakings then and we will 7 have them complete by then and that way they could 8 be available for everybody before the weekend. 9 THE CHAIRMAN: Thank you. Mr. Abra, 10 the floor is yours. 11 MR. ABRA: So I can spend the weekend 12 reading undertakings. 13 MR. WOJCZYNSKI: We promise it won't 14 be more than 200 pages. No more than that. 15 MR. ABRA: There is just one more 16 question that I wanted to ask related to the issue 17 of socioeconomic effects. It relates to 18 electromagnetic fields or "EMF". 19 There has been evidence given in that 20 regard already -- I can't remember whether it was 21 by this panel or by the NFAAT panel -- but there 22 has been evidence given of the study that was done 23 by Hydro related to that and the electromagnetic 24 fields were identified and assessed in EIS 25 documents, in particular with respect to the 4342 1 Wuskwatim Transmission Project. 2 Notwithstanding -- and there has, of course, been 3 a Clean Environment Commission study and report on 4 the issue of electromagnetic fields as well. 5 Nevertheless, there is still some general concern 6 amongst many members of the population on that 7 issue. 8 Now, with respect to the Wuskwatim 9 Generation and Transmission Projects, am I correct 10 that the conclusion has been that there are no 11 potential adverse effects on human health about 12 electromagnetic fields? 13 MR. HICKS: That is the case, yes. 14 MR. ABRA: What about the issue of 15 stress in particular, Mr. Hicks? 16 MR. HICKS: The notion that there may 17 be stress in a community because of concern about 18 effects is not directly addressed in the EIS. It 19 was attempted to be dealt with by Hydro in respect 20 of their policy with respect to EMF, and that is 21 to make as much as information available as is 22 available to Hydro to ensure that anyone with a 23 concern with EMF will visited at their request. 24 We will make readings in their homes to give 25 information and education about what EMF is, how 4343 1 it is associated with any electrical appliance, or 2 any electrical activity of any kind. There is an 3 ongoing effort to try to acquaint people with the 4 nature of electromagnetic fields. And to that 5 extent, I would hope that we are helping to 6 relieve any anxiety or stress. 7 MR. ABRA: Is this an ongoing program 8 that Hydro has had for some time with respect to 9 the issue? 10 MR. HICKS: As long as I have been in 11 involved with them, which is about since 1986, 12 yes. 13 MR. ABRA: Is that the only measure 14 that is taken to mitigate the issue of EMF and the 15 possible adverse effect of stress? 16 MR. HICKS: There is at least one 17 current program in North Winnipeg where a recently 18 constructed line has been subject to monitoring as 19 a condition of the environmental license, and that 20 monitoring is being done on an ongoing basis and 21 reported back periodically to Manitoba 22 Conservation and to the two municipalities that 23 are involved. 24 MR. ABRA: Any other mitigative 25 efforts, sir? 4344 1 MR. HICKS: Off the top of my head, 2 no. 3 MR. ABRA: Did Health Canada and 4 Manitoba Health review at all the EIS documents as 5 they related to electromagnetic fields? 6 MR. HICKS: Health Canada in 7 particular asked some questions about EMF, which, 8 if I am not mistaken, the responses were filed in 9 the second supplementary filing, because I believe 10 they were received rather late in the response 11 from government. 12 MR. ABRA: What was the response, sir? 13 MR. HICKS: In essence, that they 14 agreed with the conclusion, and the notion that 15 the conclusion was consistent with that of public 16 health authorities in Canada and elsewhere. 17 They did ask some questions about the 18 precise modeling that was done, and the 19 predictions that were made and reported in the 20 EIS. In one or two instances, as I recall, there 21 had been some transposition of numbers in the 22 tables. Those corrections were made in the course 23 of the supplementary filing. 24 MR. ABRA: All right. To the best of 25 your information, Health Canada was satisfied with 4345 1 the responses that were given to the questions 2 that they asked? 3 MR. HICKS: I believe so. 4 MR. ABRA: What about Manitoba Health, 5 sir, was there feedback from it at all, or did it 6 review the EIS? 7 MR. HICKS: Specifically, on this 8 project, I do not believe so, but there have been 9 people from Manitoba Health who have been part of 10 the ongoing review, by both your Commission and by 11 Manitoba Hydro and previous technical advisory 12 committees, and people from various departments of 13 the Provincial Government. 14 MR. ABRA: Okay. Thank you. 15 MR. REMPEL: I would like to add 16 something to that. Dr. Popplow of Manitoba Health 17 was a participant in the technical advisory 18 committee that reviewed -- 19 MR. ABRA: Dr. Popplow? 20 MR. REMPEL: P-O-P-P-L-O-W, and he 21 also participated in the Clean Environment 22 Commission review of EMFs in general. 23 MR. ABRA: Okay. I would like to go 24 next to the road access management plan. Firstly, 25 for the record, can you explain to us all, because 4346 1 it has been a matter of considerable discussion 2 during the course of these hearings and all the 3 lead-up to hearings, what is the road access 4 management plan? 5 MR. OSLER: The draft of it is exhibit 6 Manitoba Hydro/NCN-0062. It is something that has 7 not been done before, I am told, in the way which 8 we are trying to do it. So, it isn't something 9 that we have seen precursors of it. It is 10 essentially a plan put together by Manitoba Hydro 11 and NCN for the management of the access road that 12 is being developed for the purpose of generation 13 station. 14 The reasons, the objectives for doing 15 this are to address concerns with respect to what 16 that access could allow, because it is new access 17 to the area, in terms of people coming and going 18 from the area. 19 First of all, during the construction 20 period, absent any other concerns, there would be 21 the normal concerns of a proponent to manage 22 access anywhere near a construction side, or a 23 road going in and out of a construction site that 24 had been developed for access purposes, for safety 25 purposes, and all those things. 4347 1 In addition to that type of objective, 2 we have the additional objectives relating to 3 controlling and managing access to the resources 4 in the area that are made more available by the 5 road, so that they will not suffer damage, or over 6 use, or inappropriate use. There are other 7 objectives that are spelled out in the documents, 8 but in a very high level, that is the idea. 9 The plan is broken into two phases, 10 the construction phase and the operation phase. 11 The commitment was to have a plan in draft form 12 prior to the CEC hearing, and that is the one that 13 I referred to that was filed just before the start 14 of this hearing, that would address in detail the 15 construction phase and set out the approach that 16 was being contemplated in the parameters for the 17 operations phase, but the final version of the 18 operations phase document and plan would be 19 developed during the construction period. 20 MR. ABRA: To the best of your 21 knowledge, once the plan is in final form and is 22 filed with Manitoba Conservation, to the best of 23 your knowledge, is it intended that it will be 24 placed in the Public Registry, Mr. Osler, or do 25 you know? 4348 1 MR. OSLER: I just don't know. It is 2 in the Public Registry now, and I think it would 3 be logical to assume that the final version would 4 be put in the registry, certainly it will probably 5 put on the Manitoba Hydro website. 6 MR. ABRA: Now, on the issue in 7 particular of harvesting, can you tell us what 8 steps the draft plan or the ultimate, the final 9 plan contain that will address the issue of 10 potential overharvesting of fish and 11 overharvesting of wildlife. As you said, one of 12 the areas of concern is the fact that the road 13 potentially will provide access to people for the 14 purposes of fishing and hunting. 15 MR. OSLER: Essentially, it will 16 accomplish the objective through the control of 17 who is allowed to use the road. The road will 18 have a gate, and during the construction time 19 period access will be severely limited. To quote 20 from the plan in terms of objectives, the access 21 road must provide unrestricted -- that is all 22 season and at any time -- and safe access to the 23 generating station site for construction staff and 24 vehicles. But road access to that this part of 25 Nelson House resource management area will be 4349 1 managed to support sustainable use of natural 2 resources of the area, protection of natural 3 resources of the areas, and safety of people and 4 property. This includes the cultural, spiritual, 5 and heritage values of the Nelson House resource 6 management areas which are very important to NCN. 7 And road access will be managed for the benefit of 8 NCN as a whole, for the community as a whole. 9 The access road ownership during 10 construction and operation, the plan states that 11 the intent of the parties, NCN and Manitoba Hydro, 12 is the access road will be a private road or the 13 equivalent, in order to provide the maximum 14 opportunity for management access. 15 MR. ABRA: Let's move forward to 2010, 16 assuming for a moment that the generation station 17 is built. There won't be obviously as many people 18 at the area of the site, there won't be as much 19 traffic on the road. What is contemplated then on 20 the issue of security? 21 MR. OSLER: The plan effectively sets 22 out the same type of objectives for the operations 23 time period, and the education and communication 24 actions that I would have noted for the 25 construction period. So that other people in the 4350 1 area, including not just NCN resource harvesters 2 but other people are aware of what is going on. 3 But the options for road access during operations, 4 section 3.3 of the plan states, and I will quote: 5 "The partnership intends that the 6 status of road ownership will remain 7 as private or the equivalent in order 8 to provide for the broadest range of 9 road access management options. NCN 10 and Manitoba Hydro intend to retain 11 the gate facility. Options for a key 12 system and the potential for periodic 13 staffing at key times, subject to 14 feasibility for the project, would be 15 explored. The concept of limited 16 users of the access road would be 17 retained and would include the 18 following: 1, generating station 19 traffic. 2, NCN resource harvesters, 20 that is trappers, commercial fishers, 21 traditional resource users, as during 22 the construction phase. 3, other NCN 23 members. 24 The following would not be permitted 25 users. 1, licensed sport fishers. 2, 4351 1 licensed sport hunters. 3, resource 2 harvesters from other communities, 3 including Aboriginal people. 4, other 4 industry such as forestry, mining and 5 outfitting. 6 The right-of-way of the private access 7 road or equivalent would be within the 8 purview of the partnership. Access 9 via other means to adjacent Crown 10 land, that is through existing trails 11 or flying to Wuskwatim Lake, would not 12 be within the authority of the 13 partnership. To the extent feasible 14 the concept of a "no shooting' by 15 anyone buffer zone along the access 16 road should be retained. If warranted 17 to protect local resources, other 18 options could also be considered by 19 the Province to restrict harvesting by 20 anyone in a specific portion of the 21 area that can be reached by the access 22 road; for example, general area 23 closure under the Wildlife Act, or 24 protection of range for sensitive 25 species under the Crown Lands Act. 4352 1 These measures would be undertaken if 2 warranted by the Province, not by the 3 partnership. The partnership would 4 work cooperatively to compliment such 5 measures. 6 If TLE land is chosen to accomplish 7 the equivalent of 'private ownership' 8 than other options may also be 9 possible such a bylaw development by 10 NCN pertaining to the TLE land." 11 MR. ABRA: I was just going to say, 12 have there actually been any arrangements made yet 13 with the province or is it contemplated that such 14 arrangements will be made with respect to the 15 issues of road construction maintenance, 16 enforcement, and resource management in the area 17 of the road once construction of the hydroelectric 18 dam has been completed and the road is more 19 accessible, shall we say? 20 MR. OSLER: Essentially, the important 21 features here is the contemplation that this would 22 continue to be a privately owned road, rather than 23 on Crown land and, therefore, the partnership 24 would have the ability to continue to have control 25 of access, the right to put a gate on it, the 4353 1 right to limit access. Therefore, that is the 2 basic approach the parties are taking. 3 This plan, although developed by 4 Manitoba Hydro and NCN representatives, and 5 approved by the two parties, also involved 6 consultation with Nelson House Resource Management 7 Board on which the province has representative. 8 It is a plan that has been developed with those 9 people aware of it and party to the discussions of 10 it. 11 MR. ABRA: The transmission line 12 access management plan, during the course of your 13 numerous meetings, Mr. Hicks -- I am directing the 14 questions to you and maybe I shouldn't be, but I 15 know that you were the one that spoke earlier 16 about the significant discussions that have taken 17 place with various communities that may be 18 affected by the transmission line and so forth. 19 During the course of those 20 discussions, did any communities express concern 21 about increased access to the area of the 22 transmission lines? 23 MR. HICKS: Yes. 24 MR. ABRA: Is an access management 25 plan going to be required in that regard, or is it 4354 1 contemplated that one will developed in that 2 regard? 3 MR. HICKS: What we have offered to 4 communities is if there is a persistent concern 5 with respect to access that we would be prepared 6 to work out an access management plan in 7 consultation with them. At this point -- and this 8 probably reflects simply the earlier construction 9 requirement for the power line from Wuskwatim to 10 Thompson. 11 We are now working with NCN on an 12 access management plan for that segment. I am 13 absolutely certain that NCN will wish us to enter 14 into a similar consultation with respect to the 15 portion of the Wuskwatim to Herblet Lake lines 16 that lie within the Nelson House Resource 17 Management Area. 18 We have not had a formal request from 19 other communities at this point, but I would 20 expect that quite possibly Cormorant may wish to 21 have -- the circumstances are a bit different in 22 that once you get beyond Snow Lake, there is a 23 good deal more existing access and linear 24 disturbance in the area. So, it is not certain, I 25 would be speculating, as to whether the other 4355 1 communities might wish to have formal plans in 2 place, but it is certainly a possibility. 3 MR. ABRA: It has been an issue that 4 has been raised and the intention is that if a 5 management plan is required, or if people want an 6 access management plan put in place, that it would 7 be discussed and dealt with at that time? 8 MR. HICKS: That's right. A number of 9 trappers have expressed concern to us about 10 increased access. Other trappers have expressed 11 pleasure that there may be improved access for 12 their own activity. I think I mentioned earlier 13 that in the community of Snow Lake, because of 14 concern for the future of the community and its 15 tourism and recreation potential that there was a 16 concern expressed there as well. 17 MR. ABRA: Does transmission security 18 alone dictate the need for an access management 19 plan? 20 MR. HICKS: Not normally, no. 21 MR. ABRA: It is not something that 22 has been done in the past or has been necessary in 23 the past? 24 MR. HICKS: Not to my knowledge, no. 25 MR. OSLER: Can I just make one 4356 1 observation? I presented information on the road 2 access management plan and I said it was quite 3 novel. The novel element is combination of 4 private ownership and some of the other measures 5 we are talking about. It should not be assumed at 6 all that the same things that I was describing 7 would automatically apply when you are doing a 8 transmission access plan. 9 To the best of my knowledge, the 10 transmission lines will continue to be on Crown 11 land. They will not have gates. You know, that 12 type of concept, implicitly, it wouldn't be the 13 first thing you jump to. It is not a road, it is 14 not the same thing. Linear features are quite 15 different when you are dealing with a road versus 16 a transmission right-of-way. 17 So just because I went into a lot of 18 detail, nobody should assume things that the 19 things that I was saying would be transferable 20 automatically to something that is quite 21 different, a transmission access plan. 22 MR. HICKS: Mr. Chairman, I think we 23 indicated earlier that we have now developed some 24 draft purposes and objectives for the first 25 transmission line segment, and if the Commission 4357 1 desires, we can certainly file that with you 2 today. 3 MR. ABRA: Thank you, if you could. 4 MR. MAYER: On that issue of access 5 management plans, you say you would negotiate some 6 with the communities. I recognize that some of 7 this transmission line runs through NCN's resource 8 area, and I heard some discussion that at some 9 point it came close, but not into the resource 10 area out of Pukatawagan, I believe -- 11 MR. HICKS: Cormorant. 12 MR. MAYER: No, the one a little 13 north, somebody said we got a little close to 14 the -- around Burntwood Lake. I know that the 15 line doesn't go there, but they were concerned 16 that the project area came close. In any event, 17 as I understand it, the rest of the land over 18 which the transmission line would travel is 19 unoccupied Crown land? 20 MR. HICKS: That's correct. 21 MR. MAYER: I am assuming that nobody 22 is entitled to make a deal to keep me off it, at 23 least without the rest of the population of 24 Manitoba's consent somehow? 25 MR. HICKS: Can I go back just a 4358 1 moment to your phrase "negotiate." What I 2 intended to say, if I did not, was "consultation 3 with the affected communities." I don't really 4 see it as a matter of negotiation. 5 To move forward then, the nature of 6 the agreement historically between Hydro and the 7 province with respect to the use of the Crown land 8 has been conventionally a simple reservation on 9 the Crown land. In recent years -- and it is 10 expected that in this and other projects that will 11 move to a formal easement agreement with the 12 province, which will give Hydro some assurances as 13 to any conflicting use of the lands with 14 requirements for safety and operations of the 15 transmission line. 16 MR. MAYER: Actually, that answers the 17 question I was going to ask yesterday because 18 somebody was talking about -- one of the 19 intervenors raised some evidence about what 20 happens when you take title to this land. Hydro 21 never takes title to the land? 22 MR. HICKS: No. I think in the case 23 of station sites, on the other hand, particularly 24 if a station site is -- as it frequently is -- in 25 an organized community or municipality, Hydro will 4359 1 purchase and take Fee Simple title to the station 2 sites. 3 MR. MAYER: I understand. Thank you 4 very much. 5 MR. OSLER: Against the backdrop -- I 6 think we answered an IR on this, but I had 7 additional notes -- if we didn't own the property 8 in the case of the road, there are precedents on 9 Crown land for the forest industry, for what they 10 call road management plans. Tolko, in its current 11 ten-year operating license. 12 That it requires as an environmental 13 license, has such arrangements. As a requirement 14 of their plans and the environmental license, 15 Tolko is required to prepare a road management 16 plan for all of its forest extraction roads that 17 it plans to build. The plan is to show the type 18 of road, et cetera, its location, times, methods 19 of decommissioning, et cetera. 20 In the current ten-year plan, Manitoba 21 Conservation has authorized locked gates on a 22 number of these forestry extraction roads for 23 Tolko under the environmental license. Buckingham 24 Road, and Scratch Lake Road, Radar Road, and 25 Wintering Peninsula Road are examples that I have 4360 1 been given. So that even though it is Crown land 2 and not private ownership, there are experiences 3 where people have used locked gates on a road in 4 order to achieve some of the objectives of keeping 5 out other users, other than in that case the 6 forestry user, and getting into forestry 7 management problems, just as a matter of interest. 8 If you start going to using some the 9 Acts, I am told restrictions then have to apply to 10 all users, whatever restriction you are bringing 11 in, and that can lead to concerns with the local 12 trappers or other harvesters. 13 MR. ABRA: Environmental protection 14 plans, what is an environmental protection plan? 15 MR. OSLER: While they are checking 16 the glossary, it is something flowing from the 17 guidelines initially that is to be prepared 18 following receipt of the license and before the 19 start of construction. We will get the definition 20 that we laboured over. 21 MR. HICKS: Perhaps in the absence of 22 a formal definition, I can explain the purpose in 23 the case of transmission lines. Because 24 transmission line projects are more frequently 25 undertaken by Hydro, the concept is more familiar 4361 1 to the people responsible for their preparation. 2 Environmental protection plans are a 3 means, in the first instance and historically, of 4 ensuring that the contractor and those responsible 5 for the construction and development of the line 6 comply with environmental protection practices 7 that have been identified in the course of the 8 Environmental Impact Assessment as being important 9 to protect the environment and to ensure that 10 there is no serious adverse effect incurred, or to 11 the extent that in a contingency circumstance 12 there is an adverse effect that there are 13 provisions for remediation. 14 In recent times, and it will certainly 15 be the case here, there is a growing appreciation 16 that the construction process -- while certainly 17 the most risky period of time for the 18 environment -- that there is an ongoing risk 19 associated with operation of a line. 20 So, in recent projects, we have been 21 expanding the environmental protection provisions 22 to apply to Hydro's operating staff so that they 23 have guidance as to sensitivities along the 24 right-of-way and are careful in ongoing patrols 25 and maintenance activity to comply with the same 4362 1 procedures and practices. 2 The content of the environmental 3 protection plan, as I think I have testified 4 earlier, is outlined generically in the project 5 description, chapter 3 of the transmission line 6 EIS, where in effect all the kind of practices or 7 protocols or procedures that might be incurred on 8 transmission lines in the north, or in the forest 9 regions, are identified. 10 What will happen now and is beginning 11 to happen already in the case of the Birch Tree to 12 Wuskwatim section, is that we are working with 13 improved mapping, with more detail from the design 14 side and we are looking at how specifically on a 15 site-by-site basis to apply those standards and 16 protocols to the construction of this line, to the 17 particular tower locations that are being 18 identified now, et cetera. 19 MR. ABRA: Is it contemplated that 20 there will be two separate plans, one for the 21 transmission lines and one for the generation 22 station? 23 MR. HICKS: Yes. In fact for the 24 transmission lines, there will be three separate 25 environmental protection plans, one for each 4363 1 segment. This again is to reflect the fact that 2 we have time for the latter segments, those 3 between Herblet Lake and Wuskwatim, and between 4 Herblet Lake and The Pas, to do additional 5 research and to use that time to benefit and to 6 establish a finer degree of detail for the actual 7 plans. 8 MR. ABRA: Thank you. Mr. Rempel? 9 MR. REMPEL: Yes, I have the 10 definition that we used, it is in volume 1, page 11 12-9, and this is how it goes: 12 "The environmental protection plan is 13 a user friendly guide for the 14 contractor that includes information 15 such as, a brief project description, 16 an updated construction schedule, a 17 summary which identifies the 18 environmental sensitivities and 19 mitigative actions..." 20 For example, it would define sensitive 21 drainage patterns and cofferdam construction, that 22 kind of sensitivities and mitigative actions. It 23 would list the federal, provincial and municipal 24 approvals that are applicable, the licenses or 25 permits. It would list conditions that might 4364 1 arise out of approvals from the various 2 authorities. 3 It would describe general corporate 4 practices, spill prevention, oil containment, 5 contingency measures, that kind of thing, and 6 specific mitigation actions for the various 7 construction activities. There will be actions 8 described that are specific to the concrete batch 9 plant, for example, or the quarry activities. It 10 would have emergency response plans, expectations 11 of the contractor for responding to say, oil 12 spills and the like. 13 It would specify some training 14 requirements. It would also indicate 15 environmental monitoring plans. Some of those 16 measures we talked about yesterday for monitoring 17 of the ineam activities and suspended solids 18 monitoring, those would be defined. It would also 19 define reporting protocols. 20 This is a user friendly guide for the 21 contractor, for the inspectors that will be 22 monitoring the contractor, and of course it is 23 information for the regulator to have confidence 24 that the things that were being stated in the EIS 25 are actually being monitored. 4365 1 MR. ABRA: Once the plans have been 2 prepared, they will, I assume, be provided to 3 Manitoba Conservation for review and will be made 4 available to others for review? 5 MR. REMPEL: They are provided to 6 Manitoba Conservation and Manitoba Conservation 7 circulates the document to the appropriate 8 government departments. I am not sure if they put 9 it in a public registry. The registries, for 10 example, don't always continue on a project past 11 the due process. 12 MR. ABRA: Data completion? 13 MR. REMPEL: Yes. So, it is really up 14 to the regulator as to how far -- 15 MR. ABRA: As to what is does with it? 16 MR. REMPEL: Yes. As Mr. Osler said, 17 these documents are likely to be on the Hydro 18 website. 19 THE CHAIRMAN: Likely or will be? 20 MR. ADAMS: We will put them on the 21 Hydro website, yes, sir. 22 THE CHAIRMAN: That is a commitment? 23 MR. ADAMS: It is a sworn commitment, 24 sir. 25 THE CHAIRMAN: Thank you. How many of 4366 1 these environment protection plans are there all 2 together? 3 MR. OSLER: That's what I have in 4 front of me. We have answered this in round 1 to 5 the CEC 101A, and then in round 2 there was a 6 follow-up question -- 101A. But in summary -- 7 looking for the generation project -- in summary, 8 the generation project, we have filed a table of 9 contents for the three separate environmental 10 protection plans that the parties are 11 contemplating, one for the access road, one for 12 the generation project construction camp, and the 13 generation station site. 14 There is also, as Mr. Hicks has said, 15 going to be separate plans, I believe, for each 16 one of three segments for the transmission line? 17 MR. HICKS: That's right. 18 MR. OSLER: So, in total, if I am not 19 mistaken and my colleagues don't disagree, there 20 are six separate plans, three for generation and 21 three for transmission. 22 THE CHAIRMAN: You have referred -- 23 did you want to add to that? 24 MR. REMPEL: I wanted to add, Mr. 25 Chair, that a generic table of contents that would 4367 1 apply to all the plans is listed in page 4-85, 2 which gives the various sections in those of a 3 generic environmental protection plan -- page 4-85 4 of volume 3 of the generating station EIS, 5 supporting volume 3. It gives ten sections, I 6 believe, of a typical environmental protection 7 plan and this is then tailored to suit the 8 particular component, either the access road, or 9 the site that is the subject of that particular 10 environmental protection plan. 11 THE CHAIRMAN: Okay, thank you. 12 That's what I was looking for a while ago. I was 13 just a few pages away. I just missed it. 14 You referred, Mr. Osler, to some of 15 the monitoring issues as being incorporated as 16 part of the environmental protection plans; am I 17 correct? 18 MR. OSLER: I think it was maybe 19 Mr. Rempel, but in the answer I am looking at, it 20 says, 21 "To the extent reasonable and 22 practical in the context of the 23 purpose of such plans, the 24 environmental protection plans will 25 describe monitoring programs to 4368 1 determine the effects of unmitigatable 2 effects on VECs for the Wuskwatim 3 Generation and Transmission Projects." 4 Now, we have said in various times 5 that there will be different monitoring programs, 6 particularly when Mr. Davies was describing the 7 DFO requirements, and there would be different 8 ones for different DFO plans too. So, I am not 9 sure where all of the monitoring plans that will 10 ultimately be developed here will reside, if they 11 will ever reside in one location, but maybe others 12 can address that. 13 MR. REMPEL: I would think the 14 generation site environmental protection plan 15 would make reference to the sediment management 16 plan and associated monitoring. Like in the 17 sediment management plan, those kind of monitoring 18 programs that we talked about yesterday, about 19 intensive monitoring during the installation of 20 the cofferdams and the removal, and the general 21 monitoring that will occur in the river will 22 probably be more specifically outlined in the 23 sediment management plan, but the environmental 24 protection plan will either have that as an 25 appendix or it will make reference to that 4369 1 document as a stand alone reference. 2 THE CHAIRMAN: There are a number of 3 issues -- just as an example, for instance, in 4 regards to fish, or mercury, or suspended solids, 5 et cetera -- which are referred to as being issues 6 that will be monitored. 7 Are they examples of issues that will 8 be in as part of appendices to environmental 9 protection plans, or would they be separate 10 monitoring reports? 11 MR. REMPEL: They very often are 12 separate. For example, the document, the EIS 13 makes reference to a commitment to do these types 14 of monitoring, and they may well be outlined in 15 conditions of a license, or it is simply stated in 16 a license that these kind of monitoring 17 commitments will be honoured, or that Manitoba 18 Conservation, in giving the license, will expect 19 those monitoring programs to be conducted. 20 THE CHAIRMAN: Yes, that's what I was 21 getting at. If, as part of the undertaking by 22 Hydro of carrying out these certain monitoring 23 programs -- I suspect that these will be reflected 24 within the license and that they will be submitted 25 to Conservation? Am I correct in making that 4370 1 assumption? 2 MR. DAVIES: I believe it is intended 3 that the monitoring programs will be stand alone 4 documents, but they will be provided as an 5 attachment to the environmental protection plans, 6 so they will end up being part of a larger set, so 7 they will be available at that time. 8 THE CHAIRMAN: They will be available 9 to -- 10 MR. DAVIES: They will form part of 11 the environmental protection plan as an appendix. 12 They will be a stand alone document, such as the 13 aquatic monitoring program that has been submitted 14 to DFO for their consideration. That document 15 will be referenced in the environmental protection 16 plan and will form an appendix to that 17 environmental protection plan. 18 THE CHAIRMAN: Okay. You have 19 indicated, for instance, that in certain given 20 years there will be monitoring of mercury in fish. 21 Now, subject to that, there will be a monitoring 22 report. That would be submitted to Conservation, 23 that monitoring report? 24 MR. DAVIES: All of the reports will 25 be made public, through NCN and Manitoba Hydro, 4371 1 with the exception of the documents where very 2 site specific information may be provided, such as 3 the exact location of a caribou calving site. In 4 that case, it is normally provided to Manitoba 5 Conservation and they deal with that information. 6 All of the aquatic information will be 7 made public. For all of the fisheries work, a 8 scientific collection permit is required for 9 Manitoba Conservation, and as part of that permit, 10 there is a requirement to provide a copy of that 11 document to Manitoba Conservation. 12 THE CHAIRMAN: Okay. Some of these 13 monitoring in environmental protection plans, as 14 you indicated a while ago, relate to in particular 15 in the area of the transmission lines, we referred 16 to three of them, and the construction, or the 17 station site, for instance, will be part one 18 environmental protection plan, so is the 19 generation program. Some of these have to be 20 fully developed well before the construction 21 begins, I assume? 22 MR. HICKS: In all cases, before 23 construction begins, yes. 24 THE CHAIRMAN: Thank you. 25 MR. ABRA: The area of monitoring 4372 1 actually is what I intended to ask, in any event, 2 Mr. Chairman. So, the last question I have in 3 this regard related to the environmental 4 protection plans. 5 There has been some discussion, maybe 6 even one could classify considerable discussion, 7 during the course of these hearings, concern 8 raised by some presenters that there is a 9 potential or an actual conflict of interest on the 10 part of NCN and Manitoba Hydro being responsible 11 for monitoring its own project, so to speak. 12 There has been some suggestion raised by some of 13 the presenters that there should be an independent 14 body or an independent agency that is responsible, 15 or will be responsible for doing that monitoring. 16 Has there been any consideration given 17 to forming such an independent monitoring body? 18 MR. ADAMS: Typically, we get a 19 license from the Province that insists that the 20 proponent is responsible for the monitoring. It 21 is not an option that is available to us. 22 MR. ABRA: So, in the event that it 23 were put into the license then, you would follow 24 it, I assume? 25 MR. ADAMS: We follow whatever is put 4373 1 in the license. 2 MR. ABRA: Okay. 3 MR. DAVIES: In regards to that 4 matter, the aquatic monitoring program that is 5 submitted to the Department of Fisheries and 6 Oceans is monitored also by them. All of the 7 information and all of the data and all of the 8 reports that are generated to cover and meet the 9 requirements within that monitoring program are 10 provided to the Department of Fisheries and Oceans 11 and are scrutinized and reviewed by scientists 12 within that department and they provide feedback 13 to both the public and to Manitoba Hydro and NCN. 14 MR. ABRA: But, the monitoring is 15 still done by you people, though, Mr. Davies, and 16 then the reports are provided to them for their 17 review; am I correct? 18 MR. ADAMS: Maybe I could jump in 19 here. Mr. Davies isn't Manitoba Hydro. In this 20 case, it would be NCN and Manitoba Hydro 21 responsible for ensuring that the monitoring is 22 done. Typically, we don't do it ourselves -- on 23 one or two occasions we might. We, invariably, 24 contract independent consulting companies such as 25 North/South Consultants to do the work for us. We 4374 1 are perfectly willing to make the results 2 available to anybody and everybody, and make them 3 subject to peer review. 4 MR. ABRA: Okay. 5 MR. OSLER: I have one thing to throw 6 into it. It is very important to realize that we 7 start from the guidelines in doing all this, and 8 the guidelines tell us what is required, and it 9 says we have to do an environmental protection 10 plan, section -- I think it is 9 of the generation 11 guidelines. It tells us what we have to put in it 12 and we have to do it after we get the license and 13 before we start the construction, if you are a 14 proponent. That's the normal regime. 15 When proponents or advisers are 16 interested in trying to make sure that people who 17 are affected have a chance to be aware of these 18 things, usually they go about in addition, as 19 happened in this case, involving these people in 20 the preparation and development of these plans, 21 and making sure that they are involved in the 22 review of them as they go forward. That is sort 23 of the way in which the type of -- at least in 24 large part the concerns that you are talking about 25 get addressed. 4375 1 Nobody, to my knowledge, has yet ever 2 put forward a plan to change that whole regulatory 3 regime in some different direction. So, we 4 haven't, of course, looked at it at all. But, it 5 is a long-standing regime. 6 The way in which you involve people 7 who are affected who have an ongoing interest, if 8 they are downstream users, or they are NCN 9 members, or they are resource users or whatever, 10 is you involve them in preparing it, making sure 11 they are interested or concerned, making sure they 12 have an ongoing role in reviewing it, making sure 13 they have access to it, because it is in the 14 interest of a good proponent to do that if they 15 want to have good relationships with the people 16 that are going to be in the neighbourhood that 17 they are working in. 18 MR. ABRA: That may very well be. The 19 question that I asked, though, was whether or not 20 Hydro and NCN were prepared have involvement with 21 an independent agency to do it. And in the event 22 that the license provides that, I understood Mr. 23 Adams to say, yes, it would be complied with. 24 The reason we ask is that there has 25 been independent monitoring brought in recently in 4376 1 the Northwest Territories, in particular with 2 respect to the diamond mining. It was ordered 3 that it be independent monitoring. What I was 4 asking was, would you be prepared to participate 5 in the event it is ordered? I understood 6 Mr. Adams to say yes? Does that end the matter? 7 MR. ADAMS: We do whatever we are told 8 to do. 9 MR. ABRA: Thank you. 10 I would like to go back just to a 11 couple of areas, to a couple of questions in some 12 of the areas that I asked three weeks ago now; 13 just some loose ends. 14 THE CHAIRMAN: You are changing the 15 subject area? 16 MR. MAYER: I heard him say he was 17 "going back". That was really bad. 18 MR. ABRA: I am starting over again. 19 THE CHAIRMAN: This is about the 20 half-way point for this afternoon, if we could 21 have a short break. 22 MR. ABRA: Thank you. 23 THE CHAIRMAN: Ten minutes break. 24 That makes us 10 after 3:00. 25 4377 1 (PROCEEDINGS RECESSED AT 2:59 P.M. AND 2 RECONVENED AT 3:10 P.M.) 3 4 THE CHAIRMAN: Ladies and gentlemen, 5 let's get back to business here. 6 Okay, Mr. Bedford. 7 MR. BEDFORD: Commissioners, Mr. Abra 8 has graciously granted me ten to 15 minutes of the 9 time remaining to him this afternoon to put in two 10 undertakings that have been made on behalf of 11 Manitoba Hydro. I will try to be as brisk and 12 efficient as I am capable of being. 13 The two undertakings in question, one 14 is a response to an undertaking I made on behalf 15 of Manitoba Hydro, and I was involved in the 16 second one as well. It is the answers to the 17 questions posed by Grand Chief Margaret Swan. 18 You will all, I am sure, remember that 19 two weeks ago today on an evening in The Pas, I 20 made an undertaking in response to what I thought 21 was an intelligent and very helpful suggestion, 22 that Manitoba Hydro put on record a list of 23 agreements its entered into with various 24 communities that have been effected over the years 25 by flooding and, specifically, put on record, not 4378 1 just a list of agreements where amounts of money 2 have been paid, but where programs have been put 3 in place to assist with the healing of peoples and 4 waterways and regions affected by flooding. 5 Lawyers at hearings like this are 6 trained to look over their shoulders and just 7 prior to me putting in these undertakings, I can 8 tell you that's what I am doing. 9 Lawyers know that when processes like 10 this eventually come to an end, sometimes unhappy 11 people go to that building at Broadway and Kennedy 12 Street in Winnipeg and they commence other 13 processes. And the people that sit on the benches 14 at Broadway and Kennedy generally ask lawyers such 15 as myself when those processes unfold: Mr. 16 Bedford, did you have the good sense to bring to 17 the attention of the commissioners when it was 18 happening the concerns that you are relating to me 19 now? So, it is for that reason, that I would like 20 to read the following remarks and in that spirit. 21 We have some discomfort with the 22 position that we find ourselves in with respect to 23 these two particular undertakings. On the one 24 hand, we are confronted by issues that are out of 25 scope, for the current hearing and on the other 4379 1 hand, we are well aware of the commission's 2 history and practise of receiving virtually all 3 submissions which the public wishes to provide, 4 even though they would not meet any legal test of 5 materiality or relevance. 6 In the context of these undertakings, 7 we believe that it is appropriate to clarify our 8 position with respect to this hearing and the 9 review of the Wuskwatim projects. 10 This commission quite obviously is 11 bound by the authority that is given to it in the 12 constating legislation in the minister's terms of 13 reference. The commission's motion decision of 14 October 6th, 2003 recognized those limits. In 15 establishing the terms of reference, the minister 16 did have the benefit of the views of the public 17 and the commission prior to their issuance. 18 It should also be noted that the final 19 guidelines given to the proponents were also 20 developed and issued after public input. The 21 final guidelines focused on the likely effects of 22 the proposed developments as these may occur, in 23 combination with existing and future projects. 24 This is the nature of project-specific 25 accumulative effects assessment and this is the 4380 1 approach that was adopted by the minister. 2 Consideration of the effects of past 3 development, therefore, are outside the scope of 4 this hearing, unless such effects occur in 5 combination with likely effects of the proposed 6 Wuskwatim developments. 7 The motion decision of this commission 8 of October 6th, 2003 also recognized that the 9 commission is not to conduct an investigation of 10 the existing Manitoba Hydro system. Information 11 about the effects of past Hydro development and 12 the use of such information to assess accumulative 13 effects of the Wuskwatim developments are both 14 outside the scope of this hearing, except to the 15 extent that the effects of the proposed Wuskwatim 16 developments can interact with the effects of an 17 existing or past development. 18 We accept the relevance of 19 presentations and questions aimed at considering 20 whether the effects of the proposed development 21 can interact with effects of existing projects. 22 Effects or allegations of effects of 23 past projects which will not interact with 24 potential effects of the proposed development have 25 no relevance to this proceeding. 4381 1 We understand that information of this 2 nature may come to the commission in submissions 3 for members of the public. We understand that the 4 application of strict rules of evidence to this 5 process might hinder this commission from 6 fulfilling its role to provide a comfortable 7 environment for members of the public with no 8 legal training and no experience in advocacy to 9 come and express their views. 10 In this context, it is inevitable that 11 this commission will receive submissions that are 12 outside the bounds of legal relevance to the 13 matter before it. It is no surprise then that in 14 the course of these hearings this commission has 15 received submissions that are outside the terms of 16 reference. 17 We find ourselves in the position of 18 trying to decide whether to challenge submissions 19 that, in our view, are not relevant to the matters 20 before you, or to leave unchallenged on the record 21 allegations with which we may well strongly 22 disagree and fear that, through silence, may imply 23 agreement to what is being heard on our part. 24 Submissions in which people express 25 their feelings about past Hydro development are 4382 1 not only sensitive to them, but they are sensitive 2 to us as well. 3 However, sincere witnesses and 4 presentations are when, in our view, they 5 inaccurately represent Manitoba Hydro's efforts 6 and activities over the years, once they are 7 received on the record by the commission -- I 8 repeat -- we are left with the dilemma of do we 9 challenge them or do we not? 10 Accordingly, I reiterate that we think 11 it was an intelligent and a helpful suggestion 12 that we try and deal with this concern simply by 13 filing an undertaking? 14 We understand the point of view of the 15 commissioner's that in doing it this way, it is -- 16 if I can use the terms a "pro-active, 17 non-adversarial way", and in that spirit, we 18 respond with the answer to the undertaking. 19 However -- now the lawyer truly 20 speaks -- we wish it to be very clear that we are 21 providing the information for the purpose of 22 addressing and out-of-scope submission that that 23 the commission has. We are providing the answer 24 to the undertaking on the assumption that the 25 commission understands our view about the limits 4383 1 of jurisdiction and mandate. 2 Questions about the information in the 3 undertaking, we suggest, would not be within the 4 scope of this hearing. 5 Accordingly, I find myself having to 6 tell you that I have recommended to the witnesses 7 that we not go down the road of answering a series 8 of questions about the information in this 9 undertaking. 10 Answers to questions such as: Were 11 the amounts in the agreements adequate? Was all 12 that could have been done over the years adequate? 13 Who is involved in the agreements and who was not 14 included in some of the them because of 15 definitions in the agreements? Are the people who 16 entered into the agreements still today content 17 with the agreements they signed or not? And if 18 not, why not? Why have some communities not 19 signed agreements when others have? Are the 20 agreements treaties? How did the agreements 21 relate to the Northern Flood Agreement? 22 I repeat answers to questions like 23 these, while questions that many may wish to pose, 24 do not provide assistance to this commission in 25 meeting the terms of reference or the 4384 1 environmental impact study guidelines. 2 Accordingly, to reiterate the 3 recommendation that I have made to the witnesses, 4 is that we not go down the road of answering a 5 series of questions that might well come to mind 6 once you have had an opportunity to look through 7 the answers to the undertaking. 8 MR. SARGEANT: Can I interrupt? 9 MR. BEDFORD: Yes. 10 MR. SARGEANT: Mr. Bedford, that list 11 of questions that you just reamed off, where did 12 that come from? 13 MR. BEDFORD: That came from Doug 14 Bedford. 15 MR. SARGEANT: So, that is just your 16 conjecture of what some of us might think after we 17 see this list? 18 MR. BEDFORD: Yes. 19 MR. SARGEANT: Okay, thank you. 20 MR. MAYER: That does bear some 21 resemblance to questions that we asked earlier and 22 we were told to wait until Thursday. 23 MR. BEDFORD: Okay, I must confess 24 that I did not have any questions that you posed 25 earlier in mind when I developed my list. And in 4385 1 fairness to my client, I developed the list, my 2 client did not. So, I am sure my client is as 3 interested as you were in hearing the list, but 4 the list comes from the lawyer, not from the 5 client. 6 MR. ABRA: Mr. Bedford, do I 7 understand you to be saying that the questions 8 that you have just listed off for us are questions 9 that you think might be asked in the future and 10 you are giving us warning that they won't be 11 answered? 12 MR. BEDFORD: Yes. 13 MR. SARGEANT: Or you will advise your 14 questions not to answer? 15 MR. BEDFORD: Better put than I would. 16 Mr. Adams is going to make a few 17 remarks regarding one of the two undertakings. 18 Before he does so, there is one other observation 19 that I wanted to make. 20 When I made the undertaking two weeks 21 ago on a Thursday evening in The Pas, Mr. Bob 22 Adkins was with me. Astute observers at this 23 hearing will have recognized that Mr. Adkins 24 joined me on those occasions when evidence was 25 being led regarding the agreements and the 4386 1 negotiations that Hydro has engaged in over the 2 years with affected communities. 3 It was Mr. Adkins who had to undertake 4 the difficult task of putting questions to First 5 Nations people, some of whom I am aware he knows 6 personally. I know he has met with and negotiated 7 and consulted with people in most of the affected 8 communities over the years. I know it was 9 difficult for him to go through that exercise, 10 which, at firsthand, was my responsibility not 11 his. 12 What is not known more broadly is that 13 over the last 15 years, it is Mr. Adkins who has 14 largely drafted and negotiated most of the 15 agreements and understandings that you will read 16 about in the undertaking. Some of the concepts 17 and the ideas in those agreements were Mr. Adkins' 18 personal inspiration. There is much good that has 19 come out of the those agreements, both for my 20 client, Manitoba Hydro, and for the affected 21 communities. I certainly recognize as a lawyer 22 that it is the client that decides at the end of 23 the day whether to accept recommendations and at 24 the end of the day, it is the client who makes the 25 payments required under the agreements. 4387 1 In this case -- and I speak 2 personally -- and on behalf of Manitoba Hydro, but 3 Manitoba Hydro has many times over the last 15 4 years has had the good sense to accept Mr. Adkin's 5 recommendations. 6 The body of work that comes out of 7 these agreements is a fine body of work. It ought 8 to be publicly acknowledged and recognized as such 9 and that's why I have just made the remarks that I 10 have. 11 I would now like to turn the mice over 12 to Mr. Adams and he will address through some 13 further remarks, the particular undertaking which 14 I have been asked to put in. 15 I thank, again, Mr. Abra for granting 16 us the time to interrupt his cross-examination and 17 do this. 18 THE CHAIRMAN: Mr. Adams. 19 MR. ADAMS: Thank you, Mr. Chairman 20 and commissioners, on the basis of the 21 introduction by Mr. Bedford, I would ask him to 22 file with the commission our response to 23 undertaking number 55. 24 In presenting this to the commission, 25 I would like to take a few minutes to explain the 4388 1 background of some the programs, projects and 2 activities that we are involved in and continue to 3 be involved in and have been involved in. I would 4 also like to make sure that we all work from a 5 fairly common understanding of the context of 6 these existing projects. 7 A good way to start is to point out 8 that the Kelsey and Grand Rapids projects were 9 built almost half a century ago. Kettle Rapids 10 was over 30 years ago as Mr. Sargeant will attest 11 too. 12 MR. SARGEANT: I am not that old. 13 MR. ADAMS: You must have been very 14 young. 15 Even the Lake Winnipeg regulation and 16 Churchill River projects were over 25 years ago. 17 At the risk of sounding trite, I think we all 18 understand that the world was a very, very 19 different place long ago. 20 As a result, Manitoba Hydro's approach 21 to the management of the environmental and social 22 issues associated with its developments has 23 evolved over this period, generally in accordance 24 with the changing social, political and legal 25 environment throughout North America. 4389 1 The early activities of the 2 corporation occurred in an era where there was 3 very little understanding or appreciation of the 4 effects of development, either on people or on the 5 environment and there was a marked absence of any 6 form of environmental regulation or legislation. 7 For example, developments along the 8 Winnipeg River at Grand Rapids, Kelsey and Kettle 9 sites were subject to very little societal 10 interest, despite the impacts associated with 11 them. 12 Certainly at the time, Manitoba Hydro 13 and the Manitoba Government engaged Aboriginal 14 communities discussions regarding mitigation, 15 compensation and so on, but there really wasn't 16 any general recognition anywhere of a need for 17 continuing relationships with the Aboriginal 18 communities. 19 It really wasn't until the '70s and 20 '80s that environmental awareness increased among 21 Canadian society at large and that respect for and 22 appreciation of Aboriginal peoples and their 23 experience with the development process grew in 24 prevalence. 25 The shift in perspectives perhaps best 4390 1 illustrated by the events surrounding and leading 2 up to the 1969 rejection of the original high 3 level diversion concept for the Churchill River 4 diversion and by the subsequent emergence of 5 environmental assessment legislation which placed 6 the onus for impact management on project 7 proponents. 8 As these understandings and 9 appreciations and legal requirements developed, 10 Hydro increasingly became involved in 11 environmental initiatives and in efforts to 12 address Aboriginal grievances and claims over past 13 projects. 14 By the end of the 1970s, the 15 corporation was exploring comprehensive approaches 16 to resolving outstanding NFA agreement issues and 17 other issues not related to the NFA, and 18 establishing northern Aboriginal job and business 19 preference for new projects. 20 I think it is fair to say that we all 21 recognize that nearly all Aboriginal communities 22 in Manitoba, and indeed most of Canada, are 23 experiencing significant stresses and social 24 issues, even those that have not been affected in 25 any way whatsoever by hydroelectric development. 4391 1 For those that have been affected by 2 our projects, we continue to work with them to 3 resolve outstanding claims and where they have 4 experienced loss, damage or dislocation, to 5 recompense them for it. But, in doing this, one 6 of our objectives is to establish long-term 7 relationships with the Aboriginal peoples and the 8 Aboriginal communities where these relationships 9 are founded on mutual trust and shared interests. 10 The efforts include a wide range of 11 policies, programs and activities aimed at 12 increasing Aboriginal participation in corporate 13 activities. These programs include employment, 14 business and partnership opportunities, 15 maintaining regular contact within and throughout 16 the communities, managing community-specific 17 issues, including supporting and promoting the 18 safety of people using effective waterways, and 19 generally working to improve our reputation and 20 reception at the local level. 21 In addition to the work associated 22 with Aboriginal relations, we have in place a wide 23 range of environmental programs trying to minimize 24 the effects of ongoing operations on natural 25 resources and the peoples' use of those resources. 4392 1 We recognize and have to accept that 2 not all community concerns can or will be 3 addressed through these efforts. 4 As I have mentioned previously, 5 Aboriginal communities are experiencing issues 6 associated with activities other than 7 hydroelectric development, and it is neither 8 possible nor appropriate for Manitoba Hydro to 9 address or compensate for these non-hydro related 10 issues. 11 What we can do in the communities that 12 we have affected, is support their efforts to 13 define and pursue a vision for future generations. 14 One way this is being done is through 15 funding available under impact management 16 agreements, included the NFA, implementation 17 agreements, mitigation trusts and settlement 18 agreements, all of which provide funds to the 19 communities to move forward in the way of their 20 own choosing and allow them to address community 21 priorities. 22 But, equally important to the funds is 23 a vast array of programs, policies and activities 24 designed to strengthen our relations with 25 Aboriginal peoples. We have divided these 4393 1 policies, programs and activities into seven 2 general categories and I want to spend a few 3 minutes just outlining them for you. 4 First, obviously, is mitigation and 5 compensation. In the handout, we have listed the 6 status of 36 agreements with various northern 7 communities. Even this isn't an exhaustive list 8 of all the agreements that we have entered into, 9 nor of all programs being implemented by Manitoba 10 Hydro in attempt to address past impacts and to 11 build relationships of the Aboriginal people. 12 As of March the 31st, 2004, we have 13 spent or committed approximately $522 million for 14 remedial works, compensation and mitigation 15 initiatives in Manitoba. That does not include 16 the money that the province, independently from 17 Manitoba Hydro, has spent in addressing its 18 obligations. 19 We can see that since 1990, we have 20 consummated a series of agreements with a large 21 number of communities to resolve issues arising 22 from projects constructed in northern Manitoba in 23 the '60s and '70s, as well as Winnipeg River 24 developments which were developed in the first 25 half of the century. 4394 1 In addition, numerous individual 2 settlements have been reached with commercial 3 fisherman, commercial trappers and other 4 individuals affected by corporate activities. 5 Discussions are ongoing with several 6 communities, including War Lake and Fox Lake with 7 whom we think we are reasonably close to signing 8 agreements. As well as Mathias Colomb and Marcel 9 Colomb, First Nations in the Granville Lake 10 community who, as yet, don't have an agreement 11 with us, but we are working on it. 12 The one that does stand out quite 13 significantly is the Cross Lake First Nation and 14 Manitoba Hydro are trying to operate under the 15 terms of the Northern Flood Agreement, which is 16 dated back to 1977. In this case, the 17 relationship between Manitoba Hydro and Cross Lake 18 and the other two signatures of the Northern Flood 19 Agreement, the Governments of Canada and Manitoba, 20 are probably best described as being strained with 21 each party having a very different perspective on 22 the meaning of the various parts of the agreement. 23 But, the one thing that all the 24 agreements have in common is that they are 25 designed to mitigate the impacts and to compensate 4395 1 for both the direct and the indirect damages 2 caused by Manitoba Hydro's projects. 3 The second general area where we are 4 working with the Aboriginal communities is what we 5 would call "Future Development and Partnership 6 Agreements". As we are all clearly aware, Hydro 7 is currently involving local Cree Nations in 8 planning for the Gull and Wuskwatim projects. The 9 discussions include ways and means of reducing 10 negative project impacts, maximizing the benefits, 11 including training, job, equity participation and 12 other ways of participation. 13 Manitoba Hydro and Tataskweyak Cree 14 Nation signed an Agreement in Principle three and 15 a half years ago regarding the Gull -- or as we 16 will probably call it in deference to our 17 partners, the Keeyask project. 18 Subsequently, a similar agreement in 19 principle was entered into with War Lake for the 20 same project and we are continuing discussions 21 with Fox Lake and York Factory to find ways for 22 them to cooperate with us and TCN in the project, 23 including potential business partnership. 24 As everybody knows, we here today 25 sitting with NCN at this table jointly proposing 4396 1 the Wuskwatim project. 2 The third area which has cropped up 3 and is a category of programs and projects is what 4 we would generically call "environmental and 5 monitoring programs". I would like to spend a few 6 minutes describing several of these, and it 7 doesn't intend to be a exhaustive list. 8 We are very heavily involved in the 9 sturgeon management program. Lake sturgeon are a 10 heritage species in Manitoba and they are the 11 focus of several programs that Manitoba Hydro is 12 involved in. 13 A good example is the Grand Rapids 14 hatchery which produces sturgeon fingerlings for 15 stocking throughout the province, where we, again, 16 don't specifically get involved in growing the 17 fingerlings, but we provide the funds and a lot of 18 background support. 19 Manitoba Hydro is also involved in the 20 Nelson River Sturgeon Co-management Board, the 21 Saskatchewan River Sturgeon Management Board and 22 our staff serve on the Manitoba Sturgeon 23 Management Committee. In the last 18 years, we 24 have studied and participated in sturgeon 25 management activities on the Lower Nelson, the 4397 1 Pigeon and the Winnipeg River. 2 The second program in this context is 3 the South Indian Lake Monitoring Program. We are 4 working with the leaders of the community in South 5 Indian Lake, and by South leaders we include 6 CASIL, the NCN head men, the mayor in council of 7 the community, the Fisherman's Association and the 8 Fur Council all to develop an environmental 9 monitoring program for the lake. 10 Representatives from these groups, 11 together with people from Manitoba Water 12 Stewardship, the Federal Department of Fisheries 13 and Oceans and, of course, Manitoba Hydro are 14 jointly developing and directing the monitoring 15 program. 16 Under this program, Fisheries 17 investigations were you conducted with the fall of 18 2003 and a plan for 2004 and future years is under 19 the process of being developed. 20 Another environmental program that is 21 developed or has generated some interest in the 22 hearings is the Debris Management Program. Our 23 first priority, of course, is to support to 24 promote the safety people travelling on the 25 waterways affected by the operations. 4398 1 Beyond that, to date, we have 2 initiated a wide variety of debris cleaning work, 3 including cleaning before the project developments 4 starts to minimize aftereffects, preparing safe 5 havens, operating boat patrols to remove the 6 debris, and collecting and removing debris from 7 long shorelines in and around communities. 8 Let me give a bit of background on 9 this Debris Management Program; it does go back a 10 long way. The practices employed during the 11 construction of the CRD and the Lake Winnipeg 12 regulation projects were selected after thorough 13 consultation with the provincial regulators. All 14 the measures taken at that time were consistent 15 with the requirements and expectations of the 16 government at that time. 17 Following construction of the 18 projects, we undertook a number of initiatives 19 designed to respond to individual concerns and the 20 needs of affected communities regarding debris 21 management and clearing, including the concerns of 22 people at South Indian Lake. 23 In addition, specific funds have been 24 allocated for debris management and clean-up 25 efforts in the agreements negotiated with the 4399 1 various communities which we described earlier. 2 These funds were to be used and 3 distributed at the discretion of the individual 4 communities in order to address their specific 5 concerns and needs. 6 About six years ago, in order to 7 improve the efficiency of their program and to 8 eliminate duplication, we formalized the debris 9 clearing efforts under a single policy, which we 10 now call the "DMP". Like everybody else in the 11 world, we love acronyms. DMP, which I will come 12 back to, is called the Debris Management Program. 13 This program establishes priority for 14 debris clearing activities throughout the province 15 and includes a range of activities to enhance the 16 safety on impacted waterways. 17 The guidelines for the program were 18 developed through consultation with the province 19 and with affected Aboriginal communities and 20 considered environmental considerations as well as 21 safety, hydraulics, and other anthropogenic 22 considerations. 23 The Debris Management Program 24 continues to involve First Nations in determining 25 priorities. With the support of Hydro, local 4400 1 communities determine the main travel routes and 2 priority sites for debris management activities. 3 Some of these activities include boot patrols and 4 debris removal, and residents of the local 5 communities are hired to manage and perform the 6 work. 7 In fact, our Debris Management Program 8 is acknowledged by our peers in the hydro 9 business, and by the regulators, as one of the 10 best of its kind in North America. Improvements 11 to the program are made on a continual basis, with 12 the emergence of new technology and with new 13 information, and with the identification of new 14 priorities at the community level. 15 For example, over time we have gained 16 an increasing appreciation of the role debris 17 plays in shoreline stabilization and fish habitat. 18 This knowledge has been incorporated into the 19 debris management activities. 20 Of course, every action that we are 21 involved in has to be pre-authorized by both the 22 community and the appropriate federal and 23 provincial regulatory authorities. 24 Just a matter of scale, in the summer 25 of 2003, Manitoba Hydro provided in excess of $2 4401 1 million towards the execution of the Debris 2 Management Program. 3 Draw down of water levels is not 4 required to either continue or expand the current 5 debris clean-up program on our reservoirs. In 6 addition to the financial implications, if Hydro 7 were to operate outside its normal operating 8 ranges, it is likely that the federal and 9 provincial regulators would require an 10 environmental assessment, or review the deviation 11 from existing conditions. 12 It is also expected that regulators, 13 notably the Department of Fisheries and Oceans, 14 would have several significant concerns in this 15 area, including any temporary reduction of the 16 lake level would probably reduce overall lake 17 productivity by exposing relatively large areas of 18 near shore habitat, which is the most productive 19 area of the lake. 20 It would cause, potentially, direct 21 effects on fish spawning by the exposure of eggs, 22 particularly if the draw down occurred in the 23 spawning season associated with various fisheries. 24 It would certainly disrupt shoreline wildlife, 25 including fur bearers. 4402 1 Removal of debris, which in many cases 2 provides fish habitat and/or protection of the 3 shoreline from wave action and erosion would also 4 be of concern to the regulators. 5 Any temporary lowering of water levels 6 would have potential effects on navigation on the 7 lake and would create access problems to and from 8 the lake, such as docks that are now incapable of 9 being operated. 10 Moving to the fourth category of 11 issues, we talk about educational training and 12 employment programs and policies. Our corporate 13 plan, strategic planning includes Aboriginal 14 employment targets of 10 percent for the whole 15 corporation, and 33 percent in Northern Manitoba 16 by 2005; next year. 17 Currently, over 500 of our employees 18 claim to be of Aboriginal origin, which I am 19 confident that I can say that is more than any 20 other industrial employer in Canada. 21 Approximately 10 percent of our total 22 work force today is Aboriginal and 30 percent of 23 our northern work force is Aboriginal. 24 We have extensive Aboriginal 25 pre-employment training initiatives. These were 4403 1 developed initially to prepare Aboriginal 2 candidates to acquire the minimum qualifications 3 to enter into our electrical, mechanical, operator 4 and power line training programs. 5 Two years ago we expanded this 6 initiative to also include access to professional 7 and technical job categories, such information 8 technology, human resources, engineering, 9 commerce, fleet technicians, and of course 10 maintain the lineman and the generating technician 11 programs. We have found these programs to be 12 extremely successful. 13 We discuss here quite extensively the 14 major projects, pre-training projects, training 15 initiatives for Aboriginal people that we have 16 been involved in. Manitoba Hydro has committed 17 $20 million to pre-project training. The province 18 has committed $10 million. The Federal Government 19 has committed 8 to date, and it has indicated that 20 it is considering committing up to another 22 21 million, for a total of 60 million. 22 As we previously indicated, the focus 23 of this initiative is on apprenticable trades and 24 construction workers for the Hydro projects and 25 for other areas in the construction industry in 4404 1 Northern Manitoba. 2 The initiative provides for training 3 assessments, education upgrading, life skills 4 training, technical trades training, on the job 5 training, training allowances, child care, a 6 program management, development, and retention 7 support. It is a comprehensive program. Training 8 is targeted to occur at the community level and is 9 focused on work force requirements for the 10 projects. 11 We have also previously described our 12 northern purchasing policy and procedures, which 13 promote participation in Northern Aboriginal 14 businesses through information exchange, scoping 15 initiatives, negotiation or restricted tendering, 16 support of Aboriginal joint ventures, preferential 17 business policies, and Manitoba content -- again, 18 a comprehensive program. 19 In addition to these locally focused 20 programs, we also make a significant amount of 21 educational funding available. We currently make 22 $120,000 a year in bursaries and scholarships 23 available, specifically for Aboriginal students, 24 in a wide range of disciplines. We also ensure 25 that the recipients of these programs receive 4405 1 priority consideration for summer employment 2 opportunities. 3 Another one that we found particularly 4 interesting is at Grand Rapids where we have 5 arranged for the Frontier School Division to 6 provide a high school credit course on energy with 7 a specific focus on electricity. What is 8 particularly interesting about this course is that 9 the students spend part of the time in the plant, 10 as well as job shadowing people working in the 11 plant, as well as spending time in the classroom. 12 I could go on, but there is a huge range of these 13 sorts of initiatives that we do at both the 14 corporate wide level and at the local level to 15 basically look after our long-term interest, which 16 is employing people. 17 The fifth area is in a broad 18 relationship with community relationships. We 19 have a partnership fund called the Keewatinook 20 Sipea (ph) program -- which I am told means 21 "northern rivers". It is a fund we established 22 several years ago to help the residents with whom 23 we share the use of the waterways. The funds 24 finance projects with a priority on those that 25 enhance safety, comfort and convenience for 4406 1 traditional or commercial activities on the 2 regulated waterways. 3 I will give you a couple of examples. 4 Last summer we provided funds to Granville Lake 5 recreation committee for the enhancement of 6 community shorelines -- these are shorelines that 7 have not been affected by Manitoba Hydro -- and to 8 clean up cemeteries. Funds were also provided to 9 the Opaskwayak Cree Nation commercial fisheries 10 cooperative for the construction of four floating 11 docks and an accommodation facility. 12 Other examples include the provision 13 of funds to Northwest Fisheries Limited to replace 14 a dock for commercial fishing operations, and 15 funds were provided to Moose Lake Draft Horse 16 Association to purchase a tractor, bailer, and 17 mower, presumably to help them grow grass to feed 18 the draft horses. 19 We also have a program called the 20 Spirit of the Earth Award. These publicly 21 recognize, on an annual basis, positive 22 environmental achievements made by Aboriginal 23 people or that directly involve Aboriginal people. 24 The intent of the Spirit of the Earth Award is to 25 promote environmental awareness and to recognize 4407 1 the culture and history of Aboriginal people. 2 Award winners are invited to attend a special 3 presentation ceremony linked to the National 4 Aboriginal day celebrations, which this year will 5 be June 21st -- I guess every year June 21st -- 6 and where they will receive their awards. 7 We also have a long-standing 8 environmental partnership fund. It has been in 9 place for maybe ten or a little longer, which is 10 available to all Manitobans, but we promote it 11 particularly in Aboriginal communities where we 12 will provide one-time or multi-year contributions 13 towards environmental projects that relate to our 14 activities and have a strong environmental energy 15 educational focus. 16 The sixth generic area that I talked 17 about is cultural awareness. The need to be 18 considerate of all people with whom the 19 corporation has contact is part of Manitoba 20 Hydro's corporate vision, and a competency that we 21 require in all employees, with specific reference 22 to the Aboriginals that we come into contact, we 23 offer opportunities for cross-cultural awareness 24 training for a wide variety of programs and 25 services which will improve employee's 4408 1 understanding of Aboriginal cultures. 2 A couple of examples are the Red 3 Willow Lodge program in Southern Manitoba, which 4 is relatively convenient for a lot of our 5 employees. It provides cultural awareness 6 workshops and seminars. A large number of our 7 employees have participated and it is open to 8 individuals or Aboriginals who want to learn and 9 experience the specific culture. 10 We also operate a two-day community 11 based cross-cultural awareness in Grand Rapids 12 community, which has a more northern flavour. 13 Again, it involves community residents, Aboriginal 14 groups and Manitoba Hydro employees. 15 We also make sure our managers arrange 16 for Aboriginal awareness presentations and 17 discussions at staff meetings whenever requested. 18 Again, these presentations and discussions are 19 geared to the individual group's needs, but they 20 do cover a wide variety of cross cultural 21 questions and issues. 22 In addition to these cultural 23 awareness programs, Hydro has worked with First 24 Nations and Manitoba Heritage Resources to support 25 the identification and preservation of cultural 4409 1 and heritage resources, including heritage and 2 burial sites. 3 We have been engaged in archeological 4 mitigation activities along the CRD route since 5 the 1960s. 6 In 1990, we entered into a formalized 7 relationship with the Province of Manitoba, 8 specifically the Historic Resources branch, on 9 what is known as the Churchill River Diversion 10 Archeological Program. The program conducts 11 archeological survey and mitigation activities in 12 conjunction with Nisichawayasihk Cree Nation, 13 South Indian Lake, the University of Manitoba and 14 the Manitoba Museum. 15 When we are invited, we are very 16 pleased and proud to be able to participate in 17 various ceremonies by the various First Nations, 18 both by representatives of the corporation, and in 19 many cases simply as individuals representing 20 themselves. 21 A third area is one -- for want of a 22 better term -- we call charitable donations. As 23 part of our corporate citizenship we make 24 donations and provide sponsorship and support 25 employee participation in a lot of community 4410 1 events across the province, and this includes a 2 lot of Aboriginal sponsored and Aboriginal 3 initiated programs, including sporting, cultural, 4 educational, and youth orientated activities. 5 I will give you a couple of examples. 6 Manitoba Hydro was an equal and level sponsor of 7 the 2002 North American Indigenous Games held in 8 Winnipeg and we will support and continue to 9 support local community powwows and other cultural 10 events. We try to help promote the community 11 spirit and, again, when invited, we will try to 12 participate in the community events. 13 It is with that information as a 14 backdrop that we are pleased to provide the 15 detailed information in the handout that we gave 16 in response to the undertaking. Now, that is 17 specifically limited to the communities of South 18 Indian Lake, Cross Lake First Nation and Grand 19 Rapids. We haven't given information on any of 20 the others. 21 I don't intend to go through those in 22 detail. I want to make sure that Mr. Abra has 23 something to read this weekend. 24 I would like to take the opportunity 25 to summarize the South Indian Lake, simply as an 4411 1 example. To date, we have spent in excess of $33 2 million at South Indian Lake on mitigation, 3 compensation and remedial works. And as I said 4 earlier, Manitoba has provided significant funding 5 of its own for other community infrastructure 6 facilities. 7 We paid over 1.6 million dollars as 8 compensation for trapping impacts through the 9 Registered Trapline Assistance program in the 1985 10 trapping settlement. We paid over 3.7 million 11 dollars as compensation to the commercial 12 fisherman through the Fisherman's Assistance and 13 Compensation Program and the commercial fishing 14 settlements. 15 As I talked about earlier, we have had 16 extensive efforts undertaken at South Indian Lake 17 to clean up debris and promote the safety of 18 residents. In the last four years, we have spent 19 nearly a million dollars on boat patrols and site 20 specific debris management activities. 21 To provide you with maybe a little bit 22 better understanding of the specific types of 23 efforts taken at South Indian Lake, we offer the 24 following examples from 2003: Between January and 25 April we provided $120,000 in funding to improve 4412 1 access for commercial fishermen on landlocked 2 lakes adjacent to South Indian Lake. Formerly, 3 fish and supplies could only be transported by 4 air, but with ground access, what this should do 5 is ease fishing pressure on South Indian Lake and 6 contribute to the sustainability of the fishing on 7 South Indian Lake. 8 In August, we provided 18,000 to 9 assist start-up activities for the fishery and in 10 the repair of a compressor ice machine at Sturgeon 11 Narrows. At the same time, we also provided 12 $10,000 to the South Indian Lake Commercial 13 Fishermen's Association to proceed with the 14 necessary upgrade to the fish freighting vessel. 15 Also, last summer, we spent about 16 $100,000 on the Debris Management Program in 17 addition to the regular program. We have 18 established a communication protocol to ensure 19 that the Fishermen's Association is aware of water 20 levels and flows through 60 and 30 day water level 21 forecasts. We also have a mechanism to ensure 22 that they are aware of any deviations from that 23 forecast in actual water levels as soon as we are 24 aware of them. 25 I should also note in respect to South 4413 1 Indian Lake that in the event that they are 2 successful in realizing their aspirations for 3 separate First Nation status, there are provisions 4 in place in the 1996 Nelson House NFA 5 Implementation Agreement to ensure that the lands 6 are available to them. 7 Each of the three programs that we 8 described in the handout contains elements of all 9 seven of the categories of activity that I talked 10 about before. 11 One last point I would like to make is 12 we spent a fair amount of effort talking about 13 money. By anybody's standard, the numbers, the 14 figures we are talking about are significant. But 15 I would like to reinforce the fact that it is not 16 only about money. We have to provide money to 17 compensate, and certainly you need money to be 18 able to move forward in a lot of areas, but we are 19 equally focused on developing long-term 20 sustainable relationships. 21 One of our corporate goals is to be a 22 leader in strengthening the working relationships 23 with the public Aboriginal peoples, and of course 24 Manitoba Hydro's corporate goals are part of the 25 public record. 4414 1 We have an organization unit at the 2 divisional level, which in our organization is 3 considered to be pretty high in the hierarchy of 4 things. This unit is the focus and the 5 coordinating point for all Aboriginal interactions 6 throughout the company, but we also recognize that 7 you can't run everything through the needle and so 8 it is the people on the ground in the field that 9 actually have to create these relationships. We 10 recognize in many cases there is a long way to go 11 and we are working on it. 12 I think we have to try to keep all of 13 these things in perspective. We all recognize 14 that there are huge issues throughout the whole of 15 Canada relating to past, present, and future 16 relationships with our Aboriginal citizens. And 17 we also need to recognize that in some cases 18 Manitoba Hydro has outstanding responsibilities. 19 We acknowledge that and we are working to address 20 them. 21 But, I suggest to you that overall, 22 Manitoba Hydro's record with respect to the 23 treatment of its Aboriginal neighbours and the way 24 it is working on the environmental issues 25 associated with our developments is one that we 4415 1 can be proud of. Thank you. 2 THE CHAIRMAN: Thank you, Mr. Adams. 3 Thank you, Mr. Bedford. It is not for me to 4 comment on what you both have stated, but I will 5 make a short comment. 6 I know that you have played your role 7 as counsel, Mr. Bedford, whether your client has 8 been obedient or wise, perhaps you have put -- the 9 number of questions that are raised sometimes puts 10 you in the position where you perhaps feel like 11 King Solomon, where you have to slice the baby in 12 half. 13 But I think -- and I speak for myself 14 and hopefully for members of the commission when I 15 say that perhaps it was timely that some of these 16 informations be put on the record because of the 17 concerns that are being raised, and it is not 18 always easy for the Chairman of the Commission to 19 slice, whether it is information that is being 20 placed on the record that is exactly as per the 21 guidelines, or whether it goes beyond. If you had 22 to be strict in that order, we might be 23 interrupting and slowing down the process by a 24 great deal. 25 But, to be fair, it is not always 4416 1 clear -- it is not that clear cut sometimes 2 whether it is cumulative effects pertaining to 3 what is happening now or what is happening in the 4 future or whether these issues that are happening 5 now or in the future, how they relate to past 6 events. Some of the examples, I guess -- or some 7 of the questions that have even come forth from 8 the panel or from myself can be shown as having a 9 link and that's why we ask them. 10 I think that instead of having 11 information, which may soothe a lot of minds, 12 brought forth bit by bit at a time, it is better 13 and serves a greater purpose when you can have the 14 whole picture. And hopefully you will fulfil a 15 useful role in that regard and I thank you. 16 MR. GREWAR: Mr. Chairman, if we might 17 enter as an exhibit, the two items that were 18 submitted then. The undertaking number 55: 19 Advise what has been done to address healing of 20 people, lands and water for South Indian Lake, 21 Cross Lake, and Grand Rapids, as Manitoba Hydro 22 exhibit MH/NCN 1032. 23 And MH/NCN 1033 would be the response 24 to questions from Grand Chief Margaret Swan, 25 transcript pages 1546 to 1549, volume 6. That 4417 1 would be exhibit MH/NCN 1033. 2 3 (EXHIBIT MH/NCN-1032: Answer to 4 undertaking number 55) 5 6 7 (EXHIBIT MH/NCN-l033: Response to 8 questions from Grand Chief Margaret 9 Swan, pages 1546 to 1549, volume 6) 10 11 THE CHAIRMAN: Mr. Mayer? 12 MR. MAYER: I wonder, Mr. Adams, if 13 you would be so kind to tender the documents that 14 you read from? 15 THE CHAIRMAN: It is on the record. 16 MR. ADAMS: I would be happy to tender 17 it. I prefer you give me the weekend to tidy it 18 up because I didn't -- it has handwritten scrolls 19 all over it. 20 MR. MAYER: I will get it off the 21 transcript. 22 THE CHAIRMAN: Just a follow-up to 23 that, it may be that the reporter will need to 24 refer back to you for some of the things, 25 especially a couple of the words that I myself 4418 1 would not be able to spell if I were in her shoes. 2 So, she may need some clarifications on those. I 3 don't want to speak for her, she is a lot better 4 at what she is doing than I could ever pretend to 5 be. 6 So with that, we will continue, unless 7 there are other undertakings that you want to file 8 at this time? Ms. Matthews Lemieux? 9 MS. MATTHEWS LEMIEUX: What I have 10 here is a guidebook on the summary of 11 understandings. It is one of an ongoing series of 12 documents that is being prepared in response to 13 questions that have been arising in the community. 14 Mr. Thomas had mentioned that we were 15 trying to respond to the various questions that 16 were arising outside of the IR process, and this 17 is just one more of the documents that is in the 18 process of being prepared. 19 I don't have, I guess, enough copies 20 for everybody right now, but I can provide a 21 couple. These have been hand delivered, I am 22 advised, in all households in Nelson House and 23 South Indian Lake and are in the process of being 24 mailed to other NCN members who don't live in 25 those two communities. 4419 1 THE CHAIRMAN: Thank you. 2 Mr. Grewar will take those and perhaps 3 put it on the record. 4 MR. GREWAR: Mr. Chairman, apparently 5 there is insufficient copies right now. There was 6 the thought that we had more copies. 7 THE CHAIRMAN: We can wait. 8 MR. GREWAR: We can wait, but we will 9 enter it as an exhibit. If you just give me one 10 moment, I will assign a number. It would 1034. 11 MH/NCN 1034: Guidebook, Summary of Understandings 12 between Nisichawayasihk Cree Nation and Manitoba 13 Hydro with respect to the Wuskwatim Project. 14 15 (EXHIBIT MH/NCN-1034: Guidebook, 16 Summary of Understandings between 17 Nisichawayasihk Cree Nation and 18 Manitoba Hydro with respect to the 19 Wuskwatim Project) 20 21 THE CHAIRMAN: Thank you. Mr. Abra? 22 MR. ABRA: Mr. Chairman, I have a 23 couple of short questions that I can ask, but in 24 view of the hour, I still have one significant 25 area that I don't think I will try to get into 4420 1 today. It is almost 4:15 now, we will be breaking 2 in 15 minutes. 3 THE CHAIRMAN: Do you want to finish 4 with those few questions and we will hold off the 5 other section? 6 MR. ABRA: The issue of sustainable 7 development, I will have to put off until some 8 time in the next few weeks, I guess. 9 THE CHAIRMAN: Thank you. Sir, is 10 this a point of order? I don't know, before I 11 hear it, I can't tell. 12 MR. BAKER: I will state my name. My 13 name is Chris Baker. I am the O-Pipon-Na-Piwin 14 Cree Nation headman from South Indian Lake. I 15 just want a point of clarity. In our belief in my 16 community, as the Treaty people have elected me, 17 we don't believe that the statement -- I am not 18 disagreeing with that, that is between Canada and 19 Manitoba -- but just for clarification from my 20 community's perspective, that we are independent, 21 we believe we are, rightfully we should be, and we 22 are not NCN? I am not a NCN headman, that is what 23 I wanted to tell you. 24 THE CHAIRMAN: Just a point of 25 clarification then. Thank you. 4421 1 All right, Mr. Abra, if you wish to 2 proceed with a few short snappers? 3 MR. ABRA: Thank you, Mr. Chairman. 4 Firstly, on this undertaking number 55 5 that has been provided, there are attached to it 6 as appendices 1, 2 and 3 what appear to be 7 newsletters. 8 Were these sent to the respective 9 First Nations that are shown in them, the one 10 related to South Indian Lake, the one related to 11 Cross Lake, and the one related to Grand Rapids, 12 and if so, when? I assume they were not just 13 prepared for the purposes of this hearing? 14 MR. WOJCZYNSKI: You're asking about 15 the package handed out today? 16 MR. SARGEANT: These brochures. 17 MR. ABRA: They appear to be 18 brochures. They have been given to us in response 19 to the undertaking, but what I am asking is 20 whether or not -- they don't have the appearance 21 of having been prepared for this hearing. So, I 22 am wondering whether they are documents that were 23 prepared some time ago, or were distributed in the 24 communities, or were available to the communities, 25 or what? That's what I am asking. 4422 1 MR. ADAMS: They were prepared over 2 the last week specifically for this hearing. 3 MR. ABRA: Over the last week? 4 MR. ADAMS: They were also prepared in 5 a form that we envisaged would made public because 6 it is a hearing, and therefore they were available 7 for distribution to anybody who wants them. 8 MR. ABRA: That's the reason they are 9 in the form they are? I see -- because they 10 appear to be in the form of a handout or a 11 brochure or whatever, but they have just been 12 prepared within the last week? 13 MR. ADAMS: Yes. 14 MR. ABRA: Okay. Thank you, Mr. 15 Adams. 16 MR. HICKS: Mr. Chairman, just prior 17 to the break I had made an undertaking to provide 18 the table of contents to the Access Management 19 Plan which NCN and Hydro are preparing for the 20 first transmission segment between Birchtree 21 station and Wuskwatim, and I believe that will be 22 provided now to Secretary Grewar. 23 THE CHAIRMAN: Thank you, Mr. Hicks. 24 MR. ABRA: I would like to ask a 25 couple of questions on decommissioning. The 4423 1 project guidelines, I believe, provide that there 2 is supposed to be a decommissioning plan and 3 associated reclamation plan prepared. Is it in 4 the process of being prepared, or what is being 5 done in that regard? 6 MR. REMPEL: Typically, when there are 7 no plans to decommission a facility, the 8 proponents will simply indicate that they have no 9 such plans in the foreseeable future to 10 decommission the facilities being proposed, but 11 that in the event that decommissioning is 12 necessary in the future, they will adhere to all 13 regulatory guidelines, principles in place at that 14 time. 15 So, no, there is not a decommissioning 16 plan for the station or the T lines. 17 That is discussed in volume 1 of the 18 GS, Generating Station EIS, page 2-1, it is at the 19 bottom of that page. It says: If the plants -- 20 in this case generating -- were to be 21 decommissioned, the earliest time frame would be 22 50 to 100 years. And it is pretty difficult to 23 forecast what the regulatory requirements might be 24 at the time, but there are commitments to adhere 25 to anything of the day. 4424 1 There is a footnote reference as well, 2 referring to article 2-9 of the 1996 NFA 3 Implementation Agreement. It says that if the 4 project, which is defined to include future 5 development such the Wuskwatim Generation Project, 6 is no longer utilized for the production of 7 hydroelectric power, Hydro covenants and agrees to 8 operate and maintain all such work, structures, 9 and improvements within its legal authority and 10 control as may be necessary to avoid, to the 11 extent reasonably possible, changes from the 12 parameters of the compensated range or such other 13 daily average water levels and rates of change as 14 may be agreed upon in writing by Nelson House. 15 So, there are commitments in the 16 implementation agreement and there are commitments 17 to adhere to any requirements related to 18 decommissioning in the event that decommissioning 19 is done in the future. 20 MR. ABRA: Okay, thank you. 21 A question that has occurred to us 22 with respect to the issues of mitigation and 23 monitoring, which we have heard quite a bit about 24 over the last couple of weeks, of course, and the 25 project development agreement, has there been any 4425 1 consideration given to actually putting clauses in 2 the project development agreement to be negotiated 3 between Manitoba Hydro and NCN on the issues of 4 mitigation and monitoring, in particular as far as 5 the environmental effects are concerned? 6 MR. WOJCZYNSKI: There will be 7 consideration of those factors in the agreements. 8 MR. ABRA: I am sorry, somebody else 9 was whispering in my ear, I didn't hear your 10 answer, Mr. Wojczynski? 11 MR. WOJCZYNSKI: I saw that and 12 waited. 13 First of all, we are, as we have 14 spoken before in this hearing, we are negotiating, 15 have begun the negotiation of an adverse effects 16 agreement; secondly, that there will be monitoring 17 from an environmental effects point of view, and 18 should the effects be different than predicted, 19 then part of the agreement, we would then mutually 20 work out what the new arrangements might have to 21 be in regards to mitigation, if the effects are 22 not what they are going -- if the effects are not 23 what are predicted. 24 MR. ABRA: Has there been discussion 25 about any clauses in the project development 4426 1 agreement as to whether references to monitoring 2 and mitigation might be fundamental features? 3 MR. WOJCZYNSKI: Fundamental features, 4 as per the summary of understanding, fundamental 5 features has a very specific meaning. 6 MR. ABRA: Yes, I know, that's the 7 reason I asked. 8 MR. WOJCZYNSKI: Monitoring will be a 9 basic requirement of the project, and it is 10 fundamental to the project -- but not using the 11 technical term fundamental feature as it is in the 12 SIU -- but clearly monitoring is something that is 13 committed to, monitoring is something that is 14 clearly being committed to as part of the project 15 and clearly would be part of the long-term adverse 16 effects arrangement. 17 MR. ABRA: Okay, thank you. 18 Finally, has there been any 19 consideration given to establishing any control or 20 reference locations in undisturbed parts of the 21 project to monitor natural changes over time to 22 see how they compare to areas that are affected by 23 the project as far as environmental impact effects 24 concerned? 25 MR. DAVIES: That was considered, and 4427 1 it has been discussed with the Department of 2 Fisheries and Oceans. We have selected some 3 reference areas, one of which is Threepoint Lake, 4 and we are also using a lake that I can't 5 pronounce -- "Kinosaqua" I believe is the name. 6 We are also collecting information on Lectric (ph) 7 Lake, which is a lake that is off the system and 8 is used by NCN for a variety of cultural and 9 resource harvesting purposes. References like 10 that have been selected. 11 MR. ABRA: What VECs are being 12 selected, Mr. Davies? 13 MR. DAVIES: The benthic 14 invertebrates, like the bugs that live on the 15 bottom is one of the things that we have included 16 in the aquatic monitoring program, and also fish 17 populations, and of course, water quality, which 18 will continue to be collected, not only on the 19 reference sites, but throughout the program area. 20 MR. ABRA: Okay, thank you. That's 21 all for now, Mr. Chairman. Thank you. 22 THE CHAIRMAN: Thank you, Mr. Abra. I 23 know Mr. Grewar has a number of filings he wishes 24 to add to the list. 25 MR. GREWAR: Thank you, Mr. Chairman. 4428 1 The first would be the undertaking just recently 2 entered: The Wuskwatim to Thompson Birchtree 3 station 230kV transmission line draft table of 4 contents for the access management plan as exhibit 5 MH/NCN 1035. 6 7 (EXHIBIT MH/NCN-1035: Wuskwatim to 8 Thompson Birchtree station 230kV 9 transmission line, draft table of 10 contents for the access management 11 plan) 12 13 MR. GREWAR: Now, Mr. Chairman, I 14 would like to enter a series of exhibits which 15 constitute the TREE/RCM, Time to Respect Earth's 16 Ecosystem/Resource Conservation Manitoba response 17 to the interrogatories and they are now filed in 18 their entirety. 19 I would just like to enter them as 20 exhibits as follows: TREE/RCM 1003 is the 21 response to interrogatory CNF/TREE/RCM/NFAAT 3 to 22 4 revised and 6 to 12. 23 TREE/RCM 1004, interrogatory responses 24 CAC/MSOS/NFAAT 1 to 9. 25 Exhibit TREE/RCM 1005 interrogatory 4429 1 responses MH/TREE/RCM/NFAAT 3, 1 to 12. 2 Finally, as Exhibit TREE/RCM 1006, 3 TREE interrogatory responses to the CEC, NFAAT 1 4 to 12. Those would be listed more thorough, 5 complete and consistent numberings in the actual 6 transcript, Mr. Chairman, but I wanted those 7 entered. 8 9 (EXHIBIT TREE/RCM-1003: Response to 10 interrogatory CNF/TREE/RCM/NFAAT 3 to 11 4 revised and 6 to 12) 12 13 (EXHIBIT TREE/RCM-1004: Interrogatory 14 responses CAC/MSOS/NFAAT 1 to 9) 15 16 (EXHIBIT TREE/RCM-1005: Interrogatory 17 responses, MH/TREE/RCM/NFAAT 3, 1 to 18 12) 19 20 (EXHIBIT TREE/RCM-1006: TREE 21 interrogatory responses to the CEC, 22 NFAAT 1 to 12) 23 24 THE CHAIRMAN: Does that complete the 25 list? 4430 1 MR. GREWAR: Yes. 2 THE CHAIRMAN: Mr. Grewar, when we 3 next reconvene, will it be in this hall? 4 MR. GREWAR: Yes, Mr. Chairman. We 5 convene here Tuesday morning, which is the 13th, 6 10:00 a.m. -- 10:00 to 6:00 I believe is the slated 7 time; the same for the Wednesday and the Thursday. 8 THE CHAIRMAN: Mr. Mayer? 9 MR. MAYER: Mr. Grewar, I have to be 10 in court on the Friday morning. 11 MR. GREWAR: That's right, not until 12 6 -- 4:30 on Thursday. 13 MR. MAYER: It better. 14 THE CHAIRMAN: Are there other 15 questions or comments? 16 MR. ABRA: The only other issue, 17 Mr. Chairman, is I will not be here on Tuesday, so 18 I won't be able to complete my cross-examination. 19 We will have to carry on some other time. 20 THE CHAIRMAN: Yes. Mr. Miller? 21 MR. MILLER: I would like to note a 22 correction in the transcript, I believe 23 yesterday's, page 3975, line 10. It was my 24 question to Elizabeth May: So, in other words, a 25 "corporation" can create contracts that have 4431 1 limited term for supply, rather than a 2 "government" can create contracts. Okay. 3 THE CHAIRMAN: Is this an appropriate 4 time to bring forth other corrections if there are 5 any? I am seeing none. 6 I wish everybody a good long weekend 7 and we will see you when spring has sprung. 8 Mr. Osler, you wanted to make a 9 comment? 10 MR. OSLER: No. 11 THE CHAIRMAN: I will now ask upon -- 12 I think Elder Dysart is not feeling well, so I 13 will ask upon another elder to come forward for 14 the closing prayer. 15 ELDER SPENCE: Thank you everyone. I 16 know it has been a long three days, still a few 17 more days to go. So everybody likes to get home 18 and rest their butt for a while. 19 Anyway, usually for me, when I am 20 asked to perform something like this in a crowd, 21 when it comes to giving praise to the Creator, I 22 feel a little different, especially if I were to 23 do it for a group of people like this. I would 24 say that same thing as Mr. Dysart would say, I 25 pray in my own language, and at the same time you 4432 1 can say a little prayer of your own at the same 2 time. 3 We will bow our heads in prayer. 4 (Prayer in Cree). 5 Thank you. Goodbye everybody and have 6 a good Easter. 7 8 (ADJOURNED AT 4:30 P.M.) 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 4433 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 4434 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 4435 1 2 3 4 5