4951 1 MANITOBA CLEAN ENVIRONMENT COMMISSION 2 3 VERBATIM TRANSCRIPT 4 Volume 21 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 15, 2004 22 Radisson Hotel 23 288 Portage Avenue 24 Winnipeg, Manitoba 25 4952 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 LIST OF PARTICIPANTS 4953 1 2 Manitoba Conservation: 3 Larry Strachan 4 5 Manitoba Hydro/NCN: 6 Doug Bedford, Counsel 7 Bob Adkins, Counsel 8 Marvin Shaffer 9 Ed Wojczynski 10 Ken Adams 11 Carolyn Wray 12 Ron Mazur 13 Lloyd Kuczek 14 Cam Osler 15 Stuart Davies 16 David Hicks 17 George Rempel 18 David Cormie 19 Alex Fleming 20 Marvin Shaffer 21 Blair McMahon 22 23 24 25 LIST OF PARTICIPANTS 4954 1 2 Manitoba Justice 3 Heather Leonoff 4 5 Manitoba Metis Federation 6 Jean Teillet 7 8 Canadian Nature Federation 9 Gaile Whelan Enns 10 11 Trapline # 18 12 Greg McIvor 13 14 O-Pipon-Na-Piwin Cree Nation 15 Chris Baker 16 17 18 19 20 21 22 23 24 25 4955 1 INDEX OF EXHIBITS 2 3 Number Page 4 OTH-1025: Consultation 5 Backgrounder, Consultations on the 6 Proposed Wuskwatim Generation and 7 Transmission Projects. Manitoba 8 Conservation and Fisheries and Oceans, 9 Canada, October 2003. Submitted by 10 Heather Leonoff 5050 11 OTH-1026: Consultation protocol 12 guideline, Consultations on the Proposed 13 Wuskwatim Generation and Transmission 14 Projects. Manitoba Conservation and 15 Fisheries and Oceans Canada, October 16 2003. Submitted by Heather Leonoff 5051 17 OTH-1027: Consultation support 18 costs guidelines, Consultations on the 19 Proposed Wuskwatim Generation and 20 Transmission Projects. Manitoba 21 Conservation and Fisheries and Oceans 22 Canada, October 2003. Submitted by 23 Heather Leonoff 5051 24 25 4956 1 INDEX OF EXHIBITS 2 EXHIBIT NO. PAGE 3 OTH-1028: Consultation process, 4 Proposed Wuskwatim Generation and 5 Transmission Project, Manitoba 6 Conservation and Fisheries and Oceans, 7 October 2003. Submitted by Heather 8 Leonoff 5052 9 OTH-1029: Manitoba's 10 consultation process in respect of the 11 Wuskwatim Development. Submitted by 12 Heather Leonoff 5052 13 OPN/PCN-1000: Cross examination reference 14 material with eight attached items 5081 15 CNF-1021: Importance of area and habitat 16 Heterogeneity to Bird assemblages in 17 Temperate forest Fragments, A document 18 on Biological Conservation" by 19 Kathryn Freemark and H.G.Merriam 5162 20 CNF-1022: Successful Utility Sector 21 Energy Efficiency Programs in the 22 United States of America, Sierra Club 23 of Canada, March 5, 2004 5162 24 25 4957 1 2 INDEX OF UNDERTAKINGS 3 4 UNDERTAKING NO. PAGE 5 6 MH/NCN-71: Advise re 7 archeological, cultural, heritage characteristics, 8 and relevance of Partridge Crop Hill area from 9 NCN's perspective 5111 10 MH/NCN-72: Advise re archeological, cultural, 11 heritage characteristics,and relevance of 12 Partridge Crop Hill area from 13 Manitoba Hydro's perspective 5115 14 15 16 17 18 19 20 21 22 23 24 25 4958 1 2 THURSDAY, APRIL 15, 2004 3 Upon commencing at 10:10 a.m. 4 5 THE CHAIRMAN: Good morning, ladies and 6 gentlemen. We begin this morning with the 7 presentation by Ms. Heather Leonoff. Ms. Leonoff, 8 would you come forward. 9 Ms. Leonoff, Mr. Grewar is going to 10 proceed first of all to swear you in. 11 MR. GREWAR: Could you please state your 12 name for the record, please. 13 MS. LEONOFF: Heather Leonoff. 14 MR. GREWAR: Ms. Leonoff, are you aware 15 that in Manitoba, it is an offence to knowingly 16 mislead this Commission? 17 MS. LEONOFF: I am aware of that, yes. 18 MR. GREWAR: Do you promise to tell only 19 the truth in proceedings before this Commission? 20 MS. LEONOFF: Yes. 21 MR. GREWAR: Thank you. 22 23 (HEATHER LEONOFF: SWORN) 24 25 MS. LEONOFF: I am the Director of the 4959 1 Constitutional Law Branch of the Justice Department, 2 the Government of Manitoba. It is my responsibility 3 to provide the Government of Manitoba with 4 constitutional advice on a broad range of issues. 5 One of the areas that my branch deals with is the 6 issue of Aboriginal and Treaty rights as protected by 7 Section 35 of the Constitution Act, 1982. In that 8 capacity, I, along with other of my colleagues in the 9 Justice Department, have provided the Government of 10 Manitoba with advice about a number of issues that 11 arise in respect of the proposed Wuskwatim Project. 12 A letter came to the Justice Department, 13 through Manitoba Conservation, requesting that 14 someone come and assist this Commission in 15 understanding some of the issues that arise under 16 Section 35 of the Constitution Act, 1982 as it 17 relates to the Clean Environment Commission and the 18 Wuskwatim Project. I am happy to be able to provide 19 that assistance to this Commission. 20 I wish to make it clear, however, that 21 the material that I am providing you is legal 22 opinion. I do not have factual information related 23 to anything concerning the actual Wuskwatim Project. 24 What I have is legal information, legal advice that 25 has been given to the Government of Manitoba, and 4960 1 more particularly, the advice that the Government of 2 Manitoba has chosen to implement in respect of 3 Section 35. 4 So while I responded to Mr. Grewar that 5 of course I would give you accurate information, I 6 must qualify that by saying that whenever one is 7 giving legal opinion, one is giving legal opinion. I 8 can't be -- I can only tell you it's our legal 9 opinion and it's the opinion that has been accepted 10 by the Government of Manitoba. 11 As you are aware, Section 35 of the 12 Constitution Act recognizes and affirms existing 13 Treaty and Aboriginal rights. Treaty rights, we have 14 a pretty clear understanding within the Province of 15 Manitoba of what that entails because we do know that 16 many of our First Nation bands are signatures to 17 numbered treaties. And those documents provide a 18 good indication of the rights that exist. 19 In the issue of something called 20 Aboriginal rights, we have a pretty good idea as to 21 generally what that entails. And for the most part, 22 they can be qualified or discussed as practices and 23 traditions that are integral to the Aboriginal 24 culture of various groups. 25 Those rights were recognized and affirmed 4961 1 in 1982. Those that existed within the Province of 2 Manitoba were recognized and affirmed in 1982. There 3 are many, many, many I stress, unanswered questions 4 in respect of Treaty and Aboriginal rights within the 5 Province of Manitoba and within the country as a 6 whole. 7 What lawyers do is take existing 8 principles and to the best of their knowledge, to the 9 best of their legal experience in consultation with 10 various colleagues around the country, we make 11 informed decisions about how to behave with many, 12 many unanswered questions existing. For example, 13 Section 35 recognizes existing treaty and Aboriginal 14 rights. What no one, and I stress no one, can 15 definitively know is what still exists as an 16 Aboriginal right within the Province of Manitoba. No 17 one can definitively know that. Why? Because we 18 have had no litigation in the Province of Manitoba in 19 respect of that matter. Manitoba's history is 20 relevant to determining what still exists within this 21 province. 22 As many of you are aware, in 1870, when 23 Manitoba came into Confederation, it came in with a 24 provision in its 1870 Constitution, Section 31 of its 25 1870 Constitution, that addressed what were then 4962 1 called half-breed, now we would call them Metis 2 rights. And there was a distribution of 1.4 million 3 acres of land towards what was then called the 4 extinguishment of Indian title. 5 The northern part of Manitoba came into 6 Confederation later on in time. And when it did so, 7 it came in under provisions of the Dominion Lands 8 Act. That document as well contained provisions that 9 dealt with what were then called half-breed rights. 10 The effects of those documents on the 11 landscape in Manitoba, on the legal landscape in 12 Manitoba has never been litigated or determined. 13 Therefore, we, as lawyers, make educated assessments 14 of how to deal with issues. When I say that there is 15 no one who can answer definitively, I mean that 16 totally, not even the Chief Justice of Canada can 17 tell you today what rights exist in the Province of 18 Manitoba definitively because it has not been 19 litigated before that Court. And even though she may 20 have some very important views on the matter, she 21 would have to attract four other of her colleagues 22 before we would have a definitive position. 23 I simply stress this to help the Panel 24 understand that all of us are on somewhat unchartered 25 territory. And because of that, we make assessments, 4963 1 we do our best. We provide legal advice and we take 2 direction from those in government that direct policy 3 and we proceed. 4 Manitoba has decided, in respect of the 5 Wuskwatim Project, to undertake an extensive, what we 6 call, consultation process. Consultation is a 7 concept that the Supreme Court of Canada directed in 8 situations where governments may infringe upon a 9 Treaty and Aboriginal right. 10 It is important to recognize that under 11 our Constitution, while there are Treaty and 12 Aboriginal rights that are protected, they are not 13 carved in stone. They can be infringed. They can be 14 infringed when the reason for infringement is 15 compelling. They must be infringed to the minimal 16 extent possible. And in order for the government to 17 understand the nature of these Aboriginal rights or 18 Treaty rights that are asserted, in order for the 19 Crown to understand the impact of some of its 20 proposed actions or policies, in order for the Crown 21 to get the best possible information it can get about 22 how to minimally impair these rights, the Supreme 23 Court has directed that when something like this is 24 going to occur or might occur, where there might be a 25 Crown action that could infringe a Treaty or 4964 1 Aboriginal right, that the government engage in what 2 we call meaningful consultation. 3 Consultation is not a word that the 4 Supreme Court chose lightly, it is an important word. 5 It is important to understand what consultation is 6 and perhaps, more importantly, what consultation 7 isn't. 8 Consultation is a process of two-way 9 communication. It is the giving of information by 10 the Crown to Treaty and Aboriginal rights holders, 11 potential Treaty and Aboriginal rights holders, and 12 it is equally important, if perhaps not more 13 important, for the Crown to get information back. It 14 is a process of the Crown learning and understanding 15 the nature of the right that is alleged, the cultural 16 impact that any particular Crown project might have 17 to learn from the people who are most affected and 18 who are closest to the project, how effects might be 19 minimized or mitigated. It is a process of 20 communication. It is not mere information or 21 notification by the Crown about what it's doing or 22 intends to do. It is not, equally, negotiation. It 23 is not a process which is designed to reach an 24 agreement, it is a process designed to educate the 25 Crown. 4965 1 The Supreme Court's concern and why they 2 picked this need to educate the Crown is because the 3 Court recognized that the Crown is not in the best 4 position to always understand or know how its actions 5 might impact on a culture, on a way of life, on a 6 history and the Crown must become educated. So 7 consultation is a process of educating primarily the 8 Crown but of course educating -- before the Crown can 9 be educated, it must first educate the people that 10 it's going perhaps to impact on about what would in 11 fact happen if a Crown process was put into 12 operation. So that those people can then respond 13 back about how that process or that project or that 14 Crown action might impact on their community, on 15 their way of life, on their culture, on their 16 history, on their religious practices. And to find 17 out from the people who are closest to the process, 18 how matters can be mitigated or their impacts 19 reduced. 20 So in regard to the Wuskwatim project, 21 the Government of Manitoba determined that because it 22 ultimately, as a Crown, must, if this project is to 23 go ahead, issue a water power licence, it determined 24 that it needed to enter into a consultation process 25 because the Wuskwatim project potentially impacts on 4966 1 Treaty and Aboriginal rights. And so it has done so. 2 It has entered into a process which is designed to do 3 that, which I made reference to a few moments ago, 4 to, number one, educate the communities within the 5 project area. Number two, to learn from the 6 communities within the project area what the 7 potential impact may be on their culture, their 8 history, their traditions, their religion. Those 9 aspects of their life, which is protected or 10 potentially protected by Section 35 of the 11 Constitution. 12 That process is under way. It is an 13 extensive process and it is a process that is 14 separate and apart from numerous other processes 15 which are available to the government to become a 16 better government. Government, when it makes a 17 decision, wants to make the best possible decision 18 that it can make. Government wants as much 19 information about something before it makes a 20 decision. That's the nature of the Clean Environment 21 Commission. It is set up by the Province of Manitoba 22 to provide as much advice and information within its 23 mandate that will help the government to be a better 24 decision maker. 25 Your mandate includes the ability to look 4967 1 at economic and cultural impacts of the proposed 2 Wuskwatim project on communities and Aboriginal 3 communities within Northern Manitoba or within 4 Manitoba. 5 That part of your mandate is intentional. 6 It's written there intentionally. Because the 7 Government, the Crown, can obtain information in a 8 variety of ways, it must obtain information under 9 Section 35. It must do that. That is a 10 Constitutional requirement that the Crown has to do 11 and it is doing. But in the same breath, Government 12 regularly consults as what we call a matter of good 13 Government, of being a good and responsible 14 Government. 15 The CEC process and the particular phrase 16 within your mandate to look at cultural impact is 17 there to provide a secondary source. It is not 18 Section 35 consultation, it is a secondary source. 19 The Government, the Crown, must, by itself, do 20 Section 35 consultation. It cannot delegate that to 21 anyone. It cannot delegate that to a corporation or 22 to any other source. It must do Section 35 23 consultation. 24 But there is nothing that prevents 25 government from getting more information if it wants, 4968 1 if it chooses. And your mandate is to get additional 2 information or in a different process to get what 3 information you can within your mandate from any of 4 your participants who wish to speak about the 5 cultural impact of this project on their communities, 6 on their way of life, on their history. 7 That is a super-added or secondary 8 process. It is not Section 35 consultation. 9 And there might be other ways that the 10 Government is going to get information on cultural 11 impacts or social impacts in respect of this project. 12 People may write letters or there might be some other 13 presentation directly to ministers for example. 14 That's fine. You can get information from a variety 15 of sources but you must keep that separate. Section 16 35 is a constitutional obligation. The CEC 17 Commission is another important methodology of 18 getting information but it rests within a statutory 19 mandate and of particular terms of reference. 20 The Crown, in respect of the Wuskwatim 21 consultation had to make, and that's the Section 35 22 Wuskwatim consultation, had to make some realistic 23 decisions about how to do it. The decision that was 24 made as to how to do it was to contact the 25 communities that were most closely physically related 4969 1 to the project. Some of those communities are First 2 Nations communities which have a well-defined 3 political structure. Some of those communities are 4 Northern Affairs communities which have a high 5 proportion of Metis and other Aboriginal inhabitants. 6 I use the phrase "Metis and other 7 Aboriginal inhabitants" intentionally. As you are 8 aware, Section 35 protects the rights of the 9 Aboriginal peoples of Canada which include the 10 Indians, Metis and Inuit but only include, there are 11 other, there are other Aboriginal people in Canada. 12 Particularly, there is a large group of Aboriginal 13 people that we refer to sometimes as non-status 14 Indians. 15 It is important to recognize that the 16 Supreme Court has spoken on the issue somewhat about 17 the difference between a Metis person and a person 18 who is not a First Nations member, sometimes called a 19 mixed blood person. They have indicated that those 20 people are different, that Metis is a specific 21 culture. It is a specific group of people. It is a 22 group of people who descend in Manitoba from 23 individuals who obtained rights in 1870 under Section 24 31 of the Manitoba Act. It is a group of people who 25 as well descend from individuals who obtained rights 4970 1 under the Dominion Lands Act and others who have 2 moved into the community who may have come from other 3 locations. But it is a specific cultural group. 4 There are other people who are neither First Nation 5 nor Metis but are in a group called Aboriginal 6 people. 7 The exact rights afforded to those people 8 under the Constitution are unclear. I go back to 9 some of my earlier statements. We, as lawyers, can 10 give the best possible advice that we can to our 11 clients, be it government or anybody else. But 12 within the Province of Manitoba, within the country 13 itself, it is very very difficult and impossible for 14 anyone to definitively say exactly what rights exist, 15 who exactly has them. No one can make those 16 definitive statements. We give our best advice 17 possible. 18 In this regard, we have given the 19 Government of Manitoba advice and the Government of 20 Manitoba has made a decision that it will do its 21 consultation within communities that are close to the 22 project. And that is a decision that the Crown has 23 taken and that is the way we have structured and our 24 coordinator has structured the consultation process. 25 Those are the comments that I wished to 4971 1 make to give you a basic understanding of our 2 process. I am happy to answer any of your questions 3 or to try and clarify particular issues that may be 4 of concern to the Commission. 5 THE CHAIRMAN: Mrs. Leonoff, do you make 6 a distinction between communities and Aboriginal 7 groups? 8 MS. LEONOFF: Communities -- yes, I do 9 make a distinction. Communities are the rights 10 holders. Supreme Court has been very very clear that 11 Aboriginal and Treaty rights are not individual 12 rights, they belong to communities. They are what we 13 call communal rights. 14 In the First Nation context, that works 15 quite easily. I don't know about easily, but easier, 16 because First Nations, for an extensive period of 17 time, had a clear structure. They have clear land 18 base. They have a clear political structure. And so 19 First Nation communities are rights holders, not 20 individuals. 21 Other communities can have Aboriginal 22 rights. Metis communities, for example, some within 23 the Province of Manitoba may have Aboriginal rights. 24 Some other communities of Aboriginal people may have 25 Aboriginal rights. But what the Supreme Court has 4972 1 told us is that we must identify communities that 2 contain these rights. And that is an ongoing 3 process. It is going to take, I can't indicate, but 4 it will take a lengthy period of time to figure out 5 which communities, which distinctive communities, the 6 Supreme Court speaks of distinctive, collective 7 identities, groups that have distinctive collective 8 identities. We need to find those groups, identify 9 those groups and then ascertain which of those groups 10 have rights and what those rights are. 11 In the interim process, the Manitoba 12 Government, the Crown has chosen to deal with 13 communities that are physically, have a physical 14 structure to them and those are the Northern Affairs 15 communities in respect of this project. 16 THE CHAIRMAN: You say the Northern 17 Affairs communities as if you were using the word in 18 terms of a place, a community as being a town. And 19 yet when you were speaking of communities before, you 20 were referring to groups. Now you're using, it seems 21 to me, the word community with two meanings here? 22 MS. LEONOFF: Well, I am using the word 23 "community" to mean a group of people with a 24 distinctive culture and identity. That's the way I 25 am using the term. 4973 1 THE CHAIRMAN: Okay. So if that group 2 with the same cultural identity is spread over a 3 large area of Manitoba, it's not the place where the 4 inhabitants are but it's the group in its entirety 5 that you are referring to as community? 6 MS. LEONOFF: The group that's spread 7 over the Province of Manitoba could be a group with a 8 distinctive collective Metis identity, it might not 9 be. I don't know, it's hypothetical to me. You need 10 to -- it's too early to determine, in the Province of 11 Manitoba at this point, what groups have this 12 significant distinctive collective identity that 13 gives them some Aboriginal rights and what those 14 Aboriginal rights are. 15 THE CHAIRMAN: Is the group Metis? I 16 seem to have heard you say was one of those groups. 17 MS. LEONOFF: Well, certainly the Metis 18 have some -- the Supreme Court has said that some 19 Metis groups, certain Metis groups may have certain 20 Aboriginal rights. The Supreme Court has only spoken 21 to one Metis group. It has spoken to a Metis 22 collective in and around the City of Sault Ste. Marie 23 in the Province of Ontario. That's the only one that 24 we know in the Country of Canada, that we 25 definitively know within the Country of Canada that 4974 1 has Aboriginal rights. 2 We need to draw a hypothesis. We need to 3 make some educated guesses about how to extend what 4 we know about the group of Metis people who live in 5 and around the City of Sault Ste. Marie to the 6 Province of Manitoba. We have attempted to do that. 7 We are in the process of doing that in a large 8 context. We also are doing it in a more narrower 9 context related to Wuskwatim. 10 The decision that has been made by the 11 Government of Manitoba is to deal with Metis people 12 in the north in their physical town communities, if 13 you will, those physical areas. That's been the 14 decision. 15 THE CHAIRMAN: As part of the 16 consultation which the government has the mandate to 17 consult? 18 MS. LEONOFF: Which the Crown has the 19 mandate to consult under Section 35. 20 THE CHAIRMAN: How does the government 21 propose to consult the Metis people in the 22 communities of the north of Manitoba? 23 MS. LEONOFF: Well, the consultation 24 process has been developed with staff that have been 25 chosen to do that. They are consulting with those 4975 1 people through meetings and other assorted kinds of 2 events to try and hear from the people in the north 3 under Section 35. 4 THE CHAIRMAN: Is the government 5 proposing to consult with the Manitoba Metis 6 Federation? 7 MS. LEONOFF: Under Section 35, the 8 Government of Manitoba is allowing -- or not 9 allowing, the Government of Manitoba is happy to have 10 the MMF participate in any of the consultation 11 processes that it is having in the northern 12 communities. If those communities wish to involve 13 those individuals, more particularly, the Government 14 of Manitoba will hear of the MMF's concerns through 15 this process, through the CEC process. 16 In the CEC process, the MMF is a funded 17 participant. And as I tried to point out earlier, 18 there are two parallel processes. The MMF is a full 19 participant here to provide as much information to 20 the Government of Manitoba through your ultimate 21 report. 22 THE CHAIRMAN: I realize that but my 23 question was specifically as part of the mandate 24 consultation that you were referring to, were you 25 proposing to consult the MMF specifically? 4976 1 MS. LEONOFF: If the communities desire 2 that, then they will be involved in providing us with 3 information. Remember what consultation is. It's an 4 exchange of information. It is providing us with 5 information, us meaning the Government of Manitoba, 6 the Crown, providing the Crown with information about 7 the impact of proposed activity on the rights in that 8 community, in that area. And if the community wishes 9 someone from the MMF to participate, absolutely, 10 provide the information through that process. 11 THE CHAIRMAN: Does the Government of 12 Manitoba recognize the MMF as one of those 13 distinctive Aboriginal groups under Section 35? 14 MS. LEONOFF: No. A political group 15 doesn't have Section 35 rights. Section 35 rights 16 belong to communities. So it's communities of some 17 sort that have rights, not a group like that. It has 18 to be communities, the Metis people. Some Metis 19 people have rights, we're quite confident of that, 20 but not an organization. 21 THE CHAIRMAN: You seem to indicate Metis 22 people as individuals now. 23 MS. LEONOFF: No, Metis people as 24 communities, people as a collective. 25 THE CHAIRMAN: You indicated a while ago 4977 1 at the outset of your comments that there are still a 2 lot of vague aspects to this until the Supreme Court 3 judgments make pronouncements. And is it not a fact 4 that government policies or pronouncements are part 5 of the components which Courts use to arrive at 6 decisions? 7 MS. LEONOFF: I'm not sure I could answer 8 that. 9 THE CHAIRMAN: For instance, if 10 governments establish policies? 11 MS. LEONOFF: Um-hum. 12 THE CHAIRMAN: Because you used that word 13 policies from government? 14 MS. LEONOFF: Right. 15 THE CHAIRMAN: Are they not parts of the 16 components which Courts make decisions, based on your 17 knowledge of past Court decisions? 18 MS. LEONOFF: I really couldn't comment. 19 I really couldn't say. I mean sometimes do they look 20 at policies to help formulate? I really couldn't 21 say. 22 THE CHAIRMAN: So you cannot indicate 23 whether, for instance, a government through its 24 official positions on, for instance, such matters as 25 the Metis has not recognized obligations on its own 4978 1 in regards to the Metis? 2 MS. LEONOFF: There is an obligation 3 under Section 35 and there is an ability of 4 government to do things that it's not obligated to 5 do. That's the best I can -- I'm not sure I 6 understand your question beyond that. 7 THE CHAIRMAN: Well, I have a difficulty 8 in understanding the point you make in terms of 9 communities and consulting, for instance, Metis as 10 part of communities where in a community, because you 11 seem to be referring to communities of the north, 12 for instance, in that context, I hear you say 13 communities such as a place, Nelson House or Norway 14 House, in which there may be some Metis individuals. 15 They are not necessarily a Metis community. 16 MS. LEONOFF: No, I understand that the 17 Government of Manitoba has chosen a way to deal with 18 consultation. Whether that is the best way, that's 19 the way it has decided to do it. It has determined 20 that that is the best way to do it. If others 21 disagree, there is a forum to raise and challenge 22 that. It's not this proceeding but consultation is a 23 legal concept. Legal concepts are subject to Court 24 rulings and that's the decision of the Government of 25 Manitoba. 4979 1 That's my response to you, sir, which is 2 that's the decision of the Government of Manitoba. 3 That's the one they have picked. And that's the 4 process by which it is following that process. 5 THE CHAIRMAN: Okay. One final question. 6 And the reason I'm asking those questions, they came 7 forth through the Commission early on on a motion 8 that the Commission heard in September. 9 My final question is this. The 10 Government of Manitoba has not decided to consult the 11 Metis people as an Aboriginal group per se? 12 MS. LEONOFF: Oh, no. The Government of 13 Manitoba has determined that some Metis people, some 14 Metis communities within the Province of Manitoba may 15 have Aboriginal rights. In order to follow through 16 on that, it has put together a consultation process 17 that includes consultation with individuals, or not 18 with individuals, I'm sorry, with communities that 19 have a strong metis component and with communities 20 that have a strong general Aboriginal component. 21 Because remember, Metis and sort of mixed blood 22 people may be different groups or are different 23 groups. 24 So the Government of Manitoba has clearly 25 recognized that there may be communities within the 4980 1 Province of Manitoba that have Metis rights. We 2 aren't definitively saying which communities, what 3 rights those are. That's why we're having a 4 broad-based consultation to find out which 5 communities are telling us that there will be an 6 impact on their history, culture and traditions. 7 THE CHAIRMAN: I know. But you said the 8 Government of Manitoba has decided to consult Metis 9 communities. Would you name me one of these 10 communities. 11 MS. LEONOFF: I can't. I don't know that 12 I have a list. I'm not doing the consultation so I 13 don't know which communities are or are not being 14 consulted. It will be easy enough to get them. 15 THE CHAIRMAN: A community that is a 16 Metis community, you don't know of any Metis 17 communities? 18 MS. LEONOFF: I don't know which 19 communities are being consulted. I don't have that 20 information. I don't physically do the consultation. 21 THE CHAIRMAN: But you don't know if any 22 Metis community will be consulted? 23 MS. LEONOFF: I know that there are 24 communities that are being consulted which our 25 understanding is that they have a high proportion of 4981 1 Metis or Aboriginal people that live within those 2 communities. 3 THE CHAIRMAN: I'll leave it at that. 4 The question really hasn't been answered. I don't 5 hear you say that -- you're saying that there will be 6 some individuals in the community and earlier on you 7 were talking about collective rights and that's why I 8 was wondering which group, per se, which represents 9 the collective is going to be consulted that 10 represents the Metis. And I haven't heard a response 11 to that. 12 MS. LEONOFF: And my response is that 13 this is the process that has been chosen by the 14 Crown, it is a process which the Crown is comfortable 15 in. And if others are not comfortable within that 16 process, there is a process by which to have it dealt 17 with. It is not an issue for the Clean Environment 18 Commission to determine how the Province of Manitoba 19 conducts its Section 35 consultation. 20 THE CHAIRMAN: Mr. Sargeant. 21 MR. SARGEANT: Thank you, Mr. Chairman. 22 Ms. Leonoff, first of all, let me thank you for your 23 presentation. As a former student of yours, I find 24 that you are still able to explain somewhat 25 complicated legal concepts clearly and succinctly. 4982 1 I'm not going to ask you any questions, 2 I heard what you were saying about this separate 3 process so I'm not going to ask you any questions 4 about how the Government of Manitoba is conducting 5 this consultation but I would like some guidance on 6 how we are to deal with some issues that had been 7 raised before us. 8 Mr. Lecuyer noted that we had a motion 9 presented to us by the Manitoba Metis Federation last 10 fall. It was bought up again at a motion's hearing 11 in January. And as I understand it, they are relying 12 on Recommendation 4.1 of the Aboriginal Justice 13 Implementation Commission which reads, in part, that, 14 "Any future major natural resource 15 developments not proceed unless and 16 until agreements or treaties are 17 reached with Aboriginal people and 18 communities in the region including 19 the Manitoba Metis Federation and its 20 locals and regions." 21 As I understand the position of the 22 Manitoba Metis Federation, as they've put it to us, 23 it's their position that this clause indicates that 24 they are the sole political representative of what 25 they refer to as the Metis nation in Manitoba. 4983 1 They've also asked us in the motion that 2 was considered in January that the Clean Environment 3 Commission recommended to the Minister that the 4 co-proponents, Manitoba and Canada as appropriate, be 5 directed to work directly with the MMF to design and 6 immediately enter a separate meaningful, proper and 7 effective Metis consultation process to be undertaken 8 through the MMF. 9 I guess the guidance that I would like is 10 is it correct that the Manitoba Metis Federation, by 11 this recommendation of the AJIC, is the sole 12 political representative of the Metis people of 13 Manitoba and are we, as a Commission, do we need to 14 abide by that? 15 MS. LEONOFF: Let me deal first with a 16 couple of points in your question. The 17 recommendation 4.18 of the AJIC is exactly that. 18 It's a recommendation. It forms a backdrop of 19 government policy. It does not have any force in 20 terms of the rule of law. It is -- 21 MR. SARGEANT: Can I just interrupt on 22 that. But it does have political force I believe in 23 that at least one or two Cabinet Ministers have said 24 that the Manitoba Government would abide by or would 25 adopt those recommendations? 4984 1 MS. LEONOFF: And I'm not going to speak 2 to political issues. That's not my job. 3 MR. SARGEANT: Okay. 4 MS. LEONOFF: I can speak to legal 5 issues. 6 MR. SARGEANT: That's fair enough. 7 MS. LEONOFF: It is a backdrop of a 8 methodology of proceeding. And in that regard, it 9 has -- in the context of looking at that, it talks 10 about territory, looking at people whose territory 11 might be affected. The Government of Manitoba under 12 Section 35 is looking at physical territory. And 13 that's why it has chosen physical communities, to 14 deal with some of the Chairman's comments. It's 15 chosen physical communities because of that 16 territorial type of issue. 17 And so in terms of this Commission's 18 jurisdiction, its jurisdiction is statutory and of 19 course by its direct mandate of the questions that 20 were put to it to be answered. 21 And so one of the issues that I know that 22 you've been given to answer is effect on culture. 23 And in that regard, the Manitoba Metis Federation is 24 here to speak about effect on culture in a 25 province-wide basis if it so chooses to do so. And 4985 1 the report that you write to government will be based 2 on your statutory and your mandate. 3 And I hope that answers. I know there 4 were a number of comments in your question. I may 5 have missed some of them. 6 MR. SARGEANT: I think you did answer. I 7 mean the issue before us, to repeat myself, is 8 whether or not or I guess what authority to accord to 9 Recommendation 4.1. And you're saying that in law, 10 there's little authority and you can't comment on 11 political things but politically or in policy-wise, 12 it may have some influence. 13 MS. LEONOFF: And again, it's not for me 14 to comment on politics or policy. In terms of law, 15 it's quite clear, it has no legal effect. 16 THE CHAIRMAN: Mr. Mayer. 17 MR. MAYER: Ms. Leonoff, I wasn't a 18 student. You and I spent a number of days and I 19 guess sometimes weeks in a courtroom in Churchill 20 where you argued that the guidelines, which were only 21 guidelines, regarding the child custody ought to be 22 accepted by a Court. And you were, if I recall 23 correctly, almost singularly successful in that 24 argument. 25 MS. LEONOFF: I'm glad you have memory of 4986 1 this because I don't. 2 MR. MAYER: You forget Churchill? 3 MS. LEONOFF: I don't forget Churchill. 4 MR. MAYER: In any event -- 5 MS. LEONOFF: Did I win the case? 6 MR. MAYER: Yeah, you did. 7 MS. LEONOFF: Usually I remember the 8 wins. 9 MR. MAYER: Well, you see sometimes it's 10 useful to remember the ones you're not quite so 11 successful in. And I unfortunately have a few of 12 those. 13 Looking at your written presentation, and 14 you have invited or the government has invited 10 15 Aboriginal communities. And I heard you say 16 Aboriginal communities in that context means Northern 17 Affairs communities. I am therefore making a leap of 18 faith that the 10 Northern Affairs communities are 19 the 10 communities which are within the project area 20 or fairly close thereto? 21 MS. LEONOFF: Yes, that's correct. And 22 if you need the names, I can get them in a matter of 23 minutes. 24 MR. MAYER: No, no, I know the names. 25 One of them is Wabowden. And I am not entirely sure 4987 1 you could describe that as an Aboriginal community at 2 the best of times. It was named after a station 3 agent by the name of W.A. Bowden who worked for the 4 railroad at the time. I have acted for the community 5 on occasion. There is certainly a significant 6 percentage of non-status Aboriginal people and a 7 significant number, quite frankly, of Aboriginal 8 people from the Cross Lake Band who live in the 9 community. But I am sure that is one of the 10 communities that has been asked to consult. 11 So I wonder exactly what was the 12 standard, other than the fact that there were 13 Northern Affairs communities which means that they 14 are too small to be incorporated as a town and don't 15 choose or, for some reason, whether or not going to 16 be part of a rural municipality. But was there any 17 other criteria used to select these communities other 18 than the fact that they were governed under the 19 Northern Affairs Act? 20 MS. LEONOFF: The criteria that was used 21 was to try to get, to understand, to go back to the 22 principles of what consultation is all about. 23 Consultation is designed to obtain information about 24 impacts of a proposed project or a proposed 25 government activity on Aboriginal rights and Treaty 4988 1 rights. The Treaty communities were quite easy to 2 pick. You know which communities have Treaty rights. 3 It's very difficult to determine which communities 4 and how to properly consult. 5 The Government of Manitoba looked to a 6 way of getting information from people who are in 7 those communities that can help us, as a government, 8 and ultimately the Cabinet who will ultimately make a 9 decision in respect of this project to understand 10 what impact this project will have on this group of 11 rights we call Aboriginal rights, essentially 12 culture, history, traditions. 13 A decision was made to look at how is the 14 best way to talk to those individuals that could tell 15 us about the community's history, traditions, culture 16 and that was the determining factor. It was physical 17 to the project's environmental impact. So that there 18 is a physical -- a territory surrounding the actual 19 project miles from it, or whatever, a certain 20 physical. 21 Again, that's the decision that the 22 Government of Manitoba has made and that's the way 23 it's doing it. If people, certain people don't like 24 that, there is a process by which to dispute it. 25 MR. MAYER: That process I understand is 4989 1 to toddle off to court which some of us believe turn 2 out to be exceedingly complex and very expensive. 3 But understanding that that is where it's coming from 4 and understanding or giving the advice to the 5 province and understanding that the obligation is to 6 consult members of a community, however you define 7 it -- with all due respect, defining a non-Aboriginal 8 community as a specific place like Wabowden or 9 Thicket Portage or Pikwitonei strikes me as a strange 10 way to do it, but having done that. 11 I live in a community that is 12 approximately -- better than 40 per cent Aboriginal. 13 There is no doubt we are on the Burntwood River. And 14 yet we are not a Northern Affairs community. What, 15 if any, consultation will take place with the 16 citizens of the City of Thompson, 40 per cent of whom 17 are Aboriginal and a significant proportion of those 18 are non-status? 19 MS. LEONOFF: I think the answer to that 20 is I don't know. I am not doing the actual 21 consultation. The idea is to obtain as much possible 22 information from people, from whoever wants to come 23 to these meetings, that are well advertised and open 24 to community members to give information to the 25 government about the impact on culture and history. 4990 1 That's the focus. 2 How physically it's being carried out is 3 being done by others, not by me. And I repeat, if 4 it's -- I don't -- I can't -- I accept your premise 5 that it's expensive and difficult to challenge it but 6 the Government has to make legitimate decisions about 7 how to carry out the consultation. It has made a set 8 of legitimate decisions. I'm not saying it's the 9 only way it could have been done, I'm saying they 10 have made a decision. It has made a decision of a 11 legitimate process and it is prepared to defend that 12 process in the right forum. 13 MR. MAYER: Ms. Leonoff, I suppose what 14 this submission is concerned about is your second 15 last sentence, that the government has established a 16 legitimate process. I think you will find that the 17 word "legitimate" will be challenged by a number of 18 people and I recognize that this Commission doesn't 19 have any specific authority in this regard. In fact, 20 we have very little authority at all. We make 21 recommendations. 22 If this Commission should decide that it 23 is in the best interest of the Province of Manitoba 24 and the consumers of Manitoba Hydro and generally 25 the -- and it won't devastate the environment to the 4991 1 extent that we would have to recommend against the 2 project, then don't we have an obligation because we 3 are, as a Commission, the group that is statutorily 4 required, considering our specific mandate for these 5 hearings, to look after the interests of the people 6 of Manitoba? Would we not be neglecting our duty if 7 we thought the Section 35 process was insufficient to 8 so advise the Minister to whom we report? 9 MS. LEONOFF: You can get legal advice 10 from your own lawyer. It's a question of whether 11 that's within your mandate. I am not going to tell 12 you what my legal opinion is. My legal opinion is 13 read your Terms of Reference. 14 MR. MAYER: I just did that before I 15 asked the question. 16 MS. LEONOFF: And your Terms of Reference 17 allow you to look at cultural impact but it does 18 not -- and your tribunal under the law, you can get 19 your own legal advice, but it is not its -- within 20 its mandate, at least from my reading of your Terms 21 of Reference, to deal with the Section 35 issue. 22 That is a legal process. 23 MR. MAYER: Thank you very much. I have 24 no further questions. 25 THE CHAIRMAN: Thank you. Ms. Avery 4992 1 Kinew. 2 MS. AVERY KINEW: Hi, Ms. Leonoff. Thank 3 you for coming. I'd just like to clarify where you 4 are at in the paper that you tabled and you discussed 5 today that you have invited a number of communities. 6 At what stage are you at, you said there's stage 1, 7 2, 3? 8 MS. LEONOFF: Most communities, I think 9 they are getting ready to go into stage 2. But 10 again, I don't do the consultation. I advise on 11 legal matters. I don't physically do it and I think 12 in some of the communities, they are moving into 13 stage 2. 14 MS. AVERY KINEW: And in stage 3, it says 15 that Manitoba Hydro might be invited, would that also 16 be the co-proponent NCN, to explain? This is the 17 part of educating the people so that they can educate 18 the Crown? 19 MS. LEONOFF: Yes. I mean the obligation 20 to do consultation rests with the Crown, it does not 21 rest with proponents. Yes, NCN could be invited if 22 there is information sharing. That's the process, is 23 to share information that the community needs to hear 24 in order to provide us back as the Crown with helpful 25 information about impacts on Aboriginal rights. 4993 1 MS. AVERY KINEW: Is there a separate 2 consultation with NCN, with Nisichawayasihk people 3 regarding their Section 35 rights even though they 4 are co-proponents? 5 MS. LEONOFF: Yes, they are also being 6 consulted after under Section 35, yes, even though 7 they are a co-proponent. 8 MS. AVERY KINEW: I share the 9 philosophical problem that the Chair has about 10 collective rights the way they are being explained 11 here. I wonder why the government would decide to 12 meet individually with First Nations when they share 13 Treaty 5 and a couple of other -- well, the ones 14 closest to the project are all in Treaty 5. They 15 have collective rights and the individuals have the 16 collective rights shared amongst with other 17 individuals, not communities? 18 MS. LEONOFF: Well, the rights are 19 communal, according to the Supreme Court of Canada. 20 They are communal rights. One needs to look and find 21 who are those communal rights. It's not, I repeat, 22 it's not a simple task to do. 23 The decision has been made to deal with 24 individual Treaty 5 bands because they may have 25 different impacts in their communities, they might 4994 1 want to tell us different things. It's a way to 2 become an educated government. 3 MS. AVERY KINEW: So it's part of a 4 process, it's still open to people whether they might 5 want to meet on a wider basis than just their own 6 community? 7 MS. LEONOFF: I am not quite sure I 8 understand your question. 9 MS. AVERY KINEW: Well, as a Treaty 5 10 collective or as a Metis collective or as people who 11 share collective rights, as individuals who have 12 collective rights? 13 MS. LEONOFF: The desire of the 14 government is to understand the impact on the 15 collectivity. And it will conduct a legitimate and 16 fair process and we'll hear from those people who can 17 provide information on that. It's not a closed 18 process. We're constantly trying to better our 19 knowledge and better our systems. 20 MS. AVERY KINEW: Okay. Thank you very 21 much. 22 THE CHAIRMAN: Mr. Abra. 23 MR. ABRA: Ms. Leonoff, since I'm the one 24 that does have to give the Commission the legal 25 advice that you referred to, I just want to make sure 4995 1 that I have clear in my mind what I believe I 2 understand your position to be. 3 The Commission, as you are aware, does 4 have the responsibility, under its Terms of 5 Reference, to determine what cultural impact there 6 may be upon the communities in the north by the 7 Wuskwatim Project. 8 MS. LEONOFF: Yes. 9 MR. ABRA: We're ad idem on that? 10 MS. LEONOFF: Yes. 11 MR. ABRA: And for the purpose of 12 determining that, and Hydro has given significant 13 evidence to date of the consultations that indeed 14 have taken place in that regard. 15 Now those consultations, in your 16 position, are distinct from Section 35 consultations; 17 am I correct? 18 MS. LEONOFF: Absolutely. 19 MR. ABRA: And in essence, there's two 20 sets of consultations, one of which the Commission 21 has concern about, that being consultation with the 22 communities affected and what the cultural impact 23 might be. But the Commission does not have the 24 authority to deal with Section 35 consultation and 25 the adequacy of that consultation? 4996 1 MS. LEONOFF: That's my legal position. 2 MR. ABRA: That's your position? 3 MS. LEONOFF: Yes. And the legal 4 position that I have advanced to my client has been 5 accepted by my client. 6 MR. ABRA: So there have been communities 7 consulted, and we've heard significant evidence in 8 that regard. And no matter what the cultural make-up 9 or that the heritage may be of the members of that 10 community is not our concern. What our concern is is 11 the nature of the consultation that has taken place. 12 I shouldn't say it's not our concern. It's our 13 concern from a cultural and historical background and 14 what impact it may have upon them. But it's not our 15 concern whether it's adequate within the meaning of 16 Section 35 of the Constitution? 17 MS. LEONOFF: That's right. Your mandate 18 is broadly to look at cultural, as I understand your 19 mandate having read your Terms of Reference. 20 MR. ABRA: Yes. 21 MS. LEONOFF: It's to broadly look at 22 culture, any culture. And of course, any culture 23 includes Aboriginal culture. The Province of 24 Manitoba has a constitutional obligation to look 25 specifically at Aboriginal culture. 4997 1 MR. ABRA: Okay. Is it also your 2 position, and I believe you've said this but I just 3 want to make sure, is it also your position that the 4 Commission does not have any authority to determine 5 whether or not the Manitoba Metis Federation speaks 6 on behalf of the Metis as far as the consultations 7 under Section 35 are concerned? 8 MS. LEONOFF: It would be my legal 9 position that that is not within the mandate of this 10 Commission. The MMF is a funded participant in this 11 hearing to provide advice about the impact on Metis 12 culture on a broad base across the province. But no, 13 it is not within your mandate to determine whether 14 the Manitoba Government has correctly or is properly 15 dealing with Section 35 consultation. 16 MR. ABRA: Having read the Terms of 17 Reference, what is your opinion as to whether or not 18 the Commission has the authority to make a 19 determination as to whether the Manitoba Metis 20 Federation speaks on behalf of the Metis people as 21 far as the impact on the culture of Metis are 22 concerned, as far as the Terms of Reference of 23 Wuskwatim are concerned? 24 MS. LEONOFF: It is only under your terms 25 of reference to determine the impact on culture, not 4998 1 who speaks in reference to culture but to determine 2 impact on culture. 3 The MMF is an important group to speak on 4 impact on Metis culture but there may be other groups 5 that wish to come forward and speak about Metis 6 culture, I don't know. 7 Your Terms of Reference is impact on 8 culture and you can hear from whoever you have given 9 status to. You've given status to a number of people 10 to speak about that. 11 MR. ABRA: And just for the record, I 12 think you've given this evidence, but I gather you 13 don't have any personal knowledge as to where the 14 consultations presently stand, when they may be 15 completed and so on as far as Section 35 is 16 concerned? 17 MS. LEONOFF: No. I don't have personal 18 knowledge. On getting that information, it would 19 take a matter of minutes to get it, but they are in 20 the process. They are moving along and they will be 21 several, several, several months until they are done. 22 They are not even close to being done. 23 MR. ABRA: That's fine. Thank you, Mr. 24 Chair. Thank you, Ms. Leonoff. 25 THE CHAIRMAN: Other questions? If you 4999 1 have questions, you have to come forward. 2 MR. ABRA: That information is available? 3 We can get it from the government? 4 MS. LEONOFF: We can get that to you. As 5 soon as we take a break, I can get that to you. 6 THE CHAIRMAN: Well, perhaps as we are 7 getting ready to questions from the audience, maybe 8 we should take that break. 9 MS. LEONOFF: Sure. 10 THE CHAIRMAN: A 15 minute break. 11 MS. LEONOFF: You want to know 12 approximately where the consultation is and how many 13 months until a time frame for completion? 14 THE CHAIRMAN: That's correct, and the 15 communities. We'll take a 15 minute break. 16 17 (PROCEEDINGS RECESSED AT 11:18 A.M. and 18 RECONVENED AT 11:36 A.M.) 19 20 THE CHAIRMAN: Just before we begin, I 21 wish to remind any and all who come forth are to ask 22 questions pertinent to the issue at hand and not to 23 make presentations. Thank you. 24 Would you please identify yourself and 25 then proceed with your questions. 5000 1 MS. TEILLET: Good morning, Mr. Chair, my 2 name is Jean Teillet. I am legal counsel for the 3 Manitoba Metis Federation. With me I have Darryl 4 Montgomery. He is the Vice-President of the Thompson 5 region for the Manitoba Metis Federation. Further on 6 my right, I have Al Benoit. He is a senior policy 7 advisor to the Manitoba Metis Federation. And on my 8 left, I have Dan Benoit who is with the Natural 9 Resources Advisor to the Manitoba Metis Federation. 10 Again, my name is Jean Teillet. 11 Good morning, Ms. Leonoff. I just wanted 12 to start by clarifying a few of the points that you 13 had made in your presentation and in response to some 14 of the questions from the Commission and from 15 Commission counsel. I wanted to start first with 16 your initial discussion about the uncertainty that we 17 all live in with respect to clearly defining 18 Aboriginal rights in Manitoba. And I don't wish to 19 argue with that point. I think probably everybody 20 understands that there's no paint-by-number kit that 21 deals with it. 22 My question to you, though, is when you 23 are talking about those rights, I understood your 24 comments when you were talking about the effects of 25 Section 31 of the Manitoba Act and the Dominion Lands 5001 1 Act, my understanding is you're referring to the land 2 grants and the script grants that came out of those 3 Acts; is that correct? 4 MS. LEONOFF: That's correct. 5 MS. TEILLET: And to your understanding, 6 there are statements in both those Acts that say 7 towards the extinguishment of the title preferred by 8 the half-breeds. I think that's the exact quote but 9 something to that effect? 10 MS. LEONOFF: Towards the extinguishment 11 of Indian title. 12 MS. TEILLET: Yes. So my question to you 13 is, is it your understanding that Aboriginal title 14 and Aboriginal rights are separate and distinct 15 things? 16 MS. LEONOFF: They are today. Whether 17 they were in 1870, we don't know. So again, these 18 are legal points. And my only point being that it's 19 an uncertain situation whether we have had 20 extinguishment in the Province of Manitoba. That's 21 my only point. 22 MS. TEILLET: With respect to title? 23 MS. LEONOFF: With respect to Section 35. 24 We don't know. That's my only point. 25 MS. TEILLET: You are aware of the Adams 5002 1 case from the Supreme Court of Canada saying that 2 people, even if they've had title extinguished, may 3 still have harvesting rights? 4 MS. LEONOFF: Yeah. I'm not prepared to 5 argue law in this forum. I mean I understand there 6 are issues. All I'm saying is in the Province of 7 Manitoba, we don't know the effect of extinguishment 8 yet. There may be none, there may be some, there may 9 be a little bit, there may be a lot, we don't know. 10 MS. TEILLET: Whether we're arguing it or 11 not, what you're saying, am I understanding you, is 12 that whether or not title was extinguished or the 13 effect of those Acts on title, which we don't know, 14 it may be that there are existing Metis harvesting 15 rights in this province. 16 MS. LEONOFF: There may in fact be. 17 MS. TEILLET: And you are aware that in 18 Saskatchewan at the Queen's Bench level, there is a 19 decision that distinctly says that script did not 20 extinguish the harvesting rights? Are you aware of 21 the Morin and Daigneault decision? 22 MS. LEONOFF: I am very much aware and I 23 am not prepared to argue law. 24 MS. TEILLET: I'm just asking if you are 25 aware of the fact that a court in Saskatchewan, where 5003 1 the Dominion Lands Act would apply and script would 2 apply, has found that there are existing harvesting 3 rights in Northern Saskatchewan. 4 MS. LEONOFF: I'm aware of that. 5 MS. TEILLET: Now, with respect to your 6 previous discussion about policy not being law, I 7 took Mr. Mayer's point, I also wondered if you were 8 aware that the Supreme Court of Canada decided that 9 when the Canadian Environmental Assessment Act, prior 10 to the Act I should say, the CEAA guidelines were 11 brought before the Supreme Court of Canada, there was 12 a decision that those had the force of law? Were you 13 aware of that? 14 MS. LEONOFF: I am aware that some 15 guidelines in certain situations. All I was asked 16 was about a particular provision in the AJIC and I 17 indicated that it does not have the rule of law. I'm 18 not going to talk about guidelines in some esoteric. 19 I don't know what policies or guidelines we are 20 referring to. The position of the Government of 21 Manitoba in respect to Section 4.1 of the AJIC is 22 that it does not have the force of law. It is a 23 guideline to assist in the Province of Manitoba 24 making decisions. 25 MS. TEILLET: I agree that was one of the 5004 1 questions that was asked of you. I thought there was 2 another question. I may be wrong about this, but I 3 thought there was another question asking whether the 4 policy that the government has created here, your 5 consultation policy, will influence the Court when -- 6 now you've said several times that -- 7 MS. LEONOFF: I can't answer it. I have 8 no idea what will influence the Court. 9 MS. TEILLET: Well, you've read the 10 Powley decision I'm sure. 11 MS. LEONOFF: Yeah. You know, I'm not 12 going to deal with esoteric examples. If you have a 13 particular policy such as 4.1 that you want me to 14 comment about, I may be able to do so. But I mean 15 I've read lots of decisions and some of them look at 16 case law to guide them, some look at other issues. I 17 can't argue in some esoteric vacuum. 18 MS. TEILLET: With respect, Mr. Chair, I 19 don't think that the questions we are asking are in 20 an esoteric vacuum. I'm trying to ask you a specific 21 question. 22 MS. LEONOFF: Well, which policy do you 23 want me to comment on? 24 MS. TEILLET: I'm asking you and I 25 thought the question from, I think it was from Mr. 5005 1 Mayer but it might have been from Mr. Sargeant, I'm 2 trying to ask whether the policy of the Government of 3 Manitoba with respect to your consultation policy 4 that has been developed and is being acted on in this 5 specific situation, when we go to Court here, are you 6 saying -- I understood you to say that that was not 7 going to be at issue and that it wouldn't be -- it 8 wouldn't be formative in a decision. 9 So I am asking you whether the policy 10 that you spoke to, I understand the consultation 11 policy that's developed by the government, and that I 12 believe the question from the Panel was, and I'd like 13 to know too, is it your opinion that that policy is 14 guiding this Panel and is guiding the actions of the 15 government and would be at issue in determining 16 whether consultation was sufficient? 17 MS. LEONOFF: Perhaps the concern is over 18 policy, maybe that word. The Province of Manitoba 19 has put together a procedure that it is following in 20 respect of the Wuskwatim consultation process. If we 21 end up in court, that procedure will be the essence 22 of what the dispute is. Is this procedure sufficient 23 to comply with Section 35? 24 MS. TEILLET: Okay. I have here, it's 25 called "A Discussion Paper." And I'm sure you've 5006 1 seen it before. It's called "Towards better 2 relations with First Nations Manitoba Conservation 3 Consultation Policy." It's got a date of November 4 2002 on the bottom. Are you familiar with this 5 document? 6 MS. LEONOFF: I wrote it. 7 MS. TEILLET: I was going to ask you if 8 you had a part in it, but thank you. Now -- 9 MS. LEONOFF: It's not been accepted by 10 the Province of Manitoba. 11 MS. TEILLET: It's draft. Is it in draft 12 form? 13 MS. LEONOFF: It's never been adopted by 14 our Cabinet. 15 MS. TEILLET: It hasn't been accepted. 16 It's been widely distributed throughout government? 17 MS. LEONOFF: No. In fact, it's not been 18 widely distributed at all. It's been narrowly 19 distributed within government. It was not to be 20 released publicly because it has not been accepted by 21 the Province of Manitoba. It has not gone out for 22 discussion with First Nations yet because that first 23 step is to be accepted by Cabinet before it goes out 24 to First Nations for discussion. And that has not 25 occurred. 5007 1 I see that lots of people have it. I 2 don't know how it has been done. But no, it is not 3 government policy, it has not been accepted by the 4 government, it has not been released by the 5 government for discussion by First Nations. It is a 6 totally internal document at this point in time, or 7 it was intended to be a totally internal document I 8 guess I should say. 9 MS. TEILLET: But you wrote it and the 10 documents that we were provided through this process, 11 the Consultation Support Guidelines and Protocol 12 Guidelines, you wrote those as well? 13 MS. LEONOFF: No. 14 MS. TEILLET: No. Okay. You have read 15 both of them though? 16 MS. LEONOFF: Um-hum, yes. 17 MS. TEILLET: And there are a lot of 18 commonalities, it's very similar policy. Do you 19 agree with that? That the consultation process that 20 is Wuskwatim specific is in general forms a lot like 21 this Manitoba Conservation Consultation Policy? 22 MS. LEONOFF: The Wuskwatim protocol 23 guidelines were developed by the group that is 24 directing the Wuskwatim consultation. Some of the 25 language is very similar to the policy, the general 5008 1 policy that has not been accepted by the Province of 2 Manitoba. 3 MS. TEILLET: Okay. 4 MS. LEONOFF: Some of the language, not 5 all of it. 6 MS. TEILLET: With respect to the basic 7 ideas of consultation, I think you were pretty clear 8 that it's a constitutional obligation and I think you 9 were pretty clear that Aboriginal rights can be 10 infringed and not absolute with a compelling reason. 11 But there's a minimal impairment concept that applies 12 to that. 13 And would you agree with me that the 14 Supreme Court has said that consultation must be in 15 good faith with the intention of substantially 16 addressing the concerns of Aboriginal peoples whose 17 lands or other rights are at issue? 18 MS. LEONOFF: I would agree with that. 19 MS. TEILLET: And can you just tell me 20 what you think "substantially addressing the concerns 21 of Aboriginal peoples" basically means? 22 MS. LEONOFF: Well, I'm not going to 23 answer that in detail. What we are going to deal 24 with in Wuskwatim is that a presentation will be made 25 to the Crown, in essence to the Cabinet, by the group 5009 1 doing the consultation. They will give the Crown, 2 meaning the Cabinet, a list of what they have learned 3 during the consultation and it will be up to that 4 Cabinet. I'm assuming they might ask for legal 5 advice, I don't know, they might, to come up with how 6 they are going to address any impacts on Treaty and 7 Aboriginal rights. That will be a Crown decision. 8 MS. TEILLET: Would you say at a basic 9 that substantially addressing concerns would mean 10 that the government has to inform itself about what 11 the concerns of the people are? 12 MS. LEONOFF: That's exactly what we are 13 trying to do. 14 MS. TEILLET: I'm not talking about what 15 you're trying to do, I'm trying to get at a generic 16 understanding of what the obligation is. 17 MS. LEONOFF: I think that I said in my 18 presentation that what we understand consultation to 19 be is an exchange of information so that the 20 Government, the Crown, can learn what the impact of 21 its proposed project would be on those Aboriginal 22 rights. That's exactly what we want to find out in 23 this process. 24 MS. TEILLET: And to do whatever you have 25 to do in order to find out what those impacts are. 5010 1 So if that means commissioning reports or talking to 2 people or whatever it is, you have to get the 3 information? 4 MS. LEONOFF: You have to make reasonable 5 efforts to get the information. I would agree with 6 that, yes. 7 MS. TEILLET: So barring an Aboriginal 8 people saying no, we're not going to talk to you, 9 which would make it impossible, but is there anything 10 that you can think of that would be a reason or sort 11 of an excuse for government not to, you said, make 12 reasonable efforts? 13 MS. LEONOFF: I can't deal with 14 hypotheticals. Government has to try to inform 15 itself, as best it can, about impacts on Aboriginal 16 rights. 17 MS. TEILLET: So I see in this 18 consultation policy, which I understand has not been 19 accepted, that there is a discussion on who to 20 consult with and -- 21 MS. LEONOFF: I'm not going to comment on 22 that document. It is an internal Province of 23 Manitoba document. 24 MS. TEILLET: All right. If you don't 25 want to comment on that, can we talk about process 5011 1 for -- will you comment on process? 2 MS. LEONOFF: I'll comment on the 3 Wuskwatim process to the extent that I know it. 4 MS. TEILLET: What would you call a 5 public process? 6 MS. LEONOFF: I don't know. I'm not 7 going to -- it's not for me. I give legal advice to 8 my client. I really can't comment on that. 9 MS. TEILLET: Well, I think that you -- 10 would you call it adequate consultation or would you 11 call it consultation with a First Nation? If you 12 called a meeting in Thompson and put up some posters 13 and they came, would that be consultation with the 14 First Nation? 15 MS. LEONOFF: I am not prepared to 16 discuss law with you. 17 THE CHAIRMAN: I will interrupt here 18 because Ms. Leonoff stated that she was not part of 19 developing the consultation process and making 20 decisions in regards to where or who was going to be 21 consulted. 22 MS. TEILLET: My understanding, Mr. 23 Chair, is that Ms. Leonoff is here to speak to the 24 issue of consultation which is a very important idea 25 for all of us. I used Thompson as an example. I 5012 1 don't mean to derail the conversation by getting 2 absorbed in that example. I'm trying to find out 3 whether a public consultation contains within it 4 sufficiency to deal with consultation for Aboriginal 5 groups. And I think that's a fair and important 6 question that has to come before this Panel. 7 THE CHAIRMAN: Mr. Sargeant. 8 MR. SARGEANT: Ms. Teillet, I think what 9 you are getting at is beyond the scope of this 10 Commission. This Commission is here to consider the 11 Environmental Impact Statements. And we're not here 12 to consider the issues of how the government is 13 conducting the Section 35 consultations. And Ms. 14 Leonoff I heard made that fairly clear earlier this 15 morning. 16 Now, you are questioning her on the 17 issues of the Section 35 consultation process which 18 is beyond our mandate. 19 MS. TEILLET: In Ms. Leonoff's opinion. 20 THE CHAIRMAN: Mr. Abra. 21 MR. ABRA: There is nothing in the Terms 22 of Reference for this Commission that gives it the 23 authority to deal with Section 35 of the 24 Constitution. 25 MS. TEILLET: Mr. Abra, perhaps we could 5013 1 get to the end issue though which is, as I see it, 2 this is a recommendatory board. You make 3 recommendations to the Minister. 4 THE CHAIRMAN: That's correct. 5 MS. TEILLET: And the Minister is going 6 to make the decision. 7 THE CHAIRMAN: That's right. 8 MS. TEILLET: And in the separate 9 process, as Ms. Leonoff has said, Manitoba 10 Conservation and DFO are, I gather, going to make 11 their recommendations to their responsible ministers. 12 And then those ministers will make a decision on this 13 project. Somewhere along the line, whether it comes 14 from Manitoba Conservation or the Department of 15 Fisheries and Oceans or this body, somewhere along 16 the line, the Minister has to get the information as 17 to consultation and the issues that it needs to know 18 in order to make its decision. Somewhere this has to 19 happen. 20 THE CHAIRMAN: From all of those sources. 21 MS. TEILLET: From all of those sources. 22 And what my client is telling you and has been 23 telling you for months is that they are not being 24 consulted. Now, if you're telling me Ms. Leonoff is 25 saying no, I can't question her on their consultation 5014 1 things and you're telling me I can't question you on 2 it, where are we to go then? Where is our forum to 3 discuss the adequacy of consultation on this project, 4 Mr. Chair? 5 THE CHAIRMAN: The courts. 6 MR. SARGEANT: No, no, I don't think 7 that's a fair, I don't think that's a complete 8 answer. That's certainly one route. But Ms. Leonoff 9 has said earlier that there are procedures whereby 10 anybody who considers the adequacy of the government 11 Section 35 consultations to be wanting can make those 12 concerns known. Consultation on issues relating to 13 the EIS and the JNFAAT, the Needs For and 14 Alternatives To are open for consideration by this 15 Commission. But Ms. Leonoff is not here as a witness 16 on those issues. She's here just to explain to us 17 the Section 35 process. 18 MS. TEILLET: But you're telling me that 19 I can't ask her questions about this. 20 MR. SARGEANT: No, not on the Section 35 21 process. That's not within our mandate. Our mandate 22 is the EIS and the JNFAAT. 23 MS. TEILLET: But I can't ask her 24 questions on the Section 35 process and I can't ask 25 you questions on your process? 5015 1 MR. SARGEANT: You could ask us questions 2 on our process when the Manitoba Metis Federation 3 makes their presentation to this Commission. 4 MS. TEILLET: I would like to ask, Mr. 5 Sargeant, with all due respect, if Ms. Leonoff is 6 here to make presentations on Manitoba's consultation 7 process and she's here in a public forum to answer to 8 the very thing that they are doing, why we cannot ask 9 her questions about their process? I would very much 10 like an answer to that question. You have her here 11 for that very reason. 12 THE CHAIRMAN: Well, perhaps Ms. Leonoff 13 wishes to further respond to that but I think she has 14 already. It's up to her to say whether she's 15 prepared to accept that question or not. And if she 16 says no, well, it's under the Section 35. And as Mr. 17 Sargeant has just indicated, that's not within our 18 mandate. Mr. Mayer. 19 MR. MAYER: Thank you, Mr. Chair. We 20 probably have entirely too many lawyers in this room, 21 I being one of them. 22 MS. TEILLET: You can never have. 23 MR. MAYER: But Ms. Leonoff is here very 24 clearly to outline a process largely for our 25 information on Section 35 of the Constitution Act. 5016 1 The process that's actually or the implementation of 2 the Section 35 consultations, as I understand it, are 3 within the purview of the Department of Conservation, 4 the gentlemen sitting immediately behind you, who 5 will be sitting in that seat at a future date. I 6 would suspect that the questions of process with 7 respect to those consultations are within the purview 8 of the Department of Conservation. 9 Interestingly enough, apparently the 10 Section 35 consultation report will go to the 11 Minister of Conservation as of course will our 12 report. And hopefully at that time, the Minister 13 will have the indications from both places. But 14 understand, we hold the proponent responsible for the 15 consultations that the proponent did and that is 16 within our mandate. 17 We are receiving information from Ms. 18 Leonoff today. She made it very clear in our 19 discussions or in our questions that she was here for 20 the purpose of explaining what was happening on 21 Section 35 and she also made it very clear that she 22 is not implementing but in fact Conservation is 23 implementing. 24 So I would suggest to you, respectfully, 25 that questions respecting the implementation of the 5017 1 Section 35 process would properly be addressed to the 2 people who are implementing it. And as I indicated, 3 I understand that to be the Department of 4 Conservation. 5 MS. LEONOFF: Mr. Mayer, if I could 6 clarify because there is some errors in some of your 7 comments and it might help. 8 The implementation of the consultation in 9 respect of Wuskwatim is it's a Crown, it's a Crown 10 decision. It is being implemented at the behest of 11 the Crown. And there are individuals who are helping 12 to put that process together, who come from a variety 13 of departments of government and from the Federal 14 Government. 15 The report that will be generated will go 16 to the Crown now, that means beyond the Minister of 17 Conservation. In fact, it will go to Cabinet, at 18 least the consultation report. Your report is 19 specifically commissioned by the Minister of 20 Conservation. Our report or the report that's being 21 done under Section 35 will go to the Cabinet as a 22 larger group, if you will. 23 And so the position that Manitoba is -- 24 that I have tried to advance, and I certainly 25 understand Ms. Teillet's question, is Manitoba has 5018 1 made certain decisions. It is not any individual in 2 government, it is a Cabinet decision, it is a Crown 3 decision, as to how this consultation will occur. 4 And that has been the decision of the Province of 5 Manitoba. It's not for me to say, you know, whether 6 it could be done in a way Ms. Teillet or her client 7 would prefer. This is the way it is being done. And 8 as I've said earlier, I am not prepared to dispute 9 legal matters. This is not a forum to dispute law 10 and legal factors. I don't know if that helps, but. 11 MR. MAYER: Ms. Leonoff, I have only one 12 concern. The first attachment to your written 13 submission is headed by the letterhead of Manitoba 14 Conservation Canada, Fisheries and Oceans Canada. 15 First line in the text, 16 "Manitoba Conservation and the federal 17 Department of Fisheries and Oceans 18 have initiated consultations." 19 MS. LEONOFF: Those are the groups that 20 are doing -- are sort of the lead organizations but 21 there are people who are part of our consultation 22 team that come from a variety of parts of government. 23 Justice, for example, is represented on Manitoba's 24 consultation team. A variety of governmental 25 officials. 5019 1 MR. MAYER: I trust I don't have to read 2 the beginning of the second paragraph which says, 3 "Manitoba Conservation and DFO 4 acknowledge that they have a 5 responsibility to consult in a 6 meaningful way with First Nations and 7 Aboriginal communities." 8 MS. LEONOFF: The decision is a Crown 9 decision. 10 MR. MAYER: I understand that. 11 MS. LEONOFF: And there's not going to be 12 anybody -- it is a Crown decision as to how this is 13 being done. Certainly they are the lead 14 organization, they are the lead ministry in dealing 15 with it. But no ministry does consultation. It is a 16 Crown decision. I mean obviously the Crown works 17 through individual people but it is a Crown decision. 18 MS. TEILLET: I'm going to try and ask 19 some more questions because we really need some more 20 information and I'm not trying to push you in areas 21 you can't go. We really are trying to get at 22 something that is important and I have great concern 23 by this what I consider to be a very artificial 24 distinction that's just been drawn here between we 25 can ask questions about the implementation of this 5020 1 policy of Manitoba Conservation when they come up 2 here. And then they will sit and tell us no, no, no, 3 we didn't design it, we are just implementing it. 4 And yet we can't ask Ms. Leonoff about the sort of 5 the policy generally and how it's structured and what 6 is the theory that the government is operating under 7 which is what I sort of thought we were trying to do. 8 I am not trying to put her on the spot or have a big 9 philosophical discussion here. I really am trying to 10 understand the government's policy. So that when we 11 get to Conservation, we can ask the on-the-ground 12 questions. 13 But I am greatly afraid that if you cut 14 down or shut down that line of questioning, we will 15 be left again with, as the Chair has just told us, 16 we're going to have to go to Court. And I really 17 cannot believe that anybody in this room thinks that 18 that's a good idea. So I am asking your latitude to 19 let me continue to try and understand what the 20 Crown's consultation policy means. 21 THE CHAIRMAN: With the proviso that 22 there are some questions that have been answered and 23 we have been told that and we have said what is 24 within our mandate and what is not within our 25 mandate. And Section 35 is not within our mandate. 5021 1 And Ms. Leonoff has indicated that she's 2 not willing and is not going to discuss government 3 policy here today or debate legal points. And 4 therefore having said that, you know what amount of 5 leeway that should leave you. 6 MS. TEILLET: With respect, Mr. Chair, 7 it's a bit of an artificial line to say Section 35 is 8 not within your mandate. You have to make a decision 9 that is consistent with the obligations under Section 10 35. So it's very difficult. You cannot make a 11 recommendation to the Minister and the Minister 12 cannot make a decision that is outside of his Section 13 35 responsibilities. 14 So the idea that we can't even discuss 15 Section 35 or that we have to hive it off as 16 something that this Commission is never going to talk 17 about or have any dealings with is I think perhaps 18 not helpful to us. 19 But nevertheless, I am not wanting to sit 20 and have a big debate about Section 35. I really 21 want to get at the government's consultation policy. 22 And Ms. Leonoff is here as, I understand, an expert 23 on consultation and Section 35 consultation and that 24 she's here in order for us exactly to ask those kinds 25 of questions about that. So I am going to proceed on 5022 1 that basis. 2 Now, the consultation guidelines that are 3 operating here generally or the consultation 4 obligations on Manitoba Conservation, I think your 5 papers say that both Manitoba Conservation and DFO 6 have obligations to consult primarily the originator, 7 some of the part of which arises out of statutory 8 obligations under the Department of Fisheries and 9 Oceans, and particularly under the Navigable Waters 10 Act and under the Fisheries Act; is that correct? 11 MS. LEONOFF: When we're dealing with 12 Section 35, we are not dealing with statutory 13 consultation, we are dealing with constitutional 14 consultation. The reality is that in respect of the 15 Province of Manitoba, if and when it decides to 16 issue, or if it does, a water power licence, the 17 Crown sees that as an allocation of a Crown resource. 18 And when there is going to be a Crown decision that 19 may impact on Treaty and Aboriginal rights that 20 enters into consultation, that's why the Province of 21 Manitoba is entering into consultation in respect of 22 Section 35 in this case. 23 MS. TEILLET: This is further to Mr. 24 Mayer's comment. These articles are published under 25 Manitoba Conservation and DFO? 5023 1 MS. LEONOFF: Yes, it's a joint. 2 Consultation Canada also has determined that it has 3 consultation obligations. I am not familiar with, I 4 mean except very very generally, that Canada has 5 determined that there may be an impact if this 6 project goes ahead on navigable waters and on fish 7 habitat. Therefore, Canada has also determined that 8 it will engage in Section 35 consultation in order to 9 make the process work more efficiently and better. 10 We've decided to work with Canada on a joint 11 consultation process. Canada has representatives on 12 what we call the Steering Committee, the Committee 13 that reports back to both governments in respect of 14 coming up with a process by which the consultation 15 would be developed. 16 MS. TEILLET: Is DFO's participation in 17 this consultation considered its Section 35 18 consultation for the purposes of the CEAA, its CEAA 19 requirements? 20 MS. LEONOFF: I have no idea. 21 MS. TEILLET: You don't know that? 22 MS. LEONOFF: I have no idea. 23 MS. TEILLET: And to your knowledge, has 24 there been any discussion that you are aware of about 25 consultation requirements if this energy is exported 5024 1 under the National Energy Board? Do you know 2 anything about that? 3 MS. LEONOFF: That's Canada's issues. 4 MS. TEILLET: That's Canada's. And that 5 hasn't been part of this joint consultation 6 discussion? 7 MS. LEONOFF: No. 8 MS. TEILLET: In any way? 9 MS. LEONOFF: No. Canada independently 10 determined that it had obligations under Section 35. 11 Manitoba independently determined that it had 12 obligations under Section 35 just as a matter of 13 efficiency and doing something once and not twice and 14 it was determined that the process would operate 15 together but Canada brings its own people to the 16 process and Manitoba brings its own people to the 17 process. 18 Each group will write its own report 19 independently. Each group will send its report to 20 its appropriate ministerial process. And I don't 21 know what Canada's is. I know what ours is. Ours 22 will go to the Cabinet. 23 MS. TEILLET: Can I ask whether -- you've 24 made quite a point of saying these are all separate 25 processes. Will the recommendations report that 5025 1 arises out of your Section 35, or not yours 2 personally, but Manitoba's Section 35 consultations, 3 will that be a public document? 4 MS. LEONOFF: I don't know that any 5 discussion has occurred. It will certainly go back 6 to the communities to make sure that what has been 7 heard, that enough information has been heard. If 8 anything has been missed, we need to know about that 9 so that it's as complete a document as possible. I 10 am not able to speak to the final last copy. 11 Certainly, there will be an opportunity 12 to share the draft or the first time to make sure 13 we've understood that those who are collecting the 14 information have understood what the communities have 15 been saying and have accurately recorded it so that 16 the various ministers who have to make the decision 17 will have the best possible information. 18 I don't think there's been any 19 discussion. I would have been part of that 20 discussion so there has not yet been any discussion. 21 And we would take direction obviously from the 22 ministers as to whether it would be made public. 23 MS. TEILLET: I wanted to go back to your 24 discussions in your paper where you say that there -- 25 again, I use "you" loosely, in the royal you -- 5026 1 that -- 2 MS. LEONOFF: I wish they paid me in the 3 royal you. 4 MS. TEILLET: It says in this paper that 5 Manitoba Conservation and DFO acknowledge that they 6 have a responsibility to consult in a meaningful way 7 with First Nations and Aboriginal communities. And 8 Aboriginal community, is there a definition of 9 Aboriginal community? 10 MS. LEONOFF: No. 11 MS. TEILLET: Is it a loose term? 12 MS. LEONOFF: It's a very loose term and 13 I think I tried to make that point during my original 14 submission. We wish that we were omnipotent and 15 could determine exactly how the Supreme Court is 16 going to work this all out in the next 15 or 25 17 years, but we aren't. We're doing our best to put 18 together, I use the word "legitimate" in my 19 presentation and that's the word I'll stick with, a 20 legitimate consultation process to get as much 21 information as we can about impact on Treaty and 22 Aboriginal rights. 23 And that's why we're using -- each 24 community is entitled to come up with the type of 25 process it wants to use within its own community. 5027 1 There is not one process. It can have public 2 meetings, it can invite other groups such as your 3 clients, the MMF, to any of these meetings to get the 4 best possible information in that process. So we're 5 doing the best we can. Some may not say it's exactly 6 the way they would like it but we consider it to be a 7 legitimate process. 8 MS. TEILLET: When you say Aboriginal 9 community, do you mean sort of -- or is your contact 10 point for Aboriginal community the mayor and council? 11 Is that the general idea? 12 MS. LEONOFF: Well, again, now you're 13 getting into specifics and I'm not entirely clear. I 14 know that letters went out. I know that in certain 15 situations, posters have been placed in post offices. 16 I mean I think there's an attempt to reach the 17 individuals. I know these are not individual rights 18 but ultimately communal rights have to be spoken 19 through through the mouth of an individual. Somebody 20 has to actually say the words out loud. 21 And so the idea is to attempt to get that 22 information. And that's how it's being attempted to 23 be done. 24 MS. TEILLET: And so these Northern 25 Affairs communities which end up being -- and you 5028 1 talked quite a bit about the physicality being the 2 way you decided to go? 3 MS. LEONOFF: Yeah. 4 MS. TEILLET: And the legitimate choice I 5 think you said? 6 MS. LEONOFF: Yeah. 7 MS. TEILLET: So you decided to go, or 8 not again you meaning, actually the government 9 decided to go by choosing physically based 10 communities. And I think someone asked you already 11 about the fact that obviously a physical community 12 isn't necessarily the same thing as sort of a 13 cultural community. They can be different things. 14 And I think you agreed with that. So now -- 15 MS. LEONOFF: Well, what I said was 16 others may have different views. Manitoba has made a 17 choice to go with the physical environs of the 18 project. And if we could just divert for a moment, 19 I'll give you the information that you asked for 20 before the break which was the actual communities 21 that are being contacted or were contacted. Some 22 chose not to be involved. Some indicated they didn't 23 wish to be involved. 24 So Tataskweyak Cree Nation. These are 25 First Nations communities. War Lake First Nation, 5029 1 York Factory First Nation, NCN, Nelson House, 2 Opaskwayak Cree Nation, Pimicikamak Cree Nation. And 3 there was also Fox Lake community was contacted but 4 indicated it didn't want to engage in consultation. 5 Norway House Cree Nation was contacted, indicated it 6 did not want to engage in consultation. I think 7 that's correct. Opaskwayak, did I say Opaskwayak? 8 MS. TEILLET: Yes. 9 MS. LEONOFF: Other communities were 10 Wabowden, Thicket Portage, Pikwitonei, Ilford, Cross 11 Lake indicated it did not wish to be consulted, 12 Norway House indicated it did not wish to be 13 consulted, Cormorant, South Indian Lake and Herb Lake 14 Landing. Those are the ones I am aware of. I think 15 that's a pretty accurate list. 16 You also asked some questions about 17 timing. Phase 2 is continuing. And there are hopes 18 to deal with it before the end of summer, to try and 19 get into each community as many times as the 20 community feels is necessary to respond to their 21 issues. So to do that through April, May and June, 22 to continue that. But it may take longer if 23 communities aren't ready or want some more time. 24 And then of course, there needs to be 25 phase 3 which is to go back and to make sure that the 5030 1 province has understood what the communities have 2 said. And so nothing is carved in stone. There are 3 certainly opportunities if -- 4 MS. TEILLET: Can I ask, I think you said 5 earlier that the consultation meant that the 6 government had to inform itself or get the 7 information about the traditional use practices, et 8 cetera, and the effects. Now, how is the community 9 to access that information in order to give it back 10 to the government? Has anybody given a lot of 11 thought to that? 12 MS. LEONOFF: Well, that's up to 13 communities. We certainly listen and see if they 14 need some assistance in accessing that. Some want to 15 hold public meetings, some want to do it different 16 ways. That's up to communities. 17 MS. TEILLET: Is there funding available 18 for them if they want to do that? 19 MS. LEONOFF: There is some funding. One 20 of the concerns and I think one of the concerns of 21 the government is that if funding has come in another 22 source, that it not simply be repeated. But 23 certainly, there is funding to hold public meetings, 24 to make sure that elders are properly compensated for 25 attending meetings. There is certainly funding for 5031 1 that kind of process. 2 MS. TEILLET: And if I guess if you go -- 3 a lot of these communities you talked about that you 4 listed here are First Nations communities. 5 MS. LEONOFF: Yes. 6 MS. TEILLET: So when you said they were 7 contacted, they would be contacted through the Band 8 council likely? 9 MS. LEONOFF: Yes, I believe that was the 10 point of contact. 11 MS. TEILLET: Okay. 12 MS. LEONOFF: Chief and Council. 13 MS. TEILLET: And it would be up to the 14 Band council to disseminate the information to the 15 community after that. And you said when you go into 16 sort of other communities, so I'm trying to figure 17 out what community we can talk about. Cormorant, is 18 that a -- I'm just guessing. But say we talked about 19 Cormorant, so you said that would go to put up in the 20 post office or wherever you could find places? 21 MS. LEONOFF: Yeah. 22 MS. TEILLET: And you might contact mayor 23 and council or what? 24 MS. LEONOFF: Yes, I think there 25 definitely was contact to mayor and council. And as 5032 1 well, trying to ensure that there is some kind of 2 attempt to find out what the community is saying. So 3 you know, hoping as well that mayor and council has 4 some ideas. I mean they know their communities and 5 we would hope that they would have some ideas. 6 MS. TEILLET: And was any contact made 7 with the Manitoba Metis Federation locals, with the 8 locals in those areas? 9 MS. LEONOFF: I don't know if that 10 occurred or didn't occur. I'm sorry, I don't know 11 the answer to that. 12 MS. TEILLET: Thank you. Now if -- 13 MS. LEONOFF: I presume that they all 14 know about it at this point in time. I mean it's 15 been well, well disseminated information that the 16 government is engaged in a consultation process. And 17 if there is groups that have good information to tell 18 us about what the impact will be on their community, 19 government is not going to not listen to it, it wants 20 to hear about it. 21 MS. TEILLET: So you're saying the 22 government would engage in consultations with the 23 MMF? 24 MS. LEONOFF: No. What I'm saying is the 25 government will engage in consultation with groups 5033 1 within communities that can provide information about 2 impacts on Treaty and Aboriginal rights within those 3 communities. We're looking to do this on a community 4 basis. Any community that feels that the MMF is the 5 best group to explain that about its community is 6 welcome to bring that -- to allow that to happen. 7 MS. TEILLET: Okay. Can we -- 8 MS. LEONOFF: A province-wide group or 9 that generally has a mandate throughout the province, 10 we are not dealing with, for example, the Association 11 of Manitoba Chiefs or any other province-wide 12 organization because we're looking -- we've made a 13 decision. The Government of Manitoba has made a 14 decision to deal on a local level. That has been the 15 decision. 16 MS. TEILLET: The question was about MMF 17 locals, though. So the local in one of those 18 communities which is not the province-wide body but 19 the local, the people who are actually living and 20 harvesting and everything in that community. And I'm 21 just trying to understand. So what you are saying is 22 if the mayor and council decided that the MMF had a 23 perspective that should be heard, then that would 24 be -- the Manitoba Government would be prepared to 25 meet with them? 5034 1 MS. LEONOFF: If that would be the 2 decision about that community, that that's the way it 3 wishes to be consulted, yes. 4 MS. TEILLET: But you wouldn't just 5 consult with the MMF? Like I'm just trying to think 6 about possible circumstance of where, say, a 7 community council might be formed by off-reserve 8 Indians who are members of the local community and 9 they are the entire mayor and council. So what might 10 be their interest, and maybe the majority of the 11 community are members of that, so where would the 12 Metis community have an opportunity even to put 13 forward their views under those circumstances? 14 MS. LEONOFF: Again, it's very difficult 15 for me to deal with hypotheticals and I just don't 16 know the communities, you know, directly. 17 The point being that the Manitoba 18 Government is looking to find out, the process is to 19 find out the impact, the possible impact of this 20 project on local Aboriginal communities, on 21 Aboriginal communities under Section 35. The process 22 it has chosen as a legitimate process is to go to the 23 physical communities. 24 If there are groups within that community 25 who feel that they have a good way of communicating 5035 1 to the Province of Manitoba what the impact on that 2 community, that Aboriginal community will be, by all 3 means, Manitoba is interested and I presume Canada is 4 interested in hearing that. 5 We're not into labels as to which group 6 or person or whatever, who has the ability to provide 7 Manitoba with information necessary to understand 8 impact on Treaty and Aboriginal rights. 9 MS. TEILLET: I understood from the 10 earlier part of your comment that you were saying you 11 didn't know the facts as to whether locals had been 12 contacted directly. And I wondered if you could 13 undertake to provide that information as you 14 undertook to provide the actual communities that were 15 contacted? Could you undertake to provide the 16 information as to whether local MMF, not the MMF 17 provincially, but the locals in those, in the 18 affected communities were contacted in any way? 19 MS. LEONOFF: Well, I'll take that under 20 advisement from the Chair if that's within the 21 mandate as to how we are doing our Section 35. As 22 I've indicated to you, Manitoba has picked a process 23 and I've tried to explain it in general terms. If 24 the Chair feels that that's appropriate, I can 25 undertake to find it. If the Chair feels it's 5036 1 outside of the mandate, then I won't undertake to do 2 it. 3 THE CHAIRMAN: I think, Ms. Leonoff, the 4 question that is being asked of you is we have 5 indicated this is not within our mandate and the 6 question that was asked was a question that is 7 entirely within your mandate. It's up to you to 8 indicate whether you wish or not wish. So the 9 question has been asked. Maybe the question 10 shouldn't have been asked in the first place. 11 MS. TEILLET: So, Mr. Chair, you're 12 saying that it's within your mandate to deal with the 13 First Nations communities and you asked for Ms. 14 Leonoff to provide direct information to you about 15 which of those communities were -- 16 THE CHAIRMAN: No, no. I didn't say 17 that. I said that -- and I think she answered. 18 MS. TEILLET: She gave you the answers to 19 that, which of those communities. And I asked which 20 of the Metis locals were, and you're saying you don't 21 have to even get that information in any way at all? 22 You don't want that information? 23 THE CHAIRMAN: Well, what I heard Ms. 24 Leonoff say is that she was not, per se, the person 25 organizing the consultation meetings in the 5037 1 community. So you may be able to obtain that 2 information in writing to the -- 3 MS. TEILLET: She gave you the list of 4 the communities, the physical communities that they 5 have contacted. And now you're telling me that you 6 don't want or you are saying you are drawing a line 7 and saying you don't want the information as to 8 whether local Metis communities, local Metis, 9 Manitoba Metis locals were contacted. 10 THE CHAIRMAN: Ms. Teillet, don't put 11 words in my mouth because that's not what I have 12 said. I said the entire issue that you have raised 13 is not within our mandate in the first place. So we 14 are obviously not going to be providing that 15 information to you. 16 MS. TEILLET: You have a mandate to 17 understand which actual communities were contacted? 18 THE CHAIRMAN: We're talking about the 19 consultation under Section 35. 20 MS. TEILLET: Right, we are. That's 21 exactly what we're talking about. 22 THE CHAIRMAN: That entire issue is not 23 within our mandate. 24 MS. TEILLET: That entire issue is not 25 within your mandate. 5038 1 THE CHAIRMAN: That's correct. 2 MS. TEILLET: So you asked about the 3 First Nation communities that were contacted but you 4 don't want to know about the -- or the communities 5 that were contacted. I gather there's everyone in 6 here, First Nation and what you might call 7 non-Aboriginal communities. Those terms are very 8 loose. 9 And I'm asking directly, are you -- I'd 10 asked if Ms. Leonoff could provide you with the 11 information as to whether those communities had been 12 contacted. She was able to provide you with -- or 13 whether those MMF locals had been contacted. She was 14 able to provide you with the actual communities 15 whether they had been contacted. And I didn't 16 understand her to be saying she couldn't provide us 17 with the information, it was rather she would take 18 direction from the Chair as so whether she would 19 provide it or not. 20 THE CHAIRMAN: What I told Ms. Leonoff 21 was that since the issue is not within our mandate, 22 perhaps the question shouldn't have been raised. But 23 the question having been raised, it wasn't for us to 24 give the latitude or prevent the latitude from her 25 indicating that response. 5039 1 But I think Ms. Leonoff may be in a 2 position to say where she could get that information 3 if that is within your purview. 4 MS. LEONOFF: There are people that are 5 physically doing the consultation. I'm not doing it. 6 These are the communities that were contacted. I had 7 given you a list of the communities that were 8 contacted as communities. That's the knowledge that 9 I have at this point in time. 10 MS. TEILLET: We'll make -- I think my 11 client -- 12 THE CHAIRMAN: Mr. Abra. 13 MR. ABRA: Mr. Chairman, just for the 14 record, I was the one that asked Ms. Leonoff to get 15 the information for the purposes of the Section 35 16 consultation. The reason I asked her for that 17 information was to compare that to the list of the 18 communities that we have heard consultations have 19 taken place with as far as what our concern for the 20 cultural consultation is concerned. That was the 21 purpose of it. I wasn't asking her for the list for 22 the purposes of a Section 35 consultation. I wanted 23 to know what communities the government thought 24 should be consulted for Section 35 to see how that 25 compared as to who had been consulted by Hydro with 5040 1 respect to the transmission project and the 2 generation project. That was the reason I asked for 3 the answer. It didn't relate to what was going on in 4 the Section 35 consultations. I didn't intend it to 5 be taken that far. 6 THE CHAIRMAN: Thank you, Mr. Abra. 7 MS. TEILLET: Regardless of the purpose 8 of the question, the result is that this Board has, 9 by your own decision now, incomplete information. 10 MR. ABRA: With respect to our Terms of 11 Reference? 12 MS. TEILLET: With respect to the 13 Manitoba Metis Federation and the consultation, 14 whether that consultation is done as a Section 35 or 15 under the proponents consultation requirements. And 16 I must say that my client disagrees with the hard and 17 fast line that's been drawn here. 18 THE CHAIRMAN: This is not a forum where 19 you are to put your views on the record, this is a 20 forum where you are to ask questions within the 21 purview of what relates to what Ms. Leonoff has 22 presented and within the boundaries that she has 23 indicated. 24 MS. TEILLET: I've asked my question and 25 you've given your response. I'll move on. 5041 1 Those Northern Affairs communities, they 2 have limited geographic and jurisdictional authority. 3 Is that your understanding of them, under an Act, a 4 statutory provision? 5 MS. LEONOFF: Yes. 6 MS. TEILLET: And so their authority is 7 limited to the geographic jurisdiction of whatever 8 the particular town or village or site is? 9 MS. LEONOFF: Well, their authority to 10 deal with legislative matters is limited. We're not 11 dealing with their authority to deal with legislative 12 matters, we're dealing with a way to try and contact 13 individuals or communities through individuals who 14 can provide information about the impact of this 15 project on the culture of that community. 16 What their legal jurisdiction is in 17 respect of garbage disposal or snow clearing is 18 really not the reason we've contacted them. They 19 just are a physical way of getting to people. 20 MS. TEILLET: Is that because they are 21 elected that you think they are the appropriate -- 22 and despite their jurisdiction over sewage and dog 23 catching and things like that, it's because they are 24 elected by the people in that community? 25 MS. LEONOFF: No, no, because they are a 5042 1 methodology, the best methodology that the Government 2 of Manitoba could come up with in this clearly 3 unique, not unique, but new process that it needs to 4 follow. It picked a legitimate process and that's 5 the legitimate process that it picked. That this was 6 a way to physically contact individuals who would 7 have a way of knowing their own community better than 8 the Government of Manitoba knows their community. 9 MS. TEILLET: You spoke earlier about the 10 Aboriginal justice implementation recommendation 11 Section 4.1 and I think we had a discussion already 12 about that which is quite sufficient and you said 13 that it's policy and it's background. Are you aware 14 that it was -- that there was a special commitment 15 made to carry out the recommendations in the throne 16 speech on November 13, 2001? 17 MS. LEONOFF: I think the language at the 18 time that a commitment, a special commitment has been 19 made to carry out the recommendations. I am aware 20 that that was in the throne speech, yes. 21 MS. TEILLET: Thank you. Now, with 22 respect to the Section 35 constitutional obligation 23 on the Minister who is going to sit and make this 24 decision as a result of the consultation, would you 25 agree that the ultimate issue is that the Minister -- 5043 1 the consultation is the process whereby the Minister 2 will get that information so that he or she can make 3 the best decision possible? 4 MS. LEONOFF: Yes. I would agree with 5 that except for the use of the word "Minister". I 6 would use the word the Crown can make the best 7 possible decision. 8 MS. TEILLET: Fine. 9 MS. LEONOFF: Because it's not an 10 individual Minister that will make this decision, 11 this is a Crown decision. 12 MS. TEILLET: Okay. But the issue is so 13 that there's substance, there's substantive 14 information that has to get out there to the Crown in 15 order to make this decision. And there are lots of 16 different choices for processes about how to get 17 there. So the consultation obligation isn't a 18 procedural obligation, there's substantive obligation 19 to get information to the decision maker? 20 MS. LEONOFF: Absolutely. That's the 21 process that we're trying to follow to get the best 22 possible information so that a full report can be 23 written for consideration by Cabinet. 24 MS. TEILLET: And if there is -- if there 25 is insufficient information that gets up there on -- 5044 1 THE CHAIRMAN: That's hypothetical. 2 MS. TEILLET: I'm trying to ask -- I'm 3 trying to get at the government decision-making as a 4 result of the process and I don't think this is 5 hypothetical at all. I mean it's a legal opinion 6 that Ms. Leonoff is entirely, in fact more than 7 qualified to answer. And what I'm trying to get 8 at -- 9 THE CHAIRMAN: Ms. Leonoff has indicated 10 this is not going to be a legal debate and you're 11 asking a hypothetical question and the question is 12 out of order. 13 MS. TEILLET: Ms. Leonoff, are there any 14 circumstances where the government decision could be 15 found to be at risk as a result of a lack of 16 consultation? 17 MS. LEONOFF: The government recognizes 18 that consultation is its legal obligation. It has 19 put together a process that it considers legitimate 20 in an attempt to get to the Crown, meaning the 21 Ministers of the Cabinet, the best possible 22 information to make a legitimate decision about 23 whether or not to grant the necessary water power 24 licence in this case. 25 I think your question was could it ever 5045 1 not be a good consultation? Of course, there can be 2 consultations which ultimately, we know that, that do 3 not fulfil the obligations. 4 In this case, the Province of Manitoba 5 has sat down through a number of its officials. The 6 Government of Canada has sat down through a number of 7 its officials and put together a plan that it thinks 8 is a legitimate plan, a defensible plan to get the 9 information up to the appropriate decision makers. 10 MS. TEILLET: Does the final consultation 11 report that's prepared by Manitoba Conservation and 12 DFO get shared with the CEC? 13 MS. LEONOFF: No. 14 MS. TEILLET: No. It just goes straight 15 to the Minister? 16 MS. LEONOFF: No, it's clearly not within 17 the mandate of the CEC. This is a separate process. 18 The Government of Manitoba wants information. The 19 fact that it empanelled the CEC and gave it a mandate 20 to look at, among other things, culture, means that 21 it wants to collect information from a variety of 22 sources, Section 35 being one, CEC being two. 23 As I indicated in my earlier comments, it 24 may get information in a third process, whether it be 25 a letter, people were sending it letters or just you 5046 1 know some kind of, any kind of voluntary process. 2 THE CHAIRMAN: Ms. Leonoff, you have 3 answered that question already and you've used those 4 same words. It is not essential for you to repeat 5 the answers. 6 MS. LEONOFF: Thank you. 7 THE CHAIRMAN: Mr. Nepinak. 8 MR. NEPINAK: Thank you, Mr. Chairman. I 9 guess I somewhat have a difficulty with, you know, 10 with the issue of First Nations being consulted, 11 Northern Affairs communities, Metis communities. I 12 come from a Treaty area. I am surrounded by large 13 Metis communities. And you know, I always understood 14 as a consultation process, whether it be a fishing 15 issue, a Hydro issue, I think neighbouring 16 communities become aware of, you know, issues such as 17 this project very very quickly at the local level. 18 And I have a great deal of difficulty that, you know, 19 to understand that the Metis have not been consulted. 20 But yet, you know, in listening or seeing 21 the proponents, now Justice, the offer of Metis 22 participation has always been there, you know, my own 23 personal view. My question is why is the Metis 24 people? 25 And I know in travelling north a couple 5047 1 of weeks ago, there are some presence of the Metis 2 interests. You know, whether it be in union 3 organizations or some other organizations where both 4 our First Nations people or Metis people are involved 5 in the workforce. And the interest that is shown 6 that I saw in the north. 7 Well, I guess my question or, you know, 8 if I can help this Panel a bit, why you feel that you 9 are not involved? Maybe I need some explanation and 10 clarification on that. Thank you. 11 MS. LEONOFF: Well, I'm not sure if that 12 was a question put -- I don't think it was really put 13 to me but I will respond, sir, because I think one of 14 your points is really important to the way the 15 government sees this as well which is this is a 16 well-known process. 17 And form is not the issue, it's content 18 that's the issue. We're getting out into the 19 communities, into to talking to people. As you said, 20 this is well-known. Individuals will come forward. 21 Groups will come forward. People will tell what they 22 want to tell about the impact of this project on 23 Treaty and Aboriginal rights. 24 So in large part, your comment reflects 25 part of the reasoning that both governments have 5048 1 picked to work in this forum. 2 MR. NECKOWAY: Mr. Chairman. 3 THE CHAIRMAN: Yes. 4 MS. NECKOWEY: Yes. I guess in your 5 paper here, you outlined seven Northern Affairs 6 communities. And you know, is it the policy or the 7 position of the Manitoba Government that, you know, 8 these mostly are, not all are non-First Nation 9 communities such as Metis communities are 10 administered by Northern Affairs. Will you say that 11 all non-Native communities are administered by 12 Northern Affairs in this province? 13 MS. LEONOFF: I don't think I would say 14 that. I would say that this was chosen as a 15 legitimate way. And I know the Chair has said, you 16 know, I've answered it. And that's the best I can 17 do, sir, is to tell you that we put together what we 18 consider to be a legitimate way to reach the 19 communities affected by this project. How we would 20 do consultation on another issue could be entirely 21 different. It will depend on the impact, the scope 22 of the impact, its physical scope, different factors. 23 So this was considered to be a good way to get into 24 communities and find out what communities want to 25 tell us about impact. 5049 1 THE CHAIRMAN: Thank you. 2 MS. TEILLET: We have no further 3 questions, Mr. Chair. 4 THE CHAIRMAN: Thank you. Mr. Abra. 5 MR. ABRA: Thank you. Before we go any 6 further, you did express what I took to be 7 reservations related to this discussion paper. 8 Copies have been provided to the Panel although there 9 hasn't really been specific reference made to it or 10 not. The issue that we have to determine, and I'd 11 like to know your position, is whether or not it 12 should become an exhibit because of course that puts 13 it in a public forum. There really hasn't been a 14 reference made to it by the Metis Federation in its 15 questioning of you because you made your point quite 16 clearly at the beginning of the questioning but I 17 gather it's a confidential document, is it? 18 MS. LEONOFF: It's a confidential 19 document. It is in fact before a Cabinet Committee 20 at this point in time and ought not to become a 21 public document. I'm a little upset about the wide 22 distribution of it. I don't know how that happened 23 but it's happened. 24 THE CHAIRMAN: We will therefore not file 25 this document. 5050 1 MR. GREWAR: Mr. Chairman, there was a 2 number of documents that were provided as reference 3 material for the cross-examination by MMF. Is it the 4 decision of the Panel not to any enter any of these 5 documents? 6 THE CHAIRMAN: Just the discussion. 7 MR. GREWAR: I haven't yet assigned 8 numbers to them. Perhaps I can do that right after 9 the lunch break. But I did want to assign numbers to 10 the documents submitted by Heather Leonoff. 11 THE CHAIRMAN: All right. 12 MR. GREWAR: And those would start as OTH 13 1025 which would be Consultation Backgrounder, 14 Consultations on the Proposed Wuskwatim Generation 15 and Transmission Projects. The Manitoba Conservation 16 and Fisheries and Oceans, Canada, October 2003. 17 18 (EXHIBIT OTH-1025: Consultation 19 Backgrounder, Consultations on the 20 Proposed Wuskwatim Generation and 21 Transmission Projects. Manitoba 22 Conservation and Fisheries and Oceans, 23 Canada, October 2003. Submitted by 24 Heather Leonoff) 25 5051 1 MR. GREWAR: Exhibit OTH-1026 would be 2 Consultation protocol guideline under the same 3 series. 4 5 (EXHIBIT OTH-1026: Consultation protocol 6 guideline, Consultations on the Proposed 7 Wuskwatim Generation and Transmission 8 Projects. Manitoba Conservation and 9 Fisheries and Oceans Canada, October 10 2003. Submitted by Heather Leonoff) 11 12 MR. GREWAR: OTH-1027 will be 13 Consultation support costs guidelines under the same 14 series. 15 16 (EXHIBIT OTH-1027: Consultation support 17 costs guidelines, Consultations on the 18 Proposed Wuskwatim Generation and 19 Transmission Projects. Manitoba 20 Conservation and Fisheries and Oceans 21 Canada, October 2003. Submitted by 22 Heather Leonoff) 23 24 MR. GREWAR: And 1028 will be 25 Consultation process, proposed Wuskwatim Generation 5052 1 and Transmission Project, Manitoba Conservation and 2 Fisheries and Oceans October 2003. 3 4 (EXHIBIT OTH-1028: Consultation process, 5 Proposed Wuskwatim Generation and 6 Transmission Project, Manitoba 7 Conservation and Fisheries and Oceans, 8 October 2003. Submitted by Heather 9 Leonoff) 10 11 MR. GREWAR: Finally, OTH-1029 would be 12 Manitoba's consultation process in respect of the 13 Wuskwatim Development. 14 15 (EXHIBIT OTH-1029: Manitoba's 16 consultation process in respect of the 17 Wuskwatim Development. Submitted by 18 Heather Leonoff) 19 20 MR. GREWAR: All of those were submitted 21 by Heather Leonoff, Manitoba Justice. If we can 22 assign numbers to those and enter them. 23 THE CHAIRMAN: Thank you. Were there 24 further questions for Ms. Leonoff? 25 MR. GREWAR: Mr. Chairman, we may need to 5053 1 take a break. The Court Reporter has been going for 2 about two hours now. 3 THE CHAIRMAN: Ms. Leonoff, are you 4 available for after lunch? 5 MS. LEONOFF: Yes I am. 6 THE CHAIRMAN: Thank you. We will 7 adjourn for lunch and reconvene at quarter to two. 8 9 (PROCEEDINGS RECESSED AT 12:49 P.M. 10 AND RECONVENED AT 1:45 P.M.) 11 12 THE CHAIRMAN: Ladies and gentlemen, 13 there were some that wanted to come for questions 14 to Ms. Leonoff. 15 MR. GREWAR: Mr. Chairman, just 16 waiting while those who may have questions come 17 forward, I wonder if we could just deal quickly 18 with these items then that were submitted by MMF 19 as part of their reference material for cross. 20 And what I would simply suggest is that we assign 21 a single exhibit number as MMF-1000, refer to it 22 as cross-examination reference material, and then 23 I will list the documents. There is six documents 24 and I will provide titles for them and list them 25 within the content -- 5054 1 MR. MAYER: Don't we have previous MMF 2 material? 3 MR. GREWAR: Pre-filed but not during 4 the hearing. 5 MR. MAYER: We got one in Thompson and 6 we got one in The Pas. 7 MR. GREWAR: That is true, Mr. Mayer. 8 Those were filed as OTH, as in others, because 9 they were not directly representing the Federation 10 in its entirety. We are expecting a presentation 11 from MMF, where I am sure they will enter a number 12 of documents. 13 THE CHAIRMAN: Seeing no one coming 14 forth for further questions -- I asked if anybody 15 was coming forth, Mr. McIvor, while you were 16 setting up, so please -- 17 MR. MCIVOR: Good afternoon. 18 THE CHAIRMAN: I just want to remind 19 you that these are questions, you are asking 20 questions of Mrs. Leonoff, and not a presentation. 21 MR. MCIVOR: No, it won't be a 22 presentation for sure. I just wanted to 23 acknowledge the fine gentlemen at the table and 24 young lady, and also Mrs. Leonoff. My name is 25 Greg McIvor with Trapline # 18. 5055 1 Just listening to some of the 2 discussion this morning, one of the questions that 3 I had was just in relation to -- you are from the 4 Department of Justice? 5 MS. LEONOFF: I am, sir. 6 MR. MCIVOR: With Manitoba? 7 MS. LEONOFF: I am. 8 MR. MCIVOR: And you are here to 9 basically provide us with this document entitled 10 "Manitoba Consultation Process in Respect of the 11 Wuskwatim Development"? 12 MS. LEONOFF: Yes. Manitoba received, 13 Manitoba Justice received a letter that came to 14 Manitoba, I believe through the Department of 15 Conservation, requesting some background 16 information I think, just a better understanding 17 of section 35. So I am the person that was picked 18 to give that background information. 19 MR. MCIVOR: Was that just within the 20 Justice Department, or did you pull in other folks 21 from various departments or -- 22 MS. LEONOFF: No, I was asked to come 23 today and that is what I did. And I wrote that 24 little "backgrounder" that has been filed as a 25 document, just to give people a little heads-up 5056 1 about the kinds of topics that I would be dealing 2 with. 3 MR. MCIVOR: Just a snapshot, 4 basically. 5 MS. LEONOFF: A snapshot, yes. 6 MR. MCIVOR: In terms of -- you had 7 mentioned that there was Ministerial 8 responsibility and the Crown responsibility. And 9 I assume the Crown is not only the Ministers, but 10 all of the other elected representatives for that 11 specific governing party? 12 MS. LEONOFF: Well, the Crown is -- 13 that is a very good question, a very difficult 14 question. I try to draw that distinction because 15 many, many statutes give decisions to Ministers. 16 For example, there is a licencing decision I 17 believe that goes with the Clean Environment 18 Commission which the statutes specifically gives 19 to a Minister. The Crown is that broader concept 20 of the Province of Manitoba, through its 21 Government, the Crown, and it is the institution 22 that has the responsibility to do consultation and 23 to make ultimately the final decision. So the 24 executive, if you will, of that Crown is the 25 Premier and the Cabinet, sometimes we call it the 5057 1 Lieutenant Governor in Council, meaning that group 2 that really is the executive or the operating 3 mind, if you will, of the Government. 4 MR. MCIVOR: So basically the Crown is 5 any elected representative within the Manitoba 6 Legislature? 7 MS. LEONOFF: Well, no, I think it is 8 easier to speak of it as the Cabinet, the Premier 9 and the Cabinet I think is just the easier way to 10 speak of it. 11 MR. MCIVOR: Thank you. One of the 12 questions that I have in terms of that process 13 that you just described was, you had indicated 14 here that the mandate of the Clean Environment 15 Commission was not to determine section 35 rights, 16 that is done in a separate process? 17 MS. LEONOFF: Yes, that is true. 18 MR. MCIVOR: And you have also 19 provided, I wouldn't say a challenge, but you had 20 suggested to the Clean Environment Commission 21 panel this morning that they make a decision on 22 whether or not you would provide information 23 regarding to a specific participant that was here 24 this morning, namely the Manitoba Metis Federation 25 and their representative community. Mr. Lecuyer 5058 1 decided that it wasn't appropriate. 2 In your definition of good faith 3 consultation, and I will just read, 4 "By definition consultation is a 5 process of two way communication in 6 which information is exchanged. The 7 additional requirement of acting in 8 good faith obligates the Crown not 9 only to listen to concerns but to seek 10 to mitigate them if that is reasonably 11 possible." 12 The reason I brought that up is, not 13 knowing all of the stipulations and the delegation 14 of authority to various Ministers as they result 15 from maintaining the Federal obligations as well, 16 such as section 35 rights, my question is: Why 17 wouldn't the Province release that kind of 18 information? And maybe you can answer that after 19 I -- because I have asked for information that was 20 agreed to and I haven't been provided yet as part 21 of this process as well. 22 MS. LEONOFF: Well, the Government of 23 Manitoba has put together a process, I hate to be 24 repetitive, but it is the best that I can be. 25 THE CHAIRMAN: We don't want you, 5059 1 Mrs. Leonoff, to repeat answers that you gave this 2 morning. 3 MS. LEONOFF: So I really can't add 4 anything more than what I have told you. 5 MR. MCIVOR: Okay. All right. In 6 your definition of community, you kept referring 7 back to individuals, individuals like myself 8 coming forward and voicing -- maybe not loudly -- 9 but voicing their concerns and issues in this type 10 of a process, as those making up the community. 11 MS. LEONOFF: The rights belong to 12 communities. The reality is that communities have 13 to speak through individuals. So all I was trying 14 to say is that individuals are going to actually 15 have to do the physical talking, but in the end of 16 the day, what the Government has to be concerned 17 about, what the Crown has to be concerned about is 18 impact on communities, not on individuals. So to 19 the extent that there is a distinction, the Crown 20 is concerned about what the community has to say, 21 about -- 22 THE CHAIRMAN: That is also 23 repetitive, Mrs. Leonoff. 24 MR. MCIVOR: I don't know if it is 25 repetitive, Mr. Chairman. 5060 1 THE CHAIRMAN: Yes, it was answered 2 this morning. 3 MR. MCIVOR: I was just trying to get 4 the definition of what you meant by individuals 5 coming forward, and who qualifies as an 6 individual. 7 In your definition and the repetitive 8 comments that I have made regarding, you know, who 9 is an individual and what are their rights, as a 10 First Nations member from a First Nations 11 community, your suggestion is that the community 12 represents my interests. And in this case there 13 are two communities, one is an unincorporated 14 community under Northern Affairs jurisdiction and 15 one is a First Nations community as recognized 16 under the Indian Act. 17 MS. LEONOFF: I don't know your 18 personal situation. I will say this; the ability 19 of your organization as you identified yourself, 20 the trapline organization, its ability to discuss 21 the impact on your members of your group is this 22 panel, this hearing, that is what it is here to 23 do, to hear from you in your personal capacity, or 24 your group, your trapline, I believe you called it 25 18 group, that is what this process is for. To 5061 1 the extent that you are a member of a community as 2 well, a First Nation community, it is that First 3 Nation community that will speak about the 4 community. And that is why there is two 5 processes. One is more of an individual process, 6 or an organizational process, and that is this 7 process. One is a separate process. And a 8 community is going to speak about what the 9 community's interests are, and that might not be 10 good for every individual within that community, 11 or it might be good for every individual in that 12 community. But it is that concept of communal 13 rights that the Government has to be concerned 14 about under section 35. Individual rights or 15 group rights, such as Trapline # 18, the 16 Government will hear from you through this 17 process. 18 MR. MCIVOR: So that is -- I don't 19 know all of the legalese, but would that be 20 covered under the Charter Rights and Freedoms as 21 an individual? 22 MS. LEONOFF: The rights under section 23 35 are in the Constitution. They happen not to be 24 within the portion of the Constitution called the 25 Charter of Rights and Freedoms, but that is kind 5062 1 of neither here nor there, they are equal 2 Constitutional rights. The rights that you have 3 in this process arise because there is a statutory 4 mandate and terms of reference. 5 MR. MCIVOR: Okay. And is it fair to 6 suggest that those rights are derived from the 7 1930 Natural Resource Transfer Agreement? 8 MS. LEONOFF: Which rights are you 9 talking about, your rights under section 35? 10 MR. MCIVOR: As a resource harvester, 11 trapper, fisher, hunter. 12 MS. LEONOFF: Under section 35, the 13 Natural Resources Transfer Agreement is part of 14 the reason that there is consultation under 15 section 35, it is part of it, yes. 16 MR. MCIVOR: Is one of the main 17 components of that agreement to be able to consult 18 with not just the community, but with the 19 individuals that will be impacted or affected as a 20 result of any kind of major economic development 21 initiatives or -- 22 MS. LEONOFF: The Natural Resources 23 Transfer Agreement does not speak to consultation. 24 MR. MCIVOR: Thank you. I wasn't sure 25 about that. 5063 1 Anyway, in this process you refer to 2 the mandate of the CEC and how it is directly 3 attributed to just focusing on the terms of 4 reference, and there was some discussion about 5 those terms of reference this morning, which I 6 will not repeat -- because I can't remember 7 anyway. But just overall, I think you had 8 suggested that there was really no authority for 9 the CEC to decide on which rights could become 10 part of this process or not, or what is relevant 11 to this current process in terms of making any 12 kind of recommendations to the Minister regarding 13 individual, communal, Aboriginal identification, I 14 guess, as a result of this project as to who is 15 going to be impacted? 16 MS. LEONOFF: That is correct, it is 17 my position that it is not within the mandate of 18 this Commission. 19 MR. MCIVOR: You also indicated that, 20 you know, I think it is on the first page, that 21 under section 35 it recognizes and affirms 22 existing Treaty and Aboriginal rights. Would it 23 be fair to say that upon completion of this 24 process, and you know, with the recommendations 25 from the CEC and other parties, and say for 5064 1 example the Nisichawayasihk Cree Nation, through 2 to a referendum, decided not to support this 3 process or partnership with Manitoba Hydro, would 4 it be fair to say that Manitoba Hydro could then, 5 and the Province of Manitoba could then proceed 6 with the construction on the basis that it is -- I 7 am just looking for it here -- where it has 8 something to do with the economic prosperity of 9 Manitoba and good governance I think at this 10 point? 11 MS. LEONOFF: I can't answer that 12 directly. What I can say to you is that the 13 Government of Manitoba, this Crown that we spoke 14 about, has the ultimate responsibility to issue an 15 approval, if you will, a licencing process through 16 the water power licence. And once it issues -- if 17 it chooses to issue that, when it has all of the 18 best information before it, if it chooses to issue 19 that, then it would be up to the proponent to 20 decide what to do. But the Government's role is 21 to make a decision. And I am sure you are 22 familiar, Governments look at a lot of things in 23 making a decision, it is a huge responsibility on 24 Government to look at a variety of factors. And 25 that is the best that I can answer your question, 5065 1 is to say that one of the factors that they will 2 look at, they must look at, is the section 35 3 consultation report. They must look at that, they 4 must consider that. 5 MR. MCIVOR: All right. I have a 6 couple of -- I don't know if this was sent from 7 your office as well? 8 MS. LEONOFF: Those are the documents 9 that I believe have been marked as exhibits at the 10 end of my presentation before we broke for lunch 11 or whatever. Those are documents that have been 12 circulated within the communities to give the 13 communities some information, they are information 14 pamphlets, documents, I think that is it. They 15 just help people know what is going on. They are 16 available at meetings to pick up off the table. 17 MR. MCIVOR: Like this consultation 18 process that you are talking about, the outside of 19 this process, section 35, are those limited to 20 just community consultations? Like they are 21 not -- like what I am trying to get at is, as an 22 individual, can you make a presentation too? 23 MS. LEONOFF: You can make a 24 presentation about -- yes, you can make a 25 presentation, that is the best answer that I can 5066 1 give you. In the end of the day, what will be 2 looked at is to try and write about your community 3 as opposed to your individual. I appreciate how 4 difficult that is to understand. And don't get me 5 wrong, Mr. McIvor, we struggle with it as well. 6 But sometimes the example that I give to try and 7 explain the difference is to make it clear that a 8 community may decide what is best for the majority 9 in the community. The reality is there will be a 10 minority and that might not be to their advantage. 11 But from the Government's perspective, it must 12 look at the community, not at the individual. 13 That is different than this CEC panel 14 which can certainly talk about -- at least my 15 understanding of its mandate, and it is certainly 16 up to Mr. Abra to advise -- but can certainly talk 17 about the impact on individuals. 18 MR. MCIVOR: In some of your comments 19 you had indicated that, you know, this is not 20 something that the Government was familiar with in 21 terms of a process for a project such as 22 Wuskwatim, because it is the first time it has 23 ever been conducted. 24 MS. LEONOFF: The Government of 25 Manitoba has been doing consultation before 5067 1 Wuskwatim. We have been doing consultation for a 2 number of years, but we have been doing it on 3 smaller -- we meaning the Government of 4 Manitoba -- have been doing it on smaller 5 projects. And on smaller projects, each time you 6 look at consultation, you look at the best way to 7 do this particular consultation, whatever your 8 project is. And you think about that. Wuskwatim 9 is a very major project and, therefore, the 10 Government of Manitoba had to think afresh the 11 best way to deal with consultation in this 12 particular context. That is all I was trying to 13 reflect when I said this size of a project is 14 different than consultations that are occurring 15 all of the time. 16 MR. MCIVOR: So we are kind of 17 learning as we go sort of thing as well? 18 MS. LEONOFF: I think that is a fair 19 statement. 20 MR. MCIVOR: Oftentimes we have to 21 adjust the process to accommodate issues as they 22 arise as well? 23 MS. LEONOFF: As I said many times, 24 nothing is carved in stone. 25 MR. MCIVOR: Earlier there were some 5068 1 discussion about community and the sense of 2 community as to, I think there was a reference 3 that you had made that this Wuskwatim project, 4 every community knew about it, they are aware of 5 it. You know, I grew up in a small community and, 6 you know, oftentimes, like you said, there was 7 some discussion or dialogue with governments, 8 whether they be Federal, Provincial, or maybe a 9 corporation such as Hydro, Repap, Tolko type 10 stuff. And I often found that unless you were a 11 logger, or a fisherman, or a trapper, you know, 12 you didn't attend those types of discussions, even 13 though everybody was aware of it. You know, 14 because my family was a trapping family in the 15 community of Wabowden, we wouldn't necessarily 16 attend a fishing meeting, because there is no 17 direct correlation to trapping. And I am sure it 18 is the reverse for fishermen when there is a 19 trapper's meeting. 20 So I guess my point is that even 21 though it is assumed that everybody is aware, and 22 feel that it is a good thing or a bad thing, I am 23 not going to argue with that, but at the same 24 time -- and I am sure Mr. Nepinak would agree -- 25 that unless it directly affects an individual or a 5069 1 family specific to whatever resource or issue it 2 is, people will not normally participate. 3 MS. LEONOFF: And that is why the 4 Government of Manitoba is doing the best it can to 5 alert the greatest number of communities that it 6 is coming out to listen. And hopefully, we are 7 getting through to the right people. 8 MR. MCIVOR: And I guess my point on 9 that is, you know, oftentimes, you know when we 10 limit the type of information in these processes, 11 you know, how can you create the awareness that 12 you are suggesting you are trying to do, in 13 particular with the request this morning? Because 14 it just seems that, you know, it is almost ad hoc 15 as to what can be put on the table. 16 MS. LEONOFF: The information that the 17 Government of Manitoba is sharing with communities 18 is about the impact of this project on the 19 environment, so that it can get feedback on how 20 this would impact on communities' history, 21 traditions, and culture. That information is 22 being shared as best that the Government of 23 Manitoba can share it. And we all recognize that 24 this is highly technical information, but we are 25 trying as best we can to have a full and frank 5070 1 discussion with communities. If communities want 2 additional information, communities ask for 3 additional information. And we are doing our best 4 to share and to get the best possible information 5 that we can. 6 MR. MCIVOR: In saying that then, you 7 would agree that, you know, questions regarding 8 cumulative impacts from previous projects and how 9 they affect a specific region and area, as you 10 explained, the culture, the traditions, the 11 values -- 12 MS. LEONOFF: I don't know the details 13 of what information is being shared. I know that 14 the Government of Manitoba wants information from 15 people on the impact of the Wuskwatim project on 16 their culture, traditions, and histories. I can't 17 speak beyond that, sir. I don't know any of the 18 technical information whatsoever. 19 MR. MCIVOR: But, you know, for 20 example, wouldn't cumulative effects be one of the 21 items that could affect the information that you 22 are trying to retrieve? 23 THE CHAIRMAN: Mr. McIvor, this is 24 what this forum is all about, and you have the 25 opportunity to input on the cumulative effects, as 5071 1 an individual, how it affects you. 2 MR. MCIVOR: No. 3 THE CHAIRMAN: You have that 4 opportunity to input on this process here. 5 MR. MCIVOR: I am just asking some 6 questions from the lady from Justice. 7 THE CHAIRMAN: That is not a pertinent 8 question. 9 MR. MCIVOR: Why wouldn't it be? 10 THE CHAIRMAN: Because Mrs. Leonoff is 11 here to talk about section 35. 12 MR. MCIVOR: I thought she said she 13 wasn't, she refused to answer questions earlier on 14 section 35. 15 THE CHAIRMAN: She presented the 16 information this morning, and she answered some of 17 the questions that were pertinent, and others she 18 indicated that she could not. If you are asking 19 about -- 20 MR. MCIVOR: Which one is it then? 21 THE CHAIRMAN: If you asking about 22 cumulative impacts, environmental impacts of the 23 project, this is the forum where you will address 24 it. 25 MR. MCIVOR: She is asking about 5072 1 consultation process -- 2 THE CHAIRMAN: I do not wish to argue 3 with you, Mr. McIvor. 4 MR. MCIVOR: I don't either, I am just 5 trying to ask some questions. 6 THE CHAIRMAN: I just told you that 7 question was not relevant. 8 MR. MCIVOR: She just explained 9 that -- 10 THE CHAIRMAN: Do you have other 11 questions, Mr. McIvor? 12 MR. MCIVOR: Yes, I do -- 13 THE CHAIRMAN: Ask them. 14 MR. MCIVOR: -- but this is one of 15 them. How can I ask them if you don't allow me to 16 ask them? 17 THE CHAIRMAN: Mr. McIvor, you will 18 have an opportunity and you have had an 19 opportunity to input in the process of the CEC 20 hearings, and you would like to ask questions now 21 on the cumulative impacts. And I stated that you 22 will have the opportunity to raise questions in 23 this hearing on that very issue. 24 MR. MCIVOR: I think, you know, for 25 all intents and purposes, I think Ms. Leonoff is 5073 1 representing the Provincial Government in this 2 process as part of her presentation today. And I 3 am sure, you know, because she provides, I assume 4 legal advice to her client, that information is 5 relevant for both parties in terms of good faith 6 consultation. 7 THE CHAIRMAN: You keep arguing, 8 Mr. McIvor. Do you have other questions? 9 MR. MCIVOR: You know what, I won't 10 ask any more questions, I don't think it is 11 appropriate at this time to ask any more. I mean, 12 you come up with questions and then you guys don't 13 want to answer them. Thank you very much. 14 THE CHAIRMAN: Mr. McIvor, you have 15 asked a numbers of questions. You were not 16 prevented from asking them. I just indicated that 17 that particular question was not relevant. Any 18 other questions? 19 Mr. Baker, come forward. 20 MR. BAKER: Good afternoon, my name is 21 Chris Baker, I am from -- my title is, in my 22 community, I am the Headman of the 23 O-Pipon-Na-Piwin Cree Nation in South Indian Lake. 24 You mentioned that we are one of the communities 25 that are going to be -- or part of the 5074 1 consultation process. So I just have to ask a 2 question. 3 And we are talking about, I am 4 assuming, Mr. Chairman, on consultation under 5 section 35, if I am correct on that. And 6 consultation is to be delivered by both 7 governments, if I am clear on that, from 8 Provincial and Federal Government? 9 MS. LEONOFF: By going to the -- I 10 didn't hear your question? 11 MR. BAKER: The consultation, as I 12 understand it -- and you can clarify that and 13 correct me if I am wrong or right, I would 14 appreciate it -- but as I understand it, 15 consultation under section 35, the Act itself, is 16 to be delivered by both the Federal and Provincial 17 Government? 18 MS. LEONOFF: Yes. 19 MR. BAKER: Whereby a decision will be 20 given by Cabinet to grant a licence to the 21 proponents, which is Manitoba Hydro and NCN? 22 MS. LEONOFF: To look at whether a 23 licence ought to be granted, and if so, what terms 24 and conditions ought to be put on it that would 25 ameliorate or otherwise deal with potential 5075 1 impacts on Treaty and Aboriginal rights. 2 MR. BAKER: Thank you. My question 3 is, how does the Provincial Government do this 4 without full consultation on section 35 without 5 any results? Earlier you told me, when I was 6 sitting down listening to you, you indicated that 7 it would take about maybe 15 -- 10, 15 years to 8 have final result of that, and understanding the 9 input of each individual community, I guess to put 10 light on to that. 11 MS. LEONOFF: What I was saying was 12 that answering all of the legal questions will 13 take a long time. In the interim, governments 14 have to make wise decisions. It is hoped that we 15 have come up with a legitimate process to obtain 16 proper consultation. We are being broad based in 17 our consultation. We are not standing on any kind 18 of limitation about what can be raised as a 19 potential Treaty and Aboriginal right at this 20 point in time. We may, as a Government, the 21 Cabinet may choose to accommodate impacts that 15 22 years from now turn out not to be Treaty and 23 Aboriginal rights. They are -- because the 24 Government can choose to accommodate what we call 25 good Government, because of being a good 5076 1 Government. So we are trying to be as broad based 2 as possible, make no decisions up front about we 3 will talk about this but we won't talk about that 4 in terms of Treaty and Aboriginal rights, and try 5 and get the best possible information for decision 6 by Cabinet later on in time. I hope that 7 clarifies. 8 MR. BAKER: Thank you. So my question 9 then, will the Government of Manitoba give 10 compensation after the fact if there are 11 infringements of our Treaty and Aboriginal rights? 12 And if not from the Provincial Government, what 13 about the proponents, Manitoba Hydro and NCN? 14 MS. LEONOFF: I certainly can't speak 15 to the proponents. In respect of the Province of 16 Manitoba, the decision will be that of Cabinet 17 about what to do. 18 MR. BAKER: Thank you. 19 THE CHAIRMAN: Thank you, Mr. Baker. 20 Any further questions? 21 MR. MOORE: Thank you, Mr. Chairman. 22 I am Billy Moore from South Indian Lake. I will 23 make a comment for a second then I will ask a 24 question, if you don't mind. 25 THE CHAIRMAN: Begin with your 5077 1 question. 2 MR. MOORE: Okay. My question is -- 3 sorry, what is the lady's name? 4 THE CHAIRMAN: Mrs. Leonoff. 5 MR. MOORE: Okay. Do you -- or as the 6 representative of the Government of Manitoba, has 7 the Government decided anyway to grant the licence 8 of the Wuskwatim project? 9 MS. LEONOFF: First of all, I am not a 10 representative of the Government of Manitoba, I am 11 legal counsel, one of many legal counsel to the 12 Government of Manitoba. And what I can tell you 13 is that the Government of Manitoba is legally 14 obligated to consider the consultation report that 15 is being prepared, and to treat it -- to look at 16 impact, and to decide after it looks at impact 17 what it wants to do. So, since it doesn't have 18 the document, it can't have decided how to deal 19 with impact yet, because it hasn't seen anything. 20 It must receive this document, and treat it 21 appropriately. 22 MR. MOORE: Mr. Chairman, I withdraw 23 my question. I wasn't here when Ms. Leonoff made 24 her presentation. I thought she was a rep of the 25 Government. Thank you. 5078 1 THE CHAIRMAN: Thank you. Seeing no 2 further questions -- 3 MS. BRUYERE: I am Caroline Bruyere, I 4 am an elder of Sagkeeng First Nation. My question 5 is, in order to have meaningful consultation and 6 to give informed consent, should we not have the 7 Water Power Act, also the Crown Lands Act, for the 8 transmission lines? Should we not have all of 9 that information so as to be able to give good 10 informed consent? 11 MS. LEONOFF: Okay. First of all, the 12 Acts that you refer to are Provincial Acts and are 13 available, if you want to see the words of them, 14 on the Government of Manitoba website. So you can 15 get copies of the statutes. 16 Secondly, I would advise and just 17 clarify, there is a false premise within your 18 question. Consultation is a process of sharing of 19 information. There is no requirement of informed 20 consent. Consent is not part of consultation. 21 MS. BRUYERE: I feel that in order to 22 come to the final result as to the decisions that 23 have to be arrived at, we have to be informed in 24 order to give consent. And some of us are not 25 aware of all of the Acts or bylaws, provisions, 5079 1 whatever legislation there is that governs 2 Manitoba or Canada. There is a lot of licencing 3 protocols also that we should be aware of. And I 4 think those should be made available in a forum 5 such as this so we would know what there is. 6 THE CHAIRMAN: All of these pieces of 7 information are on the record, as Ms. Leonoff has 8 indicated, and you have the opportunity to consult 9 them. And this has to do, the issue that we are 10 discussing right now has to do with Wuskwatim, not 11 Canada as a whole, or Manitoba as a whole, or all 12 of the issues relating to these acts about 13 Manitoba. 14 MR. BRUYERE: I think there is a 15 bearing on Canada, because will Canada not 16 contribute to the development of the Wuskwatim 17 dam? 18 THE CHAIRMAN: Not that I am aware of. 19 MR. BRUYERE: Okay. Thank you. 20 THE CHAIRMAN: Perhaps I should 21 correct that by saying that the Government, as was 22 indicated previously by NCN/Hydro, there is a 23 contribution towards the training of people to be 24 employed in the project. 25 Further questions? Seeing none, we 5080 1 appreciate the time and your contribution. Thank 2 you very much. 3 MS. LEONOFF: Thank you very much. 4 THE CHAIRMAN: One of the presenters 5 that is on the schedule for this afternoon, or the 6 first is Mr. Billy Moore. 7 MR. GREWAR: Mr. Chairman, Mr. Moore 8 is interested in cross-examining the panel, the 9 Hydro panel. So I believe that we would need an 10 opportunity for them to reassemble and Mr. Moore 11 would ask some questions, to be followed by the 12 Canadian Nature Federation. 13 THE CHAIRMAN: That's correct. Is 14 Mr. Moore here? 15 MR. GREWAR: Mr. Chairman, I was just 16 thinking that this might be an opportunity to 17 enter an exhibit. This dates to yesterday, and 18 this is during the cross-examination of the 19 proponent by O-Pipon-Na-Piwin Cree Nation, and it 20 is their reference material for cross-examination, 21 and I would propose entering it as OPN/PCN-1000, 22 cross-examination reference material with eight 23 attached items which are listed now as part of the 24 exhibit. 25 THE CHAIRMAN: Thank you, Mr. Grewar. 5081 1 2 (EXHIBIT OPN/PCN-1000: Cross 3 examination reference material with 4 eight attached items) 5 6 THE CHAIRMAN: Mr. Moore, would you 7 proceed with your questions? 8 MR. MOORE: Thank you, Mr. Chairman. 9 If you don't mind, I would like to open with a 10 prayer. Is that all right with you? 11 THE CHAIRMAN: If it is short, yes. 12 MR. MOORE: It is very short. 13 Lord, we thank you for the opportunity 14 of being assembled here together, and we pray that 15 thou will examine all of the hearts by your Holy 16 Spirit, and thou will grant us the wisdom in 17 questioning and answering. We commit these things 18 into your hands, for Christ's sake, amen. 19 Thank you, Mr. Chairman. I have one 20 request to the Chair, or the panel maybe as a 21 whole, before I start my questions. If it is in 22 order, and if it is possible, I would like to 23 request that all of the legal advisors of any sort 24 be excused from the room until I finish my 25 questioning. I don't like any objections or 5082 1 interceptions when the questioning is in process. 2 THE CHAIRMAN: I am sorry, I can't do 3 that. 4 MR. MOORE: I thank you. I just 5 thought that I would request, if I didn't, I 6 wouldn't know if it could happen or not. 7 Okay, questions. Councillor Thomas, 8 during the process of these hearings I hear the 9 word often "benefits." And I understand these 10 benefits will be derived from the proposed 11 Wuskwatim project. 12 My question is, what are those 13 benefits? 14 MR. THOMAS: We -- 15 THE CHAIRMAN: Sorry, some of the, 16 part of this question, or most of this question 17 was answered, so I hope we don't repeat the whole 18 answer. 19 MR. THOMAS: I was going to make a 20 comment that we did a presentation that outlined 21 the benefits that we are talking about, and the 22 answers are contained in that presentation. 23 MR. MOORE: How may I obtain that 24 document? 25 THE CHAIRMAN: You can get the copy of 5083 1 the transcript. 2 MR. MOORE: Okay. However, Councillor 3 Thomas, I would still like to hear from you, as 4 the rep of Chief and Council and perhaps as a 5 member of Nisichawayasihk Cree Nation, who are the 6 benefactors, A, Chief and Council and their 7 families, B, all resident members of NCN, C, 8 non-resident members of NCN, D, all of the above? 9 MR. THOMAS: I indicated previously 10 that NCN members are the beneficiaries, or 11 potential beneficiaries. 12 MR. MOORE: And you say that these 13 benefits are on the document, and I don't know 14 what they are until I look at the document, is 15 that right? 16 MR. THOMAS: I would strongly suggest 17 that you look at them, yes. 18 MR. MOORE: Thank you. Now, I may -- 19 or rather I am what you might say a tripartite 20 person in this particular case, meaning a member 21 of NCN, a member of DRSIL, and as a person, an 22 individual person. Now, I just want to make sure 23 that people present know what I am doing, because 24 often I am told that I am not representative of 25 anybody, but I do have a mouth to ask questions. 5084 1 Now, is Chief and Council supported in 2 any way to me, or to the members as a whole of 3 DRSIL, in their suit against Hydro? If yes, how; 4 if no, why not? 5 There you go, Mr. Chairman, that is a 6 legal counsel, I do not want to hear him. 7 MR. LEVEN: Elliot Leven, for the 8 record, and I think the Chairman knows what I am 9 about to say. DRSIL has advanced, or its members 10 have advanced claims under the Northern Flood 11 Agreement, those claims are before the Northern 12 Flood agreement arbitrator, under a separate 13 arbitration process which has nothing whatsoever 14 to do with this hearing. 15 THE CHAIRMAN: That is what I would 16 have had to say to you too. 17 MR. MOORE: Excuse me? 18 THE CHAIRMAN: That is what I would 19 have had to say to you, if you were expecting a 20 reply from me. 21 MR. MOORE: I do like to have a reply, 22 because -- 23 THE CHAIRMAN: But what you have just 24 been told, this is in front, it is a legal issue 25 that is in front of an arbitrator, and a decision 5085 1 has not been made on that. Therefore, we can not 2 derive answers for a decision that has yet not 3 been given. 4 MR. MOORE: Thank you, Mr. Chairman. 5 I am very persistent, I am not afraid of anybody, 6 I will ask the questions until they are answered 7 to my satisfaction. 8 Is Chief and Council supportive in any 9 way in our cause, in our suit against the Manitoba 10 Hydro? If yes, how; if no, why not? 11 THE CHAIRMAN: It is the same 12 question. 13 MR. MOORE: It is. I told you I will 14 keep repeating it until I get an answer. 15 THE CHAIRMAN: It is unfortunate 16 because the question is out of order. 17 MR. MOORE: Mr. Chairman -- 18 THE CHAIRMAN: But you may, nothing 19 prevents you individually approaching a member of 20 Chief and Council on your own to get the reply, 21 and I won't be there to call you out of order on 22 that point. 23 MR. MOORE: Thank you, Mr. Chairman. 24 With your intellectuality, as opposed to mine -- 25 THE CHAIRMAN: It is limited today. 5086 1 MR. MOORE: -- do differ, mine is very 2 simple, yours is hierarchy. To me these questions 3 are not out of order. Every member that is within 4 the scope of this hearing are affected, so the 5 questions are appropriate, the questions are not 6 out of order, in my caliber. I don't know about 7 yours. 8 THE CHAIRMAN: Well, the question has 9 been clearly, as you have been told, is clearly 10 out of order. And you didn't state who you were 11 asking this question of. 12 MR. MOORE: I was referring to 13 Councillor Thomas. 14 THE CHAIRMAN: I suspect he will tell 15 you the same thing we told you, but I will give 16 him a chance, for your persistence. 17 MR. THOMAS: I cannot provide with you 18 a comment on the question because it is before the 19 arbitrator. 20 MR. MOORE: Thank you. Why does NCN 21 have to borrow money from the Hydro to finance the 22 proposed Wuskwatim project? 23 There you go again, Mr. Chairman. I 24 do not like legal counsel right now. 25 THE CHAIRMAN: Don't go too fast. We 5087 1 will see. 2 MR. LEVEN: Elliot Leven for the 3 record. It strikes me that this question, and I 4 suspect some of the questions that we are about to 5 hear have to do with needs and alternatives rather 6 than environment, and this is the environment 7 panel. 8 THE CHAIRMAN: That is not as clear 9 cut as you make it, Mr.Leven. But I will allow 10 the question to stand and ask Mr. Thomas to 11 provide his answer. 12 MR. MOORE: Thank you, Mr. Chairman. 13 MR. THOMAS: Your question again 14 please? 15 MR. MOORE: Why does NCN have to 16 borrow money from the Manitoba Hydro to finance 17 the proposed Wuskwatim project? 18 MR. THOMAS: Because it is one of the 19 available sources of revenue that is available to 20 NCN. And as you well know, as a member of NCN, we 21 are not very rich by ourselves, we don't have 22 money coming out of our ears or our pockets, and 23 we have to look to other sources to satisfy the 24 needs of our community. 25 MR. MOORE: Thank you. Wouldn't it 5088 1 have been better, however, for NCN to charge 2 Manitoba Hydro so much per square foot for the 3 flooded land, and there comes the revenue? 4 MR. THOMAS: As a member of NCN, and 5 also as an elected leader of NCN, I do believe 6 that we have engaged in a negotiation process for 7 compensation, and that we have received a 8 compensation package that has been taken to both 9 our peoples, one at NCN and one at South Indian 10 Lake, and it deals with those kind of issues, and 11 we received a compensation package, and it was 12 approved by our communities, and it has already 13 been done. 14 THE CHAIRMAN: Mr. Moore, I suppose 15 one could say, if you borrow money and all of a 16 sudden you hit the jackpot, maybe you can repay 17 the money you borrowed. 18 MR. MOORE: Excuse me? 19 THE CHAIRMAN: Sorry, it is okay, just 20 making a joke. 21 MR. MOORE: Thank you. I am sorry, I 22 did not understand the answer from Councillor 23 Thomas, perhaps he didn't understand my question. 24 My question was, wouldn't it have been better -- 25 instead of explaining something else -- wouldn't 5089 1 it have been better for NCN to charge Manitoba 2 Hydro so much per square foot for the flooded 3 land? 4 MR. THOMAS: Like I said previously, 5 it is an issue that was under discussion for many, 6 many years, from 1977 up until 1996. And 7 compensation packages were developed and approved 8 by the communities, and the issue of that has been 9 taken care of. 10 MR. MOORE: May I intercept? 11 THE CHAIRMAN: No, just listen to the 12 answer first. 13 MR. THOMAS: The issue has been dealt 14 with already, Mr. Moore. 15 MR. MOORE: Councillor Thomas, you 16 still did not answer my question. Wouldn't that 17 have been better to charge the Hydro per square 18 foot of the land? 19 MR. MAYER: Maybe you better determine 20 which land he is talking about? 21 MR. MOORE: I am talking about the 22 Wuskwatim Lake that is going to be flooded. And I 23 will compare, for the information sake, I will 24 compare a city lot, 10,000 square feet, you can 25 sell it for $30,000. If you imagine the square 5090 1 footage Wuskwatim Lake will be flooded, if that 2 was charged to the Hydro by NCN, wouldn't that 3 have been better than borrowing it? 4 MR. THOMAS: For the amount of 5 flooding that we are talking about, which is less 6 than half a square kilometre, I don't believe that 7 we would be able to raise enough money from that 8 to satisfy the equity needs. 9 MR. MOORE: There would have been 10 plenty, because I am going to say further, apart 11 from the charge of the square footage, it could 12 have been an ongoing revenue from the Hydro to 13 NCN. 14 MR. THOMAS: We've taken direction 15 from our people with respect to negotiating this 16 opportunity here, Mr. Moore. And we believe that 17 the direction from the people has provided us with 18 the best possible deal that we can come up with. 19 MR. MOORE: Thank you, Councillor 20 Thomas, when you say we take direction from our 21 people. Do those people happen to be the NCN 22 members? 23 MR. THOMAS: All of the people that 24 are entitled to vote participated in a vote, and 25 the general will of the majority are whom I am 5091 1 referring to. And you as one NCN member are -- I 2 don't know if you participated in the vote, but if 3 you did, you had an opportunity to register your 4 opinion via your vote. 5 MR. MOORE: I have voted, and as you 6 can tell by my questions how my vote went. 7 Anyway, Councillor Thomas, there is a 8 future ahead of us, maybe not for you and I, but 9 for our children, our grandchildren. I am 10 somewhat disturbed by the Hydro as instituting a 11 partnership with NCN. What -- either Councillor 12 Thomas or one of the Hydro officials can answer 13 this one -- what makes Hydro think that they will 14 keep their promises or their word, whatever, when 15 they did not keep their promises from the first 16 project, referring to Missi Falls? 17 MR. THOMAS: That one I will let Hydro 18 answer. 19 MR. MOORE: I kind of figured you 20 would. 21 MR. WOJCZYNSKI: Ed Wojczynski here. 22 When you were talking about Missi Falls, I think 23 you are talking about the broader project of CRD. 24 There was the Northern Flood Agreement. 25 MR. MOORE: Mr. Chairman, if the 5092 1 gentleman don't mind, rather than using the 2 letters, if he would use the words, because, like 3 I said, my intellectualism is somewhat lower than 4 yours. What is the DR -- DRC is what he said? 5 THE CHAIRMAN: CRD. 6 MR. WOJCZNSKI: Churchill River 7 Diversion. 8 MR. MOORE: There you go. Now I 9 understand. 10 11 MR. WOJCZNSKI: I assume that when you 12 are talking about Missi Falls, you are thinking of 13 the broader project that is usually referred to as 14 Churchill River Diversion. And Churchill River 15 Diversion, as I think you know, was subject to an 16 agreement called the Northern Flood Agreement. 17 And Manitoba Hydro and others were signatories to 18 that, and we have been keeping our word in regard 19 to the Northern Flood Agreement. And one of the 20 ways we have been keeping our word is with NCN, 21 Nisichawayasihk Cree Nation -- you don't want me 22 to use letters -- that we signed the 23 implementation agreement, and that we are 24 implementing that, and in effect implementing the 25 NFA. So Manitoba Hydro is keeping its word. 5093 1 MR. MOORE: Excuse me, what is your 2 name? 3 MR. WOJCZYNSKI: My name is Ed 4 Wojczynski. 5 MR. MOORE: Okay, Mr. Wojcznski. You 6 said you have been keeping your word under the 7 NFA. And I am very sure you are familiar with 8 NFA. In some section there it says, any NCN 9 member, individual, can apply to the Hydro for 10 compensation of some sort. And there have been 11 over 400 of us individuals that have applied for 12 the last 11 years, nothing has happened. How can 13 you say that you keep your word? 14 MR. WOJCZYNSKI: Are you referring to 15 the DRSIL claims? 16 MR. MOORE: Yes, I do. 17 MR. WOJCZYNSKI: As I think has 18 already been referenced, the DRSIL claim is in 19 front of the arbitrator and is being processed. 20 Just because something is in front of the 21 arbitrator, that doesn't mean we don't keep our 22 word. That is a way to, in effect -- and I am not 23 speaking as a lawyer, I am speaking as a 24 layperson -- to arbitrate a disagreement over 25 something. 5094 1 MR. MOORE: Okay. For the last 11 2 years, I have heard this claim -- these claims are 3 in the process, these claims are in front of the 4 arbitrator, these claims are with the mediator. 5 When are they going to be factual? 6 MR. WOJCZYNSKI: There is a process in 7 place to deal with the issues. 8 MR. MOORE: I just said that. I just 9 said that. But then I am asking, when are they 10 going to be factual? 11 MR. WOJCZYNSKI: I think when you are 12 asking when they are going to be factual, you mean 13 when is the issue going to be resolved? 14 MR. MOORE: Ten four. 15 MR. WOJCZYNSKI: So the issue is in 16 the process, and I don't know and I don't think 17 that anybody can tell you when it is going to be 18 resolved. 19 MR. MOORE: Mr. Wojcznski, is the 20 Hydro going to keep their word and compensate 21 these DRSIL members within the NFA? Are they 22 going to? 23 MR. WOJCZYNSKI: We do and will keep 24 our word, and where compensation is required and 25 appropriate, we will compensate. 5095 1 MR. MOORE: What is an appropriate 2 compensation? 3 MR. WOJCZYNSKI: Where appropriate. 4 MR. MOORE: You are appropriate, in 5 what way? 6 THE CHAIRMAN: No, this is -- we are 7 going off course here. Because you are coming 8 back to the same questions that you were asking a 9 while ago. 10 MR. MOORE: Until he answers, I will 11 keep coming back. I keep telling you that too. 12 If you want to excuse me, I would like to excuse 13 myself, but I do have questions that pertain to 14 the future of our children, our grandchildren, our 15 great-grandchildren. These things have to be 16 brought forward for this Commission, so they can 17 make recommendation. Unfortunately, however, I do 18 feel that the Hydro already made up their mind, 19 the Government already made up their mind. 20 THE CHAIRMAN: I am allowing you a lot 21 of leeway, Mr. Moore, but you keep coming back to 22 the question for which there is no answer at the 23 present time, it is in front of the arbitrator. 24 And the question itself is not pertinent to the 25 issue at hand. 5096 1 MR. MOORE: It has a link, it has a 2 connection. 3 THE CHAIRMAN: We have no mandate to 4 resolve that issue, therefore, it is not in our 5 purview at this time. 6 MR. MOORE: It does have a leeway to 7 it. 8 THE CHAIRMAN: Like I said, I allow 9 you a lot of leeway, but at a point when you get 10 an answer -- you can not always get the answer you 11 want as an answer. 12 MR. MOORE: Don't worry, I will be 13 persistent. 14 Councillor Thomas, not Mr. Wojcznski, 15 Councillor Thomas, do you give a direction to NCN 16 members -- as an elected official of the NCN, can 17 you tell me if in fact the Manitoba Hydro will not 18 wash their hands after they have completed the 19 project like they did at South Indian Lake? 20 MR. THOMAS: I don't think it would be 21 a very wise decision on their part to do something 22 like that. They will have a legally binding 23 agreement that we will be able to have enforced. 24 So, no, I don't believe that they can just wash 25 their hands and walk away with a project that is 5097 1 already built. 2 MR. MOORE: I wish I can believe that 3 myself. We live in a democratic society, we live 4 with our white brothers. They came to our 5 country, infringed their laws, their regulations, 6 their rules upon us. And we have been -- pardon 7 the expression -- dumb enough to follow it. And 8 on that basis, I am somewhat leery that that is 9 what the Hydro may do -- I am not saying that they 10 will. Regarding, if they have a legal binding 11 agreement, sometimes these legal binding 12 agreements are invalid, and I am hoping it will 13 not be the case with the Hydro. What do you 14 think? 15 THE CHAIRMAN: He has answered that 16 question to the effect that he stated that there 17 will be a signed agreement, those agreements are 18 legally binding. And Mr. Moore, as a person who 19 just said, called upon some enlightenment in a 20 prayer just before, maybe you can also put a 21 little bit of faith in this. 22 MR. MOORE: Thank you. Faith, a lot 23 of us lack, including me. 24 He did answer, but I would like to 25 compound the question, if I may. Apart from the 5098 1 legal binding agreement, is it not possible that 2 they can break it? 3 MR. THOMAS: I answered the question 4 already, Mr. Moore, but if someone wants to do 5 something to break a legally binding arrangement, 6 there are consequences that have to be faced. 7 MR. MOORE: Unfortunately, when the 8 Government as a whole can do as they please, I do 9 not see any consequences for the Hydro if they do 10 break these promises. And that is it. Thank you. 11 THE CHAIRMAN: There is a legislative 12 and a judicial branch. The two are separate. One 13 can judge if the other breaks the rules. 14 MR. MOORE: Thank you. 15 THE CHAIRMAN: Thank you, Mr. Moore. 16 We now go with the cross-examination 17 of the Nature Federation. 18 MR. HICKS: Perhaps I could offer some 19 clarification to a point that Commissioner Mayer 20 raised yesterday with respect to the Grass River 21 crossing. 22 THE CHAIRMAN: Yes. I don't think you 23 went there during the night, though. 24 MR. HICKS: No, but I made some phone 25 calls. I went back to the environmental team and 5099 1 to the EIS on this matter, and what we had said in 2 the EIS was that this section of the Grass River 3 generally remains open. That was on page 534. If 4 you recall, Commissioner Mayer had challenged me 5 on that, and I can report that Mr. Mayer is 6 correct. We spoke to Tony Brew, who is the owner 7 of the Weskusko Falls Lodge. Mr. Brew was one of 8 the individuals that we contacted in the course of 9 the routing process, and his lodge is located 10 right on the river fairly near that location. He 11 is aware of the local conditions, and he is aware 12 of the particular location of the proposed 13 crossing because he was instrumental in helping us 14 to identify the proposed crossing. We read him 15 the statement. He characterized that as an 16 overstatement, that the river does freeze, 17 however, he did also say that the ice conditions 18 are generally unstable, and that in his view would 19 not be safe for either walking or snowmobiling. 20 So on that point I would like to confirm that 21 Commissioner Mayer is correct. But with respect 22 to the limitation on access, I believe that we 23 still would be of the view that access is limited. 24 THE CHAIRMAN: Thank you, Mr. Hicks. 25 So, Mr. Mayer, you are correct, at your own risks. 5100 1 Mr. Osler. 2 MR. OSLER: Also another undertaking 3 at page 4438 of the transcript, it is noted that 4 under Manitoba Hydro undertaking number 70. I 5 promised to provide a copy of the CEA 1994 guide 6 on cumulative effects to the questioner from 7 CAC/MSOS. And I have done that. So that is on 8 the record. 9 And the undertaking number 65, when I 10 read the transcript, I did advise that the date of 11 that meeting of the SIL elders workshop was March 12 19, 2002, but I did not state that it took place 13 in Nelson House. 14 THE CHAIRMAN: Thank you. 15 Ms. Whelan Enns, just before you 16 begin, first let me thank you for responding to 17 the question yesterday in regards to Mr. Gilmore, 18 and you have advised us that Mr. Gilmore will not 19 return or be available for a further 20 cross-examination. Therefore, that is on the 21 record. 22 We undertook to advise in regards to 23 the report which Mr. Kulchyski sent sometime 24 following the presentation of his report. And as 25 indicated yesterday, the comments that he 5101 1 presented at this hearing are on the record. The 2 written document which he sent afterwards has some 3 contents that are additional or different to, and 4 therefore, without restarting the process, we have 5 taken the decision, for which I wish to inform you 6 at this time, that the written report will not be 7 put into the record. 8 I thank you for that. And with those 9 comments, you may begin the process of 10 cross-examination with the understanding, 11 obviously, that you may not be able to finish 12 today, but we will provide some additional time 13 when we reconvene. 14 As you indicated to us yesterday, 15 there are a number of people in your group that 16 will be involved in the cross-examination. And we 17 will insist that each one of those is not involved 18 at once, or it is an in and out, or at one point 19 it is one member cross-examining and then another 20 comes into the picture. Each will do his section 21 and that is complete. 22 MR. MAYER: No tag team. 23 THE CHAIRMAN: That is a way of 24 putting it -- I didn't want to put it that way -- 25 but the point is each one of the members of your 5102 1 group -- and you indicated there were four I 2 believe yesterday -- will make their 3 cross-examination, and you may begin the process 4 and complete it, but that is the way we will 5 proceed. 6 MS. WHELAN ENNS: I appreciate the 7 information, Mr. Chairman. Thank you. 8 I would like to ask then, again for 9 clarification, and I am just thinking about how 10 our JNFAAT questions for Manitoba Hydro were done, 11 and then also thinking about yesterday afternoon 12 where public participants -- and I am not sure, 13 whether it was a lawyer or consultant -- were 14 switching off. So I just want to ask for 15 clarification in that regard. 16 THE CHAIRMAN: We saw the beginnings 17 of that yesterday, and the group who was doing the 18 cross-examination, the person who was in charge of 19 that process did make the openings comments and 20 the closing -- not the opening comments -- the 21 opening questions and the closing questions, and I 22 allow you the same privilege, but I do not want 23 tag teaming throughout the whole process. 24 Mr. Mayer. 25 MR. MAYER: I think you made it very 5103 1 clear to us yesterday that you have four people 2 and four separate sections. So there is no need 3 to be back and forth. You have four people, four 4 separate sections, we are going to insist upon 5 hearing from you one at a time, because we did 6 find yesterday and the day before that that 7 extended the process extraordinarily long. 8 THE CHAIRMAN: Otherwise it creates 9 duplication. You go into one another's areas, and 10 then you get repetitious questions and repetitious 11 answers. 12 MS. WHELAN ENNS: I have no difficulty 13 at all abiding by this information and the 14 preference of the Commission based on what you are 15 identifying in terms of problems before, and I 16 think that probably also applies -- I have to 17 think back into March -- to the approach then that 18 Mr. Murphy and I took. So we will probably be 19 here together in terms of support, and we will try 20 to be consistent. 21 We didn't get as far yesterday as 22 identifying four areas, as such, we were providing 23 you with the names of individuals who are working 24 on EIS questions, and will take this as a 25 direction in terms of how to go forward. 5104 1 Is that satisfactory? 2 THE CHAIRMAN: Thank you. 3 MS. WHELAN ENNS: Mr. Soprovich is 4 probably going to borrow a watch so that we can 5 watch our time. Thank you. 6 May I ask, we have had our break, 7 right? 8 THE CHAIRMAN: Sorry? 9 MS. WHELAN ENNS: Has there been a 10 break this afternoon? 11 THE CHAIRMAN: No, there hasn't been 12 yet. 13 MS. WHELAN ENNS: Is there likely to 14 be? 15 THE CHAIRMAN: A very short one, just 16 for the absolute needs. 17 MS. WHELAN ENNS: Thank you. 18 Then the objective initially is to 19 work to set some context in respect to the 20 environmental statements, and then review of them 21 and questions regarding them. One of the things 22 that is high profile right now in Manitoba, but 23 not an ingredient in the filings or the 24 information to date in this room, has to do with 25 land use planning and watershed planning in 5105 1 Manitoba. So we have a preference generally -- I 2 am missing Mr. Adams at the moment, so I thought I 3 would interrupt myself and indicate that we have a 4 preference to hear from Manitoba Hydro where at 5 all possible in response to our questions. 6 MR. WOJCZYNSKI: Ed Wojczynski. I can 7 speak for the company. 8 MS. WHELAN ENNS: Thank you. 9 Does Manitoba Hydro support the 10 Government of Manitoba's stated intent to conduct 11 land use and watershed planning exercises on a 12 broad or regional basis for all future use and 13 decision making for Crown lands and waters? 14 MR. WOJCZYNSKI: Manitoba Hydro 15 generally supports all of the Government of 16 Manitoba policies and environmental strategies, 17 including the land use strategies. 18 MS. WHELAN ENNS: Thank you very much. 19 It is good to hear, we are looking forward. 20 Did Manitoba Hydro financially support 21 occupancy or traditional use studies for the First 22 Nation and Aboriginal communities impacted by the 23 Wuskwatim projects? 24 MR. WOJCZYNSKI: Could you repeat the 25 question, please? 5106 1 MS. WHELAN ENNS: Following on land 2 use planning on the broader policy scope, the 3 question is whether the utility has financially 4 supported occupancy, this Aboriginal or First 5 Nation occupancy or traditional use studies for 6 the communities impacted by the Wuskwatim 7 projects? 8 MR. WOJCZYNSKI: The community that is 9 clearly potentially the most effected by Wuskwatim 10 would be NCN, and we have certainly worked with 11 NCN and supported financially and otherwise the 12 studies that they deemed were necessary in regards 13 to Wuskwatim impacts. 14 You may want to ask Mr. Thomas, the 15 NCN representative on the panel, about that. 16 MS. WHELAN ENNS: And I may do. I 17 have one connected question, if I may. If there 18 has been that kind of support, is it called for in 19 the MIA? 20 MR. WOJCZYNSKI: The what? 21 MS. WHELAN ENNS: The implementation 22 agreement from '96? 23 MR. WOJCZYNSKI: There is a planning 24 process in there that Manitoba Hydro and NCN are 25 both committed to, and we follow that. And it 5107 1 does require us to work with the community to do 2 any studies required. And so it would have, even 3 if we weren't doing a partnership, we would have 4 been working with the community to study the 5 impacts. 6 MS. WHELAN ENNS: Thank you. If I may 7 then, I would like to in fact ask Councillor 8 Thomas essentially the same question, whether 9 there has been an identification for the need for 10 occupancy or traditional use studies for your 11 lands, for the RMA as such, whether those have 12 been undertaken, are ongoing, and whether there 13 has been Manitoba Hydro involvement? 14 MR. THOMAS: Under the terms of the 15 implementation agreement, the 1996 implementation 16 agreement, we do have the provision for a resource 17 management board that helps to look at these kind 18 of issues, and monies have been provided for 19 looking into these kind of issues, and a number of 20 people have worked on it from our community. 21 MS. WHELAN ENNS: Thank you. I heard 22 Mr. Wojcznski's comment about the primary 23 Aboriginal First Nation community in terms of 24 impacts. And there is no argument here at all on 25 that. 5108 1 The transmission segments, the three 2 of them though, certainly are also on lands 3 outside of the RMA. So I would like to ask the 4 question again in terms of if Manitoba Hydro has 5 been involved in or supported occupancy or 6 traditional use studies in these lands? 7 THE CHAIRMAN: Are you asking the same 8 question? 9 MS. WHELAN ENNS: It is the same 10 question respecting the lands impacted by the 11 transmission project outside of the NCN RMA? 12 MR. HICKS: Mr. Chairman, I can't 13 answer the question directly, and I don't know for 14 certain what Manitoba Hydro may have subsidized or 15 provided funding for in these communities 16 historically. 17 I do know that when we went into 18 particularly Cormorant and the Cormorant resource 19 management area, and into the OCN traditional use 20 area, that we talked and consulted with Mayor and 21 Council in the first case, and with Chief and 22 Council in the second case, to ask advice as to 23 how they would like us to proceed with the routing 24 process, and asked advice as to whether there were 25 ways or means of incorporating, or having them 5109 1 provide traditional knowledge to us as an assist. 2 In the case of OCN, they did in fact 3 refer us to two of their committee heads, one of 4 whom shared with us traditional use information, 5 which was part and parcel of the review process. 6 In the case of Cormorant, as I 7 understand it, Cormorant, as a co-management, or 8 as a co-management partner in the management of 9 the resource management area, is about to embark 10 on development of a plan for the RMA. So they did 11 not have readily available information for us, but 12 what they did do was they identified for us and 13 helped us to organize meetings with traditional 14 harvesters from the community, and with elders 15 from the community, and we spoke with them and 16 made ourselves reasonably comfortable that, to the 17 extent that there was traditional knowledge 18 available, that it was being brought into play in 19 the routing choices and in the assessment. 20 MS. WHELAN ENNS: Thank you. 21 MR. THOMAS: Mr. Chairman, if I may 22 provide some clarification to the answer that I 23 just provided with respect to the question of 24 whether or not Manitoba Hydro made a financial 25 contribution to land use and occupancy studies. 5110 1 We, as NCN, provided some monies for 2 that to occur, but not specifically for Wuskwatim. 3 And monies I believe were not provided by Manitoba 4 Hydro for our purposes. So I can't speak to 5 whether they did in fact provide money for 6 Wuskwatim specific looking into the land use and 7 occupancy issues. 8 MS. WHELAN ENNS: Thank you. 9 Mr. Wojcznski, I would like to ask you 10 whether I can take then from Mr. Thomas and 11 Mr. Hick's answers that is Manitoba Hydro then 12 does consider the collection of information 13 regarding traditional knowledge, occupancy use, 14 and land use history, in both the NCN RMA and the 15 lands beyond the RMA where the transmission lines 16 are, as being beneficial and helpful both to the 17 communities and to Manitoba Hydro in their 18 planning? 19 MR. WOJCZYNSKI: Manitoba Hydro 20 considers the collection of information and land 21 use and traditional knowledge useful in terms of 22 doing any planning and doing assessments. And I 23 wouldn't want to speak for the communities as to 24 whether they would find it useful or not, although 25 my guess is that they would be, but I really can't 5111 1 speak for the communities, but I can speak for 2 Manitoba Hydro. 3 MS. WHELAN ENNS: Thank you. 4 I made the comment about looking for 5 Mr. Adams, but I would like to go forward with the 6 next question, and I think best to ask Mr. Thomas 7 first. What are the archeological -- and I am not 8 asking for discreet or intellectual property 9 information here -- what are the archeological, 10 cultural, and heritage characteristics, and 11 relevance for NCN of the Partridge Crop Hill area? 12 MR. THOMAS: I will have to give you 13 an undertaking on that one. 14 MS. WHELAN ENNS: I would appreciate 15 that very much. Again, I don't have any desire to 16 go by hearsay, or conversations or information 17 that have come my way, but I am very interested in 18 that part of your RMA and your traditional 19 territory. 20 MR. THOMAS: I will say that it is a 21 significant area for NCN, but I will have to give 22 you an undertaking to provide you with the 23 specific answer that you request. 24 25 (UNDERTAKING # MH/NCN-71: Advise re 5112 1 archeological, cultural, heritage characteristics, 2 and relevance of Partridge Crop Hill area from 3 NCN's perspective) 4 5 MS. WHELAN ENNS: Again, so there is 6 no misunderstanding in terms of my earlier comment 7 to Mr. Thomas, this is not a request for, you 8 know, the degree of information that puts things 9 at risk, but rather an ability to follow up on 10 that part of the RMA. 11 MR. THOMAS: I should point out that 12 when questions of this sort require specific 13 information, we have to be protective of our 14 sacred areas, and as a result we will disclose 15 information in a general manner and not in a 16 specific manner, and I hope that it is respected 17 by all parties. 18 MS. WHELAN ENNS: Thank you, that is 19 sort of why I repeated myself, because I thought 20 it would be best for you also to put that into the 21 record. Thank you. 22 The question then I would like to 23 leave as a potential undertaking for Manitoba 24 Hydro is essentially the same question to 25 Mr. Adams. And then when we have an opportunity 5113 1 to ask him, I want to specifically ask him about 2 the session that the staff in our office had with 3 the CEO and executive staff of Manitoba Hydro in 4 January of 2002, and the questions specifically to 5 Partridge Crop Hill was part of that afternoon. 6 Thank you. 7 MR. WOJCZYNSKI: Sorry, I will take 8 that for him, and he will be here on other days. 9 This day had not originally been scheduled for us 10 to be crossed, so he had another commitment, but 11 he will be here on other days. 12 Were there two questions or were they 13 the same question? You were referring to the 14 meeting that the Canadian Nature Federation had 15 with the CEO and the executive of Manitoba Hydro, 16 and are you asking the pertinence of that meeting 17 to Partridge -- 18 MS. WHELAN ENNS: Yes, I combined, and 19 excuse me I was off on terminology, I was doing 20 two things. I am hoping for and hearing an 21 undertaking for the importance of the Partridge 22 Crop Hill area. And then also indicating that 23 when Mr. Adams is available, I would like to ask 24 questions specific to the January 2002 session 25 with the CEO and the executive of the corporation 5114 1 and our staff. 2 MR. WOJCZYNSKI: So the undertaking 3 you are asking of Manitoba Hydro -- 4 MS. WHELAN ENNS: Is Partridge Crop 5 Hill at this time. 6 MR. WOJCZNSKI: Is that not the same 7 undertaking that Mr. Thomas has just given? 8 Because we have a joint environmental assessment 9 here. 10 MS. WHELAN ENNS: I would expect, and 11 I am not trying to duplicate, but I would expect 12 that the importance of this site in the RMA and 13 the traditional lands of NCN, the importance to 14 them would be specific. What I am asking Manitoba 15 Hydro to do is to, in fact, within the context of 16 all of the work that you did to produce the EIS, 17 and the importance overall in terms of protected 18 areas in Manitoba, and the discussions that day, 19 to augment or provide the second half of the 20 answer? 21 MR. WOJCZYNSKI: Let me say at this 22 point that we have one EIS, and that this was 23 produced jointly, as you are aware. And I think 24 that our conclusion as to the importance of a 25 particular feature like that would not be much 5115 1 different, if anything, from NCN in this case. 2 But we will take the undertaking. 3 MS. WHELAN ENNS: Thank you. 4 5 (UNDERTAKING # MH/NCN-72: Advise re 6 archeological, cultural, heritage characteristics, 7 and relevance of Partridge Crop Hill area from 8 Manitoba Hydro's perspective) 9 10 MR. HICKS: Mr. Chairman, if it would 11 help, I can advise that although I am not familiar 12 with the details of the significance of Partridge 13 Crop Hill culturally, I can certainly advise that 14 NCN members counselled us to move our routes as 15 far away as possible, and in that sense there is 16 recognition of the significance of the feature. 17 MR. DAVIES: Similarly, in the 18 generation volume, the importance of Partridge 19 Crop Hill was noted in the resource use section, 20 and the importance of Partridge Crop Hill to the 21 resources, the animals that are there was also 22 noted. 23 MS. WHELAN ENNS: Thank you both. 24 I would like to ask some questions 25 now -- to set the context, some of them are for 5116 1 the benefit of all of us who have been working on 2 this for a long time, and then specifically for 3 the Commissioners, in terms of environmental 4 assessment. And some of this is I think quick, 5 and historical, and easy to answer. 6 Was there an environmental assessment 7 or comprehensive study done prior to the building 8 of the Churchill River Diversion? 9 MR. WOJCZYNSKI: Ed Wojczynski, 10 Manitoba Hydro. There was a study done on the 11 Churchill River Diversion that was started prior 12 to the Churchill River Diversion being complete, 13 and that was the Burntwood Nelson/Churchill River 14 study board report that we have had some 15 discussion of over the last couple of weeks. 16 MS. WHELAN ENNS: Because standards, 17 legislation requirements were different then, I 18 need to ask you then whether those materials are 19 publicly available? 20 MR. WOJCZYNSKI: Well -- 21 MR. DAVIES: Stuart Davies speaking. 22 The materials are all publicly available. It is a 23 multi-volume set that was published in 1975, and 24 all of the supporting documents that are 25 referenced in that set are also available. The 5117 1 majority of them are either Government of Canada 2 or Manitoba Government documents. 3 MS. WHELAN ENNS: Thank you. I heard 4 Mr. Wojcznski indicate that the study was during 5 the construction of the CRD. Did it start during 6 construction? 7 MR. WOJCZYNSKI: My understanding is 8 that it started in 1970, so it would have captured 9 impacts before there was impoundment. 10 MS. WHELAN ENNS: Thank you. Then the 11 same question with respect to Lake Winnipeg 12 Regulation, was there is an environmental 13 assessment or comprehensive study done prior to 14 the Lake Winnipeg Regulation? 15 MR. WOJCZNSKI: It would be the same 16 answer. 17 MS. WHELAN ENNS: Did Manitoba Hydro 18 then undertake an environmental assessment or 19 comprehensive study prior to the building of the 20 Limestone generation project? 21 MR. WOJCZYNSKI: I would have to go 22 back to -- I am not familiar with the details of 23 it, but there was a process earlier where 24 Limestone was approved, but I am not familiar with 25 the details of that. Mr. Rempel may be able to 5118 1 provide some information. 2 MR. REMPEL: Yes, I can add something 3 to that, Ms. Enns. When Limestone was resumed 4 there had already been construction on the 5 cofferdam, so a part of the construction 6 components were in place. I was with a firm that 7 was engaged to do what we called a modified impact 8 assessment. In that there were no guidelines at 9 the time, I believe it was under the MEARA 10 process, and a study was done. It would not be as 11 comprehensive as today's standards would indicate 12 for a comprehensive EIA, but an environmental 13 assessment was done, and monitoring programs were 14 identified and were carried out. I believe the 15 statement was that studies were reviewed by either 16 the Provincial planning board, and approvals were 17 granted accordingly. 18 MS. WHELAN ENNS: Thank you. Was your 19 reference to the inter-departmental planning 20 board? 21 MR. REMPEL: Yes, that's right. 22 MS. WHELAN ENNS: Thank you. The 23 reasoning, aside from just setting a sequence here 24 for these questions, is because of the very real 25 challenge in terms of accessing these kinds of 5119 1 records when we were all working on the EIS 2 guidelines for the Wuskwatim projects. And I am 3 hopeful that access to the records and the 4 sequence of technical information on hydro 5 developments in Manitoba will just basically keep 6 on improving. So that is the reasoning for asking 7 that. 8 We also currently have a challenge on 9 the Conawapa papers whether they are going to be 10 stored or kept by the Province. 11 MR. DAVIES: Just a piece of 12 information. The Freshwater Institute does have 13 the largest library for freshwater issues in 14 Canada. It is located at the Freshwater 15 Institute, and it does have all virtually all of 16 the information that was collected from the 1970 17 to 1975 study board reports, plus all of the 18 research that was conducted for South Indian Lake. 19 MS. WHELAN ENNS: I appreciate the 20 information. It may be that our question asking 21 of DFO hasn't been adequate, that we haven't known 22 the system well enough in terms of the historical 23 materials. Thank you. 24 THE CHAIRMAN: Ms. Whelan Enns, I 25 notice that you were just thinking for a moment in 5120 1 regards to your next question, and the question -- 2 we did indicate we would take a small break, 3 indeed a small one in view of the fact that we are 4 going to adjourn today at 4:30 at the latest. We 5 will take a ten minute break, but we will be 6 beginning by 3:30 sharp. 7 (PROCEEDINGS RECESSED AT 3:15 P.M. AND 8 RECONVENED AT 3:30 P.M.) 9 10 THE CHAIRMAN: Ladies and gentlemen, 11 we will continue at this time. Carry on, 12 Ms. Whelan Enns. 13 MS. WHELAN ENNS: Thank you, 14 Mr. Chairman. 15 Again, Mr. Wojczynski, a quick 16 sequence of questions that should be fairly quick 17 and straightforward -- not to provide an answer or 18 anything. Does Manitoba Hydro agree with the 19 statement that the CRD has had and is having 20 significant environmental impact? 21 MR. WOJCZYNSKI: Yes. 22 MS. WHELAN ENNS: Thank you. 23 MR. WOJCZYNSKI: I'm trying to figure 24 out why it is being asked again, if there is some 25 change here. There has been major impacts before, 5121 1 and many of the impacts, although not all of the 2 impacts, are still there. 3 MS. WHELAN ENNS: Thank you. Then 4 does Manitoba Hydro agree with the statement that 5 the impacts on ongoing and continue? 6 MR. WOJCZYNSKI: Some of the impacts 7 are ongoing. 8 MS. WHELAN ENNS: Thank you. Does 9 Manitoba Hydro agree then that the Lake Winnipeg 10 Regulation had, and continues to cause 11 environmental, significant environmental impacts? 12 MR. WOJCZYNSKI: Yes, with the small 13 qualifier that when you say continue to have, it 14 is again some, not all. 15 MS. WHELAN ENNS: Thank you. Then 16 would the statement, would Manitoba Hydro agree 17 with the statement that many Aboriginal and First 18 Nation communities were negatively affected by the 19 CRD and the LWR? 20 MR. WOJCZYNSKI: Yes. 21 MS. WHELAN ENNS: Would you agree then 22 that these effects continue today? 23 MR. WOJCZYNSKI: With the same proviso 24 of some, not all. 25 MS. WHELAN ENNS: Thank you. Did 5122 1 Manitoba Hydro accurately predict the 2 environmental impacts from the construction of the 3 CRD? 4 MR. WOJCZYNSKI: I don't think that 5 I'm in a good position to respond to that. I 6 believe there are others in the panel who are in a 7 better position, and there was some discussion of 8 that the other day. Rather than me try and 9 paraphrase what others are more knowledgeable on, 10 if you -- 11 MR. DAVIES: I had answered that the 12 other day specifically in relation to Southern 13 Indian Lake, that there was a report done by 14 Dr. Hecky, who actually is an advisor to the CEC. 15 He had taken a look at the predictions for 16 Southern Indian Lake, and stated which ones were 17 correct and which ones weren't. And what they 18 found was that for water quality and what we call 19 lower trophic levels, all the bugs and plankton 20 that are in the water, the predictions were 21 relatively accurate, but for the fish populations 22 they weren't. 23 MS. WHELAN ENNS: Thank you. 24 Mr. Wojczynski, to the best of your 25 knowledge, were the potentially affected 5123 1 Aboriginal and First Nation communities provided 2 with accurate information prior to the 3 construction of the CRD? 4 MR. WOJCZYNSKI: My understanding is 5 that information was provided to the degree 6 information was available. 7 MS. WHELAN ENNS: Thank you. Again, 8 to the best of your knowledge, did Manitoba Hydro 9 accurately predict the environmental impacts from 10 the construction of the LWR? 11 MR. WOJCZYNSKI: I think we will -- 12 MR. DAVIES: Again, I have to refer in 13 that case to the Lake Winnipeg/Churchill/Nelson 14 River study board reports. Again, mercury was one 15 that was missed. It wasn't as much of an issue 16 with the Lake Winnipeg Regulation as it obviously 17 was with Churchill River Diversion. 18 In some cases the predictions were 19 right, in other cases they weren't. To the best 20 of my knowledge, there hasn't been a summary that 21 has looked at all of them together, but there has 22 been a number of individual reports that have been 23 done, such as the post project review that was 24 done in 1986, I believe, for the Cross Lake First 25 Nation. It was the Nelson River study board 5124 1 report, or Nelson River group report, I believe it 2 was 1986, it was a three volume set that looked at 3 everything from resource harvesting to the 4 individual, to the animals themselves, and 5 cultural effects on the communities. There was 6 also additional work that was done in relation to 7 the effects on the Split Lake area, Tataskweyak 8 Cree Nation. They used both traditional knowledge 9 and science to take a post project look, an 10 assessment of the Churchill River Diversion and 11 Lake Winnipeg Regulation on their resource 12 management area. 13 MS. WHELAN ENNS: You would certainly 14 agree that the reports that you are describing 15 have been done, that all of that technical work 16 has certainly been needed. And the reason for 17 this, you know, setting the context if you will in 18 terms of this set of questions has to do with, of 19 course, what was predicted in terms of 20 environmental impacts, what communities knew or 21 were provided in information beforehand, and what 22 we know now in terms of impacts. 23 MR. DAVIES: I also should have 24 mentioned again the Federal ecological monitoring 25 program, the ecological monitoring program, the 5125 1 FEMP studies did take a look at the system as a 2 whole, and they had specific areas that they 3 covered, and we had spoken about that earlier. 4 MS. WHELAN ENNS: I would like to ask 5 then, starting perhaps with Mr. Wojczynski, in 6 terms of the timing of the reports that are being 7 cited, and the information and the learning that 8 comes from this kind of technical work, whether 9 then certain of these reports were helpful in 10 terms of anticipating impacts from Limestone, 11 moving forward in time, in terms of providing 12 affected communities information in advance then 13 of the Limestone project? 14 MR. WOJCZYNSKI: I can, on behalf of 15 Manitoba Hydro, provide a high level overview 16 answer to that. In terms of specific learnings in 17 the various technical areas, I would leave that to 18 the technical experts. I don't think this is any 19 question whatsoever, and I'm sure that the 20 Canadian Nature Federation and Manitoba Wildlands 21 would agree with this, that over time, let's say 22 the last 30 or 40 years, that our societies, and 23 I'm including in society all of us, the technical 24 people, the lay people, both, that our societies' 25 understanding, and amount of information on the 5126 1 impacts of Hydro projects, thermal projects, 2 roads, everything, has increased. And so the work 3 done on previous projects have all added to a 4 growing body of knowledge and a growing body of 5 methodology, plus people have had the direct 6 experience, and on top of that, increased use of 7 traditional knowledge. So we have much better 8 information today than we did 10, 20, 30, 40 years 9 ago. And that is certainly helping us as a 10 developer, it certainly helps communities when 11 they are trying to understand what is going on, 12 and the rest of society. 13 MR. DAVIES: This is a little 14 different because it was done after mercury was 15 known, but there was a document that was put out 16 called a "Retrospective Analysis of a Native 17 Information Program" that provided a very good 18 insight on the effectiveness of information 19 programs in northern communities. It was done 20 through the Federal Ecological Monitoring Program, 21 I don't have the date. I think it was around 22 1986, but I'm not sure. 23 MS. WHELAN ENNS: Thank you. What I'm 24 hearing is that the intent and practice of 25 Manitoba Hydro has been then improvement in 5127 1 regards to your environmental assessment 2 practices, studies, and technical work in advance 3 of a project for development, and also then study 4 improvement in terms of information to affected 5 communities, having gone back 30 years and come 6 forward; is that correct? 7 MR. WOJCZYNSKI: Yes. 8 MS. WHELAN ENNS: How then, 9 Mr. Wojcznski, would you assess Manitoba Hydro's 10 track record in these two areas, that is 11 environmental assessment and comprehensive study 12 work in advance of a project, and the 13 appropriateness and usefulness then of information 14 to both potentially and affected communities 15 before a project? 16 MR. WOJCZYNSKI: Again, I would want 17 to give a high level of corporate answer on that, 18 because I think that is what you are asking me as 19 Manitoba Hydro right now, rather than a technical 20 answer. I think that in those two kind of general 21 areas, what was done 30, 40 years ago by Manitoba 22 Hydro was in keeping with the tenor of the times. 23 And the study that was done at the time, the 24 Burntwood/Nelson/Churchill River study board 25 report was one that was, as I think I said 5128 1 earlier, a leading edge study which was consistent 2 with, generally with the methodologies, the state 3 of the art of the methodologies at the time. And 4 that obviously is much different, we have evolved 5 much since then. So what was leading edge then is 6 not probably considered acceptable today. But 7 what was done then was consistent with the values 8 and approaches of society. 9 And in terms of working with affected 10 communities, as Mr. Adams had indicated in his 11 undertaking last week, going back earlier than 30, 12 40 years ago, you go back to what was done by all 13 developers, not just Manitoba Hydro, there was 14 very little, if any, consultation or interaction 15 with the local people. I'm going back 100 years 16 even. So when we did our projects 30, 40 years 17 ago, what we were doing then was consistent with 18 the general expectations in society at the time, 19 and that has evolved, and so we are doing much 20 more today. 21 So I would say that what we are doing 22 was consistent with the expectations of society at 23 that time. 24 MS. WHELAN ENNS: Thank you very much. 25 I believe I heard you use the term "state of the 5129 1 art" and also make a reference to "leading edge," 2 again in the historical context? 3 MR. WOJCZYNSKI: Yes. 4 MS. WHELAN ENNS: Are you telling us 5 here today that the preparation technical work, 6 design EIS, and so on for the Wuskwatim projects 7 is state of the art today and leading edge today? 8 MR. WOJCZYNSKI: I would say it is a 9 state of the art today, and I would look to our 10 technical experts to provide a more technical 11 statement on that. But certainly from a corporate 12 point of view, that would be our understanding. 13 We are quite proud of what we have 14 done in the project. I'm less familiar with the 15 pure technical parts, but you are asking about two 16 aspects to this one -- was the assessment per se, 17 which I view like from a scientific point of view. 18 The others you are referring to the interaction 19 with communities with people? 20 MS. WHELAN ENNS: Yes. 21 MR. WOJCZYNSKI: I think I'm in a 22 better position to speak on the second one. And 23 that is that we as a corporation have gone to 24 great lengths to think about what is appropriate. 25 We took a lot of effort to look at what is done 5130 1 elsewhere, and we said, well, we want to do even 2 more. So in terms of consultation, in terms of 3 working with affected communities, in terms of 4 providing information and resources to potentially 5 affected communities, whether we had agreements 6 with them or not, we went to great lengths, and I 7 feel quite comfortable saying that we feel that 8 that is leading edge. But I'm not a technical 9 expert, so I don't want to speak on the specifics, 10 but we are quite proud of the team that NCN and 11 Manitoba Hydro have working for us in that area. 12 MS. WHELAN ENNS: Thank you. Perhaps 13 then, if I may, I will ask Mr. Hicks and 14 Mr. Davies the question about the EIS and the 15 technical work on the Wuskwatim projects, and 16 whether it is state of the art today, leading edge 17 today, and based on today's knowledge, technically 18 and scientifically? 19 MR. DAVIES: I believe that the EIS is 20 state of the art, particularly in regards to the 21 incorporation of traditional knowledge with 22 science. I feel that the amount of information 23 that was collected from the residents of Nelson 24 House, the NCN members, the resource harvesters, 25 and the elders, and the incorporation of that 5131 1 information into the EIS was truly state of the 2 art. 3 MS. WHELAN ENNS: Thank you. 4 MR. HICKS: From the transmission 5 perspective, I have absolutely no doubt that on 6 the consultation side that we are state of the art 7 and leading edge. I have spoken to colleagues 8 elsewhere, and I'm very comfortable that the 9 effort that went into Wuskwatim is as great or 10 greater than any other project that I'm familiar 11 with. 12 In terms of the research and the 13 specialist experience that goes into the 14 assessment work, I'm comfortable that our 15 specialists are all well qualified, keep 16 themselves up-to-date in the field. Although I 17 can't testify specifically to the quality of their 18 effort in a particular discipline, I'm certainly 19 comfortable that they are familiar with state of 20 the art and best practice, and that they are 21 applying that wherever and whenever they can. 22 Finally, I would also say that I have 23 been working with Hydro since '86 on a succession 24 of transmission projects, each one, no question, 25 better than the last in terms of the attention, 5132 1 the quality of the work, the quality of the 2 research that went in. 3 Finally I would say over and above its 4 involvement in assessment practice, Manitoba Hydro 5 has, in my view, a fine record of support for 6 research in areas that are of generic interest to 7 the kinds of projects that we are involved with. 8 Hydro, for example, is one of the principal 9 funders I believe of caribou research in Manitoba. 10 MS. WHELAN ENNS: Thank you very much. 11 If I may then, I would like to ask -- probably 12 best Mr. Hicks and Mr. Davies -- when the first 13 technical, biophysical and scientific work started 14 on Wuskwatim? Is it five years ago, six years 15 ago, three years ago? 16 MR. DAVIES: In regards to the 17 generating station, the first work was conducted 18 in 1998 and is continuing until today. Additional 19 information is still being collected to further 20 strengthen the baseline information. And again 21 that is speaking only for a science component. We 22 did have the longer term view that was provided by 23 the NCN elders and members. 24 MS. WHELAN ENNS: Thank you. 25 MR. HICKS: In December of 1999, I 5133 1 believe. 2 MS. WHELAN ENNS: Thank you. I have, 3 well, one microphone to deal with and another one 4 to look through, but I would like to ask 5 Councillor Thomas some questions next. 6 MR. THOMAS: Before you ask your 7 question, I provided you with an undertaking and I 8 would like to satisfy that, if I may. 9 MS. WHELAN ENNS: Certainly. 10 MR. THOMAS: With regard to the 11 Partridge Crop Hill, the significance of it, it 12 has some spiritual and other significances for 13 NCN. It is an area where the Partridge Crop 14 caribou herd situates, and this area also has 15 areas where special ceremonies were held and the 16 locations of those areas were only known to those 17 who perform the ceremonies. It was a time when 18 our ceremonies were outlawed and special places 19 had to be found by our people to continue 20 performing ceremonies. Plus the area has 21 endearing features, it contains a lot of Jack Pine 22 in there that are of high value to the community, 23 and Parks Initiative Manitoba provided an option 24 for NCN as to what area to protect, and Partridge 25 Crop Hill was chosen over Amisk Park. Not only 5134 1 that, but there is traditional harvesting and 2 gathering of cultural items for ceremonies. So 3 that is basically the significance of that 4 particular area to NCN. 5 MS. WHELAN ENNS: Thank you, 6 Mr. Thomas. Yes, Mr. Wojcznski. 7 MR. WOJCZYNSKI: You had also on the 8 same topic asked me for an undertaking, and if you 9 like, I could just perhaps supplement what 10 Councillor Thomas said. 11 MS. WHELAN ENNS: Certainly. 12 MR. WOJCZYNSKI: As I indicated at the 13 time, we had one EIS, and the issue of Partridge 14 Crop Hill was a topic of study, in a good part 15 based on the traditional knowledge and the 16 expressions of interest and concern from NCN 17 members, and with other information as well. So 18 it was viewed as an important area; caribou being 19 one aspect, there are other aspects. So we are 20 supportive, and recognize and respect what NCN had 21 brought forward. And so that is one of the 22 reasons we were supportive and concurred with the 23 project itself having the transmission routed away 24 from that area. And that is on the record 25 already. Thank you. 5135 1 MS. WHELAN ENNS: Thank you. I had 2 the opportunity at the end of one of the days of 3 hearings in March, here in the hotel, to thank 4 Chief Primrose for his assistance on the subject 5 of Amisk. I am trying to think -- spring a year 6 ago -- so the conversation in person when I asked 7 him for his help was in January of 2002. And 8 Nelson House First Nation has, despite 9 understandable and legitimate concerns about how 10 designations were made in 1995, has continued to 11 support the protection of Amisk, including its 12 renewal last year. So, again, just basically 13 stating that as fact so it is in the record. 14 Now, Partridge Crop Hill and Amisk are 15 different geophysically, geologically, habitat 16 wise, and so on. I thank Councillor Thomas for 17 his answers on the undertaking. Everything you 18 were saying fits with my conversations with elders 19 from your community. It is an extremely important 20 location. And then the conversations with the 21 Parks Branch and Manitoba Conservation had had in 22 terms of also doing Partridge Crop Hill, can you 23 tell me then whether Nelson House First Nation has 24 taken any further steps on this, as in the 25 protection of Partridge Crop Hill from 5136 1 development? 2 MR. THOMAS: Right now there is no 3 development activity occurring. The transmission 4 line itself for the Wuskwatim project is way far 5 away from there. The generating station, as was 6 indicated, is nowhere near that site, and it is 7 not expected that there is going to be any impacts 8 on that area with regard to both generation and 9 transmission. 10 We, as NCN, of course are concerned 11 about our resource management area. And we, as 12 I've indicated previously, have an access 13 management plan in place to address issues of 14 concern related to access. But in addition to 15 that, the 1996 agreement provides for us to 16 develop plans to protect our interests as NCN 17 people within our resource management area. And 18 Partridge Crop Hill is a part of that scenario. 19 MS. WHELAN ENNS: Thank you very much. 20 We would like nothing better than to be able to 21 take the step to congratulate Nelson House First 22 Nation on the next steps in respect to Partridge 23 Crop Hill. Hence the question -- the opportunity 24 to congratulate First Nations in respect to 25 protected land in Manitoba is something we always 5137 1 look for, which is also why I wanted to be 2 specific about the help in relation to Amisk, 3 which is -- let's think about the patience 4 involved in this -- it is over almost a decade 5 now. So thank you. 6 I would like to ask then Councillor 7 Thomas when NCN began investigating the prospect 8 of new hydroelectric development in your 9 traditional territory? 10 MR. THOMAS: What is that? 11 MS. WHELAN ENNS: Sorry, a parallel 12 question in terms of when the biophysical and 13 technical and scientific work began, I was 14 basically asking you then when Nelson House First 15 Nation first began to investigate the possibility, 16 work with the possibility in terms of 17 hydroelectric development, new hydroelectric 18 development in your traditional territory? 19 MR. THOMAS: We have a provision in 20 our 1996 agreement that foresaw the possibility of 21 potential development in our traditional 22 territory. Article 8 provides that there be 23 consultation and obtaining consent from our people 24 prior to the start of any construction activity 25 and, of course, dealing with the compensation 5138 1 issues, as has been pointed out. So we've long 2 had it on our radar screen to make sure that we 3 look at all of our areas. That is part of the 4 reason why we have a resource management board 5 under, I believe it is article 6 of our agreement, 6 to look at those kind of concerns. 7 THE CHAIRMAN: I would remind 8 Councillor Thomas that the question was when. 9 MR. THOMAS: Like I said, we have all 10 looked at it -- 11 THE CHAIRMAN: Yes, I heard the 12 speech. 13 MS. WHELAN ENNS: Since '96. 14 MR. THOMAS: It was an answer not a 15 speech. But yes, prior to, even prior to 1996 we 16 looked at it, but 1996 officially ratified 17 processes to be followed. 18 MS. WHELAN ENNS: Did NCN then, before 19 the MIA was signed or -- 20 MR. THOMAS: We don't call it the MIA, 21 we call it the Northern Flood Implementation 22 Agreement. 23 MS. WHELAN ENNS: Maybe I was trying 24 to shorten it too much. 25 Did NCN then, before those two 5139 1 undertakings, Wuskwatim that we are talking about 2 now and the new implementation agreement, oppose 3 new hydroelectric development in your traditional 4 territory? 5 MR. THOMAS: Did we oppose it? 6 MS. WHELAN ENNS: Yes? 7 MR. THOMAS: In the way the previous 8 projects were done, certainly we opposed that kind 9 of approach. That is the reason why we negotiated 10 for an article 8 process, because we wanted to 11 change how development occurred in our territory. 12 So we are not necessarily opposed to development, 13 but we want to make sure that we are a part of any 14 process for planning and developing our 15 traditional territory for a variety of purposes, 16 including hydro development. 17 MS. WHELAN ENNS: Has NCN been fully 18 compensated for impacts from past hydroelectric 19 projects? 20 MR. THOMAS: We have an agreement, 21 1996 implementation agreement, that provides for 22 financial compensation to my people for the 23 Churchill River Diversion project impacts. We 24 have had some land accorded to us for certain 25 amounts that have been impacted. So from that 5140 1 perspective, we have been compensated. But, 2 again, there are provisions in the agreement that 3 allow for certain things that may not necessarily 4 have been foreseen, they are unforeseen. And so 5 when issues like that do come about, there is a 6 process in place for compensation issues. 7 MS. WHELAN ENNS: Thank you very much. 8 I would like now to ask Mr. Wojcznski, 9 who defined the local region for the Wuskwatim 10 transmission project and the Wuskwatim generation 11 project? 12 MR. WOJCZYNSKI: I think that it would 13 be more appropriate for each of the leads to 14 answer that, because that was something that was 15 done as part of team effort and was not something 16 that Manitoba Hydro dictated. 17 MR. DAVIES: Study areas were put 18 together by the study team itself, the biologists 19 and scientists that were working on it, and it was 20 based on the information and guidance provided in 21 the CEAA practitioners guide, specifically -- I 22 can read it to you if you want? 23 MS. WHELAN ENNS: No. 24 MR. DAVIES: I am sure you are 25 familiar with it. 5141 1 MS. WHELAN ENNS: Yes, I am aware of 2 the outcome. 3 MR. DAVIES: That was used as the 4 guide to assist us in establishing the boundaries. 5 MS. WHELAN ENNS: And I'm aware that 6 those steps were taken. What I'm asking the 7 question about is then, when the final decision 8 was made in terms of the boundary for each of the 9 Wuskwatim projects, who made the final 10 determination? Surely somebody, maybe a 11 combination then in terms of the leadership of NCN 12 and Manitoba Hydro said yes? 13 MR. REMPEL: Actually, the study area 14 varied with a different environmental component, 15 so it was an ongoing process. I think the 16 guidelines indicated that we would define study 17 areas for the various components. We did this as 18 we went along. And in some cases the study area 19 for a particular VEC changed as it went through 20 the process. So there wasn't a rigid study area 21 defined. It was an ongoing process and it varied 22 with different environmental components. And as 23 to who did it, it was an environmental management 24 team in consultation with the two proponents. 25 MS. WHELAN ENNS: Thank you very much. 5142 1 I would like to ask Mr. Wojcznski then 2 whether Manitoba Hydro has received any comments 3 or concerns regarding the definition of the 4 project regions during the review process? 5 MR. REMPEL: Excuse me, I think I can 6 respond to it in terms of, we had questions during 7 the IR process, I believe we have had some 8 questions here during this review process that we 9 are undertaking here now, and we have responded to 10 those questions. So, yes, there were questions 11 and they have been responded to. 12 MS. WHELAN ENNS: The system of 13 natural regions in Manitoba, as in the Manitoba 14 Government system of natural regions, was 15 thoroughly reviewed approximately a decade ago, 16 updated in a variety of ways, compared to 17 Environment Canada's eco-district and eco-region 18 system nationally, and then of course within the 19 boundaries of Manitoba. Our organization has 20 asked a variety of questions also through the 21 review process regarding the definition of these 22 project regions. I would appreciate then hearing 23 why we have not seen sufficient Manitoba natural 24 region information with the definition of your 25 project regions? 5143 1 MR. REMPEL: We are struggling with a 2 response, Ms. Enns, in terms of being more 3 specific. Could you explain your question a bit 4 further so we can -- were you talking about the 5 transmission line, were you talking about the 6 generation station? 7 MS. WHELAN ENNS: I'm trying to 8 consistently ask questions about both. If I'm 9 just asking a question about the generation 10 station, or just the transmission system for 11 Wuskwatim, I will certainly try to specify. And I 12 was also trying to avoid what is a concern to the 13 panel, speeches, you know, in terms of too much 14 front end information. 15 So we have a system of natural regions 16 for climate, soil, geology, habitat for Manitoba. 17 They were reviewed and updated very thoroughly ten 18 years ago. They were compared to and match and 19 fit the Environment Canada eco-regions and 20 eco-district system. Some of you, of course, 21 would be very used to working with them in respect 22 to forestry. 23 The question essentially is -- and I 24 will try a front end question instead -- were the 25 natural regions within and adjacent to these 5144 1 project regions that you defined taken into 2 account and used in the EIS? 3 MR. REMPEL: It is my understanding, 4 with respect, that these questions were asked in 5 the IR process, and I think we responded to the 6 best of our ability, and indicated that we had 7 considered those features. I think you are saying 8 that you weren't satisfied with those responses, 9 but I believe those questions were answered. Did 10 you not acknowledge that you had asked these 11 questions earlier? 12 MS. WHELAN ENNS: There are 13 interrogatories in this area, and we are returning 14 to it, yes. 15 It is usual over the last 13 years or 16 so in Manitoba for the natural region system to be 17 used in the application and the EIS work for a 18 class 2 or class 3 development, acknowledging of 19 course that there has not been a decision or EIS 20 for a generation station in the province for a 21 while. So I will take the point and go on. 22 I don't believe this is in the EIS, 23 I'm open to correction, but I'm asking a question 24 now about -- and we have had a lot of information 25 and a lot of very thorough discussion about the 5145 1 project regions, and very specific to the NCN RMA. 2 So this is a question then about the land quantum 3 in the project regions outside the NCN RMA. 4 MR. DAVIES: Davies speaking. The 5 practitioner's guide does recommend a bottoms up 6 approach, what we described as the tiered 7 approach, and we have reviewed the various areas 8 that were used for the region and subregion, and 9 the areas of impact directly at the project site. 10 One of the dangers in taking an area 11 too large is that you end up masking the 12 significance of the impacts. The larger the area, 13 the less the percent of effect is. So we looked 14 at areas that, first of all, covered the area of 15 impact, and then we went up larger into various 16 regions, buffer zones, and then to the subregion. 17 And then for animals that used a larger region, a 18 larger area, we selected the region for things 19 like woodland caribou. 20 MS. WHELAN ENNS: Yes, using an 21 umbrella species? 22 MR. DAVIES: That's right. Again, the 23 danger with using a larger area is that you do 24 minimize the impact by doing that. 25 MS. WHELAN ENNS: Thank you. 5146 1 Again, we don't need a number at the 2 moment, but I think, given how much question and 3 exchange of information there has been specific to 4 the NCN RMA, that it would be helpful to have a 5 number in terms of the land quantum in the project 6 regions that are outside the RMA? 7 MR. DAVIES: The total area of the 8 region is about 25,000 square kilometres, and the 9 subregion is about 3,350 for the generation 10 component. 11 MR. HICKS: In the case of the 12 transmission studies, the area for comparison 13 purposes on the ecological work was I believe 14 44,000 square kilometres. That is, again, that is 15 from memory. It is stipulated in appendix F of 16 volume 1 of the transmission EIS. 17 MS. WHELAN ENNS: Thank you very much. 18 Looking at the time, I have two more 19 questions in the material that I have in front of 20 me left, and then we will have some questions on 21 the environmental protection plan. 22 I believe then that Mr. Wojcznski can 23 determine who is best to answer. Wanting then the 24 information in the record, and together in the 25 same place, we have trapline districts and 5147 1 traplines affected by the Wuskwatim projects and 2 the project regions as defined. We would like to 3 know then how many trapline districts are in any 4 way impacted? And I believe that the EIS 5 identifies how many traplines, I believe the 6 number is 60 or 61? 7 MR. HICKS: Bear with me for a moment 8 and I will find that number. 9 MS. WHELAN ENNS: Perhaps we could ask 10 Mr. Thomas another question then in the meantime. 11 This is somewhat similar to my request 12 to have the opportunity to ask Mr. Adams some 13 questions about a meeting in January, 2002. I 14 would like to ask Mr. Thomas if he remembers the 15 session in the basement boardroom at the Manitoba 16 Hydro headquarters on Taylor in June of 2002? 17 MR. THOMAS: There have been so many 18 countless meetings, but I do believe there was a 19 meeting with ENGOs at that time. Is that the one 20 that you are talking about? 21 MS. WHELAN ENNS: Yes. Thank you. 22 This was a meeting requested over about an eight 23 month period by environmental organizations and 24 certain First Nation citizen or individual 25 participants to in fact have an opportunity to 5148 1 talk to Nelson House First Nation? 2 MR. THOMAS: Yes, I remember the elder 3 Caroline Bruyere and a person by the name of 4 Raven, I believe. 5 MS. WHELAN ENNS: Gary Raven, yes. 6 MR. THOMAS: And Manitoba Hydro and 7 NCN. 8 MS. WHELAN ENNS: Yes. Again the 9 query from our direction of you is fairly basic 10 and that is, do you remember the conversation you 11 and I had that day regarding protected areas? 12 MR. THOMAS: Not specifically. I have 13 had so many conversations with so many people over 14 a long period of time. I can't remember each and 15 every one of them. 16 MS. WHELAN ENNS: Don't worry, I'm not 17 going to take insult at all, but feel that it is 18 somewhat relevant for the panel to know that that 19 session took place and that the environmental 20 organizations were extremely interested and wanted 21 to in fact have the opportunity to understand the 22 approach that NCN was taking, including 23 consultations. From a point of view of our 24 mandate, I was there specifically to have a couple 25 of minutes to talk to yourself as a representative 5149 1 of NCN in respect to the potential for more 2 protected lands in your RMA. So, essentially I 3 was asking you what else are you going to do, and 4 hope it is soon, and I want to acknowledge your 5 First Nation in terms of protected lands. My 6 recall of the conversation of that day. 7 MR. THOMAS: Is that a question? 8 MS. WHELAN ENNS: No. I will stop. 9 How are we doing, Mr. Hicks? 10 MR. HICKS: I'm scrambling a bit here. 11 I do have this information. I'm having trouble 12 locating it. There were 5 trapline districts 13 crossed, as I recall. I can tell you that what we 14 did was as we identified alternative routes, we 15 looked at the boundaries and ensured that our 16 mailing list was adjusted to include each and 17 every trapper or trapline affected by the 18 alternative routes, and then as we proceeded 19 through a preference we repeated the same process 20 and adjusted. So what we have got is a 21 circumstance where any trapline that is crossed by 22 either one of the alternative routes initially or 23 the proposed routes later on has been a matter of 24 contact with the individual trapper. I'm now 25 paused a note that says the total number of 5150 1 registered traplines crossed by the proposed 2 routes is 29. 3 MS. WHELAN ENNS: Thank you for the 4 correction on the number. You were then, and 5 again from Mr. Wojczynski to judge the best source 6 of answer, you were then clearly able to obtain 7 the mailing list for these trappers? 8 MR. HICKS: The mailing list is 9 maintained by the Province of Manitoba and we 10 obtained it from them, yes. 11 MS. WHELAN ENNS: Thank you very much. 12 There is, of course, as we all know in terms of 13 concerns, and I cannot speak for any community or 14 trapper, concerns about consultation and standards 15 not having been met by putting something in the 16 mail. So I would like to ask Mr. Wojczynski what 17 other steps were taken in terms of contacting 18 these trappers? 19 MR. HICKS: I think I should probably 20 answer this question. We have additional 21 information. We don't I believe have it ready for 22 presentation this afternoon. But we have some 23 mapping of the extent of consultation, meetings 24 letter contact, et cetera, with each of the 25 trappers in each of the traplines affected here. 5151 1 The process, as I said, was initially mailings but 2 the mailings were also followed up by meetings 3 with trappers and resource harvesters in each of 4 the communities, and asking their advice as to who 5 we should be talking to. None of our open houses 6 are closed. They are inclusive in the sense that 7 they are as widely advertised as we can make them 8 in case of both Cormorant and OCN and certainly 9 with our co-proponent NCN, community consultants 10 in the case of NCN literally went door to door to 11 make sure we were covering the waterfront here, 12 and in the case of both OCN and Cormorant we had 13 local liaison people working for us helping to 14 making sure that those people whose traplines 15 might be affected by the process or by either the 16 routing or the assessment process on the proposed 17 routes were contacted and invited. There has been 18 follow-up since, meetings between our team and 19 individual trappers where there were specific 20 concerns expressed or where there were specific 21 issues to be developed, and there is currently an 22 ongoing contact program being undertaken by the 23 Manitoba Hydro Aboriginal relations department 24 with the view to talking to each of these trappers 25 about potential compensation arrangements. 5152 1 MS. WHELAN ENNS: Thank you very much. 2 End of the week wish, that Department of Manitoba 3 Conservation needs 20 staff yesterday. I would 4 like to, looking at the time, I believe it is ten 5 or 12 after four. 6 MR. SARGEANT: Strachan agrees with 7 you. 8 MS. WHELAN ENNS: Yes. It is 14 after 9 4. What I would be inclined to do, Mr. Chairman, 10 is start on our questions in respect to the 11 environmental protection plan, and I have two or 12 three things here on the corner of the table that 13 I want to provide or ask a question about today. 14 I think it is -- and something I wanted to ask of 15 NCN particular for May. So I will watch, I have a 16 clock right in front of me. I will stop about 17 three minutes before in terms -- 18 THE CHAIRMAN: Five. 19 MS. WHELAN ENNS: Thank you. There 20 are 29 interrogatory responses or responses to 21 requests for further disclosure that refer to 22 issues to be addressed in the environmental 23 protection plan for the Wuskwatim projects. I 24 have in front of me a fairly long list, but I will 25 just jump through it a little bit for examples. 5153 1 These interrogatory responses and requests for 2 further disclosure include mitigation of effects 3 on woodland caribou specifically in the context of 4 compliance with the Federal Species at Risk Act, 5 mitigative measures for rare plants and habitat, 6 avoidance of permanent forestry sample plots, 7 location and avoidance of permafrost, monitoring 8 program and knowledge gap regarding nocturnally 9 active birds, mitigation of effects of 10 transmission line ROWs, monitoring program for VEC 11 species minimization of risk from fire and so on. 12 The list is longer than that. Each of these 29 13 interrogatories are requests for further 14 disclosure then relate to a particular topic. An 15 example would be CNF/MH/NCI1 EIS REG13A, which is 16 then the reference to Species at Risk Act. 17 Another one would be the CNF/MH/NCI1 EIS REG 14A 18 in terms of how we are in fact complying with the 19 Federal Mitigatoriry Birds Act with respect to the 20 Wuskwatim projects. Another would be CNF/MH/NCI1 21 EIS PA26A, concerning the assessment of impacts on 22 protected areas and that would include future 23 protected areas, in terms of policy within CEA, 24 and the eco-districts in the project regions in 25 relation to their natural regions and landscape 5154 1 use there. Each of these in fact have been 2 answered by Manitoba Hydro as being subject 3 material or content for the future environmental 4 protection plan for the projects. CNF/MH/NCN1 5 EIS eco-function 84A, the EIS further states that, 6 and this is a quote in terms of -- 7 THE CHAIRMAN: Just give the number, 8 because with the number the reference that you are 9 giving -- you don't need the reference. 10 MS. WHELAN ENNS: 84A. "All of these 11 potential effects can be reduced to one percent or 12 less through mitigative measures such as selective 13 clearing and where feasible minor adjustments to 14 route alignment and structure locations. Specific 15 mitigative measures, including possible minor 16 adjustments again to route alignment, will be 17 determined during the final design stage for the 18 proposed transmission lines and will be described 19 in the development of the Environmental Protection 20 Plan." 21 That is a fairly consistent example 22 then of the answers as they were received. 113B 23 concerns the permanent sample plots. The answer 24 was, one has the potential to be affected by the 25 transmission ROW. Steps will be taken it avoid 5155 1 this site. This will be further detailed in the 2 Environmental Protection Plan.". 3 Again watching the clock and also 4 indicating to the Commission that we will probably 5 need to return to the Environmental Protection 6 Plan topic given the time that we have today, we 7 would like to ask Manitoba Hydro when we will see 8 the Environmental Protection Plan? 9 MR. HICKS: Mr. Chairman, I think we 10 have answered this question both of CNF and of CEC 11 in the interrogatories. And we have indicated 12 quite clearly that the Environmental Protection 13 Plan will be finalized in part based on any 14 conditions that might be attached to the licence, 15 but prior to the construction. In the case of the 16 transmission lines, of course, that means if the 17 licence were to be issued in fall of this year, we 18 would have to rush to make sure that the 19 Environmental Protection Plan was complete before 20 winter construction, which could occur as early as 21 December of this year. 22 In the case of the Wuskwatim to 23 Herblet Lake and Herblet Lake to Ralls Island 24 segements, construction is two to three to four 25 years distant, and in those cases the 5156 1 Environmental Protection Plan will be developed 2 prior to construction. Part of the reason for 3 that is by no means to try to avoid sharing this 4 information with people, it is because this is a 5 dynamic environment, and we would like to preserve 6 as much opportunity as we can to adjust the 7 Environmental Protection Plan to reflect 8 conditions at the time of construction. 9 THE CHAIRMAN: Mr. Mayer. 10 MR. MAYER: To go on, I also recall in 11 your testimony that you said the Environmental 12 Protection Plan will contain a very clear clause 13 that you will make changes right up to the last 14 moment. And in fact, I recall you telling us that 15 you will in fact send people through in advance of 16 your cutting teams, because if you happen to find 17 the rare vegetable, and the rare plant, that in 18 fact you would make adjustments at that late date 19 for it. 20 MR. HICKS: That is true. 21 MR. MAYER: How long ago was that 22 evidence, do you recall? 23 MR. REMPEL: Just a further point, we 24 also said that we would, in the Environmental 25 Protection Plans, and there will be a number of 5157 1 them, that they would incorporate the conditions 2 that would arise out of a potential licence 3 emanating from Manitoba Environment. And we also 4 noted that filing the Environmental Protection 5 Plan with Manitoba Conservation prior to 6 construction is consistent with the guidelines for 7 both the generating station and the transmission 8 line. And moreover, it is fairly common practice. 9 MR. MAYER: I was wondering if anybody 10 knew where in the transcript that we could refer 11 CNF to those answers so we wouldn't have to go 12 through this when we come back. 13 MR. REMPEL: I believe it was Mr. Abra 14 that pursued that line of questioning a number of 15 days ago, probably Wednesday or Thursday of last 16 week, is my recollection, is that correct, Mr. 17 Abra. 18 MR. ABRA: I'm not sure. It was one 19 of my more brilliant areas. 20 MS. WHELAN ENNS: Taking the point 21 about the time and wanting to make sure that 22 everybody still has got a chuckle left in terms of 23 the end of the afternoon, we are not simply asking 24 questions because we want the Environmental 25 Protection Plan today or yesterday. Nor are we 5158 1 ignoring the quality and content in terms of 2 questions that have been asked in the room. We 3 are concerned, though, about disclosure and this 4 is then a particular area in terms of disclosure 5 that has not happened from a process that we all 6 put a lot of trust in. 7 What I'm going to do, taking a look at 8 the clock, is do these two things that are in 9 front of me, one is kick quick. And that is to 10 ask Mr. Thomas a question in terms of 11 appropriateness for when we resume. And we would 12 probably need to watch in terms of scheduling, so 13 we don't have any misuse of time here. But we 14 would like to know whether you consider it 15 appropriate for us to request the ability to ask 16 an NCN elder who has worked on the Wuskwatim 17 projects with you to be present and to ask some 18 questions of an elder? 19 MR. THOMAS: No. 20 MS. WHELAN ENNS: Then I guess what I 21 would be left with is to ask the Commission to 22 consider the request again, not needing an answer 23 right now. Thank you. 24 We would also like to ask the CEC for 25 some information, again not at the moment, but in 5159 1 the interval of the hearings that is upon us, for 2 further information in respect to who will be 3 participating in the panel of experts in respect 4 to your ruling on the 17th of February? We are 5 very interested in, and agree with you on the 6 topics that you priorized in terms of that 7 approach procedurally. And we would appreciate 8 more information or direction to the public 9 participants on that matter. I would also like to 10 ask the Commission if they could, and we are 11 concerned about testimony, and what is in the 12 transcript from the very beginning of March and 13 our questions of Manitoba Hydro in respect to 14 other projects and future developments that could 15 or might potentially also then have relevance in 16 this discussion or connection to the Wuskwatim 17 projects. So what I'm basically asking you to do 18 is see if you could in fact verify the media 19 report from the 24th of March in respect to the 20 three potential new transmission corridors on the 21 west side of the province. We have written the 22 minister responsible for Manitoba Hydro to ask for 23 verification. I do have the documents here if you 24 would like a copy. You can tell me what is 25 appropriate. But we are concerned in terms of the 5160 1 RJ and FATT cross-examination, the questions that 2 we asked at that time of Manitoba Hydro and the 3 media report that we have no way of verifying. 4 THE CHAIRMAN: We will review these 5 points that you made. It is my somewhat blurred 6 recollection that some of these were already 7 clarified. We will check on that. We will 8 respond accordingly. I would also like to 9 indicate while I've got the mike, that we will 10 also be very tight in terms of when we come back, 11 because everybody has a chance to review the 12 record. And therefore, we will be very insistent 13 that all repetitive questions and answers will be, 14 I will intervene as often as I can find that you 15 are repeating yourselves in the answers and 16 repeating yourselves in the question, and I ask 17 the assistance of all my colleagues and all 18 members in this room in that regard. 19 Having said that, there was somebody 20 who wanted to make a comment. Mr. Wojczynski. 21 MR. WOJCZYNSKI: If it helps at all in 22 the record, there is absolutely no change in our 23 plans or thoughts in regard to transmission or 24 need for transmission right-of-ways in the 25 Wuskwatim area or in regard to interconnections to 5161 1 Saskatchewan or anything like that, which I 2 believe is what Ms. Whelan Enns is asking about. 3 Whereas there is always long term thoughts, could 4 this be possible or that, there are no specific 5 plans or intentions. So there is no change from 6 anything we said earlier in that regard. 7 THE CHAIRMAN: All right. We will get 8 back, if necessary, on some of the other points. 9 Mr. Grewar. 10 MR. GREWAR: Yes, Mr. Chairman, 11 actually while the Canadian Nature Federation is 12 available I wonder if they would like to speak 13 briefly to the three undertakings, we received 14 copies of undertakings from them. I would like to 15 enter them as exhibits, but perhaps they should 16 introduce them. There is three items that they 17 have presented to us. Do you have those in front 18 of you? 19 MS. WHELAN ENNS: No, but we will give 20 this a quick shot. You have an undertaking 21 document from Dr. Bayne, it is the photocopied one 22 I think. 23 MR. GREWAR: The document is entitled 24 "Importance of area and habitat Heterogeneity to 25 Bird assemblages in Temperate forest Fragments, A 5162 1 document on Biological Conservation" by Kathryn 2 Freemark and H.G. Merriam. This would be 3 undertaking 43. 4 MS. WHELAN ENNS: Yes. 5 MR. GREWAR: And we will enter it as 6 CNF1021. 7 8 (EXHIBIT CNF-1021: Importance of area 9 and habitat Heterogeneity to Bird 10 assemblages in Temperate forest 11 Fragments, A document on Biological 12 Conservation" by Kathryn Freemark and 13 H.G. Merriam) 14 MS. WHELAN ENNS: Thank you. My 15 apologies for the interruption. We do need the 16 number. You also have the report to the Minister 17 Responsible for Energy in the Ontario Government, 18 which Elizabeth May was requested to provide. 19 MR. GREWAR: This will be undertaking 20 CNF59, and it is entitled Successful Utility 21 Sector Energy Efficeincy Programs in the United 22 States of America, Sierra Club of Canada, March 5, 23 2004, that would be CNF22. 24 25 5163 1 (EXHIBIT CNF-1022: Successful Utility 2 Sector Energy Efficiency Programs in 3 the United States of America, Sierra 4 Club of Canada, March 5, 2004) 5 6 MS. WHELAN ENNS: I may need to see 7 the third one. I believe it is also Dr. Bayne. 8 This one is undertaking 42, CNF42, I believe also 9 Dr. Bayne. 10 MR. GREWAR: And it is entitled Rough 11 Habitat Loss Model for Wuskwatim Powerline, and it 12 will be 1023. 13 14 (EXHIBIT CNF-1023: Rough Habitat Loss 15 Model for Wuskwatim Powerline) 16 17 MS. WHELAN ENNS: Thank you very much. 18 MR. GREWAR: With those entered, and I 19 appreciate they haven't been distributed, I will 20 distribute them immediately after the session 21 adjourns. Mr. Chairman, I did want to make a 22 mention about the reconvening of the hearing on 23 the 11th of May, it will be here at this location, 24 at the Radisson Hotel, for that week. The 11th, 25 12th, 13th and 14th. The commissioners have 5164 1 advised that it would be their preference that the 2 hearing commence at 9:00 a.m. as opposed to 10:00 3 a.m. as has been the case. So we will start one 4 hour earlier, and I will leave the adjournment 5 time up to chairman, but I presume it will be or 6 around the five or six o'clock mark in each of 7 those days. And then the week of the 25th, 26th 8 we will be meeting at the Sheraton Hotel. 9 THE CHAIRMAN: Thank you, Mr. Grewar. 10 Mr. Abra. 11 MR. ABRA: Two things, Mr. Chairman. 12 Firstly Mr. Rempel's recollection is correct, 13 aparently it was April 8, last Thursday. You are 14 a better man than I am. Thank you. The other 15 issue, Mr. Chairman, relates to an undertaking 16 that we asked Manitoba Hydro about some time ago, 17 but I don't believe that it was put on the record. 18 And it was given to -- I can't remember, 19 Mr. Bedford, if it was you or Mr. Bettner, and it 20 was an issue that arose after Dr. Kulchyski 21 testified, relating to the James Bay agreement 22 that Dr. Kulchyski had given some evidence on, you 23 will recall, when he testified. I don't think it 24 is on the record, as a result of which I thought 25 we would put it on the record so that it is there. 5165 1 And it related to, as I say, the James Bay 2 agreement. And there was a piece -- the piece of 3 the Braves agreement that was signed on February 4 7th of 2002 between the Prime Minister of Quebec, 5 Bernard Landry, and the Grand Chief of the Grand 6 Council of the Cree in Quebec, and we want a 7 comparison done related to that agreement and the 8 summary of understanding between Manitoba Hydro 9 and NCN with respect to the Wuskwatim project. 10 And in particular what we are asking for is a 11 table to be provided that compares the following 12 items. One, the risk related to cash flows 13 received by the Quebec Cree and NCN respectively. 14 Two, capacity of the dams. Three, the number of 15 dams. Four, the in-service dates. Five, the 16 total costs of construction. Six, the area of 17 flooding. Seven, the number of jobs expected to 18 be created. Eight, the number of jobs guaranteed 19 to be filled by Cree Nation persons. And nine, 20 the existence of a training centre. Does that 21 ring a bell, Mr. Bedford? 22 MR. BEDFORD: Yes, it does. We are 23 working on it and I anticipate we will file it 24 with you on May 11. 25 MR. ABRA: Thank you very much. As I 5166 1 say, I thought I had given -- I knew I gave it ot 2 either you or Mr. Bettner, but I didn't think it 3 was on the record. Thank you. 4 THE CHAIRMAN: Is that it, Mr. Abra? 5 MR. ABRA: Yes, thank you. 6 THE CHAIRMAN: Mr. Grewar, you have 7 completed your -- 8 MR. GREWAR: Yes, Mr. Chairman, thank 9 you very much. 10 THE CHAIRMAN: All right. We have 11 achieved a time then that we will adjourn and I 12 will ask our elder to come forward for the final 13 prayer. And I ask all of you to enjoy the time 14 off, but don't get rusty on these issues. 15 MR. DYSART: Thank you. I would like 16 to make a short speech. I wouldn't want to take 17 too much of your time, for I am tired too. As an 18 elder there are a couple of things that I seen. 19 There are a lot of us that wonder and think about 20 our livelihood. As a fisherman and a trapper, and 21 I have been doing that for the last 50 years, now 22 I look at this project, whether the project goes 23 tomorrow or whether it goes at a later date, will 24 that improve our fishery, will that improve our 25 livelihood? So that is one thing that we have to 5167 1 think of. And I don't know whether you are going 2 to be, all of you will be here if this project 3 doesn't come through to try and make my fishery 4 and trapping better. Thank you. Let us pray. 5 6 (Prayer) 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 5168 1 2 3