5168 1 MANITOBA CLEAN ENVIRONMENT COMMISSION 2 3 VERBATIM TRANSCRIPT 4 Volume 22 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 Tuesday, May 11, 2004 22 Radisson Hotel 23 288 Portage Avenue 24 Winnipeg, Manitoba 25 5169 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 5170 1 2 Manitoba Conservation: 3 Larry Strachan 4 Trent Hreno 5 6 Manitoba Hydro/NCN: 7 Doug Bedford, Counsel 8 Bob Adkins, Counsel 9 Marvin Shaffer 10 Ed Wojczynski 11 Ken Adams 12 Carolyn Wray 13 Ron Mazur 14 Lloyd Kuczek 15 Cam Osler 16 Stuart Davies 17 David Hicks 18 George Rempel 19 David Cormie 20 Alex Fleming 21 Marvin Shaffer 22 Blair McMahon 23 24 25 5171 1 LIST OF PARTICIPANTS 2 3 Manitoba Water Services Board 4 Gord Hannon 5 Steve Topping 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 5172 1 2 INDEX OF EXHIBITS 3 4 Number Page 5 6 7 MC-1001: Slide presentation of 8 Mr. Steve Topping 5186 9 10 MMF-1001: Excerpt from 11 Handsard 2004 5313 12 13 MC-1002: Cooperative environmental 14 assessment process for 15 the proposed Wuskwatim Generation 16 and Transmission Projects by 17 Mr. Strachan 5315 18 19 20 21 22 23 24 25 5173 1 2 INDEX OF UNDERTAKINGS 3 4 UNDERTAKING NO. PAGE 5 MC-73: Provide a copy of the provisions 6 and conditions as set out in the interim licence 5188 7 MC-74: Advise what the circumstances 8 are in the regulations when a licence is issued and 9 what modifications can be made 5209 10 MC-75: Advise what statutes or 11 regulations or changes have taken place that fall 12 under the term regulations of the day 5228 13 MC-76: Advise whether there have been 14 any amendments to the regulation since 1973 5230 15 MC-77: Provide information regarding 16 MMF locals being present at consultations to date 17 under stage 2 5263 18 MWS-78: Advise position whether 19 Manitoba Hydro is meeting requirements of Missi 20 Falls licence regime on a regular basis 5291 21 MWS-79: Advise if Hydro notifies 22 Water Branch re adverse impacts on community of 23 South Indian Lake each year 5299 24 25 5174 1 INDEX OF UNDERTAKINGS 2 3 UNDERTAKING NO. PAGE 4 5 MC-80: Advise which recommendations 6 from What You Told Us document were not 7 implemented and provided reasons why 5351 8 MC-81: Produce May 2002 updated 9 Woodland caribou conservation strategy, or advise 10 why not, and advise if update is contemplated for 11 May 2004 5352 12 MC-82: Inquire of Ms. Hickson if she 13 reviewed seven items and provide results of 14 review 5362 15 MH-83: Advise re Manitoba's 16 sustainability indicator initiative 5404 17 18 19 20 21 22 23 24 25 5175 1 TUESDAY, MAY 11, 2004 2 Upon commencing at 9:07 a.m. 3 4 THE CHAIRMAN: Ladies and gentlemen, 5 as per our customary practice, we will begin with the 6 opening prayer from Elder Sam Dysart. I'd ask him to 7 come forward. 8 ELDER DYSART: Thank you. Welcome, 9 everybody. I hope we have a good day today and the 10 days we will be here. Some say it's a bad day. I 11 say it's a good day. As I entered the building, 12 everybody is smiling, they even shook my hand and 13 welcomed me. That's a good sign that we are going to 14 have a good day in the building we're inside. 15 Let us pray. 16 17 (PRAYER) 18 19 THE CHAIRMAN: I too welcome you this 20 morning on this beautiful Manitoba moody morning. I 21 see that even though we've been away for a 22 substantial length of time, I see not too many 23 sunburns around here, a lot of pale faces yet, but 24 there is hope. Summer will come eventually and 25 hopefully when that happens, we won't be here. 5176 1 Like Elder Dysart stated, look at it in 2 the positive way. You wouldn't want to be outside 3 today anyways. So it's not bad to have this roof 4 above your head. Also we reiterate or add onto Elder 5 Dysart's prayer that we also obviously seek the 6 wisdom to be able to listen, to be patient and to 7 seek and speak the truth. 8 In the days since we were last sitting, I 9 have undertaken the sometime tedious, sometime not so 10 tedious task of reviewing what's on the record. And 11 I find out there's some over 5,000 pages of record, 12 and I almost completed it. And I noticed in reading 13 that, some very interesting things have been said. I 14 also noticed that some things have been said more 15 than one time and sometimes more than two times. So 16 some of the things have been repeated quite 17 frequently. And I would ask the indulgence of all 18 presenters, responders to keep that in mind so that 19 we don't unduly lengthen the process. It's not 20 because it is said 10 times that we as Commission 21 members would add special weight to that. We may 22 have to hear it twice before we hear what you're 23 saying but we don't need to hear it 10 times. 24 And I say that for the presenters and for 25 those who respond to questions that if the question 5177 1 has been asked, you don't need to ask it again. If a 2 question has been responded to, you don't have to 3 respond to it again. And I'll ask my colleagues here 4 on the Commission to also help me in picking those 5 out and we are going to make every effort to be 6 flexible but also try to be equitable and make sure 7 that we don't have to unduly repeat ourselves here. 8 So I thank you. And with that, we will 9 begin the business of the day. And we have a 10 presentation today from Mr. Steve Topping I believe. 11 Mr. Grewar. 12 MR. GREWAR: Sir, could you please state 13 your name for the record. 14 MR. TOPPING: My name is Steve Topping. 15 MR. GREWAR: Mr. Topping, are you aware 16 that in Manitoba, it is an offence to knowingly 17 mislead this Commission? 18 MR. TOPPING: Yes, sir, I am aware. 19 MR. GREWAR: Do you promise to tell only 20 the truth in proceedings before this Commission? 21 MR. TOPPING: I do. 22 MR. GREWAR: Thank you, sir. 23 24 (STEVE TOPPING: SWORN) 25 5178 1 MR. TOPPING: I would also like to advise 2 that Gord Hannon from Civil Legal Counsel Services 3 for the Manitoba Justice is also here. I'd like to 4 advise that he has provided advice to the branch in 5 terms of administering of the Water Power Act and I 6 may be calling upon him to answer some specific 7 questions. 8 THE CHAIRMAN: Would you swear him in. 9 MR. GREWAR: Could you state your name 10 for the record, sir? 11 MR. HANNON: My name is Gordon Hannon. 12 MR. GREWAR: Are you aware that it is an 13 offence in Manitoba to knowingly mislead this 14 Commission? 15 MR. HANNON: Yes, I am. 16 MR. GREWAR: Do you promise to tell only 17 the truth in proceedings before this Commission? 18 MR. HANNON: I do. 19 MR. GREWAR: Thank you, sir. 20 21 (GORD HANNON: SWORN) 22 23 MR. TOPPING: Good morning, ladies and 24 gentlemen, my name is Steve Topping. I'm the 25 Director of Water for Manitoba Water Stewardship, 5179 1 the Manitoba Government. I am here at the request of 2 the Clean Environment Commission and I would like to 3 thank the Chair for the opportunity to speak on the 4 licensing process under the Water Power Act. 5 The water power licensing process is 6 independent of the Environment Act licensing process. 7 This presentation will provide information supporting 8 the context of the CEC process. I have already 9 introduced Gord Hannon. He represents Manitoba Civil 10 Legal Services, Department of Justice, and I am 11 calling upon him to answer any questions in terms of 12 specific administration of the Water Power Act. 13 Due to technical difficulties, I don't 14 have the benefit of the screen in front of me. This 15 presentation will give a brief overview of the water 16 power licensing process in Manitoba. I will present 17 the Authority of the Crown, an overview of the Water 18 Power Act and the licensing process under the 19 regulation which is regulation 60-M.R.25/88R pursuant 20 to the Water Power Act. 21 The administration and control of 22 provincial Crown lands, waters and water powers were 23 transferred from Canada to Manitoba through a number 24 of legislations. Specifically, the Constitution Act 25 of 1930 and the Manitoba Natural Resources Transfer 5180 1 Act of 1930 as amended by the Natural Resources 2 Agreement Act of 1938. 3 Before the transfer of resources, Canada 4 administered water power developments under the 5 Dominion Water Power Act. 6 After 1930, Manitoba has administered 7 water power developments under the Water Power Act. 8 Through this Act, Manitoba authorizes the use of 9 provincial Crown lands, waters and water powers. The 10 Water Power Regulation made under this Act provides 11 in detail the process that applies to water power 12 licensing. 13 Since the fall of 2003, the Water Power 14 Act and Regulation are administered through Manitoba 15 Water Stewardship. This Act and its regulation were 16 formerly administered by Manitoba Conservation. 17 Provincial water powers include any force 18 or power contained in or capable of being generated 19 from any flowing or falling waters in such quantity 20 as to make the development of commercial value. 21 Lands required for water power are 22 provincial Crown lands or within which there is a 23 water power or are required for the protection of any 24 water power or are required for the purpose of any 25 water power undertakings. 5181 1 What is an undertaking? Water power 2 undertakings are those things that are those things 3 that are required in the development of any 4 provincial water power development such as storage, 5 regulation, augmentation, diversion and use of water. 6 Or surveying and laying out the project components 7 such as dams, the powerhouse, spillways, transmission 8 station, constructing, maintaining and operating of 9 project components for generating and transmitting 10 power and energy. And it's also the administration 11 and management of lands, works and properties. 12 The Water Power Regulation describes the 13 process for developing and licensing water power 14 development under the Water Power Act. An electronic 15 version of this Act and Regulation are available on 16 line from the Manitoba government website. 17 There are six steps in the water power 18 licensing process. The relevant sections of the 19 Regulation are shown. Firstly, the application. 20 This includes a description of the applicant, a brief 21 description of the nature of the proposed project and 22 site characteristics. 23 Secondly, there's the publication and 24 hearings. The application is publicized in the 25 newspapers to invite the public to submit protests or 5182 1 objections to the project. The Minister can call for 2 public hearings on the application in response to the 3 public submissions. 4 In terms of survey permits, these may be 5 issued allowing the applicant to enter Crown lands to 6 make detailed surveys or conduct engineering 7 investigations for the preparation of general layout 8 plans. Information from the surveys and 9 investigations are submitted to the department and 10 used to determine if the application should proceed 11 further. 12 A priority permit may be issued upon a 13 review of submitted information to give an applicant 14 priority over any other applications or applicants. 15 An interim licence. The Minister with 16 the approval of the Lieutenant Governor in Council 17 may issue an interim licence to the applicant. If 18 the proposed project is considered to be of a 19 suitable design, the interim licence allows for 20 detailed design of works and their construction and 21 operation. Manitoba Hydro has made application for 22 an interim licence so that they may construct the 23 project under the Water Power Act. 24 And finally, the final licence can be 25 awarded upon completion of the development under the 5183 1 interim licence and fulfilment of the conditions 2 under that interim licence. At that point, a final 3 licence would be issued. 4 As for an interim licence, it sets out 5 the following particulars about the water power 6 development. And briefly, the applicant, it sets out 7 the requirement of the name, address and the nature 8 of the business of the corporation. 9 There's a requirement for filing the 10 construction plans. Filings of plans is to be 11 completed within a specific time, typically several 12 months, from the issuance of the interim licence. 13 Upon substantial completion of the 14 development, to the point of producing a stated 15 minimum amount of power, is to be accomplished within 16 a specific period of time, typically five years from 17 the issuance of the interim licence. This is under 18 initial development. 19 As to lands to be occupied, a general 20 statement of the lands of the province which the 21 interim licensee may enter upon, use or occupy for 22 survey, site or investigation and construction of the 23 works. A plan is normally filed to identify the 24 lands to be occupied. 25 As for water utilized, a general 5184 1 statement of the amount of stream flows which may be 2 diverted, used or stored under the provisions of the 3 interim licence, the maximum forebay elevation and 4 plant capacity in terms of horsepower of megawatts 5 are also specified. 6 Under the interim licence, acceptance, a 7 statement which indicates that the project proponent 8 has accepted the terms and conditions of the interim 9 licence in order for the interim licence to be 10 issued. 11 And then final licence which is shown on 12 the next slide. 13 Under the Regulation, an interim licensee 14 is entitled to request a final licence upon 15 completion of the initial development and fulfilment 16 of the terms and conditions of the interim licence. 17 The final licence includes conditions of 18 the interim licence and any new conditions that the 19 minister may impose. The final licence will provide 20 for the term of operation for up to 50 years. 21 The proponent of a proposed water power 22 development requires authorizations or approvals 23 under a number of federal and provincial statutes or 24 regulations. 25 The licensing process under the Water 5185 1 Power Act is separate from the licensing process 2 under the Environment Act. 3 The Water Power Act licensing provides 4 for the authority to use provincial Crown lands, 5 waters and water powers and so involves some 6 different considerations than those of the 7 environmental approval process. The Minister of 8 Water Stewardship is charged with the administration 9 of the Water Power Act. 10 The Environment Act approval of course 11 considers the potential effects of the proposed 12 development as defined under the Act on the 13 environment. A licence under the Environment Act may 14 include terms and conditions to address potential 15 effects of the development. The Minister of 16 Conservation is charged with the administration of 17 the Environment Act. 18 The issuance of an interim licence under 19 the Water Power Act allows for a detailed design and 20 construction of the proposed generation project. The 21 decision to issue the licence may be considered after 22 concerns have been addressed through all the 23 regulatory processes. 24 And with that, I'd like to conclude my 25 presentation. 5186 1 MR. GREWAR: Mr. Chairman, if we might 2 enter as Exhibit MC-1001, the slide presentation of 3 Mr. Topping. 4 THE CHAIRMAN: Thank you. 5 6 (EXHIBIT MC-1001: Slide presentation of 7 Mr. Steve Topping) 8 9 THE CHAIRMAN: At this point in time, we 10 thank you, Mr. Topping, for the presentation. We 11 have reached a point where there will be questions. 12 Might members of the Panel, Mr. Mayer, begin. 13 MR. MAYER: Mr. Topping, what is the 14 status of Churchill River Diversion and the Augmented 15 Flow Program and how does it relate to licensing 16 under the Water Power Act? 17 MR. TOPPING: At the present time, the 18 Churchill River Diversion has an interim licence in 19 which the terms and conditions of that licence will 20 stay in force irrespective of the Wuskwatim project. 21 Manitoba Hydro has made application for an interim 22 licence under the Wuskwatim project and it is not 23 anticipated that -- it will not affect the terms and 24 conditions of the interim licence of the Churchill 25 River Diversion. 5187 1 MR. MAYER: And do you issue a similar 2 licence for the augmented flow program? We 3 understand that the Minister does something each and 4 every year, we expect, in that program. 5 MR. TOPPING: Yes. Let me refer to my 6 notes on that one. The augmented flow program is an 7 annual authorization provided by the Minister of 8 Water Stewardship. And that approval of the 9 augmented flow program is subsequent to Section 20 of 10 the Water Power Act regulation in which the Minister 11 may impose stipulation, provisos and conditions. And 12 it's also under the provision of the Section 39 of 13 the Water Power Regulation allowing amendments to the 14 interim licences specific to the Churchill River 15 Diversion interim licence. 16 MR. MAYER: My final question, Mr. 17 Topping, is having watched the water that resulted 18 from the Churchill River Diversion flow through my 19 community since the early seventies, when does the 20 interim licence get finally approved if it ever does? 21 MR. TOPPING: It is the responsibility of 22 the proponent to make application for final licence 23 for the Churchill River Diversion. There were a 24 number of terms and conditions provided on the 25 interim licence, a number of undertakings that Hydro 5188 1 must complete. Specifically one of the undertakings 2 is determining the severance line for the Churchill 3 River Diversion project which they are still trying 4 to complete that aspect of the undertaking. 5 MR. MAYER: How does one get a copy of 6 the provisions and conditions as set out in the 7 interim licence? Is that a public document? 8 MR. TOPPING: Yes, it is a public 9 document. 10 MR. MAYER: I am assuming then the 11 Commission could get a copy of that document? 12 MR. TOPPING: Yes, I can provide one if 13 you wish. 14 MR. MAYER: I would appreciate that. I 15 for one would appreciate that. Thank you very much. 16 I have nothing further. 17 18 (UNDERTAKING MC-73: Provide a copy of the provisions 19 and conditions as set out in the interim licence) 20 21 THE CHAIRMAN: Mr. Sargeant? 22 MR. SARGEANT: Just to follow on Mr. 23 Mayer's questions. Can an interim licence go on in 24 perpetuity? 25 MR. TOPPING: Under the Water Power Act, 5189 1 there is no definitive period set for finalizing an 2 interim licence. 3 MR. SARGEANT: Doesn't it sort of make a 4 mockery of the term "interim"? 5 MR. TOPPING: The final licence, under 6 most circumstances, would follow many of the terms 7 and conditions that are presently existing in the 8 interim licences. As such, it is the Water Branch's 9 responsibility to monitor Hydro's activities under 10 the auspices of that interim licence. 11 MR. SARGEANT: But they can just go on as 12 long as Hydro wants applying for an interim licence 13 annually? 14 MR. TOPPING: There is no definition in 15 the Act for specifying a period in which the interim 16 licence needs to be finalized. 17 MR. SARGEANT: Mr. Hannon, do you have 18 something to add to that? 19 MR. HANNON: If I may just add to what 20 Mr. Topping had said. The regulations provide for a 21 process. And Section 43 of the Water Power 22 Regulations provides for a final licence upon the 23 completion of the initial development according to 24 the plans and the fulfilment and compliance of the 25 terms and conditions of the interim licence. The 5190 1 Regulation contemplates that after that is done, 2 there will be a final licence. 3 So I would not say that the regulations 4 contemplate an interim licence in perpetuity. It 5 doesn't, however, put a specific time period on the 6 interim licence and the licence is issued and 7 continues. It isn't issued annually. It continues 8 until something else happens which is generally the 9 completion of the conditions and an application by 10 the operator of Manitoba Hydro. 11 MR. SARGEANT: And so the conditions that 12 remain outstanding on the CRD interim licence are the 13 drawing of the severance line? Is that what you 14 said? 15 MR. TOPPING: That's one of the major 16 undertakings that needs to be completed. 17 MR. SARGEANT: Is there any onus on Hydro 18 to complete that within a reasonable period of time? 19 MR. TOPPING: We have been working with 20 Hydro in terms of their progress on completing that 21 undertaking. 22 MR. SARGEANT: It's been about 20 years 23 now, isn't it? Yeah, I suppose closer to 30. 24 MR. TOPPING: Meaning the other 25 undertakings of course where they are developing 5191 1 community agreements. So it has taken a substantial 2 period of time to complete those conditions. 3 MR. SARGEANT: Thank you. 4 THE CHAIRMAN: You state, Mr. Topping, 5 that the Water Power Act is a very different 6 licensing process than under the Environment Act. 7 This is now done by the Minister responsible for 8 Water Stewardship. So in the end, this process will 9 require licensing by the Minister responsible for 10 water? 11 MR. TOPPING: That is correct. 12 THE CHAIRMAN: As well as licensing from 13 the Minister responsible for Conservation? 14 MR. TOPPING: That is also correct. 15 THE CHAIRMAN: How many licences are 16 required for this project to proceed? 17 MR. TOPPING: Actually I don't know. I 18 just -- I am aware of the water power licence 19 requirement. The environmental licensing process and 20 also of Crown land, Crown land permanent or licence 21 for occupying the land for the transmission line. 22 THE CHAIRMAN: Currently there's an 23 interim licence stemming from the Water Power Act for 24 Hydro to occupy this territory and do the studies 25 required for this process, is that correct? An 5192 1 interim licence is currently in place? 2 MR. TOPPING: For the Churchill River 3 Diversion, not for the Wuskwatim project. 4 THE CHAIRMAN: There has to be some kind 5 of licence, maybe that's from Conservation, for the 6 proponent to begin its surveys, its studies in the 7 area? 8 MR. TOPPING: Yes, the water power 9 licence, interim licence does provide the 10 authorization for Hydro to proceed for construction 11 layout and construction. 12 THE CHAIRMAN: So there is an interim 13 licence? 14 MR. TOPPING: Oh, sorry, I misunderstood 15 your question. In terms of collection and 16 environmental assessment, undertakings, for instance 17 what's completed today, Manitoba Hydro has received 18 Crown -- Crown lands permits are in place. And 19 secondly, they have made application for a survey 20 permit which will provide for the construction layout 21 of the project. 22 THE CHAIRMAN: And there is no interim 23 licences from under the Water Power Act? 24 MR. TOPPING: No. Manitoba Hydro made 25 application May 6th of 2003 for an interim water 5193 1 power licence. And it is undergoing due process 2 within our department. 3 THE CHAIRMAN: So it hasn't been issued 4 yet? 5 MR. TOPPING: No, it has not. 6 THE CHAIRMAN: So the studies and 7 analysis of water, anything related to water, whether 8 it's the turbidities, suspended solids or 9 invertebrates of the water or fish, et cetera, that 10 does not come under the Water Power Act? 11 MR. TOPPING: We will be looking at 12 various information in order to award an interim 13 licence under the Water Power Act. For instance, the 14 recommendations from the Clean Environment 15 Commission, many of those recommendations may also go 16 in as conditions to the water power interim licence. 17 The Wuskwatim Aboriginal consultations 18 that the province is conducting will also be 19 information that will be considered along with the 20 proponent's submissions. 21 THE CHAIRMAN: But at this point in time, 22 the proponent is authorized to proceed and do the 23 analysis without requiring an interim licence to do 24 that, water analysis, environmental impact analysis 25 in terms of the water resource. That's correct? 5194 1 MR. TOPPING: That's correct. The water 2 power licence has nothing to do with the 3 environmental conditions. 4 THE CHAIRMAN: Eventually, the Minister 5 responsible for Water Power Act, I think you said a 6 while ago, is involved in the granting of a licence. 7 In the EIS, in terms of water, the water resources in 8 the area, there are a number of assessments that deal 9 with water. And in dealing with these, very often 10 the proponents proposes to put in place some 11 monitoring programs or perhaps some water management 12 programs or maybe some other conditions that the 13 proponent proposes to do. Would these be reflected 14 in the licence that would be granted under the Power 15 Act? 16 MR. TOPPING: Yes. We would consider the 17 conditions in the Environment Act licence if they are 18 appropriate for incorporation in the water power 19 licence. The Water Power Act, its primary 20 responsibility is to monitor the established flow 21 regime paramaters Hydro has given under the -- Hydro 22 would be given under an interim licence. As such, 23 there's a monitoring process related to Hydro's 24 operation of the facilities. 25 THE CHAIRMAN: A monitoring process that 5195 1 you undertake as a department? 2 MR. TOPPING: It is a requirement for 3 Hydro to satisfy the conditions of the interim 4 licence. 5 THE CHAIRMAN: So it is a requirement put 6 in the licence in terms of an obligation imposed on 7 the proponent to monitoring? 8 MR. TOPPING: Monitoring in terms of 9 their flow regime, their licence flow regime that 10 there would be established in the licence. 11 THE CHAIRMAN: Okay. What about anything 12 related to the quality of the water? 13 MR. TOPPING: Based on my past knowledge 14 of other licences, no, the water quality is not a 15 requirement under the Water Power Act to monitor 16 that. But it's not to say that that may not be 17 considered. 18 THE CHAIRMAN: As I understand it, from 19 the federal level, there is also requirements, there 20 is a licence granted or licences granted to the 21 operation. Would water quality be reflected in 22 conditions related to those licences? 23 MR. TOPPING: I can't speak to that. 24 THE CHAIRMAN: You indicated that some 25 monitoring conditions may be reflected in the 5196 1 licence. If the proponent proposes to do some of the 2 monitoring, would those be the type of monitoring 3 conditions put in the licence? 4 MR. TOPPING: Those that the proponent 5 may propose and that may be imposed upon them through 6 the licensing process. It could be monitoring of the 7 flow regime and identifying exceedances, if they did 8 occur, in the licence conditions for potentially low 9 flow or maximum flow conditions or targeted 10 elevations of forebays. 11 THE CHAIRMAN: The proponent has proposed 12 some monitoring programs. If they are not reflected 13 in the licences, how will you ensure that these 14 monitoring programs are carried out? 15 MR. TOPPING: The Water Power Act will 16 cover off the monitoring related to Hydro's 17 operations in terms of the flow regime. I'd expect 18 the Environment Act licence will cover off any 19 environmental monitoring requirements. 20 THE CHAIRMAN: The way I understand it, 21 the new Water Stewardship Department and the Minister 22 which is responsible for that department had some 23 obligations not only in terms of flow but in terms of 24 water quality. If not, I'm just wondering under what 25 guise the Minister is making comments in terms of 5197 1 enhancing the quality of Lake Winnipeg, et cetera, 2 and programs or a management program to do that? 3 MR. TOPPING: Definitely Manitoba Water 4 Stewardship has water quality, water quantity in 5 their mandate. We will be putting the necessary 6 provisions through monitoring that are permissible 7 under the Water Power Act legislation. 8 THE CHAIRMAN: Yes, but so far what you 9 told me, that relates only to the flow program. 10 You've basically stated that none of that relates to 11 water quality. 12 MR. TOPPING: Well once again, I'd like 13 to reiterate. I'd expect the environment licence 14 will cover off environmental monitoring conditions 15 and frequency of reporting. 16 THE CHAIRMAN: So anything related to the 17 water quality comes under the Conservation 18 Department. It's not within your minister's purview? 19 MR. TOPPING: The province has other 20 legislation, for instance, the new Water Protection 21 Act which may have some application. But once again, 22 that Act has not been passed. 23 THE CHAIRMAN: Okay. So perhaps it is 24 due to that fact, that you're still referring only to 25 water flow. That would transfer these additional 5198 1 responsibilities then under this new Act to the 2 Minister responsible for Water Stewardship? 3 MR. TOPPING: I expect the terms and 4 conditions of the Environment Act licence will have 5 precedence over Water Protection Act. And there may 6 not be necessarily overlap between the two Acts in 7 this matter. 8 THE CHAIRMAN: Yes. I'll leave it at 9 that for now. I'll come back to that. Other 10 questions? Ms. Avery Kinew. 11 MS. AVERY KINEW: Good day. I was 12 wondering about monitoring and who does the 13 monitoring, what kind of reports you receive, how do 14 you monitor the reports? 15 MR. TOPPING: Yes, the responsibility is 16 Manitoba Hydro's to do the monitoring through gauging 17 stations along the system as established in the 18 interim licence. The frequency that we have for 19 monitoring on the Churchill River Diversion system, 20 it's at a number of points along the system. Hydro 21 is required to provide weekly bulletins on the 22 operations of Lake Winnipeg Regulation, Churchill 23 River Diversion. They are also required to provide a 24 monthly summary report on those operations and/or at 25 any time there could be a potential deviation from 5199 1 licence divisions. 2 MS. AVERY KINEW: What role does the 3 Department of Water Stewardship have? Do you check? 4 Do you do spot checks? 5 MR. TOPPING: The Department of Water 6 Stewardship has a responsibility of checking the 7 accuracy of that information and checking to see it 8 complies with the terms and conditions of the interim 9 licence. 10 MS. AVERY KINEW: So you're actually on 11 the ground sometimes out there or do you just receive 12 written reports? 13 MR. TOPPING: Primarily written reports. 14 There are standards in which are set in terms of 15 picking this information up. For instance, Water 16 Survey of Canada also has a role in picking up some 17 of the stations related to -- that aren't necessarily 18 Hydro's operation but are supporting information for 19 the monitoring process. 20 MS. AVERY KINEW: Thank you very much, 21 Mr. Topping. 22 THE CHAIRMAN: Mr. Mayer. 23 MR. MAYER: I'd like to follow up 24 something that the Chair was asking. Now, I think I 25 heard you correctly. The Minister of Water 5200 1 Stewardship doesn't have the authority at this point 2 in time to be concerned about the quality of water. 3 That is the responsibility of the Minister of the 4 Environment or the Minister of Conservation under the 5 Environment Act. Is that what I heard you say? 6 Because it very seriously conflicts with the public 7 statements made by both the Minister of Water 8 Stewardship and the Premier. 9 MR. TOPPING: Sir, I'll have Gord answer 10 that question. 11 MR. HANNON: Mr. Mayer, I believe what 12 Mr. Topping was getting at is the objectives of the 13 Water Power Act itself which is part of the mandate 14 of the Department of Water Stewardship. It's not all 15 of the mandate. And so the Water Power Act is 16 focused on the use of Crown land, Crown waters and 17 water powers associated with the water power 18 undertaking. 19 There are other elements of the 20 Department of Water Stewardship including the new 21 water protection legislation Mr. Topping spoke of. 22 So that the licence under the Water Power Act focuses 23 on the water power issues whereas environmental 24 management and monitoring issues would generally fit 25 probably more closely with the licence under the 5201 1 Environment Act now administered by the Department of 2 Conservation. 3 MR. MAYER: And so the water quality 4 issue in something like Churchill River Diversion or 5 the development of Wuskwatim falls under the 6 authority of the Environment Act which still falls 7 within the purview of the Minister of Conservation, 8 not the Minister of Water Stewardship; am I right? 9 MR. TOPPING: That is correct. 10 MR. HANNON: I would add to that, though, 11 these are not mutually exclusive. That the 12 Department of Conservation through the Environment 13 Act is responsible for licensing that deals with the 14 environmental effects generally including water-based 15 environmental effects. And whereas the Department of 16 Water Stewardship has the specific water focus. The 17 Environment Act is a comprehensive effect which 18 includes licensing on water-based environmental 19 effects. 20 MR. MAYER: I recognize that there's 21 still some transition kinks that probably are going 22 to have to be worked out. I was sort of trying to 23 inquire of where quite they were at. I think I have 24 some idea of it. 25 Back to the interim licence. Firstly, 5202 1 Mr. Falk was kind enough to provide me with a copy of 2 the interim licence so we don't worry about that. In 3 going through the licence, I am assuming the 4 severance line issue is required in order to satisfy 5 the condition of the licence in Section 5, as I read 6 it, that accurately defines the amount of Crown land 7 that must be occupied or set aside for the purposes 8 of the project. Is that what the severance line is 9 for? 10 MR. TOPPING: That is correct, yes. 11 MR. MAYER: Now, we have fairly clear 12 maps, at least I thought we had, in Thompson as to 13 where that severance line was. Where are we missing 14 the drawing of the severance lines? I mean after 30 15 years, I find it hard to understand in light of the 16 fact that after the issuance of the licence or the 17 interim licence for the diversion, Hydro came back 18 and got consistently for the last number of years the 19 augmented flow program approved annually. I'm having 20 trouble understanding why after that period of time, 21 somebody hasn't been able to tell us along what is, 22 in terms of geography, a relatively short distance 23 where the severance line would be. Like what's the 24 hold-up? 25 MR. TOPPING: Manitoba Hydro has not 5203 1 submitted plans detailing the severance line at this 2 time. 3 MR. MAYER: None of it? 4 MR. TOPPING: No. 5 MR. MAYER: Thank you. 6 THE CHAIRMAN: Mr. Abra. 7 MR. ABRA: Mr. Topping, my name is Doug 8 Abra. I'm the counsel for the Clean Environment 9 Commission. I had some questions I'd like to bring 10 out. Picking up firstly on the issue that was raised 11 by the chairman and by Ms. Avery Kinew on the issue 12 of water quality. I gather that's not your area of 13 jurisdiction so to speak. It's not your bailiwick? 14 MR. TOPPING: Water quality is the 15 responsibility of Manitoba Water Stewardship. We 16 have a water quality section managed by Dwight 17 Williamson that does do ambient water quality 18 monitoring. 19 MR. ABRA: What I'm getting at, sir, is 20 we do have some questions related to water quality 21 standards, objectives, guidelines and so on. Who 22 would be the best person to answer those questions? 23 MR. TOPPING: Under the Water Protection 24 Act, this new legislation, those standards, 25 guidelines are set out in that new legislation. 5204 1 Dwight Williamson's water quality management section 2 will be responsible for the administration of that 3 Act. 4 MR. ABRA: Mr. Hannon, did you have a 5 comment? 6 MR. HANNON: No, Mr. Abra, thank you. 7 MR. TOPPING: Dwight Williamson reports 8 to myself as Director of Water at this point in time. 9 MR. ABRA: He is the one who's going to 10 be responsible for the standards and so on? 11 MR. TOPPING: That's correct. 12 MR. ABRA: Would he be available to 13 testify in the event we decided we wanted to get 14 evidence in that regard? 15 MR. TOPPING: I don't see a problem with 16 that. 17 MR. ABRA: Thank you very much, sir. 18 Also on the issue of monitoring of that Ms. Avery 19 Kinew is asking about, some of the intervenors at 20 these hearings have taken the position quite strongly 21 at times that there is the potential or an actual 22 conflict of interest in Manitoba Hydro being 23 responsible for the monitoring. And you have drawn 24 an analogy that was sort of commented today in an 25 essence that a team in the Stanley Cup Playoffs 5205 1 supplies a referee. Has there ever been any 2 consideration given to ordering independent 3 monitoring as opposed to it being done under the 4 auspices of Hydro? 5 MR. TOPPING: There have been specific 6 circumstances and I would cite the on Lake Winnipeg 7 Regulation, the gauging stations around Lake Winnipeg 8 were audited for accuracy and in terms of accuracy of 9 the gauges and the publication of the information. 10 That's a specific example I could cite. 11 MR. ABRA: So there have been instances 12 where it has been done, where independent monitoring 13 has been ordered? 14 MR. TOPPING: That's correct. 15 MR. ABRA: And subject to recommendations 16 that may be made by someone, whether the Commission 17 or whoever in this regard, is that something that 18 your department would consider in issuing either the 19 interim or the final licence? 20 MR. TOPPING: It may be a consideration. 21 MR. ABRA: Okay. Now, going nextly to 22 Churchill River Diversion, a follow-up on some of the 23 questions that have been asked by members of the 24 Commission, the interim licence for CRD, or Churchill 25 River Diversion, has been in place now I gather for 5206 1 almost 30 years? 2 MR. MAYER: May 11, 1973. 3 MR. TOPPING: Since May 11, 1973, that's 4 correct. 5 MR. ABRA: Thirty-one. I didn't know it 6 was May 11th, we just seemed to hit it right. Is it 7 unusual, sir, for an interim licence to be in effect 8 that long? 9 MR. TOPPING: From my experience, no. 10 MR. ABRA: It's not. So there have been 11 other instances where interim licences have been in 12 place for that long? 13 MR. TOPPING: Yes. 14 MR. ABRA: Involving projects other than 15 those related to Manitoba Hydro? 16 MR. TOPPING: No, specific to Manitoba 17 Hydro licences. 18 MR. ABRA: These are ones related to what 19 other than CRD, sir? 20 MR. TOPPING: Lake Winnipeg regulation. 21 MR. ABRA: That's still an interim 22 licence that's in place? 23 MR. TOPPING: That's correct. 24 MR. ABRA: Okay. Now it's my 25 understanding that the annual approval that's given 5207 1 for the augmented flow program, or AFP as everyone 2 seems to refer to it, is not included in the interim 3 licence that's given annually to Hydro related to 4 CRD; am I correct? 5 MR. TOPPING: The interim licence is not 6 given annually. The augmented flow program is 7 provided. 8 MR. ABRA: Is approved? 9 MR. TOPPING: Is approved on an annual 10 basis. 11 MR. ABRA: Is there any particular reason 12 why it's not included in the interim licence for CRD? 13 MR. TOPPING: It may be considered in the 14 final licence for CRD. 15 MR. ABRA: But at present, it's the 16 intention just to carry on by giving annual approval 17 to the augmented flow program with the interim 18 licence remaining in effect? 19 MR. TOPPING: That has been our process 20 today. 21 MR. ABRA: Can you give us any idea as to 22 when it's likely the final licence will be issued for 23 CRD? 24 MR. TOPPING: Manitoba Hydro has 25 indicated that once the Wuskwatim licensing 5208 1 project -- licensing process is completed, the 2 outstanding issues related to that project, they will 3 make application for final licence for CRD. 4 MR. ABRA: And at the time that 5 application is made for final licence, could that 6 trigger hearings either by federal authorities or 7 provincial environmental assessment process? 8 MR. TOPPING: The province is prepared 9 for consultations for the CRD licensing. The nature 10 of those consultations will be dependent on Hydro's 11 submission and the interest at that time from the 12 public. 13 MR. ABRA: Okay. Now, once a final 14 licence is issued, is it possible to make 15 modifications or adjustments to it? 16 MR. TOPPING: Maybe I'll let Gord answer 17 that one. 18 MR. ABRA: That's fine. 19 MR. HANNON: I believe there are 20 provisions for, in certain circumstances, making 21 adjustments to a final licence. 22 MR. ABRA: There are specific 23 circumstances in the regulations, Mr. Hannon? In 24 other words, they have to fall within certain 25 criteria for modifications to be made? 5209 1 MR. HANNON: Well, I believe the 2 regulations contemplate amendments, and I'll see if I 3 can find the provision. And as is the case for 4 interim licences, it is possible to amend them. 5 Again, it depends on the specific conditions and the 6 specific circumstances. 7 MR. ABRA: Can we have an undertaking 8 from you to provide us more information in that 9 regard, once you've had a chance to look it up, as to 10 what the circumstances are and what modifications can 11 be made? 12 MR. HANNON: I'll try to do that right 13 away. I'm just leafing through the pages here but 14 certainly I can do that. 15 MR. ABRA: That's fine. Thank you. 16 17 (UNDERTAKING MC-74: Advise what the circumstances 18 are in the regulations when a licence is issued and 19 what modifications can be made) 20 21 MR. ABRA: What are the penalties and 22 consequences of any licensee that violates the terms 23 and conditions of a licence, whether advertently or 24 inadvertently? 25 MR. HANNON: There are -- a licence 5210 1 itself is subject to enforcement or termination in 2 the event of a failure to comply with it because what 3 a licence constitutes is an authorization on 4 conditions to use Crown lands, waters and water 5 powers. And accordingly, the failure to comply with 6 a licence may have consequences in terms of either 7 specific enforcement actions, if set out in the 8 licence, or termination or similar enforcement. 9 MR. ABRA: The ultimate sanction would be 10 termination of the licence I assume? 11 MR. HANNON: Right. 12 MR. ABRA: Are there investigations that 13 are carried out in that regard, sir, or how does this 14 type of thing come about? 15 MR. TOPPING: As I indicated, we do 16 monitor Manitoba Hydro's operations. Should there -- 17 sometimes there are requested deviations from the 18 terms and conditions of the interim licence in 19 which -- for operational consideration only. And 20 Hydro does submit to us in writing the reasons for 21 those deviations and is responsible for mitigation of 22 any impacts related to a deviation. Hydro has a very 23 good record in terms of identifying those deviations 24 to the branch. 25 MR. ABRA: And then in consultation with 5211 1 the branch and Hydro then try and work through these 2 deviations and so on? Is that basically what your 3 experience has been? 4 MR. TOPPING: That's correct. 5 MR. ABRA: Okay. The interim licence for 6 the Churchill River Diversion does have certain 7 requirements related to specified minimum flows at 8 Missi Falls; am I correct? 9 MR. TOPPING: Yes, you're correct. 10 MR. ABRA: Okay. Now, those are modified 11 each year by the Augmented Flow Program or can be 12 modified each year? 13 MR. TOPPING: The Augmented Flow Program 14 has not had changes since 1986, so it has been -- 15 MR. ABRA: The same standards apply? 16 MR. TOPPING: It's been renewed every 17 year under the same conditions. 18 MR. ABRA: But when you say it's been 19 renewed each year, that also includes specifications 20 related to water flow at Missi Falls? 21 MR. TOPPING: That's correct. 22 MR. ABRA: Each year, when you examine 23 the application for the Augmented Flow Program, there 24 is an application made I understand, is there? 25 MR. TOPPING: That's correct. 5212 1 MR. ABRA: When you examine the 2 application each year, do you take steps to satisfy 3 yourselves that the minimum flows that are specified 4 for Missi Falls are adequate to maintain the 5 productivity of the Churchill River and the northern 6 basin of South Indian Lake? 7 MR. TOPPING: Firstly, the application 8 receives a review by a number of agencies and 9 communities that can provide input onto that. We 10 also provide a request comments form from the 11 Environmental Approvals Branch in terms of any 12 recommendations they would have in terms of the 13 environmental considerations that should be looked at 14 in terms of the authorizing of the augmented flow 15 program. 16 MR. ABRA: Okay. And through that 17 process then, you do satisfy yourselves that there's 18 going to be sufficient flow through Missi Falls for 19 the purpose of the Churchill River? 20 MR. TOPPING: Yes, we do. 21 MR. ABRA: Okay. Just turning briefly to 22 the other generation stations that related to 23 licensing. What is the status of licensing for other 24 developments along the Churchill River Diversion 25 including Kelsey, Kettle, Long Spruce and Limestone? 5213 1 In particular, what I'm asking is has a final licence 2 been issued for any of those developments? 3 MR. TOPPING: No. I believe they are on 4 interim licences also. 5 MR. ABRA: Can you give us any time 6 parameters within which final licences might be 7 issued? What's the delay? Some of those dams have 8 been in place now for quite a while. 9 MR. TOPPING: Once again, I would advise 10 that the proponent Manitoba Hydro has a 11 responsibility of making application and I would 12 expect those other plants would follow suit after the 13 Churchill River Diversion final licence completion. 14 MR. ABRA: Okay. 15 MR. TOPPING: As they fall under the 16 terms and conditions of that. 17 MR. ABRA: As you said earlier, your 18 present information is there may be application made 19 for a final licence for the Churchill River Diversion 20 after Wuskwatim is completed? 21 MR. TOPPING: That's correct. 22 MR. ABRA: Turning to Wuskwatim now, you 23 may have wondered when I was going to get there, but 24 I have some questions in that regard obviously. Now 25 it's my understanding from what you said in your 5214 1 opening statement that the interim licence is issued 2 for construction of the project and then the final 3 licence is effectively issued for the operation. 4 Have I got that correct? 5 MR. TOPPING: No. The interim licence 6 also covers off the operational parameters of the 7 project. 8 MR. ABRA: Okay. But ultimately when the 9 final licence is issued, it's for the purpose of the 10 final operation, for want of a better expression? 11 MR. TOPPING: That's correct. And in 12 most circumstances, would likely restate the terms 13 and conditions of the interim licence or any 14 alterations to those. 15 MR. ABRA: Now there has been application 16 made already by Hydro for an interim licence? 17 MR. TOPPING: On the Wuskwatim project, 18 that's correct. 19 MR. ABRA: When will it be issued, sir? 20 MR. TOPPING: The interim licence will -- 21 I can't give a definitive time frame. That's at the 22 Minister's discretion. And a number of undertakings 23 need to be completed by the proponent. We also 24 intend to utilize the results from the CEC Commission 25 hearings. 5215 1 MR. ABRA: Any recommendations made by 2 CEC will be considered in that regard? 3 MR. TOPPING: Absolutely. 4 MR. ABRA: And then it's ultimately the 5 Minister's discretion as to when and if any licence 6 is issued? 7 MR. TOPPING: That's correct. 8 MR. ABRA: Do you foresee that the 9 interim licence for Wuskwatim might include operating 10 conditions imposed by Churchill River Diversion and 11 the Augmented Flow Program and Churchill River weir 12 licences? 13 MR. TOPPING: Hydro has made application 14 for the project to be operated under the terms and 15 conditions of that Churchill River Diversion, 16 interim licence and Augmented Flow Program. 17 MR. HANNON: Mr. Abra, can I correct 18 something that we may have been too hasty in saying? 19 And I have checked my records and I do have some 20 records with me. And my understanding is that there 21 are final licences for Long Spruce, Kelsey and Missi 22 Falls. 23 MR. ABRA: Okay. 24 MR. HANNON: And that the others 25 including Limestone, Churchill River Diversion, Lake 5216 1 Winnipeg Regulation and Jenpeg are on interim 2 licences. 3 MR. ABRA: Are those final licences in 4 the Public Registry, Mr. Hannon? 5 MR. HANNON: I don't think they are in 6 the Public Registry. 7 MR. ABRA: They are available for review 8 by anyone that wants to see them? 9 MR. TOPPING: That's correct. 10 MR. MAYER: When was Kelsey finally 11 licensed? It's my understanding that it was 12 constructed certainly no later than 1958 and possibly 13 sometime earlier because it provided the power for 14 the construction to the mine site at Thompson as I 15 understand it. 16 MR. HANNON: I can speak to the final 17 licence. The final licence was issued in March of 18 1966. 19 MR. ABRA: Mr. Topping, the licences, 20 both interim and final, generally have terms and 21 conditions that include things as maximum and minimum 22 flows; am I correct? 23 MR. TOPPING: That's correct. 24 MR. ABRA: Maximum flow variation? 25 MR. TOPPING: Correct. 5217 1 MR. ABRA: Maximum and minimum forebay 2 elevations? 3 MR. TOPPING: Correct. 4 MR. ABRA: And maximum rate of forebay 5 elevation change? 6 MR. TOPPING: Correct. 7 MR. ABRA: Can you give us some idea of 8 what are other typical terms and conditions that may 9 be in interim and final licences? Obviously I don't 10 expect you to go through them in minute detail. Are 11 there any other significant terms and conditions that 12 might be included in an interim licence, for example, 13 for Wuskwatim? 14 MR. TOPPING: Plant capacity. That's one 15 in particular I can think of off the top of my head. 16 MR. ABRA: When you say plant capacity, 17 what do you mean? 18 MR. TOPPING: In terms of megawatts, 19 power, energy, produced maximum energy output. 20 MR. ABRA: Right. 21 MR. TOPPING: You've covered off most of 22 the operational parameters that come to mind. 23 MR. ABRA: Do either interim or final 24 licences ever include environmental terms and 25 conditions? 5218 1 MR. TOPPING: From my general knowledge, 2 not to date that have they covered off any of the 3 environmental issues. 4 MR. ABRA: Sorry? 5 MR. MAYER: On that point, I thought I 6 just read condition 14 of the interim licence for CRD 7 that required bush clearing on all occupied lands. 8 MR. TOPPING: Is that an environmental 9 consideration or the disposition of Crown lands? 10 MR. HANNON: Well, I have in the 11 Limestone licence, I probably should do better 12 service in reviewing them in more detail, there is 13 only an interim licence for Limestone. But it does 14 say this is one provision that's on page 14, 15 paragraph 15(i) speaks to studies relating to 16 facilities for the collection and passage of live 17 fish, for example. I would perhaps characterize that 18 as an environmental condition. 19 There is another one just previous to 20 that in "H", 21 "Licensing shall, to the satisfaction 22 of the Minister, clear and keep clear 23 from timber, brush and other material 24 all lands which are flooded." 25 So that could be characterized as an environmental 5219 1 condition. 2 MR. ABRA: Just for the record, Mr. 3 Hannon, you said live fish? 4 MR. HANNON: It says live fish in the 5 licence. 6 MR. ABRA: Sorry, I thought you said 7 wide. I didn't know what a wide fish was. I thought 8 the reporter had to make sure it was accurate. 9 MR. HANNON: I will enunciate. 10 MR. ABRA: What about climate change? Do 11 licences ever consider climate change? 12 MR. TOPPING: We would expect the 13 environmental licence to cover off the effects of 14 climate change. 15 MR. ABRA: Not the Water Power Act 16 licence? 17 MR. TOPPING: No, it basically gives the 18 right of use of water power, the waters and Crown 19 lands. 20 MR. ABRA: The Manitoba's Principles and 21 Guidelines of Sustainable Development you're familiar 22 with? 23 MR. TOPPING: Yes. 24 MR. ABRA: When Water Power Act licences 25 are given, do the terms and conditions take into 5220 1 consideration at all those Principles of Sustainable 2 Development? 3 MR. TOPPING: I would expect under the 4 environmental licence, there will be a requirement 5 that other statutes, other legislation will be 6 complied with as a term and condition under that. 7 MR. ABRA: That's again not something 8 that is normally put into the Water Power Act 9 licence? 10 MR. TOPPING: That is a good point. The 11 Sustainable Development Act is early 1990s and we 12 haven't issued a licence prior to that. 13 MR. HANNON: There hasn't been any new 14 Water Power Act licence issued. 15 MR. ABRA: Since the Sustainable 16 Development Statute? 17 MR. TOPPING: That's correct. 18 MR. ABRA: Okay, thank you. The Water 19 Rights Act, what is it? 20 MR. TOPPING: Sorry, I didn't hear. 21 MR. ABRA: The Water Rights Act? 22 MR. TOPPING: Oh, the Water Rights Act 23 has two components to it. It can deal with the 24 allocation of water for domestic, industrial, 25 municipal, agricultural, all uses of water. And the 5221 1 allocation -- of course water is vested in the Crown 2 so the allocation of that water is dealt with through 3 the Water Rights Act. 4 The other aspect of the Water Rights Act, 5 it does allow the construction of water works, water 6 control works such as ditches, dikes, diversions, 7 control structures and that sort. And it gives the 8 province the capability of licensing those works. 9 The Water Rights Act is administered by 10 the Department of Water Stewardship of which I have 11 the delegated authority for issuing licences under 12 that Act. 13 MR. ABRA: Under the Water Rights Act as 14 well? 15 MR. TOPPING: Under the Water Rights Act. 16 MR. ABRA: Are there any approvals under 17 the Water Rights Act required for a project such as 18 Wuskwatim? 19 MR. TOPPING: I would expect the 20 construction site would have a water withdrawal 21 requirement for use of water. 22 MR. ABRA: What's the process in that 23 regard then? Is an application made under the Water 24 Rights Act to your section? 25 MR. TOPPING: We would expect the 5222 1 proponent, once it gets its environmental licensing 2 and water power interim licence in place, to make 3 application for a water rights licence. 4 MR. ABRA: And taking a look at a project 5 such as Wuskwatim, can you give us some idea of what 6 typical terms and conditions might be in a Water 7 Rights Act licence? 8 MR. TOPPING: Well, maximum withdrawal of 9 quantities of water from the water source. I would 10 expect the environment licence would cover off the 11 treatment facilities required for returning that 12 water -- for discharge of that water back into that 13 potential water course. But it does deal with the 14 rate of withdrawal and the maximum annual withdrawal 15 of volumes. 16 MR. ABRA: And one other area, sir, to 17 change direction, that relates to emergency draw 18 downs and Hydro's application to you related for the 19 interim licence does have reference to emergency draw 20 downs from the forebay if there's a requirement 21 throughout the system; am I correct? 22 MR. TOPPING: That is correct. 23 MR. ABRA: Is your department consulted 24 at all when emergency draw downs take place or Hydro 25 thinks they are necessary? 5223 1 MR. TOPPING: Yes. Hydro will give us 2 advance notification of any emergency withdrawals if 3 required. 4 MR. ABRA: Okay. And is the ultimate 5 decision yours or your department's then as to 6 whether they can proceed with an emergency draw down 7 or not? 8 MR. TOPPING: That's correct. 9 MR. ABRA: So obviously you are consulted 10 and have decision-making power in that regard? 11 MR. TOPPING: That's correct. 12 MR. ABRA: And is one of the issues that 13 you take into consideration in deciding whether or 14 not an emergency draw down should be permitted as to 15 how many there's been we'll say during the course of 16 a year or a recent period of time or whatever? 17 MR. TOPPING: We would be concerned with 18 downstream impacts, upstream impacts and what 19 emergency notification requirements may be required 20 for -- 21 MR. ABRA: For those affected? 22 MR. TOPPING: For those affected, yes. 23 MR. ABRA: If I might just have a moment, 24 Mr. Chairman, please? 25 THE CHAIRMAN: While Mr. Abra is having 5224 1 that extra moment, under the Water Power Act, Hydro 2 pays a rental fee to the province? 3 MR. TOPPING: That is correct, for both 4 water that goes through the turbines and for Crown 5 land. 6 THE CHAIRMAN: Okay. You just referred 7 to the Water Rights Act. That applies to many other 8 users. Do they pay a rental fee? 9 MR. TOPPING: There is an industrial 10 charge under the Water Rights Act. 11 THE CHAIRMAN: Which applies to, give me 12 examples. 13 MR. TOPPING: The Brandon -- the Hydro 14 thermal generation station at Brandon for water 15 cooling pays under the Water Rights Act for 16 industrial usage. 17 THE CHAIRMAN: Okay. There are many 18 other industrial users in the province. Do they also 19 pay? To give you an example, food processors, for 20 instance? 21 MR. TOPPING: Well, it depends if they 22 are on a municipal system. Like Simplot is on a 23 municipal system, so they pay to the municipality. 24 THE CHAIRMAN: Are there other users 25 other than Hydro, for instance, who pay a rental fee 5225 1 for the use of water besides those that pay to the 2 municipality? 3 MR. TOPPING: Yes, there are others. 4 THE CHAIRMAN: Would, for instance, the 5 farming community be paying for water they use for 6 irrigation? 7 MR. TOPPING: I didn't hear that. Which 8 community? 9 THE CHAIRMAN: Farming community that use 10 water for irrigation. Do they pay a fee? 11 MR. TOPPING: At the present time, there 12 is no fee for agricultural usage of water. 13 THE CHAIRMAN: Are there other users that 14 can use water in substantial, I'm referring to 15 substantial quantities like that, that don't have to 16 pay a fee? 17 MR. TOPPING: Yes. Another example would 18 be municipalities and cities. 19 THE CHAIRMAN: Yes, but they do charge a 20 fee to those who use the water? 21 MR. TOPPING: I thought we were talking 22 about a fee under the Water Rights Act. 23 THE CHAIRMAN: That's right. 24 MR. TOPPING: Which is for the 25 consumption of water? 5226 1 THE CHAIRMAN: Yes. 2 MR. TOPPING: Or use of water. 3 THE CHAIRMAN: So in effect, you are 4 correct, they don't pay a fee to the province? 5 MR. TOPPING: That's correct. 6 THE CHAIRMAN: A while ago, you said I 7 think in a reply to Abra that in the process of 8 obtaining an interim licence under the Water Power 9 Act, that will be sometime before Manitoba Hydro can 10 obtain or in fact, yes, obtain such an interim 11 licence because for one thing, you will review the 12 CEC report and see what it has to say. And you said 13 that also Hydro had to, I'm not sure, provide 14 additional filings or meet certain conditions? 15 MR. TOPPING: Yes. Hydro also has some 16 undertakings to satisfy the Water Power Act. 17 THE CHAIRMAN: Can you talk about that? 18 MR. TOPPING: I can if I can refer to my 19 notes. One of the criteria that are used to 20 determine if the licence should be issued is under 21 Section 18 in the regulation which provides that the 22 Minister may issue an interim licence with the 23 approval of the Lieutenant Governor in Council where 24 the Minister is in the opinion that (A) the design 25 will accomplish the purpose intended. The proposed 5227 1 development is feasible and practical. The proposed 2 development will accord the most beneficial 3 utilization and the resources of the stream. And the 4 proposed development is of the best possible 5 development in the public interest. This is one 6 undertaking we will be expecting from Hydro. And 7 that's one example. 8 THE CHAIRMAN: So in essence, the EIS 9 documents filed by Hydro in which this criteria, for 10 instance, are mostly or may be all answered would not 11 be, per se, sufficient to meet these criteria? 12 MR. TOPPING: The information may be 13 contained in the environmental assessment study. But 14 the province will be expecting another independent 15 report that will cover that off. Manitoba Hydro is 16 also required to table preliminary drawings of the 17 project for review by the department. 18 THE CHAIRMAN: And all of these are 19 required before work can begin on the project? 20 MR. TOPPING: That's correct. 21 THE CHAIRMAN: Okay. Thank you. 22 MR. ABRA: Mr. Chairman, I do have one 23 other area that I wish to ask a question on. 24 The interim licence for the Churchill 25 River Diversion states that regulations of the day 5228 1 will be in effect. Now, what new legislation has 2 come into effect since 1973 that may be relevant to 3 the granting of the final licence? There has been, I 4 assume, some regulations or statutes obviously that 5 come into play over that 20 year period or almost 30 6 year period that might have some input with respect 7 to CRD in the final licence? I don't know if you can 8 think of them off the top of your head. You may not 9 be able to or Mr. Hannon. 10 Can you give us an undertaking in that 11 regard, sir, to consider what statutes or regulations 12 or changes have taken place that fall under the term 13 regulations of the day? 14 MR. HANNON: Mr. Abra, you're referring 15 to a specific provision of the CRD licence? 16 MR. ABRA: That's right. 17 MR. HANNON: I'm sure we can give you the 18 undertaking. 19 20 (UNDERTAKING MC-75: Advise what statutes or 21 regulations or changes have taken place that fall 22 under the term regulations of the day) 23 24 MR. HANNON: I have a copy of the licence 25 with me and I'd just like to check that term. Mr. 5229 1 Abra, Section 20 of the licence says this, and I'd 2 like to know if that's the provision you're referring 3 to. It says, 4 "This interim licence is issued upon 5 the expressed condition that it shall 6 be subject to the provisions of the 7 regulations and all amendments thereto 8 as may be made from time to time." 9 Is that the provision? 10 MR. ABRA: Yes, it is, Mr. Hannon. 11 MR. HANNON: I think we can answer. I 12 believe the term "the regulations" is intended to 13 refer to the Water Power Regulation at that time. 14 And I'm not sure, because it's referred to in the 15 third preamble paragraph of the licence, where the 16 term "the regulations" is referred to. It refers to 17 Manitoba regulation 95.45 and all amendments thereto. 18 MR. ABRA: Okay. 19 MR. HANNON: As a lawyer, I'd offer the 20 observation that we have a redundancy since it's 21 defined as including amendments but I didn't draft 22 that licence. 23 MR. ABRA: You'd be more careful. 24 MR. HANNON: I believe it's referring to 25 the Water Power Regulation as it has been amended 5230 1 from time to time. 2 I can give one example of where there has 3 been an amendment and that is in the fee structure 4 including the water power rentals and Crown land use 5 rentals which are changed from time to time. And so 6 that would be an example of an area where the 7 amendments, from time to time, would be expected to 8 apply. 9 MR. ABRA: Okay. But you'll consider the 10 issue of whether there have been any amendments to 11 the regulation since 1973? 12 MR. HANNON: We can do that. I'm not 13 sure I'm going to be able to advise specifically as 14 to where all the amendments have been. I am not sure 15 if I can undertake to be that specific. 16 MR. ABRA: I quite understand that. 17 18 (UNDERTAKING MC-76: Advise whether there have been 19 any amendments to the regulation since 1973) 20 21 MR. HANNON: I can say, however, that 22 there haven't been very many amendments to that 23 regulation. Certainly in my experience, that 24 regulation has been relatively unamended since that 25 time. But we can undertake to see if there's 5231 1 anything specific that we may not know right now. 2 MR. ABRA: That's fine. Thank you very 3 much. Thank you, Mr. Topping, for your assistance, 4 Mr. Hannon, thank you. 5 THE CHAIRMAN: Thank you. Before we 6 continue with questions, we shall take a break at 7 this time. It's basically 27 after or somewhere 8 around there. If we can be back by 20 to. 9 10 (PROCEEDINGS RECESSED AT 10:27 A.M. and 11 RECONVENED AT 10:47 A.M.) 12 13 THE CHAIRMAN: Okay. We continue with 14 the questions. Mr. Williams. 15 MR. WILLIAMS: Yes. Good morning, Mr. 16 Chair, members of the Panel and Mr. Topping and Mr. 17 Hannon. My name is Byron Williams for the record. I 18 am an attorney with the Public Interest Law Centre 19 representing the Consumers Association of Canada and 20 the Manitoba Society of Seniors. 21 Mr. Topping and Mr. Hannon, we've kind of 22 discussed, during the break, some of the issues that 23 I'm going to be canvassing with you. And just for 24 the panel's benefit, I am primarily seeking 25 clarification in terms of my client's understanding 5232 1 of the licensing regime around the Churchill River 2 diversion. And so hopefully, this will be of 3 assistance in some of the recommendations my clients 4 can make in final argument. 5 And to Mr. Topping, you discussed with 6 the panel, Mr. Abra and I believe Mr. Mayer some of 7 the hydroelectric operations in the north which had 8 been issued final licences under the Water Power Act. 9 And I wonder if you'd be prepared to accept, subject 10 to check, that two other Hydro operations which have 11 received final licences are Grand Rapids and Kettle 12 Rapids? 13 MR. TOPPING: I'll ask Mr. Hannon to 14 respond to that. He's done some research on that. 15 MR. HANNON: I believe that's correct. 16 MR. WILLIAMS: Thank you. I'm going to 17 go back to the Water Powers Act in a moment. But you 18 were speaking in terms of the Wuskwatim project in 19 terms of the licensing regime under the Water Rights 20 Act. And in terms of the Churchill River Diversion, 21 my understanding that for some period of time, a 22 licence also was effective with regard to it under 23 the Water Rights Act; is that right? 24 MR. TOPPING: I guess the question is 25 yes -- the answer is yes, there was a Water Rights 5233 1 licence issued for the Churchill River Diversion 2 project. 3 MR. WILLIAMS: And my understanding is 4 that the licence under the Water Rights legislation 5 expired in August 2003; is that correct? 6 MR. TOPPING: To my knowledge, that's 7 correct. 8 MR. WILLIAMS: And again, for my client's 9 benefit, my understanding is that the position of 10 your branch would be that it's no longer necessary to 11 hold the licence under the Water Rights legislation 12 because of Section 3.2 of the Water Rights Act; is 13 that right? 14 MR. TOPPING: That's correct, yes. We're 15 just going to confirm what Section 3.2 says. 16 MR. HANNON: Just for the record, 17 Subsection 3.2 of the Water Rights Act says that 18 subsection 1, which is the section providing for 19 licences, does not apply to a person exercising a 20 right under any other Act of the legislature or Act 21 of parliament. And so I believe Mr. Williams is 22 asking us and we are I think agreeing with him that 23 because there is a licence to authorize this very 24 thing, being the interim licence for Churchill River 25 Diversion, there's no requirement for an additional 5234 1 licence for a diversion of water under the Water 2 Rights Act. 3 MR. WILLIAMS: Now, if I was unlike 4 myself, if I was a smart lawyer, that might be 5 something though that a smart lawyer might think 6 worthy of challenging and asking whether there 7 properly should be a licence under the Water Rights 8 Act. Would that be right? 9 MR. HANNON: No. A smart lawyer would 10 not ask that question. 11 MR. ABRA: That's an oxymoron. 12 MR. WILLIAMS: Thank you for that. And 13 generally these questions are in terms of short 14 snappers. Just with respect to you, Mr. Mayer, and I 15 think it will be fairly short. In terms of the 16 Augmented Flow Program, my understanding is that the 17 branch believes that its authority to issue kind of 18 authorizations under the Augmented Flow Program stem 19 from Section 20 and Section 39 of the Regulation; is 20 that right? I believe that was your testimony in 21 direct? 22 MR. TOPPING: That was my testimony, yes. 23 MR. WILLIAMS: So in effect, what you're 24 saying is that under Section 39, the applications 25 under the Augmented Flow Program or applications to 5235 1 amend the interim licence; is that right? It's not 2 just a deviation, it's an amendment to the licence, 3 would that be fair? 4 MR. HANNON: I think what Mr. Topping was 5 saying, that he considers there to be authority under 6 Section 20 and Section 39 for the decisions that have 7 been made on an annual basis to provide for the 8 Augmented Flow Program. Whether that constitutes an 9 amendment of the licence or an application, you may 10 interpret that from that. But I think he said that 11 he sees that as the authority. 12 MR. WILLIAMS: Okay. And Section 72(c) 13 doesn't apply because we're speaking to an interim 14 licence rather than the final licence. Would that be 15 right in your view? 16 MR. HANNON: 72(c) of the Regulation says 17 this. It says, 18 "Every licence shall be deemed to have 19 been executed on the expressed 20 condition that the licensee shall (c) 21 at no time cause or permit the surface 22 level of waters of any river or stream 23 operated by the licensee to be raised 24 or lowered beyond the limits which 25 shall be fixed from time to time by 5236 1 the Minister or a person authorized by 2 the Minister." 3 I needed to quote that just so it's 4 understood. It doesn't say final licence. So I am 5 not sure we're in a position to say for sure that 6 doesn't apply. 7 MR. WILLIAMS: And you don't have an 8 opinion on that? 9 MR. HANNON: I am not prepared to offer 10 opinions. 11 MR. WILLIAMS: Fair enough. 12 MR. HANNON: But I do note that it does 13 say every licence and doesn't restrict it to interim 14 or final. 15 MR. WILLIAMS: Now, Mr. Topping, in your 16 Power Point presentation or your slide presentation, 17 you were referring to some of the elements that must 18 be incorporated in an interim licence. And one I 19 don't believe you referred to was the one that is 20 found in section 19(j)(ii) of the Regulation. I 21 wonder if you can turn there? 22 MR. TOPPING: Of the licence? 23 MR. WILLIAMS: Of the regulation, excuse 24 me. 25 MR. HANNON: 19(j)(ii). 5237 1 MR. WILLIAMS: Do you have that, Mr. 2 Hannon? 3 MR. HANNON: Yes. It starts with the 4 phrase "A brief description of the undertaking"? 5 MR. WILLIAMS: Yes, that's right, yes. 6 And I'll read it in. And I just would, at the end, 7 also get you to confirm that that's something that 8 would be expected to be included in an interim 9 licence. 10 (j) and then (ii). 11 "A brief description of the 12 undertaking in respect of which such 13 final licence is to be issued 14 including the use which may be made of 15 the power or storage where the power 16 may be sold or delivered to or used by 17 other than the applicant. And if so, 18 the territory with which such sale, 19 delivery or transfer of the right of 20 use may be exercised." 21 And my understanding would be, and I'd 22 ask you to confirm, that that would also be something 23 which would be addressed in terms of an interim 24 licence; is that correct? 25 MR. HANNON: Yeah. Section 19, the whole 5238 1 section 19 as you can imagine it, since you're 2 quoting from (J), there's a fairly long list of 3 things, deals with things that are in an interim 4 licence. And it says that every interim licence for 5 the development of a water power or storage 6 undertaking under this regulation shall set out 7 particulars and lay down requirements insofar as 8 applicable to the case with respect to the following 9 matters. So those items would be included insofar as 10 applicable to the case. 11 MR. WILLIAMS: Okay. And I take it you 12 don't -- I am again referring to the Churchill River 13 Diversion, and I wonder if you would accept, subject 14 to check, that the regulation in effect at that point 15 in time was Manitoba Regulation 95, Manitoba Water 16 Power Regulation pursuant to the Water Power Act? 17 Would you accept that subject to check? 18 MR. HANNON: I think we would accept that 19 subject to check. 20 MR. WILLIAMS: Okay. And would you also 21 accept, subject to check, that a similar provision 22 existed in the interim licensing procedure requiring 23 a brief description of where power may be sold or 24 delivered to or used by other than the applicant? 25 And if so, the territory within with such sale, 5239 1 delivery or transfer may be exercised? 2 MR. HANNON: I think we would accept 3 that, again subject to check. As I said earlier, 4 there haven't been many amendments made to the 5 regulation. So I haven't checked all of them. But I 6 certainly would accept that subject to check. 7 MR. WILLIAMS: And why I'm asking this, 8 Mr. Topping and Mr. Hannon and through you to the 9 panel is that I want you to assist me in 10 understanding the initial application and the interim 11 licence of May 11, 1993 in terms of the subjects. 12 And I've taken the liberty of providing -- 13 MR. HANNON: 1973. 14 MR. WILLIAMS: 1973, excuse me. I've 15 taken the liberty of providing you with the 16 application submitted by Manitoba Hydro to the Water 17 Powers Branch at that time. And that application is 18 dated the 30th day of April 1973. 19 Mr. Chair, I do have copies if the panel 20 becomes interested. I don't want to hand them out if 21 I'm not twigging your interest or mine. 22 And I'd ask you to turn to the very last 23 page of that application. And do you have that, Mr. 24 Hannon and Mr. Topping? 25 MR. HANNON: Yes. Yes, we do. 5240 1 MR. WILLIAMS: And I am referring to the 2 application, not the licence. 3 MR. HANNON: Yeah. 4 MR. WILLIAMS: Okay. And you'll see that 5 it provides that, 6 "The construction of the diversion for 7 which the licence is required would be 8 for the purpose of increasing the firm 9 power which could be generated at the 10 Kettle generating station and future 11 plant stations on the Nelson River and 12 on the Rat River and the Burntwood 13 River. The additional firm power will 14 be used to meet the rapidly increasing 15 power demand in Manitoba. This firm 16 power will also minimize the use of 17 costly coal-fired energy generation." 18 Can you confirm that I have read that 19 correctly? 20 MR. TOPPING: Yes, we can. 21 MR. WILLIAMS: So just from my 22 understanding, it appears that at the time the 23 application was made, the purpose of the poundage and 24 impoundage and diversion in terms of the South Indian 25 Lake was for domestic purposes at that time, would 5241 1 that be fair, based upon that application? 2 MR. HANNON: Well, I think, you know, you 3 read it into the record and it probably speaks for 4 itself better than either Mr. Topping's or my 5 interpretation of what that means. 6 MR. WILLIAMS: Okay. And again, I've 7 taken again over the break of providing you with an 8 excerpt from an Act respecting the provincial water 9 powers, the legislation from 1973. Do you have that, 10 Mr. Topping and Mr. Hannon? 11 MR. HANNON: Yes, we do and we thank you 12 for providing that to us. 13 MR. WILLIAMS: And you'll see that 14 section 7.3 provides that, 15 This shall be implied in every... 16 and I am going to paraphrase here, 17 ...in every licence granted by the 18 Crown under this Act or regulation for 19 any interest in water, power, land 20 required or necessary for the 21 creation, protection or development 22 thereof in addition to such other 23 provisions as are contained in the 24 regulations or in the conditions under 25 which the licence was disposed of. A 5242 1 provision binding the permittee, 2 licensee or lessee that no power 3 generated in Manitoba from any 4 provincial water power shall be 5 exported across the international 6 boundary. 7 Did I paraphrase that roughly correctly, 8 Mr. Hannon? 9 MR. HANNON: I thought you read it 10 exactly correctly. 11 MR. WILLIAMS: Well that's even better. 12 And so I guess the question then becomes, and again 13 this is to assist my client in their final argument, 14 at the time the application was filed, it appears 15 that the purpose was for domestic use. At the time 16 the legislation at that time expressly made it a 17 condition of the licence that it wasn't for export. 18 And I guess the question is has Manitoba Hydro come 19 to the water branch since that point in time to amend 20 the licence? And I think you know the answer to 21 this. 22 MR. HANNON: Well, I don't know if 23 Manitoba Hydro has come to amend the licence but I 24 can say that the licence itself has not, on its 25 terms, been amended since 1973 except insofar as the 5243 1 Augmented Flow Program applies annually. 2 You were, Mr. Williams, kind enough to 3 identify that in 1980, that provision about exporting 4 power across the international boundary was repealed. 5 And so consequently, at that time, that implied 6 condition in the licence, it was also in our view 7 repealed. 8 MR. WILLIAMS: And I guess my question to 9 you, Mr. Topping, and if I were, which I'm not, a 10 smart lawyer representing someone who is interested 11 in challenging the Churchill River Diversion, at the 12 time in 1973, you were told, according to the 13 application, that it wasn't for the export power. In 14 fact, that couldn't even be contemplated at the time. 15 So it's never been before the Water Power Branch 16 considering whether or not that licence should be 17 amended. 18 And I wonder if you would deem it prudent 19 or appropriate to look at the licence in that context 20 and perhaps clarify that it is for the purposes of 21 domestic and for the purposes of export? 22 MR. HANNON: Well, I think our view is 23 that the licence speaks for itself in accordance with 24 the legislative framework. And so whereas there was, 25 presumably before 1980, this implied provision that 5244 1 isn't there now, and so the licence speaks for itself 2 on its terms. 3 And indeed, the effect of the decision of 4 the legislature to repeal that provision in 1980 was 5 to presumably say that the legislature no longer 6 considered that as a requirement for specific 7 licences. 8 MR. WILLIAMS: So you are not concerned 9 in any way whatsoever that the licences currently 10 constituted might be vulnerable on those grounds? 11 MR. HANNON: I don't think we'd offer an 12 opinion on that. But the licence is there and it, we 13 think, speaks for itself. 14 MR. WILLIAMS: Thank you, Mr. Chairman. 15 Those are my questions. 16 THE CHAIRMAN: Thank you, Mr. Williams. 17 Other questions? Yes, Mr. Hannon? 18 MR. HANNON: Mr. Chair, may I add in 19 response to a question before the break, direct the 20 panel to section 81 and following of the Water Power 21 Regulation which deals specifically with enforcement 22 of the water power licences. And I won't read it in. 23 It's actually quite lengthy. But it does set out a 24 process providing for penalties for default by a 25 licensee which includes, among other things, a 5245 1 reference of matters to court. And so it's spelled 2 out in some detail over about two pages of the 3 regulation. 4 THE CHAIRMAN: And that has been in force 5 since? 6 MR. HANNON: As far as I'm aware, since 7 before the Lake Winnipeg Regulation and Churchill 8 River Diversion licences were in place. So I don't 9 believe there's been an amendment to those. 10 THE CHAIRMAN: Thank you. Yes, we have 11 some more questions. Would you identify yourselves, 12 please, and proceed. 13 MS. TEILLET: My name is Jean Teillet. 14 I'm here, legal counsel, representing the Manitoba 15 Metis Federation. And with me, I have Dan Benoit. 16 I just wanted to start by thanking the 17 panel for the questions earlier that sort of helped 18 to clarify the legal situation here, but I have a few 19 more. 20 Can you tell me, either Mr. Topping or 21 Mr. Hannon, when the actual split happened where the 22 Department of Water Stewardship was actually set up? 23 MR. TOPPING: I believe it was last fall, 24 2003. 25 MS. TEILLET: November or something like 5246 1 that? 2 MR. TOPPING: Yeah, November. 3 MS. TEILLET: I don't need an exact date. 4 So in other words, this process though was well under 5 way. This environmental assessment was well under 6 way when the split happened between the departments? 7 MR. TOPPING: Yes, it was initiated at 8 that time under the Department of Conservation. 9 MS. TEILLET: Right. And at that time, 10 when this environmental assessment process began, 11 this harmonized process, the Minister of Conservation 12 had responsibility under the Water Power Act, under 13 the Environment Act and under the Sustainable 14 Development Act and the Water Rights Act? That was 15 all under Conservation at that time; is that correct? 16 MR. TOPPING: That is correct, yes. 17 MS. TEILLET: And now, who's got what? 18 Where does the sustainable -- like is it a neat split 19 or is there overlap? 20 MR. TOPPING: The Water Stewardship has 21 the Water Power Act and the Water Rights Act. 22 MS. TEILLET: Yes? 23 MR. TOPPING: The Sustainable Development 24 Act and the Environment Act still reside with 25 Conservation. 5247 1 MS. TEILLET: And maybe the second half 2 of my question, is it a neat split or are there 3 overlapping responsibilities? 4 MR. TOPPING: No, there are no 5 overlapping responsibilities in the administration of 6 those Acts. 7 MS. TEILLET: Okay. Thanks for 8 clarifying that. So what was known before as the 9 Water Branch under Manitoba Conservation, is that in 10 Water Stewardship now? 11 MR. TOPPING: That is now wholly within 12 Water Stewardship. 13 MS. TEILLET: Now, my understanding also 14 was that Manitoba Conservation had the authority for 15 consultation. The Section 35 consultation was under 16 Manitoba Conservation when this all began? 17 MR. TOPPING: That's correct. It was 18 felt that actually the Water Branch under the Water 19 Power Act was likely the trigger for Aboriginal 20 consultations as it was allocation on the resource. 21 MS. TEILLET: And now that there's this 22 split, how did the responsibility get split? Is the 23 consultation still being handled by Conservation or 24 do you have some authority or is it overlapped? 25 MR. TOPPING: Water Stewardship has the 5248 1 line responsibility in the Aboriginal consultations. 2 It is directed by a multi-departmental steering 3 committee and also in partnership with the Department 4 of Fisheries and Oceans. So Conservation still sits 5 on the Wuskwatim Aboriginal consultations steering 6 committee. 7 MS. TEILLET: So Water Stewardship is on 8 it as well? 9 MR. TOPPING: Water Stewardship co-chairs 10 it with the Department of Fisheries and Oceans. 11 MS. TEILLET: And are you yourself 12 directly involved in it? 13 MR. TOPPING: Actually I'm the co-chair 14 for Water Stewardship. 15 MS. TEILLET: I just wanted to make sure 16 we were all still on the right information here. So 17 you are the co-chair and responsible for implementing 18 the policy that had been developed or were you 19 responsible for also developing the consultation 20 policy? 21 MR. TOPPING: Well, more in the process 22 and how the government was going to conduct 23 meaningful consultations with Aboriginal peoples. 24 MS. TEILLET: And so are you able to 25 speak to that process? 5249 1 MR. TOPPING: To the best of my ability. 2 MS. TEILLET: Thank you. Okay. Now, my 3 understanding is that I understand that you are in 4 Water Stewardship now but you were in Conservation? 5 MR. TOPPING: Sure was. 6 MS. TEILLET: So you can speak a little 7 bit about the, I hope -- I am going to ask you 8 anyway. Can you speak to the administration of 9 the -- maybe I'll quit my little introduction and get 10 right to the meat here. I was actually thinking that 11 Mr. Williams was talking about snappers and I thought 12 we were getting into fish jokes and I'll try not to 13 flounder around here. 14 MR. TOPPING: No red herrings. 15 MS. TEILLET: I'll keep it all to scale, 16 right. Okay. The Environment Act talks, one of the 17 terms and conditions of getting a licence under the 18 Environment Act is that they have to identify and 19 address, and I'll quote, "potential effects of the 20 development"? 21 MR. TOPPING: You were saying that's 22 under the Environment Act? 23 MS. TEILLET: Yes, that's my 24 understanding, is that that's one of the terms and 25 conditions of the Environment Act. And it's to 5250 1 identify and address -- in order to they apply for a 2 Licence under the Environment Act -- 3 MR. TOPPING: Yeah. 4 MS. TEILLET: -- they have to identify 5 and address potential effects. And my understanding 6 of the Clean Environment Commission, which is also 7 created under the Environment Act, as I understand 8 it, they are to consider potential environmental, 9 socioeconomic and cultural effects of the 10 construction and operation of these proposals. And 11 so I'm wondering if you can help me. And I don't 12 know if you are the right person even to ask this 13 question. But is there a difference between the 14 potential effects under the Environment Act and the 15 potential environmental socioeconomic and cultural 16 effects that the CEC? Are they considered separate 17 and distinct inquiries or is what they are doing the 18 same as what you are doing? I'm trying to figure out 19 how the process works. 20 MR. TOPPING: Well firstly, Heather 21 Leonoff did quite a detailed presentation on the 22 section 35 and the subsequent Court of Queen's Bench 23 court cases that have directed or actually set up the 24 requirement for consultations of First Nations and 25 Aboriginal peoples. The Province of Manitoba has 5251 1 decided that, yes, they are two separate processes. 2 In fact, it's a government-to-government consultation 3 regarding in which we are seeking to -- the 4 objectives of the consultation is to get 5 clarification from Aboriginal peoples as to what the 6 impacts of the proposed project would be on their 7 potential Aboriginal or treaty rights. 8 As I say, it is a 9 government-to-government consultation and we do see 10 that as a separate process as it is an allocation of 11 the resource which could have impacts on the 12 traditional use of lands and the waters. 13 MS. TEILLET: I guess I thought I heard 14 you say earlier that Hydro, the proponent or part of 15 the proponents here, they've prepared their 16 Environmental Impact Statement and this hearing is 17 happening now, a public hearing. And I thought I 18 understood you to say that Hydro is then going to 19 prepare another report that will go, after all of 20 this, to the Minister. Was I correct in 21 understanding what you said? 22 MR. TOPPING: That relates meeting the 23 requirements of satisfying an interim licence under 24 the Water Power Act. 25 MS. TEILLET: Right. But I mean this 5252 1 whole process is in aid of them getting their interim 2 licence; is that not correct? I mean that's the 3 whole point of the environmental assessment? 4 MR. TOPPING: No, it's a separate process 5 under separate statute. The Water Power Act is a 6 separate statute from the Environment Act. 7 MS. TEILLET: Okay. I do understand 8 that. But there are several licences that are going 9 to be issued here, right? I think you said there's a 10 licence under the Water Power Act and licence under 11 the Water Rights Act and a licence under the 12 Environment Act. All of those licences and probably 13 multiple permits for everything from building the 14 roads to sewage disposal and all kinds of things like 15 that. That's right, isn't it? Lots and lots of 16 authorizations? 17 MR. TOPPING: There are a number of 18 licences. 19 MS. TEILLET: Right. 20 MR. TOPPING: But the information 21 generated through this process will contribute to 22 part of the information required in meeting the other 23 licences. 24 MS. TEILLET: But I guess what I'm trying 25 to get at is there's going to be adaptations made to 5253 1 the licence or the -- you said they have just, I 2 thought you said May 6th, so last week they applied 3 for their interim -- 4 MR. TOPPING: No, no, 2003. 5 MS. TEILLET: So they have applied for 6 their licence already. And that application I assume 7 is on the record? 8 MR. TOPPING: It's a public -- 9 MS. TEILLET: It's a public document 10 anyway. And so you are saying that's not the subject 11 of this review. Is there an application for an 12 interim or a licence under the Environment Act that 13 is already in place? 14 MR. HANNON: Is there a licence under the 15 Environment Act? 16 MS. TEILLET: Or an application for one 17 in place? 18 MR. HANNON: Yes. 19 MS. TEILLET: And that is what the CEC is 20 looking at? 21 MR. HANNON: Right. 22 MS. TEILLET: Not the licence application 23 that you are talking about? 24 MR. HANNON: That's right. 25 MR. TOPPING: That's correct. 5254 1 MS. TEILLET: Okay. And the 2 consultations that you do for the application for the 3 Environment Act licence and the consultations you do 4 for the Water Power licence and the consultations for 5 the Water Rights licence, those are being handled by 6 this joint committee or are they -- 7 MR. HANNON: That consultation really 8 relates only to the application for the Water Power 9 licence, not the Environment Act licence. And nor is 10 there any particular Water Rights Act licence. 11 MS. TEILLET: I thought you said there 12 was a Water Rights Act licence for the construction 13 of the project? I thought -- 14 MR. TOPPING: For the construction camp, 15 to withdraw the water for the functions at the 16 construction camp. 17 MS. TEILLET: So that's sort of small 18 potatoes? 19 MR. TOPPING: Very small. 20 MS. TEILLET: Okay. And I'm sorry, Mr. 21 Hannon. Can you just clarify that for me? Are you 22 saying the consultation is with respect to the Water 23 Power licence, not with respect to the Environment 24 Act licence? 25 MR. HANNON: That's correct. 5255 1 MS. TEILLET: Is that correct? 2 MR. HANNON: Yes, that's correct, yes. 3 And Mr. Topping points out and related to 4 applications for Crown land authorization, 5 particularly associated with the transmission line. 6 MS. TEILLET: And can you explain to me 7 what the reasoning is behind that because I'm just 8 not clear on why. 9 MR. HANNON: Well, the reasoning is that 10 the view that Manitoba Water Stewardship and the 11 Government of Manitoba have taken is that the 12 application for Water Power licence is directed to 13 the Crown. And the Crown makes a decision in 14 accordance with the Water Power Act and regulations 15 to grant the right to use Crown lands, waters and 16 water powers associated with the Water Power 17 undertaking. And that that decision by the Crown, if 18 the Crown chooses to make it, could potentially have 19 an impact on Aboriginal rights or Treaty rights of 20 Aboriginal communities. And the decision was made 21 that it would be a good practice to start a 22 consultation process with communities that might be 23 affected. 24 MS. TEILLET: So it's sort of the, if we 25 could put it this way, the hardware, more or less the 5256 1 land and the water? 2 MR. HANNON: That's right. 3 MS. TEILLET: Not the environmental 4 effects on those land and water? 5 MR. HANNON: It's the decision relating 6 to the allocation of the land and the water. If 7 there are environmental effects or impacts resulting 8 from the allocation, from the fact that a proponent 9 may be getting an allocation, that those matters 10 would be considered in the consultation with the 11 Aboriginal communities. But that is by the 12 Government, by the Crown with the Aboriginal 13 community as opposed to this process which deals 14 generally with environmental impacts including 15 socioeconomic impacts as it relates broadly to all 16 communities, including Aboriginal communities but not 17 only Aboriginal communities. 18 MS. TEILLET: Thank you for clarifying 19 the reasoning. That's been a bit of a mystery. 20 Now, so the sufficiency of the 21 Environmental Impact Statement from the -- you are 22 speaking about the water licence now, application. 23 The sufficiency of that with respect to the 24 consultation under that and whether the EIS actually 25 meets the requirements, is that a part of your 5257 1 consideration or is that you don't consider that 2 Hydro itself has that responsibility? I'm not sure 3 if I asked that clearly or not. 4 MR. TOPPING: Well, I do -- any 5 recommendations or terms and conditions that are put 6 on the Environment Act licence may go towards some of 7 the mitigation measures that may satisfy the impacts 8 to Aboriginal communities that could be impacted by 9 the project. So that would be part of the 10 consideration for mitigation of those impacts. 11 MS. TEILLET: I guess what I'm trying to 12 figure out is does your department have any or 13 consider itself to have any responsibility to 14 determine the deficiencies in the EIS with respect to 15 consultation? Or you don't look at what they've said 16 at all, you're carrying out your own program and 17 consultations? 18 MR. HANNON: The EIS can be a useful tool 19 to provide information to the participants to the 20 consultation process. The consultation process, 21 though, is not designed to evaluate the completeness 22 or effectiveness of the EIS. 23 MS. TEILLET: Okay. 24 MR. HANNON: So if there are deficiencies 25 and Aboriginal communities said there were 5258 1 deficiencies or perhaps through some other process 2 there were deficiencies, that presumably could be 3 considered. But that's not the objective of the 4 consultation process. The objective is, as I 5 understand it, to hear from Aboriginal communities, 6 to understand and document their concerns and 7 interests about the project and to take those 8 concerns into account in making decisions on the 9 Water Power and Crown land licensing applications. 10 MS. TEILLET: Just before I forget, I 11 just wanted to follow up on one question earlier 12 about the Churchill River Diversion licences. I 13 thought I understood you to say that Hydro has 14 indicated to you that they are going to apply for a 15 final licence after the Wuskwatim project. I'm just 16 curious why Wuskwatim? Why not Conawapa? Why not 17 the ones before? Do you have any idea what that's 18 all about? 19 MR. TOPPING: No, I do not have that, 20 the rationale of their -- of that statement. I 21 should say I do not have the rationale of why Hydro 22 is not applying until after the Wuskwatim process is 23 completed. 24 MS. TEILLET: Is there anything in your 25 law or regulations here that says that you cannot 5259 1 issue another licence to the same proponent when they 2 have outstanding obligations on previous licences? 3 Do you have anything like that? 4 MR. HANNON: Not that I am aware of, no. 5 MS. TEILLET: There's no policy, no law, 6 no regulation with that respect? So theoretically, a 7 proponent could keep applying for a million licences 8 and never fulfil the terms of any of them? 9 MR. HANNON: Well, we deal with reality 10 in terms of what's actually been applied for and the 11 requirements to meet regulatory and licence 12 conditions. So I'm not sure the hypothetical of a 13 million. I know there aren't a million licences. 14 MS. TEILLET: That may be true but it has 15 been 31 years. And you have issued more licences to 16 Hydro since the CRD? 17 MR. HANNON: There have been some 18 licences since 1973. 19 MR. TOPPING: It's beyond most of the 20 corporate history here. 21 MS. TEILLET: It's hard to go back 31 22 years even though some of us remember that. 23 Now, with respect to the consultation 24 with First Nation and Aboriginal communities, Mr. 25 Topping, my understanding from the previous testimony 5260 1 from Ms. Leonoff was that there was a decision made 2 by the Government of Manitoba to consult with 3 communities, what they called Aboriginal communities 4 and with First Nations and then with sort of other 5 publics or other interested bodies and you kind of 6 broke things down in that way. Is that a fair 7 assessment of what your understanding of how it was 8 broken down? 9 MR. TOPPING: Yeah, the intent of the 10 consultation is the target group is with Aboriginal 11 communities. 12 MS. TEILLET: And you see that as a 13 separate and -- a separate obligation from consulting 14 with the public at large? 15 MR. HANNON: Yes. 16 MR. TOPPING: Yes, we do. 17 MS. TEILLET: And the decision was made, 18 as I understand it, to consult with mayor and council 19 in these Aboriginal communities that are not on 20 reserve; is that correct? 21 MR. HANNON: My understanding is that the 22 decision was made to initiate contact as part of the 23 consultation process with the councils of non First 24 Nation communities in the area of the project. And 25 that once the contact is made, then that will assist 5261 1 in developing a consultation plan for that community. 2 MS. TEILLET: And as I understand it, 3 you're not finished with your consultation process; 4 is that true? 5 MR. TOPPING: Ms. Leonoff identified a 6 three-stage process. I won't go into detail but 7 we're in the middle of stage 2. 8 MS. TEILLET: And is the consultation 9 team or your committee open to changing and/or adding 10 to and adapting your consultation process as you move 11 through the process? 12 MR. HANNON: My understanding is that, 13 and this is happening for communities as I understand 14 it, is that a consultation plan is developed for 15 those communities. That includes a consideration of 16 how and which people should be involved in the 17 consultation process for the community as determined 18 by the community. And so they won't all be the same. 19 It depends on the community and what the interests 20 are in the community. 21 MS. TEILLET: And I understood Ms. 22 Leonoff to say that a decision had been made not to 23 consult with the Manitoba Metis Federation on the 24 provincial level. But she was I think -- I'm not 25 sure whether she was unwilling or she didn't actually 5262 1 answer the question of whether Manitoba Metis locals, 2 Metis Federation locals had been contacted. So could 3 you answer that question for me? I think we were 4 directed to ask you whether your team who was 5 actually implementing the consultation, have you 6 directly contacted the Manitoba Metis Federation 7 locals in the project area? 8 MR. TOPPING: Firstly, the province chose 9 to consult on a community basis. We have copied 10 correspondence to the Manitoba Metis Federation on 11 all pertinent correspondence on the activities of the 12 consultation process. If the community wishes 13 representation by MMF, we would invite that at the 14 local level. But it's the community's discretion in 15 terms of the communication protocol that's set up as 16 to how we will consult with that community and in the 17 manner we will consult with them. That's set up in 18 the communication protocol. 19 And to date under stage 2, a number of 20 the consultations we have had, MMF locals have been 21 at the consultations. 22 MS. TEILLET: Could you tell me where 23 that is? 24 MR. TOPPING: I can't give you a 25 precise -- 5263 1 MS. TEILLET: Could you undertake to 2 provide that information to us? 3 MR. TOPPING: I think I can, yes. 4 MS. TEILLET: Thank you. 5 6 (UNDERTAKING MC-77: Provide information regarding 7 MMF locals being present at consultations to date 8 under stage 2) 9 10 MS. TEILLET: And by that, when you say 11 the locals were there, do you mean that maybe a 12 member of the local was there or that say the local 13 was there and made a presentation? 14 MR. TOPPING: I understood that one of 15 the councils, Band councils had an MMF -- one of the 16 councils had an MMF representative on it. Probably a 17 Northern Affairs council actually. 18 MS. TEILLET: They had one member of the 19 MMF who was -- so one person who lived in that 20 community? 21 MR. TOPPING: I'll undertake to get 22 further details on that. 23 MS. TEILLET: Okay. But just to clarify, 24 would you consider that consultation with the 25 Manitoba Metis Federation if there was one Metis 5264 1 person who was sitting on that community council? 2 Would you consider that consultation with the Metis 3 community? 4 MR. TOPPING: Well, individuals in the 5 community can express their concerns of the project. 6 And as I say, the protocol sets out their ability to 7 engage in the consultation. 8 MS. TEILLET: If there was an off-reserve 9 Status Indian on the council, would you consider that 10 consultation with the First Nation? 11 MR. HANNON: I think our approach has 12 been to consult with communities. And so the issue 13 is is this an appropriate consultation with the 14 community and that's why a consultation plan has 15 developed involving community response. So the First 16 Nation being identified communities that are 17 consulted with and practice is to deal with the 18 council of the First Nation and again a plan devised 19 as to how to conduct the consultation. 20 MS. TEILLET: And so community for you is 21 defined as a geographic community. 22 MR. HANNON: Yes. 23 MS. TEILLET: And equates to sort of the 24 Northern Affairs communities? 25 MR. HANNON: We've contacted, as I 5265 1 understand, the Northern Affairs community as a 2 method of initiating the local community consultation 3 associated with the project. 4 MS. TEILLET: And if the information were 5 to come to this committee that is handling the 6 consultation, that a community might not necessarily 7 coincide with the geographic community, would you be 8 willing to consult with a community on another basis 9 other than the geographic community? 10 MR. TOPPING: You'd have to give us the 11 specifics of that. 12 MS. TEILLET: For example, I think the 13 position that the Manitoba Metis Federation is trying 14 to get people to understand is that their communities 15 don't coincide with the Northern Affairs communities 16 and that those mayor and council don't represent 17 them. So they've been at their suggestion or their 18 demand that consultation happening with the MMF is in 19 order to take in the idea that their communities are 20 not represented by mayor and council and that they 21 are not necessarily a geographically succinct 22 community. They may be a community in a broader 23 sense than is represented and that maybe that kind of 24 consultation that's limited to those geographic 25 communities isn't capturing the ball necessarily. 5266 1 And I think that's what they are putting forward. So 2 that's what we're talking about, is are you open to 3 consulting on another level. In other words, flat 4 out, will you consult with the Manitoba Metis 5 Federation locals? 6 MR. TOPPING: Yeah, I hear what you're 7 saying but we have a process in place in which the 8 Province, the Government of Manitoba is consulting on 9 a community basis. 10 MS. TEILLET: I have here a copy of a 11 Hansard from I believe it's the 11th of April where 12 Premier Doer says, and I am quoting him, 13 "We have been consulting with the 14 Metis Federation." 15 He says it more than once. And he goes on to say, 16 "Our ministers have had full 17 consultations with the Metis 18 Federation." 19 And yet what I'm hearing you say and I also heard Ms. 20 Leonoff say sort of seems to contradict that. 21 MR. SARGEANT: Ms. Teillet, is that in 22 respect of the Wuskwatim hearings that he says that? 23 MS. TEILLET: Yes, I'm sorry. I should 24 have said that, Mr. Sargeant. I am sorry. The topic 25 at the top is "Consultations Manitoba Metis 5267 1 Federation, Wuskwatim Dam." 2 MR. SARGEANT: Thank you. 3 MS. TEILLET: And I would be happy to put 4 this into the record. I only have one copy right now 5 but we'll be happy to supply this copy for you. So I 6 wonder if you can -- that's part of the problem we're 7 having, is that what Ms. Leonoff said was a decision 8 had been made not to consult with the Manitoba Metis 9 Federation. I hear you saying the same thing and yet 10 your Premier is standing up in the House and saying 11 something entirely different. I wonder if you could 12 explain that to us? 13 MR. HANNON: I would question the premise 14 that there has been a decision not to consult with 15 the Manitoba Metis Federation. I think what we've 16 said is there's been a decision to initiate contact 17 with local communities through the community council. 18 That's not the same thing, I don't think, of saying 19 there isn't consultation with the Manitoba Metis 20 Federation. 21 And if, through the process, the 22 consultation plan involved the Metis Federation, if 23 the local community thought it was appropriate, then 24 that specific community consultation plan could 25 include the Manitoba Metis Federation. I think Mr. 5268 1 Topping said that. 2 So I'm not sure we can accept the premise 3 that there's a decision to exclude the Manitoba Metis 4 Federation but rather that the consultation is 5 initiated at a local community level because of the 6 note and concern that the rights and interests that 7 we're dealing with are community interests. 8 And, you know, clearly if the Manitoba 9 Metis Federation is requested, for example, by a 10 community that it could well have an important role 11 in a particular consultation plan. 12 MS. TEILLET: Could you undertake to tell 13 us the communities where mayor and council have 14 invited the Manitoba Metis Federation to consult? 15 MR. HANNON: I believe Mr. Topping 16 already had provided an undertaking to provide -- 17 MS. TEILLET: Actually that was a 18 different question. That was asking where you had 19 consulted with Manitoba Metis Federation locals. Now 20 I'd like to ask you to provide information as to -- 21 you are saying to us that if the mayor and council 22 decide that they want to ask the Manitoba Metis 23 Federation to be consulted, then they can do that. 24 And I would like to know when that has happened, if 25 ever. And then the next part would be what if they 5269 1 have absolutely no interest in hearing from the 2 Manitoba Metis Federation regardless of the fact that 3 there is a Metis community there? So you've set up a 4 gatekeeper in your section 35 consultation process 5 and I'd like to know how you will deal with that. 6 MR. HANNON: I don't think we can answer 7 that as a hypothetical. We can provide information 8 on a specific basis if there is a -- if you're 9 looking for specific examples of where the MMF has 10 been invited, we can undertake to provide whatever 11 information we have. 12 MS. TEILLET: Well, what our 13 understanding is right now is that they have not been 14 invited anywhere. And so what we're asking and the 15 Manitoba Metis Federation has made it very clear in 16 written letters to you and into this Commission that 17 they are not being asked to be consulted with, that 18 they are not being spoken to as locals or at any 19 level. And so I guess what we're asking you is do 20 you have a plan for how you're going to deal with 21 that or are you going to maintain the stance that 22 unless the councils ask, then you're not going to act 23 or -- 24 MR. TOPPING: Many of these communities 25 have substantial Metis populations and membership to 5270 1 MMF. So there is a large degree of consultation with 2 the Metis population. 3 MS. TEILLET: Can I ask you where you get 4 your numbers from with respect to those communities 5 where you say that many of them have substantial 6 Metis populations? 7 MR. TOPPING: As you can tell, I wasn't 8 specific as to numbers of that sort, so. 9 MS. TEILLET: Because I guess what I'm 10 being told by my client is that in fact, the Metis in 11 many of these communities are a considerable minority 12 group. And so there are issues about majoritarian 13 preferences that may be acting to exclude an 14 Aboriginal -- I know Aboriginal people in general are 15 a minority but the Metis in particular are a minority 16 of a minority in many of the communities. And so 17 have you considered the fact that you may be 18 excluding people based on majoritarian preferences? 19 MR. TOPPING: We're not excluding any 20 concerns or interests raised by any party. 21 MS. TEILLET: You don't regard the 22 setting up the mayor and council as the gatekeeper as 23 exclusion? 24 MR. HANNON: It's your characterization, 25 not ours, of the process. We've said that they are 5271 1 the contact points and that a consultation plan would 2 be developed. And I don't think we are in a position 3 to discuss hypotheticals or how the government is 4 going to continue with the process that is a 5 continuing process right here in this forum. I think 6 we've heard concerns expressed in the form of 7 questions and the process is continuing but I don't 8 think we're in a position to describe how the 9 province will deal with things that may happen in the 10 consultation process. 11 MS. TEILLET: I guess what we're saying 12 to you is that this isn't hypothetical. You've had 13 letters informing you the Manitoba Metis Federation 14 has gone public. And we're telling you again here at 15 the hearing, these are not hypotheticals, these are 16 facts on the ground. And so your process is ongoing. 17 And so we're informing you that you have a problem 18 and that you're not getting to the Metis community. 19 And so I guess we're asking whether you will take 20 that into consideration and contact the Manitoba 21 Metis Federation? 22 MR. HANNON: I don't think we're in a 23 position to answer that question at the hearing. 24 THE CHAIRMAN: Okay. I will interrupt at 25 this point in time. You've had an opportunity to try 5272 1 and put forth your questions dealing with the section 2 32 consultation process. And as has been stated 3 clearly at the very beginning, our process is a 4 separate one. And I can appreciate that, and I am 5 not referring to the validity of your points of view 6 or at all, I'm just saying that it is not part of our 7 process. And because Mr. Topping was there, there 8 was an opportunity for you and co-chair, has stated 9 he was co-chair of the committee that is organizing 10 this process. I have allowed a number of questions 11 to go. I would hope that you would bring these 12 questions to an end because we're leading nowhere in 13 regards to the process we're involved in at this time 14 in regards to Wuskwatim. 15 And so I heard you ask questions in terms 16 of whether the co-chair of the committee and as part 17 of his role as co-chair of the committee will be 18 prepared to entertain some of the suggestions that 19 you've made. On the other hand, I've heard responses 20 to the effect that your characterization of the 21 process was not similar to their understanding. 22 There are avenues that I presume you can 23 pursue with the government and with the committee 24 outside of this particular process to push forward 25 your request in this regard. So I don't see the 5273 1 usefulness of proceeding. 2 MS. TEILLET: I was finished. I didn't 3 need the statement from you. I'm done. 4 THE CHAIRMAN: Well, that I did not know. 5 But also we did afford you the time to put your 6 questions. 7 MS. TEILLET: I do appreciate that and I 8 do appreciate the opportunity. We have no other 9 forum and we appreciate the fact that you've done 10 this. We know it's outside your mandate and we 11 really appreciate you giving us the time to ask 12 questions and we appreciate the answers. Thank you. 13 THE CHAIRMAN: All right. Other 14 questions? 15 MR. GREWAR: Mr. Chairman, I know that 16 the Community Association of South Indian Lake do 17 have some questions. Unfortunately, due to a 18 conflict, Mr. Dysart is not available until just 19 after the noon hour. So we've got about ten minutes. 20 I don't know if there's others that want to question 21 but we will need to make some time available just 22 immediately after lunch for CASIL if that's 23 acceptable? 24 THE CHAIRMAN: Others that may wish to 25 ask questions? Ms. Avery Kinew. 5274 1 MS. AVERY KINEW: Mr. Topping, on your 2 slide on page 9, you talk about the issuance of an 3 interim licence under the Water Power Act. The 4 decision to issue the licence may be considered after 5 concerns have been addressed through the regulatory 6 process. I just wondered in the diagram we have of 7 the regulatory process, I'd just like you to explain 8 what you mean by regulatory process. 9 And also you're not in the Project 10 Administration team, is that right, or the Water 11 Stewardship is not part of the TAC Technical Group, 12 the project administration team, the 13 federal/provincial? 14 MR. TOPPING: No, we are not. 15 MS. AVERY KINEW: So I just wonder what 16 regulatory process? 17 MR. TOPPING: We were talking to the 18 Environmental Act regulatory process. 19 MS. AVERY KINEW: That's what I'm 20 concerned about. If you are not involved, you're on 21 the side, how do you talk to each other? How do you 22 know what kind of conditions they might be 23 considering to put under a licence, and then 24 therefore, what kind you would? I know you are 25 controlled by your legislation. 5275 1 MR. TOPPING: The Water Power Act licence 2 will not be issued until the Environmental Act 3 licence is issued. 4 MS. AVERY KINEW: So is there any 5 consultation between your departments before that? 6 MR. TOPPING: Absolutely there is very 7 good interdepartmental communication and consultation 8 on this. 9 MS. AVERY KINEW: So you do know what the 10 project administration team and the technical team 11 are doing? Do they consult with you? 12 MR. TOPPING: At times, yes. 13 MS. AVERY KINEW: Yes. Okay, thanks. 14 THE CHAIRMAN: Mr. Bedford? 15 MR. BEDFORD: Mr. Topping, earlier this 16 morning in response to a question about independent 17 monitoring, you described something that you called 18 independent auditing. And you gave as an example, 19 something that took place on Lake Winnipeg. I 20 understand that the Government of Canada has placed 21 and maintains seven sites along the shores of Lake 22 Winnipeg where there is equipment which I generally 23 understand measures things like fluctuating water 24 level and shoreline erosion. Is that your 25 understanding? 5276 1 MR. TOPPING: More equipment related 2 water level. 3 MR. BEDFORD: And in addition, the 4 company that employs me, Manitoba Hydro, maintains 5 one site with similar equipment? 6 MR. TOPPING: Yes, a northern site. 7 MR. BEDFORD: And I understand that the 8 equipment generates data which data is given to 9 people with engineering training and they do 10 calculations and they draw conclusions from the 11 calculations primarily about the water levels of Lake 12 Winnipeg. Is that your understanding? 13 MR. TOPPING: Yes. What we call the wind 14 eliminated water levels on Lake Winnipeg. What would 15 be I guess the flat pool surface of the lake. 16 MR. BEDFORD: And when you described 17 earlier this morning independent auditing that was 18 done with respect to this equipment and the data that 19 it produces, I am told that as a result of a 20 provincial initiative, an independent body known as 21 the Lake Winnipeg shoreline erosion advisory group 22 retain the services of, among others, an engineer or 23 engineers who studied the data produced at these 24 eight sites, the Government of Canada ones and the 25 Manitoba Hydro one. They reviewed calculations being 5277 1 done, did their own calculations and compared them 2 with what was being reported to your branch. Have I 3 summarized correctly what took place? 4 MR. TOPPING: That is a correct 5 summarization. 6 MR. BEDFORD: And finally, I'm told with 7 respect to this independent audit, that the Lake 8 Winnipeg Shoreline Erosion Advisory Group determined 9 that there was no significant irregularities with 10 respect to the reporting that you were getting from 11 Manitoba Hydro with respect to these sites and Lake 12 Winnipeg and what it is we apparently all wish to 13 know monthly, weekly about Lake Winnipeg; is that 14 correct? 15 MR. TOPPING: That is correct, yes. 16 MR. BEDFORD: Now, are you able to agree 17 with me that this periodic process of an independent 18 audit, that we have just described in some detail, is 19 different from something that one might call 20 independent monitoring? 21 MR. TOPPING: An independent audit versus 22 an independent monitoring? Well, between Water 23 Survey of Canada and Manitoba Hydro, they had been 24 monitoring water levels, one particular parameter on 25 Lake Winnipeg over a number of years. And how that 5278 1 information was picked up was part of the audit also 2 and the accuracy of the reporting of that 3 information. I see that as a monitoring function 4 also. 5 MR. BEDFORD: Okay. The emphasis should 6 be placed earlier in the phrase. It's independent 7 and who does it that I think is of interest to some 8 people in the room this morning. So again, I put it 9 to you that a periodic review of data and 10 calculations that you described as an audit is 11 different than independent monitoring which I would 12 suggest to you is an independent agency. We could 13 call it the Lake Winnipeg Shoreline Erosion Advisory 14 Group every day or every week or every month 15 indefinitely studying the data and doing the 16 calculations coming from this equipment as opposed to 17 what I gather has been going on for years which is 18 that Manitoba Hydro, and as you say, an agency of the 19 Government of Canada has been doing that for years? 20 MR. TOPPING: That's correct, yeah, okay. 21 MR. BEDFORD: Are you suggesting or would 22 you agree that it would be appropriate for somebody 23 else other than Manitoba Hydro or the Government of 24 Canada to do that regular routine daily, weekly or 25 monthly work? 5279 1 MR. TOPPING: It would be a very costly 2 effort to have an independent consultant or agency do 3 the monitoring. As a check, we do look at the 4 standards in which Hydro does this monitoring. The 5 protocol, the operating protocol as set out in which 6 they pick up this information and their monitoring 7 program and the frequency of that monitoring, that 8 has been the manner in which we've checked Hydro's 9 results. 10 MR. BEDFORD: It would be unusual in your 11 experience in the job you've held for a number of 12 years to have an independent party do that monitoring 13 work? 14 MR. TOPPING: Based on my experience, I 15 cannot recall any situation where we've had an 16 independent body doing that work. 17 MR. BEDFORD: There was an implication 18 and a question put to you this morning which 19 implication may have been innocent or mischievous, I 20 don't know, that there is something deficient in one 21 or other of the interim licences that have been 22 issued by the Minister, to whom you report over the 23 years, to Manitoba Hydro. Is it your position today 24 that because some of the interim licences have not 25 gone through the process of becoming final licences, 5280 1 that by virtue of that fact, it means there are 2 deficiencies presently existing with respect to some 3 of the interim licences? 4 MR. TOPPING: Our opinion, those licences 5 are valid at present day and for continued operation. 6 MR. BEDFORD: Thank you. And finally, 7 we've noted that on a couple of occasions, you have 8 mentioned that the application for the interim water 9 licence or Water Power Act licence for Wuskwatim was 10 made on May 4, 2003. And people with better memories 11 than mine assure me it was June 4, 2003. 12 MR. TOPPING: Fair enough. 13 MR. BEDFORD: Do you stand corrected? 14 MR. TOPPING: I stand corrected. Let me 15 just check that. 16 MR. HANNON: It's 2003/06/04 which I will 17 assume is June 4th and not April 6th. 18 MR. TOPPING: Fair enough. 19 MR. BEDFORD: You were asked some 20 questions about the Augmented Flow Program at Missi 21 Falls. My recollection is that you may have, in 22 responding to one of those questions, indicated that 23 the annual review that the Minister does and other 24 agencies and departments that you have described for 25 us includes a review of the Missi Falls outflows. I 5281 1 understand that that is not the case and that the 2 minimum Missi Falls flows are specified in the CRD 3 interim licence and they aren't changed or reviewed 4 through this annual review of the Augmented Flow 5 Program approvals. Is what I've been told correct? 6 MR. TOPPING: Yeah, there is no reference 7 in the Augmented Flow Program as to minimum flows at 8 Missi. 9 MR. BEDFORD: Thank you. 10 MR. TOPPING: Thank you. 11 MR. BEDFORD: I am told that the flow 12 conditions specified in the Lower Churchill Weir 13 Environmental Licence however did make a reference to 14 the minimum outflows from Missi. Would that be your 15 understanding? 16 MR. TOPPING: I do recall that, yes, 17 that's correct. 18 MR. BEDFORD: Thank you. I have no 19 further questions. 20 THE CHAIRMAN: Thank you. Mr. Topping, 21 if I heard Mr. Bedford correctly, I believe Mr. 22 Bedford asked whether the review of the Missi Falls 23 instead of being reviewed by the department on an 24 annual basis was part of the annual request for the 25 augmented flow. And I thought that I had heard 5282 1 earlier in the EIS that the application for the 2 augmented flow on an annual basis basically consisted 3 of a letter written to the Minister. And I didn't 4 understand that part of that application included 5 details of the Missi Falls levels or whatnot. I 6 understood that the application basically was a 7 letter written to the Minister. So I don't know 8 which is which now? 9 MR. TOPPING: Well, the Augmented Flow 10 Program, Hydro makes annual application through a 11 letter to the Minister. I was incorrect in stating 12 it was Missi Falls. Minimum flows that were stated 13 in the Augmented Flow Program, in fact it's Notigi 14 that flows are allowed to be adjusted at. 15 THE CHAIRMAN: But with this application 16 on an annual basis for the augmented flow, does Hydro 17 send to the Department also information in regards to 18 the levels and flows and whatnot? 19 MR. TOPPING: Oh, yes. On a weekly 20 basis, Hydro provides Churchill River Diversion flow 21 rates and Lake Winnipeg flow rates and forecasted 22 operation regimes for those systems. They also 23 provide a monthly summary report. And this relates 24 to the Churchill River Diversion interim licence. 25 THE CHAIRMAN: Okay. It's perhaps my 5283 1 misunderstanding. Those are not necessarily part of 2 the letter which is for a request for the augmented 3 flow. They are periodic reporting that goes on all 4 the time? 5 MR. TOPPING: No, the letter doesn't talk 6 specifically to reporting requirements for the 7 Augmented Flow Program because it is covered off in 8 their reports on the Churchill River Diversion and 9 Lake Winnipeg Regulation. 10 THE CHAIRMAN: That's the way I 11 understood it before. It's just my misunderstanding 12 of what Mr. Bedford put on the record. 13 MR. TOPPING: There is a statement in the 14 authorization that monthly written reports on the 15 2003/2004 Augmented Flow Program be forwarded to the 16 Nelson House First Nation, Split Lake First Nation, 17 York Factory First Nation and affected communities. 18 THE CHAIRMAN: Thank you. Other 19 questions? 20 MS. BRUYERE: Caroline Bruyere, Elder of 21 Sagkeeng First Nation. Excuse me if I am repeating 22 somebody's question but I had to run to a doctor's 23 appointment. I was gone for a part of the session. 24 Anyway, I was wondering if anybody asked 25 this question. In the licensing process, is there 5284 1 any consideration taken on Aboriginal inherent and 2 treaty rights, its effect and impacts to the 3 Aboriginal and First Nations communities? 4 MR. TOPPING: Yes, that is the objective 5 of the consultations. 6 MS. BRUYERE: And my other question is 7 how do you interpret interim licence and long-term 8 licence or a permanent licence? Because to me, this 9 interim licence for Churchill River Diversion seems 10 to have been going on for years. 11 THE CHAIRMAN: Ms. Bruyere, you're going 12 to find that on the record. That was the essence of 13 quite a few of the questions at the very beginning of 14 this process, yes. 15 MS. BRUYERE: Okay, thank you. 16 THE CHAIRMAN: Thank you. Other than Mr. 17 Dysart then, I see this as perhaps no further 18 questions of Mr. Topping and Mr. Hannon. Are you 19 available for further questions right after from 20 CASIL? 21 MR. TOPPING: I'll make myself available. 22 THE CHAIRMAN: Thank you. At this point 23 in time, we will adjourn for lunch. We'll be back at 24 one o'clock. 25 5285 1 (PROCEEDINGS RECESSED AT 12:02 P.M.) 2 AND RECONVENED AT 1:00 P.M.) 3 4 5 THE CHAIRMAN: Ladies and gentlemen, 6 we will continue. Before we do, I wish to advise 7 that as far as I know there may not be that many 8 questions, but Mr. Topping has advised me that he 9 has got an urgent other commitment and has to be 10 out of here, I guess by the latest at quarter 11 after anyways, quarter after two. So we should be 12 finished well in time for that. 13 Ms. Phare for CASIL. 14 MS. PHARE: Thank you. I would like 15 to just start with a clarification about some of 16 the licencing regimes, in particular some of the 17 amendments to licences or -- I'm choosing my words 18 not all that carefully, because we will get to 19 what the proper word should be in a moment. 20 Am I correct, is it a correct 21 understanding that licence 2327, which is an 22 Environment Act licence dealing with the Churchill 23 Weir, has a provision in it that, in essence, 24 amends the Churchill River Diversion article 25 dealing with Missi Falls flows? Article 23 of 5286 1 Environment Act licence 2327, in my understanding 2 provides a flow regime term regarding Missi Falls 3 discharges. Is that correct? 4 MR. TOPPING: I don't believe it 5 relates to Missi Falls, I believe it relates to 6 flows at the weir, Churchill River weir. I would 7 have to do an undertaking to get clarification on 8 that. 9 MS. PHARE: I could read you the 10 article so you don't have to come back. Article 11 23 A says, 12 "The licensee shall at all times 13 following construction of the 14 development maintain releases from the 15 Missi Falls Control Structure on the 16 Churchill River Diversion such that 17 these flows are not less than those 18 maintained under the existing 19 Churchill River Diversion operation 20 flow regime for the period 1986 to the 21 date of this license." 22 MR. HANNON: It doesn't sound like a 23 change to the license. 24 MR. TOPPING: It sounds like it is 25 confirming the Churchill River Diversion on the 5287 1 Missi Falls flows. 2 MS. PHARE: It is your opinion then 3 that this clause in essence states that the flow 4 regime out of Missi Falls is that that was 5 provided by the Churchill River Diversion license? 6 MR. TOPPING: I mean, you have read 7 the conditions so -- I mean, it is what the -- I 8 mean, that condition speaks for itself. 9 MS. PHARE: Are you aware -- and I'm 10 sorry, I don't have the actual date of the 11 testimony -- that Manitoba Hydro has testified in 12 these hearings that the flow regime out of Missi 13 Falls right now is governed by this particular 14 license 2327, and that that modifies the Churchill 15 River Diversion requirements of 500 during the -- 16 500 cubic feet per second during the open water 17 period and 1,500 cubic feet per second during the 18 ice cover period. Are you familiar with any of 19 that testimony? 20 MR. TOPPING: No, I'm not familiar 21 with that testimony. 22 MS. PHARE: Who would I ask to find 23 out, within the Provincial Government, what the 24 flow rate is, the licensed flow rates are for 25 Missi Falls? 5288 1 MR. TOPPING: I can, as an 2 undertaking, find you this information and provide 3 it to you. 4 MS. PHARE: Okay. And would you be 5 available, or that person then be available for 6 questioning on that information when it comes 7 forward? 8 MR. TOPPING: We are just trying to 9 find the information on the license itself. 10 MS. PHARE: The provision in the 11 Churchill River Diversion license is article 12, 12 or section 12. 13 MR. TOPPING: I will read article 12 14 for you. 15 "Releases from the Missi Falls Control 16 Structure shall not be less than 500 17 cubic feet per second during the open 18 water period and 1,500 cubic feet per 19 second during the ice cover period. 20 Such greater releases as may be 21 required for the needs of downstream 22 interests shall be released, as 23 ordered by the Minister." 24 MS. PHARE: So is what you are stating 25 to me here today that that is the license regime 5289 1 governing discharges from Missi Falls Control 2 Structure as of today? 3 MR. TOPPING: I believe that's 4 correct. 5 MS. PHARE: How do you monitor that 6 those minimum flows are being maintained at Missi 7 Falls -- or is it environmental approvals that 8 does that, the Environmental Approvals Branch, 9 because I'm aware this is an Environment Act 10 license? 11 MR. TOPPING: Hydro provides a weekly 12 and monthly report on reported flows at various 13 locations. Missi Falls is an example. 14 MS. PHARE: And do they provide that 15 information to you in cubic feet per second? 16 MR. TOPPING: Metres cubed per second, 17 I believe. 18 MS. PHARE: How do you -- 19 MR. TOPPING: It is a simple 20 conversion. 21 MS. PHARE: Do you know what that 22 conversion is? 23 MR. TOPPING: I could work it out. 24 MS. PHARE: It might seem like a 25 strange line of questioning, but this is a matter 5290 1 of dispute in previous, in cross-examination of 2 Manitoba Hydro previously. 3 MR. TOPPING: I don't have that 4 conversion with me right here. 5 MS. PHARE: So what you do to ensure 6 that Manitoba Hydro is meeting their minimum flow 7 requirements from Missi Falls is what, you receive 8 monthly and weekly -- 9 MR. TOPPING: The monitoring -- they 10 provide monitoring at specific locations from 11 gauging stations, and that is reported to the 12 Director of Water. 13 MS. PHARE: And you review that 14 information? 15 MR. TOPPING: Yes, we do. 16 MS. PHARE: And you obviously do a 17 conversion, you convert it back to cubic feet per 18 second? 19 MR. TOPPING: Yes, we do check that it 20 is in compliance with the license. 21 MS. PHARE: So in your experience, has 22 there ever been a time when Manitoba Hydro has 23 gone below the 500 cubic feet per second or 1,500 24 cubic feet per second requirement of the CRD? 25 MR. TOPPING: Hydro usually provides 5291 1 us special notification when there are deviations 2 from the terms of the license. And I can't, from 3 my memory, I can't remember anything specific to 4 Missi Falls. 5 MS. PHARE: So you are not aware of 6 any, what you would call deviations from the 7 license? 8 MR. TOPPING: For Missi Falls? 9 MS. PHARE: Yes. 10 MR. TOPPING: From my memory, I can't 11 remember any specific deviations. 12 MS. PHARE: You would obviously then 13 be unable to characterize for us whether, in your 14 view, Manitoba Hydro is meeting the requirements 15 of the Missi Falls license regime on a regular 16 basis? 17 MR. TOPPING: Do you want that as an 18 undertaking? I can't make a valued decision on 19 that right now. 20 MS. PHARE: Okay. Sure, that would 21 be -- an undertaking would be fine. 22 23 (UNDERTAKING MWS-78: Advise position whether 24 Manitoba Hydro is meeting requirements of Missi 25 Falls licence regime on a regular basis) 5292 1 2 MS. PHARE: Is the Augmented Flow 3 Program annual approval, in your opinion, a 4 supplementary license under the Water Power 5 Regulations? 6 MR. HANNON: I think we answered that 7 question this morning, and Mr. Topping made 8 reference to a couple of provisions of the 9 regulation. 10 MS. PHARE: I think actually what you 11 said -- you can call it whatever you want -- I 12 don't think that you actually said whether you 13 consider it to be a supplementary license. 14 MR. HANNON: I think that was our 15 answer, that we pointed to the provisions of the 16 regulation dealing with amendments to the license. 17 MS. PHARE: So every year before 18 you -- so are you saying that every year then you 19 re-grant a supplementary license on the Augmented 20 Flow Program? 21 MR. HANNON: I am saying every year 22 there is an Augmented Flow Program authorized and 23 we say that those provisions of the regulation are 24 the basis for doing that. 25 MS. PHARE: Do you engage in a 5293 1 consultation with any of the potentially affected 2 communities prior to the decision each year? 3 MR. TOPPING: Yes, there is a 4 distribution list on Hydro's request for Augmented 5 Flow Program, and it is distributed to a number of 6 communities and agencies. 7 MS. PHARE: Do you contact the 8 community of South Indian Lake and ask them, prior 9 to granting that approval, for any input on, for 10 example, the potential impacts that that approval 11 might have on the community? 12 MR. TOPPING: I will check that out, 13 just hold on. 14 Mayor Gary Freeman from the community 15 of South Indian Lake is copied on this. 16 MS. PHARE: I'm not sure what you are 17 referring to. What document do you have? 18 MR. HANNON: This is a request for the 19 authorization of the deviation. 20 MS. PHARE: So that is a letter from 21 Manitoba Hydro? 22 MR. HANNON: From Manitoba Hydro. 23 MS. PHARE: I'm asking whether you 24 approach, as the Crown, the community of South 25 Indian Lake, and ask them if they have any 5294 1 concerns about the annual renewal each year, 2 whether you ask them each year about whether the 3 Augmented Flow Program may have impacts on them 4 prior to granting your approval? 5 MR. HANNON: I don't believe we do, 6 no. 7 MR. TOPPING: I don't believe that we 8 approach them, no. 9 MS. PHARE: Do you approach anybody 10 and ask them that question, any First Nations 11 community or Metis community that may be impacted 12 by that approval? 13 MR. TOPPING: No, we do not. 14 MS. PHARE: You had said earlier that 15 you receive a monthly -- well, I guess you said 16 weekly and monthly reports on the operation of the 17 CRD and the Augmented Flow Program, or was it just 18 the Augmented Flow Program, from the Manitoba 19 Hydro? 20 MR. TOPPING: It would include the 21 Augmented Flow Program, so it is the operating 22 regime, as the past performance, plus a prediction 23 of the future operating regime they would operate 24 for CRD and Lake Winnipeg Regulation. 25 MS. PHARE: Do you ever ask any of the 5295 1 communities about, the First Nations communities 2 in the north -- I will restrict actually it to 3 South Indian Lake because that is who I'm here 4 assisting today -- about any concerns they may 5 have with those reports or the effects of the 6 program in that particular month? 7 MR. TOPPING: I would like to point 8 out that the Augmented Flow Program, the community 9 agreements that have been signed by Hydro include 10 the effects and impacts of the Augmented Flow 11 Program. 12 MS. PHARE: Yes, I'm aware of that, 13 but you gave testimony earlier this morning 14 stating that before every approval of the 15 Augmented Flow Program that you receive 16 information from the Environmental Approvals 17 Branch -- 18 MR. TOPPING: That's correct, yes. 19 MS. PHARE: -- on potential 20 environmental issues, and I am just wondering if 21 you accord the communities that same opportunity 22 or not, either on a monthly basis or on a yearly 23 basis? 24 MR. TOPPING: No, we don't. The 25 Augmented Flow Program approval, though, does 5296 1 require Hydro to mitigate any effects due to it. 2 MS. PHARE: Do they do that? 3 MR. TOPPING: I understand that Hydro 4 has tabled what is called the healing document, 5 which identifies the community agreements, the 6 studies that have taken place, and any other 7 mitigation measures that have been put in place as 8 a result of the combined, the Augmented Flow 9 Program and -- 10 MS. PHARE: What criteria do you have, 11 as the Crown, or as Water Resources, to ensure 12 yourself that that clause is being fulfilled 13 adequately? 14 MR. TOPPING: This is about the 15 Augmented Flow Program? 16 MS. PHARE: You just said that 17 Manitoba Hydro is required to mitigate. 18 MR. TOPPING: Under point 5 of the 19 authorization, 20 "Manitoba Hydro fully mitigate any 21 effects of the altered levels and 22 flows." 23 MS. PHARE: I understand that is in 24 your annual approval. What I am asking is how do 25 you ensure to yourself that that clause is being 5297 1 fulfilled? 2 MR. TOPPING: Through the community 3 agreements that Hydro has put in place, has signed 4 with the communities. 5 MS. PHARE: So, in your view, that is 6 the only requirement that Manitoba Hydro has to 7 fulfill in order to fully mitigate all adverse 8 effects on the community of South Indian Lake, in 9 order to fulfill this term of your license? 10 MR. HANNON: I think the idea behind 11 the condition is that, if there are impacts, that 12 Hydro has the responsibility to mitigate them. 13 Mr. Topping made reference to one of the ways in 14 which they are mitigated through agreements, and 15 there are elements of those agreements that go to 16 aspects of mitigating those effects. 17 MS. PHARE: So, what if a particular 18 month you get an Augmented Flow Program report 19 that shows some variation that might -- do you 20 ever, how do you find out whether or not that 21 water flow variation has impacted adversely the 22 community of South Indian Lake, for example? 23 MR. TOPPING: Firstly, Hydro does 24 notify the branch of any deviations. 25 MS. PHARE: Do they specifically -- 5298 1 MR. TOPPING: Your question is 2 hypothetical in nature. 3 MS. PHARE: Does Hydro specifically 4 notify you of any adverse impacts on the community 5 of South Indian Lake each year, as required by the 6 Augmented Flow Program letter? 7 MR. HANNON: I'm not sure that is what 8 the letter requires. It requires Hydro to fully 9 mitigate any effects of the altered levels and 10 flows. 11 MS. PHARE: I'm aware that the letter 12 doesn't say that they have to tell you that they 13 have done it. I'm asking you, though, do they 14 tell you? 15 MR. TOPPING: I can't answer that 16 question because -- 17 MS. PHARE: Either they do tell you or 18 they don't tell you, or you don't know? 19 MR. TOPPING: It is more likely that I 20 don't know, because I do not get into the details 21 of administering -- 22 MS. PHARE: The licenses that you -- 23 MR. TOPPING: -- the licenses in that 24 detail, yes. 25 MS. PHARE: Who does? 5299 1 MR. TOPPING: I have a staff member 2 that deals with that, Indian water rights 3 licenseing section. 4 MS. PHARE: Who is that person? 5 MR. TOPPING: Mr. Tat Louis. 6 MS. PHARE: Would he be prepared to 7 come up here and answer my questions at some 8 point? 9 MR. HANNON: We would be prepared, if 10 it is appropriate, to undertake to give answers, 11 but I don't think that we are prepared -- we are 12 doing our best to answer the questions now on the 13 issues. 14 MS. PHARE: Are you suggesting that 15 you could get an undertaking to me on the answer 16 to that question? That would be fine with me. 17 MR. TOPPING: Will do. 18 19 (UNDERTAKING MWS-79: Advise if Hydro notifies 20 Water Branch re adverse impacts on community of 21 South Indian Lake each year) 22 23 MS. PHARE: Continuing to talk about 24 your communications with South Indian Lake, do you 25 anticipate that when the CRD final license 5300 1 approval is coming your way, or that you are 2 processing that, that you will engage in a section 3 35 consultation with the community of South Indian 4 Lake, or other First Nation, or Metis communities, 5 as you are doing right now on this interim 6 license? 7 MR. TOPPING: The Province has 8 indicated that they are prepared to consider a 9 consultation, but it is very much based on Hydro's 10 submission on the -- also the concerns that would 11 be tabled with the Minister. 12 MS. PHARE: Isn't in it in fact based 13 on the fact that you will be making a decision 14 that then triggers, a decision under a piece of 15 legislation that then may impact Treaty and 16 Aboriginal rights? That is the basis, that is 17 what you put forward this morning as the basis for 18 your decision to consult on this particular 19 interim license. So I'm putting forward to you to 20 see if you agree or not that that same criteria 21 would apply in terms of the CRD final license? 22 MR. HANNON: I think Mr. Topping said 23 that the Government has said that it is prepared 24 to have a consultation process about the 25 application for a final CRD license, but that 5301 1 hasn't happened yet. So it is very premature to 2 discuss what will happen in that process, and it 3 depends on the application and assessment of all 4 of the circumstances. 5 MS. AVERY KINEW: Mr. Hannon, I 6 understood you to say before that the Province 7 would consider section 35 consultations. Now you 8 are saying something different. 9 MR. HANNON: I don't think that I am. 10 I'm saying that the Province said it is prepared 11 to have a consultation process about an 12 application for a Churchill River Diversion final 13 license. But there isn't an application right 14 now, so the Province hasn't structured or 15 developed any kind of plan or content for that 16 consultation at this time. But I believe it is 17 correct to say that it recognizes that there will 18 be a consultation process of some kind at that 19 time. 20 MS. AVERY KINEW: Thank you. 21 MS. PHARE: I would like to talk to 22 you about something that you mentioned this 23 morning, or ask you a couple of questions about 24 the fact that the proponent, after the interim 25 license period is I guess completed -- for lack of 5302 1 a better word, I'm not sure what the appropriate 2 word is -- that the proponent is entitled to apply 3 for a final license. You stated that in your 4 presentation this morning. And I'm trying to 5 understand what approach you are considering, if 6 you can answer this at this point, in the interim 7 license? I will go back to the CRD license as an 8 example, because that is the only one that we 9 actually have to work with. 10 In the CRD license, article 18 states 11 that after the construction, or the activities as 12 set out in the CRD license are completed, the 13 Minister shall and will issue in favour of the 14 licensee a final license for the diversion, et 15 cetera, et cetera, et cetera. So that seems to me 16 to be a slightly different approach, where it is 17 not necessarily that the proponent is entitled to 18 apply, but it is that once the project is done, 19 that the Minister in that case shall issue a final 20 license. So the issue becomes, and we've talked 21 about it at length in these hearings before, is 22 the CRD done or not? And we have heard some 23 evidence about whether or not the Churchill River 24 Diversion is actually considered completed or not. 25 MR. TOPPING: As I indicated, Hydro 5303 1 still is working on the severance line as one 2 undertaking of the interim license. 3 MS. PHARE: And when that is done then 4 the Minister shall issue a license? 5 MR. TOPPING: Once Hydro files for an 6 application for final license. 7 MS. PHARE: How does that relate to 8 the evidence given earlier that it may go to 9 public hearings or may not? It appears that this 10 license says "a license shall be granted." 11 MR. HANNON: I should point out as 12 well that section 43 of the regulation provides, 13 "Upon the completion of the initial 14 development, according to the plans 15 approved..." 16 which parenthetically means under the interim 17 license, 18 "... and upon fulfillment and 19 compliance otherwise of all of the 20 terms and conditions of the interim 21 license and the regulation, the 22 interim licensee shall be entitled to 23 a final license authorizing certain 24 activities." 25 So the issue of the way the water power regulation 5304 1 works is when an interim license is completed, 2 there is a process to determine that all of the 3 conditions have been met, and then a final license 4 will be issued. But there are also provisions for 5 providing conditions in the final license and 6 ensuring that it meets the requirements of the 7 regulation. So the legislative process is that 8 there is supposed to be a final license, it is 9 not -- it is not a decision on whether or not 10 there will be a project, that is made at the stage 11 of the interim license because it is a significant 12 development. At the time of the final license, or 13 at the time that the initial development is 14 completed, then there is an assessment of the 15 meeting of the terms and conditions, and a 16 determination of a longer term, ongoing operating 17 regime under a final license. So that is the 18 process that we are referring to; Hydro would 19 apply for a final license, but recognizing the 20 requirements under section 43 of the regulation, 21 and as reflected in the existing license. 22 MS. PHARE: So, essentially, the 23 decision that remains to be made on the final 24 license is about the terms and conditions rather 25 than whether or not a final license will be 5305 1 granted? 2 MR. HANNON: I guess also, as well, to 3 the extent to which all of the conditions of the 4 interim license have in fact been fulfilled. 5 MS. PHARE: Section 3 of the Churchill 6 River Diversion interim license states that, 7 within five years from the date of the license, 8 that Manitoba Hydro was to have satisfactorily 9 completed the undertaking. And then section 4 10 says, once they were done, they were supposed to 11 notify the director of the fact that they 12 completed it, in which case then the director 13 decides what is the actual date of completion, 14 either the date that the waters were beginning to 15 be flowing, after the diversion has been 16 structured, or five years, what was in article 3. 17 So regardless of whether or not 18 Manitoba Hydro has completed a severance line or 19 anything else, would you not agree that those two 20 clauses in fact state that by definition in this 21 license the project is completed? 22 MR. TOPPING: I believe the intent of 23 that statement is that the development is 24 functional for the intended purpose of -- in other 25 words, the plant is in operation, that is the 5306 1 intent of that statement. One must recognize that 2 the other undertakings or conditions on the 3 license, there is a greater level of effort 4 required, particularly reaching community 5 agreements and that sort. 6 MS. PHARE: Would you not agree that 7 this provision, article 4, states that regardless 8 of whether or not the development has actually 9 been completed, that it is deemed to be completed 10 as of five years from the date of the license? 11 MR. HANNON: I don't think it says 12 that. It is a condition in 3 as to the five year 13 period to complete the works, certain works under 14 the undertaking, installing machinery and 15 equipment. That is to put a time frame on it. 16 MS. PHARE: Right, five years from the 17 date of this license those activities, the 18 activities authorized by this license are supposed 19 to be done. That's what clause 3 says? 20 MR. HANNON: Certainly those 21 activities that are listed there, yes, install all 22 of the machinery and equipment required for a 23 development capable of diverting waters from the 24 Churchill River to the Nelson River. 25 MS. PHARE: So then the movement into 5307 1 a final license was supposed to occur as of, 2 according to article 18, immediately, beginning in 3 1978, whether or not the activities were done? 4 THE CHAIRMAN: That is not what I 5 heard the response to be. I think you are asking 6 the same question, but I think it has been 7 answered, but it wasn't answered to your liking, I 8 think. 9 MS. PHARE: So, can I get a 10 clarification then, because I think I'm 11 misunderstanding? 12 MR. HANNON: Those conditions are in 13 the license. It is always difficult to explain a 14 condition that is there in plain view, or 15 reasonably plain view, as to what that means. But 16 what we have here is we have in 3 a provision that 17 puts a time period on the license in terms of 18 doing certain activities and installing machinery 19 and equipment. 20 Then in section 4 of that license, 21 there is a provision for notifying the director, 22 and then to determine a date for the purpose of 23 the license and regulations. But Mr. Topping had 24 mentioned earlier that there were still some 25 things that were being done in terms of plans and 5308 1 such in order to turn to a final license. And 2 that is what is being, as I understand it, being 3 done in respect of the license. 4 MS. PHARE: Were those activities that 5 you are waiting to be completed, were they 6 included in the original construction plans that 7 are referred to in this interim license, or are 8 they activities that have been developed 9 subsequent? 10 MR. TOPPING: This pre-dates me by 11 quite a number of years. 12 MS. PHARE: Could you please undertake 13 to provide me with that information? 14 MR. MAYER: Can I try to get in here? 15 I understand that you have a license, you have a 16 period within the interim license where you must 17 construct the goodies. You have similar 18 legislation in the Parks Act, where you give 19 somebody a permit to build a cabin on a remote 20 island in Paint lake, they have X number of years 21 to do this, but there are further conditions that 22 have to be complied with before you will issue 23 them a long term lease, for example. I'm trying 24 to draw an analogy here. So with the interim 25 license on Churchill River Diversion, all the 5309 1 machinery, the bricks, the boards, the pulleys, 2 the dams, were in place within the five years. 3 And then I understand that the only thing that may 4 well prevent Hydro from applying for a permit and 5 being entitled to obtain a final license at this 6 point is their failure to date to have met all of 7 the conditions that were attached to the license. 8 Am I correct in that? 9 MR. TOPPING: They have further 10 undertakings on the conditions, yes. 11 MR. MAYER: One of them being the 12 defining of the property that they intend to 13 occupy -- that is what we have been calling the 14 severance line. 15 MR. TOPPING: Correct. 16 MR. MAYER: I would further suggest 17 that the provision in condition 14 to clear the, 18 basically clear the bush that got flooded, may 19 also pose a problem for Hydro in obtaining a final 20 license at this point. Would I be correct in 21 that -- assuming there still is some bush in 22 Mystery Lake, as I assure you there is. 23 MR. TOPPING: I don't know if that is 24 one of the conditions, if that is one of the 25 conditions. I do know the severance line is the 5310 1 big issue. 2 MR. MAYER: Condition 14 reads to me 3 like they have to clean the bush out of the water. 4 I may be incorrect in that. But assuming it is 5 interpreted that way, that too could pose a 6 problem for Manitoba Hydro should they apply for a 7 final permit, am I correct, or final license? 8 MR. HANNON: I think in principle all 9 of the conditions of the interim license are to be 10 looked at. 11 MR. MAYER: Okay. I think I have it 12 clear. 13 MS. PHARE: Are you of the opinion 14 that Manitoba Hydro wasn't required to apply for 15 any extension of this interim license? 16 MR. TOPPING: No, they do not have to 17 apply for an extension. 18 MS. PHARE: I figured that is what 19 your answer was. 20 Are there penalties in the Water Power 21 Regulations for violating Water Power Act 22 licenses? 23 MR. HANNON: I think I pointed out 24 just before the lunch break that section 81 deals 25 with penalties for default by licensee. And it is 5311 1 there, it is about two pages worth of process for 2 dealing with circumstances where a licensee has, 3 in the opinion of the Minister, failed to observe 4 or perform a term or condition of the license. 5 MS. PHARE: I do recall you stating 6 that in your opinion that was either interim or 7 final licenses? 8 MR. HANNON: It doesn't distinguish 9 between interim and final licenses. 10 MS. PHARE: So from the day, from 11 May 11, 1973 to present, if there are violations 12 to the Missi flow regime clause, in your opinion 13 that clause would apply? 14 MR. HANNON: As it would with any 15 license. 16 MS. PHARE: Okay. Thank you. Those 17 are all of my questions. Thank you very much. 18 THE CHAIRMAN: Thank you, Ms. Phare. 19 Were there further questions? Mr. Bedford? 20 MR. BEDFORD: Mr. Topping, in the 21 questions that you have been asked this afternoon, 22 we again touched on the subject of Missi Falls and 23 the Churchill Weir. You were told that there had 24 been some earlier testimony, weeks ago at this 25 hearing, on the subject of the Missi Falls and the 5312 1 Churchill Weir that had been given by my client, 2 Manitoba Hydro. 3 In substance, my recollection of that 4 testimony is that the license for the Churchill 5 Weir has a stipulation in it that is more 6 stringent for the flows out of Missi Falls. And 7 when I say more stringent, I understand that to be 8 that they stipulate a higher minimum flow than 9 what the CRD license, the interim CRD license 10 stipulates. The Churchill Weir license is much 11 more recent in time than the interim license for 12 CRD. 13 Would you agree with me that in a case 14 where you have two licenses, the CRD license and 15 the subsequent Churchill Weir license, that both 16 address Missi Falls and the outflows from Missi 17 Falls, that the appropriate action for the 18 proponent, the operator of Missi Falls, which is 19 my client, is to follow the more stringent 20 requirements in the more recent license, that is 21 the one for Churchill Weir? 22 MR. TOPPING: I do agree with that, 23 yes. 24 MR. BEDFORD: Thank you. That is it. 25 THE CHAIRMAN: Thank you. We thank 5313 1 you, Mr. Topping and Mr. Hannon. Mr. Grewar. 2 MR. GREWAR: This has been brought 3 forward and submitted by the Metis Federation, it 4 is the excerpt from Hansard that was discussed 5 this morning. I just want to assign an exhibit 6 number, I will distribute copies, although we 7 still want to verify the date as to when the 8 recording was actually made. But it will be 9 MMF-1001, excerpt from Hansard 2004, and we will 10 confirm the date. 11 THE CHAIRMAN: Thank you. 12 13 (EXHIBIT MMF-1001: Excerpt from 14 Handsard 2004) 15 16 THE CHAIRMAN: We will now call on the 17 project administration team representatives. 18 MR. GREWAR: He has already been sworn 19 in -- although Mr. Hreno, were you sworn in? 20 MR. HRENO: No. 21 MR. GREWAR: State your name for the 22 record? 23 MR. HRENO: John Trent Hreno. 24 MR. GREWAR: Mr. Hreno, are you aware 25 that in Manitoba it is an offence to mislead this 5314 1 Commission? 2 MR. HRENO: I am. 3 MR. GREWAR: Do you promise to tell 4 only the truth in proceedings before this 5 Commission? 6 MR. HRENO: I do. 7 THE CHAIRMAN: Proceed, Mr. Strachan. 8 MR. STRACHAN: Thank you, 9 Mr. Chairman, panel members. I thought it might 10 be appropriate if I made a few brief openings 11 remarks. I have presented to this panel on 12 March 1st, on the opening day in Thompson and The 13 Pas, a brief summary of the project overview that 14 we conducted on the Wuskwatim proposals. I have 15 also provided on those occasions, in addition to 16 the overheads that I used, a detailed written 17 portion of the information to Mr. Grewar, and I 18 have provided him some more copies of that 19 information today. And he might be able to 20 distribute that while I'm making my opening 21 remarks. 22 MR. GREWAR: Yes, Mr. Chairman. And 23 interestingly enough, this was not assigned an 24 exhibit number back on March 1st. Mr. Strachan's 25 overhead slide presentations were, however, this 5315 1 actual document, which is the cooperative 2 environmental assessment process for the proposed 3 Wuskwatim Generation and Transmission Projects by 4 Mr. Strachan, the chair of the project 5 administration team, was not assigned an exhibit 6 number, so I would like to proposed that we assign 7 it as MC-1002 and I will distribute it now. 8 9 (EXHIBIT MC-1002: Cooperative 10 environmental assessment process for 11 the proposed Wuskwatim Generation and 12 Transmission Projects by Mr. Strachan) 13 14 MR. STRACHAN: The project proposals 15 for the generation station and transmission line 16 were submitted for review to us on December 7, 17 2001. Because both Manitoba and Canada 18 environmental approvals were required for the 19 project, we established a project administration 20 team to administer the review. The project 21 administration team, or PAT, consists of Manitoba 22 members, Mr. Hreno and myself, and Canada members, 23 Mr. Dan McNaughton and Ms. Bev Ross. As this 24 Clean Environment Commission hearing is a 25 component of Provincial review process, the PAT is 5316 1 represented here today by the Provincial Manitoba 2 members. 3 Following the initial review of the 4 project proposals, EIS guidelines were developed 5 through a public consultation process, 6 administered by your Commission, Mr. Chairman. 7 And these guidelines were finalized on April 29, 8 2002. 9 The EIS that we have discussed at this 10 hearing was subsequently filed on April 28, 2003. 11 And following the review of the EIS through the 12 project administration team process, which 13 involved the technical advisory committee and some 14 limited public review, we required two 15 supplemental filings for more information to 16 further detail the environmental assessment 17 information. And these were filed with us on 18 August 8th, 2003 and October 10, 2003. 19 As I indicated in my opening remarks 20 on March 1st, there is an ongoing specific 21 information request being developed between the 22 proponents and the Department of Fisheries and 23 Oceans regarding specific permitting requirements 24 under the Federal Fisheries Act. 25 In consideration of the review of the 5317 1 Environmental Impact Statements and the two 2 supplemental filings, and based on the advice 3 received from the public and the technical 4 advisory committee, the project administration 5 team determined initially on October 9th, 2003, 6 and then confirmed that confirmation on 7 October 24th, 2003, that the Environmental Impact 8 Statement and supplemental filings were sufficient 9 to be considered by the Clean Environment 10 Commission and the participants through this 11 public hearing process. 12 As you know, the public hearing 13 commenced on March 1st, and the Manitoba project 14 administration team members have been present at 15 each and every day of the hearing. 16 Lastly, in consideration of the advice 17 that we received from the Commission process, the 18 project administration team, both the Provincial 19 members and the Federal members, will proceed to 20 take our regulatory decisions that are mandated to 21 us, under both the Manitoba Environment Act and 22 the Federal legislation. 23 So with that, Mr. Chairman, we will 24 entertain your questions on the environmental 25 process that we administered for these proposals. 5318 1 THE CHAIRMAN: I should know this, 2 Mr. Strachan, but just to refresh my memory, the 3 two supplementary filings that you required and 4 received dealt specifically with which issues, do 5 you recall? 6 MR. STRACHAN: They dealt with a 7 number of issues, deficiencies, if you will, 8 Mr. Chairman, on the review of the Environmental 9 Impact Statements that were filed with us on the 10 generation project and the transmission line 11 project. So they were essentially requirements 12 for further detailed information to clarify 13 environmental comments and issues that were 14 provided to us, mainly through our technical 15 advisory committee review process. 16 THE CHAIRMAN: Thank you. Questions, 17 Mr. Sargeant? 18 MR. SARGEANT: Mr. Strachan, I'm just 19 wondering, I guess I'm not sure what your -- you 20 being PAT -- what your role is in the process. 21 And I'm referring in particular to page 3 of this 22 document where you talk about, at the top of the 23 page there is three bullets, and the first one 24 says that the intent and the scope of the 25 guidelines have been satisfied. The next one says 5319 1 that the information generated is sufficient to be 2 considered at the CEC public hearings. 3 Is it your role just to ensure that 4 the guidelines have been satisfied, or is it your 5 role to assess the quality of the Environmental 6 Impact Statements filed by the proponents? 7 MR. STRACHAN: Our role is both, 8 Mr. Sargeant, to first ensure that the intent and 9 scope of the EIS guidelines, i.e., the scope of 10 the review have been satisfied. And also to have 11 some comfort that the Environmental Impact 12 Statement and further information filed addresses 13 the breadth and scope of the issues sufficiently 14 so that we can take final regulatory decisions at 15 the end of the day. 16 Normally, without a public hearing 17 process, we would take that exercise to a 18 conclusion more than we have during this process. 19 But because of the public hearing process, and one 20 important facet of the overall review is to seek 21 your advice and recommendations of the sufficiency 22 of the information, it wasn't necessary at this 23 point in time for us to take our review to a 24 conclusion, but only to be satisfied that the 25 documentation was sufficient for your review, 5320 1 there were no major holes in the documentation, 2 prior to asking you to conduct your public review 3 on the information. 4 MR. SARGEANT: So at this point in the 5 process, you haven't fully assessed whether or not 6 the information provided by Hydro/NCN is good 7 science? 8 MR. STRACHAN: I would not agree with 9 that totally. I think we have satisfied 10 ourselves, to a great extent, that the EIS and 11 supplemental filings does constitute good science, 12 good information. It addresses the scope and 13 intent of the guidelines. And what we are looking 14 forward from your process is the final stage to 15 get both your advice, and the advice of other 16 participants that didn't really participate fully 17 in our process because they knew this public 18 hearing process was coming along, so to get that 19 advice so we can take that final step. 20 MR. SARGEANT: So if this was a level 21 1 or level 2 process, without public hearings, 22 what would you do to take it to final stage? 23 MR. STRACHAN: We would ensure that 24 the documentation was available to all of those 25 that were interested in reviewing it. We would 5321 1 receive and analyze comments received from all 2 parties, and satisfy ourselves that those comments 3 and information were addressed to the extent they 4 should be addressed. Then we would then proceed 5 to a final licenseing decision based on our review 6 of all of that information. 7 MR. SARGEANT: So are you satisfied 8 that the information that Hydro has provided has 9 identified fully all of the environmental concerns 10 that might exist? 11 MR. STRACHAN: At the time that we 12 referred the EIS to you for the public hearing 13 process, we were satisfied that the intended scope 14 of the guidelines were addressed by the EIS and 15 the supplemental filings. And to the extent that 16 we knew the environmental issues, the public 17 issues at that time, that they were pretty much 18 satisfied. But we knew there would probably be 19 more environmental issues and public issues, I 20 think as we have all heard through these 22 days 21 of hearings, that have still yet to be addressed 22 and decisions taken on them. 23 MR. SARGEANT: 22 days and still 24 counting. 25 MR. STRACHAN: Yes. 5322 1 MR. SARGEANT: I think that is all I 2 have for now. Thank you. 3 MR. STRACHAN: Thank you. 4 THE CHAIRMAN: Mr. Abra? 5 MR. ABRA: Mr. Strachan and Mr. Hreno, 6 just following up on what Mr. Sargeant was asking 7 you about the EIS, did I understand you to be 8 saying that your review of an EIS might be more 9 thorough in a situation where there aren't going 10 to be Clean Environment Commission hearings, as 11 opposed to those where you know there are going to 12 be, or you look at different criteria? What is 13 the distinction? 14 MR. STRACHAN: More thorough in the 15 sense that, rather than relying on this public 16 hearing process to consider all of the issues of 17 the other participants, that we would have made 18 sure that the participants address their issues 19 and concerns to us directly, and then we would 20 have analyzed and taken decisions based on those 21 issues identified with us. 22 MR. ABRA: So you get more input then 23 from intervenors, participants, interested parties 24 and so on, when there is not a hearing process, 25 before you make your decision with respect to 5323 1 recommendations of licensure. But in this case, 2 because you knew that there was going to be a 3 hearing process, it is a different kind of 4 analysis that you do as far as determination of 5 the appropriateness of the EIS guidelines? 6 MR. STRACHAN: It is the same analysis 7 at the end of the day, but what we didn't do at 8 this stage, because we knew this hearing process 9 was coming up, and we didn't make an attempt to 10 engage with all of the participants to make sure 11 that we understood and addressed their issues and 12 concerns, because we knew they would be addressed 13 through this public hearing process. 14 MR. HRENO: Just to add to that, if I 15 could, the fact that the participants, 16 intervenors, knew that there were hearings, we 17 think probably lead to decreased comment on the 18 EIS. In fact, we only received two public 19 comments; one from the Public Interest Law Centre 20 on behalf of the Consumers Asociation of Canada, 21 Manitoba Society of Seniors, and then from the 22 Manitoba Wildlands, Canadian Nature Federation. 23 That was it. 24 MR. ABRA: The issues that they raised 25 at that time, Mr. Hreno, were they much -- this 5324 1 may not be a fair question, but I will ask it 2 anyway -- were the issues that they were raising 3 of much the same nature as you have heard them 4 raising during the course of these hearings? 5 MR. HRENO: In many cases they were 6 identical. 7 MR. ABRA: So those issues were raised 8 with you initially, and then they have again been 9 raised during the course of the hearings and so 10 on? 11 MR. HRENO: They have been raised with 12 us initially, they were addressed to an extent -- 13 perhaps there is disagreement by the 14 intervenors -- but addressed to an extent in the 15 two supplemental filings, addressed at length I 16 would say in the interrogatories -- whether or not 17 those answer were ever read, I don't know, but 18 they were addressed -- and addressed during the 19 hearings. 20 MR. ABRA: Okay. When you are 21 reviewing an EIS for any project that may be 22 before you, whether it is one in which there is 23 going to be hearings or one in which there is not 24 going to be hearings, is there set criteria that 25 you use for reviewing the EIS's for specific 5325 1 projects that come in, or do you determine your 2 own criteria for review depending upon the nature 3 of the project, or is it a little bit of both? 4 MR. STRACHAN: I guess, Mr. Abra, the 5 set criteria is the legislative process under the 6 Environment Act, as to how one deals with a 7 development proposal. I think you are probably 8 aware there is a great deal of discretion in that 9 process, given to the director to administer that 10 process. But essentially, for each and every 11 development proposal, the standard, if you will, 12 is the legislative process. So we establish the 13 scope of the assessment, we collect information 14 based on that scope of assessment, and we subject 15 that information to a peer review, if you will, 16 through a public process and a technical advisory 17 committee process, and then we collect that 18 advice, and then take a decision at the end of the 19 day on that advice. So that is sort of the 20 standard process and the criteria that we would 21 use for each and every development proposal. 22 MR. ABRA: Now, did I understand you 23 to say to Mr. Sargeant that, for the purposes of 24 this particular EIS, you reviewed it to satisfy 25 yourselves that it was sufficient to go forward 5326 1 for the public hearings? 2 MR. STRACHAN: Yes. 3 MR. ABRA: And once you had made that 4 determination, then the public hearings were of 5 course called and have been going on and 6 continuing to go on. And then ultimately you will 7 receive a report with recommendations, if the CEC 8 decides to make recommendations. You still have 9 the authority then to do whatever study or 10 investigation you want to do after the CEC