00001
  1          MANITOBA CLEAN ENVIRONMENT COMMISSION
  2   
  3   
  4   
  5   
  6   
  7       RED RIVER FLOODWAY EXPANSION PROJECT
  8   
  9   
 10   
 11   
 12   =======================================
 13            Monday, February 14, 2005
 14        Sheraton Hotel, 161 Donald Street
 15             Winnipeg, Manitoba
 16   ========================================
 17   
 18   
 19   
 20   
 21   
 22   
 23   
 24   
 25   
00002
  1   APPEARANCES:
  2   Clean Environment Commission:
  3   Mr. Terry Sargeant - Chairman
      Mr. Barrie Webster - Member
  4   Mr. Wayne Motheral - Member
      Mr. Doug Abra      - Counsel
  5   Mr. Dave Farlinger - Technical consultant
      Ms. Cathy Johnson  - Secretary to Commission
  6   Ms. Joyce Mueller  - Secretary
  7   Manitoba Conservation:
  8   Mr. Trent Hreno    - Chair, Project Admin Team
      Mr. Bruce Webb     - Chair, Tech Advisory
  9                        Committee
      Mr. Stewart Pierce - Counsel
 10   
 11   Manitoba Floodway Authority:
 12   Mr. Rick Handlon   - Counsel
      Mr. Jim Thomson
 13   Mr. Doug McNeil
      Mr. Doug Peterson
 14   Mr. John Osler     - Intergroup Consulting
      Mr. David Morgan   - TetrES Consulting
 15   Mr. George Rempel  - TetrES Consulting
 16   
 17   Participants:
 18   Mr. Bob Starr      - Ritchot Concerned Citizens
      Mr. Bob Bodnaruk   - RM of Springfield
 19   Mr. Steve Strang   - RM of St. Clements
      Mr. Orvel Currie   - Counsel to Municipalities
 20   Mr. Dave Chorney   - Coalition for Flood
 21                        Protection North
 22   Mr. Jack Jonasson  - Coalition for Flood 
 23                        Protection North
 24   Mr. Kerry McLuhan  - Coalition for Flood
 25   
00003
  1   Participants:  (continued) 
  2                       Protection North
  3   Mr. Karl Pohl      - Coalition for Flood
  4                        Protection North
  5   Mr. Rob Loudfoot   - 768 Association
  6   Mr. Y. Shumuk      - 768 Association
  7   Paul Clifton       - Paul Clifton
  8   Mr. Jeff Frank     - Rivers West
  9   Gaile Whelan Enns  - Manitoba Wildlands
      Earl Stevenson     - Peguis Indian Band
 10   Mr. Jake Buhler    - Cooks Creek Conservation
 11   Mr. Lloyd Crooks   - Cooks Creek Conservation
 12   Mr. Jon Stefanson  - Cooks Creek Conservation
 13   Mr. Daryl Chicoine - Counsel
 14   Mr. Jim Stinson    - Jim Stinson
 15   
 16   
 17   
 18   
 19   
 20   
 21   
 22   
 23   
 24   
 25   
00004
  1             Index of Exhibits
  2   
  3   1      Motion, Manitoba Clean Enrironment    43
  4          Commission, Between RM of East St.
  5          Paul, St. Clements and Springfield
  6   
  7   2      Motion Brief of the Participants      43
  8          before the Manitoba Clean
             Environment Commission, February
  9          14, 2005, 9:00 a.m.
 10   
      3      Brief:  Motions Brief of the         100
 11          Proponent before the Manitoba Clean
             Environment Commission, February
 12          14, 2005, 9:00 a.m.
 13   
 14   4      Prepared statement from the 768     103
             Association Inc., participant in
 15          the Manitoba Clean Environment
             Commission hearings for the Red
 16          River Floodway Expansion Project
 17   
 18   5      Support for the motion by Paul       121
             Clifton
 19   
 20   
 21   
 22   
 23   
 24   
 25   
00005
  1                INDEX OF UNDERTAKINGS
  2   UNDERTAKING NO.                               PAGE
  3   
  4   
  5   No undertakings given
  6   
  7   
  8   
  9   
 10   
 11   
 12   
 13   
 14   
 15   
 16   
 17   
 18   
 19   
 20   
 21   
 22   
 23   
 24   
 25   
00006
  1   MONDAY, FEBRUARY 14, 2005
  2   UPON COMMENCING AT 9:00 A.M.
  3   
  4               THE CHAIRMAN:  Good morning, ladies
  5   and gentlemen and welcome.  For any of you who may
  6   have forgotten your Valentine, we will try and get
  7   you out this afternoon before the florists and the
  8   chocolate shops close.
  9               Before calling today's proceedings to
 10   order, please allow me to introduce myself.  My
 11   name is Terry Sargeant, I'm the chair of the Clean
 12   Environment Commission, as well as chair of the
 13   panel that will be reviewing the floodway
 14   proposal.  With me as panel members are Wayne
 15   Motheral and Barrie Webster.
 16                In addition to the panel, I would
 17   like to introduce some of the staff and advisors
 18   who are assisting us in this review, starting with
 19   commission secretary, Cathy Johnson, just on the
 20   table down to my left, who has only recently
 21   joined the Commission.  Sitting next to her is
 22   Doug Abra, our legal counsel from the firm of Hill
 23   Abra & Dewar.  Behind me is Dave Farlinger, one of
 24   the technical consultants who will be working with
 25   the Environment Commission over the next few
00007
  1   weeks.  And at the registration table by the door
  2   is our administrative secretary, Joyce Mueller.
  3               I would like to note that the Manitoba
  4   Clean Environment Commission is an arm's length
  5   provincial agency which derives its authority from
  6   the Environment Act.  We conduct our hearings in
  7   general accordance with the process guidelines
  8   respecting public hearings.  Furthermore, and
  9   particularly germane to what will unfold this
 10   morning, we must operate within the common law as
 11   it relates to administrative bodies such as ours.
 12               I'm going to put off any more detailed
 13   introductory comments until we actually commence
 14   the review hearings, whether that be tomorrow
 15   morning or some other date yet to be determined.
 16   As you are all aware, we have an extraordinary
 17   matter to deal with today before we proceed to our
 18   scheduled hearings.
 19               In accord with our process guidelines,
 20   three of the registered participants have filed a
 21   motion asking that the commencement of these
 22   hearings be delayed.  These participants are the
 23   rural municipalities of East St. Paul, St.
 24   Clements and Springfield.  We will now turn to
 25   deal with this motion.
00008
  1               The order of this part of the
  2   proceedings will be as follows:  Counsel for the
  3   applicant, that is the three municipalities, will
  4   present their motion and their argument in support
  5   of that motion.  This will be followed by a
  6   response from the Manitoba Floodway Authority, the
  7   respondent.  Following this, registered
  8   participants wishing to speak to the motion will
  9   be allowed to do so.  These presentations will be
 10   limited to 20 minutes, they must be relevant to
 11   the motion before us, and are to be spoken
 12   arguments only.
 13               To date we have had indication that
 14   one participant wishes to make an oral
 15   presentation this morning.  One other participant
 16   submitted a brief written submission which will be
 17   read into the record by the Commission secretary
 18   at the appropriate time.
 19               Following these presentations, the
 20   respondent will have an opportunity to present any
 21   final comments.  And lastly, the applicant will
 22   have the opportunity to bat clean-up, so to speak.
 23               At the end of this debate this morning
 24   or early this afternoon, however long it takes,
 25   the panel will recess, consider the arguments
00009
  1   presented, and come to a decision.  We will
  2   present our decision with written reasons as soon
  3   as possible.  We have spoken this morning, we
  4   would hope that by at about 4:00 or 4:30 this
  5   afternoon we can give you either a written
  6   decision  or at the very least an oral decision.
  7   I should note that the decision of the panel in
  8   this regard is final.
  9               I would just like, before we commence
 10   I would like to point out to the lawyers for the
 11   parties that two of the members of this panel are
 12   not legally trained, most of the people in the
 13   audience are not legally trained, so, please, if
 14   you use any legalese terms, explain it for the
 15   benefit of all of us.
 16               I would now like to ask the Commission
 17   secretary to read the motion into the record.
 18               MS. JOHNSON:  Thank you,
 19   Mr. Chairman.  The notice of motion:
 20               "The participants, the Rural
 21               Municipality of Springfield, the Rural
 22               Municipality of St. Clements, and the
 23               Rural Municipality of East St. Paul,
 24               the participant municipalities, will
 25               make a motion before the Manitoba
00010
  1               Clean Environment Commission at
  2               9:00 a.m. or as soon after that time
  3               as the motion can be heard on the 14th
  4               day of February at the Sheraton Hotel,
  5               191 Donald Street, in the City of
  6               Winnipeg in the Province of Manitoba.
  7               The motion is for an order that the
  8               public hearings scheduled to commence
  9               on February 14th, 2005, be adjourned
 10               sine die or to a date set by the
 11               Manitoba Clean Environment Commission,
 12               that the Manitoba Floodway Authority,
 13               the proponent, produce all documents
 14               and complete all informational and
 15               technical requirements pursuant to the
 16               guidelines for the preparation of an
 17               Environment Impact Statement for the
 18               Red River Floodway Expansion Project,
 19               February 5, 2004 and the Environment
 20               Impact Statement prior to the
 21               commencement of the public hearings;
 22               that to facilitate the involvement of
 23               the participant municipalities and
 24               other participants, the proponent
 25               provide a comprehensive index
00011
  1               referencing the EIS and all
  2               supplementary proponent filings such
  3               that issues can be easily
  4               cross-referenced and accessed by all
  5               participants; that the proponent
  6               provide its position and proposals for
  7               addressing the following issues as
  8               detailed in the letter to the
  9               commission for the participant
 10               municipalities and the City of
 11               Winnipeg, the City of Selkirk, and the
 12               RM of St. Andrews, dated January 26,
 13               2005, beyond its limited response in
 14               its letter dated January 31, 2005.
 15               1. Impacts on outfalls located in the
 16               City of Selkirk.
 17               2.  Aquifer concerns based on a
 18               possible transference of contamination
 19               from floodway waters when levels are
 20               high in the floodway.
 21               3.  Sealing of all of the aquifer,
 22               including east and west of the
 23               Springhill ski hill.
 24               4.  Possible usage of aquifer waters
 25               spilling into the floodway.
00012
  1               5.  Erosion of river banks.
  2               6.  Ice jams and back flooding.
  3               7.  Low level crossing at Dunning
  4               Road.
  5               8.  Compensation to individuals.
  6               9.  Cumulative impacts from initial
  7               floodway construction.
  8               10.  Dredging at the mouth of the Red
  9               River."
 10               THE CHAIRMAN:  Thank you.  Just one
 11   procedural note before we commence.  I heard a
 12   cell phone go off as that was being read into the
 13   record.  Please, turn off your cell phones.  If
 14   you put them on to vibrate, take your call outside
 15   of the room, not inside the room.  We won't
 16   tolerate discourtesy to the other participants.
 17               Mr. Currie, over to you, and would you
 18   please introduce the folks with you?  You don't
 19   have to touch the mike, it will be turned on for
 20   you.  Please introduce the others with you on the
 21   panel.
 22               MR. CURRIE:  Thank you, Mr. Chairman.
 23   Just for the benefit of everyone, Orvel Currie
 24   from the law firm of Levene Tadman Gutkin Golub
 25   representing the municipalities.  To my immediate
00013
  1   right is Reeve Holland from the RM of Springfield,
  2   to his immediate right is the Deputy Reeve Dave
  3   Gera from the RM of East St. Paul, and to Deputy
  4   Reeve Gera's right is Reeve Steve Strang from the
  5   RM of St. Clements.
  6               THE CHAIRMAN:  Thank you.  Proceed.
  7               MR. CURRIE:  Thank you very much,
  8   Mr. Chairman, panel members.  As it is clear from
  9   what has been read into the record, this is a
 10   motion to ask the panel to consider the indefinite
 11   suspension of these hearings, or alternatively a
 12   suspension of these hearings until a specified
 13   time into the future.  The intent of that is to
 14   ask the panel, as has been heard, to consider
 15   requiring the proponent of this project to answer
 16   further and better questions and provide further
 17   and better information.  That's the very basics of
 18   it.
 19               The participant municipalities have
 20   requested that I make it very clear that they are
 21   not opposed to the floodway expansion.  That is
 22   not their position at all.  They support this
 23   expansion and know it must be done.  It is a
 24   critical component to all Manitobans.
 25               What they oppose is doing it without
00014
  1   careful consideration and thorough thought.  What
  2   they want is that there be taken into account --
  3   and I apologize here for a moment, Mr. Chairman,
  4   my computer locks down on me every once in a
  5   while.
  6               THE CHAIRMAN:  We will be patient.
  7               MR. CURRIE:  What they have indicated
  8   is that they clearly want the construction to
  9   proceed in the most cautious way, and it is based
 10   upon some very basic principles that they see are
 11   fundamental to Manitobans, and in particular
 12   fundamental to their ratepayers and people within
 13   the boundaries of their jurisdiction.
 14               The first principle is that the
 15   construction of this floodway is probably one of
 16   the largest undertakings that the province will
 17   see short of a hydro dam, which we have already
 18   been through.  And it will be with us for decades,
 19   if not centuries.  And one can't tell if it is
 20   decades, but certainly one could honestly put
 21   forward a century.  We have got a floodway
 22   construction right now that has lasted 35 plus
 23   years.  We know it is going on into the future.
 24   Those are definitely decades.  It will be a
 25   project that our children's children will have to
00015
  1   deal with in their generations.  It is a project
  2   which has and will continue to have a significant
  3   impact on the most valuable resource in the
  4   province, and that is the three aquifers which are
  5   found within the participant municipalities'
  6   borders, and upon which most, if not many, of
  7   their residents rely on daily.
  8               Following those general thought
  9   patterns for the participant municipalities as to
 10   why the issue is so important to them, they feel
 11   that this commission review for them is a matter
 12   of preserving a very valuable resource, a resource
 13   that prognosticators state will some day perhaps
 14   be, within our children's generation, the most
 15   valuable resource known to mankind.  It is water,
 16   and will be the essence of life.  We already know
 17   what the critical elements of water and missing
 18   water mean to various states throughout America.
 19               Therefore, the participant
 20   municipalities submit that this should not be a
 21   race to either construct the floodway or to
 22   complete this review of the design and
 23   construction.  The approach they submit to be
 24   taken is the most cautious approach possible.  If
 25   it is perceived as a race to completion, they
00016
  1   submit, this will lead to incomplete and casual
  2   review, and ultimately in careless construction,
  3   the results of which will not easily or even
  4   cheaply ever be repaired.
  5               The experts for the municipalities
  6   have identified two major concerns for the
  7   aquifer:  A real risk to the aquifer of
  8   contamination; I think it can be fairly submitted
  9   without pointing to the evidence specifically and
 10   dragging us down through a review, if I need to I
 11   will do that.  Both sets of experts, participant
 12   municipalities' experts and the MFA acknowledge
 13   that aquifer contamination is likely.  However,
 14   they disagree as to both the extent and duration
 15   of that aquifer contamination.  It is going to be
 16   my submission, if you read the experts' reports
 17   that in fact the MFA will tell us it is a
 18   localized effect with short term consequences.
 19   And that if you read our experts' reports, which
 20   we will submit are both Wayne Clifton's report
 21   from Clifton & Associates, and Conestoga-Rovers'
 22   report out of Ontario, which we rely on, although
 23   they were commissioned by the coalition, they are
 24   being presented as part of our experts on the
 25   ground water issues.
00017
  1               Both of those experts, our experts,
  2   will tell us and have told us in their reports
  3   that these contaminant events have a likelihood of
  4   long term consequences, and much deeper
  5   consequences than just localized going
  6   regionalized.
  7               And herein lies the real problem with
  8   the EIS.  The MFA answers the questions under the
  9   EIS regarding long term effects and regionalized
 10   effects with a very blunt statement that they do
 11   not exist.  Hence, there is no information as to
 12   how one can mitigate both much broader effects and
 13   the regionalized effects, there is no information
 14   whatsoever regarding that point.
 15               And for the participant municipalities
 16   that is critical.  What are the long term regional
 17   effects truly going to be?  What are the plans
 18   that the MFA is going to put forward to deal with
 19   regional effects, or effects beyond the localized
 20   process or area that they claim will be the
 21   result?  What plans can be put in place?  The
 22   answer, as I submit we read the EIS, is that we
 23   will deal with this in both the design and
 24   construction phase.
 25               And therein lies the bigger problem.
00018
  1   If we take that component and put it into the
  2   design and construction phase, we have now
  3   eliminated public participation.  And that is the
  4   heart of this review.  This is the only true
  5   public participation that the participant
  6   municipalities get and that the public in general
  7   will be afforded.  And what I mean by that is that
  8   it is a true independent review.
  9               As you have stated, Mr. Chairman, in
 10   your introductory remarks, you are a board
 11   independent from the government.  You will make
 12   decisions based upon that independence.  If the
 13   public review is left to the design and
 14   construction phase, the MFA and the Manitoba
 15   Government potentially, through the Department of
 16   Conservation, will be the final arbiters of what
 17   design will be done.  And who is going to stand on
 18   the opposite side and say, there is more to be
 19   done, that there are better methods to mitigate?
 20               Mr. Chairman, this will help me only
 21   in this way, to stop me from repeating myself,
 22   occasionally I will ask you, do I make sense?  It
 23   doesn't necessarily mean that you agree with me,
 24   but it certainly let's me pass on to the next
 25   point.  So I ask at this point, have you
00019
  1   understood the points that I have made up to this
  2   stage?
  3               THE CHAIRMAN:  Yes.
  4               MR. CURRIE:  Thank you.
  5               What happens in the submission of the
  6   participant municipalities with the EIS is that
  7   when they question these broader concerns, both as
  8   to regionalized and greater effects on the
  9   aquifers, and asking about what are your
 10   mitigation strategies, the answers are in effect
 11   dismissive.  They dismiss the possibility of
 12   long-term effects, and they virtually guarantee no
 13   meaningful or real public input.  Because once you
 14   are a proponent and you have made your mind up
 15   that this will not have an effect, you can say to
 16   us all you want that you will listen, but one has
 17   a very difficult time believing it.  And if we are
 18   really pushing forward with this sense, it is your
 19   role to put the public mind at ease that they have
 20   truly been heard, that they have had meaningful
 21   input.  And that is the whole essence of this
 22   hearing.
 23               I would like to just briefly talk
 24   about our brief, Mr. Chairman.  On page 12, I
 25   don't know if you need to necessarily jump there,
00020
  1   but if you would like to, that's certainly where
  2   I'm going.  I would ask the panel to move with me
  3   to the bullet point about two-thirds of the page
  4   down.
  5               Clifton, who is our expert, at that
  6   bullet point indicates that he sees a problem with
  7   the proponent's model and data.  He indicates that
  8   a great deal of effort has been expended on
  9   compiling a regional model and predicting the
 10   impacts of expansion of the floodway on the
 11   regional and local ground regime.
 12               THE CHAIRMAN:  Mr. Currie, I think
 13   some of us have different versions of your brief,
 14   so page 12 might not be the same for me as for
 15   you.
 16               MR. CURRIE:  My apologies.
 17               THE CHAIRMAN:  There were a couple of
 18   updates sent out.  Perhaps you might just refer to
 19   either the paragraph or the heading?
 20               MR. CURRIE:  Sure.  It is paragraph
 21   21, Mr. Chairman.  The heading should read, the
 22   participant municipalities' issues have not been
 23   addressed.
 24               THE CHAIRMAN:  Thank you.
 25               MR. CURRIE:  If we turn one page over,
00021
  1   we should see at the bottom a bullet point,
  2   Clifton identifies the problems with the
  3   proponents.  Thank you very much, Mr. Chairman.  I
  4   wonder if I might --
  5               THE CHAIRMAN:  It is the bullet,
  6   Clifton identifies?
  7               MR. CURRIE:  Correct.  I wonder if I
  8   might take a moment to grab some water?
  9               THE CHAIRMAN:  There is water right
 10   beside you there.
 11               MR. CURRIE:  Herein lies only one of
 12   many problems that we are going to submit, but we
 13   are going to say this is sort of the general gist
 14   of public input and the general gist of what
 15   public participation in this CEC Commission will
 16   do and should do.
 17               If we read Clifton's comments he
 18   states,
 19               "A great deal of effort has been
 20               expended on compiling a regional model
 21               and predicting the impacts of
 22               expansion of the floodway on the
 23               regional and local ground water
 24               regime.  The results purport to
 25               demonstrate that only local impacts
00022
  1               are to be expected.  These conclusions
  2               however are biased by the basic
  3               assumption upon which the model was
  4               based and include a considerable
  5               degree of uncertainty inherent in the
  6               modeling process.  It cannot be stated
  7               with certainty that impacts will be
  8               limited to the floodway corridor.  The
  9               models are too general and lack the
 10               precision and reliable data inputs to
 11               draw that conclusion.  The conclusions
 12               are premature and require
 13               substantially more investigation and
 14               analysis for confirmation."
 15   And that's where he is saying we are lacking
 16   information.  If you are going to use a model,
 17   surely to goodness use one that will work, and
 18   that will do and conclude what -- provide the
 19   conclusions that you find you want to draw from
 20   them.
 21               He concludes on the basis of current
 22   models that it is reasonable to assume that the
 23   effects of deepening -- and that's a questionable
 24   issue now because I think that the MFA has
 25   somewhat modified their proposal to say they won't
00023
  1   deepen necessarily, but I think it is a
  2   qualified -- and this is another issue -- it is a
  3   qualified "we will not deepen."  We will not
  4   deepen unless we have to is what their design
  5   model will say.
  6               And Clifton goes on to state,
  7               "It is reasonable to assume that the
  8               effects of deepening and operating the
  9               floodway will be observed several
 10               kilometres beyond the right-of-way
 11               limits and that an increased amount of
 12               seepage will flow from the already
 13               severely impacted aquifer."
 14   Now, he is referring to a point that I have not
 15   got to, Mr. Chairman, and that is of course the
 16   existing and the potential loss of water from that
 17   aquifer, which could be substantial.  It is
 18   currently, according to our experts, in the range
 19   of no less than 1300 Imperial gallons per minute,
 20   and may be upwards of 1700 Imperial gallons per
 21   minute, leaving the aquifer and pouring into the
 22   floodway.
 23               Clifton estimates in his report that
 24   that is a sufficient number of, or sufficient
 25   amount of water to supply a City of 30,000 plus
00024
  1   people per day.
  2               The aquifer is not an unlimited
  3   resource.  It must at some point have a capacity.
  4   And what do we mean by that?  There will always be
  5   water in the aquifer, I think that that's a point
  6   that many of the experts will concur on.  Whether
  7   it is usable water is going to be the question.
  8   Whether it is potable water is the real issue.
  9               And if we look at Clifton's report he
 10   will say that in the original construction of the
 11   floodway they saw a drawdown of 6 metres of water,
 12   that is a drop of roughly 18 plus feet of water
 13   over the aquifer within the area of the floodway.
 14   That's a significant drop.  These are real
 15   concerns.  Another 6 feet -- or 6 metres rather,
 16   or 2 metres, is not something we should be taking
 17   lightly.
 18               Recently, and I mean as recent as
 19   Friday of last week, there were meetings in
 20   Brandon regarding water in Manitoba and the
 21   preservation of that resource.  They have some
 22   very strong fundamental points of view, and the
 23   first and foremost is that we protect it.  And
 24   hence if we are going to protect it, if we are
 25   going to move forward, it makes sense to use the
00025
  1   best possible practice to preserve it, in any form
  2   of construction, including the floodway.
  3               Let's look at the models, let's assure
  4   ourselves that this will not happen, and let's do
  5   the right thing upfront.
  6               If we go through the hearings without
  7   the additional information related to -- and I
  8   could go through it, we have some of it in our
  9   brief and I have provided some to the Commission
 10   today, and I will finish up hopefully with that
 11   point.  But if the Commission agreed with the
 12   participant municipalities that both of these
 13   possibilities exist and that we should protect it,
 14   if that were something that the Commission thought
 15   was valuable, they would be making recommendations
 16   regarding the implementation of mitigation
 17   strategies.
 18               Where does that leave us though?  It
 19   eliminates any review on those mitigation
 20   strategies, because once you have made your
 21   recommendations, it is my position you are
 22   functus.  And you have asked me to define those
 23   terms.  It simply means you have no more authority
 24   to come back and re-review.  And that will be
 25   problematic for public concerns and the
00026
  1   participant municipalities, because they are
  2   looking to you as their opportunity to review
  3   those strategies, those mitigation strategies.
  4               It is also true that during this
  5   process that you may conclude that a license
  6   should not be provided for the project based upon
  7   the model that exists, or the proponent's
  8   proposal.  There are many problems with that.
  9   First off, I'm going to submit it is highly
 10   unusual and highly unlikely, because it is an
 11   extremely important project for Manitoba, and I
 12   don't think that anyone wants that result.  If
 13   that is the approach that is taken, additionally,
 14   it will surely lead to a greater uncertainty about
 15   the project and it will surely lead to a greater
 16   amount of delay.  There is no question that your
 17   refusal of a license will be problematic.
 18               So the reality is that the better
 19   process is to do it right the first time, get it
 20   in, get it right, do it right.
 21               If we wait for the design and
 22   construction phases for these concerns, they are
 23   well outside the Commission's review.  As I've
 24   indicated, the public process is critical.  It is
 25   something that we all have to have a feeling at
00027
  1   the end of the day that we were heard.
  2               And that's where I'm going to move to
  3   the critical parts of my brief, Mr. Chairman.  I
  4   was very happy to hear your earlier remarks that
  5   you feel that you were bound by the common law and
  6   its impact upon administrative tribunals, because
  7   of course that is a major premise upon which we
  8   base our case.
  9               The heart of your review, in our
 10   submission, is that you will be recommending a
 11   license based upon measures proposed to mitigate
 12   any adverse environmental impact, and we are
 13   submitting to you that our experts are telling us
 14   their reports are deficient on the long-term and
 15   regionalized effects and the mitigation therefrom,
 16   and it is necessary in a tribunal context that the
 17   opponents have an opportunity to review those
 18   mitigation strategies.  What are better
 19   strategies?  What are possible options beyond
 20   those put forward by the proponent?  Currently,
 21   they are, we submit, little if none, and when they
 22   do put them forward, what is the critical peer
 23   review?  Who is going to do that?
 24               And these participant municipalities
 25   are saying they want to do it because it is, in
00028
  1   fact, a fundamental issue for their constituents,
  2   it is in fact the thing for them.  If we read
  3   Wayne Clifton's report, he indicates that the
  4   aquifer may feed as many as 81,000 people.  There
  5   is no clear indication that he is wrong or right
  6   on the number, however, one of the things that we
  7   can say is that it likely feeds most, if not all,
  8   of the participant municipalities' residents.  The
  9   exception being that there is some piped water,
 10   treated water within some of the municipalities,
 11   but it does not service their whole constituent or
 12   ratepayer base.
 13               It is our submission that your mandate
 14   will also require you to consider any residual
 15   adverse effects, which are another way of saying
 16   what are the mitigation strategies for these
 17   residual effects.  But it maybe goes deeper than
 18   that.  It may go deeper to, what are the
 19   compensation models that might be in place should
 20   we have a problem with the aquifer where someone's
 21   well is completely affected?  And what is the
 22   public's review of that process?  Should there be
 23   something at least in a model basis or some
 24   attempt to tell us how we are going to deal with
 25   the longer term impacts, both as to -- even if
00029
  1   they are correct that it is only localized, but if
  2   it becomes regionalized, who is going to take the
  3   responsibility?
  4               Again, our expert points out that if
  5   we ignore that issue of responsibility, the cost
  6   of repair, so far as it is known, will lie to the
  7   local governments or the participant
  8   municipalities.  And is that equitable?  Does it
  9   make sense, and is there anything in the
 10   proponent's project which addresses it?
 11               If I can move you then,
 12   Mr. Chairman -- I have it as paragraph 6 in my
 13   brief.  It should read, "the broad mandate of,"
 14   Mr. Chairman.
 15               "It is the submission of the
 16               participant municipalities that it is
 17               the broad mandate of this Commission
 18               to concern itself with the following:
 19               The aquifers of which I have spoken
 20               about a great deal this morning.  The
 21               ceiling of the aquifer and what are
 22               the plans for the sealing?  How are
 23               they to be accomplished?  What are the
 24               depths upon which they will seal off
 25               the aquifers?  Should they seal the
00030
  1               existing problem, and what are their
  2               plans to do so?  Erosion of the river
  3               banks should be considered.  Ice jams
  4               and back flooding..."
  5               THE CHAIRMAN:  Could we just interrupt
  6   for a minute?  Excuse me, we can't have another
  7   camera in that spot blocking off the public.
  8   
  9             (OFF THE RECORD DISCUSSION)
 10   
 11               MR. CURRIE:  I guess I don't want to
 12   run through and read each one of the points, Mr.
 13   Chairman, I think you are quite capable of doing
 14   that yourself.  I really want to get to the heart
 15   of my point, which is that each of these points
 16   require at least public dialogue on the
 17   possibilities of mitigation.  They require an
 18   analysis of the strategies that they are going to
 19   use to repair them.  It requires an analysis of
 20   some sort from the proponent as to how they might
 21   compensate the municipalities for unanticipated
 22   costs.  And what are those?  Unanticipated costs
 23   are the Dunning Road crossing, what is going to
 24   happen to it?  There is going to be changes there.
 25   Who is going to pick up the balance of the problem
00031
  1   once the change occurs?  Who is going to pay for
  2   the moving of water lines for the RM of East St.
  3   Paul?  Who is going to ultimately be responsible
  4   for that, and how is that going to be paid?  There
  5   is no discussion about that.  And those are
  6   certainly things that the participant
  7   municipalities would be asking the Commission to
  8   make recommendations on.
  9               If you are going to create a
 10   construction for a project that has an adverse
 11   effect on some existing matter, surely to goodness
 12   there is an equitable position to say that the
 13   MFA, or whoever is the constructing authority,
 14   should be responsible for the cost of those
 15   changes.  And there is no discussion of that in
 16   the EIS, and there is no discussion on the table
 17   today and then therefore there is no opportunity
 18   to make a reasonably strong recommendation.
 19               What is also missing from the EIS are
 20   the cumulative impacts from the initial floodway
 21   construction.  And there is a difference, Mr.
 22   Chairman, between repairing old consequences, and
 23   addressing cumulative impacts.  And there is
 24   people much more astute at this concept than I am,
 25   but I am going to give you my blunt version of it,
00032
  1   if you will.
  2               There are existing problems with the
  3   floodway which we all acknowledge.  When you add
  4   an additional problem, potential problem, problem
  5   one is not problem one any more, it is problem one
  6   plus a little bit, what we call a cumulative
  7   effect and we don't know exactly.  It is one plus
  8   one plus a little bit.  So it may not add up to
  9   two.  So two problems don't necessarily add up to
 10   two, it adds up to much more, and the cumulative
 11   effect is that additional amount past two in a
 12   very simple way.
 13               And those cumulative effects need to
 14   be addressed.  They need to somehow have a
 15   strategy in place that if this is the cumulative
 16   effect, we are going to manage it in this way.
 17   And to answer it in the construction and design
 18   phase, to repeat myself, is to say that it
 19   disposes, dismisses and eliminates public review,
 20   true meaningful public review.
 21               It is our submission, Mr. Chairman,
 22   that you have the authority to request this
 23   additional information.  And to request not a
 24   compliance with the EIS, because I think -- and it
 25   is argued it may be out of your jurisdiction, but
00033
  1   certainly that they have a proposal put forward to
  2   the Commission that answers many of these problems
  3   before the Commission hearing starts.  Because not
  4   only does it take out of the public meaningful
  5   input, it also quite frankly, takes out the CEC's
  6   input.  You have no recommendations on the design
  7   and construction phase, that's well past you.
  8               I anticipate, Mr. Chairman, and I'm
  9   moving in this direction, if we can move to
 10   paragraph 11 of my brief, that one of the concerns
 11   will be that the information is not required.
 12   That it is not part of the proposal.  And in
 13   paragraph 11, we submit that the EIS guidelines in
 14   this case have asked for these proposals and this
 15   information.  And we are going to state that the
 16   information is clearly required pursuant to the
 17   guidelines for the EIS.  And they read, "Describe
 18   how concerns and issues raised by the public were
 19   incorporated into the development of the project
 20   including its design, impact, mitigation and
 21   monitoring."  And it is telling them you gotta
 22   look at mitigation, and you have gotta consider it
 23   long term, discuss any unsolved issues that were
 24   raised by stakeholders during the assessment
 25   process.
00034
  1               Well, this is certainly an unresolved
  2   issue because we have experts that say there are
  3   long term consequential contamination effects
  4   possible on this aquifer, and the long range
  5   distant effects beyond localized effects.  There
  6   is no discussion as to how they legitimately
  7   dismiss that, and don't concern themselves with
  8   it.
  9               Provide a detailed description of the
 10   proposed monitoring and follow-up activities.
 11   Well, they have eliminated that requirement by
 12   stating that there is no long term or regionalized
 13   effects.  They don't have to monitor it or
 14   consider it.  Describe the equipment to be used,
 15   the parameters to be measured, the methodology and
 16   frequency of measurement and the mechanism for
 17   reporting results of the proposed monitoring of
 18   the environmental conditions affected by the
 19   project.
 20               Last, all of the matters that we have
 21   raised before the Commission I can tell you that
 22   there is nothing in the EIS that's going to
 23   address those issues, because effectively we have
 24   been told that they do not exist.
 25               It is our submission that the
00035
  1   Commission can evaluate the proponent's compliance
  2   with the EIS to the extent that it controls its
  3   jurisdiction to hold a proper hearing.  I would
  4   refer to it as evidence of the proponent's
  5   proposal.  And there is a distinction, because
  6   there is an argument to be made that the
  7   Environmental Act doesn't necessarily allow you
  8   the EIS proposal and review.  However, the
  9   evidence is that if you look at that EIS and the
 10   guidelines, you can come to your own conclusions
 11   upon your own jurisdiction to decide whether in
 12   fact there is going to be a proper public hearing
 13   without this further input.  Did I make sense, Mr.
 14   Chairman?
 15               THE CHAIRMAN:  Yes, certainly.
 16               MR. CURRIE:  Thank you.  And I
 17   undertake once again to tell you that I don't take
 18   it that you agree with me, I take it that you at
 19   least get me off that point and get on.
 20               It is our submission, Mr. Chairman,
 21   that a fair interpretation of your own hearing
 22   guidelines are such to say that any prejudice to a
 23   participant by way of an inability to provide
 24   information or to challenge information is
 25   sufficient to invoke the fairness principles, not
00036
  1   only at common law, but within your own mandate,
  2   under your own statute.  And as I have already
  3   indicated, Mr. Chairman, if the project proceeds
  4   without this information and without addressing
  5   these issues, the Department of Conservation and
  6   the Minister will be the final arbiter, and that
  7   is not necessarily what the role of the CEC is.
  8   It is to hold an independent, thorough public
  9   review, to give recommendations to the Minister.
 10   And that means on everything, not just on what the
 11   proponent puts forward in their project.
 12               A point, Mr. Chairman, that I have
 13   been asked to make many times over, almost by a
 14   plethora of emails that came flying into my office
 15   when I forwarded my submission, is that you are
 16   not only licensing this project, you are licensing
 17   the whole of the floodway.  We can't license half
 18   a car.  Put it in simple terms.  We don't go to
 19   our insurance company and ask them to insure us
 20   from the back door to the trunk.  This is not
 21   something that's going to happen.
 22               Once you license the project, it is
 23   licensed.  It will be licensed forever.  And it
 24   will be on the whole of the project.  And what
 25   does that tell us?  That tells us in my
00037
  1   submission, that you have a greater authority then
  2   to consider both the existing state of affairs,
  3   and the remediation of those state of affairs, and
  4   the cumulative impact.  Not only do you have it on
  5   the authority of your statute, but now you have
  6   what I would refer to as an intellectual authority
  7   to do it.  There is a logical cohesiveness to
  8   that, if you will.
  9               If we proceed and there is a hearing
 10   and the issues are not addressed, the information
 11   is not provided, it is our submission that the
 12   proponent will have obtained a licence without
 13   identifying the extent of the environmental
 14   impacts.  And by this submission will have
 15   excluded mitigation of environmental impacts from
 16   the Commission's review.  As I pointed out, Mr.
 17   Chairman, mitigation is within your mandate.  No
 18   question.  Consequently the proponent will have
 19   excluded from having participated in the review
 20   the participant municipalities.  And hence they
 21   bring this motion forward today.
 22               Mr. Chairman, if you look at paragraph
 23   20 of our submission, you will see more
 24   information that is required.  And I submit
 25   without reading that through to you in any detail,
00038
  1   I have largely already addressed it in a much
  2   broader context, but that brings it to specifics.
  3               I might just address one or two of
  4   them that I hadn't already addressed, Mr.
  5   Chairman, and that was the data deficiency across
  6   all subject areas will be addressed in the
  7   construction environmental protection proposal
  8   which will be prepared by the project contractor,
  9   following licensing.  It is clearly that there is
 10   an anticipation that much of this information will
 11   be dealt with as on an I will deal with it when I
 12   have to basis.  And we are submitting that's
 13   simply not the way the review should go.
 14               Monitoring the effectiveness of clay
 15   plugs which may be relied upon to protect aquifer
 16   resources.  What are their strategies?  What is
 17   going on?  Are there better strategies, people
 18   with more information and should they be
 19   recommended?  We will never know unless we get the
 20   opportunity to speak to it.
 21               I'm going to leave the rest of those
 22   issues, Mr. Chairman, for your review at another
 23   time and hopefully you will take the time, and I
 24   urge you to look at paragraph 20 with your mandate
 25   and consider our comments.
00039
  1               One of the major considerations when
  2   you are looking at an adjournment of a hearing is
  3   where will prejudice lie?  Who will be affected
  4   the most by this process?  It is our submission,
  5   Mr. Chairman, that prejudice on a monetary scale,
  6   what I mean by that is how much we put experts
  7   out, how many times they might have to come back
  8   to the table for a further hearing, how much staff
  9   may be inconvenienced and indeed how much we might
 10   be inconvenienced ourselves, are not
 11   considerations, not within your mandate.  The real
 12   prejudice that has to be addressed is will there
 13   be a lack of meaningful input by the public as a
 14   result of the failure to provide the information
 15   prior to the hearing.  That's the true prejudice.
 16   That's the true test.  All other forms of
 17   prejudice are likely to be inconsequential and
 18   pale to those.  They are in fact or it is in fact
 19   your fundamental duty, I submit, to make sure that
 20   the hearings are fair, full and complete.  And so
 21   when we look at the issue of prejudice, we urge
 22   the panel to consider that the failure to have
 23   full public participation and to have participant
 24   municipalities participate fully in all of the
 25   design and completion of this project as being the
00040
  1   number one major concern.
  2               Mr. Chairman, I'm nearing the end of
  3   my submission.  I know that I have three people
  4   who are watching me closely.  I wonder if I might
  5   take two minutes to consider their input very
  6   quickly and ask somewhat of a cleanup, but I
  7   promised I would be approximately an hour and a
  8   little bit and I realize I'm near that number
  9   already.  If I could take two minutes, I would
 10   appreciate it.
 11               THE CHAIRMAN:  Certainly.  And you are
 12   not limited to any time, and you will have an
 13   opportunity to make some final comments after all
 14   of the other presentations as well.
 15               MR. CURRIE:  Thank you, Mr. Chairman.
 16   
 17                   (RECESS TAKEN)
 18   
 19               THE CHAIRMAN:  Back to order.  Mr.
 20   Currie.
 21               MR. CURRIE:  Thank you, Mr. Chairman,
 22   I thank you for the brief break.  What I did find
 23   out was that there was one concern and that was
 24   with regards to the definition of cumulative
 25   impact, and that there is a greater definition
00041
  1   found within the Canadian Environmental Act and
  2   that's where I should really drive you to.  It
  3   requires you to consider the past, present and
  4   future concerns of two projects.  And so that
  5   gives you even greater authority.  So with that,
  6   that was one comment that I got.  The rest seem to
  7   be that I can pretty much conclude here soon, with
  8   the exception of one of the reeves would like to
  9   make a brief submission either now or during the
 10   public process to address what they would consider
 11   a more personalized version of what I had to say,
 12   in a different way, if that pleases the chair in
 13   some capacity, if we could accommodate that.
 14               THE CHAIRMAN:  Yes, we would certainly
 15   accommodate that.  That's within your rights in
 16   presenting your case.
 17               MR. CURRIE:  Thank you.  I think they
 18   will do it at the rebuttal, if that pleases
 19   everyone.
 20               THE CHAIRMAN:  That's fair.
 21               MR. CURRIE:  Then I will wrap up with
 22   that, Mr. Chairman, and say that the participant
 23   municipalities and the public are really relying
 24   upon your review and process as their only true
 25   opportunity to speak to an independent panel about
00042
  1   all of these issues.  And that lies at the heart
  2   of this motion, that we need to know that we are
  3   being heard.  You may not agree with us, and
  4   that's fine, but at least we are being heard.  And
  5   that's the minimum that's required.
  6               And with that, Mr. Chairman, other
  7   than that I'm not sure how the chair deals with
  8   the submission itself, but whether I mark it as an
  9   exhibit or whether it becomes part of something in
 10   the cause, I will ask the chair at this point, I
 11   would like to have it marked as some identifiable
 12   record, if it pleases you.
 13               THE CHAIRMAN:  I should have noted
 14   that at the beginning.  It is a good point, Mr.
 15   Currie, thank you for reminding me.  Your notice
 16   of motion, your brief in support of your motion
 17   and as well as the respondent's brief will be
 18   filed or recorded either as exhibits or as matters
 19   of record.  So it will become part of our record.
 20               MR. CURRIE:  Okay.  And maybe with
 21   that, Mr. Chairman, could I ask perhaps the
 22   secretary, are we dealing with exhibit 1 as the
 23   notice of motion, exhibit 2 as the submission of
 24   the applicant.
 25               MS. JOHNSON:  You are correct, your
00043
  1   motion is exhibit 1 and the brief will be exhibit
  2   2, and the following documents from the other
  3   participants will be numbered accordingly.
  4               MR. CURRIE:  Thank you very much.
  5   
  6               (EXHIBIT 1:  Motion, Manitoba Clean
  7               Environment Commission, Between RM of
  8               East St. Paul, St. Clements and
  9               Springfield)
 10   
 11               (EXHIBIT 2:  Motion Brief of the
 12               Participants before the Manitoba Clean
 13               Environment Commission, February 14,
 14               2005, 9:00 a.m.)
 15   
 16               THE CHAIRMAN:  Our normal procedures
 17   are if any of the panelists have any questions of
 18   clarifications, we will ask them at this time.
 19   Mr. Motheral, Mr. Webster?
 20               MR. WEBSTER:  Thank you, Mr. Chairman.
 21   It seems to me that one of your major points, Mr.
 22   Currie, is that the baseline for the EIS, being
 23   that the current floodway is where we are starting
 24   from, is one of the major issues that you are
 25   dealing with, is that correct?
00044
  1               MR. CURRIE:  Correct.  Thank you, Mr.
  2   Webster.
  3               MR. WEBSTER:  And that the fundamental
  4   approach that you are taking could be summed up as
  5   being a precautionary principle?
  6               MR. CURRIE:  It is absolutely correct.
  7               MR. WEBSTER:  Can I ask you then were
  8   these objections raised earlier in the process,
  9   did you actually raise these kinds of issues
 10   during the process leading up to the hearing with
 11   the Authority?
 12               MR. CURRIE:  I think in fairness, Mr.
 13   Webster, that in fact they weren't addressed in
 14   the same way as what we have put them to the
 15   Commission.  So I can't honestly say that they
 16   were put to the MFA in that capacity.  What was
 17   put to the MFA were questions about the impacts,
 18   expecting to come back with answers that would fit
 19   within the cautionary principles and fit within
 20   what I would say is a baseline model.
 21               What came back instead was an absolute
 22   no.  These are not concerns.  And so it makes no
 23   sense then to go back and say, did you consider
 24   the cautionary principles.  There are two issues
 25   with that, Mr. Webster.  One is that the time line
00045
  1   was extremely compressed.  In a project of this
  2   magnitude, we got from what I recall in the
  3   evidence somewhere around the 26th of November,
  4   sort of the marching orders to get everything in
  5   and concerns raised and addressed.  And that those
  6   questions were answered then by somewhere in the
  7   middle of January.  And when you get back a no and
  8   you are set for a hearing on February 7, it
  9   changes the context within which you start to
 10   present questions.  Simply when you get a no, and
 11   then you are asked to respond, I don't have
 12   necessarily on retainer my expert.  I have to send
 13   it out to him and say here are the responses.  He
 14   then is, you know, like every other Canadian,
 15   enjoying a winter holiday, I too would like some
 16   time off, and suddenly February 14 rolls upon us
 17   much quicker.  And certainly from my perspective
 18   it was January 31 that I had to be in tune because
 19   that was the time limit upon which I had to have
 20   my submissions before the CEC.  So I hope that
 21   answers your question, Mr. Webster.
 22               MR. WEBSTER:  It is a fundamental
 23   position or part of your position, as I see it,
 24   that the baseline for the EIS is a point of
 25   departure between what your clients are looking at
00046
  1   and what the Floodway Expansion Authority has
  2   looked at?
  3               MR. CURRIE:  Correct.
  4               MR. WEBSTER:  And that's something
  5   that wasn't raised, that particular issue was not
  6   raised until this brief?
  7               MR. CURRIE:  I'm not sure that that's
  8   accurate, that particular principle is accurate.
  9   I was talking more to the other.  I would have to
 10   honestly look through the responses and questions.
 11   I apologize, Mr. Webster, I don't have it off the
 12   top of my head.  If I could get back to you with
 13   an answer on that?
 14               MR. WEBSTER:  Thank you.
 15               THE CHAIRMAN:  You can bring that
 16   during --
 17               MR. CURRIE:  On an anecdotal basis,
 18   Mr. Webster, and I prefer to look at the evidence
 19   directly, I am told that it has been a constant
 20   discussion with the MFA, that there is a baseline
 21   concern, that we are looking at the cumulative
 22   impacts both as to the past, existing and present.
 23   And now that I think about it, I can say there is
 24   something on cumulative impacts in those responses
 25   but I would have to really -- I would, rather than
00047
  1   be flippant about it or wrong, I would rather look
  2   if I could.
  3               MR. WEBSTER:  Thank you.
  4               THE CHAIRMAN:  You can bring that up
  5   in your closing comments, Mr. Currie.
  6               MR. CURRIE:  Thank you, Mr. Chair.
  7               THE CHAIRMAN:  Thank you very much.
  8   We will take a short break until 10:30, so 15
  9   minutes.  I would ask you to be back here promptly
 10   at 10:30.  Prior to taking the break, let me note
 11   that there are copies of the respondent's brief on
 12   the front table.  For those of you who may wish to
 13   look at them, please help yourself, and I would
 14   ask the respondents to get in place for 10:30.
 15   
 16              (Proceedings recessed at 10:20 a.m.
 17               and reconvened at 10:35)
 18   
 19               THE CHAIRMAN:  Mr. Handlon.
 20               MR. HANDLON:  Thank you, Mr. Chair and
 21   members of the Commission.  My name is Rick
 22   Handlon.  I'm a lawyer with the Pitblado law firm.
 23   We are counsel to the Manitoba Floodway Authority,
 24   and I'll be referring to it as either MFA or the
 25   Floodway Authority.  With me to my right is
00048
  1   Professor Bryan Schwartz, who is counsel to our
  2   firm and who is also professor at the law school,
  3   University of Manitoba.  To his right is
  4   Mr. McNeil, who is the vice-president of
  5   hydraulics for the Manitoba Floodway Authority.
  6   And to his right is Mr. Bert Smith from KGS Group.
  7   And to his right, Dave Morgan with TetrES.
  8               You have our written brief, and I
  9   don't intend to go through it line by line, I will
 10   be making reference to it during the course of the
 11   submission.  I'll also be making reference to some
 12   of the points Mr. Currie made this morning and
 13   what is contained in his brief as well.
 14               Before beginning with the substance of
 15   the motion, let me say that we should put before
 16   this Commission the background to the Floodway
 17   Expansion and put it into perspective.
 18               The Floodway Expansion Project is
 19   first and foremost a measure to prevent potential
 20   environmental disasters by increasing the City of
 21   Winnipeg's reliable security against floods up to
 22   a magnitude of one in 700 years.  It is a project
 23   that is important to all of Manitoba.  The
 24   physical protection it will provide goes beyond
 25   Winnipeg and through the Municipality of East St.
00049
  1   Paul to Lockport.
  2               The study of the expansion began a
  3   number of years ago in the aftermath of the 1997
  4   flood when Manitoba was painfully reminded of the
  5   destructive power of severe spring flooding in the
  6   Red River Valley.
  7               The issues related to this project are
  8   not those typical of an environmental assessment
  9   hearing in which there is tension between economic
 10   development on the one side and protection of the
 11   environment on the other.  The floodway expansion
 12   itself is aimed at better protecting the
 13   environment in Manitoba, both natural and
 14   developed.  In addition, it is a project that is
 15   important to the economy of this province.
 16               Mr. Currie spoke of the position of
 17   the municipalities.  I note from their brief that
 18   was filed some 10 days ago from the municipalities
 19   that they do support the floodway expansion.  The
 20   outline of the submission by Reeve Strang from the
 21   RM of St. Clements was to "support idea floodway
 22   expansion."  He points out, "must have guaranteed
 23   safe and plentiful drinking water."  He also adds,
 24   "appreciate efforts of floodway expansion
 25   authority."
00050
  1               I believe those words speak to the
  2   extensive consultive process that has been going
  3   on for well over a year.
  4               The Rural Municipality of East St.
  5   Paul presentation to the Commission states,
  6               "As we all know, the proposed project
  7               is a massive undertaking and is an
  8               extremely important project to the
  9               citizens of Manitoba."
 10   He goes on to state,
 11               "Due to the positive nature of this
 12               project, the RM of East St. Paul would
 13               like to go on record as saying that we
 14               do support in general terms the
 15               proposal for the expansion of the Red
 16               River Floodway."
 17   The consultant retained by the three
 18   municipalities who are bringing this motion,
 19   Mr. Clifton, in his report at page 15 states,
 20               "Despite the noted deficiencies..."
 21   in his lengthy report,
 22               "...and concerns, the municipalities
 23               recommend the Commission approve the
 24               floodway expansion project."
 25   But he adds,
00051
  1               "...with a number of specific
  2               conditions of approval to address
  3               their concerns."
  4   And then he goes on and details that.
  5               The reason I read those submissions is
  6   to bring home the fact that this is an important
  7   project, it's an important project to all of us.
  8   It's an important project to the municipalities
  9   themselves.
 10               I submit that what the municipalities
 11   are asking this Commission to do is premature.  To
 12   assess the full compliance of the guidelines by
 13   the EIS which has been filed requires in itself a
 14   whole hearing.  It's inconsistent to be in support
 15   of the floodway expansion and at the same time
 16   seek to have the hearings adjourned.  These
 17   hearings are an important step in the process of
 18   obtaining a licence under the Environment Act.  To
 19   cause these hearings to be delayed when there has
 20   been substantial disclosure and consultation, and
 21   the purpose of these hearings is to allow for
 22   public input, public comments on the project and
 23   the environmental assessment that is contained in
 24   the EIS is unreasonable.  If one supports this
 25   project and the concept of public hearings, when
00052
  1   the viewpoints of all interested parties, not just
  2   some, are important to be heard, then it is
  3   inconsistent, I submit, to seek to have these
  4   hearings adjourned.
  5               We submit that there should be no
  6   delay to the start of the hearing.  We have
  7   outlined in our argument section of our brief six
  8   main points why an adjournment is not warranted,
  9   not appropriate, and I submit not reasonable. I'll
 10   introduce these six main points and then come back
 11   to them individually.  The points are in bold
 12   headings beginning in page 7 of our brief.
 13               The first point is that the
 14   information provided in the EIS has been reviewed
 15   by PAT, the Project Administration Team, and found
 16   to be sufficient to warrant proceeding with these
 17   hearings.
 18               I would note, this Commission should
 19   place substantial weight on the fact that the
 20   Project Administration Team has made a
 21   determination confirming both the acceptability
 22   and the completeness of the EIS, which also
 23   includes the supplemental filings for public
 24   hearings.
 25               The second point is that the decision
00053
  1   of PAT is fully justified, given the extensive
  2   process of disclosure and consultation that MFA
  3   has conducted and in which the municipalities have
  4   had an opportunity to participate and have in fact
  5   participated.  Third point -- and I would just on
  6   that second point, the conclusion of the
  7   independent assessment by environmental experts
  8   that you will hear from in this hearing, that were
  9   the authors of the EIS, is that there be no likely
 10   significant adverse effects from the expansion,
 11   including ground water.
 12               The third point is that it's not
 13   feasible or legally required at this stage for MFA
 14   to address all of the details of the final design
 15   of the project, or the extra margins of safety
 16   against unlikely or unanticipated adverse effects.
 17               Mr. Smith pointed out to me this
 18   morning that the construction of this project is
 19   scheduled to continue for a period of over four
 20   years involving six highway bridges, six railway
 21   bridges and numerous other crossings.  It is a
 22   substantial project and cannot -- it is
 23   unreasonable to suggest that every detail in the
 24   final design could be available for this, at the
 25   time of this hearing.  In fact, if every detail of
00054
  1   the final design was in place, it would mean that
  2   the final design was locked in.  There wouldn't be
  3   any ability to change it.
  4               I think that as identified by PAT,
  5   this is the appropriate time for public hearings
  6   to get the public input, including the input of
  7   the three municipalities.
  8               The fourth point is that these
  9   hearings are only one component of the public
 10   participation process, which is part of the
 11   cooperative environmental assessment established
 12   under the Canada/Manitoba agreement.  We submit
 13   that it is in the public interest that this
 14   hearing proceed in both a thorough and expeditious
 15   manner.
 16               The fifth point is, while the
 17   municipalities have further opportunities to
 18   express their concern, delay in these proceedings
 19   would risk serious and irreparable harm to the
 20   public.  It is important in the pubic interest
 21   that this hearing proceed and not be delayed.  We
 22   submit that this is not a race, as suggested by
 23   Mr. Currie.  The studies regarding the floodway
 24   expansion have been ongoing since 1997.  In some
 25   people's mind, the process has been too slow.
00055
  1               I submit that when one deals with the
  2   balance, when considering the submission of
  3   Mr. Currie as to a delay of this hearing and
  4   proceeding with this hearing, that the balance is
  5   tipped overwhelmingly in favour of proceeding at
  6   this point.
  7               And our final point is that delaying
  8   these proceedings would add greatly to the cost of
  9   the public hearings themselves, and would cause
 10   substantial inconvenience to both this Commission,
 11   the Manitoba Floodway Authority, and many of the
 12   participants.  And that is a factor that must be
 13   considered.  Even in a court hearing, even in a
 14   tribunal that deals with, makes final decisions
 15   affecting people's rights, that is a consideration
 16   when there is an application for an adjournment.
 17               If you can go to, I ask you to go to
 18   our statement of facts just so I can outline some
 19   of the relevant facts that are outlined in that
 20   section of our argument, and it begins at page
 21   number 2.  Paragraph 1 deals with the point that I
 22   started off with as to the importance of the
 23   Floodway Expansion Project.  Paragraphs 2 through
 24   8 deal with the regulatory framework that I'll get
 25   into more detail on, because this process, this
00056
  1   public hearing is part of the cooperative
  2   environmental assessment process as agreed to
  3   between Canada and Manitoba, and it is important
  4   to understand and to appreciate and to consider on
  5   this application that regulatory framework.
  6               Paragraphs 9 through 22 deal with the
  7   chronology of events, beginning with the filing of
  8   the proposal by Manitoba Floodway Authority for
  9   the floodway expansion, through the draft
 10   guidelines which sought public input and received
 11   public input, the final guidelines that were
 12   issued, the development of the EIS, the filing of
 13   the EIS in the summer of 2004, the continuing
 14   public consultation dealing with the EIS, the
 15   comments that led to a list of deficiencies and
 16   the supplemental filing that was filed by MFA in
 17   the fall of 2004.
 18               It also deals with the IR process that
 19   this Commission instituted or set out in October
 20   of 2004.  That's a measure that -- that's a
 21   procedure that is specific to this hearing.  It
 22   was not part of the process of the cooperative
 23   environmental assessment as undertaken by PAT, but
 24   it was a very substantial process that allowed the
 25   participants to this hearing to pose questions,
00057
  1   additional questions regarding details on the
  2   environmental assessment impact statement and to
  3   get input from the Manitoba Floodway Authority.
  4               And as you know, there was a large
  5   volume of responses, thorough responses to those
  6   information requests, and there was an opportunity
  7   to the participants if they felt that certain
  8   questions, information that they sought was
  9   insufficient, to allow them the opportunity to
 10   make further submission to the Commission to deal
 11   with any alleged deficiency.  And we point out in
 12   our argument the municipality did not avail
 13   themselves of the opportunity, as offered by this
 14   Commission, and that is a factor to be considered.
 15               In the Statement of Facts, we refer to
 16   a number of documents.  Perhaps I could just take
 17   you through that.  Tab 1 is the agreement from
 18   2000 between Canada and Manitoba on environmental
 19   assessment cooperation.  That's the umbrella
 20   agreement.
 21               Tab 2 is the cooperative environmental
 22   assessment process concerning this project.  It
 23   was the agreement, it sets outs the agreement and
 24   the steps which the cooperative environmental
 25   assessment would take place in respect to this
00058
  1   project.
  2               Tab 3 are the terms of reference.
  3               Tab 4 are the substantial responses to
  4   the questions put forward by the municipalities in
  5   the information request, the IR process.
  6               Tab 5 is the letter from PAT, the
  7   project administration team, of January 14, 2005.
  8               And I would point out the last
  9   paragraph of that letter, the letter from the
 10   chair, Trent Hreno, indicating that as director of
 11   the Environmental Approvals Branch, I would
 12   encourage you -- that is to this Commission -- to
 13   convene a public hearing on the project at the
 14   earliest opportunity.
 15               Tab 6 is a letter from the Minister of
 16   Water Stewardship from last Friday to the
 17   municipalities, the three municipalities and other
 18   municipalities, dealing with some of the issues
 19   that had been raised originally in the
 20   municipalities' letter of January 26th.  And
 21   subsequent are some references to cases in
 22   administrative law text.
 23               The first point is that the
 24   information provided in the EIS has been reviewed
 25   by the project administration team and has been
00059
  1   found sufficient to warrant proceeding with these
  2   hearings.  And I would ask to direct you back to
  3   tab 1 of our brief which is the umbrella
  4   agreement.  It is the agreement between Canada and
  5   Manitoba that sets out, where there is a project
  6   that has federal components and provincial
  7   components, and there's a need to have
  8   environmental reviews, both provincially and
  9   federally, that there will be a cooperative effort
 10   in facilitating those environmental reviews.  And
 11   if I could just read the part of the preamble, the
 12   last paragraph of the preamble, it states,
 13               "A cooperative environmental
 14               assessment will be undertaken to
 15               generate the type and quality of
 16               information and conclusions on
 17               environmental effects required by all
 18               parties making decisions on the basis
 19               of the cooperative environmental
 20               assessment."
 21   Parties as referred to is both the federal
 22   government and the provincial governments.
 23               If we go on in the agreement at page
 24   4, and I'll just identify the headings, there is
 25   the sections dealing with preliminary
00060
  1   consultations.  The next page deals with sharing
  2   of information, both federally and provincially,
  3   determining environmental assessment
  4   responsibilities, both federally and provincially,
  5   giving notice about participation in the
  6   assessment.  And then skipping a page, going to
  7   page 7, the determination of the lead party.  In
  8   this case, the lead party was determined to be the
  9   Province of Manitoba.
 10               And at the bottom of page 7, and this
 11   is the important part because it establishes the
 12   Project Administration Team, or as we refer to it
 13   as PAT, and I won't get into the details of how
 14   that's established, but I turn your direction to
 15   paragraph 34,
 16               "The Project Administration Team will
 17               be responsible for managing the
 18               cooperative environmental assessment
 19               including..."
 20   and there's paragraphs "A" through "G",
 21               "...coordinating public participation
 22               in the cooperative environmental
 23               assessment as per clause 35 of the
 24               agreement.  "B", coordinating
 25               consultation between the parties, the
00061
  1               proponent and the public.  "C",
  2               establishing a mutually agreeable
  3               schedule for the cooperative
  4               environment assessment as per clauses
  5               36 and 37.  Setting the information
  6               requirements for assessing the
  7               environmental effects of the project
  8               as per clauses 39, 40 and 41."
  9   And it's that section, that responsibility that
 10   was in part the process that led to the
 11   development of the draft guidelines for the
 12   Environmental Impact Statement and the
 13   finalization of the guidelines.
 14               "E, ensuring that the information
 15               pertaining to the environmental
 16               effects of the project is analyzed as
 17               per clause 42.  "F"..."
 18   and this is a very important responsibility that
 19   deals with the very heart of this motion,
 20               "...assessing the completeness of the
 21               environmental assessment information
 22               and discussing the findings of the
 23               cooperative environmental assessment
 24               report and any proposed
 25               recommendations to decision makers."
00062
  1               Going on, section 35 deals with
  2   details of public participation; 36 and 37, the
  3   assessment schedule, because it's important not
  4   only to have this process, but have this process
  5   proceed in a timely and efficient manner and there
  6   are provisions dealing with that.
  7               Next page, page 9, heading,
  8               "Setting the environmental assessment
  9               information requirements."
 10   That is what I dealt with or mentioned just a
 11   moment ago, specifically developing the draft
 12   guidelines which were then open to public
 13   comments, or review and comments.  And then the
 14   heading in the middle of the page,
 15               "Determining completeness of the
 16               environmental assessment information."
 17               So that's the umbrella agreement.  Now
 18   there is a specific agreement as I indicated at
 19   tab 2 which is specific to this project.
 20               If you turn to page number 3 under
 21   "purpose", and I'll read the first paragraph.
 22               "The purpose of this document is to
 23               set out the steps to be taken to
 24               ensure the cooperative administration
 25               of the environmental assessment of the
00063
  1               project.  The parties intend to
  2               cooperate in the EA process in a
  3               manner that meets the requirements of
  4               both Canada and Manitoba."
  5   The next page, under project administration team
  6   in the second paragraph,
  7               "The PAT will be responsible for
  8               making required decisions during the
  9               administration of the cooperative
 10               environmental assessment for the
 11               project."
 12   And then there's a section that goes on, pages 4
 13   over to page 5, which sets out the assessment
 14   process.  And I won't go through the details, but
 15   the assessment process involves the development of
 16   the draft guidelines for the information
 17   requirements of the EIS, the final guidelines, the
 18   review period for public review on the EIS once
 19   it's filed, the allowing for comments on the EIS
 20   both from the public and from TAC, the technical
 21   advisory committee which is assisting PAT.
 22               And if you look at the top of page 5,
 23               "The public will be formally invited
 24               to provide comments on the project,
 25               the Environmental Impact Statement, or
00064
  1               any concerns they have relating to the
  2               project to the chairman of the PAT
  3               within the same 60 day review period."
  4   And that's after the EIS.  The next paragraph,
  5               "The chairman of the PAT will, at the
  6               conclusion of the 60 day review
  7               period, provide on behalf of the PAT
  8               written comments regarding the draft
  9               EIS to the proponent, including any
 10               requirements for additional
 11               information that would be needed to
 12               complete the environmental assessment
 13               documentation.  In the event
 14               additional environmental assessment
 15               information is provided by the
 16               proponent, a 30-day review period will
 17               be provided to assess the information
 18               at the conclusion of the review noted
 19               above and after the resolution of any
 20               identified information deficiencies."
 21   And I'll just stop there.  That process was in
 22   fact undertaken in this case, and I won't go
 23   through all of the facts in our statement of
 24   facts, but we have the chronology of events.  And
 25   there was a supplemental filing, there was a
00065
  1   request for further information from the PAT to
  2   the proponent, and there was a supplemental filing
  3   which is part of the material here and which would
  4   be part of the material for this hearing.
  5               It was after receipt and review of the
  6   EIS, the supplemental filing, that the PAT,
  7   according to its responsibilities, and I'll just
  8   read on in that paragraph,
  9               "The PAT will determine the
 10               completeness and acceptability of the
 11               environmental assessment information.
 12               Directly following this determination,
 13               notice will be provided to Manitoba's
 14               Clean Environment Commission to
 15               schedule the necessary provincial
 16               hearings.  Manitoba's Clean
 17               Environment Commission will convene
 18               public hearings regarding the
 19               environmental assessment for the
 20               project and provide a report on the
 21               conclusions and recommendations
 22               reached by the Commission in
 23               accordance with the terms of reference
 24               to be issued by Manitoba's Minister of
 25               Conservation."
00066
  1   So we see from the regulatory framework that while
  2   there are terms of reference, a direction from the
  3   Minister to this Commission to hold this hearing,
  4   that it is part of the cooperative environmental
  5   review process between Canada and Manitoba.  And
  6   in order to facilitate that process, to make it
  7   the most efficient process possible, there's an
  8   establishment of a project administration team
  9   that will undertake the responsibilities that I've
 10   stated.  Not only the responsibilities to give
 11   guidelines to the proponent, what does the
 12   Environmental Impact Statement need to deal with,
 13   but also once there's been a filing and a request
 14   for further information, that committee, that team
 15   makes the determination, is the material complete
 16   and thorough enough to allow for the hearings, the
 17   public hearings of this Commission to proceed.
 18               So on this point, and I have taken a
 19   lot of time on this one point but it's very
 20   important, this Commission, when dealing with this
 21   request, and Mr. Chairman, you've correctly
 22   pointed out that it is an extraordinary request,
 23   should place substantial weight and show deference
 24   to the decision of PAT as to the acceptability and
 25   completeness of the EIS and the supplemental
00067
  1   filing for public hearings.
  2               I submit that the municipalities'
  3   position does not consider the role of PAT and the
  4   determination it has made.  They assert that there
  5   are unresolved issues, however, that ignores the
  6   role and responsibility of PAT in assessing the
  7   material that was filed, allowing for further
  8   public input, and then finally determining as to
  9   the completeness and the appropriateness of the
 10   material for the public hearing.
 11               It ignores the fact that, their
 12   position asking for an adjournment ignores the
 13   fact that they had an opportunity in January,
 14   pursuant to the direction of this Commission, if
 15   they felt that the information request responses
 16   that they received were insufficient, they had the
 17   opportunity to raise that in a formal way with
 18   this Commission.
 19               I believe, Mr. Chairman, in your memo
 20   you referred to an appeal, if the participants
 21   felt that the responses were not sufficient in
 22   allowing them to deal with these public
 23   hearings -- and this is a process that was unique
 24   to the Commission's hearing, not part of the
 25   overall cooperative environmental review process
00068
  1   of PAT -- that they had the right to bring that to
  2   the attention of this Commission.  The
  3   municipalities did not.
  4               And so now, at this late date, on the
  5   eve of these hearings, where we have -- and these
  6   hearings have been set for quite some time, they
  7   were set on a preliminary basis on the
  8   understanding that the steps of the cooperative
  9   process would evolve through the fall of 2004 and
 10   into 2005, to a point that the PAT would issue the
 11   direction to have these public hearings.  To now
 12   seek to adjourn the matter, when they themselves
 13   didn't avail themselves of an opportunity to seek
 14   further clarification, further details, I submit
 15   is inconsistent, and particularly with a project
 16   which they themselves support.
 17               Now, it is not to say that the public
 18   hearing, this public hearing can't be thorough and
 19   complete.  That is the purpose.  We want, and all
 20   parties should participate and should cooperate in
 21   making sure this public hearing is as thorough and
 22   complete as possible, but also done expediently.
 23   To request an adjournment at the 11th hour on the
 24   eve of the hearing is not cooperating, and I say
 25   this with respect, with the spirit of this
00069
  1   Commission's mandate.
  2               The second point, as I said, is the
  3   decision of PAT is fully justified by the
  4   extensive process of disclosure and consultation
  5   that the floodway authority has conducted and in
  6   which the three municipalities have full
  7   opportunity to participate.  So when I say, when
  8   we're talking about the decision, it is the
  9   decision made by PAT that the EIS material is
 10   complete and acceptable for a public hearing.  And
 11   I won't go through the details of all of the steps
 12   that were taken, they are set out in the
 13   paragraphs I referred to in the Statement of
 14   Facts.
 15               In light of the extensive process of
 16   disclosure and cooperative environmental review
 17   process, PAT determined it was timely to have
 18   these hearings.  Beyond this process, which was
 19   the basis of PAT's decision, this Commission has
 20   its own procedure for eliciting further
 21   information, as I mentioned the IR process.
 22               Dealing with the question of
 23   groundwater, which is an important issue to the
 24   three municipalities, I would direct the
 25   Commission to our brief, starting at page 9.
00070
  1               And page 9, paragraph 8, we point out
  2   that the three municipalities in their very
  3   recently submitted brief focus their concerns on
  4   groundwater issues.  And we point out there that
  5   these issues on groundwater have been dealt
  6   with -- it's not that they weren't dealt -- they
  7   were dealt with extensively in the EIS material.
  8   We have referred to certain provisions or certain
  9   excerpts from the EIS which deal with the
 10   groundwater issues.  That may not be all of them,
 11   but it includes the EIS executive summary, the
 12   main volume, the supporting volumes, the
 13   engineering documents that you have before you, or
 14   behind you rather, the supplemental filing,
 15   particularly section 2, and the specific responses
 16   to the information requests by the three
 17   municipalities.
 18               Their concerns are further addressed
 19   in the letter from the Minister of Water
 20   Stewardship which is at tab 6.
 21               And I submit that it would be unfair
 22   to the proponent and a distortion to this process
 23   to require MFA to once again document its position
 24   and findings on all of these issues prior to
 25   commencement on the actual hearings.
00071
  1               If you will recall initially there was
  2   a letter from the three municipalities, plus the
  3   City of Selkirk, City of Winnipeg, and other
  4   municipalities to delay these hearings.  And their
  5   request is set out in this letter to this
  6   Commission, and that's found in my learned
  7   friend's brief at tab "A".  And at that point in
  8   time, it's only a couple of weeks ago, the request
  9   was a request for a postponement of these hearings
 10   for four to six weeks.  And the stated reason for
 11   the request of postponement was to await the
 12   outcome meetings between municipalities and the
 13   government on unresolved issues that needed to be
 14   resolved prior to the hearings.  And so the
 15   request at that point in time was not on the basis
 16   that we now find is being advanced, that there is
 17   deficiency in the EIS, even though it's been
 18   determined to be complete by the project
 19   administration team, it was to allow further
 20   meetings with government.
 21               You'll see there are 12 points that
 22   are raised in this letter, and nine of those
 23   points find their way into my learned friend's
 24   brief, but now the change is that they are saying
 25   that there are deficiencies in the EIS, in the
00072
  1   filings of the expert reports, the consultants,
  2   but that's not the position that they took at that
  3   point in time.
  4               In fact, before I get to the result of
  5   that, at tab "C" of their brief, we have the
  6   lengthy letter from the Floodway Authority only a
  7   couple days later which deals with the specifics
  8   of each of those issues.  And you will now see
  9   from our brief that there had been meetings with
 10   government, with the Department of Water
 11   Stewardship.  There is an extensive letter -- or
 12   there is a letter from the Minister of Water
 13   Stewardship dealing with those concerns.
 14               Our position is a number of those
 15   concerns, although real to the municipality, are
 16   outside the scope of this hearing.  Some of the
 17   issues relate to matters that are relevant to this
 18   hearing, some not.  But there has been, I would
 19   submit, if you read the letter, some of the
 20   concerns that were raised by the municipality
 21   originally as the basis for their grounds to
 22   postpone the hearing have been dealt with by the
 23   Province of Manitoba.  And I submit if you look at
 24   that letter, and I don't intend to go through it
 25   in detail, a commitment on the part of Water
00073
  1   Stewardship.  It's on page 2 and I'll read it,
  2               "In addition, as I mentioned at our
  3               meeting, Manitoba Water Stewardship
  4               intends to initiate a comprehensive
  5               study of the two related aquifers in
  6               the region.  This work will include
  7               development of a groundwater three
  8               dimensional model."
  9   I am sorry, it's at page 2, it's at tab 6.
 10               MR. WEBSTER:  You said "C".
 11               MR. HANDLON:  I'm sorry, I didn't
 12   direct you over to our brief.  It is now in our
 13   brief.
 14               MR. WEBSTER:  Whereabouts are you?
 15               MR. HANDLON:  At tab 6.
 16               MR. WEBSTER:  Yes, page 2?
 17               MR. HANDLON:  Yes, and it's the middle
 18   paragraph, or just below the middle of the page,
 19   "in addition."
 20               MR. WEBSTER:  Thank you.
 21               MR. HANDLON:  I am sorry, I should
 22   have been clear in my direction.
 23               "This work will include the
 24               development of the groundwater three
 25               dimensional model that will determine
00074
  1               potential effects of additional water
  2               withdrawals arising from new
  3               developments on existing users and the
  4               sustainability of the aquifer system.
  5               This model will also be capable of
  6               incorporating regional scale water
  7               quality issues."
  8               So there's been an undertaking by the
  9   province to have a regional study, beyond the one
 10   issue of the floodway itself, but a regional study
 11   of all issues related to water supply and water
 12   quality in that region.
 13               My learned friend in his brief refers
 14   to and really, on a preliminary motion, that it is
 15   impossible to get into the details of the issues
 16   relating to the aquifers concerns that were
 17   referred to by my learned friend.  It requires a
 18   hearing in itself.  I can't do justice to refer,
 19   to deal with the details of those concerns.  We
 20   have our consultants, Mr. Smith, Mr. Morgan who
 21   will be dealing with those issues among the other
 22   issues in their presentation and will be subject
 23   to cross-examination.
 24               But my learned friend's brief refers
 25   to one report from Conestoga-Rovers and it's a
00075
  1   report that the proponent just received last week.
  2   And it's at page 13 of their brief and you don't
  3   need to go there.  But let me just read it.  This
  4   is one of the alleged deficiencies that stated,
  5               "More detailed water quality sampling
  6               program should be developed to better
  7               characterize the effects of the
  8               existing floodway on groundwater
  9               quality during a flood.  And
 10               mitigation measures need to be
 11               developed to protect residents from
 12               poorer groundwater quality due to
 13               infiltration of flood waters."
 14               Now, the Floodway Authority, as
 15   indicated through its consultants and through its
 16   assessment, that there will be no adverse effects
 17   to ground water.  However, they are committed to
 18   all mitigation efforts monitoring.  And quite
 19   frankly, if this is a deficiency, do we have --
 20   opposing rhetorical question, do we have to wait
 21   for a flood before we can get the information so
 22   the assessment can be done so we can then have a
 23   hearing?  I submit that the proper process is to
 24   raise the concerns in an organized and a thorough
 25   fashion through these hearings.
00076
  1               The third point, and that begins at
  2   page 11 of our brief and it's at the bottom of the
  3   page.  My point is it's not feasible or legally
  4   required at this stage for MFA to address all of
  5   the details concerning either the design or the
  6   extra margins of safety against unlikely or
  7   unanticipated adverse effects.
  8               Mr. Currie, in his submission, refers
  9   to certain portions of the guidelines as it
 10   relates to environmental protection plans.  But if
 11   you read right at the top of page 11 of our brief.
 12   The guidelines for the EIS specifically provide,
 13   in section 9, that, and this is a quote,
 14               "The EIS should also describe an
 15               adaptive management process that could
 16               be implemented in the event that the
 17               project has unexpected adverse effects
 18               or when mitigation measures may not be
 19               effective."
 20   The guidelines further state,
 21               "If regulatory approval for the
 22               project is provided, a project
 23               specific Environmental Protection
 24               Plan, EPP, shall be developed prior to
 25               construction."
00077
  1               The very guidelines themselves do not
  2   contemplate the details of an environmental
  3   protection plan related to construction at this
  4   stage.  These, and perhaps it might be helpful to
  5   refer to those guidelines specifically, and I'm
  6   going to ask you to turn back to my learned
  7   friend's brief, the very last tab where he has
  8   excerpts from the guidelines.  And the second last
  9   page is the section 9 that is partially reproduced
 10   in our brief.
 11   
 12               It's the very last tab.  It's actually
 13   page 17.  And you'll see the quotes that are in
 14   our brief start in the second paragraph under
 15   section number 9, the second or the last sentence
 16   the EIS should also describe.
 17               And then if you go down to the bullet
 18   points, you'll see,
 19               "The EPP should commit to the
 20               principles of adaptive management in
 21               addressing any unexpected effects.
 22               The EPP shall be developed to
 23               accomplish the following goals."
 24               And then there's a number of bullet
 25   points to facilitate the mitigation of
00078
  1   environmental effects through the full lifecycle
  2   of the project by providing field construction and
  3   operating personnel with clear instructions.  And
  4   then there's other details.
  5               So it's clear, from the guidelines
  6   themselves, that this alleged deficiency is really
  7   not a deficiency at all.  The proponent received
  8   guidelines for the preparation of Environmental
  9   Impact Statement.  It prepared its Environmental
 10   Impact Statement on the basis of what it told the
 11   guidelines were to be.
 12               These guidelines specifically stated
 13   that environmental protection plans, there had to
 14   be a commitment to environmental protection plans
 15   but they didn't have to be developed to final
 16   design criteria until construction.  That's not to
 17   say, and we go on in our argument to say there's
 18   been a commitment on the part of the Floodway
 19   Authority to consult now and into the future.
 20               If you turn to page 12 of our brief
 21   now on the same point that it's not feasible or
 22   legally required at this stage for MFA to address
 23   all of the details concerning these extra margins
 24   of safety.  And we have four bullet points, the
 25   final design of the floodway will not be completed
00079
  1   until after some additional consultations.  In
  2   fact, these very public hearings take place.  MFA
  3   will continue to listen to legitimate criticisms
  4   and concerns and make adjustments that it
  5   considers reasonable in light of such input or is
  6   required by the regulatory authorities.
  7               It's not possible to know every
  8   geotechnical detail associated with ground water
  9   in advance of the actual construction.
 10               Test holes cannot reveal every
 11   specific geological feature that might be
 12   encountered in the course of actual digging.  The
 13   authors are confident, however, there is no
 14   significant risk of a blowout or other event which
 15   could produce unexpected or serious harm,
 16   especially in light of the shift of the design
 17   away from deepening.
 18               The details of construction
 19   dewatering, monitoring programs and mitigation
 20   options are required to be submitted to Manitoba
 21   Water Stewardship for approval prior to proceeding
 22   and with work that might affect ground water.
 23   Certainly that combined with the commitment on the
 24   part of MFA to continue to consult with the
 25   municipalities provides the municipalities with a
00080
  1   level of security knowing that their concerns will
  2   be considered to be taken into account throughout
  3   this process including construction and after
  4   construction.
  5               And our last point is the point I made
  6   that the environmental protection plans are only
  7   required by the guidelines prior to construction.
  8               The fourth point is that, and I state
  9   it on page 12, these hearings are only one
 10   component of the public participation process
 11   which is part of the cooperative environmental
 12   assessment established under the agreement.  This
 13   Commission does not make a final decision
 14   regarding the licensing of the project.  The three
 15   municipalities will have opportunities to raise
 16   their concerns through these hearings.
 17               And that's what we encourage.  And
 18   also in the future.  We cite at paragraph 18 a
 19   case from Manitoba where Justice Hirshfield states
 20   in relation to this Commission,
 21               "does not adjudicate on issues nor
 22               does it make decisions.  It merely
 23               advises and makes recommendations to
 24               the Minister."
 25               And we point out section 7(3),
00081
  1               "following a public hearing, which
  2               advice and/or recommendations may be
  3               accepted or rejected."
  4               And I'll skip down to paragraph 20.
  5   The three municipalities will have the opportunity
  6   in these hearings to make their concerns known and
  7   test the information in the EIS both in
  8   cross-examination and through their own witnesses.
  9   If there remains concerns after these public
 10   hearings, the CEC's report and an ongoing public
 11   consultation, they will be free to make their
 12   concerns known to the Minister before the licence
 13   is issued.
 14               We point out, going onto the next page
 15   and the statement that I had made previously,
 16   paragraph 21.  MFA has already made it clear that
 17   these public hearings are not the end of the
 18   consultation process.
 19               And this statement wasn't made last
 20   week, it was made in the Environmental Impact
 21   Statement last summer.  "MFA," or MFEA at the
 22   time,
 23               "will maintain an ongoing public
 24               involvement program at least to the
 25               end of the Floodway Expansion's
00082
  1               construction phase.  This will include
  2               regular meetings with municipalities
  3               and stakeholders."
  4               And it goes on.  Paragraph 22.  At the
  5   licensing stage, the Environment Act provides
  6   formal recourse for any affected party that
  7   objects to the issuing of a Class 3 licence.
  8   Under the provisions of subsection 28(1), an
  9   appeal can result in a decision the Lieutenant
 10   Governor in Council to hold additional public
 11   hearings, to vary or cancel the licence or order
 12   the Minister to reconsider the granting of the
 13   licence.  And in fact, a provision that goes on to
 14   say that if there is such an appeal to the details
 15   of a licence, that there can be -- that project
 16   can be stopped while that appeal process has been
 17   undertaken.
 18               If I could just refer to the principle
 19   my learned friend has advanced as to a fair
 20   hearing, in his submission, that the common law,
 21   the rules of natural justice apply.  And that in
 22   order to have a fair hearing, that they have to be
 23   given full details of every aspect of the
 24   construction.
 25               Well firstly, we submit that we have
00083
  1   met their guidelines for the preparation of the
  2   EIS which have been met.  There has been a
  3   thorough process of public consultation throughout
  4   the process.  But it's to be kept in mind and the
  5   rules of natural justice that have been referred
  6   to have to be looked at in the light of the nature
  7   of the Tribunal that is hearing the matter.
  8               Of course if there are well-defined
  9   issues and there are parties to a dispute such as
 10   there might be in a Court of Queen's Bench action
 11   or in the labour board or the municipal board
 12   where there are -- rights of parties will be
 13   affected by a decision, that there is a very high
 14   regard given to the fact that there is a need for
 15   full disclosure of the positions of the parties in
 16   advance of the hearing itself.
 17               And I'm not to say, I submit, that
 18   that's been fulfilled in these hearings.  However,
 19   this is not a situation where this Tribunal makes
 20   final decisions as to the legal rights of the
 21   parties.  It solely makes recommendations.  So in
 22   that regard, one has to perhaps attempt or
 23   understand the rules of natural justice how they
 24   apply.
 25               My learned friend refers to a Latin
00084
  1   phrase Audi alteram partem which literal meaning
  2   is "hear the other side."  The legal principle is
  3   that no one should be condemned unheard.  That's
  4   one of the principles of natural justice.
  5   Certainly there has been full consultation that
  6   this hearing will hear the other side, will hear
  7   the municipalities.
  8               We point out in paragraph 19 of our
  9   brief, S. Blake in her text on Administrative Law.
 10               "Where the authority granted is merely
 11               to investigate and report but not
 12               decide, there may be a limited duty to
 13               act fairly.  The extent of the duty
 14               turns on the role of the investigation
 15               in the decision-making process and on
 16               the degree of exposure to harm of the
 17               person investigated."
 18               We submit that there has been full
 19   disclosure here to the extent reasonably possible.
 20   And in paragraph 23 of the same text on Blake,
 21               "The common-law right to procedural
 22               fairness cannot override procedure
 23               prescribed by statute.  In the case of
 24               conflict, the statute prevails."
 25               And in this case, we see that the
00085
  1   statutory scheme is this Commission conducts a
  2   hearing on the direction of the Minister.  The
  3   Minister directed a hearing.  And if you read the
  4   terms of reference, subject to the cooperative
  5   environmental assessment process.  And through
  6   that process, through the federal and provincial,
  7   the body PAT was to make the decision when the
  8   material was sufficient according to the
  9   guidelines developed to have the hearing.
 10               Our fifth point is at the bottom of
 11   page 14, and I am not going to go into this in
 12   detail.  We submit that whereas the municipalities
 13   will have further opportunities to express their
 14   concerns -- and I disagree with the statement made
 15   by Mr. Currie that they will not have
 16   opportunities to express their concerns in the
 17   future, and I have pointed that out in our
 18   detailed submission.  But even in these hearings
 19   themselves, that this Commission should proceed
 20   with these hearings, it has certainly the power
 21   and authority to adjourn the hearings at some
 22   point in the future if it is desirable and in the
 23   public interest.
 24               And maybe I should speak to the public
 25   interest.  There are no specific parties to this
00086
  1   hearing.  What this Commission is looking at is
  2   what's in the public interest here, and it's only
  3   going through this hearing process that that
  4   determination could be made.
  5               So if at some point this Commission
  6   feels that further information is needed in order
  7   for you to make your recommendation, you certainly
  8   have that power and authority.
  9               And secondly, my learned friend uses
 10   the phrase functus, you can't do it anymore.
 11   Well, certainly at a later point if a licence is
 12   issued and there's an appeal, part of that appeal
 13   process could involve referral back to this
 14   Commission.  So I am only saying that not as that
 15   that's a likely possibility or likelihood, but
 16   only that those options are available.  So if we
 17   look at it, the municipalities will have further
 18   opportunities to express their concerns.
 19               A delay in these proceedings could
 20   risk serious and irreparable harm to the public
 21   regardless of the content of the hearings and the
 22   Commission's report.  And we point out the
 23   statistics as to the potential damage to the City
 24   of Winnipeg and Province of Manitoba that could
 25   result in a substantial flood, and the likelihood
00087
  1   of that occurring.  It's not a question of whether
  2   it will occur, it's a question of when another
  3   flood in the Red River Valley will occur, and
  4   Manitoba needs to be protected to the extent
  5   possible.
  6               And our last point, page 15 at the
  7   bottom of the page, delaying these proceedings
  8   would add greatly to the cost of the public
  9   hearings, cause substantial inconvenience to the
 10   Commission, the proponent, and many of the
 11   participants.
 12               And my learned friend said, well, that
 13   shouldn't be the determining factor.  Perhaps it's
 14   not the determining factor, but it's a factor
 15   nonetheless to take into account.
 16               And we have added a quote from Brown
 17   and Evans, administrative law, that says when you
 18   have a multi-party hearing, and this is even
 19   dealing with a situation where rights are being
 20   finally decided, that an adjournment may be
 21   refused -- or that adjournment will not likely be
 22   granted at the request of one participant in a
 23   multiple-party proceeding when all others are
 24   present with their lawyers and witnesses and are
 25   ready to start.
00088
  1               At the break, I was given some notes
  2   and some points to address in Mr. Currie's
  3   submission and his reference to a race.  The last
  4   flood and the flood that brought the vulnerability
  5   of our present floodway to attention was in 1997.
  6   It's already been seven years.  The RMs have had
  7   and will continue to have opportunity for public
  8   input.
  9               As to dealing -- and certainly
 10   considerations were given in the EIS and the
 11   studies as to the long-term effect of the
 12   expansion to this floodway.  This is a unique
 13   project, the expansion of a floodway, because we
 14   already have had an existing floodway in place for
 15   35 years.  And on the basis of that, the studies
 16   were facilitated because of the length of the data
 17   collection period.
 18               In reference to a comment by
 19   Mr. Clifton that was read, and criticizing the
 20   model and a suggestion to use a model that would
 21   work.  And quite frankly, it is a state-of-the-art
 22   model as I am told, and as you will hear during
 23   these proceedings.  So to attempt to deal with
 24   that type of a comment right now, we're simply not
 25   able to deal with it, but I submit it was an
00089
  1   appropriate comment.
  2               As to deepening our brief of the
  3   floodway channel, which was the greatest concern
  4   in respect to ground water, we have pointed out --
  5   or the final design of the floodway at the present
  6   time, and you'll hear this during the submission,
  7   is that in order to get greater capacity for the
  8   floodway expansion, there will be no deepening.
  9   There are certain works that have to be done on
 10   the low flow channel, and that will involve
 11   placing fill material where there are depressions,
 12   and armouring the low flow channel which will add
 13   greater protection to the ground water concerns
 14   put forward by the municipalities.  So that the
 15   armouring will be comprised of putting clay fill
 16   in the areas of depressions and putting riprap for
 17   the entire length of the low flow channel.
 18               My learned friend said this Commission
 19   can assess the proponent's compliance with the
 20   guidelines -- can assess the proponent's
 21   compliance with the guidelines in its EIS.  And
 22   that's really your role in these hearings.  But
 23   you can't do it now.  These hearings have to
 24   proceed.  And I won't get into the details of some
 25   of the groundwater issues with my learned friend
00090
  1   because it's impossible to deal with it.  I think
  2   it's better to have experts that are ready to
  3   proceed speak to those matters rather than have
  4   lawyers comment on matters outside their field of
  5   expertise.
  6               If I could just have a couple of
  7   minutes to confer with my colleagues to see if
  8   there are any additional points, or if you have
  9   any questions that you would like to pose at this
 10   point in time.
 11               THE CHAIRMAN:  We'll give you a couple
 12   of moments now to consult with your colleagues.
 13   We'll consult among us to see if we have any
 14   questions or clarification.  Thank you.
 15               We'll break for a moment or two.
 16   
 17               (BRIEF RECESS)
 18   
 19               THE CHAIRMAN:  Order, Mr. Handlon.
 20               MR. HANDLON:  Thank you.  Just a few
 21   follow-up points.  As we've set out in the EIS and
 22   which you will hear during these hearings from the
 23   consultants, that after thorough study, the
 24   independent experts are confident that there be no
 25   likely adverse effects.  Points like the
00091
  1   mitigation fund are an extra measure of safety
  2   against unexpected events.
  3               I will just point out at page 11 of
  4   our brief, we outlined those additional safety
  5   margins, extra margins of environmental safety.
  6   And the three bullet points, during construction
  7   stage, there will be an environmental protection
  8   plan, which we've discussed, in place which will
  9   provide for monitoring and avoidance of mitigation
 10   measures in respect of groundwater effects.  In
 11   addition, there will be an $11 million
 12   environmental mitigation fund that has been
 13   established to address any unlikely or
 14   unanticipated effects during construction of the
 15   project, including such effects on groundwater.
 16               After construction is completed, there
 17   will be continuing monitoring and follow-up
 18   program, including funding for mitigation related
 19   to the effects of the project, if and as required.
 20               It was pointed out that I skipped over
 21   one section on page 12 that is important.  And
 22   page 12 dealt with the other opportunities of the
 23   municipality to be involved in future public
 24   consultation specifically relating to the
 25   construction.  And the second last bullet point on
00092
  1   page 12, dealing with the licensing requirement
  2   for Manitoba Water Stewardship, I skipped over the
  3   sentence that stated,
  4               "The committees will be formed
  5               including representation from Manitoba
  6               Water Stewardship, MFA or its agents,
  7               local government and private citizens,
  8               to keep all parties informed and
  9               ensure concerns are addressed."
 10               And the final point, when one deals
 11   with the need, not a race, to move on
 12   expeditiously, is the fact that there is -- every
 13   year there are statistics dealing with another
 14   major flood.  And page 15, we set out those
 15   statistics from a report that was done a number of
 16   years ago from KGS in 1999, which led to a series
 17   of assessments in design of the expansion project,
 18   and the last bullet point on page 15, and I will
 19   read it,
 20               "The average annual damage to Winnipeg
 21               that could be incurred due to the
 22               probability of floods that could
 23               exceed the existing floodway capacity
 24               is expected to be in the range of
 25               $50 million to $75 million per year,
00093
  1               excluding potential business losses."
  2   So delay has a real effect and it is important for
  3   this Commission to do a thorough job, that these
  4   proceedings need to proceed, and you should not
  5   take the extraordinary step of adjourning these
  6   proceedings at this point in time.
  7               The details Mr. Currie has pointed out
  8   in paragraph 20 of his brief as to the additional
  9   information that they request; number one, it's
 10   impossible for this Commission on a preliminary
 11   motion to know if there are any deficiencies in
 12   the material.  That's the purpose of this hearing.
 13   Who is to monitor when the deficiencies are
 14   correctly rectified, when, and at what time?
 15               The municipalities and the concerns
 16   will be foremost, as all other concerns throughout
 17   the course of this hearing.  And I guess our final
 18   submission, final point is these proceedings need
 19   to proceed on and we look forward to that.  Thank
 20   you.
 21               THE CHAIRMAN:  Thank you, Mr. Handlon.
 22   I believe Mr. Webster has a question or two.
 23               MR. WEBSTER:  Thank you, Mr. Chairman.
 24               Mr. Handlon, you've given us a very
 25   clear representation as to the care with which the
00094
  1   authorities that led to the execution of the EIS
  2   and the dealings with that, that that's all been
  3   done very, very well.  However, if you come to
  4   page 17 of your brief, point 5 finishes up with a
  5   statement that I think puts its finger on one of
  6   the things that the municipalities are concerned
  7   about, and that is that it says that there are no
  8   likely significant adverse effects on groundwater
  9   or to groundwater as the result of the expansion.
 10               Now, I wanted to ask you, does the
 11   extensive information that you were talking about
 12   earlier, does it address the impact of the project
 13   on groundwater resources including the effect to
 14   the original floodway?
 15               MR. HANDLON:  The EIS, and I can't
 16   speak to all the details of it, Mr. Morgan can,
 17   but it certainly assesses the baseline situation
 18   of the existing floodway, and the concerns raised,
 19   and that part is fully analyzed in the course of
 20   the EIS that you will hear.  And I'm sure you will
 21   hear their initial submission on that, you'll hear
 22   cross-examination on it.
 23               The question here, we have the
 24   existing floodway, as we have all other
 25   developments, and it's important to look at the
00095
  1   environmental impact of this project.  And this
  2   environmental impact of this project, by widening
  3   rather than deepening will not, in the opinion of
  4   the experts, adversely cause any adverse effect to
  5   ground water that can't be mitigated.  But that's
  6   something that certainly would be subject to
  7   considerable discussion at these hearings.  But
  8   the short-term and the long-term effects have been
  9   studied, and it's the situation where the
 10   conclusion the experts have come to, both from an
 11   engineering perspective -- and you see the binders
 12   of material -- that have studied the issues of
 13   ground water, and the issue of widening rather
 14   than deepening is a very substantial one.  And on
 15   the basis of that design, and that design has
 16   certain difficulties associated with it, but
 17   that's the commitment to do that, their opinion is
 18   that there will be no adverse effect to the
 19   aquifers in question.  You see that the
 20   government, by the recent letter from the Minister
 21   of Water Stewardship, has committed to a regional
 22   groundwater study.
 23               I mean, it's important to look at the
 24   potential adverse effects to the groundwater, the
 25   aquifers by this project, but it's important to
00096
  1   look at the groundwater quality in its totality,
  2   and that can only be done by a regional study and
  3   that has been committed to.
  4               But as I stated, although, despite the
  5   opinions given and the thorough assessment given,
  6   that there are additional safety measures built in
  7   there for unexpected or unanticipated adverse
  8   effects.
  9               MR. WEBSTER:  Okay.  Finally then you
 10   talked about an EPP being put together addressing
 11   the issues that come up during the course of the
 12   project.  Would those address the effects not only
 13   of the project, but of the original floodway, the
 14   cumulative effects that would come up during the
 15   course of the construction?
 16               MR. HANDLON:  As I understand the
 17   environmental impact, or environmental protection
 18   plans deal with situations that may occur in the
 19   field, deal with monitoring issues as a broad
 20   range, I'm not qualified to get into all the
 21   details of those.  But the practical plans to
 22   ensure that the, in the course of not only the
 23   construction but the continued operation, that
 24   there are measures taken to mitigate against
 25   adverse effects.
00097
  1               MR. WEBSTER:  I guess my point is, can
  2   you separate one from the other at that point?
  3               MR. HANDLON:  At that point?
  4               MR. WEBSTER:  Yes?
  5               MR. HANDLON:  In some respects,
  6   perhaps not --
  7               MR. WEBSTER:  Okay.
  8               MR. HANDLON:  -- as to construction.
  9   But as I said from the outset, I think the
 10   engineers are best to answer that.  That's getting
 11   a little beyond my sphere of expertise.  And
 12   perhaps Mr. Morgan can answer that.
 13               MR. MORGAN:  David Morgan speaking.  I
 14   just want to make clear that in the EIS, supported
 15   by the engineering documents, and probably
 16   repeated again in the IR's, section 5.4.5
 17   monitoring follow-up, where we talk about is there
 18   a recommendation to monitor, to see if these
 19   unlikely effects which the people are concerned
 20   about should be done.  We state,
 21               "Monitoring of groundwater quality on
 22               the western side of the floodway
 23               should be done following a large flood
 24               to verify the movement and effect of
 25               surface water intrusion."
00098
  1   So implicitly, if it's done starting now and after
  2   the construction, it will be assessing not only
  3   the project but the cumulative effects of the
  4   project.  So it's stated in the EIS.
  5               MR. WEBSTER:  I realize we'll be
  6   hearing all of these details in the course of the
  7   hearing, but the point I guess I'm raising is to
  8   what extent can you separate one from the other at
  9   that point, in terms of the EPP during the
 10   project?
 11               MR. MORGAN:  Well, we expect to do
 12   some baseline monitoring.  I mean, the monitoring
 13   has started, for the last 35 years there's been
 14   monitoring, but there will be continued monitoring
 15   before and after.
 16               Also the existing conditions of the
 17   surface water intrusion is also discussed in
 18   section 5.4.  When we get into the hearings we can
 19   discuss all these issues.  I didn't want to get
 20   into a technical thing here before -- we're not
 21   even under oath.
 22               MR. WEBSTER:  I'm not asking you for
 23   one.
 24               THE CHAIRMAN:  I think Mr. Webster's
 25   point was, is there sufficient information in the
00099
  1   EIS to address the issues that he was talking
  2   about?  That's what we're concerned with today.
  3               MR. MORGAN:  Yes.  We feel there was
  4   sufficient information to provide the assessment.
  5               THE CHAIRMAN:  Thank you.  Thank you
  6   Mr. Handlon, and I thank your team.  I don't think
  7   we have any further questions at this point.  It
  8   is now ten to 12:00.  We now have three
  9   participants in the room who have requested to
 10   speak to this motion.  We also, as I noted
 11   earlier, have had one written submission.  I would
 12   propose, since we're coming up to lunch time, that
 13   we will read the written submission into the
 14   record now.  We will come back at one o'clock, and
 15   I point -- I like to emphasize one o'clock sharp,
 16   we will hear the three participants' submissions
 17   at that time, and following that we'll have any
 18   closing comments from the two principals to this
 19   motion.
 20               Ms. Johnson, could you please read the
 21   submission from the 768 Association?  Just by way
 22   of background, let me note that 768 Association,
 23   which is one of the registered and funded
 24   participants, asked last week whether or not they
 25   could submit a written presentation as none them
00100
  1   were able to attend today.  I allowed it, and they
  2   sent it in to us on Friday I believe.
  3               MS. JOHNSON:  Thank you, Mr. Chairman.
  4   Before I proceed to reading that submission into
  5   the record, could I add exhibit number 3 as the
  6   motions brief of the proponent before the Manitoba
  7   Clean Environment Commission, February 14, 2005,
  8   9:00 a.m.
  9   
 10               (EXHIBIT 3: Motions Brief of the
 11               Proponent before the Manitoba Clean
 12               Environment Commission, February 14,
 13               2005, 9:00 a.m.)
 14   
 15               MS. JOHNSON:  Okay.
 16               "The 768 Association Inc. is in
 17               support of the motion as presented.
 18               Similar to the concern of the
 19               municipalities presenting the motion,
 20               the 768 Association has had difficulty
 21               in receiving full responses to the
 22               information request sent to the
 23               proponent.  On January 14, 2005, our
 24               consultant, Green Mountain Hydrotech
 25               Limited, submitted an appeal to the
00101
  1               CEC regarding insufficient responses
  2               to information requests.  This was
  3               followed up by an e-mail from
  4               Hydrotech to the CEC on January 21,
  5               2005, noting that a ruling and a
  6               response to the appeal had not been
  7               received yet.  Although we did finally
  8               receive a response from the proponent
  9               on February 10, 2005, we have yet to
 10               determine the sufficiency of this
 11               response.  We advise the Commission
 12               that even if the response was
 13               sufficient, we have now been put in a
 14               position such that we cannot finalize
 15               our report and presentation for the
 16               hearing as scheduled.
 17               Similar to the concerns of the
 18               municipalities, the 768 Association is
 19               of the opinion that the project
 20               description in the EIS is grossly
 21               inadequate in key areas such as
 22               compensation to individuals,
 23               cumulative impacts from the floodway
 24               construction and operating parameters.
 25               The 768 Association has presented this
00102
  1               concern every step of the way.  These
  2               views have been expressed in a letter
  3               to Manitoba Conservation on
  4               October 14, 2004 to Intergroup
  5               Consultants on February 16, 2004
  6               during round one of the stakeholder
  7               workshops, to the proponent at a
  8               meeting on April 20, 2004, to the CEC
  9               at a meeting on June 1, 2004, and
 10               again to Intergroup Consultants on
 11               June 3, 2004 during round three of the
 12               stakeholder workshops, and finally in
 13               a letter to the Chair of the Project
 14               Administration Team, also the director
 15               of the Environmental Approvals on
 16               November 11, 2004.  The issue has also
 17               repeatedly been submitted by other
 18               stakeholders and participants such as
 19               RCCC, NRAC, Health Canada and others.
 20               Without full disclosure, review and
 21               discussion of these key components, it
 22               is our opinion that the CEC hearings
 23               will hold little value.
 24               Similar to the concerns of the
 25               municipalities, the 768 Association is
00103
  1               concerned that the proponent has not
  2               completed the project design and
  3               description and is contemplating
  4               changes or additions which would then
  5               be implemented after the hearings and
  6               without public scrutiny.  In addition
  7               to the items listed by the
  8               municipalities, we note that the
  9               proponent has advised that they are
 10               still contemplating the need for a
 11               backup gate system.  Our approved
 12               funding allowed us to investigate the
 13               issue but we were unable to do so
 14               because the details of the proposed
 15               system were not available.
 16               We respectfully request as per the
 17               motion that the CEC hearings be
 18               suspended until such time that the
 19               proponent has addressed the noted
 20               concerns.  On behalf of the 768
 21               Association, Robert F. Duerksen."
 22   Please, Mr. Chairman, I would enter that as
 23   Exhibit 4 into our records.
 24   
 25               (EXHIBIT 4:  Prepared statement from
00104
  1               the 768 Association Inc., participant
  2               in the Manitoba Clean Environment
  3               Commission hearings for the Red River
  4               Floodway Expansion Project)
  5   
  6               THE CHAIRMAN:  Thank you.  We will now
  7   take a lunch break and please come back at 1:00
  8   sharp.
  9   
 10               (Proceedings recessed at 11:55 a.m.
 11               and reconvened at 1:00 p.m.)
 12               THE CHAIRMAN:  Order, please.  I would
 13   like to resume the hearings now, please.  We have
 14   had requests from three participants to speak on
 15   this motion.  I will call them in the order that
 16   they made the requests of us.  The first will be
 17   Mr. Paul Clifton, second will be Mr. Jack Jonasson
 18   and finally Mr. Karl Pohl.
 19               Mr. Clifton, would you please come
 20   forward?  I would remind the participants that are
 21   speaking to this motion, they should be speaking
 22   only to this motion and not debating issues of
 23   substance, which will be the business of the main
 24   hearings.
 25               I should also note that their
00105
  1   presentations are to be no more than 20 minutes.
  2   Mr. Clifton.
  3               MS. CLIFTON:  Thank you, Mr. Chair,
  4   Commissioners, public.  Before I start, I'm going
  5   to tell you that I tend to speak better than I
  6   read and speak.  And I have a lot of stuff in my
  7   head, and I articulate very well, and I will do
  8   that to start with.
  9               Actually, Commissioner Webster asked
 10   the question of one of the presenters about
 11   baseline condition, and I would like to speak to
 12   that, and I have also added some notes here, so it
 13   won't fully flow in what I have got here and I
 14   will assure you that I will be less than ten
 15   minutes.
 16               Commissioner Webster asked about
 17   baseline conditions and whether or not the
 18   gentlemen with the Floodway Expansion Authority
 19   has ever really took to heart what people have
 20   said.  And I must say to you that every time I
 21   have spoken, and I will list them shortly, any
 22   time that it has been other than a Manitoba lead
 23   group, anybody from out of province or without an
 24   interest as directed by the Province of Manitoba,
 25   has clearly heard what has been articulated.  They
00106
  1   have clearly and systematically recommended stuff
  2   that isn't being done by these gentlemen, and
  3   clearly there are going to be some problems.
  4               It started as early as Mr. David
  5   Farlinger's Commission in December of 1997, I
  6   talked of my issues.  I talked of my issues to the
  7   task force of the International Joint Commission
  8   which Mr. McNeil was on representing the City of
  9   Winnipeg at the time, Mr. Larry Whitney was there
 10   as well.  I subsequently spoke to the
 11   International Joint Commission, and that's the
 12   body that weren't encumbered by what the Province
 13   and City of Winnipeg were saying, but actually
 14   listening clearly of what was articulated by the
 15   public.  They didn't have an interest in
 16   satisfying Manitoba, they had an interest in the
 17   greater good.
 18               Subsequently, I presented on
 19   January 10, 2002 to the Clean Environment
 20   Commission on flood protection options for the
 21   City of Winnipeg, asking the public what you
 22   wanted to see as it relates to the issue of flood
 23   protection for the City of Winnipeg.  And it was
 24   clearly articulated by the public what they wanted
 25   to see.  These folks have not really undertaken
00107
  1   that.
  2               Subsequent to that we had a wastewater
  3   breach in the north end sewage plant and the Clean
  4   Environment Commission was tasked to ask about
  5   what went on.  And I should actually back up.
  6               When I talked about the flood
  7   protection for the City of Winnipeg, I made a
  8   representation on the 10th of January, 2002.  I
  9   made representation on the 28th of January, 2002,
 10   and in that second representation I called for a
 11   judicial inquiry into level control of the Red
 12   River in the Province of Manitoba.  And
 13   subsequently I, in confidence, provided the CEC
 14   chair, Mr. Terry Duguid, a submission relating to
 15   inappropriate conduct by persons unnamed.
 16               Subsequent to that there was the
 17   breach in the North End sewage treatment plant and
 18   the City of Winnipeg was tasked by the CEC to
 19   explain.  They put up representation and asked --
 20   I have five different points in terms of
 21   reference, do you have any comment?  I did have
 22   comment, and I did need money for funding.  And
 23   the former director of Environmental Approvals
 24   said, Mr. Clifton, your issues are flood issues,
 25   they are not wastewater issues.  And I was able to
00108
  1   petition to an independent funding body, and I
  2   explained to the funding body that your point here
  3   is to listen to the public.  I am public, I have a
  4   concern.  They graciously provided me $4,000 of
  5   the City of Winnipeg money and I compiled my
  6   records, and spoke at that Commission.
  7               I subsequently spoke at the reconvened
  8   meetings of the CEC on the wastewater systems, and
  9   I detailed very clearly in articulating the
 10   problems as it relates to Red River level control,
 11   for the City of Winnipeg wastewater threat
 12   reduction, and I subsequently provided background
 13   records to the Bill 23 hearings at the Manitoba
 14   Legislature on the critical bill, Bill 23, the Red
 15   River Floodway Act.  And within is the most
 16   draconian legislation that I have ever seen.  It
 17   takes away our rights and assumes the right to
 18   flood well in excess of what the floodway was ever
 19   designed for.
 20               Subsequently I attended Regina,
 21   Saskatchewan, and I dropped off records from
 22   Hansard to the director general for PFRA in
 23   Regina, and subsequently I provided my submission
 24   in writing to the Minister of the Environment for
 25   the Government of Canada, Mr. David Anderson in
00109
  1   October of 2003.
  2               We have been down a long, long road
  3   here and these folks aren't listening, but clearly
  4   other folks are.
  5               I will go into my written
  6   representation.  If you don't know, my name is
  7   Paul Clifton, I live in the RM of Richot and we
  8   are just upstream of the floodway inlet.
  9               Assurances were given to me as
 10   recently as a letter -- I have provided to the
 11   Commissioners six copies -- dated February 2nd,
 12   2005, that I have personally received from
 13   Manitoba's current senior federal cabinet minister
 14   and treasury board president, the Honourable Reg
 15   Alcock, as well found within the recent Winnipeg
 16   Free Press editorial writings wherein Mr. Alcock
 17   notes the joint or harmonized assessment under the
 18   Canada/Manitoba harmonized assessment agreement
 19   would not only avoid duplication and reduce costs,
 20   but would avoid project delay.  Mr. Alcock also
 21   noted that the environmental assessment would be a
 22   thorough and complete assessment of this very
 23   important project.
 24               Mr. Commissioners, my representations
 25   and other activities have been and will be into
00110
  1   the future before the CEC, and subsequently to the
  2   federal lead panel review of this project, have
  3   never ever, ever, sought to delay the project.
  4   Though I have always, through fully reasoned and
  5   acquired insights, sought a better way than the
  6   current Manitoba steam roller approach to this
  7   very contentious project.
  8               Other options are available,
  9   Mr. Chair.
 10               I have spoken to the former chair of
 11   the Clean Environment Commission, Mr. Terry
 12   Duguid, on the need for public inquiry on Red
 13   River level control.  Firstly, during January 28
 14   meeting number 5, where we find in the EIS there
 15   was only four meetings on flood protection options
 16   for the City of Winnipeg.  Secondly, detail and
 17   need for federal, provincial and judicial inquiry
 18   during the June 7, 2004 representation to the
 19   Manitoba Legislature, it is found in Hansard
 20   records.  During Public consultations hearings on
 21   Bill 23 the Red River Floodway Act, the bill, the
 22   left Achilles heel of this project.  I will detail
 23   the other, the right Achilles heel of the project,
 24   Red River Floodway expansion, when and if we get
 25   to public hearings.
00111
  1               Whether these hearings are initially
  2   lead by Manitoba, and inevitably and as necessary,
  3   turned over under panel or mediated review, under
  4   the Canadian Environmental Assessment Act, an
  5   additional review will be necessary, Mr. Chair and
  6   commissioners.  This may not be the forum for a
  7   public inquiry, but there should assuredly be a
  8   public inquiry of Red River level control in
  9   advance of every public hearing, or it might
 10   inevitably happen after the motion.
 11               I will speak to the motion.  This
 12   motion hearing was initiated by the RM of
 13   Springfield, the RM of St. Clements and the RM of
 14   East St. Paul, which I refer to as the northern
 15   rural municipalities, or more simply the northern
 16   municipalities.  The northern rural municipalities
 17   brought forward a motion, firstly a nine page
 18   document, which I have reviewed and made
 19   representations to CEC to speak on.  I will be
 20   speaking in support of it.
 21               Subsequently, the northern
 22   municipalities provided a motion brief to the
 23   participants.  I have looked at it.  I will not
 24   make any comments or observations on it.  I will
 25   be speaking to the northern's municipalities'
00112
  1   motion, page 3, number 3.  It reads in full as
  2   follows:  That to facilitate the involvement of
  3   the participants -- as I said, I don't read that
  4   well, especially under pressure.  That to
  5   facilitate the involvement of participant
  6   municipalities and other participants the
  7   proponent provide a comprehensive index
  8   referencing the EIS and all supplementary filings
  9   such that issues can be easily cross-referenced
 10   and accessed by all participants.  As a citizen of
 11   Manitoba I make personal representations on, that
 12   as a citizen of Manitoba I make personal
 13   representations on and comments on the very, very
 14   high standard as set by Manitoba Hydro before this
 15   CEC in the recently completed Wuskwatim Generating
 16   and Transmission Facilities Project and
 17   environmental assessments.  These references are
 18   made only, because not only are the principals of
 19   this open and candid study that was undertaken and
 20   disclosed of the positive benefits of the project
 21   made by the proponent, but the negatives must be
 22   disclosed as well, with complete intended
 23   mitigative measures detailed to correct the known,
 24   obvious negatives of any project.  These measures
 25   are to be detailed and assuredly implemented in
00113
  1   advance of -- and I say again in advance of, and I
  2   will detail that a little later -- of any and most
  3   importantly this expansion project.
  4               In this effort, not only are the
  5   participants to be informed by the proponent, but
  6   the public as a whole are to be informed by the
  7   environmental assessment process -- as a whole,
  8   Mr. Chair.  Because this statement is so, so
  9   important, I repeat, not only are the participants
 10   to be informed by the EIS process, the public are
 11   to be fully informed by the process as well.  In
 12   the case of Wuskwatim, the principal group of the
 13   EIS is the same group, TetrES, Intergroup are
 14   working as subconsultant to them, now contracted
 15   by Manitoba Floodway Authority to undertake the
 16   EIS on floodway expansion.
 17               Unfortunately, Mr. Chair, this is
 18   where the parallels of the two projects diverge.
 19   The CEC, in its report on the Wuskwatim Generating
 20   Station, commented on the shortfalls of that
 21   assessment.  The Commission recommended best
 22   practices for future CEC assessments such as
 23   properly setting baseline conditions, et cetera,
 24   et cetera.
 25               Paul Clifton's representations, as
00114
  1   represented by the Manitoba Floodway Expansion
  2   Authority to date, my publicly post
  3   representations as well as others are not being
  4   catalogued, logged, and clearly being represented
  5   by the proponent to be followed by those fully
  6   informed, let alone the public as a whole.
  7   Furthermore, my representations are not only not
  8   being catalogued or logged, but are being
  9   represented publicly in a draft form, complete
 10   with a cover letter by the Manitoba Floodway
 11   Expansion Authority CEO, Mr. Ernie Gilroy.  The
 12   Manitoba Floodway Expansion Authority
 13   representations have significantly changed the
 14   intent of my questions.  My questions will never
 15   be trivial, they will never be easy to answer, but
 16   they will be answered, sir.
 17               They have been inaccurately posted by
 18   Environmental Approvals because they have been
 19   provided by the Floodway Expansion Authority in a
 20   draft form.  This is what Mr. Clifton says.  It is
 21   a mockery of this supposed public assessment
 22   process.
 23               As my first written example, and I
 24   actually wrote in notes here, I will give a
 25   verbal -- and from earlier on I heard something
00115
  1   that I need to speak to as well.  As my first
  2   example, I demonstrate by providing records within
  3   this representation, with a second, and as I said,
  4   a third orally.  The intent, for reasons unknown,
  5   by the Manitoba Floodway Expansion Authority
  6   and/or the CEC, to which I cannot determine, is
  7   simply to avoid public display of my concerns
  8   directly relating to this project.
  9               In the demonstrated questions is my
 10   belief that the intended advancement of public
 11   hearings is premature and certainly ill-advised at
 12   this time.  Subsequent issues that have been
 13   identified some four years -- that's four years
 14   ago -- still have not been fully and candidly
 15   answered and resolved.  Paul Clifton's question
 16   number 8 that was submitted in the interrogatory
 17   process that to date has not been answered, it
 18   reads in full as follows: I attach a copy of a
 19   letter to Manitoba E.M.O. re evacuation order of
 20   the Red River Valley, dated February 19, 2001.  To
 21   date the Government has not replied.  Maybe the
 22   proponent is now a little more motivated to answer
 23   some of the tougher questions relating to floodway
 24   expansion.
 25               My dear wife Maxine got a call from
00116
  1   Mr. Paul Anderson, the letter attached was sent to
  2   Mr. Anderson, copied to then minister responsible
  3   for EMO, Mr. Steve Ashton, who is very
  4   coincidentally now responsible for water
  5   stewardship, the operators of the floodway.
  6               Mr. Anderson thought that maybe he
  7   needed to call a meeting.  He has been working off
  8   and on for four years to try to get an answer to
  9   Paul's questions.  He talked to Maxine and thought
 10   maybe we could read through these questions and
 11   see if we could meet about these questions.
 12   Maxine said, Paul, let's read the questions.  He
 13   read the first question.  What don't you
 14   understand about the first question, Mr. Anderson?
 15   Let's read the second question.  Maxine says the
 16   second question is quite clear too, isn't it, Mr.
 17   Anderson?  Well, the intent is to get you people
 18   out of the valley, we want to save lives.  That's
 19   not what I'm asking about.  These people plan to
 20   flood the valley and we need answers.  They don't
 21   want to kill people, because then they would be
 22   criminally responsible.
 23               The response, the Manitoba Floodway
 24   Expansion Authority staff is not in a position to
 25   respond to the questions provided regarding
00117
  1   authorities during a declared emergency.  The
  2   questions have been referred to Mr. Paul Anderson,
  3   executive coordinator of Manitoba EMO.
  4               As I said before, this question is
  5   four years old and was sent to the acting director
  6   of EMO, Minister Ashton, for a response.  I went
  7   so far as closing, in offering my unique insights
  8   in the obvious problem that I was trying to
  9   address.  Detailed within the letter is the date;
 10   the acting director and the current Minister of
 11   Water Stewardship for that matter have not sought
 12   my or other's help on these obviously critical
 13   questions.  These good news, or as it turns out
 14   bad news, representations must be posted for all
 15   interested public to become informed by this
 16   process.  The lack of will of the proponent -- and
 17   the proponent in this case is Manitoba, there is
 18   no illusions here, these people receive their
 19   cheques either as consultants or directly through
 20   their Manitoba Floodway Expansion Authority and I
 21   can assure you there is a buffalo on the cheque.
 22   They are Manitoba.  The lack and will of the
 23   proponent to post participant representations, and
 24   go so far as to edit representations by posting,
 25   flies in the face of civil justice.  The public
00118
  1   not only have the right to unbiased environmental
  2   assessments, but the right to know when things are
  3   running off the rails.
  4               I have now been forced to embed my
  5   representations for public posting within written
  6   submissions to Manitoba Environmental Approvals.
  7   This such as embedding my Manitoba water branch
  8   long sheltered records, 197, 198, as extracted
  9   with the diligent assistance and work of over six
 10   years of Mr. Barry Tuckett, the retiring ombudsman
 11   of Manitoba.
 12               This is my supplementary submission to
 13   the Manitoba Floodway Expansion Authority and is
 14   not to be seen as full public disclosure.  Under
 15   oral representations, I will talk very briefly
 16   about the West Dyke funding.  In one of my
 17   representations I asked the question of the
 18   Floodway Expansion Authority about federal funds
 19   into West Dyke extension and elevating.  I
 20   received a letter that they had directed to the
 21   Canadian Environmental Assessment Act because they
 22   deemed that they weren't able to answer it, and I
 23   received a reply back from Mr. Jerry Tessier,
 24   saying there was no involvement as told by his two
 25   departments.
00119
  1               The supplementary filing supplied by
  2   these guys after that representation clearly shows
  3   that there was federal funding into the project.
  4   There was not a known screening under the Canadian
  5   Environmental Assessment Act.  They have breached
  6   the federal law.  We have to represent that
  7   publicly.
  8               I will get into later fundamental
  9   justice.
 10               This is a tough project.  This is a
 11   project that residents upstream were sold a bill
 12   of goods; this floodway is good for you, the
 13   Federal government will contribute one-third of
 14   the cost, the Provincial government will
 15   contribute one-third of the cost, and because the
 16   Federal government realized it was an
 17   international waterway, they contributed a second
 18   third.  Manitoba was to cover any cost overruns.
 19   Within it the requirement was that they would
 20   provide a program of operation for the operation
 21   of the floodway.  I don't give a good gall darn
 22   what you build, folks, but I do care how you
 23   operate it.
 24               The first time they operated, 1969,
 25   people upstream had problems.  They consulted with
00120
  1   the Federal Minister of the Environment, the late
  2   James Richardson, and said they are operating the
  3   floodway not the way it was planned.  By that time
  4   it was too late.  Manitoba hadn't complied to the
  5   contract, but Canada paid out.
  6               In closing, the proponent and its
  7   environmental assessment consultants know what
  8   needs to be done.  This has been very well done.
  9   And the recent studies and assessments, I know
 10   Manitoba Hydro has set the bar very high, but we
 11   manage water very well.  We recognize there is an
 12   adverse effect and we work with that.
 13               I fully support the northern
 14   municipalities' motion for delay until such time
 15   as the deficiencies in the current and first go
 16   round continues.  I will take any questions.
 17               THE CHAIRMAN:  Thank you, Mr. Clifton.
 18   Any questions at this point?
 19               No questions, Mr. Clifton.  Thank you
 20   very much.  You will certainly have other
 21   opportunities to make your feelings known when we
 22   get into the regular hearings.
 23               MS. CLIFTON:  Yes, I know it is not a
 24   public hearing, sir.
 25               THE CHAIRMAN:  Mr. Jonasson.
00121
  1               MS. JOHNSON:  Mr. Chairman, if I could
  2   I would like to read this in the record, support
  3   for the motion by Paul Clifton will be exhibit
  4   number 5.
  5   
  6               (EXHIBIT 5:  Support for the motion by
  7               Paul Clifton)
  8   
  9               THE CHAIRMAN:  Mr. Jonasson.
 10               MR. JONASSON:  My name is Jack
 11   Jonasson, I'm with the Coalition for Flood
 12   Protection North of the Floodway.  We represent
 13   approximately 300 residents or citizens from all
 14   walks of life, and we have in support five
 15   municipalities and the City of Selkirk by
 16   resolution.
 17               I'm here to say that we support the
 18   motion.  The people who live in the municipalities
 19   that host the floodway and downstream of the
 20   floodway have, I guess, a profound mistrust of the
 21   process that has taken place so far.  I will try
 22   and explain why this has come about.  The first
 23   set of meetings that was held by the chairman of
 24   the then CEC, we were told that they had meetings,
 25   because we thought this is kind of a public
00122
  1   relationship kind of thing.  I attended all of
  2   these meetings.  They ended with a sterling report
  3   written by the then chairman of the CEC outlining
  4   all of the concerns that everybody had that
  5   attended the meetings.
  6               In the end, the report went to the
  7   province.  The Minister or the Premier then held a
  8   press conference and basically said, that's it,
  9   the majority favour the expansion of the floodway
 10   and that's what we are going to do.  Not one
 11   mention of one of the concerns that were in the
 12   report.  None, zero, were addressed.
 13               The second thing, the second reason I
 14   guess for this profound mistrust is the EIS and
 15   the way which it is put together.  We thought this
 16   would be our last chance to put forward the
 17   concerns of the people of the municipalities that
 18   host the floodway, and for those of us who live
 19   north of the floodway.  Incidentally, I live
 20   inside the floodway, but I have a well.
 21               When we received the copy of the EIS,
 22   I read the executive summary.  In the executive
 23   summary there was one sentence that talked about
 24   the concerns of the people north of the floodway,
 25   and it was that that there was a recommendation
00123
  1   that the Federal and Provincial government should
  2   look at the problem of flooding in rural Manitoba,
  3   particularly north of the floodway.  That's the
  4   only mention that we had of our concern.
  5               Then when we read a little further in
  6   the report and looked at what the baseline was,
  7   and it is the existing floodway.  So all we are
  8   looking at, ladies and gentlemen, all we looking
  9   at is this is the present floodway, now this is
 10   the new one, just that difference.  By having that
 11   kind of baseline, you don't have to look at all of
 12   the other issues.  They didn't even have to look
 13   at the sewage that was being dumped in the
 14   floodway by the City of Winnipeg because it is an
 15   existing situation.
 16               I took a number -- two people who were
 17   putting together the EIS on a field trip in my van
 18   and showed them what our concerns were, a lagoon
 19   at the trailer park in Birds Hill or Pine Ridge
 20   that was dumped directly into the floodway.  Now,
 21   my well is three kilometres downstream.  That was
 22   not mentioned in the EIS.  As a matter of fact, I
 23   can't find anything that deals with groundwater
 24   below the crossing at Pine Ridge.  And I know that
 25   there is a huge connection between the groundwater
00124
  1   and the floodway, and it is boiling up between
  2   highway 44 and the outlet at this moment, even
  3   though it has been 40 below.
  4               Issues and concerns of citizens living
  5   in municipalities that host the floodway must be
  6   addressed.  They can't -- they just can't be set
  7   aside.  History teaches us that if these concerns
  8   are not addressed prior to construction, they will
  9   never be addressed.
 10               When the floodway -- and I have an
 11   advantage here because I was around when that
 12   happened -- when the floodway was built there was
 13   a lot of concerns raised by the municipalities, as
 14   is happening now, same concern probably.  They
 15   were told, among other things -- because the
 16   municipalities had been cut right in half and left
 17   with St. Clements with one crossing, East St. Paul
 18   with one crossing -- they were told not to worry,
 19   when the floodway is finished we will just pave
 20   over the areas on the roads that were cut, and
 21   they would get what is called 99 percent roads.
 22   In other words, you could cross except when the
 23   floodway was in operation.  Not one -- zero of
 24   those roads were ever built.
 25               The Premier has been going around the
00125
  1   province making promises.  He has.  But ladies and
  2   gentlemen, those are just promises.  Unless there
  3   is an order-in-council or some other binding kind
  4   of initiative, we can't accept that.  We can't
  5   accept the promise.  Because our Premier will be
  6   our Premier maybe for another three years, but we
  7   don't know after that.  One Premier is not going
  8   to honour the promises of another.
  9               The host municipalities of the
 10   floodway, when it was built, received absolutely
 11   no consideration for hosting the floodway.  They
 12   lost land, they lost taxes on land, their water
 13   was exposed, and of course huge transportation
 14   problems because they have to move their equipment
 15   around.  I was assistant superintendent of schools
 16   in the River East School Division.  It was a
 17   nightmare in terms of transportation, because you
 18   have to gather kids and, you know, you don't have
 19   those roads going continuously, so there were huge
 20   problems, ladies and gentlemen, and they have to
 21   be addressed.
 22               My concern and our municipalities'
 23   concerns are that once again we will be told,
 24   well, don't worry about it, just let us build it
 25   and we will fix it up after.  Well, it doesn't
00126
  1   happen that way, it just doesn't happen that way.
  2               In closing, I think unless our
  3   concerns are dealt with, not by promises by the
  4   Premier but through orders-in-council or some
  5   other such formalized kind of situation following
  6   a process of negotiation and/or mediation with the
  7   municipalities, that's what has to happen.
  8               The EIS, as I see it, is fundamentally
  9   flawed because of the baseline.  This allows them
 10   not to address the issues that our municipalities
 11   have.  It is a logical thing, but this is the
 12   reason why the mistrust is there.  It seems this
 13   whole thing is designed to facilitate giving a
 14   license to the construction of the floodway.
 15               You can not ignore -- one of the
 16   public meetings that was held, I asked this
 17   question, and one of the people who work for the
 18   Floodway Expansion committee said, we are not here
 19   to correct the problems of the old floodway,
 20   that's not our job.  Well, it is their job.  This
 21   is the environment.  The sewage being poured into
 22   the floodway, it is my understanding that it is
 23   still coming in -- my understanding is it is still
 24   coming in -- has not been corrected.  I don't know
 25   how this process can be validated because it is
00127
  1   being based on a fundamentally flawed document.
  2   Thank you.
  3               THE CHAIRMAN:  Thank you,
  4   Mr. Jonasson.  Mr. Pohl.
  5               MR. POHL:  Mr. Chairman,
  6   commissioners.
  7               THE CHAIRMAN:  Please introduce
  8   yourself.
  9               MR. POHL:  My name is Karl Pohl,
 10   P-O-H-L, Libau, Manitoba, north of the floodway.
 11   I'm registered to make my presentation in Oakbank,
 12   but being here today, I couldn't help noticing a
 13   couple of items in the motions paper of the
 14   proponent that I would like to strenuously object
 15   to.
 16               I was very disappointed when I read on
 17   page 13 that where the authority is granted to
 18   merely investigate and report, but not decide,
 19   there may be a limited duty to act fairly.  God,
 20   even a hardened criminal is entitled to a fair
 21   hearing.  There should be a compulsion and a
 22   guarantee that people get a fair hearing.  It
 23   obligates our fundamental right to a fair hearing
 24   by an impartial panel.  To even put something like
 25   this in writing, I feel is inappropriate and I
00128
  1   wish to go on record for that.
  2               Secondly, on page 15 of the
  3   proponent's brief there is a real bone of
  4   contention that we have always argued out there in
  5   Selkirk.  There is a real aversion by the
  6   proponents to quantify the size of flood that they
  7   are protecting, trying to protect Winnipeg from.
  8   One in 290 year flood, that is the 1826 size
  9   flood, it is not quantified on here but I will
 10   quantify it for you.  According to Sir Sanford
 11   Fleming, this is the first flood on record in the
 12   Red River Valley that was 226,000 cubic feet per
 13   minute.  If any of you ever stands on the banks of
 14   the Red River at Lower Fort Garry, common sense
 15   will tell you that it is not going through there.
 16   Whatever size floodway is being proposed, that's
 17   the whole Achilles heel of the project that hardly
 18   anybody addressed.  We would like to see this
 19   quantified in a forthright manner, not with graphs
 20   that are not to scale.
 21               I'm not going to any more specifics
 22   here today, but I will address them all in my
 23   Oakbank presentation.  And I still have not
 24   received a detailed and written response to my
 25   concerns from the MFA that I handed to them about
00129
  1   a year ago.
  2               In conclusion, I have asked the Red
  3   River Basin Commission and the International Joint
  4   Commission for mediation in this, because it seems
  5   that since the Clean Environment Commission is not
  6   a decision making body, but merely makes
  7   recommendations, that we are not getting anywhere
  8   here with this process.  So I have asked for a
  9   mediation for this very same reason.
 10               I thank you for your time, and we will
 11   see you in Oakbank on the last day.  Thank you.
 12               THE CHAIRMAN:  Thank you, Mr. Pohl.
 13               MR. POHL:  Do you have any questions
 14   anybody?
 15               THE CHAIRMAN:  Not at this time.
 16   Thank you, Mr. Pohl, and let me ensure that we
 17   will endeavor to ensure that the hearings are as
 18   fair as possible to all parities.
 19               MR. POHL:  Okay.
 20               THE CHAIRMAN:  Thank you.  We have had
 21   one more late request for a presentation by
 22   Mr. Stinson.  He assures us that he would like to
 23   speak for five minutes only.  Mr. Stinson.
 24               MR. STINSON:  I am much more
 25   comfortable standing if you don't mind.  My name
00130
  1   is Jim Stinson, S-T-I-N-S-O-N.  Thank you very
  2   much for taking my presentation at the last
  3   minute.  I wasn't going to speak, but I just
  4   wanted to mention to you, I know it is a very
  5   tough decision that you have to make, what is
  6   placed before you.  Possibly put this over,
  7   speaking on the motion put by our RM of St.
  8   Clements.  I'm speaking for myself.  I live in the
  9   RM of St. Clements.  I can tell you that I have
 10   attended more than 50 percent of the hearings, the
 11   decisions, the various rounds and workshops, and
 12   through those hearings I spoke to a lot of the
 13   environmentalists and was very pleased with their
 14   comments and decisions that they said.
 15               During several of those meetings I
 16   brought up to them concerns -- and this addresses
 17   Mr. Webster's question that you brought forward,
 18   and that's why I decided to speak.  I brought
 19   forward several questions, as did other people at
 20   those hearings, concerning issues of the previous
 21   floodway, the baseline.  And the environmentalists
 22   told us that it was not in their mandate to look
 23   at that.  And they jokingly said to me, do you
 24   know how many environmentalists, or how many
 25   engineering companies we have had to hire now?
00131
  1   And I said I don't know, maybe you will have to
  2   hire another one -- which some of the Floodway
  3   Authority people laughed at.  Well, if they had to
  4   hire one more engineer to do a study on the
  5   baseline, we wouldn't be having these hearings
  6   today, because the same questions and motions
  7   brought forward by the three RMs were mentioned
  8   not once, not twice, not three times, but several
  9   times before.  This was a year ago.  These were
 10   brought forward.
 11               If you look at the guidelines, the way
 12   it is written out, the guidelines for the EIS, it
 13   is for the guidelines for the expansion of the
 14   floodway.  That word "expansion" is always in
 15   there, your mandate you people, it is for the
 16   expansion.  It should be for the entire floodway.
 17   Thank you very much and thank you again for taking
 18   me in so quickly.
 19               THE CHAIRMAN:  Thank you Mr. Stinson.
 20   Mr. Handlon, are you ready to begin your closing
 21   comments or --
 22               MR. HANDLON:  Give me a second,
 23   please.
 24               THE CHAIRMAN:  Certainly we will take
 25   a moment or two.
00132
  1               MR. HANDLON:  Mr. Chair, I will be
  2   brief, because this is a response, you have our
  3   detailed written submission and my detailed
  4   submission this morning.  And appropriately any
  5   response should be on any new matter that was
  6   raised.  There are just a couple of matters.  I'm
  7   not sure, and the record will reflect Mr.
  8   Jonasson's comments, my understanding is that he
  9   is the executive director of the Coalition for
 10   Flood Protection North of the Floodway, and he is
 11   speaking on behalf of that participant group,
 12   that's a funded participant.  I may be wrong, but
 13   I believe he indicated in his submission that he
 14   represents or is supported by five area RMs and
 15   the City of Selkirk, he may have said by
 16   resolution.  If in fact anybody, and Mr. Jonasson
 17   is speaking on behalf of any other person, I think
 18   it would be incumbent upon them, particularly if
 19   there is a representation or a resolution that
 20   should be put forward, there is some
 21   authorization.  So at the present time, unless
 22   there is some authorization, written authorization
 23   put forward, we can accept Mr. Jonasson's comments
 24   on his behalf on behalf of his group.
 25               Perhaps one point that I might stray a
00133
  1   little bit from this morning; I didn't touch on
  2   one matter, and Mr. Currie stressed in his
  3   submission rule 10 of your process guidelines.
  4   And rule 10, as I see it, is a procedural
  5   requirement for parties to produce, to the extent
  6   possible, information and documentation that they
  7   intend to adduce at the hearing to allow, of
  8   course, for a more effective, thorough and
  9   efficient hearing.  The rule is not there to
 10   protect the rights of parties since there is no
 11   adjudication.  Mr. Currie had suggested that the
 12   rule indicates then that there is an incorporation
 13   of the rules of natural justice.  Again, it is a
 14   matter -- it is a procedural rule that's there for
 15   the assistance of the parties, and the Floodway
 16   Authority has put forward all of the documents and
 17   information that it intends to rely on.  So I
 18   don't think that anything further can be made of
 19   that.
 20               The various submissions that were made
 21   this afternoon, again any new -- I don't believe
 22   there are any new matters that were raised.  There
 23   were a number of subjects that were spoken to, and
 24   perhaps what it demonstrates, more than anything,
 25   is that these are the types of issues that should
00134
  1   be dealt with at the public hearing itself and
  2   support our position that this hearing should
  3   proceed.
  4               And my final point is that the process
  5   guidelines, article 11, deal with motions
  6   respecting procedural matters.  And as I see it
  7   now, is this a procedural matter that's being
  8   dealt with, or is this a substantive matter?  I
  9   submit it is attempting to go more into
 10   substantive matter as to the sufficiency of the
 11   EIS, and that's a matter for the hearing itself.
 12               I believe those are all of my
 13   comments.  I know that earlier on there was a
 14   representation that one of the Reeves of the
 15   Municipality would speak.  And I take it that the
 16   rules of procedures are such that if there is a
 17   rebuttal, that it is rebuttal to new points -- it
 18   will be dealing with new points that were raised
 19   by us during submission and that we won't be faced
 20   with any new matters that we would have to
 21   address.  Thank you.
 22               THE CHAIRMAN:  Thank you, Mr. Handlon.
 23   If the Reeve does bring up any new matters that
 24   you feel compelled to address, wave and we may
 25   well accommodate you.  Our rules of procedure are
00135
  1   relaxed.  They are not courtroom.
  2               MR. HANDLON:  And the point Mr. Pohl
  3   made, and it was a good point, as to the excerpt
  4   from the book on Administrative Law that I quoted,
  5   it wasn't taken in the context that this would be
  6   anything but a fair and thorough hearing, and
  7   that's what we absolutely support.  What we are
  8   saying is that to be a fair and open hearing does
  9   not require an adjournment on the basis, on the
 10   grounds that have been submitted.  That's all.
 11   Thank you.
 12               THE CHAIRMAN:  Thank you.  Mr. Currie.
 13   We will take five minutes and come back.
 14   
 15                    (RECESS TAKEN)
 16   
 17               THE CHAIRMAN:  Now I will invite Mr.
 18   Currie to make his closing comments.
 19               MR. CURRIE:  Thank you, Mr. Chairman.
 20   I would like to start by dealing with the dangling
 21   issue of Dr. Webster's request this morning of
 22   were these baseline issues raised earlier in the
 23   proceeding, were they considered.  I cannot
 24   identify in the Commission's records the exact
 25   location of the documentation, and I will have to
00136
  1   be at the mercy of the Commission to identify it
  2   for themselves.  But on November 25, 2004, there
  3   was a letter addressed to you, Mr. Chair, from
  4   Reeve John Holland.  Attached to that letter were
  5   questions from the RM of Springfield, re the
  6   floodway expansion environmental assessment.  And
  7   in particular, Mr. Chairman, the second question
  8   is quite lengthy and goes on for just two and a
  9   quarter pages, and the title of that question is
 10   "cumulative effects," and in there it references
 11   baseline requirements multiple times.  I can read
 12   into the record the exact provisions, but I will
 13   start with, "the methodology employed for the EIS
 14   was to consider the impacts of expansion only."
 15   It stated that existing or past projects were
 16   considered as part of the evolving baseline.  We
 17   are into the baseline issue.  Hence, no
 18   consideration was given to pre-existing effects.
 19   This is an important consideration since it
 20   minimizes the scope of consideration of the
 21   cumulative effects in that the expansion is
 22   considered as an isolated, stand alone project and
 23   not incorporating any of the pre-existing or
 24   ongoing impacts of the original project.  It is
 25   another way of saying what was your baseline and
00137
  1   can we get one.
  2               It goes on to say, this approach
  3   appears to counter the intent of CEAA and EIS
  4   guidelines, which state that the EIS should
  5   examine cumulative effects of the project that are
  6   likely to result from the project when its effects
  7   are considered in combination with the effects of
  8   other projects or activities that have been or
  9   will be carried out.  I took the question, Mr.
 10   Chairman, from Dr. Webster to mean, did we give,
 11   or did the rural municipalities give someone
 12   notice, in particular the MFA, did they give them
 13   notice that these were concerns raised by them.  I
 14   think if you read through that letter you will
 15   see, without me spending a great amount of time on
 16   it this afternoon, you will see that each of those
 17   issues were raised.  They are being questioned.
 18               Again, I can't identify it in your
 19   records.  I was given CDs for almost everything,
 20   but I'm going to ask someone to provide me with a
 21   CD of the interrogatory requests, because my job
 22   is significantly reduced if I can do a search
 23   quickly for these issues.  And this was one that I
 24   thought would have been very handy to do a search,
 25   but I didn't have a CD.  I ended up spending the
00138
  1   time, if you will, looking through the IR
  2   responses to this material and asking myself, well
  3   where does this material appear and what is being
  4   done with it?
  5               And I guess what I did was I found
  6   some of the responses that come back in December,
  7   and ask for some type of response in January.  But
  8   in response to the first part, is that it is not
  9   clearly identifiable in the record where they
 10   answer any particular question.  It is not
 11   necessarily easily followed, I think echoed by
 12   other people who have presented today, that this
 13   is an unusual fact situation that we don't have a
 14   coordinated process.  But nonetheless we are up
 15   and running.  Intelligent people should be able to
 16   go forward and push as hard as they can to get the
 17   answer.
 18               Here is their answer to IR number 3A,
 19   and I'm not sure how they break it out.  I assume
 20   it is the answer to the cumulative effects.  And
 21   there is -- the comment that there is a dirth of
 22   information or important information that's
 23   needed, and in particular we are characterizing
 24   what we need as what we think a baseline might be.
 25   And in their request they say a full
00139
  1   characterization of the existing springs over the
  2   entire length of the channel, including location,
  3   georeference to project mapping control,
  4   stratograpy, aerial extent and history, hydraulic
  5   characteristics, including seismometric head at
  6   the source, formation, permeability and flow.  And
  7   don't ask me, Mr. Chairman, exactly what that
  8   means, I can't tell you.  I can only tell you that
  9   our experts asked that.  And I intended to go from
 10   expert to expert, and not through me.  Water
 11   quality was asked, these questions were asked.
 12               What the answer was that we disagree
 13   with the reference of a dirth of important
 14   information.  However, additional spring
 15   monitoring will be done in final design.  They are
 16   telling us that they are going to do it
 17   afterwards, after these hearings.  This is final
 18   design.
 19               So, in answer, it is exactly what I
 20   gave you this morning.  Yes, the questions were
 21   asked, and yes, I'm not even diverting a little
 22   bit from my argument this morning, it keeps
 23   getting put to construction and final design
 24   phases, and we are saying this is a must today.
 25   Before you get to the hearing, this is where we
00140
  1   want it.  If we get the information last minute in
  2   these hearings, I have to have an expert at my
  3   side, I have to understand what the point is that
  4   they are making and, quite frankly, I'm not
  5   qualified to do that.  That means as a participant
  6   I have to have my expert with me the full hearing.
  7               Let me give you a paradigm shift, Mr.
  8   Chairman.  What do I mean by the paradigm shift?
  9   I mean that these hearings are not about the
 10   participants pulling the information out at the
 11   last minute.  These hearings are really about the
 12   proponent putting forth their project in a full
 13   and complete manner.
 14   
 15               I will invite you to read it yourself,
 16   and draw your own conclusions but that's not
 17   responsive to baseline.  What is responsive?  We
 18   need to determine what the baseline is.  We need
 19   to go to a year when it will work.
 20               I need to address, Mr. Chairman, now
 21   the question of this last minute, 24th hour
 22   adjournment.  I quite frankly disagree with my
 23   learned friend regarding this as being a last
 24   minute adjournment.  It is exactly what the
 25   process dictated.  The responses were coming in as
00141
  1   late as January.  And by January 14th, we had
  2   received correspondence from the Commission's
  3   office that the appeal was not necessary, no need
  4   to go forward with it.  And we also received
  5   comments on the pre-hearing that this is exactly
  6   when we were to bring this motion.  That's it.  In
  7   the mean time, we had already made the requests of
  8   the MFA regarding our information.  And that was
  9   the response that we got.  So, if you want to call
 10   it last minute or 24th hour, you can, but it has
 11   to be characterized in the facts or the
 12   circumstances to which it arises, and not in
 13   isolation.
 14               If we contrast ourselves with what has
 15   occurred; 1997 we knew we had a flood on our
 16   hands.  By 1998, people were already considering
 17   the expansion.  From '98 to 2004 the MFA has had
 18   six years.  If this 24th hour delay, or request
 19   for a delay, in any way compares to the six years
 20   that has already been past, I'm going to submit it
 21   is really not an issue.  Neither as to the 24th
 22   hour request for the delay, nor the delay itself.
 23               The delay that's being requested is
 24   that we be provided with reasonable information,
 25   we get the opportunity to get our questions in.
00142
  1   And if you read my brief, the delay will be
  2   limited by the response of the MFA to the
  3   questions, and our opportunity to have a
  4   reasonable opportunity to have our experts review
  5   it.  That is the delay that we are talking about.
  6   We are not talking about years, we are not talking
  7   six years.  We are talking about time here that is
  8   relatively short.
  9               And what am I talking about?  Well, if
 10   the MFA were to tell me I can in four weeks get
 11   your questions answered, I can do your baseline, I
 12   can tell them in four weeks I can have my
 13   responses back to them.  By that time we are eight
 14   weeks down the road, we are going to have to
 15   reschedule.  You are talking probably 12 weeks
 16   delay.  Somewhere in that period you are going to
 17   bring these hearings back on.  And for three
 18   months are we really holding up the process?  If
 19   it ensures effectively public participation, what
 20   is three months?
 21               I certainly heard comments in the
 22   paper, not being made here necessarily, regarding
 23   delay stopping the project.  I have not heard
 24   that.  And if we have to weigh the balance, let's
 25   assume that we are wrong at the end of the day,
00143
  1   let's assume that in fact we delay this and there
  2   is a cost attached to it, our submission is that
  3   the cost is not as great as presented by the MFA
  4   and their counsel.  But let's assume we are wrong
  5   on that issue.  How do we weigh it in the balance?
  6   We have a balancing issue.  What if we contaminate
  7   the aquifer unintentionally?  No one thinks this
  8   is an intentional act, no one thinks it is a
  9   malicious act, it is not.  But if we contaminate
 10   that aquifer unintentionally, how does it leave
 11   Manitobans, 81,000 Manitobans, by an unintentional
 12   act?
 13               And for a few month's delay, so that
 14   we could have a reasonable opportunity to put
 15   everybody through their paces to make the proposal
 16   that much better.  And that's what the CEC is
 17   really all about, making the proposal better, by
 18   asking the questions, getting the information, and
 19   discussing it in an open forum.
 20               I also disagree, Mr. Chairman, with
 21   the fundamental position taken by counsel for the
 22   MFA that the PAT and the TAC are here to tell you
 23   how to run your hearings, or they will set it up
 24   and tell you it is fine to go to hearings.  I
 25   submit, Mr. Chairman, that you have your own
00144
  1   independent authority.  They have their job to do,
  2   you have your job to do.  And it is two different
  3   jobs, and you don't wait for their okay to run a
  4   hearing or not.  You may run the hearing even if
  5   they felt that that project was not prepared.  It
  6   wouldn't be wise perhaps, but you have the
  7   authority to do so.  So whether PAT or TAC tells
  8   you it is ready to go is not your obligation, it
  9   is your own independent assessment about this
 10   project.
 11               And again, Mr. Chairman, I don't mean
 12   that you should agree with me, but I only need to
 13   ask, do you understand what I have presented so
 14   far?
 15               THE CHAIRMAN:  Yes.
 16               MR. CURRIE:  Have I been coherent?
 17               THE CHAIRMAN:  For a lawyer, very.
 18               MR. CURRIE:  I have been asked, Mr.
 19   Chairman, to really lay the position of the
 20   municipalities out on the table, and say this in a
 21   very honest and forthright manner, that if we
 22   contaminate the aquifer by an error in judgment,
 23   where do the liabilities lie?  Who is going to be
 24   responsible?  And with that we know there are
 25   serious consequences from these types of effects,
00145
  1   and Walkerton is just the tip of the iceberg.  We
  2   don't know where the final liability will lie, and
  3   therefore, it is incumbent upon the Commission, we
  4   submit, to make sure that every stone is turned
  5   over, that every rock is picked up and looked
  6   under, every log is moved.
  7               We want to make sure we have got it
  8   right the first time.  My first principle; use the
  9   cautionary principle and get it right the first
 10   time.  Don't back up and try and fix it after the
 11   problems have come in.  And for a few weeks delay,
 12   for a few months delay, is it all worth it?
 13               Mr. Chairman, I know that Reeve
 14   Holland wants to speak on the question of Dr.
 15   Webster as well, and I know that one of them wish
 16   to present basically final arguments in rebuttal
 17   as well.  So I will turn it over to them and thank
 18   you for your time.
 19               I can go through several of those
 20   instances, Mr. Chairman, in the IR returns, and I
 21   did the paper copy, and I can keep going through,
 22   ground water -- I will just mention a few of them.
 23   Ground water flow measurements at sufficiently
 24   frequent intervals in both time and space along
 25   the channel to enable a rational determination as
00146
  1   to the quantity and chemistry of flow and the
  2   contributing reaches.  I get from that, Mr.
  3   Chairman, we are asking for a baseline before you
  4   construct so we know what we are dealing with
  5   after construction.
  6               And with that, Mr. Chairman, I got an
  7   answer that says, additional field investigations
  8   are proposed during final construction.  Where
  9   does that put us on the hearing?  Final
 10   construction is well past the hearing.  There will
 11   be no addressing that point in a quantitative and
 12   qualitative way today in these hearings.  I don't
 13   know what they are thinking.  And if they tell me
 14   in midstream of this hearing, what am I going to
 15   do with my experts?  I have got to have it
 16   beforehand.
 17   
 18               As Reeve of the Rural Municipality of
 19   Springfield, I had hoped and I continue to hope
 20   that the underlying intent of all of the
 21   regulation and process is to ensure that the
 22   people in my municipality and others are protected
 23   from the effects of the project that's being
 24   proposed.
 25               I would have to say that in respect of
00147
  1   my involvement with that process early on, when I
  2   was required to respond on behalf of my
  3   municipality to the guidelines for the preparation
  4   of the EIS, I prefaced those comments in the first
  5   line by saying never having seen an EIS, I feel
  6   this way about the guidelines.  So it is not as if
  7   we were coming from a great resource of
  8   understanding about that process that Mr. Handlon
  9   spoke about.
 10               Secondly, I would say that I had never
 11   really understood or had any involvement with the
 12   PAT until I in effect crashed a meeting, if you
 13   will.  We weren't invited to the meetings of PAT,
 14   but we became aware of such a meeting, we
 15   attended, we weren't excluded.  For the first time
 16   in the process I heard from the representatives of
 17   TetrES that in fact they were working in a very
 18   restricted baseline in terms of their preparation
 19   of the EIS, that they were not considering any
 20   effects of the existing floodway and were looking
 21   only at the expansion of the floodway.  I
 22   interjected into that meeting by expressing very,
 23   very serious concerns about that, and indicating
 24   that that was certainly not our understanding.
 25   And I continued to press that in meetings with the
00148
  1   Floodway Authority, with the environmental
  2   consultants, in written responses that we made on
  3   a number of occasions.
  4               So I'm still very concerned that my
  5   community is now and will continue to be
  6   threatened by the depletion and or contamination
  7   of the ground water aquifers that underlie our
  8   municipalities as a result of the floodway.  It is
  9   to that end that the municipalities are concerned
 10   to see that the integrity of the Commission
 11   process is upheld.
 12               Early in the proceedings we were lead
 13   to believe that the MFA engineering consultants
 14   were sufficiently funded to provide all of the
 15   information necessary to properly assess the
 16   impact of the project.  And we were told not to
 17   expect funding assistance to enable other
 18   independent investigation.  In actual fact we were
 19   told that the information provided is inadequate
 20   to support the conclusions provided in the EIS and
 21   insufficient to support independent conclusions as
 22   to the likely long term impacts.
 23               When we were forced to consider some
 24   limited investigation of potential groundwater
 25   impacts we were shocked when our experts
00149
  1   discovered raw sewage flowing into the floodway
  2   channel in close proximity to the East St. Paul
  3   community wells near the Oasis Road.  This
  4   condition is not identified in the EIS, and this
  5   has caused us to question the sufficiency and
  6   focus of MFA's engineering studies.
  7               We have seen the impact of well
  8   contamination in Walkerton, Ontario, in a
  9   community of approximately 4500 persons.  There is
 10   no basis to conclude that an eleven million dollar
 11   mitigation fund, while a significant
 12   acknowledgment of the potential for unanticipated
 13   risks, is not nearly sufficient to compensate the
 14   municipalities for the costs incurred to provide
 15   safe drinking water if aquifer usage is left in an
 16   unsustainable balance, or if the aquifer becomes
 17   contaminated.
 18               I would like to refer the Commission
 19   to one of the interrogatory responses included in
 20   the proponent's brief.  I'm not sure how easily
 21   located this is, but it is headed in the upper
 22   right-hand corner, RM3, IR number 6A,
 23   December 2004.  The import of the question posed
 24   to the authority was what the impact would be on
 25   our communities if there wasn't sufficient ground
00150
  1   water, and in specific taking into consideration
  2   anticipated development in our municipalities.
  3   And let me read briefly from the response that was
  4   received to that.  "The CEAA guide states that the
  5   environmental effects of uncertain or hypothetical
  6   projects or activities need not be considered.
  7   Undefined future potential developments in
  8   unidentified rural municipalities and the City of
  9   Winnipeg over the next 50 to 100 years is
 10   considered uncertain or hypothetical.
 11   Accordingly, this analysis was not undertaken
 12   respecting the floodway expansion project."
 13               I would like you to consider that
 14   answer against the comments that Mr. Handlon made
 15   this morning about the intense consultation that
 16   had gone on with the RMs with respect to the
 17   process.  And yet at a fairly late stage in the
 18   process we were apparently unidentified rural
 19   municipalities.
 20               I think that we had concluded, Mr.
 21   Chairman, on the basis of that response that there
 22   was very little point in attempting to go back to
 23   that well, and I would suggest that the written
 24   presentations submitted by 768 Association would
 25   indicate that we would likely not be much further
00151
  1   along today if we had afforded ourselves of that
  2   opportunity.
  3               We submit that this important concern
  4   must be addressed with clarity and completeness
  5   before this project is licensed and not with
  6   reliance upon information to be provided as part
  7   of final design or construction.  Thank you, very
  8   much.
  9               THE CHAIRMAN:  Thank you, Mr. Holland.
 10               MR. GERA:  Mr. Chairman,
 11   Commissioners, I would like to thank you for the
 12   opportunity to speak.  I'm Dave Gera.  I am the
 13   Deputy Reeve from the RM of East St. Paul.  I
 14   could echo all of the same that my previous Reeve
 15   has echoed about the concern that we have with the
 16   aquifer and the water.  But it is -- we have a
 17   real serious consideration in East St. Paul.  We
 18   have to look at providing water for our citizens
 19   there.  It has been a known fact that we are
 20   having concerns there.  We look at the water
 21   that's escaping into the floodway at 1700 gallons,
 22   that you have heard, that would be enough to cover
 23   30,000 homes in a 24 hour period.  Well, we have
 24   3,000 homes.  We could sure use that water.
 25               The MFA gave us -- we have this letter
00152
  1   that they were copied with, from the Minister of
  2   Water Stewardship.  He gave it to us, and said
  3   everything would be looked after.  He says that
  4   right now we are going to be receiving a ground
  5   water exploration permit.  That's going to cost us
  6   dollars and everything else.  But the known fact
  7   by all the experts is that there is water out
  8   there, but we have to go out and explore it to
  9   make sure.  But I make this point to you; what is
 10   the point of spending the RM dollars and
 11   everything else to look for water when there is
 12   water there?  It is in the floodway.  That's where
 13   we come with the point of, why can't the MFA look
 14   at that floodway, do a design, even beforehand,
 15   and then after, during the construction, they can
 16   take the necessary steps to correct this enormous
 17   leakage of potable water going into the floodway.
 18               Sealing the aquifer makes sense.  It
 19   gives us a projected water supply for years to
 20   come for all of the municipalities involved.  It
 21   is very important for us.  As stated by our
 22   experts in the water field, and it has been on
 23   Public Broadcasting Corporation, water is more
 24   precious than gold.  It is, and we need it.  Also
 25   sealing the aquifer will reduce the possibility of
00153
  1   contamination to us.
  2               I also look at when we meet with the
  3   MFA the very first time, they said we are going to
  4   come up with this project, trust us, we will deal
  5   with this as we go along.  That was the words we
  6   got from them.  They come to us and say, the lines
  7   going across the floodway will be looked after,
  8   you will bear no cost, we will have to deepen them
  9   or lengthen them.  Then just as recently as last
 10   week, we received a letter, they didn't write a
 11   letter, they contacted our staff, it is not in
 12   writing yet, but we were given sort of a little
 13   shocking news.  The project to do those lines is
 14   $300,000.  The municipalities are going to be
 15   responsible for 50 percent of those costs.  We
 16   felt that will have to go on to our water
 17   utilities.  It will probably cause us a huge
 18   deficit.  We have to put this on the back of
 19   ratepayers in our municipality.  This is what we
 20   are saying, they are expanding this floodway, and
 21   that's what I don't think -- they have everything
 22   in place to proceed.  And that's what I think
 23   should be looked at very -- how can I say it --
 24   I'm looking for the word -- it should be looked
 25   at.  It is very important before you approve
00154
  1   anything for licences, we should look at all of
  2   the municipalities' concerns, you know, I know you
  3   will know they got the right people on that board.
  4   So that's all I have to say.
  5               THE CHAIRMAN:  Mr. Strang, do you wish
  6   to say a few words?
  7               MR. STRANG:  Mr. Chairman, members of
  8   the Commission, I thank you for the opportunity to
  9   speak to you.
 10               My name is Steve Strang and I am the
 11   Reeve of the RM of St. Clements.  As some of you
 12   know, just recently I became the Reeve.  And what
 13   is my job, it is to represent the interests of my
 14   people.
 15               We view the floodway expansion as a
 16   major concern.  And with that, we find it very
 17   difficult to have our concerns addressed while
 18   we're looking at things such as baseline concerns.
 19   I view it as David and Goliath, the $75,000,
 20   $10 million.
 21               I want to tell you, Mr. Webster, that
 22   your comments earlier when you talked about the
 23   baseline and wanted clarification to see if that
 24   was brought forward to the MFA, I want to tell you
 25   it has been many, many times.  As a matter of
00155
  1   fact, as we brought forward our concerns to the
  2   MFA, the response was that those concerns were not
  3   in their mandate and they did not fall upon the
  4   baseline of this project.  And we continue to get
  5   that response many, many times.
  6               Now as I go through the rest of this,
  7   I just want to make comments on statements that
  8   were made by the legal counsel.
  9               There was a comment regarding offering
 10   engineer access to the municipalities.  I want to
 11   tell you that the many meetings that the RM of St.
 12   Clements has had with the surrounding RMs and the
 13   City of Selkirk, every issue has been brought
 14   forward, but the end answer for most, not all, but
 15   for most was it was not in our mandate and it did
 16   not cover the baseline.
 17               So at that point, if you have the head
 18   of the MFA making the statement, why would you go
 19   to the engineers, you would get the same answer.
 20   It would be pointless.  And I wanted you to
 21   understand why we haven't done that.  That is the
 22   reason.
 23               There was also comments made regarding
 24   these concerns were not forwarded to the MFA.  I
 25   want to show you through all conversations I've
00156
  1   had, whether with the MFA or the Provincial
  2   Government or the Federal Government, that these
  3   concerns have not changed.  They have always been
  4   the same.  And we have tried to deal with each and
  5   every one of them on every level possible.
  6               We are frustrated.  We as municipal
  7   leaders are responsible to protect our residents,
  8   and the feeling is we are not able to do that.  So
  9   try to place yourself in our shoes and give that
 10   consideration.
 11               Now reflecting on the meetings that we
 12   did have with the ministers, I want to tell you
 13   that there was not a conclusion of every aspect of
 14   our concerns.  If there was, we wouldn't be here.
 15               The RM of St. Clements is putting
 16   forward, just for this presentation, at least
 17   $25,000, money which I'd rather spend on
 18   infrastructure for my municipality, not sitting
 19   here talking to you gentlemen, though it is a
 20   pleasure.  But, you know, my rate payers would
 21   certainly be patting me on the back if I was
 22   fixing a few more roads.
 23               Now during the meetings and the letter
 24   which was referred to from Minister Ashton, some
 25   issues, as I said earlier, were dealt with.  But
00157
  1   in my eyes as a Reeve and speaking to my council,
  2   they weren't dealt with in a way which is
  3   satisfactory.
  4               There was comment given regarding a
  5   study, an aquifer study.  Well, a study is a
  6   study, but at the end of the day, how much power
  7   does that study have?  I asked that question.  And
  8   when we received a written response from the
  9   Minister, I don't feel it was answered.  And if
 10   the study had the power and enabled us to act on
 11   it, again, I probably wouldn't be sitting here,
 12   because those concerns were aquifer-related
 13   crossing and so on and so forth, you gentlemen
 14   know the list.
 15               Also another comment which was brought
 16   out regarding they are not deepening the floodway.
 17   Well, that's not a true and accurate statement,
 18   because if they tell you, even though the design
 19   plans are not done, and as they go along they will
 20   make the decision on how deep it has to be.  And
 21   when the question was asked, it could go up to two
 22   feet -- well, I asked the question also, two feet
 23   from where?  Was it the lower plateau of the
 24   floodway or was it the bottom of the ditch?  Well,
 25   this was just recently and I received a new
00158
  1   answer.  It was both.
  2               So at the point of going forward and
  3   you're building this floodway, and the answer
  4   being both, I am concerned at the point of
  5   licensing who will oversee this?  Who will protect
  6   this?  Who will give my rate payers a say in what
  7   decision is being made?  It certainly concerns us.
  8               These are real concerns to my rate
  9   payers.  We're talking about the aquifer.  We're
 10   all sitting here enjoying a nice clean glass of
 11   water.  I have people who are -- well, first of
 12   all, my family, I have three children, my friends,
 13   my neighbours who are my friends, and all the
 14   residents who elected me to represent them, this
 15   affects them.
 16               The RM of St. Clements on the south
 17   end is fitted between the river and the floodway.
 18   And with conversations with the MFA and with their
 19   hydrologists, they openly state, and also in the
 20   EIS report, that you will have a reversal within
 21   the system.  So if you do so and you have
 22   contamination within the system, the question
 23   would be, does it cleanse itself?
 24               Well, I have to tell that you in East
 25   Selkirk which falls in our area, we have a water
00159
  1   boil advisory, and the reason being we had sewage
  2   leaking into the well system which has been
  3   detained, but the health order stands.  And what
  4   we're hearing from the health officer who is in
  5   charge is that they will never lift that order
  6   until water and sewer are put in.
  7               So I am telling you this so I want you
  8   to understand why we have these concerns and that
  9   we visualize them as being very real.
 10               Our rate payers do have the right to
 11   have their aquifer protected.  We think it should
 12   be done now.  We don't think it should be done
 13   later.  We believe that doing a study which is
 14   going to take approximately two years is two years
 15   too late.  It should be done already, and I
 16   shouldn't have to be worrying about addressing it
 17   and that information should be all there.
 18               The bottom line is, I think the
 19   process for these hearings are licensing a rebuilt
 20   floodway, it's not licensing a half a floodway,
 21   but the baseline is only addressing half of the
 22   floodway.  And how ironic is it in my eyes, and
 23   maybe to you, I don't know, you'll make your own
 24   decision, that in discussions as they go ahead and
 25   construct this floodway, as they come up to one
00160
  1   portion, I'll use an example of the Springhill ski
  2   hill where the aquifer weeps into the floodway,
  3   they will go to the west side.  And when they get
  4   to the north, they are going to continue both on
  5   the east and west side.
  6               The manpower is there, the people are
  7   there, the knowledge is there.  They openly say
  8   they will make every attempt they can to see all
  9   the other aquifers.  But under this baseline, they
 10   will jump over that portion.
 11               You heard comments about sewage, raw
 12   sewage almost coming in from the storm sewer
 13   outlet in Transcona, mixing with our clean, fresh
 14   water in our aquifer waters.  Yes, we understand
 15   that the aquifers come out and the sewage crosses
 16   over.  But as you'll hear, the concern is that it
 17   could create a contamination, and that any concern
 18   whatsoever, any concern has to be addressed now.
 19               I believe you, as a board here, have
 20   the power to stop this.  You have the power to
 21   allow our questions to be answered, and you have
 22   the power to send a message to the government
 23   saying this is not acceptable.  That would bring
 24   them back to the table and would allow us to
 25   address this in a way which is respectful for both
00161
  1   the City of Winnipeg and the residents to the
  2   north.  And I'm asking you to do that.  Thank you.
  3               THE CHAIRMAN:  Thank you, Mr. Strang.
  4   I just note that the panelists will ignore the
  5   efforts of two of the reeves to flatter us.
  6               MR. CURRIE:  I'm disappointed to hear
  7   that, Mr. Chairman.
  8               THE CHAIRMAN:  Mr. Currie, have you
  9   concluded your final comments?
 10               MR. CURRIE:  I have essentially,
 11   Mr. Chairman, with just some very brief clean-up
 12   comments.
 13               I note that the MFA counsel referred
 14   to Justice Hirshfield's decision.  I doubt that it
 15   will shock the chairman or the panel to have me
 16   say I disagree with perhaps the outcome and
 17   conclusion that he has with it.
 18               What Justice Hirshfield had to decide
 19   on was whether in fact the CEC hearing should go
 20   ahead in the first place.  It was a class one
 21   project.  And Justice Hirshfield concluded that
 22   since it was a class one project, there was no
 23   Environmental Act ability to call a hearing.
 24   That's what he concluded.  I think it's fairly
 25   stated in the front, what we call a head note.
00162
  1               He states, there is no provision in
  2   the Environment Act which required public input
  3   into, or from, or content of an environmental
  4   impact assessment, or the terms of reference
  5   directed by the Minister of the Environment to the
  6   respondent Commission.  In effect, he decides
  7   that, in fact, it's just not applicable.
  8               And most of these comments that flow
  9   from thereafter, we refer to them as obiter
 10   comments, that is that they are not central to his
 11   decision, they are, in fact, simply just comments
 12   on the state of the law.  And had there been a
 13   central argument put forth, the decision might
 14   well have come in other terms.  We just don't
 15   know.
 16               But my point is that we disagree with
 17   counsel for the MFA as to the conclusions that can
 18   be drawn from that particular decision.  So we put
 19   little or no weight on it in our arguments.
 20               Final clean-up, Mr. Chairman, is
 21   somewhat this way.  In my experience, when you ask
 22   for something, you should be clear in what you're
 23   asking for and you should be able to give to the
 24   Commission a sense of where you intend to go if
 25   you got what you wanted.  And I ask now the
00163
  1   Commission if they want me to go into that aspect
  2   of it, or is it sufficient for you to go make your
  3   decision and if it comes back in the negative, we
  4   simply move on, if it comes back in the positive,
  5   you will give us time to say to you what we think
  6   on a go-forward basis what we need.
  7               And I leave that to the Commission,
  8   without spending too much time on it this
  9   afternoon.  I can give the Commission some basic
 10   ideas.
 11               THE CHAIRMAN:  I don't think we need
 12   that now, Mr. Currie.  If we do come back with a
 13   positive decision or a decision in your favour, we
 14   will seek that input at that time.
 15               MR. CURRIE:  Thank you.
 16               THE CHAIRMAN:  However, I do know that
 17   one of my colleagues may have a question in that
 18   regard.  Do you want to put that question -- in a
 19   related regard?
 20               MR. CURRIE:  Sure, of course.
 21               MR. MOTHERAL:  Thank you,
 22   Mr. Chairman.  The Commission, of course, has a
 23   great challenge after hearing the comments today.
 24   Several comments today have been made that are
 25   substantive issues that will come up when the
00164
  1   hearings do begin.  And I know there were several
  2   of those today.  We have to separate them as a
  3   party here, to separate those to those that were
  4   spoken on the actual motion today.  And that's the
  5   challenge we have right now.  And it's going to be
  6   a difficult one.
  7               And I'd also just like to ask you a
  8   question, you and your party that you're
  9   representing; what would you suppose would be a
 10   proper delay in the hearings?  Now I've heard a
 11   couple, three different comments.  At first, I
 12   understood six weeks.  Now I hear in your comments
 13   it could take up to three months.  How do you
 14   think that should be determined?  Who should
 15   determine that?  Because we all want this project,
 16   from what I understand, to go ahead in our own
 17   terms.  And we want to know who is going to make
 18   the decisions as to how much information and when
 19   we have enough information?  That's a challenge.
 20               MR. CURRIE:  I'll speak to it very
 21   briefly, and then I know that my colleagues here
 22   will want to the address that issue.
 23               And that is specifically, I guess my
 24   earlier point asking, making sure I am clear about
 25   what are we asking for.
00165
  1               And the first point that we are going
  2   to make is that, we make it in our brief, it will
  3   be somewhat driven by the MFA and their ability to
  4   come back to us and tell us they can get us that
  5   information, or it will be done in a fashion that
  6   is reasonably quick.
  7               We think four weeks is a substantial
  8   amount of time, but I can't really drive their
  9   team.  I'm not behind that process.  The
 10   Commission can set the timing.  The Commission has
 11   the authority to do that.  They can say -- they
 12   have already done it in effect.  We already went
 13   through that earlier.  We were asking and the
 14   responses were not coming back.  So the Commission
 15   has already been there.  So now the Commission can
 16   make a decision.
 17               And I am wondering if the decision
 18   comes back in the positive at all, that that would
 19   be the time to sit down with the parties and say,
 20   okay, what is reasonable?  What's logical?  How
 21   can you respond and how quickly can you respond,
 22   and what are you really asking for?
 23               So I am a realist and I know that
 24   we're three months.  I don't recall saying six
 25   weeks, and if I did, I apologize.  It certainly
00166
  1   wasn't something I intended to say.  It just never
  2   came from me, I feel at least, and I don't recall
  3   my brief indicating a timing on it either.  Just
  4   simply, 12 weeks would be logical to me.  I don't
  5   see it any less than that.  I think that's your
  6   minimum time.
  7               And if the MFA came back and said to
  8   me, well, there's certain information that we
  9   can't gather, where would we get this information,
 10   or what are you really asking for, or how are you
 11   going to redesign your models?  I think it would
 12   take a lot of cooperation between the two parties.
 13   And if we do delay it, that there is a bit of a
 14   forced cooperation because, my goodness, when you
 15   come back the next time, I think that there is
 16   going to be a difficult spot here if we aren't
 17   cooperating.
 18               So if you ask me, I can tell you the
 19   minimums, I cannot tell you the maximums because
 20   it's not necessarily entirely under our control.
 21               THE CHAIRMAN:  The January 26th letter
 22   to me from the six municipalities referred to a
 23   four to six week delay.
 24               MR. CURRIE:  That's fair,
 25   Mr. Chairman.  I apologize.  I certainly didn't
00167
  1   think of it as that.  Unfortunately, I'll have to
  2   tie my clients down better next time.
  3               MR. STRANG:  The comment regarding the
  4   four to six week delay was based on a politician,
  5   the politician communication.  It wasn't based on
  6   the MFA giving the information and getting it back
  7   to us.  So at that point, I think that's where a
  8   little bit of the confusion lies.
  9               However, I just want to restate what
 10   our legal counsel said, that if there's a
 11   willingness on both parts and if the decision of
 12   this committee is to tell us to come back and have
 13   it resolved within a period of a few months, then
 14   I think we would be forced at the table to do so.
 15               THE CHAIRMAN:  Thank you very much,
 16   Mr. Currie.  No further questions.
 17               Do you feel compelled to rebut any of
 18   the information?  I didn't hear anything that was
 19   particularly new.
 20               MR. HANDLON:  We do you feel
 21   compelled.  We'll be short.
 22               THE CHAIRMAN:  Yes, please be short.
 23   And Mr. Currie will also get an opportunity to
 24   rebut your rebuttal.
 25               MR. HANDLON:  I suppose since they
00168
  1   split their argument, perhaps he has foregone that
  2   right.  But I don't think there will be anything
  3   new -- but he has addressed some issues that have
  4   come up.
  5               THE CHAIRMAN:  Speak into the mic, Mr.
  6   Handlon, otherwise it doesn't go to the recorder.
  7               MR. HANDLON:  I'm just saying that
  8   since Mr. Currie did split his argument into two,
  9   what was presented now was really a new argument
 10   on new matters.  But we're not going to repeat,
 11   we'll only be dealing with matters that have been
 12   raised.
 13               THE CHAIRMAN:  I'm not entirely
 14   convinced that Mr. Currie and his team brought in
 15   new information, but I will allow you a few
 16   minutes.  But having said that, I will also allow
 17   Mr. Currie some final comment after that.
 18               The more people you bring up to your
 19   table, the less convinced I am you are going to be
 20   quick.
 21               MR. HANDLON:  We don't want to make
 22   this a tennis match where you're going back and
 23   forth, and hopefully this will be the last volley.
 24               Just one point I wanted to make,
 25   Mr. Schwartz wanted to deal with one issue that's
00169
  1   come up.  But firstly, as to the information
  2   request, just so we're clear on them, I have a
  3   book in front of me which are all of the
  4   information requests which are broken down per
  5   participant.  So there's one section dealing with
  6   the three rural municipalities that contains --
  7   that is the document that was with the Commission,
  8   I understand, will be part of this hearing, will
  9   be marked as an exhibit.  It is as well-organized
 10   as we've been able to put together.  It has
 11   sections dealing with the request for information
 12   from each of the participants.  There's one
 13   section from the three rural municipalities.  The
 14   actual responses to those questions we have put in
 15   our brief.
 16               So as not being able to follow where
 17   the questions came from or the responses, they are
 18   all in this binder.  So to be able to find it is
 19   actually quite easy to do.
 20               The other point is the information
 21   responses and, Mr. Chairman, your letter.  Your
 22   letter was very clear on January 5th of 2005, and
 23   the letter was clear that if people,
 24   participants -- by then, the information responses
 25   had been given on December 10th of 2004 -- that if
00170
  1   people were opposed or had issues regarding the
  2   sufficiency of those answers of the responses,
  3   that they could raise an appeal to you in a formal
  4   way.  Those weren't appealed by the
  5   municipalities, and for them now to come forward
  6   and say there is deficient information -- in fact,
  7   in between that directive from yourself on
  8   January 5th, there was a pre-hearing conference.
  9   At that time, they did deal with the letter that
 10   they had to government.  And at that time they
 11   repeated to you that they were looking for a delay
 12   of a period of time, not to get information that
 13   they said was deficient, but to have meetings with
 14   the government.  It's only after that pre-hearing
 15   conference, and when we received the brief a week
 16   ago, that they have articulated -- and quite
 17   frankly it wasn't until we received the brief only
 18   a few days ago -- articulated, in a very general
 19   fashion, the information that they wanted.
 20               In fact, Mr. Currie pointed out in
 21   paragraph 20 of his brief, and that was the area
 22   of where they want clarification.
 23               Quite frankly, those issues were dealt
 24   with, as I said, in the EIS.  And if they wanted
 25   further information and it was such to delay these
00171
  1   hearings, it should have been coming forward a lot
  2   sooner than this.
  3               And I think one of the questions
  4   raised was, who is then to determine the
  5   sufficiency of the response?  These questions that
  6   had been posed are very long term, based on
  7   long-term monitoring, and it's not something that
  8   could be taken in a very short term.  So if there
  9   is an adjournment that is being requested,
 10   realistically it's very long term.  And as I've
 11   said at the beginning, it's not in the public
 12   interest to do that.
 13               Mr. Schwartz just had a comment I
 14   believe relating to the issue of baseline.
 15               And also, before I turn it over to
 16   him, there is a number of comments made in the
 17   submission just a few minutes ago relating to
 18   representations that were made by consultants.  In
 19   fairness, we are not able to deal with those.
 20   There weren't names attached to those comments.
 21   Were those comments taken out of context?  We have
 22   Reeve Holland reading from an information request.
 23               Really, in order to get a full gist of
 24   it, you have to read the whole of the documents in
 25   the whole context of the hearing.  And that's why
00172
  1   we say, let's get on with the hearing, let's hear
  2   the concerns, let's deal with them in an organized
  3   fashion.
  4               THE CHAIRMAN:  Mr. Schwartz.
  5               MR. SCHWARTZ:  Mr. Chairman, very
  6   briefly, one panel member and a large number of
  7   participants made comments about baseline.  And in
  8   my view, that can and should be discussed in the
  9   proper forum, which is full hearings.
 10               Since it's been brought up here, let
 11   me just make a few things respectfully clear.
 12   Number one, the baseline that's used by the
 13   environmental study is one that's consistent with
 14   both federal and provincial standards.  The terms
 15   of reference that were established by PAT
 16   expressly call for the EIS to look at key factors
 17   in the Federal Act which include cumulative
 18   effects.
 19               The ultimate source of those terms of
 20   reference is that the Minister in this province
 21   under section 12 establishes public hearings and
 22   establishes terms of reference.  He chose to work
 23   with PAT on this.  It is not within the authority,
 24   with great respect, of either the participants or
 25   the CEC to decide that the terms of reference are
00173
  1   inappropriate, or that standards which had been
  2   established by expressed reference to the Canadian
  3   Environmental Assessment Act and all provincial
  4   standards are the wrong ones on the basis of some
  5   theoretically different model and should not be
  6   used for the purposes of this hearing.
  7               The other point I would make is with
  8   respect to delay.  In a precautionary principle,
  9   three months delay could mean one year delay,
 10   which is the difference between having the
 11   structure in place or not.  Precaution just
 12   doesn't mean precaution against adverse effects of
 13   the project, it means, in this case, precaution
 14   against an environmental disaster from not
 15   proceeding with this project.
 16               The way the precautionary principle
 17   has been interpreted and applied in this case was
 18   a very long process of planning, which is now
 19   going into its eighth year, the preparation of an
 20   Environmental Impact Statement which was done with
 21   reference to a federal and provincial committee
 22   and both federal and provincial standards, and
 23   full opportunity for all participants, including
 24   the three municipalities, to comment on that, with
 25   the result that our clients are confident today
00174
  1   that there will be no likely adverse effects, and
  2   consistently with the terms of reference, extra
  3   safety measures can be taken after construction.
  4   All consistent with terms of reference, all
  5   consistent, I would suggest, with any reasonable
  6   precautionary approach.
  7               To cavalierly postpone these matters
  8   for three months, which could mean a year, in the
  9   face of the risk, in the context of all the work
 10   that's been done and the opportunity to commence
 11   these hearings in a timely manner is a very
 12   strange form of precaution in my respectful
 13   submission.  Thank you.
 14               THE CHAIRMAN:  Thank you.  We'll now
 15   hear from Mr. Currie.
 16               MR. CURRIE:  Mr. Chairman, I
 17   personally have nothing to add; however, may I
 18   check with the PM's office, the participating
 19   municipalities?
 20               THE CHAIRMAN:  Certainly.  Briefly,
 21   please.
 22               MR. CURRIE:  Mr. Chairman, I am
 23   pleased to tell you that we have completed our
 24   submissions.
 25               THE CHAIRMAN:  Thank you very much.
00175
  1   There is no further order of business today.  I
  2   had indicated earlier today that we would try to
  3   come back with at least an oral decision at about
  4   4:00 or 4:30 this afternoon.  But at that time, we
  5   thought that we would be through this part of the
  6   session by maybe 1:30 or 2:00.
  7               Given that it's now 3:00 o'clock and
  8   that there are a number of issues, and as my
  9   colleague, Mr. Motheral, noted, it's not an easy
 10   decision we have to come to, we will not be
 11   releasing or revealing a decision, or perhaps not
 12   even coming to a decision today.  We will meet
 13   here tomorrow morning at 9:00 o'clock, and
 14   hopefully at that time we'll have a decision for
 15   you.
 16               Thank you all very much and that
 17   brings us to a close for today.
 18   
 19          (PROCEEDINGS ADJOURNED AT 3:02 P.M.)
 20   
 21   
 22   
 23   
 24   
 25   
00176
  1                  OFFICIAL EXAMINER'S CERTIFICATE
  2   
  3   
  4   
  5   I, CECELIA REID, a duly appointed Official
  6   Examiner in the Province of Manitoba, do hereby
  7   certify the foregoing 175 pages are a true and
  8   correct transcript of my Stenotype notes as taken
  9   by me at the time and place hereinbefore stated.
 10   
 11   
 12   
 13                       ----------------------------
 14                       Cecelia Reid
 15                       Official Examiner, Q.B.
 16   
 17   
 18   
 19   
 20   
 21   
 22   
 23   
 24   
 25