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  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   ========================================
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  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   
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  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
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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
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 25   
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  1                INDEX OF UNDERTAKINGS
  2   UNDERTAKING NO.                               PAGE
  3   
  4   
  5   No undertakings given
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  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
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  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.
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  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
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  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
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  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
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  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.
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  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
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  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
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  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
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  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.
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  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
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  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   th