00001 1 MANITOBA CLEAN ENVIRONMENT COMMISSION 2 PRE-HEARING CONFERENCE 3 4 5 6 7 RED RIVER FLOODWAY EXPANSION PROJECT 8 9 10 11 12 ======================================= 13 Monday, January 31, 2005 14 Delta Winnipeg, 350 St. Mary Avenue 15 Winnipeg, Manitoba 16 ======================================== 17 18 19 20 21 22 23 24 25 00002 1 APPEARANCES: 2 Clean Environment Commission: 3 Mr. Terry Sargeant - Chairman Mr. Barrie Webster - Member 4 Mr. Wayne Motheral - Member Mr. Doug Abra - Counsel 5 Mr. Dave Farlinger - Technical consultant Ms. Cathy Johnson - Secretary to Commission 6 Ms. Joyce Mueller - Secretary 7 Manitoba Conservation: 8 Mr. Trent Hreno - Chair, Project Admin Team Mr. Bruce Webb - Chair, Tech Advisory 9 Committee Mr. Stewart Pierce - Counsel 10 11 Manitoba Floodway Authority: 12 Mr. Rick Handlon - Counsel Mr. Jim Thomson 13 Mr. Doug McNeil Mr. Doug Peterson 14 Mr. John Osler - Intergroup Consulting Mr. David Morgan - TetrES Consulting 15 Mr. George Rempel - TetrES Consulting 16 17 Participants: 18 Mr. Bob Starr - Ritchot Concerned Citizens Mr. Bob Bodnaruk - RM of Springfield 19 Mr. Steve Strang - RM of St. Clements Mr. Orvel Currie - Counsel to Municipalities 20 Mr. Dave Chorney - Coalition for Flood Protection North 21 Mr. Kerry McLuhan - Coalition for Flood Protection North 22 Mr. Rob Loudfoot - 768 Association Mr. Y. Shumuk - 768 Association 23 Paul Clifton - Paul Clifton Mr. Jeff Frank - Rivers West 24 Gaile Whelan Enns - Manitoba Wildlands Earl Stevenson - Peguis Indian Band 25 00003 1 Participants: (continued) 2 3 Mr. Jake Buhler - Cooks Creek Conservation Mr. Lloyd Crooks - Cooks Creek Conservation 4 Mr. Jon Stefanson - Cooks Creek Conservation Mr. Daryl Chicoine - Counsel 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 00004 1 MONDAY, JANUARY 31, 2005 2 UPON COMMENCING AT 7:00 P.M. 3 4 THE CHAIRMAN: Good evening everybody, 5 if you could take your seats, I think most folks, 6 if not all, have arrived. 7 Thank you all for coming out tonight. 8 I don't think that we need be here too long this 9 evening. Basically what I want to go through is 10 just take you all through some of the process, 11 give you an idea of how the hearings will run when 12 we get into them in a couple of weeks, and talk 13 about some of the process issues. 14 There is a lot of paper that has been 15 handed out, a lot of it is contained -- most of 16 what we are going to discuss tonight is contained 17 in that paper. I will take you through it fairly 18 quickly and I will answer any questions. 19 Please, if you want some clarification 20 as you are going through, please just jump in and 21 interrupt. I'm not terribly fragile, I don't mind 22 if you interrupt me. 23 First of all, let's have a round of 24 introductions. For those of you who don't know 25 me, my name is Terry Sargeant, I'm the chair of 00005 1 the Clean Environment Commission. I will also be 2 chair of the panel for this hearing. 3 I would like to ask at least the 4 people sitting at the table to introduce 5 themselves. I would particularly like to 6 introduce to all of you Cathy Johnson, who is 7 sitting two down from me. Cathy is the new 8 commission secretary, she replaced Rory Grewar. 9 Some, if not all of you, have had some dealings 10 with her over the last couple of weeks, either by 11 phone or email, and you will all be having a lot 12 of dealings with her over the next few weeks as 13 this process unfolds. To my left are my fellow 14 panelists on the Commission, Barrie Webster and 15 Wayne Motheral. And if we would start some 16 introductions, your name and just the organization 17 you are with, please. One more thing, Bob, push 18 the button to turn on your mike and turn it off 19 afterwards, please. 20 MR. STARR: Bob Starr, Richot 21 Concerned Citizens Committee. 22 MR. BODNARUK: Bob Bodnaruk, Deputy 23 Reeve, RM of Springfield. 24 MR. STRANG: Steve Strang, Reeve of RM 25 of St. Clements. 00006 1 MR. CURRIE: Orvel Currie, counsel for 2 the RM of Springfield, Clements and East St. Paul. 3 MR. MCLUHAN: Kerry McLuhan, Coalition 4 for Flood Protection North of Floodway. 5 MR. CHORNEY: Doug Chorney Coalition 6 for Flood Protection North of the Floodway. 7 MR. LOUDFOOT: Rob Loudfoot, 768 8 Association. 9 MS. SHUMUK: Yaroslaw Shumuk, 10 consultant to 768 Association. 11 MR. HANDLON: Rick Handlon with the 12 Pitblado Law Firm and counsel for the Floodway 13 Authority. 14 MR. THOMSON: Jim Thomson, Manitoba 15 Floodway Authority. 16 MR. MCNEIL: Doug McNeil, Manitoba 17 Floodway Authority. 18 MR. PETERSON: Doug Peterson, Manitoba 19 Floodway Authority. 20 MR. OSLER: My name is John Osler, I'm 21 with Intergroup Consultants as part of the 22 environmental assessment team. 23 MR. MORGAN: I am David Morgan, I am 24 with TetrES Consultants as part of the 25 environmental assessment team. 00007 1 MR. REMPEL: I am George Rempel. I am 2 with TetrES Consultants, also part of the 3 environmental consulting team. 4 MR. FRANK: I am Jeff Frank with 5 Hilderman Thomas Frank Cran Consultants for Rivers 6 West and the Red River Floodway Trail Coalition. 7 MS. WHELAN ENNS: Gaile Whelan Enns, 8 director of Manitoba Wildlands. 9 MR. STEVENSON: Earl Stevenson, Peguis 10 First Nations. 11 MR. STEFANSON: Jon Stefanson, 12 engineering consultant, Cooks Creek. 13 MR. BUHLER: Jake Buhler, Cooks Creek 14 Conservation District. 15 MR. CHICOINE: Daryl Chicoine, counsel 16 to Cooks Creek. 17 MR. CROOKS: Lloyd Crooks, consultant 18 with Cooks Creek Conservation District. 19 MR. WEBB: Bruce Webb, Manitoba 20 Conservation, Environmental Approvals. 21 MR. HRENO: I am Trent Hreno, acting 22 director of Environmental Approvals Branch and I 23 chair the project administration team. 24 MR. PIERCE: Stewart Pierce, I'm with 25 Manitoba Justice, legal counsel to the Technical 00008 1 Advisory Committee, Department of Conservation. 2 MR. FARLINGER: Dave Farlinger, 3 technical consultant to the commission. 4 MR. ABRA: Doug Abra, lawyer for the 5 Clean Environment Commission. 6 THE CHAIRMAN: Thank you all. First 7 item I would like to just talk about briefly, or 8 perhaps not so briefly, but I'm sure all of you 9 either read Saturday's paper or have heard about 10 the story in Saturday's paper about the request 11 for a delay of the hearings. It was a letter that 12 was sent to me by the Mayors of Winnipeg and 13 Selkirk, Deputy Reeves of East St. Paul and St. 14 Andrews, and the Reeves of Springfield and St. 15 Clements. 16 I have included in the package for all 17 of you a copy of three different letters. One is 18 the letter from the Mayors and Reeves to me 19 requesting this delay. The second -- another one 20 is a copy of letter that I received about midday 21 today from Mr. Ernie Gilroy, the CEO of the 22 Manitoba Floodway Authority, in which he provides 23 his comments on the matters raised in the letter 24 from the Mayors and Reeves. And the third is my 25 response which went out late this afternoon to the 00009 1 Mayors and Reeves. 2 In my response I note that each of the 3 12 issues may or may not be brought up before the 4 hearings of the Clean Environment Commission. I 5 also note that we do have, the Clean Environment 6 Commission does have existing process guidelines 7 which allow for the type of request that they are 8 asking to be brought before the panel that has 9 been struck for this hearing process. So I have 10 said that at this point I'm not prepared to 11 deviate from the process, therefore, I'm not 12 prepared to change the start date of the hearings 13 from February 14th. So we will have our first day 14 of hearings two weeks from today at 9:00 o'clock 15 at the Sheraton Hotel, just a couple of blocks 16 from here. 17 I have noted in this letter that under 18 our existing guidelines, process guidelines, it is 19 open for any participant to bring a motion before 20 the hearing which might ask for the same thing as 21 was asked for in the letter that was sent to me 22 last Friday. And I note in this letter that if 23 they choose to go this route, if they want to 24 bring a motion, we would hear it on the first day 25 of the hearings. And I set out three points of 00010 1 argument that they would have to make before us. 2 All other participants would, if they so wished, 3 be allowed to speak to this motion, and the 4 Floodway Authority would be allowed to respond to 5 it. And then following that, following completion 6 of the discussion on the motion, the panel, the 7 three of us would recess and come to a decision, 8 either immediately or within a relatively short 9 time. 10 Now having said that, I don't know and 11 I'm sure that they haven't had time since this 12 letter went out late this afternoon, I'm sure that 13 the municipalities have not had time to consider 14 this letter and to consider any further action. 15 So I don't know, and we may not know for a few 16 days whether or not such a motion will be brought. 17 So having said that, the agenda or the 18 schedule, the draft schedule which is also in the 19 materials might change slightly, it might be 20 delayed a day or two, or if they make a very 21 compelling and convincing argument and the panel 22 decides to delay the hearings in general for some 23 time, it may be delayed longer than that. 24 Unless there is some specific 25 questions of clarification on that, I would just 00011 1 as soon not spend much time discussing that. 2 Mr. Strang. 3 MR. STRANG: Just one question, 4 Mr. Chairman. Regarding the submission, you've 5 given a date by noon of February 7th. Is it just 6 notification? 7 THE CHAIRMAN: No, I would prefer that 8 you notify us even before next Monday, but by next 9 Monday that we have a formal motion in front of 10 us. I think that it is only fair that the other 11 parties have a few days to prepare their arguments 12 either for or against the motion. 13 MR. STRANG: So if we put that 14 forward, can we basically do a point form as to 15 the argument, but not go into great detail? 16 THE CHAIRMAN: Absolutely, the motion 17 need not be very detailed at all, just something 18 to the effect of, we wish to raise a motion 19 calling for an adjournment or a postponement of 20 these hearings and we will bring argument. And I 21 would centre it around the 12 points or the 22 matters raised in your original letter, and it 23 might be just structured around that letter. 24 MR. STRANG: Thank you. 25 THE CHAIRMAN: You are welcome. 00012 1 MR. LOUDFOOT: You indicated that 2 there was a possibility of a one or two day delay 3 if you found against the motion, if it is made? 4 THE CHAIRMAN: Well, the delay would 5 only be that we may spend a day or two at the 6 beginning dealing with the motion, so that the 7 agenda or the schedule that we are going to talk 8 about in a few minutes may end up getting backed 9 up a couple of days. 10 MR. LOUDFOOT: When would we get a 11 final date when we would be making our 12 presentations? 13 THE CHAIRMAN: I don't know if you 14 will ever get that until the day you make it. 15 These things are fluid. You will have a general 16 idea, I would think within two or three or even 17 one or two days, probably fairly soon. I think we 18 will know by next Monday whether or not we are 19 going to be spending the first day or two of the 20 hearings dealing with a motion. And then after 21 that the schedule would kick in more or less as it 22 is presented here tonight. 23 MR. LOUDFOOT: Thank you. 24 THE CHAIRMAN: Anything else on that 25 issue? 00013 1 Okay. Let's move on then, and on the 2 agenda that more or less covers the review of the 3 process to date. I don't think that we need cover 4 matters that we have dealt with in the past. 5 We have included a fair bit of 6 material in the package before you tonight, and we 7 have included the terms of reference which I think 8 all of you have seen. We distributed it at I 9 believe the last meeting in October. It just 10 basically sets out -- or not basically, it sets 11 out the mandate of the hearings and the scope of 12 the review. As I'm sure you are all aware, the 13 scope of the review is fairly broad within certain 14 parameters, if that's not too confusing or too 15 murky. 16 Going on, I have set out a little bit 17 about the format of the hearings. And we would 18 like -- I would like as much as possible to keep 19 the hearings as informal as possible. However, 20 given the number of parties that are coming before 21 us and the issues that will be before us, there 22 has to be some structure to the process. 23 I note that every participant who is 24 appearing before the panel and giving evidence to 25 the panel will be sworn in. I also note that 00014 1 every participant -- and you will recall that at 2 the last pre-hearing meeting in October we set out 3 sort of a paper or some notes on status, and we 4 made a differentiation between participants and 5 presenters. Each of the groups here tonight is 6 considered to be a participant, which gives you a 7 little more, a little higher status -- maybe I 8 shouldn't use the word "higher," but a little 9 different status from the presenters. You will be 10 certainly more involved in the process. There 11 will also be higher expectations of the 12 participants. 13 Whoever is giving evidence on your 14 behalf, as well as being sworn in, will also be 15 subject to cross-examination by members of the 16 panel, perhaps by our legal counsel, perhaps by 17 the proponent, and also by each other participant. 18 So each of the groups here, if you have issues 19 that you want to question other participants in 20 the group, that will be allowed under our process 21 guidelines. 22 At the conclusion, towards the end of 23 the hearings, each participant group will be given 24 about an hour, or up to an hour to make a final 25 argument, and the Floodway Authority will be given 00015 1 up to three hours. We will come to a little more 2 detail on that when we get to the schedule, the 3 proposed schedule. 4 The presenters, who for the most part 5 are just members of the general public, will be 6 given 15 minutes to make a presentation. In some 7 cases where they have made a compelling argument 8 they may be given a little bit more time than 9 that. They will not be subject to 10 cross-examination by anybody. Panel members may 11 ask questions of them seeking clarification. 12 The rules of procedure that we follow 13 are the established process guidelines respecting 14 public hearings. I believe they were made 15 available to you at the October 14th meeting. If 16 not, if you don't have them, they are online at 17 our website which is CECmanitoba.ca, and it is 18 under rules and then under Environment Act, and 19 you will find the process guidelines there. 20 We will be recording and making 21 transcripts of the hearings every day, as we are 22 this evening. Cecelia Reid over in the corner is 23 somebody that you will see lots of over the next 24 few weeks. She and her colleagues will be 25 recording the proceedings. They will be available 00016 1 online for the most part within a day or so. If 2 you want printed copies you will have to contact 3 her and they are available at whatever cost her 4 firm attaches to them. 5 MS. WHELAN ENNS: Could I ask a 6 question about transcripts? 7 THE CHAIRMAN: Yes. 8 MS. WHELAN ENNS: Generally speaking, 9 there is a need to see the transcript of the most 10 recent day of a hearing to be able to function in 11 the room for the next day of the hearing, and that 12 was achieved fairly consistently during the 13 Wuskwatim hearings. So I am just asking for a 14 clarification on a day or so? 15 THE CHAIRMAN: I would think that we 16 would meet the same schedule as we had at 17 Wuskwatim. And perhaps Cecelia could correct me, 18 but they will be available online the next day -- 19 COURT REPORTER: Except for the days 20 when we are sitting until 9:00 at night. 21 THE CHAIRMAN: So when we finish, the 22 days we finish at 5:00 in the afternoon they will 23 be available the next morning online. When we sit 24 until 9:00 in the evening, some of the transcript 25 won't be available until later the next day. 00017 1 The order of presentation we will go 2 through when we come to the draft schedule. Do we 3 have the draft schedule? We will come to that in 4 a few minutes, the order of presentation. 5 Motions, I have already mentioned the 6 possibility of a motion on a delay. Throughout 7 the process our guidelines allow for people to 8 make motions in respect of procedural issues, and 9 I would refer you to the process guidelines clause 10 11 in that regard. 11 Submissions, I believe that you were 12 all asked to provide an overview of your 13 submission by today. I believe that all have done 14 so. We would, if at all possible, like to see the 15 complete submission and supporting documents no 16 more than five calendar days before you are going 17 to make your presentation. This is just to allow 18 the other parties to have a chance to digest 19 fairly heavy and thick material that they may wish 20 to bring up during the -- that they may want to 21 question you on during your presentation. 22 MR. CLIFTON: Mr. Chairman, I am 23 sorry, I came in late, and I wonder if I could 24 just seek clarification on what you just said? 25 You said that everybody to date has submitted 00018 1 their submissions. Is that, you are speaking to 2 funded participants or all -- 3 THE CHAIRMAN: Yes, the funded 4 participants. 5 MR. CLIFTON: So unfunded 6 participants, that's within seven days or what 7 is -- 8 THE CHAIRMAN: Well, actually our 9 process guidelines don't distinguish between 10 funded and unfunded. They say 14 days before the 11 start of the hearings. We would certainly give a 12 reasonable amount of leeway to the unfunded 13 participants, but we wouldn't tolerate, for 14 instance, turning it in the night before. 15 MR. CLIFTON: Just speaking to that, I 16 corresponded on the weekend to your office asking 17 for an extension of time. I'm not looking for a 18 two week extension of time, but as yet I have 19 heard no reply. 20 THE CHAIRMAN: Okay, Mr. Clifton, I 21 would rather not deal with that before the whole 22 group, but we will certainly deal with that off 23 record or by email in the next day or two, and I'm 24 sure that we will be able to accommodate you. 25 MS. WHELAN ENNS: Small question then 00019 1 on the submissions that were in today; our office 2 has only received one of those so far, so I would 3 really appreciate some clarification in terms of 4 how much, when, and so on we are going to receive 5 electronically, and what the standard will be then 6 to make sure that all of the participants are 7 seeing everything that is in fact going to the 8 Commission? 9 THE CHAIRMAN: The standards will be 10 the same as they always have been, they will be 11 distributed. We have asked all participants to 12 submit them to all of the other participants. It 13 is not our job to be a clearing house and to 14 distribute them to all of the other participants. 15 MS. WHELAN ENNS: I would certainly 16 agree with you that it is not a job of the 17 Commission. It is, though, a responsibility 18 inherent in all of us who are parties to this 19 process, and inherent in terms of the Commission's 20 responsibility to make sure that materials are 21 available. The standard in this regard for 22 Wuskwatim worked very well because it was 23 electronic. That's part of -- it is a two-part 24 question because I'm trying to sort out whether we 25 are in fact going to be receiving things 00020 1 electronically or not? 2 THE CHAIRMAN: We will ensure that 3 however it happens that all participants will 4 receive copies of all of the submissions within 5 the next couple of days. 6 MS. WHELAN ENNS: Thank you. 7 MR. MCNEIL: I believe that we 8 received most of the participants' submissions 9 today, but maybe some of them didn't get directly 10 to us. So I would ask that -- because I believe 11 that your instructions were that not only did the 12 other participants receive submissions, but also 13 the proponent. 14 THE CHAIRMAN: Of course. So we will 15 check with your office, Mr. McNeil, and ensure 16 that you also have received copies of all that we 17 have received. 18 MR. MCNEIL: Thank you. 19 MS. JOHNSON: To be fair, I only 20 received a lot of them at 4:00 o'clock or later 21 this afternoon, so they could be sitting in your 22 email right now and you just haven't seen them 23 yet. 24 MS. WHELAN ENNS: That's a reasonable 25 observation, though the question is a little bit 00021 1 larger, because we do not yet in this proceeding 2 or undertaking have the standard that was 3 operational during the Wuskwatim proceedings in 4 terms of electronic access to materials. So I'm 5 making a query, but also a suggestion, a hopeful 6 suggestion that that's the direction in which we 7 are moving. 8 And if they have all arrived at the 9 CEC and have already been sent out electronically, 10 that's great news, thank you. 11 MR. STARR: Just a clarification on 12 the hard copies. We sent our submission in today 13 electronically. I know the Commission needs hard 14 copies. Are we sending everyone here hard copies? 15 THE CHAIRMAN: No. If you are able to 16 send the material to all other parties 17 electronically, that is sufficient. Our 18 instructions were that they be by email, hard 19 copy, or fax. So if you have sent it to one 20 designated person and all of the other participant 21 groups and the Floodway Authority by 22 electronically, that is certainly sufficient, 23 Mr. Starr. 24 MR. BODNARUK: For members of the 25 general public, how many copies should they 00022 1 provide to the Commission and -- 2 THE CHAIRMAN: General public? 3 MR. BODNARUK: Yes, and also the 4 blocks of time for when they would be doing their 5 presentations? 6 THE CHAIRMAN: Some of that is set 7 out -- on your latter point, those that have 8 contacted us saying that they wish to make a 9 presentation are slotted in on the schedule that 10 we will come to in a few minutes. As far as 11 copies of their presentation, if they have a 12 written presentation they should provide six 13 copies for members of the Clean Environment 14 Commission, and then one copy each for the other 15 participant groups, at least one copy for the 16 Floodway Authority, and then if they want to bring 17 any more for other members of the public, that's 18 up to them. I think during the Wuskwatim hearings 19 we generally recommended that people bring 25 or 20 more copies. 21 We don't expect the general public 22 presenters to all have written presentations. If 23 they have written presentations and if they are 24 able to bring those or provide copies of those, 25 that would certainly be helpful. 00023 1 MR. BUHLER: We sent hard copies to 2 all of the participants. We have one participant 3 that has not been served because he is on 4 vacation. So everybody has received it except 5 one. I'm not sure exactly how to go about -- if I 6 send another one to another party of that group 7 or -- 8 THE CHAIRMAN: Well, I would think if 9 you have done -- I think you have done sufficient, 10 and perhaps you might be able to email somebody 11 from that group or contact somebody from that 12 other group and find out how to get it to them. 13 MR. STRANG: We brought a hard copy of 14 our presentation online tonight and gave it to 15 Cathy. I was under the impression that's what we 16 were supposed to do, but there is other options 17 obviously open to us. 18 THE CHAIRMAN: Yes, there are. 19 MR. LOUDFOOT: So I assume that if we 20 have brought hard copies and haven't handed them 21 out yet, for the CEC, we would give the copies to 22 Cathy, that's the person? 23 THE CHAIRMAN: Yes. Thank you. 24 Anything else on submissions or 25 materials? 00024 1 MR. STEVENSON: Just for the record, I 2 have provided hard copies to the CEC with regards 3 to our submission for all participants. 4 THE CHAIRMAN: Thank you. Okay, we 5 will come back to the paper in front of us. Time 6 limits, I note that for the participant 7 presentations we have not instituted any time 8 limits on presentations, however, we have asked 9 each of you for an estimation of the time that you 10 expect, or an estimate of the time that you will 11 require. We have received that from most, 12 although not all of you yet, and we will hold you 13 more or less to the time frame or to your time 14 estimation. 15 The general public presenters will be 16 held, as I noted earlier, to about 15 minutes, 17 with some exceptions going a little longer. If 18 general public presentations in particular become 19 very repetitive, we certainly won't grant any 20 extensions beyond 15 minutes. 21 A note on cross-examinations, and I 22 will come back to this in another context in a 23 couple of minutes. There is no time limits on 24 cross-examinations, it is really impossible to 25 determine or to put a limit on how many questions 00025 1 you may have of the Floodway Authority or of the 2 other participants. However, again if 3 cross-examination becomes repetitive or not 4 relevant, or if the question has already been 5 asked and answered, then that question will be cut 6 off. And I note in these notes that if the party 7 answering the question appears to be ragging the 8 puck, we will try and move them along as well. 9 Closing statements, as has already been noted, 10 will be limited. 11 Logistics, it just sets out when and 12 where we are going to be meeting; the first week 13 at the Sheraton Hotel down the street; the second 14 week at the Oakbank United Church; the third week 15 back at the Sheraton Hotel; if we need to go 16 beyond that, wherever we can find a room on 17 relatively short notice, we will set that at that 18 time. 19 I noted already that the proceedings 20 will be recorded. When you are speaking before 21 the hearings, just please identify yourself and 22 speak clearly into the microphone. We will have a 23 PowerPoint, CD laptop, et cetera set up for any 24 that wish to use that. If you do wish to use that 25 during your presentation and you wish to use the 00026 1 one that we have, please let us know in advance so 2 that we can have it set up. 3 Also if for any reason you are not 4 able to attend at your appointed time, please let 5 us know, if at all possible, 24 hours ahead of 6 time. 7 I should say to all participant 8 groups, we will give you a date when we think you 9 will be on, but please be prepared to go a day or 10 two earlier than that just in case, one, we get 11 ahead of schedule; or two, somebody else drops out 12 and we need somebody to come in and backfill. So 13 you may be asked to appear before you are 14 scheduled to. We will try not to -- we will try 15 to stick to the schedule as much as possible just 16 to be fair to all, but -- 17 MR. LOUDFOOT: What if we have out of 18 town representation? 19 THE CHAIRMAN: We will certainly 20 recognize that. I mean, we will be relatively 21 easy going. We are reasonable people. If you 22 have an out of town person that's not here, we are 23 not going to require you to come ahead. We will 24 try and find somebody else to fill that slot. 25 Some notes on conduct during the 00027 1 hearing. Number one -- and I'm going to be, I 2 will probably be a pain on this one -- if I hear 3 cell phones ringing when we are in session, I will 4 either boot you out or the cell phone out or maybe 5 both. Please at least turn them on to vibrate and 6 don't take calls in the hearing room. 7 Some notes on procedural fairness. In 8 here I just set out that although we will have 9 some structure to this, and we have to be fair to 10 all parties, we will also within reason be 11 flexible. You know, if we had something as 12 Mr. Loudfoot just requested, we will be reasonable 13 to that kind of request. We will be reasonable -- 14 we recognize that a number of you don't have legal 15 counsel, we are going to try as much as we can to 16 level the playing field so that nobody gets 17 intimidated or doesn't feel comfortable in 18 participating before our hearings. 19 A note on relevance, which I have 20 mentioned a few things about relevance before, and 21 look through those. 22 Some notes on cross-examination; I 23 have already noted that participants giving 24 evidence, or witnesses giving evidence will be 25 subject to cross-examination. It may be done -- 00028 1 it need not be done by legal counsel, it can be 2 done by any member of your group. Members of the 3 general public will not be allowed to 4 cross-examine other than to ask questions of the 5 Floodway Authority, they will not be allowed to 6 cross-examine the other participant groups, but 7 they will, of course, be allowed to ask questions 8 of the Floodway Authority if they so choose. 9 I also note that members of the panel, 10 the three of us can ask any question at any time. 11 And when participants are cross-examining other 12 participants, you will only get one kick at the 13 cat. We don't want people jumping up and down, 14 coming back and forth. If you want to 15 cross-examine, if group A wants to cross-examine 16 group B, you get one shot, whether that's ten 17 minutes or half an hour, that's it. You don't 18 come bouncing back up again. 19 Show respect, if we are going to keep 20 this informal and as easy going as possible, I 21 don't want to see any disrespect from anybody. 22 Criticism of other parties should only be 23 substantive, constructive, and done respectfully. 24 I don't particularly want to see any discrediting 25 of witnesses. You are certainly able, if you feel 00029 1 that you need to establish the credentials of 2 another witness, that's fine, but please again 3 remember the comments on respect. I think that it 4 would help the process a lot if any of you who are 5 bringing witnesses to give evidence provide a 6 brief CV, or even an extensive CV of that witness, 7 it should -- if those are provided ahead of time, 8 then it should do away with needing to challenge 9 or establish the credentials of the person. If 10 you feel that you need to challenge a person's 11 qualifications, do so very carefully, because I or 12 the other panelists won't tolerate disrespect 13 towards any of the witnesses. 14 A final note in these pages, 15 communication with the panel, particularly from 16 about here on through until shortly after the 17 hearings commence, any formal communication with 18 the Clean Environment Commission should be done 19 through Cathy, the Commission Secretary, or if you 20 want to talk with the panelists specifically, it 21 should be done openly. I mean, I'm not talking 22 about chatting in the hallway about the weather, 23 but anything to do with issues before us, don't 24 come up and start talking with panelists about 25 issues before the Commission in isolation of the 00030 1 other parties. 2 MS. SHUMUK: Excuse me, a 3 clarification going back to witnesses -- in a case 4 such as the 768 Association hiring a consultant, 5 if you could just clarify, would the consultant in 6 that case be a witness? 7 THE CHAIRMAN: If you are giving 8 evidence or if that consultant is giving evidence, 9 yes, that's the witness. 10 Any other questions on the pages that 11 we have just gone through? 12 MR. STARR: Yes, I have some, 13 Mr. Sargeant. Just to go over, as I am new to 14 this whole process, the day we present, ours is 15 half an hour, so immediately after that would be 16 cross-examinations? 17 THE CHAIRMAN: We will go through that 18 in a bit of detail when we get to the schedule, 19 Mr. Starr. 20 MR. STARR: Okay. 21 THE CHAIRMAN: Is that your concern? 22 MR. STARR: Yes. 23 THE CHAIRMAN: Okay. Let's turn to 24 this schedule of proceedings. We will try as much 25 as possible to stick to this or a similar 00031 1 schedule, but these processes are unpredictable 2 and fluid and we may have to change, or it just 3 may change beyond our control. So, we have set it 4 out on a daily basis for what we anticipate will 5 be 12 days of hearings. 6 On the first day, after opening 7 comments by me, Mr. Hreno on behalf of the project 8 administration team will give a fairly brief 9 overview of the process that the project 10 administration team has followed, and then 11 following that we will really get into the meat of 12 it. And the Floodway Authority will then present, 13 make a presentation of an overview of their 14 project, as well as a reasonably detailed overview 15 of the environmental impact statement that they 16 have presented. And that could take anywhere, 17 three, four, five hours. I know in the Wuskwatim 18 hearings Hydro took two or three days all together 19 to make that case, but we were dealing with sort 20 of two different things there, we were dealing 21 with the need for as well as with the 22 environmental side. So I believe that the 23 Floodway Authority anticipates somewhere in the 24 area of about three to four hours. 25 As soon as they have finished their 00032 1 presentation, we will start with 2 cross-examination. And the initial 3 cross-examination will come from members of the 4 Clean Environment Commission panel and perhaps our 5 legal counsel. And then once that's done, the 6 participant groups in alphabetical order will 7 commence, if they wish, their cross-examination of 8 the Floodway Authority. I think on the second 9 last page we show the participant groups in 10 alphabetical order, so that's the order that 11 cross-examinations will be conducted. 12 I would anticipate that 13 cross-examination of the Floodway Authority will 14 take two to three days. We show all of the second 15 day as cross-examination of the Floodway 16 Authority, the afternoon of the third day, also 17 cross-examination of the Floodway Authority. And 18 in the evening there will be presentations made by 19 the citizens groups that are identified here, as 20 well as any other members of the general public 21 who contact us between now and the start of the 22 hearing, or who may just show up that night and 23 ask to make a presentation. 24 Thursday morning of the first week we 25 will have further cross-examination of the 00033 1 Floodway Authority if it hasn't been completed 2 already. And that may well complete their 3 presentation -- or the cross-examination. 4 Following that we've identified on 5 here two presentations by two of the participant 6 groups, Rivers West - Red River Corridor 7 Association, and the North Richot Action 8 Committee. And once they have made their 9 presentations, there will be cross-examination and 10 re-examination. Re-examination is -- for those of 11 you who don't know -- allows you or somebody in 12 your group to come up and address issues that may 13 have been brought up by other parties in the 14 cross-examination. 15 Second week in Oakbank, we show the 16 first day, Cooks Creek Conservation District and 17 also the three rural municipalities who are 18 participants in this process, East St. Paul, St. 19 Clements and Springfield. 20 Third day, if there is any continuing 21 cross-examination of the presentation made by the 22 RMs -- also on the second day of that week, the 23 Peguis Indian Band will make their presentation 24 and cross and re-examination. Third day, we 25 note -- 00034 1 MR. CHORNEY: Would it be possible for 2 our coalition to be immediately following the 3 municipal presentations? 4 THE CHAIRMAN: That's possible, I 5 can't make a commitment to you right now. 6 MR. CHORNEY: Because we are sharing 7 out-of-province technical experts. 8 THE CHAIRMAN: 0kay. I should have 9 noted that in the beginning when we went through 10 this. If you have any questions in that regard, 11 as you just set out, Mr. Chorney, please talk with 12 Cathy, either -- not necessarily right after 13 tonight's meeting, but over the next day or two, 14 and she will certainly try to accommodate it. I 15 mean, under the circumstances that you have just 16 set out, we will certainly do our very best to 17 accommodate that. 18 Wednesday, day three of the second 19 week, we show two more participant groups making 20 presentations, and then again in the evening, 21 general public presentations, and the last day in 22 Oakbank we show the Coalition for Flood Protection 23 North of the Floodway. 24 Third week we return to Winnipeg. We 25 have two more presentations by participant groups, 00035 1 then we have a number of presentations by general 2 public. The second day we identify a conclusion 3 of presentations, and then we show re-examination 4 of the Floodway Authority by the Clean Environment 5 Commission, but it just occurred to me that we 6 should also, after the conclusion of all of the 7 presentations, if the Floodway Authority wishes to 8 re-examine any of the participants -- no, I'm 9 wrong, they wouldn't. We will have re-examination 10 of the Floodway Authority by the Environment 11 Commission as more or less the last item of 12 business before we get into the closing 13 statements. 14 We anticipate starting the closing 15 statements on that second day of week three, and 16 continuing through the better part of two and a 17 half days, or the better part of two days, the 18 afternoon of day two, probably all of day three, 19 with some presentations by citizens as noted, or 20 general public as noted on here. 21 Conclusion, Thursday the 3rd of March, 22 conclusion of closing statements by the 23 participants, the Floodway Authority's closing 24 statement, and then I wish you all goodbye. 25 So, that is a fairly detailed 00036 1 schedule, but as I noted earlier, it may have some 2 changes to it. 3 MR. CLIFTON: Mr. Sargeant, I wonder 4 if I can interject and just get an understanding, 5 maybe not from you, but from Cathy. The first 6 schedule that I saw, I saw that the first week was 7 essentially the back and forth on the proponent 8 and the CEC examining. And then I saw that we 9 were going in alphabetical order generally, and I 10 saw Paul Clifton, being "Cl," was first up on 11 Monday morning for four hours, and now I see it is 12 significantly different. And I wonder how that is 13 transpired? 14 THE CHAIRMAN: I'm sorry, I don't 15 know -- perhaps, Cathy, do you know what he is 16 talking about? 17 MS. JOHNSON: I'm not sure what 18 preliminary schedule you are speaking of, because 19 this is the one that's been out to people, there 20 is a few people that I have given them an idea of 21 when they might be presenting, but there was never 22 four hours scheduled for you. You indicated that 23 you needed two and that's what we have tried to 24 work in there. 25 MR. CLIFTON: I will correspond to 00037 1 you -- I have a question in for an extension and I 2 though it said two to four hours. 3 THE CHAIRMAN: If you could deal with 4 Cathy off record, Mr. Clifton, I'm sure we can 5 accommodate you. 6 As far as slotting in the participants 7 to make their presentations, we didn't go 8 alphabetically, we asked what would fit best, we 9 got a number of requests, some groups wanted to 10 present when they were in Oakbank, others 11 specifically wanted to present in Winnipeg. So 12 the order of the presentations by the groups is 13 not alphabetical. The order of closing statements 14 and cross-examination will be alphabetical. 15 Any questions on any of that? 16 MR. STARR: I have a few, Mr. 17 Sargeant. The closing statements, exactly what 18 happens with that? 19 THE CHAIRMAN: Well, basically you can 20 sum up your argument. 21 MR. STARR: Much like a lawyer would? 22 THE CHAIRMAN: Yes, one of the -- a 23 lawyer cross-examines to find information to put 24 into his or her final argument. You have made 25 your presentation but then you will hear other 00038 1 stuff, input from other participants, you will 2 hear stuff from the Floodway Authority, you can 3 work all of that into your final statement. So it 4 can be five or ten minutes, if that's all you 5 want. And before Wuskwatim there were groups that 6 made very short closing statements, there were 7 others that used the full hour. 8 MR. STARR: We had wanted to give you 9 a list of specific recommendations at the end of 10 the hearings. Would that be the time? 11 THE CHAIRMAN: Certainly. I mean, 12 just let me -- if there is surprises it might not 13 be time to bring it in because you might want them 14 to get more discussion, but if they are 15 recommendations based on what has gone on before 16 in the three weeks of hearings, that's certainly 17 the time to do it. 18 Anybody else with any questions about 19 the schedule? 20 A couple of more items on the agenda; 21 you will note item 4 we say legal 22 representation -- all I wanted to note, and we 23 have said this before and it has become pretty 24 clear I'm sure over the last few months, it is 25 absolutely not necessary for you to have legal 00039 1 representation. I know that a number of the 2 groups that will be making presentations do not 3 have legal representation. If you have it, fine, 4 if you don't have it, just as fine. 5 MR. CLIFTON: Sir, will the proponent 6 have legal representation there? 7 THE CHAIRMAN: I assume they will. 8 MR. MCNEIL: Yes, we will, Mr. Chair. 9 MR. CLIFTON: Numbers, how many? 10 MR. MCNEIL: I don't know if that's 11 relevant or not, but it could be two or three 12 individuals. 13 MR. CLIFTON: Representing the 14 Floodway Expansion Authority? 15 MR. MCNEIL: Yes. 16 MR. CLIFTON: And what about the CEC, 17 will the CEC have legal counsel there as well? 18 THE CHAIRMAN: Yes, Mr. Abra will be 19 there most, if not, every day. 20 MR. CLIFTON: Excuse me, in funding 21 applications and that way back when, you related 22 that legal representation wasn't considered in 23 participant funding because we were supposed to be 24 just back and forth. There is a certain amount of 25 intimidation being cross-examined by lawyers when 00040 1 we are not represented or funded with lawyers. 2 THE CHAIRMAN: Well, Mr. Clifton, let 3 me assure you, I set out in the notes that we 4 reviewed a few moments ago that we will not 5 tolerate any intimidating tactics during 6 cross-examination. We will try to keep -- we will 7 vigilantly try to keep the process as friendly as 8 possible. During the -- you mentioned the 9 participant assistance review process, there were 10 comments made by one of the parties that it was 11 not necessary that groups have legal counsel, but 12 the position of the Clean Environment Commission 13 and the panel that ruled on the program of funding 14 certainly was not of that mind. If groups wished 15 to have legal counsel, if they wished to use some 16 of their limited money to engage legal counsel, 17 they are certainly free to do that. 18 MR. WEBSTER: Barrie Webster, panel. 19 I would like to speak from some experience in 20 earlier hearings, and that is that the legal 21 counsel often is a resource rather than a 22 mouthpiece for the organizations presenting, and 23 it is up to the individual presenters and 24 participants to determine how they will use their 25 legal counsel. But we don't want to be 00041 1 intimidated either. So what I'm trying to tell 2 you is that it isn't always an advantage to have 3 legal counsel presenting on your behalf. Perhaps 4 you are in a stronger position if you don't. 5 MR. LOUDFOOT: Quick question 6 concerning the closing statements, does it matter 7 who actually makes the statements? So it could be 8 our consultant if we wish? 9 THE CHAIRMAN: It can be your 10 consultant, it can be any one of your 11 representatives. It doesn't matter who makes it. 12 MR. LOUDFOOT: Thank you. 13 THE CHAIRMAN: Point 5 on the agenda 14 talks about organization representation, and all 15 that means is that we would just like to 16 confirm -- we have a contact address, email, phone 17 number, for each organization -- we just want to 18 make sure it is correct. So if any of you have 19 changed the one contact person for your 20 organization, please let Cathy or Joyce at the 21 back of the room know before you leave tonight. 22 We have told you before that we will only contact 23 one person from each group, so please make sure 24 that we have the correct address or the correct 25 person. 00042 1 That brings us to the end of the 2 agenda, but I'm just going to have a go round and 3 I will entertain any questions of clarification or 4 any questions about our process that you might 5 have. Well, perhaps we can just have a go round 6 the table, and if you don't have any particular 7 questions, just shake your head and we will move 8 on to the next one. Mr. Starr? 9 MR. STARR: Not on the process, but on 10 what has happened today I just wanted to clarify 11 some things. 12 THE CHAIRMAN: Certainly. 13 MR. STARR: Do you want me to ask now? 14 THE CHAIRMAN: Do it right now, 15 please. 16 MR. STARR: It is just, Mr. Sargeant, 17 so we can clear the air, it is only 14 days until 18 the hearings; has anything changed that you know 19 of as a result of the newspaper article and what 20 has gone on? 21 THE CHAIRMAN: Not that I'm aware of. 22 MR. STARR: Because as far as I know, 23 you can certainly hear us at the hearings and 24 listen, as far as I know you can't make any 25 recommendations because all of our problems happen 00043 1 with the existing floodway. 2 THE CHAIRMAN: Well, I'm not sure that 3 we -- and I want to be very careful -- some of you 4 will recall I wasn't very careful last June when 5 we had the first meeting, that was due to some 6 inexperience -- I want to be careful in how I 7 respond to that, Mr. Starr. The mandate before us 8 is relatively broad. The guidelines that were 9 issued by the project administration team talk 10 about the cumulative effects of past, present and 11 known future projects. So within certain 12 parameters, issues that relate to a expanded 13 floodway may address some of your concerns, they 14 may not. We may not be able to offer you the 15 remedy that you are seeking, but we may. 16 MR. STARR: The only other question in 17 regard to that, and maybe Floodway Authority can 18 answer it, is I noticed on the way here at 6:10 19 listening to Mayor Sam Katz live on CJOB, he said 20 all of his concerns had been addressed by MFA 21 today and so he had pulled his protest off the 22 table. And looking at the letter for the first 23 time tonight, if all of his concerns were 24 addressed, the cumulative effects of the existing 25 floodway are in their compensation, we need to 00044 1 know exactly what was addressed? 2 THE CHAIRMAN: Well, I didn't hear 3 that interview. Mr. McNeil, does anybody at that 4 end of the table have a comment to make about 5 this? 6 MR. MCNEIL: I am sorry, Mr. Chair, 7 I'm not aware of that interview either, so I don't 8 know what Mayor Katz had indicated. 9 THE CHAIRMAN: Let me say this, 10 Mr. Starr; not having heard what Mayor Katz had to 11 say, the issues that are identified in the letter 12 from the six municipalities, many of those issues 13 are issues that are properly before this process. 14 They haven't been resolved as far as the Clean 15 Environment Commission process is concerned. That 16 will happen presumably over the three weeks of the 17 hearings. So these aren't off the table. Some of 18 them may or may not be within our scope, and I say 19 may or may not be, I'm not saying they are or are 20 not, but they are not resolved. They are not, you 21 know, we are not going to say, no, we can't deal 22 with these things. 23 MR. STARR: I won't belabour the 24 point, but if I just take one example, 25 compensation, which is also mentioned in here, 00045 1 compensation is addressed as mitigation with the 2 Red River Floodway Act. So if we show you at the 3 hearings that it is not proper and should be 4 looked at, do you have the authority to make 5 recommendations? 6 THE CHAIRMAN: What I would recommend 7 is that you pursue that issue before us. I'm not 8 going to make a decision tonight because I can't 9 make that decision on my own, I'm only one of 10 three. And also it wouldn't be proper to make 11 that decision tonight because we haven't got into 12 the formal hearing process. But you are open to 13 bring up those issues before us, we will consider 14 them, and in our report, if we consider them to be 15 valid, we may well make recommendations on them. 16 MR. STARR: So it would be wise to 17 send you a letter asking for clarification on what 18 you can and can't address? 19 THE CHAIRMAN: I think you should just 20 bring the issues forward during the hearing, 21 Mr. Starr. That would be the proper forum. 22 MR. WEBSTER: I would just like to 23 make the observation that it is quite common in 24 the reports from the Commission to make not only 25 recommendations, which is what you are referring 00046 1 to, but also things that are observations or 2 further comments that relate to issues that aren't 3 perhaps strictly within the scope of what the 4 hearing is supposed to be about, things that we 5 have heard and things that we need to be known 6 about, and I think it is important that you 7 realize that as you make your presentation. 8 THE CHAIRMAN: Any comments? 9 Mr. Strang? 10 MR. STRANG: Yes, I just have one 11 question and perhaps Doug can answer this. From 12 the letter that was sent out to the City of 13 Winnipeg, City of Selkirk and the municipalities, 14 is that letter any different than what the City of 15 Winnipeg received? 16 MR. MCNEIL: If you are talking about 17 Mr. Gilroy's response and letter to the chair this 18 afternoon, all of the signatories to the original 19 letter from the Mayors and Reeves received the 20 same letter, yes. 21 MR. STRANG: Thank you. 22 MR. CHORNEY: Doug Chorney here. This 23 is my first Clean Environment Commission process 24 to go through, and it is hard to keep your 25 enthusiasm going when you read editorials in the 00047 1 Free Press from the proponent telling us not only 2 how great this project is, when it will start, and 3 all of the benefits that will ensue from that -- I 4 guess we had all of the municipal governments, 5 including the one that's to be protected, come 6 together against this process. We heard in the 7 media that in fact the process would go ahead 8 irregardless. I'm wondering if this process is 9 about granting the environmental license or is it 10 just to impose conditions on the license which 11 will be granted irregardless of this process? 12 THE CHAIRMAN: No, it won't be granted 13 regardless of process. It is open to us to 14 recommend to the Minister not to issue the 15 license. If a compelling case is made before us, 16 or if we find that there are huge flaws in the 17 Environmental Impact Statement prepared by the 18 proponent, it is open to us to make that 19 recommendation to the Minister. 20 MR. CLIFTON: Yes, I wonder if you 21 would just help me out here. I would understand 22 that these groups were potentially going to put a 23 motion before you to delay or postpone, and now 24 that is potentially off the table? And where is 25 motions right now, as far as the opportunity to 00048 1 make a motion that this whole undertaking is just 2 a charade and it is a continuation of what we have 3 seen for eons, since almost May 1st, 1997? 4 THE CHAIRMAN: Mr. Clifton, you did 5 arrive late, unfortunately, but I think it was 6 probably before you arrived I discussed the letter 7 from the municipalities and my response, and I 8 noted that it is open to the municipalities to 9 make a motion. I have asked them to do that by a 10 week today so that all parties, if they do go that 11 route, so that all parties will have a week to 12 prepare. And on the first day of the hearings, if 13 we are dealing with a motion from those 14 municipalities, we will hear argument from the 15 municipalities, from any of the participating 16 groups that wish to comment on it, and then 17 response from the Floodway Authority. And the 18 three members of the panel will make a decision in 19 respect of that motion. 20 MR. CLIFTON: Okay. I wonder if you 21 can help me out on another issue then. There has 22 been a lot of study happen, and I have made 23 representations to many, many hearings, and one of 24 the most unfortunate things that I can think of is 25 the Manitoba Water Commission transcripts, or 00049 1 taped transcripts -- pardon me, tapes, before 2 transcripts were made, were inadvertently 3 destroyed. And very interestingly, Barry Tuckett 4 had recommended that archival records might be 5 over time as important as the contemporary daily 6 records. And I find that in my representations to 7 the proponent, the Floodway Expansion Authority, 8 that folks there tend to answer questions in that 9 they don't have it. I see the Floodway Expansion 10 Authority as Manitoba and not just some nebulous 11 entity out to decide here. And I wonder what 12 authority do you have to chase these folks to get 13 known records and known documentation that maybe 14 the Floodway Expansion Authority doesn't have in 15 hand, but it certainly is in the privy of the 16 Provincial Government. 17 And as one example, like the Ernst & 18 Young report, and I wonder -- Ernst & Young 19 initially did a study of how EMO did during the 20 flood, up to the flood emergency, and subsequently 21 they were tasked to do number 2 of the study. And 22 that study was to be how they did post flood. We 23 all know they did terribly. But anyway, it was my 24 understanding that Ernst & Young was contracted by 25 the Manitoba Government, Mr. Doer's Government, 00050 1 and they undertook a study of the post 2 amalgamation that was undertaken by Filman of EMO 3 and the Disaster Financial Assistance Board. And 4 we have made application for that particular 5 document because it talks specifically of how the 6 Government of Manitoba, not necessarily the 7 Floodway Expansion Authority, but how the 8 Government of Manitoba undertake and administer 9 flood compensation, and to try and weight it to 10 how well you did last time to give some sort of 11 semblance of what it is going to be like next 12 time -- and sir, it was poor. I hear from the 13 Floodway Expansion Authority that they don't have 14 it, but it is in the realm of the Government of 15 Manitoba. 16 And to tie it all together, the former 17 Deputy Minister of Water Stewardship has just 18 retired. The new Deputy Minister is Gerry Berezuk 19 I think it is, he has now moved over from Highways 20 and Government Services over to Water Stewardship. 21 So the very man that had this report in his office 22 and allowed the ombudsman's office to come in and 23 sequestered the two investigative officers in this 24 room to look at this report, and the report 25 exists, and its appendices exist -- 00051 1 THE CHAIRMAN: Get to your point, 2 please. 3 MR. CLIFTON: My point is, these 4 people are saying that we don't have the records 5 and essentially the records don't exist. I'm 6 asking you, what authority do you have to have the 7 proponent, be it the Floodway Expansion Authority 8 or the Manitoba Government, to produce known 9 records for examination? 10 THE CHAIRMAN: I have no authority to 11 order any department of Government to release 12 records. I would probably have -- I would 13 probably have no more authority than you. I would 14 have to go through the Freedom of Information 15 process that you follow. 16 MR. CLIFTON: That's not correct, sir. 17 If you look at section 6 of your enabling 18 legislation, you have the right, as a judge has a 19 right, to order the provision of records. 20 THE CHAIRMAN: You are correct up to a 21 point, Mr. Clifton. We do have the authority to 22 compel any information that's relevant to the 23 issue before us, as long as it exists. We can't 24 compel any party to create reports or information 25 that don't exist, and we have no authority to 00052 1 compel any information that is not relevant to the 2 hearing before us. If you have -- if you can 3 identify documents that are relevant to us, then 4 you should bring it to our attention and we will 5 see what we can do about having them made 6 available, if they exist. 7 MR. CLIFTON: Good Lord, sir, I'm 8 having some real difficulty here in that we have 9 had an interrogatory process, and in the 10 interrogatory process there was the opportunity 11 for the public to ask questions to try and set 12 some stuff aside before we get into the hearing 13 process. And these sorts of things were asked for 14 and they haven't been forthcoming. The records 15 all the way up to and including water resources at 16 the executive level, and I dare say even the clerk 17 of the executive council, that's how high the 18 level of sheltering goes, sir. I just need to 19 clarify, you can get the records? 20 THE CHAIRMAN: If you provide a list, 21 and if you can convince us that they are relevant 22 to the process before us, we will make an effort 23 to get them. I can't guarantee that they will be 24 released. 25 MR. CLIFTON: Would you suggest that 00053 1 happens before the hearing start, or at the 2 hearings? 3 THE CHAIRMAN: No, you should do that 4 before the hearings start. 5 MR. CLIFTON: All right. 6 THE CHAIRMAN: Mr. Frank, any comment? 7 Ms. Gaile Whelan Enns? 8 MS. WHELAN ENNS: Yes, thank you. 9 There is a two location plan for this proceedings, 10 for the hearings, and I have been sort of trying 11 to sort out with those two locations, when the 12 proponent does not present in both locations, what 13 your expectation is of the participants and people 14 attending, assisting, supporting, and expert 15 witnesses and so on, so that their own 16 participation, their cross-examination, their 17 presentation, their closing statements avoid the 18 concern about repetition. Another way of stating 19 that is, how then will all of the parties and 20 participants know whether they are stumbling into 21 repetition? 22 THE CHAIRMAN: Ms. Whelan Enns, you 23 mentioned earlier how important it is to review 24 the transcripts before you go into the day's 25 hearings, so I would suggest that's one way. I 00054 1 would also, I would say to you that we will 2 certainly be reasonable in allowing some 3 repetition. Egregious and continued repetition we 4 won't allow, but if it is somebody who has not sat 5 in at a meeting in Winnipeg and wants to bring up 6 an issue in Oakbank, we are certainly not going to 7 shut them down. 8 MS. WHELAN ENNS: Thank you, it is 9 just a matter of clarification, because there is 10 that difference. In the past CEC hearings that 11 were held in more than one venue involved the 12 proponents in fact presenting their full statement 13 and presentation in both venues. I think it is 14 manageable but I thought it was worth asking. 15 If I may, I wanted to make one other 16 statement or query, I guess it is sort of 17 rhetorical. We are all of us a party to the 18 floodway, we live where we live, we are all in the 19 flood plain, and we are in a situation where the 20 floodway exists and we are talking about expanding 21 it. So to go to a couple of the questions 22 earlier, we are also in a situation where 23 currently no environmental license is in place for 24 the existing floodway. So, I suppose my question, 25 given that the outcome of this undertaking and 00055 1 proceeding is potentially an environmental license 2 for the existing and expanded, or the entire 3 floodway, I basically want to ask whether it is a 4 fair assumption, and I think the fairness has been 5 there in your comments this evening, a fair 6 assumption then that effects from the current 7 project are in fact relevant in this proceeding? 8 THE CHAIRMAN: Those are issues that 9 should properly be dealt with before the hearings 10 proper, not at a pre-hearing meeting, those are 11 substantive issues that one would expect would be 12 before us. 13 MS. WHELAN ENNS: Thank you. 14 MR. CLIFTON: Can you say that again, 15 Mr. Sargeant, you said -- 16 THE CHAIRMAN: I said that those are 17 issues that should properly be before us during 18 the hearings, not at a pre-hearing session. Ms. 19 Whelan Enns was talking about substantive issues 20 in relation to the Environmental Impact Statement. 21 We are not here tonight to deal with substantive 22 issues. Mr. Buhler. 23 MR. BUHLER: No, thanks. 24 THE CHAIRMAN: Anybody from the 25 Department of Conservation? 00056 1 Okay. Unless there are any more 2 compelling questions, I would bring this meeting 3 to a conclusion. I want to thank you all again 4 for coming out here tonight. I look forward to 5 seeing most of you -- well, certainly all of you 6 over the three weeks starting February 14th, and 7 most of you I anticipate on the 14th of February 8 just down the street. Good night all. 9 10 (ADJOURNED AT 8:15 P.M.) 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 00057 1 OFFICIAL EXAMINER'S CERTIFICATE 2 3 4 5 I, CECELIA REID, a duly appointed Official 6 Examiner in the Province of Manitoba, do hereby 7 certify the foregoing 57 pages are a true and 8 correct transcript of my Stenotype notes as taken 9 by me at the time and place hereinbefore stated. 10 11 12 13 ---------------------------- 14 Cecelia Reid 15 Official Examiner, Q.B. 16 17 18 19 20 21 22 23 24 25