00001 1 MANITOBA CLEAN ENVIRONMENT COMMISSION 2 PRE-HEARING CONFERENCE 3 4 5 6 RED RIVER FLOODWAY EXPANSION PROJECT 7 8 9 10 * * * * * * * * * * * * * * * * * * * * THURSDAY, OCTOBER 14, 2004 11 WINNIPEG CONVENTION CENTRE, 12 375 YORK AVENUE, WINNIPEG 13 * * * * * * * * * * * * * * * * * * * * 14 15 CLEAN ENVIRONMENT COMMISSION: 16 Terry Sargeant Chairman 17 Barrie Webster Member 18 Wayne Motheral Member 19 20 21 22 23 24 25 00002 1 OCTOBER 14, 2004 2004 2 UPON COMMENCING AT 7:00 P.M. 3 4 THE CHAIRMAN: Our first order of 5 business, this is a cell phone free zone, so 6 please turn off your cell phones, or at the very 7 least turn off the ringer. If you must take a 8 call, please take it out of the room. 9 For those of you who don't know, my 10 name is Terry Sergeant, I am the chair of the 11 Clean Environment Commission, I am also the chair 12 of this panel that will be reviewing the proposal 13 of the Manitoba Floodway Expansion Authority. 14 I would like to introduce the other 15 people that are part of the Clean Environment 16 Commission group. The other two commissioners who 17 have been appointed so far to this panel are to my 18 left, Barrie Webster, and two down from me, Wayne 19 Motheral. Barrie is from Winnipeg, Wayne is from 20 Morden. 21 I anticipate appointing one more 22 person to the panel so that we will have a four 23 person panel. That person has not yet been 24 selected. 25 Also with our group is Doug Abra, who 00003 1 will be legal counsel to the hearing panel. Two 2 down to my left is Harold Westall, who is one of 3 the consultants who will be working with the 4 panel. Harold will be specializing in the area, 5 or advising us in the area of socio-economic and 6 some environmental issues. Further down is Joyce 7 Mueller, who is the administrative secretary at 8 the Clean Environment Commission. 9 I would like to have a quick go round 10 of introductions. If we could start with Jim. 11 MR. THOMSON: Jim Thomson, vice 12 president of transportation with the Floodway 13 Authority. 14 MR. MCNEIL: Doug McNeil, vice 15 president of hydraulics with the Floodway 16 Authority. 17 MR. PETERSON: Doug Peterson, manager 18 of environmental services with the Floodway 19 Authority. 20 MR. NORBERG: Jerry Norberg, treasurer 21 of 768 Association. 22 MR. HOUSTON: Barrie Houston, the 23 president of the 768 Association. 24 MR. LOUDFOOT: Rob Loudfoot, executive 25 member of the 768 Association. 00004 1 MR. HOLLAND: John Holland, Reeve of 2 the RM of Springfield. On my right is Reeve Phil 3 Rebeck of the RM of East St. Paul, and on my left 4 Reeve Steve Strang of the RM of St. Clements. 5 MS. HENDRICKSON: Lorna Hendrickson 6 with Rivers West. 7 MR. STEPHENSON: John Stephenson, the 8 consultant for the conservation district and the 9 local committee. 10 MR. BUHLER: Jake Buhler, the 11 consultant for the conservation district and the 12 local committee. 13 MR. STEVENSON: Earl Stevenson, Peguis 14 First Nations. 15 MR. MCLUHAN: Kerry McLuhan, Coalition 16 for Flood Protection North of the Floodway. 17 MR. CHORNEY: Doug Chorney, Coalition 18 for Flood Protection North. 19 MR. JONASSON: Jack Jonasson, 20 Coalition for Flood Protection North of the 21 Floodway. 22 MS. CLIFTON: Maxine Clifton from 23 Richot Concerned Citizens. 24 MR. STARR: Bob Starr, Chair of Richot 25 Concerned Citizens Committee. 00005 1 MR. BENOIT: Dan Benoit from the 2 Manitoba Metis Federation. 3 MR. STRACHAN: Larry Strachan, I am 4 chair of the project administration team for the 5 cooperative environmental assessment for the 6 floodway expansion proposal. 7 MR. WEBB: And I'm Bruce Webb with the 8 Environmental Approvals Branch. 9 MR. TESSIER: Gerry Tessier with the 10 Canadian Environmental Assessment Agency. 11 THE CHAIRMAN: Thank you. 12 I assume you all have a package of 13 material in front of you. We will essentially go 14 through all of this material. We will make some 15 comments -- we will go through this material over 16 the course of the next hour or two. I had said we 17 won't do it in detail, but I will introduce it and 18 make some comments on it. The purpose of 19 tonight's meeting is really to deal with a lot of 20 housekeeping matters, a lot of procedural matters 21 to introduce you to some of our procedural, some 22 of our process guidelines, to discuss a 23 recommended timetable for the events between now 24 and the start of the hearings, to discuss what we 25 call an interrogatory or an information request, 00006 1 or request and answer process that will begin 2 immediately after tonight. 3 So let me first, let me start dealing 4 at point number 3, which is the Floodway Expansion 5 Project pre-hearing process. And there will be a 6 number of things taking place between now and the 7 start of the hearings. A lot of that won't -- 8 most of that won't take place in meetings such as 9 this. We probably will have one more meeting that 10 would involve not necessarily even all of us, but 11 some of us, before the start of the hearings. And 12 I will come to that in a moment, to that possible 13 other meeting. 14 You will see under item 3 the word 15 "interrogatory." It is really a legal term for 16 asking questions of the proponent and expecting an 17 answer back from them. And the purpose of this 18 information request process, or interrogatory 19 process, is to allow the panel and participants, 20 and that's basically all of you except the people 21 behind the floodway signs, to propose questions to 22 the proponent in respect of the environmental 23 impact statement and the other technical documents 24 that they have filed. 25 The questions obviously must be 00007 1 relevant to the EIS review. It is open to the 2 proponent to dismiss a question as being 3 irrelevant. If they feel it is not relevant to 4 the matter before us, they can simply write that 5 on the sheet of paper and send it back saying, we 6 have chosen not to answer this question because it 7 is not relevant. If whoever asked that question, 8 if you ask a question that is determined to be 9 irrelevant, it is open to you to bring it up again 10 during the hearings and ask for the panel to 11 determine or rule on its relevancy. And if the 12 panel decides it is relevant, then the proponent 13 will be expected to answer it at that point. 14 The same things applies if you ask a 15 question and you feel it hasn't been sufficiently 16 answered by the proponent, you may bring it up 17 either at the motions hearing, which I will 18 describe in a moment or two, or you may bring it 19 up again at the hearing and seek further answer. 20 However, one thing that's quite 21 important and I would like you to all remember is 22 that if the question has been answered fully by 23 the proponent, then it is not to be asked again 24 during the hearings. If it has been asked and 25 answered, it should not be asked again at the 00008 1 hearings. And at the hearings it is again open to 2 the proponent to simply say that this question has 3 been asked and answered. 4 I mentioned -- sort of the next item 5 under item 3 is motions or motion hearing -- I 6 mentioned that we might have one more meeting 7 before the start of the hearing process. That 8 meeting would come at the end of the process when 9 the questions have been asked and answered. And 10 if you feel that a question has not been answered 11 properly, or has not been answered at all and 12 should have been, you can come to the motions 13 hearing and make a pitch to the panel at that 14 time, and ask us to direct the proponent to answer 15 the question. 16 The next item under -- are there any 17 questions on any of this? Please, if you don't 18 understand what I'm talking about, please jump in 19 right now, because we probably won't get another 20 chance to explain it. Maxine? 21 MS. CLIFTON: Are these minutes taken 22 tonight verbatim? 23 THE CHAIRMAN: Yes, I should have 24 mentioned that right at the outset, it is actually 25 somewhat late in the process, but we are recording 00009 1 tonight's meeting. It will be available soon. It 2 will be available Monday online at 3 reidreporting.com, and you can print it off. 4 Dan. 5 MR. BENOIT: Who determines the 6 adequacy of the question answered? 7 THE CHAIRMAN: Well, it is up to you, 8 if you feel it hasn't been sufficiently answered, 9 then you can bring it to the motions hearing -- 10 you were through the process on Wuskwatim -- and 11 request at that time that the panel agree with you 12 that it hasn't been. So it would be the panel 13 that would determine whether or not, or would 14 agree with you whether or not it had been 15 adequately answered. 16 Jack, did you have a question or was 17 it the same as Maxine's? 18 The next item on the agenda is filing 19 of submissions, and we will come to that in a 20 little bit more -- I think under item 5 there are 21 a number of things that I wanted to discuss at 22 that point, and that will be included under some 23 discussion on our procedural guidelines. 24 At this point then I would like to 25 turn to item number 4, and ask the Floodway 00010 1 Authority to present the timetable, or the 2 proposed timetable. All of you should have 3 received copies of it in the mail -- or pardon me, 4 I think by e-mail or fax on Friday. As well it is 5 included in the kit that you have received 6 tonight. So I would ask the Floodway Authority to 7 present this, and then we will throw it open to 8 questions or comments from any of you. 9 MR. MCNEIL: Thank you, Mr. Chair. I 10 guess what would I like to do is -- I won't go 11 through our letter point by point -- what I would 12 like to address is the schedule, in general terms 13 what is in front of you, but also why we picked 14 some of the dates that we did, both at the 15 beginning and the end of the schedule that's 16 before you. 17 Let me first address the importance of 18 the project. Winnipeg is at an extremely 19 unacceptable level of flood risk. It has been 20 determined that the average annual damages for a 21 flood bigger than 1997 is 50 to $75 million a 22 year. We know that it is not a question of if 23 there will be a flood bigger than 1997 that will 24 cause those damages, but when. 1826 was 25 40 percent bigger and it would cause in order 00011 1 towards 8 to $10 billion damages if it was to 2 occur today. 3 Our schedule is predicated on us 4 trying to complete this project as reasonably as 5 possible, with construction methods that are 6 available to us today. And so it is government 7 and MFEA's objective to complete the floodway 8 expansion project by March of 2009, to be prepared 9 for a flood if one should occur that year. 10 When we work backwards from that date, 11 we need four good construction years, specifically 12 summer construction to complete the excavation of 13 the project, but also for the bridges and the 14 other structures that are at both ends of the 15 project and cross the project, we need a four-year 16 schedule. And we have built into that schedule as 17 well the expectation that the floodway will be 18 used probably two of those four springs. On 19 average the floodway is now used two out of every 20 three summers. So we lose time in the spring for 21 construction, and there could be inclement 22 weather, as we have had this year almost right up 23 until now, that would also harm our schedule. So 24 the four years is quite important. 25 We have scheduled -- and this is with 00012 1 the project administration team's input. If you 2 look at the first shorter schedule -- rather it is 3 on the shorter piece of paper -- a schedule that 4 indicates that we will get decisions on the 5 environmental approvals from both levels of 6 Government by July 11. And even that, starting 7 that late in 2005 for construction, is putting us 8 under the gun, so to speak, to complete by March 9 of 2009. However that was worked out to be a 10 reasonable schedule. In fact, the other schedule 11 that we have put forward, Mr. Chair -- 12 MS. CLIFTON: I am sorry, July 11th, 13 which year, Doug? 14 MR. MCNEIL: 2005, we would like to be 15 under construction in July of 2005, and work four 16 years solid, and have the project ready for the 17 spring event of 2009, whatever that may be. 18 The schedule that we worked on with 19 PAT was based on, I guess normal practices for and 20 time lines for the items that you see before you 21 on this particular schedule here. And then the 22 schedule that Mr. Sergeant had asked for works 23 into that schedule. So when you look at the CEC 24 public hearings, item 15 on the schedule that we 25 submitted to Mr. Sergeant, that fits right in with 00013 1 the public hearings that were identified on the 2 schedule worked out with the PAT. 3 Let's talk about how we got to this 4 point here. I guess we want to identify that 5 we've had an extensive public consultation process 6 since January of this year. We had three rounds 7 of public meetings in several communities from 8 January to June. In the third round, which 9 occurred in June, we provided the initial findings 10 of the EIS, and there were no surprises then when 11 we submitted our EIS on August 4 of 2004. 12 In addition to all of the public 13 meeting we had, we had semi-private meetings, we 14 had semi-private meetings with all of the 15 surrounding municipalities and the City of 16 Winnipeg councils. We also had several what we 17 called lunch hour meetings with special interest 18 groups, a lot of them represented here today. 19 So we believe that we have had an 20 extensive public meeting process up to this point. 21 And the reason I bring that up is that we think 22 that the schedule that we put forward then is 23 reasonable, given that we have already had an 24 extensive public consultation process. 25 The fourth round that I haven't 00014 1 mentioned yet actually was set to coincide with 2 the EIS review period. That review period, or 3 rather the EIS itself was advertised on 4 August 7th, and that review period was set at 60 5 days, which was more than usual, it could have 6 been 30, but it was 60 days. And I think partly 7 in recognition that the EIS was submitted mid 8 summer and a lot of people were on vacation and 9 whatnot. But it was 60 days and it ended on 10 October 12, earlier this week. And our fourth 11 round of public consultation was in the midst of 12 that 60 day review period to help people navigate 13 their way through the EIS. 14 I just want to talk for a little bit 15 longer about this process itself. Mr. Chair, we 16 see that most of the steps in this process are 17 standard steps, and some of them aren't 18 necessarily required for the full period, item 6, 19 30 days we have listed there if required, we think 20 that's generous and it could easily be compressed. 21 These steps are all critical to that 22 longer term objective of getting the approvals by 23 July, and constructing the project and having it 24 ready for operation by March of 2009. 25 I would just like to say that we think 00015 1 that items 7, 8 and 11, that is the CEC questions, 2 the participant questions, and the MFEA response 3 to those questions, those have been requested by 4 the CEC to be interjected into this process. We 5 believe it is over and above the standard process, 6 and doesn't necessarily -- is not necessarily 7 required in the Act, but we are here to cooperate 8 as much as possible as long as this schedule isn't 9 compromised as a result of it. 10 And with that I will finish. Thank 11 you. 12 THE CHAIRMAN: Thank you. Just in 13 respect of your last comment, the Act does allow 14 us to set whatever process we wish, and procedures 15 we wish. So we found in the most recent major set 16 of hearings that we had, the Wuskwatim process, 17 that the information requests or interrogatory 18 process was extremely helpful, particularly to our 19 consultants, that we would not have been able to 20 prepare our case without that process. 21 I would just like to bring to 22 everybody's attention, Doug has just given us sort 23 of an overview of this, but I would like to point 24 out three specific dates in this material that 25 Doug has presented to us, and ask for any 00016 1 comments, if any, around the table. And those 2 three dates are, in number 7, November 22nd. 3 That's the date that the Floodway Expansion 4 Authority has proposed as the cut-off date for 5 submitting information requests. That's about 6 five, five and a half weeks from now. 7 The second date is December 13th, 8 which is the date that the Floodway Authority, or 9 Expansion Authority has said that they can have 10 those questions answered and the responses 11 returned to you and to this panel. 12 Then the third key date that I would 13 like to put out for consideration is number 15, 14 and that's that the Public Expansion Authority 15 proposes that the hearings commence on January 18, 16 2005. So that's about three months from now. 17 Are there any comments in respect of 18 any of those dates? Will any of those dates 19 pose -- well, did they raise concerns or flags for 20 any of you? Jack? 21 MR. JONASSON: The question is, how 22 come the Floodway Authority is developing the 23 timetable for the CEC? I don't know how -- 24 THE CHAIRMAN: We asked them to do 25 that, to present a proposed timetable. This is 00017 1 not necessarily our timetable, that's why it is 2 here to be discussed tonight. We asked them to 3 present a timetable, to draft one that would work 4 for them. We will consider it tonight, with all 5 of you present, and we will come up with 6 something. We will propose the final timetable 7 after. It may look very similar to this, it may 8 be somewhat different. 9 MR. JONASSON: A supplemental 10 question -- given that it took in excess of a year 11 and $9.2 million to prepare this EIS, those of us 12 responding to it are being expected to deal with 13 this over a period of four months, and have 14 presentations ready for the CEC. I quite frankly 15 think that's absolutely ridiculous, period. 16 THE CHAIRMAN: Thank you. Maxine or 17 Bob? 18 MR. STARR: I was just wondering, your 19 technical committee, do you know the date when 20 they will be assembled? That is the only thing 21 that will affect us. 22 THE CHAIRMAN: In fact, Dave Farlinger 23 flew to Calgary today to meet with two or three of 24 them, which is basically the bulk of the 25 committee. So they will be assembled imminently. 00018 1 MR. STARR: Our only worry would be if 2 they get swamped with questions, can they handle 3 it? 4 THE CHAIRMAN: If MFEA gets swamped 5 with questions? 6 MR. STARR: No, the technical 7 committee reporting to you? 8 THE CHAIRMAN: We feel that they can. 9 We don't think that there is going to be a 10 swamping of questions, but we feel that there will 11 probably be a commonality of a lot of the 12 questions. I suspect that a lot of the issues you 13 might ask of this technical committee, we will 14 also be asking of the technical committee. So I 15 don't think that will be a major concern. Maxine? 16 MS. CLIFTON: Mr. Sergeant, as you no 17 doubt are aware, the average amount of time that 18 it has taken us to secure information from the 19 Province with which to formulate our presentation 20 and questions has been two and a half years. Some 21 of the information is still out there and may even 22 require court action to secure. Are you allowing 23 for the time it takes to get information? Is that 24 going to be built into the timetable? 25 THE CHAIRMAN: First let me put in a 00019 1 little bit of business here. When you speak to 2 the mike, could you please identify yourself so 3 the court reporter -- she doesn't know any of you 4 yet, during the hearing she will come to know most 5 of us, if not all of you -- so just say your name 6 and she will be able to record it when she prints 7 out the transcripts. 8 MS. CLIFTON: Maxine Clifton from 9 Richot Concerned Citizens. 10 THE CHAIRMAN: Thank you, Maxine. 11 Could you explain a little bit about 12 what you mean by the information that you are 13 seeking? 14 MS. CLIFTON: We are seeking 15 information, for example, on how the mitigation -- 16 it was handled in '97, there was a report 17 generated, quoted from in the press, and has since 18 been denied to us. And that's about a three-year 19 old request. We are seeking information on 20 decisions that were made and how they were made, 21 what information was used to make decisions in 22 '97. That information has been denied to us. We 23 have been seeking information on what information 24 certain decisions regarding the new operating 25 rules were based on, and that information is still 00020 1 denied to us. I could go on and on, but we are 2 looking at a long process and there is a long list 3 of information that we still require. 4 THE CHAIRMAN: The advice that I would 5 offer on that is that if it is relevant to our 6 consideration, if it is relevant to the mandate 7 that we have before us, then I think you should 8 pose those in information requests to the 9 proponent. 10 Dan. 11 MR. BENOIT: Dan Benoit. I may have 12 some concerns about this on two levels, some of 13 the proposed dates. The MMF and MFEA earlier, in 14 the late summer I guess, got together to discuss 15 consultations with the Metis through the Metis 16 Federation. And we have been kicking around some 17 ideas on how we might go about doing that. And we 18 were told at that time that because the Floodway 19 Authority, or the Minister, or whoever, had not 20 set aside money for Aboriginal consultations, that 21 there would only be a per -- a certain amount of 22 money available in order to conduct those 23 consultations. 24 Since that time President Chartrand 25 has met with Ernie Gilroy and expressed his 00021 1 concerns that in order to do this properly it 2 would require more than what was being offered on 3 the table I guess. 4 My concern is this; are we headed down 5 another Wuskwatim road here when it comes to the 6 Metis? Because we know from not just gut 7 instinct, but what our people are telling us, that 8 they will be affected, their harvesting rights 9 will be affected. Because even though this is 10 taken up Crown or private land, Aboriginal rights 11 still sit there over top there, with permission. 12 And a lot of people have land along the rivers, 13 and a lot of people still use the river banks in 14 those areas to harvest in, and yet we haven't been 15 able to get to our people to discuss with the 16 Metis exactly what they think those changes or 17 effects might be. 18 So when I see in the schedule here 19 where we are expected to come up with the 20 questions by November, we are kind of at a loss 21 because there is very little, understandably there 22 is very little Metis or Aboriginal component in 23 the EIS. Because it was our understanding in 24 discussing with Doug Peterson and others, and we 25 did have one of those lunch meetings with the 00022 1 Authority, that some of these things would be 2 brought into the process, and we would figure out 3 all of the questions and answers and get to our 4 people that way. And yet because of a lack of 5 funding, it appears that we might be going down an 6 adversarial road where those questions are going 7 to be answered -- or asked in this process. And I 8 think we are going to be at the same place that we 9 were with Wuskwatim, where there was very few 10 answers because they just don't know. So that 11 would be my concern with this so far. 12 The second thing is, tied with that is 13 what we call once again section 35 consultations, 14 but which I know this panel believes that it has 15 nothing to do with. But we still say that good 16 government and good decision making has to be 17 based on facts of what the effects will be on 18 Aboriginal people, including the Metis. And the 19 Minister can't have section 35 consultations 20 without having that data before them. So if we 21 don't fix this sooner than later, I think we might 22 have problems down the line. Thank you. 23 THE CHAIRMAN: Thanks for those 24 comments, Dan. The only comment that I would make 25 on that at this point is that we believe we don't 00023 1 have the authority to rule on the section 35 2 consultation process. We believe that that's 3 beyond our jurisdiction. And that was a 4 decision -- or at least I shouldn't speak for this 5 panel in that regard -- that was the feeling of, 6 or the conclusion of the Wuskwatim panel, that it 7 was beyond our jurisdiction. But you will know 8 that the Wuskwatim panel was still nonetheless 9 sympathetic to your issue. 10 MR. BENOIT: Understood. But I guess 11 I can say President Chartrand is still maintaining 12 that once the Minister's decision comes down, it 13 will be judicially reviewed, or we will take 14 action against it, which may offer some guidance 15 to the CEC hearing, because I'm sure the process 16 here will be brought into it, on whether or not 17 the decision that was made by the CEC was right or 18 not. 19 THE CHAIRMAN: Thank you. Any other 20 comments in respect of the timetables? 21 MR. HOLLAND: John Holland, Reeve of 22 the RM of Springfield. I want to address an issue 23 that is raised in paragraph 13 which suggests that 24 the participant submissions are expected to start 25 after December 13, 2004, and they must be filed 00024 1 with the Commission prior to the public hearing 2 date, at least by January 4th, 2004. Now, that's 3 a period of time that takes in the Christmas 4 holiday season, and I think that we are 5 anticipating that we will likely need some 6 professional assistance in preparing that 7 submission. That seems to be a particularly short 8 time. I know that Mr. McNeil has been eloquent in 9 stressing the urgency of this project in terms of 10 the need for flood protection for the City of 11 Winnipeg. One of our significant concerns will be 12 the impact on ground water resources, particularly 13 in the Birds Hill aquifer, which will have 14 tremendously long term impact, if there is in fact 15 an impact. And I think it is somewhat onerous to 16 be squeezed into that short of period of time to 17 complete our submission at that time of year. 18 THE CHAIRMAN: Thank you, Mr. Holland. 19 I will just comment that the process guidelines, 20 which I will address a little later in the agenda, 21 note that, or have a requirement that submissions 22 be presented two weeks prior to the time that they 23 are going to be used. Not even necessarily the 24 start of the hearings, but if you are going to 25 make your presentation a week into the hearings, 00025 1 then that would be a week before the start of the 2 hearings. We are quite cognizant and sympathetic 3 of the fact that Christmas is falling right in the 4 middle of this process, and that will be taken 5 into consideration when we develop a final 6 timetable. 7 Any other comments? 8 MR. STEVENSON: Earl Stevenson, Peguis 9 First Nation. Looking at the schedule, I will 10 have to concur with other people around the table 11 where the schedule is ambitious, but it is 12 compressed quite a bit and it is going to create a 13 lot of pressure on our organization in terms of 14 try to adequately respond to the comments and to 15 the EIS, and in addition for us to try and provide 16 supplementary commentary on the EIS. 17 That being said, I have to point out 18 the fact that the Peguis First Nation and members 19 therein, we are not a special interest group, we 20 are rights holders, we have Treaty rights, 21 inherent rights, Aboriginal rights, rights that 22 fall under Human Rights legislation and other 23 international covenants. It is imperative -- and 24 I am a bit concerned with the fact that the CEC is 25 not going to be considering section 35 rights. 00026 1 And I think that's -- that may be, I guess the 2 MFEA and the CEC in respect are agents of the 3 Crown, and there is certain Crown fiduciary 4 responsibilities vis a vis the protection of our 5 rights. So I am a bit concerned when we get 6 engaged in a process such as this, where we are 7 not adequately consulted, and we are not provided 8 adequate time to prepare a statement in terms of 9 trying to uphold and preserve and protect our 10 rights. It is a bit concerning for me when we 11 have to engage in such a compressed time span. So 12 I have to just voice that concern with regards to 13 the schedule. 14 THE CHAIRMAN: Can I just clarify one 15 point? I misspoke a little bit. When I said that 16 we didn't consider section 35 rights, I wasn't 17 correct, that wasn't a correct statement. What I 18 meant to say, and what became an issue during the 19 Wuskwatim hearings, was whether or not the Clean 20 Environment Commission panel was the proper panel 21 to conduct the section 35 consultation process 22 that is required. 23 And we heard legal argument, we heard 24 legal argument on both sides, we heard legal 25 argument from the Provincial Crown that we were 00027 1 not the body to do that, and ultimately we 2 accepted that we were not the body to engage or 3 even to judge on the section 35 consultation 4 process. But as far as, if section 35 rights 5 become an issue through the review of the EIS, 6 then that is certainly within our purview to 7 consider it, not to offer remedies, but certainly 8 to take it into consideration. 9 MR. STEVENSON: I think that's all we 10 are asking for is to ensure that there is respect 11 for section 35. 12 THE CHAIRMAN: Absolutely. 13 MR. STEVENSON: We are not asking for 14 anybody to judge on our rights either, just the 15 fact that they exist and they be respected. 16 THE CHAIRMAN: There is no question 17 about it. Jack. 18 MR. JONASSON: You mentioned with 19 respect to some questions that they would be 20 answered subject to their being germane to your 21 mandate. I guess what we would need to do then is 22 to be informed very clearly as to what your 23 mandate is. At your first meeting with us, you 24 gave us some ideas as to what you would be looking 25 at and what you wouldn't. But we are still not 00028 1 clear. 2 There is the issue of what is the 3 baseline for this environmental impact statement. 4 The concern that we have is that the baseline 5 seems to be, as far as the EIS is concerned, is 6 the existing floodway. The existing floodway was 7 never subject to an environmental review. We 8 think, we believe very strongly that the baseline 9 is pre-floodway. 10 Would you clarify that for us, and 11 how -- where your mandate is and where your 12 baseline is? 13 THE CHAIRMAN: I can't clarify for you 14 tonight, and probably not even throughout the 15 hearings, I can't clarify for you whether or not 16 the baseline is 1965 or 2004. But that is 17 certainly within our mandate and you can certainly 18 make arguments during the hearings that it should 19 be 1968. 20 We had a very similar issue with the 21 Wuskwatim process in that Manitoba Hydro basically 22 adopted as their baseline the post CRD level, the 23 post Churchill River Diversion level of water. 24 There was a lot of argument that it should have 25 been pre-CRD. Ultimately, in our report we 00029 1 suggested that there should be a cumulative 2 environmental assessment done that would 3 incorporate some of those issues. So it is 4 certainly open to you to bring that up. Whether 5 it is accepted, what our comments will be on it, I 6 obviously can't say at this point, because we will 7 hear arguments on both sides, perhaps on more than 8 two sides on that. But it is certainly within 9 your rights to raise it during the hearings. 10 MR. JONASSON: But the EIS appears to 11 be written on the basis that -- 12 THE CHAIRMAN: Yes. 13 MR. JONASSON: Thank you. 14 THE CHAIRMAN: Larry. 15 MR. STRACHAN: Larry Strachan, Mr. 16 Chairman. I would like to propose three alternate 17 dates for consideration from the perspective of 18 the project administration team. For item 3, the 19 earliest that we expect that we will be able to 20 provide any documentation to the Floodway 21 Authority respecting deficiencies will be 22 October 29th. 23 For item 6 -- and it is somewhat hard 24 to judge this date because we are not knowing what 25 the degree of the supplemental filings will be 00030 1 made by the Floodway Authority, or what the degree 2 of deficiencies will be, or what may come out of 3 the CEC motions, but we expect that January 7, 4 2005 might be a more appropriate date for item 6. 5 THE CHAIRMAN: January 7. 6 MR. STRACHAN: Yes. And for item 10, 7 given the other two dates, we expect the earliest 8 that we would be able to give any indication to 9 the Clean Environment Commission of the 10 acceptability of the documentation for hearing 11 would be January 14th, 2005. And those are our 12 best guesses at this point in time. 13 THE CHAIRMAN: Okay. Thank you. 14 Anything further? 15 MR. HOLLAND: John Holland, R.M. of 16 Springfield. I guess looking at the time line 17 graph that's been provided to us, there is a 18 reference to something that is going to happen on 19 Friday, October 8th. I'm not aware that something 20 happened then, or that it would have been possible 21 for there to have been a review of comments 22 received, as those were due by the 12th. I guess 23 my real question is, was there an issue of some 24 deficiencies, and if so, to whom? 25 THE CHAIRMAN: I can't comment on that 00031 1 and I'm not sure whether that's really what we are 2 looking at tonight. I think the comments on the 3 deficiencies were to be submitted to you, were 4 they not, Larry? 5 MR. STRACHAN: I believe that 6 Mr. Holland may be referring to the deficiency 7 statement that the Project Administration Team may 8 be providing to the Floodway Authority if 9 necessary, and that would be the October 29th date 10 that I just mentioned. 11 THE CHAIRMAN: Okay. Thank you. Any 12 other comments on the time lines? 13 First of all, let me apologize for not 14 having a sign for you folks. It just got missed 15 somehow or other. There it is over there. 16 MR. LOUDFOOT: Rob Loudfoot, 768 17 Association. We are also concerned that the 18 schedule presented may be somewhat ambitious. We 19 are concerned that we may not be able to do our 20 thing in time. Thank you. 21 THE CHAIRMAN: Okay. Thank you. 22 Thank you for all of your comments. I will 23 certainly take them into consideration. There are 24 some things that can't be locked in until other 25 dates are definitely known. For instance, for 00032 1 example, Mr. Strachan has just said that they 2 probably won't -- that a probable date for 3 advising us that the EIS is sufficient to refer to 4 a hearing will be January 14. Now, under our 5 practice, we need 30 days to advertise. So that 6 would mean that the hearings wouldn't start until 7 approximately the 13th or 14th of February. So, 8 we will take these into consideration. We may not 9 be able to set a final date for the start of the 10 hearings until we have a better idea from 11 Mr. Strachan just when they will be in a position 12 to tell us that. But we can probably safely 13 assume that we won't be starting until mid 14 February. So that gives you all at least a few 15 more weeks than we thought we had when we sat down 16 here this evening. 17 We will get out a notice with some of 18 the dates confirmed within the next few days, and 19 that will highlight the dates for cut-off of 20 information requests, that will have a date for 21 the response from the Authority, and then a date 22 for the motions hearing which will be held shortly 23 after the return of the answers. Given that it is 24 Christmas, it might be early in the new year when 25 we have the motions hearing. But I will advise 00033 1 you all within a few days. 2 Okay. Let's move on, on the agenda, 3 to item number 5 which covers a number of 4 procedural matters. Now, I will take you through 5 the package that you all have on the table in 6 front of you. The first item under the agenda, 7 and also the first item under number 5 is terms of 8 reference. This is the terms of reference that 9 most, if not all of you have already seen. It was 10 submitted by the Minister to the Clean Environment 11 Commission about a year ago. And it just 12 authorizes us, gives us the mandate for the 13 hearings and the scope of the hearings. It is 14 clear, most of you are quite familiar with this. 15 And also within this scope there is still a fairly 16 broad range of matters that we can consider during 17 the hearings, that are relevant to the 18 Environmental Impact Statement. 19 Any questions on the terms of 20 reference? 21 The panel, I have introduced the panel 22 to you. There are currently three of us, there 23 will be a fourth person who will be appointed. As 24 soon as that is done, I will inform you as to who 25 he or she is. 00034 1 Format -- I guess what I would like to 2 talk about under format, there is a single piece 3 of paper in the package that is entitled "A very 4 general overview of the CEC hearing process." 5 Some of you -- actually not that many -- Mr. 6 Benoit and the people from the Department of 7 Conservation have been through previous hearings, 8 but many of you have not been through this process 9 at all. So I would just like to give you a very 10 brief and very cursory overview of what happens. 11 When we first open the hearings, 12 Mr. Strachan, as the chair of PAT, will just give 13 a brief overview of the review process. That will 14 be followed by the Authority presenting a fairly 15 detailed overview of the proposed project, as well 16 as an overview of their Environmental Impact 17 Statement. And that may take them -- I don't 18 know, it certainly won't take a half an hour, it 19 may take a day or it may take a little bit more 20 than a day. Then they will put a panel of people, 21 environmental people in front of the room, and the 22 various participants, the panel members, and 23 general public will be given a period of time to 24 ask questions of the environmental consultants 25 employed by the Authority. So that's your time to 00035 1 ask questions of the consultants on the impact 2 statements. 3 Following that process, then the 4 various participating groups, that is all of you 5 who wish to make a presentation of evidence, 6 whether that be putting your own experts on the 7 stand or presenting your own evidence, can do 8 that. Any evidence, anybody who presents 9 evidence, whether that be a member of your group 10 or a hired expert, will be subject to 11 cross-examination. And the people who can 12 cross-examine the participants are the proponent, 13 the panel, and other participants. 14 Number 7 won't necessarily happen in 15 this order. We will set aside some time when the 16 general public can come and ask questions or make 17 statements on their own. 18 There will also be presenters, and 19 presenters are often groups like the Chamber of 20 Commerce, or the Federation of Labour, or building 21 trades will just come and make a 15 or 20 minute 22 presentation. Those people will not be subject to 23 cross-examination. They may be -- there may be 24 questions from the panel only on matters of 25 clarification, but they won't be cross-examined. 00036 1 Following all of the opening 2 statements, which will probably take the bulk of 3 our hearing period, will be final argument by the 4 participants. That's when you make your case 5 based on the evidence and the questions that you 6 have solicited, or elicited over the previous few 7 days or number of days of hearing. 8 Following the participants' final 9 arguments, the proponent will make their argument, 10 and we will conclude. My best guess -- and as 11 most of you know, I'm still new to this process, I 12 was through the Wuskwatim process -- based on that 13 my best guess is that this will take us perhaps 12 14 to 15 hearing days. I also propose that we will 15 meet four days a week for three, or if necessary, 16 four weeks. We will hold at least one meeting a 17 week so that it runs into the evening. That would 18 likely be from 1:00 until 9:00. The other days of 19 the week would most likely be daytime from 9:00 20 until noon, and then 1:00 until 5:00 o'clock. 21 That's really it on the format. I 22 will come back to some logistical questions later 23 in the agenda. 24 You also have in the package process 25 guidelines respecting hearings. I am not going to 00037 1 go through this -- I will go through an 2 abbreviated version in a moment. But you should 3 be familiar with all of this. You certainly don't 4 have to commit it to memory, but at least look it 5 over and know the process that we will be 6 following. 7 Our general approach is that the 8 hearings are informal and as open to the public as 9 we can, but we do have some structure to them. 10 And it is essential that we be fair to all 11 parties, and by all parties I mean you, the 12 participants, as well as the proponent. So we are 13 flexible and informal up to the point of, if 14 anybody tries to highjack the hearings or tries to 15 waste our time, we will put down the hammer, but 16 we don't really expect that to happen. 17 MS. CLIFTON: Is there any part of the 18 process that will not be public? 19 THE CHAIRMAN: No. Our overall 20 procedures, I think it is mentioned in these 21 guidelines, is that all of our hearings are open 22 to the public except on some occasions when we are 23 dealing with proprietary issues, and that doesn't 24 come into play in these hearings at all. 25 Proprietary issues might be, when we did the Maple 00038 1 Leaf plant, if they were going to divulge some 2 confidential business numbers, it would be closed. 3 But those are rare occasions. So there will be no 4 closed sessions at all. Jack? 5 MR. JONASSON: Jack Jonasson. Back to 6 the overview of the CEC hearing process, number 5, 7 presentation of evidence by participants, number 8 6, cross-examination of participants, is this done 9 in a sequence for each? 10 THE CHAIRMAN: Yes. 11 MR. JONASSON: We don't have to come 12 back two or three times? 13 THE CHAIRMAN: No. If you or your 14 group make your presentation, immediately after 15 you have made your presentation or presented your 16 evidence, cross-examination of your group would 17 occur. 18 I would just like to note one item, 19 and it is actually a little further down on this 20 agenda under number 5, but we will deal with it 21 right now. In the process guidelines, number 11 22 just talks about motions. And during the 23 hearings, if at any time you feel aggrieved by the 24 process, that we have committed a procedural 25 error, it is open to you to make a motion to that 00039 1 effect, in effect, challenging the chair. It must 2 be made in writing. 3 Our process in dealing with those will 4 be that we will hear brief arguments in respect of 5 those motions. We will then recess and consider 6 the issue. We may make a decision. If we do, we 7 will inform you immediately. We may stay the 8 decision and come back later with our decision on 9 that matter. All decisions of the panel in 10 respect of motions are final. 11 We did have one or two such motions 12 come up during the Wuskwatim hearings. They are 13 not common, but I just want to make you aware that 14 that is a tool you can use if necessary. 15 I also included in the package some 16 highlights of the process guidelines. And 17 these -- I put them here so that -- these aren't 18 the only ones in the process guidelines that we 19 will be following, but these are the ones that you 20 really should be aware of. There are certain 21 dates involved in this, certain time limits. I 22 note, for example, under limits on presentations, 23 the guidelines say that all presentations shall be 24 15 minutes. With the registered participants, 25 this rule has never been followed. We ask that 00040 1 you be reasonable in the time that you use. We 2 will ask you a few days ahead of time to give us 3 an estimate of how long you are going to use, but 4 we won't be cutting you off if you are making 5 reasonable arguments. Quite frankly, it is 6 nowhere near 15 minutes, it might be an hour or 7 two or three, whatever is necessary to make your 8 case well. 9 On the second page, the middle of the 10 page down there is some dates in respect of 11 submissions and documents that should be 12 submitted. Also noting the guidelines were 13 developed before e-mail became very common, so 14 serving documents by e-mail is accepted and, in 15 fact, it has almost become the normal practice. 16 I have already told you that the 17 transcripts of this meeting tonight will be 18 available Monday. During the hearings, as a rule, 19 the transcript is available next day and it is 20 available online. The CEC will not provide hard 21 copies of transcripts. We will have the 22 transcript available for you to look at if you 23 wish, but it is in your best interest, if you need 24 to refer to the transcript, to find it online and 25 download it, or download the sections that you 00041 1 want to refer to. 2 Order of presentation -- Jack, I am 3 sorry. 4 MR. JONASSON: Jack Jonasson. If 5 documents may be served by e-mail, what is the 6 e-mail address? 7 THE CHAIRMAN: It will be the CEC -- 8 at this point we -- you may not know -- Rory 9 Grewar, the commission secretary, resigned a few 10 weeks ago and took a job in British Columbia. 11 Right now we don't have a commission secretary. 12 So Joyce and I, and thank goodness for Joyce, 13 because we would be really bumbling, we are trying 14 to make up for Rory at the present time. I 15 anticipate that by early new year, in fact 16 probably even before Christmas, we will have a new 17 commission secretary, and it would be that person 18 that you submitted them to. In the meantime, if 19 you have questions or issues, you can direct them 20 to me. My e-mail address is on the sheet that's 21 part of this package. If I can't answer them, I 22 will direct them to either Joyce or our legal 23 counsel. 24 Order of presentation, I think that 25 refers to the order that the groups will present 00042 1 their evidence. Typically we just do it in 2 alphabetical order, and we will make you aware of 3 that some time in the next few weeks, what the 4 order will be. 5 Cross-examinations, all I want to say 6 in cross-examinations is that, strictly speaking 7 in a hearing process, cross-examination should be 8 conducted through the chair, but in all sense of 9 practicality, we don't do that. However, we ask 10 you to be respectful of the person that you are 11 cross-examining. If anybody is not respectful, 12 they will be cut off. I don't anticipate that, 13 but I just want to make that point. 14 Motions I have mentioned. 15 Logistics, we have talked a little bit 16 about the possible timetable. The other matter 17 under logistics that we have to consider is where 18 we are going to hold the hearings. We are finding 19 already that it is a problem. Joyce has already 20 consulted with a few hotels in the city, it is 21 already a problem booking space for a four-week 22 block in February. We need a fair sized room. We 23 typically use a room I guess about this size, but 24 because we are there all day, we also like to have 25 it attached to a place with food services. So 00043 1 during the Wuskwatim hearings, except when we went 2 up north, in fact even in The Pas, we have held 3 the meetings in hotels so that there is food 4 services right there. We can take a fairly short 5 one hour lunch break and come back and carry on 6 with the business. 7 So there are people coming from both 8 ends of the city, there are a number of people 9 coming from the city, so we may hold -- we may 10 choose to hold all of the hearings in one place 11 and that would be a hotel in Winnipeg. We don't 12 know yet which one, but it would be either 13 downtown or on the east side of the river, St. 14 Boniface or St. Vital. 15 If there is a strong feeling that we 16 should hold some sessions outside of the city, I 17 would like to know either tonight or fairly soon. 18 Remembering that if we were to hold them, for 19 instance, in Selkirk, then it is added distance 20 for people south of the city. If we were to hold 21 them in St. Norbert or somewhere else south of the 22 city, it is added distance for those north of the 23 city. So perhaps a city location, downtown or 24 east side of the river, would be the most 25 convenient to all. If there are strong 00044 1 objections, please let me know within the next few 2 days, or tonight. 3 Okay. I have also included some 4 guidelines in respect of status, and we have, as I 5 have noted earlier, sort of two classifications of 6 participants or people who are appearing before -- 7 participants, under our guidelines on status, 8 anybody who has applied for and received funding 9 is automatically a participant. Those who have 10 applied for and not received funding, but who 11 express a wish to be a participant, will be a 12 recognized as a participant. For the purpose of 13 these hearings, we have already designated that 14 all of you who have applied for funding are 15 participants. So everybody sitting around this 16 table has the status of a participant. 17 Presenters will be, as I mentioned 18 earlier, those citizen groups who wish to make 19 just a statement. If any other group wishes to be 20 a participant, group or individual wishes to be a 21 participant and have the right to present evidence 22 and cross-examine witnesses, they must apply in 23 writing to the panel. 24 So, none of you need be concerned of 25 that. If you know others who wish to have that 00045 1 status, they should apply in writing to us any 2 time up to just days before the hearing is 3 commenced. 4 One other thing, and perhaps we should 5 send it around right now. Joyce -- we will make 6 contact, or we want one contact person from each 7 group. We will send out all information to that 8 one contact person, and it is up to that contact 9 person to ensure that the other members of the 10 group get that information. It is simply too 11 onerous for us to be sending it out to 40 or 50 12 people when there are a dozen or so groups 13 involved. So perhaps Joyce can send this around, 14 and please put in the e-mail address of the person 15 that you wish to be the one contact, and we will 16 put that on our list. 17 One other item that I would like to 18 bring up, I mentioned it before when we had the 19 meetings on the participant funding, I would just 20 like to state it again, that those of you who 21 received participant funding, that funding is to 22 be spent only for your participation, your 23 involvement with the CEC hearing process. 24 At the end, after the hearings, you 25 will be asked to submit fairly detailed accounts 00046 1 of how you spent that money. If it was not spent 2 on the hearing process, you won't receive the 3 remaining two-thirds, and it is open to the 4 Province to seek a return of the initial 5 one-third. So please don't spend it on anything 6 else. Don't spend it on other processes that you 7 may wish to use to get involved in this. That 8 money is for the Clean Environment Commission 9 hearing process. Bob? 10 MR. STARR: Bob Starr. Just wondering 11 how the rest of the money flows? Maybe that's a 12 question for the Floodway Authority. Do we not 13 get any more until the very end? 14 THE CHAIRMAN: You get one-third up 15 front, the remaining two-thirds comes at the end 16 of the hearings. In fact, it is probably a month 17 or two after the end of the hearings, or even 18 longer. In fact, we still haven't resolved all of 19 the issues on the Wuskwatim participant funding. 20 That's because they haven't submitted the 21 information that was requested of them -- but the 22 remaining two-thirds come afterwards, and after 23 you have submitted a detailed account. 24 MR. STARR: Okay. 25 THE CHAIRMAN: We realize that it 00047 1 means that you have got to put people on some kind 2 of accounts, but at least it is better than some 3 of the other process in other jurisdictions, and 4 in Manitoba with the PUB, for example, where they 5 don't get anything up front. We give you a little 6 bit of seed money. Jack? 7 MR. JONASSON: Given what you just 8 said, it is important that we know what the 9 mandate of the CEC is because -- 10 THE CHAIRMAN: I think you know the 11 mandate, the mandate is included in here. It is 12 as set out in this document from the Minister, the 13 terms of reference. It is in relation to the EIS 14 that has been tabled by the Floodway Authority, of 15 which you have a copy of and I'm sure you have 16 been through it. 17 MR. JONASSON: But if we spend some of 18 our funds questioning the issue of what the 19 baseline is -- 20 THE CHAIRMAN: That's perfectly 21 legitimate. 22 MR. JONASSON: Good. Thanks. 23 THE CHAIRMAN: If you use it to go to 24 court and try to get an injunction to try and stop 25 the project, that's not legitimate. 00048 1 MR. LOUDFOOT: Rob Loudfoot, 768 2 Association. When do we expect to receive the 3 first third? 4 THE CHAIRMAN: The letter has gone to 5 the Minister. Mr. Strachan, can you answer that? 6 MR. STRACHAN: The question was that 7 you haven't received your first funding yet? It 8 was my understanding that the order included 768 9 Association, and whether or not the cheque has 10 been issued or not, I don't know. 11 MR. MCNEIL: I don't know about the 12 specific cheque, but I do know that the VP of 13 finance confirmed that they were sent out two or 14 three weeks ago. In fact, I asked him to phone 15 each of the groups and ask, do you want them 16 mailed out or do you want to come and pick them 17 up? So we will look into that tomorrow. 18 MR. LOUDFOOT: There have been 19 significant problems with our addresses through 20 this whole process, so this may be just a 21 continuation of that problem. 22 THE CHAIRMAN: Perhaps you could deal 23 with Mr. McNeil after we adjourn and try and 24 resolve the address situation. 25 Just give me a moment, I just want to 00049 1 go through the notes that I prepared. 2 I should let you know also that for 3 the information requests or interrogatories, once 4 all of the material -- once you have submitted -- 5 you will submit those questions to the Clean 6 Environment Commission, we will then submit them 7 to MFEA, they will respond to all of the 8 questions. You will all receive copies of all of 9 the responses, so you will have all of that 10 information. You will know all of the questions 11 that have been asked and answered. 12 I think that covers all that I had to 13 say in respect of number 5 on the agenda. Number 14 6 talks about legal representation. And really 15 all I wanted to say on that is that it is 16 certainly open to any group to engage legal 17 counsel, if you can afford it. It is certainly, 18 from my experience on the Wuskwatim process, 19 helpful, but it is not at all necessary. You are 20 not expected to have legal counsel, but it is 21 certainly open to you to engage counsel. 22 We have -- the panel will have legal 23 counsel working with us. The Floodway Authority 24 will have legal counsel working with it. Jack? 25 MR. JONASSON: Back to the question of 00050 1 the use of funds, what kind of auditing process 2 are we expected -- or do you do the auditing? 3 THE CHAIRMAN: It is not an audit in 4 the sense that we don't expect you to hire an 5 auditor for your books, but we expect reasonably 6 good accounting of how you spent the money. So, 7 you know, just a listing and copies of invoices, 8 and a listing of expenditures. If you allow $10 9 or $15 for meals, or $20 for meals while you 10 attend the hearings, that's reasonable. If you 11 allow $75, you are probably not going to get paid 12 for that. If you hire an engineer or a lawyer or 13 some consultant, and you pay him 10 or 15 or 14 $20,000, and you submit an invoice from him, and 15 he has given a reasonable overview of what he or 16 she did, then that would be accepted. If you 17 don't provide bills, if you just say, well, we 18 spent this money but you don't provide any 19 evidence of how you spent it -- don't laugh, some 20 groups have done this to us. You provide us some 21 evidence that it was spent properly, you will get 22 it. 23 Organizational representation, number 24 7, we have already discussed that. And the sheet 25 is going around, and I would ask, please don't 00051 1 leave until you have put your e-mail address on 2 that sheet. Jack? 3 MR. JONASSON: Before we leave, could 4 we get some kind of bio on the other commissioners 5 that presently are going to be sitting and hearing 6 what is happening? 7 THE CHAIRMAN: Certainly. I will ask 8 them to give a brief overview, or a brief bio, we 9 are not going into detail here. Barrie Webster. 10 MR. WEBSTER: Barrie Webster, I am a 11 chemist by background, I have a PhD in organic 12 chemistry. I have been a professor at the 13 University of Manitoba in the area of pesticide 14 environmental chemistry for about 26 years. I 15 have been in the private sector the last seven 16 years, since retiring from the University of 17 Manitoba. My work on the Clean Environment 18 Commission goes back to 1983, and I have had 19 extensive experience in the hearing process as 20 result of that. 21 I'm originally from British Columbia, 22 but have spent, I have lived in Winnipeg since 23 1971, have benefited from the existing floodway 24 since I live near the river. And I have been, I 25 guess, heavily involved in environmental matters 00052 1 over much of the time that I've lived in Winnipeg. 2 Does that suffice? 3 THE CHAIRMAN: Yes, thank you. Wayne? 4 MR. MOTHERAL: My name is Wayne 5 Motheral, and I originally am from Snow Flake, 6 Manitoba, if anybody knows where Snow Flake is. 7 It is a border town. I'm retired, semi-retired 8 now, living in Morden. I believe the reason I was 9 appointed to the Commission, I was past president 10 of the Association of Manitoba Municipalities and, 11 of course, John Holland and Phil Rebeck can vouch 12 for that. I would expect the Minister appointed 13 me to this Commission because of my ability to 14 listen to people, because I have done a lot of 15 that over the years. And I'm really going to 16 enjoy this process, it is a challenge, but I'm 17 glad to be here. 18 THE CHAIRMAN: Wayne didn't mention 19 that he was a farmer, so he is well aware of how 20 important the environment is. Yes, Barrie? 21 MR. WEBSTER: One other comment -- 22 aside from the fact that our chairman has legal 23 qualifications, my comment will be that, from 24 experience that I have had in the hearing process, 25 legal representation to the panel doesn't 00053 1 necessarily give advantage to the people who are 2 hiring that legal expertise. Legal presentation 3 to the panel can in fact antagonize the panel. 4 The legal expertise, on the other hand, is very 5 valuable. So what I'm trying to tell you is, if 6 you do use legal expertise, use it well and don't 7 necessarily feel that you have to have somebody in 8 front of us at all times presenting your case. It 9 is not a court of law, it is a hearing. 10 THE CHAIRMAN: Jack. 11 MR. JONASSON: Just in response to 12 that, we are just citizens, and if we are granted 13 $50,000 to go through this process, and after the 14 process is finished someone, whoever makes that 15 decision, judges that in fact you asked the wrong 16 question and you don't get the money, that doesn't 17 quite seem reasonable. And I will tell you, we 18 are going to engage legal counsel just for that 19 reason, for general counsel, not to make 20 presentations to the committee. I hope that's a 21 charge that we can charge to that $50,000. 22 THE CHAIRMAN: Absolutely. And you 23 won't be denied the extra funding simply because 24 we don't like the questions you ask. If they are 25 even remotely relevant, they will be accepted. I 00054 1 don't think that you need to worry about getting 2 your second money, Jack. 3 Any other matters of interest or 4 concern? John? 5 MR. HOLLAND: John Holland, RM of 6 Springfield. I don't want to sound like a lawyer, 7 given those prior comments, but I wonder if there 8 is a process for qualifying expert witnesses? 9 THE CHAIRMAN: No. My experience in 10 Wuskwatim -- and Barrie who has been around 11 through many hearings over the years says no. I 12 think as long as there is a reasonable CV, and 13 even just a brief explanation at the beginning of 14 the presentation of who they are and what their 15 background is, that's sufficient. But it is not 16 to the same degree as you would do in a court of 17 litigation. 18 MS. CLIFTON: Maxine Clifton. Could I 19 get a clarification of the role that legal counsel 20 for the CEC, as well as the Floodway Expansion 21 Authority, what role they will have? 22 THE CHAIRMAN: They will be advisors 23 to their clients. So Mr. Abra will be the legal 24 advisor to the panel. His services are not 25 available to the participants. And the same for 00055 1 the legal counsel engaged by the Authority, they 2 will be, their counsel will be advising them on 3 issues of concern to them. 4 You will also find that Mr. Abra may 5 engage in some of the cross-examination on behalf 6 of the panel. That was a role that he played 7 during the Wuskwatim hearings. And legal counsel 8 for the proponent may well, I would suspect that 9 based on the Wuskwatim experience, conduct the 10 cross-examination for the proponent. 11 MS. CLIFTON: It just seems to me that 12 if we are subject to possible cross-examination by 13 legal counsel on the other side, why would you 14 advise us that we wouldn't require legal counsel 15 to conduct our cross-examinations? 16 THE CHAIRMAN: I am simply saying that 17 you don't need to have legal counsel. If you 18 choose to hire them, that's fine. I might be 19 biased, being a lawyer, but I think that legal 20 counsel can be of assistance in preparing your 21 case. 22 MR. MCNEIL: Doug McNeil with the 23 Floodway Authority, can I just make one point? 24 THE CHAIRMAN: Certainly. 25 MR. MCNEIL: I don't think it is the 00056 1 Floodway's intent to use our legal counsel to 2 cross-examine other participants. They are there 3 to provide legal advice to the Floodway Authority. 4 THE CHAIRMAN: Okay, I stand 5 corrected. Hydro did use their counsel to conduct 6 cross-examination. 7 Any other issues or concerns before we 8 bring this meeting to a pleasantly earlier than 9 expected adjournment? If any of you are 10 interested, all this noise next door is a beer 11 festival. 12 MS. CLIFTON: I have one question. 13 THE CHAIRMAN: Yes, Maxine? 14 MS. CLIFTON: In terms of when we 15 anticipate, or some groups anticipate calling 16 witnesses ourselves, can you describe that process 17 a little bit in terms of calling certain 18 individuals for the purpose of cross-examination 19 where they might not otherwise be there? Can you 20 explain that a little bit for us? 21 THE CHAIRMAN: I'm not quite sure that 22 I follow. If you call -- excuse me, if you call 23 somebody to give evidence, the process would be 24 that that person is sworn in, or attests, or 25 affirms that they will speak only the truth. You 00057 1 or somebody from your group or counsel will ask 2 questions of this person, or this person may just 3 make a prepared statement. At the end of that, 4 the other parties can cross-examine that witness. 5 MS. CLIFTON: Can you clarify that 6 that person may prepare, or give a prepared 7 statement or be cross-examined? 8 THE CHAIRMAN: No, it would be both. 9 The prepared statement would be the evidence that 10 they are giving. And then the cross-examination 11 would be the other parties asking questions of 12 that person, either to challenge the assumptions 13 or to seek clarification on the assumptions. 14 MS. CLIFTON: Okay. Is there any 15 method to compel someone to appear? 16 THE CHAIRMAN: We do have the 17 authority to subpoena people. We are reluctant to 18 exercise that. 19 MS. CLIFTON: Is there a mechanism 20 where you can? 21 THE CHAIRMAN: Yes. And it is the 22 panel that issues a subpoena, it is not the 23 participants. You would have to appeal to the 24 panel and ask us to subpoena a certain witness. 25 MR. STARR: Would the same thing 00058 1 apply, Terry, for information? If there is 2 information that we haven't been able to get, can 3 you subpoena the information? 4 THE CHAIRMAN: I can't answer that 5 tonight. I don't know. And I think it would 6 depend on what that specific information is. It 7 might be beyond our mandate. If it were within 8 our mandate, perhaps, but I'm not going to make a 9 firm statement. 10 MS. CLIFTON: Is it possible that 11 there would be information that we feel is 12 critical and -- well, critical, that you might 13 deem not within your mandate and that we couldn't 14 introduce information that is totally applicable 15 to the project? Is that clear? 16 THE CHAIRMAN: I think I know what you 17 are saying, and I think we would have to consider 18 it on a case by case basis. You would have to 19 make your pitch to us, we would consider it, and 20 then if there were a way that we could compel it, 21 if we felt it was necessary, if you convinced us 22 that we had to have this information, we would 23 then find a way that hopefully we could get it. 24 That's a bit of a non-answer, but I think that's 25 the best that we can give you right now. 00059 1 MR. STRANG: Yes, Steve Strang from 2 the RM of St. Clements. How much time will be set 3 aside for the public? 4 THE CHAIRMAN: For the general 5 public -- basically, as much as is needed. It may 6 be at a designated time but -- what we did in 7 Wuskwatim, and it usually happened in the evening 8 sessions because that's when it is easiest for a 9 lot of the general public to come, is that they 10 just let the commission secretary know that they 11 wished to ask questions or make a statement and we 12 would slot them in. We would set aside that at 13 8:30 we adjourn other business and then hear from 14 the general public for an hour or half an hour or 15 whatever. 16 MR. STRANG: One other question 17 regarding the contact. John has been acting as 18 the contact between ourselves with East St. Paul, 19 St. Clements and Springfield. We are wishing to 20 have individual mailouts for any correspondence. 21 Is that possible, seeing that we are three 22 municipalities? 23 THE CHAIRMAN: Let's talk off the 24 record after the end of the hearing, I think we 25 might be able to arrange that. 00060 1 MR. STRANG: Thank you. 2 THE CHAIRMAN: Jack? 3 MR. JONASSON: Before we go, 4 Mr. McNeil spoke eloquently of the reasons to get 5 on with this and shorten the time line, so to 6 speak. I would just like to remind everybody here 7 that once this is done, it is done forever almost. 8 And it is extremely important, at least to us who 9 are not benefiting from the floodway, that this be 10 done not expeditiously, but very, very carefully. 11 THE CHAIRMAN: Jack, I would agree, 12 but I think we can do both. Let me qualify it by 13 saying that the panel will not be railroaded to 14 get this through if we haven't conducted a 15 sufficient review. We will try to get it done as 16 quickly as possible, but speed won't be sacrificed 17 to thoroughness -- is that the right way -- no, 18 thoroughness won't be sacrificed to speed. We 19 will ensure that a fair and full hearing has been 20 conducted, but we won't -- we will not do anything 21 to unnecessarily delay or even allow delays of the 22 process. 23 Thank you all for coming out tonight. 24 I will say again, if you have further questions on 25 any of the stuff that we talked about tonight, 00061 1 feel free to e-mail me. Don't phone me because I 2 am hardly ever in the office these days, but 3 e-mail me and I will get back to you as soon as 4 possible. It may not be immediate, but it may be 5 within a few days, or I will pass it on to someone 6 who will respond to you. Thank you all and good 7 night. 8 9 (ADJOURNED AT 8:30 P.M.) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 00062 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 61 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