07508
  1              MANITOBA CLEAN ENVIRONMENT COMMISSION
  2          
  3                     VERBATIM TRANSCRIPT  
  4                        Volume 32
  5                             
  6              Including List of Participants
  7                             
  8        
  9                             
 10                      Hearing
 11                         
 12   Wuskwatim Generation and Transmission Project
 13                         
 14                    Presiding:
 15               Gerard Lecuyer, Chair
 16                    Kathi Kinew
 17                  Harvey Nepinak
 18                   Robert Mayer
 19                  Terry Sargeant
 20     
 21                Wednesday, June 9, 2004
 22                  Radisson Hotel
 23                  288 Portage Avenue
 24                   Winnipeg, Manitoba
 25       
07509
  1                  LIST OF PARTICIPANTS
  2   
  3   Clean Environment Commission:
  4   Gerard Lecuyer        Chairman
  5   Terry Sargeant        Member
  6   Harvey Nepinak        Member
  7   Kathi Avery Kinew     Member
  8   Doug Abra             Counsel to Commission
  9   Rory Grewar           Staff
 10   CEC Advisors:
 11   Mel Falk
 12   Dave Farlinger
 13   Jack Scriven
 14   Jim Sandison
 15   Jean McClellan
 16   Brent McLean
 17   Kyla Gibson
 18   
 19   Nisichawayasihk Cree Nation:
 20   Chief Jerry Primrose
 21   Elvis Thomas
 22   Campbell MacInnes
 23   Valerie Matthews Lemieux
 24   Anges Spence
 25   David Spence
07510
  1                    LIST OF PARTICIPANTS
  2    
  3   Nisichawayasihk Cree Nation:
  4   Jimmy Hunter Spence
  5   Darcy Linklater
  6   Elder Sam Dysart
  7              
  8   Manitoba Conservation:
  9   Larry Strachan
 10   Trent Hreno
 11   
 12   Manitoba Hydro:
 13   Doug Bedford, Counsel
 14   Bob Adkins, Counsel
 15   Marvin Shaffer
 16   Ed Wojczynski
 17   Ken Adams
 18   Carolyn Wray
 19   Ron Mazur
 20   Lloyd Kuczek
 21   Cam Osler
 22   Stuart Davies
 23   David Hicks
 24   George Rempel
 25   David Cormie
07511
  1                       LIST OF PARTICIPANTS
  2   Manitoba Hydro (cont'd)
  3   
  4   Alex Fleming
  5   Marvin Shaffer
  6   Blair McMahon
  7   
  8   
  9   Trapline 18
 10   Don McIvor
 11   
 12   
 13   Boreal Forest Network
 14   Don sullivan
 15   
 16   
 17   
 18   
 19   
 20   
 21   
 22   
 23   
 24   
 25   
07512
  1   
  2                             INDEX OF EXHIBITS
  3   
  4   EXHIBIT NO.                                       PAGE
  5   
  6   
  7   T18-1003:     Closing Statement of              
  8                 Trapline #18                        7552  
  9   
 10   MC-1006:      Answer to Undertaking    
 11                 MC-73, provide a copy of the provisions              
 12                 and conditions as set out in the interim             
 13                 licence for the diversion of water from              
 14                 the Churchill River to the Nelson River              
 15                 and the impoundment of water on the Rat              
 16                 River and Southern Indian Lake      7568 
 17   
 18   MC-1007:      Answer to Undertaking             
 19                 MC-74, advise what the circumstances are             
 20                 in the regulations when a licence under              
 21                 the Water Power Act is issued and what               
 22                 modifications can be made           7569
 23   
 24   
 25   
07513
  1                        INDEX OF EXHIBITS
  2   
  3   EXHIBIT NO.                                       PAGE
  4   
  5   MC-1008:      Answers to undertakings MC-75 and 
  6                 MC-76 which are as             
  7                 follows: Advise what statutes or                     
  8                 regulations or changes have taken place              
  9                 that fall under the term regulations of              
 10                 the day for the Churchill River Diversion             
 11                 Interim licence; and advise whether there             
 12                 have been any amendments to the                      
 13                 regulations since 1973               7569
 14   
 15   MC-1009:      Answer to undertaking             
 16                 MC-77, provide information regarding MMF             
 17                 locals being present at consultations to             
 18                 date under stage 2 of the consultation               
 19                 process                             7569
 20    
 21   MC-1010:      Answer to undertaking             
 22                 MWS-78, advise on the position whether               
 23                 Manitoba Hydro is meeting requirements of             
 24                 Missi Falls Licence Regime on a regular              
 25                 basis                               7570
07514
  1                      INDEX OF EXHIBITS
  2   
  3   EXHIBIT NO.                                       PAGE
  4   
  5   MC-1011:      Answer to undertaking             
  6                 MWS-79, advise if Hydro notifies Water               
  7                 Branch re adverse impacts on community of             
  8                 South Indian Lake each year         7571
  9   
 10   MH/NCN 1051:  Final submission brief of
 11                 Nisichawayasihk Cree Nation
 12                 and Manitoba Hydro                  7691
 13   
 14   
 15   
 16   
 17   
 18   
 19   
 20   
 21   
 22   
 23   
 24   
 25   
07515
  1   WEDNESDAY, JUNE 9, 2004
  2   Upon commencing at 10:08 a.m.
  3   
  4               THE CHAIRMAN:  While copies of the 
  5   statement of Trapline 18 are being made, I just want 
  6   to take a moment to address an issue which was the 
  7   last issue addressed yesterday.  It referenced two 
  8   letters which had been sent to the Clean Environment 
  9   Commission in December by Mr. Vern Anderson of the 
 10   Association of Displaced Residents of South Indian 
 11   Lake.  And I did indicate yesterday that we had 
 12   responded to those two letters on January 8 and read 
 13   a portion of that letter.  
 14               We were delivered yesterday a copy of a 
 15   letter which was dated January 21, 2004 which was 
 16   from Mr. Vern Anderson of the Association of 
 17   Displaced Residents of South Indian Lake.  For some 
 18   unclear reason, this letter has never been received 
 19   at the Clean Environment Commission.  It's addressed 
 20   to me as Chairman.  Perhaps it was mistakenly 
 21   delivered to the office adjoining the Clean 
 22   Environment Commission.  We have no record of it but 
 23   we do acknowledge that this letter was delivered to 
 24   us yesterday.  And I haven't even fully read this 
 25   letter.  If it's pertinent, we will respond to it.  
07516
  1               I understand that, of course, it is not 
  2   very timely anymore but it was a letter addressed to 
  3   us in response to my own letter of January 8.  So for 
  4   whatever unexplained reason, I repeat, we did not 
  5   until yesterday, until this morning as far as myself 
  6   is concerned, have not seen this letter but it was 
  7   indeed delivered to us.  
  8               Do we have copies, Mr. Grewar, for the 
  9   Trapline 18 statement?
 10               MR. GREWAR:  They are just coming down in 
 11   a few moments, Mr. Chairman.
 12               THE CHAIRMAN:  Thank you.  We'll just 
 13   wait very briefly.
 14               MR. GREWAR:  I can advise for the record 
 15   at this point, Mr. Chairman, that we have now 
 16   received, as of this morning, the undertakings that 
 17   were discussed yesterday by Merrell-Ann Phare from 
 18   the Community Association of South Indian Lake.  They 
 19   are undertakings MC-73 through to MC-79 and each 
 20   undertaking has been provided.  
 21               There will be electronic versions 
 22   distributed to all the participants of those 
 23   components of the documents which can be sent 
 24   electronically.  Unfortunately, some of the 
 25   undertakings contain fairly large maps and area 
07517
  1   regional plans which cannot be easily sent 
  2   electronically at all.  
  3               So what I'm going to propose is this 
  4   afternoon, we'll assign exhibit numbers to the 
  5   according undertakings for the record and try to 
  6   provide as many of the electronic copies as we can to 
  7   all the participants and then those items which 
  8   cannot be copied and distributed will simply have to 
  9   be available for review at the Commission office.  
 10   And they will be made available immediately.  
 11               So I just wanted to give you a heads-up 
 12   on that and we will assign exhibit numbers to these 
 13   various undertakings perhaps immediately after the 
 14   break.
 15               THE CHAIRMAN:  Okay.  Thank you, Mr. 
 16   Grewar.  You do not want to do that at this moment 
 17   while we're waiting?
 18               MR. GREWAR:  No, Mr. Chairman.  Although 
 19   it would be a good time to do it, unfortunately I 
 20   haven't had a chance to go through them and separate 
 21   them and assign numbers.  So it would be perhaps more 
 22   confusing than anything at this point.
 23               THE CHAIRMAN:  Thank you.  Mr. McIvor, 
 24   you may begin.
 25               MR. MCIVOR:  All right.  Good morning, 
07518
  1   elders, ladies and gentlemen, panel members, 
  2   Commission members, I just want to thank you for this 
  3   opportunity this morning to present on behalf of 
  4   Trapline 18 regarding the Generating Station Project 
  5   and also the Transmission Project, which is known as 
  6   Wuskwatim.  
  7               As you are aware, my brother Donald 
  8   McIvor who is a member of Pimicikamak Cree Nation, 
  9   unfortunately he couldn't attend this morning so I'll 
 10   be doing the closing on his behalf. 
 11               Firstly, just to give a little bit of 
 12   background, back in the 2002, I spent several months 
 13   working with Chief Primrose and council along with 
 14   their legal counsel in terms of promoting the 
 15   Wuskwatim project.  And my participation basically 
 16   was to coordinate and facilitate meetings on behalf 
 17   of the Chief with various federal ministers, whether 
 18   it be in Ottawa or, you know, side trips to Wuskwatim 
 19   and NCN community.  And I know that there was at 
 20   least three Ministers that attended in this community 
 21   along with the Senator.  
 22               And in addition to that, being a -- I 
 23   guess, you know, taking materials from NCN to various 
 24   ministers in Ottawa as well as the Prime Minister's 
 25   office, this is just some of the things that I was 
07519
  1   doing on behalf of NCN in support of, you know, what 
  2   their visions were for their community.  
  3               So I just wanted to give you that 
  4   information so that, you know, nobody in this room 
  5   thinks that, you know, Trapline 18 is opposed to what 
  6   NCN is doing.  But, you know, the difficulty -- well, 
  7   not the difficulty, but I think -- and you have heard 
  8   comments from CASIL and from Chris Baker, headman for 
  9   OPCN, you know, when it comes to family, there's a 
 10   lot of difficult decisions that have to be made.  And 
 11   you know, when my brothers asked me to come and 
 12   represent them in this process, because we didn't 
 13   have the resources to get the legal or the technical 
 14   support that we required, you know, I had to do that. 
 15   That was my responsibility.  So that's why I'm here. 
 16               Anyway, just to begin.  Firstly, I would 
 17   like to thank the CEC, Manitoba Hydro, all those who 
 18   have participated in this process thus far.  It has 
 19   been a long road and we appreciate everyone who has 
 20   travelled it with us.  This process is adversarial by 
 21   nature and we wanted to express that we respect and 
 22   applaud the efforts given by everyone throughout the 
 23   past few months.  
 24               I will highlight some important points 
 25   Trapline 18 has presented throughout these hearings.  
07520
  1   I will then focus on some of Trapline 18's 
  2   submissions on some unfortunate procedural matters 
  3   that have proven to be hurdles to our effective 
  4   participation.  Finally, I will provide 
  5   recommendations as to how we believe the CEC should 
  6   review this process.  My hope is that the CEC and 
  7   regulators can take these comments in order to 
  8   improve future hearings. 
  9               At the outset, Trapline 18 was under the 
 10   belief that the CEC review of the Wuskwatim projects 
 11   was to be a public friendly process where all 
 12   participants would be given support and respected for 
 13   their various positions brought before the CEC.  Our 
 14   intent was to share our knowledge of Wuskwatim and 
 15   Trapline 18 area with the CEC and the public.  
 16   However, I am not a lawyer nor am I a scientist, and 
 17   it seems that these are prerequisites to 
 18   participating in this process.  Trapline 18's 
 19   experience has been frustrating and we do not believe 
 20   we have been able to participate in a meaningful way 
 21   for a number of reasons.  
 22               Legal expertise and the process.  We have 
 23   stated during our presentation we do not have the 
 24   geographic, hydrological and legal expertise to put 
 25   forward our position.  We understand that this type 
07521
  1   of expertise was not actually required to 
  2   participate.  For example, at the Motions Hearing on 
  3   Friday, January 23, 2004, Ms. Avery Kinew stated that 
  4   she was interested in what we can bring forward in 
  5   the hearing.  We very much appreciated that.  To 
  6   quote from the transcripts, on page 81.  
  7                  "Ms. Avery Kinew:  Good morning, Mr. 
  8                  McIvor, we are glad you came.  And I 
  9                  think we are interested in what you 
 10                  can bring forward in the hearing.  And 
 11                  you feel that the responses that you 
 12                  have to date don't provide you with 
 13                  enough information.  I think what we 
 14                  would be looking from you is what you 
 15                  and your brothers know about the land, 
 16                  more traditional knowledge, not 
 17                  necessarily numbers and western 
 18                  scientific evidence, but traditional 
 19                  knowledge." 
 20               On page 83.  
 21                  "Ms. Avery Kinew: I think in the 
 22                  hearing we would like to move forward 
 23                  to hear some of the evidence you have, 
 24                  and whatever you can do to bring that 
 25                  forward would be helpful."  
07522
  1               These comments were taken seriously and 
  2   Trapline #18 had provided as much of our experience 
  3   and knowledge about our trapline as possible.  
  4   Gauging by the response to our presentation, it is 
  5   apparent that traditional knowledge was not what was 
  6   expected of us but rather western scientific evidence 
  7   that contradicts Manitoba Hydro's assertion that 
  8   Trapline 18 is unaffected by northern hydro 
  9   development.  This is unfair. 
 10               On May 26, 2004, Trapline 18 presented 
 11   its oral submissions to the CEC.  On that date, we 
 12   raised major issues with respect to cumulative 
 13   effects and the lack of fairness and equity with 
 14   participation in the review of Wuskwatim. 
 15               a.  That many, if not most, impacts from 
 16   Churchill River Diversion, those being the system 
 17   impacts, are felt across Trapline 18 and Northern 
 18   Manitoba and will not be confined to NCN territory.   
 19               b.  That many, if not most, impacts from 
 20   the Augmented Flow Program that is currently operated 
 21   within the Churchill River Diversion, those being the 
 22   system impacts, are felt across Trapline 18 and 
 23   Northern Manitoba and are not confined to NCN 
 24   territory.  
 25               c.  The CEC does not know what all the 
07523
  1   CRD hydro system impacts are, thus cannot know all 
  2   the ways and degrees the addition of Wuskwatim to the 
  3   Churchill River Diversion and the AFP will affect the 
  4   water quality, environment, wildlife and greenhouse 
  5   gas emissions. 
  6               We have spoken with elders and others who 
  7   have worked, hunted, fished, trapped and gathered in 
  8   and around Trapline 18 who also believe that the 
  9   extreme water fluctuations are not an act of God.  My 
 10   brothers have lost money and equipment over the years 
 11   trying to access their trapline.  But with the slush 
 12   ice, hanging ice and eroded shorelines have been a 
 13   consistent problem over the past 30 years. 
 14               Our point is that in the 1970s when 
 15   Manitoba Hydro first began the construction of the 
 16   Churchill River Diversion and the Lake Winnipeg 
 17   Regulation, nobody predicted the devastating impact 
 18   it would have.  It seemed impossible that these 
 19   projects would have a significant deleterious impact 
 20   on Northern Manitoba.  
 21               I will quote from the 1979 Tritschler 
 22   Report that was sanctioned by the government 
 23   following the construction of the CRD.  
 24                  "Studies of the social and 
 25                  environmental effects of the CRD were 
07524
  1                  inadequate.  Hydro did not realize 
  2                  until long after the final commitment 
  3                  of CRD in December 1972 that the 
  4                  project could not be completed without 
  5                  significant remedial measures 
  6                  downstream of Missi Falls and Notigi.  
  7                  The delayed recognition of the major 
  8                  engineering problems at South Bay 
  9                  Channel and Missi Falls, and along the 
 10                  Burntwood River, combined with the 
 11                  failure of Hydro and government to 
 12                  resolve the mitigation issues in a 
 13                  timely manner were the principal 
 14                  causes for the two year delay in 
 15                  completion."  
 16   Furthermore, the report stated, and I quote, 
 17                  "Had the government and Hydro 
 18                  initiated negotiations with affected 
 19                  communities prior to the commitment of 
 20                  the CRD project in 1972, the course of 
 21                  events would have been drastically 
 22                  different.  As it was, Hydro's lack of 
 23                  readiness combined with the 
 24                  procrastination and confrontation 
 25                  tactics of the Advisory Committee 
07525
  1                  contributed to the expense and length 
  2                  of time it took to reach a settlement 
  3                  with the Northern Flood Committee or 
  4                  NFC."  
  5               While we understand that this 
  6   environmental review has helped tremendously in 
  7   predicting future impacts, it is our position that 
  8   the opinions expressed 25 years ago in the Tritschler 
  9   Report are still very applicable today.  Hydro has 
 10   been wrong in the past so it is not inconceivable 
 11   that they are wrong about certain matters today. 
 12               On March 25, 2004 at Opasquia Cree 
 13   Nation, we had an opportunity to listen to Chief 
 14   Clarence Easter of Chemawawin Cree Nation, who 
 15   pointed out, in his community's experience of dealing 
 16   with Hydro over 40 years, we must not lose site of 
 17   achieving sustainable development in our communities 
 18   and that we have to look forward, but let's correct 
 19   the wrongs of the past, learn from our mistakes and 
 20   don't throw the baby out with the bath water. 
 21               While we have openly stated, and refer to 
 22   transcript of the January 23rd Motions hearing, that 
 23   we support the Wuskwatim process, it is our concern 
 24   that Wuskwatim and subsequent dams will lead to 
 25   further degradation of Trapline #18.  I believe that 
07526
  1   we have shown that the water level changes on 
  2   Trapline 18 are not natural and that the operation of 
  3   the CRD leads to unpredictable conditions on Ferguson 
  4   Creek.  We have shown photographic evidence 
  5   documenting the significant changes to our trapline 
  6   over the past 10 years.  We have provided statements 
  7   from people who have hunted and worked in the area, 
  8   who contend that the water fluctuations on Trapline 
  9   18 are not natural.  We have seen from the video that 
 10   the landscape of Trapline 18 is not healthy. 
 11               Wuskwatim Brook, which is situated only 
 12   kilometres north from Ferguson Creek, is directly 
 13   tied to the Wuskwatim system and the CRD.  
 14   Geographically, the distance between the Brook and 
 15   the Ferguson Creek is small and the area in between 
 16   the two systems is swampy, wet and marshy.  We have 
 17   also heard testimony throughout this process that 
 18   nine NCN traplines around Trapline 18 have 
 19   experienced low production over the past 10 years.  
 20   And evidence from NCN consultants indicate NCN 
 21   trappers have abandoned their traplines in the south 
 22   end, specifically Trapline 41, 64 and 65 of the 
 23   Nelson House Resource Management area.  We would 
 24   suggest that that is related to water fluctuations 
 25   and unstable environment conditions. 
07527
  1               With the continuance of Hydro-controlled, 
  2   unnatural and thus damaging water level changes, we 
  3   will continue to witness the degradation of 
  4   shorelines and anthropogenic disturbance of riparian 
  5   zones in the northern region; further destruction of 
  6   wildlife including fish habitat, bird habitat, 
  7   caribou, fox, beaver and martin habitat; the 
  8   elimination of traditional pathways to pursue our 
  9   Treaty, inherent and Aboriginal right to hunt, trap, 
 10   fish and gather on our land. 
 11               Trapline 18 depends on a stable and 
 12   sustainable environment to retain a way of life, 
 13   culture and livelihood.  We have witnessed 
 14   devastation.  The land is being sucked away, water is 
 15   clogged with pollutants and life-threatening hazards 
 16   from submerged and floating debris and trees that 
 17   have fallen victim to shoreline erosion.  
 18               The failure of Hydro in this process to 
 19   deal head-on with these devastating effects from 
 20   system impacts and that the end results of current 
 21   cumulative impacts of 28 years will further be 
 22   compounded with the effects from Wuskwatim. 
 23               We will now move on to some more 
 24   procedural matters.  During our presentation, we 
 25   attempted to provide the CEC with our knowledge of 
07528
  1   the land and how it has been drastically changed over 
  2   the years.  While attempting to do so, the following 
  3   comments were given by the CEC Chairman.  May 26, 
  4   2004, page 2462.  
  5                  "THE CHAIRMAN:  How much longer?  
  6                  MR. G. MCIVOR:  How much longer is it? 
  7                  About an hour and a couple of minutes. 
  8                  THE CHAIRMAN:  Well, if we're having 
  9                  to watch one way and then the other 
 10                  way back -- 
 11                  MR. G. MCIVOR:  No.  If you look at 
 12                  that little map we gave you, what they 
 13                  did was they went up -- there are 
 14                  three branches on the Ferguson Creek.  
 15                  So they are all different areas, just 
 16                  different routes that we use on our 
 17                  Trapline.  I'd really appreciate if we 
 18                  can view this video because it does 
 19                  form part of the evidence that you 
 20                  guys just made comments on, where it's 
 21                  an act of God, it's nature.  So let's 
 22                  enjoy the movie.  
 23                  THE CHAIRMAN: Well, you show it, I'll 
 24                  sleep." 
 25               While we appreciate that the CEC has the 
07529
  1   authority to rule on evidentiary matters and to 
  2   conduct the hearings as they see fit, it is our 
  3   submission that the video was important to establish 
  4   points later on in our presentation.  To convey to 
  5   the CEC our traditional knowledge, we chose to use a 
  6   very visual format and we were hoping that the CEC 
  7   would respect this.  The schedule had allotted us 
  8   three hours to present our evidence and we prepared 
  9   for two hours of our presentation followed by one 
 10   hour of questions from other participants.  It should 
 11   be noted that we finished well ahead of our time and 
 12   that we did not waste anyone's time.  
 13               I say this because during our 
 14   presentation, the Chairman noted that we were not 
 15   providing useful information, and I quote.  May 26, 
 16   2004.  
 17                  "THE CHAIRMAN:  Would you please begin 
 18                  with your presentation.  
 19                  MR. G. MCIVOR:  Yeah, after we -- all 
 20                  I'm viewing is evidence that's been 
 21                  filed with this Commission.  So I have 
 22                  some -- 
 23                  THE CHAIRMAN:  Maybe you should have 
 24                  viewed your film before.  
 25                  MR. G. MCIVOR:  I did and that's why 
07530
  1                  I'm showing it again because I think 
  2                  it's important that you see this.  
  3                  THE CHAIRMAN:  This is not useful, you 
  4                  know.  
  5                  MR. G. MCIVOR:  It isn't?  
  6                  THE CHAIRMAN:  No.  
  7                  MR. G. MCIVOR:  Well, if you've 
  8                  already made up your mind, it's not 
  9                  useful.  
 10                  THE CHAIRMAN: I'll show you what 
 11                  you've got to do.  MR. G. MCIVOR: 
 12                  Yeah, well, we'll talk about that." 
 13               Anyway, we are of the opinion that the 
 14   information we provided was useful and were along the 
 15   lines of what was expected of us.  We showed that the 
 16   overall landscape of Trapline 18 and from some of the 
 17   panoramic video segments, we showed that the 
 18   elevation north of Trapline 18 is not as severe as 
 19   contrary evidence has been led to illustrate.  We 
 20   attempted to provide the CEC with visual evidence to 
 21   show water flow fluctuations that, from our 
 22   traditional experience, is not natural.  We wanted to 
 23   show the CEC that while water does not flow uphill, 
 24   that there exists a possibility that water is 
 25   travelling through this marshy region north of 
07531
  1   Trapline 18.  And that further examination is 
  2   necessary.  
  3               We were dismayed by the Chair's comments 
  4   which gave the distinct impression that our 
  5   presentation was not being taken seriously and was 
  6   being prejudged and therefore not properly taken into 
  7   account.  Despite the Chair's comments, we hope that 
  8   the CEC will carefully consider all the evidence put 
  9   forward. 
 10               Number 3, respect.  It is also our 
 11   submission that at times, Trapline 18 was not taken 
 12   seriously throughout this process.  For example, 
 13   while we appreciate the enormous task the CEC has in 
 14   administering a hearing of this size, we want to 
 15   offer special thanks to Mr. Rory Grewar for his 
 16   support.  We felt it was a bad omen when the first 
 17   day of hearings, we walked in and found ourselves 
 18   without a seat or a chair at the hearings or a place 
 19   card.  This, however, is just the tip of the iceberg. 
 20   On March 15, '04, it was suggested that a helicopter 
 21   ride that was taken by Donald McIvor was sufficient 
 22   consultation for Trapline 18.  And I quote, page 
 23   1820.  
 24                  "THE CHAIRMAN:  I think the point that 
 25                  was made was that you asked about 
07532
  1                  consultations.  There was an 
  2                  undertaking to provide a date and 
  3                  name, and that is what was done, and I 
  4                  guess -- 
  5                  MR. MCIVOR:  That isn't accurate as it 
  6                  was.  I think the reference that Mr. 
  7                  Wojczynski was talking about had G. 
  8                  McIvor.  There is Geoff, George, 
  9                  Glenn, Geraldine, Grace.  It just says 
 10                  G. McIvor.  I mean, I don't go talk to 
 11                  Manitoba Lotteries about what Manitoba 
 12                  Hydro is doing.  
 13                  THE CHAIRMAN:  We will accept that, it 
 14                  was not as specific as you are saying. 
 15                  We will leave it at that.  
 16                  MR. SARGEANT:  Let's get this 
 17                  straight.  At least what Mr. 
 18                  Wojczynski told us was that Glenn 
 19                  McIvor was making inquiries about 
 20                  Trapline 18.  
 21                  MR. MCIVOR:  For whatever reason, you 
 22                  know, he might have picked all of that 
 23                  up through the discussions that we 
 24                  have had.  But not for 15 years with 
 25                  Manitoba Hydro.  I would like to put 
07533
  1                  that on the record, that that hasn't 
  2                  happened.  We have asked that question 
  3                  in interrogatories and -- 
  4                  MR. MAYER:  You got a free helicopter 
  5                  ride anyway.  MR. MCIVOR:  But, Mr. 
  6                  Mayer, it didn't take 15 years to go 
  7                  on that ride.  And there wasn't two 
  8                  free helicopters rides either.  I take 
  9                  exception to that, Mr. Mayer.  I think 
 10                  as a member of the CEC, you have to 
 11                  have some at least ability to be 
 12                  objective in this process.  
 13                  MR. MAYER:  Mr. McIvor, you had a 
 14                  significant amount of time.  I 
 15                  remember very clearly your 
 16                  presentation to the participants 
 17                  committee, and very specifically what 
 18                  you wanted to talk about.  Strangely 
 19                  enough it sounded very similar to that 
 20                  underground river and the height of 
 21                  water on Trapline 18.  Raised 
 22                  specifically, and you raised 
 23                  specifically, I have a clear 
 24                  recollection of this, Mr. McIvor, it 
 25                  is not a question of bias, it is a 
07534
  1                  question of I remember what you told 
  2                  me.  And what you told me is you were 
  3                  concerned about the underground, about 
  4                  the raise in the river or the water 
  5                  levels on the Trapline and how much 
  6                  that was costing you.  You were very 
  7                  specific about that.  And that sounds 
  8                  to me like exactly what your brother 
  9                  was discussing with Manitoba Hydro, 
 10                  and taking the one or two helicopter 
 11                  rides with them.  MR. MCIVOR:  But I 
 12                  think we also understand, Mr. Mayer, 
 13                  and I'm sure you are quite educated in 
 14                  this process being a lawyer, that, you 
 15                  know, you don't go and discuss 
 16                  somebody else's case without actually 
 17                  talking to the client, and that is my 
 18                  point exactly.  I don't go and talk to 
 19                  Manitoba Lotteries or anybody else 
 20                  about what Manitoba Hydro's business 
 21                  is, and I would appreciate the same 
 22                  respect.  And I think that is 
 23                  something that I have tried to work 
 24                  with you guys on this whole process.  
 25                  And being bumped here and there, you 
07535
  1                  know, like I said, I don't really want 
  2                  to have any ill feelings on either 
  3                  side, because we are just trying to 
  4                  participate." 
  5               Firstly, getting a free helicopter ride 
  6   is not what we were looking for in this process.  We 
  7   were looking for a full hydrological and 
  8   environmental assessment of the region.  While Mr. 
  9   Mayer might find this amusing, I am of the opinion 
 10   that the consultations and surveying issues are very 
 11   important to Trapline #18. 
 12               Secondly, I was told on more than one 
 13   occasion that my participation in this process was to 
 14   identify a water source from the Burntwood River 
 15   system to Trapline #18.  I have done that, to the 
 16   best of my ability, with limited resources.  However, 
 17   it was my understanding that this is a public process 
 18   and, therefore, I would have the opportunity to ask 
 19   questions of the proponent and the CEC.  I would also 
 20   like to state for the record that my brother, Glenn 
 21   McIvor, has written to the CEC to indicate that at no 
 22   time he was acting as a representative of Trapline 
 23   18.  His conversations with Manitoba Hydro were as a 
 24   resident of Manitoba and not as a liaison for 
 25   Trapline 18.  Any conversations he had with Manitoba 
07536
  1   Hydro staff should not be considered consultation 
  2   with Trapline 18.  I thought that was important for 
  3   the public record. 
  4               Another problem exists in that we were 
  5   promised certain materials.  And to this date, 
  6   nothing has been provided.  We had requested a list 
  7   of supplemental agreements so that we could examine 
  8   the different definitions of "adverse effects."  
  9   Nothing has been provided to me.  On March 15th, '04 
 10   the following was said, page 1798.  
 11                  "MR. MCIVOR:  Am I going to get some 
 12                  agreements on -- the 13 supplemental 
 13                  agreements?  
 14                  THE CHAIRMAN:  No, you were just told 
 15                  where you could get a copy of that 
 16                  agreement, from the mayor of Wabowden 
 17                  or council.  
 18                  MR. MCIVOR:  That is one of the 
 19                  agreement holders.  Manitoba Hydro 
 20                  signed the agreement.  Why wouldn't 
 21                  they have made it available?  
 22                  MR. ADAMS:  The agreements are not 
 23                  unilateral agreements, they are 
 24                  agreements between us and the various 
 25                  communities, and we are not in the 
07537
  1                  habit of papering the countryside with 
  2                  agreements between us and somebody 
  3                  else without at least discussing the 
  4                  relevance of it with the other party.  
  5                  In this particular case I think I just 
  6                  testified about ten minutes ago that I 
  7                  simply don't see the relevance to 
  8                  these proceedings of providing copies 
  9                  of implementation agreements, 
 10                  compensation agreements or other 
 11                  agreements with communities throughout 
 12                  Manitoba.  
 13                  MR. MCIVOR: I don't think it was 
 14                  throughout Manitoba. 
 15                  MR. ADAMS:  I did agree to give you a 
 16                  list and identify where in those 
 17                  agreements there would be -- what we 
 18                  were specifically talking about was 
 19                  the definition of adverse effects.  
 20                  MR. MCIVOR:  I think it was under the 
 21                  '96 implementation agreement with NCN 
 22                  that you identify that.  I acknowledge 
 23                  that, that you provided a definition 
 24                  that was in the agreement, one of your 
 25                  agreements.  So I wanted to find out 
07538
  1                  in these 13 other agreements how much 
  2                  did they vary, because you mentioned 
  3                  there is a variable in terms of how 
  4                  you describe or define adverse 
  5                  effects.  
  6                  THE CHAIRMAN:  I believe the question 
  7                  is how do you define adverse effects, 
  8                  and I believe the answer was provided 
  9                  the other day.  
 10                  MR. ADAMS:  The definition in the 
 11                  agreement with NCN was provided at the 
 12                  end of the day.  
 13                  MR. MCIVOR:  But that wasn't my 
 14                  question either.  My question was in 
 15                  order to look at the various 
 16                  agreements which Mr. Adams had 
 17                  indicated last week, there are 
 18                  variances from one agreement to the 
 19                  other in terms of the definition of 
 20                  adverse effects, and I was asking for 
 21                  copies of the agreements so that I can 
 22                  view the definitions of those adverse 
 23                  effects if there are differences.  
 24                  THE CHAIRMAN: Well, it is -- I have 
 25                  heard one thing so far and I don't 
07539
  1                  know how to allow you to proceed with 
  2                  that.  Because I have heard from Mr. 
  3                  Adams that you will not get copies of 
  4                  these agreements that are distributed 
  5                  by Hydro.  You will get a list.  Based 
  6                  on the list, you can then access those 
  7                  agreements and you can then compare 
  8                  how adverse effects are defined,  if 
  9                  you believe they are defined 
 10                  differently.  Unless someone from 
 11                  Hydro wishes to respond whether there 
 12                  are, and for what reason, there are 
 13                  differences in the interpretation of 
 14                  adverse effects.  
 15                  THE CHAIRMAN:  I will ask you, Mr. 
 16                  McIvor, have you got any additional 
 17                  questions that you want to ask at this 
 18                  time?  
 19                  MR. MCIVOR:  Not at this time.  I will 
 20                  just save that for the EIS portion and 
 21                  hopefully be able to frame it in that 
 22                  regard." 
 23               We would also like to point out that on 
 24   March 23, '04 hearings at the hearings in Thompson, 
 25   we were not allowed to continue our cross-examination 
07540
  1   of Mr. Fred Fitzner and Henry Garrick.  The evidence 
  2   that he was presenting was directly related to 
  3   Trapline 18 and seemingly not in his own words.  I 
  4   was merely trying to get clarification on some 
  5   consultation issues.  The transcript on page 3292 
  6   shows how this occurred.  
  7                  "THE CHAIRMAN:  What I see is you're 
  8                  having a little debate here and having 
  9                  a discussion.  
 10                  MR. MCIVOR:  I'm just asking a 
 11                  question on consultation.  
 12                  THE CHAIRMAN:  He answered.  
 13                  MR. MCIVOR:  If they had consultation, 
 14                  was it with who and who initiated the 
 15                  consultation?  
 16                  THE CHAIRMAN:  He said that you did.  
 17                  MR. MCIVOR:  Well, I'm not Manitoba 
 18                  Hydro or NCN.  THE CHAIRMAN:  No, but 
 19                  you discussed it and he said you 
 20                  brought him into it.  
 21                  MR. MCIVOR:  Well, I didn't do that.  
 22                  I want to apologize if I did.  
 23                  THE CHAIRMAN:  I think maybe, 
 24                  gentlemen, you'll get an opportunity 
 25                  to sit down and have a further 
07541
  1                  discussion on these issues.  We shall 
  2                  have a 15 minute break.  We'll be back 
  3                  here at five to 3:00.  
  4   
  5                  (PROCEEDINGS RECESSED AT 2:41 P.M. 
  6                  AND RECONVENED at 3:00 P.M.)  
  7   
  8                  THE CHAIRMAN:  Please take your place. 
  9                  We, as two-legged animals, have a 
 10                  tendancy of getting tired very 
 11                  quickly, therefore, it is time we find 
 12                  a chair so we can get comfortable to 
 13                  carry on here.  I call upon Mr. Leslie 
 14                  Baker."  
 15               It should be noted that during the March 
 16   15th session, an undertaking was to be carried out 
 17   regarding supposed meetings between Manitoba Hydro 
 18   and representatives of Trapline 18.  These have not 
 19   been provided either.  Page 1804.  
 20                  "(Undertaking number MH-41.  Advise 
 21                  date of consultation meeting and who 
 22                  from Trapline 18 was in attendance.)" 
 23               The preceding were a few examples of how 
 24   Trapline 18 feels it has not been taken seriously in 
 25   these hearings.  It was our thought that as a public 
07542
  1   forum, these hearings were an opportunity to present 
  2   evidence and viewpoints from various perspectives 
  3   regardless of how popular they may be.  Our 
  4   experience was to the contrary. 
  5               Finally on this issue, we would like to 
  6   point out that we were repeatedly told to address 
  7   some of our concerns in the EIS cross-examination.  
  8   We were never provided an opportune time to do so.  
  9   While it is recognized that we were asked to give a 
 10   cross-examination following our presentation, 
 11   unfortunately I was leaving out of town at this time. 
 12   In three months of hearings, I was not asked to come 
 13   forward with EIS questions until a couple of days 
 14   before these closing statements began.  
 15   Number 4, legal issues.  The parties to this CEC 
 16   process, including Manitoba Hydro, the Province of 
 17   Manitoba and the Federal Government, have failed to 
 18   adhere to the existing NFA agreements and are in 
 19   violation of their fiduciary responsibilities and 
 20   obligations. 
 21               I refer to the following provisions.  
 22   Article 23.2 of the NFA states, and I quote, 
 23                  "The onus shall be on Hydro to 
 24                  establish that the Projects did not 
 25                  cause nor contribute to an adverse 
07543
  1                  effect, where any claim arises by 
  2                  virtue of an actual or purported 
  3                  effect of the project."  
  4   Article 9.2 says, and I quote, 
  5                  "Hydro shall not make any decisions in 
  6                  respect of any future development 
  7                  unless and until a process of bona 
  8                  fide and meaningful consultation with 
  9                  the communities has taken place." 
 10               Together this means that under the NFA, 
 11   the onus is on Hydro to show that adverse effects 
 12   will not result from future development.  The onus is 
 13   not on any Aboriginal party to prove that existing or 
 14   future development would cause adverse effects. 
 15               I am sure that this CEC Commission will 
 16   be adhering to and referencing legislation under the 
 17   Environment Act.  
 18               Consultation issues.  It was submitted in 
 19   Heather Leonoff's presentation that the appropriate 
 20   venue for contesting or debating Section 35 
 21   consultation rights is in the courts.  It has also 
 22   been suggested that prior impacts from Hydro 
 23   development should also be settled in the courts.  
 24   While these are interesting arguments, it is our 
 25   submission that this Commission has the jurisdiction 
07544
  1   to consider both issues.  
  2               As a funded participant, and I know I 
  3   speak somewhat for other Aboriginal communities, the 
  4   fiscal commitment to launching a legal proceeding in 
  5   the courts are beyond our financial realities.  Our 
  6   financial resources were exhausted and, therefore, 
  7   our personal financial resources stretched to the 
  8   maximum to participate in this process and the idea 
  9   that we should initiate other legal processes through 
 10   the courts is impractical and unworkable.  
 11               Further, Ms. Leonoff's presentation was 
 12   legal argument dressed up as a witness's evidence.  
 13   It was inappropriate and should have been saved for 
 14   closing submissions. 
 15               Number 6, compare James Bay Agreement 
 16   with what Hydro is offering NCN.  I think it is 
 17   appropriate to examine the financial realities with 
 18   respect to the partnership between NCN and Hydro.  
 19   While we respect the decisions of the NCN community, 
 20   I think it should be noted some of the weaker points 
 21   of the partnership when examined in comparison with 
 22   other Hydro arrangements throughout Canada.  I should 
 23   also point out that we do not consider this new 
 24   evidence as aspects of the SOU between Hydro and NCN 
 25   have been discussed in these hearings. 
07545
  1               In Quebec, they are paying the Cree for 
  2   their resources, in the first year $23 million, in 
  3   the second year $46 million, thereafter $70 million.  
  4   And a fixed term of development of resource, 
  5   community centres built in each Cree community.  They 
  6   were offered electricity supplied to remote northern 
  7   communities, improved water and sewage treatment and 
  8   settlement of lands and settlement of outstanding 
  9   legal disputes, past wrongs, et cetera. 
 10               In Manitoba, it appears as though 
 11   Manitoba Hydro is loaning NCN $41 million to develop 
 12   NCN's resources.  No other Cree Nations or Aboriginal 
 13   communities have been offered partnership deals in 
 14   the Wuskwatim projects.  Furthermore, a community 
 15   centre is being built in Nelson House only and 
 16   Wuskwatim development runs into perpetuity.  
 17               There are no guarantees of improved water 
 18   or sewage treatment, no further settlement of 
 19   outstanding compensation issues, no discussions or 
 20   offers of supplying electricity to remote northern 
 21   communities and pre-training funding is provided but 
 22   jobs will evaporate after six years. 
 23               Also the majority of jobs are not trade 
 24   specific and the northern communities do not have 
 25   infrastructure to get the larger construction 
07546
  1   contracts.  Councillor Elvis Thomas admitted there 
  2   was only one construction company in Nelson House and 
  3   they would have to joint venture a contract in order 
  4   to help with the Wuskwatim construction, et cetera. 
  5                Ed Wojczynski has said that Manitoba 
  6   Hydro is confident that the deal being offered to NCN 
  7   is as good or better than Hydro development deals 
  8   being offered elsewhere.  Given what is being offered 
  9   to NCN people, is Mr. Wojczynski's claim valid?  
 10               Number 7.  We recommend that the CEC 
 11   examine the current licensing structure of the 
 12   Churchill River Diversion.  We have heard evidence 
 13   presented by a number of public participants that 
 14   indicates Manitoba Hydro has been operating the CRD 
 15   under an interim licence since May 1973.  Under 
 16   cross-examination, Manitoba Hydro representatives and 
 17   Mr. Steve Topping from the Water Stewardship Division 
 18   on April 13th indicated that they are still working 
 19   out the severance line pursuant to Section 19 of the 
 20   Water Power Act Regulations 25/88R.  This is a 31 
 21   year period under which Manitoba Hydro has not 
 22   finalized its licence as is a requirement under 
 23   Section 19(j).  We feel this is an unacceptable 
 24   amount of time to figure out the effects and nuances 
 25   of the Churchill River Diversion. 
07547
  1               In relation to Trapline 18, if it has 
  2   taken 31 years to fully realize the waterline and 
  3   environmental changes caused by the CRD, then surely 
  4   it cannot be impossible for the system to have a 
  5   negative impact on Trapline 18.  Hydro cannot make 
  6   this statement without a full geographical and 
  7   hydrological analysis of the region. 
  8               Through evidence presented by concerned 
  9   public participants, it was established that the 
 10   version of the Water Power Act, under which the 
 11   interim licence was originally drawn up, stipulates, 
 12   under Section 7(3)(a), that "no power generated in 
 13   Manitoba from any provincial water power shall be 
 14   exported across the international boundary."  
 15               While we realize that this section in the 
 16   legislation has been repealed, we wish to point out 
 17   that it was valid legislation the time the interim 
 18   licence was granted in 1973. 
 19               While we recognize that some of these 
 20   licensing suggestions are outside the purview of the 
 21   CEC, it would be prudent of the CEC to recommend to 
 22   the Minister that these matters be investigated.  
 23               On May 27, 2004, it was admitted during 
 24   direct examination that violations of the interim 
 25   licence had taken place but that Hydro had a higher 
07548
  1   moral responsibility to avoid public hazards.  A 
  2   violation of the law is a violation of the law 
  3   regardless of the justification.  We ask the CEC to 
  4   recommend to the province for a full review of the 
  5   control structures at Missi Falls and Notigi.  It is 
  6   ridiculous that Hydro has been left solely in charge 
  7   of both interpreting and monitoring conditions of a 
  8   licence that it received from the Provincial 
  9   Government.  Where is the impartiality? 
 10               What we would like the CEC to do.  
 11               Number i.  Heed the warnings made in the 
 12   Tritschler Report and slow down the construction of 
 13   Wuskwatim.  Hydro has not cleaned up or sufficiently 
 14   dealt with the mistakes that were made with past 
 15   projects, and yet here they are launching into 
 16   another development without learning from the past. 
 17               Number ii.  Listen to the concerns of the 
 18   people this will most affect.  These projects are not 
 19   being developed in the back yards of Winnipegers. 
 20               Number iii.  Read and analyze the 
 21   mitigation policies and plans that Hydro has recently 
 22   submitted to the DFO, determine if they are adequate, 
 23   where there are shortfalls and what needs to be done 
 24   to address this. 
 25               Number iv.  Make sure this review process 
07549
  1   is done right the first time.  Just because this is 
  2   the first time a review process like this has 
  3   happened does not mean that the bar should be 
  4   lowered.  In fact, the bar should be raised, as it 
  5   seems that further Hydro dams are on the horizon. 
  6               Number v.  To establish a joint resource 
  7   management process that will include, establishing 
  8   water quality monitoring, establishing wildlife 
  9   monitoring, establish hydrology monitoring, establish 
 10   environmental monitoring, establish global warming 
 11   monitoring, provide compensation for adverse effects 
 12   from previous Hydro developments and continuing 
 13   compensation for new effects.  
 14               Number vi.  Set in place mechanisms to 
 15   ensure that there will be direction and input from 
 16   Trapline 18.  
 17               Number vii.  That any future development 
 18   in Trapline 18 area will respect and recognize our 
 19   Aboriginal rights and privileges.  
 20               Number viii.  We are firm on the fact 
 21   that Trapline 18 must always be a full and equal 
 22   partner in planning for development in the Trapline 
 23   18 resource area. 
 24               Number 9.  What we have seen and heard in 
 25   this hearing.  People are concerned about this 
07550
  1   project, that's number i.  
  2               Number ii.  People feel they have been 
  3   left out of this process.  
  4               Number iii.  People who have tried to 
  5   participate have had to face some pretty intimidating 
  6   circumstances.  Many of these people have no 
  7   experience in a hearing or review setting.  They have 
  8   come from remote communities just to learn about 
  9   these projects that will directly affect them and 
 10   their children.  They have voiced their concerns, 
 11   even when faced with language and cultural barriers, 
 12   and they have still spoken to a room full of Hydro 
 13   lawyers, consultants and experts.  They have 
 14   addressed the CEC Panel and asked to be listened to.  
 15               Number iv.  There has not been an 
 16   information session given to any First Nation 
 17   community on how the CEC hearings will proceed or 
 18   what the process is for participation for elders or 
 19   members.  
 20               Number 10.  Closing.  To close things up, 
 21   I would like to reiterate that this is an 
 22   environmental assessment and review, where 
 23   environmental protection is supposed to be first and 
 24   foremost. 
 25               The fact that this is a smaller sized dam 
07551
  1   and that a low-head design has been chosen are 
  2   positive aspects of the design process.  Yet these 
  3   facts don't change the reality that the Wuskwatim dam 
  4   is going to be operated under the same system that 
  5   existed for 30 years.  This is the same system that 
  6   we believe has caused significant damage to Trapline 
  7   #18 and it is the same system that will continue to 
  8   do so under its current operation.  
  9               It has been stated several times that the 
 10   CRD and Lake Winnipeg Regulations are extremely 
 11   complicated systems that require great feats of 
 12   engineering.  As such, does it not make more sense to 
 13   err on the side of caution when dealing with an 
 14   addition to an already complicated system?  
 15               Who feels these effects most directly?  
 16   Not Hydro executives, not people in Winnipeg, not 
 17   people in Eastern Canada, not people in the U.S., it 
 18   is the Aboriginal people in Northern Manitoba.  It is 
 19   Don McIvor and Trapline 18 who will be left to carry 
 20   the added burden to suffer the cumulative effects and 
 21   costs. 
 22               We invite the CEC to find there is a need 
 23   for this project only after they have received all 
 24   the information.  We invite the CEC to find that the 
 25   costs of this project is not justified because while 
07552
  1   it is clear there will be environmental, social, 
  2   economic and human costs, there has been no 
  3   accounting of these.  If there ever was a case where 
  4   need did not justify the consequences, this is it. 
  5               Once again, we would like to thank 
  6   everyone who has participated in these hearings and 
  7   we thank the CEC for allowing us to express our 
  8   concerns.  Thank you very much. 
  9               THE CHAIRMAN:  Thank you, Mr. McIvor.  We 
 10   have another presentation from Boreal Forest to come 
 11   forth.  I believe we will have a short break before 
 12   you do.  
 13               MR. GREWAR:  Mr. Chairman, just before we 
 14   proceed then.  The submission, the closing statement 
 15   of Trapline 18 will be entered as T18-1003.  
 16   
 17               (EXHIBIT T18-1003:  Closing Statement of  
 18               Trapline #18)
 19   
 20               (PROCEEDINGS RECESSED AT 10:57 A.M. AND
 21               RECONVENED AT 11:12 A.M.)       
 22   
 23               THE CHAIRMAN:  I believe we're all ready 
 24   to carry forward.  Mr. Sullivan for the Boreal 
 25   Forest.
07553
  1               MR. SULLIVAN:  Good morning.  I'm here 
  2   today representing the Boreal Forest Network which is 
  3   a network of scientists, academics, indigenous 
  4   peoples and environmental organizations.  We are a 
  5   non-funded participant at these hearings.  
  6               My presentation is not written and I 
  7   would probably start by making a few general 
  8   observations and then move into some specific 
  9   recommendations for the Clean Environment Commission 
 10   to hopefully move those recommendations forward to 
 11   the Minister in their report.  And so with that, I'll 
 12   just start with my general observations.  
 13               I would like to state for the record and 
 14   address an issue that came before the Commission near 
 15   the beginning.  I was here one day when Chief 
 16   Primrose had accused environmental groups of being 
 17   economic terrorists and I would just like to state 
 18   for the record that I am not an economic terrorist.  
 19   And I think it was based on the assumption that it 
 20   was the environment community that somehow undermined 
 21   the trapping industry.  And it's unfortunate that 
 22   that allegation was certainly misdirected.  It was 
 23   not me, my colleagues or environmental groups that 
 24   flooded the north and certainly was the largest 
 25   contributing factor to the demise of the traditional 
07554
  1   economy in Northern Manitoba. 
  2               So with that general observation out of 
  3   the way, I would like to say a few things about this 
  4   process.  It was our organization's view that, and 
  5   still is our view, that we would have preferred a 
  6   different process.  The preferred process we would 
  7   have liked would have been a full federal panel 
  8   review of the Wuskwatim project.  There is a clear 
  9   absence of a federal presence in this room and 
 10   throughout this hearing process and clearly there are 
 11   federal jurisdictional issues here that are not being 
 12   addressed.  
 13               We have a failure in this process to do 
 14   real environmental assessments.  We have not 
 15   addressed the system's impact of Hydro.  What we have 
 16   is, by way of example, is trying to fix a motor 
 17   engine by changing the spark plugs when you actually 
 18   need to replace the engine.  
 19               So we reserve our involvement in the 
 20   Wuskwatim process and will be engaged in the 
 21   comprehensive review study that is now currently 
 22   under way by the Federal Government.  And once that 
 23   report is made public and the public has an 
 24   opportunity to comment, we will be doing so. 
 25               We will then and have continued to do and 
07555
  1   we will do this again once the report is made public. 
  2   We will request that the Minister conduct a panel, 
  3   federal panel review of the Proposed Wuskwatim 
  4   Project which will address the system impacts.  This 
  5   is possibly known as cumulative impacts. 
  6               So with that, we're also, and were stated 
  7   in the record, that we were not in favour of the 
  8   joint PUB/CEC process nor did we request it nor were 
  9   we consulted on that matter.  We would recommend that 
 10   the CEC recommend to the Minister that there should 
 11   be no further attempts to conduct such a high-bred 
 12   process.  And we also believe that there should be 
 13   much more independency in this process in terms of 
 14   the abilities of this Commission to undertake 
 15   independent research. 
 16               So we would hope that the fiscal 
 17   resources needed to do an independent assessment is 
 18   provided to the Commission in the future.  
 19               The other observation I would like to 
 20   make is a general observation is that we are told 
 21   apparently that this is supposed to be a process in 
 22   accordance with the Canada Manitoba Harmonization 
 23   Agreement on Cooperative Assessments.  Unfortunately, 
 24   the Federal Minister of the Environment had clearly 
 25   stated in a letter May 21st that this process is 
07556
  1   outside of that cooperative agreement.  And so we 
  2   would hope that that is taken into consideration. 
  3               I think on recommendations, I have a few, 
  4   hopefully not a lot, but a few that I do, I hope, are 
  5   a qualitative, and more of a qualitative person 
  6   rather than a quantitative person.  I think that the 
  7   Commission should not undertake its reporting 
  8   requirement to the Minister with a set of 
  9   recommendations for the Minister to approve or not 
 10   approve until certain things are -- certain parallel 
 11   processes that are under way regarding the Wuskwatim 
 12   project have been completed, number one.  That no 
 13   report should be forwarded to the Minister until the 
 14   comprehensive review by the federal assessment has 
 15   concluded so that this Commission can review the 
 16   comprehensive review and possibly take in 
 17   consideration what their findings have so that they 
 18   can also be included in any report that you prepare. 
 19               The second recommendation I think is is 
 20   that no report should be prepared until the Section 
 21   35 consultation processes have concluded.  And that 
 22   any report coming out of that consultation process 
 23   should be reviewed by this Commission and any 
 24   recommendations flowing from a report as a result of 
 25   the Section 35 consultation process should be given 
07557
  1   due consideration in your report to the Minister. 
  2               I also would think that it would be --  
  3   another recommendation that I would propose is that 
  4   your -- how can I best describe this?  Well, I'll 
  5   just attempt to do it.  The next recommendation is is 
  6   that there should be an ability for the participants 
  7   and stakeholders that are involved in this process to 
  8   receive notification of any potential undertakings by 
  9   Manitoba Hydro, once and if a licence is issued for 
 10   the Wuskwatim project, to be notified of any 
 11   deferrals that may be requested under the Act 
 12   absolving Manitoba Hydro from any undertakings that 
 13   may be required of them under the Act.  Currently 
 14   when a licence is issued, the proponents can simply 
 15   write to the Minister requesting that they be 
 16   absolved of certain undertakings in a licence and no 
 17   public notification needs to be given.  I think it's 
 18   incumbent that the participants know what Hydro will 
 19   be requesting in terms of requesting deferrals from 
 20   obligations that may be in the licence that may be 
 21   issued. 
 22               I think it would be incumbent upon this 
 23   Commission to recommend to the Minister that a 
 24   separate and independent body be established to 
 25   monitor Hydro and that Manitoba Hydro, in terms of 
07558
  1   their licence requirements, and not only for their 
  2   licence requirements, but have an obligation to 
  3   report on a yearly basis in terms of their fiduciary 
  4   obligations both under the Master Implementation 
  5   Agreement and the Northern Flood Agreement.  And that 
  6   they would be required to provide yearly reporting 
  7   mechanisms in terms of progress made on fulfilling 
  8   their fiduciary obligations under the Northern Flood 
  9   Agreement and the subsequent Master Implementation 
 10   Agreements. 
 11               I will defer from making a few more 
 12   recommendations and move to another observation.  I 
 13   think in terms of in this process that the proponents 
 14   have been treated much differently than the 
 15   participants and that fairness and equity was not 
 16   achieved in this process in terms of the 
 17   participants' abilities, whether they were funded or 
 18   non-funded, to have the necessary time to respond to 
 19   undertakings, interrogatories, et cetera.  And I 
 20   think this is indicative of a culture in Hydro which, 
 21   for far too long, have -- probably in fact haven't 
 22   viewed the government as a stakeholder in this 
 23   process.  That what we have here is a sacred cow.  
 24   And it baffles me.  
 25               This is the first time that Manitoba has 
07559
  1   had to go under public scrutiny for any of its Hydro 
  2   development processes and certainly there has, to 
  3   date, been no socioeconomic and environmental impact 
  4   assessment of Hydro's systems.  So an independent 
  5   watchdog I think would be a useful tool. 
  6               I would probably also like to recommend 
  7   that in their deliberations that if this is a 
  8   quasi-judicial body, and that's up to interpretation, 
  9   that there is at least a reasonable expectation that 
 10   there are fiduciary responsibilities that need to be 
 11   upheld and a process that needs at least clear sets 
 12   of rules.  And I think the CEC would be remiss in 
 13   this process to improve upon procedural rules in the 
 14   future Commission hearings and establish a set of 
 15   clear enforceable guidelines in terms of a process.  
 16   I know there are certain written procedural 
 17   guidelines and they certainly need to be enhanced 
 18   upon. 
 19               I think another recommendation which 
 20   would be of use in terms of your deliberations and 
 21   possibly writing the report is we need to figure --  
 22   there needs to be an attempt to explore undertakings 
 23   about the system impacts.  This is more than just 
 24   about one dam.  And there is a need to do the 
 25   cumulative assessment because the foundation of the 
07560
  1   Northern Flood Agreement, one cannot know where to go 
  2   in the future unless they have the information of 
  3   what happened in the past, and no undertakings to 
  4   date have sufficiently addressed that problem. 
  5               I would also say that, on a note, that 
  6   quite frankly from our view, there is really not a 
  7   necessary need or a justification to proceed with 
  8   Wuskwatim whatsoever.  And we don't think that 
  9   Manitoba Hydro has provided the basis and evidence 
 10   and enough sufficient data to convince me that they 
 11   need to build a 200 megawatt dam.  
 12               I think there was a real lack of 
 13   exploring potential alternatives, a real lack of 
 14   presenting a demand-side management program or a 
 15   policy.  I think there was a failure to explore 
 16   sufficiently enough climate change issues which will 
 17   definitely have an impact in Northern Manitoba.  I 
 18   would recommend to the Minister -- that you recommend 
 19   to the Minister that Hydro be mandated to come up 
 20   with a clear, concise climate change policy.  
 21               I wish I could, you know, recommend to 
 22   you that there needs to be, you know, a structural 
 23   change in Hydro but that's not your responsibility. 
 24               And finally, I think, because I'm not 
 25   going to take up much more time because I truly 
07561
  1   believe that my energies are going to be much better 
  2   spent in addressing the comprehensive review, that 
  3   there is a need to have more transparency on the part 
  4   of this Crown corporation when it comes to 
  5   information.  This is a Crown corporation and it 
  6   technically should be a bit more, oh, accountable 
  7   would be the word I would use, a little bit more 
  8   accountable than it currently is.  We have 
  9   information being gathered that is being gathered on 
 10   behalf of the Crown on Crown land and yet we have a 
 11   culture in Hydro of, well, secrecy.  It's very hard 
 12   to get information.  It's hard to get maps, it's hard 
 13   to get GIS information.  And quite frankly, as a 
 14   Crown corporation, that information should be made 
 15   readily available to the public. 
 16               So with that, I conclude.  Thank you.
 17               THE CHAIRMAN:  Ms. Avery Kinew. 
 18               MS. AVERY KINEW:  Thank you, Mr. 
 19   Sullivan.  If I could just ask a couple of questions. 
 20   Did the Boreal Forest Network take part in -- I think 
 21   Manitoba Hydro had a couple of years of meetings 
 22   monthly with environmental groups, were you part of 
 23   that?
 24               MR. SULLIVAN:  Yes, I was.
 25               MS. AVERY KINEW:  Leading up to -- 
07562
  1               MR. SULLIVAN:  Yeah.
  2               MS. AVERY KINEW:  Did you feel that that 
  3   was a good exchange, that it led to any exchanges in 
  4   the EIS?  You read the EIS, you saw the results?
  5               MR. SULLIVAN:  Yeah.  Certainly it was -- 
  6   that it was an exchange.  Whether the intent was 
  7   there in terms of a dialogue to come to some mutual 
  8   understanding of people's position is debatable.  I 
  9   think it was a scoping exercise on behalf of 
 10   Manitoba's part to figure out exactly where the 
 11   environment groups may position themselves in this 
 12   debate.  And so the flow of information, two ways, I 
 13   don't think was sufficiently there.
 14               MS. AVERY KINEW:  I keep asking this 
 15   question of different participants because I can't 
 16   understand.  Are you saying that transparency wasn't 
 17   there?  You asked for maps and things like that and 
 18   they weren't given at that time, too?
 19               MR. SULLIVAN:  Yes.
 20               MS. AVERY KINEW:  I see.  So you don't 
 21   feel the EIS responded to the concerns that your 
 22   group had?
 23               MR. SULLIVAN:  Well, to tell you the 
 24   truth, as a non-funded participant, I wasn't going to 
 25   siphon through.  I mean this was an exercise in 
07563
  1   quantity versus quality.  I mean generally, I 
  2   participated in pretty well almost every Clean 
  3   Environment Commission that has been in this province 
  4   in the last eight years for sure.  And it's quite 
  5   easily -- it's detrimental, in fact, to having the 
  6   public engage in reading 10, 20, 30 volumes of 
  7   material.  So there's a disadvantage.  An uneven 
  8   playing field right from the hop.  
  9               Surely, none of you are anywhere near 
 10   versed to pick apart all of the 20 volumes of 
 11   information that Manitoba Hydro has put before you.  
 12   And therefore, you rely, hopefully, on outside 
 13   expertise to guide you and summarize some of this 
 14   stuff.  I rely on, also, outside expertise.  But 
 15   generally, you have to pay for that.  And quite 
 16   frankly, to some degree, consultants get paid by the 
 17   page as opposed by the quality of the work.  So it's 
 18   a balance of quality versus quantity.  And quite 
 19   frankly, I think there are lots of areas where the 
 20   quality of information could be drastically improved 
 21   upon.
 22               MS. AVERY KINEW:  Thanks.  I just have 
 23   two more questions.  I hope you bear with me.  Was 
 24   there any attempt by environmental groups to kind of 
 25   share the load and say this is our, like the forests, 
07564
  1   you'd be the one to take that -- 
  2               MR. SULLIVAN:  I'm sure there was.  My 
  3   position and our organization position was clearly, 
  4   right from the start, was that we would have and 
  5   still prefer to participate in a federal panel 
  6   review.
  7               MS. AVERY KINEW:  Well, that leads to my 
  8   next question.  I didn't really get involved, I think 
  9   I was appointed in June or something.  I went to some 
 10   prehearing in July and there were two federal 
 11   representatives, the Department of Fisheries and 
 12   Environment and it's quite clear that the 
 13   harmonization process was being followed.  So I found 
 14   the letter of May 21st from the Minister of 
 15   Environment a big surprise.  I just want to say that 
 16   to you.
 17               MR. SULLIVAN:  Well, I don't find it a 
 18   surprise.  
 19               MS. AVERY KINEW:  I understood all along 
 20   that the feds had the opportunity but they were, in 
 21   their own way, agreeing to this process and how they 
 22   were going to use it.  Meegwetch, thank you.
 23               THE CHAIRMAN:  Mr. Nepinak.
 24               MR. NEPINAK:  Mr. Sullivan, just for 
 25   further verification, I think you mentioned Section 
07565
  1   35 of the report, it should be completed.  I wonder 
  2   if you can clarify that a bit for me?
  3               MR. SULLIVAN:  Okay.  Simply put, that 
  4   this Commission, once the hearings -- the public 
  5   component of these hearings conclude will have to 
  6   deliberate, write a report and submit it to the 
  7   Minister.  And then the Minister will decide to issue 
  8   a licence and what kind of undertakings and 
  9   responsibilities Hydro will have under that licence.  
 10   I would suggest that even before you deliberate about 
 11   how you're going to write a report, that that should 
 12   only commence once the Section 35 consultation 
 13   process has concluded, that a report has been 
 14   submitted, and that you have reviewed that report and 
 15   included the considerations that or any 
 16   recommendations or the content of that report in your 
 17   deliberations to write the report to the Minister.
 18               THE CHAIRMAN:  Mr. Mayer.
 19               MR. MAYER:  Sir, I have some concerns or 
 20   at least some misunderstanding obviously.  You say 
 21   you couldn't get the maps from Hydro.  But then you 
 22   say you didn't look at the volumes of material.  Now, 
 23   I'll give you some comfort, sir.  I read most of the 
 24   material.
 25               MR. SULLIVAN:  Good.
07566
  1               MR. MAYER:  And quite frankly, I found 
  2   the maps I was looking for in the material.  And if I 
  3   didn't know where they were in the material, I asked 
  4   and they were generally there.  So I have some 
  5   concerns when you make a recommendation about 
  6   process, you say you didn't get the material you want 
  7   but you didn't look at the material you got.  I mean 
  8   how can you justify that?
  9               MR. SULLIVAN:  Well, let me clarify my 
 10   statements and reiterate what I did say when Ms. 
 11   Kinew asked me the question here.  She asked me did I 
 12   participate in meetings with Hydro prior to any 
 13   commencement of this process and was there a sharing 
 14   of information?  And I said, well, yes, there was.   
 15   And I did ask for maps and never received them.  I 
 16   did not say I did not look at the maps in the 
 17   Environmental Impact Statement.  Those are two 
 18   separate things.  
 19               And what I'm getting to in terms of the 
 20   transparency of information, regardless if it's this 
 21   process, there is no process.  We're in a day and age 
 22   where maps and GIS systems and the information to 
 23   build GIS systems in terms of the data needed to 
 24   create shape files and create other maps out of 
 25   information based on those shape files can give you a 
07567
  1   different conclusion based on the values in which you 
  2   want to place on that map.  
  3               So having access to the shape files and 
  4   the data, that allows groups who have an interest in 
  5   expressing their values on a map differently than how 
  6   Hydro expresses those values is important.
  7               MR. MAYER:  All right.  Now I'm having a 
  8   little trouble understanding.  Exactly what kind of 
  9   maps were you looking for that you didn't get?
 10               MR. SULLIVAN:  Well -- 
 11               MR. MAYER:  Just give me any one example 
 12   so that at least I can understand what we're talking 
 13   about?
 14               MR. SULLIVAN:  Well, first of all, I'm 
 15   supposed to be doing my closing summaries.  I was 
 16   under no understanding that I was going to be asked 
 17   questions nor am I supposed to answer questions in a 
 18   closing statement.
 19               MR. MAYER:  I'm sorry, I am just trying 
 20   to clarify.
 21               MR. SULLIVAN:  Mr. Mayer, we can have 
 22   this conversation at some other point in time.
 23               MR. MAYER:  Thank you.
 24               THE CHAIRMAN:  Thank you very much, Mr. 
 25   Sullivan.  Mr. Grewar, do you have some undertakings 
07568
  1   or documents to file?  
  2               MR. GREWAR:  Yes, Mr. Chairman.  Just 
  3   before the lunch break, if you want, we could enter 
  4   some exhibits.  These are the undertakings that were 
  5   provided by Mr. Topping, Steve Topping of the 
  6   Manitoba Water Stewardship Department.  And I'll just 
  7   read into the record the exhibits and their numbers.  
  8   They will be assigned MC numbers although they are 
  9   filed by the Manitoba Water Stewardship Department, 
 10   however they don't have a series in this proceeding 
 11   and so we'll use the Manitoba Conservation series, 
 12   the MC series.  
 13               MC-1006 is undertaking MC-73, which is to 
 14   provide a copy of the provisions and conditions as 
 15   set out in the interim licence for the diversion of 
 16   water from the Churchill River to the Nelson River 
 17   and the impoundment of water on the Rat River and 
 18   Southern Indian Lake.  That will be MC-1006.  
 19   
 20               (EXHIBIT MC-1006:  Answer to Undertaking  
 21               MC-73, provide a copy of the provisions   
 22               and conditions as set out in the interim  
 23               licence for the diversion of water from   
 24               the Churchill River to the Nelson River   
 25               and the impoundment of water on the Rat   
07569
  1               River and Southern Indian Lake)  
  2   
  3               MR. GREWAR:  1007 will be undertaking 
  4   MC-74 which is advise what the circumstances are in 
  5   the regulations when a licence under the Water Power 
  6   Act is issued and what modifications can be made.  
  7   
  8               (EXHIBIT MC-1007:  Answer to Undertaking  
  9               MC-74, advise what the circumstances are  
 10               in the regulations when a licence under   
 11               the Water Power Act is issued and what    
 12               modifications can be made) 
 13   
 14               MR. GREWAR:  Exhibit number MC-1008 would 
 15   be undertakings MC-75 and MC-76 which are as follows: 
 16   Advise what statutes or regulations or changes have 
 17   taken place that fall under the term regulations of 
 18   the day for the Churchill River Diversion Interim 
 19   licence; and advise whether there have been any 
 20   amendments to the regulations since 1973.  
 21   
 22               (EXHIBIT MC-1008:  Answers to             
 23               undertakings MC-75 and MC-76 which are as 
 24               follows: Advise what statutes or          
 25               regulations or changes have taken place   
07570
  1               that fall under the term regulations of   
  2               the day for the Churchill River Diversion 
  3               Interim licence; and advise whether there 
  4               have been any amendments to the           
  5               regulations since 1973) 
  6   
  7               MR. GREWAR: Exhibit MC-1009 will be 
  8   undertaking MC-77, which was to provide information 
  9   regarding MMF, Manitoba Metis Federation, locals 
 10   being present at consultations to date under stage 2 
 11   of the consultation process.  
 12   
 13               (EXHIBIT MC-1009:  Answer to undertaking  
 14               MC-77, provide information regarding MMF  
 15               locals being present at consultations to  
 16               date under stage 2 of the consultation    
 17              process)  
 18   
 19               MR. GREWAR:  Exhibit MC-1010 will be 
 20   undertaking MWS, Manitoba Water Stewardship, 78 which 
 21   is to advise on the position whether Manitoba Hydro 
 22   is meeting requirements of Missi Falls Licence Regime 
 23   on a regular basis.  
 24    
 25   
07571
  1               (EXHIBIT MC-1010:  Answer to undertaking  
  2               MWS-78, advise on the position whether    
  3               Manitoba Hydro is meeting requirements of 
  4               Missi Falls Licence Regime on a regular   
  5               basis)  
  6   
  7               MR. GREWAR:  And finally, MC-1011 will be 
  8   undertaking MWS, that's Manitoba Water Stewardship 79 
  9   which is to advise if Hydro notifies Water Branch re 
 10   adverse impacts on community of South Indian Lake 
 11   each year.  
 12   
 13               (EXHIBIT MC-1011:  Answer to undertaking  
 14               MWS-79, advise if Hydro notifies Water    
 15               Branch re adverse impacts on community of 
 16               South Indian Lake each year)  
 17   
 18               MR. GREWAR:  So those are the exhibits 
 19   that we discussed this morning, Mr. Chairman.  All of 
 20   those that can be distributed electronically will be 
 21   and really all that won't be distributed 
 22   electronically to all the participants will be the 
 23   attached plans and maps which, as I say, will have to 
 24   be available through the Commission office for those 
 25   parties that wish to see them.  And if they contact 
07572
  1   our office, we'll make arrangements to provide them 
  2   in some form or fashion.  Thank you. 
  3               THE CHAIRMAN:  Thank you, Mr. Grewar.  
  4   Mr. Grewar, there is no other statements to be made 
  5   at this time?
  6               MR. GREWAR:  No, Mr. Chairman.  As far as 
  7   we know, that concludes the closing statements of all 
  8   the participant groups that so registered to make 
  9   those presentations.  The only outstanding matter 
 10   then is to hear from Manitoba Hydro/NCN for closing 
 11   statements.  I believe they had indicated they may 
 12   require up to three hours.  So presumably that would 
 13   be the forum for this afternoon.  
 14               MR. CHAIRMAN:  Thank you.  Just before we 
 15   adjourn for lunch, I want to make the observation and 
 16   I did so in regard to some other comments yesterday,  
 17   that some of these late filings or exhibits that are 
 18   being filed, for example yesterday and today, 
 19   obviously, I think it was CASIL that was asking, 
 20   there is opportunity to review those and comment to 
 21   the Commission in the first two weeks after the 
 22   adjournment of today.  
 23               So I realize that no one has had the 
 24   opportunity to look at those until now including 
 25   those that were filed yesterday.  But there remains 
07573
  1   the opportunity to do so in the two weeks after this 
  2   closing. 
  3               With that, we will now adjourn and 
  4   reconvene at one o'clock.  
  5   
  6               (PROCEEDINGS RECESSED AT 11:43 A.M.
  7                AND RECONVENED AT 1:00 P.M.)
  8   
  9               THE CHAIRMAN:  Ladies and gentlemen,
 10   can we take our places, please?
 11               I now call upon Manitoba Hydro/NCN to
 12   make their closing statements.
 13               MR. BEDFORD:  Mr. Chairman, it is our
 14   expectation that we will address you from where we
 15   sit.  If you would prefer that we move to the
 16   front, we could obviously do that, but if you
 17   don't object, we will simply address you from
 18   where we have done so from the last ten weeks.
 19               We will proceed as follows:  My
 20   colleague Ms. Matthews Lemieux will go first.
 21   Ladies always ought to go first.  I will follow
 22   her.  We will conclude as proponents with the
 23   Chief and Councillors of the Nisichawayasihk Cree
 24   Nation addressing you.
 25               THE CHAIRMAN:  Mr. Bedford, if there
07574
  1   is no good reason to do otherwise, for keeping the
  2   format the same, uniform, so that all the good
  3   people in the back can see your expressions and
  4   faces as you make your presentation, if it can be
  5   accommodated, we would prefer if you came to the
  6   front.
  7               Ms. Valerie Matthews Lemieux.
  8               MS. MATTHEWS LEMIEUX:  We are just
  9   waiting for a couple of the other members of Chief
 10   and Council to join us.  I was going to be
 11   speaking first, followed by my colleague,
 12   Mr. Bedford, and then members of Council will be
 13   speaking as part of our presentation.
 14               THE CHAIRMAN:  Is it possible,
 15   Ms. Lemieux, that you can begin and they can join
 16   you as they come in?
 17               MS. MATTHEWS LEMIEUX:  Yes, I can go
 18   ahead and start then while we are just waiting.
 19               THE CHAIRMAN:  Thank you.
 20               MS. MATTHEWS LEMIEUX:  If we could
 21   have a couple more minutes, and then I will start.
 22               MR. GREWAR:  Mr. Chairman, are we
 23   short of chairs up there?  Perhaps we could get
 24   more chairs?  How many -- I notice that --
 25               MS. MATTHEWS LEMIEUX:  Okay.  Thank
07575
  1   you very much Commissioners for giving us a few
  2   minutes to get organized.
  3               I would also like to take this
  4   opportunity at the outset to thank you for this
  5   patience throughout this very long process.  I
  6   would also like to thank you for the very
  7   thoughtful and insightful questions that you have
  8   asked throughout this process.  One of the
  9   difficulties, of course, with being last is that
 10   everybody is impatient to get out of the room.  So
 11   we would ask that everybody, including yourselves,
 12   be patient just a little while longer and we will
 13   be finished shortly.
 14               MR. SARGEANT:  We are imminently
 15   patient.
 16               MS. MATTHEWS LEMIEUX:  We are glad to
 17   hear that.
 18               As my colleague, Mr. Bedford,
 19   indicated, my task this afternoon is to provide an
 20   overview of where we have been over the last
 21   number of months in these proceedings.
 22   Mr. Bedford will then go through in some detail to
 23   highlight some of the issues, more substantive
 24   issues that are dealt with in our written argument
 25   which you should have received by now.  You will
07576
  1   be very glad to know that we don't intend to read
  2   all of those pages on to the record, but we will
  3   leave it for you to review.
  4               Followed by Mr. Bedford, there will be
  5   presentations and final submissions by Chief and
  6   Council.  And we have six members of Council with
  7   us today, five of the members of Council wish to
  8   speak and will be speaking.
  9               As all of you I am sure know, this has
 10   been a very challenging process for all of us,
 11   both personally and professionally.  It has been
 12   very challenging for the community consultants who
 13   take pride in their work, who have been gainfully
 14   employed throughout this process doing interesting
 15   work that we submit has been central throughout
 16   this entire process.  It has been very difficult
 17   for them to hear about their work being rejected
 18   as being inadequate.
 19               We hope that you will acknowledge
 20   their work and acknowledge the important role that
 21   they have played throughout this hearing process,
 22   and also throughout the entire development of the
 23   environmental assessment process.
 24               In addition, I would also like to
 25   acknowledge over and beyond their presentation
07577
  1   that was made on Monday, the important role that
  2   they had for me personally throughout this hearing
  3   process, as have had all of the members of the NCN
  4   Future Development Team, many of whom have
  5   provided technical expertise throughout our
  6   process, our Elder Sam Dysart, Ron Spence -- there
  7   are just so many, and I am not going to try to
  8   thank everybody individually because I am sure I
  9   will forget someone.  But your involvement in this
 10   process has been very, very important and ought to
 11   be acknowledged.  I would like to thank you for
 12   bringing forward all those little notes that you
 13   were handing me throughout the process about
 14   questions and various things to ask.
 15               It has also been a difficult and
 16   challenging process for the youth that appeared.
 17   It was difficult for them to come forward.  They
 18   are bright young minds.  They wanted to be able to
 19   make a presentation, and then their presentations
 20   were minimized, and their input was characterized
 21   as they were simply being used by Hydro.  That is
 22   not acceptable.  We want to indicate clearly on
 23   the record that Manitoba Hydro heard those
 24   presentations at the same time that you, as
 25   Commissioners, heard those presentations.
07578
  1               This has also been a difficult and
  2   challenging process for the many elders who have
  3   participated.  It is difficult for them to
  4   continue to live with the impacts of the Churchill
  5   River Diversion process.  It has also been
  6   difficult for them to watch what has often become
  7   a very torturous conflicted process involving
  8   multiple layers of politics.
  9               I also wish to acknowledge the
 10   difficulties and the challenges that people have
 11   had in terms of attending these many, many days of
 12   hearings in Winnipeg.  For those of us who live in
 13   Winnipeg or the vicinity, it has been much easier.
 14   But as Commissioner Mayer knows, these are
 15   situations where people have to be away from their
 16   families and their homes for long periods of time
 17   in order to participate in this process, and that
 18   ought to be acknowledged.
 19               Now, all of us cannot help but be
 20   moved by the heartfelt stories from Jimmy D.
 21   Spence, from Wellington Spence, and from others
 22   who have participated in this process, who have
 23   spoken about the effects and the impacts of hydro
 24   development on their lives.  One cannot help but
 25   be sympathetic to the impassioned plea for
07579
  1   recognition from Chris Baker.
  2               There is no doubt that the devastating
  3   impacts of hydro development, added to the
  4   misguided residential school problems, Government
  5   assimilation policies, and ongoing hydro
  6   development, have been difficult for many.  As one
  7   Elder said to me this week, how does one weigh
  8   whether impacts are worse from taking away all the
  9   children in a community, or from a project such as
 10   the Churchill River Diversion?
 11               With that in mind I thought back to
 12   Dr. Avery Kinew's comments on March 25th in The
 13   Pas, when she spoke about hurt, anger and mistrust
 14   and what has been done for healing.
 15               Throughout the course of this process,
 16   you have heard what the Nisichawayasihk Cree
 17   Nation has done to promote their own healing.  As
 18   you heard from Chief Primrose and as you have
 19   heard throughout from members of Council,
 20   including Councillor Elvis Thomas, NCN took
 21   positive action to resolve outstanding NFA
 22   matters.  They ultimately decided that no amount
 23   of money could ever be enough to compensate for
 24   past devastation, but they decided that it was
 25   necessary to move on.  They decided that they were
07580
  1   going to take a number of stepping stones that
  2   they viewed as individual stepping stones to their
  3   future prosperity.
  4               You have heard about how they started
  5   with the 1996 agreement, and they built on that in
  6   1998 when they resolved their outstanding Treaty
  7   Land Entitlement commitments.
  8               You heard about that when they
  9   purchased the Mystery Lake Hotel in Thompson, and
 10   how they have been building homes in their
 11   community in Nelson House, how they have been
 12   developing economic initiatives, developing a
 13   service industry, and pursuing other economic
 14   development, including the creation of an urban
 15   reserve in Thompson and the Wuskwatim project.
 16               These have all been constant,
 17   deliberate steps that have been taken by Chief and
 18   Council and the Nisichawayasihk people to improve
 19   the lives of their people now and in the future.
 20   This process was part of, this Article 8 process
 21   was part of the consideration, part of the
 22   compensation that the Nisichawayasihk people
 23   received in the 1996 agreement, and we must never
 24   forget that.
 25               People in NCN have been employed
07581
  1   throughout this process.  NCN has employed
  2   advisors to work with it, both from within the
  3   community and from outside the community.
  4               The deliberations of the NCN Future
  5   Development Team have played an important role.
  6   They have been integral to the entire process that
  7   we have been involved in for a number of years
  8   now, and for those of us involved in this hearing,
  9   for many months.
 10               For NCN, taking all of these steps
 11   have been methods of healing through the
 12   empowerment of their people, through inclusion,
 13   through pride in a job well done.
 14               And NCN has held its own against
 15   Manitoba Hydro in these processes and forged a
 16   relationship with them.  And they are, I would
 17   suggest, right to be proud of what they have done.
 18               They have influenced change through
 19   carefully considered, non-adversarial approaches.
 20   That is consistent, we submit, with their
 21   definition of traditional knowledge, which we have
 22   reproduced again for you on page 50 of our brief.
 23   I think it is very important to remember that
 24   NCN's definition of traditional knowledge -- and I
 25   am just going to refer to some of the parts of
07582
  1   it -- has been demonstrated throughout this
  2   process.
  3               Firstly, the observation and
  4   experience of the land, and we have heard
  5   throughout how NCN has considered this issue.
  6               It is the understanding of NCN's place
  7   in the world how things are connected, including
  8   spirituality and the relationship to the land.
  9   And you will hear more from Chief and Council
 10   about these issues, as with respect to the goals
 11   and aspirations of NCN.  Also, the outlook on the
 12   proposed projects, concerns that we may have, that
 13   NCN may have in the acceptability of the projects
 14   to NCN, and that is something, when you are
 15   formulating your recommendations, we hope that you
 16   will take into account.  It is how NCN looks on
 17   these projects, whether they are acceptable to
 18   NCN, and also what NCN's goals and aspirations
 19   are.  Those are a very important part, we submit,
 20   that ought -- or very important factors that ought
 21   to be taken into consideration in your
 22   recommendations.
 23               We think that rather than focusing on
 24   the sometimes hostile, sometimes critical, and
 25   very difficult process that has emerged through
07583
  1   this proceeding, that it is important instead to
  2   focus upon the remarkable achievement, the very
  3   fact that this First Nation is here with Manitoba
  4   Hydro as a co-proponent in relation to these
  5   projects.
  6               The true story, the real story that we
  7   ought to be focusing on is the ongoing development
  8   of capacity among NCN members.  It is how a
  9   community can decide it is time to move on, to put
 10   the past behind them, although obviously this is
 11   not a unanimous decision, and as members of
 12   Council have recognized, this is a democracy after
 13   all.  However, they have also made clear that they
 14   are not forgetting the lessons from the past.
 15   Remember the presentation from Jimmy D. Spence,
 16   remember the presentation from Wellington Spence,
 17   remember the wise words from Elder Sam Dysart
 18   throughout this process.
 19               What they are saying at the end of the
 20   day is that we want a different way of going
 21   forward.  We want a share of the benefits from our
 22   resources.
 23               We ask that you remember this while
 24   you are reviewing your mandate, which is set out
 25   in the terms of reference that you have from the
07584
  1   Minister.  Remember that your mandate is to review
  2   the areas that are set out in those terms of
  3   reference and to make recommendations whether the
  4   Wuskwatim projects should be licensed under the
  5   Environment Act, and if so, under what conditions?
  6               We have set out to assist you on pages
  7   96 and 97 of the brief, five points where we have
  8   summarized that we in fact believe that each of
  9   the factors have been considered by you, the
 10   Commissioners throughout this process, and that
 11   you ought to be satisfied that you can go forward
 12   and make a recommendation that Environment Act
 13   licenses should be issued.
 14               NCN has acknowledged throughout this
 15   process the dynamic debate about social and
 16   economic issues is healthy and that it welcomes
 17   such debate.  However, there has been much
 18   rhetoric from the opponents to the project.  But
 19   we submit there has been no credible evidence that
 20   would support a recommendation not to issue the
 21   Environment Act Licenses that NCN and Manitoba
 22   Hydro are seeking.
 23               I would like to just briefly review
 24   some of the participants' positions in these
 25   proceedings.  Firstly, there is a CAC/MSOS, which
07585
  1   we submit is really tacit support for both NFAAT
  2   and the EIS, although they do recommend at the end
  3   of the day that you ought to proceed with caution
  4   and due diligence.  And my colleague Mr. Bedford
  5   will be addressing some of the submissions that we
  6   receive after the oral presentation yesterday on
  7   the EIS.
  8               With respect to TREE, of course their
  9   position is somewhat contradictory to that of
 10   CAC/MSOS.  Again, we submit on the basis of the
 11   evidence before you that there really is no new
 12   evidence that has come forward from TREE that
 13   ought to prevent you from issuing this license --
 14   or recommending that this license be issued.
 15               With respect to Pimicikamak, there is
 16   no evidence that has been brought forward by the
 17   Pimicikamak Cree Nation that would put you in the
 18   position that you must conclude -- or must come to
 19   the conclusion, I should say, that the licenses
 20   ought not to be recommended.  I would ask that you
 21   carefully weigh Ms. Kempton's statements at pages
 22   2203 to 2204 of the transcript, where she
 23   indicated that she was happy that so much
 24   attention was being paid to Pimicikamak's U.S.
 25   Campaign of Truth, even in regard to witnesses who
07586
  1   are not here on behalf of Pimicikamak in any
  2   capacity.  I would ask you to consider that in
  3   light of the witnesses that you heard,
  4   particularly Timothy Rudnicki, Pimicikamak U.S.
  5   lobbyist, Will Gilmore, who you heard works for
  6   Pimicikamak, and that he first met Pimicikamak in
  7   Wisconsin during a dispute that NCN was also
  8   involved with over the Arrowhead line.  Senators
  9   Kubly and Anderson, and as you have heard, they
 10   have been sponsors of various Pimicikamak Just
 11   Energy and other U.S. environmental groups'
 12   legislation in the Minnesota Legislature, that NCN
 13   and TCN have also been involved in opposing.
 14   Steven Hoffman from the University of Minnesota,
 15   that was one of the papers that you were asked to
 16   read that came from the University of Winnipeg
 17   Conference, and of course, Dr. Peter Kulchyski,
 18   and my clients are going to be referring in more
 19   detail to some of the concerns in relation to his
 20   testimony.
 21               Furthermore, recall the link that was
 22   made at the September hearing, between Ken Bradly,
 23   ME3, the Just Energy Campaign in the United States
 24   and DRSIL and CASIL.  We submit those witnesses
 25   were all brought forward for purposes that were
07587
  1   completely unrelated to the issues and terms of
  2   reference that were before you.  And I will be
  3   referring in a few moments to the Minnesota Court
  4   of Appeal decision.
  5               In addition, there is a second
  6   category of witnesses that were offered by Ms.
  7   Whelan Enns, that was Mr. McCully, who I found
  8   actually personally to be an interesting witness.
  9   However, again, he didn't have an opportunity to
 10   really review any of the material in our
 11   proceedings, and was only able to provide you with
 12   very general information about the World
 13   Commission on Dams, which I can assure the
 14   Commission, my clients are very familiar with.
 15               There is also Mr. Bayne, Mr. Hornung,
 16   Mr. Soprovich and Mr. Nichols, and my colleague
 17   Doug Bedford will be referring to each of these in
 18   somewhat more detail.
 19               Again, they were generalist
 20   commentary, there were complaints that they had
 21   lack of access to materials.  From our perspective
 22   their reports were either late or there were no
 23   reports, and there was simply a disregard of the
 24   procedural rules that were established by this
 25   Commission.
07588
  1               We heard a litany of complaints about
  2   the lack of funding and overcapacity.  However, we
  3   were on the receiving end of over 2000 IR
  4   questions that we had to respond to in some
  5   fashion, and ensure that they were consistent,
  6   that they answered the questions, and we kept the
  7   process going.
  8               In addition to that, we also had, we
  9   as NCN, had several hundred more questions that
 10   were brought forward from DRSIL, from Carol
 11   Kobliski, from Reverend Hart.  Plus we had the
 12   ongoing questions from the community consultants,
 13   the ongoing small group meetings that are taking
 14   place as part of the overall process, and we had
 15   to respond to all of them.  We have done the best
 16   of our ability to ensure that there are answers to
 17   the questions that have been asked, and we will
 18   continue to attempt to respond to the questions
 19   that are being asked.
 20               There was a response, I believe it is
 21   Exhibit 1035, it is either 1025 or 1035, the
 22   response that Nisichawayasihk gave to Vern
 23   Anderson's letter that was referred to yesterday
 24   in their argument, and that was tendered in these
 25   proceedings, in addition to that.  So those
07589
  1   questions were all answered and the responses were
  2   filed in these proceedings.
  3               You also have the guidebook that is a
  4   compilation of the questions that came forward
  5   from the community meetings, from the community
  6   consultants, and from Ms. Kobliski, that were put
  7   into a format that was distributed to NCN members
  8   living in Nelson House, South Indian Lake, and
  9   elsewhere.
 10               There are many themes that you have
 11   heard throughout these many long weeks of hearing
 12   that are simply outside your terms of reference.
 13   I am going to just briefly refer to some of those
 14   themes.
 15               First you have heard about past hydro
 16   development unrelated to Wuskwatim, and you have
 17   heard about that in the context of active NFA
 18   claims.  There is an NFA arbitrator.  The NFA
 19   arbitrator is Madam Justice Krindle, who is one of
 20   the jurists, or was a jurist for a long time in
 21   this Province.  Those claims properly belong
 22   within the dispute resolution mechanisms under the
 23   Northern Flood Agreement.  They are not matters
 24   that are within your jurisdiction.
 25               You have also heard another theme,
07590
  1   whether in general the Manitoba Metis Federation
  2   is the only representative of Metis people in this
  3   Province.  Again, that is clearly beyond your
  4   jurisdiction to make a determination upon that
  5   issue, which is fraught with a number of complex
  6   legal and political issues.
  7               Another theme has been whether Hydro
  8   is in compliance with its existing licenses.  And
  9   you heard a presentation from CASIL on this point.
 10   That again, we submit, is beyond the scope of the
 11   terms of reference that are before you.
 12               You have also heard another theme, and
 13   that is whether Hydro paid adequate compensation
 14   for past adverse effects on South Indian Lake.
 15   Again, we submit that that issue is beyond your
 16   jurisdiction.
 17               You have also heard another theme,
 18   which is Hydro's general position on protected
 19   areas for Manitoba Wildlands.  Just on that point,
 20   I did note on the record when I was reviewing the
 21   transcript from Monday that Ms. Whelan Enns
 22   presented herself as only being here on behalf of
 23   Manitoba Wildlands.  I am not clear whether -- I
 24   know at the beginning the funded participant was
 25   Canadian Nature Federation, but I am not aware now
07591
  1   quite frankly who the participant is, whether it
  2   is Manitoba Wildlands or Canadian Nature
  3   Federation, and that might be something that
  4   perhaps ought to be clarified.
  5               The next theme is how Manitoba
  6   Conservation and CEAA maintain their registries.
  7   Again, you may be able to make some
  8   recommendations about this, but we would submit it
  9   is really beyond your terms of reference.
 10               You have heard plenty, more than you
 11   probably ever wanted to hear about the internal
 12   politics involved in the Nisichawayasihk Cree
 13   Nation.  Those internal politics that have been
 14   brought forward by DRSIL, CASIL, O-Pipon-Na-Piwin
 15   Cree Nation and others.  We also submit obviously
 16   that that is well beyond your jurisdiction, and my
 17   clients will deal with that in more detail
 18   momentarily.
 19               You have heard about the separation
 20   between Nisichawayasihk and O-Pipon-Na-Piwin.
 21   That again is beyond your jurisdiction to deal
 22   with.
 23               I would also bring to your attention
 24   that in addition to these number of themes that
 25   were repetitive throughout the hearings, there is
07592
  1   internal inconsistency in relation to a number of
  2   the positions that have been brought forward.  We
  3   draw to your attention, for example, CASIL's
  4   position, and we have tried to make some sense of
  5   it, but at this stage, as we understand the
  6   position, it is we are mostly NCN members, but we
  7   don't want to be NCN members, but we want to speak
  8   for ourselves, but we want all the rights and
  9   benefits of being NCN members, including the
 10   rights and benefits which we would not otherwise
 11   be entitled to if we were not NCN members.
 12               That is an inconsistency, and it is
 13   difficult, and it has been very difficult for us
 14   to listen to, and it has been very difficult I am
 15   sure for the Commission.
 16               All I can say on that point is it
 17   reminds me somewhat of the Sovereignty Association
 18   Debate that took place in Quebec.  I don't say it
 19   lightly, but hopefully we will have something
 20   maybe akin to a Clarity Act arrangement so we will
 21   get some definitive statement on this particular
 22   issue in the future.
 23               You have also heard from
 24   O-Pipon-Na-Piwin Cree Nation that it wants a share
 25   of the Wuskwatim project, that it speaks for
07593
  1   itself.  However, in the 1995 Memorandum of
  2   Understanding, which you have before you as an
  3   exhibit from the motion, it was indicated that
  4   South Indian Lake would keep their monies under
  5   the CASIL agreement, and NCN would retain their
  6   benefits under the 1996 agreement upon separation.
  7   None of the parties before the Clean Environment
  8   Commission, including you as Commissioners, can
  9   resolve those issues.  They are clearly beyond the
 10   scope of your mandate, and they are matters that
 11   will have to be dealt with in separate processes
 12   between Nisichawayasihk and the O-Pipon-Na-Piwin
 13   people.
 14               Then you heard another inconsistency
 15   from DRSIL and the Justice Seekers of NCN.  What
 16   they are calling for is supervised elections by a
 17   third party.  We would point out that this is very
 18   much an internal inconsistency, given that these
 19   are the same people who have appeared in front of
 20   you and who have taken exception to the fact that
 21   a third party, namely the Federal Court of Appeal
 22   in this case, upheld the election of Chief and
 23   Council pursuant to the election code.
 24               MR. MAYER:  The Court of Appeal -- I
 25   thought the Federal Court of Appeal was
07594
  1   withdrawing, or dismissed for failure to pursue
  2   it?
  3               MS. MATTHEWS LEMIEUX:  That's right.
  4   You have all of those documents in front of you.
  5               Again, my point is simply that there
  6   is an internal inconsistency saying that we should
  7   have self-governance, we should have a third party
  8   supervise, but then not where there is a third
  9   party under an election code that has been
 10   approved by the Nisichawayasihk people saying,
 11   well, we are not going to accept the outcome of
 12   that supervision by the courts.
 13               Then I noted with interest actually,
 14   the TREE submission, in particular their
 15   recommendations.  And you will note that there is
 16   a theme of unfinished business, it is like a
 17   slogan a bit throughout their final comments.  The
 18   only thing that I would point out here, and partly
 19   in jest, but partly seriously, is that that was
 20   not a good slogan for the Blue Bombers two years
 21   ago, and we will submit that it will not prevail
 22   here either.  Although, we do want to say that we
 23   welcome the professional and responsible
 24   participation of Mr. Miller and his expert in
 25   these proceedings.  Nisichawayasihk will be
07595
  1   pursuing some of these initiatives further in
  2   relation to DSM.  There were some very thoughtful
  3   issues that were raised.
  4               With respect to the Manitoba Metis
  5   Federation, we want to acknowledge the political
  6   difficulties facing Mr. Chartrand and his
  7   colleagues.  We understand the fight for
  8   recognition of rights.  We understand that it is a
  9   difficult and ongoing process, but that does not
 10   mean in our acknowledgment that we understand how
 11   difficult it is to pursue those rights that those
 12   arguments ought to be accepted by you.  And we
 13   have set out our response in much more detail in
 14   our written submission, and my colleague,
 15   Mr. Bedford, will be dealing with this in greater
 16   detail.
 17               At the end of the day, the conclusion
 18   that you are left with by the EIS panel was that
 19   there would be no change in their conclusions
 20   because there was no pathway.  And we would ask
 21   that you have regard to the evidence that is
 22   before you in considering these issues.
 23               With respect to CASIL and the MMF's
 24   position that there is an obligation on the
 25   proponents to educate ourselves about -- and
07596
  1   essentially it was you are to educate yourselves
  2   about us and our issues, even if we are
  3   non-responsive to your invitations to meet, and
  4   the response seems to be, well, try harder, and
  5   find a way, the obligation is on you.  I submit to
  6   you that that simply is not a tenable or
  7   reasonable argument that can or ought to be
  8   sustained.  In essence, they are seeking an
  9   equitable remedy, but, again, the facts
 10   demonstrate they have not come before you with
 11   clean hands.  There were in fact steps taken where
 12   there were either obstruction of the process,
 13   attempts to frustrate the process, or there was
 14   failure to respond.  Again, in our submission, you
 15   will see that there is reference to the cases and
 16   the case authority that indicates that parties
 17   cannot claim, cannot fail to respond, cannot
 18   engage when they are provided with an opportunity
 19   to do so, and then claim failure to engage in any
 20   meaningful consultation so as to thwart the very
 21   issuance of, or in this case the recommendations
 22   for Environment Act Licenses.  That would simply
 23   be unfair, unreasonable, and ought not to be
 24   accepted.
 25               We hope that you will recommend the
07597
  1   Wuskwatim project be approved.  As we have said,
  2   to do otherwise would be simply unfair and not
  3   connected to the evidence, given all of the very
  4   many days of hearings that you have had before
  5   you.
  6               There have been many opportunities,
  7   and Commission counsel has ensured that where
  8   participants did not challenge the evidence, that
  9   those challenges were undertaken to the evidence.
 10   They were tested.  Our evidence that we brought
 11   before you was thoroughly tested, we submit, in
 12   many, many days of hearings.
 13               We also would suggest that it is
 14   important that those who have fostered unfounded
 15   controversy and conflict throughout this process
 16   should not be unduly rewarded, as it can lead to
 17   an empowerment of a very small vocal minority
 18   which does not represent the goals and aspirations
 19   of a majority of the community in this case.
 20   While it is important to obtain a balance, you
 21   cannot, we submit, and ought not to give undue
 22   weight to that conflict and fostering of
 23   controversy that has been an underlying theme in
 24   these proceedings.
 25               I would just like to make a few more
07598
  1   points in summary.  One of the activities, of
  2   course, and we have all heard lots of rhetoric
  3   throughout these proceedings, is that rhetoric
  4   raises impossible expectations, but it does
  5   nothing to foster meaningful dialogue.  It does
  6   nothing to foster consideration of the real issues
  7   that are before you.  And it is important to note,
  8   we submit, that the critics of the Wuskwatim
  9   proposals have offered no reasonable alternatives.
 10               You have heard about the Quebec Peace
 11   of the Braves Agreement, and Chief Primrose will
 12   refer to that in more detail.  However, we have,
 13   through the evidence that we have submitted before
 14   you, demonstrated that the Quebec agreement is not
 15   a true comparison.
 16               Ultimately, the position that is
 17   recommended to you by the critics and the
 18   opponents to the Wuskwatim project is stop the
 19   project until all out of scope issues can be dealt
 20   with.
 21               The complete answer to those
 22   submissions, we suggest is found in the Minnesota
 23   Court of Appeal decision which we filed as
 24   Manitoba Hydro/NCN exhibit 1029, on the last page
 25   of that decision.  What the Court said there
07599
  1   was -- and remembering it was dealing with many of
  2   the same parties involved in proceedings in
  3   Minnesota for a number of years, and all of the
  4   history of those proceedings are reviewed, and of
  5   course those proceedings also involved Manitoba
  6   Hydro and the Nisichawayasihk Cree Nation and
  7   Tataskweyak Cree Nation, as well as Pimicikamak.
  8   What the Court said is that it has to be pointed
  9   out that the realtors, and the realtor was
 10   referring to Pimicikamak,
 11               "The realtors real agenda is not a
 12               contested case hearing because a
 13               hearing does not accomplish anything.
 14               What realtor wants to accomplish is
 15               hopefully to block X-cel Energy from
 16               buying power.  If that happens, the
 17               loss of that contract will put
 18               economic pressure on Manitoba Hydro to
 19               satisfy realtors' compensation issues
 20               which, if settled, would then not
 21               interfere with Manitoba Hydro
 22               contracting with X-cel Energy.  In
 23               essence, this lawsuit by realtor is a
 24               collateral end run around the NFA
 25               which contains within its four corners
07600
  1               realtors' remedies."
  2               We would submit that in response to
  3   many of the out of scope issues that have been
  4   brought before you, there is an NFA process, there
  5   is an NFA arbitrator, as I have indicated, one of
  6   the eminent jurists in this Province is now the
  7   NFA arbitrator.  That is the jurisdiction in which
  8   those matters ought to be addressed.
  9               The court goes on and says:
 10               "The environmental and socioeconomic
 11               impacts caused by the Manitoba
 12               project..."
 13   and there they were referring to CRD, Lake
 14   Winnipeg Regulation,
 15               "... are capable of being addressed
 16               under the NFA.  It is possible there
 17               are merits to realtors' claims for
 18               compensation and for more attention to
 19               their needs.  That issue is not before
 20               us."
 21   We submit that is an issue, again, that is under
 22   the Northern Flood Agreement.
 23               NCN requests that you recommend, as I
 24   have said, that the Minister of Conservation issue
 25   the Environment Act Licenses.  NCN also requests
07601
  1   that if you recommend that the licenses be issued,
  2   that you carefully consider the recommendations
  3   that you will make in relation to the second part,
  4   second step -- or I should say, the second part of
  5   your mandate that is set out in the terms of
  6   reference.
  7               NCN would like to recommend -- would
  8   like the CEC to recommend that there be continued
  9   incorporation of traditional knowledge and local
 10   knowledge throughout the project construction and
 11   post project periods.
 12               NCN is also supportive of ongoing
 13   monitoring and research within its Resource
 14   Management Area, as has been indicated throughout
 15   this process.
 16               We also hope that the Commission will
 17   reflect upon its own procedures, and in
 18   particular, the IR process, and whether in fact
 19   there cannot be better ways to deal with
 20   repetition, duplication in the questioning that
 21   occurred throughout the course of this process, so
 22   that there will be a balance between the rights of
 23   the proponents who come before you, as well as a
 24   need for the public to participant actively in
 25   these processes.
07602
  1               We hope that you will also consider
  2   the comments about the documentation, and in
  3   particular what we heard this morning, well, there
  4   was too much documentation.  Part of the problem,
  5   of course, that we as proponents faced was that so
  6   much of the documentation ended up evolving as a
  7   result of the many, many questions, over 2000
  8   questions, that we were asked, as well as the
  9   requests for further information that continued to
 10   arise throughout these proceedings.
 11               The difficulty that we have faced is
 12   that in trying to be responsive, we are now being
 13   criticized for providing too much information to
 14   the various participants.  We submit that that is
 15   another inconsistency that is found throughout the
 16   various presentations.
 17               I am now at the end pretty much of my
 18   submission.  I would like to, however, take a few
 19   moments to thank a number of other participants in
 20   these proceedings.  First, I would like to thank
 21   all of the participants who did participate,
 22   including CASIL and O-Pipon-Na-Piwin Cree Nation
 23   and others.  I think it takes time and effort and
 24   I think it has been a better process.
 25               I would like to thank the Hydro team,
07603
  1   and also Environmental Management Team, not just
  2   the four people on the panel, but all the
  3   specialists who are in the background who are
  4   helping as we prepare.  I appreciate their
  5   diligence, their cooperation, their ability to
  6   find solutions to bridge the gaps between two very
  7   difficult clients -- different, I shouldn't say
  8   difficult -- different clients.  It was very
  9   difficult.  As Councillor Thomas reminds me, they
 10   can be difficult clients.  I would also like to
 11   thank the co-counsel who have been involved, my
 12   colleague, Elliot Leven from my office, as well as
 13   Bob Bettner, Bob Adkins, Sheryl Rosenberg, and of
 14   course Doug Bedford.  It is very difficult when
 15   you are thrown into a situation where you have to
 16   really be able to work together in these kind of
 17   circumstances, and I really think that people have
 18   done that well, and I think that should be
 19   acknowledged.
 20               In addition to that, it has of course
 21   been a challenge working so closely with others,
 22   not only given the diverse views among so many
 23   different people that have been working together
 24   as part of our ongoing team, but through each of
 25   the various layers of politics that you have been
07604
  1   exposed to.  However, we really are proud of this
  2   team.  They came together as part of a cohesive
  3   one team, we became one team throughout this long
  4   process, and that's been a strength and an
  5   achievement we submit that ought to be
  6   acknowledged.
  7               In addition, on behalf of Campbell
  8   MacInnes, who is our consulting engineer for NCN,
  9   Bruce Hecky and Bob Letterman, who are our
 10   financial and business analysts, myself, we would
 11   like to thank Chief and Council and the Future
 12   Development Team, the community consultants, and
 13   the individual members of NCN who have shown
 14   ongoing confidence in us over the years as we have
 15   worked our way, not just through this process, but
 16   when we started way back in 1991, when we were
 17   first looking at a commercial fishing settlement,
 18   when we were looking at claim 38 and how to move
 19   forward and try and go into a comprehensive
 20   resolution of all of the outstanding claims.  We
 21   really appreciate the confidence and the privilege
 22   we have been given in being able to work with you
 23   over this long period of time.  It cannot be, I
 24   don't think, understated how important it is to be
 25   able to have had the privilege of being invited
07605
  1   into the homes of so many of the NCN members, to
  2   meet spouses and children and grandchildren and
  3   grannies and grandpas and cousins and aunts and
  4   uncles, and to listen and learn and support their
  5   efforts to become self-governing and
  6   self-sufficient.  So with that, I thank you.
  7               Mr. Bedford.
  8               MR. BEDFORD:  Having listened to a
  9   particular argument on Monday of this week, I have
 10   decided to start by giving you the bad news first.
 11   I am not going to offer you a raise.
 12               I will not, as you have heard, read
 13   the lengthy argument that we have prepared.  Warn
 14   you as well that what I am about to say isn't
 15   really going to parallel what is in that written
 16   argument either, so there is little point trying
 17   to follow by looking at the written argument.
 18               However, I commend it to your
 19   attention.  A lot of hard work went into preparing
 20   that document, and in the end result what is in
 21   there is likely a lot more important than what I
 22   am about to say, and I rather suspect that what I
 23   am going to say over the next hour is not going to
 24   be long remembered.
 25               However, from my personal perspective,
07606
  1   the approach I am taking this afternoon has the
  2   advantage to me that that wonderful group of
  3   people who has surrounded me for the last ten
  4   weeks has not had an opportunity to firm and shape
  5   what I am about to say.  Accordingly, this is
  6   going to be a lot more exciting for them.  Having
  7   just listened to Ms. Matthews Lemieux, I realize
  8   regrettably there has been inadequate liaison with
  9   my co-counsel on what I am about to say, so this
 10   is going to be much more exciting for her as well.
 11               Conversely, to trade on a remark that
 12   my friend Mr. Byron Williams used yesterday, this
 13   approach also makes my future at Manitoba Hydro
 14   "fraught with uncertainty."
 15               For some ten weeks now my witnesses
 16   have had to endure the not always pleasant
 17   experience of watching and listening to all of the
 18   written material they put before you being put
 19   under a microscope and being criticized day after
 20   day.  And I, and we here today are very conscious
 21   that we have now arrived at the time where it is
 22   your turn to sit down and start writing.  I am
 23   sure you do so with some trepidation that all of
 24   us will eventually look with very critical eyes at
 25   what you choose to write.  My only regret is that,
07607
  1   of course, we will have no opportunity to have you
  2   sit where I am sitting and to begin asking you
  3   questions.
  4               I see it as my practical role as a
  5   lawyer to review with you at this time some,
  6   because I don't have time to review them all, of
  7   the issues and the evidence that have been put
  8   before you over ten weeks.  I will make a modest
  9   effort to sort what I think you heard from what
 10   some people are already beginning to think you
 11   heard.  I noted with interest yesterday that
 12   already some participants are convinced that
 13   certain things are not on the record when, of
 14   course, they are.  It is my hope that I can assist
 15   you to some degree in answering the question why,
 16   why ought you to recommend the Wuskwatim projects.
 17               Mr. Williams, in looking at the need
 18   for and alternatives evidence and documents, tells
 19   you that the record of what my client and the
 20   Nisichawayasihk Cree Nation propose is "fraught
 21   with uncertainty."
 22               Well, I say in reply that of course
 23   the future is always uncertain, but in this case I
 24   say that this future is not fraught with
 25   uncertainty.  When you propose a new project, you
07608
  1   of course have to deal with uncertainty, some say
  2   with risk, and you do that if you are a business
  3   person by using a variety of tools that business
  4   planners know well.  You use IRRs, internal rates
  5   of return, and if you plan at Manitoba Hydro, you
  6   use something that was described as the SPLASH
  7   model.  You use and test your plans with
  8   sensitivities.  You engage an outside consultant,
  9   this time it was Booth Belle Robb, to tell you
 10   whether or not the estimating techniques that you
 11   are using are sound.  You use four independent
 12   forecasts to assist in determining the export
 13   price, because the export price is vital in the
 14   project that you are proposing.  You also do a
 15   series of pro forma financial statements for
 16   Manitoba Hydro, because you want to know how, if
 17   you incur the costs of building this dam, if you
 18   incur the expense of borrowing the money to build
 19   the dam, because most of this billion dollars that
 20   people talk about will in fact be m