1885 1 2 MANITOBA CLEAN ENVIRONMENT COMMISSION 3 4 VERBATIM TRANSCRIPT 5 Volume 8 6 7 Including List of Participants 8 9 10 11 Hearing 12 13 Wuskwatim Generation and Transmission Project 14 15 Presiding: 16 Gerard Lecuyer, Chair 17 Kathi Kinew 18 Harvey Nepinak 19 Robert Mayer 20 Terry Sargeant 21 22 Tuesday, March 16, 2004 23 Radisson Hotel 24 288 Portage Avenue 25 Winnipeg, Manitoba 1886 1 2 LIST OF PARTICIPANTS 3 4 Clean Environment Commission: 5 Gerard Lecuyer Chairman 6 Terry Sargeant Member 7 Harvey Nepinak Member 8 Kathi Avery Kinew Member 9 Doug Abra Counsel to Commission 10 Rory Grewar Staff 11 CEC Advisors: 12 Mel Falk 13 Dave Farlinger 14 Jack Scriven 15 Jim Sandison 16 Jean McClellan 17 Brent McLean 18 Kyla Gibson 19 20 Nisichawayasihk Cree Nation: 21 Chief Jerry Primrose 22 Elvis Thomas 23 Campbell MacInnes 24 Valerie Matthews Lemieux 25 1887 1 LIST OF PARTICIPANTS 2 3 Manitoba Conservation: 4 Larry Strachan 5 6 Manitoba Hydro/NCN: 7 Ed Wojczynski 8 Ken Adams 9 Carolyn Wray 10 Ron Mazur 11 Lloyd Kuczek 12 Cam Osler 13 Stuart Davies 14 David Hicks 15 George Rempel 16 David Cormie 17 Alex Fleming 18 Marvin Shaffer 19 20 Community Association of South Indian Lake: 21 Leslie Dysart 22 Merrell-Ann Phare 23 24 CAC/MSOS: 25 Byron Williams 1888 1 LIST OF PARTICIPANTS 2 3 Canadian Nature Federation/Manitoba Wildlands: 4 Eamon Murphy 5 Gaile Whelan Enns 6 Brian Hart 7 8 Time to Respect Earth's Ecosystems/Resource Conservation Man: 9 Peter Miller 10 Ralph Torrie 11 12 Trapline 18: 13 Greg McIvor 14 15 Displaced Residents of South Indian Lake: 16 Dennis Troniak 17 18 Environment Approvals (Manitoba Justice): 19 Stu Pierce 20 21 Presenters: 22 Billy Moore - Private 23 Bill Turner - MIPUG 24 Caroline Bruyere - Private 25 Grand Chief Margaret Swan - Southern Chiefs 1889 1 LIST OF PARTICIPANTS 2 3 Presenters: 4 Peter Kulchyski 5 Patrick McCully 6 Timothy Rudnicki 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1890 1 2 3 INDEX OF EXHIBITS 4 5 Number Page 6 7 CNF 1000: Correspondence received by 8 the CEC from CNF regarding process 1920 9 CNF 1001: Letter of presenters and 10 background presentation area 11 from CNF dated March 2, 2004 1920 12 CNF 1002: Letter of presenters and 13 background presentation area 14 from CNF received March 11, 2004 1921 15 CNF-1003: Overhead slide presentation, 16 report of the World Commission 17 on Dams, remarks and its relevance 18 in the Manitoba context 2060 19 CNF-1004: Mr. Rudnicki's 20 PowerPoint slide presentation 2177 21 CNF-1005: Mr. Rudnicki's typed 22 submission re Proposed Wuskwatim 23 Generation & Transmission Project 2178 24 MH/NCN 1011: Letter, May 25, 2001 2157 25 1891 1 2 INDEX OF UNDERTAKINGS 3 4 UNDERTAKING NO. PAGE 5 6 MH/NCN 42: Produce letter from Law 7 Society 2163 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1892 1 TUESDAY, MARCH 16, 2004 2 Upon commencing at 9:36 a.m 3 4 THE CHAIRMAN: Mrs. Gaile Whelan Enns, will 5 you please take the front table. And as we begin, 6 we would like for you to respond to the memo of March 7 12th, which you got from Hydro I believe. 8 MS. WHELAN ENNS: Good morning. There is a 9 memo to the Secretary of the Clean Environment 10 Commission as of the end of the day yesterday in 11 response to both scheduling questions and the 12 Manitoba Hydro memo. 13 THE CHAIRMAN: Yes. Would you tell us what 14 that is about. 15 MS. WHELAN ENNS: Sure. Thank you. For the 16 public in the room and for other participants in the 17 room, we had a combination of challenges in respect 18 to scheduling presenters, most of whom are 19 volunteers. Okay. I'm going to -- just because that 20 maybe needs to be said the second time. Most of the 21 presenters or witnesses, if one chooses to use that 22 word, that we have approached to participate in these 23 hearings are volunteers. I was asked last night what 24 the proportion was. I think there are at this point 25 only three that are contractors and then remunerated 1893 1 to be here. 2 The arrangement for today for Manitoba 3 Wildlands CNF presenters was made with the CEC based 4 on the previous schedule where the days in week three 5 were identified for public participants' 6 presentations. 7 Our arrangements then were made in terms of 8 being able to book flights, book time in people's 9 schedules, particularly those who have agreed to do 10 this as a volunteer. Our arrangements were then made 11 on that basis. 12 We ran into some challenges with three 13 presenters, on-site presenters as we term them. One 14 of them was called out of the country. One of them 15 became ill last week, was actually in Manitoba and 16 became ill and is in B.C. right now. And the third, 17 the archeologist was a function of discussions that 18 had to wait until they could be undertaken in person. 19 We had identified prior to that the hope, if 20 you will, and the need to have some independent 21 advice, content, information for the CEC in regards 22 to archeology. And I had been attempting to find the 23 participant and witness and had struck out a few 24 times. That generally applies both in relation to 25 our resources to participate in these hearings and 1894 1 the number of approaches that it takes to in fact put 2 together a group of presenters for the hearings. 3 It's been going on since November though I think we 4 would have all wished a bit more time for other 5 things in November. 6 I'm going to check with the Chair, if I may, 7 to see if I am answering the questions appropriately 8 in terms of what is requested this morning. 9 THE CHAIRMAN: Perhaps not altogether. In 10 particular, I guess you had given some of that 11 explanation but perhaps not all of what I might have 12 wanted to hear in regards to the memo that you got 13 from Hydro, NCN on March 12th in regards to the 14 lateness of putting out your list of expert 15 witnesses. And as well, I would like to hear from 16 you how Manitoba Wildlands intends to use the day 17 here to make its presentation. 18 MS. ENNS: Thank you. A little bit more 19 background, and thank you again to the Chair. The 20 public participants for this review and then the CEC 21 stages of it and these hearings first applied for 22 funding based on their perception and understanding 23 of the stages of technical work and public review 24 involved in June two years ago. Then there was a 25 notice in November of that year to add to alter, 1895 1 change, increase, if you will, the request. 2 And we have all I think been doing our level 3 best as proponents, commissioners, staff and public 4 participants since last July in respect to the fairly 5 dramatic changes in what has been required and 6 expected of us. 7 So when we got down to the third week in 8 January of this year, our organization was a 9 situation where two-thirds, a little bit more than 10 two-thirds probably of the participant funding was 11 gone. At that point, I had to in fact make decisions 12 in terms of how to make sure we were still able to in 13 fact participate in the hearings. And a variety of 14 things that were expected procedurally in February 15 did simply not have the expected resources or 16 attention. 17 That was a tough set of decisions. But we 18 would have if we, for instance, put the, by my 19 estimate, 100 to 200 hours of technical time to 20 certain of the expectations in February, then we 21 would not have been able to participate in the 22 hearings. So there were some very real challenges 23 again due to the changes overall in the process that 24 we've all been doing our best in. That included then 25 being able to close with the various individuals, 1896 1 scientists, experts, environmentalists that we had 2 been talking to in regards to participating here and 3 presenting here. 4 That's the reality, if you will, and I think 5 that it applies to everybody who has been involved 6 that we have all been working to, in fact, fulfil the 7 expectations to the best of our ability. 8 Our capacity and our organization has been 9 affected in particular by the need for legal 10 services. We are in a situation now where we are 11 overall but not specifically in terms of 12 participants' expectations to be here, we're well 13 beyond what the participants' funding was in the 14 first place. So to put all that in one simple 15 sentence, we've been doing our best and wanted to 16 make sure that we were actually still able to 17 participate and be here for the hearings. 18 The presenters who are here today or and are 19 going to be on the phone this afternoon are going to 20 in fact provide information for the Panel, for the 21 Commission and for the audience in the room in areas 22 that we have been concerned about in relation to the 23 information provided to date. 24 They are not here to provide analysis in terms 25 of transcript, EIS review and all of the many steps 1897 1 and stages of technical work and information that 2 we've all been through. Again, in the non-profit 3 sector when the majority of presenters are 4 volunteers, they have not been pursuing and reading 5 and studying the way that most of us have been 6 attempting to. 7 So for instance, Dr. Kulchyski from the 8 University of Manitoba is here to put some context on 9 a community basis for the Commission in regards to 10 Aboriginal rights and community concerns. It's his 11 speciality certainly both in the role he's in at the 12 University of Manitoba now and before at Trent 13 University. 14 Mr. Soprovich is very knowledgeable regarding 15 the west side of the province, the regions that these 16 joint projects are intended for. He is a forest 17 ecologist and knows this landscape and knows the 18 species and is going to be quite specific in terms of 19 some of our concerns where the EIS contents has not 20 been explicit or specific enough. In particular, he 21 will be addressing the concerns that we have 22 attempted to address since the first round of review 23 comments in July last year on the approach to 24 modelling and arriving then at conclusions for the 25 environmental statements and impact statements and 1898 1 the plan for transmission corridors. 2 Mr. Rudnicki is, as you all know, from 3 Minnesota. He is a lawyer and he is knowledgeable in 4 respect to alternative energy, wind, policy, both 5 public policy and the regulatory framework in respect 6 to energy in Minnesota. He is also knowledgeable on 7 a more not day-to-day basis but ongoing basis in 8 respect to discussions, if you will, debates and the 9 political context for Minnesota's objectives for 10 home-grown energy. 11 Mr. McCully is both of the International 12 Rivers Network in terms of being campaign director 13 for them and of the World Commission on Dams. The 14 proponents on day one of these hearings were making 15 specific references. I think it happened probably 16 two or three times now where the references to the 17 World Commission on Dams are in the transcript. 18 What we were doing in this discussion in terms 19 of hoping for some of Mr. McCully's time on the 20 ground here in Winnipeg was seeking to bring an 21 international perspective into the discussion in 22 respect to dams, decommissioning, climate change in 23 dams, affects on rivers and a whole variety of areas 24 in terms of international policy. 25 We have three presenters by phone this 1899 1 afternoon. Dr. Bayne's, from the University of 2 Alberta, speciality is a combination of, and he may 3 correct me because he's the scientist and I do not 4 have their biographies beside me at the moment, but 5 he is in fact an expert in terms of what sometimes is 6 referred to as linear disturbance or forest 7 fragmentation. In short form, impacts on the forest 8 itself by corridors, roads, trails and so on. And 9 that includes transmission corridors. His area of 10 knowledge in terms of species is birds, and birds in 11 the boreal and migratory birds. 12 What we were attempting to do on these topics 13 was secure Dr. Keith Hobson to speak to the Panel and 14 to provide information and evidence. Dr. Hobson has 15 spoken to Clean Environment Commission hearings in 16 Manitoba previously. And he works for the Canadian 17 Wildlife Service and is therefore a public servant. 18 Our advice was to in fact ask Dr. Bayne to 19 participate. Dr. Bayne is a former student and now 20 colleague of Dr. Hobson who is, on an international 21 basis, recognized as being expert in these areas. 22 And in particular in both mixed wood and boreal 23 forest regions. 24 Senators Anderson and Kubly, who have a 25 limited amount of time this afternoon on the phone 1900 1 because they are in a legislative session and I don't 2 know whether it's a wind-down or a wind-up of 3 committee meetings, have been asked to briefly and 4 specifically speak to you. In terms of Senator 5 Kubly, who is a rural Minnesota Senator, to talk 6 about the rural economy and alternative energy, 7 specifically wind. 8 Senator Anderson who Chairs the committee in 9 the Minnesota Legislature who deals with a variety of 10 things in terms of environmental licensing and 11 standards for alternative energy and also the 12 economic development decisions in respect to 13 alternative energy and wind will have some remarks in 14 those areas. 15 THE CHAIRMAN: Mr. Mayer. 16 MR. MAYER: Ms. Whelan Enns, you mentioned 17 that of your witnesses, most of them are volunteers 18 and only three are contractors. Which three are the 19 contractors? 20 MS. WHELAN ENNS: I was making a reference to 21 the complete set. All of the presenters are 22 witnesses whom we have registered to date. Today, 23 the contractors are Mr. Rudnicki and Mr. Soprovich. 24 MR. MAYER: And those people are to be 25 qualified I take it as experts in their field? 1901 1 MS. WHELAN ENNS: Yes, though I have not and 2 the people assisting me in terms of securing 3 participants and presenters for these hearings have 4 not taken a legal approach in terms of qualifying 5 experts. 6 MR. MAYER: Well, my concern is is that 7 several months, well not several months ago, some 8 time ago, there was a concern raised about the fact 9 that no substantive evidence had been filed on behalf 10 of Canadian Nature Federation. And in light of your 11 presentation to the Participant Assistance Committee, 12 we had expected to see some of that. 13 I can understand how it would be very 14 difficult to get volunteers to actually prepare 15 reports. But were either of the two contractors that 16 you are calling today requested to provide evidence, 17 written evidence, written reports that would give the 18 Commission and the proponents some indication of what 19 they might be saying? 20 MS. WHELAN ENNS: I think that's quite a fair 21 question. In time for these deadlines in February, 22 no. The ability to respond and have work product 23 thought out, contracted and completed in time for 24 certain of these deadlines in February was not there. 25 And that has to do with both, for instance, my 1902 1 capacity personally as managing our participation, 2 their schedules and other responsibilities we found 3 ourselves working on in January. 4 MR. MAYER: Did you request either of the two 5 contractors who we are expected to hear from today to 6 prepare such reports? 7 MS. WHELAN ENNS: I think you mean by the 8 deadline in February? 9 MR. MAYER: No, I don't mean by the deadline. 10 Did you at any time ask them to prepare reports? 11 MS. WHELAN ENNS: I'm going to try again and 12 do my best to understand your questions. Close to 13 the time of the substantive evidence deadline, all we 14 were able to do is post a memo indicating what we 15 were aiming to include, okay. 16 MR. MAYER: Ms. Whelan Enns, perhaps I should 17 ask the question again because you appear not to 18 understand it. 19 MS. WHELAN ENNS: Sure. 20 MR. MAYER: Did you, at any time, request 21 either of the two contractors who we are expected to 22 hear from today to prepare substantive reports? 23 MS. WHELAN ENNS: It wasn't feasible, no. 24 These presentations that are prepared for today 25 literally were being worked on until ten or eleven 1903 1 o'clock at night last night. Even when a contractor 2 is providing services specifically to a non-profit 3 organization, they are almost, without exception, 4 providing those services at a different rate 5 schedule, a different time schedule where -- how do 6 you describe the fact that in most cases, rates are 7 significantly decreased? It's sort of like being 8 half volunteer and half on contract. It's a reality 9 in terms of our efforts to provide information. 10 MR. MAYER: Ms. Whelan Enns, I understand what 11 you're saying. However, the last I heard, a Time to 12 Respect Earth's Ecosystems was an NGO. CAC/MSOS are 13 NGOs. Both of them have experts. Both of them have 14 provided reports significantly in advance. 15 That aside, what I understand you're saying is 16 that neither of the two people who we will hear from 17 today who are contractors have been requested to 18 provide any such report. So this is not their fault 19 I take it? 20 MS. WHELAN ENNS: It was a judgment on my part 21 in terms of what was needed, what we were able to do 22 at what point in time. It was not a deliberate 23 avoidance of any expectation in these deadlines in 24 February. I have done my best along the way to make 25 sure that the CEC knew what restrictions and 1904 1 limitations we had. Among other things, I was 2 involved in trying to secure additional funding so as 3 to be able to be here. 4 If I may respond to your references to the 5 Consumers Association of Canada and the Seniors 6 Society who are joint funded public participants and 7 Resource Conservation of Manitoba and Time to Respect 8 Earth's Ecosystems who are joint public participants 9 here. In their situation, they had very specific 10 singular and direct topic requirements and 11 expectations in terms of what they have been working 12 on technically. They also both had significantly 13 more funding than Manitoba Wildlands Canadian Nature 14 Federation. 15 MR. SARGEANT: Which group had significantly 16 more? 17 MS. WHELAN ENNS: I believe, and again I do 18 not have the figures in front of me, okay, so I'm not 19 going to try to quote figures, but I believe that the 20 TREE/RCM funding, which is mostly of course as Mr. 21 Mayer is pointing out, gone to the consultant who has 22 been doing their technical work, is a greater amount 23 than we received. And the same is true for the 24 Public Interest Law Centre who represents the Society 25 of Seniors and the Canadian Association of Consumers. 1905 1 The main thing that I was trying to say is 2 that in our situation, again, without knowing when we 3 were filing a submission to participate and request 4 funding in the middle of 2002, in our situation, we 5 in fact found ourselves in a very, well, a 6 dramatically different sequence of expectations and 7 technical work where we in fact have the 8 environmental impact statement itself. And we are 9 the only public participant specifically funded in 10 terms of the entire environmental impact statement. 11 We were of course working on both the EIS, the 12 JNFAAT. And I think you'll find that both of your 13 example organizations' primary responsibility is 14 JNFAAT only. 15 So what I'm trying to make a couple of 16 comments on is that the expectations and 17 responsibilities and technical work for ourselves was 18 quite a bit wider and included more elements. 19 MR. MAYER: Thank you. I have no further 20 questions, Mr. Chair. 21 THE CHAIRMAN: Other members of the Panel? 22 Any comments from -- 23 MS. WHELAN ENNS: I'm sorry, if I could 24 provide an example of one of the consequences of 25 having the EIS, the JNFAAT and both the parts of the 1906 1 combined project to deal with. In our request, we 2 fell short about $20,000 from what our initial budget 3 was in the submission. That has caused us to seek 4 other ways to provide information in respect to wind 5 energy because the request of us was to work on wind 6 energy. That goes then directly to Senators Kubly 7 and Anderson, Mr. Rudnicki's presentation, Robert 8 Hornung's presentation, some of who are volunteers. 9 THE CHAIRMAN: Ms. Whalen Enns, I asked you a 10 while ago how do you intend to proceed today? Do you 11 intend to make a presentation yourself and then 12 you're going to be calling upon the individuals that 13 you have mentioned? Is that how you intend to 14 proceed? 15 MS. WHELAN ENNS: I have no presentation 16 myself this morning and I believe that there is a 17 question in terms of cross-examination and then the 18 sequence and use of time. So what we would like to 19 do, and this is sort of one shift in the sequence of 20 presenters from what I provided to the Secretary of 21 the CEC yesterday afternoon, we would like to start 22 with Dr. Kulchyski, we would like to then move to Mr. 23 Rudnicki and to Mr. McCully and then to Mr. 24 Soprovich. 25 THE CHAIRMAN: Those are the four that we'll 1907 1 be talking to this morning? 2 MS. WHELAN ENNS: Yes, with the aim in terms 3 of it fitting in the morning. And my request or 4 suggestion in terms of questions for these presenters 5 would be to, in the interest of use of time and a bit 6 of continuity, hear the four of them and then have 7 questions. But I'm completely open to what the Chair 8 and the Commission prefers. 9 THE CHAIRMAN: All right. Can all four of 10 these speakers be up front and then make their 11 presentation and then be questioned afterwards? You 12 also have to appreciate the fact that neither the 13 Panel here nor anybody else has had the opportunity 14 to see any of their presentations or know exactly 15 what they intend to present. This may present 16 difficulties in the questioning or cross-examination 17 afterwards. We may have questions in that regard as 18 well. 19 MS. WHELAN ENNS: I appreciate that those are 20 concerns. In writing a short memo yesterday 21 afternoon on these subjects for the Commission, our 22 aim was to respectfully ask that these presenters be 23 given the flexibility and the opportunity that a 24 public participant, as in a general public 25 participant, would receive in these hearings. And 1908 1 you are completely right about the documentation and 2 the presentation material. We were receiving it 3 yesterday and have been doing production last night 4 and this morning. 5 MR. SARGEANT: But you're not a public 6 participant like the average person off the street. 7 You've been funded. I mean there's a higher bar for 8 the funded participants. 9 MS. WHELAN ENNS: That's correct. And I am 10 not disagreeing with what you're saying, Mr. 11 Sargeant. What I'm basically trying to describe is 12 what we have been doing to our capacity, to our 13 resources in an effort to fulfil those standards. 14 And I am perhaps begging the question then of whether 15 there should be a situation where a public 16 participant would actually have more success 17 presenting than presenters that we have approached in 18 situations, in circumstances we've been in. 19 So I wasn't trying to say they are the same, I 20 was just basically, again as the memo indicates, 21 hoping that that flexibility will be able to be 22 there. 23 THE CHAIRMAN: As we've told you before in a 24 memo that I myself signed, we do recognize that we 25 want to hear from as many people that have interests 1909 1 in the issues before us. And in that regard, we have 2 always tried to make that as much as possible happen 3 and allowed some leeway in that regard, and we are 4 prepared to do so again. But on the other hand, we 5 also reminded you that there's a limit to this 6 elasticity of flexibility. And you had to be ready 7 to accept, that if you wanted to test it to the 8 limit, that you could be challenged in that regard. 9 And that may still happen. 10 I think at this point in time, we'll begin the 11 process and see how it evolves. And I don't know if 12 the proponents have any comments to make before we 13 begin or if there is any problems in that regard. 14 Mr. Bedford? 15 MR. BEDFORD: Mr. Chair, if I could have a few 16 minutes to talk to Ms. Matthews Lemieux, I think we 17 will have one or two comments we would like to make 18 to you. 19 THE CHAIRMAN: Mr. Byron Williams. 20 MR. WILLIAMS: Yes. Thank you, Mr. Chairman. 21 Good morning, members of the Panel. Just very 22 briefly on instructions from my clients. I just want 23 to make their position clear for this morning and if 24 it will be of any help to the Panel. 25 My clients, as did their legal counsel, had 1910 1 some concerns with the process that was undertaken 2 and the lack of pre-filed information. That being 3 said, like this Commission, my clients look forward 4 to hearing the presenters presented by Manitoba 5 Wildlands or CNF. 6 And I guess to protect my client's interest, 7 to the extent that there is expert evidence that they 8 consider to be relevant and material, if that occurs 9 and they feel that that needs to be questioned, they 10 will make a judgment call at that point in time in 11 terms of whether they need an adjournment to test 12 that evidence or whether they need it at that point 13 in time. And that will be the suggestion I make to 14 the Panel in that sense that certainly let's proceed 15 and hear their witnesses, recognize that there's 16 been, from our perspective, a bit of a disadvantage 17 but it may not be a real disadvantage. We'll see as 18 the day progresses. 19 So I just wanted to put my client's comments 20 on the record in that regard, Mr. Chairman. 21 THE CHAIRMAN: Thank you, Mr. Williams. You 22 do have wise suggestions as usual. Mr. Bedford. 23 MR. BEDFORD: Mr. Chair, Commissioners, we 24 wrote the letter last Friday for two reasons. One 25 was to bring to your attention a concern that, quite 1911 1 frankly, we believe is the Clean Environment 2 Commission's responsibility to address and we believe 3 you have been addressing it this morning. The second 4 reason was to give advance notice of the position 5 that we intended to take this morning. And I can add 6 something further to that but you know, having read 7 the letter, that we are not going to object to the 8 Canadian Nature Federation Manitoba Wildlands being 9 allowed at least to bring forward these witnesses. 10 You have already noted what we of course and 11 all in the room ought to have been aware of, the 12 Canadian Nature Federation Manitoba Wildlands has 13 been a registered and funded participant in these 14 proceedings since last July. And with all due 15 respect to Ms. Gaile Whelan Enns, there is no reason 16 in our view why, six months ago, witnesses for the 17 price of long-distance telephone calls could not have 18 been identified; why, for the price of posted stamps, 19 the relevant portions of the material that we have 20 filed could not have been sent to these individuals 21 for their review. And there is no reason why any of 22 these witnesses could not at least have filed a 23 report of five pages, 10 pages or 25 pages setting 24 out the substance of what they intend to tell us 25 today. 1912 1 These are all simple things that can be done. 2 Funding is not an excuse for not having done them. 3 Complaints about time constraints is not an excuse 4 for not doing simple things. 5 We're here today, as you've correctly 6 observed, without any pre-filed material. We have an 7 abject failure to provide the names of any of these 8 witnesses within the deadline that you stipulated. 9 Our concern is that the Canadian Nature 10 Federation Manitoba Wildlands has completely failed 11 to grasp that the foundation of a fair process, be it 12 before the Clean Environment Commission of the 13 Province of Manitoba, the Public Utilities Board of 14 the Province of Manitoba or Her Majesty's Court of 15 Queen's Bench begins with simple respect for 16 procedures and directions of the Tribunal before 17 which one is appearing. 18 We don't think it's acceptable to substitute 19 for respect for procedures and directions pious 20 hypocrisy. And we find it astonishing that the 21 Canadian Nature Federation Manitoba Wildlands which 22 has been masquerading for months as the champion of 23 the public interest has so flagrantly betrayed the 24 public interest. 25 There is a simple reason why participants, at 1913 1 least those who care about the public interest and 2 fair process, were required by you, the 3 commissioners, to file a month ago substantive 4 hearing documentation. Questioning expert testimony 5 is hard work. For it to be meaningful to those who 6 wish to question, one needs to understand in advance 7 what the expert's opinion is, what the expert intends 8 to say. 9 Those who question, as I do and Ms. Matthews 10 Lemieux does, on behalf of a client, need time to 11 review with the client in advance what it is that the 12 expert will be saying and indeed to review with those 13 experts that our clients have retained for the 14 purpose of providing advice. 15 Now all those who have been here for two weeks 16 now can appreciate how much richer discussion is, how 17 much more useful expert testimony is and how much 18 better informed Commissioners are when those who 19 question have worked hard and have been able to 20 prepare. And conversely, those of us who have been 21 here for the last two weeks can all appreciate how 22 much less useful questioning is when there has been 23 little or no preparation. 24 Now, in the absence of any written material 25 whatsoever having been filed by any of the witnesses 1914 1 that the Canadian Nature Federation, Manitoba 2 Wildlands intends to call today, there can be no 3 meaningful preparation by us. That defeats your 4 public process. That hinders a full sharing of 5 information and a richer discussion that you've been 6 able to benefit from with the previous testimony and 7 the previous questioning that's taken place here. 8 That's the concern. And I reiterate, we have 9 observed that you have been addressing that concern 10 this morning which we do think it was your 11 responsibility to address. 12 Now, before the letter was written on March 13 12, I sat down and I reread, several times, Mr. 14 Lecuyer's letter of February 17. And although he 15 signed it, I assumed, I think quite comfortably, that 16 that letter was written on behalf of the Clean 17 Environment Commission and its content endorsed by 18 all five Commissioners. 19 We well recognize that you have a process here 20 which you wish and which should encourage public 21 participation, open discussion and the sharing of 22 information as you have written. And I well 23 recognize that a too rigid adherence to rules of 24 procedure, a too rigid adherence to laws of evidence 25 and in fact simply having too many lawyers in the 1915 1 room can intimidate and discourage public 2 participation. 3 And accordingly, it was my advice shared by 4 Ms. Matthews Lemieux to her client when faced with 5 what we're now faced with today, that we recommend 6 that these witnesses be allowed to be called. But to 7 the extent that any of them are going to express 8 opinions, give expert testimony, we request that it 9 is in your interests as well as ours that we all 10 first understand what their areas of expertise are 11 and whether in fact the areas of expertise upon which 12 they wish to present a topic are relevant to your 13 tasks in reviewing the Wuskwatim projects. 14 We will do our best to ask questions if 15 testimony goes forward and if we determine that we 16 should be asking questions and if what is said is 17 relevant. However, to the extent that we are unable 18 to ask meaningful questions because we have been 19 unable to effectively prepare, we ask that the 20 witnesses be brought back at the convenience of the 21 Commission and of us. And where there is no 22 cooperation in bringing them back, we will ask that 23 their evidence be disregarded and stricken from the 24 record. Thank you. 25 THE CHAIRMAN: Thank you, Mr. Bedford. I will 1916 1 now turn to Ms. Gaile Whelan Enns and ask whether 2 Manitoba Wildlands Canadian Nature Federation is 3 prepared to accept to call back the witnesses at a 4 time that is mutually agreeable to all parties 5 sometime in early April probably to respond to 6 questions. Those who make their presentation in 7 person would have to come back to respond in person. 8 Those who make their presentation by phone would have 9 to be available to respond to questions by phone. 10 Would that be agreeable, if so requested by the 11 members here? 12 MS. WHELAN ENNS: We would do our utmost to be 13 able to do that. I can't speak for the individuals 14 who are going to present this morning. I can't ask 15 them here. We also will of course be out of 16 participant funding. But we would certainly aim to 17 do that. 18 If I may comment upon something I may have 19 heard incorrectly or assumed wrongly, I was aware of 20 the possibility of questions for presenters or 21 cross-examination, as it's termed, happening over the 22 phone. I was not aware procedurally of the 23 distinction in terms of in present, then questions in 24 present. Presentation by phone, questions by phone. 25 But we would definitely do our best to accommodate. 1917 1 And I appreciate the relevance of what you're 2 asking and doing procedurally this morning. I would 3 like to know if I could make a couple of comments to 4 the proponent? 5 THE CHAIRMAN: Briefly, yes. 6 MS. WHELAN ENNS: Okay. So that we have a 7 record in the transcript this morning, our legal 8 counsel is not able to be here. Our funding 9 basically provides us with the time on site last week 10 and then time on site by our legal counsel during 11 closing arguments in April. So that remains the 12 situation which means that I am basically doing my 13 level best then to answer questions procedurally and 14 talk to our legal counsel by phone. So again, just 15 to make sure that the record shows that that is the 16 situation. 17 Six months ago is a very good retrospective in 18 respect to presenters and identifying witnesses 19 because before we knew there were going to be two 20 sequences or two kinds of interrogatories for this 21 review, we were well into beginning to identify our 22 witnesses. 23 Again, to emphasize that the majority of our 24 witnesses are not contractors, they are volunteers 25 and it takes talking to advisors, finding individuals 1918 1 then who know or already work with the individuals 2 that we have been approaching. It takes finding a 3 contractor to pick that work up to be able to 4 identify the witnesses. 5 I have not been aiming to sound like we are 6 making excuses but rather to clearly identify the 7 situation and I think it's probably perhaps relevant 8 for future reviews for the public participant program 9 overall and for decisions in terms of ability to 10 participate and best way to qualify. I think the 11 provisional order in respect to our funding was 12 explicit and clear and we have been doing our best to 13 fulfil it. I do not deny where we haven't managed 14 that. 15 I would like to thank the Commission for their 16 consideration this morning. I believe that the 17 presenters who are here have definitely something to 18 contribute and we will do our utmost in terms of, 19 well, the written material obviously and the 20 opportunity to question. 21 I would take it then, Mr. Chair, that we are 22 not going to have questions of presenters this 23 morning or are we going to do both? 24 THE CHAIRMAN: That is not necessarily so. 25 There may be some questions this morning but I think 1919 1 from what I've just told you before, we reserve the 2 right to ask further or additional questions and the 3 proponents want to have that right as well. That 4 doesn't imply that there won't be any questions 5 today. 6 MS. WHELAN ENNS: It doesn't imply that there 7 will be follow-up questions either, that we will hear 8 about that determination. 9 THE CHAIRMAN: I think it's something we want 10 to leave open and that we want to make sure you 11 understand that this is a possibility. And if we ask 12 that one of the expert witnesses be back to respond 13 to questions and is not available, then we would have 14 to consider striking his presentation, his comments 15 from the record. So let me -- 16 MS. WHELAN ENNS: I understand that and I 17 appreciate it. 18 THE CHAIRMAN: Okay. Now, we understand some 19 of the challenges that you have to face. One of the 20 factors being that there are two portions to the 21 hearing I suppose adds to that but in the same vein, 22 we also want to be fair to all the participants. 23 So that having been put on the record, maybe 24 we can begin. But seeing the time, maybe we will 25 take a short break. And we're responsible, that 1920 1 was unavoidable because of an emergency this morning, 2 we had to start a bit late. If we take ten minutes 3 now and then we can go on straight till noon. 4 MS. WHELAN ENNS: Thank you. 5 MR. GREWAR: Mr. Chairman, there's just a 6 number of exhibits that should be entered just for 7 consistency. The first would be correspondence 8 received by the CEC from the Canadian Nature 9 Federation of yesterday regarding process, and that 10 will be Exhibit CNF 1000. In addition to which 11 because they've been referred to, we should perhaps 12 indicate two documents that were received after the 13 commencement of the hearing which were letters of 14 presenters and background presentation area from 15 Canadian Nature Federation. One would be dated March 16 2, 2004 and that would be CNF 1001. And one received 17 on March 11th would be CNF 1002. So those are the 18 documents that should be on the record. 19 20 (EXHIBIT CNF 1000: Correspondence received by 21 the CEC from CNF regarding process) 22 23 (EXHIBIT CNF 1001: Letter of presenters and 24 background presentation area from CNF dated 25 March 2, 2004) 1921 1 (EXHIBIT CNF 1002: Letter of presenters and 2 background presentation area from CNF received 3 March 11, 2004) 4 5 THE CHAIRMAN: Thank you, Mr. Grewar. We will 6 just take a break for ten minutes. 7 8 (PROCEEDINGS ADJOURNED AT 10:23 A.M. and 9 RECONVENED AT 10:36 A.M.) 10 11 THE CHAIRMAN: Ladies and gentlemen, we are 12 ready to proceed. I gather you're Mr. Kulchyski? 13 MR. KULCHYSKI: That's correct. 14 THE CHAIRMAN: I'll let you proceed then. 15 MR. GREWAR: Sorry, this is Rudnicki? 16 THE CHAIRMAN: Kulchyski. 17 MR. GREWAR: Okay. We've got the 18 presentations out of order then. You have no 19 PowerPoint presentation? 20 MR. KULCHYSKI: No. 21 MR. GREWAR: I will have to swear you in. 22 Could you state your name for the record, please. 23 MR. KULCHYSKI: Sure. Peter Kulchyski. 24 MR. GREWAR: Mr. Kulchyski, are you aware that 25 it is an offence in Manitoba to knowingly mislead 1922 1 this Commission? 2 MR. KULCHYSKI: Now I am, yes. 3 MR. GREWAR: Do you promise to tell only the 4 truth in proceedings before this Commission? 5 MR. KULCHYSKI: Absolutely. 6 MR. GREWAR: Thank you, sir. 7 MR. KULCHYSKI: Thanks. 8 9 (PETER KULCHYSKI: SWORN) 10 11 MR. KULCHYSKI: Well, I'm currently head of 12 the Native Studies Department of the University of 13 Manitoba. Kathi asked me to say, or Ms. Kinew, that 14 I was actually born in Bissett, Manitoba. I attended 15 high school at Cranberry Portage at Frontier 16 Collegiate Institute, the government-run residential 17 high school. I did my undergraduate degree at the 18 University of Winnipeg in Politics before completing 19 my Masters and PhD at York University. So I'm a dyed 20 in the wool Manitoban who is very happy and proud to 21 have come back here. And it's an honour for me to 22 address you. 23 What I want to do in the brief amount of time 24 that I've got, it is a thoroughly -- an oral 25 presentation. I am currently writing up an analysis 1923 1 for the Canadian Centre for Policy Alternatives about 2 the Wuskwatim Statement of Understanding between 3 Manitoba Hydro and the Nisichawayasihk Cree Nation. 4 I will make that available to the Commission. It 5 will be ready within a few days. 6 Also I just haven't had time. I am a 7 volunteer and I've been very busy with the teaching 8 term but I will write up my notes for you from today 9 and attach any other documents. Although I'm 10 speaking to you at a very general level, I'm not 11 going to be looking at the technicalities of any 12 agreements for you so I believe you'll be able to 13 follow what I have to say. Also I'm quite prepared 14 to come back and deal with any further questions you 15 have apart from any you might have today, if you want 16 me to, subject to both of our schedules. 17 What I'm going to speak to you about today 18 comes into four categories. The first is 19 communities. I think it's important I say a few 20 words about the distinctive nature of Aboriginal 21 communities because that's really the basis of 22 Aboriginal and Treaty rights. Secondly, I'll talk 23 about Treaties. Thirdly, I want to talk about 24 contemporary agreements. And lastly, I want to talk 25 a little bit about rivers and legacies. And I 1924 1 believe I can do this within the 20 minutes or half 2 an hour that I've got. So let me begin with 3 communities first of all. 4 I think in general, I believe Canadians 5 misunderstand some of the things that distinguish 6 aboriginal communities from mainstream communities. 7 And I want to get a few of those out on the table 8 because I think before we get anywhere, it's 9 important to understand this. And so there's three 10 points that I want to make. 11 First of all, Aboriginal cultures are hunting 12 cultures. They are not agricultural or they don't 13 come from agricultural societies, they come from 14 hunting societies. And there's profound and basic 15 differences between hunting cultures and other kinds 16 of cultures. 17 Most of the rest of multicultural Canada, 18 whether you're an immigrant from Vietnam or England 19 or Poland or where ever, you came either from an 20 agricultural society or an industrial society with a 21 whole different set and kind of values and 22 understandings. 23 One of the distinctivenesses of Aboriginal 24 peoples is that the values, structures, the nature of 25 the culture itself owes itself to the fact that it's 1925 1 a hunting culture. And I should say Manitoba is one 2 of the last homelands in the world for hunting 3 cultures. So when we talk about Aboriginal cultures, 4 it's important to remember that they are not simply 5 another link in the chain of multicultures. We can't 6 say Polish, Ukranian, Vietnamese, Portuguese, Cree. 7 In fact, there's a qualitative difference between 8 Cree and all of those other cultures because of the 9 nature of it as a hunting culture. 10 Secondly, there's also a distinction between 11 Cree and all of those others that I listed because of 12 the fact that Cree were prior occupants of Manitoba. 13 That fact means that my parents are Polish and 14 Ukranian and I speak neither Polish and Ukranian. I 15 walk around with my hand on my forehead like this and 16 lament the fact that I don't know much about Ukranian 17 culture and I try and pretend it's a grand tragedy 18 but actually it's just a personally sad event. 19 If the Cree language disappears from Northern 20 Manitoba, the chances of the Cree language surviving 21 in the world become greatly reduced. Portuguese 22 language will continue to be practised in Portugal. 23 Polish language and culture will continue to be 24 practised in Poland. Vietnamese language and culture 25 will continue to be practised in Vietnam. 1926 1 It's a sad fact that Aboriginal cultures have 2 Canada as their homeland. Well, the sad fact and the 3 great fact. It means that we have the obligation, 4 the responsibility and the great privilege of being 5 the homelands of those cultures. And to the extent 6 that we're keeping those cultures alive and vital, 7 we're making a contribution to the world's cultural 8 diversity in a way that none of the other 9 multicultural elements of Canada can quite claim. 10 Last thing I want to say about Aboriginal 11 communities is the extended nature of occupation of 12 those communities. Families in Aboriginal 13 communities can rest assured that their descendants 14 will continue to be in those communities for 15 generations to follow. All right. So if you're a 16 Neckoway from Nelson House, you have a very good 17 chance that there will be Neckoways in Nelson House 18 200 years from now. And you have to be concerned 19 about that. 20 I'm a Kulchyski from Bissett. When my older 21 brother passes away, there will be no more Kulchyskis 22 in Bissett. And that's a fact of life for most of us 23 for the reality of most non-Aboriginal Canadians. 24 It's not a fact of life for most Aboriginal 25 Canadians. There is out migration from Aboriginal 1927 1 communities but there is also a long-term 2 generational commitment family by family to every one 3 of those communities that distinguishes them from the 4 rest of the rural communities in Manitoba. 5 So in my view, the fact that they are hunting 6 cultures, that they are prior occupants and that they 7 contemplate an extended occupation of particular 8 areas of land, their homelands, into the distant 9 future are things that mark Aboriginal communities 10 out from non-Aboriginal communities and are one of 11 the reasons why we have, not only the reason, but one 12 of the main reasons why I think it's right that we 13 have Treaty rights and we have Aboriginal rights. 14 Treaties have been with us in Manitoba for a 15 long time and of course Treaty 5 was signed initially 16 in Northern Manitoba in 1875 with various adhesions 17 through into the 20th century. So I am on to my 18 second topic now on treaties. 19 It's only in the last 15 years that the 20 Supreme Court of Canada has really started to look at 21 what are the canons of interpretation? How do we 22 interpret treaties? What do treaties mean? And in 23 two particular cases that I want to mention, the 24 Sioui case and the Marshall case which I wanted to 25 just talk about at a very general level. 1928 1 The courts have said treaties are a lot more 2 valuable than they have been treated through much of 3 the first 100 years of the history. The Sioui 4 decision of 1990 written by then Justice Dickson said 5 that treaties need to be interpreted in a liberal and 6 generous manner. And I'm paraphrasing. They said 7 you don't just read the literal words of the 8 treaties. You have to pay attention to what both 9 parties were understanding when they came to the 10 table. 11 The Marshall decision of 1999 emphasized that 12 the oral history of Aboriginal peoples and other 13 extrinsic evidence should play a role in interpreting 14 the treaty. And it reaffirmed the nature of the 15 Sioui decision. 16 Both of those two decisions would tell us that 17 we shouldn't look at the treaties the way we have for 18 much of the last 100 years, which I would say has 19 been based on the literal rendering of the treaties 20 and I would characterize as a narrow and 21 mean-spirited interpretation of the treaties. 22 The courts have said we need to take a liberal 23 and generous interpretation of treaties. The 24 treaties are now constitutionally protected since 25 1982. Section 35 says existing Aboriginal and treaty 1929 1 rights are hereby recognized and affirmed. 2 I would say at a bare minimum, if you want to 3 then say well what would a liberal and generous 4 interpretation of the treaties look like? What would 5 a liberal and generous interpretation of the treaties 6 look like? What would the understanding of both 7 parties be? There are two critical aspects. 8 Certainly it was the understanding of the 9 Federal Government that they were negotiating 10 something like access to Aboriginal lands. They 11 worded that as a land surrender. But what, in my 12 view, they were actually getting was access to 13 Aboriginal lands. 14 What they were promising, what they certainly 15 strongly promised in every treaty orally during 16 treaty negotiations was that the Aboriginal people 17 could maintain their way of life. And what the 18 treaty itself indicated was that Aboriginal people 19 would continue to have hunting, fishing and trapping 20 right on so-called unoccupied Crown lands. And it's 21 that that I want to devote my attention to here, 22 unoccupied Crown lands which is in a sense some of 23 what we're talking about. 24 It's my view that if we were to actually have 25 a liberal and generous interpretation of the Treaty, 1930 1 we would recognize that Aboriginal peoples have an 2 ongoing interest, a legal right and an ongoing 3 interest in all unoccupied Crown lands in Manitoba 4 and specifically in Northern Manitoba. 5 If we were to be liberal and generous, we 6 would say it's our duty to ensure that enough 7 unoccupied Crown lands remain intact in a way that 8 would continue to support the hunting economy and way 9 of life of Aboriginal peoples. And at a minimum to 10 me, not really being liberal and generous, but at a 11 bare minimum, that would mean understanding 12 Aboriginal people as co-owners and co-managers of 13 unoccupied Crown lands. Of consulting with them 14 before we have a plan for a project and we're this 15 far down the road. But actually talking to people 16 before we make plans and say what are your plans, 17 what lands do you need? How viable and sustainable 18 is the hunting economy of your community? These are 19 questions we should have asked a long time ago. 20 We should be asking now if we want to take a 21 liberal and generous interpretation of the treaties 22 the way the Supreme Court of Canada has said. And 23 it's unfortunate to me that we don't. All we seem is 24 to come to this point where a project is proposed and 25 we're well down the road before we can engage in 1931 1 serious consultation. 2 Thirdly, I want to turn then to agreements. 3 It was certainly not the intention of the signers of 4 treaties that they would be in a worse off position, 5 particularly the Aboriginal signatories of treaties, 6 that that would put them in a worse off position than 7 people who hadn't signed treaties. 8 But the history of Manitoba in the last 20, 30 9 years has actually -- that's been the case. The 10 Treaty nations of Northern Manitoba who got into 11 agreements with us 100 years ago have effectively 12 been punished for signing those treaties because 13 they've gotten worse deals around hydroelectric 14 development proposals than First Nations have in 15 Northern Manitoba. 16 So the James Bay in Northern Quebec agreement 17 compares favourably and is much better in many 18 respects than the Northern Flood Agreement which was 19 even seen so generous that some of the parties felt 20 they needed to buy out some of the provisions. 21 The current Peace of the Braves in Quebec 22 structurally is a much better agreement than the 23 Statement of Understanding between Manitoba Hydro and 24 the Nisichawayasihk Cree Nation which I've had the 25 opportunity to look at, the October document. 1932 1 Primarily on a structural basis, we can argue 2 about the amounts of money and about the sizes of the 3 project, but structurally the Wuskwatim agreement, 4 the Statement of Understanding says Wuskwatim -- the 5 Nisichawayasihk Nation will gain funds as a result of 6 assuming some risk. They will be lent money and 7 therefore they will assume risk for a project and 8 therefore they will gain an equity position in the 9 project. 10 Structurally on the other hand, the James Bay 11 Cree are being offered funding, $70 million a year 12 for 50 years. And they actually, in the 13 negotiations, talked about having an equity position. 14 The Cree rejected that. They are getting paid 15 effectively because these developments are taking 16 place on their lands. 17 Today, that deal, the Peace of the Braves, was 18 negotiated after the Cree had a modern Treaty. So we 19 can't even say the situation is different in terms of 20 treaties. There's a treaty now in Northern Quebec, 21 the James Bay in Northern Quebec agreement. There's 22 a Treaty in Northern Manitoba, Treaty 5. 23 Why are we offering the Nisichawayasihk Cree 24 Nation so much less? Why are we having them have to 25 assume risk in order to take an equity position in a 1933 1 project? And in Quebec, they are saying you get 2 money, you have no risk. 3 I'm not faulting the leaders of 4 Nisichawayasihk Cree Nation. I think they do the 5 best they can to get the best deal they can. But I'm 6 saying we, the public, Manitoba Hydro and the 7 Manitoba Government, aren't being fair to them. 8 We're not offering them anything like the deals that 9 are being offered in other jurisdictions. 10 It's my view in fact that Manitoba was founded 11 on an Aboriginal fact, Louis Riel, concerns of the 12 Metis and concerns of First Nations. It's my view as 13 a proud Manitoba citizen that we should be leading 14 the way in having Treaties respected and in 15 developing modern arrangements with First Nations and 16 with treaty nations that stand the scrutiny of other 17 jurisdictions within Canada. 18 In fact, I believe this agreement, if it goes 19 ahead, puts us behind other jurisdictions, puts us in 20 last place. And is something that, as a Manitoban, I 21 would hang my head over. And I would say we're not 22 giving our First Nations and our treaty nations 23 anything like the kind of respect they are getting in 24 other jurisdictions. And actually that makes me 25 ashamed. 1934 1 Finally I want to turn to rivers and legacies 2 and I'm not -- I have no expertise on environmental 3 issues. I do have some expertise on treaty rights 4 and on northern communities and northern cultures. 5 But I travel on rivers. I've travelled on the Nelson 6 River with bottled river. I've travelled on the 7 Winnipeg River with bottled water. It's hard to 8 survive as a hunter in the world today when you have 9 to take water out with you wherever you go. 10 Rivers are the life blood of the hunting 11 economies. They are the transportation routes. They 12 connect people together. They are really how people 13 survive. The current poster for the Department of 14 Native Studies -- I will attach it to documents that 15 I send you -- has an image by an Aboriginal artist 16 called River People. I think that's quite true 17 actually. If you look at the traditional maps of 18 Canada and you look at many of those communities 19 today, they are situated along rivers. 20 And regardless of the various debates about 21 the projects, I know that before the first wave of 22 Hydro development in Northern Manitoba, you could 23 drink the water on the Nelson River. And I know that 24 now, practically speaking, most people don't. I know 25 that now with this project that's proposed and future 1935 1 projects that's proposed, we're striking another 2 stake in the hearts of hunters. 3 And think about it. We don't hesitate to say 4 that farming families are the basis of rural 5 communities. And we invest in farming families 6 because we want those communities. Right. The 7 Federal Government is announcing $500 million for the 8 beef industry because it's been hard hit. Have you 9 ever seen an announcement of that magnitude 10 supporting hunting families in northern Canada? Has 11 anybody done anything conscientiously to try and say 12 maybe hunters are the basis of a sustainable future 13 in Northern Manitoba? In fact, the hunting economy 14 doesn't even register with economists. They see 15 hunters as unemployed people. They don't see any GDP 16 coming out of hunters. 17 If there's one thing that I would want to 18 leave you with is that hunting is not an outdated way 19 of life. Hunters can actually live a wealthier way 20 of life. And I'm among now the privileged members of 21 society. It wasn't always that way and I can 22 appreciate my privilege. But actually, many hunters 23 live a better way of life than me because the hunting 24 way of life allows them more time. It allows them to 25 spend time with their families. It allows them to 1936 1 invent very rich cultures. It allows them to be 2 their own bosses, to live a bush life. That's a good 3 way of life. 4 What we're underestimating in all of this is a 5 quality of life that we have systematically 6 denigrated for a few hundred years that we're only 7 now becoming to be in a position that we can actually 8 appreciate. If we say the only economic development 9 that can take place in northern Manitoba is Hydro 10 development and mining development and lumber 11 development, we're missing the very basis of what 12 sustained Northern Manitoba communities actually for 13 centuries. 14 And I'll leave you with one image of hunting 15 communities. Hunting communities around the world 16 have been around for at least as long as modern human 17 beings have, according to archeologists. Let's say 18 60,000 years is the current estimate. Agricultural 19 societies have been around for about 8,000 to 10,000 20 years. Industrial society wouldn't even make it on 21 that chart. It would something like a few hundred 22 years. 23 Hunting communities have proven themselves to 24 be the most sustainable social organization that 25 human beings have ever invented. No other way of 1937 1 life has sustained itself for that long. And I'm not 2 talking about a past way of life, I'm talking about 3 now a contemporary way of life. Hunters hunt with 4 modern technologies and enjoy some of the modern 5 benefits of life but they are still living. 6 One of the last homelands of the world of 7 hunters is Northern Manitoba as a part of Northern 8 Canada. If we don't begin to start appreciating 9 that, I think we continue a legacy that will leave 10 another generation of children hating Manitoba Hydro, 11 hating Manitoba Hydro. We'll leave another 12 generation of children who have small wage work and 13 whose families are largely unemployed and are 14 meaningfully unemployed because they can't even 15 sustain themselves by going out on the land and 16 living that rich way of life. 17 The Berger Inquiry of the mid 1970s said they 18 didn't say no to the proposed pipeline development, 19 they said delay it. I was born in Northern Manitoba. 20 My father is buried under the earth of Northern 21 Manitoba. I've travelled around the world and came 22 back to Manitoba because I want to be here. My 23 daughter was born here. I love this province and I 24 love the north. 25 I urge you, as a Commission, to use whatever 1938 1 powers you have to delay or stop this project 2 because I think we're doing the wrong thing with 3 Northern Manitoba and I think we are doing the wrong 4 thing with the hunters who deserve a much better 5 break in our economy and in our lives. And that's, 6 in a nutshell, what I have to say to you. Thank you. 7 THE CHAIRMAN: Thank you. Mr. Sargeant. 8 MR. SARGEANT: Dr. Kulchyski, just on your 9 almost very last point about the Berger Commission, 10 you noted that Berger suggested delaying the 11 pipeline. And in the last two, three, five years 12 we've seen great development on those pipelines as 13 the Aboriginal communities in the NWT, particularly 14 in the McKenzie Valley, have concluded their treaties 15 and now feel in a position to take advantage of the 16 economic development. 17 How does that differ from the Nisichawayasihk 18 Cree Nation now moving to take advantage of economic 19 development in their region much as the Deh-Cho and 20 other NWT Bands are moving in that direction? 21 MR. KULCHYSKI: Well, I should say the two 22 regions that are in favour of development and that 23 have completed their modern treaties are the Sahtu 24 and the Gwichin. The Deh-Cho region which is a third 25 region to the south. 1939 1 MR. SARGEANT: I just picked that out. It's 2 just one of the three or four in the valley. 3 MR. KULCHYSKI: Since I'm actually intimately 4 familiar with the Deh-Cho and with all of those 5 regions, I'll say this. The Deh-Cho, from my 6 discussions with the leadership, they continue to be 7 opposed to pipeline development and they haven't 8 concluded a modern Treaty agreement. I know the 9 Sahtu very well. I haven't worked that closely with 10 the Gwichin. There's a fair bit of controversy 11 within the Sahtu community. 12 But I would say between the early 1970s when 13 that project was first proposed and now, and it's 14 again there's a lot of talk of it, we haven't seen 15 construction happening, certainly those communities 16 have had a long time. Some of them have finished 17 Treaty negotiations and some of them are now prepared 18 to be involved. And you know, I wish them the best 19 in that. 20 I don't believe that the nature of pipeline 21 construction is as economically devastating as the 22 nature of Hydro development in terms of its impact on 23 the environment. Because when you affect a whole 24 river system, you affect all of what comes off of 25 that. I would suspect even the Sahtu and Gwichin 1940 1 regions would have a great deal of difficulty if 2 someone wanted to try and do Hydro development on the 3 Deh-Cho River, on the McKenzie River itself. 4 So the difference is partly the nature of the 5 projects, partly that they've had agreements that 6 have given them significant equity to start off with. 7 They can decide to buy in or not buy into the project 8 without borrowing money but having their own money. 9 And they've had enough money to sort of train 10 themselves and prepare themselves from their land 11 claims. 12 We've disrespected the treaty 5 land claim to 13 such an extent that most of the First Nations, you 14 know, they haven't been sitting on $75 million, 15 hiring their own lawyers, looking at the broad 16 situation, spending 10 years sort of thinking about 17 do they want to be involved or not. For the most 18 part, they've been funded by Indian Affairs. They've 19 been underfunded. There are serious and aggravated 20 problems in the communities. I don't think they've 21 been given the time to prepare. 22 And it's partly because the modern treaties, 23 the Sahtu Treaty and the Gwichin Treaty as more 24 recent agreements, have more money attached to them 25 and are given more respect. 1941 1 Treaty 5 has given the Nisichawayasihk Cree 2 Nation members $5.00 a year. 3 MR. SARGEANT: I don't want to speak for 4 Councillor Thomas but we've heard from him over the 5 last two or three weeks or couple of weeks that we've 6 been sitting here that his community has really put a 7 lot of thought and a lot of consideration into this 8 over the past number of years really since I suppose 9 since the early, mid-nineties when they started to 10 negotiate the NFA implementation agreement. And not 11 long after that was put in place, they moved into 12 this. 13 So at least I don't get the impression that 14 it's been a hasty decision and an uninformed decision 15 on their part. 16 MR. KULCHYSKI: You know, I'll leave that to 17 members of the community including the Chief to speak 18 to. I hear different things obviously from different 19 community members. The one thing I'd say is that to 20 me, the real comparison is between what's going on in 21 Northern Quebec and what's going on in Manitoba where 22 you have two treaties, one an earlier Treaty and one 23 a modern Treaty and effectively, by the nature of 24 this agreement, we're punishing people from having 25 solemnly signed an agreement more than 100 years ago. 1942 1 Apart from the dollar amounts and other things 2 that's structural disparity, I don't think anybody 3 looking at the situation objectively can't say we're 4 doing much worse. We're not offering the same kind 5 of deal here in Manitoba than is offered to the Crees 6 of Quebec. And I don't see any logical reason why 7 that's the case. 8 MR. SARGEANT: We heard yesterday from 9 Councillor Thomas that they did consider the Quebec 10 situation and they opted for this one. 11 MR. KULCHYSKI: Well, when people only have 12 one offer on the table -- 13 MR. SARGEANT: He indicated there was more 14 than one offer. Again, I don't want to speak for him 15 but this is what I heard from him yesterday. 16 MR. KULCHYSKI: I mean it certainly would seem 17 to me to be incomprehensible if you were offered 18 anything like what the Cree of Quebec were getting 19 which is simply money without strings attached to it 20 and without assuming risk. You know, I can't believe 21 that the leaders of Nisichawayasihk wouldn't have 22 taken that rather than a debt that gives them risk 23 and gives them equity. They could have just used the 24 money to buy if they want equity which is what the 25 Cree in Quebec could consider and at the moment, 1943 1 generally speaking, they ruled that out. 2 I should say one of the other problems with 3 equity, and I haven't had the time to do a detailed 4 analysis for you of the agreement, but I will send 5 you one, I believe this is the reason that the Cree 6 in Quebec didn't use the money they got to buy into 7 the project is because when they do have equity, they 8 are tied into it. And that ties our hands up when it 9 comes to being critics over the environment damage. 10 Once you start assuming equity, you have to hope that 11 the project is going to succeed and, therefore, you 12 start having objective interest in, you know, not 13 being as rigorous in making sure that the 14 environmental impacts are mitigated and all of those 15 sorts of things. You start needing to make sure the 16 project makes profits so your community doesn't go in 17 debt. 18 So apart from its value in dollar terms 19 structurally, the equity position means that the 20 community becomes tied into the success of the 21 project. And if strict environmental standards, for 22 example, are limiting the profit margin, then you're 23 in an objective conflict of interest. The Cree in 24 Quebec are in no such conflict of interest. 25 MR. SARGEANT: How about the Gwichin and Sahtu 1944 1 and the McKenzie Valley pipeline? Aren't they going 2 to be equity partners? 3 MR. KULCHYSKI: They are proposing to be 4 equity partners and I would say they will be in a 5 similar kind of conflict of interest. But again, I 6 will emphasize, the Hydro development won't have the 7 same kind of environmental impact. You know, I know 8 those communities, particularly the Sahtu 9 communities, they are very very concerned about doing 10 things that will support the hunting way of life. 11 They see that as really one of the basis and the 12 future of their communities. 13 So you know, they are not looking at hunting 14 is something that belongs in the past and we're 15 getting into this dismissing that. They are saying 16 we've looked at this carefully. We think, you know, 17 it's not going to have as much environmental impact. 18 We think we can continue to protect our hunters and 19 it's probably in our interest to take an equity 20 position. I have concerns that that will put them in 21 a similar conflict of interest still around the 22 environmental impacts. But you're not looking at 23 something that's going to affect the whole river 24 system. So the impacts are less. 25 MR. SARGEANT: Thank you. 1945 1 THE CHAIRMAN: Mr. Mayer. 2 MR. MAYER: Dr. Kulchyski, I have some similar 3 concerns that Mr. Sargeant has. You say you're 4 writing a paper on the agreement or the memorandum 5 that presently exists between Nisichawayasihk and 6 Hydro? 7 MR. KULCHYSKI: That's right. 8 MR. MAYER: And how long have you had those 9 documents? 10 MR. KULCHYSKI: I'm drafting something, so I 11 have a draft of something. I gave a paper at a 12 conference at the University of Winnipeg. It's all a 13 blur to me now because it's been a very busy month 14 but I believe it was three weeks ago. 15 MR. MAYER: We heard about that conference. 16 Have you had the opportunity or did you in fact read 17 the material filed by Hydro and Nisichawayasihk on 18 this very issue? 19 MR. KULCHYSKI: I've read the Statement of 20 Understanding and then I followed the debates in the 21 newspaper but I haven't had the opportunity to read 22 further. 23 MR. MAYER: Were you aware, doctor, that 24 volumes of documents have been filed before this 25 Commission all of which have been in the hands of the 1946 1 person who calls you or of the organization that 2 calls you today as a witness and you're telling us 3 you haven't read any of that? 4 MR. KULCHYSKI: I'm telling you that I'm a 5 volunteer witness. I happen to have a full-time job 6 that's a very busy one. And so I want to thank Gaile 7 Whelan Enns for inviting me here. She's made those 8 documents available to me and I must say she leaned 9 on me quite heavily to try and have my report 10 prepared. If I was testifying tomorrow rather than 11 today, I might have been able to bring a document. 12 That's how close I am. But I will not bring 13 something that's not complete and I haven't had the 14 chance to kind of dot the I's and cross the t's. I 15 simply won't do that. 16 MR. MAYER: Doctor, I too have a day job and 17 for all intents and purposes on this Commission, I am 18 a volunteer and I have read that material. Now, 19 you're giving evidence today on an agreement or 20 criticizing an agreement that you have seen bits and 21 pieces of -- 22 MR. KULCHYSKI: I've seen the agreement and 23 read it closely. 24 MR. MAYER: Okay. 25 MR. KULCHYSKI: And -- 1947 1 MR. MAYER: Do you have the whole agreement, 2 sir? 3 MR. KULCHYSKI: I'll show you what I have. 4 MR. MAYER: I'll take your word for that, sir. 5 MR. KULCHYSKI: October 2003 Summary of 6 Understanding. 7 MR. MAYER: Okay. 8 MR. KULCHYSKI: And I should say that this 9 refers to, and I'll be happy to look at it when it 10 comes out, a further deal that would be signed 11 afterwards that would be in legal language. I'll be 12 happy to look at that. You know, I'm concerned about 13 the big picture here rather than all of the technical 14 details. I appreciate your work in looking at all 15 the technical details. I look at the agreements to 16 legal understandings as I look at treaties, the 17 actual legal understandings. 18 MR. MAYER: But then, sir, if you've read that 19 agreement, you know it is not legally binding, don't 20 you? 21 MR. KULCHYSKI: That's right. 22 MR. MAYER: So you talk about legal 23 understandings, what they have is a Memorandum of 24 Agreement. My concern, sir, is that you are asking 25 us to substitute your decision on the issue of this 1948 1 agreement and this partnership for that of the 2 Nisichawayasihk Cree Nation and Manitoba Hydro and 3 the members of the Nisichawayasihk Cree Nation who 4 have voted on this. Doesn't that seem a little 5 paternalistic to you, sir? 6 MR. KULCHYSKI: No, it doesn't at all seem 7 paternalistic. And let me say that you are 8 absolutely correct. This is a non-binding agreement. 9 A project development agreement will be signed 10 subsequent to this. 11 I've seen a lot of ratification processes go 12 on in communities I didn't have time today to talk to 13 you about, although I'd be happy to talk to you 14 about. The ratification process that's discussed in 15 this agreement is kind of a travesty actually in the 16 sense of there's no time line that's mandated. So 17 you can have an agreement and try and have the 18 community vote on it within a few days. These are 19 agreements that will affect people's long-term future 20 and often they are presented with a legal document. 21 Usually -- well, not usually, almost always 22 the ratification processes involve people coming and 23 selling an agreement to the community without any 24 opportunity for internal community debate. I also 25 happen to know that there's a good portion of the 1949 1 community that opposes the agreement. And since 2 their voices aren't largely paid for or subsidized 3 and since they don't have offices, fax equipment, 4 computers, I do partly make it my job to try and 5 speak for those who don't get the opportunity and 6 don't have the resources sometimes to speak for 7 themselves. Although I believe the Commission has 8 probably heard from a few of them here. 9 MR. MAYER: I have no further questions. 10 THE CHAIRMAN: Mr. Nepinak. 11 MR. NEPINAK: Thank you, Mr. Chairman. Dr. 12 Kulchyski, first of all, I want to commend you for 13 the work that you are doing and my question is, I 14 guess no disrespect to your opinion, but I also come 15 from a treaty area, a treaty 2. Treaty 2 and treaty 16 5 overlap. And my question is, you know, I guess the 17 growing demand by our First Nations people. I had 18 the opportunity to lead the community at one time. 19 My community is situated below the Hydro 20 development areas south of Grand Rapids. To the 21 south, we have agricultural development. And at one 22 point, as you stated that, you know, I can recall 23 back to my childhood that I don't think there was any 24 unemployment, you know, the trapping, you know, the 25 fishing. The hunting was abundant. And shortly 1950 1 after those years, a fur block was developed 2 overlapping the Treaty areas 2 and 5. Fur blocks 3 were to protect our way of life, mainly our trapping 4 in the late forties, early fifties. It's a similar 5 process as what the NCN has done through their 6 resource management area to protect, you know, those 7 traditional hunting areas. 8 And in my own experience, doctor, you know, 9 unfortunately the fur trade has been weakened. You 10 know, the hunting we enjoyed at one time is no longer 11 there due to settlements as you outlined. And I 12 agree that, you know, we welcome the new settlers and 13 they have I guess every right to enjoy the resources 14 in the country we so enjoy. 15 But my question to you is, firstly, I think it 16 was an excellent presentation by the Chief of NCN 17 and, you know, his councillors and his people as to 18 why they entered into this kind of an arrangement 19 with Manitoba Hydro. You know, through their 20 documentation, it's an excellent work that they have 21 done. But I'm not doubting that I'm making a 22 decision here now. 23 But my question to you, doctor, is for us, my 24 community, we're now over 100 per cent larger in 25 population than we were at the time you know. And if 1951 1 you look at the surveys that were done by NCN and I 2 think every First Nation is experiencing the same 3 dilemma, a fast growing population, the demand on our 4 resources. What then do we now do with the 5 unemployment you know? I'd like to ask you what do 6 you recommend to the Commission? What should 7 governments do, today's governments, you know, 8 today's corporation? I guess that is my question. 9 Thank you. 10 MR. KULCHYSKI: Well, there's a couple of 11 things I'll pick up from what you said and then I'll 12 answer your question directly. But one is, in 13 effect, this is a decision about whether the northern 14 communities are going to basically go the same way as 15 the southern communities. And the southern 16 communities, Aboriginal communities mostly had to 17 give up on the hunting way of life and experienced 18 extraordinary problems and are still trying to decide 19 then what kind of economies can they have because the 20 communities want to stay together. That's one of the 21 features that defines them. They want to remain as 22 communities. They want to remain connected to each 23 other but they have virtually no sustainable economy 24 and not a sufficient land base to build much of a 25 sustainable economy and so they are in serious 1952 1 trouble. 2 The northern communities have, many of them, 3 the basis for continued sustainable economy. And 4 that's effectively what we're talking about 5 destroying. And I've seen northern communities where 6 they have small scale economic development, a degree 7 of commercial fishing, a degree of tourism, a degree 8 of craft industries. And actually the communities 9 promote and support people going out on the land. 10 They have schools for the young children that take 11 place out on the land. They have programs that try 12 and support hunters and try and support people going 13 out on the land. So that you can use contemporary 14 technology to be settled in one place but use vast 15 regions worth of resources. 16 Technology, since really the mid-sixties, can 17 actually allow centralized communities to use much 18 larger land areas in a way that was much harder for 19 people to earlier in this century. And there's been 20 very little that's promoted, little to nothing that's 21 promoted that kind of a vision in Aboriginal 22 communities. I would say, you know, we can go the 23 path of industrial style economic development and 24 create marginal, very poorly supported 25 infrastructures of suburbs that look like poor 1953 1 versions of suburbs in Southern Canada. And I would 2 say ultimately create more despair and real hatred 3 for what's been done to the land that can't be 4 changed. 5 Or we can say stop and we can say maybe we 6 should look at what sustained the people here for 7 thousands of years and maybe there are ways with the 8 technology we have and the large amounts of land that 9 are still left intact that that could be the basis. 10 And then other things can work around it. You can 11 find other forms of economies that will work with it. 12 But until you change your thinking and say no, 13 this isn't some outdated way of life and this isn't 14 something that's gone and this isn't something that 15 we don't really care about anyway, you have to start 16 with the presumption this is something we value. 17 This is the bedrock of these communities and 18 everything else we're going to do is going to be, in 19 respect, working around that. It's a change in 20 attitude. 21 And that's what I think respect for the 22 treaties really implies, that's what the treaties in 23 my mind were about. So I would say those forms of 24 economic development. 25 Every time I see young people go out on the 1954 1 land with elders, I see young people who start 2 getting inspired and getting a little bit of hope and 3 who start believing in themselves. Every time they 4 are sent down to the south, they look at models and 5 say well, can I -- and they can achieve that but it 6 creates senses of doubt and insecurity. 7 I think people need to walk in the footsteps 8 from the past into the future and gain pride and have 9 that pride in what was done in the past. More 10 important than anything else, if people can have 11 that, they will have hope. And if they can have 12 that, they will have a future. 13 If they grow up having gone hunting and 14 fishing on the land with their grandparents and then 15 when they are in their twenties and thirties, they 16 will see that their own people decided to allow the 17 land to be destroyed, I don't see much hope there. 18 THE CHAIRMAN: Mr. Nepinak. 19 MR. NEPINAK: Thank you. Could you elaborate 20 a bit on the proposal that was laid out by the 21 proponents on traditional knowledge? 22 MR. KULCHYSKI: I didn't see what was laid out 23 by the proponents on traditional knowledge. But I'll 24 say this much. Again, with anything like that, 25 right, we can study it. We can put it in a box and 1955 1 put it in a museum, right. Hallelujah, it's in a 2 museum. People can go to see it one day a month. 3 That doesn't do anything for a culture. A culture 4 survives if it's alive. If you can hear the children 5 speaking their own language in the playground, you'll 6 know you've got a culture. 7 If we've got ten tonnes of volumes of reports 8 on traditional knowledge that have been researched 9 and put in the library, you don't have a culture, 10 you've got a library. 11 MR. NEPINAK: Thank you. 12 THE CHAIRMAN: Ms. Kathi Kinew Avery. 13 MS. AVERY KINEW: Professor Kulchyski, I just 14 have one or two comments about treaties. You 15 referred people to Supreme Court judgments where it 16 said to interpret them within the context of the 17 times. And surely it would be within the context of 18 the times to look at that Summary of Understanding 19 within the whole development that the Nisichawayasihk 20 are seeking. And part of it was what Mr. Nepinak 21 referred to the traditional knowledge, not to set it 22 aside in a museum but to ensure that if a project 23 goes ahead, that it would respect the sacred lands 24 and the viable lands that they would use for hunting. 25 So I wonder about your structural analysis if 1956 1 you're just looking at papers and speaking with one 2 component of the First Nation when actually they've 3 been working for several years, at least we heard 4 yesterday since 1996 to make sure if a project goes 5 ahead, it respects the people, the land, the 6 resources, the treaty. 7 MR. KULCHYSKI: Well, I should say I look at 8 the papers in the context of the travel I've done to 9 very many Aboriginal, particularly northern 10 communities. And I think about these things as a 11 human being on this earth and what the future holds. 12 The Summary of Understanding actually is not a 13 treaty document. It says it in the document itself. 14 It's kind of hidden at the very back. I'll read to 15 you what it says. It say, 16 "Nothing in this Summary of 17 Understanding or any other 18 arrangements or agreements 19 contemplated in this Summary of 20 Understanding which means the Project 21 Development Agreement that would come 22 subsequent from it is intended to 23 alter Aboriginal or Treaty rights. 24 Recognized and affirmed under Section 25 35 of the Constitution Act." 1957 1 It doesn't say diminish Aboriginal or Treaty 2 rights, it says alter which means that there's no way 3 that this document or the documents that flow from 4 them can actually be seen as a treaty which is one of 5 the weaknesses of these documents that I talk about 6 in my more detailed analysis in the first instance. 7 MS. AVERY KINEW: Would you say the Peace of 8 the Brave in Quebec is a treaty? 9 MR. KULCHYSKI: I would say it is, yes. 10 MS. AVERY KINEW: On what basis? 11 MR. KULCHYSKI: Well, I've talked to various 12 of the negotiators and none of them can answer that 13 question firmly. There's no language that says it 14 isn't a treaty. 15 So the Sioui decision, actually the one that I 16 referred you to, outlines the criteria for assessing 17 whether something is a Treaty or not. And it talks 18 about the capacities of the various parties and the 19 nature of the document itself. And I would say if 20 you apply those criteria, actually both to the 21 Northern Flood Agreement and to the Peace of the 22 Braves, you would have to conclude that both of those 23 documents are treaties. 24 What keeps this document from being a treaty 25 is that it says it's not a treaty, very clearly in 1958 1 black and white. 2 MR. SARGEANT: It doesn't say it's not a 3 treaty what you read to us. Basically it's a 4 non-derogation clause. It says it doesn't affect the 5 existing treaties. 6 MR. KULCHYSKI: It says it doesn't alter 7 Aboriginal or treaty rights. If it doesn't alter 8 Aboriginal or treaty rights, I don't see how it can 9 be then said to be a treaty because if it were a 10 treaty, it would entirely alter. 11 MR. SARGEANT: I'm not saying it is a treaty 12 but it doesn't say it's not a treaty. 13 MR. KULCHYSKI: I'm saying it looks clear to 14 me that it's not a treaty. 15 MS. AVERY KINEW: Sorry, I don't want to get 16 carried away in this direction. I wasn't necessarily 17 saying it was a treaty, I was applying the same 18 approach that if you're going to have an 19 understanding, you need the context of the times. 20 MR. KULCHYSKI: Well I would say for me the 21 overriding treaty that deals with this situation is 22 Treaty number 5 and that's where we'd need some 23 context. And there we had Aboriginal people who 24 wanted as strongly as possible to put in black and 25 white that their way of life would be protected. 1959 1 And to the extent that they could find 2 wording, they articulated that as a hunting way of 3 life in the English language. 4 MS. AVERY KINEW: The Supreme Court has also 5 said that you don't have to be frozen in time, you 6 can evolve. 7 MR. KULCHYSKI: Well, sure. And I think 8 hunting itself has evolved in time as it evolved in 9 time before Europeans ever arrived on the continent. 10 MS. AVERY KINEW: As a hunting people, I would 11 think Nisichawayasihk would have looked at how to 12 protect their people's right to continue hunting. 13 And from evidence that we've had, that things have 14 happened. Because they've decided to proceed as 15 co-proponents, they have changed the access road to 16 where this construction site might be. They've 17 changed the whole design of the dam to be a lower 18 head. And traditional knowledge in that sense has 19 been put to work. And that would be the context in 20 which I'm wondering are you interpreting this Summary 21 of Understanding? 22 MR. KULCHYSKI: Well, I appreciate that. 23 Although again, the language in the Summary of 24 Understanding, which is what I've got in front of us, 25 talks about normally the water levels would be in 1960 1 certain degrees and so I worry that that's -- I would 2 love to have a copy and I will look at a copy of the 3 Project Development Agreement when it comes forward. 4 But if the language there is as weak as the language 5 in the Summary of Understanding and if 6 Nisichawayasihk then is one of the proponents and has 7 an equity position, you start having a conflict of 8 interest around protecting the environment. And I 9 would say in general, you're very clearly moving away 10 from seeing the hunting economy as the basis of the 11 way of life. That part of it seems to me I can't see 12 how we can deny that. 13 MS. AVERY KINEW: Just two more things. The 14 structural analysis you're doing does say that you're 15 comparing an interim document, Summary of 16 Understanding, with a final document, Peace of the 17 Braves? 18 MR. KULCHYSKI: When I see the final document, 19 I'll do an analysis of that as well but I'm right now 20 analysing what I have in front of me which is the 21 Summary of Understandings between the Nisichawayasihk 22 Cree Nation and Manitoba Hydro. 23 MS. AVERY KINEW: The last point I'd just like 24 to ask about is it's been brought up before by CASIL 25 too as to whether Nisichawayasihk leadership is in 1961 1 conflict of interest. And wouldn't you say it's a 2 fact of life that Chiefs and Councils are called upon 3 to do many things at once? You have to protect 4 rights, you have to develop your economy. You have 5 to see to the needs of elders and people who require 6 assistance. You want to provide opportunities for 7 young people by getting broadband Internet into your 8 communities. I mean everyday is a conflict and you 9 have to balance the interests of many. 10 MR. KULCHYSKI: I would certainly say it's a 11 case that there are general competing forces that 12 Aboriginal leaders as other leaders in society have 13 to deal with that put them in conflict. When I talk 14 about conflict of interest, I am talking about a very 15 specific thing that this agreement contemplates which 16 is a group that will be co-owners of a project also 17 supposedly has a role in monitoring the environmental 18 degradation. That means there's a specific conflict 19 of interest where on the one hand, it's in your 20 interest because you're in debt to make sure that the 21 project makes money. And on the other interest, what 22 might limit that project making money is strict 23 environmental standards. That's a very specific kind 24 of conflict of interest that's embodied by this 25 document that I'm concerned about. And it's 1962 1 different than the general nature of having to make 2 political decisions as an Aboriginal or even as a 3 non-Aboriginal politician. I think that becomes kind 4 of an objective conflictual position. 5 MS. AVERY KINEW: Okay. Thank you. I won't 6 pursue it. I'm sure others will. 7 THE CHAIRMAN: Dr. Kulchyski, I find that it's 8 unfortunate that you did not go beyond the Memorandum 9 of Understanding. You talk in terms as if you had no 10 knowledge at all about the environmental impact 11 assessment about the project. And I would like to 12 hear your comments based on a broader understanding 13 of what's proposed here. 14 It's a fact of life that every community makes 15 decisions for its future and you did make reference 16 or a distinction between southern communities and 17 northern communities in terms of their 18 sustainability. And you did yourself indicate about 19 the hundreds of millions that are being put in 20 agriculture. In spite of that, it's changing and has 21 changed rapidly. It's not so surprising that 22 northern communities would like to ensure their 23 sustainability as well. And in spite of that, there 24 will be some changes. 25 A community such as NCN looks at carrying on 1963 1 its livelihood and its culture but at the same time, 2 they also need the finances to ensure the survival of 3 the community to retain their community. And you 4 seem to imply that hunting and trapping is going to 5 make it possible for the community to stay forever as 6 it is as if it was in a sort of a vacuum because it 7 pleases us all to look back and say, well, there's 8 great value and culture there and we have to find a 9 way of sort of building walls around it to make sure 10 it stays the way it was. I seem to hear that in your 11 interpretation here that because it's sort of the 12 last bastion somewhere in the world where we have a 13 language spoken, where we have cultural values, we 14 sort of have to ensure that we protect them every way 15 and we prevent it from choosing for themselves 16 economic development to retain its people to do 17 exactly what you want. 18 So I am not so sure that you have taken enough 19 of a broad view of the issue in terms of what the NCN 20 is proposing here. 21 MR. KULCHYSKI: I'll say a couple of things in 22 response to that, and I appreciate your concerns. 23 First of all, in terms of the sustainability, I would 24 say right now northern Aboriginal communities are 25 sustainable. What threatens their sustainability are 1964 1 projects like this. It's not a question of, as in 2 farming communities, they developed -- you know, 3 within the last 100 years, haven't proven themselves 4 sustainable and we found actually that they are not 5 sustainable and there's lots of problems. With 6 Aboriginal communities, they were there for thousands 7 of years. 8 THE CHAIRMAN: Is that why they are leaving 9 their communities? 10 MR. KULCHYSKI: I'll come back to that but let 11 me respond to your first question first. We'll get 12 back to why people are leaving their communities if 13 you want to ask that as a question. 14 Northern Aboriginal communities have proven 15 themselves sustainable. And it's something like this 16 that will put them in the situation where they become 17 no longer sustainable in my view. That's the 18 problem. I'm not thinking about culture behind 19 walls. I think culture has adapted, culture has 20 grown. 21 Aboriginal culture, like other cultures, has 22 changed over time. I am not talking about hunting is 23 something that people practice the way they practised 24 the same 200 years ago. Obviously technology has 25 changed. The ways and forms of hunting have changed 1965 1 quite dramatically. But the values underlying 2 hunting culture has remained remarkably consistent. 3 You know, anthropologists at the beginning of 4 the 20th century, all the talk was about Aboriginal 5 people are disappearing, Aboriginal culture is 6 disappearing. At the end of the 20th century, 7 there's this remarkable talk about people were 8 surprised to find that Aboriginal cultures are 9 surviving and thriving in many respects. No thanks 10 to projects like this, thanks to the fact that in 11 northern communities, they've been isolated from 12 projects like this. And that's proven the basis of 13 their sustainability and their ability to survive. 14 Now, you can laugh about cultural 15 distinctiveness. You can say what's another culture. 16 I don't laugh about cultural distinctiveness 17 actually. I think that if Cree culture disappears as 18 a meaningfully different culture from Northern 19 Manitoba, we have done the world an enormous 20 disservice and ourselves an enormous disservice. 21 Whatever any particular culture can tell us about 22 what it is to be human, about how we can live with 23 the world around us, about how we can treat other 24 human beings gets lost to us. 25 I don't laugh when I think about what happened 1966 1 to the Baothuck in Newfoundland. We don't even know 2 what language group the Baothuck belong to. I don't 3 laugh when I think that 200 years from now, people 4 might look back at these hearings and say these 5 people really weren't concerned about culture. Now 6 we don't have it. 7 The reason why I don't laugh about it is 8 because I think about those Aboriginal kids who are 9 leaving their communities. And I'll tell you for the 10 most part, many of them, they are leaving because 11 they haven't had the proper exposure to their own 12 culture. They haven't been able to be proud of who 13 they are as Aboriginal people because most of what 14 gets taught and most of what goes on around them 15 doesn't give them the opportunity. They don't get 16