2179 1 MANITOBA CLEAN ENVIRONMENT COMMISSION 2 3 VERBATIM TRANSCRIPT 4 Volume 9 5 6 Including List of Participants 7 8 9 10 Hearing 11 12 Wuskwatim Generation and Transmission Project 13 14 Presiding: 15 Gerard Lecuyer, Chair 16 Kathi Kinew 17 Harvey Nepinak 18 Robert Mayer 19 Terry Sargeant 20 21 Wednesday, March 17, 2004 22 Radisson Hotel 23 288 Portage Avenue 24 Winnipeg, Manitoba 25 2180 1 LIST OF PARTICIPANTS 2 3 Clean Environment Commission: 4 Gerard Lecuyer Chairman 5 Terry Sargeant Member 6 Harvey Nepinak Member 7 Kathi Avery Kinew Member 8 Doug Abra Counsel to Commission 9 Rory Grewar Staff 10 CEC Advisors: 11 Mel Falk 12 Dave Farlinger 13 Jack Scriven 14 Jim Sandison 15 Jean McClellan 16 Brent McLean 17 Kyla Gibson 18 19 Nisichawayasihk Cree Nation: 20 Chief Jerry Primrose 21 Elvis Thomas 22 Campbell MacInnes 23 Valerie Matthews Lemieux 24 25 2181 1 LIST OF PARTICIPANTS 2 3 Manitoba Conservation: 4 Larry Strachan 5 6 Manitoba Hydro/NCN: 7 Doug Bedford, Counsel 8 Bob Adkins, Counsel 9 Marvin Shaffer 10 Ed Wojczynski 11 Ken Adams 12 Carolyn Wray 13 Ron Mazur 14 Lloyd Kuczek 15 Cam Osler 16 Stuart Davies 17 David Hicks 18 George Rempel 19 David Cormie 20 Alex Fleming 21 Marvin Shaffer 22 23 Community Association of South Indian Lake: 24 Leslie Dysart 25 Merrell-Ann Phare 2182 1 2 LIST OF PARTICIPANTS 3 CAC/MSOS: 4 Byron Williams 5 6 Canadian Nature Federation/Manitoba Wildlands: 7 Eamon Murphy 8 Gaile Whelan Enns 9 Brian Hart 10 11 Time to Respect Earth's Ecosystems/Resource Conservation Man: 12 Peter Miller 13 Ralph Torrie 14 15 Trapline 18: 16 Greg McIvor 17 18 Displaced Residents of South Indian Lake: 19 Dennis Troniak 20 Joshua Flett 21 Frank Moore 22 23 Justice Seekers of Nelson House: 24 Carol Kobliski 25 2183 1 List of Participants 2 3 Pimicikamak Cree Nation: 4 Kate Kempton 5 William Osborne 6 7 Environment Approvals (Manitoba Justice): 8 Stu Pierce 9 10 Presenters: 11 Billy Moore - Private 12 Bill Turner - MIPUG 13 Caroline Bruyere - Private 14 Grand Chief Margaret Swan - Southern Chiefs 15 Gordon Wapaskokimaw 16 Rob Hillard - Manitoba Federation of Labour 17 Jim Murphy - Operating Engineers of Manitoba 18 Scott Kidd - Private 19 Allan Ciekiewicz - Private 20 21 22 23 24 25 2184 1 INDEX OF EXHIBITS 2 3 Number Page 4 5 DRSIL 1000: Presentation by the 6 Displaced Residents of 7 South Indian Lake, and 8 Justice Seekers of Nelson House 2310 9 PCN-1000: Oral submission of PCN 2337 10 PCN-1001: Statement of William Osborne 2338 11 OTH-1000: Presentation 12 submitted by Mr. Kidd 2351 13 DRSIL-1001: Recording -Hydro Development 14 Conference - Public Debate #2 & #3 2352 15 OTH-1001: Mr. Hilliard's typed presentation 16 to the Commission 2380 17 OTH-1002: Mr. Murphy's presentation 2397 18 OTH-1003: Presentation by Allan 19 Ciekiewicz 2419 20 21 22 23 24 25 2185 1 2 INDEX OF UNDERTAKINGS 3 4 UNDERTAKING NO. PAGE 5 6 7 No Undertakings given 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 2186 1 WEDNESDAY, MARCH 17, 2004 2 Upon commencing at 1:06 p.m. 3 4 THE CHAIRMAN: Good afternoon. We are about 5 to begin. And on the order paper for today, we will 6 begin with the presentation by Pimicikamak, PCN. And 7 I gather we're all ready so I will call upon Ms. 8 Kempton to come forward to make the presentation. 9 Before you begin, I am informed, Ms. Kempton, 10 that you had asked to make the presentation without 11 being questioned. And the Commission Panel has 12 discussed this issue and is of the opinion that as 13 one of the funded groups, you should be required to 14 abide by the same procedures as all the other groups 15 who will be presenting and those that have been 16 presenting. 17 You are presenting evidence, some of which is 18 new evidence, and therefore it is only fair that we 19 proceed in the same manner. 20 MS. KEMPTON: Thank you, Mr. Chair, 21 Commissioners, participants, audience. I am Kate 22 Kempton, K-E-M-P-T-O-N, legal counsel to Pimicikamak 23 in this matter. To my right is William Osborne, 24 Executive Council Member for Pimicikamak responsible 25 for intergovernmental relations. 2187 1 THE CHAIRMAN: Mr. Grewar. 2 MR. GREWAR: I'd ask you to both state your 3 names for the record, please. 4 MS. KEMPTON: Kate Kempton. 5 MR. OSBORNE: Mr. William Osborne. 6 MR. GREWAR: Are you both aware that it is an 7 offence in Manitoba to knowingly mislead this 8 Commission? 9 MS. KEMPTON: I am. 10 MR. GREWAR: Do you promise to tell only the 11 truth in proceedings before this Commission? 12 MS. KEMPTON: I do. 13 MR. GREWAR: Thank you so much. 14 15 (KATE KEMPTON: SWORN) 16 (WILLIAM OSBORNE: SWORN) 17 18 THE CHAIRMAN: You may proceed. 19 MS. KEMPTON: Thank you. In regard to the 20 Chair's comments about questioning, I've never 21 indicated that I wouldn't entertain questions. 22 Please understand I'm here as legal counsel, I am not 23 here as a witness. 24 This what we'll be presenting today is a 25 summary statement, Pimicikamak's position in regard 2188 1 to the issues raised and relevant to this proceeding. 2 Mr. Osborne will be making a brief statement 3 at the end. If you wish to question him or parties 4 wish to question him, he will be available for that 5 as well. 6 THE CHAIRMAN: Thank you. 7 MS. KEMPTON: The Wuskwatim proposal and this 8 hearing have, in Pimicikamak's submission, come down 9 to two key issues at this stage. The first is 10 substance. What are the nuts and bolts of what we're 11 dealing with here? 12 The nuts and bolts of what we're dealing with 13 is a failure or a refusal by Hydro to acknowledge 14 that we don't know what the current Hydro system and 15 its impacts are and thus we cannot know how Wuskwatim 16 will affect these given current information. I'd 17 like to take us through a very brief overview of 18 what's happened in that regard. 19 Hydro first denied that Wuskwatim would have 20 any impact on the operations and impacts of the 21 existing Hydro system to which it would be added. 22 Hydro later said, after repeated urging by 23 Pimicikamak, that there would be system impacts. But 24 Hydro then stated that these impacts would be minimal 25 and therefore could effectively be ignored. That is, 2189 1 there should be no requirement to study them or 2 substantiate that assertion with evidence. 3 Pimicikamak challenged the accuracy of this 4 bare assertion of minimal on the basis that there was 5 and is to date no evidence to support it and there is 6 something to speak against it, a long and 7 questionable track record by Hydro in the past. 8 Assertions of minimal impacts were made by Hydro in 9 the past and turned out to be completely wrong. 10 In the early 1970s, Hydro representatives came 11 to Pimicikamak territory, held out a pencil and said 12 the water fluctuations and the impacts will be no 13 greater than the length of this pencil. To date, 14 Pimicikamak has recorded impacts as great as nine 15 feet. That is many many times greater the water 16 fluctuations, the water levels have fluctuated and 17 changed many many more times than this pencil. But 18 that's what they were told in the early 1970s. This 19 pencil would be all that they would have to worry 20 about. People, lands and waters have suffered 21 tremendously as a result. 22 Further, Pimicikamak asked what does minimal 23 mean? Wuskwatim will not operate by itself. It will 24 be part of the existing Hydro project. If you add 25 impacts from Wuskwatim to impacts that exist and 2190 1 continue to grow worse, can you still claim minimal? 2 How much of a kick is enough to push things over the 3 edge? 4 Pimicikamak kept asking for evidence and 5 disclosure about such system impacts and the 6 economics of Wuskwatim in the system because 7 economics drive Hydro operations and operations, in 8 turn, determine impacts. We were repeatedly refused 9 such information. 10 Then at the main hearing on the first day, 11 Hydro explicitly acknowledged, because of how the 12 Hydro system works, that these impacts would be felt 13 more at or near Cross Lake, Pimicikamak territory, 14 than anywhere else due to seasonal matching. It 15 acknowledged that export pricing is a major factor in 16 how the system is operated and in determining how 17 Wuskwatim could alter system operations, and thus, 18 impacts. 19 But then, brushing aside these admissions, 20 Hydro said Wuskwatim's impacts on the existing system 21 would be imperceptible. Now they are saying less 22 than minimal, now we're at imperceptible. The only 23 so-called evidence that Hydro gives for this position 24 is "25 years of experience operating the hydro 25 system." But this is 25 years of operating the hydro 2191 1 system to some extent, even a great extent in the 2 dark. There had been no review or comprehensive 3 analyses of impacts from the existing system and no 4 environmental licence requiring monitoring or 5 mitigation. And within these 25 years, many of 6 Hydro's practices had been subject to severe 7 reprimand as a result of two independent inquiries, 8 a judicial inquiry and an inter-church inquiry. 9 Hydro might have 25 years of experience but is 10 it, with nothing more, valid experience that we can 11 rely on in this review? No denigration to my father 12 but it's like my father would often tell me, "Don't 13 tell me how to drive, I have 40 years of experience." 14 And yet he puts two feet to the pedals at the same 15 time. If you don't learn it properly and don't learn 16 how to do it properly anywhere through your 17 experience, it doesn't count for very much. 18 We have a proposal that by Hydro's own 19 accounting and what experts are saying is likely 20 marginally economically viable at best. And that is 21 without taking account of potential further 22 environmental and socioeconomic consequences; that 23 is, without taking those into account. Are we really 24 still in the dark ages of thinking that any potential 25 revenue is good for society despite the costs? Are 2192 1 we really still in the age of oppression when 2 indigenous peoples are somehow just expected to bear 3 the burden of those costs? That is the issue of 4 substance. 5 The second issue is that of procedure. A 6 process that to date has failed the substance. 7 Despite the fact that Hydro has now finally 8 acknowledged that there will be system impacts and 9 that these could well be borne mostly in and around 10 Cross Lake or by Pimicikamak. And despite the fact 11 that Hydro offers no credible evidence to support its 12 assertions that such impacts should be written off or 13 ignored as imperceptible, this process proceeds as if 14 all is well. 15 What do any of us think this review process is 16 really about? Style? A formal hearing setting? A 17 formal agenda? The exchange of thousands of pieces 18 of paper? Or is it about substance? Where 19 necessary, core relevant information is exchanged 20 subject to critical analysis and scrutiny so that 21 decisions are made in the light and not the dark. 22 Given what has happened to date, you can't 23 blame anyone for thinking that the process is focused 24 too much on style. There appears to be an attempt, 25 for instance, by Hydro to rush this proposal through 2193 1 without anything close to proper disclosure and 2 analysis of system impacts, their economic drivers 3 and alternatives to Wuskwatim. 4 Instead, we have Hydro justifying its own lack 5 of disclosure by saying such disclosure is not 6 needed. Again, they are justifying their own lack of 7 disclosure by simply saying it's not needed. They 8 call it circular argument for a reason. No one is 9 stopping this. 10 Why such a push to get speedy approval? It's 11 not as if the lights are going to go out if it takes 12 longer to properly review Wuskwatim. In fact, it's 13 not as if the lights would go out at all if Wuskwatim 14 isn't approved. By Hydro's own account, Manitoba 15 will not need Wuskwatim until 2020 and that's even 16 questionable. 17 One is tempted to ask what is Hydro afraid of 18 from a full review? Why have time and resources not 19 been made available to ensure a fair and full review? 20 Pimicikamak stated back in the motion hearing 21 of September 30th that unless the issues of substance 22 were dealt with, this process might turn out to be a 23 rubber stamp. Is this a process that will simply add 24 to the store of things over which the public is 25 cynical in regard to government or agency review and 2194 1 other processes or can the CEC still effect a 2 difference. 3 I'd like to talk a little bit more about 4 substance, system impacts. 5 There are core issues relevant and necessary 6 to determining whether Wuskwatim should be approved 7 or not, and if so, under what conditions. That is 8 why we're here. And information about such issues 9 has not yet been disclosed. As long as it remains 10 undisclosed and hidden from public and CEC scrutiny, 11 any conclusions will be made in the dark. I've said 12 this 100 different ways and 100 times, it still 13 remains the case. 14 These issues are system impacts meaning how 15 Wuskwatim, if added to the system, will affect the 16 current operations and impacts of that system and 17 economics. Again, economics are the driver of 18 operations which again are the driver of impacts. 19 There is a system, there is a Hydro project. 20 It's called the Churchill River Diversion, Lake 21 Winnipeg Regulation, Nelson River Works and 22 Operations. By its very name, we can see that this 23 system comprises a large integrated complex. 24 Wuskwatim would become a part of and affect this 25 complex. System impacts are not separate and apart 2195 1 from Wuskwatim. They are not some peripheral issue. 2 They can't be. 3 The key problem is that we don't know how and 4 to what extent Wuskwatim will affect existing impacts 5 of the project and that's how good or bad Wuskwatim 6 might be or how to manage it in all of its impacts. 7 There is no conceivable way that understanding system 8 impacts would not be relevant and likely of core 9 relevance to approval of a project that was to be 10 added to the system. 11 System impacts have not been deleted from the 12 Wuskwatim proposal. The proposal was changed from 13 its original design but that didn't delete the system 14 impacts. Evidence from Chris Goodwin, former head of 15 System Planning at Manitoba Hydro at the September 16 30th motion hearing confirms that the reason that the 17 impacts will be more minimal than originally designed 18 in the immediate area of Wuskwatim is because they 19 have been transferred to other parts of the system 20 including and especially to Cross Lake and Jenpeg. 21 The alteration of Wuskwatim's operational design from 22 its original has resulted in a transfer, not a 23 deletion, of impacts. 24 Why does this proceeding carry on as if this 25 evidence had never been given and as if Pimicikamak 2196 1 was not most likely to be affected? We aren't 2 looking at system impacts at all. 3 Without a cumulative effects assessment, 4 looking at the system and its impacts now and in the 5 future, how is it possible to conclude that there 6 will be no material impacts as a result of Wuskwatim? 7 How is it possible to determine whether changes to 8 something might be material if you don't consider how 9 seriously affected that the thing already is that 10 you're going to further affect. 11 Bald assertions remain bald unless they are 12 tested. Bald assertions should not be able to 13 justify themselves by the failure to test them by 14 saying we don't need to. It doesn't make sense. 15 It's not as if we shouldn't know better. Well, 16 likely no one knows the extent to which each impact 17 of the system interacts with the others and the 18 ecosystems. We do know enough to know that such 19 impacts have been devastating. 20 The inter-church inquiry report of December 21 2001 stated that the Hydro project constitutes an 22 ongoing ecological, social and moral catastrophe. 23 These are ongoing catastrophic effects. This is not 24 in the past as Chief Jerry Primrose said. This is 25 today, tomorrow, and many tomorrows to come until we 2197 1 start doing our job of assessing and understanding 2 the Hydro project as a whole. 3 Until we start managing the impacts from the 4 Hydro project as a whole, Wuskwatim will become yet 5 another part of this whole as would Conawapa, Gull 6 and many other proposed additions. These are 7 catastrophic impacts. 8 Why does this proceeding carry on as if 9 Hydro's marketing propaganda of clean, green and 10 renewable is factually correct? Since when is 11 renewable defined as ongoing catastrophe? When have 12 we ever just blindly accepted an ad campaign as the 13 truth without challenging it and demanding evidence 14 to support it. 15 But we do seem to just accept these words as 16 magic here and either fail or refuse to understand 17 what is really going on. We seem to accept the 18 marketing words that Wuskwatim itself is 19 environmentally friendly because it doesn't flood 20 much and it's low head. When are we going to start 21 getting it that flooding is by far not the most 22 important measure of impacts in this system. When 23 are we going to start getting it that Wuskwatim would 24 feed off the current project and the catastrophic 25 impacts that it causes and continues to cause? When? 2198 1 When we demand full information from Hydro about what 2 all the impacts are so we can then and only then 3 understand how to best mitigate and manage them as 4 more and more development is added to this single 5 integrated system. 6 While the CEC and others might wish to take 7 Hydro at its word, through bitter experience, some of 8 which was revealed in the Tritschler Judicial 9 Inquiry, Pimicikamak is of the opinion that blind 10 acceptance of Hydro's assertions is imprudent. 11 Further, this entire proceeding is about not blindly 12 accepting anything but ensuring that there is 13 sufficient testing of all assertions and sufficient 14 disclosure of all necessary information. 15 Since this proceeding is not challenging 16 Hydro's bare assertions about the pencil affect, 17 Hydro's assertions have been allowed to date to 18 govern this entire proceeding. This is entirely 19 contrary to the very purpose of this sort of review. 20 Now, because core issues of substance have been 21 brushed aside, Pimicikamak is faced with a proposal 22 that could make a very bad situation worse in ways or 23 degrees that Hydro refuses to consider and disclose. 24 Let's talk a little bit more about procedure. 25 This CEC proceeding has failed to date to address 2199 1 core issues of substance, being system impacts and 2 their economic drivers. Participants have not been 3 given the information required to test the assertions 4 of Hydro that we can just brush aside system impacts. 5 And I'd like to talk about how that's happened. 6 Manitoba Hydro has itself defined what is 7 relevant and important and what is not and then 8 disclosed what it deems it should and not disclose 9 what it deems it doesn't have to based on this 10 definition. 11 Neither the heavily papered interrogatory 12 process nor anything in this main hearing to date has 13 resulted in disclosure and analysis of system impacts 14 and their economic drivers. Instead, we get circular 15 argument after circular argument that amounts to 16 Hydro saying it isn't important because we say it 17 isn't important. And since we say this, we don't 18 have to disclose anything to prove it. 19 The interrogatory process was largely a 20 significant waste of time and money since core 21 relevant information was not disclosed through it. 22 And this is despite great attempts by participants to 23 get at this information. Our written submission to 24 the main hearing outlines Pimicikamak's attempts to 25 get at this core information about system impacts and 2200 1 their economic drivers and Hydro's refusals to 2 provide it. I am not going to go over all of that 3 now. 4 We now have lots of witnesses and 5 cross-examination in the main hearing. That's good. 6 But none of it is able to get at the core issue of 7 system impacts because simply Hydro refuses to reveal 8 or deal with these. All this procedure might look 9 good but that's because we're dancing on the surface 10 when the real stuff, the big issues, are below the 11 surface and a lot of those issues aren't very pretty. 12 We're not just skimming the surface, we're 13 racing over it on some fast track. Pimicikamak and 14 other participants have not been given the 15 information or resources to check this race. And 16 because of this, it is likely to be a race right into 17 a dark tunnel. We are virtually no further ahead in 18 regard to system impacts and their economic drivers 19 than when this proceeding started and certainly 20 further behind in terms of resources. It appears 21 more and more likely as we race ahead on the surface 22 that any conclusions, as a result of this proceeding, 23 will in fact be made in the dark. 24 Further in what might be an attempt to deflect 25 attention from the CEC proceeding, Hydro raised in 2201 1 its rebuttal to Pimicikamak other processes in which 2 Pimicikamak was or is involved suggesting that Hydro 3 was prepared to offer information but Pimicikamak 4 didn't take it or accepted it as wholly sufficient. 5 First let's talk about the public information 6 process which Hydro raised. Hydro said it wasn't 7 allowed into Cross Lake to bring information to the 8 citizens there. People at Cross Lake are traumatized 9 by what has been happening to them as a result of the 10 existing Hydro project. They are traumatized by the 11 false story of the pencil. Before allowing Hydro in 12 to hold up yet another pencil, Pimicikamak needed to 13 first make sure that this time, the pencil story was 14 the truth. Pimicikamak has of course to date 15 received no information to substantiate this. 16 Second, Hydro raised the consultation process 17 under Article 9 of the NFA. Hydro submitted meeting 18 notes to this Commission from George Rempel of TetrES 19 as if, I don't know, that these were approved and 20 accepted by Pimicikamak as minutes of this meeting. 21 They were not. Pimicikamak and its counsel had never 22 seen these notes prior to them being submitted to the 23 CEC. They are notes with Hydro's spin on things. 24 They do not accurately reflect Pimicikamak's repeated 25 attempt in this Article 9 process as well to get core 2202 1 information about system impacts and their economic 2 drivers. 3 What they do reflect, to some degree, is 4 Hydro's refusal to provide such information. 5 Pimicikamak's decision there in that process to 6 accept what information it could get in no way 7 indicates that Pimicikamak accepts the merit of 8 providing less information than is necessary. It 9 appears that Pimicikamak will now have to rely on the 10 Section 35 consultation process. Let's talk about 11 that. 12 Consultation under Section 35 of the 13 Constitution. It's the responsibility of the Federal 14 and Provincial Crowns. And that responsibility is to 15 ensure that if Wuskwatim goes ahead, it does so in 16 such a way as to minimize any adverse impacts on 17 Pimicikamak and other affected Aboriginal peoples. 18 This process has been proceeding very slowly 19 but it's still moving ahead. We're happy to hear, or 20 that I read in the transcript, that Hydro, through 21 Mr. Wojczynski, has confirmed that no licences are 22 going to be issued for Wuskwatim until the Section 35 23 consultations are complete. That's good. 24 We remind the Commission that we suggested 25 back in our Motion hearing of September 30th that it 2203 1 made sense to apply the disclosure standards required 2 under Section 35 to the CEC process as well to ensure 3 consistency and to ensure that the CEC process would 4 not be a waste of time. That of course hasn't 5 happened. 6 In summary, the Commission should not accept 7 in any way that other processes or consultations have 8 to date been adequate to reveal and analyze the 9 information necessary to knowing whether or not 10 Wuskwatim should be approved, and if so, under what 11 conditions so as to minimize adverse impacts. The 12 legal standards required in Section 35 consultation 13 should get at this information but it is not yet 14 disclosed, regardless of any other process pertaining 15 to Wuskwatim. The Commission has its own legal 16 mandate and duties which Pimicikamak has submitted 17 from day one require information and analysis of 18 system impacts and their economic drivers and how 19 Wuskwatim will alter these. The Commission cannot 20 skirt or shelve its own duty on the basis that some 21 other process might do this job. 22 There is another "process" that has been the 23 focus of some attention and cross-examination in this 24 hearing, being Pimicikamak's U.S. campaign of truth. 25 We're happy to hear so much attention being given to 2204 1 it even in regard to witnesses who were not here on 2 Pimicikamak's behalf in any capacity. Of course the 3 campaign was mischaracterized as against the purchase 4 of hydro power. It is not. It is against continuing 5 unchecked devastation wrought by impacts from the 6 production of this hydro power and an appeal to clean 7 up and mitigate and find cleaner and safer solutions. 8 Most campaigns are started by people who feel 9 that other avenues for solutions are failing or not 10 working well. This certainly seems to be bearing 11 out. The fact that Pimicikamak, a nation struggling 12 to survive on so many fronts, felt forced to 13 undertake such campaigns, should indicate the extent 14 to which rights have not been honoured through other 15 means. And the fact that people in the U.S. and 16 Canada and internationally are paying attention, even 17 in some instances in hostile ways, indicates that the 18 issues Pimicikamak is raising are very important to 19 many. 20 We ought to wake up and deal with them and not 21 brush them aside or under the carpet. We ought to 22 deal with them whether as a legal responsibility to 23 do so including here. These issues will not go away 24 by ignoring them. Neither will Pimicikamak. 25 If this proceeding does not address the core 2205 1 issues repeatedly and consistently raised by 2 Pimicikamak, this will be a failure that might well 3 affect all Manitobans and others but it will 4 certainly be a failure that we have heard is likely 5 to affect Pimicikamak most. History repeats but it 6 doesn't have to. 7 There are ways out. There are things that can 8 be done. Pimicikamak proposed the following remedy 9 or suggestion in its written submission to the main 10 hearing. For the CEC to clearly state that this 11 proceeding requires full information on existing 12 system impacts and how Wuskwatim might alter these 13 without any assumptions or bald assertions of what's 14 minimal, what's not, what's relevant, what's not, by 15 Hydro. Full information would include what is known 16 and what can be learned through different modelling 17 and other reasonable and not onerous research 18 techniques. If the Commission were to do this, the 19 proceeding would have to be adjourned until all such 20 information was disclosed and until sufficient 21 resources were allocated to the Commission and to the 22 participants to test the information. 23 It is true that it's always difficult to 24 assess cumulative effects. This is no reason not to 25 do so. When cumulative effects are the very essence 2206 1 of what is relevant to a process analyzing a 2 development that will be added to and alter one big 3 integrated complex. Cumulative effects are it, the 4 most, the important thing. There is no way around 5 it. We must start by understanding what is already 6 there so we can understand what each new addition, 7 including Wuskwatim, will do to that so we can 8 understand how to manage the thing for what it is, 9 one integrated whole. 10 If what happens with this Hydro project is 11 guided by what should happen, i.e. what is in the 12 best interest of the public and the environment, then 13 in this case, we must start with an understanding of 14 existing impacts. This understanding will no doubt 15 help determine ways in which the system should and 16 should not develop. It will help determine what is 17 working and what is not and thus where it is feasible 18 to go and where it is not. 19 This would be the start of developing the 20 holistic picture of hydro development now and in the 21 future in Manitoba that is sorely lacking right now 22 but could still be acquired. Only such a picture 23 will allow Manitobans to rationally make 24 determinations about whether anything should be added 25 or changed, and if so, what, when, how and how it 2207 1 should be managed. 2 If the above steps are not taken and the CEC 3 proceeds to make substantive recommendations, it is 4 likely that Wuskwatim will be approved in the dark, 5 further perpetuating the lack of knowledge and 6 understanding and thus the failure to set conditions 7 to ensure appropriate environmental management. As 8 Wuskwatim is the first of a number of new Hydro 9 developments being proposed, the ramifications of 10 this darkness loom exponentially larger the more we 11 look into the future. 12 If the above steps are taken, however, if 13 there is sufficient knowledge and understanding of 14 the existing impacts and how this one development 15 might affect these, then this will guide how to 16 conduct a cumulative effects assessment of Wuskwatim 17 in combination with other future developments. Light 18 shed here and now will in turn have exponential 19 positive effects well into the future. 20 If the Commission feels it cannot, at this 21 stage, take the above steps I've mentioned by 22 requiring this information now, ensuring that it's 23 delivered and subjected to proper and critical 24 analysis and debate, then the Commission, without 25 having that information, would effectively be in the 2208 1 position of approving, pardon me, a pig in a poke. 2 Pimicikamak submits that the Commission should 3 submit its report to the Minister making it clear 4 that as a result of Hydro's failure to disclose core 5 necessary information and a lack of resources to 6 analyze this, the Commission is not in a position to 7 make recommendations. 8 Pimicikamak's opinion, there is no other 9 alternative but the two put before you at this point. 10 William. 11 12 (MR. OSBORNE SPEAKS IN CREE) 13 14 MR. OSBORNE: Good afternoon, Commissioners. 15 Good afternoon to you all. I welcome each and every 16 one of you. My name is William Osborne. I am a 17 member of the Executive Council of Pimicikamak with 18 responsibility for intergovernmental affairs. Thank 19 you for the opportunity to tell you something about 20 our concerns. 21 We are not against development. We support 22 sustainable development. But we do not support 23 development that causes more damage to our lands and 24 our lives. We believe that developers should find 25 out and face up to the truth about what they are 2209 1 doing. Developers should do this, not in a hostile 2 or adversarial way, but in an open and an honest way. 3 Our experience is that Manitoba Hydro is 4 destroying critical boreal ecosystems. It is 5 destroying our place in the world. Our experience is 6 that Manitoba Hydro has not told the truth about this 7 in the past. 8 Even today, Manitoba Hydro does not honestly 9 admit the damage it is causing. It even promotes its 10 energy as clean, green and sustainable. For example, 11 take a look at the big wall picture down Portage 12 Avenue at St. James Street. This is a big lie. It 13 is profoundly offensive and damaging to our people. 14 In hiding the damage that its project is 15 doing, Manitoba Hydro also does very little to remedy 16 that damage. In this way, our impoverished citizens 17 subsidize cheap energy exports. 18 Our people are living today with a Manitoba 19 Hydro project that a public inquiry, a public inquiry 20 that listened to the evidence and considered the 21 facts, described as an ecological, social and moral 22 catastrophe. We understand that Manitoba Hydro has 23 grudgingly admitted that Wuskwatim promises more of 24 the same, more of a catastrophe. 25 Manitoba Hydro says it will not be a lot more 2210 1 of a catastrophe relative to what we are already 2 experiencing. They say it will be imperceptible. It 3 would not surprise us if it is imperceptible to 4 Manitoba Hydro because our experience is that 5 Manitoba Hydro does not want to know what it is 6 doing. 7 We find Manitoba Hydro's assurances to be 8 neither credible nor trustworthy. We are concerned 9 that Manitoba Hydro may once again not be telling the 10 truth. 11 However little or however much extra 12 catastrophe Wuskwatim might cause, we should not have 13 any increase in this catastrophe deliberately 14 inflicted on us especially while most of the promised 15 remediation of existing impacts has not been done. 16 We understand that there are limits on what 17 this Commission can do. We understand that the 18 Manitoba Government may have already decided to build 19 Wuskwatim. However, we ask the Commission to uphold 20 the integrity of its mandate. 21 The Pimicikamak people respectfully ask the 22 Commission to tell the Manitoba Government that the 23 Commission cannot recommend, with confidence, any way 24 to build and operate this dam that is consistent with 25 effective and environmental management. 2211 1 THE CHAIRMAN: Thank you. Mr. Sergeant. 2 MR. SARGEANT: First of all, Ms. Kempton, I 3 would like to thank you for a very thoughtful 4 presentation today and I think I can assure you that 5 we will give your concerns and those of Mr. Osborne 6 and those of the people of PCN very serious 7 consideration. 8 I would like to challenge your assertion or 9 your criticism of us procedurally for not having 10 considered the matter of system impacts to date. I 11 would simply note that while, strictly speaking, that 12 is true, we are still involved in the NFAAT part of 13 the proceedings, we have gone somewhat beyond our 14 schedule and we have yet to turn to the EIS portion 15 of the consideration. At that time, we will canvass 16 those issues I think very thoroughly. 17 I would like to ask a question of either of 18 you. 19 And, Mr. Osborne, just in your final comments, 20 you spoke about the impacts or you alluded to the 21 impacts on your community. What specifically are 22 those concerns or is your concern the fact that the 23 information, if or such as it exists, has not been 24 released? What impacts will Wuskwatim have on the 25 Pimicikamak Cree Nation? 2212 1 MR. OSBORNE: Well, let me put it this way. 2 Many years ago, I was a young fella not knowing the 3 politics or the global economics political actions. 4 I was told many many years ago some people came to 5 our homeland and talked to our people about Hydro 6 development projects. And they said this is only how 7 much we will indirectly or directly affect your 8 homeland. To this day, I have seen it nine feet or 9 more erosion, boreal forest fall into the lake. 10 Here we are again as an individual old enough 11 to know and to understand what's happening. I 12 personally don't want to see the same process of lies 13 happening to my people. The same process of promises 14 not being fulfilled way after the fact. The same 15 process of having to do the way it's supposed to be 16 done. So I'm particularly concerned that if they are 17 going to do something, do it right. If you don't 18 meet your own laws or criterias, rules or 19 regulations, don't do it. Respect your own laws and 20 respect what people say about any development. 21 MR. SARGEANT: Thank you. 22 MS. KEMPTON: We had been raising all along in 23 this process that we couldn't answer that question 24 and neither can the Commission and neither can anyone 25 because the information required to answer it hasn't 2213 1 been disclosed. How will Wuskwatim affect 2 Pimicikamak, Cross Lake, other parts and other 3 peoples who live by and on the lands that are 4 affected by the system. 5 We're still there today but not entirely. We 6 don't have the information, we don't have the 7 details. We don't know if it's a pencil cap, a 8 pencil, a yard stick, a mile, we don't know that. 9 Again, because Hydro hasn't disclosed that. But the 10 point that Mr. Osborne was making is even if it's a 11 pencil cap or a pencil, degrees more, water 12 fluctuation and all the damage that comes from that. 13 It's not -- it doesn't exist by itself. It's not the 14 only thing that's there. What's there is a massive 15 amount of catastrophic destruction already. 16 If Hydro is now saying that Cross Lake, and it 17 is saying, Cross Lake would be the most affected in 18 the system because of how it operates, then you're 19 talking about adding more to what's already 20 catastrophic. That's not acceptable in anybody's 21 laws, moral, legal or otherwise. 22 MR. SARGEANT: Thank you. 23 THE CHAIRMAN: Mr. Mayer. 24 MR. MAYER: Ms. Kempton, you've indicated that 25 your concern, your substantive concern is cumulative 2214 1 system impacts, correct? 2 MS. KEMPTON: Yes, and the economic drivers 3 behind them, but that's correct. It's the system 4 impacts. 5 MR. MAYER: You will agree and you have stated 6 that Hydro's bald assertions need to be tested? 7 MS. KEMPTON: That's correct. 8 MR. MAYER: You will agree with me, won't you, 9 Ms. Kempton, that in a process like this, that the 10 two methods of testing such evidence, which bald 11 assertions given under oath happen to be evidence, 12 are by the purpose of cross-examination and by the 13 employment of independent experts to, in fact, 14 research and determine whether or not Hydro's experts 15 are correct. Would you not agree with me? 16 MS. KEMPTON: Not entirely. I'd say that's 17 some of the methodology. But looking to my right and 18 to the people sitting at the tables out there, 19 there's another important one you missed which is 20 providing the resources and information, mostly 21 information, from Hydro necessary for the public 22 participants especially those most likely to be 23 affected to be able to test the assertions. 24 MR. MAYER: That's three, and I'm sorry, and I 25 missed the fourth. And that's the fourth is the 2215 1 evidence of the people most affected by any past 2 developments of Hydro. Will you agree with me that 3 that also should be added to the list? 4 MS. KEMPTON: I'd say that should be at the 5 top of the list. 6 MR. MAYER: And, Ms. Kempton, you will recall 7 at the participant assistance hearings, you advised 8 the Commission it was your intention to provide 9 evidence from a Mr. Robert McCullough and a Mr. Ian 10 Goodman who were apparently, as we were told, experts 11 in the issues of system effects. Do you recall that? 12 MS. KEMPTON: That's our original submission 13 and our original budget. That evidence was provided 14 in part at the motion. 15 MR. MAYER: Well, interestingly enough, Ms. 16 Kempton, your motion is not evidence before this 17 hearing and I'm sure you are well aware of that, are 18 you? 19 MS. KEMPTON: In our -- first of all, let's 20 cut through this. All the independent expert 21 assessment including by energy experts like Ian 22 Goodman and Robert McCullough, all of that good as it 23 is in the world cannot dig deep enough if they are 24 not able to get the information from Hydro that they 25 require if they can't get baseline core information 2216 1 or get information about how Hydro has reached its 2 conclusions to test the accuracy and veracity of 3 that. That's the point that I have been making and 4 Pimicikamak has been making. 5 We can, as I said, dance on the surface. We 6 can do a lot. We can try. But if you don't have the 7 thing there in front of you, the information that you 8 need to test, then you're testing in a vacuum. 9 I'm not saying the Commission hasn't received 10 some good information but it hasn't received the 11 information necessary by the participants and by the 12 Commission to be able to test the assertion of 13 minimal impacts. 14 MR. MAYER: Ms. Kempton, I think I heard you 15 say that before. I am not sure that it was 16 responsive to my question. But as a matter of fact, 17 I'm advised, and I was part of the committee, I 18 believe you were allotted or awarded by the Minister 19 something in the area of $170,000 in participant 20 assistant funding; am I correct? 21 MS. KEMPTON: Pimicikamak, as a participant, 22 was awarded $160,000 which is 70 per cent of what we 23 submitted we required. 24 MR. MAYER: $160,000. And we were also 25 advised by our staff that you have informed us that 2217 1 you do not intend to call any other evidence other 2 than the two of you here; am I correct in that? 3 MS. KEMPTON: Again, let me be clear. The 4 information today, if you want to call William 5 Osborne's submission as evidence, that's up to you. 6 But the evidence I am used to dealing with is closer 7 to being court-defined evidence. The submission 8 today was a summary statement of Pimicikamak's 9 position. 10 MR. MAYER: I understand it's a summary 11 statement of Pimicikamak's position. But the 12 evidence before this Commission is limited to what we 13 hear here and you have advised the Commission, have 14 you not, that you intend to call no other evidence or 15 whatever it is you choose to call what yours and Mr. 16 Osborne's statements just were, you intend to do 17 nothing else; am I correct? 18 MS. KEMPTON: Yeah. In our written submission 19 to the main hearing, it does say that in deriving 20 the, whatever you want to call it, conclusions and 21 statements that we have, we are relying on the 22 evidence we had previously submitted to the motion 23 hearing. So I am expecting that in the sense that 24 it's been submitted and accepted by the Commission, 25 it is before the Commission at this hearing but no 2218 1 further evidence would be submitted, that's correct. 2 MR. MAYER: Ms. Kempton, again, you've 3 mentioned procedure and the procedures of the 4 Commission and I really want to try to get this 5 clear. 6 MS. KEMPTON: Um-hum. 7 MR. MAYER: Firstly. You will understand that 8 the people who are sitting here today are not the 9 same people who were sitting there on September 20th. 10 You will acknowledge that? 11 MS. KEMPTON: Yes. Not everybody is the same, 12 that's correct. 13 MR. MAYER: This is a different panel. 14 MS. KEMPTON: Part of the composition is 15 different, certainly. 16 MR. MAYER: And you are a lawyer, I am a 17 lawyer. You will concede that evidence given on a 18 motion is not necessarily evidence at the hearing, 19 correct? 20 MS. KEMPTON: No, I don't agree. I don't know 21 where you're going but I guess if you're trying to 22 figure out procedurally what we have to take issue 23 with, we regard this as an entire proceeding from 24 beginning to end. The interrogatory process is part 25 of it as was our motion evidence, argument, 2219 1 submissions and whatnot that have happened from the 2 beginning of it through to the end we regard as one 3 single proceeding. We're not chopping off the main 4 hearing from the rest of it. 5 MR. MAYER: Well then with all due respect, 6 Ms. Kempton, in my humble opinion, you're incorrect. 7 Procedurally, legally incorrect. That's not where 8 I'm going particularly. 9 You have indicated you are not going to be 10 calling any other evidence despite the fact you just 11 earlier told me that some of the most important 12 evidence should be of the people who were involved 13 and who have been devastated. But we're not going to 14 hear any of that from your client? 15 MS. KEMPTON: I had made it clear, I thought, 16 in correspondence going back to I believe December, 17 if not earlier, and in the final written submission 18 to the Commission this isn't a choice one would wish 19 to make. It is a choice we felt -- it's no choice at 20 this point for Pimicikamak. They have no resources 21 to carry forward further than what we have to 22 participate any further than we're doing in this main 23 hearing. 24 MR. MAYER: So the reason you're calling no 25 other evidence is because you are short of funding? 2220 1 MS. KEMPTON: Short? We are in the -- yeah, 2 let's put it that way. There's no resources 3 available. 4 MR. MAYER: Is that also the reason that you 5 have chosen, and again, correct me if I'm wrong 6 because as Mr. Sargeant previously mentioned, the 7 relevant cross-examination of Hydro on the EIS has 8 not yet taken place, but am I correct, am I being 9 correctly informed when I am informed that you have 10 no intention of participating in the 11 cross-examination of Hydro's EIS witnesses? 12 MS. KEMPTON: Again, this shouldn't be news 13 but that's correct. We have no resources to 14 participate any further than what you are seeing now. 15 MR. MAYER: I just wanted to confirm that the 16 information we have from our staff is correct and I 17 wanted to put that on the record. Thank you very 18 much. 19 MS. KEMPTON: You're welcome. If I can just 20 add to that. This is not the first time this has 21 come up. Pimicikamak made a decision to, if you 22 will, front-end its involvement in this process 23 because we saw that if this is based on the 24 documents, the assessment documents, the Needs For 25 Alternatives To and justification document and the 2221 1 EIS documents from Hydro, that this process was in 2 serious danger of missing the point. We decided to 3 front-end our involvement and therefore the costs of 4 that involvement at the beginning to try to get it on 5 the rails. 6 I don't know if we were successful to some 7 degree or not. I think the tenor of the debate in 8 this proceeding changed. I think issues were raised 9 by many others that possibly might not have been 10 raised before but for our motion. But certainly the 11 motion was dismissed. That was a decision that 12 Pimicikamak was entitled to make. We felt it behooved 13 the honour of this process and the honour of our 14 client to bring the issues forward that we did in the 15 motion. Did it cost us? Absolutely in the sense of 16 front-ending the financial aspect of our involvement 17 in this proceeding. We have appealed repeatedly to 18 seek extra participant funding and we were denied 19 repeatedly. You can't get blood from a stone. 20 At this point, we have long since run out of 21 participant funding and I'm afraid that as much as -- 22 you know, in fact, I would say I'm sure Pimicikamak 23 would love to be able to bring forward more witness 24 and other evidence at this stage and if somebody is 25 willing to pay for that, great. But again, we're not 2222 1 in the position to do that at this point. 2 I don't want the issue to be skirted here that 3 we can present our own evidence of impacts and 4 catastrophe and whatnot and raise all kinds of 5 questions about what might or might not happen by 6 adding to that. But it's I think a terribly unfair 7 burden to place on any participant to require that 8 they bear the onus of doing what should have been and 9 is still Manitoba Hydro's job all along which is to 10 disclose and do its own research and own -- and its 11 own study and own compilation and to disclose all 12 information it has or doesn't have and the basis for 13 all assertions it has or doesn't have about system 14 impacts and what is or defined as minimal and how 15 they define it and all of that. That is Manitoba 16 Hydro's onus. It is not the public participants'. 17 THE CHAIRMAN: Ms. Kempton, I just have one 18 question. Have you read the documents filed as part 19 of the NFAAT and the EIS on these particular 20 proposals? 21 MS. KEMPTON: Either I have or the energy 22 experts retained have. And through a sharing of 23 information, you know, we've been able to do that, 24 yes. 25 THE CHAIRMAN: Are you saying that you 2223 1 basically know what's in those documents? 2 MS. KEMPTON: I can't quote you details at 3 this stage, no, but I have, throughout the entire 4 proceeding, been sufficiently apprised and have made 5 the statements on behalf of Pimicikamak I am making 6 today, yes. 7 THE CHAIRMAN: It strikes me that you raise a 8 number of issues, some of them probably very valid, 9 but you don't specify what questions you have in 10 regards to those issues. And now I hear that you are 11 not going to or no one representing PCN will be 12 involved in terms of asking questions about these 13 issues that you refer to. So I'll leave it at that. 14 MS. KEMPTON: Just to clarify, we did specify. 15 The interrogatory record is there. We asked many 16 questions. Hydro's answers or refusal to answer or 17 provide the information we asked for is a part of the 18 record. We provided an outline of that in our 19 written submission to the main hearing. 20 So I don't think it's accurate to say we 21 haven't drawn to the attention, the Commission's 22 attention to more specific points about where we 23 sought information and where such information was 24 refused. We have in fact done so. 25 THE CHAIRMAN: Other questions? Could you 2224 1 come up, please. 2 MR. MOORE: Mr. Chairman, I'm Billy Moore of 3 South Indian Lake. 4 You stated that you lack funds to carry on 5 further in the cross-examination or to participate 6 within the hearing. Where did you get the funds from 7 from the beginning and how did you run out and is 8 there any way you can get more funding? 9 MS. KEMPTON: The funding was awarded as part 10 of the public participant funding process where 11 ultimately it, I believe, comes from the proponent. 12 And this is a standard process in an environmental 13 assessment and review where the proponent itself 14 funds the participant's involvement. 15 Just as a matter of perspective, I believe 16 that one of the Public Utilities Board's transcripts 17 will reveal I think, and you can check on this, 18 don't take my word necessarily for this point, I 19 believe that Hydro spent $5 million for one hearing 20 or for one year of one hearing for legal counsel and 21 other of its experts to participate in this sort of a 22 hearing. 23 When we applied for funds, Mr. Moore, at the 24 beginning, we didn't project how big this job was 25 going to be. The massive amount of work required in 2225 1 the interrogatory process which was, in our opinion, 2 didn't go anywhere and other things that developed 3 but we still applied for 30 per cent more than we got 4 which was insufficient to begin with therefore. We 5 estimated what we felt was a bare necessity. We 6 didn't get that. We ran out of those funds. 7 We wrote to the Commission. The Commission 8 directed us to write to the Minister of Conservation 9 seeking additional funding to be able to participate 10 more. The Minister, by a letter, denied those funds 11 or any ability to open the door to seek further 12 funding to us. And that -- I believe that letter -- 13 I believe we received that letter early this year. I 14 don't have it with me. So we made the effort, all 15 the efforts we felt we could and we were denied. 16 MR. MOORE: Not to be arrogant about my 17 questioning and to bring out other vital components 18 about the entire hearing. Because of the Pimicikamak 19 being lack of funds to carry on further to these 20 hearings, I would recommend then perhaps they should 21 apply funding from the Hydro to -- from the Manitoba 22 Hydro to keep working or participating in this 23 hearing. 24 As an individual, in observing these things 25 and having been forced out of my community of South 2226 1 Indian Lake, I know that the Manitoba Hydro has got 2 money flying around to some groups that they are 3 funding for things like this. Premier Doer don't 4 have a problem to pick up the phone and ask Manitoba 5 Hydro for $280 million just to balance his budget. 6 What's wrong with Manitoba Hydro funding these 7 hearings for all the participants? I would recommend 8 that you apply the funding from them. 9 THE CHAIRMAN: There was no question there 10 that I heard anyways but thanks for your comments. 11 Other questions? 12 MR. DYSART: Good afternoon. My name is 13 Leslie Dysart from the community of South Indian 14 representing the Community Association of South 15 Indian Lake. 16 I'd like to direct my questions to William, 17 Mr. William Osborne. Back when the CRD took place 18 and Lake Winnipeg Regulation, myself, I was about 19 five, six years old when the CRD took place. But 20 listening to some of my oral history in South Indian 21 and some of the negotiations and discussion that took 22 place then and some of the research I've done, I'd 23 like to get a sense of how you view Manitoba Hydro 24 and, to some extent, the provincial and federal 25 governments in their dealings with Aboriginal 2227 1 peoples, more specifically with Pimicikamak. 2 In your opinion, Mr. Osborne, were promises 3 made to you and your people back in the CRD and Lake 4 Winnipeg Regulation projects of jobs, prosperity, a 5 better life? 6 MR. OSBORNE: Thank you. I think you and I 7 have something in common that we can address as a 8 whole. But you and I and the rest of the people in 9 our homeland have a lot in common to discuss amongst 10 ourselves, how governments, Crown corporations have 11 dealt with us as a people. How governments and Crown 12 corporations enacted the Indian Act rules and 13 regulations as they relate to the reserve concept and 14 to the Band members' concept on the subjugated 15 process. 16 We were promised over 1,000 jobs in early 17 1977, the signing of the treaty known as the Northern 18 Flood Agreement. We were promised that the 19 environment was going to be cleaned up. We were 20 promised that there would be education, training and 21 employment. We were promised of infrastructure. We 22 were promised of a community development plan on a 23 government-to-government basis. We were promised to 24 select lands. We were promised so many many things 25 under the Northern Flood Agreement. 2228 1 In my statement of concern about cleaning up 2 the mess, remedy the damage, I said most of the 3 damage is not being remedied. Manitoba Hydro is 4 doing some work but not enough. Debris has been 5 removed from 1 per cent of shorelines after 25 years 6 as per Article 5.3.3. Individuals have died after 7 hitting debris. People are afraid to use the 8 waterways. Manitoba Hydro is just beginning a 9 wetland restoration. 10 Manitoba Hydro has refused to come and see our 11 lakes and rivers and waters. Manitoba Hydro has 12 refused to see the bottom of our lakes that you and 13 I, Mr. Dysart, have witnessed as children. We see 14 the rocks -- we saw the rocks and the fish and the 15 ecosystems under waters. Today, we can't even see 16 our hand a couple of inches under water. 17 We've asked Manitoba Hydro to come and see the 18 mud that's piling up but have refused to come and 19 witness for themselves of the truth. And, yes, we 20 were promised but little has happened since 1977. I 21 hope I answered your question. 22 MR. DYSART: Yes, thank you. In your opinion, 23 has Manitoba Hydro failed in its obligations and 24 promises that they have made to the Pimicikamak 25 people? 2229 1 MR. OSBORNE: Yes, they have. And I am 2 witness to that for the last 25 years. And I am 3 witness to many many things within my homeland, 4 within my people, within the young people, within the 5 elders. Most of the elders have passed on without 6 seeing the Charter of Rights and benefits that were 7 promised to them in 1977. 8 Today, 50 per cent of our population is under 9 25. Today, those young people are going through the 10 same emotions, waiting and waiting for those Charter 11 of Rights and benefits. I hope that they don't pass 12 on like most of my elders have. 13 MR. DYSART: I have many further questions. 14 I'm sure we can spend a lot of time talking but I'll 15 leave it at that. And I thank you, William Osborne. 16 We can all learn something from you. 17 MR. OSBORNE: Thank you. 18 THE CHAIRMAN: Thank you. Proceed. 19 MS. WHELAN ENNS: Thank you. I have a couple 20 of questions. And my apologies, I was late so I did 21 not hear the full presentation. I have a couple of 22 questions that I would like to ask that are on 23 specifically environmental damage from the CRD and 24 connected structures. And I'd like to ask Vice-Chief 25 Osborne these questions. 2230 1 Do the transmission lines in respect to the 2 CRD also damage the forest and traditional lands? 3 MR. OSBORNE: Definitely. 4 MS. WHELAN-ENNS: Thank you. Is it possible 5 to fix the environmental damage from the Churchill 6 River Diversion? 7 MR. OSBORNE: Anything is possible when people 8 put their minds to do something about the damage. As 9 a matter of fact, little information that was shared 10 with me by my staff apparently Manitoba Hydro has 11 programs that can be applied for, programs that 12 apparently have been implemented in Lac Du Bonnet, 13 programs that show before and after. If they can do 14 that in Lac Du Bonnet, they can surely do what they 15 said they were going to do in early 1977 in our 16 homeland, whether it's transmission lines, whether 17 it's shoreline stabilization. They can do something 18 about it but they also can't if they don't want to. 19 That's what they have done so far. 20 MS. WHELAN ENNS: One last question. Could 21 the Wuskwatim projects then, the generation station 22 and the three sets of transmission lines add to the 23 damage that is there from the CRD? 24 MR. OSBORNE: I am told by my staff that the 25 Manitoba Hydro representatives sitting at our table, 2231 1 our table meaning Pimicikamak, the Province and 2 Manitoba Hydro, have grudgingly admitted that yes, 3 it's a good deal for Nelson House and Hydro in 4 regards to Wuskwatim in their own environment; 5 however, it is not a good deal for Pimicikamak, in 6 particular Jenpeg, because that's where the direct 7 adverse effects will eventually be seen. Maybe not 8 today but sometimes tomorrow if the Wuskwatim project 9 goes as planned and if the Commissioners do decide to 10 recommend that it goes. 11 MS. WHELAN ENNS: Thank you. 12 THE CHAIRMAN: Mr. McIvor. 13 MR. MCIVOR: Greg McIvor, Trapline 18. The 14 question, maybe the first one I'll ask of Mr. 15 Osborne. You indicated in your comments about the 16 boreal forest falling into the river. Some of the 17 other impacts that you also mentioned, are those part 18 of the adverse effects of the Northern Flood 19 Agreement? Like is that in the Northern Flood 20 Agreement and identified as adverse effects? 21 MR. OSBORNE: The ecosystems Manitoba Hydro is 22 destroying, as I said in my statement of concern is 23 the lake and the lake bed ecosystems are covered in 24 mud. Fluctuations or flooding destroyed the 25 shoreline ecosystems. The river ecosystems are 2232 1 totally reversed from nature. Water levels destroy 2 most water fowl habitat each year. Fish habitat is 3 trashed every year. 4 Like you and I can attest to this. If we 5 travel from Winnipeg on to the community of Cross 6 Lake via Perimeter Airlines, we see the devastation 7 from above. We see the lakes and rivers, how much 8 they are being dried up. 9 The Northern Flood Agreement promised, as per 10 Article 5.3.3, to clean up the environment. And 11 cleaning up the environment doesn't necessarily mean 12 that you clean up on the surface but it means that 13 you clean up a whole environment and you take a look 14 at the whole environment. You take into account 15 everything that comes with the environment, the fish, 16 the traplines, everything that comes with that 17 environment. 18 MR. MCIVOR: Maybe just another question. I 19 am not sure what reference in the Northern Flood 20 Agreement that pertains to Pimicikamak but I know 21 there is a statement or part of the agreement was to 22 eradicate unemployment. Was that in the agreement 23 with the NFA with Cross Lake? 24 MR. OSBORNE: The NFA promised in black and 25 white to eradicate mass poverty and unemployment. I 2233 1 think that spells it out that no one should argue 2 what that means. Article 18.5 specifically talks 3 about employment, training and education as per 4 policy. 5 MR. MCIVOR: Okay. Maybe just for Ms. 6 Kempton. There was a mention by the new waters 7 Minister, Water Stewardship Minister Steve Ashton on 8 March 12th in the Winnipeg Free Press. And he 9 defined compensation that would be part of the 10 expansion of the Red River Floodway. And he 11 identified that this new law is to compensate 12 landowners who were flooded by the operation of the 13 Winnipeg Floodway. And the reason I'm going to do 14 this is I just want to get a sense from PCN if the 15 same type of information is contained in Hydro's 16 definition of adverse effects that is contained in 17 the Northern Flood Agreement that pertains to PCN? 18 THE CHAIRMAN: I just want to forewarn you 19 that you did that the other day and this could be 20 repetitious, especially if you are going to make a 21 presentation on the issue. If you want to ask 22 questions on the issue, fine. 23 MR. MCIVOR: Mr. Chairman, I think the other 24 day, Mr. Adams indicated that there are five Northern 25 Flood principles, Northern Flood Agreement principles 2234 1 plus 13 supplemental agreements to the Northern Flood 2 Agreement and he also indicated that there is 3 variation from agreement to agreement on what the 4 definition of adverse effects is. So I am just 5 trying to get a sense from PCN on whether or not the 6 definition that the new Water Stewardship Minister 7 had indicated would be available to the floodway 8 folks that might be affected as a result of the 9 expansion. And it's not going to take long. 10 THE CHAIRMAN: Ask the question. 11 MR. MCIVOR: Okay. The Minister indicated 12 that all those affected including home-owners, farms, 13 businesses, non-profit organizations and local 14 authorities affected by artificial flooding will 15 receive financial assistance on top of the assistance 16 that's available under the federal/provincial 17 disaster assistance programs. Compensation claims 18 under the new law would still be made through the 19 disaster assistance appeal board which adjudicate all 20 claims made for federal and provincial disaster 21 assistance. The compensation will include all damage 22 to real or personal property or property destroyed or 23 made inoperable, less useful, less valuable, less 24 productive or hazardous to health, economic losses, 25 including wages, salary or business income would also 2235 1 be covered. In addition to that, Minister Ashton 2 added there will be no claims ceiling and no 3 deductible for claims under the new Act. 4 Could you maybe just enlighten me as to what 5 PCN's adverse effects, if that's something that is 6 comparable, equal? 7 MS. KEMPTON: A couple of things. Just to be 8 clear, the Pimicikamak's interpretation of the 9 Northern Flood Agreement is not about compensation. 10 That word gets thrown around, first of all, as if 11 it's a dirty word and it gets people thinking about 12 money and it doesn't come down to that. It is about 13 remediation first. Fix up what you've done, please, 14 to the maximum possible extent. And a lot of it, as 15 Mr. Osborne said to Ms. Whelan Enns, a lot can be 16 done to fix up damage. Some of it is permanent. We 17 do accept that. Everybody has to. But where there 18 is a will, a lot can be done. 19 Second, beyond remediation is mitigation. 20 Minimize ongoing effects to the maximum possible 21 extent. Only when those two avenues are not 22 possible, scientifically possible does one turn to 23 compensation. That is, the thing is wrecked. We've 24 ruined your lands. We've ruined your waters. We've 25 ruined your lives. We've done everything we can to 2236 1 fix them up. We've done everything we can to 2 minimize ongoing day-to-day impacts. That's not 3 what's happening. That's the vision. And beyond 4 those, what can't be fixed and what can't be 5 mitigated would be compensation. In that order. 6 That is Pimicikamak's vision. That is why it 7 says this isn't about money, it's about cleaning up 8 the mess. Healing a nation. Healing a people. 9 Healing the lands and healing the waters. 10 The definition of adverse effects in the 11 Northern Flood Agreement is not specifically defined. 12 It can't have been, and the Northern Flood Agreement 13 at the beginning acknowledges that, that all adverse 14 effects are not known, were not known at the time. 15 And as things would change and develop and impacts 16 would grow worse as they do with these kinds of 17 impacts over time, one cannot know what will happen 18 in the future. So there was no limit on them. There 19 was no definition that limited them. And in fact, 20 these are environmental and social impacts. 21 Environment is what it is. A people is what 22 it is as well. And because of that broad and liberal 23 interpretation that is part of the wording of the NFA 24 and by which it must be interpreted, the obligation 25 is on the three Crown parties, Manitoba Hydro, 2237 1 Manitoba and Canada to address this in a very 2 complete holistic way. There are no limits. 3 MR. MCIVOR: Okay. That's all I wanted to get 4 some information on. Thank you very much, Mr. 5 Chairman. 6 THE CHAIRMAN: Thank you. Other questions? 7 MS. BRUYERE: I am Caroline Bruyere. I'm an 8 elder of Sagkeeng First Nation. I am also a direct 9 descendant of Chief Peguis and also the treaty 10 signer. I belong to the Prince family. 11 I am hearing here all the time of our lands 12 being negotiated, our resources being used for 13 commodities. We are the stewards of this land and we 14 made treaties and those treaties have treaty areas. 15 I hear that some of the communities that are 16 going to be affected come and speak here but that may 17 be only two or three. And also I said this before 18 too, I am very aware that, I said this before, that 19 whatever has been going on up north has also affected 20 our Lake Winnipeg. Our Lake Winnipeg does not drain 21 fast enough to clean itself up so therefore our 22 beaches, our water, our fish are not the same as they 23 used to be when I was a kid when I could see at the 24 tip of our point and see the fish and try and catch 25 the biggest one. And no longer can I do that, the 2238 1 fish doesn't taste the same. 2 But being the descendant of a treaty signer, 3 like I said, there are treaty areas and those treaty 4 areas encompass quite a bit of communities. And 5 without our treaties, there would be no Crown land. 6 And it often makes me wonder how come is it then we 7 are the last ones to be informed of any initiative 8 that has been thought of. 9 I know that our treaties have not been 10 honoured. We have been stuck to reservations 11 although we have vast areas of treaty areas. 12 My question to you is, Ms. Kempton, what is 13 the legal standing of our treaties at the 14 international level at the U.N.? How do you 15 understand that what is their status at the U.N. 16 since constantly they are not being fulfilled and 17 also we were not a part of the development or the 18 negotiation and implement of the Indian Act that was 19 just thrust on us but our treaties are supposed to be 20 as long as the sun shines, the rivers flow and the 21 grass grows. 22 MS. KEMPTON: I am not sure I can answer all 23 of that question. I can certainly -- look, the world 24 is structured by super powers and colonial interests 25 including at the U.N. and it's gross and it's 2239 1 unfortunate and it's what we face, what you face more 2 than I face everyday. But let's take a look at 3 what's happening here. 4 If I can bring this back to relevance to this 5 Commission to say that it's quite likely that as a 6 result of the fact that consultations in regard to 7 this project haven't yet and have not at all happened 8 on a treaty-wide basis, that more divide and concur 9 tended to happen. In other words, going to each 10 individual First Nation, each individual community, 11 each individual people, continue the process of 12 breaking apart and breaking up, if in Section 35 13 consultations or other things, the governments were 14 to recognize and honour these treaties as more than 15 pieces of paper and consult on a treaty-wide basis 16 about treaty and inherent rights, not about things 17 that you pointed out have nothing to do with that 18 like imposed Band destructure imposed by the Indian 19 Act by the Federal Government. If they were to do 20 this respecting treaty rights, inherent rights, on a 21 treaty-wide basis and beyond across treaties then 22 maybe we wouldn't be where we are today. Maybe we 23 wouldn't be dealing with more of this divide and 24 concur. 25 MS. BRUYERE: That is my point why I mentioned 2240 1 the Indian Act because I have also heard that under 2 the Indian Act voting regulations that the referendum 3 will be taken and we are entitled to develop our own 4 laws which we have had for centuries. And I think 5 it's about time that we start allowing us to practise 6 our own cultural activities, our own laws governing 7 our ways of maintaining our Mother Earth. 8 So with that, I think I would ask other people 9 that are more knowledgeable about the treaties there, 10 I know that there are a bunch of lawyers in the room, 11 maybe they would best address the issue of my 12 concern. Maybe Mr. Mayer could enlighten us on the 13 value of our treaties. It seems to me I seem to lack 14 the understanding that my treaties are valuable. 15 Maybe he can enlighten me and tell me, oh yes, they 16 are. Thank you. 17 MR. OSBORNE: I may want to say something to 18 the lady in reference to her question as a whole. If 19 we take a look at some, if not all, of the Supreme 20 Court rulings in regards to consultation, it clearly 21 spells out that consultation is a two-way street. In 22 my opinion, what that means is that we must all be 23 consulted. Consulted meaning we must all be told if 24 and whenever our treaty and our Aboriginal rights are 25 going to be infringed upon either by an industry or 2241 1 by a government or by anybody, we must be made known. 2 Consultation is not selecting randomly a 3 couple of communities and telling them this is what's 4 happening, this is what's coming when only a few 5 people attend. Consultation is not randomly 6 selecting five or six elders and attending meetings 7 here and there. When it comes to treaty rights, as I 8 know, no Band, let alone the Chief and Council of the 9 Band, have any right to deal with treaty and/or 10 Aboriginal rights. 11 And as I know it, no Band on an individual 12 basis have the right to deal with treaty and 13 Aboriginal rights because treaties are collective 14 rights. Treaties are for each and every one of us 15 that is sitting here and we have the right to be 16 informed. We have the right to ask the questions. 17 We have the right to stand up for our own rights and 18 not be threatened or intimidated by the Chief and 19 Council of the Band when in fact, by virtue of a 20 legal opinion that we did through Myers & Weinberg 21 law firm say the Chief of the Band is merely a truant 22 officer. They have the authority to enact by-laws. 23 They have the authority to get into contracts. They 24 have the authority that are very limited. Nowhere in 25 that legal opinion did I read said they had the right 2242 1 to deal with treaty and Aboriginal rights let alone 2 sell them without your consent and against your will. 3 THE CHAIRMAN: No more questions? 4 MR. WAPASKOKIMAW: Good afternoon. My name is 5 Gordon Wapaskokimaw. I am from Cree territory, North 6 America. I am here under and by command of the woman 7 to address some very important issues that are being 8 talked about in this forum regarding jurisdiction to 9 our tribal lands, our water, our resources as the 10 North American Indian of this continent. 11 Now my question is as I'm working towards it, 12 I want to elaborate a little bit the basis of my 13 question so you'll understand exactly where I'm 14 coming from. I want to focus on one agreement that 15 has affected most Bands, namely five anyway, and what 16 the Constitution of Canada calls Northern Manitoba. 17 We know it as otherwise. 18 I wanted to ask if there was a review done on 19 the documentation of the Northern Flood Agreement and 20 the instruments of law that was used in there and the 21 intent of the Northern Flood Agreement because to my 22 understanding and what I understand of the treaty and 23 the stipulations of treaty under international law, 24 consent must be first had and obtained from an Indian 25 regarding his tribal lands, water and everything else 2243 1 that's included in this Continent of North America. 2 Where did Manitoba Hydro and what was the 3 intent of the Northern Flood Agreement? Was it to 4 ratify the 1930 Natural Resource Transfer Agreement. 5 And the reason why I question that is because when 6 treaties were signed in the Treaty 5 area with the 7 various Bands and your Majesty the Queen sent 8 commissioners to our land to represent and speak for 9 her, there was strict orders given to them that they 10 must have consent from the Indian in writing. And it 11 also stipulates in Treaty 5 and it provided however 12 Her Majesty reserves the right to deal with any 13 settlers within the bounds of any reserves reserved 14 for Indians for anything that they might need for 15 compensation with their consent first had and 16 obtained. 17 When the Federal Government and the Provincial 18 Government sat down to make the Natural Resource 19 Transfer Agreement, were there any Indians present 20 there to consent to that deal? And that is why I 21 came. And one of the reasons and one of the 22 questions, and I have another one before I close, 23 was there any with the consultation that was sent by 24 Manitoba Hydro when you're dealing with a treaty 25 Indian and the stipulations in a treaty, it can be a 2244 1 one-sided interpretation of treaty. 2 Both parties have to have the same 3 understanding of a treaty because you're dealing with 4 a nation. You're dealing with a signatory Indian 5 that knows the stipulations of an international 6 treaty. If they are not satisfied with the honesty 7 and expression and the explaining the conditions and 8 the consequences of an agreement made by a secondary 9 government in the Constitution of Canada using 10 foreign law, that Indian has every right to protect 11 his rights. 12 That is why I am asking you today and I'm 13 asking you too, ma'am, if I may, was there any 14 procedures done like in that forum when that NFA was 15 being looked at and some way it was ratified? 16 MR. OSBORNE: I can generally say there were a 17 number of people that agreed to the Northern Flood 18 Agreement in the Community of Cross Lake but I can't 19 specifically say how many of these people actually 20 agreed to that Northern Flood Agreement. 21 MR. WAPASKOKIMAW: Okay. And the other thing 22 is I wanted to know, the implementation of the 23 democratic process that was used to ratify an 24 agreement under a treaty process and the treaty 25 stipulations, it states anything that is offered to 2245 1 the treaty Indian is done by consensus. That means 2 the elective system. The democratic process does not 3 apply to an international agreement when it comes to 4 an Indian, a treaty Indian that is a signatory to a 5 treaty. He and only he commanded by the woman can 6 make a decision whether they accept or not and they 7 can speak for themselves and everyone has to agree. 8 If one agrees -- or doesn't agree, let's say if there 9 was 100 people here and they had a vote and 99 per 10 cent of them said yes, we will take the Wuskwatim 11 project, if a treaty Indian, under with the proper 12 credentials and following the stipulations of a 13 treaty, says no, then it's no. That's what I was 14 going to question. Was it done in that fashion? 15 MR. OSBORNE: You mean the Northern Flood 16 Agreement? 17 MR. WAPASKOKIMAW: That one and any other 18 agreement that's introduced by the Governments of 19 Canada. But mainly I guess we're talking about 20 Northern Flood Agreement and other ones that have 21 derived from the Northern Flood Agreement namely we 22 will call maybe an Agreement in Principle was in 23 place, maybe Summary of Understanding was in place, 24 all those, Treaty Land Entitlement, that kind of 25 stuff, was it done in that fashion? 2246 1 MS. KEMPTON: We can't speak to that. 2 Pimicikamak has not abrogated or lost any of its 3 inherent rights. I think the focus should be here on 4 who you are, where you were born, what your rights 5 are on being born as an indigenous people that 6 happens to have been born in Canada. And I think 7 that's the real issue here. 8 I can't speak to how that's gotten screwed up 9 by the imposition of attitudes, laws and systems from 10 others who have oppressed you and indigenous peoples 11 across North America and continue to do so. I don't 12 know what's happening and I can't legitimately speak 13 to what's happening in other communities and other 14 nations. 15 I can tell you that Pimicikamak's vision, view 16 is of inherent, its inherent Creator granted rights 17 and nothing ever ever has or ever will take those 18 away. That is its position today. It was its 19 position from the time beyond memory and it will be 20 its position long after this Commission and all of 21 these people in this room go away. 22 MR. WAPASKOKIMAW: I thank you for giving me 23 the opportunity to come and sit here what I've been 24 commanded to do. And also in the future when we hold 25 our meetings, every meeting we hold, our gathering is 2247 1 for the unborn. That's who we speak for. That's who 2 I'm speaking for when I'm speaking here. 3 So from this day forth, for the record, you 4 cannot go back to where you came from and say we were 5 never informed or notified about treaty stipulations 6 to be met. Thank you. 7 THE CHAIRMAN: Thank you. No further 8 questions? Sir, do you have a question? 9 MR. ADKINS: Yes, Mr. Chairman, members of the 10 Commission. My name is Bob Adkins. I'm legal 11 counsel. I act for Manitoba Hydro in many matters. 12 I have in fact appeared initially before this 13 Commission on the Pimicikamak motion that was brought 14 last fall. And I have been involved in the Article 9 15 processes. I am here to ask a few questions on 16 behalf of Manitoba Hydro of Ms. Kempton if that will 17 be acceptable. 18 THE CHAIRMAN: Proceed. 19 MR. ADKINS: Ms. Kempton, I want to start by 20 referring to the presentation that you made and I 21 want to ask you if you have any professional 22 qualifications other than that as a lawyer? 23 MS. KEMPTON: Sorry, what's the relevance of 24 your question? 25 MR. ADKINS: You've made -- 2248 1 MS. KEMPTON: How far back do you want me to 2 go? 3 MR. ADKINS: Well, you've made a presentation 4 to this Commission and to the people here in which 5 there are many opinions that have been expressed. 6 I'm wondering what professional qualifications, 7 expertise or experience that you have in relation to 8 those statements? 9 MS. KEMPTON: Sorry, that's not a relevant or 10 appropriate question. These are not my words, these 11 are words, I am acting on behalf of Pimicikamak, my 12 client. 13 MR. ADKINS: So in effect, the opinions that 14 you were expressing, they were not your opinions, 15 they are the opinions of your client? 16 MS. KEMPTON: Of course, as any legal counsel 17 acting for their client. 18 MR. ADKINS: I appreciate that, thank you. 19 Ms. Kempton, you were present at the beginning of the 20 hearings, if my recollection is correct, before this 21 Commission, not talking about the motion but when the 22 hearing started in this room; am I correct in that? 23 MS. KEMPTON: I was present for part of the 24 first day. 25 MR. ADKINS: Okay. That was the period of 2249 1 time in which systems operations were being 2 discussed. Do you recall that? 3 MS. KEMPTON: Yes, I do. 4 MR. ADKINS: My understanding is that systems 5 operations and the potential effects of systems 6 operations is key to Pimicikamak's concerns; am I 7 correct in that? 8 MS. KEMPTON: Systems operations and systems 9 impacts, that's correct. 10 MR. ADKINS: Did you stay and listen to the 11 evidence that was presented by Mr. Dave Cormie on 12 behalf of Manitoba Hydro and systems impacts? 13 MS. KEMPTON: I don't know the names of the 14 people who were presenting. I stayed for part of the 15 day as I said. Sorry, I don't know, recognize, you 16 know, who was there, who was not there. If I wasn't 17 here, I have been reviewing transcripts, reviewing 18 all the evidence and consulting with energy experts. 19 MR. ADKINS: There were opportunities 20 available at that time to ask questions of Manitoba 21 Hydro experts in connection with systems operations. 22 Did you avail yourself of those opportunities? 23 MS. KEMPTON: Sir, as I have stated 24 repeatedly, the fact that we're here is a miracle. 25 We have no resources. We had none for me to appear 2250 1 on that day. We have none for me to appear today. 2 Effectively, I won't go any further than that but to 3 say we have done beyond what is reasonable to 4 participate in this hearing. 5 If Manitoba Hydro, however, would like to 6 provide further participant funding, I'd be happy to 7 raise those questions now or later. I'm sure my 8 clients would, too. 9 MR. ADKINS: So the answer to the question I 10 asked you is no, you did not avail yourself of asking 11 any questions? 12 MS. KEMPTON: I take objection to your word 13 "avail". I did not have the opportunity to, no. 14 MR. ADKINS: You were here. You left the room 15 but you didn't take the opportunity -- 16 MS. KEMPTON: Sir, it's really not the 17 business of you or this Commission as to the other 18 business that brought me to Manitoba. 19 MR. ADKINS: Have you had the opportunity to 20 review the material after the fact that was presented 21 and the presentation that was made on systems 22 operations? 23 MS. KEMPTON: I have reviewed that material. 24 MR. ADKINS: You haven't referred to or made 25 any comment in your submission today with respect to 2251 1 that material? 2 MS. KEMPTON: I certainly did. Again, I am 3 acting on behalf of my client. The purpose here 4 today in part and large part because very limited or 5 non-existent resources was to make a summary 6 statement on Pimicikamak's position. We are not in 7 the position to do anything further. We rely upon 8 the evidence we've given to date. We rely upon the 9 transcripts and the evidence given by others in 10 coming to the position that we did today and making 11 the statements we did today. That's it. That's what 12 we're doing here. 13 MR. ADKINS: What I'm getting at is there was 14 no reference made by you to any of the material that 15 was presented by Mr. Cormie or indeed Manitoba Hydro 16 on system effects that identified issues and said 17 that that's incorrect or inaccurate or wrong; am I 18 correct in that? 19 MS. KEMPTON: We did make reference not to 20 specific pages or to specific quotes, we made 21 reference to the fact of all those pages and what 22 you've said or what Hydro has said is finally 23 acknowledged that there will be system impacts and 24 that my client, Pimicikamak, is most likely to be 25 affected by those but that you're brushing them off 2252 1 as imperceptible. Beyond that, our position is there 2 is nothing there to comment on. That's the point. 3 MR. ADKINS: You referenced the minutes or 4 records being kept of the Article 9 process and you 5 indicated that they were not necessarily concurred in 6 by Pimicikamak; am I correct in that? 7 MS. KEMPTON: That's correct. The notes were 8 not received, as I understand it, by counsel or by 9 Pimicikamak until they were submitted to the CEC. 10 The first time they have seen them and therefore they 11 weren't, my understanding is, concurred with or 12 approved as "official minutes" or anything like that 13 at all. 14 MR. ADKINS: Okay. Just so I'm clear on this 15 and I'd like to just check with you on some of the 16 issues here. You are not denying, are you, that 17 there has been a process in September of 2001 with 18 Manitoba Hydro and Pimicikamak representing the Cross 19 Lake First Nation in relation to the potential 20 effects of Wuskwatim? 21 MS. KEMPTON: I am not legal counsel for 22 Pimicikamak in that process. I am generally familiar 23 with it. I've been apprised of generally what's 24 happened in it and hasn't and I have received some 25 notes and other things. But I do not feel it's fair 2253 1 to my client to speak on the specifics of that 2 process including specifically what I might and might 3 not have started. I am not their legal counsel 4 specifically on Article 9 consultations. So that 5 would not be fair. 6 MS. KEMPTON: I just want to ensure that you 7 made the statement that Pimicikamak does not 8 necessarily accept what's in the minutes and I'm just 9 trying to ascertain exactly, to your knowledge, and 10 obviously you're the person here testifying, to your 11 knowledge, what is or is not accepted. So you are 12 saying you don't know or that you don't feel it's 13 fair to comment on whether or not that process has 14 been going on since September of 2001? 15 MS. KEMPTON: The only point -- I'm really not 16 sure why this is -- that so much detail is being put 17 to this. The only point I'm making is that as those 18 were not approved minutes, as I am informed by my 19 client they were not approved minutes, they were not 20 something that Pimicikamak had ever seen before, I 21 raised the points today and this is, sorry, not 22 testimony but a statement on behalf of my client, as 23 to the fact that these aren't approved minutes and 24 they are not something that my client would have or 25 does concur with. Beyond that, no, I am not in a 2254 1 position to speak to the issues. 2 If and when Manitoba Hydro sits down with my 3 client to try to work out in this very separate 4 process something called approved minutes, then 5 that's your business to do with my client and it's my 6 client's business to do with you. The point is this, 7 whatever you want to call them, are notes from George 8 Remple cannot be relied upon for the truth of their 9 content because they are not minutes. 10 MR. ADKINS: Ms. Kempton, I have a copy of the 11 minutes that were in fact submitted. They are dated 12 January 27, 2004. I take it that your client has had 13 the opportunity to read those minutes before today? 14 MS. KEMPTON: Again, Mr. Adkins, those are not 15 minutes, okay. Minutes are an official record of a 16 meeting by which parties concur, either vote on or 17 approve somehow, and they are not minutes. My client 18 I don't -- my client has had a chance to review them 19 through other legal counsel and that's all I am 20 prepared to say at this point. If you want to take 21 this up with my client separately -- the only point 22 that's relevant here is just what I've said. They 23 are not minutes, they were not approved by my client, 24 therefore, they cannot be treated as officially 25 approved or otherwise any kind of minutes for that 2255 1 meeting. They cannot be relied upon for the truth of 2 their contents. That's full stop. That's my point. 3 Anything else, deal with it in an Article 9 4 consultation, please. 5 MR. ADKINS: Fortunately you're here today and 6 this is before the Commission. And the question of 7 that document, if you don't want to refer to it as 8 minutes, but the notes of what at least Mr. Remple 9 believed transpired at that meeting occurred, you put 10 that in issue in terms of it not being accepted so I 11 want to follow this up. Has there been anything in 12 those notes that you have been advised of that is 13 inaccurate? 14 MS. KEMPTON: First of all, I or my client am 15 not putting this in issue, your client raised it. 16 You put it in issue. We did not. We are simply 17 responding to that to the extent that I'm going to 18 do. Again, the only point is that they were not 19 approved. This is not the forum today to sit here 20 and go over them in minute detail to either seek 21 approval of my client or not. That is for another 22 process. At the time they were presented and as I 23 sit here today before this Commission, they cannot be 24 relied upon for the truth of their contents because 25 they are not officially approved minutes. That's it. 2256 1 I'll repeat that as however many times you'd like me 2 to. 3 MR. ADKINS: Thank you. I appreciate you 4 repeating it. I am here. I've heard the evidence 5 that was given. I heard Vice-Chief Osborne indicate 6 that it's appropriate for a developer to have an open 7 and honest dialogue in terms of a future development. 8 And we're referencing a process that occurred, 9 admittedly apart from this particular process as in 10 fact the public involvement process also occurred 11 apart from this particular process, where there had 12 been exchanges and where there had been notes kept, 13 whether they are minutes or not, and exchanged or at 14 least provided. And I'm trying to determine whether 15 or not there are any issues of accuracy that you are 16 aware of. And if you are not, you can simply say no 17 or you can go through the speech that you've given 18 the last few times. I don't particularly care. 19 MS. KEMPTON: Beyond what I've said today is, 20 in my opinion, at this stage because I didn't come, 21 certainly my client didn't come prepared to answer 22 this kind of question. I don't consider it relevant. 23 The only thing I consider relevant is what I've 24 already said. 25 So beyond that, no, I am not prepared to 2257 1 answer it. And as far as I am concerned, that's 2 privileged until my client decides to disclose that 3 information to Hydro. 4 MR. ADKINS: Okay. Thank you. I do want to 5 ask a few more questions specifically on this 6 particular process. Are you denying or do you know 7 if your client denies or do you have any idea whether 8 or not the experts that you had retained that were 9 going to, at some point in time, do something in this 10 process, as Mr. McCullough and Mr. Goodman in fact 11 have been involved in the processes with Manitoba 12 Hydro and the Province of Manitoba under Article 9 of 13 the Northern Flood Agreement. Are you aware of that? 14 MS. KEMPTON: I am aware that the experts have 15 been involved. Again, because I am not legal counsel 16 on that, I can't speak to the specifics. 17 MR. ADKINS: Are you aware that they in effect 18 have attended meetings with representatives of 19 Manitoba Hydro and reviewed all sorts of computer 20 analyses and computer projections and runs to try to 21 analyze the potential system effects of Wuskwatim? 22 MS. KEMPTON: If I can leap ahead maybe 23 several steps here. I do know and in fact I will say 24 this because I know that this isn't privileged, it's 25 part of I guess a public record in another way. The 2258 1 energy experts acting on behalf of my client have 2 been asking and pushing on behalf of my client for a 3 long time to get full disclosure of more than again 4 sort of the surface, you know, this is the surface 5 and please just accept this. I believe that they 6 have referred to the information they have and don't 7 have in regard to how Hydro reaches its economic 8 conclusions as a black box. They have done so in 9 this proceeding as well. Nothing that has happened 10 or that is reflected in those minutes changes that 11 assessment by them. 12 They have reviewed a surface level, a surface 13 treatment. They have not been able to get at the 14 data, the methodology and all kinds of stuff behind 15 it and, therefore, they still are in a position of 16 not being able to test Hydro's assertions about 17 economics. I do know that and it's also stated in 18 this proceeding by those experts. Nothing, nothing 19 either that meeting or otherwise has changed in that 20 regard. 21 MR. ADKINS: My understanding is that nothing 22 has been stated by those experts in those proceedings 23 and there is no evidence on any of those points and I 24 take exception to your suggestion that there is. But 25 let me go on with my questions. 2259 1 I want to find out, my understanding is that 2 technical meetings occurred on a couple of occasions 3 but specifically, there was one on June 26, 2003. 4 Are you aware of that meeting having occurred? 5 MS. KEMPTON: Sorry, I didn't hear you. 6 MR. ADKINS: Are you aware of that meeting 7 amongst the technical experts, those retained by 8 Pimicikamak and those in fact that are employed by 9 Manitoba Hydro and plus consultants employed by 10 Manitoba Hydro, that there was a technical meeting in 11 June 26, 2003? Are you aware of that? 12 MS. KEMPTON: I am aware of that. 13 MR. ADKINS: And are you aware that the 14 consultant, Mr. Goodman, a consultant retained by 15 Pimicikamak, indicated that in fact in his view that 16 meeting on June 26, 2003 had been a good meeting? 17 MS. KEMPTON: No, I am not aware of that. And 18 again, I'd like to know where you are going with 19 this. I answered the issues raised by Manitoba Hydro 20 about the Article 9 process -- I felt wholly 21 inappropriate here -- as if to suggest somehow that 22 that obviates the need for the CEC to do its job. I 23 don't really know what your intent or Hydro's intent 24 in bringing that information forward was. I refuted 25 it to the extent, as I've said before, you cannot 2260 1 rely on what was submitted for the truth of its 2 contents. I fail to see the relevance of this here 3 again today. 4 If you want to go through a litany of dates 5 and who said what and all the rest of it, I am not in 6 the position to comment on that today.