816 1 MANITOBA CLEAN ENVIRONMENT COMMISSION 2 3 VERBATIM TRANSCRIPT 4 Volume 4 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 Monday, March 8, 2004 22 Radisson Hotel 23 288 Portage Avenue 24 Winnipeg, Manitoba 25 817 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 Ms. Matthews Lemieux 24 25 818 1 LIST OF PARTICIPANTS 2 3 Manitoba Conservation: 4 Larry Strachan 5 6 Manitoba Hydro/NCN: 7 Ed Wojczynski 8 Ken Adams 9 Carolyn Wray 10 Ron Mazur 11 Lloyd Kuczek 12 Cam Osler 13 Stuart Davies 14 David Hicks 15 George Rempel 16 David Cormie 17 18 Community Association of South Indian Lake: 19 Leslie Dysart 20 Merrell-Ann Phare 21 22 CAC/MSOS: 23 Byron Williams 24 Bill Harper 25 819 1 INDEX OF EXHIBITS 2 3 Number Page 4 CASIL 1000: Letter undated from 5 Nisichawayasihk Cree Nation, 6 Chief and Council, re NCN 7 Manitoba Hydro Agreement 8 in Principle vote May 3 to 9 May 10 with attachment 853 10 11 CASIL 1001: Cover sheet and page 14 12 of Environmental Challenges 13 and Opportunities of the Evolving 14 North American Electricity 15 Market produced by the Secretariat 16 Report to Council under Article 13 17 of the North American 18 Agreement on Environmental 19 Cooperation 885 20 21 CEC 1001: List of pre-hearing exhibits 22 filed up to but not including 23 March 1st 823 24 25 820 1 INDEX OF EXHIBITS 2 3 Number Page 4 5 CAC/MSOS-1000: Financial results for 2020 6 Wuskwatim I/S 922 7 CAC/MSOS-1001: Financial results for low 8 export price scenario 922 9 CAC/MSOS-1002: Financial results for high 10 export price scenario 922 11 CAC/MSOS-1003: NPV and IRR Illustrative 12 example 952 13 14 15 16 17 18 19 20 21 22 23 24 25 821 1 2 INDEX OF UNDERTAKINGS 3 UNDERTAKING NO. PAGE 4 5 NCN-20 UNDER ADVISEMENT: Advise if 6 revenue from Wuskwatim will come 7 directly to South Indian Lake since 8 it has a large population of NCN 9 membership 841 10 MH-21: Advise where Article 8 is found 11 in the filing 883 12 MH-22: Advise whether the Voluntary 13 Climate Change Report is already 14 within the exhibits filed 887 15 MH-23: Advise why LCG Consultants 16 forecast is higher than others 983 17 MH-24: Provide reference for 18 EIA analysis 989 19 MH-25: Produce table showing IRR for 20 small and big wind 1066 21 MH-26: Provide levelized cost 22 calculation 1067 23 24 25 822 1 MONDAY, MARCH 8, 2004 2 Upon commencing at 9:08 a.m. 3 4 THE CHAIRMAN: We're ready to go. Before we 5 do, I will invite our Elder to come and say the 6 opening prayer. 7 ELDER DYSART: Thank you. Good morning, 8 ladies and gentlemen. I welcome everybody back. I 9 had a safe trip back and it's a lovely day and I hope 10 we have a good day today. Let us pray. 11 12 (PRAYER) 13 14 ELDER DYSART: Thank you. 15 THE CHAIRMAN: I hope everybody has had a good 16 weekend, a lot of rest, sniffed some fresh air 17 because you're now locked in here for the next three 18 days. 19 As we begin, I ask Rory to present some of the 20 exhibits. 21 MR. GREWAR: Mr. Chairman, just one exhibit 22 I'd like to tender for the Commission to accept filed 23 by the CEC would be the list of pre-hearing exhibits. 24 These are exhibits that were filed up to but not 25 including March 1st, be introduced as Exhibit 823 1 CEC-1001. 2 3 (EXHIBIT CEC 1001: List of pre-hearing 4 exhibits filed up to but not including 5 March 1ST) 6 7 THE CHAIRMAN: Then I go to Manitoba Hydro and 8 NCN for documents that you had committed to present 9 whether you have any undertakings. Mr. Mazur? 10 MR. MAZUR: Good morning, Mr. Chair. I had a 11 couple undertakings, one related to the guyed lattice 12 steel towers that I can present verbally if you wish. 13 It references on page 801, 802, Volume 3 of last 14 Wednesday's questioning. And if I may, I'll just 15 read a response that I have here. 16 The lattice guyed design has been our choice 17 for 230 kV transmission lines built in Northern 18 Manitoba for a number of years. This design has been 19 used for the following transmission line projects: 20 Herblet Lake - Cliff Lake 230 kV line - 143 21 kilometres, constructed in 1996. Ross Lake Cliff 22 Lake 115 kV transmission line - 3 kilometres, 23 constructed in '94. The Limestone - Henday 5 times 24 230 kV transmission lines, 5 times 10 kilometres, 25 constructed in '92. 824 1 The guyed tubular design was only used for two 2 138 kV line projects. The Radisson - Churchill line 3 built in 1987 and the North Central Project 4 transmission lines built between '97 and '99. 5 It's worth noting that the 230 and 138 6 transmission lines have very different design 7 paramaters. The lower voltage that is 138 versus 230 8 thus smaller phase separation and lighter design. 9 The smaller conductor, typically 266 to 477 MCM for 10 138 versus the larger 954 MCM circular mills for 230 11 design. 12 It is our experience that a guyed lattice 13 tower provides the most economic solution for a 230 14 kV construction in Northern Manitoba. It provides a 15 number of benefits. It's a flexible design allowing 16 adding tower shaft extensions, thus long spans and 17 higher conductor suspension height which is important 18 in hilly terrain. Its ease of transportation. Tower 19 members consists of steel angles which are bundled 20 for shipping. And ease of storage due to bundling of 21 parts. 22 The second undertaking was the issue of 23 permafrost. Again, page 804, 805 of the Volume 3. 24 One of the goals of the transmission line routing 25 process is to select the transmission line route 825 1 which would minimize the installation cost. The 2 route was chosen to avoid wet, swampy areas where 3 permafrost could be encountered as much as possible. 4 Furthermore, during spotting of the actual tower 5 locations, those areas will be avoided and tower 6 locations adjusted as much as possible. 7 However, some towers will have to be located 8 in permafrost. Based on the aerial photography 9 interpretation of the Thompson Birchtree - Wuskwatim 10 transmission line segment, we estimate about 9 per 11 cent of the line route is in permafrost. 12 Manitoba Hydro is a tower foundation design 13 which exists for this application since we have a 14 number of existing transmission lines in permafrost 15 areas. Thank you. 16 THE CHAIRMAN: Thank you. That having been 17 done, we are ready to proceed this morning. 18 MR. KUCZEK: I have an undertaking as well. 19 THE CHAIRMAN: Go ahead, Mr. Kuczek. 20 MR. KUCZEK: The undertaking that I had 21 related to the Market Potential Study and 22 specifically the industrial sector. And the question 23 was if the -- the assumption used was that we 24 excluded technologies with the prospect of 25 commercialization more than five years away. And 826 1 specifically the question was if we could find out 2 specifically what those technologies were and why the 3 decision was made to eliminate them or not to proceed 4 with them. 5 We mentioned that this was outside of the 6 scope of the study with the consultants. So there 7 was no list specifically that was reviewed between 8 our engineering technical staff and the consultant. 9 However, there are lists out there that are published 10 by organizations such as the U.S. Department of 11 Energy, Office of Industrial Technologies and also 12 another organization, American Council for Energy 13 Efficient Economy. 14 To give you a couple of examples of what these 15 technologies are, one would be electric motor 16 efficiency improvements. And it's believed that 17 there is efficiency improvements that could be 18 accomplished through technology changes, use of 19 materials specifically in this case, possibly using 20 copper as opposed to aluminum in the rotors and using 21 a different type of steel in the stators. 22 Another example would be adjustable speed 23 drives. They are fairly efficient right now and they 24 are looking at possibly improving those efficiencies 25 but they are marginal. 827 1 And in terms of why they were excluded, we 2 believe there is significant risk assuming that many 3 of these technologies would be commercialized within 4 the study period. The study period is 15 years so 5 when we're talking about beyond five years, there's 6 only ten years. There is also significant 7 uncertainty moving from the R & D phase to 8 commercialization, first in terms of whether these 9 technologies will make it. The number of 10 technologies that will make it, we expect that there 11 will be very few if they do make it. 12 And there's other issues that need to be 13 resolved in regards to production issues, timing of 14 the technology is becoming commercialized. And then 15 last would be the costing and whether they'd be 16 economic or not. 17 So because of the risk, we viewed that if you 18 did include any of these, you'd have to use a 19 different assessment process because of the higher 20 risk. And it would involve likely higher discount 21 rates, considerably higher discount rates. And the 22 conclusion was that there would be relatively -- the 23 impact would be relatively insignificant. So it 24 wasn't included in the study. 25 THE CHAIRMAN: Any more undertakings to table 828 1 at this time? All right then. We are ready to 2 proceed. 3 I understand that the representatives from 4 CASIL, Community Association of South Indian Lake, 5 are present and will proceed with the questioning in 6 regards to the needs and alternatives at this time. 7 Thank you. 8 Please identify yourselves. And, Mr. Grewar, 9 you will at this time proceed to -- 10 MR. GREWAR: I don't believe we would swear 11 them in at this point, Mr. Chairman. They are just 12 simply asking questions. 13 THE CHAIRMAN: Okay. 14 MR. DYSART: Good morning, Mr. Chairman, and 15 the rest of the Commission. First of all, I'd like 16 to thank you for allowing me the opportunity to 17 question Manitoba Hydro and NCN on their proposed 18 Wuskwatim project. 19 THE CHAIRMAN: Please identify yourself to 20 begin. 21 MR. DYSART: Okay. My name is Leslie Dysart. 22 I am representing the Community Association of South 23 Indian Lake. And for the record, I am not an 24 economic terrorist nor is the group I'm representing. 25 If the Chair will allow, there will be two 829 1 parts to my questioning. I will proceed with the 2 first part and my colleague will proceed with the 3 second part. 4 Good morning, Panel. I'm going to jump right 5 into questioning regarding the Nisichawayasihk Cree 6 Nation vote that took place. I guess I'll be 7 directing my questions to Councillor Thomas. 8 THE CHAIRMAN: Sorry? 9 MS. MATTHEWS LEMIEUX: Valerie Matthews 10 Lemieux, counsel for Nisichawayasihk Cree Nation. I 11 would object to the nature of that question. It's 12 beyond the terms of reference for this hearing in 13 terms of any issues related to the vote in Nelson 14 House. 15 THE CHAIRMAN: Well, we did discuss issues 16 regarding the votes of the Nelson House the other 17 day. And I haven't heard any questions yet so I will 18 not disallow anything at this time. So please 19 proceed. Order please. 20 MR. DYSART: Thank you, Chair. Okay. I'll 21 just have some questions of background. My first 22 question is where are all NCN members located like 23 throughout Manitoba and abroad I guess? 24 MR. THOMAS: The answer to the question is 25 that we have NCN members who reside in Nelson House, 830 1 at Nelson House proper. We also have NCN members who 2 reside in South Indian Lake. We have NCN members 3 living in the City of Thompson. We also have NCN 4 members living in the City of Winnipeg and also in 5 the City of Brandon. Elsewhere, we have others 6 living in different parts of the country or the 7 world. Those I don't know exactly where they would 8 live. 9 MR. DYSART: Approximately how many members 10 are on the NCN membership list? 11 MR. THOMAS: On the NCN membership list, we 12 have close to 5,000 people who are registered Band 13 members. 14 MR. DYSART: So exactly how much is 51 per 15 cent of a majority of eligible voters? Do you have 16 that information? 17 MR. THOMAS: I believe the figure is around 18 close to 2,000. Although the exact number I don't 19 have on hand right now, but approximately that 20 number. 21 MR. DYSART: Okay. Now in your presentation, 22 I think it was the first day if I'm correct on that, 23 you mentioned you followed a procedure called a 24 Double Majority Process in regards to the vote; is 25 that correct? 831 1 MR. THOMAS: That's correct. When we have 2 referendums, we follow the procedures that have been 3 established by the Indian Act provisions. And when 4 the referendums are done, there is a requirement that 5 there be a double majority. In other words, of all 6 the eligible members that are eligible to vote, 51 7 per cent of those must participate in the election or 8 in the referendum. And of those that vote, 51 per 9 cent must say yes or no to the particular question at 10 hand. 11 MR. DYSART: Okay. Again, I think it was 12 Monday as part of your presentation, you said you're 13 not sure or you may follow that process for the next 14 vote in regards to the PDA. 15 MR. THOMAS: Because we're not dealing with an 16 issue that deals with the land, I believe it is a 17 major issue that determines whether or not referendum 18 rules under the Indian Act kick into place. We're 19 not -- I don't believe that we are actually required 20 to make use of those referendum rules; however, we 21 have used them because they are the mechanism that 22 most of our people are familiar with when it comes to 23 making major decisions that impact upon them that 24 require the use of referendums. 25 So while we may not be required to use it for 832 1 this particular project, we have used it and I 2 believe that we are going to be using it for the next 3 referendum. 4 MR. DYSART: Has NCN ever followed any other 5 process? 6 MR. THOMAS: Other than general elections, no, 7 I am not familiar with any other uses of referendums. 8 MR. DYSART: What factors would make you 9 decide whether to use it or not, the double majority 10 process? 11 MR. THOMAS: I do believe that we have already 12 established the way that we should be conducting the 13 referendum by at least in the last referendum that we 14 did with respect to the Agreement in Principle, we 15 utilized a particular approach under the Indian Act 16 as required. And it is my expectation that we will 17 be following the same referendum rules. 18 MR. DYSART: So we could confirm that you will 19 be using the double majority process as described 20 under the Indian Act? 21 MR. THOMAS: Yes. 22 MR. DYSART: Thank you. Again, I think it was 23 on day one of the proceedings, you referred to the 24 vote taking place in September of 2001 in regards to 25 the AIP. Is it not that it took place in May of 2001 833 1 just to clarify? 2 MR. THOMAS: The official ratification itself 3 occurred on September 25, 2001 and that was the date 4 that I referred to as the actual date where the 5 results of the referendum were signed by everyone. 6 So while we conducted the referendum earlier, the 7 official signing ratification occurred at that time. 8 So that's why I referred to that particular date. 9 MR. DYSART: Okay. So in your reference to 10 September, it would have been the actual signing, not 11 the actual vote? 12 MR. THOMAS: Yes. 13 MR. DYSART: The vote did take place in May? 14 MR. THOMAS: I do remember that, if it serves 15 me correctly, I think it was in May, yes. 16 MR. DYSART: Okay. Why was there two dates in 17 May when the vote took place? I refer to an open 18 letter produced by the Nisichawayasihk Cree Nation to 19 its membership. And in there, it identifies two 20 dates when the vote took place, May 3rd and May 10th 21 of 2001. 22 MS. MATTHEWS LEMIEUX: Perhaps Mr. Thomas 23 might want to see the letter. If anything turns on 24 it, we can clarify there was an advance poll and 25 there was the ratification vote. The advance poll 834 1 was May 3rd. May 10th was the ratification vote. 2 MR. GREWAR: I do have copies of this 3 correspondence. Does the Commission and Mr. Thomas 4 wish to see it? 5 MR. THOMAS: If I may. 6 THE CHAIRMAN: Proceed, Mr. Dysart. 7 MR. DYSART: Thank you. Just to clarify then, 8 May 3rd would have been an advance poll? 9 MR. THOMAS: Yes. 10 MR. DYSART: And May 10th would have been the 11 actual voting day? 12 MR. THOMAS: Yes. 13 MR. DYSART: Did any outside government or 14 agency scrutinize the voting process? 15 MR. THOMAS: No. 16 MR. DYSART: Under the Indian Act rules, is 17 there a requirement for scrutinization? 18 MR. THOMAS: Yes. 19 MR. DYSART: Why was it not followed? 20 MR. THOMAS: There were different people 21 involved and there were various people chosen to be 22 scrutinizing when the polls took place. So I'm not 23 sure where you'll be coming from that there were no 24 scrutineers because there were people that observed 25 to make sure that things were being done or 835 1 procedures were being followed properly. 2 MR. DYSART: These people would be retained by 3 NCN? 4 MR. THOMAS: These people would be identified 5 by the people that are concerned about such matters, 6 generally. To make sure that they have people there 7 to observe that everything is being done 8 legitimately. 9 MR. DYSART: So just to confirm, there would 10 have been no outside group, independent group 11 scrutinizing the voting process? 12 MR. THOMAS: No. 13 MR. DYSART: I'd like to go over some numbers 14 for you, if you can just confirm or not. These 15 questions will be just to clarify for the benefit of 16 the members or the public that are not -- who don't 17 have a copy. 18 In regards to the letter and the data attached 19 to it. The total eligible voters is 1,989; is that 20 correct? 21 MS. MATTHEWS LEMIEUX: That's not in the 22 one-page letter. 23 MR. DYSART: It was the attachment to the 24 letter. I'm sorry. 25 MS. MATTHEWS LEMIEUX: Could we also seek 836 1 clarification. Are these documents being marked? 2 Are they being tendered as exhibits? 3 THE CHAIRMAN: Mr. Grewar, I believe these 4 documents will be tendered? 5 MR. GREWAR: Yes, Mr. Chairman. I would think 6 they would be tendered as exhibits. 7 MR. DYSART: I guess I'll repeat my initial 8 question. The total of eligible voters is 1,989. 9 MR. THOMAS: The tally is done by the 10 membership clerk and also by the person who is 11 conducting the vote, the electoral officer. The 12 numbers that they have are the numbers that we go by. 13 And generally, it's I believe around 1,989 as you 14 referenced. And the total turn-out for this 15 particular vote was about 1,427 as indicated in the 16 documentation. 17 MR. DYSART: Okay. Now, with the data that we 18 have, again supplied by Nisichawayasihk Cree Nation, 19 the lowest turn-out was actually on reserve in NCN of 20 65 per cent approximately. 21 MS. MATTHEWS LEMIEUX: Perhaps it would help 22 if -- 23 THE CHAIRMAN: Would you identify yourself. 24 MS. MATTHEWS LEMIEUX: Yes, Valerie Matthews 25 Lemieux for the record. Perhaps Mr. Dysart could 837 1 actually refer Mr. Thompson to the particular part 2 that he's asking the question about. 3 MR. THOMAS: Yes. 4 MR. DYSART: You're confirming, okay. And the 5 total yes vote overall was 66 per cent as you 6 previously stated approximately? Or not 7 approximately, 935 members? 8 MR. THOMAS: Could you repeat the question, 9 please? 10 MR. DYSART: In regards to the overall NCN 11 membership, the total yes vote was 935 members which 12 equates to 66 per cent? 13 MR. THOMAS: Our calculations, are you 14 referring to this particular document here? 15 MR. DYSART: They are both -- they both -- 16 MR. THOMAS: Yes. 17 MR. DYSART: So in reference to the 82 per 18 cent you've stated and also as page 1 also states, 19 it's only referencing on-reserve eligible voters or 20 on-reserve voters. 21 MR. THOMAS: Yes. When I make those comments, 22 I'm talking about all the NCN people who are eligible 23 to vote that reside in Nelson House who participate 24 in the referendum. And based on the numbers that did 25 participate, 82 per cent of those that did vote 838 1 supported what we were doing, yes. 2 MR. DYSART: But it does not reflect overall 3 membership? 4 MR. THOMAS: That is not overall. The number 5 66 per cent that you have identified is the overall 6 total. 7 MR. DYSART: Now, specific to South Indian 8 Lake, the no vote was 267 which equates to 80 per 9 cent. Again, I'm referring to voter turn-out on the 10 bottom part of the data sheet. Sorry, excuse me, 11 it's the middle spreadsheet there, circled figure. 12 MR. THOMAS: Yes. 13 MR. DYSART: Now, would you agree, South 14 Indian Lake membership on the Nisichawayasihk 15 membership list is approximately 22 to 25 per cent of 16 your total membership? 17 MR. THOMAS: The numbers that I'm generally 18 told are between 20 and 25 per cent. I'm not sure 19 whether it goes as high as 25 per cent but certainly 20 20, 22 even has been referenced as the appropriate 21 figure. 22 MR. DYSART: So we can agree that it's 23 approximately in that area? 24 MR. THOMAS: I would agree that it's between 25 20 and 22. 839 1 MR. DYSART: Okay. So a large portion, a 2 large percentage of your membership voted no against 3 the Agreement in Principle? 4 MR. THOMAS: I wouldn't go -- I wouldn't 5 characterize it that way. I would say that of the 6 people that participated in the referendum, for those 7 who are NCN members residing in South Indian Lake, 8 the overwhelming majority did say no to the question 9 that was being posed to them in the referendum. But 10 that is not reflective of the total NCN population. 11 MR. DYSART: My next question is in regards to 12 the benefits that have been as part of your 13 documentation in your public information process. 14 Since we established South Indian is a large 15 portion of your overall membership, will the benefits 16 of sharing, for example, revenues be shared with 17 off-reserve members? 18 MR. THOMAS: Could you repeat that question, 19 please? 20 MR. DYSART: In regards to benefits, more 21 specifically revenue, will revenue sharing or will 22 revenue be shared with off-reserve members? 23 MS. MATTHEWS LEMIEUX: If I can just clarify. 24 MR. THOMAS: I'm not quite sure how to answer 25 that question. 840 1 MS. MATTHEWS LEMIEUX: Excuse me. 2 THE CHAIRMAN: I will let Mr. Thomas answer 3 please. 4 MS. MATTHEWS LEMIEUX: I just wanted to get 5 clarification of the question. Revenues from what? 6 THE CHAIRMAN: Mr. Dysart. 7 MR. DYSART: From the profits of Wuskwatim, 8 the project. 9 MR. THOMAS: As it stands right now, all the 10 negotiations that have taken place have been done in 11 a way to ensure that the benefits come to NCN, the 12 NCN membership. 13 MR. DYSART: Will they be shared with 14 off-reserve numbers? 15 MR. THOMAS: The NCN membership consists of 16 both on-reserve and off-reserve members. 17 MR. DYSART: So that's a yes? For example, 18 will revenue come directly to South Indian Lake since 19 it has a large population of NCN membership? 20 MR. THOMAS: I need a little time to think 21 about the question there, Commission. 22 THE CHAIRMAN: You can take it under 23 advisement if you wish, Mr. Thomas. 24 MR. THOMAS: Can I take that question under 25 advisement? 841 1 MR. DYSART: Okay. 2 3 (UNDERTAKING NCN-20 UNDER ADVISEMENT: Advise if 4 revenue from Wuskwatim will come directly to South 5 Indian Lake since it has a large population of NCN 6 membership) 7 8 MR. DYSART: Assuming your answer to my 9 previous question would be yes, will membership, more 10 specifically South Indian, know what those benefits 11 will be before the Power Development Agreement vote? 12 MR. THOMAS: With regard to the question that 13 has been asked, there is a situation that is 14 unfolding at this point in time. The community of 15 South Indian Lake is on track to become its own 16 separate First Nation. We respect that and honour it 17 as it unfolds. And we are in the process of 18 discussing the situation with respect to how assets 19 will be divvied up by the communities when the time 20 comes for South Indian Lake to achieve First Nation 21 status. 22 So in terms of any concrete discussions or 23 commitments with regard to the benefits that would 24 come about from Wuskwatim, those issues are still 25 under discussion. No commitment has been made one 842 1 way or the other. 2 MR. DYSART: I am familiar with the other 3 process you referred to. Specifically, who are you 4 discussing the sharing of profits in regards to 5 Wuskwatim? I know there's other issues there. 6 MR. THOMAS: Repeat the question, please? 7 MR. DYSART: Who are you in negotiations, if 8 there is a negotiation, in respect to Wuskwatim 9 revenue sharing? Who are you negotiating with? 10 MR. THOMAS: Currently, the only people that 11 we're negotiating with are the Crown Corporation of 12 Manitoba Hydro. 13 MR. DYSART: In regards to the future PDA 14 vote, when will this vote take place? 15 MR. THOMAS: As I've indicated earlier, we 16 have not identified a specific date. It is expected 17 that perhaps if all the -- if everything lines up in 18 the way that we would like, probably towards the end 19 of August, beginning of September, around that time 20 frame. 21 MR. DYSART: How will you decide when? 22 MR. THOMAS: It will probably be determined by 23 how well the rest of the negotiations are occurring. 24 If we feel that we have finalized all the details 25 with respect to the PDA that we are working on, once 843 1 that's complete, then we will need time to take the 2 information to the community and then a date will be 3 set for the actual vote itself. 4 MR. DYSART: Okay. What components do you 5 still need in place prior to a vote? Earlier you had 6 referenced the compensation agreement. 7 MR. THOMAS: We've got a number of areas that 8 have been referenced in the documentation that has 9 been provided to the Commission and everyone else who 10 is a participant here. We have a number of 11 agreements that have to be finalized, financing 12 agreements, adverse effects agreements and other 13 agreements that are part of the overall structure of 14 the PDA itself. So all those areas will have to be 15 covered. 16 MR. DYSART: Will these agreements, once they 17 are I guess finalized or in draft, be shared with all 18 membership prior to a vote? 19 MR. THOMAS: As we've indicated previously, 20 the process that we have undertaken is one that is 21 community-driven and it is one that is open and 22 transparent. And we have provided all the necessary 23 information to all our members. And it is my 24 expectation that all the information that will be in 25 the final PDA will be given to all our members in 844 1 order for them to be informed about all issues 2 sufficient for them to make an informed vote on the 3 issue. 4 MR. DYSART: The next questions are with 5 reference to Article 8 of the NCN NFA Comprehensive 6 Implementation Agreement. I understand you probably 7 don't have it in front of you. 8 MS. MATTHEWS LEMIEUX: We'll get a copy for 9 you. 10 MR. DYSART: If the Chair allows, I can quote 11 directly from the article I am referring to. 12 THE CHAIRMAN: Yes. I understand that counsel 13 is bringing a copy of the reference. But, yes, read 14 it for our benefit. 15 MR. DYSART: Okay. Article 8, specifically 16 8.4 deals with future development compensation. 17 8.4.1 states, 18 "In selecting an option for future 19 development, the impacts upon Nelson 20 House and the cost and methods for 21 compensating Nelson House and members 22 for adverse effects are relevant. 23 Consideration is to be addressed as 24 early in the process as feasible." 25 Now earlier this week, you said you hadn't 845 1 even reached or even started a compensation 2 agreement; is that correct? 3 MR. THOMAS: We've had some very very 4 preliminary discussions on the issue. In other 5 words, we need to focus our minds on it. But in 6 terms of any specifics agreed to, we hadn't come to 7 that point yet. 8 MR. DYSART: According to the Manitoba Hydro 9 schedule and yourselves as proponents, you were ready 10 to start constructing in January with the earlier 11 schedule. Why have you waited so long before you 12 started discussion for something that's referenced 13 directly in the Implementation Agreement? 14 MR. THOMAS: I guess I would have to reference 15 the article that you've referenced, Article 8.4.1. 16 If you go to the ending of that particular article, 17 it says that compensation are relevant considerations 18 to be addressed as early in the process as feasible. 19 We've undertaken a process that is quite 20 extensive. There's quite a significant number of 21 issues and areas that we have to cover as a 22 community. We engage in a consultation process that 23 is community-driven. And in taking these issues 24 into -- we've taken these issues into consideration 25 but we haven't actually found enough time in our 846 1 really crazy hectic schedules to be able to fit 2 everything in as nicely and neatly as may be expected 3 in these nice little packages that we make reference 4 as part of our process. 5 But we do have an agreement between each other 6 that we are going to be discussing these issues and 7 we have -- we're trying to start that process. But 8 between the parties, we know that we have to deal 9 with those issues and we are agreeing to deal with 10 those issues. It's just a matter of exactly when 11 we'll be able to do all that, that remains to be 12 seen. 13 MR. DYSART: Why would yourselves as 14 co-proponents and Manitoba Hydro as the other 15 co-proponent be seeking approval of the proposed 16 project prior to ensuring the rights of your members 17 are protected? 18 MR. THOMAS: We are not seeking a final 19 approval for this particular project. This process 20 that we're going through right now is part of the 21 overall process that we have to go through in order 22 for us to be able to do a project of this sort. The 23 final decision will come from our people when the 24 referendum occurs and also when the Manitoba Hydro, 25 through its Executive and its Board structures, makes 847 1 the decision that they are going to proceed. 2 MR. DYSART: But through this process, 3 yourselves and the co-proponents are seeking approval 4 for this project; is that not correct? 5 MR. THOMAS: We are going through a process 6 based on my understanding of this process and we are 7 going through a regulatory process that requires us 8 to assess the environmental impacts that this project 9 will have. We produced an Environmental Impact 10 Statement that has been given over to the Commission 11 to review and look at. And then we go through a 12 series of presentations in different areas. We also 13 are questioned on a number of different areas that 14 may be areas of concern. And then a final 15 recommendation will emanate from the Commission to 16 the Minister. 17 So it is not a final decision to approve the 18 project per se. It is a part of the total overall 19 process that has to be undertaken. 20 MR. DYSART: As I understand the process, 21 Councillor Thomas, through this process from the 22 Commission, you were seeking recommendations to 23 proceed with the project, is that not correct, prior 24 to addressing your membership and any adverse 25 effects? 848 1 MR. THOMAS: For the part that the regulatory 2 bodies have to play in this whole, for the lack of a 3 better term, scenario, yes, we are expecting to get a 4 decision from the Commission as to whether or not 5 they are going to be willing to make a recommendation 6 to the Minister one way or the other. 7 And as co-proponents, yes, our expectation in 8 general is that we want to see if we can get a 9 positive recommendation. 10 MR. DYSART: So you're seeking these 11 recommendations prior to fully understanding effects 12 to your members and the compensation that is required 13 under Article 8? 14 MR. THOMAS: Could you repeat the question, 15 please? 16 MR. DYSART: You are seeking recommendations 17 to the Minister prior to fully understanding the 18 adverse effects and addressing the compensation issue 19 of that under Article 8 of your Implementation 20 Agreement. You're seeking recommendations to proceed 21 with the project prior to addressing these concerns? 22 MR. THOMAS: The Environmental Impact 23 Statement that has been produced via the assessment 24 that has been done I do believe contains all the 25 information that you're talking about. 849 1 MR. DYSART: But not compensation for adverse 2 effects? 3 MR. THOMAS: I believe I answered that 4 question already. 5 MR. DYSART: Okay. Referencing Article 8 6 again, specifically 8.43 states, 7 "It is in the best interest of Nelson 8 House and Hydro to fully assess and 9 finalize compensation issues prior to 10 formal commencement of any federal or 11 provincial environmental review and 12 licensing process." 13 Is that what the article states? 14 MR. THOMAS: Yes. 15 MR. DYSART: Why have you deviated from the 16 agreement? 17 MR. THOMAS: We have not deviated from what is 18 contained in Article 8. We are following Article 8 19 but we've started discussions on it but we haven't 20 finalized anything yet. And I believe that we are 21 within the scope of what is permissible within the 22 Article 8 documentation here. 23 MR. DYSART: Thank you, Councillor Thomas. 24 MR. THOMAS: Thank you. 25 MR. DYSART: I just have one question that I 850 1 will probably direct to Manitoba Hydro, probably Ed 2 Wojczynski. There's something that yourselves and 3 the Commission had discussed on the third day, the 4 final day last week. It's been on my mind for the 5 past five days I guess. 6 In regard to the fixed blade design of your 7 generators, you kept referring to them as fish 8 friendly. Could you define that for me? 9 MR. WOJCZYNSKI: Yes. When we're talking 10 about the propellers, there are different kinds of 11 designs that one can use in Hydro projects. There 12 are some that have many blades and that have 13 relatively thin edges, relatively sharp edges and 14 fast moving water. And in those cases, there is a 15 higher likelihood and susceptibility of fish being 16 hurt in one way or another if they go through those. 17 And so there has been an increasing 18 information and assessment of what kind of design is 19 the most suitable for minimizing impact on fish. And 20 so the kind of design we are using in Wuskwatim is of 21 that type that has a relatively small number of 22 blades and they are fairly wide, fairly thick blades 23 so they are not very sharp. And so the movements of 24 the water is fairly uniform around them. And so 25 there is less impact on the fish. So that's what we 851 1 are referring to. 2 MR. DYSART: Impacts to fish, is that death 3 and injury, basically? 4 MR. WOJCZYNSKI: Impacts to fish would mean 5 injuries, and in some cases death, yes. But there 6 are a relatively small number of fish that would go 7 through those turbines. 8 MR. DYSART: Do you have any data to back up? 9 MR. WOJCZYNSKI: The Environmental Assessment 10 Panel would have more data on that. But I am 11 informed by them that there's a relatively small 12 number that would be going down there. But I think 13 it's better for the details of that to be dealt with 14 by the Environmental Panel. They are the experts on 15 that. 16 MR. DYSART: I'll deal with it then. Going 17 back to that fish friendly that you kept referring 18 to, is this Hydro's definition or -- 19 MR. WOJCZYNSKI: In the industry, generally 20 that's a term that's used. 21 MR. DYSART: Was there any First Nations or 22 traditional knowledge involved in defining fish 23 friendly? 24 MR. WOJCZYNSKI: The First Nation people and 25 traditional knowledge was used in the assessment of 852 1 the impacts of Wuskwatim and in consideration of what 2 would happen. So the term fish friendly is an 3 industry-wide term that's used. But for Wuskwatim 4 specifically, local people and First Nation people 5 and local people and traditional knowledge was used 6 in the assessment of the impacts. And was helped to 7 assist in their conclusion that the design we came up 8 with Wuskwatim has a much -- has less impact than 9 other designs that could have been undertaken. 10 MR. DYSART: But in regards to fish friendly, 11 that definition did not include participation from 12 NCN? 13 MR. WOJCZYNSKI: The term fish friendly is an 14 industry-wide definition. But our conclusion that we 15 could utilize that term for Wuskwatim was in part 16 made through the traditional knowledge brought in by 17 the Aboriginal people who live in the area. So yes, 18 their consideration and their judgment was part of 19 the decision for us to feel we could use that term. 20 MR. DYSART: Okay. Thank you, Mr. Wojczynski. 21 MR. WOJCZYNSKI: You're welcome. 22 MR. DYSART: With the Chair's permission, I'd 23 like to turn over my questions to Merrell-Ann Phare. 24 THE CHAIRMAN: Yes. 25 MR. GREWAR: Mr. Chairman, just before we do 853 1 that, perhaps we could enter the correspondence that 2 Mr. Dysart was referring to as Exhibit CASIL 1000, 3 letter undated from Nisichawayasihk Cree Nation, 4 Chief and Council to TANSI, re NCN Manitoba Hydro 5 Agreement in Principle vote May 3 to May 10 with 6 attachment. 7 THE CHAIRMAN: Thank you. 8 9 (EXHIBIT CASIL 1000: Letter undated from 10 Nisichawayasihk Cree Nation, Chief and 11 Council, re NCN Manitoba Hydro Agreement 12 in Principle vote May 3 to May 10 with 13 attachment) 14 15 THE CHAIRMAN: Please proceed and identify 16 yourself. 17 MS. PHARE: My name is Merrell-Ann Phare. 18 Just before I start questioning, I just wanted to 19 clarify that I know we're supposed to be 20 cross-examining on Need For and Alternatives To one 21 of two components, the other one being Environmental 22 Impact Statement, but some of the presentations made 23 by the co-proponents in the beginning at day one 24 actually include other parts that we are interested 25 in. And I just wanted to state right now that the 854 1 components dealing with the water regime in 2 particular, we would request to be able to 3 cross-examine on those in the Environmental Impact 4 Statement component because it is more related in our 5 view to that. And so we didn't know if that was a 6 correct judgment to make but we wanted to put that on 7 the record. 8 THE CHAIRMAN: You wanted to address it in 9 this particular? 10 MS. PHARE: No, in the Environmental Impact 11 Statement component. 12 THE CHAIRMAN: That seems correct to me. 13 MS. PHARE: Okay. Great, thank you. I just 14 have I think three or four areas of questioning. The 15 first two are quite short and the other one will take 16 a little bit more time. 17 The first one deals with increasing the 18 reliability of supply to Manitobans. Building 19 Wuskwatim will increase the reliability of electrical 20 supply I suppose to Manitobans. Do you recall saying 21 that? 22 MR. WOJCZYNSKI: Yes, I do. 23 MS. PHARE: Okay. And I'm trying to find out 24 what that actually means. Because as I understand, I 25 completely understand the issue of Wuskwatim per se 855 1 is not going to be exported, it contributes to a 2 broad system of electricity that then some components 3 of that are exported. So it's not that Wuskwatim 4 power specifically, uniquely, distinctly is export; 5 am I correct in that? 6 MR. WOJCZYNSKI: Yes. 7 MS. PHARE: So how long are export contracts 8 generally? Like with the addition of Wuskwatim, what 9 would you anticipate would be the length of the 10 export contract for that power? 11 MR. WOJCZYNSKI: There will be a range of 12 different kinds of contracts. They will range from 13 hour to hour, contracts to contracts as long as 10 or 14 20 years or even potentially longer. And so it would 15 be a variety of contracts. 16 MS. PHARE: Okay. 17 MR. WOJCZYNSKI: So the central assumption or 18 main assumption we made in the analysis was that the 19 dependable energy out of Wuskwatim which is the 20 amount that we are therefore confident of getting 21 even in a system drought, that we will sell -- make 22 long-term contracts to sell that power and those will 23 typically be more than three years long. 24 MS. PHARE: Oh, okay. So long term is more 25 than three? 856 1 MR. WOJCZYNSKI: That's the terminology we're 2 using, yes. 3 MS. PHARE: Okay. One of the things I was 4 wondering about is you had said that in times of 5 emergency, you could hold back that power? 6 MR. WOJCZYNSKI: Yes, I did say that. 7 MS. PHARE: What are times of emergency? Does 8 that include -- specifically what I'm trying to get 9 at is does that include times where just demand is 10 greater than supply? When local domestic demand is 11 greater than supply, is that considered an emergency 12 condition? 13 MR. CORMIE: Whenever we have insufficient 14 resources to meet the load in Manitoba, Manitoba 15 Hydro is entitled, under all its export contracts, to 16 reduce deliveries to the -- under the contract in 17 order to serve Manitoba load. And it can be an 18 emergency, it can just be during droughts that are 19 more severe than we had planned on. But at all 20 times, the load -- the demand for electricity in 21 Manitoba, the load in Manitoba has priority over the 22 export load. 23 MS. PHARE: So you're not actually then in the 24 circumstance where you're breaking your contract, 25 it's that your contract actually allows you to do 857 1 that? 2 MR. CORMIE: The contracts allow for that. 3 MS. PHARE: Oh, okay. But you do have -- you 4 have to engage in some form of compensation? 5 MR. CORMIE: We have the right to reduce 6 deliveries to the extent necessary to continue to 7 serve our own load obligations. 8 MS. PHARE: And is there some form of 9 compensation you have to pay to the people you're in 10 contract with or are you just allowed to unilaterally 11 claw-back the supply of power without any 12 compensation to the people? 13 MR. CORMIE: It depends on the contract. The 14 vast majority of the contracts, there is no 15 liquidated damages paid under those circumstances. 16 MS. PHARE: The vast majority, oh, okay. I 17 was just trying to wonder how that works, thanks. 18 That clarifies it. 19 MR. WOJCZYNSKI: Perhaps I can supplement that 20 slightly. And that is that there are other 21 circumstances where we could just choose to buy our 22 way out of a contract where let's say we're into a 23 large drought situation, we can choose to 24 economically buy the power somewhere else and have it 25 supply our export contract. And in effect, it makes 858 1 our tie line bigger because it means that we have the 2 Wuskwatim power available in Manitoba. And by buying 3 the power somewhere else, we can keep the Wuskwatim 4 power. So it's just like make our import tie line 5 bigger than it would otherwise have been. So 6 Manitobans are better off even though we are 7 generally exporting Wuskwatim. 8 And that's the comment I made in my -- in the 9 first two days and Mr. Adams made a comment the other 10 day about where we're exactly the same with or 11 without Wuskwatim with its export contracts. But 12 what he and I were both implying was that we are able 13 to have this, as you put, a clawing back. But the 14 clawing back can just be in a very normal 15 businesslike manner, going and arranging for a 16 contract to buy power somewhere else and have it 17 diverted to the export load we are going to supply. 18 And that's a very normal business arrangement. So 19 it's nothing unusual and nothing disturbing to 20 people. 21 MS. PHARE: Okay. Thank you. I was noticing 22 from your original submissions that you had stated 23 that building Wuskwatim could displace fossil fuel 24 use elsewhere, thereby at the decreasing greenhouse 25 gas emissions. And then in your binder, your 859 1 presentation, your power points on Monday, in a 2 couple of places, particularly page 4 and page 69, 3 you seemed to have increased your level of confidence 4 in your ability to do that or the ability of 5 Wuskwatim to displace greenhouse gases in 6 particularly your export markets. 7 If you see actually on page 4, I can wait 8 until you get there so you can see the language that 9 you've used. 10 MR. WOJCZYNSKI: Yes, I have it. 11 MS. PHARE: Where you say that energy from 12 Wuskwatim reduces global greenhouse gas emissions. 13 And way at the end there, on page 69, I think it 14 says, let me just get my actual language here, 15 Wuskwatim will contribute to global efforts to reduce 16 greenhouse gases. 17 So I am just wondering, I'm wondering how you 18 know that. I'm wondering what you've done to be able 19 to show that it will actually reduce greenhouse gases 20 or whether in fact what we're talking about is more 21 of a potential to do that. There's the opportunity 22 for that. 23 MR. WOJCZYNSKI: No, we are extremely 24 confident that that's what's happening and will 25 happen. For starters, historically, if you look at 860 1 our long-term export contracts, and the best example 2 is the NSP 500 contracts, Northern States Power 500 3 megawatt contract that went on for 12 years. And 4 we've recently renewed, starting again in 2005. 5 Northern States Power, who is the entity that we made 6 the sale to, they were considering back in 1983 to 7 '85, building another new coal plant. They had three 8 units at a plant called Sherco, Sherburn County. The 9 third one was an 800 megawatt unit and they are 10 considering putting in a similar kind of unit, 11 another coal unit. And the choice they had to make 12 at that time was whether to put in another coal unit 13 or whether to put in our sale, commit to our sale. 14 So ultimately, the sale did go ahead. And the 15 pricing of the sale was directly related to the 16 alternate costs that they would have had to pay. And 17 that was for the coal plant they subsequently did not 18 build. That day, they went with our sale. 19 That was a very specific example. We know 20 generically that is what had happened in the past. 21 We are certain of that. 22 We are also certain that when we -- that when 23 you look at what's happening on the short-term 24 market, which is a large portion of the exports, that 25 if you've got a Hydro unit in our system, we are now 861 1 talking about historical units but we could also be 2 talking in the future about Wuskwatim, that if you 3 have that unit already in place and you've got a 4 thermal unit, whether it's gas or coal with the 5 United States in place, and you could look at other 6 let's say wind for example, that the incremental 7 operating cost for producing another kilowatt hour 8 from the Hydro or from the wind are very low. And 9 from the coal and the gas, they are much much higher. 10 So it is an absolute certainty that the vast 11 majority of the times, that what will happen when we 12 export that kilowatt -- that when we have our Hydro 13 unit, say we have an extra one, that that will be 14 displacing the operation of the coal and gas and not 15 displacing, for example, a wind facility. So we have 16 great certainty that that is what we have been doing. 17 And if you look into the future, the same kind 18 of parameters will be operating and so we have great 19 confidence that we have displaced vast amounts of 20 greenhouse gases and other emissions and that we will 21 continue to into the future and that Wuskwatim will 22 contribute to that in a significant way as well. 23 MS. PHARE: Are you familiar with a study that 24 was done by the NAFTA Commission for environmental 25 cooperation in 2002 dealing with environmental 862 1 challenges and opportunities of the evolving North 2 American electricity market? 3 MR. WOJCZYNSKI: Are you referring to the one 4 done by the CEC? 5 MS. PHARE: Yes. 6 MR. WOJCZYNSKI: Yes. I'm not familiar with 7 the details of it. Others are more familiar with it 8 but I have some familiarity with it. 9 MS. PHARE: It was that report that brought up 10 the question in my mind because, and I have three 11 copies. I have the original, I can hand it out, but 12 it's not -- all it does here is it shows that there's 13 a vast increase in the projected production of 14 electricity or the need for it through Canada, U.S. 15 and Mexico. And just in the States below us, there 16 is over 19,000 proposed -- 19,000 megawatts of 17 proposed power in the west north central. Just the 18 States just below Manitoba. And a huge portion of 19 that, 30 per cent almost, are coal plants and the 20 rest are oil and natural gas. 21 And so I'm just wondering how, when there's 22 such a huge increase over the next ten years say, 23 projected all through the United States of plant 24 production, how any greenhouse gases can be reduced 25 by any form of that? I mean you might be -- it 863 1 doesn't look like anything is being supplanted by 2 your power at all. In fact, it looks like there's a 3 definite increase in all forms of electricity 4 production by all forms. 5 MR. WOJCZYNSKI: So I think the answer to that 6 is -- the basic answer to that is if we didn't build 7 Wuskwatim, let me make up some hypothetical numbers 8 that are -- you said 19,000 megawatts down south of 9 us if I recall your number correctly. 10 MS. PHARE: Um-hum. 11 MR. WOJCZYNSKI: The basic answer would be 12 that if we did not build Wuskwatim, there might be 13 19,200 megawatts of coal and gas generation built 14 down south of us. And that if we build Wuskwatim, 15 and over the long run, there will be 200 megawatts 16 less of thermal generation built and so there will be 17 only 19,000. I mean still a very large amount of 18 thermal generation, still a very large amount of coal 19 and natural gas. I agree with you. I absolutely 20 agree with you. 21 But the fact that we bring forward some 22 renewable virtually non greenhouse gas electricity 23 into the market will reduce, to some small degree, 24 small in terms of the total percentage of the fossil 25 fuels in the United States but still a significant 864 1 amount of greenhouse gases. So in other words, the 2 more hydro we build, the more greenhouse gases we'd 3 reduce. 4 MS. PHARE: Are you planning on tracking that 5 in the future? Like are you planning on reporting on 6 whether in fact that the claim that you're making 7 will hold true, formally reporting on that? 8 MR. WOJCZYNSKI: What we can report on is that 9 whether we export it or not. Whether we are 10 exporting or not, it's impossible for anybody to go 11 in and determine what each kilowatt hour, each 12 megawatt hour displaced. But we do, as part of our 13 VCR reporting, indicate our best estimate. So what's 14 happening with our system, how much we produce and 15 what we displace on the export markets. So our VCR 16 reporting generically has that kind of information. 17 Sorry, VCR, I should explain. The Federal 18 Government has instituted in conjunction with, well, 19 has initiated a number of years ago a voluntary 20 climate change reporting system with monitoring. And 21 companies like us get audits done and we report that. 22 And there's, in effect, an assessment to that by the 23 organization, not organization, the federal 24 instituted organization. And those are all publicly 25 available. 865 1 MS. PHARE: If as you just say it's impossible 2 to know whether or not you'll displace greenhouse 3 gases, how can your claims be so definitive in your 4 presentation then? 5 MR. WOJCZYNSKI: I didn't say that we know and 6 are confident that we are displacing greenhouse 7 gases. We can't go and verify that a kilowatt hour 8 produced by Wuskwatim goes and reduces a kilowatt 9 hour at a unit in southern Minnesota or Dakota partly 10 because that unit would never have got built for 11 example. So let me use as an example. 12 If I mentioned that there would be instead of 13 19,200 megawatts built down south, there would only 14 be 19,000 megawatts built down south. 15 MS. PHARE: Yes, I understand that. 16 MR. WOJCZYNSKI: So in that case, let's say 17 there was a unit that was going to be called Laramie 18 number 9, that Laramie number 9 would never have 19 gotten built. So ten years or five years or whatever 20 after Wuskwatim is built, how do you go and 21 demonstrate that Laramie 9 was never built when it 22 was never built? That's what I'm referring to. 23 We can demonstrate that we are exporting into 24 the United States and that there's lots of coal and 25 gas generation still going on. And you can get 866 1 reliable and meaningful and confident indicators of 2 what we're displacing but it's not on a kilowatt 3 hour, kilowatt hour basis. So that's what I was 4 referring to. 5 MS. PHARE: Thank you. That's what I was in 6 fact getting at. I just wanted to confirm that in 7 fact you're making definitive statements about things 8 you can't specifically verify. 9 MR. WOJCZYNSKI: We can verify that we 10 displace greenhouse gases. 11 MS. PHARE: But not on a kilowatt by kilowatt? 12 MR. WOJCZYNSKI: Not on a kilowatt by kilowatt 13 basis, no. 14 MS. PHARE: In a very general way that you 15 can't actually follow up on or verify is what you 16 just said? 17 MR. WOJCZYNSKI: There's sufficient confidence 18 in that for any assessment to utilize that kind of 19 information. 20 MS. PHARE: Okay. We can leave it at that. I 21 wanted to move on now to the last area that I was 22 going to question about which is -- 23 MR. WOJCZYNSKI: If I can just supplement what 24 I said. The fact that we get paid for our exports 25 means that someone is buying from us instead of 867 1 supplying it themselves. That's a pretty strong 2 verification that we're displacing something. 3 MS. PHARE: I know, but you can't verify it 4 specifically. You can definitively state that you 5 will reduce greenhouse gases but you cannot give us 6 any numbers, either now or in the future, of how much 7 that will be. So you can make it a general claim in 8 support but you can't give us any numbers to back 9 that up is my point. 10 MR. WOJCZYNSKI: Yes, we can. 11 MS. PHARE: Are you making an undertaking to 12 do that then? 13 MR. WOJCZYNSKI: We already have. We have 14 provided reliable estimates of what we'd be 15 displacing and we have great confidence in those and 16 others in the industry who are knowledgeable in this 17 area would give the same kind of estimates. And 18 those are verifiable through the methodology used and 19 these are standard type methodologies used in the 20 industry. 21 MS. PHARE: So then you can confirm that you 22 will continue to report on exactly how much 23 greenhouse gas you displace through Wuskwatim over 24 time? 25 MR. WOJCZYNSKI: We can report on a system 868 1 basis what we do and the best estimates available of 2 that. Yes, we will do that. 3 MS. PHARE: Thank you. So then the next area 4 of questioning then I just wanted to deal with was 5 there was in Councillor Thomas' opening remarks about 6 the use of traditional knowledge, I just have a few 7 questions about that. Specifically, Councillor 8 Thomas stated that Aboriginal Law was included, 9 Aboriginal Law and how the environment works was I 10 think directly taken from transcript. And I just 11 wanted to have a better explanation of what you mean 12 by Aboriginal Law. 13 MR. THOMAS: There are a number of 14 understandings as to what constitutes Aboriginal Law. 15 In the legal system itself, you have what is 16 recognized in the common-law system as constituting 17 Aboriginal Law as it is recognized and affirmed by 18 the constitution. You also have Supreme Court 19 decisions that come out of any legislation or laws 20 that impact upon the First Nations people. 21 In particular, the Sparrow Case requires that 22 there be extensive consultation with First Nations 23 when it comes to anything impacting upon us as First 24 Nations people. And if anything is to occur in a way 25 that impacts upon our rights, the event, whatever it 869 1 is, must be justified. And there is a series of 2 processes that one has to go through in order to 3 satisfy the requirements of the Sparrow Case. 4 In addition, we have our own understandings of 5 what constitutes law as First Nations people. We 6 have our own opinions on what natural law is. And 7 it's not the typical understanding as is understood 8 within the legal system that it's something that 9 comes out of the common-law system as the common-law 10 system recognizes anything to do with First Nations 11 people. That may be part of it. But it may not be 12 necessarily restricted to that understanding. 13 We have, as First Nations people, our 14 observations of what happens within our traditional 15 territory and that is acquired from a variety of 16 sources. We have our own personal experiences. Many 17 of us have been taken out by our mothers and fathers, 18 our grandmothers and grandfathers. We have been 19 taught a lot of things about how the laws work with 20 respect to the way we see things. 21 And so the natural laws that we, as First 22 Nations people, have are quite comprehensive. And 23 those are the kind of laws that we are talking about. 24 MS. PHARE: Thank you for bringing that up. 25 I'll talk about some of the common-law issues a 870 1 little bit later, but I wanted to confirm. When 2 you're talking about Aboriginal Law about how the 3 environment works, you were referring to both forms 4 of law, western common-law and the natural law of 5 your community and the historical information? 6 MS. MATTHEWS LEMIEUX: Excuse me. I'd like to 7 make sure that Mr. Thomas at least has a copy of the 8 transcript in front of him. 9 MS. PHARE: 172 to 174 are the pages where 10 Councillor Thomas discussed this. 11 MR. THOMAS: So from our perspective, as 12 Aboriginal people, we do take quite a comprehensive 13 view on things. It is very inclusive as opposed to 14 being exclusive. And we do have our own way of 15 looking at things. But we're not restricted to 16 looking at things just from our own particular way of 17 looking at things. We also incorporate other 18 viewpoints that may be the same or may be different 19 from ours. 20 MS. PHARE: So in that component where you're 21 talking about the traditional knowledge that you 22 included in the studies, all the studies that have 23 been done, you were referring to both forms of 24 knowledge, were you? Is that what you're saying? 25 MR. THOMAS: Yes. As you can tell from the 871 1 presentations that were done and the comments that I 2 had made previously, we incorporated both what we 3 refer to as traditional knowledge and also western 4 scientific knowledge. 5 MS. PHARE: Okay. Can I get a clarification? 6 Was traditional knowledge included in both the EIS 7 and the Need For an Alternative To or just the EIS? 8 MR. THOMAS: I do believe that it was used for 9 both. 10 MS. PHARE: So your community members 11 specifically gave traditional knowledge input into 12 the need for Wuskwatim? 13 MR. THOMAS: It's pretty technical on The Need 14 For an Alternatives To side of things but 15 nonetheless, we've participated as members of the 16 Committee to look at these various things. Some of 17 my colleagues and some of my other people have made 18 comments and suggestions on different things to look 19 at with respect to these things. So in that sense, 20 traditional knowledge was incorporated into it. 21 MS. PHARE: I didn't see that referred to 22 anywhere in The Need For An Alternatives To 23 components of the materials filed. 24 MR. THOMAS: I think I'll let Ed answer this 25 particular question. 872 1 MR. WOJCZYNSKI: In the Need For An 2 Alternatives, the traditional knowledge was very much 3 part of the design of Wuskwatim in the first place, 4 clearly a major part of Need For Alternatives is what 5 is Wuskwatim, what should it be. And so with 6 traditional knowledge, it was a major component in 7 the design and planning for Wuskwatim. 8 Secondly, on assessing what are the overall 9 impacts. And so when comparing Wuskwatim to other 10 alternatives, there was a major influence in there 11 and a discussion of how it's going to operate and how 12 the plant is going to operate and the modes for 13 operation. So those are all major elements of what 14 goes into the Need For An Alternatives. And when you 15 compare that to other alternatives, the thoughts of 16 traditional knowledge on what we're doing with our 17 Hydro are an important consideration. 18 MS. PHARE: Could you give me examples, I'm 19 sorry if you want to just refer me to it, I can check 20 it on my own but I couldn't find anything about 21 traditional knowledge giving you any direction or 22 indication about alternatives to Wuskwatim. 23 MR. WOJCZYNSKI: The traditional knowledge 24 wasn't in the sense of the traditional knowledge of 25 the Cree people in north about wind generation in 873 1 Southern Manitoba. That wasn't in there because that 2 wasn't the aspect of traditional knowledge and isn't 3 an area that traditional knowledge has a strength. 4 The traditional knowledge, where it came into play 5 was in all the issues relating to Wuskwatim itself. 6 And that was detailed in the EIS and what we used in 7 the Need For Alternatives we referred to, and relied 8 on EIS to expound on all the Wuskwatim design and 9 planning issues including the incorporation of 10 traditional knowledge. 11 MS. PHARE: Councillor Thomas just pointed out 12 that his community's perspective included both 13 western science and traditional knowledge and NCN is 14 a co-proponent. And so I'm struggling to figure out 15 why the community's knowledge wouldn't be brought 16 into the alternatives component when yours was. 17 MR. WOJCZYNSKI: In the Need For An 18 Alternatives, NCN was part and parcel of the 19 preparation and discussion of the Need For An 20 Alternatives submission. 21 MR. THOMAS: If I may just add to the comments 22 that are being put out. As I've indicated 23 previously, that we've identified a number of things 24 that we consider to be a part of traditional 25 knowledge. And I've indicated also that my stating 874 1 these things or identifying them in word form doesn't 2 restrict us from including other things within 3 traditional knowledge. 4 We had been involved in this process for quite 5 a long period of time. We have involved our 6 community. We have involved the community of South 7 Indian Lake as well where NCN members reside. All 8 the knowledge, all the information that has been 9 given out by our people has been included in our 10 thinking and in our discussions. 11 In some specific cases, we have situations 12 where we have an Elder's liaison person who has been 13 hired to consult closely with the others. And this 14 person comes to our meetings on a regular basis and 15 attends the Need For An Alternatives To meetings that 16 we've been involved in. And although it may not be 17 specifically written into the documents, the comments 18 and suggestions provided by the Elder's liaison 19 person is incorporated into the overall thinking as 20 to how we will look at things from a Needs For An 21 Alternatives To perspective. 22 MS. PHARE: Thank you. I just hope you can 23 appreciate that it's difficult for us on the other 24 side of this table here to know that when it's not in 25 the document. 875 1 MR. THOMAS: Well, as you may well know, we 2 come from a rich oral tradition. Not everything is 3 written down as is done in other societies. So we 4 have a tendancy to rely on a lot of unwritten 5 information as well. 6 MS. PHARE: It tended to get written down in 7 the Environmental Impact Statement though. 8 MR. THOMAS: We tried to do the best we can to 9 provide as much information as possible. 10 MS. PHARE: One of the things I was wondering 11 about is did your community specifically take a 12 decision to use traditional knowledge in this 13 process? Did you have a formal decision-making event 14 or process on that? 15 MR. THOMAS: Other than for Chief and Council 16 to make a decision, that when we start looking at the 17 possibility of doing another project within our 18 traditional territory, that we would engage in a 19 community-driven process. When we made that 20 decision, we expected that our people's input would 21 bring into consideration the use of our traditional 22 forms of knowledge and information. So in that 23 sense, yes. Did we go and have a referendum on the 24 issue? No. 25 MS. PHARE: I appreciate it's an awkward 876 1 question because this was the first time in 2 Manitoba's history that an assessment process has 3 involved traditional knowledge. And so some of my 4 questions are mostly trying to get clarification 5 about it, not meant in any form of disrespect. But 6 it's just the first time, so. 7 MR. THOMAS: I am glad that you make that 8 comment because you can see that our people have had 9 very extensive involvement in this whole process. 10 We're not just in the side lines or trying to see how 11 we can be involved, we are decision makers and we 12 have been throughout. 13 MS. PHARE: So your community was comfortable 14 with and specifically chose to share their 15 traditional knowledge with outsiders? 16 MR. THOMAS: From all indications, when we 17 conducted our workshops, our open houses, our opinion 18 surveys, when we had specific focus groups, meetings 19 with our Elders and other resource users in our 20 community, they provided us with that knowledge. And 21 from that, we take it that they don't mind sharing 22 that information. As a matter of fact, sometimes 23 they are willing to come forward and help to 24 substantiate what we're saying. 25 MS. PHARE: So you didn't find you needed any 877 1 form of data sharing agreement or releases or 2 anything like that given that the information was 3 going to be shared now with Manitoba Hydro and all of 4 their consultants and here with the Commission and 5 that kind of thing? 6 MR. THOMAS: We do have some sensitivities 7 that we're taking into consideration, i.e. the 8 location of specific sacred sites, the location of 9 sacred medicines that our people use. That knowledge 10 is something that we are very protective of and we 11 try and do the best we can to try and protect those 12 areas. 13 MS. PHARE: So does Manitoba Hydro have access 14 to that information or is that something you've 15 protected just within your community? 16 MR. THOMAS: We do provide that information 17 but we try and do it in a protective way. We do not 18 want outside interest to just come and go as they 19 please and do what they want with the locations. But 20 in terms of sharing information and knowledge with 21 Hydro, we do have to share that information in order 22 for us to think about how we could best mitigate or 23 avoid any impacts to those particular areas of 24 concern. 25 MS. PHARE: So you don't have an agreement, 878 1 say, yet with Manitoba Hydro or any of their 2 consultants that they are not to share it with 3 anybody else. There's nothing written down about 4 that as yet? 5 MR. THOMAS: Not in legally binding or written 6 form, no. But Hydro has been very respectful of our 7 concerns. And we do not expect them to do anything 8 that is untoward with regard to these areas of 9 concern. 10 MS. PHARE: I appreciate that. I'm not trying 11 to make an inference that they would, I'm just 12 referring to the need to protect the knowledge into 13 the future. 14 I was just wondering in that passage, I think 15 it's actually on page 175 but I'm not making a direct 16 quote, but you reference the fact that when western 17 science and traditional knowledge were used together 18 and they agreed with one another, then that didn't 19 present a problem. I guess the issue came when the 20 western science and traditional knowledge seemed to 21 look at the issue differently. And I think the 22 example you used was debris? You may have used a 23 debris example or it's written in one of the 24 documents where western science was of the opinion 25 that the debris resulting from flooding would stick 879 1 to the shore line and your Elders were of the opinion 2 that the debris would more float to the middle of the 3 lake. Do you recall that or am I -- no? 4 MR. THOMAS: I don't recall that specific 5 example. 6 MS. PHARE: You don't recall, okay. Well, I 7 don't need to rely on a specific example because you 8 did make the statement that at the times when western 9 science and traditional knowledge conflicted, that 10 what you did was include both answers or both 11 components in the EIS document. So you would 12 highlight. This is the two perspectives on this 13 issue. And that the way to deal with it was to adopt 14 a monitoring strategy, a monitoring program I guess 15 for that particular issue. Do I have that right? 16 MR. THOMAS: I can't recall the specific 17 statement that reflects what you're saying; however, 18 in my understanding of things, yes in general. If 19 there is an opinion that is to be extracted from 20 western scientific knowledge and also an opinion that 21 is to be extracted from traditional knowledge, if 22 there is a difference of opinion, then discussions 23 are had to see what is the best way to handle the 24 situation with a view towards trying to come up with 25 some sort of compromise to address the area of 880 1 concern. 2 MS. PHARE: So you were able to come up with a 3 compromise in every circumstance? 4 MR. THOMAS: Not in every circumstance. In 5 any negotiation that takes place, there's always some 6 give and take that occurs. And in one area, someone 7 will take one position and we'll take another 8 position. And then if we see an opportunity for 9 compromise, we'll head in that direction. If we 10 don't appear to be able to find a compromise within 11 that specific area, we look to other areas that may 12 be considered in exchange for taking a position that 13 may be more amenable to one side. 14 MS. PHARE: Mr. Thomas, what I'm getting at 15 here is what happens to the environmental impacts 16 that you haven't agreed upon? You made it very clear 17 on Monday that there were some circumstances where 18 you don't agree on what the environmental impact is 19 and your solution was to write it in the book and 20 demonitor it. And I'm wondering over the long term, 21 what happens to resolve the issue? 22 MR. THOMAS: Those areas of concern that are 23 brought about by differences of opinion are factored 24 into the overall discussions or negotiations. We do 25 have various procedures that are available for 881 1 resolving those kind of issues. One includes going 2 to Court which is usually a very time-consuming and 3 very expensive proposition. The other option that we 4 have for mediating those kind of situations is to 5 provide for an arbitration process that involves the 6 use of an arbitrator to make a decision one way or 7 the other as to how best to deal with a particular 8 issue. 9 And I can't off the top of my head think of 10 other examples but those are some that we work with. 11 MR. WOJCZYNSKI: Can I say something on that? 12 I agree with the things Mr. Thomas said and speaking 13 on behalf of Manitoba Hydro, because we've got two 14 players here, you are mentioning well what if the 15 western scientific knowledge and the traditional 16 knowledge come with two different perspectives. And 17 the example you used was the debris issue and that's 18 what Mr. Thomas was talking about. 19 Speaking on behalf of Manitoba Hydro, we have 20 already, both NCN and Hydro said there would be a 21 monitoring program. And if down the road, the 22 traditional knowledge was accurate and there was 23 going to be debris in an area where we didn't think 24 there was going to be debris and the monitoring 25 program would detect that, then we would, as a 882 1 project, go in and then act on the monitoring 2 information and, for instance, clean up that debris 3 or deal with it in whatever was the most appropriate 4 way to deal with it at that time. 5 And I agree with Mr. Thomas, that if worst 6 comes to worst, there are mechanisms in place to deal 7 with it. But on Hydro's side, we would be acting in 8 a responsible manner and doing whatever it was that 9 was appropriate at that time. So I think it would be 10 a rare circumstance that we'd have to go that far. 11 But I'd suggest that perhaps we're getting 12 into an area that's more and more into EIS and 13 perhaps it's more appropriate to wait for the EIS 14 panel but I leave that for our participant and the 15 Chair. 16 THE CHAIRMAN: Ms. Phare, while you're 17 thinking about that, the time is maybe appropriate 18 for a break. So if you have other questions to 19 follow with, I understand. Is it convenient at this 20 point to break? 21 MS. PHARE: Yes, I think so. 22 THE CHAIRMAN: Okay. Before we do, you 23 referred to a document a while ago. I believe it's 24 the Council on Environmental Cooperation. 25 MS. PHARE: Yes, the Commission for 883 1 Environmental Cooperation. 2 THE CHAIRMAN: For Environmental Cooperation. 3 Can we ask you to table one of the copies of this 4 document? 5 MS. PHARE: Yes, I can do that. 6 THE CHAIRMAN: And Mr. Grewar would then table 7 it as one of the exhibits. As well, may I ask 8 someone from the Hydro side to give us an indication 9 as to where Article 8 may be found in the filing? 10 MR. WOJCZYNSKI: We will get back to you. 11 We'll give you an undertaking on that. 12 THE CHAIRMAN: Thank you. 13 14 (UNDERTAKING MH-21: Advise where Article 8 is found 15 in the filing) 16 17 THE CHAIRMAN: Mr. Grewar, do you wish to file 18 any exhibits at this time? 19 MR. GREWAR: None at this time, Mr. Chairman. 20 Perhaps when we get back after the break if we've 21 received the document from Ms. Phare and also Hydro 22 will let us know at some point on that Article 8 item 23 you've inquired about. 24 THE CHAIRMAN: Thank you. In that case, we 25 will now break until about somewhere between 10 and 884 1 five to. 2 3 (PROCEEDINGS RECESSED AT 10:40 A.M. AND 4 RECONVENED AT 11:03 A.M.) 5 6 THE CHAIRMAN: It's Monday morning and people 7 have perhaps more difficulty in getting to speed 8 here. As the day progresses, hopefully we'll have 9 more efficiency. We've elasticized the length of 10 this break. 11 Mr. Grewar, you indicated that you may have 12 exhibits to file? 13 MR. GREWAR: Yes, Mr. Chairman. It's just in 14 reference to the document you requested from Ms. 15 Phare and CASIL which is Environmental Challenges and 16 Opportunities of the Evolving North American 17 Electricity Market. And it's produced by the 18 Secretariat Report to Council under Article 13 of the 19 North American Agreement on Environmental 20 Cooperation. And what we have is we have the cover 21 sheet and the reference page which is page 14 of the 22 document which is what Ms. Phare was referring to. 23 That we'll enter as the exhibit. The document itself 24 is readily available on line on the Internet at the 25 CEC website. And we will endeavour to ensure that we 885 1 obtain original copy. 2 THE CHAIRMAN: Thank you. 3 MR. GREWAR: This would be entered then as 4 CASIL 1001. 5 6 (EXHIBIT CASIL 1001: Cover sheet and page 14 7 of Environmental Challenges and Opportunities 8 of the Evolving North American Electricity 9 Market produced by the Secretariat Report to 10 Council under Article 13 of the North American 11 Agreement on Environmental Cooperation) 12 13 THE CHAIRMAN: As well, some of my colleagues 14 on the Panel have requested that we get some 15 clarification in terms of where or how they can 16 access the Voluntary Climate Change Report which has 17 been referred to. Mr. Wojczynski I believe made 18 reference to this document. 19 MR. WOJCZYNSKI: Yes, Mr. Chair, and I'll just 20 take one second to try and find that. But it was in 21 the, if I recall it correctly, it was in our filings 22 but I'd better double-check that. 23 You also had asked before the break where the 24 Article 8 could be found in the filings? 25 THE CHAIRMAN: Yes. 886 1 MR. WOJCZYNSKI: And Article 8 was part of the 2 CASIL evidence presented by CASIL, I don't know, six 3 weeks ago. I can't quite remember how long ago. 4 MS. PHARE: February 25th. 5 MR. DYSART: 15th. 6 MS. PHARE: February 15th. 7 MR. WOJCZYNSKI: I guess it isn't six weeks 8 although it seems like six weeks now. And we then 9 subsequently in our rebuttle provided a link to the 10 website that provides the whole agreement for greater 11 clarity for everybody whereas CASIL had provided 12 excerpts. But the Article 8 was in the original 13 CASIL evidence from February 15th. 14 THE CHAIRMAN: Thank you. 15 MR. GREWAR: Mr. Chairman, if I can just 16 provide some clarity to, and Mr. Wojczynski is 17 correct, it is CASIL Exhibit 0013 pre-hearing 18 exhibit. 19 THE CHAIRMAN: Thank you. And you will 20 clarify for us whether the voluntary climate change 21 report is already within the exhibits filed. 22 MR. WOJCZYNSKI: Yes, I am double-checking 23 that. 24 THE CHAIRMAN: That's fine. 25 MR. WOJCZYNSKI: Whether it's in there or not. 887 1 We will take that as an undertaking. 2 THE CHAIRMAN: Thank you. 3 4 (UNDERTAKING MH-22: Advise whether the Voluntary 5 Climate Change Report is already within the exhibits 6 filed) 7 8 THE CHAIRMAN: Can we go back to the questions 9 with CASIL? 10 MS. PHARE: Okay. I would just like to 11 confirm that the question that we ended on just 12 before the break, that it's okay with us. It dealt 13 with the decision-making process that the 14 co-proponents undertook in a conflict between Western 15 Science and Traditional Knowledge and Mr. Wojczynski 16 suggested that it be moved to the Environmental 17 Impact Statement section and we are prepared to do 18 that if that's all right. 19 Okay. My last series of questions deal with 20 Councillor Thomas' statements here dealing with their 21 consultation with your community. In particular, you 22 had stated that you have engaged in meaningful 23 consultation with your community on this project 24 throughout its development and will continue to do so 25 prior to it actually being implemented. 888 1 And so I wanted to confirm, because you did 2 also mention just now in questioning about your 3 community's reliance upon or use of some of the 4 western law. You have referred to Section 35 of the 5 Constitution that protects your rights, Aboriginal 6 and Treaty rights. Actually recognizes and affirms 7 them. So I'm just trying to get some clarification 8 on what you meant when you were saying that you were 9 meaningfully consulting with your community members. 10 Are you referring to the activities you have 11 engaged in so far on the Need For An Alternatives To 12 and the Environmental Impact Statement discussions 13 whereby you got environmental information and process 14 information and that kind of thing? Is that what you 15 mean by meaningfully consulting with your community 16 members? 17 MR. THOMAS: When I say that we've been 18 involved in community consultation, as I've indicated 19 previously, we're talking about a process that is 20 community driven. We take direction from our people 21 as to what it is that they want us to look at. And 22 within that context, we've tried to ensure that we do 23 have meaningful community representation in our 24 process in order for that information to be much more 25 available to people who have been hired to consult 889 1 with the community. 2 These people are our own community members 3 which also includes two employees with South Indian 4 Lake. So we include them in our process. And when 5 we are involved in the discussions and negotiations 6 with Hydro as we look to all these different areas of 7 concern, we provide that information to our people as 8 best we can. And it's an ongoing process. 9 We had been involved in the provision of 10 information for a number of years now. And we are 11 planning to continue to carry on that way of 12 communicating with our community. 13 MS. PHARE: So to clarify, you were engaged in 14 those discussions with your community for the 15 purposes of producing essentially the 10 linear feet 16 of binders, the material that's necessary for the 17 review of the project essentially, right? 18 MR. THOMAS: Yes. We've even had -- we've 19 even ensured that it is our own people that were 20 hired, to make sure that they were involved in 21 assisting the many different experts that look in 22 particular areas, to ensure that we did have our 23 traditional knowledge component included in the 24 overall scheme of things. 25 MS. PHARE: And I guess the additional piece 890 1 would be consulting with them about the deal, the 2 final economic partnership I suppose. 3 MR. THOMAS: That will be a part of it, yes, 4 and it has been since we started. 5 MS. PHARE: Okay. 6 MR. THOMAS: I should also point out that many 7 of the consultants that are here are NCN people, that 8 they are members, but we also have other consultants 9 that work for us. As I indicated previously, we 10 developed a joint process with joint decision making 11 as to who the consultants will be from the many 12 different areas that are being looked at. And those 13 people work for both NCN and also Hydro. Hydro may 14 have some of its own as well but it's all a team 15 effort. 16 And so when we share information about 17 traditional knowledge, it's done within that context. 18 MS. PHARE: So you haven't been engaging in 19 consultations with your people about their Treaty and 20 Aboriginal rights that are protected by Section 35 is 21 what you're saying? 22 MR. THOMAS: There is a consultation process 23 that we involve ourselves in to ensure that all our 24 rights are protected. So we have talked about those 25 kind of issues, share that information with our 891 1 people. In addition, I believe the Federal 2 Government of Canada has an obligation or has a duty 3 to consult with the First Nations people whenever 4 there's potential for impacts on their Treaty and 5 Aboriginal rights. And that's I believe a Section 35 6 consultation process. And that's something that is 7 being undertaken by the Federal Government. 8 MS. PHARE: So you, as NCN government, are in 9 the middle of that consultation right now? Is that 10 what you're saying? 11 MR. THOMAS: We are involved in that process 12 as well. 13 MS. PHARE: So in this particular 14 circumstance, you're acting as the proponent of the 15 Wuskwatim project and you're also acting as the 16 government of the NCN people that are being consulted 17 with by Manitoba and the Federal Government; is that 18 correct? 19 MR. THOMAS: As First Nations people, in 20 particular leaders, we do have to wear many hats 21 quite often. And so we have a lot of obligations 22 that we have to satisfy as elected officials. 23 MS. PHARE: How far through the Treaty and 24 Aboriginal Rights consultation are you? 25 MR. THOMAS: I believe Barb Connell is the 892 1 person who is in charge of that particular area. We 2 have advised her that the consultation processes that 3 we have undertaken as NCN is not something to be used 4 in place of their duty to consult with our people. 5 So we've provided instructions to her accordingly. 6 And there's been -- I don't remember exactly where 7 it's at but it's in progress right now. 8 MS. PHARE: So you don't recall -- like have 9 you personally, as the person, as the councillor in 10 charge of this project, future development, have you 11 spoken personally with Ms. Connell who is conducting 12 the Treaty and Aboriginal Rights consultation? 13 MR. THOMAS: Yes. 14 MS. PHARE: And so are you expressing -- 15 MR. THOMAS: To instruct her that the federal 16 duty to consult is not something that we're doing. 17 MS. PHARE: Right. 18 MR. THOMAS: What we're doing is all good but 19 for the Federal Government not to use that and say 20 that, okay, this process had been undertaken, 21 therefore the duty to consult requirements have been 22 satisfied. 23 MS. PHARE: Okay. 24 MR. THOMAS: They have to carry through with 25 their own process and they've been instructed to do 893 1 so accordingly. 2 MS. PHARE: Yes? 3 MR. THOMAS: And they've been instructed to 4 ensure that in doing so, that they also include our 5 future development team, more in particular my 6 co-managers Marcel Moody and Norman Linklater. 7 MS. PHARE: So do you have any idea when that 8 process is going to end? By that process, I'm 9 referring to the Treaty and Aboriginal Rights 10 consultation? 11 MR. THOMAS: We hadn't come up with any final 12 dates; however, I would expect that it would be in 13 keeping with our expectation to have a referendum 14 vote on the PDA. Hopefully, prior to that, they will 15 have completed their consultation. And the time that 16 I indicated previously was late August, early 17 September. 18 MS. PHARE: And do you have any indication of 19 whether there are any Treaty or Aboriginal Rights 20 infringements issues that your community or any of 21 your community members are concerned of yet? 22 MR. THOMAS: The issues of concern that we've 23 identified within our process are the issues that 24 we're dealing with. And if there are any other 25 issues that we may need to concern ourselves with, we 894 1 will look at those issues. 2 MS. PHARE: So I guess that's no? 3 MS. MATTHEWS LEMIEUX: If I could for a 4 minute. He responded to the question and he didn't 5 give a no, so. 6 THE CHAIRMAN: Well, the question was asked. 7 I think Mr. Thomas knows how he wants to answer. He 8 can answer yes, no or other ways too so it's up to 9 him. 10 MR. THOMAS: You have asked quite a few 11 questions. Could you clarify which question you were 12 asking? 13 MS. PHARE: Well, I can reframe my last 14 question if that's what you're -- okay. Have any 15 community members expressed to you, as of this point, 16 any Treaty or Aboriginal Rights concerns? 17 MR. THOMAS: We have -- one of my colleagues 18 always expresses concerns about any potential impacts 19 upon our Treaty and Aboriginal Rights. And he has 20 been involved in our process quite extensively. And 21 within that context, we do have Treaty and Aboriginal 22 Right issues being brought forward that will have to 23 be discussed. 24 MS. PHARE: So you are intending sometime 25 between now and August in bringing those forward, 895 1 those issues forward to the Federal and Provincial 2 Governments? 3 MR. THOMAS: If we have any cause for concern 4 with respect to any infringement of our Treaty and 5 Aboriginal Rights, yes, we do intend to address those 6 areas of concern. 7 MS. PHARE: And I guess you would intend on 8 having those, if they are infringements, fully 9 compensated before the agreement is voted on or the 10 process or the proposed compensation agreement I 11 guess would include Treaty and Aboriginal Rights; is 12 that what you're saying? 13 MR. THOMAS: We will have a process in place 14 to address those issues of concerns, yes. 15 MS. PHARE: Prior to the vote? 16 MR. THOMAS: Prior to the vote, yes. 17 MS. PHARE: Okay. Have any of your community 18 members expressed any concern about the fact that in 19 this particular circumstance, you are acting as both 20 the co-proponent of a project and also the government 21 that is in a position to be protecting the community 22 rights and acting in the best interests of the 23 community? Has anybody seen that as a conflict of 24 interest in your community? 25 MR. THOMAS: As I indicated previously, we do 896 1 live in a democracy and in a democracy, you will have 2 those who are for and those who are against. And 3 some may identify issues that they think are relevant 4 for their particular position. 5 And in our situation, yes, those kind of 6 issues have been brought forward. They had been 7 brought forward via a number of different avenues. 8 Some will ask us directly and others will ask others 9 to ask on their behalf. There are some groups that 10 are being -- that may be asked to ask certain 11 questions from me or from Chief and Council or from 12 our team that are intended to bring forward these 13 kind of issues. 14 But in terms of any potential for conflict of 15 interest, we always ensure that we have legal 16 representation available in order to address any 17 conflict of interest issues that may arise now and 18 again. And we involve ourselves in the process to 19 divest ourselves of any conflict of interest. 20 MS. PHARE: So what do you think you're going 21 to do if it ends up that you, as co-proponent, NCN as 22 co-proponent is impacting the Treaty and Aboriginal 23 Rights of your own members? Are you going to 24 compensate yourself or how is that going to work? 25 MR. THOMAS: As I indicated previously, we 897 1 must engage in a process to justify any infringement 2 upon any Treaty and Aboriginal Rights. And if the 3 partnership that we have developed is going to do 4 such a thing, then we will have to involve our 5 people. And we are involving our people in our 6 process. 7 So that helps to address the conflict of 8 interest issue in particular in that it's not just 9 going to be Chief and Council that make the 10 decisions, it's going to be the community as a whole. 11 And the community will decide whether or not a 12 certain infringement upon their Treaty and Aboriginal 13 Rights is being satisfactorily dealt with via the 14 process that we have undertaken. 15 MS. PHARE: Okay. Those are all of my 16 questions. Thank you. 17 THE CHAIRMAN: Thank you, Mrs. Phare. Mr. 18 Dysart, did you have additional questions? 19 MR. DYSART: Maybe just one question going 20 back to my original line of questioning in regards to 21 the future vote for the Power Development Agreement. 22 The Corbier decision between Corbier and Canada, the 23 Supreme Court decision, is that applicable to that 24 voting process? 25 MS. MATTHEWS LEMIEUX: Excuse me, he's asking 898 1 for a legal opinion in terms of the response to that 2 question. And we would take the position that that 3 is not appropriate. 4 MR. DYSART: I'll rephrase my question. 5 THE CHAIRMAN: He'll rephrase his question I 6 am told. 7 MR. DYSART: Has NCN leadership reviewed the 8 possibility of Corbier being applicable? 9 MR. THOMAS: It's a question that I don't mind 10 answering. The Corbier decision was made by the 11 Supreme Court to recognize that off-reserve members 12 have the right to vote for their Chief and Council. 13 We, as a community, were involved in a process 14 whereby we created our own election code. And this 15 was done prior to the decision, the Corbier decision. 16 We felt that it was the right thing to do as a First 17 Nation community that we involve all NCN members in 18 our elections. And we have included all NCN members 19 in our referendums. 20 So we will be including all NCN members in our 21 referendum when it comes time to making a decision 22 for the PDA, including all members from South Indian 23 Lake. Unless of course they are successful in their 24 attempt to become their own separate First Nation. 25 If they do so before the vote, then that will be a