5168 1 MANITOBA CLEAN ENVIRONMENT COMMISSION 2 3 VERBATIM TRANSCRIPT 4 Volume 22 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 Tuesday, May 11, 2004 22 Radisson Hotel 23 288 Portage Avenue 24 Winnipeg, Manitoba 25 5169 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 LIST OF PARTICIPANTS 5170 1 2 Manitoba Conservation: 3 Larry Strachan 4 Trent Hreno 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 Blair McMahon 23 24 25 5171 1 LIST OF PARTICIPANTS 2 3 Manitoba Water Services Board 4 Gord Hannon 5 Steve Topping 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 5172 1 2 INDEX OF EXHIBITS 3 4 Number Page 5 6 7 MC-1001: Slide presentation of 8 Mr. Steve Topping 5186 9 10 MMF-1001: Excerpt from 11 Handsard 2004 5313 12 13 MC-1002: Cooperative environmental 14 assessment process for 15 the proposed Wuskwatim Generation 16 and Transmission Projects by 17 Mr. Strachan 5315 18 19 20 21 22 23 24 25 5173 1 2 INDEX OF UNDERTAKINGS 3 4 UNDERTAKING NO. PAGE 5 MC-73: Provide a copy of the provisions 6 and conditions as set out in the interim licence 5188 7 MC-74: Advise what the circumstances 8 are in the regulations when a licence is issued and 9 what modifications can be made 5209 10 MC-75: Advise what statutes or 11 regulations or changes have taken place that fall 12 under the term regulations of the day 5228 13 MC-76: Advise whether there have been 14 any amendments to the regulation since 1973 5230 15 MC-77: Provide information regarding 16 MMF locals being present at consultations to date 17 under stage 2 5263 18 MWS-78: Advise position whether 19 Manitoba Hydro is meeting requirements of Missi 20 Falls licence regime on a regular basis 5291 21 MWS-79: Advise if Hydro notifies 22 Water Branch re adverse impacts on community of 23 South Indian Lake each year 5299 24 25 5174 1 INDEX OF UNDERTAKINGS 2 3 UNDERTAKING NO. PAGE 4 5 MC-80: Advise which recommendations 6 from What You Told Us document were not 7 implemented and provided reasons why 5351 8 MC-81: Produce May 2002 updated 9 Woodland caribou conservation strategy, or advise 10 why not, and advise if update is contemplated for 11 May 2004 5352 12 MC-82: Inquire of Ms. Hickson if she 13 reviewed seven items and provide results of 14 review 5362 15 MH-83: Advise re Manitoba's 16 sustainability indicator initiative 5404 17 18 19 20 21 22 23 24 25 5175 1 TUESDAY, MAY 11, 2004 2 Upon commencing at 9:07 a.m. 3 4 THE CHAIRMAN: Ladies and gentlemen, 5 as per our customary practice, we will begin with the 6 opening prayer from Elder Sam Dysart. I'd ask him to 7 come forward. 8 ELDER DYSART: Thank you. Welcome, 9 everybody. I hope we have a good day today and the 10 days we will be here. Some say it's a bad day. I 11 say it's a good day. As I entered the building, 12 everybody is smiling, they even shook my hand and 13 welcomed me. That's a good sign that we are going to 14 have a good day in the building we're inside. 15 Let us pray. 16 17 (PRAYER) 18 19 THE CHAIRMAN: I too welcome you this 20 morning on this beautiful Manitoba moody morning. I 21 see that even though we've been away for a 22 substantial length of time, I see not too many 23 sunburns around here, a lot of pale faces yet, but 24 there is hope. Summer will come eventually and 25 hopefully when that happens, we won't be here. 5176 1 Like Elder Dysart stated, look at it in 2 the positive way. You wouldn't want to be outside 3 today anyways. So it's not bad to have this roof 4 above your head. Also we reiterate or add onto Elder 5 Dysart's prayer that we also obviously seek the 6 wisdom to be able to listen, to be patient and to 7 seek and speak the truth. 8 In the days since we were last sitting, I 9 have undertaken the sometime tedious, sometime not so 10 tedious task of reviewing what's on the record. And 11 I find out there's some over 5,000 pages of record, 12 and I almost completed it. And I noticed in reading 13 that, some very interesting things have been said. I 14 also noticed that some things have been said more 15 than one time and sometimes more than two times. So 16 some of the things have been repeated quite 17 frequently. And I would ask the indulgence of all 18 presenters, responders to keep that in mind so that 19 we don't unduly lengthen the process. It's not 20 because it is said 10 times that we as Commission 21 members would add special weight to that. We may 22 have to hear it twice before we hear what you're 23 saying but we don't need to hear it 10 times. 24 And I say that for the presenters and for 25 those who respond to questions that if the question 5177 1 has been asked, you don't need to ask it again. If a 2 question has been responded to, you don't have to 3 respond to it again. And I'll ask my colleagues here 4 on the Commission to also help me in picking those 5 out and we are going to make every effort to be 6 flexible but also try to be equitable and make sure 7 that we don't have to unduly repeat ourselves here. 8 So I thank you. And with that, we will 9 begin the business of the day. And we have a 10 presentation today from Mr. Steve Topping I believe. 11 Mr. Grewar. 12 MR. GREWAR: Sir, could you please state 13 your name for the record. 14 MR. TOPPING: My name is Steve Topping. 15 MR. GREWAR: Mr. Topping, are you aware 16 that in Manitoba, it is an offence to knowingly 17 mislead this Commission? 18 MR. TOPPING: Yes, sir, I am aware. 19 MR. GREWAR: Do you promise to tell only 20 the truth in proceedings before this Commission? 21 MR. TOPPING: I do. 22 MR. GREWAR: Thank you, sir. 23 24 (STEVE TOPPING: SWORN) 25 5178 1 MR. TOPPING: I would also like to advise 2 that Gord Hannon from Civil Legal Counsel Services 3 for the Manitoba Justice is also here. I'd like to 4 advise that he has provided advice to the branch in 5 terms of administering of the Water Power Act and I 6 may be calling upon him to answer some specific 7 questions. 8 THE CHAIRMAN: Would you swear him in. 9 MR. GREWAR: Could you state your name 10 for the record, sir? 11 MR. HANNON: My name is Gordon Hannon. 12 MR. GREWAR: Are you aware that it is an 13 offence in Manitoba to knowingly mislead this 14 Commission? 15 MR. HANNON: Yes, I am. 16 MR. GREWAR: Do you promise to tell only 17 the truth in proceedings before this Commission? 18 MR. HANNON: I do. 19 MR. GREWAR: Thank you, sir. 20 21 (GORD HANNON: SWORN) 22 23 MR. TOPPING: Good morning, ladies and 24 gentlemen, my name is Steve Topping. I'm the 25 Director of Water for Manitoba Water Stewardship, 5179 1 the Manitoba Government. I am here at the request of 2 the Clean Environment Commission and I would like to 3 thank the Chair for the opportunity to speak on the 4 licensing process under the Water Power Act. 5 The water power licensing process is 6 independent of the Environment Act licensing process. 7 This presentation will provide information supporting 8 the context of the CEC process. I have already 9 introduced Gord Hannon. He represents Manitoba Civil 10 Legal Services, Department of Justice, and I am 11 calling upon him to answer any questions in terms of 12 specific administration of the Water Power Act. 13 Due to technical difficulties, I don't 14 have the benefit of the screen in front of me. This 15 presentation will give a brief overview of the water 16 power licensing process in Manitoba. I will present 17 the Authority of the Crown, an overview of the Water 18 Power Act and the licensing process under the 19 regulation which is regulation 60-M.R.25/88R pursuant 20 to the Water Power Act. 21 The administration and control of 22 provincial Crown lands, waters and water powers were 23 transferred from Canada to Manitoba through a number 24 of legislations. Specifically, the Constitution Act 25 of 1930 and the Manitoba Natural Resources Transfer 5180 1 Act of 1930 as amended by the Natural Resources 2 Agreement Act of 1938. 3 Before the transfer of resources, Canada 4 administered water power developments under the 5 Dominion Water Power Act. 6 After 1930, Manitoba has administered 7 water power developments under the Water Power Act. 8 Through this Act, Manitoba authorizes the use of 9 provincial Crown lands, waters and water powers. The 10 Water Power Regulation made under this Act provides 11 in detail the process that applies to water power 12 licensing. 13 Since the fall of 2003, the Water Power 14 Act and Regulation are administered through Manitoba 15 Water Stewardship. This Act and its regulation were 16 formerly administered by Manitoba Conservation. 17 Provincial water powers include any force 18 or power contained in or capable of being generated 19 from any flowing or falling waters in such quantity 20 as to make the development of commercial value. 21 Lands required for water power are 22 provincial Crown lands or within which there is a 23 water power or are required for the protection of any 24 water power or are required for the purpose of any 25 water power undertakings. 5181 1 What is an undertaking? Water power 2 undertakings are those things that are those things 3 that are required in the development of any 4 provincial water power development such as storage, 5 regulation, augmentation, diversion and use of water. 6 Or surveying and laying out the project components 7 such as dams, the powerhouse, spillways, transmission 8 station, constructing, maintaining and operating of 9 project components for generating and transmitting 10 power and energy. And it's also the administration 11 and management of lands, works and properties. 12 The Water Power Regulation describes the 13 process for developing and licensing water power 14 development under the Water Power Act. An electronic 15 version of this Act and Regulation are available on 16 line from the Manitoba government website. 17 There are six steps in the water power 18 licensing process. The relevant sections of the 19 Regulation are shown. Firstly, the application. 20 This includes a description of the applicant, a brief 21 description of the nature of the proposed project and 22 site characteristics. 23 Secondly, there's the publication and 24 hearings. The application is publicized in the 25 newspapers to invite the public to submit protests or 5182 1 objections to the project. The Minister can call for 2 public hearings on the application in response to the 3 public submissions. 4 In terms of survey permits, these may be 5 issued allowing the applicant to enter Crown lands to 6 make detailed surveys or conduct engineering 7 investigations for the preparation of general layout 8 plans. Information from the surveys and 9 investigations are submitted to the department and 10 used to determine if the application should proceed 11 further. 12 A priority permit may be issued upon a 13 review of submitted information to give an applicant 14 priority over any other applications or applicants. 15 An interim licence. The Minister with 16 the approval of the Lieutenant Governor in Council 17 may issue an interim licence to the applicant. If 18 the proposed project is considered to be of a 19 suitable design, the interim licence allows for 20 detailed design of works and their construction and 21 operation. Manitoba Hydro has made application for 22 an interim licence so that they may construct the 23 project under the Water Power Act. 24 And finally, the final licence can be 25 awarded upon completion of the development under the 5183 1 interim licence and fulfilment of the conditions 2 under that interim licence. At that point, a final 3 licence would be issued. 4 As for an interim licence, it sets out 5 the following particulars about the water power 6 development. And briefly, the applicant, it sets out 7 the requirement of the name, address and the nature 8 of the business of the corporation. 9 There's a requirement for filing the 10 construction plans. Filings of plans is to be 11 completed within a specific time, typically several 12 months, from the issuance of the interim licence. 13 Upon substantial completion of the 14 development, to the point of producing a stated 15 minimum amount of power, is to be accomplished within 16 a specific period of time, typically five years from 17 the issuance of the interim licence. This is under 18 initial development. 19 As to lands to be occupied, a general 20 statement of the lands of the province which the 21 interim licensee may enter upon, use or occupy for 22 survey, site or investigation and construction of the 23 works. A plan is normally filed to identify the 24 lands to be occupied. 25 As for water utilized, a general 5184 1 statement of the amount of stream flows which may be 2 diverted, used or stored under the provisions of the 3 interim licence, the maximum forebay elevation and 4 plant capacity in terms of horsepower of megawatts 5 are also specified. 6 Under the interim licence, acceptance, a 7 statement which indicates that the project proponent 8 has accepted the terms and conditions of the interim 9 licence in order for the interim licence to be 10 issued. 11 And then final licence which is shown on 12 the next slide. 13 Under the Regulation, an interim licensee 14 is entitled to request a final licence upon 15 completion of the initial development and fulfilment 16 of the terms and conditions of the interim licence. 17 The final licence includes conditions of 18 the interim licence and any new conditions that the 19 minister may impose. The final licence will provide 20 for the term of operation for up to 50 years. 21 The proponent of a proposed water power 22 development requires authorizations or approvals 23 under a number of federal and provincial statutes or 24 regulations. 25 The licensing process under the Water 5185 1 Power Act is separate from the licensing process 2 under the Environment Act. 3 The Water Power Act licensing provides 4 for the authority to use provincial Crown lands, 5 waters and water powers and so involves some 6 different considerations than those of the 7 environmental approval process. The Minister of 8 Water Stewardship is charged with the administration 9 of the Water Power Act. 10 The Environment Act approval of course 11 considers the potential effects of the proposed 12 development as defined under the Act on the 13 environment. A licence under the Environment Act may 14 include terms and conditions to address potential 15 effects of the development. The Minister of 16 Conservation is charged with the administration of 17 the Environment Act. 18 The issuance of an interim licence under 19 the Water Power Act allows for a detailed design and 20 construction of the proposed generation project. The 21 decision to issue the licence may be considered after 22 concerns have been addressed through all the 23 regulatory processes. 24 And with that, I'd like to conclude my 25 presentation. 5186 1 MR. GREWAR: Mr. Chairman, if we might 2 enter as Exhibit MC-1001, the slide presentation of 3 Mr. Topping. 4 THE CHAIRMAN: Thank you. 5 6 (EXHIBIT MC-1001: Slide presentation of 7 Mr. Steve Topping) 8 9 THE CHAIRMAN: At this point in time, we 10 thank you, Mr. Topping, for the presentation. We 11 have reached a point where there will be questions. 12 Might members of the Panel, Mr. Mayer, begin. 13 MR. MAYER: Mr. Topping, what is the 14 status of Churchill River Diversion and the Augmented 15 Flow Program and how does it relate to licensing 16 under the Water Power Act? 17 MR. TOPPING: At the present time, the 18 Churchill River Diversion has an interim licence in 19 which the terms and conditions of that licence will 20 stay in force irrespective of the Wuskwatim project. 21 Manitoba Hydro has made application for an interim 22 licence under the Wuskwatim project and it is not 23 anticipated that -- it will not affect the terms and 24 conditions of the interim licence of the Churchill 25 River Diversion. 5187 1 MR. MAYER: And do you issue a similar 2 licence for the augmented flow program? We 3 understand that the Minister does something each and 4 every year, we expect, in that program. 5 MR. TOPPING: Yes. Let me refer to my 6 notes on that one. The augmented flow program is an 7 annual authorization provided by the Minister of 8 Water Stewardship. And that approval of the 9 augmented flow program is subsequent to Section 20 of 10 the Water Power Act regulation in which the Minister 11 may impose stipulation, provisos and conditions. And 12 it's also under the provision of the Section 39 of 13 the Water Power Regulation allowing amendments to the 14 interim licences specific to the Churchill River 15 Diversion interim licence. 16 MR. MAYER: My final question, Mr. 17 Topping, is having watched the water that resulted 18 from the Churchill River Diversion flow through my 19 community since the early seventies, when does the 20 interim licence get finally approved if it ever does? 21 MR. TOPPING: It is the responsibility of 22 the proponent to make application for final licence 23 for the Churchill River Diversion. There were a 24 number of terms and conditions provided on the 25 interim licence, a number of undertakings that Hydro 5188 1 must complete. Specifically one of the undertakings 2 is determining the severance line for the Churchill 3 River Diversion project which they are still trying 4 to complete that aspect of the undertaking. 5 MR. MAYER: How does one get a copy of 6 the provisions and conditions as set out in the 7 interim licence? Is that a public document? 8 MR. TOPPING: Yes, it is a public 9 document. 10 MR. MAYER: I am assuming then the 11 Commission could get a copy of that document? 12 MR. TOPPING: Yes, I can provide one if 13 you wish. 14 MR. MAYER: I would appreciate that. I 15 for one would appreciate that. Thank you very much. 16 I have nothing further. 17 18 (UNDERTAKING MC-73: Provide a copy of the provisions 19 and conditions as set out in the interim licence) 20 21 THE CHAIRMAN: Mr. Sargeant? 22 MR. SARGEANT: Just to follow on Mr. 23 Mayer's questions. Can an interim licence go on in 24 perpetuity? 25 MR. TOPPING: Under the Water Power Act, 5189 1 there is no definitive period set for finalizing an 2 interim licence. 3 MR. SARGEANT: Doesn't it sort of make a 4 mockery of the term "interim"? 5 MR. TOPPING: The final licence, under 6 most circumstances, would follow many of the terms 7 and conditions that are presently existing in the 8 interim licences. As such, it is the Water Branch's 9 responsibility to monitor Hydro's activities under 10 the auspices of that interim licence. 11 MR. SARGEANT: But they can just go on as 12 long as Hydro wants applying for an interim licence 13 annually? 14 MR. TOPPING: There is no definition in 15 the Act for specifying a period in which the interim 16 licence needs to be finalized. 17 MR. SARGEANT: Mr. Hannon, do you have 18 something to add to that? 19 MR. HANNON: If I may just add to what 20 Mr. Topping had said. The regulations provide for a 21 process. And Section 43 of the Water Power 22 Regulations provides for a final licence upon the 23 completion of the initial development according to 24 the plans and the fulfilment and compliance of the 25 terms and conditions of the interim licence. The 5190 1 Regulation contemplates that after that is done, 2 there will be a final licence. 3 So I would not say that the regulations 4 contemplate an interim licence in perpetuity. It 5 doesn't, however, put a specific time period on the 6 interim licence and the licence is issued and 7 continues. It isn't issued annually. It continues 8 until something else happens which is generally the 9 completion of the conditions and an application by 10 the operator of Manitoba Hydro. 11 MR. SARGEANT: And so the conditions that 12 remain outstanding on the CRD interim licence are the 13 drawing of the severance line? Is that what you 14 said? 15 MR. TOPPING: That's one of the major 16 undertakings that needs to be completed. 17 MR. SARGEANT: Is there any onus on Hydro 18 to complete that within a reasonable period of time? 19 MR. TOPPING: We have been working with 20 Hydro in terms of their progress on completing that 21 undertaking. 22 MR. SARGEANT: It's been about 20 years 23 now, isn't it? Yeah, I suppose closer to 30. 24 MR. TOPPING: Meaning the other 25 undertakings of course where they are developing 5191 1 community agreements. So it has taken a substantial 2 period of time to complete those conditions. 3 MR. SARGEANT: Thank you. 4 THE CHAIRMAN: You state, Mr. Topping, 5 that the Water Power Act is a very different 6 licensing process than under the Environment Act. 7 This is now done by the Minister responsible for 8 Water Stewardship. So in the end, this process will 9 require licensing by the Minister responsible for 10 water? 11 MR. TOPPING: That is correct. 12 THE CHAIRMAN: As well as licensing from 13 the Minister responsible for Conservation? 14 MR. TOPPING: That is also correct. 15 THE CHAIRMAN: How many licences are 16 required for this project to proceed? 17 MR. TOPPING: Actually I don't know. I 18 just -- I am aware of the water power licence 19 requirement. The environmental licensing process and 20 also of Crown land, Crown land permanent or licence 21 for occupying the land for the transmission line. 22 THE CHAIRMAN: Currently there's an 23 interim licence stemming from the Water Power Act for 24 Hydro to occupy this territory and do the studies 25 required for this process, is that correct? An 5192 1 interim licence is currently in place? 2 MR. TOPPING: For the Churchill River 3 Diversion, not for the Wuskwatim project. 4 THE CHAIRMAN: There has to be some kind 5 of licence, maybe that's from Conservation, for the 6 proponent to begin its surveys, its studies in the 7 area? 8 MR. TOPPING: Yes, the water power 9 licence, interim licence does provide the 10 authorization for Hydro to proceed for construction 11 layout and construction. 12 THE CHAIRMAN: So there is an interim 13 licence? 14 MR. TOPPING: Oh, sorry, I misunderstood 15 your question. In terms of collection and 16 environmental assessment, undertakings, for instance 17 what's completed today, Manitoba Hydro has received 18 Crown -- Crown lands permits are in place. And 19 secondly, they have made application for a survey 20 permit which will provide for the construction layout 21 of the project. 22 THE CHAIRMAN: And there is no interim 23 licences from under the Water Power Act? 24 MR. TOPPING: No. Manitoba Hydro made 25 application May 6th of 2003 for an interim water 5193 1 power licence. And it is undergoing due process 2 within our department. 3 THE CHAIRMAN: So it hasn't been issued 4 yet? 5 MR. TOPPING: No, it has not. 6 THE CHAIRMAN: So the studies and 7 analysis of water, anything related to water, whether 8 it's the turbidities, suspended solids or 9 invertebrates of the water or fish, et cetera, that 10 does not come under the Water Power Act? 11 MR. TOPPING: We will be looking at 12 various information in order to award an interim 13 licence under the Water Power Act. For instance, the 14 recommendations from the Clean Environment 15 Commission, many of those recommendations may also go 16 in as conditions to the water power interim licence. 17 The Wuskwatim Aboriginal consultations 18 that the province is conducting will also be 19 information that will be considered along with the 20 proponent's submissions. 21 THE CHAIRMAN: But at this point in time, 22 the proponent is authorized to proceed and do the 23 analysis without requiring an interim licence to do 24 that, water analysis, environmental impact analysis 25 in terms of the water resource. That's correct? 5194 1 MR. TOPPING: That's correct. The water 2 power licence has nothing to do with the 3 environmental conditions. 4 THE CHAIRMAN: Eventually, the Minister 5 responsible for Water Power Act, I think you said a 6 while ago, is involved in the granting of a licence. 7 In the EIS, in terms of water, the water resources in 8 the area, there are a number of assessments that deal 9 with water. And in dealing with these, very often 10 the proponents proposes to put in place some 11 monitoring programs or perhaps some water management 12 programs or maybe some other conditions that the 13 proponent proposes to do. Would these be reflected 14 in the licence that would be granted under the Power 15 Act? 16 MR. TOPPING: Yes. We would consider the 17 conditions in the Environment Act licence if they are 18 appropriate for incorporation in the water power 19 licence. The Water Power Act, its primary 20 responsibility is to monitor the established flow 21 regime paramaters Hydro has given under the -- Hydro 22 would be given under an interim licence. As such, 23 there's a monitoring process related to Hydro's 24 operation of the facilities. 25 THE CHAIRMAN: A monitoring process that 5195 1 you undertake as a department? 2 MR. TOPPING: It is a requirement for 3 Hydro to satisfy the conditions of the interim 4 licence. 5 THE CHAIRMAN: So it is a requirement put 6 in the licence in terms of an obligation imposed on 7 the proponent to monitoring? 8 MR. TOPPING: Monitoring in terms of 9 their flow regime, their licence flow regime that 10 there would be established in the licence. 11 THE CHAIRMAN: Okay. What about anything 12 related to the quality of the water? 13 MR. TOPPING: Based on my past knowledge 14 of other licences, no, the water quality is not a 15 requirement under the Water Power Act to monitor 16 that. But it's not to say that that may not be 17 considered. 18 THE CHAIRMAN: As I understand it, from 19 the federal level, there is also requirements, there 20 is a licence granted or licences granted to the 21 operation. Would water quality be reflected in 22 conditions related to those licences? 23 MR. TOPPING: I can't speak to that. 24 THE CHAIRMAN: You indicated that some 25 monitoring conditions may be reflected in the 5196 1 licence. If the proponent proposes to do some of the 2 monitoring, would those be the type of monitoring 3 conditions put in the licence? 4 MR. TOPPING: Those that the proponent 5 may propose and that may be imposed upon them through 6 the licensing process. It could be monitoring of the 7 flow regime and identifying exceedances, if they did 8 occur, in the licence conditions for potentially low 9 flow or maximum flow conditions or targeted 10 elevations of forebays. 11 THE CHAIRMAN: The proponent has proposed 12 some monitoring programs. If they are not reflected 13 in the licences, how will you ensure that these 14 monitoring programs are carried out? 15 MR. TOPPING: The Water Power Act will 16 cover off the monitoring related to Hydro's 17 operations in terms of the flow regime. I'd expect 18 the Environment Act licence will cover off any 19 environmental monitoring requirements. 20 THE CHAIRMAN: The way I understand it, 21 the new Water Stewardship Department and the Minister 22 which is responsible for that department had some 23 obligations not only in terms of flow but in terms of 24 water quality. If not, I'm just wondering under what 25 guise the Minister is making comments in terms of 5197 1 enhancing the quality of Lake Winnipeg, et cetera, 2 and programs or a management program to do that? 3 MR. TOPPING: Definitely Manitoba Water 4 Stewardship has water quality, water quantity in 5 their mandate. We will be putting the necessary 6 provisions through monitoring that are permissible 7 under the Water Power Act legislation. 8 THE CHAIRMAN: Yes, but so far what you 9 told me, that relates only to the flow program. 10 You've basically stated that none of that relates to 11 water quality. 12 MR. TOPPING: Well once again, I'd like 13 to reiterate. I'd expect the environment licence 14 will cover off environmental monitoring conditions 15 and frequency of reporting. 16 THE CHAIRMAN: So anything related to the 17 water quality comes under the Conservation 18 Department. It's not within your minister's purview? 19 MR. TOPPING: The province has other 20 legislation, for instance, the new Water Protection 21 Act which may have some application. But once again, 22 that Act has not been passed. 23 THE CHAIRMAN: Okay. So perhaps it is 24 due to that fact, that you're still referring only to 25 water flow. That would transfer these additional 5198 1 responsibilities then under this new Act to the 2 Minister responsible for Water Stewardship? 3 MR. TOPPING: I expect the terms and 4 conditions of the Environment Act licence will have 5 precedence over Water Protection Act. And there may 6 not be necessarily overlap between the two Acts in 7 this matter. 8 THE CHAIRMAN: Yes. I'll leave it at 9 that for now. I'll come back to that. Other 10 questions? Ms. Avery Kinew. 11 MS. AVERY KINEW: Good day. I was 12 wondering about monitoring and who does the 13 monitoring, what kind of reports you receive, how do 14 you monitor the reports? 15 MR. TOPPING: Yes, the responsibility is 16 Manitoba Hydro's to do the monitoring through gauging 17 stations along the system as established in the 18 interim licence. The frequency that we have for 19 monitoring on the Churchill River Diversion system, 20 it's at a number of points along the system. Hydro 21 is required to provide weekly bulletins on the 22 operations of Lake Winnipeg Regulation, Churchill 23 River Diversion. They are also required to provide a 24 monthly summary report on those operations and/or at 25 any time there could be a potential deviation from 5199 1 licence divisions. 2 MS. AVERY KINEW: What role does the 3 Department of Water Stewardship have? Do you check? 4 Do you do spot checks? 5 MR. TOPPING: The Department of Water 6 Stewardship has a responsibility of checking the 7 accuracy of that information and checking to see it 8 complies with the terms and conditions of the interim 9 licence. 10 MS. AVERY KINEW: So you're actually on 11 the ground sometimes out there or do you just receive 12 written reports? 13 MR. TOPPING: Primarily written reports. 14 There are standards in which are set in terms of 15 picking this information up. For instance, Water 16 Survey of Canada also has a role in picking up some 17 of the stations related to -- that aren't necessarily 18 Hydro's operation but are supporting information for 19 the monitoring process. 20 MS. AVERY KINEW: Thank you very much, 21 Mr. Topping. 22 THE CHAIRMAN: Mr. Mayer. 23 MR. MAYER: I'd like to follow up 24 something that the Chair was asking. Now, I think I 25 heard you correctly. The Minister of Water 5200 1 Stewardship doesn't have the authority at this point 2 in time to be concerned about the quality of water. 3 That is the responsibility of the Minister of the 4 Environment or the Minister of Conservation under the 5 Environment Act. Is that what I heard you say? 6 Because it very seriously conflicts with the public 7 statements made by both the Minister of Water 8 Stewardship and the Premier. 9 MR. TOPPING: Sir, I'll have Gord answer 10 that question. 11 MR. HANNON: Mr. Mayer, I believe what 12 Mr. Topping was getting at is the objectives of the 13 Water Power Act itself which is part of the mandate 14 of the Department of Water Stewardship. It's not all 15 of the mandate. And so the Water Power Act is 16 focused on the use of Crown land, Crown waters and 17 water powers associated with the water power 18 undertaking. 19 There are other elements of the 20 Department of Water Stewardship including the new 21 water protection legislation Mr. Topping spoke of. 22 So that the licence under the Water Power Act focuses 23 on the water power issues whereas environmental 24 management and monitoring issues would generally fit 25 probably more closely with the licence under the 5201 1 Environment Act now administered by the Department of 2 Conservation. 3 MR. MAYER: And so the water quality 4 issue in something like Churchill River Diversion or 5 the development of Wuskwatim falls under the 6 authority of the Environment Act which still falls 7 within the purview of the Minister of Conservation, 8 not the Minister of Water Stewardship; am I right? 9 MR. TOPPING: That is correct. 10 MR. HANNON: I would add to that, though, 11 these are not mutually exclusive. That the 12 Department of Conservation through the Environment 13 Act is responsible for licensing that deals with the 14 environmental effects generally including water-based 15 environmental effects. And whereas the Department of 16 Water Stewardship has the specific water focus. The 17 Environment Act is a comprehensive effect which 18 includes licensing on water-based environmental 19 effects. 20 MR. MAYER: I recognize that there's 21 still some transition kinks that probably are going 22 to have to be worked out. I was sort of trying to 23 inquire of where quite they were at. I think I have 24 some idea of it. 25 Back to the interim licence. Firstly, 5202 1 Mr. Falk was kind enough to provide me with a copy of 2 the interim licence so we don't worry about that. In 3 going through the licence, I am assuming the 4 severance line issue is required in order to satisfy 5 the condition of the licence in Section 5, as I read 6 it, that accurately defines the amount of Crown land 7 that must be occupied or set aside for the purposes 8 of the project. Is that what the severance line is 9 for? 10 MR. TOPPING: That is correct, yes. 11 MR. MAYER: Now, we have fairly clear 12 maps, at least I thought we had, in Thompson as to 13 where that severance line was. Where are we missing 14 the drawing of the severance lines? I mean after 30 15 years, I find it hard to understand in light of the 16 fact that after the issuance of the licence or the 17 interim licence for the diversion, Hydro came back 18 and got consistently for the last number of years the 19 augmented flow program approved annually. I'm having 20 trouble understanding why after that period of time, 21 somebody hasn't been able to tell us along what is, 22 in terms of geography, a relatively short distance 23 where the severance line would be. Like what's the 24 hold-up? 25 MR. TOPPING: Manitoba Hydro has not 5203 1 submitted plans detailing the severance line at this 2 time. 3 MR. MAYER: None of it? 4 MR. TOPPING: No. 5 MR. MAYER: Thank you. 6 THE CHAIRMAN: Mr. Abra. 7 MR. ABRA: Mr. Topping, my name is Doug 8 Abra. I'm the counsel for the Clean Environment 9 Commission. I had some questions I'd like to bring 10 out. Picking up firstly on the issue that was raised 11 by the chairman and by Ms. Avery Kinew on the issue 12 of water quality. I gather that's not your area of 13 jurisdiction so to speak. It's not your bailiwick? 14 MR. TOPPING: Water quality is the 15 responsibility of Manitoba Water Stewardship. We 16 have a water quality section managed by Dwight 17 Williamson that does do ambient water quality 18 monitoring. 19 MR. ABRA: What I'm getting at, sir, is 20 we do have some questions related to water quality 21 standards, objectives, guidelines and so on. Who 22 would be the best person to answer those questions? 23 MR. TOPPING: Under the Water Protection 24 Act, this new legislation, those standards, 25 guidelines are set out in that new legislation. 5204 1 Dwight Williamson's water quality management section 2 will be responsible for the administration of that 3 Act. 4 MR. ABRA: Mr. Hannon, did you have a 5 comment? 6 MR. HANNON: No, Mr. Abra, thank you. 7 MR. TOPPING: Dwight Williamson reports 8 to myself as Director of Water at this point in time. 9 MR. ABRA: He is the one who's going to 10 be responsible for the standards and so on? 11 MR. TOPPING: That's correct. 12 MR. ABRA: Would he be available to 13 testify in the event we decided we wanted to get 14 evidence in that regard? 15 MR. TOPPING: I don't see a problem with 16 that. 17 MR. ABRA: Thank you very much, sir. 18 Also on the issue of monitoring of that Ms. Avery 19 Kinew is asking about, some of the intervenors at 20 these hearings have taken the position quite strongly 21 at times that there is the potential or an actual 22 conflict of interest in Manitoba Hydro being 23 responsible for the monitoring. And you have drawn 24 an analogy that was sort of commented today in an 25 essence that a team in the Stanley Cup Playoffs 5205 1 supplies a referee. Has there ever been any 2 consideration given to ordering independent 3 monitoring as opposed to it being done under the 4 auspices of Hydro? 5 MR. TOPPING: There have been specific 6 circumstances and I would cite the on Lake Winnipeg 7 Regulation, the gauging stations around Lake Winnipeg 8 were audited for accuracy and in terms of accuracy of 9 the gauges and the publication of the information. 10 That's a specific example I could cite. 11 MR. ABRA: So there have been instances 12 where it has been done, where independent monitoring 13 has been ordered? 14 MR. TOPPING: That's correct. 15 MR. ABRA: And subject to recommendations 16 that may be made by someone, whether the Commission 17 or whoever in this regard, is that something that 18 your department would consider in issuing either the 19 interim or the final licence? 20 MR. TOPPING: It may be a consideration. 21 MR. ABRA: Okay. Now, going nextly to 22 Churchill River Diversion, a follow-up on some of the 23 questions that have been asked by members of the 24 Commission, the interim licence for CRD, or Churchill 25 River Diversion, has been in place now I gather for 5206 1 almost 30 years? 2 MR. MAYER: May 11, 1973. 3 MR. TOPPING: Since May 11, 1973, that's 4 correct. 5 MR. ABRA: Thirty-one. I didn't know it 6 was May 11th, we just seemed to hit it right. Is it 7 unusual, sir, for an interim licence to be in effect 8 that long? 9 MR. TOPPING: From my experience, no. 10 MR. ABRA: It's not. So there have been 11 other instances where interim licences have been in 12 place for that long? 13 MR. TOPPING: Yes. 14 MR. ABRA: Involving projects other than 15 those related to Manitoba Hydro? 16 MR. TOPPING: No, specific to Manitoba 17 Hydro licences. 18 MR. ABRA: These are ones related to what 19 other than CRD, sir? 20 MR. TOPPING: Lake Winnipeg regulation. 21 MR. ABRA: That's still an interim 22 licence that's in place? 23 MR. TOPPING: That's correct. 24 MR. ABRA: Okay. Now it's my 25 understanding that the annual approval that's given 5207 1 for the augmented flow program, or AFP as everyone 2 seems to refer to it, is not included in the interim 3 licence that's given annually to Hydro related to 4 CRD; am I correct? 5 MR. TOPPING: The interim licence is not 6 given annually. The augmented flow program is 7 provided. 8 MR. ABRA: Is approved? 9 MR. TOPPING: Is approved on an annual 10 basis. 11 MR. ABRA: Is there any particular reason 12 why it's not included in the interim licence for CRD? 13 MR. TOPPING: It may be considered in the 14 final licence for CRD. 15 MR. ABRA: But at present, it's the 16 intention just to carry on by giving annual approval 17 to the augmented flow program with the interim 18 licence remaining in effect? 19 MR. TOPPING: That has been our process 20 today. 21 MR. ABRA: Can you give us any idea as to 22 when it's likely the final licence will be issued for 23 CRD? 24 MR. TOPPING: Manitoba Hydro has 25 indicated that once the Wuskwatim licensing 5208 1 project -- licensing process is completed, the 2 outstanding issues related to that project, they will 3 make application for final licence for CRD. 4 MR. ABRA: And at the time that 5 application is made for final licence, could that 6 trigger hearings either by federal authorities or 7 provincial environmental assessment process? 8 MR. TOPPING: The province is prepared 9 for consultations for the CRD licensing. The nature 10 of those consultations will be dependent on Hydro's 11 submission and the interest at that time from the 12 public. 13 MR. ABRA: Okay. Now, once a final 14 licence is issued, is it possible to make 15 modifications or adjustments to it? 16 MR. TOPPING: Maybe I'll let Gord answer 17 that one. 18 MR. ABRA: That's fine. 19 MR. HANNON: I believe there are 20 provisions for, in certain circumstances, making 21 adjustments to a final licence. 22 MR. ABRA: There are specific 23 circumstances in the regulations, Mr. Hannon? In 24 other words, they have to fall within certain 25 criteria for modifications to be made? 5209 1 MR. HANNON: Well, I believe the 2 regulations contemplate amendments, and I'll see if I 3 can find the provision. And as is the case for 4 interim licences, it is possible to amend them. 5 Again, it depends on the specific conditions and the 6 specific circumstances. 7 MR. ABRA: Can we have an undertaking 8 from you to provide us more information in that 9 regard, once you've had a chance to look it up, as to 10 what the circumstances are and what modifications can 11 be made? 12 MR. HANNON: I'll try to do that right 13 away. I'm just leafing through the pages here but 14 certainly I can do that. 15 MR. ABRA: That's fine. Thank you. 16 17 (UNDERTAKING MC-74: Advise what the circumstances 18 are in the regulations when a licence is issued and 19 what modifications can be made) 20 21 MR. ABRA: What are the penalties and 22 consequences of any licensee that violates the terms 23 and conditions of a licence, whether advertently or 24 inadvertently? 25 MR. HANNON: There are -- a licence 5210 1 itself is subject to enforcement or termination in 2 the event of a failure to comply with it because what 3 a licence constitutes is an authorization on 4 conditions to use Crown lands, waters and water 5 powers. And accordingly, the failure to comply with 6 a licence may have consequences in terms of either 7 specific enforcement actions, if set out in the 8 licence, or termination or similar enforcement. 9 MR. ABRA: The ultimate sanction would be 10 termination of the licence I assume? 11 MR. HANNON: Right. 12 MR. ABRA: Are there investigations that 13 are carried out in that regard, sir, or how does this 14 type of thing come about? 15 MR. TOPPING: As I indicated, we do 16 monitor Manitoba Hydro's operations. Should there -- 17 sometimes there are requested deviations from the 18 terms and conditions of the interim licence in 19 which -- for operational consideration only. And 20 Hydro does submit to us in writing the reasons for 21 those deviations and is responsible for mitigation of 22 any impacts related to a deviation. Hydro has a very 23 good record in terms of identifying those deviations 24 to the branch. 25 MR. ABRA: And then in consultation with 5211 1 the branch and Hydro then try and work through these 2 deviations and so on? Is that basically what your 3 experience has been? 4 MR. TOPPING: That's correct. 5 MR. ABRA: Okay. The interim licence for 6 the Churchill River Diversion does have certain 7 requirements related to specified minimum flows at 8 Missi Falls; am I correct? 9 MR. TOPPING: Yes, you're correct. 10 MR. ABRA: Okay. Now, those are modified 11 each year by the Augmented Flow Program or can be 12 modified each year? 13 MR. TOPPING: The Augmented Flow Program 14 has not had changes since 1986, so it has been -- 15 MR. ABRA: The same standards apply? 16 MR. TOPPING: It's been renewed every 17 year under the same conditions. 18 MR. ABRA: But when you say it's been 19 renewed each year, that also includes specifications 20 related to water flow at Missi Falls? 21 MR. TOPPING: That's correct. 22 MR. ABRA: Each year, when you examine 23 the application for the Augmented Flow Program, there 24 is an application made I understand, is there? 25 MR. TOPPING: That's correct. 5212 1 MR. ABRA: When you examine the 2 application each year, do you take steps to satisfy 3 yourselves that the minimum flows that are specified 4 for Missi Falls are adequate to maintain the 5 productivity of the Churchill River and the northern 6 basin of South Indian Lake? 7 MR. TOPPING: Firstly, the application 8 receives a review by a number of agencies and 9 communities that can provide input onto that. We 10 also provide a request comments form from the 11 Environmental Approvals Branch in terms of any 12 recommendations they would have in terms of the 13 environmental considerations that should be looked at 14 in terms of the authorizing of the augmented flow 15 program. 16 MR. ABRA: Okay. And through that 17 process then, you do satisfy yourselves that there's 18 going to be sufficient flow through Missi Falls for 19 the purpose of the Churchill River? 20 MR. TOPPING: Yes, we do. 21 MR. ABRA: Okay. Just turning briefly to 22 the other generation stations that related to 23 licensing. What is the status of licensing for other 24 developments along the Churchill River Diversion 25 including Kelsey, Kettle, Long Spruce and Limestone? 5213 1 In particular, what I'm asking is has a final licence 2 been issued for any of those developments? 3 MR. TOPPING: No. I believe they are on 4 interim licences also. 5 MR. ABRA: Can you give us any time 6 parameters within which final licences might be 7 issued? What's the delay? Some of those dams have 8 been in place now for quite a while. 9 MR. TOPPING: Once again, I would advise 10 that the proponent Manitoba Hydro has a 11 responsibility of making application and I would 12 expect those other plants would follow suit after the 13 Churchill River Diversion final licence completion. 14 MR. ABRA: Okay. 15 MR. TOPPING: As they fall under the 16 terms and conditions of that. 17 MR. ABRA: As you said earlier, your 18 present information is there may be application made 19 for a final licence for the Churchill River Diversion 20 after Wuskwatim is completed? 21 MR. TOPPING: That's correct. 22 MR. ABRA: Turning to Wuskwatim now, you 23 may have wondered when I was going to get there, but 24 I have some questions in that regard obviously. Now 25 it's my understanding from what you said in your 5214 1 opening statement that the interim licence is issued 2 for construction of the project and then the final 3 licence is effectively issued for the operation. 4 Have I got that correct? 5 MR. TOPPING: No. The interim licence 6 also covers off the operational parameters of the 7 project. 8 MR. ABRA: Okay. But ultimately when the 9 final licence is issued, it's for the purpose of the 10 final operation, for want of a better expression? 11 MR. TOPPING: That's correct. And in 12 most circumstances, would likely restate the terms 13 and conditions of the interim licence or any 14 alterations to those. 15 MR. ABRA: Now there has been application 16 made already by Hydro for an interim licence? 17 MR. TOPPING: On the Wuskwatim project, 18 that's correct. 19 MR. ABRA: When will it be issued, sir? 20 MR. TOPPING: The interim licence will -- 21 I can't give a definitive time frame. That's at the 22 Minister's discretion. And a number of undertakings 23 need to be completed by the proponent. We also 24 intend to utilize the results from the CEC Commission 25 hearings. 5215 1 MR. ABRA: Any recommendations made by 2 CEC will be considered in that regard? 3 MR. TOPPING: Absolutely. 4 MR. ABRA: And then it's ultimately the 5 Minister's discretion as to when and if any licence 6 is issued? 7 MR. TOPPING: That's correct. 8 MR. ABRA: Do you foresee that the 9 interim licence for Wuskwatim might include operating 10 conditions imposed by Churchill River Diversion and 11 the Augmented Flow Program and Churchill River weir 12 licences? 13 MR. TOPPING: Hydro has made application 14 for the project to be operated under the terms and 15 conditions of that Churchill River Diversion, 16 interim licence and Augmented Flow Program. 17 MR. HANNON: Mr. Abra, can I correct 18 something that we may have been too hasty in saying? 19 And I have checked my records and I do have some 20 records with me. And my understanding is that there 21 are final licences for Long Spruce, Kelsey and Missi 22 Falls. 23 MR. ABRA: Okay. 24 MR. HANNON: And that the others 25 including Limestone, Churchill River Diversion, Lake 5216 1 Winnipeg Regulation and Jenpeg are on interim 2 licences. 3 MR. ABRA: Are those final licences in 4 the Public Registry, Mr. Hannon? 5 MR. HANNON: I don't think they are in 6 the Public Registry. 7 MR. ABRA: They are available for review 8 by anyone that wants to see them? 9 MR. TOPPING: That's correct. 10 MR. MAYER: When was Kelsey finally 11 licensed? It's my understanding that it was 12 constructed certainly no later than 1958 and possibly 13 sometime earlier because it provided the power for 14 the construction to the mine site at Thompson as I 15 understand it. 16 MR. HANNON: I can speak to the final 17 licence. The final licence was issued in March of 18 1966. 19 MR. ABRA: Mr. Topping, the licences, 20 both interim and final, generally have terms and 21 conditions that include things as maximum and minimum 22 flows; am I correct? 23 MR. TOPPING: That's correct. 24 MR. ABRA: Maximum flow variation? 25 MR. TOPPING: Correct. 5217 1 MR. ABRA: Maximum and minimum forebay 2 elevations? 3 MR. TOPPING: Correct. 4 MR. ABRA: And maximum rate of forebay 5 elevation change? 6 MR. TOPPING: Correct. 7 MR. ABRA: Can you give us some idea of 8 what are other typical terms and conditions that may 9 be in interim and final licences? Obviously I don't 10 expect you to go through them in minute detail. Are 11 there any other significant terms and conditions that 12 might be included in an interim licence, for example, 13 for Wuskwatim? 14 MR. TOPPING: Plant capacity. That's one 15 in particular I can think of off the top of my head. 16 MR. ABRA: When you say plant capacity, 17 what do you mean? 18 MR. TOPPING: In terms of megawatts, 19 power, energy, produced maximum energy output. 20 MR. ABRA: Right. 21 MR. TOPPING: You've covered off most of 22 the operational parameters that come to mind. 23 MR. ABRA: Do either interim or final 24 licences ever include environmental terms and 25 conditions? 5218 1 MR. TOPPING: From my general knowledge, 2 not to date that have they covered off any of the 3 environmental issues. 4 MR. ABRA: Sorry? 5 MR. MAYER: On that point, I thought I 6 just read condition 14 of the interim licence for CRD 7 that required bush clearing on all occupied lands. 8 MR. TOPPING: Is that an environmental 9 consideration or the disposition of Crown lands? 10 MR. HANNON: Well, I have in the 11 Limestone licence, I probably should do better 12 service in reviewing them in more detail, there is 13 only an interim licence for Limestone. But it does 14 say this is one provision that's on page 14, 15 paragraph 15(i) speaks to studies relating to 16 facilities for the collection and passage of live 17 fish, for example. I would perhaps characterize that 18 as an environmental condition. 19 There is another one just previous to 20 that in "H", 21 "Licensing shall, to the satisfaction 22 of the Minister, clear and keep clear 23 from timber, brush and other material 24 all lands which are flooded." 25 So that could be characterized as an environmental 5219 1 condition. 2 MR. ABRA: Just for the record, Mr. 3 Hannon, you said live fish? 4 MR. HANNON: It says live fish in the 5 licence. 6 MR. ABRA: Sorry, I thought you said 7 wide. I didn't know what a wide fish was. I thought 8 the reporter had to make sure it was accurate. 9 MR. HANNON: I will enunciate. 10 MR. ABRA: What about climate change? Do 11 licences ever consider climate change? 12 MR. TOPPING: We would expect the 13 environmental licence to cover off the effects of 14 climate change. 15 MR. ABRA: Not the Water Power Act 16 licence? 17 MR. TOPPING: No, it basically gives the 18 right of use of water power, the waters and Crown 19 lands. 20 MR. ABRA: The Manitoba's Principles and 21 Guidelines of Sustainable Development you're familiar 22 with? 23 MR. TOPPING: Yes. 24 MR. ABRA: When Water Power Act licences 25 are given, do the terms and conditions take into 5220 1 consideration at all those Principles of Sustainable 2 Development? 3 MR. TOPPING: I would expect under the 4 environmental licence, there will be a requirement 5 that other statutes, other legislation will be 6 complied with as a term and condition under that. 7 MR. ABRA: That's again not something 8 that is normally put into the Water Power Act 9 licence? 10 MR. TOPPING: That is a good point. The 11 Sustainable Development Act is early 1990s and we 12 haven't issued a licence prior to that. 13 MR. HANNON: There hasn't been any new 14 Water Power Act licence issued. 15 MR. ABRA: Since the Sustainable 16 Development Statute? 17 MR. TOPPING: That's correct. 18 MR. ABRA: Okay, thank you. The Water 19 Rights Act, what is it? 20 MR. TOPPING: Sorry, I didn't hear. 21 MR. ABRA: The Water Rights Act? 22 MR. TOPPING: Oh, the Water Rights Act 23 has two components to it. It can deal with the 24 allocation of water for domestic, industrial, 25 municipal, agricultural, all uses of water. And the 5221 1 allocation -- of course water is vested in the Crown 2 so the allocation of that water is dealt with through 3 the Water Rights Act. 4 The other aspect of the Water Rights Act, 5 it does allow the construction of water works, water 6 control works such as ditches, dikes, diversions, 7 control structures and that sort. And it gives the 8 province the capability of licensing those works. 9 The Water Rights Act is administered by 10 the Department of Water Stewardship of which I have 11 the delegated authority for issuing licences under 12 that Act. 13 MR. ABRA: Under the Water Rights Act as 14 well? 15 MR. TOPPING: Under the Water Rights Act. 16 MR. ABRA: Are there any approvals under 17 the Water Rights Act required for a project such as 18 Wuskwatim? 19 MR. TOPPING: I would expect the 20 construction site would have a water withdrawal 21 requirement for use of water. 22 MR. ABRA: What's the process in that 23 regard then? Is an application made under the Water 24 Rights Act to your section? 25 MR. TOPPING: We would expect the 5222 1 proponent, once it gets its environmental licensing 2 and water power interim licence in place, to make 3 application for a water rights licence. 4 MR. ABRA: And taking a look at a project 5 such as Wuskwatim, can you give us some idea of what 6 typical terms and conditions might be in a Water 7 Rights Act licence? 8 MR. TOPPING: Well, maximum withdrawal of 9 quantities of water from the water source. I would 10 expect the environment licence would cover off the 11 treatment facilities required for returning that 12 water -- for discharge of that water back into that 13 potential water course. But it does deal with the 14 rate of withdrawal and the maximum annual withdrawal 15 of volumes. 16 MR. ABRA: And one other area, sir, to 17 change direction, that relates to emergency draw 18 downs and Hydro's application to you related for the 19 interim licence does have reference to emergency draw 20 downs from the forebay if there's a requirement 21 throughout the system; am I correct? 22 MR. TOPPING: That is correct. 23 MR. ABRA: Is your department consulted 24 at all when emergency draw downs take place or Hydro 25 thinks they are necessary? 5223 1 MR. TOPPING: Yes. Hydro will give us 2 advance notification of any emergency withdrawals if 3 required. 4 MR. ABRA: Okay. And is the ultimate 5 decision yours or your department's then as to 6 whether they can proceed with an emergency draw down 7 or not? 8 MR. TOPPING: That's correct. 9 MR. ABRA: So obviously you are consulted 10 and have decision-making power in that regard? 11 MR. TOPPING: That's correct. 12 MR. ABRA: And is one of the issues that 13 you take into consideration in deciding whether or 14 not an emergency draw down should be permitted as to 15 how many there's been we'll say during the course of 16 a year or a recent period of time or whatever? 17 MR. TOPPING: We would be concerned with 18 downstream impacts, upstream impacts and what 19 emergency notification requirements may be required 20 for -- 21 MR. ABRA: For those affected? 22 MR. TOPPING: For those affected, yes. 23 MR. ABRA: If I might just have a moment, 24 Mr. Chairman, please? 25 THE CHAIRMAN: While Mr. Abra is having 5224 1 that extra moment, under the Water Power Act, Hydro 2 pays a rental fee to the province? 3 MR. TOPPING: That is correct, for both 4 water that goes through the turbines and for Crown 5 land. 6 THE CHAIRMAN: Okay. You just referred 7 to the Water Rights Act. That applies to many other 8 users. Do they pay a rental fee? 9 MR. TOPPING: There is an industrial 10 charge under the Water Rights Act. 11 THE CHAIRMAN: Which applies to, give me 12 examples. 13 MR. TOPPING: The Brandon -- the Hydro 14 thermal generation station at Brandon for water 15 cooling pays under the Water Rights Act for 16 industrial usage. 17 THE CHAIRMAN: Okay. There are many 18 other industrial users in the province. Do they also 19 pay? To give you an example, food processors, for 20 instance? 21 MR. TOPPING: Well, it depends if they 22 are on a municipal system. Like Simplot is on a 23 municipal system, so they pay to the municipality. 24 THE CHAIRMAN: Are there other users 25 other than Hydro, for instance, who pay a rental fee 5225 1 for the use of water besides those that pay to the 2 municipality? 3 MR. TOPPING: Yes, there are others. 4 THE CHAIRMAN: Would, for instance, the 5 farming community be paying for water they use for 6 irrigation? 7 MR. TOPPING: I didn't hear that. Which 8 community? 9 THE CHAIRMAN: Farming community that use 10 water for irrigation. Do they pay a fee? 11 MR. TOPPING: At the present time, there 12 is no fee for agricultural usage of water. 13 THE CHAIRMAN: Are there other users that 14 can use water in substantial, I'm referring to 15 substantial quantities like that, that don't have to 16 pay a fee? 17 MR. TOPPING: Yes. Another example would 18 be municipalities and cities. 19 THE CHAIRMAN: Yes, but they do charge a 20 fee to those who use the water? 21 MR. TOPPING: I thought we were talking 22 about a fee under the Water Rights Act. 23 THE CHAIRMAN: That's right. 24 MR. TOPPING: Which is for the 25 consumption of water? 5226 1 THE CHAIRMAN: Yes. 2 MR. TOPPING: Or use of water. 3 THE CHAIRMAN: So in effect, you are 4 correct, they don't pay a fee to the province? 5 MR. TOPPING: That's correct. 6 THE CHAIRMAN: A while ago, you said I 7 think in a reply to Abra that in the process of 8 obtaining an interim licence under the Water Power 9 Act, that will be sometime before Manitoba Hydro can 10 obtain or in fact, yes, obtain such an interim 11 licence because for one thing, you will review the 12 CEC report and see what it has to say. And you said 13 that also Hydro had to, I'm not sure, provide 14 additional filings or meet certain conditions? 15 MR. TOPPING: Yes. Hydro also has some 16 undertakings to satisfy the Water Power Act. 17 THE CHAIRMAN: Can you talk about that? 18 MR. TOPPING: I can if I can refer to my 19 notes. One of the criteria that are used to 20 determine if the licence should be issued is under 21 Section 18 in the regulation which provides that the 22 Minister may issue an interim licence with the 23 approval of the Lieutenant Governor in Council where 24 the Minister is in the opinion that (A) the design 25 will accomplish the purpose intended. The proposed 5227 1 development is feasible and practical. The proposed 2 development will accord the most beneficial 3 utilization and the resources of the stream. And the 4 proposed development is of the best possible 5 development in the public interest. This is one 6 undertaking we will be expecting from Hydro. And 7 that's one example. 8 THE CHAIRMAN: So in essence, the EIS 9 documents filed by Hydro in which this criteria, for 10 instance, are mostly or may be all answered would not 11 be, per se, sufficient to meet these criteria? 12 MR. TOPPING: The information may be 13 contained in the environmental assessment study. But 14 the province will be expecting another independent 15 report that will cover that off. Manitoba Hydro is 16 also required to table preliminary drawings of the 17 project for review by the department. 18 THE CHAIRMAN: And all of these are 19 required before work can begin on the project? 20 MR. TOPPING: That's correct. 21 THE CHAIRMAN: Okay. Thank you. 22 MR. ABRA: Mr. Chairman, I do have one 23 other area that I wish to ask a question on. 24 The interim licence for the Churchill 25 River Diversion states that regulations of the day 5228 1 will be in effect. Now, what new legislation has 2 come into effect since 1973 that may be relevant to 3 the granting of the final licence? There has been, I 4 assume, some regulations or statutes obviously that 5 come into play over that 20 year period or almost 30 6 year period that might have some input with respect 7 to CRD in the final licence? I don't know if you can 8 think of them off the top of your head. You may not 9 be able to or Mr. Hannon. 10 Can you give us an undertaking in that 11 regard, sir, to consider what statutes or regulations 12 or changes have taken place that fall under the term 13 regulations of the day? 14 MR. HANNON: Mr. Abra, you're referring 15 to a specific provision of the CRD licence? 16 MR. ABRA: That's right. 17 MR. HANNON: I'm sure we can give you the 18 undertaking. 19 20 (UNDERTAKING MC-75: Advise what statutes or 21 regulations or changes have taken place that fall 22 under the term regulations of the day) 23 24 MR. HANNON: I have a copy of the licence 25 with me and I'd just like to check that term. Mr. 5229 1 Abra, Section 20 of the licence says this, and I'd 2 like to know if that's the provision you're referring 3 to. It says, 4 "This interim licence is issued upon 5 the expressed condition that it shall 6 be subject to the provisions of the 7 regulations and all amendments thereto 8 as may be made from time to time." 9 Is that the provision? 10 MR. ABRA: Yes, it is, Mr. Hannon. 11 MR. HANNON: I think we can answer. I 12 believe the term "the regulations" is intended to 13 refer to the Water Power Regulation at that time. 14 And I'm not sure, because it's referred to in the 15 third preamble paragraph of the licence, where the 16 term "the regulations" is referred to. It refers to 17 Manitoba regulation 95.45 and all amendments thereto. 18 MR. ABRA: Okay. 19 MR. HANNON: As a lawyer, I'd offer the 20 observation that we have a redundancy since it's 21 defined as including amendments but I didn't draft 22 that licence. 23 MR. ABRA: You'd be more careful. 24 MR. HANNON: I believe it's referring to 25 the Water Power Regulation as it has been amended 5230 1 from time to time. 2 I can give one example of where there has 3 been an amendment and that is in the fee structure 4 including the water power rentals and Crown land use 5 rentals which are changed from time to time. And so 6 that would be an example of an area where the 7 amendments, from time to time, would be expected to 8 apply. 9 MR. ABRA: Okay. But you'll consider the 10 issue of whether there have been any amendments to 11 the regulation since 1973? 12 MR. HANNON: We can do that. I'm not 13 sure I'm going to be able to advise specifically as 14 to where all the amendments have been. I am not sure 15 if I can undertake to be that specific. 16 MR. ABRA: I quite understand that. 17 18 (UNDERTAKING MC-76: Advise whether there have been 19 any amendments to the regulation since 1973) 20 21 MR. HANNON: I can say, however, that 22 there haven't been very many amendments to that 23 regulation. Certainly in my experience, that 24 regulation has been relatively unamended since that 25 time. But we can undertake to see if there's 5231 1 anything specific that we may not know right now. 2 MR. ABRA: That's fine. Thank you very 3 much. Thank you, Mr. Topping, for your assistance, 4 Mr. Hannon, thank you. 5 THE CHAIRMAN: Thank you. Before we 6 continue with questions, we shall take a break at 7 this time. It's basically 27 after or somewhere 8 around there. If we can be back by 20 to. 9 10 (PROCEEDINGS RECESSED AT 10:27 A.M. and 11 RECONVENED AT 10:47 A.M.) 12 13 THE CHAIRMAN: Okay. We continue with 14 the questions. Mr. Williams. 15 MR. WILLIAMS: Yes. Good morning, Mr. 16 Chair, members of the Panel and Mr. Topping and Mr. 17 Hannon. My name is Byron Williams for the record. I 18 am an attorney with the Public Interest Law Centre 19 representing the Consumers Association of Canada and 20 the Manitoba Society of Seniors. 21 Mr. Topping and Mr. Hannon, we've kind of 22 discussed, during the break, some of the issues that 23 I'm going to be canvassing with you. And just for 24 the panel's benefit, I am primarily seeking 25 clarification in terms of my client's understanding 5232 1 of the licensing regime around the Churchill River 2 diversion. And so hopefully, this will be of 3 assistance in some of the recommendations my clients 4 can make in final argument. 5 And to Mr. Topping, you discussed with 6 the panel, Mr. Abra and I believe Mr. Mayer some of 7 the hydroelectric operations in the north which had 8 been issued final licences under the Water Power Act. 9 And I wonder if you'd be prepared to accept, subject 10 to check, that two other Hydro operations which have 11 received final licences are Grand Rapids and Kettle 12 Rapids? 13 MR. TOPPING: I'll ask Mr. Hannon to 14 respond to that. He's done some research on that. 15 MR. HANNON: I believe that's correct. 16 MR. WILLIAMS: Thank you. I'm going to 17 go back to the Water Powers Act in a moment. But you 18 were speaking in terms of the Wuskwatim project in 19 terms of the licensing regime under the Water Rights 20 Act. And in terms of the Churchill River Diversion, 21 my understanding that for some period of time, a 22 licence also was effective with regard to it under 23 the Water Rights Act; is that right? 24 MR. TOPPING: I guess the question is 25 yes -- the answer is yes, there was a Water Rights 5233 1 licence issued for the Churchill River Diversion 2 project. 3 MR. WILLIAMS: And my understanding is 4 that the licence under the Water Rights legislation 5 expired in August 2003; is that correct? 6 MR. TOPPING: To my knowledge, that's 7 correct. 8 MR. WILLIAMS: And again, for my client's 9 benefit, my understanding is that the position of 10 your branch would be that it's no longer necessary to 11 hold the licence under the Water Rights legislation 12 because of Section 3.2 of the Water Rights Act; is 13 that right? 14 MR. TOPPING: That's correct, yes. We're 15 just going to confirm what Section 3.2 says. 16 MR. HANNON: Just for the record, 17 Subsection 3.2 of the Water Rights Act says that 18 subsection 1, which is the section providing for 19 licences, does not apply to a person exercising a 20 right under any other Act of the legislature or Act 21 of parliament. And so I believe Mr. Williams is 22 asking us and we are I think agreeing with him that 23 because there is a licence to authorize this very 24 thing, being the interim licence for Churchill River 25 Diversion, there's no requirement for an additional 5234 1 licence for a diversion of water under the Water 2 Rights Act. 3 MR. WILLIAMS: Now, if I was unlike 4 myself, if I was a smart lawyer, that might be 5 something though that a smart lawyer might think 6 worthy of challenging and asking whether there 7 properly should be a licence under the Water Rights 8 Act. Would that be right? 9 MR. HANNON: No. A smart lawyer would 10 not ask that question. 11 MR. ABRA: That's an oxymoron. 12 MR. WILLIAMS: Thank you for that. And 13 generally these questions are in terms of short 14 snappers. Just with respect to you, Mr. Mayer, and I 15 think it will be fairly short. In terms of the 16 Augmented Flow Program, my understanding is that the 17 branch believes that its authority to issue kind of 18 authorizations under the Augmented Flow Program stem 19 from Section 20 and Section 39 of the Regulation; is 20 that right? I believe that was your testimony in 21 direct? 22 MR. TOPPING: That was my testimony, yes. 23 MR. WILLIAMS: So in effect, what you're 24 saying is that under Section 39, the applications 25 under the Augmented Flow Program or applications to 5235 1 amend the interim licence; is that right? It's not 2 just a deviation, it's an amendment to the licence, 3 would that be fair? 4 MR. HANNON: I think what Mr. Topping was 5 saying, that he considers there to be authority under 6 Section 20 and Section 39 for the decisions that have 7 been made on an annual basis to provide for the 8 Augmented Flow Program. Whether that constitutes an 9 amendment of the licence or an application, you may 10 interpret that from that. But I think he said that 11 he sees that as the authority. 12 MR. WILLIAMS: Okay. And Section 72(c) 13 doesn't apply because we're speaking to an interim 14 licence rather than the final licence. Would that be 15 right in your view? 16 MR. HANNON: 72(c) of the Regulation says 17 this. It says, 18 "Every licence shall be deemed to have 19 been executed on the expressed 20 condition that the licensee shall (c) 21 at no time cause or permit the surface 22 level of waters of any river or stream 23 operated by the licensee to be raised 24 or lowered beyond the limits which 25 shall be fixed from time to time by 5236 1 the Minister or a person authorized by 2 the Minister." 3 I needed to quote that just so it's 4 understood. It doesn't say final licence. So I am 5 not sure we're in a position to say for sure that 6 doesn't apply. 7 MR. WILLIAMS: And you don't have an 8 opinion on that? 9 MR. HANNON: I am not prepared to offer 10 opinions. 11 MR. WILLIAMS: Fair enough. 12 MR. HANNON: But I do note that it does 13 say every licence and doesn't restrict it to interim 14 or final. 15 MR. WILLIAMS: Now, Mr. Topping, in your 16 Power Point presentation or your slide presentation, 17 you were referring to some of the elements that must 18 be incorporated in an interim licence. And one I 19 don't believe you referred to was the one that is 20 found in section 19(j)(ii) of the Regulation. I 21 wonder if you can turn there? 22 MR. TOPPING: Of the licence? 23 MR. WILLIAMS: Of the regulation, excuse 24 me. 25 MR. HANNON: 19(j)(ii). 5237 1 MR. WILLIAMS: Do you have that, Mr. 2 Hannon? 3 MR. HANNON: Yes. It starts with the 4 phrase "A brief description of the undertaking"? 5 MR. WILLIAMS: Yes, that's right, yes. 6 And I'll read it in. And I just would, at the end, 7 also get you to confirm that that's something that 8 would be expected to be included in an interim 9 licence. 10 (j) and then (ii). 11 "A brief description of the 12 undertaking in respect of which such 13 final licence is to be issued 14 including the use which may be made of 15 the power or storage where the power 16 may be sold or delivered to or used by 17 other than the applicant. And if so, 18 the territory with which such sale, 19 delivery or transfer of the right of 20 use may be exercised." 21 And my understanding would be, and I'd 22 ask you to confirm, that that would also be something 23 which would be addressed in terms of an interim 24 licence; is that correct? 25 MR. HANNON: Yeah. Section 19, the whole 5238 1 section 19 as you can imagine it, since you're 2 quoting from (J), there's a fairly long list of 3 things, deals with things that are in an interim 4 licence. And it says that every interim licence for 5 the development of a water power or storage 6 undertaking under this regulation shall set out 7 particulars and lay down requirements insofar as 8 applicable to the case with respect to the following 9 matters. So those items would be included insofar as 10 applicable to the case. 11 MR. WILLIAMS: Okay. And I take it you 12 don't -- I am again referring to the Churchill River 13 Diversion, and I wonder if you would accept, subject 14 to check, that the regulation in effect at that point 15 in time was Manitoba Regulation 95, Manitoba Water 16 Power Regulation pursuant to the Water Power Act? 17 Would you accept that subject to check? 18 MR. HANNON: I think we would accept that 19 subject to check. 20 MR. WILLIAMS: Okay. And would you also 21 accept, subject to check, that a similar provision 22 existed in the interim licensing procedure requiring 23 a brief description of where power may be sold or 24 delivered to or used by other than the applicant? 25 And if so, the territory within with such sale, 5239 1 delivery or transfer may be exercised? 2 MR. HANNON: I think we would accept 3 that, again subject to check. As I said earlier, 4 there haven't been many amendments made to the 5 regulation. So I haven't checked all of them. But I 6 certainly would accept that subject to check. 7 MR. WILLIAMS: And why I'm asking this, 8 Mr. Topping and Mr. Hannon and through you to the 9 panel is that I want you to assist me in 10 understanding the initial application and the interim 11 licence of May 11, 1993 in terms of the subjects. 12 And I've taken the liberty of providing -- 13 MR. HANNON: 1973. 14 MR. WILLIAMS: 1973, excuse me. I've 15 taken the liberty of providing you with the 16 application submitted by Manitoba Hydro to the Water 17 Powers Branch at that time. And that application is 18 dated the 30th day of April 1973. 19 Mr. Chair, I do have copies if the panel 20 becomes interested. I don't want to hand them out if 21 I'm not twigging your interest or mine. 22 And I'd ask you to turn to the very last 23 page of that application. And do you have that, Mr. 24 Hannon and Mr. Topping? 25 MR. HANNON: Yes. Yes, we do. 5240 1 MR. WILLIAMS: And I am referring to the 2 application, not the licence. 3 MR. HANNON: Yeah. 4 MR. WILLIAMS: Okay. And you'll see that 5 it provides that, 6 "The construction of the diversion for 7 which the licence is required would be 8 for the purpose of increasing the firm 9 power which could be generated at the 10 Kettle generating station and future 11 plant stations on the Nelson River and 12 on the Rat River and the Burntwood 13 River. The additional firm power will 14 be used to meet the rapidly increasing 15 power demand in Manitoba. This firm 16 power will also minimize the use of 17 costly coal-fired energy generation." 18 Can you confirm that I have read that 19 correctly? 20 MR. TOPPING: Yes, we can. 21 MR. WILLIAMS: So just from my 22 understanding, it appears that at the time the 23 application was made, the purpose of the poundage and 24 impoundage and diversion in terms of the South Indian 25 Lake was for domestic purposes at that time, would 5241 1 that be fair, based upon that application? 2 MR. HANNON: Well, I think, you know, you 3 read it into the record and it probably speaks for 4 itself better than either Mr. Topping's or my 5 interpretation of what that means. 6 MR. WILLIAMS: Okay. And again, I've 7 taken again over the break of providing you with an 8 excerpt from an Act respecting the provincial water 9 powers, the legislation from 1973. Do you have that, 10 Mr. Topping and Mr. Hannon? 11 MR. HANNON: Yes, we do and we thank you 12 for providing that to us. 13 MR. WILLIAMS: And you'll see that 14 section 7.3 provides that, 15 This shall be implied in every... 16 and I am going to paraphrase here, 17 ...in every licence granted by the 18 Crown under this Act or regulation for 19 any interest in water, power, land 20 required or necessary for the 21 creation, protection or development 22 thereof in addition to such other 23 provisions as are contained in the 24 regulations or in the conditions under 25 which the licence was disposed of. A 5242 1 provision binding the permittee, 2 licensee or lessee that no power 3 generated in Manitoba from any 4 provincial water power shall be 5 exported across the international 6 boundary. 7 Did I paraphrase that roughly correctly, 8 Mr. Hannon? 9 MR. HANNON: I thought you read it 10 exactly correctly. 11 MR. WILLIAMS: Well that's even better. 12 And so I guess the question then becomes, and again 13 this is to assist my client in their final argument, 14 at the time the application was filed, it appears 15 that the purpose was for domestic use. At the time 16 the legislation at that time expressly made it a 17 condition of the licence that it wasn't for export. 18 And I guess the question is has Manitoba Hydro come 19 to the water branch since that point in time to amend 20 the licence? And I think you know the answer to 21 this. 22 MR. HANNON: Well, I don't know if 23 Manitoba Hydro has come to amend the licence but I 24 can say that the licence itself has not, on its 25 terms, been amended since 1973 except insofar as the 5243 1 Augmented Flow Program applies annually. 2 You were, Mr. Williams, kind enough to 3 identify that in 1980, that provision about exporting 4 power across the international boundary was repealed. 5 And so consequently, at that time, that implied 6 condition in the licence, it was also in our view 7 repealed. 8 MR. WILLIAMS: And I guess my question to 9 you, Mr. Topping, and if I were, which I'm not, a 10 smart lawyer representing someone who is interested 11 in challenging the Churchill River Diversion, at the 12 time in 1973, you were told, according to the 13 application, that it wasn't for the export power. In 14 fact, that couldn't even be contemplated at the time. 15 So it's never been before the Water Power Branch 16 considering whether or not that licence should be 17 amended. 18 And I wonder if you would deem it prudent 19 or appropriate to look at the licence in that context 20 and perhaps clarify that it is for the purposes of 21 domestic and for the purposes of export? 22 MR. HANNON: Well, I think our view is 23 that the licence speaks for itself in accordance with 24 the legislative framework. And so whereas there was, 25 presumably before 1980, this implied provision that 5244 1 isn't there now, and so the licence speaks for itself 2 on its terms. 3 And indeed, the effect of the decision of 4 the legislature to repeal that provision in 1980 was 5 to presumably say that the legislature no longer 6 considered that as a requirement for specific 7 licences. 8 MR. WILLIAMS: So you are not concerned 9 in any way whatsoever that the licences currently 10 constituted might be vulnerable on those grounds? 11 MR. HANNON: I don't think we'd offer an 12 opinion on that. But the licence is there and it, we 13 think, speaks for itself. 14 MR. WILLIAMS: Thank you, Mr. Chairman. 15 Those are my questions. 16 THE CHAIRMAN: Thank you, Mr. Williams. 17 Other questions? Yes, Mr. Hannon? 18 MR. HANNON: Mr. Chair, may I add in 19 response to a question before the break, direct the 20 panel to section 81 and following of the Water Power 21 Regulation which deals specifically with enforcement 22 of the water power licences. And I won't read it in. 23 It's actually quite lengthy. But it does set out a 24 process providing for penalties for default by a 25 licensee which includes, among other things, a 5245 1 reference of matters to court. And so it's spelled 2 out in some detail over about two pages of the 3 regulation. 4 THE CHAIRMAN: And that has been in force 5 since? 6 MR. HANNON: As far as I'm aware, since 7 before the Lake Winnipeg Regulation and Churchill 8 River Diversion licences were in place. So I don't 9 believe there's been an amendment to those. 10 THE CHAIRMAN: Thank you. Yes, we have 11 some more questions. Would you identify yourselves, 12 please, and proceed. 13 MS. TEILLET: My name is Jean Teillet. 14 I'm here, legal counsel, representing the Manitoba 15 Metis Federation. And with me, I have Dan Benoit. 16 I just wanted to start by thanking the 17 panel for the questions earlier that sort of helped 18 to clarify the legal situation here, but I have a few 19 more. 20 Can you tell me, either Mr. Topping or 21 Mr. Hannon, when the actual split happened where the 22 Department of Water Stewardship was actually set up? 23 MR. TOPPING: I believe it was last fall, 24 2003. 25 MS. TEILLET: November or something like 5246 1 that? 2 MR. TOPPING: Yeah, November. 3 MS. TEILLET: I don't need an exact date. 4 So in other words, this process though was well under 5 way. This environmental assessment was well under 6 way when the split happened between the departments? 7 MR. TOPPING: Yes, it was initiated at 8 that time under the Department of Conservation. 9 MS. TEILLET: Right. And at that time, 10 when this environmental assessment process began, 11 this harmonized process, the Minister of Conservation 12 had responsibility under the Water Power Act, under 13 the Environment Act and under the Sustainable 14 Development Act and the Water Rights Act? That was 15 all under Conservation at that time; is that correct? 16 MR. TOPPING: That is correct, yes. 17 MS. TEILLET: And now, who's got what? 18 Where does the sustainable -- like is it a neat split 19 or is there overlap? 20 MR. TOPPING: The Water Stewardship has 21 the Water Power Act and the Water Rights Act. 22 MS. TEILLET: Yes? 23 MR. TOPPING: The Sustainable Development 24 Act and the Environment Act still reside with 25 Conservation. 5247 1 MS. TEILLET: And maybe the second half 2 of my question, is it a neat split or are there 3 overlapping responsibilities? 4 MR. TOPPING: No, there are no 5 overlapping responsibilities in the administration of 6 those Acts. 7 MS. TEILLET: Okay. Thanks for 8 clarifying that. So what was known before as the 9 Water Branch under Manitoba Conservation, is that in 10 Water Stewardship now? 11 MR. TOPPING: That is now wholly within 12 Water Stewardship. 13 MS. TEILLET: Now, my understanding also 14 was that Manitoba Conservation had the authority for 15 consultation. The Section 35 consultation was under 16 Manitoba Conservation when this all began? 17 MR. TOPPING: That's correct. It was 18 felt that actually the Water Branch under the Water 19 Power Act was likely the trigger for Aboriginal 20 consultations as it was allocation on the resource. 21 MS. TEILLET: And now that there's this 22 split, how did the responsibility get split? Is the 23 consultation still being handled by Conservation or 24 do you have some authority or is it overlapped? 25 MR. TOPPING: Water Stewardship has the 5248 1 line responsibility in the Aboriginal consultations. 2 It is directed by a multi-departmental steering 3 committee and also in partnership with the Department 4 of Fisheries and Oceans. So Conservation still sits 5 on the Wuskwatim Aboriginal consultations steering 6 committee. 7 MS. TEILLET: So Water Stewardship is on 8 it as well? 9 MR. TOPPING: Water Stewardship co-chairs 10 it with the Department of Fisheries and Oceans. 11 MS. TEILLET: And are you yourself 12 directly involved in it? 13 MR. TOPPING: Actually I'm the co-chair 14 for Water Stewardship. 15 MS. TEILLET: I just wanted to make sure 16 we were all still on the right information here. So 17 you are the co-chair and responsible for implementing 18 the policy that had been developed or were you 19 responsible for also developing the consultation 20 policy? 21 MR. TOPPING: Well, more in the process 22 and how the government was going to conduct 23 meaningful consultations with Aboriginal peoples. 24 MS. TEILLET: And so are you able to 25 speak to that process? 5249 1 MR. TOPPING: To the best of my ability. 2 MS. TEILLET: Thank you. Okay. Now, my 3 understanding is that I understand that you are in 4 Water Stewardship now but you were in Conservation? 5 MR. TOPPING: Sure was. 6 MS. TEILLET: So you can speak a little 7 bit about the, I hope -- I am going to ask you 8 anyway. Can you speak to the administration of 9 the -- maybe I'll quit my little introduction and get 10 right to the meat here. I was actually thinking that 11 Mr. Williams was talking about snappers and I thought 12 we were getting into fish jokes and I'll try not to 13 flounder around here. 14 MR. TOPPING: No red herrings. 15 MS. TEILLET: I'll keep it all to scale, 16 right. Okay. The Environment Act talks, one of the 17 terms and conditions of getting a licence under the 18 Environment Act is that they have to identify and 19 address, and I'll quote, "potential effects of the 20 development"? 21 MR. TOPPING: You were saying that's 22 under the Environment Act? 23 MS. TEILLET: Yes, that's my 24 understanding, is that that's one of the terms and 25 conditions of the Environment Act. And it's to 5250 1 identify and address -- in order to they apply for a 2 Licence under the Environment Act -- 3 MR. TOPPING: Yeah. 4 MS. TEILLET: -- they have to identify 5 and address potential effects. And my understanding 6 of the Clean Environment Commission, which is also 7 created under the Environment Act, as I understand 8 it, they are to consider potential environmental, 9 socioeconomic and cultural effects of the 10 construction and operation of these proposals. And 11 so I'm wondering if you can help me. And I don't 12 know if you are the right person even to ask this 13 question. But is there a difference between the 14 potential effects under the Environment Act and the 15 potential environmental socioeconomic and cultural 16 effects that the CEC? Are they considered separate 17 and distinct inquiries or is what they are doing the 18 same as what you are doing? I'm trying to figure out 19 how the process works. 20 MR. TOPPING: Well firstly, Heather 21 Leonoff did quite a detailed presentation on the 22 section 35 and the subsequent Court of Queen's Bench 23 court cases that have directed or actually set up the 24 requirement for consultations of First Nations and 25 Aboriginal peoples. The Province of Manitoba has 5251 1 decided that, yes, they are two separate processes. 2 In fact, it's a government-to-government consultation 3 regarding in which we are seeking to -- the 4 objectives of the consultation is to get 5 clarification from Aboriginal peoples as to what the 6 impacts of the proposed project would be on their 7 potential Aboriginal or treaty rights. 8 As I say, it is a 9 government-to-government consultation and we do see 10 that as a separate process as it is an allocation of 11 the resource which could have impacts on the 12 traditional use of lands and the waters. 13 MS. TEILLET: I guess I thought I heard 14 you say earlier that Hydro, the proponent or part of 15 the proponents here, they've prepared their 16 Environmental Impact Statement and this hearing is 17 happening now, a public hearing. And I thought I 18 understood you to say that Hydro is then going to 19 prepare another report that will go, after all of 20 this, to the Minister. Was I correct in 21 understanding what you said? 22 MR. TOPPING: That relates meeting the 23 requirements of satisfying an interim licence under 24 the Water Power Act. 25 MS. TEILLET: Right. But I mean this 5252 1 whole process is in aid of them getting their interim 2 licence; is that not correct? I mean that's the 3 whole point of the environmental assessment? 4 MR. TOPPING: No, it's a separate process 5 under separate statute. The Water Power Act is a 6 separate statute from the Environment Act. 7 MS. TEILLET: Okay. I do understand 8 that. But there are several licences that are going 9 to be issued here, right? I think you said there's a 10 licence under the Water Power Act and licence under 11 the Water Rights Act and a licence under the 12 Environment Act. All of those licences and probably 13 multiple permits for everything from building the 14 roads to sewage disposal and all kinds of things like 15 that. That's right, isn't it? Lots and lots of 16 authorizations? 17 MR. TOPPING: There are a number of 18 licences. 19 MS. TEILLET: Right. 20 MR. TOPPING: But the information 21 generated through this process will contribute to 22 part of the information required in meeting the other 23 licences. 24 MS. TEILLET: But I guess what I'm trying 25 to get at is there's going to be adaptations made to 5253 1 the licence or the -- you said they have just, I 2 thought you said May 6th, so last week they applied 3 for their interim -- 4 MR. TOPPING: No, no, 2003. 5 MS. TEILLET: So they have applied for 6 their licence already. And that application I assume 7 is on the record? 8 MR. TOPPING: It's a public -- 9 MS. TEILLET: It's a public document 10 anyway. And so you are saying that's not the subject 11 of this review. Is there an application for an 12 interim or a licence under the Environment Act that 13 is already in place? 14 MR. HANNON: Is there a licence under the 15 Environment Act? 16 MS. TEILLET: Or an application for one 17 in place? 18 MR. HANNON: Yes. 19 MS. TEILLET: And that is what the CEC is 20 looking at? 21 MR. HANNON: Right. 22 MS. TEILLET: Not the licence application 23 that you are talking about? 24 MR. HANNON: That's right. 25 MR. TOPPING: That's correct. 5254 1 MS. TEILLET: Okay. And the 2 consultations that you do for the application for the 3 Environment Act licence and the consultations you do 4 for the Water Power licence and the consultations for 5 the Water Rights licence, those are being handled by 6 this joint committee or are they -- 7 MR. HANNON: That consultation really 8 relates only to the application for the Water Power 9 licence, not the Environment Act licence. And nor is 10 there any particular Water Rights Act licence. 11 MS. TEILLET: I thought you said there 12 was a Water Rights Act licence for the construction 13 of the project? I thought -- 14 MR. TOPPING: For the construction camp, 15 to withdraw the water for the functions at the 16 construction camp. 17 MS. TEILLET: So that's sort of small 18 potatoes? 19 MR. TOPPING: Very small. 20 MS. TEILLET: Okay. And I'm sorry, Mr. 21 Hannon. Can you just clarify that for me? Are you 22 saying the consultation is with respect to the Water 23 Power licence, not with respect to the Environment 24 Act licence? 25 MR. HANNON: That's correct. 5255 1 MS. TEILLET: Is that correct? 2 MR. HANNON: Yes, that's correct, yes. 3 And Mr. Topping points out and related to 4 applications for Crown land authorization, 5 particularly associated with the transmission line. 6 MS. TEILLET: And can you explain to me 7 what the reasoning is behind that because I'm just 8 not clear on why. 9 MR. HANNON: Well, the reasoning is that 10 the view that Manitoba Water Stewardship and the 11 Government of Manitoba have taken is that the 12 application for Water Power licence is directed to 13 the Crown. And the Crown makes a decision in 14 accordance with the Water Power Act and regulations 15 to grant the right to use Crown lands, waters and 16 water powers associated with the Water Power 17 undertaking. And that that decision by the Crown, if 18 the Crown chooses to make it, could potentially have 19 an impact on Aboriginal rights or Treaty rights of 20 Aboriginal communities. And the decision was made 21 that it would be a good practice to start a 22 consultation process with communities that might be 23 affected. 24 MS. TEILLET: So it's sort of the, if we 25 could put it this way, the hardware, more or less the 5256 1 land and the water? 2 MR. HANNON: That's right. 3 MS. TEILLET: Not the environmental 4 effects on those land and water? 5 MR. HANNON: It's the decision relating 6 to the allocation of the land and the water. If 7 there are environmental effects or impacts resulting 8 from the allocation, from the fact that a proponent 9 may be getting an allocation, that those matters 10 would be considered in the consultation with the 11 Aboriginal communities. But that is by the 12 Government, by the Crown with the Aboriginal 13 community as opposed to this process which deals 14 generally with environmental impacts including 15 socioeconomic impacts as it relates broadly to all 16 communities, including Aboriginal communities but not 17 only Aboriginal communities. 18 MS. TEILLET: Thank you for clarifying 19 the reasoning. That's been a bit of a mystery. 20 Now, so the sufficiency of the 21 Environmental Impact Statement from the -- you are 22 speaking about the water licence now, application. 23 The sufficiency of that with respect to the 24 consultation under that and whether the EIS actually 25 meets the requirements, is that a part of your 5257 1 consideration or is that you don't consider that 2 Hydro itself has that responsibility? I'm not sure 3 if I asked that clearly or not. 4 MR. TOPPING: Well, I do -- any 5 recommendations or terms and conditions that are put 6 on the Environment Act licence may go towards some of 7 the mitigation measures that may satisfy the impacts 8 to Aboriginal communities that could be impacted by 9 the project. So that would be part of the 10 consideration for mitigation of those impacts. 11 MS. TEILLET: I guess what I'm trying to 12 figure out is does your department have any or 13 consider itself to have any responsibility to 14 determine the deficiencies in the EIS with respect to 15 consultation? Or you don't look at what they've said 16 at all, you're carrying out your own program and 17 consultations? 18 MR. HANNON: The EIS can be a useful tool 19 to provide information to the participants to the 20 consultation process. The consultation process, 21 though, is not designed to evaluate the completeness 22 or effectiveness of the EIS. 23 MS. TEILLET: Okay. 24 MR. HANNON: So if there are deficiencies 25 and Aboriginal communities said there were 5258 1 deficiencies or perhaps through some other process 2 there were deficiencies, that presumably could be 3 considered. But that's not the objective of the 4 consultation process. The objective is, as I 5 understand it, to hear from Aboriginal communities, 6 to understand and document their concerns and 7 interests about the project and to take those 8 concerns into account in making decisions on the 9 Water Power and Crown land licensing applications. 10 MS. TEILLET: Just before I forget, I 11 just wanted to follow up on one question earlier 12 about the Churchill River Diversion licences. I 13 thought I understood you to say that Hydro has 14 indicated to you that they are going to apply for a 15 final licence after the Wuskwatim project. I'm just 16 curious why Wuskwatim? Why not Conawapa? Why not 17 the ones before? Do you have any idea what that's 18 all about? 19 MR. TOPPING: No, I do not have that, 20 the rationale of their -- of that statement. I 21 should say I do not have the rationale of why Hydro 22 is not applying until after the Wuskwatim process is 23 completed. 24 MS. TEILLET: Is there anything in your 25 law or regulations here that says that you cannot 5259 1 issue another licence to the same proponent when they 2 have outstanding obligations on previous licences? 3 Do you have anything like that? 4 MR. HANNON: Not that I am aware of, no. 5 MS. TEILLET: There's no policy, no law, 6 no regulation with that respect? So theoretically, a 7 proponent could keep applying for a million licences 8 and never fulfil the terms of any of them? 9 MR. HANNON: Well, we deal with reality 10 in terms of what's actually been applied for and the 11 requirements to meet regulatory and licence 12 conditions. So I'm not sure the hypothetical of a 13 million. I know there aren't a million licences. 14 MS. TEILLET: That may be true but it has 15 been 31 years. And you have issued more licences to 16 Hydro since the CRD? 17 MR. HANNON: There have been some 18 licences since 1973. 19 MR. TOPPING: It's beyond most of the 20 corporate history here. 21 MS. TEILLET: It's hard to go back 31 22 years even though some of us remember that. 23 Now, with respect to the consultation 24 with First Nation and Aboriginal communities, Mr. 25 Topping, my understanding from the previous testimony 5260 1 from Ms. Leonoff was that there was a decision made 2 by the Government of Manitoba to consult with 3 communities, what they called Aboriginal communities 4 and with First Nations and then with sort of other 5 publics or other interested bodies and you kind of 6 broke things down in that way. Is that a fair 7 assessment of what your understanding of how it was 8 broken down? 9 MR. TOPPING: Yeah, the intent of the 10 consultation is the target group is with Aboriginal 11 communities. 12 MS. TEILLET: And you see that as a 13 separate and -- a separate obligation from consulting 14 with the public at large? 15 MR. HANNON: Yes. 16 MR. TOPPING: Yes, we do. 17 MS. TEILLET: And the decision was made, 18 as I understand it, to consult with mayor and council 19 in these Aboriginal communities that are not on 20 reserve; is that correct? 21 MR. HANNON: My understanding is that the 22 decision was made to initiate contact as part of the 23 consultation process with the councils of non First 24 Nation communities in the area of the project. And 25 that once the contact is made, then that will assist 5261 1 in developing a consultation plan for that community. 2 MS. TEILLET: And as I understand it, 3 you're not finished with your consultation process; 4 is that true? 5 MR. TOPPING: Ms. Leonoff identified a 6 three-stage process. I won't go into detail but 7 we're in the middle of stage 2. 8 MS. TEILLET: And is the consultation 9 team or your committee open to changing and/or adding 10 to and adapting your consultation process as you move 11 through the process? 12 MR. HANNON: My understanding is that, 13 and this is happening for communities as I understand 14 it, is that a consultation plan is developed for 15 those communities. That includes a consideration of 16 how and which people should be involved in the 17 consultation process for the community as determined 18 by the community. And so they won't all be the same. 19 It depends on the community and what the interests 20 are in the community. 21 MS. TEILLET: And I understood Ms. 22 Leonoff to say that a decision had been made not to 23 consult with the Manitoba Metis Federation on the 24 provincial level. But she was I think -- I'm not 25 sure whether she was unwilling or she didn't actually 5262 1 answer the question of whether Manitoba Metis locals, 2 Metis Federation locals had been contacted. So could 3 you answer that question for me? I think we were 4 directed to ask you whether your team who was 5 actually implementing the consultation, have you 6 directly contacted the Manitoba Metis Federation 7 locals in the project area? 8 MR. TOPPING: Firstly, the province chose 9 to consult on a community basis. We have copied 10 correspondence to the Manitoba Metis Federation on 11 all pertinent correspondence on the activities of the 12 consultation process. If the community wishes 13 representation by MMF, we would invite that at the 14 local level. But it's the community's discretion in 15 terms of the communication protocol that's set up as 16 to how we will consult with that community and in the 17 manner we will consult with them. That's set up in 18 the communication protocol. 19 And to date under stage 2, a number of 20 the consultations we have had, MMF locals have been 21 at the consultations. 22 MS. TEILLET: Could you tell me where 23 that is? 24 MR. TOPPING: I can't give you a 25 precise -- 5263 1 MS. TEILLET: Could you undertake to 2 provide that information to us? 3 MR. TOPPING: I think I can, yes. 4 MS. TEILLET: Thank you. 5 6 (UNDERTAKING MC-77: Provide information regarding 7 MMF locals being present at consultations to date 8 under stage 2) 9 10 MS. TEILLET: And by that, when you say 11 the locals were there, do you mean that maybe a 12 member of the local was there or that say the local 13 was there and made a presentation? 14 MR. TOPPING: I understood that one of 15 the councils, Band councils had an MMF -- one of the 16 councils had an MMF representative on it. Probably a 17 Northern Affairs council actually. 18 MS. TEILLET: They had one member of the 19 MMF who was -- so one person who lived in that 20 community? 21 MR. TOPPING: I'll undertake to get 22 further details on that. 23 MS. TEILLET: Okay. But just to clarify, 24 would you consider that consultation with the 25 Manitoba Metis Federation if there was one Metis 5264 1 person who was sitting on that community council? 2 Would you consider that consultation with the Metis 3 community? 4 MR. TOPPING: Well, individuals in the 5 community can express their concerns of the project. 6 And as I say, the protocol sets out their ability to 7 engage in the consultation. 8 MS. TEILLET: If there was an off-reserve 9 Status Indian on the council, would you consider that 10 consultation with the First Nation? 11 MR. HANNON: I think our approach has 12 been to consult with communities. And so the issue 13 is is this an appropriate consultation with the 14 community and that's why a consultation plan has 15 developed involving community response. So the First 16 Nation being identified communities that are 17 consulted with and practice is to deal with the 18 council of the First Nation and again a plan devised 19 as to how to conduct the consultation. 20 MS. TEILLET: And so community for you is 21 defined as a geographic community. 22 MR. HANNON: Yes. 23 MS. TEILLET: And equates to sort of the 24 Northern Affairs communities? 25 MR. HANNON: We've contacted, as I 5265 1 understand, the Northern Affairs community as a 2 method of initiating the local community consultation 3 associated with the project. 4 MS. TEILLET: And if the information were 5 to come to this committee that is handling the 6 consultation, that a community might not necessarily 7 coincide with the geographic community, would you be 8 willing to consult with a community on another basis 9 other than the geographic community? 10 MR. TOPPING: You'd have to give us the 11 specifics of that. 12 MS. TEILLET: For example, I think the 13 position that the Manitoba Metis Federation is trying 14 to get people to understand is that their communities 15 don't coincide with the Northern Affairs communities 16 and that those mayor and council don't represent 17 them. So they've been at their suggestion or their 18 demand that consultation happening with the MMF is in 19 order to take in the idea that their communities are 20 not represented by mayor and council and that they 21 are not necessarily a geographically succinct 22 community. They may be a community in a broader 23 sense than is represented and that maybe that kind of 24 consultation that's limited to those geographic 25 communities isn't capturing the ball necessarily. 5266 1 And I think that's what they are putting forward. So 2 that's what we're talking about, is are you open to 3 consulting on another level. In other words, flat 4 out, will you consult with the Manitoba Metis 5 Federation locals? 6 MR. TOPPING: Yeah, I hear what you're 7 saying but we have a process in place in which the 8 Province, the Government of Manitoba is consulting on 9 a community basis. 10 MS. TEILLET: I have here a copy of a 11 Hansard from I believe it's the 11th of April where 12 Premier Doer says, and I am quoting him, 13 "We have been consulting with the 14 Metis Federation." 15 He says it more than once. And he goes on to say, 16 "Our ministers have had full 17 consultations with the Metis 18 Federation." 19 And yet what I'm hearing you say and I also heard Ms. 20 Leonoff say sort of seems to contradict that. 21 MR. SARGEANT: Ms. Teillet, is that in 22 respect of the Wuskwatim hearings that he says that? 23 MS. TEILLET: Yes, I'm sorry. I should 24 have said that, Mr. Sargeant. I am sorry. The topic 25 at the top is "Consultations Manitoba Metis 5267 1 Federation, Wuskwatim Dam." 2 MR. SARGEANT: Thank you. 3 MS. TEILLET: And I would be happy to put 4 this into the record. I only have one copy right now 5 but we'll be happy to supply this copy for you. So I 6 wonder if you can -- that's part of the problem we're 7 having, is that what Ms. Leonoff said was a decision 8 had been made not to consult with the Manitoba Metis 9 Federation. I hear you saying the same thing and yet 10 your Premier is standing up in the House and saying 11 something entirely different. I wonder if you could 12 explain that to us? 13 MR. HANNON: I would question the premise 14 that there has been a decision not to consult with 15 the Manitoba Metis Federation. I think what we've 16 said is there's been a decision to initiate contact 17 with local communities through the community council. 18 That's not the same thing, I don't think, of saying 19 there isn't consultation with the Manitoba Metis 20 Federation. 21 And if, through the process, the 22 consultation plan involved the Metis Federation, if 23 the local community thought it was appropriate, then 24 that specific community consultation plan could 25 include the Manitoba Metis Federation. I think Mr. 5268 1 Topping said that. 2 So I'm not sure we can accept the premise 3 that there's a decision to exclude the Manitoba Metis 4 Federation but rather that the consultation is 5 initiated at a local community level because of the 6 note and concern that the rights and interests that 7 we're dealing with are community interests. 8 And, you know, clearly if the Manitoba 9 Metis Federation is requested, for example, by a 10 community that it could well have an important role 11 in a particular consultation plan. 12 MS. TEILLET: Could you undertake to tell 13 us the communities where mayor and council have 14 invited the Manitoba Metis Federation to consult? 15 MR. HANNON: I believe Mr. Topping 16 already had provided an undertaking to provide -- 17 MS. TEILLET: Actually that was a 18 different question. That was asking where you had 19 consulted with Manitoba Metis Federation locals. Now 20 I'd like to ask you to provide information as to -- 21 you are saying to us that if the mayor and council 22 decide that they want to ask the Manitoba Metis 23 Federation to be consulted, then they can do that. 24 And I would like to know when that has happened, if 25 ever. And then the next part would be what if they 5269 1 have absolutely no interest in hearing from the 2 Manitoba Metis Federation regardless of the fact that 3 there is a Metis community there? So you've set up a 4 gatekeeper in your section 35 consultation process 5 and I'd like to know how you will deal with that. 6 MR. HANNON: I don't think we can answer 7 that as a hypothetical. We can provide information 8 on a specific basis if there is a -- if you're 9 looking for specific examples of where the MMF has 10 been invited, we can undertake to provide whatever 11 information we have. 12 MS. TEILLET: Well, what our 13 understanding is right now is that they have not been 14 invited anywhere. And so what we're asking and the 15 Manitoba Metis Federation has made it very clear in 16 written letters to you and into this Commission that 17 they are not being asked to be consulted with, that 18 they are not being spoken to as locals or at any 19 level. And so I guess what we're asking you is do 20 you have a plan for how you're going to deal with 21 that or are you going to maintain the stance that 22 unless the councils ask, then you're not going to act 23 or -- 24 MR. TOPPING: Many of these communities 25 have substantial Metis populations and membership to 5270 1 MMF. So there is a large degree of consultation with 2 the Metis population. 3 MS. TEILLET: Can I ask you where you get 4 your numbers from with respect to those communities 5 where you say that many of them have substantial 6 Metis populations? 7 MR. TOPPING: As you can tell, I wasn't 8 specific as to numbers of that sort, so. 9 MS. TEILLET: Because I guess what I'm 10 being told by my client is that in fact, the Metis in 11 many of these communities are a considerable minority 12 group. And so there are issues about majoritarian 13 preferences that may be acting to exclude an 14 Aboriginal -- I know Aboriginal people in general are 15 a minority but the Metis in particular are a minority 16 of a minority in many of the communities. And so 17 have you considered the fact that you may be 18 excluding people based on majoritarian preferences? 19 MR. TOPPING: We're not excluding any 20 concerns or interests raised by any party. 21 MS. TEILLET: You don't regard the 22 setting up the mayor and council as the gatekeeper as 23 exclusion? 24 MR. HANNON: It's your characterization, 25 not ours, of the process. We've said that they are 5271 1 the contact points and that a consultation plan would 2 be developed. And I don't think we are in a position 3 to discuss hypotheticals or how the government is 4 going to continue with the process that is a 5 continuing process right here in this forum. I think 6 we've heard concerns expressed in the form of 7 questions and the process is continuing but I don't 8 think we're in a position to describe how the 9 province will deal with things that may happen in the 10 consultation process. 11 MS. TEILLET: I guess what we're saying 12 to you is that this isn't hypothetical. You've had 13 letters informing you the Manitoba Metis Federation 14 has gone public. And we're telling you again here at 15 the hearing, these are not hypotheticals, these are 16 facts on the ground. And so your process is ongoing. 17 And so we're informing you that you have a problem 18 and that you're not getting to the Metis community. 19 And so I guess we're asking whether you will take 20 that into consideration and contact the Manitoba 21 Metis Federation? 22 MR. HANNON: I don't think we're in a 23 position to answer that question at the hearing. 24 THE CHAIRMAN: Okay. I will interrupt at 25 this point in time. You've had an opportunity to try 5272 1 and put forth your questions dealing with the section 2 32 consultation process. And as has been stated 3 clearly at the very beginning, our process is a 4 separate one. And I can appreciate that, and I am 5 not referring to the validity of your points of view 6 or at all, I'm just saying that it is not part of our 7 process. And because Mr. Topping was there, there 8 was an opportunity for you and co-chair, has stated 9 he was co-chair of the committee that is organizing 10 this process. I have allowed a number of questions 11 to go. I would hope that you would bring these 12 questions to an end because we're leading nowhere in 13 regards to the process we're involved in at this time 14 in regards to Wuskwatim. 15 And so I heard you ask questions in terms 16 of whether the co-chair of the committee and as part 17 of his role as co-chair of the committee will be 18 prepared to entertain some of the suggestions that 19 you've made. On the other hand, I've heard responses 20 to the effect that your characterization of the 21 process was not similar to their understanding. 22 There are avenues that I presume you can 23 pursue with the government and with the committee 24 outside of this particular process to push forward 25 your request in this regard. So I don't see the 5273 1 usefulness of proceeding. 2 MS. TEILLET: I was finished. I didn't 3 need the statement from you. I'm done. 4 THE CHAIRMAN: Well, that I did not know. 5 But also we did afford you the time to put your 6 questions. 7 MS. TEILLET: I do appreciate that and I 8 do appreciate the opportunity. We have no other 9 forum and we appreciate the fact that you've done 10 this. We know it's outside your mandate and we 11 really appreciate you giving us the time to ask 12 questions and we appreciate the answers. Thank you. 13 THE CHAIRMAN: All right. Other 14 questions? 15 MR. GREWAR: Mr. Chairman, I know that 16 the Community Association of South Indian Lake do 17 have some questions. Unfortunately, due to a 18 conflict, Mr. Dysart is not available until just 19 after the noon hour. So we've got about ten minutes. 20 I don't know if there's others that want to question 21 but we will need to make some time available just 22 immediately after lunch for CASIL if that's 23 acceptable? 24 THE CHAIRMAN: Others that may wish to 25 ask questions? Ms. Avery Kinew. 5274 1 MS. AVERY KINEW: Mr. Topping, on your 2 slide on page 9, you talk about the issuance of an 3 interim licence under the Water Power Act. The 4 decision to issue the licence may be considered after 5 concerns have been addressed through the regulatory 6 process. I just wondered in the diagram we have of 7 the regulatory process, I'd just like you to explain 8 what you mean by regulatory process. 9 And also you're not in the Project 10 Administration team, is that right, or the Water 11 Stewardship is not part of the TAC Technical Group, 12 the project administration team, the 13 federal/provincial? 14 MR. TOPPING: No, we are not. 15 MS. AVERY KINEW: So I just wonder what 16 regulatory process? 17 MR. TOPPING: We were talking to the 18 Environmental Act regulatory process. 19 MS. AVERY KINEW: That's what I'm 20 concerned about. If you are not involved, you're on 21 the side, how do you talk to each other? How do you 22 know what kind of conditions they might be 23 considering to put under a licence, and then 24 therefore, what kind you would? I know you are 25 controlled by your legislation. 5275 1 MR. TOPPING: The Water Power Act licence 2 will not be issued until the Environmental Act 3 licence is issued. 4 MS. AVERY KINEW: So is there any 5 consultation between your departments before that? 6 MR. TOPPING: Absolutely there is very 7 good interdepartmental communication and consultation 8 on this. 9 MS. AVERY KINEW: So you do know what the 10 project administration team and the technical team 11 are doing? Do they consult with you? 12 MR. TOPPING: At times, yes. 13 MS. AVERY KINEW: Yes. Okay, thanks. 14 THE CHAIRMAN: Mr. Bedford? 15 MR. BEDFORD: Mr. Topping, earlier this 16 morning in response to a question about independent 17 monitoring, you described something that you called 18 independent auditing. And you gave as an example, 19 something that took place on Lake Winnipeg. I 20 understand that the Government of Canada has placed 21 and maintains seven sites along the shores of Lake 22 Winnipeg where there is equipment which I generally 23 understand measures things like fluctuating water 24 level and shoreline erosion. Is that your 25 understanding? 5276 1 MR. TOPPING: More equipment related 2 water level. 3 MR. BEDFORD: And in addition, the 4 company that employs me, Manitoba Hydro, maintains 5 one site with similar equipment? 6 MR. TOPPING: Yes, a northern site. 7 MR. BEDFORD: And I understand that the 8 equipment generates data which data is given to 9 people with engineering training and they do 10 calculations and they draw conclusions from the 11 calculations primarily about the water levels of Lake 12 Winnipeg. Is that your understanding? 13 MR. TOPPING: Yes. What we call the wind 14 eliminated water levels on Lake Winnipeg. What would 15 be I guess the flat pool surface of the lake. 16 MR. BEDFORD: And when you described 17 earlier this morning independent auditing that was 18 done with respect to this equipment and the data that 19 it produces, I am told that as a result of a 20 provincial initiative, an independent body known as 21 the Lake Winnipeg shoreline erosion advisory group 22 retain the services of, among others, an engineer or 23 engineers who studied the data produced at these 24 eight sites, the Government of Canada ones and the 25 Manitoba Hydro one. They reviewed calculations being 5277 1 done, did their own calculations and compared them 2 with what was being reported to your branch. Have I 3 summarized correctly what took place? 4 MR. TOPPING: That is a correct 5 summarization. 6 MR. BEDFORD: And finally, I'm told with 7 respect to this independent audit, that the Lake 8 Winnipeg Shoreline Erosion Advisory Group determined 9 that there was no significant irregularities with 10 respect to the reporting that you were getting from 11 Manitoba Hydro with respect to these sites and Lake 12 Winnipeg and what it is we apparently all wish to 13 know monthly, weekly about Lake Winnipeg; is that 14 correct? 15 MR. TOPPING: That is correct, yes. 16 MR. BEDFORD: Now, are you able to agree 17 with me that this periodic process of an independent 18 audit, that we have just described in some detail, is 19 different from something that one might call 20 independent monitoring? 21 MR. TOPPING: An independent audit versus 22 an independent monitoring? Well, between Water 23 Survey of Canada and Manitoba Hydro, they had been 24 monitoring water levels, one particular parameter on 25 Lake Winnipeg over a number of years. And how that 5278 1 information was picked up was part of the audit also 2 and the accuracy of the reporting of that 3 information. I see that as a monitoring function 4 also. 5 MR. BEDFORD: Okay. The emphasis should 6 be placed earlier in the phrase. It's independent 7 and who does it that I think is of interest to some 8 people in the room this morning. So again, I put it 9 to you that a periodic review of data and 10 calculations that you described as an audit is 11 different than independent monitoring which I would 12 suggest to you is an independent agency. We could 13 call it the Lake Winnipeg Shoreline Erosion Advisory 14 Group every day or every week or every month 15 indefinitely studying the data and doing the 16 calculations coming from this equipment as opposed to 17 what I gather has been going on for years which is 18 that Manitoba Hydro, and as you say, an agency of the 19 Government of Canada has been doing that for years? 20 MR. TOPPING: That's correct, yeah, okay. 21 MR. BEDFORD: Are you suggesting or would 22 you agree that it would be appropriate for somebody 23 else other than Manitoba Hydro or the Government of 24 Canada to do that regular routine daily, weekly or 25 monthly work? 5279 1 MR. TOPPING: It would be a very costly 2 effort to have an independent consultant or agency do 3 the monitoring. As a check, we do look at the 4 standards in which Hydro does this monitoring. The 5 protocol, the operating protocol as set out in which 6 they pick up this information and their monitoring 7 program and the frequency of that monitoring, that 8 has been the manner in which we've checked Hydro's 9 results. 10 MR. BEDFORD: It would be unusual in your 11 experience in the job you've held for a number of 12 years to have an independent party do that monitoring 13 work? 14 MR. TOPPING: Based on my experience, I 15 cannot recall any situation where we've had an 16 independent body doing that work. 17 MR. BEDFORD: There was an implication 18 and a question put to you this morning which 19 implication may have been innocent or mischievous, I 20 don't know, that there is something deficient in one 21 or other of the interim licences that have been 22 issued by the Minister, to whom you report over the 23 years, to Manitoba Hydro. Is it your position today 24 that because some of the interim licences have not 25 gone through the process of becoming final licences, 5280 1 that by virtue of that fact, it means there are 2 deficiencies presently existing with respect to some 3 of the interim licences? 4 MR. TOPPING: Our opinion, those licences 5 are valid at present day and for continued operation. 6 MR. BEDFORD: Thank you. And finally, 7 we've noted that on a couple of occasions, you have 8 mentioned that the application for the interim water 9 licence or Water Power Act licence for Wuskwatim was 10 made on May 4, 2003. And people with better memories 11 than mine assure me it was June 4, 2003. 12 MR. TOPPING: Fair enough. 13 MR. BEDFORD: Do you stand corrected? 14 MR. TOPPING: I stand corrected. Let me 15 just check that. 16 MR. HANNON: It's 2003/06/04 which I will 17 assume is June 4th and not April 6th. 18 MR. TOPPING: Fair enough. 19 MR. BEDFORD: You were asked some 20 questions about the Augmented Flow Program at Missi 21 Falls. My recollection is that you may have, in 22 responding to one of those questions, indicated that 23 the annual review that the Minister does and other 24 agencies and departments that you have described for 25 us includes a review of the Missi Falls outflows. I 5281 1 understand that that is not the case and that the 2 minimum Missi Falls flows are specified in the CRD 3 interim licence and they aren't changed or reviewed 4 through this annual review of the Augmented Flow 5 Program approvals. Is what I've been told correct? 6 MR. TOPPING: Yeah, there is no reference 7 in the Augmented Flow Program as to minimum flows at 8 Missi. 9 MR. BEDFORD: Thank you. 10 MR. TOPPING: Thank you. 11 MR. BEDFORD: I am told that the flow 12 conditions specified in the Lower Churchill Weir 13 Environmental Licence however did make a reference to 14 the minimum outflows from Missi. Would that be your 15 understanding? 16 MR. TOPPING: I do recall that, yes, 17 that's correct. 18 MR. BEDFORD: Thank you. I have no 19 further questions. 20 THE CHAIRMAN: Thank you. Mr. Topping, 21 if I heard Mr. Bedford correctly, I believe Mr. 22 Bedford asked whether the review of the Missi Falls 23 instead of being reviewed by the department on an 24 annual basis was part of the annual request for the 25 augmented flow. And I thought that I had heard 5282 1 earlier in the EIS that the application for the 2 augmented flow on an annual basis basically consisted 3 of a letter written to the Minister. And I didn't 4 understand that part of that application included 5 details of the Missi Falls levels or whatnot. I 6 understood that the application basically was a 7 letter written to the Minister. So I don't know 8 which is which now? 9 MR. TOPPING: Well, the Augmented Flow 10 Program, Hydro makes annual application through a 11 letter to the Minister. I was incorrect in stating 12 it was Missi Falls. Minimum flows that were stated 13 in the Augmented Flow Program, in fact it's Notigi 14 that flows are allowed to be adjusted at. 15 THE CHAIRMAN: But with this application 16 on an annual basis for the augmented flow, does Hydro 17 send to the Department also information in regards to 18 the levels and flows and whatnot? 19 MR. TOPPING: Oh, yes. On a weekly 20 basis, Hydro provides Churchill River Diversion flow 21 rates and Lake Winnipeg flow rates and forecasted 22 operation regimes for those systems. They also 23 provide a monthly summary report. And this relates 24 to the Churchill River Diversion interim licence. 25 THE CHAIRMAN: Okay. It's perhaps my 5283 1 misunderstanding. Those are not necessarily part of 2 the letter which is for a request for the augmented 3 flow. They are periodic reporting that goes on all 4 the time? 5 MR. TOPPING: No, the letter doesn't talk 6 specifically to reporting requirements for the 7 Augmented Flow Program because it is covered off in 8 their reports on the Churchill River Diversion and 9 Lake Winnipeg Regulation. 10 THE CHAIRMAN: That's the way I 11 understood it before. It's just my misunderstanding 12 of what Mr. Bedford put on the record. 13 MR. TOPPING: There is a statement in the 14 authorization that monthly written reports on the 15 2003/2004 Augmented Flow Program be forwarded to the 16 Nelson House First Nation, Split Lake First Nation, 17 York Factory First Nation and affected communities. 18 THE CHAIRMAN: Thank you. Other 19 questions? 20 MS. BRUYERE: Caroline Bruyere, Elder of 21 Sagkeeng First Nation. Excuse me if I am repeating 22 somebody's question but I had to run to a doctor's 23 appointment. I was gone for a part of the session. 24 Anyway, I was wondering if anybody asked 25 this question. In the licensing process, is there 5284 1 any consideration taken on Aboriginal inherent and 2 treaty rights, its effect and impacts to the 3 Aboriginal and First Nations communities? 4 MR. TOPPING: Yes, that is the objective 5 of the consultations. 6 MS. BRUYERE: And my other question is 7 how do you interpret interim licence and long-term 8 licence or a permanent licence? Because to me, this 9 interim licence for Churchill River Diversion seems 10 to have been going on for years. 11 THE CHAIRMAN: Ms. Bruyere, you're going 12 to find that on the record. That was the essence of 13 quite a few of the questions at the very beginning of 14 this process, yes. 15 MS. BRUYERE: Okay, thank you. 16 THE CHAIRMAN: Thank you. Other than Mr. 17 Dysart then, I see this as perhaps no further 18 questions of Mr. Topping and Mr. Hannon. Are you 19 available for further questions right after from 20 CASIL? 21 MR. TOPPING: I'll make myself available. 22 THE CHAIRMAN: Thank you. At this point 23 in time, we will adjourn for lunch. We'll be back at 24 one o'clock. 25 5285 1 (PROCEEDINGS RECESSED AT 12:02 P.M.) 2 AND RECONVENED AT 1:00 P.M.) 3 4 5 THE CHAIRMAN: Ladies and gentlemen, 6 we will continue. Before we do, I wish to advise 7 that as far as I know there may not be that many 8 questions, but Mr. Topping has advised me that he 9 has got an urgent other commitment and has to be 10 out of here, I guess by the latest at quarter 11 after anyways, quarter after two. So we should be 12 finished well in time for that. 13 Ms. Phare for CASIL. 14 MS. PHARE: Thank you. I would like 15 to just start with a clarification about some of 16 the licencing regimes, in particular some of the 17 amendments to licences or -- I'm choosing my words 18 not all that carefully, because we will get to 19 what the proper word should be in a moment. 20 Am I correct, is it a correct 21 understanding that licence 2327, which is an 22 Environment Act licence dealing with the Churchill 23 Weir, has a provision in it that, in essence, 24 amends the Churchill River Diversion article 25 dealing with Missi Falls flows? Article 23 of 5286 1 Environment Act licence 2327, in my understanding 2 provides a flow regime term regarding Missi Falls 3 discharges. Is that correct? 4 MR. TOPPING: I don't believe it 5 relates to Missi Falls, I believe it relates to 6 flows at the weir, Churchill River weir. I would 7 have to do an undertaking to get clarification on 8 that. 9 MS. PHARE: I could read you the 10 article so you don't have to come back. Article 11 23 A says, 12 "The licensee shall at all times 13 following construction of the 14 development maintain releases from the 15 Missi Falls Control Structure on the 16 Churchill River Diversion such that 17 these flows are not less than those 18 maintained under the existing 19 Churchill River Diversion operation 20 flow regime for the period 1986 to the 21 date of this license." 22 MR. HANNON: It doesn't sound like a 23 change to the license. 24 MR. TOPPING: It sounds like it is 25 confirming the Churchill River Diversion on the 5287 1 Missi Falls flows. 2 MS. PHARE: It is your opinion then 3 that this clause in essence states that the flow 4 regime out of Missi Falls is that that was 5 provided by the Churchill River Diversion license? 6 MR. TOPPING: I mean, you have read 7 the conditions so -- I mean, it is what the -- I 8 mean, that condition speaks for itself. 9 MS. PHARE: Are you aware -- and I'm 10 sorry, I don't have the actual date of the 11 testimony -- that Manitoba Hydro has testified in 12 these hearings that the flow regime out of Missi 13 Falls right now is governed by this particular 14 license 2327, and that that modifies the Churchill 15 River Diversion requirements of 500 during the -- 16 500 cubic feet per second during the open water 17 period and 1,500 cubic feet per second during the 18 ice cover period. Are you familiar with any of 19 that testimony? 20 MR. TOPPING: No, I'm not familiar 21 with that testimony. 22 MS. PHARE: Who would I ask to find 23 out, within the Provincial Government, what the 24 flow rate is, the licensed flow rates are for 25 Missi Falls? 5288 1 MR. TOPPING: I can, as an 2 undertaking, find you this information and provide 3 it to you. 4 MS. PHARE: Okay. And would you be 5 available, or that person then be available for 6 questioning on that information when it comes 7 forward? 8 MR. TOPPING: We are just trying to 9 find the information on the license itself. 10 MS. PHARE: The provision in the 11 Churchill River Diversion license is article 12, 12 or section 12. 13 MR. TOPPING: I will read article 12 14 for you. 15 "Releases from the Missi Falls Control 16 Structure shall not be less than 500 17 cubic feet per second during the open 18 water period and 1,500 cubic feet per 19 second during the ice cover period. 20 Such greater releases as may be 21 required for the needs of downstream 22 interests shall be released, as 23 ordered by the Minister." 24 MS. PHARE: So is what you are stating 25 to me here today that that is the license regime 5289 1 governing discharges from Missi Falls Control 2 Structure as of today? 3 MR. TOPPING: I believe that's 4 correct. 5 MS. PHARE: How do you monitor that 6 those minimum flows are being maintained at Missi 7 Falls -- or is it environmental approvals that 8 does that, the Environmental Approvals Branch, 9 because I'm aware this is an Environment Act 10 license? 11 MR. TOPPING: Hydro provides a weekly 12 and monthly report on reported flows at various 13 locations. Missi Falls is an example. 14 MS. PHARE: And do they provide that 15 information to you in cubic feet per second? 16 MR. TOPPING: Metres cubed per second, 17 I believe. 18 MS. PHARE: How do you -- 19 MR. TOPPING: It is a simple 20 conversion. 21 MS. PHARE: Do you know what that 22 conversion is? 23 MR. TOPPING: I could work it out. 24 MS. PHARE: It might seem like a 25 strange line of questioning, but this is a matter 5290 1 of dispute in previous, in cross-examination of 2 Manitoba Hydro previously. 3 MR. TOPPING: I don't have that 4 conversion with me right here. 5 MS. PHARE: So what you do to ensure 6 that Manitoba Hydro is meeting their minimum flow 7 requirements from Missi Falls is what, you receive 8 monthly and weekly -- 9 MR. TOPPING: The monitoring -- they 10 provide monitoring at specific locations from 11 gauging stations, and that is reported to the 12 Director of Water. 13 MS. PHARE: And you review that 14 information? 15 MR. TOPPING: Yes, we do. 16 MS. PHARE: And you obviously do a 17 conversion, you convert it back to cubic feet per 18 second? 19 MR. TOPPING: Yes, we do check that it 20 is in compliance with the license. 21 MS. PHARE: So in your experience, has 22 there ever been a time when Manitoba Hydro has 23 gone below the 500 cubic feet per second or 1,500 24 cubic feet per second requirement of the CRD? 25 MR. TOPPING: Hydro usually provides 5291 1 us special notification when there are deviations 2 from the terms of the license. And I can't, from 3 my memory, I can't remember anything specific to 4 Missi Falls. 5 MS. PHARE: So you are not aware of 6 any, what you would call deviations from the 7 license? 8 MR. TOPPING: For Missi Falls? 9 MS. PHARE: Yes. 10 MR. TOPPING: From my memory, I can't 11 remember any specific deviations. 12 MS. PHARE: You would obviously then 13 be unable to characterize for us whether, in your 14 view, Manitoba Hydro is meeting the requirements 15 of the Missi Falls license regime on a regular 16 basis? 17 MR. TOPPING: Do you want that as an 18 undertaking? I can't make a valued decision on 19 that right now. 20 MS. PHARE: Okay. Sure, that would 21 be -- an undertaking would be fine. 22 23 (UNDERTAKING MWS-78: Advise position whether 24 Manitoba Hydro is meeting requirements of Missi 25 Falls licence regime on a regular basis) 5292 1 2 MS. PHARE: Is the Augmented Flow 3 Program annual approval, in your opinion, a 4 supplementary license under the Water Power 5 Regulations? 6 MR. HANNON: I think we answered that 7 question this morning, and Mr. Topping made 8 reference to a couple of provisions of the 9 regulation. 10 MS. PHARE: I think actually what you 11 said -- you can call it whatever you want -- I 12 don't think that you actually said whether you 13 consider it to be a supplementary license. 14 MR. HANNON: I think that was our 15 answer, that we pointed to the provisions of the 16 regulation dealing with amendments to the license. 17 MS. PHARE: So every year before 18 you -- so are you saying that every year then you 19 re-grant a supplementary license on the Augmented 20 Flow Program? 21 MR. HANNON: I am saying every year 22 there is an Augmented Flow Program authorized and 23 we say that those provisions of the regulation are 24 the basis for doing that. 25 MS. PHARE: Do you engage in a 5293 1 consultation with any of the potentially affected 2 communities prior to the decision each year? 3 MR. TOPPING: Yes, there is a 4 distribution list on Hydro's request for Augmented 5 Flow Program, and it is distributed to a number of 6 communities and agencies. 7 MS. PHARE: Do you contact the 8 community of South Indian Lake and ask them, prior 9 to granting that approval, for any input on, for 10 example, the potential impacts that that approval 11 might have on the community? 12 MR. TOPPING: I will check that out, 13 just hold on. 14 Mayor Gary Freeman from the community 15 of South Indian Lake is copied on this. 16 MS. PHARE: I'm not sure what you are 17 referring to. What document do you have? 18 MR. HANNON: This is a request for the 19 authorization of the deviation. 20 MS. PHARE: So that is a letter from 21 Manitoba Hydro? 22 MR. HANNON: From Manitoba Hydro. 23 MS. PHARE: I'm asking whether you 24 approach, as the Crown, the community of South 25 Indian Lake, and ask them if they have any 5294 1 concerns about the annual renewal each year, 2 whether you ask them each year about whether the 3 Augmented Flow Program may have impacts on them 4 prior to granting your approval? 5 MR. HANNON: I don't believe we do, 6 no. 7 MR. TOPPING: I don't believe that we 8 approach them, no. 9 MS. PHARE: Do you approach anybody 10 and ask them that question, any First Nations 11 community or Metis community that may be impacted 12 by that approval? 13 MR. TOPPING: No, we do not. 14 MS. PHARE: You had said earlier that 15 you receive a monthly -- well, I guess you said 16 weekly and monthly reports on the operation of the 17 CRD and the Augmented Flow Program, or was it just 18 the Augmented Flow Program, from the Manitoba 19 Hydro? 20 MR. TOPPING: It would include the 21 Augmented Flow Program, so it is the operating 22 regime, as the past performance, plus a prediction 23 of the future operating regime they would operate 24 for CRD and Lake Winnipeg Regulation. 25 MS. PHARE: Do you ever ask any of the 5295 1 communities about, the First Nations communities 2 in the north -- I will restrict actually it to 3 South Indian Lake because that is who I'm here 4 assisting today -- about any concerns they may 5 have with those reports or the effects of the 6 program in that particular month? 7 MR. TOPPING: I would like to point 8 out that the Augmented Flow Program, the community 9 agreements that have been signed by Hydro include 10 the effects and impacts of the Augmented Flow 11 Program. 12 MS. PHARE: Yes, I'm aware of that, 13 but you gave testimony earlier this morning 14 stating that before every approval of the 15 Augmented Flow Program that you receive 16 information from the Environmental Approvals 17 Branch -- 18 MR. TOPPING: That's correct, yes. 19 MS. PHARE: -- on potential 20 environmental issues, and I am just wondering if 21 you accord the communities that same opportunity 22 or not, either on a monthly basis or on a yearly 23 basis? 24 MR. TOPPING: No, we don't. The 25 Augmented Flow Program approval, though, does 5296 1 require Hydro to mitigate any effects due to it. 2 MS. PHARE: Do they do that? 3 MR. TOPPING: I understand that Hydro 4 has tabled what is called the healing document, 5 which identifies the community agreements, the 6 studies that have taken place, and any other 7 mitigation measures that have been put in place as 8 a result of the combined, the Augmented Flow 9 Program and -- 10 MS. PHARE: What criteria do you have, 11 as the Crown, or as Water Resources, to ensure 12 yourself that that clause is being fulfilled 13 adequately? 14 MR. TOPPING: This is about the 15 Augmented Flow Program? 16 MS. PHARE: You just said that 17 Manitoba Hydro is required to mitigate. 18 MR. TOPPING: Under point 5 of the 19 authorization, 20 "Manitoba Hydro fully mitigate any 21 effects of the altered levels and 22 flows." 23 MS. PHARE: I understand that is in 24 your annual approval. What I am asking is how do 25 you ensure to yourself that that clause is being 5297 1 fulfilled? 2 MR. TOPPING: Through the community 3 agreements that Hydro has put in place, has signed 4 with the communities. 5 MS. PHARE: So, in your view, that is 6 the only requirement that Manitoba Hydro has to 7 fulfill in order to fully mitigate all adverse 8 effects on the community of South Indian Lake, in 9 order to fulfill this term of your license? 10 MR. HANNON: I think the idea behind 11 the condition is that, if there are impacts, that 12 Hydro has the responsibility to mitigate them. 13 Mr. Topping made reference to one of the ways in 14 which they are mitigated through agreements, and 15 there are elements of those agreements that go to 16 aspects of mitigating those effects. 17 MS. PHARE: So, what if a particular 18 month you get an Augmented Flow Program report 19 that shows some variation that might -- do you 20 ever, how do you find out whether or not that 21 water flow variation has impacted adversely the 22 community of South Indian Lake, for example? 23 MR. TOPPING: Firstly, Hydro does 24 notify the branch of any deviations. 25 MS. PHARE: Do they specifically -- 5298 1 MR. TOPPING: Your question is 2 hypothetical in nature. 3 MS. PHARE: Does Hydro specifically 4 notify you of any adverse impacts on the community 5 of South Indian Lake each year, as required by the 6 Augmented Flow Program letter? 7 MR. HANNON: I'm not sure that is what 8 the letter requires. It requires Hydro to fully 9 mitigate any effects of the altered levels and 10 flows. 11 MS. PHARE: I'm aware that the letter 12 doesn't say that they have to tell you that they 13 have done it. I'm asking you, though, do they 14 tell you? 15 MR. TOPPING: I can't answer that 16 question because -- 17 MS. PHARE: Either they do tell you or 18 they don't tell you, or you don't know? 19 MR. TOPPING: It is more likely that I 20 don't know, because I do not get into the details 21 of administering -- 22 MS. PHARE: The licenses that you -- 23 MR. TOPPING: -- the licenses in that 24 detail, yes. 25 MS. PHARE: Who does? 5299 1 MR. TOPPING: I have a staff member 2 that deals with that, Indian water rights 3 licenseing section. 4 MS. PHARE: Who is that person? 5 MR. TOPPING: Mr. Tat Louis. 6 MS. PHARE: Would he be prepared to 7 come up here and answer my questions at some 8 point? 9 MR. HANNON: We would be prepared, if 10 it is appropriate, to undertake to give answers, 11 but I don't think that we are prepared -- we are 12 doing our best to answer the questions now on the 13 issues. 14 MS. PHARE: Are you suggesting that 15 you could get an undertaking to me on the answer 16 to that question? That would be fine with me. 17 MR. TOPPING: Will do. 18 19 (UNDERTAKING MWS-79: Advise if Hydro notifies 20 Water Branch re adverse impacts on community of 21 South Indian Lake each year) 22 23 MS. PHARE: Continuing to talk about 24 your communications with South Indian Lake, do you 25 anticipate that when the CRD final license 5300 1 approval is coming your way, or that you are 2 processing that, that you will engage in a section 3 35 consultation with the community of South Indian 4 Lake, or other First Nation, or Metis communities, 5 as you are doing right now on this interim 6 license? 7 MR. TOPPING: The Province has 8 indicated that they are prepared to consider a 9 consultation, but it is very much based on Hydro's 10 submission on the -- also the concerns that would 11 be tabled with the Minister. 12 MS. PHARE: Isn't in it in fact based 13 on the fact that you will be making a decision 14 that then triggers, a decision under a piece of 15 legislation that then may impact Treaty and 16 Aboriginal rights? That is the basis, that is 17 what you put forward this morning as the basis for 18 your decision to consult on this particular 19 interim license. So I'm putting forward to you to 20 see if you agree or not that that same criteria 21 would apply in terms of the CRD final license? 22 MR. HANNON: I think Mr. Topping said 23 that the Government has said that it is prepared 24 to have a consultation process about the 25 application for a final CRD license, but that 5301 1 hasn't happened yet. So it is very premature to 2 discuss what will happen in that process, and it 3 depends on the application and assessment of all 4 of the circumstances. 5 MS. AVERY KINEW: Mr. Hannon, I 6 understood you to say before that the Province 7 would consider section 35 consultations. Now you 8 are saying something different. 9 MR. HANNON: I don't think that I am. 10 I'm saying that the Province said it is prepared 11 to have a consultation process about an 12 application for a Churchill River Diversion final 13 license. But there isn't an application right 14 now, so the Province hasn't structured or 15 developed any kind of plan or content for that 16 consultation at this time. But I believe it is 17 correct to say that it recognizes that there will 18 be a consultation process of some kind at that 19 time. 20 MS. AVERY KINEW: Thank you. 21 MS. PHARE: I would like to talk to 22 you about something that you mentioned this 23 morning, or ask you a couple of questions about 24 the fact that the proponent, after the interim 25 license period is I guess completed -- for lack of 5302 1 a better word, I'm not sure what the appropriate 2 word is -- that the proponent is entitled to apply 3 for a final license. You stated that in your 4 presentation this morning. And I'm trying to 5 understand what approach you are considering, if 6 you can answer this at this point, in the interim 7 license? I will go back to the CRD license as an 8 example, because that is the only one that we 9 actually have to work with. 10 In the CRD license, article 18 states 11 that after the construction, or the activities as 12 set out in the CRD license are completed, the 13 Minister shall and will issue in favour of the 14 licensee a final license for the diversion, et 15 cetera, et cetera, et cetera. So that seems to me 16 to be a slightly different approach, where it is 17 not necessarily that the proponent is entitled to 18 apply, but it is that once the project is done, 19 that the Minister in that case shall issue a final 20 license. So the issue becomes, and we've talked 21 about it at length in these hearings before, is 22 the CRD done or not? And we have heard some 23 evidence about whether or not the Churchill River 24 Diversion is actually considered completed or not. 25 MR. TOPPING: As I indicated, Hydro 5303 1 still is working on the severance line as one 2 undertaking of the interim license. 3 MS. PHARE: And when that is done then 4 the Minister shall issue a license? 5 MR. TOPPING: Once Hydro files for an 6 application for final license. 7 MS. PHARE: How does that relate to 8 the evidence given earlier that it may go to 9 public hearings or may not? It appears that this 10 license says "a license shall be granted." 11 MR. HANNON: I should point out as 12 well that section 43 of the regulation provides, 13 "Upon the completion of the initial 14 development, according to the plans 15 approved..." 16 which parenthetically means under the interim 17 license, 18 "... and upon fulfillment and 19 compliance otherwise of all of the 20 terms and conditions of the interim 21 license and the regulation, the 22 interim licensee shall be entitled to 23 a final license authorizing certain 24 activities." 25 So the issue of the way the water power regulation 5304 1 works is when an interim license is completed, 2 there is a process to determine that all of the 3 conditions have been met, and then a final license 4 will be issued. But there are also provisions for 5 providing conditions in the final license and 6 ensuring that it meets the requirements of the 7 regulation. So the legislative process is that 8 there is supposed to be a final license, it is 9 not -- it is not a decision on whether or not 10 there will be a project, that is made at the stage 11 of the interim license because it is a significant 12 development. At the time of the final license, or 13 at the time that the initial development is 14 completed, then there is an assessment of the 15 meeting of the terms and conditions, and a 16 determination of a longer term, ongoing operating 17 regime under a final license. So that is the 18 process that we are referring to; Hydro would 19 apply for a final license, but recognizing the 20 requirements under section 43 of the regulation, 21 and as reflected in the existing license. 22 MS. PHARE: So, essentially, the 23 decision that remains to be made on the final 24 license is about the terms and conditions rather 25 than whether or not a final license will be 5305 1 granted? 2 MR. HANNON: I guess also, as well, to 3 the extent to which all of the conditions of the 4 interim license have in fact been fulfilled. 5 MS. PHARE: Section 3 of the Churchill 6 River Diversion interim license states that, 7 within five years from the date of the license, 8 that Manitoba Hydro was to have satisfactorily 9 completed the undertaking. And then section 4 10 says, once they were done, they were supposed to 11 notify the director of the fact that they 12 completed it, in which case then the director 13 decides what is the actual date of completion, 14 either the date that the waters were beginning to 15 be flowing, after the diversion has been 16 structured, or five years, what was in article 3. 17 So regardless of whether or not 18 Manitoba Hydro has completed a severance line or 19 anything else, would you not agree that those two 20 clauses in fact state that by definition in this 21 license the project is completed? 22 MR. TOPPING: I believe the intent of 23 that statement is that the development is 24 functional for the intended purpose of -- in other 25 words, the plant is in operation, that is the 5306 1 intent of that statement. One must recognize that 2 the other undertakings or conditions on the 3 license, there is a greater level of effort 4 required, particularly reaching community 5 agreements and that sort. 6 MS. PHARE: Would you not agree that 7 this provision, article 4, states that regardless 8 of whether or not the development has actually 9 been completed, that it is deemed to be completed 10 as of five years from the date of the license? 11 MR. HANNON: I don't think it says 12 that. It is a condition in 3 as to the five year 13 period to complete the works, certain works under 14 the undertaking, installing machinery and 15 equipment. That is to put a time frame on it. 16 MS. PHARE: Right, five years from the 17 date of this license those activities, the 18 activities authorized by this license are supposed 19 to be done. That's what clause 3 says? 20 MR. HANNON: Certainly those 21 activities that are listed there, yes, install all 22 of the machinery and equipment required for a 23 development capable of diverting waters from the 24 Churchill River to the Nelson River. 25 MS. PHARE: So then the movement into 5307 1 a final license was supposed to occur as of, 2 according to article 18, immediately, beginning in 3 1978, whether or not the activities were done? 4 THE CHAIRMAN: That is not what I 5 heard the response to be. I think you are asking 6 the same question, but I think it has been 7 answered, but it wasn't answered to your liking, I 8 think. 9 MS. PHARE: So, can I get a 10 clarification then, because I think I'm 11 misunderstanding? 12 MR. HANNON: Those conditions are in 13 the license. It is always difficult to explain a 14 condition that is there in plain view, or 15 reasonably plain view, as to what that means. But 16 what we have here is we have in 3 a provision that 17 puts a time period on the license in terms of 18 doing certain activities and installing machinery 19 and equipment. 20 Then in section 4 of that license, 21 there is a provision for notifying the director, 22 and then to determine a date for the purpose of 23 the license and regulations. But Mr. Topping had 24 mentioned earlier that there were still some 25 things that were being done in terms of plans and 5308 1 such in order to turn to a final license. And 2 that is what is being, as I understand it, being 3 done in respect of the license. 4 MS. PHARE: Were those activities that 5 you are waiting to be completed, were they 6 included in the original construction plans that 7 are referred to in this interim license, or are 8 they activities that have been developed 9 subsequent? 10 MR. TOPPING: This pre-dates me by 11 quite a number of years. 12 MS. PHARE: Could you please undertake 13 to provide me with that information? 14 MR. MAYER: Can I try to get in here? 15 I understand that you have a license, you have a 16 period within the interim license where you must 17 construct the goodies. You have similar 18 legislation in the Parks Act, where you give 19 somebody a permit to build a cabin on a remote 20 island in Paint lake, they have X number of years 21 to do this, but there are further conditions that 22 have to be complied with before you will issue 23 them a long term lease, for example. I'm trying 24 to draw an analogy here. So with the interim 25 license on Churchill River Diversion, all the 5309 1 machinery, the bricks, the boards, the pulleys, 2 the dams, were in place within the five years. 3 And then I understand that the only thing that may 4 well prevent Hydro from applying for a permit and 5 being entitled to obtain a final license at this 6 point is their failure to date to have met all of 7 the conditions that were attached to the license. 8 Am I correct in that? 9 MR. TOPPING: They have further 10 undertakings on the conditions, yes. 11 MR. MAYER: One of them being the 12 defining of the property that they intend to 13 occupy -- that is what we have been calling the 14 severance line. 15 MR. TOPPING: Correct. 16 MR. MAYER: I would further suggest 17 that the provision in condition 14 to clear the, 18 basically clear the bush that got flooded, may 19 also pose a problem for Hydro in obtaining a final 20 license at this point. Would I be correct in 21 that -- assuming there still is some bush in 22 Mystery Lake, as I assure you there is. 23 MR. TOPPING: I don't know if that is 24 one of the conditions, if that is one of the 25 conditions. I do know the severance line is the 5310 1 big issue. 2 MR. MAYER: Condition 14 reads to me 3 like they have to clean the bush out of the water. 4 I may be incorrect in that. But assuming it is 5 interpreted that way, that too could pose a 6 problem for Manitoba Hydro should they apply for a 7 final permit, am I correct, or final license? 8 MR. HANNON: I think in principle all 9 of the conditions of the interim license are to be 10 looked at. 11 MR. MAYER: Okay. I think I have it 12 clear. 13 MS. PHARE: Are you of the opinion 14 that Manitoba Hydro wasn't required to apply for 15 any extension of this interim license? 16 MR. TOPPING: No, they do not have to 17 apply for an extension. 18 MS. PHARE: I figured that is what 19 your answer was. 20 Are there penalties in the Water Power 21 Regulations for violating Water Power Act 22 licenses? 23 MR. HANNON: I think I pointed out 24 just before the lunch break that section 81 deals 25 with penalties for default by licensee. And it is 5311 1 there, it is about two pages worth of process for 2 dealing with circumstances where a licensee has, 3 in the opinion of the Minister, failed to observe 4 or perform a term or condition of the license. 5 MS. PHARE: I do recall you stating 6 that in your opinion that was either interim or 7 final licenses? 8 MR. HANNON: It doesn't distinguish 9 between interim and final licenses. 10 MS. PHARE: So from the day, from 11 May 11, 1973 to present, if there are violations 12 to the Missi flow regime clause, in your opinion 13 that clause would apply? 14 MR. HANNON: As it would with any 15 license. 16 MS. PHARE: Okay. Thank you. Those 17 are all of my questions. Thank you very much. 18 THE CHAIRMAN: Thank you, Ms. Phare. 19 Were there further questions? Mr. Bedford? 20 MR. BEDFORD: Mr. Topping, in the 21 questions that you have been asked this afternoon, 22 we again touched on the subject of Missi Falls and 23 the Churchill Weir. You were told that there had 24 been some earlier testimony, weeks ago at this 25 hearing, on the subject of the Missi Falls and the 5312 1 Churchill Weir that had been given by my client, 2 Manitoba Hydro. 3 In substance, my recollection of that 4 testimony is that the license for the Churchill 5 Weir has a stipulation in it that is more 6 stringent for the flows out of Missi Falls. And 7 when I say more stringent, I understand that to be 8 that they stipulate a higher minimum flow than 9 what the CRD license, the interim CRD license 10 stipulates. The Churchill Weir license is much 11 more recent in time than the interim license for 12 CRD. 13 Would you agree with me that in a case 14 where you have two licenses, the CRD license and 15 the subsequent Churchill Weir license, that both 16 address Missi Falls and the outflows from Missi 17 Falls, that the appropriate action for the 18 proponent, the operator of Missi Falls, which is 19 my client, is to follow the more stringent 20 requirements in the more recent license, that is 21 the one for Churchill Weir? 22 MR. TOPPING: I do agree with that, 23 yes. 24 MR. BEDFORD: Thank you. That is it. 25 THE CHAIRMAN: Thank you. We thank 5313 1 you, Mr. Topping and Mr. Hannon. Mr. Grewar. 2 MR. GREWAR: This has been brought 3 forward and submitted by the Metis Federation, it 4 is the excerpt from Hansard that was discussed 5 this morning. I just want to assign an exhibit 6 number, I will distribute copies, although we 7 still want to verify the date as to when the 8 recording was actually made. But it will be 9 MMF-1001, excerpt from Hansard 2004, and we will 10 confirm the date. 11 THE CHAIRMAN: Thank you. 12 13 (EXHIBIT MMF-1001: Excerpt from 14 Handsard 2004) 15 16 THE CHAIRMAN: We will now call on the 17 project administration team representatives. 18 MR. GREWAR: He has already been sworn 19 in -- although Mr. Hreno, were you sworn in? 20 MR. HRENO: No. 21 MR. GREWAR: State your name for the 22 record? 23 MR. HRENO: John Trent Hreno. 24 MR. GREWAR: Mr. Hreno, are you aware 25 that in Manitoba it is an offence to mislead this 5314 1 Commission? 2 MR. HRENO: I am. 3 MR. GREWAR: Do you promise to tell 4 only the truth in proceedings before this 5 Commission? 6 MR. HRENO: I do. 7 THE CHAIRMAN: Proceed, Mr. Strachan. 8 MR. STRACHAN: Thank you, 9 Mr. Chairman, panel members. I thought it might 10 be appropriate if I made a few brief openings 11 remarks. I have presented to this panel on 12 March 1st, on the opening day in Thompson and The 13 Pas, a brief summary of the project overview that 14 we conducted on the Wuskwatim proposals. I have 15 also provided on those occasions, in addition to 16 the overheads that I used, a detailed written 17 portion of the information to Mr. Grewar, and I 18 have provided him some more copies of that 19 information today. And he might be able to 20 distribute that while I'm making my opening 21 remarks. 22 MR. GREWAR: Yes, Mr. Chairman. And 23 interestingly enough, this was not assigned an 24 exhibit number back on March 1st. Mr. Strachan's 25 overhead slide presentations were, however, this 5315 1 actual document, which is the cooperative 2 environmental assessment process for the proposed 3 Wuskwatim Generation and Transmission Projects by 4 Mr. Strachan, the chair of the project 5 administration team, was not assigned an exhibit 6 number, so I would like to proposed that we assign 7 it as MC-1002 and I will distribute it now. 8 9 (EXHIBIT MC-1002: Cooperative 10 environmental assessment process for 11 the proposed Wuskwatim Generation and 12 Transmission Projects by Mr. Strachan) 13 14 MR. STRACHAN: The project proposals 15 for the generation station and transmission line 16 were submitted for review to us on December 7, 17 2001. Because both Manitoba and Canada 18 environmental approvals were required for the 19 project, we established a project administration 20 team to administer the review. The project 21 administration team, or PAT, consists of Manitoba 22 members, Mr. Hreno and myself, and Canada members, 23 Mr. Dan McNaughton and Ms. Bev Ross. As this 24 Clean Environment Commission hearing is a 25 component of Provincial review process, the PAT is 5316 1 represented here today by the Provincial Manitoba 2 members. 3 Following the initial review of the 4 project proposals, EIS guidelines were developed 5 through a public consultation process, 6 administered by your Commission, Mr. Chairman. 7 And these guidelines were finalized on April 29, 8 2002. 9 The EIS that we have discussed at this 10 hearing was subsequently filed on April 28, 2003. 11 And following the review of the EIS through the 12 project administration team process, which 13 involved the technical advisory committee and some 14 limited public review, we required two 15 supplemental filings for more information to 16 further detail the environmental assessment 17 information. And these were filed with us on 18 August 8th, 2003 and October 10, 2003. 19 As I indicated in my opening remarks 20 on March 1st, there is an ongoing specific 21 information request being developed between the 22 proponents and the Department of Fisheries and 23 Oceans regarding specific permitting requirements 24 under the Federal Fisheries Act. 25 In consideration of the review of the 5317 1 Environmental Impact Statements and the two 2 supplemental filings, and based on the advice 3 received from the public and the technical 4 advisory committee, the project administration 5 team determined initially on October 9th, 2003, 6 and then confirmed that confirmation on 7 October 24th, 2003, that the Environmental Impact 8 Statement and supplemental filings were sufficient 9 to be considered by the Clean Environment 10 Commission and the participants through this 11 public hearing process. 12 As you know, the public hearing 13 commenced on March 1st, and the Manitoba project 14 administration team members have been present at 15 each and every day of the hearing. 16 Lastly, in consideration of the advice 17 that we received from the Commission process, the 18 project administration team, both the Provincial 19 members and the Federal members, will proceed to 20 take our regulatory decisions that are mandated to 21 us, under both the Manitoba Environment Act and 22 the Federal legislation. 23 So with that, Mr. Chairman, we will 24 entertain your questions on the environmental 25 process that we administered for these proposals. 5318 1 THE CHAIRMAN: I should know this, 2 Mr. Strachan, but just to refresh my memory, the 3 two supplementary filings that you required and 4 received dealt specifically with which issues, do 5 you recall? 6 MR. STRACHAN: They dealt with a 7 number of issues, deficiencies, if you will, 8 Mr. Chairman, on the review of the Environmental 9 Impact Statements that were filed with us on the 10 generation project and the transmission line 11 project. So they were essentially requirements 12 for further detailed information to clarify 13 environmental comments and issues that were 14 provided to us, mainly through our technical 15 advisory committee review process. 16 THE CHAIRMAN: Thank you. Questions, 17 Mr. Sargeant? 18 MR. SARGEANT: Mr. Strachan, I'm just 19 wondering, I guess I'm not sure what your -- you 20 being PAT -- what your role is in the process. 21 And I'm referring in particular to page 3 of this 22 document where you talk about, at the top of the 23 page there is three bullets, and the first one 24 says that the intent and the scope of the 25 guidelines have been satisfied. The next one says 5319 1 that the information generated is sufficient to be 2 considered at the CEC public hearings. 3 Is it your role just to ensure that 4 the guidelines have been satisfied, or is it your 5 role to assess the quality of the Environmental 6 Impact Statements filed by the proponents? 7 MR. STRACHAN: Our role is both, 8 Mr. Sargeant, to first ensure that the intent and 9 scope of the EIS guidelines, i.e., the scope of 10 the review have been satisfied. And also to have 11 some comfort that the Environmental Impact 12 Statement and further information filed addresses 13 the breadth and scope of the issues sufficiently 14 so that we can take final regulatory decisions at 15 the end of the day. 16 Normally, without a public hearing 17 process, we would take that exercise to a 18 conclusion more than we have during this process. 19 But because of the public hearing process, and one 20 important facet of the overall review is to seek 21 your advice and recommendations of the sufficiency 22 of the information, it wasn't necessary at this 23 point in time for us to take our review to a 24 conclusion, but only to be satisfied that the 25 documentation was sufficient for your review, 5320 1 there were no major holes in the documentation, 2 prior to asking you to conduct your public review 3 on the information. 4 MR. SARGEANT: So at this point in the 5 process, you haven't fully assessed whether or not 6 the information provided by Hydro/NCN is good 7 science? 8 MR. STRACHAN: I would not agree with 9 that totally. I think we have satisfied 10 ourselves, to a great extent, that the EIS and 11 supplemental filings does constitute good science, 12 good information. It addresses the scope and 13 intent of the guidelines. And what we are looking 14 forward from your process is the final stage to 15 get both your advice, and the advice of other 16 participants that didn't really participate fully 17 in our process because they knew this public 18 hearing process was coming along, so to get that 19 advice so we can take that final step. 20 MR. SARGEANT: So if this was a level 21 1 or level 2 process, without public hearings, 22 what would you do to take it to final stage? 23 MR. STRACHAN: We would ensure that 24 the documentation was available to all of those 25 that were interested in reviewing it. We would 5321 1 receive and analyze comments received from all 2 parties, and satisfy ourselves that those comments 3 and information were addressed to the extent they 4 should be addressed. Then we would then proceed 5 to a final licenseing decision based on our review 6 of all of that information. 7 MR. SARGEANT: So are you satisfied 8 that the information that Hydro has provided has 9 identified fully all of the environmental concerns 10 that might exist? 11 MR. STRACHAN: At the time that we 12 referred the EIS to you for the public hearing 13 process, we were satisfied that the intended scope 14 of the guidelines were addressed by the EIS and 15 the supplemental filings. And to the extent that 16 we knew the environmental issues, the public 17 issues at that time, that they were pretty much 18 satisfied. But we knew there would probably be 19 more environmental issues and public issues, I 20 think as we have all heard through these 22 days 21 of hearings, that have still yet to be addressed 22 and decisions taken on them. 23 MR. SARGEANT: 22 days and still 24 counting. 25 MR. STRACHAN: Yes. 5322 1 MR. SARGEANT: I think that is all I 2 have for now. Thank you. 3 MR. STRACHAN: Thank you. 4 THE CHAIRMAN: Mr. Abra? 5 MR. ABRA: Mr. Strachan and Mr. Hreno, 6 just following up on what Mr. Sargeant was asking 7 you about the EIS, did I understand you to be 8 saying that your review of an EIS might be more 9 thorough in a situation where there aren't going 10 to be Clean Environment Commission hearings, as 11 opposed to those where you know there are going to 12 be, or you look at different criteria? What is 13 the distinction? 14 MR. STRACHAN: More thorough in the 15 sense that, rather than relying on this public 16 hearing process to consider all of the issues of 17 the other participants, that we would have made 18 sure that the participants address their issues 19 and concerns to us directly, and then we would 20 have analyzed and taken decisions based on those 21 issues identified with us. 22 MR. ABRA: So you get more input then 23 from intervenors, participants, interested parties 24 and so on, when there is not a hearing process, 25 before you make your decision with respect to 5323 1 recommendations of licensure. But in this case, 2 because you knew that there was going to be a 3 hearing process, it is a different kind of 4 analysis that you do as far as determination of 5 the appropriateness of the EIS guidelines? 6 MR. STRACHAN: It is the same analysis 7 at the end of the day, but what we didn't do at 8 this stage, because we knew this hearing process 9 was coming up, and we didn't make an attempt to 10 engage with all of the participants to make sure 11 that we understood and addressed their issues and 12 concerns, because we knew they would be addressed 13 through this public hearing process. 14 MR. HRENO: Just to add to that, if I 15 could, the fact that the participants, 16 intervenors, knew that there were hearings, we 17 think probably lead to decreased comment on the 18 EIS. In fact, we only received two public 19 comments; one from the Public Interest Law Centre 20 on behalf of the Consumers Asociation of Canada, 21 Manitoba Society of Seniors, and then from the 22 Manitoba Wildlands, Canadian Nature Federation. 23 That was it. 24 MR. ABRA: The issues that they raised 25 at that time, Mr. Hreno, were they much -- this 5324 1 may not be a fair question, but I will ask it 2 anyway -- were the issues that they were raising 3 of much the same nature as you have heard them 4 raising during the course of these hearings? 5 MR. HRENO: In many cases they were 6 identical. 7 MR. ABRA: So those issues were raised 8 with you initially, and then they have again been 9 raised during the course of the hearings and so 10 on? 11 MR. HRENO: They have been raised with 12 us initially, they were addressed to an extent -- 13 perhaps there is disagreement by the 14 intervenors -- but addressed to an extent in the 15 two supplemental filings, addressed at length I 16 would say in the interrogatories -- whether or not 17 those answer were ever read, I don't know, but 18 they were addressed -- and addressed during the 19 hearings. 20 MR. ABRA: Okay. When you are 21 reviewing an EIS for any project that may be 22 before you, whether it is one in which there is 23 going to be hearings or one in which there is not 24 going to be hearings, is there set criteria that 25 you use for reviewing the EIS's for specific 5325 1 projects that come in, or do you determine your 2 own criteria for review depending upon the nature 3 of the project, or is it a little bit of both? 4 MR. STRACHAN: I guess, Mr. Abra, the 5 set criteria is the legislative process under the 6 Environment Act, as to how one deals with a 7 development proposal. I think you are probably 8 aware there is a great deal of discretion in that 9 process, given to the director to administer that 10 process. But essentially, for each and every 11 development proposal, the standard, if you will, 12 is the legislative process. So we establish the 13 scope of the assessment, we collect information 14 based on that scope of assessment, and we subject 15 that information to a peer review, if you will, 16 through a public process and a technical advisory 17 committee process, and then we collect that 18 advice, and then take a decision at the end of the 19 day on that advice. So that is sort of the 20 standard process and the criteria that we would 21 use for each and every development proposal. 22 MR. ABRA: Now, did I understand you 23 to say to Mr. Sargeant that, for the purposes of 24 this particular EIS, you reviewed it to satisfy 25 yourselves that it was sufficient to go forward 5326 1 for the public hearings? 2 MR. STRACHAN: Yes. 3 MR. ABRA: And once you had made that 4 determination, then the public hearings were of 5 course called and have been going on and 6 continuing to go on. And then ultimately you will 7 receive a report with recommendations, if the CEC 8 decides to make recommendations. You still have 9 the authority then to do whatever study or 10 investigation you want to do after the CEC 11 hearings, if you think it is necessary, before you 12 make your final decisions or recommendations to 13 the Minister? I'm not sure there is much more you 14 could do. 15 MR. STRACHAN: We would have the 16 authority to address the Clean Environment 17 Commission recommendations. If those 18 recommendations suggested that we do some further 19 informational study, we would have to take a 20 decision on that type of recommendation. If we 21 followed it, fine. If we did not follow it, then 22 we would have to, by the legislation, justify why 23 we did not follow it. 24 MR. ABRA: To reiterate, and I just 25 want to make sure it is clear, at the time that 5327 1 the hearings were called, you were satisfied that 2 the EIS was satisfactory for that purpose? 3 MR. STRACHAN: Yes, we were. 4 MR. ABRA: Now, the project 5 administration team, you have described the four 6 members that are on that team, two of them are 7 Provincial and two of them are Federal. Am I 8 correct? 9 MR. STRACHAN: Correct. 10 MR. ABRA: Are any of the four of 11 you -- I don't say this, believe me, in any kind 12 of a derogatory sense -- but are any of the four 13 of you environmental professionals to the extent 14 that you have actually done environmental 15 assessment yourselves, or prepared environmental 16 reports, or are you primarily administrators, if I 17 can use that term, that have built up a certain 18 expertise over the years that you have been in the 19 positions that you are in? 20 MR. STRACHAN: Currently -- I will 21 speak for myself and Mr. Hreno can speak for 22 himself -- currently, I'm an administrator with 23 the process, but in my previous life with the 24 department or some aberration of this department, 25 I actually did prepare environmental assessments, 5328 1 presented those assessments to the Clean 2 Environment Commission when they had authority to 3 make final decisions, and supported those 4 assessments through that process. So I personally 5 have done both, yes. 6 MR. ABRA: Mr. Hreno? 7 MR. HRENO: I'm primarily an 8 environmental assessment administrator, although I 9 have prepared environmental assessments and 10 reports for international projects, for the World 11 Bank, FEO, United Nations, and the Department of 12 Foreign Affairs and International Trade. 13 MR. ABRA: These are actual 14 environmental assessments and reports that you 15 have done through the years, Mr. Hreno, for 16 those -- that you have just referred to? 17 MR. HRENO: Yes. 18 MR. ABRA: Now, are there any distinct 19 roles for you as the Provincial representatives 20 and the Federal representatives? 21 MR. STRACHAN: There are very distinct 22 roles, Mr. Abra. First of all, I'm chair of the 23 project administration team, so I have a distinct 24 role there. At the end of the day, I have a 25 licensing responsibility for the transmission line 5329 1 project, as director under the Environment Act. 2 My Minister, as you know, has the licensing 3 authority for the generation project. Federally, 4 Ms. Ross from Fisheries and Oceans has some 5 permitting responsibilities under the legislation 6 that she administers. Mr. McNaughton is more of 7 an administrator, as I am now, in terms of 8 administering the Canadian Environmental 9 Assessment process under their Act. So there is a 10 combination of things. 11 MR. ABRA: Now, we have asked you 12 about the EIS. I will ask you this question now, 13 and depending upon what your answer is, I will 14 have quite a few more questions or I won't have 15 any. 16 MR. STRACHAN: I better give the right 17 answer. 18 MR. ABRA: I think you will know what 19 the right answer is. 20 Did the project administration team, 21 or the technical advisory committee, which I will 22 be getting to shortly, or any other departments of 23 the Federal or Provincial governments, to your 24 knowledge, review the NFAAT at all with respect to 25 its detail, with respect to its sufficiency? Was 5330 1 there any review done of the NFAAT? 2 MR. STRACHAN: I will answer 3 initially, and then Mr. Hreno has something to 4 add. But I would say, yes, we, as a project 5 administration team, reviewed both the NFAAT and 6 the EIS components. I might add Provincially that 7 we spent more time on the EIS component than we 8 did the NFAAT component, but we did review both 9 components. 10 MR. ABRA: Did you do any analysis at 11 all of the NFAAT? 12 MR. STRACHAN: Direct analysis, other 13 than through the technical advisory committee 14 process and the information that was received from 15 members on the technical advisory committee, I 16 would say that was the extent of the analysis that 17 we did. We didn't do any outside type of analysis 18 for the NFAAT. 19 MR. ABRA: I will come back to that 20 momentarily. 21 What is the technical advisory 22 committee, now that you have mentioned it, and who 23 is on it? 24 MR. STRACHAN: Mr. Hreno, do you want 25 to take that? 5331 1 MR. HRENO: Sure, I can handle that. 2 Maybe I should go just back to your earlier 3 question, Mr. Abra, about review of the NFAAT, 4 because I can answer that question right now. 5 We specifically asked Ms. Denise 6 Hickson, from Crown Corporation Counsel, to review 7 the needs for and alternatives to submission with 8 respect to the Wuskwatim projects. And she did 9 provide a review. She found some deficiencies in 10 the needs for and alternatives to submission. As 11 a consequence of identifying those deficiencies to 12 us, we requested the proponents prepare some 13 additional information that was addressed in the 14 supplemental filings. 15 MR. ABRA: Go ahead. 16 MR. HRENO: I was going to answer your 17 second question. 18 MR. ABRA: I was going to ask whether 19 that report is available, and if so, can you tell 20 us now what the deficiences -- whether it is or 21 isn't, certainly we would like to see it if there 22 was a report of that nature prepared, but if you 23 could -- I would be in particular interested in 24 what the deficiencies were that were identified? 25 MR. HRENO: That report was made 5332 1 available several days after I received it and it 2 was provided to the Clean Environment Commission, 3 placed in 14 public registries, provided to anyone 4 that asked for it, and placed, to the extent that 5 we could, on our website. I can make you another 6 copy and give it to you if you can't find it. 7 MR. ABRA: It is available obviously? 8 MR. HRENO: It is available and has 9 been made available. 10 MR. ABRA: What were the deficiencies 11 that were identified, Mr. Hreno? 12 MR. HRENO: I will read from it rather 13 than trying to summarize. 14 MR. ABRA: Sure. 15 MR. HRENO: Mr. Abra, I was going to 16 read from my letter as chair of TAC to the 17 proponents, but I see that -- it is dated about a 18 year ago -- I see in my letter I actually refer to 19 the comments made by Ms. Denise Hickson, so I 20 think I will turn to those, or I can read out the 21 letter, it is up to you. 22 MR. ABRA: Whichever answers the 23 question. 24 MR. HRENO: I think the latter does, 25 and I will turn to Ms. Denise Hickson's comments. 5333 1 I will read some excerpts from her letter dated 2 June 27, 2003, and provided to me, addressed to 3 me. Under general comments on page 1, 4 "Provide updates to key documents, 5 particularly those used throughout the 6 corporation for planning, forecasting, 7 and evaluation. This would enable the 8 most current information to be 9 available and to assist where there 10 may be changes in assumptions, et 11 cetera, that have relevance to the 12 evaluations and conclusions of the 13 submission." 14 She then references appendix 2, 3, 4, 7, and 8. 15 MR. ABRA: To the NFAAT filing? 16 MR. HRENO: Yes. 17 "Consider whether all alternative 18 resource options have been considered 19 and whether the Wuskwatim proposals 20 have been selected on reasonable 21 grounds, including economic viability, 22 as an export market driven project and 23 relevant technical factors. The 24 review of economic viability shall 25 consider the Wuskwatim proposals in 5334 1 their entirety. 2 Give consideration at a conceptual 3 level to the environmental, 4 socioeconomic, and cultural effects 5 relative to available alternative 6 resources." 7 Now, that is the scope of review, and Ms. Denise 8 Hickson's comments refer to those specifically, 9 which is why I read them out. 10 Now I will read her comments on those 11 two points. 12 "Hydro's submission indicates that it 13 is planning to develop up to 14 250 megawatts of wind generation in 15 the next 10 years providing the 16 economic, financial, and technical 17 studies confirm its viability. During 18 the technical workshop held June 19, 19 2003, Hydro advised that an updated 20 2003 power resource plan currently 21 being completed will incorporate wind. 22 Hydro indicates that it intends to 23 provide additional documentation on a 24 potential 250-megawatt wind generation 25 resource option. The additional 5335 1 information shall include a summary of 2 the new information from the updated 3 2003 power resource plan and 4 sensitivity analysis regarding its 5 implications on Wuskwatim economics, 6 risk evaluation and financial 7 sensitivities. Since this development 8 does represent a more formal 9 incorporation of wind, additional 10 information on the implications is 11 needed for the participants and panel 12 to consider, given the scope of the 13 review." 14 Mr. Abra, it goes on like this for 15 four pages. 16 MR. ABRA: That is fine, we can get a 17 copy of it in the recess and review it. 18 Do I understand it to be your evidence 19 that when Ms. Hickson did this review -- it was 20 done, as you say, in June of 2003 -- and I 21 understand then that it was passed to Manitoba 22 Hydro and NCN for response, asking them to 23 basically bolster the NFAAT in the areas that she 24 had identified? Am I correct? 25 MR. HRENO: I wouldn't characterize it 5336 1 as passed to Manitoba Hydro and NCN for response, 2 it was more formal than that. It was a direct 3 request for additional information to specifically 4 address Ms. Hickson's comments, and they did that 5 in their supplemental filings. 6 MR. ABRA: That is fine. The point is 7 that you made it known to Hydro that you wanted 8 additional information with respect to the areas 9 that had been identified by Ms. Hickson? 10 MR. HRENO: That's correct. 11 MR. ABRA: Do I have that correct? 12 MR. HRENO: That's correct. 13 MR. ABRA: The areas that you referred 14 to, did any of the concerns that she identified -- 15 or did she do any review in particular of the 16 operation, design, and location of either the dam 17 or the transmission lines, to your knowledge? 18 MR. HRENO: I can't answer that 19 question, Mr. Abra -- perhaps Ms. Hickson could -- 20 but I don't know specifically what she looked at 21 in her review. I do know that she looked, not 22 only at the NFAAT portion of the EIS, but 23 Ms. Hickson, I can tell you, did review the 24 interrogatories, and in the end -- or the 25 supplemental filings and the interrogatories, and 5337 1 in the end she was satisfied. 2 MR. ABRA: What I would like to do is 3 put on the record the areas that I'm particularly 4 concerned with, and if you could pass them on to 5 her, she may be able to give a yes or no answer, 6 but in the situations that she gives a no, that is 7 an answer, and if it is yes, then we would like to 8 know her comments in that regard, with respect to 9 in particular operation, design, and location, 10 transmission, design, and routing, capital and 11 production costs, projected export revenues, 12 alternative analysis, including wind, DSM, natural 13 gas, coal, imports, and others that have been 14 raised. Obviously, she spent a considerable 15 amount of time on wind from what your answer was, 16 but whether she examined any of the other 17 alternatives at all, the impact of the Wuskwatim 18 project on the financial stability of Manitoba 19 Hydro, and the impact of the Wuskwatim project on 20 Manitoba Hydro's existing ratepayers. 21 Now, it may very well be that she will 22 just say no, a lot of those I didn't examine. The 23 ones that she did, we would like to know what her 24 analysis was in that regard. 25 MR. HRENO: It may very well be that 5338 1 her response is going to elicit more questions, 2 and I think that is reasonable, from yourself and 3 from the Commissioners. Perhaps, just as a 4 recommendation for your consideration, you may 5 want to ask Ms. Hickson to answer your questions 6 herself. 7 MR. ABRA: We can certainly consider 8 that. 9 MR. HRENO: We offered that earlier. 10 MR. ABRA: Fine, thank you. 11 What is the technical advisory 12 committee? 13 MR. HRENO: The technical advisory 14 committee, or TAC, is a group of Provincial and 15 Federal departmental representatives that review 16 and offer comment on Environment Act proposals 17 that we receive. 18 MR. ABRA: You are the chair of it? 19 MR. HRENO: I'm the chair of this 20 particular technical advisory committee. 21 MR. ABRA: And who are the other 22 members of this particular TAC? 23 MR. HRENO: They are quite lengthy. I 24 can read out the names. I don't have them 25 memorized. There is quite a few, but I can read 5339 1 it out if you like. 2 MR. STRACHAN: They are in the 3 attachment 3 of my handout, Mr. Abra. 4 MR. ABRA: Sorry, thank you -- 5 MR. STRACHAN: Or 2, sorry. 6 MR. ABRA: Each of you have given your 7 background as far as being professional 8 environmentalists are concerned. Are any other 9 members of TAC professionals as well, as far as 10 having done environmental assessments and so on? 11 MR. STRACHAN: Professionals in their 12 field of expertise -- I would suggest very few of 13 them, to my knowledge, have done environmental 14 assessments -- 15 MR. ABRA: But each one -- 16 MR. STRACHAN: -- rather than review 17 environmental assessments. 18 MR. ABRA: Each one of them has an 19 area of expertise that you rely on for the 20 purposes of the study that TAC is doing? 21 MR. STRACHAN: That is correct. 22 MR. ABRA: Does the technical advisory 23 committee, did it also review the EIS? 24 MR. STRACHAN: Yes, they did. 25 MR. ABRA: For what purpose -- was it 5340 1 role distinct from that of -- and did it look at 2 different aspects than what was looked at by PAT? 3 MR. STRACHAN: I would say it was more 4 focused, Mr. Abra. The strength of the technical 5 advisory committee process in our Environment Act 6 process is that we embody a large number of 7 individuals with a breadth of knowledge and 8 experience, so each individual will focus on his 9 or her area of expertise, and review environmental 10 impact statements and provide advice on that 11 basis. So it is a lot more focused review than an 12 overall review, that both the project 13 administration team needs to take. 14 MR. ABRA: It again will be called 15 together to review the report of the CEC once it 16 is made? 17 MR. STRACHAN: Generally not -- 18 certainly, the CEC would be made available 19 publicly and they could access it if they wanted 20 to, but we would probably not necessarily seek 21 more specific advice, but it could be dependent on 22 the type of recommendations that come from the 23 public hearing process and the Commission that we 24 may have to seek that advice. But, normally, we 25 would not give them the report and say, well, what 5341 1 do you think of the report? 2 MR. ABRA: Now, am I correct that a 3 different technical advisory committee is put 4 together for each project, depending on the nature 5 of the project? 6 MR. STRACHAN: That is essentially 7 correct. There is some similarities. 8 MR. ABRA: This particular one, you 9 put together a technical advisory committee for 10 the purposes of reviewing the two applications 11 that are before you, relating to the transmission 12 line and the generation station? 13 MR. STRACHAN: That is correct. 14 MR. ABRA: And you pick people that 15 you think are the most appropriate people for the 16 purposes of assessing what it is that you are 17 looking at, in this case the transmission line and 18 the generation station? 19 MR. STRACHAN: Yes. 20 MR. HRENO: If I could just add to 21 that, Mr. Abra? That is essentially correct, we 22 picked people that we felt would be most 23 appropriate, and also in some cases people that we 24 felt would be the appropriate contacts for other 25 governmental, for distribution to other Government 5342 1 reviewers. For example, Sustainable Resource 2 Management Branch, they are the conduit, if you 3 will, for other branches and other divisions to 4 review Environment Act proposals. So they 5 distribute material that we send them to the 6 regions, or to specialists in Wildlife Branch, 7 whatever the case may be. So the director of the 8 Sustainable Resource Management Branch is an 9 administrator like Mr. Strachan and myself. As a 10 director, he may not review it himself, but he 11 will ensure that his staff distribute it to the 12 other experts that could offer comment. And those 13 people aren't even listed as TAC members, but 14 those comments were received and considered. 15 MR. ABRA: Okay. If I might have a 16 moment? 17 Manitoba Environmental Assessment 18 Review Agency, or MEARA as we have heard it 19 referred to as, did it conduct any kind of an EIS, 20 or was there an EIS conducted for it, or an 21 equivalent assessment document for the Churchill 22 River Diversion or the Augmented Flow Program? 23 MR. STRACHAN: Not to my knowledge, 24 no. 25 MR. ABRA: Now, is your department 5343 1 aware, Mr. Strachan, of any environmental 2 assessment of the effects of the Augmented Flow 3 Program of the South Indian Lake Northern basin, 4 the Lower Churchill River, including the Churchill 5 River estuary, lakes along the diversion route, 6 lakes and reservoirs on the Lower Nelson receiving 7 CRD flows, or the Nelson River estuary? 8 MR. STRACHAN: Environmental impact 9 assessment per se, I would say no. We talked 10 about several reports through the course of this 11 hearing that perhaps one could consider an 12 environmental impact assessment of sorts. For 13 those components, the Lake Winnipeg/Churchill/ 14 Nelson River Study Board was one of them. The 15 1992 Federal ecological monitoring program was 16 another one. There has been considerable 17 assessment done -- 18 MR. ABRA: Do you not characterize 19 them as being environmental impact statements? 20 MR. STRACHAN: Well, not in the 21 context that we talk about environmental impact 22 statements today. But I indicated that in those 23 days, probably they would have been an 24 environmental assessment of some kind. 25 There was also has been a lot of, 5344 1 perhaps not environmental assessment, but a lot of 2 environmental investigation conducted through the 3 negotiations under the Northern Flood Agreement as 4 well. So there is environmental information out 5 there on the existing system, but it is not in the 6 form of what I would classify as a modern day 7 environmental impact assessment. 8 MR. ABRA: Those studies were done for 9 MEARA, the ones that you have referred to? 10 MR. STRACHAN: Under MEARA? 11 MR. ABRA: Yes? 12 MR. STRACHAN: No, they were not. 13 MR. ABRA: Who were they done for? 14 MR. STRACHAN: They were done for 15 Manitoba and Manitoba Hydro, as I understand it. 16 MR. ABRA: You have reviewed them, 17 over the years? 18 MR. STRACHAN: I looked at them years 19 ago. I haven't reviewed them recently, no. 20 MR. ABRA: Did any of those 21 assessments that you have referred to, 22 Mr. Strachan, identify or quantify any 23 environmental effects that were caused by the 24 projects that they were reviewing, to your 25 recollection? 5345 1 MR. STRACHAN: I would have to review 2 the information again, Mr. Abra. I wouldn't be 3 able to provide that information to you today. 4 MR. ABRA: Okay. Now, you are also 5 responsible for the environmental protection plans 6 that are being prepared by Manitoba Hydro and NCN? 7 MR. STRACHAN: Responsible for? 8 MR. ABRA: For reviewing them? 9 MR. STRACHAN: Eventually, if they are 10 required to be submitted, yes, then we will review 11 and comment on them, perhaps approve them. 12 MR. ABRA: In the event that they are 13 prepared, are they made available for public 14 review? 15 MR. STRACHAN: Generally they would, 16 yes. 17 MR. ABRA: And are comments then 18 invited in that regard, or what is done with them 19 once they are available for public review? 20 MR. STRACHAN: If we make them 21 available for public review, then we would invite 22 public comment on them, yes. 23 MR. ABRA: Assuming for the moment 24 that there are the environmental protection plans 25 for the Wuskwatim projects, do you make a 5346 1 determination as part of your recommendations to 2 the Minister with respect to the class 3 or with 3 respect to the issuance of the license for class 4 2, as to whether annual reports should be made as 5 part of the environmental protection plan process? 6 MR. STRACHAN: That would perhaps be 7 one element we would address in the license. We 8 certainly haven't got to a stage of identifying 9 any type of license requirements at this point in 10 the review. But eventually, at the end of the 11 day, if everything goes as normal, we will be 12 developing a license for consideration of our 13 Minister, and it will contain things that we think 14 it should contain. 15 MR. ABRA: Does that often include an 16 environmental protection plan, the preparation of 17 an environmental protection plan? 18 MR. STRACHAN: Other licenses do 19 contain requirements for environmental protection 20 plans, yes. 21 MR. ABRA: But you said no 22 determination has been made in this regard with 23 respect to these two projects? 24 MR. STRACHAN: No determination of any 25 licensing requirements have been made at this 5347 1 point in time. 2 THE CHAIRMAN: On that same question, 3 if the proponent has, as part of the EIS program, 4 proposes or projects or indicates that it will 5 implement a monitoring program for a specific 6 environmental adverse effect, or potential adverse 7 effect, or for that matter an environmental 8 protection plan, would they not automatically be 9 reflected in the license? 10 MR. STRACHAN: That would be a logical 11 conclusion, Mr. Chairman, yes. 12 THE CHAIRMAN: Thank you. 13 MR. ABRA: Have you received 14 environmental protection plans from Hydro in the 15 past with respect to licenses that you have given? 16 MR. STRACHAN: For a generation site, 17 no, because we haven't licensed one in the past. 18 I believe for a number of transmission line 19 projects we have environmental protection plans in 20 place -- if that is the case? 21 MR. HRENO: Yes, I believe we have 22 environmental protection plans for previous 23 transmission lines -- subject to check, I would 24 have to take a look. Certainly the notion of an 25 environmental protection plan has developed over 5348 1 the last several years, and we think it is an 2 improvement on the environmental assessment 3 process in that there might be a second round, or 4 second opportunity for public comment on some site 5 specific potential impacts and mitigation. I 6 could find out for you about other transmission 7 line projects, if you would like, with respect to 8 EPP. 9 MR. ABRA: So you don't recall any off 10 the top of your head? What I was going to ask you 11 was sort of your opinion with respect to the 12 adequacy of the plans in the past that you have 13 reviewed? 14 MR. HRENO: Well, it has only been the 15 last several years that we have gone into 16 requesting that an environmental protection plan 17 be filed with us. Previously, before my time, we 18 didn't ask for environmental protection plans. 19 But in an environmental assessment, it is the way 20 it is going in other jurisdictions, that is there 21 is a requirement that the proponent file some site 22 specific mitigation, and we thought we would go 23 along with that. It has worked well on some other 24 projects where we have asked for environmental 25 protection plans, specifically some bridges, and 5349 1 other lineal developments where we asked for EPPs, 2 and we thought we would do it again with these 3 proposals. 4 MR. ABRA: Okay. We are all aware 5 that there were 19, as you said, you have already 6 testified to Mr. Strachan, the 19 CEC 7 recommendations from the April 2002 meetings, 8 shall we say, that were held with the CEC. Now, 9 the 19 recommendations, not all of them became 10 part of the guidelines, did they? 11 MR. STRACHAN: That is correct. 12 MR. ABRA: What was the reason for 13 that? 14 MR. STRACHAN: Do you want all 19 15 reasons? 16 MR. ABRA: We have reviewed them and 17 you say that you were satisfied that indeed they 18 were indeed covered, but in some of the 19 instances -- the ones that you did not include, 20 can you tell us which ones they were and what the 21 reasons were? Because in most instances, upon my 22 review of them, they were kind of a one-word 23 answer? 24 MR. STRACHAN: I guess I haven't 25 looked at this recently, Mr. Abra, and what I'm 5350 1 looking at is the What You Told Us document that 2 we filed as a result of the public consultation on 3 the guidelines. 4 MR. ABRA: Right. 5 MR. STRACHAN: And we have detailed in 6 that document the 18, in this document, of Clean 7 Environment Commission recommendations. And it 8 will probably take me a little while to just 9 ascertain which ones we did not accept and the 10 reasons for that. And I can do that if you want 11 to give me the time to do that. 12 MR. ABRA: Maybe the best thing is -- 13 I don't want to waste too much of the 14 participants' time and the Commissions' time -- is 15 to give us an undertaking in that regard as to the 16 ones that were not implemented and what the reason 17 was. As I say, I don't have it sitting in front 18 of me right now either, I looked at it yesterday 19 but -- 20 MR. STRACHAN: The undertaking would 21 be just a copy of this section of the document -- 22 each and every recommendation has a comment. 23 MR. ABRA: I will provide follow-up 24 questions to you if we have any more then? 25 MR. STRACHAN: Sure. 5351 1 MR. ABRA: Thank you. 2 3 (UNDERTAKING MC-80: Advise which recommendations 4 from What You Told Us document were not 5 implemented and provided reasons why) 6 7 MR. ABRA: That is fine, thank you 8 very much. 9 THE CHAIRMAN: Mr. Mayer. 10 MR. MAYER: Mr. Strachan, I have a 11 question that I'm not sure you are going to be 12 able to answer, and if you can't, I would ask you 13 to take it as an undertaking, but I think you are 14 the only person from Conservation that I'm going 15 to get to talk to. Some time during the course of 16 the last 22 days, the Woodland caribou 17 conservation strategy for Manitoba was filed, 18 May 2000, by Manitoba Conservation. Are you aware 19 of that document? 20 MR. STRACHAN: I'm aware of that 21 document, yes. 22 MR. MAYER: I have developed quite an 23 affinity for these little animals, and some 24 interest. And I note in the executive summary 25 that it indicates that -- right at the end as a 5352 1 matter of fact -- this strategy will be reviewed 2 and updated every two years. 3 I have the 2002 document. I would 4 like to know if -- sorry, I have the May 2000 5 document, I would like to know if there is a 2002 6 update? If so, could we get a copy? If not, why 7 not, because it says there will be. And further, 8 if there was a further update done for May of 9 2004, which I recognize probably wouldn't be 10 complete right now, but whether one is intended? 11 MR. STRACHAN: I would have to take 12 that as an undertaking. I do not know that 13 answer. 14 MR. MAYER: Thank you. 15 16 (UNDERTAKING MC-81: Produce May 2002 updated 17 Woodland caribou conservation strategy, or advise 18 why not, and advise if update is contemplated for 19 May 2004) 20 21 THE CHAIRMAN: Other questions? 22 MS. TEILLET: Jean Teillet and Dan 23 Benoit for the Manitoba Metis Federation. My 24 questions really have to do with the harmonized 25 process that, or the cooperative process that you 5353 1 are administering. And I see there doesn't seem 2 to be anybody, or maybe there is something here 3 from Fisheries and Oceans or from CEA, and I don't 4 know whether it is appropriate to ask you about 5 the processes dealing with those requirements or 6 whether there is someone else who can 7 appropriately answer those questions. I don't 8 need a great deal of detail on them. I'm trying 9 to figure out whether the processes that you are 10 involved in are looking after the requirements of 11 everybody's needs under all of the Acts? 12 MR. STRACHAN: Why don't you ask your 13 questions and I will see if I can answer? 14 MS. TELLIET: My understanding is that 15 the project would require authorization under the 16 Fisheries Act, the Navigable Waters Act, and 17 approval under CEAA, the Canadian Environmental 18 Assessment Act; is that correct? 19 MR. STRACHAN: Yes. 20 MS. TELLIET: So the process that you 21 are administering here, by way of the EIS and the 22 review, et cetera, you would then be trying to 23 follow the requirements of CEAA? 24 MR. STRACHAN: Yes, the guidelines 25 that we have developed were developed with the 5354 1 intention of getting information from the 2 proponents to satisfy the regulatory requirements 3 of both the Provincial legislation and the Federal 4 legislation. 5 MS. TELLIET: So, in section 2 of 6 CEAA, the definition says that environmental 7 effects means any changes in the environment, 8 including the current use of lands and resources 9 for traditional purposes by Aboriginal people. So 10 in trying to determine the effects of this 11 project, you would be looking at that under CEAA 12 as well. 13 MR. STRACHAN: Yes. 14 MS. TELLIET: And also then in section 15 16 of CEAA, which says that the obligation is to 16 consider the environmental effects of the project 17 and the significance of those effects, you would 18 be looking at that as well? 19 MR. STRACHAN: When you say you as a 20 project administration team, that is correct. 21 MS. TELLIET: Sorry, I don't mean you 22 individually, Mr. Strachan. 23 I just wanted to ask, is the energy 24 that is being generated here going to be exported 25 out of Province? 5355 1 MR. STRACHAN: Energy, which energy, 2 in this room or from the project? 3 MS. TELLIET: From the project. 4 MR. STRACHAN: It is my understanding 5 that this project, if it goes ahead, will be for 6 export purposes, yes. 7 MS. TELLIET: Export to another 8 province, or export out of the country? 9 THE WITNESS: Out of the country. 10 MS. TELLIET: So if it is going to be 11 exported out of the country, is there a 12 requirement for National Energy Board approval? 13 MR. STRACHAN: I would not be able to 14 address that specifically, but I believe that 15 Hydro has addressed that earlier in this 16 proceedings. 17 THE CHAIRMAN: That's correct, and the 18 answer was no. 19 MS. TELLIET: They don't need NEB 20 approval. Thank you for clarifying that. 21 Now, just one or two more questions. 22 Are you aware of what the Federal Government's 23 process is after these hearings are finished? In 24 other words, do they have to prepare a separate 25 report that includes all of the materials that you 5356 1 have done that goes to their Ministers for 2 approval? Is that -- at some point does the 3 process get uncoupled, I guess that is what I want 4 to know? 5 MR. STRACHAN: Yes, it does. At the 6 end of the day there will be two independent 7 decisions made, one from Canada and one from 8 Manitoba. Canada needs to prepare what is known 9 as a comprehensive study report, make that report 10 available for public review, and then provide that 11 report to their Minister for decisions under the 12 Canadian Environmental Assessment Act. 13 MS. TELLIET: Is that report going to 14 be based on the information that has been gathered 15 to date, or is there a separate line of inquiry 16 going on somewhere else that will feed into that 17 report? 18 MR. STRACHAN: It is my understanding 19 that that process will generate information for 20 use by the Federal agency to complete their report 21 and provide advice to their Minister. 22 MS. TELLIET: By this process do you 23 mean this public hearing or the process that you 24 are administering? 25 MR. STRACHAN: Both, the process that 5357 1 we administered to date, and the advice that will 2 come from this public hearing. 3 MS. TELLIET: I have no further 4 questions. Thank you. 5 THE CHAIRMAN: Thank you. Further 6 questions? Ms. Phare. 7 MS. PHARE: We have two very quick 8 questions. Is there anybody on the TAC who has 9 experience, that you know of, dealing specifically 10 with cumulative effects assessment -- somebody 11 that you would characterize as having cumulative 12 effects assessment expertise? 13 MR. STRACHAN: Specifically, in terms 14 of are they expert in terms of cumulative effects 15 assessment -- I would say not. We would, and have 16 pretty much relied on the Federal members of the 17 technical advisory committee, who have more 18 experience than we do Provincially, to provide 19 advice on that. But I don't believe there is a 20 specific member on TAC that we could say would be 21 a cumulative environmental impact assessment 22 specialist, if that is where you are going. 23 MS. PHARE: Was there a specific 24 process for evaluating that component of the 25 environmental impact statement? I'm wondering 5358 1 what you compared it against to determine that it 2 was adequate, in your view? Because earlier you 3 stated that, according to the PAT at least, the 4 EIS was adequate, in your view; right? 5 MR. STRACHAN: No separate process, 6 same process, the technical advisory committee and 7 pubic review process, we sought advice on all 8 elements of the environmental impact statement, 9 including the cumulative impact assessment 10 section. 11 MS. PHARE: So there wasn't any 12 particular criteria necessarily -- I know that is 13 an awkward word because there isn't exactly 14 cumulative effects assessment criteria out there. 15 MR. STRACHAN: No, again, the review 16 process is the criteria that we would apply to 17 seek advice on that area. 18 MS. PHARE: My second question is 19 along a similar vein but dealing with traditional 20 knowledge. Was there anybody on your committee 21 who had experience specifically evaluating the 22 relationship or role of traditional knowledge in 23 the impact statement? Was that issue specifically 24 dealt with? 25 MR. STRACHAN: It was dealt with, but 5359 1 there was no specific TAC member for that purpose. 2 MS. PHARE: Thank you. Those are all 3 of my questions. 4 THE CHAIRMAN: Further questions? No 5 further questions. 6 MR. BEDFORD: Ms. Rosenberg is going 7 to ask the questions on behalf of Manitoba Hydro. 8 I have been benched for this round and we are 9 bringing out our star forward. 10 MS. ROSENBERG: She doesn't know what 11 to say next after that. Thank you. 12 Good afternoon, Mr. Strachan. I want 13 to ask you one or two questions about MEARA. 14 There has been some discussion about it here in 15 the hearings, and there was a question or two put 16 to you by Mr. Abra today. 17 I know you do have a recollection from 18 the beginning of what that process was and exactly 19 what MEARA constituted. Could you tell the 20 Commission that, please? 21 MR. STRACHAN: MEARA was a Government 22 policy, I guess it was developed in the early to 23 mid 1970s to provide an internal environmental 24 assessment process on Provincial sponsored 25 projects. It was an attempt, I believe, to 5360 1 address a deficiency in the existing legislation, 2 at that time the Clean Environment Act, which was 3 very contaminant related, addressing discharges to 4 air, land, and water, but didn't really encompass 5 an environmental assessment process. It was also 6 an attempt to provide Manitoba with a process of 7 environmental assessment review that was sort of 8 evolving across the country at that time. And it 9 was a front runner to the development of the 10 current Environment Act and the environmental 11 assessment process that we now administer. 12 MS. ROSENBERG: Am I correct in 13 understanding that there was an agency created in 14 regard to that process? 15 MR. STRACHAN: That's correct. 16 MS. ROSENBERG: Can you describe that 17 agency? 18 MR. STRACHAN: Again, an agency headed 19 by the Deputy Minister of our department and staff 20 persons, again, to administer the review of those 21 Provincial processes that might have undergone an 22 environmental process under the MEARA process. 23 MS. ROSENBERG: Thank you for that 24 background. I know you don't have a lot of 25 documents in front of you and this is ancient 5361 1 history, but the origins of the Augmented Flow 2 Program, my understanding is that there was some 3 review of that in accordance with the MEARA 4 process, and that a good deal of information was 5 requested and submitted. I have reviewed some 6 documents of that nature. Are you familiar with 7 any of that material? 8 MR. STRACHAN: I am familiar with some 9 of them, not all of them. I know there has been 10 documentation, I would say limited in nature, in 11 that regard. 12 MS. ROSENBERG: It doesn't in your 13 view constitute what we would think of today as an 14 environmental impact statement? Am I right? 15 MR. STRACHAN: Not at all. 16 MS. ROSENBERG: But it did involve 17 some consideration of environmental issues? 18 MR. STRACHAN: Yes. 19 MS. ROSENBERG: Thank you. Those are 20 my questions, Mr. Chairman. 21 THE CHAIRMAN: Any other questions? 22 MR. ABRA: Mr. Chairman, I have spoken 23 to Ms. McClellan. The seven areas about the NFAAT 24 that I asked for information on, with respect to 25 Ms. Hickson, Ms. McClellan has indicated that she 5362 1 doesn't require Ms. Hickson herself here -- if the 2 panel wants her, fine -- I'm asking for an 3 undertaking that we get the information from her 4 as to whether she studied any of those seven 5 items, and I expect that her answer to some or 6 many of them may be no. If it is, that is fine. 7 Any of the ones that she did review, we would like 8 to know what the results of her review were. 9 MR. STRACHAN: We can take that 10 undertaking. 11 MR. ABRA: Thank you. 12 13 (UNDERTAKING MC-82: Inquire of Ms. Hickson if she 14 reviewed seven items and provide results of 15 review) 16 17 THE CHAIRMAN: Thank you, at this 18 point -- Mr. Mayer. 19 MR. MAYER: Mr. Chairman, for the 20 record, we are about to adjourn, I believe -- we 21 are about to take a break. I just want to put on 22 the record, Mr. Chair, that despite the numerous 23 questions submitted by Canadian Nature Federation 24 to the team, we don't appear to have any 25 representative or any participation from Canadian 5363 1 Nature Federation for either this morning's 2 discussion or this afternoon's. I just make that 3 comment for the record, Mr. Chairman. 4 THE CHAIRMAN: Thank you. We will 5 adjourn for probably the next 20, 25 minutes, and 6 following that -- before we go to adjourn, we want 7 to talk with Manitoba Hydro/NCN panel whether we 8 could shift to the EIS after? That is agreed to, 9 so we will do that. 10 Yes, Mr. Bedford. 11 MR. BEDFORD: Mr. Chairman, yes, we 12 have anticipated the request, the panel is 13 available with I believe one exception, Mr. Ken 14 Adams is not available, but Mr. Wojczynski can 15 field questions directed at Manitoba Hydro. 16 THE CHAIRMAN: Thank you. 17 So, Mr. Abra, I believe you will begin 18 the process, and I think we have agreement from 19 MMF that they will begin, or take on, or start the 20 EIS cross-examination after. Is that correct? 21 MS. TELLIET: Yes. 22 THE CHAIRMAN: Thank you. We will 23 take about 25 minutes break. Convene here at 10 24 after 3. 25 5364 1 (PROCEEDINGS RECESSED AT 2:45 AND 2 RECONVENED AT 3:10 P.M.) 3 4 THE CHAIRMAN: Ladies and gentlemen we 5 will change gear and carry on with some of the 6 questioning on the EIS. Mr. Abra, are you ready? 7 MR. ABRA: Thank you, Mr. Chairman. 8 Members of the EIS panel, as one might expect, 9 because we have had a considerable break, there 10 were some areas that we decided we wanted to ask 11 some questions on. We had a chance to think of 12 more questions in the last couple of weeks. I did 13 indicate to you the last day when I was 14 cross-examining you that I just had one area to 15 go, which was sustainable development. I do now 16 have two more areas in addition to that, and they 17 are the component of culture as far as the 18 socioeconomic effects are concerned, and also the 19 issue of traditional knowledge. 20 Now, as we all know, as you are aware, 21 there are references to culture in particular as 22 part of the socioeconomic effects of the Wuskwatim 23 projects. And so I have a series of questions 24 related to that. Firstly, what is Hydro/NCN's 25 definition of culture as it pertains to the 5365 1 Wuskwatim environmental impact statements? 2 MR. OSLER: It is set out, and I don't 3 have the documents at all in front of me, but it 4 is set out in the socioeconomic section dealing 5 with personal, family and community life, as one 6 of the components. And I went through it at some 7 length with the cross exam from the First Nation 8 in waiting for South Indian Lake, 9 O-Pipon-Na-Piwin. So that was a section that I 10 covered in some length, and using the chairman's 11 instruction earlier we went through that 12 definition. 13 MR. ABRA: So the answers that you 14 have given related in particular to effects on 15 family and -- 16 MR. OSLER: Culture, you say what 17 does -- how does the EIS approach dealing with 18 culture. 19 MR. ABRA: What is your interpretation 20 of culture as it relates to the EIS requirement in 21 the terms of reference as to the fact that you are 22 to look at the impact on culture, in addition to 23 the various other impacts of the two projects as 24 they are referred to in the terms of reference. 25 MR. OSLER: And I'm saying it is dealt 5366 1 with in that section of the EIS -- if you give me 2 the text, I can review it again -- but I went 3 through it at some length in that cross exam 4 because we went through the overall definition, we 5 went through all of the nine different factors 6 that should be looked at and why they were this 7 way for South Indian Lake in the opinion of the 8 questioner versus Nelson House. So in a narrow 9 sense of culture that is how it is addressed. In 10 a broader sense, and I don't know how broad the 11 terms of reference would intend you to go, but the 12 socioeconomic analysis of personal, family and 13 community life which includes several other 14 factors, may also be considered to be what the 15 terms of reference would have in mind. 16 The narrow sense of dealing with 17 heritage resources is explicitly addressed in the 18 guidelines and in a separate section. In some 19 people's mind, one of the witnesses that appeared 20 before you from CNF, culture would include the 21 physical heritage aspects as well as the broader 22 cultural aspects that I'm referring to. 23 Mr. Abra, in volume 1, section 9, page 24 9-70, and I am repeating it and the chairman can 25 stop me whenever he thinks that I'm wasting time. 5367 1 Culture is a composition of values, beliefs, 2 perceptions, principles, traditions and world 3 views that are superimposed on one another and are 4 perpetuated through the language and kinship 5 system of a distinct group of people. Culture can 6 be manifested in the way people do things and the 7 way they think. And then we went through nine 8 indicators that professionals use to try and get a 9 grasp on this from the point of view of doing 10 these types of assessments. That does not mean 11 that that is the limiting approach that the terms 12 of reference for the Commission may have 13 envisaged, that we would be looking at some of the 14 broader factors that are laid out for personal, 15 family and community life, which include other 16 things than just culture, including wellness, 17 community organization, goals and plans of a 18 group. That is my answer. 19 MR. ABRA: So do I understand you to 20 say that the answer that you gave specifically, in 21 particular with respect to family and community 22 life, is what you consider to be the criteria, to 23 be culture as far as the terms of reference are 24 concerned? Did you do your study in that -- with 25 that definition? 5368 1 MR. OSLER: I would assume for the 2 purposes of the broader sense of culture that that 3 would address it to the extent that the terms of 4 reference had in mind the narrow aspect as well of 5 heritage, that is addressed separately in our 6 material, like the heritage aspects, physical site 7 resources, they are all covered one way or the 8 other between those two. 9 MR. ABRA: What about the scope 10 related to the definition of culture as far as the 11 First Nations and other Aboriginal communities are 12 concerned? 13 MR. OSLER: Could you repeat that? 14 MR. ABRA: The scoping, the scope, did 15 you examine the scope at all as far as the culture 16 is concerned? 17 MR. OSLER: In terms of which groups 18 we are looking at? 19 MR. ABRA: First Nations and other 20 Aboriginal communities. 21 MR. OSLER: In the generation EIS, 22 which is where I'm quoting from, I should have 23 been clear. I'm not back in training yet. 24 MR. ABRA: I understand that, none of 25 us are. 5369 1 MR. OSLER: It says that all of this 2 section that we are talking about here is focusing 3 on the local region, namely NCN, because the 4 extent to which we could have a meaningful effect 5 from this project on these factors appeared to us 6 to be in that geographic scope. That does not 7 mean that we weren't addressing potential issues 8 for people outside of that area with respect to 9 generation. Local area would be NCN, Nelson 10 House, as we have been through the definition at 11 great length from the cross exam from 12 O-Pipon-Na-Piwin, it also includes the people 13 living at South Indian Lake. To the extent that 14 way of life or culture would be affected by 15 Aboriginals elsewhere due to the generation 16 project, which would be I presume relating to 17 downstream water issues, there are opportunities 18 through the public involvement program to find out 19 if people had concerns in these areas. And we did 20 note in that section of the report, section 9, the 21 tendency for people to be concerned simply because 22 it was another generation project in the area 23 where their history in recent years had been that 24 any generation project was bad news for them and 25 that lead to stress and anxiety. We noted that. 5370 1 But it didn't in our view get us into a level of 2 the pathway that could lead to a meaningful 3 analysis of cultural effects at the level that I'm 4 talking about here. 5 In the transmission section we were 6 generally using the same philosophy but a much 7 less detailed level of analysis. And the scope 8 was defined by the study region that the 9 transmission looked at, which included not only 10 NCN in that area, but also all of the Aboriginal 11 communities and other communities in the area 12 where the transmission line is recommended to be, 13 or was indeed considered in terms of alternatives. 14 And in terms of trapping and Aboriginal activities 15 that way, there were a lot of very direct 16 consultations on that. And culture in terms of -- 17 the focus there was very much on culture in terms 18 of way of life through resource use in areas where 19 the transmission line would be, rather than 20 getting into the community issues that we got into 21 here. Maybe Mr. Hicks would like to elaborate. 22 Maybe he wouldn't too, I don't know. 23 MR. HICKS: I agree with that. 24 MR. ABRA: Back when we first started 25 this cross-examination on the issues of the EIS, 5371 1 we discussed at some length, of course, baselines 2 and they defined what baselines were and how they 3 related to the various components. With respect 4 to culture specifically, did you make any 5 determination at all as to what baseline to use 6 for the determination of what, if any, impact 7 there might be from the two projects on culture? 8 MR. OSLER: Yes. And generically 9 within the scope that we have just discussed, the 10 baseline was the world as at this point in time, 11 which means that it reflected the culture at this 12 stage. 13 MR. ABRA: As it exists now? 14 MR. OSLER: As it exists now and as it 15 seems to be evolving without the project. That's 16 the same -- I have given you that answer for all 17 sorts of things. The section that I was quoting 18 from, page 9-70, volume 1, was the baseline review 19 existing environment for culture, and it went on 20 for -- it goes on for two or three pages and it 21 goes through each one of these indicators, in 22 essence summarizing what is in the background 23 volume for the state with respect to language, 24 traditional knowledge, cultural practices, health 25 and wellness, world view, kinship, leisure, law 5372 1 and order, and cultural products today. 2 MR. ABRA: So I understand you to be 3 saying that the baseline is as things exist today, 4 much the same as you used for the other components 5 of the environmental impact statement as opposed 6 to what was existing back pre-CRD and so on? 7 MR. OSLER: Yes. If you read through 8 it it reflects and comments at times on changes 9 that have arisen before today and how they are 10 affecting people in terms of culture. 11 MR. ABRA: Over what geographic area 12 and what time frame did you assess the cultural 13 changes that may take place? 14 MR. OSLER: I think in terms of 15 geographic we just discussed that in terms of 16 scope. 17 MR. ABRA: That being NCN and South 18 Indian Lake? 19 MR. OSLER: With respect to the 20 generation project. In respect to the 21 transmission project, the whole study area that 22 was applicable to that project's assessment, which 23 included Cormorant and -- 24 MR. ABRA: The areas that Mr. Hicks 25 gave evidence on already. 5373 1 MR. OSLER: As well as NCN. 2 MR. ABRA: Okay. 3 MR. OSLER: In terms of time period, 4 in principle we were looking at the time period of 5 the construction period and the operations period. 6 That was the way in which we structured the 7 analysis and that is the way it is written up in 8 terms of doing effects, commenting on it. In 9 terms of the operations period, the focal point is 10 not specific to any one end date. It talks about 11 the process of how culture could be affected as a 12 result of the project, and if you go into the 13 operations period, a couple of the key things that 14 could affect culture would be management and 15 access to an area that NCN, for example, has not, 16 in terms of generation project, that NCN has not 17 in recent years had good access to for its 18 members, and how that could be positive and how it 19 needs to be managed to control any negative 20 issues. Also the ways in which the community 21 could make use of the income, if it invests in the 22 project, to further cultural objectives and 23 practices and other things that are commented on 24 in more detail. It doesn't have a particular end 25 date. It talks about it in the sense of how the 5374 1 operations period could evolve, looking at the 2 other factors that we talked about. 3 In the case of income, we know there 4 will be a period of time after you start operation 5 that income might tend to be at one level, and 6 when the equity loan is paid down the income would 7 go to quite a sizably different level. The 8 planning for that is very important with respect 9 to community impacts in general and in respect to 10 culture potentially also. 11 MR. ABRA: So culture is part of that 12 same aspect then? 13 MR. OSLER: Yes. Could I take a look 14 at a note, please? 15 Mr. Thomas is just making the point to 16 me to emphasize that from NCN's perspective that 17 culture is not a static thing, it is continually 18 evolving, it has before and it will continue to. 19 And certainly in all of our discussions with NCN, 20 if I didn't reflect that in my comments, I 21 intended to. 22 MR. ABRA: Okay. Dealing with culture 23 specifically, and your definition that you have 24 described for us, Mr. Osler, can you tell us -- 25 well, were you able to identify what adverse 5375 1 effects, the Wuskwatim, firstly the generation 2 project and then the transmission project would 3 have on culture, and can you give us three 4 examples of what adverse effects there might be 5 from firstly the generation project and then the 6 transmission project on culture alone? 7 MR. OSLER: I will. 8 MR. ABRA: You may have given that 9 answer already with respect to socioeconomic 10 generally, but if you could identify it with 11 respect to culture specifically. 12 MR. OSLER: And I will focus on 13 culture in the socioeconomic section. I think you 14 can well determine easily culture in terms of 15 physical heritage, element of the EIS, it is a 16 separate chapter, it is very clear, and the issues 17 that we have discussed several times on the 18 transcript in respect to physical. In terms of 19 culture for the generation project, page 9-81, 20 volume 1 of the generation project deals with 21 respect to construction. It has a potential to 22 affect four indicators that are considered to be 23 vulnerable at the present time. The first one was 24 language. 25 Mr. Abra, I'm going to read this 5376 1 because otherwise I could do a bad job of 2 summarizing it. Limited effect on language is 3 anticipated as a result of local residents working 4 and living at the construction site. Reduced 5 opportunities to speak their language, nehinawe - 6 we will spell it for you later - will occur namely 7 during seasonal periods during years three to six 8 of the construction. 9 Second one that is vulnerable is 10 traditional knowledge. NCN has expressed an 11 interest in continuing the work begun during the 12 environmental assessment study of collecting and 13 preserving traditional knowledge. 14 Third is cultural practices. Few 15 people have been able to visit the Wuskwatim and 16 Taskinigup Falls area until recent site ceremonies 17 in 2000. Beginning and during the construction 18 phase physical changes to the Wuskwatim Falls and 19 Taskinigup Falls area could affect the opportunity 20 to undertake cultural practices associated with 21 this specific area. However, limited access to 22 the area via the new access road could provide the 23 opportunity for residents once again to undertake 24 cultural practices associated with important 25 ceremonial sites in the Wuskwatim Lake area. And 5377 1 section 10.3 indicates that a management plan will 2 be prepared with respect to cultural and heritage 3 sites on the area. 4 The final one was health and wellness. 5 Health and wellness may be affected in positive 6 and negative ways by construction phases noted 7 above. 8 In terms of the operations issues, 9 they were addressed in the summary volume at page 10 9-85. And I think I have addressed them, but I 11 will just -- three indicators of culture 12 considered to be vulnerable in this context, we 13 talked about traditional knowledge, and the need 14 to continue to monitor and put contingency plans 15 in place to deal with elders' concerns about the 16 protection of the important ceremonial sites in 17 this area. Access, access management and access 18 to the southside of the Burntwood River over the 19 dam by the NCN members on a controlled basis would 20 allow for continued observation of the land that 21 has been interrupted by the CRD related travel 22 difficulties. New access to ceremonial sites 23 could bring new opportunities for cultural 24 practices by NCN members. Risks to the sites 25 through visits by others will be coordinated 5378 1 through the access management plan and the 2 cultural and heritage resources management plan, 3 which is in section 10.3. 4 Potentially effects on health and 5 wellness are noted. 6 MR. ABRA: Can you slow down a bit? I 7 can follow, but the reporter is having trouble 8 keeping up. 9 MR. OSLER: She has the advantage of 10 being able to go to the text. Potential effects 11 on health and wellness are noted above. Finally 12 in the long term if revenue available through 13 NCN's potential investment in the project is used 14 for cultural programming, then the vulnerable 15 indicators, including language, can be 16 strengthened. 17 That is a summary of what is dealt 18 with in more detail in volume 8 in a parallel way, 19 and it is summarized even more succinctly in the 20 residual effects section of the volumes. 21 MR. ABRA: Mr. Hicks, did you have any 22 comment with respect to the transmission line in 23 particular? 24 MR. HICKS: Just to add that the 25 approach, as Cam said, was similar, but perhaps a 5379 1 little differently focused in that the principal 2 risk, I suppose, of effects on culture associated 3 with transmission would be in the operating period 4 rather than during the construction period, 5 because the construction period is so brief and is 6 essentially relatively remote from the communities 7 that are involved. But the residual effects that 8 we have identified in the EIS for the transmission 9 lines include the presence of the lines, the 10 effect on vegetation and habitat, and the 11 potential effect on access. I think the concerns 12 about culture which were elicited in the course of 13 the public involvement program with all of the 14 communities affected or potentially effected, both 15 NCN and others, had to do with the potential 16 relationship between those residual effects and 17 lifestyles or activities of the people in the 18 affected communities. So to the extent that an 19 alteration in habitat might affect wildlife and 20 harvest activities, then there was concern 21 potentially about culture and that would be 22 addressed through the course of the public 23 involvement process and was addressed in the 24 residual effects. 25 MR. ABRA: So the residual effects 5380 1 then that you see with respect to culture would 2 really be an outgrowth, shall we say, of the 3 residual effects that may result from the 4 transmission lines themselves? 5 MR. HICKS: I would say for the most 6 part an indirect effect associated with the 7 residual physical effects of the line. 8 MR. ABRA: So the mitigation steps 9 that you intend to take then with respect to the 10 residual effects for the transmission line 11 hopefully will in turn impact the indirect effect 12 on culture? 13 MR. HICKS: To use an example, the 14 whole question of access management both to 15 improve access for NCN members in that particular 16 case, or to limit access by outsiders is I believe 17 directed right at that issue, possible effects on 18 culture and possible effects on resource harvest 19 activities within the affected zones around the 20 transmission line. 21 MR. ABRA: Mr. Osler, sorry. 22 MR. OSLER: This is the background 23 volume for the transmission series which was on 24 socioeconomics, volume 7, and page 7-56 deals with 25 culture in terms of the existing environment. 5381 1 Page 7-72 deals with cultural effects from the 2 transmission for the purposes of the Commission 3 wanting to review where these were directly 4 addressed. It is very brief in terms of effects 5 because of the things that Mr. Hicks was just 6 talking about. 7 MR. ABRA: Is there any monitoring 8 that is intended after the completion of the two 9 projects as far as culture specifically is 10 concerned, in addition to the monitoring or 11 distinct from the monitoring that is going to be 12 done with respect to the other residual effects 13 that have been described already? 14 MR. OSLER: From page 9-96 of the 15 generation summary volume, the post construction 16 phase or pre-construction and construction phase 17 monitoring under community health, social 18 well-being and culture says the following, 19 Monitoring of community health, social well-being 20 and culture will be undertaken at Nelson House. 21 This will be coordinated with physical, 22 biophysical -- 23 MR. ABRA: Slow down, Mr. Osler. 24 THE WITNESS: "This will be 25 coordinated with physical, biophysical and 5382 1 resource use monitoring. Results will be used to 2 inform NCN, including key service providers 3 Manitoba Hydro, and community residents and has 4 inputs to management of effects." 5 And in terms of the operations, page 6 9-97, says there will be continued monitoring of 7 each one of these factors, health, social 8 well-being and culture at Nelson House. And the 9 monitoring of water levels in Wuskwatim Lake in 10 relationship to important ceremonial sites and 11 follow-up contingency plans is one area that has 12 been highlighted. It will be coordinated with the 13 physical, biophysical and resource use monitoring, 14 and the same type of comments. The key thing that 15 flows from the types of assessment that we make, 16 and therefore affects this monitoring in the case 17 of generation, is we again are looking at Nelson 18 House community, we are looking at concerns elders 19 had with respect to water and any potential 20 effects on ceremonial sites, either from water in 21 doing unexpected things despite what the engineers 22 and scientists say, or alternatively people using 23 the area doing unexpected things or unacceptable 24 things. And thirdly the desire for NCN to have 25 better access to this area for its own cultural 5383 1 purposes. 2 So monitoring in this sense become 3 much more embedded with how NCN works with itself 4 internally and laterally with Manitoba Hydro in 5 how it manages these concerns and deals with them 6 directly and reports back to its community on a 7 regular yearly basis, so that people have a chance 8 to interact and discuss some concern that isn't 9 being addressed is now addressed, or some 10 opportunity is being pursued that should be 11 pursued, or let people know that things are going 12 well, and maybe they should come out next year 13 when we go out. 14 So it is more of a proactive process 15 of community management than it is, go and monitor 16 a bunch of data from a machine, if you understand 17 that. 18 MR. ABRA: Yes. 19 MR. OSLER: Culture and heritage 20 committee I'm being reminded in Nelson House is 21 set up to monitor broadly cultural and heritage 22 issues, including the ones that I'm talking about 23 but also including the ones that are physical 24 heritage concerns. And all of the monitoring that 25 we talked about before about how there will be an 5384 1 archeologist on site to make sure if any concerns 2 arise in the process of construction to deal with 3 heritage resources, they will be dealt with. 4 MR. ABRA: Thank you. Turning to 5 traditional knowledge, the Commission, as we all 6 know, has heard a lot of testimony about how 7 traditional and local knowledge was used to 8 identify and mitigate potential adverse effects. 9 With that in mind, how was the traditional and 10 local knowledge used to assess the adversity of 11 the environmental effects after they were 12 identified and before you decided what steps 13 should be taken to mitigate? 14 MR. OSLER: Your question specifically 15 is how was traditional knowledge used for 16 assessing effects? 17 MR. ABRA: It is sort of an issue of 18 not only how but when. We are talking -- there 19 has been -- you have given a lot of evidence up 20 until now about traditional knowledge and how it 21 was used with respect to the original planning. 22 And we have heard a lot of evidence in that 23 regard. We are talking now in terms of a step 24 forward. You used traditional knowledge. You did 25 your planning, and have identified what some of 5385 1 the effects may be, and you have identified, you 2 know, what steps will be taken to mitigate and so 3 on. What we are asking now is as far as the 4 identification of the mitigation is concerned, how 5 was traditional knowledge used in that regard? 6 MR. OSLER: Well, okay, in terms of 7 mitigation as such, a good example with respect to 8 generation would be the loss of the falls. The 9 mitigation measures laid out relate to mitigating 10 the concern of elders and NCN with respect to 11 doing proper ceremonies and dealing with this 12 change in a respectful manner, given the heritage 13 and the culture. So mitigation measures in that 14 instance flowed very directly from traditional 15 knowledge and discussions with people who were 16 involved from that point of view. 17 MR. ABRA: As to what they wanted seen 18 done? 19 MR. OSLER: What they thought would be 20 appropriate to do from a traditional knowledge 21 perspective. I wouldn't have a clue what to do 22 from that perspective, and the only way you get a 23 clue is to do it through traditional knowledge 24 input. I have given this example before, but a 25 little bit different example would be the one that 5386 1 I was just referring to about ceremonial sites in 2 the neighborhood of Wuskwatim. Very important 3 sites to NCN. There is no evidence that we are 4 aware of, from the perspective of engineers and 5 technical people, that there should be any concern 6 from this project causing water effects upon those 7 ceremonial sites. Nonetheless, the elders have 8 expressed concern and they want it monitored, and 9 they want people to talk about how they would 10 mitigate it in the event that such concerns began 11 to emerge, regardless of what the scientists say. 12 I don't know whether that is pure traditional 13 knowledge, but it is certainly dealing 14 respectfully with people who have traditional 15 knowledge and have concern about the traditional 16 aspects of their culture. And therefore, it has 17 been dealt with in a respectful way, saying that 18 that type of monitoring has to be done, no matter 19 what the scientific side is saying. It has to be 20 done in a way that is satisfactory to NCN and the 21 heritage and cultural elements of the NCN 22 community. 23 I have given you two specific 24 examples, they are quite different. In that sense 25 by actively involving the people that have been 5387 1 mentioned from time to time here by myself or by 2 Elvis, that type of approach has been taken with 3 respect to any area where NCN' members and 4 participants and elders who are involved think 5 that this project could affect their culture or 6 their traditional knowledge, could affect them in 7 a cultural way, which is really a reflection, if 8 you like, in the context of your question, of 9 traditional knowledge. If you get into more 10 specific things like trapping, or activities like 11 that, they are addressed through the resource use 12 activities and through the monitoring of those 13 activities. But I assume that we are dealing with 14 a broader level as to what the nature of your 15 question is. Have I dealt with what you are 16 looking for? 17 MR. ABRA: Just one other component to 18 it. Were NCN members who were outside the study 19 team provided information on the residual effects 20 and were they involved in the evaluation of the 21 significance? 22 MR. OSLER: Well, the study team, that 23 it means the people that you see here, there are a 24 lot of other people involved in the process of 25 discussions. We went through workshops with NCN 5388 1 in the fall, October, November, 2002, when we had 2 the preliminary findings to do with the EIS, so we 3 went through the same material that people -- that 4 the general consultation process went through. We 5 went through it in a lot more detail with NCN. 6 The material was delivered home to home and there 7 were workshops in both a large group session, 8 workshops with many members of the NCN future 9 development team and other community consultants 10 team, in this very room in that time period. 11 There was a forum in the community. There were 12 small group sessions of a variety of types with 13 elders, women, youth, other groups, resource users 14 to go over the preliminary findings in the way of 15 informing them about them and to get their views 16 as to what they meant. In that sense people were 17 informed and their views on significance, if you 18 like, were sought. 19 In a technical sense of doing a 20 significance analysis, I think that the evidence 21 we have given several times is, it tends to be 22 under the guidelines we are given more scientific 23 than a public consultation type of ultimate role. 24 In that sense the technical analysis was done 25 primarily by this team with the inputs of the NCN 5389 1 future development team, community consultant 2 team, those type of people. But it was based on 3 conversations of the type that I just described in 4 late 2002, and probably some other ones that 5 occurred that I'm not referring to in 2003. And 6 I'm sure that Stuart went through the biophysical 7 elements in 2003 before we filed the EIS. 8 MR. DAVIES: There were a number of 9 workshops and meetings with community members 10 regarding the residual effects of the project. 11 And we had mentioned earlier that there was about 12 six or seven hundred fairly large documents that 13 were distributed, one to each household in Nelson 14 House, that very clearly described all of the 15 biophysical effects of the project. 16 Just one example on how the input from 17 the community did shape the significance, or the 18 findings of significance, particularly in regards 19 to the magnitude of the effect was medicinal 20 plants. When the study team looked at the 21 potential effects on medicinal plants it was more 22 from a point of view that the area affected would 23 be relatively small because of the rehabilitation 24 and also because of the relatively small area that 25 would be used for camp sites and camp 5390 1 construction. The magnitude of the effect was 2 actually larger to that for NCN members because of 3 a cultural view that in an area that was being 4 affected by the project, the individual plant or 5 the items that were being used for medicinal 6 purposes lost their power, if there was a 7 development in the area. It didn't necessarily 8 have to be directly impacted by the project, just 9 the fact that a project was there did have an 10 effect on medicinal plants. So those points of 11 views were taken from the NCN members and they are 12 reflected in the EIS. 13 MR. ABRA: Mr. Hicks, you have given a 14 lot of evidence to date about the steps that were 15 taken to consult, and in particular with respect 16 to the impact of traditional knowledge for the 17 planning of the transmission line and so on. Is 18 there anything that you want to add? For example, 19 you have identified that the transmission line was 20 planned with taking into consideration a lot of 21 the concerns expressed by the various communities 22 that were going to be impacted with the route that 23 you planned and certain adjustments that you made 24 to the route as a result and so on. Once you had 25 made those determinations, did you go back and 5391 1 consult again with the communities and get any 2 more input from them in that regard, in particular 3 with respect to traditional knowledge, as to what 4 the effects may be with the revisions that you had 5 done, or after the initial consultations that took 6 place before the route was actually decided on? 7 MR. HICKS: The first round of 8 consultation or public involvement, as you 9 mentioned, was directed to incorporating, finding 10 local and traditional knowledge that would help us 11 in the routing process. The second round of 12 consultation and public involvement dealt with the 13 preferred routes and the sorts of effects and 14 impacts that we believe would be associated with 15 those routes. So, yes, in the second round, the 16 community meetings, the open houses, the sessions 17 with resource harvesters were directed to trying 18 to find out more about their views as to the 19 effects that we are identifying, and as to the 20 their significance. And there will be a third 21 round as well as a result of the monitoring. I 22 fully expect that there will be ongoing contact 23 with the elders and other resource harvesters in 24 the community with a view to establishing whether 25 or not their expectations have been borne out. 5392 1 MR. ABRA: Okay. 2 MR. DAVIES: Both in regards to 3 traditional knowledge and culture, I just wanted 4 to make a point that volume 7, the resource 5 harvesting volume, does contain a significant 6 amount of that because of the close link between 7 cultural and traditional lifestyle. 8 MR. ABRA: I would like now to turn to 9 sustainable development. Can you tell us what 10 Manitoba's principles and guidelines of 11 sustainable development are? 12 MR. WOJCZYNSKI: Do you want a quick 13 listing of what they are, or do you want -- when 14 you say what they are, should we just list them 15 out for you or do you want a more general? 16 MR. ABRA: More general interpretation 17 for what they are for Manitoba, and then we will 18 get to Hydro's because I understand they are 19 different. 20 MR. WOJCZYNSKI: They are very 21 similar -- 22 MR. ABRA: You have your own program 23 of sustainable development as distinct from that 24 of the province, as I understand it. 25 MR. WOJCZYNSKI: Yes. Although in 5393 1 considering the Wuskwatim project and preparing 2 the I and R planning and in thinking about this 3 process, we gave greater consideration in the end 4 to the Manitoba principles than we did the 5 Manitoba Hydro one. But we paid attention to 6 both. 7 MR. ABRA: Okay. 8 MR. WOJCZYNSKI: Generally -- 9 MR. ABRA: You have answered one 10 question already. 11 MR. WOJCZYNSKI: Generally the 12 principles and guidelines, there is both 13 principles and guidelines. The principles are the 14 higher level conceptual -- well, principles that 15 the province instituted with its Act a few years 16 ago, or a number of years ago, to guide the 17 province and the various agencies in the province 18 and various activities such as environmental 19 licencing, what are the principles that should be 20 applied in this province considering sustainable 21 development. And then there were seven 22 principles, and there was also six guidelines that 23 are more application oriented, but are also often 24 thought about together. So there is seven 25 principles and six guidelines. 5394 1 MR. ABRA: What is sustainable 2 development? 3 MR. WOJCZYNSKI: You can go back to 4 the Brundtland Commission and you can go to 5 various definitions, one could simply take the 6 view that it is the use of our resources today in 7 a wise manner so that our future generations also 8 have access and have availability of those 9 resources, and we should be thinking of the future 10 generations as well as the current generation. 11 MR. ABRA: Now, as we just discussed a 12 few moments ago, Hydro does have its own 13 principles and guidelines of sustainable 14 development which, as you say, are very similar to 15 those of the province, but they are your own as 16 opposed to being the province's. Is it the 17 province's that you are intending upon adhering to 18 with respect to Wuskwatim, is that what you are 19 trying to say? I'm not trying to put words in 20 your mouth. 21 MR. WOJCZYNSKI: Both. It might be 22 easier for me to speak to the Provincial one, I 23 could speak to the Manitoba Hydro one, but in the 24 end it is consistent with both. 25 MR. ABRA: If you could tell us how 5395 1 you are planning to apply the Provincial one? 2 MR. WOJCZYNSKI: The easiest would be 3 for me to go through them one by one, and if I'm 4 going into too much detail, let me know and I will 5 cut back. I am not sure how much you want me to 6 go into this. It may be -- it may make it easier 7 for some that we did detail our thinking on this 8 in the interrogatory process in response to 9 Canadian Nature Federation round 2, EIS 9A. It is 10 not necessary for you to have it, but if you want, 11 it is there to reference. But I could perhaps use 12 my own words rather than read it out, that might 13 be more useful. 14 The first principle from the 15 Provincial point of view, it is also a Manitoba 16 Hydro one, they are all virtually the same, there 17 is a few that are more customized in the Manitoba 18 Hydro case, but in the Provincial, integration of 19 environmental and economic decisions. If you go 20 into the Provincial description, it talks about, 21 in my own words, that when you make economic 22 decisions, you should consider the environment, 23 and when you make environmental decisions you 24 should consider the economy. But it also goes 25 beyond that to talk about health and social 5396 1 effects. And you could think of that first 2 principle as being what many people today refer to 3 as the triple bottom line, where you integrate 4 social, environmental, and economic factors 5 together. 6 If you think about that as the first 7 principle, how do we apply that in Wuskwatim? The 8 first area you that you would look at is in the 9 design and planning for Wuskwatim itself. When we 10 were working with NCN together and trying to 11 figure out, well, if we were going to develop 12 Wuskwatim, what would it look like? So we were 13 doing that planning and we were doing the design. 14 And you have heard much from us over the last long 15 while, and I won't repeat it all, but there is the 16 low head design, very fundamental to integrating 17 economic and environmental, that is the best 18 example. We gave up a lot of economic power 19 potential by doing that, and we made the project 20 on a per unit basis more expensive, more costly, 21 but we did that to minimize the environmental and 22 social impacts, the adverse ones. 23 We did a whole bunch of other things 24 from an environmental point of view and design 25 point of view that you have heard about, whether 5397 1 it is roads, joint planning. We have enhanced the 2 social benefits of the project through things like 3 pre-project training, and through employment 4 preferences, and through other aspects. So in the 5 design and planning, we did a number of 6 initiatives. 7 From a resource selection point of 8 view, when we were deciding what should our 9 resource plan be, that goes beyond just Wuskwatim. 10 We considered Wuskwatim, to other resources, 11 thinking not just about the economic factors but 12 also the environment, and the social, and the 13 socioeconomic, a full range of factors. And as we 14 explained earlier in the process, our resource 15 plan is not just a Wuskwatim. We have got a 16 balanced portfolio where we have got DSM, supply 17 side efficiency improvements, for example, wind 18 alternative energy. So we have a portfolio that 19 balances the economic and environmental and other 20 factors. So that is part and parcel of our 21 application of sustainable development principles. 22 So that is the first one. Is that too 23 much detail or is that -- 24 MR. ABRA: Maybe a little bit. 25 MR. WOJCZYNSKI: I will shorten it a 5398 1 bit. 2 THE CHAIRMAN: And it is all in the 3 book. 4 MR. WOJCZYNSKI: I'm expanding 5 slightly and simplifying. 6 THE CHAIRMAN: Why not say that one 7 cannot happen without the other? That would be 8 shorter. 9 MR. WOJCZYNSKI: I will be shorter, I 10 will be quicker. 11 Number two, stewardship, really talks 12 about inter-generational equity. In the short 13 term what we are doing with Wuskwatim is providing 14 benefits to Manitobans and others, particularly in 15 the north, but all of Manitobans, jobs, training, 16 business opportunities. In the long term, we have 17 a source of energy for society. There is an 18 income in the province. For people, we have a low 19 environmental impact project, and in terms of the 20 globe, and the long term, less greenhouse gases. 21 So that is stewardship, inter-generational equity. 22 The greenhouse gases, particularly, the benefits 23 are more 100 years from now than they are today. 24 Third one is shared responsibility and 25 understanding, and you might think of it for all 5399 1 Manitobans. And what we have done is, you can 2 start with our work in NCN, we are doing this as a 3 partnership, so that is certainly considering 4 Manitobans. But we have done extensive 5 consultations in our planning process, and we have 6 got benefits that will go beyond, for instance, 7 just NCN, it is other Aboriginal people in the 8 north and all of Manitobans. So that is thinking 9 about all of Manitobans and taking their 10 viewpoints into account. 11 Prevention, clearly to recent impacts, 12 we have done a lot of things to prevent impact 13 from Wuskwatim. I won't repeat all of those 14 things that we have talked about before. And in a 15 sense, an element of it is the precautionary 16 principle. That work it is not used in the 17 Provincial principle, but the thought is actually 18 there, and you can think of greenhouse gas 19 reductions, which is the single biggest 20 precautionary measure that is being done. We are 21 not absolutely certain that greenhouse gases will 22 cause negative effects, but we think so, and this 23 is one action that will help to reduce them. 24 Conservation enhancement -- Wuskwatim 25 is a renewable resource, we are doing 5400 1 rehabilitation -- when we are temporarily clearing 2 some areas, we are going to rehabilitate them on 3 the construction site. We have a very 4 comprehensive environmental assessment and 5 determined that there will be no significant 6 adverse impacts, and that was by design, of 7 course. 8 We are going to take measures within 9 the control of NCN and Hydro, to the degree that 10 we have control, to ensure that the harvest of 11 natural resources will be done sustainably. 12 Rehabilitation and reclamation -- we 13 are going to, obviously on the construction site, 14 we will reclaim there, we will reclaim. But more 15 importantly, the Wuskwatim Generating Station will 16 mitigate some previous impacts on Wuskwatim Lake, 17 for example, and local lake peatlands. 18 Maybe I should mention -- and this 19 isn't in a write up so I'm adding a little bit as 20 we go along -- the project overall, if you look at 21 the EIS, was judged to have an overall social net 22 benefit. So to the degree that our projects in 23 the past, going back to CRD, did have clearly 24 negative social impacts on the people in the 25 north, a project like Wuskwatim will be, at least 5401 1 directionally will be providing an overall social 2 net benefit, and we view that as being consistent. 3 The last principle is global 4 responsibility. Again, the greenhouse gas aspect 5 is probably the most important thing that is worth 6 mentioning. 7 That might be sufficient. There is 8 also the guidelines, and I can go through that, 9 but I have a feeling that that probably satisfies 10 you. 11 MR. ABRA: As you said, your own -- 12 when I say your own, I mean Hydro's principles 13 are, it is a different list shall we say, but in 14 essence what you are saying is it basically is the 15 same as that of the province, it is just a 16 different way of saying the same thing? 17 MR. WOJCZYNSKI: Yes, and what we did 18 in the company is we took the Provincial ones and 19 said, well, Manitoba Hydro has a more narrow focus 20 than the whole Province, so how can we focus the 21 Provincial sustainable development principles to 22 focus more sharply or our kinds of activities. So 23 we massaged them, and we worded and focused them 24 more on our activities. But fundamentally they 25 are the same. If you wanted to, I could do a one 5402 1 to one comparison, but that would take a few 2 minutes. 3 MR. ABRA: I don't think that is 4 necessary -- unless the Commissioners want to hear 5 it. I think the looks tell me the answer. 6 THE CHAIRMAN: It was one area that I 7 was particularly interested in, so I reviewed it 8 in depth. 9 MR. ABRA: Sustainability indicators, 10 what are they? 11 MR. DAVIES: It is my understanding 12 that in 2001 there were recommendations made to 13 the Province in regards to sustainability 14 indicators, and just using for an example, fish, 15 the indicators are the commercial fisheries, the 16 sport fisheries and biodiversity. Similarly, with 17 wildlife I can read you some of the -- for 18 wildlife it is the status of endangered, 19 threatened, rare, and extripated species, status 20 of exotic species, whether they are in the area or 21 not, migratory game bird population. 22 For air it is urban air quality, 23 greenhouse gas emissons, sulphur dioxide 24 emissions, indicators for air health and indoor 25 were also recommended. For forest it is forest 5403 1 type and age class, AAC or allowable annual cut, 2 and the area harvested versus reforested. For 3 soil it is quality, erosion on cultivated land. 4 And there is a few additional ones, if you would 5 like me to go through them. 6 MR. ABRA: Generally, what are 7 sustainability indicators, as you understand them? 8 MR. DAVIES: Again, using fish as an 9 example, if you are monitoring the commercial 10 fishery and you see that the harvest is 11 continually declining, it gives you a good 12 understanding, it is an indicator that you are 13 over-harvesting that lake and that you are using 14 the resources of the future today that you 15 shouldn't be using. Same with sports fishery, if 16 you are going out and you are catching fewer fish, 17 and the fish you are catching are smaller, again, 18 you are taking too much today and you are 19 jeopardizing the interests of the future 20 generations. So those are the indicators that you 21 can tell whether or not you are taking too much 22 today. 23 MR. ABRA: And that would apply to any 24 environmental effect, I suppose, would it? If you 25 see a detrimental impact then you are going too 5404 1 far, as far as using the example of fish is 2 concerned? 3 MR. DAVIES: In regards to fish it 4 holds. In other areas such as wildlife it is a 5 little different. Again, you are looking at 6 things like exotic species. Are you having an 7 impact in the north and are you spreading things 8 like purple loose strife? It is, again, basically 9 something that you can use to determine whether 10 you are having an effect that may be over the 11 thresholds that you should be having that effect 12 on. 13 MR. ABRA: Are you familiar with 14 Manitoba's sustainability indicator initiative? 15 MR. DAVIES: Yes, I am. 16 MR. ABRA: What is it? 17 MR. DAVIES: I don't have a 18 definition. I would have to take that as an 19 undertaking. 20 MR. ABRA: All right. 21 22 (UNDERTAKING MH-83: Advise re Manitoba's 23 sustainability indicator initiative) 24 25 MR. ABRA: Have you considered the 5405 1 development of sustainability indicators for the 2 Wuskwatim generating and transmission projects? 3 MR. DAVIES: Yes, we have, looking at 4 wildlife again, looking at the status of 5 endangered, threatened, rare and extirpated 6 species, that was one category that was looked at 7 in depth. The second category, the status of 8 exotic species was also looked at, in particular 9 with regards to invasive plant species, mitigation 10 was identified in regards to that. Migratory game 11 bird populations were looked at under the bird 12 sections. There was a recommendation for 13 indicator, a species list to be developed, but we 14 did take a look at all of the species that were in 15 the area and did record them as part of the EIS. 16 We did the same for the other components. 17 MR. ABRA: Okay. Assuming for a 18 moment that you are required to do an 19 environmental protection plan -- and from the 20 evidence a couple of hours ago, that still seems 21 to be up in the air -- but assuming for the moment 22 that you are, would it be appropriate to include 23 sustainability indicators in such an environmental 24 plan? 25 MR. DAVIES: In a lot of areas the 5406 1 sustainability indicators already have been 2 identified. It is part of the monitoring program 3 where we have identified things like monitoring 4 commercial harvest on Wuskwatim Lake. 5 MR. ABRA: That all goes to the issue 6 of sustainability indicators? Monitoring is 7 really a significant component of it, obviously. 8 MR. DAVIES: Monitoring is a 9 significant component of it. We don't necessarily 10 refer to it is an indicator, but we do refer to 11 the actual thing that is being monitored. In a 12 number of cases, whether it is invasive species, 13 biodiversity, or commercial harvesting, they are 14 identified as such in the monitoring programs, and 15 the monitoring programs will be identified and 16 attached to the environmental protection plans as 17 an appendix. 18 MR. ABRA: If I might have a moment, 19 Mr. Chairman, I will try not to be unduly 20 repetitive. 21 For the benefit of all of us, me in 22 particular, what is an environmental management 23 system? 24 MR. WOJCZYNSKI: I guess I'm probably 25 the right person to answer. I'm so used to having 5407 1 the environmental team answer environmental 2 management questions. 3 MR. ABRA: They all seem to be looking 4 at you. 5 MR. WOJCZYNSKI: They are called the 6 environmental management team so -- our 7 environmental management system, different kinds 8 of companies have their own, but in the electric 9 utility industry what it is, we have developed 10 jointly an approach for electric utilities to be 11 managing their environmental issues, and you have 12 to have documentation, you have to have certain 13 principles and approaches, and you follow through 14 on those, and we have to have a commitment to 15 doing that. And then we essentially get reviewed 16 to determine that we are following this through, 17 and we will get independent people to come in and 18 see that we are doing that. 19 Manitoba Hydro has adopted an 20 environmental management system and has it 21 operational. And that is true either at the plant 22 floor, or in the management at the highest level 23 of the corporation, and everywhere else in 24 between, including in the planning. And the kind 25 of consideration of the sustainable development 5408 1 policies and principles and guidelines -- for 2 instance, an element of environmental management 3 system is when we are doing the planning that we 4 include explicitly those kind of factors. 5 MR. ABRA: What is the ISO 14001 6 standard. 7 MR. WOJCZYNSKI: ISO 14000 is an 8 international -- ISO stands for international 9 standards organization. Essentially, it is a 10 standard developed for environmental management. 11 You have to develop a very detailed plan and 12 responsibility and system and you have to follow 13 through. You have independent auditors come and 14 evaluate, and it is a very rigorous system to 15 ensure that a company has all of the processes in 16 place, all of the degrees of responsibility very 17 clearly outlined, and the internal reporting -- 18 and we have, for instance, there is requirements, 19 for example, to maintain your ISO you need to have 20 a continuous improvement from an environmental 21 performance point of view. So it is taking 22 something like the environmental management system 23 and taking it, you could think of it as taking it 24 a notch up by actually having a formal 25 certification process with an external auditor. 5409 1 MR. ABRA: I was just going to ask, is 2 your environmental management system consistent 3 with that standard? 4 MR. WOJCZYNSKI: Yes, and we actually 5 have, in our generation we are ISO 14000 6 compliant. 7 MR. ABRA: That is the term that is 8 used, you are compliant? 9 MR. WOJCZYNSKI: Yes. And we are 10 quite proud of the fact that we have been doing 11 work in the area not just -- until recently the 12 thinking was you do it on a plant by plant basis, 13 it is like a factory, so each individual factory 14 has got a plan and a management system. What we 15 have -- we did that a number of years ago for our 16 various generating stations, both thermal and 17 hydraulic, and we have more recently gone and done 18 it on a business unit basis, so that we have 19 actually our whole business unit has gone through 20 the environmental management system and the ISO 21 kind of compliancy. So we were quite proud of 22 that, that we achieved that. 23 MR. ABRA: There will be an 24 environmental management system put in place for 25 the Wuskwatim projects, the two projects? 5410 1 MR. WOJCZYNSKI: We have an 2 environmental management system for all of our 3 generation, and it will be automatically extended 4 and incorporate Wuskwatim. 5 MR. ABRA: To include Wuskwatim? 6 THE WITNESS: Yes. For instance, we 7 have the generating stations on the Lower Nelson, 8 for example, they are part of that, and Wuskwatim 9 will be part of that during the construction phase 10 as well as during the operation phase. 11 MR. ABRA: Is there a reporting 12 function with respect to your EMS then? 13 MR. WOJCZYNSKI: Yes, we do have 14 internal reporting. 15 MR. ABRA: Within the company? 16 MR. WOJCZYNSKI: Yes. 17 MR. ABRA: Can you explain to us 18 briefly how that is done? 19 MR. WOJCZYNSKI: We have a central 20 group that looks after that, and a committee, and 21 we have a coordinator who reports at a high level, 22 essentially at the executive level. And we have a 23 formal system in place. We have review meetings 24 at division and department level. We, on an 25 annual basis, formally assess how we are doing, 5411 1 and people come and essentially audit how we are 2 doing. We have internal audit people who do that, 3 whereas the ISO has got more of an external 4 component. So the EMS, environmental management 5 system, we have an internal system for the 6 checking and auditing. 7 MR. ABRA: Okay. That is fine. Thank 8 you very much for your assistance. Mr. Rempel, I 9 am sorry. 10 MR. REMPEL: I would like to make a 11 comment with respect to the environmental 12 protection plans. You mentioned there was some 13 doubt as to whether there will be one. Manitoba 14 Hydro and NCN have said in the various, well, in 15 volume 1 for the generation project, for example, 16 section 4, page 4-23, they have said they will 17 develop a project specific environmental 18 protection plan. I believe that they have filed 19 some sample table of content with you. I do know 20 it is Manitoba Hydro's practice to do 21 environmental protection plans. They did one for 22 the Lower Churchill Weir. I know they have done 23 some in the recent transmission line projects. So 24 the intent is there to provide the environmental 25 protection plans. 5412 1 MR. ABRA: Thank you very much. 2 THE CHAIRMAN: I would like to pursue 3 some questions that I wanted to ask under the 4 cultural component a while ago, but I didn't want 5 to interrupt Mr. Abra's flow. I wanted to maybe 6 put that in at the end of those questions, and 7 then without my realizing it, he went to 8 sustainable development. And I thought, well, I 9 will get it in there. Then he went to some other 10 issues before I had a chance to. But I think it 11 relates to the cultural component and the 12 sustainable component, sustainable development 13 component. 14 Some time ago, on April 8, I guess, we 15 had a presentation here by Mr. Gilmore, a fairly 16 lengthy presentation on the archeological aspects 17 of Wuskwatim. Basically, the first part of his 18 presentation dealt with the methods to be applied, 19 and he was talking in many respects as an American 20 citizen, not too knowledgeable perhaps about 21 Canadian archeological methods. And Ms. Matthews 22 Lemieux questioned him extensively afterwards, and 23 it was established that indeed he hadn't read many 24 of the documents. But would you agree -- I don't 25 know who answers these questions -- that the 5413 1 methods that he was referring to, they in itself 2 were not what was deficient in what he was talking 3 about? 4 MR. DAVIES: The Heritage Resource 5 Team, Northern Lights Heritage Services, used the 6 methodologies and followed the requirements 7 outlined in the Manitoba Heritage Resources Act, 8 which is 1986. The study team are also members of 9 the Canadian Archeological Association, which also 10 has some very strict requirements that are in 11 place. In regards to the rules of ethics, they 12 follow the Society of Applied Anthropology rules 13 of ethics in conducting their studies, which is 14 also recognized by UNESCO. The work that, or the 15 report that Mr. Gilmore read and provided 16 information on to a large extent referred to a 17 report that was done in 1999 by Heritage Resources 18 Branch, which is a very small study that looks 19 specifically at the camp site. And I believe a 20 the lot of the information that was in the 21 Heritage Resources section was not perhaps 22 reviewed in detail. And if it had, the 23 information in regards to the methodology and the 24 fact that it did follow the Provincial Heritage 25 Resources Act, and the other main organizations 5414 1 and associations in Canada, would have been clear. 2 THE CHAIRMAN: Well, I think to a 3 large extent that was established in the questions 4 that followed. But from what I see in that 5 section in the document, I suppose when we are 6 talking CRD days, we were not talking sustainable 7 development. Otherwise, the archeological sites 8 that were known or established -- and it is stated 9 in the document that most of these sites that have 10 been identified have been severely impacted by the 11 operation of CRD. And I gather there is not much 12 that can be done to recover on that. But it does 13 state in your document that there are many 14 sites -- it mentions in particular that 17 sites 15 cluster at three major locations, at the outlet of 16 the Burntwood River, and Wuskwatim Lake, southwest 17 quarter of Wuskwatim Lake and between Wuskwatim 18 Falls and Taskinigup Falls. But the thing that 19 concerns me is that when we talk about, the 20 majority of sites it indicates, as they were 21 originally recorded during pre-CRD investigations, 22 and were situated at levels of between 196 and 231 23 metres above sea level. And when we are talking 24 about, and in most cases were between zero and 10 25 metres from the shore lines. And now we are 5415 1 talking about a system which will be at basically 2 234 metres above sea level. Many of these sites, 3 I can imagine, will be impacted. And you do 4 indeed talk about mitigation measures and some 5 ongoing monitoring. 6 I would like to get some feedback in 7 terms of what you plan to do in terms of 8 mitigating, specifically in regards to the 21 9 archeological sites that have been identified on 10 Wuskwatim Lake? 11 MR. DAVIES: This may be going back a 12 bit. There was originally work done in the 13 Wuskwatim Lake area in 1971 and 1975 as part of 14 the Churchill River Diversion archeological 15 project. That was when a lot of the sites were 16 identified. Following that, Manitoba Hydro has 17 funded fairly long-term studies, with Manitoba 18 Heritage Resources Branch who have been conducting 19 salvage work with NCN, basically looking at the 20 areas that are subject to erosion. And where they 21 are subject to erosion, then salvage does take 22 place. If it is in regards to artifacts, the 23 artifacts are taken, recorded, and archived. If 24 it is in regards to burials, there is a process 25 through the Heritage Resources Act that covers 5416 1 that. And there is also another process that has 2 been worked out between NCN and the Heritage 3 Resource Branch for re-internment of people. As 4 part of this project there has also been a 5 commitment for additional funding and study to 6 Heritage Resources Branch, to continue their 7 salvage work along the shore line of Wuskwatim 8 Lake, to again make sure that any areas that could 9 be subject to erosion, particularly with the 10 excellerated erosion that could occur during the 11 first five years would be mitigated. 12 With regards to the sites that were 13 identified as part of the Heritage Resource impact 14 assessment for this EIS, there was work again done 15 in 2000, 2001, 2002, and 2003, and there will be 16 some additional work this year again to make sure 17 that basically everything that can be identified 18 at this point in time has been identified. 19 All of the areas that were looked at 20 where heritage resources were identified, those 21 objects have been recovered. Where there was 22 something that needed to be relocated that would 23 be affected by the project, that has been done, 24 specifically in regards to the wave markers and 25 the cabin site. So at this point in time, all of 5417 1 the work that could be done in regards to heritage 2 resources and mitigation of impacts at those sites 3 has been conducted. Additional work will be 4 undertaken when actual clearing starts to make 5 sure that if something is uncovered when the earth 6 cover is removed, that again it can be salvaged 7 and mitigated immediately. 8 THE CHAIRMAN: During the construction 9 process? 10 MR. DAVIES: During the construction 11 process. 12 THE CHAIRMAN: I think you touched 13 upon that, but to make sure, there will be ongoing 14 investigation to try and establish if there are no 15 further sites, or if there are further sites that 16 have so far, that have not been discovered at this 17 point in time, as part of that ongoing process 18 that you referred to? 19 MR. DAVIES: That's correct. But 20 there has already been a significant amount of 21 work done, and it is really for two reasons. 22 There is a lot of interest, both by NCN because of 23 their cultural heritage, but also under the 24 Heritage Resources Act, if during construction you 25 do find heritage resources, the project stops. So 5418 1 there is quite very detailed studies that are 2 undertaken prior to construction to make sure that 3 that does not occur. 4 THE CHAIRMAN: Yes, I would hope so 5 indeed. Because, as we said before, so much of 6 that has perhaps been lost in the past in regards 7 to CRD, there is so much more reason that we need 8 to protect what we can establish is there in 9 regards to what has not been flooded at this point 10 in time. Because that is indeed part of the 11 sustainable value of the project, that it is part 12 of the tie-ins in with the past and indeed is of 13 great value. 14 So what you are telling me, there will 15 be ongoing mitigation measures in regard to those 16 sites that are already established? 17 MR. DAVIES: That's correct. There 18 has been a commitment made in the environmental 19 impact statement that Manitoba Hydro would 20 continue to fund Manitoba Heritage Resources 21 Branch to continue those investigations, plus 22 Northern Lights Heritage Resource Services are 23 going to conduct additional work this year to make 24 sure, again, that there is absolute certainty, to 25 the point that you can, that there are no 5419 1 additional heritage resources that could be 2 affected by the project. 3 THE CHAIRMAN: Thank you. Mr. 4 Wojczynski. 5 MR. WOJCZYNSKI: Could I add two small 6 comments? One is that I think some of the 7 material that Mr. Davies is referring to actually 8 was discussed briefly by Elder Jimmy Hunter Spence 9 at the, I believe it was The Pas where he spoke 10 quite powerfully, and some of this preservation of 11 heritage resources is what he spoke about. And it 12 is just a reminder that that is the same set of 13 measures that we are talking about. But the 14 other, Mr. Chairman, I may have misheard or 15 misinterpreted what I was hearing, but you were 16 referring to many of these sites being 231 or 17 lower, and we are going to be operating at 234 18 with Wuskwatim. And I don't know the exact 19 number, but I believe the majority of the sites 20 are actually around Wuskwatim Lake, not in the 21 flooded area, and they already were -- Wuskwatim 22 Lake already was operating just below 234, or 23 essentially at 234, going up to 234. So those 24 sites, the difficulties with those heritage 25 resources is really ones that were there even 5420 1 prior to Wuskwatim, so we are not significantly 2 exacerbating that. 3 THE CHAIRMAN: No, I was really 4 referring to prior to CRD. 5 MR. WOJCZYNSKI: Okay. Thank you. 6 THE CHAIRMAN: Ms. Avery Kinew. 7 MS. AVERY KINEW: I was just 8 wondering, Mr. Thomas, maybe I missed it, but I 9 didn't find a place where there was names of 10 people that were involved in the traditional 11 knowledge component? I found, like you said it 12 was filtered all of the way through the 13 environmental impact statement, but not in any one 14 place. And it didn't really refer to particular 15 people, and it might go back to Mr. Abra's 16 question about how widespread the consultation 17 was. I wondered, maybe if it is not in the EIS, 18 do you keep it in the community? Do you have an 19 archive? Are their tapes or video tapes that 20 people can look at in the future? Is there a 21 digital collection? There is so much, but it is 22 sprinkled all through. 23 MR. THOMAS: We have engaged in the 24 process to get information from people as needed. 25 And we've also provided assurances to the 5421 1 participants that we would keep things 2 confidential, and we were guided by that 3 commitment when we produced the reports. 4 Certainly, with NCN, it is important 5 for us to maintain the knowledge that was shared, 6 and we are attempting to set up situations to make 7 sure that that knowledge is maintained and can be 8 passed down to future generations. 9 MS. AVERY KINEW: Thank you. I notice 10 that you kept a lot of information confidential. 11 That is your way of protecting sacred sites and 12 the people's knowledge, I appreciate that. 13 MR. THOMAS: We certainly don't want 14 to put on any map or document that readily 15 identifies areas that we consider to be sacred. 16 We need to protect them, and we've done so by not 17 providing that kind of a specific information. 18 MS. AVERY KINEW: I was wondering, 19 though, there was mention, I think more in the 20 testimony than in the EIS, about protocols, 21 particularly, maybe with reburials and that you 22 had ways of doing that. Around I wondered if -- 23 maybe I missed it if it is written -- are you 24 sharing this with our First Nations? Other people 25 will have to go through what you have gone through 5422 1 in doing the EIS? 2 MR. THOMAS: If the request comes 3 forward from other First Nation people that they 4 request our assistance in providing them with 5 certain knowledge, we would be more than happy to 6 consider that. But the people that are charged 7 with the responsibility of keeping that kind 8 knowledge would have to be consulted with as to 9 whether they are willing to participate in that 10 sort of thing. But at one point in time, we did 11 identify, based on a question, I think it was from 12 the CNF people, about some of the things that we 13 do to re-inter the remains of our ancestors. 14 MS. AVERY KINEW: One of the 15 recommendations the CEC made for the original 16 guidelines is that the guidelines should recognize 17 the Cree world view, and that wasn't particularly 18 reflected in the guidelines. Do you feel that the 19 Cree world view is reflected in your statement or 20 EIS? 21 MR. THOMAS: Because we have been 22 involved in this process in a way that the First 23 Nations people have never been involved, we have 24 brought with us a very comprehensive world view 25 that is very wholistic. It incorporates the past, 5423 1 present, and the future on a continuum, where it 2 is hard to identify where the beginning is and 3 where the end is, it just continues to go. And it 4 is something that gradually evolves as well, so 5 the change comes about. So we've taken all of 6 that into consideration. Because this process has 7 been one that we call a community driven process, 8 where it is not just us as leaders that are 9 involved in developing the Wuskwatim proposal or 10 the project itself, it is our community, their 11 knowledge, which includes the traditional 12 knowledge that is being talked about. As 13 mentioned previously, it is not something that is 14 seen as static, it evolves on a continuum. And 15 our involvement as a community in this whole 16 process has ensured that our views, our knowledge 17 has been incorporated, to the best possible way 18 that we can. And we feel -- there may be some 19 limitations at times that prevent us from being 20 able to incorporate everything that we would like, 21 but certainly, as a community, we've made 22 significant contributions into how things unfolded 23 in terms of what is to be looked at in the 24 environmental assessment. So we have tried to 25 stretch the so-called limitations that are put in 5424 1 place by existing legislation, that is sometimes 2 referred to, and we assert ourselves so that much 3 more than what is required by law is looked at. 4 So in that sense, yes, we feel that we 5 have made a very significant contribution to this 6 and our views have been taken into account. 7 MS. AVERY KINEW: Thank you. I did 8 appreciate that the oral testimony of Jimmy D. 9 Spence, and Darcy Linklater and people like that, 10 added a whole other dimension than what is just in 11 the written word. And I wondered I'm sure there 12 is Cree concepts that go beyond sustainable 13 development, or reflect your world view in a way 14 that isn't maybe portrayed yet? 15 MR. THOMAS: Yes, I can give you an 16 example. My colleague shares his knowledge with 17 me at times to make sure that I at least have a 18 sense of what I'm talking about sometimes, kind of 19 thing. But in 1987, a Commission contained a 20 definition that included our peoples' way of 21 thinking, the seventh generation philosophy, where 22 the actions of today will meet the needs of the 23 present generation without compromising the needs 24 of the future generations. I have heard my 25 colleague mention this fundamental principle quite 5425 1 often, where he states that we have an unwritten 2 law which states that if you take care of the 3 land, the land will take care of you. And if you 4 take what you need from the land, the land will 5 give you what you need. And it is a concept that 6 is included or imbued into us, kind of thing, and 7 we carry that with us in terms of our way of 8 thinking and doing things in this life. 9 MS. AVERY KINEW: Thank you. I have 10 just one more question. It was brought up again 11 this afternoon about the elders having one 12 consideration, perhaps about the debris, western 13 science having another. Do you really think that 14 enough respect was given to traditional knowledge, 15 some people called it indigenous science, and why 16 is science always used when it is referring to 17 engineering technology? That is a rhetorical 18 question maybe, but you might have an opinion on 19 that? 20 MR. THOMAS: Yes, we do have some 21 differences of opinion, where so-called western 22 science states that there will be no impacts, our 23 elders will take a different viewpoint. I think 24 it has been included in our presentations, that if 25 Hydro says there will be no shoreline debris 5426 1 floating around, kind of thing, our elders who 2 have been around for a long time know otherwise, 3 and they state their viewpoint to us. And we make 4 sure that everybody that is involved is aware of 5 that, and that they take that into consideration 6 in terms of figuring out what needs to be done 7 about the particular problem or situation at hand. 8 MS. AVERY KINEW: Just one more 9 supplementary, that would mean that the elders' 10 version of the English concept monitoring would 11 include follow-up action, implementation? 12 MR. THOMAS: As I indicated 13 previously, we do take a very broad wholistic 14 perspective on things. And our elders generally, 15 when they provide us with advice, do take into 16 account the past, present, and the future. So 17 when monitoring is discussed, you have to 18 incorporate the totality of all of that. 19 MS. AVERY KINEW: Thank you. 20 THE CHAIRMAN: Thank you. 21 Mr. Wojcznski. 22 MR. WOJCZYNSKI: Two small comments. 23 In Manitoba Hydro's English, we also are committed 24 to following up on the monitoring. And the other 25 point on the sustainable development principles, 5427 1 what I realize that I didn't reference is that in 2 both the need for and alternatives and in the EIS 3 we have a Manitoba Hydro sustainable development 4 report, appendix 1 in the NFAAT, without going 5 through it, but just saying that that is available 6 as well in the material already submitted. 7 THE CHAIRMAN: Thank you. Maybe we 8 can recommend, as the Commission, that if you take 9 from the land what you need, the land will supply 10 you what you need, be incorporated in the 11 Sustainable Development Act. It certainly is a 12 very interesting and very potent statement. 13 Mr. Osler. 14 MR. OSLER: Just two things. The 15 point has been made by Ms. Avery Kinew that there 16 is not a lot of information spelled out in the 17 document on traditional knowledge, and it is sort 18 of imbued throughout it, and a lot of it is kept 19 confidential. So from the point of view from 20 somebody who worked on this, let me assure you 21 that at times where we were dealing with certain 22 issues, we would get access, our team would get 23 access to maps and things, records and information 24 that NCN would have, that was only being allowed 25 to be used by us for the purposes of discussion in 5428 1 trying to resolve certain issues. Certainly, they 2 had no desire to have it published. Even 3 reference to the dancing circle, we were asked not 4 to refer to in some of our sections, although it 5 has come out a lot in the hearing because people 6 wanted to talk about it. 7 There was a pilot -- I have referenced 8 it before -- workshops and involvement of elders 9 in some in-depth ways that NCN did independently 10 of reporting on it here, but they did it as a 11 pilot project on traditional knowledge. And they 12 have all of that information internally, and they 13 keep it. 14 So, maybe from the point of view of 15 environmental practice, if you had someone, if you 16 have situations where the person is not a 17 proponent or co-proponent, this may cause some 18 very interesting issues as to how you document 19 this. At least in this case we did not have that 20 issue with respect to the generation project and 21 the in-depth issues, but you see it in a little 22 different way with transmission. That is a 23 comment on the practitioner's point of view of the 24 issues of, A, getting the information, paying 25 attention to it, and then reporting on it. So 5429 1 anybody else -- the last step seems to be very 2 difficult, given the confidentiality and people's 3 desire to protect what is very important to them, 4 and could be dangerous in some cases to report to 5 the world at large -- I am thinking of caribou 6 issues. 7 MS. AVERY KINEW: Or the issue of 8 bio-piracy and traditional medicines. 9 MR. OSLER: Yes, as you know, some of 10 the ethics rules with respect to access to and use 11 of knowledge. And that is commented on in an 12 answer to CNF, that I referred to before in terms 13 of the rules that were used internally. 14 The elders were quite generous in 15 terms of some confidentiality issues here, because 16 of the nature of who we were and who we were 17 working with. They might not be as generous if we 18 weren't dealing with a co-proponent. 19 The Cree world view, from a 20 practitioner's point of view, it depends very much 21 on which Cree you are dealing with -- as I got 22 cross-examined in quite depth, as you heard. And 23 it is reflected by involvement in the way in which 24 we have done it, and not so much in written 25 material. And you have heard it when people have 5430 1 stood up and spoken in the hearing. We heard that 2 at lot through the whole process. 3 And the word science, I have objected 4 to several times to the western science versus the 5 other one. My view of science is something that 6 is refutable, as distinct from known for sure, and 7 I think that would apply to both sets. 8 THE CHAIRMAN: Mr. Sargeant. 9 MR. SARGEANT: I have a question, it 10 is not an EIS question, let me go off on a little 11 bit of a tangent. It arises out of this morning's 12 discussion, and I thought since Mr. Wojcznski is 13 in the chair, he might be able to answer it. I 14 was really curious this morning, why after 31 15 years Hydro is still operating with interim 16 licences? 17 MR. WOJCZYNSKI: Well, as you said, it 18 is a bit tangential and probably -- I know I felt 19 some discomfort earlier today because I think we 20 are probably getting to a depth in this topic that 21 is probably outside of the scope of the Wuskwatim 22 review. But I realize there is a general interest 23 and some need for some general understanding. So 24 maybe just at the high level I could answer that. 25 There is a couple of points. One is 5431 1 that, as I believe Mr. Topping and Hannon had 2 indicated, that an interim license is a valid 3 license, it is not -- the terminology, the word 4 "interim" is suggestive of something, but it is 5 our understanding of the Act, how it is written 6 and how it is being applied, and legitimately 7 being applied, an interim license for us to 8 operate under is entirely valid. And there is 9 not -- and that is why we asked in 10 cross-examination -- you say, well, because we are 11 operating under an interim license and not a final 12 license, does that mean we are somehow deficient? 13 And that is why we got the cross-examination 14 response that, no, it is valid, there isn't a 15 deficiency. 16 So that is dealing with one aspect of 17 it. And there is no deadline for going to final. 18 But it does come to mind, why is it taking 31 19 years? That is an obvious question and I see some 20 nodding. And it is understandable that that would 21 come to mind as a question. 22 Maybe it would be useful to run 23 quickly through, if you think back to the CRD, we 24 received an interim license in 1973, that is where 25 the 31 years comes from today. But the CRD 5432 1 itself, we didn't go into full diversion flows 2 until 1977. Then we operated for a number of 3 years to monitor the data, to confirm all of the 4 studies, to confirm the projections, and I'm 5 talking about flows and elevations, and we were 6 doing monitoring. And then -- and this is part 7 and parcel of the idea of having an interim 8 license is you get better information and confirm 9 the information that you had. 10 One of the aspects was then, well, 11 once the facilities are in place, do we have an 12 optimal operation? And moving to the Augmented 13 Flow program was part and parcel of seeing what 14 the flows were, and they have a better idea of the 15 hydraulics, and it was concluded that we would go 16 to what has become known as the Augmented Flow 17 Program. So various versions of that were tested. 18 I'm going through all of this because you couldn't 19 go to a final license until you get a number of 20 conditions met. And one of them is that you 21 finalize how you are going to operate the thing. 22 So the Augmented Flow Program then was 23 developed, and there were various versions of it, 24 and the final version of the Augmented Flow 25 Program was 1986. Then we operated at that for a 5433 1 few years, and it sort of became confirmed, okay, 2 that works, that seems to be good, and there was a 3 bunch of other factors, so it has remained 4 unchanged since then. Remembering that we had a 5 valid license for operation, and it didn't require 6 a particular finalization date, Manitoba Hydro 7 used its judgment to say, when should we go in and 8 apply for a final license? And there are a number 9 of different considerations, but one of them is, 10 what is the most important thing for us to be 11 doing at this time with limited resources, and 12 that was a consideration, limited internal 13 resources. But another consideration was that we 14 were in the process, had been for many years, 15 trying to finalize agreements with as many of the 16 affected parties -- well, with all of the affected 17 parties -- but there was a preference to have 18 certainly the majority of the agreements with the 19 affected parties in place before we finalized the 20 license. 21 So we are in process, we had been in 22 the process and are still in the process on the 23 CRD particularly, there was the Manasan bypass, 24 that was in the -- I can't quite remember but it 25 was in the mid to late 1980's. We had the 5434 1 Churchill Weir that was in place in 1998, '99, in 2 that era. And we had the following year an 3 agreement with the Town of Churchill and a local 4 community whose name escapes me at the moment. We 5 reached agreements with SIL on the CRD and the AFP 6 over 1984 to 1999; with NCN, an implemenation 7 agreement, 1996; with Tataskweyak, 1992, and then 8 a further one in '96; York in 1995. As a matter 9 of fact, we haven't quite finished all of those 10 agreements, as was earlier evidence, we are just 11 finalizing with War Lake and the Fox Lake 12 agreements, which are -- and those communities 13 were affected by CRD. And so we put in place an 14 expanded debris management program over the years. 15 Now we are spending over two million dollars a 16 year. 17 So part of our judgment was that it 18 was best to have all of these things in place 19 before we finalized our agreement. So there is a 20 variety of issues, but that is why we haven't done 21 it earlier. 22 MR. SARGEANT: Thank you. 23 THE CHAIRMAN: Any further questions? 24 MR. MAYER: Arising out of that, so 25 the justification that we heard this morning, that 5435 1 you haven't complied with all of the commitments 2 respecting severance line, and there was a 3 suggestion by me of clearing the bush out of 4 Mystery Lake, that has no bearing on the decision 5 not to apply for an interim license? 6 MR. WOJCZYNSKI: Believe it or not, I 7 was trying to give a short answer, and by 8 giving -- sometimes I have trouble giving a short 9 answer because I cut something out. 10 MR. MAYER: Okay. 11 MR. WOJCZYNSKI: To apply for a final 12 license, we have to have met all of the 13 requirements, and there are a number of them. So 14 to fully mitigate the impacts, an important 15 portion of that is reaching agreement. So I 16 certainly talked about that. 17 In the final stages, when preparing an 18 application for a final license, you have to have 19 detailed mapping with all of the severance lines, 20 for example. You mentioned, Mr. Mayer, this 21 morning -- well, you have seen maps of severance 22 lines, they are all there, what is the problem -- 23 that is not quite what you said but -- 24 MR. MAYER: That is what I meant. 25 MR. WOJCZYNSKI: Back in 1973, there 5436 1 were severance lines, or approximate severance 2 lines done very coarsely, and you can put those on 3 maps. But, again, part of the natural process of 4 going for final license, as opposed to an interim, 5 as you have better information -- you don't want 6 to have a severance line which is way far off the 7 sides of the river or the water body, you want to 8 bring them in as close as you can to minimize the 9 amount of area that is under severance. So as you 10 get better hydrology, better -- you may get better 11 mapping, you certainly get better studies as to 12 what is happening to the hydraulics -- then you 13 can then go back to your detailed maps and 14 determine exactly where the severance line is. 15 And that is one of the things that has been 16 happening, and we have pretty well finished all of 17 that detailed mapping and detailed severance, 18 which is much more refined and somewhat narrower 19 than the stuff you would have seen on the maps in 20 earlier years. 21 There is other things that have to be 22 done, and you can't really do those -- we 23 virtually got all of those ready, I understand 24 there is just a few left. But you would file them 25 all at once, you don't file them piecemeal. 5437 1 There is other things that we have to 2 do, Manitoba Hydro. For example, on the property, 3 when you go and get the final license, one of the 4 requirements for us is that we have to make sure 5 there are no liens, no mining claims. And you 6 can't do that several years ahead of time because 7 new liens and claims come up. So those are some 8 things that we still have to do before we can 9 actually apply for the final license. And so as 10 far as Water Resources Branch or Mr. Topping is 11 concerned, he hasn't seen the stuff because we 12 haven't filed it. It is not that we haven't been 13 doing work. Essentially they get a package one 14 day in a truck that says, here it all is. 15 MR. MAYER: I won't bother why anybody 16 would permit a mining claim to be filed within a 17 proposed severance line. 18 MR. WOJCZYNSKI: That may not have 19 been the best example. 20 THE CHAIRMAN: Mr. Nepinak. 21 MR. NEPINAK: Mr. Wojcznski, you 22 didn't include Pimicikamak in your incomplete 23 agreements I guess. Is there a reason for that? 24 MR. WOJCZYNSKI: I was referring to 25 the Churchill River Diversion, and Pimicikamak is 5438 1 on the Upper Nelson, so I wasn't referring to 2 anything on the Upper Nelson because they are not 3 affected by CRD. LWR, Lake Winnipeg Regulation 4 also is on an interim license right now. And the 5 fact that Pimicikamak -- we have the NFA, but we 6 don't have an implementation agreement with them, 7 although we are implementing the NFA, that would 8 be a fact that would pertain to LWR and not CRD. 9 THE CHAIRMAN: Seeing no further 10 questions, even though it is still snowing, we 11 will adjourn. 12 13 (ADJOURNED AT 4:45 P.M.) 14 15 16 17 18 19 20 21 22