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 M