5838 1 MANITOBA CLEAN ENVIRONMENT COMMISSION 2 3 VERBATIM TRANSCRIPT 4 Volume 25 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 Friday, May 14, 2004 22 Radisson Hotel 23 288 Portage Avenue 24 Winnipeg, Manitoba 25 5839 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 5840 1 2 LIST OF PARTICIPANTS 3 4 Manitoba Conservation: 5 Larry Strachan 6 Trent Hreno 7 8 Manitoba Hydro/NCN: 9 Doug Bedford, Counsel 10 Bob Adkins, Counsel 11 Marvin Shaffer 12 Ed Wojczynski 13 Ken Adams 14 Carolyn Wray 15 Ron Mazur 16 Lloyd Kuczek 17 Cam Osler 18 Stuart Davies 19 David Hicks 20 George Rempel 21 David Cormie 22 Alex Fleming 23 Marvin Shaffer 24 Blair McMahon 25 5841 1 2 LIST OF PARTICIPANTS 3 4 Manitoba Metis Federation 5 Jean Teillet 6 David Chartrand 7 Dan Benoit 8 Darryl Montgomery 9 Al Benoit 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 5842 1 2 INDEX OF EXHIBITS 3 4 Number Page 5 6 7 MMF 1002: Presentation documents, 8 various from Manitoba 9 Metis Federation 5997 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 5843 1 2 INDEX OF UNDERTAKINGS 3 4 UNDERTAKING NO. PAGE 5 6 7 8 NO UNDERTAKINGS GIVEN 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 5844 1 FRIDAY, MAY 14, 2004 2 Upon commencing at 9:05 a.m. 3 4 THE CHAIRMAN: Ladies and gentlemen, it's 5 nine o'clock. Time to get to work. I call upon the 6 representatives of Manitoba Metis Federation for the 7 EIS questioning of the proponents. 8 Yes, Ms. Teillet, introduce yourself and 9 your colleague and you may proceed. 10 MS. TEILLET: My name is Jean Teillet. I 11 am legal counsel for the Manitoba Metis Federation 12 with respect to this hearing. And with me, I have 13 Mr. Al Benoit who is a senior staff with the Manitoba 14 Metis Federation. Good morning, everyone. 15 I have no idea who to address the 16 questions to so I'm just going to ask them and I'm 17 sure you'll figure out who needs to answer them. 18 I wanted to ask first in reading the EIS, 19 there is a discussion of the public and your 20 discussion early on in 3.3.1 of I believe it's Volume 21 1 of the generation project which is your sort of 22 consultation chapter. And in that, you discuss that 23 you arrived at the conclusion that there are several 24 publics. That there's a general public and an 25 Aboriginal public and then the First Nations. And I 5845 1 wanted to know how you arrived at that conclusion 2 because I don't understand how you got there. So if 3 you could explain that to us, please? 4 MR. REMPEL: Could you repeat the 5 reference in Section 3? 6 MS. TEILLET: I have it in 3.3.1. 7 MR. REMPEL: All right. We'll look at 8 the reference and Mr. Osler will answer the question 9 on the public involvement program. 10 MS. TEILLET: Just to be clear, I'm not 11 asking about the public involvement, I'm asking how 12 you arrived at your understanding of how to divvy 13 these up or define them. 14 MR. OSLER: Okay, page 3-11 I think of 15 Volume 1 of Generation is what we're looking at. The 16 discussion has already stated that the people we're 17 dealing with include NCN. And what we're talking 18 about here is moving beyond NCN to other groups 19 beyond those members of NCN and those otherwise in 20 the local region. 21 The program that we laid out discussed 22 two broad groups for that purpose, potentially 23 affected communities and segments of the public in 24 what we call the project region and other interested 25 groups and individuals. So I presume that the 5846 1 discussion you're asking me to get into deals with 2 the first of those two and the groupings within it, 3 right? 4 MS. TEILLET: That's correct, thank you. 5 MR. OSLER: So the focus here is beyond 6 NCN and the local area in talking about communities 7 that could be potentially affected and segments of 8 the public who could be potentially affected by these 9 projects. And our approach, we had to look at this 10 before we had done the analysis of effects. So we 11 were taking an approach that said who could 12 potentially be affected without yet judging whether 13 they would in fact be affected. And we looked at 14 that from the point of view of pathways of effects 15 from the generation project in the sense of waterways 16 and the areas to be affected by the construction of 17 the access road. And in the case of the transmission 18 route, it will be the land areas that could be 19 affected by the construction of a route which means 20 we had to take into account all the alternative areas 21 to where the route might go, not just the area that 22 we now know it's being recommended it should go. 23 On the basis of that, we defined a range, 24 an area, geography, of potentially affected 25 communities which meant, in the layman's sense of the 5847 1 word, communities, places with names on a map and 2 organized structures, be the municipalities, Northern 3 Affairs communities or First Nation communities. And 4 in that context, it was apparent that there were a 5 number of Aboriginal communities in the sense that in 6 page 3-12, we were aware, or are aware, that the 7 context for talking about Aboriginal communities 8 would be eventually a constitutional one. And that 9 point is made on page 3-12. And focusing on the 10 Aboriginal communities, we simply said these include 11 any First Nation or other Aboriginal communities. 12 Northern Affairs communities, for example, with 13 predominantly Aboriginal population in the project 14 region. 15 In the sense that we were developing this 16 approach, we were, as I said, looking at communities 17 in the sense of place with structures of governance 18 and names on a map or groups of people. But in this 19 case, we're talking about communities of that type. 20 And so the language that's reflected here is nothing 21 more than what you'd expect from that approach. 22 And we were looking at the pathways for 23 these communities to be affected by the project. And 24 we note, one of them being in their traditional 25 resource area as evidenced, for example, by 5848 1 registered trapline areas assigned to communities or 2 other information derived from consultation with 3 communities. So we were certainly looking at 4 traditional resource use areas in that sense. And we 5 were interested in their legitimate rights and 6 interests. And we said here as evidenced, for 7 example, by hunting, fishing or other such activities 8 or by any existing agreements with Manitoba Hydro. 9 And we used that as evidence. 10 In this case, it's not as though nobody 11 has been doing development before in this area. 12 Manitoba Hydro, in particular, has had prior 13 activities of one type or another throughout a large 14 part of the area we're talking about. And it 15 therefore has agreements with the communities in the 16 sense of the word I'm using it, with many of the 17 Aboriginal communities both along the transmission 18 route area, Cormorant and OCN being two by way of 19 example to do with the past developments relating to 20 the Grand Rapids project. And of course with other 21 communities, Aboriginal First Nation people in the 22 area. 23 So that's a long way of saying the 24 approach that has been taken by contact ultimately in 25 the communications public involvement sense of 5849 1 certain people. But that's how they were selected. 2 That was the approach taken and the rationale. 3 MS. TEILLET: It's very consistent with 4 the approach taken that was described to us by 5 Manitoba Conservation and by Mr. Topping who was here 6 the other day. Is that coincidence or was there 7 discussion with them while you were preparing to 8 decide how you were going to go about doing that? 9 Was there discussions with them to arrive at such a 10 similar idea? 11 MR. OSLER: We generally predated the 12 Section 35 by a considerable time period. The 13 document that's being summarized on these pages was 14 put on the public registry and public websites I 15 think in August of 2002. 16 MS. TEILLET: I'm sorry, when you say you 17 predated Section 35, you mean you predated their idea 18 of their Section 35 consultation mechanism? 19 MR. OSLER: Their consultation process. 20 MS. TEILLET: You don't mean Section 35 21 itself? 22 MR. OSLER: No, not at all. 23 MS. TEILLET: Thank you. 24 MR. OSLER: And the thought processes 25 that we took in developing this language that was put 5850 1 out as a public involvement plan pursuant to the EIS 2 guidelines, it was published in August of 2002, was 3 itself a product of consultation with these varied 4 people to the extent that we could in what we call 5 round 1 and round 2 of the PIP process which took 6 place in the August/September period, October period 7 of 2001 and the period of 2002 going up through about 8 May, through May. 9 So the language you see here reflected 10 some initial thinking and the fruits of the 11 consultations that we had in the first two rounds of 12 consultation. I can't say that there were no 13 conversations between our clients or some of us with 14 some of the people you've seen from the governments 15 here because there's so many activities going back 16 and forth all the time in consultation issues and 17 discussions. It's quite possible that we -- I never 18 talked to Heather Leonoff until fairly recently for 19 example. I don't think I had even met her until 20 fairly recently. But Mr. Hannon I've certainly had 21 many discussions with on other matters. And it's an 22 ongoing consultation that's involved the province 23 with Pimicikamak. And these matters certainly were 24 discussed in that process, called the Article 9 25 process as documented here. So there may be overlap 5851 1 because of that. But we had a job to do and we were 2 doing it starting in 2001. 3 MS. TEILLET: Thank you. Can you tell 4 me, did you attempt to come to any definition of the 5 Aboriginal peoples that you were talking to? Did you 6 try, in your own mind, to define what is a First 7 Nation or what is a Metis? I mean you collectively, 8 I don't mean you personally. 9 MR. OSLER: Well, that's not even any 10 easier if you're going to make me collectively. 11 MS. TEILLET: The royal you. 12 MR. OSLER: I don't have a royal me. I'm 13 a lowly consultant. The team and the clients were 14 certainly aware, and I think it's laid out in various 15 places, that the constitutional rights foundation for 16 discussing and separating out Aboriginal communities 17 related to Section 35 and dealt with the groups that 18 had been discussed here, Indian, and all of its 19 classifications not only just status but non-status 20 and other technical elements, Metis and Innu. 21 It is easy to know these days when you're 22 dealing with a status First Nation. And in this 23 case, in this region, the ones we're talking about 24 have agreements with Manitoba Hydro and the Crown 25 anyway relating to prior developments, so either the 5852 1 northern flood agreements or the Grand Rapids 2 agreements. So that wasn't any great mystery. 3 There are also agreements with some of 4 these communities, Cormorant for one, involving these 5 same players. And they also have a resource 6 management area. So in many people's mind, that 7 community is often referred to, without getting into 8 the basis for it, as a Metis community. 9 Frankly, beyond the fact that it would 10 appear there are Metis as well as non-status people 11 in addition to the status First Nation people in the 12 area, we did not direct our attention to trying to, 13 in advance, explore how you would define or break out 14 that information. We sought information on it. We 15 asked people about it. We tried to get information 16 about how many people in this community are from this 17 First Nation, Wabowden, Pikwitonei and Thicket 18 Portage communities which don't have agreements with 19 Manitoba Hydro who -- sorry? 20 MR. MAYER: Wabowden does have an 21 agreement. 22 MR. OSLER: With Manitoba Hydro? Sorry. 23 In the context of their breakdowns of their 24 groupings, they are a mixture of many different 25 elements as has been discussed briefly a few times on 5853 1 this transcript. But we didn't go into any 2 preconceived notions or attempts to impose any 3 earlier definitions on it. We were interested in 4 what people wanted to tell us. But we were 5 predominantly interested in making sure that we had 6 identified the range of people, Aboriginal or 7 otherwise, who could potentially be affected by these 8 projects and ensure that they were aware of these 9 projects, of the descriptions of these projects and 10 of what we thought would be the range of physical 11 effects and other effects of these projects and that 12 we would avail ourselves of any concerns, interests, 13 views, questions that they had of us so that we could 14 exchange information and leave ultimately to the 15 Crown the issue of who had rights under what 16 headings. 17 MS. TEILLET: You are aware of the recent 18 Supreme Court of Canada decision in Powley that came 19 out last September? Did you take another look at 20 your consultation policy or how you were carrying out 21 your consultation after that decision came down? 22 MR. OSLER: You're talking about the 23 Powley decision? 24 MS. TEILLET: Yes. 25 MR. OSLER: You said September or was 5854 1 that March? 2 MS. TEILLET: No, it was in September of 3 2003, September 19th. 4 MR. OSLER: Okay. In any event, it was 5 certainly after we had filed and written the EIS. 6 MS. TEILLET: I agree with you that it 7 postdates that but you are still -- I don't want to 8 put words in your mouth. Maybe you can just answer 9 the question. 10 MR. OSLER: I have recently read the 11 decision but I am not a lawyer so I don't make my job 12 to be reading decisions. We have lots of lawyers I 13 find who can advise me what the law is. And I 14 haven't really been focused in the period of time 15 we've been dealing with since the CEC process began 16 with redesigning any consultation process. But in 17 general, if I had read that beforehand, I don't think 18 I would have changed the approach we had taken, 19 particularly for the EIS consultations. 20 And in the case of the CEC process, we 21 knew in any event that the MMF was a registered 22 participant. So that no matter which views people 23 had, we were going to get the MMF perspective. And 24 we had arranged for workshops and other things as 25 part of the CEC process and we were quite confident 5855 1 there would probably be a question and answer process 2 and dialogue process as part of the CEC process. 3 So we had frankly had our heads down 4 dealing with the CEC process since about July or so 5 of last year, of 2003. 6 MS. TEILLET: So just to be clear, you 7 engaged in a consultation process with your -- you 8 made a decision about who to consult with in order to 9 fulfil the requirement, the information you thought 10 you needed to get in order to do the EIS. And once 11 the EIS was finished, is it that your process is at 12 an end? Is that the way you're looking at it, that 13 that was sufficient for that period and then this 14 process is a different process? I'm trying to 15 understand how we connect the dots between these 16 different things. 17 MR. OSLER: The EIS consultation process 18 started in 2001 with people beyond NCN. It had a 19 structure to it. It carried its way along. It 20 didn't stop with the filing of the EIS but it had a 21 dialogue going with communities based on the 22 structure that you and I have just been discussing. 23 And in some cases, in general, we've continued to 24 send information out to the people we've been 25 dialoguing with. And that included, in the sense of 5856 1 sending information out, MMF, locals and central 2 organization. 3 In the case of some communities who had 4 specifically engaged in discussion with us, there was 5 an expressed desire to go to another level of 6 discussion. And the consultation plans were 7 developed with those communities to allow for them to 8 retain some expertise to review the EIS and to carry 9 on a more detailed discussion with us. That's been 10 described in supplementary filings as Round 4 11 Consultation Process. 12 So we didn't stop. We hadn't planned to 13 stop. We carried on with those who wanted to carry 14 on at a level of detail that was suitable for them. 15 But we didn't, in the sense that you posed the 16 question to me a few minutes ago, go and review the 17 latest emerging law cases and other issues in order 18 to rethink the structure that we were following 19 through. 20 We were quite confident that all of the 21 key players were involved in the CEC process and 22 there would be adequate room for dialogue for those 23 who are interested in dialogue here through the 24 process of this exercise. 25 MS. TEILLET: So you said that people who 5857 1 had come to you and requested further information or 2 a more deeper engagement, that you did that with 3 them. Were you not in receipt of letters and 4 requests from the Manitoba Metis Federation saying 5 that it wanted exactly that process? 6 MR. OSLER: Certainly I wasn't. I think 7 there's some issue in the transcript as to when the 8 clients that we worked for were in receipt of 9 letters. And I'll let Manitoba Hydro and NCN discuss 10 that. But there wasn't a dialogue with those of us 11 dealing with the PIP process until we started to get 12 into meetings such as -- or we started to see 13 filings. 14 I think the most detailed filings I saw 15 from MMF were the ones in some of the hearing's 16 motions process that we saw here. MMF didn't come to 17 the workshop in July for example. We thought they 18 were going to but they didn't. So I didn't get a 19 dialogue myself on those issues there. 20 I've become aware that you've had some 21 correspondence with NCN and Manitoba Hydro at various 22 times initially on the employment process, employment 23 training if I'm not mistaken, but not directly with 24 the PIP process. 25 MR. WOJCZYNSKI: Pardon me. 5858 1 THE CHAIRMAN: Mr. Wojczynski. 2 MR. WOJCZYNSKI: I'd just like to confirm 3 something that Mr. Osler had indicated earlier for 4 the record and that was when he was saying in this 5 line of questioning that Manitoba Hydro, in the 6 course of its ongoing work, has various discussions 7 with the provincial government and he, of course, 8 wasn't involved in those. And he was referring to 9 the specific activities for the Wuskwatim project and 10 the public involvement in consultation program. 11 So I just want to confirm as he said that 12 Manitoba staff and Manitoba Hydro staff do have 13 discussions on various issues on as-required bases 14 and that would include discussions between the 15 government and Manitoba Hydro on Aboriginal relations 16 and initiatives and initiatives partly to make sure 17 that we are aware of which each other are doing in. 18 And in the course of those clearly definitions of 19 Aboriginal communities in the broader sense would be 20 naturally part and parcel that. 21 And you mentioned the Powley decision 22 before or after that but it wasn't specific to the 23 Wuskwatim project, it's just part of the generic 24 overall discussions that are there on an ongoing 25 basis. 5859 1 MS. TEILLET: Okay. Just following up on 2 that. What is your definition of "Metis" since 3 you're saying you've had these ongoing discussions 4 and debates about it and dialogue. Can I ask what 5 your definition of "Metis" is? 6 MR. WOJCZYNSKI: We don't have a 7 particular corporate definition of Metis. It's 8 something that we as long as others are working to 9 clarify including in the discussions with government. 10 And recognize that this is an area that, in society 11 and in a legal sense, is being clarified. And so we 12 don't have a particular definition of Metis at this 13 time. 14 MS. TEILLET: And so do I take it from 15 that that you've never asked, say, the Manitoba Metis 16 Federation who they think the Metis are? 17 MR. WOJCZYNSKI: My understanding is that 18 part and parcel of our process to get that definition 19 is discussion with the MMF and Metis people. 20 MS. TEILLET: So what you're saying is 21 that you're having ongoing discussions? I'm just 22 trying to understand. Are you saying you're having 23 ongoing discussions with the Manitoba Metis 24 Federation? And among the discussions you're having 25 would be the inclusion of discussion as to who the 5860 1 Metis are? 2 MR. WOJCZYNSKI: We have had as a 3 corporation -- I personally haven't been involved, 4 others have, but we have had discussions with the 5 Manitoba Metis Federation on this topic in the past. 6 It's not that there's an established ongoing process 7 at this time. We have had discussions in the past 8 and we are in the process of setting up a task force 9 or a process with the MMF to have those discussions 10 in the future. 11 MS. TEILLET: I want to get back to the 12 previous discussion about the Manitoba Metis 13 Federation giving notice of its concerns. I have a 14 letter here. And, Mr. Chair, we have a pile of 15 documents that we will put into the record this 16 morning. So this letter will be before. It's a 17 letter from November 5, 1999 to, at that time, the 18 Honourable Gregory Selinger who was the Minister 19 charged with the administration of the Manitoba Hydro 20 Act. And it's from President David Chartrand. It's 21 not a very long letter but I'm not going to read all 22 of it, only to say that it says, 23 "Re the effects of Hydro development 24 on the Metis. During the past year, 25 the Manitoba Metis Federation has 5861 1 received requests for assistance from 2 the many Metis adversely affected by 3 northern Hydro development. Both 4 individual Metis and their 5 representatives have clearly 6 articulated the injustices they have 7 been and continue to be subjected to 8 by Manitoba Hydro and all levels of 9 government. Of particular concern to 10 the Metis is the lack of consultation 11 and fair compensation." 12 Now, they go on to say that they 13 represent the Manitoba Metis and have a mandate to 14 pursue the best interest of the Metis. So I think 15 that, and there are other documents in here. I'm 16 only picking one out here. The point being that as 17 of November 5, 1999, if Hydro or the Manitoba 18 Government was in doubt as to the fact that the 19 Manitoba Metis Federation had concerns about 20 consultation, would you not consider that to be 21 notice that they have concerns and want to be 22 consulted? 23 I know this letter is to the Minister 24 charged with Hydro but if they can't talk to the 25 Minister who's got administration of Hydro, it seems 5862 1 difficult to understand that if Manitoba Hydro is 2 saying that, as I thought I understood you to say, 3 that you weren't or hadn't been informed or didn't 4 know that the Manitoba Metis Federation was looking 5 for a deeper consultation or more consultation or any 6 consultation. 7 THE CHAIRMAN: Was there a question in 8 there? 9 MS. TEILLET: I guess really the question 10 is this. Are you saying that you didn't know that 11 the Manitoba Metis Federation wanted to be consulted 12 about Hydro projects in general or Wuskwatim in 13 particular? 14 MR. ADAMS: I have trouble remembering a 15 specific letter to a Minister five years ago but I 16 understand there was a response to that. If you're 17 going to file the letter, I will try to undertake to 18 file the response. 19 Certainly Manitoba Hydro understood the 20 MMF was to be consulted and we invited MMF to all of 21 the public houses or the open houses. We invited the 22 communities that we were consulting with on a 23 one-on-one basis to bring along whoever they wanted. 24 So clearly, the consultation is available to anybody 25 and we invited MMF to participate. 5863 1 MS. TEILLET: Can I ask perhaps would you 2 consider an invitation to a First Nation to 3 participate in a public meeting, would you consider 4 that fulfilling your consultation obligation with 5 that First Nation? 6 MR. OSLER: From the perspective of the 7 PIP process, we didn't do it that way. But I go back 8 to the structure that I laid out. We focused on the 9 physical communities inside a defined area. We 10 contacted the people in those communities. We 11 discussed with them how they would like to be 12 consulted with and proceeded accordingly. And that 13 included First Nation communities or other 14 communities including the Wabowdens and the 15 Cormorants that we were just talking about. 16 In this particular area, and these 17 particular sets of Hydro projects, that is consistent 18 with the way in which agreements and discussions and 19 compensation has evolved to date with fishermen and 20 with communities and with trappers and everything 21 else. 22 The point that we made is nothing more 23 than in the process of all of this, we also provided 24 information to other organizations, other people, 25 including MMF, which is what has been put on the 5864 1 record. And except for the discussions that took 2 place on PPT, pre project training, sorry. It was 3 confirmed on the transcript in Volume 15, pages 3578 4 and 3579 that we had no correspondence as a result of 5 that process to the group that we're dealing with, 6 trying to deal with the Wuskwatim project, from the 7 MMF. It doesn't mean you didn't correspond with 8 ministers or with presidents or with chiefs or with 9 others, but in response to what we were responsible 10 for for this project in sending out information and 11 asking if anybody had any questions and wanted any 12 information they wanted to give us, we had received 13 nothing. That's the only point I'm making. 14 MS. TEILLET: I guess I'm not getting an 15 answer to the question I'm asking. Would you 16 consider inviting a First Nation to a public meeting 17 or inviting First Nations to an open house to fulfil 18 your consultation requirements with that First 19 Nation? 20 MR. OSLER: In some cases it might and in 21 other cases it wouldn't. It would depend entirely on 22 the nature of the pathways and the effects of what we 23 had to discuss with them. 24 MS. TEILLET: If the First Nation is in 25 the project area, would you consider an invitation to 5865 1 a public meeting to fulfil your consultation 2 requirement? 3 MR. OSLER: And I've answered that and 4 said no. 5 MS. TEILLET: Thank you. And if you sent 6 an invitation to that First Nation or a letter saying 7 please tell us what your concerns are and they didn't 8 respond, would you consider that to be the fulfilment 9 of your consultation obligation to that First Nation? 10 MR. OSLER: Well, dialogue requires 11 two-way communication. You can't consult with 12 someone if they don't consult with you. So I don't 13 want to go too far with hypotheticals. In general, 14 we didn't do what you're describing. We actively 15 went and discussed with people and the communities 16 and the regions and the trappers, the other people, 17 we actively sent letters many times to many 18 organizations. We did not rely on any formality of 19 saying, geez, we sent you a letter once and you never 20 got back to us. So I don't want to go down that 21 path. 22 MS. TEILLET: You gave quite a lot of 23 detail when we were here on Tuesday about the 24 consultation you've undertaken with NCN and the 25 consultation -- and I understand you included all the 5866 1 people who lived in South Indian Lake in that because 2 you recognized that, I think your EIS says 80 to 90 3 per cent of the people in South Indian Lake are 4 members of NCN? 5 MR. OSLER: Correct. 6 MS. TEILLET: And so you wrapped them 7 into the project area, not the local project area 8 but -- 9 MR. OSLER: No, they were actually in 10 what we called the local project region. 11 MS. TEILLET: So they are in the project 12 region and you wrapped them in and considered them to 13 be part of NCN and what you were doing. Can I ask 14 did you do the consultation with the off-reserve Band 15 members in South Indian Lake in a different way than 16 you did with NCN itself, with the people itself? 17 MR. OSLER: That's a very hard question 18 to deal with because when we deal with the community 19 of South Indian Lake, there are many organizations. 20 But in short, there is a consultation work plan with 21 the various elements of South Indian Lake, four or 22 five different groups including fishers and trappers 23 and Northern Affairs community and the CASIL and the 24 headman, where Manitoba Hydro and NCN provided 25 funding for them to retain expertise to review the 5867 1 EIS. So in that sense, all the groups that came to 2 us from that community were all worked together to do 3 this particular type of review that they wanted to 4 do. 5 MS. TEILLET: So you said there's a 6 headman there who was sort of -- 7 MR. OSLER: That's the First Nation 8 community, Mr. Chris Baker, First Nation community 9 that wants to become recognized as well as the role 10 of the headman in the NCN structure. 11 MS. TEILLET: Um-hum. And so he was the 12 representative? 13 MR. OSLER: He was one representative of 14 about four or five groups. And I don't have the list 15 in front of me but it included the Community 16 Association of South Indian Lake, it included the 17 trappers association, the fishermen's association, at 18 least. 19 MS. TEILLET: But I see in your EIS that 20 when you talk about trappers and fishermen, that you 21 consider those to be, I think I am going to quote you 22 and say that they are special interest groups. That 23 that's the way you dealt with commercial fishermen 24 for example. You described them as a special 25 interest group. When you're talking then to your 5868 1 special interest groups, do you consider that to be 2 consultation with the First Nation? 3 MR. OSLER: No. 4 MS. TEILLET: You said that you asked, 5 and it says also in your EIS at 3.3.4 I think that 6 participants were asked how they would like to be 7 consulted and what type of information would be most 8 useful. 9 Did you ask the MMF how it would like to 10 be consulted and what type of information it thought 11 would be most useful to provide for this project? 12 MR. OSLER: In a structured sense of 13 treating them as though they were a community in the 14 region, no. In the sense of the process of dealing 15 with any one of the public processes, open houses and 16 the newsletters always asked people if they had 17 questions or comments or wanted more information, 18 please let us know. In the context of dealing with 19 or describing in this conversation as special 20 interest groups, although it's not really the only 21 way you could describe it. In trying to deal with 22 the resource users who could be directly affected by 23 the project, trappers, fishers in particular, the 24 conversation process was more focused. And we did 25 certainly ask, in each case, what would they like, 5869 1 what were they interested in in terms of information. 2 MS. TEILLET: You were asking 3 individuals? 4 MR. OSLER: Groups of individuals and 5 individuals what information they need to understand, 6 from their point of view, the effects of this 7 trapline -- sorry, this transmission line or the 8 alternative routes we're looking at on their 9 activities as trappers. 10 MS. TEILLET: Now, when you were 11 preparing your EIS, is it your opinion that you have 12 sufficient information on how this project will 13 affect the Metis people in the project region? 14 MR. OSLER: I don't think that we have 15 ability, from what we get back from our process, to 16 have been able to reach the type of conclusions we 17 might like to reach on that because of the lack of 18 dialogue with an official Metis organization or 19 organizations or locals for that matter. 20 And in this particular region, there are 21 non-status as well as Metis people. And one would 22 want to be very careful about trying to draw 23 conclusions just because somebody isn't status on a 24 First Nation that they are necessarily Metis. 25 All I would say is I think we have 5870 1 provided information to all of the people in the 2 region who have direct interests and we certainly 3 made it available. We've had a dialogue with a very 4 large number of them, particularly those who would be 5 affected as trappers with transmission, we've had 6 very good dialogue with those particular individuals. 7 And that would be one of my major concerns in 8 practical terms when dealing with the transmission 9 routes. 10 In the case of the generation projects, a 11 generation project, we, I'm satisfied, had ability to 12 have extensive dialogue with those people whose 13 interests seem to be potentially affected. 14 MS. TEILLET: Your obligation in 15 determining the effects of the project are 16 environmental, you determine environmental effects, 17 socioeconomic effects and cultural effects; is that 18 correct? 19 MR. OSLER: Those are all included, yes. 20 MS. TEILLET: And do you have any 21 information with respect to how this project is going 22 to affect the Metis culture? 23 MR. OSLER: Well, going through the 24 process, we do not have information. I think the 25 discussion we had with South Indian Lake, the 5871 1 cross-examine of South Indian Lake. We have certain 2 information on culture at various levels. We have a 3 great deal of information on NCN at Nelson House 4 because that is a group that's being affected in a 5 large number of different ways. And we appropriately 6 looked at it at a very great level of detail. 7 In contrast, we didn't attempt to get 8 that or anything like that level of detail of 9 cultural information for others. We focused 10 primarily outside of Nelson House/NCN on element of 11 culture through trapping, fishing, hunting. And the 12 extent to which that led to discussions of broader 13 cultural issues, we were open to discuss it but we 14 didn't actively pursue a much broader cultural 15 community, be it First Nation or Metis, non-status or 16 Aboriginal communities. 17 So I'm satisfied we have the information 18 that is needed to do the EIS and that we could obtain 19 from the people who are willing to talk to us. I 20 don't think I would say we have in any way explored 21 or been able to explore a distinctive assessment of 22 culture of those Metis communities in the specific 23 geographic area. 24 MS. TEILLET: So in terms of the Metis 25 culture, you just said you don't have that so I 5872 1 gather then you can't have an idea of how those 2 effects could be mitigated or any other thing like 3 that, that will follow from your discussion that you 4 didn't get that information. 5 MR. OSLER: To the extent that someone 6 comes forward now and says that there is an effect on 7 a culture that we didn't address, we will attempt to 8 address it. But in dealing with the projects as we 9 know them and the range of effect pathways that they 10 have, I'm satisfied that any trapping interests that 11 we're relating to the transmission lines had direct 12 dialogue with the individuals involved, be they 13 status, non-status, Metis or otherwise. And that 14 whatever interests these people had in terms of where 15 to locate these traplines, how to deal with their 16 concerns were addressed to the best of our ability. 17 And that to the extent that they have issues that 18 arise because the trapline is, in the end, affected 19 by the construction of the transmission, they will be 20 addressed through the compensation policies that 21 Manitoba Hydro is addressing. 22 So I know what we have been able to do. 23 Beyond that, we didn't attempt to do what we couldn't 24 do. 25 MS. TEILLET: And with respect to the 5873 1 structure of the open houses that you conducted, were 2 those primarily public meetings where you tried your 3 best to give out as much full information about the 4 project as you could to the people who came to those 5 meetings? 6 MR. OSLER: They are generally a process 7 of providing access to information and people who 8 they could talk with about the information, they 9 weren't generally meetings in the sense of a formal 10 structured meeting. And so if people had follow-up 11 questions they wanted us to pursue, they would be 12 pursued. And if they had wanted more information, 13 we'd get it to them and that type of thing. 14 MS. TEILLET: I guess what I'm trying to 15 get at is they are primarily a dissemination of 16 information vehicle as opposed to a receiving 17 vehicle. They are not really structured for you to 18 sit down and hear the history of a people or anything 19 like that. It's primarily a vehicle for you to tell 20 people what the idea is, what the plan is, what you 21 think is going to happen? 22 MR. OSLER: In the general sense, that's 23 fair. There is opportunity for dialogue but it isn't 24 a public meeting, it's an open house. But for the 25 record, I don't want anybody to assume that the 5874 1 public involvement process or the discussion process 2 to deal with people who might be affected was in any 3 way, shape or form limited to public open houses. 4 That would be a gross inaccuracy. 5 Public open houses were there to make 6 sure that anybody who wasn't getting hold of 7 information through other routes, through the chief 8 and councils, the mayor in councils, the media, the 9 newsletters or whatever would receive public notice 10 and public opportunity to take part. 11 And in the case of local communities, not 12 as big a community as Thompson or The Pas, if 13 somebody had a problem with the leadership and they 14 wanted to get access to information that somehow they 15 didn't think they were getting access to it, that we 16 were making sure that this information was indeed 17 available. And that we could put on the record it 18 was available and we were available to answer 19 questions in such sessions. And if something came 20 from that that needed a meeting or a process, we 21 could follow up on it. 22 But in dealing with the communities I 23 talked about, the initial point was to make contact 24 with their leadership, ask them how they wanted to be 25 consulted with and have meetings with them. 5875 1 And dealing with the trappers, I'm 2 talking about far beyond open houses. One-on-one 3 discussions with the trappers associations and 4 dialogue and listening to what they wanted to tell 5 us. 6 MS. TEILLET: Right. And that's the 7 specific group of trappers. But it's the open houses 8 that you said is what the MMF were invited to? 9 MR. OSLER: That is true. 10 MS. TEILLET: Right. And that's really 11 it. 12 MR. DAVIES: I would like to answer that. 13 THE CHAIRMAN: Mr. Davies. 14 MR. DAVIES: I'd like to add to that a 15 bit. The open houses at Nelson House were, to a 16 large extent, set up for a two-way dialogue of 17 information. The community consultants, the NCN 18 community consultants did take everyone around that 19 came in, everyone that wanted to, and explained the 20 storyboards to them and got input from those 21 individuals as they provided the information that was 22 on the storyboards. They did that in both English 23 and Cree as the person wanted. 24 In addition to that, there were note pads 25 that were set up at each of the main components of 5876 1 the open house that people could record their 2 comments on it. In addition to that, the experts 3 that had conducted the environmental studies and 4 socioeconomic studies and routing studies also 5 attended the open houses and were there to provide 6 input to the people and answer their questions but 7 also to ask questions. And that occurred 8 particularly in regards to heritage resources but it 9 did occur for all of the components. 10 In addition to that, there was a 11 questionnaire that was provided at the open houses 12 that specifically asked about the information that 13 was being presented, whether it was being presented 14 in a proper format, whether they liked the type of 15 consultation that was being provided and if they had 16 any additional ideas for providing information to 17 them. So there really was a two-way dialogue at the 18 open houses. 19 MS. TEILLET: That's the one at Nelson 20 House you're describing or is that a standard for all 21 of them? 22 MR. DAVIES: There was a number of open 23 houses at Nelson House and that's what occurred at 24 Nelson House. Similarly, it did occur at the open 25 houses in Thompson, slightly different but of similar 5877 1 nature. 2 MR. HICKS: If I might add a bit on the 3 transmission side. The meetings with the 4 communities, the initial round of meetings with the 5 elected representatives was, as much as anything 6 else, to obtain advice from them as to how to conduct 7 consultation and whom we should be talking to, how we 8 might want to advertise the meetings, how we might 9 want to organize the meetings. 10 The second and third round consultations 11 were to the extent that it's important for someone to 12 understand the nature of the project. Yes, there was 13 information provided in the form of storyboards and 14 presentations but the principal purpose of those 15 meetings was to hear from the people in attendance 16 what kinds of concerns, what kinds of issues that 17 they associated with the proposals in front of them. 18 MS. TEILLET: When you speak of the first 19 round was to the elected representatives, you were 20 speaking of mayor and council? 21 MR. HICKS: Mayor and council or chief 22 and council as the case may be. 23 MS. TEILLET: No Metis elected 24 representatives as in terms of Manitoba Metis? 25 MR. HICKS: Our consultation protocol, if 5878 1 you will, for many years in transmission has been at 2 the local level to open contact with the elected 3 representatives as much as a courtesy in protocal as 4 anything else, to give them some advice as to what's 5 going on in their constituency. And again, more 6 precisely, to ask their advice as to how to deal with 7 constituency residents in the area. 8 MS. TEILLET: Again, just to clarify, 9 you're speaking about the municipal elected 10 representatives? 11 MR. HICKS: Yes. Northern Affairs 12 communities, some municipalities, one local 13 government district, one Northern Affairs community 14 that's not governed by chief and council or rather 15 mayor and council but rather by an administrator and 16 by the First Nations themselves. 17 MS. TEILLET: And nothing with the 18 elected Manitoba Metis Federation locals? 19 MR. HICKS: They were invited to the open 20 houses, yeah. 21 MS. TEILLET: To the open houses, yes. 22 We've got that one. 23 I heard a lot about trappers, dealing 24 with trappers to try and find out what those 25 interests were. Now, how about food usage of the 5879 1 harvest? Because a lot of the Metis people up there 2 are obviously heavily reliant on the resources for 3 food. Did you have special consultations with 4 respect to the Metis use of the resources for food? 5 MR. OSLER: We're talking about each of 6 the developments? In each case, we were interested 7 in any party, Aboriginal or otherwise, who had any 8 activity, trapping, hunting, fishing, gathering for 9 food or otherwise, in any of the areas that we were 10 looking at for the projects. So to the extent 11 that -- the process was designed to make sure the 12 people would know where the projects are. That the 13 leaderships in each community and the various groups 14 in each community would know and that they could, 15 therefore, have the ability to talk to us about any 16 concerns they had including gathering or plants or 17 any other activity that they do traditionally or 18 otherwise in the area. 19 MS. TEILLET: I have a quote here from 20 your EIS, and I'm sorry, I seem to have deleted the 21 reference but it will be somewhere in this chapter 3 22 in Volume 1 of the Generation one. And it really 23 says that there is an ongoing commitment to meet with 24 interested communities in the project region to 25 examine together ways to address specific concerns. 5880 1 In this regard, Manitoba Hydro and NCN 2 are seeking to develop joint consultation plans with 3 interested Aboriginal communities to focus on 4 specific impact issues relevant to each Aboriginal 5 community. 6 I have two questions out of that which 7 will probably be my final questions. But the two 8 questions are this. Are you prepared to meet with 9 the MMF as you have committed to here in order to 10 address its specific concerns? And number two, are 11 you prepared to develop joint consultation plans with 12 the MMF that focus on their relevant and specific 13 impact issues? 14 THE CHAIRMAN: Mr. Adams. 15 MR. ADAMS: I'm going to respond to that. 16 Our commitment is to meet with the communities and I 17 think we've made that extremely clear. If the 18 communities wish to invite MMF or any other 19 organization to consult with them, then certainly 20 we'll be prepared to include them. 21 We have a commitment to meet with the MMF 22 to discuss areas of a variety of interest. There is 23 a mechanism in place where we have a, I've forgotten 24 exactly what we call it, a joint task force or 25 committee that's ongoing with the MMF. I don't think 5881 1 it is appropriate for Manitoba Hydro to conduct a 2 joint consultation program with the MMF with respect 3 to the Wuskwatim project. 4 MR. OSLER: If I could just make one 5 other observation, is the quotes from the EIS 6 referred to the commitments during the process. Any 7 time during the process we had that type of approach, 8 particularly even during rounds 4 and 5, if somebody 9 had come at us and wanted to discuss it, that's why 10 we had the workshops and stuff. But beyond that, the 11 process has to deal with concerns of effects. 12 At the moment, the key Aboriginal issues 13 are being dealt with by the Crown and the Crown will 14 presumably take all of these things into account when 15 it gives us terms and conditions of any project that 16 it approves. 17 MS. TEILLET: Just one moment, please, 18 Mr. Chair. Mr. Chair, we have no more questions for 19 the proponents at this time. Thank you. 20 THE CHAIRMAN: Thank you. Were there 21 other questions from other groups on the EIS at this 22 time or is that completed? Mr. Grewar, were there 23 other groups that had not proceeded? 24 MR. GREWAR: Yes, Mr. Chairman. There is 25 at least one other group that is preparing to 5882 1 cross-examine on the 25th I believe which is the 2 Displaced Residents of South Indian Lake. They are 3 not available for cross today. So we would proceed 4 presumably now to presentations. 5 THE CHAIRMAN: All right. Thank you. So 6 that is all for now. So we're going to have a short 7 break so we can change things around. And we will, 8 when we come back, have the MMF presentation. I'm 9 told it will take approximately an hour and a half. 10 So that should carry us on till noon. So we'll 11 reconvene here now at quarter after ten. 12 13 (PROCEEDINGS RECESSED AT 10:00 A.M. and 14 RECONVENED AT 10:24 A.M.) 15 16 THE CHAIRMAN: Mr. Grewar. 17 MR. GREWAR: I wonder if I could ask each 18 one of you to individually state your name and 19 provide the spelling, please, for the transcriber. 20 MR. A. BENOIT: Al Benoit, A-l is Al. 21 Benoit is a little bit more complicated, B-e-n-o-i-t 22 MR. MONTGOMERY: Darryl Montgomery, 23 D-a-r-r-y-l, M-o-n-t-g-o-m-e-r-y. 24 MR. CHARTRAND: David Chartrand, 25 D-a-v-i-d, C-h-a-r-t-r-a-n-d. 5883 1 MS. TEILLET: Jean Teiller, J-e-a-n. The 2 last name is T-e-i-l-l-e-t. 3 MR. MORRISSEAU: John Morrisseau, 4 M-o-r-r-i-s-s-e-a-u. 5 MR. D. BENOIT: Dan Benoit, same as the 6 first. 7 MR. GREWAR: I'll ask you all then if you 8 are aware that it is an offence in Manitoba to 9 knowingly mislead this Commission? 10 MMF: Yes. 11 MR. GREWAR: Having all indicated in the 12 affirmative, do you promise to tell only the truth in 13 proceedings before this proceeding? 14 MMF: Yes. 15 MR. GREWAR: Thank you. 16 17 (AL BENOIT: SWORN) 18 (DARRYL MONTGOMERY: SWORN) 19 (DAVID CHARTRAND: SWORN) 20 (JEAN TEILLET: SWORN) 21 (JOHN MORRISSEAU: SWORN) 22 (DAN BENOIT: SWORN) 23 24 MS. TEILLET: This is Jean Teillet and I 25 am legal counsel for the Manitoba Metis Federation 5884 1 with respect to this matter. But in terms of the 2 fact that I am up here as part of the Manitoba Metis 3 Federation's presentation, I would also like to 4 inform the panel that I was born and raised in Red 5 River and that I am a descendant of the Riel family 6 and this is my turf, too. So I am legal counsel and 7 a member of the Manitoba Metis community although I 8 don't currently live here. 9 I had thought that a good title for the 10 MMF's presentation might be "plus ca change, plus 11 c'est la meme chose." I don't have to translate that 12 for the Chair. But for those of you who don't 13 understand French, it means the more things change, 14 the more they stay the same. 15 By the end of our presentation, I think 16 this Commission and the people attending will be 17 struck by how, with respect to the Metis people in 18 Manitoba, all parties here are walking the same path 19 and saying the same things that they have been saying 20 for more than 40 years. 21 Since the 1960s, Hydro has taken a fairly 22 consistent position with respect to the Metis; first, 23 that none of their projects will affect the Metis; 24 and second, that they need not consult with the Metis 25 as a people or with their elected representatives, 5885 1 the Manitoba Metis Federation. This is precisely the 2 relationship we are witnessing today and it has a 3 history that this Commission and the people in this 4 room need to understand. 5 We all know the old saying that if you 6 don't know your history, you are condemned to repeat 7 it. And so in order to tell you that history, we had 8 asked two Metis elders, Senator Head and Mr. 9 Morrisseau to speak briefly about the Metis historic 10 relationship with Hydro. Unfortunately Senator Head 11 is ill and unable to be here today so he has some 12 written comments that will be presented by Mr. Dan 13 Benoit. But Mr. Morrisseau will speak. 14 Now, Senator Head's comments will be 15 addressed to Hydro's historical refusal to consult 16 with the MMF and his own personal observations and 17 experiences as a fisherman in South Indian Lake. And 18 specifically he is witness to, and I am going to use 19 his own words, the destruction of that community by 20 Hydro. Mr. Morrisseau is going to briefly speak 21 about a specific Metis community, Grand Rapids, and 22 how its culture was destroyed by Hydro. 23 Now we know that Grand Rapids is not in 24 the project area but the fact is that the Metis 25 people are a highly mobile people for many reasons. 5886 1 First because it's one of their cultural markers. 2 It's one of the things that identifies the Metis as 3 Metis is their mobility. And second, because there's 4 a long history in this country and in this province 5 in particular of the destruction of their communities 6 which forces their mobility. 7 In recent times, a great many of these 8 communities have been destroyed by Hydro and the 9 devastating cultural and social effects from Hydro 10 projects have moved with those people as they 11 relocate into other communities. 12 Now, Grand Rapids shows us a perfect 13 microcosm of the cultural devastation which is 14 unacknowledged, uncompensated and unrepaired for the 15 Metis people. It is what we call the legacy of 16 Hydro. It is an example that we all have to bear in 17 mind because Hydro is continuing to change the face, 18 the physical face of Northern Manitoba which is the 19 traditional territory of the Metis people. Mr. 20 Morrisseau is also going to speak about the Manitoba 21 Government's promises, unfulfilled promises with 22 respect to compensation for the Metis. 23 Mr. Darryl Montgomery is the 24 vice-president of the Thompson region and he is also 25 from South Indian Lake and he is going to speak on 5887 1 the effects on South Indian Lake and as well on some 2 of the consultation issues with respect to the local 3 there. 4 And Mr. Al Benoit is going to present an 5 overview of MMF's written submission and give a great 6 deal of the evidence that we want you to hear. 7 Finally, President Chartrand is going to 8 make our final comments and he's also going to 9 present our proposed recommendations and solutions 10 with respect to how both the proponent and the 11 government and this Commission should deal with the 12 problems that have been consistent in this process. 13 Now, I'm going to begin by setting out 14 some of the legal framework. And we have handed out 15 several documents for putting in the record. So we 16 ask that these be included as exhibits in the record. 17 I'd like to start off by a discussion 18 about the mandate of this Commission, the CEC, the 19 Clean Environment Commission. And what we basically 20 say is that the CEC has a mandate in its terms of 21 reference to, and I'll quote, "consider the potential 22 environmental, socioeconomic and cultural effects of 23 the construction and operation of the Wuskwatim 24 proposals." In order to determine these effects or 25 what these effects are, this Commission is to 5888 1 consider the EIS, public concerns and consideration 2 of the evidence it received on the NFAAT. 3 Now, this Commission is also to provide 4 recommendations with respect to proposed mitigation 5 measures and future monitoring and research. 6 Now what we say is that the mandate of 7 the CEC necessitates an inquiry into the effects of 8 the Wuskwatim projects on the Metis in the project 9 region. 10 Now according to the EIS statistics, and 11 I think they are taken from the 1996 census, is that 12 there are approximately 30,000 people in the project 13 region. And that's total population numbers. Of 14 that, I'm giving approximate numbers, approximately 15 33 per cent of those or about 10,000 people are what 16 we would call status Indians. And the MMF submits 17 that there are approximately 10 per cent of the 18 people in the project region, that's about 3,000 19 people, who are Metis who are represented by the MMF. 20 Now the MMF figures we are telling you are low 21 minimum figures. And we are talking about the 22 project region itself. We're not talking about the 23 northern district or the other ways of slicing the 24 Northern Manitoba pie. 25 Now, we submit that unless this CEC 5889 1 receives information with respect to the potential 2 environmental, socioeconomic and cultural effects of 3 this project on the Metis, then you will not be able 4 to fulfil your mandate. You will not be able to make 5 full and complete recommendations on the effects 6 because you will be missing information with respect 7 to 10 per cent of the people who live in or use and 8 occupy the project region. And that 10 per cent is 9 specifically named as a distinct Aboriginal people in 10 the constitution of this country. And we say they 11 cannot be ignored again. 12 We also say, with respect to the EIS, we 13 say the EIS is deficient. We say the EIS is 14 deficient in providing the information this 15 Commission needs to fulfil its mandate with respect 16 to the Metis people. 17 The proponent was to prepare the EIS 18 pursuant to the guidelines which have several 19 sections directing them to provide information 20 required by government agencies to be considered. 21 And I'm just going to list a few of them. But 22 obviously they are to include information with 23 respect to potential socioeconomic and cultural 24 effects, descriptions of the use of traditional 25 knowledge, mechanisms to manage the effects of the 5890 1 project, effectiveness of mitigation strategies. 2 The scope of the environmental assessment 3 in the EIS was to include examination of current 4 human health, current use of lands and resources for 5 traditional purposes, domestic harvesting, commercial 6 use of resources. There is also supposed to be 7 sufficient detail regarding domestic harvesting to 8 predict project-related effects. The EIS was 9 supposed to describe the economic base of the 10 Aboriginal communities, a general description of the 11 personal, family and community way of life of 12 Aboriginal communities including population and 13 demographic profiles, way of life, culture, 14 spirituality, community cohesion and organization. 15 They were also to describe historic land use and 16 occupancy in the study area, culturally important 17 sites, burial sites, et cetera. 18 Now, what we say to you, and I think we 19 heard it again this morning, is that the proponent 20 has not provided any of this information with respect 21 to the Metis. And we ask you to ask yourselves to 22 the Commission when you are examining this EIS in 23 terms of making your recommendations, where, in the 24 EIS, is the description of family or community life 25 of the Metis population? Where, in the EIS, is the 5891 1 Metis demographic or population profile? Where is 2 the description of the culture of the Metis? Where 3 is the description of historic land use and occupancy 4 in the study area? Where is the description of Metis 5 culturally important sites? Where is the description 6 of the traditional knowledge of the Metis? Where is 7 the use of Metis traditional knowledge in the 8 analysis of potential effects? Where is the 9 examination of Metis health, socioeconomic and 10 cultural conditions? Where is the description of 11 Metis current use of lands and resources? Where is 12 the examination of Metis domestic harvesting or 13 commercial harvesting? And where, in the EIS, is the 14 sufficient detail regarding domestic harvesting to 15 predict project related effects? 16 And in the face of that total lack of 17 evidence on any Metis cultural, socioeconomic 18 effects, we would like to point out to the Commission 19 there's obviously no surprise that there are no 20 mechanisms to manage the effects of the project on 21 the Metis or on the effectiveness of mitigation 22 strategies employed with respect to the Metis. 23 We are asking the Commission to take note 24 of this complete lack of evidence with respect to the 25 socioeconomic and cultural effects on the Metis 5892 1 people and include this deficiency in your 2 recommendations report. 3 Now, having said that, we know that 4 issues with respect to the Metis are not easy. There 5 are complexities here that need to be grappled with. 6 And so we want to make some statements about those by 7 way of trying to help. 8 When we were here on Tuesday and I asked 9 a question of the -- I actually can't remember 10 whether it was a question I directed to the project 11 administration team or to Manitoba Conservation but 12 it was to one of them, and I made the comment that 13 Metis were a minority in many of these communities 14 that we're dealing with. And from behind us, we 15 heard comments from Manitoba Conservation saying no, 16 no, no, they are not. And I take that as a need for 17 information. That's the spirit we're trying to 18 approach, that you all need information here in order 19 to properly do your jobs. So that is the spirit in 20 which we're going to operate here. 21 So I want to point out first that we know 22 there's problems with who are the Metis. It's an 23 issue. We're not trying to side step that. 24 I want to point out that prior to 1982, 25 there were different names for all of the Aboriginal 5893 1 peoples in Canada. We used to know them as Indians, 2 Eskimos and half-breeds. The fact is that none of 3 those terms accurately reflect the cultural societies 4 of the people they are supposed to describe. Indians 5 is a legal term. It encompasses many different 6 peoples. Eskimos is completely jettison to these 7 days. And half-breeds has been replaced. They are 8 all replaced now. We call First Nations, Inuit and 9 Metis. 10 To most outsiders, including government, 11 we would suggest to Hydro and perhaps to this 12 Commission, the term "Metis" is confusing and there 13 are lots of reasons for that and we're going to just 14 walk through a few of them. 15 The first one is we say there's confusion 16 here because often the term is used to apply to two 17 distinct groups of people as if they are one group of 18 people. Many people think that the term "Metis" 19 means all off-reserve Aboriginal people or all 20 individuals who have some mixed 21 Aboriginal/non-Aboriginal ancestry. Often these 22 individuals are called non-status Indians, a term 23 that reflects simply the fact that these people are 24 not registered under a Registry Act in Ottawa. 25 We would like to make it clear that the 5894 1 use of this term to encompass those people, the use 2 of the term "Metis" to encompasses those people is 3 incorrect. Anyone, any individual who identifies as 4 a Cree or as a Dene or as a member of a First Nation 5 is stating that their allegiance and association is 6 with that First Nation. That's what they are telling 7 you by saying that, is that they are legally, and I 8 don't really actually want to get into the legalities 9 of Indian because it's very misleading, but they are 10 stating that their allegiance and association is with 11 the First Nation. And by the very fact that they 12 have said that, that is not identification as Metis. 13 Now there's another source of confusion 14 and it arises from our ongoing terminology here. Now 15 as I said, up until actually the 1960s and seventies, 16 we used the term half-breed in English. And there is 17 an ongoing naming evolution that's been going on all 18 across North America and it's probably easiest 19 understood if you look at what's happened with 20 American Blacks. We used to call them Negros or 21 coloureds. I won't say some of the other derogatory 22 terms that they have been called. They now ask to be 23 called African Americans. And what it is is an 24 evolution trying to get away from describing people 25 by their colour and trying to describe them rather by 5895 1 their historical roots or where they come from. It's 2 an ongoing process. 3 The same process has been happening for 4 all Aboriginal people in Canada. So First Nations 5 now are changing. They don't want to be called 6 Indians for the most part anymore, they want to be 7 called First Nations. But at the same time, they are 8 often taking back their own language names for 9 describing who they are. 10 And I am not going to insult the people 11 from NCN by trying to pronounce your name badly but 12 it's a perfect example. You're not calling yourself 13 the Nelson House Indians anymore, Indian Band, you 14 have taken your own language back to self-identify as 15 who you have always been. And the Metis people are 16 the same. 17 So you should understand that the term 18 "half breed", it's in the 1960s and seventies, as 19 this evolutionary language process is going on, that 20 we started as a greater Canadian public to understand 21 that the term "half breed" is incredibly derogatory. 22 Breeding is not something we do with people, it's a 23 term that comes with animal husbandry. We breed 24 animals and I leave it to you to decide which part of 25 the half-breed is the human being. 5896 1 Now when we decide gradually in the 2 sixties and seventies that half-breed was too 3 derogatory to use, the term gradually evolved into 4 Metis. Now Metis was a term that is an ancient 5 self-described term by the Metis nation here. But 6 the general spreading out to use it to include what 7 had previously been half-breeds, meaning other 8 Aboriginal people who have mixed ancestry, is what 9 began to happen in the sixties and seventies. And 10 that's still the problem we're dealing with today. 11 I'd like to also point out using the term 12 "half-breed" is very convenient for government or was 13 convenient for government because it's, how should we 14 say, it has much less political significance to say 15 that somebody is a half-breed. It implies that they 16 have a questionable claim to Aboriginal rights and 17 title and that they are not a people. It implies 18 that you are simply a half an animal or half a person 19 and that you have no political rights. 20 Now, third source of the confusion about 21 Metis identify of course stems from the continuing 22 changes to the Indian Act. Started in the 1870s when 23 the government started to say that only people who 24 were descended from their fathers who were status 25 Indians could become and people who married out or 5897 1 were descended of mothers would be struck off. That 2 was a huge change. It followed through for many 3 decades. 4 And then in 1985, I don't probably have 5 to go into great detail about Bill C-31. Suffice it 6 to say that the amendments to the Indian Act have had 7 a considerable effect on politics of Indians and 8 Metis in Canada. 9 Another contributing factor to the 10 confusion about Metis is that the Federal Government 11 accepts jurisdiction for Indians on reserve. Many of 12 us question that. But 91.24 says that they have 13 jurisdiction for Indians and lands reserved for the 14 Indians. The Federal Government interprets that as 15 Indians on lands reserved for Indians. It's a much 16 narrower interpretation. 17 But what they say then is that the 18 Provincial Government has jurisdiction for all 19 off-reserve Indians and for Metis. Of course this is 20 denied by the provinces who say they don't have 21 jurisdiction for these people at all. But it has 22 contributed to this tendancy to lump these two 23 separate peoples together into one bag. 24 The other problem is that prior to the 25 creation of reserves, both Indians and Metis share a 5898 1 territory. And I want to say it has usually been 2 very peaceful. They've shared overlapping harvesting 3 areas and they have very close family ties. So this 4 closeness between Indians and Metis has also been one 5 of the confusing factors. 6 After treaties were entered into and 7 Indians were gradually relocated to reserves, Metis 8 were never relocated though. So what we have there 9 is confusion. We have a gradual solidification of 10 identification of Indians but a continuing, shall we 11 say continuing confusion about identifying Metis who 12 remain as they were before reserves were created. 13 I have just given you a whole bunch of 14 reasons why we're confused. So then we sort of go 15 okay, well then who are they? Who are the Metis? 16 I think that the Royal Commission on 17 Aboriginal Peoples and recently the Supreme Court of 18 Canada and Powley has given us a very clear 19 statement, that Metis are a distinct Aboriginal 20 people. They are not merely individuals with mixed 21 Aboriginal blood. And what we would say to you is 22 this. This is an old fact of history. And it has 23 been reaffirmed in Section 35. 24 What's new about Section 35 is the 25 recognition and the commitment that the government, 5899 1 supposedly from Section 35, is going to deal with the 2 Metis as a people from now on. They are not going to 3 deal with them as individuals anymore. In support of 4 that, I point out to you the word "peoples" is used 5 three times in Section 35. It's clearly not meant to 6 deal with individuals who have constitutional rights 7 but rather collectivities that have human 8 constitutional rights. 9 Now, the Supreme Court of Canada said in 10 Powley just six months ago, September of 2003, that 11 the Metis refers to distinctive peoples who, in 12 addition to their mixed ancestry, developed their own 13 customs way of life, recognizable group identity 14 separate from Indian or Inuit and European 15 forebearers. 16 Now, the Ontario Crown in Powley all the 17 way up at all levels of court tried to argue that the 18 Metis were not a people and that they should be 19 treated as part of that big lump of off-reserve 20 Indians and non-status people and Metis, that they 21 were all the same, that they should all be treated as 22 one group. And all levels of court rejected this 23 idea, and I mean all levels. Fourteen judges 24 rejected this theory. There's not even a dissenting 25 judgment in the pile. Fourteen judges said that 5900 1 approach is wrong. 2 Now, this unfortunately -- exactly what 3 was disapproved by all those 14 judges in the Supreme 4 Court of Canada is exactly what we have heard is the 5 process that's being followed in this environmental 6 assessment, in the EIS, by the proponent and by the 7 Manitoba Government. So they have treated Metis as 8 if they are merely individuals with a questionable 9 claim to Indian rights. And the proponent has made 10 no attempt, and I think we heard that this morning, 11 to treat the Metis as a people with distinct 12 practices, customs, traditions, cultural way of life. 13 Now, I'm going to provide you with the 14 definition of the Metis that has been recently 15 adopted by the Metis nation. And the Metis nation is 16 the self-described name of the distinct Aboriginal 17 people, the historic Metis nation sometimes called 18 the Red River Metis or sometimes called Riel's people 19 which is consistent with the Supreme Court of Canada 20 guidelines set out in Powley and that is this. A 21 Metis means a person who self-identifies as Metis, is 22 of historic Metis nation ancestry as distinct from 23 other Aboriginal peoples and is accepted by the Metis 24 nation. 25 So what they are saying to you is that 5901 1 self-identification, a tie, a genealogical tie 2 descended from the historic Metis nation, not just 3 lost your Indian status, but descended from the 4 historic Metis nation and accepted by the Metis 5 nation. Now, so we've given you the basics of who 6 are the Metis. 7 Now with respect to consultation. 8 MR. SARGEANT: Could I ask for an 9 elaboration, Ms. Teillet? Who or what is the 10 historic Metis nation? 11 MS. TEILLET: The historic Metis nation 12 that we're talking about are the people who lived, 13 used and occupied an area that the Metis nation 14 itself generally says stretches from some sort of 15 perhaps the Sault Ste. Marie in Ontario, maybe 16 somewhere in the north. We don't know the outer 17 boundaries of it, but somewhere around there and 18 comes west. Certainly it would include all of the 19 prairie provinces. It goes a bit into the Northwest 20 Territories where it's sort of the bottom of the 21 Great Slave Lake and a little bit into the 22 northeastern corner of British Columbia. Certainly 23 that Kelly Lake area up around northeastern British 24 Columbia. And also dips down into the northern 25 United States, into Montana and North Dakota, that 5902 1 kind of area. These are the people who have 2 fulfilled, and if you read the Royal Commission 3 report, if you're looking for it, it's in Volume 4 of 4 the Royal Commission report. There's a whole 5 chapter, I think it's chapter 5, that's on the Metis. 6 And there's a complete description there of this 7 historic Metis nation. 8 MR. SARGEANT: I don't know if it's just 9 coincidental, but that's a similar area to that 10 covered by the numbered treaties, the post 1870 11 numbered treaties. 12 MS. TEILLET: Yeah, I think you're right 13 with the exceptions of these into Sault Ste. Marie 14 area which is Robinson Superior Treaty. But I think 15 essentially you're right, that that area has been 16 covered by the treaties. 17 I would point out to you with respect to 18 the treaties that the Supreme Court of Canada in 19 Powley said specifically that the treaties did not 20 extinguish the Aboriginal rights of the Metis because 21 they didn't sign on as collectives. But I never 22 thought about it that way before. 23 All of this leads us to the issues at 24 hand. The president is pointing out to me that the 25 Manitoba Act is considered by some people to be a 5903 1 Treaty or certainly the negotiated agreement that 2 Ritchot made with the government that was implemented 3 by the Manitoba Act could be considered treaty. And 4 of course if you know the history of the numbered 5 treaties, you know that there is a half-breed 6 addendum to Treaty 3 which is the only other 7 collective signing on of the Metis to Treaty. But I 8 guess I should point out that the Manitoba Act refers 9 to the postage stamp province and not the project 10 area. 11 All of this leads us to the conundrum 12 we're facing which is the complexities of 13 consultation with the Metis. 14 Now with respect to the Metis, it's 15 suggested, we suggest, that the proponent and the 16 Crown have the same consultation obligations to the 17 Metis as they have to all other Aboriginal people. 18 And we say that the consultation obligation really 19 has two parts to it. The first one is it must take 20 steps to inform the people who are going to be 21 affected about what it's going to do. I think that's 22 probably the part of consultation that we all accept 23 and understand the best, is that the proponent, in 24 this case Hydro and NCN, have an obligation to tell 25 us what it is they are thinking about doing in a fair 5904 1 amount of detail. 2 But there's another part to consultation. 3 It's a second part of it and an important part. They 4 have to inform themselves about the people who are 5 going to be affected so that they can -- they have to 6 understand the culture, what we called I think on 7 Tuesday we were talking baseline information and 8 that's baseline cultural information too, not just 9 baseline wildlife information or baseline geography. 10 But what's the baseline culture that you're looking 11 at? Because if you don't understand what's there to 12 begin with and you don't really look at what's there 13 to begin with, you can't possibly understand how the 14 project is going to affect those people. So that's 15 step two. 16 One first step, give out information. 17 Second step, inform yourself fully about the cultures 18 that you're looking at. 19 Now with respect to consultation 20 obligations, we say there's really two issues that 21 are raising their head here over and over and over 22 again. And the first one is this, who do you have an 23 obligation to consult with? Who is it you consult 24 with that will fulfil your obligation? Maybe that's 25 a better way of stating it. And then the second one 5905 1 is this. Is a Metis collective synonymous with a 2 physical community? Like can you consult with a 3 physical community and say that fulfills your 4 obligations? So those are two issues that I really 5 want to look at here because I think they are the 6 issue that keeps coming up whenever we hear everyone 7 talking about what's happened here. 8 What we say to you is that as a general 9 principle, the government's consultation obligation 10 must be directed to the Aboriginal peoples as a 11 collective because Aboriginal rights are collective 12 rights. Consultation with individual members of the 13 collective will only inform about that individual's 14 interests. They cannot inform about the collective 15 rights or aspirations of a whole people. 16 Now as with consultation implemented with 17 Indians, consultation with Metis must begin with 18 their elected representatives. Now we admit some 19 more complicated task for Metis than for Indians. 20 That's because, as we said earlier, Metis don't live 21 in discrete physical communities equivalent to 22 reserves. 23 And as I said earlier, the government 24 gathered up Indian people and plunked them down on 25 reserves. We can have a long discussion about 5906 1 whether that was a good thing to do or a bad thing to 2 do. I'm going to stay away from that conversation 3 for today. But the fact is that's what happened. 4 And so the government itself created 5 these bodies called Chief and Council. They created 6 the physical thing, entity, geographic entity and 7 they created Chief and Council. And now they accept 8 that and we accept it in law as the body that 9 represents Indian people and so we talk to it. 10 Now what's happening here is that the 11 Metis people, in any given region, are rarely 12 synonymous with any physical village, city or town. 13 And this is because the Crown didn't pick them up and 14 plunk them onto a reserve. Metis people continue to 15 live, as most Aboriginal people lived prior to the 16 creation of reserves, scattered throughout their 17 traditional territory. Some live on reserves. Some 18 live adjacent to reserves. Some live in the bush. 19 Some live in cities, towns or villages. 20 Now I told you earlier that one of the 21 cultural markers of Metis is that they are very 22 mobile. And it's really interesting to note that the 23 latest census statistics bear out the fact that this 24 cultural marker for Metis hasn't changed. The census 25 data from 2001 shows that the Metis people that they 5907 1 surveyed, 25 per cent of them have moved within the 2 previous year. And that is almost double, if not 3 more than double, what the average Canadian moves. 4 So what we say to you is that under these 5 circumstances, the mobility of the people and the 6 fact that they are scattered does make consultation 7 complicated. But I'd like to quote from the Supreme 8 Court of Canada. It may be complicated but it is not 9 an insurmountable task. 10 Now what we say to you is the issue has 11 come up over and over again. The proponents said it 12 this morning and the Crown said it earlier that they 13 consulted with local elected municipal 14 representatives. And our question has to be this. 15 does that fulfil the Crown's constitutional 16 obligations and does it fulfil the proponent's 17 obligations under the guidelines in the EIS? 18 Now we note we're not trying to suggest 19 in any way that it isn't important for the proponent 20 or for the Crown to consult with municipal 21 representatives because it is important. You can't 22 do something without talking to mayor and council in 23 Thompson and The Pas. It's got to happen. However, 24 those municipal representatives have no 25 jurisdiction, authority or mandate to deal with 5908 1 Metis, qua Metis. I'm going to -- qua is one of 2 those lousy legal Latin terms. It really just means 3 like or as. So deal with Metis in their capacity as 4 Metis as opposed to Metis in their capacity as 5 Canadian citizens. 6 So what we say to you is that those 7 municipal representatives have limited jurisdiction 8 that comes from their governing statute and within 9 the geographic territory of their municipality but 10 they have no mandate or authority to represent Metis 11 with respect to the exercise of Metis rights and 12 title. 13 We also say they are very inappropriate 14 bodies to consult with especially when one considers 15 the municipal representatives may not even be Metis 16 and that the exercise of most Aboriginal rights takes 17 place way outside municipal boundaries. 18 Finally we'd also like to note that mayor 19 and council in Northern Affairs communities are not 20 decision-making bodies. Their every decision is 21 subject to review by the Minister who has the 22 ultimate authority. So one could question, who is 23 the Minister consulting with when he consults with 24 mayor and council? Is he consulting with himself? 25 It's a possibility because it's certainly not 5909 1 consultation we would submit with the Metis people. 2 Now the other question that's come up is 3 that the proponent has submitted that consultation 4 with Metis can be effected within the purview of 5 public meetings or open houses. I think that's what 6 they told us today was that they had invited the 7 Metis to participate in public meetings and open 8 houses. 9 The Manitoba Metis Federation is not 10 denying that they got invitations to attend public 11 meetings and open houses. But one of the things we'd 12 like to point out is -- and remember the statistics 13 that I told you at the beginning, the Metis are a 14 minority group here and a significant minority group, 15 10 per cent of the population. And particularly when 16 you look at a place like South Indian Lake, the EIS 17 itself says that 80 to 90 per cent of the people in 18 that community are members of NCN. Ask yourself who 19 is the other 10 to 20 per cent? Who is it? 20 So what we're saying to you is the 21 statistics show Metis in the project area itself are 22 a minority. And to the extent that they will be 23 expected to be totally forthcoming with their needs 24 and perspectives as individuals in a huge group 25 atmosphere where they are completely overwhelmed by a 5910 1 majority group whose interests may be entirely 2 contrary to theirs I think is placing an unreasonable 3 expectation. And we also say that it denies their 4 special status as constitutionally protected people. 5 And we'd also like to point out that the 6 Supreme Court of Canada in the Quebec secession 7 reference talked about the constitutional protection 8 of minority rights. So I think one has to ask 9 whether a municipal representative who is elected to 10 dog catch and snow remove and fix sewers and who may 11 have interests that are entirely contrary to the 12 Metis in fact could be antagonistic can be expected 13 to represent the interests of a significant minority 14 group. 15 Now the next question then is if that's 16 wrong, which is what we're proposing, would the 17 Crown's consultation obligation be fulfilled by 18 consulting with Metis organizations? Now again, we 19 note that Indians have Chief and Council and that the 20 Crown recognizes these bodies. The Crown has never 21 created a similar political or legal body for the 22 Metis. So as a result, what we have here is that the 23 self-created ballot box Metis organizations are the 24 only entities in existence that have the structure 25 and mandate to represent Metis qua Metis. 5911 1 Now we know, governments are very 2 reluctant, very reluctant to consult with Metis 3 created organizations. They question membership 4 rules, they question their authority. They deny them 5 recognition, resources, respect. The list goes on 6 and on. Really what we say to you is that the 7 government in questioning the Manitoba Metis 8 Federation's authority and ability is questioning the 9 results of their own handy work. 10 The fact is that the Crown has neglected 11 to maintain its own Metis records. It has not 12 adequately funded these organizations to enable them 13 to develop or maintain verifiable records. And what 14 we would say to you is that in the absence of any 15 other viable entities, it is very difficult to 16 understand how the Crown or the proponent could 17 fulfil its obligations without consulting the 18 Manitoba Metis Federation. 19 And we'd like to point out to you that 20 the MMF in fact is the only Metis organization in 21 this whole country that has been recognized by the 22 courts as being legally capable of representing Metis 23 people. 24 And I'm going to point you to the 25 Manitoba Metis Federation versus Canada court case 5912 1 which went all the way to the Supreme Court of Canada 2 on a preliminary motion. But the issue was -- one of 3 the big issues was really who can represent the Metis 4 in terms of the claims that arise out of the Manitoba 5 Act, 1870. And the Court of Appeal said no and tried 6 to strike the claim. But O'Sullivan dissented and I 7 want to quote you what he said. He said, 8 "The problem confronting us is how can 9 the rights of the Metis people as a 10 people be asserted? Must they turn to 11 international bodies or to the 12 conscience of humanity to obtain 13 redress for their grievances as a 14 people or is it possible for us, at 15 the request of their representatives, 16 to recognize their people claims as 17 justiciable. 18 In my opinion, the rights of the Metis 19 people must be capable of being 20 asserted by somebody, if not by the 21 present plaintiffs, then by whom? 22 Now the Supreme Court of Canada 23 overturned the Court of Appeal decision which has the 24 effect of reinforcing O'Sullivan's finding that the 25 Manitoba Metis Federation is the appropriate legal 5913 1 entity to represent Metis with respect to their Metis 2 rights. And we would say to you this. It seems 3 logical that if the MMF can sue on behalf of the 4 Metis with respect to their Metis rights, then the 5 Crown should consult with them in respect of those 6 same rights when it contemplates activities that 7 stand to affect them. 8 I'm going to leave it to Mr. Al Benoit to 9 give you examples of the inconsistency of the 10 Manitoba Government's approach and Hydro's 11 inconsistency. 12 I want to move on very briefly to the 13 Aboriginal rights of the Metis because Ms. Leonoff I 14 believe left you with a position that we disagree 15 with strongly. She said no one knows. 16 THE CHAIRMAN: Would you go a little. 17 MS. TEILLET: I apologize. It will come 18 as no surprise to you that we disagree with what Ms. 19 Leonoff stated. She said no one knows whether Metis 20 harvesting rights exist in Manitoba. And I suggest 21 to you that that is wrong in law. 22 First of all, there is a Queen's Bench 23 decision in Manitoba called the MacPherson and 24 Christie case that confirms that Metis have Section 25 35 harvesting rights. And that case came out of The 5914 1 Pas. It didn't come out of Southern Manitoba, it 2 came out of Northern Manitoba. 3 Now the other issue is that there is 4 another Queen's Bench decision in Saskatchewan called 5 the Morin and Daigneault case. And that case 6 specifically dealt with the issue of whether scrip 7 extinguishes harvesting rights. And the decision 8 there was that no one was going to talk about the 9 effect it might have on title. But with respect to 10 harvesting rights, both the trial judge and affirmed 11 by the Queen's Bench judge said that scrip didn't 12 meet the clear and plain extinguishment test. It 13 doesn't speak about hunting rights, hunting and 14 fishing rights. So therefore, whatever effect it 15 might have had on title, which was not before the 16 courts, it had no effect on their hunting. 17 Now even in Blais, which went to the 18 Supreme Court of Canada and the court found against 19 the interpretation of the natural resources transfer 20 agreement, the trial judge found, and I'm going to 21 quote him, he said, "Hunting was as the very air they 22 breathed." 23 Now, that fact was not overturned by 24 anybody all the way up the line. And the Court, 25 actually the Supreme Court of Canada went out of its 5915 1 way to say that just because Metis weren't included 2 in the Natural Resources Transfer Agreement didn't 3 mean that they didn't have rights under Section 35 in 4 this Province. So what we say to you -- and then of 5 course Powley also affirms that there are Metis 6 people who have unextinguished harvesting rights in 7 this country. 8 So we say to you that it would be far 9 more logical and more appropriate for the province 10 and all other bodies to act as if the Metis do have 11 the harvesting rights they claim and treat them 12 appropriately and not put projects such as this at 13 risk by ignoring that. 14 Now, the Manitoba Metis Federation has 15 given you a response to your information request and 16 I've dealt quite thoroughly there with the duty to 17 consult when it's triggered and the law with respect 18 to consultation. So I'm not going to go into that in 19 great detail right now except to quote the Supreme 20 Court of Canada briefly where they say that, "There 21 is always a duty of consultation with Aboriginal 22 people." And the second part of it they say is that, 23 consultation must be in good faith and "with the 24 intention of substantially addressing the concerns of 25 the Aboriginal people." 5916 1 Now, we would say to you that's a 2 substantive component, it's not just a procedural 3 requirement. And what we also say to you is a duty 4 to consult has a long history in this country. It 5 arises out of the Crown's duty to protect Aboriginal 6 peoples, to protect their interests, to protect their 7 lands and their resources that they rely on. 8 So the idea of consultation is to prevent 9 harm before it occurs. So what we say is that duty 10 rests with all parties who are contemplating actions 11 that will have an effect on Aboriginal people's 12 resource use. Government, any government entities it 13 establishes to facilitate that activity carry that 14 duty which is what we would say usually implemented 15 through a process like this, an environmental 16 assessment process. 17 We say the proponents have a duty to 18 consult pursuant to their guidelines and the reality 19 is that it has to be substantively carried out. In 20 other words, excuses about why it didn't work won't 21 work because that's just using procedural excuses. 22 Now what we say to you is that it's not 23 possible to neatly distinguish. You cannot draw hard 24 and fast walls between they have this responsibility 25 and these other people over here have this one. The 5917 1 idea is that eventually the information has to be 2 gathered. 3 And what we say is for the Clean 4 Environment Commission, you're the oversight body and 5 you are the ones who have to assess whether you've 6 got that information. We're not suggesting it's up 7 to you to go out and do the consultation, it's up to 8 you to review what's before you and decide whether 9 you have sufficient information. If you don't have 10 the information, you have to tell the Minister that, 11 that he's missing information. 12 Now, I want to look just briefly at what 13 are the implications if there is no meaningful or 14 proper consultation. I think there is some case law 15 to guide us on this. First I want to talk about what 16 would be evidence that would show that there was no 17 genuine intention to do the consultation or to gather 18 this. And we would say that many of the things that 19 we've heard about here in this process have been 20 shown. And we'd say the evidence is this. Failing 21 to recognize that there is an Aboriginal people in a 22 project area, especially when put on repeated notice. 23 Suggesting that the Aboriginal people themselves are 24 at fault for not nagging enough for consultation. 25 Suggesting that the obligation lies with the 5918 1 government but not with the proponent or with the 2 proponent but not with the government or with either 3 the government or the proponent but not with the CEC. 4 In fact, suggesting that the obligation lies anywhere 5 but with anyone even remotely responsible for the 6 process. 7 MR. MAYER: I don't want to interrupt but 8 I'm trying to understand at this point which 9 consultation we are addressing. We're addressing the 10 consultation as set out in our Terms of Reference or 11 are we discussing Section 35? And I'd really like to 12 keep the two separate. 13 MS. TEILLET: It's been made very clear 14 by the Manitoba Government that they believe that the 15 Section 35 consultation is an entirely separate 16 process -- 17 MR. MAYER: We've heard that. 18 MS. TEILLET: -- from yours. But I've 19 heard it too. I have to say to you that my 20 understanding of the law of environmental assessment 21 and of these issues is that consultation has to be 22 carried out. And your obligation is to make 23 recommendations on the effects of the project and 24 mitigation, et cetera. 25 Now, in order to do that, you have to 5919 1 have information. What we say is the obligation is 2 on the proponent to provide you with that