NATIONAL ENERGY BOARD OFFICE NATIONAL DE L’ÉNERGIE
Hearing Order / Ordonnance d'audience EH-001-2017
Manitoba Hydro Manitoba-Minnesota Transmission Project (MMTP)
Manitoba Hydro Projet de transport d’électricité Manitoba-Minnesota
VOLUME 10
Hearing held at L’audience tenue à
Delta Hotel 350 St. Mary Avenue Winnipeg, Manitoba
June 22, 2018 Le 22 juin 2018
International Reporting Inc. Ottawa, Ontario (613) 748-6043
© Her Majesty the Queen in Right of Canada 2018 © Sa Majesté du Chef du Canada 2018 as represented by the National Energy Board représentée par l’Office national de l’énergie
This publication is the recorded verbatim transcript Cette publication est un compte rendu textuel des and, as such, is taped and transcribed in either of the délibérations et, en tant que tel, est enregistrée et official languages, depending on the languages transcrite dans l’une ou l’autre des deux langues spoken by the participant at the public hearing. officielles, compte tenu de la langue utilisée par le participant à l’audience publique.
Printed in Canada Imprimé au Canada
Transcript EH-001-2017 HEARING ORDER/ORDONNANCE D’AUDIENCE EH-001-2017
IN THE MATTER OF Manitoba Hydro Manitoba-Minnesota Transmission Project (MMTP) 21 December 2017
HEARING LOCATION/LIEU DE L’AUDIENCE
Hearing held in Winnipeg, Manitoba, Friday, June 22, 2018 Audience tenue à Winnipeg (Manitoba), vendredi, le 22 juin 2018
BOARD PANEL/COMITÉ D'AUDIENCE DE L'OFFICE
Alison Scott Chairperson/Présidente
Murray Lytle Member/Membre
Keith Chaulk Member/Membre
Transcript EH-001-2017
APPEARANCES/COMPARUTIONS (i)
Applicant/Demandeur
Manitoba Hydro - Mr. Brenden Hunter - Mr. Sacha Paul - Ms. Janet Major - Ms. Shannon Johnson
Intervenors/Intervenants
Animakee Wa Zhing #37 First Nation - Ms. Paloma Corrin
Canadian Association of Energy and Pipeline Landowner Associations (CAEPLA) - Mr. John D. Goudy - Mr. David Core - Ms. Annette Schinborn
Consumers’ Association of Canada - Manitoba Branch - Ms. Katrine Dilay - Mr. Byron Williams - Ms. Gloria Desorcy - Ms. Danielle Morrison
Manitoba Métis Federation - Mr. Jason Madden - Ms. Alexandria Winterburn
Manitoba Wildlands - Mr. Phillip Cramer
Northwest Angle #33 First Nation - Ms. Paloma Corrin
Peguis First Nation - Mr. Dennis Valdron
Roseau River Anishinabe First Nation - Ms. Madison Urschatz
Sagkeeng First Nation - Mr. Corey Shefman - Ms. Kate Kempton
Transcript EH-001-2017
APPEARANCES/COMPARUTIONS (Continued/Suite) (ii)
Intervenors/Intervenants
Southeast Stakeholders Coalition - Mr. Kevin Toyne
Southern Chiefs’ Organization Inc. - Mr. Steven Hunter - Mr. James Beddome
Wa Ni Ska Tan - Mr. Jared Wheeler
National Energy Board/Office national de l’énergie - Ms. Marian Yuzda - Ms. Carol Gagné
Transcript EH-001-2017
TABLE OF CONTENTS/TABLE DES MATIÈRES (i)
Description Paragraph No./No. de paragraphe
Opening remarks by the Chairperson 7806
Final argument presented by Mr. Valdron for Peguis First Nation 7809
Final argument presented by Mr. Shefman for Sagkeeng First Nation 7984
Final argument presented by Mr. Wheeler for Wa Ni Ska Tan 8227
Motion brought forward by the Manitoba Métis Federation 8433 - Decision of the Board - Ruling No. 18 8448
Submissions by Ms. Winterburn 8451
Transcript EH-001-2017
RULINGS/DÉCISIONS
No. Description Paragraph No./No. de paragraphe
18 Ruling of the Board on motion brought forward by Manitoba Métis Federation to provide submissions on a discreet narrow issue raised in an earlier argument that the Board was interested in. 8448 to 8450
Transcript EH-001-2017
LIST OF EXHIBITS/LISTE DES PIÈCES
No. Description Paragraph No./No. de paragraphe
Transcript EH-001-2017 Final argument Mr. Valdron --- Upon commencing at 8:31 a.m./L’audience débute à 8h31
7806. THE CHAIRPERSON: Good morning. We'll resume oral argument and I think the next up is Manitoba Métis Federation, no?
7807. MR. VALDRON: Peguis.
7808. THE CHAIRPERSON: Peguis, sorry. I have a very short memory.
--- FINAL ARGUMENT BY/ARGUMENTATION FINALE PAR MR. VALDRON:
7809. MR. VALDRON: Once again, Den Valdron, counsel for Peguis First Nation, coming to give my final oral argument.
7810. You know, I thought MMF was before me too.
7811. Thank you. You know, they tell me that the perfect is the enemy of the good. I hear that. And by and large, it's true. But there's a corollary to that that it doesn’t mean that any old stuff will do.
7812. Now, let's keep that in mind because I'll come back to that.
7813. During the oral traditional evidence, we had evidence from Peguis from elders, from Niigaan Sinclair as the historian; from Mike Sutherland, the Projects Manager and a person who lived on the line. We had evidence from the people who had been on the land and people who had travelled through it.
7814. And right at the start, we had the evidence of Chief Hudson, and his evidence was very blunt in the end. Chief Hudson said, "Peguis does not consider these hearings to be consultation." He said, "This is not consultation." He said, "Consultation is still waiting to happen."
7815. And I think that's a position you might find combative, particularly in the context of what's going on in the context of the NEB's letter of October 31st to the Minister, to the Minister's letter of March 20th, to the NEB's letter to Peguis of April the 19th. I think that for the NEB -- and I'm not going to pretend to know your minds -- but I have the impression that for the NEB, consultation has been central to this entire process, honouring or implementing or fulfilling the Crown's duty to consult.
Transcript EH-001-2017 Final argument Mr. Valdron 7816. And there is Chief Hudson and he's saying, "No, it's not consultation." No middle grounds, no compromise, just an absolute rejection of that.
7817. And the thing is, now, Peguis isn't alone in this, okay? This same gauntlet was laid down again and again through the OTE hearings. It was laid down by Sagkeeng repeatedly, in particular. And I think that the sense is that Peguis and other First Nations don’t accept this as consultation.
7818. Now, I don’t think that can be ignored. I mean, if you have a situation where one side is going, "No, this is not consultation," and the other side goes, "We don’t care about your opinion. This is consultation," well, maybe you can have a situation like that, but I wouldn't recommend it. I think that this has to be addressed and perhaps understood. Perhaps there's room for a meeting of minds, or at least an understanding of where Peguis and other First Nations are coming from on this.
7819. And this is really the subject of my oral submissions. My oral submissions are going to be about this schism, this conflict, this divide between us, this failure or breakdown of understanding and communication.
7820. Now, there are other things that I could address. There are many issues that I could address such as Hydro in certain legal opinions into evidence, such as issues brought up by the OTE hearings, such as many of the practical or technical issues. But I think that in the time that we have available, in the window that we have to communicate, this is really what needs to be talked about.
7821. The fundamental issue before us is consultation, how it's done, how it's supplied, who does it, what it is. All of these are at the heart of this process. And so this is what I want to wrestle with.
7822. And I'm not here to hector you. It may be that at some point you may feel like that, but no, I'm not here to hector. What I'm going to try and do is give a perspective, a point of view, a different way of looking at things, that may offer some chance of epiphany, some chance of insight.
7823. Now, I think that the problem with Canada's approach to consultation - - and I'm going to refer to Canada a lot because I think Canada is the Crown. I mean, the NEB is here and in a sense, NEB is Canada, but literally, the issues that I'm talking about are ones that the NEB wrestles with but it goes beyond. It goes to Canada's attitude, Canada's position, Canada's insight point of view. And I
Transcript EH-001-2017 Final argument Mr. Valdron think the problem at the core is that there's a mistaken emphasis on Supreme Court decisions. Now, that's pretty controversial coming from a lawyer, eh? You know, me up here dissing away at the Supreme Court. Don’t tell them.
7824. But all right, let's think about this. The Supreme Court has come down with a series of decisions: Haida, Mikisew, Taku River, Rio Tinto now all the way to the Clyde and Chippewa decisions back in 2017. And then there's the federal court decisions, all of these decisions on consultation. There are so many decisions in so many courts it's like a revolving door. And the gist of it all is that Canada needs to consult. And so what does Canada do? Canada goes, "Well, what do we do?"
7825. This is not something Canada has come up with. This is not something that Canada has embraced. This is something the court has come up with and said, "Well, come on, guys. Look at this. Consult."
7826. And Canada is basically in a reactive mode. And what's come out of that? Well, my impression is it's been a search for minimum standards, you know? Canada asks, "Well, what do we need to do? What's good enough?"
7827. And the Clyde River and Chippewa cases are particularly important in this context because they're both very recent, they both involve the NEB, and they both touch on the issue of, well, what's good enough?
7828. So we have Clyde River, where the Supreme Court comes out against Canada and we have the Chippewa case where the Supreme Court looks at the NEB and Canada's process and says, "Not perfect, but good enough."
7829. So what does that make Chippewa? Is that a minimum standard? And that raises the question. I mean, is the minimum standard good enough? Is doing the minimum possible sufficient to the honour of the Crown or has Chippewa been misunderstood perhaps like all the others?
7830. I suggest the point has been missed. I think the Crown has sought and is seeking a blueprint for consultation from the courts, such as the Supreme Court, and I think that the effort is misplaced. I think that the effort has been to consistently try to parse out each decision, to seek nuance in the application of tests. This is pecunious and it's detail-oriented. It's a natural, a very natural view fault of the legal perspective, the legal mindset.
Transcript EH-001-2017 Final argument Mr. Valdron 7831. I mean, this is what we do for a living, right? But I think it's wrong in this case. I think it's mistaken when we come to consultation. Through this approach, through this technical, legal, detail-oriented approach, there is a struggle to develop policy, to develop methods, to develop an approach to figure out, well, what or how to do, you know.
7832. And if you look at the cases, what’s interesting is that the Court consistently, over and over again, tries to avoid setting out a blueprint. Instead, when you read the decisions, the Court is just continually admonishing the parties to work together, to talk together. The repeated theme expressed, all the way through all of these cases, is about reconciliation.
7833. Reconciliation is not apportionate of technical legal rights and obligations. In fact, if you go back to Haida¸ and perhaps after this, I would suggest reading it again to see if I’m out to lunch. Go back to Haida. Consultation isn’t about parsing rights. The duty to consult is not triggered by rights, per se. It is triggered by the potential existence of rights, not about proven rights.
7834. Haida said, you know, we -- if we’re trapped in one mindset I think there’s a temptation to go the legal technical route and go, “Okay, well, you know, how do we deal with rights?” Well consultation is not an alternative method of finding, or determining, or assessing rights. That’s not what it was meant to be.
7835. Consultation is about reconciliation. And reconciliation -- that word that the Court says over and over again with every decision -- is about healing and developing the battered relationship between First Nations and the Crown. The Supreme Court is talking about the relationship between Indigenous peoples and the Crown. And the repeated direction that is running through the Supreme Court’s case is that this relationship is broken and must be healed through reconciliation.
7836. Now, this puts me in mind of an old joke that was once told about Jimmy Carter back in his presidency, which makes me feel really old. But apparently some of Carter’s staff were discussing, you know, policy. And they were discussing, you know, those policy analysts who saw the forest and those who saw the trees. And somebody pointed out, “Well what about Carter? What’s he? Is he a forest man or is he a tree man?” And they said, “Carter? Carter’s a leaf man.”
Transcript EH-001-2017 Final argument Mr. Valdron
7837. And in essence, I think we’re stuck with leaves. I think that the narrow interpretations of the Court’s decisions on consultation, these -- this effort to search for nuance, for detail, for a road map forward, for a guideline, that’s focusing on the leaves, you know, focusing on the trees. But it’s not seeing the forest. And the Supreme Court in these cases, I think, is talking forest.
7838. And so the failure that comes out of this is a really narrow perspective that leads to a formulated approach where the idea is that consultation can be achieved by the Crown through performing the sequence of steps, or a process mandated by the Court, that nothing more is required then checking the boxes off on a checklist, tap, tap, tap, tap.
7839. Now that’s a very tempting approach because it’s simple, because it’s user friendly. If there’s a road map, you just follow the road map. If there’s a blueprint or a guideline, you just follow that checklist, do the checklist. So tempting.
7840. Now, the Courts have said -- now, I’ll just take a step back to Clyde and Chippewa. The Courts have said that regulatory bodies such as the NEB can fulfill the duty of consultation. And that’s what Clyde and Chippewa said, and certainly was said before that.
7841. But what the Courts -- you know, here we are. But what the Courts never said is that they should. I mean, the Court opened the door. It gave permission, it allowed for it. I mean, the whole point of the Court’s process, the Court’s effort on the consultation cases, is to try and open the doors for Canada and First Nations to say, “You have options. You have a space. Not to narrow it, but to open it.”
7842. And so, you know, the Court was happy to put that option on the table. But they didn’t say it should. They didn’t give us any consideration as to how to decide that option. So we asked, “Well, who decides?” Well, in this case, there was a conversation. Canada asked itself and the NEB wrote to the Minister on October 31st. And March 20th, 2018 the Minister responded to say, “Yeah, let’s do it this way.”
7843. Okay, so there was a dialogue. There was consultation. There was consultation between Canada, by Canada, to Canada, and back to Canada.
Transcript EH-001-2017 Final argument Mr. Valdron 7844. Well, who didn’t you ask about this? Who didn’t you ask? And I’m not directing this directly to the Panel, but I’m speaking, you know, very generically in terms of Canada. Who wasn’t asked about whether the NEB was the proper vehicle for consultation in this case?
7845. Well, the people we were supposed to be consulting with, Peguis First Nation, the First Nations, the Indigenous parties. That decision got made without them. Well, they were notified, apparently, by a form letter sent out at the end of April, and how far into the process were we by that time?
7846. So you have unilateral decision from internal discussion, and the unilateral notification of that decision in the 11th hour of the process. Perfect is the enemy of the good. It’s just perfect? It’s just good.
7847. Canada, or the NEB, went through a process to decide on the list of Indigenous groups affected. And we’ve heard about Hydro, through its engagement process, going through its own process to decide who to contact. But again, who wasn’t part of that process? The Indigenous groups themselves. They get left out. They’re still left out.
7848. We hear about the project agreement that’s going to set rules for consultation, but we’re not part of those discussions. Rather than sitting down and talking about how to do it, Canada is engaging in a dialogue with itself. And the Indigenous peoples aren’t part of that dialogue. Not at this point.
7849. Maybe they should be. Maybe the whole point of communication is to have that dialogue all the way through. Maybe the point of going to consultation is, part of that should be to say, “Well, we’re in a relationship. How do you want to communicate? How do we meet in the middle in terms of, you know, developing a protocol, developing a foundation that represents both of us?” Instead of one party just going, “Okay, I’m going to make a series of decisions and you’ll fit into that.”
7850. I’d like to note, Peguis has actually gone to the trouble of developing consultation policy. It is actually right there in evidence. So far as I know, the NEB has not responded to it. I may have missed it, but so far as I know, there were no IRs seeking clarification, there was no examination or interrogation on that.
7851. This consultation policy developed by Peguis, and it is an elaborate
Transcript EH-001-2017 Final argument Mr. Valdron document, I do commend you to it, and it’s a testament to how seriously Peguis takes this process, takes these processes. It’s been provided to Canada. Is there a response to that from Canada? Not that I know of. Has it been reviewed by Canada? Considered? Is there a discussion? Did Canada convey an opinion? Did Canada offer anything on the Peguis consultation policy to the NEB? So far as I know, no.
7852. So does it get ignored? I mean, does it get considered simply precocious and special, but, you know, when the adults are talking, when the people that matter are making the decisions that matter, then that kind of things gets dismissed?
7853. We wonder. We’re worried. I mean, it’s not like the NEB is not concerned with consultation. There’s all this record. And it’s not like First Nations aren’t concerned with consultation. It’s clear that consultation for First Nations, for the Indigenous peoples has been a major issue. It’s been a major topic of discussion in the Indigenous world for well over a decade. Literally, It’s the number one subject.
7854. I mean, we -- meetings are held, conferences, it comes up at gatherings over and over, formally and informally, academics, and chiefs, and consultation offices have written papers, communities have had meetings about it, positions have been drafted. There’s been lively debate and discussion as to consultation.
7855. And what it means, and what the expectations are, what the -- what it should be about, being held in the Indigenous world. And so far as I can tell, that stays in the Indigenous world. Canada just does its own thing and does its own review and it talks to itself. And I -- it seems to be pretty much ignored.
7856. Now, that’s a paradox, you know. That’s the -- there’s the paradox of Crown consultation. There's no need to actually discuss consultation or how it's done and what's appropriate with the people you're claiming to consult with. You just go ahead and make up your own rules, do your own designations. Decide who has an interest and how those interests will be heard.
7857. Well, is that really consultation? I mean, is there evidence? Is there any evidence or belief that this is acceptable to the Indigenous community? And could this be possibly why the Supreme Court now seems to have a revolving door for these sorts of cases? Is this whole “see you in court” vibe, which comes from First Nations right across the country, maybe a clue to the fact that possibly
Transcript EH-001-2017 Final argument Mr. Valdron there's an issue here, that there's a gap, a breakdown? How does this unilateral approach get justified? No, it's simply -- it's not justified. It's simply imposed.
7858. And what's the result of this been, this effort to try and parse Supreme Court decisions, to arrive at rules and blueprints and a technical approach? What's the result of that? Well, more trips to the Supreme Court. I think we're on the wrong track.
7859. Now, I want to just take a little dodge in my argument, you know, just skip over here and talk about oral traditional evidence. And I wanted to discuss oral traditional evidence, not all of it. I mean, there was a weeks' worth and some of it was heart-rending, much was heard.
7860. We heard from chiefs and elders and from band members, and some of it was abrasive and some of it was challenging. There was a lot. The totality of evidence from Peguis itself is beyond me to summarize, and I wouldn't want to disrespect any of Peguis' witnesses by overdwelling on their evidence. The evidence is extensive, but I do want to focus on certain observations and themes.
7861. Now, it's been my experience in life that sometimes people listen but they don't hear. Now, I've been guilty of that myself. We get into our mode. We get into our focus. We get into a particular viewpoint. And people talk to us and what fits in that, you know, kind of goes through, and what doesn't fit in that falls out. And sometimes I've been in the situation where I haven't heard anything at all. Listening and hearing. There is a distinction. And it's a concern that I have. And what I don't want is the Board listening to the evidence, but not hearing it.
7862. So I'm going to ask, what was that evidence about; okay? Because what I would say, if you go back to that evidence, there is -- it's not just people talking about this or that all over the map, but there were underlying themes, underlying ideas. There was a concept at work that animated all of that traditional evidence.
7863. And what was it about? Relationships. Okay. It wasn't really about rights. I mean, yes, we heard a lot about rights, sometimes assertively, sometimes disparingly.
7864. I remember Northwest Angle talked about the sadness of -- the pointlessness of having rights that meant nothing because the resources, the rights that you were entitled to had literally dried up. The right to hunt moose if there
Transcript EH-001-2017 Final argument Mr. Valdron are no moose, the right to gather wild rice if the wild rice has been destroyed. But it came down to relationships. The emphasis goes beyond rights.
7865. I mean, this -- I suspect that you may have -- that the Board may have wanted or hoped for direct evidence about who or what was in the area, what they did, the traditional homespun folksiness about where people went and what they did and what life was like back in the day and what they're doing today, what's harvested, some of that. And that was there. But I don't think that was really the focus. And if the Board had an expectation of, you know, this kind of thing was what you were looking for, but the First Nations, the Indigenous peoples were really insistent on telling you something different, I think that's a flag. There's something to be heard.
7866. So we come back to relationships. And I would submit that everything that was talked about was framed in terms of relationships. Relationships between people and animals, relationships between people and the water, relationships between people and the land, that was very important -- between families, between peoples, between the Crown and Aboriginal peoples.
7867. The OTE evidence was about seeing this in a very fundamentally different way. And it was important enough to them at this -- that this theme, this articulation came up over and over again. And I think watching it, sitting there in the gallery and watching people talk again and again, there was something they were just desperately trying to say, to communicate. And I'm not sure that it gets through to Canada.
7868. The statement from the Board that was repeated various times in the OTE hearings was the Board is of the view that it is valuable to hear oral traditional evidence that would assist the Board in understanding how the project may impact Aboriginal communities' interest and rights. Rights. You know, rights in terms of the narrow view, of the contractual obligation of -- the specific obligation of a specific party to do a specific thing, or to have a specific thing. And that seemed to me to be a signal from the Board that we may be getting it wrong.
7869. I mean, you go back to Haida. Haida is not about determining rights. I've said it's not an alternate system for evaluating rights. Haida talks about the requirement for reconciliation, for consultation as a means of reconciliation, as a means of resolution, even in the absence of proven rights.
Transcript EH-001-2017 Final argument Mr. Valdron 7870. So we're not arbitering rights. We're not parsing rights. Let me suggest to you, try switching it out. Change the word focus in that statement from rights to relationship or reconciliation. And you may have to tinker with the statement a bit, but do that exercise later.
7871. And I would say that if you do that, the paradigm of what's going on, the paradigm of what they were saying just switches around completely. There's the concept, the starting fundamental concept becomes different. And what comes out of that evolves differently.
7872. And this is the fulcrum, because I believe that Canada sees things in terms of rights, specific quantifiable obligations to be implemented and -- and I don't mean to be mean, but really, this is just history -- implemented or avoided as cheaply and efficiently as possible. But that's not how Indigenous people see it. That's now how they ever saw it. That's not how they see it now. I suggest think about it.
7873. Out in the Indigenous communities, in the culture that came before, the bush, the prairie, the people of the lakes and rivers, of the swamps, the tribes and villages, it wasn't about rights. It was about relationships. Relationships were what kept you alive in the bush, what kept you alive through the year, not rights, not narrow contracts or specific isolated obligations. Because when those obligations ended, well, maybe you were in trouble after that, but relationships which endured beyond the contract, which endured beyond the narrow concept or rights or obligations. There was a fundamentally different way of looking at things and that way persists.
7874. The treaties were about relationships. And if you think about that and you go back and you look at the treaty discussions, the treaty formation, that just -- it just springs out. It becomes one of those elephants in the room that now that you see it you can't not see it. It was about a relationship.
7875. You listened to the Elders and you listened to how they were understood and applied, seen in the community. It's about a relationship. The treaties were not contracts. They were not deals. It was a relationship which gave rise to rights, okay, but that's a different picture. The focus is not on the rights. It is about the relationship.
7876. And, yes, the treaty gave rise to rights and because Canada has a rights-oriented perspective we talk about that a lot. And these are enshrined in
Transcript EH-001-2017 Final argument Mr. Valdron section 35. But the priority, the focus for the First Nations, for the Indigenous peoples was on the relationship.
7877. The oral traditional evidence has been about relationships, relationships to the land, to the Crown, to the lives and livelihood. And that's what it was really about. It's about this relationship being broken and needing to be healed. And that was what was to them, the most important thing to convey, much more important to them than the specifics of land use.
7878. We heard through this oral OTE evidence sadness and despair. Now I think back to the testimony of the chief from Northwest Angle, Sandy Kasprick I think, and really, it -- it's just awful, you know. She's looking at the destruction of her community. And the Elders say to her, just come. Go. Tell them what's going on. Tell them to just stop this, and she goes, “It's not helping.”
7879. And then you get anger and bitterness came from Brokenhead. I want to ask well why the anger, why this sadness? You know, why do people bring such emotion here? And I think that it comes from speaking and not being heard. Canada's not getting it. That, you know, they're talking until they're blue in the face, and they talk over and over, and we come to any forum that will hear us and we talk, and in the end, Canada doesn't hear; it just listens.
7880. But this is actually what the Supreme Court was talking about with Haida. Relationships. What they've talked about with this whole consultation thing. The Supreme Court figured it out. They managed to get it. They -- I don't know if they acquired or had an epiphany to embrace the -- an Aboriginal perspective, or if simply this seems to be the way to go, that they saw a constitutional body within Canada's framework, a constitutional peoples and said, well, there's a relationship there; that has to be addressed as a relationship.
7881. So Canada's not getting it though, because Canada's trapped in this narrow vision of rights, of narrow obligations; it's trapped in this unilateral frame of mind. And they say consultation, and now we have Canada deciding on its own what that's going to be and how it's going to be done and who it's going to be with, and all decided internally in advance. There's a plan, a policy, a checklist with nothing for the Indigenous people to do but show up on time at the designated spot chosen for them and tell them some heartwarming stories about life on the trapline. No. We don't accept that.
7882. Canada offers a vision of consultation which is not about relationships
Transcript EH-001-2017 Final argument Mr. Valdron but is simply a more formal version of what Canada always claims to do, which is to listen politely, hear nothing, and then do whatever it wants. The Supreme Court said -- that consultation is triggered by the potential existence of rights. That's just not the point of consultation. Rights are not the point. You don't have to prove the right; it just has to be potentially there.
7883. And that brings us back to the NEB process because here, you know, it's the same old. The NEB process here is clearly a flawed process. And I don't think the Panel itself would argue against that. And I actually had like a page or two of stuff on that point, but I just deleted it because -- I mean -- I think that's understood. I talked about the perfect being the enemy of the good, by which we all mean that absolute or high standards get in the way of what is achievable. That if by insisting on the perfect, we abandon the good, we come away with nothing.
7884. Well, I think we'll admit the NEB process is not perfect, it's far from perfect. So not being perfect, here's the real question -- is it good? In Chippewa, the Supreme Court looked at the NEB and the efforts that it made, and it said well, not perfect, but there's good faith there, so we'll call that good enough.
7885. In this one, on the subject of consultation -- and I'm only speaking on the subject of consultation and your actions as a regulatory body, you do your stuff, I'm fine with that. On the subject of consultation, not even close. As I pointed out, Clyde River and Chippewa are permissive, not mandatory. They say they can -- the Crown can delegate to a regulatory body, not that it must. But the Crown's chosen to do just that.
7886. The question that never got answered, that never got discussed, that was never the subject of consultation, either internally or outside was should. The question of how. And the question of how was a big one, because I suggest the NEB was left without guidance.
7887. On March 6th, Peguis wrote to the NEB regarding seeking clarity with respect to the NEB's position on consultation, and that response came back on April the 19th, and parts were disturbing to us. The NEB wrote as the next step -- with respect to these letters, on March 20th, the Minister of Natural Resources wrote with respect to its intent, wrongfully in our view, to rely on the NEB Act. As the next step, the Minister wrote:
"My Department will inform potentially impacted Indigenous
Transcript EH-001-2017 Final argument Mr. Valdron peoples of the government's intention to rely on the certificate process." (As read)
7888. Well, I'm harping on this. I keep dwelling on this. We weren't asked about that; we were just told. That notification was not issued until April the 29th, which is well into the process. So what's the meaning of a consultation process where the formal notification, the honourable notification comes after or during that process? The Minister writes in his same March 20th letter:
"I've directed my staff to work closely with the NEB and other implicated federal authorities to finalize the project agreement pursuant to Cabinet directive to improve the performance of the regulatory systems, including to ensure clear roles for consultation with Indigenous peoples." (As read)
7889. Well, that's Canada talking to itself again.
7890. As we pointed out, this project agreement is a unilateral exercise, and presumably, First Nations aren't invited to participate. I would have assumed if the goal was reconciliation, then our input into developing clear roles and rules would have been desirable. Peguis's position is that for consultation to be genuine both sides have to be in it, it must be a two-way process, it has to be collaborative, not dictated. And for one side to decide to what consultation is and how it's to be implemented is wrong.
7891. I have the sense that the Crown's vision of roles for consultation is to come from a project agreement. That seems to be what I get from the Minister. But that's not available, not to us, and certainly not to the NEB at this point. So what are we doing? What are we supposed to do? How are we supposed to know what questions to answer, what tests to meet? What evidence is there to be called for us? How do we make our case to you when we've been blindfolded? Because this isn't even there.
7892. And for that matter, what about you? How does the NEB know what to do? How is the NEB to make decisions, interpretations, rulings beyond to address this consultation mandate that they -- that you've been saddled with? You're blindfolded too. Or are you blindfolded?
7893. I'm assuming that the NEB has no ongoing input into these rules, but I don't know. I mean, the Minister said to his staff:
Transcript EH-001-2017 Final argument Mr. Valdron
"... work closely with the NEB and other implicated federal authorities to finalize the project agreement..." (As read)
7894. So maybe you're not as blindfolded as we are.
7895. One of the reasons I'm making this submission, and the reason I'm just hammering it so repetitively and so brutally is that I have some hope that at some point the NEB may have some input into the federal discussion of consultation, and perhaps some of what we're saying may make their way into that process. But at this point, right now, if there are rules, the rules by which we participate, well we don't know what they are.
7896. So much for dialogue. How is that genuine consultation? How -- how is that making any standard of fair or fairness? I mean, if the perfect is the enemy of the good, fine, but how is this good?
7897. At best, we can say the NEB in this process is putting the cart before the horse alleging that undertaking consultation in advance of any clear direction or guideline as to what that should be. And that puts you in an awkward position and it puts us in a disastrous position because we're handicapped, not once, but at every single point along this process.
7898. I want to address the April 19th letter. It says:
"The Board evaluates the sufficiency of the Applicant's consultation process along with any other evidence of consultation the Board has on its record." (As read)
7899. Well, that's tough for us because we don't know what your expectations are; we don't know what standards you're expecting us to meet, what you're calling from us. We're blindfolded in this effort.
7900. I think the Board's making two very fundamental mistakes as well, because if we go back to this the Board evaluates the sufficiency of the Applicant's consultation process. The Applicant's consultation process? The Applicant, that's Hydro.
7901. This seems to suggest the Board sees consultation being carried out by the Applicant, and there is clear evidence on the record. Not just case law, but
Transcript EH-001-2017 Final argument Mr. Valdron evidence. Hydro itself said, no, we're not doing consultation, we're doing engagement. So how are you evaluating something that Hydro simply is unable to do by case law and unable to do and unwilling to do by their own testimony? They're not doing consultation.
7902. My impression is that the Board has had a misstep. I think the Board may be seeing itself as a tribunal to assess the adequacy of consultation rather than the party that is actually undertaking consultation. And I worry about that because that might be a catastrophic level of misunderstanding of your assumed role. And I'm not saying that you're doing this, but I'm worried about it. And I would suggest that you turn your minds to it, focus on that issue.
7903. The applicant is incapable to consultation. They care in engagement. They're not the consulting body. That's the Crown. That's you. The applicant is not even a body that the Crown can delegate or designate for consultation.
7904. So there's a fundamental misstep here and it's disturbing. But there does seem to be repeated references to this. Consider for instance IR number 5 from the NEB where the question is asking about Hydro's consultation. Slip of the tongue or slip of the typewriter or possibly evidence of an underlying misconception.
7905. Consider the IR that was issued not so long ago -- I believe on June 1st -- to the Indigenous intervenors seeking comment on mitigation by Hydro. I suggest that concept, the very concept is flawed, as it seems to suggest, once again, the Board is viewing its consultation role as simply monitoring and regulating the adequacy of Hydro's consultation, Hydro's consultation which isn't consultation but engagement or mitigation.
7906. This is reinforcing my concern, and specifically with respect to that IR. I do have some other concerns. There were barely more than seven days to comply with this initially allowed. It was issued on the cusp of the OTE hearings. It was last minute, several, several months into the process. And I want to say, on this kind of thing, funding gets applied for, funding gets applied for, a plan is created, there's a budget. All of that is set out early in the process, so money is not just sort of -- we don’t just get a pot and just spend it on whatever. It's allocated. There's a plan for it.
7907. And then something like this comes along. It's a unfunded obligation so you have to pull money from someplace else and take it. You have to pull
Transcript EH-001-2017 Final argument Mr. Valdron people from someplace else. You have to pull time. And where does this come from, because there's no money? Does it come out of the existing allocation, in which case the blueprint, the map, falls out of whack or out of pocket contribution? It's not like we have a contingency fund in these plans.
7908. That's not good. It's really difficult practice. And I understand the Board had its own issues and complaints and constraints, and I have the sense that like all the rest of us, you're just flying by the seat of your pants and you're just trying to figure out what we're doing as we go along. And I commend you for that effort. But at the same time, it's troublesome.
7909. Now, there's the question of resourcing, and that, I will come back to that.
7910. The NEB in it's letter of April 19th, 2018 says:
"As further described below, the Board cannot assess whether adequate consultation has occurred until the hearing record is complete."
7911. In a sense, that's fair.
7912. And later, on the second page, the Board restates this position:
"After the hearing record is complete, the Board will consider all the evidence and arguments before […] to make its decision."
7913. And:
"As part of its decision on the project, the Board will assess the completeness of its process to ensure all potentially affected Aboriginal groups were identified, notified, and had a fair opportunity to make their concerns known [before] the Board."
7914. And I think there is principles and ideals there that are laudable. It's nice, it's very nice, but there are two problems. Now, first, the Board is saying that it will decide what consultation is and whether it's adequate at the end of the process, which raises the fear and concern among my clients now, this is that the Board has no clear idea of what its doing, that there are no standards, no
Transcript EH-001-2017 Final argument Mr. Valdron thresholds, no baselines, no ideas going in. It's just going to hear the evidence and sort it out after. I hope that's not the case.
7915. But on the second point, I have no hope at all because what the Board is saying is that Indigenous parties are given no guidelines, no standards, no thresholds, no baselines, no ideas, no notice or belated notice. We have no idea what tests to meet, what criteria are before us. There is no guidance.
7916. So what do we do? Well, we make it up ourselves and hope for the best. We wear the blindfold and try to cross the street in busy traffic -- and I don’t recommend that in real life, by the way -- or we just try and come up with anything and everything. We just throw it all in and hope that something hits the target, which usually calls for a lot more resources, an almost infinite amount of resources, more than we have and more than we're able to obtain.
7917. Neither of these is a good approach. Both are handicapped and wasteful and ultimately, doomed.
7918. Now, I'm talking about resources, the challenge of resources. That's just an awkward fact of life for us and it has to be raised. Resources are finite and fixed. The NEB provides funding for participation. Yes, this is appreciated, but the challenge before us becomes open-ended and resources simply aren't adequate for an open-ended challenge, and especially for intervenor roles.
7919. You know, there's no funding specifically identified in the contracts for consultation activity, just participation. And without standards, we can't assess whether our resources are adequate or sufficient. We can't assess whether the resources are being deployed efficiently or adequately or proportionately.
7920. And I know I'm just kind of like, whacking that again, but that creates a problem for us because you know -- and it's further compounded by directives or rulings which appeared to emerge ad hoc that created these additional obligations without additional resources. That undercuts the ability to make use of the resources.
7921. I submit to you -- and once again, to be positive, I take no issue with a regulatory role, the role set out in statute, the role of your body as a regulator. But I submit that the consultation process that the NEB has been assigned, saddled with, is deeply flawed from start to finish.
Transcript EH-001-2017 Final argument Mr. Valdron 7922. And to repeat, how is it consultation when the very delegation to the NEB is unilateral, when the question of appropriateness is never asked? How is it consultation when the Crown abrogates to itself the sole authority to determine the rules and the process? And how is it consultation when those rules and process are not established or shared, when that notice is erratic or belated or absent?
7923. How is it consultation when there's no opportunity to participate in the development of those rules, when we're shut out of that discussion, the project management or the project agreement, when even that discussion is hidden from us and we're all left blind? How is it consultation when it appears to us from the NEB's own writings that they aren't sure what consultation is or how to go about it or how to determine it, when the resources are arbitrary, when timelines are arbitrary?
7924. The perfect is the enemy of the good. Yes, we understand that. We acknowledge that. No one says this process is perfect. But it's not good either. In this case, the perfect is the enemy of the Hindenburg, the process is fundamentally just failing and failing in a dramatic fashion.
7925. And yet, here we are. I'm coming to the end, I promise you. You can't ---
7926. THE CHAIRPERSON: Take your time.
7927. MR. VALDRON: I don't want to make you suffer more than I have to.
7928. You can't take participation as endorsement, but here we are. So yeah, many First Nations, many Indigenous parties have sought intervenor status, and yeah, they’ve applied for funding and they received funding. They’ve submitted IRs, they’ve brought OTE evidence, filed other evidence, they’ve cross-examined, they’ve made or are making oral or written submissions. So we're right here. We've come to the table. But what other choice do we have?
7929. I keep coming back to the testimony of the Chief Kim Sandy- Kasprick, Northwest Angle 33, which is poignant and heart wrenching. Half her infrastructure is going to be under water and it's presented to her as fiat. She's been given documents to sign. What choice does she have in all of this? What choice does she have in terms of participating except to speak at every
Transcript EH-001-2017 Final argument Mr. Valdron opportunity that she can find to any party in any forum, to take any chance to talk because her only option is to keep talking. Sooner or later maybe somebody might not just listen, but hear.
7930. For the Indigenous people, the perception of the process is flawed and illegitimate. In their eyes, what they see is the offer of addition of consultation, a version of consultation so unilateral, so attenuated, so distorted, so ultimately futile that, you know, even regular citizens, the person on the street outside the hotel, wouldn’t recognize it as consultation, much less First Nations.
7931. This is the words of Chief Hudson, “We don’t recognize this as consultation. We will now acknowledge.” That’s the position of Peguis.
7932. So why are we even here? What are we doing?
7933. Well, because we take every opportunity to speak in the hopes that sooner or later we’ll be heard. Because Peguis First Nation feels it has a duty to inform the NEB, to inform Manitoba Hydro, to talk, to share. Refusing to participate isn’t an option for us. I mean, if every First Nation simply boycotted these processes, well, Canada would just go on and do what they’re going to do anyway.
7934. And that’s in the Supreme Court. The Supreme Court says, “No. First Nations can’t simply refuse.”
7935. So it’s a Catch-22 for us. By participating, do we legitimize what we consider to be an illegitimate process? We’re not sure. Maybe at some point, Indigenous people will see no other option but to boycott. We’re not there yet.
7936. Or -- and by the way, you have no idea how desperately I wanted to quote Hamlet on this. I really wanted to. But I had to pull back that impulse. But if you’re curious, you can probably think of the thing.
7937. MEMBER CHAULK: You should.
7938. MR. VALDRON: Slings and arrows taken up. You know, sometimes you’ve got to edit yourself.
7939. Or, by participating, can we advocate for, can we demand real consultation. Not the false consultation we have here. We challenge this
Transcript EH-001-2017 Final argument Mr. Valdron falseness in the hope that by doing so, eventually we can find our way to real consultation, to achieve real consultation to heal this broken, bleeding relationship, wound at every turn, to find the relationship with Canada. To find reconciliation.
7940. That’s why we’re here. We’re not -- it’s not here, but we’re seeking it. Like Diogenes with his lamp.
7941. So we’re here because we’re not giving up on you. We’re not giving up on Canada. Because we believe it’s possible for Canada to hear, rather than simply listen, and that we can have a relationship, rather than what we have been experiencing, which is a moderately and crabbed effort at accounting of rights.
7942. Now, let me go off on another tangent inspired by the Chief. History is a funny thing. And through the lens of history, when we no longer have personal or immediate interests, we see right and wrong much more clearly. Hindsight is a terrible thing because it shows us what we’ve really done to others and to ourselves.
7943. We can look back to 1907 and the taking of St. Peter’s Reserve. And the controversy that led to it, you know, this was the destruction of a progressive community, an agricultural community, the relocation of farmers to muskeg and swamp. It was the Manitoba Trail of Tears.
7944. And we can look back now and we can say, “Woah. Wow. This is wrong. That was a terrible thing. And I’m glad that, you know, a century later we entered into a process to right that wrong.” Well, okay. Yeah, nice.
7945. But if you go back to 1907, there were four daily newspapers. There was a lot of controversy. There was magazines. There were publications. There were letters. It was discussed at length. And a lot of people back then were pointing out that it was wrong then. This wasn’t something entered into blindly. There were people saying, “There is right and wrong, and this is wrong.”
7946. That criticism was politely listened to back then and it was not heard back then. Then powers went about their business and they did what they wanted.
7947. And back then, what was done was not piracy, okay. It was dressed up in the mantle of fairness and consideration. Hearings were held. Wisemen came down from Ottawa cloaked in traditional robes, prepared to impart the wisdom of
Transcript EH-001-2017 Final argument Mr. Valdron Solomon to come up with a solution that was fair to both sides. The Indians were heard from. All sides were listened to.
7948. And in the end, it was done anyways. Rights and lands of the Peguis people were stripped away in the interest of a fair solution, dividing the baby being meant basically casting us into the bush. And we were sent on our Trail of Tears to die or survive as best we could.
7949. And because the other side was more powerful, more interest, more money, because it was a higher priority. It was illegal. It was immoral. And that was apparent from the start. And it took 100 years to do something about it.
7950. And honestly, at Peguis they ask me, “Is there a difference between the process then and now?” And that’s a question we all have to ask ourselves. After 100 years, is our only accomplishment that we’re just becoming a little bit more polite about it? A little bit more formal?
7951. I mean, sure, now there’s intervenor status and there’s funding. There’s OTE hearings and there’s the efforts to apply the SCC. But drill down deep, I mean, is it basically the same? Have we learned anything? Is this just Canada doing what it wants, talking to itself and doing the absolute minimum as it goes on about its business?
7952. I’m saddened to say that many in Peguis don’t think that Canada’s attitude has changed. In 100 years, maybe we haven’t come as far as we need to.
7953. And so we participate in this process, and we recognize the limitations of this process without ever agreeing with them. We engage, but we don’t accept this as consultation. We’re still waiting for that genuine consultation.
7954. And we’re here before you because we want consultation. We want to consult. We want a genuine dialogue with Canada.
7955. And to consult the parties, both parties must listen and also hear. And we hope that you hear this. And we are committed both to listening and to hearing. But it’s two ways.
7956. Canada has to abandon its old thinking, it’s old habits. The habits ingrained for a century. This narrow lawyer’s view. Sorry guys. This narrow, precuneus lawyer’s view that basically parses rights and obligations and is
Transcript EH-001-2017 Final argument Mr. Valdron consumed with nuance. That’s not the way to go. In the end it’s about relationships. It’s about healing this relationship.
7957. And that’s larger than this particular process. Larger than this hearing. That’s what Peguis wants you to take back to Ottawa. Because if we don’t then nothing’s going to change. Nothing’s going to get better. And what we’re going to do is keep on going around and around in a merry-go-round. And there’s going to be a revolving door to the Supreme Court and the Federal Courts, and new claims piling up on top of old ones, and poverty, neglect, and national shame and apology 100 years later.
7958. And there’s a better way. Now, a way that involves just sitting down and talking. Not talking with ourselves and deciding what to do, but actually engaging.
7959. I want to return to Peguis now -- I’m just about done -- and another aspect of history. And I want to thank you for sitting here so patiently as I harangue you. That takes forbearance. And I do so appreciate it.
7960. We can look back to my words, and to Chief Hudson’s very, very strong words and be taken aback and go, “Whoa. These guys are breathing fire at us.” But take another look. Take a look at Peguis. Because Peguis has been engaging in this process here since 2013. You’ve got to look at IR 15 or IR 5. You’ve got to look at the CEC reports and records. And it’s been engaging fully. There’s been no refusal to communicate with Hydro. There’s been a lot of engagement. There’s engagement up and down.
7961. There’s been extensive research. I mean, you know, we have that evidence of 18,000 data points. You know, we have these beautiful maps. We have, you know, coloured in all the dots.
7962. Peguis established the Consultation and Special Projects Office, you know. And it spent years developing its infrastructure and staff, and in the interim developing internal resources and a commitment to participating in these processes. Peguis, you know, is proud to say it’s participated in several major project reviews, including Keeyask and Bipole.
7963. That’s impressive. And it’s committed. No other First Nation in Manitoba has achieved this level of commitment, this level of engagement. And I’m not crapping on these other First Nations. Most of them are much more
Transcript EH-001-2017 Final argument Mr. Valdron vulnerable with smaller populations, fewer resources, they’re constrained at every turn, under funded, the leadership is overstretched. I mean, I talked about the thin skull rule in my cross-examination, and that's basically about it.
7964. I mean, the letter goes out from Manitoba Hydro and nobody responds to it in the First Nation and is that because they don't care? No, it's because, you know, there's four people on staff and the Chief has a hundred other things to do and nobody has the skills and the insight or the ability to deal with this. And they know it's important but, you know what, if you got a hundred important things on the desk and you can only do 10 important things in that day, a lot gets left off. That's the nature of the thing.
7965. So, and just as an aside, I want to throw that at you, the thin skull rule. What about that? I mean, how do we consult with vulnerable First Nations where they are literally handicapped? They are literally constrained from being able to engage. And so I think, whoa, wouldn't it be great if every First Nation was able to engage at Peguis' level? Imagine the possibilities for dialogue, the possibilities for communication, the possibilities for information to be generated, for things to happen.
7966. And we're not there. But maybe one of the questions we need to address ourselves is, well, how do we get there? How do we find a way to open those doors, to raise the bar, to bring all the First Nations or most of them into that level, or at least a decent level where you know what they're saying?
7967. But getting back to my point, you know, I'm rambling on about 18,000 data points and stuff and, you know, all the processes we've participated in. And what does all that mean? It means credibility.
7968. Peguis, we're not wild radicals. We're not throwing bombs. We're not playing brinksmanship. You know, if you look at NEB IR 5, there's 15 pages of Peguis engagement with Manitoba Hydro, literally hundreds and hundreds of entries. We're right in there. We're serious about this; okay? And after all that engagement, after that commitment to the CEC, commitment to you, to Hydro, after all that engagement, Chief Hudson comes and he looks you in the eye and he says, "No, this is not consultation. That has yet to happen."
7969. That's not a radical statement from a radical man. That's a statement from a judicious man, a judicious party, which has participated and which has played the game, which has acted fairly, which has brought it to you. And I think
Transcript EH-001-2017 Final argument Mr. Valdron that needs to be taken seriously when the Chief says that. And I think that takes a little bit of effort because, you know, there is that divide between what the Chief is saying and what you think -- and what you're doing or you think you're doing.
7970. There's a paradox. I like paradoxes. I refer to them several times, sorry. There's a paradox. The Manitoba First Nation, which has the most sophisticated engagement, the one which has engaged most strongly, most consistently, most proactively, the one which has generated immense amounts of data and testimony, which has reached out repeatedly, that's the one that says this process doesn't meet the requirements or standards of consultation. Well, that's a puzzler.
7971. We say that the perfect is the enemy of the good. And nobody here, nobody in Peguis expects perfection. We all understand the limitations of the world. But this isn't good. And the position of Peguis is that this is not consultation.
7972. But I'll leave you with a hopeful note. Consultation ---
7973. THE CHAIRPERSON: Is it free?
7974. MR. VALDRON: I'm just -- literally I'm -- this is the -- I'm just finished. This is the hopeful note -- you want a hopeful note -- is that there is that commitment to consultation by us. There is that possibility for Canada. And all it really needs is perhaps an adjustment in thinking, a change of mind, the process of beginning to look at things in a new way.
7975. So that's my submission. And I do appreciate the constraints and the problems you've operated under, the difficulties that you face and the position that you've been put in. And I wish that I could reach out to you and help you and offer you some advice or guidance, but all I can really offer is the position of Peguis. So thank you very much.
7976. THE CHAIRPERSON: Thank you, Mr. Valdron.
7977. Mr. Valdron, you got away. I just wanted to indicate to you that your comments, at least from my point of view, were obviously well thought out, heartfelt and thoughtful and thought provoking. And I did want to assure you that the Panel considers information only that is on our record. The agreement is not
Transcript EH-001-2017 Final argument Mr. Shefman on the record and we don't communicate with anyone except through the record. Thank you.
7978. MR. VALDRON: Thank you very much.
7979. THE CHAIRPERSON: Sagkeeng?
7980. Good morning, Mr. Shefman.
7981. MR. SHEFMAN: Good morning, Madam Chair. I do have paper copies of the presentation for the Panel and for legal counsel for the NEB.
7982. THE CHAIRPERSON: Do you need a minute?
7983. MR. SHEFMAN: No, it looks like it works.
--- FINAL ARGUMENT BY/ARGUMENTATION FINALE PAR MR. SHEFMAN:
7984. MR. SHEFMAN: Madam Chair, Panel Members, thank you for having us here for hearing our submissions, our cross-examination and listening to the evidence of Chief Henderson during the oral traditional evidence period.
7985. I'm going to be talking to you this morning mainly about the duty to consult and accommodate, perhaps unsurprisingly.
7986. First Nations, including Sagkeeng, feel squeezed between a rock and a hard place when it comes to processes designed and controlled by the Crown, processes like environmental assessments and this NEB proceeding.
7987. In these proceedings, we're faced with two sets of often conflicting world views, two sets of conflicting laws and peoples, Crown and Indigenous. Yet the process is controlled entirely by one side, with its laws being the ones seen as binding. At the same time, that same side, the Crown, also has 100 per cent of the obligation to atone for and remediate decades of oppression and abuse that it caused to the other. This is very much like the fox guarding the chicken coop.
7988. As a result, these sorts of processes and regimes can, and often do, perpetuate the very oppression they are ostensibly trying to fight and overcome. In these processes the voices of First Nations are often distorted, appropriated,
Transcript EH-001-2017 Final argument Mr. Shefman ignored and minimized.
7989. As my colleague just finished telling you, nevertheless, First Nations feel compelled to participate in these processes because otherwise they get no voice at all. With the duty to consult and accommodate formally delegated by the federal Crown to the NEB, this is, at least according to the Crown, quite literally Sagkeeng's only chance to be meaningfully accommodated for the impacts on its rights.
7990. It is striking that while the Applicant and non-Indigenous intervenors are able to focus in this hearing strictly on the CEAA 2012 factors, the environmental and related impacts, the Indigenous intervenors must address both the CEAA 2012 factors and the impacts on their Aboriginal and treaty rights. They must do twice the work of every other participant in this process. And in the evidence of the Applicant, this crucial aspect of the process is treated as an afterthought.
7991. If this process is going to be meaningful, the highest law in Canada and the most significant foundation to the formation and existence of Canada as a country, its constitution and relationship with First Nations, have to be followed and honoured. The Board must take active steps to ensure that Canada's constitutional obligations are met, and the Aboriginal and treaty rights of First Nations are respected.
7992. Through a strong -- through strong conditions placed on any approval, the Board must compel Hydro to do so as well. This is not only the Board's moral obligation, it is its legal and constitutional obligation. These conditions must result in nothing less than the fulfillment of the duty to consult and accommodate First Nations, including Sagkeeng. Why must it do so? Because Canada has directed that the NEB must.
7993. And as you can see on the screen, in the first slide, the Crown has set out how it's delegated its duty. The duty would be met if the NEB orders conditions which fully accommodate Sagkeeng and other First Nations by substantially addressing their concerns, as suggested, for example, in Exhibit A92182, Sagkeeng's draft conditions. This is the requirement of Canadian law; the Board is bound by it.
7994. That law says, the duty to consult and accommodate:
Transcript EH-001-2017 Final argument Mr. Shefman "...must always be carried out with the intent of substantially addressing the concerns of the affected aboriginal parties." [Delgamuukw v British Columbia, [1997] 3 SCR 1010 at para 168; Haida Nation v British Columbia (Minister of Forests), 2004 SCC 73 at para 40]
7995. Throughout my presentation, I'm going to be bringing up sections of the slides which include citations to what I'm referring to. I'm not going to read out the specific cases, I think in the interest of time, and so it would be I think easiest to follow if we follow along that way.
7996. Substantially addressing the concerns of the affected Aboriginal parties means that all good faith efforts must be made to understand the impacts and to fully address any concerns arising out of such impacts. Nothing short of this will do. The requirement is that -- is that the concerns of Aboriginal peoples be substantially addressed, and not just sort of addressed. This is consistent with the Supreme Court's requirement that:
"Section 35... be given a generous, liberal and purposive interpretation." [R v Sparrow, [1990] 3 SCR 1010 at 1106]
7997. Concerns are addressed through accommodation measures. Because accommodation measures must substantially address concerns, it follows that accommodation must be holistic. Accommodation must include prevention of impacts that can be prevented, minimization of those impacts that can't be fully prevented, and compensation and other benefits sufficient to offset the impacts which remain.
7998. It isn't enough to simply mitigate. Mitigate means to minimize. Unless all impacts are completely removed, which of course never happens, impacts will be left behind, and First Nations are the ones who will be left worse off as a result. This isn't nearly good enough to meet the duty.
7999. The conditions that the NEB imposes here have to ensure full accommodation measures. Nothing less will meet your constitutional obligations. Nothing less will be legal.
8000. There are three types of conditions that Sagkeeng needs in order to substantially address its concerns, in addition to those that reflect best environmental protection and safety measures generally, which I'm sure the Board
Transcript EH-001-2017 Final argument Mr. Shefman will order in any event.
8001. The first type of conditions are conditions which understand the impacts. The process of getting key information to understand the impacts on Sagkeeng's rights is incomplete, and until those impacts are fully understood they can't be accommodated for. By Manitoba Hydro's own admission, it has not assessed the impacts of the project on Aboriginal and treaty rights, and so that falls to the Board to do. These conditions will include a methodologically sound Sagkeeng traditional land use and occupancy study, as well as ongoing best practices First Nation monitoring and meaningful inputs into the environmental management of the project.
8002. The second type of conditions are conditions which prevent and mitigate impacts of the project on Sagkeeng's rights. To this end, the Board ought to apply a precautionary principle because there is already a high cumulative load on Sagkeeng as well as its rights and lands as well as key important species such as moose. This type of condition also involves involving First Nations in environmental management in a serious way, including herbicide use. This must be done in a way which respects the varied interests of different First Nations and Aboriginal peoples.
8003. The third type of condition are conditions which compensate Sagkeeng for impacts that can't be prevented or mitigated through offset lands, through first economic opportunities from the project and through monetary compensation, including, potentially, revenue sharing.
8004. Underpinning much of what you've heard here and seen in the written evidence is that Canada has its own duty to consult and accommodate. The Board need not decide whether the province has met its duty as a matter of law. However, the Board can take into account what Manitoba and Hydro have done as a matter of fact in order, and in order to facilitate making any conditions that the Board orders as aligned with what the province and proponent already do to make them as easy to carry out in practice as possible.
8005. But that's not a limiting factor. If meeting Canada's duty, for example, requires that the Board implement or order Conditions A through Z, then that -- those are the conditions the Board must implement. It would be irrelevant if Manitoba and Manitoba Hydro might also be intending to implement Conditions A through H on their own provincial approval. The duties are distinct, and overlap is frankly of no consequence.
Transcript EH-001-2017 Final argument Mr. Shefman
8006. That is, the Board can impose conditions that Hydro or Manitoba were going to meet anyway or say that -- or that they say they were going to meet in part. The law on paramountcy allows this and the Act specifically, the NEB Act specifically addressing overlap by reinforcing the paramountcy of the federal approval to the extent of any conflict.
8007. As the Act says:
"The 'terms and conditions of a… certificate… are, for the purpose[s] of applying the laws of a province...paramount to those [provincial] laws'.” [National Energy Board Act, RSC 1985, c N-7, s 58.22]
8008. Each Crown has its own duty. Canada's duty, of course, is triggered by its conduct. In this case, the decision whether or not to issue the certificate is a trigger.
8009. And the Board necessarily has every power it needs to fulfill its duty, contrary to what Manitoba Hydro would have you believe. The NEB Act could hardly give the Board a broader authority to set conditions than it already has. The Act gives the Board the authority to put any condition "...necessary or desirable in the public interest.” [NEB Act, s 58.35(2)] on the certificate.
8010. In addition to following -- to allowing a broad range of conditions, this section also doesn't limit those conditions to things that the province hasn't already done or may not do in the future. Since Canada has made it clear that this certificate and its conditions will have to fulfill 100 percent of Canada's duty, those conditions must be sufficient to fulfill 100 percent of this very broad duty. Conditions to do this must, of course, be very broad and complete. There is no other mechanism available to Canada in this process to fulfill the duty other than conditions on the certificate.
8011. The buck stops with the Board. In this case, having been delegated the duty to consult and accommodate and having final decision-making authority, the Board in its decision must be confident that when making that decision its constitutional obligations have been discharged. And the NEB necessarily has all of the authority and jurisdiction which it requires to fully accommodate First Nations. That jurisdiction comes from a few places.
Transcript EH-001-2017 Final argument Mr. Shefman 8012. First, as mentioned, section 58.35(2) of the Act; second, we know that in order for the Board to exercise its statutory authority under section 58.16 to consider whether to issue a certificate. It must also determine, as part of that decision, whether the duty has been met. This is true even though the Act doesn't mention the duty. The words don't appear in it.
8013. As we know, the duty exists upstream of the statute. We cite Wahgoshig and West Moberly for that proposition. [Wahgoshig First Nation v Her Majesty the Queen in Right of Ontario et al, 2011 ONSC 7708 at para 41] [West Moberly First Nations v British Columbia (Chief Inspector of Mines), 2011 BCCA 247 at para 106]
8014. To be clear, discharging the duty to consult and accommodate, and determining whether the duty has been discharged is, in this case, a mandatory step in the Board's exercise of its section 58.16 authority. The NEB's jurisdiction and power when it comes to imposing conditions to discharge the duty is very broad.
8015. The Interpretation Act, section 31(2) makes it clear that the NEB is deemed to have all of the authority necessary to do its job. I quote:
"Where power is given to a person, officer or functionary to do or enforce the doing of any act or thing, all such powers as are necessary to enable the person, officer or functionary to do or enforce the doing of [that] act or thing are deemed to be also given." [Interpretation Act, RSC 1985, c I-21, s31(2)]
8016. The Federal Court in Gitxaala applied exactly this principle.
"Thus, we are satisfied that under this legislative scheme the Governor in Council, when considering a project under the National Energy Board Act, must consider whether Canada has fulfilled its duty to consult. Further, in order to accommodate Aboriginal concerns as part of its duty to consult, the Governor in Council must necessarily have the power to impose conditions on any certificate it directs the National Energy Board to issue." [Gitxaala Nation v Canada [2016] 4 FCR 418, para 168]
8017. In Gitxaala, of course, the Board was operating under the authority of
Transcript EH-001-2017 Final argument Mr. Shefman section 52 of the NEB Act, under which the decision -- decisions made under that section are made by the Governor in Council, not the NEB, which is why the Court's decision in that case was about the Governor in Council's powers.
8018. However, where the same Act gives the exact same power to issue a certificate to a different decision maker, in this case the Panel, that decision maker must have the same power to impose conditions on any certificate which it issues so as to accommodate First Nations.
8019. Manitoba Hydro's legal arguments, which as was already mentioned it improperly made in its reply evidence and which it will likely make again in closing, are incorrect. But moreover, they are a dangerous attempt to narrow the NEB's power and jurisdiction. The combination of the Supreme Court's decisions in Chippewas and Clyde River, plus the Minister's delegation in this case of the duty to the NEB, means that the ball is squarely in the NEB's court.
8020. Hydro's arguments would have you deflate that ball, take all the air out of it until it doesn't bounce, until you can't score a -- you can't make a basket. That would be wrong. It would be contrary to the NEB's constitutional obligations. It would be contrary to the Board's legal obligations. And it would be, at its core, a fundamental miscarriage of justice.
8021. The bulk of my submissions will be divided into two parts. First, I'm going to discuss the duty itself, what its purpose is and why and how the NEB should meet it. And second, I'll discuss in greater detail the three types of conditions required to meet the duty.
8022. Martin Luther King said, "Law and order exist for the purpose of establishing justice. And when they fail in this purpose, they become dangerously structured dams that block the flow of social progress." I thought that was fairly apt in this hearing.
8023. Justice is exactly what section 35 of Canada's Constitution is to establish and promote. The social progress that section 35 is designed to achieve is righting the wrongs of colonialism and systemic subjugation experienced by First Nations at the hands of the Crown and what the Crown governs, like the NEB and Manitoba Hydro.
8024. Canada was founded largely on what the Supreme Court and many commissions and inquiries have found to be a long history of gross injustice to the
Transcript EH-001-2017 Final argument Mr. Shefman First Peoples of this land. Many injustices continue to occur today, compounding the continuing effect of historic ones.
8025. Perhaps the most significant engine that drove the building of Canada was what was given by and taken from First Nations. It has taken a long time, but Canadian law has started to adjust, and continues to adjust, to address the gross injustices of this taking. What's been taken? Lands, language, culture, way of life, land-based economies, dignity, ability to exercise rights, and ability to self- determination, taken together, voice, control over one's fate and future.
8026. Every single person in Canada, including in this room, who is not an Indigenous person, is a beneficiary of this taking. Wealth and power from use of lands and resources is finite. Clearly, the distribution of wealth and power in Canada is massively lopsided.
8027. As beneficiaries, it's incumbent on each and every one of us to do our little bit to pay it back, to right the wrong. And the wrong is not at all just historical. It exists and is felt today.
8028. This ongoing perpetual harm could be, and has been in this hearing, called "death by a thousand cuts." Perhaps this individual transmission line by itself might not destroy a First Nation or its rights. But this project occurs in the context of hundreds, if not thousands, of other incursions into First Nation lands and rights from Crown authorized developments and land uses and exploitations. Cumulatively this becomes death by a thousand cuts. Each individual cut may seem small, even trivial, but added together they become fatal.
8029. There are serious cumulative impacts in the area where this transmission line would be built. The load is already causing hundreds of these cuts. For Sagkeeng it may be nearing the 1,000 mark.
8030. Not only do these cumulative impositions on First Nations against their will and often without their input add to impacts on land-based rights and culture, but they also hit at the heart of self-determination, removing yet again the ability of First Nations to have a real say over their own fate and future.
8031. Here, justice demands that the duty to consult and accommodate be met to its full extent and purpose. We achieve this through the conditions which this Panel will put on the certificate that the NEB orders, if it orders.
Transcript EH-001-2017 Final argument Mr. Shefman 8032. What's the purpose of the duty? It arises from and is the main vehicle through which the purpose of section 35 of Canada Constitution is to be fulfilled. The purpose of section 35 is reconciliation.
8033. Reconciliation is the "fundamental objective" of Aboriginal law, including the duty to consult, duty to consult and accommodate. [Mikisew Cree First Nation v Canada (Minister of Canadian Heritage) 2005 SCC 69, para 1]
8034. But what does that really mean? Reconciliation means finding a way to make two different world views or ideals or cultures with sets of law to exist or be true at the same time.
8035. Section 35 was necessary to begin with in order to uphold the centuries of failure to reconcile the two peoples, those centuries in which the Crown and settlers subjugated, oppressed and suppressed Indigenous peoples. This was, and is, cultural genocide and colonialism. These are not my words. They're the words of courts and commissions of inquiry throughout Canada. The purpose of section 35 is to end the operation and effects of colonialism.
8036. Long before Europeans explored and settled North America, they were occupying and using -- First Nations were occupying and using most of this vast expansive land in organized, distinctive societies, with their own social and political cultures. [Mitchell v MNR, 2001 SCC 33 at para 9]
8037. First Nations were here governing and sovereign. The Crown came, sought cooperation and rights from First Nations through treaties, but then proceeded to take much control and land away from First Nations.
8038. According to the Truth and Reconciliation Commission of Canada, Canada is emerging from a long dark period of "cultural genocide," in which:
"…central goals of Canada's Aboriginal policy were to eliminate Aboriginal governments; ignore Aboriginal rights; terminate the Treaties; and, through a process of assimilation, cause Aboriginal peoples to cease to exist as a distinct legal, social, cultural, religions, and racial entities in Canada." [Truth and Reconciliation Commission of Canada, “Honouring the Truth, Reconciling for the Future: Summary of the Final Report” (2015) at p 1]
Transcript EH-001-2017 Final argument Mr. Shefman 8039. Much had to, and still has to, be done to decolonize Canada. The passing in 1982 of section 35 and its recognition and affirmation of Aboriginal and treaty rights is only the beginning of a new era of reconciliation.
8040. As Haida tells us, reconciliation is a process and not a final legal remedy. [Haida Nation v British Columbia (Minister of Forests), 2004 SCC 73 at para 32]
8041. It must not be treated -- at the same time as it's not a final legal remedy, it must also not be treated as a distant legal goal or a "mere incantation." [Haida Nation v British Columbia (Minister of Forests), 2004 SCC 73 at para 16]
8042. But like the honour of the Crown, it must be articulated in the present through concrete practices. The Crown must always act in order to effect reconciliation. In all its dealings with Aboriginal peoples, from the assertion of sovereignty to the resolution of claims and the implementation of treaties, the Crown must act honourably. Nothing less is required if we are to achieve the reconciliation of the pre-existence of Aboriginal societies with the sovereignty of the Crown.
8043. The unique relationship between Aboriginal peoples and the Crown calls for a generous, liberal, and purposive interpretation to section 35, treaties and legislation relating to Aboriginal peoples, and the duty to consult. If the duty to consult and accommodate is to carry out the purpose -- sorry, if the purpose of the duty to consult and accommodate is to carry out the purpose of section 35, then this duty must reflect a nation-to-nation relationship that reconciles pre- existing Aboriginal sovereignty with assumed Crown sovereignty.
8044. Indigenous peoples were the original occupiers and governors of North America. They entered into treaties with the Crown which allowed the Crown to settle here. The Crown derived rights to be here because they were granted those rights by Indigenous nations, nation-to-nation. Rights went from First Nations to the Colonial nation, not the other way around.
8045. If Indigenous peoples were actually dealt with on a true nation-to- nation basis today, the duty would require that the Crown obtain their free, prior, and informed consent. It would be a bilateral, dual-consent relationship, much as it is with Canada and the United States over shared lands and boundary waters.
8046. Canada is moving in that direction. Canada has ratified and is in the
Transcript EH-001-2017 Final argument Mr. Shefman process of implementing the United Nations Declaration on the Rights of Indigenous Peoples [GA RES 61/295, UNGA, 107th Plen Mtg, UN Doc A/RES/61/295 (2007)] which authoritatively sets out the requirement for free, prior, and informed consent.
8047. But since Canadian law is not yet fully there, the duty must substitute for that. This means that the duty must be applied widely and deeply.
8048. The duty applies widely. It applies whenever the Crown contemplates conduct, that conduct might adversely affect asserted or known Aboriginal or Treaty rights and the Crown has actual or deemed knowledge of such rights. [Haida Nation, at para 35; Carrier Sekani, at para 31].
8049. The duty applies to any effects on any such asserted or known rights, which are also broad. They include the rights to land, to the resources on the land, to protection and practice of their cultures, and rights to self-determination through participation in governance over their lands and their cultures.
8050. The duty is the way in which the bilateral nation-to-nation relationship is carried out. Its purpose is to effect reconciliation between sovereign peoples in shared land.
8051. The duty has both procedural -- which is the consultation -- and substantive -- which is the accommodation components. Enge v. Canada, decision of the federal court, stands for that. [Enge v Canada (Indigenous and Northern Affairs), 2017 FC 932 at para 137]
8052. Given that it falls short of requiring consent in all cases, it is critically important that every ounce of both the procedure and the substance be fulfilled.
8053. The duty is grounded in the honour of the Crown. The fact that the duty is an integral aspect of the honour of the Crown means that the Crown must always consult with Indigenous peoples:
“In good faith, and with the intention of substantially addressing the concerns of the Aboriginal peoples whose lands are at issue.”
8054. As Delgamuukw tells us. [Delgamuukw v British Columbia [1997] 3 SCR 1010, at para 168]
Transcript EH-001-2017 Final argument Mr. Shefman
8055. In order to substantially address such concerns, accommodation measures must be provided. These include measures to prevent impacts, to mitigate non-preventable impacts, and to compensate for those impacts that remain.
8056. If the process of consultation does not allow meaningful change to be made to the proposed activity in order to accommodate First Nation concerns, then the so-called consultation will be nothing more than inviting the Indigenous peoples to blow off steam, as the court tells us in Mikisew Cree. [Mikisew Cree at para 54]
8057. That would be a breach of the duty.
8058. Mikisew tells us that the duty must be more than just blowing off steam. Consultation which excludes from the outset, any form of accommodation, would be meaningless.
8059. Sagkeeng has treaty rights to hunt, fish, trap, gather plants and medicines, and protect and use lands and resources associated with those rights. It also has asserted title to lands near the transmission line. It has the right to self- determine. It cannot be in keeping with the honour of the Crown or reconciliation to allow the rights and asserted rights of Sagkeeng to be run roughshod over. To do so would continue the effects and practice of Colonialism and death by 1,000 cuts.
8060. The duty is the major vehicle through which the grand purpose of section 35 of the Constitution is to be met. This is it. If we fail it here, there is no other place to turn within the framework of Canadian law.
8061. As such, the NEB must impose conditions on the certificate for this transmission line that meet or that require the meeting of the duty. The Board must do so because Canada has a duty which must be discharged, a duty which Canada has fully delegated to the NEB.
8062. As a result, the NEB must impose conditions that ensure sufficient understanding of impacts to First Nation rights, conditions which contain sufficient measures to prevent or where prevention is not possible, to mitigate such impacts, and conditions which provide sufficient benefits including compensation to offset the residual impacts so as not to leave Sagkeeng and other
Transcript EH-001-2017 Final argument Mr. Shefman First Nations worse off and bearing the brunt yet again of what the Crown wants to do or authorize.
8063. Twenty-five (25) to 30 percent of the cleared area for this project will be on Crown lands. These are the only lands left in this area where Sagkeeng can practise its traditional harvesting rights. Sagkeeng relies heavily on these so- called Crown lands for the practice of Treaty rights. When land is taken up for Crown-authorized purposes, either leased or sold, or whatever, to a third party, such land is rarely usable again by First Nations to exercise their rights.
8064. So whatever Crown land is left becomes that much more important. And despite Hydro's objections, the fact that the right-of-way will technically, physically, remain available and unrestricted is irrelevant. It's no longer fit for purpose.
8065. And of that remaining Crown land, those lands that are not already heavily affected or harmed by developments become more important still. Sagkeeng's territory has become more and more fragmented, contaminated, and privatized over the last several decades. This project will inevitably damage over the extremely long -- by Hydro's own evidence, effectively permanent -- term, an additional portion of previously usable harvesting territory and thus add as an accelerant to the already significant adverse cumulative effects on Sagkeeng's territory.
8066. Sagkeeng members report using the project-affected area for treaty rights practices. But Sagkeeng has been unable to complete research or study to determine the nature, extent, location, and timing of the exercise of those Sagkeeng rights and values in the area of the project.
8067. Why has Sagkeeng been unable? Because Hydro has effectively denied both the need for such information and the ability to get that information. First, Hydro has denied the need for it. Hydro denies that the inevitable project- specific impacts will be more than minor or negligible. It also does not recognize, despite strong evidence to the contrary, that pre-existing total cumulative effects loading in the project-affected area are already beyond a point of significance. They refuse to acknowledge this, despite massive amounts of land privatization, forest clearing, and wildlife habitat and population losses.
8068. Sagkeeng has, within the limits of its capacity here, provided evidence to the contrary. This is perhaps the most destructive aspect of the relationship
Transcript EH-001-2017 Final argument Mr. Shefman between the Crown and First Nations when the Crown-authorized party simply rejects the validity of First Nation concerns and then uses that rejection as the excuse for not providing any accommodation measures to address its concerns. In doing so, the Proponent says or implies that the First Nations' concerns are simply invalid.
8069. Despite its protest to the contrary, Hydro has effectively de-legitimized Sagkeeng, its world view, its culture, and its voice by patting Sagkeeng on the head and saying, "Don’t worry. You can trust us. Nothing bad is going to happen."
8070. Hydro has refused to proactively adopt any additional condition or measure recommended during this hearing process, whether by Sagkeeng or any other affected Indigenous group.
8071. We ask the Board whether these are the actions of a party willing to actually hear, determine, and understand, let alone accommodate, the concerns of affected Indigenous groups. The Board must step into this breach.
8072. Second, Hydro has denied Sagkeeng the ability to gather information related to impacts on rights. Hydro manipulated and controlled the Crown -- the engagement process.
8073. Hydro admits that First Nations have a totally “different world view” and culture then the Crown controlled box of laws [Transcript, Vol 7, June 19, 2018; pg 92, para 3927].
8074. Hydro admits that First Nations have to be squeezed into, and made to somehow fit, within the Crown legal regime box, such as this NEB and EA regime [Ibid, para 3928-3929].
8075. But then Hydro leaves the First Nations to try to fit by simply walking as they are into the Crown box with no map or translation provided.
8076. Hydro provided no independent offers to fund technical experts who could provide both that map for First Nations to navigate the maze of western science and law and translate the First Nations’ concerns and cultures so that they can be properly understood and applied by the Crown. It’s not magic. It’s not a new discovery. It’s standard practice in nearly every other Canadian jurisdiction.
Transcript EH-001-2017 Final argument Mr. Shefman 8077. Nor is this to suggest that the First Nations are not able to participate in these processes. This is not a question of ability. It’s a question of trying to fit a square peg into a round hole. Expecting a group of people with one world view to be able to translate their interests, rights, and needs to fit a different, and in many ways opposing, world view, without dedicated resources is not respectful, and is not conducive to meaningfully addressing their concerns. It’s a recipe for frustration and misunderstanding.
8078. When any Crown or proponent purports to be honouring and respecting a First Nation by speaking directly to them or letting them participate themselves without advisors or experts who provide those maps and cross-cultural translations, what they’re actually doing is disrespecting First Nations.
8079. First Nations can and should speak. But this denial of these crucial interpretative services means their voice will land on deaf ears.
8080. Hydro failed to initiate or offer any engagement in which experts in western science, and experts in gathering, traditional land use, and traditional knowledge, and translating these values into western understandings would be available and encouraged. In doing so, Hydro didn’t respect Sagkeeng’s voice.
8081. Therefore, we ask the Board to require the imposition of two conditions that will go towards this first requirement in the duty to consult, which leads to accommodation, the understanding of those concerns.
8082. Consistent with our previous submissions, we ask the Board to impose conditions, if a license is issued, which, one, require Hydro to fund a comprehensive traditional land use and knowledge study in the entire area of impact of the project, in accordance with best practices by an expert qualified in the field.
8083. And, two, require Hydro to develop, with affected First Nations, and to fund a environmental monitoring regime which is consistent with the best monitoring practices in which Indigenous peoples are involved throughout Canada. This will include one monitor reporting -- this must include on monitor reporting to each affected First Nation. That is one monitor per First Nation.
8084. The second type of condition is preventing and mitigating impacts.
8085. All impacts from this project must be understood in the context of the
Transcript EH-001-2017 Final argument Mr. Shefman cumulative impacts that already exist. For instance, if I said to you that I want to remove just one small bolt from an airplane, you might think it’s fine, put no conditions on me to ensure that this is done in a way that would not cause unacceptable negative consequences, because it’s just one bolt.
8086. But if you know the context that 99 bolts had already been removed from that airplane, you would certainly impose a number of strong conditions on me to make sure that removing that one bolt wouldn’t cause more plane -- wouldn’t cause the plane to crash. You might even not let me remove the bolt at all.
8087. That’s Sagkeeng’s position here.
8088. Sagkeeng territory in southern Manitoba, as a whole, has been subject to extensive fragmentation, industrialization, privatization, and alienation for Sagkeeng and other Indigenous groups.
8089. Sagkeeng members report significant encroachment on the lands and Treaty 1 Territory that have put restrictions and limitations on cultural and traditional activities [A91072-65, “Additional MMTP Traditional Knowledge Studies – O-Pimatiziwin 2 Supplementary Report”, pg 2].
8090. Sagkeeng members equate hydro development with long term cumulative impacts in their territory. Sagkeeng members noted that:
“The impacts of hydro development on traditional lands and waterways and on the cultural practices and traditions of the Sagkeeng First Nation have been witnessed and experienced by its members for over a hundred years yet members have seen little in the way of compensation for the impacts on their lands, waterways and lives in general” [A81184-3, pg 52]
8091. The proponents evidence recognizes that:
“…the landscape in southern Manitoba and within Treaty 1 […] has been modified by land conversion for agricultural purposes, resource development, transportation networks, the creation of [right-of-ways] and utility corridors and the transformation of small human settlements into towns and cities. As a result, […] [traditional [land] and resource use]
Transcript EH-001-2017 Final argument Mr. Shefman has experienced cumulative effects and with the addition of the Project and other projects and planned activities will continue to experience cumulative effects.” [A81182-20, EIS ch 11, pg 11-66]
8092. Page 6.1 of the EIS notes that this part of southern Manitoba has been substantially affected by more than 100 years of development.
8093. Despite all of this evidence to the contrary, Hydro says that the cumulative effects of this project are insignificant in relation to traditional land and resource use, and associated resources such as moose and vegetation.
8094. It says, at page 11-66:
“When past, current and future project effects on the landscape are considered, the Project’s contributions to cumulative effects on TLRU are anticipated to be incremental and negligible.” [A81182-20, EIS ch 11, pg 11-66]
8095. We point out to the Board that this finding is predicated on the term, “Project’s contributions” rather than total cumulative effects loading. A fundamental missing of the point of cumulative effects assessments.
8096. These infringements have never been mitigated or accommodated for by the Crown. Sagkeeng and its members have never seen financial or other offsets for the massive losses to well-being, way of life, and economic independence caused by this multitude of Crown decisions.
8097. Manitoba Hydro’s particular role in these cumulative impacts is an extensive one with large numbers of dams, hydroelectric generating facilities, transmission lines, and the facilitation of industrial development through electrification in southern Manitoba.
8098. Manitoba Hydro, as an agent of the Crown, has yet to provide meaningful accommodation or offsets for the losses to date. [A91176-1, IR NEB_SFN-IR-001.9e]
8099. Manitoba Hydro has no identified any meaningful accommodation for Sagkeeng, including ecological or restoration offsets in relation to this project.
Transcript EH-001-2017 Final argument Mr. Shefman 8100. This is despite the fact that the project is recognized to be likely to contribute to land fragmentation, deforestation, constriction of wildlife habitat, increased perceived risk by Sagkeeng members, and associated alienation of Sagkeeng’s rights and interests.
8101. In every case in which Manitoba Hydro’s preferred outcome has conflicted with both the traditional evidence and the western evidence provided by Sagkeeng, Manitoba Hydro has adopted its own preferred outcome. That is not how accommodation works.
8102. Manitoba Hydro has also not included the costs of accommodation or offsets in its cost estimates for the project, using the argument that none are required.
8103. Sagkeeng disagrees that the impacts for the project are likely to be minimal or insignificant. In a cumulative effects context like this one, where so much change has already been heaped on the land and its peoples, any incremental loss of critical wildlife and harvesting habitat must be considered significant.
8104. Manitoba Hydro’s failure to adequately study and consider cumulative impacts to moose, including historic range and distribution, assessment of cumulative effects, and inclusion of linear disturbance density, prevents discussion of accommodation with respect to Sagkeeng’s rights to harvest moose and effectively renders Manitoba Hydro’s application incomplete.
8105. It really should be incumbent on the Proponent to show that the land is healthy enough to handle additional change. We suggest that the NEB’s decision, and the quantum of mitigation and accommodation measures required, needs to be predicated on that same basis.
8106. The Board’s own filing manual states that:
“[t]he evaluation of significance must focus on the total cumulative effects that may be created from all physical [activities and facilities] considered in combination with the proposed project” [NEB Filing Manual, Guide A – A.2, ESA, A.2.7.3, Page 4A-43 (91/270)]
8107. Not the proposed project on its own.
Transcript EH-001-2017 Final argument Mr. Shefman
8108. Despite this clear direction from the Board and similar strong recommendations by Doctors Gunn and Noble, the proponent has refused to focus on cumulative effects loading, instead focusing on the project’s contribution.
8109. Sagkeeng finds this approach to be contrary to the Board’s direction and started requirements, and thus recommends that the Board make its determinations on significance of cumulative effects based on the total cumulative effects, not the project’s contributions to them.
8110. The cumulative effects context is critical because it shows a high degree of existing damage and future risk from climate change and additional clearing.
8111. The project -- potential project-specific adverse impacts on Sagkeeng include: impacts to Treaty 1 rights, like hunting, fishing, and gathering; loss of habitat for wildlife, and food, and medicinal plants; alienation due to visual and other sensory alterations of the right-of-way; and concern and stigma about contamination; loss of culture and continuity, and teachings, which will be impacted by the clearing of the right-of-way and the removal of lands which are used for the transmission of knowledge; damage to -- impacts to moose, which are important to Sagkeeng; impacts to plants, such as those used for food and medicine; as well as the psychosocial stress, which will be heightened due to both the use of herbicide and vegetation management, and the presence of electromagnetic fields; and an altered visual context incompatible with Sagkeeng culture.
8112. Hydro disregards all of Sagkeeng’s concerns by effective saying, “We’ve made the changes that we’ve decided to make. We have all the experts we need on our payroll, and you have none, or very few, and thus, you haven’t done enough to fit your views and concerns within the Crown legal regime box. And as a result, your concerns can’t have merit.”
8113. This is the height of abuse of trust and paternalism. Hydro said, “Trust us.” Then turn that trust against the First Nations by writing off their concerns. And now they say, “Don’t worry, we know best anyways.”
8114. We ask the Board to impose conditions to ensure sufficient accommodation measures to prevent and mitigate impacts. Applying a precautionary principal, the Board ought to adopt Sagkeeng’s proposed conditions
Transcript EH-001-2017 Final argument Mr. Shefman SAG7, 8, 9, and 10. That’s provided at A92182.
8115. And Sagkeeng and other First Nations and Indigenous peoples must be involved in environmental management in a serious way, including with respect to decisions about herbicide use.
8116. Finally, the third type of condition: offset benefits including compensation.
8117. We believe the Board, and really, any reasonable person, ought to find the project will cause inevitable additional adverse impact loading on wildlife, habitat, and traditional land and resource use for Indigenous peoples.
8118. We also believe the project will find that these unavoidable adverse impacts, which will be permanent, need to be added on top of what is demonstrably an existing state of standing significant adverse cumulative effects.
8119. At this stage, Sagkeeng must be accommodated for any impacts arising out of the project which have not, and can not, be prevented or mitigated to zero. This will require offsetting measures, or benefits, or compensation to remove the negative balance faced by First Nations.
8120. Sagkeeng proposes land offsets, as set out in Sagkeeng’s proposed license condition SAG7. But as we’ve heard this week, Sagkeeng doesn’t think that offsets are necessary and they’re refusing to consider them. Hydro has no plans to offset for the clearing of forested areas.
8121. In our view, the complete lack of restoration offsets for inevitable habitat and harvesting area losses as a result of clearing, as well as other alterations, is the most glaring gap in the Proponent’s so-called mitigation accommodation proposals to date.
8122. Without offsets, Hydro’s mitigation plan is like a bucket without a bottom. They can shovel as many promises as they want into that bucket, but they’re just going to keep falling out.
8123. In the context of significant pre-existing cumulative adverse effects, which Manitoba Hydro somehow manages to brush off in a mere sentence or two in its EIS, every hectare of lost Crown forest is an additional infringement on Sagkeeng’s rights. And in other words, context is everything.
Transcript EH-001-2017 Final argument Mr. Shefman
8124. In southern Manitoba, the standard of mitigation and accommodation must be pushed higher. It must be magnified in the same way that the cumulative effects themselves are magnified by the continued erosion and loss of land and alienation of that land to Indigenous -- from Indigenous peoples.
8125. This isn’t reflected in Hydro’s mitigation proposals, which might be deemed adequate in the context of an alienated landscape, but which is demonstrably not the case here.
8126. Nonetheless, in response to a direct question from Sagkeeng on this topic, the Proponent indicates that it doesn’t propose to conduct restoration offsets in relation to MMTP.
8127. We address this issue in greater detail in our written evidence, and I won’t repeat that here.
8128. The Crown, if it’s being true to the expectations of UNDRIP and reconciliation, will recognize that a net improvement to lands, wildlife, and Indigenous well being, not just a minimization of additional laws, has to be the standard with which future approvals in Southern Manitoba are set against.
8129. Thus, Sagkeeng reiterates our call for two additional conditions to be placed on any federal approval for this project. SAG7 and SAG9, both relating to offsets.
8130. Sagkeeng also proposes meaningful benefits of an economic nature. Again, to ensure that there’s no negative balance on First Nations. These benefits are akin to those implemented in best practices in many other jurisdictions in Canada through impact benefit agreements, but noticeably not yet in Manitoba. We set out those conditions in proposed condition SAG11.
8131. What Hydro has suggested is -- what Hydro has suggested is, in their view, sufficient, falls far, far short of what is actually sufficient, and is little more than window dressing.
8132. Quite simply, Manitoba Hydro’s proposed mitigation measures have not accommodated Sagkeeng for the impacts of their project on Sagkeeng’s constitutionally guaranteed rights. Without more, the duty to consult and accommodate will not be fulfilled.
Transcript EH-001-2017 Final argument Mr. Shefman
8133. Hydro has explicitly rejected the suggestion that its individual MMTP agreements are accommodation at all. Those are their words. And thus, those agreements ought to be given no weight by the Board. The fact that they were standard form agreements offering financial benefits for a more ten years on a transmission line that’s going to be there forever, causing impacts forever, is all the more reason for the Board to simply ignore those agreements.
8134. Hydro has rejected the idea of revenue sharing out of hand, despite providing no principled argument for its position. Hydro’s supposed employment benefits guarantees less than a one third of all the jobs on MMTP’s constructions will go to all Aboriginal people, with no guarantees that there will be any particular employment benefits to any particular Aboriginal group.
8135. If the Board permits Hydro to proceed with its current program, it is entirely conceivable that no Sagkeeng members could be employed on the project.
8136. This is another example of the many examples throughout the record of Hydro -- throughout the record, of Hydro’s tendency to adopt a pan-Indigenous approach, lumping the interests of all Indigenous peoples together, as if they were interchangeable and homogenous.
8137. Reconciliation must include positive benefits for First Nations. Allowing mitigation measures to fall short of fully making First Nations whole contributes to the death by 1,000 cuts facing Indigenous peoples already. While simply making Indigenous peoples whole on a project by project basis, as opposed to on a holistic basis, is merely a Band-Aid, doing nothing to reverse the loss trend which Indigenous peoples face in nearly every aspect of their traditional lives.
8138. If the duty to consult, as it is, with the intent of substantially addressing the First Nations’ concerns is to be met, then these accommodation measures must be imposed through conditions ordered by this Panel on the NEB certificate.
8139. In closing, this Panel must keep in mind that the constitutional duty to consult and accommodate must inform the entirety of your decision. And it must be discharged here by you in order for the remainder of the decision to be valid and legal.
Transcript EH-001-2017 Final argument Mr. Shefman 8140. The duty to consult and accommodate has both procedural and substantive development, and both must be fulfilled in order for the duty to be met.
8141. And finally, the Board has all the authority it needs to give meaning to the generous and purpose of interpretation which the duty requires.
8142. Reconciliation will only be possible if the duty and section 35 of the Constitution are empowered by decision makers like the NEB to accomplish their purpose.
8143. The tools have all been laid out in front of you. The instruction manual is open to the right page. All that's left for you is to put it all together.
8144. Chi-miigwech.
8145. THE CHAIRPERSON: Thank you, Mr. Shefman. We -- if you could just hold on a second.
--- (A short pause/Courte pause)
8146. THE CHAIRPERSON: I just want to see if I understand some of your arguments in very broad strokes, and forgive me if don't get it exactly correct in my recitation.
8147. But it seems to me what you're suggesting to us is that the Board has all of the power necessary to do whatever it takes to fulfill the duty to consult in this case, and you conclude that pointing to the paramountcy provisions in the electricity provisions of our Act and the Interpretation Act and the delegated power that we've been given by the Crown.
8148. So just a couple of things about that. Have I got that correct, those are the foundational elements of where you suggest we get our authority?
8149. MR. SHEFMAN: The one -- yes. The one additional place is the case of West Moberly and Wahgoshig, which confirmed that the duty exists upstream of statute. And so the fact that basically, I mean, they all work together. Each one on its own might not do the trick, but with the fact the duty exists upstream, the delegation of the duty and then the Interpretation Act and the paramountcy provisions taken together mean that you have this duty. The fact
Transcript EH-001-2017 Final argument Mr. Shefman that the duty isn't in the Act doesn't matter. And you have all the power you need to fulfill this constitutional duty.
8150. THE CHAIRPERSON: If we could spend a few minutes on the concept of paramountcy.
8151. MR. SHEFMAN: M'hm.
8152. THE CHAIRPERSON: The NEB hasn't been involved in cases recently involving the concept of paramountcy, and conflict between provincial and federal law is in fact conditions imposed by the Board and involving the City of Burnaby and the Trans Mountain Pipeline. And in those cases, there is a fair bit of time spent on the whole notion of cooperative federalism and the fact that while paramountcy is a principle in law generally speaking it's not invoked unless there's an actual conflict between provincial laws and federal laws. I may have misstated it precisely in terms of a concept, but ---
8153. MR. SHEFMAN: That's my understanding as well.
8154. THE CHAIRPERSON: All right. So in terms of the things that are within provincial jurisdiction, are you suggesting that somehow we acquire, as a result of this formula that you've put forward, the powers of some provincial -- some of the provincial government's powers or obligations in terms of the duties -- duty to consult?
8155. MR. SHEFMAN: No, I wouldn't take it quite that far, but I don't think it would be necessary for you to do so. What we're arguing is, there's a couple of different parts to it.
8156. First of all, we don't think -- and this came up a little bit the other day in one of the motions -- we don't think that you have any need to decide whether the provincial duty has been discharged, but there are two duties. The Federal Crown's duty is separate from the Provincial Crown's duty.
8157. The duty is both to -- the duty is consult and to accommodate. It must be carried out with the view to substantially addressing the concerns of the First Nations. Each duty must be discharged with the view to substantially addressing the concerns of First Nations.
8158. So what that means is, and I think I used this analogy or this example
Transcript EH-001-2017 Final argument Mr. Shefman in my submissions, if in the Board's mind in order to substantially address the concerns of first -- of Aboriginal peoples you have to impose Conditions A through Z and the province has already or has said that it intends to already impose Conditions A through H; that doesn't mean that you start after H. You can still impose Conditions A through H as well as, you know, to Z.
8159. To the extent that there's conflict between them, to the extent that -- I mean, when we're talking about cooperative federalism what we're talking about is that paramountcy is sort of -- looks to apply when it's impossible to carry out one obligation, a federal obligation without breaching the provincial obligation or vice versa.
8160. So to the extent that it would be necessary for Manitoba Hydro to breach a provincial obligation in order to comply with the federal obligation -- so if, for example, your Condition B ---
8161. THE CHAIRPERSON: I was just getting to the point. It doesn't expand our jurisdiction into provincial matters?
8162. MR. SHEFMAN: It doesn't, but I don't think it needs to. This Board, in exercising its authority under 58.16, has the authority to do everything it needs to do in order to -- and because of that ---
8163. THE CHAIRPERSON: Can we spend a bit of time on that. Generally speaking, regulatory bodies like this one are considered to be creatures of statute receipt -- in receipt of the powers given by the legislation, and one of the powers that isn't in our Act, and we've been repeatedly told this, is compensation. But I hear you suggesting that somehow as a result of the duty to consult our powers have been expanded outside the statute.
8164. MR. SHEFMAN: M'hm. Absolutely. It has to be.
8165. THE CHAIRPERSON: Wouldn't that necessarily assume that some other body isn't in a position outside us to fulfill some of that? For instance, in this case, the certificate process is subject to Governor in Council approval. It's not ours.
8166. MR. SHEFMAN: But it's subject ---
8167. THE CHAIRPERSON: We recommend ---
Transcript EH-001-2017 Final argument Mr. Shefman
8168. MR. SHEFMAN: Sorry.
8169. THE CHAIRPERSON: We recommend, but they approve.
8170. MR. SHEFMAN: But they -- it is a materially different -- so I mean, there's a couple of pieces here.
8171. THE CHAIRPERSON: So in terms of our powers, I'm just curious about how, you know, in light of that and in light of the fact that we are a regulatory body with relatively fined -- confined powers, if that has any nuances for your argument?
8172. MR. SHEFMAN: Sorry. If I can just have a moment.
8173. THE CHAIRPERSON: It's a novel argument, I have to admit. I've -- I've not come across it before, the placing together of these various bits and the duty to consult. To suggest that you can change the statutory body into an entity that can offer what are normally powers of inherent jurisdiction of a superior court, which we don't typically have.
8174. MR. SHEFMAN: Well, I don't have the section reference in front of me, but there is, of course, a section in the NEB Act, which for some purposes gives the National Energy Board the powers of a superior court.
8175. THE CHAIRPERSON: But there's lots of case law that says we are not a court of inherent jurisdiction.
8176. MR. SHEFMAN: Of course.
8177. THE CHAIRPERSON: Lots.
8178. MR. SHEFMAN: Of course, and I'm not suggesting that this is a court of inherent jurisdiction. It's plainly not. But at the same time, it is also, I think it's fair to say, one of the administrative tribunals in this country which is -- has the broadest mandate and the broadest powers. It has -- it's -- to say that -- to refer to a primitive clause in the case of the NEB is, I think, I think would be minimizing the expertise of the NEB. And there's lots of jurisdiction, chiefly, and most recently, Chippewas and Clyde River in which the Supreme Court makes it clear that the NEB does have the power to fulfill the Crown's duty. Now, they
Transcript EH-001-2017 Final argument Mr. Shefman didn't go into a lot of detail about what specifically that meant, but ---
8179. THE CHAIRPERSON: Can I stop you there? As I read those cases, what they said was we have the ability to do it and we're best placed to do it because we have the ability to examine the project and understand the implications. I didn't see anywhere in those cases that they actually suggested, beyond the things that are within our regulatory power, we had any additional powers as a result of the duty to consult that they felt that we should assess.
8180. MR. SHEFMAN: And that's where we have to move to -- so I agree with that interpretation, but I think that's where we need to move to the authorities which inform what that means.
8181. We know, for example, that the duty must -- the duty to consult must take place with the -- with a view to substantiate accommodating or addressing First Nations' concerns. We know, and I cited the case, that to discharge or to purport to discharge the duty to consult without the ability to do that, without the ability to substantially address First Nations' concerns is akin to blowing off steam. And a process which is just a First Nation blowing off steam is a breach of the duty. And the Supreme Court's told us that -- or the court has told us that.
8182. And so the -- I think that the inevitable, the flip side of that argument or of that proposition, the inevitable -- where that proposition leads us is that the body discharging the duty to consult must have the power to substantially address First Nations' concerns. If they don't, if they don't have that power, then that consultation process will be just blowing off steam.
8183. You can't read -- and this is what it comes down to. You can't read the NEB Act in isolation. It isn't just the four corners of the Act. And to suggest otherwise is, I mean, frankly to ignore the basic principles of statutory interpretation, but also, the constitutional nature of the duty.
8184. You know, it was not long ago when some people were arguing, some lawyers were arguing that the NEB can't touch the duty because the duty isn't mentioned in the statute. Well, we know that's no longer the case. We know that the duty exists upstream of statute.
8185. And so, I mean, based on that alone, and taking none of the other authorities that I've talked about into account, knowing that the duty exists upstream of statute and knowing that you, of course, have the ability to discharge
Transcript EH-001-2017 Final argument Mr. Shefman the duty, you have to or else the Minister -- I mean, the Minister's letter will have meant nothing\. Knowing that you have that ability means -- tells us that this process must extend beyond the statute, because the statutes doesn't say you have the ability to discharge the duty.
8186. So we look to those other authorities. We look to the Interpretation Act, which says that any -- you have the power to do anything necessary to exercise a power given to you by statute. The NEB Act gives you the power to issue a certificate. As part of issuing that certificate, the Minister has said to you that they are -- that he is fully relying on you, on the NEB, to discharge -- I'm going to call it "his duty" but, you know, the Crown's duty. And so you must have the power necessary to do that.
8187. Now, does the Governor in Council have a final, you know, approval on your certificate? Of course. That's in the Act. But what's important is that there are different models in the Act. Different certificates are approved in different ways. Some certificates, like the one referred to in Gitxaala, are approved by the -- or the certificates are ordered by the Governor in Council and then just simply issued based on a report by the NEB.
8188. The fact that this certificate process is done reverse, that it's the NEB which sets out the certificate and simply gets the Governor in Council's sign-off on it means that we have to treat them differently. If you treat this certificate in this case the same way that the certificate is treated in the Gitxaala context where you're basically -- you're saying, you know, the -- it's the Governor in Council's job to make sure the duty's met, not only is that the opposite of what the Minister dictated, it's just -- it's not keeping with proper statutory interpretation.
8189. The -- yeah, I'll leave it there.
8190. THE CHAIRPERSON: Yeah, I think you're covering ground that perhaps you've already offered us.
8191. MR. SHEFMAN: And I think -- sorry, just to clarify, Madam Chair, what I meant to say, and I'm sorry if I was repeating myself. What I meant to say is that the -- you need to read your authority in its context, not isolated to the Act. To do so would be, I think what I called in my submissions, a dangerous narrowing of the NEB's jurisdiction.
8192. The Minister didn't have to delegate his duty. You know, Line 3 is a
Transcript EH-001-2017 Final argument Mr. Shefman good example of a project in this area, Enbridge's Line 3, where the duty was not fully delegated to the National Energy Board. MPMO, Major Projects Management Office conducted an engagement and a consultation there as well. Here they've said they're not going to do that.
8193. And so when I said in my submissions that the buck stops here, those aren't my words. I mean -- well, I'm paraphrasing, I suppose, but the Minister said as much when the Minister, as the representative of the Governor in Council, delegated its duty to you. There's nowhere else for us to go, I suppose, besides court, which, as my colleagues have said, is not something that is in anyone's best -- it's not in Hydro's interests. It's not in Sagkeeng's interests. It's not in the Board's interests.
8194. I suppose the only alternative is if this Panel is unsure of its jurisdiction with respect to ordering compensation, which we believe the statutes and the cases can be read very clearly to say it has that jurisdiction,. But if this Panel is unclear about its power, I believe that there's authority for the Board to refer that question to the Federal Court of Appeal. And so that would be, I think, an appropriate step, rather than making a partial decision.
8195. THE CHAIRPERSON: Mr. Shefman, we're going to take a break for about 20 minutes. And I'd appreciate it if you'd not leave the room. We may have another question for you.
8196. MR. SHEFMAN: I hope I can go get a coffee.
8197. THE CHAIRPERSON: Yes.
8198. MR. SHEFMAN: Okay. Thank you.
8199. THE CHAIRPERSON: Definitely.
8200. MR. SHEFMAN: Thank you, Madam Chair.
8201. THE CHAIRPERSON: We're adjourned for 20 minutes.
--- Upon recessing at 10:48 a.m./L’audience est suspendue à 10h48 --- Upon resuming at 11:10 a.m./L’audience est reprise à 11h10
8202. MR. SHEFMAN: Madam Chair, in answer to one of your earlier
Transcript EH-001-2017 Final argument Mr. Shefman questions occurred to me during the break, if I may.
8203. The question was raised about, you know, whether the Board has jurisdiction to order compensation. And specifically, Madam Chair, you asked about whose authority was at issue here; you know, the Governor in Council is the one who will eventually approve the recommendation and the certificate which the Board will issue.
8204. And while it's my submission very much that it's a constitutional imperative that based out of section 35 that this Board must look beyond the four corners of the statute, if I'm wrong, if that's not the case and if the Board finds that you are limited by the statute, the fact that the eventual approval or the sign-off has to be made by the Governor in Council means that even if you don't -- even if you are limited, even if you don't have that jurisdiction, the Governor in Council certainly does. There's no -- there can't be any question about that, both because Gitxaala says it and because the Governor in Council is the Crown and can do whatever it wants.
8205. And so even if you don't have the jurisdiction to order compensation, you can certainly include, as a condition on the certificate for approval by the Governor in Council, compensation, because the Governor in Council must have that jurisdiction.
8206. THE CHAIRPERSON: Mrs. Foreman, I wonder if you could pull the Minister's letter? I don't remember the exhibit number but I'm sure you'll enlighten us.
8207. MR. SHEFMAN: Looks like it was already ready.
8208. THE CHAIRPERSON: What a coincidence.
8209. All right. In the paragraph where Mrs. Foreman has the cursor placed there's a sentence further on.
"The Government understands that the NEB has the legal capacity to conduct consultations with Indigenous people[...], is best placed to consider the potential impact[s] of the project[...] on Indigenous rights, and has the authority to address most of such impacts, including through certificate conditions."
Transcript EH-001-2017 Final argument Mr. Shefman
8210. I wondered if you might turn your mind to that.
8211. MR. SHEFMAN: I could. I would -- and I'm prepared to respond to it for you, Madam Chair. I would only suggest that it may be -- if this is an issue that the Board is concerned about generally, it may be worth giving all intervenors as well as the applicant an opportunity to have some thought on it and submit brief, five-page written submissions or something on this particular issue, going forward, as it is an issue of great importance.
8212. So I'll, I guess, caveat my comments with I don’t have the time up here to do research and to consult the jurisprudence so take that as it may, then my comments may not be exhaustive.
8213. My response to that, the Minister's letter, goes back to what we heard in -- I can't remember offhand which case it was but -- Mikisew Cree, which tells us that if the process of consultation does not allow accommodation, does not allow the decision maker implementing the duty, discharging the duty to consult to accommodate, to fully or to substantially address the concerns of Indigenous peoples, then the consultation, the process, will be nothing more than blowing off steam, which is, as we heard, a breach of the duty.
8214. And so to the extent that this is not -- while this is letter from the Minister is certainly ---
8215. THE CHAIRPERSON: Could I attempt to summarize what I think you're about to tell me?
8216. MR. SHEFMAN: Sure.
8217. THE CHAIRPERSON: I think I've got it, and it's that okay, you may not have the ability to actually order this and perhaps condition it, but certainly the Governor in Council does, and that's the way this process should work?
8218. MR. SHEFMAN: I would submit that that's my alternative argument. My primary argument remains that you have the authority to order it, that the Minister's reference of the word "most", that you have the authority to address "most" of such impacts, this is not -- this document itself, this letter, is not an Order in Council. It is a Notice of Delegation. I think what legal impact each word of this document has is open for question.
Transcript EH-001-2017 Final argument Mr. Shefman
8219. I don't think that the Minister -- okay, if the Minister meant to limit your discretion, to limit your jurisdiction with the word "most", then the Minister will have, must have more specifically limited that jurisdiction. It cannot be in keeping with the constitutional imperative that the Minister could just put in this one word, "most", and somehow that is able to -- we would have to intuit what limits that places on your jurisdiction.
8220. I would suggest that that's a turn of phrase rather than a legally binding comment, but in the alternative that I'm wrong, then yes, the point that you made or your summary of my argument would be my position, that anything that falls outside that "most", anything that you do not have the jurisdiction to address, the Governor in Council must, necessarily, and so therefore, it would be open to you to recommend to the Governor in Council that it so order.
8221. I would also reference paragraph 48 of Chippewas of the Thames which is where the quote that you gave earlier, Madam Chair, that, "…the NEB is particularly well positioned to assess the risks posed by such projects to Indigenous groups" comes from.
8222. In the very next sentence, the Court tells us:
"Moreover, the NEB has broad jurisdiction to impose conditions on proponents…"
8223. And so one follows the other and so they have to be read together. And so if the Board is particularly well positioned to do the first part of the duty and has very broad jurisdiction to address that first part of the duty, in other words, the substantive part of the duty, the accommodation part of it, then I would submit that it wouldn't make logical sense, it wouldn't be consistent with the constitutional imperative for the Board's jurisdiction to stop just short of full accommodation.
8224. THE CHAIRPERSON: Thank you, Mr. Shefman.
8225. MR. SHEFMAN: Thank you, Madam Chair. Thank you, Panel Members.
8226. THE CHAIRPERSON: Wa Ni Ska Tan, Mr. Wheeler.
Transcript EH-001-2017 Final argument Mr. Wheeler
--- FINAL ARGUMENT BY/ARGUMENTATION FINALE PAR MR. WHEELER:
8227. MR. WHEELER: Good morning, Madam Chair, and good morning to the Panel.
8228. As you’ve heard before, my name is Jared Wheeler. I am a lawyer at Jerch Law. We are counsel to Wa Ni Ska Tan, an intervenor in this hearing, and to Manitoba Hydro's proposed MMTP before you, the National Energy Board.
8229. We would first like to acknowledge that this hearing is taking place on Treaty 1 Territory in the homeland of the Métis Nation. And that's very important to acknowledge the Treaties, including Treaty 1, as the treaties articulate a recognition of reciprocal responsibilities involved in relationships between multiple nations and peoples.
8230. And you heard my friend Mr. Valdron discuss this concept a bit this morning and I will be digging further into that as well, that concept of relationships.
8231. And from Wa Ni Ska Tan's perspective, some of the central issues before the Board are how to consider Treaties in the context of this hearing as an articulation of those relationships and also whether the proper groups have all been engaged in this process.
8232. As an introduction to Wa Ni Ska Tan, because this is important as well, because Wa Ni Ska Tan stands out a bit from the other intervenors in this hearing. Wa Ni Ska Tan is an independent, non-profit research alliance that is administered to the University of Manitoba. It consists of representatives from 24 Cree, Oji-Cree, Nakota, and Anishinaabe Nations, as well as representatives from the Métis Nation, and researchers, social justice, and environmental NGOs, and academics from both Canada and the U.S.
8233. Wa Ni Ska Tan receives its direction from an executive committee, a steering committee, and from its membership. All three of these decision-making bodies have majority representation from Indigenous people.
8234. Wa Ni Ska Tan formed because critical voices of elders, land users, and community members have been effectively excluded in the various processes and hearings considering Manitoba Hydro's expansion across the province.
Transcript EH-001-2017 Final argument Mr. Wheeler
8235. The senior academics involved secured a major funding grant from the Federal Social Sciences and Humanities Research Council of Canada to support the work that revolves around sustained and high-impact research, education, public outreach, and advocacy regarding these issues.
8236. Wa Ni Ska Tan applied to participate in this hearing as an association, as a special interest group. The Board granted Wa Ni Ska Tan Aboriginal intervenor status.
8237. And as I said, it is important to note that as an intervenor, Wa Ni Ska Tan stands alone as consisting of members from a diverse group of experts in their respective fields, male and female Indigenous experts from northern and southern Manitoba who are traditional land users; an academic expert on Aboriginal politics in Canada; elders, knowledge holders, and grandmothers willing to share relevant and important teachings; an Indigenous academic expert in oral histories and Hydro development from an Indigenous perspective; community members who have lived experiences, making them experts on the detrimental effects of Manitoba Hydro development; an academic expert in cross- cultural and trans-disciplinary research and environmental science; experts in Crown consultation from an Indigenous perspective; hunters, fishers, trappers, and gatherers; a legal and academic Indigenous expert in interpreting Treaty 1 from an Anishinaabe perspective; as well as an Indigenous academic who specializes in oral narrative, Indigenous rights, and the environment.
8238. Wa Ni Ska Tan provides an opportunity for a diverse group of experts to come to the table together, each with an equal voice, each with a different perspective.
8239. This hearing has provided an opportunity for the Board to hear the voice of Wa Ni Ska Tan and some of the voices of this group of experts. It is our hope that the Board will recognize the value in those voices and expertise and ascribe the appropriate level of weight to the information shared with the Board from Wa Ni Ska Tan.
8240. We submit that the information shared by Wa Ni Ska Tan should weighted very heavily in providing assistance to the Board in making the important decision before you.
8241. From the evidence on the record in this hearing, it is Wa Ni Ska Tan’s
Transcript EH-001-2017 Final argument Mr. Wheeler position that comprehensive federal involvement and community level engagement is required in all processes, projects, and decision making that may impact Indigenous peoples and nations, including considerations of Manitoba Hydro proposals to ensure that appropriate relationships are established and maintained, and obligations are being met.
8242. Current processes allowing for the use siloed process specific models, such as this hearing and to the MMTP, should not be used, and more holistic and robust models that focus on Manitoba Hydro’s entire integrated system as an interconnected whole, including international powerlines, must be employed.
8243. It is important to note that Manitoba Hydro explicitly uses this integrated system, including the MMTP should it be approved, to provide Hydro power and transmit it, unless its impacts must also be assessed and mitigated at this larger scale. The focus must be on system-wide environmental impacts, potential impacts on constitutionally protected Aboriginal and treaty rights, and cumulative and legacy impacts of entire systems on diminishing land bases.
8244. Part of the participation of Wa Ni Ska Tan in the hearing has included the submission of four export reports on a variety of topics relevant to this hearing and relevant to the decision before you.
8245. It is notable that three of those four experts are Indigenous, and one of those three has expertise not through formal university training, but through community based and lived experience. But this expert is an expert nonetheless, which must be recognized.
8246. I remind the Board that at Manitoba Hydro’s discretion, three of the four expert reports submitted by Wa Ni Ska Tan are on the record with no competing evidence, not addressed in Manitoba Hydro’s reply evidence, unchallenged on cross-examination, and unopposed.
8247. These are the reports of David Scott, Ramona Neckoway, and Aimee Craft.
8248. Therefore, the only inference that can be drawn from this is that their evidence is reliable and should be afforded high weight by the Board.
8249. The unopposed expert reports provide part of the basis upon which Wa Ni Ska Tan came to its position calling for a comprehensive federal review of
Transcript EH-001-2017 Final argument Mr. Wheeler Manitoba Hydro’s entire integrated system.
8250. Since its inception five years ago, Wa Ni Ska Tan has heard from and worked directly with many hundreds of locally affected Indigenous peoples throughout Manitoba Hydro’s integrated system, including elders, resource users, local harvesters, and community leaders who share common concerns relating to impacts and effects on their lands, livelihoods, and Aboriginal and treaty rights as a result of Manitoba Hydro presence in their respective territories.
8251. Wa Ni Ska Tan brought to the oral traditional evidence portion of this hearing, a panel of some of these male and female Indigenous elders, knowledge holders, and traditional harvesters from some of the communities that have been impacted by Manitoba Hydro development.
8252. Wa Ni Ska Tan arranged the OTE panel by seeking with and seeking guidance from community members involved with Wa Ni Ska Tan from across the province. And in a few minutes, I will be discussing that in greater detail.
8253. Wa Ni Ska Tan understands the proposed project before the Board.
8254. It is understood that Manitoba Hydro has applied for a Certificate of Public Convenience and Necessity for the MMTP alone.
8255. It is understood that the Manitoba Clean Environment Commission has already held a hearing into this project and has recommended that the Manitoba Minister of Sustainable Development issue a permit approving the project.
8256. It is understood that the provincial permit has not yet been issued and because the proposed line crosses an international boundary, the NEB is involved.
8257. It is also understood that the NEB is occasionally, but not often, involved in Manitoba Hydro projects. Manitoba Hydro has indicated that the purpose of the MMTP is to transmit surplus energy sourced from Manitoba Hydro’s integrated system to Minnesota to satisfy export contracts that have been signed, and to import energy from the U.S. to Manitoba when appropriate to do so.
8258. It is understood that the certificate being sought is only for the MMTP. However, Wa Ni Ska Tan and elders and community members with which Wa Ni Ska Tan has engaged, as well as its expert witnesses, due not view the MMTP in
Transcript EH-001-2017 Final argument Mr. Wheeler isolation. The MMTP is not just one project. The community members that comprise the core of Wa Ni Ska Tan have a long and very damaged relationship with Manitoba Hydro. The MMTP is the most recent proposal concerning Manitoba Hydro’s efforts at expanding its integrated system in Manitoba and it should not be viewed in a silo as an isolated project.
8259. While Manitoba Hydro has stated multiple times on the record that its intention is to establish relationships with Indigenous communities, and to listen to and mitigate their concerns, the members of Wa Ni Ska Tan do not see this relationship as being a positive or a credible relationship.
8260. Wa Ni Ska Tan sees that this hearing itself demonstrates how Manitoba Hydro effectively excludes Indigenous peoples while claiming an intention of inclusion.
8261. And as you know, pursuant to the NEB Act, the Board may, subject to the approval of the Governor in Council, issue a certificate in respect to an international powerline if the Board is satisfied that the line is and will be required by the present and future public convivence and necessity. We’ve heard this referred to as a public interest test.
8262. And as you also know, in deciding whether to issue a certificate, the Board shall have regard to all considerations that appeared to it to be directly related to the line and relevant. Thereby, of course the Board issued the list of issues set out for this project, including potential impacts of the project on Aboriginal interests and also including terms and conditions to be included in any approval the Board may issue.
8263. Also pursuant to subsection 4 of section 58.16 of the NEB Act:
“The Board shall, within the time limit specified by the Chairperson, [either] decide that the certificate should be issued […] or decide that no certificate is to be issued and dismiss the application in respect of the line.”
8264. In addition, as you know, the MMTP, as a designated project within the meaning of CEAA 2012, and the Board is, of course, the responsible authority to conduct and review this environmental assessment.
8265. I point you also then to the CEAA 2012, and specifically section
Transcript EH-001-2017 Final argument Mr. Wheeler 19(1):
“The environmental assessment of a designated project must take into account the following factors:
[...] the environmental effects of the designated project, including […] any cumulative environmental effects that are likely to result from the designated project in combination with other physical activities that have been or will be carried out;
[…]
[and also including] mitigation measures that are technically and economically feasible…”
8266. But also:
“The environmental assessment of a designated project may take into account community knowledge and Aboriginal traditional knowledge.”
8267. It is Wa Ni Ska Tan’s position that the Board should exercise its power pursuant to section 58.164(b) of the NEB Act and decide that no certificate should be issued and dismiss the application in respect of the line.
8268. Wa Ni Ska Tan submits that Manitoba Hydro has not made the case that the MMTP is in the public interest. Wa Ni Ska Tan has not been convinced that the project is required by the present and future public convivence and necessity. We will explain further how we came to that -- those conclusions, based on the record of the hearing.
8269. The federal government has conferred upon the NEB the authority to make this decision with respect to the MMTP. And Wa Ni Ska Tan understands that this decision will not be made lightly.
8270. Wa Ni Ska Tan hopes that the Board will consider the most pertinent evidence on the record of this hearing, the record which, of course, includes volumes and volumes of material. And Wa Ni Ska Tan hopes that the Board will come to the right decision.
Transcript EH-001-2017 Final argument Mr. Wheeler 8271. Now I’ll discuss treaties and our relationship to the land.
8272. We’ve heard since the third day of the oral portion of this hearing that the Board has acknowledged that this hearing has been held on Treaty 1 Territory and the homeland of the Métis Nation.
8273. We’ve also heard that the Board has acknowledged the history, spirituality, and culture of the Anishinaabe, Oji-Cree, Dakota, and Cree First Nations who continue to have relationships with this land today.
8274. The members of Wa Ni Ska Tan are very glad to hear Madam Chair express that acknowledgement as it is very important that those things are acknowledged, recognized, respected, and understood.
8275. We hope that the Board fully appreciates those relationships that the Board has continually acknowledged.
8276. There is an articulation of relationships entrenched in the treaties between the Crown and Indigenous peoples, including Treaty 1. The written text of Treaty 1 is one articulation of the relationship that was formalized in that treaty. And that is the fundamental basis upon which the Crown/Indigenous relationship was established upon the signing of Treaty 1 in this territory.
8277. In Wa Ni Ski Tan Information Request 1.3(b), we asked Manitoba Hydro to please provide a detailed explanation of Manitoba Hydro’s obligations and relationships encompassed in Treaty 1. In their response to that IR, Manitoba Hydro acknowledged that the numbered treaties in Manitoba are the cornerstone of the relationship between the First Nation signatories and the Crown. The number of treaties, including Treaty 1 relate to the traditional territories of the First Nation signatories to each of the treaties. The treaties also set forth the number of treaty rights that have been recognized and affirmed by section 35 of the Constitution Act 1982. The Manitoba-Minnesota Transmission Project runs through the traditional territories that are addressed in Treaty 1; and therefore, Treaty 1 is significant in relation to MMTP.
8278. Notably, Manitoba Hydro's response does not discuss obligations or relationships, though that was what we asked. What you have not heard Manitoba Hydro acknowledge is that Treaty 1 is about reciprocal relationships with corresponding responsibilities and obligations or an acknowledgement that Treaty 1 is an agreement to share. In Aimee Craft's expert report submitted by
Transcript EH-001-2017 Final argument Mr. Wheeler Wa Ni Ska Tan, Professor Craft explains, Treaty 1, also known as:
"The Stone Fort Treaty was negotiated in the summer of 1871 between the Crown and the Anishinaabe of the region that [is] now known as [part] of southern Manitoba."
8279. The courts have attempted to interpret and define treaties many times over. Through a series of cases that span over a few decades, the Supreme Court of Canada has developed principles for treaty interpretation and view treaties as unique agreements or a solemn exchange of promises made by the Crown and Indigenous peoples. The Supreme Court has found that treaties do not fit into international law boxes or regular contractual type arrangements.
8280. Treaties are sacred promises and the Crown's honour requires the Court, or in this case, the Board to assume that the Crown intended to fulfill its promises. In order to honour those sacred promises, ambiguities are to be resolved in favour of Indigenous peoples and Aboriginal understandings of words and corresponding legal concepts in Indian treaties are to be preferred over more legalistic and technical constructions.
8281. Legal duties such as the honour of the Crown and fiduciary obligations serve as protections to the solemn promises that were made as part of the treaties. Professor Craft then also tells us that:
"Historic Treaty relationships in Canada are founded in two distinct legal systems coming together to forge a relationship, particularly in relation to the terms of how to live well together within the same territory."
8282. Professor Craft also tells us that:
"Understanding the Treaty relationship and promises...requires that both Indigenous and non-Indigenous perspectives apply to the interpretation and implementation of Treaties."
8283. Understood in accordance with Anishinaabe law, treaties are jointly negotiated agreements between nations confirming promises to live in relationships of sharing, grounded in respect, renewal and reciprocity.
Transcript EH-001-2017 Final argument Mr. Wheeler 8284. Indigenous perspectives and oral histories are often met with strict legal interpretations of the treaties that picks up the language of cede, release, surrender and yield up; however, the Indigenous legal concepts articulated by the Anishinaabe of Treaty 1 show that surrender of land is not possible when one is made of the land or belongs to the land.
8285. Anishinaabe law tells us that land is not to be owned; rather, we are in a relationship of respect with the land with a sense of belonging to the land or being of the land. Non-Indigenous legal systems, however, are primarily based on ideas of land ownership and possession. The Anishinaabe concept is a relationship of connection to the land rather than possession of it.
8286. Professor Craft summarizes this section of her report by stating that:
"...the Anishinaabe understanding [of] Treaty One is that the land was not surrendered, but rather that there was an agreement to share in the bounty of and responsibility for the land."
8287. So while Madam Chair expresses an acknowledgement that this hearing has been held on Treaty 1 Territory and an acknowledgement of the history, spirituality and culture of peoples who continue to have relationships with this land, today, Wa Ni Ska Tan sincerely hopes that Professor Craft's expert report can help to ground an understanding of Treaty 1 and those relationships.
8288. One of the reasons that this is an important part of this hearing is because treaties are living documents. They are not relics of the past. They're about reciprocal relationships and renewal. They articulate rights, obligations and responsibilities which have since our agreement been constitutionally recognized and affirmed. An understanding and appreciation of the treaty relationship and the shared responsibility for the land must be central considerations before the Board in coming to your decision on the MMTP.
8289. And I'll also discuss the Natural Resources Transfer Agreement and Act, and this is also discussed in Professor Craft's expert report. To provide some context, in Manitoba, jurisdiction over natural resources was transferred from the federal government to the provinces in 1930. A clause was included in the NRTA to protect the right of Indians to harvesting for food throughout the year. Section 1 of the NRTA sets out that the transfer was concluded subject to any existing trusts. The treaty agreement to share in lands and resources is a trust that
Transcript EH-001-2017 Final argument Mr. Wheeler pre-dates the transfer of resources from the federal government to the provinces; and therefore, subjects any use of resources to that agreement to share in resources.
8290. Within the context of the MMTP, the NRTA is important for a number of reasons. First, the NRTA broadens the entire territory available to status Indians exercising their harvesting rights to the entirety of the province. Second, it allows for harvesting throughout the year unrestricted by seasonal hunting regulations. Third, harvesting is not restricted to unoccupied Crown lands or reserves, but rather includes other lands to which Indians may have a right of access.
8291. The right to harvest is met with corresponding obligations for the Crown to act honourably when it is allocating lands for purposes that may be incompatible with harvesting. Therefore, in considering the allocation of lands for the MMTP, which we have heard on the record in some instances may be incompatible with harvesting rights, the Board as an agent of the Crown must ensure that it is doing so honourably and considering this potential allocation while upholding the honour of the Crown.
8292. Professor Craft further explains that:
"By extending the rights of status 'Indians' to harvest throughout the province as a whole, Crown dispositions and development in any area of the Province may potentially impact any or all Indigenous people within the Province. For example, developments in the North may impact the harvesting rights of Nations in the South, and vice versa.
Further, given that harvesting rights may be exercised throughout the Province, it is possible that Indigenous people[s] who are not easily identified with the proposed development area are potentially impacted."
8293. The issue that this brings before the Board and for the Board's consideration is whether Indigenous peoples who may be impacted by the MMTP have been properly identified. And notably, Manitoba Hydro did not provide any notification of the MMTP to any Indigenous groups in the northern part of Manitoba.
Transcript EH-001-2017 Final argument Mr. Wheeler 8294. Now, in its letter of April 19th, 2018 to Peguis First Nation -- this is Exhibit A91387-1. In response to a letter from Peguis seeking clarification on consultation, the Board noted that:
"As part of its decision on the Project, the Board will assess the completeness of its process to ensure all potentially affected Aboriginal groups were identified, notified, and had a fair opportunity to make their concerns known to the Board."
8295. This excerpt from the Board's letter is directly in line with previous NEB decisions, such as Enbridge Line 10, wherein that project was approved after the Board had made the determination that all Aboriginal groups potentially affected had been provided with sufficient information.
8296. Wa Ni Ska Tan submits that the Board should find that many potentially affected and directly impacted Aboriginal groups from Northern Manitoba and other areas were not identified at any stage of the process as being potentially impacted by the project, were not notified of the project and its potential impacts on their treaty and Aboriginal rights, nor did they have a fair opportunity to make their concerns known to the Board at any stage of this or any other process.
8297. Wa Ni Ska Tan characterizes these omissions as fatal flaws in the completeness of the process for considering the MMTP. In addition, the Board should note that these omissions were entirely Manitoba Hydro's own.
8298. On June 19th, during the cross-examination of Manitoba Hydro from Wa Ni Ska Tan, you heard from Mr. Cormie that the vast majority of Manitoba Hydro's electrical energy is generated in the Northern Collector System and that once Keeyask comes online this will be even more true. You heard that to satisfy committed export contracts, increased generation in Northern Manitoba will be required. You heard from Mr. Cormie that to satisfy committed export contracts with Minnesota Power for energy that will flow through the MMTP, if it is approved, will require management of the dams on the Nelson River. You also heard that managing the dams on the Nelson River may alter water levels and water flow on the Nelson River.
8299. Mr. Cormie told you that Manitoba Hydro's arrangement with Minnesota Power and other utilities was linked to the construction of the Keeyask dam, and as well as the construction of a new interconnection.
Transcript EH-001-2017 Final argument Mr. Wheeler
8300. So there -- in Mr. Cormie's words,
"So there is a linkage between the increase in capability of our power system as a result of that new generating station and the system's ability to supply the electricity that's required under the contracts."
8301. In her expert report submitted by Wa Ni Ska Tan Professor Ramona Neckoway explains that understanding the breath of the system is important because it holds a hidden and painful history of the many Indigenous peoples who lie along its pathways.
8302. Wa Ni Ska Tan submits that the evidence with respect to water levels on the Nelson River and the linkage between Keeyask and committed export contracts is directly applicable to your decision with respect to the MMTP.
8303. Satisfying the committed export contracts may alter water flows and water levels on the Nelson River. If approved, one of the uses of the MMTP, of course, is to allow for the satisfaction of export contracts with the States. The altered water flow and altered water levels on the Nelson River have the potential to impact the Aboriginal and treaty rights of Indigenous peoples, including communities surrounding the Nelson River and the northern generating stations.
8304. This potential impact on Aboriginal and treaty rights has not been considered in this or any other hearing. And Wa Ni Ska Tan submits that this is another of the fatal flaws in this process.
8305. The potential impacts on Aboriginal and treaty rights are a direct result of the MMTP. But for the MMTP, these impacts would not occur. Or, as Mr. Cormie stated:
"There will be variations in water levels as a result of our new generating facilities and our new export contracts, because of the requirements of our contracts may not match what we would have done otherwise without the contracts."
8306. However, even though the MMTP may have a direct result on Aboriginal and treaty rights of Indigenous peoples in northern Manitoba, the communities in northern Manitoba were not informed about the project.
Transcript EH-001-2017 Final argument Mr. Wheeler
8307. And Manitoba Hydro also told you on cross-examination on June 18th that Manitoba Hydro is dependent on regulation of Lake Winnipeg for generation capacity for the project, but also that Manitoba Hydro is responsible for the regulation of Lake Winnipeg at the Jenpeg Generating Station on the Nelson River.
8308. In response to NEB Information Request 4.6(b), Manitoba Hydro noted that there is no process for a third party approving this generating capacity as referenced in the information request.
8309. Professor Neckoway also expressed in her export report that there can be little doubt that dams and the interconnected components of the integrated system sitting at our doorsteps and in our backyards, which are critical to Manitoba Hydro's vast and impressive network, including the labyrinth of transmission lines, affected and continued to impact entire generations of Indigenous peoples in Manitoba.
8310. Given that the MMTP may impact treaty rights to harvest and that the treaty right to harvest may be exercised anywhere in the province, the treaty right of Indigenous peoples living in the northern part of Manitoba, or anywhere else outside of the boundaries as established by Manitoba Hydro themselves, may be impacted by the MMTP, even though these communities are outside of the geographic scope of the project as determined by Manitoba Hydro. This has not been considered on the record of this hearing.
8311. In fact, in Ruling Number 4 -- and Wa Ni Ska Tan recognizes that on February 14th, 2018 the Board issued Ruling Number 4 in which, among other things, the Board noted that it did not intend to assess the environmental and socio-economic effects associated with upstream or downstream facilities associated with electricity production.
8312. The Board did not indicate that they would not assess potential impacts on Aboriginal and treaty rights. And on the contrary, it is the position of Wa Ni Ska Tan that the Board must consider these potential impacts.
8313. Since February 14th, 2018 Manitoba Hydro has cited Ruling Number 4 as the basis on which to exclude certain questions from multiple parties in this hearing, stating that information related to certain matters beyond the geographic scope of the project area as set out by Manitoba Hydro is beyond the scope of the
Transcript EH-001-2017 Final argument Mr. Wheeler hearing.
8314. However, the Board should note that since it began its engagement efforts with respect to the MMTP in 2015, long before Board Ruling Number 4, Manitoba Hydro has been mistakenly proceeding on the basis that only Treaty 1 First Nations will be impacted by the project.
8315. Wa Ni Ska Tan notes that potential impacts of the MMTP on Aboriginal and treaty rights were not considered in the hearings into Keeyask. And I'll say that again. Potential impacts of the MMTP on Aboriginal and treaty rights were not considered in the hearings into Keeyask, were not considered in the NFAT hearing before the Public Utilities Board, have not been appropriately assessed by any other competent agency.
8316. During the oral traditional evidence portion of this hearing you heard from Elders and traditional resources users from outside of the geographic scope of this project that do not agree with Manitoba Hydro's assertion that because they are from outside of the project areas defined by Manitoba Hydro they will not be impacted by the MMTP.
8317. The OTE presentations that were shared on behalf of Wa Ni Ska Tan spoke for themselves. And we implore the Panel to please review the transcripts to consider the entirety of the important information that was respectfully shared with you in the holistic spirit in which it was shared.
8318. We thank the Board for allowing these presentations against the objection of Manitoba Hydro. Summaries do not have the power of the people themselves. However, I will highlight some of the important information that was shared.
8319. Mr. Travis Bird from Swan Lake First Nation worked on the Bipole III construction as an environmental monitor. He shared information about construction continuing after the finding of unidentified bone fragments and damage from trucks that were used when the ground was frozen. Travis also spoke about noting duck habitats and coming back to find it destroyed. And he shared that when or if the MMTP Line should go ahead, we need to look at the littler things on the ground, the bugs, the birds, the animals that lived there before we lived there. He said he would like to see more eyes on the ground for people like himself to open other people's eyes. And he was an environmental monitor on Bipole III.
Transcript EH-001-2017 Final argument Mr. Wheeler
8320. Elder Joyce McKenny from -- I may say this wrong, but Ga Bioke Ga Maug Nation, now called Swan Lake First Nation, shared with you that, "We have relatives all over, and we have friends in the northern communities where we see a lot of destruction by corporations like Manitoba Hydro." Elder Joyce shared with you that she used to travel with her grandma picking roots, herbs and making medicines to heal people. She said, "You don't just get one root to make a medicine. Sometimes it takes 100 plants, which are spread all over the country." So she said that they used to trade with Sagkeeng, with Berens River for some of the certain plants they have in their area that we needed to make something in the south.
8321. Elder Joyce also shared with you that:
"We've had a lifetime of hope that things will get better. I don't know how much longer that hope is going to last. Are we going to give up? Are the corporations too powerful to make any lasting changes? How long are we going to let them destroy our land?"
8322. Mr. Les Dysart described himself as a hunter, a fisher and trapper from South Indian Lake, which is a reservoir that helps power the generating stations on the Nelson River, and which has been devastated by the Churchill River diversion. Les succinctly put it that the connection to the MMTP and South Indian Lake is water equals power equals transmission.
8323. Les shared with you about the impacts of hydro development on him, his family and his community. He told you about the death of an environment, death of a fish population, death of a once thriving economy and death of a healthy community at a huge human and social cost. In Mr. Dysart's view, Manitoba Hydro is addicted to dams and drunk on water.
8324. Ms. Carol Kobliski from Nisichawayasihk Cree Nation shared with you that among other impacts from hydro development she's been impacted by the Churchill River diversion and by Wuskwatim, and explained that in one way or another, we're all connected, because without water there's no power. Carol told you that, "Because of what Hydro has done, our water, our lands continue to erode." She also shared that, "It's affecting not only us as human beings, but the animals as well. The land, the water, everything is being affected, and we can't turn a blind eye to it."
Transcript EH-001-2017 Final argument Mr. Wheeler
8325. Carol shared that, "We're tampering with all this stuff to meet the needs of these corporations." And said, "I feel what the south feels. Even though I'm from up north I feel it. I feel what our neighbours are going through, how they're impacted."
8326. The next presenter on the Wa Ni Ska Tan OTE panel was Mr. Tommy Monias from Pimicikamak Cree Nation. Tommy shared with you that, "We are of this country and your representatives from England or from France made treaties with us as nation to nation people. Manitoba Hydro is not a nation. It's a corporate entity," he said.
8327. He said, "We're supposed to live as nation to nation relationships, but that's all gone." He shared that, "Basically, Manitoba Hydro just bullies through the system because Canada's laws give them the power to do that." Stating that, "They make decisions before they come to us. That's called bullying."
8328. Tommy shared, "Where does the energy come from? It comes from our territory. Dams lining up our rivers to generate energy for the south. We pay the price. We pay the price of our people dying out there. We pay the price of our Aboriginal opportunities being exterminated because the environment is a mess, an ecological nightmare turned upside down."
8329. Finally, Mr. Gerald McKay from Misipawistik Cree Nation shared with you part of his story of the impacts of Hydro development on him, his family, and his community. He shared with you about childhood trauma, growing up close to the Grand Rapids Generating Station when it was being built and the racism his family felt from Manitoba Hydro and the Hydro workers and how the land that had been used by his family had been flooded for the dam.
8330. Gerald shared with you a traumatic story of his baby sister almost being kidnapped and his mother living in fear and nailing the windows of their home shut. Gerald shared about gravesites that were destroyed. He shared that:
"…when I think about how unfair these agreements are that we get nothing and it's all exported […] it's the people of the south that benefit, not the people of the north […] all these communities are far apart, but we all have the same issues."
8331. Gerald said:
Transcript EH-001-2017 Final argument Mr. Wheeler
"…it's us that sacrificed our land and our rivers and our fishing and our trapping."
8332. Professor Ramona Neckoway, also from Misipawistik Cree Nation then shared some brief information with you. Ramona said:
"In my opinion, we’re not looking at a complete map here. We’re not looking at the integrated system completely because there’s this whole -- there’s a big story missing north of Dorsey there."
8333. We implore the Board to assign an appropriately high degree of weight to the information that was shared by representatives of Wa Ni Ska Tan through the OTE portion of this hearing. It is important to note that these participants travelled many thousands of kilometres to share their experiences and concerns with the Board.
8334. The information they shared with you was certainly relevant. The information shared with you was about relationships and damaged relationships. You heard that Manitoba Hydro has devastated communities near Grand Rapids, near Jenpeg, near Wuskwatim as a result of the augmented flow program and the Churchill River Diversion, devastated communities at South Indian Lake.
8335. These communities will never be the same, and while we cannot turn back the clock and right the wrongs that have been done, we can learn from them.
8336. In her expert report submitted by Wa Ni Ska Tan, Professor Neckoway provides that:
"Telling the wider story relating to the production of hydroelectricity in Manitoba, and contemplating telling this story […] in public forums and formats, has been agonizing because of the common narratives of displacement, disruption, and similarities in narratives of pain encountered by those who watched the waters rise and shorelines erode."
8337. We can learn that the needs of the south do not outweigh the needs of the north. We can learn that there are very real and deplorable impacts on people and communities as a result of Hydro development and that the people directly
Transcript EH-001-2017 Final argument Mr. Wheeler affected know best what those effects have been.
8338. As you know, Manitoba Hydro objected to these voices being included in this hearing, deeming them irrelevant. You have heard that the National Energy Board and other regulatory processes are intimidating. I'm sure you can probably take judicial notice of that. Being deemed irrelevant by a proponent certainly does not alleviate any of that intimidation. In fact, it is something, in the powerful and insightful words of Tommy Monias, that a bully would do.
8339. And while the OTE panel members of Wa Ni Ska Tan were willing to share information with the Board and with Manitoba Hydro, Manitoba Hydro has not been as forthcoming about sharing information with respect to the MMTP.
8340. Again, we note that the Board has stated that as part of its decision on the project, the Board will assess the completeness of its process to ensure all potentially affected Aboriginal groups were identified and notified.
8341. On June 19th during the cross-examination of Manitoba Hydro from Wa Ni Ska Tan, you heard that the list of communities that received information packages about the project were chosen by Manitoba Hydro based on a list of criteria developed in house by Manitoba Hydro, with even the criteria based on factors that were developed on in house by Manitoba Hydro. Manitoba Hydro chose for themselves who should receive information about the project. Yes, Manitoba Hydro also made information available to the general public through newspapers and the internet; however, this does not consider isolated and remote communities, some of which do not have available the means to access this information.
8342. We remind the Board that unfortunately, the internet is not yet universally accessible and we noted this in our comment letter submitted on the draft conditions of the Board and CEC recommendations with respect to the project.
8343. Manitoba Hydro has also told you time and time again during this hearing that they have intended to be inclusive throughout this project. They have said that their intent was not to be exclusionary. However, you heard on cross- examination that Manitoba Hydro agreed that without information being shared, engagement cannot occur. And Manitoba Hydro chose not to share information with groups outside of the project boundaries that they chose themselves.
Transcript EH-001-2017 Final argument Mr. Wheeler 8344. Wa Ni Ska Tan submits that the Board should consider whether it is appropriate for Manitoba Hydro themselves to determine which First Nations may have interests or concerns related to the project. Wa Ni Ska Tan submits that the Board should consider whether it is appropriate for Manitoba Hydro themselves to determine who should be engaged.
8345. Wa Ni Ska Tan submits that First Nations must be given notice, information, and an opportunity to engage as they decide for themselves is appropriate. Self-determining nations and peoples must have the opportunity to decide for themselves whether they want to engage in a decision-making process.
8346. Manitoba Hydro told you during cross-examination that interests and concerns, as they relate to the project, absolutely we would need to share project information first. It is recognized by Manitoba Hydro that all other engagement flows directly from the sharing of information, yet you also heard that Manitoba Hydro initially engaged with 11 of the 63 First Nations in Manitoba.
8347. After being directed by the Board, Manitoba Hydro then shared information packages with additional First Nations that Manitoba Hydro had not identified as being potentially impacted by the project.
8348. Wa Ni Ska Tan notes that contrary to Manitoba Hydro's presumption that First Nations beyond those they had identified were not interested in the project, after receiving notification and information about the project at the Board's behest, three of the seven First Nations notified late in the process filed applications to participate in the hearing. This does not sound like groups that don't want to engage.
8349. This is indicative of the distinct possibility that if information had been supplied, parties may have chosen to intervene. However, this is, of course, speculative and hypothetical as Manitoba Hydro did not share information with other groups. However, based on Wa Ni Ska Tan's many years of engagement with communities that are active members of Wa Ni Ska Tan, many of these excluded communities would indeed have chosen to file applications had they been notified of the project.
8350. It is clear that Manitoba Hydro did not develop an exhaustive list of potentially impacted or interested First Nations. Representatives of Wa Ni Ska Tan including those from the south and the north of the province have shared with you that they feel that northern communities including northern First Nations will
Transcript EH-001-2017 Final argument Mr. Wheeler be impacted by Manitoba Hydro's proposed Manitoba Minnesota Transmission Project.
8351. You have also heard that northern communities including northern First Nations have not been consulted about this project. As you know, no information was shared with northern communities and no engagement took place "outside of the project area".
8352. Wa Ni Ska Tan submits that this effective exclusion is a result of the siloed project-specific approach to licensing Manitoba Hydro. '
8353. You have heard from people that feel they will be impacted by the MMTP but have not been engaged by Manitoba Hydro. Not only have they not been engaged meaningfully, they have not been engaged at all. People that feel that their rights will be impacted have not been engaged at all.
8354. However, we have also heard time and time again that Manitoba Hydro operates an integrated system. We have heard that the vast majority of the energy generated to satisfy Manitoba Hydro's export contracts with Minnesota will be sourced from northern generating stations.
8355. Manitoba Hydro has been speaking out of two sides of their mouth, so to speak. On one hand, they acknowledge that they operate an integrated system, on the other hand, refuse to acknowledge that each project has a cumulative impact on each portion of the integrated system and the system as a whole.
8356. You have also heard that the First Nations and Métis Engagement Program informed the project, including the environmental assessment conducted by Manitoba Hydro.
8357. You have heard that the environmental assessment for the project was conducted using a valued components approach. You heard that in the Bipole III assessment, 67 valued components were considered, including some that were species specific.
8358. You have also heard that the environmental assessment for the MMTP included 12 valued components and that these were broad umbrella categories of valued components with no species-specific valued components.
8359. This approach ignores a world view in which people often feel that
Transcript EH-001-2017 Final argument Mr. Wheeler they have an ethical responsibility to protect specific species as stewards. Throughout the hearing, many parties raised concerns about an approach that did not consider individual species. Manitoba Hydro indicated on cross-examination that in the event a community raised a concern about potential impacts on a specific species that this concern would be included with concerns about other species under the same broad scope.
8360. Manitoba Hydro referred to this high-level approach to environmental assessment as having more inclusive valued components, and Manitoba Hydro stated their belief that this approach better captures concepts that include that interconnectedness between species and species assemblages, which Manitoba Hydro indicated makes sense for biophysical species.
8361. Manitoba Hydro even claims that their approach may better align with -- pardon me. In Manitoba Hydro's responses to Sagkeeng Anishinaabe's IR 1.19(d) following Sagkeeng's motion to compel further responses to information requests, Manitoba Hydro indicated that the decision to take an approach to effects assessment that included higher level VCs rather than individual species was done in part to be inclusive of all views and communities and integrate different kinds of knowledge, rather than fragmenting information into species- specific silos.
8362. In his expert report, Death by a Thousand Dams, submitted by Wa Ni Ska Tan in this hearing, Dr. Stephane McLachlan recommended that rather than seeing these as mutually exclusive approaches, more inclusive culturally appropriate and effective approaches to identifying any and all VCs should be adopted.
8363. Wa Ni Ska Tan adopts this recommendation and submits that the Board should find that Manitoba Hydro's choice of valued components was insufficient. Manitoba Hydro should consider this recommendation for environmental assessments going forward.
8364. Wa Ni Ska Tan submits that the broad valued components approach employed by Manitoba Hydro does not properly consider much of the important information about potential impacts to specific species important to many Indigenous groups. And, therefore, the Board should find that this approach is inadequate for the purposes of avoiding, mitigating or measuring impacts to specific species.
Transcript EH-001-2017 Final argument Mr. Wheeler 8365. Wa Ni Ska Tan notes that when determining a list of valued components for environmental assessment, Manitoba Hydro does not want to fragment information into species-specific silos.
8366. However, when considering whether to licence or issue a certificate for a proposed Manitoba Hydro development, then Manitoba Hydro finds it convenient to fragment information about the integrated Manitoba Hydro system into project-specific silos.
8367. When it suits Manitoba Hydro, Manitoba Hydro prefers decisions to be made in silos. But when it does not suit Manitoba Hydro, Manitoba Hydro prefers a siloed approach to decisions.
8368. Wa Ni Ska Tan submits that Manitoba Hydro cannot suck and blow at the same time. You've heard that to date Manitoba Hydro's environmental monitoring plan for the MMTP exists in draft form only. In his expert report Dr. McLachlan noted that the draft environmental monitoring plan is highly inadequate as presented and appears to only address concerns of Manitoba Hydro, rather than those of other stakeholders and Indigenous communities.
8369. Dr. McLachlan recommends that a more collaborative or more transformative approach be taken with respect to monitoring that includes sustained Indigenous involvement that will be more sensitive to adverse impacts, especially those experienced by other stakeholders and Indigenous groups.
8370. Wa Ni Ska Tan adopts this recommendation. And although we note that the Indigenous monitoring committee was discussed at length on the record of this hearing, Wa Ni Ska Tan also notes that Manitoba Hydro has indicated that the intent of Manitoba Hydro is that this committee will not include any technical experts.
8371. On cross-examination on June 18th, Ms. Coughlin told you that:
"If we get to a point where the happenings of the committee are only understood by technical consultants, it would miss the point of having the committee. The point is to make sure that we're covering and discussing -- that what we're covering and discussing at the committee is understood by those present, those members of the community. So I hope we're not supporting a committee that would only be understood by those
Transcript EH-001-2017 Final argument Mr. Wheeler with PhDs. That's not the intent."
8372. Wa Ni Ska Tan submits that these do not have to be mutually exclusive approaches. The Board should find that a collaborative and cross- cultural approach must be taken that includes technical expertise on the monitoring committee, with plain language documents generated so that important and possibly technical monitoring information is effectively captured.
8373. Experiences on the part of the OTE presenters and those documented in Dr. McLachlan's report indicate that mitigation was often inadequate with respect to heritage sites, riparian habitat and traditional use plants and animals, and further often went undocumented by Manitoba Hydro on previous projects.
8374. Wa Ni Ska Tan thus adopts the recommendation by Dr. McLachlan and submits that the Board should also find that there should be independent evaluation of both impacts and mitigation activities involving scientists and Indigenous communities, which will ultimately generate better understandings about the nature of residual effects, adequate compliance and more effective mitigation in the MMTP, which is an approach Manitoba Hydro should also adopt going forward in future projects.
8375. Of course, that is also only a condition, should the project be approved, that we would suggest.
8376. You have heard very clearly throughout the hearing that many communities are concerned about herbicide related contaminants in water and in traditional use plants, owing to Manitoba Hydro's effective exclusion of Indigenous peoples outside of the boundaries of the project. The treaty right to practise traditional pursuits throughout the province has not been properly considered.
8377. Manitoba Hydro has refused to commit to not using herbicides in the project area. Wa Ni Ska Tan submits that it has been demonstrated on the record given that country food may be impacted by herbicide use, that people that rely on country foods may be less likely to consume these products, even if they are seen as even possibly being contaminated. You've heard Manitoba Hydro refer to this as a diminished preference.
8378. In Chapter 18 of the EIS for the project it states that,
Transcript EH-001-2017 Final argument Mr. Wheeler "Country food quality related to herbicide use is a potential project-related effect that would affect human health risk."
8379. When asked on cross-examination whether Manitoba Hydro could avoid herbicides entirely by other forms of vegetation management, Mr. Matthewson replied that:
"Other forms of vegetation management are possible, but may not be feasible or desirable based on the management outcome for that right-of-way for managing the vegetation and the habitat that is trying to be created."
8380. Wa Ni Ska Tan submits that the Board should find that the decline in consumption of country foods as a result of herbicides and the associated health risk is an unacceptable risk to human health. And Wa Ni Ska Tan recommends that in the event this project is approved, the Board include a condition that herbicides should not be used, and other possible, but perhaps not desirable to Manitoba Hydro, vegetation management plans should be employed.
8381. It is further noted that the use of alternative forms of vegetation management could result in additional employment opportunities for Indigenous communities.
8382. Based on the record, Wa Ni Ska Tan has not found that Manitoba Hydro has demonstrated the need for the project. Wa Ni Ska Tan submits that the focus of Manitoba Hydro throughout this hearing has been on whether Manitoba Hydro needs the project. Wa Ni Ska Tan has not been convinced that the public needs the project or that the significant detriments to the public that may arise from the project outweigh the benefits of the project.
8383. David Scott expressed in his expert report submitted by Wa Ni Ska Tan that the profitability of Manitoba Hydro cannot take precedence over other considerations, including Indigenous interests. Based on the record, Wa Ni Ska Tan has not found that the potential environmental and socio-economic effects of the project, including those to be considered under CEAA 2012, have been appropriately canvassed in a robust and collaborative manner engaging western scientists and Indigenous experts.
8384. Based on the record, Wa Ni Ska Tan has not found that the potential impacts of the project on Aboriginal interests have been appropriately canvassed
Transcript EH-001-2017 Final argument Mr. Wheeler and considered. Manitoba Hydro has made the determinations at every step of the process, including the determination about which Aboriginal interests are relevant.
8385. Wa Ni Ska Tan has already shared with the Board, Manitoba Hydro, and the other parties to this proceeding, comments on the draft conditions and CEC recommendations that should be included in the event this project is approved by the Board.
8386. As we are under time constraints for our final argument, we respectfully implore the Board to revisit that comment letter and to give deep and meaningful consideration to those comments.
8387. Wa Ni Ska Tan submits that the Board should find that communities, including Indigenous communities surrounding Manitoba Hydro's generating facilities, have an interest in the project and are directly impacted as increased generation requirements to satisfy Manitoba Hydro's export contracts with Minnesota will result in impacts to those communities.
8388. Wa Ni Ska Tan also submits that the Board should find that Manitoba Hydro failed to notify or engage with many directly impacted communities. As such, while the Board indicated that the Board did not intend to assess the environmental and socio-economic effects associated with upstream or downstream facilities, Wa Ni Ska Tan submits that the Board must consider potential impacts to Aboriginal and treaty rights associated with upstream and downstream facilities.
8389. In her expert report, Professor Neckoway expressed regulators at all levels of decision making, including the federal government, owe it to those generations of Indigenous peoples affected by the operation of the integrated system to look more comprehensively and cumulatively at the relationships and interconnectedness of the waters and waterways and production of hydroelectricity, including the transmission network.
8390. Wa Ni Ska Tan submits that the current process allowing for the use of siloed project-specific models is insufficient for considering both the environmental and the Aboriginal and treaty rights impacts to the land and the many communities affected.
8391. In the event a certificate is issued for the project, the Board should
Transcript EH-001-2017 Final argument Mr. Wheeler include a condition to which Manitoba Hydro must comply, that Manitoba Hydro must be subject to a holistic and robust consideration by the NEB, or an appropriate authority so mandated by the federal government, of the impacts of Manitoba Hydro's entire system as an interconnected whole. Such a review must have the authority and capacity to recommend changes to the operation of the system, changes to the regimes of monitoring, compensating and mitigating the impacts of the operations, as well as changes to the manner in which river and lake rehabilitation are planned and managed.
8392. And Wa Ni Ska Tan hopes that the Board has come to the same conclusions as Wa Ni Ska Tan and thus decides that no certificate should be issued and dismisses the application in respect of the MMTP.
8393. We have heard many times from Manitoba Hydro that routing has been its most effective mitigation strategy with respect to concerns raised about the MMTP. Wa Ni Ska Tan suggests that the most effective mitigation strategy would be to not build the MMTP at all.
8394. Subject to any questions, those are the submissions of Wa Ni Ska Tan.
--- (A short pause/Courte pause)
8395. THE CHAIRPERSON: Dr. Lytle has a question, and then I may have a question.
8396. MEMBER LYTLE: I'll try and articulate this as clearly as I can because it's -- there's an uncertainty in my mind. I'd be very interested in your views on joint responsibility for notification in the sense that is there a responsibility for what I'll call super local groups that have been notified about an event that may have an impact on their -- the people that belong to that group in letting those people know and letting the project proponent, in this case Manitoba Hydro know, that there may be an issue, go talk to these people as well?
8397. And obviously, I'm thinking of groups like the Assembly of First Nations, who I understand were informed -- or sorry, the Manitoba Assembly of First Nations, who it's my understanding were informed early on, and it's unclear in my mind whether they also have a responsibility to feedback to both the affected party and the proponent, in this case again, Manitoba Hydro, so that it facilitates in a more effective, if you want it, a more broad reaching notification program so that it's a more facilitated process, I guess. I'm not sure if I've
Transcript EH-001-2017 Final argument Mr. Wheeler articulated that clearly enough that you can respond to it.
8398. MR. WHEELER: I believe I understood the question.
8399. THE CHAIRPERSON: If it might help. There was one -- there were a couple of examples that Ms. Coughlin referred to where First Nations who were on the original list identified other First Nations that were not whom they were aware exercised traditional rights within the first or Treaty 1 Territory.
8400. MR. WHEELER: At the outset, I would suggest that the onus is on the proponent to ensure that the proper folks had been engaged. Have -- at the very least had information shared with them so that those folks could make their own informed decision because I think that that's what it's about is informed decisions.
8401. Now, I don't know whether I can surmise as to why the Assembly of Manitoba Chiefs would have maybe not shared information, I can't make that determination, that would be for them to do. I don't -- I can say that I don't think that the -- and I asked some questions of Ms. Coughlin about this as well, about whether the onus is on First Nations to make sure for themselves that they know everything that's going on. And I didn't go that far into that question.
8402. But that is the point, that there are so many projects that are coming and so many meeting requests and so many topics of discussion that to assume that a First Nation should know for themselves all the time I think is -- it's unwieldy, but at the same then to your question about whether organizations have an onus to make sure that they share information, I think that those organizations choose for themselves which information they're going to share and with who, and I don't think that it's necessarily their responsibility to make sure that everybody is aware of everything.
8403. They can't -- they're not rights bearing nations either, and so they can't decide for somebody else for an independent First Nation whether that independent First Nation should be engaged. Now, they may have some information about whether they practise traditional -- or exercises traditional practices in the project area, however, I think it ultimately comes down to the fact that a proponent needs to ensure that the proper folks are engaged. I don't think that that's anybody else's responsibility. I don't think -- I don't see that there is a shared responsibility on a group that may have some of those First Nations as some of their members.
Transcript EH-001-2017 Final argument Mr. Wheeler
8404. THE CHAIRPERSON: I wonder if you could help me with something else, and it's -- and I'm asking because I don't know; I haven't formed an opinion. But I am -- I'm looking at a quote from the Ktunaxa First Nation Spirit Bear case, and it's a summary by the majority of the law coming from Haida with respect to the duty to consult.
8405. And there's a statement in there -- and I'll preface this with -- the fact of the matter is here we're dealing with Treaty 1, which is a well-defined territory.
8406. MR. WHEELER: Geographic boundaries.
8407. THE CHAIRPERSON: Geographic territory, which in western law is easily identifiable and easy to work with, but then we have many other things which are different. There are Aboriginal rights and there are traditional land uses, which are less well defined.
8408. And the Court in that case seemed to have said that:
"The duty to consult and, if appropriate, accommodate Aboriginal interests may require the alteration of a proposed development. However, it does not give Aboriginal groups a veto over developments pending proof of their claims. Consent is required only for proven claims, and even then, only in certain cases. What is required is a balancing of interests, a process of give and take."
8409. And that's at paragraph 82 of the Decision. It's the last bullet point in a series of summaries that the Court is offering off the Haida case.
8410. And I wonder if you have any advice for us about that statement about how we treat different rights. You know, we have a defined territorial right in Treaty 1. And we have Aboriginal rights which are different. and we have the statement from the Court saying that consent is required in certain cases.
8411. I just wondered if you have any advice for us about this kind of parsing, if I can call it that?
8412. MR. WHEELER: Well, first what I’ll respond to is our comment about how in western law, the boundaries are easily defined and easily identified
Transcript EH-001-2017 Final argument Mr. Wheeler who may be impacted. Now ---
8413. THE CHAIRPERSON: Maybe just understood.
8414. MR. WHEELER: Right. And first off, I don’t think it’s about doing things that are easy. I think that it’s about doing things properly. And I think that it’s about recognizing that the relationships matter, that the relationship between different groups all matters.
8415. And now, to what may have been three or four questions into your question. First off, whether I would expect that -- I would not suggest that there’s a veto right on anybody that’s being defined and debated as Canada and Manitoba consider how to best implement the United Nations Declaration on the Rights of Indigenous Peoples and the Requirement for Free, Prior and Informed Consent.
8416. Now, I don’t know that I’m well suited to make that determination of how best a veto right and a requirement for consent are two different things. I’m grappling with that myself right now.
8417. And so now the question of whether -- how to deal with unproven claims, I think really, it’s about -- I think that it’s about making sure that we’re not identifying every single -- okay. Let me try to articulate an answer here for you.
8418. I think what is best done here is to allow groups to choose for themselves if they want to be involved. I think that especially in the case of Manitoba Hydro, that there are 63 First Nations in Manitoba; it’s not really all that fundamentally difficult to share project information and allow different First Nations to choose for themselves if they would like to be involved. I don’t think that that’s a difficult proposition to put on the table.
8419. Now, I also -- I don’t know that I could say what’s the best way to make sure that nobody’s being missed, which I think is sort of the crux, right? Somebody could say, well we have a claim there, we should be involved.
8420. I think that it’s not about measuring those claims; it’s about self- determination and about ensuring that people can decide for themselves how they want to be engaged. I think that if a group believes that they are potentially impacted by a project, I think that those potential impacts have to be included in the determination of how best to deal with that project. I think that it’s -- at it’s
Transcript EH-001-2017 Final argument Mr. Wheeler base level, it’s all about ensuring that people -- or, pardon me, communities decide if they think that they are involved.
8421. And if -- and as Manitoba Hydro said on cross-examination, they don’t measure whether these claims to treaty rights, or claimed Aboriginal rights, whether they exist. They said that if it’s asserted by somebody, they take it as though it does exist, and they operate on that assumption.
8422. So I think that realistically, it’s all just about sharing information with people in the spirit of a relationship. In the spirit of, “We are in a relationship together; I will recognize that this relationship exists. And in that -- under that framework, I will operate as though I have obligations to you, and I have responsibilities to you.” And vice versa. It goes both ways.
8423. So honestly, I think that that’s really what it all comes down to.
8424. I hope I answered your question, fumbling through.
8425. THE CHAIRPERSON: Not at all, not at all. Thank you. You have ---
8426. MR. WHEELER: No, I haven’t answered the question?
8427. THE CHAIRPERSON: No, no. you’ve not fumbled through anything.
8428. But thank you. Thank you, you have been helpful.
8429. MR. WHEELER: Thank you.
8430. THE CHAIRPERSON: Thank you, Mr. Wheeler.
8431. MR. WHEELER: Thank you, Madam Chair, Panel Members.
8432. THE CHAIRPERSON: I see Ms. Winterburn has stepped forward.
8433. MS. WINTERBURN: Hello. I’m just asking for the Court’s -- the Panel’s indulgence.
Transcript EH-001-2017 Motion by Manitoba Métis Federation 8434. This morning you asked a number of questions from my friend, Mr. Shefman, in response to his submissions. And these questions, I think as he rightly pointed out, raise a number of issues that are cross-cutting across all of the -- and raised interests for all of the intervenors and I would like to take a moment, if I could, with the Panel’s indulgence, to raise two brief points in response to your questions and also request the opportunity to provide brief written submissions as well.
8435. THE CHAIRPERSON: I’ll ask Manitoba Hydro if they have a view on this.
8436. MR. BRENDEN HUNTER: Madam Chair, Manitoba Hydro doesn’t have any objection to my friend making a couple comments this morning, but we wouldn’t think it appropriate to be a further written process. If she’s got something to say, she should say it now.
8437. We are mindful of the fact that our reply argument’s due on Monday.
8438. MS. WINTERBURN: Madam Chair, if I may. Thank you to my friend from Manitoba Hydro.
8439. And I am prepared to speak to two very brief points today, accounting of the time. But I would just like to draw the Panel’s attention to the fact that there are many other intervenors who are not here, who are not present, who may have an interest in this as well.
8440. So I would like to reiterate our request to provide written submissions. Very brief ones, not only for MMF but on behalf of other intervenors who are not here and able to speak to this today.
8441. THE CHAIRPERSON: I appreciate you bringing that forward, but that does mean that our record would remain open and Manitoba Hydro’s response would be delayed.
8442. And I do note that the letter has been on file since April.
8443. MR. BRENDEN HUNTER: And I’m struggling to understand, Madam Chair, what new issue arose in your discourse with Mr. Shefman this morning that the parties haven’t been aware of for the entirety of this proceeding.
Transcript EH-001-2017 Motion by Manitoba Métis Federation 8444. MR. SHEFMAN: If I may, Madam Chair, I think the new issue that arose quite clear is that the Panel expressed some interest in a discrete question within the material -- yes, the question of compensation has been sort of floating in the ether throughout, but as a discrete legal issue, as you rightly acknowledged, Madam Chair, it is, you know, some what precedent setting as an argument. And it is a matter of importance, not just to the people in this room and to the intervenors who are not in the room, but frankly to the public interest.
8445. And it would, I think, benefit the Panel to accept, I don’t know off the top of my head, five pages of submissions from each intervenor, as well as reply submissions on that discrete point of law from Manitoba Hydro.
8446. THE CHAIRPERSON: Sorry. Mr. Hunter, you had something further? Go ahead.
8447. MR. BRENDEN HUNTER: I was just waiting for the ruling, Madam Chair.
8448. THE CHAIRPERSON: We have -- we did raise an issue this morning, but frankly I’m not convinced that it’s a novel issue. It’s a question of something that I think has been speaking to us since the Clyde River decision, and while I will hear Ms. Winterbaum -- burn -- sorry, and you can correct me in my pronunciation when you get to the podium, but we'll hear your points. But at this stage, I'm not convinced that there's anything novel, particularly, in the arguments, they could have been anticipated.
8449. And indeed, Mr. Shefman put a very vigorous argument forward this morning about why we should do it, and I have to assume in the course of doing that he was looking at all the relevant authorities, and I'm not sure that we'll really be enlightened by that much more argument. And in fairness, I think we would have to open the record again for Manitoba Hydro at that point. I'm not sure that's in anyone's interest at this stage, because they would want to reply to all those five pages.
--- (Laughter/Rires)
8450. THE CHAIRPERSON: I can anticipate that. So I'll let Ms. Winterburn proceed with her comments, and Manitoba Hydro can reply to that.
Transcript EH-001-2017 Submissions Ms. Winterburn
--- SUBMISSIONS BY/REPRÉSENTATIONS PAR MS. WINTERBURN:
8451. MS. WINTERBURN: Well, thank you for your indulgence, and in the interest of time, I will be brief.
8452. So the MMF would like to make two points regarding the topics that came up this morning. So the first is we would like to echo our friend's comments that the Board has the authority to consider these issues. It must act consistent with the Constitution, it is a constitutional imperative that the duty to consult be fulfilled. In Rio Tinto, the Supreme Court of Canada said it must be met, and that is before you. So that is our first point.
8453. Secondly, we would like to just highlight one of the questions that you, yourself asked, Madam Chair, which is the fact that the Governor in Council is the one who will make the ultimate decisionmaker. This Panel will be making recommendations to the Governor in Council about what to do and what conditions to attach to the project.
8454. So as part of that, we'd like to point you to Chippewas, paragraph 32, which it says that:
"...the Crown may rely on [the] steps taken by an administrative body to fulfill its duty to consult. The Crown may rely on a regulatory agency in this way so long as the agency possesses the statutory powers to do what the duty to consult requires..."
8455. And as already noted, the MMF's position is that you have this authority and capacity.
8456. So -- however, the Court in Chippewas went on to say:
"...if the agency’s statutory powers are insufficient..."
8457. I'm sorry, this is also in paragraph 32:
"...if the agency's...powers are insufficient in the circumstances or if the agency does not provide adequate consultation and accommodation, the Crown must provide further avenues for
Transcript EH-001-2017 Submissions Ms. Winterburn meaningful consultation and accommodation in order to fulfill the duty prior to project approval."
8458. And we say this is very significant in this context here, where it's the Panel's job to make recommendations to the Governor in Council, who is the ultimate decision maker in the project. The buck stops with the Crown.
8459. And I think that this goes to the point of, Madam Chair, your comments when you brought up the letter earlier, and I'm sorry I don't have the exact reference for it, but where it says that:
"The government understands that the NEB has, one, the legal capacity to conduct consultations." (As read)
8460. Which we would agree with:
"Two, is the best place to consider the potential impacts of projects on Indigenous rights." (As read)
8461. Which we would also agree with. But then Minister Carr went on to say:
"...and has the authority to address most of such impacts." (As read)
8462. And this is something that you, yourself, Madam Chair, highlighted. The language of "most of". And we would say when you read that, in combination with Chippewas, paragraph 32, which holds that:
"The Crown must provide further avenues for meaningful consultation and accommodation in order to fulfill the duty prior to project approval."
8463. That they are acknowledging with that language of "must -- most of" such impacts that there may be impacts that are beyond, not your ability to consider, but your ability to fulfill. And so when that is the case, your recommendations to the Crown, who is the ultimate decision maker can be broader and can consider things that are more expansive. So not to be confined within the narrow four corners of your statute because of, one, you have the constitutional authority as a constitutional imperative to consider what is required
Transcript EH-001-2017 Submissions Ms. Winterburn to fulfill the duty to consult and to make your recommendations for considerations on that picture; and two, to make those recommendations to the ultimate decision maker who is the Crown who may have the ability to fulfill them.
8464. And those are our submissions.
8465. THE CHAIRPERSON: Thank you, Ms. Winterburn, and very ably put, I'm sure. Thank you.
8466. If there's nothing else, we will conclude for the day. And on behalf of the National Energy Board, I would like to thank all the participants, their counsel, witnesses, and those that attended to watch the proceeding. The oral portion of the hearing is now adjourned, and the Board's record is closed, subject to Manitoba Hydro's written reply, argument and those filing written evidence pursuant to yesterday's motion. I believe that's due today at noon; it may even be in by now.
8467. We will issue our decision in accordance with the Board's service standards once written arguments have been received. Thank you.
--- Upon adjourning at 12:39 p.m./L'audience est ajournée à 12h39
Transcript EH-001-2017