Follow-up petition on the potential environmental impact of hydro projects on First Nations’ lands and waterways in Manitoba

Petition: 302B

Issue(s): Aboriginal affairs and environmental assessment

Petitioner(s): Southern Chiefs’ Organization Inc.

Date Received: 8 June 2011

Status: Completed

Summary: In this follow-up petition, the petitioner asks federal departments to provide specific details about their consultations with First Nations on the potential impact of Manitoba hydro projects on First Nations lands and waterways. The petitioner also asks the departments to provide a commitment to, and an action plan for, carrying out future consultations with First Nations.

Petition

Follow-Up Petition under the Auditor General Act to the Commissioner on
the Environment and Sustainable Development
Regarding the Adverse Impacts of Manitoba Hydro Projects and the Requirement of an
Environmental Audit

April 28, 2011

Prepared by: Jeffrey R.W. Rath and Nathalie Whyte
Rath & Company
Barristers and Solicitors
Box 44, Site 8, R.R.1
Priddis, Alberta T0L 1W0
Telephone: (403) 931-4047
Facsimile: (403) 931-4048

Email: jrath@rathandcompany.com
nwhyte@rathandcompany.com

For: The Southern Chiefs’ Organization Inc.
Swan Lake First Nation
Unit 4 - 4820 Portage Avenue
Headingley, Manitoba
R4H 1C8

To: Office of the Auditor General of Canada
Commissioner of the Environment and Sustainable Development
Attention: Petitions
240 Sparks Street
Ottawa, Ontario
K1A 0G6
Telephone: (613) 995-3708 ext. 2923
Facsimile: (613) 941-8286
Email: petitions@oag-bvg.gc.ca
Petition File No.: 0302

FOLLOW-UP PETITION UNDER THE AUDITOR GENERAL ACT, R.S.C. 1985, c.A-17

This follow-up Petition is submitted pursuant to the Auditor General Act, R.S.C. 1985, c.A-17 and the publication by the Office of the Auditor General (the “OAG”) titled: Getting answers - A Guide to the Environmental Petitions Process.1

TITLE

The Adverse Impacts of Manitoba Hydro Projects and the Requirement of an Environmental Audit (Petition File No.: 0302)

FEDERAL DEPARTMENTS RESPONSIBLE FOR REPLY

By letter dated September 10, 2010 from Scott Vaughan, Commissioner of the Environment and Sustainable Development formal receipt of the Petition was acknowledged and it was determined that the Petition would be forwarded to the following government departments (the “Departments”):

  • Justice Canada;
  • Health Canada;
  • Transport Canada;
  • Natural Resources Canada;
  • Fisheries and Oceans Canada;
  • Indian and Northern Affairs Canada; and
  • Environment Canada.

It was further communicated that these federal departments would be responsible to submit a reply to the Petition in accordance with timelines as set out in the Auditor General Act, R.S.C. 1985, c.A-17.

A letter dated November 18, 2010 from Lyane Maisonneuve of the Office of the Auditor General was sent to Grand Chief Shannacappo. The letter advised that the Department of Justice would be receiving the Petition for “informational purposes” only and would not be required to submit a response or reply as part of this process.

In reply dated November 18, 2010 Rath & Company indicated that it agreed that Justice Canada should be sent a copy of the Petition. Rath & Company reminded the OAG that the decision to add Justice Canada to the list of government departments responsible for reply was made by Scott Vaughan, Commissioner of the Environment and Sustainable Development. Whether or not this decision could subsequently be overturned by the OAG absent an application for Judicial Review in the Federal Court Trial Division was questioned and a reply in that regard was requested. No response has been received from the OAG.

BACKGROUND INFORMATION

Petition

This Petition was first submitted to the Office of the Auditor General of Canada on August 23, 2010 and concerns damages to First Nations’ lands and waterways in Manitoba due to the approvals, permits, licenses issued and the operation, construction of Manitoba Hydro works, facilities, developments, projects (“MB Hydro Projects”). The damages have occurred as a result of non-adherence to statutory environmental assessments and studies as a direct result of the conduct of the Federal and Provincial Crown failing to act in accordance with their trust and fiduciary duties amounting to breaches of Treaty and Aboriginal rights.

The Petition was submitted on behalf of the Southern Chiefs’ Organization Inc. (the “SCO”) to request an environmental audit be undertaken (funded and conducted) by the appropriate federal government departments on the impacts caused by the MB Hydro Projects. This Petition also requests that upon completion, the environmental audit be released to the SCO.

ISSUES ARISING

This Follow-Up Petition is submitted on behalf to the Petitioners the SCO and Affiliated First Nations in light of the responses received from the above noted Departments.

Responses Received

It is the position of the Petitioners that the responses received by the Departments did not adequately address or respond to the questions and requests of the Petition as follows:

  1. Most Departments maintain the view that as a number of the MB Hydro Projects were completed years ago, they have no present duty to consult and where required accommodate First Nations, and specifically, they have no duty to consult with the SCO and Affiliated First Nations. The Departments fail to acknowledge that pursuant to the Supreme Court’s Judgment in Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council ,2 to the extent that Canada has failed to consult First Nations with respect to the impacts of the MB Hydro projects and the infringements of Treaty and Aboriginal rights does not remove liability for remedies against Canada as a result of such breaches including the award of damages.
  2. Most Departments acknowledged that a number of proposed projects (Pointe du Bois Spillway Replacement Project, Keeyask Generating Station Project and Conawapa Generating Station Project) will require federal environmental assessments, but do not specifically identify how they intend to fulfill their respective duties to consult, and more significantly, do not commit to ensuring the SCO and Affiliated First Nations will be consulted and where required accommodated;
  3. INAC incorrectly maintains that as there were no MB Hydro projects that “were built on reserve or federal lands and that the MB Hydro Projects were built on provincial lands’ and as such, it has no duties to consult. INAC uses this assertion to serve as a justification that it is not responsible and is not required to consult First Nations and specifically the SCO and Affiliated First Nations. INAC’s position in this regard overlooks its obligations under both the Manitoba Natural Resources Transfer Agreement (“NRTA”) and Treaty Land Entitlement. This is significant concern given that all of the Affiliated First Nations have outstanding Treaty Land Entitlement claims or rights to land pursuant to Treaty Land Entitlement or otherwise. Many of the Affiliated First Nations have suffered losses of land due to the erosion or flooding or have lands saturated to the point of being unsuitable for purposes under Treaty including agriculture and residential housing. As a result of Manitoba Hydro’s actions or inactions and related water diversion projects, the lands continue to be regularly flooded, such that portions or entire housing infrastructures are unsuitable because of mould and other flood related damages. These same Affiliated First Nations have also suffered degradation of their agricultural lands due to water saturation and flooding to the point where these lands are no longer suitable or in some cases even useable for agricultural purposes due to flooding and saturation. Replacement lands and damage for economic losses will be specifically required in this regard. It is possible for the Treaty Land Entitlements to be fulfilled by the purchase of private lands, or by the selection and the grant of Crown lands which would then in turn be converted into reserve lands. The refusal of INAC (and other Departments) to consult with SCO and Affiliated First Nations on this basis is unconstitutional as Manitoba has a constitutional obligation to provide lands to Canada so that Canada can fulfill it Treaty obligations pursuant to sections 1 and 11 of the Manitoba Natural Resources Transfer Agreement (the “NRTA”). INAC’s position is extremely problematic in that it fails to acknowledge its fiduciary obligation and trust like duties owed to First Nations. The Crown must hold or provide lands for the use, benefit and in the best interests of a First Nation in accordance with these principles. Failure to do so results in a breach of trust, fiduciary and constitutional obligations and breach of Treaty.
  4. Each Department either denies that it has failed to discharge any responsibilities, or maintains that it has discharged its respective obligations - ‘if any’. However no concrete examples are given as to these assertions.
  5. All of the Departments refused to address economic losses;
  6. All of the Departments state that they refuse to conduct, commission and fund investigations into the environmental damages suffered by the SCO and Affiliated First Nations or that they have fulfilled their respective mandates and have no intention of conducting any investigations or both.

As a result of the Department responses the Petitioners’ questions and requests were either unaddressed or inadequately addressed, or both.

FOLLOW-UP PETITION REQUESTS

  1. The Departments who have indicated that they have engaged in consultation with SCO and Affiliated First Nations provide specific details as to:
    1. Which project/s;
    2. How it determined which First Nation would be consulted;
    3. Which SCO First Nation/s they consulted;
    4. When, where;
    5. Responses received; and
    6. What each respective Department did with the information obtained from the First Nation/s.
  1. The Departments be directed to provide the Petitioners in writing their commitment to the consultation process, their acknowledgment that they will engage in meaningful consultation with the SCO and Affiliated First Nations, and an action plan with which to do so;
  2. The SCO and Affiliated First Nations would respectfully request that pursuant to section 23 of the Auditor General Act, R.S.C. 1985, c.A-17 the Commissioner order the appropriate federal department to: conduct, commission and fund an investigation into all of the environmental damages suffered by the Affiliated First Nations as a result of the MB Hydro Projects and the Federal Crown’s refusal to protect the Affiliated First Nations’ interests pursuant to Treaty and the Constitution Act, 1982; and
  3. That pursuant to the Auditor General Act, R.S.C. 1985, c.A-17 including but not limited to section 7(2) the Commissioner conduct a performance audit and an environmental audit. Further, that these findings be released to the SCO and Affiliated First Nations.

This follow-up Petition is hereby submitted pursuant to the Auditor General Act, R.S.C. 1985, c.A-17 and the publication by the OAG titled: Getting Answers - A Guide to the Environmental Petitions Process.

SOUTHERN CHIEFS' ORGANIZATION INC.

Per: [Original signed by Grand Chief Shannacappo]
Grand Chief Shannacappo

RATH & COMPANY

Per: [Original signed by Jeffrey R. W. Rath]
Jeffrey R.W. Rath

[Original signed by Nathalie Whyte]
Nathalie Whyte


  1. Office of the Auditor General of Canada. Getting answers - A guide to the Environmental Petitions Process (2008: Minister of Public Works and Government Services, Canada) at page 15, online: Office of the Auditor General of Canada <http://www.oag-bvg.gc.ca/internet/English/pet_lp_e_930.html>.
  2. Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43[Carrier Sekani] at paras. 37 and 49.

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Minister's Response: Environment Canada

13 October 2011

Grand Chief Morris Swan Shannacappo
Southern Chiefs’ Organization Inc.
Swan Lake First Nation
4820 Portage Avenue, Unit 4
Headingley MB R4H 1C8

Dear Grand Chief Shannacappo:

I am pleased to provide the response of Environment Canada and the Canadian Environmental Assessment Agency to your Environmental Petition No. 302-B, prepared by Rath & Company Barristers and Solicitors and pursuant to section 22 of the Auditor General Act, regarding the adverse impacts of Manitoba hydro projects and the requirement of an environmental audit. Your petition was received by Environment Canada on June 23, 2011.

  1. The Departments who have indicated that they have engaged in consultation with SCO and Affiliated First nations provide specific details as to:
    1. Which project/s;
    2. How it determined which First Nation would be consulted;
    3. Which SCO First Nation/s they consulted;
    4. When, where;
    5. Responses received; and
    6. What each respective Department did with the information obtained from the First Nation/s.

The subject matters raised in this question are now in issue in legal actions filed in the Manitoba Court of Queen’s Bench by the Ebb and Flow First Nation and the Peguis First Nation. Therefore, the Canadian Environmental Agency will not address these issues any further in response to this petition.

  1. The Departments be directed to provide the Petitioners in writing their commitment to the consultation process, their acknowledgment that they will engage in meaningful consultation with the SCO and Affiliated First Nations, and an action plan with which to do so;

The Canadian Environmental Assessment Agency continues to be fully committed to meaningful consultation with First Nations and other Aboriginal groups in accordance with Aboriginal Consultation and Accommodation - Updated Guidelines for Federal Officials to Fulfill the Duty to Consult, March 2011. This document is publicly available on the internet at: http://www.ainc-inac.gc.ca/ai/arp/cnl/ca/intgui-eng.asp. The previous edition of this publication was forwarded in response to Petition 302.

  1. The SCO and Affiliated First nations would respectfully request that pursuant to section 23 of the Auditor General Act, R.S.C. 1985, c.A-17 the Commissioner order the appropriate federal department to: condult, commission and fund an investigation into all of the environmental damages suffered by the Affiliated First Nations as a result of the MB Hydro Projects and the Federal Crown’s refusal to protect the Affiliated First Nations’ interests pursuant to Treaty and the Constitution Act, 1982; and

This request is directed to the Commissioner of the Environment and Sustainable Development of the Office of the Auditor General. The Canadian Environmental Assessment Agency respectfully defers to the Commissioner’s office to respond in regard to its intentions.

  1. That pursuant to the Auditor General Act, R.S.C. 1985, c.A-17 including but not limited to section 7(2) the Commissioner conduct a performance audit and an environmental audit. Further, that these findings be released to the SCO and Affiliated First Nations.

Please see response to question 3.

I appreciate this opportunity to respond to your petition.

Sincerely,

[Original signed by Peter Kent, Minister of the Environment]

The Honourable Peter Kent, P.C., M.P.

c.c.: The Honourable Keith Ashfield, P.C., M.P.
The Honourable Denis Lebel, P.C., M.P.
The Honourable John Duncan, P.C., M.P.
The Honourable Leona Aglukkaq, P.C., M.P.
The Honourable Joe Oliver, P.C., M.P.
The Honourable Rob Nicholson, P.C., M.P.
Mr. Scott Vaughan, Commissioner of the Environment and Sustainable Development

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Minister's Response: Health Canada

18 October 2011

Grand Chief Morris J. Swan Shannacappo
Southern Chiefs’ Organization Inc.
Swan Lake First Nation
4-4820 Portage Avenue
Headingley, Manitoba  R4H 1C8

Mr. Jeffrey R.W. Rath
Ms. Nathalie Whyte
Rath & Company
Barristers and Solicitors
Box 44, Site 8, R.R. 1
Priddis, Alberta  T0L 1W0

Dear Grand Chief Shannacappo and Cosignatories:

This is in response to your environmental petition no. 302-B of May 30, 2011, addressed to Mr. Scott Vaughan, the Commissioner of the Environment and Sustainable Development (CESD).

In your petition you raised concerns about the impacts of Manitoba Hydro projects and the need for environmental audits.

I am pleased to provide you with the enclosed Health Canada response to your petition. I understand that the ministers of Aboriginal Affairs and Northern Development Canada, Fisheries and Oceans Canada, Environment Canada, Natural Resources Canada, and Transport, Infrastructure and Communities, will also be responding on behalf of their respective departments.

I appreciate your interest in this important matter.

Sincerely,

[Original signed by Leona Aglukkaq, Minister of Health]

Leona Aglukkaq

Enclosure

c.c.  Mr. Scott Vaughan, CESD
The Honourable John Morris Duncan, P.C., M.P.
The Honourable Keith Ashfield, P.C., M.P.
The Honourable Peter Kent, P.C., M.P.
The Honourable Joe Oliver, P.C., M.P.
The Honourable Denis Lebel, P.C., M.P.


Health Canada Response

CESD Petition no. 302-B:
The Adverse Impacts of Manitoba Hydro Projects and the
Requirement of an Environmental Audit

Question 1

The Departments who have indicated that they have engaged in consultation with SCO and Affiliated First Nations provide specific details as to:

  1. Which project/s;
  2. How it determined which First Nation would be consulted;
  3. Which SCO First Nation/s they consulted;
  4. When, where;
  5. Responses received; and
  6. What each respective Department did with the information obtained for the First Nations/s.

The subject matters raised in this question are now an issue in legal actions filed in the Manitoba Court of Queen’s Bench by the Ebb and Flow First Nation and the Peguis First Nation. Therefore, Health Canada will not address these subject matters any further in response to this petition.

Question 2

The Departments be directed to provide the Petitioners in writing their commitment to the consultation process, their acknowledgement that they will engage in meaningful consultation with the SCO and Affiliated First Nations, and an action plan with which to so do;

The commitment of Aboriginal consultation is set out in a publication entitled Aboriginal Consultation and Accommodation - Updated Guidelines for Federal Officials to Fulfil the Duty to Consult, March 2011, which is publicly available on the internet at http://www.ainc-inac.gc.ca/eng/1100100014664

Question 3

The SCO and Affiliated First Nations would respectfully request that pursuant to section 23 of the Auditor General Act, R.S.C. 1985, c.A-17 the Commissioner order the appropriate federal department to: conduct, commission and fund an investigation into all of the environmental damages suffered by the Affiliated First Nations as a result of the MB Hydro Project and the Federal Crown’s refusal to protect the Affiliated First Nations’ interests pursuant to Treaty and the Constitution Act, 1982; and

Health Canada respectfully declines to answer this question as it is addressed to the Commissioner of the Environment and Sustainable Development.

Question 4

That pursuant to the Auditor General Act, R.S.C. 1985, c.A-17 including but not limited to section 7(2) the Commissioner conduct a performance audit and an environmental audit. Further, that these findings be released to the SCO and Affiliated First Nations.

Health Canada respectfully declines to answer this question as it is addressed to the Commissioner of the Environment and Sustainable Development.

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Minister's Response: Fisheries and Oceans Canada

18 October 2011

The Southern Chiefs’ Organization Inc.
Swan Lake First Nation
Unit 4-4820 Portage Avenue
Headingley, Manitoba
R4H 1C8

Dear Grand Chief Shannacappo:

I am pleased to provide you with Fisheries and Oceans Canada’s response to your Environmental Petition No. 302B, received June 23, 2011, concerning the adverse impacts of Manitoba Hydro projects and the requirement of an environmental audit.

Enclosed you will find the Department’s response to your questions that fall within its mandate. I understand that my colleagues will be responding separately to questions that fall under their mandates and legislation.

I appreciate the opportunity to respond to your petition and trust that you will find this information helpful.

Sincerely,

[Original signed by Keith Ashfield, Minister of Fisheries and Oceans]

Keith Ashfield

Attachment

cc:  The Honourable Peter Kent, P.C., M.P.
The Honourable Denis Lebel, P.C., M.P.
The Honourable Joe Oliver, P.C., M.P.
The Honourable John Duncan, P.C., M.P.
The Honourable Leona Aglukkaq, P.C., M.P.
Scott Vaughan, Commissioner of the Environment and Sustainable Development


FISHERIES AND OCEANS CANADA’S RESPONSE TO FOLLOW-UP PETITION 302B - ADVERSE IMPACTS OF MANITOBA HYDRO PROJECTS AND REQUIREMENT OF AN ENVIRONMENTAL AUDIT

Preface:  In responding to the original Petition 302, Fisheries and Oceans Canada detailed its involvement and commitment to Aboriginal consultation in consideration of the specific projects submitted by the Southern Chiefs’ Organization (SCO). Thus, we respectfully refer the petitioner back to the details and information provided. In addition, we submit the following responses to questions provided in follow-up Petition 302B as they relate to the duties, mandate and authority afforded to our Department.

Question 1: The Departments who have indicated that they have engaged in consultation with SCO and Affiliated First Nations provide specific details as to:

  1. Which project/s;
  2. How it determined which First Nation would be consulted;
  3. Which SCO First Nation/s they consulted;
  4. When, where;
  5. Responses received; and
  6. What each respective Department did with the information obtained from the First nation/s.

Response: The subject matters raised in this question are now in issue in legal actions filed in the Manitoba Court of Queen’s Bench by the Ebb and Flow First Nation and the Peguis First Nation. Therefore, Departments will not address these subject matters any further in response to this petition.

Question 2: The Departments be directed provide the Petitioners in writing their commitment to the consultation process, their acknowledgement that they will engage in meaningful consultation with the SCO and Affiliated First Nations, and an action plan with which to do so.

Response:  In accordance with respective legislation and associated policies, Fisheries and Oceans Canada continues to be fully committed to meaningful consultation with Aboriginal groups. This commitment is outlined in its publication entitled “Aboriginal Consultation and Accommodation Updated Guidelines for Federal Officials to Fulfill the Legal Duty to Consult, March 2011, publicly available at: http://www.ainc-inac.gc.ca/eng/1100100014664. The Guidelines describe the phases of the consultation process, from pre-consultation analysis to monitoring and follow-up. The previous edition of this publication was forwarded in response to Petition 302.

Question 3: The SCO and Affiliated First Nations would respectfully request that pursuant to section 23 of the Auditor General Act, R.S.C. 1985, c.A-17 the Commissioner order the appropriate federal department to: conduct, commission and fund an investigation in all of the environmental damages suffered by the Affiliated First Nations as a result of the MB Hydro Project and the Federal Crown’s refusal to protect the Affiliated First Nations’ interest pursuant to Treaty and the Constitution Act, 1982.

Response: This request is directed to the Commissioner of the Environment and Sustainable Development of the Office of the Auditor General. Fisheries and Oceans Canada respectfully defers to the Commissioner’s office to respond in regard to its intentions.

Question 4: That pursuant to the Auditor General Act, R.S.C. 1985, c.A-17 including but not limited to section 7(2) the Commissioner conduct a performance audit and an environmental audit. Further, that these findings be released to the SCO and Affiliated First Nations.

Response: This request is directed to the Commissioner of the Environment and Sustainable Development of the Office of the Auditor General. Fisheries and Oceans Canada respectfully defers to the Commissioner’s office to respond in regard to its intentions.

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Minister's Response: Aboriginal Affairs and Northern Development Canada

20 October 2011

Grand Chief Morris J. Swan Shannacappo
Southern Chiefs’ Organization Inc.
Swan Lake First Nation
4 – 4820 Portage Avenue
HEADINGLY MB R4H 1C8

Dear Grand Chief Shannacappo:

This is in response to your Environmental Petition 302-B of April 28, 2011, received by the Commissioner of the Environment and Sustainable Development on June 8, 2011.

This petition is supplementary to Environmental Petition 302 dated August 30, 2010, and contains similar requests related to Manitoba Hydro projects and requests for environmental audits and investigations.

Attached is Aboriginal Affairs and Northern Development Canada’s completed response to Petition 302-B.

Sincerely,

[Original signed by John Duncan, Minister of Aboriginal Affairs and Northern Development Canada]

John Duncan, PC, MP

Encl.

c.c.: The Honourable Robert Nicholson, PC, MP
The Honourable Denis Lebel, PC, MP 
The Honourable Keith Ashfield, PC, MP
The Honourable Peter Kent, PC, MP
The Honourable Joe Oliver, PC, MP
Mr. Scott Vaughan


Aboriginal Affairs and Northern Development Canada (AANDC)
Response to Environmental Petition 302-B:
Regarding the potential impacts of Manitoba Hydro projects
and request for Environmental Audits

Question 1: The departments which have indicated that they have engaged in consultation with the Southern Chiefs’ Organization Inc. (SCO) and Affiliated First Nations provide specific details as to:

  1. which project/s;
  2. how it determined which First Nation would be consulted;
  3. which SCO First Nation/s they consulted;
  4. when, where;
  5. responses received; and
  6. what each respective department did with the information obtained from the First Nation/s.

AANDC Response: The subject matter raised in this question is now an issue in legal actions filed in the Manitoba Court of Queen’s Bench by the Ebb and Flow First Nation and the Peguis First Nation. Therefore, departments will not address these subject matters any further in response to this petition.

Question 2: The departments be directed to provide the petitioners in writing their commitment to the consultation process, their acknowledgement that they will engage in meaningful consultation with the SCO and the Affiliated First Nations, and an action plan with which to do so.

AANDC Response: The current commitment of AANDC to Aboriginal consultation is set out in a publication titled Aboriginal Consultation and Accommodation - Updated Guidelines for Federal Officials to Fulfill the Duty to Consult, March 2011, which is publicly available on the internet at: http://www.ainc-inac.gc.ca/ai/arp/cnl/ca/intgui-eng.asp. The previous edition of this publication was forwarded in response to Petition 302.

Question 3: The SCO and Affiliated First Nations would respectfully request that pursuant to section 23 of the Auditor General Act, R.S.C. 1985., the Commissioner order the appropriate federal department to: conduct, commission and fund an investigation into all of the environmental damages suffered by the Affiliated First Nations as a result of Manitoba Hydro projects and the federal Crown’s refusal to protect the Affiliated First Nations’ interests pursuant to Treaty and the Constitution Act, 1982.

AANDC Response: A similar question was posed in Questions 9 and 10 of Petition 302. The Department respectfully declines to answer this question as it is addressed to the Commissioner of the Environment and Sustainable Development.

Question 4: That pursuant to the Auditor General Act, R.S.C. 1985, including but not limited to section 7(2), the Commissioner conduct a performance audit and an environmental audit. Further, that these findings be released to the SCO and the Affiliated First Nations.

AANDC: The Department respectfully declines to answer this question as it is addressed to the Commissioner of the Environment and Sustainable Development.

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Minister's Response: Natural Resources Canada

20 October 2011

Grand Chief Morris J. Swan Shannacappo
Southern Chiefs’ Organization Inc.
Swan Lake First Nation
4820 Portage Avenue, Unit 4
Headingley, Manitoba   R4H 0C8

Dear Grand Chief Shannacappo:

I am pleased to respond to Environmental Petition no. 302-B to the Commissioner of the Environment and Sustainable Development, pursuant to section 22of the Auditor General Act, regarding Manitoba Hydro Projects.  Natural Resources Canada received your petition on June 23, 2010.

I am responding to questions 1 through 4, as they relate to the mandate of Natural Resources Canada.  I understand that my colleagues, the Honourables Peter Kent, Minister of the Environment; the Honourable Keith Ashfield, Minister of Fisheries and Oceans; the Honourable  Denis Lebel, Minister of Transport, Infrastructure and Communities; the Honourable John Duncan, Minister of Aboriginal Affairs and Northern Development and Federal Interlocutor for Métis and Non-Status Indians; and the Honourable Leona Aglukkaq, Minister of Health, will be responding separately to issues that fall under their portfolios.

I appreciate having the opportunity to respond to your petition and trust that you will find this information helpful.  Thank you for raising these important concerns.

Yours sincerely,

[Original signed by Joe Oliver, Minister of Natural Resources]

The Honourable Joe Oliver, P.C., M.P.

Enclosure: (1)

c.c.:   Distribution

Mr. Scott Vaughan Commissioner of the Environment and Sustainable Development

The Honourable Peter Ken, P.C., M.P. Minister of the Environment

The Honourable Keith Ashfield, P.C., M.P. Minister of Fisheries and Oceans

The Honourable Denis Lebel, P.C., M.P. Minister of Transport, Infrastructure and Communities

The Honourable John Duncan, P.C., M.P. Minister of Indian Affairs and Northern Development and Federal Interlocutor for Métis and Non-Status Indians

The Honourable Leona Aglukkaq, P.C., M.P. Minister of Health


Natural Resources Canada’s Response to Follow-up Petition under the Auditor General Act to the Commissioner on the Environment and Sustainable Development Regarding the Adverse Impacts of Manitoba Hydro Projects and the Requirement of an Environmental Audit

  1. The Departments who have indicated that they have engaged in consultation with SCO and Affiliated First nations provide specific details as to:
    1. Which project/s;
    2. How it determined which First Nations would be consulted;
    3. Which SCO First Nation/s they consulted;
    4. When, where;
    5. Responses received; and
    6. What each respective Department did with the information obtained from the First Nation/s.
    The subject matter raised in this question is under legal action filed in the Manitoba Court of Queen’s Bench by the Ebb and Flow First Nation and the Peguis First Nation.  Therefore, Departments will not address the subject matter any further in response to this petition.
  1. The Departments be directed to provide the Petitioners in writing their commitment to the consultation process, their acknowledgement that they will engage in meaningful consultation with the SCO and Affiliated First Nations, an action plan with which to do so;

    Natural Resources Canada’s commitment to Aboriginal consultations is set out in the department’s Policy on Aboriginal Consultation and Engagement, which received departmental approval in January, 2011.  The Policy illustrates Natural Resources Canada’s commitment to meaningful consultation and describes the phases of the consultation process, from pre-consultation analysis to monitoring and follow-up.

    Natural Resources Canada’s Guidelines are consistent with the Government of Canada Aboriginal Consultation and Accommodation – Updated Guidelines for Federal Officials to Fulfill the Duty to Consult, March 2011, which is publicly available on the internet at:  http://www.ainc-inac.gc.ca/ai/arp/cnl/ca/intgui-eng.asp.
  1. The SCO and Affiliated First nations would respectfully request that pursuant to section 23 of the Auditor General Act, R.S.C. 1985, c.A-17 the Commissioner order the appropriate federal department to:  conduct, commission and fund an investigation into all of the environmental damages suffered by the Affiliated First Nations as a result of the MB Hydro Projects and the Federal Crown’s refusal to protect the Affiliated First Nations’ interests pursuant to Treaty and the Constitution Act, 1982; and

    This request is directed to the Commissioner of the Environment and Sustainable Development of the Office of the Auditor General.  Natural Resources Canada respectfully defers to the Commissioner’s office to respond in regard to its intentions.
  1. That pursuant to the Auditor General Act, R.S.C. 1985, c.A-17 including but not limited to section 7(2) the Commissioner conduct a performance audit and an environmental audit.  Further, that these findings be released to the SCO and Affiliated First Nations.

    Same response as in question 3.

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Minister's Response: Transport Canada

21 October 2011

Mr. Jeffrey R.W. Rath
and Ms. Nathalie Whyte
Rath & Company
Barristers and Solicitors
Box 44, Site 8, R.R.1
Priddis, Alberta
T0L 1W0

Dear Mr. Rath and Ms. Whyte:

I am writing in response to the petition that you sent to the Office of the Commissioner of Environment and Sustainable Development, dated May 30, 2011, regarding the Southern Chiefs’ Organization (SCO) Incorporated’s concerns in relation to certain Manitoba Hydro Projects. Your petition (#302B) was forwarded to Transport Canada on June 23, 2011 pursuant to Section 22 of the Auditor General Act.

Your petition has been reviewed in relation to Transport Canada’s mandate. I understand that Environment Canada, Health Canada, Fisheries and Oceans Canada, Aboriginal Affairs and Northern Development Canada and Natural Resources Canada will also respond to your letter according to their mandate and legislative responsibilities.

Regarding the questions addressed to Transport Canada, I am pleased to offer the following information:

  1. The Departments who have indicated that they have engaged in consultation with SCO and Affiliated First nations provide specific details as to:
    1. Which project/s;
    2. How it determined which First Nation would be consulted;
    3. Which SCO First Nation/s they consulted;
    4. When, where;
    5. Responses received; and,
    6. What each respective Department did with the information obtained from the First Nation/s.

The subject matters raised in this question are now in issue in legal actions filed in the Manitoba Court of Queen’s Bench by the Ebb and Flow First Nation and the Peguis First Nation. Therefore, Transport Canada will not address these subject matters any further in response to this petition.

  1. The Departments be directed to provide the Petitioners in writing their commitment to the consultation process, their acknowledgment that they will engage in meaningful consultation with the SCO and Affiliated First Nations, and an action plan with which to do so;

Transport Canada’s commitment to Aboriginal consultation is set out in Transport Canada Aboriginal Consultation and Accommodation Guidelines. This document was previously provided as part of the response to Petition 302. The Guidelines illustrate Transport Canada’s commitment to meaningful consultation and describe the phases of the consultation process, from pre-consultation analysis to monitoring and follow-up.

Transport Canada’s Guidelines are consistent with the Government of Canada Aboriginal Consultation and Accommodation - Updated Guidelines for Federal Officials to Fulfill the Duty to Consult, March 2011, which is publicly available on the internet at: http://www.ainc-inac.gc.ca/ai/arp/cnl/ca/intgui-eng.asp. The previous edition of this publication was forwarded in response to Petition 302.

  1. The SCO and Affiliated First nations would respectfully request that pursuant to section 23 of the Auditor General Act, R.S.C. 1985, c.A-17 the Commissioner order the appropriate federal department to: conduct, commission and fund an investigation into all of the environmental damages suffered by the Affiliated First Nations as a result of the Manitoba Hydro Projects and the Federal Crown’s refusal to protect the Affiliated First Nations’ interests pursuant to Treaty and the Constitution Act, 1982; and,

This request is directed to the Commissioner of the Environment and Sustainable Development of the Office of the Auditor General. Transport Canada respectfully defers to the Commissioner’s office to respond in regard to its intentions.

  1. That to the Auditor General Act, R.S.C. 1985, c.A-17 including but not limited to section 7(2) the Commissioner conduct a performance audit and an environmental audit. Further, that these findings be released to the SCO and Affiliated First Nations.

Response is the same as in question 3.

Thank you for bringing your concerns to the Commissioner of Environment and Sustainable Development. I trust, as they relate to Transport Canada, that the foregoing has clarified your questions regarding the Manitoba Hydro Projects.

Yours sincerely,

[Original signed by Denis Lebel, Minister of Transport, Infrastructure and Communities and Minister of the Economic Development Agency of Canada for the Regions of Quebec]

Denis Lebel, P.C., M.P

c.c.: Scott Vaughan, Commissioner of the Environment and Sustainable Development
Peter Kent, Minister of Environment Canada
Leona Aglukkaq, Minister of Health
Keith Ashfield, Minister of Fisheries and Oceans Canada
John Duncan, Minister of Aboriginal Affairs and Northern Development Canada
Joe Oliver, Minister of Natural Resources Canada