Potential environmental impact of hydro projects on First Nations lands and waterways in Manitoba

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Minister's Response: Environment Canada

7 January 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, prepared by Rath & Company Barristers and Solicitors and pursuant to section 22 of the Auditor General Act, regarding the impacts on First Nations’ lands and waterways of Manitoba Hydro projects. Your petition, which was addressed to the former Minister of the Environment, was received in the Department on September 10, 2010.

Enclosed you will find Environment Canada’s response to those questions that fall under the Department’s mandate. I appreciate this opportunity to respond to your petition, and trust that you will find this information helpful.

Sincerely,

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

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

Enclosures

c.c.: The Honourable John Duncan, P.C., M.P.
The Honourable Gail Shea, P.C., M.P.
The Honourable Christian Paradis, P.C., M.P.
The Honourable Chuck Strahl, P.C., M.P.
The Honourable Leona Aglukkaq, P.C., M.P.
The Honourable Rob Nicholson, P.C., Q.C., M.P.
Mr. Scott Vaughan, Commissioner of the Environment and Sustainable Development

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Environment Canada’s Response to Environmental Petition No. 302 regarding the impacts on First Nations’ lands and waterways of Manitoba Hydro projects

Question 1: What knowledge did or does your respective Department have of the potential environmental impacts of the MB Hydro projects with respect to the Treaty and Aboriginal rights to lands, water, fish & wildlife and plants, traditional medicines and foods of each specific Affiliated First Nation?

Response: Environment Canada was established by the Department of the Environment Act in 1971. Many of the projects identified in the petition were completed prior to the coming into force of key legislation regarding wildlife and environmental protection and environmental assessment.

Today, Environment Canada’s mandate is determined by the statutes and regulations assigned to it by Parliament through the Minister of the Environment. In delivering on that mandate, the Department is also responsible for the development and implementation of policies, guidelines, codes of practice, inter-jurisdictional and international agreements and related programs.

A component of Environment Canada’s work is the provision of specialist and expert information and knowledge to decision-makers during environmental assessment reviews of new projects. Environment Canada provides scientific and expert advice regarding the potential environmental impacts of a project, including areas covered by the Canadian Environmental Protection Act, 1999, pollution prevention provisions of the Fisheries Act (subsection 36(3)), Canada Water Act, Canada Wildlife Act, Migratory Birds Convention Act, Species at Risk Act and numerous policies, guidelines and codes of practice.

The Canadian Environmental Assessment Agency is a federal body accountable to the Minister of the Environment. The Agency works to provide Canadians with high-quality environmental assessments that contribute to informed decision making in support of sustainable development. Established in 1994, the Agency came into being to prepare for the Canadian Environmental Assessment Act (the Act), which came into force in early 1995.

Enclosed with this response is a table identifying the projects reviewed by the Department, including the nature of the advice provided.

The following is a breakdown of relevant projects proposed or completed before 1984, post-1984 and pre-1995, and post-1995.

Pre-1984 Projects:

The following projects were completed before promulgation of the Environmental Assessment Review Process Guidelines Order in 1984 and the coming into force of the Act in January 1995:

• Churchill River Diversion Project
• Lake Winnipeg Regulation
• Grand Rapids Generating Station
• Great Falls Generating Station
• Jenpeg Generating Station
• Kelsey Generating Station
• Long Spruce Generating Station
• McArthur Generating Station
• Pine Falls Generating Station
• Seven Sisters Generating Station
• Pointe du Bois Generating Station
• Slave Falls Generating Station
• Laurie River I and II Generating Stations

No federal environmental assessment legislation was in effect at the time that these projects were completed.

Post-1984 and Pre-1995 Projects:

• Limestone Generating Station

Environment Canada was not involved in the approval of this project.

Post-1995 Projects:

The Agency has undertaken preliminary reviews of projects proposed by Manitoba Hydro since the Act came into force in 1995. Only a few of the projects reviewed on a preliminary basis required a federal environmental assessment.

• Selkirk Natural Gas Conversion Project
• Riel Reliability Improvement Initiative

It was determined that environmental assessments were not a requirement for these projects. With respect to the Riel Reliability Improvement Initiative, the Department indicated in a federal coordination regulations form that its concerns would be addressed by the implementation of the proponent's mitigation measures.

• Bipole III Transmission Line Project

Preliminary information on this project has been reviewed and, based upon reviews undertaken up to November 2010, a federal environmental assessment under the Act may not be required. This project will be further reviewed once more details are known.

• Wuskwatim Generating Station

A comprehensive study of the Wuskwatim Generating Project was conducted in co-operation with the Government of Manitoba’s environmental assessment and licensing process. Opportunities were provided during the co-operative assessment process for public participation. As well, a separate but related Aboriginal consultation process was administered jointly with the Government of Manitoba for the Wuskwatim Generating Project.

Environment Canada conveyed its concerns regarding such issues as water quality, migratory birds, toxic chemicals, species at risk, wetland conservation, biodiversity, hydrology, water quality and hydrogeology. A copy of the comprehensive study report completed for the Wuskwatim Generating Project is available on the Agency’s website at www.ceaa-acee.gc.ca/default.asp?lang=En&n=F4F1CD30-1.

• Pointe du Bois Spillway Replacement Project
• Keeyask Generating Station Project
• Conawapa Generating Station Project

An environmental assessment will likely be required under the Act for the Pointe du Bois Spillway Replacement Project. If required, and once a project description is provided, a screening level environmental assessment will be conducted by the federal government. Potentially affected Aboriginal groups will be consulted.

Project proposals to develop the Keeyask and Conawapa generating stations have not yet been provided to federal government departments and agencies for consideration. However, it is expected that both hydro-electric generation projects will likely require a federal environmental assessment under the Act if proposed. Participant funding is made available as part of conducting federal environmental assessments for significant projects in Canada in order to enable interested Aboriginal groups and members of the public to participate in the environmental assessments of those projects.

With respect to Environment Canada’s role, if any of these projects require a federal environmental assessment, departmental officials would be expected to provide departments and agencies with expert policy, technical and scientific analysis and advice on sustainable development and the potential environmental effects of initiatives, in accordance with the requirements set out in the legislation.

For post-1995 projects subject to an environmental assessment, environmental components and issues that may have been/may be considered include:

1. Water, including:

• hydrology
• water quality
• dissolved oxygen; sedimentation/turbidity
• cumulative effects

2. Air/greenhouse gases/climate change impacts on the project, including:

• Methyl mercury generation due to reservoir flooding
• Climate change

3. Wildlife, including:

• Migratory birds (effects on species, populations, habitat-water fowl; water birds; boreal forest birds)
• Species at risk (woodland caribou)

4. Toxic Chemicals, including:

• Mainly mercury, although reviews would have also examined the potential for releases of other substances
• Vegetation management on transmission line right-of-ways

As for the Agency, it would, in particular, administer the environmental assessment process and other requirements and procedures established by the Act and its regulations.

Question 2: Specifically, did your Department know that there would be adverse impacts to the Treaty and Aboriginal rights held by the Affiliated First Nations?

Response: This issue is partly addressed in the response to question 1.

The federal environmental assessment (a comprehensive study) conducted for the Wuskwatim Generating project included an assessment of the adverse effects of the project on the use of lands and resources for traditional purposes by Aboriginal people. Potentially affected Aboriginal people were fully consulted on these adverse effects and any potential infringement of Aboriginal and treaty rights.

Potential environmental assessments for the Pointe du Bois Spillway Replacement Project, the Keeyask Generating Station and the Conawapa Generating Station would also require an assessment of the effects of the project on the use of lands and resources for traditional purposes by Aboriginal persons. Potentially affected Aboriginal groups would be consulted on the possible infringement of Aboriginal and treaty rights caused by the projects. The same would hold true for Bipole III, should it be determined that an environmental assessment under the Act is required for the project.

Question 3: Provide a copy of your respective Department’s policy with respect to the Crown’s duty to consult and where required accommodate First Nations in the resource and sustainable development context.

Response: Enclosed with this response is a copy of the Environment Canada Policy on Public Participation and Aboriginal Consultation*, which was adopted in May 2010.

Question 4: Explain why the Federal Crown has failed to consult with the SCO and Affiliated First Nations about the concerns with respect to the impacts and potential impacts of the MB Hydro Projects.

Response: At no time has Environment Canada or the Agency refused to discharge any responsibilities within their respective mandates.

In fact, consultation with the public and Aboriginal peoples has been part of the federal environmental assessment process since its inception. Following the Haida and Taku River decisions in British Columbia, the federal government has included potentially affected First Nation communities in its environmental assessment processes in an ever-increasingly systematic manner.

Question 5: Describe what environmental and/or lands studies and assessments were conducted, and:

1. When they were conducted;
2. Where they were conducted;
3. Timeframe from start to finish; and
4. What processes and assessment formats were utilized.

The scientific research conducted by Environment Canada’s experts contributes to the expert scientific advice that the Department provides during the environmental assessment process.

For the Wuskwatim Generating Station:

1. During November 2001, Fisheries and Oceans Canada and Transport Canada initiated a comprehensive study of the Wuskwatim Generating project, pursuant to the Act. On June 21, 2006, the Minister of the Environment announced the final determination on whether a panel review would be required under the Act, and referred the project back to Fisheries and Oceans Canada and Transport Canada for actions under their respective legislation. That referral followed a review of Fisheries and Oceans Canada and Transport Canada’s comprehensive study report and public and Aboriginal comments received during a public consultation exercise.
2. Manitoba.
3. November 2001 to June 21, 2006. A follow-up program for the environmental assessment is ongoing.
4. Comprehensive study under the Act.

Federal environmental assessments of the Pointe du Bois Spillway Replacement Project and the Keeyask and Conawapa generating stations have not yet commenced.

Question 6: Please provide a copy of all assessments and studies conducted with respect to the MB Hydro Projects.

Response: A copy of the comprehensive study report completed for the Wuskwatim Generating Project is available on the Agency’s website at www.ceaa-acee.gc.ca/default.asp?lang=En&n=F4F1CD30-1.

Question 7: For each of the Proposed Projects, please advise as to:

1. the approvals granted and date they were granted;
2. approvals and/or assessments that remain outstanding;
3. parties contacted and consulted with respect to Proposed Projects;
4. contacts with the Affiliated First Nations;
5. environmental studies completed;
6. environmental studies scheduled to be completed (and by whom);

Environment Canada has not provided approvals for the proposed projects listed in the petition.

With respect to the Pointe du Bois Spillway Replacement Project, an initial project scoping document has been received from Manitoba Hydro and has been reviewed by officials from the governments of Canada and Manitoba. Additional information is required before Canada can make a final determination as to whether an assessment under the Act would be required. Based on the in-stream works associated with the project, it is likely that an environmental assessment would be triggered. No approvals have been granted for this project. Additional project information can be found on the provincial public registry (www.gov.mb.ca/conservation/eal/registries/5471pointe/index.html).

With respect to the Keeyask and Conawapa Generating Station projects, proposals for these projects have not yet been provided to government officials. Therefore, no federal environmental assessment or Aboriginal consultation exercise has commenced and no federal approvals have been granted.

With respect to the Bipole III Transmission Project, preliminary routing information has been received. The information has been reviewed by federal departments. On the basis of the preliminary routing information, it has been determined that the Act is not likely to apply to the project; therefore, no federal environmental assessment and/or Aboriginal consultation have commenced. Additional project information can be found on the provincial government Public Registry site at www.gov.mb.ca/conservation/eal/registries/5433bipole/index.html.

Question 8: For each of the Proposed Projects, please advise as to the economic losses that Canada agrees were sustained by all Affiliated First Nations as a result of the described impacts and operations by Proposed Projects and MB Hydro Projects.

Response: The discussion of the existence or quantification of alleged economic losses in relation to environmental issues is not properly within the scope of an environmental petition under the Auditor General Act.

Question 9: The SCO and Affiliated First Nations would respectfully request that the appropriate federal department: 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. Please advise as to what your respective federal department will undertake to do in the regard.

Response: At no time has Environment Canada or the Agency refused to discharge any responsibilities within their mandates. Environment Canada and the Agency have fulfilled their mandates in regard to the matters raised in this petition, and have no present intention of conducting any additional investigation into alleged environmental damages as requested.

Question 10: In the alternative, the SCO and Affiliated First Nations would respectfully request that the Commissioner either 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, or, that the Commissioner conduct an audit.

Response: Section 23 of the Auditor General Act sets out the mandate of the Commissioner to make examinations and enquiries in regard to sustainable development. Environment Canada and the Agency have fulfilled their mandates in regard to the matters raised in the petition (as indicated in the response to question 9).

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Minister's Response: Fisheries and Oceans Canada

22 December 2010

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

Dear Grand Chief Shannacappe:

I am pleased to provide you with the Department of Fisheries and Oceans’ response to your environmental petition no. 302, received September 10, 2010, concerning the adverse impacts of Manitoba Hydro projects and the requirement of an environmental audit.

Enclosed you will find the Department of Fisheries and Oceans’ responses to questions 1 to 7 that fall within the Department’s mandate. I understand that my colleagues will be responding separately to questions that fall under their mandate and legislation. Please do not hesitate to contact Margaret Keast, Manitoba District Manager at (204) 984-1334 if you have any further questions.

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

Sincerely,

[Original signed by Gail Shea, Minister of Fisheries and Oceans]

Gail Shea, P.C., M.P.

Attachments*

cc:  The Honourable John Baird, P.C., M.P., Minister of the Environment
The Honourable Chuck Strahl, P.C., M.P., Minister of Transport
The Honourable Robert Douglas, P.C., M.P., Minister of Justice and Attorney General
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 Christian Paradis, P.C., M.P., Minister of Natural Resources
The Honourable Leona Aglukkaq, P.C., M.P., Minister of Health
Scott Vaughan, Commissioner of the Environment and Sustainable Development

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FISHERIES AND OCEANS CANADA’S RESPONSE TO PETITION 302
IMPACTS OF MANITOBA HYDRO PROJECTS

Preface:

Fisheries and Oceans Canada (DFO) works to provide Canadians with sustainable fishery and aquaculture resources. Protection and conservation of fisheries resources and fish habitat is the primary component of fishery and aquaculture management. DFO manages fisheries resources and the impacts of human activities on fish and fish habitat based on sound information and knowledge and on practical and effective policies and practices. Decision making within DFO is guided by the principles of sustainable development, integrated management and the precautionary approach to ensure healthy and productive aquatic ecosystems for the benefit of current and future generations.

1. What knowledge did or does your respective department have of the potential environmental impacts of the Manitoba Hydro projects with respect to the Treaty and Aboriginal rights to land, water, fish & wildlife and plants, traditional medicines and foods of each specific Affiliated First Nation?

DFO's responsibilities for the regulatory review of the environmental impacts of development proposals, including Manitoba Hydro projects, began in the early 1980s with the formal establishment of the Habitat Management Program. Therefore, of the projects listed, DFO has reviewed impacts on fish and fish habitat, as well as broader environmental effects, of the Wuskwatim Generation project. The response to question 4 provides a summary of DFO's involvement in the Wuskwatim project, and notes that DFO was not made aware of any concerns from the Southern Chiefs’ Organization Inc (SCO) and the Affiliated First Nations respecting the Wuskwatim Generation project during consultations.

2. Specifically, did your department know that there would be adverse impacts to the Treaty and Aboriginal rights held by the Affiliated First Nations?

Please see the response to question 1.

3.  Provide a copy of your respective Department’s policy with respect to the Crown’s duty to consult and where required accommodate First Nations in the resource and sustainable development context.

4. Explain why the Federal Crown has failed to consult with the SCO and Affiliated First Nations about the concerns with respect to the impacts and potential impacts of the Manitoba Hydro projects.

DFO has not issued any approvals under the habitat protection provisions of the Fisheries Act respecting the construction and operation of the Projects listed, with the following exception, for which additional narrative is provided:

1) Wuskwatim Generation Project:

As documented in the 2005 Comprehensive Study for the Wuskwatim Generation Project (see Annex B), DFO and the Government of Manitoba undertook a community-based consultation between June 2003 and November 2004 with First Nations and Northern communities that were potentially affected by the Wuskwatim Projects. These First Nations and Northern communities were among those identified as potentially affected communities for purposes of the proponent’s public involvement program. The communities were involved in the design and implementation of the consultation through the development of consultation protocols and plans. The general objective of the consultation was to hear and understand the concerns of First Nations and Aboriginal communities about how their traditional use of resources, lands and waterways might be affected by the proposed Wuskwatim Projects. DFO’s involvement was limited to concerns related to the potential issuance of Fisheries Act authorizations and NWPA approvals (prior to this program being transferred to Transport Canada). In addition, on November 18, 2005, the Canadian Environmental Assessment (CEA) Agency released the comprehensive study report (CSR) for the Wuskwatim Generation Project for public review in accordance with section 22(1) of the Canadian Environmental Assessment Act (CEAA). The public and the First Nations and Northern communities identified as having potential concerns were invited by the CEA Agency to submit comments on the conclusions, recommendations, and any other aspect of the CSR prepared for this project by December 21, 2005. These comments were considered by the Minister of the Environment, along with the CSR, in making his decision under the CEAA.

During the conduct of the comprehensive study the proponent advised that significant impacts to operation of the hydroelectric system were not expected as a result of the Wuskwatim Project. However, in response to concerns raised during the review and through consultation, the proponent was required to undertake a more extensive analysis of this issue. Details of the analysis are provided in Section 7.1.5 of the Comprehensive Study Report and support the conclusion that adverse effects outside the area of direct impact due to the Wuskwatim Generation Project are not expected thus DFO did not have any information to suggest the scope of the Aboriginal consultation process ought to be expanded beyond those communities identified as a result of potential impacts due to any proposed changes in operation of the Churchill-Nelson hydroelectric system.

In addition to the above-described process, a number of other consultation processes were conducted in respect of the Wuskwatim Projects as follows:

• The proponent, in response to Section 4 of the Environmental Impact Statement (EIS) Guidelines, developed a Public Involvement Plan (PIP) outlining an integrated approach to public consultation for the Wuskwatim Generation Project and the Wuskwatim Transmission Project. A focus of the PIP was meaningful consultation with First Nations and Aboriginal peoples. There were five rounds of consultation conducted between 2001 and 2004, and information from this process was provided to regulators.
• Manitoba’s Minister of Conservation mandated the Manitoba Clean Environment Commission (CEC) to conduct a public hearing for the Wuskwatim Generation and Transmission Projects to consider the justification, need for and alternatives to the proposed projects; and the potential environmental, socio-economic and cultural effects of the construction and operation of the Wuskwatim Projects.
  Thirty-two days of hearings were held in Winnipeg, Thompson and The Pas (Opaskwayak Cree Nation (OCN)) from March 1 to June  9, 2004.  The proponent, provincial government regulators and a broad range of funded and non-funded participants took part in the hearings.
• Opportunities for written input were available at various stages of the Project assessment. The draft EIS guidelines were subject to a 90-day review period to allow interested parties to provide their comments and concerns about the project and the draft guidelines. Contacts were identified in the PIP newsletters. A Wuskwatim Web site was developed to link from the Manitoba Hydro web site (www.hydro.mb.ca/wuskwatim). The site included key documents (e.g., newsletters, the Agreement-in-Principle between Manitoba Hydro and Nisichawayasihk Cree Nation (NCN), samples of community presentations, and key documents submitted to the regulators). The web site included a mechanism for the public to submit questions or concerns. There was also an advertised review period for comment on the EIS.

At no time during these consultations was DFO made aware of any concerns from SCO and the Affiliated First Nations respecting the proposed Wuskwatim Generation Project.

5. Describe what environmental and/or land studies and assessments were conducted, and:
a. when they were conducted;
b. where they were conducted;
c. timeframe from start to finish; and
d. what processes and assessments formats were utilized.

Annex C* lists studies and assessments associated with the Manitoba Hydro Projects. Annex D* lists additional studies on Manitoba Hydro Projects provided by DFO Science.

6. Please provide a copy of all assessments and studies conducted with respect to the Manitoba Hydro Projects.

The studies listed in the response to question 5 have not been provided as they are publicly available from DFO (Annex C)* or online through the DFO library at http://inter01.dfo-mpo.gc.ca/waves2/search.html?__LANG=en (Annex D)*.

7. For each of the Proposed Projects, please advise as to:
a. the approvals granted and date they were granted;
b. approvals and/or assessments that remain outstanding;
c. parties contacted and consulted with respect to Proposed Projects;
d. contacts with the Affiliated First Nations;
e. environmental studies completed;
f. environmental studies scheduled to be completed (and by whom).

The Keeyask Project

1. The Keeyask project is at the planning phase only therefore DFO has not provided any approvals. Advice respecting the avoidance of impacts to fish habitat was provided on July 8, 2003 to Manitoba Hydro for Stage 4 investigations at Gull (Keeyask) Rapids. DFO also provided advice to the CEA Agency on February 8, 2008 concerning avoidance of impacts to fish habitat by Manitoba Hydro’s proposed construction of a winter road for exploratory work related to the Keeyask Generating Station site on the Nelson River.
    
2. A formal submission of this project has not been received by DFO as it is at the planning stage only. It is anticipated that the Keeyask Hydropower Limited Partnership (KHLP) will be submitting a formal EIS. The EIS will be available to the public and submitted for review under the CEAA and the Manitoba Environment Act.
    
3. DFO has attended 5 preliminary meetings where an overview of the Keeyask Generating Station project has been provided to DFO and other interested parties. These meetings were initiated by the KHLP. The Partnership is a legal entity established by
   
   Manitoba Hydro and its Keeyask Cree Nation partners, who are: Tastaskweyak Cree Nation and War Lake First Nation (acting together as Cree Nation Partners); York Factory First Nation; and Fox Lake Cree Nation. A copy of the “Joint Keeyask Development Agreement” (JKDA) can be found at www.creenationpartners.ca or http://www.hydro.mb.ca/projects/keeyask/jkd_agreement.shtml
   DFO has attended 2 site tours of the Keeyask Study Area with KHLP.
    
4. Same as above
    
5. Numerous environmental studies have been completed by the proponent.
    
   NOTE: As Keeyask Generating Station is in the project planning phase all studies conducted are property of Manitoba Hydro and are in draft form, therefore copies have not been provided. It is recommended that the SCO contact Manitoba Hydro directly for copies of the studies conducted to date.
    
6. DFO believes further environmental studies will be submitted and/or completed for the Keeyask Generating Station; however we do not have a list at this time. It is anticipated that the KHLP will be submitting a formal EIS.

BiPole III Project

1. DFO has not provided any approvals for the BiPole III project.
    
2. A formal submission of this project has not been received by DFO. DFO received a BiPole III Transmission Project Draft environmental assessment scoping document on January 7, 2010 from the CEA Agency as per provisions under the Canada-Manitoba Agreement on Environmental Assessment Cooperation (2007). The CEA Agency requested federal departments review the project submitted under the Environment Act (Manitoba) to determine federal environmental assessment responsibilities. DFO provided a response to the CEA Agency on February 12, 2010 indicating that it did not believe a trigger under the Fisheries Act was likely, and encouraging the proponents to minimize impacts to fish and fish habitat.
    
3. A formal submission of this project has not been received by DFO, therefore DFO has not contacted or consulted on the BiPole III project.
    
4. A formal submission of this project has not been received by DFO, therefore DFO has not contacted Affiliated First Nations.
    
5. Environmental studies conducted by Manitoba Hydro are ongoing. DFO has not conducted any environmental studies.
    
6. Manitoba Hydro will be submitting a complete EIS. The EIS is scheduled to be completed in June 2011 based on the latest information provided to DFO.

Conawapa

1. Conawapa is at the project planning phase only, therefore DFO has not provided any approvals for this project.
    
2. Conawapa is at the project planning phase only therefore a formal submission of this project has not been received by DFO and outstanding approvals and/or assessments have not been determined at this time.
    
3. Conawapa is at the project planning phase only therefore a formal submission of this project has not been received by DFO.  DFO has not contacted or consulted on the Conawapa project.
    
4. A formal submission of this project has not been received by DFO; therefore DFO has not contacted Affiliated First Nations.
    
5. Copies of documents received by DFO to date, and are not in draft form have been included in this petition response.  Other environmental studies scheduled to be completed have not been determined at this time.
    
   NOTE: Any studies that are in draft form are property of Manitoba Hydro, therefore copies have not been provided. It is recommended that the SCO contact Manitoba Hydro directly for draft copies of the studies conducted to date.

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Minister's Response: Aboriginal Affairs and Northern Development Canada

10 January 2011

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

Dear Grand Chief Shannacappo:

On behalf of the Honourable John Duncan, Minister of Indian Affairs and Northern Development, I am pleased to provide Indian and Northern Affairs Canada’s response to your Environmental Petition No. 302 to the Commissioner of the Environment and Sustainable Development, regarding the adverse impacts of Manitoba Hydro projects and the request for an Environmental Audit.

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

Yours sincerely,

[Original signed by Michael Wernick, Deputy Minister of Indian and Northern Affairs Canada]

Michael Wernick

Encl.

c.c.:  Mr. Scott Vaughan, Commissioner of the Environment and Sustainable Development

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Response

INAC Response to Environmental Petition No. 302 regarding
The alleged adverse impacts of Manitoba Hydro projects and the request for an Environmental Audit

Question 1) What knowledge did or does your respective Department have of the potential environmental Impacts of the Manitoba Hydro projects with respect to the Treaty and Aboriginal rights to lands, water, fish & wildlife and plants, traditional medicines and foods of each specific Affiliated First Nation?

This petition addresses a number of Hydro related projects in Manitoba. All but five (5) are complete. All were projects planned and constructed by Manitoba Hydro. They were constructed on Provincial or Hydro lands. None were constructed on reserve or federal lands.

The Department is not responsible for any of these developments. It did not plan, control or execute them. Accordingly the petition questions regarding sustainable development in regard to these projects would be better directed to Manitoba Hydro or the Province of Manitoba.

While the Department and the Government of Canada subscribes to sustainable development principles in regard to their development activities, they also respect that Manitoba has jurisdiction over natural resources in the Province and has its own laws, regulations and processes in regard to environmental sustainability. The Department is not in a position to manage or control their operations or those of Provincial Crown Corporations.

The dates of completion of the completed projects listed in the petition in chronological order are as follows:

Great Falls Generating Station: 1928
Pointe de Bois Generating Station: 1926
Slave Falls Generating Station: 1948
Seven Sisters Generating Station: 1952
Pine Falls Generating Station: 1952
McArthur generating Station: 1955
Kelsey generation Station: 1961
Grand Rapids Generating Station: 1968
Churchill River Diversion/ Lake Winnipeg Regulation: 1976
Jenpeg Generating Station: 1979
Long Spruce Generating Station: 1979

These projects were completed between 31 and 82 years ago, prior to the sustainable Development initiatives of Canada under which this petition is submitted.

Question 2) Specifically, did your Department know that there would be adverse impacts to the Treaty and Aboriginal rights held by the Affiliated First Nations?

The Department has done an extensive search for documents available related to the enumerated projects. (Please see the answers to Question 5 and Question 6). These reports may contain information related to the effects of the projects which can be reviewed by the Affiliated First Nations to determine if there is anything of relevance to their interests.

Question 3) Provide a copy of your respective Department’s policy with respect to the Crown’s duty to consult and where required accommodate First Nations in the resource and sustainable development context.

The Indian and Northern Affairs Canada website contains the guidelines for federal departments concerning the duty to consult. Please reference http://www.ainc-inac.gc.ca/ai/arp/cn/intgui-eng.pdf

Question 4) Explain why the Federal Crown has failed to consult with the SCO and Affiliated First Nations about the concerns with respect to the impacts and potential impacts of the Manitoba Hydro Projects.

The Department was not the initiator of these projects and did not build them. They were constructed by Manitoba Hydro on its own or on provincial Crown lands, not on federal or reserve lands.

The Department has appropriately discharged its obligations (if any) in accordance with the laws and requirements in effect at the time of development and construction of the projects.

Question 5) Describe what environmental and/or lands studies and assessments were conducted and:

1. When they were conducted;
2. Where they conducted;
3. Timeframe from start to finish, and
4. What process and assessment formats were utilized.

We have conducted an extensive search within the Department and have located the documents listed in the Annex A*.

We have also conducted an internal search within the Department and have identified the documents listed in Annex B*. Should these documents be considered relevant, they could only be released following a review in light of the applicable legal framework including the Privacy Act and the Access to Information Act. Anne Scotton, Chief Audit and Evaluation Executive, will serve as your point of contact with INAC on this file.

Question 6) Please provide a copy of all assessments and studies conducted with respect to the Manitoba Hydro Projects.

Copies of documents listed in Annex A* are available by contacting the Departmental Library-Public Enquiries Contact Centre at 819-953-0920.

Question 7) For each of the Proposed Projects, please advise as to:

1. the approvals granted and date they were granted;
2. approvals and/or assessments that remain outstanding;
3. parties contacted and consulted with respect to Proposed Projects;
4. contacts with the Affiliated First Nations;
5. environmental studies completed;
6. environmental studies scheduled to be completed (and by whom);

The Department of Indian and Northern Affairs is not in a position and does not have jurisdiction to grant approvals or conduct environmental assessments for these proposed projects. If any approvals under the Indian Act are required in relation to the use of reserve land they will be assessed in accordance with the requirements of the Indian Act. None have been requested at this point.

Question 8) For each of the Proposed Projects, please advise as to the economic losses that Canada agrees were sustained by all Affiliated First Nations as a result of the described impacts and operations by Proposed Projects and Manitoba Hydro Projects.

The discussion of the existence or quantification of alleged economic losses in relation to environmental issues does not properly fall within the scope of an environmental petition under the Auditor General Act.

Question 9) The SCO and Affiliated First Nations would respectfully request that the appropriate federal department: 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. Please advise as to what your respective federal department will undertake to do in the regard.

At no time has the Department refused to discharge any responsibilities within its mandate. The Department has fulfilled its mandate in regard to the matters raised in this petition and has no intention of conducting any investigation into alleged environmental damages.

Question 10) In the alternative, the SCO and Affiliated First Nations would respectfully request that the Commissioner either 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, or, that the Commissioner conduct an audit.

Section 23 of the Auditor General Act sets out the mandate of the Commissioner to make examinations and enquiries in regard to sustainable development. The Department has fulfilled its mandate in regard to the matters raised in the petition.

*[attachments not posted]

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Minister's Response: Natural Resources Canada

22 December 2010

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

Dear Grand Chief Shannacappo:

I am pleased to respond to Environmental Petition no. 302 to the Commissioner of the Environment and Sustainable Development, pursuant to section 22of the Auditor General Act, regarding Manitoba hydro projects. Your petition was received by Natural Resources Canada on September 10, 2010.

I am responding to questions 1 through 10, as they relate to the mandate of Natural Resources Canada. I understand that my colleagues, the Honourables John Baird, Minister of the Environment, Gail Shea, Minister of Fisheries and Oceans, Chuck Strahl, Minister of Transport, Infrastructure and Communities, John Duncan, Minister of Indian Affairs and Northern Development and Federal Interlocutor for Métis and Non-Status Indians, and Leona Aglukkaq, Minister of Health will be responding separately to issues that fall under their portfolios.

I appreciate having this 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 Christian Paradis, Minister of Natural Resources]

The Honourable Christian Paradis, P.C., M.P. (Mégantic-L’Érable)

Enclosure: (1)

c.c.: Mr. Scott Vaughan
Commissioner of the Environment and Sustainable Development

The Honourable John Baird, P.C., M.P.
Minister of the Environment

The Honourable Gail Shea, P.C., M.P.
Minister of Fisheries and Oceans

The Honourable Chuck Strahl, 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

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Natural Resources Canada’s Response to 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

Preface

The goal of Natural Resources Canada (NRCan) is to create a sustainable resource advantage for Canadians, now and in the future. The Department works to improve the competitiveness of Canada’s natural resources sectors, which provide jobs and income for Canadian families across the country. The Department strives to ensure that resource development takes place sustainably and advances Canada’s leadership on the environment. NRCan also supports some of the most basic safety and security obligations a country has to its citizens through its knowledge and expertise on Canada’s vast and diverse landmass.

1. What knowledge did or does your respective Department have of the potential environmental impacts of the MB Hydro projects with respect to the Treaty and Aboriginal rights to lands, water, fish & wildlife and plants, traditional medicines and foods of each specific Affiliated First Nation?

2. Specifically, did your Department know that there would be adverse impacts to the Treaty and Aboriginal rights held by the Affiliated First Nations?

3. Provide a copy of your respective Department’s policy with respect to the Crown’s duty to consult and where required accommodate First Nations in the resource and sustainable development context.

4. Explain why the Federal Crown has failed to consult with the SCO and Affiliated First Nations about the concerns with respect to the impacts and potential impacts of the MB Hydro Projects.

5. Describe what environmental and/or lands studies and assessments were conducted, and:
   • When they were conducted;
   • Where they were conducted;
   • Timeframe from start to finish; and
   • What processes and assessment formats were utilized.

6. Please provide a copy of all assessments and studies conducted with respect to the MB Hydro Projects.

7. For each of the Proposed Projects, please advise as to:
   1. the approvals granted and date they were granted;
   2. approvals and or assessments that remain outstanding;
   3. parties contacted and consulted with respect to Proposed Projects;
   4. contacts with the Affiliated First Nations;
   5. environmental studies completed;
   6. environmental studies scheduled to be completed (and by whom);

8. For each of the proposed projects, please advise as to the economic losses that Canada agrees were sustained by all Affiliated First Nations as a result of the described impacts and operations by Proposed Projects and MB Hydro Projects;

9. The SCO and Affiliated First Nations would respectfully request that the appropriate federal department: 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. Please advise as to what your respective federal department will undertake to do in that regard.

10. In the alternative, the SCO and Affiliated First Nations would respectfully request that the Commissioner either 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, or, that the Commissioner conduct and audit.

Appendix A

MB Hydro Projects

Wuskwatim Generating Station

NRCan was a federal authority and provided the following input into the federal comprehensive study conducted as per CEAA.

• Comments on the Draft Guidelines in February 2002
• Expertise to Manitoba Hydro regarding seismicity, surficial geology and permafrost in August 2003
• Comments on the Supplemental Filing #2 and response to the proponent’s comments in May 2004
• Comments on the Draft Comprehensive Study Report in January 2005

For the following Manitoba Hydro projects, NRCan does not have any substantive information regarding the environmental effects of these projects.

• New Ilford Transformer
• Pointe du Bois Modernization
• Selkirk Generating Station
• Kelsey Generating Station

The Proposed Projects

For the proposed Biopole III project has only received preliminary documentation regarding the project.