Regional Director, Prairie Office

December 15, 2005

Dan McNaughton

Canadian Environmental Assessment Agency

Suite 445, 123 Main Street

Winnipeg, Manitoba

R3C 4W2

Re: Wuskwatim Generation Project: Canadian Environmental Assessment Act Comprehensive Study Report, October 2005.

Mr. McNaughton

This letter is in response to the Wuskwatim Generation Station: Canadian Environmental Assessment Act Comprehensive Study Report October 2005, prepared by Fisheries and Oceans Canada

We note that the findings of Department of Fisheries and Oceans and Transport Canada in the Wuskwatim Generation Station Project Comprehensive Study Report states that:

Taking into account the implementation of any mitigation that was considered to be appropriate, including the proposed habitat compensation measures, as well as the follow-up programs and the Proponent’s commitments, Fisheries and Oceans Canada and Transport Canada have determined that the proposed Project, as defined by the scope of the study, is not likely to cause significant adverse environmental effects. (Pg. ii, Department of Fisheries and Oceans Comprehensive Study Report 2005)

This position is fundamentally deficient and flawed for the reasons outlined below, asthe EIS and other information which forms the basis of the DFO Comprehensive Study Report are themselves flawed.

The nature of these deficiencies are 3 fold:

Lack of adequate proponent and Crown consultation with the Manitoba Metis Federation (MMF) to determine scope of study, adverse effects, mitigative and compensative measures, and accommodation of Metis rights infringements;
Ill-defined scope of EIS study regarding cumulative and other effects on Metis culture; and,
Errors in specific determination of effects based upon deficiencies in 1 and 2 above.

As a result of these fundamental flaws, the work the MMF has produced which demonstrates significant adverse effects on Metis culture, way of life, land use and occupancy, has been ignored.

1. Ill-defined scope of study regarding cumulative and other effects on Metis culture

The defined scope of the study, as determined by the proponents, and set out in the Environmental Impact Statement and accepted by Department of Fisheries and Oceans and Transport Canada in the Comprehensive Study Report, is deficient and flawed in that it does not meet either the “Guidelines for the Preparation of an Environmental Impact Statement for the Wuskwatim Generation/Transmission Projects” (Wuskwatim Guidelines) nor the Canadian Environmental Assessment Act (CEAA) nor the definition of Environmental Effects as amended in the Species at Risk Act (SARA).

Specifically, the Environmental Impact Statement and Comprehensive Study Report are flawed because the scope of the study does not address:

· temporal issues (Churchill River Diversion, Northern Flood Agreement and government policy regarding Metis);

· spatial issues (high Metis mobility in land and resource use); and,

· specific issues studied (Social justice issues regarding lack of Metis Nation Impacts and Benefits Agreements and equity ownership, First Nation’s effects and mitigative measures based on First Nation’s Culture and Traditional Knowledge, without similar recognition of Metis Culture and Traditional Knowledge).

The Metis reality is based on a different and distinctive set of cultural, livelihood, land use and occupancy paradigm than the existing and well-documented ‘‘First Nation’ paradigm used by the proponents. It must be further noted that the MMF were not involved in the determination of the scope of the EIS study.

As a result of these deficiencies, the Comprehensive Study Report only makes passing reference to some of the cumulative and other effects of the Wuskwatim Projects on Metis culture because these effects, which are primarily socio-economic are deemed to fall outside of the scope of their review. This is wrong.

The Wuskwatim Guidelines state that:

“Cumulative effects assessment (CEA) shall form an integral part the environmental and socio-economic assessment. The cumulative effects assessment shall look at all effects that are likely to result from the project when they are likely to occur in combination with other projects or activities that have been, or will be carried out. The environmental impact statement shall explain the approach and methods used to identify and assess the cumulative effects and provide a record of all assumptions and analysis that support the conclusions, including the level of confidence in the data used in the analysis.” (our emphasis)

Government of Manitoba. (2002). Guidelines for the Preparation of an Environmental Impact Statement for the Wuskwatim Generation/Transmission Project.

The MMF submits that in its MMF Wuskwatim Pilot Project, Final Report (attached), it demonstrated real links between environmental effects and many of the subsequent socio-cultural effects, especially concerning Metis land use and occupancy in the area. This will be explained further under section #3 in traditional resource use.

In the Comprehensive Study Report, even Department of Fisheries and Oceans and Transport Canada agree with the MMF position regarding the scope of cumulative effects, but still fall short of incorporating Metis adverse effects:

It should be noted that although the Proponent’s assessment approach recognizes that Wuskwatim Lake and adjoining waters, as well as the entire Churchill River Diversion (CRD) route, is a disrupted environment, as a result of both the initial diversion of water from the Churchill River in the 1970s and ongoing regulation, the CRD was not included in the Proponent’s cumulative effects assessment. However, DFO and TC are of the view that where ongoing effects of the CRD have the potential to act cumulatively with identified effects of the Project, it is appropriate to consider the CRD in that context. (Pg. 27)

In various reports, presentations and letters, the MMF made it clear to Manitoba, Canada, the Clean Environment Commission, and the proponents that as the self-government representative of the Metis Nation’s Manitoba Metis Community, we needed to be involved at all stages of the project including the planning and scoping stages to ensure the Environmental Impact Statement met the Wuskwatim Guidelines and CEAA and SARA legislation regarding Metis effects. The MMF Wuskwatim Pilot Project final report states:

“Using the standard analysis, the approach taken by the MMF in its Final Report, will not likely be considered “objective” because the Metis do not agree with the idea that our environment is divisible and separate from our culture. We take the position that when our land and waterways are affected, our entire existence is affected and we are therefore involved in a very “subjective” way. Within the Metis holistic worldview, assessing the effects of Wuskwatim means assessing its effects on our culture. Such a cultural impact assessment is comprehensive and cumulative. We take the position that the effects of Wuskwatim will be layered onto everything that has gone before. This includes the effects on our way of life, economy and culture as a consequence of previous actions and developments.”

Manitoba Metis Federation. (2005), MMF Final Report.

and,

“In addition to mobility, the concept of cumulative effects is integral to an examination of relationships in this study. Together these considerations dictate a much broader scope of assessment than conventional approaches require and these facts were uncovered in detail in the body of this report.”

Manitoba Metis Federation. (2005), MMF Final Report.

And in a response letter dated November 16, 2005, to the proponents (attached), Al Benoit, MMF Senior Policy Advisor writes:

The “Project Area” v. the “Study Area” should not be confused. The Project Area is as defined in the EIS. The Study Area is not identical to the Project Area. That is because when the MMF began to gather evidence, it became clear that if the sample is limited to those who live in the Project Area, then the evidence will not sufficiently address the potential effects of the Projects on the Métis who use and occupy the Project Area. This is because many Métis who do not live in the Project Area are also users and occupiers of it. This, as we understand it, is a dramatically different picture than the one that is commonly understood for First Nations or even non-aboriginal users. While there are many reasons for this (reserves being one), the salient factor is this – Métis are highly mobile, have never been confined to reserves and carry out their traditional activities over a very large traditional territory. Traveling great distances to carry out their traditional activities is one of their primary cultural characteristics. This factor cannot be ignored. It would be ignored if the Study Area were confined to the Métis who live in the Project Area. MMF correctly adjusted its work to include Métis who use and occupy the Project Area but do not live there.

In addition to the Environmental Impact Statement not meeting the Wuskwatim guidelines, the MMF submits that the Environmental Impact Statement and subsequent Comprehensive Study Report do not meet the requirements in CEAA.

In the Canadian Environmental Assessment Act it states the following:

4. (1) The purposes of this Act are

(b) to encourage responsible authorities to take actions that promote sustainable development and thereby achieve or maintain a healthy environment and a healthy economy; (our emphasis)

and,

"sustainable development" means development that meets the needs of the present, without compromising the ability of future generations to meet their own needs. (our emphasis)

The MMF submits that the projects do not promote sustainable development and will not achieve nor maintain a healthy environment or a healthy economy for the Metis Nation. The Metis, as demonstrated in its Wuskwatim report, will accrue all the negative impacts while not receiving commensurate benefits. However, this statement may be true for NCN who do not currently use the area and stand to benefit through priority training and employment, an adverse effects agreement, and an equity position in the development.

As part of actions to promote sustainable development, the Act further states:

(b.3) to promote communication and cooperation between responsible authorities and Aboriginal peoples with respect to environmental assessment;

and,

(d) to ensure that there be opportunities for timely and meaningful public participation throughout the environmental assessment process.

Neither of these occurred between the MMF as the Metis Nation’s representative of the Manitoba Metis Community, and the responsible authorities. In various letters to Department of Fisheries and Oceans Minister Regan and his department, the MMF made it clear that there was no meaningful consultation process between the MMF and Department of Fisheries and Oceans, and that MMF participation, particularly the MMF Wuskwatim Pilot Project Study occurred outside the Environmental Impact Statement proper (Please see attached).

The Courts have held that there is a constitutional duty on the Crown to ensure that there is a meaningful process for aboriginal peoples. This is especially so where there is a credible claim that aboriginal rights exist. The MMF has given the Manitoba government and Canada notice of its harvesting rights claims in the study area. Further, there is a court finding from the Manitoba Court of Queen’s Bench that upholds the existence of Métis harvesting rights in Manitoba. (R. v. McPherson and Christie)

The Proponent notes that, under the CEAA, environmental effects include socio-economic effects cause by a change in the bio-physical environment which in turn is caused by the project, e.g., resource use or job losses due to a loss of fish habitat. However, if a socio-economic change is not caused by a change in the environment, but by something else related to the project (e.g., effects caused by employment or purchasing related to the project), the socio-economic effect is not an environmental effect within the meaning of the CEAA. (Pg. 26)

The MMF takes the position that this statement is deficient. The Act defines environment:

"environment" means the components of the Earth, and includes

(a) land, water and air, including all layers of the atmosphere,

(b) all organic and inorganic matter and living organisms, and

All people, including the Metis are part of the environment, specifically subsection (b), and that our culture is based in, and a result of, the interacting natural systems referred to in (c). It is the MMF’s assertion therefore that any effect of the project, regardless of whether defined correctly or erroneously by the proponent as an environmental or socio-economic effect, or a socio-economic effect caused by an environmental effect, or a socio-economic effect not caused by environmental effect, is still an effect on the Metis Nation and on their culture as part of the definition of the environment in the Act.

Finally, the MMF further asserts that even if CEAA does not agree with our assertion above, it is still within the power of the Minister to address these other adverse effects caused by the project on the Metis Nation. The Act further provides that:

16. (1) Every screening or comprehensive study of a project and every mediation or assessment by a review panel shall include a consideration of the following factors:

[…]

(e) any other matter relevant to the screening, comprehensive study, mediation or assessment by a review panel, such as the need for the project and alternatives to the project, that the responsible authority or, except in the case of a screening, the Minister after consulting with the responsible authority, may require to be considered. (our emphasis)

2. Lack of adequate consultation with the MMF to determine scope of study, adverse effects, mitigative and compensative measures, and accommodation of Metis rights infringements

At the earliest part of the planning stages of the proposed Wuskwatim Projects, the MMF have been left out and ignored. As early as 2001 a letter was sent to then Minister Responsible for Manitoba Hydro, Greg Selinger, stating that the MMF wanted to start discussions on anticipated future Hydro projects to determine how to involve the Metis Nation in such things as the EIS. That letter and several others have been ignored (Please refer to MMF submission to the CEC).

The MMF has made it known to Manitoba and the co-proponents that the Metis Nation has unextinguished Metis Aboriginal Title and Rights within the Wuskwatim Project Area. Referring to the Wuskwatim Generating and Transmission Projects, in a February 20, 2003, letter to the Honourable Tim Sale, Manitoba Minister Responsible for the Manitoba Hydro Act, MMF President David Chartrand stated: