Tataskweyak Cree Position


November, 21, 2001

Mr. Bob Cupit
Minnesota Department of Commerce
Energy Division
857th Place East, Suite 500
St. Paul, Minnesota 55101-2198
http://www.mnplan.state.mn.us

Re: Draft 2001 State Energy Planning Report

As solicitors for Split Lake Cree First Nation, also known as the Tataskweyak Cree Nation, a First Nation or tribe in northern Manitoba, we are providing written comment on the Draft 2001 State Energy Planning Report.

The draft report contains the following statement on page 48:

“Also significant is the fact that the Province of Manitoba needs to deal with internal issues regarding the environmental effect of flooding the amount of land needed to produce this power, and the impact of such plans on relations of the provincial government with Manitoba's native tribes.”

We are aware of comments made by an elected councillor of Pimicikamak Cree Nation, Mr. Kenney Miswagon, at a public hearing on the Draft Energy Plan held in St. Paul on November 13, 2001. Pimicikamak Cree Nation is the Cross Lake tribe located at Cross Lake in northern Manitoba. During his presentation, Mr. Miswagon stated that “Manitoba Hydro has made no secret of its desire to build more dams in the north to produce electricity for export.” He suggested that the Draft Energy Plan “must evaluate these new projects within the context of what Manitoba Hydro has already built. The environmental impacts are cumulative. We hope your energy plan will avoid making a bad situation worse.”

Mr. Miswagon also spoke about having provided information about impacts “in your regulatory proceedings since 1999,” and spoke about impacts that affect “all northern aboriginal peoples,” and suggested that the Pimicikamak Cree Nation would file comment in this matter.

In response to the material within the draft report and what we understand the position of Pimicikamak Cree Nation to be, we offer the following comment:

1. The Pimicikamak Cree Nation does not speak for Tataskweyak Cree Nation. This has been made clear before the Minnesota Public Utilities Commission, the Minnesota Environmental Quality Board, various public meetings involving the Arrowhead-Weston Transmission Line, held both in Minnesota and Wisconsin, and before the St. Paul Area Council of Churches. Neither Pimicikamak Cree Nation nor environmental groups within Minnesota should purport to speak on behalf of all northern aboriginal peoples. There are people who have been impacted in significant ways, but who have dealt with those impacts in different ways, and each speaks with their own voice.

2. The Tataskweyak Cree Nation does not agree with the position put forward by Pimicikamak Cree Nation in the state of Minnesota, to the extent that the Pimicikamak Cree Nation position attempts to stop the import of power by Minnesota from Manitoba Hydro.

3. Tataskweyak Cree Nation is an original signatory to the 1977 Northern Flood Agreement, together with Cross Lake (Pimicikamak Cree Nation), Nelson House, Norway House and York Factory. All five tribes suffered as a result of Manitoba Hydro mega projects, that were fully operational by 1976, and the tribes entered into the 1977 Northern Flood Agreement with Manitoba Hydro, the Government of Manitoba and the Government of Canada in order to address matters arising out of those mega projects.

4. After years of negotiation, Tataskweyak Cree Nation signed an Implementation Agreement with the Manitoba Hydro, the Province of Manitoba and the Government of Canada in 1992 implementing the provisions of the 1977 Northern Flood Agreement. Amongst many other things, the 1992 Agreement recognizes the right of Tataskweyak Cree Nation to co-manage with the Province of Manitoba the Split Lake Resource Management Area, within which, on the lower Nelson River, is a potential generating station site at Gull Rapids (Keeyask).

5. In October of 2000, Tataskweyak Cree Nation signed an Agreement in Principle with Manitoba Hydro whereby Tataskweyak Cree Nation established the right to explore a possible business relationship with Manitoba Hydro in respect of a possible development of a generating station at Gull Rapids (Keeyask), within the Split Lake Resource Management Area.

As Chief Evans of the Norway House Cree Nations said, in a paper presented to the 22nd Annual Canadian Studies Conference “Environment and Environmental Justice” in Grainau, Germany on February 16 - 18, 2001, the paper entitled “Impacts Associated with Hydro Electric Development in Northern Manitoba Canada - An Overview and Assessment of the Norway House Cree Nation Master Implementation Agreement”:

“We believe that as we are healing divisions in our community that were a result of development impacts, we have helped Manitoba Hydro as a Corporation find more effective ways of working in partnership with Aboriginal people. The willingness of the Cree at Split Lake to explore opportunities for business involvement with Manitoba Hydro in the Gull Rapids (Keeyask) hydroelectric project suggest that new relationships between the Cree and developers are possible;”

6. If the Gull Rapids (Keeyask) Generating Station is built, that will only occur after Tataskweyak Cree Nation has negotiated with Manitoba Hydro all provisions of a Joint Development Agreement, and the members of Tataskweyak Cree Nation, by ratification vote, approve the Joint Development Agreement. The matters to be addressed in a Joint Development Agreement include:

(a) a detailed project description;
(b) employment and training matters, including matters relating to construction jobs, ongoing jobs with Manitoba Hydro, and business opportunities;
(c) environmental matters, including the assessment of the Gull Rapids (Keeyask) Project, not only through the environmental legislation in place in the Province of Manitoba and Canada, but also using aboriginal knowledge. These process will require assessment, monitoring, mitigation, remediation and, where mitigation and remediation are not possible, monetary compensation for any adverse effects arising out of the Gull Rapids (Keeyask) Generating Station;
(d) ownership participation to provide for a long-term benefit to the equity partners, giving the opportunity to Tataskweyak Cree Nation to make use of the resources within its territory, in ways that will benefit future generations and move the local economy forward in the 21st century.

7. The Gull Rapids site is more than 120 miles downstream from Cross Lake, well outside Pimicikamak Cree Nation traditional territory, with an elevation drop on the river of over 180 feet from Cross Lake to the Gull Rapids (Keeyask) site. In addition, there is an existing dam on the Nelson River in between Cross Lake and the Gull Rapids (Keeyask) site, which is the Kelsey Generating Station, situated 20 miles upstream of the Split Lake Reservation. The construction at Gull Rapids (Keeyask) site and its operations would have no impact upon Pimicikamak Cree Nation. Approximately 18 square miles of land are planned to be flooded in the vicinity of Gull Rapids (Keeyask). As well, the Gull Rapids (Keeyask) Generating Station is proposed to be a run of the river plant, and so the current operating regime of the Jenpeg Control Structure, within the vicinity of Cross Lake, would not change. It is the understanding of Tataskweyak Cree Nation that whatever the current situation of Pimicikamak Cree Nation, the construction of a project at Gull Rapids (Keeyask) would not and could not affect the Pimicikamak Cree Nation.

8. Although Pimicikamak Cree Nation's representative, Mr. Miswagon, spoke about having provided information about impacts “in your regulatory proceedings since 1999”, the Minnesota Public Utilities Commission did not find a need to investigate the socioeconomic impacts of large hydroelectric generation, in a decision rendered by the Minnesota Public Utilities Commission, Docket E-002/M-99-888. In fact, at the hearing on November 30, 2000, after Pimicikamak Cree Nation lawyers tried to make the case that there were socioeconomic costs arising out of Manitoba Hydro mega projects that should be investigated by the Minnesota Public Utilities Commission, Chairman Gregory Scott, in finding against the Pimicikamak Cree Nation position, stated:

“But I also don't have any problem in this docket saying that the socioeconomic costs are zero. And I can say that because of the existence of the 1977 Agreement (the Northern Flood Agreement). The Canadian Government and the tribal leaders decided what the appropriate trade-offs were for their people. And for me to come in now and substitute my judgment would be sheer lunacy, as far as I am concerned. And to pretend like the consequences were unknown or surprising or something nobody thought of doesn't make any sense to me because I have the 1977 Agreement in front of me, and let me read you a little bit of the first page in the whereas clauses:

'Whereas, Hydro and Manitoba are engaged in a development of hydroelectric power through projects commonly known as the Lake Winnipeg Regulation and Churchill River Diversion Projects; As a result of the projects the water regime of certain waters, rivers, lakes and streams has been or will be modified; As a result of the modification (of the water regime) adverse effects have occurred, and may continue to occur on the lands, pursuits, activities and lifestyles of the residents, individually and collectively, of the reservations of Cross Lake, Nelson House, Norway House, Split Lake and York Landing; The parties wish to ensure that all persons as defined herein who may be, have been, directly or indirectly adversely affected by the projects shall be dealt with fairly and equitably;'

And here's really a key one:

'Uncertainty as to the effects of the project with respect not only to the project as it exists at the date of this agreement, but also as it may develop in the future, is such that it is not possible to foresee all the adverse results of the project, nor to determine all those persons who may be affected by it and therefore it is desirable to establish through the offices of a single arbitrator a continuing arbitration instrument to which any person adversely affected may submit a claim. . . '

blah, blah. This was thought about, folks. This is not new.

So I can look at this and say because Pimicikamak Cree Nation is a party to this agreement that contemplated these issues and provided vehicles for a dispute resolution, compensation, I have no trouble saying socioeconomic costs are zero. The fact that Pimicikamak Cree Nation is having difficulty getting this document enforced is something that I sympathize with, but I cannot, in my position as a Commissioner of this Commission, decide that the dispute is something that I should make sure that I make my vote in such a way to help them out and give them some leverage. I just can't do that.

I think in three and a half years – I spent 12 years as a trial lawyer and three and a half years on the Commission. I don't know that I've ever heard testimony more effective than Chief Primrose's* testimony was today. It was about as direct and relevant and simple as a person can speak, and it was powerful. I thought it was very powerful, a very powerful perspective. The flip side of the coin. And I keep sitting here wondering to myself, if one tribe can figure it out so well, and Split Lake too, if it can be figured out as well as these folks have figured it out, why can't Pimicikamak Cree Nation figure it out that way? There's such a big issue out there that I just – for me to step into it I think as a Commissioner just doesn't make any sense.”

(*Note: Chief Primrose is the Chief of Nelson House First Nation (Nisichawaysihk Cree Nation), who are considering a business relationship with Manitoba Hydro for the possible development of two generating stations within the Nelson House Resource Management Area)

9. Transmission from the site at Gull Rapids (Keeyask) would not require the passage of any transmission lines over the traditional territory of Pimicikamak Cree Nation and therefore would not impact Pimicikamak Cree Nation.

10. Tataskweyak Cree Nation respects the rights of Pimicikamak Cree Nation to have the 1977 Northern Flood Agreement implemented, and to do so in a manner that Pimicikamak Cree Nation sees fit. Pimicikamak Cree Nation is free to choose any one of a number of paths: it may negotiate an Implementation Agreement as Tataskweyak Cree Nation and three other tribes have done; it may arbitrate claims under the 1977 Northern Flood Agreement; it may sit at the table with Manitoba Hydro, Canada and Manitoba to attempt to satisfactorily implement provisions of the 1977 Northern Flood Agreement, as we understand Pimicikamak Cree Nation has been doing for the past few years; or Pimicikamak Cree Nation may find other means to implement its rights under the Northern Flood Agreement.

However, the tactic of Pimicikamak Cree Nation attempting to persuade Minnesotans not to purchase power from Manitoba Hydro, in order to provide leverage in their negotiations, is not a tactic with which Tataskweyak Cree Nation can agree. The pursuit of that tactic could result in direct harm to Tataskweyak Cree Nation, which has used the resources in its territory since time immemorial to support its people. It is the position of Tataskweyak Cree Nation that Tataskweyak Cree Nation has the right to consider a development at Gull Rapids (Keeyask), and after careful consideration, if appropriate, to participate in a development that could harness the resources in its territory and provide for and sustain future generations of the Tataskweyak Cree Nation, in a meaningful and respectful way -- a way that would not cause any further harm to or affect the situation of the Pimicikamak Cree Nation.

Thank you for the opportunity to provide comment on the Draft 2001 State Energy Planning Report. If questions arise from these comments, we would be pleased to discuss issues further with the Department.

Yours truly,
Campbell, Marr
Per:
Douglas J. Mackenzie,
Solicitor for Tataskweyak Cree Nation
at Split Lake, Manitoba

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