BRITISH COLUMBIA UTILITIES COMMISSION IN THE MATTER OF THE UTILITIES COMMISSION ACT S.B.C. 1996, CHAPTER 473. And

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Allwest Reporting Ltd.

BRITISH COLUMBIA UTILITIES COMMISSION

IN THE MATTER OF THE UTILITIES COMMISSION ACT S.B.C. 1996, CHAPTER 473

And

RE: BCTC ILM CPCN

COURT OF APPEAL RECONSIDERATION

BEFORE:

A.J. Pullman, Chairperson

A.A. Rhodes, Commissioner

P.E. Vivian, Commissioner

VOLUME 13

PROCEEDINGS

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T. OLDING

A.W. CARPENTER C. WILLMS

D. CURTIS K. GRIST

British Columbia Transmission Corporation

K. BERGNER M. JONES

British Columbia Hydro and Power Authority

P. YEARWOOD Ministry of Attorney General for B.C.

M.A.K. MUIR A. GROVE

Hwlitsum First Nation

G. McDADE, Q.C. M. SKEELS

Kwikwetlem First Nation

T. HOWARD B. STADFELD

Nlaka'Pamux Nation Tribal Council (NNTC), the Okanagan Nation Alliance (ONA) and the Upper Nicola Indian Band

M. KIRCHNER M. SKEELS

Cold Water, Cooks Ferry, Ashcroft and Siska Indian Band

M. UNDERHILL R. HEASLIP

Sto:Lo Tribal Council and Seabird Island First Nation J. QUAIL

B.C. Old Age Pensioners' Organization, Active Support Against Poverty, B.C. Coalition of People with Disabilities, Council Of Senior Citizens' Organizations of B.C., the Tenant Resource and Advisory Centre, End Legislated Poverty, Terrace Anti-Poverty Group (BCOAPO)

B. HARRIS A. CASSELMAN D. HARRIS

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 CAARS VANCOUVER, B.C. January 25th , 2010 (PROCEEDINGS RESUMED AT 9:05 A.M.)

THE CHAIRPERSON: Please be seated.

Mr. Bergner, you're on your feet. MR. BERGNER: I am, merely with a small matter of

housekeeping to attend to. We have one undertaking response to file. This arose at Volume 8, page 1122 of the transcript, where my friend Mr. Stadfeld

questioning on behalf of the NNTC asked for production of any notes in respect of the May 6, 2007 meeting. And we have that to file.

That would be Exhibit B-30. THE CHAIRPERSON: Three-zero?

MR. BERGNER: Yes.

THE CHAIRPERSON: Thank you.

(BCTC/B.C. HYDRO UNDERTAKING RESPONSE, TRANSCRIPT REFERENCE VOLUME 8, PAGE 1122, LINES 11 TO 25, MARKED AS EXHIBIT B-30)

THE CHAIRPERSON: Mr. Howard, good morning.

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cross-examination of the witness panel on behalf of the Upper Nicola Indian Band and Okanagan Nation

Alliance, and my clients have requested that, prior to the panel being affirmed, Elder Lou Paul, who has

attended here today, will provide an opening statement that will consist of a prayer and a reading into the record in Okaganan of a document that has already been entered in evidence and, for the record, it is

attachment B to Exhibit C5-8-1. It is entitled

"Okanagan Nation Declaration", and the document itself provides an Okanagan and English translation of the declaration. We then propose that after Mr. Paul has done that, he will excuse himself. The panel will then be affirmed and cross-examination will commence. THE CHAIRPERSON: Please begin.

MR. HOWARD: Mr. Paul.

MR. PAUL: [non-English language]

Proceeding Time 9:10 a.m. T2 THE CHAIRPERSON: Thank you.

OKANAGAN NATION ALLIANCE AND UPPER NICOLA INDIAN BAND PANEL:

CHIEF TIM MANUEL, Affirmed: CHIEF DANIEL MANUEL, Affirmed: GWEN BRIDGE, Affirmed: EXAMINATION IN CHIEF BY MR. HOWARD:

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with the aspect of the opening statement more than the actual substance of adopting the direct evidence. If I could ask each of you in turn -- pardon me.

Chief Manuel, you’ll recall that some

direct evidence was prepared on your behalf and if my friend could be so kind as to assist with an exhibit reference, C5-19. I apologize for my failure to have this at my fingertips. What I’m going to do is

provide the witnesses with a copy of the direct

evidence just so that they’re familiar with what it is I’m referring to and then I’m going to ask them each to adopt it.

Chief Manuel, you have in front of you your direct testimony? Do you see that, sir?

CHIEF T. MANUEL: A: Yes.

MR. HOWARD: Q: And do you adopt it as your evidence before this Commission?

CHIEF T. MANUEL: A: Yes.

MR. HOWARD: Q: Councillor Dan Manuel, you have before you your direct evidence in writing.

COUNCILLOR D. MANUEL: A: Yes.

MR. HOWARD: Q: And do you adopt it as your evidence before this Commission?

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MR. HOWARD: Q: So you would add to your title interim director of community services. Thank you.

Otherwise, is the evidence otherwise correct and do you otherwise adopt it?

COUNCILLOR D. MANUEL: A: Yes.

MR. HOWARD: Q: And Ms. Bridge, you have before you your direct testimony, in writing, and do you direct it as your -- pardon me, do you adopt it as your evidence before this Commission?

MS. BRIDGE: A: Yes.

THE CHAIRPERSON: Good morning, Mr. Bergner.

MR. BERGNER: Good morning, again. Just before we begin, there is some additional housekeeping to attend to. As is becoming customary, we’ve prepared a binder of documents of previously filed exhibits. A copy was provided to my friend, I believe on Friday, and I see the witnesses have their copies already. Again I would propose to mark only the index as the exhibit, which would be Exhibit B-31 -- sorry, C3-31, with apologies to BCTC.

THE CHAIRPERSON: Do you want to change the number of the last exhibit you gave?

MR. BERGNER: Yes, C3-30 would be the appropriate exhibit number.

THE CHAIRPERSON: Mr. Fulton.

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as my last exhibit number in the C3 category from Thursday is C3-40.

MR. BERGNER: I stand corrected.

MR. FULTON: So the meeting notes, May 6th

, 2007 should be C3-41 and the index of documents C3-42.

THE CHAIRPERSON: Thank you, Mr. Fulton.

(EXHIBIT B-30, BCTC/B.C. HYDRO UNDERTAKING RESPONSE, TRANSCRIPT REFERENCE VOLUME 8, PAGE 1122, LINES 11 TO 25 RE-MARKED AS EXHIBIT C3-41)

(INDEX OF DOCUMENTS USED IN CROSS-EXAMINATION OF UNIB AND ONA PANEL BY B.C. HYDRO, MARKED EXHIBIT C3-31) MR. BERGNER: I will endeavour to get the next exhibit

numbers right.

Proceeding Time 9:16 a.m. T03 THE CHAIRPERSON: It must be the shock of having a

C-designation rather than the B.

MR. BERGNER: Indeed. Uncustomary as it is. THE CHAIRPERSON: Right.

MR. BERGNER: I do, as before, have a list of the exhibits I'll be perhaps referring to. The vast majority will be contained in the binder but as a matter or prudence there are a few others. The first is the Upper Nicola/ONA direct evidence -- filed

evidence, C5-8-1, and for the benefit of the

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Also contained in that binder are the IR responses, which we can turn to if necessary. The direct evidence, which was affirmed just a moment ago, C5-19, and I don't believe I'll need to go to them, but in case we do, the consultation log, 4-1 and B-4-2. I don't believe we'll need to go there, but just in case. And the narratives B11 and B12, starting at pages 96 et seq. and page 154 et seq., as appropriate. THE CHAIRPERSON: Just before you begin, I should ask the

Hearing Officer to get us, the three Panel members, copies of C5-19. We do not have the direct evidence of this panel.

MR. BERGNER: The direct evidence. That would be appropriate, as that's where I plan to start.

THE CHAIRPERSON: I thought you might. Please proceed. CROSS-EXAMINATION BY MR. BERGNER:

MR. BERGNER: Q: Good morning, Chief Manuel, Council Manuel, Ms. Bridge. If I could ask you to turn to the document your counsel took you to a moment ago, the direct evidence, if you still have that. Exhibit C5-19. That's the one, the single page. And I'd just like to confirm a number of items on there, or clarify a number of items. You indicate in the second answer, you've held the position of chief of the Upper Nicola Band since 2006. Can I ask you what month in 2006? CHIEF T. MANUEL: A: May. May the 1st

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MR. BERGNER: Q: May the 1st

, thank you. And I understand previous to that you were elected

councillor for the first time in 2000, and re-elected subsequently as councillor.

CHIEF T. MANUEL: A: In 2004, yes.

MR. BERGNER: Q: Yes. And so there was no gap between your role as councillor and your role as chief. CHIEF T. MANUEL: A: No.

MR. BERGNER: Q: Your role as councillor ended, and you moved to chief. Thank you. And I believe this is probably clear, but I -- just to confirm, that's an elected position from the membership of the Upper Nicola Band.

CHIEF T. MANUEL: A: Yes.

MR. BERGNER: Q: And your role and responsibility as Chief includes the responsibility to meet with elders on a regular basis and update them on council business and other matters. Is that a fair statement?

CHIEF T. MANUEL: A: Yes.

MR. BERGNER: Q: And as well it would include when you receive information or participate in discussions in your capacity as chief, you would -- a part of your responsibility would be to carry that back to council where appropriate and to report to council.

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MR. BERGNER: Q: Thank you. Councillor Manuel, if I can ask you to turn to your direct evidence, also C5-19.

COUNCILLOR D. MANUEL: A: Yes.

MR. BERGNER: Q: And just to clarify the correction you gave a moment ago, you said you should also be listed as interim director of community services. Is that correct?

COUNCILLOR D. MANUEL: A: Yes.

MR. BERGNER: Q: Now, was that in replacement of the reference to public works manager, or in addition?

Proceeding Time 9:20 a.m. T04 MR. BERGNER: Q: Okay. So in instead of public works

manager, it should read interim director of community services.

COUNCILLOR D. MANUEL: A: Yes.

MR. BERGNER: Q: Thank you. And it indicates you have held the position of councilor of the Upper Nicola Band since 2006. Is it also May, 2006?

COUNCILLOR D. MANUEL: A: Yes.

MR. BERGNER: Q: And that similarly is an elected position?

COUNCILLOR D. MANUEL: A: Yes.

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appointed position or an elected position?

COUNCILLOR D. MANUEL: A: It's an appointed position, so it's not -- it's a competitive -- it's an

employment position. I'm employed by the Band.

MR. BERGNER: Q: Thank you. So the hiring decision for that position, is it made by Chief and Council?

COUNCILLOR D. MANUEL: A: No, it's made by the director of operations.

MR. BERGNER: Q: Okay. Which is the director of operations is answerable to chief and council? COUNCILLOR D. MANUEL: A: Yes.

MR. BERGNER: Q: Or works for Chief and Council. Thank you. And the other position mentioned, Chair of the Okanagan Nation Alliance Natural Resources Committee, is that an elected or an appointed position, or an employment position?

COUNCILLOR D. MANUEL: A: I'm appointed to the natural resource committee by the Council of the Upper Nicola Band. And selected among my peers at that committee as the chair.

MR. BERGNER: Q: Thank you. So the appointment comes from the Band.

COUNCILLOR D. MANUEL: A: Yes.

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COUNCILLOR D. MANUEL: A: Yes.

MR. BERGNER: Q: Thank you. And when did that position start?

COUNCILLOR D. MANUEL: A: Well, I've been a member of the committee since June of 2006, and chair of the committee since November of 2009.

MR. BERGNER: Q: Okay. So for the period -- COUNCILLOR D. MANUEL: A: Oh, yes.

MR. BERGNER: Q: The period -- we're primarily focused on August of 2006 to August, 2008. You were a member of the committee.

COUNCILLOR D. MANUEL: A: Yes.

MR. BERGNER: Q: But not the chair. COUNCILLOR D. MANUEL: A: Yes.

MR. BERGNER: Q: Thank you. And returning to your role as councillor, when you -- is it fair to say when you receive information or participate in meetings, you would, where appropriate, carry that back to report to Chief and Council.

COUNCILLOR D. MANUEL: A: Yes, at a regular council meeting.

MR. BERGNER: Q: Thank you. And you mentioned regular council meetings -- are council meetings monthly, bi-monthly, how often would they happen?

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MR. BERGNER: Q: Okay, thank you.

COUNCILLOR D. MANUEL: A: Sometimes there is other circumstances that don't allow us to meet, so -- MR. BERGNER: Q: Fair enough. Ms. Bridge, we can turn

to you. And again, if you had your direct evidence in front of you, it mentions you are the natural

resources manager for the Okanagan Nation Alliance. Is that correct?

MS. BRIDGE: A: Yes.

MR. BERGNER: Q: And is that an appointed or an elected position?

MS. BRIDGE: A: It's a position in which I was hired. I'm not an elected person.

MR. BERGNER: Q: Thank you. And so you're speaking generally, you don't hold an elected position with any of the --

MS. BRIDGE: A: I hold no elected position with the Okanagan Nation Alliance.

MR. BERGNER: Q: Thank you. Are you a member of any of the --

MS. BRIDGE: A: I'm a member of Saddle Lake Cree First Nation, which is out of Alberta. And I work for the Okanagan Nation Alliance.

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Councillor Manuel chairs?

MS. BRIDGE: A: The natural resource manager

facilitates technical work to provide information to the natural resource council, who then makes

recommendations to the Chief's executive council. MR. BERGNER: Q: Thank you. And in your capacity as natural resources manager for the ONA, if I can call it that, it would similarly be part of your

responsibility that if you participate in meetings or receive information, you would carry that back to -- who? To the ONA, or to the member communities, or both?

MS. BRIDGE: A: If I receive information and there is a process internally amongst staff of prioritization of information, I report both to the executive director of the Okanagan Nation and I also provide information to the natural resource committee, information that's of a technical nature.

MR. BERGNER: Q: And that's the natural resource committee that Councillor Manuel chairs now. MS. BRIDGE: A: Yes.

MR. BERGNER: Q: And was a member of before. Yes? MS. BRIDGE: A: Yes.

Proceeding Time 9:25 a.m. T5 MR. BERGNER: Thank you. If we could turn to the

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that's open in front of Chief Manuel. And I do promise I won’t go through every paragraph, but I would like to start with the first paragraph and just ask a number of clarifications.

In the first paragraph, the second sentence states that Upper Nicola Indian Band “is the only

Okanagan Band in the Nicola watershed”. Do you see that? It’s in the second sentence? Do you have that? CHIEF T. MANUEL: A: Yes.

MR. BERGNER: Q: What I wanted to ask is, when it says the only Okanagan Band, am I correct in understanding that the other Okanagan Bands not in the Nicola

watershed are the six other members of the Okanagan Nation Alliance?

CHIEF T. MANUEL: A: Yes.

MR. BERGNER: Q: I understand those are the -- I guess they’re listed in the second paragraph, the Lower Similkameen, Okanagan, Osoyoos, Penticton, Upper Similkameen, and Westbank?

CHIEF T. MANUEL: A: Yes.

MR. BERGNER: Q: I see you nodding. For the benefit of the court reporter we need a verbal yes or no.

I’m not sure who might answer this

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MS. BRIDGE: A: Yes, it’s a society.

MR. BERGNER: Q: And it’s referred to in the second paragraph as a contemporary political organization. I understand the society was formed -- well can you tell me when the society was formed? I believe it was

1987?

MS. BRIDGE: A: I think it’s in the record, if I recall, but it’s around that time period.

MR. BERGNER: Q: Now, in the third paragraph, and again I promise I’m not going to touch on every one; but in the third paragraph it refers to the Okanagan Nation. It says

"The Okanagan Nation is an aboriginal cultural and political social entity…"

Am I correct that when it’s referring to the Okanagan Nation it means the six Bands -- sorry, the six member Bands of the ONA plus the Upper Nicola Indian Band? CHIEF T. MANUEL: A: Yes.

MR. BERGNER: Q: Thank you. And there’s a reference also in that third paragraph to the Okanagan

territory. So I take it that refers to the territory of the six members of the ONA and the Upper Nicola Indian Band?

CHIEF T. MANUEL: A: Yes, as outlined in the map. MR. BERGNER: Q: Thank you for that. And there is a

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I’ve provided a colour copy of a map to your counsel last week and I see you have one in front of you.

Well first let me confirm; when there’s a reference to the Okanagan territory, is that the map of the Okanagan territory that you’re referring to? CHIEF T. MANUEL: A: Yes, it is.

MR. BERGNER: If I could have that marked as the next exhibit.

MS. BRIDGE: A: If I could add to that as well, this map is a current draft map and the natural resource land use team, of which I’m natural resource manager, is in a process of a strategy of developing more

comprehensive research that will support the ongoing revision of this draft map to be more representative of the knowledge base as it’s held within the

community members. So we have a five-pronged research strategy for collecting cultural information.

One of the pillars of that five, of those five pillars is boundary research. So this is an evolving ongoing process of research to improve the delineation of the territory over time. This reflects the state of the knowledge at this time for the

Okanagan Nation technical work. It doesn’t reflect the community members’ comprehensive understanding of their own territory.

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few statements in there you made. You said this is ongoing work. I take it this is ongoing currently now?

MS. BRIDGE: A: We work on this as budget allows and as projects are developed to support this work.

MR. BERGNER: Q: So, I printed this map from the website Saturday. So as it stood Saturday this was the map publicly available, is that correct?

MS. BRIDGE: A: It is.

MR. BERGNER: Q: And this was the map that I believe was publicly available in the time period we’re

talking about, of August 2006 to August 2008, is that correct?

MS. BRIDGE: A: Yes.

MR. BERGNER: Q: Thank you. C3-43.

(COLOURED MAP ENTITLED "OKANAGAN NATION TRADITIONAL TERRITORY", MARKED EXHIBIT C3-43)

Proceeding Time 9:30 a.m. T06 MR. BERGNER: Q: And actually I'm just noticing this

now, but the text at the bottom of the map, it starts near the end of the fourth line and carries on to the fifth, and in describing the boundaries, it says:

"…the western border extended into the Nicola Valley."

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MR. BERGNER: Q: And in your evidence, in paragraph 3, in the sixth line down, it says:

"…the western boundary extends to the west of the Nicola Valley."

Is it into the Nicola Valley, as indicated here? CHIEF T. MANUEL: A: Upper Nicola is part of the Nicola

Valley and the Nicola watershed, so it extends into the Nicola Valley.

MR. BERGNER: Q: Thank you. If we could turn to

paragraph 25 of the evidence that's before you, that's on page 8. And we might have to do some page flipping here, but let's see if we can get through this first without. That paragraph, it's the one that starts:

"For Upper Nicola and the ONA, the central issues regarding consultation on the

proposed ILM expansion project includes …"

And then goes on to describe the issue. We can turn to if you like, but can we agree that in the filed evidence of the NNTC, the Nlaka'pamux Nation Tribal Council, there is a virtually identical paragraph that refers to the NNTC?

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MR. BERGNER: That's fine. I'll -- my only reason in stating that is this. The NNTC were asked an

Information Request in respect of that paragraph in their evidence, and in response they made a

correction. By inadvertence, the same IR was not asked of the Okanagan Nation Alliance/Upper Nicola panel. My purpose in asking these questions was simply to confirm whether or not the same correction should be made to this paragraph in the Upper Nicola evidence.

MR. HOWARD: The witnesses are not familiar with NNTC's record, and so if my friend has questions on the

paragraph, I think the best thing for him to do is put the questions forward and the witnesses can answer them.

THE CHAIRPERSON: Give it a try, Mr. Bergner.

MR. BERGNER: Q: Yes. I will read the correction that is made by NNTC in respect of the similar paragraph, and my question for you is going to be --

THE CHAIRPERSON: Do you have a reference?

MR. BERGNER: Q: Yes. The correction appears at Exhibit C5-10, page 4. That's the response to an Information Request from B.C. Hydro, IR 4.1. And I can --

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MR. BERGNER: Yes, certainly.

Q: It's tab 10 in the binder that's in front of you, Chief Manuel. Yes, if you can keep your finger on that other page, and it's page 4 at tab 10. And there's an item marked 4.1. And it refers to a similar paragraph in NNTC's evidence. And then the response that's given is as follows.

"NNTC corrects the statement made at

paragraph 26 of NNTC's written evidence. The central issue identified was the scope of consultation concerning either the UEC or the ILM Expansion Projects alternative, and in particular the necessity to consult

regarding the existing and ongoing impact of B.C. Hydro's facilities in the Nlaka'pamux territory.

Do you see that reference? CHIEF T. MANUEL: A: Yes.

Proceeding Time 9:36 a.m. T7 MR. BERGNER: Q: Again, we didn’t ask the same

information request of the ONA/Upper Nicola, but I’d like to pose the same question to you now and ask whether you would make a similar correction to that made by the NNTC?

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MR. BERGNER: Q: Certainly, certainly. Having seen the correction made by the NNTC my only question is, being asked the same question in respect of your evidence would Upper Nicola and ONA like to make the same correction to their evidence? Is your position in respect of the central issues here the same as clarified by NNTC in this paragraph?

MS. BRIDGE: A: I think that we wouldn’t say that we’re concerned about issues of B.C. Hydro generally over the Nlaka’Pamux’s territory.

MR. BERGNER: Q: No, I appreciate that. With the

appropriate changes, your evidence refers to the Upper Nicola and ONA concerns, and the Upper Nicola and

ONA’s territory. So with those changes are your central issues the same?

MS. BRIDGE: A: Can you clarify what the central issues are --

MR. BERGNER: Q: Yes.

MS. BRIDGE: A: -- in your question?

MR. BERGNER: Q: Yes. The central issue identified was the scope of consultation concerning either the UEC or ILM Expansion Projects alternatives and in particular the necessity to consult regarding the existing and ongoing impacts of B.C. Hydro facilities in Upper Nicola and ONA territory.

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to the issue at hand, we’re concerned with the scope of consultation on the alternatives of options for the ILM project.

MR. BERGNER: Q: Okay, that’s very slightly differently from the way that answer put it. What I’m trying to determine is whether the positions are the same or whether the positions are different. If the positions are the same, I’m simply seeking to clarify whether you would make the same clarification that NNTC made. If the positions are different, I want to explore that further.

MS. BRIDGE: A: From ONA perspective, upon review of the issues related to the ILM, they’re related to the ILM as reviewed by the Okanagan Nation and the scope of alternatives presented on that issue.

MR. BERGNER: Q: I think we have that clear. Let’s move on.

Chief Manuel, when communication with B.C. Hydro began in the summer of 2006, I understand that at that time Upper Nicola was a member of the Nicola Tribal Association, the NTA, is that correct?

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century, the Reserves, and geographically we were put into the Nicola district, upon which we certainly have relations in the valley but in 2006 we approached this from a Nation perspective, Okanagan Nation

perspective.

Proceeding Time 9:41 a.m. T08 MR. BERGNER: Q: Okay, could I ask you to turn to Tab 5

of the small black binder; the other one. This is a set of notes, it's from Exhibit B3-1, the supplemental evidence, Appendix R. And it's notes of a meeting, and I think this was cleared up in my friend's cross-examination earlier. It's dated January 10, 2006, but I believe the correct date is January 10, 2007. Do you recall this meeting?

CHIEF T. MANUEL: A: Yes, I do.

MR. BERGNER: Q: And Ms. Holland, the project director from BCTC, is in attendance, and Mr. Charles

Littledale from B.C. Hydro are in attendance. Is that correct?

CHIEF T. MANUEL: A: Yes, it is.

MR. BERGNER: Q: And the reason for my question was, in the first line of those notes, it says this:

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And so, my question was, in 2006, and early 2007, was Upper Nicola a member of the NTA as well as the ONA? COUNCILLOR D. MANUEL: A: I could just answer that. It

would be yes.

MR. BERGNER: Q: Thank you. And Chief Manuel, I

understand you attended the Nicola Tribal Association Annual General Meeting in October of 2006. Is that correct?

CHIEF T. MANUEL: A: Yes. Yes.

MR. BERGNER: Q: And just before we move on, can I clarify -- is Upper Nicola still a member of NTA? Or let me restrict my question. Prior to August of 2008, did the membership in NTA change or come to an end? CHIEF T. MANUEL: A: No.

COUNCILLOR D. MANUEL: A: No.

MR. BERGNER: Q: No. So throughout the period Upper Nicola up to August, 2008, continues to be a member of NTA?

COUNCILLOR D. MANUEL: A: Yes. CHIEF T. MANUEL: A: Yeah. MR. BERGNER: Q: Thank you.

MS. BRIDGE: A: I'd just like to add, the ONA has

always supported and ensured that Upper Nicola Indian Band is supported as a member of the Okanagan Nation. MR. BERGNER: Q: The membership in ONA also similarly

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2006 to August, 2008, is that correct? CHIEF T. MANUEL: A: Yes.

MR. BERGNER: Q: And membership in the ONA, are there regular meetings of the ONA?

CHIEF T. MANUEL: A: Chief's executive meetings? Yes. Yes.

MR. BERGNER: Q: Yes. And how often would those occur, more or less?

CHIEF T. MANUEL: A: Oh, once a month, bi-monthly as time allots, because of the chiefs' busy schedule. MR. BERGNER: Q: Thank you. And so during the period

we're talking about, from mid-'06 to '08, is Upper Nicola participating in those ONA meetings?

CHIEF T. MANUEL: A: Yes.

MR. BERGNER: Q: And similarly participating in NTA meetings?

COUNCILLOR D. MANUEL: A: Yes.

MR. BERGNER: Q: Thank you. If we could return to the January 10 minutes we were looking at a moment ago, that's at tab 5 in the black binder, the second paragraph states this.

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Is it fair to say Upper Nicola was expressing a view that Upper Nicola should be dealing directly with B.C. Hydro?

CHIEF T. MANUEL: A: Well, you deal with Upper Nicola as well as the Nation. Okanagan Nation.

MR. BERGNER: Q: And there was, I understand, a slide presentation or a PowerPoint presentation given at this meeting. Do you recall that?

CHIEF T. MANUEL: A: Yeah. From B.C. Hydro. MR. BERGNER: Q: Yes.

CHIEF T. MANUEL: A: Yes.

MR. BERGNER: Q: Yes. And in addition, there was presentation and discussion of a capacity -- an

initial capacity funding letter and a draft capacity funding agreement. Do you recall that?

CHIEF T. MANUEL: A: At this meeting?

MR. BERGNER: Q: Yes. I can refer you to the third paragraph.

"Chief Manuel listened to the presentation and took the initial capacity funding letter and draft capacity funding agreement." CHIEF T. MANUEL: A: Yes, yes. Correct.

MR. BERGNER: Q: Thank you. And I understand there was -- there is reference to a council meeting the next day.

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information to the Council meeting the next day (January 11, 2006)."

Do you see that?

Proceeding Time 9:46 a.m. T9 CHIEF T. MANUEL: A: Yup.

MR. BERGNER: Q: And in your role as Chief is that

something you did? You took that information back for consideration by the full Council?

CHIEF T. MANUEL: A: Any information like this that certainly affects the Band is required to take back to the Council for further discussion and further mandate to proceed.

MR. BERGNER: Q: Thank you. Further down those notes I’d just like to again clarify a few things; in the second-last paragraph, the last sentence, it states:

"Chief Manuel suggested that the AGM in September/October, 2007 would be a good opportunity."

Am I correct in understanding that’s a reference to the Nicola Tribal Association AGM for 2007?

CHIEF T. MANUEL: A: Yup. Yes.

MR. BERGNER: Q: And, thank you, and so the AG -- the Annual General Meeting, there was one in October 2006 we talked about, and this is a reference to the next one, October 2007?

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MR. BERGNER: Q: The next paragraph:

"Chief Manuel suggested that George

Saddleman, chairman and acting CEO of the NTA, could set up the next meeting with all the Chiefs."

First let me clarify; George Saddleman, I understand, is a member of the Upper Nicola, is that correct? CHIEF T. MANUEL: A: Yes.

MR. BERGNER: Q: And at the time he’s acting CEO of the Nicola Tribal Association?

CHIEF T. MANUEL: A: Yes.

MR. BERGNER: Q: And when it’s referring to setting up a meeting with all the Chiefs, would that be the

Chiefs of the NTA?

CHIEF T. MANUEL: A: Yes.

MR. BERGNER: Q: Thank you. And there was discussion of a meeting, do you recall, there was a meeting arranged for some weeks later, around January 26th

, 2007? And perhaps if I describe it further maybe it will assist with the memory.

There was a meeting arranged where B.C. Hydro and BCTC, including a Mr. John Irving, came to attend a meeting with the NTA Chiefs and when they arrived Mr. Saddleman advised them that the Chiefs were not ready to meet. Do you recall that?

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 think --

MR. BERGNER: Q: The meeting never took place.

CHIEF T. MANUEL: A: Yeah. I very vaguely remember it, but yeah, I think I do remember that, yup.

MR. BERGNER: Q: Thank you. Moving ahead in the chronology somewhat, do you recall a meeting on or about June 14, 2007? And again let me -- unless you recall that date specifically let me try and help you. On about June 14, 2007 Upper Nicola met with other

First Nations and discussed the issues of mutual

concern and in particular that it was an expansion of an existing transmission system? Is this --

CHIEF T. MANUEL: A: I don't remember.

COUNCILLOR D. MANUEL: A: I think you’re in the affidavit of Chief Manuel?

MR. BERGNER: Q: Yes. If it assists, I provided your counsel earlier, it’s an affidavit of Chief Timothy Manuel, number 1, sworn November 4, 2009 in a

different proceeding. Paragraph 42. CHIEF T. MANUEL: A: 42.

MR. BERGNER: Q: Page 12. CHIEF T. MANUEL: A: Okay.

MR. BERGNER: Q: And the meeting is referred to in the second sentence, on the third line,

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project. At that meeting discussed issues of mutual concern…"

Skipping a few words:

"…in particular that it was an expansion of the existing transmission system …"

Skipping down to the next line, "Arising from that meeting --”

Well, first of all let me pause there. Do you recall this meeting now, having seen this

reference in your affidavit?

Proceeding Time 9:51 a.m. T10 CHIEF T. MANUEL: A: I think -- to my memory, I've sent

the technical individual to that meeting. MR. BERGNER: Q: So you were not in --

CHIEF T. MANUEL: A: I don't recollect being at this meeting.

MR. BERGNER: Q: Okay. Councillor Manuel --

CHIEF T. MANUEL: A: So it could have been a technical -- were sent to collect information.

MR. BERGNER: Q: Okay. Councillor Manuel, do you recall whether you attended this meeting?

COUNCILLOR D. MANUEL: A: I believe I was in attendance. Not --

MR. BERGNER: Q: Okay. I --

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COUNCILLOR D. MANUEL: A: I just want to --

MR. BERGNER: Q: Fair enough. But first, let's clarify a few basic facts. As I read this, this is a meeting amongst the First Nations, not a meeting with BCTC or B.C. Hydro. Is that correct?

COUNCILLOR D. MANUEL: A: Yes.

MR. BERGNER: Q: And the affidavit states:

"Arising from that meeting, we determined that any consultation regarding the ILM expansion project needed to include a consideration of the existing and ongoing future impacts."

And so, I'm just seeking to confirm, is that something that arose from that meeting? Or at that meeting? COUNCILLOR D. MANUEL: A: I would say that it's -- that

the meeting affirmed a mutual understanding amongst those in attendance, that the existing and ongoing impacts were something that were -- that did concern us.

MR. BERGNER: Q: Okay. I'm not --

COUNCILLOR D. MANUEL: A: Particular to the Upper Nicola Band, that position had been --

MR. BERGNER: Q: Well, it's the last --

COUNCILLOR D. MANUEL: A: Well, I don't want to call it a position. But that --

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 clarify.

MR. HOWARD: I think the witness was still in the process of answering.

MR. BERGNER: Q: Okay. Forgive me.

COUNCILLOR D. MANUEL: A: That the formulation of a position, that this came out of a long history, I guess, of discussion. Particular to Upper Nicola Band, we had -- along with the ONA and along with the -- along B.C. Hydro, who had been engaged at other tables, in a discussion around existing facilities. So the existing facilities notion wasn't something that was new.

We also knew amongst the other people, like I said, that this is where it came to be affirmed, I guess, as a common position. But it was something that we were aware was happening in other places around the province. It also happened to be in

particular to the Okanagan Nation something that was specifically being addressed with B.C. Hydro.

MR. BERGNER: Q: The last sentence in that paragraph, I'd like to direct your attention to, and see if we can confirm this is what happened. That last

sentence, and this is -- Chief Manual, this is in your affidavit.

"From that point forward, this was the

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ONA, in all our communications and dealing with the Crown, including B.C. Hydro, the EAO and, later on, provincial Ministries."

That's an accurate statement, we can agree on that? CHIEF T. MANUEL: A: Yeah, we wanted a commitment from

the Crown to deal with the current and ongoing infringement.

MR. BERGNER: Q: Thank you. Can I ask you to turn to tab 8 in the black binder. This is a document from Exhibit B20, attachment C1. It's notes of a meeting July 19, 2007. First, let me clarify. It says "Chief and Council were in attendance." Chief Manuel, you were in attendance at this meeting?

CHIEF T. MANUEL: A: Yes, I was. MR. BERGNER: Q: Do you recall that?

CHIEF T. MANUEL: A: Yes, I was, and chairing the meeting as well.

MR. BERGNER: Q: And Councillor Manuel, you were in attendance at this meeting?

CHIEF T. MANUEL: A: Yes, I was.

MR. BERGNER: Q: And I understand 25 community members were in attendance. I see you both nodding. For the benefit of the court reporter --

CHIEF T. MANUEL: A: Yes. Yes.

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first paragraph, beside "Key discussion summary" -- well, the key discussion summary,

"The Upper Nicola Band invited B.C. Hydro to present an overview of the ILM project at a community meeting."

And then skipping a sentence, the last sentence says: "There are high expectations for

compensation."

And down into the bullets, the second bullet: "Compensation for loss of traditional territory and impacts to interests and rights."

Is it fair to say that what was being expressed was a need to compensate or accommodate for existing

facilities?

CHIEF T. MANUEL: A: The community that evening had certainly expressed the facilities that were built there 35-plus years ago, and had never been properly consulted or accommodated for those facilities, and there was a lot of concern from those members, some of the elders that were there, in their recollection, and therefore had voiced these concerns in this meeting. MR. BERGNER: Q: And one of the concerns was that there

had never been compensation.

CHIEF T. MANUEL: A: Or accommodation, yes.

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meeting minutes, the last bullet:

"They have relatives at Stl'atl'imx and expect the same level of compensation as them for the impacts of the T/L,"

And I read that to be "transmission line".

So, again what's being expressed is a

concern about the absence of any compensation for the existing facilities. Fair statement?

CHIEF T. MANUEL: A: Yes.

MR. BERGNER: Q: Thank you. If I could ask you to turn to the next tab, tab 9 -- actually, tab 9 and 10, I'll be referring to both. This is two attachments to the Upper Nicola evidence, C5-8-1, Appendix I at tab 9 and Appendix J at tab 10.

First of all, let me ask you this. Chief Manuel, these letters are addressed to you. You recall receiving these?

CHIEF T. MANUEL: A: Yes.

MR. BERGNER: Q: And in the first, is it fair to say that what's being offered is an engagement in respect of a process for the 5L83 project? And the second sentence of the third paragraph says, we'll write to you separately in regard to your issues regarding past grievances. This is the tab 9 letter.

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MR. BERGNER: Q: Certainly. I'm just asking if it's a common understanding that what B.C. Hydro is offering in this letter is to engage in respect of the new transmission line, and saying we'll write to you separately in relation to the issues regarding past grievances.

COUNCILLOR D. MANUEL: A: You're referring specifically to tab 10, or did you refer to both?

MR. BERGNER: Q: Well, first at tab 9. COUNCILLOR D. MANUEL: A: Tab 9 is the -- MR. BERGNER: Q: Okay, well, we can --

COUNCILLOR D. MANUEL: A: Okay, you're going to go to tab 9 and 10.

MR. BERGNER: Q: Yes. Yes.

COUNCILLOR D. MANUEL: A: And your question was specific to tab 9.

MR. BERGNER: Q: Yes.

COUNCILLOR D. MANUEL: A: To tab 10, that it says -- MR. BERGNER: Q: We'll write to you separately in

relation to the issue on what's called "past grievances" in that letter.

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letter at tab 10 that I've seen in the record. And as I understand your evidence, the response was given at the subsequent meetings. Is that a fair statement? COUNCILLOR D. MANUEL: A: Yes.

MR. BERGNER: Q: Thank you. And after receipt of these letters, or around this time, one of the requests

that's made by Upper Nicola is for a meeting with the B.C. Hydro senior executives. Do you recall that? COUNCILLOR D. MANUEL: A: Yes.

MR. BERGNER: Q: And if I could ask you to turn to Tab 11.

Proceeding Time 10:02 a.m. T12 COUNCILLOR D. MANUEL: A: Are we returning back to that

question around Tab 9 and 10 then or --

MR. BERGNER: Q: Well, the one at Tab 9, I was simply trying to -- I just wanted to show the relationship between the two letters.

COUNCILLOR D. MANUEL: A: Well, like from our -- just because I was, I wanted to note that, you know,

between these two letters really the Band again is looking at the central issues. The one glaring issue that I guess -- or omission on the part of Hydro or anybody, if you notice on the Tab 9 letter, where Hydro is committed to engage in a comprehensive

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 MR. BERGNER: Q: Yes.

COUNCILLOR D. MANUEL: A: There wasn’t a consultation process on alternatives or no consultation on other -- on anything but the -- this proposed to consult on the 5L83, specifically the concerns that we had been

addressing for several months, I guess, that the

response from Mr. Denhoff in the second letter at Tab 10 is to existing infringements and existing

facilities.

It speaks about a discussion. This was identified with Mr. Denhoff as being something that the Band wanted to talk about.

MR. BERGNER: Q: And you wanted to talk about with senior executives --

COUNCILLOR D. MANUEL: A: We wanted to talk about the scope of consultation. We were engaged in a process here, early on, with Mr. -- as you had mentioned in your previous questions, with Mr. Mounsey and others around -- starting to engage in a process of

consultation. Part of that consultation process that’s outlined, that the Band requires is that we would require to have some input into what that process was going to look like.

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around the 5L83 and only the 5L83, and then we get into a discussion about wanting to set up some formal consultation process. So we asked to see somebody with some authority that would be able to make some decisions, because the responses to most of the questions to Mr. Mounsey and the like was, we don’t have the authority to discuss that with you, so -- MR. BERGNER: Q: And that’s what I was going to take

you to next.

COUNCILLOR D. MANUEL: A: -- we want to get into that, but specifically to these two letters, there’s no -- there is no commitment from Hydro to engage in a

process. And this was a problem that was identified, which led to the, as you say, a request to meet with some of the executive.

MR. BERGNER: Q: And what was arranged was a meeting with the director of aboriginal relations and

negotiations, Mr. Lyle Viereck, the senior manager, Mr. Keith Anderson, and two vice presidents of BCTC, Mr. John Irving, vice president and general counsel, and Mr. Bruce Barrett, vice president major projects? That’s what happened next, is that correct? And it’s at Tab 11 of the black binder. Again this is from your evidence, C5-8-1, Appendix K.

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referenced here was ultimately arranged for April 22, is that correct? And I can --

COUNCILLOR D. MANUEL: A: I believe, yes.

MR. BERGNER: Q: Tab 13 of the binder, if we can turn to that one. And, Chief Manuel, you're in attendance at this meeting, correct?

Proceeding Time 10:00 a.m. T13 MR. BERGNER: Q: And, Chief Manuel, you're in

attendance at this meeting, correct? CHIEF T. MANUEL: A: Yes.

MR. BERGNER: Q: And, Councillor Manuel, you're in attendance as well?

COUNCILLOR D. MANUEL: A: Yes.

MR. BERGNER: Q: And you gave a slide presentation at this meeting of some pictures of the existing

transmission lines. Do you recall that? COUNCILLOR D. MANUEL: A: Yes.

MR. BERGNER: Q: And those are the slides found at tab -- or Appendix F of your evidence, I believe?

COUNCILLOR D. MANUEL: A: Yes.

MR. BERGNER: Q: Thank you. And at the minutes -- the notes of that minute, second page, near the bottom, it's the last full paragraph, 3 lines.

"They reviewed a declaration from elders and members from 1987…"

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declaration that was presented this morning? COUNCILLOR D. MANUEL: A: Yes.

MR. BERGNER: Q: Thank you. And that sentence continues:

"…and they didn't want to proceed further on ILM until the historical impacts of existing assets had been dealt with, or faithfully negotiated, as they put it."

And is it fair to say that the message being delivered at this meeting was, you were looking for negotiations in respect of the existing facilities.

COUNCILLOR D. MANUEL: A: Well, I think we were looking for a commitment from individuals who we believed had some authority to provide a mandate, to lower-level bureaucrats who were the people that we were talking to. And the responses to our questions primarily were, if we wanted -- if we want to get into this other -- these other areas of discussion, we can't do that. What came through to us was, "We're here to talk about 5L83. We can talk about the 5L83 and

nothing more. And if you want to talk about something else, then we've got to get a change in our mandate." MR. BERGNER: Q: And the mandate you're referring to is a mandate for negotiations in respect of the existing facility?

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 to negotiate --

MR. BERGNER: Q: Thank you. And you mentioned -- sorry.

COUNCILLOR D. MANUEL: A: I get -- yeah, we can leave it there.

MR. BERGNER: Q: Okay. You mentioned the people you'd been dealing with previously. One of the people you'd been dealing with previously was Mr. Eric Denhoff. COUNCILLOR D. MANUEL: A: Yes. And we had one meeting,

I believe.

MR. BERGNER: Q: And that's who the letters of December 3rd

we looked at a moment ago are from? COUNCILLOR D. MANUEL: A: Yes.

MR. BERGNER: Q: Mr. Denhoff. And you understood he was the chief negotiator for B.C. Hydro.

COUNCILLOR D. MANUEL: A: Yes, we understood him to be the negotiator for B.C. Hydro who was assigned to negotiate an impact benefits agreement on the 5L83. MR. BERGNER: Q: And were you aware at the time that

Mr. Eric Denhoff was the former Assistant Deputy Minister of Aboriginal Affairs? You were advised of Mr. Denhoff's background?

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MR. BERGNER: Q: Okay. I'll -- we'll come to that. CHIEF T. MANUEL: A: We'd done our own research on him,

and certainly knew or understood who he was, I mean, prior to the meeting.

MR. BERGNER: Q: Thank you. So did you --

CHIEF T. MANUEL: A: But nothing from the province or B.C. Hydro as to he was formerly.

MR. BERGNER: Q: And did you understand he also acted as a chief negotiator for Canada in respect of treaty? THE CHAIRPERSON: Are you giving evidence as to his -- MR. BERGNER: Pardon me?

THE CHAIRPERSON: Are you giving evidence as to this gentleman's capacity to negotiate, or --

MR. BERGNER: Chief Manuel has indicated that they had done their own research. I was asking whether they were aware of certain facts.

CHIEF T. MANUEL: A: I wasn't aware of his province with Canada, no. Or, position with Canada, sorry.

Proceeding Time 10:11 a.m. T14 MR. BERGNER: Q: We’ll come back to that. April 22, if

we can return to those minutes, which are in front of you, on the third page, and we were discussing just a moment ago the request for negotiations. Near the top of the page it says, quote:

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have never been compensated for this or the fact that five transmission lines traverse their traditional territory."

Do you see that reference? COUNCILLOR D. MANUEL: A: Yes.

MR. BERGNER: Q: The substation near the Reserve, that’s the Nicola substation, is that correct? COUNCILLOR D. MANUEL: A: Yes.

MR. BERGNER: Q: And the five transmission lines are the large lines that enter and leave the Nicola substation, is that correct?

COUNCILLOR D. MANUEL: A: Yes.

MR. BERGNER: Q: And you’re expressing a concern that you’ve never been compensated for these facilities, is that correct?

COUNCILLOR D. MANUEL: A: Yes. I guess -- MR. BERGNER: Q: The -- sorry.

COUNCILLOR D. MANUEL: A: Well, I mean, the discussion -- I guess, like these are almost like a background kind of information that’s being provided to bring some context to a discussion that we anticipate or we would hope that would lead to some meaningful

consultation. To this point it wasn’t the position or the understanding of the Upper Nicola Band that a

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where there is, to our understanding, individuals who were presented by B.C. Hydro upon the request of the Band for individuals who could make decisions, these individuals were presented to us as such and our

intentions were to provide a little -- to provide some context for them in their decision making.

So the discussions around the Hydro facilities, around the substation and the existing lines, were -- and it was clear that it wasn’t about specific items.

So your question about, you know, are we -- is it true that we would say we haven’t been

compensated, well that -- in the context of the discussion that may be a point.

MR. BERGNER: Q: Okay, okay.

COUNCILLOR D. MANUEL: A: What the specific reference to wasn’t -- may not be, may not be apparent, I guess. MR. BERGNER: Q: Okay, well perhaps if we continue with

some of the further discussion, the next paragraph, "The Chief", and I believe it’s Chief Manuel, if I’m not mistaken.

"The Chief suggested that these assets, that’s the big issue, affects hunting and berry picking and medicine gathering…" Let me pause there.

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raised about foreign species or foreign vegetation moving in. Do you recall that, Chief Manuel?

CHIEF T. MANUEL: A: Yes.

MR. BERGNER: Q: And that was one of the concerns you were expressing?

CHIEF T. MANUEL: A: It was. I mean, you have these huge lines coming in and certainly disrupting a way of life.

MR. BERGNER: Q: And the concern you’re identifying is the displacement of the natural vegetation and

invasive species or foreign species that take up root here?

CHIEF T. MANUEL: A: Well, the hunting, the berries, the foods, yeah, making reference to.

MR. BERGNER: Q: Okay. If I could ask you to flip to the fifth page of those notes, and unfortunately

they’re not numbered. It’s the page that starts, Lyle thanked the presenters.

CHIEF T. MANUEL: A: Yup.

Proceeding Time 10:16 a.m. T15 MR. BERGNER: Q: Near the -- three-quarters of the way

down that page in the -- what appears to be the second-last paragraph, there's a line that starts "Bruce Barrett said BCTC has a mandate …" Do you see that?

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to deal with concerns and address issues that they can, and to improve the project, and avoid impacts, and to compensate where BCTC can't avoid impacts. They have a clear mandate to discuss impacts and fairly

compensate. He thought BCTC could be a

conduit for these concerns identified today, but we don't have a legal mandate to deal

with historic grievances, but have a voice." Is it fair to say that the position being put forward is, in respect of the project, the new line, we can look at impacts and we have a mandate to compensate in respect of those impacts. Is that a fair summary? MR. HOWARD: I'm just going to rise. My friend's

question is asking them about the position being put forward by B.C. Hydro.

MR. BERGNER: As understood.

MR. HOWARD: I think they're in a -- perhaps with

appropriate qualification, it might be an appropriate question.

MR. BERGNER: Q: Is that a position you understood being put forward at that meeting?

COUNCILLOR D. MANUEL: A: Could you sort of repeat? MR. BERGNER: Q: Certainly. Did you understand, at

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discuss compensation in respect of the proposed new transmission line? For impacts of the new facilities, there was a mandate to discuss impacts and fairly

compensate. We'll come to the existing facilities in a moment, but in respect of the new facilities, is that a position you understood?

COUNCILLOR D. MANUEL: A: I think the -- like I said, we have a -- at this point in time there isn't a consultation process. There isn't a consultation

mandate. There isn't a commitment to consult. So our -- like when we talk about -- when you're asking us, or you're asking to what we understood, and this was again going back to my earlier comments, that we

understood that we had been requesting of B.C. Hydro, of the lower-level bureaucrats that we were engaged with, to actually entertain a discussion with

individuals who could make a decision, and at this time, when we have that discussion, this is our

intention, to start to engage a consultation process that we would understand be meaningful.

Now, when he talked -- specific to the ILM, that wasn't -- I guess that may be what he said. I'm just trying to look at the notes again to reflect. MR. BERGNER: Q: Okay.

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whether they -- whether it correctly reflects -- MR. BERGNER: Q: Okay.

COUNCILLOR D. MANUEL: A: -- the statement that was made by Mr. Barrett.

MR. BERGNER: Q: All I'm trying to get at is what -- is where you understood things stood at that April 22 meeting. And the --

CHIEF T. MANUEL: A: Well, what we understood, Mr.

Bergner, is that there were already impacts already on the land. There were impacts that were never

addressed from the 35-plus years that that thing was there. And then B.C. Hydro or BCTC is telling us, "Well, we'll deal with the impacts on the new line." Well, what about the old impacts already to the

existing facilities? Those were our questions and concerns at that time.

MR. BERGNER: Q: Yes. And is it fair to say your

proposal was that these should be negotiated jointly? CHIEF T. MANUEL: A: Yes.

MS. BRIDGE: A: I would like to add, from a technical perspective, it's very difficult to understand a selection of impacts from a new line that are additional --

MR. BERGNER: Q: Again, Ms. Shrimpton [sic], were you present at this meeting?

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MR. BERGNER: Q: Okay. My question was in respect of the meeting.

MS. BRIDGE: A: Sorry.

MR. HOWARD: Q: With respect, Chief Manuel has just given an answer that relates to the linkage between the new and existing facilities, and studying them, and Ms. Bridge has given an answer that provides a context from the ONA's perspective on that very same matter.

THE CHAIRPERSON: I think Mr. Bergner's question was

specific to the meeting, Mr. Howard; and I notice it's time for a break. Are you --

MR. HOWARD: Yes.

THE CHAIRPERSON: Is this a suitable time to break? MR. BERGNER: Yes, it is.

THE CHAIRPERSON: We will break, fifteen minutes, thank you.

(PROCEEDINGS ADJOURNED AT 10:22 A.M.)

(PROCEEDINGS RESUMED AT 10:42 A.M.) T16 THE CHAIRPERSON: Please be seated.

Mr. Bergner.

MR. BERGNER: Q: Before we commence, Ms. Bridge, I believe I owe you an apology. I believe before the break, there’s an employee of BCTC named Gwen

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 apologies.

MS. BRIDGE: A: Apology accepted.

MR. BERGNER: Q: Just so the record is clear, where this name pops up as well.

We were in the April 22 meeting, and again that’s at Tab 13 of the binder, and there was just one more issue I wanted to touch on before we move off that meeting. Again on the same page we were at page before, page 6, the page that starts, "concerns but a table set up". It’s near the bottom of that page, about two-thirds of the way down, there’s a paragraph that states, “Lyle agreed”, do you see that?

CHIEF T. MANUEL: A: I thought you said "Lyle" -- "Lyle thanked the presenters", is that the same page?

MR. BERGNER: Q: No, the next page. That’s the one. I won’t read the whole paragraph but it starts:

"Lyle agreed to the proposal to sit down and explore next steps and noted we should

discuss the issues of pas6t issues which related to BCH, [B.C. Hydro] itself…" Then further down that paragraph it states,

"…such as…issues related to current operations like Chief Manuel’s concerns about vegetation…"

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down and explore next steps in relation to concerns related to current operations like the concerns you had expressed about vegetation? Is that a fair statement?

COUNCILLOR D. MANUEL: A: No. I think that, you know, if we look at the same, on the same page, to the

third-to-last paragraph, that there was a kind of a disconnect, I guess, in the room. That there was this elephant in the room was demanding, like Ed expressed before the break, that from our side there wasn’t a clear indication that there was a mandate and there wasn’t a clear willingness to receive that mandate; either to give that -- our understanding was these individuals in the room were the ones that were going to provide the mandate.

Subsequent to our discussions the message came across that there’s -- now we get to the cabinet level, that there’s other people now that provide or clarify the mandate for the people that we had

expressed an interest in talking to. So there wasn’t a real understanding from our part that there was

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B.C. Hydro gentlemen in the room.

On the previous page there’s a reference at the bottom to our legal counsel from Mandell Pinder, Bruce Stadfeld, making reference to a mandate, a need for a mandate to engage these processes jointly, in a joint discussion.

MR. BERGNER: Q: I think this --

COUNCILLOR D. MANUEL: A: That was the reference that was given. That was the --

MR. BERGNER: Q: I think this goes a bit beyond my question. Let me try it this way, if I may. Could I ask you to turn to paragraph 60 of your evidence. This is in the large binder -- oh, I see you have copies -- it’s page 16. Paragraph 60 is part of your discussion about the April 22 meeting. And it states,

"B.C. Hydro and BCTC stated that while they would not, and could not, address impacts to Okanagan Aboriginal rights and title…"

Skipping a few words, --

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And taking you back to the meeting notes, what I'm asking is, wasn't there an additional item that B.C. Hydro indicated it was prepared to discuss? And that was issues related to current operation, like Chief Manuel's concerns about vegetation? That was part of what they were prepared to discuss. Is that a fair statement?

COUNCILLOR D. MANUEL: A: If you looked at them both, that's both from our understanding were operational issues. The vegetation issue is an operational issue, of the operations of the existing facilities.

MR. BERGNER: Q: Yes.

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So if you're saying that they're putting things on the table, they're not.

MR. BERGNER: Q: Well, it's the operational issues I'm trying to seek clarity about, and I appreciate

differences remain. But one of the items that's not referred to in your paragraph 60 that B.C. Hydro and BCTC were willing to discuss was issues related to current operations like Chief Manuel's concerns about vegetation. And all I'm asking is that, in respect of that operational issue, that is something B.C. Hydro and BCTC are indicating they're willing to discuss. Is that a fair statement?

Perhaps I can help.

COUNCILLOR D. MANUEL: A: Yes, I guess so. MR. BERGNER: Q: At page 3 --

COUNCILLOR D. MANUEL: A: Again, there is a -- like, this isn't the -- neither of these is a definitive list, because the process of consultation requires issues identification. So we're so early on in this process that issues identification isn't even -- you know, this is a meeting between people who are going to say, "Okay, we will get a mandate to engage in a real discussion." This isn't the actual consultation process. This isn't the actual issues identification. MR. BERGNER: Q: Well, let's talk about --

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identified are really neither here nor there, because there's a step missing yet.

MR. BERGNER: Q: Okay.

COUNCILLOR D. MANUEL: A: So there's a next step. MR. BERGNER: Q: If you can keep your finger on the

page we've been looking at, and flip back to the third page of those notes, and we looked at this before the break. But just to refresh our memories on this, at the third page, it starts:

"That the environmental assessment process is unacceptable to them."

And it's the first full paragraph, where we looked at this before the break. That starts:

"The chief suggested that these assets 'that's the big issue'…"

And halfway through that paragraph it states: "…a note that traditional vegetation under the lines has been replaced by foreign vegetation moving in."

That's an issue that's been identified. Agreed? It's not the definitive list, but it's an issue that's been identified.

COUNCILLOR D. MANUEL: A: Identified in the context of a discussion that was moving towards a process that would provide a definitive list.

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COUNCILLOR D. MANUEL: A: So this isn't the list -- you can't rely on this list as identification of an issue. This is a discussion -- early-stage discussion in a process that says, "We're going to identify issues." Our interest was getting issues, like when you ask -- okay, what was -- we're talking about a process. And in this process, the chief's identification of issues, these are real issues to the Band. They're not a

definitive list, though. So to say --

Proceeding Time 10:53 a.m. T18 MR. BERGNER: Q: I wasn’t suggesting it was a

definitive list. I was merely asking you to confirm that an issue has been mentioned here --

COUNCILLOR D. MANUEL: A: An issue has been mentioned, yes.

MR. BERGNER: Q: And on page 6, you understood that B.C. Hydro was putting forward the view that there are issues which relate to B.C. Hydro itself, such as

issues related to current operations like Chief Manuel’s concerns about vegetation. So my question again was, when you’re listing in paragraph 60 some of the issues that B.C. Hydro and BCTC are willing to discuss, that’s an issue that should be included. COUNCILLOR D. MANUEL: A: I don't know because we

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