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Box 479, Nelson, British Columbia, Canada V1L-5R3

Tel: 250.551.6840 Fax: 866.685.7376

david@legalmind.ca

David M. AaronBarrister & Solicitor

December 17, 2009BY EMAIL

B.C. Utilities CommissionBox 250, 900 Howe StreetSixth FloorVancouver, B.C. V6Z 2N3

Dear Sirs / Mesdames:

Re: BC Hydro ~ Acquisition from Teck Metals Ltd. of an Undivided One-third Interest in its Waneta Dam and Associated Assets ~ Project No.3698565

We attach the final argument on behalf of the Sinixt Nation, otherwise known as theArrow Lakes or Lakes Indians (“the Sinixt”) with respect to proceedings before theB.C. Utilities Commission (“the Commission”) pertaining to the above-referencedtransaction (“the Transaction”).

BC Hydro initiated contact with the Sinixt by letter dated June 17, 2009, resulting inthe engagement of the Sinixt in a consultation process regarding the proposedTransaction (“the Consultation Process”). While BC Hydro did provide the Sinixtwith adequate capacity funding so as to permit the Sinixt to fully engage in theConsultation Process, the Sinixt assert, on the basis of the following reasons, thatBC Hydro has not met the substantive consultation obligations of the Crown inconnection with the Sinixt Nation with respect to the proposed Transaction.

We request that the Commission decline to approve the Transaction and theassociated Schedule of Expenditures on the following grounds:

a) The expenditure is not in the public interest because BC Hydro’s consultationand accommodation of the Sinixt has been inadequate to maintain the honour ofthe Crown in the context of the Transaction; and

b) BC Hydro failed to maintain the honour of the Crown by executing the APAin the absence of having discharged its consultation obligations to the Sinixt.

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A. Introduction

1. From the early twentieth century to the present, a succession of professionalethnographers and archeologists, including Franz Boas, James Teit, GeorgeDawson, Verne Ray, William Elmendorf, Stuart Chalfant, Gordon Mohs,Dorothy Kennedy, Randy Bouchard, Christopher Turnbull and MorleyEldridge have systematically interviewed Sinixt members, examined andanalyzed traditional sites and artifacts, compiled linguistic data anddocumentary records, and produced maps of territories and movements ofthe Sinixt and their interactions with neighbouring peoples. The reports ofthese professionals are in evidence in these proceedings in Exhibits C18-4-3,C18-4-5, C18-4-6, C18-5, C18-7, C18-8, C18-8-1 and C18-9.

2. The published work of this large body of expert opinion is unanimous inasserting the continuous existence of the Sinixt as a distinct people up to thepresent day, the particulars of their history and movements since Europeancontact and the approximate boundaries of their traditional territory (“theTerritory”) spanning both sides of the present-day boundary betweenCanada and the United States of America.

3. The Sinixt have been referred to by Europeans, ethnographers and Canadiangovernments interchangeably by the terms “Arrow Lakes Indians” (or“Lakes”) and “Sinixt” (under various spellings including “Sngaytskstx”). Inthese submissions, we use the term “Sinixt” to refer collectively to all ofthese references.

4. The Sinixt are one of the indigenous inhabitants of North America and arean “aboriginal peoples of Canada” as that term is used in s. 35 of theConstitution Act, 1982.

5. The traditional Territory, as surveyed and mapped repeatedly, is from thepeak of the Monashee Mountains in the west to the peak of the Purcell andSelkirk Mountains in the east; and from a northern point in the vicinity ofRevelstoke, B.C., to Kettle Falls in the high desert plateau south of the 49th

parallel.

6. We use the term “traditional territory” as that term is defined at page 12 ofBouchard and Kennedy’s First Nations' Aboriginal Interests and TraditionalUse in the Waneta Hydroelectric Expansion Project Area: A Summary andAnalysis of Known and Available Information [“Bouchard and Kennedy2005”]:

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It should also be noted, however, that First Nations have arelationship with much broader territories than the specific sitesidentified by name. They used and occupied lands that we refer tocommonly as their “traditional territory.” Their use of such territorywas not necessarily to the exclusion of other indigenous people, butthis territory did contain a particular group’s winter villages andcustomarily-used resource-harvesting sites. In the present report,when we speak of a specific area being within the “traditionalterritory” of a certain people, we mean that the area was usedprimarily by these people and that they and other tribes regarded it astheir territory. Indigenous people associated with other tribes mayhave used the same area, provided they made their presence andamicable intentions known, or traveled there as guests of the residentFirst Nation. While incursion into a neighbouring First Nation’sterritory and exploitation of their resources was not uncommon,when done without permission it often resulted in forcefulretaliation.

7. The Sinixt Territory was dissected by the establishment of the Canada-USAborder along the 49th parallel in 1846.

8. The Sinixt have pending before the B.C. Supreme Court an aboriginal titleclaim commenced on July 28, 2008, by representative action through theDirectors of the Sinixt Nation Society on behalf of the Sinixt Nation underCourt file number 14324 (Nelson), a copy of which is attached hereto.

9. The Waneta Dam falls within the Sinixt’s claimed territory, as stated inExhibit C18-5 at page 11 of Bouchard and Kennedy 2005:

The contemporary Sinixt (sngaytskstx)/Arrow Lakes Nation, basedin the Slocan, relies largely upon anthropologist Verne Ray’s(1936b) delineation of Lakes territory. Thus, the WanetaHydroelectric Expansion Project lands fall within their claimedterritory (Sinixt/Arrow Lakes Nation 1999).

10. The Sinixt’s utilization of the Waneta area is indicated at page 14 ofBouchard and Kennedy 2005:

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Native people speaking the Lakes dialect of the Okanagan-Colvillelanguage did utilize the Waneta Hydroelectric Expansion Projectarea traditionally.

11. Indeed, the mouth of the Pend d’Oreille River in the vicinity of the WanetaDam falls squarely within the traditional territory of the Sinixt, as confirmedby the factual findings as set out in Bouchard and Kennedy 2005 at pages 23- 26:

Known and available land use data relating to specific sitesthroughout the Lower Kootenay/Columbia region were summarizedpreviously in our comprehensive report entitled First Nations’Ethnography and Ethnohistory in British Columbia’s LowerKootenay/ Columbia Hydropower Region (Bouchard and Kennedy2000 [reprinted in April, 2005]). That study showed how theColumbia River was a central part of the aboriginal peoples’waterborne communications and transportation system, facilitatingtravel between the Arrow Lakes — part of the heartland of aboriginalsngaytskstx (Lakes) territory — and Kettle Falls, the second largestsalmon fishery on the Columbia. The locations of several villagesand camps, as well as specific resource procurement sites wereidentified in this area, indicating the cultural significance of thisregion to the sngaytskstx people who lived here, for the wealth ofresources it provided. Other aboriginal groups — the Okanagan,Kutenai (Ktunaxa) and Shuswap — sometimes entered sngaytskstxterritory, either to visit and trade with the sngaytskstx, to passthrough en route to visit another resource site or aboriginal group, orto hunt and fish with the sngaytskstx in their territory. Such use ofthe area may have increased subsequent to the relocation of manysngaytskstx people south of the US/Canada border, a process thatbegan in the early 19th Century.…The area of the Pend d'Oreille River mouth, located on the east sideof the Columbia River immediately north of the Canada/US border,is known in the Okanagan-Colville language as nkw’líla7 (possiblymeaning ‘burned area’). Nkw’líla7 refers specifically to an importantaboriginal settlement formerly located at the mouth of the Pendd’Oreille River, and more generally to the lower area of this river aswell.

The term nkw’líla7 was known in the 1970s-1980s to all of ourLakes consultants (all of whom are now deceased): Mary Marchand;

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Charlie Quintasket; Julia Quintasket; Louise Lemery; and Joe Barr.Other transcriptions of this same Okanagan-Colville term for thisplace include: “nkulilu” (Gatschet 1885); “nkoli’la” (Teit1930b:209); 26 and, “nquli’la” (Ray 1936:125). None of these othersources provided a translation of nkw’líla7.Lakes elder Mary Marchand said that the lower area of the Pendd'Oreille River was utilized by the sngaytskstx or Lakes people, butreferred to the people farther up the Pend d’Oreille River askeĺspílmx which means ‘Kalispel people’ in the Okanagan-Colvillelanguage. According to Mrs. Marchand, the "border" between thesngaytskstx and the Kalispel was at Metaline Falls [located inWashington State, about 40 Km (25 miles) eastward up the Pendd'Oreille River from where it empties into the Columbia, and about16 kilometres (10 miles) south of the Canada/US border].

Independent confirmation of Mary Marchand’s Lakes/Kalispelboundary statement is provided in one of James Teit’s (1910-1913)unpublished territorial maps where he draws the boundary linebetween Lakes and Kalispel — along the Pend d’Oreille — throughMetaline Falls.…Nkw’líla7 was a significant village site, according to James Teit(1930b:209) who reported that "many people are said to have livedhere formerly, and there are some very old burial grounds near by."Several other sources also refer to old graves at the mouth of thePend d’Oreille. Graham (1963:154) reported a statement by MatthewHill, who came to the Pend d’Oreille valley in 1892, that skulls werefound in a sand bank “at Waneta” where buildlers were excavatingfor a hotel built in 1894…Teit (1898-1910) indicated in a May 20th, 1909 letter that he hadbeen told there was an “old Indian graveyard” at nkw’líla7 and that a“good many skeletons…and grave goods” had been uncovered herewhen a house was being built. He added that “the people living herethink that there are more burials remaining which are not disturbed.”…Mary Marchand identified nkw’líla7 as a former sngaytskstx wintervillage and a place where her maternal grandparents lived. … MaryMarchand also recalled that there was good salmon fishing at themouth of the Pend d’Oreille itself.…

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Information about aboriginal people at the mouth of the Pendd’Oreille River is also provided in ethnohistoric sources, one ofwhich recorded that the Lakes people asserted control over themouth of the Pend d’Oreille, and the right of passage from theColumbia up to the upper Pend d’Oreille.

B. Current Archeology Fails to Provide a Complete Account of the Pendd’Oreille

12. The extent of the historical presence of the Sinixt on the mouth of the Pendd’Oreille is not fully reflected in current archaeological reports. While nine(9) archeological sites have been found within 1.5 miles of the Waneta Dam,much of the potential archaeological evidence has been wiped out by theflooding that was caused by the initial operation of the dam prior to anyarchaeological investigation of the area.

13. BC Hydro erroneously contends that the work completed for BC Hydroconducted by the projects reviewed inDOC_22929_Exhibit_B_11_2_BCHydro_Record-of-Decision.pdf indicatesthat there is no archaeological evidence for an extensive presence of anyaboriginal group in the area of the Waneta Dam. This argument isunfounded due to the fact that there was no archaeological survey orexcavation conducted before the start of the operation of the Waneta Dam.Most archaeological sites in the Upper Columbia tributaries are directly onriverbanks including the site of Vallican currently occupied by the Sinixtand the Slocan Narrows Pithouse Village, which is the focus of N.Goodale’s research. This type of settlement pattern practiced by the SinixtAncestors would have caused all of the significant areas including villagesand burial grounds to be inundated by the original Waneta Dam project priorto the collection of any archeological record of those sites.

14. Additionally, other BC Hydro dam projects have significantly impacted theSinixt archaeological record in other areas of their traditional territory. Thisis evidenced by many villages being completely inundated by dams on theArrow Lakes. Evidence for significant archaeological materials aredocumented in this area by Turnbull (1977) and Pearkes (2002) (both citedin Goodale Statement). This opinion is also shared by Bouchard andKennedy (2005:50) who also indicate several projects, including mining andlogging, have probably destroyed archaeological deposits in the area of theWaneta Dam.

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15. The bottom line is that the Waneta Dam has raised the levels of the Pendd’Oreille River potentially several hundred feet and in concert has likelydestroyed most of the significant archaeological deposits including thevillage sites mentioned in both Mohs and Bouchard and Kennedy (2005),and including Nkw’lila7.

C. Factual Context Regarding the Destructive Impact of Colonization

16. The earliest influence of Europeans on the Sinixt, predating contact, was inthe form of a severe decimation of the Sinixt population through thespreading effects of the smallpox and measles pandemics of the lateeighteenth and nineteenth centuries.1

17. After contact, the Sinixt continued to travel between the northern (Canadian)and southern (U.S.) portions of their Territory in order to engage in a broadspectrum of activities, including ritual and ceremonial, social, andsubsistence activities, all of which were integral to their identity and to thesurvival of their culture.2

18. Following the establishment in 1846 of the 49th parallel as the Canada-U.S.boundary, U.S. and British authorities, and Hudson's Bay Companyemployees on the British side, attempted to persuade the Sinixt to ceaseborder crossing.3

19. In an attempt to control the economic activity in the area, the Hudson's BayCompany engaged in a twenty-five year campaign to engage the Sinixt infur and fish trading in proximity to Fort Colville, Washington. 4

20. The U.S. government sought to have the Sinixt adopt a sedentaryagricultural/farming way of life by encouraging them to farm on landssurrounding Fort Colville, Washington. 5

21. The US government included the Sinixt / Arrow Lakes as one of the eleven

1 Bouchard & Kennedy 1985, supra, para 15.0 at pp. 0834-08352 See, Further Affidavit of Claire Wen, pp. A-0816, A-0819-0823, A-0773, A-0788, Record, Book 63 Bouchard & Kennedy 1985, supra para 15.04 Bouchard & Kennedy 1985, supra para 15.05 Bouchard & Kennedy 1985, supra para 15.0

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(11) constituent bands of the Confederated Tribes of the ColvilleReservation when it was established in eastern Washington in 1872. At thistime, other families and groups of persons also identified as Sinixt / ArrowLakes continued to live in Canada. At this time, the Canadian governmenthad not yet made any reserve land available to the Sinixt in their Territorynorth of the 49th parallel.6

22. Despite a series of encroachments on Sinixt territory and efforts byforeigners to restrict their movements, the Sinixt continued, after Europeancontact, to travel within their Territory both north and south of the 49th

parallel. Specifically, the Sinixt continued to regularly travel between FortColville and the Arrow Lakes region to hunt, fish and gather food plants.7

23. Numerous official British and American sources during the early 1880’sexplicitly recognized the continuing use by the Sinixt of their traditionalTerritory on both sides of the Canada - U.S. boundary for cultural, kinship,subsistence and economic purposes. 8

24. Canadian government officials specifically recognized that

a. The Sinixt needed to traverse the boundary for hunting and othersubsistence purposes;

b. To prevent such traversing would be a great hardship to the Sinixt;

c. Such traversing is not an offence against International Law; and

d. Such traversing could not be prevented by the authorities. 9

25. At all material times, the Canadian government had a policy to establishreserves with reference to the habits, wants and pursuits of aboriginalpeople. 10

26. On its first pass through south central British Columbia in 1884 to set aside

6 Andrea Geiger’s paper as attached as Exhibit B to her Affidavit which is in evidence as ExhibitC18-4-8 at page 20 of the PDF or page 269 of the Watt Motion Record (“the Geiger Paper”)7 The Geiger Paper (supra)8 The Geiger Paper (supra)9 The Geiger Paper (supra)10 The Geiger Paper (supra)

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reserve land for indigenous people in that area, the Canadian governmentoverlooked the Sinixt. 11

27. On October 25, 1902, the Canadian government operating through theOffice of the Indian Reserve Commissioner set aside 255 acres of land as areserve for the Sinixt. The land, half of which consisted of precipitousgranite bluffs falling straight to the water of the Lower Arrow Lake, waslocated at Oatscott on the western shore of the Lower Arrow Lake. 12

28. The location of Oatscott did not have a history of traditional use by theSinixt. No ancestral burials were there. The location had not been used as atraditional hunting or gathering village. 13

29. The Canadian government’s establishment of Sinixt reserve land at Oatscottwas insufficient to meet the needs of the Sinixt to pursue a livelihood in thatit did not adequately address the Sinixt people’s deeply embedded culturalpractice of using the region’s widely distributed resources and protecting theburials of their ancestors. 14

30. Many Sinixt refused to live on the Oatscott reserve because such wouldrequire abandoning important family burial grounds and removingthemselves from familiar fishing and hunting grounds in violation of theirown cultural laws of responsibility to the land. 15

31. The absence of any road into the Oatscott reserve made it virtuallyinaccessible for all practical purposes and the remote location of the reservemade it culturally insignificant for the traditional practices of the Sinixt. 16

32. In 1915, the Canadian government failed to follow up on efforts to establisha reserve for a group of Sinixt living at the mouth of the Kootenay Rivernear the southern tip of Lower Arrow Lake. This group of Sinixt, who hadbeen acknowledged by government officials as having long occupied thearea, had been requesting that a reserve be established at the mouth of theKootenay River since 1894. 17

11 The Geiger Paper (supra)12 The Geiger Paper (supra)13 The Geiger Paper (supra)14 The Geiger Paper (supra)15 The Geiger Paper (supra)16 The Geiger Paper (supra)17 The Geiger Paper (supra)

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33. Six families numbering 22 people in all were assigned to the Oatscottreserve. By the 1920s, only six (6) people lived on the Oatscott reserve. 18

34. The Canadian government invoked the Sinixt failure to move to or remainon the Oatscott reserve as evidence of disinterest in maintaining theiridentity as Arrow Lakes people. 19

35. At all material times, the Canadian government was in possession ofknowledge that the Sinixt had long standing historical ties to the ArrowLakes region. 20

36. When the Sinixt, who had traditionally migrated throughout the area theyoccupied, continued to utilize their Territory in much the same manner, thefact that they had crossed into that portion of their traditional territory nowwithin the United States was used by the Canadian government to absolveitself of recognizing them as Canadian aboriginals. 21

37. A 1903 census of those listed on the band roles of the Arrow Lakes Indianslisted a total of 26 people. When the next census was taken in 1924, justeight (8) remained and, by 1936, that number had dropped to six (6). Thesecensus records reflect the number of Arrow Lakes band members living onthe Oatscott reserve, not the number of Sinixt alive and using their Territory.22

38. The Canadian government used flawed criteria to ascertain the identity ofindigenous people and demonstrated the readiness to manipulate thosecriteria for its own purposes. 23

39. The government was willing to temporarily declare a non-Arrow Lakesperson a member of thee Arrow Lakes band to allow him to sign a surrenderof timber on the Oatscott reserve. 24

40. Subsequently, government agents sought to re-classify an existing Sinixt

18 The Geiger Paper (supra)19 The Geiger Paper (supra)20 The Geiger Paper (supra)21 The Geiger Paper (supra)22 The Geiger Paper (supra)23 The Geiger Paper (supra)24 The Geiger Paper (supra)

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person as belonging to the Okanagan Band so that the Sinixt could bedeclared extinct and the land and timber at Oatscott could revert to theProvince. 25

41. By 1953, the Canadian government had determined that the Arrow LakesIndian Band was extinct and, in 1956, it issued an extinction declaration andterminated the reserve it had set aside on behalf of the Sinixt in 1902. Withthis extinction declaration, the single reserve that existed in Canada as aplace for the Sinixt to live reverted back to the Crown. 26

42. At the time of the 1956 Extinction Declaration, 257 Sinixt individuals wereenrolled with the Colville Confederated Tribes of Washington State. Manymore were living off of the reservation and not officially counted. 27

43. In issuing the 1956 Extinction Declaration, the Canadian government actedin breach of its fiduciary duty and duty of honourable conduct owed to theSinixt people. 28

44. In further breach of its fiduciary duty and duty of honourable conduct owedto the Sinixt people, the Canadian government failed to discharge itsobligation to establish and maintain suitable reserves for the Sinixt at fourdifferent junctures:

a. in 1884 when it overlooked the Sinixt on its first pass through theKootenay area;

b. in 1902 when it established the Oatscott reserve that was largelyinaccessible and inadequate to meet the needs of the Sinixt;

c. in 1915 when it failed to set aside the land long-occupied by a groupof Sinixt at the mouth of the Kootenay river or set aside an alternatesite as a reserve; and

d. in the 1930s, 1940s and 1950s when it failed to conduct a thoroughinquiry into the whereabouts of those listed persons on the 1903census or their descendents who might still have had rights in the

25 The Geiger Paper (supra)26 The Geiger Paper (supra)27 The Geiger Paper (supra)28 The Geiger Paper (supra)

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reserve. 29

45. In failing to conduct a thorough inquiry into the whereabouts of those Sinixtlisted on the 1903 census or their descendents, the officials of the Canadianand British Columbia governments were motivated by a desire to accesstimber on the Oatscott reserve and a desire to avoid having to consult withthe Sinixt with respect to the negotiation of the Columbia River Treaty withthe United States. 30

46. The Columbia River water treaty process involved the flooding of valleysused traditionally by the Sinixt for thousands of years. 31

47. The degree of mobility of the Sinixt people across their traditional territoryand the presence of Sinixt north of the 49th parallel has indeed diminishedover the years due to historical circumstance, including small poxpandemics, assimilation policies of the Canadian government, displacementby industry and settlement, inadequate provision by Canadian authorities ofreserve land, flooding of their fishing grounds, residential school injusticesand disenfranchisement of the Sinixt from their statutory rights in Canada. 32

48. The Sinixt oral history tells that the Sinixt Salmon Chief and others withsalmon or river spirit powers mediated with the spirit realm on behalf of hisfollowers to produce a harvestable salmon run. Violations of the culturalrules of salmon harvesting were thought to cause the fish run to fall off andprecipitated efforts at reestablishing proper relations. In addition, Coyote, asupernatural figure, was sent, according to creation myths, to introducesalmon, to make fishing places, to establish the seasons, and to animate andprovide powers to particular rocks which can be called upon by ArrowLakes people.33

49. With the damming of the Columbia River within and south of their Territoryand the consequential loss of annual salmon runs in their Territory, theSinixt suffered a loss of a critical resource in relation to which the Sinixt

29 The Geiger Paper (supra)30 The Geiger Paper (supra)31 See, Further Affidavit of Claire Wen, p. A-0459, Record, Book 4 - Morley Eldridge, "VallicanArchaeological Site (DjQj 1): A Synthesis and Management Report" (1984) [hereinafter “Eldridge1984”].32 The Geiger Paper (supra)33 See, Further Affidavit of Claire Wen, pp. A-0833, A-0722, A-0504-0511, A-0853-0858, A-0729-Exhibits C18-4

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exercised a cultural responsibility. This loss was marked and mourned bythe Sinixt at a Ceremony of Tears in 1942, as depicted below.34

50. The end of salmon runs had an enormous impact on the social, economic,spiritual and cultural lives of the Sinixt.

51. The demographic presence of Sinixt north of the 49th parallel was disruptedin part as a result of:

a. the failure of the Canadian government to provide the Sinixt theprotection of the rule of law in the context of the aggressiveexploitation of minerals in the Slocan Valley, on the Arrow Lakesand elsewhere in Sinixt territory;

b. the failure of the Canadian government to provide the Sinixt withadequate and usable reserve land; and

c. the failure of the Canadian government to recognize the existentpopulation of the Sinixt people upon declaring the Arrow LakeIndian Band “extinct” in 1956. 35

52. We assert that these failures were inconsistent with the honour of the Crownand constituted a breach of the Crown’s fiduciary duty as owed to the Sinixt.

D. BC Hydro Errs By Misconstruing the “Extinction”

53. BC Hydro misconstrues the facts with respect to the federal government’sposition in relation to the Sinixt. In its submissions, at page 18, lines 23 –24, BC Hydro states:

With respect to the Sinixt Nation, the materials revieweddemonstrated that the federal government considers the Sinixt to beextinct…

54. It is true that the federal government determined that the Arrow LakesIndian Band was extinct and issued a declaration to that effect in 1956 (“theExtinction Declaration”). But the Extinction Declaration says nothing about

34 Mohs (1982)35 The Geiger Paper (supra)

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the existence of the Sinixt/Lakes as a tribal group. It speaks only to theirstatus under the Indian Act and the fact that there ceased to be any livingpersons, registered under the Indian Act, in that particular Band.

55. The federal government’s recognition and extinction of a band under theIndian Act is not testament to any anthropological reality with respect to atribal group. The Indian Act is not a reliable source of anthropological fact.It is a post-contact colonial race classification scheme that, in the case of theSinixt, created (and deemed extinct) a band in a manner that did not bear anysemblance to the anthropological / demographic reality of the Sinixt as atribal group. This is a fact that was acknowledged by Ronald A. Irwin, thenMinister of Indian Affairs and Northern Development, in his letter of August9, 1995, in which he states:

The Arrow Lakes Band ceased to exist as a band for the purpose ofthe Indian Act when its last member died on October 1, 1953. Bythis is meant that, as a consequence of death and transfer to otherbands, there were no longer any persons who qualified formembership in the Arrow Lakes Band under the provisions of theIndian Act. It does not, of course, mean that the Sinixt people ceasedto exist as a tribal group.

56. A copy of the Irwin letter was provided to BC Hydro, is included in theSinixt’s evidence36 in these proceedings and is attached hereto for ease ofreference. Notwithstanding, BC Hydro states in its submissions, at page 26,lines 22 – 25:

The materials continued to support that neither the federal norprovincial government recognized the Sinixt First Nation’s Interestin the vicinity of the Waneta Dam. Nothing in the new evidencereviewed rebutted that the federal government considers the Sinixt tobe extinct…

57. Without explanation, BC Hydro also fails to give consideration or weight tothe final paragraph of the opinion letter of Andrea A. Geiger, J.D., Ph.D., atExhibit C18-7, which clearly distinguishes between (a) the historical andanthropological fact of the continued existence of the Sinixt; and (b) thetermination, by way of legal instrument, of the Arrow Lakes Band for the

36 Exhibit E of the Affidavit of Vance Robert Campbell, Volume II of the Plaintiff’s Motion Recordin Robert Watt v. HMTQ; uploaded to BCUC.COM as file Exhibit C18-4-7

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purposes of statutory rights under the Indian Act. Geiger clearly warnsagainst conflating these two separate concepts.

58. In light of the federal government’s position as articulated in the Irwin letter,and the clarity provided by Geiger, it cannot be said that federal governmentconsiders the Sinixt to be extinct. It is discouraging that BC Hydro’smisconstruction of the facts in that regard constitutes the foremost statementthat that BC Hydro sets out in its submissions with respect to the Sinixt.

E. Reduced Demographic Presence in Canada

59. The failure of the Sinixt to maintain its status as a band of registered personsunder the Indian Act says absolutely nothing about the status of the Sinixt asaboriginal people of Canada with rights under Section 35 of theConstitution. The federal government applied flawed and arbitrary criteriato the determination of which aboriginals were eligible for registration andwhich band they ought to belong to. Further, the federal governmentmanipulated its classification criteria so as to suit its agenda with respect togaining access to timber resources.

60. The historical facts that contextualize the federal government’sdisenfranchisement of the Sinixt from the Indian Act overlap with the factsthat account for the reduced presence of the Sinixt in Canada, as cited above.In coming to terms with these facts, we emphasize the importance of AndreaGeiger’s paper as attached as Exhibit B to her Affidavit which is in evidenceas Exhibit C18-4-8 at page 20 of the PDF or page 269 of the Watt MotionRecord in which her Affidavit is included.

61. BC Hydro argues that the Sinixt vacated the area at the mouth of the Pendd’Oreille River by 1900. This demographic phenomenon is described atpage 14 of Bouchard and Kennedy 2005:

Native people speaking the Lakes dialect of the Okanagan-Colvillelanguage did utilize the Waneta Hydroelectric Expansion Projectarea traditionally. However the Lakes people underwent ademographic transition during the middle of the 19th century, whichsaw them shift their primary settlements and the focus of theirsubsistence activity south, to the vicinity of Kettle Falls,Washington. By the early 1870s, when the Colville IndianReservation was established in Washington State, most of the Lakes

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people were living south of the Canada/US border. Still, the Lakescontinued to use and occupy the Waneta area for several decadesafter this period of demographic transition, and some Lakes people— often intermarried with members of other tribes — maintained afew settlements in the area (see section 3.1). The more systematicLakes use of Waneta and the surrounding area was severely lessenedby the time ethnographers began to study these people in the early20th century.

62. The Sinixt’s shift away from their village sites at the mouth of the Pendd’Oreille River, must be understood and assessed in the context of thedisruptive and coercive impact of the colonization process.

63. The reserve land that the federal government provided to the Sinixt inCanada was inadequate. Staying on the established reserve at Oatscott wasincompatible with their mode of survival, but those who did not stay on thereserve were omitted from registration under the Indian Act and weredisenfranchised, along with their descendants, from their statutory rights inCanada. Further, the Sinixt were denied a reserve that they requested in alocation where they could maintain a viable community. While they werenot provided for by the government in Canada, where 80% of their territorylay, the U.S. government provided them with ample reserve land, where theymigrated for the sake of protection from persecution by the settlerpopulation in Canada. As a cross-border people, they were caught betweentwo larger nation states, where the establishment of an international border,dissecting their ancestral territory, restricted their ability to access theirCanadian territory, including the Pend d’Oreille site.

64. Under the circumstances of the disruptive and coercive impact of thecolonization process on the Sinixt, their absence from the mouth of the Pendd’Oreille cannot constitute abandonment of their aboriginal rights in relationto the land and water resources of that site.

65. The disruptive and coercive impact of the colonization process gives rise tocircumstances which arguably relax or vitiate the ongoing nexusrequirement of the aboriginal title test. As such, the modern absence of theSinixt from their village sites on the Pend d’Oreille carries diminishedweight in the context of an assessment of the strength of the Sinixt’saboriginal title claim.

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66. Further and in the alternative, the documented evidence37 indicates that,while most of the Sinixt had relocated their winter villages into Americanterritory by the early 20th century, Sinixt people still continued to comenorth into their traditional territory each year, particularly to hunt andharvest berries, notwithstanding the Canadian government’s failure toprovide for them. The Sinixt people wintered regularly in the north, andothers, such as the Christians, a Sinixt family well known around thetraditional Sinixt village site at kp'itl'els near Castlegar, wintered south ofthe border most years but spent much of the rest of the year in Canadianterritory notwithstanding their failed attempts to have the federalgovernment establish a reserve at kp'itl'els.

67. Further and in the alternative, the Sinixt have maintained a modern daynexus to the traditional Sinixt Territory as evidenced by the activitiesenumerated at paragraphs 29 to 39 of the Affidavit of Marilyn Jamesincluded in Exhibit C18-4-8 at page 1.

F. Actual Impact of Historical Infringement Not Determined

68. The true impact on the Sinixt resulting from the establishment of the WanetaDam has yet to be determined. The disruptive and coercive impact of thecolonization process on the Sinixt resulted in a southern migration of theSinixt and their absence from their traditional village sites at the mouth ofthe Pend d’Oreille. In the event that a Court were to address and remedy theunjust disenfranchisement of the Sinixt from their Canadian territorypreceding the construction of the Waneta Dam, the impact of thatconstruction would have to be imputed so as to determine what the impact ofthe dam would have been in the event that the Sinixt had not beencompelled, by the pressures of colonization, towards a southern migration.

69. BC Hydro’s treatment of the impact issue is extremely shallow. Not onlydoes BC Hydro fail to consider the impact of the dam in historical context,but it erroneously limits the analysis to a consideration of post-Transactionimpacts. BC Hydro treats the impacts of the Transaction in a historicalvacuum, as if the Waneta Dam was not constructed in the context of thehistorical colonization of the Sinixt people and the resulting infringement of

37 See, Exhibit Exhibit C18-4-5: Further Affidavit of Claire Wen, pp. 796 to 836, Record, Book 6 -Bouchard & Kennedy, Lakes Indian Ethnography and History (1985) [hereinafter “Bouchard &Kennedy 1985”].

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their rights in the absence of consultation. This constitutes an error in BCHydro’s consultation process.

G. Addressing Past Grievances is an Opportunity for Reconciliation that BCHydro is Compelled to Seize

70. BC Hydro states explicitly that the Transaction represents an “opportunity”for its ratepayers.38 This opportunity is particularized by BC Hydro in termsof the Transaction being “unquestionably priced in a manner that should beattractive to ratepayers...attractive based on its economic value to BC Hydroand its customers, as compared to any identified alternatives”.39

71. To avail itself of this opportunity, BC Hydro is succeeding Tek as thebeneficiary of a dam that was built in the absence of consultation with theSinixt with the effect of establishing a massive physical obstacle to thecultural, economic, social and spiritual revival of the Sinixt and aninfringement of the Sinixt’s aboriginal rights.

72. By signing the APA, BC Hydro has contemplated a transfer of ownership of(part of) the Waneta Dam. With that transfer comes BC Hydro’s acquisitionof a legacy of infringement and interference, along with an opportunity todischarge the honour of the Crown by consulting, accommodating andreconciling with the Sinixt with respect to that legacy.

73. Addressing past grievances is an opportunity that BC Hydro is compelled toseize in the context of the Transaction so as to maintain the honour of theCrown. Regrettably, BC Hydro has balked at this opportunity and taken theposition past grievances are not relevant unless the Transaction in itselfrevives past infringements so as to further impact First Nations’ interests.BC Hydro states: “unless the Transaction creates a new additional impact onFirst Nations’ interests caused by past infringements or makes continuationof past infringement more likely, consultation with respect to pastgrievances is not a required element of honourable conduct.” 40

74. In response, we say:

38 See BC Hydro’s Submissions at page 3, lines 23 – 2839 See BC Hydro’s Submissions at page 4, lines 3 – 4 and 13 – 14; and at page 6, line 2940 See BC Hydro’s Submissions at page 33, lines 5 - 10

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a. the Transaction reinforces and entrenches the continuation of pastinfringements and therefore requires consultation with respect tothose past infringements; and

b. even where there are no additional impacts or no reinforcement ofpast infringements, the honour of the Crown requires consultationwith respect to past infringements.

75. We address each of these positions in sequence.

H. BC Hydro Must Address Past Grievances Because Transaction EntrenchesContinuation of Past Impacts

76. The impact of the Waneta Dam is not merely historical but, rather, iscontinuing on a daily basis. As the Dam continues to disrupt navigation andfishing on the Pend d’Oreille, it continues to impede the exercise by theSinixt of their aboriginal rights in that regard. Furthermore, as the Damcontinues to cause ancient Sinixt village lands to be flooded, it impedesarcheological investigation into the Sinixt’s historical occupation of thoselands. By way of the Transaction, BC Hydro is enabling Tek to continuethe operation of the Dam in an economic climate that would otherwise havethreatened Tek’s continuation. Putting the Waneta Dam in the hands of aCrown corporation entrenches its operations for decades to come, whereas itwould otherwise be vulnerable to the unpredictable market forces of theprivate sector economy. BC Hydro has effectively stepped in as anunderwriter of a past infringement so as to ensure that infringementcontinues ad infinitum. In doing so, the Transaction brings to life pastinfringements in a manner that further impacts on the Sinixt’s interests.

I. BC Hydro Must Address Past Grievances Where No New Impact Occurs

77. Even where the impacts of the Waneta Dam can be characterized ashistorical impacts, BC Hydro is taking commercial advantage of an assumedinfringement and it thereby becomes duty-bound to consult with respect tothe past infringements assumed.

78. The honour of the Crown does not allow the Crown to deal in looted assets,deriving a benefit from those looted assets while purporting to distance itselffrom the moral responsibility attached to those assets, particularly, the

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responsibility to strive for reconciliation with the victims of the looting.This moral responsibility attaches a fortiori to the Crown with respect tohistorical impacts on aboriginal people.

79. If the Sinixt people were not a broken people as a result of the pressures ofcolonization, then the exigency of addressing past infringements wouldperhaps not be as pressing. But the fact is that the Sinixt still suffer fromopen wounds as a result of the disruptive and coercive impact of thecolonization process, including the damming of their waterways. Thesedams along the traditional transportation and fishing routes of the Sinixt arelike nails in the coffin of the Sinixt; they are impediments to the cultural,economic, social and spiritual revival of the Sinixt. It is ludicrous to thinkthat BC Hydro, as a Crown corporation, can now step in as a profiteer fromone such set of nails, without consulting, accommodating and reconcilingwith the Sinixt with respect to the historical impact of the damage.

80. The Sinixt were never consulted with respect to the establishment of theWaneta Dam. BC Hydro would like to think that it can insulate itself fromhaving to consult the Sinixt with respect to the historical impacts of theWaneta Dam. This is tantamount to knowingly acquiring and profiting fromstolen goods without consulting with the known victim of the historicaltheft. The honour of the Crown requires BC Hydro to acknowledge thechain of moral responsibility that attaches to the Waneta Dam and toconsult, accommodate and reconcile with the Sinixt in that regard.

81. By further analogy, a purchaser of real property subject to environmentalcontamination liabilities assumes those liabilities and becomes responsiblefor remediation those environmental issues, notwithstanding that theyoriginated in historical transgressions that precede the new ownership.

82. If the Crown could insulate itself from the moral responsibility ofconsulting, accommodating and reconciling with respect to pastinfringements in the manner suggested by BC Hydro, a precedent would becreated for the Crown to use the private sector as a front for the acquisitionof resource related assets in a manner which cleanses those assets of thecosts associated with aboriginal consultation, accommodation andreconciliation. Albeit through the acquisition of a “passive interest” in alongstanding facility, BC Hydro stands to engage in a form of passiveinfringement into aboriginal rights without having to consult with respect tothe historical impacts of those infringements.

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83. The mischief is in the failure of a Crown agent to avail itself of anopportunity to further the process of reconciliation that was recentlyreferenced in the landmark B.C. Supreme Court case of Tsilhqot'in Nation v.British Columbia (supra).

84. At page 34, BC Hydro relies on paragraph 82 of Gitxsan v. BC for theproposition that, in the absence of new impacts, the issue of pastinfringements would not have affected the duty to consult analysis in thatcase. We disagree. Paragraph 82 of Gitxsan does not stand for thatproposition and BC Hydro is relying on complete conjecture in speculatingas to what the duty to consult analysis would have looked like in the absenceof findings of new infringements.

85. At paragraph 12 of Carrier Sekani Tribal Council v. B.C.U.C. [2009] B.C.J.No. 259, the Court states that “the Commission was wrong in narrowing theinquiry to the “new physical impacts” and ignoring other “non-physicalimpacts” affecting the appellant’s interests.

86. The Carrier Sekani decision stands for the proposition that the duty toconsult is triggered notwithstanding the absence of new physical impact. Itfollows that historical impacts trigger the duty to consult. If such historicalimpacts trigger the duty to consult in the absence of new impacts, thenhistorical impact is, in itself, relevant to the duty to consult analysis andrelevant to the determination of the appropriate level of consultation andaccommodation.

87. In the Carrier Sekani decision, the B.C. Court of Appeal at paragraph 64stated that the fact of BC Hydro’s participation in past infringementsconstituted points that “may not carry the day for the appellant, but theappellant should have had the opportunity to develop them”. By thisstatement, the Court of Appeal is affirming the relevance of pastinfringement to the duty to consult analysis. While the Court queries howmuch weight would be given to these past infringement points, the Courtdefinitely affirms that they must be factored in as relevant to and arguable inthe duty to consult analysis. In that regard, BC Hydro failed and thereforedid not fulfill its consultation obligations to the Sinixt.

88. At page 35, lines 14 – 22 of its submissions, BC Hydro takes the alternativeposition that, if it was required to consult with respect to past grievances, itmet its obligation to do so. We disagree that BC Hydro met its obligationsin that regard. If BC Hydro “accepted and considered information

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concerning past grievances in respect of the construction and operation ofthe Waneta Dam”, as it claims41 to have done, such considerations certainlyare not apparent in its analysis with respect to the seriousness of impact ofthe Waneta Dam on the Sinixt. In characterizing the strength of the Sinixt’sclaim as low to moderate, BC Hydro explicitly relies on its finding that “theseriousness of any potential impacts from proceeding with the Transactionwas low”.42

89. BC Hydro demonstrates that, in its duty to consult analysis, it accorded norelevance to, and failed to consider the weight of, past infringementevidence. Notwithstanding that BC Hydro will be participating in the pastinfringements caused by the Waneta Dam, BC Hydro fails to even consideror factor those past infringements with respect to its duty to consult analysisin determining the appropriate level of consultation. Its dismissal of the pastinfringement as irrelevant is inconsistent with the Court of Appeal’sdecision in Carrier Sekani. This is a fatal error in the consultation processthat, as we shall see below, is reflected in the conditions precedent in theAPA which BC Hydro mistakenly perceives as securing its right towithdraw from the Transaction if completing it would be inconsistent withthe honour of the Crown.

J. Non-Physical Impacts of the Waneta Transaction

90. There are many aspects of the APA which demonstrate that it is animportant decision in relation to the infringements of the Sinixt’s rights andtitle. The decision to enter the APA:

a. Approves an agreement that will confirm and mandate extendedoperation of the Waneta Dam ad infinitum and the Crown’sparticipation in the continuing infringement that results from same;

b. Authorizes the use of power resulting from diversions of water thatare causing existing impacts and infringements to the Sinixt;

c. Removes or affects Tek’s flexibility to release additional water fromthe diversion, because ownership of the dam will now be shared withBC Hydro;

41 See BC Hydro’s Submissions at page 33, lines 17 - 1842 See BC Hydro’s Submissions at page 19, lines 16 - 18

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d. Changes the operator of the Waneta Dam;

e. Changes in the objective of the dam by devoting power to BC Hydroas a public resource for enjoyment by its ratepayers;

f. Creates added incentives to maximize power sales (rather than re-lease water for conservation);

g. Affects the complexity required for proper environmentalmanagement - e.g. temperature, variable flows, timing, over-spillsetc. - in order to accommodate BC Hydro’s interests; and

h. Approves an agreement that contains no positive conditionsprotecting fish and First Nation’s rights.

91. Despite the jurisprudence pointing to the contrary, BC Hydro is not preparedto factor in the relevance of past impacts of existing operations, and insteadviews the APA solely as a financial model for the acquisition of an asset freefrom any moral responsibility associated with the past infringementsassociated with the establishment and continued operation of that asset.

92. There is nevertheless a clear impact on the Sinixt’s interests arising from theTransaction. The benefits of infringement, where once enjoyed by theprivate sector, now will become enjoyed by the public sector, with the fullpopulation of BC Hydro ratepayers deriving economic benefit from theimpediment that the Waneta Dam is causing to the cultural, spiritual, socialand economic rehabilitation of the Sinixt. This impact is really an impact on(and a setback to) the reconciliation process identified by the Court inTsilhqot'in Nation v. British Columbia [2007] B.C.J. No. 2465 where it wasstated respectively at paragraphs 1, 7 and 20:

1 Canada's multi-cultural society did not begin when variousEuropean nations colonized North America. Rather, multiculturalismon this continent had it genesis thousands of years ago with thereceding of the last great ice age. Waves of Aboriginal people sweptacross North America, establishing themselves in diversecommunities across the entire continent.…

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7 The present Canadian community is now faced with thechallenge of acknowledging past wrongs and of building aconsensual and lasting reconciliation with Aboriginal people. Trialsin a courtroom have the inevitable downside of producing winnersand losers. My hope is that this judgment will shine new light on thepath of reconciliation that lies ahead.…

20 More importantly, this judgment features Tsilhqot'in people asthey strive to assert their place as First Peoples within the fabric ofCanada's multi-cultural society. The richness of their language, thestory of their long history on this continent, the wisdom of their oraltraditions and the strength and depth of their characters are asignificant contribution to our society. Tsilhqot'in people havesurvived despite centuries of colonization. The central question iswhether Canadians can meet the challenges of decolonization.

K. Balance the Commercial Opportunity with the Opportunity forReconciliation

93. BC Hydro states explicitly that the Transaction represents an “opportunity”for its ratepayers.43 This opportunity is particularized by BC Hydro in termsof the Transaction being “unquestionably priced in a manner that should beattractive to ratepayers...attractive based on its economic value to BC Hydroand its customers, as compared to any identified alternatives”.44 TheTransaction is an opportunity for BC Hydro to take commercial advantageof an assumed infringement on a massive scale, as was the case in CarrierSekani Tribal Council v. B.C.U.C. [2009] B.C.J. No. 259, as stated in thatcase at paragraph 13.

94. At the same time, we say that the Transaction presents an opportunity forconsultation, accommodation and reconciliation with respect to theHistorical Injustice. By way of the Transaction, BC Hydro is putting itselfin a position of being able to consult, accommodate and reconcile withrespect to past infringements. This is an opportunity for healing old woundsthat stand as obstacles to Canada’s status as a just society.

43 See BC Hydro’s Submissions at page 3, lines 23 – 2844 See BC Hydro’s Submissions at page 4, lines 3 – 4 and 13 – 14; and at page 6, line 29

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95. It would be dishonourable for the Crown to pursue the commercialopportunity while failing to act on its duty to realize the parallel opportunityfor reconciliation. This is particularly so, given that the economic benefits ofthe Transactions stand in contrast to the interference with the pre-contactaboriginal economy that was underscored by the establishment of theWaneta Dam and the resulting infringement of the Sinixt’s aboriginal rights.

96. In the absence of consultation, accommodation and reconciliation withrespect to the Historical Injustice, the Transaction, while availing a financialbenefit to BC Hydro and its ratepayers, represents an externalization of thehuman costs that arise, on a continuous basis, from the Waneta diversion.We point to an externalization of costs in asserting that the Sinixt have bornethe true human costs of the dam: a diversion which contributed to thepermanent interference with their way of life.

L. Anthropological Facts Relating to the Impact on the Sinixt Way of Life Dueto the Waneta Dam

i. Cessation of Salmon Run

97. It is BC Hydro’s contention that the Sinixt were not in the area when theWaneta Dam was being built so it could not have impacted their way of life.However, this is one of many important factors that did alter the Sinixt wayof life. The dam installations on the Columbia River and its tributariescompletely altered the Sinixt way of life by restricting boat travel andforever blocking the anadromous salmon from running the rivers. Below areseveral compiled quotations from the various reports demonstrating earlyhistorical oral testimony about the Sinixt or Lakes way of life that wouldhave been altered by the Waneta Dam construction.

98. Bouchard and Kennedy (2005:104) state that fish was one of the Sinixt’smain subsistence items and that there has been a significant fisheryidentified in the vicinity of the proposed Waneta Hydroelectric ExpansionProject. This fishery has oral documentation provided by Bouchard andKennedy (2005:31). Mary Marchand, a Sinixt member, testified that the siteof Nkw’lila7 village (near the Waneta Dam) has oral history as a Sinixtwinter village and that both she and her parents were born in the village.This village and burial ground at the mouth of the Pend d’Oreille is alsocited to be an important fishery (Mohs 46).

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a. Mohs (p 11) indicates that early historic accounts of Ross Cox in1814 testify that the Sinixt “subsist principally on fish (Cox1957:265)”.

b. Mohs (p. 12) goes on to state “Work notes that the Indians of theLakes were processing salmon for winter, some of which heprocured from a small group camped at the Narrows”.

c. Mohs (p. 18) cites Teit (1930:211) who documents the Sinixt“Making a barrier for salmon” which is likely a fishing weir, acommon technology used in fishing salmon by First Nations groupsto mass harvest the predictable and abundant anadromous fishresource.

d. Mohs (p. 28) cites Bouchard and Kennedy 1975 on the fishingpractices of the Sinixt which included poisoning, line fishing,trolling, spearing and gathering with baskets and weirs.

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ii. The end of boat travel

99. Bouchard and Kennedy (2005:88) document sturgeon nosed canoes beingbuilt and used distinctly by the Sinixt to navigate through the terrain. Thereare specific names in the Sinixt dialect for these canoes, Tl’iyí7 meaning thebark canoe. Mohs (p. 24) cites Ray (1936) in documenting that boat travelwas essential in this terrain and the main technique used to travel throughthe Sinixt traditional territory.

Mohs (p.25) cites Elmendorf (1935:36) stressing the importance of boattravel where all goods of the summer months’ fishing/hunting/gatheringwould be transported back north to the winter village via canoe.

Bouchard and Kennedy (2005:33) document oral testimony of boatbuilding in the Sheep Creek Village eight kilometers south of theCanada/US border.

Mohs (p. 27) states that the Sinixt also used canoes to hunt other animalssuch as deer whereby they would be driven to the river water and therekilled by men in canoes.

M. Ex-post Facto Consultation: A Matter of Process rather than Substance

1. BC Hydro places much emphasis on the extensive transparent record,including a complete log of all of its dealings with First Nations, in relationto the Transaction. We say that BC Hydro places too much emphasis on theprocess of consultation rather than on the substantive elements ofconsultation.

2. Moreover, we say that BC Hydro has gone through the procedural motionsof consultation on an ex post facto basis after having already commenced thetransactional process.

3. BC Hydro cannot take the position that it sincerely engaged in meaningfulconsultation so as to inform its “decision”45 as to whether or not to engage inthe Transaction. In fact, BC Hydro commenced the Transaction and,thereafter, engaged in a perfunctory “process” of consultation to justify the

45 See BC Hydro’s Submissions at page 9, line 9See BC Hydro’s Submissions at page 18, lines 8 - 10

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transaction on an ex-post facto basis. This is not consultation. This is thesemblance of consultation.

4. This cart before the horse approach is inconsistent with the fundamentalnotion that consultation, in order to be meaningful, should precede thegovernment action which triggers the obligation to consult. Consultation onan ex post facto basis cannot amount to the meaningful realization ofaboriginal rights as protected under Section 35 of the Constitution.

5. A Constitutional right is not satisfied on a pro forma basis by going thoughthe motions of consultation on an ex post facto basis. An essential elementto the meaningful exercise of the Constitutional right is that consultationprecedes the government action which is subject to the corresponding dutyto consult.

6. BC Hydro’s decision to execute the APA could not have been consistentwith the honour of the Crown for the reason that BC Hydro made thedecision to sign the APA in the absence of having fulfilled its consultationobligations. In fact, at the time of executing the APA, BC Hydro had noteven met with the Sinixt. This is ironic, as BC Hydro had assessed theSinixt’s claim as being the strongest out of all First Nations consulted.

7. There is no excuse for BC Hydro’s failure to make timely contact with theSinixt. While the Sinixt leaders, engaged in traditional gathering andceremonial practice, may have been difficult to reach, BC Hydro could havecontacted Sinixt counsel by telephone, fax and/or mail coordinates asdiscernable from the Sinixt’s aboriginal title writ, which is a matter of publicrecord.

N. Exit Clause Not Sufficient

8. At page 13 of its submissions, BC Hydro points to two conditions precedentin the APA that must be satisfied before BC Hydro is required to completethe Transaction. BC Hydro claims that the second of these conditionsprovides assurance that BC Hydro can withdraw from the Transaction ifcompleting it would be inconsistent with the honour of the Crown.

9. BC Hydro’s assurance in that regard is misplaced and confirms that BCHydro has approached consultation with a blindness to the relevance ofhistorical infringements associated with the Waneta Dam.

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10. A close reading of the second precondition reveals that it only allows BCHydro to withdraw from the Transaction in relation to the [future]occurrence of “an event or circumstance” that gives rise to reasonablegrounds on which to determine that completion of the Transaction would beinconsistent with maintaining the honour of the Crown. The precondition isclearly restricted so as to be triggered by a future occurrence and does nothave clear application to a prospective determination by BC Hydro that thehonour of the Crown is tainted by historical infringement.

11. In the APA, BC Hydro fails to provide for the prospect that, even in theabsence of the occurrence of an event or circumstance, the Transactioncould still be inconsistent with maintaining the honour of the Crown forreasons of historical infringements that pre-date the APA. The APA fails toprotect the honour of the Crown as it may be tainted through BC Hydro’sassumption of past infringements.

12. It is with a false sense of confidence that BC Hydro asserts, at page 14, lines6 – 7, of its submissions, that it “has secured its ability to withdraw from theTransaction if it is of the opinion that completing the Transaction would notbe honourable. An opinion to that effect, in the absence of an “event ofcircumstance occurring” would not serve as a sufficient basis for BC Hydroto withdraw from the Transaction.

13. BC Hydro did not meet with the Sinixt or receive direct input from FirstNations prior to signing the APA. “BC Hydro concluded it could sign theAPA anyway because the agreement was far from an unequivocalcommitment to proceed with the Transaction.”46 But we say that the secondprecondition is inadequate to provide BC Hydro with a sufficient basis forwithdrawing from the transaction.

14. Further, the second precondition reveals BC Hydro’s bias and limitedorientation towards the determination of the honour of the Crown. BCHydro has only factored post-Transaction impacts into its consultationprocess and has only allowed itself to withdraw from the Transaction in theevent that post-Transaction impacts materialize by way of the [future]occurrence of an event or circumstance. BC Hydro has revealed that it hascompletely failed to factor into its analysis the prospect that historical

46

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infringements should be considered (and given weight) in the course ofconsulting, accommodating and reconciling with the Sinixt.

15. BC Hydro’s approach to the preconditions in the APA reveals a larger flawin BC Hydro’s approach to consultation. That flaw is BC Hydro’s completeblindness and failure to consider that inconsistency with honour of theCrown may exist by virtue of historical infringements / impacts that wouldbecome assumed by BC Hydro as a result of the Transaction.

O. Consultation Errors in Determining Issue of “Aboriginals of Canada”

16. BC Hydro argues, at page 26, lines 23 – 27, that “nothing in the newevidence reviewed rebutted that the …provincial government has stated thatit is not clear at this time whether the Sinixt are “an aboriginal people ofCanada” as referred to in section 45 [sic] of the Constitution Act, 1982.”

17. BC Hydro’s statement in that regard is inconsistent with the fact, admitted toby BC Hydro at lines 27 – 28 of page 26, that the Sinixt did provide expertopinions supporting that they are an Aboriginal people of Canada. There isno evidence of BC Hydro having given any consideration to these expertopinions, with the result that BC Hydro errs in concluding that the newevidence reviewed failed to rebut the provincial government’s position.

18. Further, we submit that BC Hydro abrogates its consultation obligations tothe Sinixt by relying on the untested positions of the provincial governmentwith respect to a question of law. Given that BC Hydro relies on theuntested hearsay policy positions of the provincial government asdetermined outside of the consultation process, it cannot be said that BCHydro is engaging in consultation. In fact, they are bringing predeterminedpositions to the consultation process, so that the outcome of the consultationprocess is also predetermined in the absence of full consideration ofinformation provided by the Sinixt.

P. Dunsmuir is Not Applicable

19. BC Hydro, at page 11 of its submissions, erroneously relies on the SupremeCourt of Canada’s decision in Dunsmuir v. New Brunswick for theproposition that the Commission should adopt a deferential standard ofreview in assessing the adequacy of BC Hydro’s consultation process. In

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response, we say that Dunsmuir is not applicable. BC Hydro’s consultationprocess is not an adjudicative process nor a process where an administrativeofficial is exercising powers conferred under statute. The process ofconsultation by a Crown corporation does not attract administrative lawprinciples of curial deference.

20. Further and in the alternative, Dunsmuir did not change the fact that theapplicable standard of review is correctness with respect to questions ofConstitutional law, which would include consultation in fulfillment ofaboriginal rights protected under Section 35 of the Constitution.

Q. Are the Sinixt a Distinctive Culture / Tribal Entity to Which DiscreteAboriginal Rights Attach?

21. We say that the Sinixt are a distinctive culture and First Nation to whichdiscrete aboriginal rights attach. In particular, we say that the Sinixt aredistinct from the ONA in that regard. In support of this assertion, weadvance the following facts:

i. Language affiliation and variation between the ONA and the Sinixt Nation.

22. As strongly demonstrated in the report submitted by Bouchard and Kennedy(2005), the Sinixt or Lake Salish are a Salish speaking people. However,their language is a distinct dialect of Salish from that of the Okanagan whichis more related to the Colville [The Lakes Salish by Gordon Mohs, 1982, atExhibit C18-8-1 hereinafter referred to as “Mohs 2”].

23. Apart from only a few, every First Nation Tribe on the Canadian Plateauspoke some variant of Salish from the Rocky Mountains in the east, as farnorth as the headwaters of the Fraser River, west to the Cascades and as farsouth as Kettle Falls, which encompasses many different people (Mohs 2).This excludes the Ktunaxa Nation and inhabitants of a small area around theNicola and Similkameen Rivers who were Athabaskan language speakers.So the variants of the Sinixt from the Okanagan are probably verysignificant and mark them as separate First Nations.

ii. Culture area analysis by respected cultural anthropologists

24. Cultural history analysis is what Mohs (p. 3) points to as the problem; ie.that proper cultural and historical research was not conducted to validate the

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claims of Turney-High (1941 in KNA Intervenor-Evidence) that the Sinixtwere not a distinct people from the Okanagan. In contrast, manyanthropologists who did conduct proper cultural historical analysis alldefined the Lakes or Sinixt as distinct from the Okanagan (See enclosedmaps).

25. Every cultural anthropologist that defined the area of the Pacific Northwestcalled the “Canadian and Columbia Plateaus” divided the Lakes as distinctfrom the Okanagan. It is the professional opinion of Dr. Nathan Goodale inExhibit C18-9 that the recording of the Sinixt or Lakes Indians as distinctfrom the Okanagan by multiple well respected anthropologists is concreteevidence that they are in fact distinct from the Okanagan. This is inaccordance with BC Hydro conclusion that “The material reviewed furtherindicated that the Sinixt had a historic presence at the mouth of the Pendd’Oreille River in the vicinity of the Waneta Dam and that the Sinixt were adistinct group from the Northern Okanagan.” (BC Hydro FinalArgument:23).

iii. Archaeological Correlates as Identified by Goodale

26. The Sinixt traditional Territory contains a distinct tradition in building verylarge houses earlier than any others known in the Interior Pacific Northwest.

iv. Distinct Human Burial Practices Identified by Goodale

27. The burial patterns in the area the Sinixt claim as ancestral territory are veryunique and unlike the practices of any other First Nation group in theInterior Pacific Northwest. Mohs (1982) discusses the burials found at theVallican site, now occupied by the Sinixt. Human remains are buried flexedin an upright position and facing south. As well, burials are usually not inclose proximity to a village. A few burials excavated by Mohs (1982) atVallican also had a considerable amount of grave goods whicharchaeologists usually associate with high status individuals. In addition,grave goods are also associated with a fetus burial which may indicateascribed (based on heredity) status in prehistory, a characteristic of theethnographic accounts of the Sinixt. Several burials containing grave goodshave a significant amount (on the order of thousands) of historic glass beadsthat demonstrate the presence of the Sinixt in the area as early Europeanscame through the area and traded goods.

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v. Grinding Stone Industry Identified by Goodale

28. One item of material culture is very unique to the Sinixt which includes theuse of an abundant amount of grinding or pounding stone tools. This isdistinct from the archaeology of the Okanagan. There is also anethnographic correlate to these grinding and pounding tools discussed inBouchard and Kennedy (2005:103). Several of these tools have carvingsthat resemble local geographic landmarks (such as grinding tools with acarved frog’s head resembling the peak of Frog Mountain in the SlocanValley) having oral tradition significance to the Sinixt (Marilyn Jamespersonal communication). The items bearing aspects of the local geographywere found as far north as the North Arrow Lake to as far south asCastlegar, BC.

vi. Defensive Earthworks Identified by Goodale

29. Defensive earthworks have been found in the Sinixt traditional territory thatare unknown in other parts of the Canadian Plateau also making themculturally distinctive from the Okanagan.

R. BC Hydro Errs in Giving Weight to ONA Evidence

30. As a result of the weight BC Hydro gives to the ONA’s assertion that theSinixt are not a distinct nation, BC Hydro determines that the strength of theSinixt’s claim remains low to moderate. Specifically, BC Hydro states, atpage 28, lines 20 – 24:

With respect to the Sinixt Nation, the materials reviewed continuedto support the conclusion that an ultimately successful claim by theSinixt remained possible, but new evidence provided by other FirstNations (namely the ONA) suggested that the Sinixt would facesignificant challenges to this claim, and therefore the likelihood ofthe success of the claim remains low to moderate.

31. BC Hydro errs in giving weight to the ONA’s evidence in that regard andfails to give sufficient weight to the treatment of the Sinixt as a distinctpeople, as clearly set out in the various ethnographic reports in evidence,including Bouchard and Kennedy 2004.

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32. The ONA make the mistake of associating themselves with the Sinixt byvirtue of their connection to the members of the Arrow Lakes Band. It mustbe remembered that the Arrow Lakes Band is a post-contact entity createdunder the colonial race classification system on the basis of arbitrary criteria.The manner in which bands under the Indian Act are constituted does notgive rise to Section 35 aboriginal rights which are based on the pre-contactreality of aboriginal societies.

33. The fact that some of the Arrow Lakes Band members may have had someOkanagan blood does not render the Sinixt part of the ONA’s expansiveempire. The Sinixt have always been, and remain to this day, a distinctaboriginal society to which discrete aboriginal rights attach.

S. Counsel for the ONA Conflicted

34. The law firm of Mandell Pinder, counsel for the Okanagan, representedMarilyn James together with John Marchand and Leonard George in their1992 representative action on behalf of the Arrow Lake Tribe [Marchand,George and others v. Molnar et al. BCSC File #396 (Nelson) (“the MolnarLitigation”)].

35. In the context of the Molnar Litigation, Mandell Pinder was privy to clientinformation emanating from Marilyn James and others pursuant to whichMandell Pinder asserted positions relating to subject matter of tribal identitywhich is contested between the ONA and the Sinixt in the instantproceedings.

36. We have in our possession a draft Agreed Statement of Facts, presumablydrafted by Mandell Pinder in the Molnar Litigation, which states:

4. The Tribe of “Arrow Lakes” is a sub-group of the larger groupknown as Interior Salish Peoples. These peoples lived a semi-nomadic, hunting and gathering cycle from the Okanagan in theWest; North to the Shuswap; East to the region now called Creston;and South to Spokane, Washington. Their language group isSalishan.

*Tab 3 Map #1 sets out the territory of the Interior Salish

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5. Closely associated Tribes of the Arrow Lakes Tribe (Sngaytskstx)are the Okanagan to the West, the Kutenai to the East, the Shuswapto the North, and the Spokane to the South.

6. The Lakes (Sngaytskstx) lived for the most part on the ColumbiaRiver from Kettle Falls and up the Kootenay regularly to the SlocanRiver and beyond on the Kootenay Lake, up the Slocan to theNorthern end of the Arrow Lakes chain (Arrowhead) and down theArrow Lakes to Castlegar and the Rivers’ junction again. The shapeof their territory confirmed to their routes of water travel.

37. The Agreed Statement of Facts goes on, at paragraph 7(c), to quote the 1982report of Archaeologist Gordon Mohs, the very document relied on by myclient in the Instant Proceedings.

38. The position taken by Mandell Pinder on behalf of “the Sngaytskstx” in theMolnar Litigation is inconsistent with the position that firm now takes onbehalf of the ONA in the instant proceedings.

39. Moreover, on behalf of the ONA, Mandell Pinder now asserts a positionwhich is adverse to the Sinixt’s position in the Instant Proceedings. Thefirm goes so far, on behalf of the ONA, to advance a position that would castdoubt on the Sinixt’s assertion that they were and are a distinct nation fromthe Okanagan.

40. Consequent to the position taken by the ONA in that regard, BC Hydro hasdetermined that the likelihood of the success of the Sinixt’s claim remainslow to moderate (BC Hydro’s December 9, 2009, submissions page 28, lines21 – 23). It is apparent that BC Hydro has given weight to the ONA’sposition – the very position that is adverse to the Sinixt’s position.

41. The Sinixt say that counsel for the ONA has a conflict of interest, due regardbeing had to the above-referenced circumstances. Further, it would seemthat the position advanced with respect to the ONA (regarding the fact thatthe Sinixt are part of their empire) is weakened by the inconsistencybetween the respective positions advanced by Mandell Pinder in 1992 and inthe current proceedings.

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T. Conclusions

42. BC Hydro’s preliminary and final assessments of the strength of the Sinixt’sclaim are flawed. In particular:

a. BC Hydro erroneously relies on an archeological record that isincomplete due to the flooding of village sites caused by constructionof the Waneta Dam prior to the collection of an archeological record;

b. BC Hydro misconstrues the “extinction” and the federalgovernment’s position in that regard and, furthermore, BC Hydrodemonstrably fails to consider relevant evidence such as the Irwinletter and Geiger opinion regarding same;

c. BC Hydro gives excessive weight to the demographic decline of theSinixt in Canada in the 20th century; fails to give appropriateconsideration that this decline occurred under the disruptive andcoercive impact of the colonization; and fails to recognize that thesouthern migration of the Sinixt under such circumstances cannothonourably be construed as an abandonment of their aboriginal rightsin relation to their Territory;

d. BC Hydro’s treatment of the impact issue is extremely shallow. Notonly does BC Hydro fail to consider the impact of the Waneta Damin historical context, but the Crown agent erroneously limits theanalysis to a consideration of post-Transaction impacts;

e. BC Hydro improperly gives weight to the provincial government’sposition on a legal question of whether the Sinixt are aboriginalpeoples of Canada and, furthermore, fails to give sufficient weight tothe Sinixt’s evidence which rebut the province’s lack of clarity inthat regard; and

f. BC Hydro errs by giving weight to the ONA’s challenge to the factthat the Sinixt are a distinctive culture and BC Hydro fails to givesufficient consideration and weight to the breadth of evidence thataffirms the distinctness of the Sinixt in that regard.

g. As a result of BC Hydro’s flawed preliminary and final assessmentsof the Sinixt’s claim on the basis of the above-reference errors, BC

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Hydro incorrectly characterizes the strength of the Sinixt’s claim aslow to moderate.

43. BC Hydro failed to discharge its consultation obligations to the Sinixt by:

a. engaging in the semblance of a consultation process on an ex postfacto basis after having already commenced the transactional processwhich is subject to consultation;

b. executing the APA in the absence of having met with the Sinixt andin the absence of having fulfilled its consultation obligations to theSinixt;

c. failing to secure a sufficient basis for withdrawing from the APA inthe event that the Transaction is determined to be inconsistent withthe honour of the Crown on grounds relating to BC Hydro’sassumption of past infringements;

d. engaging in a flawed preliminary and final assessment of the strengthof the Sinixt’s claim; and

e. failing to act on clear opportunities arising out of the Transaction, forreconciliation with the Sinixt with respect to the establishment of theWaneta Dam as an obstacle to the cultural, economic, social andspiritual revival of the Sinixt.

U. Order Sought

44. The Sinixt request that the Commission issue orders to the effect that:

a. BC Hydro’s consultation and accommodation of the Sinixt has beeninadequate to maintain the honour of the Crown in the context of theTransaction and the Commission declines to approve the associatedSchedule of Expenditures; and/or

b. The Commission declines to approve the Schedule of Expenditureson the ground that BC Hydro failed to maintain the honour of theCrown by executing the APA in the absence of having discharged itsconsultation obligations to the Sinixt.

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V. Costs

45. The Sinixt request an order of costs for its participation in these proceedingsin accordance with its previously submitted PACA funding budget.

All of which is respectfully submitted.

Sincerely,

DAVID M. AARONEncl.

cc: BCUC Project No. 3698565 Registered Intervenor Distribution Listcc: Chris W. Sanderson, Q.C.cc: client