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From: Aaron Detlor [mailto:aarondetlor@gmail.com]
Sent: September 25, 2012 8:27 PM
To: BoardSec; carolann.brewer@hydroone.com
Cc: BoardSec; HDI Hill; Batul Rahimtoola; Regulatory@hydroone.com; mengelberg@hydroone.com; maia.chase@ieso.ca; Miriam.Heinz@powerauthority.on.ca; relijah@cottfn.com; scott.smith@gowlings.com; Jock Hill; Charlene Deleary; Al Day; Brenda HDI; Blake Bomberry; Rick Hill; Brian Doolittle; Hazel Hill; Brenda Mitten; Ron Thomas; Wayne Hill
Subject: Board File No. EB-2012-0082 Our File No.: 030099-003 Haudenosaunee Development Institute Interrogatories

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Dear Ms. Brewer:

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RE:Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Board File No. EB-2012-0082Â Â Â Â Â Â Â Â Â

                                   Our File No.: 030099-003

                                   Haudenosaunee Development Institute  Interrogatories

                            Lambton to Longwood Transmission Upgrade Project ('Project)

                            Application for Leave to Construct Â

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Without prejudice to our position that we are entitled to an amended timetable please find our written interrogatories:

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1.        Has HONI received any delegation of authority, either specific or general, from the Province of Ontario in relation to engagement  dealing with Haudenosaunee treaty rights on this Project?

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           a.        If HONI has received any delegation of authority from the Province of Ontario please provide any supporting documentation including emails, letters, meeting notes, daytimer schedules, computer records, etc?

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           b.        If HONI has supporting documentation over which it may claim privilege will HONI please provide a list of the documents and a description of the document sufficient to identify.

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           c.        If HONI has not received any delegation of authority from the Province of Ontario does HONi take the position that HONI, as a private company, can undertake an engagement process which upholds the fiduciary relationship established by the 1701 treaty?

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2.        Does HONI agree that the Province of Ontario is obligated to uphold the highest standards of conduct in the interpretation and implementation of Haudenosaunee treaties including the 1701 treaty?

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3.        Does HONI recognize that the 1701 Treaty provides Haudenosaunee with treaty rights over that area of land contemplated by the Project?

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4.        Does HONI have any knowledge information or belief in relation to the content of the Treaty of 1701 and/or the geographical extent of the Treaty of 1701 and if so please provide any and all documents in the power possession or control of HONI which touch upon, deal with or mention the Treaty of 1701?

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5.        Does HONI have any knowledge information or belief to suggest that the Haudenosaunee Development Institute has not been granted full authority to represent Haudensaunee interests in relation to the 1701 Treaty?

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6.        Does HONI take the position that  it is  not obligated to engage with the HCCC's representative institution, HDI, as contemplated by Article 32(2) of the United Nations Declaration on the Rights of Indigenous People which states that?

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(2)Â Â Â Â Â Â Â States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.

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7.        Does HONI take the position that it is not obligated to provide notification to HCCC and/or HDI  where it has unilaterally determined that the Project will have a minute impact on treaty rights?

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           a.        Does HONI take the position that it is never obligated to notify the Haudenosaunee rights holder of Projects within Haudenosaunee treaty territories?

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           b.        If HONI takes the position that it may be obligated to provide notice the Haudenosaunee rights holder when does HONI believe that the obligation arises?

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8.        What documents, information, notes, correspondence, or emails did HONI rely upon to conclude in its August 22, 2012 correspondence that the "likelihood that the Project will adversely impact any pending treaty or Aboriginal rights claimed by the Haudenosaunee is minute" and if there are documents etc please produce.

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9.        Why does HONI refer to Haudenosaunee treaty rights as pending?

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           a.        What knowledge information and/or belief does HONI have to suggest that Haudensaunee treaty rights are 'pending' versus established?

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           b.        Does HONI have any documents to support its position that Haudenosaunee treaty rights are 'pending' and if so please produce?

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10.      Did HONI (or any other Provincial entity) provide the Haudenosaunee and/or HDI the opportunity to set out and clarify rights in relation to the Project.

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           a.        If HONI did provide the HCCC and/or HDI the opportunity to set out and clarify rights and interests please advise in what manner and any documentation in support.

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11.      Is HONI aware of the MInistry of Environment's list of 'First Nations" which must be notified in relation to renewable energy projects proceeding by way of O. Reg 359/09?

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           a.        Is HONI aware that the HCCC is on that list?

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           b.        Is HONI aware that the Ministry of Environment has confirmed that HDI is the representative body of HCCC in relation to notification required by O.Reg. 359/09?

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12.      Is HONI aware of the communications protocol entered into between the HCCC and the Ministry of Aboriginal Affair on or about June 2, 2012?

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13.      If HONI is aware of the communications protocol when did HONI become aware of the communications protocol?

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           a.         Please provide any documentation in support of HONI's awareness of the communications protocol.

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           b.        Is HONI aware that the HDI is recognized in the communications protocol as the representative institution for the HCCC?

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14.      Has HONI or is HONI aware of any inquiry undertaken by HONI and/or any other federal or provincial entity to rigorously review the wording of the 1701 treaty including the details of the negotiations of the 1701 Treaty and the specific promises made to the Haudenosaunee?

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               a.            If HONI is aware of any inquiry undertaken by HONI and/or any other provincial or federal entity please provide any and all documents associated with the inquiry?

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15.      Does HONI take any position in relation to limitations upon the exercise of its authority occasioned by s.109 of the Constitution Act, 1867? Â

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           a.        If HONI takes any position in relation to constraints imposed by s. 109 please provide any and all documents in support that position.

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16.      Does HONI have within its possession, power and/or control any expert reports dealing with, touching upon, or mentioning the 1701 Treaty and/or any other Haudenosaunee rights and/or interests?

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           a.        If HONI has any expert reports dealing with, touching upon, or mentioning the Haudenosaunee and/or 1701 Treaty please produce.

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17.      Does HONI recognize any difference between a duty to honour Treaty Rights and a duty to protect Treaty Rights?

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18.      Did HONI undertake any engagement with the Haudenosaunee in relation to the Long Term Energy Plan?

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19.      What sections of the proposed line are to be undertaken on provincially owned land (please provide maps)?

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20.      Has HONI undertaken any steps to ensure that any permits obtained or contemplated as set out in Exhibit I-1-7 Attachment 1 have been undertaken or will be undertaken with respect to common law, statutory and/or regulatory obligations including the obligation of any archaeologists to comply with Ministry of Tourism Sport and Culture guidelines?

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21.      Has HONI considered payment to the Haudenosaunee or to First Nations in regards to loss of harvesting opportunity in a similar manner by which to has considered the payment of  certain claims brought forward for the 2012 growing season which will be considered on a case by case basis?

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22.          Has HONI undertaken any inquiry into the impact of the line enabling the connection of approximately 300-500 MW additional renewable generation and the impact of that additional renewable generation upon Haudenosaunee harvesting rights?

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23.      Does HONI have any knowledge information and/or belief with respect to costs incurred by HONI in relation to HONI's inability to complete other transmission projects within the Province of Ontario because of Haudenosaunee rights and interests?

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24.      Does HONI have any policies, procedures and/or guidelines which would guide its engagement process with the HCCC and/or HDI?

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           a.        If HONI does have any such policies, procedures and/or guidelines please provide copies.

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Yours truly,

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Aaron DetlorÂ

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Aaron DetlorÂ

Barrister & SolicitorÂ
16 Sunrise CourtÂ
Suite 417Â
P.O. Box 714Â
Ohsweken ON N0A 1M0Â

Tel:519 445-4225Â
Fax:519 445-2389Â
Cell:416 819 8583Â

HYPERLINK "mailto:aarondetlor@gmail.com"aarondetlor@gmail.comÂ

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