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File No. CI07-01-50896

The Queen’s Bench
Winnipeg Centre

BETWEEN:

BRYAN DAVID OLIVER

Plaintiff,

- AND -

THE GOVERNMENT OF MANITOBA

Defendant.

AFFIDAVIT of BRYAN OLIVER

1. I am a resident of the community of Lake Francis in the Rural Municipality (RM) of

Woodlands, Manitoba. I have resided in this community for nearly my entire life. I have
lived in my house that I constructed with my own hands in 1983/84, which is now in the
flooded/ flood plain area. My home and land that is the subject of and affected in this
claim, is land that was adjacent to the family farm where I grew up and the entire area is
one that I have walked extensively from my childhood to the present day. I have included
an excerpt of my land location from a 1996 RM of Woodlands Land Ownership Map
Exhibit “A”.

2. In 1994, I, along with my wife Janie, purchased the farming operation at issue in this claim.
As a generational resident of this area and community, I knew of the history of this land
and the prior existing farm. Exhibit “B” is a historical map of the area in question included
in the Manitoba Water Stewardship Shoal Lakes Watershed Study. The high lighted area
shows the location of my farm and grain and stock are marked on my land location.
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Exhibit “C” is an excerpt from a local history book that shows this land as being
homesteaded and farmed before the Shoal Lakes were drained in the around the time of
World War I and made into the three separate lakes that have been in this form until 2005.
Exhibit “D” is an aerial picture of the prior farm from 1961, showing my farm operating
as a dairy farm. Exhibit “E” are various photos that I took which shows the flooding on
my land around the old homestead location. Although these photos were taken at various
times from 2001 to 2003, these conditions have occurred at various times up to the present.

3. In 1997, there were flooding conditions throughout much of Manitoba and our property
was seriously affected. I observed at the time that much of the drainage infrastructure in the
area; municipal and provincial, had been neglected and all the drainage downstream of my
property was inoperable. In the next years, I observed that numerous landowners in my
immediate area, in the surrounding Shoal Lake area and as well the provincial government
and my municipality, all conducted numerous drainage projects which drained water onto
mine and others near the Shoal Lakes, without no corresponding outlet for this water to
leave. I complained to my municipality but received no reply.

4. In 2000 and 2001, our farm was devastated. A court claim was filed, both for monetary
damages and also for an order to fix the drainage for my area, including my farm. In 2004,
an out of court settlement was reached, which included an agreement to fix the drainage
problems effecting my land. This agreement was agreed upon by the RM of Woodlands and
their legal representatives, John Arthur, on behalf of the Province of Manitoba (hereinafter
known as the province) and myself. John Arthur was the person whom the affiant in this
motion, Geoff Reimer replaced when John was removed from his job and transferred to
another area of the Province.

5. This work received approval from the province as per their drainage license program. On
or about April 2004, the work began on the construction of the drainage works. On the
second day of the construction, the province unilaterally had the work stopped and the
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drainage project was placed in limbo (see the Affidavit of Douglas Oliver) due to a
provincial moratorium. To this day, this drainage project is still in limbo and to my
knowledge, cannot proceed without the approval of Mr. Geoff Reimer and his department.

6. On or about 2002, I received a copy of the Final Report of the Shoal Lakes Water
Management Options, dated August 2002 Exhibit “F”. This report, to my belief, came
from the year 2000 discussions at the provincial level that were held concerning drainage
problems in the Shoal Lake area and I received a copy of the proposed drainage options on
or about July 20, 2000 Exhibit “G”. In my knowledge of the area, there is very little
difference from Route 2 shown in 2000 compared to the Wagon Creek Diversion Channel
shown on plate 9 of the October 2010 KGS report. For the most part, I agree with the
information in the 2002 report being correct, including Appendix C, the Manitoba Water
Policies Summary. These policies are what I have based my claim upon as I believe that the
Province of Manitoba has ignored these policies as they pertain to my neighbours and I,
and moreover, have implemented these policies for the benefit of other Manitobans to my
detriment.

7. In the fall of 2004, extreme wet conditions returned my farm to a state of disaster. Heavy
rains in 2005 and the conditions on my farm became intolerable. Throughout these years, I
was in constant contact with the councillors and staff of the Rural Municipality of
Woodlands in regard to the drainage works that were promised to me. Through these three
years and into 2007, no word was received from the province or their officials in regards to
the resumption of my drainage project. By 2007, the moratorium on drainage work in the
province was lifted, but my drainage project was still in limbo. My cattle herd was
liquidated as my farm could no longer support any semblance of what my business plan
had envisioned or what was needed to make this land economically viable. I filed this
claim in 2007, claiming damages against both the province and the Manitoba Crop
Insurance Corporation (now MASC). A factor in the timing of this was when I learned that
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instead of implementing the recommendations contained in the 2002 report, the Province
was going to spend more money on another Shoal Lakes Watershed Study.

8. In 2008, MASC had their claim dismissed, arguing that the Province of Manitoba set the
guidelines that they had to follow in regards to damage assistance and that my argument
was with the province.

9. Through 2007 to 2009, I answered interrogatories by the defendant as well as providing a

copy of a draft Amended Statement of Claim, which they rejected. One of the questions
that was asked by the defendant’s lawyer was the name of the provincial official that
agreed upon the drainage project at the centre of this claim. I answered that it was John
Arthur. Shortly afterwards, John Arthur was removed from his long time position and
replaced with the affiant Geoff Reimer.

10. In 2009 and 2010, I purchased and read several law books in preparation for moving this
claim forward, including Philip Osborne’s The Law of Torts and was preparing another
Amended Statement of Claim. By 2010/2011 however, the nature of my claim had
changed. By my observations and in constant conversations with municipal officials and
other land owners in the area, there was no longer anywhere in the Shoal Lakes area for the
water to run into as the water levels in the lakes were now at the same height as the water
standing on my land; by my measuring with a GPS device, some 20 feet higher than when I
purchased my farm in 1994. This, along with the dismissal of the MASC portion of my
claim, changed my claim from the one I filed in 2007 and much more investigation on my
part would be required.

11. On or about 2012, actions by the province changed the issues in contention again. Instead
of talking about the construction of the approved Wagon Creek Drain route to administer
and stabilize the water levels in the Shoal Lakes area, the province was promoting a
“voluntary” buyout of effected farms and farmland. At no time did the province or their
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officials contact me regarding this move and I could access little or no information without
signing up to be bought out. My understanding from the information that I did see and
hear, was that if I signed up for the buyout, I would have to forego my court claim as well
as any future right to sue regarding this event(s). At or about this time however, I obtained
a copy of a provincial list of land owners affected by the flooding, Exhibit “H”, and my
name appears on it, so I felt at some time, someone from the province would contact me.
No details of proposed purchase prices were available, either land or buildings, and to my
knowledge, all those people who took the buyout had to sign a non disclosure agreement
with the province. As I felt this left too much to chance for my and my family’s current and
future situation, I felt it was best to watch until this process worked it’s way forward, with
the province dealing with those who wished to leave, assuming that after this, the province
would then deal with the rest of the landowners on their list, including myself, who wished
to continue farming. To my knowledge, the province has not settled with all of the
landowners who had signed up for this voluntary buyout, so I am confused as to why they
would wish to dismiss my claim as the flooding has not ended or the conditions that caused
the buyout program to be enacted, changed.

12. By my observations, the provincial buyout scheme has been mired in much controversy. I
have seen and heard many public complaints from those involved; complaining of the low
value offers by the province, discrepancies in land appraisals used by the province to arrive
at land values and an overall process that has the province , whose negligence and actions
flooded the land which has farmers being offered only what land values the province has
decided for land that cannot be sold to anyone outside of the provincial government.

13. On or about August 2013, I investigated the area on foot along what is the proposed Wagon
Creek Drainage Option in the KGS study. This was partly in response to the claim
contained in this study as well as other public comments by provincial officials that there
was no historic drain from the Shoal Lakes. I had been told long ago by old long time
residents that there were extensive public works, including the construction of a railway
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line and drainage projects to support this line constructed early in the 20th century, and so I
set off to see what exactly could still be found. I had little difficulty in finding the old
railway bed which runs from Provincial Road 518 through pasture land and the south end
of the current Wagon Creek Drain (a provincial drain) which appears on the KGS maps as
along side the location of this bed. This railway bed and these excavations are covered in
most parts by mature poplar trees and other brush. What I also observed was that this
provincial drain further downstream (heading north-west towards Lake Manitoba) is
plugged with vegetation, trees and brush, leaving this drain in an inoperable condition
which forces more water to the south on top of my already flooded lands. I toured this area
again in October of 2016, in preparation for filing my Amended Statement of Claim and
observed that the Wagon Creek drain is still plugged with vegetation and inoperable north
of my land. My overall observations are as follows: first, that the province has been
negligent in their operation of the Wagon Creek Drain and second, very little excavation
and expense would be needed to run the water from what is erroneously shown as Swamp
Lake on the KGS study maps (plates) to the south end of the Wagon Creek Drain. The
water could be drained and controlled leaving the Shoal Lakes through this route and no
land owners that are not already affected would be subjected to any additional flooding on
their land.

14. I believe the KGS Study Final Report and Draft Report contains much confusing,
inaccurate and manipulated information. For example, the maps provided in Plates 1
through 3 and Plates 7 through 11 from the Affidavit of Douglas Oliver (Plates that deal
with flooded lands and elevations) Exhibit “I”, show no water on my property or to the
area south of my property, an area which has been flooded continually for 17 years.
Exhibit “J” is a picture that I took in 2011 showing the water located where there is
supposed to be none as portrayed in Exhibit I. Exhibit “K” is a map from IBA Canada,
which I believe portrays accurately the water conditions in my area, taken from or around
the exact same time as those in Exhibit I. The water location portrayed there does not
match the water location portrayed in Exhibit I. Plates 4 through 6, Exhibit “l”, ones that I
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believe are there to show land value due to the land type; show water or inorganic land on
my farm. The inorganic land covers an area that I cleared of trees and cultivated through
1994 to 1996. I believe that this has been deliberately portrayed as such in order to devalue
my land for this claim or for purchase through the “voluntary” buyout. Particularly
troubling to me is Plate 11 which shows land suggested as flood prone land and subject for
purchase. Exhibit “M” are of 1st, my land not being included in the draft report and in the
final report, one of the 3 quarter sections of land that I own is now included. The other 2
quarters are also severely affected by the flooding. These 3 quarters constitute the majority
of the land that I own and the majority of my farm. Exhibit “N” are 2 maps from the
Affidavit of Douglas Oliver, and are supposed to show the predictions for the coming flood
in 2011. These maps clearly show me that someone has removed the water on my land and
substituted land topography that simply does not exist on a provincial report warning of
land in danger. Exhibit “O” is a map from a June 2011provincial report from the Affidavit
of Douglas Oliver. This map appears accurate to me regarding the water that was on and
around my land for the 2010/2011 time period. I had tried to investigate the authors of
these maps but have not as yet been successful. My hope is that through the court
discovery process, information regarding this could be learned.

15. Further to the exhibits concerning standing water, from my experience and observation,
just showing the location of the standing water does not portray all of the damaged area.
Land portrayed as not being inundated is also subject to damage and the desirable
vegetation growing on it destroyed simply by cattle and machinery being there. Exhibit
“P” are two photos of cattle on my land walking up to their knees on supposed land not
covered by water.

16. I wish to make one final observation on the validity of the material contained in the 2010
KGS report. Exhibit “Q” is a photo again taken from this report. The photo is in a very
familiar location to me; the photographer took this photo on the road at the north west
corner of my property looking west. If he would have turned around and looked east down
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this same road (shown as the Roy’s/Boundary Drain location on their plates), he would
have observed water flowing over the road from the RM of St. Laurent onto my land. I
believe this is another example of the province having an agenda to find an excuse not to
provide drainage for the area.

17. To take this one step further, I believe this is further proof that the province’s actual
agenda; is to turn the Shoal Lakes Basin, including my land, into a water storage area and
that they are attempting to do this without any formal hearings or consultation with the
affected landowners. They are doing this while ignoring or subjugating the laws of our
country concerning expropriation. The province has passed no legislation or held any
hearings; environmental or otherwise, to allow them to do this. Very little planning has
gone into this; by reading the KGS report, even they say an outlet is necessary for this plan.
The information contained in the KGS report regarding is grossly inadequate and they have
understated by an enormous margin, the land that would be affected according to their
water storage map. I believe that the province, by deliberately storing water from other
areas in this regard, has and is committing an unlawful and illegal act which is continuing
to this day.

18. By my reading of Mr. Geoff Reimer’s affidavit, I’m not sure if he trying to state that the
flooding conditions no longer exist. I offer in Exhibit “R”, a photo that I took in the early
2000’s near the shore of West Shoal Lake of cattle grazing, and in comparison, photos that
I took in early November of 2016 of the exact same area in the flooded state that this has
been in for the past 12 years. Exhibit “S” are photos taken in August 2016 of my damaged,
unusable corrals from the flooding and the undesirable and inedible swamp grasses
growing in and around them, that I took in preparation for my Amended Statement of
Claim.

19. Concerning the “voluntary” buyout, I and my wife, don’t wish to be bought out in this
regard. I built a 2000 square foot log house with my own hands. It’s appraised value in
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2009, was approximately $400,000 and irreplaceable. From my understanding of what little
information that was available, the province was not paying more that $150,000 for any
home. The same soil type of land elsewhere in my municipality as mine but not subject to
flooding has sold in the price range of $1250 per acre. The province, with their suspicious
land valuing, was offering in the range of $150 to $300 per acre. On my 500 plus acre farm
and my house, I’d be taking a loss of $750,000 and no money left, after paying my
mortgage, to purchase another farm, never mind a home. This simply is not an option. As
well, my neighbours, who have engaged in this buyout procedure and are not satisfied with
the offer given them, I believe have left themselves in a seriously compromised position if
they want to fight for a better settlement. I did think, however, seeing as my name was on a
list of landowners affected by the flooding, that the province would eventually contact me
and at least try to offer me some settlement for the damages that I have incurred.

20. As such, along with my reasons given concerning the buyout, I believed that the best
course of action was to wait for a change in the government and the election of the
Conservative Party to form the governing party. My MLA, Mr. Ralph Eichler, is a man
whom I, and my family has known for a long time. As an opposition MLA, Mr. Eichler
was very vocal in regards to fixing the flooding problems in the Shoal Lakes. He spoke
publicly many times about this, and I offer a quote that appeared in the local newspaper on
September 22, 2010:
Tory MLA Ralph Eichler (Lakeside), meanwhile, says it's incumbent on the
provincial government to fashion a long-term solution to what's become a
perennial problem at the Shoal Lakes.
In a letter to the editor in this week's issue, Eichler writes: "Manitoba's
Progressive Conservatives recognize the tremendous difficulties caused by the
rising Shoal Lakes, including the effects on agriculture and transportation, among
others. Leader Hugh McFadyen and I have toured the region and we recognize
the implications for those affected. We are very concerned the NDP government
is not responding swiftly to this crisis."
For its part, the provincial government says it is working in both the short and
long term to address the "very difficult" situation at the Shoal Lakes.
In the short term, Infrastructure and Transportation continues to monitor water
levels through the affected areas on a regular basis. The department has also
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allocated $100,000 to raise the north section of PR 518, according to a

government spokesperson.
As well, Emergency Measures Organization officials have been in contact with
area RMs to determine whether any homes or buildings are threatened. EMO
officials remain available to the RMs if the situation changes or if technical
support is needed.
Manitoba Agriculture Food and Rural Initiatives has also committed to develop
assistance for cattle producers, the details of which are being worked through
with the federal government, as Nevakshonoff noted.
In the long term, a government spokesman notes in an e-mail yesterday that the
KGS Consultants study should be finalized soon; presumably providing a
blueprint for action.
Eichler says it's long past time the study, commissioned in 2007, was completed.
The flooding problems at the Shoal Lakes have been going on since at least
2001, says Eichler. "It's just gotten worse and worse," he said in a telephone
interview yesterday morning. "The government doesn't seem to be paying
attention. It's a Devils Lake in that it has no outlet. It's just taking more and more
pressure. Yet nothing's happening. We have to ask the government how long
they're going to study it before making a decision."
Eichler has not seen the draft KGS study but he hopes it addresses any
concerns about Shoal Lakes water quality and quantity. "If the water quality isn't
acceptable going into Lake Manitoba, for instance, we need to look at all our
alternatives," he said. "It means leadership. It means the government is going to
have to step up to the plate to say this is what we need to do."
The absence of provincial leadership, says Eichler, has increased the frustration
of municipal leaders and residents.
The Shoal Lakes are at their highest level ever, he said.
"We created a problem and now we need to figure out how to fix it," Eichler
concluded

On September 29, 2010, he was quoted as follows:

Eichler took the floor with his stance on the Shoal Lakes, first stating "both those
answers were dead wrong. The Shoal Lake problem is not going to go away,
man made it, man's going to have to make it right."
He went on to explain the water will eventually come south - through the
Grassmere effecting CentrePort, through Sturgeon Creek and additional flooding
in the West St. Paul area. Eichler further explained the lakes' levels are above
what the original levels used to be a paddlewheel boat was on the waterway and
he advocated for the Wagon Creek Drain solution.
"The solution is to not bring it down the Grassmere," said Eichler.
"I think that, that route should be the Wagon Creek Drain."

21. As such, I have believed right until I received the motion to dismiss in December, 2016,
that my best course of action was to wait until Mr. Eichler and his party was elected to
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form the government. This finally happened in April last year and in May, Mr. Eichler was
appointed as a cabinet minister in that government. Instead of fixing the drainage problem,
the new government has instead followed in the same path as the previous one, with the
exception that they now want to dismiss my claim without offering any compensation. I
believed, because of the strange and inaccurate information contained in the KGS report,
that as this was a political decision to flood and leave my area in a flooded state, a political
decision to fix the problem would be easier than trying to force it through the court
process. I see now that I have no alternative but to resume the court action for not only
compensation, but to enforce the promised drain agreement as well as a proper outlet for
this water.

22. To that end, I have hired John Arthur, the former provincial employee who now has his
own consulting firm which specializes in drainage matters. I have asked Mr. Arthur, and he
has agreed, to perform whatever engineering required to advance this claim, including his
advising me on all drainage reports that I receive and as well, to conduct an engineering
survey of my proposed drainage route north from my land to the south end of the existing
Wagon Creek Drain. As well, he will prepare or assist me in my preparation of my reports
for this claim, including whatever is necessary to compel the province to properly maintain
the existing Wagon Creek Drain. I believe that together, this will fix the flooding in this
area, and this can be done for a fraction of the proposed costs suggested by the province.

23. I am convinced that there could be a Charter of Rights challenge that will have to be added
to this claim. As I have studied this issue for the past couple of years, especially the Metis
claim that was the subject of the Supreme Court of Canada challenge and reviewing the
extensive material in preparing this affidavit, as well as reviewing the affidavit of Douglas
Oliver, I am convinced that there is a case to be made in this regard. We are predominantly
Metis that live in this area and this appears as deliberate on the part of the province to
destroy our land at our expense to protect the downstream property of the those non-Metis
landowners.
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24. In December 2016, after receiving the motion to dismiss in the mail, I contacted Ms.
Bjornson by telephone, and offered to file a discontinuance in this claim, but with a right to
refile. When she asked why, I attempted to explain the complexity of the changes from the
original claim, but she interrupted me and was somewhat rude to me during this
conversation. I told her fine, I’ll proceed with this motion but I believe this is the wrong
course of action.

25. I make this affidavit in good faith.

SWORN before me in the City)

of Woodlands, in the Province)
of Manitoba, this 14th day of )
February, 2017. ) X _______________________

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