Mary Coffey

From: Jenny Biem Sent: March-26-12 7:15 AM To: Jessica Robinson Subject: FW: Final Report to DFO - Relationship between Athabasca River and ACFN and MCFN Rights and Traditional Uses Attachments: 10-08-25 Final Report to DFO.pdf

Please make sure this is on the 4731 and 4728 consultation databases with Canada.

From: Nicole Nicholls Sent: Wednesday, August 25, 2010 3:44 PM To: 'Makowecki, Brian' Cc: 'Zellis-Skiba, Margaret'; [email protected]; 'Lisa King';

Subject: Final Report to DFO - Relationship between Athabasca River and ACFN and MCFN Rights and Traditional Uses

Hello Brian,

On behalf of Lisa King and Melody Lepine, please find attached the final report entitled The Relationship between the Lower Athabasca River and the Traditional Uses and Rights of the Athabasca Chipewyan First Nation and the Mikisew Cree First Nation. Please note that this report details the preliminary literature review and community engagement undertaken in the fall of 2009 and does not include the results of more recent traditional use study that ACFN and MCFN have completed in respect to the Lower Athabasca River.

Please let me know if you have any problems opening the document.

Sincerely,

Nicole Nicholls Project Manager Athabasca Chipewyan First Nation Industry Relations Corporation 110B-9816 Hardin Street Fort McMurray, AB T9H 4K3

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Athabasca Chipewyan First Nation Mikisew Cree First Nation Industry Relations Corporation Government and Industry Relations 110B -9816 Hardin Street Suite 208, 9715 Main Street Ft. McMurray, AB T9H 4K3 Fort McMurray, AB T9H 1T5

August 25, 2010

Brian Makowecki Manager Oil Sand Projects Department of Fisheries and Oceans 4253-97 Street Edmonton, AB T6E 5Y7 T: 780-495-4200 [email protected]

Dear Mr. Makowecki:

Re: The Relationship between the Lower Athabasca River and the Traditional Uses and Rights of the Athabasca Chipewyan First Nation and Mikisew Cree First Nation Summary Report

Further to the submission of the draft report in January, 2010, we are pleased to now submit the final report: The Relationship between the Lower Athabasca River and the Traditional Uses and Rights of the Athabasca Chipewyan First Nation and Mikisew Cree First Nation Summary Report. The Athabasca River is of critical importance to the rights, culture and identity of both Athabasca Chipewyan First Nation (ACFN) and Mikisew Cree First Nation (MCFN). ACFN and MCFN have grave concerns about increasing changes in the quality and quantity of water in the Athabasca River, the possibilities that water withdrawals may exacerbate these changes, and the implications of these changes for their rights and culture. As our recent submissions detailing the results of our technical reviews of the Phase 2 Committee recommendations show, significantly more work is required to ensure that ACFN and MCFN Treaty and Aboriginal rights can be sustained under future water withdrawal scenarios. We invite you to meet with us to discuss these concerns further before the drafting of the Phase 2 Water Management Framework.

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Yours Truly,

(original signed) (original signed)

Lisa King Melody Lepine ACFN IRC, Director MCFN GIR Director

cc: Pat Marriot, Alberta Environment Margaret Zellis-Skiba, Transport Canada

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THE RELATIONSHIP BETWEEN THE LOWER ATHABASCA RIVER

AND THE TRADITIONAL USES AND RIGHTS OF THE ATHABASCA CHIPEWYAN FIRST NATION AND MIKISEW CREE FIRST NATION

SUMMARY REPORT

Submitted by:

Athabasca Chipewyan First Nation Industry Relations Corporation 110B 9816‐Hardin Street Ft. McMurray, AB T9H 4K3

Mikisew Cree First Nation Government and Industry Relations 208, 9715 Main Street Ft. McMurray, AB T9H 1T5

Submitted to:

Brian Mackowecki Department of Fisheries and Oceans, Canada

JANUARY 18, 2010. AMENDED: AUGUST 20, 2010. DISCLAIMERS

This report remains the sole property of both the Athabasca Chipewyan First Nation (ACFN) and the Mikisew Cree First Nation (MCFN). Citations, quotations, reproductions, and usage of the information contained herein is permissible only with the explicit written consent of the ACFN and the MCFN.

While the authors endeavored to state factual and relevant information (within the scope of the study), nothing in this report should be construed as a definitive list of ACFN and MCFN concerns, impacts, needs, rights, and uses; nor should it be taken as a limitation on the uses or rights of ACFN and MCFN. ACFN and MCFN reserve the right to alter, amend, revise, or update any portion of this report to reflect their fluid and emerging interests.

i. Executive Summary

In February 2007, Alberta Environment (AENV) and Fisheries and Oceans Canada (DFO) released Phase I of its Water Management Framework (Framework) for the Lower Athabasca River. The Framework was developed in order to manage industrial water withdrawals in pursuit of protecting the “ecological integrity” of the Athabasca River. In spite of the initial work completed for Phase I, AENV, DFO, and First Nations recognized that further research was required, particularly around the broader impacts of water withdrawals on First Nation traditional land use. A list of research priorities were identified for Phase II and assigned to the Phase II Framework Committee (P2FC) of the Cumulative Environmental Management Association (CEMA). Although First Nations were invited to participate in the multi‐stakeholder P2FC process and assist with gathering information on respective First Nation traditional land use data, the Athabasca Chipewyan First Nation (ACFN) and the Mikisew Cree First Nation (MCFN) and other Athabasca Tribal Council (ATC) First Nations sought a separate but parallel process for direct consultation with the Crown. Because water withdrawals from the Athabasca River have the potential to infringe on the Treaty and Aboriginal rights of First Nations, the Crown has a legal and constitutional duty to consult with and accommodate First Nations for the direct, indirect, and cumulative impacts that may result from past, current, and future water withdrawals. Negotiations have been ongoing to establish a suitable consultation process that would include supplementing First Nations with adequate capacity to undertake the necessary work for Phase II. However, to address the immediate gaps in traditional use data DFO awarded contracts to both the ACFN and MCFN to gather information in two key areas:

1. Current traditional land use and activities in and along the Athabasca River

2. Potential impacts of alternative river flows on traditional land use activities

With respect to traditional land use, the research was aimed at identifying community concerns related to the impacts of lower flows on:

. Access to river areas . Safety issues and risks . Ecosystem relationship . Hunting . Fishing . Trapping . Boating . Other traditional activities

Executive Summary i

Management and Solutions in Environmental Science (MSES) Inc. was contracted by ACFN Industry Relations Corporation (IRC) and MCFN Government and Industry Relations (GIR) to conduct the research, which involved a literature review and community engagement sessions. Due to budget constraints, MSES Inc. did not conduct any exploratory research, but used information provided by the ACFN IRC and MCFN GIR. The community engagement sessions were held in Fort McMurray and Fort Chipewyan with groups comprising both MCFN and ACFN members including Elders, Council members, harvesters, outfitters, trappers, and youth. Group discussions were open‐ended as participants were encouraged to describe their experiences of using the Athabasca River and to express their views on environmental changes that have affected their traditional practices over time. In general, the content elicited from the engagement sessions was at a broader level, ideal for issues identification but not for detailed investigations into specific impacts or into community views on alternative flow regimes. Study limitations included the lack of primary data to confirm different study results, restrictions on confidential and licensed reports, shifting traditional land uses, sparse information on traditional food consumption, unknown numbers of River and non‐River users, and difficulty in assessing transboundary impacts. In light of these limitations and the fear of misuse of the report by third parties, the ACFN and MCFN decided not to distribute the MSES Inc. report, opting instead to draft this combined summary report for use by DFO and P2FC.

The Athabasca River and associated tributaries and the Peace‐Athabasca Delta (PAD) are critical waterbodies for First Nations to practice their harvesting rights – hunting, fishing, and gathering. These rights guaranteed under Treaty and enshrined in the Constitution Act of 1982, are important for maintaining Aboriginal culture and the well‐being of local communities. Harvesting rights are at the core for sustaining other Aboriginal rights including the ability to pass on traditional knowledge and values, rights to self‐determination, and rights to individual and community health. Traditional land use values associated with the Athabasca River include:

. Harvesting . Water (drinking and domestic use) . Muskrat . Peace Athabasca Delta . Travel, Access and Shipment of Supplies . Spiritual and Sacred Values ACFN and MCFN members have experienced many changes to these values over time. They have observed the ecological decline of their traditional lands and have expressed concerns about the impact of this decline on their health and their ability to continue their traditional activities as defined by their harvesting rights. While this report describes the importance of the Athabasca River system to the land uses and culture of both First Nations, there are still information gaps about the key ecological and socioeconomic conditions that underlie the

Executive Summary ii

pattern of First Nation land use. As such, one cannot predict how different flow levels could affect use of the Athabasca River and PAD in the long‐term. Nevertheless, it is clear from the available literature and experiential descriptions of ACFN and MCFN members that traditional resources harvested from the regional river system have been in decline and/or more difficult to reach because of lower flows. Fewer resources, in turn, have impacted key activities including big game hunting, waterfowl hunting, fishing, trapping, and gathering.

The Athabasca River and Lake Athabasca were used as the primary sources of drinking water for Fort Chipewyan residents and other traditional land users. Nowadays, however, drinking from the River or Lake is considered a last resort because of the decline in water quality since the 1960s. Concerns have also been expressed about the cost of accessing clean sources of drinking water and the human uptake of contaminants through food washed or grown with water from the Athabasca River. While the Framework focuses on managing the quantity of flows, it is important to examine the effects of changing flows on water quality (i.e. increased concentration at lower flows). A comprehensive study is required to understand why and how the water quality has dropped and to evaluate the impacts on drinking water sources.

Muskrat is very important to the traditional economy and is also considered an indicator of ecological integrity, but population levels have been dropping because lower water levels have reduced good quality habitat and left little shelter from winter temperatures. It is recommended that a study be undertaken to compare muskrat populations in the PAD to those in waterbodies that are not fed by the Athabasca River.

First Nations have relied on the rich ecosystem of the PAD to sustain their traditional livelihood for generations. Changes in flow have been observed over time as the occurrence of spring floods has decreased since construction of the WAC Bennett Dam. Perched basins have slowly disappeared while invasive vegetation are encroaching on wetlands. These changes, in turn, have impacted the abundance and distribution of important plant and animal species that communities are accustomed to harvesting. Other significant ecological changes that have been observed since the Bennett Dam was constructed, and that may be associated with climate change, are noted in this report.

Travel between major towns (i.e. Fort Chipewyan and Fort McMurray) and between these settlements and other reserves, traplines, cabins, and harvesting areas is still achieved via the Athabasca River and associated tributaries. Use of the River system for travel and access depends on conditions that enable safe navigation, access to the River, and access off of the River to desired locations of use. Lower flows can affect navigability in three ways: decreased depth to bottom, increased exposure to sandbars, and confinement to the main channel. Indirect impacts of poor navigability include damaged equipment, safety risks, increased cost of travel (time and expense), restrictions on travel, and limited transport of supplies.

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Water is a sacred life spirit and is deeply tied to the spirituality and identity of First Nations in ways that goes beyond the specific uses of the River and the land. Traditional lands must be considered sacred because it is difficult to locate where there may be a burial. Given that the Athabasca River represents a major travel corridor, there is high possibility for unrecorded burials to be located along the River.

In light of the changes to the Athabasca River and the PAD that have been observed over time, First Nations have continually expressed concerns about the Phase II of the Framework. Despite ongoing consultation with DFO and AENV, First Nations are not convinced that the Framework is stringent enough to address the impacts of alternative flow regimes on the ACFN and MCFN communities. Further research is required to better understand:

. Impacts to the ecology and health of the Athabasca River and PAD . Impacts to travel and access . Impacts to harvesting . Socioeconomic impacts . Cultural and spiritual impacts . Impacts to individual and community health . Cumulative impacts . Evaluating impacts from the perspective of the First Nations . Meaningful consultation Both ACFN and MCFN insist that developing a First Nation “in‐stream flow need” is necessary to fully explore the potential impacts of any alternative flow regime scenario proposed in the Framework and to inform the assessment of predicted impacts. In‐depth community consultation and information would be required to identify the predicted impacts and assess any proposal for mitigation. Currently, First Nations lack the necessary information and capacity to develop this “in‐stream flow need”. For the ACFN and MCFN, development of this threshold would be contingent on a better understanding of specific locations used by each First Nation (e.g. trap lines, reserve lands, cabins, trails, etc.), determining the relationship between different level of flows and use, assessing access conditions for use areas, and compiling lists of species used (plant and animal).

To address these gaps and better inform the DFO and the P2FC process, it is recommended that the following studies or activities be considered as part of the ongoing research:

. Cultural needs assessment . Traditional resource plan . Study on muskrat health and habitat in the PAD

Executive Summary iv

. Water quality . Community based monitoring . Community review and verification

Executive Summary v

ii. Table of Contents

1. INTRODUCTION ...... 1

1.1. CONTEXT: LOWER ATHABASCA PHASE II WATER MANAGEMENT FRAMEWORK ...... 1 1.2. PURPOSE AND OBJECTIVES ...... 3 1.3. LIMITATIONS ...... 4 1.4. RESTRICTIONS ON THE USE OF THE INFORMATION CONTAINED HEREIN ...... 6 2. METHODS ...... 8

2.1. LITERATURE REVIEW ...... 8 2.2. COMMUNITY ENGAGEMENT ...... 9 2.3. INFORMATION SYNTHESIS AND ANALYSIS ...... 10 3. A BRIEF INTRODUCTION TO THE FIRST NATIONS ...... 11

3.1. OVERVIEW ...... 11 3.2. HARVESTING RIGHTS AND THE CULTURE AND WELL‐BEING OF THE FIRST NATIONS ...... 13 4. RESULTS: TRADITIONAL USE VALUES ASSOCIATED WITH THE LOWER ATHABASCA RIVER ...... 15

4.1. HARVESTING ...... 16 4.1.1. Big Game ...... 16 4.1.2. Waterfowl ...... 19 4.1.3. Fish ...... 19 4.1.4. Trapping ...... 21 4.1.5. Gathering ...... 22 4.2. WATER FOR DRINKING AND DOMESTIC USE ...... 23 4.3. MUSKRAT...... 25 4.4. PEACE ATHABASCA DELTA ...... 26 4.5. JACKFISH (RICHARDSON) LAKE ...... 29 4.6. TRAVEL, ACCESS AND SHIPMENT OF SUPPLIES ...... 29 4.6.1. Travel and Access between Ft. Chipewyan and Ft. McMurray ...... 30 4.6.2. Transportation of Goods and Provisions from Ft. McMurray to Ft. Chipewyan ...... 31 4.6.3. Travel and Access to Reserve Lands ...... 31 4.6.4. Travel and Access to Trap lines ...... 31 4.6.5. Travel and Access to Cabins and Camps ...... 32 4.6.6. Travel and Access to Sacred and Spiritual Sites and Areas ...... 32 4.6.7. Travel and Access to Other Rivers and Waterbodies...... 33 4.6.8. Impacts to the Navigability of the River for Watercraft ...... 34 4.6.9. Impacts to Barging and Shipment of Supplies ...... 36 4.7. SPIRITUAL AND SACRED VALUES ASSOCIATED WITH THE RIVER ...... 37 5. DETERMINING IMPACTS OF DECREASED FLOWS ON THE RIGHTS, CULTURE AND WELL­BEING OF THE FIRST NATIONS ...... 38

5.1. INTRODUCTION ...... 38 5.2. CONCERNS OF THE FIRST NATIONS IN RESPECT TO THE PHASE II WATER MANAGEMENT FRAMEWORK...... 38 5.2.1. Impacts to Ecology and Health of the River and the Peace­Athabasca Delta ...... 39 5.2.2. Impacts to travel and Access ...... 39 5.2.3. Impacts to Harvesting ...... 40 5.2.4. Socioeconomic impacts ...... 40

Table of Contents ii

5.2.5. Cultural and Spiritual Impacts ...... 41 5.2.6. Impacts to Individual and Community Health ...... 41 5.2.7. Cumulative Impacts...... 42 5.2.8. Evaluating Impacts from the Perspective of the First Nations ...... 43 5.2.9. Meaningful Consultation ...... 43 5.3. EVALUATING IMPACTS: FIRST NATIONS IN‐STREAM FLOW NEED ...... 43 5.4. INFORMATION GAP OVERVIEW ...... 45 5.5. POSSIBLE STUDIES ...... 45 5.5.1. Cultural Needs Assessment ...... 45 5.5.2. Traditional Resource Plan ...... 46 5.5.3. Further Study on Muskrat Health and Habitat in the PAD ...... 47 5.5.4. Water Quality ...... 47 5.5.5. Community Based Monitoring ...... 47 5.6. COMMUNITY REVIEW AND VERIFICATION ...... 48 6. REFERENCES ...... 49

Table of Contents iii

1. INTRODUCTION

1.1. CONTEXT: LOWER ATHABASCA PHASE II WATER MANAGEMENT FRAMEWORK Athabasca Chipewyan First Nation (ACFN) and the Mikisew Crew First Nation (MCFN) (together, the “First Nations”) have constitutionally protected Treaty and Aboriginal rights within the Lower Athabasca Region in northeast Alberta and they wish to sustain the meaningful ability for their members to practice these rights today and into the future (ACFN IRC et al. 2009). The First Nations assert that oil sands extraction in the Lower Athabasca region is putting ecosystems, the watersheds that sustain them, and the First Nations who depend upon them, at risk for large‐scale impacts that will permanently alter the biophysical and sociocultural landscape of the region.

It is the view of the First Nations that the current and future exercise of their rights depends to a great extent on the existence of adequate flows and adequate water quantity and quality of the Athabasca River, which they consider the lifeblood of their Traditional Lands. It is a source of traditionally used resources, a means of accessing other resource harvesting locations, and an important transportation corridor. It is one of the main arteries that feed the unique and complex hydrology of the Peace‐Athabasca Delta (PAD), the largest boreal delta in the world and a wetland of international significance under the RAMSAR Convention. The people of ACFN and MCFN have depended upon the PAD for generations to sustain their traditional livelihoods and their well‐being. The Athabasca River is the source of drinking water for the community of Ft. Chipewyan (the location of residence for many ACFN and MCFN members). The River is very important to the traditional lifeways of the First Nations and, for at least the past twenty years, they have observed changes in the ecology of the River and the PAD and have experienced impacts to their land and resource use as a result of those changes (AENV 1988, 2006; ACFN 2003; Appendices A and B; FMA 2006, 2007; ICC 1998; Calliou Group 2009). Given the importance of being sensitive to the Aboriginal perspective of their rights (R.v. Sparrow, [1990] 1 S.C.R. 1075), when taking into account socio‐economic, cultural and other impacts of development on the Athabasca River, it is crucial to take into account the Aboriginal perspective of their rights and impacts thereon, in addition to western science.

Extracting bitumen from oil sands “is a water‐based extraction process and the main source of water is the Lower Athabasca River. Water withdrawals from the Lower Athabasca River and their potential impacts on the aquatic ecosystems have been an issue of concern and debate for several years” (Ohlsen 2008). Companies that carry out industrial activities in the Lower Athabasca region have extracted and seek to extract additional water from the Athabasca River and affect water levels in the Athabasca River through the mining of tributaries and other disturbances to the watershed. First Nations have observed adverse impacts as a result of existing water withdrawals and predict further impacts as water withdrawals increase (FMA

Section 1 Introduction 1

2006, 2007; Appendix B and C; ACFN in prep; Calliou Group 2009; Canada 2009a and 2009b; MCFN 2006).

A planning process is underway to develop a Phase II recommendation for managing water withdrawals from the Lower Athabasca River. The recommendation will prescribe when, and how much, water can be withdrawn from the Lower Athabasca River for cumulative oil sands water use (Ohlsen, 2008). The recommendation will be informed by the results of the multiple criteria analysis of alternative water management frameworks for the Lower Athabasca River that is being undertaken by the multi‐stakeholder Phase II Framework Committee (P2FC). The P2FC requires information that will help them understand the social and economic implications of alternative frameworks.

Water withdrawals from the Athabasca River have the potential to adversely affect and infringe the Treaty and Aboriginal Rights of the First Nations for a variety of reasons. For example, the River is an important travel route for many ACFN and MCFN members, which they use to access their preferred harvesting areas. Decreased flows negatively affect the navigability of the River thereby impacting travel, access, and ultimately harvesting. Lower flows in the Athabasca River could impact the habitat, health, and presence and abundance of certain species that are harvested for food and other traditional uses by the First Nations, thereby impacting their ability to do so. These are only two examples of a multitude of possible impacts from reductions in water flows. In addition to the impacts on water flows, the physical activities associated with withdrawing water may have impacts. For example, sediment barriers placed in the river during construction of water intake facilities may impede the navigability of the River while the placement of the water intake facilities along the River negatively affects aesthetic and spiritual values associated with the River. In addition to direct impacts, such as those provided above, there is a complex variety of indirect and cumulative impacts that incur as a result of the impacts of increasing industrialization throughout the First Nations traditional lands (and watershed). The permitting of water withdrawals facilitates the industrialization of the region, indirectly inducing many more impacts than those related to water flows or water withdrawals in the River. For example, tributaries of the River may be mined and diverted – thereby impeding the First Nations ability to conduct their traditional activities along those tributaries and changing the very character and qualities of that tributary (which are of importance to the value of those tributaries to the First Nations) forevermore. Federal No Net Loss policies for fish habitat allow the destruction of natural waterbodies in return for the creation of unnatural compensation lakes that hold little replacement value for First Nations traditional uses and result in the taking up of additional lands and further alteration of landscape character and watershed dynamics. Many more examples could be provided, but the point is that there are many ways in which First Nations rights stand to be impacted not only from water withdrawals, but also, possibly from the implementation of a water management framework which may, or may not, properly account for those rights.

Section 1 Introduction 2

Because withdrawals of water from the Athabasca River have the potential to adversely affect and infringe the Treaty and Aboriginal rights of the First Nations, there is a legal and constitutional duty to consult with the First Nations and to accommodate their rights and interests concerning the direct, indirect and cumulative impacts of industrial activities on their rights and interests, including the impacts of past, current and future water withdrawals from the Athabasca River, and its watershed (ACFN IRC et al. 2009). Like the P2FC process, the consultation process also requires information that will help to determine what impacts, if any, may incur as a result of water withdrawals under the eventual Phase II management framework (MCFN 2009; ACFN in prep.).

While the P2FC provided opportunity for First Nations to participate in the multi‐stakeholder process, the Athabasca Chipewyan First Nation (ACFN) and the Mikisew Cree First Nation (MCFN), along with the other First Nations belonging to the Athabasca Tribal Council (ATC) to seek a separate and parallel process of direct Crown‐First Nation consultations on the Phase II planning process. The Government of Alberta (Alberta Environment) and the Government of Canada (Department of Fisheries and Oceans) have been meeting with representatives of the five ATC First Nations to discuss how consultation should occur in respect to the Phase II recommendation. The First Nations have been requesting capacity to gather information that could help to inform an assessment of the effects of alternate water flow scenarios on their rights and traditional uses. At the same time, Alberta and Canada have been asking First Nations to provide specific information on potential issues of concern related to water flows, in order that such information could be used to inform the P2FC process.

1.2. PURPOSE AND OBJECTIVES In response to these needs, DFO contracted the ACFN IRC and the MCFN GIR to gather information to determine ACFN and MCFN causes for concern related to potential impacts by decreased flows on:

 Access to the river areas

 Safety issues/risks

 Ungulate, fish and vegetation relationship

 Hunting

 Fishing

 Boating

Section 1 Introduction 3

 Trapping

 Other traditional activities (e.g., plant gathering)

DFO wishes to use this information to inform the P2FC process.

The specific objectives of the DFO contract are to provide:

 detailed information on the current traditional land use and traditional activities of the First Nations on and along the river; and,

 detailed information on how alternative flows might impact the traditional land use activities of the First Nations.

In the view of the First Nations, the objectives of the study are to provide detailed information on how alternative flows might impact:

 their land and resource use;

 their individual and community well‐being; and,

 ultimately, their treaty and Aboriginal rights.

1.3. LIMITATIONS While the study was a valuable scoping exercise for identifying the specific issues of concern of the First Nations regarding changing water flows in the Athabasca River, it was constrained in respect of being able to evaluate the impacts of alternative flow regimes on the traditional uses, rights and well‐being of the First Nations.

Limitations are as follows:

 Traditional knowledge is context specific. Because many of the reports and studies reviewed for the desktop study had varying objectives and there was no access to the primary data (or the primary data are not in a format that is easily reviewed), there was a risk of decontexualizing information.

 There are restrictions on the use of the information in some of the documents reviewed (e.g, ACFN ED 2008) because of confidentiality and use stipulations. Use of any specific information (such as quotations or specific locational information or detailed traditional knowledge) from reports (or the interviews that were conducted for the study) of this type would require the informed consent of the participant(s).

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 A new system of traditional land and resource use is emerging as the First Nations’ members’ livelihoods and places of residence are shifting, and as traditional lands are taken up and/or contaminated. This new system of land use has not yet been recorded or described to any great extent, especially in respect to the role of the Athabasca River. Detailed interviews with current harvesters would be required to provide specific information on localities of use, resources harvested, preferences, and conditions supporting use, in order to inform an assessment of possible impacts under alternative water flows.

 There is a lack of detailed information on the type, quantity and quality of traditional foods consumed within each community (ACFN and MCFN) including a break‐down of the type, quantity and quality of traditional foods obtained directly from the River, as well as the type, quantity and quality of traditional foods the harvesting of which depends on access via the River.

 There is a lack of detailed information on the numbers of River users, and the number of non‐River users whose consumption of traditional foods, or access to traditional resources, relies on the River users.

 The land and resource use of any particular First Nation is also interconnected with the land and resource use of other First Nations and Métis peoples, due to resource trading, pooling and sharing amongst kin and friends. Members of the same family may be members of different First Nations. ACFN members may use MCFN member traplines (and vice versa) and MCFN members may use ACFN reserves (and vice versa). This makes it difficult to evaluate or assess impacts simply on the basis of assigning use to a particular First Nation. This issue is generally not accounted for in studies and should be taken into account in any further assessments.

 While community engagement sessions highlighted issues of concern, there was little chance to gather details on localities of use (for example, specific cabins accessed via the River; specific harvesting locations) or to investigate possible impacts of alternative flow regimes (which would require more accurate data).

 Community engagement was limited as a result of availability of community participants and the list of issues from the community engagement sessions cannot be considered a comprehensive summary of the issues of concern of the First Nations. In general, it is difficult to achieve comprehensive community engagement if only using a single or discrete type of method (e.g., workshops). Availability of community members varies according to work schedules, whether they are out on the land, whether they are comfortable with sharing knowledge, etc. and is difficult to predict or accommodated, especially with limited engagement budgets.

Section 1 Introduction 5

 There is a lack of research on determining thresholds (or acceptable limits of change) for First Nations’ use of the Athabasca River. Participants from both First Nations noted that this threshold has already been breached; however, people continue to use the river (although this use is declining). More research is required to determine what this threshold might be.

 The scope of this study is limited to the possible impacts of reduced water flows and does not examine the impacts of activities associated with water withdrawals, for example the construction and operation of intake facilities. This, however, is important, and should be considered in the Phase 2 Water Management Framework.

 Lack of resources to evaluate possible effects of alternate flow regimes on the ecology of the PAD, and in return, on the traditional uses, rights and well‐being of the First Nation.

 Lack of resources to evaluate the cumulative effects of alternate flow regimes, water extraction from tributaries, the mining out of tributaries of the River, and the creation of compensation and end pit lakes (i.e. alteration of the watershed), on the Rights, traditional uses and well‐being of the First Nations.

 It is evident that further research is required to provide the kind of detailed information that would inform evaluating and assessing impacts of alternative flow scenarios on the First Nations’ rights, traditional uses and well‐being. This further research should be based on answering the questions and information requirements that are appended to this report (Appendix E). Specific studies (e.g., traditional foods study; cultural needs assessment; preferences assessment; land use studies; etc.) that involve interviews, surveys and other social science and interdisciplinary methods would be required to answer some of the information requirements.

1.4. RESTRICTIONS ON THE USE OF THE INFORMATION CONTAINED HEREIN The First Nations have had negative experiences with the decontexualization, misinterpretation and misuse of their information in other forums. This even occurs where intentions may be considered good. In addition, the participants of the community engagement sessions that were held to collect information for this study expressed that their information cannot be used unless a verification meeting is held with all participants. In light of this, as well as the information gaps and the need for additional research, the First Nations are concerned about the provision of this report to third parties, for example P2FC, by DFO (or provision to other third parties by other regulators to whom the First Nations may chose to submit this report). Normally, a TK Sharing Agreement is required by ACFN and by MCFN to govern the collection, use and provision to third parties, of information such as that reviewed and documented for this study. We did not include the TK Sharing agreement in the contract specifications

Section 1 Introduction 6

(although the need for the agreement was raised by MCFN GIR and ACFN IRC staff in meetings with DFO on this contract). Given the lack of the TK Sharing Agreement, and the concerns about the use of the information in this report, the First Nations would like to work collaboratively with DFO to determine how best to bring the information from this report forward into the P2FC process.

Section 1 Introduction 7

2. METHODS Information was collected via literature review and community engagement sessions. The First Nations contracted MSES Inc. to perform the information collection and compilation.

2.1. LITERATURE REVIEW MSES conducted a review of known and accessible documents relevant to understanding the uses of the First Nations in respect to the Athabasca River, and possible impacts to those uses. The information reviewed includes project‐specific environmental assessments, traditional land use and cultural or historical studies, and other reports and analyses of pertinence. A separate desktop study was completed for each First Nation and the documents reviewed for each are summarized in Table 1. As the project budget precluded them from conducting additional research, MSES relied on the ACFN IRC and the MCFN GIR to provide information to them. It is important to note that some of the documents that were reviewed for an individual First Nation may be equally applicable to both (e.g., Alberta Executive Council 1970; Coutu and Hoffman‐Mercredi 2002; Freemount 1978; Fumoleau 2004; McCormack and Ironside 1993). Summaries of the ACFN‐specific and MCFN‐specific results of the desktop study completed by MSES are appended (Appendices A and B, respectively). In addition to the information reviewed by MSES, the authors of this summary report incorporated information from some additional documents that were excluded from the MSES review due to time constraints and/or the availability of the document (AENV 1988; AENV 2006; ACFN in prep; ACFN 2009). Table 1 Documents Reviewed by MSES

Traditional Land Use Reports Specific Project‐specific Study First Nation Study and Land Use to the River Other or Submission Planning and/or the PAD ACFN 2003a FMA Heritage Alberta Executive CEMA 2004, 2005; Resources Council 1970; ICC Woodward & ACFN Consultants Inc. 2006 1999; Stuart Company Barristers Adams & and Solicitors Law Associates 1998 Corporation

Mikisew Council and Calliou Group n.d.; Freemount 1978 CEMA 2004, 2005; the Traditional Land Canadian Natural Fumoleau 2004; Use Committee n.d.; Resources Limited McCormack and MCFN PACTeam Canada Inc. 2003; FMA Heritage Ironside 1993 2007 Resources Consultants Inc. 2007; Mikisew Cree

Section 2 Methods 8

First Nation 2006

2.2. COMMUNITY ENGAGEMENT In the interest of the contract budget, the ACFN IRC and MCFN GIR agreed to schedule the community engagement sessions for each First Nation (ACFN and MCFN) to be held concurrently. To support ease of participant involvement in the sessions, one session was held in Ft. McMurray (Wednesday, September 30, 2009) and one session was held in Ft. Chipewyan (Thursday, October 1, 2009).

While the IRC and GIR organized the sessions, MSES facilitated the sessions. The ACFN IRC (staff member Nicole Nicholls and consultant Ave Dersch) provided additional facilitation support at the Ft. McMurray session and documentation support at both sessions. MCFN GIR staff member Matthew Whitehead and Sherwin Shih helped to facilitate at the sessions.

Ten participants attended the Ft. McMurray session, and over 20 were present in the Fort Chipewyan session. Participants included Elders, Council members, current harvesters, outfitters, trappers, and youth. All participants were invited to attend because they are known to have experiential knowledge about the River, its uses, and how it has changed. The names of participants are being held in confidence by the ACFN IRC and MCFN GIR.

MSES prepared two sets of large scale satellite images for each of the river segments so that the difference in the River at high and low water flows could be visually depicted for participants. One set of images was from November 2001, showing one of the lowest flows on record, while another set was from July 2008 showing a higher flow. MSES also prepared and brought to the sessions an analysis of the cumulative disturbances between 1992 and 2008, along with a graph showing the declining trend in minimum flow at the north end of Segment 4 (Appendix D). During the engagement sessions the facilitators found that discussion on comparisons of low and high water flows, or discussion about specific locations of use on the river would not be appropriate for the discussion that participants were in engaging in. The sessions were more preliminary in nature, highlighting key issues that would be better explored through formal interviews.

In order to encourage discussion and reduce the possibility for bias in shaping issues, discussion was open‐ended and participants were encouraged to lead the discussion about their uses of the river and their views on changes to the river and effects to their use. MSES did prepare specific questions about specific uses of the River in terms of fishing, hunting and harvesting of traditional plants, in order to guide more specific discussions where appropriate.

Section 2 Methods 9

Overall, the community engagement session discussions were at a level of issues identification, rather than offering a means for detailed investigations of possible impacts or engagement on community views of alternative flow regimes. A summary of the results of the Community Engagement sessions is appended (Appendix C). The information from these sessions is not distinguished according to First Nation (MCFN and ACFN) because participants of both sessions expressed that they wished to speak with a united voice, as they felt that these issues of concern are common to both First Nations, both of whose traditional livelihood and culture is closely linked to the River and the Delta. In addition, the participants stated that their information cannot be used unless a verification meeting is held with all participants.

2.3. INFORMATION SYNTHESIS AND ANALYSIS While the DFO contract specified that a literature review and community engagement sessions were to be conducted and reported on individually, the ACFN IRC and the MCFN GIR recognized a need to synthesize the information arising from each collection method in order to develop a more comprehensive view of the relationship between the River and the rights and traditional uses of the First Nations, as well as possible impacts to those rights and uses that may be incurred as a result of flow alteration.

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3. A BRIEF INTRODUCTION TO THE FIRST NATIONS

3.1. OVERVIEW This brief overview of the lands, culture and history of the First Nations is meant only as a preliminary introduction to the First Nations. It touches briefly on the Treaty and cultural context, the reserve lands and populations of each First Nation, and a general history. An appreciation and true understanding of the Dene and Cree cultures, including their worldviews and value systems (which both enforce and are in turn enforced by their traditional land use practices and knowledge, and are ultimately at the heart of their issues of concern in respect to environmental change and degradation) can only be cultivated through on‐going, respectful relationships and dialogue. The First Nations invite opportunities for DFO to engage with their members in pursuit of developing such understanding. Both ACFN and MCFN are Aboriginal groups within the meaning of section 35 of the Constitution Act, 1982 and are signatories to Treaty 8. Of ACFN’s registered population of approximately 879 members approximately one third live in Ft. Chipewyan, one third live in Ft. McMurray and Ft. McKay, with other population concentrations in Ft. Smith (Northwest Territories) and Edmonton. MCFN has a registered population of 2,542 members, of which 1,767 reside off reserve in Fort Chipewyan, Fort McMurray, Edmonton and Ft.Smith (NWT). (Calliou Group 2009). The Traditional Lands of the First Nations, from which they sustain themselves and their culture, encompass Lake Athabasca, the Peace‐Athabasca Delta and much of the Lower Athabasca River drainage basin. Use of the Athabasca River, Lake Athabasca and the PAD, is integral to the traditional livelihood of the First Nations. The location of the eight reserves set aside for ACFN use and benefit pursuant to the Indian Act, reflect the importance of these waterbodies to ACFN. The Point Brule and Poplar Point reserves, respectively I.R. 201F and I.R. 201G, are located in Segment 3 of the Lower Athabasca River; the Delta reserves (I.R. 201 and I.R. 201B) are located in Segments 1 and 2; the Jackfish reserves (I.R. 201C, I.R. 201D, and I.R. 201E) also are within Segments 1 and 2. The Old Fort Point reserve (I.R. 201A) is located on the south shore of Lake Athabasca. ACFN has made it clear to Government and Industry that the area that is known as “Richardson Backcountry” – an area that encompasses the Reserve Lands and the eastern tributaries of the Athabasca River – is the heartland of their traditional lands that requires special protection and management in order to sustain their Treaty and Aboriginal Rights now and into the future (ACFN 2008). ACFN is an Athapaskan‐speaking people known historically as the K'ai Taile Dene, meaning "people of the land of the willow," a reference to the Peace Athabasca Delta (PAD). The K’ai Taile Dene are descendents of the Dene peoples who occupied the vast lands of what is now known as Northern Canada, and who moved in accordance with the natural migration of the

Section 3 A Brief Introduction to the First Nations 11

barrenland caribou herds across these lands. Lifeways began to change as the livelihood based on nomadic caribou hunting shifted towards a focus on trapping for the fur trade economy. MCFN includes peoples of both Cree and Dene ancestry. The Cree culture, like the Dene, is widespread across northern Canada, extending from the Hudson Bay west to northern and central Alberta. The original MCFN (then known as “Cree Band”) signatories to Treaty 8 were Cree. Then, in 1944, shortly after the Wood Buffalo National Park (WBNP) was created, some of the ACFN (then known as “Chipewyan Band”) members residing in the WBNP joined the Cree Band so that they could retain their use and occupancy rights to the area. The people of ACFN and MCFN have experienced many changes to their lifeways over the years. These changes have emerged, in most part, from the different socio‐political institutions introduced and enforced by the Federal government throughout the colonial and post‐colonial history and from taking part in different economic opportunities. The traditional lifeways of both ACFN and MCFN involved nomadic livelihoods based on a seasonal harvesting cycle exercised across vast extents of lands and for many years their traditional economies of both First Nations were tied to the fur trade. Over time, the people of ACFN and MCFN became increasingly centralized around “micro‐villages”, or small semi‐permanent settlements (for example, the ACFN reserves reflect the location of these micro‐villages). Then, in the 1960s, the primary location of residence shifted to Ft. Chipewyan in response to Government and Church policies around education and social welfare. There were many social impacts associated with the shift to town life and the education of children in residential school, and the communities of ACFN and MCFN are still healing. In addition to social changes, since the advent of industrial development in the region, especially the W.A.C. Bennett Dam, ACFN and MCFN members have observed ecological changes and degradation and they are voicing concerns about the possible impacts of these changes to their ability to practice their rights, and to their individual health and community well‐being. Today, a new system of land use is emerging as people’s livelihoods and places of residence are shifting yet again. While the traditional livelihood has always been based on a seasonal harvesting cycle, the particular resources that sustain the livelihood and the particular technologies used to harvest the resources have been fluid over time. The new system of land use that is beginning to take shape has not yet been recorded or described to any great extent, but it can be considered an emergent expression of both the adaptive capacity of the First Nations cultures and of the practice of the Rights which were guaranteed by Treaty 8. In the face of change, the First Nations value and celebrate their respective cultures, continue to practice their traditions, and wish to pass these on to their future generations. Central to this value system is a worldview that recognizes the interdependent nature of all aspects and beings of creation in a sacred circle of life, and a sense of place and identity that derives from a relationship to the land (FMA 2006a, 2007; Coutu and Hoffman‐Mercredi 1999). “Although the history of the land use of the ACFN people include many changes, the core of their identify and

Section 3 A Brief Introduction to the First Nations 12

culture comes from their relationship with the land” (ACFN 2003a). The practice of the harvesting rights guaranteed under Treaty 8 is central to sustaining their cultures. And, as the next section discusses, the ecology of the Athabasca River, the Peace‐Athabasca Delta and Lake Athabasca are linked to ACFN’s ability to practice these rights in their preferred fashion into the future.

3.2. HARVESTING RIGHTS AND THE CULTURE AND WELL­BEING OF THE FIRST NATIONS The River, its tributaries and the PAD are important for hunting, fishing and gathering. These harvesting rights were guaranteed under Treaty 8 and are enshrined in the Constitution Act of Canada. They are integral to maintaining the culture of the First Nations and the well‐being of their individuals and communities. The practice of the harvesting rights guaranteed under Treaty 8 is at the heart of sustaining other Aboriginal rights, such as: the ability to practice and transmit traditional knowledge, values and culture; rights to self‐determination; and rights to individual and community health. The point here is not to define all of the ways in which traditional resources, their uses and the conditions that support their use are related to rights – that would be out of the scope of this study. Instead, the purpose is to remind the reader that the specific harvesting rights are linked in complex and multi‐faceted ways to culture and well‐ being. Some examples of these relationships are explained briefly in the following paragraphs.

Traditional foods, handicrafts and spirituality have a role in sustaining cultural identity in the face of change. For example, activities around harvesting the resource (hunting, trapping, gathering), processing the materials, and creating the end products provide opportunities to reinforce cultural values and norms, and provide a learning forum for imparting traditional knowledge and values to younger members. Animals and plants play a role in traditional spiritual practice (e.g., ACFN ED 2008:18).

The traditional economy of ACFN and MCFN helps to counter the high price of store‐bought foods in the community of Ft. Chipewyan and contributes to food security (Canada 1998). In addition, value‐added products such as dry‐meat and traditional medicines may be traded or bartered for other goods or services in the traditional economy. Handicrafts may also be sold outright and provide a source of income, especially for women. Trade and gifting plays a role in reinforcing cultural ties and networks. These networks of exchange and reciprocity are essential to culture and community resilience: they reinforce cultural identity, offer channels for exchanging cultural knowledge, and provide some security and assurance to individuals who make use of these ties in times of hardship.

Traditional foods are well known to be nutritionally superior to their storebought counterparts (MRHS & Dene Nation 1995; Wein 1991). The harvest of traditional foods encourages culturally appropriate exercise; activity and exercise are important to individual health.

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Cultural keystone species are “culturally salient species that shape in a major way the cultural identity of a people, as reflected in the fundamental roles these species have in diet, materials, medicine, and/or spiritual practices” (Garibaldi and Turner 2004). While this concept likely has more of a heuristic, rather than definitive value, moose, muskrat, rat root, and certain fish species all of which are harvested along or from the River and the PAD, might be considered cultural keystone species for both ACFN and MCFN because of the role the harvest, use and distribution of such resources plays in sustaining the traditional values, spirituality, culture and economy of both First Nations (e.g., ACFN ED 2008:18). This is not to say that other species are not highly significant. From the perspective of the First Nations, all of the creatures and plants of the lands and waters have a significant role in the complex web of life, and are therefore important for sustaining the rights and culture of the First Nation. The concept of specifying or ranking the significance of certain species goes against the worldview of the First Nations. The cultural keystone species concept only implies the network of relationships amongst specific sociocultural components (e.g., diet, ritual, etc.) is more strongly coupled, and impacts would perhaps be more direct.

There are many more examples that could be examined (see for example, Turner et al. 2008; Passelac‐Ross 2005), but it beyond the scope of this study to attempt to do so. Further studies are required to elucidate the network of relationships among traditional resources, harvesting activities, traditional social institutions (e.g., networks of exchange and reciprocity), and the various constituents of well‐being (including cultural identity) for each First Nation. Cultural needs assessments of this type would help to develop traditional resource use and management plans, which would include developing thresholds for key species and ecological conditions (e.g., water flows in the Athabasca River) that are integral to sustaining the culture.

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4. RESULTS: TRADITIONAL USE VALUES ASSOCIATED WITH THE LOWER ATHABASCA RIVER This section presents known information about traditional use values associated with the River. These values are categorized as follows:

 Harvesting

 Muskrat

 Water (Drinking and Domestic Use)

 Peace Athabasca Delta

 Travel, Access and Shipment of Supplies

 Spiritual and Sacred Values

While ACFN and MCFN use the river itself for obtaining resources and for access and travel to other resource gathering areas, the practice of these harvesting rights is linked to sustaining other Aboriginal rights such as the ability to practice and transmit traditional knowledge, values and culture. The River itself is the subject of stories and is considered sacred. It is also important to keep in mind that the River is integrally linked to the unique and complex hydrology of the PAD, the rich ecology of which sustains the traditional uses and rights of both First Nations. Thus, understanding impacts to ACFN and MCFN rights goes beyond looking at the specific uses of the River. Where possible, impacts that have been experienced by ACFN and MCFN in regards to the above values, including concerns expressed about how changing River conditions have or may impact those values, are identified.

While this section may seem detailed in the identification of the relationship between the River and the land and resource uses and culture of the First Nations, it should be recognized that the information presented here is still at a relatively high level. Overall, there is a lack of detailed information on the key ecological, sociocultural, and economic conditions that underlie the system of river use and thus, it is difficult to make predictions or draw conclusions about what level of change would affect use or not. What we do know, is that members of both First Nations say that their use of the river has already been impacted and that this impact derives, in most part, from lower water flows.

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4.1. HARVESTING Traditional resources that are harvested from the River, from the PAD and from the tributaries (which are accessed via the river) include, but are not necessarily limited to, traditional foods, traditional medicines and raw materials for other uses, e.g., construction, heating fuel, etc. (ACFN 2003; Dersch and Bush 2008). For example, some traditional foods that ACFN and MCFN obtain from the waters of, or along the shores of, River and the PAD are moose, muskrat and fish. In addition to foods, a variety of traditional medicines are also found in the River, in the PAD and in marshy drainage outlets into the River. For example, medicines such as rat root, Labrador tea, and wild mint are widely and commonly used (Dersch and Bush 2008). Finally, animals, plants and natural materials may be used for a variety of artistic, domestic and spiritual purposes. For example, furs from aquatic furbearers provide trimmings for moccasins and mittens; eagle feathers are important for ceremonies, as are some medicinal plants. Please note that the aforementioned materials, animals or plants are not meant to imply a limitation of use to only those species mentioned. Furthermore, while this report, for pragmatic purposes, includes information on use in respect to several of the kinds of resources, plants and animals harvested, it should not be taken as meaning that ACFN and MCFN uses or rights are limited to those aspects described in this document. The First Nations utilized all of the plants and animals that are found in their traditional lands and consider all of the plant and animals species to be important for sustaining their rights and culture. It is outside the scope of this study, however, to provide an exhaustive list of plants and animals species utilized, the specific uses, and the specific conditions pertinent to their use (e.g., seasonality considerations, etc.) – that is the kind of information that could be collected for a traditional resource use plan. The following provides an overview of the kinds of resource procurement activities that occur along the River: big game hunting (Section 4.1.1.) waterfowl hunting (Section 4.1.2.); fishing (Section 4.1.3.); trapping (Section 4.1.4); and, gathering (Section 4.1.5.). It is possible that not all activities have been captured – it is important that review of the report results be undertaken with ACFN and MCFN harvesters and Elders to verify the results. The following overview should not be taken as a definitive list.

4.1.1. Big Game Moose Moose is highly valued by both First Nations, providing sustenance and a source of raw materials for traditional handicrafts and clothing. The River, the tributaries of the River, and the PAD are important moose hunting areas (ACFN 2003, 2009; ACFN ED 2008; Appendices A and B). Riparian areas along the River provide good browse. The islands in

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the river are especially good habitat because the willows that dominate the islands are very good forage and the islands provide refuge from predators and from human activity. Moose often enter water bodies in the summer to escape insects. Elders and hunters say that movement of moose between the Birch Mountains and the River occurs. The side‐rivers off of the Athabasca River are important for moose hunting because they are less heavily trafficked than the main river. MCFN and ACFN hunters have developed specialized skills in hunting from canoes or boats along rivers and lakes (Appendices A and B). At any time that people travel up and down the River they are on the lookout for moose. In the fall time, hunters will drift their boats downriver, calling moose as they go. The PAD is very important for moose hunting, especially in the area of the Delta and Jackfish reserves (ACFN 2009). While this area is very productive for moose, it is also in close proximity to the community of Ft. Chipewyan, as well as the cabins and traditional camps of many members. In addition to the PAD, hunters preferentially utilize waterways such as the Athabasca River, the Firebag, the Richardson Rivers, the Ells River, and the McKay River, for moose hunting (ACFN 2003, 2009; Calliou Group 2009). The fall moose hunt is very important and people will take time off of work specifically for this purpose (ACFN 2009). Impacts to Moose Harvesting Harvesters have reported that their ability to harvest moose along the River (or to use the River to access the tributaries) already has been impacted by lower water flows and by declining moose populations (ACFN 2003, 2009; ACFN ED 2008; Appendices A and B). For example, while a moose may be present on the bank or on an island, a hunter may not harvest the moose because it may not be possible to land their boat in proximity to the moose kill, or because it may not be possible to get their boat back on step with a heavy load of meat when the water is low (ACFN 2009). It should be noted that there are a myriad of preferences that underlie hunter decision‐making (e.g., how far one is willing to pack meat from a kill site to a boat; how far one is willing to travel to hunt moose). While understanding these preferences is necessary in order to fully evaluate impacts, research on these preferences in the context of ACFN and MCFN has not been undertaken. The River hunting corridor provides a good example of why the First Nations would be concerned about the use and misinterpretation of their traditional use information. The geographic information system database derived from mapping interviews conducted for the ACFN Traditional Land Use and Occupancy Study (2003), for example, depicts discrete data points for hunting locations. This is likely because adhesive icons (which lend themselves to “point” interpretation, rather than polygynal interpretation) were used during the mapping interviews. Interpreting hunting as corresponding only to discrete locations is a gross misrepresentation of the relationship between the land, the

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systems of hunting, and animal behavior (e.g., moose are not stationary). Therefore, it would be a gross error to attempt to evaluate possible impacts to moose hunting by attempting to measure the likelihood of effects to a specific location. Rather, it is important to maintain opportunities to harvest all along the River (including the islands), along its tributaries, and within the PAD Bison Bison are another big game species that is harvested by ACFN and MCFN members and that has been a part of their traditional economy and diet for generations (ACFN 2003, 2009; ACFN IRC 2009; Weatherell and Kmet 2000; Wein et al. 1991). Despite the historical and current importance of bison to MCFN and ACFN, information about bison and bison hunting is rarely documented in impact assessment studies (e.g., FMA 2005), perhaps as result of researcher bias. Recent studies (ACFN 2009), however, show that bison continues to be harvested. We suggest that there are three main areas of harvest that relate to the River: the PAD in the WBNP; the PAD outside of WBNP; and the McIvor‐Ronald Lake area to the south of WBNP. The River and the waterways of the PAD are essential for accessing these harvesting areas. Impacts to Bison Harvesting MCFN and ACFN harvesters have expressed concern about unregulated hunting by non‐ Aboriginal sports hunters (e.g., ACFN IRC 2009). In addition, proposed and approved oil sands mines (e.g., UTS/Teck Frontier and Equinox Projects, Shell Pierre River Project, CNRL Horizon, and possibly others) may stand to, or may already be impacting bison habitat and/or increasing the ability of non‐Aboriginal sports hunters to access the bison herd(s). ACFN and MCFN harvesters have found partially butchered bison carcasses (where only the choice cuts were taken by the hunter) in their customary harvesting areas and have expressed profound dismay at what they consider to be a disrespectful and wasteful practice. In addition, as the River and PAD waterways are used to access harvesting areas by boat in the summer and by snowmobile in the winter, impediments to these access methods as a result of reduced flows could further impact the MCFN and ACFN harvest. Black Bears Black bears are traditionally hunted along the River and their populations are of concern to Elders and harvesters (ACFN 2009; FMA 2005; Appendices A and B). In the summer, black bears frequent the PAD and the riparian zone of the River, where they feed on berries. In the fall, black bears can be found close to fish spawning areas. They are hunted along rivers and shorelines. Elders say that there has been a decline in black

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bears over the last 20 years, and have expressed concern about the prevalence of bear baiting activities in their traditional lands by sports hunters. While black bears may not be harvested in large numbers, the traditional products obtained from black bears are important for a variety of food, domestic, medicinal and spiritual purposes. Impacts to Black Bear Harvesting Because black bears are often spotted in and near riparian areas, and taken while hunters are travelling by boat, there is a concern that impediments to navigability of the River may impact the ability to harvest black bears.

4.1.2. Waterfowl The PAD offers outstanding habitat for waterfowl and the vast flocks of various species of ducks and geese that use the marshes and lakes of the PAD during their spring and fall migrations were, and continue to be, a staple for MCFN and ACFN (ACFN 2003, 2009; ICC 1999; Appendices A and B). The predictability of the harvest was important to food security, and, besides food, the products from the birds were used for a variety of domestic and artistic purposes. Harvesters continue to engage in the spring hunt, some people take time off of work for this purpose and it is considered an important activity for retaining the traditional culture (ACFN 2009). Birds are harvested with shotguns from boats in the River, on the PAD, and Lake Athabasca. In the PAD, especially important areas for the spring bird hunt that are known to the authors are Galoot Lake, Goose Island, and Flour Bay (there may be additional places that we are not aware of at this time). Impacts to Waterfowl Harvesting ACFN and MCFN members have said that waterfowl no longer stop on the PAD and Lake Athabasca in the vast numbers that they once did (Appendices A and B). The decline in waterfowl is, in part, related to reduction in habitat quality incurred as a result of decreasing water flows in the PAD, possibly as a result of the Bennett Dam (Stuart Adams & Associates et al. 1998). Members are also expressing concern about the effects tailings ponds have on migration patterns, waterfowl health and mortality. In addition, ACFN and MCFN members have expressed concern about impediments to their ability to access waterfowl hunting areas (Appendices A and B). As explained in Sections 4.4, 4.5 and 4.6, water levels in the PAD are declining. Declining water levels restrict access and impede customary hunting techniques.

4.1.3. Fish Fish procured from the Athabasca River, Lake Athabasca and the PAD was, and is, a staple component of the traditional diet that is fundamental to the food security and

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traditional economy of both First Nations (ACFN 2003, 2009; Appendix A and B). In addition, fish is a potential commercial resource for those who choose to obtain a commercial fishing license. Commercial fishing also provides opportunities for seasonal wage employment, and members of the First Nations directly benefit from these activities (although the number of those employed in these pursuits is unknown). Members of the First Nations are very concerned about the possible impacts to fish and fishing as a result of lower water flows in the Athabasca River (Appendix C). Net fishing is still a common method for harvesting fish, and some people also fish with line methods (e.g., rod and reel). Key fish species include, but are not limited to, jackfish, whitefish, goldeye, pike, pickerel, walleye, lake trout, ling cod among others (Appendices A and B). Specific fishing locations depend on the species and the season; the seasonal fish harvest takes place in accordance with fish spawning cycles, which differ for each species, and sometimes even amongst different populations of a particular species (for example whitefish in Brander Lake spawn at a different time than those in Lake Athabasca). Richardson Lake and Lake Claire are known to be important fish spawning grounds (ACFN 2009; Applied Aquatics 2009; Appendices A and B). The ecology of Richardson Lake is known to depend on Athabasca River flows (Applied Aquatics 2009). It is important to make clear that detailed research on ACFN and MCFN fishing practices, locations and the conditions that support fish harvest has not been undertaken to any great extent and is largely unavailable. Impacts to Harvesting Fish Elders say that in past (as recently as fifty years ago) it was easy to catch substantial quantities of fish in a very short period of time and that this is no longer the case today (Appendices A and B). MCFN and ACFN members say that many of the traditional fishing locations are no longer useable because of changes to water quantity and quality (Appendix A, B and C). For example, participants in the community engagement sessions said that there used to be good fishing in the Athabasca River, but that is no longer the case. Note that “good fishing” includes more than just a consideration of the presence/absence of fish; for example, the observed quality of fish, the ability to access preferred fishing locations, etc. An explicit evaluation of what conditions are necessary for “good fishing” has yet to be undertaken and could be accomplished through research that would support a traditional resource use plan. Members also have observed that water levels have declined dramatically in recent years, making it difficult or impossible to fish by boat along the River and its tributaries (Appendices A, B, and C). Members have also noted that declining water levels in the smaller lakes and streams could impact over‐wintering habitat and have raised concerns about increased fish mortality as a result of winter fish kills. In addition, community

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engagement participants expressed concern about possible impacts to fish (burbot and whitefish were mentioned) spawning habitat in the Athabasca River as a result of reduced flows. Observations of declines in the health and quality of fish in the Athabasca River and Lake Athabasca, and the relationship of contaminants in the water to that decline is a particularly contentious issue (Applied Aquatic 2009; Timoney 2007). Many ACFN and MCFN members are passionately concerned that fish flesh contaminated by industrial pollutants is linked to what they have observed to be increased rates of cancer in Ft. Chipewyan. Observations of fish deformities and increasing concern regarding water quality motivated ACFN to fund a study to assess the presence of mercury in local fish species (Applied Aquatic 2009). This study found high levels of mercury in predatory fish like pike and pickerel and recommended limits on consumption (Applied Aquatic 2009). Many people are managing their risk of exposure to contaminants by limiting (or even eliminating) their intake of fish from areas considered to be polluted. The overall health and well‐being effects on the ACFN and MCFN members residing in Ft. Chipewyan are unknown. While there are some fishing areas considered to be still “good” or uncontaminated (e.g., certain inland lakes), access and use of these areas may be prohibitive for a variety of reasons. For example, use of the inland lakes to the north and east of the Poplar Point area, around Pearson Lake, has been impacted by non‐Aboriginal recreational users (ACFN 2009). Other inland lakes (e.g, Brander Lake) are known to be good for fishing, but are a bit too far away or inaccessible to be an appropriate substitute for the River, Lake Athabasca and the PAD because use of these areas creates an additional burden in terms of costs (monetary and time). Finally, in some areas, for example Ronald Lake, the encroachment of development and associated activities discourages ACFN and MCFN harvesters from using these areas. Many ACFN and MCFN traditional land users are sensitive to having to comply with imposed access management and safety policies and can feel threatened by the presence of non‐Aboriginal land users. ACFN and MCFN assert that current IFN Guidelines for the Athabasca are putting fish species at risk, and, in turn, the rights of the First Nations to their traditional harvesting, to their health, and to their culture.

4.1.4. Trapping Trapping is an integral component of the traditional livelihood of the ACFN and MCFN, and traplines are important for the continuation of traditional land use activities above and beyond commercial trapping (e.g. Dersch and Bush 2008, p. 25; Passelac‐Ross 2005). While a variety of furbearers are trapped, muskrat trapping in the PAD was the keystone of the trapping economy in Ft. Chipewyan prior to the establishment of the

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W.A.C. Bennett Dam (ICC 1998). According to Elders, low fur prices in the 1980s were further impacted the fur economy. While trapping currently is not profitable from a monetary perspective ACFN and MCFN members continue to retain their traplines and engage in trapping activities. The ownership of a registered fur management area (RFMA) and the activities of trapping are considered very important to cultural retention and maintaining traditional opportunities for future generations (ACFN 2009). Many trappers continue to hold their traplines, many of which have been in their family for several generations and/or overlap lands used by their family for generations (e.g., traditional customary traplines and family harvesting areas), and they hope to pass their traplines along to younger family members (ACFN 2009). As of 1998, there were 200 people licensed to trap in Ft. Chipewyan, but no more than 20 active trappers (Stuart Adams & Associates et al. 1998). It is important to note that ACFN and MCFN members (who may or may not own an RFMA) also use the RFMAs of their family, friends and trapping partners (who may or may not be First Nations members, or members of the same First Nation). To our knowledge, there is no recorded information on how many ACFN and MCFN members utilize RFMA’s, which RFMA’s they use, why they use them and the specific uses that occur there. It is also important to note that the trapping activities of the First Nations also have non‐ commercial aspects, and are not limited to RFMAs. Non‐commercial trapping activities occur on‐reserve and in other areas throughout the traditional lands. For example, people often snare rabbits close to their residence. There is little recorded information on current consumptive trapping activities. Regardless of the commercial viability of trapping, the ability to trap is regarded as part of the culture, and learning trapping skills is considered important to ensure that future generations can sustain themselves from the land if need be (ACFN 2009). Impacts to Trapping Trapping relies on adequate water flows to sustain the necessary habitat for aquatic furbearers and other animals that are trapped and to sustain access to traplines and reserve‐lands (many of which are accessed via the River by boat in the summer and by snowmobile in the winter). Additional sections in this report highlight the concerns of the First Nations in respect to muskrat (which are important for trapping) and in respect to the ability to access traplines and reserve lands.

4.1.5. Gathering “Gathering” is a broad category that may include, but is not limited to, such activities as harvesting berries and other plant foods, collecting medicines, gathering firewood, and obtaining other natural materials and non‐timber forest products (feathers, stones, clay,

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roots, timber, plants for dyes, bark) that may be used for a variety of domestic and spiritual purposes. Other than berry‐picking and medicinal plant collection, many aspects of gathering are poorly recorded. For both ACFN and MCFN, berry‐picking and medicinal plant gathering localities occur along the Athabasca River and throughout the PAD. However, while there is ample recorded information on the commonly used medicine plants and berries, there is an absence of information on specific harvesting locations, or conditions that make harvesting locations desirable (i.e. what are the preferences that underlie decisions on where to harvest medicines and when?).

A recent study on traditional medicinal plant use in the Regional Municipality of Wood Buffalo found that declining water levels in the Athabasca River and Lake Athabasca have had a significant effect on riparian communities (Dersch and Bush 2008). Changing moisture regimes and flooding cycles alter plant communities in traditional plant collection areas. Declining water levels also have restricted access to traditional collection areas that are accessed by boat. Recommendations of the study included that water levels in the Athabasca River and Lake Athabasca be conserved.

4.2. WATER FOR DRINKING AND DOMESTIC USE The Athabasca River is a primary source of drinking water for residents of Ft. Chipewyan and for many traditional land users. The water intake for Ft. Chipewyan is situated on Lake Athabasca, within the flow from the Athabasca River channel as it makes it’s way to the Quatre Fourches River and thence to the Slave River. In the past, untreated River water was used for drinking water by traditional land users. Today, it is only used as a last resort by people out on the land when they do not have access to other water sources. Most people will no longer preferentially drink water directly from the River. In addition to drinking water, the River is used to obtain wash water and to water gardens (ACFN 2009; Appendix C). The River is also used to access other tributaries and springs that are used for drinking water out on the land. Impacts to Water for Drinking and Domestic Use Elders and other community members say that the quality of water in Lake Athabasca and in the Athabasca River has declined since they were young (Canada 2009a and 2009b; Mikisew 2006). They used to drink water directly from the Lake and the River and most will no longer do so (ACFN 2009; Appendix C). Some ACFN members have stated that water quality changed when the Great Canadian Oil Sands oil spill occurred in the 1960s (Canada 2009a and 2009b). It is evident that water quality in the River has passed a threshold from the perspective of the ACFN and MCFN. Within the span of two generations, water quality declined such that the First Nations could no longer drink the water directly from the Lake and the River. No study has yet been undertaken to

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determine when the threshold was breached (and what the water quality, or flow, parameters were in the River and the Lake at that time). While the Ft. Chipewyan water supply is treated, ACFN and MCFN members are expressing increasing concern about the link between contaminants in the water and rates of disease (especially cancer) in the community of Ft. Chipewyan. The community of Ft. Chipewyan is located in a depositional basin, in which metals and other contaminants tend to accumulate in fine‐textured sediments and is located downstream of major developments known to release contaminants into the Athabasca River (Timoney 2007). Concentrations of arsenic, mercury and polycyclic hydrocarbons appear to be rising as a result of oil sands development and some are at concentrations which may pose ecological and human health risks (Timoney and Lee 2009). It is likely that there are a variety of impacts (psychosocial, economic and health) that will emerge as concerns increase. Economic impacts include additional monetary and time burdens associated with obtaining water from alternative sources. For example, one of the community engagement participants said that he does not like the taste of the water that comes from the water treatment centre and so he collects drinking water from Dorey Lake. He uses a quad and a bucket to transport the water from Dorey Lake to his residence at Allison Bay. Another of the community engagement participants, who resides in a cabin situated on the banks of the Athabasca River, explained his difficulties in obtaining drinking and washing water. He will not drink the water from the Athabasca River as he considers it contaminated. He also explained that he will no longer use the Athabasca River for wash water after developing a rash after washing with the river water. He said that visitors to his cabin, on a separate occasion, also developed a rash after washing with the river water. Water security is a constant issue for him. He says that it is not possible to transport adequate supplies of drinking water to his cabin from town. There is no all season road to his cabin, which is located on the ACFN Reserve 201G, so water would have to be shipped by all‐terrain vehicle or by watercraft. Quad transport is not efficient because you cannot bring enough water per trip to make it worthwhile. A round trip to obtain town water by boat would take over four hours and is cost prohibitive for him. Instead, he obtains his drinking water from several different sources on the land. One collection location is Grayling Creek, upstream of its confluence with the Athabasca River. This location is an eight kilometer round trip for him to travel to collect drinking water. Before he had a quad, he had to walk to collect the water. There is a small creek across the River and upstream of his cabin that he used to collect water from. Collection there requires access by boat. He no longer collects there because the flow has declined in that creek and the water quality is now poor. He says that he observed that the flow

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declined in the creek when Industrial activities started to increase in the uplands that form the creek catchment. Not being able to collect drinking water from the Athabasca River while out on the land means that people using the land must transport adequate supplies of drinking water with them. For example, when hunting it is not always possible to pack adequate drinking water (needs vary according to the length of trip, temperatures, number of hunters). Depending on the methods of access, it might not be possible to accommodate the extra weight or bulk of heavy loads of water (especially if one is successful in the hunt). It is apparent that ACFN and MCFN members that use the land must have access to safe sources of drinking water on the land in close proximity to where they choose to use the land (ACFN 2009; Appendix C). Saying that they can go elsewhere, or that they can transport water from elsewhere is not a solution as they may not have the means to do so, or there may not be other locations that are appropriate. Concerns were also expressed that contaminants from the river water might be taken up by vegetables in gardens, and ultimately impact human health. Whether or not water (or resources obtained from the water or nourished by the water) is shown with scientific certainty to be contaminated, the perception that it is such can have negative psychosocial impacts on individual and community well‐being. The First Nations understand that the Phase II Water Management Framework is about managing water quantity, not quality, per se. However, it is important to examine what effects changing flows could have on water quality (and ultimately human health). For example, do the effects of contaminants increase at lower flows? As increasingly contaminated waters fill the PAD (as a result of air deposition of contaminants, perhaps), will decreased dilution (as a result of reduced flows leading to drying of the perched basins in the PAD) result in ecological effects (e.g., increased muskrat mortality?). Furthermore, at times of low flow it is more difficult to transport adequate water supplies, or to access alternative water sources. In addition, as industrialization of the region increases, it is likely that the ACFN and MCFN water sources (tributaries, springs, lakes) on the land that are considered to be “still good” (again, defining “good” would encompass a variety of conditions and preferences) are at risk of contamination.

4.3. MUSKRAT Muskrat require special consideration as the relationship between water flows in the PAD and muskrat populations is an issue of great concern to both MCFN and ACFN (Appendix C). Muskrat are used for sustenance, and their furs have both commercial and traditional

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value. Muskrat are not only a cultural keystone (given their importance to the traditional trapping livelihood), but also are considered by ACFN and MCFN Elders as an indicator of ecological integrity. Impacts to Muskrat ACFN and MCFN Elders say that muskrat populations in the PAD have declined since the 1980s and that Athabasca River flows are important for sustaining muskrat habitat in the PAD. When water levels are too low, muskrats can freeze to death. Declining water levels in the small perched lakes of the PAD is reducing good quality muskrat habitat. For example, Hilda Lake was once good muskrat habitat, but is now said to be too dry. There have been large kill‐offs of muskrats in the past; Elders say this could be due to “stagnant” or polluted water. For example, in 1988 there was a large muskrat kill‐off at Egg Lake and Frezie Lake, which are fed by the Athabasca River. The kill‐off did not affect another lake close by, the water level of which is not dependent on the Athabasca River. The community engagement participants recommended that a study be conducted to compare muskrat populations in waterbodies in PAD that are fed by the Athabasca River, compared to waterbodies in the PAD that are not dependent on the Athabasca River.

4.4. PEACE ATHABASCA DELTA The PAD is the largest boreal delta in the world and is recognized as a wetland of international significance under the Ramsar Convention. Prior to the construction of the Bennett Dam, the PAD had a rich and diverse ecology of international significance. The hydrology, landforms and lush vegetation of the Delta supported a diversity of birds, mammals and fish. The ecology of the Delta is sensitive and highly dependent on the water levels of various rivers and tributaries that feed the Delta. The flow of water in the PAD is fundamental to its unique environmental features. Periodic overland flooding caused by spring ice jams is necessary to replenish the many perched basins in the PAD (ICC 1998; Appendix C). The First Nations have depended upon the rich ecosystem of the PAD to sustain their traditional livelihood for generations. ACFN’s use of the PAD is largely concentrated in those areas of the PAD to the south of Lake Athabasca, including the Delta Reserve (Reserve 201) and areas around Jackfish (Richardson) Lake (this should not be taken as a definitive list of use areas). MCFN members also use these areas. ACFN’s traditional trapping economy was largely based on the rich harvest of muskrat from PAD and Reserve 201 (the Delta reserve) was well known as the area of prime muskrat habitat in the PAD. It was for that reason that Chief Jonas Laviolette requested that the lands encompassed by Reserve 201 be set aside to sustain the livelihood and culture of ACFN for future generations (ACFN 2003; ICC 1998; Wetherell and Kmet 2000).

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MCFN use of the PAD, known to the authors of this report, is largely concentrated in those areas of the PAD that lie within the Wood Buffalo Nation Park, including Lake Mamawi, Lake Claire, Embarras River and areas to the north of the Lake Athabasca (this should not be considered a definitive list of use areas). Given the close relationships amongst the two First Nations, members of each First Nation may utilize areas considered to be the customary use areas of the other First Nation. Other uses of the PAD by the First Nations include, but are not limited to, hunting migratory waterfowl, fishing, the harvest of aquatic furbearers for furs and food, moose and bison hunting. In addition to harvesting uses, access to upstream areas from Ft. Chipewyan is through the PAD usually via Fletcher Channel or Goose Island Channel. If the PAD cannot be navigated by watercraft during ice free months, then there is no access to the settlements, reserves, cabins and harvesting areas on the River and along the Richardson, Firebag and Embarrass (and other tributaries). Impacts of Flow Alterations on the PAD and on the First Nations There have been many flow alterations observed over time (Appendix C; ICC 1998). The number of spring floods has greatly reduced since the construction of the WAC Bennett Dam. The last major flood occurred in 1974. Since then, many perched basins are disappearing and two (Egg Lake and Pushup Lake) have disappeared. Willows and other vegetation are encroaching on wetlands. These changes have an effect on the number of species and the population of species (plant and animal) that ACFN members harvest. The changes have also an effect on the ability of ACFN members to travel through the PAD and to access harvesting locations in the PAD and to travel through the PAD to their camps, cabins and traplines, and to reach the Athabasca River. A report on the findings of an assessment on the impacts of the Bennett Dam on ACFN identified the relationship between ecological changes and impacts to ACFN’s rights and culture (ICC 1998). While these findings are specific to the impacts caused by changes to flows in the Peace River, and the subsequent effects to the hydrology of the PAD, these findings are useful in identifying key issues that might emerge should the flows of the Athabasca River be reduced. The summary of the findings presented below is taken directly from ICC 1998. In some cases editorial emphasis has been added, and in some cases, additional comments are provided in brackets.  Reduced frequency and magnitude of flood stages on the Peace River has greatly reduced the hydraulic damming of outlets from the Peace delta and Lake Athabasca to the Slave River. In turn, the lowered water levels in the Peace delta and Lake Athabasca has greatly reduced the backflooding of the Athabasca River and tributaries to Lake Claire and Mamawi. The disruption of this backflooding regime has led to greatly reduced and infrequent recharging of perched basin

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lakes and wetland on the Athabasca delta. Effects have been especially severe on the northern two thirds of the Chipewyan Reserve No. 201.  The stabilization of Lake Athabasca by the weirs on the Riviere des Rochers and Revillon Coupe has resulted in above average minimum water levels overwinter, as well as above average year round lake levels. The summer peak levels, however, are 0.5 metres below average. The net effect of these changes has been to reduce the amplitude of flooding during the spring and early summer, and to reduce open mud flats during fall and early winter. These changes have, in turn, reduced wetland habitat availability and quality for a large number of wildlife species and fish of important to the Chipewyan people.  Changes in vegetation as a result of the drying out of the Athabasca delta has lead to reduced availability of some medicinal and food plants for the Chipewyan people, as well as reductions in the availability of productive wetland and meadow habitats and ecosystem integrity.  Numbers of waterfowl throughout the Athabasca and Peace deltas are believed to have declined as a result of reduced nesting and brood rearing habitat, and the loss of large areas of suitable fall staging habitat. The net effect to the Chipewyan people is a loss of subsistence hunting opportunities during the spring and fall, as well as a reduced potential for a guided sports hunting industry.  Muskrat have declined substantially since the operation of the Bennett dam, with the exception of a short recovery associated with the exception flood in 1974 and attempts by Athabasca Chipewyan Band to manage wetlands in the No. 201 Reserve. Muskrat numbers on the Reserve following the construction and operation of the Bennett dam (and prior to wetland management on the Reserve) are in the order of 5 to 11% of previous numbers. Fur harvests realized during the post‐ dam conditions (1977 to 1988) are in the order of 9% of the peak harvest in 1974, and 8 to 22% of the potential harvest under optimal managed wetland conditions. Maximum losses of trapping income for muskrat pelts alone are in the order of $40,000 to $123,000 annually. The reductions in muskrat numbers has also negatively affected the abundance of other furbearers such as mink and fox, and ultimately the economic potential of trapping income for these species.  Changes in habitat quality and availability have negatively affected the distribution and numbers of moose on and adjacent to the Reserve No. 201. In turn, this has greatly affected the ability of the Chipewyan band members to obtain moose meat from the Athabasca delta, and has required travel to areas

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well outside the Athabasca delta to hunt, as well as increased dependency on store‐bought meat sources. The economic cost of these changes are not known. [Author comment: Nor are the health impacts]  Lower water levels have affected the ability of hunters to travel in the Reserve No. 201, as well as transportation of people and goods to and from the Reserve and Fort Chipewyan, and access to upstream areas (e.g., Fort McMurray).  Cumulative effects of vegetation changes, reductions in waterfowl, muskrat, moose and other wildlife, and more difficult travelling conditions has resulted in reduced interest by young people in traditional lifestyles and pursuits. In turn, the spiritual and cultural values of the Athabasca Chipewyan people have been detrimentally affected. Elders have expressed concern that upstream oil and gas water withdrawals from the Athabasca River are compounding the effects noted above (Appendices A and B). Even if the changes to water flows in the PAD are the result of natural causes, and within the natural range of variability, the potential for water withdrawals from the Athabasca River to exacerbate changes that ultimately link to impacts on ACFN’s rights, traditional uses and culture should be examined.

4.5. JACKFISH (RICHARDSON) LAKE Jackfish Lake, also known as Richardson Lake, is located in the PAD and known to be a particularly good spawning area for walleye and an important traditional fishing lake (ACFN 2003, 2009; FMA 2006; Applied Aquatic 2009). Jackfish Lake is tightly coupled with the Athabasca River with respect to water levels and water quality during the summer. The quality of the spawning habitat may be affected by water levels in the winter and the spring. Impacts to Jackfish Lake When the Athabasca River was high, Jackfish Lake would be full, but now mudflats obscure access. ACFN has, in particular, expressed concern about changes to the ecology of and access to Jackfish Lake and is recommending that a permanent diversion structure be constructed to direct the Richardson River through Jackfish Lake to ensure that the lake is refreshed and spawning habitat is maintained (Applied Aquatic 2009; FMA 2006).

4.6. TRAVEL, ACCESS AND SHIPMENT OF SUPPLIES During ice free months, given adequate flow conditions, water routes offer the easiest access through much of the First Nations Traditional Lands (Appendices A and B). After freeze‐up, and given adequate snowfall, the banks of rivers offer ease of navigation for sleds (historically dog sleds, and now snowmobile). The Athabasca River has been, and

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continues to be, a primary travel artery providing access between Ft. Chipewyan and Ft. McMurray, and between those settlements and various reserves, traplines, cabins and important harvesting areas (Calliou Group 2009). Some of these places are located directly on the River, while others are located off of other waterways or trails accessed via the River. It is important to note that access between Ft. Chipewyan and upstream areas via water routes requires travelling into and through the PAD. The PAD has a unique, complex hydrology that involves interactions of the Peace, Athabasca, Fond du Lac and Slave Rivers. The effects of lower water flows in the Athabasca River on PAD hydrology are of particular concern to the First Nations. The following summarizes the specific information documented about the use of the River for travel and access. Where possible, gaps in existing information are noted. In addition to any specific gaps identified below, the travel and trail networks of the First Nations have not been recorded to any great extent. While the Richardson River and the Firebag River are documented transportation routes into Richardson Backcountry, and the Embarras is known transportation route into Wood Buffalo National Park and part of the route through the Delta to the Athabasca River mainstem, more work is required to determine what other trails and travel routes are accessed via the Athabasca River, and to identify possible impediments to use of those routes that may be incurred from reduced water flows in the Athabasca River.

4.6.1. Travel and Access between Ft. Chipewyan and Ft. McMurray The only access between Ft. Chipewyan and Ft. McMurray during summer months is by air, or by boat. Members of both First Nations regularly travel by boat between Ft. Chipewyan and Ft. McMurray during summer months. These trips provide opportunities for purchasing supplies in Ft. McMurray at lesser costs than available in Ft. Chipewyan (where goods are air‐freighted in) and to visit family and friends (thereby retaining social cohesion of the community). Many ACFN and MCFN members continue to use this travel route (ACFN 2009; Calliou Group 2009). Some ACFN and MCFN Members will not travel by air (due to issues with personal safety, issues of affordability, etc.). These members would not be able to travel outside of Ft. Chipewyan (for provisioning and visiting trips to Ft. McMurray) during ice free conditions if not for boat travel. Members that travel between Ft. Chipewyan and Ft. McMurray will also often stop in to the camps and cabins along the river to visit and offer assistance (for example, to pick up and drop off supplies; to transport people or equipment; etc.). As well, the presence of other people on the river (in these camps and cabins), offers security to those travelling the river.

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4.6.2. Transportation of Goods and Provisions from Ft. McMurray to Ft. Chipewyan Historically, scows, river boats and barges were used to transport food and goods between Ft. McMurray and Ft. Chipewyan. Food transported to Ft. Chipewyan via barge was less expensive than that shipped via air. In the past, some ACFN and MCFN members were employed in the river trade, manning the boats and barges. This seasonal source of income complimented income earned through trapping during winter months. Records of income are not readily available.

4.6.3. Travel and Access to Reserve Lands Reserves represent localities of use and can be considered an indicator of other land uses and cultural values. Reserve lands were often chosen because of their proximity to villages or camps, key resource gathering locations, and spiritual or sacred sites (e.g., cemeteries). For example, almost all of the ACFN reserves were established at the location (or close to the location) of a historic settlement, the use of which has considerable time depth and is associated with various ACFN family groups. In addition, most of the ACFN reserves have an associated cemetery. There are many currently used cabins and camps located on both the ACFN and MCFN Reserves, which are used as bases from which to conduct hunting, fishing, trapping, gathering and berry‐picking. Preferentially, access to all of the ACFN Reserves during the ice free seasons is by water. The Poplar Point (I.R. 201G) and Point Brule (I.R. 201F) reserves are accessed directly via the River. The only other access to these reserves during ice free months is via all‐ terrain vehicle (or by air), although access by all‐terrain vehicle is not possible from Ft. Chipewyan. The Delta (I.R. 201 and I.R. 201B) and Jackfish Reserves (I.R. 201C, I.R. 201D, and I.R. 201E) are accessed via boat along the Fletcher and Goose Island Channels. There is no other access to these reserves during summer months (other than by air). Please note that MCFN members may also use, or benefit from the use of, ACFN reserve lands (and vice‐versa). Specific information on MCFN reserve lands was not available at the time of drafting this document. Further work is required.

4.6.4. Travel and Access to Trap lines Registered trap lines are a contemporary institutional mechanism that facilitates access to traditional land use areas for not only the individual trapper, but their extended families and hunting and land use partners. Trap lines are often used for many cultural and harvesting activities beyond trapping; for example, hunting, fishing, berry‐picking, and spiritual activities. While the disposition for a registered trap line is held

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individually, they often have significance for the collective use and rights of the particular First Nation. Any assessment of effects on the ability to access and use trap lines would require an assessment of not only the impacts to the individual trapper who holds the line, but to the First Nations’ Section 35 rights associated with use of potentially‐affected trap lines. In addition, it is not known whether specific information on access to each of these lines during summer versus winter months has been documented. There may be additional ACFN or MCFN trap lines, or trap lines held by other individuals but used by ACFN or MCFN members, that are not part of the existing database of information that was reviewed. More work is required to identify traplines utilized by ACFN and MCFN members, and to characterize the access conditions for these lines. Traplines that are held by ACFN members and accessed via the River and/or its primary Delta channels include RFMA #445, #2863, #1625, and #1248. RFMA #445 (around Richardson River) is accessed via the Richardson River, which itself is accessed from the Athabasca River. Specific information on MCFN traplines was not available at the time of drafting this document.

4.6.5. Travel and Access to Cabins and Camps Cabins and seasonal camps are used as a base for land use activities, harvesting and spiritual renewal. While it is known that there are cabins and camps in use by ACFN and MCFN members along the Athabasca River, and in the PAD, the locations of these currently used cabins are not recorded. More work is required to identify the specific locations of these cabins and their access conditions in order to more accurately predict whether there could be possible impacts to access.

4.6.6. Travel and Access to Sacred and Spiritual Sites and Areas For both First Nations, gravesites, spiritual sites and historic sites are highly valued and considered sacred. In addition to specific sacred places, the River itself is considered sacred, and the Traditional Lands as a whole are important to the spirituality, culture and way of life of the First Nations with the concept of the “Land” having an element of the sacred (ACFN 2009; Coutu and Hoffman‐Mercredi 2002; FMA 2006). In addition, access to lands that can be considered “true wilderness” (undeveloped, remote, empty of non‐Aboriginal land users) is important for the sense of solitude that is sought by ACFN and MCFN members when they renew their spiritual links with the land and that offers them the freedom to practice their traditional activities without fear of interference or abuse (Appendix A and B; ACFN 2009; FMA 2006). While the following attempts to summarize information specific to each First Nation, the separation of some of these aspects between the First Nations may not be truly

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representative. In addition, given the secrecy and confidentiality that is associated with much of the spirituality and sacred places of the First Nations, it is rare to have information on these aspects documented. Therefore, it is likely that this section is highly limited and should not be taken as a definitive picture of the sacred and spiritual sites of the First Nations. More work is required. ACFN Sacred and Spiritual Sites and Areas There are cemeteries, considered sacred sites, located across from the Point Brule (201F) reserve, and at the Poplar Point (201G) reserve. Access to both of these locations is by River during summer months. There is a cemetery located at one of the Jackfish Reserves which are accessible only by boat during the ice free months. These cemeteries are associated with the historic micro‐villages, are still in use (or were until very recently) and many ACFN members express a strong family tie to these places where their relatives are buried (ACFN 2003; ACFN 2009). In addition to the cemeteries that are associated with the historic micro‐villages, there are some gravesites located along the river. The specific location of these gravesites, and historical information about nature of the sites (e.g., exact number of burials, names of individuals there, dates of burials, etc.) has not yet been determined. There are some historic and archaeological sites recorded along the River that are considered sacred and are important to the traditional values and spirituality of tradition‐oriented ACFN members. One such location is where the Clearwater River meets the Athabasca River. “Where the Rivers Meet” is an ancient gathering place for Dene peoples and is considered sacred (ACFN 2009). Another previously recorded sacred ancestral gathering place along the Athabasca River is Cree Burn Lake, which is designated as HhOv‐16 in the Provincial Historic Site designation system (Coutu and Hoffman‐Mercredi 2002). Many sacred sites have not been recorded for fear of this information being misappropriated and misused. MCFN Sacred and Spiritual Sites and Areas A number of MCFN burial sites are found along the River and in the PAD. No information was available on whether the specific locations of sites on record have been verified. Moreover, the specific access conditions to these sites are not known. However, it is known that there was a graveyard at the Embarras Store on the Athabasca River that is accessed via the PAD and Embarras River. In addition to the burial sites, MCFN considers their camps and cabins as places of spiritual value because of they are important to maintaining the traditional culture of MCFN.

4.6.7. Travel and Access to Other Rivers and Waterbodies

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The Athabasca River is used to access other rivers and waterbodies that are particularly significant for ACFN and MCFN resource harvesting activities. For example, the Athabasca River is used to access:  The Peace‐Athabasca Delta  Embarras River  Lake Claire  Mamawi Lake  Galoot Lake  Jackfish (Richardson Lake)  Richardson River  Firebag River  Steepbank River While some of these areas are mentioned in more detail in other sections of this report, it is evident from the information review that more work is required to determine the particular access conditions for each of these areas in order to develop an understanding of what flow levels impact access (taking into account sociocultural and economic considerations such as seasonality of use, tools that support use, etc.). As well, it is likely that additional areas may be identified through further research.

4.6.8. Impacts to the Navigability of the River for Watercraft Based on the information reviewed and the community engagement sessions, the use of the river for travel and access depends on conditions that sustain navigability of the River, access to the river, and access off of the river to specific locations of use. Direct impacts to access result from the effects that water flows may have on the navigability of the River for watercraft and snowmobiles. This may result in increased risks (safety and economic), restriction of travel to more experienced users and those who can afford specialized equipment. All of these changes may lead to impacts on the harvesting of traditional resources, and on the ability to transfer traditional knowledge and culture. In addition, there may be socioeconomic effects. These effects are described in further detail below. Changes to the Navigability of the River for Watercraft Navigability of the River is affected primary by three ecological aspects related to lower water flows: o decreased depth to bottom

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o increased exposure to sandbars o confinement to the main channel Decreased depth to bottom as well as the presences of sandbars increases potential for large boats to bottom out, and/or for the propellers of outboard motors to hit bottom (thereby rendering them inoperable and possibly even damaging them). In the case of jet boats, if you have a heavy load, you may not be able to get your boat back “on step” if the water is too shallow. Because of the exposure of new sandbars and the shifting of sandbars, new routes must be found annually. Sometimes watercraft travel is confined to the main channel (which will be the deepest). The main channel does not always allow access to the river banks and to the islands in the river. It is also very sinuous and can be hard to follow for inexperienced river travelers. ACFN and MCFN members have observed that water levels have been decreasing for some time and they have expressed concern about this change. Current water levels are said to be very low compared to historic levels (Appendix C). Instead of being “full” all summer, there is now a shorter season for water in the river. Moreover, river travelers have expressed concern that there are more sandbars now than there used to be (ACFN 2009; Appendix C; FMA 2006). Changes to the Navigability of the River for Snowmobiles Navigability of the River for snowmobile travel is affected primary by the quality of ice (Appendix C). Irregular ice can form where water is shallow and fast‐moving, and where water draw down occurs rapidly (creating a big “space” between the water and the ice). The presence of irregular ice is increasing. In the past, ice was thicker and of a more “blue” colour. Water quality may be related to poorer ice conditions on the river. These changes make river travel more risky, both in terms of safety and in terms of time and expense. Personal Injury and Equipment Damage Travelers risk injury and damage to equipment if they hit a sandbar at high speeds. A boat that is hung‐up can require strenuous labour to remove. If the traveler(s) cannot free it, or if equipment is damaged, the travelers may be stranded until help arrives. Because river travel has reduced (as a result of worsening conditions that support use), there is less chance of receiving immediate help. Depending on preparedness and the weather conditions, travelers may be at risk of exposure. Increased Costs of Travel (time and, possibly, expense)

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Travel is slowed when you must take extra care to avoid sandbars. If you are restricted to the main winding channel you cannot take the “point to point” shortcuts, further slowing travel (ACFN 2009). Equipment damage is costly, as is investing in new technology (e.g., jet boat) designed for lower water flows. Some ACFN and MCFN members may not be able to afford the extra costs (which will restrict them from using the River). Impacts of Restrictions on River Travel As River travel becomes more difficult, only those who are highly skilled and experienced dare to travel on the River, or do so without great risk of injury or property damage (Appendix C). In addition, those who can afford more specialized equipment (e.g., jet boats) or can afford risk of damage to their existing equipment, may more readily travel the river. This impacts the ability to access harvesting and other use areas, and restricts opportunities to transmit knowledge and cultural training to younger ACFN and MCFN members.

4.6.9. Impacts to Barging and Shipment of Supplies Shallow waters are problematic for barges that transport goods between Ft. Chipewyan and Ft. McMurray. While the barge industry has collapsed because the barges are no longer able to navigate the river, there is still one small barge in operation. Barging, however, is still considered by resource developers to be an option for transporting goods necessary for oil sands development from a northern route (via the Arctic Ocean to the Mackenzie River, down the Slave to Lake Athabasca and southward). Dredging may be a possible option for mitigating conditions that contribute to poor watercraft navigability, but it is considered unacceptable by ACFN because dredging is associated with the release of contaminants that accumulate in river sediments. Release of these sediments through dredging washes them downstream to the Athabasca Lake basin, with possible impacts on drinking water and fish quality, and ultimately, human health. An alternative to barging and shipping supplies is air or land transport. Some items can only be sent by overland routes (restricted to the winter ice road). If warming conditions prevail, this might impact the ability to ship goods via a winter road. This might make barging a more attractive option. It also may increase the potential that an all weather road to Ft. Chipewyan is considered. The construction of an all weather road would have a variety of socioeconomic and rights‐related impacts that must be considered. While that is out of scope of the Phase II water management framework, we suggest that it might be necessary to look at the possible opportunity costs for alternative methods of transportation (e.g., barging) for shipment of goods.

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4.7. SPIRITUAL AND SACRED VALUES ASSOCIATED WITH THE RIVER There is a dearth of recorded information on the spiritual and sacred values of the First Nations, likely because of the confidentiality which the First Nations maintain around this aspect of their lives. As such, it is difficult to provide specific details at this time. Water is a sacred property of life, and the River is considered sacred because it is a main source of life‐giving water. The ties of the sacred nature of the Land (and the River) and the identity of the First Nations is a deep cultural connection that goes beyond the specific use of the land and is manifested in a stewardship ethic that requires traditionalists to protect the Lands (and waters) from abuse and misuse. Impacts and alterations to the River itself are considered profoundly disrespectful.

Traditionalists make an offering (usually tobacco) each and every time travel occurs on the lakes and rivers of Traditional lands (L. King, personal communication). The offering is to ask for a safe journey, a gesture of asking permission from the water spirit and a request for the safe and wellbeing of all those on the journey. At the same time, the request is also for the purpose of the journey (e.g., moose hunting, or travel to a specific location).

In addition to the River itself, ACFN Elders have explained that all of the Traditional Lands must be considered sacred because one never knows where there may be a burial. In the past, the Dene culture was highly nomadic and people lived and died on the trail (where they died, they were buried). In consideration that the Athabasca River is a travel corridor, it can be expected that there might be a high potential for unrecorded gravesites to be located along the River. There are reports of observations of a burial on the banks of the Athabasca at Embarras that was exposed (and identified) as a result of the bank eroding.

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5. DETERMINING IMPACTS OF DECREASED FLOWS ON THE RIGHTS, CULTURE AND WELL­BEING OF THE FIRST NATIONS

5.1. INTRODUCTION The First Nations have a number of concerns about the possible impacts of lower water flows on their traditional uses, their rights and their well‐being. An evaluation of impacts in relation to alternative flow regimes was not possible within this study. Because detailed information on the key ecological, sociocultural, and economic conditions that underlie the system of river use is lacking, it is difficult to make predictions or draw conclusions about what level of change would affect use or not. This is because much of the information that would be required to do so has not yet been compiled and we lack sufficient resources and time to do. What we do know, is that members of both First Nations say that their use of the river has already been impacted and that this impact derives, in most part, from lower water flows. We also know that it is important to maintain the uses of the River and the PAD for travel and access and for harvesting. This section summarizes the concerns of the First Nations in respect to the Phase 2 Water Management Framework, and offers suggestions on how to evaluate the possible impacts and possible studies that might provide information for doing so.

5.2. CONCERNS OF THE FIRST NATIONS IN RESPECT TO THE PHASE II WATER MANAGEMENT FRAMEWORK DFO is interested in understanding the causes of concern of the First Nations related to potential impacts of decreased flows in the Athabasca River. As described in the preceding section, the First Nations have already experienced impacts in relation to the River and feel that limits of acceptable change for water quality and quantity in the River have already been breached. Based on the results summarized in Section 4 and in Appendices A, B, and C, the causes of concern of the First Nations related to the Phase II water management framework are (but not necessarily limited to):

 Impacts to the ecology and health of the River and the Peace‐Athabasca Delta

 Impacts to travel and access

 Impacts to harvesting

 Socioeconomic impacts

 Cultural and spiritual impacts

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 Impacts to individual and community health

 Cumulative impacts

 Evaluating impacts from the perspective of the First Nations

 Meaningful consultation

The above list may not be exhaustive and the First Nations reserve the right to raise additional concerns as they arise. A concise explanation of each of these concerns is provided in the following subsections. The First Nations invite further discussion on these concerns.

5.2.1. Impacts to Ecology and Health of the River and the Peace­Athabasca Delta The First Nations have observed changes to the ecology and health of the River and the Peace‐Athabasca Delta, and have experienced impacts to their traditional use and their well‐being as a result. They are concerned that lower water flows may have further impacts on the ecology and health of the River and the PAD.

Specifically, what effects will lower flows in the Athabasca River have on:

 the hydrology of the PAD, including water levels in perched basins?

 water quality in the Athabasca River? In particular, in respect to contaminants present in the water and the sediment?

 fish health and habitat?

 muskrat health and habitat?

For each of these things, the First Nations consider it important to evaluate impacts against thresholds for traditional use and culture and to integrate their traditional knowledge into the assessment. This would require understanding the ecological conditions that the First Nation considers necessary to sustain their traditional rights and their values.

5.2.2. Impacts to travel and Access The River and the PAD are integral arteries in the traditional access network for the First Nations through their Traditional Lands. Some areas are only accessible by boat (or by air). Impacts to their ability to travel via watercraft are already being experienced by the First Nations. They are concerned that further decreasing flows will destroy completely their ability to use the River for travel and access by watercraft. In turn, impacts to the

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First Nations’ ability to travel the River, and to use the River as access to other culturally important places, will negatively impact harvesting.

5.2.3. Impacts to Harvesting The First Nations have experienced a multitude of impacts to their abilities to pursue harvesting of their preferred resources in their preferred locations according to their preferred means (e.g, vehicle choice; season of use; etc.). It is becoming increasingly difficult to access harvesting areas, game presence and abundance is decreasing in some preferred harvesting areas, and in some cases, the First Nations members are limiting their harvest due to concerns about contaminants in traditional foods and medicines. The First Nations are concerned that additional impacts to their ability to travel on the River and to use the River as part of their network of access to culturally significant areas within their Traditional Lands will further impact their ability to harvest. They are also concerned that impacts to the ecology and health of the River and the PAD will impact their ability to harvest resources. If the River system(s) and the PAD do not maintain sufficient quality and quantity of water for the needs of traditional users, it is likely that traditional harvesting activities may be impossible (from the perspective of those affected) and that a collapse of these cultural activities (with consequent effects on individual and community health, cultural identity, and likely other aspects) is possible (Appendices A and B).

5.2.4. Socioeconomic impacts Impacts to travel and access and to the harvesting of traditional foods have socioeconomic implications as well. For example:

 What additional economic (i.e. time and monetary costs) burdens may the First Nations be expected to incur as a result of having to go elsewhere to harvest traditional foods? Or to purchase alternative store‐bought foods, or trade or purchase traditional foods harvested by other First Nations?

 What additional economic burdens may be incurred as a result of having to purchase bottled or purified water, or water purification systems, for use on the land?

 What additional economic burdens may be incurred for those members who prefer to travel between Ft. McMurray and Ft. Chipewyan by boat during ice free conditions (as opposed to air travel) should travel using their customary means no longer be possible? Will they have to purchase new technology, or use alternative travel means? Or by those members who would have to charter a flight to reach places (harvesting areas, camps and cabins, etc.) on their

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traditional lands that are preferentially accessed by boat? From the views of the affected First Nations members, are there even acceptable substitutions for travel by boat?

 What additional economic burdens may be expected to be incurred for those members who transport supplies via boat during ice free conditions if they are no longer able to do so and either have to transport supplies via air or purchase supplies at the Northern Store in Ft. Chipewyan?

 For each of these economic changes, do the changes fall within a limit of acceptable change to the First Nation or is this a situation where no replacement (in terms of resource or place) is deemed acceptable (therefore the loss is potentially an irreversible one)?

5.2.5. Cultural and Spiritual Impacts The First Nations are concerned that the impacts of lower water flows on their ability to harvest resources, to access culturally significant and spiritual/sacred places, and to travel on the river will further erode their ability to practice their culture, to reinforce their cultural knowledge (e.g., traditional environmental knowledge), and to provide opportunities for passing their culture and knowledge on to younger generations. This leads to the loss of cultural knowledge and values and is in opposition to the goals of the First Nations to sustain their cultures and traditional livelihoods for future generations. It is predicted that should the trend of increasing development continue, the traditional uses associated with the Athabasca River would likely change within less than one generation (Appendices A and B).

In addition, impacts to the aesthetic and sensory conditions, and the conditions by which a First Nations person might define the “health” or ecological integrity of a certain place on the land can impact the spiritual or sacred values associated with the land. This can impact the First Nations uses of the land (or waters) for spiritual purposes. There may be no alternatives or appropriate (as evaluated from the perspective of the potentially affected members) replacements for this loss. Further research is required into this issue as there is inadequate recorded information on spirituality and sacred values in order to inform an adequate assessment of this type.

5.2.6. Impacts to Individual and Community Health The First Nations are concerned that they will suffer impacts to their individual and community health as a result of lower flows in the River. For example:

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 What will be the health impacts of reduced harvesting of traditional foods? Health impacts might relate to replacement of traditional foods with store‐ bought foods, which have poorer nutritional value, and might relate to reduced physical activity. To answer this question, a much more comprehensive understanding of traditional foods use for each First Nation is required. In addition, a much better understanding of the preferences that underlie the harvesting and consumption of traditional foods is required (for example, how is “contamination” defined, recognized and evaluated by individual harvesters or consumers?).

 What are the direct health effects of consuming contaminants in traditional foods? Do these contaminants have synergistic effects amongst themselves, or amongst other contaminants common in every‐day life (e.g., nicotine).

 What will be the health impacts (e.g., chance of increased injury and associated possible socioeconomic impacts that result from this, for example, loss of work time) of decreased safety related to navigability issues for river travel?

 What are the community and individual health impacts of concerns about contamination of water and traditional foods? How do these concerns affect individual and community feelings of security and evaluation of well‐being? How do these concerns influence individual preference in respect to harvesting and consumption of traditional foods?

5.2.7. Cumulative Impacts The First Nations have already experienced a number of impacts due to activities and facilities associated with oil sands development, other industrial land uses, and recreational land uses. More oil sands mines (e.g., UTS/Teck Frontier and Equinox, Shell Jackpine Mine Expansion and Pierre River Mine) and in‐situ developments are proposed and new oil sands leases are under exploration (e.g., Imperial “Muskeg” lease, UTS/Teck Lease 421). The First Nations are concerned that the impacts of lower water flows on their ability to harvest resources, to access culturally significant and spiritual/sacred places, and to travel on the river will compound the effects of the cumulative industrialization of the Lower Athabasca Region on their culture, their rights, and their community and individual well‐being. From the perspective of the First Nations, it would be erroneous to look at the impacts that would derive from lower water flows in isolation from the cumulative picture.

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5.2.8. Evaluating Impacts from the Perspective of the First Nations The First Nations assert that the evaluation of impacts that may incur from lower water flows in the Athabasca River require the application of their traditional knowledge and their values in the assessment. Furthermore, they assert that the establishment of a First Nations “in‐stream flow need” is necessary to evaluating the impacts and acceptability of alternative flow regimes, which would provide information necessary to inform a meaningful consultation process. A threshold based on the perspective of the First Nations would allow comparisons of alternate flow regimes to make clear what the levels of possible impact would be.

5.2.9. Meaningful Consultation The First Nations are concerned that a decision on the Phase II water management framework will be made without appropriate consultation occurring. Meaningful consultation requires fully understanding what the impacts of a proposed activity or plan will be on the Section 35 rights of the affected First Nation(s) and requires that appropriate actions are taken to substantively address the concerns (whether through mitigation, compensation or accommodation).

5.3. EVALUATING IMPACTS: FIRST NATIONS IN­STREAM FLOW NEED The First Nations assert that developing an “in‐stream flow need” that is particular to their First Nation is necessary to fully explore possible impacts of alternative flow regime scenarios and to inform the evaluation of predicted impacts. The particular knowledge and values of each First Nation would be required to inform the assessment process. In‐ depth community consultation would be required on the predicted impacts, and on the proposals to address impacts.

At this time, there is insufficient information and capacity to develop a First Nations in‐ stream flow need. It is likely that the development of this type of threshold would be an interdisciplinary exercise that would require a variety of experts, including the traditional scientists and current harvesters of the First Nations. It would likely involve additional research on the particular conditions that underlies the preferred exercise of the First Nations’ rights. The particular kinds of questions that might be answered in the pursuit of such research are appended to this report (Appendix E, Information Requirements). Additional questions would be necessary as a better understanding of the required research unfolds.

Determining an instream flow need for ACFN and MCFN might depend on determining thresholds for three key limiting factors:

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o Navigability of the River

o Hydrology of the PAD

o Water quality

For each of those three issues, the specific thresholds at which ACFN and MCFN experience impacts to their use need to be identified. We expect that this kind of assessment would be complex and perhaps beyond the scope of any one discipline.

Determining whether or not a specific change is an impact goes beyond identifying where people use the river or the land, and requires understanding preferences in terms of the economics of use and the hardship or burdens associated with forced changes to use. For example, can ACFN and MCFN harvesters afford new technologies that would help to support use of the river at lower flows? How far are people willing to pack meat and other resources by hand in order to get from the point of harvest to their boat? This kind of preference research has not yet been completed, requires specialized expertise, and is beyond the scope of the current study.

In addition, more specific research with land users and harvesters is required to examine when they experienced impacts to their use of the River. It would be important to get the river users’ evaluation of how “severe” (or significant) the impact was and to pinpoint the years and seasons in which the category of impact occurred in order to cross‐reference this against ecological conditions (e.g., flow rates) at that time. Comparison of impact, severity and conditions amongst different users/harvesters would allow a more thorough understanding of what the possible thresholds may be.

For the Peace‐Athabasca Delta, one would need to analyze different flow regimes on the PAD (this is very complex) and incorporate information on uses, preferences and previous impacts (as described above) that would be obtained through interviews.

For water quality, this threshold has already been breached in respect to both drinking water and fishing. Research is required to determine what could be done to bring this back into an acceptable level, if possible. A comprehensive study is required to determine the sources of contamination and to implement tangible ways of mitigating the accumulation of contaminants in the River. Current guidelines that allow proponents to release wastewater so long as monitoring shows that guidelines are being met are problematic. As well, more research is required on the actual health effects of contamination in the river, as well as the health and well‐being impacts of that derive from the ACFN and MCFN community’s understandings about contamination in the river.

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5.4. INFORMATION GAP OVERVIEW Overall, there is a lack of detailed information on the key ecological, sociocultural, and economic conditions that underlie the system of river use and thus, it is difficult to make predictions or draw conclusions about what level of change would affect use or not. detailed research on many ACFN and MCFN traditional activities has not been undertaken to any great extent and is largely unavailable.

A comprehensive understanding of the specific locations utilized by ACFN and MCFN members, including specific traplines, reserve lands, cabins, trails, and resource harvesting areas is not known. The specific relationships between water flows and use (for example, at what level of water does someone have difficulty accessing their cabin?) are not known in any great detail. It is evident from the information review that more work is required to determine the particular access conditions for use areas (e.g., reserve lands, traplines) in order to develop an understanding of what flow levels impact access (taking into account sociocultural and economic considerations such as seasonality of use, tools that support use, etc.). As well, it is likely that additional areas may be identified through further research. More work is required to identify use areas and to characterize the access conditions for these lines.

It was outside the scope of this study to provide an exhaustive list of plant and animal species utilized, the specific uses, and conditions of their use (e.g., seasonality considerations, etc.). In addition, it is possible that not all activities have been captured in this report.

Further studies are required to elucidate the network of relationships among traditional resources, harvesting activities, traditional social institutions (e.g., networks of exchange and reciprocity), and the various constituents of well‐being (including cultural identity) for each First Nation. This would help to develop tools that would assist in bringing First Nation’s rights and values into planning and decision‐making.

5.5. POSSIBLE STUDIES

5.5.1. Cultural Needs Assessment Further studies are required to elucidate the network of relationships among traditional resources, harvesting activities, traditional social institutions (e.g., networks of exchange and reciprocity), and the various constituents of well‐being (including cultural identity) for each First Nation. Cultural needs assessments of this type would help to develop traditional resource use and management plans, which would include developing

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thresholds for key species and ecological conditions (e.g., water flows in the Athabasca River) that are integral to sustaining the culture. Such a study would be an interdisciplinary effort to develop an understanding of the key components supporting the meaningful practice of rights and the relationship of these rights to the culture and well‐being of the First Nations. Among other things, this kind of study would gather resource use, health, socioeconomic, and ecological information and apply health and dietary assessment methods, ethnographic methods, social survey methods, and geospatial information analysis. A cultural needs assessment study would support the development of a traditional resource use plan.

5.5.2. Traditional Resource Plan A traditional resource use plan is a means of providing information to decision makers which will supplement existing information and fill information gaps – ultimately, consideration of this information will lead to a more credible system of decision making which integrates FN information This kind of Plan is different than a traditional use or traditional knowledge study, which focuses on where resources were traditionally harvested and are currently harvested. The purpose of a traditional resource use plan is to determine what resources are needed, now and in the future, to ensure the First Nations’ abilities to exercise their harvesting rights now and into the future. The specific objectives of such a plan would be to:  To provide credible, sufficient and reliable information on the land and resource needs of the First Nations to meaningfully exercise their Treaty and Aboriginal rights within their Traditional Lands.  To identify culturally‐appropriate thresholds for key ecological, sociocultural and socioeconomic aspects (e.g., specific resources, remoteness, aesthetics, contaminants, language, etc.) that sustain the exercise of the First Nations’ Treaty and Aboriginal rights.  To assist the First Nations, industry, and the Crown in making decisions about resource development by identifying land and resource management strategies that ensure continued exercise of rights (e.g., protected or conservation areas; hunting restrictions; set‐backs; timing windows; access management; etc.).

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5.5.3. Further Study on Muskrat Health and Habitat in the PAD The community engagement participants recommended that a study be conducted to compare muskrat populations in waterbodies in PAD that are fed by the Athabasca River. Further consultation is required with knowledgeable members of the First Nations to scope this type of study.

5.5.4. Water Quality Members of the First Nations have expressed that acceptable levels of water quality have already been breached. We understand that the Phase II Water Management Framework is about managing water quantity, not quality, per se. However, it is important to examine what effects changing flows could have on water quality (and ultimately human health). For example, do the effects of contaminants increase at lower flows? As increasingly contaminated waters fill the PAD (as a result of air deposition of contaminants, perhaps), will decreased dilution (as a result of reduced flows leading to drying of the perched basins in the PAD) result in ecological effects (e.g., increased muskrat mortality?). Regarding water quality, research is required to determine what could be done to bring this back into an acceptable level, if possible. A comprehensive study is required to determine the sources of contamination and to implement tangible ways of mitigating the accumulation of contaminants in the River. Current guidelines that allow proponents to release wastewater so long as monitoring shows that guidelines are being met are problematic. As well, more research is required on the actual health effects of contamination in the river, as well as the health and well‐being impacts of the perception of contamination in the river. More research is also required on whether impacts to habitat quality or stressors to aquatic life (such as fish species) that derive from reduced flows are increased in combination with contaminants in the water. Even if the changes to water flows in the PAD are the result of natural causes, and within the natural range of variability, the potential for water withdrawals from the Athabasca River to exacerbate changes that ultimately link to impacts on ACFN’s rights, traditional uses and culture should be examined.

5.5.5. Community Based Monitoring The First Nations either have existing, or in the process of developing, community based monitoring (CBM) programs. These programs provide a way of integrating First Nations values into the monitoring and evaluation of environmental quality and related rights‐ based issues in the Lower Athabasca Region. It is quite possible that the CBM programs would be a good forum within which to gather information necessary to gather and understand information about the impacts of alternative flow regimes on the rights and

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traditional uses of the First Nations. This could help to evaluate whatever eventual impact hypotheses are derived in the P2FC process (with the understanding that the P2 Water Management Framework may require amendments as additional information arises). There may be other relevant applications of the CBM programs.

5.6. COMMUNITY REVIEW AND VERIFICATION Community review and verification of this draft report is required prior to its finalization. Such a review was not possible due to resource and time constraints. Community engagement participants stated that their information cannot be used unless a verification meeting is held with all participants. In addition, it is possible that this report has missed key activities or concerns. ACFN IRC and MCFN GIR would like to discuss this further with DFO.

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6. REFERENCES Alberta Environment [AENV] 2002 The Northern River Basins Study Summary Report. Available on‐ line: [http://www3.gov.ab.ca/env/water/nrbs/sect1/sect16.html] 1988 The Northern Athabasca River Basin Study: A Native People’s Perspective on Current and Historical Water Resource Issues. Prepared by the Ft. McKay Indian Band, Ft. Chipewyan Indian Band and the Ft. Chipewyan Cree Band for Alberta Environment Planning Division, Edmonton, Alberta. March, 1988. Alberta Executive Council 1970 Death of a Delta – a Brief to Government Applied Aquatic Research Ltd. [Applied Aquatic] 2009 Report on Fish Health in Richardson (Jackfish) Lake and Old Fort River Bay (Lake Athabasca), Alberta – Athabasca Chipewyan First Nation. Unpublished study report submitted to Athabasca Chipewyan First Nation, Ft. Chipewyan, Alberta, by C. Mushens and B. Barton, Applied Aquatic Research Ltd., Calgary, AB. August, 2009. Athabasca Chipewyan First Nation [ACFN] In prep. Athabasca Chipewyan First Nation Consultation Protocol [DRAFT]. In progress. 2009 Interviews conducted to support development of a preservation areas strategy for ACFN (study in progress). 2008 Proposal for co‐management of Richardson Backcountry. Submitted to Alberta Sustainable Resource Development on October 22, 2008. 2003 Traditional Land Use Study. Fort Chipewyan, AB: Athabasca Chipewyan First Nation. Athabasca Chipewyan First Nation Environment Division [ACFN ED] 2008 Athabasca Chipewyan First Nation Traditional Environmental Knowledge and Traditional Land Use Study for the Proposed Shell Jackpine Mine Expansion & Pierre River Mine Project. Prepared by

References 49

the Athabasca Chipewyan First Nation Environment Division, Fort Chipewyan, Alberta, for submission to Shell Canada Energy. Athabasca Chipewyan First Nation Industry Relations Corporation, Fort McMurray First Nation Industry Relations Corporation, and Mikisew Cree First Nation Government and Industry Relations [ACFN IRC et al.] 2009 Phase II Lower Athabasca River In‐stream Flow Needs Consultation Process Proposal. Submitted to Alberta Environment, as represented by Rick brown, and to Department of Fisheries and Oceans, as represented by Brian Mackowecki, April 1, 2009. Unpublished document on file with the Athabasca Chipewyan First Nation Industry Relations Corporation, Fort McMurray, AB. Athabasca Chipewyan First Nation Industry Relations Corporation 2009 Letter dated October 9, 2009 to Alberta Sustainable Resources Development, regarding the Need to Protect Bison. Calliou Group. Mikisew Cree First Nation TLU interview report Total E&P Canada Joslyn North Mine Project. Prepared for the Mikisew Cree First Nation GIR. Canada 1998 Canada’s Action Plan for Food Security. Available on‐line: http://www.smartgrowth.bc.ca/Portals/0/Downloads/CanadaActi onPlanFoodSecurity.pdf

2009a Standing Committee on Environmental and Sustainable Development. Evidence Number 20, Unedited Copy, Tuesday, May 12, 2009, Edmonton, Alberta. 2009b Standing Committee on Environmental and Sustainable Development. Evidence Number 21, Unedited Copy, Wednesday, May 13, 2009, Edmonton, Alberta. Canadian Natural Resources Limited Application. 2003. N. 1273113 Transcripts of the Proceedings at Hearing, September 22, 2003, pages 1179‐1394. The Minister of the Environment, Canada, and the Alberta Energy and Utilities Board. Constitution Act, 1982, Part II Section 35.1(a) and (b)

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Coutu, P.R. and L. Hoffman‐Mercredi 2002 Inkonze: the Stones of Traditional Knowledge – a Story of the Athabasca Tar Sands. Thunderwoman Ethnographics, Edmonton, Alberta. Cumulative Effects Management Association [CEMA} 2004 Historical trails research project – Wood Buffalo Municipality. August 2004. Prepared by Points West Heritage Consulting Ltd. and ISL Group Ltd. 2005 Wildlife movement traditional environmental knowledge workshops – wildlife movement in the Regional Municipality of Wood Buffalo. December 2005. Prepared by FMA Heritage Resource Consultants Inc. Dersch, A. and C.D. Bush 2008 Identifying Traditionally Used Plants in the Regional Municipality of Wood Buffalo. Unpublished report prepared for Cumulative Environmental Management Association Sustainable Ecosystems Working Group Traditional Use Plants Task Group, June 2008. FMA Heritage Resources Consultants Inc. [FMA] 2006 Athabasca Chipewyan First Nation Traditional Ecological Knowledge and Land Use: Synenco Northern Lights Project Environmental Impact Assessment. September 2006. Calgary, AB. 2007 Traditional ecological knowledge report: Synenco Energy Inc. Northern Lights Oil Sand Development. Prepared for the Mikisew Cree First Nation. Freemount, H. 1978. Athabasca and Embarras River use. Wood Buffalo National Park. Fumoleau, R. 2004 As long as this land shall last – a history of Treaty 8 and Treaty 11. 1870 – 1939. University of Calgary Press, Alberta, Canada. Garibaldi, A. and N. Turner. 2004 Cultural keystone species: implications for ecological conservation and restoration. Ecology and Society 9(3): 1. [online] URL: http://www.ecologyandsociety.org/vol9/iss3/art1/

References 51

Indian Act (R.S., 1985, c 1‐5) Indian Claims Commission [ICC] 1998 Athabasca Chipewyan First Nation Inquiry W.A.C. Bennett Dam and Damage to Indian Reserve 101 Claim. Mackenzie Regional Health Service [MRHS] and Dene Nation 1995 Moose. Nutrition Fact Series B. Produced by the Mackenzie Regional Health Service and the Dene Nation. Funded by the Arctic Environment Strategy. Available on‐line: http://www.hlthss.gov.nt.ca/pdf/reports/healthy_eating_and_act ive_living/2002/english/nwt_traditional_food_fact_sheets/dene_ and_metis_traditional.pdf McCormack, P.A. and R.G. Ironside (Editors). 1993 The uncovered past: roots of Northern Alberta Societies. Circumpolar Research Series Number 3. Canadian Circumpolar Institute University of Alberta, Canada. Mikisew Cree First Nation [MCFN]

2006 Submission for intervention re: Kearl Oil Sands Project, Application No. 1408771 and 1414891. Submitted by Prowse Chowne LLP on behalf of MCFN, October, 2006

Mikisew Council and the Traditional Land Use Committee

n.d. Ayapaskowinowak: Ta Kiskissotamak Kayas Pimatisowin Oti Nikan Kichi (Acknowleding the Past, Securing the Future – Traditional Land Use of the Mikisew Cree First Nation)

Ohlsen, D. 2008 Lower Athabasca River, Phase II Water Management Framework, Process Guidelines. Compass Resource Management.

PACTeam Canada Inc.

2007 Report on the southern territory use and occupancy mapping project. Prepared for the Mikisew Cree First Nation.

References 52

Passelac‐Ross, M.M. 2005 The trapping rights of aboriginal peoples in northern Alberta. CIRL Occasional Paper #15. Canadian Institute of Resources Law, April 2005. [on‐line] http://dspace.ucalgary.ca/bitstream/1880/47194/1/OP15Trapping.pdf R. v. Sparrow, [1990] 1 S.C.R. 1075 Stuart Adams & Associates 1998 Fort Chipewyan way of life study summary report. Vancouver, B.C.: Stuart Adams & Associates. Timoney, K.P. 2007 A Study of Water and Sediment Quality as Related to Public Health Issues, Fort Chipewyan, Alberta. Completed on behalf of the Nunee Health Board Society, Fort Chipewyan, AB by Treeline Ecological Research, Sherwood Park, AB. Timoney, K.P. and P. Lee 2009 Does the Alberta Tar Sands Industry Pollute? The Scientific Evidence. The Open Conservation Biology Journal, 3:65‐81. Turner, N.J., R. Gregory, C. Brooks, L. Failing, T. Satterfield 2008 From Invisibility to Transparency: Identifying the Implications. Ecology and Society 13(2): 7 [on‐line] URL: http://www.ecologyandsociety.org/vol13/iss2/art7 Weatherell, D.G., and R.A. Kmet 2000 Alberta’s North: A History, 1890‐1950. Edmonton, AB: Canadian Circumpolar Institute Press, the University of Alberta Press and Alberta Community Development. Wein, E.E., J.H. Sabry and F.T. Evers 1991 Food Consumption Patterns and Use of Country Foods by Native Canadians near Wood Buffalo National Park, Canada. Arctic 44(3): 196‐205. Woodward and Company Barristers and Solicitors Law Corporation. n.d. Interviews and land use mapping conducted with ACFN Community Members in December 2008 and January 2009 in support of the judicial review

References 53

APPENDIX A – ACFN DESKTOP STUDY SUMMARY

A.1 INTRODUCTION TO APPENDIX A This section summarizes the information compiled by MSES about ACFN traditional land use as a result of the desktop study that they conducted. It includes a summary of the information sources reviewed, a summary of results of the relationship of the River to traditional land use, and a summary of conclusions about the impacts of decreased water flows on ACFN.

A.2 INFORMATION SOURCES REVIEWED MSES reviewed the following information sources for the desktop study:  Alberta Executive Council. 1970. Death of a Delta – a Brief to Government.

 Athabasca Chipewyan First Nation (ACFN). 2003a. Traditional land use study. Fort Chipewyan, AB.

 Athabasca Chipewyan First Nation (ACFN). 2003b. Footprints on the land: tracing the path of the Athabasca Chipewyan First Nation. Fort Chipewyan, AB.

 CEMA. 2004. Historical trails research project ‐ Wood Buffalo Regional Municipality, August 2004. Prepared by Points West Heritage Consulting Ltd. And ISL Group Ltd.

 CEMA. 2005. Wildlife movement traditional environmental knowledge workshops – wildlife movement in the Regional Municipality of Wood Buffalo, December 2005. Prepared by FMA Heritage Resource Consultants Inc.

 FMA Heritage Resources Consultants Inc. 2006. Athabasca Chipewyan First Nation traditional ecological knowledge and land use report prepared for Synenco Northern Lights Oil Sands Development Project Environmental Impact Assessment. September 2006. Calgary, AB.

Appendix A ACFN Desktop Study Summary A‐1

 Woodward & Company Barristers and Solicitors Law Corporation. Interviews conducted with ACFN Community Members in December 2008 and January 2009 for the judicial review.

A.3 SUMMARY OF RESULTS

A.3.1 ACCESS In the past the Athabasca River and tributaries served as a travel route and access to trail networks used by ACFN for hunting, fishing, trapping, and harvesting berries and medicines. In the summer a boat could be used to travel the River and tributaries. In the winter, trails along banks of tributaries or on the Athabasca River would be used for dog sleds. Today the location of energy developments and infrastructure impedes access between the river, tributaries and adjacent upland areas. Access to remaining harvesting areas along the river is affected negatively as a result of declining water levels which make boat travel difficult. There is also an additional issue of increased access to the area by recreational users as ACFN members have noticed the dramatic increase of all‐terrain‐ vehicles (ATV) trails and users whose presence have an impact on harvesting.

A.3.2 HUNTING According to ACFN Elders, they used to hunt a lot along both sides of the Athabasca River and associated tributaries and riparian zones. For example, bears were harvested along the rivers in the summer and the fall – the specific locations for harvest changed seasonally as bears moved amongst their seasonal food resources such as berry patches and fish spawning locations. Moose are an important staple in the ACFN diet. The Athabasca River, its tributaries, and the PAD provide important moose habitat. In the summer, moose are found along the wet and grassy riparian areas of the River. In the winter they are found on high ground, or in larger swamps or along rivers with less snow. In the spring, the riparian zones around creeks provide moose calving habitat. Waterfowl are an important resources harvested from the PAD and Lake Athabasca. The spring waterfowl season begins when birds arrive in April. Birds are harvested from boats. In the past, a typical family would harvest up to 200 ducks, up to 50 geese and several swans a year (the desktop review did not provide information on current harvesting levels). Although the Athabasca River is still used by ACFN for traditional hunting, there have been major changes to the locations where this occurs, as well as the success of the hunts

Appendix A ACFN Desktop Study Summary A‐2

and the condition of the animals. These changes are attributed by ACFN Elders to several factors including reduced river flows, an influx of non‐Aboriginal hunters, and increased difficulty of travel along the Athabasca River and tributaries.

A.3.3 FISHING Fishing occurred throughout the year: summer, fall and winter. Fish was used for food, and was very important for trap bait and dog food (for dog teams) as well. Families would live along the Athabasca River in the summer and move inland to the various lakes and smaller rivers during the fall. Traditional fishing areas include Jackfish (Richardson) Lake and Creek, along the Athabasca River, and various points on Lake Athabasca including Old Fort Point, the mouth of the Firebag River, and the many smaller inland lakes and creeks around the Athabasca River, especially in the area of the Poplar Point and Point Brule reserves. According to ACFN Elders, many of the traditional fishing areas are no longer useable because of changes to water flows (quantity) and heavy pollution (quality). The water level has experienced a dramatic decline in recent years making it difficult or impossible to use boats to fish, both along the Athabasca and Firebag Rivers. It is believed that the waters have become polluted since the oil sands mines went in during the 1980s.

A.3.4 BOATING AND TRAVEL The Athabasca River and its tributaries have been the main transportation and trade routes for the ACFN for both summer and winter travel. During the summer, the main travel routes were by water since much of the surrounding country is muskeg and thick brush, and traversing that landscape in summer was (and continues to be) very difficult. During winter, dog sled trails often followed the banks of rivers for navigation purposes. The ACFN rely on the Athabasca River for transportation between Lake Athabasca to Fort McMurray, and to their settlements along the River and tributaries. Current water levels are said to be very low compared to historic levels. There used to be some sandbars along the journey from Poplar Point to Lake Athabasca, but some ACFN members have noted that now every summer on the way to the PAD and Lake Athabasca new routes are required because there are too many sand bars. It is thus more difficult for people to travel by boat on the Athabasca River and PAD to the places where they want to harvest traditional resources. Snowmobiling along Athabasca River in the winter becomes dangerous because the fluctuating water levels cause irregular ice.

A.3.5 TRAPPING

Appendix A ACFN Desktop Study Summary A‐3

Trapping was an integral part of life for the ACFN, providing all elements required to sustain their livelihood: food, clothing, and income. Wolves, lynx, fisher, and marten were trapped on land for furs while muskrat, beaver, mink, and otter were semi‐aquatic species that were trapped on the PAD and surrounding marshes and lakes for pelts. Families would trap during the winter and spring and when the lakes and waterways were clear of ice in the spring, families would travel back to Fort Chipewyan to sell furs and refresh necessary supplies. ACFN community members have noticed that muskrat numbers have declined since the construction of the Bennett Dam in British Columbia because the dam hinders flooding of the PAD which reduces the habitat available to support muskrats. Muskrat populations depend on cycles of floods and dry years, and the usual big Spring floods are not believed to occur anymore. With lower water levels, many smaller lakes, sloughs, and marshes dried‐up altogether or froze to the bottom in fall and winter. It is believed that muskrat and beaver fled overland to other areas, while many others froze or could not move around in the water to forage and starved to death. Other species such as wolf and lynx are believed to have moved away from the industrialized areas around the Athabasca River to avoid the disturbance associated with oil and gas development.

A.3.6 SAFETY ISSUES AND RISKS Using the Athabasca River for transportation has become more dangerous during both the summer and winter months due to lower water levels. In the summer, lower water levels have created a maze of sandbars and dangerous channels. In the winter, ice roads and bridges are used for travel but the quality of the ice has noticeably declined in recent years, making winter travel dangerous. There are also safety issues associated with increased access to wilderness areas and traditional lands by non‐aboriginal recreational users. Many of the recreational users do not show an appropriate level of respect for the land, are often found to be violating hunting and fishing regulations, and damaging or destroying ACFN cabins and traditional use areas. There is a perceived unknown risk associated with the contamination of food and water from oil and gas developments. Concern over the perceived increased health risks associated with living downstream of the oil and gas developments is also prevalent among ACFN community members. Sources of fresh water and the health risks associated with eating traditional foods are becoming a concern for many communities, especially in Fort Chipewyan.

A.3.7 TRADITIONAL PLANTS AND MEDICINES

Appendix A ACFN Desktop Study Summary A‐4

The ACFN communities surrounding Lake Athabasca have traditionally collected plants for food and medicine. Many collection sites are beside lakes and rivers and must be accessed by boat and many important plant species rely on water for proper growing conditions. For example: muskeg (cloudberries, pitcher plant, Labrador tea), river valleys, riparian areas and seepages (mint, balsam fir and most of the berries), and lakes and creeks (rat root). Plant collection areas are being restricted as a result of oil and gas developments, making those collection sites along the Athabasca River that can still be used more important. The falling water levels have had an impact on both accessibility and availability of plant species. Entire lakes and river systems are no longer accessible by boat due to low water levels. Plant communities in the PAD and along the shores of Lake Athabasca, Jackfish Lake, and others have changed substantially since the construction of the Bennett Dam, and further water withdrawal for oil sands development is thought to have also affected the various lake and river levels.

A.3.8 GRAVESITES AND OTHER SACRED PLACES There are several gravesites, spiritual sites, and historical sites located mainly at the historic micro‐village sites (associated with the Reserve Lands). The cabins and wilderness areas around the historic micro‐villages are still in use and are considered important places to maintain ACFN traditional culture. Although many people no longer live full‐time in these places, they continue to be used on a seasonal basis (typically for several months in the summer) for the purpose of visiting the graveyards, for family gatherings, weddings, funerals, camping, fishing, and for berry picking. The ACFN see it as a place to escape their lives in town and get back to living off of the land, thus maintaining their spiritual and cultural connections. Some Elders aspire to moving back to living off the land and moving up and down the river with the seasons someday in the traditional way of life. Over time, it is felt that wilderness will not exist anymore and that nothing will be able to be done the way it used to be. Also, the ability to have solitude and to conduct traditional activities in true wilderness is believed to be threatened.

A.4 SUMMARY OF CONCLUSIONS

A.4.1 RIVER FLOWS The ACFN understand that there are natural fluctuations, both seasonal and among years, in the water levels of the Athabasca River and associated lakes and tributaries. However, the ACFN believe that average water levels in the Athabasca River have decreased steadily since the intensification of oil sands development and, in the PAD,

Appendix A ACFN Desktop Study Summary A‐5

since the Bennett Dam was built. They also believe that the quality of the water has dramatically declined. These concerns about the quantity and quality of water in the Athabasca River, its tributaries, and the PAD have already been stated by ACFN elders in the late 1980s as part of the Northern River Basin Study. The desktop study shows that not only are these valid concerns still largely unaddressed, but they have also grown in urgency in light of the apparent increasing rate of industrial development in proximity to the Lower Athabasca River.

A.4.2 LANDSCAPE CHANGE ACFN members and other traditional knowledge holders believed that changes in the Athabasca River occurred predominantly as a result of industrial developments on land such as mining, logging and other disturbances in and around the River and its tributaries. Even as early as the late 1980s, interviews revealed that nearly half of ACFN members believed that the negative changes being observed in the Athabasca River were due solely to oil sands operations. In 1992, traditional users urged for a better management of the land so as to protect the Athabasca River and its tributaries by implementing faster reforestation and more efficient reclamation, amongst other suggestions. Evidence shows that their concerns were not heeded. In fact, MSES analyses of landscape change indicate that, to date, the area of disturbance on land in Segment 4 has approximately tripled since 1992. It is therefore not surprising to learn from the more recent reports listed in Appendix I that the sense of urgency about the effects of landscape‐scale changes on the traditional use of the Athabasca River has intensified.

A.4.3 TRADITIONAL LAND USE TO­DATE ACFN members have noted “survival areas” that need to be protected if animals and traditional ways of life are to survive. They believe if these areas are left undisturbed that wildlife would be able live and avoid human disturbances from the oil sands. All of Segments 1 and 2 are included as “survival areas” as well as sections of the Athabasca River at the northern end of Segment 3. The Clearwater River, Firebag River, Richardson River, and parts of the Athabasca River (upstream of Fort McMurray) are also considered to be key to preservation of traditional ways of life.

ACFN members are concerned with the health of the environment and urge that protection measures be implemented as quickly as possible. They believe that protection measures should focus on the health of the water because they view the rivers as the life‐giving arteries that feed the plants and animals to which they depend upon. It is a common sentiment among ACFN members that “we can have all the oil in the world, without water we are finished”.

Appendix A ACFN Desktop Study Summary A‐6

ACFN members have commented that areas in Segment 1, which includes the PAD, should be protected at all costs. Some ACFN members are hoping to “return home” and base the future of their traditional land use out of their historic micro‐villages associated with the Reserve Lands.

A.4.4 THE FUTURE OF TRADITIONAL LAND USE The rapid rate of landscape scale degradation in Segments 3 and 4 over the past 20 years has been clearly noted by ACFN members. The remaining areas that are considered “still good” are threatened by the northerly growth of industrial development. To‐date there is little evidence that the increasing growth trend in industrial development of the past 20 years will slow in the next 20 years.

We set out to address a number of potential hypotheses about the effects of decreased water levels in the Athabasca River on TLU by the ACFN community. We learned that, if the increasing trend of industrial development continues, the traditional uses associated with the Athabasca River would likely change within less than one generation. We can summarize our findings as follows:

Access to ACFN Traditional Harvesting Resources As travel along the Athabasca River is becoming increasingly dangerous, traditional users will experience greater difficulty accessing areas of high resource value. However, reduced access is not the only problem in the continual decline in harvesting activity along the river. Reduced resource abundance and quality will further diminish the opportunities for successful harvest. Segment 4 is nearly completely inundated by land disturbance and has already experienced a combination of decreased water flows and reduced water quality. Segment 3 is rapidly following the same path and could be reduced to the same condition as Segment 4 within less than one generation. In that time frame, Segment 2 will also be affected. Once this occurs, it is questionable whether the health of Segment 1 can be maintained, even in the absence of further industrial development, because the integrity of the River system in Segment 1 would be drastically affected by developments in all other Segments. Perhaps more importantly, by that time, there may not be sufficient healthy river systems left which the ACFN members accept as “still good” or “survival areas” to maintain the traditional uses and, a collapse of the cultural activities is possible.

Access to Spiritual and Historic Important Areas The access to spiritual and historically important areas will likely suffer a similar fate as the access to harvesting resources. Because travel will be increasingly more difficult and dangerous, and because land disturbance near the river is rapidly increasing, the

Appendix A ACFN Desktop Study Summary A‐7

experience of remoteness that appears to be required to practice spiritual and historically important activities will fade away. ACFN members already noted that Segment 4 and parts of Segment 3 have lost their value as a survival area. Given current trends of disturbance, all of Segment 3 and parts of Segment 2 will lose their value for spiritual activities.

Quality of Traditional Food and Wellness Resources with Consequent Effects on Diet and Health For at least twenty years now, the ACFN members have noted the diminishing health of their traditional foods, particularly the foods in or near the Athabasca River. Given current rates of development in Segments 4 and 3, these concerns will increase in urgency. If water quality and quantity will continue to decline, as a function of more surface runoff, spills and emission exceedances from mines, then all Segments downstream of Fort McMurray will be affected. The decrease in water quality will accelerate in the future, not only as a function of increase industrial activity, but also as a function of lower river flows which contain higher concentration of contaminants than high river flows where large volumes of water can better dilute contaminants. Many ACFN members already noted that they do not eat the fish from certain areas and that other country foods have diminished in taste and quality. The reluctance to eat country food from the river will increase and this will be exacerbated by the diminished access to harvest resources. It is conceivable that traditional resources still remaining in or near the river will completely lose their value to many traditional users.

The Ability to Transfer Traditional Knowledge to Future Generations As a consequence of the above findings, future transfer of knowledge will be jeopardized. This is because access to resources will be more difficult, the quantity and quality of resources will be decrease, and areas where spiritual activities can be practiced without sensory disturbance from industrial activities will be greatly reduced. It can be predicted that future opportunities to transfer traditional knowledge to future generations will vanish from Segments 4 and 3, and will likely be compromised in Segments 2 and 1 within less than one generation.

Appendix A ACFN Desktop Study Summary A‐8

APPENDIX B – MCFN DESKTOP STUDY SUMMARY

B.1 INTRODUCTION TO APPENDIX B This section summarizes the information compiled by MSES about MCFN traditional land use as a result of the desktop study that they conducted. It includes a summary of the information sources reviewed, a summary of results of the relationship of the River to traditional land use, and a summary of conclusions about the impacts of decreased water flows on MCFN.

B.2 INFORMATION SOURCES REVIEWED MSES reviewed the following information sources for the desktop study:  Calliou Group. Mikisew Cree First Nation TLU interview report Total E&P Canada Joslyn North Mine Project. Prepared for the Mikisew Cree First Nation GIR.  Canadian Natural Resources Limited Application. 2003. No. 1273113 Transcripts of the Proceedings At Hearing, September 22, 2003, pages 1179‐1394. The Minister of the Environment, Canada, and The Alberta Energy And Utilities Board  CEMA. 2004. Historical trails research project ‐ Wood Buffalo Regional Municipality, August 2004. Prepared by Points West Heritage Consulting Ltd. And ISL Group Ltd.  CEMA. 2005. Wildlife movement traditional environmental knowledge workshops – wildlife movement in the Regional Municipality of Wood Buffalo, December 2005. Prepared by FMA Heritage Resource Consultants Inc.  Coutu, P.R. and L. Hoffman‐Mercredi. 2002. Inkonze: the Stones of Traditional Knowledge – A Story of the Athabasca Tar Sands. Thunderwoman Enthnographics, Edmonton, Alberta, Canada.  FMA Heritage Resources Consultants Inc. 2007. Traditional ecological knowledge report: Synenco Energy Inc. Northern Lights Oil Sand Development. Prepared for the Mikisew Cree First Nation.  Freeman, H. 1978. Athabasca and Embarras River use. Wood Buffalo National Park.  Fumoleau, R. 2004. As long as this land shall last ‐ a history of Treaty 8 and Treaty II, 1870‐1939. University Calgary Press, Alberta, Canada.  McCormack, P.A and R.G. Ironside (Editors). 1993. The uncovered past: roots of Northern Alberta Societies. Circumpolar Research Series Number 3. Canadian Circumpolar Institute, University of Alberta, Canada.

Appendix B MCFN Desktop Study Summary B‐1

 Mikisew Cree First Nation. 2006. Submission for intervention re: Kearl Oil Sands Project supplemental materials. Submitted by Prowse Chowne LLP.  Mikisew Council and the Traditional Land Use Committee. Ayapaskowinowak: Ta Kiskissotamak Kayas Pimatisowin Oti Nikan Kichi (Acknowledging the Past, Securing the Future – Traditional Land Use of the Mikisew Cree First Nation).  PACTeam Canada Inc. 2007. Report on the southern territory use and occupancy mapping project. Prepared for the Mikisew Cree First Nation.

B.3 SUMMARY OF RESULTS

B.3.1 ACCESS The Athabasca River and tributaries are a travel route and access to trail networks used by MCFN for hunting, camping, fishing, trapping, and harvesting berries and medicines. In the summer a boat could be used and in winter, trails along banks of tributaries or on the Athabasca River would be used for dog sleds. MCFN is concerned about increasing restrictions on access. Today access between the river, tributaries and adjacent upland areas is affected negatively by the locations of oil and gas developments. Access to remaining harvesting areas along the river is further reduced as a result of declining water levels which make boat travel difficult in summer and winter travel dangerous due to poor ice quality and thinness. In addition to the physical placement of oil and gas developments and associated facilities, population growth and increased traffic in the region is a primary driver of negative effects to MCFN members ability to access their traditional lands and harvesting areas. Increased traffic, increased recreational use, and increased presence of non‐ aboriginal recreational users restrict places where traditional activities can occur and impact wildlife presence and abundance. As a result, many community members must travel longer and farther to harvest resources.

B.3.2 HUNTING Important species hunted by MCFN include moose, bear, bison and caribou as well as waterfowl. Moose and bear have been harvested around the PAD and south along the Athabasca River while caribou were generally harvested around the Lake Athabasca area. Bears were harvested and moved seasonally with food resources (such as berries and spawning fish) along the rivers in the summer and fall. Moose are an important staple in the diet and their habitat was tied to the Athabasca River, its tributaries, and the PAD in summer as they prefer habitat close to rivers, creeks, sloughs and lakes. Moose can also be found in muskeg areas or in willow and poplar habitat. In the past, caribou were found

Appendix B MCFN Desktop Study Summary B‐2

to the west of the Athabasca River around Fort Chipewyan lakes, around Birch Mountains and Embarras River. Waterfowl were hunted in the spring and fall from boats in the river, on the PAD, and Lake Athabasca. On average, a typical family might harvest 50 ducks and 50 geese in the spring. Although the Athabasca River is still used by MCFN for traditional hunting, there have been major changes to the locations where this occurs, as well as the success of the hunts and the condition of the animals. These changes are attributed by MCFN Elders to several factors including reduced river flows, an influx of non‐Aboriginal hunters, and increased difficulty of travel along the Athabasca River and tributaries. Some current hunting and trapping areas include the area of the Birch Mountains and Birch Mountain Wildland Provincial Park, areas in the north around Birch River and Fort Chipewyan, areas just west of Fort McMurray and east along the Clearwater River as well as an area around McClelland Lake and Susan Lake just east of Fort McKay.

B.3.3 FISHING Fishing provided another traditional food for MCFN, and an important resource to sustain trapping activities (as fish were used for bait and for sled dog feed). Community members fished along the Athabasca River, lakes and tributaries largely during the summer season, moving in‐land during the winter season. Fishing occurred throughout the year. Key fish species for MCFN include jackfish, whitefish, goldeye, pike, pickerel and walleye. According to MCFN Elders, many of the traditional fishing areas are no longer useable because of changes to water flows (quantity) and heavy pollution (quality). The water level has experienced a dramatic decline in recent years making it difficult or impossible to use boats to fish, both along the Athabasca and associated tributaries. These declining water levels in the smaller lakes and streams are of concern for the over‐wintering survival of fish because they could be at risk of freezing solid (and killing fish) in the winter. It is believed that the waters have become polluted since the oil sands mines went in during the 1980s. Many people are scared of eating fish from the Athabasca River because of fears about contamination.

B.3.4 BOATING AND TRAVEL The Athabasca River and its tributaries have been the main transportation and trade routes for MCFN for both summer and winter travel. During the summer, the main travel routes were by water since much of the surrounding country is muskeg and thick brush, and traversing that landscape in summer was (and continues to be) very difficult. During winter, dog sled trails often followed the banks of rivers for navigation purposes. In the past, the Athabasca River was often used as transportation between Fort Chipewyan to Fort McMurray. The Firebag River, Muskeg River, MacKay River, Steepbank River and

Appendix B MCFN Desktop Study Summary B‐3

smaller creeks were also important as shortcuts to travel between fishing, hunting, and trapping sites. Water levels are now believed to be very low compared to historic levels. Members have noted that the low water levels has caused an increase in sandbars along the river and tributaries and also caused changes to the vegetation surrounding the river banks. In addition, snowmobiling along the Athabasca River in the winter is becoming dangerous because the fluctuating water levels cause irregular ice. MCFN are concerned that they can no longer rely on any of the rivers for transportation in any season because of lower water levels. Low water levels are also contributing to an increase in the cost of food and supplies in Fort Chipewyan.

B.3.5 TRAPPING Trapping was an integral part of life for MCFN; it provided food, clothing, and a source of income during the fur trade. Wolves, lynx, fisher, and marten were trapped on land for furs while muskrat, beaver, mink, and otter were semi‐aquatic species that were trapped on the PAD and surrounding marshes and lakes for pelts. Fine fur trapping would occur during the spring and winter but spring was particularly important for harvesting muskrat and beaver. Men would travel by boat on the Athabasca River to set up camps close to trapping areas such as Lake Claire and the PAD. Muskrat populations depend on cycles of floods and dry years, and the usual big spring floods are not believed to occur anymore. With lower water levels, many smaller lakes, sloughs, and marshes dried‐up altogether or froze to the bottom in fall and winter. It is believed that muskrat and beaver fled overland to other areas, while many others froze or could not move around in the water to forage and starved to death. It is believed that the construction of the Bennett Dam in British Columbia may have contributed to the decline in muskrats because the dam hinders flooding of the PAD which reduces the habitat available to support muskrats.

B.3.6 SAFETY ISSUES AND RISKS Using the Athabasca River for transportation has become more dangerous during both the summer and winter months due to lower water levels. In the summer, lower water levels have created a maze of sandbars and dangerous channels. Low water levels in the Athabasca River contribute to declines in water flowing into the smaller waterways and lakes associated with the Athabasca River. Low water levels have been noted in Lake Claire, Lake Mamawi, Galoot Lake, Baril Lake and Jackfish Lake. In the winter, the frozen waterways are used as ice roads and bridges for travel but the quality of the ice has noticeably declined in recent years, making winter travel dangerous.

Appendix B MCFN Desktop Study Summary B‐4

There are also safety issues associated with increased access to wilderness areas and traditional lands by non‐aboriginal recreational users. Many of the recreational users do not show an appropriate level of respect for the land, are often found to be violating hunting and fishing regulations, and damaging or destroying MCFN cabins and traditional use areas. There is a perceived unknown risk associated with the contamination of food and water from oil and gas developments. Concern over the perceived increased health risks associated with living downstream of the oil and gas developments is also prevalent among MCFN community members. Sources of fresh water and the health risks associated with eating traditional foods are becoming a concern for many communities, especially in Fort Chipewyan.

B.3.7 TRADITIONAL PLANTS AND MEDICINES Most plants traditionally collected for food and medicine were harvested beside lakes and rivers and must be accessed by boat. Many people still travel long distances along the river to access prime collection sites. Many collection areas are highly constrained by development and many plant harvesters who live in Fort McMurray and Fort McKay now have to travel further to the Fort Chipewyan area in the north, east towards Saskatchewan or south to the area around Wandering River. Falling water levels along the Athabasca River has had an impact on both accessibility and availability of plant species. Entire lakes and river systems are no longer accessible by boat due to low water levels. Plant communities in the PAD and along the lake shores have changed substantially since the construction of the Bennett Dam and water withdrawal for oil sands development. Some members believe that the potency of some of the medicinal plants is being affected by the lack of water in areas where they are growing.

B.3.8 GRAVESITES AND IMPORTANT PLACES A number of MCFN burial sites may be found along the creeks and rivers close to Fort McKay and elsewhere in their traditional territory such as at Namur and Gardiner Lakes. Additionally, camps and cabins are considered important places to maintain MCFN traditional culture. Although many people no longer live full‐time in these places, they continue to be used on a seasonal basis for the purpose of visiting the graveyards, for family gatherings, weddings, funerals, camping, fishing, and for berry picking.

Appendix B MCFN Desktop Study Summary B‐5

The expanding industrial development and population growth, there are concerns that there will no longer be any true wilderness areas where they can carry on their traditional activities. The ability to have solitude and to conduct traditional activities in true wilderness is believed to be threatened.

B.4 SUMMARY OF CONCLUSIONS

B.4.1 RIVER FLOWS MCFN members say that average water levels in the Athabasca River have decreased steadily since the intensification of oil sands development and, in the PAD, since the Bennett Dam was built. They also say that the quality of the water has dramatically declined. These concerns about the quantity and quality of water in the Athabasca River, its tributaries, and the PAD were stated by MCFN elders in the late 1980s (Alberta Environment 1988). Our analyses show that not only are these valid concerns still largely unaddressed, but they have also grown in urgency in light of the apparent increasing rate of industrial development in proximity to the Lower Athabasca River.

B.4.2 LANDSCAPE CHANGE MCFN members believe that changes in the Athabasca River occurred predominantly as a result of industrial developments on land such as mining, logging and other disturbances in and around the River and its tributaries. Even as early as the late 1980s, interviews revealed that nearly half of MCFN members believed that the negative changes being observed in the Athabasca River were due solely to oil sands operations. In 1992, traditional users urged for a better management of the land so as to protect the Athabasca River and its tributaries by implementing faster reforestation and more efficient reclamation, amongst other suggestions. Evidence shows that their concerns were not heeded. Analyses by MSES of landscape change (Appendix D) indicate that, to date, the area of disturbance on land in Segment 4 has approximately tripled since 1992. More recent studies reviewed for MCFN show that the sense of urgency about the effects of landscape‐scale changes on the traditional use of the Athabasca River has intensified.

B.4.3 TRADITIONAL LAND USE TO­DATE Some MCFN members have noted areas that need to be protected if animals and traditional ways of life are to survive. These areas included the Birch Mountains, Gardiner and Namur Lakes and the area north of Poplar Point up to and including the Athabasca Lake and PAD (Segments 1, 2 and 3).

Appendix B MCFN Desktop Study Summary B‐6

MCFN members are concerned with the health of the environment and urge that protection measures be implemented as quickly as possible. They believe that protection measures should focus on the health of the water because they view the rivers as the life‐giving arteries that feed the plants and animals to which they depend upon.

B.4.4 THE FUTURE OF TRADITIONAL LAND USE The rapid rate of landscape scale degradation in Segments 3 and 4 over the past 20 years has been clearly noted by MCFN members. There is concern that the remaining areas in Segments 1 and 2 are already feeling the effects from the intensive industrial development upstream and any industrial expansion northward will seriously threaten the environmental integrity of the area. To‐date there is little evidence that the increasing growth trend in industrial development of the past 20 years will slow in the next 20 years. We set out to address a number of potential hypotheses about the effects of decreased water levels in the Athabasca River on TLU by the MCFN community. We learned that, if the increasing trend of industrial development continues, the traditional uses associated with the Athabasca River would likely change within less than one generation. We can summarize our findings as follows: Access to Mikisew Cree Traditional Harvesting Resources As travel along the Athabasca River is becoming increasingly dangerous, traditional users will experience greater difficulty accessing areas of high resource value. However, reduced access is not the only problem in the continual decline in harvesting activity along the river. Reduced resource abundance and quality will further diminish the opportunities for successful harvest. Segment 4 is nearly completely inundated by land disturbance and has already experienced a combination of decreased water flows and reduced water quality. Segment 3 is rapidly following the same path and could be reduced to the same condition as Segment 4 within less than one generation. In that time frame, Segment 2 will also be affected. Once this occurs, it is questionable whether the health of Segment 1 can be maintained, even in the absence of further industrial development, because the integrity of the River system in Segment 1 would be drastically affected by developments in all other Segments. Perhaps more importantly, by that time, there may not be sufficient healthy river systems left which the MCFN members could maintain their traditional uses and a collapse of the cultural activities is possible. Access to Spiritual and Historic Important Areas The access to spiritual and historically important areas will likely suffer a similar fate as the access to harvesting resources. Because travel will be increasingly more difficult and

Appendix B MCFN Desktop Study Summary B‐7

dangerous, and because land disturbance near the river is rapidly increasing, the experience of remoteness that appears to be required to practice spiritual and historically important activities will fade away. Quality of Traditional Food and Wellness Resources with Consequent Effects on Diet and Health For at least 20 years now, MCFN members have noted the diminishing health of their traditional foods, particularly the foods in or near the Athabasca River. Given current rates of development in Segments 4 and 3, these concerns will increase in urgency. If water quality and quantity will continue to decline, as a function of more surface runoff, spills and emission exceedances from mines, then all Segments downstream of Fort McMurray will be affected. The decrease in water quality will accelerate in the future, not only as a function of increase industrial activity, but also as a function of lower river flows which contain higher concentration of contaminants than high river flows where large volumes of water can better dilute contaminants. Many MCFN members already noted that they do not eat the fish from certain areas and that other country foods have diminished in taste and quality. The reluctance to eat country food from the river will increase and this will be exacerbated by the diminished access to harvest resources. It is conceivable that traditional resources still remaining in or near the river, will completely lose their value to many traditional users. The Ability to Transfer Traditional Knowledge to Future Generations As a consequence of the above findings, future transfer of knowledge will be jeopardized. This is because access to resources will be more difficult, the quantity and quality of resources will be decrease, and areas where spiritual activities can be practiced without sensory disturbance from industrial activities will be greatly reduced. It can be predicted that future opportunities to transfer traditional knowledge to future generations will vanish from Segments 4 and 3, and will likely be compromised in Segments 2 and 1 within less than one generation.

Appendix B MCFN Desktop Study Summary B‐8

APPENDIX C – COMMUNITY ENGAGEMENT SUMMARY

C.1 Community Engagement Sessions: Issues of Concern Summary

The Community Engagement sessions served to highlight key issues of concern associated the actual and possible impacts to the rights and traditional uses of ACFN and MCFN. For the most part, specific locations of activities were not provided by participants in the community engagement sessions and would need to be included in the scope of any future detailed study. Issues of concern obtained during the community engagement session are summarized according to the four primary themes explained below. 1. Ecology of the River and Peace Athabasca Delta Participants of the sessions brought forward issues of concern about changes they have observed in their lifetimes to the ecology of the Athabasca River and to the Peace Athabasca Delta (PAD). A key issue that emerged is the possibility to magnify changes already observed, and induce further changes, to the PAD, the ecology of which is closely linked to the Athabasca River. 2. Land and Resource Use In addition to ecological observations, participants shared information about specific uses of the Athabasca River, use of resources obtained from the River, and about other land and resource use that is dependent on the ecology of River and/or on the specific uses of the River. They also shared information about impacts already experienced to those uses as a result of declining water quantity and quality in the Athabasca River. Three key issues emerged: concerns about impacts to the use of the Athabasca River for travel and access, especially during summer months; concerns about the quality and safety of the water in the Athabasca River (and the relationship of that to other key resources); and, concerns about disruptions to access and travel within the Peace Athabasca Delta. 3. Treaty Rights, Culture and Livelihood There was a variety of information and concerns expressed about the relationship between land, water, sense of place and cultural survival; risks to cultural survival, and the need to develop a rights‐based In‐stream Flow Need that is based on minimum flows required to sustain Treaty Rights.

Appendix C Community Engagement Summary C‐1

The specific issues of concern shared by participants are summarized in Table 1. Although identification of themes and organization of information according to those themes requires some analysis, for the most part, no analysis or interpretation of the information is provided here. The analysis, identification of impacts and explanations of significance is retained for the summary report. Please note that these tables do not represent an exhaustive list of all issues of concern that MCFN and ACFN may have in respect to ecological changes related to the Athabasca River water flows. Participants of both sessions expressed that they would like to speak with a united voice, as they felt that these issues of concern are common to the Community of people whose traditional livelihood and culture is closely linked to the River and the Delta. Therefore, the information is not coded according to First Nation (MCFN and ACFN). In addition, participants stated that their information cannot be used unless a verification meeting is held with all participants.

Table 1 – Issues of Concern Expressed During Community Engagement Sessions

THEME INFORMATION SHARED

Ecological Issues of Concern

Water Levels in Athabasca  In the past, it was not common to hit sandbars. River  In the past, water levels seemed more stable.  Water fluctuations seem to occur more frequently now.  The River “dropped” after the Bennett Dam was put in.  The water levels north of Ft. McMurray have dropped more than those south of Ft. McMurray. Air Quality  Since development of oil sands began with Suncor (GCOS), people “started to smell that stink smell of rotten eggs.”  “[Her] asthma is ok at Poplar Point but not at Fort McKay.” Channels of Flow in the  The old channel is still present in front of Suncor and Syncrude and Athabasca River been there for fifty years.  North (downstream) of Suncor and Syncrude, the river level drops and by the time you get up to CNRL Horizon, it is just sand, no original channels exist north of Suncor and Syncrude Beaver  Beaver dams hold water back in the surface hydrology system.  “If it wasn’t for beavers we wouldn’t have any water.” Continued on next page…

Appendix C Community Engagement Summary C‐2

THEME INFORMATION SHARED

Ecological Issues of Concern (continued)

Seasonal flow fluctuations  Water levels in the Athabasca River naturally are at a lower flow at in Athabasca River the end of September when freeze‐up starts.  Flow is now starting to decrease by mid‐August, which is earlier than

it used to. Sandbars  Sand bars are exposed when water is low.  Sand bars create dangerous conditions for winter travel on snowmobiles and increase difficulty and danger of travel in summer by boat.  Sand bars can inhibit access along banks in the summer because it is difficult or impossible to get a boat to shore (or to get the boat back “on step” when leaving shore).  Sand bars can impact ability to fish in some areas.  There are more sandbars now than there used to be. Open Water in Winter  Shallow water flows more quickly. In the winter, ice is pushed down by snow, putting it into contact with the water. The fast water melts the ice, creating open water.  Open water creates more dangerous conditions for travelling on the river during winter. Water Quality  There are eighteen pulp mills along the Athabasca River, as well as farming activities that result in pesticides getting in the river.  In the late 1970s, early 1980s, began to see an oily film on winter ice and in cups and pails  Concern that muskrat deaths are an indicator of poor water quality (“If muskrats can’t survive, should we be using the water?”) Ice  Big ice jams occur when the ice is solid and water flows are fast.  Ice jams used to be about 10‐12 feet high.

 The last big flood from ice jams was in 1974. The ice then was around six feet thick.  In 1974, the ice was around four to five feet thick. Now, today it is “lucky” if there is two feet of ice on the river.  Today, there are only little ice jams in the spring, because the ice just “rots away” because the water flows does not have sufficient force to jam the ice.  In the 1980s began to see an oily film on the ice. Continued on next page…

Appendix C Community Engagement Summary C‐3

THEME INFORMATION SHARED

Ecological Issues of Concern (continued)

Spring Floods in Peace  Spring flood water refreshes Peace‐Athabasca Delta (PAD) lakes and Athabasca Delta perched basins.  Spring floods occur from ice jams.  Good quality muskrat habitat is linked to these big floods. The quality of the muskrat habitat is linked not only to quantity of water, but to the quality of the water.  Trappers in the Delta used to have to build stages so that their tents would be protected from flooding.  The last big flood from ice jams was in 1974. The ice then was around 6 feet thick. Muskrats  The Athabasca River sustains muskrat habitat in the PAD.  When there is lots of water, there are lots of muskrats.  If water levels are too low, muskrats can freeze to death.  Muskrat kill‐offs may also be associated with “stagnant” and/or polluted water.  Muskrat populations have declined since the 1980s.  In 1988 there was a large muskrat kill‐off at Egg Lake and Frezie Lake, the water levels of which are fed by the Athabasca River. Muskrats, however, were able to survive in a small slough that is fed by inland drainage (not by Athabasca River).  Hilda Lake was once good muskrat habitat, but now it is too dry.  A study should be done comparing muskrat populations in waterbodies in PAD that are fed by Athabasca River compared to waterbodies in PAD that have other water sources. Fish  There used to be lots of good fish in the River [specific species and population estimates not noted]  In 1985 there were pickerel at Embarrass and now there are hardly any.  Sand bars inhibit ability to fish in some areas now [specific areas not identified.]  The fish only use the river as a “highway” in the spring to get to lakes and other rivers because “they don’t have habitat in the River, they don’t want to live in the water.”  At different types of year there are runs of different types of fish [specific times of year and specific species not noted]  Whitefish and burbot use the river all winter because they lay eggs by Grand Rapids (these fish were obtained there traditionally “all winter long”). If water levels are reduced, spawning grounds will be destroyed. “If the river dries up where will they spawn?” Continued on next page…

Appendix C Community Engagement Summary C‐4

THEME INFORMATION SHARED

Ecological Issues of Concern (continued)

Water Quantity and the  Water levels in Egg Lake depend on spring floods. Peace‐Athabasca Delta  There is a relationship between water levels in tributaries of the Athabasca River and water levels in the Athabasca River. Not only does the Athabasca River level depend on water levels in tributaries, but levels of water in the tributaries also depend on water levels in the River. When the river is lower, streams flow into the river. When the river is higher, the water can flow the other way.  Hilda Lake has dried up so much at there was a fire there last year [exact date needs to be verified]  The common thistle, which indicates warm, dry conditions, is taking over the PAD. The north side of Lake Claire is covered with it. Nothing eats this grass.  Changes observed to muskrat populations attributed to lower water levels and water quality issues.  The high water mark is now 3 metres (or nine feet) below where it used to be (measured at Monument Hill and at Grew Caps [spelling/place needs verification]).  At Little Rapids (near Roche River), there is only about a foot of water. The water level is dropping a lot.  When the Athabasca River went down rapidly [need to confirm when that was], it affected a lot of other water bodies like Embarras River and Fletcher Channel.  Rivers and back channels in the PAD are getting narrower and lakes are growing in the grass and mud. This is making access to some areas by boat more difficult [specific areas not noted].  Concern that the Site C Dam on the Peace River and reduced flows in Athabasca River will lead to situation where the whole Delta is “dry.” Perched Basins and Lakes  Perched basins are refreshed through spring floods and high water in the PAD conditions that reverse flow (from river, up tributaries and into basins).  When Bennett Dam was developed in the 1960s, entire perched basins went dry (because flows of Peace River stopped as Dam as filled).  Willow and poplar growth is taking over perched lakes that used to be good muskrat habitat (e.g., Gull Lake).  Concern that in another 50 years, the Delta will be smaller and that in another 100 years, there will be no Delta.  Need to consider impacts to PAD as a result of lower water flows in Athabasca River. This analysis needs to take Peace River into account as well.

Appendix C Community Engagement Summary C‐5

THEME INFORMATION SHARED

Land and Resource Use

Use of the Athabasca  People use the River to travel to Ft. McMurray to buy groceries and River for Travel and supplies to bring back to Ft. Chipewyan (where goods are expensive Access in the Summer due to being freighted in by air).  People used to travel right down to the Snye in Fort McMurray but you cannot do that today.  Some people who will not travel by air can only get out of Ft. Chipewyan by boat in the summer (or by winter road after freeze‐ up).  Some places are not accessible at low flows due to mud flats along the shore.  When you travel to Ft. McMurray now there are some places where you have to push your boat because there is no water.  Travel is restricted to experienced users because it is more difficult to navigate the sandbars, and you have to know how to read the channels. Less experienced River travellers are using the river less because they don’t know where the channels are and don’t know how to read the water.  Travel time increases when the water is lower because you are restricted to following the channel (which zig‐zags back and forth increasing distance that you have to travel). You can see old shortcuts that you used to be able to use, but cannot now because it is “too big of a risk”, you get maybe a 4 metre channel to go through, with maybe only 2 feet of water in the channel.  The water has gone down a lot and there are more sandbars now than there used to be twenty to thirty years ago. Sandbars block access to certain places and make river travel more dangerous.  It is getting too hard to travel and travel time is increasing.  It is now difficult to travel the river with a small boat with an outboard motor. Jet boat is now the “best way” to travel. Not everyone has a jet boat.  People expressed concern that their ability travel the river by boat will be completely destroyed within the next twenty years: “At this rate in another 20 years, we won’t even be able to canoe down the river.” “In the next 20 years, we will be using quads in the river.” But, even if there is no water in the river, “we will still be using the River somehow.” Continued on next page…

Appendix C Community Engagement Summary C‐6

THEME INFORMATION SHARED

Land and Resource Use (continued)

Use of the River for Travel  In the past, the river was used as a travel corridor in the winter time. and Access in the Winter People travelled by dog team and then by skidoo.  Fast, shallow water does not always freeze and you get large, open

holes in the ice making winter travel with snowmobile dangerous.  Exposed sand bars are hazardous for snowmobiles.  More hazards restricts travel to experts. Access to Cabins  Participants noted that changes to the River and water levels in the Delta have impacted ability to access cabins which were once accessible via water routes. [Specific locations of cabins were not mapped; further investigation required.] Travel and Access in the  Boating access in Wood Buffalo Park is now restricted. Peace Athabasca Delta  Lately there have been sand bars on the Embarras and you cannot travel on it.  Lake Mamawi is very shallow now and it never used to be in the past.  Over the last 20 years, some of the back channels are getting narrower, lakes are growing in more with grass, and you can’t get in some places by boat.  You used to be able to paddle up the snyes, but now you can’t because they are all grown in. Use of the River to  There used to be barges and steamboats that travelled the River Transport Food and between Ft. McMurray and Ft. Chipewyan. In 1949, they started Supplies to Ft. Chipewyan dredging the river at the mouth of the Athabasca from May to September, and between the Embarras River and Ft. McMurray. At that time there were about 18 tugboats that used the river, and all freight to Ft. Chipewyan was brought in by barge.  The River was dredged to keep it open for the barges. It cost between four to five million dollars to dredge the river each year. After the winter road was opened up, they couldn’t justify keeping the river open for barges and they quit dredging the river.  Barging made food cheaper. Now that food is flown in, it is more expensive (like $5 for a loaf of bread).  A small barging company to service Ft. Chip from Shell Landing is still in operation. The water was high enough about a month ago (beginning of August) to make two trips to McMurray. About five days ago, the barge couldn’t make it because the water was too low.  People from Ft. Chipewyan often travel by boat to Ft. McMurray in the summer time to pick up supplies and food (to avoid air freight costs and mark‐ups). Continued on next page…

Appendix C Community Engagement Summary C‐7

THEME INFORMATION SHARED

Land and Resource Use (continued)

River Community –  There used to be a lot of people that lived along the river, especially Network of Support trappers. In the 1950s, there were Cree, Dene and Metis trappers all along the river. People used to live two‐three miles, or less, apart.  When you travel along the river, you stop and visit the people that live along it.  It is important to have a community of people that use the river, because they help each other out. When you live alone, “it is important to see people for your sanity.” As well, “you can pick up knowledge from people along the river” and you help each other out.  Today there is “hardly anyone” living along the river, and travelling the river. Having less people living along or travelling the river makes it more difficult for those people that continue to do so because there is a smaller support network. “Now, if you need help or information, you are hard up because you don’t have anyone to speak with, no Elder nearby to chat with.” Fishing and Fish  Athabasca River was traditionally used for fishing for human Consumption consumption and for fish to feed dog teams. Some people still fish from the River, while others consider it too “risky” and will not eat the fish from the River anymore.  Participants that no longer fish from the River noted that they have to travel to inland lakes to obtain fish. What were once good fishing lakes on the east side of the Athabasca River (e.g. Peerless Lake) have been fished out by sports fishers. There are still some good lakes on the west side of the Athabasca River; these lakes are remote and difficult to reach.  Whitefish and burbot spawning grounds at Grand Rapids were fished all winter long. Continued on next page…

Appendix C Community Engagement Summary C‐8

THEME INFORMATION SHARED

Land and Resource Use (continued)

Drinking and Domestic  The Athabasca River once was the primary source of drinking and Uses of Water from wash water for the people who travelled it and lived along it. Athabasca River  Before the advent of development (oil and gas development and pulp mills along Athabasca River), the people of Ft. Chipewyan used to take water directly from the Channel for drinking water and household use.  “The most important change to the river is the quality of the water, we drank river water, washed and cooked with it, now you have to lug water from town to go out on the land, things have to stop somewhere.”  The water treatment plant uses chlorine, which tastes bad. Some participants say they cannot drink it. One participant says that he collects drinking water from Dorey Lake, which he accesses via quad.  It is important for there to be safe drinking water present on the land because when you travel on the land to hunt, trap and fish, it is not always possible to predict what your water requirements will be, and it is not necessarily even possible to bring enough water with you.  You now have to “haul water with you everywhere you go”.  One participant said that his cabin is right on the River and obtaining clean, safe drinking water is a constant struggle and can be expensive (time and money). He either has to travel to other drinking water sources (either by boat or by quad) or has to bring water from town. He does not go to town often (because of the expense and because he does not currently have a boat or a truck). He does have a quad, but a quad does not allow room to transport a large enough supply of water to support his domestic needs. He does not have the money to purchase water treatment equipment.  The participant who lives on the River also said that they cannot use the Athabasca Rive water for bathing because he, and others, have got “itchy bumps” on their bodies and “scabs and puss sores on their eyes” from bathing in the water. Now, he obtains his bathing water (and drinking water) from a creek that is approximately 3.5 km from his cabin. He has no vehicle, but just recently got a quad. Before that he had to walk. He still uses the River water for his garden. Access via Athabasca  The Athabasca River is used to access clean drinking and wash water River to Drinking Water sources (tributaries of the Athabasca River). When water flows are Sources low, access to these drinking water sources can be blocked by mud flats. [Specific locations were not recorded. Requires further study.] Continued on next page…

Appendix C Community Engagement Summary C‐9

THEME INFORMATION SHARED

Land and Resource Use (continued)

Water Quality and  Concern that produce from gardens watered from the River could Contaminants in Food contain contaminants.  Concern that moose meat may contain contaminants because moose drink water from the Athabasca River. Water Intake Facilities  Water intake facilities can create a current that is felt by boaters: “by CNRL there is such a big water intake that you can feel your boat get pulled and Imperial is supposed to be building another intake” Ecotourism Opportunities  One participant used to host ecotourism trips on the River and point out cabins along the river; now, he “just points out industrial development.” Treaty Rights, Culture and Livelihood

Treaty Rights  “Treaty Rights are affected anytime I can’t travel on the river, if I can’t hunt and can’t fish then Treaty Rights are broken.”  “We should have the right to access our way of life, hunting, trapping, etc. Water withdrawals are infringing on our treaty rights. We pay $2.50 for a bottle of water here and they can withdraw 4m3/sec of water without consultation for free! Where’s the fairness in that! What’s the next step, there must be some action we can take.”  “Taking away the land is like taking away the rights. If you take that land away, what can we show our families? Shouldn’t we have some rights?”  “It is not about water levels but about Treaty Rights.” Continued on next page

Appendix C Community Engagement Summary C‐10

THEME INFORMATION SHARED

Treaty Rights, Culture and Livelihood (continued)

The Land is Integral to  One participant noted that trapping costs more money than it makes. Cultural Survival The reason why he traps is not for the money, but because that is how he was raised. It’s his heritage. He wants to show his kids the old ways “so they can live off the land if they had to.”  “This land is our ‘pride land’, this is where everyone goes to hunt, might as well tell the people they can’t be Indian anymore, there is not land.”  “It makes me feel like I am losing my heritage, that is what I know best, they are fucking up my life, 10 more years until Shell is on my land, how will I tell the kids we can’t live off the land anymore, nations need to come together and protect the land.”  There needs to be some limits and boundaries on development, or “the only areas that will be left are Parks and wildlife preserves, and you can’t hunt there.” To the “north is nothing but rock and muskeg”  “It would be a good start to put a circle [i.e. protected area]around our cabins.” Sense of Place  “All of our lives, and our parents and grandparents lives were spent building and maintain these trails and places [on the trapline]. They are hand cut and we can’t just pick up and move. Industry can destroy 30 years of trails in 3 minutes and question why we are there!”  “My relatives are buried there.”  “Seeing lights at night makes you feel like they are coming, I am a rich man at Poplar Point, lots of stars, there are no stars in Fort McKay.”  “Unless you put it back the way it was it was not reclaimed, [they] leave a mess behind.” Water is Integral to  “We need water to sustain our livelihood.” Cultural Survival  “Water is not a commodity to exploit. It is our very survival, our livelihood. We still need water for the next seven generations.”  “Everything comes from the River” Continued on next page…

Appendix C Community Engagement Summary C‐11

THEME INFORMATION SHARED

Treaty Rights, Culture and Livelihood (continued)

Rights‐based In‐stream  Participants expressed concern that the in‐stream flow number was Flow Need set without consultation with the people of Ft. Chipewyan and that the threshold for sustaining traditional use (and practice of rights) has been exceeded.  In 2006, the First Nations (MCFN and ACFN) worked Owith DF to develop an In‐stream Flow Need (IFN) recommendation that was tabled at CEMA. Industry rejected the IFN, which was then amended to be more favourable to Industry.  Concern was expressed that it is the responsibility of the Department of Fisheries and oceans to protect the Athabasca River, but DFO “does nothing” and has “backed down” to Industry interests at CEMA.  The IFN must look at impacts on the Peace‐Athabasca Delta and must take the proposed Site C Dam (in British Columbia on the Peace River) into account in their analyses.  The IFN should only be a minimum because it reflects only fish health. Treaty Rights would include that, but other things as well. There is a need to come up with a recommendation based on the minimum flow required to sustain Treaty Rights on the Athabasca River. Changing Livelihoods  In the past, you could make enough money in one trapping season to and Cultural Survival buy supplies for a while year. One lynx pelt was worth $1500.  Traditional livelihood is more highly valued than the jobs that people take in the oil and gas industry: “It is hard not to work for industry because you need to support your family” but, “I feel like I am enabling development” and “I would be proud if my kids knew what my uncle did, he was a true trapper.”  Increasing ties between the economies of individual First Nations and the oil and gas industry is putting the autonomy, governance and cultural survival of the First Nations at risk: “Industry threatens to pull out of contracts if we speak the truth. How do we find balance? We want people to continue to be able to work, have jobs, but at what cost? If we continue to do business with Industry, do we just let the rest go? If we fight for the land, do we lose work? APCA is coming to an end because Industry wants to negotiate with each band individually... We’re trying to fight for our concerns, but they’re pushing us.”

Appendix C Community Engagement Summary C‐12

APPENDIX D – STREAMFLOW AND LANDSCAPE COVER ANALYSIS REPORT PREPARED BY MSES

(Note: The following report was taken directly from the draft study report that was provided to ACFN and MCFN by MSES. No amendments or revisions have been made to it. Figure and page numbers are the same as in the original and have not been edited to correspond to the numbering system used in this Summary Report.)

Appendix D MSES Streamflow and Landcover Analysis D‐1

TLU Mapping of the Lower Athabasca River October 2009

1.0 Introduction In the mid 1990s, aside of providing a comprehensive review of biophysical conditions and trends, the Northern River Basin Study used traditional knowledge of First Nations and Aboriginal to illustrate the observations of people most familiar with the rivers. First Nations people observed that water levels across the basins seemed to have dropped and that many of the small water bodies dried up (Northern River Basin Study 1996). Some rivers no longer scoured sediment deposits downstream, shoreline access was said to be increasingly difficult, and sand bars formed more frequently. Traditional knowledge holders believed that these changes were caused by instream flow alterations, and by activities on land such as mining, logging and other industrial disturbances in and around the basins. In support of these observations, western scientists and authors of the Northern River Basin Study agree that land clearing includes some or all of these hydrologic impacts on rivers (Northern River Basin Study 1994):

 “changes to water tables and water retention capacity of soil;  slow recovery of evapotranspiration processes;  changes in the capacity of peat lands to store water;  reduction in the size and number of wetlands;  potential for increased flows causing degradation of rivers and streams at some locations and aggregation of rivers and stream beds at other locations;  decreased stream gradients;  low nutrient soil environments; and  changes to sediment levels, water yield, water temperature, and aquatic biota. “

MSES has conducted a historical analysis of river flows using seasonal and yearly water level data, hydrological and climatological data, rate of change in industrial development data, and water abstractions data. This review is meant to act as a tool in facilitating the mapping of traditional land use activities along the Lower Athabasca River.

This technical review focuses on streamflow analyses, including trend analysis and future predictions, water pollution levels, and land cover changes and their effects on water quality, water flow, and ecosystem shifts. The information is summarized below in Sections 2.0 and 3.0 and will assist in developing research questions to evaluate the impacts of altering in-stream flow in the Athabasca River on First Nation communities. Other phases of this review include a desktop traditional land use (TLU) study and community engagement sessions held between Management and Solutions in Environmental Science (MSES) and the First Nations to receive input from communities regarding the findings of this report and the desktop TLU study. These reviews have been reconciled with the information that is summarized in this report and used to analyze the effects of river flows in isolation and in combination with the landscape scale changes on the traditional land use of the Lower Athabasca River.

Appendix D MSES Streamflow and Landcover Analysis D‐2

TLU Mapping of the Lower Athabasca River October 2009

1.2 Project Goals and Objectives This technical report is meant to be the next step towards completing a detailed instream flow needs assessment of the Lower Athabasca River. The goal is to better understand what specific impacts might occur under alternative industrial-induced flow regimes of the Lower Athabasca River to First Nations communities.

To put the projects effects into a larger regional perspective, MSES has reviewed the evidence that is currently available for the Athabasca River flow and water quality as well as changes in the land cover around the river asking the following overarching questions:

 how much was there previously;  how much is there currently; and  how much will there be in the future?

We reviewed past and current streamflow trends, and estimated future effects on streamflow and water pollution in the Athabasca River as well as land cover changes around the river that would possibly influence the condition of the river. We investigate the evidence that exists to date for the claim of the Athabasca River’s ability to meet the entire ecosystem and traditional needs of First Nations. In particular, we evaluated whether there is scientific evidence for the claim that the river will retain condition to support the entire ecosystem and First Nations traditional way of life.

The methods and results of the streamflow trend analyses that MSES conducted for the Athabasca River between Fort McMurray and Lake Athabasca are described in this report. Changes in water quality and land cover in and around the Athabasca River in the study area were also reviewed and are presented here. The key components of the streamflow analyses were: to carry out trend analyses for all gauged streams within the study area, to estimate streamflow in the Athabasca River for Segment 4 with and without oil sands projects current and future water abstractions, and to interpret results. 1.3 Study Area The Lower Athabasca River is located within the Boreal Forest Natural Region north of Fort McMurray. The Athabasca River travels approximately 1,231 km from the Rocky Mountains, through the heart of Alberta’s Boreal forest, before draining into the Peace-Athabasca Delta (PAD). The Canadian boreal forest and, in particular the Athabasca River, are not only regionally important natural areas but also globally. The boreal forest is a complex ecosystem composed of a unique forest, wetlands, and a mosaic of lakes. Canada's boreal forest comprises one-quarter of the world's remaining intact forests. Beyond the ecosystem services it provides (oxygen production, carbon storage and water filtration), it is home to a wide variety of wildlife, including some of the largest populations of woodland caribou left in the world. Also, the Boreal Forest Region supports a large number of migratory bird and waterfowl species, many of them federally and provincially listed, during the breeding season.

There are four segments of the Lower Athabasca River included in this study, all of which are north of Fort McKay and bounded at the north end by Lake Athabasca (seen in Landsat satellite images p042r020 and p043r019 – Figure B1.2-1). The study area includes a part of the oil sands and mining developments

Appendix D MSES Streamflow and Landcover Analysis D‐3

TLU Mapping of the Lower Athabasca River October 2009 as well as forest operations, urban and infrastructural development. The PAD is downstream of the study area. The PAD is one of the largest freshwater deltas in the world providing a unique ecosystem in this region that supports at least 20 different kinds of fish, 42 species of mammal, and 200 bird species. The marshes, lakes and mud flats of this area are an important nesting habitat for waterfowl and provide a staging area for migration. For being the largest boreal delta of the world and for its undisturbed nature, the PAD is recognized as a Wetland of International Significance under the Ramsar Convention and a UNESCO World Heritage Site.

This review is meant to act as a tool in facilitating the mapping of traditional land use activities along Segments 1 to 4 of the Lower Athabasca River (Figure B1.2-1). Section 5, located upstream of Section 4, is discussed indirectly because it contains Fort McMurray and the developments in this region are a key part of the overall assessment of river health.

Appendix D MSES Streamflow and Landcover Analysis D‐4

TLU Mapping of the Lower Athabasca River October 2009

Figure B1.2-1: Athabasca River and Corresponding Segments

Appendix D MSES Streamflow and Landcover Analysis D‐5

TLU Mapping of the Lower Athabasca River October 2009

2.0 Streamflow Analyses Streamflow data analysis involves statistical analyses of the streamflow record to calculate means, minima and maxima, and often the frequency of certain streamflow events (i.e., flood or low flow occurrences). Streamflow analysis is also often used to establish a link between the streamflow record and the watershed that produced the streamflow, which then allows for the calculation of water yields per unit area in a particular watershed. Ideally, this analysis would consist of taking the difference in streamflow between two points within a watershed that have gauging stations and seeing whether the downstream volume is higher (meaning water is being added to the system) or lower (meaning water is being taken from the system).

For this analysis of streamflow in the Lower Athabasca River, streamflow volume data from the gauging station below Fort McMurray, and a station in the PAD would be ideal for making a comparison of instream flows along this section of the river. However, as there are no gauging stations in the lower reaches of the Athabasca River/PAD that record streamflow volumes, an indirect method must be used to estimate the streamflow at selected locations. There is a gauging station at Old Fort, which is in Segment 2, but this station is not usable for data analysis because this gauging station was largely closed in 1987. As a consequence, impacts of oil sands abstractions on streamflow downstream of the abstraction points can only be estimated.

Estimates of streamflow at points downstream of the Fort McMurray gauging station were obtained using observed streamflow at the Fort McMurray station and then systematically adding the long-term estimates of water yield from all watersheds contributing to the Athabasca streamflow. These watersheds are shown in Figure B2.0-1and their respective areas are listed in Table B2.0-1 (watershed areas from HYDAT 2009).

Table B2.0-1: Gauging Stations and Watershed Areas Used in the Streamflow Analyses Station Name Station ID Size of Watershed (km2) Athabasca River near Old Fort 07DD011 156,000 Athabasca River near Fort McMurray 07DA001 132,585 Steepbank River near Fort McMurray 07DA006 1,320 Muskeg River near Fort MacKay 07DA008 1,457 Firebag River at the Mouth 07DC001 5,988 Beaver River above Syncrude 07DA018 165 MacKay River near Fort MacKay 07DB001 5,569

Appendix D MSES Streamflow and Landcover Analysis D‐6

TLU Mapping of the Lower Athabasca River October 2009

Figure B2.0-1: Athabasca River Watersheds for Segments 2 to 5. Green points are watershed outlets for each Segment, red point is the gauging station at Fort McMurray

Appendix D MSES Streamflow and Landcover Analysis D‐7

TLU Mapping of the Lower Athabasca River October 2009

The watershed area of the Fort McMurray station in Segment 5 is 132,585 km2 (see Table B2.0-1). The watershed area of the Old Fort Station in Segment 2 is 156,000 km2, therefore the difference in watershed area between the two stations is 23,415 km2. There are five gauged tributaries flowing into the Athabasca River downstream of Fort McMurray – all are shown in Figure B2.0-2 below. The combined watershed area of these tributaries (Steepbank, Muskeg, Firebag, Beaver and MacKay Rivers) is approximately 14,500 km2, which constitutes a 62% difference between the watersheds at the Fort McMurray station and the Old Fort station. Therefore, we feel confident that the water yield information that is available will allow us to make realistic estimates of tributary contributions via extrapolation from the five gauged watersheds. Note that the Richardson River watershed (shown in Figure 2.0-2 in yellow) flows into the Athabasca River downstream of the Old Fort watershed and was not included in the above calculation; however, data from this watershed was used in study to estimate the water yield at the lower end of Athabasca River.

Currently, most major oil sands developments are located in Segments 4 and 5. Therefore, the downstream end of Segment 4 is the main focus of the trend analysis. Because no winter flows are recorded due to ice build-up, only weeks 9 to 42 (approximate period March to October) were included in the trend analysis. Because winter streamflows are the lowest, our estimates of the mean flow will be over-estimated, the minimum flow will be under-estimated, and the maximum flow will be accurate.

Appendix D MSES Streamflow and Landcover Analysis D‐8

TLU Mapping of the Lower Athabasca River October 2009

Figure B2.0-2: Athabasca River Gauging Stations Note: Grey watershed is the Athabasca River upstream of Fort McMurray; dark green watersheds are the tributaries used in this study; light green shows areas between Fort McMurray station and the Old Fort station that are not gauged.

Appendix D MSES Streamflow and Landcover Analysis D‐9

TLU Mapping of the Lower Athabasca River October 2009

2.1 Streamflow Trend Analyses

In order to project historical streamflow records into the future, the presence of any trends in streamflow needs to assessed so that they can be incorporated into future predictions. The significance of streamflow trends for each of the gauging stations listed in Table B2.0‐1, plus one at Richardson River which is a tributary near the PAD, were evaluated using the non‐parametric Mann‐Kendall test (Mann 1945, Kendall 1975) and the results are shown in Appendix II. The magnitudes of trends reported in Appendix II were computed using the Sen slope, which is not affected by the potential existence of serial correlation (Yue et al. 2002).

Two observation time periods are listed for the Fort McMurray station in Appendix II, one for the longest observation period (1957‐2008), and one from 1970 to 2007. For this analysis, the latter time period was chosen because the impacts of climate change on streamflow are only observable since approximately 1985. From the early 1970s to 2007, no overall streamflow trend was detected for any of the tributaries (Appendix II). Some tributaries exhibit an increasing trend for minimum, maximum, mean, spring, summer, or fall streamflows, while others exhibit a decreasing trend. Because most tributaries exhibited no particular trends for the reported long‐term streamflows, it is assumed that, for the observation period and all five tributaries combined, no generally significant streamflow trends are prevalent. Therefore, existing water yields were used for the estimation of future Athabasca River streamflow.

It is important to note that there is still some debate regarding this approach to streamflow trend analysis. With streamflow trend analysis many factors can impact streamflow volumes, such as increased water withdrawals for industry or agriculture, a change in air temperature or land cover, and long‐term cycles such as the Pacific Decadal Oscillation (PDO), the El Nino Southern Oscillation (ENSO), or sun spot activity. It is obvious that these cycles add uncertainty to the predicted streamflows reported here. Arguments have been made (e.g., Natural Resources Canada 2009) that decadal and inter‐decadal oscillations are part of the natural variations in river flows and must be taken into account for future streamflow predictions. However, the observations of record global temperatures since the 1990s, or the fact that temperatures in Alberta have increased between 1 and over 4°C during the last century (Schindler and Donahue 2006), cannot be explained by these oscillations. A correlation analysis of the PDO index against Athabasca streamflow (1957 to 2008) results in an r2 value of 0.008, indicating that there is no correlation between the two data sets. The comparison of a 10‐year moving average of the PDO index and streamflow at the Fort McMurray station revealed a chaotic pattern, showing no meaningful relationship between the two variables. Therefore, the affects of enhanced greenhouse gas concentrations (predominantly carbon dioxide and methane) and the associated warming of our atmosphere on the hydrological cycle are independent of these long‐term cycles, and are not expected to have significant effects on snowpack development, timing of snowmelt, evaporation, soil moisture, groundwater recharge, and streamflow.

Based on long‐term streamflow observations of the gauged tributaries, the average and monthly water yields per km2 of watershed were calculated. The water yields were then extrapolated for the entire Segment. The mean spring/summer/fall water yields for Segments 2 to 5, as well as

Appendix D MSES Streamflow and Landcover Analysis D‐10

TLU Mapping of the Lower Athabasca River October 2009 watershed areas, are shown in Table B2.1‐1. The watershed areas and March water yields, which represent the lowest flows, for the same Segments are shown in Table B2.1‐2. The reported watershed areas were determined based on a 25 m Digital Elevation Model (DEM) and Geographic Information System (GIS) based watershed delineation analyses, and validated using Prairie Farm Rehabilitation Administration (PFRA) watershed boundaries (Department of Agriculture Agri‐Food Canada 2007). Estimates are expected to have some errors because the true surface drainage areas that are disturbed by oil sands mining projects were not available. However, the watershed areas reported are believed to be accurate enough to make reasonable estimates on streamflow contributions to the Athabasca River.

Table B2.1-1: Mean Water Yields for Four Athabasca River Segments Based on Weeks 9 to 42 (March to October) Watershed Area Mean Runoff Mean Water Yield Segment Based On (km2) (m3km-2 year-1) (m3s-1) 5 1,950 161,600 9.99 Steepbank River Area-weighted average of 4 18,190 139,600 80.49 all tributaries 3 1,750 171,500 9.51 Firebag River 2 420 171,500 2.28 Firebag River

Table B2.1-2: Water Yields for Four Athabasca River Segments based on Weeks 9 to 12 (i.e., March, likely some of the lowest flows measured during the monitored period) Reach Watershed Area Mean Runoff Mean Water Yield Based On Segment (km2) (m3km-2 year-1) (m3s-1) 5 1,950 9,100 0.56 Steepbank River Area-weighted average of 4 18,190 22,000 12.68 all tributaries 3 1,750 46,100 2.56 Firebag River 2 420 46,100 1.73 Firebag River

2.2 Estimation of Future Streamflows

Future streamflows were estimated for Segment 4. Because future trends are based on the streamflow trends observed at the Fort McMurray station, Segments 2 and 3 would be expected to exhibit the same patterns, with the exception that, due to increased contributions from inflowing tributaries, the streamflows would be slightly higher. However, because the contributing watershed areas for Segments 2 and 3 are relatively small, the values are quite comparable. As mean streamflows are not expected to have an impact on the aquatic ecosystem, such as spawning areas, the more meaningful minimum streamflow trends for the Fort McMurray station were used.

The results of the streamflow trend analysis for Segment 4 are shown in Figure B2.2‐1. The method to estimate future streamflows for Segment 4 was as follows:

Appendix D MSES Streamflow and Landcover Analysis D‐11

TLU Mapping of the Lower Athabasca River October 2009

1. Estimate the March streamflow and future trends for the Fort McMurray station (compare with weeks 9 to 12 in Table B2.1‐2); this is believed to be conservative because even lower flows are typically observed between December and February. 2. Add water yields observed for March flows for Segment 4 watershed (from Table B2.1‐2) to the Fort McMurray station streamflow, resulting in the green time series representing the natural streamflow at Segment 4 (see Figure B2.2‐1). 3. Subtract current water withdrawals from oil sands projects at a rate of 370 million m3 year‐1 (Natural Resources Canada 2009) from the natural streamflow, distributed evenly over the year to 11.72 m3s‐1, resulting in the blue time series and the yellow trend lines (mean trend and upper and lower 95% confidence levels, see Figure B2.2‐1). 4. Subtract future predicted water withdrawals from oil sands projects of 529 million m3 year‐ 1 (Natural Resources Canada 2009) from the natural streamflow, distributed evenly over the year to 16.76 m3s‐1, resulting in the red trend lines (mean trend and upper and lower 95% confidence levels, see Figure B2.2‐1).

In Figure B2.2‐1, we see that no matter how we analyze the data, and no matter which mean trend series we examine, the conclusion remains that low flows are getting lower. Several other studies of the Athabasca River Basin have found similar overall results showing significantly decreased streamflows by the end of century (Kerkhoven and Gan 2005).

Appendix D MSES Streamflow and Landcover Analysis D‐12

TLU Mapping of the Lower Athabasca River October 2009

Figure B2.2-1: March Streamflow Trend at Downstream End of Segment 4

Appendix D MSES Streamflow and Landcover Analysis D‐13

TLU Mapping of the Lower Athabasca River October 2009

3.0 Water Pollution Large volumes of water are used in oil sands mining operations. This water becomes contaminated during the process of separating bitumen from sand and must be stored in tailing ponds. These containment ponds pose an environmental threat because pollutants can penetrate and migrate through the groundwater system and there is the additional risk of leaks to the surrounding soil and surface water.

Naphtha and paraffin are typically used in the oil sands to separate the bitumen from the sand. Although these compounds are largely separated and removed from the water before it is moved into the tailings ponds, this process is not complete. Additionally, many by-products of the petroleum itself are considers contaminants. One of the most dangerous contaminants in the oil sands tailings water is naphthenic acid, a natural constituent of petroleum that dissolves and becomes concentrated in the water used in the processing operations. Naphthenic acids are found in tailings ponds and are persistent and hard to remove from the environment (Alberta Environmental Protection 1996). Tailings may also contain trace amounts of heavy metals including mercury, iron, and aluminum. Other environmentally threatening toxic by-products include arsenic, calcite, fluorite, and sulfur.

Data for water temperature and heavy metals were requested from Alberta Environment for two monitoring stations: the station at Old Fort and the station upstream of Fort McMurray. However, to date, this data has not been sent to MSES Inc. Therefore, because data was not made available for this study, we focused our review on Regional Aquatic Monitoring Program (RAMP) reports (RAMP 2008). However, it is important to note that RAMP reports were only moderately useful because they only report data from Segments 1 to 3 which are not representative of the entire length of the Athabasca River. These Segments experience much lower levels of direct disturbance by industrial development than do Segments 4 to 5. In order to complete an accurate assessment of water pollution in the Athabasca River, the data that was requested from Alberta Environment is required.

According to the 2008 RAMP report, most chemical pollutants that were sampled in Segments 1 to 3 were within acceptable limits. Naphthenic acids have almost always been non-detectable in water sampled at all stations monitored by RAMP since 1997. However, RAMP has detected listed pollutant levels that exceed provincial guidelines. These listed pollutants include: iron, aluminum, and naphthenic acid. A recent study appears to support the observations of increasing concentrations of pollutants in Segment 4 of the Athabasca River (Timoney and Lee 2009).

Appendix D MSES Streamflow and Landcover Analysis D‐14

TLU Mapping of the Lower Athabasca River October 2009

4.0 Land Cover Disturbance Analysis Industrial development in the study area has resulted in significant changes to natural land cover, such as conversion of the natural landscape to mines and sand deposits as well as cut-blocks and major linear developments. Numerous studies have found that changes in land cover are directly related to changes in water quality and quantity (Northern River Basin Study 1994, see Swanson 1987 for a review).

Land cover analysis was not conducted for the entire Athabasca River watershed due to time limitations and availability of data. The total area included in the land cover change analysis is 1,354,287 ha (Figure B1.1-1) which includes Segments 1 to 4. Landsat satellite images p042r020 and p043r019 were used for the analysis and the study area includes a part of the mining oil sands developments as well as all forest operations, and urban and infrastructural development.

The total area of disturbed land was calculated using a series of Landsat 5/7 satellite images from 1992 to 2008. The change analysis was conducted using data processing based on the image algebra method which allows for the computation of changes in each pixel when comparing images from different dates (see Appendix III for detailed methods).

4.1 Changes in Land Cover 4.1.1 Linear Development Disturbance The density of linear disturbance ranges from 0.01 km/km2 in Segment 1, to 0.96 km/km2 in Segment 4 (Table B4.1-1). Note that according to our accuracy assessment, we were only able to detect 30% of the existing seismic lines, therefore, linear disturbance is underestimated.

Table B4.1-1: Linear Development Disturbance for Segments 1 to 4 from 1992 to 2008

Length (km) Segment Area Linear Density in

Up to 1992 Up to 2002 Up to 2008 (km2) 2008 (km/km2) Segment 1 18.09 18.09 18.09 1,843.83 0.01 Segment 2 70.82 96.05 98.74 1,929.12 0.05 Segment 3 224.98 240.94 404.81 3,572.23 0.11 Segment 4 2,539.39 4,105.26 5,971.93 6,197.71 0.96 Total 2,853.27 4,460.34 6,493.56 13,542.88 0.48

4.1.2 Non-Linear Development Disturbance The percentage of natural land cover that has been removed by non-linear disturbance ranges from 0.30% in Segment 3, to 7.7% in Segment 4 with an overall percentage of non linear disturbances of 3.6% (Table B4.1-2). However, this analysis does not include the footprint by linear disturbances because the exact width of linear corridors cannot be accurately measured on our satellite images. To date, the footprint of linear disturbances, including well pads and other small disturbances, remains unknown.

Appendix D MSES Streamflow and Landcover Analysis D‐15

TLU Mapping of the Lower Athabasca River October 2009

Table B4.1-2: Non-Linear Development Disturbance for Segments 3 to 4 from 1992 to 2008

Disturbed area (ha) Segment Area % of

(ha) Disturbance Up to 1992 Up to 2002 Up to2008

Segment 3 577.64 1,073.33 1,081.75 357,222.68 0.30

Segment 4 12,333.56 26,852.22 47,674.57 619,770.50 7.69

Total 12,911.20 27,925.55 48,756.31 1,354,287.65 3.60

The most intensive land conversion, from natural to industrial, is happening in the southern part of the study area largely as a direct result of the oil sands development. The average annual rate of change between 1992 and 2002 is 0.11%, and for the 2002-2008 time period is 0.15%. However, in Segment 4, the average annual rate of change increased from 0.4% during the 1992-2002 time period, to 3.4% in the period between 2002 and 2008. In the other words, the annual rate of land conversion increased almost nine fold in the past six years.

4.2 Changes in Water Quality The changes in land cover that have occurred in the study area have influenced water quality and quantity in the Lower Athabasca River. The most significant changes in water quality as a result of land cover change include: increasing sediment inputs into watercourses, changing water temperatures, and changes to water chemistry.

The three main sources of sediment in streams are surface erosion, mass soil failures (landslides), and stream bank erosion (Manning 1980). Studies have shown that post-forest clearing, sediment input into surrounding watercourses increases via surface erosion. Land clearing removes the vegetation canopy which protects soil from direct rainfall. Rainfall changes soil structure, reducing soil quality, and causes surface erosion which has a negative impact on water quality for the downstream ecosystem. Also, thousands of hectares of fine sand deposits are present in the region and are a nearly unlimited source of wind and water erosion. Some of this sand is deposited in regional watercourses where it reduces water depth and directly influences hydrologic connectivity.

Appendix D MSES Streamflow and Landcover Analysis D‐16

TLU Mapping of the Lower Athabasca River October 2009

In terms of changes to water temperature and water chemistry, as noted earlier, monitoring data was requested from Alberta Environment, but it has not been sent (see Section 3.0). In order to gain a better understanding of the potential changes to water quality, continuous water quality monitoring should be conducted in all reaches of the Lower Athabasca River and at the mouths of its tributaries. A high frequency of sampling, as well as a comprehensive network of monitoring stations, is required in order to capture long-term trends as well as short-term spikes in water quality parameters.

4.3 Changes in Water Flow Many studies in North America and other parts of the world have shown that, after removal of natural land cover, water yields increase up to 2.5 times (Swanson 1987). Changes in streamflow peaks are extremely variable and depend not only on the type of basin characteristics and management, but also on whether the flow is in response to rain, to rain on ripe snowpacks throughout winter, or to spring snowmelt. Forest clearing generally increases annual water yield through surface runoff as well as changes in evapotranspiration. This increase in annual water yield depends on the watershed area and the proportion of area in the watershed occupied by cleared sites or areas where forest re-growth has yet to re-establish hydrological control (see Figure B4.3-1, Brown 1980). Runoff, in turn, is positively correlated with erosion, and erosion is correlated with non-point source pollution.

The apparent lack of overall streamflow trends in the tributaries is interesting because both the Firebag and Beaver Rivers exhibit increasing trends in some of the streamflow statistics, during some weeks throughout the year. This could be the result of a number of hydrological processes. One such process could be that parts of those watersheds have undergone substantial deforestation, which results in less transpiration, leading to an overall decrease in evapotranspiration. Another reason could be the removal of wetlands and the compaction of large parts of the landscape in those watersheds, or the recent dewatering of removed overburden.

Figure B4.3-1: Ratio between Ground Cover, Surface Runoff and Erosion (from Brown 1980)

Appendix D MSES Streamflow and Landcover Analysis D‐17

TLU Mapping of the Lower Athabasca River October 2009

5.0 Conclusions This report aims to provide projections of streamflow and water quality in the Lower Athabasca River. We reviewed the past and current streamflows in the Lower Athabasca River, and estimated future streamflows and water pollution in the river, as well as land cover changes around the river that would possibly influence the condition of the river. Our overarching finding is that all long-term predictions of streamflow in the Athabasca River Basin result in a steadily decreasing trend within this century (see Figure B2.2-1). Several other studies of the Athabasca River Basin have found similar overall results showing significantly decreased streamflows by the end of century (Kerkhoven and Gan 2005).

An additional declining trend in minimum streamflow in the Lower Athabasca River is also predicted by our analyses. No matter how we analyze the data, and regardless of the confidence limits used, the conclusion remains that low flows are getting lower. Low flows in the early spring are impacted by climate change as a result of two changing processes in the climate. One such climate change process is the increase in temperatures, which results in more water being lost to the atmosphere (increased evaporation). The other process is the decline in groundwater recharge due to drier soils under climate change conditions, with the consequence of a decline in baseflow. Due to the very large annual variability of streamflow and the continuation of changing environmental conditions, including large-scale land cover changes, the rate of decline, and the associated uncertainty, will need to be closely observed over the coming years.

The overarching findings in our analyses are that the streamflow at the Fort McMurray station exhibits declining trends, which are intensified by water withdrawals from oil sands projects. Moreover, water quality in the Lower Athabasca River also shows a declining trend. The declining trend in the streamflow combined with the industrial development in the area, results in unavoidable increases water temperature which speeds up chemical processes and leads to degradation of the water quality. According to the 2008 RAMP report, most of the major pollutants are present in the river within acceptable limits. However, some of the pollutant limits were periodically exceeded which can have catastrophic consequence on aquatic life and human health. Moreover, the water chemical analysis indicates that the pollutants tend to increase, on average, and it appears to be only a matter of time before the average limits, not just the spikes in pollutants, will be exceeded.

It is important to note that in the streamflow and water quality analyses, we used the data sets that were made available to us. However, in conducting this analysis we were surprised at how poorly both streamflow and water quality are monitored in the Lower Athabasca River. It is clear that the data that appears to be available does not provide the necessary scientifically rigorous information to understand and prepare for the potential further erosion of the Athabasca River streamflow and water quality in the years to come. However, even with the lack of data provided to us, there now appears to be substantial scientific evidence for the claim that the Lower Athabasca River will eventually be unable to support the entire ecosystem and First Nations traditional way of life.

Appendix D MSES Streamflow and Landcover Analysis D‐18

APPENDIX E – QUESTIONS TO DFO AND INFORMATION REQUIREMENTS CONCERNING THE NEED TO UNDERSTAND AND ACCOMMODATE TREATY AND ABORIGINAL RIGHTS IN PLANNING AND DECISION­MAKING

E.1 Questions to DFO

It is our view that the Crown must understand and accommodate the possible and actual adverse impacts (direct, indirect and cumulative) of a decision, a plan, or policy, on the meaningful exercise of Treaty and Aboriginal rights now and for future generations. As part of the development of that information, we have set out below a number of questions which, in our view, are essential to any land and resource use planning and decision‐making process. We wish to discuss these questions and receive answers to them when we meet with you. Please note that these questions and information requirements have been posed to DFO by ACFN previously in a letter dated May 12, addressed to Brian Mackowecki, concerning Shell No Net Loss Planning. We have yet to receive a response to these questions and information requirements.

E.1.1 QUESTIONS CONCERNING THE EXERCISE OF RIGHTS 1. Does DFO dispute whether or not ACFN has existing, constitutionally‐protected rights within the Lower Athabasca area, as depicted on Figure 2 of the November 2008 Lower Athabasca River Phase II Water Management Framework Process Guidelines? 2. Has DFO conducted a preliminary assessment of the strength of claim of ACFN: a) In regards to the relationship between the flows of the Lower Athabasca river and the practice of ACFN’s constitutionally‐protected rights? b) In regards to the relationship between water quality and quantity in the Lower Athabasca area and the practice of ACFN’s constitutionally‐ protected rights? c) What information, guidelines and/or policy has DFO looked at if such an assessment has been made? 3. Does DFO agree that one of the purposes of planning related to the LARP is to ensure the meaningful exercise of ACFN’s constitutionally‐protected rights now and into the future?

Appendix E Questions and Information Requirements E‐1

E.1.2 QUESTIONS CONCERNING IMPACTS OF WATER WITHDRAWALS ON ACFN TRADITIONAL LANDS 4. Can you identify on a map the total water resources (surface and subsurface) within the Lower Athabasca area? Of these resources, which are, or will be, subject to water withdrawals associated with any planned or reasonably forseeable oil sands and other industrial activities (forestry, conventional oil and gas) within the Lower Athabasca area, including any approved or applied for oil sands and forestry activities? 5. Can you identify the water withdrawals associated with any planned or reasonably foreseeable oil sands and other industrial activities (forestry, conventional oil and gas) within the Lower Athabasca area, including any approved or applied‐for oil sands and forestry activities? . 6. Can you identify the difference in flows and levels of water quantity in water resources throughout the year as a result of these water withdrawals? 7. Can you identify the difference in water quality in water resources throughout the year as a result of fluctuating flows? 8. What steps has DFO taken to determine the extent to which water withdrawals, and associated changes in water quality and quantity in water resources, within ACFN’s Traditional Lands, which has already been authorized by the Crown, has already deprived ACFN of a meaningful opportunity to exercise their rights? a) How does DFO define “meaningful opportunity” in terms of the exercise of ACFN’s rights? b) Has DFO consulted with ACFN on what ecosystem / environmental / socio‐cultural conditions are required to sustain ACFN’s ability to exercise its rights now and into the future and to provide a meaningful opportunity to exercise their rights? c) Is DFO prepared to work cooperatively with ACFN to develop a traditional resource use plan based on the kinds of questions/information requirements set out at pp. 6 of the joint Mikisew‐Chipewyan Prairie submissions (appended)? 9. What steps has DFO taken to determine the extent to which approval of any oil sands projects that have already been approved and/or applied for within

Appendix E Questions and Information Requirements E‐2

ACFN’s Traditional Lands, would deprive ACFN of a meaningful opportunity to exercise their rights? 10. Are you of the view that there will be or already is increased human and financial hardship and expense to ACFN members to exercise their rights as a result of industrial development within ACFN’s Traditional Lands? 11. Have you assessed what lands and waters and associated resources (wildlife, fish, water quality and quantity, air quality, access) ACFN requires to carry out its constitutionally‐protected rights now and in the future? If so, what specific information did you assess? 12. Have you identified any lands and waters within ACFN’s Traditional Lands that will permit ACFN to exercise their rights now and into the future, based on the answers to 4‐11? a) If the answer is no, why not? b) If the answer is yes, what criteria did you use to make this determination and did you consider what use other First Nations, Métis and other persons are making of these areas and what their future needs are? c) Did you consider the direct and cumulative impact of other industrial activities within ACFN’s Traditional Lands when making that assessment? d) Are you prepared to consult with ACFN to protect lands (and waters) that ACFN requires to carry out its rights, prior to any further approvals, based on the information in (i.) and (ii.) above, and if not, why not? If so, what mechanisms does DFO contemplate to ensure protection of such lands and waters? Is there a legal mechanism for buying back leases/tenures? 13. Do you have a record of any consultation between ACFN and DFO related to the development of any water and/or fish habitat management frameworks and guidelines? Please provide copies of the existing consultation record. 14. Based on the information provided by ACFN to DFO in the past several years, what accommodations have you planned in respect of potential impacts on ACFN’s rights in relation to water withdrawals in the Lower Athabasca area? 15. What Federal permits, licenses and approvals have already been granted for water withdrawals for industrial activities within ACFN’s Traditional Lands? 16. What Federal permits, licenses and approvals have been applied for that have not yet been approved within ACFN’s Traditional Lands?

Appendix E Questions and Information Requirements E‐3

17. Has DFO undertaken an assessment of the impacts of DFO’s approvals for harmful alteration and destruction of fisheries habitat throughout ACFN’s Traditional Lands to determine the actual or potential impacts of those licenses on ACFN’s ability to exercise their rights now and in the future? a) If so, then what information did DFO assess? What criteria did it use to make those determinations? b) If not, why not?

E.1.3 QUESTIONS CONCERNING REGIONAL BENCHMARKS / TARGETS 18. Are there any regional benchmarks or targets in place to assess the impacts of industrial activities on the rights of ACFN? a) If so, then what are they? b) How are they aimed at assessing impacts on the rights of ACFN? 19. If the answer to 18 is no, will DFO agree to defer consideration of the Phase II Lower Athabasca Water Management Framework until such benchmarks/targets are developed?

E.1.4 QUESTIONS CONCERNING PARALLEL PROCESS CONSULTATIONS 20. For any questions herein where DFO is not prepared to deal with those questions in the development of the Phase II Lower Athabasca Water Management Framework, by what process will DFO consult with ACFN on those issues prior to the finalization of the Phase II Lower Athabasca Water Management Framework? 21. For any of those issues or items, what information does DFO require to determine the potential impacts of the Phase II Lower Athabasca Water Management Framework on the rights of ACFN in “parallel process” consultations? 22. What information, if any, will DFO use to decide whether or not to approve the Phase II Lower Athabasca Water Management Framework? 23. Is DFO prepared to consult with ACFN in “parallel process” consultations or in respect of the Phase II Lower Athabasca Water Management Framework, itself, on the following, prior to finalization of the Phase II Lower Athabasca Water Management Framework, if DFO is not prepared to deal with those items through consultation with ACFN on the Phase II Lower Athabasca Water Management Framework, itself:

Appendix E Questions and Information Requirements E‐4

a) To identify the key resources (species, numbers, uses, air quality, water quality and quantity, etc.) and lands that ACFN requires to sustain the exercise of its rights, such as through the development of and funding for a Traditional Use Resource Plan? b) The development of appropriate baseline data, benchmarks or related measures for wildlife, fish, associated habitat, air, water quality and quantity and other resources on which we rely to carry out our rights, to ensure that potential impacts of on ACFN’s rights are properly and fully assessed and accommodated? c) To prepare a baseline inventory of all such key resources? d) To establish effects modeling and proper scientific rigour that can be used to test the conclusions reached in the EIA? e) To implement regional targets/benchmarks/measures for ACFN’s key resources and habitat to preserve ACFN’s ability to exercise its rights in the face of the development of its Traditional Lands/to serve as an appropriate and meaningful measure against which to assess potential impacts of the Phase II Lower Athabasca Water Management Framework, and industrial development, on those rights? f) To identify critical lands and waters that should be protected from further development, to ensure that ACFN retains a meaningful opportunity to exercise its rights? g) To work with ACFN to identify and assess the cumulative impacts of all existing and reasonably foreseeable development on the rights of ACFN including, for example: i. Projects which do not themselves trigger an assessment under EPEA or CEAA? ii. Projects beyond those that have been applied for or approved? iii. The tenures that have already been granted, the potential development of the same, and the potential impacts on ACFN’s rights? h) To implement rigorous monitoring and assessment programs, on a regional basis, to ensure that ACFN’s key resources (including water quality and quantity) and lands do not fall below the levels required to sustain those rights?

Appendix E Questions and Information Requirements E‐5

i) To develop credible and detailed reclamation measures for land, water, air, wildlife, habitat, vegetation and other important matters on a local and regional basis? j) To determine how grants of water licenses to Industry in ACFN’s Traditional Lands has adversely impacted or infringed ACFN’s rights and how further development can be done to avoid or minimize such impacts or infringements? 24. To the extent that DFO is prepared to engage in consultations on all or any of these items, could DFO please identify: a) The statutory and regulatory mechanism(s) by which the contents of any such consultations will be integrated into decision‐making processes for the Phase II Lower Athabasca Water Management Framework? b) The means by which the contents of such consultations will be integrated into an existing/on‐going regulatory/approval processes for existing applications under review? c) How such consultations and any necessary follow‐up will be carried out in sufficient time to be taken into account in all relevant statutory decision‐making processes? d) The means by which the information provided by ACFN in such consultations will be analyzed and considered in light of the information gathered and analyzed in the course of preparing the Phase II Lower Athabasca Water Management Framework? e) The process and timelines by which consultations be carried out, including when and by whom? 25. If DFO is not prepared to do so on any or all of these items, please explain why not?

E.1.5 QUESTIONS CONCERNING MORATORIUM ON DEVELOPMENT 26. Is DFO prepared to withhold any project‐related approvals on oil sands or other industrial projects until the Phase II Lower Athabasca Water Management Framework is in place? 27. If not, why not, given the clear acknowledgment in the Land‐use Framework as to shortcomings in the current planning and decision‐making process?

E.1.6 OTHER QUESTIONS 28. How will the Phase II Lower Athabasca Water Management Framework be related to or integrated into any project‐specific regulatory review processes? In

Appendix E Questions and Information Requirements E‐6

other words, would decision makers within DFO, as well as other regulatory bodies, be bound by the Phase II Lower Athabasca Water Management Framework? 29. How will DFO consult with ACFN in relation to the development of the Phase II Lower Athabasca Water Management Framework so that ACFN’s issues and concerns may be addressed, including in relation to the information needs raised herein and in parallel process consultations? E.2 Information Requirements

The key issue for the First Nations is to ensure that their constitutionally‐protected rights, including the sociocultural, economic and ecological conditions that underly the meaningful practice of those rights, are sustained within their Traditional Lands (and waters). Sustaining the rights of the First Nations for their future generations will require that Treaty and Aboriginal rights be considered and accommodated in any regional plan and/or management framework that forms the basis for land and resource use decision‐making in the Lower Athabasca region. The following information requirements are taken from a joint submission by MCFN and Chipewyan Prairie Dene First Nation to Alberta Sustainable Resource Development on the Land Use Framework. While they are not a definitive list of what may need to be considered, they are a starting point for a rights‐based assessment. While some of these information requirements may not fall within what DFO might consider to be their mandate, given the complex relationships amongst all aspects of the sociocultural, biophysical and economic conditions that underlie the meaningful practice of rights, it is important to approach such an assessment from a holistic (and therefore beyond‐mandate) perspective.

E.2.1 GENERAL INFORMATION REQUIREMENTS 1. Assessment of uses of the lands contained within the Plan area by all of the ATC First Nations, Métis Groups and other non‐Aboriginal peoples within the area. There is already growing pressure on our Traditional Lands from various kinds of land use – exploration, industrial development, camps, recreational and commercial resource use, use of lands for traditional purposes by our First Nations and other First Nations, to name some examples. As more of our Traditional Lands are used for development and other activities, this puts more pressure on those parts of our Traditional Lands that have not been developed. 2. The following kinds of information must be collected and analyzed as part of any management plan or framework:

Appendix E Questions and Information Requirements E‐7

(a) The extent to which existing industrial development within our Traditional Lands has already adversely affected our ability to exercise our rights; (b) How planned/reasonably foreseeable development has the potential to further adversely affect our ability to exercise our rights1; (c) The impact of the grants of tenure throughout our Traditional Lands on our ability to exercise our rights; and (d) Identification of the lands and resources which our First Nations require to sustain ourselves now and into the future, including identification of protected areas.

E.2.2 BASELINE INFORMATION TO INFORM DEVELOPMENT OF THE LUF AND THE PLAN 3. In our view, proper baseline information is needed to understand the potential direct, indirect and cumulative impacts of existing, planned and reasonably foreseeable industrial development on our ability to exercise our rights. We regard 1965, when the impacts of intensive oil sands development began to be felt in our Traditional Lands, as the date needed to establish the baseline data. The following information is required to inform the baseline: (a) Quantitative Information on our Traditional Lands: (i) Traditional Territory study area2 and size in miles² and hecatres² (ii) Fixed Sites of Cabins, Camps, Communities, Historical Trails, Graves, Trap Lines, Spiritual sites (locations to be kept private unless authorized by the First Nations) within Traditional Territories (iii) Current and past potable water sources and infrastructure. (iv) Current and pat travel routes within our Traditional Lands. (v) Amount of land within Traditional Lands already taken up for development (energy, forestry, agriculture, pipelines,

1 Here, we note that “reasonably foreseeable” development must focus on the rate of development in the past as a projection tool for examining future development. This is different than Alberta’s current practice of simply examining projects that are under regulatory review, because those projects show only a fraction of the actual future development(s). 2 Traditional Lands of historically nomadic First Nations have extended vast distances and are very difficult to limit or measure in conventional terms. Over time, traditional activities have been focused in various areas associated with camps, summer villages and central areas. It is therefore necessary to define a study area for the First Nations which will properly reflect where the First Nations have carried out their traditional pursuits historically as well as today.

Appendix E Questions and Information Requirements E‐8

project footprints and related infrastructure, seismic activity, etc.) and analysis of how this affects traditional cycles of use. (vi) Traditional activities potentially impacted by reasonably foreseeable industrial development. (b) Quantitative and qualitative information on Current and Historical Traditional Uses (hunting, fishing, plants and medicines, spiritual use): (i) Hunting  Main species hunted for food and domestic purposes and the uses made of those species;  Locations and access routes currently used for hunting main species  Changes from 40, 20 and 10 years ago in locations and access routes used and costs associated with hunting main species based on such changes, both qualitative and quantiative  Estimated amount of current consumption and percentage of total meat intake from hunted animals.  Estimate of change in amount of hunted meat as a percentage of total meat consumed from 40, 20 and 10 years ago (ii) Fishing  Main species fished for food and domestic purposes and uses made of those species  Locations currently used for fishing main species  Changes from 40, 20 and 10 years ago in locations used for fishing main species and costs associated with such changes, both qualitative and quantiative  Estimated amount of current consumption and percentage of total fish intake from fishing  Estimate of change in amount of fish as a percentage of total fish consumed from 40, 20 and 10 years ago. (iii) Gathering Plants and Medicines  Main species gathered and uses made thereof  Locations currently used for gathering main species

Appendix E Questions and Information Requirements E‐9

 Changes from 40, 20 and 10 years ago in locations used for gathering main species and costs associated with those changes  Changes in frequency of gathering activities. (iv) Spiritual and Cultural Use  Locations currently used for spiritual and cultural practices (locations to remain confidential unless disclosure is authorized by the First Nations)  Changes in location from 40, 20 and 10 years ago and costs associated with those changes, both qualitative and quantiative (v) Traditional Economic Pursuits  Animals, plants, medicines used for barter or trade  Changes in bartering and trading from 40, 20 and 10 years ago and reasons for change  Estimated cost of purchasing goods previously gathered, hunted, fished, or traded or bartered. (vi) Traditional Resource Pursuits  Current forest and mineral resources gathered and used.  Changes in forest and mineral resources gathered and used from 40, 20 and 10 years ago. (c) Socio‐Economic Information (i) Current demographics ‐ age, family units, education, sex, private sector employment, FN public sector employment, self‐ employment) (ii) Changes in demographics from 40, 20 and 10 years ago (iii) Predicted demographics in 10 years based on current trends (d) Income (i) Amount and sources (trapping, wage employment, etc.) of income (ii) Changes in amounts and sources of income from 40, 20 and 10 years ago (iii) Number and percentage of individuals and families receiving social assistance

Appendix E Questions and Information Requirements E‐10

(iv) Changes in number and percent of social assistance recipients from 40, 20 and 10 years ago. (e) Expenditures (i) Expenditures on food, housing, travel and recreation (ii) Changes in expenditures from 40, 20 and 10 years ago (iii) Resource Sector Employment and Income (energy, forestry, agriculture, other) (iv) Current number of First Nation members employed in resource sector (v) Changes in number of people employed in resource sector from 40, 20 and 10 years ago (f) Health Information: (i) First Nation health problems (including cancer and respiratory illnesses) by age and sex (ii) Changes in health problems from 40, 20 and 10 years ago (iii) Deaths (ages, causes) (iv) Changes in causes of deaths from 40, 20 and 10 years ago (v) Health problems and causes of death compared to regional population

E.2.3 CUMULATIVE IMPACTS In addition to properly identifying the existing, planned and reasonably foreseeable industrial development that must be assessed in a cumulative impacts assessment, it is necessary to include in such assessments:  The full footprint of the existing and future projects at issue  Cut‐blocks and linear developments such as roads, pipelines and power lines, including the impacts of same3 Additional information required to properly assess the cumulative impacts of development on our rights includes:

3 For example, it is known that linear developments including seismic lines and pipelines provide open access that is used by ATVs for decades after they have been constructed. This indicates that there will be long‐ lasting effects of these developments, much past the closure scenarios indicated in many of the existing project‐specific cumulative effects studies. These effects are therefore cumulative and must be included as part of proper information gathering.

Appendix E Questions and Information Requirements E‐11

4. Cumulative Impact on our Traditional Lands and their Uses (a) Amount (quantity and percentage) of potential oil sands deposits within our Traditional Lands (b) Amount of land (quantity and percentage) currently leased for oil sands exploration within our Traditional Lands (c) Percentage of oil sands leases developed in our Traditional Lands in past 10, 20, 30, and 40 year increments (d) Amount of land within our Traditional Lands potentially impacted by other oil sands developments (reasonably foreseeable development and not simply applied‐for projects) (e) Amount of land within our Traditional Lands already taken up for other non‐oil sands developments (i.e. converted from natural vegetation) (f) Amount of and within our Traditional Lands that is planned/reasonably foreseeable to be taken up by non‐oil sands development (g) Amount of our Traditional Lands lost to Traditional Uses because of direct and indirect impacts of development and how this impacts ability to carry out traditional pursuits, livelihood/usual vocations. 5. Impacts of Forestry (a) Forest tenure holders in our Traditional Territories (b) Size of forest tenures in our Traditional Territories (c) Estimated size of area of direct and indirect disturbance to wildlife relied upon by our First Nations within our Traditional Lands 6. Linear Corridors (a) Identification of all linear corridors (pipelines, transmission lines, roads, seismic lines) in Project area. (b) Estimated size of area of direct and indirect disturbance to wildlife relied upon by our First Nations within our Traditional Lands 7. Other tenure holders (a) Identification of all other tenure holders in the Project area including exploration leases. (b) Size of area of held by other tenure holders in our Traditional Territories 8. Reasonably Foreseeable Future Developments

Appendix E Questions and Information Requirements E‐12

(a) The identification of all planned and reasonably foreseeable industrial activities within our Traditional Lands (b) The infrastructure required to serve the future developments. (c) The number of access roads, and size of accessible area, for all future developments, including exploration, based upon current averages. 9. Other Information (a) Impacts of climate change within the area of the Plan/within our Traditional Lands

Appendix E Questions and Information Requirements E‐13

Athabasca Chipewyan First Nation Mikisew Cree First Nation Chipewyan Prairie Dene First Nation Industry Relations Corporation Government and Industry Relations Industry Relations Corporation 110B -9816 Hardin Street Suite 208, 9715 Main Street Suite 205, 10020 Franklin Avenue Fort McMurray, AB T9H 4K3 Fort McMurray, AB T9H 1T5 Fort McMurray, AB T9H 2K6

October 19, 2010

Dave Bartesko Land Use Secretariat 9th Floor, 10035‐108 Street Centre West Building Edmonton, AB T5K 2G8 [email protected]

Dear Mr. Bartesko:

Re: Comments on the Lower Athabasca Regional Advisory Council’s Advice to the Government of Alberta Regarding a Vision for the Lower Athabasca Region (“the RAC Document”)

This letter sets out some of the Mikisew Cree First Nation, the Athabasca Chipewyan First Nation and the Chipewyan Prairie Dene First NNation’s (“First Nations”) comments on the RAC Document and Cabinet’s powers in respect of the Lower Athabasca Regional Plan (“LARP”). We have also attached an appendix to this letter which provides a chart showing all of the references to “aboriginal peoples” in the RAC Document, the RAC vision for each item, and the problems with the vision. Please note that the First Nations will be providing additional information to the Government of Alberta, including their respective visions for the LARP, on or before November 11, 2010, as per Melody Lepine’s discussion with Dave Bartesko on October 15, 2010.

Background Comments

As you are aware, the RAC Document does not incorporate the First Nations’ information, or incorporates, at best, limited information that was publically available at the time that the RAC Document was being completed. The RAC Document should be

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updated after careful consideration of the information submitted by the First Nations in consultation with the First Nations.

All three First Nations have made various requests with Alberta, including specific proposals with Alberta in their October 2008 submissions on the Land Use Framework for developing data regarding land and resource use requirements of First Nation; data which is critical for credible land use planning.1 Alberta did not respond in any way to the requests of the First Nations to develop the data and information (including thresholds) required to properly assess and accommodate Section 35 rights in the LARP. Therefore, the RAC document does not include the types of specific information that would have come from a traditional land and resource use plan.

The RAC Document does not consider the questions previously tabled by the First Nations with the Land Use Secretariat concerning specific potential impacts on section 35 rights.2 As a result, while there are occasional references to “rights” in the RAC Document, there is no analysis provided as to how (if at all) the recommended areas for protection took into account any of the information necessary to protect section 35 rights.

It is important to recognize that both MCFN and ACFN requested the development of a mutually acceptable consultation protocol to guide the development of LARP. Both First Nations also set out, in their funding request for participation in LARP3, approaches to consultation that they wished to pursue. Alberta unilaterally imposed its own approach to consultation and has not responded to the consultation approaches set forth by the First Nations. This lack of procedural consultation by Alberta is problematic both from a constitutional standpoint and also from a pragmatic standpoint given that the RAC itself was constituted primarily of industry and government representatives and not First Nations.

The RAC Document perpetuates what the First Nations consider to be Alberta’s flawed approach towards aboriginal issues by not using a rights‐based focus. Indeed, none of the other processes referenced in the RAC Document, such as the IFN, use a rights‐ based focus. As such, the RAC Document and the proposals that it contains are insufficient to meet Alberta’s constitutional obligations towards aboriginal peoples.

1 Chipewyan Prairie First Nation and Mikisew Cree First Nation’s October 2008 Joint Submission on the Land Use Framework included the need to develop a Traditional Resource Use Plan. Athabasca Chipewyan First Nation’s October 2008 Proposal for Co‐management of Richardson Backcountry also included the need to develop a traditional resource use plan in addition to a planning and decision‐making framework that respects the Treaty relationship and priority rights of First Nations. 2 CPFN and MCFN tabled these questions in their October 2008 submission on the Land Use Framework, while ACFN tabled them in their April 2009 submission on the LARP. 3 ACFN’s submitted their funding proposal July 31, 2009; MCFN submitted their funding proposal on August 19, 2009.

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Because of the above problems with the adequacy of information, consultation and methodology, it is impossible to tell how RAC came to the conclusion that the proposed conservation and mixed use areas will assist in protecting section 35 rights when all indications are that the RAC Document proposals will, instead, facilitate yet more development that has the potential to adversely impact and infringe the section 35 rights of the First Nations.

As a final background point, it is troubling that the RAC Document provides no guarantee that even if certain areas are protected, that they will remain protected. This is because, as is discussed in greater detail below, under the Alberta Land Stewardship Act Cabinet can override various protection‐related decisions, even if they initially accept them.

Specific Comments on the RAC Document

The lack of a rights‐based approach in the RAC Document means that there is little or no recognition in LARP that the existing level of development in some areas is already adversely affecting and infringing section 35 rights. The potential consequences of this lack of recognition are exacerbated by the unwillingness of the Crown to conduct proper studies or consider freezing development in certain areas until more information is known about potential direct and cumulative impacts, including on section 35 rights.

At page 7 of the RAC Document, it is stated that “the Alberta Land Stewardship Act (“ALSA”) makes regional plans binding on…all provincial government departments and decision‐making boards and agencies”, but it remains unclear what the relationship is between LARP and any project‐specific decisions that must be made by regulatory agencies or individual line ministries. Also, while there is a recommendation at page 12 to strengthen the capacity of government boards to support the social and economic assessments of major projects, this recommendation is meaningless if the boards will simply apply ALSA.

There is no analysis in the RAC Document of the direct and cumulative impacts of existing and planned development on section 35 rights, and no attempt is made to distinguish between impacts of different kinds of development (e.g., mineable oil sands, SAG‐D, mineral extraction, exploration, transportation and infrastructure). There appears to be an assumption, without any analysis of adverse impacts on section 35 rights, that various kinds of land uses (including First Nations land use) and industrial development can occur side by side in the large mixed use zone. This is particularly troubling in light of the broad range of activities, which the RAC Document assumes will continue to increase, without providing any basis for that assumption. An analysis of the impacts of these various uses on Section 35 rights (including an assessment of thresholds for the meaningful practice of rights), is required.

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Throughout the RAC Document, there is no explanation of what is being assessed or should be assessed in terms of impacts in the planning area. What is clear is that there is no attempt to assess potential direct and cumulative impacts on section 35 rights. The disregard for section 35 rights goes even further, for in addition to not assessing effects on those rights, the RAC Document also virtually ignores the importance of the constitutional protection of section 35 rights.

This is reflected at page 3 where impacts to “aboriginal communities” are mentioned only after consideration of community development, physical and social infrastructure needs, recreation and tourism development, population growth and labour needs and impacts to local communities.

This is also reflected in the five land‐use classifications in the document. The RAC Document assumes, without any analysis, that aboriginal and treaty rights can be exercised in “conservation” areas and in other areas. Moreover, it makes this assumption even though the various changes that Alberta Sustainable Resource Development is proposing in mechanisms such as the Proposed Public Lands Administration Regulation raise questions as to whether First Nations can even exercise their rights in the conservation areas. It also makes this assumption even though its strategies, such as the strategy to “stimulate private sector development of recreation areas with long‐term leases” and “partner with the private sector to develop a tourism industry with opportunities based on the Lower Athabasca Region’s industries, culture and heritage” may adversely affect the exercise of section 35 rights as well. The same sort of pro‐development without analysis of impacts on section 35 rights is also contained in the Regulatory Enhancement Project (“REP”) work that Alberta is undertaking – the focus of REP is on increasing “regulatory efficiency”, without setting out how section 35 rights will be dealt with. The First Nations have filed separate submissions to Alberta on REP (Appendix 1) .

The RAC Document refers, at page 5, to management frameworks offering “a system for understanding priority values and how those values are affected by land‐use decisions.” Yet, despite the constitutional framework and various Supreme Court of Canada decision, the RAC Document does not treat constitutionally‐protected rights as a priority value at all.

The RAC Document fails in certain methodological respects as well. For one, while there are references to “cumulative impacts” throughout the document, there is no recognition that existing, planned and reasonably foreseeable industrial development has adversely affected and infringed, and has the potential to further adversely affect and infringe, the ability of the First Nations to meaningfully exercise4 their rights now

4 “Meaningful practice” of Section 35 rights requires access to tangible and intangible resources (including, but not limited to, air, water, minerals, timber, fish, small and large game animals, cultural landscapes, and resources of traditional knowledge and learning) of adequate quality and quantity for

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and in the future. Moreover, there is no methodology set out for how such effects and impacts are to be assessed and there is no consideration of incorporating different methods of assessment for such impacts. Similarly, while there is a discussion of management frameworks at p. 6, there is no analysis of how things like thresholds and triggers will be developed and upon what sorts of considerations both generally and in relation to the meaningful exercise of section 35 rights.

It is clear that the overriding principle of the RAC Document is that of economic growth and that protection of other interests is secondary: page 8 states, “[m]any economic benefits are realized through our land and resources. The land and its renewable and non‐renewable resources must provide quality of life for Albertans now and in the future.” This is a very one‐sided notion of “quality of life.” The focus is on citizens of Alberta, including First Nations, “thriving” in terms of economic growth. While economic growth is critical to First Nation people, there appears to be no recognition in the RAC Document of the costs involved and who bears those costs. See, for example, the list of items at pages 8‐9 under “the economic potential of the oil sands is optimized” and “the economic contribution of forestry is optimized.” There is also no recognition of the impacts of existing disturbances on section 35 rights or any other interests. Rather, the RAC Document contemplates activities that will likely significantly affect section 35 rights: take, for example, the statement at page 9 that within the LARP Alberta should “revise regulatory processes to be competitive in the development of oil sands and other key industries.” (emphasis added)

The First Nations note that the first real discussion of “aboriginal peoples” comes only at page 11 of the RAC Document, and even then the discussion is not in relation to constitutionally‐protected rights, but in relation to “increased participation of aboriginal peoples in the regional economy.” Again, economic opportunities for First Nations people are important, but they cannot be considered without also understanding the impacts of development on the exercise of rights.

At page 11, there is also a reference to the need to “work with aboriginal peoples to develop aboriginal centres of excellent pertaining to traditional knowledge, stewardship practices, aboriginal cooperative management opportunities, roles and responsibilities in environmental monitoring, integration with western science, etc.” and “collaborate with aboriginal peoples to address compensation matters and concerns relating to the infringement of treaty rights and other constituently protected rights.” Contrary to constitutional requirements that the Crown respect aboriginal and treaty rights, the focus here is not on preserving the rights, but appears to be focused on monitoring impacts and compensating for infringement.

First Nations members to practice their mode of life with confidence, in the preferred manner and location, to sustain their health and the health of their families, and to provide a reasonable and moderate livelihood.

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There is a recommendation at page 12 to “create a new process to assess the infrastructure, social and economic implications of major projects and the growth they create in a manner that parallels the application approval process”. This is a good idea, but that process needs to include impacts such as cultural impacts and impacts to constitutionally‐protected rights. It also needs to involve meaningful consultation with First Nations people at all key decision making steps, starting with scoping of projects, terms of reference, etc. The RAC Document does not set the framework for either.

Another interesting recommendation on page 12 is to “work with and support aboriginal peoples who develop sustainable social and economic development plans, consistent with traditional stewardship plans.” Unfortunately this recommendation is largely meaningless because it is not clear how this can be done when LARP creates a framework that allows Traditional Territories to continue to be developed over the objections of First Nations regardless of impacts on their rights.

There are a number of recommendations at page 15 concerning the need to better understand environmental issues. While many of the recommendations concerning aboriginal issues (see page 16 – “work with aboriginal peoples to utilize aboriginal knowledge of historical changes in water quality and quantity, air quality, land and biodiversity to establish firm baselines for measurement in the region”) are good ideas, they are ultimately flawed. First, the recommendations are meaningless without regulatory change to actually incorporate those perspectives into decision making. Second, there is no discussion of section 35 rights or accommodation in these recommendations. Equally troubling, the recommendation to support development of “education programs to present the region’s unique cultural and aboriginal history” essentially leads to what Tom Berger said years ago, namely, that development without considering the needs of First Nations may lead to a situation where First Nations and their cultures are analyzed as things of historical interest, rather than as living, vibrant cultures.

The recommendation at page 17 that a cap be placed on the amount of the LARP Region’s land base in mixed‐use areas that can be disturbed for oil sands extraction footprint at any one time is a good idea; however, this recommendation needs to be expanded to include all development zones and also needs to consider placing a limit on all kinds of development depending on cumulative impacts, not just in terms of oil sands extraction.

At page 17 there is a recommendation that calls for use of aboriginal traditional knowledge to enhance understanding of cumulative effects and develop appropriate mitigation/minimization strategies. This is generally a good idea, but it will only work if there are regulatory changes to require incorporation of such knowledge at an early point in project and application planning.

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There are various recommendations, beginning at page 17, for incorporating planning and analysis into reclamation and inclusion of aboriginal peoples at that stage. This focus on reclamation without assessing impacts on rights beforehand is problematic by itself. It is made more problematic by the failure of the RAC Document to counter the apparent assumption that any kind of plants or grasses, for example, in an area is fine in reclamation, irrespective of what the pre‐disturbance conditions were. This “reclamation as mitigation” approach essentially reflects an understanding that it is acceptable for First Nations to suspend their exercise of rights in an area for decades without analyzing what the cultural impacts may be if that occurs.

There is a recommendation at page 18 that aboriginal peoples be included in terms of conservation and enhancement of regional biodiversity and ecosystem function and in respect of developing a traditional knowledge base of the variety and intensity of impacts of individual and cumulative industrial activities on biodiversity and ecosystem functions through time. The problem, again, is that this recommendation has no context, for it does not address when this will occur, how it will influence LARP or future project‐specific decision making, etc.

There are references at page 22 to valuing cultural diversity and protection of significant historical resources, including maintaining opportunities for community traditional use activities such as hunting, fishing, trapping, country foods and camping, preservation of historical sites, etc. Again, these are important concepts, but so long as the regulatory system ignores or downplays rights and traditional uses, these statements are largely meaningless.

Outcome 7 expressly deals with Aboriginal People’s Rights, Traditional Uses and Values and says they should be respected and reflected in planning. Some of the recommendations in Outcome 7 and the First Nation’s comments on them include:

 Ensure meaningful consultation with aboriginal peoples: it is unclear how this is to be done, particularly when Alberta’s Consultation Guidelines do not reflect the current state of the law5;

 Work with aboriginal peoples to improve quality of information to inform and co‐ ordinate current planning processes, infrastructure and services planning: This is an positive idea, but the RAC Document does nothing to assist First Nations when they raise information needs in project‐specific TORs or in other processes and are ignored;

 Work with aboriginal peoples to develop formal roles and responsibilities for aboriginal peoples in land‐use planning and environmental assessment: this is a

5 Please note that all of the Treaty First Nations of Alberta have submitted a detailed letter to the Government of Alberta setting out their concerns with Alberta’s Consultation Guidelines (Appendix 2).

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good idea, especially if the role is in relation to rights and unique First Nation issues, and not merely as stakeholders. However, it can only work if there is a real chance to influence planning and project decision making at all levels, and the RAC Document offers nothing to make that happen;

 Other recommendations in this section are positive as well, but are hindered by current realities that are overlooked by the RAC Document: significant areas are already leased out, economic development is the overriding imperative in the RAC Document, and the current regulatory system and consultation approach does not meaningfully incorporate First Nation issues and concerns;

The First Nations note that the RAC Document fails to consider the potential adverse impacts of things like conservation areas and parks on the exercise of rights. Although “parks” sound like a good idea, the exercise of section 35 rights is usually restricted in those parks and Alberta must carefully consider the scope and nature of those restrictions in order to avoid infringing constitutional rights.

Problems such as those just identified run through the remainder of the RAC Document as well. For your consideration, attached as Appendix 3 hereto is a chart showing all of the references to First Nations or Aboriginal peoples in the RAC Document, together with the weaknesses, flaws or questions that the various references raise in respect of the First Nations and their rights.

Comments on the Power of Cabinet over the Implementation of RAC Proposals and Conservation Efforts

The RAC Document notes at page 7 that the Alberta Land Stewardship Act governs the implementation of regional plans, including LARP. Under the Land Stewardship Act the responsibility for designating regions for planning purposes, adopting regional plans and all other significant powers rests with the Lieutenant Governor in Council. In short, the Lieutenant Governor in Council has absolute and unfettered authority over regional plans. For example, pursuant to the Land Stewardship Act:

 the Lieutenant Governor in Council has exclusive and final jurisdiction over all regional plans [s.13(1)];

 the Lieutenant Governor in Council can amend regional plans regardless of the views or advice of a regional advisory council or the land use secretariat [s.5(1)];

 there are no limitations on the Lieutenant Governor in Council’s authority to repeal regional plans [s.5(2)];

 the Lieutenant Governor in Council has authority to determine and amend planning boundaries [s.3(1)];

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 the Lieutenant Governor in Council has regulation‐making authority in respect of all aspects of the process for amending regional plans, including who may be consulted [s.4(2)];

 the Lieutenant Governor in Council sets the terms for the 10 year review of each regional plan [s.6(2)];

 the Lieutenant Governor in Council has the sole authority to determine how and by whom stewardship units are created [s.46]; and

 the Lieutenant Governor in Council has the sole authority to create and regulate “off‐set programs” [s.47] and transfer of development credit schemes [s.48].

The authority of the Lieutenant Governor in Council to unilaterally amend or disregard parts of regional plans renders even the positive proposals of the regional plan regarding conservation and aboriginal rights – such as the proposal to develop formal roles and responsibilities for aboriginal peoples in land‐use planning – potentially meaningless, for any commitment to include aboriginal peoples in planning decisions and management frameworks can be set aside by the Lieutenant Governor in Council.

Comments on the RAC Conservation Approach

In addition to the foregoing, below we set out specific comments on the flaws with the LARP approach to “conservation.”

1) General Comments on Cthe RA Document and Conservation

At the heart of the RAC Document is a suggested planning philosophy that environmental effects are to be balanced with social and economic goals. At the outset we note that this planning philosophy fails to recognize that this balancing exercise must take place within the constitutional framework of Canada. The constitutional framework requires that aboriginal and treaty rights be recognized and protected and, where the province considers any action which may adversely impact or infringe those rights – including conservation actions – that there be meaningful consultation and, in the case of any infringement, that the infringement be justified according to the Sparrow test. A balancing exercise that does not have the Constitution at its heart renders the conservation promises in LARP largely meaningless.

At various points, the RAC Document makes reference to the need to integrate aboriginal traditional knowledge in the regional planning process. While including aboriginal peoples and the traditional knowledge that they possess in the regional planning process is important for Alberta to be able to fulfill its constitutional obligations to protect aboriginal and treaty rights and for Alberta to have adequate

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information for implementing its conservation approach, references to integrating aboriginal traditional knowledge in the RAC’s approach to conservation planning are largely meaningless given the following:

 the overall scheme of the RAC Document is to promote and optimize economic growth of the oil sands, forestry, tourism and agriculture. Neither conservation nor aboriginal rights are given serious consideration in the proposed Outcomes or in the land‐use classification system;

 the RAC Document does not describe how aboriginal knowledge will be used in regional planning or conservation processes. Nor does it contain a methodology or demonstrable commitment to incorporate that knowledge. Nor does it contain any criteria, methods or thresholds for assessing the direct and cumulative impacts of existing, planned and reasonably foreseeable development on the meaningful exercise of section 35 rights or any criteria, methods, or thresholds for what is required to sustain those rights – both of which the First Nations have been asking for throughout the development of LARP;

 the RAC Document does not describe what baselines will be used in assessing the pace of development and cumulative impacts in the LARP region; and

 under the Land Stewardship Act, the Lieutenant Governor in Council can reject or amend any planning advice from the regional advisory councils or the land use secretariat. As such, any proposed integration of aboriginal traditional knowledge can be disregarded at the discretion of the Lieutenant Governor in Council.

The lack of meaningful consideration of conservation is also demonstrated by looking at the conservation tools available under the Land Stewardship Act. Specifically, nowhere does the RAC Document identify any of the range of statutory conservation tools (e.g. direct and indirect expropriation for conservation, conservation easements, conservation directives, stewardship units, etc.) created by the Land Stewardship Act for regional planning purposes in respect of the conservation areas proposed by RAC.

Rather, the RAC Document undermines conservation efforts in two ways. First, it prioritizes economic activities associated with resource development within the majority of the LARP area, even though a central purpose of its authorizing statute, the Land Stewardship Act, is to manage land‐use activities to meet the foreseeable needs of future generations of Albertans and aboriginal peoples. Second, rather than utilize authority under the Land Stewardship Act to compensate title holders for conservation efforts and to otherwise facilitate conservation, the RAC Document identifies the strategy to compensate aboriginal peoples for infringing their constitutionally‐protected rights. In other words, the RAC Document contemplates paying for the right to avoid

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seriously conserving land, whereas the Land Stewardship Act contemplates conservation.

The only time that “conservation strategies” are mentioned in the RAC Document is in the description of “conservation areas” at page 27, where the RAC Document states that aboriginal uses will be permitted where those uses will be consistent with overall conservation strategies. This is inconsistent with the constitutional promise of section 35. It is also important to note that the document does not describe how conservation objectives are to be selected. Nor does it describe the implementation and monitoring of those objectives.

2) Comments on Specific “Outcomes” & Conservation

As the main purpose of Objective 1 is to promote natural resources development, the First Nations note that Alberta’s resource allocation and regulatory regimes, insofar as they relate to the LARP area, will be modified to promote development rather than conservation or the protection of section 35 rights. Because the recommendations relating to aboriginal peoples are not tied to a regulatory regime, LARP will not have the same direct consequences for aboriginal peoples and rights as it does for the oil sands, forestry, agriculture and tourism.

The infrastructure and community development plans identified in Outcome 2 are predicated on rapid economic and population growth, not conservation. As the RAC Document does not create any thresholds for the achievement of objectives or for the assessment of the pace of development and cumulative impacts generally or in respect of section 35 rights, it is difficult to see how a conservation approach can be meaningfully applied to RAC’s desired infrastructure development. Furthermore, even though infrastructure projects – such as major transportation systems and high capacity transmission systems – are likely to have environmental, social and cultural impacts on aboriginal and treaty rights, the infrastructure strategies and plans in Objective 2.2 only minimally address the impacts of population growth and infrastructure on the environment and on section 35 rights in the LARP region and the involvement of aboriginal peoples in addressing those impacts.

The First Nations note that in Outcome 3, the RAC Document proposes to engage aboriginal people only in monitoring and reporting on issues relating to management systems. At no point in this outcome does RAC consider involving aboriginal people in the creation and design of management systems: for the environment’s natural processes and natural resources to be understood and for conservation to be seriously advanced, aboriginal knowledge and use of the land must be utilized and respected, not merely presented.

In Outcome 3 the RAC Document also fails to consider involving aboriginal peoples in the setting of appropriate baselines on which to base management systems – and by

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extension, conservation – decisions. Aboriginal people should be consulted regarding appropriate baselines and how their knowledge will be utilized in assessing changes, mitigating impacts and ensuring protection of aboriginal and treaty rights. The proposals under this outcome fall short of these.

In Outcome 4.2, the RAC Document proposes to develop an integrated reclamation land management plan in the mixed‐use resource area. It is inappropriate for this outcome, which relates to responsible and sustainable land uses, to consider aboriginal peoples only at the stage of reclamation. Moreover, the RAC document operates on the assumption that reclamation is acceptable and will be successful (again without considering reclamation in relation to the exercise of section 35 rights).

Furthermore, developing a reclamation plan to blanket the entire mixed use resource area (60% of the LARP area) demonstrates a failure to seriously address which lands are in more urgent need of conservation within that area, which lands are socially and culturally more important for the exercise of aboriginal and treaty rights, and other requirements under s.35(1) of the Constitution Act. Additionally, given that the land‐use classification system defines how competing uses are to be balanced within land areas, the proposal to meaningfully incorporate aboriginal knowledge provides no guarantees that conservation priorities will be effectively taken into account. Also, as noted above, the absolute and unfettered authority of the Lieutenant Governor in Council to reject planning advice renders the promise to establish conservation areas and management plans largely meaningless.

There is no mention of aboriginal peoples or rights in Outcome 5, which guides responsible stewardship for air and water. This undercuts the RAC Document’s purported attempt to involve aboriginal peoples and aboriginal traditional knowledge in the planning decisions, let alone conservation decisions.

Similarly, limiting the role of elders in Outcome 6 to be a tool for cultural diversity:

(1) minimizes the role that elders and aboriginal knowledge holders should play in the land‐use planning and land conservation process;

(2) minimizes the link between their information and the protection of treaty rights; and

(3) undercuts the purported effort to involve aboriginal peoples and aboriginal traditional knowledge in conservation efforts.

The proposal in Outcome 6 – to support aboriginal communities’ leadership to develop management procedures as appropriate to preserve and protect aboriginal peoples’ historic and ceremonial sites that are significant to aboriginal peoples – is exceedingly vague, particularly in light of the RAC Document’s priority on economic, infrastructure

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and resource development and so is unlikely to promote conservation of these sites. The proposal is also largely meaningless given the unfettered discretion of the Lieutenant Governor in Council to reject any such management procedures.

We note that the proposals in Outcome 7 for including aboriginal peoples in land management planning are insufficient to meet Alberta’s constitutional obligations towards aboriginal peoples, let alone seriously advance conservation in the LARP area. For example, the RAC Document does not acknowledge that Alberta must accommodate aboriginal peoples where appropriate and must justify all infringements of aboriginal rights in additional to consulting meaningfully with aboriginal peoples.

The proposal in Outcome 7 to balance aboriginal peoples constitutionally protected rights with the interests of all Albertans does not meaningfully advance conservation because it:

(1) fails to recognize priority allocation of resources to aboriginal peoples when balancing access to limited resources requiring conservation;

(2) fails to ensure no impairment or minimal impairment of section 35 rights or the justification of any infringement of aboriginal and treaty rights as required under the constitutional framework of Canada;

(3) fails to set appropriate baselines from which to assess such infringement of rights and the level of environmental and cumulative impacts;

(4) fails to acknowledge that the ability of aboriginal peoples to exercise traditional uses of the land may be linked to specific lands and territories, as well as tangible and intangible resources, which require conservation for the ability of aboriginal peoples to exercise traditional uses to be maintained;

(5) fails to recognize that intended land uses in mixed use areas are too broad and mutually exclusive to be incorporated in one single land class;

(6) provides no guidance regarding how traditional use information base is to be incorporated or used together with other scientific and socio‐economic data and how that information is to be safeguarded;

(7) proposes to involve aboriginal peoples at the stages of mitigation and reclamation rather than seriously considering conservation options such as limiting development or creating conservation easements or conservation directives as allowed under the Land Stewardship Act; and

(8) fails to recognize the ability of the Lieutenant Governor in Council to substitute its own balancing views under the Land Stewardship Act.

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We look forward to discussing these comments with you and to your response on the specific points that are included in this letter.

Sincerely,

Melody Lepine, Lisa King, Shaun Janvier, Director, Mikisew GIR Director, ACFN IRC Director, CPDFN IRC

cc: Chief and Council, MCFN Chief and Council, ACFN Chief and Council, CPDFN The Hon. Mel Knight, Minister, SRD Morris Seiferling, Land Use Secretariat The Hon. Diana McQueen, Chair, Regulatory Enhancement Task Force

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APPENDIX 1 – Joint Submission on the Regulatory Enhancement Program

Appendix 1

Athabasca Chipewyan First Nation Mikisew Cree First Nation Industry Relations Corporation Government and Industry Relations 110B -9816 Hardin Street Suite 208, 9715 Main Street Ft. McMurray, AB T9H 4K3 Fort McMurray, AB T9H 1T5

September 20, 2010

Alberta Environment Environmental Stewardship Environmental Relations 111 Twin Atria Building 4999 – 98 Avenue Edmonton, AB T6B 2X3

Attention: Alvaro Loyola, Senior Advisor, Aboriginal Relations

Canadian Environmental Assessment Agency 61 Airport Road NW Edmonton, AB T5G 0W6

Attention: Sheila Risbud, Aboriginal Affairs

Dear Mr. Loyola and Ms. Risbud:

Re: Proposal to Develop Athabasca Chipewyan First Nation (ACFN) and Mikisew Cree First Nation (MCFN) Traditional Land and Resource Use Management Plans (TLRUMP)

We are pleased to submit our proposal to develop TLRUMP for our First Nations. The TLRUMP concept builds on the Traditional Resource Use Plan concept that was tabled with Alberta in submission on the Land Use Framework, Lower Athabaca Regional Plan, and in respect to various regulatory applications (namely Shell’s Jackpine Mine and Pierre River Mine projects, and Total’s Joslyn North project). Our joint proposal provides further detail on the rationale for TLRUMPs and our estimate of the time and resources required to develop a TLRUMP. We look forward to a positive response from your departments. We would be happy to discuss this proposal with you and answer any questions that you might have.

1

Sincerely,

(original signed) (original signed)

Lisa King Melody Lepine ACFN IRC, Director MCFN GIR Director cc: ACFN Chief and Council MCFN Chief and Council Dave Bartesko, Land Use Secretariat

2

Athabasca Chipewyan First Nation Mikisew Cree First Nation Industry Relations Corporation Government and Industry Relations 110B ‐9816 Hardin Street Suite 208, 9715 Main Street Ft. McMurray, AB T9H 4K3 Fort McMurray, AB T9H 1T5

Proposal to Develop Athabasca Chipewyan First Nation and Mikisew Cree First Nation Traditional Land and Resources Use Management Plans (TLRUMP)

Submitted to:

Alvaro Loyola, Alberta Environment

Sheila Risbud, Canadian Environmental Assessment Agency

Submitted by:

Lisa King, Athabasca Chipewyan First Nation Industry Relations Corporation

Melody Lepine, Mikisew Cree First Nation Government and Industry Relations

September 20, 2010

1. Introduction

The Athabasca Chipewyan First Nation (ACFN) and Mikisew Cree First Nation (MCFN) are proposing to each individually develop Traditional Land and Resource Use Management Plans (TLRUMP). A TLRUMP would provide information necessary to understand the land and resource uses, interests and rights of the First Nations in Provincial and Federal land and resource management planning, decision‐making and consultation processes. This concept was first first provided to the Government of Alberta (Alberta Sustainable Resources Development) as a “Traditional Resource Use Plan” in the October 31, 2008 joint submission of MCFN and Chipewyan Prairie Dene First Nation (CPFN) on the Land Use Framework. In a letter to Alberta Environment and Shell Canada on December 18, 2009, ACFN asked whether the parties were prepared to work with and fund ACFN, prior to any project approvals on the Jackpine Mine Expansion and Pierre Rive Mine projects, on developing a TLRUMP in order to determine the resources on which ACFN relies to exercise their rights. Subsequent to that letter, Alberta Environment requested more information on the TLRUMP concept, and ACFN provided a brief proposal as an appendix to a letter dated February 1, 2010 to Alberta Environment and Shell Canada. AENV and CEAA have requested a more detailed proposal from ACFN and MCFN. This proposal for a TLRUMP includes the following: ‐ Study Purpose and Objectives ‐ Study Rationale ‐ Study Methodology ‐ Study Work plan ‐ Summary of TLRUMP Deliverables ‐ Timelines and budget ACFN and MCFN are presenting this proposal to AENV, CEAA, and potential Industry funders.

2. Study Purpose and Objectives

The purpose of the Traditional Resource Use Plan is to provide scientifically credible and culturally appropriate information on the land and resource requirements of ACFN and MCFN for the meaningful exercise of Treaty 8 rights now and into the future. Specific objectives of the TLRUMP study are to:

 Create an appropriate, culture‐group specific vision for what constitutes the conditions for the meaningful practice of Treaty 8 rights currently and into the future;  Identify the Valued Components (“resources or conditions”), tangible and intangible, that are central to the Aboriginal and Treaty Rights (“rights”) of the First Nations;  Identify criteria and culturally appropriate indicators that can be used to measure the First Nations’ ability to practice these rights; 2 ACFN and MCFN Proposal to Develop a Traditional Land and Resource Use Management Plan Draft for Discussion with Alberta Environment and the Canadian Environmental Assessment Agency, Sept. 20, 2010

 Examine the current nature and extent of the Valued Components in the First Nations’ Traditional Lands, and a historical baseline of these components;  Identify the current and likely pressures, including but not limited to industrial development on the Valued Components;  Predict the likely future nature and extent of the Valued Components in the First Nations’ Traditional Lands;  Identify broad land and resource management strategies, as well as possible mitigation tools, that can support and improve the continued meaningful exercise of Treaty 8 rights (e.g., key protected or conservation areas; hunting restrictions; setbacks; timing windows; among others);  Integrate the information into appropriate information and management tool formats (e.g., GIS; planning documents; management objectives for particular use areas or districts; community based monitoring and adaptive management strategies) for use in resource and land use planning, decision‐making and consultation processes; Developing the TLRUMP will require in‐depth community consultation, rigorous socio‐economic research, and tools for managing, analyzing, and communicating this information as explained in the methods section of this proposal.

3. Study Rationale

Current land and resource use planning and decision‐making (including regulatory EA processes) in Alberta do not analyze adequately the direct, indirect and cumulative impacts of development and land use on First Nations land and resource use, Aboriginal and treaty rights and interests. Project‐specific approaches to environmental assessment, especially in absence of an appropriate cumulative effects management framework, do not yield a comprehensive understanding of impact to the First Nations. These gaps are compounded by a lack of capacity in First Nations communities to bring forward credible and relevant information to these processes in a timely fashion. The result is often errors in decision‐ making, misunderstandings, and conflicts due to inadequate information. This is particularly troublesome in the Lower Athabasca Region given the sheer number of operating, proposed and potential oil sands development in the Traditional Lands of the two First Nations.

A TLRUMP is meant to be a tool facilitating more timely and effective integration of ACFN and MCFN information and interests into decision making and planning processes. This will result in greater capacity for each First Nation to provide critical inputs of information at all stages of the EIA/regulatory process, allowing EIA and consultation to proceed substantively at the same time, and establishing earlier in the process how Aboriginal and treaty rights may be impacted. Meaningful and adequate accommodation measures can then be built into the EIA mitigation process. The coherent TLRUMP and supporting studies are expected to increase the First Nations‐specific data consistency, timeliness and availability for proponents.

3 ACFN and MCFN Proposal to Develop a Traditional Land and Resource Use Management Plan Draft for Discussion with Alberta Environment and the Canadian Environmental Assessment Agency, Sept. 20, 2010

Developing a TLRUMP would have benefits for Crown consultation, land and resource use planning, environmental impact assessment, regulatory stages of approvals, cumulative effects monitoring and management, and other elements of decision‐making. Benefits include:

 Timely data that is accessible by project for government and proponents;  Data consistency;  A streamlined consultation process; and  Increased capacity for ACFN and MCFN.

4. Study Methodology

Geographic scope of study

The studies will be limited to impacts on traditional use and practices within ACFN and MCFN traditional lands, as well as mobile resources (e.g., water, air, wildlife) that seasonally reside within or travel through traditional lands that may be impacted by activities outside those lands.

Temporal scope of study

A principle of good EIA practice is that the baseline conditions wherever possible should be those conditions that were present prior to industrial development occurring (in this case, around 1965), or where that data is not available or sparse, an examination of trends in conditions over time somewhere in between “pre‐development” and the “present case” should be used. This study will ground the framework as far back in time as possible. Where data gaps are evident and assertions of change are uncertain, these will be identified and noted as limitations of the analysis.

Issues scope

The focus of the TLRUMP differs from that of many other impact assessment studies by focusing on the intersection of impacts on rights and impacts on resources.

The First Nations maintain that each have Treaty and Aboriginal rights protected by section 35 of the Constitution Act, 1982. For the purposes of the study, Treaty rights include hunting, fishing, trapping and gathering. This includes incidental rights that support the meaningful practice of the treaty right, including sufficient quality and quantity of required traditional resources within traditional lands. For example, the right to hunt can only be meaningfully practiced when there is adequate amounts of healthy game (e.g., within the range of natural variation for the species; healthy as evaluated from the perspective of the harvester) within areas that are accessible to harvesters.

Identification of First Nations‐specific limits of acceptable change for key “rights‐based resources” is thus central to both EIA and Crown s.35 consultation.

In addition, the practice of these rights may be influenced by a variety of other factors related to environmental impact concerns, such as a lack of faith in the health associated with consuming country foods. Thus, while these underlying Treaty and Aboriginal rights and the resources required to

4 ACFN and MCFN Proposal to Develop a Traditional Land and Resource Use Management Plan Draft for Discussion with Alberta Environment and the Canadian Environmental Assessment Agency, Sept. 20, 2010

meaningfully practice these rights are at the foundation of the proposed TLRUMP, the First Nations will take a broader perspective on what the exercise of those rights mean in terms of social, economic, and cultural health and well‐being of each First Nation. A community vision concerning the relationship between the land and the people (including health, well‐being and culture) is required in order to define this broader perspective. The community vision will provide the basis for an assessment framework for linking impacts to traditional resources to impacts to culture, community health and well‐being.

Project capacity and staff

A committee from each Nation will be formed to provide input into key research stages, to work closely with the interdisciplinary research team to understand the key issues of concern, to advise on liaising with the remainder of the community and on the selection of participants for workshops, interviews (and fieldwork).

We anticipate that an interdisciplinary research team consisting of people with social science, landscape ecology, GIS mapping expertise, traditional use practitioners, ecology, land and resource planning and project management expertise would be key to successful completion of the TLRUMP

5. Study Work Plan

The First Nations propose a four phase Work Plan for this study proceeding from high‐level planning and visioning, through detailed data collection, to the production of tools and deliverables.

pre‐study primary data planning collection

visioning traditional resource use plan and rights assessement database

Phase 1: Pre­Study Planning In this phase, we will build the project team, hold government to government meetings, agree on project methodology, set up data management and communications protocols, define research protocols (e.g., Traditional Knowledge or Ethics Protocols) and finalize the study scope.

5 ACFN and MCFN Proposal to Develop a Traditional Land and Resource Use Management Plan Draft for Discussion with Alberta Environment and the Canadian Environmental Assessment Agency, Sept. 20, 2010

Phase 2: Visioning Phase 2 focuses on developing a community vision for the Traditional Land Use Plan. Sessions in Fort Chipewyan, Fort McMurray, Fort Smith and Edmonton will focus on culture and well‐being in relation to traditional resources. For example, what vision do people have for continuing their way of life? What are the key practices, resources and relationships needed for health and well‐being to be maintained? The vision that is identified through these sessions will be used to identify the first draft of the core valued components for the TLRUMP.

A research and gaps analysis exercise will be done to surface any existing knowledge and data related to these valued components, the result of which will be a State of Knowledge report. Sources will include:

 Collection and analysis of existing secondary data from environmental assessments. This will involve drawing together all existing completed environmental assessment reports on operating and proposed developments in the region. Analysis of the reports will focus on the core areas of focus, such as traditional use, food security issues, culture and social and economic impacts, with reports and data mainly from consulting companies hired by the oil sands producers.  Collection and analysis of existing secondary data from internal community sources. This will involve drawing together all the data that has been collected in the past by consultants.

Full‐day workshops, open to all First Nation community members, are then envisioned again in Fort Chipewyan, Fort McMurray, Fort Smith and Edmonton. The Project Team will provide short presentations about the valued components, criteria and indicators that have emerged through the vision sessions, and the “State of Knowledge” report.

Community members can provide input on whether these are the culturally relevant and accepted valued components to understand the present and trends in the health of the environment and the associated ability to exercise land‐based Aboriginal and Treaty rights. They will then be asked to suggest management objectives and planning tools (e.g., zoning, restricted areas, among others) for each valued component.

These visioning sessions will allow community members to provide input on the accuracy of the State of Knowledge report, to review proposed study scopes, parameters, and methods, and to identify any additional work being conducted (or already completed) by any other stakeholders in the region (e.g., developers, AENV, and CEMA).

The key goal of this phase will be to build a preliminary model for the TLRUMP, to be tested and validated in the next phase.

Phase Three: Primary data collection and analysis Data will be gathered on selected valued components, criteria and indicators related to the TLRUMP. This will include surveys, interviews, focus groups, TUS and TEK inputs, mapping and modelling exercises. The focus of this work will be to establish the conditions needed for the practice of rights, and gather the data on all the key valued components that were identified in earlier phases.

6 ACFN and MCFN Proposal to Develop a Traditional Land and Resource Use Management Plan Draft for Discussion with Alberta Environment and the Canadian Environmental Assessment Agency, Sept. 20, 2010

The focus of the interviews, focus groups and research in this stage will be to establish the geographic scale for resources for practicing rights, the required condition of the resources, and the future strategies that might need to be implemented to protect rights. Research in this phase will:  Identify why the protection of resources is culturally important to both First Nations, including ACFN and MCFN defined concepts of environmental stewardship;  Identify what pressures (e.g., road access and habitat fragmentation) have been threats to the meaningful practice of Treaty 8 rights;  Identify what resources are integral to the meaningful practice of Treaty 8 rights;;  Integrate the information into an appropriate management tool format (e.g., GIS; planning documents) for use by decision‐makers;  Determine the socio‐cultural, ecological and economic conditions (including desired conditions of manageable or acceptable change) that support the meaningful practice of Treaty 8 rights for each identified resource currently;  Recommend landand resource management strategies, including monitoring, that would ensure the continued meaningful exercise of Treaty 8 rights (e.g., protected or conservation areas; hunting restrictions; setbacks; timing windows; etc.); and,  Develop Aboriginal and treaty rights enhancement strategies and a suite of mitigation measures for the exercise of rights that are grounded in cultural realities. Phase Four: Traditional Land and Resource Use Management Plan (TLRUMP) The purpose of the TLRUMP is to provide credible, sufficient, defensible, and reliable information on the land and resource needs of the First Nations for the meaningful exercise of their Treaty 8 rights within their Traditional Lands now and into the future. At this point, the TLRUMP will be presented to the communities, with a focus on reporting on the current state of the traditional resources. This effort will be twinned with proactive development of strategies and tools for maintaining the health of the traditional resources of the region that people depend on for practice of Aboriginal and treaty rights. A variety of management options will already have been developed, which will then be field tested with the communities, and negotiated in government to government tables, where appropriate. For example, where there is an existing threat to traditional resources, there may need to be both government and community strategies in place for management and mitigation.

6. Summary of TLRUMP Deliverables

The specific outcomes of developing the TLRUMP will include:

 Baseline and trend dataset for valued components related to traditional resources, with qualitative and quantitative components;  A State of Knowledge report on the valued components that have been community selected, bringing together data and knowledge from disparate sources;  A pressure‐state‐response framework from the cultural framework that illustrates pathways of change. This will enable future impact assessments to accurately model their own impact pathways and predict changes;

7 ACFN and MCFN Proposal to Develop a Traditional Land and Resource Use Management Plan Draft for Discussion with Alberta Environment and the Canadian Environmental Assessment Agency, Sept. 20, 2010

 Mapping of areas of special sensitivity (confidentiality provisions may apply to external use); and,  Replicable, community‐accepted methods of assessment (thus applicable for both future project‐specific and cumulative effects assessments).

The primary deliverable to Government will be a Traditional Land Resource Use Plan Management and Assessment Framework that includes the following:

 MCFN and ACFN Guidelines for assessing Traditional Land and Resources. This guidance document will provide clear expectations for proponents regarding the process for accessing traditional land and resource data from MCFN and ACFN, as well as guidelines for quality traditional use, socioeconomic and ecological research;  Management objectives, criteria and thresholds for traditional lands and resources; and  Management and mitigation options for traditional lands and resources.

In order to enable implementation of the TLRUMP, it is necessary to develop internal capacity within ACFN and MCFN. This will consist of an internal database, data management procedures and formalizing functional roles within each organization. While this “deliverable” is internal, we can provide a report to our external funders on the structure of this system (the guidance document mentioned above).

8 ACFN and MCFN Proposal to Develop a Traditional Land and Resource Use Management Plan Draft for Discussion with Alberta Environment and the Canadian Environmental Assessment Agency, Sept. 20, 2010

7. Timelines and Budget

Provided the required funding is made available, this project will be completed within two years, with the following schedule, deliverables and updates to funders. The cost for each individual First Nation (ACFN and MCFN) to complete a TLRUMP specific to their First Nation is anticipated to be $1,435,500 (total budget of $2,871,000).

Project Estimated Deliverables Consultants Community Project Phase/Step Timeline engagement Manager Phase 1 Month 1 Project team $10,000 0 $5,000 formation Phase 2 Months 2‐4 Vision sessions $25,000 $100,000 $15,000 State of $60,000 0 $15,000 knowledge Months 5‐8 report Months 8‐10 Testing of VCs, $25,000 $100,000 $10,000 criteria and indicators with communities Months 7‐16 Design of dataset $200,000 $50,000 $50,000 for VCs, criteria and indicators Phase 3 Months 15‐ Community data $300,000 $50,000 $15,000 19 reports and management systems Phase 4 Months 18‐ TLRUMP $150,000 $100,000 $25,000 24 planning and validation Subtotal of costs $770,000 $400,000 $135,000 $1,305,000 Administration (10%) $130,500 Total project value per First Nation $1,435,500 x 2 $2,871,000

9 ACFN and MCFN Proposal to Develop a Traditional Land and Resource Use Management Plan Draft for Discussion with Alberta Environment and the Canadian Environmental Assessment Agency, Sept. 20, 2010

Appendix 2 Treaty 8 Alberta Chief’s Position Paper on Consultation (September 30, 2010)

Appendix 2

TREATY 8 FIRST NATIONS OF ALBERTA To protect, promote, bring to life, implement and sustain the true Spirit and intent of Treaty No. 8 as long as the sun shines, the grass grows, and the rivers flow. HEAD OFFICE SUB OFFICE Woodland Cree Nation c/o Santa Fe Plaza General Delivery 18178 – 102 Avenue Cadotte Lake, AB T0H 0N0 Edmonton, AB T5S 1S7 Telephone:“To 780.629.3803 Protect and PreserveTelephone: (780) Treaty 444-9366 No. 8” Fax: 780.629.3842 Fax: (780) 484-1465

September 30, 2010

Prime Minister Stephen Harper Grand Chief Charles Weaselhead Office of the Prime Minister Treaty 7 Management Corporation 80 Wellington Street Suite 101, 12111 – 40th Street SE Ottawa K1A 0A2 Calgary, AB T2Z 4E6

Premier Ed Stelmach Grand Chief Ernest Gadwa Office of the Premier Confederacy of Treaty Six First Nations 307 Legislature Building Suite 204, 10310 – 176 Street 10800 – 97 Avenue Edmonton, AB T5S 1L3 Edmonton, AB T5K 2B6

Honourable Len Webber Minister of Aboriginal Relations 203 Legislature Building 10800 – 97 Avenue Edmonton, AB T5K 2B6

Re: Treaty 8 Alberta Chiefs’ Position Paper on Consultation

Elders and Chiefs from the Treaty 6, 7 & 8 First Nations in Alberta gathered from April 12 to 14, 2010, from June 2 to 4, 2010, on August 24 and 25, 2010, and Treaty No. 8 Alberta Chiefs met on September 20th, 2010 to discuss consultation. Based on these deliberations, our objectives in this Position Paper (Position Paper) are threefold:

1. To set out our common consultation objectives, interests and principles including livelihood participation and greater participation in decision making;

2. To discuss our concerns with Alberta‟s current approach to consultation and the resulting general failure to respect our Treaty rights (in Appendix A); and

3. To provide our views (in Appendix B) of what we consider to be the core elements of a new, mutually developed, approach to consultation.

As stated in the letter of September 3, 2009 to the Premier, in the event that our concerns and interests are not satisfactorily addressed, we will take steps to develop our own province-wide First Nations‟ approach to consultation as an alternative to Alberta‟s First Nations Consultation Policy on Land Management and Resource Development (“Consultation Policy”) and related guidelines. Some First Nations have, in fact, already developed their own consultation protocols. However, before more First Nations take this step, we the undersigned Chiefs of Treaty 8, invite your Government to enter into a negotiating process involving Alberta, Canada where appropriate, industry representatives and Alberta First Nations with a goal of jointly developing an agreement, not a policy, on consultation. This Position Paper would serve as our opening position in such negotiations. We note that a similar negotiating process has recently met

with success in Nova Scotia were the provincial government, Canada, and First Nations have ratified an agreement on consultation.

INTRODUCTION:

1. Treaty Centred Consultation

A core concern emerged from our discussions: Treaty No. 8 is the foundation of our relationship with the Crown. As Treaty 8 First Nations, we have the honour of being entrusted with these lands by our ancestors, and the obligation to future generations to be responsible stewards of these lands and our Treaty. It is through our Treaty that First Nations have maintained our historic and ongoing connection to our lands.

Failure to honourably and meaningfully consult with First Nations is disrespectful of our connection to the land as well as to our Treaty that reflects this connection. We need to change Alberta‟s record in this regard. For both Alberta and First Nations to continue to benefit from the Treaty, we must mutually respect and honour the Spirit and Intent of the Treaty No. 8.

We look to the Treaty as having its own life. The quintessential phrase from our oral history framing the Treaty is: “as long as the grass grows, the sun shines, and the rivers flow”. This is a reflection of the living nature of the Treaty. Our Treaty can and will adapt over time, but we must always ensure that the core elements of the Treaty is upheld. Consultation is the forum through which we can ensure this balance takes place.

Our Nations also have protocols and ceremonies that we use to understand, maintain and balance the intent of the Treaty. Our protocols and ceremonial traditions give us the tools and legitimacy within our territories to make decisions on how we treat the land and its resources. Our processes pass on critical teachings and a management system based on generations of knowledge and information about our lands. These traditional processes vary from Nation to Nation and are key to interpreting the Treaty; further, these processes cannot be replicated by the Crown. However, Alberta‟s approach to consultation has not involved any significant attempt to incorporate our protocols and ceremonies into a mutually-agreeable approach.

Our Nations do not look at consultation as just a series of land use decisions, but also at the “big picture” of our relationship with Alberta and Canada. Consultation is about ensuring balance. Our perspectives and positions are guided by a number of different interplaying factors regarding our members, communities, economic interests and connections with the land. We do not see our traditional lands as set aside for the exclusive use of „Albertans,‟ but rather to be shared with all people within Treaty 8 borders. We want to ensure our people and communities can sustain themselves with the same access to opportunities that others are entitled to and, at the same time, ensure that our Treaty and way of life is protected.

Our Treaty needs to be fulfilled for our people. We cannot have our rights defined so narrowly so as to make our rights useless or meaningless. Alberta needs to identify strategies with First Nations to ensure Treaty rights and developments are balanced in a mutually acceptable manner. There are areas of particular concern to many Nations that will require a detailed level of planning, discussions, and accommodations to ensure that Treaty rights continue to be viable and meaningful.

First Nations have expressed many concerns, on many occasions, about Alberta‟s approach to consultation since the introduction of the Consultation Policy by Alberta in 2005. We have experienced a

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negative form of consultation by which Alberta has attempted to avoid responsibility while maintaining the appearance of „consulting‟ with First Nations. This needs to change. We have signed on to the Protocol Agreement and engaged in the Consultation Policy review process because we want positive and mutually beneficial change. It is incumbent on Alberta to demonstrate, by changing its own approaches and attitudes, that we are not misplacing our optimism in a renewed relationship.

Although our primary relationship is with the Federal Crown, Alberta and First Nations must address the reality that we share the same lands and home. We can only mutually succeed if we are willing to work together. Consultation is the tool to ensure mutual success. It will only be successful if we attempt to address each other‟s issues in a manner that will get us closer to our goals.

The honour of the Crown and the Treaty relationship are sources of the duty to consult and accommodate which also require respect for, adherence to, and recognition of the Treaty. Any approach to consultation that is not grounded in the Treaty relationship cannot achieve the fundamental objective of reconciliation that has been called for by the Supreme Court of Canada. As the Supreme Court of Canada made clear in the Taku River and Haida cases, at paragraphs 24 and 45 respectively:

The Crown‟s honour cannot be interpreted narrowly or technically, but must be given full effect in order to promote the process of reconciliation mandated by s. 35(1).

* * * The controlling question in all situations is what is required to maintain the honour of the Crown and to effect reconciliation between the Crown and the Aboriginal peoples with respect to the interests at stake.

Any approach to consultation going forward must recognize that our Treaty rights are protected by the Constitution. With respect, Alberta and Canada cannot simply pay lip service to those rights: consultation and accommodation processes must respect and accommodate our rights. While we are open to discussing how we can protect our Treaty rights, we are not open to an approach unilaterally developed by Alberta which ignores those rights in practice.

Our strong emphasis on the Treaty in the context of consultation is not simply a matter of principle or law – it is also a point of great practical importance for First Nations. Across Treaty 8 Alberta, First Nations are gravely concerned about the continued viability of our Treaty rights and our traditional ways of life. Resource development, urban growth, and other forms of development around Alberta are threatening First Nations‟ ability to hunt, fish, gather and trap. This has placed enormous stress on First Nation communities. Growth and development has increased pressures on the remaining areas of Crown land in these Treaty areas diminishing First Nations‟ ability to exercise our Treaty rights. The massive existing and planned development of the oil sands in the Treaty No.8 area has already affected and will continue to affect, the ability of those First Nations to exercise their rights. First Nations across the province face increasing pressures on their reserve lands, including the water resources within these lands, from increased resource development and/or the growth of neighbouring municipalities.

Respect for the Treaty goes well beyond being a matter of principle; respect for the Treaty is critical to the long term survival of First Nations‟ culture, way of life, and the well-being of our communities. We are troubled that in correspondence, many of our First Nations are told by Alberta that, essentially, our Treaty did not guarantee that our traditional ways of life would be maintained forever. We recognize that development will continue to take place. However, Alberta‟s approach is often selective and ignores the promises that were made in our Treaty. A fair “balancing” of rights and interests has to provide for the

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meaningful exercise of our Treaty rights in the face of development, as well as, ways in which our First Nations can benefit from the development that does come.

The United Nations Declaration on the Rights of Indigenous Peoples also lends moral force to our call to Alberta and Canada to respect and adhere to the Treaties. The Declaration was broadly supported by 143 countries and acknowledged that “treaties, agreements and other constructive arrangements, and the relationship they represent, are the basis for a strengthened partnership between indigenous peoples and States.” Accordingly, the Declaration affirmed in Article 37(1) that:

Indigenous peoples have the right to the recognition, observance and enforcement of treaties, agreements and other constructive arrangements concluded with States or their successors and to have States honour and respect such treaties, agreements and other constructive arrangements.

The Declaration articulates certain principles that are paralleled in the Canadian legal tradition. It is well established that the Treaties are sacred agreements and that pursuant to the honour of the Crown, there is a requirement to respect and adhere to the terms of the Treaties.1

In addition to the discussion of the principles of consultation and other related matters in this Paper, First Nations also call on Alberta and Canada to do more, in cooperation with First Nations, to promote an improved level of awareness and understanding of our Treaty, including potentially:

Treaty Day - The creation of a Treaty Day in Alberta to acknowledge the importance of our Treaties (T6, T7 & T8) to all Albertans and to increase the level of public understanding that the Treaties relationship between First Nations, the Crown and society in general, is fundamental to living in Alberta because our Treaties are sacred living documents that remind us where we‟ve been and where we should be going.

Treaty Commissioner - A commitment by Alberta to work with our First Nations and the Government of Canada to create a trilateral process, developed with and overseen by an independent Treaty Commissioner, to promote and work towards an improved and common understanding of Treaty No. 8 in Alberta.

2. Challenges Created by Alberta’s Approach to Consultation to Date

A second theme also emerged from the meetings that pose a significant challenge for the review of the Consultation Policy. There is a pervasive sense of scepticism among our First Nations - many feel that Alberta‟s leadership and officials do not understand Treaty No. 8 and, therefore, do not have the political will to honour the Treaty and the Crown‟s duty to consult and accommodate. Alberta has acknowledged the Treaty in the text of the Consultation Policy and the Protocol Agreement; however, far more often than not Alberta‟s actions have failed to demonstrate respect for the Treaty and a genuine intention to fulfill the Crown‟s duty to consult and accommodate.

Our sense of scepticism stems from First Nations‟ experiences during the development of the Consultation Policy in 2005 and Alberta‟s approach to consultation since 2005. First Nations at the April, June, August, and September meetings this year expressed widespread disbelief that in 2010 it is still necessary to talk to Alberta about implementing the principles of Mikisew Cree First Nation v.

1 R. v. Badger, (1996) 133 D.L.R. (4th) 324 (SCC), para. 41.

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Canada (“Mikisew”)2, a decision released by the Supreme Court of Canada in 2005. Alberta ought to have immediately revisited and revised the Consultation Policy in 2005 to ensure that it complied with Mikisew. “Better late than never” is not good enough to uphold the honour of the Crown. While there is room for debate about the meaning and implications of Mikisew and other decisions, what is of the greatest concern to the First Nations is that Alberta, in developing its consultation approach, has unilaterally decided what those cases mean in terms of consultation.

Our scepticism and mistrust are also the result of our collective practical experiences of trying to consult with Alberta. No matter what the Consultation Policy says, and no matter what the courts say about the Treaty and the duty to consult and accommodate, in practice Alberta has adopted the narrowest possible interpretation of the Treaty and the most minimal application of the duty to consult. Since 2005, it has been the nearly universal experience of First Nations that Alberta‟s approach to consultation rarely, if ever, involves anything more than notice (often at a late date), some information, and perhaps a meeting or two to fill in the Crown‟s consultation log. Meaningful consultation is exceptionally rare and accommodation has been entirely absent. Alberta‟s justification for this approach has been that it must “balance” First Nations‟ rights and concerns with the interests of the broader public. On the ground, this has meant that our Treaty rights are consistently trumped by the economic interests of government and industry. There has been no true balancing of interests. You cannot achieve reconciliation when terms are imposed by one side based on solely on the interests of the broader public.

On numerous occasions, First Nations have sought to enter into good faith consultation with Alberta on consultation matters including but not limited to: First Nation water rights in the context of water management and allocation; fish and wildlife management; development of the Land Use Framework, and subsequently the LARP and SSRP; the process for conducting Environmental Assessments; various oil sands policy reviews; and forestry issues. In those consultations, the input and suggestions of the First Nations on both the procedural and substantive aspects of our rights have been ignored or downplayed by Alberta.

There is no legal impediment to making some of the changes to the consultation processes sought by our First Nations. Rather, Alberta has simply decided that its approach is correct, or at least that it has more resources than First Nations to litigate these issues if challenged in court. A good example of Alberta‟s troubling approach is in respect of the Land Use Framework (“LUF”). Many First Nations dedicated significant time and resources to provide Alberta with input on the LUF. Nonetheless, Alberta largely ignored that input, approved the LUF, then proceeded to produce a “response” to First Nations‟ concerns and input well after the fact and in direct contradiction to the principle in law and in the Consultation Policy that consultation will occur in good faith and before decisions are made. Further, in respect of LARP and SSRP, and over the objections of the affected First Nations, Alberta simply imposed a consultation approach. This was done despite the fact that certain First Nations actually provided their suggestions on how consultation ought to occur and on what issues needed to be addressed during the development of the LUF. This sort of approach to consultation does not further reconciliation. Rather, it furthers the distrust and cynicism of the First Nations.

Those problems have only been exacerbated by Alberta‟s decision to end funding for Traditional Use Studies and significantly reduce core consultation funding to First Nations for 2010-2011, even as the number of project specific and general consultation matters for which Alberta purports to consult continues to increase. It is simply unrealistic for Alberta to expect First Nations to hire, train and retain

2 2005 SCC 69.

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competent staff without realistic, long-term funding, particularly given the volume of consultation in which First Nations are expected to participate.

It is amidst this difficult climate of scepticism, doubt and growing mistrust that the Treaty 8 Alberta Chiefs has developed this Position Paper. First Nations and Alberta must build a new and better relationship on the foundation of our Treaty. To move in that direction, Alberta must take two concrete steps: 1) enter into negotiations with First Nations to reach a new agreement on consultation that incorporates the central points of this Position Paper, and 2) honour the Treaty and the Crown‟s duty to consult and accommodate. Where Alberta disagrees with any of the points raised in this Paper, we expect Alberta to identify the points of disagreement and to discuss them in good faith. A key concept of consultation is for the parties to hear each other‟s views and to try to understand and address them. This cannot be done, as has been the approach in the past, by Alberta simply declaring that it has met some of the First Nation‟s concerns without actually responding to First Nations‟ input or meeting and discussing why, in the First Nations‟ view, concerns have been not been addressed.

The September 3rd, 2009 letter indicated that any new approach to consultation must fairly and adequately reflect the core principles of Mikisew and other relevant cases. The letter set out some specific principles from Mikisew which represent the minimum standard for consultation. It is not necessary to repeat those principles here except to say that they remain part of our position. Elders and Chiefs from around Alberta met at the April 12-14, 2010 Consultation Meeting where Alberta‟s Draft Policy Discussion Paper was reviewed and the consensus was that Alberta‟s attempt to incorporate the principles of Mikisew is seriously deficient. To begin with, the Draft Policy Discussion Paper is premature because it was developed prior to Alberta receiving the input of First Nations through the Consultation Policy review process and this Position Paper. The exclusive focus on Mikisew principles is also inadequate. Further, Alberta‟s restatement of the Mikisew principles are selective, often qualified or cast in a context that is favourable only to Alberta and which departs from the intent of the principles as set out by the Supreme Court. First Nations cannot accept policy efforts to water down, soften, or otherwise diminish the principles of consultation and accommodation as set out in the case law.

In addition to the Mikisew principles, any new approach to consultation must address the principles and issues discussed below. We have also provided a model process for consultation that reflects the principles of consultation and should serve as the basis for any new consultation guidelines. This model process is set out in Appendix B to this Position Paper.

KEY CONSULTATION OBJECTIVES OF THE FIRST NATIONS

The objectives of our First Nations in respect of consultation and accommodation are, at a minimum, the following:

1. To maintain and protect our way of life, including our history, culture, language, tradition and economy, all of which are inextricably connected to our lands (reserve lands and traditional lands);

2. To ensure that we have the capacity and opportunity to build, enhance and maintain, a strong and secure culture, language, traditions and economy connected to our lands (reserves and lands within our Traditional Territories), our inherent and Treaty rights, and the history of our Peoples;

3. To ensure the security and protection of our constitutionally-protected rights – that we have a meaningful opportunity to exercise those rights now and in the future;

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4. To ensure the meaningful participation of our First Nations in decision-making processes related to the planning and management, use and disposition of the lands and resources throughout our Traditional Territories and with respect to potential impacts on our reserve lands;

5. To ensure that we have an equal opportunity to share in the wealth of the Province – through capacity and training measures relevant to our People, through the acquisition of project-related benefits (award of jobs and contracts and various forms of participation in project benefits), and through more general measures, such as revenue sharing, to ensure that we receive an equitable share of the wealth of the Province (related to the fees, incomes, and economic benefits that are derived from resource extraction within our Traditional Territories); and

6. To enable our First Nations to attain and maintain a level of economic, social and political self- sufficiency, as individuals and as distinct Peoples, to standards that are at least equal to those prevailing in the rest of Canada;

With respect to point 6 in particular, we seek to ensure that there is a proper balance between protection of our rights and the environment and ecosystems on which our Treaty rights rely, and responsible industrial development, urban growth, and other forms of development.

While it is true that the courts have called for a balancing of various interests, that balancing cannot mean that the “public interest” or “economic goals of the Province” trump the protection and exercise of our Treaty rights. In other words, Alberta must always be mindful of the fact that the duty to consult and accommodate is a constitutional obligation that must take precedence over other interests.

This is not to say that there cannot be dialogue and a genuine attempt to work out a mutually acceptable approach to dealing with First Nation rights and interests. Indeed, this is why we are calling on Alberta to negotiate a new agreement on consultation. However, whether or not Alberta is serious about working together with First Nations to achieve a meaningful level of protection of Treaty rights depends entirely on whether or not we share a common objective. Alberta‟s approach to consultation is focused on attempting to minimize the importance and significance of First Nation rights and interests and “court proof” Alberta against any challenges to decisions it has made.

What is particularly troubling and disappointing is that while Alberta purports to work with our First Nations on consultation issues, Alberta continues to make decisions (grants of tenure and other dispositions, project approvals, adoption of legislation and policy) which adversely affect and infringe the rights and interests of our First Nations. Even more troubling is the fact that Alberta has simply refused to meaningfully engage with First Nations on critical issues such as revenue sharing, water allocation, fish and wildlife management, changes to environmental and regulatory approval processes, and other fundamental issues.

The principles of consultation set out in this Paper also apply equally to the Government of Canada regarding any federal initiatives, projects, regulatory processes or other decisions that have the potential to impact First Nation‟s rights and interests. On a similar note, many First Nations in Treaty No. 8 Alberta have traditional territories that include portions of the Northwest Territories, Saskatchewan and British Columbia and/or are signatories to Treaty No. 8 that extend into these other jurisdictions. Accordingly, the principles set out in this Paper also apply to any decisions or actions taken by those other governments that may adversely impact our First Nations‟ rights and interests.

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INTERESTS OF OUR FIRST NATIONS

Our First Nations share the following key interests, namely, ensuring that adequate consultation and accommodation includes:

That all processes are structured so that the Province is not the party that can make decisions without being required to take into account our rights and interests in those decisions and without taking into consideration our procedural concerns about consultation.

The full protection of our Treaty and inherent rights now and for future generations.

Protecting the use and enjoyment of our reserve lands and lands within our, Traditional Territories, and lands acquired pursuant to TLE entitlements and other land claims, for present and future generations.

Achieving greater participation in the social and economic benefits flowing from development.

Protecting, preserving, encouraging and enhancing the cultural, social, economic and environmental connection of our First Nations to lands and resources.

That the regulatory review of projects properly incorporates the procedural and substantive concerns of our First Nations through all phases – from the early conceptualization and design of the process through to decision-making, monitoring, enforcement and reclamation.

That any consultation process properly takes into account the legal principles recognized by the courts and that accommodation options allow for the full range of First Nations‟ concerns to be taken into account in decision making.

Development of a forum for broader economic, social, and environmental issues to work with Alberta and Canada in addressing and developing solutions to these issues, while respecting the Federal, Provincial, and First Nations jurisdictions.

That our First Nations have full information to assess potential impacts of Crown decision making on our rights and that our First Nations play a meaningful role in determining what information is required by the Crown, Industry and First Nations to determine such impacts.

That traditional knowledge is respected and incorporated into decision making.

That any decisions do not impair, or infringe, the rights and interests of our First Nations.

When such an infringement occurs, accommodation of the infringement will be in the interest of the effected First Nation.

That industrial development, urban growth, and other kinds of economic development take place in a way which minimizes the direct, indirect and cumulative social, health, cultural, economic and environmental impacts on our First Nations‟ rights and on our communities.

That our First Nations benefit socio-economically from any development that does take place – both in terms of direct project benefits as well as in sharing the wealth of the Province.

In addition, First Nations recognize that consultation requirements may be different among our First Nations depending, among other things;

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on the potential impacts of a proposed development on the exercise of our rights, the severity and duration of the impacts, the proximity of a First Nation to a large urban centre, a First Nation‟s perspective on the significance or importance of the rights affected, the proximity of a First Nation to large scale proposals, the extent of existing and planned development in the vicinity of the area, cumulative impacts on our rights, the history and culture of our First Nations, and the nature of existing development and other related factors.

It is also obvious that consultation will be more complex in relation to some kinds of development (such as mines, agriculture, forestry, oil sands and conventional oil and gas projects, urban regional planning, water and land management planning, hydro electric generation, transmission lines, nuclear power, and infrastructure projects) than it is for other kinds of development.

As noted earlier, any adequate approach to consultation must recognize and reflect these differences in relation to required funding, the triggers for consultation, capacity and the way in which consultation is carried out. For example, projects requiring an assessment under Environmental Protection and Enhancement Act (“EPEA”) or Canadian Environmental Assessment Act (“CEAA”) will normally require more time and resourcing than other kinds of projects. Moreover, guidance needs to be given to decision makers to determine the level of consultation required in relation to potential impacts. Further, Alberta has to take significant steps to improve key policy and legislative initiatives, such as the current review of the water allocation system and development of regional land use plans, to build First Nation participation into the process so that major studies and reports are not undertaken based on scoping and terms of reference that are not broad enough to consider First Nation rights and concerns. Consultation with First Nations must occur at the earliest possible stage in the process of project development and not be left as a footnote to be addressed in the final stages of such processes.

KEY PRINCIPLES

As explained in more detail below, our approach is based on the key principles set out in the decided cases on consultation and accommodation and Treaty rights: 1. The Treaty is not a finished land use blueprint (Mikisew);

2. Consultation is an ongoing process and is always required (Haida);

3. Consultation is a “two-way” street with obligations on each side;

4. Consultation and accommodation are constitutional obligations (Kapp);

5. When the duty is triggered, First Nations have a clear constitutional right to Crown performance of that duty (Haida, Mikisew);

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6. The duty to consult applies to a broad range of Crown actions, initiatives and decisions, including Crown officials charged with developing regulations and legislation that has the potential to impact First Nations rights and interests (Haida, Delgamuukw, Tsuu T’ina Nation)3;

7. Claimed Treaty rights can give rise to the Crown‟s duty to consult and accommodate. The Crown has a duty to assess the strength of claimed rights and consult and accommodate accordingly (Marshall, Sioui, Sundown, Simon). This point is addressed in more detail below;

8. First Nations‟ input must be seriously considered, substantially addressed and, as the context requires, accommodation may be necessary (Mikisew, Halfway River);

9. Stakeholder processes are not sufficient to discharge the Crown‟s duty to consult (Mikisew) nor are public processes open to First Nations, such as participation in Public Hearings (Dene Tha’);

10. The Crown has a positive duty to provide full information on an ongoing and timely basis, so that First Nations can understand potential impacts of decisions on their rights (Jack, Sampson, Halfway) and such information must be responsive to what the Crown understands to be the concerns of the First Nations (Mikisew); 11. The Crown must properly discharge both its procedural and substantive duties in any consultation process (Mikisew) and a failure to properly satisfy process-related concerns of First Nations, irrespective of the ultimate impact on substantive rights, may be a basis upon which a decision can be struck down (Mikisew); 12. The Crown must have sufficient, credible information in decision making and must take into account the long-term sustainability of section 35 rights (Roger William). This is particularly so in light of Alberta‟s constitutional duty to ensure the sustainability of Treaty hunting, fishing and trapping rights pursuant to the Constitution Act, 1930 (R. v. Badger [ABCA]); 13. The purpose of consultation is reconciliation and not simply the minimization of adverse impacts (Dene Tha’); 14. Consultation must take place early, before important decisions are made – at the “strategic planning” stage (Haida, Dene Tha’, Squamish Nation); 15. Consultation cannot be postponed to the last and final point in a series of decisions (Squamish Nation)4; 16. Consultation is required in respect of the design of the consultation process itself (Huu-ay-aht). Scoping, terms of reference and other preliminary processes cannot be used to narrow consultation

3 Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73 at para. 62; Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010 at para. 168; Tsuu T’ina Nation v. Alberta (Environment), 2010 ABCA 137 at para. 55.

4 A concern of our First Nations in the EA context or in virtually all regulatory applications (even if a formal environmental assessment is not required) is that consultation often does not take place until project design is well under way and until studies have been completed as part of an application submission. This puts First Nations in the position of having to ask for more studies, amendments to studies, or for changes to terms of reference for studies. This situation could be avoided by consulting early with First Nations in respect of terms of reference for environmental assessments – scoping of projects, information requirements placed on proponents, etc.

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to excuse the Crown from consulting about First Nations‟ legitimate and relevant rights and concerns5; 17. First Nations must be consulted about aspects of the design of environmental and regulatory review processes (Dene Tha’); 18. Consultation cannot just be in respect of “site specific impacts” of development – but must also take into account the cumulative impacts, derivative impacts, and possible injurious affection resulting from development (Dene Tha’, Taku River, Mikisew, Roger William); 19. The Crown must approach consultation with an open mind and must be prepared to alter decisions depending on the input received (Haida); and 20. Consultation cannot be determined simply by whether or not a particular process was followed, but on whether the results are “reasonable” in light of the information presented, degree of impacts, and related matters (Wil’itsxw).

These principles go to ensuring the full and meaningful protection and recognition of our rights. Without precision with respect to how consultation and accommodation will take place – procedurally and substantively – our rights will remain at risk. Further, Alberta has consistently taken an approach to consultation and discussions regarding the legal principles of consultation and accommodation that fails to pay due regard to what is being consulted about – our Treaty rights. Consultation and accommodation in Alberta is primarily about Treaty rights and therefore must also always involve full consideration and application of the following principles relating to the Treaty:

1. A Treaty represents an exchange of solemn promises between the Crown and the various Indian nations. It is an agreement whose nature is sacred. The Crown’s honour requires an assumption that the Crown intended to fulfill its promises;

2. Aboriginal Treaties constitute a unique type of agreement and attract special principles of interpretation;

3. Treaties should be liberally construed and ambiguities or doubtful expressions should be resolved in favour of the aboriginal signatories;

4. The goal of treaty interpretation is to choose from among the various possible interpretations of common intention the one which best reconciles the interests of both parties at the time the treaty was signed;

5. In searching for the common intention of the parties, the integrity and honour of the Crown is presumed;

6. In determining the signatories' respective understanding and intentions, the court must be sensitive to the unique cultural and linguistic differences between the parties;

7. The words of the treaty must be given the sense which they would naturally have held for the parties at the time;

5 West Moberly First Nation v. British Columbia, 2010 BCSC 359, para.54 & 55; Dene Tha’ First Nation v. Canada, 2006 FC 1354

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8. Treaty rights of aboriginal peoples must not be interpreted in a static or rigid way. They are not frozen in time at the date of signature. Treaty rights must be interpreted to provide for their modern exercise. This involves determining what modern practices are reasonably incidental to the core Treaty rights in a modern context; A technical or contractual interpretation of treaty wording should be avoided; and 9. 10. While construing the language generously, courts cannot alter the terms of the treaty by exceeding what "is possible on the language" or realistic.6

A specific approach to consultation

In light of the foregoing, the obvious question is: What do First Nations want in terms of consultation and accommodation? Individual First Nations have provided Alberta with input on this important question. Alberta has also engaged in various processes such as the Protocol Working Group process. In short, Alberta is well aware, in general terms, of what our First Nations are looking for. In our view, the only way to achieve greater clarity and certainty, for First Nation, Industry and the Crown, is to negotiate a new agreement on consultation.

As noted earlier, the contents of consultation will necessarily differ with the nature of the project or issue in question, the degree of potential impact on First Nations‟ rights, and the interests and concerns of the particular First Nations. Keeping the need for flexibility in mind, we have set out an approach to consultation in Appendix B that should serve as the starting point for negotiations with Alberta to develop a mutually acceptable consultation process. Appendix A sets out the mistakes and issues that have arisen since the introduction of the Consultation Policy; it will help ensure that negotiations will avoid the mistakes of the past five years.

Yours truly,

Treaty 8 Chiefs of Alberta

6 R. v. Marshall, [1999] 3 S.C.R. 456, para. 78 (citations removed); R. v. Badger, [1996] 133 D.L.R. (4th) 324, paras. 41 and. 47; R. v. Frank, [1978] 1 S.C.R. 95; R. v. Sundown, [1999] 1 S.C.R. 393 at para. 32

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SIGNATURE PAGE ATTACHED

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cc: Treaty No. 8 Alberta Chiefs Ted Morton, Minister of Finance and Enterprise David Hancock, Minister of Education Iris Evans, Minister of International and Intergovernmental Relations Ron Liepert, Minister of Energy Luke Ouellette, Minister of Transportation Mel Knight, Minister of Sustainable Resource Development Alison Redford, Minister of Justice and Attorney General Rob Renner, Minister of Environment Gene Zwozdesky, Minister of Health and Wellness Yvonne Fritz, Minister of Children and Youth Services Jack Hayden, Minister of Agriculture and Rural Development Ray Danyluk, Minister of Infrastructure Mary Anne Jablonski, Minister of Seniors and Community Supports Lindsay Blackett, Minister of Culture and Community Spirit Heather Klimchuck, Minister of Service Alberta Cindy Ady, Minister of Tourism, Parks and Recreation Hector Goudreau, Minister of Municipal Affairs Jonathon Denis, Minister of Housing and Urban Affairs Thomas Lukaszuk, Minister of Employment and Immigration Darryel Sowan, Director of Livelihood Chiefs Livelihood Committee (CLC) Consultation Technical Team (CTT)

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APPENDIX A

GENERAL CONCERNS WITH ALBERTA’S APPROACH TO CONSULTATION

As explained more fully below, discussions at the April, June, August and September meetings identified the following flaws and issues with Alberta‟s current approach to consultation under the Consultation Policy:

1. Alberta has too narrow a view of First Nations’ rights

Alberta takes a very limited approach to what constitutes the section 35 rights of our First Nations, it ignores the oral promises made in the Treaty No. 8 and the dynamic nature of the Treaty, and it lacks any focus on what information and processes are required for the long-term sustainability of those rights. The Treaty is a living document that continues to evolve and it is well established that our Treaty rights are not “frozen in time”.7 The written text of the Treaty is not a static and final accounting of our rights. Alberta approaches our Treaty rights as a noun, rather than a verb, as though our rights are written in stone, that they do not change, and that the places in which we exercise our rights do not and cannot change. Many cases have established that rights can, and in some cases must, be read into the Treaty to give meaning to express Treaty terms or to provide meaningful contemporary applications of rights.8 As an obvious example, if First Nations are pushed out of areas due to industrial development, we will have to move elsewhere. Rather than understand that we have always had to adapt to changing circumstances, Alberta‟s approach, in fact, does the opposite. It ignores the impacts of development and Alberta officials have, in fact, been trying to confine us to smaller and smaller “consultation areas.” That approach does not serve our interests or reflect the nature of our Treaty rights – it appears to be an attempt by Alberta to artificially create non-overlapping areas where consultation must take place.

Further, the entrenchment of our rights in s. 35 of the Constitution Act, 1982, was not an acknowledgement of a static set of rights, but rather, it was a recognition and affirmation of a body of generative rights which bind the Crown to take positive steps to identify First Nations‟ rights in a contemporary form, with the active participation of our First Nations.9 As the Supreme Court of Canada stated clearly in Sparrow, section 35 was not enacted to maintain the status quo.

Alberta has refused to address claimed Treaty rights in the course of consultation under the current Consultation Policy. This approach is not defensible and is inconsistent with the dynamic and flexible nature of Treaty rights. The Supreme Court clearly sets out a framework for addressing claimed rights in the context of consultation and accommodation in the Haida case. First Nations must sufficiently describe the rights we are claiming and provide some evidence and reasoning in support of the rights. For its part, the Crown is obliged to assess strength of the claimed right and consult (and accommodate) accordingly. Dealing with claimed rights is not easy but simply denying the existence

7 R. v. Sundown, [1999] 1 S.C.R. 393, para. 32. 8 Sundown, supra.; Marshall, supra, para. 78.; see also: R. v. Sappier, 2004 NBCA 56; R. v. Cote, [1996] 3 S.C.R. 136; R. v. Sioui, [1990] 1 S.C.R. 1025; R. v. Simon, [1985] 2 S.C.R. 387; Claxton v. Saanichton Marina Ltd., [1989] 3 C.N.L.R. 46 (BCCA); 9 Tsilhqot’in Nation v. British Columbia, 2007 BCSC 1700, para 1364; See also Brian Slattery, Aboriginal Rights and the Honour of the Crown, (2005), 29 S.C.L.R. (2d), pp. 435-443; and Brian Slattery, The Generative Structure of Aboriginal Rights, (2007) 38 S.C.L.R. (2d).

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of a claimed right is not an acceptable approach.10 Indeed, the Supreme Court has given clear direction that Treaty rights should be accommodated through negotiation and consultation rather than by litigation. 11

The duty to consult and accommodate similarly applies to land claims, particularly those that have been accepted by either Canada or Alberta for negotiation. It is not honourable for the Crown to deal with lands and resources that are the subject of accepted land claims without significant consultation and accommodation.

First Nations and Alberta also have divergent views with respect to the effect of the Treaty on claims to Aboriginal rights and title. There is no definitive case on this point. Accordingly, it is not honourable for Alberta to unilaterally impose its position on these matters. Consultation must afford an opportunity to those First Nations who are advancing Aboriginal title and rights claims to present evidence and arguments in support of such claims.

2. Alberta’s approach to consultation lacks precision

There is very little discussion of process-related issues concerning consultation and accommodation, such as how potential adverse impacts on First Nation rights and interests are to be determined (i.e., when will the duty be triggered), nor is there any guidance on how a decision maker would assess the strength (or weakness) of a First Nation‟s claim and the degree of consultation required - e.g., who will determine the required level of impact and therefore consultation required? Presumably, it leaves this important decision to Alberta officials but does not provide guidance on what information is required, what criteria should be employed, etc. This lack of precision has, in turn, allowed for inconsistent approaches within Alberta government departments, and across Alberta government departments as to whether consultation is required and as to the degree of requisite consultation. Consultation has also been significantly challenged by the fact that Alberta decision makers often claim that they do not have the authority or mandate to make independent decisions with respect to consultation and how it affects our Treaty rights. 3. There are no standards against which to assess consultation and accommodation Alberta‟s approach lacks a mutually agreed-upon set of standards or objectives against which consultation and accommodation can be measured. This has also lead to wildly varying approaches to consultation from one ministry to another and even within the same ministry. It also promoted inconsistent approaches to consultation with industry project proponents.

4. Alberta has failed to recognize and implement the Duty to Accommodate Alberta minimizes and downplays the need for accommodation and the means by which accommodation might take place and what kinds of accommodations may be available (in R. v. Kapp, the majority of the court makes it clear that both consultation and accommodation are constitutional duties). Alberta simply assumes that any form of mitigation proposed by a company, no matter how minimal, will be acceptable. Consultation and accommodation with respect to our Treaty hunting, fishing, trapping and gathering must also take into account other binding legal principles. Alberta has a constitutional duty to ensure a

10 Haida, supra, para. 3 – 38; see also: R. v. Badger, [1996] 1 S.C.R. 771, para.97. 11 R. v. Marshall (2), [1999] 3. S.C.R. 533, para. 22; Haida, supra., para. 47.

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sustainable supply of fish and game for Treaty rights.12 The reduction or degradation of habitat that supports fish and wildlife can constitute an infringement of Treaty rights and an unreasonable limitation of these rights.13 When the Crown is making decisions about the management and allocation of fish and game and the management of related habitat, the Sparrow doctrine of priority must not only be respected, it must be a central consideration in any consultation and accommodation.

5. Alberta delegates substantive aspects of project specific consultation to industry Alberta allows for a great deal of delegation of consultation obligations to industry – in a number of instances, it is not only the procedural aspects of consultation that are being delegated, but virtually the entire substantive duty as well – Alberta appears to see its duty as that of a “referee” – delegating practically all aspects of consultation to industry is akin to putting the fox in charge of the hen-house – industry has the goal of pushing forward its projects and of minimizing the concerns of First Nations. In addition, Alberta has no clear understanding of what is procedural or substantive consultation. 6. Environmental Assessments and similar processes are developed without the participation of First Nations First Nations have repeatedly raised concerns about the lack of any meaningful inclusion of our rights in environmental assessment processes either generally or as a specific topic in Environmental Assessments (“EA”) and other processes. To be clear, Alberta has rejected an approach that states that the impacts of proposals and developments will be measured against the ability of First Nations to exercise our rights now and into the future. This plays out in areas such as the scoping of projects for EA development of information requirements in terms of reference, etc. Those concerns have been downplayed and ignored. Alberta‟s consultation approach does not address this important issue and allows decision makers to continue to ignore First Nations procedural and substantive concerns about our rights in this important area. Time and time again, our concerns about EA are ignored by Alberta Environment. Some of our concerns include:

Failure to develop any thresholds, criteria or measures to assess the impacts of development on our ability to exercise our section 35 rights now and into the future.

Failure to seriously consider and accommodate our procedural concerns with respect to terms of reference for EA.

Failure to assess direct, indirect and cumulative effects of resource development of our rights, including a failure to consider what information is required to undertake assessments on direct, indirect, and cumulative impacts of development on our rights.

Failure to understand, much less address, the key cultural and social impacts of development on our rights – Alberta simply assumes that standard EA processes will deal with these concerns – this relates to the failure to consider the Aboriginal perspective in decision making – the importance of place, and the cultural elements underlying the passing down and exercise of our rights is ignored by Alberta.

Failure to consult with us on the scoping of projects for Environment Assessments (EA) purposes.

12 R. v. Badger, [1993] C.N.L.R. 143; 1993 CarswellAlta 306 (ABCA), paras.29-30; Badger (SCC), supra., paras. 7 & 9, 47, 70. 13 Tsilhqot’in, supra., paras. 1272-75, 1288.

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Failure to undertake cumulative effects assessment to all resource allocation development decisions.

7. Consultation must be structured on a government-to-government basis Consultants working for industry tend to approach selected groups of members or Elders and, in many cases, bypass First Nation governments. Alberta should be more directly involved in consultation to ensure consultation is aboveboard and that such practices are not accepted. Any new approach to consultation must make it clear that this cannot be allowed.

8. The capacity to consult is a persistent hindrance to meaningful consultation There are no specifics in respect of capacity including that the government does not direct industry to provide capacity funding to participate in the process of consultation. A regulatory review of a large project can be costly and time-consuming. There appears to be an assumption among Alberta officials that First Nations have endless amounts of money and capacity to conduct large baseline studies, to gather information, to participate in all kinds of consultation processes, and the like. We require the capacity to consult our members, to attend meetings, to hire technical experts to review the voluminous submissions and to otherwise participate meaningfully in those processes. A small amount of capacity funding is wholly inadequate, yet the policy does not require industry to provide capacity funding to First Nations for industry-driven projects. For example, this leads to the problem that SRD approves projects over the capacity-related objections of First Nations, on the basis that industry is not required to provide funding. This also allows certain industry groups to avoid paying for any capacity, while other companies do provide some capacity. 9. There is a general lack of clarity regarding what role First Nations input should have There is no discussion of how our input will be taken into account, what role First Nations will play in terms of determining what information is required to determine potential adverse impacts or infringements, or what information ought to be required in decision-making about resource development. As things now stand, First Nation‟s concerns about information requirements are largely ignored. There is no real attempt by Alberta to listen to First Nations about our funding and process- related concerns. The scepticism discussed earlier is especially acute in terms of funding issues – as Alberta pushes forward with all kinds of decisions, absent First Nations having sufficient capacity to gather information and participate, it is easy to draw the inference that Alberta‟s concern is more about court proofing than reconciliation. 10. Consultation occurs on a project-by-project basis, devoid of critical information about cumulative impacts on First Nations’ rights A particularly contentious issue is the degree to which the direct, indirect and cumulative impacts of development ought to be assessed in decision-making processes and what studies and information are required to assess those kinds of impacts on our rights. We have long sought a say in developing terms of reference or criteria by which impacts ought to be assessed against our ability to exercise our rights now and in the future. There is no requirement in the policy that this sort of input will be seriously considered – in fact, Alberta Environment and Sustainable Resource Development consistently ignore such input. 11. Consultation rarely, if ever, occurs at the strategic planning stage

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Alberta Energy expressly refuses to consult at the tenure-granting stage. This is extremely troubling. The granting of tenures/mineral dispositions is a key strategic planning stage. Once tenures are granted or dispositions made, there is an expectation on the part of the purchaser or disposition holder that development will be permitted. Certain legislation may, in fact, require development to take place. Once the tenure is granted, the possibility of no development taking place in a particular area may be foreclosed and other kinds of accommodation may be foreclosed, irrespective of the concerns raised by First Nations. Since there is no current process by which Alberta analyzes existing development or planned development on tenures that have already been granted and how such current or future development affects section 35 rights, it is crucial that such analysis be done before more tenures are granted. There is no legal impediment to consultation prior to posting lands for sale or disposition. British Columbia, as one example consults prior to the grants of tenure/sale of lands. This is simply a choice by Alberta and one we feel is ill-advised. 12. There is a Duty to Consult in relation to Private Lands The policy is silent on whether or not consultation ought to take place in respect of what the Province terms “private” lands. We do not accept that there is no duty to consult or accommodate where lands are deemed to be “private.” Badger and other cases state that Treaty rights may be exercised on private lands where there is no visible, incompatible use of those lands. We are also not consulted on decisions to turn Crown lands into private lands. Moreover, we note that consultation is required, notwithstanding that the lands are private, where: o There are renewals or extensions of any approvals, tenures, and leases that created the private lands; o Where development on private lands has the potential to directly, indirectly, or cumulatively adversely impact upon the meaningful exercise of our inherent and Treaty protected rights on Crown land or on other lands to which we have a right of access; and o Where development on private lands has the potential to injuriously affect our inherent Treaty protected rights on Crown lands or on other lands to which we have a right of access.

13. The Duty to Consult and Accommodate applies to decisions that affect Reserve Lands The current Consultation Policy does not adequately address the critically important issue of the duty to consult and accommodate as it relates to reserve lands. Although Alberta does not have jurisdiction to make decisions directly with respect to reserve lands, Alberta can make decisions and take actions affecting traditional lands that have affects on reserve lands along with having lasting and profound impacts on our ability to use and enjoy reserve lands. Negative impacts of decisions concerning off reserve lands can have an adverse impact on reserve lands and constitute an interference with fundamental Treaty rights. Reserves lands are a core term of the Treaty. It is well established that it was the common intention of both First Nations and the Crown that reserve lands would serve as the basis for a transition to a new economy.14 First Nations have an established Treaty right to their respective reserve lands and to the

14 For example: Richard H. Bartlett, Aboriginal Water Rights in Canada: A Study of Aboriginal Title to Water and Indian Water Rights, Canadian Institute of Resource Law, Saskatoon, April 1988, pp. 19-20, 26; Arthur J. Ray, Jim Miller, and Frank Tough, Bounty and Benevolence, McGill-Queen‟s University Press 2000, Montreal, pp. 71, 137-139, 168, 199; Treaty 7 Elders, et al, The True Spirit and Original Intent of Treaty 7, McGill-Queen‟s University Press 1996, Montreal, pp. 121-123, 146, 210, 312-313; Sarah Carter, Lost

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use and benefit of those lands – this is beyond dispute.15 In addition to being a term of the Treaty, First Nations‟ interests in reserve lands are a form of Aboriginal title derived from our prior historic occupation of our lands.16 Moreover, constitutionally, there are a number of provincial laws which cannot apply on our reserves. Accordingly, any potential impacts on reserve lands are impacts on a core Treaty right and our Aboriginal title to reserve lands. Therefore, there is always a duty to consult with respect to potential impacts on our reserve lands. Most often, such impacts will require deep consultation, and in those instances where potential impacts are significant, the full consent of a First Nation will be required.17

14. Municipal decisions and actions can impact First Nations’ rights

Alberta‟s approach to consultation fails to address the reality that the decisions of municipal districts, towns and cities have significant potential to impact First Nations‟ rights and interests. Municipal authority and powers are delegated from the provincial Crown. Many functions and decisions of municipalities can impact First Nations. For example, decisions to locate waste disposal sites, feedlots, construct highways, and zone development can have significant impacts on First Nations‟ reserve lands and other Treaty rights. More general planning decisions and policy initiatives can influence long term land use, infrastructure planning, and water quality and quantity, in ways that impact First Nations. Many First Nations repeatedly expressed this concern to Alberta during the development of the Consultation Policy but the issue has remained unaddressed. Any new approach to consultation has to acknowledge that as delegates of the Crown, municipalities can make decisions and set policies that may impact First Nations and, therefore, engage the duty to consult. Alternatively, Alberta must ensure that, where necessary, it exercises oversight to ensure the adequacy of consultations related to municipal decisions to ensure that the Crown‟s duty to consult is satisfied. Addressing municipal consultation would be consistent with the approach taken by other provinces.18

15. Alberta has an obligation to be forthright about consultation

Alberta has been unwilling to confirm, verbally or in writing, whether certain meetings and processes are consultation or part of the consultative process. On occasion, Alberta officials have been so inconsistent as to communicate that certain processes are both consultation and not consultation. Some First Nations have been assured by Alberta Environment officials that a meeting or series of meetings are not consultation, only to be told later by Alberta Justice that such assurances cannot be relied on. In regulatory processes, First Nations have had to ask for consultation records that industry delivers to Alberta officials, in which industry purports to have “consulted.” This is the case even though Alberta is relying on those records as part of meeting its own consultation obligations. The honour of the Crown does not support a “shell game” approach to consultation. First Nations are entitled to clarity,

Harvests: Prairie Indian Reserve Farmers and Government Policy, McGill-Queen‟s University Press 1990, Montreal, pp. 43-44, 49, 52, 55-57, 78; Richard T. Price, ed., The Spirit and Intent of the Alberta Indian Treaties, 3rd ed., University of Alberta Press, Edmonton, 1999, pp. 31, 141. 15 See: s.10 of Schedule (2), Constitution Act, 1930; Since 1876 the Indian Act has contained the recognition that reserves are for the “use and benefit” of First Nations: Indian Act, S.C. 1876, c. 18, s. 4; Indian Act, S.C. 1880, c. 28, s. 6; Indian Act, R.S.C. 1886, c. 43, s. 2(k); Indian Act, R.S.C. 1906, c. 81, s. 2(i); Indian Act, R.S.C. 1927, c. 98, s. 2(j); and Indian Act, S.C. 1951, c. 29, s. 2(0); Indian Act, R.S.C., C.I-5, s.2(1). 16 Guerin v. Canada, [1984] 2 S.C.R. 335, para.86. 17 Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010, paras. 168-169. 18 Government of Saskatchewan, Draft First Nations and Métis Consultation Framework;

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honesty, and forthrightness from the Crown and its representatives. Nothing less will meet with the honour of the Crown obligations.19

Across Alberta, we have consistently been presented with pre-determined, fully developed consultation plans. Rarely, if ever, are First Nations asked by Crown officials for input into consultation processes. Project proponents have no better record in this regard. Consultation about the scope and terms of the consultation process itself is a critical matter that can determine whether consultation can be meaningful. The Crown must work with First Nations at the earliest stages to determine what rights and interests are at issue, understand which First Nation officials and communities need to be involved and to ensure that Crown officials involved in the consultation process have the capacity and authority to meaningfully consult and accommodate if necessary.20

16. Alberta must be flexible and conduct itself honourably with respect to Traditional Territories and Traditional Knowledge

Alberta‟s approach to consultation must be sensitive to and respect the reality that First Nations‟ traditional territories overlap and that some First Nations have different, and occasionally contrary, perspectives with respect to traditional territories. Any efforts by Alberta to create maps or databases that claim to represent discrete and non-overlapping traditional territories would be, simply put, untrue and an attempt to oversimplify consultation for the benefit of government and industry. First Nations are also concerned that Alberta‟s undue emphasis on “dots on a map” and traditional use sites of an historical nature, has resulted in a serious loss of focus on impacts to on-going Treaty hunting, fishing, trapping, gathering, and other traditional land uses on reserve lands. This approach to studying traditional use and building into the consultation process does not reflect our historical land use patterns and the way in which our peoples continue to use the land for Treaty rights and traditional use purposes.

19 Mikisew Cree First Nation v. Canada, 2005 SCC 69, para.33; Haida Nation v. British Columbia, 2004 SCC 73, para.41; R. v. Marshall, [1999] 3 S.C.R. 456, para. 49. 20 West Moberly First Nation v. British Columbia, 2010 BCSC 359, para.54 & 55; Dene Tha’ First Nation v. Canada, 2006 FC 1354.

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APPENDIX B

SUGGESTED APPROACH TO CONSULTATION

In our view, a negotiated consultation agreement should also include a consultation process or protocol containing the following elements:

A. A mutually agreed-upon set of objectives and interests (see our views on this matter above) against which consultation will be measured.

B. Individual First Nations may use the following principles to assess the adequacy of consultation:

The Crown‟s “taking up” of lands and resources for development are subject to the duty to consult and accommodate.

Consultation is an ongoing process and is always required.

Consultation must be conducted with the genuine intention of seriously considering and substantially addressing the concerns of First Nations and wherever possible, demonstrably integrating the concerns of the First Nations within any Proposal – this extends to both procedural (process) and substantive concerns.

Consultation must take place early in any Proposal before important decisions are made, including at the strategic planning stage of any Proposal and the tenure-granting/land sale stage.

The duty to consult is not met by addressing only the site-specific impacts of any decision, but must also seriously consider and substantially address the potential indirect, derivative, induced and cumulative impacts of other existing, planned, or reasonably foreseeable industrial development(s) on our rights, including injurious affection related thereto.

First Nations need adequate resources to assess the potential impacts of any decision on their rights and interests, including the identification of any mitigation and accommodation opportunities in relation to any decision. In order to be able to consult in a meaningful fashion, the Crown and third parties must be required to negotiate adequate funding with First Nations that enables us to carry out our consultation obligations and the Crown will not authorize development until companies have demonstrated that they have provided such funding.

In carrying out consultation in relation to any Proposal, First Nations, the Crown and, if appropriate, third parties, have reciprocal obligations of reasonableness, good faith, and cooperation.

Any consultation process and its outcome must be responsive to the interests and concerns of our First Nations.

The nature of consultation, compensation and accommodation will vary depending upon the degree of potential adverse impacts on and infringements of the rights of our First Nations.

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Unless a First Nation delegates consultation to another entity or organization, any Crown and third party consultation must be specific to the rights, claims and traditional land uses of the particular First Nation which may be adversely affected or infringed by a decision.

Communication must be open, honest and clear.

The Crown and third parties have a positive obligation to provide full information to our First Nations on an ongoing basis, including new information as it becomes available, so that we can understand the potential direct, indirect and cumulative impacts of any decision on our rights and interests before a decision is made – where First Nations lack sufficient information to assess impacts, the Crown and industry may have to develop additional information through studies and reports – First Nation requests for additional information must be seriously considered – this is why First Nations input into terms of reference are critical.

Based on the resources available, First Nations will outline their concerns with clarity, focusing on the potential direct, indirect and cumulative impacts of any development or issue on their rights.

In any public regulatory process, the Crown and third parties must consult with us about the design of any regulatory review process for any Proposal, including the role of our First Nations in any such process; the screening and scoping of a proposal for environmental assessment under federal and/or provincial law; the drafting of Terms of Reference (“TOR”) for an Environmental Impact Assessment (“EIA”) or its equivalent under federal or provincial law; and the development of cumulative effects assessment and socio-economic impact assessment. More generally, the Crown must consult with us about the design of any consultation process, including the Alberta Consultation Guidelines and revisions thereto, as well as the design of any consultation processes for any Crown initiatives such as the LUF.

Consultation with First Nations is a separate and distinct process from any public consultations conducted by the Crown or by Crown agencies through legislation, regulations or policy and the carrying out of any public hearings for Proposals under federal or provincial law is not a substitute for discharge of the Crown‟s duty to consult, although aspects of such consultation could be used in a separate and distinct process.

In addition to the foregoing, if a decision has the potential to infringe a First Nation‟s Treaty or Aboriginal rights, justification and accommodation of such a potential infringement of that First Nation‟s rights requires the following:

. Priority to be given to the First Nation‟s rights versus those of non-First Nation stakeholders;

. Minimal impact on a First Nation‟s rights;

. Mitigation measures to avoid impacts and to ensure that any impact that does occur is “as little as possible” and to ensure that First Nation concerns are “demonstrably integrated” into any plan of action;

. Fair compensation for unavoidable infringements; and

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. Other efforts to ensure sensitivity and respect of the First Nation‟s rights.

Although these consultation requirements are pre-requisites for the validity of government action in our view, they do not end at the decision-making stage. They are ongoing and continue through the life of any Proposal, including the construction, operation and de-commissioning stages.

Process for Consultation a. Initial Information Requirements

Although our First Nations may have different suggestions for how consultation will take place on the ground, an agreed-upon consultation should provide the following kinds of specific detail:

A list of specific decisions that will trigger the duty to consult, and which will ensure early notification – this should be based on an agreed-upon set of decisions which do and do not trigger the duty to consult – to the extent that procedural aspects of consultation are delegated to industry, any notification should be well before the application is submitted to the regulator or decision maker, so that First Nations have time to give their input on various process-related matters (required studies, TOR, etc.).

Each party involved in the consultation should appoint, in writing, someone responsible for carrying out the consultation and the consultation policy should make clear that any attempt to circumvent the “official” person or body responsible for consultation will not constitute the legally-required consultation.

Our First Nations expect to receive copies of all applications, policies or other decisions which trigger the duty to consult in both electronic and hard copy form.

In order to allow us to understand the issue that forms the basis of consultation, we expect to receive information on:

o the nature and scope of the decision;

o the nature and scope of any future contemplated conduct, such as regulatory documentation related to the decision, or applications for future growth phases related to the decision;

o the reasons for or purpose of the decision;

o the timing of the contemplated conduct, including all applicable regulatory timelines;

o the location of the contemplated conduct;

o the duration of the contemplated conduct;

o the potential risks associated with the contemplated conduct;

o the proposed measures to be undertaken and methods to ensure inclusion of Traditional Use and Traditional Ecological Knowledge of our First Nations;

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o a plan for how we will be consulted and included in the development of studies related to the decision, including in the pre-application phase and in all aspects of the regulatory review of the decision;

o the identification of alternatives to the contemplated conduct; and

o identification of who will be involved in carrying out the contemplated conduct, including any agents or contractors working for the Crown or third parties.

Documents available to be reviewed, in hard copy and electronic form including, but not limited to:

i. applications;

ii. studies;

iii. reports, such as in respect of seismic or exploration phases of the decision;

iv. any previous assessments, studies or reports in respect of any phase of the decision including the exploratory stage, or in the vicinity of the decision that are known to or in the possession of the Crown or industry;

v. information on applicable legislation, policies, guidelines and regulations related to the decision or which decision;

vi. information on any deadlines or filing dates related to the decision; and

o the names, addresses, emails, fax and telephone numbers for any relevant Crown decision makers related to the Proposal as well as identification of contacts for industry Proponents

o If there is any change to information required to be delivered to the First Nation, or if new or additional information becomes available during the pre- application or regulatory review of the decision, this further information shall be delivered to the First Nation. b. Processing of Information – General Kinds of Decisions

Again, while the particular steps may differ from one First Nation to another, some of the key components of a consultation approach would be:

The First Nation will conduct a preliminary review of the information in a specified period of time and indicate whether it wishes to be consulted further and, if so, the First Nation will set out a preliminary list of its concerns.

The consultation policy will specify such time periods that are mutually acceptable, and will ensure that time periods for response respect the culture of the First Nation and do not “count against” the First Nation when the First Nation is closed, such as in the Christmas season.

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The First Nation may request, and the Crown and industry shall attend, any preliminary meetings to discuss among other things:

o the nature of the decision and the Crown‟s regulatory review process or other approval process contemplated, the First Nation‟s initial questions or concerns about the regulatory review process, if any, as well as time lines for the First Nation‟s review of the decision;

o the consultation obligations of the Crown and third party in relation to the decision, how and when they will be carried out, including appropriate and acceptable time lines for the First Nation to consult in relation to the decision;

o appropriate information requirements, including identification of information gaps, for the Crown and third parties to facilitate the First Nation‟s ability to determine and assess the potential impacts of the Proposal on their rights and interests; and

o an appropriate budget provided by the Crown and/or industry and work plan for the First Nation‟s review of the decision and for the First Nation to engage fully and meaningfully in the regulatory review process for the decision.21

As noted earlier, Alberta must recognize that First Nations‟ ability to participate fully and meaningfully in consultation is dependent on receiving adequate funding to do so. Provided that adequate technical/financial assistance is made available by the Crown and/or industry to our First Nations, we will conduct a technical review of the decision and will hold internal discussions with our Leadership and Community to determine and document our issues and concerns in relation to the direct, indirect and cumulative impacts of the decision on our rights and interests.

Following the above steps, the First Nation will communicate any concerns arising thereunder to the Crown and the third party, as well as recommendations on how such concerns can be addressed, accommodated, or mitigated, including in relation to any compensation related thereto that may be required.

The Crown and the third party will engage in consultation with the First Nations to seek to address and accommodate those concerns.

If consultation is delegated to a third party, the third party will provide monthly reports/consultation summaries to the First Nation before submitting those reports to the Crown, so

21 Depending on the nature of the decision and the potential adverse impacts on our First Nations rights and interests, the budget and work plan will include items such as the carrying out of a traditional use study and collection to traditional ecological knowledge, if such information has not already been gathered within the vicinity of the project or decision, or an updating of information relevant to the vicinity of the project or decision; funding for legal and technical advice related to the decision, funding for a third party review of the decision as the context requires (including, but not limited to, a federal or provincial environmental assessment process), funding for community meetings and information sessions related to the decision and other related matters. The work plan will also set out time lines and a process for First Nation internal community engagement in respect of the decision. The work plan may also include time lines for our First Nation‟s review of, and input into, various stages of the environmental or regulatory review process such as commenting on TOR for an EA, scoping of the EA, identification of impacts to be studied in the EA, and related matters.

Any such funding would be in addition to the core funding provided by AAND.

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that the First Nation can verify the accuracy of the information contained therein. If the Crown produces consultation reports or summaries, the First Nation will be provided with copies of such information on a monthly basis in order to verify the accuracy of the information contained therein.

Prior to making a decision, if requested by the First Nation, the Crown will meet with the First Nation to discuss, among other things, the basis upon which the decision will be made, how the First Nation‟s issues and concerns were addressed, including concerns in relation to information gaps and, if those concerns have not been addressed, the reason(s) why those concerns have not been addressed.

In the event that the concerns or some of those concerns cannot be resolved, the First Nation will discuss with the Crown and third parties alternative methods of resolving the dispute, including various forms of Alternative Dispute Resolution (“ADR”). However, if the First Nation‟s concerns cannot be resolved in any process set out herein or through ADR, our First Nations retain their full right to participate in any regulatory proceedings related to the referral and to raise its concerns in relation to potentially impacted rights in any court or other proceeding.

Once a decision is made, if requested by the First Nation, the First Nation will receive a written copy of the decision including information on how its concerns were addressed. If those concerns were not addressed, the First Nation will receive a written explanation for why those concerns were not addressed.

All TUS and TEK information that the First Nation provides to the Crown or third parties in relation to a decision will be kept in strict confidence and that information will not be released to any third party without the written consent of the First Nation unless disclosure of such information is required by law or unless that information is already in the public domain. The First Nation will treat Crown and third party information in the same manner.

The First Nation will negotiate with the Crown or any third party the terms and conditions upon which any information can be used in any regulatory review processes, other public processes or court proceedings.

c. Consultation Process for Complex Decisions

In addition to the processes and steps set out above, the following additional consultation would be required in respect of any large-scale projects or processes such as those related to oil sands development, uranium, hydro-electric, nuclear power, any decision which triggers a federal or provincial environmental assessment, as well as in respect of any Crown-led initiative such as LARP and IFN.

If requested by the First Nation, the Crown and any industry proponent of a decision will engage in face-to-face consultation concerning the development of TOR for a project. Among other things, such consultation will focus on the information required to be developed by the Proponent (including information required to assess potential direct, indirect and cumulative impacts on our rights and interests, the screening and scoping of the Proposal for regulatory review purposes, the identification of cumulative impacts and effects to be assessed, how our First Nations will be consulted in the regulatory review

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process and how TUS/TEK will be considered and incorporated in the environmental assessment (“EA”) or EIA for the project.

If requested by our First Nations, the Crown will consult with us prior to any determination that an application for a project is complete for regulatory approval.

We expect to be consulted on the information to be developed for any decision or process so as to ensure that potential impacts on our rights and interests will be taken into account – that might include baseline information, biophysical or other studies to be carried out, etc.

Many of our First Nations have asked Alberta to work with us to carry out a traditional resource plans or studies which examine the current and future resource, environmental and ecosystem needs of the First Nation to meaningfully carry out their rights now and in the future including, but not limited to:

i. Quality and quantity of wildlife species required; ii. Quality and quantity of aquatic species required; iii. Quantity and quality of plants or other things gathered; and iv. Quantity and quality, as the context requires, of air, water and ecosystems required to support the exercise of the First Nation‟s rights; v. Inclusion or understanding of information to consider the cultural impacts of decisions on our rights

Meaningful incorporation of our TUS/TEK information in relation to the assessment of impacts through consultation and in respect of the regulatory review of any decision;

A mechanism to ensure that information gaps in any decision or in any regulatory review process are identified and addressed prior to the issuance of any federal and/or provincial approval of a decision;

Ensuring that the full social, cultural, environmental, health and economic impacts of decisions are assessed against our rights; d. Accommodation

Depending on the results of the consultation carried out, our First Nations will work with the Crown and industry to identify forms of accommodation that are acceptable to our First Nations to address our concerns. Such forms of accommodation may include, but are not limited to:

a. the decision maker rejecting a decision or project, delaying a decision on a decision or project, revocation of the proposal by a third party or other proponent, or changing the decision or project based on the concerns and/or views expressed by the First Nation through consultation;

b. addressing the procedural concerns of our First Nations, by for example developing specific information requirements to assess the potential impacts of the decision on our rights within the regulatory review process or other public processes;

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c. early engagement of our First Nations in planning related to a decision, including development of the regulatory review process for a decision or other public processes and our roles and participation in such processes; d. negotiation of an Impact-Benefit Agreement, including funding to enable our members and businesses to take advantage of any employment and/or economic opportunities related to the Proposal, including forms of economic benefit beyond jobs or contracts; e. inclusion of our First Nations in revenue sharing or some other means by which we share in the wealth of the Crown, outside of provisions in an Impacts-Benefit Agreement; f. mitigating the impacts of a project, including a meaningful First Nation role in the monitoring of impacts of a project – this would need to involve a specific discussion of so-called reclamation – as we are concerned about the continued reliance of the Crown and industry on measures that have not been tested and which effectively tell us to suspend the exercise of our rights in certain areas for 40 years or more; g. compensation for adverse impacts on, or infringements of, our rights, including financial or non-financial compensation (such as protected areas for exercising our rights); and h. Negotiation of other kinds of agreements, such as exploration agreement related to development.

- 29 - APPENDIX 3 – REFERENCES TO ABORIGINAL PEOPLES AND INTERESTS IN THE RAC VISION DOCUMENT AND PROBLEMS WITH SUGGESTED RAC APPROACHES

Page Section Subheading Issue Proposed Resolution Comments under the LARP

2 1.0: Introduction: 1.1.2: Lower “The scope and pace of There have been and continue to be adverse Background Athabasca Region development has had impacts on aboriginal and Treaty rights. The significant impacts on RAC Document largely ignores those impacts aboriginal peoples in the on rights. region and their way of life.”

3 1.0: Introduction: 1.2.1: Regional Next stages in determining Development of LARP will Developing the Planning Process the content of the LARP continue to be informed by Lower Athabasca Albertans through public, Regional Plan stakeholder and aboriginal consultations.

3 1.0: Introduction: 1.2.1: Regional Components of a Aboriginal traditional A commitment to integrate aboriginal Developing the Planning Process comprehensive planning knowledge should be traditional knowledge is not reflected in the Lower Athabasca process incorporated in planning scheme or priorities of the RAC Document. Regional Plan processes to the extent possible.

6 1.0: Introduction: 1.2.2: Key Understanding priority values Aboriginal traditional Aboriginal traditional knowledge is just one Developing the Components for and how those values are knowledge should be of 10 other factors and the RAC Document Lower Athabasca Phase One of the affected by land‐use decisions utilized, and aboriginal contains no methodology or demonstrable Regional Plan Lower Athabasca knowledge holders involved commitment to incorporate it. Regional Plan early on in the process. 8 2.0 Lower Athabasca 2.1: Vision Statement Balancing sustainable Consider aboriginal To the extent that LARP is a balancing Regional Plan economic, social and knowledge when exercise, that balance must taken place withi environmental outcomes considering traditional and the constitutional structure of Canada which community knowledge, requires that section 35 rights be recognized sound science, innovative and protected. thinking, and accommodation of rights What parts of the LARP Vision demonstrate and interests of all that aboriginal knowledge and rights were Albertans. seriously considered in the RAC Document?

Appendix 3 Page Section Subheading Issue Proposed Resolution Comments under the LARP

11 2.0 Lower Athabasca 2.2: Outcome 1: The Objective 1.6: Increased Strategies include The language utilized here is more Regional Plan Economy of the participation of aboriginal increasing education, aspirational than the other objectives in this Region Grows and peoples in the regional promoting aboriginal regional economic growth objective. Diversifies economy. business capacity, and collaborating on Furthermore, many of the items listed here compensating for are repetitions of the same basic ideas (b, c, infringement of d, and g all relate to increased business constitutional rights opportunities; a, e, and f are different ways of restating the need to increase educational opportunities). While business opportunities are important to First Nations, they cannot be a substitute for maintenance of section 35 rights, at least not unless First Nations agree.

If a regional plan is serious about mitigating impacts on aboriginal peoples and protecting their constitutional rights, why is compensation for ongoing and future infringements part of the plan? Why is compensation the focus, rather than preservation of the rights?

12 2.0 Lower Athabasca 2.2: Outcome 2: Objective 2.1: Communities In addition to 7 non‐ The Crown should work with all aboriginal Regional Plan Infrastructure and are sustainable, liveable, and aboriginal strategies, work peoples affected in the LARP area. Community use sound land‐use planning with aboriginal peoples who Development Needs principles develop sustainable social None of the infrastructure strategies listed are Anticipated, and economic development in this objective addresses aboriginal Planned and plans, consistent with peoples or interests or section 35 rights. Provided Effectively traditional stewardship and Efficiently principles.

Appendix 3 Page Section Subheading Issue Proposed Resolution Comments under the LARP

13 2.0 Lower Athabasca 2.2: Outcome 2: Objective 2.2: Infrastructure is Give consideration to, The infrastructure strategies and plans in Regional Plan Infrastructure and provided to support among 11 other factors, the Objective 2.2 only minimally address Community population growth and special/unique aboriginal peoples and do nothing to Development Needs economic development circumstances of aboriginal address the impacts of population growth are Anticipated, peoples in planning and and infrastructure, such as transmission Planned and funding allocations for lines, on aboriginal and treaty rights in the Provided Effectively physical and social Lower Athabasca region, including and Efficiently infrastructure. protecting aboriginal access to lands.

15 2.0 Lower Athabasca 2.2: Outcome 3: Objective 3.1: The In addition to 5 other For the environment’s natural processes and Regional Plan Economic Growth is environment’s natural strategies, support natural resources to be understood, Achieved Through processes and natural development of education aboriginal knowledge and use of the land Integrity and Respect resources are understood, programs to present the must be utilized and respected, not merely for Management respected and cared for. region’s unique cultural and presented. Systems aboriginal history. This objective completely avoids aboriginal traditional knowledge, preferring to incorporate aboriginal history as if aboriginal cultures were dead.

15 2.0 Lower Athabasca 2.2: Outcome 3: Objective 3.2: Land, air, water Work with local This commitment to work with aboriginal Regional Plan Economic Growth is and biodiversity are communities and aboriginal peoples is hollow as 1) no process or Achieved Through monitored and reported peoples to identify thresholds are contemplated with input Integrity and Respect stewardship from First Nations and 2) the Lieutenant for Management responsibilities, aboriginal Governor in Council is given the authority to Systems knowledge of historical disregard, amend and reject any changes and roles for stewardship recommendations under the aboriginal peoples in Land Stewardship Act. various monitoring and reporting measures.

Appendix 3 Page Section Subheading Issue Proposed Resolution Comments under the LARP

16 2.0 Lower Athabasca 2.2: Outcome 3: Objective 3.2: Land, air, water Work with aboriginal Aboriginal people must be consulted Regional Plan Economic Growth is and biodiversity are peoples to utilize aboriginal regarding appropriate baselines and how Achieved Through monitored and reported knowledge of historical their knowledge will be utilized in assessing Integrity and Respect changes in water quality changes, mitigating impacts and ensuring for Management and quantity, air quality, protection of aboriginal and treaty rights. Systems land and biodiversity and This objective falls short of all of these. establish firm baselines for measurement in the region.

17 2.0 Lower Athabasca 2.2: Outcome 4: Land Objective 4.1: Landscapes are In addition to 8 other Any assessment of cumulative effects must Regional Plan Uses are Responsible managed to maintain and strategies for maintaining include an analysis of whether aboriginal or and Sustainable to enhance ecological integrity ecological integrity, use treaty rights have been infringed. The plan Conserve Ecosystems and human health aboriginal traditional should also describe how the enhanced and Biodiversity knowledge to enhance understanding of cumulative effects will be understanding of used in the planning process and should cumulative effects and make provision for further research into the develop appropriate health effects of development in the LARP mitigation/minimization area. strategies. Again, under the Land Stewardship Act, the Lieutenant Governor in Council can disregard, amend or reject any effort to address cumulative effects in LARP.

Appendix 3 Page Section Subheading Issue Proposed Resolution Comments under the LARP

18 2.0 Lower Athabasca 2.2: Outcome 4: Land Objective 4.2: Disturbed land Make researching It is inappropriate for this objective, which Regional Plan Uses are Responsible is reclaimed in a timely, successful reclamation relates to responsible and sustainable land and Sustainable to progressive and aggressive methods a priority, but start uses, to consider aboriginal peoples only at Conserve Ecosystems manner now to work with aboriginal the stage of reclamation. Also, this and and Biodiversity peoples and multi‐ other references to “reclamation “continues stakeholder organizations the “just trust us it will work” approach to to co‐ordinate reclamation. reclamation, which is inappropriate. Developing a reclamation plan for the entire mixed use resource area (60% of the LARP area) demonstrates a failure to seriously address which lands are socially and culturally more important to First Nations, the potential for mutually exclusive land uses in the mixed use area, and requirements under s.35(1) of the Constitution Act such as minimal impairment.

Timelines must be created in consultation with First Nations for this objective.

18 2.0 Lower Athabasca 2.2: Outcome 4: Land Objective 4.3: Regional Create management plans Again, the creation of management plans is Regional Plan Uses are Responsible biodiversity and ecosystem for conservation areas and a hollow promise given the scheme of the and Sustainable to function is conserved and multi‐use areas which Land Stewardship Act. Conserve Ecosystems enhanced utilize traditional aboriginal and Biodiversity knowledge and involve Furthermore, given that RAC Document’s aboriginal knowledge land‐use classification system already holders. defines how competing uses are to be balanced, the promise of meaningfully incorporating aboriginal knowledge provides nothing to LARP.

Appendix 3 Page Section Subheading Issue Proposed Resolution Comments under the LARP

18 2.0 Lower Athabasca 2.2: Outcome 4: Land Objective 4.3: Regional In addition to other LARP provides no guidance how this Regional Plan Uses are Responsible biodiversity and ecosystem knowledge bases, develop a knowledge base is to be incorporated or and Sustainable to function is conserved and traditional knowledge base used together with other scientific and Conserve Ecosystems enhanced of the impacts of individual socio‐economic data. and Biodiversity and cumulative industrial activities on biodiversity and ecosystem functions through time.

19 2.0 Lower Athabasca 2.2: Outcome 5: The Objective 5.2: Water quality Recognize downstream Why are downstream water requirements of Regional Plan Integrity of Air and and quantity is managed to water requirements of the the NWT and Saskatchewan to be Water are Managed enhance and maintain NWT and Saskatchewan. recognized, but not First Nation downstream Through Responsible ecological integrity and water requirements within the LARP area? Stewardship human health

22 2.0 Lower Athabasca 2.2: Outcome 6: Objective 6.3: Cultural Develop opportunities to Using elders and other aboriginal knowledge Regional Plan People‐friendly diversity is valued work with aboriginal elders holders as a tool for cultural diversity Communities are and peoples to develop minimizes the role they should play in the Created Throughout cultural‐historical learning land‐use planning process and minimizes the the Region opportunities in the region. link between their information and treaty rights.

22 2.0 Lower Athabasca 2.2: Outcome 6: Objective 6.3: Cultural Maintain opportunities for This is a constitutional requirement. Regional Plan People‐friendly diversity is valued community traditional use Communities are activities such as hunting, Created Throughout fishing, trapping, country the Region foods and camping.

Appendix 3 Page Section Subheading Issue Proposed Resolution Comments under the LARP

22 2.0 Lower Athabasca 2.2: Outcome 6: Objective 6.3: Cultural Develop a place name Aboriginal control over culturally/historically Regional Plan People‐friendly diversity is valued program and consider significant sites is vital for the protection of Communities are converting aboriginal and treaty rights and for LARP to Created Throughout culturally/historically seriously address cultural diversity. the Region significant sites/features to Renaming sites is not a sufficient land‐use those names. plan. Furthermore, simply protecting sites while other parts of the Traditional Territories around those sites are effectively run over does not live up to the requirements of section 35.

22 2.0 Lower Athabasca 2.2: Outcome 6: Objective 6.4: Significant Support aboriginal Aboriginal control over these sites is vital for Regional Plan People‐friendly historical resources are communities’ leadership to the protection of aboriginal and treaty rights Communities are protected and historical develop management and for LARP to seriously address cultural Created Throughout themes are identified and procedures to preserve and diversity. Furthermore, simply protecting the Region developed. protect aboriginal peoples’ sites while other parts of the Traditional historic and ceremonial Territories around those sites are effectively sites that are significant to run over does not help. aboriginal peoples so that they can be preserved and protected as appropriate under existing legislation.

23 2.0 Lower Athabasca 2.2: Outcome 7: Objective 7.1: Aboriginal Again, the creation of land management Regional Plan Aboriginal Peoples’ peoples are included in land plans is a hollow promise given the absolute Rights, Traditional management planning and unfettered authority of the Lieutenant Uses and Values are Governor in Council under the Land Respected and Stewardship Act. Reflected in Planning

Appendix 3 Page Section Subheading Issue Proposed Resolution Comments under the LARP

23 2.0 Lower Athabasca 2.2: Outcome 7: Objective 7.1: Aboriginal Work with aboriginal While education is important, the limited Regional Plan Aboriginal Peoples’ peoples are included in land peoples to develop local protection of aboriginal rights and interests Rights, Traditional management planning learning opportunities for and the minimal guarantees of meaningful Uses and Values are youth regarding cultural inclusion of aboriginal peoples in Respected and values, social responsibility, management planning limit the efficacy of Reflected in Planning stewardship roles, etc. this proposal.

23 2.0 Lower Athabasca 2.2: Outcome 7: Objective 7.1: Aboriginal Ensure meaningful This is a constitutional requirement and Regional Plan Aboriginal Peoples’ peoples are included in land consultation with aboriginal includes, where appropriate, Rights, Traditional management planning peoples. accommodation. The consultation process Uses and Values are between the Crown and affected aboriginal Respected and peoples should be defined. Alberta’s Reflected in Planning Consultation Policy and Guidelines are unilaterally imposed and do not meet legal requirements.

23 2.0 Lower Athabasca 2.2: Outcome 7: Objective 7.1: Aboriginal Work with aboriginal The value of this recommendation is Regional Plan Aboriginal Peoples’ peoples are included in land peoples to improve quality uncertain given other flaws set out in this Rights, Traditional management planning of information to inform letter. The RAC Document provides no Uses and Values are and co‐ordinate current guidance or assurances as to what is to be Respected and planning processes, done with this information. Reflected in Planning infrastructure and services planning.

23 2.0 Lower Athabasca 2.2: Outcome 7: Objective 7.1: Aboriginal Provide information and Funding must be sufficient for meaningful Regional Plan Aboriginal Peoples’ peoples are included in land funding assistance to participation and requires meaningful Rights, Traditional management planning aboriginal peoples to incorporation of First Nation views. Uses and Values are participate in the Respected and development of land‐use Reflected in Planning plans.

Appendix 3 Page Section Subheading Issue Proposed Resolution Comments under the LARP

23 2.0 Lower Athabasca 2.2: Outcome 7: Objective 7.2: Land‐use Balance aboriginal rights Constitutionally protected aboriginal rights Regional Plan Aboriginal Peoples’ planning processes balance with many other interests. are not subject to s.1 of the Charter and Rights, Traditional the constitutionally protected cannot be simply balanced with other non‐ Uses and Values are rights of aboriginal peoples constitutionally protected interests. For Respected and and the interests of all “balancing” not to violate the Constitution, it Reflected in Planning Albertans must be done under the justified infringement analysis required by s.35(1) of the Constitution Act, 1982.

23 2.0 Lower Athabasca 2.2: Outcome 7: Objective 7.2: Land‐use Work with aboriginal Again, this conflicts with the absolute and Regional Plan Aboriginal Peoples’ planning processes balance peoples to develop formal unfettered authority of the Lieutenant Rights, Traditional the constitutionally protected roles and responsibilities for Governor in Council under the Land Uses and Values are rights of aboriginal peoples aboriginal peoples in land‐ Stewardship Act. Respected and and the interests of all use planning and Reflected in Planning Albertans environmental assessment/ Furthermore, how environmental monitoring. assessment and monitoring data will be used under LARP must be defined for this to demonstrate a real commitment to respect aboriginal and treaty rights. 23 2.0 Lower Athabasca 2.2: Outcome 7: Objective 7.2: Land‐use Work with aboriginal Again, this conflicts with the absolute and Regional Plan Aboriginal Peoples’ planning processes balance peoples to develop unfettered authority of the Lieutenant Rights, Traditional the constitutionally protected engagement strategies for Governor in Council under the Land Uses and Values are rights of aboriginal peoples aboriginal peoples in land Stewardship Act. Respected and and the interests of all planning and decision‐ Reflected in Planning Albertans making. For “balancing” not to violate the Constitution, it must be done under the justified infringement analysis required by s.35(1) of the Constitution Act, 1982.

23 2.0 Lower Athabasca 2.2: Outcome 7: Objective 7.2: Land‐use Assess the state of How this data will be used under LARP must Regional Plan Aboriginal Peoples’ planning processes balance knowledge of fish and be defined for this to demonstrate a real Rights, Traditional the constitutionally protected wildlife resources and commitment to respect aboriginal and Uses and Values are rights of aboriginal peoples effectively manage treaty rights. Respected and and the interests of all allocations that affect Reflected in Planning Albertans. aboriginal peoples’ rights. Under the Land Stewardship Act the Lieutenant Governor in Council can disregard any such information.

Appendix 3 Page Section Subheading Issue Proposed Resolution Comments under the LARP

23 2.0 Lower Athabasca 2.2: Outcome 7: Objective 7.2: Land‐use Work with aboriginal Where and how is this to happen? There is Regional Plan Aboriginal Peoples’ planning processes balance peoples to generate land‐ no recommendation for legislative and Rights, Traditional the constitutionally protected use options for mitigation, regulatory change and the RAC Document is Uses and Values are rights of aboriginal peoples accommodation and focused primarily on pushing ahead on Respected and and the interests of all reconciliation of rights. development, with little or no concern with Reflected in Planning Albertans section 35 rights.

23 2.0 Lower Athabasca 2.2: Outcome 7: Objective 7.2: Land‐use Support the ability of This is a constitutional requirement, but the Regional Plan Aboriginal Peoples’ planning processes balance aboriginal peoples to LARP proposal is so minimally described as Rights, Traditional the constitutionally protected exercise traditional uses of to render any assurances meaningless. Uses and Values are rights of aboriginal peoples the land. Respected and and the interests of all For “balancing” not to violate the Reflected in Planning Albertans Constitution, it must be done under the justified infringement analysis required by s.35(1) of the Constitution Act, 1982.

23 2.0 Lower Athabasca 2.2: Outcome 7: Objective 7.2: Land‐use Encourage aboriginal For this proposal to have meaning, LARP Regional Plan Aboriginal Peoples’ planning processes balance peoples to share traditional must ensure adequate safeguards exist for Rights, Traditional the constitutionally protected use information. the protection and appropriate use of such Uses and Values are rights of aboriginal peoples information and for the information to be Respected and and the interests of all integrated into planning at an early stage. Reflected in Planning Albertans Moreover, depending on the information received, there needs to be a recognition that some development should be limited or non‐existent in certain areas.

23 2.0 Lower Athabasca 2.2: Outcome 7: Objective 7.2: Land‐use Work with aboriginal Aboriginal peoples should be involved in Regional Plan Aboriginal Peoples’ planning processes balance peoples in establishing roles land use decisions prior to reclamation. Rights, Traditional the constitutionally protected pertaining to reclamation Moreover, reclamation is often guess work Uses and Values are rights of aboriginal peoples and reuse of reclaimed with no demonstrable results showing that Respected and and the interests of all lands for traditional uses. the reclaimed land can support the exercise Reflected in Planning Albertans of rights from an Aboriginal perspective.

Appendix 3 Page Section Subheading Issue Proposed Resolution Comments under the LARP

24 2.0 Lower Athabasca 2.2: Outcome 7: Objective 7.2: Land‐use Assess the impacts of This is an obligation of the Crown at all times Regional Plan Aboriginal Peoples’ planning processes balance development and increased and must include an assessment of Rights, Traditional the constitutionally protected regulation on local trapping preferred locations for exercising treaty Uses and Values are rights of aboriginal peoples and treaty activities. rights, undue hardship, and alternatives for Respected and and the interests of all minimal impairment, among other Reflected in Planning Albertans considerations.

In addition to assessing impacts, LARP must also include planning strategies that address limiting or preventing development when treaty activities are affected.

24 2.0 Lower Athabasca 2.2: Outcome 7: Objective 7.3: Opportunities This is an obligation of the Crown at all Regional Plan Aboriginal Peoples’ for traditional uses within the times. Rights, Traditional region are maintained and Uses and Values are enhanced Again, this conflicts with the absolute and Respected and unfettered authority of the Lieutenant Reflected in Planning Governor in Council under the Land Stewardship Act.

24 2.0 Lower Athabasca 2.2: Outcome 7: Objective 7.3: Opportunities Support aboriginal This is an obligation of the Crown at all Regional Plan Aboriginal Peoples’ for traditional uses within the communities’ ability to times. Rights, Traditional region are maintained and exercise traditional uses. Uses and Values are enhanced Respected and Reflected in Planning

24 2.0 Lower Athabasca 2.2: Outcome 7: Objective 7.3: Opportunities Maintain populations of This is an obligation of the Crown at all Regional Plan Aboriginal Peoples’ for traditional uses within the game species to support times. Rights, Traditional region are maintained and aboriginal traditional use Uses and Values are enhanced and recreational hunting Respected and and fishing, including Reflected in Planning commercial guide outfitting.

Appendix 3 Page Section Subheading Issue Proposed Resolution Comments under the LARP

24 2.0 Lower Athabasca 2.2: Outcome 7: Objective 7.3: Opportunities Support aboriginal Recognizing and protecting aboriginal and Regional Plan Aboriginal Peoples’ for traditional uses within the communities to undertake treaty rights is a constitutional obligation at Rights, Traditional region are maintained and community subsistence/ all times. Uses and Values are enhanced traditional use needs Respected and assessment. Reflected in Planning

26 3.0: Land‐use 3.1.2 Conservation Criteria for the classification One criterion for the This fails to assess lands that formerly Classification System of conservation areas conservation classification supported aboriginal traditional uses and is that an area support the cultural, social spiritual and historical aboriginal traditional uses. reasons why some lands may be of more importance than others.

26 3.0: Land‐use 3.1.2 Conservation Incorporation of aboriginal Aboriginal uses will be Even where there are valid conservation Classification System uses in conservation areas permitted where they will objectives, any infringement of aboriginal be consistent with overall and treaty rights must meet the standard of conservation strategies. justified infringement, including priority allocation of resources.

To the extent that permits are to be required, the province must justify this prima facie infringement, keeping in mind the jurisprudence and the legal obligations under Treaty 8 not to restrict access for hunting, fishing and trapping.

When read together with SRD’s Proposed Public Lands Administration Regulation and other parts of the RAC Document, exercise of section 35 rights and traditional uses becomes a low‐level priority, with ever more restrictions placed thereon. The RAC Document makes planning proposals without consideration of the other restrictions being considered and implemented by Alberta already.

Appendix 3 Page Section Subheading Issue Proposed Resolution Comments under the LARP

27‐8 3.0: Land‐use 3.1.3 Mixed‐use 60% of the LARP land area is Respect the integrity of This fails to recognize priority in access to Classification System Resources classified as mixed‐use known significant cultural resources, minimal impairment, preferred resource, and therefore resources and aboriginal means for exercising rights, consultation intended to “encourage and traditional use, while requirements, etc. and makes exercise of support economic activities maintaining the long‐term constitutionally‐protected rights less associated with resources priority of harvesting important than permitted industrial uses. development” forests and extracting bitumen.

32 3.0: Land‐use 3.1.5 Recreation and Increasing regional recreation Include aboriginal peoples Aboriginal uses in areas over which treaty Classification System Tourism and tourism opportunities in the planning of guarantees access, hunting, fishing, trapping through the creation of new recreation and tourism and gathering must be primary uses for recreation areas and opportunities and in the LARP to respect the constitutional enhancements creation of aboriginal framework of Canada. tourism opportunities. Furthermore, given that LARP’s land‐use Classified Lake Athabasca as classification system defines how competing “Semi‐Primitive uses are to be balanced, the promise of Mechanized” where meaningfully incorporating aboriginal recreation and tourism is to knowledge provides nothing to LARP. be the primary use.

33 3.0: Land‐use 3.2.2 Multi‐use Multi‐use corridors are a Use a multi‐stakeholder This overlooks the absolute and unfettered Classification System Corridor Overlay priority on the Land‐use planning process. authority of the Lieutenant Governor in Framework Council under the Land Stewardship Act. Manage access and use in river corridors to protect the traditional practices of aboriginal peoples, and consider aboriginal traditional knowledge in developing management tools.

Appendix 3 Page Section Subheading Issue Proposed Resolution Comments under the LARP

34 3.0: Land‐use 3.2.River Corridor River corridors are an The maintenance of The minimal mention of aboriginal use of Classification System Overlay important landscape feature aboriginal traditional uses the Athabasca River and other waterways and cultural resources is for travel and for the exercise of treaty “important”. rights demonstrates a lack of understanding of aboriginal and treaty rights in the area.

Appendix 3