An Examination of the Reconvened Tulsequah Chief Assessment Process By John Nelson, Nelson Consulting, for the Transboundary Watershed Alliance November 28, 2001.

Section 1: Examination of the Road Alignments

The Tulsequah Chief Access Road can be divided into three sections, with the first two sections of the road route having two or more alterative options. The proposed Tulsequah Chief Access Road will travel through the home range of many grizzly bears and some of the highest population densities in northern .1

Road Section One

There are several alternative routes from the town of Atlin to the

1. Redcorp Spruce-Wilson Route

This proposed road alignment by Redfern has raised a variety of concerns including: o The route is 40 km in length with 59 stream crossings and travels within 200 metres of rivers or lakes for a length of 11.2 km, is located in wetland or valley bottom terrain for 23 km, and is located in avalanche or heavily gullied terrain for 6.8 km.2 o A road in the lower Wilson Creek area would have a high impact on caribou winter range. 3 o Initial project results from the telemetry data indicates that the Wilson, O’Donnel, and Dixie Lake area are high value wintering areas [for moose]. The proposed route alignment passes directly through the wintering areas.4 o In her June 28, 2000 judgment, Madam Justice Kirkpatrick identified that the Wilson Creek-Blue Canyon area was important to the Tlingit First Nation:

[16] Extensive reference was made during the course of the hearing to the substantial body of evidence and expert reports filed in the environmental assessment process that supported the concerns of the Tlingits. That evidence was directed to the systemic nature of the Tlingits' land use practices; their reliance on that land use system to sustain them socially, economically, and culturally; the adverse effects the road will have on vulnerable wildlife populations on which they rely; the very serious effects of increased access to the Blue Canyon/Wilson Creek area [where the Tlingit hunt]; and the road's effects on specific sites, including their main traditional trail and hunting and fishing camps.5

1 o The Wilson Creek- Spruce Creek Pass is range to caribou from the calving to the fall rutting periods. A road through this area is highly likely to also effect the movement and distribution of these caribou as well as increasing the probability of higher traffic fatalities [of caribou]. Collisions with vehicles from this road will result in a new and likely significant source of caribou loss from the Atlin herd.6 o There is extensive caribou use of the Spruce-Wilson area south of upper Spruce Creek. Large concentrations of caribou often use the area from lower Wilson Creek through the Dixie Lake area, corresponding closely with the Redcorp alignment. Disturbance of caribou in this area could greatly reduce or eliminate their use of this area.7 o The Spruce-Willow-Birch zone of the Spruce-Wilson area south of upper Spruce Creek receives moderate use by grizzly bears. They are highly visible in the open habitats of this area and vulnerable to disturbance and mortality.8 o Access to [Upper Wilson Lake] would probably result in depleted stocks [of Arctic Grayling].9 o A road built in the open habitats of the Spruce- Willow-Birch zone of Wilson Creek would present a high risk of disturbance and mortality to moose, caribou, and grizzly bear.10

2. Warm Bay – O’Donnel River Route

This route has several different variations including two different options in the Palmer Lake/Warm Bay area, as well as two different routes for traveling through or around the town of Atlin (the Pine Creek options). This route has the following problems: · For an alignment from the southwest end of Pine Creek, along Warm Bay to O’Donnel River (km 118), the road would be 31.8 km in length with 29 stream crossings and would be located within 200-m of rivers or lakes for a distance of 7.5 km, would be located in wetland or sensitive valley bottom terrain for a distance of 17 km, and would be located in avalanche/gullied terrain in only one location at Burdette Creek.11

2 · While the road is considered to have a much smaller impact on wildlife than the Redcorp Spruce-Wilson route12, there is serious concern that the road would impact the quality of life of Atlin and surrounding area residents. · O’Donnel valley is high value winter habitat for moose.13 · The O’Donnel River lowlands are part of the winter range of the Atlin caribou and as such I fully expect that there would be substantial impacts resulting from roads there. During the winter months, wintering caribou would frequently cross the road or due to the depth of snow, caribou may travel along it posing additional risk.14 · The Palmer Lake loop would traverse high value moose winter range.15 · There is also concern that mining traffic could impact Stone sheep, where the road passes the Johnson Range. · This route also requires resolution of: 1) will Redfern pay $10 to the Ministry of Transportation and Highways (MOTH) to upgrade existing public roads in the Warm Bay area; and 2) can Redfern address public concerns regarding mining traffic being routed through Atlin via the Warm Bay route.

3. McKee Creek Connector

This proposed route would connect the Spruce-Wilson route with the Warm Bay- O’Donnel route, allowing planners to either avoid the Wilson and Atlin Lake areas. · The McKee Connector would be 16.7 km in length, with 29 stream crossings and would be located on steep slopes for a distance of 6.7 km, would be located in avalanche/heavily gullied terrain for 3 km, would be located within 200 m of rivers or lakes for a distance of 10 km, and would be located in wetland or sensitive valley bottom terrain for a distance of 4 km. 16 · The Spruce-Willow-Birch Zone [of McKee Creek] is heavily used by moose. The upper valley of McKee Creek includes large areas that are sparsely treed with long sight distances, thereby increasing likely impacts from disturbance and hunting. 17 · This route does not provide any benefits. The road climbs steeply from the Warm Bay road resulting in increased trucking costs. The road is essential a back haul, avoiding the community but adding additional haul distance to the route. The road also traverses the alpine areas utilized by the Atlin caribou herd, with the same geographic area as the Spruce-Wilson, negating any benefits of a closure of the route.18

3 Road Section Two

This section of road has several different route alternatives from the O’Donnel Valley to the Sloko/Nakonake junction.

4. Dixie Lake Connector

This road is only meant to provide access to the Gold Bottom, Kuthai Lake, or Tawina Lake alternate routes. This route is associated with the following concerns: · This 9 km route has 11 stream crossings and is located in wetland or sensitive valley bottom terrain for a 9 km distance and for 5.5 km is located within 200 metres of a river or lake, but is not located in either steep terrain or avalanche/gullied terrain.19 · The Dixie Lake area is high value moose winter range 20 and caribou winter range.21 5. Park Boundary – Tawina Lake Route

The Park Boundary route is a continuation of the Warm Bay route and would require the resolution of problems with the Warm Bay route as described earlier. · This 35.5 km long route has 34 stream crossings and is located in 11.5 km of steep terrain, 1.5 km of avalanche/gullied terrain, 14 km within 200 metres of a river or lake, and 23 km in wetlands or sensitive valley bottom terrain.22 · Caribou are the primary species of concern for most of these route options. The area that they have used most commonly [for winter habitat] extends from lower Wilson Creek, across the O’Donnel River, along both sides of Dixie Lake to the southern end of Tawina Lake.23 · The Park Boundary road route crosses the O’Donnel River requiring “the construction of a short causeway, and the in filling of the braided channels at the bridge site (necessitating a fisheries mitigation plan).”24

6. Kuthai Lake North

· This road is 10.7 km in length, has 14 stream crossings, and is located in no steep terrain or avalanche/gullied terrain, but is located within 200 metres of a river or lake for a distance of 5 km and is located in wetland or sensitive valley bottom terrain for a distance of 9 km. 25 · The construction of a route within the proximity of Kuthai Lake is not considered feasible due to the stated opposition of the TRTFN, impacts to grizzly bear populations, and increased conflicts with the heritage trail.26 · “[Kuthai North is] an area of high risk for fisheries and grizzly bear.”27 · The Kuthai North option would have a high impact on grizzly bears because of their use of along the shoreline. The wet forest near the lakeshore also provides important foraging and travel areas. 28

4 · There are several fish species present that could be subject to levels of fishing that would deplete stocks. Arctic grayling, lake trout, bull trout, and salmon are the main species of conservation concern.29 · Kuthai Lake is also known to be a significant resource for spawning along the lakeshore. A concern has been previously raised with respect to the impedance of ground water flows from road construction activities and the effect that this would have on spawning and escapement of juveniles. 30

7. Kuthai Lake South

In an attempt to avoid the sensitive fish and wildlife habitat at Kuthai Lake, this road route climbs above the lake traveling through existing unstable terrain and avalanche chutes. · Sixteen km in length, this road alignment has 17 stream crossings and is located in steep terrain for 4 km and is located in avalanche/gullied terrain for 4 km. Three km of the road is located within 200-m of a river or lake and 10 km of the road is located in wetland or sensitive valley bottom terrain. 31 · A map of the Heritage Trail provided by the TFTFN indicates that a Kuthai Lake South alignment will increase the points of route/trail conflict.32 · Continuing across the hillside, this route traverses several small streams that are gullied and have produced debris flows into Kuthai Lake (as evidenced by the debris fans into the lake) and which remain prone to small debris flows (sidewall failures evident).33

8. Kuthai Lake Upper (Mount O’Keef) Route

This route has been rejected by the Ministry of Forests as it “. . . . does not provide a viable alternative . . . . This route will increase the cost and difficulty of access to the mine site.”34

9. Redcorp Heritage Trail

· This route is 53 km in length and has 73 stream crossings, including 23 bridges and is located in steep terrain for a distance of 22 km, as well as 3 km in avalanche/gullied terrain at Focus Mtn. The route is within 200 metres of a river or lake for a distance of 6 km and is located in wetland or sensitive valley bottom terrain for a distance of 12 km in the Silver Salmon watershed.35 · Route passes through the Dixie Lake area, which is important moose winter range36 and caribou winter range.37 · Road parallels the Silver Salmon River and its tributaries for 4 km, which is causes concern as “Alignments that are in close proximity to . . . . the Silver Salmon River have increased risk to grizzly bear and salmon.”38 · On the Heritage Trail option, high use [grizzly bear] areas were noted along the lower slopes of Focus Mountain and on the slopes above the Sloko River crossing (Francis and Gallagher 1998).39

5 · As shown in the accompanying map, the Redcorp road (dotted line) intersects with the Nakina Heritage Trail (red line) five times. This is problematic as the TRTFN has opposed any road route that impacts any traditional trail. Tony Pearse’s affidavit states that the: “EAO Recommendations Report takes the approach, as does the proponent, that impacts to the heritage trail can be mitigated by simply fine-tuning the road alignment in the field to minimize intersections with any trails. This approach ignores the spiritual and inspirational significance of the trails to the Tlingits.”40 Pearse cites reports by Dewhirst and also by Staples that describe the significance of the Tlingit’s heritage trails. Pearse contends that a road to these trails could increase non-TRTFN traffic on these trails, allowing others to access highly valued TRTFN hunting, fishing, and trapping grounds. The only acceptable solution to the TRTFN is to completely relocate the road “at a great distance from the trails.”41 · Fish habitat concerns [along the Redcorp Heritage route] stem mainly from areas of higher terrain hazard and concern for potential downstream habitat impact.42 · Where the Wilson and O’Donnel Rivers meet, is a location of high value caribou habitat.43

10. Sloko River – Goldbottom Creek

This route has been dismissed by government agencies as not viable: “The Sloko-Goldbottom valley does not provide a viable route for access to the Tulsequah Chief mine. Within the road corridor, the terrain adjacent to the Sloko River and Goldbottom Creek is directly affected by failing slopes. Debris slides, landslides, and highly erodible soils will have a direct affect on the construction of a road and on the fisheries resources of the streams. Road construction in the Goldbottom Creek valley will have a direct and negative effect on the mountain goat and grizzly bear populations in the area.”44

6 Road Section Three

The Nakonake Route is considered the only route from the Sloko/Nakonake junction to the mine site, as all alternatives are considered unacceptable.

11. Nakonake to Mine Site

This is the only route from the junction of the Sloko/Nakonake Rivers to the mine site and runs directly through critical wildlife habitat for grizzly bears, bull trout, and mountain goats. While the following list of concerns is not comprehensive, this corridor is problematic because: · It is located through a dense grizzly bear population and roads are documented to have a negative impact of this species; · It crosses a number of streams containing bull trout, which are “easy prey for anglers and thus susceptible to over-harvest”45 and “Road construction/access is a major concern to declining [bull trout] stocks due to obstruction of passage by culvert placement, vegetation and large woody debris removal reduces shade causing warmer temperatures. Sediment introduction affects forage ability, embryo survival, fry emergence and winter survival.”46 · Mountain goats are sensitive to disturbance . . . and will be subject to a considerable amount of disturbance from truck traffic and avalanche control measure (cannon fire) along the lower 60 km of road [from the mine site to the Sloko/Nakonake junction].47 · “Given an average of one truck per hour passing through the area [of Shazah Pass] plus an avalanche control program during the winter, it is conceivable that resident goats might change their seasonal movement patterns, or become stressed by the disturbances with possibly serious effects for the population.”48 · Moose wintering in the Tulsequah, Taku, Nakina, Nakonake, and Sloko valley bottoms are vulnerable to localized extirpation following roaded access49. · There are 22 avalanche paths that threaten the road between the Mine site and the Nakonake/Sloko junction, with 11 of these avalanche paths posing a high avalanche hazard, defined as frequent events capable of killing people or damaging equipment.50

7 DISCUSSION

To date, the reconvened committee has focused on mitigation by evaluating which of the optional routes has the least impact rather than evaluating if there is any route that does not have an unacceptable impact. As TRTFN opposition, heritage trail conflicts, and negative impacts on grizzly bear habitat are sufficient reasons for the Ministry of Forests to reject the Kuthai North route, it begs the question why there is insufficient rationale to reject the Redcorp Heritage route, when this route has the exact same problems as the Kuthai North route. Other route options, such as Spruce-Wilson and Sloko-Goldbottom were also rejected, in part, due to impacts on wildlife, yet neither the Nakonake or the Redcorp Heritage Route options were rejected despite having similar impacts on grizzly bears, caribou, moose, and mountain goats. The same test for accepting or rejecting a road corridor should be the same for all route options, rather than picking the best of several bad options.

Given the many problems with each of the road alignments (of which the above review should not be considered exhaustive), there is no combination of road corridors from Atlin to the mine site, which do not have substantial negative impacts on either fish/wildlife populations or heritage trails, both items contributing to the sustainability of the Taku River Tlingit First Nation.

It is not sufficient for the reconvened committee to determine which road option poses the least amount of damage, if any of the road options would inflict an unacceptable level of damage to the sustainability of fish, wildlife, the Taku River Tlingit, or non-indigenous residents of Atlin.

It is the belief of the Transboundary Watershed Alliance that no road option presents an acceptable level of impact. Madam Justice Kirkpatrick’s judgment only directs the reconvened committee to produce a report that “meaningfully addresses the Tlingits’ concerns”51 and the TWA believes this includes assessing the level of the project’s impact.

If the EAO chooses a road option that mitigates impacts rather than rejecting a project that affects the area’s sustainability, than the EAO will simply be creating an ecology subsidy where the loss of wildlife and First Nation sustainability will be the price for improving Redfern’s profit margins.

The Transboundary Watershed Alliance suggests that there is no road route to the mine that has an acceptable environmental impact and that the reconvened process should be assessing this concern.

8 Section 2: Rebuttal of reports assoc. w/ reconvened process

Tulsequah Chief Mine Access Route Study by McElhanney Consulting

It is unfortunate that this study excluded the Nakonake road route from its analysis, as such an overview would have been an invaluable summary of the road’s impacts over its entire length.

Alternative Route Options Tulsequah Chief Mine Access by LM Kelly

This report has several problems, including understating the impact on caribou and grizzly bears.

During the Technical Working Group meeting for the issuance of the Special Use Permit, the area of the Silver Salmon (Redfern alignment) was identified as a migration corridor for grizzly bears and not a high use area. This implies that the Redfern alignment is located along terrain that, while providing habitat for bears, is utilized for migration and a road in this location will have little direct impact on bear populations. The bears migrate to and from a food source, which is assumed to be the Kuthai Lake – Sloko Burn area.52

The above statement is contrary to Fuhr’s report, which states: “Alignments that are in close proximity to . . . . the Silver Salmon River have increased risk to grizzly bear and salmon.”53 The assumption that the Silver Salmon Valley is only used by grizzly bears as a migration corridor is believed to be false, with the river being a source of grizzly bear food and may have other values as well. That assumption that overlapping a mining road with a grizzly bear migration corridor will have little direct impact is a poor assumption. As the Silver Salmon valley is a migration route, bears would walk on the road placing them in conflict with mine traffic resulting in habitat displacement and disturbance of bears using this habitat.

A second problem in the Kelly Report is the conclusion that the Warm Bay option “will provide for significant benefits to the Atlin caribou herd”54 which ignores the fact that the O’Donnel portion of this route also goes through the Atlin herd’s winter range. The proposed road will most likely result in “substantial impacts”55 to the herd in the O’Donnel area.

The overall problem with this report is it was designed to identify the route with the least amount of impact, rather than assessing whether or not the best route, including the Nakonake alignment, will have an acceptable level of impact of the sustainability of fish, wildlife, the Taku River Tlingit, and non-indigenous residents of Atlin.

9 Tulsequah Project: Fish, Wildlife, and Habitat Overview of Road Corridor Options Final Report by Brian Fuhr

The overall problem with this report is that is was designed to identify the route with the least amount of impact, rather than assessing whether or not the best route will have an acceptable level of impact of the sustainability of fish and wildlife population. This report contained several problematic statements that understate the value of caribou and fish habitat.

The report states that “the Heritage Trail [road route] . . . . has low caribou habitat value”56 which is in error and is contradicted by a previous statement in the report, which states that caribou winter range extends “along both sides of Dixie Lake to the southern end of Tawina Lake”57 adjacent to the Redcorp Heritage Route. The report should be amended to change this error in fact.

The statement that “The Heritage Trail option has low to no fish habitat value near most of its length”58 is a value judgment in comparison of fish habitat along other alternative road alignments. This statement should be clarified to state that the value judgment in relative to other routes and that the Heritage Trail Route does impact high value high habitat, including its location for two kilometers within 200 metres of the Silver Salmon River.

The report failed to provide fish, wildlife, and habitat overview for the section of the proposed road from the mine site to the junction of the Nakonake & Sloko Rivers, even though the Nakonake alignment has bull trout and very high grizzly bear values. The Nakonake road alignment also has small populations of mountain goats and moose that will be highly impacted by the road. Wildlife information should have been made available for all sections of the proposed road to evaluate the risks to wildlife and cultural values for each road section. While wildlife information for the Nakonake route is not present in the Habitat Overview of Road Corridor Options, the Annual Progress Reports: Year 2000 provides some details on the wildlife populations located on this section of the proposed road route:

· There are mountain goats within close proximity to the proposed road that need further evaluation to determine the extent of their habitat use.59 · That a small population of moose spends the winter in the Nakonake valley bottom that would be extirpated by the road.60 · While the government’s grizzly bear study has not been released for the Tulsequah Chief project area, it is understood that the Nakonake grizzly bear population is provincially significant. The only road route from the Sloko/Nakonake junction to the mine site would intersect prime grizzly bear habitat and high use travel corridors. · Within the Nakonake River tributaries, bull trout and Dolly Varden were found in the water systems sampled. 61

10 Summary of Fish and Wildlife Inventory, Tulsequah Chief Project Area by Edie and Associates

Edie’s report summaries fish and wildlife inventories completed to date and “where necessary, provides information that may be important to the interpretation of the results.”62 Unfortunately, the author does not provide any critique of the summarized reports, even though such critiques would be “important to the interpretation of the results.”

The following critiques of Rescan’s wildlife inventories should have been included in Edie’s report to enable readers to evaluate the inventory information contained within each summary.

Farnell writes: It is important to note that short term field studies [by Rescan] of this kind have limited value because they were carried out during times that failed to identify the occurrence [sic] of chum and fry, , sockeye salmon, and steelhead smo lts because they would have out-migrated by this time in their life cycle periods. Moreover, the occurrence of in the June 1995 sampling reflects what seems a sparse occurrence following a record year for coho escapement that surpassed the previous record by twice that amount. The limited value of these field studies is further supported by its failure to identify the occurrence of cutthroat trout.63

Much of the data for [wildlife] assessment [by Rescan] stems from 12 surveys carried out on 9 field trips between August 1994 and September 1996. These surveys were non-systematic and do not quantify the wildlife species in the area. There is therefore no way of assessing population trends from natural or human caused forces. Some of this record [by Rescan] reflects observer activity, not wildlife distribution and abundance.64

The survey technique and track counts [used by Rescan] used to evaluate moose do not provide reliable estimates of moose abundance.65

Limitations of the survey and habitat evaluation techniques used in the [Rescan] study failed to identify the importance of the O’Donnel River lowlands as a winter range for the Atlin caribou herd.”66

The [Rescan grizzly bear] survey intensity was not adequate for assessment purposes.67

Wolves were only superficially covered by the [Rescan] study.68

Wildlife studies [by Rescan] as they stand thus far do not provide adequate baseline information for assessing the impacts of mining operations.69

Shackleton writes: For most species, I do not believe that sufficient wildlife data have been collected by the proponent [Rescan on behalf of Redfern] to present a reasonable understanding of the wildlife resource baseline. This is because 1) the survey data are basically reconnaissance-level and are methodologically flawed; 2) the proponent relies heavily on broad-scale habitat capability/sustainability map information; and 3) no data were collected from any control site.70

11 Some specific examples of data problems are:71

Mountain Goat – different seasons, different years, different survey intensities; short duration (1-3 days max/year), with one year’s survey consisting of a “conservative one-pass level” survey; size of survey area are different between years; only one survey in the critical winter period; counts only, no age-sex composition; inadequate to discuss seasonal distributions or populations parameters; uncertain whether the area estimated to be affected is corrected for slope when measures on map.

Moose – One 3-day winter survey insufficient for winter distribution & habitat use; no movement data or seasonal habitat use data; inadequate description of sampling intensity, methods, plot sizes, etc. unclear how use categories were determined and if they are equivalent across browse species, if a species’ score is meaningful or how it was derived; browse data difficult to compare because data are given by browse species in “mine site” study area, but by BEC zones for access road area.

Caribou – Four flights (between March 2&5, 1996) were made in late winter one year; a “few” caribou sightings made in the access road study area, but no ranges were delineated nor detailed habitat descriptions provided.

Stone’s Sheep – A single 0.5 hour survey on March 2 1996 recorded no sheep; assessment of sheep habitat based solely on existing biophysical capability maps, field observations of “habitat conditions” (not explained) and air photo interpretation, but no other statement about habitat is provided other than that within the access study area it is has a mapped capability rating of class 4.

Grizzly Bear – besides incidental sightings, the majority of the data is derived from habitat capability/suitability maps; there were no systematic ground-based studies of berry producing areas or of salmon streams in terms of their availability or bear use, even though both berries and salmon are critical for growth and energy reserves (for hibernation) and hence survival of grizzly bears.

Furbearers – Data collected along five transects (4-6 km long) on two days in March 1996, provide only a very rough estimate of relative abundance.

Small Mammals – Trapping was carried out, but insufficient details of methodology (or even number of days – not “trap nights”) to assess whether data are adequate to address either species presence or relative abundance

Avifauna – Loosely interpreting the stands required in the FPRS – the data collected may be reasonable. However, with regard to aerial surveys, there amounted to three 1-day surveys (1/year) one of which was outside the breeding season, and one spring (breeding) survey was incomplete.

Siderius writes: Wildlife [inventory] studies [by Rescan] are not adequate to: 1) establish baseline population estimates; 2) monitor populations during the life of the projects; 3) predict changes in wildlife mortality due to the road or the mine; 4) establish criteria for recognizing when mitigation should proceed; and 5) suggest mitigation options.

12 Section 3: Brief Summary of the Impact of Roads

“In the remote corners of the province and throughout the Yukon there is no history of successful long-term road abandonment and reclamation that the study team is aware of. Generally such linear developments are left untended and unmanaged, orphaned by those who built them, with little attention by governments to their long-term impacts on habitat and wildlife, and the significant of unregulated and unmanaged public access.” page 60 of Pearse’s affidavit citing page 50 of the Staples Report

As mine traffic will run 24 hours a day, there is little doubt that the road has the potential to significantly impact wildlife. Roads of all types “affect terrestrial and aquatic ecosystems in seven general ways: 1) increased mortality from road construction; 2) increased mortality from collision with vehicles; 3) modification of animal behavior; 4) alteration of the physical environment; 5) alteration of the chemical environment; 6) spread of exotic species and 7) increased alteration and use of habitats by humans. Roads may fragment populations through roadkill and road avoidance.”72 Evidence from other places demonstrates that road restrictions and closures are ineffective and the impact of roads can be significant, far beyond just the immediate loss of habitat by the road itself.

Road Restrictions and Closures Are Ineffective

Examples of noncompliance with road closures: · 45% of snowmachine users did not register at a sign-in station in British Columbia · When using caribou habitat; 20% violated a closure area and 28% of those did so by greater than 2 km (Simson 1987)73 · In a National Forest in Idaho, of 10 roads administratively “closed” with gates by the US Forest Service for wildlife protection purposes, a spot check by the Idaho State Wildlife Department revealed 4 were not locked and were open to public use (Pollard 1991)74 · In grizzly bear Situation One habitat in Montana, 53 road closure structures (all gates) were inventoried. 38% were ineffective in restricting passenger vehicle access to 44% of the road system. 25% of the failures were due to trails circumventing the closure and half due to failure to lock gates. 100% of the structures failed to control snowmachine or ATV access (Hammer 1986).75 · In the Kootenai National Forest in Montana the US Forest Service is charged with limiting access to protect threatened grizzly bear populations and their habitat. 281 closure structures were evaluated behind which were 1355 km of supposedly protected road. 21.4% failed to control vehicle access and a further 25.3% failed to control ATV access. 64% of the roads claimed to be protected were not. Of the 281 structures, 146 were gates – their failure rate was 65.6%, higher than the overall failure rate of control structures (Platt 1993)76

13 · In 1994, the US Fish and Wildlife Service audited 87 barrier sites established by the US Forest Service in grizzly bear habitat in Idaho and Montana. 91% were passable by motorized trail bikes and 63% were passable by ATVs (Donaldson 1994)77 · In a Grizzly Bear Management Unit in Idaho 27 mapped road closure points were inventories; 4 had no closure device present. Only 30.4% (7 of 23) were effective in preventing vehicle access. Of 15 gates in use only 46% were effective and at 6 of these 7 there was evidence of use by people with keys (Skeele 1995).78

· When the Dalton Highway was built through the northern part of to support construction of the Trans Alaska Pipeline, vehicle traffic was to be restricted. It later was opened to the public, then “closed”, and is now reopened. During the second closure (about 1991 to 1994) “the prohibition was largely ignored and there was extensive hunting from the road” (Smith 1999). Traffic during a 15 day period in September 1993 while the road was “closed” totaled 635 private vehicles and 789 commercial and government vehicles. In 1998, after the road was “open” traffic count in only 11 days was 1077 private vehicles and 1044 commercial and government vehicles.79 · “[Karen Diemert] also stated at one point [during the wildlife subcommittee meeting, January 13, 1998] that the Ministry [of Environment, Lands, and Parks] did not consider gated roads as an effective mitigation option for wildlife impacts. This caused an immediate reaction by [Norm] Ringstad who bolted from his seat and left the room. He told me a few minutes later in the hall that he had placed a call on cellular phone to the executive director, Sheila Wynn, to report Karen’s remarks. He also told me that Karen had no right to make that statement. He was obviously upset. At a later point during the meeting while Karen was absent, Garry Alexander made a comment that Karen’s position did not reflect the ministry’s position.”80 · The Cheni/Lawyers road [to a mine site at Toodoggone Lake in the Upper Sustut watershed] . . . . was controlled by a 24-hour gate . . . . [which] lasted for about three years. Access to aboriginal people was denied at the outset of the project and this resulted in controversy until this restriction was lifted. Subsequently, the ensuring practice of non-aboriginal people accompanying aboriginal people through the gate was seen as a problem by the road manager. This led ultimately to removal of the gate. (MELP anonymous– quoted in Redfern Resources Access Road Survey Results. Appendix C6-2 of Project Report). 81 · The Klappan access road extends approximately 110 km eastward from Tatogga Lake on the Stikine highway to Gulf Minerals’ coal property at the headwaters of the Klappan River. An unmanned gate was established as a requirement of MELP during the permitting process and lasted approximately two weeks after being established. (Larry Pituley, Operator Gulf Minerals – quoted in Redfern Resources Access Road Survey Results. Appendix C6-2 of Project Report) After a number of incidents of removing locks and several changes in location of the gate, the company simply removed the gate. The operator reports that unknown numbers of moose, caribou, mountain sheep, mountain goat, grizzly and black bear have been hunted since the road went in.82

14 · The Golden Bear mine road A weekend excursion on the Golden Bear road. extends 150 km from the Stikine Photo credit: Jim Bourquin. Valley near Telgraph Creek to the mine site in the southern headwaters of the Taku drainage. A gate was installed near the start of this road and lasted for approximately three years. The gate was manned during the fall hunting season and kept locked by unmanned during the rest of the year. Numerous incidents of breaking locks or tearing the gate down with heavy equipment eventually resulted in abandoning all attempts to control access. According to the MELP survey respondent the implemented control measures “absolutely” did not restrict access. This source also indicates that in the order of 3-5 animals per year for each moose, deer, grizzly, and black bear were killed in vehicle collisions, and that several of each of these species, amounting to as much as 20 for each of moose and black bear, are estimated to have been killed by hunters each year. Since there is sporadic mining activity at the Golden Bear property, the road remains open today and allegedly only seasonally controlled. (Brent Smith, MELP. Quoted in Redfern Resources – quoted in Redfern Resources Access Road Survey Results. Appendix C6-2 of Project Report)83 · For the Kemess mine access road “unknown numbers of moose, deer and caribou were being hunted in the area under controlled-access ‘The manned gate was marginally successful until preferential treatment became a problem. The proponent could no longer afford to keep the gate manned so it was left open.’” (MEI anonymous. Quoted in Redfern Resources Access Road Survey Results. Appendix C6-2 of Project Report)84

The Impacts of Roads on Wildlife

· A mining exploration road in southwest Yukon produced a “dramatic” impact on the local moose population; the fall after construction 17 moose were killed about that road (Mychasiw and Hoefs 1988:18).85 · In the Northwest Territories hunters exploited a winter access road and killed 2000 caribou in one season (Donihee and Gray 1982). In another case in the Yukon, “a hunting party practically followed the caterpillar tractor being used to construct the road.” · O’Neill (1993) reviewed the impact of access on mountain goat populations in several areas of BC. In the Peace River region in the 1950’s, a herd of between 60 and 160 goats “were rendered extinct after several years of industrial development.” He cites Pendergast and Bindernagel (1977) “whatever the precise mechanism of the decline of goat populations in the NE coal block, there is a clear relationship between access and goat numbers. Nowhere in the coal block is there

15 a healthy goat population with nearby road access” and Phelps (1983) who stated unsustainable mortality “was responsible for the drastic declines of newly accessible mountain goat herds in the East Kootenay area of BC.”86 · Caribou are predicted to be particularly vulnerable to linear impacts because of the importance of seasonal and traditional movement patterns (Klein 1979; Bergerud et al. 1984; Gautheir el al 1985; Skogland 1986). There is reason to suspect that road barriers will interrupt learned, traditional movement patterns, possibly resulting in a long-term functional loss of habitat (Cameron and Whitten 1979; Cameron et al. 1985; Gunn 1983; Dau and Cameron; Smith 1988, etc.) which may modify nutritional status, predator avoidance strategies, and/or energy expenditures, and consequently impact productivity (Klein 1979; Cameron 1995; Bergerud et al. 1984; Cameron et al. 1992).87 · Of 21 woodland caribou herds in the Yukon, 8 occupy remote ranges and 6 of these number between 1,000 and 10,000 and are perceived to be healthy. Of those 13 herds in contact with highways or mining roads, 11 are at low density and considered fragile.88 · Numerous studies reported an increase in mortality of moose from traffic-related deaths (Bangs et al. 1982; Child et al. 1991; Del Frate and Spraker 1991; Lavsund and Sandegren 1991; Oosenbrug et al. 1991) particular in areas where moose are attracted to roadside salts (Grenier 1973; Fraser and Thomas 1982; Miller and Litvaitis 1992; Jolicoeur and Crete 1994) and where roads provide relatively snow-free travel conditions in deep snow areas (Child et al. 1991; Lavsund and Sandegren 1991).89 · In Alberta, Caribou were disturbed from loud noises that simulated petroleum exploration, enough to probably cause above average weight loss and lower reproductive success (Bradshaw 1994).90 · Over 80% of 118 recorded grizzly bear mortalities in Banff National Park between 1971-1995, were within 500 metres of a road.91 · Easier access, through construction of roads, [allow] predators to travel into caribou habitats.92 · James and Stuart-Smith (2000) reported a higher risk of predation [of caribou by natural predators] when they were closer to linear corridors.93 · Road assisted access plays the same role in facilitating predator movement into habitats and at times and frequencies that would otherwise be difficult or infrequent (Paquet et al. 1999).94 · Rescan (1997) also refers to one study in BC where log hauling was suspected of impacting the distribution of grizzly bears, consequently resulting in the avoidance of up to 23% of their original home range.95 · Caribou (Rangifer tarandus) in Alaska preferentially travel along cleared winter roads that lead in the direction of their migration (Banfield 1974). Although the road may enhance caribou movement, it results in increased mortality from vehicle collisions and predation by wolves. After calving, female caribou with calves avoid roads (Klein 1991).96 · Productivity of Bald Eagles in (Anthony & Isaacs 1989) and Ilinois (Paruk 1987) declines with proximity to roads and they preferentially nest away from roads.97

16 · Road crossing commonly act as barriers to the movement of fishes and other aquatic animals (Furniss et al. 1991).98 · The vast majority (83%) of man-caused woodland caribou mortality in west central Alberta occurs within 50 metres of a road (Edmonds 1988); cause and effect is obvious. Roads, as acknowledged by some management agencies (US Fish and Wildlife 1994) are one of two major forms of caribou habitat degradation and fragmentation.99 · In what is considered “compelling evidence” total autumn grown bear mortality was correlated with vehicle count and total km of road on Chichagof Island, Alaska. When 225 km of new logging road were constructed the mean annual known kill increased from 3.4 to 15.8 years/year (Titus 1991).100 · In a Montana ecosystem female grizzly bear telemetry locations demonstrated avoidance of a 500 metre buffer along roads; in fact, the investigators were hampered in their analysis “because of limited telemetry samples near roads (Mace et al. 1996:1396).101 · Six female brown bears that denned an average of 3.4 km from what became an operating silver mine on Admiralty Island, AK, denned on average 11.7 km away the year after construction began. (Schoen and Beier 1990).102 · In western Montana grizzly bears avoided a zone within 914 metres of roads, using them 20% as often as expected, based on availability of habitat.103 · Dispersed non-motorized activity . . . . (hiking, fishing, berry picking) can displace bears from a distance of 3 km and alter their activity for at least 24 hours (Schleyer et al. 1984).104 · “Experts on the species maintain that mountain goats will avoid areas where there is motorized activity. Cote reports that a goat population in west-central Alberta that has been exposed to about 3-5 people per day since 1988 still flee when people come within 200 metres or ATV’s within 1 km. Goats in his study area do not approach a coal mine closer than 4 km (Cote, 1997 pers. Com. To Tony Pearse). Further, information from his field studies reveal that helicopter and ATV noises causes reactionary behaviour in mountain goat, even when the source is up to 2 km away. One significant effect, aside from escape injury is nanny/kid separation, which leads to reduced survival of orphaned kids”105 · Vehicle traffic where human activity outside vehicles is restricted, as in the shuttle bus system in Denali National Park, AK, resulted in 38% of the stone sheep within 400 metres of the road fleeing when encountering vehicles (Singer and Beattie 1986). These were unhunted sheep that do not have a long history of negative association with man based on mortality or pursuit. When vehicle regulations were lifted to allow the unrestricted use of private vehicles in Denali, significantly more sheep responded to vehicles by fleeing. 106 · In a case where stone sheep range was bisected by a road, built for the purpose of obtaining gravel, sheep abandoned part of a range for at least three years rather than cross the road. In 1983 traffic decreased but sheep use remained sporadic and infrequent as of 1985 (Krausman and Leopold 1986). 107

17 Section 4: Previous Concerns

As it is unknown whether the reconvened environmental assessment process will consider previously submitted arguments, the Transboundary Watershed Alliance wishes to place the following statements on the public record for the reconvened process.

Caribou Highway Mortalities

In addition to impacts caused by the access road from Atlin to the mine site, mine traffic from Atlin to the port of Skagway also poses a threat to wildlife, such as caribou:

Highway fatalities are the major non-natural source of loss to this herd [Carcross caribou herd, also known as the Atlin West herd in BC] and when combined with the BC [hunting] harvest, result in little if any growth potential. Unquestionably, more vehicles on the road as a result of the plan to haul mine ore through the Yukon will increase highway fatalities [of caribou] on the Atlin Road, the Alaska Highway, and the Skagway road. These are clearly working directly contrary to our recovery efforts for the Carcross herd. 108

Wildlife Impact Assessments by Rescan Were Flawed

Biologists who have critiqued the mine proponent’s wildlife studies include: · Norman Barichello, professional wildlife biologist and natural resources consultant, M.Sc. · Rick Farnell, consultant and caribou biologist with the Department of Renewable Resources of the Fish and Wildlife Branch of the Yukon Government, B.Sc. · Alejandro Frid, research ecologist, M.Sc. · Brian Horesji, wildlife scientist, Ph.D. · Francois Messier, Professor in the Department of Biology of the University of Saskatchewan, Ph.D. · David Shackleton, Professor in the Faculty of Agricultural Sciences of UBC, Ph.D. · Joanne Siderius, ecological consultant, Ph.D.

Barichello writes: Rescan’s (1997) superficial treatment of potential impacts [on wildlife], by largely ignoring impacts other than habitat loss, ignores a large body of literature and yields a biased conclusion that large mammals will habituate to roads and traffic. Their conclusion that access can be controlled, the road can be decommited [sic], and hunting can be limited is, in my opinion, very naïve. Furthermore, they have given inadequate attention to the potential impact of blasting and avalanche control, aircraft overflights, and the risks from unregulated recreational traffic.109

18 Farnell writes: Assessment of impact on mountain goats is of particular concern in relation to the proposed development. Goats are sensitive to disturbance . . . .and will be subject to a considerable amount of disturbance from truck traffic and avalanche control measure (cannon fire) along the lower 60 km of road.110

Because road traffic will parallel and cross moose wintering areas, vehicle collisions with moose will be unavoidable and cause direct attrition of their numbers. Road collisions and higher predation rates made possible by the road could disrupt very fragile predator/prey relationships and perhaps cause local extirpation of low density wintering groups. Because caribou will have to cross and re-cross the road in the O’Donnel lowland portion of the road throughout the winter months they will be exposed to the same road collision problems identified for moose.111

Frid writes: The extensive surveys and descriptions were done [by Rescan] in a vacuum from the concept of experimental design. There was not a single biologically independent control site (not to mention replicated control sites), and therefore . . . . the impact study is fundamentally flawed. Even if the wildlife counts and habitat analyses done by Rescan are very accurate, by themselves they do not constitute a reliable impact study.112 Why do we consistently invest less in [wildlife studies with poor methodologies] that we know will be inconclusive anyway?113

Although they [Rescan] do acknowledge instances in which industrial activities will cause some displacement of animals , their analysis is biased and shallow. It does not cite any of the experimental studies that found that ungulates harassed by human activities, including petroleum exploration, can suffer reductions in reproductive success (Yarmoloy et al. 1988; Harrington & Veitch 1992; Bradshaw 1994). It also omits a report in which mountain goats declined in response to disturbance from seismic exploration (Joslin 1986), and studies that found industrial activity had the long term impact of displacing caribou (Dau & Cameron 1986; Chubbs et al. 1993). It also fails to recognize that, even though animals may habituate to some degree and not run away when faced with human-related stimuli, disturbance decreases foraging efficiency, and thereby has the potential to reduce reproductive success (Berger et al. 1983; Sockwell et al. 1991; Frid in preparation).114

Concerns over Current Impacts to the Taku Grizzly Bear Population

While the Taku, Nakonake, and Nakina grizzly bear population is on par with BC’s highest grizzly bear population densities, this bear population has already been impacted. Phil Timpany is a wildlife photographer, filmmaker, and fisheries technician has spent thousands of hours filing grizzly bears in the Taku watershed since 1976. In an undated letter to Don Weir, Mr. Timpany states: “Based upon my experience and observation, this decline [of large, mature bears in the Taku watershed] is likely due to hunting and poaching pressure, and the declines in the salmon runs, particularly .” That this population has already been impacted, despite its remote location, demonstrates that increased access will decrease the bear population in one of BC’s grizzly bear strong holds.

19 Threat of Avalanches at the Mine Site

“Avalanches that could threaten those facilities [the Tulsequah Chief mine site] will be rare, but catastrophic events. Heavy precipitation accompanied by easterly winds would likely lead to the rapid loading of those start zones.”115

Building Costs of Access Road

While Redfern has estimated that it would cost $30.4 million dollars to build the access road, an independent analysis by Paget Engineering estimated that the road would cost $55.9 million116 to build. It is unknown if government subsidies would be required to subsidize the road’s building costs.

Redfern’s Obligations under the Project Report Specifications

“In the Wildlife Sub-committee meeting of February 13, 1998, it was unanimously agreed that the baseline information requirements [of the Project Report Specifications] had not been met. Under what can only be increasing pressure to approve the project, the Ministry [of Environment, Lands, and Parks] has introduced a new concept to the science of impact assessment in its attempts to rationalize how (even though baseline studies are deficient) the information we do have, is acceptable at this stage of the review. The concept itself defies logic – either we have sufficient information to identify wildlife impacts or we do not. Moreover, are we now to understand that a simple memo from an Assistant Deputy Minister [Jon O’Riordan, dated February 13, 1998], without any technical or scientific support, can override the information requirements set out in the Project Report Specifications?”117

Engineering Concerns

As outlined by Paget Engineering Consultants Ltd, concerns include: · Lack of a credible construction plan which requires an estimate of quantities to determine progress; · Inadequate provisions for safety of heavy trucks on long sustained downhill grades such as runouts and barriers; · The improbability of balancing the cut and fill quantities because of steep sidehills over most of the road as located between km0 to km77; · The need for sites that could contain large quantities of stripping, waste, and surplus excavation; · The lack of identification of sources of gravel to surface the road; · The lack of consideration of the quantities of the individual components to complete the roadway; · The environmental issues involved with stockpiling supplies, equipment, and fuel at the confluence of the Sloko and Nakonake Rivers; · The probable degradation of water courses resulting from the potential of an uncontrolled spring runoff from the disturbed ground after clearing and grading of the temporary winter access road between km120 to km60 for transporting supplies and equipment in advance of construction of km60 to km25.118

20 Section 5: The Question of Sustainability

For this reconvened assessment process to comply with the court order, all concerns identified by the TRTFN in their Report and Recommendations should be addressed – indeed, the TRTFN’s report should be used as a checklist. This process should ensure that the information required by the Project Report Specifications, but that was not supplied by the proponent, should be provided. In order to meet Madam Justice Kirkpatrick’s order to “meaningfully address the Tlingit’s concerns,” there is a strong need to assess the cumulative impacts of the Tulsequah Chief access road by other industrial users. In the context of addressing all of the Tlingit’s concerns, three issues stand out: sustainability, access, and cumulative impacts of other industrial users.

Sustainability

Anthony Hodge’s Report poses three questions regarding the sustainability of the Tulsequah Chief Project:

Fundamental questions to address in a sustainability assessment

1. Ecosystem Conditions (ENDS)

1. Will implementation of the mine and access road ultimately lead at least to maintenance of ecosystem well-being, preferably an improvement?

2. Peoples' Condition (ENDS)

2A. Will implementation of the mine and access road ultimately lead at least to the maintenance of the well-being of the Taku River Tlingit, preferably an improvement?

2B. Will implementation of the mine and access road ultimately lead at least to the maintenance of non-Tlingit well-being, preferably an improvement?

3. Peoples' Actions (MEANS)

3A. Will the success of the market economy and non-market activities be maintained or improved through implementation of the mine and access road?

3B. Are adequate institutional arrangements and governance mechanisms in place to support the above?

As the access road will have a negative impact on the very high wildlife and wilderness values, it would be very difficult to answer the above questions in the positive given the high degree of interaction between the Tlingit and these values in the Taku watershed. The affidavits submitted to the Court on behalf of the TRTFN clearly outline the cultural significance of the project area to the Taku River Tlingit. Tony Pearse’s affidavit states:

“The EAO Recommendations Report takes the approach, as does the proponent, that impacts to the heritage trail can be mitigated by simply fine-tuning the road alignment in the field to minimize intersections with any trails. This approach ignores the spiritual and inspirational significance of the trails to the Tlingits. Citing the Staples Report: “The

21 road’s potential direct impacts on TRTFN traditional land use activities are not confined to the road corridor. The proposed road intersects three TRTFN trails, which historically have provided access to camps and harvesting areas in their traditional territory, as well as to the Taku River. This, along with the possibility of ineffective or unregulated road access, suggest that in time the road itself would act as a “feeder” route to these trails, providing hunters, fishers, and other backcountry users still further access into highly valued TRTFN hunting, fishing, and trapping grounds. This disturbance is potentially very significant for the TRTFN harvesters who use these trails and the camps and cabins they connect. These locations represent some of their most favoured traditional use areas, and public access to these trails will bring other land uses and competition for fish and wildlife resources directly into conflict with them and affect their harvesting efforts.”119

Bryan Jack’s affidavit states:

“The Taku River and the Nakina River are very sacred to the Tlingits. This is the heart of the Tlingit territory. All along the Taku/Nakina I have seen signs of our people’s presence. There are gravesites and caches. I have walked all along this river and the mountains and valleys in the area. The road will be close enough for us to hear it each time a truck goes by and I believe that Redfern told us that a truck will go by every hour. For me and for my family the road will be a huge and noisy invasion into our lives and land.”120

The report of the Ministry of Forests states that conflicts with the Heritage Trail are unavoidable: “With the elimination of [the Sloko-Goldbottom route] there is no other route that eliminates conflict with the Heritage Trail.”121 The reconvened process has an obligation to evaluate the impact of the road and determine if the level of impact would affect the sustainability of fish, wildlife, the Taku River Tlingit, and the non-indigenous residents of Atlin as outlined in the Hodge report. The Transboundary Watershed Alliance believes that the impacts of the road on several heritage trails and the likelihood of the road to extirpate local wildlife populations are sufficient grounds to reject the road.

Access

With approximately 500 hunters from around BC who annually travel to the Atlin region to hunt,122 the Tulsequah Chief access road could have a significant impact. The promise of an extra Conservation Officer for a ten year period123 seems highly unlikely in the current political climate of the Gordon Campbell government. Given the evidence that gates are ineffective, as documented earlier in this report, it is likely that human access on this road will have a significant impact on wildlife, even if that access is restricted to mine personnel, government officials, and the TRTFN. The proposed road restrictions would not initially be legally enforceable,124 and the provincial government would only impose laws to restrict access if voluntary acceptance proved inadequate. The impact on wildlife will be even greater, if other users have access to the road either now or in the future.

As “closed” roads do not prevent access, as documented earlier in this report, the reconvened committee must take this into account when assessing the impact of the road on the area’s fish and wildlife populations. Also, the gate will be in the O’Donnel valley area, allowing unrestricted access for all people up to that point. The examples of “restricted access” at Golden Bear, Cheni, Klappan, and Kemess do not inspire

22 confidence. The Klappan road was never decommissioned even though the coal mine did not proceed. The reconvened process must assess the Tulsequah road’s impact, including the use of the road by ATVs and snowmachines, in the context of the new provincial government’s priority of reducing government resources. The success of managing access to critical wildlife habitat in the States has not been high and “US agencies have far more resources (funds and personnel) than do BC agencies, but even with that advantage they are unable to implement and enforce access controls.” 125

That the Tulsequah road will most likely remain open, as the EAO Recommendations Report states: “On closure, if no other legitimate use have been established, the road will be deactivated . . . . ”126 Therefore, the reconvened committee must assess this road as a permanent road into the region attracting other industrial users. Also troubling is the reclamation bond for the Golden Bear road was reduced at the request of the mining company to exclude small structures, such as some culverts, which often pose the biggest risk to road failures. While the future of the Golden Bear road is unknown, it is unlikely it will be decommissioned and will be a permanent feature in the region. The Tulsequah road must also be assessed within the context of access management at the Golden Bear, Klappan, Kemess, and Cheni.

Cumulative Impacts

The Environmental Assessment excluded other industrial uses from its assessment of cumulative impacts, even though the area is an active mineral exploration area and a road would facilitate numerous industrial users including forestry: “if the Tulsequah Chief road proposal becomes a reality, I [Gary Miltonberger] would come under pressure to make timber from that area available to the forest industry.”127 Miltonberger’s letter should have been a sufficient trigger to include forestry within the assessment of cumulative impacts. Two reports prepared for the Northwest Institute for Bioregional Studies also argue that other industrial users should have been included in the assessment and that the Act triggers such an assessment.128 129

The TRTFN’s Report and Recommendations identifies the access road as the source of cumulative impacts:

“Instead of occupying the typical role of a minor infrastructural part of a larger industrial project, the road in this case has importance as a harbinger of potential environmental effects that may far exceed those of the mine itself. In the grand scheme of things, the road is of much more strategic significance to future impacts than the mine.

The issues relating to the road are numerous and complex. There is, first of all, the strategic issue of building a 160 km road into the pristine wilderness of the Taku drainage. The strategic issue surfaces not only because of the national and provincial significance of the affected landscape, but also because the area in question is the subject of treaty negotiations between the Crown and the Taku River Tlingit First Nation. Additionally, the area is proposed as a candidate in the near future for land use planning by, respectively, TRTFN and the Province. These issues, key to the stated intent of the Act, have not been addressed as part of the EAO Recommendations Report, and we discuss this problem below.

23 Beyond the question of whether or not the road should be built . . . . There are then a host of issues mostly related to managing access to the area by other users, and to controlling mortality impacts to fish and wildlife resources over the lifetime of the mine. Finally, at the end of the day, loom the substantive and over- arching concerns related to mine closure and the fate of the road. Here it must be assumed, as the Project Committee has rightly done, that the road will remain open despite the intentions of Redfern to decommission and reclaim it at the end of their project.

It will be clear from this discussion that the Project Committee has identified a number of issues pertaining to the proposed road that have not been acceptably resolved at the time of writing this report. Some issues may be resolved in the near future, but others clearly will require two or three more years’ of investigation before we have sufficient information before us to properly assess the environmental risk posed by the project and to properly plan for its safe operation.”130

Such an assessment is critical to determining the road’s full impact on wildlife: “If a vehicle is associated [by an animal] with a sense of insecurity, alarm, or fright, it matters little who it belongs to.”131 Of course, the impacts of mineral exploration, more mines and logging extend far beyond simply disturbing wildlife by passing trucks.

As cumulative impacts of other industrial users are a concern of the TRTFN, the reconvened committee should assess forestry and other industrial users as residual impacts of the Tulsequah Chief mine. When assessing cumulative impacts of other industrial and non-industrial users of the road, the reconvened committee must ask if the cumulative impact of future industrial development will negatively impact the sustainability of either the TRTFN, fish & wildlife, or the non-indigenous residents of Atlin.

Conclusion

The TWA asks that the reconvened committee address all of the concerns of the TRTFN, including assessing the project’s impact on sustainability, including access and the cumulative impacts of other industrial and non-industrial users. The reconvened committee must not look solely at mitigation, but rather assess if the road will have an unacceptable impact. If so, and we believe that it does, the road must be rejected.

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End Notes

1 Annual Progress Report: Year 2000 page 13. 2 McElhanney Consulting Services, Tulsequah Chief Mine Access Route Study, (Smithers: prepared for Government of BC, Ministry of Forests, Nov. 2000) Pages 2 & 4. 3 Brian Fuhr, Fish, Wildlife, and Habitat Overview of Road Corridor Options (Smithers: Government of BC, Ministry of Water, Air, Land Protection, August 2001) page 4. 4 Annual Progress Report, page 11. 5 Madam Justice Kirkpatrick, Reasons for Judgment in the Taku River Tlingit First Nation and Melvin Jack and Norm Ringstad, et al. (Vancouver: Supreme Court of BC, June 28, 2000) page 4. 6 May 23, 2000 letter from Art Smith, Southern Lakes Caribou Steering Committee to Don Weir, Taku Wilderness Association 7 Fuhr page 4. 8 Fuhr page 5. 9 Fuhr page 5. 10 Fuhr page 4. 11 McElhanney pages 10, 12, & 18. 12 Fuhr page 4 and Edie page 4. 13 Annual Progress Report, page 11. 14 May 23, 2000 letter from Art Smith, Southern Lakes Caribou Steering Committee to Don Weir, Taku Wilderness Association 15 Fuhr page 4. 16 McElhanney page 16. 17 Fuhr, page 4. 18 LM Kelly, Alternative Route Options Tulsequah Chief Mine Access, page 7. 19 McElhanney page 22. 20 Annual Progress Report, page 11. 21 Fuhr page 6. 22 McElhanney pages 20 & 24. 23 Fuhr page 6. 24 LM Kelly, Alternative Route Options Tulsequah Chief Mine Access, page 6. 25 McElhanney page 26. 26 LM Kelly, Alternative Route Options Tulsequah Chief Mine Access, page 7. 27 Edie Report, page 2. 28 Fuhr page 6. 29 Fuhr page 6. 30 LM Kelly, Alternative Route Options Tulsequah Chief Mine Access, page 1. 31 McElhanney page 28. 32 LM Kelly, Alternative Route Options Tulsequah Chief Mine Access, page 4. 33 LM Kelly, Alternative Route Options Tulsequah Chief Mine Access, page 5. 34Ibid page 5. 35 McElhanney page 6. 36 Annual Progress Report, page 11. 37 Fuhr page 6. 38 Fuhr page 5. 39 Fuhr page 7. 40 Tony Pearse Affadavit page 69. 41 Tony Pearse Affadavit page 70. 42 Fuhr page 8. 43 Pers Comm, Nov. 26, 2001, Ministry of Sustainable Resource Management. 44 LM Kelly, Route Feasibility Analysis of the Sloko River – Goldbottom Creek for Alternative Access to the Tulsequah Chief Mine Site (Smithers: Government of BC, Ministry of Forests) page 1. 45 Ibid page 17.

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46 Ibid. 47 Farnell page 3. 48 Report and Recommendations of the Taku River Tlingit First Nation, March 6, 1998, page 12. 49 Diemert page 11. 50 Hector MacKenzie and Christoph Dietzfelbinger, Preliminary Avalanche Assessment of the Proposed Tulsequah Road (Smithers: Prepared for the Northwest Institute for Bioregional Studies, Oct. 31, 1997). 51 Justice Kirkpatrick page 32. 52 LM Kelly, Alternative Route Options Tulsequah Chief Mine Access, page 4. 53 Fuhr page 5. 54 LM Kelly, Alternative Route Options Tulsequah Chief Mine Access, page 7. 55 May 23, 2000 letter from Art Smith, Southern Lakes Caribou Steering Committee to Don Weir, Taku Wilderness Association. 56 Fuhr page 7. 57 Fuhr page 6. 58 Fuhr page 8. 59 Diemert page 9. 60 Diemert page 11. 61 Ibid page 19. 62 A. Edie and Associates, Summary of Fish and Wildlife Inventory, Tulsequah Chief Project Area (Victoria: Government of BC, Ministry of Environment, Lands, and Parks, November 2000) Page 2. 63 Richard Farnell, Review of Tulsequah Chief Project Environmental Assessment Studies (Atlin: Taku River Tlingit First Nation) Page 2. 64 Ibid, page 3. 65 Ibid page 4. 66 Ibid pages 4&5 67 Ibid page 5. 68 Ibid page 5. 69 Ibid page 7. 70 David Shackleton, Report on Tulsequah Chief Mine Concerning Wildlife and Wildlife Habitat Information and Prediction of Impacts page 2. 71 Ibid, pages 3&4. 72 Stephen Trombulak and Christopher Frissell, Review of Ecological Effects of Roads on Terrestrial and Aquatic Communities, Conservation Biology Vol. 14, No. 1, February 2000, page 19. 73 Brian Horejsi, Report on the Proposed Tulsequah Chief Mine Road; It’s Expected Impacts on Wildlife and Prospects for Mitigation (prepared for the Taku River Tlingit First Nation, February 1999) page 9. 74 Horejsi page 9. 75 Horejsi page 9. 76 Horejsi pages 9 & 10. 77 Horejsi page 10. 78 Horesji page 10. 79 Horesji page 7. 80 Tony Pearse’s Affidavit, February 9, 1999, pages 22 & 23. 81 Tony Pearse’s Affidavit, February 9, 1999, pages 49 & 50. 82 Tony Pearse’s Affidavit, February 9, 1999, pages 50 & 51. 83 Tony Pearse’s Affidavit, February 9, 1999, page 50. 84 Tony Pearse’s Affidavit, February 9, 1999, page 51. 85 Horesji page 8. 86 Horesji page 8. 87 Barichello page 5. 88 Barichello page 5. 89 Berichello page 5. 90 Berichello page 5. 91 Michael Gibeau and Stephen Herrero. Road, Rails, and Grizzly Bears in the Bow River Valley, 1999, page 1. 92 Citation: CCLUP Caribou Strategy Committee, Mountain Caribou Strategy (Williams Lake: Government of BC, October 2000) pages 36 & 37.

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93 Trevor Kinley and Clayton Apps. Mortality Patterns in a Subpopulation of Endangered Mountain Caribou. Wildlife Society Bulletin, Volume 29, Number 1, Spring 2001, page 162, 94 Horesji page 12 95 Barichello page 5. 96 Trombulak and Frissell, page 20. 97 Trombulak and Frissell, page 21. 98 Trombulak and Frissell, page 22. 99 Horesji page 14. 100 Horesji page 21. 101 Horesji page 22. 102 Horesji page 23. 103 Horesji page 23. 104 Horesji page 23. 105 Report and Recommendation of the Taku River Tlingit First Nation, March 1998, page 12. 106 Horesji page 17. 107 Horesji page 17. 108 May 23, 2000 letter from Art Smith, Southern Lakes Caribou Steering Committee to Don Weir, Taku Wilderness Association

109 Norman Barichello, An Evaluation of Rescan’s Environmental Assessment of the Proposed Tulsequah Chief Mining Development, (Smithers: Northwest Institute for Bioregional Studies, October 1997), page 6. 110 Farnell page 3. 111 Farnell page 4&5 112 Alejandro Frid, An Evaluation of Wildlife Research Related to the Tulsequah Chief Mine (Smithers: Prepared for the Northwest Institute for Bioregional Studies, Oct. 1997) page 4. 113 Ibid page 8. 114 Frid pages 6&7. 115 MacKenzie and Dietzfelbinger, page 11. 116 Correspondence from Norris Paget to Allan McDonell, Oct. 28, 1997 117 Report and Recommendations of the Taku River Tlingit First Nation, March 6, 1998, page 9. 118 Paget, page 2. 119 Affidavit of Tony Pearse, pages 69 & 70. 120 Affidavit of Bryan Jack pages 2-6. 121 Kelly page 1. 122 Horesji page 7. 123 Correspondence from Jim Yardley, MWALP to Tony Pearse, March 2 1998, page 1. 124 Correspondence from Jim Yardley, MWALP to Tony Pearse, March 2 1998, page 1. 125 Horesji page 10. 126 ECO Recommendations Report, page 79. 127 Gary Miltonberger, District Manager, Cassiar Forest District, letter to Terry Chandler, VP Redfern Resources, Aug 9, 1995. 128 Glenda Ferris, Technical Analysis of Proposed Tulsequah Chief Mine (Smithers: Northwest Institute for Bioregional Studies, Nov. 3, 1997) pages 26 & 27. 129 Barichello pages 8 & 9. 130 TRTFN Report and Recommendation, page 5. 131 Horesji page 7.

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