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SWAN RIVER FIRST NATION
P.O. Box 270 Kinuso, Alberta T0G 1K0 Phone: (780) 775-3536 Fax: (780) 775-3796
In response to the Joint Review Panel’s Information Request #1 to Swan River First Nation (“SRFN”), this document sets out SRFN’s comments on the mitigation measures proposed by Northern Gateway (“NG”)1 to purportedly address concerns raised by SRFN regarding potential Project impacts.
By way of overview, SRFN’s paramount concerns about the Project – and its impact on SRFN’s traditional lands, culture, treaty rights – remain unresolved and unaddressed, notwithstanding the good faith efforts of SRFN to raise these matters with NG and before the Joint Review Panel.
Because of budget and resource constraints, SRFN is not in a position to respond comprehensively or in detail to each “mitigation” proposed by NG as a response to SRFN’s concerns. Instead, below, we have made best efforts to review NG’s failure to address some of the key “Specific Issues or Concerns Raised by Aboriginal Group” as described by NG for SRFN in Exhibit B40-4, Northern Gateway Response to Panel IR No. 5.9. SRFN was assisted in the preparation of this document by independent technical advisors, Management and Solutions in Environmental Science (“MSES”).
Surface Water
SRFN Concern: Potential adverse effects on waterways during construction, effects on water from spills will adversely affect SRFN’s ability to exercise treaty rights. [Exhibit B40-4, p. 176]
NG states that “[t]he mitigation measures address the concern”. SRFN strongly disagrees.
In testimony to the Panel, SRFN members emphasized the highly degraded state of their traditional lands, particularly in the Swan Hills region, and the devastating impacts on the community and culture from rapidly deteriorating water quality over the past few decades:
The mitigation measures proposed by NG to date do not address these concerns. Although NG says that it will permit SRFN to monitor construction and is committed to directional drilling “where warranted”, SRFN’s involvement in environmental monitoring remains unclear. NG also commits to supporting community based monitoring programs, which may be useful to SRFN,
1 In Exhibit B40-4, Northern Gateway Response to Panel IR No. 5.9.
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but the nature of this support in terms of assisting the community to build adequate capacity, must still be clarified. Measureable parameters and performance targets for the monitoring programs also need to be developed. Monitoring programs remain highly conceptual at this stage and cannot provide confidence to the community that they will actually prove effective or collaborative upon implementation.
The statement on p. 177 that “Aboriginal groups will be utilized in respect of protection of cultural resources as opposed to wildlife, vegetation and habitat protection…” indicates that NG still needs to acquire a better understanding of the concerns raised by Aboriginal groups and much work is required before NG will be ready to incorporate SRFN’s input on cultural needs. Biophysical resources are the foundation of traditional cultures; hence, the SRFN must be given a say in how not only cultural, but also biophysical resources will be protected.
The “Construction EPMP” developed by NG in order to protect biophysical resources contains a number of key information gaps that need to be filled before NG, and SRFN, can be assured of its effectiveness and reliability.
Water quality
SRFN Concern: Effects on water from spills will adversely affect SRFN’s ability to exercise treaty rights. [Exhibit B40-4, p. 178]
9077. We know of many spills out in our territory. It causes us great concern because when we live our way of life out on the land are we now poisoning ourselves because of somebody’s development, somebody’s lack of consultation on a given project or a more broader basis to address cumulative effects and I don’t know what kind of protections are on our waterways or even in our air.
9078. We’ve had many concerns with Alberta about the lack of air monitoring, the lack of water monitoring in our traditional territory …
…
9080. You can see the waterways, they’re not clean; there’s plenty of rust, and you can see the discolouration of plants out on our territory; and we can see all the deformities in some of the moose and some of game and the fish. Like this has been going on for years and I don’t see it stopping until the land is fixed, it’s reclaimed.
- Chief Chalifoux, Panel Hearing, January 26, 2012
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NG states that it completed an open house with SRFN that addressed pipeline integrity (spills, leaks) and that the mitigation measures address the concern. SRFN does not agree that its concerns have been addressed, by the open house or otherwise. Moreover, the open house primarily involved NG explaining its plans; while a useful start, this cannot be considered mitigation in itself, particularly as NG’s assessment to date has no addressed SRFN’s concerns.
In reviewing the current responses prepared by NG in the JRP IR 5.9 document, SRFN’s technical advisors, MSES, found little evidence that either “spill contingency plans” or “adequate measures” have been developed to alleviate the specific concerns raised by SRFN.
9252. One of the things when these pipelines come in, these oil and gas proposals, is there's associated spills with them. There's been at least four in the last year that we've been told about, that I know about and directly in the Swan Hills. One that was quite publicized in Little Buffalo area north by Peace River. And those are just the ones we know about.
9253. There are so many of these spills that we don’t even hear about. Yet, our members are out there hunting, using water from the creeks, eating from the land, and there could be a spill right beside them. This happens probably on a daily, weekly basis to our community and our members.
- Darryel Sowan, Panel Hearing, January 26, 2012
Recent spills by Enbridge pipelines and by other pipeline proponents demonstrate the plausibility of spills, accidents, or malfunctions and the potentially serious impacts to fish, waterfowl and mammals, riparian and wetland ecosystems, and water quality. Information provided by NG to date is similar to that which existed prior to these recent spills.
Indeed, just two days before this submission, the Globe and Mail reported confirmation from the Energy Resources Conservation Board that “[a]bout 230,000 litres of heavy crude oil spilled from a pumping station on an Enbridge Inc. pipeline onto farmland” earlier this week.2 SRFN supports the call for an independent review of pipeline safety in Alberta.
NG has not yet demonstrated that: a) spills on the Project are now less likely to occur, b) response to spills is more effective than it has been previously, and c) that environmental conditions after a spill have been demonstrably restored to pre-spill conditions.
2 Globe and Mail, June 19, 2012, Third oil spill fuels calls for Alberta pipeline review, available on-line at: http://www.theglobeandmail.com/globe-investor/enbridge-pipeline-leak-spills-oil-in-alberta/article4352760/
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Freshwater Fish and Aquatic Habitat
SRFN Concern: Fish health deteriorating [Exhibit B40-4, p. 178]
NG suggests that SRFN has concluded that “no effect is anticipated to result from the Project”. This is incorrect. Contrary to this statement, SRFN submitted information requests (“IRs”) which clearly outlined concerns about the pipeline effects to fish health and fish habitat. Please refer to the submitted IRs for further clarification.3
NG did not adequately respond to SRFN IRs and, therefore, has yet to address the concerns of SRFN.
Vegetation
SRFN Concern: Berries have been previously adversely affected; diminishing quality and quality of traditional plants and medicines on SRFN traditional lands; Project area is one of the intact areas still used by SRFN members for collecting plants and medicines. [Exhibit B40-4, p. 179]
NG states that “[t]he mitigation measures address the concern”. SRFN strongly disagrees.
NG’s commitments fall short of alleviating the concerns of the SRFN. Specifically, these commitments do not address concerns regarding:
Spills Invasive species Dust Edge effects Use of herbicides Cumulative losses of traditional gathering areas Importance of Project area as remaining intact gathering area
Impacts from these listed concerns can be spread over large areas. Indirect effects from the construction and operation of the pipeline will be measurable in the vegetation communities tens to hundreds of meters from the direct footprint of the pipeline. NG has yet to address this zone of influence.
SRFN submitted numerous IRs directly related to the health of its traditional resources.4 However, NG has yet to adequately respond to these IRs.
3 Swan River First Nation, Information Request #1 to NG (A35271). 4 Swan River First Nation, Information Request #1 to NG (A35271).
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Vegetation – Rare Medicinal Plants
SRFN Concern: Potential destruction of rare medicinal plants during construction of the RoW. Rare medicinal plant locations were identified from KP 234 to KP 239 and KP 274 to KP 279 along the RoW. Medicinal plant locations were identified from KP 234.5 to KP 239.5, KP 230 to KP 235, and KP 210.5 to KP 215.5 along the RoW. [Exhibit B40-4, pp. 179-80]
NG states that “[t]he mitigation measures address the concern”. SRFN strongly disagrees.
NG says that it will allow SRFN to harvest medicinal plants prior to direct disturbance. This is a minimal and incomplete mitigation of ongoing, severe impacts on gathering activities and treaty rights. SRFN elders noted that medicinal plants in areas directly or indirectly affected by industry are not useful. The elders noted that they now need to travel far away from industrial disturbances to collect medicinal plants, and the Project area is one of the remaining intact areas where members actively gather medicines – and this already involves extensive travel, because of the heavy contamination of their more proximate traditional lands.
9162. Another issue, we can no longer harvest our medicinal roots in the Swan Hill areas because of the pollution. We have to travel hundreds of miles in order to find a clean place where we could harvest our medicines. And in that place where we pick our medicines, that is where the intended pipeline is to be.
- Doris Courtoreille, Panel Hearing, January 26, 2012
SRFN submitted IRs regarding the health of their traditional resources but NG did not provide any meaningful responses to such IRs.5
Wildlife
SRFN Concern: General habitat destruction from construction of the pipeline. [Exhibit B40-4, p. 181]
NG states that it completed an open house with SRFN in 2005 that addressed wildlife impacts and that the mitigation measures address the concern. SRFN does not agree that its concerns have been addressed, by the open house or otherwise.
In reviewing the responses prepared by NG to the JRP’s IR 5.9 document, SRFN’s technical experts, MSES, found little evidence that the proposed mitigation measures directly address or alleviate the concerns of the SRFN.
5 Swan River First Nation, Information Request #1 to NG (A35271).
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SRFN submitted numerous IRs related to the assessment of impacts on, and protection of, wildlife. The IRs asked about how NG would:
measure the effects of mitigation; develop effects monitoring programs; use natural re-growth to re-establish pre-disturbance conditions; or measurably demonstrate reversing the effects from spills.6
NG did not adequately respond to any of these IRs and, therefore, has yet to address the concerns of SRFN.
Wildlife – Beavers
SRFN Concern: Potential effects on beavers encountered along the proposed RoW [Exhibit B40- 4, p. 183]
SRFN suggested that NG take steps to trap and relocate beavers, an important traditional resource, prior to construction. NG states that it “does not expect to undertake such measures” (i.e. trapping beaver), but then concludes that “[t]he mitigation measures address the concern”. This conclusion is patently incorrect – NG has explicitly stated that it does not intend to undertake the measures requested by SRFN.
Archaeological Resources
SRFN Concern: Impacts of construction on cultural and archaeological sites [Exhibit B40-4, p. 183]
Northern Gateway says that it will offer a further meeting or technical session to the SRFN that includes a component on archaeological baseline results. While such discussions may be a positive measure, they do not indicate that SRFN’s concerns are addressed or resolved; rather, they remain outstanding at this time.
Aboriginal Traditional Knowledge (ATK)
SRFN Concern: RoW will serve to further reduce areas in SRFN traditional territories; areas in which traditional activities can be performed will be further limited. [Exhibit B40-4, p. 185]
NG states that its mitigation measures address the concern. SRFN strongly disagrees.
6 Swan River First Nation, Information Request #1 to NG (A35271).
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In column E, NG states: “No impacts anticipated from the Project.” In the MSES technical review and in the land cover change analyses conducted for the traditional land use area of the SRFN, MSES indicated that industrial activities and the disturbances associated with them severely limit the areas in which traditional activities can be carried out.7 The “disturbance mapping” conducted by MSES demonstrates that much of SRFN’s traditional lands have been highly industrialized and disturbed within the past few decades.8 SRFN’s traditional lands have been further contaminated by the release of PCBs from the Swan Hills Waste Treatment Centre, with resulting provincial advisories limiting or cautioning against consumption of traditional resources.9
9052. … Swan River has so many concerns with development, the massive amount of development in our territory. We have waste treatment plants. We have pipeline spills. We have all kinds of things like that. We have studied the land; we have found contamination in the water. We have a 30-kilometre radius of certain areas where we cannot exercise our use -- use our land because of pollutants, because of PCBs, et cetera, those types of contaminations.
9053. This is -- this causes great concern because now where we once were we had vibrant land. It’s been so much taken up that we’re forced to travel, and travel farther and farther and farther away to hunt, to gather …
…
9084. We are forced to go further away; we are forced to go more to the east. We’re forced to go more south. We already travel further than the route of the pipeline. We’ve already been going further than that now, and in and around the area where the pipeline is.
9085. It’s really hard -- it’s really hard to be an Indian, I guess. And it’s really expensive because we now have to travel, like I said, hour, maybe two and then, we know the price of fuel and we have to take our food, we have to take water because can no longer drink the water in our streams out there, they’re contaminated. So there are many issues.
- Chief Chalifoux, Panel Hearing, January 26, 2012
7 MSES, High Level Review of the Enbridge Northern Gateway Pipeline Environmental Impact Assessment - Whitecourt to Fox Creek Alberta (Jan. 2011) (A2K1S2); MSES, Effects of Industrial Disturbance on the Traditional Resources of the Swan River First Nation (Dec. 2011) (A2K1S0). 8 MSES, Effects of Industrial Disturbance on the Traditional Resources of the Swan River First Nation (Dec. 2011), Exhibit (A2K1S0). 9 See, e.g.: FMA Heritage Inc., Aboriginal Traditional Knowledge Community Report (April 2010) (A2K1S1), p. 7-1.
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Chief Chalifoux and other SRFN members testified to the Panel that they now have to travel farther, to fewer and fewer intact areas, to maintain their traditional practices. The Project area is one of the intact areas that is actively used for traditional practices as members have been displaced from traditional lands closer to reserve.
9186. We go out -- we used to go out there and you could go on the hills and you’d look around, you’d see beautiful country, trees and everything, lots of game. Take you up to that same hill now and it almost looks like Saskatchewan. You know, all you see is pump jacks and lots of industries going on.
9187. And where they’re proposing to put this pipeline, it’s right in the heart -- right through the heart of where I go hunting and gathering plants, taking my friends and nephews, nieces, everybody, we go camping up there.
9188. It’s -- I don’t know. It’s just getting so sad because that’s like 150 miles to travel one way just to go get some fresh meat …
…
9196. If we have to go any farther than where we go -- where this pipeline is proposed, up through Fox Creek and at Whitecourt, if we have to farther hunting than that, pretty soon -- I don’t know. What are we going to do, go back to hunting in the parks? You know, we’re running out of anywhere to go, hunting or collecting our herbs, and if we have to go to the parks then we’re going to have nothing left for the future.
9197. I have 10 grandkids and I wonder what their grandkids are going to do.
9198. So, it’s hard to -- it’s really hard to put into words how a person feels about this, because it’s our future and our children’s future and their children’s future.
- Kevin Twin, Panel Hearing, January 26, 2012
The Project will further disturb an important hunting and gathering area and contribute to the overall degradation of SRFN’s traditional lands and the rapidly diminishing opportunities to maintain their traditional culture.
9234. I want to touch a little bit on the land issues that I've been experiencing in the last 20 years. You know, we show that all the industry and forestry that went into that territory why -- and that’s the reason why we're pushing further out. And our prime hunting spots now are on this pipeline.
9235. You know, there's not that much industry and forestry up there where the pipeline is expected to go. You know, we can still drink water from some of the creeks there which we can't in the Swan Hills area, there's nothing left there.
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9236. So I'm afraid the more pipeline and stuff that’s going up in there, is going to tear at the way our -- close to home is traditional territory, we can't drink nothing down there. You know, we can't find the animals in there anymore. So it's industry that’s -- and forestry that’s pushing them out.
9237. Like there's -- I'm really worried about the future for our young people, for their hunting …
- Councillor Ryan Davis, Panel Hearing, January 26, 2012
Given the change in land cover, it is impossible to conclude that there is “no impact” resulting from the NG proposed development. However, because of its dismissive response, NG has not yet provided the necessary mitigation measures that are required in order to help SRFN understand the impacts to their traditional activities or resources or to mitigate these very serious impacts on its cultural survival.
Cumulative Effects
SRFN Concern: Future proponents may blame environmental contamination on the Swan Hills WTC and not accept responsibility for contributing to declining environmental conditions. [Exhibit B40-4, p. 185]
NG describes this concern as speculative and outside the scope of the Project or its effects. However, by doing so NG demonstrates the relevance of the very concern that SRFN raised, namely that industry proponents do not “accept responsibility for contributing to declining environmental conditions.”
NG does not appear to be prepared to assist the SRFN in establishing regional baselines against which present and future regional impacts, including those of the proposed Project, could be measured.
Conservation and Reclamation
SRFN Concern: How area will be reclaimed after RoW construction. [Exhibit B40-4, p. 187]
NG states that its mitigation measures address the concern. SRFN strongly disagrees.
While contracting opportunities for SRFN in reclamation work and the intent to reclaim with native vegetation are useful commitments for future stages of the project, NG does not specifically provide any information on the details of their reclamation plans.
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9312. … [T]here's been no evidence of any right-of-ways going back to its natural state. I believe the responses are they're unable to prove that, but we would need to get more into the technical, probably argumentative stages to deal with that.
9313. But based on what our experts are telling us, the right-of-ways generally don't go back to its natural state even though companies are always telling us "It's going to go back; it's going to -- everything is going to be fine". And we know the reality of people being out on the land that it's not fine, it's not true.
…
9330. … [W]e want the land back to its natural state but -- and we’re always telling industry and some of these scientists that we want to be involved in these programs to reclaim it because we know what the natural state -- we live there.
…
9332. … [T]he First Nations people need to be involved because we’re the ones out on the land. And if we’re going to go back to its native natural state, who better to know than the people out on the land, not people sitting in Ottawa or wherever ….
- Chief Chalifoux, Panel Hearing, January 26, 2012
SRFN asked specific questions in their IRs about baseline sampling, re-vegetation strategies, and the measurement of reclamation success.10 The information provided to date by NG does not address the IRs or the mitigation requested by SRFN or provide confidence in the likely effectiveness of reclamation.
Construction – Impacts on Waterways
SRFN Concern: Potential adverse effects on waterways during construction. [Exhibit B40-4, p. 187]
NG states that its mitigation measures address the concern. SRFN strongly disagrees.
Although NG says it will permit SRFN to monitor construction and is committed to directional drilling “where warranted”, SRFN’s involvement in environmental monitoring remains unclear. NG also commits to supporting community based monitoring programs which may be useful to SRFN, but the nature of this support in terms of assisting the community to build adequate capacity, must still be clarified. Measureable parameters and performance targets for the monitoring programs also need to be developed.
10 Swan River First Nation, Information Request #1 to NG (A35271).
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Construction – Divergence from RoWs
SRFN Concern: Potential for Project to diverge from existing RoWs into undisturbed areas. [Exhibit B40-4, p. 189]
NG asserts that the pipeline will be constructed paralleling the existing RoW “where practical”. However, SRFN is concerned about the creation of new disturbances, the widening of the existing RoWs, and the addition of further fragmentation to the landscape. In this respect, NG does not provide enough information or an adequate response to address the SRFN IRs regarding new disturbance.
Construction – Work Camp
SRFN Concern: Potential effects from the construction of work camp (near Whitecourt) in an undisturbed area. [Exhibit B40-4, p. 189]
NG says it will engage SRFN further regarding the proposed location. This does not in itself resolve SRFN’s concerns. NG has not provided enough information or an adequate response to address the SRFN IRs regarding new disturbance.
Construction – Green Technology
SRFN has encouraged NG to use green technology. NG replies that this is outside of the scope of the project. This topic requires more discussion between NG and the SRFN as “green technology” should be understood in the broad sense as a technology that is compatible with the environment and the continued use of traditional resources. Any green technology should include mitigation measures and project design features that may well be in the scope of the project. This should be discussed in detail with SRFN.
Accidents and Malfunctions
SRFN Concern: Effects on water from spills will adversely affect SRFN’s ability to exercise treaty rights [Exhibit B40-4, p. 191]
NG appears prepared to demonstrate to SRFN how it would deal with spills. This information should be presented far enough in advance so as to allow Aboriginal groups and regulators an opportunity to review and assess the plans and discuss with NG any outstanding concerns.
NG states that “the cleanup procedures that are utilized to mitigate effects on the environment, should a spill occur” will be shared with SRFN. This implies that NG will rely on past experiences with spills. NG’s past experience is the subject of a number of IRs submitted by SRFN surrounding the various failures of other Enbridge pipeline projects and other
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proponents.11 Responses to these IRs remain outstanding. To our knowledge, NG has not yet provided the required quantitative information to demonstrate that ecosystems affected by spills have been restored to pre-spill conditions.
Accidents and Malfunctions
SRFN Concern: Concerns over likelihood of a spill/accidental discharge; measures in place to prevent this [Exhibit B40-4, p. 191]
Although NG commits to sharing its spill response plan with Aboriginal groups, this commitment does not indicate how or if input from the SRFN will be incorporated by NG.
IRs submitted by the SRFN emphasized the gap in effects-monitoring for spills.12 While NG discusses “spill readiness” it does not explain how the effects of spills and the success of cleanup will be monitored or assessed. Nor does NG show how current response plans or clean-up procedures are informed by past experience. Tangible and measurable data from previous spills and subsequent clean-up and remediation results are still required by SRFN.
Environmental and Socio‐economic Assessment
SRFN Concern: ATK studies are not meaningful if issues are not taken into account in decision making, and there is no follow‐up with communities [Exhibit B40-4, p. 193]
SRFN requested to be involved in the planning and operation of the proposed project. NG asserts that it “will discuss and seek guidance from the SRFN”. There does not appear to be much evidence in past project planning activities to show how NG might involve the SRFN.
Although NG held an open house to inform the SRFN about the use of ATK, it appears that the SRFN needs to have ongoing opportunities for input and feedback. It is unclear whether the ATK was applied adequately and whether additional information needs to be collected and integrated into project planning and execution.
Monitoring and Follow‐up Programs
SRFN Concern: Potential effects of chemicals used in maintenance of RoW after construction [Exhibit B40-4, p. 196]
11 Swan River First Nation, Information Request #1 to NG (A35271). 12 Swan River First Nation, Information Request #1 to NG (A35271).
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NG says it will offer a further meeting or technical session to SRFN that includes a component on community environmental monitoring. While such discussions may be a positive measure, they do not indicate that SRFN’s concerns are addressed or resolved; rather, they remain outstanding at this time.
Although NG asserts that post-construction monitoring is described in Vol. 7A of the EIA and that NG supports community involvement and community based monitoring, numerous issues remain unresolved that have been raised in the IRs submitted by the SRFN.13 This is particularly true for effects monitoring issues. See also the comments relating to community based monitoring under “Surface Water”, above, p. 1.
Little Smoky Caribou Herd
SRFN has stressed its concerns about the impacts of the Project on the Little Smoky Caribou Herd, both in its information requests to NG,14 and in direct testimony to the Panel:
9119. I know we have -- as we go further west to us where we have caribou herds, into the Little Smoky area. Caribou herds are in dire shape. They are at risk of extirpation. Our members of Swan River First Nation have Treaty rights to hunt caribou. This is part of our way of life but the members have chosen at this time not to hunt the herds because of the declining numbers and the risk, so this is an ongoing infringement of our Treaty.
9120. The pipeline will cross through critical habitat for the Little Smoky herd, and the Little Smoky herd is important to Swan River First Nation.
9121. There are about 78 individual caribou remaining. According to Environment Canada this puts the herd at high risk of extirpation. Environment Canada estimates that 95 percent of the required habitat is presently disturbed. Drastic and immediate emergency measures are required to protect the herd, and the pipeline will further fragment and disturb the habitat of this herd.
- Chief Chalifoux, Panel Hearing, January 26, 2012
NG has not even listed this as a concern for SRFN in Exhibit B40-4. To date, SRFN has not received an adequate response from NG as to how it can sufficiently mitigate the impacts of its Projects to prevent potentially disastrous impacts on a herd with a population below 80 individuals and with 95% habitat disturbance.15
13 Swan River First Nation, Information Request #1 to NG (A35271). 14 Swan River First Nation, Information Request #1 to NG (A35271). 15 Woodland Caribou, Boreal population was listed on Schedule 1 of the Species at Risk Act (SARA) as Threatened in 2003. The statistics cited here are from the federal Ministry of the Environment’s draft Recovery Strategy for the Woodland Caribou, Boreal population (Rangifer tarandus caribou) in Canada, Appendix F-3a, available on-line at: http://www.registrelep-sararegistry.gc.ca/document/doc2253pa3/appf3a_e.cfm#_006
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