Aamjiwnaang First Nation (“AFN”) and Chippewas of the Thames First Nation (“COTTFN”) Information Request No

Enbridge Pipelines Inc.

Application Pursuant to Section 58 of the National Energy Board (NEB) Act

Line 9B Reversal and Line 9 Capacity Expansion Project

NEB File OF-Fac-Oil-E101-2012-10 02

Written Evidence of Chippewas of the Thames First Nation

Affidavit of Joe Miskokomon Chief of Chippewas of the Thames First Nation

OH-002-2013 - File OF—Fac-Oil-E101-2012-10 02 August 6, 2013

Affidavit of Joe Miskokomon, Chief of COTTFN Page 1 of 47

AFFIDAVIT OF CHIEF JOE MISKOKOMON

I, Joe Miskokomon, Chief of the Chippewas of the Thames First Nation, MAKE OATH AND SAY:

1. I am a citizen and the most recently elected Chief of the Chippewas of the Thames First Nation (“COTTFN”) and as such I have personal knowledge of the facts set out herein, except where the facts are stated to be based on information and belief, in which case I believe that the facts as stated are true.

2. COTTFN is an Indian “Band” as defined by the Indian Act, R.S.C. 1985, c.I-5, as amended and our members are “aboriginal peoples of Canada” within the meaning of section 35 of the Constitution Act, 1982. Our reserve is located in southwestern Ontario west of the City of London in part of our traditional territory.

3. I was first elected Chief of COTTFN in July 1995. I have since been re-elected for 5 non-consecutive terms. An election is currently being held by COTTFN and I am running for re-election. In my capacity as Chief of COTTFN, I am involved in many Aboriginal rights initiatives to assert and protect COTTFN’s Aboriginal and treaty rights. I am authorized to speak for and on behalf of COTTFN and its members to express our concerns and to assert our rights in these matters.

OH-002-2013 - File OF—Fac-Oil-E101-2012-10 02 August 6, 2013

Affidavit of Joe Miskokomon, Chief of COTTFN Page 2 of 46

4. I understand that Enbridge Pipelines Inc. (“Enbridge”) has applied to the National Energy Board (“NEB”) for authorization to reverse a section of Line 9 between North Westover, Ontario and Montréal, Québec, expand the annual capacity of Line 9 from Sarnia, Ontario to Montréal from 240,000 bpd to 300,000 bpd, and allow heavy crude to be shipped on Line 9 (collectively, the “Project”).1

5. Enbridge has stated that the purpose of the Project is to respond to requests from eastern Canadian refineries to have access to growing and less expensive supplies of crude oil from western Canada and the Bakken region in the United States.2

6. Line 9 is located in our traditional territory and crosses the Thames River, a watershed that we and our ancestors have lived in and harvested resources from since time immemorial. COTTFN has Aboriginal and treaty rights in the Thames watershed, and we assert Aboriginal title over the bed of the Thames River and the resources contained therein. Our rights are recognized, affirmed, and protected by s. 35 of the Constitution Act, 1982.

7. Line 9 was built without the Crown having consulted with or accommodated COTTFN. The federal Crown and/or Enbridge are not sharing the revenues being generated by the shipment of oil through our traditional territory despite the fact that construction and operation of Line 9 is an ongoing infringement of our Aboriginal and treaty rights.

1 Application by Enbridge Pipelines Inc. filed with the National Energy Board for the Project (“Enbridge Application”), at p 18 of 54. 2 Ibid.

OH-002-2013 - File OF—Fac-Oil-E101-2012-10 02 August 6, 2013

Affidavit of Joe Miskokomon, Chief of COTTFN Page 3 of 46

8. I am swearing this affidavit in support of COTTFN’s assertion that the Project triggers the federal Crown’s duties to consult and accommodate COTTFN, to provide the NEB with our community’s perspective on how the Project may adversely impact our constitutionally protected rights, and to explain why COTTFN takes the position that we have not been adequately consulted and accommodated in respect of the Project.

9. For the reasons that I set out below, COTTFN is seriously concerned that the Project will cause new and further environmental effects and corresponding adverse impacts on our Aboriginal and treaty rights. In particular, we are concerned that a spill, leak or discharge from Line 9 into the Thames River will seriously impact our Aboriginal and treaty rights, including title.

Chippewas of the Thames First Nation’s Aboriginal and treaty rights

10. In the context of the Project, COTTFN asserts that we have:

(a) Aboriginal harvesting rights in our traditional territory to hunt, fish, trap, gather or collect any or all species or types of animals, plants, minerals and oil, for any purpose, including for food, social and ceremonial purposes, trade, exchange for money, or sale (including commercial sale);

(b) the right to access, preserve, and conserve sacred sites for traditional, social, and ceremonial purposes;

(c) Aboriginal title to the bed of the Thames River, as well as the airspace over the Thames River and other lands throughout our traditional territory;

(d) in the alternative to (c), an Aboriginal right to use the water and resources in the Thames River and the air space over the lands in our traditional territory; and

OH-002-2013 - File OF—Fac-Oil-E101-2012-10 02 August 6, 2013

Affidavit of Joe Miskokomon, Chief of COTTFN Page 4 of 46

(e) a solemnly negotiated treaty right promising COTTFN exclusive use and enjoyment of our reserve lands.

11. As a corollary of the rights we are asserting above, COTTFN claims that a part of any revenues generated by transporting oil through our traditional territory should be shared with COTTFN.

12. We are the descendents of a part of the Anishinaabe Nation in southwestern Ontario (sometimes collectively referred to as the Chippewa or Ojibwa peoples). Our ancestors occupied southwestern Ontario and the Great Lakes long before contact with Europeans occurred. Europeans migrated into and established communities in southwestern Ontario at the beginning of the 18th century. Our traditional territory, which was inhabited by our ancestors, is depicted in a map which is attached as Exhibit “A”.

13. Our ancestors led a distinctive lifestyle, hunting, fishing, trapping, gathering and collecting animals, plants, minerals, maple sugar, and oil in that traditional territory since time immemorial. They also grew corn and squash and performed ceremonies at sacred sites. These activities were integral features of their culture and continue to be integral features of our culture to this day.

14. By the early 1800s, our ancestors had established 4-6 territorial communities, each occupying distinct geographic areas that were associated with major watersheds and lakeshores. Two large communities occupied the shore of Lake St. Clair and the St. Clair River as well as the interior Thames River. The Chippewas of the Thames are descendents of the Thames River community. Another community, the Big Bear Creek Ojibwa, resided along the Sydenham River. Descendents of that community are now also part of COTTFN, and this is one of my own ancestral links to the present-day COTTFN community.

OH-002-2013 - File OF—Fac-Oil-E101-2012-10 02 August 6, 2013

Affidavit of Joe Miskokomon, Chief of COTTFN Page 5 of 46

15. Each Chippewa community had a home range or a defined area in which it would harvest resources. While fixed, permanent settlements (i.e. villages) did not exist, each community had several areas that it would seasonally occupy and central places that defined the heart or core of its territory or range. Each community had a sense of ownership over the resources in those areas. A research paper prepared by Professor Neal Ferris, the Lawson Chair of Canadian Archaeology, Department of Anthropology/Museum of Ontario Archaeology, University of Western Ontario which describes our ancestors’ way of life and seasonal harvesting cycles is attached as Exhibit “B”. A map of the traditional areas of Chippewa communities in southwestern Ontario in the 1800s is located on page 3 of Exhibit B.

16. Our ancestors survived off the land through an annual cycle consisting of several seasonal harvesting practices. Their harvesting activities exploited the full range of seasonally abundant resources in their territorial home ranges.

17. A critical element of our ancestors’ way of life was mobility and ongoing access to seasonally abundant resources throughout their territorial home ranges. Groups, families or individual Chippewas traveled between four to five settlement camps at different locales within each community’s home range over the course of a year. A schematic depicting our ancestors’ seasonal harvesting cycle is set out in Figure 2 on page 6 of Exhibit B, which I have reproduced below:

OH-002-2013 - File OF—Fac-Oil-E101-2012-10 02 August 6, 2013

Affidavit of Joe Miskokomon, Chief of COTTFN Page 6 of 46

18. Our ancestors continued their seasonal harvesting cycles throughout the 19th century following the arrival and settlement of Europeans. European goods assisted our ancestors in improving their traditional harvesting practices but did not displace them. Our ancestors did not abandon their sense of self or worldview that was intimately tied to their mobility and seasonal harvesting practices. At page 8 of his research paper, Professor Ferris concludes that:

…the Ojibwa were clearly conservative to change beyond innovative adaptation, reluctant to abandon an historically constructed sense of self that came from the seasonal scheduling of livelihood and daily life across their territorial “home range”, and not from fixed locales within it.

OH-002-2013 - File OF—Fac-Oil-E101-2012-10 02 August 6, 2013

Affidavit of Joe Miskokomon, Chief of COTTFN Page 7 of 46

19. Our ancestors’ seasonal harvesting cycles and the mobility required to access parts of our territory to harvest resources on a seasonal basis were an integral part of their way of life and worldview. At page 8 of his research paper, Professor Ferris concludes that:

For the Ojibwa, mobility and hunting were as much dimensions of self-identity as language and belief systems. Indeed, daily living was really identity experienced across and read into the landscape of mobility, and reinforced as distinct when compared with other, more settled Native and non-Native communities.

20. These practices, activities, and worldview continue to be integral to COTTFN’s distinctive culture today.

21. It is on the basis of our ancestors’ practices on and occupation of our traditional territory prior and subsequent to the arrival of Europeans that we assert Aboriginal rights to our traditional harvesting activities in our traditional territory, and Aboriginal title over parts of our traditional territory that were never ceded or surrendered to the Crown.

22. Beginning in 1818, the Chiefs of the Chippewa communities residing in southwestern Ontario entered into nation-to-nation negotiations with the British Crown. The spirit, intent, and very substance of the negotiations were to provide the Crown with much needed land for settlement and agricultural purposes while protecting our ancestors’ traditional way of life.

23. The Chippewa Chiefs of the day entered into an oral treaty with representatives of the British Crown in 1818. The terms of the oral treaty were set out (and later modified without consent) by representatives of the British Crown in written “provisional” treaties in 1819 (Treaty No. 21), in 1820 (Treaty No. 280½), and a final treaty in 1822 (Treaty No. 25). Attached to my affidavit as Exhibit “C”, “D”, “E”, and “F” respectively, are copies of notes taken of the oral treaty concluded in 1818, Treaty Nos. 21, 208½, and 25.

OH-002-2013 - File OF—Fac-Oil-E101-2012-10 02 August 6, 2013

Affidavit of Joe Miskokomon, Chief of COTTFN Page 8 of 46

24. The written text of Treaty No. 25 provides that our ancestors agreed to “surrender to His said late Majesty and His successors, without limitation, or reservation, all that parcel or tract of land lying on the northerly side of the River Thames, in the London and Western Districts of the Province aforesaid, containing about five hundred and eighty thousand acres, and hereinafter more particularly described”.

25. While there is no mention of reserves in the written text of Treaty No. 25, there is no dispute that the previous treaties reserved lands for each community and recognized our ancestors’ exclusive rights to those unceded lands. A portion of the lands reserved under the treaties make up COTTFN’s present-day reserve.

26. The Crown’s negotiation and execution of the Oral Treaty of 1818 and written Treaties Nos. 21, 208½, and 25, in which our ancestors agreed to a limited surrender of the lands under our control, confirms that the Crown recognized that our ancestors owned and controlled the lands north of the Thames River.

27. The text of Treaties Nos. 21, 208½, and 25 was written by representatives of the Crown having regard to European concepts of property law and ownership. These concepts would not have been known to or understood by our ancestors. Our ancestors would not, therefore, have understood, negotiated, agreed to or interpreted the Treaties having regard to European concepts of property, ownership, and exclusivity.

28. Our ancestors understood what was being negotiated and what they ultimately agreed to through the lenses of our worldview and our seasonal relationship with our lands, waters, and natural resources.

29. Professor Ferris concludes on page 9 that the Big Bear Creek Ojibwa would have understood the surrender of land and reserves created by the

OH-002-2013 - File OF—Fac-Oil-E101-2012-10 02 August 6, 2013

Affidavit of Joe Miskokomon, Chief of COTTFN Page 9 of 46 treaties to preserve our harvesting rights throughout our traditional territory rather than limiting harvesting activities to the four corners of our contemporary reserves:

…Beyond the stretch of river where warm weather settlements could be found, the community would also have assumed the area would have captured seasonally important camps (i.e., sugaring camps), and fixed locales on the landscape of cultural significance such as burial grounds. In addition, the general area would have been viewed as a place encompassing various “improvements” to raw land, in the form of seasonally important resources, including maple stands, orchards, winter deer yards, sources of berries, nuts and medicinal plants, and supplies for manufacturing crafts, such as ash, hickory and other trees and grasses important for making baskets, mats, brooms, axe handles etc. In other words, while the British Crown translated the notion of “reserve” into a bounded parcel of land, it is important to keep in mind that the “place” of the Bear Creek Ojibwa reserve would have been a cultural concept in the minds of the Ojibwa encompassing everything in their territorial community of economic and social value to the community, regardless of whether fitting inside a boxed in parcel of land…

…Moreover, it is also important to keep in mind this “reserve” was for a community that, by name, travel and subsistence, thought of itself as the Bear Creek Ojibwa. In other words, the acreage that is at question as a result of the British translation of Ojibwa concepts into a reserve measurement, is itself an artifact of colonial translation, and should not be assumed to have been conceptually understood in the same way by this Ojibwa community. Extensive historic references cited by both the Federal government and the Chippewas of the Thames documentation refer to extensive land improvements along the Sydenham River, including corn fields, camp sites with the structural supports for residential dwellings, sugar camps, burial grounds, orchards, etc. Springer’s survey notes from 1846 make extensive reference to these improvements, and note that they extend some 10 miles along the Sydenham River. Smith’s earlier survey records also reference encountering many such camps. These very visible improvements up and down the Sydenham River would have conceptually been as much a part of the Bear Creek settlement, both actively in use and recognised as the landscape heritage of the community, regardless of whether or not falling within a defined parcel of land based on the core settlement area along the river… [emphasis added]

OH-002-2013 - File OF—Fac-Oil-E101-2012-10 02 August 6, 2013

Affidavit of Joe Miskokomon, Chief of COTTFN Page 10 of 46

30. Our ancestors retained the right to harvest throughout our traditional territory and to control parts of our traditional territory (lakes, rivers, lakebeds, riverbeds, subsurface resources which lay under our lands below the depth of a plow, and the air space above our lands) despite having entered into treaties with the Crown. There was no discussion of ceding our harvesting rights or control and ownership over the above-noted parts of our traditional during the treaty-making process. Simply put the Chiefs of the day never agreed to surrender those rights.

31. Unlike other treaties which explicitly deal with ownership of waterlots, Treaties Nos. 21, 208½, and 25 only address ownership of land up to the “water’s edge of the River Thames”. This reflects the intent and understanding of our ancestors to only surrender land up to the water’s edge, leaving the land under water plainly unaffected by the Treaties and still subject to our control and ownership.

32. While our ancestors that executed the treaties were aware of the British Crown’s desire to use the surrendered land for settlement and agricultural purposes, our oral history confirms that their intention in executing the treaties with the Crown, and the spirit of the treaties, was to preserve and protect our way of life. This involved preserving our rights to continue our seasonal harvesting cycles and the necessary ongoing right to access and use our traditional territory as needed.

OH-002-2013 - File OF—Fac-Oil-E101-2012-10 02 August 6, 2013

Affidavit of Joe Miskokomon, Chief of COTTFN Page 11 of 46

33. The perspective of the treaty-making process I have outlined above is reflected in and confirmed by the negotiations leading up to the treaties and in the treaties themselves. In the negotiations leading to the treaties, there was no discussion of our ancestors ceding or surrendering our harvesting rights in our traditional territories or our title to parts of our traditional territory. Unlike the numbered treaties that the Crown executed with other Aboriginal groups, the Crown did not negotiate a right to take up our land in a way that would adversely impact or otherwise limit the geographic extent of our harvesting rights.

34. The terms of the Oral Treaty of 1818 set out in Exhibit C make clear that our ancestors intended to continue to harvest throughout our traditional territory. That is why they specifically bargained for and obtained the services of a blacksmith – who would have been charged with repairing their axes, guns and traps – near our reserve:

…but out of our yearly payments our Nation is to be furnished with a blacksmith and Husbandman to be stationed near the reserves, the former to mend our Axes and Traps and repair our Guns…

35. Today, COTTFN has a reserve and a permanent community. In that sense, our way of life has changed in large part due to development and settlement of southwestern Ontario by Europeans, which has made it impossible for us to sustain ourselves entirely by harvesting natural resources in our territory. However, we continue to exercise our harvesting rights in our traditional territory and to pass on these important traditions to our youth. We maintain a deep spiritual connection to the lands and waters in our territory, which remains our home and continues to define who we are.

OH-002-2013 - File OF—Fac-Oil-E101-2012-10 02 August 6, 2013

Affidavit of Joe Miskokomon, Chief of COTTFN Page 12 of 46

Use of lands and resources by COTTFN members that could be adversely impacted by spills, leaks, and discharges from Line 9

36. We engaged Eagle Sun Consulting to perform a “preliminary” traditional land use study (“TLUS”) to document and describe the use of lands and resources by AFN members in proximity of Line 9 or that otherwise may be affected by the Project, including by spills, leaks, and discharges from Line 9 during its operational phase. The TLUS is attached as Exhibit “G”.

37. I am informed by Eagle Sun Consulting that the TLUS is “preliminary” in the sense that it focuses on our use of lands and resources in proximity to the Line 9 right-of-way, and a smaller number of land and resource users were interviewed during the TLUS than would typically be interviewed in a full TLUS. Despite its “preliminary” nature, Eagle Sun states on pages 4-5 of the TLUS that the Study nevertheless provides “a robust preliminary description of the use of lands and resources by COTTFN members that can be used to understand how the Project and the operation of Line 9 following Project completion may adversely impact COTTFN’s traditional land and resource use practices”.

OH-002-2013 - File OF—Fac-Oil-E101-2012-10 02 August 6, 2013

Affidavit of Joe Miskokomon, Chief of COTTFN Page 13 of 46

38. The TLUS confirms in the following excerpt from the Executive Summary that COTTFN members continue to teach and follow a seasonal pattern of land and resource use similar to the Annual Round followed by our ancestors:

The data gathered and presented in this report indisputably establishes that, despite a considerable degree of intimidation by Crown agents and other interference caused by the imposition of colonial policies, COTTFN members continue to teach and carry out the same practices that comprise the annual rounds that their ancestors did historically throughout the same traditional territory identified by both the historical literature and the COTTFN peoples’ oral history. While many of these practices are now most often carried out directly on or near the lands that comprise the COTTFN reserve, a number of interviewees identified specific sites and hunting grounds throughout the Thames River watershed where they continue to harvest a variety of species of fish, birds, and mammals and gather medicine, maple sap, and other flora, including at sites that are directly adjacent to the Line 9 right-of- way. In addition to providing sustenance, these practices and the land and water bodies they are carried out on have deep spiritual significance to the interviewees.

39. In particular, the TLUS documents that COTTFN members harvest a variety of locally and seasonally abundant resources, including several species of fish, deer, muskrats, raccoons, skunks, rabbits, squirrels, birds, medicinal plants, berries, fruits, nuts, and vegetables in the locations shown on the following figure which I have reproduced from the TLUS:

OH-002-2013 - File OF—Fac-Oil-E101-2012-10 02 August 6, 2013

Affidavit of Joe Miskokomon, Chief of COTTFN Page 14 of 46

OH-002-2013 - File OF—Fac-Oil-E101-2012-10 02 August 6, 2013

Affidavit of Joe Miskokomon, Chief of COTTFN Page 15 of 46

40. The following is an excerpt from the Executive Summary of the TLUS, where Eagle Sun concludes that many of the locations where COTTFN members use lands and resources are found in the Thames River watershed, including in close proximity to where the Line 9 right-of-way crosses the Thames River:

Many of the practices identified by the interviewees center on the Thames River and the associated watershed, and in some cases the species associated with a practice are dependent on it. For example, fishing occurs in and around the area just east of Bryanston Pump Station where Line 9 crosses the Thames River, and in the case of birds and deer, their migratory patterns overlap parts of the Line 9 right-of-way, including the Bryanston crossing, and therefore the interviewees’ corresponding hunting grounds encompass the Bryanston crossing and other parts of the Line 9 right-of-way.

Enbridge’s Line 9 is infringing our Aboriginal and treaty rights

41. Enbridge’s Line 9 is located in our traditional territory. It was built in 1975 and put into service in 1976 without the Crown having consulted and accommodated COTTFN. The construction and operation of Line 9 constitutes an unauthorized taking up of our traditional territory by the federal Crown. Adverse impacts on our Aboriginal and treaty rights caused by this unauthorized taking up include ongoing infringements of our Aboriginal title and harvesting rights as well as depriving us of meaningfully sharing in the wealth created by the commercial development of our traditional territory.

42. The federal Crown and/or Enbridge are not sharing the revenues being generated by the transportation of oil through our traditional territory with COTTFN despite the fact that the construction and operation of the Line 9 constitutes an ongoing infringement of our Aboriginal and treaty rights.

OH-002-2013 - File OF—Fac-Oil-E101-2012-10 02 August 6, 2013

Affidavit of Joe Miskokomon, Chief of COTTFN Page 16 of 46

The federal Crown owes COTTFN constitutional consultation and accommodation duties in respect of the Project

43. In the Line 9 Reversal Phase I Project (Hearing Order OH-005- 2011) which involved an application to reverse the flow of Line 9 between Sarnia Terminal and North Westover (“Line 9A”), Enbridge submitted that:

(a) the anticipated average daily volume of crude oil shipped on Line 9A between 2012 and 2020 would be 50,000 bpd;

(b) the target annual capacity on Line 9A was 152,000 bpd;

(d) it only planned to ship products classified as light crude oils following reversal of flow on Line 9A, including Light Sour Blend, Edmonton High Sour, Edmonton Low Sour and Mixed Blend Sour.3

44. If the NEB approves the Project, Enbridge will be able to ship a larger volume of crude (up to an average daily volume of 300,000 bpd) and heavy crude on parts of Line 9A in COTTFN’s traditional territory.

45. Information submitted by Enbridge in its application, which indicates that the total supply of heavy crude oil from western Canada will increase by 1,837,000 bpd between 2012 and 2020,4 strongly suggests that heavy crude will represent an increasingly larger portion of the commodities shipped on Line 9 in the future.

3 National Energy Board Letter of Decision, Enbridge Pipelines Inc. Line 9 Reversal Phase I Project, File OF-Fac-Oil-E101-2011-01 01, at pp 3, 14 of 28. 4 Enbridge Application, at p 50 of 54.

OH-002-2013 - File OF—Fac-Oil-E101-2012-10 02 August 6, 2013

Affidavit of Joe Miskokomon, Chief of COTTFN Page 17 of 46

46. Line 9 is an old pipeline that was built using out-of-date technology. It was constructed in 1975 according to construction specifications and requirements of the day, and placed into service in 1976.5 The pipeline’s main protection against external corrosion is a single layer of polyethylene tape and, according to Enbridge’s own submissions in the Line 9 Phase I Hearing, it has been well-documented that other polyethylene tape-coated pipelines within the industry have exhibited moderate to high susceptibility to stress corrosion cracking.

47. We are concerned that increased rates of corrosion as a result of the combined effects of the age and design of Line 9 as well as shipping larger volumes of more corrosive commodities will likely increase the frequency and size of spills, leaks, and discharges from the pipeline following implementation of the Project. Larger and more frequent spills, leaks, and discharges may result in larger and more serious health, environmental, and socio-economic effects and corresponding adverse impacts on our Aboriginal and treaty rights.

48. Our concerns are based on and remain unaddressed for the following reasons:

(A) there is an inherent risk of spills, leaks, and discharges with any pipeline;

(B) the Project will increase the frequency of spills, leaks, and discharges occurring on Line 9;

(D) spills, leaks, and discharges of heavy crude and diluted bitumen are more serious than spills of other types of crude;

5 Attachment 4(f) to Enbridge Application, page 2 of 62.

OH-002-2013 - File OF—Fac-Oil-E101-2012-10 02 August 6, 2013

Affidavit of Joe Miskokomon, Chief of COTTFN Page 18 of 46

(E) spills, leaks, and discharges of heavy crude and diluted bitumen are more difficult to clean up; and

(F) shipping diluted bitumen will cause leaks to be more difficult to detect on Line 9.

(A) There is an Inherent Risk of Spills, Leaks, and Discharges with Any Pipeline

49. According to a report entitled Out on the Tar Sands Mainline: Mapping Enbridge’s Web of Pipelines by Richard Girard of the Polaris Institute, Enbridge’s own reporting indicates that:

(a) 25.67 million litres of hydrocarbons were released into the environment by the 804 spills and leaks that occurred on Enbridge’s pipelines between 1999 and 2010;

(b) 40,270 barrels of crude oil (approximately 6.4 million litres) were spilled into the environment, 2 fatalities and approximately $619,099,667 in property damage were caused by the 115 incidents on Enbridge’s U.S. pipelines between approximately 2006 and 2010; and

(c) 23,900 barrels of oil (approximately 3.8 million litres) were released from an Enbridge pipeline in Hardisty, Alberta on January 17, 2001.

The Polaris Report is attached as Exhibit “H”.

50. I have reproduced pages 54-56 from the Polaris Report which set out some of the statistics described in the previous paragraph:

OH-002-2013 - File OF—Fac-Oil-E101-2012-10 02 August 6, 2013

Affidavit of Joe Miskokomon, Chief of COTTFN Page 19 of 46

OH-002-2013 - File OF—Fac-Oil-E101-2012-10 02 August 6, 2013

Affidavit of Joe Miskokomon, Chief of COTTFN Page 20 of 46

OH-002-2013 - File OF—Fac-Oil-E101-2012-10 02 August 6, 2013

Affidavit of Joe Miskokomon, Chief of COTTFN Page 21 of 46

OH-002-2013 - File OF—Fac-Oil-E101-2012-10 02 August 6, 2013

Affidavit of Joe Miskokomon, Chief of COTTFN Page 22 of 46

51. One of the largest spills in Enbridge’s history occurred in Saskatchewan in 2007. Information on this spill is contained in the National Transportation and Safety Board’s (“NTSB”) Pipeline Accident Report of the Kalamazoo River spill, which is attached as Exhibit “I”. That spill released almost 200,000 gallons (approximately 757,000 litres) of crude oil resulting from a pipeline rupture caused by cracking due to corrosion.6

52. A NEB report entitled Focus on Safety and Environment: A Comparative Analysis of Pipeline Performance 2000 – 2009 found that an average of 40 operational leaks are reported to the NEB every year from federally-regulated pipelines, and in 2009 there were 51 reported operational leaks. In 2009, there were two liquid pipebody releases which discharged 1,243,000 litres of liquid hydrocarbon products.7 The NEB’s report is attached as Exhibit “J”.

53. The NEB’s website contains information about pipeline incidents from 2010-2012. Table 1 and Figure 1 show the number of incidents reported to the NEB. The total numbers of pipeline incidents reported during this time were 106, 102, and 38 respectively for 2010, 2011, and 2012. A printout of the NEB’s website containing this information is attached as Exhibit “K”.

54. A NEB report entitled Analysis of Ruptures and Trends on Major Canadian Pipeline Systems by Dr. Franci Jeglic, which examines rupture trends over five, ten, and twenty year periods, concludes on page 1 that pipeline ruptures which occurred over the last five years were internally inspected and that in-line inspection tools could not properly detect the defects that caused ruptures on those pipelines:

6 National Transportation Safety Board, “Enbridge Incorporated Hazardous Liquid Pipeline Rupture and Release, Marshall Michigan, July 25, 2010: Accident Report”, NTSB/PAR-12-01, PB2012-96510, adopted July 10, 2012 at p 22. 7 National Energy Board, “Focus on Safety and Environment: A Comparative Analysis of Pipeline Performance, 2000-2009” (December 2011) at p 4.

OH-002-2013 - File OF—Fac-Oil-E101-2012-10 02 August 6, 2013

Affidavit of Joe Miskokomon, Chief of COTTFN Page 23 of 46

There were forty-six ruptures over the twenty-year period, twenty- three over the ten-year period, and seven over the five-year period ... The dominant rupture causes are external corrosion, stress corrosion cracking, and third party damage in this order of magnitude. The pipelines that ruptured during the last five years were internally inspected. The in-line inspection tools could not properly detect the defects that caused the ruptures.8

Dr. Jeglic’s report is attached as Exhibit “L”.

55. Table 3 of a peer-reviewed article written by Tim Van Hinte and others entitled Evaluation of the Assessment Process for Major Projects: A Case Study of Oil and Gas Pipelines in Canada and published in Impact Assessment and Project Appraisal contains the spill rates for NEB regulated pipelines from 1992 – 2003. The data provided in this table indicate that oil spills on NEB regulated pipelines greater than 119,240 litres occurred 0.6 times per year from 1992 – 2003. The article is attached as Exhibit “M”.

56. A Library of Parliament Report from the Industry, Infrastructure and Resource Division entitled Pipelines: Environmental Considerations concluded on page 4 that smaller discharges in the form of leaks are far more frequent than ruptures, although ruptures are still a regular occurrence:

“Pipeline ruptures are not uncommon. In North America, two recent ruptures, one in July 2010 in the Kalamazoo River near Marshall, Michigan, and another north of Peace River, Alberta in April 2011, released over 3,000 cubic metres (m³) and 4,000m³ respectively of heavy crude. According to Canada’s National Energy Board, over 30 federally regulated pipelines ruptured between 1992 and 2011, three of which released over 3,000m³ of oil.”9

8 Dr. Frank Jeglic, “Analysis of Ruptures and Trends on Major Canadian Pipeline Systems”, prepared for the National Energy Board (2004) at p 1 [emphasis added]. 9 Tim Williams, “Pipelines: Environmental Considerations”, Library of Parliament Publication No 2012-37-E (5 July 2012) at p 4.

OH-002-2013 - File OF—Fac-Oil-E101-2012-10 02 August 6, 2013

Affidavit of Joe Miskokomon, Chief of COTTFN Page 24 of 46

“Smaller releases ... can also have an impact and are far more frequent than ruptures. Of the 4,769 releases of hydrocarbon liquids between 1990 and 2005 outlined in the Alberta EUB report, six involved releases of between 1,000 and 10,000m³, yet there were 4,171 with less than 100m³.”10

This Report is attached as Exhibit “N”.

(B) The Project Will Increase the Frequency of Spills, Leaks, and Discharges Occurring on Line 9

57. If the Project is approved, Line 9 will have the capacity to ship a much larger volume of oil, including heavy crude. We are extremely concerned that shipping large quantities of heavy crude, including “dilbit” or “diluted bitumen”, will increase spill frequency because it is more corrosive than light crude oil and will therefore increase the internal corrosion rates of Line 9.

58. An article written by Dr. Thomas Gunton and Sean Broadbent entitled A Spill Risk Assessment of the Enbridge Northern Gateway Project discusses the deficiencies in Enbridge’s assessment of spill risks along the Northern Gateway Pipeline. In particular, the article addresses the corrosive potential of dilbit, opining that Enbridge failed to consider its heightened corrosivity when analyzing the risk of pipeline spills:

10 Ibid at p 4.

OH-002-2013 - File OF—Fac-Oil-E101-2012-10 02 August 6, 2013

Affidavit of Joe Miskokomon, Chief of COTTFN Page 25 of 46

Evidence suggests that sulphur concentrations in dilbit may increase the corrosiveness of metals used for ... pipeline operations. Higher sulphur concentrations can present a corrosive threat to the integrity of metals (Lyons and Plisga 2005) including metals used for pipelines, storage tanks, and cargo holds... Higher internal corrosion rates associated with the transportation of dilbit are evident in the comparison of corrosion incidents between Alberta and US pipeline systems. Between 1990 and 2005, internal corrosion accounted for nearly a quarter (24.8%) of crude oil pipeline incidents in Alberta (AEUB 2007). In comparison, internal corrosion incidents for crude oil pipelines in the US represented less than one-sixth (13.7%) of all pipeline incidents between 1986 and 2009 (US PHMSA 2012).11

Dr. Gunton’s report is attached at Exhibit “O”.

59. We are similarly concerned that Enbridge has failed to adequately consider and assess the higher internal corrosion rates that will occur when dilbit is shipped on Line 9, and in any event Enbridge cannot yet meaningfully do so because they have admitted that they do not know what combination of light, medium, and heavy crude will ultimately be shipped on Line 9.12

60. A report written by Anthony Swift and others entitled Pipeline and Tanker Trouble: The Impact to British Columbia’s Communities, Rivers, and Pacific Coastline from Tar Sands Oil Transport concludes that shipment of Alberta bitumen on pipelines increases the risk of corrosion:

“Compared with conventional crude, bitumen blends are more acidic, thicker, and more sulphuric. Diluted bitumen contains organic acid concentrations 15 to 20 times higher than conventional crudes, and contains 5 to 10 times more sulphur than conventional crudes.”13

11 Dr Thomas Gunton & Sean Broadbent, “A Spill Risk Assessment of the Northern Gateway Project”, School of Resource and Environmental Management, Simon Fraser University (April 2013) at p 35 (emphasis added). 12 NEB IR 1.6. 13 Anthony Swift et al, “Pipeline and Tanker Trouble: The Impact to British Columbia’s Communities, Rivers, and Pacific Coastline from Tar Sands Oil Transport”, Natural Resources Defense Council & the Pembina Foundation (2011) at p 6.

OH-002-2013 - File OF—Fac-Oil-E101-2012-10 02 August 6, 2013

Affidavit of Joe Miskokomon, Chief of COTTFN Page 26 of 46

“As thick diluted bitumen moves through pipelines, it creates significant friction, which heats the mixture to very high temperatures and promotes corrosion. The high temperatures thin the diluted bitumen and increase its speed through the pipeline. As a result, the speed at which acids and other chemicals corrode the pipeline increases as the temperature increases ... The risks of corrosion are augmented by the abrasive nature of diluted bitumen, which contains significantly higher quantities of sediments such as quartz and pyrite sand particles. These sediments increase the amount of erosion within the pipeline, making diluted bitumen a sort of liquid sandpaper ...”14

The report links an 800,000 litre leak on Alaska’s North Slope to the sediments from bitumen settling in the pipeline and causing internal corrosion.15

Mr. Swift’s report is attached as Exhibit “P”.

61. Tar Sands Pipelines Safety Risks, attached as Exhibit “Q”, found that dilbit has a higher risk of explosion or ignition than conventional crude:

...the low flashpoint and high vapour pressure of the natural gas condensate used to dilute the DilBit increase the risk of heated material exploding. DilBit can form an ignitable and explosive mixture in the air at temperatures above 0 degrees Fahrenheit. This mixture can be ignited by heat, spark, static charge, or flame.16

14 Ibid at p 6. 15 Ibid at p 6. 16 Anthony Swift et al “Tar Sands Pipeline Safety Risks”, Natural Resources Defence Council et al (2011) at p 7.

OH-002-2013 - File OF—Fac-Oil-E101-2012-10 02 August 6, 2013

Affidavit of Joe Miskokomon, Chief of COTTFN Page 27 of 46

62. Enbridge is also proposing to ship crude oil from the Bakken region on Line 9 as part of the Project. We are concerned that high levels of hydrogen sulfide in crude oil from the Bakken region will increase the risk of explosions on Line 9. Enbridge has itself expressed concerns about the dangers associated with shipping crude oil from the Bakken region to the US Federal Regulatory Commission and has taken actions to reserve its right to reject crude with high hydrogen sulfide content. Attached as Exhibit “R” is an Order from the US Federal Energy Regulatory Commission accepting Enbridge’s filing to reserve its right to reject crude that does not contain a hydrogen sulfide content of 5 parts per million (5ppm) or less due to the danger of transporting crude with a higher hydrogen sulfide level.17

63. The seriousness of the impacts a spill, leak, or discharge would have on the species we traditionally harvest are well documented.

64. A report published by the Harvard Medical School Centre for Health and the Global Environment by Santiago Borasin and others entitled Oil: A Life Cycle Analysis of its Health and Environmental Impacts highlights some of the following environmental impacts caused by oil spills:

“A large spill can do extensive damage to large areas of ocean (or land), smothering the small microorganisms that comprise the bottom of the food chain ... it is important to note that because of the effects of oil spills on vegetation, water and fish, the impacts of even small spills can send ripple effects into surrounding ecosystems and affect communities beyond the immediate spill area.”18

17 United States Federal Energy Regulatory Commission, “Order Accepting Tariff Filing”, 143 FERC ¶61,221 (June 6 2012) at p 3. 18 Santiago Borasin et al, “Oil: A Life Cycle Analysis of its Health and Environmental Impacts”, ed. Paul R. Epstein & Jesse Selber, Centre for Health and the Global Environment, Harvard Medical School (March 2002) at p 22.

OH-002-2013 - File OF—Fac-Oil-E101-2012-10 02 August 6, 2013

Affidavit of Joe Miskokomon, Chief of COTTFN Page 28 of 46

“Oil can cause widespread mortality in fish populations, with cascading impacts for other species – especially birds, marine mammals and human populations – that depend highly on fish for subsistence.”19

“Oil spills that occur on land, primarily from pipeline leaks and accidents, can contaminate surrounding soils and groundwater. A large oil spill can make contaminated land uncultivatable ...”20

The Harvard Report is attached as Exhibit “S”.

65. A report by ENSR Corporation, prepared for the TransCanada Keystone Pipeline, entitled Pipeline Risk Assessment and Environmental Consequence Analysis outlines the following potential direct and indirect environmental impacts of pipeline spills on wildlife:

“Spilled crude oil can affect organisms directly and indirectly. Direct effects include physical processes, such as oiling of feathers and fur, and toxicological effects, which can cause sickness or death. Indirect effects are less conspicuous and include habitat impacts, nutrient cycling disruptions, and alterations in ecosystem relationships.”21

“Crude oil released into the environment may cause adverse biological effects on birds and mammals via inhalation or ingestion exposure. Ingestion of crude oil may occur when animals consume oil-contaminated food, drink oil-contaminated water, or orally consume crude oil during preening and grooming behaviours. Potential adverse effects could result from direct acute exposure. Acute toxic effects include drying of the skin, irritation of the mucous membranes, diarrhea, narcotic effects, and possible death ... Indirect environmental effects of spills can include a reduction of suitable habitat or food supply.”22

The ENSR report is attached as Exhibit “T”.

19 Ibid at p 23. 20 Ibid at p 23. 21 ENSR Corporation, “Pipeline Risk Assessment and Consequence Analysis”, prepared for TransCanada Keystone Pipeline, LP (June 2006) at p 4-11. 22 Ibid at pp 4-14 – 4-15.

OH-002-2013 - File OF—Fac-Oil-E101-2012-10 02 August 6, 2013

Affidavit of Joe Miskokomon, Chief of COTTFN Page 29 of 46

66. The potential chemical and toxicological impacts of oil spills are described in the following passage from the Draft Supplemental Environmental Impact Statement submitted for TransCanada Pipeline’s Keystone XL project:

Impacts may include: various toxic effects to animals and birds as they try to remove the oil from their fur or feathers; direct and acute mortality; sub-acute interference with feeding or reproductive capacity; disorientation/confusion; reduced resistance to disease; tumors; reduction or loss of various sensory perceptions; interference with metabolic, biochemical, and genetic processes; and many other acute or chronic effects.23

An excerpt of the Draft Supplemental Environmental Impact Statement is attached as Exhibit “U”.

67. The concerns we have regarding the serious effects that a spill, leak, or discharge from Line 9 would have on our culture and on our ability to exercise our Aboriginal and treaty rights is buttressed by the effects that other oil spills have caused other indigenous peoples.

68. For example, the adverse impacts of the Exxon Valdez Oil Spill on the use of lands and resources by indigenous peoples in Alaska are documented in a peer-reviewed article by Rita A. Miraglia entitled The Cultural and Behavioral Impact of the Exxon Valdez Oil Spill on the Native Peoples of Prince William Sound, Alaska published in Spill Science & Technology Bulletin, which is attached as Exhibit “V”. Ms. Miraglia concludes in the article that:

23 TransCanada Keystone XL, “Draft Supplemental Environmental Impact Statement”, (excerpt) (March 2003) at pp 4.13-24 – 4.13-25.

OH-002-2013 - File OF—Fac-Oil-E101-2012-10 02 August 6, 2013

Affidavit of Joe Miskokomon, Chief of COTTFN Page 30 of 46

Prior to the oil spill, people relied on their observations and experience to tell them if an animal was safe to eat or not. If an animal appeared diseased or abnormal in some way, it was not used for food. Immediately following the oil spill, subsistence users were concerned about the safety of all resources. This included terrestrial animals, such as bears and deer, which are known to forage for food in the intertidal areas. Some residents reported that berries growing in upland areas were affected by the fumes rising from the oil in the water and on the beaches. In subsequent years, subsistence users reported the scarcity of numerous species including marine mammals, marine invertebrates and some waterfowl species.24

(D) Spills, Leaks, and Discharges of Heavy Crude and Diluted Bitumen Are More Serious than Spills of Other Types of Crude

69. In Exhibit P, Pipeline and Tanker Trouble: The Impact to British Columbia’s Communities, Rivers, and Pacific Coastline from Tar Sands Oil Transport, Mr. Swift concludes that dilbit spills pose serious threats to human health and other organisms:

A diluted bitumen spill could also threaten human health as it contains toxins such as benzene, polycyclic aromatic hydrocarbons, and n-hexane, which can affect the human nervous system ... In addition to short-term effects, exposure to benzene and polycyclic aromatic hydrocarbons has been known to cause long term effects, such as cancer. Finally, diluted bitumen releases toxins that can accumulate in the environment and food chain (such as nickel, arsenic, and other heavy metals that do not biodegrade). These chemicals can become persistent health hazards to wildlife and people.25

24 Rita A. Miraglia, “The Cultural and Behavorial Impact of the Exxon Valdez Spill on the Native Peoples of Prince William Sound, Alaska”, Spill Science and Technology Bulletin, 17:1-2 (2002) at p 77. 25 Anthony Swift et al, “Pipeline and Tanker Trouble” supra note 13 at p 7.

OH-002-2013 - File OF—Fac-Oil-E101-2012-10 02 August 6, 2013

Affidavit of Joe Miskokomon, Chief of COTTFN Page 31 of 46

70. A summary of seven of the toxic chemicals found in dilbit from Northern Alberta spilled during the March 29, 2013 ExxonMobil pipeline rupture in Arkansas and their health effects is set out in a table on page 4 of the Environmental Working Group report entitled Poisons in the Pipeline: Tests Find Toxic Stew in Oil Spill, which I have reproduced below:

OH-002-2013 - File OF—Fac-Oil-E101-2012-10 02 August 6, 2013

Affidavit of Joe Miskokomon, Chief of COTTFN Page 32 of 46

OH-002-2013 - File OF—Fac-Oil-E101-2012-10 02 August 6, 2013

Affidavit of Joe Miskokomon, Chief of COTTFN Page 33 of 46

The Environmental Working Group report is attached as Exhibit “W”.

(E) Spills, Leaks, and Discharges of Heavy Crude and Diluted Bitumen are More Difficult to Clean Up

71. We are also concerned that a spill, leak, or discharge of the dilbit Enbridge plans to ship on Line 9 risks causing new and severe impacts on our Aboriginal and treaty rights, human health, and the environment that would be even more difficult to clean up than a spill of other types of crude oil not previously shipped on Line 9. In Exhibit “P”, Mr. Swift explains this increase in risk in the following way:

...the majority of diluted bitumen is composed of raw bitumen, which is heavier than water. After a release, some of the diluted bitumen will sink into the water column and wetland sediments as the light diluents evaporate. If this happens, the cleanup of a diluted bitumen spill may require significantly more dredging than a conventional oil spill. Diluted bitumen exposed to sunlight tends to form a dense, sticky substance that is difficult to remove from rock and sediments. Removing this tarry mess from river sediment and shores requires more aggressive cleanup operations than are needed for conventional oil spills. All of the aforementioned factors increase both the economic and environmental costs of diluted bitumen spills.26

72. Exhibit Q, Tar Sands Pipeline Safety Risks, contains a table on page 6 titled “Diluted Bitumen’s Characteristics” which provides a comparison of diluted bitumen to conventional crudes. It also provides the following information regarding the difficulties associated with a cleanup effort in the event of a dilbit spill using the case study of the Enbridge Kalamazoo River spill:

26 Anthony Swift et al, “Pipeline and Tanker Trouble”, supra note 13 at p 7.

OH-002-2013 - File OF—Fac-Oil-E101-2012-10 02 August 6, 2013

Affidavit of Joe Miskokomon, Chief of COTTFN Page 34 of 46

The containment and cleanup of a DilBit spill requires significant personnel, equipment, supplies, and other resources. The Kalamazoo River spill required more than 2000 personnel, over 150,000 feet of boom, 175 heavy spill response trucks, 43 boats, and 48 oil skimmers.27

73. The update on the cleanup efforts on the Kalamazoo River set out in the U.S. Environmental Protection Agency (“EPA”) publication entitled Oil Cleanup Continues on Kalamazoo River, attached as Exhibit “X”, highlights that dilbit spills cause significant adverse environmental effects which linger and may never be fully or adequately addressed or cleaned up:

EPA estimates about 180,000 gallons of Line 6B oil (plus or minus 100,000 gallons) remain in the river bottom sediment. EPA has ordered Enbridge to remove the recoverable oil (about 12,000 – 18,000 gallons) by dredging. The 162,000 – 168,000 gallons of oil that will remain in the river after this dredging work is complete will not be able to be recovered without significant adverse impacts to the river. Instead, it will be carefully monitored and collected over time using traps that gather contaminated sediment. Future oil recovery will depend on whether the crude eventually moves to areas with these sediment traps.28

27 Anthony Swift et al, “Tar Sands Pipelines Safety Risks”, supra note 16 at p 8. 28 EPA, “Oil Cleanup Continues on Kalamazoo River” (June 2013) at p 2 [emphasis added].

OH-002-2013 - File OF—Fac-Oil-E101-2012-10 02 August 6, 2013

Affidavit of Joe Miskokomon, Chief of COTTFN Page 35 of 46

(F) Shipping Diluted Bitumen Will Cause Leaks to be More Difficult to Detect on Line 9

74. It is my understanding that leaks in pipelines can be very difficult to detect to begin with, and we are concerned that shipping bitumen on a pipeline will exacerbate this issue. According to Exhibit I, which is the Pipeline Accident Report published by the NTSB, misdiagnoses contributed to the massive spill from an Enbridge Pipeline into the Kalamazoo River in Michigan in 2010. The NTSB concludes in Pipeline Accident Report that Enbridge pipeline operators assumed that the pipeline was experiencing column separation when the rupture generated multiple alarms. After the rupture, Enbridge employees caused 683,436 gallons of oil (amounting to 81% of the entire release) to be pumped through the ruptured pipeline “without seeing an increase in the pressure”.29 The EPA found moderate-to-heavy contamination of over 200 acres of the bottom of the Kalamazoo River.30 The Pipeline Assessment Report concludes that the pipeline rupture caused several significant negative environmental and health effects on the surrounding community:

“The Calhoun County Public Health Department issued a voluntary evacuation notice to about 50 houses. The health department developed residential evacuation recommendations based on the concentration of benzene in the air. Benzene is a toxic constituent of crude oil that can cause drowsiness, dizziness, and unconsciousness. Long-term exposure to benzene causes effects on bone marrow and can cause anemia and leukemia.”31

“Between July 27 and 29, the levels of benzene and petroleum hydrocarbons were sufficient to require respiratory protection for the cleanup workers.”32

29 NTSB, supra note 1 at pp 1-2. 30 Ibid at p 62. 31 Ibid at p 18. 32 Ibid at p 62.

OH-002-2013 - File OF—Fac-Oil-E101-2012-10 02 August 6, 2013

Affidavit of Joe Miskokomon, Chief of COTTFN Page 36 of 46

“On July 29, the Calhoun County Health Department and the Kalamazoo County Health and Community Services Department issued an advisory to residents with private wells within 200 feet of the Kalamazoo River and Talmadge Creek to stop using the water for drinking and cooking.”33

“On August 1 and 3, 2010, respectively, the Kalamazoo and Calhoun County health departments prohibited the use of these surface waters for irrigation and the watering of livestock. Calhoun County’s ban also applied to recreational activities, including boating, swimming, fishing, and agricultural use of surface waters. The Michigan Department of Community Health advised members of the public not to consume fish from either the Talmadge Creek or the Kalamazoo River to the west end of Morrow Lake.”34

75. Mr. Swift and others conclude in Exhibit P, Pipeline and Tanker Trouble: The Impact to British Columbia’s Communities, Rivers, and Pacific Coastline from Tar Sands Oil Transport, that dilbit leaks are more difficult to detect than in conventional oil pipelines:

Detecting leaks in diluted bitumen pipelines presents even greater challenges than in conventional oil pipelines. The operating parameters in bitumen pipelines vary much more than that of conventional oil systems, generating more ‘noise.’ As diluted bitumen flows through a pipeline, pressure changes within can result in the formation of gas bubbles that can impede the flow of oil and send faulty signals to the detection system. Because of this phenomenon – known as column separation – real leaks may go unnoticed if operators assume that leaks are just gas bubbles. In fact, because the typical response to column separation is to pump more oil through the pipeline, misdiagnoses can result in an even bigger leak.35

33 Ibid at p 62. 34 Ibid at p 63. 35 Anthony Swift et al, “Pipeline and Tanker Trouble”, supra note 13 at p 10.

OH-002-2013 - File OF—Fac-Oil-E101-2012-10 02 August 6, 2013

Affidavit of Joe Miskokomon, Chief of COTTFN Page 37 of 46

76. The report entitled Analysis of Frequency, Magnitude and Consequences of Worst-Case Spills from the Proposed Keystone XL Pipeline by John Stanbury concludes that small, underground leaks from pipelines transporting dilbit can go undetected for relatively long periods of time causing large amounts of dilbit and benzene to be released into the environment, including groundwater:

... if a small, underground leak remains undetected for an extended period of time, a large amount of benzene will be released with the dilbit. The released benzene could then be transported to groundwater via infiltrating rainwater. According to a TransCanada publication “Frequency-Volume Study of Keystone Pipeline” (DNV, 2006), a leak of 1.5 percent of total flow could remain undetected for 90 days. For this analysis, the discovery and shut down time is assumed to be 14 days which corresponds to the time between pipeline inspections. At the design flow rate of 900,000 Bbl/d, a 1.5 percent leak would release 189,000 bpl (7.9 million gallons) of DilBit in 14 days. Since DilBit is 0.1 to 1.0 percent benzene, this would result in a release of up to 79,380 gallons of benzene.36

Mr. Stanbury’s article is attached as Exhibit “Y”.

Operating Line 9 after the construction phase of the Project has been completed could adversely impact our Aboriginal and treaty rights

77. Parts of Line 9 between Sarnia Terminal and North Westover Station are located in COTTFN’s traditional territory and cross the Thames River, a watershed that we have lived in and harvested resources from since time immemorial.

36 John Stansbury, “Analysis of Frequency, Magnitude and Consequences of Worst-Case Spills from the Proposed Keystone XL Pipeline”, University of Nebraska at p 17.

OH-002-2013 - File OF—Fac-Oil-E101-2012-10 02 August 6, 2013

Affidavit of Joe Miskokomon, Chief of COTTFN Page 38 of 46

78. The concerns that I described above establish that spills, leaks, and discharges from Line 9 in the operational phase of the Project have the potential to cause new adverse impacts on our use of land and resources for traditional purposes, which are protected by our Aboriginal and treaty rights, cause direct health impacts to COTTFN members, and destroy or severely and irreparably damage our traditional territory.

79. Larger and more frequent spills, leaks, and discharges of more toxic substances from Line 9 will contaminate the soil, water, and air in our traditional territory, including the Thames River, as well as harm individual organisms and entire populations of species harvested by COTTFN members, which are important parts of our cultural, spiritual, and religious practices.

80. Harming or killing individual organisms and entire species of organisms will impair our ability to harvest those species in our traditional territory. Such impacts will directly infringe our Aboriginal harvesting rights and cause intergenerational impacts on our culture and way of life by decreasing our ability to educate and pass on our traditional knowledge and harvesting methods to our children.

OH-002-2013 - File OF—Fac-Oil-E101-2012-10 02 August 6, 2013

Affidavit of Joe Miskokomon, Chief of COTTFN Page 39 of 46

81. Our concerns have been confirmed by the conclusions that Eagle Sun reaches in the TLUS. Eagle Sun concludes in the Executive Summary of the TLUS that spills, leaks, and discharges from Line 9 carry “a serious risk of severely impairing the current exercise of rights and traditional practices associated with” our traditional territory as well as our ability to achieve our future traditional land use goals:

The environmental effects of spills, leaks, and discharges of crude oil have been well documented. Given the findings set out in this Study, it is my professional opinion that a release of crude oil from Line 9 in this area would directly impact the lands and waters historically used by COTTFN and would, therefore, carry with it a serious risk of severely impairing the current exercise of rights and traditional practices associated with those lands and waters.

Given that COTTFN is actively engaged in the process of selecting lands which may be partially based upon the criteria of re- establishing historical uses and re-enforcing current uses of lands and resources, such an event would also seriously impair COTTFN’s ability to achieve its future traditional land use goals.

82. All of these impacts will be new, additional impacts because Line 9 would be taken offline or decommissioned without the direction of flow being reversed.

83. Line 9A would have been taken offline or decommissioned without the direction of flow being reversed. We understand, based on Attachment 1 of Enbridge’s response to MOE IR No. 1.1 that was filed in the Line 9A Hearing and which is attached as Exhibit “Z”, that Enbridge shipped 133 bpd and 0 bpd from North Westover Station to the Sarnia Terminal in 2011 and 2012, respectively.

84. Enbridge confirmed in this Hearing that Line 9B would be taken offline or decommissioned without the reversal of flow as follows:

OH-002-2013 - File OF—Fac-Oil-E101-2012-10 02 August 6, 2013

Affidavit of Joe Miskokomon, Chief of COTTFN Page 40 of 46

When a reversed Line 9A comes into service and is at capacity (transporting crude from Sarnia Terminal into North Westover Station), it is anticipated that the majority if not all the crude demanded at North Westover Station will be sourced via Line 9A due to the dynamics associated with lower priced inland crude versus higher priced tidewater crude. Due to this pricing dynamic, if Line 9B were to not be reversed, the demand for crude sourced via Line 9B at North Westover Station would be minimal such that Line 9B would become deactivated or potentially decommissioned or abandoned.37

The federal Crown has failed to consult or accommodate COTTFN

85. For the reasons set out above, operation of Line 9 following Project completion has the potential to introduce significant new risks, impacts, and infringements of our Aboriginal and treaty rights.

86. I am informed by COTTFN’s lawyer in this matter, Mr. Scott A. Smith, and believe to be true that:

(a) the federal Crown therefore has a constitutional duty to ensure that COTTFN is properly consulted and accommodated in respect of these potential impacts. In particular, the Crown is required to engage COTTFN in a meaningful and good faith consultation process that allows for an appropriate and thorough review of the potential impacts of the Project on our Aboriginal and treaty rights;

(b) the consultation process requires the Crown to listen to our concerns and to take them into account in its decision- making process, and, under the circumstances, will likely lead to the need for accommodation; and

37 Enbridge Response to Aaamjiwnaang First Nation (“AFN”) and Chippewas of the Thames First Nation (“COTTFN”) Information Request No. 1, IR Response 3.5

OH-002-2013 - File OF—Fac-Oil-E101-2012-10 02 August 6, 2013

Affidavit of Joe Miskokomon, Chief of COTTFN Page 41 of 46

(c) the NEB is legally required to assess whether COTTFN has been properly consulted and accommodated in respect of these potential impacts.

87. The federal Crown has not consulted COTTFN about the potential for the Project to adversely impact our Aboriginal and treaty rights. Our rights and interests have also not been accommodated by the federal Crown. In fact, there has been no communication between COTTFN and the federal Crown about this Project whatsoever.

88. Enbridge’s engagement activities have also been wholly inadequate to date and cannot substitute for or satisfy the federal Crown’s constitutional duties. I understand from Enbridge’s response to our information requests and believe to be true that:

(a) the federal Crown has not delegated the procedural aspects of its constitutional duty to consult and accommodate COTTFN to Enbridge;38 and

(b) Enbridge has not assessed whether the Crown has a duty to consult and accommodate COTTFN in respect of the Project.39

89. Enbridge’s efforts to engage COTTFN about the Project have not meaningfully addressed our concerns about potential health impacts and impacts on our Aboriginal and treaty rights. Enbridge has not:

38 Enbridge Response to AFN and COTTFN Information Request No. 1, IR Response 1.1. 39 Ibid., IR Response 1.5.

OH-002-2013 - File OF—Fac-Oil-E101-2012-10 02 August 6, 2013

Affidavit of Joe Miskokomon, Chief of COTTFN Page 42 of 46

(a) completed a pipeline integrity engineering assessment for Line 9A for the operating conditions that will exist following completion of the Project. The amount of crude oil shipped on Line 9A will increase by 150,000 bpd and will include heavy crude. The pipeline integrity engineering assessment submitted by Enbridge in the Line 9A hearing did not address or take these important factors into account, and the assessment submitted by Enbridge in this Hearing is limited to Line 9B; and

(b) assessed the socio-economic and environmental effects of operating Line 9A after Project completion,40 including:

(i) whether there will be an increased frequency of spills, leaks, and discharges from Line 9A following Project completion;

(ii) whether larger volumes of commodities will be spilled, discharged and will leak from Line 9A following Project Completion; and

(iii) the health, environmental, and socio-economic effects of such spills, leaks, and discharges.

90. Enbridge has also failed to assess the cumulative effects of operating Line 9 following Project completion in combination with other projects or activities that have been or will be carried out.

91. The only effects that Enbridge has assessed are those narrowly arising from the modifications to the pipeline that need to be carried out to enable the reversal of flow and to increase the capacity of Line 9.

40 Ibid., IR Response 2.10.

OH-002-2013 - File OF—Fac-Oil-E101-2012-10 02 August 6, 2013

Affidavit of Joe Miskokomon, Chief of COTTFN Page 43 of 46

92. Given Enbridge’s failures to assess the above-noted effects, there is no basis for COTTFN to understand, or for Enbridge or the NEB to assess, how the Project may impact our reserve and our Aboriginal and treaty rights. Needless to say that without this information Enbridge (or the federal Crown) cannot meaningfully engage (or consult) with COTTFN about the Project.

93. Enbridge states in its application that it does not anticipate that the Project will impact traditional land uses, and that it “has not been made aware of any current use of these lands for the purposes of exercising traditional rights or activities.”41

94. COTTFN has specifically told Enbridge that its members use lands and resources in the vicinity of Line 9, and that those uses will be adversely impacted by spills, leaks, or discharges of crude oil from Line 9 in those areas. Further, specific evidence of our use of lands and resources is set out above and is documented in greater detail in the preliminary Traditional Land Use Study attached as Exhibit G.

Closing

95. For the reasons set out above, the Project has the potential to cause adverse impacts on our Aboriginal and treaty rights.

96. COTTFN has not been consulted by the federal Crown in respect of such potential adverse impacts on our rights and interests. We are constitutionally entitled to be consulted by the federal Crown in a meaningful and respectful way that allows for appropriate and thorough review of the potential impacts of the Project on our Aboriginal and treaty rights and other interests.

41 Enbridge Application, at p 35 of 54.

OH-002-2013 - File OF—Fac-Oil-E101-2012-10 02 August 6, 2013

Affidavit of Joe Miskokomon, Chief of COTTFN Page 44 of 46

97. The inherent risks and danger of transporting heavy crude in pipelines, and our concerns about how the materialization of those risks and danger could adversely impact our health, interests, and rights, underscores the inadequacy of the information provided by Enbridge to us and the NEB.

98. In short, this regulatory process has not assisted in effecting the meaningful consultation mandated and required by the constitution due to the novel impacts this Project risks causing to our Aboriginal and treaty rights.

99. Key steps that Enbridge and/or the federal Crown must take to address our concerns include:

(a) complete a pipeline integrity engineering assessment for Line 9A based on the additional 150,000 bpd and the heavy crude that will be shipped on Line 9A following Project completion;

(b) assess the potential environmental effects and cumulative environmental effects of operating Line 9 following Project completion, including:

(i) whether there will be an increased frequency of spills, leaks, and discharges from Line 9A following Project completion;

(ii) whether larger volumes of commodities will be spilled, discharged, and will leak from Line 9A following Project Completion;

(iii) the health, environmental, and socio-economic effects of such spills, leaks, and discharges;

OH-002-2013 - File OF—Fac-Oil-E101-2012-10 02 August 6, 2013

Affidavit of Joe Miskokomon, Chief of COTTFN Page 45 of 46

(i) provide COTTFN with all necessary information about the Project to understand and assess how the Project may adversely impact our Aboriginal and treaty rights;

(ii) provide the information to COTTFN in a timely way so that we have adequate time to process the information and understand the nature of the Project’s impacts;

(iii) provide funding to pay for all costs incurred by COTTFN in respect of the Project, including to hire consultants to help COTTFN understand and assess the information provided, and to assess how the Project may adversely impact our Aboriginal and treaty rights;

(iv) provide COTTFN with the opportunity to make submissions for consideration after steps (a), (b), and (c)(i) – (iii) have been carried out;

(v) take our concerns into account; and

(vi) provide COTTFN with written reasons to show how our concerns were considered and to explain how they were taken into account and reflected in the Crown’s decision.

OH-002-2013 - File OF—Fac-Oil-E101-2012-10 02 August 6, 2013

Affidavit of Joe Miskokomon, Chief of COTTFN Page 46 of 46

100. Moreover, engagement must focus on accommodating our rights and interests. Appropriate accommodation in the circumstances of the Project involves economic compensation. COTTFN is entitled to share in the revenues generated by projects carried out on our traditional territory as a corollary of our Aboriginal and treaty rights, and the potential for such projects to adversely affect our rights and interests. For this reason we are asking to be compensated by Enbridge on a go-forward basis for the shipment of crude oil on Line 9 following Project completion. We will address our concerns about compensation for historic infringements of our Aboriginal and treaty rights elsewhere.

SWORN before me in the City of ) Toronto this day of August, 2013. ) ) ______) Chief Joe Miskokomon ) ) ) A Commissioner, etc. )

Preliminary Traditional Land Use Study Chippewas of the Thames First Nation

August 5, 2013

Eagle Sun Consulting 1 Dr. James N. Tanner, PhD

1 35 Wolf Drive, Redwood Meadows, Alberta, T3Z 1A3, Ph (403) 266-1201, Fax (403) 266-2701, www.eaglesun.ca

- 1 -

1.0 Executive Summary

This is a preliminary traditional land use study carried out for Chippewas of the Thames First Nation (“COTTFN”) to document and describe traditional practices carried out by current land and resource users in the proximity of the Line 9 right-of-way, or which otherwise may be affected by Enbridge Pipelines Inc.’s current application to reverse the flow and increase capacity on Line 9 or by any spill, leak, or discharge of oil that occurs on Line 9 in the future.

The study was limited in scope and extent. Because of the limited focus on the Line 9 right-of-way, only the amount of background research necessary to achieve a historical context was carried out and no in-depth historical, archeological, anthropological and/or ethnographic research was performed. A smaller number of land and resource users were interviewed during the study than would typically be interviewed in a full traditional land use study.

Seventeen (17) Elders and other COTTFN land and resource users were interviewed over the course of four days in July 2013. The data from these interviews were collected on video and audio tapes, and the locations of land and resource use identified by the interviewees were overlaid on a map of the area for presentation in this report. Two interviewees were selected for site visits to explain the features and significance of the site in question to the interviewer and obtain photographs. These photographs are included in this report.

COTTFN is the continuation of the Bear Creek and Thames River Chippewa, historically recognized hunter-gatherer societies that existed in the area between Lake Huron, Lake St. Clair, and Lake Erie prior to contact. These peoples survived and prospered historically by practicing annual, cyclical rounds of hunting, fishing, gathering, and trapping at various sites strategically selected for their access to particular resources that were seasonally available. The descendants of these two Chippewa peoples have now merged to become one community, COTTFN.

- 2 -

Given that COTTFN is actively engaged in the process of selecting lands which may be partially based upon the criteria of re-establishing historical uses and re-enforcing current uses of lands and resources, such an event would also seriously impair COTTFN’s ability to achieve its future traditional land use goals.

2.0 Introduction and Scope of Study:

Eagle Sun Consulting was engaged by Gowling Lafleur Henderson LLP on behalf of Chippewas of the Thames First Nation (“COTTFN”) to perform this preliminary traditional land use study (“Study”) for Enbridge Pipelines Inc.’s Line 9B Reversal and Line 9 Capacity Expansion Project (“Project”). Line 9’s existing right-of-way runs north of COTTFN’s reserve lands (“Reserve”) and through COTTFN’s traditional territory. COTTFN’s traditional territory, the location of its reserve lands and the location of the portion of the Line 9 right-of-way that crosses COTTFN’s traditional territory are shown in Figure 3. Line 9 crosses the Thames River roughly 1.5 km east of the Bryanston Pump Station.

The Study describes, on a preliminary basis, the historical and current use of lands and resources by COTTFN members in proximity of the Line 9 right-of-way or which otherwise may be affected by the Project and/or the operation of Line 9 following Project completion.

The Study is “preliminary” because of its limited scope and extent. The scope of the Study only includes the area in close proximity to the Line 9 right-of-way. The Study does not explore or document the use of land and resources in other parts of COTTFN’s traditional territory. Moreover, a smaller number of land users were interviewed during the Study than would typically be interviewed in a full traditional land use study. The Study is also preliminary in the sense that it does not describe COTTFN’s cultural practices in detail and did not involve in-depth historical, archeological, anthropological, and/or ethnographic research components, issues that would typically be covered in a full traditional land use study. However, despite being preliminary in nature, the Study was performed using the same interview and mapping methodologies employed in full traditional land use studies. The Study therefore provides a robust preliminary description of the use of lands and resources by COTTFN

- 3 -

members that can be used to understand how the Project and the operation of Line 9 following Project completion may adversely impact COTTFN’s traditional land and resource use practices.

The Study was performed by Dr. Jim Tanner of Eagle Sun Consulting. Dr. Tanner’s CV is attached as Appendix 1. Dr. Tanner specializes in carrying out Aboriginal traditional land use and traditional knowledge studies in both treaty and non-treaty contexts, having produced many comprehensive studies for projects engaging business, government, and Aboriginal interests. Dr. Tanner has also acted as a negotiator and intermediary in similar contexts and is a highly experienced consultant that regularly advises business, government, and Aboriginal interests in a variety of circumstances that engage a diversity of topics such as resource development, economics, environmental regulation, and strategic planning. Dr. Tanner obtained his PhD from the University of Calgary in 2004. Dr. Tanner’s thesis focused on Aboriginal subsistence economies. Dr. Tanner also holds a Master’s of Science in Management from MIT, and Master’s and Bachelor’s degrees in economics from the University of Alberta. Dr. Tanner has been published in several books and other publications in connection with traditional land use and knowledge studies and in the field of economics.

3.0 Methodology:

Information for traditional land use studies is typically obtained from the following sources: (i) archeological and anthropological searches; (ii) historical and archival documentation; and (iii) the collection of original data through interviews of Elders and land and resource users in the community. Once compiled, this information is synthesized into a description of the characteristics and locations of the historical and current traditional land and resource use of the first nation.

Data collected by interviewing 17 Elders and other land and resource users who are members of COTTFN provided the main source of information on traditional land and resource use for the Study. These 17 Elders and other land and resource users were selected by officials from the COTTFN Treaty, Lands, and Environment department and were interviewed over a four day period. Because the Study was intended to be very narrow in scope, a short, focused questionnaire “guide” was used rather than a more comprehensive questionnaire covering a variety of topics. This guide is attached as Appendix 2.

Data obtained during the interviews were collated using a standard mapping process. Two maps of the area surrounding the Reserve, which showed the Line 9 right-of-way, were produced and displayed in front of the interviewees. The interviewees were asked questions about their traditional use activities and asked to show where these activities occurred on the map. They would mark the map assisted by the interviewer. Locations and types of activities and types of resources were written on the maps. If a location where an activity was carried out was not on the map, the locations were marked on the margin of the map with arrows indicating the direction of the location. In some cases other, larger- scale maps were obtained and referred to when necessary.

Each land and resource user was questioned about their land and resource use and that of their family members over their lifetime. The interviews were recorded on video and audio tapes. The interviewer made notes on the questionnaire form and recorded land and resource use locations on the maps as each interview proceeded. At the end of their respective interviews, two of the land and resource

- 4 -

users were selected for field visits to further discuss, document, and explain the practices that they carried out at some of the sites they identified during the course of their interview.

The information identified and recorded on maps was then transferred to a Geographic Information System (“GIS”) computer system to generate a composite map of land and resource use (attached as Figure 3). Dr. Tanner then interpreted and summarized the results in this Report.

The archeological and anthropological research performed for this Study was limited to a cursory review of limited materials available to Dr. Tanner. A literature review was performed only to the extent necessary to establish a historical context upon which the original interview research could be framed.

- 5 -

4.0 Results of the Chippewa of the Thames Traditional Land Use Study

Background Research:

Ojibwe traditional knowledge includes a creation narrative and a wealth of stories which are a part of their oral tradition. Many of the stories have been written down and appear in contemporary publications. The Ojibwe oral tradition holds that the Ojibwe peoples originally came from areas immediately adjacent to the Atlantic Ocean and migrated inland, eventually taking-up lands surrounding the Great Lakes.2

Archaeological information shows many sites containing evidence of Ojibwe habitation throughout the primary area of interest for the Study, namely southwestern Ontario in the environs of Lake Huron, Lake St. Claire, and Lake Erie. Many sites in this region are identified as being Ojibwe sites. ( B. George Anthropologist; Interview )

Ojibwe traditional oral history, which is corroborated by other historical documents,3 holds that the lands in southwestern Ontario experienced several territorial wars and conflicts, up to and including the war of 1812. For example, Ojibwe historian David Plain discusses conflicts between the Ojibwe and the Sauk, and describes the Ojibwe as at war with the Iroquois throughout the early 1700s. 4 Over the course of the intervening 120 years, up to the settlement period starting around 1830, there were many other conflicts, wars and influences connected to the fur trade, settler migration, and the various French, English, and American wars that affected the Ojibwe peoples in southwestern Ontario. However, even though other first peoples also used the subject lands and there were overwhelming military pressures on the lands, the historical record shows that the Ojibwe peoples, specifically the Ojibwe of the Thames peoples, have consistently occupied these lands since the period before European contact and up to and including settlement.5

Significant peer-reviewed research exists regarding the occupation of southwestern Ontario since 1800. In one such work, Dr. Neal Ferris (2009) has described the “boundaries” of the southwestern Ontario Ojibwa communities in the early 1800s. In a map, which is reproduced below and marked as Figure 1, Dr. Ferris presents the “boundaries” for the Thames River and Bear Creek communities (areas labeled “1” and “2”, respectively).

As a result of various historical events, the descendants of the members of these two historical communities “merged” and their descendants now comprise COTTFN. The dotted line represents the

2 The Traditional History and Characteristic Sketches of the Ojibway Nation, George Copway, Kessinger Publishing, LLC, 2006. http://www.everyculture.com/multi/Le-Pa/Ojibwa.html: www.tc.umn.edu/~call0031/ ojibwa .html ; Johnston, Basil. The Manitous: The Spiritual World of the Ojibway. New York: HarperCollins Publishers, 1995;Johnston, Basil. Ojibway Heritage. New York: Columbia University Press, 1976. 3 Tanner, Helen Hornbeck. The Ojibwa. New York: Chelsea House Publishers, 1992. 4 David D. Plain, The Plains of Aamjiwnaang, Trafford Publishing, 2007. 5 Ibid. Tanner, Helen Hornbeck, 1992.

- 6 -

previous occupation of the Bear Creek communities prior to relocating further north. The original research for these boundaries is referenced to Dr. Ferris’ thesis. Dr. Ferris placed the word “boundaries” in quotation marks because these territorial ranges are an approximation of the concentration or center of community land use activities. They are not analogous to clearly delineated lands in the sense of modern political borders or boundaries.

Ferris’s area number 1 likely depicts a home range or “traditional territory” of one of the groups making up COTTFN’s ancestors. At the center of this area, the north, middle, and south branches of the Thames merge. This site was identified by interviewees as a key camp of the COTTFN peoples. This home range includes the portion of the Thames River crossed by Line 9 just east of the Bryanston Pump Station. As I will discuss in greater detail below, several key traditional practices continue to be carried out by COTTFN land and resource users at or near this site.

Figure 1: Historical Ojibwe Home Range Areas in Southwestern Ontario

- 7 -

Annual Rounds:

Consistent with the attributes often seen amongst hunter-gatherer societies, COTTFN’s ancestors moved readily throughout their territories using lands where various resources became available according to the season or time of year. Dr. Ferris produces a diagram in his May 20, 2009 paper, which emphasizes the importance of specific camps and other sites, which is reproduced below as Figure 2.

Figure 2: The Ojibwe of Southwestern Ontario’s “Annual Round” of Seasonal Resource Use and Associated Seasonal Camps

For example, Dr. Ferris’ diagram includes a “sugar camp ”, which of course would be located in wooded areas containing maple trees, a “fishing camp”, which would be located close to a particular river where fish spawned, a “summer camp” which may include sites located close to land with favourable agricultural growing conditions, a fall camp located near gathering sites, and a winter camp strategically located near hunting and trapping grounds that afforded winter fur resources.

It is well-known and understood that the livelihood of hunter-gatherer societies depends upon the productivity and viability of the lands and resources. The community in question must respond and

- 8 -

adapt to the ways that the resources present themselves. Ferris (2009) mentions that sometimes there would be larger gatherings, but many times smaller groups of families would group together in camps. In my view, this adaptation is likely based upon the availability of the resources they sought to harvest. For example, a community may be able to densely congregate in the summer when resources are plentiful, but in the wintertime must disperse to make effective use of the land for hunting and/or trapping purposes. For societies organized in this way, this mobility is an integral part of their livelihood, self-sufficiency, and arguably their very existence.

RESULTS:

The Persistence in Carrying Out the Annual Rounds:

The persistence of the historical seasonal pattern of land and resource use described by Dr. Ferris was confirmed during the Study. It continues to be taught and followed by COTTFN members. For example, COTTFN member Delbert Riley II described how COTTFN’s traditional harvesting cycles are still taught to some of the youth of the community. He emphasized that they did not use months or seasons to identify times of the year, but rather used names of moons to signal the appropriate time to carry out certain harvesting and land use activities. He described much the same cycle, beginning with the collection of maple sugar, followed by the pickerel run up the Thames River. He described additional fish species and summer gathering of mushrooms and berries. He spoke of shooting raccoons and ducks and fishing for bass at Lake Erie. He also described the mid-summer and fall activities of harvesting vegetables and fruits and referred to the fall as “deer season”. Finally, Mr. Riley mentioned the disruption that the imposition of various colonial policies on COTTFN has caused to the community’s ability to carry out this annual cycle, consistent with comments made by several other interviewees regarding harassment by game wardens and conservation officers which I will describe in greater detail below.

Many of the other land and resource users who were interviewed harvest a variety of species and gather berries and medicines in traditional locations consistent with the historical seasonal pattern of land and resource use.

Fishing:

Many of the interviewees continue to fish for food and catch a variety of species in rivers and lakes within the traditional territory identified above. Almost all of the interviewees mentioned the Thames River as the main location for fishing. They identified different sites along the Thames River where they fished for various species at opportune times. John Fisher caught suckers and smelt on the Thames on the Reserve in the summer. Delbert Riley Jr. spoke of a fishing camp in the springtime catching pickerel on the flats on the Reserve. Ernest Foster Riley fished on the Thames River at Moraviantown, Ontario and Arnold Albert fished in the North Thames River at many different times of the year for different species like Bass and Perch.

An important harvesting opportunity of the seasonal pattern is the pickerel run up the Thames River which occurs in the springtime in late March or early April. It is at this time that many members of the

- 9 -

COTTFN go to the Thames River to fish. Historically, this opportunity would have been exploited in many locations north of the area that is now the Reserve and in the general direction of the Wildwood Conservation Area roughly 40km north of London, but recently most of this activity is carried out on the Reserve. Fishing methods include the use of roll nets and dip nets. The interviewees stated that recently, because of low water levels and concerns about the quality of the water, there has been less fishing during the pickerel run. Figure 3 identifies several areas on the Reserve where this type of fishing takes place.

Two of the interviewees mentioned that they had also caught salmon during the pickerel run. Black Bass was another favorite fish obtained from the Thames. Suckers were also identified as a commonly caught fish. Other species mentioned were mullet, pike, chub and bluegill.

COTTFN member Arnold Laverne Albert regularly fishes north of London in Fanshawe Lake where he catches several species including perch, black bass, little rock bass, small catfish and pickerel. He explained that he used to find blue gills but they were currently no longer caught. He also fished north of Fanshawe Lake up the North Thames River where Line 9 crosses the Thames River, and further north near the Wildwood Conservation Area. He finds the same species there as are found in Fanshawe Lake. In addition to these activities, Mr. Albert also fishes south of London in regions that lie between the Reserve and London, and for trout in Lake Erie and many other lakes in the vicinity.

Other fishers such as Todd Riley fish the pickerel run using a dip net and “further up” the Thames River north of the Reserve, but felt that the River was now somewhat polluted. He had seen fish with cancerous growths and was concerned that consuming the fish would make him ill as well.

Shane Henry also fishes and hunts up the Thames River north of London as far up as the Wildwood Conservation area near where Line 9 crosses the North Thames River.

Raymond Deleary identified fishing areas on the Thames River north of the Reserve between the Reserve and Fanshawe Lake, as well as north of Fanshawe Lake towards the Wildwood Conservation Area and where Line 9 crosses the Thames River.

Each year in the springtime, Kelly Riley may fish in Lake Erie for smelts at Fort Stanley. Other interviewees described fishing in Lake Huron and many other inland lakes in the area.

Where possible, I have marked all favored fishing spots and the species caught there on the map, including those along the Thames River, whether on or off-Reserve.

Hunting Deer:

Shane Henry (Southern Eagle voice) is one of 6 hunters who are dedicated to maintaining COTTFN’s traditional hunting practices and teaching the youth those practices. Mr. Henry advised that this group of hunters is responsible for obtaining numerous deer and distributing the deer in a traditional sharing process. In addition to sharing harvested deer with COTTFN members, they also share it with people from the Chippewa community known as the Walpole Island First Nation. Mr. Henry said that they do

- 10 -

not think of the practice as merely “hunting” per se because they make use of many of the parts of the deer. It provides them with rawhide and meat as well as tools and other products. They give traditional thanks for the gifts they are given through this process. This group of hunters gets to the deer hunting grounds by car, truck, canoe and/or walking. If hunting by canoe, they will float down the Thames River and various creeks to hunt the deer. Mr. Henry uses the full length of the Thames River up to and including the Wildwood Conservation Area, in close proximity to where Line 9 crosses the Thames River near the Bryanston Pump Station. In addition to using waterways, these hunters make use of the road network. The extent of their hunting area extends over a large area of local roads and fields covering a large area north of the Reserve and north of London. As indicated on Figure 3, this area spans both sides of the Line 9 right-of-way, from the North Thames River west towards Kettle Point on Lake Huron. Mr. Henry stated that they learn from the animals, that the animals migrate from the north, and their migrations have changed as a result of the different crops. The deer hunting grounds as described by Mr. Henry are represented by the green area that covers much of Figure 3.

In addition to Mr. Henry’s group, there were other interviewees who hunted deer outside of the Reserve. Raymond Delaney hunted deer within an estimated 50 mile radius of the Reserve. The area extends northward and encompasses significant parts of the Line 9 right-of-way. These hunting grounds are represented by the large, light beige oval at the lower left of Figure 3.

There were several other deer hunters who concentrated their activities within the boundaries of the Reserve.

It appeared to me that deer provide a large part of COTTFN members’ nutritional needs.

Hunting / Trapping Muskrats, Raccoons, Skunk, Rabbits, and Squirrels :

Another common practice is harvesting fur-bearing animals for both fur and meat. Delbert Riley Jr. may hunt and/or trap mink, raccoon, muskrat, and skunk just northwest of the Reserve as marked by the large light green colored oval on Figure 3. Kelly Riley hunts the same species in the same area. Ernest Foster Riley also hunts in the same area, and Jonas Hadden marked an area slightly further to the north as his preferred trapping area, which is also marked by a smaller light green colored oval. There were several areas identified on the Reserve where rabbits and squirrels are shot or snared.

- 11 -

In this picture with the Thames River in the background, Shane Henry is describing the hunting activities along the Thames River south of the pipeline crossing and discussing the group of 6 hunters in the Chippewa of the Thames First Nation community who supply wild game to the community in a traditional sharing process.

Medicines:

Harvesting medicines is still an important traditional practice for COTTFN members. Sweetflag is a common medicine for colds and sore throats. Plantain, mullen, sage, sweetgrass, cedar and birch bark were mentioned but the interviewers did not provide much detail. A medicine harvesting area was pointed out by one Elder to be all along the Thames River between the City of London and the Reserve, located directly adjacent to the Line 9 crossing near the Bryanston Pump Station. Two interviewees described harvesting red willow on the flats or river bank of the Thames River near the Reserve.

Berries, Fruits, Nuts and Vegetables:

There are many different types of gathering activities practiced by COTTFN members, including gathering raspberries, strawberries, blackberries, mushrooms (morels), puff balls and grapes. Hickory trees are used for nuts but also for timber. Maple trees are used for their ubiquitous sap. Wild potatoes, wild leeks, plumbs, apples and pears are also harvested. Most of these gathering sites were identified as being located on the Reserve. Delbert Riley identified a good area for maple sap immediately to the southeast of the Reserve. Kelly Riley identified an area west of Highway 11, north of the Reserve where wild leeks could be readily found. Shane Henry identified red willow on the Thames River at the point where Line 9 crosses the Thames River. Martha E. Albert spoke about harvesting elderberries in areas accessible via secondary roads northwest of the Reserve close to the Line 9 Pipeline route.

Birds:

Shane Henry believes that he has observed that wild turkeys are “coming back” as a species. He speculated that the cause of the resurgence in population he has noticed might be because the coyotes were not preying on as many as they used to. COTTFN members now harvest many turkeys. There are few pheasants. Areas for hunting birds were for the most part the same as hunting other species because one would commonly be out hunting and encounter different species. Ducks and geese would generally be associated with larger water bodies but would be taken opportunistically. The general bird hunting area extends well beyond the Reserve and encompasses significant parts of the Line 9 right-of-way and was described in much the same manner as the hunting area for deer.

- 12 -

These birds are hunted at the same time as deer and may be included in the large green area that represents deer hunting grounds in Figure 3.

The data obtained during the 17 interviews conducted for this Study were consolidated into a composite map. Figure 3 illustrates the locations where COTTFN members who were interviewed use lands and resources for traditional purposes. This map illustrates intensive patterns of land and resource use in and immediately around the Reserve, but also shows significant land use extending well into the territory defined by Dr. Ferris as COTTFN’s primary historical land and resource use area.

The picture is of COTTFN members Shane Henry and Ashley Riley standing by the Thames River approximately 100 meters north of the Enbridge Pipeline crossing. Shane Henry is explaining the medicine gathering, hunting and fishing that is carried out at this relatively pristine location. Shane has identified herbs and medicines along

the River such as red willow and spoke about hunting and canoeing on the River.

Traditional Land Use Map Location

- 13 -

Figure 3 Chippewas Of the Thames First Nation

- 14 -

According to the interviewees, the water quality of the Thames River has been declining and damming activity has affected the flows and impacted the spring pickerel runs. I anticipate that COTTFN members’ fishing activities on the Thames River would increase in the future if active measures were taken to improve the quality and quantity of water in the Thames River.

The interviewers also spoke of crops affecting the habits of the animals and deer migrating from the northern regions. It is important to maintain the health of these territories along the pipeline to ensure the main staples of COTTFN remain available to them.

Impacts of Residential Schools and other Colonial Influences on the Use of Lands and Resources by COTTFN

As I alluded to briefly above, a consistent pattern that emerged from the interviews was that a number of Elders expressed concerns about the scope of their right to carry out traditional practices outside of COTTFN’s Reserve boundaries. Some interviewees expressed concerns about being arrested and charged with wildlife offences if they were to hunt or fish outside of the Reserve boundaries. Several stories were told about harassment by game wardens or conservation officers. In particular, there were two stories related to me of specific instances where government officials entered the Reserve and actively prevented COTTFN members from fishing there.

It is apparent from the evidence that I collected that the forcible confinement of COTTFN members to their Reserve, including a historical requirement for them to obtain a permit from an Indian agent in order to leave the Reserve, and other colonial policies made it very difficult for COTTFN members to continue to use lands and resources in their traditional territory as they had done in the past. Several interviewees mentioned that the residential school system had produced a disinclination to rely on traditional harvesting practices, use their indigenous language, and pass down knowledge about their culture and traditional livelihood.

It is readily apparent that the concentration of activities on and immediately around the Reserve, as illustrated in Figure 3, is a result of those colonialist policies, the effects of which were evidenced by the portion of interviewees who were either unaware of the scope of their rights or intimidated to such an extent that they were too frightened to hunt or fish off-Reserve.

The data provided by Mr. Riley and others confirms, however, that COTTFN members have continued to teach, appreciate, and carry out traditional land use practices in COTTFN’s traditional territory despite some members being mindful or concerned about being “caught” practicing their historic livelihood. This evidences that despite the Crown’s deliberate attempts to stifle their culture and traditional livelihood by the imposition of colonial laws and policies, COTTFN members continue to use their traditional lands, albeit with a different emphasis and pattern of use.

- 15 -

Comment With Respect to Future Uses:

It is my understanding that COTTFN has obtained a settlement with respect to obtaining additional reserve lands. It was apparent in the interviews that some members of the community are looking forward to acquiring lands which will enhance their ability to carry out traditional land and resource use. It is my opinion that given the historical land use area identified above, and the data gathered in this Study, which establish current land and resource uses in that area, that new reserve locations considered appropriate for carrying out traditional land and resource use would certainly be in the vicinity of the Line 9 right-of-way and the Project and continued operation of Line 9 is therefore likely to be a highly relevant consideration in the land selection process.

5.0 Conclusions

The Line 9 right-of-way traverses the heart of COTTFN’s traditional territory, which is centered on the Thames River watershed. Prior academic work and COTTFN’s oral history are aligned in establishing that COTTFN’s ancestors were hunters and gatherers who moved readily throughout their territory to intensively harvest locally and seasonally abundant resources in the Thames River watershed and elsewhere in what is now southwestern Ontario.

This Study confirms that a seasonal pattern of land and resource use continues to exist today. It confirms that COTTFN members harvest a variety of locally and seasonally abundant resources, including several species of fish, deer, muskrats, raccoons, skunks, rabbits, squirrels, birds, medicinal plants, berries, fruits, nuts, and vegetables. Harvested resources provide important sources of calories for COTTFN members. They are also used for traditional and ceremonial purposes. Traditional harvesting practices continue to be important features of COTTFN’s culture. It was evident from my interviews that many of the interviewees maintain a deep spiritual connection to the lands and waters in their traditional territory, and their relationship with the environment continues to inform their sense of self and how they view and relate to the world around them.

COTTFN members harvested resources throughout the Thames River watershed. While lands and resources were most intensively used in and immediately around the Reserve, COTTFN members made significant use of lands and resources in other areas of the watershed, including in close proximity to where Line 9 crosses the Thames River just east of the Bryanston Pump Station. The geographic location of current land and resource use, and the users themselves, have been clearly impacted by residential schools and other colonialist laws and policies.

The environmental effects of spills, leaks, and discharges of crude oil have been well documented. Given the findings set out in this Study, it is my professional opinion that a release of crude oil from Line 9 in this area would directly impact the lands historically and currently used by COTTFN and would, therefore, carry with it a serious risk of severely impairing the current exercise of rights and traditional practices associated with those lands.

- 16 -

Given that COTTFN is actively in the process of selecting lands which may be partially based upon the criteria of re-establishing historical uses and re-enforcing current uses of lands and resources, such an event would also seriously impair COTTFN’s ability to achieve its future traditional land use goals.

- 17 -

Appendix 1: CV, James (Jim) N. Tanner, BA, MA, SM, Ph. D.

Summary:

Aboriginal Land Use and Anthropological Economics Consulting

Dr. Tanner specializes in evaluation of traditional economies, conducting traditional land use studies and the assessment of industrial effects upon the traditional and current economies of Aboriginal peoples in Canada. Dr. Tanner’s recent consulting projects include valuation and cultural assessment of aboriginal use of animal and plant species, oil production versus environmental benefits and the effects of industrial projects on aboriginal ecosystems. He was qualified as an expert witness in Alberta oil sands hearings on traditional land use.

Economic Consulting

Dr. Tanner has prepared reports on oil and gas supply, national energy supply/demand balances, and socio-economic and environmental impact assessments of major industrial projects. Dr. Tanner has also advised Canadian and international governments on macroeconomic policy, environmental regulation, oil and gas regulation and resource development policy. He has built econometric models of resource economies in Canada and Colombia.

Business Consulting and Participation

Dr. Tanner has consulted in the energy business focusing on finance. He has extensive experience participating in a diversity of businesses from startups of oil and gas companies to food services and real estate development. He has acted as CFO and CEO of publicly-listed oil and gas companies. Dr. Tanner has also developed internal management control systems and prepared external reporting reports for natural gas supply. (NOVA Corporation)

Dr. Tanner has also been involved in strategic planning for corporations and for indigenous business groups. He has also implemented the consultation and negotiation strategies of Canadian Aboriginal peoples.

Environmental Consulting

• Dr. Tanner was co-founder of an oil and gas company which developed the first well abandonment fund in Alberta and the first independent flare gas cogeneration and reclamation project. • He was manager of a health food retail store and health food restaurant purchasing goods from local farmers and environmentally based producers. • He managed a CIDA foreign aid project in Colombia where advice on environmental and energy regulation was delivered. • He was a municipal councilor for the Municipality of Foothills in Southern Alberta and was a member of several environmental planning and land use planning boards in the region.

- 18 -

• Dr. Tanner served on the board of the Cross Conservation Area, a land trust for conservation in southern Alberta.

Education:

Ph.D., U of C, Calgary, Alberta, 2004: Economics, Anthropology and Aboriginal Law: The Valuation of Subsistence Economies.

S.M. (Master of Science in Management), Massachusetts Institute of Technology, Cambridge Massachusetts, 1984. Thesis Topic: Legal and Economic Implications of Deep Sea Mining.

M.A. (Master of Arts – Economics), University of Alberta, Edmonton, 1982, Thesis: Evaluation of oil and gas Reserves.

BA (Bachelor of Arts – Economics) University of Alberta, Edmonton, 1976, Specialization: Resource Economics, political science, anthropology.

Other specialized education:

International Resource Law , Harvard Law School Business Law , University of Lethbridge, Contract Law , University of Calgary Aboriginal Law, University of Calgary Lecturer , University of Calgary, 1991 to 1996, Economics of Oil and Gas. French , University of Laval, Quebec, Canadian Securities Course

Consulting Projects (Aboriginal):

Reviewer: Marathon Mining Project, Ontario. White Bear First Nation: Traditional Land Use Project. Negotiator: Fort McMurray First Nation Treaty Land Entitlement. Negotiator: ACFN agricultural benefits, consultation processes. Negotiator: Mikisew Cree FN Treaty Land Entitlement. Negotiator: Mikisew Cree FN Agricultural Benefits. Advisor: Government of Nunavut on compensation negotiations; traditional resources. Advisor: Deh Cho First Nations - Mackenzie Valley Pipeline benefits, application of TEK. Expert Witness: EUB Hearings on Kearl Oil Sands Project, (TEK and TLU) Head Negotiator: Oil Sands - Long Term Benefits Agreement – Mikisew Cree. Head Negotiator: Bennett Dam negotiations – Mikisew Cree. Paul First Nation: Assessment of traditional losses due to oil spill in Lake Wabamun. Piikani First Nation : Traditional Land Use Study, economic development consulting. Shuswap First Nation : Economic development consulting.

- 19 -

Negotiator and Assessor: Losses of traditional land use - Lutsel’ke First Nation, NWT. Cumulative Environmental Management Association: Traditional ecological knowledge assessment and report. Chipewyan Prairie Dené First Nation : - TLU Study. Fort McMurray # 468 First Nation: - Traditional Land Use. Environmental Impact Assessment Reviews : - (review of EIAs TEK and TLU for aboriginal groups on oil sands projects). Mikisew Cree First Nation : - Traditional Land Use Study/ TEK Study. Athabasca Chipewyan First Nation : - Traditional Land Use Study/ TEK Study. Athabasca Chipewyan First Nation : - Traditional Land Use; Evaluation of losses. Traditional Land Use assessment for B.C. Hydro – Bennett Dam effects on Athabasca River Delta. 2002. Ft. McKay First Nation and Fort McKay Métis Local #122: - Traditional Land Use Study. Ft. McKay First Nation and Fort McKay Métis Local #122: - Economic Evaluation of Traditional Harvest Losses, TEK proposals. Ft. Liard First Nation : Economic and Business Development Consulting.

CIDA: Government of Colombia: Energy and Environmental Aid Program

Dr. Tanner was the manager of a CIDA (Foreign Aid) project to deliver Canadian environmental and energy consulting experts to the Environment and Energy Departments of the Government of Colombia. This involved choosing and coordinating Canadian experts in these fields to deliver foreign aid services. In addition Dr. Tanner provided an assessment of Colombia’s marginal oil fields and proposed terms for joint ventures with large foreign oil companies. He helped set up the Colombian oil and gas Reserve assessment policies and assisted in the resource assessment program for future Reserves. He assisted in the administration of projects to deliver environmental regulation consultation and provided administrative services in delivering the project in Colombia.

Evaluation of Colombia Oil and Gas Royalty Program

Dr. Tanner advised the Colombian Government on their Oil and Gas policy including structuring international oil and gas bidding rounds, Reserve estimation practices, national oil and natural gas royalty policy and regulation and exploration and supply economics for the national oil company of Colombia.

Government of Mexico: Oil and Gas Supply Demand Balance:

Dr. Tanner assisted in assessing natural gas and oil balances, planning, environmental effects and energy efficiency.

1999 – 2000 Canadian National Round Table on Energy and the Environment: Dr. Tanner provided analysis of the development opportunities of local communities in the NWT as a result of the renewed interest in oil and gas and pipeline activity in northern Canada. He also reviewed the likely supply of oil and gas likely to be available from the NWT.

- 20 -

TCPL (Polar Gas Consortium):

In 1999, Dr. Tanner completed a study for TCPL on the economics and prospects of the Mackenzie Valley pipeline. This report was done with CERI. This included Treaty analysis and aboriginal community relations and economic development.

1997 to 2000 : Consultant, Manager – Colombia Project -Canadian Energy Research Institute- CIDA

1995 to 1998 – Elected Councilor – Municipal District of Foothills #31 During his term as a municipal councilor, Dr. Tanner became involved in a series of planning, environmental and financial functions. As a councilor he was required to protect the public interest with respect to ground water allocations and was involved with land use planning issues. He was a member of the Kananaskis Forest Harvest Advisory Board. He participated in the Fordville Lakes environmental hearings, and on the environment and recycling committees. He was involved in a project to establish environmental wildlife corridors from Kananaskis to the Cross Conservancy and the City of Calgary. He served on the inter-municipal council and helped negotiate agreements with the City of Calgary on environmental and planning issues. He served for 4 years on the Board of Directors of the Cross Conservancy. He supervised the development of area structure plans in the northern region of the municipality. He re-worked the taxation collection timing to coincide with the requirements of the Municipality reducing the effective taxation rates and restructuring the municipal debt. He changed the financial reporting systems.

1990 to 1996: CEO Kuma Resources Ltd . Public oil and gas exploration and production company listed on the Alberta Stock Exchange. As CEO and CFO, Dr. Tanner was responsible for all aspects of company business.

1990 – 1994 – Senior Consultant, NOVA Corporation , Calgary, Alberta. NOVA Corporation asked Dr. Tanner to review their computer models for estimating gas supply and deliverability in Western Canada for pipeline planning as well as the corporate reporting and the associated management information systems. He helped develop the company’s internal reporting system for Reserve estimation and reporting as well as their process for external report presentation. When he finished that review, he was asked to assist in writing the corporate Annual Plan for NOVA pipeline planning for three years. He also investigated co-generation proposals, gas storage proposals, and was responsible for documenting the computer-based system planning process to support ERCB hearings on gas transmission options.

1985 to 1996: Director and Chief Financial Officer of Tanner Arctic Oil Ltd. and Baloil Resources Ltd. (Oil and Gas E & P Companies)

1985 – President, Tanner Resources Ltd. Consulting in Economics and Management. (Clients included: Government of B.C., Government of Alberta, ESSO, NOVA, Government of Canada, Government of Colombia, Government of Mexico, Ft. Liard Band, Ft. McKay Band, Ft. Chipewyan Band; Finance and Business Clients included: Bruse Electric, Kuma Power Corporation, Alma Oil and Gas Ltd. Circle Energy Ltd., Mika Technology Ltd., Teckcore Ltd., Frontier Engineering Ltd., Sovereign Life Insurance Company)

- 21 -

1980 to 1985 - Senior Economist CERI and Alberta Government Energy Department. Responsible for assessing national policy issues in oil and gas, coal, solar, nuclear and other energy sources.

Accounting, Valuation and Financial Analysis

As a business participant, accountant and CFO, and education at Lethbridge, MIT and Harvard, Dr. Tanner has had significant experience in preparing and analyzing balance sheets and income statements as well as assessing businesses. His experience managing oil and gas companies listed on exchanges, has given him significant experience in Canadian and American reporting requirements, in corporate governance policies and national regulations. His education in business law, management and financial accounting has helped Dr. Tanner in assessing resource values in oil and gas, electricity and renewable resources and Aboriginal opportunities. As a financial economist he was asked to assess the implications of the western banking crisis in the 1980s for Sovereign Life Insurance Company. Dr. Tanner built financial analysis programs for the Government of Colombia and assessed the relative value of marginal oil and gas fields. He currently assesses the value of renewable aboriginal resource production. He has significant experience in preparing business plans and setting up control, reporting and accounting systems.

Negotiations and Contract Analysis

Dr. Tanner has worked as a negotiator on Aboriginal infringement cases in Northern Alberta and Northern Canada. He has a background in contracts and business experience as well as a background in aboriginal and international law. He has had significant experience negotiating public company financings and loan agreements as well as joint venture agreements and business combinations.

Dr. Tanner has been certified as an expert witness on the effects of oil sands development on the traditional economies of Aboriginal peoples in northeastern Alberta.

Selected Publications: Traditional Land Use Books:

James N. Tanner, C. Cormack Gates, PhD, Bertha Ganter, Some Effects of Oil Sands on the Traditional Economy of Fort McKay . Fort McKay Industrial Relations Corporation, 2001.

James N. Tanner and Alice Rigney, Footprints on the Land, Tracing the Path of the Athabasca Chipewyan First Nation , Nicomacian Press, 2003.

James N. Tanner and Alice Rigney, Athabasca Chipewyan First Nation: Traditional Land Use Study , Nicomacian Press, 2003.

James N. Tanner, Nistawayaw, “Where the Three Rivers Meet”, Fort McMurray #468First Nation, Traditional Land Use Study , Nicomacian Press, 2006.

- 22 -

James N. Tanner, Kai’ Kos’ Dehseh Dené: The Red Willow River (Christina River) People, A Traditional Land Use Study of the Chipewyan Prairie First Nation , Nicomacian Press, 2006.

Economics Publications: James N. Tanner, Why Labour Works, The Valuation of subsistence Economies , University of Calgary, PhD Thesis, March 2004. James N. Tanner, The Economics of Conventional Oil Supply in Saskatchewan , Published in World Energy Markets: Coping with Instability, Edited by John Rowse; International Association of Energy Economists, 1987. James N. Tanner, Reserves of hydrocarbons in Alberta: A review of Canadian Petroleum Association and Alberta Energy Resources Conservation Board estimates and methodology, Canadian energy research Institute, Calgary, 1986 James N. Tanner , An Evaluation of Crude Oil Supply in Saskatchewan, Canadian Energy Research Institute, Calgary, 1987 James N. Tanner and Anthony Reinsch, Canadian Crude Oil Supply Demand Balances , Canadian Energy Research Institute, Calgary, 1989 James N. Tanner and Leonard Coad, Dare to be the Best, Economic Solutions for Canada , Nicomacian Press, Calgary, 1992.

Personal Details Current Residences: Site 23, RR 8, PO Box 18, Calgary, Alberta, T2J 2T9 and 148 Munden Farm Rd. North Carolina 28570 Canadian Citizen Phone: Work Cell : 252-269-8424 Home : 252-247-2047 Born: 1951 E-mail: [email protected]

Married, two children and 3 grandchildren.

Languages:

English is Dr. Tanner’s mother tongue. French : Some proficiency. Spanish: Limited proficiency.

- 23 -

Appendix 2: Questionnaire

Introductory Questions 1. Where were you born? 2. What is your birth date? 3. Where have you lived in your life? 4. Are your parents from this area? If not, where are they from? 5. What types of hunting/harvesting activities have you participated in? 6. Who have you hunted/harvested with? 7. What types of employment have you been involved in during your life? 8. Can you tell us a bit about your heritage?

Land Use Questions **For all land use questions differentiate between historic and contemporary information. 9. How do you normally travel to hunting and harvesting locations? (e.g. walking, boat, truck, ATV) 10. Can you show me camping/cabin locations used by you and others ? [show on map] a. Places that you have used in your lifetime b. Places that you know your people have used 11. Can you show me yours and others trap lines and trapping locations in the area? [show on map] 12. Can you show me any portage routes you are knowledgeable of? [show on map] 13. Can you show me any old fur trading posts you knowledgeable of? [show on map]

Harvesting and Wildlife Questions **For all harvesting and wildlife questions differentiate between historic and contemporary information.

Fur-Bearing Animals 14. Which fur-bearing animals do you harvest? (e.g. moose, deer, bear, caribou, lynx, marten, wolf, fox, beaver, rabbit) 15. Where do you harvest each species? [show on map] 16. How do you harvest each species (e.g. trapping, hunting) 17. When do you harvest each species? 18. What type of habitat does each species prefer? Why? [may show on map] 19. Are there times of the year when each species is found in greater or lesser abundance? When? 20. Does this species have different seasonal movements or patterns (e.g. migrations, birthing)? Can you explain them and/or show them on the map? 21. Are there any other animals you would like to share information about that aren’t actively harvested by your people?

Birds 22. Which birds (or their eggs) do you harvest? (e.g. geese, ducks, grouse, partridge)

- 24 -

23. Where do you harvest each species? [show on map] 24. When do you harvest each species? 25. What type of habitat does each species prefer? Why? [may show on map] 26. Does each species migrate? If so, when? 27. Are there any other birds you would like to share information about that aren’t actively harvested by your people?

Fish 28. What type of fish do you catch in your area? (e.g. pickerel, northern pike, lake trout, rainbow trout, sturgeon, whitefish, perch, smelt, minnows) 29. Where do you go to catch fish? What do you catch there? [show on map] 30. When do you harvest each species?

Plants 31. What types of plants do you harvest? (e.g. food plants – berries, mushrooms, mint leaves, Labrador tea; medicinal plants; ceremonial plants) 32. What do you use these plants for? 33. Where do you harvest each type of plant? [show on map] 34. When do you harvest each type of plant?

Other Things Collected or Gathered 35. Are there any other materials that you harvest? (e.g. stone, wood, drinking water or other materials) 36. What do you use those materials for? 37. Where do you harvest these? [show on map] 38. When do you harvest these?

Cultural Resources Questions 39. Are there any gravesites located in your area? [show on map] 40. Are there any other archaeological sites in your area? [show on map] 41. Are there any spiritual, sacred, or ceremonial sites located in your area? [show on map] 42. Are there any gathering sites located in your area? [show on map] 43. Are there any other important sites in your area you would like to tell us about? [show on map] 44. Are there any legends or stories from your area you would like to tell us about? 45. Is there anything else you would like to share with us?

Other Questions 46. Are you aware of the proposed Enbridge Pipeline Project? 47. If so, what are your thoughts on the project?

- 25 -