Angela Love
From: Daniel T'seleie
Good morning. Attached is a motion on behalf of Liidlii Kue First Nation requesting permission of the MVLWB to file supplementary submissions. Please let me know I should deliver this motion in a format other than email.
I have also attached the two supplementary submissions for the Board’s consideration: a supplement to LKFN’s Hearing intervention (including two attachments), and a supplement to LKFN’s comments on the Permit draft conditions (including one attachment). Please let me know if I should provide copies of this information to the Applicant and/or other parties immediately, or if I should wait for the Board’s ruling on the motion.
Please contact me if you have any questions or concerns. Thank you.
Daniel T’seleie Student‐at‐Law Olthuis Kleer Townshend LLP 4902 49th Street, 3rd Floor PO Box 1470 Yellowknife, NT X1A 2P1
C: 867‐444‐0509 [email protected]
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1
Comments on Draft MVLWB Line 21 License and Permit Conditions
The following presents a list of comments and recommendations from Łíídlįį Kų́ę First Nation regarding i) Enbridge’s Line 21 MVLWB’s License Conditions and ii) the Line 21 Permit Conditions:
Enbridge’s Line 21 MVLWB’s License Conditions – Comments Document reference: DRAFT Type B Water Licence MV2017L1-0002 Enbridge Pipelines (NW) Inc. – Industrial Use – Pipeline Replacement and Associated Activities
Part A: Implementation of “Indigenous Knowledge Consideration”
Comment: Section 1d states: “In conducting its activities under this Licence, the Licensee shall make best efforts to consider and incorporate any scientific and Traditional Knowledge that is made available to the Licensee. “
Recommendation: To ensure that this condition is met: the Liidlii Kue First Nation requests that a Condition for Approval include:
1) A Dehcho First Nations Line 21 Advisory Committee 2) Dehcho First Nations environmental monitoring during construction and follow up inspections post-construction
Part B Section 12. Engagement Plan
Comment: Enbridge’s Engagement Plan, in its current state, is too general and requires information sought by the Decho First Nations
Recommendation: Enbridge must develop an updated communications and engagement plan in close collaboration with Sambaa K’e First Nation, Dehcho First Nations, Lidlii Kue First Nation, Pedzeh Ki First Nation, and other affected First Nations, individuals, or groups. This communication and engagement plan should be updated annually in collaboration with all parties to continually address concerns.
As part of the communications and engagement plan, annual reports, engagement records and any communications reports and other records with respect to monitoring, maintenance and malfunction should be proactively shared directly with affected First Nations and also should be posted to a publicly accessible registry.
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To help ensure that engagement with First Nations is meaningful, Enbridge is requested to maintain records that chronologically track complaints by Aboriginal groups and landowners, including municipal and regional governments, relating to the Project beginning with the commencement of construction and continuing through operations. The complaint tracking records should include: a) the date the complaint was received; b) the form in which the complaint was received (for example, telephone, mail, email, or other communication methods that may evolve over time); c) the date and summary of all subsequent telephone calls, visits, correspondence, site monitoring/inspections, follow-up reports and other related documentation; d) updated contact information for all persons involved in the complaint; e) a detailed description of the complaint; and f) any further actions to be taken or an explanation why no further action is required.
Also required in an engagement plan is information on pipeline releases and spills along the Line 21 pipeline, included information on the kilometer post location and the cause of each release and spill.
PART D: Conditions to applying water use
Recommendation: Enbridge provides schedule and report of water usage to Dehcho First Nations
PART E: Conditions applying to construction
Recommendation: Dehcho First Nation Community environmental monitoring program needs to be in place during construction; in addition to follow up water quantity and quality testing post-construction.
PART F: Conditions Applying to Modifications
Recommendation: Additional requirement to be added to modification of structure process: Dehcho First Nations are to be notified regarding any structural modification to the Project.
PART G: Conditions Applying to Water and Waste Management
Recommendations:
i) Water and waste management plans need to be submitted to Dehcho First Nations for review and approval prior to Project activity commencement;
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ii) Water and waste management reports need to be submitted to Dehcho First Nations for review by way of the Dehcho First Nations’ approved Communications and Engagement Plan (See Part B Section 12 above) iii) Conditions regarding water and waste management, including soil and erosion control management plans cited in the NEB Conditions for Approval and advanced by Dehcho First Nations must be applied to these Conditions
PART H: CONDITIONS APPLYING TO AQUATIC EFFECTS MONITORING PROGRAM
Water Quality Monitoring Program:
Enbridge must provide a detailed Water Quality Monitoring (WQM) plan that will be in place prior any work activities. The WQM must outline details of monitoring procedures including the types equipment will be used to monitor turbidity during drilling activities (i.e. Sonde deployment or hand held Lamotte Sampling), rationale of WQM efforts, frequency of sampling, geographic extent of sample sites based on the zone of influence and frac-out/spill response contingency plans. The WQM needs to outline the methods used and degree of sampling effort during drilling activities. Given the sensitivity of fish habitat at site and the potential for frac-outs to occur during spawning periods. WQM monitors need to be working in shifts to ensure monitoring is occurring during all HDD activities (i.e., should the HDD be a continuous 24-hour drill) Deploy turbidity monitoring devices (i.e., sondes) along the thalweg at each transsect so that turbidity is continuously monitored and graphed, outside of the point samples being collected by the crew. Provide details within the proposed Turbidity Monitoring Plan on what “contingency measures” will be implemented should an advertent return is suspected. Provide detailed plan for how frac out will be mitigated and managed in terms of response from the drilling team, suspension of drilling activities until issue is resolved, and what cleanup activities will be carried out if drilling mud is released and discovered in the river, along the banks and/or in wetlands.
Barge Schedules and Interactions with Aquatics: provide barge schedule and landing procedures as well as details of the type of barges being used to understand the extent of interaction with the aquatic environment and provide further information on mitigation measures regarding barge landing sites.
Follow up Reporting on Impacts: Submit an annual report on issues and impacts to aquatic environment as a result of any malfunction, accident or leak during construction and post construction.
Part I: Conditions Applying to Spill Contingency Planning
Emergency Response Plans for Construction: Enbridge must work with affected Dehcho First Nations to
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ensure that regionally relevant, coordinated emergency response systems are in place and practiced. This will include, but may not be limited to:
routine, recurring full-scale emergency response exercises along the Project, with the involvement of First Nations partners and local ground monitors. The objective of the emergency response exercises must be to test the effectiveness and adequacy of the response system. There should be a collaborative project to debrief the response exercise. development of a region-specific Emergency Procedures Manual; training of both community and company personnel; details of a communications systems; coordination of emergency response activities with responders, mutual aid partners and other agencies; details of response equipment – location, accessibility and details on who is authorized and/or trained to use the equipment.
Recommendation: Enbridge must file with the Board, upon approval, an Emergency Response Plan that is specific to the Project and that will be implemented during the construction phase of the Project. The plan must include spill contingency measures that Enbridge will employ in response to accidental spills attributable to construction activities, 24-hour medical evacuation, fire response, and security.
Recommendation: Dehcho First Nations must be involved in pre-construction and construction monitoring for the project, which would include, but is not limited to,: a. Notifying Dehcho First Nation monitors and representatives if a frac-out occurs. b. Following clean up procedures immediately. c. Recording any wildlife activity in the immediate vicinity.
Recommendation: The Dehcho K’ehodi program to monitor the Enbridge pipeline must be integrated into the permafrost monitoring and leak detection investigation program
Recommendation: The Dehcho K’ehodi program must allow for a ground-presence for visual observations and measurement of depth to pipeline.
PART J: Conditions Applying to Closure and Reclamation
Recommendation: Closure and Reclamation Plans and Schedule Notifications must be submitted to Dehcho First Nations for review
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Enbridge’s Line 21 MVLWB’s Permit Conditions – Comments
Document Reference: Conditions Annexed to and Forming Part of Land Use Permit # MV2017P0013
MVWLB Conditions for approval must align with/comply with Conditions for approval put forward by Dehcho First Nations in the NEB process (attached, A85045-1 DFN Final Approval conditions 19July2017 - A5S3Y0)
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DEHCHO FIRST NATIONS Box 89, Fort Simpson, N.W.T. X0E 0N0 Tel: (867) 695-2355/2610 Fax: (867) 695-2038 E-mail: [email protected]
Enbridge Line 21 Pipeline Segment Replacement Project
Approval Conditions provided by Dehcho First Nations July 19, 2017
Submitted to: Secretary of the Board, National Energy Board (NEB)
Re: Hearing Order MH-001-2017 and File No. OF-Fac-Oil-E101-2017-07 01
1. Leave to open
1.1. Enbridge’s position Enbridge Pipelines asserts that any potential adverse environmental or socio-economic effects are not likely significant and are outweighed by the benefits of the project. These will not be a cause for public concern… Enbridge submits that the application is routine in nature from an engineering perspective and therefore this project should be exempt from the leave to open requirements of Section 47 of the NEB Act because the Project poses minimal risk to the public, to the environment and to the integrity of the Enbridge system.
1.2. DFN’s Concern Dehcho First Nations (DFN) has concerns regarding the overall integrity of the Line 21 pipeline and that it may have shifted while the pipeline was shutdown. Enbridge shutdown Line 21 in November 2016 and it will likely not be up and running until August/September 2018. DFN’s understanding of the Line 21 Pipeline is that the crude oil is typically cooled to - 5°C to 8-9°C to mitigate and reduce permafrost degradation along the pipeline right-of-way.
Given that the Line 21 pipeline has not had cooled crude oil running through the pipe since November 2016, DFN has concerns that Line 21 may have shifted considerably during this shut-down.
1.3. DFN’s Recommendations for Approval Conditions We request that Enbridge be required to file for a “leave to open”.
Given DFN’s outstanding concerns regarding the integrity of the Line 21 pipelines; DFN also requests that DFN and other parties can participate in the NEB “Leave to Open” process and file information requests and approval conditions regarding pipeline integrity for the entirety of the Line 21 pipeline.
2. Pipelines Valves Upstream and Downstream of the Mackenzie River
2.1. DFN’s Concerns DFN is of the view that sectionalizing valves are an important facility component that enhances the safe operation of a pipeline. When located appropriately, and maintained and operated properly, such valves can significantly reduce volumes of product released in the event of a spill. LKFN has demonstrated in their written evidence in this proceeding that there is significant traditional land use on the Mackenzie River which overlays Enbridge’s Line 21 Replacement Segment. DFN has concerns over whether Mackenzie River including drinking water intakes, is protected adequately by Enbridge’s Line 21 Replacement Segment.
2.2. DFN’s current understanding of pipeline valve DFN received information from Enbridge on July 18, 2017 in response to our motion dated July 13, 2017. We are still reviewing the information from Enbridge and we will provide an update to the NEB when we fully evaluate the information received from Enbridge.
2.3. DFN’s Recommendations for Approval Conditions DFN will provide an update on suggested Approval Conditions related to pipeline valves on either side of the Mackenzie River once DFN has completed our review.
3. Leak Detection and Spill Response 3.1. DFN’s Concerns DFN, Liidlii Kue First Nation (LKFN), Pehdzeh Ki First Nation (PKFN) and Samba’a Ke First Nation (SKFN) have expressed concerns that Enbridge’s leak detection is inadequate, citing previous incidents on Enbridge’s pipeline system as evidence of this. In addition, some previous leaks along the Line 21 have gone undetected by Enbridge’s leak detection system pose significant environmental risks.
DFN expects pipeline companies to operate in a systematic, comprehensive and proactive manner that anticipates and manages risks. The NEB also expects that companies have fully-developed and implemented management systems and protection programs that provide for continuous improvement. A carefully designed and well-implemented management system supports a strong culture of safety and is fundamental to keeping people safe and protecting the environment. Such management systems must also take account of the roles and involvement of third parties, where appropriate, and are further described below.
3.2. Enbridge’s Monitoring Enbridge has stated that it employs a comprehensive, multi-layered approach to leak detection on Line 21, including the replacement segment of pipe that is the subject of this application, and is committed to the continuous improvement of its leak detection strategy. This strategy now encompasses six primary leak detection methods, each with a different focus and featuring differing technology, resources and timing.
These methods include: Controller Monitoring, Visual Surveillance, Automated Pressure Deviation, Computational Pipeline Monitoring, Schedule Line Balance Calculations and Rupture Detection. Using a risk-based approach and considering other mitigations in place, Enbridge periodically utilizes other complementary leak detection technologies such as acoustic inline inspection tools, which are designed to confirm the integrity of the pipeline the detection of the very small leaks through unique acoustic signatures.
Used together, these methods provide an overlapping and comprehensive leak detection capabilities under all operating scenarios.
The timing of detection is dependent upon the conditions such as leak size, location, soil climate, depth of burial, product, pipeline pressure/rates and others.
3.3. DFN’s position on leak detection monitoring DFN received information from Enbridge on July 18, 2017 in response to our motion dated July 13, 2017. Enbridge did not fully respond to our motion (July 13, 2017). Enbridge provided information from the nearest valves upstream and downstream of the Line 21 replacement segment (i.e. Mackenzie River). DFN requested information from the nearest pump stations upstream and downstream of the Line 21 Replacement Segment (i.e. Mackenzie River).
3.3.1. We reiterate our request that Enbridge provide the following information from the nearest pump stations upstream and downstream of the Line 21 Replacement Segment (i.e. Mackenzie River). DFN is requesting this information (beyond the 2.5 km of the Line 21 Replacement Segment) to determine the mainline drain and pipeline operating hydraulics should the Line 21 Replacement Segment fail while in operation:
i. An elevation profile. ii. A line indicating the maximum operating pressure. iii. The hydraulic profile and state the design flow rate for this hydraulic profile. iv. On the elevation profile indicate the location of mainline valves and their type of operation (manual, remote or automatic). v. Provide DFN with information regarding the valves that would be used to shut down the pipeline in the event of a spill in the Mackenzie River including data on the frequency of valve inspection and valve testing. vi. Provide DFN with information to confirm whether Line 21 is operated liquid full or nonliquid full (i.e., slack line).
3.4. DFN’s Approval Conditions
3.4.1. DFN will provide an update on suggested Approval Conditions related to leak detection and spill response on either side of the Mackenzie River once DFN has completed our review. 3.4.2. In the interim, DFN suggests the following approval conditions below.
3.4.3. DFN requests that Enbridge file with the Board, at least 60 days prior to
applying for Leave to Open, a spill response plan and emergency response plan for the Line 21 replacement project (Mackenzie River) that includes both the construction and operation phases. We request that Enbridge outline the major spill response equipment staging area locations to deal with a release in the Mackenzie River, and the anticipated time for such equipment to reach this site if ever needed.
3.4.4. DFN requests that Enbridge file with the Board, at least 60 days prior to applying for Leave to Open, the Leak Detection System (LDS) manual for the Line 21 Replacement Segment.
3.4.5. DFN also requests that Enbridge file with the Board, the Leak Detection System test results within 6 months of commencing operations.
3.4.6. DFN requests that the above plans are subject for review by DFN and local communities, with reasonable timelines.
4 Drilling fluids and HDD Blow-out 4.1 DFN’s Concerns
The pipeline operator should be able to commit that HDD drilling fluids will not contain hazardous material such as fracking fluids that would be hazardous. HDDs are usually performed using bentonite clays and water, which only can be problematic in areas where sediments from a blow out during HDD would be an issue. From an aquatic environment perspective, if a blowout did occur, the resulting drilling mud spill may impact water sources, fish and fish habitat. The drilling mud has the potential to negatively impact spawning and rearing habitat, reduce prey availability, suffocate invertebrate communities, suffocate fish or reduce fish populations.
DFN remains concerned about the potential risks associated with a blowout of drilling fluids.
4.2 DFN’s Approval Condition • Enbridge commits to only using bentonite clay and water as a drilling fluid. • Provide a risk assessment of a blowout during the HDD drill. The most commonly employed method to risk assessment is the application of modeling software to assess maximum allowable fluid pressure against the expected drilling fluid pressure. • Enbridge must work with DFN, LKFN, SKFN and PKFN on a protocol for immediate notification of any spills or releases of possible contaminants or drilling fluids into or near the Mackenzie River.
5 HDD Failure and Abandonment
5.1 DFN’s Concerns
HDD drills have been known to fail and be abandoned by the operator. Recently, TransCanada Pipelines Ltd (TransCanada) attempted an HDD drill as part of the Vaughan Mainline Expansion Project. This HDD drill was under the Humber River; the HDD encountered complications during operations due to sandy soil conditions and seasonal high groundwater levels. This resulted in drilling fluid flush-backs, sinkhole development along the HDD alignment and an unrecoverable reamer abandoned in the borehole. The HDD failed and needed to be abandoned. TransCanada has been forced to develop an Abandonment and Sinkhole Plan to deal with the failed HDD and sinkholes and will also have to put a plan in place for an open-trench pipeline.
5.2 DFN’s Approval Condition
Enbridge prepare an HDD contingency plan to prepare for the event that the proposed HDD cannot be successfully completed.
6 Impacts of the Work camps 6.1 DFN’s Concerns
Currently, Enbridge is proposing a 120-person work camp at the HDD drill site, approximately 9 km outside of Fort Simpson for a four-month period. Enbridge has also indicated that some employees will be staying to Fort Simpson. However, Enbridge has provided almost no detail on how they will attempt to minimize the impact of the temporary workers on the Village of Fort Simpson.
The impact of temporary workers on small, remote Northern Communities has been documented but not extensively (The Firelight Group with Lake Babine Nation and Nak’azd Whut’en (2017) and W. Beamish Consulting Ltd. & Heartwood Solutions Consulting (2013)). The studies documented negative impacts of transient worker camps on local communities. These impacts included an increase in domestic violence and violence against women; especially Indigenous women and girls within the host communities of these camps. In addition, the two studies indicated that traditional economies (I.e. hunting, gathering, trapping) are impacted by the influx of non-Indigenous workers who hunt on the land during their downtime in the work camps.
6.2 DFN’s Approval Conditions Provide a detailed and comprehensive plan of how to mitigate potential social impacts due to the 120- person work camp on the community of Fort Simpson and potential mitigation measures in collaboration with local communities (including SKDB and LKFN).
Enbridge should be required to work with LKFN and DFN to hire as many local workers as possible.
7 Pipeline Decommissioning
7.1 DFN’s Approval Conditions A monitoring program should be established and implemented during decommissioning and should continue at least five (5) years after decommissioning and abandonment is complete.
8 Dehcho K’ehodi Program 8.1 DFN’s Concerns
There is precedent for community based monitoring programs related to resource development projects within the Northwest Territories (Dominion Diamond’s Jay Project, Ekati Mine). The purpose of these programs is to “participate in site activities designed to determine whether mine activities have effects on the environment, wildlife, or their habitats, and if so, how to mitigate these effects.” Active participation in these programs provides an opportunity for communities and participants to provide feedback on how the Ekati Environment Department conducts its monitoring programs at the Ekati Mine.
The goal of the monitoring program is to ensure that the mitigation measures proposed by the proponent are fully and effectively implemented, and significant adverse impacts on the environment are mitigated, throughout all phases of the development.
This program was initiated in 2014 through a series of three regional workshops. These workshops established the framework that guides the Dehcho K’ehodi program. Three principles were identified as the foundation under the framework: the stewardship program is to (1) to be guided by the Dene Laws & Values; (2) to support & strengthen the Dene language; and (3) to enable youth-elder mentorships, so future generations of Dene can learn their culture and how to be on the land.
Most recently the Dehcho K’ehodi Stewardship Program has expanded to include a community based Dehcho Guardians program. The Guardians program is being expanded by collaborating with the Dehcho-AAROM community-based water-monitoring program. The role the community water monitors under Dehcho-AAROM is being expanded to enable them to be the Dehcho Guardians. There are currently 1-2 Guardians in every Dehcho community assisting in monitoring and community-directed land based programs in the region.
8.2 DFN’s Approval Conditions Enbridge should be required to fund community-based environmental monitoring initiatives and establish binding agreements with affect First Nations for meaningful, independent monitoring. This Agreement should include the provision of funding by Enbridge for First Nations communities to develop independent monitoring, including ground surveillance, spill response training, and youth involvement. Funding and support must be sufficient to ensure that the pipeline right-of-way can be independently monitored by local people in a consistent, sustained way during both winter and summer. Funding and support must also include the development of a community-based spill response system. Funding, training and equipment should be delivered through the existing Dehcho K’ehodi program, which Enbridge is required to fund for the duration of Line 21’s life.
The Dehcho K’ehodi program to monitor the Enbridge pipeline can be integrated into the permafrost monitoring / investigation program to address concerns regarding permafrost degradation, leak detection and spill response.
The Dehcho K’ehodi program would allow for a ground-presence for visual observations and measurement of depth to pipeline.
12 9 Permafrost 9.1 DFN’s concerns DFN has concerns about the impacts of permafrost degradation on the Line 21 pipeline. Permafrost in the Dehcho Region has decreased from 70 percent cover to 43 percent cover from 1943 to 2008; a 61 percent decrease in permafrost in 65 years (Quinton et al., 2011). There is evidence that permafrost thaw is further accelerated in areas that been disturbed. Extensive ground thermal monitoring on the Norman Wells Pipeline south of Fort Simpson, NWT, has shown several metres of vertical permafrost thaw, a complete loss of thin permafrost, ponding, and ground subsidence of more than 2 m (Smith et al 2008). Permafrost thaw can lead to issues with pipeline integrity. In permafrost terrain, a slope that may be stable in frozen, thawed or unfrozen terrain may not be stable during the period of thawing. This is because as the frozen soils thaw, pore-water pressures are generated that may destabilize the slope. Permafrost–pipeline interactions may include thaw settlement, frost heave, upheaval buckling, buoyancy, slope instability, and others. Many of these issues develop many years after construction in response to changes in permafrost (Oswell 2011).
9.2 DFN’s Approval Conditions Upon approval, Enbridge must develop and provide a monitoring program designed to increase understanding of the permafrost regime along the pipeline as well as any changes to that regime over time.
13 10 Community Concerns
DFN supports any community concerns, project mitigation and additional Approval Conditions brought to the NEB’s attention for Enbridge’s Line 21 Replacement Project by any Dehcho Communities or community members.
14 11 Future Engagement with DFN and Dehcho Communities
DFN Approval Conditions
DFN recommends that the NEB require Enbridge to accept the following approval conditions:
• Provision of data in digital formats readily acceptable.
• Any additional plans that are required and submitted by Enbridge are reviewed by communities with reasonable timelines.
• Enbridge notifications to the NEB are cc’d to community environmental staff (Leave to open, etc)
• Safety/testing notifications within 30 days of occurrence provided to community environmental staff, with a plain language summary.
• Spills that are reported to the spill hotline are also provided to DFN and Dehcho Communities.
• Annual Report provided to the communities reviewing the past years operations – identifying what went well, future actions and potential concerns.
• Commitments Tracking Table for Line 21
15 Enbridge Line 21 Pipeline Segment Replacement Project
Hearing Order MH-001-2017 and File No. OF-Fac-Oil-E101-2017-07 01
LKFN NEB Evidence Submission, June 28, 2017
Table 1 Line 21 EA Interdisciplinary Review Issues and Enbridge Response Evaluation
Comment Issue Area ESA Reference Issue: preamble & rationale Information Request (IR) Enbridge Response Response Adequacy: IR # Addressed/Partially Addressed/Not Addressed? 1 Socio-economics, Land EA Part 1, Section Unclear, what and where new Describe in detail and provide maps No new access roads will be Addressed Use 1. P.1 access roads will be built for new access roads that will be constructed as part of the Project. constructed to complete the Access to the South Work Site will HHD/line replacement? be via the Mackenzie Highway. Access to the North Work Site will be via a temporary shoofly between the Mackenzie River and the existing right-of- way, which was used during the original construction of Line 21. Please refer to the Overview Map included in Enbridge’s update to its Application filed May 5, 2017, which outlines access routes [National Energy Board (“NEB”) Filing ID
A83288-5].
2 Socio-economics, Land EA Part 1. Section The Scope of the Study area (s) Explicitly include the Łíídlįį Kų́ę ́ The study areas as defined in Not addressed. Use 2.1 Project does not specifically refer to the First Nation as being a part of the Section 2.1 of the Environmental Location. P.10 Łíídlįį Kų́ę ́ (LKFN) as a Local and Regional Study area, as and Socio- Economic Assessment LKFN not consulted or community and/or the LKFN’s well as other Dehcho First Nations accommodated in respect (“ESA”) [NEB Filing ID: A82026-4] traditional territories that with asserted territories in the of the ESA. LKFN has encompass the Project study area. are based on guidance provided in proposed additional areas (including the regional the NEB Filing Manual (NEB 2016) studies to address gaps in study area) for sizing study areas. traditional land use.
Comment Issue Area ESA Reference Issue: preamble & rationale Information Request (IR) Enbridge Response Response Adequacy: IR # Addressed/Partially Addressed/Not Addressed? Enbridge does not intend to revise the ESA; however, as noted in the Aboriginal and Stakeholder Engagement Summary [NEB Filing ID: A84206-2], Enbridge will continue to engage with the LKFN, as well as other Dehcho First Nations, in open and transparent dialogue concerning the Project and will continue to offer opportunities to engage for the purposes of exchanging information regarding the Project and responding to interests and concerns that may arise. 3 General – EA Scope EA Part 1 Section Enbridge states “while the ESA Clarify what this statement means: As there are no new operation and Not addressed. 2.2. Project addresses the operation and “while the ESA addresses the maintenance activities planned as Phases page 11 maintenance phases of the operation and maintenance phases part of the Project, and the focus LKFN disagrees with the of the project, minimal new characterization of the project, minimal new of the ESA is on potential effects information is required because no Project. information is required because new significant operation or during the construction phase. no new significant operation or maintenance activities are Once the replacement segment is LKFN has proposed maintenance activities are planned.” in operation, Enbridge will follow additional information planned.” It is unclear, what the existing operations and requirements and this statement means or maintenance procedures for the mitigation measures. implies. existing Line 21 pipeline.
4 General – EA Scope EA Part 1 Section Enbridge states: “Similarly, plans The project cannot advance The plan for decommissioning of Partially addressed. 2.2. Project for abandonment of the without the decommissioning and the replacement segment of Phases page 11 replacement segment of the abandonment of the replacement pipeline for the Project is provided segment of the pipeline. Provide in Enbridge’s section 45.1 pipeline are anticipated to plans for the decommissioning and Decommissioning Application to follow existing plans for the Line abandonment of the replacement the NEB filed on March 10, 2017 21 pipeline, so assessment of segment of pipeline for the project. [NEB Filing ID A82026-3]. abandonment for the replaced Comment Issue Area ESA Reference Issue: preamble & rationale Information Request (IR) Enbridge Response Response Adequacy: IR # Addressed/Partially Addressed/Not Addressed? segment of pipeline is beyond the scope of this ESA, and no new information is required regarding the abandonment of the replacement segment of pipeline for the project. LKFN disagrees with this.
5 Socio-economics: land EA Part 1 Section It is unknown, whether land Provide details of the construction The Project is anticipated to NOT ADDRESSED use, social, health and 2.3 Project based camps or workforce requirements (i.e., involve a small temporary wellbeing components and “accommodation barges” may number of personnel needed), First workforce (approximately 120 The potential impacts of Nation hiring plans and this “small temporary execution page be stationed at a floating dock” people). Enbridge, in collaboration commitments, and description of workforce” may be 11-12; Section will be used to house the which accommodation method with its general contractor, is significant on community 2.3.2. construction workforce. It is also (land or barge) will be used. committed to hiring local health and well-being, Construction unclear, whether there will be Indigenous people as part of the particularly with regard to Activities Page 15 40, 80 or 120+ personnel as workforce required for this short- indigenous women and different numbers are term project. Enbridge confirms girls. used/could be interpreted that a floating barge camp is no differently in the NEB EA. There longer planned to be used. Two are different numbers used in worker camps accommodating Mackenzie Valley Land and approximately 40 (North) and 80 Water Board (“MVLWB”) (South) workers each are planned application filings. to be used to temporarily house Understanding these workforce workers during Project numbers is critical, as is knowing construction. the percentage of workforce that will be sourced from the LKFN and other Dehcho First Nations in relation to being sourced from outside the Region. Comment Issue Area ESA Reference Issue: preamble & rationale Information Request (IR) Enbridge Response Response Adequacy: IR # Addressed/Partially Addressed/Not Addressed? 6 Socio-economics, EA Part 1 Section In addition to personnel staying Provide information on number of The Project is anticipated to NOT ADDRESSED human occupancy and 2.3.2 in camps, the EA states “Some personnel that will be staying in involve a small temporary land use Construction Enbridge personnel may be Fort Simpson; a timeline for their workforce (approximately 120 The potential impacts of accommodation period; and what this “small temporary Activities. Pages accommodated in Fort Simpson, people). Enbridge anticipates that their travel route/method is to the workforce” may be 13-15 with travel between the south Project site. construction activities will take significant on community Project Footprint and Fort place from approximately mid- health and well-being,
Simpson as required’. May to the end of September. particularly with regard to indigenous women and Most of the Project workforce, girls. workers from the general contractor, will stay in work camps. Only the South Work Site Inspection staff and Enbridge construction staff will be staying in Fort Simpson.
Workers staying in Fort Simpson will travel to and from the Town via pick-up trucks along the Mackenzie highway, taking the ferry across the Liard River then traveling the access road to the worksite. 7 EA General: EA Part 1 Section “Stakeholders” are the only Add a separate section called Enbridge’s response to NEB IR No. NOT ADDRESSED. Consultation 3.1 Stakeholder consultation group listed as a Engagement and Consultation with 2.1.a provides a summary of consultation sub-section under the Aboriginal/ Indigenous Peoples and consultation with Indigenous This response is dismissive describe engagement activities and of Indigenous title and ‘Regulatory and Agency groups since January 12, 2017 the outcomes of engagement (i.e. rights. Enbridge has failed Consultation Section”. issues and interests identified, [NEB Filing ID: A84022]. to meet their own policy Dene/Indigenous / Aboriginal Enbridge responses) from each commitments for To date, Enbridge has provided a Peoples are not stakeholders, group within this section. consultation, much less they are Constitutional Rights variety of Project information to satisfy the deep and Holders as per Section 35 of the potentially impacted Indigenous meaningful consultation Constitution. It is concerning peoples, including: original Project and accommodation Comment Issue Area ESA Reference Issue: preamble & rationale Information Request (IR) Enbridge Response Response Adequacy: IR # Addressed/Partially Addressed/Not Addressed? that there is no description of notification letter, Project updates requirements set out in the Indigenous territory within and related NEB brochures. the law. which the Projects takes place, nor which Indigenous groups Please refer to Enbridge’s specifically, have been engaged response to NEB IR No 2.1.b and and consulted, and how. 2.1.c.
Enbridge’s response to NEB IR No. 2.1.a outlines Enbridge's engagement with LKFN and other Indigenous groups about the Project since January 12, 2017. Since May 24, 2017, Enbridge has exchanged three emails and one letter with LKFN and one email with another potentially affected Indigenous group. Enbridge has offered to meet with LKFN and all other potentially affected Indigenous groups to discuss the Project and any potential impacts, and has provided aerial tours of the Project site when requested.
Enbridge has been engaging with LKFN and other potentially impacted Indigenous communities since Line 21 was proactively shut down in November 2016.
8 Socio-economics, EA Part 1 Section The EA states that “…there is no Provide discussion and assessment The Project is anticipated to NOT ADDRESSED. social and wellbeing, 4.1.2 Human anticipated project interaction of social and socio-economic involve a small temporary human occupancy and Occupancy and with human occupancy and use (human) related project workforce (approximately 120 See LKFN Comment Issue Area ESA Reference Issue: preamble & rationale Information Request (IR) Enbridge Response Response Adequacy: IR # Addressed/Partially Addressed/Not Addressed? land use Use Page 26 in the village [of Fort Simpson]. component interactions with social, people). Enbridge is seeking to recommendations on LKFN disagrees, given that the wellbeing, and human occupancy source as many local labour social and cultural well- EA also states that personnel and use as it relates to human resources as possible. Enbridge being. presence, socio-economic activities will be staying in; and traveling will use work camps to and travel to and from the camp to and from, Fort Simpson (in sites and Fort Simpson. accommodate most of its Project addition to the camps). personnel to mitigate any impacts to the community of Fort Simpson. Enbridge has acknowledged stakeholder concerns relating to social and cultural well-being associated with work camps and has committed to engagement with Sambaa K’e First Nation (“SKFN”), LKFN and the Village of Fort Simpson to address these concerns. Additionally, all Project personnel will receive Indigenous awareness training as part of the Project orientation prior to starting work to reduce potential for negative social and cultural well-being effects.
9 EA Part 1 Section The EA refers to information Provide more information to Information included in the ESA NOT ADDRESSED. There is 4.15 Traditional received during ongoing identify specific land and resource pertaining to land and resource not enough Land and consultations related to the use, not only in the Project Area, use was based on preliminary acknowledgement of land project, that “… there is small- Resource Use. but the LSA and RSA. Define “small consultation available at the time use and access scale trapping for small Page 28 mammals, and some hunting scale”; how many traplines; what is of writing, including the information within the conducted within the project trapped and when? The same Traditional Knowledge Study ESA to determine area.” Yet there are no details pertains to hunting; the completed by Northern potential effects and regarding these critical rights identification and detailed EnviroSearch (Tulita) Ltd on behalf mitigations in effective based land and resource description of trapping, hunting, of Enbridge in 2013. The and culturally appropriate Comment Issue Area ESA Reference Issue: preamble & rationale Information Request (IR) Enbridge Response Response Adequacy: IR # Addressed/Partially Addressed/Not Addressed? activities, nor where or how the fishing, gathering, camping and Traditional Knowledge Study, in way. A new and current Project’s construction activities trails in the Project area, LSA and which LKFN was a participant, was traditional knowledge and (physical and human related) RSA; and including downstream undertaken in support of land use study and other will interact and affect these from the project area is required; Enbridge’s 2013 application to measures are required to land and resource uses. The occasional meeting is not and an assessment of effects on renew its operational land use adequately assess effects sufficient to establish a these land and resources uses permit (MV2013P0011) with the on LKFN rights and meaningful baseline upon which and/or culturally sensitive sites is Mackenzie Valley Land and Water interests. potential effects can be required to understand potential Board. No new information has assessed properly. Impacts to Dene Rights. been provided by the LKFN during consultation meetings regarding the project and, to date, only one trapline which is occasionally accessed off the right-of-way has been identified to Enbridge as being potentially affected by the Project. The Project area is limited and impacts to traditional land and resource use are anticipated to be short term and temporary.
As noted in the Aboriginal and Stakeholder Engagement Summary [NEB Filing ID: A84206- 2], Enbridge will continue to engage with the LKFN, as well as other Dehcho First Nations, in open and transparent dialogue concerning the Project and will continue to offer opportunities to engage for the purposes of exchanging information regarding the Project and responding to Comment Issue Area ESA Reference Issue: preamble & rationale Information Request (IR) Enbridge Response Response Adequacy: IR # Addressed/Partially Addressed/Not Addressed? interests and concerns that may arise, including concerns related to traditional land and resource use.
10 Traditional Land and EA Part 1 Section The EA states that the 1) Provide more details Please refer to Response to IR No. NOT ADDRESSED. There is Resource Use, Social 4.15 Traditional (construction), operation of the regarding Dehcho land and 9. not enough and Cultural Land and replacement segment of resource use including acknowledgement of land Wellbeing, Socio- trapping, hunting, fishing, use and access Resource Use. pipeline and decommissioning Water consumption in the RSA economics. camping and water information within the Page 27 of the replaced segment of includes the Village of Fort consumption in the RSA Simpson and a single private ESA to determine pipeline is not anticipated to 2) Provide human health risk potential effects and dwelling (cabin). The Village of interact with these (land) uses. assessment regarding risks mitigations in effective Without details regarding the of HDD activities, frac-outs Fort Simpson uses surface water and culturally appropriate range and scope of Dehcho First and spills. from the Mackenzie River that is way. A new and current Nations’ land and resource uses treated at a local facility prior to traditional knowledge and land use study and other in the RSA, this conclusion consumption. The private dwelling measures are required to cannot be made. It is also purchases potable water for consumption. adequately assess effects unclear, what risks of HDD on LKFN rights and activities, frac-outs and/or a An assessment of human health interests. decommissioned pipeline are to related to horizontal directional these activities and human drill health, including impacts to country foods and impacts to (“HDD”) activities has been potable water supplies? completed (see ESA, Table 5.3 “Identification of Potential Residual Effects” [NEB Filing ID: A82026-4]). Residual effects are not anticipated after mitigation.
Drilling fluid will be a water- bentonite mixture and no hazardous additives are planned Comment Issue Area ESA Reference Issue: preamble & rationale Information Request (IR) Enbridge Response Response Adequacy: IR # Addressed/Partially Addressed/Not Addressed? to be used.
Enbridge will take measures to reduce the risk of spills during construction, for example, using secondary containment for fuel storage. The Project Environmental Protection Plan (“EPP”) includes a Spill Contingency Plan, which includes spill prevention measures, spill control plans, reporting,
response, and clean-up requirements and procedures. 11 Social and cultural EA Part 1 Section The EA states that the project is 1) Provide more information Please refer to Response to IR No. NOT ADDRESSED wellbeing 4.16 Social and anticipated to have minimal regarding social, economic, 9. Cultural interactions with social and cultural and ecological values Enbridge does not Wellbeing. Page cultural well-being (and has from Dehcho and specifically Enbridge will continue to engage recognize the rights and 28 dropped this as an effect LKFN First Nations to understand with the LKFN, as well as other interests of the LKFN. This Dehcho First Nations, in open and response dismisses the altogether in the EA); the LKFN impacts to land and resource use disagrees. The construction and associated socio-economic transparent dialogue concerning need to include more period for this work is long subsistence economy impacts to the Project and will continue to relevant information into offer opportunities to engage for the ESA. Based on the enough especially if it occurs in LKFN members. the purposes of exchanging extensive Project area data sensitive time periods for land- 2) Provide assessment of use, that it may have an effect. potential adverse impacts to information regarding the Project collected through the LKFN members because of and responding to interests and 1996-97 LKFN Land Use barriers and challenges to access concerns that may arise. and Occupancy Study, a and/or travel on ROW because of new and current traditional Access to and along most of the knowledge and land use project construction, operations existing Line 21 right-of-way will activities. study is required to remain open during construction; adequately assess effects 3) Describe, assess and however, public access to Comment Issue Area ESA Reference Issue: preamble & rationale Information Request (IR) Enbridge Response Response Adequacy: IR # Addressed/Partially Addressed/Not Addressed? discuss mitigations for potential construction areas will be on LKFN rights and impacts to the safety aspects of restricted for safety reasons. This interests. Even a cursory community wellbeing because of will be a temporary impact only. review of the Project in construction for temporary relation to the 1996-97 transient workers; outsiders to Please refer to Response to IR No. LKFN Land Use and the area in terms of cross-cultural 8. Occupancy Study would interactions, racism and Enbridge, its prime contractors reveal numerous examples increased pressure on LKFN and subcontractors, will conduct of Project impacts to land resources through outsider all work in compliance with and resource use and transient employees hunting Enbridge’s LP/MP Safety Manual associated socio-economic and/or fishing. as well as all relevant health, subsistence economy 4) Discuss health and safety safety and environment impacts to LKFN members, aspects of wellbeing from a legislation/regulations. and adverse impacts to public and worker safety aspect; LKFN members because of what are the risks to humans barriers and challenges to from construction activities and access and/or travel on what measures are in place to ROW because of project. A avoid, mitigate and / or manage new and current traditional these risks? knowledge and land use study would provide an evidence-based foundation for mitigations for potential impacts to health and safety aspects of wellbeing and risks from construction activities. Such a study would also support mitigations related to the safety aspects of community wellbeing because of construction for Comment Issue Area ESA Reference Issue: preamble & rationale Information Request (IR) Enbridge Response Response Adequacy: IR # Addressed/Partially Addressed/Not Addressed? temporary transient workers; outsiders to the area in terms of cross- cultural interactions, racism and increased pressure on LKFN resources through outsider transient employees hunting and/or fishing.
12 Economics and EA Section 4, 5 The EA does not provide details Provide descriptions of economic Given that this is a replacement of NOT ADDRESSED. employment regarding how the Region or impacts from royalties and tax a small segment of an existing Dehcho First Nations will benefit revenues to upper and lower tier pipeline, and not a new pipeline, The LKFN is a government. from this Project economically governments, and any other the tax and royalty impacts from No description is provided of royalties and tax compensation to governments. the Project would be insignificant. Accordingly, Enbridge has not revenues to the LKFN. Line conducted a detailed economic 21 is dependent on the analysis. Project for continued operations for which Enbridge will pay royalties and taxes to upper and lower tier Crown governments. The economic impacts of Line 21 royalties and taxes lost, should the Project not proceed, should be documented.
Infrastructure and EA Part 1 Section The EA does not describe nor 1) Identify infrastructure and No potable water supplies are NOT ADDRESSED. services; social and 4, 5 assess potential effects on nearby services that may expected to be impacted by the Land users may use other cultural wellbeing; infrastructure and services; nor be impacted by frac-outs Project. The Village of Fort sources of water; ESA does land use health/social wellbeing from Comment Issue Area ESA Reference Issue: preamble & rationale Information Request (IR) Enbridge Response Response Adequacy: IR # Addressed/Partially Addressed/Not Addressed? HDD activities, frac-outs or and/or spills, including Simpson relies on surface water not ground-truth this re: spills. potable water supplies and from the Mackenzie River for land and resource use emergency response consumption. The water intake for section; not acceptable to services the Village is located not involve local residents 2) Describe, assess and approximately 9 km downstream and responders in the provide mitigation plans for of the existing Line 21 pipeline review of these plans. The risks to human health crossing location. ESA must describe and because of frac-outs assess potential effects on An inadvertent return could result infrastructure and services; in a temporary increase in health/social wellbeing suspended sediment from HDD activities, frac- concentration and turbidity. outs or spills. Drilling fluid will be a water- bentonite mixture and no hazardous additives are planned to be used.
Enbridge has stand-alone capacity to respond to an inadvertent drilling fluid return and/or spills; accordingly, local emergency response services are not expected to be required. Engagement with local emergency response services is ongoing as part of Enbridge’s stakeholder engagement program.
Please refer to Response to IR No. 10.2. 13 Infrastructure and EA Part 1 Section The EA does not consider effects Provide information on the Enbridge is involved in ongoing Partially addressed. Services; social and 4 and Section 5 nor Project interactions from potential impacts from ferry discussions with the local ferry Requires demonstration of cultural wellbeing ferry operations such as health Comment Issue Area ESA Reference Issue: preamble & rationale Information Request (IR) Enbridge Response Response Adequacy: IR # Addressed/Partially Addressed/Not Addressed? (health and safety); and safety; disturbances to operations as these impacts pertain operator as part of its stakeholder consultation efforts; economics travel routes and fishing; nor to human health and safety; engagement program in order to economic benefit economic effects from goods impacts to LKFN fishing activities; reduce potential impacts to commitments with LKFN. and service provision and/or any potential for economic human health and safety and requirements from the project such as ferry operations and in benefits by way of Aboriginal fishing activities. Please refer to town services. business procurement and Enbridge’s response to LKFN IR employment commitments (i.e. No. 5 for details pertaining to potential benefits and/or economic benefits for Indigenous accommodation measures to offset communities. negative impacts to lands and resource use) Enbridge will continue to engage with Indigenous communities and stakeholders in open and transparent dialogue concerning the Project and will continue to offer opportunities to engage for the purposes of exchanging information regarding the Project and responding to interests and concerns that may arise, including concerns
related to impacts to LKFN fishing activities.
14 Infrastructure and EA Part 1 Section The EA does not discuss the 1) Describe emergency Emergency response services Partially addressed. Services; social and 4 and Section 5 inter-connected value response services and include the Fort Simpson Requires demonstration of cultural wellbeing components and effect on these emergency response Volunteer Fire Department, the how Proponent is providing (health and safety); such as: links between readiness of Fort Simpson. Fort Simpson Hospital and the Fort capacity supports and a economics emergency services and emergency readiness 2) Describe emergency Simpson Detachment of the Royal lifecycle agreement for on- (infrastructure and services) and response plan and how the Canadian Mounted Police. going LKFN involvement in implications to social and Proponent and its emergency preparedness In the event of an incident, Comment Issue Area ESA Reference Issue: preamble & rationale Information Request (IR) Enbridge Response Response Adequacy: IR # Addressed/Partially Addressed/Not Addressed? cultural wellbeing and health contractors will work with Enbridge will follow its Integrated and response. (i.e. impact of frac-outs and local authorities and local Contingency Plan (“ICP”), available spills) community members in at www.enbridge.com. case of an accident, malfunction and/or spill. Emergency preparedness, response and recovery 3) Provide information on current emergency procedures, as well as the requirements for training, are preparedness, response, recovery and prevention outlined in Enbridge's ICP. Please and mitigation plans that refer Response to IR No. 14.2 include LKFN; as well as above. It is standard practice for capacity building to Enbridge to invite LKFN to attend develop emergency all equipment deployment readiness of the exercises and to include community. Nogha contractors for training purposes. 15 Employment and EA Part 1 Section There is a lack of baseline 1) Describe basic elements of the Major industries within the Partially addressed. Does Economy 4.19 Employment information regarding current current regional economic setting Dehcho region include tourism, not address procurement and Economy economic context of the Region, – main economic sectors; forestry, trapping and handicrafts. IR. Requires demonstration Fort Simpson and LKFN with (page 29) and employment; education levels Within the Dehcho region the of commitment to LKFN which to present a comparative Section 5 EA /relative effects assessment of etc. Labour Market Information hiring and procurement. for this valued component. 2) Confirm number of jobs and Resource: Northwest Territories personnel required; as well as Labour Needs and Forecast wages; Assessment (The Conference 3) Describe approach and specific Board of Canada 2016) measures that will be taken to determined that 43.5% of the total source jobs and contract services population has not completed locally. high school, 28.2% has completed 4) Describe the type of goods and college or a trade program and services that will be required for 16.4 has completed high school. Comment Issue Area ESA Reference Issue: preamble & rationale Information Request (IR) Enbridge Response Response Adequacy: IR # Addressed/Partially Addressed/Not Addressed? the Project and where these will The top employment sectors for be sourced from; describe what the Northwest Territories were measures and commitments the found to be public administration, Proponent is taking to source trade and health care and social goods and services locally, and services. specifically to Surrounding Dehcho First Nations. The Project is anticipated to involve a small temporary workforce (approximately 120 people). Further details related to number of jobs and wages will be known closer to construction.
Enbridge is seeking to source as many local non-specialized labour resources as practical. The HDD is a highly specialized technical construction process. Opportunities for local employment will be focused on labourers, environmental monitors, wildlife monitors and archeological or other qualified Indigenous representatives. Please refer to Response to IR No. 5.
Further details related to the types goods and services that will be sourced
locally will be known closer to construction. Please refer to Comment Issue Area ESA Reference Issue: preamble & rationale Information Request (IR) Enbridge Response Response Adequacy: IR # Addressed/Partially Addressed/Not Addressed? Response to No. 5.
16 Social and Cultural EA Part 1 Section There is potential for project Describe existing regional capacity The Enbridge LP/MP Safety Partially addressed. Wellbeing, health, 4.20 Accidents construction and operations to to respond to an accident or Manual and the ICP identify the Proponent dismisses land use, and have accidents or malfunctions malfunction, including a spill or training requirements of staff to importance/need for LKFN infrastructure and Malfunctions; that interact with the human-related job site accident; ensure appropriate response member involvement in services Section 5, Section 6. environment in the project. components of geographic and capability. The ICP identifies emergency preparedness regional specific Emergency regional specific equipment and response. Proponent This statement, without Response Plan (EMP) and locations and the Field Emergency must demonstrate it is acknowledgement of description of regional response Response Plan includes regional providing capacity supports emergency response plans, prevention and/or potential for readiness capacity. specific information including and a lifecycle agreement impacts on human and Emergency Services information for on-going LKFN ecological health is Describe how regional capacity to and information regarding services involvement in emergency unacceptable. respond to an accident or companies and contractors. preparedness and malfunction may be impacted by a response. A detailed project spill, accident, malfunction Regional capacity to respond to an aquatic assessment is accident or malfunction will not be or frac-out. required to support plans impacted by a spill, accident, for appropriate emergency malfunction or inadvertent return management, mitigation related to the Project, since a and reclamation measures Project-specific Emergency in the event of a frac-out. Response Plan will be utilized for all HDD related construction activities. 17 Human Occupancy EA Part 1 Section This table states that Project Table 5.2 states project Enbridge confirms that interaction Partially Addressed. This 5. Table 5.2. Page construction activities are not construction activities are not with human occupancy and response acknowledges 33 expected to affect human expected to affect human resource use is anticipated during and confirms potential occupancy and resource use. occupancy and resource use. New the construction of the Project impacts. This issue must be New infrastructure resulting infrastructure resulting from only; no interaction is anticipated further examined in the from project activities will be project activities will be placed during the operation of the hearing. placed below ground level only, below ground level only, and Project. and therefore, no interaction therefore, no interaction with with human occupancy and human occupancy and resource Comment Issue Area ESA Reference Issue: preamble & rationale Information Request (IR) Enbridge Response Response Adequacy: IR # Addressed/Partially Addressed/Not Addressed? resource use is anticipated use is anticipated during during operations. “ project operations. However, the project interaction table states that interaction table states that ‘Yes’ ‘yes’ there will be a Project there will be a project interaction interaction yet the text yet the text contradicts this. contradicts this. Correct this statement to acknowledge the potential effect on Human Occupancy during construction.
18 Social and cultural EA Part 1 Section Proponent’s conclusion that Describe the inter-dependent Please refer to Response to IR No. NOT ADDRESSED. wellbeing, land use 5. Table 5.2. Page there will not be any elements of social and cultural 8. Enbridge will continue to IR has been dismissed by 34 interactions from the Project on wellbeing that are relevant to the engage with the LKFN and other the Proponent; the issue social and cultural wellbeing is Dehcho First nations and, in , the and request concerned the Dehcho First Nations in open and incorrect due to lack of LKFN as a baseline. omission of adequate understanding of inter- transparent dialogue concerning assessment of potential dependent elements of ‘social Describe both the physical and the Project and will continue to effects and in turn, the and cultural wellbeing’. “No – human/social Project effect offer opportunities to engage for omission of corresponding the Project Footprint is in a mechanisms and interactions with the purposes of exchanging effect mitigation, remote area, with the nearest social and cultural wellbeing, as this information regarding the Project management and community (Fort Simpson) value component is inherently and responding to interests and monitoring commitments. located more than 9 km from connected to ecological health, To ‘engage and dialogue’ is concerns that may arise, including the areas of the active land and resource use; health and not sufficient. Recognition construction activity. Social and safety and livelihoods (access to concerns related to social and of how these values relate cultural well-being are not income through either the wage cultural well- to the Dene and LKFN Dene anticipated to interact with the economy and/or subsistence rights, and meaningful construction or operations of economies). being. commitment to address the project. “ the risks to these rights through the EA process is what is required. 19 Social and cultural EA Part 1 Section LKFN argues that there is more 1) Discuss and assess effect of Enbridge is planning to use a local NOT ADDRESSED. wellbeing and land 5 Table 5.2. Page than one effect of a vehicle barge traffic and presence barge company and will Requires demonstration of use 35 access delay to one residence on marine traffic and coordinate barge traffic to reduce information sharing of along the ROW for occupancy resource use areas (i.e. barge schedule, impacts to fishing and other and use VC. fishing and other marine operations, EPP updates Comment Issue Area ESA Reference Issue: preamble & rationale Information Request (IR) Enbridge Response Response Adequacy: IR # Addressed/Partially Addressed/Not Addressed? traffic/use) as well as effect marine traffic. Barge traffic will be with the LKFN; as well as The Mitigation is “Implement of project related land and concentrated at the beginning and commitment and support measures on the ROW to allow human disturbance to end of the Project during for LKFN involvement in multiple vehicles to pass in Dehcho /LKFN members environmental and cultural mobilization and demobilization opposite directions in the that. monitoring under a life of affected areas of the ROW.” activities. Following mobilization, project agreement with the This is not sufficient. 2) Provide information barge activity will be limited to the LKFN. regarding personnel area between Fort Simpson and staying in Fort Simpson and the Project area. This mitigation measure does in camps or floating barge. not address other effects Please refer to Response to IR No. related to occupancy and use, 3) Assess and provide 5. as these potential effects have mitigation/management plans for these variables Enbridge will update the Project not been identified nor explored and effects. EPP prior to construction, (see IRs above) including mitigation measures related to barge traffic.
20 Traditional Land and EA Part 1 Section Table states that “HDD activities 1) Provide detailed NOT ADDRESSED. Resource Use 5 Table 5.2 and construction activities may information on which Simply repeating what has temporarily affect traditional traditional land and Please refer to Enbridge’s been said in the EA is not a land use in the project area.“ resource uses as well as response to NEB IR No. 2.3 [NEB sufficient or respectful Without details, this is culturally significant sites Filing ID: A84022]. response. insufficient. (cultural areas of value related to land use and Please refer to Enbridge’s Acknowledgement and occupancy by DFN and response to NEB IR No. 2.3 [NEB documentation of land and LKFN members) may be Filing ID: A84022]. resource use and plans for affected in the project use as well as inherent area. Proponent loops reviewer back to rights related to the lands March 17th letter that supposedly is required; along with 2) Clarify and describe how addresses similar IRs. The end involvement with LKFN to such use is expected to be result is simply a repeating of address these potential affected exactly? Provide exactly what is said in the EA – effects. explicit information that there are ‘assumed regarding what measures traditional activities and some Based on the extensive are being taken to prevent, small-scale trapping”… and that Project area data collected Comment Issue Area ESA Reference Issue: preamble & rationale Information Request (IR) Enbridge Response Response Adequacy: IR # Addressed/Partially Addressed/Not Addressed? minimize and/or since the pipeline has been there through the 1996-97 LKFN accommodations for for 30 years, they are aware of Land Use and Occupancy effects on hunting, activities there. Study, a new and current trapping, camping, fishing, traditional knowledge and travel and/or cultural sites land use study is required of importance here in this to adequately assess EA. effects on LKFN rights and interests.
21 Traditional Land and EA Part 1 Section No assessment conducted on Conduct a human health risk Please refer to Response to IR No. Partially addressed. Resource Use; social 5 Table 5.2 human health risks from HDD assessment and provide risk 10.2. Requires commitment to and cultural wellbeing activities, frac-outs and/or spills management plan for impacts to (refers to HHERA for HDD monitoring and LKFN human health from HDD activities, conducted and no residual effects involvement in monitoring frac-outs and /or spills in relation anticipated after mitigation) during construction to traditional land and resources through a life-of-project use and social and cultural agreement with the LKFN. wellbeing Based on the extensive Project area data collected through the 1996-97 LKFN Land Use and Occupancy Study, a new and current traditional knowledge and land use study is required to adequately assess effects on LKFN rights and interests. 22 Infrastructure and EA Part 1 Section Lack of information regarding 1) Describe how LKFN has been Please refer to Responses to IR No. Partially addressed. services; employment 5 Table 5.2 effects to infrastructure and consulted regarding economic 5 and No. 7. Requires LKFN verification and economics services; as well as economics benefits related to this Project, of business and and employment. local hiring approaches and In addition, Enbridge has been employment procurement. And describe consulting with Nogha Enterprises contracts/agreements results of such consultation. about the Project since January 9, under a life-of-project 2) Provide more information on agreement. 2017. During the borehole drilling other infrastructure and service changes from housing in Fort program from January through Comment Issue Area ESA Reference Issue: preamble & rationale Information Request (IR) Enbridge Response Response Adequacy: IR # Addressed/Partially Addressed/Not Addressed? Simpson; spending and travel March, 12 of the 80 people 3) Provide more information on involved were from Nogha. On what specific economic February 24, Enbridge provided a benefits will be experienced by list of services required for the LKFN 4) Provide information regarding Project. training and capacity building As outlined in Table 5.2 (Adobe that will be provided to bolster potential economic benefits page 32) of the ESA [NEB Filing ID: through employment and A82026-4], the Project Footprint is Indigenous procurement - located in a remote area, with Fort goods and service contracting. Simpson located more than 9 km from the areas of construction activity. Project construction activities are not expected to affect human occupancy and resource use. There will be a North Camp and South Camp, and sewage and grey water will be disposed of in accordance with the applicable Mackenzie Valley Land and Water Board (“MVLWB”) land use permit and water license conditions that will be obtained prior to camp mobilization. A limited number of Enbridge will personnel will be accommodated in Fort Simpson, with travel between the south Project Footprint and Fort Simpson as required.
Please refer to Response to IR No. Comment Issue Area ESA Reference Issue: preamble & rationale Information Request (IR) Enbridge Response Response Adequacy: IR # Addressed/Partially Addressed/Not Addressed? 22.2.
Please refer to Response to IR No. 22.2. 23 General EA Practice / ESA Section 5 The effects assessment provides Identify Valued-Ecosystem The ESA identifies the elements of NOT ADDRESSED Emergency Effects limited information regarding Components (VECs) considered concern that have the potential to Management Assessment and how unplanned incidents such for potential frac-outs and how interact with the project and Proponent has dismissed as frac-outs will be addressed by impacts to these VECs will be the information request – General determined what residual effects Enbridge – this includes but is assessed, monitored, and which pertains specifically Comment not limited to how impacts to mitigated in relation to potential would remain following mitigation to VCs being put at risk due specific valued-ecosystem frac-outs. measures. to accidents and components will be assessed, malfunctions including monitored, and mitigated. A post construction monitoring frac-outs. program has been included in the EPP and will identify any Based on the extensive deficiencies related to soil, Project area data collected vegetation or watercourses that through the 1996-97 LKFN require further remediation Land Use and Occupancy Study, a new and current efforts. traditional knowledge and land use study is required to adequately assess effects on LKFN rights and interests. 24 General EA Practice / ESA Section 5 The effects assessment provides Provide plans for assessing the risk The Horizontal Directional Drill NOT ADDRESSED Emergency Effects limited information regarding of frac-outs prior to drilling, Feasibility Report [NEB Filing ID: Management how unplanned incidents such including modeling, assessment The Proponent has Assessment and A83286] and the Geotechnical as frac-outs will be predicted methodology, variables and downplayed the potential General and assessed by Enbridge – this indicators. Report [NEB Filing ID: A82415] for frac-outs and dismissed Comment includes but is not limited to the assessed areas and formations the need to provide proof provision of a plan for predicting where inadvertent returns of of prevention and and assessing the risk of frac- drilling fluid may occur. These mitigation measures to outs, including the identification address and manage this reports conclude that the risk of of a methodology and software risk in a regionally specific to conduct this assessment. an inadvertent return would be way that involves engaging unlikely based on the proposed LKFN. Comment Issue Area ESA Reference Issue: preamble & rationale Information Request (IR) Enbridge Response Response Adequacy: IR # Addressed/Partially Addressed/Not Addressed? drill path. A detailed aquatic assessment is required to support plans for appropriate emergency management, mitigation and reclamation measures in the event of a frac-out. 25 Wildlife and Wildlife ESA 4.8/24 and The assessment provides details 1) Describe why LKFNs Please refer to Enbridge’s NOT ADDRESSED Habitat/Vegetation General regarding traditional knowledge extensive traditional Response to NEB IR No. 2.3 [NEB and Wetlands Comment (TK) of archaeological resources ecological knowledge was Filing ID: A84022]. Requires a life-of-project and to assess landforms for not considered in the agreement with provisions heritage resource potential (ESA baseline assessment to As noted in the Aboriginal and for an ongoing consultation Appendix B/48), but it does not determine the presence Stakeholder Engagement forum and process provide evidence that TK was and project impacts on SAR Summary [NEB Filing ID: A84206], between LKFN and used to assess wildlife and species? Enbridge will continue to engage Enbridge, where issues vegetation baselines and with the LKFN, as well as other about the Project can be potential environmental effects 2) Describe how Enbridge will Dehcho First Nations, in open and brought forward, of the project. incorporate LKFN transparent dialogue concerning discussed, and addressed knowledge on key wildlife the Project and will continue to throughout construction Rather, to determine the areas in habitats for species offer opportunities to engage for and operations of the potential presence of Species at of indigenous importance the purposes of exchanging Project, including the Risk (SAR), a review of the NWT and SAR that overlap with information regarding the Project provision of capacity SAR online database was used the PF and LSA. Describe and responding to interests and funding to LKFN to support to identify species listed under how this knowledge concerns that may arise, including this process. Schedule 1 of the federal SARA impacts Project decisions. incorporating LKFN knowledge on and under the NWT List of SAR key wildlife areas. The first deliverable of such for the Species at Risk (NWT) an arrangement could be Act. the resolution of issues raised in this report, and The assessment requires details the development of a list of regarding the incorporation of environmental and traditional knowledge (TK) and socioeconomic traditional ecological knowledge commitments to LKFN (TEK) for SAR species and about the project which species of Indigenous should be considered Comment Issue Area ESA Reference Issue: preamble & rationale Information Request (IR) Enbridge Response Response Adequacy: IR # Addressed/Partially Addressed/Not Addressed? importance. before construction commences. 26 Wildlife ESA Table 5.2/34 Accidents and malfunctions Identify what the potential project Potential impacts of accidents and NOT ADDRESSED. Habitat/Traditional were identified to be an impacts are of accidents and malfunctions on wildlife and Land Use element interaction during malfunctions on wildlife, wildlife wildlife habitat may include LKFN environment and operations, but the effects habitat and consequently on LKFN temporary habitat displacement cultural monitors must be assessment does not carry or traditional land use and interests. or avoidance of habitat use, a employed and involved consider the potential change to habitat function, or during all phases of the consequences of an accident on mortality. Project under a life-of- wildlife and consequently project agreement with effects on traditional land use in provisions for an ongoing the effects assessment. consultation forum and process between LKFN, Enbridge and regulatory agencies.
Based on the extensive Project area data collected through the 1996-97 LKFN Land Use and Occupancy Study, a new and current traditional knowledge and land use study is required to adequately assess effects on LKFN rights and interests in respect of wildlife.
27 Vegetation/Traditional ESA Table 5.3/35 During construction, ongoing Identify what types of vegetation A draft Project EPP has been filed Addressed. Land Use vegetation control measures are control measures will be utilized with the NEB as part of Enbridge’s being proposed, however it is during construction and operation response to NEB Ruling No. 1 [NEB unclear what types (manual, phases for the project, recognizing Filing ID: A83286]. mechanical and/or chemical) of that different methods (i.e., During construction, Enbridge will vegetation control applications chemical applications, clearing) follow the Project EPP, which will will be used. may have considerable impacts on include measures to prevent, Comment Issue Area ESA Reference Issue: preamble & rationale Information Request (IR) Enbridge Response Response Adequacy: IR # Addressed/Partially Addressed/Not Addressed? country foods. manage and control the spread of weeds and invasive vegetation, including the following: Equipment must arrive on site in a clean condition and free of visible debris, soil and vegetation. Any equipment arriving in a dirty condition will be refused entry to the site. Wherever possible, work will occur on top of matting to reduce the potential to spread invasive vegetation by limiting the exposure of equipment to soil. Work will be limited to the extent required in areas known to contain invasive vegetation. Species-appropriate mitigation will be implemented to control the existing invasive vegetation on site, i.e., mowing. Mechanical control measures (i.e., mowing) are also planned to control invasive vegetation as required. No chemical applications are planned at this time. Following construction, Enbridge will implement a Post-Construction Environmental Monitoring (“PCEM”) program, which includes monitoring for weeds and invasive vegetation. Any issues observed will be tracked and addressed through the PCEM program. Comment Issue Area ESA Reference Issue: preamble & rationale Information Request (IR) Enbridge Response Response Adequacy: IR # Addressed/Partially Addressed/Not Addressed? 28 Vegetation ESA Table 5.3/35 Construction vehicles and Identify what mitigation and Please refer to Response to IR No. Addressed. equipment have been identified monitoring measures will be 27. as having the potential to applied to control the occurrence introduce and/or spread and spread of invasive and non- invasive and non-native species native vegetation species during all yet it is not clear what phases of the project. mitigation measures will be applied to monitor and manage invasive species occurrence and extent. 29 Wildlife and Wildlife ESA Table 5.3/35 Vegetation clearing will be Identify what considerations, if any, Determination of construction NOT ADDRESSED. Habitat conducted prior to restricted were used to determine timing periods is based primarily activity periods for migratory construction timing periods, on the weather and LKFN contends that birds (May 1 – Aug 15) as per construction times of day, and the accessibility to the North Work construction under frozen regulations, but restricted traditional land use interests, aside Site. The preferred construction ground conditions can activity periods do not seem to from regulatory requirements. period is late spring to early fall. significantly reduce impact be considered to protect Describe how TKFN knowledge and to soils and runoff, since traditionally important wildlife interests impacts Project soil is prone to compaction, species and traditional land use construction period, and rutting and admixing interests. construction times of day decisions. during drilling and pipeline construction. To minimize impacts to the environment during construction and on traditional land use interests, winter construction should be seriously considered by Enbridge. This would further protect ungulate calving periods as well as restricted activity periods for migratory birds.
LKFN requires clear communication and Comment Issue Area ESA Reference Issue: preamble & rationale Information Request (IR) Enbridge Response Response Adequacy: IR # Addressed/Partially Addressed/Not Addressed? notification (minimum 21 days) of the finalized construction scheduling be provided to LKFN for distribution to their community, with follow-up communication on a weekly basis for any scheduling changes.
There is ongoing concern by LKFN construction activity may disturbed or displaced wildlife, with significant effect on LKFN harvesting activities. These impacts must be avoided or compensated through a life-of-project agreement. 30 Wetlands ESA Table 5.3/35 A no clearing vegetation buffer Identify why a more conservation The Project EPP includes buffers Addressed. & Table 5.3/37 at watercourses and wetland approach to watercourse for work activities near boundaries of 10m ‘if possible’ protection and LKFN interests, such watercourses and wetlands. Although recommended has been identified as a as a minimum 30m buffer from the Enbridge will update the Project that minimum 30m buffer mitigation measure. Ordinary High Water (OHW) mark EPP prior to construction, from the Ordinary High from wetlands, watercourses and including adopting a minimum 30 Water (OHW) mark be Manners Creek are not being m wetland and watercourse maintained. considered. Also identify under buffer. It should be noted that what scenarios the watercourse planned watercourse crossings protection buffers, such as no and accesses have been previously clearing vegetation buffers at cleared and Enbridge’s intention is watercourses and wetland to maintain the existing buffers boundaries, would not be along the existing pipeline right- ‘possible’. of-way. Watercourse protection buffers may not be observed in the unlikely event of accidents or Comment Issue Area ESA Reference Issue: preamble & rationale Information Request (IR) Enbridge Response Response Adequacy: IR # Addressed/Partially Addressed/Not Addressed? malfunctions. 31 Wildlife and Wildlife ESA Table 5.3/38 Project construction activities Identify under what circumstances Clearing activities may be required NOT ADDRESSED. Habitat will be avoided ‘where practical’ timing restrictions will not be during the restricted activity to accommodate SAR timing followed to accommodate SAR period (“RAP”) or nesting period LKFN environment and restrictions. restrictions. for birds including select species at cultural monitors must be risk (“SAR”) birds. Mitigation employed and involved measures to reduce the impacts of during all phases of the the Project on nesting birds and Project under a life-of- other wildlife have been project agreement with incorporated into the Project EPP provisions for an ongoing (i.e., conducting bird nest sweeps, consultation forum and minimizing areas to be cleared, process between LKFN, restricting clearing to areas Enbridge and regulatory adjacent to the existing Line 21 agencies in respect of SAR. right-of-way, and using mats for access roads and work areas). Wildlife surveys will be completed prior to starting work. The results of the surveys will be used to modify the proposed work and clearing areas to avoid impacts to wildlife. Further measures to prevent impacts to SAR are included in the Project EPP. 32 Wildlife and Wildlife ESA 2.1/10 & The Local Study Area (LSA) is Given the known occurrence of Critical habitat for Woodland Addressed. Habitat 4.4/23 & Table comprised of the Project Woodland Caribou in the Project Caribou (Boreal population) 4.2/25 Footprint (PF) and extends area, please explain why a 5km LSA includes the area within the outward 1.5 km, where it is was not considered in the effects species range listed in the expected that project activities assessment? Recovery Strategy, and overlaps are anticipated to have the with the Project. most potential interactions with The Project footprint will be and/or effects on the minimized and efforts will be environment, yet there is a made to avoid and/or minimize considerable body of literature loss of biophysical attributes listed supporting that Woodland in the Recovery Strategy. The Comment Issue Area ESA Reference Issue: preamble & rationale Information Request (IR) Enbridge Response Response Adequacy: IR # Addressed/Partially Addressed/Not Addressed? Caribou are sensitive to Government of the Northwest disturbance up to 5 km Territories (“GNWT”) previously (Mahoney et al. 1991; Smith et commented as part of the MVLWB al. 2000; Dyer et al. 2001; Land Use Permit and Water Cronin et al. 1998). Licence Applications process that the project represents a minimal risk for this species. 33 Vegetation and Decommissioning An Environmental Protection Provide all Environmental A draft Project EPP has been filed NOT ADDRESSED. Wetlands/Wildlife and Application Plan (EPP) is proposed and will Protection Plan(s) and related with the NEB as part of Enbridge’s Wildlife Habitat Section 45.1/6 be applicable to both monitoring measures, so that LKFN response to NEB Ruling No. 1 [NEB LKFN environment and replacement and can assess their adequacy in Filing ID: A83286-21]. Enbridge will cultural monitors must be decommissioning activates for protecting their indigenous rights, update the Project EPP prior to employed and involved the Project, however it has not traditional land use and interests. construction. during all phases of the been made available to LKFN or Project under a life-of- through the Registry for our project agreement with review. More information on provisions for an ongoing the basis of protection and consultation forum and reclamation measures should be process between LKFN, provided, so their validity can be Enbridge and regulatory reviewed. agencies.
34 Traditional Land Section 58 Access to construction areas will Describe consultation with LKFN for There are no anticipated impacts Partially addressed. Use/Wildlife Applications / 19 be restricted for safety reasons hunter and trapper compensation to fishing and no long term during Project activities. because of restricted access to impacts are expected to wildlife Enbridge should provide traditional harvesting areas have and hunting practices. Public consultation with LKFN, been identified. Identify outcomes access to construction areas will and appropriate and mitigation from this be restricted for safety reasons accommodations through a consultation. during Project activities. Enbridge life-of project agreement, will follow best practices and including compensation implement appropriate mitigation for hunter and trapper to minimize impacts to wildlife displacement. during the construction period. During consultation about the Project, LKFN has not raised the issue of compensation for hunters and trappers as a result of Comment Issue Area ESA Reference Issue: preamble & rationale Information Request (IR) Enbridge Response Response Adequacy: IR # Addressed/Partially Addressed/Not Addressed? restricted access to traditional harvesting areas. However, Enbridge has spoken to a resident local to the Project area and a member of the LKFN, and has agreed to provide LKFN with salvage timber from the clearing of the right-of-way. Enbridge will continue to engage with the LKFN, as well as other Dehcho First Nations, in open and transparent dialogue concerning the Project and will continue to offer opportunities to engage for the purposes of exchanging information regarding the Project and responding to interests and concerns that may arise, including any impacts resulting from restricted access to traditional harvesting areas. 35 Reporting Summary of A process for reporting Please identify how LKFN Enbridge confirms that LKFN and NOT ADDRESSED. Environmental Aboriginal environmental incidents will be community members will be all other affected communities will Incidents Concerns (1 page included in the EPP, and notified in the event of be contacted in the event of a spill LKFN environment and provided to environmental environmental incidents such as which is reportable to the Spill cultural monitors must be only) monitors and contractors prior pipeline spills or malfunctions. Line. Contact information for local employed and involved to work commencement, communities is provided directly during all phases of the however it is not clear what by each community during Project under a life-of- notification will be provided to Enbridge’s project agreement with LKFN community members. public awareness visits. provisions for an ongoing consultation forum and process between LKFN, Enbridge and regulatory agencies.
Comment Issue Area ESA Reference Issue: preamble & rationale Information Request (IR) Enbridge Response Response Adequacy: IR # Addressed/Partially Addressed/Not Addressed? 36 Vegetation and ESA 7.0/43 Construction and post- Identify opportunities for LKFN Please refer to Response to IR No. NOT ADDRESSED. Wetlands/Wildlife and construction monitoring members to monitor traditionally 5., which states: Wildlife Habitat program details provided in the important wildlife and vegetation LKFN environment and EA Application are cursory. The species in the LAA to determine The Project is anticipated to cultural monitors must be only post-construction project effects on their population involve a small temporary employed and involved monitoring identified in the ESA and distribution in the region. workforce (approximately 120 during all phases of the is to monitor the success of people). Enbridge, in collaboration Project under a life-of- stabilization measures at Identify opportunities within the with its general contractor, is project agreement with disturbed sites. proposed EPP for data collection by committed to hiring local provisions for an ongoing LKFN monitors to verify the Indigenous people as part of the consultation forum and It is not clear how LKFN effectiveness of site-specific workforce required for this short process between LKFN, community members can assess mitigation practices on traditionally term project. Enbridge confirms Enbridge and regulatory whether their rights and important wildlife and vegetation that a floating barge camp is no agencies. interests may be impacted by species. longer planned to be used. Two project activities and during worker camps accommodating operations without proper on- approximately 40 (North) and 80 going monitoring plans such as (South) workers each are planned biodiversity, wildlife or related to be used to temporarily house ‘Guardian’ monitoring workers during Project programs. construction. 37 Wetlands/Traditional ESA 4.6/23 Impacts to local wetlands Provide and/or identify the location No site-specific wetland Partially Addressed. Land Use around HDD and Staging Areas of site-specific wetland assessments are planned, as no and other newly built project assessments, if any, planned for wetlands occur within the Project Given that 3 peatlands infrastructure are expected to each HDD and Staging area within Footprint. exist within the PF, and the occur, but information about LKFN territory. Three small peatland wetlands potential for frac-out(s), it these impacts- and mitigation occur along the existing pipeline is imperative that a measures to address them- is Identify how the hydrology and right-of-way; however, impacts to detailed wetland not provided in the assessment. wetland conditions are expected to these wetlands are not anticipated assessment be conducted be impacted surrounding the HDD as a result of HDD activities, as prior to drilling activities, locations, and how wetland they are located outside of the to provide a baseline for associated species of interest to Project Footprint. these habitat types, and to LKFN for hunting, trapping and identify the extent of cultural use may be affected by damage if a frac-out were such impacts. to occur, in addition to appropriate emergency response, mitigation and Comment Issue Area ESA Reference Issue: preamble & rationale Information Request (IR) Enbridge Response Response Adequacy: IR # Addressed/Partially Addressed/Not Addressed? reclamation measures that are warranted.
LKFN environment and cultural monitors must be employed and involved during all phases of the Project under a life-of- project agreement with provisions for an ongoing consultation forum and process between LKFN, Enbridge and regulatory agencies.
38 Archaeology A82415-22 The report states, “However, in Provide information on what As part of the Project orientation NOT ADDRESSED. Attachment 21 - the unlikely event that an archaeological training prior to starting work, all LKFN environment and Revised archaeological site is discovered construction project workers must construction personnel will cultural monitors must be Archaeological during the Project, staff of the have to enable them to identify an receive training regarding employed and involved Overview PWNHC should be contact archaeological site. Furthermore, procedures to follow when during all phases of the Assessment - immediately.” The issue is that describe how LKFN archaeological heritage, cultural or Project under a life-of- A5K1C7, page 4 someone with no archaeological monitors will be involved during archaeological sites or artifacts project agreement with provisions for an ongoing training may not be able to construction, and what agreements have been identified or are identify features as having are in place to facilitate this consultation forum and suspected. archaeological value. It is involvement. process between LKFN, Enbridge and regulatory important and relevant to the Local First Nation Archaeological agencies. LKFN because there is potential or other qualified indigenous that an archaeological site could representatives will be used be missed. during the clearing phase of construction to help construction crews in the identification of heritage, cultural and/or Comment Issue Area ESA Reference Issue: preamble & rationale Information Request (IR) Enbridge Response Response Adequacy: IR # Addressed/Partially Addressed/Not Addressed? archaeological resources.
39 Archaeology A82415-22 The report states, “However, in What Standard Operating The Project EPP describes a stop NOT ADDRESSED. The Attachment 21 - the unlikely event that an Procedure (SOP) is in place if an work procedure to be Project EPP states that all archaeological site is discovered archaeological site is identified Revised implemented if any archaeology work will be stopped if, during the Project, staff of the during the Project, and how have Archaeological “…any artifacts or signs of PWNHC should be contact the LKFN been involved in artifacts or signs of Overview immediately.” The issue is that developing this SOP? archaeological artifacts are archaeological artifacts are Assessment - there may not be a Standard encountered, as recommended encountered.” This is A5K1C7, page 4 Operating Procedure (SOP) in in the Archaeological Overview inadequate protection. Full place to deal with the discovery and prior assessment in Assessment conducted for the of archaeological sites. It is advance of ground Project. important and relevant to the disturbance to identify and LKFN because if an secure archaeological sites archaeological site is identified, Local First Nation Archaeological and archaeological features they will want to know how the or other qualified indigenous is required. discovery will be handled. representatives will be used during the clearing phase of construction to help construction LKFN environment and crews in the identification of cultural monitors must be employed and involved heritage, cultural and/or during all phases of the archaeological resources. Project under a life-of- project agreement with provisions for an ongoing consultation forum and process between LKFN, Enbridge and regulatory agencies to protect cultural heritage.
40 Archaeology A82415-22 The report states, “However, in What Standard Operating The Project EPP outlines Partially addressed. The Attachment 21 - the unlikely event that an Procedure (SOP) is in place for procedures to follow when Project EPP contains no archaeological site is discovered addressing identified reference to a GNWT Lands Revised archaeological sites are during the Project, staff of the archaeological sites? Does the site inspector or any other Comment Issue Area ESA Reference Issue: preamble & rationale Information Request (IR) Enbridge Response Response Adequacy: IR # Addressed/Partially Addressed/Not Addressed? Archaeological PWNHC should be contact get assessed? Will the site be identified or suspected. If any inspector related to Overview immediately.” The issue is that if protected or excavated? How will archaeological sites are Heritage Resources, Sites an archaeological site is the LKFN be notified and included or artifacts. The EPP does Assessment - identified, the GNWT Lands identified, there may not be a in decision-making around such an not explain how the LKFN A5K1C7, page 4 SOP in place to address event? Inspector as well as the LKFN and will be included in decision- appropriate archaeological other local First Nation making if there is a measures. It is important and communities will be notified. discovery of a heritage site. relevant to the LKFN because if The EPP uses the acronym an archaeological site is – “EI”, but there is no identified, they will want to reference for what EI know how it will be protected or stands for. mitigated. LKFN environment and cultural monitors must be employed and involved during all phases of the Project under a life-of- project agreement with provisions for an ongoing consultation forum and process between LKFN, Enbridge and regulatory agencies.
41 Archaeology A82415-22 The report states, “…it is How will the recommendation that Ground disturbance will only This is inadequate Attachment 21 - recommended that the project the project avoid any ground occur in areas that have been protection. Full and prior avoid any ground disturbance disturbance outside the current Revised permitted by the authorities assessment in advance of outside the current ROW.” The ROW be maintained? Will there be Archaeological ground disturbance to issue is that there may not be qualified individuals on site with having jurisdiction. These ground Overview qualified individuals to ensure the responsibility of ensuring that disturbance areas will be staked identify and secure Assessment - that no ground disturbance will no ground disturbance will occur by professional surveyors. On- archaeological sites and A5K1C7, page 4 occur outside the current ROW. outside the current ROW? site inspectors will ensure that archaeological features is It is important and relevant to required. ground disturbance does not the LKFN because they will want to know how the responsibility Comment Issue Area ESA Reference Issue: preamble & rationale Information Request (IR) Enbridge Response Response Adequacy: IR # Addressed/Partially Addressed/Not Addressed? will be addressed. occur outside of those limits.
42 Archaeology A82415-22 The report states, “…it is What SOP is in place if there is Ground disturbance will only Addressed. Attachment 21 - recommended that the project inadvertent ground disturbance occur in areas that have been avoid any ground disturbance outside the current ROW, and how Revised permitted by the authorities outside the current ROW.” The have the LKFN been consulted on Archaeological issue is that there may not be this SOP? having jurisdiction. These ground Overview procedures in place to ensure disturbance areas will be staked Assessment - that no ground disturbance will by professional surveyors. On- A5K1C7, page 4 occur outside the current ROW. site inspectors will ensure that It is important and relevant to ground disturbance does not the LKFN because they will want to know how it will be handled. occur outside of those limits. In the unlikely event that ground disturbance occurs outside of the staked area, work will be stopped immediately and an investigation will occur.
43 Archaeology A82415-22 The report states, “…evidence How will evidence of Traditional Enbridge will engage with the Partially Addressed. Attachment 21 - of Traditional Land Use that may Land Use sites be identified prior to LKFN to discuss the potential for be impacted by the Project construction? Will there be Based on the extensive Revised completion of a Traditional Land should be reported to the specialists or knowledge holders Project area data collected Archaeological PWNHC and discussed with the involved prior to construction to Use Study. If undertaken, through the 1996-97 LKFN Overview community of Fort Simpson as identify evidence of Traditional Enbridge and the LKFN will Land Use and Occupancy Assessment - part of the ongoing consultation Land Use? How will this evidence assess the findings of the study Study, a new and current A5K1C7, page 4 prior to construction. The issue impact decisions on construction against the Project to determine traditional knowledge and is that there may not be activities? land use study is required if additional mitigation measures qualified specialists in place to to adequately assess identify evidence of Traditional are required. effects on LKFN rights and Land Use prior to construction. interests. It is important and relevant to the LKFN because they will want to know what specialists will be on site prior to construction to Comment Issue Area ESA Reference Issue: preamble & rationale Information Request (IR) Enbridge Response Response Adequacy: IR # Addressed/Partially Addressed/Not Addressed? identify Traditional Land Use sites. 44 Archaeology A82415-22 The report states, “…evidence What SOP is in place if evidence of Please refer to Enbridge’s Partially addressed. LKFN Attachment 21 - of Traditional Land Use that may Traditional Land Use is identified response to NEB IR No. 2.3.d environment and cultural Revised be impacted by the Project prior to construction, and how [NEB Filing ID: A84022]. monitors must be should be reported to the have the LKFN been consulted on employed and involved Archaeological PWNHC and discussed with the this SOP? during all phases of the Overview community of Fort Simpson as Project under a life-of- Assessment - part of the ongoing consultation project agreement with A5K1C7, page 4 prior to construction. The issue provisions for an ongoing is that there may not be a SOP consultation forum and in place if evidence of process between LKFN, Traditional Land Use is Enbridge and regulatory identified prior to construction. agencies to protect cultural It is important and relevant to heritage. the LKFN because they will want to know if a SOP is in place if evidence of Traditional Land Use is identified prior to construction. 45 Archaeology A82415-22 The Revised Archaeological In light of the sensitivity of The Archaeological Overview NOT ADDRESSED. Full and Attachment 21 - Overview Assessment is dated Traditional Land Use sites revealed Assessment conducted for the prior assessment in Revised 13 March 2017. The letter from in the LKFN letter of 27 March Project did not recommend an advance of ground Archaeological Chief Gerald Antoine of the 2017, it would be helpful to show disturbance to identify and Overview LKFN is dated 27 March 2017. the exact location of the previous Archaeological Impact Assessment - The issue is that the letter of 27 surveys in the vicinity of the project Assessment, based on the secure archaeological sites A5K1C7, page 4 March 2017 outlines heightened area. If these surveys do not limited potential of the Project and archaeological features and sensitivity to the project area. include the ROW between KP528 to impact significant previously is required. A82288-1 The Revised Archaeological and KP540, will the project include unrecorded prehistoric sites and LKFN environment and A82081 Enbridge Overview Assessment was a new archaeological survey to fill because the remaining cultural monitors must be Letter - A5J8J4 completed two weeks before in these gaps? Has a recent survey the letter. It is important and of Traditional Land Use sites been disturbance will occur in the employed and involved relevant to the LKFN because conducted in the project area, and previously disturbed right-of during all phases of the Project under a life-of- they will want to ensure that all if so, how are the specific results way. areas have been surveyed. reflected in project plans? project agreement with provisions for an ongoing Comment Issue Area ESA Reference Issue: preamble & rationale Information Request (IR) Enbridge Response Response Adequacy: IR # Addressed/Partially Addressed/Not Addressed? consultation forum and process between LKFN, Enbridge and regulatory agencies to protect cultural heritage.
46 Fish and Fish Habitat Section 2.3.1; Mobilization and Site Enbridge plans to mobilize to site Enbridge anticipates that Partially addressed. Section 4.5 Preparation – Enbridge plans to using barges and boats to deliver construction activities will take mobilize to site using barges and heavy equipment and materials to place from approximately mid- LKFN understands the boats to deliver heavy site. The timing of construction is rationale but needs to May to the end of September. equipment and materials to site. stated at between May and review the finalized EPP The timing of construction is October. However, Table 5.3 states Mobilization and demobilization before construction. A stated at between May and that construction will occur during will occur under non-frozen Project and facility lifecycle October. However, Table 5.3 frozen conditions to avoid harm to conditions. agreement will enable states that construction will fish. This may refer to the small ongoing engagement with occur during frozen conditions watercourse crossings, however Mitigation measures regarding the the LKFN, Enbridge and to avoid harm to fish. This may there is limited mitigation barge landing site and barge regulatory agencies to refer to the small watercourse surrounding barge sites and docks operations will be added to protect fish and fish crossings, however there is that are scheduled to be subsequent revisions of the habitat. limited mitigation surrounding implemented. Given the presence Project EPP, to be updated prior to barge sites and docks that are of spring spawning fish at the site, the start of construction. scheduled to be implemented. the probability of substrate disturbance from barge activity and Enbridge will continue to engage landing site construction could with the LKFN and other Dehcho affect migration and spawning First Nations in open and habitat at the site and transparent dialogue concerning downstream. the Project and will continue to
offer opportunities to engage for • Provide further clarification on the purposes of exchanging the timing of construction and information regarding the Project resolve the contradiction and responding to interests and between the project outline concerns that may arise, including and the mitigation table. concerns related barge • Provide further information on Comment Issue Area ESA Reference Issue: preamble & rationale Information Request (IR) Enbridge Response Response Adequacy: IR # Addressed/Partially Addressed/Not Addressed? mitigation measures regarding operations. barge landing sites. • Please provide more detail on the barge schedule and landing procedures. Also LKFN request details of the type of barges being used in order to understand the extent of interaction with the aquatic environment (i.e. spud barges secure to river bottom and can contribute to significant sediment mobilization). 47 Fish and Fish Habitat Section 2.3.1; In a memo to Enbridge, LKFN • LKFN feels that the assessment Background fish and fish NOT ADDRESSED. Section 4.5 expressed concern that there of fish habitat was insufficient, habitat information, combined were insufficient studies done especially with regard to frac- with a scoped field review of A detailed aquatic regarding the impact of the assessment is required to out events. Provide further aquatic conditions, was used Project on fish health and information on the fish habitat support plans for to inform the mitigation habitat, hydrogeology and on present at site, and also the appropriate emergency aquifers. Enbridge’s response habitat within the Zone of measures for protection of management, mitigation was that sufficient studies have Influence. fish and fish habitat during and reclamation measures been done and that the HDD • Fully describe the spill response construction of the Project. in the event of a frac-out. crossing method is low risk. measures with regard to fish Enbridge is aware of the Granted, the interaction with and fish habitat for frac-out importance of fish habitat A Project and facility fish and fish habitat may be low events. Include details on lifecycle agreement will within the Mackenzie River, due to the HDD method, unless cleanup and remedial enable ongoing Manners Creek, and the two a spill occurs, in which case measures for frac-outs that are engagement with the LKFN, significant impacts to the protective of fish, fish habitat, unnamed watercourses that Enbridge and regulatory aquatic habitat and fish species other aquatic species and are crossed by the right-of- agencies to protect fish are likely. Enbridge has provided wetland areas. way that will be used for and fish habitat. little explanation on spill access to the Project Footprint response and prediction of area. impacts with relation to a frac. The Spill Contingency Plan, included as Appendix C of the Draft Environmental Comment Issue Area ESA Reference Issue: preamble & rationale Information Request (IR) Enbridge Response Response Adequacy: IR # Addressed/Partially Addressed/Not Addressed? Protection Plan filed with the NEB on May 8, 2017 as part of Enbridge’s response to NEB Ruling No.1 [NEB Filing ID: A83286-21] describes spill response measures. 48 Water Quality and Section 4.4, Enbridge has not provided a • Provide a detailed Water A Turbidity Monitoring Plan is NOT ADDRESSED. Quantity Table 5.3 detailed Water Quality Quality Monitoring (WQM) currently being developed for the Monitoring (WQM) plan that plan that will be in place prior Project and will be made available LKFN needs to review the outlines the methods used and any work activities, including to LKFN prior to the start of finalized Turbidity degree of sampling effort during the types equipment will be construction. Monitoring Plan before drilling activities. Given the used to monitor turbidity construction. A detailed sensitivity of fish habitat at site during drilling activities (i.e. aquatic assessment is and the potential for frac-outs Sonde deployment or hand required to support plans to occur during spawning held Lamotte Sampling). for appropriate emergency periods, LKFN would like further • Provide detailed rationale of management, mitigation information on Enbridge’s WQM WQM efforts, the frequency of and reclamation measures plan and spill response efforts. sampling, geographic extent of in the event of a frac-out. sample sites based on the zone of influence and frac-out/spill A Project and facility response contingency plans. lifecycle agreement will • Describe how LKFN will be enable ongoing involved in the water quality engagement with the LKFN, monitoring program, including Enbridge and regulatory a plan for staffing the WQM agencies to protect fish team and engaging LKFN and fish habitat. community members. • Describe mitigation measures for spills response and containment procedures to limit impact to water quality and fish habitat 49 Water Quality and Section 4.4, Considering the proximity of the Provide detail regarding Erosion and sediment control Partially addressed. Quantity Table 5.3 drill pads to the watercourse, sediment and erosion control measures in relation to bank there needs to be further detail measures with relation to bank stability around barge landing LKFN needs to review the around sediment and erosion stability around barge landing sites and drill pads will be finalized EPP before Comment Issue Area ESA Reference Issue: preamble & rationale Information Request (IR) Enbridge Response Response Adequacy: IR # Addressed/Partially Addressed/Not Addressed? control for activities involving sites and drill pads. included in a subsequent construction. A detailed heavy equipment and drilling revision to the Project EPP, to aquatic assessment is rigs close to the Mackenzie be updated prior to required to support plans River. construction for appropriate emergency management, mitigation and reclamation measures in the event of a frac-out. 50 Water Quality and Section 4.4; The EA states that the HDD has Provide more detailed Enbridge has conducted a Not addressed. Quantity Table 5.3 the potential to interact with information on aquifer and review of the hydrogeological groundwater and aquifers, but groundwater modelling. characteristics of the Project LKFN would like further provide little background or Provide detailed information explanation on the Footprint based on mitigation recommendations. on the underground drill path rationale that the HDD will with respect to understand geotechnical investigations not impact the aquifers it is pilot depths, substrates, completed as part of the HDD intersecting. The approach angles of the drill and feasibility study. proponent acknowledges the potential to encounter that the drill will penetrate aquifers. Potential aquifer zones have an aquifer on the south been identified, and the side, but explains that formations that could be damage will be limited as potentially productive aquifers the drill only intersects the are located mainly on the aquifer briefly. Regardless of length of intersection south side of the HDD with the aquifer, if drilling alignment. Based on regional fluid is released at the characteristics, these aquifers small intersection it could are likely to be low- yielding impact the larger aquifer. (insufficient to satisfy most Please provide clarification domestic and light industrial on the “short” intersection of the drill, and the uses). likelihood of a frac-out The potential aquifer zones within the aquifer and will not be materially subsequently reaching impacted by the HDD as the surface waters. drilling fluid impacts are localized to the HDD borehole only. The potential aquifer Comment Issue Area ESA Reference Issue: preamble & rationale Information Request (IR) Enbridge Response Response Adequacy: IR # Addressed/Partially Addressed/Not Addressed? zones will be intersected at an angle by the HDD borehole; therefore, these aquifers will not have a long intersection with the HDD borehole. Bentonite-based drilling fluids are regularly used in the drilling of drinking water wells with no long-term effects on aquifer capacity or groundwater quality. 51 Permafrost Thaw and Part 1, Section In second paragraph, the report What is causing the rates of While the Project is mapped as a NOT ADDRESSED Slope Movement 1.0 Page 5 states “In 2016, through regular slope movement to increase? zone of extensive discontinuous maintenance and inspection, permafrost, no permafrost was LKFN considers this an increased rates of slope What steps will be taken to outstanding concern, and encountered during geotechnical movement were identified reduce the impact of this intends to bring evidence around the pipeline near the disturbance (i.e. installation of investigations completed as part forward to the oral Mackenzie River along the the camps and related of the HDD feasibility study. hearing. existing ROW. Given increased infrastructure) on further slope rates of permafrost thaw, instability and other negative Enbridge will nevertheless shorter winters (including impacts? implement measures to reduce shorter duration of frozen potential impacts of the Project on ground) throughout the region, permafrost, including prohibiting it seems reasonable that the the disposal of heated water used increased rates of slope for hydrostatic testing in potential movement reported by permafrost terrain; minimizing Enbridge is the result of climate warming. vegetation clearing to the extent required to accommodate HDD activities; working from matting to reduce impacts to soil; and rolling back vegetation onto cleared areas during clean- up.
Slope stability concerns have been addressed in Enbridge’s response Comment Issue Area ESA Reference Issue: preamble & rationale Information Request (IR) Enbridge Response Response Adequacy: IR # Addressed/Partially Addressed/Not Addressed? to NEB Ruling No. 1 [NEB Filing ID: A83286]. Vegetation Clearing Part 1, Section Re: “vegetation clearing”. What steps will Enbridge take Please refer to Response to IR NOT ADDRESSED 2.3.1 Page 13 Exposing of bare ground and to mitigate permafrost No. 51. compaction of soil will lead to degradation and ground LKFN considers this an 52 subsidence of the ground subsidence in areas where outstanding concern, and surface (i.e. local depressions). vegetation has been cleared? intends to bring evidence Water accumulated in the forward to the oral hearing. depressions keeping the soil wet. Wet soil is more thermally conductive than dry soil, so it can be expected that the combination of clearing vegetation and compaction of the ground surface will result in local thaw and subsidence of the ground. 53 Permafrost Extent and Part 1, Section Enbridge states that the site is in What has/will Enbridge done to Please refer to Response to IR NOT ADDRESSED Conditions 4.1 Page 18 the zone of extensive determine where permafrost No. 51. discontinuous permafrost (i.e. exists and to determine ice LKFN considers this an permafrost underlies between content of the permafrost (e.g., outstanding concern, and 50% and 90% of terrain), but geophysical surveys)? intends to bring evidence then proceeds to state that it is forward to the oral hearing. near the zone of sporadic What will Enbridge do to discontinuous permafrost (i.e. prevent, or mitigate the permafrost underlies between impacts of, impacts due to 10% and 50%) of terrain. It is disturbed permafrost such as also stated that permafrost only ground subsidence and occurs in isolated patches on creation of thermokarst the landscape. The report terrain, which can water-log therefore suggests that tree roots and alter forest permafrost could underlie composition. anywhere between 10% and 90% of the landscape. This range is extremely inadequate and does not provide the Comment Issue Area ESA Reference Issue: preamble & rationale Information Request (IR) Enbridge Response Response Adequacy: IR # Addressed/Partially Addressed/Not Addressed? baseline information required to assess the report. Permafrost in this region is rapidly changing, and site assessments conducted in the 1980s may not be indicative of current permafrost conditions. Enbridge has reference no recent permafrost research (i.e., all research referenced is from before the recognition of wide-scale permafrost thaw in the Dehcho region). 54 Average Monthly Part 1, Section Climate data – it is highly Clarify climate data Climate data is provided as an NOT ADDRESSED. Snowfall 4.1 Page 18 unlikely that average monthly average over the period of May to snowfall between May and October based on Environment This indicates 41.4 cm of October is 6.9 cm. Canada data from the Fort snow between May and Simpson station. October. Requires verification.
55 Soils and Soil Part 1, Section The description of the study site What is the thickness of near- Three small peatland wetlands NOT ADDRESSED. Productivity 4.2 Page 19 indicates the presence of surface organic soils? Are there occur along the existing pipeline wetlands, which suggests that any peatland deposits in the right-of-way. HDD activities will A detailed wetland there are some peatlands in the region? assessment should be occur outside of these wetlands. region. Kay et al. (1983) found conducted prior to drilling that peatlands occupy between Soil depths will be confirmed prior activities, to provide a 10% and 25% of the area in the baseline for these habitat to construction for all areas to be Manners Creek watershed, types, and to identify the which is located adjacent to the disturbed. extent of damage if a frac- work site. out were to occur, in addition to appropriate emergency response, mitigation and reclamation measures that are warranted.
Comment Issue Area ESA Reference Issue: preamble & rationale Information Request (IR) Enbridge Response Response Adequacy: IR # Addressed/Partially Addressed/Not Addressed? 56 Wetlands Part 1, Section Access through wetland areas Will there be any removal of No removal of trees is planned in Addressed. 4.6 Page 23 will be conducted by installing trees on the peat plateaus to peat plateaus. mats across the landscape. The facilitate an access route? If so, report indicates that peat what measures will be taken to plateaus are also present in the mitigate impacts? landscape.
Enbridge Line 21 Pipeline Segment Replacement Project
Łíídlįį Kų́ę́ First Nation - NEB Evidence Submission
June 28, 2017
Secretary of the Board, National Energy Board (NEB)
Hearing Order MH-001-2017 and File No. OF-Fac-Oil-E101-2017-07 01
Written evidence of the Łíídlįį Kų́ę ́ First Nation June 28, 2017
Hearing Order MH-001-2017 and File No. OF-Fac-Oil-E101-2017-07 01 1
Overview ...... 3
A) Applicable Law ...... 5 B) LKFN Rights, Claims, and Interests in Project Area ...... 5 i) The Inherent Rights of the LKFN as an Indigenous People ...... 5 ii) The Dene Rights of LKFN ...... 6 iii) LKFN Laws of the Harvest ...... 7 iv) LKFN Treaty and Traditional Territory ...... 7 v) Consent is Required ...... 8 vi) The Dene Worldview ...... 10 vii) Łíídlįį Kų́ę ́ First Nation Governance ...... 12 viii) Łíídlįį Kų́ę ́ First Nation Decision Making ...... 14 ix) Łíídlįį Kų́ę ́ First Nation Land Use and Occupancy ...... 14 x) LKFN Domestic Water Use and Concerns About Water Quality ...... 16 xi) Current Łíídlįį Kų́ę ́ First Nation Land Use in the Project Area ...... 17 xii) Summary ...... 18 C) Enbridge’s Failure to Acknowledge and Address Łíídlįį Kų́ę ́ First Nation’s Rights, Interests, and Concerns Through Their Line 21 Environmental Assessment Application ...... 18 i) Dene Ties to the Land ...... 18 ii) Old Impacts, New Impacts – Protection of the Land and Dene Rights to Access Healthy Lands ...... 18 iii) Risks to Łíídlįį Kų́ę ́ First Nation’s Dene Rights from Inadequate Effects Assessment . 19 iv) Project Impacts and Interactions ...... 21 v) Project Effects, Interconnected Dene Values and Implications to Dene Rights ...... 23 vi) HDD Impacts and Implications ...... 24 vii) Project Effects on Community Health and Well-Being ...... 26 viii) Project Effects on Cultural Heritage ...... 27 ix) Social and Cultural Impacts of Worker Camps on Indigenous Women ...... 27 D) Crown Consultation and the Enbridge/LKFN Engagement Process ...... 28 i) The Duty to Consult ...... 28 ii) No Meaningful Opportunities to Consult ...... 30 iii) Efforts by LKFN to Engage Enbridge ...... 31 iv) No Resources Have Been Provided to LKFN ...... 31 v) Failure to Respect LKFN’s Consultation Protocols...... 32 E) Summary and Recommendations ...... 34 F) Preliminary Conditions and Recommendations for Project Approval .. 36
REFERENCES ...... 38
JURISPRUDENCE ...... 39
Hearing Order MH-001-2017 and File No. OF-Fac-Oil-E101-2017-07 01 2
Overview
1. The Łíídlįį Kų́ę ́ First Nation makes this submission in respect of the Line 21 Pipeline (also known as the Norman Wells Pipeline) Replacement Program (the “Project”).
2. Enbridge proposes to install up to 2.5 kilometres of new 323.9 (NPS 12) pipeline under the Mackenzie River. The new pipe will be installed using a trenchless crossing method called horizontal directional drilling (HDD). Enbridge is also applying to decommission the section of pipeline that is being replaced. The company plans to transport the necessary equipment and materials to the worksite by truck and barge and to carry out the proposed activities within the existing right of way.
3. In support of the Project, Enbridge has applied to the National Energy Board (the “NEB” or “Board”) for an exemption pursuant to section 58 of the NEB Act from the provisions of paragraph 30(1)(b), and sections 31 and 47 in regards to the construction of the Project, and for an order enabling the Project to proceed. Enbridge is also seeking an order pursuant to section 45.1 of the National Energy Board Onshore Pipelines Regulations (OPR) to decommission the segment of the existing pipeline in state. Enbridge styles the Project as nothing more than a “routine replacement” of a segment of Line 21.
4. The Łíídlįį Kų́ę ́ First Nation believes that the Project is nothing of the sort. The Project affects the Dehcho river (also known as the Mackenzie River), which is at the core of Dene traditional territory and the lifeblood of the Łíídlįį Kų́ę ́ First Nation. The lands, animals, and waters in the area of the Project are critical to the cultural identity and integrity of the Dene people and members of the Łíídlįį Kų́ę ́ First Nation (LKFN). The Project is only “routine” in the sense that is a part of a long and terrible history of “routine” infringements and impacts on the lands, rights and way of life of the Łíídlįį Kų́ę ́ First Nation.
5. For thousands of years, the Dene people represented by the LKFN have used; continue to use, and will continue to use the lands and waters intersected by the Project. Their identity is inherently tied to the lands and waters within the area surrounding the Project area. The Dene people never ceded their rights to this land, and have no intention of ever doing so.
6. Enbridge’s submissions in support of the Project vaguely refers to the Indigenous peoples in the region and acknowledges their “assumption” that ‘these people’ may traditionally use the lands in the Project area. This vague and dismissive reference to Indigenous peoples in the region and minimization of their connection to the land is illustrative of their overall indifference to the past and present impacts of Line 21 on the Łíídlįį Kųę́ ́ First Nation and their constitutionally protected Aboriginal and Treaty rights.
7. In LKFN’s assessment, Enbridge has:
A. failed to meet the minimal standards set in out their own Indigenous Peoples Policy; Hearing Order MH-001-2017 and File No. OF-Fac-Oil-E101-2017-07 01 3
B. failed to provide the NEB with adequate information necessary to evaluate whether the Project will cause significant adverse environmental and/or socio-cultural effects; and C. failed to meaningfully consult and accommodate LKFN, or to provide a sufficient basis on which the NEB and other Crown decision-makers could meaningfully consult and accommodate LKFN.
8. LKFN accordingly submits that granting Enbridge’s requests for exemptions and orders enabling this Project to proceed will result in infringements on the LKFN’s Dene rights. Accordingly, the NEB, and other Crown decision-makers as applicable, should therefore reserve decisions with respect to exemptions, orders and approvals for the Project until:
Enbridge provides sufficient information to satisfy the outstanding Information Requests and other issues that arise during the remainder of the hearing concerning the impacts of the Project on the lands, rights and way of life of the LKFN and other Dene; the potential effects of the Project and its associated facilities and activities are fully determined, and the Crown’s duty to consult and accommodate the LKFN with respect to the Project is fully discharged.
9. In this submission, LKFN provides the NEB with additional evidence concerning the impacts of the Project on LKFN’s lands, rights and way of life, and guidance on measures that should be undertaken to ensure that LKFN community members can continue to uphold their traditional rights, interests, and land use practices in the event that the Project is approved. These measures will help the NEB ensure that that LKFN rights are respected, and that measures are implemented to ensure the specific needs and concerns of LKFN are accommodated.
Hearing Order MH-001-2017 and File No. OF-Fac-Oil-E101-2017-07 01 4
A. Applicable Law
10. The LKFN are Dene, who reside on and use LKFN Dene land. They have never ceded or surrendered their land to the Crown. Canada entered into Treaty 11 with LKFN, and LKFN maintains the Treaty relationship as the foundation of its dealings with Canada. LKFN understands Treaty 11 as a solemn undertaking of peace and friendship between Canada and the Dene. It was not a surrender of land, but a mutual commitment to ensure that the Dene way of life would remain, without impacts or infringements, for future generations. Accordingly, LKFN maintains Dene rights and title to their lands. The Treaty relationship is also the basis of the Dehcho Process within which Canada and the Dehcho First Nations, including LKFN, are working to conclude modern arrangements to govern their relationship and to manage lands and resources.
11. The United Nations Declaration on the Rights of Indigenous Peoples (“UNDRIP”) affirms, among other things, the right of LKFN to give their free, prior, and informed consent (“FPIC”) to any project or activity before it can proceed on their land. LKFN has never consented to the construction, operation, maintenance, or decommissioning of Enbridge’s Line 21 pipeline on LKFN land.
12. As Indigenous peoples, LKFN have rights enshrined in Canada’s Constitution. LKFN’s rights to hunt, fish, trap, and gather on their land cannot be unjustifiably infringed, and their prima facie claim to Dene title must be respected.
13. The NEB Act, and the Board’s duties to engage in deep and meaningful consultation with LKFN about Enbridge’s proposed Line 21 Project in order meaningfully address the serious risks the Project poses to LKFN rights, must be understood and applied in accordance with the constitutional obligations and international legal principles to which Canada has committed.
B. LKFN Right, Claims, and Interests in Project Area i) The Inherent Rights of the LKFN as an Indigenous People
14. The LKFN has inherent rights to self-government and self-determination, as recognized by Canadian and international law.
15. The United Nations Declaration on the Rights of Indigenous Peoples recognizes certain rights of the LKFN and other Indigenous nations, and obligates Canada and other states to engage with Indigenous peoples in a manner that does not infringe these rights. Of importance are the following enshrined rights and obligations:
Hearing Order MH-001-2017 and File No. OF-Fac-Oil-E101-2017-07 01 5
Indigenous peoples have the right to participate in decision-making in matters which would affect their rights, through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own indigenous decision-making institutions.1
Indigenous peoples have the right to determine and develop priorities and strategies for the development or use of their lands or territories and other resources.2
States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.3 ii) The Dene Rights of LKFN
16. LKFN are Dene, and are recognized as Aboriginal people within the framework of Canadian law. In 1921, Canada entered into Treaty No. 11 with LKFN and other Dene. The distinct Aboriginal and Treaty rights—or more properly described, the Dene Rights--of LKFN are protected by s. 35 of the Constitution Act, 1982.
17. The terms of Treaty 11 have been judicially considered, and are an important part of the context for this hearing. After hearing extensive evidence about the signing of Treaty No.11, Dene land use and occupation from LKFN members and other Dene in a case known as the Paulette Caveat,4 Northwest Territories Supreme Court Justice Morrow ruled that LKFN and other Dene in the Northwest Territories have a legitimate claim to Dene title over their lands:
I am satisfied on my view of the facts that the indigenous people who have been occupying the area covered by the proposed caveat come fully within [the criteria for Aboriginal title] and that in the terms of the language of Justice Hall in the Calder case may therefore be “prima facie owners of the lands.5
18. Justice Morrow further found that there was significant doubt concerning the validity of the terms of the written treaty which purported to ‘cede, release and surrender’ Dene land to Canada, and concluded:
1 United Nations Declaration on the Rights of Indigenous Peoples, art 18. 2 United Nations Declaration on the Rights of Indigenous Peoples, art. 32(1). 3 United Nations Declaration on the Rights of Indigenous Peoples, art. 32(2). 4 Re Paulette et al. and Registrar of Titles (No. 2), 42 DLR (3d) 8. 5 Re Paulette et al. and Registrar of Titles (No. 2), 42 DLR (3d) at page 28. Hearing Order MH-001-2017 and File No. OF-Fac-Oil-E101-2017-07 01 6
That notwithstanding the language of [Treaty No. 8 and Treaty No. 11] there is sufficient doubt on the facts that aboriginal title was extinguished that such claim for title should be permitted to be put forward by the Caveators.6
19. Morrow’s granting of a caveat was overturned on appeal, but his findings of fact and law concerning title and rights were never overturned by higher courts. LKFN have never ceded or surrendered their lands or rights to Canada, and maintain their rights and title. On this basis, LKFN have been a party to ongoing land claim and self-government negotiations with Canada since the mid-1970s, first through the Dene-Metis Process, and subsequently, the Dehcho Process, but have not settled any land claim or self-government agreements with Canada or the Government of the Northwest Territories. iii) LKFN Laws of the Harvest
20. The people of the LKFN have lived and relied on the land for millennia and have an accumulated knowledge and understanding of the human place in relation to the universe. This traditional knowledge encompasses spiritual relationships, relationships with the natural environment and the use of natural resources, relationships between people, and is reflected in language, social organization, values, institutions and laws of the LKFN. It is the ancient, communal, holistic and spiritual knowledge that encompasses every aspect of human existence, which has been passed from generation to generation orally and through personal experience and spiritual teachings, and pertains to the identify, culture and heritage of the LKFN.
21. Elders and experienced land users are recognized as being the holders of knowledge about harvesting and the laws of the harvest. Laws of the harvest are based on knowledge of animals, fish, plants, and ecosystems, and on the principal of reciprocity. However, this knowledge is communal, and is for the benefit of all people and the land. Custodians of the knowledge are responsible for ensuring it is passed on from one generation to the next.
22. The laws of the harvest and the associated knowledge is passed on using a pedagogy that is land- based and grounded in participation. These laws are not passed on in the classroom or in books, but rather on the land.
23. The LKFN has always, and continues to manage the harvest of animals, fish, plants and medicines from the land using their own systems of laws and knowledge. iv) LKFN Treaty and Traditional Territory
24. The lands of LKFN have always included the land in and around Fort Simpson, including the project area. Former LKFN Chief Baptiste Cazon’s testimony to this effect during the Paulette Caveat was summarized as follows by Justice Morrow:
6 Re Paulette et al. and Registrar of Titles (No. 2), 42 DLR (3d) at page 40. Hearing Order MH-001-2017 and File No. OF-Fac-Oil-E101-2017-07 01 7
[W]hile his people had no written history, as far back as their memories down through each generation could go, his people had made their homes in the general area of Fort Simpson and that such lands had always been considered to be theirs. According to him, for thousands of years, his people had used the land for hunting and fishing, to obtain food and clothing. They roamed all over the country in pursuit of game.7
25. Canada has recognized Fort Simpson and surrounding land, including the project area, as LKFN when travelling to Fort Simpson to enter into Treaty discussions with LKFN and by ongoing land claim and self-government negotiations with LKFN. v) Consent is Required
26. The duty to consult and accommodate is to be analyzed on a spectrum. The scope and content of that duty will be assessed based on a number of factors including: the prima facie strength of the claim, the significance of the right and potential infringement, and the nature of the potential damage to the claimed right or title.8
27. Claims on the weaker end of the spectrum may only require the Crown “to give notice, disclose information, and discuss any issues raised in response to the notice.” However, where the potential claim is strong and the impact of an infringement will be significant, “deep consultation” will be required.9
28. As set out above, LKFN has established a strong basis for having established rights and title in the immediate area of the Enbridge proposal. LKFN establishes in this evidence submission that the potential adverse impact of an infringement of their rights and title as a result of the Enbridge proposal is significant. LKFN have also established that they have their own laws which govern the use of lands and resources that must be respected.
29. The standard for Treaty interpretation and consideration is set out by the Supreme Court in R. v. Badger10. It requires that the Treaty “be liberally construed and any uncertainties, ambiguities or doubtful expressions should be resolved in favour of the Indians”11 and “interpreted in the sense they would naturally have been understood by the Indians at the time”.12
30. On the basis of Morrow’s findings in Paulette, the LKFN has established, at a minimum, a prima facie case for rights and title in the Project area, and LKFN is owed the deepest duties of
7 Re Paulette et al. and Registrar of Titles (No. 2), 42 DLR (3d) at page 14. 8 Haida, at para. 43. 9 Haida, at para. 44. 10 R. v. Badger, [1996] 1 SCR 771. 11 R. v. Badger, [1996] 1 SCR 771 at para 52. 12 R. v. Badger, [1996] 1 SCR 771 at para 52. Hearing Order MH-001-2017 and File No. OF-Fac-Oil-E101-2017-07 01 8
consultation and accommodation in respect of the Project, including the right to consent to the Project.
31. LKFN maintains that nothing short of their free, prior and informed consent is required. Such consent may be sought in accordance with LKFN laws and governance and through deep and meaningful engagement with the Crown in furtherance of the Treaty relationship.
Hearing Order MH-001-2017 and File No. OF-Fac-Oil-E101-2017-07 01 9
vi) The Dene Worldview and the interconnectedness of ecological and cultural wellbeing
32. The Dene world view can be described as being:
based upon the natural world of animals, ecology, aquatic beings and the natural elements: fire, wind, sky and water. The human animal was always interconnected with those elements. The Dene have strong ties to their kinship. The unity of a family structure is important to the whole community. Dene elders teach community members be sensitive to the land, water, sky or universe, and animals and plants because they offer life. People are not directors in that environment but an integrated part of a whole system. The Dene rely on the environment and its species. We do not abuse what the creator has loaned to us to protect, for example; the caribou is not abused and every part of it is used for something and what is not usable is burned13
33. Dene law holds that decisions are made based on the requirement that “the land be left for future generations in as good shape as it was received from ancestors.”14
34. An additional key aspect of interconnectedness in the Dene world view is resilience and the spiritual dimension of living well. This is interconnectedness has been described as follows:
Living well together is a commonly held notion in Dene culture and this concept is expressed in the language...Dene culture’s spiritual dimension has been used to inspire and develop learners. Although these traditional teachings were suppressed for generations, Indigenous people must be credited with the ability of ensuring the continued existence of their traditional cultures and ways of knowing.15
35. In the Dene way all aspects of creation – including, rocks, air, water, fire, animals, plants, and astral bodies like planets and stars – have spirits associated with them, and humans are required to conform to the natural order of creation.16
36. This order, in which humans are dependent on the rest of creation, is described as follows:
Dene oral history teaches that human beings were the last beings to be created. Being the youngest of creation the Dene accept that human beings are the least knowledgeable and least capable of survival on their own in this world.
13 Saskatchewan Indigenous Cultural Centre (n.d.). The Dene World View. 14 “It Was Only a Treaty”: Treaty 11 According to the Dene of the Mackenzie Valley, at page 6. 15 Hansen, J.G. & Antsanen, R. (2016). Elders’ Teachings about Resilience and its Implications for Education in Dene and Cree Communities. The International Indigenous Policy Journal, 7(1). 16 “It Was Only a Treaty”: Treaty 11 According to the Dene of the Mackenzie Valley, at page 15. Hearing Order MH-001-2017 and File No. OF-Fac-Oil-E101-2017-07 01 10
It is the rest of creation which has made it possible for mankind to survive. The rock saw the confusion of human emotions and knew that because of that human beings would have a hard time to communicate. The rock offered to communicate with the Creator for humans if we would ask. The animals agreed to gift themselves to [sic] for food, medicine, clothing and shelter as long as humans lived according to the laws given to [sic] by the spiritual helpers and the One who is above all of creation. The plants agree to give their being for food and medicine.17
37. The Dene have a tradition of sharing information and knowledge, not through written words like the European colonizers introduced, but through oral tradition. Dene oral tradition, like that of many Indigenous cultures, is full of numerous stories of creation and cultural heroes including a distinctive creation story about how the world came to being. Dene stories are divided between the two categories: accounts of reality, and spiritual stories or myths. The former addresses the real-life events of the Dene, whereas the latter concerns itself with the creation of the world and how we came to be.
38. Further, Dene oral tradition is intimately tied to the land. Place names have been described as being “used like library index cards by the Dene.”18 It is thus unsurprising that impacts on the land, however minor they may seem to outsiders, have significant and often disproportionate effects on the LKFN.
39. A report on the Dene way of life for The Royal Commission on Aboriginal Peoples describes the prevalence and use of place names as follows:
Each name has an accompanying story which tells of the historically significant event that took place there. During the 1970’s the Dene Nation sponsored a land use research project which identified about 20,000 place names. Further research by the University of Alberta Department of Anthropology has led at least one person …, formerly from that department, to claim that 50,000 Dene place names in the Mackenzie valley would be a conservative estimate. Some of the stories take up to several days to tell. Others would take only a minute or so. If the average story rounded out to about fifteen minutes to tell, then the 20,000 place name [sic] would fill approximately 20,000 pages of historical information.19
40. The number and breadth of Dene place names is neither incidental nor coincidental. It speaks to and is indicative of a unique and indispensable relationship to the land, which must be considered by the NEB.
17 “It Was Only a Treaty”: Treaty 11 According to the Dene of the Mackenzie Valley, at page 16. 18 “It Was Only a Treaty”: Treaty 11 According to the Dene of the Mackenzie Valley, at page 10. 19 “It Was Only a Treaty”: Treaty 11 According to the Dene of the Mackenzie Valley ,at page 10. Hearing Order MH-001-2017 and File No. OF-Fac-Oil-E101-2017-07 01 11
Photo Credit: Dehcho.org; LKFN Community Gallery Credit: Community Dehcho.org; Photo LKFN vii) Łíídlįį Kų́ę ́ First Nation Governance: Dene laws, values, principles and decision-making
41. LKFN’s traditional and moral authority is informed by Dene laws and values, which are based upon the necessity to act for the collective rather than for the individual interest, and to protect the land from which the people come from.
42. The LKFN shares information and make decisions based on the following 10 Dene Principles:
1. This land was created ‘by the one who provides for all,’ and we come from this land. We recognize our equality with this land and all living creatures.
2. We recognize and respect the natural laws which regulate the cycle of the seasons, the rhythms of the earth, and the ways of the animals.
3. No one individual has the right to own the land. As the ones who come from this land, we have a collective right to use the land and its resources to ensure our survival as a people. We also have
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a collective responsibility to protect the land and resources for our children and grandchildren.
4. We take only what we need from the land. We honour and give thanks to the spirit of the land and that which we take from the land. We do not waste anything that we have taken from the land, but share it with all who are in need.
5. The survival of the whole group (family and community) is more important than the accumulation of individual wealth or status.
6. Individual rights and freedoms are respected and encouraged within the larger, more important context of a collective identity and collective responsibility for the survival and well-being of the entire group.
7. The laws of the Dene, which have been passed down to us by our Elders, teach us how to respect the land, ourselves, and each other. They teach us how to live in balance and good health, and how to protect ourselves and our children. We must continue to live by these laws and pass them on to our children.
8. We respect and care for each other. In particular, we honour and provide for our Elders, who cared for us and passed on the gifts of generations past. We also honour and provide for our children who will pass on the ways of the Dene to generations yet to come.
9. We come from male and female and we respect and honour the contribution which both men and women make in working together for the survival of the people.
10. We respect and honour our leaders and medicine men and women who share their special skills, experience, wisdom, and powers for the benefit of the people. We don’t expect them to work for us or serve us but we look to them for guidance and instruction to help us govern ourselves in a good way.
(Liidlii Kue First Nation, 2010)
43. When it comes to protecting and making decisions concerning the Nation’s lands and resources, everyone has the right to be heard and to take part in the decision-making process on discussion of matters which will affect us. We respect the rights of Dene in family groups, in communities, or in regions to make decisions without interference from outside with respect to matters which affect us in our territory.
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Photo credit: DeneNation.ca viii) Łíídlįį Kų́ę́ First Nation Decision Making regarding the proposed Line 21 Pipeline Replacement Project
44. With respect to the LKFN’s Indigenous/Dene and Treaty Rights, the proposed Project and its potential effects on the environment and our people present potential risks to our rights that require meaningful consideration. Any potential effect from a development’s activities that may result in changes to Dene lands, water, animals or people need to adequately assess and addressed according to Dene laws, values and principles.
ix) Łíídlįį Kų́ę́ First Nation Land Use and Occupancy
45. Limited evidence of LKFN’s current land use in the Project area is illustrated in Figure 1 below. This figure simply shows land and resource use activities from a sample of LKFN members over a 1 year period from 1996-1997, including:
Fishing sites Hunting sites for big game, small game, and birds Occupancy sites Trapping and snaring locations Cultural sites Gathering sites
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46. It should be noted that the most recent available ‘formally written’ data collection regarding LKFN land use and occupancy, and is 20 years old, and must be understood in the context of being a part of “…over 4000 years of conclusive evidence of Dene and Łíídlįį Kų́ę ́ Nation members connection to, and use of the land and waters through oral history and practicing of their inherent Aboriginal rights” (Chief Antoine, personal communications, June 14, 2017).
47. This evidence demonstrates LKFN’s connection to and use of their lands and resources. LKFN maintains that such connections are necessary for the community’s present and future health and wellbeing.
Figure 1 Łíídlįį Kų́ę ́ First Nation Land Use and Occupancy
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48. The Land Use and Occupancy (LUO) sites presented in Figure 1 represent a sample of activities carried out within five (5) km of the Project area. These areas must be considered as a sample set of the overall LKFN land use, and are limited to the sampling of interviewees interviewed during the data collection process undertaken by the LKFN approximately 20 year ago. 348 LUO sites were mapped within 5 km of the project area.
49. LKFN notes that the impacts from Project activities may extend well beyond this 5-km radius, including most significantly, on areas downstream of the Project in the event of discharges or spills. This is of critical concern to the LKFN. Areas downstream are critically important areas for land use, occupancy, and cultural sites for the Dene People in general, and LKFN members in particular. This includes hunting and harvesting sites along the river; areas of enduring cultural significance such as historic and contemporary camp and cabin locations, birthplaces, etc as well as places where LKFN community members routinely stop or overnight on the land.
50. The diversity of land use and occupancy in such a small area, across multiple seasons (i.e., trapping in the winter, bird hunting in the spring and fall, and gathering in the summer months) indicates that issues with the Project, such as Horizontal Directional Drilling related activities, risks of frac- outs and release of drilling fluids and mud into the river, would potentially impact the LKFN’s ability to make use of these areas in all seasons. x) LKFN Domestic Water Use and Concerns about Water Quality
51. Ground water, aquifers and the integrity of water quality is a specific area of concern in these types of development applications for the Dene people, and specifically, the LKFN. Elders, land users and knowledge holders speak of underground streams and rivers that have not been properly studied or identified by the scientists. Access to healthy water sources, however, is a critically inherent right that requires acknowledge and protection.
52. According to LKFN leaders and community members, the people of the LKFN and others use water directly from the Mackenzie River (right from the River, not just via the Village intake for drinking and other domestic uses, as well as for navigation and harvesting. Water bodies of concern include those upstream and downstream of the Project on the Dehcho (Mackenzie River) and other water sources, such as:
Ponds and lakes upstream of the pipeline crossing on the North shore (across from Fort Simpson); Several lakes near the pipeline ROW on the south side of the Mackenzie; Ground water* in muskeg areas when people are inland (i.e., * either water from aquifers and/or surface water in muskeg areas over the permafrost); and Aquifers. Hearing Order MH-001-2017 and File No. OF-Fac-Oil-E101-2017-07 01 16
53. Depending on the drainage and direction of water flow, risks to the integrity of water resources may present a risk that requires more sufficient consideration and management including a study of ground water flow/drainage, and aquifers in the area, as well as a demonstrated mitigation and management plan to address the risks and potential effects of project interactions with these water values. xi) Current Łíídlįį Kų́ę ́ First Nation Land Use in the Project Area
54. In order to supplement the more methodically collected land use evidence presented in Figure 1, two LKFN families with knowledge and use of the Project area were interviewed to contribute supplementary information in relation to the Project. Given the limited time and even more limited resources available to LKFN to conduct this work, the information gathered is incomplete and no substitute for a properly conducted land use study, but the interview participants provided evidence that:
55. There was little or no consultation or accommodation during the original construction of the pipeline
When the pipeline was originally constructed and commissioned in 1985, only one community member was engaged for consultation. This community member was “promised money, half a million dollars, which was never paid”.
56. Negative, unacknowledged and unresolved impacts from the original pipeline
Families in the area have had to move trap lines and snare lines due to roads that have been built to the Mackenzie River to service Line 21;
57. There is ongoing harvesting in the Project area;
The Project is “right behind” one of the family’s homesteads: the current elder is the third generation who has lived on that land The families still trap and hunt in the area.
Concerns and potential impacts to land use, socio-economics and wellbeing
58. The two families in the Project Area expect impacts to their traditional practices to get worse as a result of the Project. Specific concerns related to the Project include:
More people will have access to the land they use and live on There will be negative impacts to water and the environment Trucks and machines that will be encroaching on their land The (access) roads will give others access to their land A hill in the area will be “removed” to get sand and gravel
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They will not be able to trap and hunt anymore The transition from living off the land to a more town-focused life has had mental health impacts on LKFN members, including addictions and suicides. There are fewer animals in the area to hunt now “because of the pipeline and all the activities” Spills on their land because of the work The use of boats and barges on the Mackenzie River Whether or not there will be clear cutting of trees for construction Rabbits, fish, and berries are “all changing” (because of development in the area)
xii) Summary
59. Thousands of years of oral history, contemporary land use mapping and evidence obtained from LKFN leaders, community members, land users and knowledge holders reaffirms that the LKFN has and continues to extensively occupy and use the Project Area to exercise constitutionally protected rights and to maintain the Dene way of life.
C. Enbridge’s Failure to Acknowledge and Address Łíídlįį Kų́ę ́ ’s First Nation’s Rights, Interests, and Concerns through their Line 21 Environmental Assessment Application i) Dene Ties to the Land: Connections between Ecological Health and Community Wellbeing
60. LKFN members have a deep spiritual and cultural connection to the land. Community members have always, and continue to, make use of their traditional territory for their livelihood as well as spiritual and ceremonial purposes. To the Dene people, “the land is not property, it is what sustains them, and where they thrive” (Chief Antoine, Personal Communication, June 14, 2017). Historically, the Dene people and LKFN members lived as part of the land, inter-connected to all elements of the environment, including the land, the water, the animals. They prospered through their ties to the land which have included hunting, harvesting, fishing and cultural ceremonies.
61. This social and spiritual connection to the land, as well as the ability to access and use of the land is at the heart of Dene cultural identity and wellbeing. The Łíídlįį Kų́ę ́ People’s health is inherently connected to the ecological health of their lands. ii) Old impacts, new impacts – Protection of the Land and Dene Rights to Access Healthy Lands
62. The proposed Line 21 Pipeline Segment Replacement Project presents risks to the LKFN’s Indigenous rights and its community members’ wellbeing because of numerous Project activities and interactions with the surrounding ecological and human environment. These new impacts are Hearing Order MH-001-2017 and File No. OF-Fac-Oil-E101-2017-07 01 18
anticipated to add to the ongoing and growing cumulative effects being experienced by the LKFN members, as the Dene people have historically been, and continue to be, overlooked, dismissed and disrespected with regards to third party industrial natural resource development in their territories. This disrespectful behaviour will no longer be tolerated, especially considering the LKFN’s current process of community and cultural re-building and revitalization, a process that is includes a return to the land. LKFN believes that the land and its resources must be protected, and expects that the NEB will ensure that LKFN’s issues and concerns concerning the impacts of the Project on the lands, rights and way of life of the LKFN and other Dene will be fully assessed, and that LKFN is fully consulted and accommodated in this process. iii) Risks to Łíídlįį Kų́ę ́ First Nation’s Dene Rights from Inadequate Effects Assessment
63. Based on a review of the environmental and socio-economic assessment documentation (ESA) documentation and the information requests provided by Enbridge to date, LKFN concludes that proposed mitigations are inadequate and do not adequately address the potential for impacts the LKFN’s environmental, social, economic and cultural values, according to Dene principles and laws.
64. The issues identified through the LKFN’s technical review of the Line 21 ESA relate to the following four (4) NEB Issues:
NEB Issue #4: The potential environmental and socio-economic effects of the Project NEB Issue #7: Potential impacts of the Project on Aboriginal Rights NEB Issue #8: Potential impacts of the Project on land users NEB Issue #11: Safety and security during construction and operation of the Project, including emergency response planning and third-party damage prevention.
65. LKFN’s technical review of the Project’s ESA documentation concludes that Enbridge has failed to adequately acknowledge and/or propose mitigation, management and monitoring measures in a way that recognizes risks of effects on the LKFN’s Dene/Indigenous rights (NEB Issue #7). These risks are inherently inter-related to the potential impacts to environmental and socio-economic value components (NEB Issue #4; #8); as well as inadequacies of proposed emergency response plans related to accidents and malfunctions, including HDD frac-out risks (NEB Issue #11).
66. The LKFN technical review team identified a total of 56 outstanding issues and key information requests (IRs) as a result of their evaluation of the Project’s ESA documentation. Out of these 56 outstanding issues and key IRs, the LKFN technical review team notes that Enbridge provides adequate responses to less than a third of the issues raised (16 IRs - 29% were addressed in a satisfactory manner); a little over a half were only partially addressed (30 IRs - 54% were partially or provisionally addressed); and 18% of the issues (10 IRs) were not addressed adequately at all, to the point that the issues were completely dismissed.
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67. Details of the issues, rationale for the issues, corresponding information requests, Enbridge’s responses and LKFN’s evaluation of these responses can be found in Appendix 1 to this submission.
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iv) Project Impacts and Interactions
68. The following discussion sets out how the Project’s components and activities interact with the land, water, animals and people, identifies how these interactions will result in potential impacts, and provides proposals for how such impacts may be addressed in ways that respect Dene laws, values and principles.
69. Project effect mechanisms: The Project’s effect mechanisms and value component interactions involve direct construction related activities as well as indirect activities related to the temporary, transient workforce needed for the Project. This includes:
i. Right-of-way (ROW) preparation ii. Stringing, welding, coating, NDE, hydro-testing and inspecting the pipe iii. Installation of watercourse crossing by horizontal directional drill (HDD) iv. Caliper tool run to verify installation accuracy v. Right-of-way cleanup and reclamation vi. Temporary worker camps on the north and south shores of the River vii. Workforce personnel that will be staying in, and traveling in between, Fort Simpson and the Project area
70. Project effect interactions with Łíídlįį Kų́ę ́ First Nation Values and Rights: the Project activities, based on Enbridge’s currently insufficient effects assessment, either directly impact or result in unacceptable risks to land, water, animals and the, LKFN’s rights and way of life.
71. Table 7 on the following page illustrates the LKFN technical review team’s assessment of how the Project’s impacts interact with Dene values.
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Table 1 Project Effect Interactions with Dene Values and Łíídlįį Kų́ę ́ First Nation Rights
Risk to Dene Values and Łíídlįį Kų́ę ́ First Nation Rights Inter-connected effects: alteration of ecological environment, hunting, trapping, fishing, gathering areas, water sources, cultural sites within LSA and RSA; hindrance to Line 21 Project Effect Interactions with Dene Values trail and travel access to lands, alteration to terrestrial or aquatic species' migratory and/or spawning patterns; Effects to groundwater, surface water and/or sub- surface water from spills, leaks or ruptures involving deleterious substances during construction and operation phases of the Project.
Project Activities
Lands Water Animals People
Right-of-way (ROW) preparation Moderate Low Moderate Moderate
Stringing, welding, coating, NDE, hydro-testing and inspecting the pipe Low Low Low Low
Installation of watercourse crossing by horizontal directional drill (HDD) Moderate Moderate Moderate Moderate
Caliper tool run to verify installation accuracy Low Low Low Low
Right-of-way cleanup and reclamation Low Low Low Low
Temporary worker camps on the north and south shores of the River Moderate Moderate Moderate Moderate Workforce personnel that will be staying in, and traveling in between, Fort Simpson and the Project area Low Low Low Low
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v) Project Effects, Interconnected Dene Values and Implications to Dene Rights
72. Enbridge did not scope their ESA in a way that fully captures all the potential impacts to wildlife and vegetation species and habitats of importance to the LKFN. The LKFN were not consulted regarding valued ecosystem components and species they consider important to assess and protect in the case of potential effects. The spatial scale used for analyzing potential impacts to wildlife around may be too small to capture the spatial extent of impacts, including those related to a potential HHD frac out or spill.
73. Approximately half of the issues and information requests relating to wildlife and wildlife habitat, vegetation and wetlands were either only partially addressed or not addressed at all. Because of this, the Łíídlįį Kųę́ ́ First Nation has ongoing concerns about the risks to wildlife, habitats, and subsequent traditional land use practices within their territory because of the Project’s activities and the areas of weakness in Enbridge’s proposed mitigations, assessment scope and involvement in emergency response planning and participation.
74. Specifically, LKFN remains concerned about their ability to conduct traditional land use practices, including hunting and trapping near the Local Study Area (“LSA”) and in the Project Footprint (“PF”), and their involvement in environmental and cultural monitoring during all Project phases to ensure their traditional and cultural rights and interests are protected.
75. In response to many of the issues and information requests that referenced LKFN traditional knowledge, rights, and interests, Enbridge has failed to acknowledge the relevance or importance of LKFN’s requests. In LKFN’s assessment, this is disrespectful of both the NEB process and of LKFN. We can only infer that Enbridge either believes that such information requests are meaningless, or that the NEB will not explicitly require them to incorporate this information within the hearing process.
76. In this submission and in Appendix I, LKFN provides the NEB with additional evidence concerning the impacts of the Project on LKFN’s lands, rights and way of life, and guidance on measures that should be undertaken to ensure that LKFN community members can continue to uphold their traditional rights, interests, and land use practices in the event that the Project is approved. These measures will help the NEB ensure that that LKFN rights are respected, and that measures are implemented to ensure the specific needs and concerns of LKFN are accommodated.
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vi) HDD Impacts and Implications
78. Enbridge asserts that using Horizontal Directional Drilling (HDD) to cross major rivers and waterbodies will avoid or limit the interaction with the aquatic environment, and states that if HDD is successful, there should be almost no interaction or impact on the river.
79. The primary concern of the LKFN with HDD is the potential for an inadvertent frac, which would release high pressure drilling mud into the river during drilling activities. Drilling mud is used at high pressure to lubricate the hole as the drill navigates below the river. In a typical scenario, drilling mud is cycled back to the drill pad and returned to containment tanks, where it is released off-site in accordance with the proponent’s Environmental Protection Plan (EPP). However, accidental frac- outs can occur when the drill intersects a seam or crack in the substrate, and the high-pressure mud flows through the crack and into the river, potentially releasing large volumes of drilling mud into the watercourse.
80. A frac-out is an accidental release from a pipeline where drilling fluids are returned to the surface during a pipeline construction Frac-outs are a common occurrence in HDD projects (Utility Magazine, 2016). Frac-outs happen when the mud pressure in the down drilling hole exceeds the pressure within the over-burden closer to the surface, or when the drilling fluid finds a preferential seepage pathway outside of the drill hole. A preferential seepage pathway can include formations such as fault lines, fractures, nearby infrastructure or loose material (Ibid).
81. The Project ESA does not adequately consider the risks of HDD activities and frac-out impacts on the aquatic environment. These potential effects have been downplayed, if not dismissed by the Proponent. This is of great concern to LKFN.
82. Although the typical composition of drilling fluid is non-toxic, there remains far reaching negative impacts to the aquatic environment if a frac-out fluid release were to occur directly into a watercourse. The major concern with a frac-out into a river or stream is the resulting turbidity or Total Suspended Solids (TSS) level in the watercourse. Sediment mobilization, drilling fluid plumes and suspended solid increases from frac-outs are known to have significant impacts on resident fish and fish habitat. Fish populations can be negatively impacted by short-term increases in suspended sediment if severe, resulting in destruction of suitable spawning habitat or extreme decreases in egg-to-larva survival. Sediment that settles or covers rearing habitat may also reduce prey availability, increasing substrate embeddedness and burying invertebrate communities; thus, inhibiting the growth potential of juvenile fish (Robertson et al. 2006).
83. Long-term or frequent exposure to elevated levels of suspended sediment levels will result in fish population decline and changes in fish community structure. Fish species that eat invertebrates or require clean gravel for spawning will decline in sedimented areas and may be replaced by more tolerant species. The greatest impact of sedimentation is on incubating eggs and larval fish as high mortality rates of these life stages may result in reduced fish production. The magnitude of adverse
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effects will be related to exposure frequency, duration, concentration fish species and fish life stage, particle size and type and background turbidity levels (Birtwell et al. 1999).
84. In summary, a frac-out has the potential to:
destroy suitable spawning habitat, cause drilling mud sediment to settle or smother rearing habitat for juvenile fish, reduce prey availability, bury and suffocate invertebrate communities, inhibit the growth potential of juvenile fish, cause decline and changes in fish community structure, cause decline of fish species that eat invertebrates or require clean gravel for spawning and/or cause them to be replaced by more tolerant species, result in reduced fish production through impacts to incubating eggs and larval fish, can suffocate adult fish individuals, and cause fish kill events.
85. Recently, a failed HDD crossing of the Humber River forced TransCanada Pipeline Limited to abandon the use of HDD for the river crossing. During the failed attempt, TransCanada experienced a frac-out and several sinkholes.20
86. Considering the degree of adverse impacts to fish and fish habitat if a frac-out were to occur, it is imperative that a detailed aquatic assessment be conducted prior to any drilling activities, to understand the quality of the fishery, the extent of the damage if a frac-out were to occur. A detailed aquatic assessment would also support plans for appropriate mitigation and reclamation measures in the event of a frac-out. A detailed Water Quality Monitoring (WQM) plan should be designed that outlines the extent of the necessary aquatic monitoring including; turbidity sampling frequency, distance downstream monitoring will take place (zone of influence (ZOI) at the time of drilling), habitat quality, timing of drilling during spawning runs, turbidity monitoring equipment (remote sensor units or handheld) and detailed spill response procedures.
Frac-outs and potential effects on infrastructure
87. In addition to posing risks to aquatic resources, frac-outs have the potential to damage nearby infrastructure services through damages incurred such as “roads rising, nearby water pipelines failing as the frac-out washed away the bedding sand, power boxes filling with fluid and vegetation disappearing into a sinkhole caused by a frac-out”21 Therefore, assessing the risk of frac-outs is a critical component for projects that are employing the HDD method. The most commonly
20 TransCanada Pipelines Limited, Letter to National Energy Board dated 21 April 2017, re. Vaughan Mainline Expansion Project, Order XG-T211-020-2016. 21 Utility Magazine (2016). What is a frac-out in HDD. Published on: 4 May 2016. Hearing Order MH-001-2017 and File No. OF-Fac-Oil-E101-2017-07 01 25
employed method to risk assessment is the application of modelling software to assess maximum allowable fluid pressure against the expected drilling fluid pressure. vii) Project Effects on Community Health and Well-Being
88. LKFN is concerned that Enbridge does not recognize the full scope of the potential interactions between the Project and the ecological health, community health and socio-economic health of LKFN members. Given the inherent connections between social, ecological, economic and cultural values, potential impacts are complex and inter-dependent. Human or social elements pertain to employment, income, human interactions through workforce requirements and indirect effects from human activities related to an influx in temporary workers such as negative pressures on hunting, fishing and use of community services and infrastructure. Bio-physical elements pertain to project structures and activities that cause disturbance under normal conditions, as well as in the case of accidents and malfunctions – in this case, involving frac-outs or oil spills.
89. Because the proponent does not recognize a variety of human and bio-physical Project effect mechanisms and interconnections, the Project ESA fails to provide regionally and culturally appropriate assessment and management plans.
90. Without regionally and culturally appropriate assessment and management plans, the Project poses a risk to LKFN lands, rights and way of life. The Project ESA fails to recognize and understand the connections between Dene social, cultural and ecological resilience. If there were a frac-out or spill, potential impacts to water, fisheries, wildlife, vegetation and human health would inevitably impact community wellbeing. This is particularly significant for communities like LKFN that are dependent on environmental resources for their livelihoods and cultural identity. As noted in previous sections, the ability of LKFN to access, use and manage natural resources is both a constitutionally protected Dene right and paramount to the sustainability of the Dene way of life.
91. Whether there is a frac-out or spill or not, LKFN members may also may avoid the area due to perceptions that it is not safe, environmentally or spiritually. Avoidance can impact their land use patterns, the amount of wild foods consumed, and hinder community members’ connections to the land; directly affecting their health and well-being.
92. These negative impacts may be offset to a certain extent by measures that promote positive effects or socio-economic benefits that may contribute to community wellbeing, including employment during construction and operations; business opportunities to provide goods and services to Enbridge or its contractors, and support for community programs that support Dene livelihoods and cultural identity.
93. Specific commitments to ensure that impacts are mitigated and that potential benefits are realized are often included in life-of-project agreements between Indigenous communities and developers , but no such measures have been proposed by Enbridge to LKFN for this Project. Hearing Order MH-001-2017 and File No. OF-Fac-Oil-E101-2017-07 01 26
viii) Project Effects on Cultural Heritage
94. The responses to the IRs concerning cultural heritage and archaeology frequently refer to documents that Enbridge claims satisfy the issues raised. These documents have not been provided to or reviewed by LKFN, and therefore, the LKFN cannot verify Enbridge’s claims.
95. It is important to ensure that the LKFN are involved in the early stages of establishing the Standard Operating Procedures for the Project and surveying the project area for traditional use sites. Additionally, it is important for an archaeologist familiar with the Project area to ensure that LKFN community members are involved in cultural monitoring and that project personnel know how to identify artifacts, archaeological sites and traditional use sites. ix) Social and Cultural Impacts of Worker Camps on Indigenous Women
96. The Project ESA does not adequately consider the risks of temporary worker camps on the human and ecological environment. These potential effects have not been considered by the Proponent. This is of great concern, and not acceptable to, the Dene People and the LKFN.
97. There are number of literature sources that describe the social impacts of resource development transient worker camps. Social impacts refer to the impacts experienced by people, especially Indigenous peoples, who live and harvest on the land near these industrial work camps. In the case of a Northern Health study (Northern Health, 2012) regarding the impacts of industry work camps in Northern BC the authors found that a number of work camps have “negative consequences for individual workers, their families, and host communities”22 with specific issues identified including problematic use of substances such as drugs and alcohol, mental health challenges experienced by rural workers and members of host communities, increased instances of communicable disease including sexually transmitted infections (STIs), and capacity limitations with the local health system to adequately manage the increased service demands from the influx of transient workers.
98. Two studies – one conducted by The Firelight Group with Lake Babine Nation and Nak’azdil Whut’en (2017) and the other by W. Beamish Consulting Ltd. & Heartwood Solutions Consulting (2013) both presented similar findings regarding the social impacts of transient worker camps. Both studies found that a prevalent impact of transient worker camps included an increase in domestic violence and violence against women; especially Indigenous women and girls within the host communities of these camps. In addition, the two studies indicated that traditional economies (I.e. hunting, gathering, trapping) are impacted by the influx of non-Indigenous workers who hunt on the land during their downtime in the work camps.
22 Northern Health (2012). Part 1: Understanding the State of Industrial Camps in Northern BC: A Background Paper. Hearing Order MH-001-2017 and File No. OF-Fac-Oil-E101-2017-07 01 27
D. Crown Consultation and the Enbridge/LKFN Engagement Process
99. The LKFN submits that Enbridge has:
A. failed to meet the minimal standards set in out their own Indigenous Peoples Policy , and have not engaged in “forthright and sincere consultation with Indigenous peoples about Enbridge’s projects and operations through processes that seek to achieve early and meaningful engagement so their input can help define our projects that may occur on lands traditionally occupied by Indigenous peopl B. failed to provide the NEB with adequate information necessary to evaluate whether the Project will cause significant adverse environmental and/or socio-cultural effects; and C. failed to meaningfully consult and accommodate LKFN, or to provide a sufficient basis on which the NEB and other Crown decision-makers could meaningfully consult and accommodate LKFN.
100. The basis of this submission is further detailed below. i) The Duty to Consult
101. The duty to consult arises “when the Crown has knowledge, real or constructive, of the potential existence of the Aboriginal right or title and contemplates conduct that might adversely affect it”.23
102. Prior to making a decision or issuing a license, it is incumbent on Crown decision-makers, including the National Energy Board, to ensure that the duty to consult and accommodate has been discharged in an manner consistent with the honour of the Crown.
103. The court in Halfway River First Nation v. British Columbia (Ministry of Forests) explained:
The Crown's duty to consult imposes on it a positive obligation to reasonably ensure that aboriginal peoples are able to express their interests and concerns, and to ensure that their representations are seriously considered and, wherever possible, demonstrably addressed by the proposed plan of action.24
104. In doing so, “the Crown may fairly consider the opportunities for Aboriginal consultation that are available within the existing processes for regulatory or environmental review.”25 The Supreme Court has confirmed that participation by affected First Nations in a forum created for other
23 Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73 (CanLII) at para. 35; Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), [2004] 3 S.C.R. 550, at para. 25. 24 Halfway River First Nation v. British Columbia (Ministry of Forests), [1999] 4 C.N.L.R. 1 (B.C.C.A.) at para 160. 25 Brokenhead Ojibway First Nation v. Canada (Attorney General), 2009 FC 484 (CanLII), at para. 25. Hearing Order MH-001-2017 and File No. OF-Fac-Oil-E101-2017-07 01 28
purposes, such as an environmental assessment, can fulfil the Crown’s duty to consult, but the issue to be decided in every case is whether an appropriate level of consultation is provided through the totality of measures the Crown brings to bear on its duty of consultation.26 [emphasis added]
105. Further, while Enbridge itself does not have a duty to consult, Crown decision-makers may delegate procedural aspects of consultation to Enbridge to engage with LKFN and demonstrate that it has considered and accommodated LKFN’s concerns.
106. Prior to making decisions which may impact asserted or established Aboriginal and Treaty rights (all of which are at issue here for reasons set out in Sections B and C) the Crown must engage in “deep and meaningful” consultation with the LKFN.27
107. As recently summarized by the Federal Court of Appeal in Gitxaala:
When a strong prima facie case for the claim is established, and the right and potential infringement is of high significance to the Aboriginal peoples, and the risk of non-compensable damage is high, the duty of consultation lies at the high end of the spectrum. While the precise requirements will vary with the circumstances, in this type of case a deep consultative process might entail: the opportunity to make submissions; formal participation in the decision-making process; and, the provision of written reasons to show that Aboriginal concerns were considered and how those concerns were factored into the decision.28
108. Despite these requirements, Crown decision-makers have not consulted with the LKFN at all, despite ongoing efforts by LKFN to raise concerns which it has with the Enbridge proposal. Nor has Enbridge discharged obligations to engage LKFN in meaningful dialogue concerning the proposal, or considered and accommodated LKFN’s concerns.
109. It is LKFN’s expectation that the NEB and Mackenzie Valley Land and Water Board (“MVLWB”) processes will yet provide opportunities for meaningful consultation and accommodation of LKFN concerns, through direction to Enbridge to effectively engage in addressing LKFN concerns, by ensuring that LKFN has a formal opportunity to participate in the decision-making process; and by ensuring that there is a deep examination of how LKFN’s concerns have been considered, and how those concerns have been factored into decision-making.
26 Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43 (CanLII) at para. 56. 27 White River First Nation v Yukon Government, 2013 YKSC 66 at para 128 28 Gitxaala Nation v. Canada, 2016 FCA 187 (CanLII) at para. 174 Hearing Order MH-001-2017 and File No. OF-Fac-Oil-E101-2017-07 01 29
110. LKFN submits that the NEB process may yet offer a meaningful opportunity for LKFN to participate in deep or meaningful consultation regarding the Project and the decision-making by the Crown; but notes that:
1. LKFN’s concerns have not yet been addressed or accommodated; 2. LKFN requires both time and resources to engage in consultations; and 3. LKFN must be able to meaningfully participate in decision-making about the Enbridge proposal with NEB and the MVLWB and other Crown decision-makers in a manner that respects and reconciles LKFN’s rights and title. ii) No Meaningful Opportunities to Consult
111. The legal tests for deep and meaningful consultation have been well articulated in Taku River and other cases by the Supreme Court of Canada. The standards that Crown decision-makers and Enbridge must meet at the deep end of the spectrum are well established in Canadian law. Yet there has been no opportunity for LKFN to participate in deep and meaningful consultations in relation to the Enbridge proposal.
112. Enbridge first brought this proposal to LKFN’s attention in January 2017. As evidenced by Enbridge’s submissions on this matter, they have characterized their proposal as having minimal – even negligible – impacts on LKFN rights and interests.
113. To date, the record demonstrates Enbridge has been far more interested in advancing their construction schedule (initially proposed for May 2018) than attending to the issues and concerns raised by LKFN.
114. Since Enbridge began addressing the Project publicly, its so-called engagement with LKFN has been formulaic, constrained and administrative. There has been no (or nearly no) substantive engagement between Enbridge and LKFN, despite LKFN repeatedly advising Enbridge of its concerns related to the Project. Indeed, Enbridge’s Aboriginal Consultation Log and Issues Summary (Attachment 1 to IR No 2.1(b) and 2.1(c)) demonstrates only the most cursory appreciation or understanding of the issues raised by LKFN, and provides rote and occasionally ridiculous responses to LKFN concerns.
115. The “Aboriginal Consultation Log” submitted to the NEB by Enbridge is little more than an exercise in record-building, filling multiple pages with “consultations” which were in many cases single- paragraph emails, or brief telephone conversations seeking to schedule meetings. In the rare entries which describe actual meetings, LKFN asserts that such meetings are most accurately characterized as ‘visits’, rather than opportunities for substantive technical engagement. LKFN’s references to specific concerns are often omitted or ignored, or “addressed” with platitudes and patronizing proposals. .
116. Most recently, LKFN spoke at a May 24th meeting with Enbridge about the serious concerns LKFN has about the potential impact of the project on the community’s water supply during construction,
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or and on water in the Mackenzie River and other waterbodies which LKFN members rely on as drinking sources when travelling and harvesting on the land in the event of a drilling failure or spill during operations. At that meeting, LKFN also raised numerous other concerns relating to the protection of the land and water. LKFN’s concerns are either not reflected in Enbridge’s Consultation Log or are characterized so as to diminish the importance or significance of the issue.
117. In contrast, Enbridge’s Consultation Log repeatedly and without justification conflates contacts with consultation. For example, the entry for February 22nd records an instance of ‘consultation’. Such ‘consultation’ consisted of a single-paragraph email, providing LKFN with an invitation to an already scheduled open house. This is not consultation – it is merely communication.
118. Nor does Enbridge appear to understand meaningful accommodation. For example, Enbridge appears to believe that a “commitment to provide traffic cones” in their 31 May/17 Summary of Aboriginal Concerns is a deep and meaningful response to the concerns expressed by LKFN members over public safety in the area of the proposed construction zone. This and other examples illustrate Enbridge’s shallow and insincere approach to consultation and accommodation with LKFN, and their failure to discharge the duty to consult or meet the standards of deep and meaningful consultation that are required in relation to their proposal. iii) Efforts by LKFN to Engage Enbridge
119. LKFN accepts that it also has duties to engage in consultation, to participate and consult in good faith, and not to frustrate the good faith efforts of the Crown.29 LKFN understands that it is obligated to express its interests and concerns once they have had an opportunity to consider the information provided by the Crown or by the proponent, and to consult in good faith by whatever means are available to them. LKFN accepts that First Nations “cannot frustrate the consultation process by refusing to meet or participate, or by imposing unreasonable conditions…”30
120. LKFN is participating in the NEB and MVLWB processes in good faith, and endeavouring to meet timelines for submissions. LKFN is also attempting to engage with Enbridge to better understand the project, but that it is doing so without adequate resources and on a schedule that is has been established entirely by the proponent and by the NEB. iv) No Resources Have Been Provided to LKFN
121. LKFN’s ability to review technical documentation, or carry out its own environmental, traditional land use and Indigenous knowledge studies is significantly less than the ability of Enbridge to fund such studies.
122. No process funding has been provided by Enbridge, Canada or the GNWT, and LKFN’s application for participant funding has yet to be determined by the Board. LKFN does not dispute that
29 Haida Nation at para. 42. 30 Halfway River, at para 161. See also Tzeachten at para. 62. Hearing Order MH-001-2017 and File No. OF-Fac-Oil-E101-2017-07 01 31
consultation requires participation, but submits that for the LKFN to participate meaningfully, there must be sufficient resources. There is significant judicial support for LKFN’s position:
In Taku River, the court found there to be adequate consultation, the First Nation was provided funding for a wildlife program to assess the possible impact of development on Aboriginal rights.31
In Platinex v. Kitchenuhmaykoosib Inninuwug,32 the Ontario Superior Court of Justice held that the Ontario Crown was required to consult with a First Nation whose traditional lands were impacted by exploration activities. The Court required a Consultation protocol of which funding by the Province was an element. In that case, the court held that $150,000 in funding for the consultation costs of the First Nation was reasonable.
In Dene Tha' First Nation v. Canada (Minister of Environment) the court ordered the parties to address “the provision of technical assistance and funding to the Dene Tha' to carry out the consultation”.33
Finally, in Ka’a’Gee Tu First Nation v. Canada (Attorney General) (“Ka’a’Gee Tu #1”), although the court held that the Crown breached its duty to consult and it did not have enough information to decide whether the funding provided was sufficient, the court indicated that the issue of adequate funding would have to be considered as part of the court’s analysis of whether the consultation was “meaningful”.34 v) Failure to Respect LKFN’s Consultation Protocols
123. LKFN does not come to the consultation process as a blank slate. In order to best utilize and value the traditional knowledge of the people of LKFN, the “Traditional Knowledge Interim Policy of the Liidii Ku’e First Nation” was drafted in 2003, and has been in use ever since. This policy sets out the uses which may be made of LKFN’s traditional knowledge, how that knowledge can be requested and maintained, and the process which project proponents must undertake in order to engage in the deep and meaningful consultation required by law. To date, none of Canada, the NEB or Enbridge have complied with the process set out in the Policy.
124. LKFN’s view of “meaningful, good faith consultation” incorporates the requirements set out in their Traditional Knowledge Interim Policy, and also requires process funding, two-way information sharing, substantive consideration, discussion and if necessary, negotiation, of all concerns raised by LKFN, and accommodation which arises out of that process. LKFN has sought, and continues to
31 Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), [2004] 3 S.C.R. 550 [Taku River] at para. 12.; Little Salmon/Carmacks First Nation v. Yukon (Minister of Energy, Mines and Resources), 2008 YKCA 13; Gitanyow First Nation v. British Columbia (Minister of Forests) (2005), 38 B.C.L.R. (4th) 57 (S.C.), where the court did not draw a conclusion about consultation, but the underlying facts suggest that adequate funding may be a part if meeting the duty; Hiawatha First Nation v. Ontario (Minister of the Environment) (2007), 221 O.A.C. 113 (S.C.J. Div. Ct.) at para. 33. 32 Platinex Inc. v. Kitchenuhmaykoosib Inninuwug First Nation, 2007 CanLII 20790 (Ont. S.C.J) [Platinex]. 33 Dene Tha' First Nation v. Canada (Minister of Environment), [2007] 1 C.N.L.R. 1 (F.C. T.D.) at para. 135. 34 Ka’a’Gee Tu First Nation v. Canada (Attorney General),2007 FC 763 (CanLII), at paras. 31-36, 128. Hearing Order MH-001-2017 and File No. OF-Fac-Oil-E101-2017-07 01 32
seek, information and resources to conduct the necessary studies and to inform their position on the Application.
125. The colonial system has led to cumulative impacts to the way of life of LKFN, and has contributed to trauma and pain experienced by community members. The colonial system’s pre-Constitutional approval of the pipeline did not respect LKFN’s culture or systems of governance, nor did it require the consultation or consent of LKFN or offer any compensation for construction of the pipeline on their land.
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E. Summary and Recommendations
126. No meaningful consultation or accommodation has occurred.
a) LKFN has a strong prima facie for Dene title to their lands, and has well established Dene rights on their lands. The Crown has had knowledge of these facts for decades, and has knowledge of the threats the Project poses to these LKFN rights. The Crown’s responsibility to ensure the duty to consult and accommodate has been properly discharged has been triggered. b) As LKFN’s case for Dene rights and title is strong, and the risks of non-compensable damage to LKFN rights and title posed by the Project are high, the Crown’s duty to consult and accommodate falls at the highest end of the spectrum. c) Enbridge’s attempts at engaging LKFN have been seriously inadequate and insincere. Enbridge has not discharged its obligation to engage LKFN meaningfully. d) LKFN has been making good-faith efforts to participate in two parallel processes (those of the NEB and the MVLWB) while attempting to engage with Enbridge.
127. Technical funding and engagement is required of Enbridge to ensure that LKFN concerns are considered in respect of the proposal.
e) While LKFN has been available to willing engage with Enbridge, no offer has been made from Enbridge to provide process funding or other support for the research, studies and consultations with LKFN members that are necessary for consultation to be meaningful. As the proponent, it is Enbridge’s responsibility to provide the resources necessary to comply with LKFN’s policies for proponents, and ensure that the consultations are meaningful on both sides.
128. Process support is required from the NEB to enable LKFN to participate in decision-making.
f) NEB has an obligation, grounded in the duty to consult and accommodate, to ensure that the hearing enables LKFN to engage in meaningful consultations. This includes getting full and complete information from Enbridge about the proposal, ensuring that this information is rigourously reviewed in a manner that is accessible and acceptable to LKFN, and supporting the participation of LKFN in this process. g) LKFN has submitted a participant funding request, but has not yet received a response. Delays in the NEB’s response to LKFN’s requests prejudice LKFN’s participation in this hearing, and undermine the consultation process.
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129. Further Information is Required
h) The LKFN requires that a detailed wetland assessment be conducted prior to drilling activities, to provide a baseline for these habitat types, and to identify the extent of damage if a frac-out were to occur, in addition to appropriate emergency response, mitigation and reclamation measures that are warranted. i) The LKFN requires a detailed aquatic assessment to support plans for appropriate emergency management, mitigation and reclamation measures in the event of a frac-out. j) Enbridge should be required to provide contingency, including an environmental impact assessment, in the event of a failed HDD attempt similar to the failed attempt experienced by TransCanada in crossing the Humber River. k) The LKFN requires support and funding to conduct a new Land Use and Occupancy Study. Based on the extensive Project area data collected through the 1996-97 LKFN Land Use and Occupancy Study, a new and current traditional knowledge and land use study is required to adequately assess effects on LKFN rights and interests. Even a cursory review of the Project in relation to the 1996-97 LKFN Land Use and Occupancy Study would reveal numerous examples of Project impacts to land and resource use and associated socio-economic subsistence economy impacts to LKFN members, and adverse impacts to LKFN members because of barriers and challenges to access and/or travel on ROW as a result of the Project. A new and current traditional knowledge and land use study would provide an evidence-based foundation for mitigations for potential impacts to health and safety aspects of wellbeing and risks from construction activities. Such a study would also support mitigations related to the safety aspects of community wellbeing because of construction for temporary transient workers; outsiders to the area in terms of cross-cultural interactions, racism and increased pressure on LKFN resources through outsider transient employees hunting and/or fishing. l) The LKFN requires support and funding to conduct a ground-truthing study regarding LKFN water consumption from land and water users, and the families that live near the ROW. m) The LKFN requires that the ESA describe and assess potential effects on infrastructure and services, including health/social wellbeing from HDD activities, frac-outs and spills. n) The LKFN requires Enbridge to conduct an analysis on the possibility of winter construction, including the risks and benefits of winter construction. To minimize impacts to the environment during construction and on traditional land use interests, winter construction should be seriously considered by Enbridge. This would further protect ungulate calving periods as well as restricted activity periods for migratory birds.
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F. Preliminary Conditions and Recommendations for Project Approval
130. As noted throughout these submissions, LKFN has deep concerns about the potential impacts of the Project. However, in considering how these concerns might be mitigated, LKFN has identified the following preliminary conditions for any orders or enabling the Project to proceed:
a) The LKFN requires clear communication and notification (minimum 21 days) of the finalized construction scheduling be provided to LKFN for distribution to their community, with follow-up communication on a weekly basis for any scheduling changes to address the needs of harvesters who may travel long distances to hunt and then find that the area they are travelling to is subject to construction activity which has disturbed or displaced the wildlife they were planning to hunt.
b) The LKFN requires Enbridge to provide firm commitment on the hiring of LKFN members and procurement services from LKFN-owned businesses.
c) The LKFN requires involvement in pre-construction and construction monitoring for the project, which would include, but is not limited to,: a. Consulting with LKFN monitors and representatives if a frac-out occurs. b. Following clean up procedures immediately. c. Recording any wildlife activity in the immediate vicinity.
d) The LKFN requires funding for an LKFN-led guardian program so that LKFN environmental and cultural monitors are actively involved in monitoring initiatives at all stages of the Project, including pre-construction, construction and operation.
e) The LKFN requires establishment of an LKFN-Enbridge Environmental Management Committee for the life of the Project and the Line 21 facilities within LKFN territory. Establishment of this Committee requires meaningful discussion between LKFN and representatives of Enbridge who have the authority to make decisions at the highest levels; discussions with Enbridge representatives who have only technical expertise and/or limited decision-making authority is inadequate.
f) The LKFN requires a Project and Line 21 facility lifecycle agreement with Enbridge to address human resource needs for monitoring.
g) The LKFN requires Enbridge to demonstrate it is providing capacity supports and a lifecycle agreement for on-going LKFN involvement in emergency preparedness and response.
h) The LKFN requires a royalty and revenue sharing agreement similar to the royalty and revenue sharing agreement in place with upper and lower tier governments.
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Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010.
Dene Tha' First Nation v. Canada (Minister of Environment), [2007] 1 C.N.L.R. 1 (F.C. T.D.).
Gitanyow First Nation v. British Columbia (Minister of Forests) (2005), 38 B.C.L.R. (4th) 57 (S.C.). Hearing Order MH-001-2017 and File No. OF-Fac-Oil-E101-2017-07 01 39
Gitxaala Nation v. Canada, 2016 FCA 187 (CanLII).
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Ka’a’Gee Tu First Nation v. Canada (Attorney General),2007 FC 763 (CanLII).
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Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), [2004] 3 S.C.R. 550.
White River First Nation v Yukon Government, 2013 YKSC 66.
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