1 Duncan's First Nation

Duncan’s First Nation Box 148 Brownvale, Alberta T0H 0L0 Telephone: 780-597-3777

November 14, 2018

Reviewing Officers National Energy Board Suite 210, 517 Tenth Avenue SW Calgary, Alberta T2R 0A8

RE: North Central Corridor Loop (North Star Section 1) Pipeline Project

On October 31 2018, NOVA Gas Transmission Ltd. (NGTL), a wholly-owned subsidiary of TransCanada PipeLines Limited (TransCanada), advised the Duncan’s First Nation (DFN) that it had submitted an Application to the National Energy Board (NEB), under Section 58 of the National Energy Board Act (NEB Act) of the National Energy Board Onshore Pipeline Regulations in relation the North Central Corridor Loop (North Star Section 1) Pipeline Project (the Project).

NGTL advised that it is applying to pursuant to section 58 of the NEB Act for an order approving the construction and operation of the Project. NGTL is also applying for an exemption from the provisions of sections 30(1)(a) and 31 of the NEB Act in respect of the Project. NGTL is also requesting an exemption from the requirements of sections 30(1)(b) and 47(1) the NEB Act to obtain leave to open (LTO) from the Board prior to installing three tie-in assemblies.

In the same communication, NGTL also advised the DFN that it had 14 days from the date of filing to advise the NEB of any outstanding concerns you might have with the Projects. Based on the filing date and factoring in the statutory holiday on November 12th, the DFN submits this within the requested response window. NGTL has requested to have a final decision from the NEB in respect to the Project by June 2019.

This document sets out the DFN’s outstanding issues and concerns in respect to the Project having just been provided with the Project’s Application and supporting environmental and

1 socio-economic supporting information and in advance of government agencies and their experts providing their views and analysis in respect to the Project.

1.0 Project Summary

In its Application, NGTL provides the following basic information in respect to the Project:

is required to be in-service by April 2020 to meet the NGTL System North Central Corridor (NCC) design flow requirements serving the aggregate market demands in northeast Alberta, which have been determined to exceed the capacity of the System in 2020. The NCC design flows are supported by existing Firm Transportation Delivery (FT- D) contract obligations in northeast Alberta;

will transport sweet natural gas starting from NGTL’s existing Meikle Compressor Station in NE 26-094-02 W6M and will end at an existing NCC block valve site (NCCA100-0-BV) located in NW 36-093-24 W5M. The Project will parallel existing disturbances, including the existing NCC (North Star Section) pipeline, for approximately 98% of the Project route;

is located entirely on Crown land within the Counties of Northern Lights and Clear Hills County, located approximately 25 km northwest of Manning, Alberta, and consists of approximately 31 km of 1219 mm (nominal pipe size [NPS] 48) outside diameter (OD) pipe and a launcher facility for the purposes of in-line inspection (ILI) facility.

will require the acquisition of approximately 58 hectares (ha) of new permanent land rights;

will require Temporary Working Space (TWS) for construction workspace, laydown areas, access and log decks will also be required in the amount of approximately 60 ha. Of that, approximately 44 ha is existing disturbance;

will traverse Involves water features including 11 first and second order tributaries to the Hotchkiss River. Trenched Open-cut methodologies are proposed as the primary method for all pipeline watercourse and drainage crossings;

will traverse a Grizzly Bear Zone for the Chinchaga Grizzly Bear Population for approximately 28.9 km and Caribou Range (Chinchaga Herd) for approximately 14.9 km, and

will traverse wetlands including bogs, swamps, fens and marshlands

the Project’s location is depicted in (Map#1- see following page)

2 NOVA Gas Transmission Ltd. Section 58 Application Attachment 7 North Central Corridor Loop (North Star Section 1) Global and Regional Maps

#! ! ! 102 ! PADDLE PRAIRIE METIS ! SETTLEMT. 695¥ CARCAJOU 187 101 ¥ KEG CARCAJOU RIVER ¥695¥ 100 MACKENZIE COUNTY 99 KEMP ! RIVER

! 98

TWIN LAKES 97 COUNTY OF NORTHERN PROPOSED NCC LOOP LIGHTS NORTH STAR SECTION 1 ! ! !" 96 ! 692¥ ! ¥ 95 692 ¥692¥ ¥¥ NOTIKEWIN !### !!! 94 ! ¥35

! ! HOTCHKISS STATION 93 ! HOTCHKISS ¥741¥ 1 7 6 5 4 92 ! 2 25 24 23 22 21 20 19 18 M6 M5

! MANNING NORTHERN CLEAR 691 HILLS ¥¥ SUNRISE 91 NORTH COUNTY STAR COUNTY

! ! 90

¥690¥ DEADWOOD 89 SULPHUR LAKE

RUNNING LAKE 88 743¥ ! ! ! ¥ #!!!" ! ! 87 ¥689¥ DIXONVILLE CLEAR ! HILLS 152C STONEY LAKE ! !

EUREKA 86 RIVER ! ¥986¥ ¥730¥ !

TERMS OF USE: The datasets used to create this map have been gathered from various sources for a specific purpose. TransCanada Corp. provides no warranty regarding the accuracy or completeness of the datasets. Unauthorized or improper use of this map, including supporting datasets is strictly prohibited. TransCanada Corp. accepts no liability whatsoever related to any loss or damages resulting from proper, improper, authorized or unauthorized use of this map and associated datasets and user expressly waives all claims relating to or arising out of use of or reliance on this map.

Project Location Existing NGTL Pipeline City / Town " NORTH CENTRAL CORRIDOR LOOP Delivery Meter Station ATCO Pipeline River / Lake NORTH STAR SECTION 1 PROJECT ! Receipt Meter Station Railway First Nation Land ¯ LOCATION: REVISION: ISSUED DATE: # Compressor Station Primary Highway Metis Settlement 00 18-07-23 Regional Secondary Highway Protected Area COORDINATE SYSTEM: ISSUE PURPOSE: NAD 1983 UTM Zone 11N IFU CARTOGRAPHER: LP 18-07-23 Military Reserve 0 5 10 20 30 km REVIEWER: DL 18-07-23 County MAP NUMBER: APPROVER: JY 18-07-23 Not all legend elements may appear on the map T_0095_0003_02

October 2018 Page 2 of 2

Map#1: NGTL North Star#1 Project Location

(Source: NGTL Application: October, 2018)

3 2.0 The Treaty Rights of the Duncan’s First Nation

The Duncan’s First Nation is an Indian Band within the meaning of the Indian Act, R.S.C. 1985, c. 1-5 as amended, and is an aboriginal people within the meaning of section 35 of the Constitution Act, 1982 and is the successor to an aboriginal group adherent to Treaty#8. The DFN currently has three reserve parcels on the west and east side of the Peace River, near the Town of Peace River. It has unresolved specific claims in relation to other lands within the Peace River region.

The DFN has a long-established presence in north-western Alberta and north-eastern British Columbia. The DFN is a nation and a community comprised of the Dunne-Za or Beaver and Cree cultures and speaking people. At the time of contact, the ancestors of the DFN were present, occupying and in possession of territory centered on the Peace River valley.

Some of the ancestors of the DFN adhered to Treaty#8 at Peace River Landing with Crown representatives. Given, that only some of the DFN’s ancestors adhered to the treaty, we assert that that present-day people of DFN hold and exercise both treaty and aboriginal rights and title in Alberta and British Columbia. The present-day families of the DFN are the descendants of the original Beaver and Cree people that were present in the Peace River region and some of those that adhered to the treaty.

At the time of contact the Duncan’s ancestors had a well-established way of life and economy in the Peace River region and Peace River valley. In the pursuit of this way of life, the ancestors of the Duncan’s supported themselves in a variety of ways, by fishing, hunting and plant and earth material gathering, as well as through participation in trade, with other Indigenous People and with Europeans, of a variety of material goods, including furs, wood and the products of hunting, fishing and trapping.

The Duncan’s people way of life depended on the availability of and access to preferred lands, waters and natural resources of sufficient quality and quantity to maintain the traditional seasonal harvesting cycles. The Duncan’s way of life also depended on the ability to pass knowledge about the traditional seasonal harvesting cycle, traditional hunting, trapping, fishing and gathering practices and spiritual as well ceremonial beliefs and practices to successive generations. The knowledge of Duncan’s way of life was passed to successive generations orally, through cultural and spiritual practices, and through participation in traditional hunting, trapping, fishing and gathering practices which depended on the availability of and access to preferred lands, waters and natural resources.

As part of their usual practices carried out before and at the time of signing the Treaty#8, the Duncan’s people hunted, trapped and fished a wide range of animal, bird and fish species for subsistence, and for cultural, social and spiritual needs. Certain species were of greater significance to fulfill these needs, but all species were important to our way of life.

Treaty 8 was made between the Crown in Right of Canada and various aboriginal peoples in June 1899 at Lesser Slave Lake. Subsequent to the initial signing, the Crown gathered adherent nations into Treaty#8 by a series of Crown expeditions for that purpose into further-reaching parts of the territory which the Crown wished to open for settlers. Some of the Duncan’s ancestors adhered to Treaty#8 at Peace River Crossing in 1899. The Provincial Crown was not a signatory to Treaty#8 but holds the duties and benefits of such treaties.

4 Through oral promises of the parties and the written terms of the Treaty#8, the treaty established a set of reciprocal rights and obligations owed by the Crown to the indigenous signatories, including the ancestors of Duncan’s people. The treaty also provided rights to carry out activities incidental to the exercise of the hunting, fishing and trapping rights including (but not limited to):

• rights to unrestricted access to preferred lands and waters of a sufficient quality and quantity necessary to exercise rights within their traditional lands;

• rights to sufficient and culturally appropriate land and resources to support the exercise of rights;

• rights to participate in the management of natural resources within their traditional lands;

• rights to gather various natural resources, including plants and berries, within their traditional lands;

• rights to establish the infrastructure necessary to exercise rights, including by building trails, cabins, camps, traps; and

• rights to maintain and access sites where Duncan’s People culture and way of life can be taught to subsequent generations.

The true nature and spirit of Treaty#8 and the intentions of the signatories are important to the matter of DFNs’ rights and the GOA’s interpretation of its responsibilities under the treaty and policies flowing from the Crown’s obligations. The following case law has relevance and must be given due regard by the GOA in the matter of this Project:

• As noted in R. v. Badger, [1996] 1 S.C.R. 771 at paras. 39 and 55, the aboriginal signatories and later adherents had a strong interest in securing their traditional livelihood. The written terms of the Treaty referred to these traditional activities as “their usual vocations,” which included hunting, trapping and fishing (Badger at para. 31). Oral promises made by the Crown supplemented this essential element of the Treaty: the aboriginal signatories and adherents “would be as free to hunt and fish after the treaty as they would be if they never entered into it,” with the geographic exceptions of “such tracts as may be required or taken up from time to time for settlement, mining, lumbering, trading or other purposes” and within limitations placed by government conservation regulations (Badger at paras. 39-40).

• [The Crown sought to secure this land for settlement (Badger at para. 39) while expecting that the First Nations’ “means of earning a livelihood would continue after the treaty as existed before it” due to the lands’ overall unsuitability for agriculture (Mikisew Cree at para. 30; Badger at para. 55).

• The language of the Treaty foreshadowed change and provides a framework for managing relations and changes in land use (Mikisew Cree at paras. 31, 27 and 63). The lands over which signatory aboriginal groups could pursue their “usual vocations” were not “from a practical point of view” the entire expanse of Treaty 8 but their respective traditional territories within the larger expanse (Mikisew Cree at paras. 47 and 48).

The below map depicts the Project’s location relative to DFN’s two reserves situated on the west side of the Peace River. In terms of linear distance, the Project is located approximately 80KM and 110KM from DFN’s reserves on the west side of the Peace River. DFN’s reserve at Brownvale is where the main body of the community resides. The community utilizes and stays at the Clear Hills 152C reserve and utilizes it as a base for hunting and camping to the north. (Map#2-See Below)

Map#2: Project Relative to Duncan’s First Nation Reserves

The Project is located within and traverses the identified Traditional Territory of the DFN. A map demarcating the approximate boundaries of DFN’s Traditional Territory is attached. (See Map#3 - Next Page)

Map#3 was produced in 2012 based on the information that DFN had available at the time that documents the community’s exercise of rights and its current use of lands and resources for traditional purposes. The DFN is currently in the process of updating this information through additional research which will confirm other lands and waters used by the DFN in the exercise of its rights and traditional and cultural practices. DFN will transmit this to NGTL, the NEB and Government of Alberta permitting agencies when ready.

Map #3 Approximate Boundaries of DFN’s Traditional Territory as Identified in 2012

2.1 Rights Exercised and Land and Resource Use in the Project Area / Areas in the Vicinity

While DFN holds collective treaty rights, those rights are actively exercised on the ground by its community members in ongoing and varied ways. The DFN has never been afforded the opportunity to conduct a comprehensive Rights, Traditional Land and Resource Use or Indigenous Knowledge study that involves and tracks the land use activities and patterns of all of its members.

With that said, it has with limited resources, been able to undertake two surveys in the past decade. This includes a survey conducted in 2009 and one conducted in 2011. Further, an additional Ethno-Historical Review was conducted in 2011 to capture the historical use and occupancy of the Peace River region by the ancestors of the DFN and ongoing use and occupancy up into the present time. These studies reveal the exercise of rights and ongoing community utilization of lands and resources and confirm that the Project area is actively and currently used for a range of sustenance, livelihood, cultural and spiritual purposes by the DFN.

The DFN is currently undertaking a review of the information contained within the above noted studies and intends to provide a synthesis of relevant information to NGTL, the NEB and Government of Alberta permitting agencies in December 2018.

The Crown should take these studies (and other relevant information provided by the DFN) into account as part of its decision-making vis a vis this Project, and further, provide demonstrable evidence of how it weighed, considered, took into account and applied this directly relevant information to the Project’s review and assessment of potential impacts to DFN’s rights.

The DFN has collected and documented examples of the exercise of hunting, fishing, harvesting / gathering and camping in the Project area and areas in the vicinity of the Project. The following briefly summarizes the high – level but directly relevant findings of these research efforts:

2.2 DFN 2009 Traditional Land Use Study Summary

Community Participants

As a matter of practice, DFN does not identify community participants’ names that take part in community based traditional land use research. However, the DFN does so here given the important contributions of those elders, community members and families:

Stanley Testawich Elmer Lepretre Melvin Lawrence Delmer Knott

Dave Cardinal Nora Grey Julie Knott Audrey Lawrence

Cory Lawrence Delvin Mooswah Ashley Testawich Denise Testawich

Tony Testawich Jim Fern Dennis Knott Leslie Knott

Bobby Lawrence Michael Lawrence Gail Rasmuson Dakota Testawich

8 Jimmy Testawich Michael Fern Dorothy Knott Dwayne Lepretre

Chris Lawrence Darcy Mooswah Devin Redhead David Testawich

Ricky Testawich

The DFN notes that since the 2009 study, it has sadly lost some of the individuals that contributed information to this community research effort.

Traditional Trails and Contemporary Access Corridors

Study participants identified several primary trails that had been, or continue to be, used for resource access and procurement purposes:

• from Grouard, through the William Mackenzie Reserve, over to Peace River, then to this Duncan’s reserve, then over to the Gage reserve • along the north bank of the Peace River to Dunvegan, then up to the Gage reserve (east of Hines Creek, about half way between Hines Creek and Fairview) • from Gage, west to Worlsey, then over to Ft. St. John • from Gage, north through the Clear Hills reserve, over the upper part of the Whitemud, Rambling Creek, the Notikewin River, the Chinchaga and up to the Hay Lakes • north of the town of Peace River, along the east side, inland at Three Creeks, up through Carmon Creek over the Cadotte River, over the Wolverine River then up

Wildlife and Fish Species Utilization

Community participants reported that they have hunted, caught, consumed and exercised their rights in relation to the following species:

Moose Elk Caribou Deer Black Bear Ducks

Geese Partridge Crane Marten Weasel Lynx

Rabbit Beaver Coyote

Jackfish Rainbow Tr. Dolly Varden Grayling Walleye Trout

Goldeye Lingcod Bull Trout

9 Key Resource Use Areas with DFN Traditional Territory

Participating community members reported that they have hunted, trapped and gathered plant and earth materials in the areas the deemed central to their way of life, culture and ability to feed their families:

South of DFN I.R.

• between Grouard to Ft. St. John and as far north as Hay Lakes • on the islands and banks of the Peace River

North of DFN I.R.

• the west side of the Peace River (north of Weberville and Highway 98) • on the islands and banks of the Peace River • between Dixonville, Deadwood and Manning • north to Manning (confluence of the Whitemud and Peace Rivers) • north at the top end of the Chinchaga • the Paddle Prairie area; • the shores of Cardinal Lake and the area between there and the Duncan’s reserve

West of DFN I.R.

• west of Spirit River; • on the islands and banks of the Peace Rivernear the BC border and across the BC border, west of Worsley and Bear Canyon • from Hines Creek and Cardinal Lake up to Notikewin River and Rambling River in the north (including the Notikewin Tower area that stretches from the South White Mud Lake – Rambling River to the west over to Cub Lake and Flood Lakes in the east)

East of DFN I.R.

• from DFN IR #151 to the Peace River • west of the William McKenzie Reserve • south of the William Mckenzie Reserve • north of the William McKenzie Reserve towards Seal Lake, Heart River and Harmon Valley and far south as Kimiwan tower.

10 Key Fishing Areas with DFN Traditional Territory

Participating community members reported that they have fished in the following areas, locations, lakes, rivers and creeks with DFN’s traditional territory:

• the confluence of the Peace River and the Smoky River • the confluence of the Whitemud River and the Peace River • the confluence of the Carmon River and Peace River • the confluence of the Cadotte River and the Peace River • the confluence of the Notikewin River the Peace River • on the Peace River at areas near Manning • on the Peace River at the Shaftesbury Ferry Crossing • on the Peace River at Elk Island or Camp Island • at the confluence of Boucher Creek and the Peace River • on the Peace River upstream and downstream of the Dunvegan bridge • on the Peace Riverupstream of Hamelin Creek on the Peace • at the confluence of Montagneuse Creek and the Peace River • along the Peace River, at the ‘Flats’, and • on the Peace River near the border where netting takes place • Figure 8 Lake • Sulphur Lake • Running Lake • Haig Lake • Snipe Lake east of Valley View • Twin Lakes • Whitemud River • Notikewin River

The resulting data from the above research effort with individual community members was converted into Map Biographies then plotted on maps. This effort was undertaken with the intent of identifying key resource use and utilization areas within the Lower Peace Region. The combined / collective use and utilization areas for the 2009 research effort is depicted in the following map. (Map#4 – See Next Page)

Map#4: Examples of DFN Exercise of Rights / Current Use of Lands and Resources:2009

12 The 2009 research effort demonstrates the ongoing exercise of rights, the use of lands and resources for traditional and cultural purposes being undertaken directly in the Project area and the area that will play host to the Project. Based on the 2009 survey, there is a high potential for the Project to directly, indirectly and cumulatively interact with and directly impact the rights and livelihood and cultural needs of the DFN.

2.3 DFN 2012 Traditional Land Use Survey

In 2012, DFN opted to build on the 2009 study by undertaking another form of map-biography survey utilizing the approach and method as advocated by Mr. Terry Tobais as set out, in what is the first academic text on traditional use studies entitled, ‘Living Proof: The Essential Data- Collection Guide for Indigenous Use-and-Occupancy Map Surveys’.

While Tobais advocates that every First Nation and TLRUS practionner should chart their own research course, he in fact advocates a very prescriptive approach and little deviation with his preferred methodology and exacting rules. In contrast with other approaches and models, his method produces maps demarcating examples of traditional land and resource use sites identified by participating community members. Given that this was the only academic text and guide available at the time, the DFN opted to implement its key research features and recommendations.

Over the course of the research project, up to forty-six DFN community members were interviewed on a one-on-one basis with a set questionnaire. Interviews were recorded and example land and resource sites were marked on individual map biographies or Bio-Maps. Overall results for the community were aggregated from the Bio-Maps into a series of end mapping products including Category Maps, Thematic Maps and an All Sites Map.

At project end, the DFN interviewed 46 respondents out of 284 community members translating into a response rate of 16.9% and a participation rate of 92%. TLUS projects should aim to achieve a 70 – 80% response rate, thus DFN did not achieve this benchmark and the survey results cannot be held to be representative of the community as a whole. With that said, the DFN did identify and demarcate up several thousand examples of traditional land and resource use sites in BC and Alberta.

Examples of Community Traditional Land and Resource Use Sites

During the interviews, community participants identified and demarcated specific the following types of traditional land and resource use sites:

Wildlife Kill Sites

Moose Elk Mule Deer White Tailed Deer

Caribou Black Bear Grizzly Bear Other Mammals

13 Ducks Grebes Grebes Grouse

Cranes Ptarmigan Other Birds

Fish Catch Sites

Walleye Jackfish Dolly Varden Rainbow Trout

Bull Trout Whitefish Gold Eye Grayling

Ling Cod Other Fish

Plant and Earth Material Harvesting Sites

Berries Food Plants Medicine Plants Sacred Plants

Construction logs Fire wood Drinking water Specialty rock

Other plant/earth material site

Overnight Sites

Cabin Site Tent Site Lean-to Site Other Overnight Site

Cultural Sites

Birth Site Old Settlement Site Sacred Site Burial Place Site

Cache Sites Other Cultural Site

The resulting data from the above research effort with individual community members was then converted into Map Biographies then plotted on maps. This effort was to initially determine examples of site specific, on the ground utilization of lands and resources by DFN members.

14 The study makes the important point to readers and users that the resulting data - that is data points, convey one aspect of use. For example, a data point depicting where a given DFN member killed an animal is important. Of greater importance, is the fact that the data point provides on the ground proof or verification of DFN members hunting in the area and depending on that host landscape to support their right and ability to hunt. The treaty right and cultural practice of hunting does not merely occur at a specific site or is merely isolated to the specific location of where an animal was shot. Rather, DFN community members need and utilize a much broader area in the pursuit of hunting.

This includes:

• Travelling to / accessing an area where the hunt is intended; • Travelling through an area to scout for game, read and consider wind, weather, temperature conditions to determine if there is chance of success in the area; • Determining if too much disturbance and human activity is present to negate potential success of the hunt; • Scouting / scanning for wildlife and observing wildlife sign; • Finding recent wildlife trails and following those trails through the bush; • Investigating and travelling through the bush to sources of water where animals can be found; • Siting and stalking the game; • Shooting and taking the game; • Offering prayers and making an offering for the animals spirit that provided its life to help the hunter and their family, and • Processing the kill for transportation back to the community or a camp where the animal is butchered and or dried as is often the custom of DFN members

A different set but similar pattern of criteria supports plant harvesting and gathering and fishing. The point is that DFN’s Treaty rights are not exercised on or relegated to specific sites. Rather, they are dependent on a related set of factors and criteria that must be present to support community members in their cultural practices and traditional livelihood pursuits. The combined / collective use and utilization areas for the 2011 research effort is depicted in an attached PDF map. (Map 5 – See following page)

Map#5: Examples of Exercise of Rights / Current Use of Lands and Resource by DFN Members 2011 Traditional Land and Resource Use Survey

16 The 2011 research effort demonstrates the ongoing exercise of rights, the use of lands and resources for traditional and cultural purposes being undertaken directly in the Project area and the area that will play host to the Project. Of interest and note is the high degree of spatial correlation between distribution of data between the 2009 and 2011 studies, which demonstrates the existence of mutually supporting data resulting from two distinct research streams and methods.

Based on the 2011 survey, there is a high potential for the Project to directly, indirectly and cumulatively impact the rights, livelihood and cultural needs of the DFN.

2.4 DFN 2012 Country Food Harvest Survey

Additionally, in 2012, the DFN opted to undertake a country food harvest survey or harvest survey. This research clarified valued species relied upon by the community for sustenance purposes and those country foods that have and continue to address a key socio – economic, livelihood, and cultural needs of and value to the DFN. The DFN opted to use a survey model and template based on the ‘Nunavut Wildlife Harvest Survey’, planned and executed with some modifications.

The DFN retained a community member to undertake the 25 surveys on a one–on–one basis with the identified head of each household. A sound balance of gender and age groups was achieved among the selected respondent group. Overall, the recognized or designated heads of households were invited to participate. The 25 respondents that participated reported on the consumption patterns of up to 86 people within the DFN community (on reserve). The interviews took place through August and September of 2012. The same questionnaire was administered in every interview to ensure that every question was asked of the same respondent in the same way. Respondents were asked to report on their consumption of country foods within the past year or over past three years.

The results of the 2012 DFN Country Food Harvest Survey can be summarized as follows:

Households Reporting the Use of the Following Plants and Earth Materials

• Berries (Undetermined)- 19 • RatRoot-6 • Mint-4 • Labrador Tea – 4 • Saskatoon Berries – 4

17 • Wild Strawberries -3 • Wild Rhubarb – 2 • Blueberries – 2 • Cranberries – 2 • Herbs (Undetermined) 2 • Diamond Willow – 2 • Dandelion – 2 • Rosehip – 2 • Red Willow – 1 • Chokecherry – 1 • Birch – 1

Preferred Wildlife Species Consumption Reported by Household

• Moose – 25 • Elk–19 • Rabbit – 15 • Chicken – 15 • Deer – 15 • Duck – 10 • Bear–9 • Caribou-8 • Geese – 5 • Ducks – 2 • Birds – 1 • Porcupine – 1 • Beaver -1

Wildlife / Game Consumption Statistics

Total Reported Meals Per Week Containing Wildlife for All Surveyed Households:93.50

Total Reported Meals Per Year Containing Wildlife for All Surveyed Households: 4120

Total Reported Wildlife Consumed by All Surveyed Households by Weight: 1546.50 oz. / week or 96.65 lbs.

Total Reported Wildlife Consumed by All Surveyed Household by Weight: 80,415 oz. / year or 5025.93 lbs.

18 Reported Fish Species Caught – By Household

• Whitefish – 15 • Northern Pike / Jackfish – 15 • Walleye / Pickerel – 8 • Trout – 5 • Grayling – 1 • Burbot – 1

Fish Consumption Statistics

Total Reported Meals Per Week Containing Fish for All Surveyed Households: 25

Total Reported Meals Per Year Containing Fish for All Surveyed Households: 1456

Total Reported Fish Consumed for Households by Weight: 520 oz. / week or 32.5lbs.

Total Reported Fish Wildlife Consumed for Households by Weight: 26,870 oz. / year or 1,679,37 lbs.

Total Protein (Wildlife and Fish) Intake for Surveyed Households by Week / Year

Total Reported Protein (Fish and Wildlife) Intake for All Surveyed Households: 2404 oz. / week or 150.25 Ibs.

Total Reported Protein (Fish and Wildlife) Intake for All Surveyed Households: 91,684 oz. / year or 5736.25 lbs.

Perceived Most Favorite / Consumed Country Foods in Community

• Moose – 24 • Berries – 15 • Fish – 14 • Elk-7 • Chicken – 5 • Deer-4 • Duck–2 • Rabbit – 2 • Wild Potatoes – 2 • Caribou – 1

19 Perceived Most Favorite Country Foods for Youth/ Consumed by Youth in Community

• Moose – 22 • Berries – 15 • Fish–5 • Chicken – 3 • Elk–2 • Deer–2 • Rabbit – 1 • Wild Potato – 1

Top Reasons for Continuing to Consume Country Foods by Surveyed Household:

• Healthier / Promotes Health and Well Being – 14 • Cost / Cheaper Than Store Bought Foods – 11 • Part of Culture and Way of Life – 10 • Spirituality – 1 • Readily Available – 1

Access to Country Foods

• 15 Households Reporting That They Do Not Consume as much Country Foods as They Would Like • 10 Households Reporting That They Are Consuming as much Country Foods as They Would Like

Top Cited Barriers to Hunting by Household

• Difficult to Access Good Places – 11 • Changes in Population and Abundance – 10 • Cost–9 • Limited Time – 6 • Lack of Equipment – 4 • Broken Equipment – 3 • Employment – 1

Top Cited Barriers to Fishing by Household

• Water Quality / River Condition Concerns – 5 • Changes in Population and Abundance – 5

20 • Concerns re Contamination and Pollution – 4 • Difficult to Access Good Places – 3 • Cost–3 • Lack of Equipment – 2 • Limited Time -1 • Broken Equipment – 1

This harvest survey is important as it further underscores the spatial research traditional land and resource use surveys of the 2009 and 2011. It goes further in providing some level of qualitative information about the ongoing use of lands, waters and resources by the community and the high degree of reliance on traditional lands and resources by a sizable population of the community.

The DFN notes that there is some difference of opinion amongst researchers as to whether harvest surveys are adequate or appropriate for measuring community reliance and the values placed on food and commodities sourced from the land by the community. However, as a starting point, this survey shows that DFN still relies its traditional territory to meet its sustenance, livelihood and cultural needs and the Project area and its hosting environmental plays an important role in fulfilling those needs.

2.5 Updated Rights and Current Lands and Resource Use Information

The DFN wishes to highlight that NGTL has provided some funding to the DFN to support the conduct of additional rights and current use lands and resource use research specific to the Project and the Project area. Following a few administrative / family setbacks within the community, the DFN was able to implement the field work portion in September, 2018. The DFN also notes that it put a temporary hold in its research efforts as it had constructive knowledge of other projects that the NGTL was forwarding in the same area. The DFN waited for a time to determine whether it would be able to combine field work for North Star#1 and other proposed NGTL projects in immediate and adjacent areas. When DFN realized that more time was going to be needed to confirm whether the other NGTL projects would be proceeding, it opted to move forward with the field work. That resulting data and information is currently being reviewed and will be submitted in a report to NGTL and the NEB as of the end of December 2018. In summary, the report will present information on the following topics:

• The exercise of rights in the Project area and areas in the vicinity of the Project;

• Current and ongoing use of lands and resources in the Project area and areas in the vicinity for traditional purposes;

• The utilization of the area for the practice, maintenance and transmission of culture;

• Use of the Project area and areas in the vicinity of the Project for moose, elk, duck and geese hunting;

• Use of the Project area and areas in the vicinity of the Project for fishing of species that are available;

• Use of the Project area and areas in the vicinity of the Project for the harvesting and gathering of berries and plants for sustenance, medicinal and cultural purposes;

• Use of the Project and areas in the vicinity for activities incidental to the right to hunt such as building and utilizing camps;

• The concern / interest that the DFN community has in relation to the dwindling caribou herds and declining caribou habitat in the Project area and areas in the vicinity of the Project;

• The interest of the DFN in Grizzly Bear as a species of animal that plays an important role in the regional eco-system and is of cultural significance to the DFN community;

• That due to the intense level and amount of development that has occurred around the DFN community, DFN community members have to travel greater distances from the community to now have some level of success in fishing, hunting and harvesting. One of the areas that continues to be of critical cultural importance and that contains critical cultural values to the community is the area that lies to the north of the DFN’s Clear Hills reserve, areas around Sulphur Lake and the areas up to and including the Chinchaga valley, and

• That the Project area, areas in the vicinity of the Project and above noted areas have an increased, unique and critical significance as they contain some of the remaining core areas or areas that have been less impacted by oil and gas development, forestry, agriculture, linear developments and access roads. As a result, community members are increasingly heading into these areas given that they have a better success in hunting, fishing, harvesting, gathering and are less harassed, hemmed in and impacted as they now do in other areas of their Traditional Territory.

3.0 Procedural Concerns of the Duncan’s First Nation

The Board and NGTL are well aware of the numerous issues that have been raised by various parties and groups in respect to the existing regulatory regime, the National Energy Board Act, the Canadian Environmental Assessment Act 2012 (CEAA2012), associated environmental protection legislation and consultations undertaken in support of major project reviews. A key theme raised by Indigenous groups and First Nations has been the extent to which the current regulatory regime, EA approach and methodology contained in regulatory guidance and consultation requirements diverge from the principles and directives emerging through the common law.

22 This debate in part gave impetus to the recently completed federal review and consultations in relation to environmental assessment and environmental protection legislation and policy and was a clearly a main driver in the introduction of Bill 69 - the Canadian Impact Assessment Act (CIIA). The Project has been proposed and will be reviewed under the existing regulatory regime and CEAA2012 rather than be subject to CIAA which it is expected be in force in early 2019.

The Government of Canada itself highlights the deficiencies with the current regulatory system and consultation process that will apply to the Project in describing the essential features and characteristics of the new process and regime to come into effect in several months’ time which is to require, include and incorporate:

• Proactive strategic and regional assessments would evaluate big-picture issues (e.g. climate change, biodiversity, species at risk), the cumulative effects of development and provide context for impact assessments.

• An early planning and engagement phase for all projects would build trust, increase efficiency, improve project design, and give companies certainty about the next steps in the review process.

• Indigenous engagement and partnership throughout the process.

• A move from environmental assessments to impact assessments based on the principles of sustainability.

• Assessments would consider a whole range of potential impacts to understand how a proposed project could affect not just our environment but also health, social and economic issues over the long term.

• The legislation requires an assessment of the impacts of a project on Indigenous peoples and their rights

• Decisions would be based on whether a project with adverse effects within federal jurisdiction are in the public interest. Public interest determination would be guided by:

Ø Project’s contribution to sustainability Ø Extent to which these effects are adverse Ø Measures to mitigate adverse effects Ø Impacts on Indigenous groups and on their rights Ø Impact on Canada’s ability to meet its environmental obligations and climate change commitments

• We would make sure decisions on projects are guided by robust science, evidence and Indigenous traditional knowledge.

• Government scientists would review any studies provided by companies, and independent scientific reviews would be done when there is strong public concern, or the results of a study are uncertain.

23 • It would be mandatory to consider and protect Indigenous traditional knowledge, if provided, alongside other sources of evidence.

• We would make federal science open by default and available online. We would create an Open Science and Data Platform that would provide a user-friendly interface for accessing data related to cumulative impacts, impact assessments, strategic assessments and regulatory processes.

• Regional assessments would be undertaken to guide planning and management of cumulative effects, identify the potential impacts on the rights of Indigenous peoples, and inform project assessments.

• Participant funding programs would be enhanced to support the participation of the public and Indigenous peoples. This includes expanding eligible activities, increasing funding levels, and enhancing the process to reduce administrative delays.

• Creating opportunities for Indigenous partnerships and collaboratively developing monitoring programs.

• Greater use of plain-language and accessible information, including scientific evidence.

• There would be no requirement for individuals to meet specific criteria to participate as part of the assessment process (no more “standing test” or “interested party” requirements).

• Early and inclusive opportunities for engagement and participation at every stage, in accordance with a co-developed engagement plan, with the aim of securing free, prior and informed consent through processes based on mutual respect and dialogue.

• Legislative requirement to consider potential impacts on Indigenous rights and culture in assessments and in decision-making on projects.

(Source: Government of Canada: Better Rules for Major Project Reviews to Protect Canada’s Environment and Grow Canada’s Economy, A Handbook, 2018)

Given the woeful inadequacies of the current EA based system and the extolled features and improvements of the system to be as described by the Government of Canada, it does beg the question of whether the public interest and the DFN’s rights and interests would be better served by a review under the existing of the new regime that will be in effect in a matter of weeks. The DFN may opt to raise views and an argument on the matter of whether such a major undertaking should be reviewed under the former statutory scheme or the pending regime.

Further, the DFN understands that a key responsibility of the Board is determine whether the relief requested is justified and whether all components of the Project are actually needed at this time and can be held to be in the public interest. If DFN does come into possession of supporting information, data and testimony that indicates that the proponent is attempting to “rush” unnecessary pipeline and infrastructure components through at this time, it will have no choice but to conclude that the proponent is attempting to circumnavigate the new federal assessment process, which would represent and abuse of process and sharp dealings by a key

24 party the bears duties and plays an important in the consultation process. Such an action would prove fatal to any approval or a CPCN issued by the Board.

Setting aside the matter of whether the Project should be reviewed under the existing or incoming regime, the DFN believes that Project review must be guided by the principles and directions contained in recent Supreme Court of Canada (SCC) decisions in Clyde River (Hamlet) v. Petroleum Geo-Services Inc., 2017 SCC 40 (“Clyde River”) and Chippewas of the Thames First Nation v. Enbridge Pipelines Inc., 2017 SCC 41 (“Chippewas”).

DFN respectfully asserts that Crown agencies, NEB and the proponent will need to give regard to, adhere to and demonstrably implement the key principles and directives within “Clyde River” and “Chippewas” including:

• the NEB acts on behalf of the Crown and where a decision by a regulatory tribunal may adversely affect an Aboriginal or Treaty right, the approval process itself can constitute Crown conduct that triggers the duty to consult (Clyde River at para. 27; Chippewas at para. 29).

• the NEB’s ability to make final decisions is itself Crown conduct which triggers the duty to consult, and the NEB’s contemplated decisions, whether on project approvals or exemptions, can trigger consultation (Clyde River at para. 39; emphasis in original; and Chippewas at para. 31, respectively).

• the Crown may rely on regulatory processes to partially or completely fulfill its duty to consult on potential impacts to Aboriginal and Treaty rights (Clyde River at para. 1; Chippewas at para.1), however, the Crown is ultimately responsible for ensuring that consultation is adequate (Clyde River at para. 22).

• the question of whether the Crown is able to rely on steps undertaken by the regulatory agency to fulfill its duty to consult, in whole or in part, depends on whether the agency’s statutory duties and powers enable it to do what the duty requires in the particular circumstances (Chippewas at para. 32; Clyde River at para. 30).

• where the regulatory process being relied on does not achieve adequate consultation or accommodation, “the Crown must take further measures to meet its duty” which could include filling any gaps, through legislative or regulatory amendments, making submissions, requesting reconsideration or seeking postponement to allow for a separate process for further consultation before the decision is rendered (Clyde River at para. 22.).

• if the regulatory agency does not provide adequate consultation and accommodation, or its statutory powers are insufficient in the circumstances, “the Crown must provide further avenues for meaningful consultation and accommodation in order to fulfill the duty prior to project approval. Otherwise, the regulatory decision will not satisfy constitutional standards and should be quashed on judicial review or appeal” (Chippewas at para. 32).

25 • if the Crown’s duty to consult has been triggered, a decision maker may only proceed to approve a project if Crown consultation is adequate (Chippewas at para. 36). As such, when a regulatory agency like the NEB is the final decision maker, the key question is whether the duty to consult is fulfilled prior to project approval (Chippewas at para 36, and Clyde River at para. 39).

• This also means that where further avenues for meaningful consultation and accommodation are required to provide adequate consultation, beyond what the regulatory agency is able to provide, the Crown must provide these opportunities prior the project approval to fulfill the duty to consult (Chippewas at para. 32). • The Supreme Court held that a decision to authorize a project “cannot be in the public interest if the Crown’s duty to consult has not been met” (Clyde River at para. 40; Chippewas at para. 59).

• Furthermore, where the duty to consult remains unfulfilled, the final decisions on project approvals by regulatory agencies cannot proceed since – “[a] project authorization that breaches the constitutionally protected rights of Indigenous peoples cannot serve the public interest” (Clyde River at paras. 39 and 40). In making this ruling, the Court confirmed that the public interest and the duty to consult do not operate in conflict (Ibid. at para. 40).

(Source: JFK Law Corporation website: July, 2018)

In addition, in Clyde River, the Court said that “the duty to consult, being a constitutional imperative, gives rise to a special public interest that supersedes other concerns typically considered by tribunals tasked with assessing the public interest” (Ibid.). In Chippewas, the Supreme Court also confirmed Carrier Sekani, that the constitutional dimension of the duty to consult gives rise to a special public interest that surpasses economic concerns (Ibid. at para. 59). The purpose of accommodation is to balance these interests with a view toward reconciliation (Ibid. at paras. 59 and 60).

In its decisions, the Supreme Court identified a number of circumstances that may indicate whether consultation has been adequate in a regulatory proceeding. Factors which may indicate inadequacy, depending on the scope of consultation required, include: (Clyde River at paras. 45 and 66)

• lack of participant funding • unresponsiveness of the proponent to answer basic questions about the impact of the project • limited opportunities for participation • lack of oral hearing • information that is inaccessible to the Indigenous group, including because of limited resources to obtain and review that information, or because the information is not provided in an accessible way (i.e. large files and slow internet; lack of Indigenous language translation) • Crown failure to communicate its intention to rely on a regulatory process to fulfill consultation • consultative inquiry misdirected at assessing environmental effects rather than impacts to rights.

26 By contrast, factors that may indicate the sufficiency of a regulatory consultation process, include: Chippewas at paras. 52 and 57; Clyde River at paras. 41, 42 and 45)

• an oral hearing • early notice of the hearing process – inviting formal participation • an opportunity to make formal submissions • ability to pose formal information requests and receive written responses • provision of funding that allows a First Nation to participate, and prepare and tender evidence – including an expertly prepared traditional land use study • an assessment of impacts to rights – not just an assessment of environmental effects • ability to make closing oral submissions • accommodation measures that are designed to minimize risks and respond directly to the concerns raised by affected Indigenous groups, and • written reasons that describe how the rights and interests of Indigenous people were considered and addressed.

(Source: JFK Law Corporation website: July, 2018)

Given that this Project appears to be destined for review under the current regulatory regime and associated consultation steps set out in the NEB Filing Manual and federal consultation guidelines, the DFN does question how the Board will deal with one of the central outcomes and directives arising from “Clyde River” which is that NEB must direct it’s inquiry to the potential for adverse impacts on Aboriginal and Treaty rights as opposed to potential adverse effects on bio-physical and socio-economic elements / values selected by the proponent:

“The concern is for adverse impacts, however made, upon Aboriginal and treaty rights…” (Clyde River at para. 25; emphasis added).

“the consultative inquiry is not properly into environmental effects per se. Rather, it inquires into the impact on the right” (para 45).

Clyde River (Hamlet) v. Petroleum Geo-Services Inc., 2017 SCC 40 (“Clyde River”) and Chippewas of the Thames First Nation v. Enbridge Pipelines Inc., 2017 SCC 41 (“Chippewas”).

(Source: JFK Law Corporation website: July, 2018)

Given the above, the DFN respectfully submits that within the context of this Project review, it is relevant and appropriate for the NEB to clarify how it will:

• conduct a meaningful assessment of impacts to Indigenous interests that is capable of being relied upon by the Crown to discharge its duty to consult the DFN;

• consider and address potential impacts to DFN’s Treaty Rights;

• facilitate a meaningful assessment of impacts that will serve to uphold the honour of the Crown;

27 • explicitly require an assessment of potential impacts to DFN’s Treaty 8 rights be conducted, to ensure that proper information is gathered and proper recommendations are made and acted upon;

• confirm that consideration of potential impacts of the Project on Indigenous interests means consideration of potential impacts to Aboriginal and Treaty Rights, including a consideration of cumulative impacts to those rights, and

• undertake other measures and actions to fulfil the expectations and directives set out by the Supreme Court in “Clyde River”

In addition to the above matters, the DFN is puzzled about NGTL’s approach to this Project and other adjacent projects it is advancing that are connected to and of the same North Central Corridor pipeline system. NGTL made the DFN aware that it intended to advance and apply for the current Project also known as the ‘North Star 1” Project in the spring of 2018. Through the summer and into the fall of 2018, NGTL also made DFN aware in written communications that it also intended to advance and apply for several other projects immediately adjacent to the current Project, connected to the same Project and that are part of the same integrated North Central Corridor pipeline system.

On August 6, 2018, NGTL advised the DFN of the associated projects under active consideration via email:

“NOVA Gas Transmission Ltd. (NGTL), a wholly owned subsidiary of TransCanada PipeLines Limited, is beginning to investigate options for a potential expansion project in northeastern Alberta which will increase the delivery capability to markets in southern Alberta. At this time, NGTL is in the preliminary stages of development for this potential expansion project and the facilities being considered are subject to and depend on commercial support.

We are currently studying options for a potential expansion to our system which may include multiple pipeline additions that will generally follow existing NGTL pipeline corridors and a compressor station unit addition. There are multiple natural gas pipeline components that are being considered including:

Multiple sections of pipeline looping the existing NCC pipeline

§ Approximately 24 km of up to 48-inch pipeline located 20 km north of Manning, AB in Northern Lights County § Approximately 22 km of up to 48-inch pipeline located 65 km east of Manning, AB in Northern Sunrise County

28 A section of pipeline looping the existing NWML Bear Canyon pipeline

§ NWML Loop 2 (Bear Canyon 2): Approximately 28 km of up to 36-inch pipeline located 50 km southwest of Worsley, AB in Clear Hills County

A section of pipeline partially looping the existing Wolverine Lateral pipeline

§ Wolverine Lateral Loop: Approximately 30 km of up to 20-inch pipeline located 65 km west of Manning, AB in Northern Sunrise County § Includes new delivery meter station (Carmon Creek East Sales)

There is also one compressor station unit addition under consideration:

• New compressor station addition located at NGTL’s existing Hidden Lake North Compressor Station. Approximately 104 km north of Worsley, AB in Clear Hills County

These facilities would be located in Northern Lights County, Northern Sunrise County, MD of Opportunity, and Clear Hills County.

The routes we’re investigating are in the early design stage and subject to change. Our focus is on potentially adding multiple sections of pipeline loop to our existing assets along our North Central Corridor (NCC), Wolverine Lateral and the Northwest Mainline (NWML) pipeline assets. A pipeline loop section is the installation of a new pipeline adjacent to an existing pipeline, and operating both lines in parallel to increase the capacity of the system.

If NGTL determines these facilities are required, NGTL will file the appropriate application with the National Energy Board as early as Q4 2018. In the coming months, we will be contacting potentially affected Indigenous groups, stakeholders and landowners to discuss the potential facilities, routing, survey work, environmental studies and early land access...”

(Reference: NGTL August 2018 Email to Duncan’s First Nation)

Between August 6th and the present time, NGTL noted that some of the above noted potential projects had been deferred or dropped. On August 6, 2018, the DFN received email confirmation from NGTL in respect to the most updated set of projects that were being advanced through NGTL’s internal project management planning process.

“…You may recall that Wolverine and North Star 5 have been cancelled/deferred but the components NGTL is still investigating options for potential expansion in northwestern Alberta as part of the North Corridor Expansions include:

• A section of pipeline looping the existing NCC pipeline

§ North Star 2: Approximately 24 km of up to 48-inch pipeline located 20 km north of Manning, AB in Northern Lights County

• A section of pipeline looping the existing NWML Bear Canyon pipeline

29 § NWML Loop 2 (Bear Canyon 2): Approximately 28 km of up to 36-inch pipeline located 50 km southwest of Worsley, AB in Clear Hills County There is also one compressor station unit addition under consideration:

• New compressor station addition located at NGTL’s existing Hidden Lake North Compressor Station. Approximately 104 km north of Worsley, AB in Clear Hills County

The DFN is concerned about the manner in which the applied for “North Star #1” pipeline and North Star#2 is to be advanced and applied for on a separate and discreet basis. This is not the first time that the DFN, NGTL and the NEB have had this discussion before. In the 2010/11 matter of NGTL’s Northwest Mainline Expansion Project (Hearing Order GH-2-2011), responding to DFN’s concern related to the possibility of “project splitting” and its potential impact on the scope of the project and the project’s environmental assessment, Osler responding for NGTL, informed the NEB of the following:

“The second primary concern raised in the DFN LOC related to “project splitting” and the appropriate standard of environmental assessment. DFN is concerned with the manner in which NGTL is advancing their projects and feel that these projects should have been reviewed, assessed and applied for as one project. DFN also is concerned that NGTL is trying to avoid a more complex regulatory review, particularly with respect to cumulative effects, by splitting a large project into smaller component applications.

NGTL responded to these concerns at a meeting held between the parties on September 22, 2011. At that meeting, NGTL reviewed its process for assessing supply and demand on its system, determining where any shortfalls may occur and when these shortfalls are expected to occur. Where the shortfalls are expected to occur is driven by pipeline hydraulic analysis – essentially looking for where bottlenecks are expected in the gas flow. When the shortfalls are expected is confirmed by customer contractual commitment – essentially when, in the case of supply, customers tells NGTL that their gas will be ready to flow onto the system. This explanation was provided with recent examples of facility requirements, including scope and contractual commitment and timing.

This explanation and ensuing discussion was a reiteration of the process described in the response to the NEB 1 dated January 10, 2011 (NEB E-File: A27888). A portion of this response is provided here for ease of reference:

The NGTL Alberta System is an integrated system. Each year, NGTL reviews its pipeline network based on forecasts of supply and demand anticipated over various periods of time. Where forecast requirements exceed the existing pipeline capacity in a given area of the pipeline network, facility solutions are identified that will address the capacity shortfall. Options include making use of existing facilities (transportation by others), purchasing existing facilities owned by others or constructing new Alberta System facilities (e.g., pipelines or compression or both).

To determine when the project is required, NGTL looks to the requested in-service dates of new contracts combined with existing contracts – in essence, the contracts determine the timing for projects. NGTL develops a facility requirement list for 5 years or more into the future. NGTL only applies for projects once an appropriate level of commercial underpinning is sufficiently formalized (e.g., contracts for transportation are signed). Facilities identified for long-term planning purposes may or may not ultimately be required.

30 At the September 22 meeting, information contained in the Project application, as well as in the other applications that have been approved subject to fulfilling the conditions of approval (i.e., Tanghe Creek Lateral Loop No. 2 – Sloat Creek Section, Moody Creek and Hidden Lake North compressor stations), was provided to DFN. This information demonstrated that these projects are not triggers for each other and are required by separate commercial underpinnings that materialize within different timeframes”.

(Reference: Osler November 2, 2011 letter to NEB, responding to DFN Comments on NGTL Northwest Mainline Expansion Application-Hearing Order GH-2-2011)

In 2011, the NEB agreed with the NGTL’s rationale and reasoning at the time. Essentially, DFN can see the argument that NGTL was making as there were wide spaces / gaps between the above projects and can see how different customers / shippers along the line had different needs in respect to entry points onto the NGTL system. The same could be said for the current slate of projects that fall under the banner of NGTL’s North Corridor Expansions. The DFN can see how the above rationale provided by NGTL holds as there is a clear separation between: e.g. North Star#1 and the Bear Creek Project; e.g. NorthStar#1 and Hidden Creek Compressor Station;

What we fail to understand is how the currently proposed Northstar#1 Project can be differentiated in any respect from the Northstar#2 Project which are immediately adjacent and contiguous to one another and form part of the connected NGTL North Central Corridor (Pipeline). The DFN illustrates this question with the two maps (Map 6 – Below / Map 7 – Following Page):

31 NOVA Gas Transmission Ltd. Section 58 Application Attachment 7 North Central Corridor Loop (North Star Section 1) Global and Regional Maps

#! ! ! 102 ! PADDLE PRAIRIE METIS ! SETTLEMT. 695¥ CARCAJOU 187 101 ¥ KEG CARCAJOU RIVER ¥695¥ 100 MACKENZIE COUNTY 99 KEMP ! RIVER

! 98

TWIN LAKES 97 COUNTY OF NORTHERN PROPOSED NCC LOOP LIGHTS NORTH STAR SECTION 1 ! ! !" 96 ! 692¥ ! ¥ 95 692 ¥692¥ ¥¥ NOTIKEWIN !### !!! 94 ! ¥35

! ! HOTCHKISS STATION 93 ! HOTCHKISS ¥741¥ 1 7 6 5 4 92 ! 2 25 24 23 22 21 20 19 18 M6 M5

! MANNING NORTHERN CLEAR 691 HILLS ¥¥ SUNRISE 91 NORTH COUNTY STAR COUNTY

! ! 90

¥690¥ DEADWOOD 89 SULPHUR LAKE

RUNNING LAKE 88 743¥ ! ! ! ¥ #!!!" ! ! 87 ¥689¥ DIXONVILLE CLEAR ! HILLS 152C STONEY LAKE ! !

EUREKA 86 RIVER ! ¥986¥ ¥730¥ !

October 2018 Page 2 of 2

Map#6 – NGTL NorthStar Map from Project Application

Map#7: Google Earth Project Based on KMZ files provided to DFN by NGTL

(“Northstar#1” Pipeline on the left / Northstar#2 on the right/ division between the projects at mid-point on the map)

33 The DFN notes that the linear KM quoted by NGTL for each pipeline segment are as follows:

“NorthStar#1”: 31KM NPS 48 North Central Corridor System

“NorthStar#2: 24KM NPS 48 North Central Corridor System

Total Length 55KM

If the two projects were advanced as an integrated whole, the total linear distance would in order of 55KM. The DFN further notes the respective requirements set out in Section 58 and Section 52 of the NEB Act and related CEAA2012 requirements:

Section 58

Section 58 of the NEB Act permits the Board to make orders exempting certain facilities from any or all of the provisions of sections 29 to 33 and section 47 of the NEB Act.

58. (1) The Board may make orders exempting

(a) pipelines or branches of or extensions to pipelines, not exceeding in any case forty kilometres in length, and

(b) such tanks, reservoirs, storage facilities, pumps, racks, compressors, loading facilities, interstation systems of communication by telephone, telegraph or radio, and real and personal property and works connected therewith, as the Board considers proper, from any or all of the provisions of sections 29 to 33 and 47.

While applications made under section 58 do not automatically trigger a public hearing, the Board will still assess the application with respect to:

• public consultation; • engineering; • environment and socio-economics; • economics; and • lands.

As such, applicants should refer to the information requirements outlined in:

• Chapter 3, Common Information Requirements; • Chapter 4, Physical Projects, including sections 4.1 and 4.2 and all subsections within Guide A – Facilities Applications (NEB Act s. 52 and s. 58).

(Source: https://www.neb-one.gc.ca/bts/ctrg/gnnb/flngmnl/fmgda-eng.html#s52a)

Section 52 of NEB Act

Applications under section 52 of the NEB Act trigger a public hearing, either written or oral. Applicants should refer to the information requirements outlined in:

34 • Chapter 3 – Common Information Requirements; • Chapter 4 – Physical Projects, including sections 4.1 and 4.2 and all subsections within Guide A – Facilities Applications (NEB Act s. 52 and s. 58).

(Source: https://www.neb-one.gc.ca/bts/ctrg/gnnb/flngmnl/fmgda-eng.html#s52a)

Guide A Facilities Applications

CEAA 2012 – Many larger proposed projects (e.g. the construction and operation of a new pipeline with a length of 40km or more) will require a CEAA 2012 assessment. Applicants should consult the CEAA 2012 Regulations Designating Physical Activities to confirm whether their proposed project may be designated under the CEAA 2012. In such circumstances proponents are encouraged to visit the CEA Agency’s website for additional information and guidance about the CEAA 2012.

(Source: https://www.neb-one.gc.ca/bts/ctrg/gnnb/flngmnl/fmgda2-eng.html)

Generally, the DFN understands NGTL’s rationale and explanation which was provided to DFN and the NEB in 2011 in matter of the NGTL Northwest Mainline Expansion Application. While we are not natural gas supply / market demand or natural gas shipping contract specialists by any means, NGTL’s rationale for breaking the pipeline projects into two discreet parts and applications does not appear to us to hold in the case of North Star #1 and North Star#2. The two projects are adjacent and contiguous. They are the same diameter (NPS42). They are part of the same pipeline system (NGTL North Central Corridor). There is no joining pipeline or facility that creates an operational break between the two components. The two projects are being built to serve a common stated purpose.

Given this, the DFN respectfully suggests that the NorthStar#1 and Northstar#2 are one in the same project and that they should be applied for as one integrated pipeline project over 50KM in length under Section 52 of NEBA which would clearly mandate a hearing by the NEB and an environmental assessment pursuant to CEAA2012. The DFN is of the view that proponents should not be allowed to circumnavigate or abuse the NEB’s process and public trust in the NEB process by building what is an integrated project in an incremental fashion. The integrated project / review approach would allow for a more appropriate scope for review and a broader time scale and mandate for the Board to conduct a more fulsome and comprehensive inquiry into and consideration of impacts to DFN’s rights and interests, provided the standards set out Chippewas and Clyde River were applied. In DFN’s view, a hearing format would allow more latitude and ability for the NEB to inquire into the important matters that DFN is raising central to their ability to exercise their rights and matters that are clearly within the public interest.

35 6.0 Substantive Issues and Concerns of the Duncan’s First Nation

The Project, as currently proposed, carries the potential to adversely impact the Treaty rights of the DFN community. The class of adverse impacts are summarized below:

Direct, Indirect and Cumulative Impact to Moose Hunting

Based on the information it has at this time, the DFN is of the view that the Project has a high potential to adversely impact its right to hunt for moose given:

DFN has historically hunted for moose in the Chinchaga, Meikle, Hotchkiss and Notikewin watersheds;

Based on existing cultural research and documentation, there is evidence of ongoing and current moose hunting by DFN members though the same watersheds;

Recently updated cultural research and documentation confirms evidence of ongoing and current moose hunting by DFN community members along the Hotchkiss River and to the north and south of the Chinchaga Forestry Road;

The existing North Central Corridor (pipeline) traverses this area and has resulted in array of impacts that have served to undermine DFN member’s success in hunting in the Project area and areas in the vicinity of the Project;

The widening of the North Central Corridor will serve to intensify and exacerbate existing impacts and extend these impacts both spatially and temporarily;

The presence of the permanent corridor alters moose forage availability in the area;

The use of the pipeline corridor by trucks and ATVS on an ongoing basis serves to supress vegetation regrowth and moose forage on the right-of-way / pipeline corridor;

The ongoing presence of the pipeline right-of-way along with the road corridor has served to facilitate increased access by humans, increased hunting, increased moose kills which reduces moose that DFN members rely on in the Project area and areas in the vicinity of the Project,and

The ongoing presence of the pipeline right-of-way along with the road corridor has served to facilitate increased predation on moose and moose calves by wolves reducing the numbers of moose DFN members rely on in the Project area and areas in the vicinity of the Project.

36 Direct, Indirect and Cumulative Impact to Fishing

Based on the information it has at this time, the DFN is of the view that the Project has the potential to adversely impact its right to fish for given:

DFN has historically fished for Grayling, Walleye and Jackfish in the Chinchaga River, Grayling, Jackfish and Walleye in the lower Hotchkiss River and Grayling, Jackfish and Walleye in the Meikle River and Walleye, Goldeye, Lingcod and Jackfish in the lower Peace River;

Based on existing cultural research and documentation, there is evidence of ongoing and current fishing in the Chinchaga, Hotchkiss, Meikle and lower Peace River by DFN members though the same valleys;

Recently updated cultural research and documentation confirms evidence of ongoing and current fishing in the Chinchaga, Hotchkiss, Meikle and Peace Rivers,and

Based on information provided by DFN members, these rivers are not in good shape and their ability to fish has been diminished through reduced flows, increased / observed sedimentation in tributaries and the main rivers and through the overall observed drop in fish populations as evidence by lower catch rates and reduced fishing success.

The project involves crossings of 11 first and second order tributaries to the Hotchkiss River, which is fished by the DFN. Trenched open-cut methodologies are proposed as the primary method for all pipeline watercourse and drainage crossings. Depending on timing and conditions, this could result in increased sedimentation flowing into the tributaries that feed into the Hotchkiss River, where DFN fishing does occur.

Direct, Indirect and Cumulative Impact to Plant Harvesting On / Adjacent to Wetlands

Based on the information it has at this time, the DFN is of the view that the Project has the potential to adversely impact its right to harvest and gather food and medicine plants given:

Based on existing cultural research and documentation, there is evidence of ongoing and current harvesting and gathering of food and medicine plants. Some of this activity occurs on the margins of wetland areas;

The Project will traverse wetlands including bogs, swamps, fens and marshlands, and

The Project will result in the reduction of wetland area potentially impacting DFN harvesters

37 Impacts to DFN’s Interest in Caribou Herds

The DFN have historically hunted caribou though the Chinchaga, Hotchkiss and Notikewin watersheds. Caribou was a species key to the sustenance and cultural needs of the DFN’s ancestors.

Within the past twenty years, some DFN members report that they hunted caribou in this region. The majority of DFN members have voluntarily halted the hunting of caribou given that they can’t be generally be found in larger herds through their former ranges and given the DFN’s interest in seeing the species restored through their historic ranges and in self-sustaining herds.

The western portion of the Project will traverse and impact Caribou range (Map#8 – See NGTL Map Depicting Project Relative to Chinchaga Caribou Range below )

Map#8 NGTL Map Depicting Project Relative to Chinchaga Caribou Range

38 The Chinchaga Caribou populations and habitat are in a serious state where extirpation of the herd is reality and further development such as the proposed Project will further impact the population, recovery goals and the DFN’s rights and interest in respect to this key species of cultural value to the DFN:

“The distribution of woodland caribou in west-central Alberta has greatly declined over the last 50 to 80 years (GOA 2016). The Chinchaga Caribou Range is 31,623 km2 in size (17,644 km2 in Alberta) and identified as a highly disturbed landscape, with 97% of the delineated range considered to be fragmented on the Alberta portion by anthropogenic development and industrial activity overlapping with fire disturbance (Environment Canada 2011, 2012; GOA 2017a). The range is considered to be one of the top four most critical ranges of the 15 caribou ranges in Alberta under provincial jurisdiction, prioritized for recovery action (GOA 2016). The population was estimated to be 250 animals in 2012 with a declining population trend (λ = 0.89) and a population risk assessment of “Not Self-Sustaining” (“Alberta Woodland Caribou Recovery Team 2005; Environment Canada 2012; Hervieux et al. 2013; GOA 2017a).”

“Caribou population recovery to a stable and self-sustainable level in the Chinchaga Range depends on restoring a highly fragmented population range (by reducing the level of disturbance from 97% to no more than 35%), and conserving sufficient and connected suitable habitat within the range to support a self-sustaining population (GOA 2011, 2016, 2017a). Draft action planning for the Chinchaga range prioritizes permanent protection of 24% of the range area. Current habitat conditions in the Chinchaga Range will not support a self-sustaining caribou population. Achieving sufficient future habitat will require restoration and will take many decades because of the time required for currently disturbed habitat to recover and mature to a condition suitable for caribou (GOA 2017a)”.

(Source: NOVA Gas Transmission Ltd. Section 58 Application North Central Corridor Loop (North Star Section 1) - Attachment 12: Preliminary Caribou Habitat Restoration Offset Measures Plan)

The Project will adversely impact DFN’s Treaty rights and interest sin relation to the Chinchaga Caribou population and its range taken with the existing level of development and the incremental impacts that will be introduced into the host environment by the Project.

The DFN has not yet an opportunity to review NGTL’s “Preliminary Caribou Habitat Restoration Offset Measures Plan”. Given this, it cannot yet say whether the plan has the ability to address adverse impacts on caribou and DFN’s rights and interests in relation to caribou and their range. Industry standard Caribou protection plan measures have failed to address, halt or reverse impacts to caribou habitat in the Chinchaga range. It may be that NGTL’s plan represents an improvement on the status quo mitigation measures and plans, however, a recovery effort across industry sectors, industry players and both levels of government is required now prior to the approval of this Project and not based on a general commitment by Alberta to do something, at some time in the future. The Government of Alberta is currently pushing back on the

39 Government of Canada’s caribou range recovery plans, seeking once again to delay, based on the purported need to consult on impacts to local communities from implementation of federal recovery goals and plans. DFN’s fears are not unfounded. DFN was present at a fund-raising event held in Peace River, where the current leader of the United Conservative Party committed to opposing federal recovery plans that in his view would constrain Alberta’s economy for a “species that is not even native” to the Peace region. The Chinchaga caribou are not some form of invasive species. The DFN have an historical relationship and connection to this species and it will do its utmost to defend their right to exist and do well again in our traditional lands. We expect that the well-being of the herds and DFN’s rights and interest in relationship to the Chinchaga herd be dealt with in the utmost seriousness and in keeping with honour of the Crown.

Potential for Project to Shape and Give Rise to Further Natural Gas Exploration and Development

The DFN notes the following from the Application:

“The Project is required to be in-service by April 2020 to meet the NGTL System North Central Corridor (NCC) design flow requirements serving the aggregate market demands in northeast Alberta, which have been determined to exceed the capacity of the System in 2020. The NCC design flows are supported by existing Firm Transportation Delivery (FT-D) contract obligations in northeast Alberta.

There is or there will be adequate supply to support the use of the applied for facilities.

The Applicant has made arrangements with the operators of upstream and downstream facilities .

The applicant has notified third party shippers about the project and they do not have any outstanding concerns about the impact of the project on tolls, tariffs, access or service.”

(Source: https://apps.neb-one.gc.ca/REGDOCS/Item/View/3648899)

It appears that the Project is being designed to facilitate natural gas flows from a west to east direction with gas volumes going to industrial end users in north-east Alberta. What is not known, is where the pipeline will pick up gathered gas volumes from the Montney Basin. Where and how this occurs is significant to the DFN and the answer may determine if and how the Project will shape and promote further natural gas exploration and development with DFN’s Traditional Territory, areas of critical cultural importance to the DFN and the Chinchaga Caribou range that will act as the host environment to the Project.

40 In a recent article by the NEB (Feature Article: Evolving technology is a key driver of performance in modern gas wells: a look at the Montney Formation, one of North America’s biggest gas resources: Release date: 2018-04-25), the NEB describes the Montney play as one of the largest resource areas in North America:

“The Montney Formation is located in western Canada and has an area of 130 000 km², about the size of New Brunswick and Nova Scotia combined. The Montney has the potential to produce a total of 449 trillion cubic feet (Tcf) of natural gas with modern technology, making it one of the biggest gas resources in North America.

However, only a small part of that large area is currently being developed. The large majority of the gas is found in only 35 000 km² on the Montney’s west side. Of this, “core” areas of 25 000 km² are of the most interest to gas producers. Core areas are developed first because they tend to have the best reservoir quality and can produce the most gas.

Because of the large size of the Montney’s core area, companies will likely take many years to fully drill areas with the best reservoirs before they start drilling areas with lower reservoir quality. Therefore, it is likely that Montney well performance will continue rising as technology continues to evolve”.

(Source: https://www.neb-one.gc.ca/nrg/ntgrtd/mrkt/ftrrtcl/2018-04-25vlvngtchnlg-eng.html)

Map #9: NEB Depiction of the Montney Basin (Source:https://www.neb- one.gc.ca/nrg/ntgrtd/mrkt/ftrrtcl/2018-04-25vlvngtchnlg-eng.html)

Map#10 Third Party Characterization of the Montney Basin with Pipeline Infrastructure

(Source: https://www.naturalgasintel.com/montneyinfo#top)

Given the location of the Montney deposit, the size of the resource, the position of NGTL’s North Central Corridor and the Project, it appears that there is high likelihood that natural gas companies will seek to take advantage of the additional capacity on the NGTL NCC made realizable by the Project and companion projects it is advancing as part of the NGTL’s “North Corridor Expansions”. An intensification in natural gas development in areas in the vicinity of the Project and the hosting landscape would prove detrimental to DFN’s rights. Indeed, the DFN has witnessed companion expansion once a main transmission line has been approved, built and goes into operation. As one DFN elder put it, “they aren’t building this pipeline because they like to build pipelines, it’s being built to be filled up”.

The DFN requests that the proponent, under the direction of NEB, undertake an appropriate modelling exercise that would assist the parties in determining potential for natural gas expansion within the hosting landscape that would potentially arise given the available capacity in NGTL’S NCC system made realizable by the Project, and how that development, along with the Project and other existing developments could act in concert to potentially impair the rights of the DFN and its ability to maintain and transmit its culture. There appears to be precedents for this and the technical expertise appears to be resident in the NEB for it to be able to so accurately estimate the Montney’s resource potential of 449 trillion cubic feet (Tcf) of natural gas and NGTL’s expertise to prepare a defensible justification supporting the need of the Project. The DFN would be prepared to contribute resources to the exercise however takes the view the such an exercise should only be undertaken and guided by a jointly developed scope of work / terms of reference ordered by the NEB.

42 Need for a Caveat Related to Conversion of the Project from Gas to Oil Service

The DFN is aware of another proponent’s early efforts to advance the Eagle Spirit Pipeline. Based on some early version maps, it appears that the proponent of the Project contemplates twinning the North Central Corridor to take oil from Alberta’s oil sands producing area to the BC coast. One possibility open to Eagle Spirit might be to seek to purchase the NCC pipeline or contract NGTL / TCPL to ship oil where NGTL would submit an application to the NEB to seek approval to repurpose the line from gas service to oil service and reverse its flow.

It is clear that Eagle Spirit’s planning is in the very early stage and the project is speculative at best at this stage, however, the DFN believes that the NEB should place a caveat or restriction on the Project that would prevent it from being used for such a purpose. Notwithstanding an indication of support being provided by a former DFN leader for the Eagle Spirit concept, the DFN is opposed to the construction of a new oil pipeline through the Chinchaga Caribou range or having the NCC system repurposed to serve the same objective.

Cumulative Impacts to Duncan’s First Nation Rights

For years the DFN has raised the issue of cumulative impacts to its rights. The clearing of lands for agricultural purposes, the conversion of Crown land to fee simple lands, the construction of highways and access roads, oil and gas wells, seismic and pipelines, clear cutting of forests, the construction of power lines, the construction and operation of power projects has served to:

• increase the level of disturbance; • bisect or chop up intact landscapes; • increase human presence and access on the landscape; • undermine ecological values and healthy ecological conditions across landscapes; • result in the lowering of wildlife, fish and certain plant communities of critical value to the DFN; • reduce the area and lands on which DFN can access to exercise their rights; • make the exercise of rights by the DFN impossible in many areas, make the exercise of rights far more difficult in others and reduce the success of DFN members in the exercise of their rights, and • reduce the areas and conditions in which DFN members prefer to exercise their rights and utilize lands and resources for traditional purposes, and • impact DFN community members ability to practice and transmit their culture

43 The DFN has raised this issue within the context of past NEB project reviews. The DFN has raised this issue with provincial agencies and government decision makers. To date, no concrete or demonstrable action has been taken in the context of provincial or federal decision making. Issues of cumulative impacts and caribou decline are acknowledged however they are shunted to the purview of the Government of Alberta which purports to address such matters through its Land Use Framework, regional land use planning and caribou recovery planning tables. The DFN notes that no material action has been taken by the Government of Alberta to advance land use plans for the upper or lower Peace regions.

The Project falls within and carries a high potential to impact one of the most valuable areas / landscapes that is capable of supporting the DFN in the exercise of their rights and interest in maintaining, protecting and transmitting their culture to future generations. The existing regulatory framework and NEB Filing Manual permits proponents to frame, scope and assess projects in a manner that assumes the Project is being advanced in a pristine landscape or is being proposed in the absence of any other stressors acting on the rights of the DFN. The DFN pleads with the NEB to take the appropriate actions to ensure that such an approach is not permitted within the review of this Project. These issues cannot be characterized as “general concerns” on “non- Project issues”. Rather they are directly relevant and germane to the NEB’s review, which is to be relied upon by the Government of Canada decision makers.

As noted, the DFN is surrounded by essentially a sea of farmed lands around the community where community members have zero to very limited ability to exercise their rights given the amount of fee simple lands, agricultural lands, cleared and fenced lands. This situation is depicted in the map below. (Map#11 – See Below)

Map#11: DFN Situation with Impacted Within Peace River Region

It is possible for the DFN roughly demarcate one of the key remaining areas of critical cultural interest and that contain important values that support the DFN’s exercise of rights and maintenance and transmission of its culture. (Map#12 – See following page).

Map#12: Location of Project Relative to a DFN Area of Critical Cultural Interest / Value

46 7.0 Main DFN Generated Rights Impact Report Due in December 2018

As noted the DFN is working diligently to prepare a Rights Identification, Interaction and Project Impact Report. NGTL provided some financial resources to the DFN to enable it to prepare this work. As set out in section 2.5 of this document, the report will provide to the NEB, NGTL and relevant Government of Alberta permitting agencies information and findings in respect to: