· · · · · · · · · · JOINT REVIEW PANEL PUBLIC HEARING · · · · · · · ·IN THE MATTER OF Application Nos. 1844520, 1902073, · · ·001-00403427, 001-00403428, 001-00403429, 001-00403430, · · · · 001-00403431, MSL160757, MSL160758, and LOC160842 · · · · · · · · ·to the Alberta Energy Regulator · · · · · · ·______· · · ·GRASSY MOUNTAIN COAL PROJECT - BENGA MINING LIMITED · · · · · · · · · · · · · · VOLUME 11 · · · · · · · · · · · · ·VIA REMOTE VIDEO · · ·______· · · · · · · · · · · · · · · · · November 9, 2020 ·1· · · · · · · · · · · TABLE OF CONTENTS ·2 ·3· ·Description· · · · · · · · · · · · · · · · · · · ·Page ·4 ·5· ·November 9, 2020· · · · ·Morning Session· · · · · 2300 ·6· ·Discussion· · · · · · · · · · · · · · · · · · · · 2304 ·7· ·GARY HOUSTON, KEITH BOTT, Previously Affirmed· · ·2307 ·8· ·(Current use of land and resources, Indigenous ·9· ·rights, culture, and other matters related to 10· ·potential impacts on Indigenous communities) 11· ·Direct Evidence of Benga Mining Limited 12· ·Alberta Energy Regulator Secretariat Staff· · · · 2313 13· ·Cross-examines Benga Mining Limited 14 15· ·November 9, 2020· · · · ·Afternoon Session· · · · 2367 16· ·GARY HOUSTON, KEITH BOTT, Previously Affirmed· · ·2370 17· ·Alberta Energy Regulator Secretariat Staff· · · · 2371 18· ·Cross-examines Benga Mining Limited 19· ·Alberta Energy Regulator Panel Questions· · · · · 2390 20· ·Benga Mining Limited 21· ·RAY WARDEN, NICOLE KAPELL, CRAIG CANDLER,· · · · ·2401 22· ·MARLENE MACHMER, JESSE SINCLAIR, CHRIS BURNS, 23· ·Affirmed 24· ·(Current use of land and resources, Indigenous 25· ·rights, culture, and other matters related to 26· ·potential impacts on Indigenous communities) ·1· ·Direct Evidence of Ktunaxa Nation Council ·2· ·Mr. Brinker Cross-examines Ktunaxa Nation· · · · ·2451 ·3· ·Council ·4· ·Alberta Energy Regulator Staff Questions· · · · · 2454 ·5· ·Ktunaxa Nation Council ·6· ·Alberta Energy Regulator Secretariat Staff· · · · 2472 ·7· ·Questions Ktunaxa Nation Council ·8· ·Alberta Energy Regulator Panel Questions· · · · · 2481 ·9· ·Ktunaxa Nation Council 10· ·Certificate of Transcript· · · · · · · · · · · · ·2492 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 ·1· ·Proceedings Taken via Remote Video ·2· ·______·3· ·November 9, 2020· · · · ·Morning Session ·4 ·5· ·A. Bolton· · · · · · · · The Chair ·6· ·D. O'Gorman· · · · · · · Hearing Commissioner ·7· ·H. Matthews· · · · · · · Hearing Commissioner ·8 ·9· ·M. LaCasse· · · · · · · ·AER Counsel 10· ·B. Kapel Holden· · · · · AER Counsel 11 12· ·K. Lambrecht, QC· · · · ·Joint Review Panel Secretariat 13· · · · · · · · · · · · · · Counsel 14 15· ·T. Utting· · · · · · · · IAAC Staff 16· ·E. Arruda· · · · · · · · AER Staff 17· ·D. Campbell· · · · · · · AER Staff 18· ·T. Turner· · · · · · · · AER Staff 19· ·T. Wheaton· · · · · · · ·AER Staff 20· ·A. Shukalkina· · · · · · AER Staff 21 22· ·M. Ignasiak· · · · · · · For Benga Mining Limited 23· ·C. Brinker 24 25· ·R. Warden· · · · · · · · For Ktunaxa Nation 26· ·T. Howard ·1· ·K. Poitras· · · · · · · ·For Métis Nation of Alberta ·2· · · · · · · · · · · · · · Region 3 ·3 ·4· ·Chief B. Cote· · · · · · For Shuswap Indian Band ·5 ·6· ·B. Snow· · · · · · · · · For Stoney Nakoda Nations ·7 ·8· ·R. Drummond· · · · · · · For Government of Canada ·9· ·S. McHugh 10 11· ·A. Gulamhusein· · · · · ·For Municipality of Crowsnest 12· · · · · · · · · · · · · · Pass 13 14· ·M. Niven, QC· · · · · · ·For MD of Ranchland No. 66 15· ·R. Barata 16· ·J. Nijjer (Student-at-Law) 17 18· ·B. McGillivray· · · · · ·For Town of Pincher Creek 19 20· ·D. Yewchuk· · · · · · · ·For Canadian Parks and 21· · · · · · · · · · · · · · Wilderness Society, Southern 22· · · · · · · · · · · · · · Alberta Chapter 23 24· ·R. Secord· · · · · · · · For Coalition of Alberta 25· ·I. Okoye· · · · · · · · ·Wilderness Association, Grassy 26· · · · · · · · · · · · · · Mountain Group, Berdina Farms ·1· · · · · · · · · · · · · · Ltd., Donkersgoed Feeder ·2· · · · · · · · · · · · · · Limited, Sun Cured Alfalfa ·3· · · · · · · · · · · · · · Cubes Inc., and Vern Emard ·4 ·5· ·R. Cooke· · · · · · · · ·For Crowsnest Conservation ·6· · · · · · · · · · · · · · Society ·7 ·8· ·G. Fitch, QC· · · · · · ·For Livingstone Landowners ·9· ·C. Agudelo· · · · · · · ·Group 10 11· ·M. Sawyer· · · · · · · · For Timberwolf Wilderness 12· · · · · · · · · · · · · · Society and Mike Judd 13 14· ·(No Counsel)· · · · · · ·For Barbara Janusz 15 16· ·(No Counsel)· · · · · · ·For Jim Rennie 17 18· ·S. Elmeligi· · · · · · · For Alberta Chapter of the 19· ·A. Morehouse· · · · · · ·Wildlife Society and the 20· ·S. Milligan· · · · · · · Canadian Section of the 21· ·M. Boyce· · · · · · · · ·Wilderness Society 22 23· ·J. Gourlay-Vallance· · · For Eco-Elders for Climate 24· · · · · · · · · · · · · · Action 25 26· ·L. Peterson· · · · · · · For Trout Unlimited Canada ·1· ·R. Campbell· · · · · · · For Coal Association of Canada ·2 ·3· ·(No Counsel)· · · · · · ·For Alistair Des Moulins ·4 ·5· ·(No Counsel)· · · · · · ·For David McIntyre ·6 ·7· ·(No Counsel)· · · · · · ·For Fred Bradley ·8 ·9· ·(No Counsel)· · · · · · ·For Gail Des Moulins 10 11· ·(No Counsel)· · · · · · ·For Ken Allred 12· ·(Not Present) 13 14· ·(No Counsel)· · · · · · ·For Monica Field 15 16· ·S. Frank· · · · · · · · ·For Oldman Watershed Council 17· ·A. Hurly 18 19· ·A. Porco, CSR(A)· · · · ·Official Court Reporter 20· ·______21 22 23 24 25 26 ·1· ·(PROCEEDINGS COMMENCED AT 9:01 AM) ·2· ·Discussion ·3· ·THE CHAIR:· · · · · · · ·Good morning, everyone. ·4· · · · Just a reminder that live audio and video streams ·5· ·and video recordings of this proceeding are available ·6· ·to the public through the AER's website and YouTube. ·7· ·Anyone in the virtual hearing room with their camera or ·8· ·microphone turned on will be captured, and images and ·9· ·recordings of you and your surroundings will be 10· ·broadcast to a publicly available YouTube video.· If 11· ·you have concerns about this, please contact counsel 12· ·well in advance of the time you're scheduled to 13· ·participate to explain your concerns.· We will try to 14· ·accommodate your concerns considering the need for an 15· ·open and transparent public process. 16· · · · One preliminary matter that I just want to make 17· ·people aware of.· You'll note on the schedule that -- 18· ·actually, maybe it isn't on the schedule.· One of the 19· ·Panel Members has an important personal matter that 20· ·they must attend to at 11 AM this morning that could 21· ·not be rescheduled.· So our plan is to take our lunch 22· ·break earlier.· We'll break a couple minutes before 11 23· ·and break for about an hour, till around 12:00, and 24· ·then resume. 25· · · · Are there any other preliminary matters before we 26· ·get to the next topic area? ·1· ·MR. IGNASIAK:· · · · · · Yes, Mr. Chair.· It's ·2· ·Martin Ignasiak.· At the end of Saturday's session, you ·3· ·quite rightly pointed out that witnesses and other ·4· ·participants in this proceeding should be treated with ·5· ·respect, and appropriate decorum should be observed. ·6· ·It bothers me that you had to make those comments ·7· ·because of my conduct.· Therefore, I wanted to ·8· ·reiterate and expand upon the brief apology I gave on ·9· ·Saturday. 10· · · · As legal counsel, and as someone who has extensive 11· ·experience in these proceedings, I should be leading 12· ·the way and maintaining the appropriate standards of 13· ·respect and decorum.· I failed to do that on Saturday. 14· ·The appropriate place to comment on the weight that 15· ·should be given a witness's evidence is in argument, 16· ·not during cross-examination.· And more importantly, 17· ·there's an appropriate manner in which to make those 18· ·submissions, and I failed in meeting that standard on 19· ·Saturday. 20· · · · So, again, Mr. Chair, I apologize to the Panel, 21· ·and in particular to Dr. Norman and Mr. Sawyer for the 22· ·unnecessary and unhelpful comments that I made during 23· ·cross-examination, and I'll refrain from doing so 24· ·again.· Thank you, Mr. Chair. 25· ·THE CHAIR:· · · · · · · ·Okay.· Thank you, 26· ·Mr. Ignasiak. ·1· · · · Any other preliminary matters? ·2· · · · Okay.· So we are starting a new topic area today. ·3· ·That is the current use of land and resources, ·4· ·Indigenous rights, culture, and other matters related ·5· ·to potential impacts on Indigenous communities. ·6· · · · The schedule that we sent around has Benga ·7· ·starting with direct, followed by cross-examination. ·8· ·There were initially three Indigenous communities who ·9· ·indicated they wanted to present in this session.· That 10· ·included the Stoney Nakoda Nations, Ktunaxa Nation 11· ·Council, and Shuswap Indian Band. 12· · · · Based on the discussion I had with Mr. Snow on the 13· ·day of opening remarks for Stoney Nakoda, it's not 14· ·clear to me if they want to present anything further. 15· ·I don't know if Mr. Snow is in the Zoom room to confirm 16· ·that, but I'll just maybe ask if he is, if he could 17· ·confirm whether or not it's their intention to provide 18· ·any further evidence or presentations. 19· · · · Okay.· Hearing none, I'll assume, unless I hear 20· ·otherwise from Stoney Nakoda Nations, that they don't 21· ·plan to present any further direct evidence. 22· · · · So with that, Mr. Ignasiak, I think we're ready 23· ·for Benga's direct evidence. 24· ·MR. BRINKER:· · · · · · ·Good morning, Mr. Chair.· It's 25· ·Coleman Brinker speaking.· I will introduce the Benga 26· ·witness panel this morning. ·1· ·THE CHAIR:· · · · · · · ·Okay. ·2· ·MR. BRINKER:· · · · · · ·For this topic block the Benga ·3· ·witness panel will consist of Mr. Gary Houston and ·4· ·Mr. Keith Bott, who are both in one room here in ·5· ·Calgary.· Mr. Houston and Mr. Bott have previously been ·6· ·sworn or affirmed in earlier topic blocks, and I ·7· ·understand they would both acknowledge that they remain ·8· ·under oath or affirmation. ·9· · · · So subject to any other preliminary issues or 10· ·questions, Mr. Chair, I will turn it over to 11· ·Mr. Houston to deliver Benga's statement, and then we 12· ·can proceed to questions from there. 13· ·THE CHAIR:· · · · · · · ·Yeah.· Please go ahead. 14· ·MR. BRINKER:· · · · · · ·Over to you, Mr. Houston. 15· ·GARY HOUSTON, KEITH BOTT, Previously Affirmed (Current 16· ·use of land and resources, Indigenous rights, culture, 17· ·and other matters related to potential impacts on 18· ·Indigenous communities) 19· ·Direct Evidence of Benga Mining Limited 20· ·MR. HOUSTON:· · · · · · ·Thank you, Mr. Brinker. 21· · · · Mr. Chair, Members of the Joint Review Panel, 22· ·hearing participants, good morning. 23· · · · Given the nature of today's topic, Benga would 24· ·like to start by acknowledging that the Grassy Mountain 25· ·project is located on Treaty 7 lands in Alberta and on 26· ·the traditional lands of the Ktunaxa Nation Council and ·1· ·the Métis. ·2· · · · Benga's pleased with the relationships of mutual ·3· ·respect and understanding it has developed with ·4· ·Indigenous groups who may potentially be affected by ·5· ·the project. ·6· · · · Due to Benga's efforts and the efforts of these ·7· ·Indigenous groups, we can advise that all of the ·8· ·Treaty 7 First Nations and the Métis Nation of Alberta, ·9· ·Region 3, have provided letters indicating they do not 10· ·object to the project.· This is a project that will 11· ·bring jobs -- good, well-paid, full-time jobs -- to the 12· ·Indigenous peoples in the area while ensuring the safe 13· ·and responsible development of Alberta's natural 14· ·resources. 15· · · · Mr. Chair, Benga began its consultation with 16· ·potentially affected Indigenous communities in June of 17· ·2013.· From the beginning, Benga's objective was to 18· ·better understand the potential effects of the project 19· ·on Indigenous interests. 20· · · · We engaged Indigenous communities early on, 21· ·understanding the significance of the area surrounding 22· ·Grassy Mountain to a number of Indigenous groups in the 23· ·area, both for traditional and nontraditional purposes. 24· · · · Based on information gathered from communities and 25· ·guidance from the AER and the Agency, it was determined 26· ·that those Indigenous communities potentially affected ·1· ·by the project include the Ktunaxa Nation Council, the ·2· ·Métis Nation of Alberta Region 3 and the Treaty 7 ·3· ·Nations, comprised of the Kainai Nation, the Piikani ·4· ·Nation, the Siksika Nation, and the Stoney Nakoda ·5· ·Nation, which is made of Bearspaw Nation, Chiniki ·6· ·Nation, and the Wesley Nation. ·7· · · · To date, all of these Indigenous communities have ·8· ·completed traditional ecological knowledge reports, or ·9· ·"TEK reports" for short, which have been thoroughly 10· ·reviewed, considered, and factored into project 11· ·planning. 12· · · · Other Indigenous communities Benga has engaged to 13· ·varying degrees include the Samson Cree Nation, the 14· ·Ermineskin Cree Nation, the Louis Bull Tribe, the 15· ·Montana First Nation, the Foothills Ojibway First 16· ·Nation, the Shuswap Indian Band, and the Métis Nation 17· ·of British Columbia Region 4. 18· · · · Consultation to date has included the sharing of 19· ·project information, facilitating discussions around 20· ·site-specific information, site tours, fieldwork, TEK 21· ·studies, traditional use studies, workshops, and open 22· ·houses. 23· · · · Benga has worked in collaboration with Indigenous 24· ·communities to develop its work plans and mitigations 25· ·for the project.· We are proud of the extensive 26· ·consultation that has already occurred on the project; ·1· ·however, Benga also understands that consultation is ·2· ·not something that ends with project approval. ·3· ·Consultation is ongoing and will extend far into the ·4· ·future.· Benga will continue its consultation and ·5· ·engagement with Indigenous communities through the life ·6· ·of the project. ·7· · · · Mr. Chair, Benga acknowledges that the Joint ·8· ·Review Panel must review all information put before it ·9· ·with respect to potential adverse environmental effects 10· ·and the impact those effects might have on Indigenous 11· ·rights and interests.· As such, in addition to Benga's 12· ·extensive and ongoing consultation, Benga has assessed 13· ·the potential project-related effects on Indigenous 14· ·communities, and this assessment was developed and 15· ·updated to reflect Indigenous views and perspectives. 16· · · · Benga further recognizes in its assessment that 17· ·predicted effect on biophysical-valued components can 18· ·impact Indigenous valued components in both tangible 19· ·and intangible ways. 20· · · · Mr. Chair, I also want to highlight some of the 21· ·knowledge Benga has gained through the course of its 22· ·consultation and effects assessment.· Benga appreciates 23· ·that Indigenous communities who may be affected by this 24· ·project maintain a deep-rooted, cultural, and spiritual 25· ·connection to the land, the landscape, vegetation, and 26· ·wildlife surrounding the proposed mine site. ·1· · · · Several Indigenous communities have documented ·2· ·sacred places, ceremonial sites, and gathering sites in ·3· ·the Crowsnest Pass region.· These communities have ·4· ·highlighted the fundamental importance of ·5· ·intergenerational knowledge transfer to the maintenance ·6· ·of their traditional practices, language, and culture. ·7· · · · Each Indigenous community has its own stories that ·8· ·live on through its people, and many of these stories ·9· ·are connected to the lands and the waters of the 10· ·Crowsnest Pass, including those lands and waters in the 11· ·area of Crowsnest Mountain, Crowsnest Lake, Turtle 12· ·Mountain, Frank, and Grassy Mountain. 13· · · · Benga has incorporated what it has learned from 14· ·Indigenous communities into its project plan.· By way 15· ·of example, Benga has agreed to adjust the project 16· ·layout to preserve two culturally significant sites on 17· ·the southern end of the proposed coal-processing plant. 18· · · · Through ongoing consultation and information 19· ·sharing, Benga has also developed an access management 20· ·plan to accommodate access to the project site where it 21· ·is safe to do so.· We have created the opportunity for 22· ·controlled harvesting activity on privately held lands 23· ·in the area, and we have taken into account information 24· ·gained from TEK studies and traditional-use studies in 25· ·identifying priorities and mitigations in Benga's 26· ·conservation and reclamation plan, draft fisheries ·1· ·offsetting plan, and plans for ongoing monitoring. ·2· · · · Benga will continue to learn from Indigenous ·3· ·communities through the life of the project. ·4· ·Maintaining mutual respect and understanding with these ·5· ·communities will be integral to the project's success. ·6· · · · Mr. Chair, as I have mentioned, Benga's extensive ·7· ·consultation and engagement efforts are well-evidenced ·8· ·by the letters from all of the Treaty 7 First Nations ·9· ·as well as the Métis Nation of Alberta, all of which 10· ·can be found on the registry.· Benga has committed to 11· ·fulfilling the terms, commitments, and additional 12· ·mitigations outlined in agreements it has reached with 13· ·the Indigenous groups. 14· · · · Benga has made a number of basic Indigenous 15· ·commitments that are central to these agreements, 16· ·including that Benga will consult with Indigenous 17· ·communities in the development of final monitoring and 18· ·mitigation plans, that Benga will work with Indigenous 19· ·communities to finalize the reclamation plans that 20· ·reflect traditional knowledge, and Benga will implement 21· ·a community-based monitoring program that is directed 22· ·by Indigenous communities and implemented through 23· ·Indigenous monitors. 24· · · · Ongoing activities Benga is engaged in also 25· ·include the establishment of communications protocols, 26· ·baseline site surveys, and the development of ·1· · · ·employment training and contracting strategies. ·2· · · · · · Mr. Chair, that concludes my statement for this ·3· · · ·morning.· We look forward to answering any questions ·4· · · ·that the Panel and the participants might have. ·5· · · · · · Thank you. ·6· · · ·THE CHAIR:· · · · · · · ·Thank you, Mr. Houston. ·7· · · · · · Before I turn to Benga, I don't believe anybody ·8· · · ·else had requested an opportunity to cross-examine ·9· · · ·Benga on these matters, but I'll just open it up.· Are 10· · · ·there any other participants who have questions for 11· · · ·Benga before I turn to Benga? 12· · · · · · Okay.· Hearing none -- sorry, I should have said 13· · · ·before I turn to Secretariat staff questions. 14· · · · · · Ms. LaCasse or Ms. Kapel Holden, any questions for 15· · · ·this panel? 16· · · ·MS. LACASSE:· · · · · · ·No, the AER staff don't have 17· · · ·any questions, Mr. Chair. 18· · · ·THE COURT:· · · · · · · ·Thank you. 19· · · · · · Mr. Lambrecht, any questions for this panel? 20· · · ·MR. LAMBRECHT:· · · · · ·Mr. Chair, I have a number of 21· · · ·questions for the panel, and appreciate the 22· · · ·opportunity. 23· · · ·Alberta Energy Regulator Secretariat Staff 24· · · ·Cross-examines Benga Mining Limited 25· ·Q· ·MR. LAMBRECHT:· · · · ·Gentlemen, good morning. 26· · · ·Thank you for the testimony that you provided under the ·1· · · ·last question that I asked you, and this morning I had ·2· · · ·a few more questions.· They're fairly direct, and they ·3· · · ·cover some of the issues Mr. Houston discussed in his ·4· · · ·opening remarks there. ·5· · · · · · So, again, I would invite any member of the panel ·6· · · ·that is in the best position to respond to -- I would ·7· · · ·invite that person to do so, and I'll leave it up to ·8· · · ·the panel to determine who that might be. ·9· · · · · · Now, I just want to start by asking if it's fair 10· · · ·to say that the environmental impact assessment 11· · · ·prepared by Benga and informed by its ongoing 12· · · ·Aboriginal consultation has led Benga to accept as a 13· · · ·fact that there is current use of lands in the project 14· · · ·area by Indigenous peoples? 15· ·A· ·MR. HOUSTON:· · · · · ·Yes.· Yes, of course. 16· ·Q· ·All right.· Thank you, sir. 17· · · · · · I have a question about Indigenous agreements. 18· · · ·MR. LAMBRECHT:· · · · · ·And I would ask the Zoom host 19· · · ·to pull up CIAR 313.· Thank you.· And could you expand 20· · · ·that a bit so that it's a little clearer.· The font is 21· · · ·very small on the screen.· All right. 22· ·Q· ·MR. LAMBRECHT:· · · · ·Gentlemen, are you able on the 23· · · ·Benga panel to see this document? 24· ·A· ·If you give me a minute, I can pull up one on a bigger 25· · · ·screen for myself.· And that is -- do -- what was the 26· · · ·PDF page there? ·1· ·Q· ·It was PDF 38, Table 6.5-2. ·2· ·A· ·Okay.· I -- I have a bigger copy in front of me now. ·3· ·Q· ·All right.· There's two items here that I want to ·4· · · ·introduce because they form the foundation for my ·5· · · ·question. ·6· · · · · · The first one is Benga's indication in the first ·7· · · ·bullet of the middle mitigation column that it would ·8· · · ·support an Indigenous environmental stewardship ·9· · · ·committee, one of whose functions would be to provide 10· · · ·advice on environmental stewardship, land-use values, 11· · · ·and sites of cultural, spiritual, and traditional 12· · · ·importance that may arise. 13· · · · · · And then the second thing is the Indigenous -- the 14· · · ·commitments contained within agreements to Indigenous 15· · · ·groups.· If you look over on the right-hand column 16· · · ·entitled "Implementation and Effectiveness of 17· · · ·Mitigation", Benga indicates that:· (as read) 18· · · · · · Implementation of mitigation measures for 19· · · · · · hunting will be through commitments contained 20· · · · · · within agreements with the Indigenous group, 21· · · · · · as well as expected conditions of regulatory 22· · · · · · approvals. 23· · · ·And it is the commitments contained within agreements 24· · · ·with Indigenous groups aspect of that that I'd like to 25· · · ·draw your attention to. 26· · · · · · If we -- by way of further preamble, if we could ·1· · · ·turn, say, to PDF page 43, Table 6.5-3. ·2· · · · · · Now, my understanding is that Benga prepared ·3· · · ·tables like this for each Indigenous valued component. ·4· · · ·This particular one is fishing.· And this language ·5· · · ·appears -- the language that I just quoted to you ·6· · · ·appears again in the right-hand column under ·7· · · ·"Implementation and Effectiveness of Mitigation", and ·8· · · ·reference is made by Benga to implementation of ·9· · · ·mitigation matters for fishing through the commitments 10· · · ·contained within agreements with the Indigenous groups. 11· · · · · · I won't take you there, sir, but I -- I would ask 12· · · ·if you would agree that there are similar statements at 13· · · ·Table 6.5-4, at PDF 48, which deals with plant 14· · · ·gathering; PDF 53, Table 6.5-5, which deals with trails 15· · · ·and travelways; PDF 56, Table 6.5-6, which deals with 16· · · ·spiritual and cultural values; and PDF 59, Table 6.5-7, 17· · · ·which deals with, again, physical and cultural 18· · · ·heritage. 19· · · · · · And I see you nodding your head, but -- 20· ·A· ·Oh, yes. 21· ·Q· ·I think I got that right? 22· ·A· ·Yes, you did.· Those -- those are -- those wordings are 23· · · ·typical in a lot of places. 24· · · ·MR. LAMBRECHT:· · · · · ·So since -- okay.· Zoom Host, 25· · · ·you can take that down now.· Thank you. 26· ·Q· ·MR. LAMBRECHT:· · · · ·So my question, then, with ·1· · · ·that preamble is:· Given the integration of the ·2· · · ·effectiveness of mitigation measures through -- and the ·3· · · ·agreements that Benga has with Indigenous groups, can ·4· · · ·Benga confirm which Indigenous groups it has agreements ·5· · · ·with? ·6· ·A· ·I -- I think we can do that, and -- and so that would ·7· · · ·be all of the Treaty 7 First Nations.· We have a ·8· · · ·protocol with the Métis Nation of Alberta, and we're ·9· · · ·working on others. 10· ·Q· ·All right.· Thank you, sir. 11· · · · · · One moment, please. 12· · · · · · Perhaps I can take you, then, to the next 13· · · ·question.· This is a question about methodology in the 14· · · ·environmental impact assessment. 15· · · ·MR. LAMBRECHT:· · · · · ·And I'd ask the Zoom host to 16· · · ·pull up CIAR 251, the tenth addendum at Package 4, and 17· · · ·specifically at PDF page 152.· Scroll down a little 18· · · ·bit, please. 19· ·A· ·MR. HOUSTON:· · · · · ·Did you say PDF 152? 20· ·Q· ·MR. LAMBRECHT:· · · · ·Sorry.· CIAR 251, the tenth 21· · · ·addendum, Package· ·4, at PDF 152. 22· ·A· ·Okay. 23· · · ·MR. LAMBRECHT:· · · · · ·And, Zoom Host, if you could 24· · · ·scroll that page up a little bit, please.· I'd like to 25· · · ·see the chart at the bottom.· Thank you.· That's good 26· · · ·there. ·1· ·Q· ·MR. LAMBRECHT:· · · · ·Benga panel, are you able to ·2· · · ·see this page now? ·3· ·A· ·Yes. ·4· ·Q· ·All right.· I have a question about the -- the ·5· · · ·determination of significance.· And here it is my ·6· · · ·understanding of where Benga defines "nonsignificant", ·7· · · ·and it indicates that:· (as read) ·8· · · · · · Where the determination that an effect on an ·9· · · · · · Indigenous valued component is not 10· · · · · · significant that the effects are predicted to 11· · · · · · be within the range of natural variability 12· · · · · · and below guideline or threshold levels. 13· · · ·And is that an accurate statement, sir, of the criteria 14· · · ·that were used? 15· ·A· ·Yes. 16· ·Q· ·All right.· Now, can I ask you to jump, please, to 17· · · ·PDF page 148.· My understanding is that these are the 18· · · ·Indigenous valued components that Benga was asked to 19· · · ·examine in this process.· Is that a fair statement? 20· ·A· ·Yes. 21· ·Q· ·All right. 22· · · ·MR. LAMBRECHT:· · · · · ·Now, I'm going to ask the Zoom 23· · · ·host to do a little bit of an advanced search on this 24· · · ·PDF document for the phrase "not considered 25· · · ·significant". 26· ·Q· ·MR. LAMBRECHT:· · · · ·And so this is the first time ·1· · · ·that phrase appears.· And my understanding is that this ·2· · · ·incorporates the definition concerning the range of ·3· · · ·natural variability that we had discussed earlier. ·4· · · ·Would that be a fair statement to make? ·5· ·A· ·I -- I think that, plus the fact that it's not a ·6· · · ·permanent impact in that the reclamation of the project ·7· · · ·afterwards will -- will, in short, restore the hunting ·8· · · ·possibilities on the landscape. ·9· ·Q· ·All right. 10· · · ·MR. LAMBRECHT:· · · · · ·If I could ask the Zoom host 11· · · ·just to jump to the next time this appears. 12· ·Q· ·MR. LAMBRECHT:· · · · ·Mr. Houston, I don't mean to 13· · · ·question you on each time this appears, but I mean to 14· · · ·demonstrate through scrolling through this document 15· · · ·from phrase to phrase that this phrase is repeated 16· · · ·really through -- through much of the environmental 17· · · ·impact assessment.· Would you agree with that? 18· ·A· ·Yes, I -- I -- I would agree with -- that this phrase 19· · · ·appears frequently. 20· ·Q· ·All right. 21· · · ·MR. LAMBRECHT:· · · · · ·Could I ask the Zoom host to 22· · · ·do a similar search for the phrase "natural 23· · · ·variability"? 24· ·Q· ·MR. LAMBRECHT:· · · · ·So, sir, I, in my work with 25· · · ·this document, and in searching for the phrase "natural 26· · · ·variability", I saw it appear twice in this document, ·1· · · ·even though the phrase "not significant" appeared many ·2· · · ·more times.· The first appears in the definition, and I ·3· · · ·think you can see it highlighted there. ·4· · · ·MR. LAMBRECHT:· · · · · ·And if the Zoom host will go ·5· · · ·to the second passage where this appears. ·6· ·Q· ·MR. LAMBRECHT:· · · · ·It appears there again in the ·7· · · ·passage I took you too? ·8· ·A· ·M-hm. ·9· ·Q· ·So, really, my question is:· Can Benga please explain 10· · · ·or define what the parameters of natural variability 11· · · ·for the Indigenous effects are? 12· · · · · · And perhaps we can return, while Benga's 13· · · ·considering that, to the page that showed the 14· · · ·Indigenous effects.· That's page 148. 15· · · ·MR. LAMBRECHT:· · · · · ·Thank you. 16· ·A· ·So, Mr. Chair, in terms of hunting, trapping, fishing, 17· · · ·and plant gathering, I think the use of the word 18· · · ·"natural variability" relates to the resource we're 19· · · ·talking about, whether it be wildlife, fish, or -- or 20· · · ·vegetation, and related to the evaluation of those 21· · · ·natural resources where we have looked at a regional 22· · · ·study area and determined that -- and -- and I'm 23· · · ·generalizing here -- but determined that the footprint 24· · · ·of the mine is an area within a larger natural area, 25· · · ·and that temporarily using the terrain -- that is, the 26· · · ·footprint of the mine -- to mine the coal, and thereby ·1· · · ·displacing wildlife, for example, and clearing -- ·2· · · ·clearing the land, but then later reclaiming the land, ·3· · · ·and being stewards of the aquatic environment as well. ·4· · · ·Through that process, there will be changes; there will ·5· · · ·be disruptions.· But in looking at the larger landscape ·6· · · ·and understanding that -- that there are opportunities ·7· · · ·for hunting, trapping, and fishing, and plant gathering ·8· · · ·in the region outside of the footprint, that -- that -- ·9· · · ·that is where we use the term "natural variability". 10· · · ·And -- and then further understanding that at the end 11· · · ·of the project, at the end of twenty -- 25 years of 12· · · ·mining and with reclamation that all of those 13· · · ·opportunities will return to the footprint of the mine. 14· · · · · · So when we talk about natural variability with 15· · · ·respect to those -- those species, that would be, you 16· · · ·know, the framework. 17· ·Q· ·MR. LAMBRECHT:· · · · ·I would like to ask if you 18· · · ·could summarize how you applied the term to reach the 19· · · ·conclusions regarding significance, please?· The term 20· · · ·is "natural variability". 21· ·A· ·Yes.· And so the -- the -- when we use that term to 22· · · ·discuss significance, it's related to the availability 23· · · ·of other similar opportunities in the region for 24· · · ·conducting those traditional practices -- hunting, 25· · · ·trapping, fishing, plant gathering -- and continuing 26· · · ·a -- a way of life in the region, understanding that ·1· · · ·there are resources in the region and -- that are -- ·2· · · ·are suitable for that, even while the mine is in ·3· · · ·progress. ·4· · · · · · I don't know if that was clear, Mr. Lambrecht. ·5· ·Q· ·Sir, I'd like to turn to fishing, if I -- if you don't ·6· · · ·mind.· Specifically I have a few questions about ·7· · · ·fishing.· I may come back -- ·8· ·A· ·M-hm. ·9· ·Q· ·-- to this. 10· ·A· ·Yes. 11· ·Q· ·But right now I'd like to turn to fishing. 12· ·A· ·Yes. 13· · · ·MR. LAMBRECHT:· · · · · ·And so I'm going to ask the 14· · · ·Zoom host to pull up CIAR 251, the tenth addendum, 15· · · ·Package· ·4, which is entitled "Indigenous Rights 16· · · ·Land-Use and Culture and Human Health".· We're at 17· · · ·PDF· 430. 18· ·Q· ·MR. LAMBRECHT:· · · · ·Now, my question really 19· · · ·here -- there are a number of questions that are going 20· · · ·to touch on the access management plan.· So the first 21· · · ·thing I've done is to ask the Zoom host to pull up what 22· · · ·I understand to be a draft access management plan 23· · · ·contained within the materials. 24· · · · · · Is it my understanding that Benga will continue to 25· · · ·evolve this plan as it moves forward in its work on the 26· · · ·project? ·1· ·A· ·Absolutely.· And, you know, that -- even since this ·2· · · ·draft, we -- we've been evolving the plan, but the -- ·3· · · ·the point of the access management plan is -- is ·4· · · ·twofold:· one to ensure safety around the site, ensure ·5· · · ·that areas that are, let's say, industrial in nature ·6· · · ·are not -- are -- are secure; but at the same time, to ·7· · · ·acknowledge that Benga has lands in the -- in the area ·8· · · ·that will not be industrial and to -- in a controlled ·9· · · ·manner, to allow access to those lands for conduct of 10· · · ·traditional practices. 11· ·Q· ·All right. 12· · · ·MR. LAMBRECHT:· · · · · ·I'd like to ask the Zoom host 13· · · ·to go to PDF 431, please, under the heading 14· · · ·"Application".· So you may need to scroll down, Zoom 15· · · ·Host, and look for it.· Here it is.· The goals there. 16· ·Q· ·MR. LAMBRECHT:· · · · ·So I think the first goal is 17· · · ·the one that I wanted to refer to, the first and the 18· · · ·second goals there.· Do these remain the goals of the 19· · · ·access management plan that Benga is putting forward? 20· ·A· ·All of the goals together, or only the first goal? 21· ·Q· ·Well, all of the goals together. 22· ·A· ·Yes. 23· ·Q· ·All right. 24· · · ·MR. LAMBRECHT:· · · · · ·Can I ask you to go to 25· · · ·PDF page 432, please. 26· ·Q· ·MR. LAMBRECHT:· · · · ·Under the heading ·1· · · ·"Application", it indicates that there's two types of ·2· · · ·access that the access management plan would support. ·3· · · ·The first is traditional land use, which includes ·4· · · ·Aboriginal treaty rights to hunt, fish, gather, and ·5· · · ·engage in ceremonial activities, and that's the one ·6· · · ·that I want to focus on here.· And in particular, I see ·7· · · ·that the word "fish" is in there. ·8· · · · · · And when I go in this document to, say, 167, ·9· · · ·PDF· 167, under heading 4.3.2.3, I see that the Kainai 10· · · ·Nation has advised that they have a fishing interest in 11· · · ·the project area, and that this includes the westslope 12· · · ·cutthroat trout.· Do you see that, sir? 13· ·A· ·Yes.· Yes. 14· ·Q· ·All right.· And a similar statement appears at 15· · · ·PDF· page 202 for the Piikani Nation under heading 16· · · ·5.3.2.3, and a very similar statement appears that -- 17· ·A· ·M-hm. 18· ·Q· ·And then, again, at PDF· 347, under 13.3.1.3, where the 19· · · ·Métis Nation of Alberta expresses a similar interest in 20· · · ·fishing in that project area. 21· ·A· ·M-hm. 22· ·Q· ·So my question is:· Do you anticipate providing access 23· · · ·to Indigenous groups to -- to fish for westslope 24· · · ·cutthroat trout should Indigenous groups request access 25· · · ·for that purpose? 26· ·A· ·So, to be clear, the only fishing opportunities I am ·1· · · ·aware of in the project area are on Blairmore Creek and ·2· · · ·Gold Creek.· And what we've stated in our application ·3· · · ·is that the project will be maintaining a buffer from ·4· · · ·those creeks, so we'll be leaving the treaty buffer ·5· · · ·between the creeks and the active project. ·6· · · · · · Now, the project will not be in any way crossing ·7· · · ·the creek.· So access to both Blairmore and Gold Creek ·8· · · ·is and will always be available from outside the ·9· · · ·project area. 10· ·Q· ·So what I understand, then, that Benga would grant 11· · · ·access if that was requested for that purpose? 12· ·A· ·I -- Mr. Chair, I think what I said is that -- it's not 13· · · ·necessary for Benga to grant access.· Benga will not be 14· · · ·controlling or managing the lands outside of -- to -- 15· · · ·to the east of Gold Creek and to the west of Blairmore 16· · · ·Creek.· We -- we haven't applied for those lands.· We 17· · · ·don't own most of those lands, and so we -- we wouldn't 18· · · ·be -- we wouldn't be managing access to either of those 19· · · ·creeks from outside of the project area. 20· ·Q· ·All right.· Thank you, sir.· That's clear, and I 21· · · ·appreciate that clarification. 22· · · · · · Okay.· Now, in addition to the three groups that I 23· · · ·took you to in the EIA a moment ago that expressed an 24· · · ·interest in fishing in the area, are you able to 25· · · ·confirm whether there are other Indigenous groups that 26· · · ·have indicated that they have fished for westslope ·1· · · ·cutthroat trout in the project area, either past or ·2· · · ·present? ·3· ·A· ·And -- and so when -- when we're preparing these ·4· · · ·submissions to the -- to the regulators, we base what ·5· · · ·we write on what is given to us by the First Nations, ·6· · · ·and -- and so we haven't reflected for every First ·7· · · ·Nation an interest in fishing, simply because it wasn't ·8· · · ·given to us that way.· However, I would say that each ·9· · · ·of the First Nations, to a greater or lesser extent, 10· · · ·may indicate that -- that an interest in fishing is 11· · · ·something of interest, even if not necessarily 12· · · ·practised regularly. 13· · · · · · Again, I don't know if that is clear. 14· ·Q· ·Thank you, Mr. Houston. 15· · · · · · Can I take you, please, to PDF· 30 of CIAR 251, 16· · · ·tenth addendum, Package 4.· We're moving on here to 17· · · ·plant gathering, if you don't mind. 18· ·A· ·Sure. 19· · · ·MR. LAMBRECHT:· · · · · ·And could you scroll the page 20· · · ·up a little bit, please.· It's the second paragraph 21· · · ·under "Response" that I would like to refer to. 22· ·Q· ·MR. LAMBRECHT:· · · · ·Now, are you able to see this, 23· · · ·Benga panel? 24· ·A· ·Yes.· Thank you. 25· ·Q· ·So here, mention is made that a key feature of the 26· · · ·access management plan is that Benga is committing to ·1· · · ·allow Indigenous access to about 700 hectares of ·2· · · ·Benga's property adjacent to the project access road ·3· · · ·under terms and conditions contained in the access ·4· · · ·management plan? ·5· ·A· ·M-hm.· Yes. ·6· ·Q· ·And I -- and I note in the paragraph below that the ·7· · · ·access management plan, although evolving, has been in ·8· · · ·use since late 2018, and then a number of Indigenous ·9· · · ·persons have used that.· Do you see that there, sir? 10· ·A· ·Yes. 11· ·Q· ·Can you provide information on which Indigenous groups 12· · · ·have accessed the land in that time since late 2018 to 13· · · ·harvest the plants?· And, if possible, do you know what 14· · · ·species are being harvested? 15· ·A· ·So it's primarily been Piikani and some from Kainai 16· · · ·that have used -- made use of the access management 17· · · ·plan to harvest. 18· · · · · · Most of the harvesting that we're aware of is 19· · · ·lodgepole pine, and the reason we're aware of that is 20· · · ·that it's -- it -- a lodgepole pine is big, right, so 21· · · ·you can see it.· And also, we've -- we've needed to -- 22· · · ·it -- at -- sometimes take extra measures to ensure 23· · · ·there are no nesting birds in the area that the groups 24· · · ·wanted to harvest. 25· · · · · · So -- and the lodgepole pines, obviously, are used 26· · · ·by some bands as tepee poles, and so -- so we're aware ·1· · · ·of -- of that harvesting. ·2· · · · · · I'm also aware that while the First Nations are in ·3· · · ·the area, they take -- take advantage of the presence ·4· · · ·on the land to do other harvesting, but I couldn't tell ·5· · · ·you, again, because the plants are small and -- and ·6· · · ·I -- I couldn't tell you what species they harvest or ·7· · · ·what -- what use they have for those species, but I do ·8· · · ·know that lodgepole pine are harvested for -- for tepee ·9· · · ·poles. 10· ·Q· ·Mr. Houston, my understanding of your evidence -- 11· · · ·Benga's evidence is that Benga is conducting ongoing 12· · · ·consultation with Indigenous communities -- 13· ·A· ·M-hm. 14· ·Q· ·-- regarding design of mitigation measures for plant 15· · · ·gathering.· Is that -- is that a correct understanding? 16· ·A· ·Yes. 17· ·Q· ·Okay.· In recent discussions with Indigenous groups, 18· · · ·are there any new mitigations related to plant 19· · · ·gathering that have been suggested that have not been 20· · · ·incorporated into your environmental impact assessment 21· · · ·as yet? 22· ·A· ·I -- I don't think new -- new mitigations per se.· The 23· · · ·Piikani Nation, in particular, has spent the last two 24· · · ·summers doing baseline work to understand at a more 25· · · ·detailed level where certain vegetation is located. 26· · · · · · And what we have committed to First Nations is to ·1· · · ·keep them apprised of -- of our -- our clearing plans ·2· · · ·in advance of construction so that they have time to ·3· · · ·get out on the land and do their -- do -- do any ·4· · · ·harvesting that they -- they feel would be helpful. ·5· · · ·I -- but I -- I wouldn't say no, that new -- new ·6· · · ·mitigation measures. ·7· · · · · · I -- I should add to that that there's great ·8· · · ·interest in the reclamation and conservation plan, and ·9· · · ·having a hand as the project goes forward in the 10· · · ·development and improvement of the reclamation and 11· · · ·conservation plan to ensure that plants of interest to 12· · · ·First Nations are featured in the -- in -- in the 13· · · ·reclamation plan. 14· · · ·MR. LAMBRECHT:· · · · · ·Zoom Host, can ask you to turn 15· · · ·in this document, which I think is CIAR 251, tenth 16· · · ·addendum, Package 4 to PDF· 398, please.· And the text 17· · · ·I want to refer to is under heading 18.4.1.3.2.· It's 18· · · ·at the bottom of the page.· And it goes over onto the 19· · · ·next page.· So if you can scroll up.· Yeah, right 20· · · ·there.· That's perfect. 21· ·Q· ·MR. LAMBRECHT:· · · · ·Benga panel, can you -- can 22· · · ·you see this? 23· ·A· ·Yes. 24· ·Q· ·All right.· In the first bullet on PDF· page 399, Benga 25· · · ·notes that a number of Indigenous groups have 26· · · ·recommended that Benga commit to develop a biodiversity ·1· · · ·management plan in collaboration with the Indigenous ·2· · · ·groups.· And my question is:· Can Benga confirm whether ·3· · · ·the development of a biodiversity management plan as ·4· · · ·recommended by these groups is a mitigation measure ·5· · · ·which Benga is prepared to implement or is intending to ·6· · · ·implement in some way? ·7· ·A· ·Mr. Chair, I -- I would -- I would suggest that ·8· · · ·biodiversity is a key aspect of our reclamation ·9· · · ·planning, and -- and as we filed a draft conservation 10· · · ·and reclamation plan and -- which -- which will be a -- 11· · · ·a document that is continually improved upon, and which 12· · · ·document we will continue to consult extensively with 13· · · ·First Nations, I -- I would suggest that biodiversity 14· · · ·best sits within that plan, and -- and should be 15· · · ·developed in that plan in consultation with -- with the 16· · · ·First Nations.· And we've committed to do that. 17· ·Q· ·Mr. Houston, I have another question for you.· It -- it 18· · · ·relates in some way to Crowsnest Mountain and Crowsnest 19· · · ·Lake. 20· · · ·MR. LAMBRECHT:· · · · · ·So, Zoom Host, you can take 21· · · ·this document down. 22· ·Q· ·MR. LAMBRECHT:· · · · ·I think -- I could, by way of 23· · · ·preamble to this question, Mr. Houston and Benga panel, 24· · · ·ask if you had reviewed the Impact Assessment Agency of 25· · · ·Canada's written submission to the Panel?· I believe it 26· · · ·is CIAR 542. ·1· ·A· ·Yes. ·2· ·Q· ·Okay.· Now, in that document, the Impact Assessment ·3· · · ·Agency suggested that project effects will span the ·4· · · ·footprint area and the adjacent area, including ·5· · · ·Crowsnest Mountain and Crowsnest Lake.· And it might ·6· · · ·be ... ·7· · · · · · My question for you, really, here is:· For ·8· · · ·certainty, can Benga confirm whether Crowsnest Mountain ·9· · · ·and Crowsnest Lake are or are not within the boundaries 10· · · ·of the local or regional study areas? 11· · · · · · And it might be helpful in this regard to pull up 12· · · ·the diagram that shows those areas, and that is 13· · · ·CIAR 42, Section D, I believe, page 23 and 24. 14· · · · · · These, I believe, are the local study areas.· And 15· · · ·the next one, I believe, is -- at page 24, is the 16· · · ·regional study area.· So if -- if use of these maps, 17· · · ·Benga panel, might assist you in responding to that 18· · · ·question, I welcome you to reference them. 19· ·A· ·So, first of all, the local study areas and the 20· · · ·regional study areas are different for -- depending on 21· · · ·which discipline we are talking about.· The Crowsnest 22· · · ·Mountain and Crowsnest Lake are both within the 23· · · ·wildlife local study -- or regional study area and 24· · · ·certainly within the grizzly bear regional study area. 25· ·Q· ·And that -- I -- my understanding, sir, is that the 26· · · ·boundary of the grizzly study area was used as the ·1· · · ·boundary for the Indigenous study area? ·2· ·A· ·For -- for cumulative effects, yes. ·3· ·Q· ·And in their written submission, the Impact Assessment ·4· · · ·Agency of Canada identified the potential for negative ·5· · · ·changes to the viewscape and sensory environment ·6· · · ·associated with use and stewardship of Crowsnest ·7· · · ·Mountain by Indigenous peoples. ·8· · · ·MR. LAMBRECHT:· · · · · ·So, Zoom Host, you can take ·9· · · ·this down now.· Thank you. 10· ·Q· ·MR. LAMBRECHT:· · · · ·My question is:· Does Benga 11· · · ·expect there to be any sensory effects of the project, 12· · · ·whether visual, auditory, or scent, that can be 13· · · ·discerned from the various elevations of Crowsnest 14· · · ·Mountain that might be used for Indigenous use? 15· ·A· ·So depending on where you are on Crowsnest Mountain, 16· · · ·I -- I believe that the site will be visible.· And so 17· · · ·to the extent that that affects the viewscape, that -- 18· · · ·that is certainly physically -- physical possibility. 19· · · ·In -- in terms of scent, no.· In terms of sound, I 20· · · ·believe from that distance, you would hear a -- a faint 21· · · ·noise generated from the blasting, for example. 22· ·Q· ·All right.· Mr. Houston, I'd like to turn to some of 23· · · ·the sites that you made reference to in your opening 24· · · ·statement. 25· ·A· ·M-hm. 26· · · ·MR. LAMBRECHT:· · · · · ·And I will ask the Zoom host ·1· · · ·to pull up CIAR 251, Addendum 10, Package 4, at ·2· · · ·PDF· 29.· All right. ·3· ·Q· ·MR. LAMBRECHT:· · · · ·This is -- these are -- the ·4· · · ·two sites that I want to refer to specifically in this ·5· · · ·question, Mr. Houston and members of the Benga panel, ·6· · · ·are the sites that appear under the heading "DjPo-98" ·7· · · ·and "DjPo-130". ·8· · · · · · And I pulled this up because there's a helpful ·9· · · ·description of these sites here in how Benga intends to 10· · · ·manage it.· And I'd like to read out this statement 11· · · ·here, that:· (as read) 12· · · · · · They're located on freehold Benga-owned land 13· · · · · · near Blairmore Creek on the southern boundary 14· · · · · · of the proposed coal-handling and processing 15· · · · · · plant.· Benga has agreed to protect these 16· · · · · · sites and anticipates that although these 17· · · · · · sites have not been used frequently for 18· · · · · · cultural activities, the new awareness of 19· · · · · · these sites made possible by project 20· · · · · · investigations will lead to more use in the 21· · · · · · future.· And as these sites are very close to 22· · · · · · the project, access will be managed along the 23· · · · · · main access road using the access management 24· · · · · · plan to ensure that access is safe and 25· · · · · · coordinated with other project activities. 26· · · ·MR. LAMBRECHT:· · · · · ·And perhaps I could ask the ·1· · · ·Zoom host to pull up CIAR 42, Section E, at ·2· · · ·PDF· page 265.· Here's a description measure of -- if ·3· · · ·you could scroll down, please, to 98. ·4· ·Q· ·MR. LAMBRECHT:· · · · ·This is a description of the ·5· · · ·98 site in particular, and I notice in this -- my ·6· · · ·question arises because there are statements here that ·7· · · ·the CHPP -- which is the coal-handling and processing ·8· · · ·facility, as I understand that acronym.· Would that be ·9· · · ·correct, sir? 10· ·A· ·Yes, that's right. 11· ·Q· ·Will -- so it is -- Benga states here that:· (as read) 12· · · · · · It is anticipated that the CHPP will impact 13· · · · · · all or the majority of the surface on which 14· · · · · · the site is located. 15· · · ·MR. LAMBRECHT:· · · · · ·And if I can go back to ask 16· · · ·the Zoom host to go back to CIAR 251, Addendum 10, 17· · · ·Package 4, at the PDF· page 422.· And it's at the 18· · · ·bottom, so you'll need to scroll down, Zoom Host, 19· · · ·please.· Thank you.· Right there. 20· ·Q· ·MR. LAMBRECHT:· · · · ·Under the heading "Physical 21· · · ·and Cultural Heritage", gentlemen, in the last bullet 22· · · ·on PDF· page 422, Benga makes the statement that it 23· · · ·will make minor modifications to the project footprint 24· · · ·to avoid and protect pre-contact sites DjPo-98 and 25· · · ·DjPo-130. 26· · · · · · Gentlemen, in other passages of earlier iterations ·1· · · ·of some of the material Benga has filed, there was some ·2· · · ·indication that there would be an 80-square-metre ·3· · · ·excavation in the area of the coal-handling and ·4· · · ·processing facility.· So my question is -- ·5· · · ·MR. LAMBRECHT:· · · · · ·And you can take this down, ·6· · · ·Zoom Host.· Thank you. ·7· ·Q· ·MR. LAMBRECHT:· · · · ·Can Benga provide a ·8· · · ·description of the minor modifications it proposes to ·9· · · ·make to its plans to avoid and protect DjPo-98 and 10· · · ·DjPo-130 as stated in CIAR 251, Addendum 10, Package 4, 11· · · ·at page 422? 12· ·A· ·Sure.· So, Mr. Lambrecht, Mr. Chair, we haven't 13· · · ·provided a detailed layout of the coal-handling and -- 14· · · ·and processing plant.· These sites are -- you know, at 15· · · ·the scale of the mine are quite small, and so what 16· · · ·we've looked at is a combination of shifting the 17· · · ·boundaries of some ponds, shifting buildings around 18· · · ·within the -- the remaining area, and -- and, 19· · · ·effectively, avoiding the areas that we're talking 20· · · ·about. 21· · · · · · The -- the upshot, Mr. Chair, is that some of the 22· · · ·ponds won't be square, for example; they'll be oddball 23· · · ·shapes to -- to accommodate those features that we're 24· · · ·talking about.· So the -- the changes are really minor 25· · · ·and really don't -- don't even figure in the scale of 26· · · ·the documents that we filed for the application. ·1· · · ·They -- they really are commitments that will be ·2· · · ·incorporated into the detailed design of the project. ·3· ·Q· ·Mr. Houston, do I understand, then, that Benga intends ·4· · · ·to leave the surface and the land underneath the ·5· · · ·surface of these two sites untouched during project ·6· · · ·development? ·7· ·A· ·That's correct. ·8· ·Q· ·All right.· And so that 80-metre-square excavation that ·9· · · ·I referenced in passing, does that have any 10· · · ·relationship to these sites or any continued 11· · · ·relationship? 12· ·A· ·We -- since we've made this decision and confirmed 13· · · ·with -- with our engineers that avoidance is a strategy 14· · · ·that is -- is practical and -- and -- and possible, 15· · · ·we -- we haven't proceeded to excavate for the purposes 16· · · ·of the Alberta archaeological and cultural permits, so 17· · · ·we -- we -- we have decided to take the strategy of 18· · · ·protecting those sites and not disturbing them. 19· ·Q· ·All right.· Thank you.· That's helpful. 20· · · · · · I'd like to move to a part of Benga's EIA 21· · · ·described as "the cultural site discovery plan".· So 22· · · ·we -- we've talked about these two sites which I think 23· · · ·are hunting sites of some antiquity, I believe.· One of 24· · · ·Benga's statements said that one of the two sites we're 25· · · ·talking about was 9,000 years old. 26· ·A· ·They're -- these sites are actually at the confluence ·1· · · ·of Blairmore Creek and a small creek called Bois Joli ·2· · · ·[phonetic], and they are in an area where there's a -- ·3· · · ·a nice, level area around -- around the creek, so it's ·4· · · ·a natural place for making camp, and -- and obviously ·5· · · ·has been used many times throughout history.· The ·6· · · ·9,000-year-old, I -- there were a few artifacts that ·7· · · ·were found that we -- we thought may be very old. ·8· · · ·We've -- we've since done some investigation through ·9· · · ·our archaeologist and determined that maybe they're not 10· · · ·as old as -- as we initially thought.· But certainly 11· · · ·those sites would have been a natural place to set up 12· · · ·camp for -- for millennia, yeah. 13· ·Q· ·All right.· Now -- 14· · · ·MR. LAMBRECHT:· · · · · ·Now if I can ask the Zoom host 15· · · ·to pull up CIAR 313.· This is the response package to 16· · · ·JRP IR Package· ·6, Addendum 11.· And it's -- I want to 17· · · ·refer to PDF· page 59, which is Table 6.5-7. 18· ·Q· ·MR. LAMBRECHT:· · · · ·And in the column -- the 19· · · ·middle column under "Mitigation", in the third box down 20· · · ·there is where I'd like to direct your attention, sir, 21· · · ·and I have a couple questions. 22· · · · · · So let me know when you have this visible to the 23· · · ·panel. 24· ·A· ·Yes.· It's visible. 25· ·Q· ·All right.· There is a -- in -- in the middle column, 26· · · ·in the third box, under the heading "Mitigation ·1· · · ·Measures That Will Be Implemented to Reduce Adverse ·2· · · ·Effects on Unique Sites and Features".· The first ·3· · · ·bullet says:· (as read) ·4· · · · · · A cultural site discovery contingency plan ·5· · · · · · will be developed and implemented in ·6· · · · · · consultation with Indigenous communities for ·7· · · · · · culturally important sites identified during ·8· · · · · · construction or operation. ·9· · · ·MR. LAMBRECHT:· · · · · ·And if I could ask the Zoom 10· · · ·host to pull up CIAR 42, Appendix 7. 11· ·Q· ·MR. LAMBRECHT:· · · · ·There's a -- a framework that 12· · · ·Benga has put forward for this plan.· And I understand 13· · · ·that like the access management plan, that this is an 14· · · ·ongoing document that will continue to be evolved as 15· · · ·Benga develops its project.· Is that a fair 16· · · ·understanding? 17· ·A· ·Yes, and -- and I would also add that this -- this 18· · · ·particular plan isn't as far advanced as the access 19· · · ·management plan at this point. 20· ·Q· ·Right. 21· · · ·MR. LAMBRECHT:· · · · · ·Zoom Host, you can take that 22· · · ·down now.· Thank you. 23· ·Q· ·MR. LAMBRECHT:· · · · ·So my questions are:· Could 24· · · ·you -- could Benga clarify when the cultural site 25· · · ·discovery contingency plan would be implemented? 26· ·A· ·So it's -- it's a plan that is needed prior to the ·1· · · ·first -- first construction, and the intent of this ·2· · · ·plan is to have a strategy for -- or have a set ·3· · · ·procedure for dealing with any discoveries, let's call ·4· · · ·them, that may -- may be made during construction and ·5· · · ·operations.· So for excavating, for example, and some ·6· · · ·things found that -- that may be of historical, ·7· · · ·cultural significance, what -- what is the standard ·8· · · ·operating package?· You know, is it stop what you're ·9· · · ·doing?· Investigate?· Consult with the First Nations? 10· · · · · · So it's those steps and the procedure that will be 11· · · ·followed to deal with discoveries that just happen 12· · · ·during construction and operations. 13· ·Q· ·Can Benga clarify which Indigenous groups would be 14· · · ·consulted in the development and implementation of a 15· · · ·cultural site discovery contingency plan? 16· ·A· ·All of the groups we've been talking about, so all of 17· · · ·the Treaty 7 groups, Ktunaxa and the Métis. 18· ·Q· ·Now, typically a project has a life cycle, you know, on 19· · · ·planning, construction, operation, closure, 20· · · ·reclamation.· In which phases of this life cycle will 21· · · ·the cultural site discovery contingency plan be active? 22· ·A· ·Through -- through construction and operations.· Being 23· · · ·a mine, we'll be excavating for the -- you know, the 24· · · ·entire life of the mine, and possibly even after that 25· · · ·in the -- in the final reclamation, which will run a 26· · · ·couple years after operations, as we will continue to ·1· · · ·move -- move material around the site as we put it in ·2· · · ·its final configuration.· So throughout the life of the ·3· · · ·project, essentially. ·4· ·Q· ·And I think my question is a more general one.· Like, ·5· · · ·how would Benga work with its contractors or staff that ·6· · · ·might be doing the activities during the life cycle of ·7· · · ·the project to identify a cultural site that might be ·8· · · ·discovered during excavation of some kind? ·9· ·A· ·That's a good question, Mr. Lambrecht.· The "how" will 10· · · ·be part of the procedure.· Obviously, you have -- you 11· · · ·need to have a certain level of oversight and 12· · · ·monitoring of excavation activities.· You need to have 13· · · ·some basic education for employees or contractors who, 14· · · ·for example, are -- are running excavating equipment or 15· · · ·part of -- part of those activities. 16· · · · · · So the -- the "how" will -- will come down to 17· · · ·education; it will come down to a certain amount of 18· · · ·oversight by the company, knowledgeable people involved 19· · · ·in -- in the construction and operation at -- -- at all 20· · · ·levels.· But I -- I think we really do need to develop 21· · · ·the detailed procedure to identify what those positions 22· · · ·are and -- and how we will qualify people to recognize 23· · · ·and then take appropriate action. 24· ·Q· ·Thank you, sir. 25· · · · · · I'd like to move to a question on what I will call 26· · · ·the "Indigenous environmental stewardship committee". ·1· · · ·This is another committee that appears in Benga's ·2· · · ·environmental impact assessment.· My understanding is ·3· · · ·that Benga proposes to support the development of an ·4· · · ·Indigenous environmental stewardship committee as a ·5· · · ·mitigation measure for all of the Indigenous valued ·6· · · ·components.· Is that a fair -- is that a correct ·7· · · ·understanding? ·8· ·A· ·Our -- our vision, Mr. Chair, is to have a stewardship ·9· · · ·committee, which we see as a guiding body, and to have 10· · · ·a -- as an outshoot of that, a community-based 11· · · ·monitoring program which would be boots-on-the-ground 12· · · ·monitoring that is conceived by Indigenous groups 13· · · ·and -- and implemented by Indigenous groups. 14· · · · · · So those two levels -- the stewardship committee 15· · · ·we saw as a way to bring together multiple Indigenous 16· · · ·communities into one body to direct a -- a 17· · · ·comprehensive program, provide coordinated advice to 18· · · ·Benga, and be a body for -- for discussion of -- of 19· · · ·topics that affect a number of Indigenous groups. 20· · · · · · It's a concept.· We've got some buy-in from some 21· · · ·Indigenous groups.· I -- I think we would be the -- the 22· · · ·ultimate optimists if we thought that that would be -- 23· · · ·if we could implement this as -- exactly as per our 24· · · ·vision.· There's always going to be reasons why we 25· · · ·can't get everybody involved. 26· · · · · · And so what we're looking for here is kind of an ·1· · · ·80-20 approach.· If we can get a number of groups ·2· · · ·involved in a coordinated program like this and get ·3· · · ·coordinated advice and have -- have that dialogue ·4· · · ·amongst a number of communities, that -- that would be ·5· · · ·great.· If there are specific topics or groups that ·6· · · ·don't seem to fit into that mold, then we would do ·7· · · ·one-off monitoring or consultations activities to deal ·8· · · ·with those -- those one-offs. ·9· · · · · · But we are hoping to fit the majority of the 10· · · ·community-based monitoring and the Indigenous guidance 11· · · ·for the project into that -- that steering committee 12· · · ·or -- or stewardship committee as -- as we discussed. 13· ·Q· ·All right.· Recognizing that the stewardship committee 14· · · ·may be a work in progress, I have a couple of follow-up 15· · · ·questions.· Do you have a sense, gentlemen, of how 16· · · ·Benga may support this panel if it gets established? 17· ·A· ·Obviously, there's some money involved, and -- and 18· · · ·we've committed to paying the costs.· I think there's 19· · · ·also some administrative support that -- that needs to 20· · · ·be provided, and -- and we've -- we've considered that. 21· · · ·But the -- the biggest -- the biggest challenge is 22· · · ·going to be identifying who -- who sits on the -- on 23· · · ·this stewardship committee, at what level of government 24· · · ·from each community; and do we have the right resources 25· · · ·to, you know, support that; and do we have the buy-in 26· · · ·from the -- the various chiefs and council to also ·1· · · ·support this committee.· So it's -- it's -- it's not ·2· · · ·the -- it's not going to be easy, Mr. Chair, to make ·3· · · ·this happen. ·4· · · · · · The -- the alternative was eight different ·5· · · ·environmental monitoring programs with conflicting ·6· · · ·advice and -- and perhaps conflicting objectives. ·7· · · · · · So getting -- getting at least a number of the ·8· · · ·Indigenous communities together on -- on this kind of a ·9· · · ·stewardship committee, we -- we see as better for Benga 10· · · ·because we will have a -- a way to address issues 11· · · ·and -- and to debate issues, not just between ourselves 12· · · ·and a -- a community, but amongst the communities, to 13· · · ·get a -- a consolidated opinion on what's the best -- 14· · · ·best step forward.· It's better for Benga, but also 15· · · ·better for the Indigenous communities, because if there 16· · · ·is a coordinated voice saying, This is what we think is 17· · · ·the right way to -- to move on a particular issue, then 18· · · ·that carries a lot more weight than eight different 19· · · ·voices, each with a slightly different perspective. 20· · · · · · So -- so we see this as a way to take Indigenous 21· · · ·involvement in the ongoing development of the project 22· · · ·to that next step, that next level.· I agree, though, 23· · · ·Mr. Lambrecht, it's a work in progress, and -- and we 24· · · ·will be pleased as punch if we can get, you know, 60, 25· · · ·70, 80 percent buy-in into that program. 26· ·Q· ·Well, I have a couple of follow-up questions, but given ·1· · · ·your evidence that it's a work in progress, I'm -- I'm ·2· · · ·not certain how this may affect your answer.· So what I ·3· · · ·propose to do is just put the follow-up questions to ·4· · · ·you and just simply invite you to respond. ·5· · · · · · Is Benga in a position to clarify which Indigenous ·6· · · ·groups are expected to be a part of the stewardship ·7· · · ·committee? ·8· ·A· ·That's a good question, and I think, obviously, our -- ·9· · · ·our hope would be that all of the Indigenous groups who 10· · · ·feel that they need to have a voice in the project are, 11· · · ·in some way, part of that committee.· Having said that, 12· · · ·I -- I think it's also fair to say that some Indigenous 13· · · ·communities are closer and more active users of the 14· · · ·region, and so there needs to be some recognition of 15· · · ·that as well. 16· · · · · · So, again, work in progress.· We're -- we're -- 17· · · ·we're hoping that -- that there is some consolidation, 18· · · ·perhaps, around the -- the three Blackfoot bands and 19· · · ·then some joiners to that group, but we recognize that 20· · · ·may not be a plan that fits every community's 21· · · ·objectives, and so we may -- we may have to have 22· · · ·other -- other programs on the side to -- to deal with 23· · · ·objectives and specific concerns that -- that don't fit 24· · · ·into that larger -- larger grouping. 25· ·Q· ·Can Benga further clarify or describe how it sees the 26· · · ·mandate of the stewardship committee? ·1· ·A· ·So we -- we fully expect, and we -- we have written ·2· · · ·a -- a number of pages, that there will be a -- a ·3· · · ·monitoring -- or a series of monitoring programs that ·4· · · ·we will -- let's call them, "western science".· We're ·5· · · ·going to -- we're going to monitor water, the aquatic ·6· · · ·environment, air, noise, any -- any number of ·7· · · ·parameters, and -- and that -- that's -- the approach ·8· · · ·there is -- is a western science approach. ·9· · · · · · And so, first of all, we -- we want this committee 10· · · ·to understand what those monitoring programs look like, 11· · · ·what they're measuring, and we'll want to report into 12· · · ·that group with the results of that monitoring. 13· · · · · · But I -- I think there's another way to look at 14· · · ·the environment and another way to look at the 15· · · ·interaction of Indigenous groups with the environment 16· · · ·around the project, and it's that perspective that 17· · · ·we're expecting to originate from the Indigenous 18· · · ·steering committee.· And, you know, I'm not really 19· · · ·well-positioned to speculate on what that might look 20· · · ·like, but -- and it -- it may be spiritual, it may be 21· · · ·based on traditional ecological knowledge, it may be 22· · · ·based on a number of different ways of looking at the 23· · · ·universe or -- or this particular part of the universe 24· · · ·and assessing its health. 25· · · · · · So we're -- we're open to any and all approaches, 26· · · ·and approaches that are meaningful to the Indigenous ·1· · · ·community that are -- that are driven through that ·2· · · ·steering committee.· We expect those two approaches, ·3· · · ·the western science approach and the -- the ·4· · · ·community-based or Indigenous traditional approach, we ·5· · · ·expect that those will both inform an assessment of ·6· · · ·issues that are arising around the project and inform a ·7· · · ·path forward to -- to deal with those issues. ·8· · · · · · So we would expect that dialogue to occur within ·9· · · ·that -- between Benga and that steering committee and 10· · · ·to use the feedback that we get from that to inform 11· · · ·adaptive management or -- or go-forward plans for the 12· · · ·mine. 13· ·Q· ·Are you in a position to describe how traditional 14· · · ·knowledge might fit into this stewardship committee, 15· · · ·traditional knowledge that Aboriginal participants 16· · · ·might bring to the committee? 17· ·A· ·I think -- an easy one, I think, is wildlife.· So we 18· · · ·will have wildlife monitoring programs, again, using 19· · · ·western science approaches.· But I -- I think the 20· · · ·Indigenous communities, especially communities engaged 21· · · ·in hunting, trapping , tracking, in -- in the region 22· · · ·will have a perspective on wildlife that may transcend 23· · · ·our -- our western science approach, and it -- it may 24· · · ·be based on traditional ecological knowledge about the 25· · · ·behaviour of the wildlife and how that appears to be 26· · · ·changing around -- around the project. ·1· · · · · · So I -- I'm not in a position to -- to say exactly ·2· · · ·what that looks like, but that's -- that's one that I ·3· · · ·can easily imagine, Mr. Chair, where -- where ·4· · · ·assessment of the health of wildlife in the region ·5· · · ·around the project would -- would be informed by a -- a ·6· · · ·traditional perspective. ·7· ·Q· ·All right.· And during the life cycle of the project, ·8· · · ·do you know how long the stewardship committee may be ·9· · · ·operational? 10· ·A· ·I would expect that it would go well into the 11· · · ·post-operational period to continue to assess the 12· · · ·success of the reclamation or to identify areas where 13· · · ·additional work may be required after mine closure. 14· ·Q· ·So understanding the work in progress that this task 15· · · ·is, did I understand that it would run through the life 16· · · ·cycle of the project? 17· ·A· ·Yes. 18· ·Q· ·And carry on after closure and -- 19· ·A· ·Yes. 20· ·Q· ·-- reclamation? 21· ·A· ·Yes. 22· ·Q· ·Got it.· Thank you. 23· · · · · · Do you have a sense yet of what roles or tasks the 24· · · ·individual chairs on the committee or the seats or the 25· · · ·members of the committee may have? 26· ·A· ·I think we're -- we're trying to get things together, ·1· · · ·get additional buy-in.· I -- I'd rather not impose a ·2· · · ·structure on this committee from -- from Benga.· We see ·3· · · ·our role as, first of all, pulling parties into the ·4· · · ·mix, providing guidance or administrative support where ·5· · · ·we can.· But, really, I think we need to have a certain ·6· · · ·amount of that structure created by the Indigenous ·7· · · ·communities that choose to participate. ·8· ·Q· ·And I'm coming in due course to a question on ·9· · · ·Indigenous monitoring, but I was wondering if you could 10· · · ·discuss how Benga visualizes the relationship between 11· · · ·the stewardship committee and any Indigenous that long 12· · · ·term may occur? 13· ·A· ·I -- I think it's multifaceted. 14· · · · · · First of all, to be clear, Indigenous monitoring 15· · · ·serves a -- a number of goals, but two -- two -- two of 16· · · ·those -- two key objectives or goals that are served by 17· · · ·Indigenous monitoring are, firstly, to have input from 18· · · ·an Indigenous perspective on the state of the 19· · · ·environment around the project.· That -- that is very 20· · · ·much along the lines that I've already discussed. 21· · · · · · The second is to have community involvement in 22· · · ·monitoring to develop a sense of confidence or trust 23· · · ·that things are going well, and -- and you only develop 24· · · ·that by having members of the various communities on 25· · · ·the ground, understanding what monitoring is being 26· · · ·done, and being a part of that so that they can go back ·1· ·to their communities and talk about, we hope, the good ·2· ·things that are happening. ·3· · · · So in -- in terms of Indigenous participation in ·4· ·monitoring, first of all, we expect that any ·5· ·community-based monitoring programs that are ·6· ·recommended by the stewardship committee will be ·7· ·entirely managed and staffed by Indigenous participants ·8· ·from the various communities.· So that -- that would be ·9· ·one level of involvement. 10· · · · Benga also, obviously, has a -- an interest and -- 11· ·and so do the communities, to create employment 12· ·opportunities, develop Indigenous candidates for -- for 13· ·those opportunities, and to have an Indigenous 14· ·component to its own staff, and part of that would be 15· ·directed in -- in the areas of this western-based 16· ·monitoring that I was talking about. 17· · · · So we -- we see multiple benefits to achieving a 18· ·level of Indigenous participation in that part of the 19· ·program as employees or contractors to -- to Benga in 20· ·the -- in the execution of that western-based 21· ·monitoring. 22· · · · And, again, you get the same uplift from that. 23· ·You get the benefit of having those people go back to 24· ·their communities and say, Yeah, I'm -- I'm part of 25· ·that, and I can tell you that the water's clean.· I can 26· ·tell you that the air is within the -- the guidelines. ·1· · · · · · So have -- having those people go back and report ·2· · · ·those things to their -- in their communities, again, ·3· · · ·will develop that confidence and trust in -- in the ·4· · · ·project and the company. ·5· ·Q· ·Sir, during the operation of the stewardship committee, ·6· · · ·does Benga yet have a sense of how -- how it may ·7· · · ·proceed if traditional knowledge might differ from ·8· · · ·western-based scientific approaches to the same matter? ·9· ·A· ·First of all, I'm going to put that question in the 10· · · ·category of hypothetical.· It hasn't happened.· And 11· · · ·I -- I think every -- I mean, obviously, it -- it will 12· · · ·happen, and -- and when it does, we'll -- we'll have to 13· · · ·look at why are there differences?· What -- what can be 14· · · ·driving those differences?· And I think what -- 15· · · ·whenever you have a difference at a philosophical level 16· · · ·or a high level, you need to drill down into the 17· · · ·details to understand why -- why there is a difference 18· · · ·and -- and how that can be resolved.· So I can't really 19· · · ·answer your question at the hypothetical level.· We'd 20· · · ·have to come to the specific example. 21· ·Q· ·Thank you, sir. 22· · · · · · I would like to move on to access. 23· · · ·MR. LAMBRECHT:· · · · · ·And I would ask the Zoom host 24· · · ·to pull out CIAR 251, Addendum 10, Package 4, at 25· · · ·PDF· page 29. 26· ·Q· ·MR. LAMBRECHT:· · · · ·Benga panel, this is the 700 ·1· · · ·hectares that we spoke about earlier, and I have a few ·2· · · ·questions for clarification around these. ·3· · · · · · So if we could start at PDF· 29.· And I think you ·4· · · ·can scroll down, please. ·5· · · · · · Under the heading "Benga-owned private lands", ·6· · · ·gentlemen, do you see that?· Are you able to see that ·7· · · ·paragraph? ·8· ·A· ·Yes. ·9· ·Q· ·All right.· It indicates that:· (as read) 10· · · · · · Benga currently owns about 700 hectares of 11· · · · · · freehold private land to the south of the 12· · · · · · proposed pit and dump footprints along the 13· · · · · · proposed project access road.· This is the 14· · · · · · area where it tends to permit restricted use 15· · · · · · of its lands for Indigenous traditional 16· · · · · · activities under the access management plan. 17· · · ·And I want to ask you a question about the location of 18· · · ·that area, sir. 19· · · · · · This paragraph says that the area, the land, the 20· · · ·private land of Benga where this invited use would 21· · · ·occur is marked in Figure 4.5-1. 22· · · ·MR. LAMBRECHT:· · · · · ·Zoom Host, I think you can 23· · · ·jump to that by clicking on that link. 24· ·Q· ·MR. LAMBRECHT:· · · · ·And when -- and so now I'm 25· · · ·displaying a map, and I think what I see is that the 26· · · ·yellow areas are Benga's privately owned access, the ·1· · · ·dark-yellow areas.· Is that correct? ·2· ·A· ·Yes. ·3· ·Q· ·All right.· Now I do not see here -- or I could not ·4· · · ·clearly make out a boundary or -- on this map.· There's ·5· · · ·nothing in the legend that talks about how these 700 ·6· · · ·hectares might be where they are.· And so I'm -- I ·7· · · ·would like to ask you to make a clarification here, but ·8· · · ·I'm going to ask you to do it, rather than with this ·9· · · ·map, with reference to a different map that we've 10· · · ·looked at earlier.· That is CIAR 571 and PDF· page 38. 11· ·A· ·Is that 38? 12· ·Q· ·Yes, sir. 13· · · ·MR. LAMBRECHT:· · · · · ·And if you could scroll down, 14· · · ·Zoom Host, please, so we could see the bottom area of 15· · · ·this map more clearly.· Thank you.· That's sufficient. 16· ·Q· ·MR. LAMBRECHT:· · · · ·All right. 17· · · · · · Now, when I do the -- when Alberta was surveyed, 18· · · ·the land was surveyed into townships, and each township 19· · · ·has a number of sections, each section has a number of 20· · · ·quarter sections.· We've had much reference to who owns 21· · · ·which quarter section here.· When I do the math, 700 22· · · ·hectares is a little bit shy of three sections of the 23· · · ·land.· Would you agree with that rough calculation? 24· ·A· ·More or less ten quarter sections, yes. 25· ·Q· ·Okay.· So let's go with that, more or less, ten quarter 26· · · ·sections.· All right. ·1· · · · · · My question, really, is:· Can Benga provide an ·2· · · ·update to this figure that shows the boundaries of the ·3· · · ·area within which Indigenous traditional uses would be ·4· · · ·invited under the access management plan? ·5· ·A· ·So, Mr. Chair, I -- I don't know that we need a ·6· · · ·boundary.· Any of the privately held lands that are not ·7· · · ·actively involved in the industrial aspects of the ·8· · · ·project would be fair game.· So any of the Benga-owned ·9· · · ·lands that are marked in green on this map that are not 10· · · ·part of an industrial mining project, we -- we could 11· · · ·arrange access to.· Some of them, obviously, are going 12· · · ·to be closer to the industrial -- industrial 13· · · ·activities, and so we may require additional 14· · · ·precautions, such as guides or -- or specific 15· · · ·schedules; but certainly as you move further south 16· · · ·along the access road, closer to the Blairmore, any of 17· · · ·those green spaces would be spaces that we could 18· · · ·provide access to. 19· ·Q· ·Well, I guess a point for clarification, then.· Let's 20· · · ·start at the bottom of the map and -- and work our way 21· · · ·up.· You can see there what I understand to be the -- 22· · · ·the rail loadout in green? 23· ·A· ·Yes. 24· ·Q· ·Along Highway 3 that runs through Blairmore there? 25· ·A· ·Yes. 26· ·Q· ·Then the Grassy Mountain access road and what is ·1· · · ·proposed as the conveyor system? ·2· ·A· ·Yes. ·3· ·Q· ·Run from that up to what is to be the -- the ·4· · · ·coal-handling facility, I believe? ·5· ·A· ·Yes. ·6· ·Q· ·And the main area of the mine itself? ·7· ·A· ·M-hm. ·8· ·Q· ·Between the loadout loop and coal-handling facility, ·9· · · ·there are a number of quarter sections marked in green? 10· ·A· ·Yes. 11· ·Q· ·They're all generally on this map below the line that 12· · · ·is marked "MD of Ranchland No. 66".· And by "below", I 13· · · ·mean south of that line. 14· ·A· ·M-hm. 15· ·Q· ·Are any Benga-owned lands to the north of that to be 16· · · ·made available for Indigenous access under the -- the 17· · · ·plan? 18· ·A· ·Yes.· In fact, the sites we were talking about a while 19· · · ·ago, DjPo-98 and DjPo-30 are in -- well, in -- in -- 20· · · ·very close to the coal-handling and processing plant, 21· · · ·and -- and DjPo-30, I believe, is in the northwest of 22· · · ·14, in that area.· So, yes, the -- in the southeast of 23· · · ·16, absolutely.· Those are areas that could be 24· · · ·accessed. 25· · · · · · And, again, it depends on what's -- what's 26· · · ·happening and what stage of the project we're at during ·1· · · ·construction of the road and the -- and the conveyor. ·2· · · ·It may be very difficult to provide access because of ·3· · · ·all the construction activity happening along that ·4· · · ·corridor, but once -- once we're in operations, that ·5· · · ·corridor will have been constructed; it will be in ·6· · · ·operation; and it -- it would be very easy to manage ·7· · · ·access to those adjacent lands, all of those green ·8· · · ·lands. ·9· ·Q· ·All right.· So what I understand you to be saying is 10· · · ·that if Benga holds title to lands in the project area 11· · · ·and they are shown in a green shade on the map that 12· · · ·we're displaying now, CIAR 571, PDF· page 38, that 13· · · ·these -- Indigenous use may occur on these lands? 14· ·A· ·That -- that -- that's correct, Mr. Chair.· We -- we 15· · · ·haven't been more specific than that.· What we've said 16· · · ·is that provided that we could manage the access safely 17· · · ·and that there was no risk to either the -- the project 18· · · ·or to the Indigenous participants, that we would 19· · · ·arrange access through the access management plan. 20· ·Q· ·Gentlemen, does the -- that mine boundary that we have 21· · · ·had some discussion about have any bearing upon this 22· · · ·access? 23· ·A· ·The -- the mine permit boundary? 24· ·Q· ·Yes, sir. 25· ·A· ·No. 26· ·Q· ·Thank you for that clarification. ·1· ·A· ·No, not at all. ·2· ·Q· ·All right.· Can I take you, please, to this map.· And I ·3· · · ·want to look particularly at what I understand to be ·4· · · ·Section 19, and in particular the northwest quarter of ·5· · · ·19.· What I believe I see on this is the main stem of ·6· · · ·Gold Creek running through that area.· Is that correct? ·7· ·A· ·Yes, it is. ·8· ·Q· ·All right.· I thought I understood that access to that ·9· · · ·land could -- would not require access through the -- 10· · · ·necessarily require access through the -- the Grassy 11· · · ·Mountain access road and it would not fall within the 12· · · ·access management plan.· Did I misunderstand that 13· · · ·evidence, or could you clarify how that might work, 14· · · ·please? 15· ·A· ·Sure.· Sure.· So the -- the -- we wouldn't want to 16· · · ·allow access to that particular piece of land through 17· · · ·the project.· That would not -- not be our choice.· And 18· · · ·so to the extent that access is available to that part 19· · · ·of the -- the area from external -- and -- and we 20· · · ·talked extensively a week ago -- I think it was a week 21· · · ·ago -- we talked extensive ly about how there could be 22· · · ·alternate access to that -- that area. 23· · · · · · So it is land owned by Benga.· We -- we don't 24· · · ·anticipate using the -- the northwest of 19 on the east 25· · · ·side of Gold Creek for project activities, nor the 26· · · ·northeast of 19.· We wouldn't be using those pieces of ·1· · · ·land for project activities.· I think for everybody's ·2· · · ·well-being, it would be better to access that land with ·3· · · ·proper notification and through the access management ·4· · · ·plan to be sure that the Indigenous participants are -- ·5· · · ·have -- have some recognized authority to be on private ·6· · · ·land and -- and also to be sure that the -- their ·7· · · ·access is coordinated with any -- any other mining ·8· · · ·activities. ·9· · · · · · But, to be clear, the project would not cross Gold 10· · · ·Creek, so there would be no project activity on the 11· · · ·east side of Gold Creek. 12· ·Q· ·I would like to move on to a different aspect of this 13· · · ·access issue, gentlemen, and to transition to that, I 14· · · ·would like to draw your attention to that area of the 15· · · ·map, appears to be Crown land, below the mine, the 16· · · ·south dump.· And on this map, there is the words 17· · · ·"Blairmore range".· Do you see that? 18· ·A· ·Yes, I see that. 19· ·Q· ·Okay.· Now I want to move to a discussion about 20· · · ·rockslide within the project vicinity, a matter that 21· · · ·Benga has discussed, and how that might affect or how 22· · · ·that potential might be integrated into the access 23· · · ·management plan.· To do this, I would like to preface 24· · · ·this with a -- a number of other materials from the 25· · · ·record to give us a visual appreciation of -- of the 26· · · ·contours of the area. ·1· · · ·MR. LAMBRECHT:· · · · · ·And so I'm going to ask the ·2· · · ·Zoom host to pull up CIAR 42, Section A, at PDF· 160. ·3· · · · · · All right.· And if you could scroll down, Zoom ·4· · · ·Host, please, to show in particular -- yeah.· Right ·5· · · ·there is perfect.· All right. ·6· · · ·MR. LAMBRECHT:· · · · · ·Now, the reason that I wanted ·7· · · ·to bring up this map is that it's an aerial photograph ·8· · · ·that Benga included in its written materials, and it -- ·9· · · ·it helpfully shows what I understand to have been shown 10· · · ·on the previous map as the Blairmore range, and I 11· · · ·understand that that feature really is the area 12· · · ·underneath the box on this map described as "road 13· · · ·access". 14· · · · · · Is that a correct appreciation of the information 15· · · ·presented on these two maps? 16· ·A· ·So the Blairmore range, locally it's known as "Bluff 17· · · ·Mountain", and I think the extent of Bluff Mountain 18· · · ·actually reaches up to the box that's labelled 19· · · ·"Construction Camp", so it's the -- it -- it extends 20· · · ·down to Highway 3 in the south, and the -- the northern 21· · · ·extent is around that area construction camp.· And, 22· · · ·indeed, the land continues to slope down towards the -- 23· · · ·the project from there, but that's the -- I guess 24· · · ·that's what I would call the mountain. 25· ·Q· ·All right.· And I will refer to that feature as "Bluff 26· · · ·Mountain"? ·1· ·A· ·Yes. ·2· ·Q· ·All right.· And do I understand that to be generally ·3· · · ·the -- the mountain that separates the town of Blair -- ·4· · · ·or the Municipality of Crowsnest Pass from the mine ·5· · · ·site proper? ·6· ·A· ·Exactly. ·7· ·Q· ·All right. ·8· · · ·MR. LAMBRECHT:· · · · · ·Zoom Host, could you go to the ·9· · · ·next page here, please. 10· ·Q· ·MR. LAMBRECHT:· · · · ·We're now on PDF· 161.· This I 11· · · ·think is a better depiction of what you've described 12· · · ·Mr. Houston -- 13· ·A· ·M-hm. 14· ·Q· ·-- about the extent of Bluff Mountain.· It's a contour 15· · · ·map, and it does definitely show Bluff Mountain 16· · · ·extending further north towards the mine site proper. 17· · · ·And it shows some of the contours of this. 18· · · · · · And so if you could take a moment to look at the 19· · · ·contours, I'm going to -- while this map is being 20· · · ·displayed, I'm going to segue into the next reference 21· · · ·that I will ask you to look at in my -- in my 22· · · ·materials. 23· · · · · · Now, my understanding is that NRCan suggested that 24· · · ·Benga should do an assessment of the potential for land 25· · · ·fall rockslide within the area of its project, and 26· · · ·Benga did such a study.· It hired a consultant who did ·1· · · ·a desktop study that recommended ground surveys and ·2· · · ·other on the -- on-the-ground assessments.· And I ·3· · · ·believe I heard you say that Benga was going to be ·4· · · ·undertaking those ground surveys if -- if the project ·5· · · ·went ahead? ·6· ·A· ·Yes. ·7· ·Q· ·Is that -- is that all correct? ·8· ·A· ·Yes.· Right so far. ·9· ·Q· ·All right.· So I want to take you to Benga's materials 10· · · ·where it did this assessment.· And that is CIAR 42, 11· · · ·Addendum 6.· And I want to refer here to PDF· 590. 12· · · ·MR. LAMBRECHT:· · · · · ·All right.· And could you 13· · · ·scroll, please.· You might have to make this a little 14· · · ·smaller so that we can see.· The detail of this is not 15· · · ·so important as the general presentation.· That's 16· · · ·sufficient.· Thank you. 17· ·Q· ·MR. LAMBRECHT:· · · · ·Now, when Benga did this 18· · · ·assessment of potential for rockfall and terrain 19· · · ·stability, I understand the consultant divided the area 20· · · ·of study into numbered areas or lettered areas.· 'A', 21· · · ·'B', 'C', 'D', 'E', 'G', 'H', 'I', and 'J' are all 22· · · ·visible on this map? 23· ·A· ·M-hm. 24· ·Q· ·And I understand that the consultant coloured these 25· · · ·areas according to susceptibility for rockfall.· The 26· · · ·ones that are in in orange, 'D' and 'J' in particular, ·1· · · ·have a higher susceptibility. ·2· · · · · · So to define the terms in this respect, if we can ·3· · · ·go to PDF· page 584, you'll see susceptibility rating ·4· · · ·on that chart, and the orange colour is moderate to ·5· · · ·high, as I understand it, according to the analysis ·6· · · ·that was done.· Is that a -- am I reading this ·7· · · ·information correctly, gentlemen? ·8· ·A· ·Yes. ·9· ·Q· ·Okay.· And if we can go back to the map, please, 590. 10· · · ·I understand -- and I'll take you to the point -- that 11· · · ·the analyst that -- or the consultant that was hired 12· · · ·put red triangles of areas that needed to be 13· · · ·particularly looked at during the ground-proofing, and 14· · · ·these are numbered individually, and you can see here, 15· · · ·Number 1, 2, 3, 4, 6, and 7? 16· ·A· ·M-hm. 17· ·Q· ·And, really, the -- if we go, then, to PDF· page 585, 18· · · ·these are described by the analyst, and -- yeah, that's 19· · · ·fine.· It's Number 5.0.· Under 5.0 and the heading 20· · · ·"Landslide Potential Intersects Project 21· · · ·Infrastructure", the analyst writes:· (as read) 22· · · · · · A number of the project's infrastructure 23· · · · · · elements are located in areas nearby steep 24· · · · · · upper slopes; however, most of the elements 25· · · · · · are outside the fall shadows of locations 26· · · · · · flagged as having a higher landslide ·1· · · · · · susceptibility rating. ·2· · · ·And he goes on to say that:· (as read) ·3· · · · · · Infrastructure elements estimated to be in ·4· · · · · · the fall line of areas, having higher ·5· · · · · · landslide susceptibility, have been noted ·6· · · · · · with red flags on Figure 1.2 and include the ·7· · · · · · following ... ·8· · · ·And then Flags 1 and 2 are described in paragraph 1; ·9· · · ·Flags 3 and 4 are described in paragraph 2; Flag 5 in 10· · · ·paragraph 3; Flag 6 in paragraph 4; and Flag 7 in 11· · · ·paragraph 5. 12· · · · · · Gentlemen, do you see that? 13· ·A· ·Yes. 14· ·Q· ·All right.· So for the purpose of posing my question to 15· · · ·you, I want to adopt the statement here that these 16· · · ·areas with red flags are identified as having higher 17· · · ·landslide susceptibility.· Would that be -- would -- 18· · · ·are you comfortable with that? 19· ·A· ·The areas with red flags have higher susceptibility and 20· · · ·have the potential to interact with project 21· · · ·infrastructure is -- is what I understand. 22· ·Q· ·All right.· So let's go to 590.· It seems to me that 23· · · ·when I looked at the map of Benga-owned private lands 24· · · ·that some of the areas of Benga's private lands where 25· · · ·Indigenous use would be invited overlapped with some of 26· · · ·these red flags.· Number 7 in -- is a particularly -- ·1· · · ·is one because the -- paragraph 5 of the previous ·2· · · ·document talked about the potential for westward ·3· · · ·rockfall which would put the access road and the ·4· · · ·conveyor at risk, I think, which is what you are ·5· · · ·assessing? ·6· ·A· ·M-hm. ·7· ·Q· ·So my question to you is:· How would Benga propose to ·8· · · ·integrate the assessment of rockfall risk that will be ·9· · · ·doing some ground-proofing into the access management 10· · · ·plan so that it might take reasonable steps to ensure 11· · · ·the safety of those that it invites onto its private 12· · · ·lands for pursuit of Indigenous activities? 13· ·A· ·Okay.· So I think one -- one of the first things I 14· · · ·understand is that in the pursuit of Indigenous 15· · · ·activities, or in the pursuit of any activity in, let's 16· · · ·say, a pristine area, one needs to be aware of natural 17· · · ·hazards, avalanche, rockfall -- which is what we're 18· · · ·talking about here -- fall from heights, bears, one 19· · · ·needs to be aware of the environment and of -- of 20· · · ·natural hazards.· So -- so rockfall, in and of itself, 21· · · ·is -- is, today, a risk in some of the areas that 22· · · ·you're outlining, and so the -- the activities -- 23· · · ·and -- and I would advise people not to walk in areas 24· · · ·where it looks like the rocks may -- may fall.· I mean, 25· · · ·that -- that's -- that's common sense. 26· · · · · · So the areas that we're looking at here with the ·1· ·red flags, when you build a structure in an area that ·2· ·may, at some point, have a rockfall, you're -- and ·3· ·you're building it to last for 25 years, it's only ·4· ·prudent to ensure that that structure, in fact, will be ·5· ·there for 25 years and won't, at some point in time, be ·6· ·damaged by a -- a rockfall. ·7· · · · And -- and I would add that in some of these ·8· ·cases, particularly the locations closer to the pit, as ·9· ·you get in proximity to locations where a significant 10· ·amount of material is being excavated, there's blasting 11· ·going on, that as you get closer to the pit and to -- 12· ·into that area, the potential for the project to induce 13· ·a rockfall or a landslide -- and I want to acknowledge 14· ·the very helpful presentation by NRCan last week where 15· ·they talked about the different kinds of landslides and 16· ·rockfall versus a circular land movement or the various 17· ·other land -- landslides that they -- they categorize, 18· ·that was quite helpful. 19· · · · So it's -- it's only prudent that the project 20· ·should ensure that any structures, any changes to the 21· ·contours to the land that we're making as a result of 22· ·the project that we evaluate whether those structures 23· ·will be affected by a -- a potential rockslide during 24· ·the 25-year life, or if one of those structures could 25· ·induce additional risk because of -- of the movement of 26· ·dirt or -- or the use of explosives.· So I -- I think ·1· ·that's the nature of the red flags. ·2· · · · In -- in terms of how do we propose to keep ·3· ·traditional members safe when they're using the access ·4· ·management plan, I think that part of that process is ·5· ·to understand where they plan to go, what they plan to ·6· ·do, and based on our knowledge of the terrain, that ·7· ·would be the opportunity for us to advise that, Be ·8· ·careful.· That area is very steep.· There's a potential ·9· ·for rockslides.· Or, Be careful.· Grizzly bears have 10· ·been seen in that area. 11· · · · So it -- it's through the -- the procedure where 12· ·the Indigenous party notifies us of where they want to 13· ·go, what they want to do, how long they're going to be 14· ·there.· We're also going to be -- you know, if they're 15· ·chopping down lodgepole pines, for example, we're going 16· ·to want to ensure that they have appropriate safety 17· ·equipment for doing that.· So just being involved, 18· ·having that cooperative planning gives us the 19· ·opportunity to provide advice and perhaps insist on 20· ·appropriate safety precautions, and -- and that would 21· ·extend to any known areas of instability where there 22· ·may be a potential of a rockslide. 23· ·THE CHAIR:· · · · · · · ·Mr. Lambrecht, just we do need 24· ·to kind of break now.· As I indicated, one of the Panel 25· ·Members has an important commitment that couldn't be 26· ·rescheduled.· So is it okay with you if we continue ·1· ·your questions after the lunch break? ·2· ·MR. LAMBRECHT:· · · · · ·Yes, sir.· This is an ·3· ·appropriate point in my questioning for a break. ·4· ·THE CHAIR:· · · · · · · ·Okay. ·5· ·MR. LAMBRECHT:· · · · · ·Thank you, gentlemen, for your ·6· ·patience in answering my questions and providing ·7· ·evidence to the Panel. ·8· ·THE CHAIR:· · · · · · · ·Okay.· Thank you. ·9· · · · So we're going to take our lunch break now.· It's 10· ·10:55 Mountain Time.· We'll break until 12:00 Mountain 11· ·Time, so about an hour and five minutes.· And 12· ·Mr. Lambrecht will resume his questions, then followed 13· ·by Panel questions.· So thank you. 14· ·______15· ·PROCEEDINGS ADJOURNED UNTIL 12:00 PM 16· ·______17 18 19 20 21 22 23 24 25 26 ·1· ·Proceedings Taken via Remote Video ·2· ·______·3· ·November 9, 2020· · · · ·Afternoon Session ·4 ·5· ·A. Bolton· · · · · · · · The Chair ·6· ·D. O'Gorman· · · · · · · Hearing Commissioner ·7· ·H. Matthews· · · · · · · Hearing Commissioner ·8 ·9· ·M. LaCasse· · · · · · · ·AER Counsel 10· ·B. Kapel Holden· · · · · AER Counsel 11 12· ·K. Lambrecht, QC· · · · ·Joint Review Panel Secretariat 13· · · · · · · · · · · · · · Counsel 14 15· ·T. Utting· · · · · · · · IAAC Staff 16· ·E. Arruda· · · · · · · · AER Staff 17· ·D. Campbell· · · · · · · AER Staff 18· ·T. Turner· · · · · · · · AER Staff 19· ·T. Wheaton· · · · · · · ·AER Staff 20· ·A. Shukalkina· · · · · · AER Staff 21 22· ·M. Ignasiak· · · · · · · For Benga Mining Limited 23· ·C. Brinker 24 25· ·R. Warden· · · · · · · · For Ktunaxa Nation 26· ·T. Howard ·1· ·K. Poitras· · · · · · · ·For Métis Nation of Alberta ·2· · · · · · · · · · · · · · Region 3 ·3 ·4· ·Chief B. Cote· · · · · · For Shuswap Indian Band ·5 ·6· ·B. Snow· · · · · · · · · For Stoney Nakoda Nations ·7 ·8· ·R. Drummond· · · · · · · For Government of Canada ·9· ·S. McHugh 10 11· ·A. Gulamhusein· · · · · ·For Municipality of Crowsnest 12· · · · · · · · · · · · · · Pass 13 14· ·M. Niven, QC· · · · · · ·For MD of Ranchland No. 66 15· ·R. Barata 16· ·J. Nijjer (Student-at-Law) 17 18· ·B. McGillivray· · · · · ·For Town of Pincher Creek 19 20· ·D. Yewchuk· · · · · · · ·For Canadian Parks and 21· · · · · · · · · · · · · · Wilderness Society, Southern 22· · · · · · · · · · · · · · Alberta Chapter 23 24· ·R. Secord· · · · · · · · For Coalition of Alberta 25· ·I. Okoye· · · · · · · · ·Wilderness Association, Grassy 26· · · · · · · · · · · · · · Mountain Group, Berdina Farms ·1· · · · · · · · · · · · · · Ltd., Donkersgoed Feeder ·2· · · · · · · · · · · · · · Limited, Sun Cured Alfalfa ·3· · · · · · · · · · · · · · Cubes Inc., and Vern Emard ·4 ·5· ·R. Cooke· · · · · · · · ·For Crowsnest Conservation ·6· · · · · · · · · · · · · · Society ·7 ·8· ·G. Fitch, QC· · · · · · ·For Livingstone Landowners ·9· ·C. Agudelo· · · · · · · ·Group 10 11· ·M. Sawyer· · · · · · · · For Timberwolf Wilderness 12· · · · · · · · · · · · · · Society and Mike Judd 13 14· ·(No Counsel)· · · · · · ·For Barbara Janusz 15 16· ·(No Counsel)· · · · · · ·For Jim Rennie 17 18· ·S. Elmeligi· · · · · · · For Alberta Chapter of the 19· ·A. Morehouse· · · · · · ·Wildlife Society and the 20· ·S. Milligan· · · · · · · Canadian Section of the 21· ·M. Boyce· · · · · · · · ·Wilderness Society 22 23· ·J. Gourlay-Vallance· · · For Eco-Elders for Climate 24· · · · · · · · · · · · · · Action 25 26· ·L. Peterson· · · · · · · For Trout Unlimited Canada ·1· ·R. Campbell· · · · · · · For Coal Association of Canada ·2 ·3· ·(No Counsel)· · · · · · ·For Alistair Des Moulins ·4 ·5· ·(No Counsel)· · · · · · ·For David McIntyre ·6 ·7· ·(No Counsel)· · · · · · ·For Fred Bradley ·8 ·9· ·(No Counsel)· · · · · · ·For Gail Des Moulins 10 11· ·(No Counsel)· · · · · · ·For Ken Allred 12· ·(Not Present) 13 14· ·(No Counsel)· · · · · · ·For Monica Field 15 16· ·S. Frank· · · · · · · · ·For Oldman Watershed Council 17· ·A. Hurly 18 19· ·A. Porco, CSR(A)· · · · ·Official Court Reporter 20· ·______21· ·(PROCEEDINGS COMMENCED AT 12:00 PM) 22· ·THE CHAIR:· · · · · · · ·Okay.· Welcome back, everyone. 23· ·GARY HOUSTON, KEITH BOTT, Previously Affirmed 24· ·THE CHAIR:· · · · · · · ·Mr. Lambrecht, are you ready 25· ·to continue with your crosses -- or your questions? 26· ·MR. LAMBRECHT:· · · · · ·Yes, sir, I am. ·1· · · ·Alberta Energy Regulator Secretariat Staff ·2· · · ·Cross-examines Benga Mining Limited ·3· ·Q· ·MR. LAMBRECHT:· · · · ·Thank you, gentlemen.· I have ·4· · · ·a few questions to finish up with on access.· I'm going ·5· · · ·to move to the Indigenous monitoring program.· And I ·6· · · ·have a few specific questions relating to the Shuswap ·7· · · ·and the Ktunaxa, and that will conclude my questioning ·8· · · ·of this panel, I believe. ·9· · · ·MR. LAMBRECHT:· · · · · ·So I'd like to begin by asking 10· · · ·the Zoom host to pull up CIAR 251, Addendum 10, 11· · · ·Package· ·4.· And could we go, please, to page 439, and 12· · · ·can we please -- you see the heading on that page, 13· · · ·"Restricted Activities".· There is the page before, 14· · · ·438, has a heading called "Permitted Activities".· All 15· · · ·right.· Thank you. 16· ·Q· ·MR. LAMBRECHT:· · · · ·Gentlemen, are you able to see 17· · · ·the document that I've just pulled up, including the 18· · · ·two headings, "Permitted Activities" and "Restricted 19· · · ·Activities"? 20· ·A· ·MR. HOUSTON:· · · · · ·Yes. 21· ·Q· ·All right.· Do I understand that this is a list of the 22· · · ·activities that would or would not be allowed under the 23· · · ·access management plan for Indigenous uses? 24· ·A· ·I think these are general statements, Mr. Chair. I 25· · · ·know -- I'm just looking in the preceding text to -- to 26· · · ·see if we have some qualifier, but my -- the way we've ·1· · · ·applied permitted activities and restricted activities ·2· · · ·is in a general sense; and if -- if there were some ·3· · · ·need or desire to conduct a restricted activity, for ·4· · · ·example, we would have to have an extensive discussion ·5· · · ·and consider an exception to these general rules. ·6· ·Q· ·And, gentlemen, do you anticipate under the access ·7· · · ·management plan that access might be given to ·8· · · ·non-Indigenous recreational users? ·9· ·A· ·We -- we haven't excluded that -- that possibility, and 10· · · ·it certainly exists. 11· ·Q· ·Within the Benga lands that are going to be made 12· · · ·available for -- under -- the Indigenous people under 13· · · ·the access management plan, you have a sense of the -- 14· · · ·can you confirm that these include important Indigenous 15· · · ·valued components?· Obviously -- obviously Gold Creek 16· · · ·is part of one of these areas of land, but there may be 17· · · ·others.· I thought I'd ask you if you had a sense of 18· · · ·the -- of those species that may be included within 19· · · ·this area? 20· ·A· ·Certainly, Mr. Chair.· Indigenous members have entered 21· · · ·into the lands that we're talking about to harvest, and 22· · · ·so to -- to the extent that I know those activities are 23· · · ·carried on in -- in the lands we're talking about, I -- 24· · · ·I can confirm that there are at least vegetation -- 25· · · ·there is at least vegetation of interest.· We have 26· · · ·focused most of our ground truthing and work with ·1· · · ·Indigenous groups inside the footprint, and so -- with ·2· · · ·the intent to identify areas of vegetation or areas of ·3· · · ·cultural significance inside the footprint that -- that ·4· · · ·required attention. ·5· · · · · · So less -- less attention, Mr. Lambrecht, to ·6· · · ·the -- to the zones outside, but I can confirm that ·7· · · ·they seem to be of interest from a -- a gathering point ·8· · · ·of view. ·9· ·Q· ·Thank you, sir. 10· · · ·MR. LAMBRECHT:· · · · · ·Zoom Host, you can take this 11· · · ·page down, but I will refer to the same document in the 12· · · ·next question. 13· ·Q· ·MR. LAMBRECHT:· · · · ·Gentlemen, can you advise how 14· · · ·Benga proposes to proceed to consult with the different 15· · · ·Aboriginal groups in order to evolve the access 16· · · ·management plan? 17· ·A· ·Mr. Chair, with most of the Indigenous groups that are 18· · · ·proximate to the site -- and you can generally 19· · · ·interpret that to be the Treaty 7 bands and Ktunaxa -- 20· · · ·we have, either through written agreement or through 21· · · ·continuing discussions, agreed to put together 22· · · ·communication protocols so that we have correct and 23· · · ·effective access to the various communities for -- for 24· · · ·different activities.· Emergency management we talked 25· · · ·about last week, but also for communicating employment 26· · · ·opportunities or contracting opportunities, and it -- ·1· · · ·in fact, for ongoing consultation on the access ·2· · · ·management plan, communication of complaints, we -- we ·3· · · ·would include those -- those issues in our ·4· · · ·communication protocol with the various bands. ·5· ·Q· ·Finally, sir, can you advise how long you expect the ·6· · · ·access management plan to be in operation?· Would it ·7· · · ·also apply through the life cycle of the -- of the ·8· · · ·mine? ·9· ·A· ·Yes, it would, and -- and, in fact, it's an important 10· · · ·tool as the project goes on.· We've talked about our 11· · · ·progressive reclamation at various points in this 12· · · ·hearing, so we -- we expect at the end-of-mine to have 13· · · ·two-thirds of the footprint reclaimed, or at least in 14· · · ·some phase of reclamation.· And so as that reclamation 15· · · ·work progresses, there may well be parts of the 16· · · ·footprint where we would permit access for gathering 17· · · ·activities even while the operation is going on.· So 18· · · ·it's -- it's an important tool for us through the 19· · · ·entire life of the project. 20· ·Q· ·Thank you, gentlemen. 21· · · · · · And I'll come back to the life cycle question and 22· · · ·the length of the reclamation period in my next 23· · · ·question, which relates to monitoring. 24· · · ·MR. LAMBRECHT:· · · · · ·So for this, I would like to 25· · · ·ask the Zoom host to pull up the document that was 26· · · ·previously displayed, CIAR 251, Addendum 10, Package 4, ·1· · · ·and go, please, to page 24. ·2· ·Q· ·MR. LAMBRECHT:· · · · ·Gentlemen, are you able to see ·3· · · ·this page? ·4· ·A· ·Yes. ·5· ·Q· ·It's just the top paragraph in black that I want to ·6· · · ·refer to, and in particular the first sentence which ·7· · · ·talks about Benga's commitment to implement an ·8· · · ·Indigenous-led monitoring program.· Do you see that? ·9· ·A· ·Yes. 10· ·Q· ·Okay.· I have a couple questions for clarification 11· · · ·about this monitoring program. 12· · · ·MR. LAMBRECHT:· · · · · ·If the Zoom host pulls up 13· · · ·CIAR 571, at PDF· pages 10 to 11.· Just at the bottom 14· · · ·of 10, under the heading 3.2, and then carrying on to 15· · · ·page 11, there's a list here of what Benga has 16· · · ·described as its basic Indigenous commitments. 17· · · · · · Zoom Host, it's probably best if we start at 10. 18· ·Q· ·MR. LAMBRECHT:· · · · ·And when I look at the last 19· · · ·bullet on page 10 of this document, I see that this -- 20· · · ·is this included in one of the -- what is described as 21· · · ·the "basic Indigenous commitments"?· And that's -- that 22· · · ·Benga will implement -- 23· · · ·MR. LAMBRECHT:· · · · · ·Zoom Host, I can't quite see 24· · · ·the bottom of that page on my screen.· Thank you. 25· ·Q· ·MR. LAMBRECHT:· · · · ·-- a community-based 26· · · ·monitoring program that is directed by Indigenous ·1· · · ·communities and implemented through Indigenous ·2· · · ·monitors. ·3· · · · · · I think this is the same commitment that I ·4· · · ·referred to in the earlier document.· Would that be ·5· · · ·correct? ·6· ·A· ·Yes, it is. ·7· ·Q· ·All right.· So a couple questions.· Do you know what ·8· · · ·culturally defined environmental attributes might be ·9· · · ·monitored as yet? 10· ·A· ·I -- I think that what we're hoping is that -- we're 11· · · ·hoping not to put our palm print too heavily on -- on 12· · · ·this program and to allow Indigenous communities, the 13· · · ·steering committee that we talked about, to take this 14· · · ·program where they would like to see it go; and so for 15· · · ·us to, you know, put our thoughts into that -- that 16· · · ·planning and design of the program, I -- I think would 17· · · ·be counter to developing and implementing something 18· · · ·that is considered to be appropriate by the Indigenous 19· · · ·communities. 20· ·Q· ·Are you able to clarify how long the Indigenous 21· · · ·monitoring program is expected to last in terms of the 22· · · ·number of years or in respect of the life cycle of the 23· · · ·program? 24· ·A· ·Mr. Chair, we -- we envision this as an ongoing program 25· · · ·through the entire project, including, as I think I 26· · · ·mentioned this morning, for years after the operations ·1· · · ·have completed, as we're -- as we're monitoring and ·2· · · ·ensuring that the reclamation is -- is complete. ·3· · · · · · I do anticipate, Mr. Chair, that the effort and ·4· · · ·the design of the program will change through the ·5· · · ·various phases and -- and -- which would only be ·6· · · ·appropriate give -- given that the project is -- is ·7· · · ·migrating through different levels of intensity as ·8· · · ·well, so -- but it would last for the life of the ·9· · · ·project, and including years after the final operations 10· · · ·are complete. 11· · · ·MR. LAMBRECHT:· · · · · ·Zoom Host, thank you.· You can 12· · · ·take this page down now. 13· ·Q· ·MR. LAMBRECHT:· · · · ·Gentlemen, do you -- how do 14· · · ·you envision Benga's role in the monitoring program? 15· ·A· ·Again, as I mentioned this morning, when we talk about 16· · · ·a monitoring program, are we talking only about the 17· · · ·cultural or community-based monitoring program, or the 18· · · ·entire monitoring program?· Because if we're talking 19· · · ·about the entire monitoring program, I -- I think Benga 20· · · ·has responsibility for managing and executing the 21· · · ·Western-based monitoring, and -- and that's going to be 22· · · ·built into a number of approvals and conditions that -- 23· · · ·that are -- that -- that will be eventually provided 24· · · ·for the project. 25· · · · · · So that -- that is Benga's responsibility, to 26· · · ·execute and deliver on those monitoring programs. ·1· · · · · · With respect to the community-based monitoring, I ·2· · · ·think Benga's role is support, is advice, and obviously ·3· · · ·we're -- we're the ones paying the -- the bills, so we ·4· · · ·have a number of roles. ·5· · · · · · Again, without putting our palm print too heavily ·6· · · ·on the program, I -- I think Benga has a vested ·7· · · ·interest in a successful program and, for -- for ·8· · · ·reasons that we discussed again this morning, that ·9· · · ·having a successful community-based monitoring program 10· · · ·that is seen as useful and -- and is seen as successful 11· · · ·inside the communities helps to build trust and 12· · · ·confidence that we're doing the right things on -- on 13· · · ·the project. 14· ·Q· ·Thank you, sir. 15· · · · · · To clarify, I had intended to question on that 16· · · ·part of the Indigenous monitoring program you just 17· · · ·referred to as one of the basic Indigenous commitments 18· · · ·that -- in the document that I had referred to earlier, 19· · · ·if that's of assistance to you. 20· ·A· ·Yeah.· And -- and so my -- my answer stands, that we 21· · · ·would -- we would take a role of support, 22· · · ·administrative assistance, you know, advice, but we 23· · · ·would want to, to the extent possible, leave the 24· · · ·direction of that program in the hands of the -- the 25· · · ·Indigenous communities. 26· ·Q· ·And assuming that you get traditional knowledge from ·1· · · ·the Indigenous-led monitoring program, do you -- do you ·2· · · ·have a sense of how Benga might use the information ·3· · · ·that it receives through this Indigenous monitoring ·4· · · ·program? ·5· ·A· ·That's -- that's entirely dependent on what kind of ·6· · · ·information and what significance it has for the -- the ·7· · · ·project execution.· So it -- it's a little difficult ·8· · · ·for me to answer that question in a general sense. ·9· ·Q· ·Do you have a sense of whether the program, as it is 10· · · ·described, might extend to scientifically monitoring as 11· · · ·well as monitoring through traditional knowledge? 12· ·A· ·You know, one thing I can say is that in -- in our 13· · · ·discussions with some First Nations, we've -- we're -- 14· · · ·we're clearly learning from them.· For example, Piikani 15· · · ·has been doing a lot of baseline studies, and they have 16· · · ·a -- a database and a system for logging information 17· · · ·about the -- about the project footprint that has been 18· · · ·developed on other projects.· So they're bringing 19· · · ·something to this project that we -- we don't have in 20· · · ·our -- our tool kit.· So that -- that's helpful.· It's 21· · · ·going be helpful during the reclamation process to have 22· · · ·that database to refer to. 23· · · · · · I'm thinking also a recent interchange with 24· · · ·Ktunaxa Nation, and they were asking about reclamation. 25· · · ·They -- they made a recommendation that -- you know, 26· · · ·that we should look at creating some standing deadwood ·1· · · ·adjacent to the project so that, you know, woodpeckers ·2· · · ·and other wildlife that are looking for a -- a home ·3· · · ·can -- can find alternate habitat near to the project. ·4· · · ·And -- and, you know, when we took that to our -- our ·5· · · ·vegetation subject matter expert, he said, That's a ·6· · · ·good idea. ·7· · · · · · So we're learning, and we're -- we're getting ·8· · · ·advice from First Nations that is helping us to develop ·9· · · ·a better project, and we expect that to go on 10· · · ·through -- through the life of the project. 11· ·Q· ·Will there be monitoring reports; and, if so, who would 12· · · ·be responsible for preparing them? 13· ·A· ·Good question.· And I -- I think that would be one -- 14· · · ·one requirement we do put on the program, that there is 15· · · ·some documentation, and it's -- it's just good 16· · · ·practice.· We're going have to communicate amongst the 17· · · ·broader Indigenous community what has been done, what 18· · · ·is going to be done.· So documentation of programs 19· · · ·undertaken, results achieved.· That -- that's a 20· · · ·necessity and -- and a tool that we'll -- we'll make 21· · · ·sure is part of the -- of the program. 22· · · · · · Again, we anticipate that, from an administrative 23· · · ·point of view, some -- some resources may be required 24· · · ·to keep that all ticking along nicely, and -- and so 25· · · ·that's where we're prepared to assist. 26· ·Q· ·Do you anticipate that Indigenous peoples might be ·1· · · ·involved in the generation of some of the reports? ·2· ·A· ·Absolutely.· I would -- I would hope that that would be ·3· · · ·the -- the result. ·4· ·Q· ·And what do you see as the interface between the ·5· · · ·monitoring program and the Indigenal [sic] ·6· · · ·environmental stewardship committee? ·7· ·A· ·I -- I see one -- one acting at a higher level ·8· · · ·directing and recommending, you know, programs and ·9· · · ·types of programs.· So that would be at the higher 10· · · ·level.· And -- and then I see the -- the program itself 11· · · ·as a -- an execution of that higher-level strategy. 12· · · · · · But I also see the -- the stewardship committee 13· · · ·being a forum for discussing results, both from the 14· · · ·community-based monitoring program and from the -- from 15· · · ·the Western-science monitoring program, and so a forum 16· · · ·to, you know, compare, contrast, and -- and talk about 17· · · ·steps to, you know, either take advantage of happy 18· · · ·accidents or -- or to correct issues that are -- are 19· · · ·arising through the life of the project. 20· ·Q· ·All right.· Then I have one final question here on -- 21· · · ·on -- on access, and I'm going to segue to the 22· · · ·remaining two questions -- or two sets of questions. 23· · · · · · And this last question relates to the phrase "the 24· · · ·life cycle of the project".· Now, my appreciation is 25· · · ·that the operating life of the mine is well-defined. 26· · · ·The reclamation period may be a little indefinite at ·1· · · ·this distance out.· Is that a -- a fair appreciation, ·2· · · ·or does Benga have a sense of a -- a definite time span ·3· · · ·for the life cycle of the mine up to the conclusion of ·4· · · ·reclamation? ·5· ·A· ·No.· I think your assessment is fair.· As we've talked ·6· · · ·about, two-thirds of the reclamation will be complete ·7· · · ·when the operations finish.· It will take one or two ·8· · · ·years after that to, you know, put the landforms in ·9· · · ·place and -- and re-establish vegetation.· But 10· · · ·reclamation certificates for Crown land will take one 11· · · ·or two decades after that to achieve, and -- and that 12· · · ·may also be sequential, you know.· But we -- we are 13· · · ·expecting the reclamation and the monitoring of 14· · · ·reclamation to last one or two decades after the end of 15· · · ·operations. 16· ·Q· ·Right.· And we've talked about the access plan, the 17· · · ·stewardship committee, and a number of other 18· · · ·initiatives that Benga would propose to apply over the 19· · · ·life cycle of the project as mitigation -- as proposed 20· · · ·mitigation.· And I'm wondering , then, if you 21· · · ·anticipate that these commitments would extend to the 22· · · ·end of that reclamation period, being a decade or two? 23· ·A· ·I -- I think so.· Part of the land is private land 24· · · ·owned by Benga, and so Benga, as a -- as a landowner, 25· · · ·should take responsibility for how that land is -- is 26· · · ·used.· Benga will also be stewards for the Crown land ·1· · · ·as it proceeds through revegetation and reclamation, ·2· · · ·and so we will have a vested interest to ensure that ·3· · · ·any activities on those lands is compatible with the ·4· · · ·reclamation process.· So I -- I would expect that we ·5· · · ·would manage access to that area through to the end of ·6· · · ·reclamation. ·7· ·Q· ·Thank you, gentlemen. ·8· · · · · · I want to move on to a question or two regarding ·9· · · ·the Shuswap group.· My appreciation -- I don't think 10· · · ·I'm going to pull up documents here unless I need to. 11· · · ·Instead, I thought what I would use is some preambles 12· · · ·to my questioning to make sure that I understand the 13· · · ·context correctly. 14· · · · · · And I understand the context is that, in 15· · · ·Addendum 10, Benga had stated that it had not received 16· · · ·information regarding the Shuswap band's traditional 17· · · ·practices in the project area or that they could not be 18· · · ·identified in public sources; that, therefore, Benga 19· · · ·could not determine how project activities might 20· · · ·interact with the Indigenous' activities of that group. 21· · · ·Is that a fair understanding of Benga's statement in 22· · · ·the materials? 23· ·A· ·Yes.· Something's happening with your audio, 24· · · ·Mr. Lambrecht.· It's -- I'm starting to get some 25· · · ·feedback. 26· · · · · · But, in any case, I understood the question.· And, ·1· · · ·yes, you know, that -- that was a fair statement. I ·2· · · ·will say that we have had a couple of very good ·3· · · ·sessions with Shuswap in the last couple of months, and ·4· · · ·so we're starting to get to know each other a little ·5· · · ·bit better based on those recent encounters.· But ·6· · · ·certainly what we wrote at that time was correct at ·7· · · ·that time. ·8· · · · · · You're -- you're on mute. ·9· ·Q· ·Thank you.· And I'm hoping that my sound quality 10· · · ·improves. 11· ·A· ·Yeah.· It's better.· Thank you. 12· ·Q· ·Thank you. 13· · · · · · Shuswap has filed a request to participate and 14· · · ·then written submissions, and they provided some 15· · · ·discussion of their interest in those submissions, and 16· · · ·I -- I expect you -- gentlemen, that you would have 17· · · ·reviewed them. 18· ·A· ·Yes. 19· ·Q· ·All right.· So could I ask you to clarify how Benga 20· · · ·intends to consider and incorporate Shuswap's 21· · · ·information into Benga's project planning? 22· ·A· ·As I -- as I just mentioned, we're at early stages with 23· · · ·Shuswap.· We're -- we're starting to discuss with them. 24· · · ·We -- we had initial contact with the Shuswap in 2015, 25· · · ·December of 2015.· We have had a number of phone 26· · · ·conversations with them since that time, and we have ·1· · · ·been keeping them apprised of the project through, you ·2· · · ·know, written project information bulletins.· When -- ·3· · · ·when key regulatory moments have arisen, we've -- we've ·4· · · ·been communicating that with Shuswap.· But it hasn't ·5· · · ·been until a couple of months ago that we have been ·6· · · ·able to engage in a meaningful way. ·7· · · · · · So we're very much in the get-to-know-you stage, ·8· · · ·and I -- I have to emphasize that we've -- we've come ·9· · · ·to a -- a very good position with the Treaty 7 First 10· · · ·Nations, and I believe with Ktunaxa and the Métis as 11· · · ·well, that those relationships are based on many 12· · · ·years -- well, several years of exchange of 13· · · ·information, discussion, and -- and so I expect that 14· · · ·for us to fully appreciate how Shuswap will -- how -- 15· · · ·how they view the project area, how they could input 16· · · ·into the project, I expect it's not going to be 17· · · ·something that we can do overnight.· Take some time to 18· · · ·get to know each other. 19· ·Q· ·And thank you for that update on the activities and 20· · · ·discussions you've had with the Shuswap since Addendum 21· · · ·10. 22· ·A· ·M-hm. 23· ·Q· ·I wonder if you could comment on how Benga's proposed 24· · · ·mitigation measures might serve to mitigate some of the 25· · · ·effects outlined by the Shuswap in their hearing 26· · · ·submissions? ·1· ·A· ·So I -- I think what we've -- what we've committed to ·2· · · ·do is to certainly engage Shuswap on a go-forward basis ·3· · · ·as we put the finishing touches on monitoring plans; ·4· · · ·for example, as we continue to develop the reclamation ·5· · · ·plan.· And so we're looking forward to have them input ·6· · · ·into those processes. ·7· · · · · · I think that in -- in terms of participating in ·8· · · ·the monitoring program, I -- I do think we need to ·9· · · ·respect the relationships that we have with the other 10· · · ·bands and to consider that carefully, how to 11· · · ·incorporate Shuswap in -- into that process.· Certainly 12· · · ·I -- I would see them being in -- you know, apprised of 13· · · ·the results, and -- and to the extent that we can 14· · · ·incorporate it in -- in the high-level planning.· But 15· · · ·it's -- it's difficult for me at this point to -- you 16· · · ·know, without carefully considering how the other 17· · · ·Indigenous communities would be affected, to -- to make 18· · · ·any concrete statements along those lines. 19· ·Q· ·All right.· And I have a similar question with respect 20· · · ·to the -- the Ktunaxa.· In their hearing submission, 21· · · ·the Ktunaxa Nation Council proposed some additional 22· · · ·commitments and mitigation measures for your 23· · · ·consideration.· And I'm wondering if Benga can indicate 24· · · ·if it's prepared to adopt any of those recommendations 25· · · ·from the Ktunaxa specifically? 26· ·A· ·So we -- we've had -- we have had the -- the -- the ·1· · · ·long discussions with Ktunaxa over several years, in -- ·2· · · ·including a discussion of their recommendations. ·3· · · ·They're much more detailed, I will say, and technical. ·4· · · · · · In our discussions with the Ktunaxa -- I believe ·5· · · ·this was in August or July -- we went through their ·6· · · ·list in detail.· My recollection is that the vast ·7· · · ·majority of their recommendations will be, or have ·8· · · ·already been, included in reclamation plans, in ·9· · · ·monitoring plans, and -- and that we -- we're at the 10· · · ·same place.· We're already in -- in large agreement 11· · · ·with many of the things they've asked for.· That is not 12· · · ·to say that we -- we absolutely agree with everything 13· · · ·they've written, but we have gone through that list 14· · · ·with them and -- and have acknowledged where we have 15· · · ·some -- some common bases.· We would continue those 16· · · ·discussions with Ktunaxa on a path forward. 17· ·Q· ·And so informed by that dialogue, gentlemen, are you 18· · · ·able to comment on how the mitigations that you 19· · · ·propose, some of the -- might mitigate project effects 20· · · ·on issues raised by the Ktunaxa? 21· ·A· ·So I -- I think where a lot of the Ktunaxa 22· · · ·recommendations came from was from the summary 23· · · ·mitigation table that we had provided, and the -- it's 24· · · ·important to understand that the summary mitigation 25· · · ·table is a summary, and there are a lot of details in 26· · · ·the reclamation plan, for example.· I believe a lot of ·1· · · ·the Ktunaxa comments are to the effect that more detail ·2· · · ·is required around the subject or that subject, and so ·3· · · ·we -- we have pointed out to them that that detail does ·4· · · ·exist in the reclamation plans, in the monitoring ·5· · · ·plans, and so I think it's there that we -- we are of ·6· · · ·one mind. ·7· · · · · · I -- I think that there are a number of places in ·8· · · ·the Ktunaxa comments where they talk about terrestrial ·9· · · ·offsets, and that's a space where we continue to 10· · · ·differ.· We have not proposed terrestrial offsets as 11· · · ·part of this project, and so that -- that's an area 12· · · ·where we are -- are not in full agreement.· But we 13· · · ·continue to talk with Ktunaxa, and we will continue to 14· · · ·work with them so that they understand where we have 15· · · ·already incorporated the -- some of their more 16· · · ·technical recommendations. 17· ·Q· ·Thank you, gentlemen. 18· · · · · · I need to consult with some of the federal staff 19· · · ·on the panel here for a moment, and if you don't mind, 20· · · ·I'm just going to put myself on mute while I inquire if 21· · · ·there's anything further that I need to ask of you. 22· · · ·One moment, please. 23· · · · · · Gentlemen, Benga has proposed a terrestrial 24· · · ·offsetting plan.· Do you recall that? 25· ·A· ·No. 26· ·Q· ·Okay. ·1· ·A· ·Where -- where are you referring? ·2· ·Q· ·Yes.· In the Ktunaxa hearing submission, CIAR 564. ·3· · · ·MR. LAMBRECHT:· · · · · ·Zoom Host, perhaps we might ·4· · · ·pull this up.· And if we go, please, to PDF· 34 and ·5· · · ·search for the phrase "offsetting". ·6· · · · · · Can we go back to 34, please?· All right.· I don't ·7· · · ·quite see it here, but my appreciation is that the ·8· · · ·Ktunaxa made reference to their request for a ·9· · · ·terrestrial offsetting plan, asking Benga to commit to 10· · · ·one, and I understand that it would compensate for the 11· · · ·loss of vegetation, traditional plants, forest plant 12· · · ·communities, wetlands, and wildlife habitat that might 13· · · ·be lost from the project before reclamation. 14· · · · · · Could you comment on how Benga has considered that 15· · · ·and whether Benga might be prepared to accept that 16· · · ·recommendation? 17· ·A· ·So as I just mentioned, Benga is not in agreement with 18· · · ·an offsetting plan.· We've -- we've assessed the 19· · · ·significance of changes in the natural environment, and 20· · · ·as we discussed early in our -- our session here, 21· · · ·we've -- we've judged those not to be significant 22· · · ·and -- and based on the -- the fact that, in our 23· · · ·judgment, there are other opportunities in the region, 24· · · ·and -- and so that the -- the effects are within the 25· · · ·bounds of natural variation.· I -- I think you'd recall 26· · · ·that discussion. ·1· · · · · · Based on that and based on the fact that Benga is ·2· · · ·required to reclaim the land to an equivalency status ·3· · · ·and that we have committed to do that, we -- we do not ·4· · · ·consider that a terrestrial offsetting plan is ·5· · · ·necessary. ·6· ·Q· ·All right.· And I believe I may have misspoken earlier, ·7· · · ·so just for the record, understand that it was the ·8· · · ·Ktunaxa that had put forward this proposal, and you've ·9· · · ·just described your response to that? 10· ·A· ·That's right.· Thank you. 11· ·Q· ·All right.· Thank you, gentlemen.· I don't have any 12· · · ·further questions for you on this topic.· I appreciate 13· · · ·your patience in answering my questions, and thank you 14· · · ·for your evidence to the Panel today and throughout the 15· · · ·proceedings. 16· ·A· ·Thank you. 17· · · ·THE CHAIR:· · · · · · · ·Thank you, Mr. Lambrecht. 18· · · · · · Mr. O'Gorman, any questions? 19· · · ·MR. O'GORMAN:· · · · · · Thank you, Mr. Chair.· I do 20· · · ·just have one -- one question, or it might be one or 21· · · ·two subquestions. 22· · · ·Alberta Energy Regulator Panel Questions Benga Mining 23· · · ·Limited 24· ·Q· ·MR. O'GORMAN:· · · · · Good afternoon, Mr. Houston. 25· ·A· ·MR. HOUSTON:· · · · · ·Good afternoon. 26· ·Q· ·There was one thing that came up that I was a little ·1· · · ·confused by, so I wonder if you could clarify. ·2· · · · · · Early in Mr. Lambrecht's questions, he was talking ·3· · · ·with you about fishing and the potential -- I think the ·4· · · ·phrase that he identified you wrote in the EIS in a ·5· · · ·couple of places for several of the Indigenous groups ·6· · · ·were that they identified a fishing interest in the ·7· · · ·project area. ·8· · · · · · So I wanted to see if we could be a little more ·9· · · ·specific than that.· Are you aware currently -- and for 10· · · ·"currently", let's consider, you know, in the last few 11· · · ·years since you submitted the -- the -- the EIS -- of 12· · · ·whether or not there are Indigenous people that are 13· · · ·fishing in either Gold or Blairmore Creek for westslope 14· · · ·cutthroat trout? 15· ·A· ·I am not aware of any specific occasions when that may 16· · · ·have happened.· A number of Indigenous groups have 17· · · ·indicated that historically they have fished for 18· · · ·westslope cutthroat trout, but as we are not 19· · · ·controlling access to Blairmore, Gold Creeks, we have 20· · · ·some land, as Mr. Lambrecht pointed out, that -- where 21· · · ·we have private land on both sides of -- of Gold Creek 22· · · ·or Blairmore Creek.· But certainly we can't control 23· · · ·access to Blairmore or Gold Creek, and certain reaches 24· · · ·of the creeks would be outside of our -- our access 25· · · ·management plan. 26· · · · · · So I -- I can't -- I can't -- I don't know of any ·1· · · ·instances where there has been fishing of westslope ·2· · · ·cutthroat trout, but I -- I can't rule it out. ·3· ·Q· ·Okay.· That's all I needed to know.· Thank you very ·4· · · ·much. ·5· · · ·THE CHAIR:· · · · · · · ·Thank you. ·6· · · · · · Mr. Matthews, any questions? ·7· · · ·MR. MATTHEWS:· · · · · · Yes. ·8· ·Q· ·MR. MATTHEWS:· · · · · Good afternoon, Mr. Houston. ·9· · · ·Thank you for sharing your knowledge.· I just have a 10· · · ·couple questions about -- with regard to culture and 11· · · ·spiritual values. 12· · · · · · Have any of Benga staff or yourself participated 13· · · ·in Indigenous ceremonies in the area? 14· ·A· ·Yes, we have -- we have participated in certain 15· · · ·ceremonies with some of the bands, particularly around 16· · · ·some of the activities on the site.· We've had -- we've 17· · · ·had ceremonies prior to doing some of the 18· · · ·archaeological work, for example, and we have discussed 19· · · ·and committed to other ceremonies related to -- prior 20· · · ·to construction and prior to disturbing the land, so 21· · · ·there -- there have been a -- a number of ceremonies. 22· · · · · · Some of our staff, not myself, have been invited 23· · · ·to ceremonies not related to the project, but because 24· · · ·of the relationships, some of our staff have been 25· · · ·invited and participated in some of the traditional 26· · · ·ceremonies. ·1· ·Q· ·Thanks.· So what -- what is Benga's understanding of ·2· · · ·why -- or for why Aboriginal groups or Indigenous ·3· · · ·groups have ceremony? ·4· ·A· ·It -- it's largely to do with a belief system, a ·5· · · ·spiritual connection to the land, and keeping that part ·6· · · ·of their lives in -- in harmony.· I -- I'm sorry if I ·7· · · ·can't explain it much -- much better than that. ·8· ·Q· ·And just -- I guess related to this is do you feel ·9· · · ·that, from your understanding, that ceremony has a 10· · · ·connection to the Indigenous valued components? 11· ·A· ·I -- I think to the extent that the spiritual aspects 12· · · ·of their relationship to the land, their culture, their 13· · · ·language are -- are connected in a way that may not be 14· · · ·the same way I connect to the land, for example.· I -- 15· · · ·I think that ceremony, if that's part of their 16· · · ·traditional relationship with the land and -- and their 17· · · ·way of managing that side of their lives, I -- I think, 18· · · ·absolutely, it's important. 19· ·Q· ·Thank you. 20· · · · · · Now, with regard to -- you can confirm this. I 21· · · ·think you -- last week it was mentioned that the 22· · · ·operating costs for -- annual operating costs would be 23· · · ·roughly $290 million? 24· ·A· ·I believe that's the figure.· I don't have my notes in 25· · · ·front of me. 26· ·Q· ·I wonder if you can share with us what percentage of ·1· · · ·that amount would be attributable to Indigenous goods ·2· · · ·and services and mitigation plans? ·3· ·A· ·I -- I can't.· We -- we -- we don't have a fixed number ·4· · · ·in mind, and a lot of factors come to play when ·5· · · ·we're -- we're dealing with what is possible and -- and ·6· · · ·what is practical.· So I -- we don't have a fixed ·7· · · ·number.· What we have committed to is -- is working ·8· · · ·with Indigenous groups to build capacity, to build -- ·9· · · ·to build the volume of economic activity through this 10· · · ·project. 11· · · · · · And what -- what we keep coming back to, 12· · · ·Mr. Matthews, you know, if you're talking about a 13· · · ·pipeline project or something like that, quite often, 14· · · ·your biggest economic impact is in the one- or two-year 15· · · ·construction period, and so it's a -- a big impulse, 16· · · ·and then -- and then nothing.· Here we're talking at -- 17· · · ·with a mine of 25 years of fairly even economic 18· · · ·activity, and so there's the capacity through this 19· · · ·project to start small and build -- build that level of 20· · · ·economic activity through the life of the project, and 21· · · ·build the capacity of -- of the Indigenous community to 22· · · ·operate in -- in the economic environment more 23· · · ·successfully.· So there's 25-year life that -- and 24· · · ·that -- and that length of time is going to give us the 25· · · ·opportunity to continually work and -- and to 26· · · ·continually develop those -- those aspects of the ·1· · · ·project. ·2· ·Q· ·Along that same line, the Stoney Nakoda, in their ·3· · · ·submission, suggested or asked for a commitment for ·4· · · ·15 percent of the employment and 15 percent of the ·5· · · ·procurement.· I'm just wondering, do you believe ·6· · · ·through your research or through your community ·7· · · ·profiling that communities have the -- today have the ·8· · · ·capacity to achieve those goals? ·9· ·A· ·I -- I think each community is in a different place, 10· · · ·and some communities are -- are focused in -- on -- on 11· · · ·a different -- different opportunities, but in general, 12· · · ·we expect to have to build capacity through this 13· · · ·project as opposed to finding it just laying on the 14· · · ·ground ready to be picked up.· So I -- I think there's 15· · · ·going to be a -- an opportunity here to work together 16· · · ·and, again, use that 25 years to develop that capacity 17· · · ·and grow the capacity so that -- so that 25 years from 18· · · ·now, we're in a different position. 19· ·Q· ·Okay.· Thank you. 20· · · · · · And then last question:· Mr. Lambrecht, as -- as 21· · · ·well as in your evidence, he suggested that there will 22· · · ·be community-based monitoring.· So from what I 23· · · ·understand, you're basically leaving it up to the 24· · · ·community members or the member who's representative on 25· · · ·each of the -- on the environmental stewardship 26· · · ·committee, let's say, to monitor aspects of the ·1· · · ·community, like community health, impact of a change or ·2· · · ·loss of a valued component; is that correct? ·3· ·A· ·So when we talk about community-based monitoring, it's ·4· · · ·monitoring for the benefit of the community, but it's ·5· · · ·still monitoring of the project.· So we're -- we're -- ·6· · · ·we're looking for -- in that program, we're looking for ·7· · · ·a connection to the project, what monitoring will help ·8· · · ·us to deliver a better value-adding project for the ·9· · · ·communities. 10· · · · · · So we -- we would expect that that community-based 11· · · ·monitoring would look at the effects of the project 12· · · ·either on the environment or on the community and -- 13· · · ·and its effects. 14· ·Q· ·Okay.· Well, thank you very much.· Thank you. 15· ·A· ·Thank you. 16· ·Q· ·THE CHAIR:· · · · · · ·Thank you, gentlemen.· Just 17· · · ·one follow-up question. 18· · · · · · I noted that the Ktunaxa Nation Council had 19· · · ·requested that the Panel recommend, as a condition of 20· · · ·the project approval, that Benga be required to fund 21· · · ·the preparation of an Indigenous Nations-led cumulative 22· · · ·effects management strategy for the project.· So I'm 23· · · ·just wondering about what Benga's views are on that 24· · · ·recommendation and the need for an approval condition. 25· ·A· ·So, Mr. Chair, I -- I think I'd like to know more about 26· · · ·that.· It's difficult to encapsulate such a ·1· · · ·broad-reaching recommendation in the 20 words that ·2· · · ·are -- you've just mentioned. ·3· · · · · · I -- I think that Benga would be willing -- ·4· · · ·especially if it was supported by the environmental ·5· · · ·stewardship committee, I think Benga would be willing ·6· · · ·to support that kind of program, but I think it ·7· · · ·requires some definition and some direction. ·8· ·Q· ·Okay.· Thank you, Mr. Houston. ·9· · · · · · Those are all of our questions. 10· · · · · · Mr. Brinker, any re-direct you would like to do? 11· · · ·MR. BRINKER:· · · · · · ·No, Mr. Chair.· We have no 12· · · ·re-direct. 13· · · ·THE CHAIR:· · · · · · · ·Okay.· Thank you. 14· · · · · · So, again, from the response this morning, I don't 15· · · ·believe Stoney Nakoda is here or plans to provide any 16· · · ·direct evidence.· I have not heard anything to the 17· · · ·contrary. 18· · · · · · So next up would be the Ktunaxa Nation Council. 19· · · ·I'm going to suggest we just take ten minutes -- a 20· · · ·ten-minute break to allow the Panel to kind of organize 21· · · ·itself and get ready.· And just a reminder that we will 22· · · ·need to swear or affirm any new witnesses. 23· · · · · · So it's ten to 1.· So we'll return at 1 :00. 24· · · ·(ADJOURNMENT) 25· · · ·THE CHAIR:· · · · · · · ·Okay.· Welcome back, 26· · · ·everybody.· So next up is Ktunaxa Nation Council.· And ·1· ·I'm not sure who's leading the panel, but if you could ·2· ·introduce yourselves, and we'll get the witnesses sworn ·3· ·or affirmed. ·4· ·MR. HOWARD:· · · · · · · Thank you, Mr. Chair.· I have ·5· ·put on a headset since my sound check this morning. ·6· ·Can you confirm that you can hear me clearly? ·7· ·THE CHAIR:· · · · · · · ·I can.· You're a little soft, ·8· ·but I can hear you, yeah. ·9· ·MR. HOWARD:· · · · · · · Thank you.· I'll try to speak 10· ·up a little more.· My name is Tim Howard.· I'm legal 11· ·counsel to the Ktunaxa Council, also known as "the 12· ·KNC", which represents the Ktunaxa Nation.· If 13· ·acceptable to the Chair, I propose to introduce the 14· ·members of the KNC witness panel, after which they can 15· ·be sworn, and we will have their evidence adopted. 16· ·Does that work for you? 17· ·THE CHAIR:· · · · · · · ·It does.· Thank you, 18· ·Mr. Howard. 19· ·MR. HOWARD:· · · · · · · Thank you.· There are six 20· ·members of the Ktunaxa witness panel.· The first I'll 21· ·begin with is Ray Warden.· Mr. Warden is a Ktunaxa 22· ·citizen and a member of the Ktunaxa community of Aq'am, 23· ·which is A-Q-A-M, a graduate of the Nicola Valley 24· ·Institute of Technology program in integrated land and 25· ·resource management.· Mr. Warden has worked with the 26· ·KNC since 2002, with over 18 years of experience in ·1· ·Indigenous land and resource management. ·2· · · · He is the current chair of the Ktunaxa Nation ·3· ·Council lands and resource council, and he will be ·4· ·addressing Ktunaxa use and occupation, along with ·5· ·Dr. Craig Candler. ·6· · · · The second member is Ms. Nicole Kapell.· That's ·7· ·K-A-P-E-L-L.· She is the team lead of the knowledge, ·8· ·lands, and resources sector of the KNC.· And she has ·9· ·been project lead for the KNC on the Grassy Mountain 10· ·mining project.· Ms. Kapell has a master's in 11· ·environmental and management -- sorry, in environmental 12· ·management and is a registered professional 13· ·archaeologist in BC with over ten years' experience in 14· ·Indigenous engagement in the environmental assessment 15· ·processes.· She will be addressing cumulative effects 16· ·on behalf of the witness panel. 17· · · · The third witness is Dr. Craig Candler, who holds 18· ·a doctorate in cultural anthropology.· Dr. Candler has 19· ·approximately 25 years' experience working with 20· ·Indigenous communities in Alberta and BC in 21· ·environmental assessment processes for major projects 22· ·that have included the Jackpine Mine, Site C, and the 23· ·Teck Frontier oil sands project.· He is a principal 24· ·with Reciprocity Research, and Dr. Candler is the 25· ·author of the report that is attached as Appendix 1 to 26· ·the KNC's written submissions. ·1· · · · Dr. Candler will, in conjunction with Mr. Warden, ·2· ·be speaking to Ktunaxa use and occupation, and he will ·3· ·also contribute to evidence with respect to cumulative ·4· ·effects, along with Ms. Kapell. ·5· · · · The fourth witness is Marlene Machmer, ·6· ·M-A-C-H-M-E-R.· Ms. Machmer is a registered ·7· ·professional biologist and managing director of Pandion ·8· ·Ecological Research.· She holds a master's in science ·9· ·and ecology and has over 30 years of experience with 10· ·ecosystem wildlife habitat biodiversity inventory and 11· ·various other aspects of land and resource management. 12· ·She is currently implementing various ecosystem and 13· ·biodiversity management restoration plans for Teck 14· ·Metals and other parties in the Elk Valley in BC.· And 15· ·Ms. Machmer will be addressing the wildlife, 16· ·vegetation, soil and terrain, and reclamation elements 17· ·of the KNC's evidence. 18· · · · The last two witnesses are both on the aquatics 19· ·and fisheries side.· The first is Jesse Sinclair, who 20· ·is an aquatic biologist with 15 years of experience in 21· ·conducting water-quality and sediment-quality 22· ·assessments in Canada and the United States.· He has 23· ·provided technical support for the KNC since 2013 and 24· ·served as a member of the technical advisory committee 25· ·during the development of the Elk Valley water-quality 26· ·plan.· He is currently a member of the Elk Valley ·1· · · ·monitoring committee.· Mr. Sinclair is a registered ·2· · · ·professional biologist, and he will be addressing water ·3· · · ·quality. ·4· · · · · · The final witness is Chris Burns. ·5· · · · · · I should have also mentioned that Mr. Sinclair is ·6· · · ·with LGL Limited, as is Mr. Burns. ·7· · · · · · Mr. Burns is a senior fisheries biologist at LGL ·8· · · ·with 20 years' experience in aquatic ecology and ·9· · · ·fisheries management.· He has developed and implemented 10· · · ·numerous metal-mining aquatic effects monitoring 11· · · ·studies throughout Canada and works with the KNC on 12· · · ·mining-related aquatic effects.· Mr. Burns will be 13· · · ·addressing the aquatic effects portion of the KNC's 14· · · ·evidence. 15· · · · · · With that introduction, I believe the witness 16· · · ·panel is ready to be sworn or affirmed. 17· · · ·RAY WARDEN, NICOLE KAPELL, CRAIG CANDLER, 18· · · ·MARLENE MACHMER, JESSE SINCLAIR, CHRIS BURNS, Affirmed 19· · · ·(Current use of land and resources, Indigenous rights, 20· · · ·culture, and other matters related to potential impacts 21· · · ·on Indigenous communities) 22· · · ·Direct Evidence of Ktunaxa Nation Council 23· ·Q· ·MR. HOWARD:· · · · · · Thank you.· I will now have 24· · · ·Ms. Kapell on behalf of the KNC adopt the KNC's written 25· · · ·evidence. 26· · · · · · Ms. Kapell, can you hear me? ·1· ·A· ·MS. KAPELL:· · · · · · Yes, I can. ·2· ·Q· ·So, Ms. Kapell, I'm going to identify three documents ·3· · · ·which are found on the Impact Assessment Agency ·4· · · ·registry, and I will then be asking you to confirm that ·5· · · ·they represent the evidence of the KNC. ·6· · · · · · Going in the order that they appear in the ·7· · · ·registry in date order, the first is information ·8· · · ·requests of KNC on the sufficiency and technical merit ·9· · · ·of the Grassy Mountain Coal Project's environmental 10· · · ·impact assessment submitted January 21st, 2019, and the 11· · · ·reference number is 178. 12· · · · · · The second is an information request of the KNC on 13· · · ·the sufficiency and technical merit of the Grassy 14· · · ·Mountain Coal Project's environmental impact 15· · · ·assessment, Addendum 11, submitted May 4th, 2020, 16· · · ·Reference Number 345. 17· · · · · · And the third is the written submission of the 18· · · ·KNC, dated September 25th, 2020, including Appendix 1, 19· · · ·report of the Ktunaxa Nation's rights and interests in 20· · · ·relation to Benga Mining Ltd.'s proposed Grassy 21· · · ·Mountain Project, and Appendix 2, KNC response to 22· · · ·Addendum 12 , Reference Number 564. 23· · · · · · Ms. Kapell, can you confirm that this evidence was 24· · · ·prepared by and on behalf of the KNC and under its 25· · · ·direction and control? 26· ·A· ·Yes, I can confirm that. ·1· ·Q· ·And do you have any corrections today to make to this ·2· · · ·evidence? ·3· ·A· ·No, I don't. ·4· ·Q· ·And is this evidence, to the best of your knowledge, ·5· · · ·accurate? ·6· ·A· ·Yes, it is. ·7· ·Q· ·And do you adopt the contents of this evidence as the ·8· · · ·evidence of the Ktunaxa Nation Council in this hearing? ·9· ·A· ·Yes, I do. 10· ·Q· ·Thank you. 11· · · ·MR. HOWARD:· · · · · · · Zoom Manager, we had requested 12· · · ·that Document Number 564 be available to be broadcast 13· · · ·on the screen.· If you could bring that up, please. 14· · · ·Thank you. 15· · · · · · So, Mr. Chair, I think it may be helpful for the 16· · · ·Panel to know the sequence in which the Ktunaxa 17· · · ·witnesses will present because it doesn't exactly match 18· · · ·the sequencing in which -- the topics they will address 19· · · ·appear in the written submissions, so there may be some 20· · · ·moving up and down and back and forth. 21· · · · · · So I'm just going to list the order of 22· · · ·presentation of the Ktunaxa witnesses. 23· · · · · · Mr. Warden will be first, followed by Mr. Candler. 24· · · ·As I indicated, they will speak to Ktunaxa use and 25· · · ·occupation, which begins on page 2 of the document 26· · · ·which is on the screen.· They will be followed by ·1· · · ·Mr. Sinclair, and then by Mr. Burns.· Ms. Machmer will ·2· · · ·then follow Mr. Burns, and Ms. Kapell and Mr. Candler ·3· · · ·will finish addressing the topic of cumulative effects. ·4· · · · · · So absent any procedural issues or questions from ·5· · · ·the Panel or Mr. Chair, we are ready to proceed. ·6· · · ·THE CHAIR:· · · · · · · ·Okay.· Yeah.· No.· That's ·7· · · ·fine, Mr. Howard.· Please proceed. ·8· ·Q· ·MR. HOWARD:· · · · · · Mr. Warden? ·9· ·A· ·MR. WARDEN:· · · · · · Thank you.· Good day.· My name 10· · · ·is Raymond Warden, and I'm the director of lands and 11· · · ·resources for Ktunaxa Nation Council. 12· · · · · · Today I will provide some opening comments to set 13· · · ·the context for KNC's review of this project at 14· · · ·presentation to the Panel. 15· · · · · · First, I feel it is important to mention that 16· · · ·there is a lot of coal-mining activity in the Elk 17· · · ·Valley region of (OTHER LANGUAGE SPOKEN), which is the 18· · · ·Elk Valley we know as in British Columbia. 19· · · · · · The four existing coal mines in that area are the 20· · · ·Fording River operations, the Greenhill operations, 21· · · ·Line Creek operations, and Elkview operations. 22· · · · · · Further, there are four major new proposed coal 23· · · ·mines under review, which is the Fording River 24· · · ·operations, also known as "the Castle expansion"; Crown 25· · · ·Mountain Coal Mine; Michel Creek Coking Coal Mine; and 26· · · ·Bingay Coal Mine. ·1· · · · Much of our evidence involves sharing with the ·2· ·Panel what we have learned from working with the BC ·3· ·Government and mining companies on assessing and ·4· ·managing the effects of coal mining.· We hope that ·5· ·insights we can share based on our experience will be ·6· ·helpful to the Panel. ·7· · · · Second, I will also address the historic and ·8· ·current Ktunaxa use and occupation of the Grassy ·9· ·Mountain Project area.· I do so in context of 10· ·recognizing and respecting that this project is located 11· ·in Treaty 7 area, and Treaty 7 nations have rights that 12· ·also need to be recognized and respected. 13· · · · The KNC does not at this time take any position on 14· ·whether this project should be approved.· We are 15· ·negotiating with Benga to develop a project agreement. 16· ·Discussions are positive, good faith, and we are 17· ·optimistic that we can conclude an agreement this year. 18· ·However, the conclusions and recommendations this Panel 19· ·will make in its report are still important to us. I 20· ·say this because it is the Crown's duty to consult with 21· ·the Ktunaxa to understand and address any impacts to 22· ·our rights and interests.· This is done in part through 23· ·this Panel's hearing process and report and the terms 24· ·and conditions Alberta and Canada will include in the 25· ·permits and licences that are issued for the project. 26· · · · We, therefore, ask that the Panel carefully ·1· ·consider our evidence and ensure that the Ktunaxa ·2· ·rights and interests are addressed in your report. ·3· · · · To my second point, I will now provide some brief ·4· ·comments regarding Ktunaxa use and occupancy evidence, ·5· ·followed by Dr. Candler, who can speak to the report he ·6· ·prepared, that is, which is Appendix 1 to our written ·7· ·submissions. ·8· · · · I will not cover this verbatim, but I will provide ·9· ·an overview.· To start off with, the location of the 10· ·proposed coal mine is in an area we know as (OTHER 11· ·LANGUAGE SPOKEN), translated to "raven's land".· The 12· ·coal itself is what we call (OTHER LANGUAGE SPOKEN), 13· ·raven's rock.· The area of (OTHER LANGUAGE SPOKEN) is 14· ·on both sides of BC-Alberta boundary, including the Elk 15· ·Valley in southeast British Columbia.· There is a long 16· ·history of Ktunaxa use and occupation of this area, 17· ·including the Crowsnest Pass area where the project is 18· ·located. 19· · · · We have many place names in (OTHER LANGUAGE 20· ·SPOKEN).· We know the Crowsnest Pass and, in more 21· ·particular, Crowsnest Lake as (OTHER LANGUAGE SPOKEN). 22· ·Crowsnest Mountain is known to us as (OTHER LANGUAGE 23· ·SPOKEN), translated to English as "raven's house". 24· · · · Historically, the Ktunaxa ranged across 25· ·Crowsnest Pass to hunt and trade in the eastern 26· ·foothills of the Rockies.· We were proficient buffalo ·1· ·hunters, returning every season to hunt buffalo herds. ·2· ·It was a way of life for us. ·3· · · · We are currently re-establishing our connection to ·4· ·all parts of our territory, including (OTHER LANGUAGE ·5· ·SPOKEN).· Things like culture camps that include youth, ·6· ·adults, and elders.· Some of the activities include ·7· ·storytelling, hunting, fishing, hide tanning, plant ·8· ·identification, and visiting archaeological sites ·9· ·and/or cultural land forests. 10· · · · Also, we support our Ktunaxa students in their 11· ·pursuit of postsecondary education with respect to 12· ·historical research and environmental sciences.· And we 13· ·employ the Ktunaxa people to do environmental 14· ·monitoring of the lands and waters. 15· · · · All areas of our -- of our territory are important 16· ·to us, including the eastern portion of the Rocky 17· ·Mountains in the province of Alberta.· Our oral history 18· ·is told through our version of creation, the Ktunaxa 19· ·creation story, which tells us how things came to be 20· ·and how we behaved towards each other and our 21· ·environment.· It's about who we are, our connection to 22· ·the land, and it provides us with a sense of meaning, 23· ·purpose, and place in this world. 24· · · · Our covenant with the Creator is to be stewards of 25· ·the land, including areas in present-day Alberta. 26· ·Revitalizing our connections to our homelands in this ·1· · · ·area is important to us. ·2· · · · · · So in my closing, we do endeavour to work with ·3· · · ·others based on mutual respect.· We work with other ·4· · · ·governments and industry in a professional manner. ·5· · · · · · I'd like to say thank you for listening to my ·6· · · ·opening remarks, and now Dr. Candler will now address ·7· · · ·the report he prepared. ·8· ·Q· ·DR. CANDLER:· · · · · ·Thank you, Ray. ·9· · · · · · Can I just do a check to make sure that my audio 10· · · ·is working and video is visible for folks? 11· · · ·THE CHAIR:· · · · · · · ·I can hear and see you, 12· · · ·Mr. Candler. 13· ·A· ·DR. CANDLER:· · · · · ·Excellent.· Thank you. 14· · · · · · First of all, before I begin, I'd like to -- to 15· · · ·thank the Chair and -- and the Panel for the 16· · · ·opportunity to be present today.· I'd also like to 17· · · ·thank the Ktunaxa Nation Council and all of the Ktunaxa 18· · · ·citizens and knowledge holders who are part of this 19· · · ·work and have contributed to the report and work that 20· · · ·we'll be talking about for the next few minutes. 21· · · · · · So I think on the screen the Panel can see the -- 22· · · ·the report dated January 2019, technical memo.· This is 23· · · ·on -- 24· ·Q· ·MR. HOWARD:· · · · · · Craig -- 25· ·A· ·Yeah? 26· ·Q· ·-- that technical report is not yet displayed on the ·1· · · ·screen.· Do you have a PDF page reference that you'd -- ·2· ·A· ·Oh. ·3· ·Q· ·-- like the Zoom manager to go to? ·4· ·A· ·Pardon me.· Yes.· I believe it's PDF· page 10.· Thank ·5· · · ·you.· Great. ·6· · · · · · And as -- as I talk today, I'll just be ·7· · · ·highlighting some of the -- the high points of this -- ·8· · · ·this report.· It's available to the Panel and was -- ·9· · · ·was completed in -- in January 2019. 10· · · · · · I think the starting place for this, and as you 11· · · ·heard in the opening comments of KNC and -- and from 12· · · ·Ray Warden, the Ktunaxa Nation have generations of 13· · · ·experience with coal mining and the effects of coal 14· · · ·mining and, in the last number of decades, also with 15· · · ·the kinds of things that can be done to reduce the 16· · · ·negative effects of coal mines. 17· · · · · · Based on the -- the work that I was able to -- to 18· · · ·complete with Ktunaxa knowledge holders -- and that 19· · · ·included all historical work, place-based mapping, 20· · · ·limited archival work, it's clear that Ktunaxa citizens 21· · · ·rely on the project area for the preferred practices 22· · · ·of -- of a range of rights and interests that rely on 23· · · ·particular, preferred, and critical places, as well as 24· · · ·species and practices. 25· · · · · · Based on practitioner guidance from the -- the 26· · · ·federal levels, the current use of lands and resources ·1· ·by Indigenous peoples and doing an assessment on them, ·2· ·it really needs to focus not just on places, but also ·3· ·on species, or resources, and practices upon which ·4· ·Indigenous use relies and what provides the foundation ·5· ·for the practice of rights and interests in the area. ·6· · · · So practice of Ktunaxa rights in the project area ·7· ·is ongoing and current and despite serious impacts from ·8· ·past coal mining, road development, extirpation of ·9· ·bison.· And historic and ongoing Canadian colonial 10· ·policies, including those associated with national 11· ·parks and protected areas, Ktunaxa practice in the area 12· ·remains critically important to Ktunaxa citizens today 13· ·and future Ktunaxa generations. 14· · · · At the end of my presentation, I'm going to come 15· ·back to six primary project impacts that are identified 16· ·in my report.· But first, I'll say a little bit about 17· ·the -- the ethnographic and oral historical context, 18· ·including Ktunaxa use in seasonal ground.· This is 19· ·found on, I believe, PDF· pages 16 through 21 of my 20· ·report. 21· · · · So if we -- even the very earliest recordings by 22· ·European explorers, Hudson Bay Company employees talk 23· ·about the presence of Ktunaxa people and the active 24· ·engagement of Ktunaxa people in the project area 25· ·extending -- including areas of BC, but also areas of 26· ·what are now -- what's now considered Alberta.· Some of ·1· ·the -- the earliest records of -- of that, European ·2· ·records, are recorded by -- by Fidler and date from the ·3· ·late 1700s and clearly place Ktunaxa citizens and ·4· ·Ktunaxa governance as -- as one of the key players in ·5· ·this area. ·6· · · · So current and historic Ktunaxa use of the ·7· ·Crowsnest Pass and project area, as well as oral ·8· ·historical information predating 1846, provides insight ·9· ·into the importance and the continuity of Ktunaxa use 10· ·and rights in the project area, including in the area 11· ·of Blairmore.· Oral history and archival records 12· ·indicate that the Crowsnest Pass area was traditionally 13· ·used and occupied regularly by the Ktunaxa Nation prior 14· ·to and after 1846, and prior to and after the signing 15· ·of Treaty Number 7 in 1877. 16· · · · While impacts to Ktunaxa rights through land 17· ·privatization, coal and industrial development, 18· ·extirpation of the bison, government policy had been 19· ·widespread, Ktunaxa elders and land users continue to 20· ·use and value the LSA and the surrounding area. 21· · · · Ktunaxa practice in the area was challenged by a 22· ·number of dynamics in the 18th and 19th century, but 23· ·was maintained and is ongoing.· Historic and modern 24· ·Ktunaxa treaties and agreements with neighbouring 25· ·nations provide the context for current sharing of 26· ·rights and use in the project area. ·1· · · · The report goes on to talk about particular kinds ·2· ·of oral histories in the project area and particular ·3· ·kinds of uses.· And I should note that current use of ·4· ·lands and resources as defined in practitioner guidance ·5· ·includes the commemorative use of landscapes, the use ·6· ·of places in order to recount oral histories and ·7· ·transmit knowledge.· So these -- some of these oral ·8· ·histories may reflect back to a time of creation, ·9· ·others to a time in the 17- and 1800s when smallpox was 10· ·running through the area, others more recently that are 11· ·dealing with bison harvesting and hunting. 12· · · · But all of these things, while they're in the 13· ·past, they are current in the sense that the landscapes 14· ·and the places of the project area are critical to the 15· ·Ktunaxa practice of knowledge transmission and the 16· ·passing on of knowledge in the area, including Ktunaxa 17· ·historical and oral historical knowledge. 18· · · · A central part of -- of the information in the 19· ·report looks at the Ktunaxa practice of -- of 20· ·harvesting in the seasonal round, and, of course, this 21· ·area was -- was particularly critical for bison as well 22· ·as for other species and -- and resources in the area. 23· · · · I think it's important for the Panel to note that 24· ·the project area is -- is, in many ways, unique within 25· ·Ktunaxa Amakis.· It's one of the only places within 26· ·Ktunaxa Amakis where Ktunaxa practice is not ·1· ·constrained by national parks, and, of course, it's -- ·2· ·it's one of the key places in Ktunaxa Amakis where if ·3· ·bison restoration occurs, it -- it's one of the key ·4· ·places where Ktunaxa citizens would be able to harvest ·5· ·bison in the future after that restoration occurs. ·6· · · · So I'm going to just identify briefly six primary ·7· ·project impacts.· This is on, I believe, PDF· page 13. ·8· ·If we could go there.· How about PDF· page 12?· There ·9· ·we go.· Thank you. 10· · · · So the first of these is impacts on cultural and 11· ·spiritual values, and this includes sense of place and 12· ·the ability to pass on specific knowledge, so oral 13· ·histories related to sacred landforms, Ktunaxa oral 14· ·history in the area, and place-specific knowledge that 15· ·relies on the integrity of the viewscape and the 16· ·sensory environment, especially surrounding places like 17· ·Crowsnest Mountain and Crowsnest Pass, specifically 18· ·Crowsnest Lake, as well as Turtle Mountain and Frank, 19· ·and other important areas within and beyond Ktunaxa 20· ·LSA. 21· · · · Secondly, impacts on environmental and 22· ·culturally -- cultural and spiritual values connected 23· ·to water and the integrity of water, and that includes 24· ·the headwaters of the Crowsnest River and the water 25· ·that flows downstream from those areas. 26· · · · Thirdly, impacts on use of trails for travel and ·1· ·access to cultural landscapes, and I would include in ·2· ·that trails that might be travelled these days on -- on ·3· ·vehicles.· So that includes Ktunaxa travel routes ·4· ·connecting lands west of the Rockies with Alberta, and ·5· ·including routes generally followed by the -- the ·6· ·highway corridor, Crowsnest highway corridor, as well ·7· ·as routes that are -- are off of that corridor. ·8· · · · Impacts on camping areas and subsistence harvest ·9· ·areas, hunting, fishing, plant gathering, including in 10· ·the area of Grassy Mountain, as well as the viability 11· ·of the project area to continue to support Ktunaxa 12· ·practice of rights and interests.· As -- as I mentioned 13· ·earlier, this is particularly in an area where Ktunaxa 14· ·citizens can practice hunting on both sides of the 15· ·Rockies without interruption and interference from 16· ·parks and protected area restrictions. 17· · · · Last two impacts on ecological values, especially 18· ·related to current habitat that may be currently vacant 19· ·of plains bison, but it's a part of the province of 20· ·Alberta that will be critical to future generations of 21· ·Ktunaxa citizens should bison be reintroduced into the 22· ·area.· As mentioned in the evidence, this is already 23· ·happening in national park areas, and this -- the area 24· ·of the project is expected to be one of the critical 25· ·places for re-establishment. 26· · · · I'd also raise grizzly bear and other culturally ·1· ·important species and habitats that are -- are in the ·2· ·area of the project. ·3· · · · Finally, the -- the impacts of the -- or potential ·4· ·impacts of the project on Ktunaxa governance and ·5· ·stewardship, these are -- are certainly governance ·6· ·practices fall within the definition of the current use ·7· ·of lands resources.· And the Ktunaxa citizens and the ·8· ·KNC takes very seriously its stewardship obligations to ·9· ·lands, waters, and all living things in the area. 10· · · · Now, I'd just make some concluding comments. I 11· ·think we'll come to it later in the presentation.· In 12· ·terms of the assessment of project impacts, the 13· ·assessment that -- preliminary assessment, anyways, 14· ·that is provided in the -- the -- the document that 15· ·we're looking at, I think we can maybe go to -- should 16· ·be PDF· page 22, if I'm doing my math right.· 21 -- 17· ·pardon me -- is where the section begins.· There we go. 18· ·Ktunaxa rights, current use, and assessing project 19· ·impacts.· This section runs through some of the key 20· ·values that have already been mentioned, including the 21· ·disturbance of important Ktunaxa cultural and spiritual 22· ·sites; potential for large-scale slope failure; impacts 23· ·on bison habitat, grizzly bear; potential -- 24· ·anticipated project impacts on water from the coal 25· ·mining; project impacts on subsistence use, so that's 26· ·fishing, hunting, and gathering; transportation values; ·1· ·and other values. ·2· · · · If we go to PDF· 28, there's a summary of ·3· ·anticipated project impacts on Ktunaxa use, rights, and ·4· ·interests in the LSA. And this, really, is -- is -- is ·5· ·based on a context where, from the Ktunaxa perspective, ·6· ·we are already beyond a point of natural variability in ·7· ·the area.· Ktunaxa ability to use and practice rights ·8· ·in the area as a result of past impacts is already ·9· ·beyond a significant level, and so additional adverse 10· ·effects from the project are also significant by 11· ·definition, because they are in addition to and -- and 12· ·furthering the trajectory that has already resulted in 13· ·significant impacts in the area. 14· · · · So that's at the project-effect level.· Those 15· ·residual adverse project effects which are significant 16· ·from the perspective of Ktunaxa would require 17· ·substantial mitigation efforts in order to reduce to 18· ·a -- a nonsignificant level and, if they continue to be 19· ·adverse and residual, would absolutely contribute to 20· ·the overall cumulative effect, cumulative burden of 21· ·industrial development and change in the area.· And 22· ·that would be a direct effect on both Ktunaxa citizens 23· ·and on the ability of the Ktunaxa Nation to provide 24· ·stewardship and protection for the area. 25· · · · I will conclude there at the end of our 26· ·presentation.· I'll hopefully be able to speak a little ·1· · · ·bit more along with Nicole Kapell to the issue of ·2· · · ·cumulative effects and potential mitigations.· Thank ·3· · · ·you. ·4· · · · · · And, Tim, if you can just -- who will be going ·5· · · ·next on our panel? ·6· · · ·MR. HOWARD:· · · · · · · It's Mr. Sinclair. ·7· · · ·DR. CANDLER:· · · · · · ·Mr. Sinclair, thank you. ·8· ·A· ·MR. SINCLAIR:· · · · · Good afternoon.· My name is ·9· · · ·Jesse Sinclair.· Thank you for the opportunity to 10· · · ·provide evidence this afternoon. 11· · · · · · Would the Zoom manager be able to go back to the 12· · · ·KNC written submission, PDF· page 5, please?· Thank 13· · · ·you. 14· · · · · · And I'll be covering some topics related to water 15· · · ·quality this afternoon and then pass it over to my 16· · · ·colleague, Christopher Burns, who will speak on fish 17· · · ·and -- and fish habitat. 18· · · · · · So based on a review of the environmental impact 19· · · ·assessment, we've identified concerns with respect to 20· · · ·water quality and the potential for effects on aquatic 21· · · ·life or aquatic-dependent wildlife.· Specifically these 22· · · ·are in a few topic areas, including the collection and 23· · · ·interpretation of baseline data, which includes a scope 24· · · ·of parameters that have been analyzed, as well as the 25· · · ·spatial and temporal extent of -- of sampling to 26· · · ·support baseline characterization. ·1· · · · We also have identified concerns with the plan ·2· ·mitigations, and specifically the reliance on the ·3· ·saturated backfill zones, or SBZs, which I'll refer to ·4· ·that acronym throughout the rest of the presentation. ·5· · · · The characterization of residual effects and lack ·6· ·of clear and specific triggers for management action ·7· ·within an adaptive management framework to ensure that ·8· ·these -- this potential for effects is -- the ·9· ·minimized. 10· · · · So I'm going to speak briefly on these last three 11· ·topic areas for this presentation. 12· · · · So regarding the planned mitigations, Benga, the 13· ·proponent, is relying on SBZs for treating selenium and 14· ·nitrate, and we have concerns that those plan 15· ·mitigations have not been informed by site-specific 16· ·field trials.· Consequently, the impact assessment 17· ·lacks the sufficient information on SBZ specifics, 18· ·including clarity on required water-residence times, 19· ·any need for biological seeding, carbon dosing, and 20· ·distribution of particle sizes within the -- the 21· ·backfill zone. 22· · · · This is a concern as our experience with work that 23· ·Teck has done in the Elk Valley has really shown the 24· ·importance of these field-scale trials, and they 25· ·provide very important site-specific information in the 26· ·operation and management of their saturated rock fills. ·1· ·And this includes consideration of -- of pit water and ·2· ·influent water chemistry, specifically to parameters ·3· ·other than selenium and -- and nitrate. ·4· · · · So, therefore, from my perspective, there is ·5· ·considerable uncertainties regarding the longevity and ·6· ·capacity of the SBZs in the proposed or planned ·7· ·mitigations, and this includes the ability of the ·8· ·proponent to target and alter various treatment zones ·9· ·within the SBZ to optimize capacity.· There's also 10· ·concerns with the potential for reversibility, where, 11· ·under certain environmental conditions, the potential 12· ·for selenium release has not been fully evaluated.· And 13· ·also, with respect to in-pit selenium speciation to 14· ·organoselenium species that have extremely high 15· ·bioaccumulation potentials relative to selenate and 16· ·relative to selenite.· So from my perspective, the 17· ·risks associated with the saturated backfill zones, or 18· ·SBZs, isn't sufficiently characterized. 19· · · · And, again, this is -- this is quite important as 20· ·the -- the EIA has concluded and states that: 21· ·(as read) 22· · · · Highly effective selenium attenuation will be 23· · · · required for the Grassy Mountain Project in 24· · · · order to prevent water-quality effects in the 25· · · · local creeks. 26· ·The contingency plans that the proponent have proposed ·1· ·include active water treatment, similar to what's been ·2· ·done in the Elk Valley.· The EIA states that they could ·3· ·have active water treatment online within three years ·4· ·from planning to full operation. ·5· · · · From my perspective, and based on our experience, ·6· ·this is an overly optimistic timeline.· Current ·7· ·estimates for getting these plants online in the Elk ·8· ·Valley are up to around five years from planning to ·9· ·commissioning, with an additional four months of 10· ·commissioning and up to eight months or so of ramping 11· ·up to have full operation.· So it's a total of about 12· ·six years. 13· · · · So from my perspective, again, the -- the 14· ·contingency plans that Benga is proposing needs to 15· ·include these adaptive management measures that ensure 16· ·that the siting, construction, commissioning, and 17· ·optimization of the active water-treatment facilities 18· ·is done in an adequate time frame so that the 19· ·realization of any water-quality effects in the 20· ·environment are minimized or -- or removed. 21· · · · Regarding adaptive management, to build on that a 22· ·little bit , to date, the adaptive management plan only 23· ·provides example triggers for water quality.· States 24· ·that specific triggers will be developed in a final 25· ·plan.· We argue that it's critically important that the 26· ·early-warning triggers be developed at this stage of ·1· ·the process and that these triggers are sensitive and ·2· ·specific with feasible management actions and timelines ·3· ·for implementation. ·4· · · · These triggers need to be sufficiently sensitive ·5· ·to allow time for investigations of cause, as well as ·6· ·for investigation and implementation of any mitigations ·7· ·that are needed to address the concerns arising within ·8· ·the adaptive management framework. ·9· · · · So I have a few examples here that I'll speak to. 10· ·The first is with respect to a development of a 11· ·sulphate site-specific water-quality objective.· Benga 12· ·agrees with the development -- development of this 13· ·water-quality objective.· But the problem from my 14· ·perspective is that they are not willing to develop 15· ·this plan until the date -- a later date despite that 16· ·predicted sulphate concentrations are exceeding the 17· ·water-quality guidelines. 18· · · · So if this derivation process determines that 19· ·mitigations will be needed, it's unclear to me whether 20· ·there'll be sufficient time to plan and implement any 21· ·mitigations prior to realization of effects in the 22· ·aquatic environment. 23· · · · Another example here is just with respect to 24· ·nickel.· So based on experience in the Elk Valley, 25· ·concentrations of nickel are having effects within the 26· ·receiving environment and localized areas, and these ·1· ·effects are being observed at concentrations roughly 30 ·2· ·times below the current water-quality guidelines, ·3· ·pointing to the need for site-specific water-quality ·4· ·objective derivation. ·5· · · · So the -- the underlying mechanisms for this ·6· ·toxicity haven't really been flushed out yet.· Teck is ·7· ·working at the forefront of some of this work.· But ·8· ·based on the predicted concentrations downstream of the ·9· ·proposed Grassy Mountain Mine, it's -- it's my 10· ·understanding that concentrations could exceed 11· ·benchmarks that Teck is currently working with.· So, 12· ·therefore, mitigations for -- for nickel might -- might 13· ·need to be explored. 14· · · · And then the final example, just around calcite 15· ·management.· So we had asked or recommended that a 16· ·calcite management plan be developed for the project. 17· ·To date, what we have seen so far is a monitoring plan. 18· ·And based on our experience in the Elk Valley, I think 19· ·the proponent needs to take these calcite concerns very 20· ·seriously.· And what we found is that calcite 21· ·prevention is something that's feasible and doable. 22· ·Calcite remediation, on the other hand, is proving to 23· ·be more difficult.· And in some cases, there could be 24· ·habitat destroyed and the need for restoration in order 25· ·to resolve some of these issues, so it reinforces the 26· ·need for sensitive and specific triggers to ensure that ·1· · · ·any problems with respect to calcite are caught early ·2· · · ·on in the process. ·3· · · · · · So from a water-quality perspective, and in ·4· · · ·summary, our -- we believe the residual ·5· · · ·characterization -- residual effects characterization ·6· · · ·is not comprehensive and that adaptive management ·7· · · ·framework for mitigating effects does not include clear ·8· · · ·and specific triggers for management action and that ·9· · · ·those triggers need to lead to responses with -- with 10· · · ·very specific timelines. 11· · · · · · So thank you, Panel and Chair, and I will pass to 12· · · ·Christopher Burns for discussion on the fish and fish 13· · · ·habitat. 14· ·A· ·MR. BURNS:· · · · · · ·Thanks, Jesse. 15· · · · · · You know, Jesse has given, and we've given, a good 16· · · ·synopsis of KNC's comments and concerns related to mine 17· · · ·design, you know, predicted water quality, water 18· · · ·treatment, and water management, and you've, kind of, 19· · · ·highlighted some -- the importance of enacting kind of 20· · · ·sound, proactive mitigation measures based upon, you 21· · · ·know, our current state of knowledge and science which 22· · · ·will inform more like an adaptive management approach 23· · · ·if the mine were to proceed. 24· · · · · · So -- oh, right.· Assume we've got a type of 25· · · ·synopsis related to fish and aquatic habitat.· And, you 26· · · ·know, this synopsis or perspective is really based upon ·1· ·our, you know, direct experience working in the ·2· ·Elk River Valley as well as kind of drawing upon our, ·3· ·you know, professional experience working with other ·4· ·mining and environmental assessments and aquatic ·5· ·effects monitoring programs throughout BC and other ·6· ·parts of Canada.· So that's where we're coming from, ·7· ·from some of these comments and concerns that we're ·8· ·highlighting here today. ·9· · · · So Ktunaxa's submission through the EA review 10· ·process is -- and further provided to the -- to the 11· ·Panel themselves, identified several, you know, 12· ·deficiencies related to fisheries and aquatic baseline 13· ·data, the instream flow assessment, the resulting 14· ·aquatic ecology effects assessment, and the fisheries 15· ·offsetting plans. 16· · · · So, you know, rather than discuss all the specific 17· ·comments themselves that we previously submitted to the 18· ·Panel, kind of grouped our discussion here today just 19· ·based upon really three essential themes; and the 20· ·themes that I'll kind of talk to -- about today are -- 21· ·the first one would be fish and aquatic baseline data 22· ·concerns; the second one is related to water-management 23· ·concerns; and the third and final one here that I'll 24· ·talk about is the fisheries offsetting and some of the 25· ·concerns related to that specific plan itself. 26· · · · So for the first, you know, essential theme that I ·1· ·had mentioned, fish and aquatic baseline data, you ·2· ·know, we identify a number of data issues pertaining ·3· ·to, one, the study, design, and methodology and/or ·4· ·spatial extent to oral timing, and the frequency of the ·5· ·timing itself.· And, you know, again, this is based ·6· ·upon our experience working with environmental ·7· ·assessments and environmental effects monitoring ·8· ·programs in the Elk River Valley and impacts that we ·9· ·have seen because of that and -- and other projects 10· ·that we've been involved in throughout Canada and BC. 11· · · · I did say that I wouldn't talk about all the 12· ·specifics, but I'll give some examples that are related 13· ·directly to this -- this essential theme that I'm 14· ·talking about here, so ... 15· · · · You know, there's a lack of clearly defined 16· ·nearfield, midfield, farfield exposure sites and 17· ·reference sites which are essentially really critical 18· ·to the study objectives of the environmental effects 19· ·monitoring program. 20· · · · There wasn't -- didn't seem to be a rationale for 21· ·their selection, which is, again, important to the 22· ·study design.· There's a lack of appropriate fish 23· ·species' selections, so multiple -- different species 24· ·were selected at a particular site, and then forming a 25· ·composite sample, which is generally not standard 26· ·practice because different species can accumulate ·1· ·metals in varying different rates. ·2· · · · Public sampling was -- it was recognized that ·3· ·there was kind of lack of importance in collecting all ·4· ·the biological information from lease-sampled fish to ·5· ·kind of further characterize and support the ·6· ·development of an environmental effects monitoring ·7· ·program, which can have an impact on the program's ·8· ·ability to track change over time, if change does ·9· ·occur. 10· · · · And, you know, there was -- appeared for me, from 11· ·the review of the information, there was inadequate 12· ·fish and aquatic step -- and specifically, periphyton 13· ·and macroinvertebrates in the Crowsnest River to 14· ·monitor potential project-related effects in the future 15· ·if that were to happen.· Crowsnest River isn't too far 16· ·downstream in the project area. 17· · · · And also, some of the fish tissue, periphyton 18· ·tissue, and macroinvertebrates sites were not 19· ·colocated, and this does have an impact in terms of if 20· ·one were to develop a selenium bioaccumulation model 21· ·and understanding the transfer of selenium and other 22· ·metals up the food chain through the -- through 23· ·trophic -- different trophic levels. 24· · · · And there was limited temporal sampling, which was 25· ·largely restricted to one year for the baseline data. 26· ·So, you know, in terms of what does this all mean, you ·1· ·know, it has a direct and important link to developing ·2· ·an effective aquatic effects monitoring program and ·3· ·developing a selenium bioaccumulation model if one were ·4· ·to proceed with one. ·5· · · · In an AMP, it serves -- it's an important means ·6· ·in which -- you know, in which changes in the aquatic ·7· ·environment are detected, and it more importantly ·8· ·serves as early warning signals so that effective and ·9· ·quick mitigation measures are enacted.· And, you know, 10· ·these mitigation measures should -- could mean, you 11· ·know, water treatment or changes in the 12· ·water-management plan, all these sorts of things.· So 13· ·they ultimately provide a way to kind of reverse any 14· ·degradation to the aquatic environment. 15· · · · And the proponent has proposed an environmental 16· ·aquatic effects monitoring program in the EIA and feel 17· ·that this aquatic effects monitoring program should be 18· ·developed in consultation with Ktunaxa, and it must 19· ·include, as Jesse talked about, kind of very clear 20· ·adaptive-management components.· And the three things 21· ·that I think of in terms of adaptive-management program 22· ·is, you know, first of all, having the triggers, 23· ·including early-warning triggers, triggers for 24· ·management action; and it must also include a 25· ·description of the management actions that will be 26· ·taken if the trigger is exceeded; and the third one ·1· ·would be, you know, the means by which one is going to ·2· ·monitor the effectiveness of these mitigation measures, ·3· ·so something that's quantifiable.· That if you reach a ·4· ·certain trigger, then, you know, actions will be -- ·5· ·occur, essentially, which will address any key ·6· ·uncertainties or -- or evaluating any of those ·7· ·uncertainties. ·8· · · · So, you know, and at the end of the day, the issue ·9· ·with gathered, used, and approved aquatic effects 10· ·monitoring program with Ktunaxa employed following a 11· ·BACI design, so before-or-after-control impact 12· ·monitoring design, and this does include incorporating 13· ·a couple of years of baseline data so then one can 14· ·then, you know, reliably use this data to detect 15· ·changes over time. I 16· · · · The -- so that was the first theme that I 17· ·mentioned there.· I'll go on next to the -- the -- the 18· ·second central theme, which is related to 19· ·water-management concerns, and Benga, the proponent, 20· ·has implemented an instream flow assessment which 21· ·ultimately informs, you know, their analysis in the 22· ·aquatic ecology and effects assessment.· And the 23· ·instream flow assessment, you know, did predict 24· ·reduction in peak discharges, potential decrease in 25· ·flow in Gold Creek with monthly flow rejections in May 26· ·and June, and they also -- the assessment also ·1· ·concluded that to be a small predicted decrease in ·2· ·sediment mobility, and that this will not cause ·3· ·immeasurable change in spawning habitat in Gold Creek. ·4· · · · And, similarly, they conducted an instream flow ·5· ·assessment on Blairmore Creek and predicted a little ·6· ·bit opposite effect with an increase in flow in ·7· ·Blairmore Creek, in the months being greatest in May ·8· ·and June. ·9· · · · You know, our comment and review of that is that, 10· ·you know, all of these assessments are based upon 11· ·models, which is -- you know, they are based at the 12· ·foundation of our understanding and functioning of 13· ·aquatic unit systems, but it's also recognized, as all 14· ·models are, that they are simplifications of the 15· ·natural environment, essentially, and there's always 16· ·some level of uncertainty that needs to be resolved and 17· ·accounted for. 18· · · · So similar to our first theme, the proponent has 19· ·developed an AMP and EA that includes, you know, 20· ·components specific to water management, such as 21· ·fluvial geomorphology, fish bioenergetics, and 22· ·cutthroat population abundance.· And I feel that 23· ·that -- you know, the AMP, again, should be developed 24· ·in consultation with KNC and the water-management plan 25· ·as well, because they serve as a means to detect 26· ·changes in the aquatic environment, and more ·1· ·importantly serve as early-warning signals so that ·2· ·effective and quick manage -- mitigation measures can ·3· ·be enacted. ·4· · · · And the plan, again, must include adaptive ·5· ·management components, such as triggers for the act -- ·6· ·triggers for action; description of the actions; if ·7· ·they're triggered, you know, what will be done if we ·8· ·exceed a particular threshold; and then, thirdly, you ·9· ·know, how will those measures be evaluated at the end 10· ·of the day so that informed management decisions can be 11· ·made going forward. 12· · · · And lastly, our third essential theme related to 13· ·fish and aquatics is related to the fisheries 14· ·offsetting. 15· · · · So the -- the project itself will result in a loss 16· ·of fish habitat which is proposed to be offset through 17· ·the implementation of a fisheries offsetting plan. 18· ·And, you know, there are several options that are 19· ·proposed, but here today I'll just focus on one of 20· ·those options, which is the creation of overwintering 21· ·pool habitat. 22· · · · And so we talked about overwintering pool habitat. 23· ·You know, there's -- there's certain conditions that 24· ·fish select for -- certain types of habitats they 25· ·select to overwinter in, and one of those is pooled 26· ·habitats.· Overwintering pools are known to be kind of ·1· ·dynamic; and, you know, how a fish determines what type ·2· ·of habit -- you know, pool habitat it's going to select ·3· ·is based upon a number of different factors, such as ·4· ·ease of access; depth of the habitat itself; how ice is ·5· ·formed in that specific location or in that specific ·6· ·reach; water velocity throughout the winter; dissolved ·7· ·oxygen; as well as groundwater influence. ·8· · · · And, you know, there's still some uncertainties as ·9· ·to what really makes good overwintering habitat, and 10· ·this can vary by a stream or reach in Blair [sic] or 11· ·Gold Creeks. 12· · · · And so there is a risk that despite maybe some 13· ·well-intentioned designs, that creating pools may not 14· ·necessarily meet their habitat or life history 15· ·requirements and act as a sink and actually could 16· ·result in increased overwintering mortality by trapping 17· ·certain fish in the wrong type of environment. 18· · · · So if -- you know, I think this highlights the 19· ·need for effective, if not offsetting effect -- 20· ·monitoring effectiveness, which has been proposed. 21· ·And, again, these plans should be developed effective, 22· ·as monitoring should be developed in consultation with 23· ·Ktunaxa Nation, and follow the same sort of theme in 24· ·terms of adaptive management components that I've 25· ·previously talked about for the previous two themes of, 26· ·you know, having triggers and a description of what ·1· · · ·will be done if those -- if those things -- if those ·2· · · ·actions are triggered and how those specifically will ·3· · · ·be evaluated, and that's quantifiable over time. ·4· · · · · · So in summary, that concludes our comments related ·5· · · ·to fish and aquatics, and I'll pass it along to the ·6· · · ·next colleague of mine. ·7· ·A· ·MS. MACHMER:· · · · · ·Can everyone hear me. ·8· · · ·THE CHAIR:· · · · · · · ·We can. ·9· ·A· ·Good afternoon, everyone.· My name is Marlene Machmer. 10· · · ·Thank you for the opportunity to provide evidence to 11· · · ·this Panel on behalf of the Ktunaxa. 12· · · · · · The KNC have documented a number of concerns 13· · · ·within the environmental impact statement and in 14· · · ·particular with respect to the terrestrial assessment. 15· · · ·I will be speaking on the KNC written submission 16· · · ·Reference 564.· I think it's the top of page 7.· The 17· · · ·section is entitled "Wildlife, Vegetation, Reclamation, 18· · · ·Soils, and Terrain". 19· · · · · · I have distilled KNC's comments into five major 20· · · ·themes, including problems with the assessment 21· · · ·approach; lack of appropriate baseline surveys to 22· · · ·inform the assessment; overly optimistic projections of 23· · · ·reclamation success without supporting evidence; 24· · · ·failure to consider the influence of advancing climate 25· · · ·change on reclamation success; and adequacy of 26· · · ·application information to quantify residual project ·1· ·effects.· I will speak to each one of these themes, ·2· ·starting with problems with the assessment approach. ·3· · · · Terrestrial VCs were not representative of the ·4· ·full suite of wildlife guilds confirmed in the LSA and ·5· ·expected to be impacted by the project.· The guilds ·6· ·omitted in the assessment included aquatic furbearers; ·7· ·wetland riparian birds; grassland birds; cavity-nesting ·8· ·birds dependent on wildlife trees for breeding; ·9· ·reptiles; small mammals; and invertebrates as well. 10· · · · Some omitted guilds, especially the aquatic 11· ·furbearers, grassland, and cavity-nesting birds, as 12· ·well as small mammals were acknowledged to be valued by 13· ·First Nations, and they included several federally 14· ·and/or provincially listed species that were not 15· ·considered. 16· · · · In some cases, wildlife VCs that are not at risk 17· ·were chosen instead of those that are.· For example, 18· ·elk, a grassland species secure in Alberta, was 19· ·selected, while American badger, a grassland species at 20· ·risk in both federal and provincial jurisdictions, was 21· ·not.· Another example, American marten, a secure 22· ·species which makes facultative use of tree cavities 23· ·for denning, was chosen over several species which are 24· ·obligate wildlife tree users and sensitive in Alberta. 25· · · · Where certain wildlife guilds were omitted or 26· ·listed wildlife were not selected as VCs, residual ·1· ·effects were not considered, or they were ·2· ·underestimated respectively, leading to a lack of ·3· ·mitigation addressing the targeted impact guilds or ·4· ·listed species. ·5· · · · On the plant side, listed plants were pooled for ·6· ·the assessment, including federally endangered ·7· ·whitebark and limber pines, and 39 other plant species ·8· ·on federal and/or Alberta provincial tracking lists. ·9· ·All of these were subalpine and montane natural 10· ·subregion plants. 11· · · · Only for whitebark and limber pines were estimated 12· ·number of trees to be removed tabulated.· Approximately 13· ·21,000 trees in total were expected to be impacted. 14· · · · For other sensitive or at-risk plant species, rare 15· ·plant potential was considered.· Rare plants are 16· ·typically confined to suitable micro-sites with very 17· ·narrow habitat requirements for things like terrain, 18· ·elevation, aspect, slope, slope position, et cetera. 19· ·So the modelling of rare plant potential based on broad 20· ·ecosystem habitat characteristics tends to overflate -- 21· ·overinflate potential to occur.· This approach does not 22· ·allow for a fulsome understanding of impacts to plant 23· ·occurrences and populations by species. 24· · · · Pooling all listed plants together under a single 25· ·significance rating does not distinguish those species 26· ·irreversibly impacted from those with more resilient ·1· ·populations that are likely to respond to mitigation. ·2· ·Therefore, this is not a valid approach, and it limits ·3· ·the mitigation proposed with most of the mitigation ·4· ·focused on whitebark pine. ·5· · · · Point Number 2, with regards to concerns raised by ·6· ·the KNC, is the lack of appropriate baseline surveys to ·7· ·inform the assessment.· No systematic baseline surveys ·8· ·were completed for some wildlife guilds, including ·9· ·aquatic furbearers, wetland riparian birds, reptiles, 10· ·small mammals, invertebrates, and cavity-nesting birds, 11· ·such as woodpeckers, which are not reliably detected 12· ·with songbird point counts. 13· · · · The East Slope of the Rockies is a major migration 14· ·route for raptors, with close to 9,000 individual 15· ·raptors recorded at the Vicki Ridge hawk watch site 16· ·over 140 days in the fall of 2014 to 2017.· These 17· ·sightings comprise 18 raptor species and include many 18· ·federally and provincially at-risk species, such as 19· ·northern goshawk, broad-winged hawk, Swainson's hawk, 20· ·ferruginous hawk, rough-legged hawk, gyrfalcon, 21· ·peregrine, and prairie falcons.· The value of the 22· ·Grassy Mountain area as a key raptor migration corridor 23· ·and potential impacts of this project were not 24· ·considered in the assessment. 25· · · · Point Number 3 that I'd like to discuss is overly 26· ·optimistic predictions of reclamation success without ·1· ·supporting evidence.· The assessment underestimated ·2· ·residual habitat impacts by overestimating post-project ·3· ·habitat quality, quantity, and distribution.· Overly ·4· ·optimistic habitat reclamation success predictions in ·5· ·grasslands, wetlands, old-growth forests, for forestry ·6· ·and rangeland resources, as well as for species, ·7· ·community, and landscape diversity are not ·8· ·substantiated based on past monitoring of reclamation ·9· ·success in other mining projects. 10· · · · In the Elk Valley, for instance, where predicted 11· ·mitigation -- sorry, predicted reclamation success has 12· ·not been realized or kept pace with reclamation 13· ·commitments, reclamation has not been successful with 14· ·respect to native subalpine and montane grasslands, 15· ·with respect to brushlands, treed wetland habitats, or 16· ·mature and old-growth forests.· Nor has there been 17· ·successful reclamation of any forested habitats with 18· ·merchantable tree species realized. 19· · · · Although some habitat reclamation projects show 20· ·initial promise, plant community development typically 21· ·stalls and reaches a disclimax phase rather than 22· ·following the expected successional trajectories for 23· ·those ecosystems. 24· · · · Planting of agronomic grasses has led to 25· ·vegetation regrowth on reclaimed mine sites, but this 26· ·has actually hindered establishment of native plant ·1· ·communities.· Agronomic grasses have also attracted ·2· ·large numbers of grazing ungulates which aggregate on ·3· ·these sites, and then they no longer undertake seasonal ·4· ·movements between summer and winter ranges.· This leads ·5· ·to serious habitat degradation and prevents these early ·6· ·seral habitats from recovering. ·7· · · · In the Elk Valley, although Teck has put ·8· ·considerable resources into plant mitigation measures ·9· ·to improve plant reclamation success, for example, 10· ·collection and propagation of native seeds, cones, and 11· ·other plant parts, or whole plant translocations; and 12· ·growth of nursery stock in greenhouses; propagation and 13· ·outplanting of genetically disease-resistant stock, all 14· ·of the above approaches have yet to demonstrate 15· ·successful reclamation of native grasslands, 16· ·brushlands, treed wetlands, and advanced forest plant 17· ·communities; therefore, there is no empirical basis for 18· ·the high levels of reclamation success and low residual 19· ·impact -- impacts projected for grasslands, treed 20· ·wetlands, mature and old forests, and for timber and 21· ·rangeland resources for the Grassy Mountain Project. 22· · · · The assessment acknowledged that there has been no 23· ·successful reclamation of rare rough-fescue grasslands 24· ·or treed wetlands, but then it went on to predict that 25· ·they would be reclaimed to an equivalent or greater 26· ·level of land capability. ·1· · · · The assessment failed to acknowledge the loss of ·2· ·wildlife habitats' suitability and lower ecosystem ·3· ·structure, composition, and function of reclaimed sites ·4· ·relative to the native ecosystems lost.· This is ·5· ·something that has been consistently documented in ·6· ·conjunction with other mining reclamation efforts, to ·7· ·date, in the Elk Valley. ·8· · · · A much more realistic and precautionary assessment ·9· ·of residual impacts is required based on empirical 10· ·evidence from past monitoring studies rather than 11· ·unsubstantiated reclamation projections.· A robust 12· ·biodiversity conservation, reclamation management, and 13· ·monitoring plan is needed with clear objectives and 14· ·targets for restoring the native ecosystems lost, and a 15· ·rigorous adaptive management component with identified 16· ·triggers for action when the expected reclamation 17· ·trajectories are not being achieved. 18· · · · The plan must include a reclamation monitoring 19· ·framework with details on monitoring timelines, 20· ·frequency, duration, intensity, as well as descriptions 21· ·of monitoring methods focused on indicators appropriate 22· ·to measure progressive reclamation performance. 23· ·Monitoring results must also be compared with those for 24· ·the same indicators in benchmark native ecosystems at 25· ·predefined periods to determine if the plant 26· ·communities are on an expected successional trajectory ·1· ·and to make adjustments if they are not. ·2· · · · If expected successional trajectories and ·3· ·pre-project habitat quantity, quality, and distribution ·4· ·are not achieved during reclamation, then further ·5· ·actions offsetting or compensation must address ·6· ·residual loss of habitat suitability and ecosystem ·7· ·function. ·8· · · · Point Number 4 I'd like to address is failure to ·9· ·consider the influence of monitoring -- sorry, of 10· ·advancing climate change on reclamation success. 11· · · · One of the most concerning aspects of this 12· ·assessment was the complete lack of consideration for 13· ·known impacts of advancing climate change on vegetation 14· ·regeneration and reclamation success due to the higher 15· ·growing season temperatures; more prolonged summer 16· ·drought; more frequent and intense wildfires; higher 17· ·forest insect, disease, and invasive plant incidents; 18· ·wetter, warmer winters with more severe storms; 19· ·flooding; and erosion potential. 20· · · · The KNC collaborated with the BC government on a 21· ·multiyear cumulative effects assessment framework for 22· ·the Elk Valley in which climate change was considered 23· ·to interact with other past, present, and reasonably 24· ·foreseeable developments.· This analysis showed that 25· ·when climate-change projections were included in 26· ·habitat supply modelling, the incremental impacts of ·1· ·climate change dwarfed all other factors in terms of ·2· ·their overall influence on habitat quality, quantity, ·3· ·and distribution across the landscape. ·4· · · · The amount of old forest, for instance, declined ·5· ·dramatically due to the higher levels of disturbance ·6· ·from drought, wildfires, insects, diseases, and severe ·7· ·storms, coupled with the lower levels of successful ·8· ·tree regeneration.· This pattern of lower tree ·9· ·regeneration success is also being realized in a 10· ·forestry context, as documented in dozens of recent 11· ·reviews confirming the low rates of native conifer 12· ·regeneration in the last decade relative to previous 13· ·decades.· This pattern is attributed to harsher growing 14· ·conditions and higher disturbance rates linked to 15· ·advancing climate change. 16· · · · In a mining context where there are many more 17· ·challenges with soil quantity and quality, 18· ·climate-change impacts on revegetation and reclamation 19· ·success are expected to be much more extreme, yet they 20· ·were not considered in this assessment. 21· · · · It is imperative that effects of climate change be 22· ·directly considered on post-project habitat quantity, 23· ·quality, and distribution, and that reclamation 24· ·projections be downgraded accordingly so that the 25· ·inevitable residual habitat impacts can be meaningfully 26· ·addressed with appropriate habitat offsetting land ·1· ·stewardship and compensation. ·2· · · · The fifth, and last, point I would like to address ·3· ·is questions around the adequacy of application ·4· ·information to quantify residual project impacts, and ·5· ·these would be impacts to plants, plant communities, ·6· ·ecosystems, wildlife habitats, and wildlife ·7· ·populations. ·8· · · · Benga states that its final closure and ·9· ·reclamation plan will be subject to Alberta Environment 10· ·review and approval.· Alberta Environment is also 11· ·responsible, according to Benga, for finalizing 12· ·criteria for reclamation success and for issuing 13· ·reclamation certificates.· Benga will be required to 14· ·provide a financial assurance under the Coal 15· ·Conservation Act, see Section F7 of the CNR plan, to 16· ·ensure compliance.· Benga claims that failure to 17· ·achieve reclamation goals is, therefore, not a valid 18· ·conclusion to the project.· Therefore, Benga does not 19· ·acknowledge a potential need for follow-up actions to 20· ·address inevitable losses of habitat availability and 21· ·suitability which are not accounted for in the 22· ·assessment (UNREPORTABLE SOUND) pardon me -- are not 23· ·accounted for in the assessment.· I'm sorry.· I'll have 24· ·to repeat that.· Therefore, Benga does not acknowledge 25· ·a potential need for follow-up actions to address 26· ·inevitable losses of habitat availability and ·1· ·suitability which are not accounted for in the ·2· ·assessment, nor are they fully recoverable. ·3· · · · Based on the Ktunaxa experience in the Elk Valley, ·4· ·post-project reclamation objectives are not being ·5· ·achieved, and residual impacts continue to occur. ·6· ·These impacts are measurable and verifiable only if, ·7· ·(a), adequate pre-project inventory data are gathered; ·8· ·and, (b), benchmark data are available to characterize ·9· ·expected successional trajectories for wildlife 10· ·abundance, species diversity, and distribution, as well 11· ·as for comparable plant communities, habitat types, 12· ·ecosystems, and seral stages. 13· · · · If it is not clear whether adequate project 14· ·footprint data have been gathered at -- at -- sorry, it 15· ·is not clear whether adequate project footprint data 16· ·have been gathered and whether representative benchmark 17· ·data are available in this case.· If not, it would be 18· ·difficult to meaningfully measure reclamation progress 19· ·or wildlife mitigation effectiveness relative to 20· ·ecosystem benchmarks.· It would also be difficult to 21· ·make adaptive adjustments to improve success or to 22· ·quantify residual effects where they are occurring. 23· ·The KNC would, therefore, like to see these information 24· ·needs -- to flag these information needs and receive 25· ·assurances from Alberta Environment that these 26· ·information needs have been adequately addressed. ·1· · · · · · Certainly with respect to wildlife and habitat ·2· · · ·mitigation, there are many opportunities to gather ·3· · · ·additional information on species at risk and valuable ·4· · · ·habitat attributes, such as wildlife trees, large woody ·5· · · ·debris, mineral licks, wallows, dens, roosts, ·6· · · ·hibernacula, et cetera, in the project area, and these ·7· · · ·would inform future mitigation and monitoring ·8· · · ·initiatives, as well as identification of residual ·9· · · ·impacts. 10· · · · · · KNC urge the proponent to further consider the 11· · · ·specific recommendations that have been made by KNC in 12· · · ·this regard. 13· · · · · · That concludes my presentation, and once again, 14· · · ·thank you to the Panel for the opportunity to present. 15· · · · · · Nicole, I believe you're next. 16· ·A· ·MS. KAPELL:· · · · · · Thank you, Marlene. 17· · · · · · (OTHER LANGUAGE SPOKEN).· Hello.· I just want to 18· · · ·check that everyone can hear me? 19· · · ·THE CHAIR:· · · · · · · ·Yeah. 20· ·A· ·MS. KAPELL:· · · · · · Okay.· Great.· So I'll be 21· · · ·speaking to our submission regarding cumulative 22· · · ·effects, which is on page 6 of the PDF· document. I 23· · · ·just wanted to bring a bit of context to the -- to the 24· · · ·idea of cumulative effects from a Ktunaxa worldview. 25· · · ·Ktunaxa law (OTHER LANGUAGE SPOKEN) establishes 26· · · ·stewardship obligations that include protection and ·1· ·preservation of lands and resources within Ktunaxa ·2· ·homelands for future generations. ·3· · · · One aspect of looking at the environment in which ·4· ·to Ktunaxa live is a concept of (OTHER LANGUAGE ·5· ·SPOKEN).· There's no single definition of (OTHER ·6· ·LANGUAGE SPOKEN).· However, it is -- it could be ·7· ·defined or thought to be the root of all things and the ·8· ·relationship between all things, including land, water, ·9· ·animals, Indigenous peoples, and the air that they 10· ·breathe.· It is a living balance.· It is linked to 11· ·Ktunaxa language and culture and connects all things 12· ·with the Creator and with one another. 13· · · · The concept of (OTHER LANGUAGE SPOKEN) is one that 14· ·KNC staff use to understand cumulative effects 15· ·assessment and management, and when looking at the 16· ·impacts of activities such as coal mining, Ktunaxa 17· ·citizens are consistently reminding their staff and 18· ·their leadership that you have to look at the whole and 19· ·not individual parts.· And so Ktunaxa Nation have been 20· ·living with cumulative effects of multiple large 21· ·open-pit coal mines, with additional applications in 22· ·the regulatory process, within their homelands. 23· · · · Based on decades of work, coal mining as well as 24· ·other industrial impacts, the Ktunaxa Nation have 25· ·created and participated at a government-to-government 26· ·level with British Columbia on the development of a ·1· ·cumulative effects management framework for the Elk ·2· ·Valley.· Through this work, we have learned a lot ·3· ·regarding cumulative effects assessment, management, ·4· ·and the co-development of methods for assessment and ·5· ·management that is inclusive of both Western science ·6· ·and Indigenous knowledge perspectives. ·7· · · · Based on this, the KNC have recommended that Benga ·8· ·be required to support the development of an ·9· ·Indigenous-led cumulative effects strategy that is 10· ·inclusive of the Grassy Mountain Project.· In order to 11· ·do this, we're suggesting that a working group be 12· ·established that is co-led by provincial government and 13· ·Indigenous nations, inviting other proponents and 14· ·stakeholders with an interest in the area to sit at 15· ·this table. 16· · · · This table would establish geographic boundaries, 17· ·shared visions, goals, and objectives, co-developing a 18· ·framework to assess and manage cumulative effects for 19· ·the southwestern area of Alberta, and there is also an 20· ·interest in looking at opportunities to collaborate 21· ·with British Columbia on cross-border impacts that may 22· ·affect the Elk Valley or Flathead area of British 23· ·Columbia. 24· · · · We found success in having a broad working group 25· ·that shares resources, implements management strategies 26· ·across impact areas, and looks for opportunities for ·1· · · ·net benefits such as terrestrial offsetting programs. ·2· · · · · · I'm going to hand it over to my colleague ·3· · · ·Dr. Craig Candler to speak a little bit to our ·4· · · ·understanding or ideas around terrestrial offsetting. ·5· ·A· ·DR. CANDLER:· · · · · ·Thank you, Nicole. ·6· · · · · · And I -- I just highlight for the Panel that this ·7· · · ·is -- this is following on some of the comments I think ·8· · · ·we heard this morning and some of the questions that we ·9· · · ·raised.· The Ktunaxa Nation has brought forward the 10· · · ·idea, the -- the recommendation of terrestrial offsets, 11· · · ·so stewardship offsets, as one of the tools that may be 12· · · ·very useful to an Indigenous-led cumulative effects 13· · · ·strategy. 14· · · · · · I think the challenge with strategies and working 15· · · ·groups and plans and all of these sorts of things is 16· · · ·it's difficult to have confidence regarding the actual 17· · · ·outcomes of them and how those outcomes should 18· · · ·influence our understandings regarding a project's 19· · · ·residual effects and its contribution to cumulative 20· · · ·effects. 21· · · · · · I think we've heard from Marlene Machmer and other 22· · · ·people in the panel here, I think also from Ray, about 23· · · ·the -- the fact that Ktunaxa experience with coal 24· · · ·mining and -- and -- and coal-mining mitigation is that 25· · · ·mitigations often aren't complete.· They often don't 26· · · ·work as well as we hope, and they often result in a ·1· ·partial reduction of impact, but don't resolve the ·2· ·impact itself. ·3· · · · The same is true of restoration, that it's very ·4· ·common that the optimistic perspectives regarding ·5· ·restoration that are expressed at the outset of a ·6· ·project don't, in fact, end up being the case towards ·7· ·the end of the project.· The -- the aspirations of ·8· ·cultural and ecological effectiveness don't -- aren't ·9· ·achieved. 10· · · · As Marlene mentioned, the issues of climate change 11· ·and interactions of the environment with the project 12· ·also raises serious uncertainties regarding whether or 13· ·not culturally and effective reclamation, restoration 14· ·can -- can occur. 15· · · · And even if we are successful, even if mitigations 16· ·do function properly, as hoped, even if restoration and 17· ·reclamation is achieved, we are still left with the 18· ·issue of time lag and the fact that these landscapes 19· ·that will be subject to coal mining will be -- 20· ·effectively remove those landscapes and impact 21· ·surrounding landscapes for Ktunaxa citizens for at 22· ·least -- at least 25 years, and certainly with 23· ·anticipated rec -- time to achieve full reclamation, 24· ·restoration.· We're likely looking at multiple Ktunaxa 25· ·generations.· That's multiple Ktunaxa generations who 26· ·have to live with industrial impacts, have to live with ·1· ·the fact that they cannot be on the land as they once ·2· ·were.· And once we have multiple generations of ·3· ·removal, we are looking at permanent effects on Ktunaxa ·4· ·knowledge, Ktunaxa culture, Ktunaxa rights and ·5· ·interests, including governments -- governance and ·6· ·stewardship. ·7· · · · Now, as -- as Nicole mentioned, the KNC has ·8· ·extensive experience with habitat offsets or ·9· ·stewardship offsets in the Elk Valley, and this is 10· ·having a success.· If -- if the Panel is interested in 11· ·specifics, then I'd invite questions, and I'm sure 12· ·Nicole or -- or others would be able to speak about the 13· ·Ktunaxa experience with stewardship offsets. 14· · · · I -- I would finalize things just by highlighting 15· ·that offsetting does have to be done very carefully, 16· ·and it's also not certain.· It's an emerging standard 17· ·that have -- that offsets need to be provided. A 18· ·multiple of the actual disturbance generally in the 19· ·order of 4 to 1, and that in cases where you're dealing 20· ·with species at risk or habitats that are -- are 21· ·difficult to reclaim and restore, it's -- it's 22· ·frequently required that higher level -- higher ratios 23· ·be implemented.· So higher than 4 to 1. 24· · · · It's also critically important to look for habitat 25· ·offsets that are like for like in the sense that when 26· ·we talk about disturbance of areas, we're looking for ·1· · · ·offset areas that are -- are similar and -- and will ·2· · · ·help support the kinds of values being impacted. ·3· · · · · · And, finally, it's critical that habitat offsets ·4· · · ·or stewardship offsets consider both the ecological ·5· · · ·effectiveness and the cultural effectiveness of ·6· · · ·offsets.· Where both of these can be achieved, habitat ·7· · · ·or stewardship offsets are an excellent opportunity to ·8· · · ·provide certainty, not only for ecological factors in ·9· · · ·the -- the -- the environment, the quality of water, 10· · · ·the flow of streams in a region, the survival of -- of 11· · · ·animal populations, but also to multiply the benefit of 12· · · ·those through providing places for Ktunaxa citizens or 13· · · ·other Indigenous peoples to be able to continue to 14· · · ·practice rights, continue to interact with children, 15· · · ·pass on knowledge about the area in those places. 16· · · · · · I'll -- I'll wrap things up there.· I'd like to 17· · · ·thank the Panel for -- for time, and -- and to ask if 18· · · ·any of the -- the other members of the KNC team have 19· · · ·anything additional to -- to say before we -- we turn 20· · · ·it over. 21· ·A· ·MS. KAPELL:· · · · · · I just wanted to provide one 22· · · ·concrete example of the offsetting that Craig was 23· · · ·speaking to, and that is based on -- and -- and we 24· · · ·didn't speak as much to cultural impact today.· We have 25· · · ·been working with -- with Benga on those types of 26· · · ·things, but we've had examples where there have been ·1· · · ·major impacts to Ktunaxa cultural heritage resources ·2· · · ·that include tangible and intangible heritage, and one ·3· · · ·of our mitigations was the purchase of offsetting lands ·4· · · ·that are extremely important to Ktunaxa from a cultural ·5· · · ·perspective that are being managed currently -- jointly ·6· · · ·managed by the Ktunaxa Nation as a cultural landscape, ·7· · · ·and that the offset lands are important ecologically ·8· · · ·but were identified by Ktunaxa because of their ·9· · · ·importance as cultural landscapes.· Thank you. 10· ·Q· ·MR. HOWARD:· · · · · · Before we conclude, I would 11· · · ·just like to ask whether any of the other KNC witness 12· · · ·panel members have anything further to add to their 13· · · ·direct evidence at this point? 14· · · ·THE COURT REPORTER:· · · Mr. Howard, can you please put 15· · · ·your video on. 16· · · ·MR. HOWARD:· · · · · · · It is on, though I don't see 17· · · ·myself in the menu bar that I have visible to me right 18· · · ·now.· Am I visible? 19· · · ·THE COURT REPORTER:· · · Yes, sir.· Thank you. 20· · · ·MR. HOWARD:· · · · · · · I see.· Yeah.· Apologies for 21· · · ·not doing so earlier. 22· · · · · · Mr. Chair, hearing nothing from the KNC witness 23· · · ·panel, that concludes our direct evidence. 24· · · ·THE CHAIR:· · · · · · · ·Okay.· Thank you, Mr. Howard. 25· · · ·We've been going for a little while, so I'm going to 26· · · ·suggest we take a short break, and then we'll come back ·1· · · ·to see if there are any questions for the panel. ·2· · · · · · So it's 2:35.· Let's take a 15-minute break and ·3· · · ·come back at 2:50. ·4· · · ·(ADJOURNMENT) ·5· · · ·THE CHAIR:· · · · · · · ·Okay.· Welcome back, everyone. ·6· · · · · · Mr. Brinker or Mr. Ignasiak, any questions for ·7· · · ·this panel of witnesses? ·8· · · ·MR. BRINKER:· · · · · · ·Sorry, Mr. Chair.· Can we just ·9· · · ·have one more minute? 10· · · ·THE CHAIR:· · · · · · · ·Sure. 11· · · ·MR. BRINKER:· · · · · · ·Thank you. 12· · · · · · Thank you for that minute, Mr. Chair. 13· · · · · · We do have just a couple questions for the Ktunaxa 14· · · ·witness panel. 15· · · ·THE CHAIR:· · · · · · · ·Okay.· Go ahead, Mr. Brinker. 16· · · ·MR. BRINKER:· · · · · · ·Thank you. 17· · · ·Mr. Brinker Cross-examines Ktunaxa Nation Council 18· ·Q· ·MR. BRINKER:· · · · · ·First of all, thank you for 19· · · ·your presentation today.· We -- we did notice that a 20· · · ·couple witnesses this afternoon spoke to the issue 21· · · ·of -- or the idea of terrestrial offsetting. 22· · · · · · We were wondering if someone on the Ktunaxa 23· · · ·witness panel can speak to what the -- what they have 24· · · ·in mind for who would -- who would manage this -- these 25· · · ·terrestrial offsets? 26· ·A· ·MS. KAPELL:· · · · · · Hi.· I can speak to that or ·1· ·start the conversation. ·2· · · · We are open to conversations about what management ·3· ·would look like.· In some cases, you know, we were ·4· ·involved in leading management of an Indigenous ·5· ·conservation and protected area here in British ·6· ·Columbia, and that's led wholly by the Ktunaxa Nation ·7· ·Council.· We have -- there are other options where we ·8· ·co-manage areas with proponents or with other ·9· ·Indigenous nations. 10· · · · We do have one example of a co-management area 11· ·with several provincial government ministries, the 12· ·Ktunaxa Nation, as well as the Nature Conservancy of 13· ·Canada working under a draft joint management 14· ·agreement, and so I think that these types of 15· ·terrestrial offsetting lands, you know, dependent on 16· ·whether they're Crown or private lands, wholly owned by 17· ·Benga, or transferred to another entity such as a 18· ·nonprofit or a nature conservancy, transferred to an 19· ·Indigenous nation, et cetera, there are many options 20· ·for the management of that. 21· · · · And I think that, you know, in speaking about 22· ·collaboration and things such as the Indigenous 23· ·stewardship group or monitoring processes, I think, 24· ·that KNC are interested in, understanding or -- or 25· ·looking at more cooperative ways of managing -- 26· ·managing or stewarding offsetting lands.· Thank you. ·1· ·Q· ·Okay.· And who would you foresee as having access to ·2· · · ·these terrestrial offset areas? ·3· ·A· ·Yeah.· So very much so in similar vein.· I think that ·4· · · ·access management would have to be something that would ·5· · · ·be considered within a joint management agreement for ·6· · · ·these lands; and I think, again, aligning that with the ·7· · · ·access management plan that Benga is already looking to ·8· · · ·develop I think would be probably a good avenue to ·9· · · ·take, but wanting to be open about that as well just to 10· · · ·make sure that enough people are part of that 11· · · ·conversation.· Yeah.· Thanks. 12· ·Q· ·Thank you for that -- for that response. 13· · · · · · Just one more question:· Does the KNC have 14· · · ·specific lands or a specific location in mind for this 15· · · ·kind of offsetting? 16· ·A· ·At this point in time, I don't think that we have 17· · · ·anything specific.· I think that we -- you know, 18· · · ·we've -- have had this conversation with Benga a couple 19· · · ·of times and just discussed, you know, if this were -- 20· · · ·if this were a path we would go down, there would have 21· · · ·to be some discussion around whether -- you know, what 22· · · ·types of properties would be looked at.· And as my 23· · · ·colleague Craig Candler mentioned, you know, looking 24· · · ·for something that is ecologically similar to the 25· · · ·impacted area to make sure that the offsetting is -- 26· · · ·is -- it's meeting -- meeting the objective of why it's ·1· · · ·an offset land. ·2· · · · · · And -- and I think that moving -- you know, moving ·3· · · ·forward, if this were something that we were ·4· · · ·considering -- you know, there are a lot of options out ·5· · · ·there in -- in Alberta, and we have been looking at ·6· · · ·them.· There could be tenured areas or private lands ·7· · · ·that Benga already owns or other areas we could look ·8· · · ·at. ·9· ·Q· ·Thank you for that, Ms. Kapell. 10· · · · · · Benga has no other questions for the panel. 11· · · ·THE CHAIR:· · · · · · · ·Thank you.· Ms. LaCasse or 12· · · ·Ms. Kapel Holden, any questions? 13· · · ·MS. LACASSE:· · · · · · ·We actually both have a couple 14· · · ·of questions, but I'll go first. 15· · · ·Alberta Energy Regulator Staff Questions Ktunaxa Nation 16· · · ·Council 17· ·A· ·MS. MACHMER:· · · · · ·So if we could get pulled 18· · · ·by the Zoom host Document 564, which is Ktunaxa's 19· · · ·September 25th submission.· And if you could go to 20· · · ·pages 49 and 50.· So page 49, please.· And you'll see 21· · · ·that at page 49, Ktunaxa comments on the proposed 22· · · ·environmental monitoring committee that Benga has 23· · · ·proposed in their Addendum 12. 24· · · · · · And in the first -- second full paragraph, it 25· · · ·says:· (as read) 26· · · · · · The holder must invite participation from ·1· · · · · · KNC.· The proponent must invite participation ·2· · · · · · from additional agencies or organizations ·3· · · · · · where relevant to particular topics being ·4· · · · · · discussed. ·5· · · ·So my first question is:· What additional agency or ·6· · · ·organizations does Ktunaxa believe should be involved? ·7· ·A· ·DR. CANDLER:· · · · · ·Just a point of clarification. ·8· · · ·I read the question in this example to be specific to ·9· · · ·"Environmental Monitoring Aquatic Effects, Fisheries 10· · · ·Offsetting, and Compliance Notification". 11· ·Q· ·Okay. 12· ·A· ·All right.· I think we'll just take a couple of minutes 13· · · ·amongst ourselves and -- and -- before we respond. 14· ·Q· ·Please do. 15· ·A· ·MR. SINCLAIR:· · · · · Good afternoon, Mr. Chair. 16· · · ·Thank you for the question. 17· · · · · · So I can provide some examples of our existing 18· · · ·environmental monitoring committee that is in the Elk 19· · · ·Valley in response to the Teck coal mining.· So the 20· · · ·agencies that are -- are represented there include the 21· · · ·Ktunaxa First Nation, of course, as well as the -- the 22· · · ·company, and provincial agencies, including the 23· · · ·Ministry of Environment, Ministry of Energy and Mines, 24· · · ·and the Interior Health Authority. 25· · · · · · So it is our perspective that an EMC in this 26· · · ·context would include similar government agencies, ·1· · · ·including federal agencies such as DFO. ·2· ·Q· ·Thank you. ·3· · · · · · I think I probably know the answer to this based ·4· · · ·on your earlier evidence, but the same paragraph that I ·5· · · ·just read from about additional agency or ·6· · · ·organizations, the third sentence talks about: ·7· · · ·(as read) ·8· · · · · · The purpose of the EMC is to facilitate ·9· · · · · · information sharing and provide advice to the 10· · · · · · proponent on ongoing development of the 11· · · · · · project and mitigation measures in a 12· · · · · · coordinated and collaborative manner. 13· · · ·So the question we have for you is whether you foresee 14· · · ·the committee being a technical committee or one 15· · · ·designed to provide traditional knowledge, advice on 16· · · ·monitoring plans, or would it be both? 17· ·A· ·Good afternoon.· It's Jesse Sinclair here again. 18· · · · · · I would foresee the environmental monitoring 19· · · ·committee to provide both, you know, technical input on 20· · · ·monitoring plans, as well as Indigenous knowledge from 21· · · ·KNC, as well as other affected First Nations, which is 22· · · ·another organization that should be included in the 23· · · ·EMC.· And I'll turn it over to Nicole, who might have 24· · · ·some additional information to -- to give. 25· ·A· ·MS. KAPELL:· · · · · · Hi.· Thank you. 26· · · · · · Yes.· As Jesse said, or Mr. Sinclair said, you ·1· · · ·know, we see the value in ensuring that this type of ·2· · · ·committee is one that is inclusive of Indigenous ·3· · · ·knowledge as well as Western science technical ·4· · · ·knowledge.· And we have had experience in the Elk ·5· · · ·Valley with -- we've had some hiccups with that type of ·6· · · ·thing, as it has -- it can be difficult, and so ·7· · · ·ensuring that we, you know, look at a mechanism that -- ·8· · · ·one that, you know, that you -- that essentially trying ·9· · · ·to structure this committee in a way that meets the 10· · · ·needs of Indigenous nations to ensure that the way that 11· · · ·their knowledge is incorporated or included is -- is 12· · · ·conducive to their worldview, because we have had some 13· · · ·hiccups where -- just that trying to walk -- trying to 14· · · ·balance between traditional knowledge and technical or 15· · · ·Western scientific knowledge has been -- it's been 16· · · ·challenging to try to bring both sides of the table 17· · · ·together to a common understanding.· I think that we 18· · · ·can learn from some of the -- the -- you know, the -- 19· · · ·the past mistakes that have been made.· But definitely 20· · · ·the structure of the committee is one that should be 21· · · ·well thought out. 22· · · · · · Thank you. 23· ·Q· ·Thank you. 24· · · · · · Just give me one moment, please. 25· ·A· ·DR. CANDLER:· · · · · ·If -- if I may, I think I 26· · · ·would add to Nicole's response.· There's a couple of ·1· · · ·hallmarks that may be useful, things like making sure ·2· · · ·that Indigenous knowledge is taken on par with, sort of ·3· · · ·as -- as in equal footing with other forms of ·4· · · ·knowledge.· Other things like making sure that ·5· · · ·Indigenous knowledge holders are included as ·6· · · ·decision-makers, in addition to Indigenous knowledge ·7· · · ·itself.· So there's a couple -- some things that could ·8· · · ·be looked for to -- to help strengthen that kind of an ·9· · · ·organization -- or committee. 10· ·Q· ·Okay.· Thank you. 11· · · · · · I'd like to take you back to the document. 12· · · ·There's a discussion about the terms of reference for 13· · · ·the committee, and it says -- what does it say? 14· · · ·(as read) 15· · · · · · The terms of reference must describe at a 16· · · · · · minimum the means by which through the EMC, 17· · · · · · by which through the EMC the proponent 18· · · · · · must -- 19· · · ·MS. LACASSE:· · · · · · ·And if you go to the next 20· · · ·page, please, Zoom Host. 21· ·Q· ·MS. LACASSE:· · · · · ·At the top it's Point Number 22· · · ·2.· And it states:· (as read) 23· · · · · · Provide the results of all the environmental 24· · · · · · monitoring activities required through the 25· · · · · · certificate to the EMC. 26· · · ·My staff just wanted me to clarify what the meaning of ·1· · · ·the word "certificate" is as it's used here in Point 2, ·2· · · ·also in Point 3, 4, and 5? ·3· ·A· ·MS. KAPELL:· · · · · · Thank you for that question. ·4· · · ·So this information or the -- the language that we've ·5· · · ·put in here is sample language, as mentioned, from ·6· · · ·the -- the terms of reference of an existing ·7· · · ·environmental monitoring committee which was struck as ·8· · · ·part of a -- an -- a condition of an environmental ·9· · · ·assessment certificate issued by the Province of 10· · · ·British Columbia to a coal-mining proponent in British 11· · · ·Columbia.· And so that -- the term "certificate" refers 12· · · ·to the environmental assessment certificate.· Thanks. 13· ·Q· ·Okay.· Thank you. 14· · · · · · If we go down to Point 4, the same bullet point, 15· · · ·it states:· (as read) 16· · · · · · Discuss adaptive management measures that may 17· · · · · · address adverse effects not remediated by 18· · · · · · implementing documents required by the 19· · · · · · certificate. 20· · · ·And, again, just some clarification on the language. 21· · · ·What is meant by "implementing documents"? 22· ·A· ·Hi.· Sorry.· Trying to find my unmute. 23· · · · · · The documents refer to management and monitoring 24· · · ·plans that are -- were required as a part of the EA 25· · · ·certificate. 26· ·Q· ·Okay.· Thank you. ·1· · · · · · So today, Benga stated in its evidence that it was ·2· · · ·of the view that there are some common basis points in ·3· · · ·the environmental monitoring plan between Ktunaxa and ·4· · · ·Benga.· Does Ktunaxa agree that's the case? ·5· ·A· ·Yes.· We do have some common points and objectives ·6· · · ·for -- for that. ·7· ·Q· ·And are you able to tell me what those are? ·8· ·A· ·I think we'll just need one minute to -- to discuss. ·9· ·Q· ·Thank you. 10· · · ·MR. HOWARD:· · · · · · · Mr. Chair, it's apparent from 11· · · ·our discussion that we would appreciate if Ms. LaCasse 12· · · ·would repeat the question so that we can best prepare 13· · · ·to answer it.· We all have different ideas about what 14· · · ·we're supposed to be answering.· Thank you. 15· ·Q· ·MS. LACASSE:· · · · · ·All right.· Earlier today when 16· · · ·Benga was giving evidence, one of its witnesses stated 17· · · ·that there are some common basis points in the 18· · · ·environmental monitoring plan between Ktunaxa and 19· · · ·Benga. 20· · · · · · Would Ktunaxa agree with that?· And if you do, are 21· · · ·you able to tell me, or staff, what the points of 22· · · ·agreement are? 23· · · ·MR. HOWARD:· · · · · · · Ms. Kapell, do we require some 24· · · ·further caucus time, or are we ready to answer? 25· ·A· ·MS. KAPELL:· · · · · · Just another minute, please. 26· · · ·MR. HOWARD:· · · · · · · Thank you.· We'll require ·1· · · ·another minute.· Thank you. ·2· ·A· ·MS. KAPELL:· · · · · · Okay.· I will take a stab at ·3· · · ·answering some of this but may turn to my colleagues, ·4· · · ·because the plans do span a number of disciplines. ·5· · · · · · I would say that generally where we have agreement ·6· · · ·is around the types of environmental monitoring plans ·7· · · ·and management plans that are being proposed, that ·8· · · ·having these types of plans, such as the water ·9· · · ·quality -- yeah, and having some of these plans in 10· · · ·place will go a ways to address some of the issues that 11· · · ·we had brought up in our responses.· However, I think a 12· · · ·little bit more work needs to be done in terms of the 13· · · ·specifics of the plans, and I think that's something 14· · · ·that we heard this morning from Benga when they gave 15· · · ·evidence, that a lot of the specifics of their 16· · · ·environmental management and monitoring plans are still 17· · · ·to be worked out, particularly those that are inclusive 18· · · ·of Indigenous nations, as we have not, you know, all 19· · · ·come to the table to discuss those. 20· · · · · · So I think where we have points of agreement is 21· · · ·that the -- the types of plans that are needed and some 22· · · ·of the specifics within those plans that we've been 23· · · ·discussing with Benga on an ongoing basis, but, again, 24· · · ·I think the specifics need to be discussed still. 25· · · · · · And I don't know if any of my colleagues on some 26· · · ·of the more specific plans that pertain to their ·1· · · ·discipline areas have anything else to say on that. ·2· ·A· ·DR. CANDLER:· · · · · ·Craig Candler here. ·3· · · · · · I'll -- I'll just add one part to that -- or a ·4· · · ·couple of parts to that.· One is that there are some ·5· · · ·overarching fundamentals of the management plans that ·6· · · ·would -- would generally need to be present, and I ·7· · · ·don't know that we have the specifics present yet, and ·8· · · ·those are things like adaptive management.· So that if ·9· · · ·things are not -- you know, if mitigations are not 10· · · ·performing as anticipated, there is a process for 11· · · ·adaptive management with a clear sense of thresholds 12· · · ·for action that result in changes if -- if -- if, for 13· · · ·example, preferred engineering approaches aren't having 14· · · ·the desired effect on water quality, that sort of 15· · · ·thing.· So, essentially, the -- the adaptive management 16· · · ·provisions that allow plans to be evaluated on an 17· · · ·ongoing basis and adjustments to be made, if -- if 18· · · ·necessary. 19· · · · · · My understanding is that there's also another area 20· · · ·where there -- there may not be a common ground as yet, 21· · · ·is the role that particular mitigations may play in a 22· · · ·plan; for example, a mitigation around creation of 23· · · ·offsets.· You know, in -- in making plans, it's 24· · · ·critical to have clarity regarding what kinds of tools 25· · · ·are -- are able to be operated within a particular 26· · · ·plan, so that's -- that's -- that's, I think, one where ·1· · · ·the issue of -- of offsetting would, if -- if ·2· · · ·implemented, that mitigation would have clear benefits ·3· · · ·at the water-quality level, at the wildlife level, at ·4· · · ·the cultural-use level, and so that -- that would be an ·5· · · ·example of where there's -- there's a ways to go, I ·6· · · ·suppose, in achieving that common ground. ·7· ·Q· ·All right.· So is it fair to say, based on what you've ·8· · · ·just said, that the types of plans have been agreed ·9· · · ·upon and some specifics, but there's still more details 10· · · ·to be worked out? 11· ·A· ·MS. MACHMER:· · · · · ·Yes, that is correct.· Marlene 12· · · ·here.· I would say that on the theme of monitoring 13· · · ·specifically in these plans, the indicators to be 14· · · ·selected and the details around effectiveness 15· · · ·monitoring at the back end, those are things that have 16· · · ·not yet been discussed or worked out, and obviously a 17· · · ·lot more detail will be required there. 18· ·Q· ·Thank you. 19· · · · · · Is there anyone else who would like to add 20· · · ·anything to that question?· I take the silence as a no. 21· · · · · · So I am done asking you questions.· My colleague 22· · · ·Barbara Kapel Holden would like to ask a question.· I'm 23· · · ·not sure if Ms. Holden needs another moment or if she's 24· · · ·ready. 25· · · ·MS. KAPEL HOLDEN:· · · · I'm ready to go.· Thank you 26· · · ·very much, Ms. LaCasse. ·1· ·Q· ·MS. KAPEL HOLDEN:· · · Good afternoon, panel.· I have ·2· · · ·some questions, and I'm going to first start off with ·3· · · ·Ms. Machmer.· Good afternoon. ·4· ·A· ·MS. MACHMER:· · · · · ·Good afternoon. ·5· ·Q· ·You had stated, and I think this is also in your ·6· · · ·submissions, that:· (as read) ·7· · · · · · The East Slope of the Rockies is major ·8· · · · · · migration routes for raptors with close to ·9· · · · · · 9,000 individual raptors at Vicki Ridge hawk 10· · · · · · watch site.· These sightings comprise 18 11· · · · · · raptor species, including federally and 12· · · · · · provincially listed species.· The value of 13· · · · · · the Grassy Mountain area as a key raptor 14· · · · · · corridor [and potentially] and potential 15· · · · · · impacts were not considered by Benga. 16· · · ·Do you know of the 9,000 individual raptors what 17· · · ·percentage were eagles? 18· ·A· ·I believe it's approximately -- it varies by year, but 19· · · ·I -- I do recall not for that particular site, Vicki 20· · · ·Ridge, but that certainly the general migration 21· · · ·corridor on the East Slope of the Rockies is very 22· · · ·important for eagles in particular, and I would say, 23· · · ·based on the work of Peter Sherrington, that 24· · · ·approximately close to 35 to 40 percent of -- of 25· · · ·those -- the migration recordings could comprise 26· · · ·eagles, but I'm -- I'm not confident enough to give you ·1· · · ·a number.· It's somewhere in the 40 percent range, I do ·2· · · ·believe, based on Peter Sherrington's data. ·3· ·Q· ·And you also mentioned, I think it was in Ktunaxa's ·4· · · ·submission and CIAR 178, that the Rocky Mountain Eagle ·5· · · ·Research Foundation apparently has several raptor ·6· · · ·migration watch stations scattered throughout the Rocky ·7· · · ·Mountains. ·8· · · · · · Do you recall if their website that you also quote ·9· · · ·in the submission would have that information? 10· ·A· ·Yes.· Their website, it has a "contact us" feature, and 11· · · ·Peter Sherrington is the manager of that website, and 12· · · ·certainly he could provide more detailed information 13· · · ·regarding specific hawk watch stations for which they 14· · · ·compile the data on an annual basis. 15· · · · · · I -- I can tell you that almost all of the 16· · · ·stations are on the Alberta side, and in British 17· · · ·Columbia there is a lack of data, and certainly that 18· · · ·has been a problem with respect to coal mines in the 19· · · ·Elk Valley and getting appropriate data to address 20· · · ·impacts on migratory raptors on the BC side. 21· · · · · · So Alberta certainly does have a much better data 22· · · ·set based on hawk watch stations that have been 23· · · ·monitored for years. 24· ·Q· ·Would you undertake to contact the Rocky Mountain Eagle 25· · · ·Research Foundation to obtain their numbers in regards 26· · · ·to what percentage of the 9,000 individual raptors at ·1· · · ·the Vicki Ridge hawk watch site -- of that 9,000 ·2· · · ·individual raptors, what percentage were eagles?· Would ·3· · · ·you undertake to provide that information to the Panel? ·4· ·A· ·I could certainly make an inquiry to get an estimate ·5· · · ·for the three years that I quoted, yes.· Yes. ·6· ·Q· ·Thank you very much for that. ·7· ·A· ·You're welcome. ·8· · · ·MS. KAPEL HOLDEN:· · · · And I believe that needs an ·9· · · ·undertaking number.· Ms. Arruda? 10· · · ·MS. ARRUDA:· · · · · · · Yes, the next undertaking 11· · · ·number is Undertaking 11. 12· · · ·MS. KAPEL HOLDEN:· · · · Thank you. 13· ·Q· ·MS. KAPEL HOLDEN:· · · Moving to my next question. 14· · · ·Ms. Machmer, I will address this to you, but it could 15· · · ·also be someone on the panel as well. 16· · · · · · Can you confirm that Benga included bald and 17· · · ·golden eagles within their environmental impact 18· · · ·assessment? 19· ·A· ·MS. MACHMER:· · · · · ·I do recall reading the 20· · · ·environmental impact assessment that both bald and 21· · · ·golden eagles were considered species of cultural 22· · · ·importance to First Nations that were consulted, and, 23· · · ·hence, certainly those two species were considered from 24· · · ·a cultural perspective, yes. 25· ·Q· ·And would you consider this assessment to be adequate, 26· · · ·and are there any specific mitigations or monitoring ·1· · · ·methods you would recommend? ·2· ·A· ·Certainly the emphasis of the assessment was on their ·3· · · ·cultural value.· And to be perfectly honest, I am not ·4· · · ·entirely -- I'm trying to recall how much information ·5· · · ·was gathered with respect to the status of both of ·6· · · ·these populations and how that factored into the more ·7· · · ·cultural significance evidence. ·8· · · · · · I -- I don't recall a large amount of information ·9· · · ·gathered with respect to the status of bald eagle and 10· · · ·gold [sic] eagle populations, but then my sense is that 11· · · ·these two species are much more stable than some of the 12· · · ·other raptors that I referred to today that are at risk 13· · · ·either within Alberta or federally. 14· · · · · · So it's very difficult for me right here and now 15· · · ·to comment on the adequacy of the evidence for those 16· · · ·two species, but the fact that I did not dwell on that 17· · · ·aspect of the assessment in my commentary suggests to 18· · · ·me that I likely was all right with what was provided 19· · · ·with respect to those two species, and my current -- my 20· · · ·concern with regard to migratory raptors would focus 21· · · ·more on some of the other species that are at risk, 22· · · ·either within Alberta or in a federal context. 23· ·Q· ·Thank you very much for your answer. 24· · · · · · My next set of questions are -- will be directed 25· · · ·to Mr. Burns.· Good afternoon, Mr. Burns. 26· ·A· ·MR. BURNS:· · · · · · ·Good afternoon. ·1· ·Q· ·Can you elaborate on Ktunaxa's concerns regarding the ·2· · · ·sampling methodology used in Benga's fisheries baseline ·3· · · ·assessment, the instream flow assessment, and the ·4· · · ·aquatic effects assessment? ·5· ·A· ·Sorry.· Can you repeat the question?· I did highlight ·6· · · ·some of the concerns in the assessment -- in our review ·7· · · ·itself today, so just be a bit more specific, please. ·8· ·Q· ·One moment, please. ·9· · · · · · Just to provide you some more information on that 10· · · ·question.· So it's -- I was asking for elaboration on 11· · · ·Ktunaxa's concerns regarding the sampling methodology 12· · · ·used in Benga's fisheries baseline assessment, the 13· · · ·instream flow assessment, and aquatic effects 14· · · ·assessment.· And what I am seeking is what you thought 15· · · ·was lacking in the methodology for each assessment that 16· · · ·was mentioned. 17· ·A· ·Yeah -- 18· ·Q· ·So -- 19· ·A· ·-- I think definitely from a high level what I, you 20· · · ·know, identified today, there was a lack of nearfield 21· · · ·and midfield sites which have implications on the study 22· · · ·design itself.· In some cases, certain species were 23· · · ·kind of -- fish species were kind of collated together 24· · · ·to get fish tissue abundance information and tissue 25· · · ·metal data, which is not standard practice for metal 26· · · ·mines and other types of mines in Canada and BC as ·1· ·well, so I identified those concerns today. ·2· · · · I'm accessing my other comments here.· You know, ·3· ·one thing that we identified was, from a fish and ·4· ·aquatic habitat perspective, is there was definitely ·5· ·limited sampling in the Crowsnest River, and the ·6· ·project area is not that far away from the Crowsnest ·7· ·River and is -- you know, it could have far-reaching ·8· ·impacts into the Crowsnest River, so we feel like ·9· ·that's an important aspect to consider and to monitor 10· ·from the aquatic environment side of things. 11· · · · A number of biological information was gathered as 12· ·well, as part of the program, and -- but not all the -- 13· ·well, one would expect the data to be gathered from all 14· ·leaf life and sampled fish was actually collected, so 15· ·liver information, gonad size information, all that 16· ·information is kind of taken holistically in developing 17· ·an environmental effects monitoring program and -- and 18· ·the ability to detect changes over time. 19· · · · And just the lack of coordination, it seemed like, 20· ·you know, from the outside looking in, that there 21· ·was -- typically what you would try -- you try to do is 22· ·you collect your periphyton data, I'm thinking 23· ·invertebrate data, fish tissue data, all at the same 24· ·site, and you kind of -- kind of make those 25· ·relationships and identify -- you know, get a better 26· ·understanding of trophic-level changes of, let's say, ·1· · · ·selenium bioaccumulation up the food chain, and that ·2· · · ·specifically wasn't done for this program. ·3· · · · · · So those are some, you know, areas of concern that ·4· · · ·we highlighted earlier today.· And, you know, I feel ·5· · · ·that's -- you know, further work could be done to kind ·6· · · ·of increase the temporal extent.· So more than just one ·7· · · ·year of data to get a good baseline information moving ·8· · · ·forward. ·9· · · · · · From an instream flow perspective, you know, 10· · · ·overall I thought the assessment was -- was done well. 11· · · ·Our main concern, obviously, is just, you know, a lot 12· · · ·of the modelling -- I guess essentially that it's just 13· · · ·modelling.· And it's just -- you know, it's -- it's -- 14· · · ·models are a simplication [sic] of the natural 15· · · ·environment, so at least the cell uncertainty as to 16· · · ·what -- you know, the results of that and what that 17· · · ·would translate to in the real -- in the real world. 18· · · ·So that's why we put an emphasis on, you know, further 19· · · ·monitoring and then mitigation measures if -- if the 20· · · ·project were to proceed. 21· ·Q· ·Okay.· Thank you very much. 22· · · · · · My next question to you is:· How do you think the 23· · · ·fisheries-related data that was presented by Benga 24· · · ·could be supplemented with additional baseline 25· · · ·information to ensure an effective before/after 26· · · ·baseline impact monitoring plan can be implemented for ·1· · · ·the project? ·2· ·A· ·Yeah.· Well, you know, I believe they did.· From my ·3· · · ·review of the baseline information is -- you know, ·4· · · ·taken a look at other existing data that's out there in ·5· · · ·the surrounding project area and further downstream. I ·6· · · ·believe that was done as part of the project. ·7· · · · · · I think -- and a lot -- and some of that data that ·8· · · ·exists may not be directly applicable to developing a ·9· · · ·an environmental effects monitoring program specific to 10· · · ·this project.· So where we're coming up with this is 11· · · ·that rather than having that just one year of data 12· · · ·that -- you know, we collectively come together, 13· · · ·discuss what the aquatic effects monitoring program 14· · · ·would look like, how specifically it's going to be 15· · · ·monitored.· What are the metrics?· What are the 16· · · ·triggers?· And then based upon that, then we can 17· · · ·initiate, you know, collecting more information for 18· · · ·another year or two, couple years, so we have a solid 19· · · ·baseline data set to kind of move forward with. 20· · · · · · And some of that information from previous -- from 21· · · ·the baseline sampling definite -- definitely is 22· · · ·applicable.· In some cases it might not be, depending 23· · · ·on what is going to be selected.· So we're kind of 24· · · ·looking a bit more into -- into the future here of -- 25· · · ·of the data itself and how it can be used. 26· ·Q· ·Thank you. ·1· · · · · · And just one moment, please. ·2· · · · · · Thank you.· Those are all my questions. ·3· ·A· ·Thank you. ·4· · · ·THE CHAIR:· · · · · · · ·Thank you. ·5· · · · · · Mr. Lambrecht, any questions for this witness ·6· · · ·panel? ·7· · · ·MR. LAMBRECHT:· · · · · ·Yes, Mr. Chair, I do have a ·8· · · ·few questions for this witness panel. ·9· · · ·Alberta Energy Regulator Secretariat Staff Questions 10· · · ·Ktunaxa Nation Council 11· ·Q· ·MR. LAMBRECHT:· · · · ·Good afternoon, panel.· My 12· · · ·name is Kirk Lambrecht.· I'm one of the counsel to the 13· · · ·Panel, and I have a few questions from the federal 14· · · ·staff that are supporting the work of the Panel. 15· · · · · · I might ask the Zoom host to pull up the written 16· · · ·submission of the Ktunaxa, which is CIAR 564, and I 17· · · ·will ask you to go to PDF· 25, please.· And it's the 18· · · ·paragraph after the second bullet.· So there's a bullet 19· · · ·with the heading "bison", and in the middle of the 20· · · ·paragraph after that, panel, the following appears -- 21· · · ·and I'm just going to read it out so that it's clear 22· · · ·for the record, because I would like to ask about this 23· · · ·sentence.· And the sentence is:· (as read) 24· · · · · · While bison are current ly extirpated and 25· · · · · · habitat in the area of the project is 26· · · · · · currently vacant, the return of Plains bison ·1· · · · · · and Ktunaxa-harvested bison in the project ·2· · · · · · area is planned and reasonably foreseeable. ·3· · · ·Panel members, are you able to see that passage on the ·4· · · ·screens that the Zoom host has displayed? ·5· ·A· ·DR. CANDLER:· · · · · ·Yes, we can. ·6· ·Q· ·All right. ·7· · · ·MR. LAMBRECHT:· · · · · ·Zoom Host, it's no longer ·8· · · ·necessary to keep that up on the screen.· I think you ·9· · · ·can take it down. 10· ·Q· ·MR. LAMBRECHT:· · · · ·Can I ask you, please, to 11· · · ·provide additional information about the return of the 12· · · ·bison to the project area and to include in that 13· · · ·information about where bison may have been 14· · · ·reintroduced, a matter also discussed in your 15· · · ·submissions but not quoted to you here this afternoon. 16· · · · · · In -- in -- in plain language, could you provide a 17· · · ·little more information to support the proposition that 18· · · ·the return of Plains bison in the project area is 19· · · ·planned and reasonably foreseeable? 20· ·A· ·DR. CANDLER:· · · · · ·I'll -- I'll provide a bit of 21· · · ·background on this one. 22· · · · · · So my understanding of the -- the -- the planned 23· · · ·reintroduction is limited.· I'm a cultural 24· · · ·anthropologist by background.· I'm not a biologist. 25· · · · · · My understanding Mr. Lambrecht, is there's sort of 26· · · ·two aspects to your question.· One was additional ·1· ·information regarding where the practice of bison ·2· ·harvesting may occur in the area; the other is around ·3· ·the restoration. ·4· · · · So based on the oral histories, we do know that -- ·5· ·that bison were abundant in the area of the project and ·6· ·that bison presence extended at least to Crowsnest ·7· ·Lake, which is a fair distance to the west of the ·8· ·project, at least into the -- the 1800s. ·9· · · · The bison restoration work is most advanced in the 10· ·national parks, is -- is my understanding, both at 11· ·Banff National Park and -- which is north of the 12· ·project, and south of the project at Waterton.· This 13· ·certainly raises the issue of connectivity between a 14· ·Banff population and a Waterton population, and the 15· ·project would be part of that.· So that's sort of 16· ·the -- the biological side.· It may be that Marlene or 17· ·others on the panel can provide a bit more information 18· ·on that. 19· · · · In terms of the reasonably foreseeable aspect of 20· ·that, there is current effort and, in some cases, quite 21· ·substantial effort from a number of Indigenous Nations 22· ·that has led to the signing of what's often called "the 23· ·buffalo treaty" or "the bison treaty", which the 24· ·Ktunaxa Nation is a part of, alongside the neighbours 25· ·on the Alberta side of the border.· And that treaty is 26· ·a sam -- is essentially the establishment of an ·1· · · ·Indigenous plan and commitment to see the restoration ·2· · · ·of -- of bison in portions of -- of historic range. ·3· · · · · · So for the Ktunaxa Nation, that would clearly ·4· · · ·focus on the project area, as this is -- is really one ·5· · · ·of the -- the main parts of -- of Ktunaxa territory ·6· · · ·where -- where that would be a possibility. ·7· · · · · · And I should turn to Marlene or others if there's ·8· · · ·additional information. ·9· ·A· ·MS. MACHMER:· · · · · ·I don't really have anything 10· · · ·to add to that, Craig.· You've pretty much covered it. 11· · · ·Thanks. 12· ·A· ·DR. CANDLER:· · · · · ·Yeah.· I would just add that 13· · · ·this is certainly with reference to a Northern Plains 14· · · ·bison population.· There's certainly additional work 15· · · ·elsewhere in Alberta, in Northern Alberta, the 16· · · ·Fort McMurray area, other places where -- where bison 17· · · ·restoration is occurring, but the -- the -- the -- 18· · · ·the -- the Plains areas is, my understanding, a 19· · · ·distinct example. 20· ·Q· ·All right.· Beyond the signature of the -- the buffalo 21· · · ·treaty, are you aware of any planning initiatives that 22· · · ·may be underway to return bison, as you have described 23· · · ·bison, to the project area? 24· ·A· ·My -- it depends on how "project area" is defined, I 25· · · ·think.· To the specific area immediately north of 26· · · ·Blairmore and Grassy Mountain, I'm -- I'm not aware of ·1· · · ·a specific land-use planning that has been undertaken. ·2· · · ·My understanding is that that -- there is specific ·3· · · ·planning that's been undertaken in the parks areas, and ·4· · · ·certainly connectivity is one of the long-range ·5· · · ·concerns of that.· It's -- it's -- we're -- we're ·6· · · ·getting beyond my expertise here, I think. ·7· ·Q· ·Okay.· Thank you, panel. ·8· · · · · · I have another question, and it relates to current ·9· · · ·use.· So if -- when -- when you examine the Ktunaxa 10· · · ·submissions -- and perhaps the Zoom host can pull up 11· · · ·CIAR 564.· And go to page 23. 12· · · · · · There's a map here, and it -- it -- it is a map 13· · · ·that -- entitled "Purported Ktunaxa Use Values in 14· · · ·Relation to Grassy Mountain Coal".· And certainly I see 15· · · ·Crowsnest Mountain identified there as well as an area 16· · · ·named as "Bellevue".· But I do not necessarily see 17· · · ·areas more proximate to the project footprint. 18· · · · · · The evidence of the Ktunaxa in their written 19· · · ·submission is that if we go to paragraph -- page 27 20· · · ·here, please.· And under the heading "Subsistence use", 21· · · ·there's an indication that use and occupancy by the 22· · · ·Ktunaxa indicates that citizens continue to exercise 23· · · ·harvesting rights in the Crowsnest Pass and surrounding 24· · · ·areas.· And then the report goes on to say that 25· · · ·additional work is likely to confirm that this extends 26· · · ·to the east of the project area. ·1· · · · · · So my question is:· Are you in a position, since ·2· · · ·this was filed, to provide any additional information ·3· · · ·to the Panel about Ktunaxa current use in the project ·4· · · ·area?· And by that, I would refer to, say, the local ·5· · · ·study area as used in Benga's EIA. ·6· ·A· ·I'll -- I'll -- I'll begin, and, again, I'll turn it ·7· · · ·over to my panel members to -- to support, if -- if ·8· · · ·needed. ·9· · · · · · So, Mr. Lambrecht, my understanding is there's 10· · · ·a -- there's a -- a couple of things that may be useful 11· · · ·to the Panel in this regard.· One is the issue of 12· · · ·current use.· The other is -- maybe it's useful to -- 13· · · ·to consider this in terms of two -- two words, 14· · · ·"current" and "use".· There is federal guidance 15· · · ·documents on the assessment of impact on current use of 16· · · ·lands and resources by Indigenous peoples.· Within that 17· · · ·guidance, "current" includes uses that -- that are -- 18· · · ·are, you know, ongoing and that make reference to the 19· · · ·past.· So, for example, oral historical or 20· · · ·commemorative uses of an area.· "Current" also includes 21· · · ·uses or practices that may currently not be possible 22· · · ·because of current conditions but are likely to be 23· · · ·re-established should conditions change. 24· · · · · · So in -- in taking that idea of "current", I -- I 25· · · ·think it would be correct to understand "current" to 26· · · ·include use of -- of the landscape for oral historical ·1· · · ·purposes and for teaching about harvesting and ·2· · · ·subsistence in an area, as well as "current" to include ·3· · · ·uses or practices in area that may be returned to ·4· · · ·should conditions change. ·5· · · · · · Now, this turns to the issue of "use".· Now, "use" ·6· · · ·includes both places, so the kinds of -- and if -- ·7· · · ·if -- if we turn back to the map that -- that you ·8· · · ·directed to us earlier. ·9· ·Q· ·That is page 23. 10· ·A· ·Thank you. 11· · · · · · If -- if you'll note the -- the title of Figure 1 12· · · ·is "Site-specific Ktunaxa Values in Relation to 13· · · ·Project".· So this is spatially precise information 14· · · ·that's been provided by Ktunaxa citizens through an 15· · · ·interview process.· It does not include things that are 16· · · ·not place-based or, in other words, not spatially 17· · · ·precise information. 18· · · · · · So going back to the issue of "use", the 19· · · ·practitioner guidance indicates that "use" includes 20· · · ·places but also resources or species that are relied 21· · · ·upon and practices.· And so "use" includes anyplace 22· · · ·where we've got specific places, specific resources, 23· · · ·or -- or -- or species, or specific practices that are 24· · · ·associated. 25· · · · · · A map only captures the spatially explicit ones, 26· · · ·and that's limited by a whole bunch of factors, ·1· · · ·including the -- the methods that were used, the number ·2· · · ·of people you were able to talk to, other factors in ·3· · · ·play.· So I don't think we would have additions to the ·4· · · ·site-specific data that's -- that's on here, but when ·5· · · ·we consider the non-site-specific information around ·6· · · ·species and resources, clean water, bison, these other ·7· · · ·things, that -- that brings additional kinds of use ·8· · · ·into the picture. ·9· · · · · · I hope that's useful and not too technical. 10· ·A· ·MS. KAPELL:· · · · · · I would like to just add to 11· · · ·that in -- when you asked about whether -- because the 12· · · ·submission was a few years ago and whether we would 13· · · ·have additions to this, I guess, as -- as Dr. Candler 14· · · ·said, there are limiting factors, including the people 15· · · ·that we interview.· And, you know, in terms of the 16· · · ·sheer amount of land and resource development 17· · · ·activities within Ktunaxa Amakis, we -- you know, we 18· · · ·have 1,500 Ktunaxa citizens within the territory, and 19· · · ·they only have so much time to spend sitting down with 20· · · ·us on these projects, and so it just -- it takes a lot 21· · · ·of time and effort to -- and you're pulling Ktunaxa 22· · · ·people away from using the land.· When you're trying to 23· · · ·interview them, you're pulling them away from their 24· · · ·jobs and their families and things like that.· And so 25· · · ·in terms of these types of studies, they -- they can 26· · · ·take a lot of time and effort.· And we try to, you ·1· · · ·know, not place as much burden on citizens in this type ·2· · · ·of thing as -- you know, instead, we prefer to ·3· · · ·encourage citizens to get out on the land and do ·4· · · ·their -- and do their thing. ·5· · · · · · And so I think just wanting to clarify too that, ·6· · · ·you know, I think it was a very small number of people ·7· · · ·that we interviewed in order to produce -- produce this ·8· · · ·particular map.· I think we could go out and interview, ·9· · · ·you know, several hundred more if we had time and 10· · · ·capacity and funding to do it.· We just -- you know, 11· · · ·we -- we want to make sure that we're getting the best 12· · · ·effort.· And I think that we felt that, you know, quite 13· · · ·frankly, the evidence and the -- as -- as Dr. Candler 14· · · ·said, the -- what -- what the evidence shows on a map 15· · · ·versus what it shows in terms of the -- the resources 16· · · ·out there are quite different, and we felt that it was 17· · · ·strong enough to not have to continue.· Thank you. 18· ·Q· ·All right.· Thank you, panel. 19· · · · · · I do not have any further questions for you, and I 20· · · ·thank you for your patience in responding to my 21· · · ·questions and for your evidence and participation in 22· · · ·the Joint Review Panel process.· Thank you very much. 23· ·A· ·MS. MACHMER:· · · · · ·Thank you. 24· · · ·THE CHAIR:· · · · · · · ·Thank you, Mr. Lambrecht. 25· · · · · · Mr. Matthews, any questions? 26· · · ·MR. MATTHEWS:· · · · · · Yes. ·1· · · ·Alberta Energy Regulator Panel Questions Ktunaxa Nation ·2· · · ·Council ·3· ·Q· ·MR. MATTHEWS:· · · · · First of all, thank you for ·4· · · ·sharing your knowledge and your insights.· I think it's ·5· · · ·very helpful. ·6· · · · · · I just wanted to ask you a question, Mr. Candler. ·7· · · ·You raised the -- raised one of the objectives of the ·8· · · ·council is to establish relationships and to have ·9· · · ·control, I guess, over -- or have stewardship 10· · · ·opportunities in your territory. 11· · · · · · And I just wanted to ask a couple of questions 12· · · ·about the protocols of the Ktunaxa and with the other 13· · · ·Indigenous groups in the area, particularly, of course, 14· · · ·across that border with BC and Alberta. 15· · · · · · But does the bison treaty -- does the scope of 16· · · ·that treaty extend down to the project area, or is it 17· · · ·just restricted to the Northern Plains? 18· ·A· ·MS. KAPELL:· · · · · · It's my understanding the 19· · · ·bison treaty extends south into the United States, as 20· · · ·it has been signed by (OTHER LANGUAGE SPOKEN) 21· · · ·communities in Montana and in Idaho, as well as, I 22· · · ·believe, Blackfoot communities in Montana.· So it does 23· · · ·extend south along the Eastern Slopes of the Rocky 24· · · ·Mountains. 25· ·Q· ·And does the treaty itself imply a joint stewardship 26· · · ·beyond just bison? ·1· ·A· ·No, the treaty is focused solely on bison ·2· · · ·reintroduction. ·3· ·Q· ·Okay.· Thanks. ·4· · · · · · And then I recall an 1895 agreement that was ·5· · · ·struck -- or that was negotiated or struck between the ·6· · · ·Ktunaxa, I think, and the Shuswap and, I believe, the ·7· · · ·Stoney Nakoda.· Is that -- does that meet your ·8· · · ·objective of joint stewardship? ·9· ·A· ·I think we're going to need a minute. 10· ·Q· ·Okay.· If you wish, I think it's -- it's CIAR 543. 11· ·A· ·M-hm. 12· ·Q· ·It might be difficult to read.· I'm not sure. I 13· · · ·can't -- it was -- it's in pen, I believe, or pencil. 14· ·A· ·Yeah, I have a couple copies of it, so I know it's very 15· · · ·hard to read and you have to go right in close.· But, 16· · · ·yeah, thank you. 17· · · ·MR. MATTHEWS:· · · · · · Could we bring that up, 18· · · ·please? 19· · · ·MR. HOWARD:· · · · · · · So just to be clear, I believe 20· · · ·we need a moment to caucus before we answer this 21· · · ·question while the document's being brought up. 22· · · ·MR. MATTHEWS:· · · · · · It might be Appendix 1, I 23· · · ·believe, Zoom Operator. 24· · · ·THE CHAIR:· · · · · · · ·Just for clarity, this is the 25· · · ·Shuswap submission, so it might be more appropriate to 26· · · ·use CIAR 564, and it would be PDF· 32, I think. ·1· · · ·MR. MATTHEWS:· · · · · · Okay.· Thank you, ·2· · · ·Mr. Chairman. ·3· · · · · · Probably scroll down. ·4· ·Q· ·MR. MATTHEWS:· · · · · I'm only bringing this up as ·5· · · ·an example of -- I just wanted to get a confirmation ·6· · · ·that this agreement confirms your objective to have a ·7· · · ·joint stewardship in the vicinity of the -- of the ·8· · · ·project. ·9· ·A· ·MS. KAPELL:· · · · · · Okay.· Thank you very much. 10· · · · · · Yeah.· It's -- it's our opinion that the -- the 11· · · ·historical treaty does not meet stewardship objectives 12· · · ·or collaborative stewardship objectives for this 13· · · ·project area.· I feel that there could be relationship 14· · · ·building moving forward that speak to traditional or 15· · · ·historic protocols that may not be in the written 16· · · ·record but may be part of -- part of Ktunaxa's oral 17· · · ·history about the relationships that they've had well 18· · · ·prior to colonization with their neighbours, and that 19· · · ·those -- those types of protocols would be the 20· · · ·foundation for building collaborative stewardship 21· · · ·objectives with neighbouring First Nations moving 22· · · ·forward in the project area. 23· ·Q· ·Okay.· Thank you.· That -- that helps. 24· · · · · · I think that's all I have to ask.· Thanks again 25· · · ·for your presentations. 26· · · ·THE CHAIR:· · · · · · · ·Okay.· Thank you. ·1· · · · · · Mr. O'Gorman, any questions? ·2· · · ·MR. O'GORMAN:· · · · · · Thank you, Mr. Chair. ·3· ·Q· ·MR. O'GORMAN:· · · · · Thank you, panel.· I was ·4· · · ·debating whether I needed to ask you, Mr. Candler -- I ·5· · · ·think that I will.· My friend Mr. Lambrecht sort of ·6· · · ·captured some of my question I wanted to ask. ·7· · · · · · But I wanted to ask you, and you -- you spoke to ·8· · · ·it in your direct evidence, and Mr. Lambrecht asked you ·9· · · ·about current use and your interpretation of current 10· · · ·use.· And I guess I want to ask you to take one more 11· · · ·shot, please, at explaining -- making a little more 12· · · ·clarity for us on your stance. 13· · · · · · There's an obvious sense of current use of people 14· · · ·are out on the land harvesting, for example.· You added 15· · · ·a few extra senses of how we should think about current 16· · · ·use, and I understood what you answered to 17· · · ·Mr. Lambrecht.· One of the things that you said to him 18· · · ·was:· Use of the landscape for oral historical purposes 19· · · ·and teaching.· I wrote that down. 20· · · · · · So, I mean, can you expand on that aspect of it a 21· · · ·little bit more?· I mean, and -- and, you know, make it 22· · · ·a bit clear on -- is the idea that current use in that 23· · · ·sense -- is there a distinction between taking young 24· · · ·people out in the project area, for example, to 25· · · ·undertake teaching and passing on oral traditions, or 26· · · ·if you are at home, you know, on the other side of the ·1· · · ·Rockies and still using your oral traditions about ·2· · · ·those places, is that also current use?· Can you expand ·3· · · ·on that aspect of it a little bit, please? ·4· ·A· ·DR. CANDLER:· · · · · ·Sure.· And I -- I -- I'll -- ·5· · · ·I'll say a few words, and then I -- I might turn it ·6· · · ·over to Ray Warden or Nicole Kapell to say a few more. ·7· · · · · · So from personal experience, being in the project ·8· · · ·area with Ktunaxa citizens and Ktunaxa knowledge ·9· · · ·holders, some of them elders, some of them young 10· · · ·people, it's very clear that when Ktunaxa people travel 11· · · ·through this landscape -- and I'm speaking specifically 12· · · ·the landscape around Blairmore, Frank, Turtle 13· · · ·Mountain -- there is very particular knowledge that is 14· · · ·passed on about the place; very particular knowledge 15· · · ·tied to raven's home, which is visible; very particular 16· · · ·knowledge about the history of the area, the Frank 17· · · ·Slide; other kinds of oral histories, whether it's oral 18· · · ·histories of the bison harvesting or oral histories of 19· · · ·relationships with -- with Piikani and -- and other 20· · · ·communities nearby that are brought up by the landscape 21· · · ·itself, and -- and this is -- this is this 22· · · ·commemorative value of the landscape is irreplaceable. 23· · · ·It's absolutely specific to particular locations, and 24· · · ·you can't go to a different part of the territory and 25· · · ·have a similar set of oral histories and a similar set 26· · · ·of -- "mnemonics", they're often called.· So the -- the ·1· ·moral value or the -- the remembrance value of ·2· ·particular places and features on the landscape that ·3· ·are raised. ·4· · · · From the Ktunaxa perspective, there's particular ·5· ·events in the creation stories that happen in ·6· ·particular locations.· Some of those are in this very ·7· ·valley, and that's the kind of thing that is -- is ·8· ·really irreplaceable.· There's some Indigenous ·9· ·knowledge that may be general and applied at different 10· ·landscapes.· There's also Indigenous knowledge that is 11· ·extremely place-based and very specific to particular 12· ·landscapes.· Now, that's just the -- I'd say the -- the 13· ·intangible sort of intellectual resource that's 14· ·involved. 15· · · · There's also the, I'd say, esthetic or emotional, 16· ·identity-focused-type responses to particular parts of 17· ·the landscape.· So for particular Ktunaxa citizens, 18· ·travelling through this area is -- is -- is a way of 19· ·remembering and connecting to the landscape, and that 20· ·ability to remember and connect is absolutely tied to 21· ·the very identity of being Ktunaxa -- of being in a 22· ·relationship with these particular places.· I think 23· ·Ray, in his opening comments today, highlighted this 24· ·idea of identity and being tied to it. 25· · · · The third thing I would raise is the stewardship 26· ·or governance aspect of -- of -- of that, so that -- ·1· · · ·these are all examples of current use.· So a Ktunaxa ·2· · · ·person in this area, what are they -- what are they ·3· · · ·doing when they're using this place? ·4· · · · · · From the governance and stewardship perspective ·5· · · ·that's -- that's what we're calling "use" in the ·6· · · ·legislation, might be expressed, or is expressed as a ·7· · · ·stewardship obligation, a responsibility to take care ·8· · · ·of the place, to make sure that future Ktunaxa ·9· · · ·generations are able to understand it, have a 10· · · ·relationship to it, be connected to it, and that's 11· · · ·certainly when we were talking about water-quality 12· · · ·parameters or periphyton or other kinds of things. 13· · · ·We're getting a sense of Ktunaxa use that is actually 14· · · ·very much tied to stewardship and governance practice, 15· · · ·not the hunting or harvesting of periphyton, for 16· · · ·example. 17· ·Q· ·That's great. 18· · · · · · Mr. Warden, are you going to add anything? 19· ·A· ·MR. WARDEN:· · · · · · Yes.· The -- if I understood 20· · · ·the question correct -- correctly, it's about could we 21· · · ·have a similar experience on the side of the mountains 22· · · ·as opposed to the other side of the mountains, and my 23· · · ·answer to that is being there and experiencing our 24· · · ·surroundings, to be able to breathe in, to be able to 25· · · ·drink the water, to be able to touch things, to be able 26· · · ·to -- to look at places like raven's house, what it ·1· ·means to us, our oral history -- with our oral history, ·2· ·that's where our laws come from throughout our home -- ·3· ·whole homelands.· The features like raven's house and ·4· ·other places.· There's a real deep, deep story that ·5· ·goes with that where [sic] our creation. ·6· · · · But it also talks about, within it, there's morals ·7· ·of the story or laws that come out of that, and how we ·8· ·treat that area, how we treat others.· And that, to me, ·9· ·is a difference than seeing a picture or reading about 10· ·it in a book, is being there to take it all in.· And 11· ·every time I see places that are landmarks coming from 12· ·our oral history and knowing the -- the meaning and the 13· ·deep iceberg, it reminds me of who I am and what my 14· ·purpose in life is.· That experience of being there is 15· ·critical. 16· · · · And that's what we want for our -- it was 17· ·interrupted for a period of time during residential 18· ·schools and other things, and we want to get back to 19· ·transferring that knowledge back to our younger people, 20· ·so they -- so they know who they are. 21· · · · We had a culture camp in the Elk Valley one year, 22· ·two years ago, culture camp, and a conservation officer 23· ·arrived, and he had a dead grizzly bear in the box of 24· ·his truck.· And for us to be able to experience that, 25· ·and our young people to experience that, and to -- with 26· ·our culture camp to offer the conservation officer food ·1· · · ·and to say a prayer for the grizzly bear.· And it was ·2· · · ·given to us, and now we have it mounted as a hide in ·3· · · ·our building because -- out of respect for that animal. ·4· · · ·But being out there and experiencing and taking in a ·5· · · ·certain event there is what is needed for our current ·6· · · ·and future generations.· Thank you. ·7· ·Q· ·That's really great.· I'll say -- well, all of you or ·8· · · ·thank you to you both for sharing that knowledge today, ·9· · · ·and I have no other questions. 10· · · ·THE CHAIR:· · · · · · · ·Thank you, Mr. O'Gorman. 11· · · · · · Panel, I have no further questions for you.· So 12· · · ·before releasing you, I'll just turn to Mr. Howard. 13· · · · · · Mr. Howard, any re-direct examination you wanted 14· · · ·to do? 15· · · ·MR. HOWARD:· · · · · · · Thank you, Panel Chair. I 16· · · ·have no re-direct. 17· · · ·THE CHAIR:· · · · · · · ·Okay.· Well, with that, thank 18· · · ·you very much to the Ktunaxa panel for participating in 19· · · ·this proceeding, for your written submissions, your 20· · · ·knowledge today.· Greatly assists the Panel in 21· · · ·decisions we have to make.· So thank you. 22· · · ·(WITNESSES STAND DOWN) 23· · · ·THE CHAIR:· · · · · · · ·Next up is the Shuswap Indian 24· · · ·Band. 25· · · · · · So is Chief Barb Cote here? 26· · · ·CHIEF COTE:· · · · · · · Good afternoon.· Yes, I'm ·1· ·here. ·2· ·THE CHAIR:· · · · · · · ·Hi, Chief Cote.· I just wanted ·3· ·to do a quick check-in.· I'm thinking about a break, ·4· ·but I want to do a bit of a time check with you.· You ·5· ·had previously indicated, you know, kind of 40 minutes ·6· ·for your presentation, and obviously you can take more ·7· ·time if you need, but I'm just trying to get a sense of ·8· ·how long you think you'll be, given where we are in the ·9· ·day.· I'm trying to decide whether to finish with you 10· ·today or carry over to tomorrow. 11· ·CHIEF COTE:· · · · · · · I think that probably it would 12· ·be best to carry on over to tomorrow and everybody has 13· ·a fresh start.· I think we've all had a long day today 14· ·sitting here, so I -- I think it would be better for us 15· ·to start with us tomorrow morning, if that's okay. 16· ·THE CHAIR:· · · · · · · ·Okay.· Yeah.· You would be the 17· ·only person up tomorrow.· I think we would conclude 18· ·with you.· But if that's your preference, I'm certainly 19· ·willing to go that route. 20· ·CHIEF COTE:· · · · · · · Thank you. 21· ·THE CHAIR:· · · · · · · ·Okay.· So having said that, 22· ·then, just a few preliminary matters before we end for 23· ·the day. 24· · · · The Panel secretariat did get a request from 25· ·Michael Niven, who's the counsel for MD of Ranchland. 26· ·He indicated that their vegetation expert, Dr. Osko, ·1· ·has an urgent family matter he needs to attend to on ·2· ·Thursday, which is when we were planning to do the ·3· ·vegetation session.· Mr. Niven's request was whether we ·4· ·could change the order of cross-examination for ·5· ·vegetation topics.· The MD of Ranchland is scheduled to ·6· ·go first.· He would prefer to go last out of the ·7· ·interveners, which would probably move his cross to ·8· ·Friday. ·9· · · · So I'm just wondering if any of the other 10· ·participants have any concerns about that? 11· · · · Okay.· Hearing none, we'll let Mr. Niven know that 12· ·that's an acceptable arrangement.· The Panel has no 13· ·concerns about it. 14· · · · Any other preliminary -- or, sorry, any other 15· ·final matters today before we break? 16· · · · Hearing none, we'll start tomorrow morning at 9:00 17· ·with the Shuswap Indian Band at 9:00.· And everyone 18· ·have a good evening.· Thank you. 19· ·______20· ·PROCEEDINGS ADJOURNED UNTIL 9:00 AM, NOVEMBER 10, 2020 21· ·______22 23 24 25 26 ·1· ·CERTIFICATE OF TRANSCRIPT: ·2 ·3· · · · I, Angela Porco, certify that the foregoing pages ·4· ·are a complete and accurate transcript of the ·5· ·proceedings, taken down by me in shorthand and ·6· ·transcribed from my shorthand notes to the best of my ·7· ·skill and ability. ·8· · · · Dated at the City of Calgary, Province of Alberta, ·9· ·this 9th day of November 2020. 10

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