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20. Aboriginal Rights and Interests Effects

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20. Aboriginal Rights and Interests Effects 20. ASSESSMENT OF ABORIGINAL AND TREATY RIGHTS AND RELATED INTERESTS 20.1 INTRODUCTION This chapter assesses potential adverse effects on Aboriginal and Treaty rights and related interests which may arise from the Project during construction, operations, decommissioning/reclamation, and post-closure. Underground mining activities have the potential to adversely affect Aboriginal and Treaty rights by interfering with Aboriginal groups’ ability to engage in practices, customs, and traditions that are integral to their distinctive cultures, and/or by interfering with the exercise of rights expressly recognized in a treaty. Interference with Aboriginal and Treaty rights is generally indirect, resulting from changes to environmental conditions that are necessary for the continued exercise of Aboriginal and Treaty rights. The assessment is based on information derived from the Proponent’s engagement with potentially- affected Aboriginal groups, environmental assessments carried out elsewhere in the Application/EIS, and the review of secondary data. Wherever possible, the assessment addresses potential effects on Aboriginal and treaty rights and related interests as understood from the perspective of the Aboriginal groups in question. Baseline reports informing this assessment are appended to the Application/EIS and include: Ethnographic Overview and Traditional Knowledge and Use Desk-Based Research Report (Appendix 17-A) and Saulteau First Nations Knowledge and Use Study for HD Mining Murray River Coal Project (Appendix 17-B). 20.2 REGULATORY AND POLICY FRAMEWORK The Crown has a legal duty to consult with and, where appropriate, accommodate Aboriginal interests when it contemplates a conduct that might adversely impact the potential or established Aboriginal or Treaty right. The Crown delegated procedural aspects of this duty, with respect to the Project, to the Proponent through the Section 11 Order and EIS Guidelines. According to Section 10.1 of the Section 11 Order, “for the purpose of developing the Application, the Proponent must consult with the First Nations with respect to the potential effects of the proposed Project on their Treaty 8 rights.” The Section 11 Order defines Treaty 8 rights in the following terms: “’Treaty 8 Rights’ are considered by the court to be “proven” rights for the purposes of section 35(1) of the Constitution Act, 1982, including the rights to hunt, fish and trap and the ancillary activities associated with carrying out these rights throughout the tract of land included in the treaty.” According to Section 3.1.2 of the Order, the scope of the Assessment/EIS includes consideration of “potential adverse effects on the First Nations’ Treaty 8 rights and other interests, and to the extent appropriate, ways to avoid, mitigate or otherwise accommodate such potential adverse effects and to properly uphold the Crown’s obligations with respect to treaty rights.” Section 10.2 of the EIS Guidelines provides the following requirements: HD MINING INTERNATIONAL LTD. Murray River Coal Project | 20-1 APPLICATION FOR AN ENVIRONMENTAL ASSESSMENT CERTIFICATE / ENVIRONMENTAL IMPACT STATEMENT The EIS will describe, from the perspective of the proponent, the potential adverse impacts of the project on the ability of Aboriginal peoples to exercise the potential or established Aboriginal and Treaty rights and related interests identified in Section 9.2. As part of this description, this section will summarize: • Potential adverse impacts (on potential or established Aboriginal and Treaty rights and related interests) that were identified through the environmental effects described in sections 10.1.2 and 10.1.3; • Specific issues and concerns raised by Aboriginal groups in relation to the potential adverse impacts of the project on potential or established Aboriginal and Treaty rights and related interests; • VCs suggested for inclusion in the EIS, whether or not those factors were included, and the rationale for any exclusions; • Where and how Aboriginal traditional knowledge or other Aboriginal views were incorporated into the consideration of environmental effects and potential adverse impacts on potential or established Aboriginal and Treaty rights and related interests; and • Efforts undertaken to engage with Aboriginal groups as part of collecting the information identified above. The EIS Guidelines also require the following: • The assessment of the potential adverse impacts of each of the project components and physical activities, in all phases, will be based on a comparison of the exercise of the identified rights between the predicted future conditions with the project and the predicted future conditions without the project. This assessment was informed a number of policy guidance documents developed by the Crown, including: the Guide to Involving Proponents when Consulting First Nations in the Environmental Assessment Process (BC), Updated Procedures For Meeting Legal Obligations When Consulting First Nations (BC), Guide to Involving Proponents When Consulting First Nations (BC), Aboriginal Consultation and Accommodation - Updated Guidelines for Federal Officials to Fulfill the Duty to Consult - March 2011 (Canada). 20.3 OVERVIEW OF ABORIGINAL GROUPS CONSIDERED IN THE ASSESSMENT The Project is located within the boundaries of Treaty 8 (Figure 20.3-1). In November, 2012, the BC EAO provided the West Moberly First Nations (WMFN), Saulteau First Nations (SFN), Halfway River First Nation (HRFN), Fort Nelson First Nation (FNFN), Prophet River First Nation (PRFN), Doig River First Nation (DRFN), Blueberry River First Nations (BRFN) and the McLeod Lake Indian Band (MLIB) its understanding of Treaty 8, its initial review of the potential impacts from the proposed Project on treaty rights and its proposed consultation approach with those Treaty 8 First Nations. The BC EAO determined that the proposed Project area lies in (or is in the vicinity of) the traditional use territories of the WMFN, SFN, and MLIB. On this basis, the Section 11 Order issued by the BC EAO on December 14, 2012 defined “First Nations” to mean the WMFN, SFN and MLIB. 20-2 | Murray River Coal Project ERM Rescan | PROJ #0194106 | REV D.1 | OCTOBER 2014 Figure 20.3-1 Treaty 8 Boundaries 400000 500000 600000 700000 800000 900000 Fort Nelson !. !. B r i 97 Fort Nelson t ¤£ i s A h 6500000 First Nation 6500000 l b C e o r ± t l a u m b Prophet River i !. a First Nation ¤£97 6400000 6400000 Blueberry River First Nations Doig River Halfway River First Nation 6300000 !. 6300000 First Nation !. !. Fort St. John Saulteau Hudson's r !. Pe e First Nations Hope !. ac e Ri v Williston ¤£29 Taylor 681 Lake !. ¤£97 ¤£ Sucker Creek West Moberly First Nation 6200000 !. 6200000 !. M First Nations ¤£97 !.!. Pouce Rive !. u Coupe r r !. e r ¤£39 in a Dawson P y R Creek ¤£59 29 i !. Mackenzie ¤£ v !. e Kelly r !. ¤£97 Lake Tumbler !. P Ridge McLeod Lake a ^` Horse Lake r !. s First Nation 6100000 n 52 6100000 ip ¤£ McLeod Lake R ive Indian Band r Stuart Fort St. James Lake !. Fraser Lake ¤£27 !. Vanderhoof 6000000 !. 6000000 Prince George !. ^` Project Location !. Community McBride !. First Nation !. Treaty 8 Boundary* Wells 5900000 !. 5900000 (source: Aboriginal AffairsQuesnel !. Valemount and Northern Development !. Canada) Highway *for illustrative purposes only Horsefly 1:3,750,000 !. 0 50 100 5800000 Williams Lake 5800000 Alexis Creek !. !. Kilometres Contains information licensed under the Open Government Licence – British Columbia and Canada. Version# T0.13 Source: Esri, DigitalGlobe, GeoEye, i-cubed, Earthstar Geographics, CNES/Airbus DS, USDA, USGS, AEX, July 29, 2014 Getmapping, Aerogrid, IGN, IGP, swisstopo, and the GIS User Community Projection: NAD 1983 UTM Zone 10N 400000 500000 600000 700000 800000 900000 HD MINING INTERNATIONAL LTD – Murray River Coal Project Proj # 0194106-0005 | GIS # MUR-16-034 APPLICATION FOR AN ENVIRONMENTAL ASSESSMENT CERTIFICATE / ENVIRONMENTAL IMPACT STATEMENT On July 30, 2013, the CEA Agency issued EIS Guidelines for the Project. Section 9.2 of the EIS Guidelines identifies Aboriginal groups whose potential or established Aboriginal rights and Treaty rights and related interests may be adversely affected by the Project. These groups include: BRFN, MLIB, SFN, WMFN, and Horse Lake First Nation (HLFN). Section 9.2 identifies additional Aboriginal groups whose interests may be affected by the Project. These Aboriginal groups include, DRFN, FNFN, Halfway River First Nation (HRFN), Prophet River First Nation (PRFN), Kelly Lake Métis Settlement Society (KLMSS), and Métis Nation British Columbia (MNBC). Subsequent to the issuance of the EIS Guidelines, the CEA Agency brought in Sucker Creek First Nation at the low end of the consultation spectrum based on the First Nation’s assertion that their Treaty 8 rights and related interests may be affected by the Project. On July 31, 2013, the CEA Agency presented Aboriginal groups with information about the potential adverse effects of the Project on Aboriginal groups’ Aboriginal and Treaty rights. On the basis of the Project’s location within asserted traditional territories of BRFN, the MLIB, SFN, WMFN, and HLFN and potential Project interactions with these groups’ Treaty rights to hunt, trap and fish, the CEA Agency determined on a preliminary basis that the depth of the duty to consult with these groups is at the high end of the consultation spectrum. On the basis of the Project’s location outside of other Treaty 8 First Nations and Metis’ asserted traditional territories, the CEA Agency
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