Environmental Assessment – Joint Review Panel
IN THE MATTER OF
FRONTIER OIL SANDS PROJECT
Teck Resources Limited CEAA Reference No. 65505
SUBMISSIONS ON IMPACTS OF THE FRONTIER OIL SANDS PROJECT ON WOOD BUFFALO NATIONAL PARK
Filed by:
Canadian Parks and Wilderness Society (CPAWS)
CPAWS Northern Alberta Chapter P.O. Box 52031 Edmonton, AB T6G 2T5
Tel.: (780) 328-3780 Email: [email protected]
PART I: INTRODUCTION
The Canadian Parks and Wilderness Society is a nationwide charity dedicated to the protection and sustainability of Canada’s public land and water, and ensuring that parks are managed to protect the nature within them. CPAWS Northern Alberta’s role as an organization is to provide landscape-scale, science-based support and advice for the conservation and protection of Alberta’s wilderness. CPAWS Northern Alberta has championed the protection of Alberta’s diverse natural heritage since its establishment in 1968, and regularly collaborates with government, industry, and Indigenous communities on these issues. CPAWS Northern Alberta also strives to educate and bring awareness to Alberta’s residents and visitors about the importance of protecting Alberta’s wilderness.
These are the submissions of CPAWS Northern Alberta ("CPAWS") to the Joint Review Panel ("JRP") in relation to the impacts of the Frontier Oil Sands Project (the "Project") on Wood Buffalo National Park ("Park" or “WBNP”). By separate filing on behalf of CPAWS, the Pacific Centre for Environmental Law and Litigation has filed evidence and submissions in relation to the greenhouse gas emissions associated with the Project.
In relation to the submissions and evidence contained herein regarding the impacts of the Project on the Park, CPAWS has retained Mr. Shaun Fluker and Ms. Christine Laing as legal counsel, both with the University of Calgary Public Interest Law Clinic. Their contact information is as follows:
University of Calgary Public Interest Law Clinic Room 3310, Murray Fraser Hall 2500 University Drive NW Calgary, Alberta T2N 1N4
Shaun Fluker
Christine Laing
In relation to the submissions and evidence filed in relation to the greenhouse gas emissions associated with the Project, CPAWS has retained the Pacific Centre for Environmental Law and Litigation Law Corporation. Their contact information is as follows:
Pacific Centre for Environmental Law and Litigation Law Corporation Suite 16 Shoal Point 21 Dallas Road Victoria, BC V8V 4Z9
Chris Tollefson
Anthony Ho
We request that the JRP include and name each of these individuals as counsel for CPAWS on the contact and distribution list for the Project.
Based on the submissions that follow, CPAWS submits that this Project, if approved, would significantly negatively impact the ecological integrity and outstanding universal values (OUVs) of the Park. The Park’s OUVs are the characteristics for which it was designated a World Heritage Site in 1983.
In support of these submissions, CPAWS adduces two expert opinions: 1. Expert Opinion #1 of Dr. John Wilmshurst, dated August 28, 2018;1 and, 2. Expert Opinion #2 of Dr. Colleen Cassady St. Clair, dated August 29, 2018.2
In Part II, CPAWS reviews the international importance of Wood Buffalo National Park, Canada’s mandate to protect its ecological integrity, and UNESCO’s review of the Park to determine if it is a World Heritage Site in danger. In Part III, CPAWS provides an assessment of the impacts of the Project on the Park based on the evidence provided in the expert opinions of Dr. Wilmshurst and Dr. St. Clair.
1 Expert Opinion #1 of Dr. John Wilmshurst, dated August 28, 2018 (“Wilmshurst Opinion”). 2 Expert Opinion #2 of Dr. Colleen Cassady St. Clair, dated August 29, 2018 (“St. Clair Opinion”).
PART II: NATIONAL AND INTERNATIONAL IMPORTANCE OF WOOD BUFFALO NATIONAL PARK History and International Importance
The Park was established in 1922 by Canada as an effort to protect the habitat of Canada's remaining free-roaming bison populations, which, in the late 19th and early 20th centuries, had been decimated by over hunting and habitat loss. At 44,807 square kilometres in size, the Park is the largest national park in Canada and one of the largest in the world. The Park protects many naturally important landscape features, such as the Peace-Athabasca Delta, unique salt plains, nesting grounds for American Pelicans and endangered Whooping Cranes, as well as habitat for at-risk species such as Peregrine Falcons and Wood Bison.3
The Park has been deemed irreplaceable to the global community. Canada made commitments to protect and maintain WBNP under the Convention Concerning the Protection of the World Cultural and Natural Heritage4 (the “Convention”). The Government of Canada chose to nominate WBNP for consideration as a World Heritage Site. To be accepted, a site had to meet the criteria for Outstanding Universal Value in the operational guidelines of the Convention.5 In 1983, the Park was accepted as a UNESCO World Heritage Site under the Convention based on three of four possible criteria for natural world heritage:
1. Criteria (vii), to contain superlative natural phenomena or areas of exceptional natural beauty and aesthetic importance;
2. Criteria (ix), to be outstanding examples representing significant on-going ecological and biological processes in the evolution and development of terrestrial, fresh water, coastal and marine ecosystems and communities of plants and animals; and
3. Criteria (x), to contain the most important and significant natural habitats for in-situ conservation of biological diversity, including those containing threatened species of outstanding universal value from the point of view of science or conservation.
Elements of WBNP found to have Outstanding Universal Value that we discuss here are:
• The Peace-Athabasca Delta, the largest inland freshwater delta in the world; • Great concentrations of migratory wildlife of worldwide importance;
3 Struzik, Ed, 1992, "The Rise and Fall of Wood Buffalo National Park," Borealis (10): 10-25 and http://www.pc.gc.ca/eng/pn- np/nt/woodbuffalo/natcul.aspx 4 UN Educational, Scientific and Cultural Organisation (UNESCO), Convention Concerning the Protection of the World Cultural and Natural Heritage, 16 November 1972
• The last remaining breeding habitat and nesting site of the endangered Whooping Crane; • The last remaining place on earth where Wolves and Bison interact in a natural predator- prey dynamic.
The Delta within the Park, and the whooping crane nesting area, have also been designated a Ramsar Site in accordance with the Convention on Wetlands of International Importance especially as waterfowl habitat (the “Ramsar Convention”).6 The Ramsar Site designation was put in place in 1982 in recognition of the Delta being “[o]ne of the most important nesting, resting and feeding areas for numerous species in North America. Up to 400,000 birds occur during spring migration, and more than one million occur in the fall. The delta meadows provide grazing for several hundred free-roaming bison, one of 44 other mammals recorded.”7
The Park’s status as a World Heritage Site recognizes the Park’s internationally important ecological value, and is a source of pride to Canadians. However, the Park’s ecological values are being eroded by continued hydro-electric developments along the Peace River in both British Columbia and Alberta, and by oil sands activities along the Athabasca River in Alberta. There is evidence that the Delta is drying up, leading to changes in Wood Bison behaviour, impacts on fish habitat availability within the Park, and interference with local cultural practices such as fishing.
The Teck Frontier Oil Sands Mine Project is an open pit oil sands mine less than the 30km from the southern border of the Park. If approved, this mine will be the largest of its kind, produce 260,000 barrels per day of bitumen for approximately 41 years, and will add 6000 hectares of tailings areas to the region.8 The Project will be the closest oil sands development of its kind to WBNP, within a watershed sub-basin that drains directly into Lake Claire from outside WBNP, and the Project will be within the remaining intact forest and ungulate habitat that is contiguous with the Park. Canada’s Management of Wood Buffalo National Park: A Legislated Mandate to Protect Ecological Integrity
Canada's national parks are governed by several pieces of federal legislation, primarily the Canada National Parks Act (the “CNPA”)9 and its regulations and the Parks Canada Agency Act.10
6 UNESCO, Ramsar, Iran 2.2.1971 as amended by the Protocol of 3.12.1982 and the Amendments of 28.5.1987. 7 Ramsar Sites Information Service. Peace-Athabasca Delta. Site 241. https://rsis.ramsar.org/ris/241
9 Canada National Parks Act (S.C. 2000, c.32) http://laws-lois.justice.gc.ca/eng/acts/N-14.01/ 10 Parks Canada Agency Act. http://laws-lois.justice.gc.ca/eng/acts/P-0.4/FullText.html
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Canada's national parks are dedicated to the Canadian public in section 4(1) of the CNPA:
4 (1) The national parks of Canada are hereby dedicated to the people of Canada for their benefit, education and enjoyment, subject to this Act and the regulations, and the parks shall be maintained and made use of so as to leave them unimpaired for the enjoyment of future generations.
Section 8(2) of the CNPA further states:
Ecological integrity (2) Maintenance or restoration of ecological integrity, through the protection of natural resources and natural processes, shall be the first priority of the Minister when considering all aspects of the management of parks.
The dedication (section 4(1)) and ecological integrity clause (section 8(2)) make it clear that Canada has an obligation to manage Canada’s national parks so that the natural values they are meant to represent, as part of Canada’s representative national parks system, remain healthy and intact.
Management authority of Canada's national parks is delegated from the federal Minister of Environment and Climate Change to a federal agency, the Parks Canada Agency (“Parks Canada”) through the Parks Canada Agency Act. The stated objective of Parks Canada is: “[t]o protect for all time representative natural areas of Canadian significance in a system of national parks, to encourage public understanding, appreciation and enjoyment of this natural heritage so as to leave it unimpaired for future generations.”11
The preamble to the Parks Canada Agency Act lists the purposes of the act as “to carry out Canada’s international obligations and agreements to protect, conserve and present” natural and cultural heritage in the parks, and “to maintain or restore the ecological integrity of national parks”.12 In addition, Parks Canada’s own “Guiding Principles and Operational Policies” clearly directs them to engage in environmental assessment processes of proposals that could affect the Park and to work with partners outside the Park to ensure the Parks’ ecological integrity is not impaired.13 In May 2018, the Minister of Environment and Climate Change again re-stated that ecological integrity is the number one priority of the National Parks and that development that can impact ecosystem health of Parks must be limited14. These guidelines and recent statements from the Minister emphasize the responsibility of the federal government to ensure that
11 Parks Canada Agency Act. http://laws-lois.justice.gc.ca/eng/acts/P-0.4/FullText.html 12 Ibid. 13 Parks Canada Guiding Principles and Operational Policies https://www.pc.gc.ca/en/docs/pc/poli/princip/sec1/part1d#a5 14 Ecological integrity to be top priority for Parks Canada: environment minister. https://www.cbc.ca/news/politics/mckenna- national-parks-consultation-1.4652371 6
development occurring outside the Park does not negatively impact the environment within the Park. UNESCO review of Wood Buffalo National Park’s status as a World Heritage Site
Article 11 of the Convention requires the World Heritage Committee (“the Committee”) to maintain a list of ‘World Heritage in Danger’ “The list may include only such property forming part of the cultural and natural heritage as is threatened by serious and specific dangers, such as the threat of disappearance caused by accelerated deterioration, large- scale public or private projects…”15 The World Heritage Committee has explicitly stated that mineral and oil/gas exploration and exploitation within or affecting a World Heritage Site are incompatible with its World Heritage status, and may constitute a basis for inscription on the ‘World Heritage in Danger’ list. 16 The IUCN’s position is that “Mineral and oil/gas exploration and exploitation outside World Heritage Sites should not, under any circumstances, have negative impacts on their Outstanding Universal Value.”17
In 2014, the Mikisew Cree First Nation submitted a petition to the Committee asking them to place WBNP on the list of ‘World Heritage in Danger’. CPAWS submitted a letter of support for their petition. In 2015, in response to the Mikisew Cree’s petition, the Committee noted with concern “the environmental impacts on the Peace-Athabasca Delta from hydro-electric dams, oil sands development, and proposed open-pit mining in the vicinity of the property, which could negatively impact its Outstanding Universal Value”18 and asked Canada to undertake a Strategic Environmental Assessment to assess the potential cumulative impacts of all developments on the Outstanding Universal Value of WBNP, and “to invite a joint World Heritage Centre/IUCN Reactive Monitoring mission to review the impact of the developments on the property”19
The Strategic Environmental Assessment report was released on May 30, 201820, and the Reactive Monitoring Mission to Wood Buffalo National Park submitted their report to UNESCO on March 10, 2017. Their report said that the Reactive Monitoring Mission (RMM) “agrees with the vast majority of observers that documented changes can be linked to decades of massive industrial development along the Peace and Athabasca river corridors.”21 The report described
15 Convention Concerning the Protection of World Cultural and Natural Heritage. 1972. Art. 11.4 http://whc.unesco.org/archive/convention-en.pdf 16 Ibid, pg. 11 17 IUCN World Heritage Advice Note: Mining and Oil/Gas Projects, pg. 1
the Project as one of many challenges for the Outstanding Universal Value of the Park, but one that is particularly concerning:
Teck Frontier is only one of a large number of comparable oil sands projects. Its particularity, including from a World Heritage perspective, is that it would move the development frontier into the last remaining de facto “buffer zone” to the vulnerable south of WBNP, as detailed in the corresponding subchapters. It is clear that this requires World Heritage attention. As a trigger for danger listing, it would distract from a much larger and systemic challenge, which has been accumulating over some 50 years and seems here to stay for the foreseeable future.22
The increase in industrial development to the south of the Park since it was designated a World Heritage site in 1983, and current level of human footprint, are striking (Figure 1). The Operational Guidelines for the Implementation of the World Heritage Convention now requires that all sites nominated as World Heritage Sites are surrounded by an adequate buffer zone23. The report of the RMM noted the troubling lack of buffer zones around the Park. 24
For the purposes of effective protection of the nominated property, a buffer zone is an area surrounding the nominated property which has complementary legal and/or customary restrictions placed on its use and development to give an added layer of protection to the property.25
The operational guidelines from 1980, prior to designation of the Park as a World Heritage site also referred to the need for buffer zones:
12. Whenever necessary for the proper conservation of a cultural or natural property nominated, an adequate “buffer zone” around a property should be foreseen and should be afforded the necessary protection. A buffer zone can be defined as an area surrounding the property which has an essential influence on the physical state of the property26
Establishing and managing buffer zones is meant to decrease the risk of negative impacts originating from the surrounding landscape on the OUVs of a World Heritage Site.27 Figure 1 shows that recent (May 2018) protection of portions of the landscape surrounding the Park to the south and east by the Province of Alberta have provided buffer to these portions of the Park,
22 Ibid, pg. 43. 23 Operational Guidelines for the Implementation of the World Heritage Convention WHC.17/01 (12 July 2017), paragraphs 103- 107 whc.unesco.org/document/163852 24 Report of the joint WHC/IUCN Reactive Monitoring mission to Wood Buffalo National Park, pg. 29-30.
however, the section between the southern border of the Park and the Mineable Oil Sands Region remains unprotected and is vulnerable. The Project significantly encroaches into what should be a buffer zone for the Park.
The RMM concluded that a “major and coherent response” from Canada was necessary to avoid a recommendation to inscribe the Park on the list of World Heritage sites in Danger.28 The report’s fifth recommendation dealt specifically with the Project:
Conduct an environmental and social impact assessment of the proposed Teck Frontier oilsands mine project in line with the IUCN World Heritage Advice Note on Environmental Assessment, fully taking into account the Outstanding Universal Value of the property, including the Peace-Athabasca Delta.29
At the 2017 meeting of the Committee requested Canada conduct, in line with the IUCN World Heritage Advice Note on Environmental Assessment, an Environmental and Social Impact Assessment (ESIA) of the Teck Frontier project, and submit it to the World Heritage Centre for review by IUCN. The Committee also requested Canada submit an Action Plan for a major and participatory management response to the vulnerability of the Park.30
The environmental impact assessment submitted by Teck fails to adhere with the following principles set out by the IUCN World Heritage Advice Note on Environmental Assessment: 1. Proposals located outside World Heritage Site boundaries should also be assessed. Development proposals outside the boundaries of a World Heritage Site may have serious negative impacts on Outstanding Universal Value depending on the nature and scale of the proposals. For example, a mining proposal located 30km away from a site may, depending on the terrain, have significant and long-term implications for the hydrology of a site and also cause secondary effects, such as demographic changes leading to unsustainable natural resource use (e.g. illegal hunting). World Heritage Sites, like other protected areas, are integral to the wider landscape and cannot be considered independently from wider ecosystem processes.31
28 Report of the joint WHC/IUCN Reactive Monitoring mission to Wood Buffalo National Park, pg. 29-30.
Figure 1: Oil Sands industrial development relative to the southern border of Wood Buffalo National Park in 1983, when the Park was designated a World Heritage Site (A), and in 2016 plus the footprint of the Project (B), and the human footprint in the region in 2016 plus the footprint of the Project (C). WPP = Wildland Provincial Park.
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The environmental impact assessment submitted by Teck fails to adhere with this principle because it considers impacts to Wood Buffalo National Park in isolation from impacts the Project will have on the surrounding landscape of the Park. Teck has considered impacts on the Park independently from wider ecosystem processes. This is itemized further below in our submissions regarding the impacts of the Project on migratory birds, wood bison, and the PAD.
2. All likely effects on Outstanding Universal Value should be assessed, including direct, indirect and cumulative.
An Environmental Assessment for a proposal affecting a natural World Heritage Site should assess its likely effects on Outstanding Universal Value, including direct, indirect and cumulative effects. The assessment should consider effects on values, integrity and protection and management as described in the site’s Statement of Outstanding Universal Value. The Environmental Report should present clear conclusions for these three topics and for Outstanding Universal Value overall. Potential social issues that could impact on the site’s Outstanding Universal Value should also be carefully considered.32
The environmental impact assessment submitted by Teck fails to adhere with this principle because it focuses only on direct impacts, and fails to consider indirect or cumulative impacts of the Project on the Outstanding Universal Values of the Park. This is itemized further below in our submissions regarding the impacts of the Project on migratory birds, wood bison, and the PAD.
Teck also fails to meaningfully consider integrity or protection and management, and simply sets out a small portion of the legal and regulatory framework governing the Park and its surrounding lands. There is no assessment by Teck on the effectiveness of federal and provincial law and policy concerning the integrity of the Park or its management. Not only has the federal legislation been subject to criticism in the literature,33 the very status of the Park as a site being considered for inclusion on the danger list suggests the governing legal and policy framework is not effective protecting the integrity of the Park or protecting its Outstanding Universal Values. A key component of protection and management for a World Heritage Site is buffer zones and/or wider protection of the site from threats outside its boundaries,34 and Teck fails to address the fact that the Project is the closest mine to the Park and is significantly reducing the current buffer zone between the Park and existing oil sands mines.
32 Ibid, Annex 2, pg 12. 33 Shaun Fluker, “Ecological Integrity in Canada’s National Parks: The False Promise of Law” (2010) 29 Windsor Review of Legal and Social Issues 89. 34 IUCN note at page 4. 11
PART III: IMPACTS OF THE PROJECT ON THE OUVS OF THE PARK
The Peace-Athabasca Delta: Teck’s Conclusion – Negligible to Low Impacts
Teck concludes that the project will have negligible impacts on water flow and water levels, surface water quality and sedimentation, and concludes that impacts on air quality will be low.35 WBNP’s World Heritage designation recognized the PAD as a feature of Outstanding Universal Value as a “superlative natural phenomena or area of exceptional natural beauty and aesthetic importance”.36 The Peace-Athabasca Delta (the “PAD”) is the one of the largest inland deltas in the world. The PAD provides habitat to a variety of different wildlife species and has a high cultural and spiritual value to the Indigenous Groups in the area.37 Furthermore, the PAD was recognized as a Ramsar Wetland of International Importance. The Ramsar designation was put in place in 1982 in recognition of the Delta being “[o]ne of the most important nesting, resting and feeding areas for numerous species in North America. Up to 400,000 birds occur during spring migration, and more than one million occur in the fall. The delta meadows provide grazing for several hundred free-roaming bison, one of 44 other mammals recorded.”38
Upstream withdrawal from the Athabasca River by industrial development, has contributed to less frequent flooding of the PAD.3940 The Project will further decrease water flow in the Athabasca River, thus intensifying the effects already seen on the PAD. Water withdrawal from oil sands activities, including the Project, will continue to impact the hydrological recharge mechanisms of the PAD negatively, as lower flows lead to a reduced regularity in hydraulic dam conditions.41 The decreased water level in the PAD is highly problematic. Not only does it restrict transportation and the cultural activities of the Indigenous groups in the area, it also facilitates the growth and spread of shrubs and invasive species such as old willow and Canada thistle.42 Furthermore, drying of the PAD impacts fish and migratory bird habitat availability within the Park. These factors have caused animals with important cultural
35 Teck. 2018 Assessment of the Potential Effects of the Frontier Oil Sands Mine Project on the Outstanding Universal Value of Wood Buffalo National Park World Heritage Site. https://www.ceaa-acee.gc.ca/050/documents/p65505/121873E.pdf 36 UNESCO World Heritage Centre. Sites. Wood Buffalo National Park. https://whc.unesco.org/en/list/256 37 Reactive Monitoring Mission to Wood Buffalo National Park, pg1: https://whc.unesco.org/en/documents/156893 38 Ramsar. Country Profiles: Canada. https://www.ramsar.org/wetland/canada 39 Strategic Environmental Assessment , pg. EX-3 40 Wilmshurst expert opininon report, page 3 41 Strategic Environmental Assessment , pg. 5-7 42 Wilmshurst expert opininon report, page 4 12
significance to Indigenous Groups, such as the Wood Bison and the muskrat, to move elsewhere because of reduced food quality and availability43. Wood Bison: Teck’s Conclusion – Low Impact
Teck acknowledges that the project will displace the Ronald Lake Bison herd and increase predation risk on this herd, but they conclude that there is no linkage between the Project and the Bison that are resident to the Park. They also conclude that the Project will not increase disease transmission from the WBNP herd to the disease-free Ronald Lake herd.44 These conclusions come without actually assessing the potential impacts of the Project on the movements of the Ronald Lake Bison Herd and the Park’s resident Bison herd.
The expert opinion of Dr. Wilmshurst provides a contrary opinion. The impacts of the Project on the PAD will also impact the Wood Bison that use this habitat45. Physical impacts on the PAD will result in further changes to the vegetation in the PAD, which will in turn affect habitat selection by the bison. Shifts in habitat selection away from preferred areas in the PAD may alter connectivity among populations within and outside WBNP, increasing the risk of disease transmission to populations that are currently disease-free. Decreases in abundance of high quality habitat may increase predation risk by increasing the frequency of encounters between bison and wolves, and potentially cause decreased body size of the bison.46 The Wood Bison of WBNP, and the unbroken predator-prey relationship between the bison and wolves, is one of the features of WBNP recognized to have Outstanding Universal Value that resulted in the designation of WBNP as a World Heritage Site.
Wood Bison are a species at risk in Canada. The recovery strategy for the species recognizes mining as a threat to the species, as the “Ronald Lake herd may be significantly impacted by the mine(s) proposed within their range.”47 It states that the impacts of pollution of Wood Bison are ‘unknown’, and notes that “Water systems surrounding and downstream from oil exploration sites contain higher levels of pollutants than normal… Bison have been observed licking or rolling in industrial effluents.”48 Approval of the Project is inconsistent with a true commitment to the recovery of Wood Bison.
43 Recovery Strategy for the Wood Bison https://www.registrelepsararegistry.gc.ca/virtual_sara/files/plans/rs_wood_bison_e_proposed.pdf 44 Teck. 2018 Assessment of the Potential Effects of the Frontier Oil Sands Mine Project on the Outstanding Universal Value of Wood Buffalo National Park World Heritage Site. https://www.ceaa-acee.gc.ca/050/documents/p65505/121873E.pdf 45 Wilmshurst expert opinion report, pg. 4-9 46 Ibid. pg 9. 47 Environment and Climate Change Canada. 2018. Recovery Strategy for the Wood Bison (Bison bison athabascae) in Canada. Species at Risk Act Recovery Strategy Series. Environment and Climate Change Canada. Ottawa. pg. 11
Migratory Birds: Teck’s Conclusion – Negligible Impacts
Teck’s overall conclusion on the impact of the Project, is that it is not expected to affect the migratory bird populations who use the area during migrations. The great concentrations of migratory wildlife that use WBNP is an Outstanding Universal Values that led to the park being designated as World Heritage Site.49 Of these great concentrations of migratory wildlife, there are at least 215 bird species that use the area. During spring migration, approximately 400,000 birds use the delta and during the fall, that number increases 800,000 birds and 10 million bird- use days.50 Teck states that the Project will not affect migratory bird breeding habitat within the Park. The likelihood of this being true is small, as the mine itself will destroy the majority of the wildlife habitat within its leasing area. Furthermore, the cumulative impacts of climate change and industrial development, which withdraw water from the Athabasca river, have reduced water availability in the PAD, something that will only be increased by another development such as the Project. Subsequently, this can lead to higher levels of predation on birds, as lower water levels within the PAD allows terrestrial predators to more easily encroach on nesting areas.51 Teck states that mortality risk from infrastructure associated with the Project, including tailings ponds, will have negligible effects on migratory bird populations that breed in the Park. However, the close proximity of the Project, with its large tailings pond, will certainly increase the number of birds exposed to process-affected water52. Process-affected water can negatively impact migratory birds through direct exposure, ingestion or inhalation, which can ultimately lead to decreased fitness and death. 53 The greatest threat to the birds is the bitumen itself. If a bird becomes covered in bitumen, it risks hypothermia, drowning and toxicity amongst others.54 Teck states that increased number of tailings ponds will likely increase mortality risk to migratory birds, however they state that this can be mitigated with bird deterrent systems. Teck claims the deterrence systems set out in its waterfowl protection plan have been proven effective by other operators – citing very general data up to 2013. Dr. St. Clair, a world expert on deterrent systems, states in her expert opinion that deterrent systems are ineffective at preventing all birds from landing and have not received credible or rigorous testing on their functionality55. Birds often become habituated to the constant exposure of acoustic deterrents, and for that reason are not discouraged by the noises. Furthermore, when there are high densities of birds looking for
49 https://whc.unesco.org/en/list/256 50 St. Clair expert opinion report 51 Ibid 52 Ibid 53 Strategic Environmental Assessment, pg. 4-16 54 St. Clair expert opinion report 55 St. Clair expert opinion report 14
areas to land, such as during extreme weather events, the deterrent systems fail to prevent landings because the birds become attracted to the anthropogenic light sources56. Finally, the noise pollution from the deterrent systems have been known to negatively effect other nearby species including bats, ungulates and people.57 Dr. St. Clair specifically states in her expert opinion that the Project will: “undoubtedly increase exposure to process-affected water by adding a large tailings pond and associated water bodies adjacent to the Athabasca River and closer than any of the other 7 mines to the Peace Athabasca Delta. These were circumstances that I suggested should be avoided in the recommendations stemming from the RAPP project.”58 (RAPP = Research on Avian Protection Project) Endangered Whooping Crane: Teck’s Conclusion – Low Impact
Teck acknowledges that the project will increase mortality risk for endangered whooping cranes and may alter migration routes, but concludes: “Project factors influencing whooping crane abundance and distribution are not expected to threaten the sustainability of the regional population, nor affect the breeding habitat in the Park.”59 In fact, any increased mortality risk for the last remaining population of an endangered species threatens the sustainability of the population, and the species as a whole.
The Whooping Crane habitat within WBNP is of critical importance for the recovery and sustainability of the species. The Whooping Cranes of WBNP the only self-sustaining population of this critically endangered species. The population was reduced to 21 individuals worldwide in 194160, but has since been brought back to ~500 individuals through dedicated management of the small number of breeding pairs in WBNP61. It was recognized both as a feature with Outstanding Universal Value in its World Heritage designation under the criteria: “to contain the most important and significant natural habitats for in-situ conservation of biological diversity, including those containing threatened species of outstanding universal value from the point of view of science or conservation.”62 Furthermore, the PAD was recognized as a Ramsar Wetland
56 St. Clair expert opinion 57 Ibid 58 Ibid pg 8. 59 Teck. 2018 Assessment of the Potential Effects of the Frontier Oil Sands Mine Project on the Outstanding Universal Value of Wood Buffalo National Park World Heritage Site, pg 24. https://www.ceaa-acee.gc.ca/050/documents/p65505/121873E.pdf
60 Parks Canada. Species at Risk. Whooping Crane. https://www.pc.gc.ca/en/nature/science/especes-species/liste-list/eep-sar3v 61 The South Texas whooping crane flock breaks the 500 mark. Caller Times Aug 21, 2018. https://www.caller.com/story/news/local/2018/08/21/record-500-plus-endangered-whooping-cranes-winging-south-texas- soon/1052782002/ 62 UNESCO World Heritage Centre. Criteria for Selection. https://whc.unesco.org/en/criteria/ 15
of International Importance for “[its] unique importance as the only remaining natural nesting area for the endangered whooping crane”63
The Project is expected to add approximately 6000 hectares of tailings areas to the region.64 This is particularly risky to the Whooping Crane, because they use the Mineable Oil Sands Region (“MOSR”) as a stopover site during their migration65. Tailings ponds are similar in size and appearance to other water bodies, and migratory birds, such as the Whooping Crane, often mistake them for suitable stopover sites. If Whooping Cranes land on tailings ponds, they risk contamination and possible death from direct contact, ingestion, or inhalation of contaminants66. As the population of the Whooping Crane is still small, unnatural mortality of any of the members of the population is detrimental to the recovery and sustainability of the species. Bird deterrent systems are in place to try to prevent this from happening, however these systems are ineffective at preventing all birds from landing on tailings ponds67.
Industrial development along the migration route of the Whooping Cranes threatens the quality of the stopover habitats during migration. The quality of stopover habitat during migration is extremely important as it allows birds to rest and recover, better preparing them for the onward journey68. Landscape changes from industrial developments along the migration route that cause Whooping Cranes to avoid those areas69 may be detrimental to the birds’ fitness. Furthermore, industrial developments risk disrupting necessary cues used by Whooping Cranes during their migrations.70 This disruption could lead to altered migration routes and diminish the birds’ health when they arrive to their breeding grounds, therefore impairing the recovery and sustainability of the Whooping Crane species.
Whooping Cranes are known for being particularly susceptible to alterations to their nesting habitat, and favor areas that are removed from anthropogenic disturbances.71 This has led to the loss of all other nesting grounds for this species in the world. By adjusting hydrological regimes, the Project has the potential to decrease Whooping Crane habitat quality (i.e. loss of wetlands), as well as food availability (i.e. fish, aquatic invertebrates). Poor quality breeding habitat caused by changes in hydrological regime changes can lower fertility rates, leading to lower reproduction rates, as well as decreased overall fitness72.
63 Ramsar. Country Profiles. Canada. http://www.ramsar.org/wetland/canada 64 Reactive Monitoring Mission to Wood Buffalo National Park, pg 22: https://whc.unesco.org/en/documents/156893 65 Pearse, A. T., Rabbe, M., Juliusson, L. M., Bidwell, M. T., Craig-Moore, L., & Brandt, D. A. (2018). Delineating and identifying long-term changes in the Whooping Crane (Grus americana) migration corridor. PLoS ONE, 13(2), 0192737. 66 Strategic Environmental Assessment, pg. 4-16 67 St. Clair, C. C., Habib, T., & Shore, and B. (2011). Spatial and temporal correlates of mass bird mortality in oil sands tailings ponds. Edmonton, Alberta: Alberta Environment. 68 Strategic Environmental Assessment, pg. 4-34 69 Van Schmidt, N. D., Barzen, J. A., Engels, M. J., & Lacy, A. E. (2014). Refining reintroduction of whooping cranes with habitat use and suitability analysis. The Journal of Wildlife Management, 78 (8), 1404-1114 70 Strategic Environmental Assessment, pg. 4-34 71 https://www.pc.gc.ca/en/nature/science/especes-species/liste-list/eep-sar3v 72 Strategic Environmental Assessment, pg. 4-36 16
Although Teck concludes that the project will not affect the sustainability of the population, they state:
5.1.2 There is a valid linkage between migratory birds, specifically waterfowl and waterbird species and the Project. The migration corridor for waterfowl and waterbirds, including whooping crane, to the Park passes over the MOSA, including the Project. Despite the implementation of extensive bird deterrent programs, tailings areas within the region provide a mortality risk to migratory birds if direct exposure occurs.73 They also state: "Given the new ECCC whooping crane migration data and no reclamation of other tailings areas at Application Case (i.e., conservative scenario), the prediction of low environmental consequence for whooping crane abundance and distribution (see Volume 3, Section 11.7.6 of the Project Update) would likely increase to moderate environmental consequence based on the high magnitude effects on stopover habitat and moderate magnitude mortality risk from potential interactions with tailings areas."74
The International Crane Foundation has provided a letter outlining the threats of the project to the Whooping Crane population and species as a whole (appended), and requests of the Panel that this project, located along the migration route of this endangered species, not be approved.
On the basis of the foregoing, CPAWS submits the Project will have significant adverse environmental effects on the endangered Whooping Cranes and their critical habitat. This population of Whooping Cranes is listed and protected as an endangered species under the Species at Risk Act (SARA)75 Any adverse impact to a listed endangered migratory bird species is significant and prohibited under SARA, unless authorized under the terms of the legislation. Moreover, any adverse impact to the Whooping Cranes is significant given this is the only wild population of Whooping Cranes on Earth.76 Furthermore, any adverse impact to the Whooping Crane and its critical habitat adversely impacts an Outstanding Universal Value of a World Heritage Site and thereby constitutes a significant negative impact of the project.
Section 79 of SARA applies when a project that is likely to impact a listed endangered species is subject to a federal environmental assessment. Accordingly, section 79 requires the JRP to
73 Teck. 2018 Assessment of the Potential Effects of the Frontier Oil Sands Mine Project on the Outstanding Universal Value of Wood Buffalo National Park World Heritage Site, pg 10. https://www.ceaa-acee.gc.ca/050/documents/p65505/121873E.pdf
74 Teck Resources Limited Responses to Joint Review Panel Information Request Package 7 – Wildlife & Biodiversity. May 2017. Pg 7-105. https://www.acee.gc.ca/050/documents/p65505/119185E.pdf 75 SC 2002, c 29. 76 COSEWIC Assessment and Status Report on the Whooping Crane, online: https://www.sararegistry.gc.ca/virtual_sara/files/cosewic/sr_Whooping%20Crane_0810_e1.pdf. 17
identify all adverse effects of the Project on Whooping Crane and its critical habitat and ensure that, if the Project were to proceed, measures to avoid or lessen those effects would be taken, in a way that is consistent with the species’ recovery strategy.77 CPAWS submits that Teck has failed to identify what measures will be taken to ensure the Project avoids or lessens the adverse environmental effects to Whooping Cranes.
Cumulative and Unknown Impacts from the Project
Teck’s submissions fail to address the cumulative effects on air quality in the Delta from all existing and planned oil sands projects. The EIA is insufficient, as no quantitative study has been done to show whether the higher concentrations of some air quality parameters will have a statistically significant impact on WBNP.78
Teck’s submission fails to address the cumulative effect on groundwater and hydrology, and surface water quality in the Delta from all existing and planned oil sands projects, and fails to provide sufficient evidence that the groundwater withdrawal of the Project will not affect the surface water level in the Delta. Furthermore, the submission fails to address cumulative effects on wildlife, fish, fish habitat, terrain and soils, and vegetation in the Delta and the Park from all existing and planned oil sands projects.
“Negligible” is defined in the EIA as “so close to zero that the results were rounded to zero.” This is insufficient in and of itself as it in no way addresses whether a result, whether or not it is close to zero, has a statistically significant impact on any parameter. Throughout the EIA, the use of the term “negligible” is applied to determine that the concentration exceedances of many substances (i.e. sulphide, aluminum, phosphorus, phenolics, manganese, mercury) that would result from the Project would have no impact on air or water quality. Likewise the term is used to conclude that the Project would have no impact on water flow, water levels, and so on. In the absence of an analysis of whether these exceedances are statistically significant, this conclusion cannot be drawn. Conclusion
The Project and the Environmental Assessment of it are inconsistent with Canada’s international commitments to the World Heritage Committee under the Convention. The Project threatens individual populations, species, an entire delta, and ultimately, nearly all of the elements of Outstanding Universal Value of a region of incalculable heritage value to humanity.
77 Tsleil-Waututh Nation v Canada (Attorney General), 2018 FCA 153. 78 Wilmshurst expert opinion report. Pg 12-15. 18
The project endangers the quantity of water that flows into the Peace-Athabasca Delta and threatens to contaminate the water with industrial effluent. Additional declines in the health of the PAD and impacts on the other OUVs of the World Heritage site increase the threat that WBNP will be placed on the list of World Heritage Sites in Danger, and threaten the PAD’s designation as a Ramsar Wetland of International Importance. These designations are world- renowned and threats to WBNPs’ inclusion on these lists risks further tarnishing Canada and Alberta’s international reputations as good stewards of our natural heritage.
The Project creates serious threats for multiple recognized species at risk. The project threatens the continued existence of the Ronald Lake Herd of Wood Bison, and the long-term recovery and survival of Wood Bison, already a species at risk. The creates a threat to the continued recovery of the endangered Whooping Crane, due to the pollution of water and air, and the increased risk of whooping crane landings in lakes of industrial effluent. Any increased risk of mortality or reproductive fitness to an endangered species is a significant negative impact. The project has also been identified as having potential adverse effects on several other species at risk in Alberta and Canada, including, but likely not limited to Woodland Caribou, boreal population (Threatened), Peregrine Falcon, anatum/tundrius subspecies (Special Concern), Short-eared Owl (Special Concern), Yellow Rail (Special Concern), Common Nighthawk (Threatened), Olive- sided Flycatcher (Threatened), Canada Warbler (Threatened), Rusty Blackbird (Special Concern), and Western Toad (Special Concern).
The Environmental Assessment undertaken is insufficient. It fails to address the cumulative impacts of all existing and planned oil sands projects on the OUV’s of the park, and frequently jumps to the conclusion that an impact will be negligible without providing an analysis of how that conclusion is supported.
It is our view that the Panel cannot properly assess the environmental impact of the Project until Parks Canada has completed their Action Plan for WBNP, and the World Heritage Committee has determined whether or not these actions are sufficient to diminish the risk to this world heritage site so as it is not listed as being In Danger.
The demonstrable impact this Project will have on WBNP will harm its Outstanding Universal Value and likely cause UNESCO to place WBNP on the list of World Heritage Sites in Danger. Given Canada’s local, national, and international obligations to protect this irreplaceable natural resource, the Panel has few reasonable options. CPAWS suggests those options are as follows:
1. The Panel should recommend that the Governor in Council reject this Project; 2. The Panel should state unequivocally that the Project will have significant adverse environmental effects; and 3. The Panel should conclude that nothing in Teck’s evidence shows those significant adverse environmental effects can be mitigated.
19
Further and in the alternative, if the Panel recommends conditions to attach to the Project’s approval, those conditions should, at a minimum, include the following recommendations: 1. That, the Governor in Council should not make any final decision before it complies with section 172 of the Operational Guidelines for the Implementation of the World Heritage Convention;79 2. That the Governor in Council should not make a final decision until the multi- jurisdictional Action Plan for WBNP is completed; and 3. That the Governor in Counsel should submit the Panel’s report to the World Heritage Committee to assist it in seeking appropriate solutions to ensure that the Outstanding Universal Value of the WBNP is fully preserved. Further, finally, and in the alternative, CPAWS states that, despite Teck’s total failure to identify viable options for mitigating the Project’s further marginal compromise of the PAD’s hydrology, one imperfect but possible option remains: replace it with water already sequestered for human activity. As such, if the Panel recommends conditions to attach to the Project’s approval, those conditions should recommend: 4. That, before construction of the Project can commence, Teck must conclude good faith efforts to secure, at its cost, an offset to replace an equivalent amount of water the Project withdraws from the Athabasca River in the form of additional discharge from the WAC Bennett Dam into the Peace River. 5. That, before construction of the Project can commence, Teck must, at its cost, support research on the efficacy of bird deterrent systems as is needed due to the lack of rigorous testing of deterrent systems. 80 It must consult with experts on migratory birds and fully incorporate the most up to date Bird Monitoring Protocol produced by the Research on Avian Protection Project (RAPP).
79 WHC.17/01 12 July 2017
International Cran e Foundation Headquarters Regional Programs E- 11376 Shady Lane Road East Asia 27 August, 2018 P.O. Box 447 South;Southeast Asia Baraboo, WI 53913-0447, USA Sub-Saharan Africa 608-356-9462 North America 608-356-9465 fax info@;avin g:ranes.org vwvw.saving:ranes.org
Fimnded ill I 973 hy Jim wid Sauey, Ph.D. (/948-/987) Mr. Alex Bolton, Chair and George A rd1ibald, I'll. D. Frontier Oil Sands Mine Joint Review Panel Board of Di re ctors Ri chard Bei lfuss (President & CEO) c/o Canadian Environmental Assessment Agency Ur ban Lehner (Chair) Jeanne Prochncm (Vi ce Chai r) 160 Elgin Street, 22ndFloor Roberta Asher (Treasurer) Ottawa,, Ontario KIA OH3 G eor~Arch i bal d (Co-Fou nder) Steve Becker Lawrence Benjamin James Br umm (Past Chair) Re: Teele Frontier Oil Sands Mine Project and Endangered Whooping Cranes A. Sidney England SteveE ull er Ann Hami lton Mirabel Helme Dear Mr. Bolton: Heather Henson El eanor Hoagland Robert HDg.Je t The wetlands of Wood Buffalo National Park (WBNP) are home to the only self Paul King Patti Brash McKei than sustaini'ng population of Endangered Whooping Crane (SARA Schedule 1) in Nancy Merrill Dav id Myers North America. The Whooping Crane is one of the rarest birds in North America. Margery Ni colson Hugh O'Hall oran The population was decimated early in the 20th century, reaching a low of only 16 Jeanne Prochn cm birds in the 1940s. Since that time, Whooping Cranes have been on a fragile path Paul Robbi ns Jason Sauey to recovery through careful and dedicated management of the flock on their Willi am Smith Jennifer Per kins Speers breeding grounds in WBNP, along their migration route through Alberta and Jeffrey Su ndberg Timothy Tuff Saskatchewan, and on their wintering grounds 4000 km to the south in Texas, USA.
Emeritus Directors The Whooping Crane habitat within WBNP is of critical importance for the Joseph Branch recovery and sustainability of the species. For that reason, WBNP was recognized as Robert Brumder Willi am Conwey a United Nations World Heritage Site and a Wetland ofinternational Importance Leslie Cool idge Jane Dana under the Ramsar Convention. Ri chard Dana John Dey Judy Derse Rober t Dohmen (Secretary) We believe that the Teck Frontier Oil Sands Mine Project poses many threats to the TI1omas Donn e! ley, II Endangered Whooping Crane. Samuel Evans Ri chard Fox Nina Griswold For rest Hartmann First, the Teck Frontier Project is expected to add approximately 6000 ha of tailings Hall Healy TI1omas Hoffma nn areas to the region. This is particularly risky to the Whooping Crane, because they Char les Jahn Ma rk Lefel:N re use the Mineable Oil Sands Region (MOSR) as a stopover site during their Lali se Mason migration. In both autumn and spring, they stop to rest and feed in shallow water Nancy Math ews Janet McKen na bodies. Tailings ponds resemble other water bodies, and are often mistaken as Gerd Mu ehlI eh ner Margery Ni colson suitable stopover sites by migratory birds, such as Whooping Cranes. If Whooping Nancy O'Donn el l Regi na Phel ps Cranes land on tailings ponds, they risk contamination and possible death from Harry Peterson Di ane Ri kkers direct contact, ingestion or inhalation of tailings material. As the population of the Kathl een D. Ryan Dona ld Sauey Whooping Crane is still relatively small and fragile, the accidental death of a Vi ctoria Shaw member could be detrimental to the recovery and sustainability of the species. We Richard Steeves Ireene Sullivan are aware that bird deterrent systems are in place to try to prevent this from Ann Ti sdale Carl-Albrecht von Treuenfels Sandi Whitmore Virgini a Wolfe Bel inda Wright Page 2 27 August 2018 happening; however, these systems are often ineffective at preventing birds, including Whooping Cranes, from landing on tailings ponds.
Second, industrial development such as the Teck Frontier Project along the migration route of the Whooping Cranes threatens the quality of the stopover habitats during migration. The quality of stopover habitat during migration is extremely important, as it allows birds to rest and recover, better preparing them for continuing their journey. Furthermore, landscape changes from industrial developments along the migration route could disrupt necessary cues used by Whooping Cranes during their migrations. This could lead to altered migration routes, or cranes landing in the wrong areas (i.e. tailings ponds). Issues such as these during migration could impair the recovery and sustainability of the Whooping Crane.
Finally, the Teele Frontier Project presents risks and possible changes to areas that may be colonized by Whooping Cranes as the population recovers further in the future. The current nesting grounds lay north of WBNP, but areas of the Slave River delta and the Peace-Athabasca delta present important alternatives for the Whooping Crane as its population expands. Possible changes in habitat and food availability, downstream changes in hydrological regimes, or accumulation of contaminants can negatively impact Whooping Cranes by lower fertility rates, leading to lower productivity and reduced overall fitness. These factors will be exacerbated by climate change. Maintaining the biological and hydrological integrity of the WBNP system and the surrounding region will help ensure the health and resiliency of Whooping Cranes for decades to come.
Consequently, we wish to suggest that tar-sand energy projects be restricted to areas outside the migration path of the Whooping Crane.
Respectfully,
Dr. Richard Beilfuss, PhD Dr. Barry Hartup, DVM, PhD President and CEO Director of Conservation Medicine VOLUME 1: MILESTONE 3 - FINAL SEA REPORT
Strategic Environmental Assessment of Wood Buffalo National Park World Heritage Site
It will be iniS May 2018