NATIONAL ENERGY BOARD
IN THE MATTER OF the National Energy Board Act, R.S.C. 1985, c. N-7, as amended, and the regulations made thereunder;
AND IN THE MATTER OF an Application by Enbridge Pipelines Inc. for the Line 3 Replacement Program;
AND IN THE MATTER OF National Energy Board Hearing Order OH-002- 2015 and National Energy Board File Number OF-Fac-Oil-E101-2014-11 02.
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REPLY EVIDENCE OF ENBRIDGE PIPELINES INC. ______
November 27, 2015 Enbridge Pipeline Inc. Reply Evidence of Enbridge Pipelines Inc. Application for the Line 3 Replacement Program Filed November 27, 2015 OH-002-2015 File OF-Fac-Oil-E101-2014-11 02 Page 2 of 62
Table of Contents
I. INTRODUCTION ...... 4 II. REPLY EVIDENCE ...... 6 A. ASSEMBLY OF MANITOBA CHIEFS ...... 6 (i) A Critical Analysis of the L3RP Engagement Process: ...... 6 (ii) First Nations, Infrastructure and Indigenous Participation with Major Resource Projects: ...... 9 (iii) Enbridge Response to the Recommendations proposed by Mr. Kruk Report: ...... 10 (iv) Working at Building Sustainable Relationships ...... 19 B. BEAVER LAKE CREE NATION, ERMINESKIN CREE NATION, OCEAN MAN FIRST NATION, SWEETGRASS FIRST NATION AND SIKSIKA NATION #430 (collectively, the “Nations”) ...... 25 C. OCHAPOWACE FIRST NATION ...... 40 (i) “Lack of Proponent commitment to resolve and remediate past contamination along the ROW” ...... 40 (ii) “Decommissioning of existing Line 3 Pipeline” ...... 40 (iii) “Inclusion of Traditional Knowledge of Aboriginal Groups” ...... 41 (iv) “Historical Archeological Artifacts within the L3RP” ...... 41 (v) “Proponent/First Nation Engagement Lapsing once NEB Approval is Granted” ...... 42 (vi) “Sufficient Shut-down Valves to properly Isolate Areas where Incidents Potentially Take Place” ...... 42 (vii) “Spill Containment Efficiency and Remediation” ...... 42 D. GEORGE GORDON FIRST NATION...... 43 E. KEESEEKOOSE FIRST NATION ...... 45 (i) Keeseekoose First Nation Land Holdings ...... 45 (ii) “Lack of Proponent commitment to resolve and remediate past contamination along the ROW” ...... 46 (iii) “Decommissioning of existing Line 3 Pipeline” ...... 46 (iv) “Inclusion of Traditional Knowledge of Aboriginal groups” ...... 46 F. MANITOBA METIS FEDERATION ...... 47 G. MICHEL FIRST NATION ...... 49 Enbridge Pipeline Inc. Reply Evidence of Enbridge Pipelines Inc. Application for the Line 3 Replacement Program Filed November 27, 2015 OH-002-2015 File OF-Fac-Oil-E101-2014-11 02 Page 3 of 62
(i) Use of Crown Land: ...... 49 (ii) Engagement Methods: ...... 49 (iii) Assessment Methodology ...... 50 (iv) Incorporation of Aboriginal Engagement into ESA ...... 53 (v) Michel First Nation ...... 55 (i) Crown Lands ...... 55 (ii) Project Impacts ...... 55 H. PASQUA FIRST NATION ...... 57 I. SAMSON CREE NATION ...... 58 J. WHITEBEAR FIRST NATIONS ...... 62
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I. INTRODUCTION
1. In accordance with the National Energy Board’s process and schedule outlined in Hearing Order OH-002-2015, the following information makes up Enbridge’s written reply evidence. The following sections are responsive to the written evidence of:
A. Assembly of Manitoba Chiefs;
B. Beaver Lake Cree Nation, Ermineskin Cree Nation, Ocean Man First Nation, Sweetgrass First Nation and Siksika Nation #430;
C. Ochapowace First Nation;
D. George Gordon First Nation;
E. Keeseekoose First Nation;
F. Manitoba Metis Federation;
G. Michel First Nation;
H. Pasqua First Nation;
I. Samson Cree Nation; and
J. Whitebear First Nations.
2. Enbridge has not provided direct responses to the written evidence filed by Asini Wachi Nehiyawak (Mountain Cree), Kahkewistahaw First Nation, Moosomin First Nation, Peguis First Nation, Piikani First Nation, Pine Creek First Nation, Roseau River Anishinabe First Nation, Southern Chiefs Organization, Stoney Nakoda Nation, or the Treaty 2 Territorial Alliance.
3. The Board should not take Enbridge's silence in response to certain statements contained within the intervener written evidence as agreement. Enbridge continues to rely on its filings in relation to the Project as they relate to the facts and issues addressed therein and has endeavored not to repeat those submissions here.
4. Canupawakpa Dakota Nation did not file written evidence, but it did file a letter with the NEB dated September 30, 2015. That letter confirmed that Enbridge had provided funding to Canupawakpa Dakota Nation for a traditional knowledge study which Canupawakpa Dakota Nation intended to file. Though Enbridge has not provided written reply evidence that is specifically responsive to Canupawakpa Dakota Nation’s letter, Enbridge has provided written reply evidence in Sections F, J and elsewhere that is responsive to First Nations, like Canupawakpa Dakota Nation, that are conducting traditional knowledge or traditional land and resource use studies.
5. Frog Lake First Nation filed written evidence on June 29, 2015 that was attached to its Enbridge Pipeline Inc. Reply Evidence of Enbridge Pipelines Inc. Application for the Line 3 Replacement Program Filed November 27, 2015 OH-002-2015 File OF-Fac-Oil-E101-2014-11 02 Page 5 of 62
late Application to Participate. Enbridge has not replied to Frog Lake First Nation’s evidence directly because Enbridge was provided with a letter from Joe Dion of Frog Lake Energy Resources Corp. dated November 6, 2015 advising that Frog Lake First Nation will not continue as an intervener, though portions of Enbridge’s written reply evidence are nevertheless generally responsive to the content of Frog Lake First Nation’s evidence.
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II. REPLY EVIDENCE
A. ASSEMBLY OF MANITOBA CHIEFS
(i) A Critical Analysis of the L3RP Engagement Process:
1. The Assembly of Manitoba Chiefs (“AMC”) filed a report by Dr. James Robson and Dr. Patricia Fitzpatrick, titled A Critical Analysis of the L3RP Engagement Process (the “Report”). The Report critiques Enbridge’s public and Aboriginal engagement with respect to the Line 3 Replacement Program (“L3RP” or the “Project”).
2. Enbridge agrees that Aboriginal engagement is a key component of environmental assessments and regulatory processes in general. Enbridge therefore engages with Aboriginal groups from the early regulatory stages of a project through to operations in accordance with its Aboriginal and Native American Policy.
3. Though the Report draws numerous conclusions about Enbridge’s engagement, those conclusions, respectfully, are based on an inadequate review of the record, false assumptions and analogies, and methodological shortcomings. Enbridge has therefore not replied to the Report in a point-counterpoint format, but instead proffers the following about the whole of the Report.
4. The methodology used by the Report’s authors is described in paragraph 11, where the Report states: “This assessment is based on a review of the appropriate scholarly and applied literature, and a critical analysis of the information made available by Enbridge in [various filings with the NEB].” Absent from the authors’ methodology are any efforts to communicate with Aboriginal groups about Enbridge’s engagement.
5. At paragraph 14 of the Report, the authors state that they evaluated Enbridge’s engagement with “26 First Nations communities and 8 First Nations political organizations in Manitoba”1 though there is no indication that any of those First Nations or political organizations were contacted by the authors before the Report was written. There is also no recognition in the Report that many Aboriginal groups (including many of the cited 26 First Nations) have expressed support for the Project as a consequence of Enbridge’s engagement process, nor is there any explanation proffered in the Report about why there is a general dearth of filed written evidence from Aboriginal groups about, for example, the inaccessibility of Project-related information, or the absence of opportunities to communicate with Enbridge about potential impacts.
6. The Report shows no appreciation for the nature of the Project, being the replacement of an existing pipeline with newer infrastructure in a previously-disturbed corridor that is
1 The Report describes the 26 First Nations and 8 First Nation political organizations in Manitoba as having been identified by Enbridge as “affected by the project.” That is incorrect. Though Enbridge may be engaged with that many First Nations and First Nation political organizations in Manitoba, it does not agree that all such First Nations and First Nation political organizations are impacted by the project. Indeed, there is almost certainly no adverse project-related impacts on many of those First Nations and non-rights bearing political organizations. Enbridge Pipeline Inc. Reply Evidence of Enbridge Pipelines Inc. Application for the Line 3 Replacement Program Filed November 27, 2015 OH-002-2015 File OF-Fac-Oil-E101-2014-11 02 Page 7 of 62
comprised overwhelmingly of privately-tenured lands. Rather, the Report appears to be premised on the assumption that all Aboriginal groups will be significantly and certainly impacted by the Project, which is not correct. The Report does not recognize that an effective engagement process should reflect the nature of a project; specifically, a project’s potential impact on each Aboriginal group. Indeed, the authors’ view as reflected in paragraph 27 appears to be that all First Nations and First Nations political organizations ought to be engaged identically notwithstanding their differing locations, interests and priorities, varying exposures to potential project-related impacts, community-specific protocols for engagement, and differing rights.2
7. Starting at paragraph 17, the authors of the Report suggest that Enbridge’s engagement did not follow a well-defined process. The evidence of such failing, say the authors, is the absence of a definition of “engagement” in the ESA. That is a semantic argument. Not only is the absence of that definition not demonstrative of a flawed process, but “engagement” was characterized repeatedly by Enbridge in various responses to information requests as consisting of a bilateral dialogue involving the sharing by Enbridge of Project-related information and the receipt by Enbridge of issues, concerns and Aboriginal traditional knowledge particular to Aboriginal groups. Enbridge’s engagement logs show extensive efforts by Enbridge to initiate dialogue as well as Enbridge’s efforts to provide Project-related benefits to Aboriginal groups even in the absence of Project-specific impacts.
8. The Report is critical that Enbridge has had community meetings and open houses with some, but not all, of the Aboriginal groups with which it is engaged. Enbridge agrees that community meetings and open houses may be an effective means of having discourse at a community level, however, Enbridge must show respect for the engagement protocols and preferences of each Aboriginal group. Although Enbridge has not always been able to accommodate the specific meeting dates identified by communities as preferred, Enbridge is not aware of a single occurrence in which it has refused to participate in a community meeting or open house.
9. Enbridge’s efforts to engage with Aboriginal groups about the L3RP have been extensive. Beginning in July of 2013, Enbridge engaged through mail outs and emails, technical meetings, reviews of Project application materials, traditional land and resource use studies, presentations about pipeline operations, maintenance and emergency response, environmental inclusion projects, Aboriginal industry reverse trade shows,3 Aboriginal training initiatives, and other means. Enbridge always made representatives (including technical experts, as requested) available to discuss the Project, share information, and receive feedback and concerns.
10. Starting at paragraph 34, the authors of the Report begin an analysis, concluding that
2 There is no recognition in the Report, for example, that most First Nations have constitutionally-protected Aboriginal and treaty rights, but political organizations like AMC do not. 3 Aboriginal industry reverse trade shows are events Enbridge organized whereby smaller Aboriginal businesses and contractors were invited to showcase their services to larger prime contractors likely to be engaged by the Project. Enbridge Pipeline Inc. Reply Evidence of Enbridge Pipelines Inc. Application for the Line 3 Replacement Program Filed November 27, 2015 OH-002-2015 File OF-Fac-Oil-E101-2014-11 02 Page 8 of 62
Enbridge’s engagement was not inclusive or demonstrative of adequate representation. That conclusion was drawn principally by comparing Project engagement with engagement for the Keeyask Generating Station Project in Manitoba. The two projects are not analogous. The Keeyask Generating Station Project was a greenfield development offering a 25% equity position based on significant and near-definite impacts on the traditional practices of four Manitoba First Nations, known collectively as the Keeyask Cree Nations. On L3RP, however, Enbridge has engaged with approximately 150 Aboriginal groups regarding a brownfield pipeline development within a previously-disturbed corridor that consists predominantly of privately-tenured and occupied lands. Enbridge’s engagement process for L3RP did not follow the Aboriginal- Industry Partnership model that was utilized in Keeyask, nor should it have.
11. The Conclusions and Recommendations section of the Report, which starts at paragraph 55, ultimately states that Enbridge’s engagement process has not allowed Aboriginal voices to be heard. In reaching this conclusion, however, the authors have assumed their result. The fact that Project-specific and site-specific impacts have not been disclosed by Aboriginal groups is not evidence of an inadequate engagement process. Rather, it is consistent with Enbridge’s long operational history in the corridor, and is reflective of the nature of the Project.
12. Enbridge has 68 years of operational experience in the L3RP corridor, which currently contains up to six Enbridge pipelines. The land in the immediate vicinity of the pipeline route is at least 99% taken up4 and is predominantly under cultivation. Enbridge solicited information about traditional practices in the same corridor as recently as 2008- 2009 both through engagement and traditional use studies as part of the Alberta Clipper Expansion Project. Notwithstanding these circumstances, Enbridge has made significant efforts to ensure Aboriginal groups had a meaningful opportunity to identify L3RP-specific impacts, including by having agreed to fund 20 traditional land and resource use studies and having had meaningful negotiations with at least an additional seven Aboriginal groups about such studies. Though Enbridge does not believe that traditional land and resource studies were required in the circumstances, it negotiated funding for such studies based on community priorities.
13. Four traditional land use studies have been returned to Enbridge thus far. General concerns and interest of Aboriginal groups are being identified through these studies, and also through Enbridge’s ongoing engagement. Some First Nations have identified features of cultural and historical concern. Enbridge is working with these First Nations to determine if such features are impacted by the Project. Where site-specific concerns have been raised, verification of precise site locations in relation to the L3RP right-of- way is being undertaken via a requested exchange of shape file information and other methods.
4 See Section G, Enbridge’s reply to Michel First Nation’s written evidence. Enbridge calculates the percentage taken up as consisting of 95% privately-tenured lands and 4.5% occupied Crown lands. Enbridge Pipeline Inc. Reply Evidence of Enbridge Pipelines Inc. Application for the Line 3 Replacement Program Filed November 27, 2015 OH-002-2015 File OF-Fac-Oil-E101-2014-11 02 Page 9 of 62
14. The environmental and cultural concerns that have been shared with Enbridge are overwhelmingly not site-specific and principally relate to the potential impacts of a speculative release event. Such concerns are important; however they are best addressed through awareness and education about pipeline safety, integrity, and emergency response. Enbridge is providing such education through its ongoing and robust engagement process.
(ii) First Nations, Infrastructure and Indigenous Participation with Major Resource Projects:
15. The AMC filed a report by Dr. Ken Coates titled, First Nations, Infrastructure and Indigenous Participation with Major Resource Projects (the “Coates Report”). The Coates Report purports to address, inter alia, a First Nations’ approach to resource projects, revenue sharing and other economic opportunities for Aboriginal groups, and Aboriginal engagement, including the suggestion in the Coates Report for “best practices and opportunities for cooperation with First Nations.”
16. Dr. Coates states in his Statement of Qualifications that he “do[es] not purport to speak on behalf of First Nations or the Metis Nation or claim to fully understand their positions on resource and infrastructure developments.” Indeed, there is no indication in the Coates Report that Dr. Coates spoke to any First Nations or Aboriginal communities about the L3RP.
17. At page 11 of the Coates Report, Dr. Coates states that the L3RP “was initially undertaken with little or no consultation”. Enbridge’s publicly-filed records of engagement with Aboriginal communities about the L3RP show otherwise and speak for themselves. Enbridge’s engagement has been both thorough and uncommonly geographically expansive, involving dialogue with Aboriginal communities with Reserve lands that are over 200 km from the pipeline route. The statement at p. 12 of the Coates Report about Enbridge having only engaged with First Nations with Reserve lands within 1 km of the pipeline route is incorrect.
18. Much of the Coates Report consists of a summary of various developments across Canada over a span of decades, explaining how Aboriginal communities were engaged (including economically). The summarized developments run the gamut. They include, for example, localized projects with certain and significant impacts on one or a small number of individual First Nations, and also expansive greenfield pipeline projects through untreatied territory (e.g., Enbridge’s Norman Wells and Northern Gateway projects).
19. Enbridge explained in its application to the NEB that the L3RP is being developed in a previously disturbed corridor that has been in use (including by pipelines) since the 1950s. The L3RP is a replacement project that involves the replacement of an old pipeline with one that is newer over a span of approximately 1,073 km. Very few Crown lands are impacted by the L3RP and only a fraction of those Crown lands are Enbridge Pipeline Inc. Reply Evidence of Enbridge Pipelines Inc. Application for the Line 3 Replacement Program Filed November 27, 2015 OH-002-2015 File OF-Fac-Oil-E101-2014-11 02 Page 10 of 62
unoccupied such that they can be used by members of Aboriginal communities for traditional purposes. (Precisely what Crown lands are impacted by L3RP is outlined in Section G, Enbridge’s reply to the written evidence of Michel First Nation.)5 Furthermore, impacts that may occur on such lands are limited temporally to the construction phase of the Project.
20. Despite the land tenure and the nature of the Project, Enbridge embarked on a very extensive engagement program.
21. Furthermore, Enbridge, as part of its engagement program, has succeeded in negotiating engagement agreements with some First Nations and Aboriginal communities. Engagement agreements aside, Enbridge also remains committed to providing Project-related benefits to First Nations and Aboriginal communities in accordance with Enbridge’s Aboriginal and Native American Policy. By doing so, Enbridge has provided Project-related benefits to First Nations and Aboriginal communities despite the Project involving the replacement of old infrastructure and the private tenure of the impacted lands, and even though few, if any, Project-specific impacts have been confirmed.
22. The conclusion of the Coates Report is noteworthy. There, he states that “First Nations have the right to expect that their interests will be respected and that approval and development processes will take their concerns, needs and aspirations into account.” Enbridge agrees, which is why Enbridge has, and will continue to carry out, a comprehensive engagement program. Enbridge’s engagement program conforms to the best practices that are listed at pages 75 and 76 of the Coates Report and Dr. Coates has not concluded otherwise.
23. Furthermore, notwithstanding that AMC is not a rights-bearing entity, Enbridge proactively reached out to AMC to ensure that it was well informed and engaged in relation to the Project, to the extent they were willing to be involved in such discussions. Enbridge carried out this engagement in parallel to engagement with individual rights- bearing First Nations who hold membership in the AMC. Enbridge will continue to engage with Aboriginal groups throughout the life cycle of the Project to ensure any new Project related interests or concerns continue to be addressed.
(iii) Enbridge Response to the Recommendations proposed by Mr. Kruk Report:
24. The AMC filed a report by Mr. Gerry Kruk titled, Public Policy and the Pipeline Industry, Regulatory Best Practices re Pipeline Integrity and Emergency Response Measures (the “Kruk Report”). Enbridge’s responses to certain recommendations contained within this report are set discussed further below.
25. At Enbridge, safety is the number one priority. The main purpose of the Line 3
5 This is confirmed in Michel First Nation’s written evidence. Enbridge calculates the percentage taken up as consisting of 95% privately-tenured lands and 4.5% occupied Crown lands.
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Replacement Program is to enable the continued safe and reliable transport of crude oil. Enbridge’s commitment to safety involves collaborating with key industry associations and non-government organizations to share information on best practices as well as incorporating important lessons learned from incidents and near misses in the pipeline industry. The majority of the recommendations made in the Kruk Report are things that Enbridge is already doing, to various degrees, as part of its standard practice.
26. Recommendation 1 Part 1:
Enbridge should conduct the following pipeline inspections, at the times indicated:
a) a high resolution in-line caliper inspection (i.e., a GEOPIG™ inspection) within 6 months after commencing the operation of Line 3 to establish an accurate pipeline position and to detect pipe deformations;
b) an in-line ultrasonic crack detection inspection within 2 years after commencing operations;
c) an in-line corrosion magnetic flux leakage inspection in both the circumferential and longitudinal directions within 2 years after commencing operations;
d) an in-line ultrasonic wall measurement inspection within 2 years after commencing operations; and
e) an above-ground coating survey within 2 years after commencing operations.
27. Enbridge Response:
As part of its standard practice, Enbridge conducts baseline inspections on all newly constructed pipelines. Baseline inspections for this Project will include the following:
a) High resolution geometry inspection (target within 12 months of the in-service date);
b) Crack inspection (target within 12 months of the in-service date);
c) Metal loss inspection (target within 12 months of the in-service date);
d) Alternating Current Voltage Gradient (“ACVG”) or Direct Current Voltage Gradient (“DCVG”) inspections (this type of inspection cannot be completed within the first 6 months due to soil resistivity and compaction; a minimum of 6 months after backfill is required for the soil to settle around the pipe); and
e) Above-ground coating survey (within 2 years after line fill).
See Enbridge’s response to NEB IR 5.13 [Exhibit B30-02].
28. Recommendation 1 Part 2:
Enbridge should investigate all dents greater than 2 per cent of pipe diameter to ensure Enbridge Pipeline Inc. Reply Evidence of Enbridge Pipelines Inc. Application for the Line 3 Replacement Program Filed November 27, 2015 OH-002-2015 File OF-Fac-Oil-E101-2014-11 02 Page 12 of 62
they are free of gouges and not associated with a weld, and must report to the NEB, within 30 days of each field investigation, any defects that were identified and repaired.
29. Enbridge Response:
As a matter of standard practice, Enbridge excavates and repairs all post-construction dents greater than 2 per cent of the nominal pipe diameter for 12 inch (outside diameter 323.9 mm) and larger. This will include the pipe installed for this Project, which has a nominal pipe diameter of 36 inches (914.4 mm). In addition, Enbridge excavates and repairs ovality greater than 5 per cent of the nominal pipe diameter as well as top dents that occur above the 4:00 and 8:00 position (upper two thirds), greater than 1 per cent.
30. Recommendation 3:
If Line 3 is approved, Enbridge should be required to file with the NEB, at least 90 days prior to commencing operations, a report describing the final design of the pipeline’s SCADA and leak detection systems. The report should be required to include information helpful for establishing a baseline for the quality program for these SCADA and leak detection systems. The report should also be required to include:
a) a description of the SCADA and leak detection systems;
b) the locations and types of pressure, temperature and flow monitoring, control devices, and remote terminal units;
c) the locations of remotely-operated valves;
d) the target detectability (i.e., amounts leaked, time to detect, leakage rate);
e) the target sensitivity (i.e., minimum leak size);
f) the target reliability (i.e., false alarm rate, failure to alarm rate);
g) the expected system robustness (i.e., system availability considering system operating conditions);
h) the target accuracy (i.e., size and location of a detected leak); and a description of the quality program that Enbridge will implement during pipeline operations to ensure optimal performance.
31. Enbridge Response:
This information has been provided in Enbridge’s Response to NEB Information Request (“IR”) No. 6.3 filed contemporaneously with this filing. For further information pertaining to the L3RP supervisory control and data acquisition (“SCADA”) and leak detection systems, please refer to the following:
• Appendix 4-6 - Factsheets and Brochures Provided at Coffee Talks Part 3 of 4 [Exhibit B1-16]; Enbridge Pipeline Inc. Reply Evidence of Enbridge Pipelines Inc. Application for the Line 3 Replacement Program Filed November 27, 2015 OH-002-2015 File OF-Fac-Oil-E101-2014-11 02 Page 13 of 62
• Chapter 9 Operations [Exhibit B4-42];
• Enbridge Response to Ermineskin Cree First Nation, Siksika Nation and Ocean Man First Nation Band (Nations) IR No. 1.3.3 [Exhibit B18-07];
• Enbridge Response to Natural Resources Canada IR No. 1.5 – 1.8 [Exhibit B18- 19];
• Enbridge Response to Province of Manitoba IR No. 1.4 [Exhibit B18-21]; and
• Enbridge Response to Manitoba Metis Federation IR No. 1.12 [Exhibit B18-13]
• Enbridge response to NEB IR No. 6.3
32. Recommendation 4:
In its Line 3 application, Enbridge indicated that it planned to use four approaches for leak detection, each with a different focus and featuring differing technology, resources and timing. Used together, these four methods provide an overlapping and comprehensive leak detection capability: The four are:
a) Control monitoring through the SCADA system
b) Visual surveillance and
c) Scheduled line balance calculations
d) Computational pipeline monitoring (CPM)
It is recommended that Enbridge add a fifth Leak Detection System (LDS) to the four already identified by Enbridge: the regular use of acoustic ILI’s to detect very small leaks.
33. Enbridge Response:
Consistent with the Enbridge response to Ermineskin Cree First Nations IR No. 3.3 [Exhibit B18-07], Enbridge performed an evaluation of two different acoustic in-line inspection leak detection technologies and has selected a new technology with the capability of detecting small release volumes. This technology is complementary to the other leak detection methods outlined above. Enbridge will employ this acoustic in-line leak detection technology when appropriate, to assist in the detection of leaks.
34. Recommendation 5:
Design and construct Line 3 to ensure that conditions that may lead to column separation (slack flow) do not occur, and also have additional instrumentation in place in areas where there is a higher risk of column separation to minimize operational impacts to leak detection and control systems. Enbridge Pipeline Inc. Reply Evidence of Enbridge Pipelines Inc. Application for the Line 3 Replacement Program Filed November 27, 2015 OH-002-2015 File OF-Fac-Oil-E101-2014-11 02 Page 14 of 62
35. Enbridge Response:
For the Project, there are a number of key factors that minimize both the likelihood of column separation occurring as well as operational impacts in the event that it does occur.
The phenomenon of column separation is most heavily influenced by the elevation profile of a pipeline. The risk of experiencing column separation is greater when large changes in elevation are present. However, these risks can be managed effectively when the elevation profile is known and the pipeline is designed and operated appropriately.
In the case of the Project, Enbridge has the benefit of having operated Line 3, as well as several other pipelines following the same route (the Enbridge Mainline system), for many years. Historically, Enbridge has been successful in managing the risk of column separation along this route. The existing control systems and operating procedures are well established for Line 3 and other pipelines in Enbridge’s Mainline system. The route for the replacement Line 3 pipeline was designed to primarily follow the existing route for Line 67 in Canada. Enbridge operators are accustomed to the existing features of the Line 3 and Line 67 elevation profiles and are experienced in managing the risks of column separation for this route.
The location of the new pump stations and facilities on the Project were also selected to coincide as closely as possible with the existing pump stations and facilities on Line 3. This design approach allows Enbridge to leverage the existing operating experience, procedures, and control systems that have been successful in managing the risk of column separation in the past.
Additionally, the diameter and Maximum Operating Pressure (“MOP”) for the replacement Line 3 pipeline are greater than the existing Line 3 pipe, which significantly decreases the risk of column separation. Larger diameter pipe (NPS 36 instead of NPS 34) will result in fewer pressure losses, which will provide a greater margin between normal operating pressures and any high points in the pipeline that could pose a risk of column separation. A greater MOP also allows for greater margins to be maintained between the normal operating pressures and any high points in the pipeline. The greater MOP also provides more flexibility and room for operators to control the system during startup, shutdowns, and abnormal operating conditions without experiencing column separation.
Finally, Enbridge is planning to install a suite of new instrumentation for the Project including additional flow, pressure, and temperature measurement. These instruments will contribute to enhancing the ability to detect leaks, including at locations where there is a higher risk of column separation.
36. Recommendation 6 (paragraph 50): Enbridge Pipeline Inc. Reply Evidence of Enbridge Pipelines Inc. Application for the Line 3 Replacement Program Filed November 27, 2015 OH-002-2015 File OF-Fac-Oil-E101-2014-11 02 Page 15 of 62
Enbridge should file with the NEB, on or before a particular annual date after the first, third, and fifth full years after commencing the operation of the new Line 3, and every firth year thereafter, a report describing the results of its quality program for its SCADA and leak detection systems and how identified issues were addressed.
37. Enbridge Response:
This recommendation comes from the Northern Gateway Project and should not be applied to the Project. Unlike for the Northern Gateway Project, Enbridge has been operating pipelines along the proposed Line 3 replacement pipeline route for many years and has a proven record for safe and reliable operation using the existing SCADA and Leak Detection systems.
38. Recommendations 7 and 8:
Enbridge should be required to file with the NEB for approval, at least 6 months prior to commencing construction of Line 3, its final valve location assessment for the pipeline that provides calculated maximum release volumes based on 10-minutes of pressurized release followed by another 3-minute to fully close the SDVs.
As part of this assessment, Enbridge must provide:
a) calculated maximum volume release and elevation plots;
b) valve location tables with valve location, description, and rationale;
c) for each 10-kilometre-long section, a rationale for why the maximum release volume within that section is as low as reasonably practicable; and
d) full-bore release and spill extent mapping.
Enbridge should use its Intelligent Valve Placement (IVP) program to identify the most effective location for the SDVs based on their potential volume reduction, proximity to sensitive areas such as water crossings, drinking water sources, populated areas, and ecologically and otherwise sensitive areas. Enbridge must also explain why it believes that the maximum release volume between valves is as low as reasonably practicable including the impact of using manually operated valves instead of remotely operable valves. Enbridge must submit the results of its IVP study prior to applying for Leave To Open (LTO).
39. Enbridge Response:
The IVP Report for the Line 3 Replacement Program has already been filed (in response to Nations IR No. 3.2.e – [Exhibit B18-12]. The IVP report addresses all of the items in recommendations 7 and 8. The IVP program optimizes valve locations along the pipeline in order to reduce the maximum potential release volume to as low as reasonably practicable along the entire pipeline, including at all watercourse crossings, mitigating the potential impacts to people and the environment. Enbridge Pipeline Inc. Reply Evidence of Enbridge Pipelines Inc. Application for the Line 3 Replacement Program Filed November 27, 2015 OH-002-2015 File OF-Fac-Oil-E101-2014-11 02 Page 16 of 62
40. Recommendation 9:
To reduce the duration and volume of a potential pipeline spill into a waterway, consider specific examples of design enhancements such as the following:
• thicker pipe;
• additional block valves;
• complementary leak detection systems;
• re-routing the pipelines away from major rivers, wherever feasible;
• trenchless river crossings, wherever feasible;
• review crossing locations;
• develop site-specific spill management and tactical spill response plans
• proactively locate spill containment and recovery equipment at key crossingas and control points
• conduct full-scale spill response exercises to provide the best possible proof of spill response capability
41. Enbridge Response:
This is a list of considerations routinely utilized by Enbridge when designing watercourse crossings, to ensure that the watercourses crossed by Enbridge pipelines are adequately protected from product spills or emissions.
42. Recommendation 10:
Some farmers may be concerned with or opposed to having the Line 3 pipeline built across their active farmland. They may be concerned that the construction process will adversely affect farming operations and crop growth by excessive disturbance to the topsoil, compaction of soil, interference with crop rotation, and possibly through the introduction of pathogens.
These are important concerns for farmers. However, it is often possible to mitigate the potential adverse effects described through careful planning and control. Therefore, if Enbridge encounters such agricultural concerns, it should engage in detailed consultations with the farmers in question to develop a mutually acceptable construction plan before beginning construction across their lands. (While a pipeline company is knowledgeable about pipeline construction, a farmer has valuable experience-based expertise on the nature and behaviour of his farmlands.) To assist the parties in reaching an agreement, they may request alternative dispute resolution assistance from the NEB. Enbridge Pipeline Inc. Reply Evidence of Enbridge Pipelines Inc. Application for the Line 3 Replacement Program Filed November 27, 2015 OH-002-2015 File OF-Fac-Oil-E101-2014-11 02 Page 17 of 62
43. Enbridge Response:
Enbridge has engaged with all of the farmers along the proposed route for the Project.
Ongoing engagement and consultation activities will continue with the farmers and other landowners during the Project construction phase and into operation. Special conditions in relation to each individual farmer’s lands are discussed, reviewed and captured on special condition forms and agreed upon prior to construction commencing. This information is then documented on a construction line list which will be provided to the construction crews. All concerns raised by landowners and farmers are tracked and addressed.
During construction, Enbridge will have land representatives present to act as liaisons between landowners and Enbridge construction supervisors to address any issues that arise. The vast majority of land representatives on the Project have a farming background, which provides them with a good basis for identifying and rectifying potential issues.
44. Recommendation 11:
Enbridge should refine and enhance its comprehensive Emergency Response Plans with Tactical Response Plans. These TRP’s are site-specific and therefore more detailed ERP’s for select high consequence areas and for selected scenarios. Their purpose is to provide first responders with a pre-developed plan of action for a predefined scenario, in a given sensitive or challenging location. The focused scope of a tactical response plan allows for the enhanced preparedness of responders to that scenario. The comprehensive ERP and TRP’s must be filed in advance of LTO and shared with first responders and interested communities and landowners, including First Nations.
45. Enbridge Response:
Enbridge has developed a new Integrated Contingency Plan (“ICP”) for the Central Region Response Zone and an associated Emergency Response Action Plan. These documents address the elements outlined in the recommendation. In particular, they detail proactively placed emergency response equipment, procedures for a range of hazards and situations, and other resource information used in a response. First responders are encouraged to provide comments at any time on Enbridge’s Emergency Response Action Plan to help guide improvement. Enbridge also provides information and training to local first responders regarding safe response to pipeline emergencies through its Public Awareness Program and online training program.
Additionally, Enbridge has identified detailed tactical response strategies (Control Point Mapping) that guides emergency response in specific areas, types of watercourses and water bodies. These strategies are used by Enbridge’s first responders, and provide pre-determined locations or control points from which spill containment and recovery operations may be conducted with the expectation of a high degree of success. Enbridge Pipeline Inc. Reply Evidence of Enbridge Pipelines Inc. Application for the Line 3 Replacement Program Filed November 27, 2015 OH-002-2015 File OF-Fac-Oil-E101-2014-11 02 Page 18 of 62
Enbridge leverages its Control Point Mapping and tactical response training to select and implement containment and recovery tactics with oil spill response equipment. Environmental Sensitivity Area Mapping has been developed which includes information on sensitive habitats, cultural and heritage sites, seasonal wildlife and water intake information.
46. Recommendation 12:
a) Prior to commencing operations of Line 3, Enbridge must complete full-scale exercises to test the following two scenarios, one of which must be unannounced:
i) a full-bore rupture under ice and snow conditions;
ii) a full-bore rupture into a major river in Manitoba under peak flow conditions;
b) Enbridge must conduct each exercise with the objectives of testing:
i) emergency response procedures;
ii) company personnel training;
iii) communications systems;
iv) response equipment;
v) safety procedures; and
vi) the effectiveness of its liaison and continuing education programs.
c) Enbridge must file with the NEB, within 60 days after completing each exercise, a report on the exercise that includes:
i) the results of the completed exercise;
ii) areas for improvement; and
iii) steps to be taken to correct deficiencies.
47. Enbridge Response:
As part of its standard practice, Enbridge conducts emergency response exercises to test the effectiveness of its emergency response plans and ICPs and of its personnel training programs. Together with ongoing training, emergency response exercises provide members of the Field Response Team and Incident Management Team with opportunities to enhance their basic knowledge, skills, and practical experience necessary to perform safe and effective spill response operations. Enbridge’s emergency response exercise program is designed to meet the requirements of the National Preparedness for Response Exercise Program (“PREP”) Guidelines
Enbridge conducts several annual emergency response exercises in and around its Enbridge Pipeline Inc. Reply Evidence of Enbridge Pipelines Inc. Application for the Line 3 Replacement Program Filed November 27, 2015 OH-002-2015 File OF-Fac-Oil-E101-2014-11 02 Page 19 of 62
operations in Manitoba. Enbridge maintains exercise records, which are available to the Board upon request.
48. Recommendation 13:
A committed effort should be made by pipeline proponents, with the “encouragement” of the NEB, to work cooperatively with concerned stakeholders to jointly achieve beneficial involvement in project planning and the collaborative resolution of pipeline risk disputes. This can be accomplished through the joint creation of an appropriately structured multi- stakeholder advisory committee. This committee can encourage trust and build credibility through sharing control between the proponent and stakeholders, with the work of the committee focusing primarily on the stakeholders’ concerns. Typical risk issues may be the adequacy of the pipeline safety and emergency response equipment and systems that decrease both the possibility and consequences of a spill.
49. Enbridge Response:
Please refer to Enbridge’s response to NEB IR No. 6.1 in relation to the proposed multi- stakeholder advisory committee.
(iv) Working at Building Sustainable Relationships
50. The AMC filed a report by Dr. Patricia Fitzpatrick, titled Working at Building Sustainable Relationships (the “Fitzpatrick Report”). The Fitzpatrick Report focuses on Project- related follow-up and monitoring.
51. Part 5 of the Fitzpatrick Report (starting at paragraph 67) includes a list of recommendations to make the Project’s follow-up and monitoring accord with the author’s perception of “adaptive management” principles. At paragraph 68, however, Dr. Fitzpatrick notes that AMC does not endorse her recommendations, or any of them: “While the review was taken on behalf of the Assembly of Manitoba Chiefs, it [AMC] does not endorse any particular recommendation, nor the suite of recommendations as a whole”.
52. This Reply to the Fitzpatrick Report is responsive to Dr. Fitzpatrick’s recommendations.
53. Recommendation 1:
Augment the EPP sections on Emergency Planning & Spill Response
54. Enbridge Response:
Paragraph 72 of the Fitzpatrick Report recommends “that Enbridge develop a planning protocol immediately rather than wait for an emergency to occur” in relation to safety and spill management. This recommendation misconstrues the purpose of the Environmental Protection Plan (“EPP”) which relates to construction-related environmental impacts only. The EPP does not contemplate the Project’s operational phase. Enbridge Pipeline Inc. Reply Evidence of Enbridge Pipelines Inc. Application for the Line 3 Replacement Program Filed November 27, 2015 OH-002-2015 File OF-Fac-Oil-E101-2014-11 02 Page 20 of 62
In addition to the EPP, Enbridge has several systems in place to proactively manage the safe construction, operation, maintenance and long-term integrity of its pipelines and facilities, including measures for spill prevention and spill response. See Enbridge’s response to recommendations 11 and 12 of the Kruk Report, Section A iii) of this document.
Enbridge maintains a comprehensive Emergency Response Plan in its Operation and Maintenance Manual (“O&MM”) Book 7: Emergency Response. This plan includes responsibilities, policies and procedures and training requirements in the unlikely event of a spill during pipeline operations.
The Fitzpatrick Report (at paragraph 70) also recommends that the EPP should be strengthened to more clearly communicate and better address community-specific emergency planning. Communication regarding community-specific emergency planning occurs through a number of avenues, including Enbridge’s public awareness program, local first responder training programs, and Enbridge’s ongoing Aboriginal engagement program.
55. Recommendation 2:
Employ First Nations and other Indigenous peoples as Community Liaisons
56. Enbridge Response:
Enbridge has entered into Engagement Agreements with various communities that contemplate the employment of Aboriginal persons as community liaisons, and/or that designate coordinating representatives in respect of the Line 3 Replacement Program. In all instances, however, Enbridge seeks to understand how specific Aboriginal groups want to be engaged and their protocols and preferences for engagement, which do not necessarily include community liaisons or coordinating representatives.
For additional information on the Aboriginal engagement program refer to Chapter 5 of the Application and Section 3.4 of the Environmental and Socio-economic Assessment (“ESA”) [Exhibit B5-02].
57. Recommendation 3:
Develop and maintain a project-specific website
58. Enbridge Response:
Enbridge currently has a Project-specific website that will be maintained throughout the construction of the Project. The website contains relevant Project information such as: Project overview and scope, decommissioning details, pipeline safety, economic benefits, community outreach, Aboriginal engagement, contact information, maps, regulatory information and timelines. The content on the website will continue to be updated as the Project progresses. All NEB filings will also remain accessible to the Enbridge Pipeline Inc. Reply Evidence of Enbridge Pipelines Inc. Application for the Line 3 Replacement Program Filed November 27, 2015 OH-002-2015 File OF-Fac-Oil-E101-2014-11 02 Page 21 of 62
public through the NEB website.
59. Recommendation 4:
Include a requirement for annual reporting
60. Enbridge Response:
Following construction, Enbridge will conduct a Post-Construction Environmental Monitoring (“PCEM”) Program during the first five complete growing seasons after the completion of final clean-up and reclamation, or as required by the NEB. Enbridge will prepare reports to document the results of the PCEM program, which will be made publicly available through the NEB website.
61. Recommendation 5:
Require the proponent to fund an independently-led ex-post (or post hoc) evaluation
62. Enbridge Response:
Enbridge will conduct a robust PCEM program. Typically, Enbridge retains a third party to conduct the PCEM program. The PCEM program will include an assessment of the success of the EPP mitigation measures and recommendations of further reclamation measures, if necessary. The PCEM program methodology is provided in Section 9.0 of the ESA [Exhibit B5-10].
63. Recommendation 6:
The proponent should develop robust monitoring programs
64. Enbridge Response:
The implementation of the PCEM program includes robust monitoring to ensure that mitigation measures are properly implemented and ultimately effective. Recommendations for further mitigation or remediation will be made as warranted during the PCEM program.
The PCEM program will assess the effectiveness of mitigation measures in restoring the physical environment, landscape and soils, vegetation, watercourses and wetlands to their pre-construction state.
Regarding the physical environment, issues related to coarse fragments, contour and draining as well as microtopography and erosion will be documented and delineated where observed. The soil component of the PCEM program will involve a field analysis of the three common construction-related soil issues: subsoil compaction; topsoil depth; and topsoil/subsoil admixing. The vegetation assessment component will include field analysis of three common construction-related vegetation issues: re-establishment of vegetation; weed introduction/weed habitat creation; and success of mitigation for rare Enbridge Pipeline Inc. Reply Evidence of Enbridge Pipelines Inc. Application for the Line 3 Replacement Program Filed November 27, 2015 OH-002-2015 File OF-Fac-Oil-E101-2014-11 02 Page 22 of 62
plant population issues along the Footprint. Watercourse monitoring will be conducted as part of the visual inspection of the construction right-of way. The banks and approach slopes will be monitored for bank stability, morphology, soil erosion, invasive species, soil productivity, revegetation and the effectiveness of erosion control measures at watercourses crossed by isolated or open cut crossing methods. The wetland function PCEM program is designed to document the return of functionality to wetland ecosystems post-construction, and will involve revisiting disturbed wetlands on the construction right of way, focusing on wetlands encountered by the trench line. All unresolved environmental issues associated with the Project will be tracked in an Environmental Issues List (“EIL”). The EIL will form the basis of monitoring activities during the PCEM program.
If the PCEM program identifies an unresolved issue related to construction, assessment of the issue will continue until the issue has been resolved, through the use of adaptive management.
Enbridge also has many other monitoring programs in place to ensure the safe operation of its pipelines, including Line 3. As discussed in Chapter 9 of the application, this includes a SCADA system to monitor and control its pipelines, and a comprehensive leak detection monitoring program. In addition, Enbridge undertakes various routine maintenance and monitoring activities.
Aboriginal input on Enbridge’s monitoring initiatives is achieved through engagement, which will continue through the lifecycle of the Project. Enbridge respects the interests that Aboriginal groups have in environmental monitoring and is exploring potential mechanisms to create and support additional training and education in this area.
65. Recommendation 7:
Engage with Elders and Knowledge Holders to identify actions needed to improve relationships between Enbridge and First Nations and other Indigenous peoples
66. Enbridge Response:
Enbridge acknowledges the importance of engaging with Aboriginal groups. Enbridge previously approached AMC about the implementation of an Elders advisory group to facilitate an exchange of information with Aboriginal knowledge holders to support an increased understanding of cultural and traditional protocols in relation to the construction and operation of the Project. AMC did not respond. Enbridge has nevertheless continued to work with individual groups to understand and address these protocols. Enbridge has participated in land blessing and relationship strengthening ceremonies in respect of the Project and will continue to do so at the guidance and direction of engaged Aboriginal groups.
Enbridge has (and will continue to) seek and foster successful working relationships with Aboriginal groups in the vicinity of its operations. The nature and level of engagement, Enbridge Pipeline Inc. Reply Evidence of Enbridge Pipelines Inc. Application for the Line 3 Replacement Program Filed November 27, 2015 OH-002-2015 File OF-Fac-Oil-E101-2014-11 02 Page 23 of 62
including ways to enhance relationships, will reflect feedback and expressions of interest from the groups. The six steps for Aboriginal engagement outlined by the Canadian Association of Petroleum Producers (as referenced in paragraph 91 of the Fitzpatrick Report) have been considered and are reflected in Enbridge’s engagement efforts.
67. Recommendation 8:
Contribute to First Nations and other Indigenous peoples’ education and training programs
68. Enbridge Response:
Enbridge has entered Engagement Agreements with some Aboriginal various groups that contemplate education and training opportunities. Enbridge has also recently commenced a training-to-employment pilot program. The results of this pilot program will be used to optimize the design and implementation of subsequent training program phases in Manitoba, Saskatchewan and Alberta.
Many of the education and training related interests expressed by Aboriginal groups through the course of engagement with Enbridge have been reflected in the design of the pilot program cited above. This training-to-employment program includes: life skills, safety equipment training, pipeline construction labour training (“pipeline 101”) and heavy equipment operator training. Skills developed in the program are applicable to pipeline work and to other industry sectors.
Enbridge has also agreed to fund scholarships for certain Aboriginal groups on mutually- agreeable terms in accordance with community priorities.
In 2012, 2013 and 2014, respectively, Enbridge provided financial support to 26, 22 and 26 schools and school programs in Aboriginal communities across Alberta, Saskatchewan and Manitoba through its School Plus program. Enbridge is in the process of finalizing its School Plus funding decisions for 2015.
For additional information on the Aboriginal engagement program refer to Section 3.4 of the ESA [Exhibit B5-02].
69. Recommendation 9:
Negotiate impact and benefit agreements with First Nations and other Indigenous peoples
70. Enbridge Response:
Enbridge has entered Engagement Agreements with various Aboriginal groups in proximity to the proposed Line 3 replacement route.
Regarding “impact and benefit agreements”, however, Enbridge has taken the position that it is not necessary for an Aboriginal group to assert or prove an “impact” (i.e. a Enbridge Pipeline Inc. Reply Evidence of Enbridge Pipelines Inc. Application for the Line 3 Replacement Program Filed November 27, 2015 OH-002-2015 File OF-Fac-Oil-E101-2014-11 02 Page 24 of 62
Project-specific impact on how Aboriginal or treaty rights are exercised) to obtain potential benefits from the Project. Anchoring benefits to proof of an “impact” would constrain and limit the benefits that could otherwise be made available to Aboriginal groups where, as here, development is occurring in a decades-old, disturbed corridor that consists overwhelmingly of privately-tenured lands. Indeed, Enbridge has not to date confirmed any Project-specific impacts on Aboriginal traditional practices despite a rigorous engagement program. Enbridge is seeking to facilitate the participation of neighbouring and regional Aboriginal groups in the Project, and to provide reasonable benefits to them, without demanding proof of Project-related impacts.
71. Recommendation 10:
Undertake meaningful discussions with First Nations and other Indigenous peoples about creating independent oversight for the project
72. Enbridge Response:
The NEB provides independent regulatory oversight of the Project throughout its lifecycle. However, as noted in Enbridge’s response to recommendation 7 of the Fitzpatrick Report, Enbridge proposed an Elder’s Advisory Council whereby Aboriginal Elders and knowledge holders could provide input and guidance, though AMC did not express interest in response. In the absence of a supportive response from AMC, Enbridge continues to pursue the underlying objectives with individual rights-bearing First Nations in Manitoba (as well as Saskatchewan and Alberta).
Enbridge Pipeline Inc. Reply Evidence of Enbridge Pipelines Inc. Application for the Line 3 Replacement Program Filed November 27, 2015 OH-002-2015 File OF-Fac-Oil-E101-2014-11 02 Page 25 of 62
B. BEAVER LAKE CREE NATION, ERMINESKIN CREE NATION, OCEAN MAN FIRST NATION, SWEETGRASS FIRST NATION AND SIKSIKA NATION #430 (COLLECTIVELY, THE “NATIONS”)
1. Ermineskin Cree Nation, Ocean Man First Nation, Sweetgrass First Nation, and Beaver Lake Cree Nation jointly filed into evidence a report titled Technical Review and Gaps Analysis of Traditional Land and Resource Use, Socioeconomic Effects, and Cultural Impacts for the Enbridge Line 3 Replacement Program Application, written by Dr. Timothy Clark (“the Clark Report”). Siksika Nation subsequently adopted the Clark Report as evidence. (Ermineskin Cree Nation, Ocean Man First Nation, Sweetgrass First Nation, Beaver Lake Cree Nation and Siksika Nation are the “Nations”.) Enbridge’s response to the technical review and gap analysis presented in the Clark Report is provided in Table 1 below.
Table 1. Technical Review and Gap Analysis Responses Clark Report Item Enbridge Response Gap #1 – Consultation of Guidance Documents The methodological discussion in the Environmental and Socio-Economic Assessment (ESA) is based on “There is inadequate evidence that the current industry and regulatory guidance. The level of methodological sections for incremental and detail provided is consistent with that provided and cumulative assessment consulted the relevant accepted in previous applications to the NEB. guidance documents, particularly from CEAA and the MVRB. A more robust and well-substantiated Enbridge has followed the required regulatory methodological discussion is necessary to assist the requirements of the NEB Filing Manual and CEA Act, reader in determining not simply the criteria by which 2012. The Report identifies 8 documents specifically evidence is assessed, but also the manner in which as being “either listed but not cited anywhere or not evidence is gathered and interpreted.” (page 5 of the listed at all” in the ESA. Enbridge’s rationale regarding Clark Report) each of the identified documents is provided below. 1. CEAA, Assessing Cumulative Effects under the Canadian Environmental Assessment Act, 2012 Document 1 is guidance provided by the Canadian Environmental Assessment Agency (CEA Agency) for projects where the CEA Agency is the responsible authority under the CEA Act, 2012. As the National Energy Board (NEB) is the responsible authority for the L3RP, the guidance does not apply. However, it has been considered generally in cumulative effects methodology. 2. CEAA, Technical Guidance for Assessing Cumulative Environmental Effects under the Canadian Environmental Assessment Act, 2012, Draft Document 2 was released in draft in December 2014, after the Project application was submitted to the NEB, and has not come into effect yet. However, CH2M on behalf of Enbridge has reviewed the Enbridge Pipeline Inc. Reply Evidence of Enbridge Pipelines Inc. Application for the Line 3 Replacement Program Filed November 27, 2015 OH-002-2015 File OF-Fac-Oil-E101-2014-11 02 Page 26 of 62
Table 1. Technical Review and Gap Analysis Responses Clark Report Item Enbridge Response document and the cumulative effects methodology presented in the L3RP ESA generally aligns with the guidance document. 3. CEAA, Reference Guide Considering Aboriginal Traditional Knowledge in Environmental Assessments Conducted under the Canadian Environmental Assessment Act, 2012
Document 3 provides guidance to Environmental Assessment (EA) practitioners and is intended to provide a framework for the consideration of Aboriginal Traditional Knowledge (ATK) during the EA process. Document 3 is guidance provided by the CEA Agency for projects where the CEA Agency is the responsible authority under the CEA Act, 2012. As the NEB is the responsible authority for the L3RP, the guidance does not specifically apply. Various revisions of Document 3 have been available for review and consideration for years and have generally formed the context under which effects assessments are completed. It was updated in March 2015 (after submission of the Project application to the NEB). However, the general intent of the document has remained the same. CH2M has reviewed the updated document and the effects assessment methodology in the Project ESA generally aligns with the updated guidance document. 4. CEAA, Technical Guidance for Assessing Physical and Cultural Heritage or any Structure, Site or Thing that is of Historical, Archaeological, Paleontological or Architectural Significance under the Canadian Environmental Assessment Act, 2012 Document 4 provides technical guidance that informs the preparation of directives by the CEA Agency, such as the Environmental Impact Statement (EIS) Guidelines, and serves as core guidance to project proponents. Document 4 also provides direction to Agency employees throughout the environmental assessment (EA) of a designated project in their interactions with those engaged in a federal EA, such as proponents, federal authorities, Aboriginal groups and the public. Document 4 is guidance provided by the CEA Agency for projects where the CEA Agency is the responsible authority under the CEA Act, 2012. As Enbridge Pipeline Inc. Reply Evidence of Enbridge Pipelines Inc. Application for the Line 3 Replacement Program Filed November 27, 2015 OH-002-2015 File OF-Fac-Oil-E101-2014-11 02 Page 27 of 62
Table 1. Technical Review and Gap Analysis Responses Clark Report Item Enbridge Response the NEB is the responsible authority for the L3RP, the guidance does not specifically apply to the Project. This document was updated in March 2015 (after submission of the L3RP ESA). However, the general intent of the document has remained the same. CH2M has reviewed the updated document and the effects assessment methodology generally aligns with the updated guidance document. 5. Mackenzie Valley Environmental Impact Review Board, Issues and Recommendations for Social and Economic Impact Assessment in the Mackenzie Valley 6. MVRB, Socio-economic Impact Assessment Guidelines 7. MVRB, Status Report and Information Circular: Developing Cultural Impact Assessment Guidelines 8. MVRB, Guidelines for Incorporating Traditional Knowledge in Environmental Impact Assessment Documents 5 through 8 refer to guidelines produced by the Mackenzie Valley Review Board (MVRB). While the MVRB documents do contain general guidance regarding socio- economic and cultural impact assessments, they were determined to be not directly relevant to the Project. The project circumstances and land tenure considered by the Mackenzie Valley Review Board are substantially different from the L3RP (e.g., the majority of the Line 3 pipeline is located on privately owned, cultivated lands, rather than unoccupied Crown land).
Gap #2 – Valued Component Selection Guide A.2.6.1 of the NEB Filing Manual assumes that the identification of potential environmental and “The Proponent does not provide adequate evidence socio-economic effects reflects a valued component that input from the Nations was integrated into the based approach where the valued components could selection and definition of VCs. As such, there is be the broad elements or a representative subset of insufficient evidence the Proponent has integrated those elements. Given the scope of the Project (i.e., a VCs of interest and concern to the Nations.” (page 7 replacement pipeline located predominately on of the Clark Report) privately owned cultivated lands), the identification of the potential environmental and socio-economic effects focused on the broad environmental and socio-economic elements as the valued components. Enbridge Pipeline Inc. Reply Evidence of Enbridge Pipelines Inc. Application for the Line 3 Replacement Program Filed November 27, 2015 OH-002-2015 File OF-Fac-Oil-E101-2014-11 02 Page 28 of 62
Table 1. Technical Review and Gap Analysis Responses Clark Report Item Enbridge Response Through the course of engagement to date, no basis for revising the selection of elements or the assessment of effects on elements has been identified. Enbridge continues to engage with the Nations and has offered support for traditional use studies (see further discussion in the response to Gap #10 below). Traditional land use has been assessed in the ESA, considering subsistence activities as well as the importance of traditional land use as it relates to culture, identity, families and communities. The assessment of traditional land and resource use (TLRU) also considered the connection to biophysical elements (i.e., water quality and quantity, fish and fish habitat, wetlands, vegetation, wildlife and wildlife habitat, and heritage resources) since TLRU is dependent upon these biophysical elements. Enbridge’s commitment is to ensure that information that is provided by Aboriginal groups (general or specific) is respectfully considered, formally responded to and directed to the appropriate business unit for consideration. For example, sites of interest or concern that are proximate or adjacent to the ROW have been forwarded along to Enbridge’s Environment and Construction groups for consideration of mitigation or avoidance strategies and will provide the same information to Enbridge’s Risk Management groups to be considered for dispersion modeling and in emergency response plan development.
Gap #3 – Assessment of Past Impacts Refer to the response to Gap #1 for technical guidance that has been followed. There are no CEA “The assessment of past impacts in the baseline Agency guidance documents currently in force that for cumulative assessment does not meet NEB would require proponents to assess cumulative requirements or CEAA best practices.” (page 10 effects from pre-disturbance baseline. The Project’s of the Clark Report) cumulative effects approach is consistent with guidance provided in the NEB Filing Manual, which defines the baseline that should be considered in the cumulative effects assessment as “the existing environmental and socio-economic setting within the study area” (NEB 2015). The approach of using existing conditions of disturbance as baseline provides an effective method for identifying, evaluating, and mitigating the Project’s contribution to cumulative effects. This Enbridge Pipeline Inc. Reply Evidence of Enbridge Pipelines Inc. Application for the Line 3 Replacement Program Filed November 27, 2015 OH-002-2015 File OF-Fac-Oil-E101-2014-11 02 Page 29 of 62
Table 1. Technical Review and Gap Analysis Responses Clark Report Item Enbridge Response approach does not discount or overlook pre-industrial conditions, as the assessment is framed within the context of existing cumulative impacts that have already occurred on the landscape/watershed.
Gap #4 – Cumulative Effects Methodology The methodology provided in the cumulative effects assessment of the ESA is sufficient and does not “There is insufficient evidence that the methodology require a re-assessment of cumulative effects. Refer for the CEA of socioeconomic VCs meets the to the responses to Gap #1 and Gap #3. regulatory requirement to consult relevant CEAA
guidance documents. As a result, the methodology is The scope of this cumulative effects assessment is inadequately explained and justified.” (page 12 of the project-specific as required under the CEA Act, 2012, Clark Report) which is appropriate for the scale of the Project. According to the CEA Act, 2012, a project-specific cumulative effects assessment need only focus on
regional concerns where the project’s principle activities may incrementally contribute to these concerns. Only those resources that will be directly affected by the project under review, as well as other projects or activities, need to be included in the project-specific cumulative effects assessment.
The cumulative effects assessment was conducted based on the Federal Environmental Assessment Review Office (FEARO) The Authority’s Guide to the CEA Act: Part II: The Practitioner’s Guide (FEARO 1994a), FEARO’s A Reference Guide for the CEA Act: Addressing Cumulative Environmental Effects (FEARO 1994b), FEARO’s A Reference Guide for the CEA Act: Determining Whether a Project is Likely to Cause Significant Environmental Effects (FEARO 1994c), the CEA Agency’s Cumulative Effects Assessment Practitioners Guide (Hegmann et al. 1999), the CEA Agency’s Addressing Cumulative Environmental Effects under the CEA Act, 2012 (CEA Agency 2013), the CEA Act, 2012 and the NEB Filing Manual.
An integrated approach was used for the cumulative effects assessment for the Project due to the fact that it combined elements of qualitative, fine-filter and coarse-filter (landscape) methods appropriate to the scope of the Project and associated issues. Many residual effects were assessed qualitatively due to the fact that the residual effect or element to be assessed did not lend itself to a quantitative assessment and given that the replacement pipeline lies adjacent to existing pipeline rights-of-way for most of its length. Enbridge Pipeline Inc. Reply Evidence of Enbridge Pipelines Inc. Application for the Line 3 Replacement Program Filed November 27, 2015 OH-002-2015 File OF-Fac-Oil-E101-2014-11 02 Page 30 of 62
Table 1. Technical Review and Gap Analysis Responses Clark Report Item Enbridge Response
Gap #5 – Incorporation of Traditional Knowledge All concerns and comments identified during into CEA Aboriginal engagement have been incorporated into the relevant sections of the ESA (e.g., fish and fish “The cumulative-effects methodology does not habitat and vegetation) and were considered in the discuss CEAA guidance regarding the incorporation of effects assessment and cumulative effects TK. Moreover, there is no evidence the TK of the assessment. Key recommendations and mitigation Nations was gathered and incorporated into the measures for such effects are also provided assessment of cumulative effects and no explanation throughout the effects assessment and the Project is provided for this omission. As such, there is EPPs. These include continuing consultation with inadequate evidence the Proponent has met the affected stakeholders and Aboriginal groups regulatory requirement to consult relevant CEAA throughout the life of the Project. The specific guidance documents.” (page 14 of the Clark Report) Aboriginal issues and interests that have been identified to date are included in Attachment 1 to Enbridge Response to NEB IR No. 2.1 [Exhibit number: Filing ID A4Q9X5]. Enbridge’s consultation with Nations is ongoing.
Enbridge has supported certain Aboriginal groups’ interests in completing Traditional Use Studies (TUS) for L3RP in order to identify any potential impacts. Enbridge continues to engage with these First Nations to discuss, understand and address all issues and concerns raised through TUS.
Gap #6 – Inclusion of Traditional Knowledge “Traditional Knowledge” is not defined in the NEB “Evidence from the MVRB suggests the Filing Manual or CEA Act, 2012. Although the incorporation of TK into EIAs improves the guidance document was released after the L3RP prediction and mitigation of potential impacts, application was written, Enbridge’s definition of among other benefits. There is, however, a scarcity traditional knowledge is consistent with that used of clearly-integrated TK in the ESA. As well, the by the CEA Agency Reference Guide Considering Proponent does not provide a definition of TK and Aboriginal Traditional Knowledge in Environmental offers insufficient evidence of whether and how TK Assessments Conducted under the Canadian from the Nations was gathered and incorporated Environmental Assessment Act, 2012, in that it into the impact assessment.” (page 18 of the Clark acknowledges that Aboriginal traditional knowledge Report) is knowledge that is held by, and unique to Aboriginal peoples. This traditional knowledge may
be gathered through Enbridge’s Aboriginal engagement program by direct discussions with Aboriginal groups and resource users, and/or through support of Traditional Use Studies. Each Aboriginal group is best positioned to define the approach they take to design a TUS, based on its own capacity and circumstances, and awareness of community knowledge holders. Enbridge welcomes continued discussion of potential effects on Enbridge Pipeline Inc. Reply Evidence of Enbridge Pipelines Inc. Application for the Line 3 Replacement Program Filed November 27, 2015 OH-002-2015 File OF-Fac-Oil-E101-2014-11 02 Page 31 of 62
Table 1. Technical Review and Gap Analysis Responses Clark Report Item Enbridge Response traditional use with or without a formal study. The Aboriginal Engagement Program, described in Chapter 5 of the Application [Exhibit B1-21) is sufficient to describe the protocols related to gathering traditional knowledge. The specific principles and goals of the Program include working with Aboriginal groups to identify potential impacts on traditional land and resource use and mitigating any potential impacts identified. See also Enbridge’s response to Gap #5. Gap #7 – Definition of Criteria and Range in The descriptions and justification of significance Residual Effects Characterization and Significance criteria used in the ESA are sufficient and the Determination assessment of effects is robust and transparent. The definitions of significance criteria ratings used in the “There is an inadequate definition and justification of L3RP ESA have been used in numerous past ESAs the criteria and terms used to determine the residual- approved by the NEB. The significance for most of the effects characterization and significance potential residual effects was evaluated by determination.” (page 21 of the Clark Report) developing a set of qualitative criteria (including frequency, reversibility, and magnitude) based on those identified by the Federal Environmental Assessment Review Office (FEARO 1994c). Enbridge acknowledges that although medium magnitude effects are not considered “significant” as defined in the ESA, this does not mean that they are unimportant. Mitigation will be implemented to reduce the magnitude of effects as provided in the ESA.
Gap #8 – Inadequate Variables for Significance Enbridge’s methodology for determining significance Determination is consistent with the NEB Filing Manual, applicable CEA Agency guidance and past assessments that have “The variables utilized in the determination of been approved by the NEB. The inclusion of likelihood significance for Project impacts do not conform to as a constituent variable in the significance evaluation NEB and CEAA guidelines and there is no adequate does not contravene the NEB Filing Manual, CEA Act, explanation and substantiated rationale for the 2012 or FEARO guidance document. divergence.” (page 22 of the Clark Report) Enbridge’s definitions of a significant environmental
effect and significant socio-economic effect are consistent with the conjunctive test for determining significance under the CEA Act, 2012.
The first formal Canadian Environmental Assessment Act guidance on significance evaluation dates back to the FEARO reference guide “Determining Whether a Project is Likely to Cause Significant Adverse Environmental Effects” (FEARO 1994b). FEARO (1994b) provided the foundation for practitioners Enbridge Pipeline Inc. Reply Evidence of Enbridge Pipelines Inc. Application for the Line 3 Replacement Program Filed November 27, 2015 OH-002-2015 File OF-Fac-Oil-E101-2014-11 02 Page 32 of 62
Table 1. Technical Review and Gap Analysis Responses Clark Report Item Enbridge Response evaluating significance of environmental and socio- economic effects and also provided the first known reference to the three significance evaluation elements listed in the NEB Filing Manual (NEB 2015). FEARO (1994b) identifies the central test in the original Canadian Environmental Assessment Act as “whether a project is likely to cause significant adverse environmental effects”, which is consistent with CEA Act, 2012. While the FEARO (1994b) guide does describe the three significance evaluation elements as general steps, it emphasizes that “The concept of significance cannot be separated from the concepts of “adverse” and “likely.” (Section 2). It also notes that “… only environmental effects that are both likely and adverse can be considered in the determinations of significance. Environmental effects that are unlikely or are not adverse cannot be considered in significance decisions” (Section 3). Guidance provided by FEARO has informed the combined-step approach applied for the Project, other NEB-approved projects, and other jurisdictions over the last 20 years. More recently the report of the Joint Review Panel for the Enbridge Northern Gateway Project (2013) included a discussion of cumulative effects methodology. That report references the NEB Filing Manual guidance for cumulative effects assessment, and notes that the Panel finds that “… it is standard practice to screen out project effects that are not likely to interact cumulatively with other projects or activities….”. This suggests that likelihood can appropriately be considered prior to a determination of significance in order to help focus an ESA on the most relevant potential effects. The level of incorporation of ecological context into the ESA is sufficient and re-assessment of Project effects with ecological context added as a criterion to determine significance is not required. Ecological context (e.g., levels of existing disturbance; resilience of the receiving environment) is considered in the assessment and forms the background on which all effects were assessed. However, as discussed in Section 6.1 of the ESA, the most important criteria in determining significance were determined to be spatial boundary, reversibility and magnitude. The exclusion of ecological context in the definition of a significant effect is consistent with numerous past Enbridge Pipeline Inc. Reply Evidence of Enbridge Pipelines Inc. Application for the Line 3 Replacement Program Filed November 27, 2015 OH-002-2015 File OF-Fac-Oil-E101-2014-11 02 Page 33 of 62
Table 1. Technical Review and Gap Analysis Responses Clark Report Item Enbridge Response ESAs approved by the NEB. The NEB Filing Manual states that ecological context is one of several criteria that may be useful in assessing the significance of a project’s adverse effects.
Gap #9 – Aboriginal Input into the Significance See response to Gap #5. Determination “The Proponent did not adequately demonstrate that input from the Nations was considered in the determination of significance.” (page 24 of the Report)
Gap #10 – TLRU Baseline Information Sections 5.1.14 and 6.2.14 of the ESA describe traditional land and resource use over the length of “The lack of baseline TLRU data provided by the the whole L3RP and are not specific to each Proponent is not adequately justified and Aboriginal group. Specific land and resource use substantiated. The Proponent has not met the activities and locations were not available at the time regulatory requirements of the NEB or of application. As stated in the ESA, the TLRU conformed to the relevant CEAA guidance.” (page baseline data provided in the assessment completed 28 of the Clark Report) on the Alberta Clipper project is relevant and
applicable to the Project since the Line 3 replacement pipeline will parallel the Alberta Clipper (Line 67) easement for the majority of its route. Enbridge’s efforts to gather baseline TLRU information from Aboriginal groups is discussed in Section 3.4 of the ESA and in Chapter 5 of Volume 1 of the application. Enbridge has been engaging with the Nations for several months and offered to support Traditional Use Studies specific to L3RP. To date, discussions continue, but no Traditional Use Studies have been completed by them. Enbridge will continue to engage the Nations according to their interest and availability, and will consider any traditional use information they wish to provide. While Enbridge recognizes the desire of First Nations to complete traditional use studies, with all due respect, new traditional land use studies are not required to assess the potential impacts of the Line 3 Replacement Program, in particular given the current land tenure and land uses along the right-of-way.
Enbridge Pipeline Inc. Reply Evidence of Enbridge Pipelines Inc. Application for the Line 3 Replacement Program Filed November 27, 2015 OH-002-2015 File OF-Fac-Oil-E101-2014-11 02 Page 34 of 62
Table 1. Technical Review and Gap Analysis Responses Clark Report Item Enbridge Response Gap #11 – Definition of Current TLRU. Enbridge considers “current use” and “present use” “A clear definition of “current use” of lands and to be the present use of land and resources, as resources for traditional purposes is essential to the described by participating communities, as well as collection and assessment of impacts to TLRU.” (page seasonal uses, or intermittent uses, as part of 30 of the Clark Report) sustainable resource use practices. Enbridge’s approach to traditional use studies has never been to
constrain the temporal scope of traditional use and to consider only contemporary traditional activity. The traditional use information that Aboriginal groups provide to Enbridge may include either or both contemporary and historical traditional activities. The time frames used in the assessment of the Project includes the planning, construction, operation and final decommissioning or abandonment phases. These phases encompass the times when the Project could potentially interact with TLRU and other biophysical and socio-economic elements. Gap #12 – TLRU Study Areas The spatial boundaries used for the assessment of “The Proponent has not provided an adequate TLRU are appropriate. A TLRU RSA was not developed explanation for why the TLRU excludes Air Quality because the spatial boundaries of the TLRU LSA and Acoustic Environment study areas. Similarly, encompass and extend beyond the footprint study there is insufficient explanation and evidence for the area to include the water quality and quantity, fish decision not to include a TLRU RSA.” (page 32 of the and fish habitat, wetlands, vegetation, wildlife and Clark Report) wildlife habitat, and heritage resources LSAs, since TLRU is dependent upon these biophysical elements. The water quality and quantity, fish and fish habitat,
wetlands, vegetation, wildlife and wildlife habitat and heritage resources LSAs are described in Sections 5.0 and 6.0 of the ESA (Filing ID A4E6W3 to A4E6W9) and are mapped on Figures 5.1.3-1 to 5.1.3-4, 5.1.7-1 to 5.1.7-3, 5.1.8-1 to 5.1.8-3, 5.1.9-1 to 5.1.9-3, 5.1.10-1 to 5.1.10-3, and 5.1.13-1 to 5.1.13-3, respectively. The potential effects are not anticipated to extend beyond the TLRU LSA; therefore, a broader RSA was not developed.
Air Quality and Acoustic Environment study areas were not incorporated into the TLRU LSA because it is not required as per Table A-3: Filing Requirements for Socio-Economic Elements described in the NEB Filing Manual. With respect to potential impacts to wildlife and harvesters, Air Quality and Acoustic Environment study areas are considered in the Human Health component of socio-economic elements and the wildlife component of the biophysical elements. Gap #13 – TLRU Effects Assessment and Enbridge’s baseline data on TLRU and subsequent Enbridge Pipeline Inc. Reply Evidence of Enbridge Pipelines Inc. Application for the Line 3 Replacement Program Filed November 27, 2015 OH-002-2015 File OF-Fac-Oil-E101-2014-11 02 Page 35 of 62
Table 1. Technical Review and Gap Analysis Responses Clark Report Item Enbridge Response Mitigation assessment of effects on TLRU meets the requirements of the NEB Filing Manual. See also
Enbridge’s response to Gap #3 and Gap #10. “The incremental and cumulative-effects assessment The mitigation measures provided in the application of and mitigation measures proposed for TLRU do not to reduce the severity of effects on TLRU are project- meet the regulatory requirements of the NEB and do specific, and site-specific mitigation for TLRU sites will not conform to the relevant CEAA guidance.” (page be added to the updated EPP prior to construction. 35 of the Clark Report) Consultation with the Nations is ongoing and, to the extent that impacts are identified in relation to either the construction or the operation of the Project, Enbridge will work with the Nations and Siksiki Nation to determine appropriate avoidance or mitigation measures. The lack of cumulative effects assessment for TLRU was due to the fact that Enbridge determined the potential residual effects to be unlikely after the implementation of mitigation measures. In addition, 95% of the land required for the Project is privately- held, most of which is cultivated, and restricting the use of the land for TLRU activities (see also Enbridge’s filed response to Michel First Nation’s evidence). Through ongoing engagement and implementation of mitigation measures identified in the Project-specific EPPs, the likelihood of a residual effect on TLRU was considered to be low. There is no need for Enbridge to amend its residual effects and significance assessment of TLRU in the ESA, as discussed in the response to Gap #10. The general effects described in the ESA remain unchanged. Gap #14 – Economic and Employment Impacts Enbridge has a history of engagement and continues to actively engage with Ermineskin Cree First Nation, “The Proponent has not provided sufficient Sweetgrass First Nation, Ocean Man First Nation, and information regarding the ability of the Nations to Siksika First Nation based on their expressed interest access the potential economic benefits of the Project in and/or proximity to the Project. More recently, (which includes not just capacities but obstacles) or Beaver Lake Cree has self-identified an interest in its specific plans to address these issues and ensure engagement in the Project. Enbridge has engaged members of the Nations are afforded reasonable with all five of these First Nations with regards to opportunities to gain employment and business business and economic participation. contracts.” (page 37 of the Clark Report) In its Aboriginal and Native American Policy, Enbridge commits to providing opportunities for Aboriginal groups and businesses to participate in the Project through contract and employment opportunities when possible. Where Aboriginal business capacity exists in certain service lines, Enbridge has been and Enbridge Pipeline Inc. Reply Evidence of Enbridge Pipelines Inc. Application for the Line 3 Replacement Program Filed November 27, 2015 OH-002-2015 File OF-Fac-Oil-E101-2014-11 02 Page 36 of 62
Table 1. Technical Review and Gap Analysis Responses Clark Report Item Enbridge Response will continue to work to propose scope of work activities to match those capabilities, provided that safety, quality, service provision and market competitiveness can be demonstrated. Furthermore, Enbridge will offer contract opportunities to qualified Aboriginal suppliers and contractors, where appropriate, and encourage joint venture opportunities between Aboriginal and non-Aboriginal businesses when such joint ventures build capacity and support mutual business interests.
Enbridge has recently commenced a training-to- employment pilot program that individual members of First Nations belonging to the Nations group are participating in. It is also anticipated that broader opportunities for training individual members of each of these First Nations (and individual members of other Aboriginal groups) will be made available prior to the start of construction. See also Enbridge’s response to recommendation 8 of the Fitzpatrick Report, Section A iv) of this document. ) An initiative that Enbridge supported was the hosting of reverse trade shows in Manitoba, Saskatchewan and Alberta where smaller Aboriginal businesses and contractors were invited to showcase their services to larger prime contractors likely to be engaged by the Project. In addition, Enbridge has coordinated business showcasing events with numerous individual Aboriginal groups and businesses, offering direct engagement with senior representatives from its supply chain management and construction departments. Currently, Enbridge is engaging with Aboriginal groups to identify future employment opportunities related to Project construction. Gap #15 – Literature and Range of Cultural Impacts Considered Refer to the response to Gap #1 of the Clark Report “The range of potential impacts to cultural well-being regarding the Mackenzie Valley Review Board is inadequate. The failure to consult a wider range of documents. sources on potential cultural impacts of industrial The effects assessment conducted for the Project projects, including the work of the Mackenzie Valley meets the requirements of the NEB Filing Manual, Review Board, means the range of potential cultural and is consistent with effects assessments accepted impacts considered is unduly narrow. The Proponent, by the NEB for other recent major pipeline projects moreover, does not demonstrate that it has properly including the Enbridge Edmonton to Hardisty Pipeline considered other potential cultural impacts and Project (OH-001-2013) and the NGTL North Montney provided justification for why they were not assessed. Project (GH-001-2014). Finally, the Proponent does not provide sufficient evidence of information gathering to support its claim Refer also to the responses to Gaps #10 and #13 Enbridge Pipeline Inc. Reply Evidence of Enbridge Pipelines Inc. Application for the Line 3 Replacement Program Filed November 27, 2015 OH-002-2015 File OF-Fac-Oil-E101-2014-11 02 Page 37 of 62
Table 1. Technical Review and Gap Analysis Responses Clark Report Item Enbridge Response that no concerns regarding impacts to cultural well- regarding collection of baseline information. being were identified.” (see page 40 of the Clark Report)
Gap #16 – Identification of Community Concerns See response to Gap #10 and Gap #14 of the Clark Report. Refer to Attachment 1 to NEB IR 2.1 [Exhibit “Claim that no concerns identified is inadequately B16-03] for a summary of interests and concerns substantiated.” (page 41 of the Report) raised by Aboriginal groups through the course of engagement that were considered in the ESA. Through our ongoing Aboriginal engagement program and through the traditional Use Studies that we have supported to date, Aboriginal groups have had opportunity to identify any potential project impacts, including potential project health related impacts. To this point, the only direct project health related impacts identified by Aboriginal groups are those that would be potentially created through a release event. Enbridge will continue to work with Aboriginal groups to understand these potential concerns to ensure any potential human health impacts arising from construction or operations are minimized. Gap #17 – Health and TLRU Connections Refer to the responses to Gaps #10 and #13 of the Clark regarding the collection of baseline information. “The lack of baseline data for TLRU and the study areas used for health mean the Proponent did not The ESA considers the potential human health effect adequately meet the regulatory requirement to link of the disruption of normal, daily living activities, TLRU and health in its assessment.” (page 43 of the which is considered to include the reduced ability to Clark Report) practice TLU. The potential effects and potential residual effects on TLU that may lead to TLU-related
effects on human health are provided in Section 6.2.14 of the ESA. The Project is not expected to cause human health effects beyond the Human Occupancy and Resource Use (HORU) RSA (i.e., 15 km on both sides of the replacement pipeline route). Therefore, only those Aboriginal groups/Reserve lands which are located within 15 km of either side of the replacement pipeline route or who would potentially conduct TLU activities within the HORU RSA would be expected to experience potential health effects. To date, the Aboriginal Engagement Program had not identified TLU activities in the HORU RSA.
Routine construction and operation activities associated with the Project are not likely to result in potential residual effects that would pose a risk to Enbridge Pipeline Inc. Reply Evidence of Enbridge Pipelines Inc. Application for the Line 3 Replacement Program Filed November 27, 2015 OH-002-2015 File OF-Fac-Oil-E101-2014-11 02 Page 38 of 62
Table 1. Technical Review and Gap Analysis Responses Clark Report Item Enbridge Response human health with the implementation of industry- standard best practices and adherence to regulatory requirements (see Section 6.2.16 of the ESA).
Potential residual effects for human health would be highly unlikely to occur near the Nations, since the nearest Reserve land is located more than 30 km from the Project. Therefore, for the Nations to experience human health effects, they would have to conduct TLU activities within the HORU RSA, during the construction period. Enbridge will continue to work with Aboriginal groups to understand and assess current land use along the right-of-way in order to avoid, reduce or mitigate, as appropriate, potential effects of Project construction on Aboriginal groups including the Nations.
References:
Alberta Environment. 2010. Glossary of Environmental Terms And Acronyms Used in Alberta - Updated February 2010. Environmental Assessment Team, Alberta Environment, Edmonton, AB.
British Columbia Environmental Assessment Office. 2013. Guideline for the Selection of Valued Components and Assessment of Potential Effects. Victoria, BC. v + 39 pp.
Canadian Environmental Assessment Agency. 2013. Operational Policy Statement: Addressing Cumulative Environmental Effects Under the Canadian Environmental Assessment Act, 2012. Available online at: http://www.ceaa-acee.gc.ca/default.asp?lang=En&n=1DA9E048-1. Accessed: December 2013.
Federal Environmental Assessment Review Office. 1994a. The Responsible Authority's Guide to the Canadian Environmental Assessment Act. Part II: The Practitioner’s Guide. Hull, QC. 23 pp.
Federal Environmental Assessment Review Office. 1994b. A Reference Guide for the Canadian Environmental Assessment Act: Addressing Cumulative Environmental Effects. Prepared by the Federal Environmental Assessment and Review office. Hull, QC. 23 pp.
Federal Environmental Assessment Review Office. 1994c. A Reference Guide for the Canadian Environmental Assessment Act: Determining Whether a Project is Likely to Cause Significant Adverse Environmental Effects. Hull, QC. 23 pp.
Government of Saskatchewan. 2014. A Guide to Assessing Projects and Prepared Proposals under the Environmental Assessment Act. Technical Proposal Guidelines, Environmental Assessment Branch.
Hegmann, G., C. Cocklin, R. Creasey, S. Dupuis, A. Kennedy, L. Kingly, W. Ross, H. Spaling and D. Stalker. 1999. Cumulative Effects Assessment Practitioners Guide. Catalogue No. En106-44/1999E. Prepared by AXYS Environmental Consulting Ltd. and the CEA Working Group for the Canadian Environmental Assessment Agency. Hull, QC. 134 pp. Enbridge Pipeline Inc. Reply Evidence of Enbridge Pipelines Inc. Application for the Line 3 Replacement Program Filed November 27, 2015 OH-002-2015 File OF-Fac-Oil-E101-2014-11 02 Page 39 of 62
Joint Review Panel for the Enbridge Northern Gateway Project. 2013. Considerations, Report of the Joint Review Panel for the Enbridge Northern Gateway Project, Volume 2. Publications Office, National Energy Board, Calgary, AB.
National Energy Board. 2015. Filing Manual. Inclusive of Release 2015-01 (June 2015). Calgary, AB.
Yukon Environmental and Socio-economic Assessment Board. nd. Proponent’s Guide to a Project Proposal Submission to a Designated Office. Whitehorse, YT.
Enbridge Pipeline Inc. Reply Evidence of Enbridge Pipelines Inc. Application for the Line 3 Replacement Program Filed November 27, 2015 OH-002-2015 File OF-Fac-Oil-E101-2014-11 02 Page 40 of 62
C. OCHAPOWACE FIRST NATION
1. Ochapowace First Nation submitted written evidence that consisted of a short report authored by Brent McArthur.
2. Starting at page 9, Ochapowace First Nation’s written evidence lists various “concerns” with the Line 3 Replacement Program. This Reply by Enbridge is responsive to those concerns:
(i) “Lack of Proponent commitment to resolve and remediate past contamination along the ROW”
3. Please refer to Attachment 1 to NEB IR No. 3.6.a (Table 3.6.a-1) [Exhibit B20-03] for a list describing the status of known historical contaminated sites within the mainline right- of-way (which includes a number of operating pipelines, including Line 3). Please refer to Attachment 2 to NEB IR No. 3.6.a (Table 3.6.a-2) [Exhibit B20-04] for a list of potential contaminated sites that may affect the mainline right-of-way.
4. Enbridge reviewed the sites in the above mentioned tables as well as the sites described within Table 5.2-1 of Appendix 12 of the ESA [Exhibit B3-10] in relation to the Pilot Butte area of Saskatchewan. On May 20, 1999 a spill was recorded in the Pilot Butte area of Saskatchewan. Enbridge completed remediation of contaminated soils and groundwater and received confirmation from the NEB that the site had been remediated to the applicable guidelines in 2007. The NEB further indicated it considered its file on this matter closed.
5. Enbridge will continue to manage all contaminated sites through its Contaminated Sites Management Program under the processes set out within the NEB Remediation Process Guide. If previously unidentified contamination is discovered, it will be managed and remediated according to the NEB Remediation Process Guide. Enbridge will work with provincial and federal authorities to obtain the applicable approvals and permits that may be required outside of the NEB Remediation Process Guide Requirements.
(ii) “Decommissioning of existing Line 3 Pipeline”
6. Ochapowace First Nation has requested the implementation of “a comprehensive action plan to address and remediate any site along the ROW where past contamination has occurred particularly with respect to past contamination that has taken place near, and on our lands in the Pilot Butte area of Saskatchewan.” As described above, all known and potential contamination associated within the mainline right-of-way are being addressed through the Enbridge Contaminated Site Management Program under the processes set out within the NEB Remediation Process Guide. Respectfully, the existing Line 3 does not traverse Ochapowace First Nation lands in the Pilot Butte area. Rather, the existing Line 3 runs through a corridor that is bounded by Ochapowace First Nation Reserve lands on two sides, but that is titled to Enbridge in fee simple. The respective land interests of Enbridge and Ochapowace First Nation are shown in the following map Enbridge Pipeline Inc. Reply Evidence of Enbridge Pipelines Inc. Application for the Line 3 Replacement Program Filed November 27, 2015 OH-002-2015 File OF-Fac-Oil-E101-2014-11 02 Page 41 of 62
of the Pilot Butte area.
7. As illustrated, the existing Line 3 does not traverse Ochapowace First Nation Reserve lands.
8. Enbridge has proposed a decommissioning plan for the entire Line 3 pipeline as part of its Application (see decommissioning technical report Appendix 7-9 NEB [Exhibit B4-29]) which will apply to the portion of the Line 3 pipeline illustrated in the above map.
(iii) “Inclusion of Traditional Knowledge of Aboriginal Groups”
9. Enbridge described its process for gathering and incorporating traditional knowledge of Aboriginal groups in its response to AMC IR No. 1.22 [Exhibit B18-02]. Known Aboriginal traditional knowledge is incorporated into the ESA for the Project. As outlined in Guide A.2.5 of the NEB Filing Manual, baseline information identified in the environmental and socio-economic setting of the ESA includes both scientific and local traditional knowledge.
10. See also Enbridge’s reply to Gap #6 of the Clark Report, Section B of this document.
(iv) “Historical Archeological Artifacts within the L3RP”
11. Ochapowace First Nation has requested that Enbridge share “any past traditional or historical artifacts that may have been encountered within the original Line 3 corridor”. Enbridge Pipeline Inc. Reply Evidence of Enbridge Pipelines Inc. Application for the Line 3 Replacement Program Filed November 27, 2015 OH-002-2015 File OF-Fac-Oil-E101-2014-11 02 Page 42 of 62
Such artifacts are not available from Enbridge (nor from the Heritage Conservation Branch of the Saskatchewan Ministry of Parks, Culture and Sport) because the existing Line 3 was constructed in the 1950s.
12. Enbridge is currently in the process of completing archaeological and historical resource studies along the proposed Line 3 Replacement pipeline route. Field studies were completed in the summer of 2015 along the length of the replacement pipeline route and reports are currently being prepared for submission to the Saskatchewan Ministry of Parks, Culture and Sport, Archaeological Resources Management Section (“ARMS”) of the Heritage Conservation Branch. Upon request, Enbridge can provide copies to the Ochapowace First Nation after the reports are submitted and accepted by ARMS.
(v) “Proponent/First Nation Engagement Lapsing once NEB Approval is Granted”
13. Consistent with Enbridge’s Aboriginal engagement program, Enbridge will continue to engage with Aboriginal groups on an ongoing basis, throughout the life cycle of the Project. To the extent that site-specific impacts are identified in relation to either the construction or operation of the Project, Enbridge will work with Aboriginal groups to determine appropriate avoidance or mitigation measures.
(vi) “Sufficient Shut-down Valves to properly Isolate Areas where Incidents Potentially Take Place”
14. Enbridge described its approach to the placement of valves in its response to IR No. 3.2 from Ermineskin Cree Nation, Siksika Nation and Ocean Man First Nation [Exhibit B18- 07].
15. For additional information on Enbridge’s valve placement methodology, please also see Enbridge’s response to NEB IR No. 5.8 [Exhibit B30-02].
(vii) “Spill Containment Efficiency and Remediation”
16. See Enbridge’s reply to recommendation 11 of the Kruk Report, Section A iii) of this document.
17. Enbridge has multiple mitigation measures and contingency plans in place to address the unlikely event of a spill. As noted in Enbridge’s response to IR No. 1.40 from the Assembly of Manitoba Chiefs [Exhibit B18-02], most spills are small in nature and extent and can be readily mitigated by implementing the appropriate mitigation measures and contingency plans. Mitigation to eliminate or reduce potential effects of spills on Water and Water Quality are outlined in Section 6.2.3 and 6.2.20 of Enbridge’s ESA [Exhibit B5-09]. Additionally, events such as a pipeline rupture or failure during operations is addressed in the accidents and malfunctions assessment also found at Section 6.2.20 of the ESA [Exhibit B5-09].
Enbridge Pipeline Inc. Reply Evidence of Enbridge Pipelines Inc. Application for the Line 3 Replacement Program Filed November 27, 2015 OH-002-2015 File OF-Fac-Oil-E101-2014-11 02 Page 43 of 62
D. GEORGE GORDON FIRST NATION
1. Lack of an integrated waste management plan:
Waste generated during construction, decommissioning and operation are listed as elements of other environmental concerns. GGFN is of the view that waste management may represent the greatest source of environmental liability arising from the Project. Significant volumes of drilling waste will be generated, and there is a high probability that contaminated soils, PCBs, asbestos and other potentially hazardous wastes may be generated or discovered.
2. Enbridge Response:
Enbridge recognizes that waste generated during construction, decommissioning and operation are significant environmental concerns. Enbridge has developed a comprehensive set of plans and policies to ensure all wastes and other potentially hazardous materials are appropriately controlled and disposed of. General information regarding waste management is provided in Section 3.1.4.5 of Appendix 11 [Exhibit B3- 09] and in Section 5.1.17.5 of the ESA [Exhibit B5-08]. All liquid and solid wastes generated as a result of the Project will be disposed of at an appropriate facility and through appropriate disposal methods. All waste disposal methods will comply with required approvals, licenses and applicable regulations.
3. Lack of a commitment to assess and remediate pre-existing contamination along the ROW:
GGFN feels that it is important for the proponent to develop and implement a clear plan to address and remediate known issues along the existing ROW. It is understood that not all areas can be actively remediated due to site conditions or existing infrastructure, but decommissioning of the existing pipeline offers a unique opportunity to address these areas in a safe manner without compromising project schedules or pipeline operation.
4. Enbridge Response:
5. Enbridge remains committed to assessing and remediating contamination along the existing right-of-way. Enbridge continues to manage all contaminated sites in the Project area through its Contaminated Sites Management Program under the process set out within the NEB Remediation Process Guide (NEB 2011). If previously unidentified contamination in the Project area related to the decommissioned Line 3 is discovered, it will be managed and remediated according to the NEB Remediation Process Guide (NEB 2011).
Enbridge takes responsibility for its contaminated sites and will continue to identify, assess and manage known historical and newly identified sites along the existing Line 3 pipeline right-of-way in the future. If Enbridge has outstanding contaminated sites at the time of abandonment of the last operating pipeline in the corridor, Enbridge will Enbridge Pipeline Inc. Reply Evidence of Enbridge Pipelines Inc. Application for the Line 3 Replacement Program Filed November 27, 2015 OH-002-2015 File OF-Fac-Oil-E101-2014-11 02 Page 44 of 62
remediate sites to the applicable provincial and/or federal guidelines according to the standards of the day.
A listing of the locations of known contamination along the existing Line 3 right-of-way that potentially could affect the right-of-way is listed in Table 3.6.a-1, in association with Enbridge’s response to NEB IR No. 3.6 [Exhibit B20-03]. The construction right-of-way does not encounter any contaminated sites listed on the Federal Contaminated Sites Inventory, as stated in Section 6.2.2.2 of the ESA [Exhibit B5-09]. Key recommendations and mitigation measures for the potential effects relating to existing contamination are described in Sections 6.0 of the ESA [Exhibit B5-09], and include the following:
• Consider soils contaminated if free product is present, the soil is a notably different colour than the surrounding soil (black, shades of grey, blue and green), hydrocarbon odours are present or there is a sheen on excavation water. Immediately notify the Environmental Inspector and/or Construction Manager.
• Implement the Contaminated Soils Discovery Contingency Plan in the event that contaminated or potentially contaminated soils are encountered.
• Follow the remediation procedures outlined in the Contaminated Soils Discovery Contingency Plan in the event that contaminated sites are encountered during construction.
Enbridge is committed to maintaining responsibility for the existing Line 3 right-of-way and will manage contaminated soils in accordance with the applicable regulations. A Project specific Contaminated Soils Discovery Contingency Plan is provided in Appendix D10 of the Pipeline Environmental Protection Plan (Appendix 1A of the ESA [Exhibit B5- 11]). The Contaminated Soils Discovery Plan describes the procedures to be taken if the presence of contaminated soil is suspected, as well as procedures for notifying the appropriate regulatory authorities.
References:
National Energy Board. 2011. Remediation Process Guide. Catalogue No. NE23-156/2011E. Calgary, AB. 13 pp.
Enbridge Pipeline Inc. Reply Evidence of Enbridge Pipelines Inc. Application for the Line 3 Replacement Program Filed November 27, 2015 OH-002-2015 File OF-Fac-Oil-E101-2014-11 02 Page 45 of 62
E. KEESEEKOOSE FIRST NATION
1. Keeseekoose First Nation submitted written evidence that consisted of a short report authored by Brent McArthur, dated September 30, 2015.
2. This Reply by Enbridge is responsive to certain statements about Keeseekoose First Nation’s land holdings in the vicinity of the existing Line 3 on the south side of Regina. It also responds to the following three “concerns” that Keeseekoose First Nation expressed at pages 7 and 8 of its written evidence:
• “Lack of Proponent commitment to resolve and remediate past contamination along the ROW”
• “Decommissioning of existing Line 3 Pipeline”
• “Inclusion of Traditional Knowledge of Aboriginal Groups”
(i) Keeseekoose First Nation Land Holdings
3. At page 5 of Keeseekoose First Nation’s written evidence, Mr. McArthur lists four parcels of lands in or near Regina, SK. He then states: “The existing Enbridge Line 3 right of way traverses across these parcels. The proposed route for the L3RP will run adjacent and to the south of the existing Line 3 right of way.”
4. The listed parcels of land are titled in fee simple to KKTLE Holdings Corp. Enbridge understands that KKTLE Holdings Corp. is a Keeseekoose First Nation-affiliated holding company.
5. Mr. McArthur’s statements about the proximity of the listed parcels to the existing Line 3 and the proposed Line 3 replacement are mistaken. Whereas the route of Alberta Clipper is in close proximity to certain of the listed parcels, the listed parcels are not impacted directly by either the existing Line 3 or by the proposed Line 3 replacement. The following is a map depicting the location of the listed parcels relative to the existing Line 3 and the proposed Line 3 replacement. Enbridge Pipeline Inc. Reply Evidence of Enbridge Pipelines Inc. Application for the Line 3 Replacement Program Filed November 27, 2015 OH-002-2015 File OF-Fac-Oil-E101-2014-11 02 Page 46 of 62
(ii) “Lack of Proponent commitment to resolve and remediate past contamination along the ROW”
6. Please refer to Enbridge’s reply in Section C (i) above.
(iii) “Decommissioning of existing Line 3 Pipeline”
7. Keeseekoose First Nation has expressed an interest in a specific decommissioning plan in relation to the KKTLE Holdings Corp. lands based on Keeseekoose First Nation’s understanding that such lands are traversed by the existing Line 3. As illustrated in the map above, however, that understanding is mistaken. The existing Line 3 pipeline does not pass through the KKTLE Holdings Corp. lands.
8. Enbridge has proposed a decommissioning plan for the entire length of the existing Line 3 pipeline as part of its Application [see decommissioning technical report Appendix 7-9 Exhibit B4-29] which will apply to the portion of the existing Line 3 pipeline depicted in the map.
(iv) “Inclusion of Traditional Knowledge of Aboriginal groups”
9. See Enbridge’s reply in Section C, (iii) above.
Enbridge Pipeline Inc. Reply Evidence of Enbridge Pipelines Inc. Application for the Line 3 Replacement Program Filed November 27, 2015 OH-002-2015 File OF-Fac-Oil-E101-2014-11 02 Page 47 of 62
F. MANITOBA METIS FEDERATION
1. Manitoba Métis Federation (the “MMF”) filed a Traditional Knowledge & Land Use Study for the Southwest Region: Enbridge Line 3 Replacement Project, dated September 2015 (the “MMF Study”). This reply document outlines Enbridge’s general response to the issues and concerns identified by the MMF in the MMF Study.
2. Sections 3.0 and 4.0 of the MMF Study provide information regarding land use and occupancy as well as concerns related to potential environmental and socioeconomic impacts. Section 5.0 of the MMF Study concludes that the Project could potentially impact Métis land use as well as culturally important and sensitive sites. The MMF Study did not identify any site-specific impacts to Traditional Land and Resource Use (“TLRU”). MMF has also not identified site-specific impacts through Enbridge’s ongoing engagement efforts.
3. Enbridge completed an assessment of TLRU as part of the ESA for the Project, using the methods outlined in Section 6.1 [Exhibit B5-09]. At the time the ESA was written, few specific details regarding TLRU were available. However, the assessment considered that traditional land use activities may yet be identified. Potential effects were considered and assessed in the ESA, including potential effects to traditional harvesting sites, cultural sites and trails and travelways (see Section 6.2.14 of the ESA [Exhibit B5-09]). The assessment concluded that with the implementation of the mitigation measures proposed by Enbridge, the effects on TLRU would be of medium magnitude, low probability, short-term duration and reversible and, therefore, not significant.
4. The proposed route for this Project follows a long-established existing utility corridor which contains up to six Enbridge pipelines. Enbridge has over 60 years of operational experience in this corridor. The current land tenure and land use preclude, to a large extent, the practice of traditional activities as approximately 99.5% of the land required for the Project is either privately-held or occupied Crown land, predominantly under cultivation. Therefore there is little opportunity for Aboriginal groups to exercise harvesting rights on impacted lands.
5. Sites identified by the MMF have been mapped in relation to the Project. These maps will inform continued engagement with the MMF regarding potential mitigation measures, where appropriate. For potential impacts to harvesting sites, including hunting, trapping, fishing and plant gathering sites, Enbridge will implement the mitigation measures outlined in the Pipeline EPP (Appendix 1A [Exhibits B5-11, B5-12 and B5-13]) applicable to wildlife and wildlife habitat, fish and fish habitat, vegetation, species at risk, and traditional land and resource use. Enbridge will also discuss mitigation measures with MMF, where appropriate, regarding potential impacts to cultural sites, including sacred sites and gathering areas, located on the Project Footprint or within the LSA. Examples of mitigation measures that may be implemented are avoidance of sacred sites or adjustment of the timing of construction to avoid coinciding with cultural gatherings. Enbridge Pipeline Inc. Reply Evidence of Enbridge Pipelines Inc. Application for the Line 3 Replacement Program Filed November 27, 2015 OH-002-2015 File OF-Fac-Oil-E101-2014-11 02 Page 48 of 62
6. Enbridge has reviewed the findings of the MMF Study and has determined that the conclusions of the ESA with regard to TLRU remain unchanged. Should any site- specific TLRU activities be confirmed during the ongoing engagement with the MMF, the recommended mitigation and avoidance measures set out in the ESA will be implemented as will the TLRU Sites Discovery Contingency Plan.
Enbridge Pipeline Inc. Reply Evidence of Enbridge Pipelines Inc. Application for the Line 3 Replacement Program Filed November 27, 2015 OH-002-2015 File OF-Fac-Oil-E101-2014-11 02 Page 49 of 62
G. MICHEL FIRST NATION
PART I of II
1. On September 30, 2015, Michel First Nation filed written evidence consisting of (a) an analysis of purported gaps and deficiencies in the identification of impacts on the rights of Michel First Nation, and (b) a lands taken up inventory. Enbridge has replied to both submissions by Michel First Nation.
(i) Use of Crown Land:
2. The Project is predominantly located on privately-owned lands and within an existing pipeline corridor and, as such, the Project’s impact on unoccupied Crown land is limited. Crown land comprises an estimated 4.5% of the proposed Project.6 For additional discussion on the use of Crown land, please refer to Enbridge’s response to Michel First Nation’s Lands Taken Up Inventory.
(ii) Engagement Methods:
3. Enbridge has instituted a company-wide Aboriginal and Native American Policy (Appendix 5-1 [Exhibit B1-22]). The policy guides Enbridge’s aboriginal engagement activities which include developing relationships, exchanging information respecting Enbridge projects, hearing aboriginal project-specific interests and concerns, addressing such interests and concerns, and ensuring ongoing dialogue about Enbridge projects, their potential implications and benefits.
4. The Aboriginal Engagement Program has and will continue to involve a number of activities including: mailing out letters and Project information materials, face-to-face meetings and ongoing tracking and follow-up activities for any identified interests or concerns, also including developing engagement protocol principles with potentially affected aboriginal groups that are commensurate with the scope and potential impacts of the L3RP for each aboriginal group; learning about and, to the extent reasonable, mitigating potential impacts on traditional land and resource use and providing opportunities to aboriginal groups to identify interests and potential Project impacts [Exhibit B1-21].
5. Table 5-1 of the Aboriginal Engagement Program lists the Aboriginal groups that have either been identified by Enbridge or have independently come forward as being interested in and/or potentially affected by the Project at the time of application [Exhibit B1-21]. Since that time however, additional Aboriginal groups have been identified. Michel First Nation was not included in the Aboriginal Engagement Program at the outset because it does not have a Reserve or treaty entitlement lands within 80 km of the right-of-way and Enbridge has had no operational history of engagement with Michel First Nation on projects in the same corridor. Enbridge engaged with Michel First Nation
6 As also noted in Enbridge’s response to the Assembly of Manitoba Chiefs evidence, Enbridge calculates the percentage taken up as consisting of 95% privately-tenured lands and 4.5% occupied Crown lands. Enbridge Pipeline Inc. Reply Evidence of Enbridge Pipelines Inc. Application for the Line 3 Replacement Program Filed November 27, 2015 OH-002-2015 File OF-Fac-Oil-E101-2014-11 02 Page 50 of 62
after it was contacted by a law firm that was retained by the Friends of Michel Society. On November 26, 2014, Enbridge provided a comprehensive notification package for the L3RP application filing. Enbridge will continue to engage with Michel First Nation for the purposes of exchanging information respecting the Project, and hearing and addressing any concerns that may be raised, to the extent practicable.
(iii) Assessment Methodology
6. Spatial Boundaries
The spatial boundaries (e.g., Footprint, LSA, RSA) used to evaluate the potential effects of the Project on the environment are presented in Table 6.1.6-1 and in Section 6.2 of the ESA [Exhibit B5-09] for each applicable element. Spatial ecological boundaries were determined by the distribution, movement patterns and potential zones of interaction between an element and the Project.
Specifically regarding the Aquatics and Wetlands RSAs, and as noted in Section 6.2.3.1 of the ESA [Exhibit B5-09], the Aquatics RSA consisted of a 30 km wide band centred on the construction right-of-way (i.e., 15 km on each side). In addition, the RSA was extended along named watercourses with documented presence of fish species of commercial, recreational or Aboriginal interest, to ensure that 30 km of watercourse length was included both upstream and downstream of the crossing locations. For example, the South Saskatchewan River has documented fish species of commercial, recreational or Aboriginal interest, and the RSA for this watercourse was extended approximately 10 km downstream of the RSA boundary to ensure that 30 km of watercourse length downstream of the crossing was included in the RSA. The Wetlands RSA was based, in part, on the Aquatics RSA.
The spatial boundaries used in the effects assessment of TLRU considered one or more of the following areas:
• a Footprint Study Area (as defined in Section 6.1); and
• a TLRU LSA.
The potential effects of the construction and operation of the replacement pipeline on TLRU are primarily assessed within the Footprint. However, TLRU may also extend beyond the Footprint into the TLRU LSA and, consequently, the potential effects on TLRU are also assessed within the LSA.
The spatial boundaries of the TLRU LSA encompass and extend beyond the Footprint to include the water quality and quantity, fish and fish habitat, wetlands, vegetation, wildlife and wildlife habitat, and heritage resources LSAs, since TLRU is dependent upon these biophysical elements. The TLRU LSA ranges from a 110 m wide band to a 2 km wide band extending 55 m to 1 km from the centre line (i.e., 55 m to 1 km on both sides) and Enbridge Pipeline Inc. Reply Evidence of Enbridge Pipelines Inc. Application for the Line 3 Replacement Program Filed November 27, 2015 OH-002-2015 File OF-Fac-Oil-E101-2014-11 02 Page 51 of 62
is considered to be an area where there is a reasonable potential for Project activities to affect existing TLRU (e.g., fishing, hunting and plant gathering) [Exhibit B5-08].
Project-specific potential effects are not anticipated to extend beyond the TLRU LSA. Furthermore, a cumulative effects assessment for TLRU was not considered warranted due to the low probability of residual effects on TLRU (due to limited contiguous Crown land along the proposed pipeline route available for site-specific TLRU, predominance of cultivated lands, and since approximately 96.2% of the proposed pipeline route is contiguous to existing linear disturbances) [Exhibit B5-08].
7. Use of Land Use Plans and land use conflicts
The land use plans outlined in Section 6.0 are relevant to the Project as they are specific to areas along the replacement pipeline route and therefore considered as part of the assessment of potential effects. Many of the goals and objectives of these plans are sufficiently broad to apply to a variety of activities. As such, the goals and objectives listed in the ESA, in some cases are general in nature.
Regarding potential land use conflicts with traditional uses, if interests and concerns are identified through Enbridge’s Aboriginal Engagement Program, activities will be undertaken to better understand, address, satisfy, and/or mitigate, to the extent possible, any Project-related impacts identified. An assessment of Traditional Land and Resource Use is provided in Section 6.2.14 of the ESA [Exhibit B5-09].
8. Identifying and Describing potential effects and residual effects
The potential effects associated with the construction and operation of the pipeline were identified by the assessment team, using professional judgement and experience gained during previous pipeline projects (including those with similar potential effects), and in consideration of input provided by various stakeholders. The assessment considers the potential effects of the Project, based on the Project description described in Section 2 of the ESA [Exhibit B5-01 to B5-02] against the baseline conditions described in Section 5 of the ESA [Exhibit B5-08]. The ecological context of each element is also provided and described in Section 6 of the ESA [Exhibit B5-09].
The methodology for determining potential effects and potential residual effects of the Project is consistent with direction provided in Section A.2.6.3 of the NEB Filing Manual, and is described in Section 6.1 of the ESA [Exhibit B5-09]. Following determination of potential effects, mitigation measures are applied and the potential residual effects are the effects remaining following the implementation of mitigation measures. The potential residual effects are then characterized using the criteria ratings provided in Table 6.1.6-1 in the ESA [Exhibit B5-09] and a determination of significance is made. Enbridge Pipeline Inc. Reply Evidence of Enbridge Pipelines Inc. Application for the Line 3 Replacement Program Filed November 27, 2015 OH-002-2015 File OF-Fac-Oil-E101-2014-11 02 Page 52 of 62
As per the NEB Filing Manual, and as completed in numerous assessments submitted to and accepted by the NEB7, the significance criteria are applied to the potential residual effects, and not the potential effects.
9. Outlining Potential Effects
The assessment considers the potential effects of the Project, based on the Project description described in Section 2 of the ESA [Exhibit B5-01 to B5-02] against the baseline conditions described in Section 5 of the ESA [Exhibit B5-08]. Only those environmental and socio-economic elements anticipated to interact with the Project were considered to have associated potential effects. Regarding decommissioning the existing Line 3 pipeline, the ESA states that some interactions will occur (see Table 6.5- 1 of Section 6.5 of the ESA [Exhibit B5-09]), and potential effects have been assessed accordingly. No interaction with TLRU was identified following the physical act of decommissioning the pipeline since little to no surface disturbance is anticipated.
Aboriginal groups and resource users were given the opportunity to identify interests and concerns with respect to the various elements assessed through Enbridge’s engagement programs. All concerns and comments identified during engagement were identified in Section 3 of the ESA, within applicable technical reports, and again in association with specific elements in Section 6.2 of the ESA [Exhibit B5-09]. However, many of the interests and concerns were general in nature, and did not lend to specific discussions. For example, in the Water Quality and Quantity assessment (see Section 6.2.3-3 of the ESA [Exhibit B5-09]), Aboriginal groups identified concerns regarding effects on ground water and surface water. These general concerns were incorporated into the assessment in that potential effects to both surface and ground water were assessed and applicable mitigation identified.
10. Measurable Parameters
The assessment of potential effects provided in Section 6 of the ESA [Exhibit B5-09] includes both quantitative and qualitative analysis and is consistent with direction provided in Guide A.2 of the NEB Filing Manual, and is described in Section 6.1 of the ESA [Exhibit B5-09].
11. Species at Risk
The ESA includes an assessment of potential effects to Species at Risk (“SAR”). The potential effects and residual effects are listed in Table 6.2.11-3 of Section 6.2.11 of the ESA [Exhibit B5-09].
12. Traditional Land and Resource Use
7 Enbridge to Hardisty Pipeline Project (OH-001-2013), Alberta Clipper Expansion Project (OH-4-2007), Line 4 Extension Project (OH-5-2007) Enbridge Pipeline Inc. Reply Evidence of Enbridge Pipelines Inc. Application for the Line 3 Replacement Program Filed November 27, 2015 OH-002-2015 File OF-Fac-Oil-E101-2014-11 02 Page 53 of 62
An assessment of Traditional Land and Resource Use was completed as part of the ESA using the methods outlined in Section 6.1 [Exhibit B5-09]. At the time the ESA was written, few specific details regarding traditional land and resource use had been identified. However, the assessment considered that traditional land use activities may still occur and potential effects were considered and assessed, including an assessment of potential effects to trails and travelways (see Section 6.2.14 of the ESA [Exhibit B5- 09]).
Through the course of the Aboriginal Engagement Program, Enbridge is working with Aboriginal groups to obtain information on traditional land and resource use. Enbridge will work with the Aboriginal groups to identify site-specific mitigation measures, if and where warranted.
13. Cumulative Effects Assessment
The ESA includes a cumulative effects assessment (see Section 7 of the ESA [Exhibit B5-10]). A description of the existing activities and reasonably foreseeable developments is provided in Section 7.3.1.1, including a very general and approximate date when Aboriginal groups settled throughout Alberta, Saskatchewan, and Manitoba. The date that Aboriginal groups settled throughout Alberta, Saskatchewan and Manitoba varies depending on the source, however an approximate timeframe on when Aboriginal groups settled in the area provides context and background information on existing activities that have been influenced by historic activities and events in the area. A discussion of specific setting characteristics for each element (including traditional land and resource use) is provided in Section 5 of the ESA [Exhibits B5-03, B5-04, B5-05, B5-06, B5-07 and B5-08].
As identified in Section 7.1.1 of the ESA [Exhibit B5-10] the cumulative effects assessment considers those potential residual effects that are considered likely to occur. Due in part to the predominance of private cultivated land along the replacement pipeline route, the discontinuous nature of Crown land, and the implementation of mitigation measures (including working with aboriginal groups to identify site specific mitigation), potential residual effects associated with traditional land and resource use were considered to have a low probability.
(iv) Incorporation of Aboriginal Engagement into ESA
14. Enbridge has instituted a company-wide Aboriginal and Native American Policy (Appendix 5-1 [Exhibit B1-22]). The policy guides Enbridge’s Aboriginal engagement activities which include developing relationships, exchanging information respecting Enbridge projects, hearing Aboriginal project-specific interests and concerns, addressing such interests and concerns, and ensuring ongoing dialogue about Enbridge projects, their potential implications and benefits. Enbridge has, and will continue to, seek and foster successful working relationships with Aboriginal groups in the areas where Enbridge operates. Enbridge Pipeline Inc. Reply Evidence of Enbridge Pipelines Inc. Application for the Line 3 Replacement Program Filed November 27, 2015 OH-002-2015 File OF-Fac-Oil-E101-2014-11 02 Page 54 of 62
15. Aboriginal engagement was initiated by Enbridge in July 2013. Aboriginal groups identified as being either potentially affected by or having an interest in the Project were engaged in order to identify and address interests and concerns about the Project. Information gathered during the course of Enbridge’s engagement with Aboriginal groups was incorporated into the ESA (Sections 3.2, 3.3 and 3.4) [Exhibit B5-02]. Enbridge’s Aboriginal Engagement Program has and will continue to involve a number of activities including: mailing out letters and Project information materials, face-to-face meetings and ongoing tracking and follow-up activities for any identified interests or concerns, also including developing engagement protocol principles with potentially affected Aboriginal groups that are commensurate with the scope and potential impacts of the L3RP for each Aboriginal group; learning about and, to the extent feasible, mitigating potential impacts on traditional land and resource use and providing opportunities to Aboriginal groups to identify interests and potential Project impacts [Exhibit B1-21].
16. The methodology for determining potential effects and potential residual effects of the Project is consistent with direction provided in Guide A.2 of the NEB Filing Manual, and is described in Section 6.1 of the ESA [Exhibit B5-09]. The ESA was compiled based on interests and concerns raised during engagement with Aboriginal groups. Enbridge has incorporated the results of engagement activities to identify the environmental setting (i.e. physical environment) and potential effects for the Project. For the setting, effects assessment and cumulative effects assessment on biophysical and socio-economic elements, please refer to Section 5.1, Section 6.2 and Section 7.2 of the ESA [Exhibits B5-03, B5-04, B5-05, B5-06, B5-07, B5-08 B5-09 and B5-10.
17. Consistent with Enbridge’s Aboriginal Engagement Program, Enbridge will continue to engage with Aboriginal groups on an ongoing basis, throughout the life cycle of the Project. To the extent that impacts are identified in relation to either the construction or operation of the Project, Enbridge will work with Aboriginal groups to determine appropriate avoidance or mitigation measures.
18. Inclusion of Aboriginal Engagement into Baseline Studies and the Effects Assessment
As discussed above, interests and concerns identified during engagement were identified in Section 3 of the ESA [Exhibit B5-02], within applicable technical reports, and again in association with specific elements in Section 6.2 of the ESA [Exhibit B5-09]. However, many of the interests and concerns were general in nature, and did not lend to specific discussions. For example, in the Water Quality and Quantity assessment (see Section 6.2.3-3 of the ESA [Exhibit B5-09]), Aboriginal groups identified concerns regarding effects on ground water and surface water. These general concerns were incorporated into the assessment in that potential effects to both surface and ground water were assessed and applicable mitigation identified.
Where applicable, specific species of interest were identified by reference to harvest limits for commercial, recreational or Aboriginal fisheries under provincial sport fishing Enbridge Pipeline Inc. Reply Evidence of Enbridge Pipelines Inc. Application for the Line 3 Replacement Program Filed November 27, 2015 OH-002-2015 File OF-Fac-Oil-E101-2014-11 02 Page 55 of 62
regulations, as such species are likely to be harvested by commercial, recreational or Aboriginal fisheries.
If interests and concerns are identified through continued engagement with Aboriginal groups regarding Aboriginal land use, activities will be undertaken to better understand, address, satisfy, and/or mitigate, to the extent possible, any Project-related impacts identified. An assessment of Traditional Land and Resource Use is provided in Section 6.2.14 of the ESA [Exhibit B5-09].
(v) Michel First Nation
19. Enbridge has, and will continue to, engage with the Michel First Nation to identify potential Project-specific interests and concerns, address these interests and concerns and ensure that an ongoing dialogue continues. The ESA does not consider potential effects separately and specifically for each Aboriginal group, stakeholder, or landowner potentially affected. Rather, the assessment considers the potential effects of the Project as they relate to all potentially affected groups. It is through ongoing engagement the Michel First Nation that site specific interests and concerns may be identified and addressed.
PART II of II
20. The written evidence of Michel First Nation included a document titled, “Lands Taken Up” Inventory (the “Study”). The focus of the Study, which was funded by Enbridge, relates to the availability of Treaty 6 lands along the pipeline route for the unrestricted exercise of Aboriginal and treaty rights.
(i) Crown Lands
21. In response to the Study, Enbridge prepared a table (Table 1) of directly impacted parcels of unoccupied Crown land along the entire L3RP pipeline route; however Enbridge has not confirmed that any of the parcels in the table are used for traditional purposes. Enbridge has also prepared a series of maps depicting the parcels from Table 1 (Attachment 1).
22. For illustrative purposes, Enbridge has also prepared a series of maps (Attachment 2) to identify all federal and provincial Crown parcels (whether occupied or not) that are either directly impacted by the Project, or that are both adjacent to directly impacted parcels and within 200 m of the mid-line of the L3RP pipeline route.
23. The maps were created using shapefiles that Enbridge provided to Michel First Nation’s representative on August 10, 2015. The re-route information filed by Enbridge in the Project update on May 7, 2015 did not relate to Crown parcels.
(ii) Project Impacts
24. Chapter 7 of the Study contains its results. That Chapter begins with an assessment of Enbridge Pipeline Inc. Reply Evidence of Enbridge Pipelines Inc. Application for the Line 3 Replacement Program Filed November 27, 2015 OH-002-2015 File OF-Fac-Oil-E101-2014-11 02 Page 56 of 62
lands within Treaty 6, the “Project LSA” and the “Project RSA” (as defined in the Study). It explains that 16% of all lands within Treaty 6 are not “taken up” through land tenure or “Exclusion Zone” (also as defined in the Study), so are available to be used for traditional purposes by First Nations. However, 99% of lands within the Project LSA and the Project RSA are unavailable for such purposes because they consist of privately- tenured lands, occupied Crown lands, or they are within a 183 meter-wide Exclusion Zone. Such a result is not surprising given the historical use of the impacted lands over decades, including for pipelines.
25. Respectfully, what is most notable about the Study is the information that it does not contain. Nothing in the Study indicates that any member of Michel First Nation uses unoccupied Crown land along the pipeline route for traditional purposes, or that any traditional activities may be disturbed by the L3RP. Indeed, the land along the replacement pipeline’s route has long been unavailable for such purposes. No appreciable adverse effect on Michel First Nation’s ability to exercise its asserted rights will result from the L3RP Project.
Table 1 Directly Impacted Parcels of Crown Land that are either Unoccupied or that have an Uncertain Occupancy Status Treat Crown Tenanc Land Occupancy y y Status Use Status 8 ALBERTA Portion of 1 4 9 4 6 Alberta No Water Unoccupied NW 7 2 body Portion of SE 1 4 5 4 6 Alberta No Water Unoccupied 9 0 body Portion of NE 1 4 5 4 6 Alberta No Water Unoccupied 8 0 body SASKATCHEWAN NE 3 2 3 3 6 Saskatchewan ‒ Fish and Wildlife Branch No None Unoccupied 4 4 NW 3 2 3 3 4/6 9 Saskatchewan ‒ Fish and Wildlife Branch and the No None Uncertain 10 5 4 Regina Fish and Game League, as joint tenants Portion of SE 1 1 8 2 4 Saskatchewan ‒ Department of Highways No Hay Uncertain 11 7 4 NE 1 1 1 2 2 Saskatchewan No Water Unoccupied 7 2 body MANITOBA NW 5 2 3 1 1 Manitoba No Drainag Uncertain 12 e canal NE 2 1 2 1 1 Manitoba No Drainag Uncertain 0 e canal
8 Occupancy status was determined by Enbridge principally based on tenancy, though certain parcels are listed as having an “uncertain” occupancy status due to potential incompatible use of unleased parcels by the Crown. 9 This parcel is located near the boundary of Treaties 4 and 6. 10 This parcel is not truly Crown land. Rather, it is land owned by the provincial Crown and a non-profit as joint tenants such that a non-Crown entity has rights of ownership to the whole of the land parcel. This parcel has not been identified by any First Nation or Aboriginal group, through the engagement process or otherwise, as a site where traditional practices are exercised. 11 This parcel is designated for hay production; however, the parcel is not leased so it is not clear to Enbridge if it is actively being used by the Crown for that purpose. Regardless, this parcel has not been identified by any First Nation or Aboriginal group, through the engagement process or otherwise, as a site where traditional practices are exercised. 12 These lands contain concrete lined drainage canals. It is not clear to Enbridge if this use has impacted their compatibility for Aboriginal traditional uses. Regardless, these parcels has not been identified by any First Nation or Aboriginal group, through the engagement process or otherwise, as a site where traditional practices are exercised. Enbridge Pipeline Inc. Reply Evidence of Enbridge Pipelines Inc. Application for the Line 3 Replacement Program Filed November 27, 2015 OH-002-2015 File OF-Fac-Oil-E101-2014-11 02 Page 57 of 62
H. PASQUA FIRST NATION
1. Pasqua First Nation submitted written evidence in the form of a letter from Chief M. Todd Peigan. That letter addresses a general environmental concern arising from the location of Pasqua First Nation, being downstream from the Line 3 replacement’s crossing of the Qu’Appelle Valley. Pasqua First Nation therefore requested that a condition be imposed on the certificate for the Line 3 Replacement Program as follows:
That PFN & Enbridge establish an environmental monitoring and protection plan for the Qu’Appelle Valley. The environmental monitoring and protection plan be satisfactory to PFN and Enbridge Pipelines Inc.
2. Enbridge has entered an engagement agreement with Pasqua First Nation. Enbridge has also tabled a proposal to establish a roundtable with Pasqua First Nation and several other First Nations in the Lower Qu’Appelle River Watershed to facilitate exchanges of information about current and projected water conditions and potential approaches for enhanced sustainability planning in the Lower Qu’Appelle River Watershed, though the terms are still being negotiated. Additionally, Enbridge remains committed to implementing appropriate environmental protection during the construction of the Line 3 replacement pipeline and to the ongoing safe operation of the replacement pipeline to protect water resources in the Lower Qu’Appelle River Watershed.
3. Enbridge disputes that any condition should be imposed on the certificate requiring Enbridge to “satisfy” Pasqua First Nation (or any party other than the NEB). Such a condition would make Pasqua First Nation a de facto regulator, which is inappropriate.
Enbridge Pipeline Inc. Reply Evidence of Enbridge Pipelines Inc. Application for the Line 3 Replacement Program Filed November 27, 2015 OH-002-2015 File OF-Fac-Oil-E101-2014-11 02 Page 58 of 62
I. SAMSON CREE NATION
1. Samson Cree Nation submitted written evidence to the NEB in relation to Enbridge’s Line 3 Replacement Program, titled Samson Maskwacis Impact Assessment & Recommendations Report (the “Samson Report”). The first bullet point on page 1 describes the Report as a Traditional & Ecological Knowledge Use Study.
2. The Samson Report lists various areas of concern to Samson Cree Nation at pages 3 and 4. Enbridge has investigated the location of those areas of concern relative to the L3RP pipeline route. In some instances, Enbridge could not determine the location of sites of concern based on the descriptions in the Samson Report. Enbridge sent a letter to Samson Cree Nation on November 10, 2015, inquiring about specific locations however, to date, no substantive response has been received.
3. The following table details where Samson Cree Nation’s sites of concern are relative to the L3RP pipeline route.
Site/Area of Concern Proximity to L3RP Notes Footprint1,2 Tail Creek >120 km west of There are no developments planned in association with the L3RP Footprint for the area surrounding Tail Creek. Hardisty Bison Pound >1 km northwest of The “Proximity to L3RP Footprint” is based on the mapped Footprint perimeter of archaeological sites FdOt-31 and FdOt-32, collectively referred to as the “Hardisty Bison Pound.”
These sites have been included in Alberta Culture and Tourism’s Listing of Historic Resources (ACT 2015) as HRV 3, which indicates that the site “contains a known and significant historic resource that is of great significance and will require avoidance or assessment” (Bodevin 2015).
There are no developments planned in association with the L3RP that would impact the Hardisty Bison Pound. Neutral Hills >15 km southwest The Project Footprint is approximately 15 km northeast of of Footprint Sounding Lake, which is located on the northeast side of the Neutral Hills.
There are no developments planned in association with the L3RP for the area surrounding the Neutral Hills. Leighthead Rock at Uncertain Enbridge could not determine the location of this feature. Sullivan Accordingly, Enbridge has requested clarification from Samson Cree Nation.
Sullivan Lake is approximately 75 km southwest of the Project Footprint. If this site of concern is located at or surrounding Sullivan Lake, neither the feature nor its surroundings will be impacted by the L3RP. Enbridge Pipeline Inc. Reply Evidence of Enbridge Pipelines Inc. Application for the Line 3 Replacement Program Filed November 27, 2015 OH-002-2015 File OF-Fac-Oil-E101-2014-11 02 Page 59 of 62
Big Valley Natural Area ~120 km southwest There are no developments planned in association with the L3RP of Footprint for the Big Valley Natural Area.
The Big Valley Natural Area is at the southeast corner of the Rumsey Ecological Reserve, in NW-14-34-19 W4M. This is an area of native prairie that was formerly a bison wintering area and important habitation area, evidenced by stone circle sites (AFRD and AED 1998). Buffalo Lake >100 km west of Buffalo Lake is distant from the Project Footprint. In its letter of Footprint November 10, however, Enbridge requested clarification about the location of Buffalo Lake in case Samson Cree Nation has identified a different lake with the same name within the Project area.
There are no developments planned in association with the L3RP for the area surrounding Buffalo Lake, as identified on the National Topographic System (NTS) map for the Stettler area (83A/07) and Donalda area (83A/10) (Government of Canada 2013a and 2013b). Sounding Lake – through Portions of this The initial 90-100 km of the Project Footprint crosses lands to Fort Pitt area are crossed situated between Sounding Lake and Fort Pitt (neither of which by Footprint specific locations are located within 15 km of the Footprint). Archaeological and historical resource studies were completed on the proposed right-of-way in Alberta in 2014 and 2015. No archaeological sites were identified, and one historic structure, the Maypole/Flowerdale School (A.D. 1914-1953; HS105563) was observed adjacent to the L3RP Footprint in NE 34-37-1 W4M. The structure will not be impacted by the L3RP construction. Dried Meat Lake ~100 km west of There are no developments planned in association with the L3RP Footprint for the area surrounding Driedmeat Lake. Heart Hill Uncertain Enbridge could not determine the location of Heart Hill. Accordingly, Enbridge has requested clarification from Samson Cree Nation. Traditional Cree Uncertain Enbridge has requested clarification from Samson Cree Nation Encampments about the location of traditional Cree encampments. Lubicon Historical Uncertain Enbridge has requested clarification from Samson Cree Nation Settlement about the location of Lubicon Historical Settlement. Lubicon Lake is over 500 km northwest of the Project Footprint. Battle River Trail >600 m west of There are numerous historic trails that extend to the Battle River. Footprint The nearest trail to the L3RP Footprint (as identified on historic township maps) is at least 600 m west of the L3RP Footprint at the Enbridge Hardisty Terminal and will not be impacted. Chesterfield House >100 km southwest There are no developments planned in association with the L3RP of Footprint for the area surrounding Chesterfield House. The Hudson Bay Company post, Chesterfield House, is located on the south side of the South Saskatchewan River, just east of the Alberta/Saskatchewan border. Meeting Creek >70 km west of There are no developments planned in association with the L3RP Footprint for lands surrounding Meeting Creek. Rib Stones Uncertain No previously recorded rib stone sites (those known to the provincial regulatory bodies) are located along the L3RP. A search of the records held by the Archaeological Survey of Alberta, the Saskatchewan Archaeological Resource Management Branch and the Manitoba Historic Resources Branch have revealed no rib stone sites within a buffer of 2 km surrounding the Project Footprint. Enbridge Pipeline Inc. Reply Evidence of Enbridge Pipelines Inc. Application for the Line 3 Replacement Program Filed November 27, 2015 OH-002-2015 File OF-Fac-Oil-E101-2014-11 02 Page 60 of 62
Cairns Some cairns are in Stone cairn sites have been identified along or adjacent to the close proximity to Project Footprint. When such sites are identified, they are reported the Footprint to the regulatory bodies (Alberta Culture and Tourism [ACT], Saskatchewan Heritage Conservation Branch [HCB] and the Manitoba Historic Resources Branch [HRB]) and recommendations for mitigation (e.g., avoidance or additional assessment) are made.
Avoidance is always the preferred mitigative option for stone features. When avoidance is infeasible, additional assessment is usually required (feature mapping and excavation of a 1x1 m unit, for example). Depending on the results of the assessment, the provincial regulator will either issue clearance to construct through the site or may issue requirements for additional mitigative measures such as full feature excavation.
Information regarding stone cairns identified on or near the Project can be obtained from the provincial regulators (Alberta Culture and Tourism, Saskatchewan Archaeological Resource Management Branch and the Manitoba Historic Resources Branch). Blackfoot Crossing >200 km southwest There are no developments planned in association with the L3RP for lands surrounding Blackfoot Crossing located near Cluny, Alberta. The Forks Crossing Trail Uncertain Enbridge has requested clarification from Samson Cree Nation about the location of the Forks Crossing Trail. Hand Hills >100 km southwest Hand Hills Lake and the Hand Hills Ecological Reserve are located southwest of Hanna, Alberta, more than 100 km southwest of the Project Footprint. Protected Parks There are no developments planned in association with the L3RP for lands in designated parks or protected areas. Cypress Hill Area & Trails Cypress Hill Area: There are no developments planned in association with the L3RP >200 km southwest for lands in or surrounding the Cypress Hills area. No trails within of the Footprint the Cypress Hills will be impacted by the L3RP. Bodo Archaeological Site >9 km southwest of The “Proximity to L3RP Footprint” is based on the mapped Footprint perimeter of archaeological sites FaOm-1 and FaOm-22, collectively referred to as the “Bodo Site Complex.”
Site FaOm-1 is included in Alberta Culture and Tourism’s Listing of Historic Resources (ACT 2015) as HRV 3, which indicates that the site “contains a known and significant historic resource that is of great significance and will require avoidance or assessment” (Bodevin 2015). Site FaOm-22 is listed as HRV 4 (ACT 2015), which indicates that the site “contains a historic resource that may require avoidance or assessment” (Bodevin 2015). There are no developments planned in association with the L3RP for lands in or surrounding the “Bodo Site Complex”. Primary Gathering Areas Uncertain Enbridge has requested clarification from Samson Cree Nation & Species Protection about the location of “Primary Gathering Areas & Species Protection”. Manitou Lake >50 km northeast Proximity is based on the mapped location of Manitou Lake and of Footprint Little Manitou Lake in Saskatchewan (Twp 42, Rge 26 W3M). There are no developments planned in association with the L3RP for the area surrounding Manitou Lake. Notes: 1 Footprint refers to the current footprint for L3RP and excludes the Edmonton to Hardisty portion of Line 3, which was removed from the Project 2 Proximity, when provided, refers only to the available mapped boundaries of a space. The actual area of First Nations concern may be larger or smaller than what has been identified here.
Enbridge Pipeline Inc. Reply Evidence of Enbridge Pipelines Inc. Application for the Line 3 Replacement Program Filed November 27, 2015 OH-002-2015 File OF-Fac-Oil-E101-2014-11 02 Page 61 of 62
References:
Alberta Agriculture, Food and Rural Development (AFRD), Alberta Environmental Protection (AED). 1998. Rumsey Ecological Reserve Management Plan. Alberta Agriculture, Food and Rural Development, Alberta Environmental Protection. Edmonton. Available online at: https://archive.org/stream/rumseyecological00albe (Accessed October 20, 2015).
Alberta Culture and Tourism (ACT). 2015. Listing of Historic Resources. Historical Resources Division, Alberta Culture and Tourism. Edmonton.
Bodevin, P. 2015. “What is the Listing of Historic Resources?” Retroactive: Blogging Alberta’s Historic Places. March 3, 2015. https://albertashistoricplaces.wordpress.com/2015/03/03/what-is-the-listing-of- historic-resources/ (Accessed October 20, 2015).
Enbridge Pipeline Inc. Reply Evidence of Enbridge Pipelines Inc. Application for the Line 3 Replacement Program Filed November 27, 2015 OH-002-2015 File OF-Fac-Oil-E101-2014-11 02 Page 62 of 62
J. WHITEBEAR FIRST NATIONS
1. Enbridge acknowledges the effort made by White Bear First Nation to share its Historical and Current Traditional Land Use Study. The study chronicles the history and culture of the White Bear First Nations over time, based on a review of historical literature and as seen through the eyes and through the recollections of White Bear First Nation Elders and resource users. The study, while not identifying site-specific concerns or potential impacts specific to the Line 3 Replacement pipeline right-of-way, was important nonetheless in aiding Enbridge’s understanding of the importance of White Bear’s traditional territory, and how traditional land use is integral to the White Bear First Nation.
2. While no Project-specific concerns have been identified, as Enbridge’s Aboriginal and Native American Policy describes, Enbridge does respect the traditional ways, heritage sites, and the relationship that White Bear First Nation has with the land and the environment.
3. We do note the identification of the Bethune archaeological burial site, outside of the Line 3 Replacement Program right-of-way but within the general region of Enbridge’s mainline operations. Enbridge looks forward to learning more about this important cultural feature, through ongoing engagement with White Bear First Nation and with other First Nations that have a shared interest in this important regional feature.