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NATIONAL ENERGY BOARD in the MATTER of the National Energy

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NATIONAL ENERGY BOARD in the MATTER of the National Energy 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. ____________________________________________________________________________ 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 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 4 of 62 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. 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 6 of 62 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
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