August 11, 2020

Kaviq Kaluraq Chairperson c/o Karen Costello Nunavut Impact Review Board Cambridge Bay, NU

Sent via Email: [email protected]

Re: North Baffin Community Group Reply to Baffinland Iron Mines (“Baffinland”) August 4, 2020 Motion Re Setting of Hearing Dates for Mary River Phase 2 Assessment

Dear Ms. Kaluraq:

In response to the Motion circulated by the Nunavut Impact Review Board (NIRB) or Board) with a request for replies, the North Baffin Community Group, made up of the Hamlets and Hunters and Trappers Organizations of the five communities potentially affected by the Mary River Phase 2 proposal, submit based on the grounds below, that the August 4, 2020 Notice of Motion filed by Baffinland, should be dismissed.

Baffinland suggested in its motion that it is fair to all parties for the Board to reconvene the Public Hearing for the Phase 2 Proposal on October 30, 2020.

We submit that it would be premature to schedule a Hearing until such time as a Technical Meeting and Pre-Hearing Conference are held to determine whether the proposal is sufficient to be heard at a hearing, and to determine issues such as the timing, location and format of a Hearing. It would also be inappropriate for the NIRB to determine next steps based on a mo- tion from Baffinland.

It is not fair to all parties to reconvene the Public Hearing in October. Many organizations par- ticipating in the ongoing assessment of Phase 2, including our Hamlets and HTOs, have suf- fered significant limitations on our ability to engage in a normal workload while still remaining vigilant in addressing Covid-19 related safety measures. This is evident on the public record for the project assessment, as filed in comments to the NIRB in March and April 2020.

The Technical Meeting is supposed to allow for the presentation of resolutions by parties, and provides an opportunity for all Interveners and their technical experts to submit questions and engage in discussions with other Interveners and technical experts around resolutions and the pathways used to reach them. It would not be fair to our organizations to remove this step in the process.

The PHC and Community Roundtable session promote the identification of issues to be dealt with at the Hearing and to solicit and consider input from community members related to the technical matters and Proponent commitments under consideration prior to the Hearing. It would not be fair to our communities to remove this step in the process.

On or around April 23, 2020, the Arctic Bay Hunters and Trappers Organization, Hamlet of Clyde River, Igloolik Working Group, Hamlet of Pond Inlet, Hamlet of Sanirajak, Hunters and Trappers Organization of Sanirajak, and EcoJustice on behalf of the MHTO, provided corre- spondence to the NIRB outlining the grave unfairness to community organizations from pro-

!1 ceeding with haste, and via a teleconference format for Technical Meetings. This has not changed.

On April 24, 2020 the NIRB indicated that “prior to proposing a modified process, the Board will solicit comment from prospective participants to ensure their views are fully considered be- fore charting a path forward for this assessment.” This has not happened, however on July 7, 2020, the Qikiqtani Inuit Association wrote to the NIRB and suggested it may be appropriate to recommence the assessment. On July 7, 2020 Baffinland also wrote to NIRB asking for a recommencement of the process, owing to the signing of the Inuit Certainty Agreement (the “ICA”) with the QIA and supposed resolution of many technical issues. On July 24, Baffinland again wrote to the NIRB asking that it move forward with scheduling the Hearing, foregoing the Technical Meeting and PHC.

On July 29, 2020, the NIRB provided direction regarding the recommencement of its process.

On July 31, 2020 the NIRB provided correspondence indicating that the Minister had directed it to recommence the process.

On July 31, and August 6, letters from the North Baffin Community Group were provided to the NIRB outlining concerns related to process steps, and proceeding at this time. We submit that these points all remain relevant to the current discussion around scheduling a Hearing in Octo- ber, and the submissions are enclosed to inform the decision on this Motion.

We submit that the community voices and our concerns are being drowned out by the Propo- nent, and now the Minister. We submit that scheduling further process steps absent input from communities, while at the same time demonstrating a responsiveness to the Proponent’s re- quests, represents a major misstep in the NIRB's process.

Our communities have not had nine months to review information as suggested by Baffinland in its July 24, 2020 correspondence. Five of the last nine months have been spent under or- ders of a Public Health Emergency, which has significantly changed and limited the way people work and has not allowed for normal progress toward review of information as Baffinland sug- gests.

Baffinland’s procedural history references the ICA and resolution status of technical issues it developed with the QIA.

We submit that these resolutions and the ICA must be subject to questions and discussion among technical experts at a Technical Meeting and possibly considered at a Pre-Hearing Conference. Furthermore, Baffinland has not demonstrated that all technical issues are re- solved, or that any issues of high importance have been resolved. We submit that a Technical Meeting and Pre-Hearing Conference are required prior to scheduling a Hearing.

A Community Roundtable was scheduled to be held in March 2020, in order to hear input from potentially impacted communities around technical concerns and issues relevant to the current stage of the assessment. In correspondence filed July 24, 2020, Baffinland suggests a Com- munity Roundtable would be included in the Public Hearing it requests to have scheduled in October 2020.

We submit our concern that that this would mean only one Community Roundtable session would be held, during the Public Hearing as proposed for October 2020. We suggest that this is an unacceptable modification to the process, and one that adversely prejudices community members, and unfairly limits the amount of community input to the NIRB process.

!2 Baffinland has not provided evidence of any significant or meaningful community engagement undertaken since the adjournment of the November 2019 Public Hearing.

Baffinland has not provided evidence of recently improved community comprehension around the Phase 2 proposal.

Baffinland has not provided evidence of recently expressed community support for Phase 2 proposal.

We are unaware if the QIA or Baffinland have adequately presented any aspect of the ICA to communities. It is unacceptable to levy the ICA without adequate and informed consultation and consent of communities to its use in limiting assessment process steps.

The prejudice to the Hamlets and HTOs from expediting the process will greatly outweigh any alleged benefit to the proponent. The ICA has not addressed the concerns of the HTOs or im- pacted communities. In order for the NIRB to uphold their duties to consult these communities and organizations, the previously scheduled Technical Meeting and PHC are significant and cannot be avoided.

In summary, we note the following as grounds to dismiss Baffinland’s Motion:

1. Outstanding technical issues have not been addressed adequately. The ICA was signed without any consultation or agreement of community organizations or residents.

2. The previously scheduled Technical Meeting and Pre-Hearing Conference and associat- ed Community Roundtable are no less important now, given the amount of time that has passed since adjournment of the November 2019 Hearing. The risk of this project and the costs that communities and Inuit would face if the assessment process follows anything other than the highest level of engagement and thoroughness, is too high, and modifications which threaten engagement or thoroughness, are entirely unacceptable.

3. All things are not equal, that is, a nine month delay in the NIRB’s process does not re- flect nine months of effort to address technical issues and develop commitments for a path forward. The request to reschedule the NIRB Hearing does not take into account the major issues the Covid-19 pandemic have caused, and continues to cause for the public and for organizations operating in Nunavut.

We were granted a very short time to respond to Baffinland’s motion. We have been unable to contact the Mayors or HTO Chairpersons in Arctic Bay to discuss it with them. As a result, their names are not on this letter. However, this does not indicate that they support Baffinland’s mo- tion, and we reserve the option to follow up with an Addendum in the coming days at such time as their agreement with this Reply can be confirmed.

Sincerely,

Enookie Inuarak, Vice-Chairperson, Mittimatalik Hunters and Trappers Organization

Joshua Arreak, Mayor, Pond Inlet

David Irngaut, Chairperson, Igloolik Hunters and Trappers Organization

!3 Merlyn Recinos, Mayor, Igloolik

Sandy Kautuq, Chairperson, Clyde River Hunters and Trappers Organization

Jerry Natanine, Mayor, Clyde River

Jopie Kaernerk, Chairperson, Hall Beach Hunters and Trappers Association

Jaypetee Audlakiak, Mayor, Sanirajak

Enclosed: July 31, 2020 correspondence from North Baffin Community Group to NIRB August 6, 2020 correspondence from North Baffin Community Group to NIRB

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July 31, 2020 Marjorie Kaviq Kaluraq Nunavut Impact Review Board P.O. Box 1360 Cambridge Bay, NU X0B 0C0

We, the elected officials of the five communities in the North Baffin Region, are writing to you to today to inform you of serious problems with the proposed timelines for the review of Baffinland’s Mary River Phase 2 proposal. As we have explained in several previous submissions, we are not in favor of resuming meetings and hearings until issues related to COVID are resolved and face-to-face meetings can take place. It remains our position that proceeding now, when full face-to-face meetings is impossible, will be a breach of procedural fairness owed to our residents and members. In any case, our organizations will be unable to submit updated technical comments or prepare for technical meetings in August as proposed. We recommend, at minimum, updated technical comments be requested no sooner than mid-September and the technical meetings be scheduled no sooner than early October. This recommendation is based on the following issues: 1) When the Nunavut Impact Review Board (NIRB) postponed technical meetings in late April, it committed to consulting with interested parties before issuing next steps in this process. We expected to be consulted before these timelines were issued. As a result, we were not prepared to re-start this process with such little notice. 2) Many of our staff, consultants, and board members are on summer holidays. Most of the North Baffin residents that have relevant Inuit Qaujimajatuqangit are currently on the land and harvesting. We also continue to operate with reduced capacity given COVID restrictions and safety protocols. 3) We need more time to consider recent developments in this process, including Baffinland’s recent annual report and the Inuit Certainty Agreement between Baffinland and the Qikiqtani Inuit Association. 4) Recent correspondence from NIRB, Baffinland, and QIA have not been provided in Inuktitut, making it impossible to meaningfully discuss recent developments with unilingual Elders, and Inuit who prefer to operate in Inuktitut, of which there are many. We hope you will seriously consider revising the proposed timelines. We would appreciate having further opportunity to provide our perspectives per your commitment of April 24, 2020. To be clear, we do not support resuming the review process at this time. We do not believe our communities will be able to meaningfully participate in the review process without full face-to-face meetings. The decision to resume the process was made against our wishes and without consulting with us. We would be proceeding in protest and under duress if pressed to 2 | Page resume technical meetings and other procedural steps until such time as we are able to engage in full face-to-face meetings. We would also like you to be aware that we have read the July 24 letter from Baffinland CEO Brian Penny to the Nunavut Impact Review Board. We disagree fundamentally with the arguments and claims in Mr. Penny’s letter and are in the process of preparing a detailed response.

The Mayors and HTO Chairmen of Pond Inlet, Igloolik, Sanirajak, Arctic Bay, Clyde River

Cc: P.J. Akeeagok, President, Qikiqtani Inuit Association Aluki Kotierk, President, Nunavut Tunngavik Incorporated The Honourable Joe Savikataaq, Premier of Nunavut/Minister of Environment The Honourable David Akeeagok, Minister of Economic Development and Transportation David Qamaniq, MLA Tununiq Paul Quassa, MLA Igloolik Joelie Kaernerk, MLA Igloolik/Hall Beach Mumilaaq Qaqqaq, MP, Nunavut The Honourable Daniel Vandal, Minister of Northern Affairs The Honourable Carolyn Bennett, Minister of Crown-Indigenous Relations Stephanie Autut, Executive Director, Nunavut Water Board Brian Penny, CEO, Baffinland Karen Costello, Executive Director, Nunavut Impact Review Board 1 | Page

August 6, 2020

Karen Costello Nunavut Impact Review Board P.O. Box 1360 Cambridge Bay, NU X0B 0C0

Dear Ms. Costello: We, the five affected communities in the North Baffin Region, represented by Mayors and the Hunters and Trappers Organizations, are responding to correspondence from Brian Penney, CEO, Baffinland, dated July 24, 2020. Mr. Penney is arguing for the reconvening of the Public Hearing element of the process, at the earliest possible opportunity. We are responding to the logic and arguments he has advanced in making this request. We are aware that Baffinland has called on the Board, on numerous occasions, to reconvene the Public Hearing. We wish to point out that the Public Hearing was not in process at the time we adjourned. We were holding Technical Meetings. Therefore, there was no Public Hearing to reconvene. The Technical Hearings were to be re-convened. NIRB made a firm commitment to do so. In earlier correspondence with NIRB, Baffinland introduced a questionable ‘numbers game’, intended to give the false impression that most issues have been resolved. It is not the num- ber of issues that is worthy of attention. Not all issues are of equal importance, depth or complexity. To suggest, for example, that 90% of the issues have been addressed assumes and equivalency where none exists. Extremely important and major issues relevant to the impacts on caribou and marine mam- mals remain outstanding, as does the matter of no data or research of any significance di- rected at socio-economic impacts. The problem of dust has not been addressed. Baffinland’s attention to IQ in the work it has done, and the evidence it has submitted in support of its application for approval of the Phase 2 Proposal, is seriously deficient. The issues that remain unresolved are significant. Issues that are contingent on the Inuit Cer- tainty Agreement (ICA) remain outstanding, as the agreement has no force unless approval is given for Phase 2. The NIRB must, according to its terms of reference, base its recommendation on what is known about impacts at the time it makes that determination. It cannot base a decision on what might (or might not) happen should it decide to recommend project approval. The issues that remain outstanding are substantial. NIRB must base its decision on the evidence it has received with the application, and an evaluation of that evidence as takes place at Technical Meetings. 2 | Page

The issues that remain outstanding as referenced by the QIA are (numbers referring to QIA’s submission to NIRB of September 27, 2019): 1. Misalignment between Proponent’s Assessment and Community regarding Caribou and Project Interaction. 2. Effects of Linear Infrastructure on Caribou 3. Insufficient Methods of Collecting and Evaluating IQ 4. Incomplete Data Set with respect to Marine Mammals 5. Influence and Utilization of IQ on Planning and Design of Project 6. Project Alternatives and Community Input 8. Impacts of Food Security 9. Assessment of Culturally Important Vegetation 41. Waterbodies and Effects of Fugitive Dust Deposition and Sediment Transport 42. Impediment of Juvenile Fish through Water Crossings 43. Sediment Redistribution 44. Ballast Water Dispersal 45. Species Introductions 48. Ice Break-Up and Freeze-Up 51. Underwater Noise from Vessels

This is a considerable list of important issues, and it does not encompass all of the outstand- ing concerns and issues of communities and HTOs. NIRB must determine if they have been adequately addressed before it can make a recommendation. Knowing, for example, what the likely impact might be on marine mammals is not something to be explored after the fact. Based on the evidence it has received, NIRB must decide if Baffinland’s activities pose a seri- ous risk or decide that it does not have adequate information to make this determination. This logic applies to all elements in this list. Examining the evidence presented by the propo- nent is the reason for holding Technical Meetings. The Inuit Certainty Agreement is a document that deals primarily with management of project impacts that may occur. This activity would be necessary with or without the Inuit Certainty Agreement. We recognize and appreciate QIA’s efforts to make sure that IQ and Inuit partici- pation are central to Project monitoring and management, however the material submitted in the Inuit Certainty Agreement does not reflect an in-depth consultation with communities or HTOs on their issues and concerns. The Inuit Certainty Agreement is coercive. It promises Inuit certain rewards and benefits if they agree to support the Phase 2 Proposal. If they do not, the Agreement is null and void. This is an attempt to bribe communities with rewards for supporting Phase 2. It is what politi- cians used to do. “If you vote for me, I will give you $5.00.” NIRB cannot and must not take 3 | Page the terms and conditions of a document that serves this purpose into consideration in making its determination. We draw attention to the legislated mandate of the NIRB in responding to Mr. Penney’s claims. Mr. Penney is of the mistaken opinion that the Inuit Certainty Agreement, negotiated with QIA, resolves many of the problems related to Baffinland’s inadequate attention to IQ in the research it has done, and other matters of concern to this inquiry. It does not. The legislated mandate of NIRB is to “review the ecosystemic and socio-economic impacts of project proposals” (at 12.2.2 (c), so that it can “determine, on the basis of its review, whether project proposals should proceed ….”, (at 12.2.2 (d)). To do this, NIRB is compelled to examine the data and information – the evidence - submitted in relation to elements that NIRB has asked Baffinland to consider. NIRB is obligated to make its decision based on that evidence; the accuracy, the incompleteness or lack thereof. A delay in rescheduling the Public Hearing does not constitute “a breach of procedural fair- ness” or the “duty of NIRB to process the application for the Phase 2 Proposal on a timely ba- sis”. Procedural fairness is not a reference to the interests of Mr. Penney. It is something that must consider the interests of all parties to the hearing. Mr. Penney’s self-interest looms large in his correspondence. As communities, we have to consider other matters in relation to our participation. Food security is one of these. This is a season of open water when nearly every family has someone out hunting. Families are camped on the land, something important to our culture and well-being. This is a consideration relevant to the timing of the Public Hear- ings, and to our ability to properly participate in this current discussion and deliberation around the very process now in question. What Mr. Penney’s letter reveals is what has been characteristic of the way in which Baffin- land has conducted its relations with our communities. It shows a lack of respect for our needs and lifestyles and for our practices and traditions. Mr. Penney does not have to worry about food security, of that we are sure. No evidence has been provided in support of the claim in this letter that delays will inflict “disproportional harm to Baffinland”. As communities and HTOs, we need to be sure that any decision made with regard to this project has taken into consideration the quality and accuracy of the information submitted by Baffinland. It must be a decision that takes our concerns and interests seriously. It is not only prejudice to the company interests that NIRB must consider. It is how its decisions might prej- udice the interests of Inuit, and our ability to participate in a process from which a project approval decision has the potential to severely impact our rights, and those of our future generations. With regard to issues that have been resolved between QIA and Baffinland, we now need time to examine those issues to see, as communities and HTOs, whether they have been addressed, and whether any resolutions impact on our own issues still outstanding. We have recently re- ceived the ICA, and still do not have an Inuktitut translation of it. It will take time, working with our technical advisors, to examine the legal document, as well as the techncial materials related to a 230 page technical document submitted by QIA in September of 2019. There is a lot of work to be done, with limited time and resources. We respect and appreciate the difficult decisions that NIRB has to make. We are willing to do our best to accommodate the mandate of NIRB in light of the COVID-19 pandemic. However, we are not prepared to tread lightly in dealing with a project with potentially serious impacts 4 | Page that will permanently affect our children, our children’s children, our culture and an envi- ronment of value and importance to all Canadians.

Respectfully,

The Mayors and HTOs, Pond Inlet, Igloolik, Sanirajak, Arctic Bay, Clyde River

Cc: Mr. P.J. Akeeagok, President, Qikiqtani Inuit Association Ms. Aluki Kotierk, President, Nunavut Tunngavik Incorporated The Honourable Joe Savikataaq, Premier of Nunavut/Minister of Environment The Honourable David Akeeagok, Minister of Economic Development and Transportation David Qamaniq, MLA for Tununiq Mumilaaq Qaqqaq, MP The Honourable Daniel Vandal, Minister of Northern Affairs, PC, MP The Honourable Carolyn Bennett, Minister of Crown-Indigenous Relations, PC, MP The Honourable Jonathan Wilkinson, Minister of Environment and Climate Change, PC, MP The Honourable Bernadette Jordan, Minister of Fisheries, Oceans and the Canadian Coast Guard, PC, MP The Honourable Seamus O’Regan, Minister of Natural Resources Canada, PC, MP The Honourable Marc Garneau, Minister of Transport, PC, MP Ms. Stephanie Autut, Executive Director, Nunavut Water Board Mr. Brian Penney, CEO, Baffinland