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Enbridge Line 21 Pipeline Segment Replacement Project Łíídlįį Kų́ę́first

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Enbridge Line 21 Pipeline Segment Replacement Project Łíídlįį Kų́ę́first Enbridge Line 21 Pipeline Segment Replacement Project Łíídlįį Kų́ę́ First Nation - NEB Evidence Submission June 28, 2017 Secretary of the Board, National Energy Board (NEB) Hearing Order MH-001-2017 and File No. OF-Fac-Oil-E101-2017-07 01 Written evidence of the Łíídlįį Kų́ę ́ First Nation June 28, 2017 Hearing Order MH-001-2017 and File No. OF-Fac-Oil-E101-2017-07 01 1 Overview .................................................................................................. 3 A) Applicable Law .......................................................................................................... 5 B) LKFN Rights, Claims, and Interests in Project Area ........................................ 5 i) The Inherent Rights of the LKFN as an Indigenous People ......................................... 5 ii) The Dene Rights of LKFN .......................................................................................... 6 iii) LKFN Laws of the Harvest ......................................................................................... 7 iv) LKFN Treaty and Traditional Territory ....................................................................... 7 v) Consent is Required ................................................................................................. 8 vi) The Dene Worldview ............................................................................................. 10 vii) Łíídlįį Kų́ę ́ First Nation Governance ......................................................................... 12 viii) Łíídlįį Kų́ę ́ First Nation Decision Making .................................................................. 14 ix) Łíídlįį Kų́ę ́ First Nation Land Use and Occupancy ..................................................... 14 x) LKFN Domestic Water Use and Concerns About Water Quality ............................... 16 xi) Current Łíídlįį Kų́ę ́ First Nation Land Use in the Project Area ................................... 17 xii) Summary ............................................................................................................... 18 C) Enbridge’s Failure to Acknowledge and Address Łíídlįį Kų́ę ́ First Nation’s Rights, Interests, and Concerns Through Their Line 21 Environmental Assessment Application ....................................................................................... 18 i) Dene Ties to the Land ............................................................................................ 18 ii) Old Impacts, New Impacts – Protection of the Land and Dene Rights to Access Healthy Lands ............................................................................................................................. 18 iii) Risks to Łíídlįį Kų́ę ́ First Nation’s Dene Rights from Inadequate Effects Assessment . 19 iv) Project Impacts and Interactions ............................................................................ 21 v) Project Effects, Interconnected Dene Values and Implications to Dene Rights ......... 23 vi) HDD Impacts and Implications ............................................................................... 24 vii) Project Effects on Community Health and Well-Being ............................................ 26 viii) Project Effects on Cultural Heritage ........................................................................ 27 ix) Social and Cultural Impacts of Worker Camps on Indigenous Women ..................... 27 D) Crown Consultation and the Enbridge/LKFN Engagement Process ........ 28 i) The Duty to Consult ............................................................................................... 28 ii) No Meaningful Opportunities to Consult ................................................................ 30 iii) Efforts by LKFN to Engage Enbridge ........................................................................ 31 iv) No Resources Have Been Provided to LKFN ............................................................ 31 v) Failure to Respect LKFN’s Consultation Protocols.................................................... 32 E) Summary and Recommendations ..................................................................... 34 F) Preliminary Conditions and Recommendations for Project Approval .. 36 REFERENCES ................................................................................................................... 38 JURISPRUDENCE ............................................................................................................ 39 Hearing Order MH-001-2017 and File No. OF-Fac-Oil-E101-2017-07 01 2 Overview 1. The Łíídlįį Kų́ę ́ First Nation makes this submission in respect of the Line 21 Pipeline (also known as the Norman Wells Pipeline) Replacement Program (the “Project”). 2. Enbridge proposes to install up to 2.5 kilometres of new 323.9 (NPS 12) pipeline under the Mackenzie River. The new pipe will be installed using a trenchless crossing method called horizontal directional drilling (HDD). Enbridge is also applying to decommission the section of pipeline that is being replaced. The company plans to transport the necessary equipment and materials to the worksite by truck and barge and to carry out the proposed activities within the existing right of way. 3. In support of the Project, Enbridge has applied to the National Energy Board (the “NEB” or “Board”) for an exemption pursuant to section 58 of the NEB Act from the provisions of paragraph 30(1)(b), and sections 31 and 47 in regards to the construction of the Project, and for an order enabling the Project to proceed. Enbridge is also seeking an order pursuant to section 45.1 of the National Energy Board Onshore Pipelines Regulations (OPR) to decommission the segment of the existing pipeline in state. Enbridge styles the Project as nothing more than a “routine replacement” of a segment of Line 21. 4. The Łíídlįį Kų́ę ́ First Nation believes that the Project is nothing of the sort. The Project affects the Dehcho river (also known as the Mackenzie River), which is at the core of Dene traditional territory and the lifeblood of the Łíídlįį Kų́ę ́ First Nation. The lands, animals, and waters in the area of the Project are critical to the cultural identity and integrity of the Dene people and members of the Łíídlįį Kų́ę ́ First Nation (LKFN). The Project is only “routine” in the sense that is a part of a long and terrible history of “routine” infringements and impacts on the lands, rights and way of life of the Łíídlįį Kų́ę ́ First Nation. 5. For thousands of years, the Dene people represented by the LKFN have used; continue to use, and will continue to use the lands and waters intersected by the Project. Their identity is inherently tied to the lands and waters within the area surrounding the Project area. The Dene people never ceded their rights to this land, and have no intention of ever doing so. 6. Enbridge’s submissions in support of the Project vaguely refers to the Indigenous peoples in the region and acknowledges their “assumption” that ‘these people’ may traditionally use the lands in the Project area. This vague and dismissive reference to Indigenous peoples in the region and minimization of their connection to the land is illustrative of their overall indifference to the past and present impacts of Line 21 on the Łíídlįį Kųę́ ́ First Nation and their constitutionally protected Aboriginal and Treaty rights. 7. In LKFN’s assessment, Enbridge has: A. failed to meet the minimal standards set in out their own Indigenous Peoples Policy; Hearing Order MH-001-2017 and File No. OF-Fac-Oil-E101-2017-07 01 3 B. failed to provide the NEB with adequate information necessary to evaluate whether the Project will cause significant adverse environmental and/or socio-cultural effects; and C. failed to meaningfully consult and accommodate LKFN, or to provide a sufficient basis on which the NEB and other Crown decision-makers could meaningfully consult and accommodate LKFN. 8. LKFN accordingly submits that granting Enbridge’s requests for exemptions and orders enabling this Project to proceed will result in infringements on the LKFN’s Dene rights. Accordingly, the NEB, and other Crown decision-makers as applicable, should therefore reserve decisions with respect to exemptions, orders and approvals for the Project until: Enbridge provides sufficient information to satisfy the outstanding Information Requests and other issues that arise during the remainder of the hearing concerning the impacts of the Project on the lands, rights and way of life of the LKFN and other Dene; the potential effects of the Project and its associated facilities and activities are fully determined, and the Crown’s duty to consult and accommodate the LKFN with respect to the Project is fully discharged. 9. In this submission, LKFN provides the NEB with additional evidence concerning the impacts of the Project on LKFN’s lands, rights and way of life, and guidance on measures that should be undertaken to ensure that LKFN community members can continue to uphold their traditional rights, interests, and land use practices in the event that the Project is approved. These measures will help the NEB ensure that that LKFN rights are respected, and that measures are implemented to ensure the specific needs and concerns of LKFN are accommodated. Hearing Order MH-001-2017 and File No. OF-Fac-Oil-E101-2017-07 01 4 A. Applicable Law 10. The LKFN are Dene, who reside on and use LKFN Dene land. They have never ceded or surrendered their land to the Crown. Canada entered into Treaty 11 with LKFN, and LKFN maintains the Treaty
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