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

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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.

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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 relationship as the foundation of its dealings with Canada. LKFN understands Treaty 11 as a solemn undertaking of peace and friendship between Canada and the Dene. It was not a surrender of land, but a mutual commitment to ensure that the Dene way of life would remain, without impacts or infringements, for future generations. Accordingly, LKFN maintains Dene rights and title to their lands. The Treaty relationship is also the basis of the Dehcho Process within which Canada and the Dehcho First Nations, including LKFN, are working to conclude modern arrangements to govern their relationship and to manage lands and resources.

11. The United Nations Declaration on the Rights of Indigenous Peoples (“UNDRIP”) affirms, among other things, the right of LKFN to give their free, prior, and informed consent (“FPIC”) to any project or activity before it can proceed on their land. LKFN has never consented to the construction, operation, maintenance, or decommissioning of Enbridge’s Line 21 pipeline on LKFN land.

12. As Indigenous peoples, LKFN have rights enshrined in Canada’s Constitution. LKFN’s rights to hunt, fish, trap, and gather on their land cannot be unjustifiably infringed, and their prima facie claim to Dene title must be respected.

13. The NEB Act, and the Board’s duties to engage in deep and meaningful consultation with LKFN about Enbridge’s proposed Line 21 Project in order meaningfully address the serious risks the Project poses to LKFN rights, must be understood and applied in accordance with the constitutional obligations and international legal principles to which Canada has committed.

B. LKFN Right, Claims, and Interests in Project Area i) The Inherent Rights of the LKFN as an Indigenous People

14. The LKFN has inherent rights to self-government and self-determination, as recognized by Canadian and international law.

15. The United Nations Declaration on the Rights of Indigenous Peoples recognizes certain rights of the LKFN and other Indigenous nations, and obligates Canada and other states to engage with Indigenous peoples in a manner that does not infringe these rights. Of importance are the following enshrined rights and obligations:

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Indigenous peoples have the right to participate in decision-making in matters which would affect their rights, through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own indigenous decision-making institutions.1

Indigenous peoples have the right to determine and develop priorities and strategies for the development or use of their lands or territories and other resources.2

States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.3 ii) The Dene Rights of LKFN

16. LKFN are Dene, and are recognized as Aboriginal people within the framework of Canadian law. In 1921, Canada entered into Treaty No. 11 with LKFN and other Dene. The distinct Aboriginal and Treaty rights—or more properly described, the Dene Rights--of LKFN are protected by s. 35 of the Constitution Act, 1982.

17. The terms of Treaty 11 have been judicially considered, and are an important part of the context for this hearing. After hearing extensive evidence about the signing of Treaty No.11, Dene land use and occupation from LKFN members and other Dene in a case known as the Paulette Caveat,4 Northwest Territories Supreme Court Justice Morrow ruled that LKFN and other Dene in the Northwest Territories have a legitimate claim to Dene title over their lands:

I am satisfied on my view of the facts that the indigenous people who have been occupying the area covered by the proposed caveat come fully within [the criteria for Aboriginal title] and that in the terms of the language of Justice Hall in the Calder case may therefore be “prima facie owners of the lands.5

18. Justice Morrow further found that there was significant doubt concerning the validity of the terms of the written treaty which purported to ‘cede, release and surrender’ Dene land to Canada, and concluded:

1 United Nations Declaration on the Rights of Indigenous Peoples, art 18. 2 United Nations Declaration on the Rights of Indigenous Peoples, art. 32(1). 3 United Nations Declaration on the Rights of Indigenous Peoples, art. 32(2). 4 Re Paulette et al. and Registrar of Titles (No. 2), 42 DLR (3d) 8. 5 Re Paulette et al. and Registrar of Titles (No. 2), 42 DLR (3d) at page 28. Hearing Order MH-001-2017 and File No. OF-Fac-Oil-E101-2017-07 01 6

That notwithstanding the language of [Treaty No. 8 and Treaty No. 11] there is sufficient doubt on the facts that aboriginal title was extinguished that such claim for title should be permitted to be put forward by the Caveators.6

19. Morrow’s granting of a caveat was overturned on appeal, but his findings of fact and law concerning title and rights were never overturned by higher courts. LKFN have never ceded or surrendered their lands or rights to Canada, and maintain their rights and title. On this basis, LKFN have been a party to ongoing land claim and self-government negotiations with Canada since the mid-1970s, first through the Dene-Metis Process, and subsequently, the Dehcho Process, but have not settled any land claim or self-government agreements with Canada or the Government of the Northwest Territories. iii) LKFN Laws of the Harvest

20. The people of the LKFN have lived and relied on the land for millennia and have an accumulated knowledge and understanding of the human place in relation to the universe. This traditional knowledge encompasses spiritual relationships, relationships with the natural environment and the use of natural resources, relationships between people, and is reflected in language, social organization, values, institutions and laws of the LKFN. It is the ancient, communal, holistic and spiritual knowledge that encompasses every aspect of human existence, which has been passed from generation to generation orally and through personal experience and spiritual teachings, and pertains to the identify, culture and heritage of the LKFN.

21. Elders and experienced land users are recognized as being the holders of knowledge about harvesting and the laws of the harvest. Laws of the harvest are based on knowledge of animals, fish, plants, and ecosystems, and on the principal of reciprocity. However, this knowledge is communal, and is for the benefit of all people and the land. Custodians of the knowledge are responsible for ensuring it is passed on from one generation to the next.

22. The laws of the harvest and the associated knowledge is passed on using a pedagogy that is land- based and grounded in participation. These laws are not passed on in the classroom or in books, but rather on the land.

23. The LKFN has always, and continues to manage the harvest of animals, fish, plants and medicines from the land using their own systems of laws and knowledge. iv) LKFN Treaty and Traditional Territory

24. The lands of LKFN have always included the land in and around Fort Simpson, including the project area. Former LKFN Chief Baptiste Cazon’s testimony to this effect during the Paulette Caveat was summarized as follows by Justice Morrow:

6 Re Paulette et al. and Registrar of Titles (No. 2), 42 DLR (3d) at page 40. Hearing Order MH-001-2017 and File No. OF-Fac-Oil-E101-2017-07 01 7

[W]hile his people had no written history, as far back as their memories down through each generation could go, his people had made their homes in the general area of Fort Simpson and that such lands had always been considered to be theirs. According to him, for thousands of years, his people had used the land for hunting and fishing, to obtain food and clothing. They roamed all over the country in pursuit of game.7

25. Canada has recognized Fort Simpson and surrounding land, including the project area, as LKFN when travelling to Fort Simpson to enter into Treaty discussions with LKFN and by ongoing land claim and self-government negotiations with LKFN. v) Consent is Required

26. The duty to consult and accommodate is to be analyzed on a spectrum. The scope and content of that duty will be assessed based on a number of factors including: the prima facie strength of the claim, the significance of the right and potential infringement, and the nature of the potential damage to the claimed right or title.8

27. Claims on the weaker end of the spectrum may only require the Crown “to give notice, disclose information, and discuss any issues raised in response to the notice.” However, where the potential claim is strong and the impact of an infringement will be significant, “deep consultation” will be required.9

28. As set out above, LKFN has established a strong basis for having established rights and title in the immediate area of the Enbridge proposal. LKFN establishes in this evidence submission that the potential adverse impact of an infringement of their rights and title as a result of the Enbridge proposal is significant. LKFN have also established that they have their own laws which govern the use of lands and resources that must be respected.

29. The standard for Treaty interpretation and consideration is set out by the Supreme Court in R. v. Badger10. It requires that the Treaty “be liberally construed and any uncertainties, ambiguities or doubtful expressions should be resolved in favour of the Indians”11 and “interpreted in the sense they would naturally have been understood by the Indians at the time”.12

30. On the basis of Morrow’s findings in Paulette, the LKFN has established, at a minimum, a prima facie case for rights and title in the Project area, and LKFN is owed the deepest duties of

7 Re Paulette et al. and Registrar of Titles (No. 2), 42 DLR (3d) at page 14. 8 Haida, at para. 43. 9 Haida, at para. 44. 10 R. v. Badger, [1996] 1 SCR 771. 11 R. v. Badger, [1996] 1 SCR 771 at para 52. 12 R. v. Badger, [1996] 1 SCR 771 at para 52. Hearing Order MH-001-2017 and File No. OF-Fac-Oil-E101-2017-07 01 8

consultation and accommodation in respect of the Project, including the right to consent to the Project.

31. LKFN maintains that nothing short of their free, prior and informed consent is required. Such consent may be sought in accordance with LKFN laws and governance and through deep and meaningful engagement with the Crown in furtherance of the Treaty relationship.

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vi) The Dene Worldview and the interconnectedness of ecological and cultural wellbeing

32. The Dene world view can be described as being:

based upon the natural world of animals, ecology, aquatic beings and the natural elements: fire, wind, sky and water. The human animal was always interconnected with those elements. The Dene have strong ties to their kinship. The unity of a family structure is important to the whole community. Dene elders teach community members be sensitive to the land, water, sky or universe, and animals and plants because they offer life. People are not directors in that environment but an integrated part of a whole system. The Dene rely on the environment and its species. We do not abuse what the creator has loaned to us to protect, for example; the caribou is not abused and every part of it is used for something and what is not usable is burned13

33. Dene law holds that decisions are made based on the requirement that “the land be left for future generations in as good shape as it was received from ancestors.”14

34. An additional key aspect of interconnectedness in the Dene world view is resilience and the spiritual dimension of living well. This is interconnectedness has been described as follows:

Living well together is a commonly held notion in Dene culture and this concept is expressed in the language...Dene culture’s spiritual dimension has been used to inspire and develop learners. Although these traditional teachings were suppressed for generations, Indigenous people must be credited with the ability of ensuring the continued existence of their traditional cultures and ways of knowing.15

35. In the Dene way all aspects of creation – including, rocks, air, water, fire, animals, plants, and astral bodies like planets and stars – have spirits associated with them, and humans are required to conform to the natural order of creation.16

36. This order, in which humans are dependent on the rest of creation, is described as follows:

Dene oral history teaches that human beings were the last beings to be created. Being the youngest of creation the Dene accept that human beings are the least knowledgeable and least capable of survival on their own in this world.

13 Saskatchewan Indigenous Cultural Centre (n.d.). The Dene World View. 14 “It Was Only a Treaty”: Treaty 11 According to the Dene of the Mackenzie Valley, at page 6. 15 Hansen, J.G. & Antsanen, R. (2016). Elders’ Teachings about Resilience and its Implications for Education in Dene and Cree Communities. The International Indigenous Policy Journal, 7(1). 16 “It Was Only a Treaty”: Treaty 11 According to the Dene of the Mackenzie Valley, at page 15. Hearing Order MH-001-2017 and File No. OF-Fac-Oil-E101-2017-07 01 10

It is the rest of creation which has made it possible for mankind to survive. The rock saw the confusion of human emotions and knew that because of that human beings would have a hard time to communicate. The rock offered to communicate with the Creator for humans if we would ask. The animals agreed to gift themselves to [sic] for food, medicine, clothing and shelter as long as humans lived according to the laws given to [sic] by the spiritual helpers and the One who is above all of creation. The plants agree to give their being for food and medicine.17

37. The Dene have a tradition of sharing information and knowledge, not through written words like the European colonizers introduced, but through oral tradition. Dene oral tradition, like that of many Indigenous cultures, is full of numerous stories of creation and cultural heroes including a distinctive creation story about how the world came to being. Dene stories are divided between the two categories: accounts of reality, and spiritual stories or myths. The former addresses the real-life events of the Dene, whereas the latter concerns itself with the creation of the world and how we came to be.

38. Further, Dene oral tradition is intimately tied to the land. Place names have been described as being “used like library index cards by the Dene.”18 It is thus unsurprising that impacts on the land, however minor they may seem to outsiders, have significant and often disproportionate effects on the LKFN.

39. A report on the Dene way of life for The Royal Commission on Aboriginal Peoples describes the prevalence and use of place names as follows:

Each name has an accompanying story which tells of the historically significant event that took place there. During the 1970’s the Dene Nation sponsored a land use research project which identified about 20,000 place names. Further research by the University of Alberta Department of Anthropology has led at least one person …, formerly from that department, to claim that 50,000 Dene place names in the Mackenzie valley would be a conservative estimate. Some of the stories take up to several days to tell. Others would take only a minute or so. If the average story rounded out to about fifteen minutes to tell, then the 20,000 place name [sic] would fill approximately 20,000 pages of historical information.19

40. The number and breadth of Dene place names is neither incidental nor coincidental. It speaks to and is indicative of a unique and indispensable relationship to the land, which must be considered by the NEB.

17 “It Was Only a Treaty”: Treaty 11 According to the Dene of the Mackenzie Valley, at page 16. 18 “It Was Only a Treaty”: Treaty 11 According to the Dene of the Mackenzie Valley, at page 10. 19 “It Was Only a Treaty”: Treaty 11 According to the Dene of the Mackenzie Valley ,at page 10. Hearing Order MH-001-2017 and File No. OF-Fac-Oil-E101-2017-07 01 11

Photo Credit: Dehcho.org; LKFN Community Gallery Credit: Community Dehcho.org; Photo LKFN vii) Łíídlįį Kų́ę ́ First Nation Governance: Dene laws, values, principles and decision-making

41. LKFN’s traditional and moral authority is informed by Dene laws and values, which are based upon the necessity to act for the collective rather than for the individual interest, and to protect the land from which the people come from.

42. The LKFN shares information and make decisions based on the following 10 Dene Principles:

1. This land was created ‘by the one who provides for all,’ and we come from this land. We recognize our equality with this land and all living creatures.

2. We recognize and respect the natural laws which regulate the cycle of the seasons, the rhythms of the earth, and the ways of the animals.

3. No one individual has the right to own the land. As the ones who come from this land, we have a collective right to use the land and its resources to ensure our survival as a people. We also have

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a collective responsibility to protect the land and resources for our children and grandchildren.

4. We take only what we need from the land. We honour and give thanks to the spirit of the land and that which we take from the land. We do not waste anything that we have taken from the land, but share it with all who are in need.

5. The survival of the whole group (family and community) is more important than the accumulation of individual wealth or status.

6. Individual rights and freedoms are respected and encouraged within the larger, more important context of a collective identity and collective responsibility for the survival and well-being of the entire group.

7. The laws of the Dene, which have been passed down to us by our Elders, teach us how to respect the land, ourselves, and each other. They teach us how to live in balance and good health, and how to protect ourselves and our children. We must continue to live by these laws and pass them on to our children.

8. We respect and care for each other. In particular, we honour and provide for our Elders, who cared for us and passed on the gifts of generations past. We also honour and provide for our children who will pass on the ways of the Dene to generations yet to come.

9. We come from male and female and we respect and honour the contribution which both men and women make in working together for the survival of the people.

10. We respect and honour our leaders and medicine men and women who share their special skills, experience, wisdom, and powers for the benefit of the people. We don’t expect them to work for us or serve us but we look to them for guidance and instruction to help us govern ourselves in a good way.

(Liidlii Kue First Nation, 2010)

43. When it comes to protecting and making decisions concerning the Nation’s lands and resources, everyone has the right to be heard and to take part in the decision-making process on discussion of matters which will affect us. We respect the rights of Dene in family groups, in communities, or in regions to make decisions without interference from outside with respect to matters which affect us in our territory.

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Photo credit: DeneNation.ca viii) Łíídlįį Kų́ę́ First Nation Decision Making regarding the proposed Line 21 Pipeline Replacement Project

44. With respect to the LKFN’s Indigenous/Dene and Treaty Rights, the proposed Project and its potential effects on the environment and our people present potential risks to our rights that require meaningful consideration. Any potential effect from a development’s activities that may result in changes to Dene lands, water, animals or people need to adequately assess and addressed according to Dene laws, values and principles.

ix) Łíídlįį Kų́ę́ First Nation Land Use and Occupancy

45. Limited evidence of LKFN’s current land use in the Project area is illustrated in Figure 1 below. This figure simply shows land and resource use activities from a sample of LKFN members over a 1 year period from 1996-1997, including:

 Fishing sites  Hunting sites for big game, small game, and birds  Occupancy sites  Trapping and snaring locations  Cultural sites  Gathering sites

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46. It should be noted that the most recent available ‘formally written’ data collection regarding LKFN land use and occupancy, and is 20 years old, and must be understood in the context of being a part of “…over 4000 years of conclusive evidence of Dene and Łíídlįį Kų́ę ́ Nation members connection to, and use of the land and waters through oral history and practicing of their inherent Aboriginal rights” (Chief Antoine, personal communications, June 14, 2017).

47. This evidence demonstrates LKFN’s connection to and use of their lands and resources. LKFN maintains that such connections are necessary for the community’s present and future health and wellbeing.

Figure 1 Łíídlįį Kų́ę ́ First Nation Land Use and Occupancy

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48. The Land Use and Occupancy (LUO) sites presented in Figure 1 represent a sample of activities carried out within five (5) km of the Project area. These areas must be considered as a sample set of the overall LKFN land use, and are limited to the sampling of interviewees interviewed during the data collection process undertaken by the LKFN approximately 20 year ago. 348 LUO sites were mapped within 5 km of the project area.

49. LKFN notes that the impacts from Project activities may extend well beyond this 5-km radius, including most significantly, on areas downstream of the Project in the event of discharges or spills. This is of critical concern to the LKFN. Areas downstream are critically important areas for land use, occupancy, and cultural sites for the Dene People in general, and LKFN members in particular. This includes hunting and harvesting sites along the river; areas of enduring cultural significance such as historic and contemporary camp and cabin locations, birthplaces, etc as well as places where LKFN community members routinely stop or overnight on the land.

50. The diversity of land use and occupancy in such a small area, across multiple seasons (i.e., trapping in the winter, bird hunting in the spring and fall, and gathering in the summer months) indicates that issues with the Project, such as Horizontal Directional Drilling related activities, risks of frac- outs and release of drilling fluids and mud into the river, would potentially impact the LKFN’s ability to make use of these areas in all seasons. x) LKFN Domestic Water Use and Concerns about Water Quality

51. Ground water, aquifers and the integrity of water quality is a specific area of concern in these types of development applications for the Dene people, and specifically, the LKFN. Elders, land users and knowledge holders speak of underground streams and rivers that have not been properly studied or identified by the scientists. Access to healthy water sources, however, is a critically inherent right that requires acknowledge and protection.

52. According to LKFN leaders and community members, the people of the LKFN and others use water directly from the Mackenzie River (right from the River, not just via the Village intake for drinking and other domestic uses, as well as for navigation and harvesting. Water bodies of concern include those upstream and downstream of the Project on the Dehcho (Mackenzie River) and other water sources, such as:

 Ponds and lakes upstream of the pipeline crossing on the North shore (across from Fort Simpson);  Several lakes near the pipeline ROW on the south side of the Mackenzie;  Ground water* in muskeg areas when people are inland (i.e., * either water from aquifers and/or surface water in muskeg areas over the permafrost); and  Aquifers. Hearing Order MH-001-2017 and File No. OF-Fac-Oil-E101-2017-07 01 16

53. Depending on the drainage and direction of water flow, risks to the integrity of water resources may present a risk that requires more sufficient consideration and management including a study of ground water flow/drainage, and aquifers in the area, as well as a demonstrated mitigation and management plan to address the risks and potential effects of project interactions with these water values. xi) Current Łíídlįį Kų́ę ́ First Nation Land Use in the Project Area

54. In order to supplement the more methodically collected land use evidence presented in Figure 1, two LKFN families with knowledge and use of the Project area were interviewed to contribute supplementary information in relation to the Project. Given the limited time and even more limited resources available to LKFN to conduct this work, the information gathered is incomplete and no substitute for a properly conducted land use study, but the interview participants provided evidence that:

55. There was little or no consultation or accommodation during the original construction of the pipeline

 When the pipeline was originally constructed and commissioned in 1985, only one community member was engaged for consultation. This community member was “promised money, half a million dollars, which was never paid”.

56. Negative, unacknowledged and unresolved impacts from the original pipeline

 Families in the area have had to move trap lines and snare lines due to roads that have been built to the Mackenzie River to service Line 21;

57. There is ongoing harvesting in the Project area;

 The Project is “right behind” one of the family’s homesteads: the current elder is the third generation who has lived on that land  The families still trap and hunt in the area.

Concerns and potential impacts to land use, socio-economics and wellbeing

58. The two families in the Project Area expect impacts to their traditional practices to get worse as a result of the Project. Specific concerns related to the Project include:

 More people will have access to the land they use and live on  There will be negative impacts to water and the environment  Trucks and machines that will be encroaching on their land  The (access) roads will give others access to their land  A hill in the area will be “removed” to get sand and gravel

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 They will not be able to trap and hunt anymore  The transition from living off the land to a more town-focused life has had mental health impacts on LKFN members, including addictions and suicides.  There are fewer animals in the area to hunt now “because of the pipeline and all the activities”  Spills on their land because of the work  The use of boats and barges on the Mackenzie River  Whether or not there will be clear cutting of trees for construction  Rabbits, fish, and berries are “all changing” (because of development in the area)

xii) Summary

59. Thousands of years of oral history, contemporary land use mapping and evidence obtained from LKFN leaders, community members, land users and knowledge holders reaffirms that the LKFN has and continues to extensively occupy and use the Project Area to exercise constitutionally protected rights and to maintain the Dene way of life.

C. Enbridge’s Failure to Acknowledge and Address Łíídlįį Kų́ę ́ ’s First Nation’s Rights, Interests, and Concerns through their Line 21 Environmental Assessment Application i) Dene Ties to the Land: Connections between Ecological Health and Community Wellbeing

60. LKFN members have a deep spiritual and cultural connection to the land. Community members have always, and continue to, make use of their traditional territory for their livelihood as well as spiritual and ceremonial purposes. To the Dene people, “the land is not property, it is what sustains them, and where they thrive” (Chief Antoine, Personal Communication, June 14, 2017). Historically, the Dene people and LKFN members lived as part of the land, inter-connected to all elements of the environment, including the land, the water, the animals. They prospered through their ties to the land which have included hunting, harvesting, fishing and cultural ceremonies.

61. This social and spiritual connection to the land, as well as the ability to access and use of the land is at the heart of Dene cultural identity and wellbeing. The Łíídlįį Kų́ę ́ People’s health is inherently connected to the ecological health of their lands. ii) Old impacts, new impacts – Protection of the Land and Dene Rights to Access Healthy Lands

62. The proposed Line 21 Pipeline Segment Replacement Project presents risks to the LKFN’s Indigenous rights and its community members’ wellbeing because of numerous Project activities and interactions with the surrounding ecological and human environment. These new impacts are Hearing Order MH-001-2017 and File No. OF-Fac-Oil-E101-2017-07 01 18

anticipated to add to the ongoing and growing cumulative effects being experienced by the LKFN members, as the Dene people have historically been, and continue to be, overlooked, dismissed and disrespected with regards to third party industrial natural resource development in their territories. This disrespectful behaviour will no longer be tolerated, especially considering the LKFN’s current process of community and cultural re-building and revitalization, a process that is includes a return to the land. LKFN believes that the land and its resources must be protected, and expects that the NEB will ensure that LKFN’s issues and concerns concerning the impacts of the Project on the lands, rights and way of life of the LKFN and other Dene will be fully assessed, and that LKFN is fully consulted and accommodated in this process. iii) Risks to Łíídlįį Kų́ę ́ First Nation’s Dene Rights from Inadequate Effects Assessment

63. Based on a review of the environmental and socio-economic assessment documentation (ESA) documentation and the information requests provided by Enbridge to date, LKFN concludes that proposed mitigations are inadequate and do not adequately address the potential for impacts the LKFN’s environmental, social, economic and cultural values, according to Dene principles and laws.

64. The issues identified through the LKFN’s technical review of the Line 21 ESA relate to the following four (4) NEB Issues:

 NEB Issue #4: The potential environmental and socio-economic effects of the Project  NEB Issue #7: Potential impacts of the Project on Aboriginal Rights  NEB Issue #8: Potential impacts of the Project on land users  NEB Issue #11: Safety and security during construction and operation of the Project, including emergency response planning and third-party damage prevention.

65. LKFN’s technical review of the Project’s ESA documentation concludes that Enbridge has failed to adequately acknowledge and/or propose mitigation, management and monitoring measures in a way that recognizes risks of effects on the LKFN’s Dene/Indigenous rights (NEB Issue #7). These risks are inherently inter-related to the potential impacts to environmental and socio-economic value components (NEB Issue #4; #8); as well as inadequacies of proposed emergency response plans related to accidents and malfunctions, including HDD frac-out risks (NEB Issue #11).

66. The LKFN technical review team identified a total of 56 outstanding issues and key information requests (IRs) as a result of their evaluation of the Project’s ESA documentation. Out of these 56 outstanding issues and key IRs, the LKFN technical review team notes that Enbridge provides adequate responses to less than a third of the issues raised (16 IRs - 29% were addressed in a satisfactory manner); a little over a half were only partially addressed (30 IRs - 54% were partially or provisionally addressed); and 18% of the issues (10 IRs) were not addressed adequately at all, to the point that the issues were completely dismissed.

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67. Details of the issues, rationale for the issues, corresponding information requests, Enbridge’s responses and LKFN’s evaluation of these responses can be found in Appendix 1 to this submission.

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iv) Project Impacts and Interactions

68. The following discussion sets out how the Project’s components and activities interact with the land, water, animals and people, identifies how these interactions will result in potential impacts, and provides proposals for how such impacts may be addressed in ways that respect Dene laws, values and principles.

69. Project effect mechanisms: The Project’s effect mechanisms and value component interactions involve direct construction related activities as well as indirect activities related to the temporary, transient workforce needed for the Project. This includes:

i. Right-of-way (ROW) preparation ii. Stringing, welding, coating, NDE, hydro-testing and inspecting the pipe iii. Installation of watercourse crossing by horizontal directional drill (HDD) iv. Caliper tool run to verify installation accuracy v. Right-of-way cleanup and reclamation vi. Temporary worker camps on the north and south shores of the River vii. Workforce personnel that will be staying in, and traveling in between, Fort Simpson and the Project area

70. Project effect interactions with Łíídlįį Kų́ę ́ First Nation Values and Rights: the Project activities, based on Enbridge’s currently insufficient effects assessment, either directly impact or result in unacceptable risks to land, water, animals and the, LKFN’s rights and way of life.

71. Table 7 on the following page illustrates the LKFN technical review team’s assessment of how the Project’s impacts interact with Dene values.

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Table 1 Project Effect Interactions with Dene Values and Łíídlįį Kų́ę ́ First Nation Rights

Risk to Dene Values and Łíídlįį Kų́ę ́ First Nation Rights Inter-connected effects: alteration of ecological environment, hunting, trapping, fishing, gathering areas, water sources, cultural sites within LSA and RSA; hindrance to Line 21 Project Effect Interactions with Dene Values trail and travel access to lands, alteration to terrestrial or aquatic species' migratory and/or spawning patterns; Effects to groundwater, surface water and/or sub- surface water from spills, leaks or ruptures involving deleterious substances during construction and operation phases of the Project.

Project Activities

Lands Water Animals People

Right-of-way (ROW) preparation Moderate Low Moderate Moderate

Stringing, welding, coating, NDE, hydro-testing and inspecting the pipe Low Low Low Low

Installation of watercourse crossing by horizontal directional drill (HDD) Moderate Moderate Moderate Moderate

Caliper tool run to verify installation accuracy Low Low Low Low

Right-of-way cleanup and reclamation Low Low Low Low

Temporary worker camps on the north and south shores of the River Moderate Moderate Moderate Moderate Workforce personnel that will be staying in, and traveling in between, Fort Simpson and the Project area Low Low Low Low

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v) Project Effects, Interconnected Dene Values and Implications to Dene Rights

72. Enbridge did not scope their ESA in a way that fully captures all the potential impacts to wildlife and vegetation species and habitats of importance to the LKFN. The LKFN were not consulted regarding valued ecosystem components and species they consider important to assess and protect in the case of potential effects. The spatial scale used for analyzing potential impacts to wildlife around may be too small to capture the spatial extent of impacts, including those related to a potential HHD frac out or spill.

73. Approximately half of the issues and information requests relating to wildlife and wildlife habitat, vegetation and wetlands were either only partially addressed or not addressed at all. Because of this, the Łíídlįį Kųę́ ́ First Nation has ongoing concerns about the risks to wildlife, habitats, and subsequent traditional land use practices within their territory because of the Project’s activities and the areas of weakness in Enbridge’s proposed mitigations, assessment scope and involvement in emergency response planning and participation.

74. Specifically, LKFN remains concerned about their ability to conduct traditional land use practices, including hunting and trapping near the Local Study Area (“LSA”) and in the Project Footprint (“PF”), and their involvement in environmental and cultural monitoring during all Project phases to ensure their traditional and cultural rights and interests are protected.

75. In response to many of the issues and information requests that referenced LKFN traditional knowledge, rights, and interests, Enbridge has failed to acknowledge the relevance or importance of LKFN’s requests. In LKFN’s assessment, this is disrespectful of both the NEB process and of LKFN. We can only infer that Enbridge either believes that such information requests are meaningless, or that the NEB will not explicitly require them to incorporate this information within the hearing process.

76. In this submission and in Appendix I, 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.

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vi) HDD Impacts and Implications

78. Enbridge asserts that using Horizontal Directional Drilling (HDD) to cross major rivers and waterbodies will avoid or limit the interaction with the aquatic environment, and states that if HDD is successful, there should be almost no interaction or impact on the river.

79. The primary concern of the LKFN with HDD is the potential for an inadvertent frac, which would release high pressure drilling mud into the river during drilling activities. Drilling mud is used at high pressure to lubricate the hole as the drill navigates below the river. In a typical scenario, drilling mud is cycled back to the drill pad and returned to containment tanks, where it is released off-site in accordance with the proponent’s Environmental Protection Plan (EPP). However, accidental frac- outs can occur when the drill intersects a seam or crack in the substrate, and the high-pressure mud flows through the crack and into the river, potentially releasing large volumes of drilling mud into the watercourse.

80. A frac-out is an accidental release from a pipeline where drilling fluids are returned to the surface during a pipeline construction Frac-outs are a common occurrence in HDD projects (Utility Magazine, 2016). Frac-outs happen when the mud pressure in the down drilling hole exceeds the pressure within the over-burden closer to the surface, or when the drilling fluid finds a preferential seepage pathway outside of the drill hole. A preferential seepage pathway can include formations such as fault lines, fractures, nearby infrastructure or loose material (Ibid).

81. The Project ESA does not adequately consider the risks of HDD activities and frac-out impacts on the aquatic environment. These potential effects have been downplayed, if not dismissed by the Proponent. This is of great concern to LKFN.

82. Although the typical composition of drilling fluid is non-toxic, there remains far reaching negative impacts to the aquatic environment if a frac-out fluid release were to occur directly into a watercourse. The major concern with a frac-out into a river or stream is the resulting turbidity or Total Suspended Solids (TSS) level in the watercourse. Sediment mobilization, drilling fluid plumes and suspended solid increases from frac-outs are known to have significant impacts on resident fish and fish habitat. Fish populations can be negatively impacted by short-term increases in suspended sediment if severe, resulting in destruction of suitable spawning habitat or extreme decreases in egg-to-larva survival. Sediment that settles or covers rearing habitat may also reduce prey availability, increasing substrate embeddedness and burying invertebrate communities; thus, inhibiting the growth potential of juvenile fish (Robertson et al. 2006).

83. Long-term or frequent exposure to elevated levels of suspended sediment levels will result in fish population decline and changes in fish community structure. Fish species that eat invertebrates or require clean gravel for spawning will decline in sedimented areas and may be replaced by more tolerant species. The greatest impact of sedimentation is on incubating eggs and larval fish as high mortality rates of these life stages may result in reduced fish production. The magnitude of adverse

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effects will be related to exposure frequency, duration, concentration fish species and fish life stage, particle size and type and background turbidity levels (Birtwell et al. 1999).

84. In summary, a frac-out has the potential to:

 destroy suitable spawning habitat,  cause drilling mud sediment to settle or smother rearing habitat for juvenile fish,  reduce prey availability,  bury and suffocate invertebrate communities,  inhibit the growth potential of juvenile fish,  cause decline and changes in fish community structure,  cause decline of fish species that eat invertebrates or require clean gravel for spawning and/or cause them to be replaced by more tolerant species,  result in reduced fish production through impacts to incubating eggs and larval fish, can suffocate adult fish individuals, and  cause fish kill events.

85. Recently, a failed HDD crossing of the Humber River forced TransCanada Pipeline Limited to abandon the use of HDD for the river crossing. During the failed attempt, TransCanada experienced a frac-out and several sinkholes.20

86. Considering the degree of adverse impacts to fish and fish habitat if a frac-out were to occur, it is imperative that a detailed aquatic assessment be conducted prior to any drilling activities, to understand the quality of the fishery, the extent of the damage if a frac-out were to occur. A detailed aquatic assessment would also support plans for appropriate mitigation and reclamation measures in the event of a frac-out. A detailed Water Quality Monitoring (WQM) plan should be designed that outlines the extent of the necessary aquatic monitoring including; turbidity sampling frequency, distance downstream monitoring will take place (zone of influence (ZOI) at the time of drilling), habitat quality, timing of drilling during spawning runs, turbidity monitoring equipment (remote sensor units or handheld) and detailed spill response procedures.

Frac-outs and potential effects on infrastructure

87. In addition to posing risks to aquatic resources, frac-outs have the potential to damage nearby infrastructure services through damages incurred such as “roads rising, nearby water pipelines failing as the frac-out washed away the bedding sand, power boxes filling with fluid and vegetation disappearing into a sinkhole caused by a frac-out”21 Therefore, assessing the risk of frac-outs is a critical component for projects that are employing the HDD method. The most commonly

20 TransCanada Pipelines Limited, Letter to National Energy Board dated 21 April 2017, re. Vaughan Mainline Expansion Project, Order XG-T211-020-2016. 21 Utility Magazine (2016). What is a frac-out in HDD. Published on: 4 May 2016. Hearing Order MH-001-2017 and File No. OF-Fac-Oil-E101-2017-07 01 25

employed method to risk assessment is the application of modelling software to assess maximum allowable fluid pressure against the expected drilling fluid pressure. vii) Project Effects on Community Health and Well-Being

88. LKFN is concerned that Enbridge does not recognize the full scope of the potential interactions between the Project and the ecological health, community health and socio-economic health of LKFN members. Given the inherent connections between social, ecological, economic and cultural values, potential impacts are complex and inter-dependent. Human or social elements pertain to employment, income, human interactions through workforce requirements and indirect effects from human activities related to an influx in temporary workers such as negative pressures on hunting, fishing and use of community services and infrastructure. Bio-physical elements pertain to project structures and activities that cause disturbance under normal conditions, as well as in the case of accidents and malfunctions – in this case, involving frac-outs or oil spills.

89. Because the proponent does not recognize a variety of human and bio-physical Project effect mechanisms and interconnections, the Project ESA fails to provide regionally and culturally appropriate assessment and management plans.

90. Without regionally and culturally appropriate assessment and management plans, the Project poses a risk to LKFN lands, rights and way of life. The Project ESA fails to recognize and understand the connections between Dene social, cultural and ecological resilience. If there were a frac-out or spill, potential impacts to water, fisheries, wildlife, vegetation and human health would inevitably impact community wellbeing. This is particularly significant for communities like LKFN that are dependent on environmental resources for their livelihoods and cultural identity. As noted in previous sections, the ability of LKFN to access, use and manage natural resources is both a constitutionally protected Dene right and paramount to the sustainability of the Dene way of life.

91. Whether there is a frac-out or spill or not, LKFN members may also may avoid the area due to perceptions that it is not safe, environmentally or spiritually. Avoidance can impact their land use patterns, the amount of wild foods consumed, and hinder community members’ connections to the land; directly affecting their health and well-being.

92. These negative impacts may be offset to a certain extent by measures that promote positive effects or socio-economic benefits that may contribute to community wellbeing, including employment during construction and operations; business opportunities to provide goods and services to Enbridge or its contractors, and support for community programs that support Dene livelihoods and cultural identity.

93. Specific commitments to ensure that impacts are mitigated and that potential benefits are realized are often included in life-of-project agreements between Indigenous communities and developers , but no such measures have been proposed by Enbridge to LKFN for this Project. Hearing Order MH-001-2017 and File No. OF-Fac-Oil-E101-2017-07 01 26

viii) Project Effects on Cultural Heritage

94. The responses to the IRs concerning cultural heritage and archaeology frequently refer to documents that Enbridge claims satisfy the issues raised. These documents have not been provided to or reviewed by LKFN, and therefore, the LKFN cannot verify Enbridge’s claims.

95. It is important to ensure that the LKFN are involved in the early stages of establishing the Standard Operating Procedures for the Project and surveying the project area for traditional use sites. Additionally, it is important for an archaeologist familiar with the Project area to ensure that LKFN community members are involved in cultural monitoring and that project personnel know how to identify artifacts, archaeological sites and traditional use sites. ix) Social and Cultural Impacts of Worker Camps on Indigenous Women

96. The Project ESA does not adequately consider the risks of temporary worker camps on the human and ecological environment. These potential effects have not been considered by the Proponent. This is of great concern, and not acceptable to, the Dene People and the LKFN.

97. There are number of literature sources that describe the social impacts of resource development transient worker camps. Social impacts refer to the impacts experienced by people, especially Indigenous peoples, who live and harvest on the land near these industrial work camps. In the case of a Northern Health study (Northern Health, 2012) regarding the impacts of industry work camps in Northern BC the authors found that a number of work camps have “negative consequences for individual workers, their families, and host communities”22 with specific issues identified including problematic use of substances such as drugs and alcohol, mental health challenges experienced by rural workers and members of host communities, increased instances of communicable disease including sexually transmitted infections (STIs), and capacity limitations with the local health system to adequately manage the increased service demands from the influx of transient workers.

98. Two studies – one conducted by The Firelight Group with Lake Babine Nation and Nak’azdil Whut’en (2017) and the other by W. Beamish Consulting Ltd. & Heartwood Solutions Consulting (2013) both presented similar findings regarding the social impacts of transient worker camps. Both studies found that a prevalent impact of transient worker camps included an increase in domestic violence and violence against women; especially Indigenous women and girls within the host communities of these camps. In addition, the two studies indicated that traditional economies (I.e. hunting, gathering, trapping) are impacted by the influx of non-Indigenous workers who hunt on the land during their downtime in the work camps.

22 Northern Health (2012). Part 1: Understanding the State of Industrial Camps in Northern BC: A Background Paper. Hearing Order MH-001-2017 and File No. OF-Fac-Oil-E101-2017-07 01 27

D. Crown Consultation and the Enbridge/LKFN Engagement Process

99. The LKFN submits that Enbridge has:

A. failed to meet the minimal standards set in out their own Indigenous Peoples Policy , and have not engaged in “forthright and sincere consultation with Indigenous peoples about Enbridge’s projects and operations through processes that seek to achieve early and meaningful engagement so their input can help define our projects that may occur on lands traditionally occupied by Indigenous peopl 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.

100. The basis of this submission is further detailed below. i) The Duty to Consult

101. The duty to consult arises “when the Crown has knowledge, real or constructive, of the potential existence of the Aboriginal right or title and contemplates conduct that might adversely affect it”.23

102. Prior to making a decision or issuing a license, it is incumbent on Crown decision-makers, including the National Energy Board, to ensure that the duty to consult and accommodate has been discharged in an manner consistent with the honour of the Crown.

103. The court in Halfway River First Nation v. British Columbia (Ministry of Forests) explained:

The Crown's duty to consult imposes on it a positive obligation to reasonably ensure that aboriginal peoples are able to express their interests and concerns, and to ensure that their representations are seriously considered and, wherever possible, demonstrably addressed by the proposed plan of action.24

104. In doing so, “the Crown may fairly consider the opportunities for Aboriginal consultation that are available within the existing processes for regulatory or environmental review.”25 The Supreme Court has confirmed that participation by affected First Nations in a forum created for other

23 Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73 (CanLII) at para. 35; Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), [2004] 3 S.C.R. 550, at para. 25. 24 Halfway River First Nation v. British Columbia (Ministry of Forests), [1999] 4 C.N.L.R. 1 (B.C.C.A.) at para 160. 25 Brokenhead Ojibway First Nation v. Canada (Attorney General), 2009 FC 484 (CanLII), at para. 25. Hearing Order MH-001-2017 and File No. OF-Fac-Oil-E101-2017-07 01 28

purposes, such as an environmental assessment, can fulfil the Crown’s duty to consult, but the issue to be decided in every case is whether an appropriate level of consultation is provided through the totality of measures the Crown brings to bear on its duty of consultation.26 [emphasis added]

105. Further, while Enbridge itself does not have a duty to consult, Crown decision-makers may delegate procedural aspects of consultation to Enbridge to engage with LKFN and demonstrate that it has considered and accommodated LKFN’s concerns.

106. Prior to making decisions which may impact asserted or established Aboriginal and Treaty rights (all of which are at issue here for reasons set out in Sections B and C) the Crown must engage in “deep and meaningful” consultation with the LKFN.27

107. As recently summarized by the Federal Court of Appeal in Gitxaala:

When a strong prima facie case for the claim is established, and the right and potential infringement is of high significance to the Aboriginal peoples, and the risk of non-compensable damage is high, the duty of consultation lies at the high end of the spectrum. While the precise requirements will vary with the circumstances, in this type of case a deep consultative process might entail: the opportunity to make submissions; formal participation in the decision-making process; and, the provision of written reasons to show that Aboriginal concerns were considered and how those concerns were factored into the decision.28

108. Despite these requirements, Crown decision-makers have not consulted with the LKFN at all, despite ongoing efforts by LKFN to raise concerns which it has with the Enbridge proposal. Nor has Enbridge discharged obligations to engage LKFN in meaningful dialogue concerning the proposal, or considered and accommodated LKFN’s concerns.

109. It is LKFN’s expectation that the NEB and Mackenzie Valley Land and Water Board (“MVLWB”) processes will yet provide opportunities for meaningful consultation and accommodation of LKFN concerns, through direction to Enbridge to effectively engage in addressing LKFN concerns, by ensuring that LKFN has a formal opportunity to participate in the decision-making process; and by ensuring that there is a deep examination of how LKFN’s concerns have been considered, and how those concerns have been factored into decision-making.

26 Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43 (CanLII) at para. 56. 27 White River First Nation v Yukon Government, 2013 YKSC 66 at para 128 28 Gitxaala Nation v. Canada, 2016 FCA 187 (CanLII) at para. 174 Hearing Order MH-001-2017 and File No. OF-Fac-Oil-E101-2017-07 01 29

110. LKFN submits that the NEB process may yet offer a meaningful opportunity for LKFN to participate in deep or meaningful consultation regarding the Project and the decision-making by the Crown; but notes that:

1. LKFN’s concerns have not yet been addressed or accommodated; 2. LKFN requires both time and resources to engage in consultations; and 3. LKFN must be able to meaningfully participate in decision-making about the Enbridge proposal with NEB and the MVLWB and other Crown decision-makers in a manner that respects and reconciles LKFN’s rights and title. ii) No Meaningful Opportunities to Consult

111. The legal tests for deep and meaningful consultation have been well articulated in Taku River and other cases by the Supreme Court of Canada. The standards that Crown decision-makers and Enbridge must meet at the deep end of the spectrum are well established in Canadian law. Yet there has been no opportunity for LKFN to participate in deep and meaningful consultations in relation to the Enbridge proposal.

112. Enbridge first brought this proposal to LKFN’s attention in January 2017. As evidenced by Enbridge’s submissions on this matter, they have characterized their proposal as having minimal – even negligible – impacts on LKFN rights and interests.

113. To date, the record demonstrates Enbridge has been far more interested in advancing their construction schedule (initially proposed for May 2018) than attending to the issues and concerns raised by LKFN.

114. Since Enbridge began addressing the Project publicly, its so-called engagement with LKFN has been formulaic, constrained and administrative. There has been no (or nearly no) substantive engagement between Enbridge and LKFN, despite LKFN repeatedly advising Enbridge of its concerns related to the Project. Indeed, Enbridge’s Aboriginal Consultation Log and Issues Summary (Attachment 1 to IR No 2.1(b) and 2.1(c)) demonstrates only the most cursory appreciation or understanding of the issues raised by LKFN, and provides rote and occasionally ridiculous responses to LKFN concerns.

115. The “Aboriginal Consultation Log” submitted to the NEB by Enbridge is little more than an exercise in record-building, filling multiple pages with “consultations” which were in many cases single- paragraph emails, or brief telephone conversations seeking to schedule meetings. In the rare entries which describe actual meetings, LKFN asserts that such meetings are most accurately characterized as ‘visits’, rather than opportunities for substantive technical engagement. LKFN’s references to specific concerns are often omitted or ignored, or “addressed” with platitudes and patronizing proposals. .

116. Most recently, LKFN spoke at a May 24th meeting with Enbridge about the serious concerns LKFN has about the potential impact of the project on the community’s water supply during construction,

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or and on water in the Mackenzie River and other waterbodies which LKFN members rely on as drinking sources when travelling and harvesting on the land in the event of a drilling failure or spill during operations. At that meeting, LKFN also raised numerous other concerns relating to the protection of the land and water. LKFN’s concerns are either not reflected in Enbridge’s Consultation Log or are characterized so as to diminish the importance or significance of the issue.

117. In contrast, Enbridge’s Consultation Log repeatedly and without justification conflates contacts with consultation. For example, the entry for February 22nd records an instance of ‘consultation’. Such ‘consultation’ consisted of a single-paragraph email, providing LKFN with an invitation to an already scheduled open house. This is not consultation – it is merely communication.

118. Nor does Enbridge appear to understand meaningful accommodation. For example, Enbridge appears to believe that a “commitment to provide traffic cones” in their 31 May/17 Summary of Aboriginal Concerns is a deep and meaningful response to the concerns expressed by LKFN members over public safety in the area of the proposed construction zone. This and other examples illustrate Enbridge’s shallow and insincere approach to consultation and accommodation with LKFN, and their failure to discharge the duty to consult or meet the standards of deep and meaningful consultation that are required in relation to their proposal. iii) Efforts by LKFN to Engage Enbridge

119. LKFN accepts that it also has duties to engage in consultation, to participate and consult in good faith, and not to frustrate the good faith efforts of the Crown.29 LKFN understands that it is obligated to express its interests and concerns once they have had an opportunity to consider the information provided by the Crown or by the proponent, and to consult in good faith by whatever means are available to them. LKFN accepts that First Nations “cannot frustrate the consultation process by refusing to meet or participate, or by imposing unreasonable conditions…”30

120. LKFN is participating in the NEB and MVLWB processes in good faith, and endeavouring to meet timelines for submissions. LKFN is also attempting to engage with Enbridge to better understand the project, but that it is doing so without adequate resources and on a schedule that is has been established entirely by the proponent and by the NEB. iv) No Resources Have Been Provided to LKFN

121. LKFN’s ability to review technical documentation, or carry out its own environmental, traditional land use and Indigenous knowledge studies is significantly less than the ability of Enbridge to fund such studies.

122. No process funding has been provided by Enbridge, Canada or the GNWT, and LKFN’s application for participant funding has yet to be determined by the Board. LKFN does not dispute that

29 Haida Nation at para. 42. 30 Halfway River, at para 161. See also Tzeachten at para. 62. Hearing Order MH-001-2017 and File No. OF-Fac-Oil-E101-2017-07 01 31

consultation requires participation, but submits that for the LKFN to participate meaningfully, there must be sufficient resources. There is significant judicial support for LKFN’s position:

 In Taku River, the court found there to be adequate consultation, the First Nation was provided funding for a wildlife program to assess the possible impact of development on Aboriginal rights.31

 In Platinex v. Kitchenuhmaykoosib Inninuwug,32 the Ontario Superior Court of Justice held that the Ontario Crown was required to consult with a First Nation whose traditional lands were impacted by exploration activities. The Court required a Consultation protocol of which funding by the Province was an element. In that case, the court held that $150,000 in funding for the consultation costs of the First Nation was reasonable.

 In Dene Tha' First Nation v. Canada (Minister of Environment) the court ordered the parties to address “the provision of technical assistance and funding to the Dene Tha' to carry out the consultation”.33

 Finally, in Ka’a’Gee Tu First Nation v. Canada (Attorney General) (“Ka’a’Gee Tu #1”), although the court held that the Crown breached its duty to consult and it did not have enough information to decide whether the funding provided was sufficient, the court indicated that the issue of adequate funding would have to be considered as part of the court’s analysis of whether the consultation was “meaningful”.34 v) Failure to Respect LKFN’s Consultation Protocols

123. LKFN does not come to the consultation process as a blank slate. In order to best utilize and value the traditional knowledge of the people of LKFN, the “Traditional Knowledge Interim Policy of the Liidii Ku’e First Nation” was drafted in 2003, and has been in use ever since. This policy sets out the uses which may be made of LKFN’s traditional knowledge, how that knowledge can be requested and maintained, and the process which project proponents must undertake in order to engage in the deep and meaningful consultation required by law. To date, none of Canada, the NEB or Enbridge have complied with the process set out in the Policy.

124. LKFN’s view of “meaningful, good faith consultation” incorporates the requirements set out in their Traditional Knowledge Interim Policy, and also requires process funding, two-way information sharing, substantive consideration, discussion and if necessary, negotiation, of all concerns raised by LKFN, and accommodation which arises out of that process. LKFN has sought, and continues to

31 Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), [2004] 3 S.C.R. 550 [Taku River] at para. 12.; Little Salmon/Carmacks First Nation v. Yukon (Minister of Energy, Mines and Resources), 2008 YKCA 13; Gitanyow First Nation v. British Columbia (Minister of Forests) (2005), 38 B.C.L.R. (4th) 57 (S.C.), where the court did not draw a conclusion about consultation, but the underlying facts suggest that adequate funding may be a part if meeting the duty; Hiawatha First Nation v. Ontario (Minister of the Environment) (2007), 221 O.A.C. 113 (S.C.J. Div. Ct.) at para. 33. 32 Platinex Inc. v. Kitchenuhmaykoosib Inninuwug First Nation, 2007 CanLII 20790 (Ont. S.C.J) [Platinex]. 33 Dene Tha' First Nation v. Canada (Minister of Environment), [2007] 1 C.N.L.R. 1 (F.C. T.D.) at para. 135. 34 Ka’a’Gee Tu First Nation v. Canada (Attorney General),2007 FC 763 (CanLII), at paras. 31-36, 128. Hearing Order MH-001-2017 and File No. OF-Fac-Oil-E101-2017-07 01 32

seek, information and resources to conduct the necessary studies and to inform their position on the Application.

125. The colonial system has led to cumulative impacts to the way of life of LKFN, and has contributed to trauma and pain experienced by community members. The colonial system’s pre-Constitutional approval of the pipeline did not respect LKFN’s culture or systems of governance, nor did it require the consultation or consent of LKFN or offer any compensation for construction of the pipeline on their land.

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E. Summary and Recommendations

126. No meaningful consultation or accommodation has occurred.

a) LKFN has a strong prima facie for Dene title to their lands, and has well established Dene rights on their lands. The Crown has had knowledge of these facts for decades, and has knowledge of the threats the Project poses to these LKFN rights. The Crown’s responsibility to ensure the duty to consult and accommodate has been properly discharged has been triggered. b) As LKFN’s case for Dene rights and title is strong, and the risks of non-compensable damage to LKFN rights and title posed by the Project are high, the Crown’s duty to consult and accommodate falls at the highest end of the spectrum. c) Enbridge’s attempts at engaging LKFN have been seriously inadequate and insincere. Enbridge has not discharged its obligation to engage LKFN meaningfully. d) LKFN has been making good-faith efforts to participate in two parallel processes (those of the NEB and the MVLWB) while attempting to engage with Enbridge.

127. Technical funding and engagement is required of Enbridge to ensure that LKFN concerns are considered in respect of the proposal.

e) While LKFN has been available to willing engage with Enbridge, no offer has been made from Enbridge to provide process funding or other support for the research, studies and consultations with LKFN members that are necessary for consultation to be meaningful. As the proponent, it is Enbridge’s responsibility to provide the resources necessary to comply with LKFN’s policies for proponents, and ensure that the consultations are meaningful on both sides.

128. Process support is required from the NEB to enable LKFN to participate in decision-making.

f) NEB has an obligation, grounded in the duty to consult and accommodate, to ensure that the hearing enables LKFN to engage in meaningful consultations. This includes getting full and complete information from Enbridge about the proposal, ensuring that this information is rigourously reviewed in a manner that is accessible and acceptable to LKFN, and supporting the participation of LKFN in this process. g) LKFN has submitted a participant funding request, but has not yet received a response. Delays in the NEB’s response to LKFN’s requests prejudice LKFN’s participation in this hearing, and undermine the consultation process.

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129. Further Information is Required

h) The LKFN requires that a detailed wetland assessment be conducted prior to drilling activities, to provide a baseline for these habitat types, and to identify the extent of damage if a frac-out were to occur, in addition to appropriate emergency response, mitigation and reclamation measures that are warranted. i) The LKFN requires a detailed aquatic assessment to support plans for appropriate emergency management, mitigation and reclamation measures in the event of a frac-out. j) Enbridge should be required to provide contingency, including an environmental impact assessment, in the event of a failed HDD attempt similar to the failed attempt experienced by TransCanada in crossing the Humber River. k) The LKFN requires support and funding to conduct a new Land Use and Occupancy Study. Based on the extensive Project area data collected through the 1996-97 LKFN Land Use and Occupancy Study, a new and current traditional knowledge and land use study is required to adequately assess effects on LKFN rights and interests. Even a cursory review of the Project in relation to the 1996-97 LKFN Land Use and Occupancy Study would reveal numerous examples of Project impacts to land and resource use and associated socio-economic subsistence economy impacts to LKFN members, and adverse impacts to LKFN members because of barriers and challenges to access and/or travel on ROW as a result of the Project. A new and current traditional knowledge and land use study would provide an evidence-based foundation for mitigations for potential impacts to health and safety aspects of wellbeing and risks from construction activities. Such a study would also support mitigations related to the safety aspects of community wellbeing because of construction for temporary transient workers; outsiders to the area in terms of cross-cultural interactions, racism and increased pressure on LKFN resources through outsider transient employees hunting and/or fishing. l) The LKFN requires support and funding to conduct a ground-truthing study regarding LKFN water consumption from land and water users, and the families that live near the ROW. m) The LKFN requires that the ESA describe and assess potential effects on infrastructure and services, including health/social wellbeing from HDD activities, frac-outs and spills. n) The LKFN requires Enbridge to conduct an analysis on the possibility of winter construction, including the risks and benefits of winter construction. To minimize impacts to the environment during construction and on traditional land use interests, winter construction should be seriously considered by Enbridge. This would further protect ungulate calving periods as well as restricted activity periods for migratory birds.

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F. Preliminary Conditions and Recommendations for Project Approval

130. As noted throughout these submissions, LKFN has deep concerns about the potential impacts of the Project. However, in considering how these concerns might be mitigated, LKFN has identified the following preliminary conditions for any orders or enabling the Project to proceed:

a) The LKFN requires clear communication and notification (minimum 21 days) of the finalized construction scheduling be provided to LKFN for distribution to their community, with follow-up communication on a weekly basis for any scheduling changes to address the needs of harvesters who may travel long distances to hunt and then find that the area they are travelling to is subject to construction activity which has disturbed or displaced the wildlife they were planning to hunt.

b) The LKFN requires Enbridge to provide firm commitment on the hiring of LKFN members and procurement services from LKFN-owned businesses.

c) The LKFN requires involvement in pre-construction and construction monitoring for the project, which would include, but is not limited to,: a. Consulting with LKFN monitors and representatives if a frac-out occurs. b. Following clean up procedures immediately. c. Recording any wildlife activity in the immediate vicinity.

d) The LKFN requires funding for an LKFN-led guardian program so that LKFN environmental and cultural monitors are actively involved in monitoring initiatives at all stages of the Project, including pre-construction, construction and operation.

e) The LKFN requires establishment of an LKFN-Enbridge Environmental Management Committee for the life of the Project and the Line 21 facilities within LKFN territory. Establishment of this Committee requires meaningful discussion between LKFN and representatives of Enbridge who have the authority to make decisions at the highest levels; discussions with Enbridge representatives who have only technical expertise and/or limited decision-making authority is inadequate.

f) The LKFN requires a Project and Line 21 facility lifecycle agreement with Enbridge to address human resource needs for monitoring.

g) The LKFN requires Enbridge to demonstrate it is providing capacity supports and a lifecycle agreement for on-going LKFN involvement in emergency preparedness and response.

h) The LKFN requires a royalty and revenue sharing agreement similar to the royalty and revenue sharing agreement in place with upper and lower tier governments.

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Gitanyow First Nation v. British Columbia (Minister of Forests) (2005), 38 B.C.L.R. (4th) 57 (S.C.). Hearing Order MH-001-2017 and File No. OF-Fac-Oil-E101-2017-07 01 39

Gitxaala Nation v. Canada, 2016 FCA 187 (CanLII).

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Hiawatha First Nation v. Ontario (Minister of the Environment) (2007), 221 O.A.C. 113 (S.C.J. Div. Ct.).

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Ka’a’Gee Tu First Nation v. Canada (Attorney General),2007 FC 763 (CanLII).

Little Salmon/Carmacks First Nation v. Yukon (Minister of Energy, Mines and Resources), 2008 YKCA 13.

Platinex Inc. v. Kitchenuhmaykoosib Inninuwug First Nation, 2007 CanLII 20790 (Ont. S.C.J).

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Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), [2004] 3 S.C.R. 550.

White River First Nation v Yukon Government, 2013 YKSC 66.

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