National Energy Board

Hearings under the National Energy Board Act Regarding the Enbridge Pipelines Inc. - Line 3 Replacement Program

Pine Creek First Nation Written Evidence Submission: Report on Community Priorities and Concerns regarding the Enbridge Pipelines Inc. – Line 3 Replacement Program

Report Prepared by: Thomas Nepinak on behalf of Pine Creek First Nation,

September 22nd, 2015

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Introduction

Pine Creek First Nation (PCFN) is a community with close to 3500 band members and is signatory to , which is comprised of 34 bands. Pine Creek First Nation is located 120 km north of Dauphin, , and lies on the western shore of (Pittowinipik). Pine Creek First Nation is also affiliated with the West Region Tribal Council, Southern Chiefs Organization and the Assembly of Manitoba Chiefs.

This report has been prepared for submission to the National Energy Board (NEB) in furtherance of PCFN’s participation in the NEB’s regulatory proceedings regarding the Enbridge Pipelines Inc. – Line 3 Replacement Program.

Background

Enbridge Pipelines Inc. (“Enbridge”) has submitted an application pursuant to section 52 of the National Energy Board Act for the issuance of a certificate by the NEB in relation to the proposed Line 3 Replacement Program. PCFN notes that the NEB, when making its recommendation to the Minister under section 52(1)(b) of the National Energy Board Act, must indicate “regardless of the recommendation that the Board makes, all the terms and conditions that it considers necessary or desirable in the public interest to which the certificate will be subject if the Governor in Council were to direct the Board to issue the certificate, including terms or conditions relating to when the certificate or portions or provisions of it are to come into force.” PCFN submits this report in order to provide vital information to the NEB for consideration in its recommendation to the minister.

The NEB issued a hearing Order on May 4, 2015, and has subsequently administered the process of obtaining information and input from both Enbridge as well as the various stakeholders and participants which have been identified as being impacted by the project.

The NEB has indicated that it will consider numerous issues, which include, among other things:

1. The potential environmental and socio-economic effects of the Project, including those to be considered under the Canadian Environmental Assessment Act, 2012. 2. Potential impacts of the Project on Aboriginal interests. 3. Potential impacts of the Project on landowners and land use. 4. Contingency planning for product release, accidents or malfunctions, during construction and operation of the Project. 5. The suitability of the decommissioning plan for the existing Line 3 pipeline including whether the decommissioning is appropriately an interim step to eventual abandonment or whether it is the final step in the pipeline’s lifecycle. 6. Safety and security during construction and operation of the Project, including emergency response planning and third-party damage prevention. 7. The terms and conditions to be included in any recommendation or approval the Board may issue for the Project.

PCFN believes that the evidence contained within this document contains insights from community members which will help it consider these issues and establish terms or conditions which Enbridge must adhere to.

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PCFN was granted standing as a participant in the NEB’s proceedings on Enbridge’s application regarding the Line 3 Replacement Program because the activities involves in the program, including the geographic location of the Line 3 Pipeline and associated worksites, either intersected or had the potential to directly or indirectly impact the traditional lands and the lives of the peoples who now comprise PCFN, including in particular, lands which fall under Treaty 4 territory.

Summary of Evidence Methodology

On September 21, 2015, the leadership of the Pine Creek First Nation held a meeting with its band members in the community to get input on their concerns and priority issues of the Enbridge: Line 3 Replacement Program Project (“Line 3 Replacement Project”). A quorum of council were in attendance and 85 band members participated. The input and views on the Enbridge Pipeline Project were based on opinions of the band members that were in attendance, some submitted short memos, telephone conversations and emails. Some valuable input was also provided by the elders of Pine Creek.

The input of the members in attendance was recorded by volunteers who were present and reduced to the writing contained in the balance of this report.

Written Evidence – Perspectives from the PCFN Community

Impact of the Project on Water

1. One elder was deeply concerned with water, and how the Line 3 Replacement Project might potentially impact water, either through contamination or through creating problems of access to it. The elder was especially concerned with the waters that peoples use for their consumption and way of life. He has accessed information which he believed demonstrated that the government, for the purpose of accessing taxes from projects like Enbridge and Potash, has put a claim on all water rights in Saskatchewan without consultation to First Nations. From the spiritual aspects of First Nations based on their teachings, no one has the right to own water. Water is a sacred gift from the Creator for man, animals, and plants to survive on. For First Nations water is more valuable than gold and should be enjoyed by all life.

PCFN wishes to ensure that all water rights which may be impacted by the Line 3 Replacement Project are duly respected and that they are consulted by Enbridge or other appropriate authorities with respect to any potential impact by the project upon waters which the community may access.

The Duty to Consult and Accommodate

2. The majority of Treaty 4 Chiefs in Saskatchewan are collaborating with Federation of Saskatchewan Indians against Enbridge. This is happening due to the fact that many resource development projects being implemented by various parties that involve no actual consultation with First Nations. It is noted that third parties are often given the protocol to consult with First Nations. According to a Supreme Court Ruling of 2004, it is the responsibility of the province to consult. Developers need to be educated on the Duty to Consult and Accommodate.

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PCFN maintains that non-government agencies, and especially those involved in resource development, must remain cognizant of their Duty to Consult and Accommodate First Nations whose interests may be impacted by their operations. PCFN’s concerns in this regard stem from what is perceived to be a long history of flagrant violations of this duty by various actors and agencies. Due to this history that is experienced by many First Nations across , it is important to PCFN that Enbridge continues to take a proactive approach to community engagement, consultation, and accommodation, for the duration of the Line 3 Replacement Project. PCFN also asserts that, as the authority to consider and determine the Aboriginal and Treaty rights and impact on said rights has been delegated by Canada to the NEB, the NEB must ensure that the consultation and accommodation measures within these proceedings are afforded the full and proper respect and weighting that they deserve.

Employment Opportunities 3. It is the understanding of the community that 3,823 full and part-time jobs will be available in Manitoba as a direct or indirect result of the Line 3 Replacement Program. At the time of the writing of this document, it is believed that Enbridge has promised PCFN only 5 jobs. This is unacceptable to PCFN. PCFN requires more jobs as the Enbridge Pipeline is running over and alongside Treaty 4 territory, in Alberta, Saskatchewan, and Manitoba.

4. The Chief and council of the Pine Creek First Nation are directing their negotiating skills, in good faith accessing jobs for their band members in the area of labour, pipeline installing, heavy equipment and truck driving opportunities. Currently, Pine Creek has an unemployment rate of about 85%.

5. Some members questioned what type of jobs would be available to the community on the Line 3 Replacement Program. The community facilitator informed them when Enbridge engages with PCFN in early October, they would provide that information. It must be noted that PCFN has a number of heavy equipment operators and truck drivers with a Class 1 license that would be willing and able to work on the project.

6. Former chief of Pine Creek recommended that long-term agreements should be signed with Enbridge and Manitoba Hydro to bring in a flow of jobs from time to time and resource sharing.

7. Enbridge should come up with a formula to equally distribute jobs to aboriginals and non-aboriginals.

It is a high priority for PCFN that its community members receive the employment-related benefits of the Line 3 Replacement Program. Given PCFN’s experience of high rates of unemployment, any opportunity for training and experience for its members is taken very seriously. PCFN takes the position that 5 employment opportunities is not a reasonable amount considering the number of employment positions available over the term of the project, and therefore will continue to negotiate with Enbridge to secure additional opportunities. The NEB should be mindful of PCFN’s high prioritization of experience and skill-building in the community. PCFN prefers to enter long term formal agreements for employment opportunity and support so as to ensure its ability to plan accordingly. PCFN also states the importance of ensuring that a meaningful employment engagement process put in place, in which discussions can occur, as per the arrangement it has

4 reached with Enbridge. These discussions would include directed tenders for employment positions towards PCFN, detailing the skills required, so that PCFN members could apply for those where they the criteria is met. Where criteria cannot be readily met, training and skill-boosting programs should be considered in order to enable members to participate in the project.

Contamination by Products During the Line 3 Replacement Project 8. One elder mentioned that a toxic chemical called Bitumen (toxic glue) will be used to connect and seal the pipeline which will poison water if major oil spills occur. The community is concerned as to how this product would be used and what safety precautions Enbridge will take in order to ensure that there is no environmental contamination from this product. The community is also concerned about receiving further notices and information from Enbridge in relation to potentially toxic or harmful substances being used on the Line 3 Replacement Project.

9. Some band members say it is "scary" what's happening out there when it comes to mega projects that explore the land. They are concerned on the rapid growth of climate change and global warming. Major projects have had serious ramifications on the ecosystem, biodiversity, and the morphology of all living things. More pollution will be created because of fossil fuel emissions from the vehicles, heavy equipment and other small motorized vehicles used in this project, even oil leaks from the machines.

10. During the installation of new Enbridge Pipeline it is recommended by some elders that PCFN be a part of the process to monitor the installation for environment concerns. These participants would assist to recognize sacred areas, artifact areas and harvesting areas. They would also observe how Enbridge managers and field workers treat the aboriginal work force. 11. We are questioning when it comes to the control and maintaining the weed growth on right-of-way, what method is going to be used? As First Nations who respect Mother Earth we are seriously recommending manual scrubbing or mulchers to be used avoid using herbicides.

The PCFN community is very concerned with ensuring the health of its members and of the environment for any projects which occur on or around their traditional lands. It is important to PCFN that Enbridge keep them informed as to the potential risks as well as contingency plans to prevent and safeguard against contaminants which may be used or produced in the course of the Line 3 Replacement Project. PCFN regards this as being a part of the duty to consult and accommodate them as a First Nation, as PCFN must remain informed of such risks in order to make informed decisions about how it will participate in or sanction projects in its territories. PCFN also wants to remain informed so that it can offer meaningful consultation on how Enbridge can best mitigate environmental impacts in and upon the land with which PCFN is very familiar. Given the scope of the Line 3 Replacement Project, there is a potential for far more environmental impact beyond the obvious potentials for product spills and direct contamination. PCFN must remain informed and have a voice in each aspect of the project which could potentially impact the environment or the people, no matter how small it is. This is especially important as, despite Enbridge’s expertise in some areas, only PCFN is in a position to identify areas of sacredness. PCFN believes that it would be to the benefit of all concerned if Enbridge utilized their expertise and knowledge of the lands.

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Transparency and Understanding the Project

12. It was mentioned that Enbridge is a corporation and is not privately owned, which means that Enbridge's job is to bring huge returns to its investors even if it means disturbance to the environment, land, humans, and all other living things.

13. Some band members of PCFN require a more transparent report from Enbridge where the line is going through, highlight the rivers, creeks, streams and type of habitats that are alongside the pipeline.

14. PCFN wants to ensure Enbridge is transparent about its oil spill emergency plans and remediation plans. We know that oil spills have serious environmental and health consequences. Pollution, fires, property and land damage, water poisoning, and destructs habitats of birds, fish, and many other animals. For humans, oil spills hold the potential of cancer and leukemia.

15. Map that was provided to band membership is not transparent enough. Band requires a more detail map exactly where the line runs. Cities, towns, native communities should be listed, including lakes, rivers, creeks, streams, and habitats of wildlife.

PCFN places a high priority on continued engagement with the Line 3 Replacement Program, as it does with any other project which impacts its lands and peoples. In order to facilitate this engagement it is crucial that the leadership of PCFN is fully informed of the scope of the project so that it can communicate this information to the membership, as well as make informed decisions. At the time of this report, it is recognized that it is still early in the engagement process, however PCFN must make clear its expectations that there will be full and meaningful disclosure of information relating to the project which is necessary for PCFN to consider in relation to protecting its interests.

Contamination and Contingency Planning for Product Spills

16. How strong and durable is the new pipeline going to be once it is replaced? Will it be capable of withstanding floods, strong winds, and small twisters out there? Is there a plan in place to mitigate a disaster if it happens?

18. One person stated that Enbridge should utilize stainless steel pipes to prevent erosion, thus preventing leaks. Yes, it would be a huge added cost for Enbridge, however PCFN requests that Enbridge take this into consideration, and utilizes the best material to prevent erosion regardless of the cost.

19. What is Enbridge's assurance on spills? Is the strict monitoring and the strategically placed valves to stop spills enough? And how do you detect the first spill that occurs, i.e., for the year 2009, Enbridge reported 69 spills in Canada and 20 in the United States.

20. Some band members are concerned about health issues if oil spills spew from the pipeline, spills will travel to lakes, creeks, rivers, streams and will end up in watersheds and gradually reach communities.

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PCFN must be informed as to the details of contingency plans exist to prevent or remediate contamination by product spills once the new Line 3 pipeline is operational. Given the potential for substantial direct environmental and damage downstream effects of spills or contamination on PCFN, it PCFN makes it a high priority that monitoring and response mechanisms be in place to quickly contain spills.

General Environmental and Cultural Priorities and Concerns

21. Start moving away from the use of fossil fuels, use solar energy for commercial buildings and homes.

22. The waterfowl and the animals we trap and hunt for food must always be respected. Their territory must be respected and not be altered for the sake of money and greed. One member asked what type of mitigation process is used to protect and alert these animals if a major oil spill occurs.

23. One elder is recommending to be a part of the Enbridge team to educate the importance of respecting the rights of aboriginals, the animals, the water, and the land.

PCFN speaks as one of many First Nations governments that has a significant stake in the Line 3 Replacement Project, and as such, requires that the values and traditions of its people be properly considered and accommodated where appropriate. The on-going health and wellness of the environment, including the lands and water ways, and the plants and animals which inhabit them are integral to the lives of PCFN members. Further, the relationships between the people, the lands, and the animals, have been recognized and affirmed through both Aboriginal and Treaty Rights, and PCFN requires that the integrity of these rights be preserved in all dealings with the government or third parties.

Summary of Recommendations to the National Energy Board

Based on the preceding input which was recorded from members of PCFN at the community meeting held on September 21, 2015, PCFN submits the following recommendations to the NEB for its consideration in the issuance of terms for Enbridge in the granting of the certificate for the Line 3 Replacement Program.

1. The welfare and integrity of waterways and Aboriginal and Treaty Rights directly or indirectly impacted by the health of waterways, in particular, those in Treaty 4 territory, must be adequately safeguarded. 2. The duty to consult and accommodate with respect to potential impacts on Aboriginal and Treaty rights has been engaged in this application by Enbridge and the NEB must ensure that Canada’s obligations under this duty are fulfilled. 3. Employment opportunities for PCFN, as a First Nation with substantial interests in the Line 3 Replacement Program engagement area, should be considered in the weighing of the necessity and benefits of the Line 3 Replacement Program. In particular, it must be recognized that providing long term employment, training, and capacity building for PCFN and its members must always be a crucial part of the engagement process.

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4. Adequate safeguards must be in place to ensure that direct and indirect environmental impacts from work on the Line 3 Replacement Project are anticipated and mitigated, which should include consultation with local stakeholders familiar with the lands in questions, such as PCFN. 5. Transparency in the provision of information to PCFN and other stakeholders must be viewed as a crucial element of the engagement process between Enbridge and the participants to these proceedings. 6. There must exist adequate safety precautions and contingency planning to avoid product spills, and these plans must be communicated to PCFN leadership in order to ensure that the PCFN community take appropriate actions. 7. The Aboriginal perspective must continue to form part of the dialogue in this project and others like it, and due weight must be given to the views and priorities of community stakeholders.

These recommendations are made to provide a record of the concerns and priorities of PCFN. By making these recommendations, PCFN is not suggesting that Enbridge has failed to address these concerns or priorities, and acknowledges that at the time of drafting of this report, it is still early in the engagement process with Enbridge. The recommendations are made with the understanding that Enbridge is continuing to engage with PCFN and will be acting to reasonably and satisfactorily address project-related concerns.

Conclusion

PCFN maintains its support for Enbridge’s Line 3 Replacement Program, however it must also voice its concerns and its priorities in how the project will be conducted. It is the hope of PCFN that the NEB will consider these concerns and priorities, along with the submissions of other interested First Nations communities, in making its recommendations and approvals of the Line 3 Replacement Project. At the time of the submission of this report, PCFN is looking forward to further and continued meetings and discussions with Enbridge to address the concerns noted in this report.

PCFN asserts and maintains that the NEB, having been delegated the authority to oversee these regulatory proceedings by the government of Canada, must act to ensure that all of the obligations of Canada with respect to First Nations and Treaty peoples are respected. This includes the requirement to ensure Treaty rights are protected and that there is meaningful consultation and accommodation with First Nations stakeholders in projects which have the potential to impact Aboriginal and Treaty rights. As such, PCFN submits this summary of the concerns, priorities, and views of its membership to the NEB, trusting that this information will be given all of the weight and consideration as would be due to it by the Government of Canada, in furtherance of the duties it owes to First Nations peoples.

In closing, PCFN reiterates its position that potentially everything about its way of life is at stake in this project. Is it going to get better for First Nations or are we going to lose more land because of man's economic drive for material value and money? Are we going to be part of the picture just for today for Enbridge's application to get a smooth ride, and once approved are the jobs that have been promised be still there?

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As one member said in our gathering it is getting "scary". We are losing the so called game of "balance of nature" and "global warming" because of our economic drive for money and material things. Without even blinking an eye, exploitation and heavy development continues at a very high pace with not enough strong environmental measures put in place. The global market has taken over, the laws of commerce are now smoother than the law of the land, and moral and ethical standards are measured in profit margins. We must slow down instead of running in all directions to get rich. We must stop and think and ask ourselves, is this the way to do it? It is great to have a job but we must do it right.

It is without prejudice or malice to Enbridge that this evidence report is submitted to the National Energy Board. PCFN remains optimistic that its continued collaboration with Enbridge will result in an open on-going dialogue which ensures the benefits and protection of interests for both the local community and Enbridge.

End of Document

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