Public Comments Value Chain Solutions Inc. VCS-Heartland Complex Expansion

February 2020

From: Tim Dickson To: AEREnvironmental Assessment Cc: "[email protected]"; "[email protected]"; "[email protected]" Subject: Enoch Nation - Preliminary Comments on the VCS-Heartland Expansion Project EIS Terms of Reference Date: February 10, 2020 10:25:45 PM Attachments: Enoch Cree Nation - Comments on the VCS Upgrader EIS Terms of Reference.pdf

Hello – Please find attached Enoch Cree Nation’s preliminary comments on the proposed terms of reference for the environmental impact assessment of the VCS-Heartland Upgrader Project. Regards, Tim Dickson (he/his/him) Principal JFK Law Corporation 340 - 1122 Mainland Street Vancouver, BC V6B 5L1 T 604 687 0549 ext 108 C 604 992 2720 F 604 687 2696 E [email protected] www.jfklaw.ca

Please consider the environment before printing this email. CONFIDENTIALITY: This e-mail message (including attachments, if any) is confidential and is intended only for the addressee. Any unauthorized use or disclosure is strictly prohibited. Disclosure of this e- mail to anyone other than the intended addressee does not constitute waiver of privilege. If you have received this communication in error, please notify us immediately and delete this. Thank you for your cooperation. Tim provides his services through a personal law corporation.

February 10, 2020

VIA E-MAIL: [email protected]

Alberta Energy Regulator SW Suite 1000 - 250 5 St.

Calgary, AB T2P 0R4

Attention: Director, Environmental Assessment

Dear Sir/Madam:

Re: VCS-Heartland Expansion Project – Enoch Cree Nation’s Preliminary Comments regarding the Proposed Terms of Reference for the Environmental Impact Assessment

I write on behalf of Enoch Cree Nation (ECN) in respect of the above-noted project (the Project), a proposed expansion of the Value Creation Inc. Heartland Oil Sands Processing Plant. The Project is a reviewable project under the Environmental Protection and Enhancement Act (EPEA) and thereby requires an Environmental Impact Assessment (EIA). VCS has prepared a proposed Terms of Reference for the EIA. ECN has reviewed the draft Terms of Reference and has identified the following initial areas of concern that need to be addressed. We are committed to working in a constructive and timely manner with the proponent, the GOA and Government of (GOC) in the engagement, consultation and project review being conducted in relation to the Project.

ECN is a signatory to 6. We hold and exercise Treaty and Aboriginal rights and continue to exercise those rights throughout ECN’s traditional territory, and indeed throughout territory. The Project area, and the areas immediately surrounding it, were historically utilized by our ancestors, and ECN members – many of whom live off-reserve – continue to live in and use the watershed and airshed in which the Project is situated. Indeed, the North River – which runs alongside the Project area and from which the Project will draw water – is one of the pillars that has supported us for generations beyond counting.

From ECN’s preliminary review, we stand to be deeply impacted by the Project, and we expect to be meaningfully consulted by as a result.

Turning to the Terms of Reference, we begin by making two points in overview. First, the Supreme Court of Canada made clear in the Clyde River case (Clyde River (Hamlet) v. Petroleum Geo-Services Inc., 2017 SCC 40, [2017] 1 S.C.R. 1069) that consultation and accommodation concern impacts to Aboriginal and treaty rights, not simply to biophysical and social factors. An environmental assessment that focuses only on environmental and social effects, therefore, does little to advance consultation. That concern holds for the Terms of Reference for the EIS on the Project: they focus solely on environmental and social impacts. While the Terms of Reference require an assessment of impacts to historic resources, “traditional, medicinal and cultural purposes” and “”, nowhere do they require a direct assessment of the Project’s impacts to Treaty rights.

Given this, ECN recommends that further deliberation and consultation occur in respect to the Terms of Reference with ECN and other potentially impacted Indigenous groups and that they be amended in a manner to squarely address and assess impacts to Treaty rights. Further, any specific Indigenous related information requirements set out in the Terms of Reference should be addressed via reasonable consultative and collaborative efforts and through the development on a Joint Impact Assessment Workplan with the ECN (and other interested Indigenous groups).

The second broad point is that, as with many other projects, the Terms of Reference are far too broad and fail to provide the necessary prescriptive guidance and criteria on how Project impacts are to be identified, assessed and addressed within a science-based paradigm. The lack of detail and prescriptive requirements at the Terms of Reference stage can mean that baseline information gathering and monitoring measures are not sufficiently detailed to allow assessors to evaluate the accuracy of impact assessment predictions. ECN therefore recommends that greater specificity be built into the Terms of Reference.

With respect to more specific comments on the Terms of Reference, without capacity funding we are not able at this time to comment on most of the terms, but we do make the following comments on Section 4: Historical Resources, and Section 5: Traditional Ecological Knowledge and Land Use.

As currently drafted, Section 4 of the Terms of Reference does not require the proponent to clearly describe how:

• Baseline information is to be collected with the ECN and other interested Indigenous People; • Baseline information is to be characterized and evaluated and assessed within an appropriate cultural context with the ECN and other interested Indigenous People; • The proponent will schedule baseline information gathering and consult and collaborate with the ECN and other interested Indigenous People in respect to research design and implementation; • The proponent will conduct baseline information in a manner that respects and

2

engages ECN cultural and protocols and responsibilities; • Baseline information gathered will be utilized to inform the proponent’s effects assessment work and analysis; • The proponent will review its effects assessment conclusions with the ECN and obtaining and addressing the ECN’s perspectives and views on the proponent’s findings: • The proponent will review mitigation, site plans and environmental management plans with the ECN and obtaining the ECN’s perspectives, views and recommendations; • Identified effects / impacts will be addressed through construction, monitoring and follow up phases of the Project’s development; and • Measures will be developed to meaningfully involve ECN technicians and knowledge holders in construction monitoring and to address any circumstances where unknown historic resources (in-situ) may be encountered and impacted during construction. In light of these gaps, ECN recommends that the Terms of Reference be amended to require the proponent undertake reasonable efforts to establish a plan of action or program that addresses the above elements in consultation and collaboration with the ECN (and other interested Indigenous People).

As for Section 5, it does not require the proponent to clearly describe how:

• The proponent intends to gather baseline and undertake an assessment if impacts to the ECN’s Treaty rights and culture (and that of other impacted Indigenous People); • How ECN Treaty rights are to be identified along with the appropriate values and indicators selected with the ECN to allow for a methodologically defensible approach to the assessment of Project impacts on Treaty rights and the culture of the ECN; • How the proponent intends to consult and collaborate with the ECN in respect to the gathering of rights and cultural baseline information to inform interactions and impact assessment analysis; • How existing constraints and land use / development stressors act to limit, hinder or bar the exercise of ECN Treaty rights and practice of culture will be factored in / accounted for to establish an appropriate baseline for the assessment of impacts to ECN rights and culture and context for Project impacts; • How the proponent intends to work with the ECN to assess, evaluate and validate identified impacts on rights and culture; • How the proponent intends to assess and address related / integrated matters such as intensified land use and cultural alienation of the ECN from the Project area and Industrial Heartland area and the relationship to ECN member health

3

and wellness; and • How the proponent intends to work with the ECN to review the efficacy of proposed avoidance, mitigation and offset measures, monitoring and follow up programs. ECN therefore recommends that the Terms of Reference be amended to require the proponent undertake reasonable efforts to establish a plan of action or program that addresses the above elements in consultation and collaboration with the ECN (and other interested Indigenous People).

We share the above comments with the aim of improving the assessment of the Project, the regulatory process to be relied upon, and the working relationships between the parties. We look forward to engaging in good faith, meaningful consultation in respect of this Project.

Thank you,

Michelle Wilsdon Councillor – Office of the Chief Enoch Cree Nation 780-270-8950 [email protected]

cc: Chief Billy Morin: [email protected] Cindy Yin (Value Chain Solutions Inc.): [email protected] Tim Dickson, JFK Law Corporation: [email protected]

4

From: Ifeoma Okoye To: AEREnvironmental Assessment Cc: ; Richard Secord Subject: Comments on VCS proposed Terms of Reference for its EIA Date: February 10, 2020 11:44:34 AM Attachments: 2020 02 10 LT AER re comments on PTOR.PDF

Good morning, We act for Jo Hair and Tanning Studio Ltd. Please find attached Jo Hair and Tanning Studio Ltd’s comments on Value Chain Services’ proposed Terms of Reference for its EIA. Yours truly, Ifeoma Okoye Ifeoma M. Okoye, LL.M, Partner Ackroyd LLP | www.ackroydlaw.com T 780 412 2716 | F 780 423 8946 E [email protected] 1500 First Place, 10665 Jasper Avenue NW, Edmonton AB Canada T5J 3S9 Bio | vCard The contents of this e-mail are confidential and subject to solicitor/client privilege. If the reader is not the intended recipient or its agent, be advised that any dissemination, distribution, or copying of the content of this e-mail is prohibited. If you have received this e-mail in error, please notify us immediately and destroy any copies you may have. Thank you