IN THE MATTER OF THE ENERGY RESOURCES CONSERVATION ACT R.S.A. 2000, C. E-10; AND THE OIL SANDS CONSERVATION ACT, R.S.A. 2000, C. 0-7; AND IN THE MATTER OF THE CANADIAN ENVIRONMENTAL ASSESSMENT ACT, S.C. 1992, c.37; AND IN THE MATTER OF A JOINT PANEL REVIEW BY THE ALBERTA ENERGY RESOURCES CONSERVATION BOARD AND THE GOVERNMENT OF CANADA;

AND IN THE MATTER OF ERCB APPLICATION NO. 1554388 AND CEAR NO. 59540, JACKPINE MINE EXPANSION, ALBERTA

Submissions of the Attorney General of Canada In Response to Notices of Question of Constitutional Law Filed with the Joint Review Panel

Kirk Lambrecht, Q.C./Janell Koch

Justice Canada EPCOR Tower 300, 10423-101 Street Edmonton, AB T5H 0E7

Tel: 780 495 2968 Fax: 780 495 8491 Email: [email protected]

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TABLE OF CONTENTS

Overview ...... 4 Part I: Facts ...... 7 Overview ...... 7 Approvals Required for the Shell Jackpine Mine Expansion ...... 7 The Initial Jackpine Mine Project ...... 9 EIA & EPEA Review...... 9 Creation of a Joint Review Panel for the Initial Jackpine Mine ...... 10 Shell‟s Agreements with First Nations ...... 10 The Panel‟s Consideration of Aboriginal Views ...... 11 The Initial Jackpine Mine Panel Decision ...... 11 Approvals of the Initial Jackpine Mine ...... 12 Jackpine Mine Expansion ...... 12 Alberta‟s Initial Review – EIA and Consultation Requirements ...... 12 Federal and Provincial Approaches to Aboriginal Consultation ...... 12 Aboriginal and Public Input on Proposed Terms of Reference ...... 14 EIA – EPEA Review ...... 14 ERCB Notices of Application ...... 14 Aboriginal and Public Input on EIA - Statements of Concern ...... 15 EPEA Sufficiency Review ...... 16 Aboriginal and Public Input on AENV and ERCB SIRs – Jackpine Mine Expansion ...... 16 EPEA Review Complete ...... 16 Federal EA Required – Referral to JRP ...... 17 Aboriginal and Public Input on Draft JRP Agreement and TOR ...... 17 The Mandate of the Jackpine Mine Expansion Panel Respecting Aboriginal Rights and Interests ...... 18 Establishment of Jackpine Mine Expansion JRP and Appointment of Panel members ...... 18 Participant and Aboriginal Funding - Jackpine Mine Expansion ...... 18 Traditional Knowledge and Traditional Land Use Information ...... 19 First Nation Consultation and Technical Review Submission – Evidence...... 20 Hearing Order ...... 20 Notice of Constitutional Question ...... 20 Part II: Issues...... 22

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Part III: Submissions ...... 23 The Duties of a Tribunal As Regards the Assessment of Crown Consultation and Accommodation ...... 23 The Duties of the Jackpine Mine Expansion Joint Review Panel under its Enabling Legislation: Presentation of the Overall Legislative Context ...... 23 The Panel Performs a Planning Function at this Time ...... 24 Conclusion ...... 33 Part IV: Order Sought ...... 34 Appendix I: Concordance of Aboriginal Concerns with Reference to the Panel Report on the Initial Jackpine Mine...... 35 Appendix II: Basic Information on the Parties Filing Notice of Question of Constitutional Law ...... 48 Appendix III: Federal Approach to Aboriginal Consultation for the Shell Jackpine Mine Expansion ...... 50 Endnotes ...... 58

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OVERVIEW “the Panel's mandate to receive and report on potential impacts on aboriginal rights is not eroded in any way by the notice requirement or potential referral of a question of constitutional law to the Court.” 1

1. Whether or not this Panel has jurisdiction to assess the adequacy of Aboriginal consultation by the Crown is a question of law. Whether this Panel should assess the adequacy of Crown consultation is a matter for the discretion of the Panel having regard to the context of the case.

2. Aboriginal parties submit that the Panel has jurisdiction, and that it should exercise that jurisdiction. Alberta, relying upon the interlocutory ERCB decision in respect of the Taiga SAG-D mine project, submits that the ERCB does not have this jurisdiction; and, by extension, the Joint Review Panel could not have the jurisdiction.

3. In the event that the Panel rules that it has no jurisdiction, it is possible that a Court of law may disagree. Should that occur, the potential arises that the proceedings will be vitiated and the matter returned to the Panel for reconsideration. Should approvals of the Application be granted in the meantime, such approvals could be placed in jeopardy.

4. To assist the Panel, and without conceding in any way that the Panel has jurisdiction to assess the adequacy of Aboriginal consultation by the Crown, the Attorney General of Canada presents a fresh perspective in the interests of providing the Panel with a variety of submissions. The Attorney General submits that it is not necessary for the JRP to determine at this time whether or not it has jurisdiction to assess the adequacy of Crown consultation by either Alberta or Canada. This is because -- in the context of the case at bar -- the assessment of the adequacy of Crown Aboriginal consultation and accommodation reasonably and correctly belongs to the Crown rather than to this Panel, and will be undertaken at later stages of the project development process. In such a context, the Panel may decline to make a ruling on its jurisdiction to assess the adequacy of Aboriginal consultation by the Crown. Assuming (without conceding) that such jurisdiction exists, it should not in any event be exercised in this case.

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5. The assessment of the adequacy of Crown consultation belongs to a later stage of the project development process because responsibility for measuring project effects on actual or asserted Aboriginal or Treaty rights is a matter which both the Legislature and Parliament have delegated to this Panel at this stage of the project development process for this Project. Assessment of the adequacy of Aboriginal consultation by the Crown should not be undertaken in advance of the findings of this Panel respecting Project impacts on actual or asserted Aboriginal or Treaty rights. The Proponent, and the executive branches of Government, are entitled to rely on this Panel to perform this statutory function. The Panel is not obligated to assess the adequacy of Crown consultation and accommodation. Crown consultation and accommodation is integrated with this Panel‟s process; and the future Crown decisions about the adequacy of its Aboriginal consultation and accommodation approaches are intended to be informed by the Panel Report.

6. Section 6.3 of the JRP‟s Terms of Reference does not obligate this Panel to assess the adequacy of Crown consultation. Section 6.3 provides:

6.3 Notwithstanding articles 6.1 and 6.2, the Joint Review Panel is not required by this agreement to make any determinations as to:

a. the validity of Aboriginal or treaty rights asserted by a participant or the strength of such claims;

b. the scope of the Crown's duty to consult an Aboriginal group; or

c. whether the Crown has met its respective duties to consult or accommodate in respect of rights recognized and affirmed by section 35 of the Constitution Act, 1982.

7. In the legislative context of this case, neither Parliament nor the Legislature have delegated to this Tribunal the obligation to assess the adequacy of Crown consultation. The ERCB, and the JRP by virtue of its adoption of the ERCB Rules of Practice and Procedure for this case,2 is a quasi-judicial Tribunal and certainly has discretion to decide how to proceed having regard to the context of the case before it. In exercising that discretion, the JRP should have regard to the fact that the JRP Report is intended to inform future Crown decisions, and will be material to future Crown decisions respecting the adequacy of Aboriginal consultation and accommodation. In this context the JRP

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should also consider (1) that the JRP has received, from the Legislature and Parliament, a delegated function to consider evidence tendered by Aboriginal peoples, and others, respecting project impacts upon actual or asserted Aboriginal or Treaty rights, and to make predictive (or planning) findings about such Project impacts in order to inform subsequent Crown decisions; and (2) that the JRP is still carrying out this function.

8. The Crown is ultimately responsible for determining whether Crown consultation and accommodation is sufficient in respect of the Crown‟s project development decisions respecting the Shell Jackpine Mine Expansion Project. The proposition advanced here is not an attempt to avoid constitutional obligations resting upon the Crown.3 The proposition advanced here recognizes that, when taking up land for oil sands mines, Crown decisions about the adequacy of Aboriginal consultation and accommodation should be informed by the JRP findings about project impacts on actual or asserted Aboriginal or Treaty rights. This means that a Crown decision about sufficiency of consultation and accommodation is correctly taken after the JRP/ERCB Report but before federal decision making under the Canadian Environmental Assessment Act, 2012, or other federal statutes. An examination of the overall regulatory context reveals that this rationale also applies to provincial approval decision making under the Environmental Protection and Enhancement Act (EPEA), or other provincial statutes.

9. In these submissions the phrase “Jackpine Mine Expansion”4 is used to refer to the Project which this Panel is examining. The phrase “existing Jackpine Mine” is used to refer to the mine which was the subject of earlier planning and approval process.

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PART I: FACTS

Overview

10. The regulatory process in the present case is described in detail here, because the Supreme Court mandates that each case involving the law of Aboriginal consultation be resolved in its unique context. Emphasis is placed on those details involving Aboriginal engagement because CEAA, 2012 specifically defines “environmental effect” as including

5. (1) For the purposes of this Act, the environmental effects that are to be taken into account in relation to an act or thing, a physical activity, a designated project or a project are …..

(c) with respect to aboriginal peoples, an effect occurring in Canada of any change that may be caused to the environment on

(i) health and socio-economic conditions,

(ii) physical and cultural heritage,

(iii) the current use of lands and resources for traditional purposes, or

(iv) any structure, site or thing that is of historical, archaeological, paleontological or architectural significance.

The full legislative context reveals that this Panel is specifically responsible for assessing the significance of such effects, and preparing a report to inform the Crown. This Panel is uniquely well placed to make that assessment.

Approvals Required for the Shell Jackpine Mine Expansion

11. The Crown must issue approvals for the development of a major resource project like the Jackpine Mine Expansion. The federal and provincial environmental assessment and regulatory review regimes which precede these approvals are harmonized, and integrated. But the reality remains that numerous future approvals are required for such a Project to proceed.

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12. In December 2007, Shell announced its intention to file Applications for the following licences: the Alberta Energy and Utilities Board, pursuant to the Energy Resources Conservation Act (ERCA) and Section 13 of the Oil Sands Conservation Act (OSCA),5 to amend the Jackpine Mine – Phase I Approval No. 9756 for approval to access additional mining areas on Oil Sand Leases 7277080T13 (Lease 13), 728101AT36 (Lease AT36), 7288080T88 (Lease 88), 7288080T89 (Lease 89), 7405120015 (Lease 015) and 7405090631 (Lease 631), and to modify and add processing units to the Jackpine Mine – Phase 1 oil sands processing facilities, located about 70 km north of Fort McMurray, Alberta. The expected processing capabilities of these modifications and additions will increase the average nominal capacity of the facilities by 5.8 million m3/a (36.5 million bbl/yr), or 15,900 m3/d (100,000 bbl/d) of dry bitumen, for a total average nominal capacity of the expanded facilities of 17.4 million m3/a (109.5 million bbl/yr) or 47,700 m3/d (300,000 bbl/d) of equivalent dry bitumen.

the Alberta Energy and Utilities Board, pursuant to the Energy Resources Conservation Act (ERCA) and Section 13 of the Oil Sands Conservation Act (OSCA),6 for approval to construct and operate an oils sands mine and bitumen extraction plant and associated facilities on Oil Sand Leases 740012009 (Lease 9) and 7401100017 (Lease 17), to be known as Pierre River Mine, located about 90 km north of Fort McMurray, Alberta and to the west of the Athabasca River. The expected production rate from the project area is 11.6 m3/a (73 million bbl/r), or 31,800 m3/d (200,000 bbl/d) of equivalent dry bitumen.

the Alberta Energy and Utilities Board, to receive third party oil sands material (mined ore or intermediate process streams, such as bitumen froth) at the Jackpine Mine Expansion and Pierre River Mine facilities for processing.

the Alberta Energy and Utilities Board, to produce and ship oil sands material (mined ore or intermediate process streams, such as bitumen froth) from the Jackpine Mine Expansion and Pierre River Mine facilities for processing at third- party facilities.

Alberta Environment, pursuant to sections 67 and 70 of the Environmental Protection and Enhancement Act (EPEA) for an amendment and renewal of the Jackpine Mine – Phase 1 10 year operating approval (No. 153125-00-00 as amended), for the Jackpine Mine Expansion.

Alberta Environment, pursuant to sections 49, 50, 51, 54, and 59 of the Water Act, for an amendment and renewal of an existing licence to divert water for use at the Jackpine Mine Phase – 1 Project and a new licence to divert additional quantities of water from the Athabasca River and other surface and groundwater sources for the Jackpine Mine Expansion, as set out in the application documents.

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In addition to these provincial approvals, Federal approvals are required under the Fisheries Act, as amended; and under the Navigable Waters Transportation Act, as amended.

The Initial Jackpine Mine Project

13. The Jackpine Mine Expansion Project is an addition to the initial Jackpine Mine. The potential for addition to the initial mine has been known by all parties to the initial mine application. Alberta and Canada worked with the Fort McKay First Nation to finalize the Fort McKay First Nation Treaty Settlement Agreement (TLE). The Fort McKay TLE resulted in the addition of Indian Reserve 174C to Fort McKay‟s existing reserve lands. IR 174C is located adjacent to the proposed Jackpine Mine Expansion Project. To facilitate exploitation of bitumen within this reserve, the Governor in Council passed the Fort McKay First Nation Oil Sands Regulation pursuant to the First Nations Commercial and Industrial Development Act17 Contemporary press releases provide background to this.8

14. Shell sought approval for the initial Jackpine Mine in October 2001. What follows below is a detailed description of the process of that Project through federal and provincial planning functions with particular reference to consideration of Aboriginal concerns.

15. Shell acknowledges that the initial Jackpine Mine is located on lands once used for traditional purposes by members of the Fort McKay First Nation in an area which was, historically, also used by other Aboriginal groups including the Athabasca Chipewyan First Nation and Métis of the region.9 Prior to commencing development of the initial Jackpine Mine, Shell undertook consultations with the Aboriginal groups who were identified as being potentially or actually impacted.10

EIA & EPEA Review

16. Shell submitted three Applications to the Alberta Energy and Utilities Board (EUB) in respect of the initial Jackpine mine. In support of its proposal, and as part of its application to the EUB, Shell also submitted an Environmental Impact Assessment (EIA) to Alberta Environment (AENV), pursuant to EPEA.11

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17. Application No. 1271285 was made by Shell pursuant to Sections 10 and 11 of the Oil Sands Conservation Act12 (OSCA) for approval of an oil sands mine and bitumen extraction facility in the Fort McMurray area. Shell also applied for approval to receive third-party oil sands for processing and to produce and ship oil sands from the site for third-party processing.13

18. Application No. 1271307 was made by Shell pursuant to Section 11 of the Hydro and Electric Energy Act14 for a cogeneration plant.15

19. Application No. 1271383 was made by Shell pursuant to Part 4 of the Pipeline Act16 for approval of an 8.5 kilometre (km) fresh water pipeline.17

Creation of a Joint Review Panel for the Initial Jackpine Mine

20. On June 26, 2003, the federal Minister of Fisheries and Oceans referred the existing Jackpine mine project to a review panel for environmental assessment18 under the Canadian Environmental Assessment Act19 (CEA Act (1992)). On August 18, 2003, Canada and the EUB entered into an agreement to establish a joint environmental assessment panel (JRP or Panel) for the project. Under the agreement, the Panel was charged with fulfilling the review requirements of both CEA Act (1992)20 and the Energy Resources Conservation Act21 (ERCA).

21. The Panel considered Applications No. 1271285, 1271307, and 1271383 at a public hearing held in Fort McMurray, Alberta, on October 6 through 10 and October 15, 2003.22 Interveners providing evidence at the hearing included the Athabasca Chipewyan First Nation (ACFN), Fort McKay First Nation and Métis Local #122 (Fort McKay), Mikisew Cree First Nations (MCFN), and Wood Buffalo First Nation (WBFN).23

Shell’s Agreements with First Nations

22. MCFN, ACFN and Fort McKay initially objected to the initial Jackpine Mine. However, as noted in the Panel Report, each of these Aboriginal groups withdrew their objections after reaching agreements with Shell.24 Agreements reached between Shell and MCFN, ACFN and Fort McKay do not form part of the Joint Review Panel Report, and do not form part of the EUB approval of the initial Jackpine Mine.25 However, the substance the

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Aboriginal groups‟ concerns, as well as Shell‟s commitments to mitigation measures responding to the Aboriginal groups‟ concerns, are reflected in the Panel Report.26

The Panel’s Consideration of Aboriginal Views

23. Although the MCFN, ACFN and Fort McKay withdrew their objections to the initial Jackpine Mine, those Aboriginal groups did participate in the hearing process and participated, inter alia in respect of some or all of the following topics: Water Management;27 Surface Water Quality;28 Surface Hydrology;29 Aquatic Resources;30 Groundwater;31 Climate Change;32 Terrestrial Resources (including Wildlife, Vegetation, Soils, Wetlands, and Forest Resources);33 Muskeg River Integrity;34 Regional Environmental Initiatives;35 Public Infrastructure/Services;36 Traditional Land Use;37 Human Health;38 Public Consultation.39

A concordance of Aboriginal concerns with reference to the Panel Report on the Initial Jackpine Mine is at Appendix I.

The Initial Jackpine Mine Panel Decision

24. The initial Jackpine Mine Panel issued its Report on February 5, 2004.40 The Panel found the Project to be in the public interest.41 The Panel Report identifies the subset of provincial approvals which the Panel was charged with considering: “...the Panel is prepared to approve Applications No. 1271307 (application for a co-generation plant) and 1271383 (application for a fresh water pipeline).”42 In respect of Application No. 1271285 (application for approval of an oil sands mine and bitumen extraction facility and application for approval to receive third-party oil sands for processing and to ship oil sands for third-party processing) the Panel indicates that it is

...also prepared to approve Application No. 1271285, subject to the approval of the Lieutenant Governor in Council. Furthermore, the Panel concludes that the project is unlikely to result in significant adverse environmental effects, provided that the

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mitigation measures proposed by Shell and the recommendations of the Panel are implemented.43

Approvals of the Initial Jackpine Mine

25. On February 25, 2004 the Lieutenant Governor in Council authorized the Alberta Energy and Utilities Board to grant Approval No. 9756 to Shell for construction and operation of the Jackpine Mine – Phase 1.44 Alberta subsequently issued other approvals.

26. On April 24, 2004 the Governor General in Council, on recommendation of the Minister of Fisheries and Oceans, pursuant to paragraph 37(1.1)(a) of the CEA Act (1992), approved Canada‟s response to the Report of the Joint Review Panel.45

Jackpine Mine Expansion

Alberta’s Initial Review – EIA and Consultation Requirements

27. Via separate letters dated March 6, 2007, and in response to Shell‟s Public Disclosure and Shell‟s advice that it intended to seek approval for the proposed Projects, AENV advised Shell that the proposed Projects are subject to the requirements of the Environmental Protection and Enhancement Act (EPEA)46 and that AENV had determined the proposed Projects to be mandatory activities pursuant to Schedule 1(i) of the Environmental Assessment (Mandatory and Exempted Activities) Regulation.47 Shell was also advised that pursuant to Section 44(1)(a) of EPEA an Environmental Impact Assessment (EIA) report would be required for the proposed Projects.48

28. Shell decided that it would file separate project applications for approval of the Jackpine Mine Expansion and the Pierre River Mine, but that each would rely on a single Environmental Impact Assessment (EIA).49 The proposed Projects moved concurrently through the EPEA process. These submissions focus on the Jackpine Mine Expansion project.

Federal and Provincial Approaches to Aboriginal Consultation

29. Alberta delegates the procedural aspects of its duty to consult with Aboriginal peoples to project proponents pursuant to the Alberta‟s First Nations Consultation Guidelines on Land Management and Resource Development (Guidelines on Land Management and

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Resource Development)50 the Government of Alberta‟s First Nations Consultation Policy on Land Management and Resource Development51 and the Framework for Consultation Guidelines.52

30. Alberta also requires oil and gas project proponents to execute delegated procedural aspects of consultation in accordance with Part IV, Oil and Gas Consultation Guidelines of Alberta‟s Guidelines on Land Management and Resource Development. The Part IV, Oil and Gas Consultation Guidelines are industry specific guidelines designed to ensure that project proponents undertake consultation procedures in a manner that is compatible with the project approval processes proponents must undertake to acquire the necessary provincial oil and gas project approvals.53

31. Alberta delegates the procedural aspects of consultation:

“Alberta remains fully engaged in the substantive aspects of consultation, and may take a role in the procedural aspects of project-specific consultation, when appropriate. For example, where disputes arise, Alberta encourages either party to seek direction from the appropriate government staff. While agreement is desirable, Alberta does not require consent by either First Nations or Proponents. Alberta has the final decision-making authority in assessing the adequacy of consultation. Where approval is given to move forward with a proposed project, Alberta has deemed consultation to have been adequate.”54

32. Alberta also reviews project proponents‟ consultation activities to ensure that project proponents have adequately consulted with aboriginal stakeholders and that proponents have complied with Part IV Oil and Gas Consultation Guidelines and the overarching Guidelines on Land Management and Resource Development.55

33. AENV notified Shell of its responsibility for execution of the procedural aspects of consultation for the proposed Projects via the March 6, 2007 letters.56

34. Canada‟s approach to Aboriginal Consultation is outlined in Appendix III, and flows from the Project Agreement prepared for this Project under Canada‟s Major Project Management Office initiative. The Major Project Management Office initiative arises from the Cabinet Directive on Improving the Performance of the Regulatory System.57 Aboriginal and Crown consultation is integrated into the overall regulatory process under this model of decision-making.

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Aboriginal and Public Input on Proposed Terms of Reference

35. In May 2007 proposed terms of reference (PTOR) were issued for both the Shell Jackpine Mine Expansion Project and also the Pierre River Project.58 Six groups responded to the request for comments on the PTOR, including the following Aboriginal groups:59 Athabasca Chipewyan First Nation Industrial Relations Corp.(IRC); Mikisew Cree First Nation Industry Relations Corp.(IRC); Fort McKay Industry Relations Corp.(IRC); Non-Status Fort McMurray Band Descendants (John Malcolm); and Métis Nation of Alberta, Local 1935, Fort McMurray.

36. On November 28, 2007 Alberta Environment issued final terms of reference (TOR) for the Projects.

37. On November 28, 2007 Alberta Environment issued a Public Notice60 announcing that the EIA for the Jackpine Mine Expansion and the Pierre River Mine would be reviewed as a cooperative assessment under the Canada-Alberta Agreement for Environmental Assessment Cooperation61 with Alberta taking the role as Lead Party for the cooperative assessment.

EIA – EPEA Review

38. On December 20, 2007 Shell submitted its separate applications and single EIA to the ERCB and AENV.62 On May 30, 2008 Shell provided the ERCB and AENV with an updated EIA for the proposed Projects.63

ERCB Notices of Application

39. On June 18, 2008 the ERCB issued separate Notices of Application.64 The ERCB Notice for the Jackpine Mine Expansion65 describes Shell‟s application in respect of that project as follows:

Application No. 1554388 to the ERCB, pursuant to Sections 12 and 13 of the Oil Sands Conservation Act,66

to amend EUB Approval No. 9756 to access additional mining areas, and carry out modifications, and add processing units to the Jackpine Mine Phase 1 processing facilities; and

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to receive third-party oil sands material (mined ore or intermediate process streams, such as bitumen froth) at the Jackpine Mine Expansion facilities, as well as to produce and ship oil sands material from the Jackpine Mine Expansion facilities.

Applications No. 005-00153125 and 006-00153125 to AENV, pursuant to Part 2, Division 2, of the Environmental Protection and Enhancement Act (EPEA),67

to amend EPEA Approval No. 153125-00-00 to include the construction, operation, and reclamation of the Jackpine Mine Expansion facilities in accordance with the application; and

to renew EPEA Approval No. 153125-00-00 to continue operating the Jackpine Mine for another 10-year period.

Application File No. 00186157 to AENV, pursuant to the Water Act, to authorize water management plans associated with the construction, operation, and reclamation of the Jackpine Mine Expansion, including the diversion of water from the Athabasca River through an existing approved water intake facility, as well as the diversion and impoundment of surface water as indicated below

the maximum additional annual diversion from the Athabasca River would be 18 000 000 cubic metres of water per year at SE24-095-11-W4

the maximum additional annual diversion from surface water runoff would be 24 500 000 cubic metres of water per year.

Aboriginal and Public Input on EIA - Statements of Concern

40. As stated in the ERCB Notice for the Jackpine Mine Expansion, any person who is directly affected by the EPEA application or the Water Act application, may submit a written statement of concern (SOC) under Section 73 of EPEA68 and Section 109 of the Water Act.69 Written statements for the proposed Projects were required to be submitted by October 2, 2008.

41. Thirteen70 interested parties provided written SOCs in respect of one or both of the Jackpine Mine Expansion and the Pierre River Mine, including the following Aboriginal groups: Mikisew Cree First Nation Industry Relations IRC;71 Athabasca Chipewyan First Nation IRC;72 Fort McKay First Nation IRC;73 Chipewyan Prairie Dene First Nation IRC;74 Fort McMurray #468 First Nation IRC;75

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Métis Nation of Alberta, Local 1935;76 and Wood Buffalo Métis Corporation.77

42. AENV accepted submissions from ten of the thirteen groups which had filed SOCs.78 Submissions were accepted from the following Aboriginal groups: Mikisew Cree First Nation Industry Relations IRC; Fort McKay First Nation IRC; Athabasca Chipewyan First Nation IRC; Chipewyan Prairie Dene First Nation IRC;79 and Fort McMurray #468 First Nation IRC.

43. Via letter dated December 10, 2008, Shell contacted groups whose SOCs had been accepted for filing. Shell advised each SOC filer that its concerns were being reviewed and that Shell was determining how, in view of the stated concerns, Shell‟s development of the proposed Projects might affect them.80

EPEA Sufficiency Review

44. Alberta‟s EPEA sufficiency review for the proposed Projects commenced in December 2007. AENV and the ERCB submitted three rounds of information requests (SIR) to Shell respecting the proposed Projects. Shell provided responses to AENV‟s and the ERCB‟s SIRs respecting the Jackpine Mine Expansion on December 18, 2009,81 June 1, 201082, and August 9, 2010.83

Aboriginal and Public Input on AENV and ERCB SIRs – Jackpine Mine Expansion

45. Athabasca Chipewyan First Nation IRC84 and Mikisew Cree First Nation85 provided the ERCB with submissions in respect of Shell‟s SIRs for the Jackpine Mine Expansion. Via letter dated August 31, 2010 the ERCB advised Mikisew Cree First Nation that the concerns outlined in their submissions would be taken into consideration by the ERCB when reviewing Shell‟s application.86

EPEA Review Complete

46. On October 14, 2010, in accordance with section 53 of EPEA, the designated Director of Environmental Assessment, Government of Alberta, Environment, advised the ERCB that the EIA report for the Jackpine and Pierre River projects was complete.87

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Federal EA Required – Referral to JRP

47. TC advised CEA Agency that as a consequence of its involvement with Alberta‟s EA, TC had identified a Section 5 trigger under the Canadian Environmental Assessment Act88 (CEA Act (2005)) for the Jackpine Mine Expansion: Approval under Section 5 of the Navigable Waters Protection Act (NWPA), a Law List Trigger, is required for the proposed bridges and Muskeg River diversion. As such, Transport Canada is a Responsible Authority.89

TC further advised that it was aware of “...public and Aboriginal concerns over potential human health risks, water management of the Lower Athabasca River, and adverse impacts on Aboriginal and Treaty rights and titles.”90

48. Via letter dated October 1, 2010, Fisheries and Oceans Canada (DFO) advised CEA Agency that if the Jackpine Mine Expansion were to proceed, an authorization under subsection 35(2) of the Fisheries Act would be required. DFO also advised CEA Agency that it was aware of concerns of Aboriginal groups over adverse impacts of the proposed Jackpine Mine Expansion in combination with other projects.91

49. On December 13, 2010, CEA Agency issued a News Release92 and Notice of Referral to a Review Panel93 advising that the Jackpine Mine Expansion and the Pierre River Mine would undergo environmental assessments by independent review panels.

50. Also on December 13, 2010, CEA Agency issued the Notice of Commencement of an Environmental Assessment for Jackpine Mine Expansion.94

Aboriginal and Public Input on Draft JRP Agreement and TOR

51. On March 7, 2011 CEA Agency posted the draft Agreement to Establish a Joint Panel for the Jackpine Mine Expansion Project (Jackpine Mine Expansion Panel Agreement), including the proposed Terms of Reference (TOR), on the CEA Registry.95 Five groups responded to the request for public comments on the draft Jackpine Mine Expansion Panel Agreement, including the following Aboriginal groups: Fort McKay First Nation and Fort McKay Métis Nation;96 and MCFN and ACFN.97

52. The finalized Jackpine Mine Expansion Panel Agreement was posted on CEA Agency registry on September 16, 2011.98 Following the coming into force of CEAA, 2012, the

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TOR of the Panel were amended. The amendments are not material for the purposes of these submissions.99

The Mandate of the Jackpine Mine Expansion Panel Respecting Aboriginal Rights and Interests

53. Article 6 of the Joint Review Panel Agreement specifically recognizes that the Panel will receive information from Aboriginal groups related to the nature and scope of asserted or established Aboriginal and treaty rights in the area of the project, as well as information on the potential adverse environmental effects that the project may have on asserted or established Aboriginal and treaty rights. The Panel is obligated to consider the effects of the project on the Aboriginal and treaty rights so presented. The Joint Review Panel may use this information to make recommendations that relate to the manner in which the project may adversely affect the Aboriginal and treaty rights asserted by participants.

Establishment of Jackpine Mine Expansion JRP and Appointment of Panel members

54. On September 20, 2011 the Chair of the ERCB of Alberta and the federal Minister of the Environment announced the establishment of a three-member joint panel to review Shell Canada‟s proposed Jackpine Mine Expansion project near Fort McMurray.

Participant and Aboriginal Funding - Jackpine Mine Expansion

55. On March 14, 2011 CEA Agency informed Aboriginal groups of the availability of Aboriginal funding under the Aboriginal Funding Envelope to assist Aboriginal groups wishing to participate in the environmental assessment of Jackpine Mine Expansion and Pierre River Mine.100 Participant funding and Aboriginal funding in support of participation in the environmental assessment of Jackpine Mine Expansion and Pierre River Mine was awarded on June 9, 2011.101

56. Non-Status Fort McMurray/Non-Status Fort McKay First Nation, Clearwater River Paul Cree Band #175, Patricia Whiteknife, Amanda Annand, Sierra Club Canada, and the Oil Sands Environmental Coalition were collectively allocated $239,940.00 in participant funding.102

57. Aboriginal envelope funding of $633,000.00 was divided between ACFN, MCFM, Métis Nation of Alberta Association Region 1 and Fort McKay First Nation to support those

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groups‟ participation in the environmental assessment of Jackpine Mine Expansion and Pierre River Mine.103 In October 2011, Fort McMurray First Nation, which applied after the April 15, 2011 deadline, received $100,000.00 funding.104

Funding allocations awarded by the Agency to each Aboriginal group to participate in the JPME and PRM Projects (Divide by 2 to obtain amount per project)

First Nation Aboriginal Funding under PFP

Athabasca Chipewyan First Nation $187,000 (ACFN)

Fort McKay First Nation (FMFN) $192,000

Fort McMurray First Nation (FMMFN) $77,600

Mikisew Cree First Nation (MCFN) $175,000

Métis

Fort MacKay Métis Local 63 Represented by FMFN

Fort McMurray Métis Local 1935 Represented by MNR1

Fort Chipewyan Métis Local 125 Represented by MNR1

Métis Nation of Alberta Association $82,500 Region 1 (MNR1)

Traditional Knowledge and Traditional Land Use Information

58. On July 22, 2011 Shell submitted two Supplemental Traditional Knowledge and Traditional Land Use information reports, prepared by ACFN and MCFN:105 ACFN Integrated Knowledge and Land Use Report and Assessment for Shell Canada‟s Proposed Jackpine Mine Expansion and Pierre River Mine (April 20, 2011);106

Mikisew Cree Use of Lands and Resources in the Vicinity of the Proposed Shell – Jack Pine and Shell – Pierre River Operations (January 17, 2011).107

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First Nation Consultation and Technical Review Submission – Evidence

59. On September 30, 2011, Shell provided information to the Jackpine Mine Expansion JRP about Aboriginal concerns about the Jackpine Mine Expansion and the work that Shell has undertaken to address those concerns. Shell provided the information as it is of the view that the information will contribute to Crown decision makers having a full understanding of the potential project impacts on the exercise of Aboriginal rights.108

60. Additional information respecting Traditional Knowledge and Traditional Land Use Information and Species at Risk surveys was filed with the Jackpine Mine Expansion JRP on November 15, 2011.109

Hearing Order

61. The Hearing Order issued by the Panel defined a process for receipt of NCQs:

“Under Section 25 of the ERCB Rules of Practice, a person who intends to raise a question of constitutional law before the Panel must give notice in accordance with Section 12 of the Administrative Procedures and Jurisdiction Act and its regulation. Questions of constitutional law must be sent to the Panel Secretariat, to the address indicated above, no later than October 1, 2012. These questions, if any are received, will be addressed the week prior to the start of the hearing, on October 23, starting at 9 a.m., at MacDonald Island Park. The Panel will issue further directions regarding the process for any questions of constitutional law to the parties interested in the questions. To obtain further information, contact the Panel Secretariat at the address indicated above.”110

62. On October 4, Counsel for the Panel advised that the Panel would give further direction on the process to be followed during the sittings on October 23, 2012.

Notice of Constitutional Question

63. Constitutional Questions of Law appear to be raised by three groups: Athabasca Chipewyan First Nation;111 Métis Nation of Alberta, Region 1;112 and Fort McMurray #468 First Nation.113

64. Athabasca Chipewyan First Nation (ACFN) asks two questions:

1. Has the Crown in right of Alberta discharged the duty to consult and accommodate ACFN with respect to the potential adverse effects of the Project on ACFN‟s Treaty Rights, as mandated by the Treaty and s. 35 of the Constitution Act, 1982?

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2. Has the Crown in right of Canada discharged the duty to consult and accommodate ACFN with respect to the potential adverse effects of the Project on ACFN‟s Treaty Rights, as mandated by the Treaty and s. 35 of the Constitution Act, 1982?

65. The Métis Nation of Alberta asserts that the Government of Alberta has not upheld its duty to consult with the Métis people whose asserted rights may be impacted by the Project. No reference seems to be made to the Crown in Right of Canada in this submission. Several Métis locals and individuals appear to be included in the ambit of this Submission.

66. Fort McMurray #468 raises one question:

1. Did the Crown fail to adequately consult with and accommodate the Fort McMurray #468 First Nation (FMFN) with respect to the impacts of the development of the Shell Canada Ltd.'s Jackpine Mine Expansion Project on FMFN harvesting rights?

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PART II: ISSUES

67. Whether or not this Panel has jurisdiction to assess the adequacy of Aboriginal consultation; and, if so, whether it should assess the adequacy of Crown consultation as requested in the NCQs which have been filed.

68. The position of the Attorney General is that the Panel does not need to determine whether or not it has jurisdiction to assess the adequacy of Crown consultation, because, having regard to the overall legislative context, the Panel should exercise discretion to decline to assess the adequacy of Crown consultation.

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PART III: SUBMISSIONS

“The Panel's hearing process may, however, assist the Crown to meet its consultation obligations…”114

The Duties of a Tribunal As Regards the Assessment of Crown Consultation and Accommodation

69. The Supreme Court decision in Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43, [2010] 2 S.C.R. 650115 stands for the proposition that “the role of particular tribunals in relation to consultation depends on the duties and powers the legislature has conferred on it.”116 The Supreme Court jurisprudence on the law of Aboriginal consultation and accommodation also makes it clear that each case will be determined in its specific context.117

70. It is necessary to examine the duties and powers conferred upon the JRP by the Legislature of Alberta and the Parliament of Canada, and appreciate the overall context in which these duties and powers are exercised.

The Duties of the Jackpine Mine Expansion Joint Review Panel under its Enabling Legislation: Presentation of the Overall Legislative Context

71. The Shell Jackpine Mine Expansion Project is a mine expansion, involving the amendment of existing approvals as well as the issuance of new approvals. The approach adopted in these submissions emphasizes the overall regulatory context in which the JRP operates, and the point in that process at which the JRP is asked to assess the adequacy of Aboriginal consultation.

72. In these submissions, the legislative context is presented in two levels of detail. Details of how the process actually operated in the context of the existing Jackpine mine and also the Jackpine mine expansion project, including links to source documents, are presented in Part I.

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73. In Part III the overall decision-making process is mapped out in the body of these submissions. Charts and diagrams are used to demonstrate the overall process. Text provides explanatory descriptions.

The Panel Performs a Planning Function at this Time

74. The Jackpine Mine Expansion requires federal and provincial approvals in order to proceed. These approvals are issued by various entities of the federal and provincial Crowns -- including the ERCB. Without these approvals, the project will not be able to proceed as proposed. A planning process informs these approval decisions. This Panel is one element in that planning process.

75. The Supreme Court of Canada has twice described federal environmental assessment as a planning process intended to inform later decision-making.118 The original statement is taken from an Alberta case, Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3119 and the description is unchanged by the coming into force of CEAA, 2012:

Environmental impact assessment is, in its simplest form, a planning tool that is now generally regarded as an integral component of sound decision-making. Its fundamental purpose is summarized by R. Cotton and D. P. Emond in "Environmental Impact Assessment", in J. Swaigen, ed., Environmental Rights in Canada (1981), 245, at p. 247:

The basic concepts behind environmental assessment are simply stated: (1) early identification and evaluation of all potential environmental consequences of a proposed undertaking; (2) decision making that both guarantees the adequacy of this process and reconciles, to the greatest extent possible, the proponent's development desires with environmental protection and preservation.

As a planning tool it has both an information-gathering and a decision-making component which provide the decision maker with an objective basis for granting or denying approval for a proposed development; see M. I. Jeffery, Environmental Approvals in Canada (1989), at p. 1.2, {SS} 1.4; D. P. Emond, Environmental Assessment Law in Canada (1978), at p. 5. In short, environmental impact assessment is simply descriptive of a process of decision-making.

76. In these submissions the nature of the Panel process is described as planning. Canada recognizes that the Panel process encompasses both regulatory review by the ERCB, and also environmental assessment under CEAA, 2012. But Canada also recognizes that

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provincial environmental assessment, ERCB regulatory review, and federal environmental assessment are all, in this Panel, integrated together. This is one planning process which will inform many statutory approval obligations.

77. Alberta has multiple approval processes, and these are „integrated‟ in order to present a developer with minimized duplication of process. In general terms, Environmental Impact Assessment [EIA] under EPEA supports decision making under a variety of provincial statutes.

78. The planning purposes of EPEA review are described in section 6 of the Approvals and Registrations Procedure Regulation, Alta Reg 113/1993.

6(1) The review of an application shall be conducted to determine whether the impact on the environment of the activity, the change to the activity or the amendment, addition or deletion of a term or condition of an approval is in accordance with the Act and the regulations made under the Act. (2) A review may address the following matters, without limitation: (a) proposed methods of minimizing the generation, use and release of substances and any available alternative technologies; (b) design plans and specifications for the activity, the change to the activity or the amendment, addition or deletion of a term or condition of an approval; (c) site suitability, including soils, air and water quality, groundwater conditions, site drainage, water supply quantity and wastewater disposal alternatives; (d) the proposed monitoring programs to determine emissions and their effect on the environment; (e) proposed methods of management of the storage, treatment and disposal of substances; (f) the adequacy of the quality and quantity of the potable water used in or produced by the activity to which the application relates; (g) proposed plans to complete the conservation and reclamation required in connection with the activity;

(h) the past performance of the applicant in ensuring environmental protection in respect of the activity.

79. The Alberta Government maintains a website120 which describes how EPEA and accompanying regulations121 “set out in detail which activities require approvals and the

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process for obtaining them.” It also states that EPEA “supports a streamlined „single window‟ approach to approvals.”

80. In correspondence dated October 3, 2011, Alberta describes its approach to the project development process after the Joint Review Panel report:

“In effort to keep Environment Canada informed, I would like to share with you our plans to assist the recently announced Joint Review Panel for the Shell Jackpine Mine Expansion application and move this project forward through our regulatory approval process once a public interest decision is made.

In recent years, the Government of Alberta opted, as an overall policy, not to participate or to provide a written submission in the Joint Review Panel hearings. Based on the experience and advice from legal counsel, the potential risks and workload demands for the Government of Alberta in preparing submissions and appearing at a Joint Review Panel hearing outweigh the potential benefits to the participating departments. Nonetheless, for the upcoming review, should the Joint Review Panel have any questions regarding environmental issues that are within the jurisdiction of Alberta, Alberta Environment and Alberta Sustainable Resource Development are prepared to provide a written response to the Joint Review Panel in a timely manner.

The Government of Alberta completed its review of Shell's environmental impact assessment report on October 14, 2010. Completing Alberta's environmental assessment process does not equate to approval or acceptance of the proposed project, it simply means the information requirements of the terms of reference which were issued by Alberta Environment have been met and that there is enough information to understand the proposed project at a conceptual level.

The Government of Alberta, under Alberta Environment's Environmental Protection and Enhancement Act regulatory review process, undertakes a comprehensive review of an application to determine whether there is sufficient information provided to understand the project and to develop a review process, up until the Environmental Protection and Enhancement approval is issued, approval to construct, operate, and reclaim a project is not allowed. At any point in the regulatory review process, up until the Environmental Protection and Enhancement approval is issued, Alberta Environment can ask the proponent clarification questions if necessary. Under the Water Act, a similar process is also followed. Once the public hearing is complete and a decision report is issued by the Joint Review Panel, Alberta Environment considered the written decision of the Joint Review Panel in the development of the Environmental Protection and Enhancement Act and Water Act approvals and licences for the project. As well, Alberta Environment may consider any evidence that was before the Joint Review Panel in relation to the written decision. (underlining added)

In drafting the Environmental Protection and Enhancement approval conditions, Alberta Environment will include input from Alberta Sustainable Resource Development and may include input from other relevant regulators, such as Environment Canada, as

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appropriate. As a part of the application to Alberta Environment, Shell also applied for a renewal to their existing 10 year approval for the Jackpine Mine which expires June 22, 2014. Any Environmental Protection and Enhancement approval that may be issued by Alberta Environment for the expansion project may be integrated with the next 10 year Environmental Protection and Enhancement approval renewal for the entire project. Any disposition issued by Alberta Sustainable Resource Development such as the Mineral Surface Lease, is typically issued after the approval is issued by Alberta Environment.

It is my pleasure to share with you our plans to move forward this project and our commitment to assist the Joint Review Panel, if required.”122

81. EIA is prepared in order to inform provincial approvals, operating permits and licences, under a whole variety of provincial legislation including the enabling legislation of the Alberta ERCB.123 An Alberta government description of its environmental assessment process confirms this reality in this way: “once a project has been through an environmental assessment, it does not mean that it has been approved or that it can commence operation. It has simply met the information requirements necessary to move onto the next phase.”124 (emphasis in original)

82. This point exactly is recognized by the Canadian Institute for Resources Law:

“AENV considers the EIA report not only in deciding whether to issue an EPEA or WA approval, but also in setting approval terms and conditions, including emission levels, monitoring requirements, research needs, siting and operating criteria, as well as decommissioning and reclamation requirements. The EIA report is also used by the EUB in its determination of whether the project is in the public interest and in setting its own approval terms and conditions.”125

83. In this model of planning, both the EIA and the ERCB decision are material steps in informing later decision-making. The Alberta Government describes it this way:

Decision / Appeal

The Director decides whether an approval will be issued and under what conditions, weighing the results of any related public hearings of the ERCB, or statements of concern.126 (underlining for emphasis to show how the ERCB decision may inform subsequent decisions).

84. Canada also has a statutory environmental assessment process, which operates jointly with the provincial process in order to present minimized duplication of process. The

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advisory nature of the JRP process is evident, also, in federal legislation. The obligation of the Panel is defined in s. 43 of CEAA, 2012:

43. (1) A review panel must, in accordance with its terms of reference, (a) conduct an environmental assessment of the designated project; (b) ensure that the information that it uses when conducting the environmental assessment is made available to the public; (c) hold hearings in a manner that offers any interested party an opportunity to participate in the environmental assessment; (d) prepare a report with respect to the environmental assessment that sets out (i) the review panel‟s rationale, conclusions and recommendations, including any mitigation measures and follow-up program, and (ii) a summary of any comments received from the public, including interested parties; (e) submit the report with respect to the environmental assessment to the Minister; and (f) on the Minister‟s request, clarify any of the conclusions and recommendations set out in its report with respect to the environmental assessment.”127

Under the federal legislative regime as it applies to the Jackpine Expansion Project, the JRP report contains findings and recommendations. Federal approval decisions follow after the Panel Report and are informed by it.

85. Details of Alberta legislation have changed since the existing Jackpine Mine was approved. Details of Canada‟s legislation have also evolved since the Jackpine Mine Expansion was first announced. For example, Federal environmental assessment process under the CEA Act (1992) has been replaced by federal environmental assessment process under the CEAA, 2012. In addition, the provisions of the Fisheries Act were amended and the provisions of the Navigable Waters Protection Act were amended. The details of these changes are discussed further below. The changes in detail do not change the fundamental reality, however, that JRP review is a planning process intended to inform decision making by the ERCB, and by both the Federal and Provincial Governments.

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86. For present purposes, it is essential to recognize that, under legislation as it existed previously and as it presently exists, the JRP performs an important planning function intended to inform future decision making by the Crown. The overall process is depicted here as follows:

87. This legislative context is distinct from the legislative context which applied to the British Columbia Utilities Commission in the Rio Tinto case, which is depicted as follows for comparative purposes:

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In Rio Tinto the Tribunal gave final approval to Crown (BC Hydro) conduct. The Tribunal Report was not intended to inform subsequent Crown approval decisions. There were no subsequent opportunities for the Crown itself to assess the adequacy of its Aboriginal consultation before receiving final approval of the electricity purchase agreement from the Commission.

88. By contrast, in the case before this Panel, Canada and Alberta integrate their processes to reduce duplication, the resulting „integrated‟ planning function can be described with reference to multiple sources of authority. For example:

the „public interest test‟ defined in section 3 of the Oil Sands Conservation Act:

“3. Where by any other enactment the Board is charged with the conduct of a hearing, inquiry or other investigation in respect of a proposed energy resource project or carbon capture and storage project, it shall, in addition to any other matters it may or must consider in conducting the hearing, inquiry or investigation, give consideration to whether the project is in the public interest, having regard to the social and economic effects of the project and the effects of the project on the environment.”

the requirements of section 43 of CEAA, 2012:

“43. (1) A review panel must, in accordance with its terms of reference, (a) conduct an environmental assessment of the designated project; (b) ensure that the information that it uses when conducting the environmental assessment is made available to the public; (c) hold hearings in a manner that offers any interested party an opportunity to participate in the environmental assessment; (d) prepare a report with respect to the environmental assessment that sets out (i) the review panel’s rationale, conclusions and recommendations, including any mitigation measures and follow-up program, and (ii) a summary of any comments received from the public, including interested parties; (e) submit the report with respect to the environmental assessment to the Minister; and (f) on the Minister’s request, clarify any of the conclusions and recommendations set out in its report with respect to the environmental assessment.”

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the requirements of sections 6.1 to 6.3 of the Joint Review Panel Agreement:

“6.1 The Joint Review Panel may receive information from Aboriginal groups related to the nature and scope of asserted or established Aboriginal and treaty rights in the area of the project, as well as information on the potential adverse environmental effects that the project may have on asserted or established Aboriginal and treaty rights. The Joint Review Panel may also receive information provided in this regard by other participants, federal authorities or government, and provincial departments or government.

6.2 The Joint Review Panel shall reference in its report:

a. the information provided by participants regarding the manner in which the project may adversely affect asserted or established Aboriginal and treaty rights; and

b. the information provided by participants regarding the strength of claim in respect of Aboriginal and treaty rights asserted by a participant, including information about the location, extent, bases and exercise of those asserted Aboriginal and treaty rights in the area of the project.

For the purposes of its report, the Joint Review Panel shall document claims of Aboriginal and treaty rights as presented by participants and consider the effects of the project on the Aboriginal and treaty rights so presented. The Joint Review Panel may use this information to make recommendations that relate to the manner in which the project may adversely affect the Aboriginal and treaty rights asserted by participants.”

89. On September 30, 2011, the Jackpine Mine Expansion JRP clarified the Panel‟s mandate respecting aboriginal rights and interests and Aboriginal consultation obligations:

“The Panel's mandate in relation to aboriginal rights and interests is set out in Article 6 of the Joint Review Panel agreement. The Panel has a clear mandate to receive information about perceived impacts on aboriginal rights, including treaty rights, and the effects the project may have on those rights. The Panel is also required to document in its final report all such information provided by participants. This clearly indicates that the Panel has a mandate to hear and report on the concerns described by the ACFN and MCFN in your letter, to the extent those relate to the project and the environmental assessment to be undertaken by the panel. The Panel assumes that you will be providing that information during the course of the proceeding….

… The Panel is not the Crown and does not have a consultation obligation arising out of the duty of the Crown, as described in the Haida and Mikisew decisions. The common law has established that the regulatory process is well-suited to

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address issues that are site or project-specific, but it is not intended or designed to address larger issues of the overall impact of development, on a regional basis, on rights exercised throughout the region (Brokenhead Ojibway Nation v. Canada, 2009 FC 484). Such regional concerns may be raised by parties in the course of the proceeding and the information so provided reported by the Panel, but the Panel cannot give any advance assurance that it will make decisions based on what it hears about those concerns. The Panel's hearing process may, however, assist the Crown to meet its consultation obligations to First Nations. Any questions or concerns you have regarding this kind of consultation should be directed to the Crown in Right of Alberta, or the Crown in Right of Canada.”128

90. The case cited, Brokenhead Ojibway First Nation v. Canada (Attorney General), 2009 FC 484 (CanLII),129 involved the National Energy Board. The NEB is broadly comparable to the ERCB. Both are quasi-judicial Tribunals with specialized expertise and functions in relation to oil and gas development. Federal Court recognizes the inherent capacity of NEB regulatory review process to itself address Aboriginal concerns:

[26] The NEB process appears well-suited to address mitigation, avoidance and environmental issues that are site or project specific. The record before me establishes that the specific project concerns of the Aboriginal groups who were consulted by the corporate Respondents or who made representations to the NEB (including, to some extent, the Treaty One First Nations) were well-received and largely resolved. …

[42] I am satisfied that the process of consultation and accommodation employed by the NEB was sufficient to address the specific concerns of Aboriginal communities potentially affected by the Pipeline Projects including the Treaty One First Nations. … To the extent that regulatory procedures are readily accessible to Aboriginal communities to address their concerns about development projects like these, there is a responsibility to use them.

91. This Panel has the benefit of a large body of evidence relating to Aboriginal concerns, already gathered in relation to the initial Jackpine Mine and the Jackpine Mine Expansion. Further evidence may be put before the Panel by the Aboriginal parties. The Panel‟s Terms of Reference specifically authorize this Panel to receive and consider this evidence in order to make recommendations to the Crown that relate to the manner in which the project may adversely affect the Aboriginal and treaty rights asserted by participants.

92. The integrated process in this case harnesses the capacity of Shell and this Panel in the cause of advancing reconciliation. Proof that this can work to advance the cause of reconciliation is seen, for example, in the withdrawal of Aboriginal objections to the

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initial Jackpine Mine; and, also, in the fact that the Mikisew Cree First Nation have announced that they have reconciled their interests with this specific Project (“MCFN does not object to the regulatory approval of the Projects”) but still wish to present evidence to this Panel on other issues.130

Conclusion

93. The JRP may use evidence provided by Aboriginal groups, Shell, and others, to make recommendations that relate to the manner in which the project may adversely affect the Aboriginal and treaty rights asserted by participants.

94. The Crown has a capacity to respond to whatever recommendations the Panel may see fit to make, and awaits the Panel Report. How the Crown may exercise its capacity is dependent upon the content of the Panel Report, a future event.

95. Since the Panel process is still underway, it is not the appropriate time, or venue, for the assessment of the adequacy of Aboriginal consultation by either Alberta or Canada.

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PART IV: ORDER SOUGHT

96. That the Panel exercise its discretion so as to decline to assess the adequacy of Crown consultation at this time, and that the Panel therefore find that it is not necessary to determine whether or not it has the jurisdiction to assess the adequacy of Aboriginal consultation by Alberta and Canada.

ALL OF WHICH IS RESPECTFULLY SUBMITTED

DATED at Edmonton, Alberta, this 15th day of October, 2012.

Myles J. Kirvan Deputy Attorney General of Canada

Per: Kirk Lambrecht / Janell Koch Counsel for the Attorney General of Canada Department of Justice Canada Edmonton Regional Office 300, 10423 – 101 Street Edmonton, Alberta T5H 0E7

Telephone: (780) 495-2968 Facsimile: (780) 495-8491 File: 2-143280

APPENDIX I: CONCORDANCE OF ABORIGINAL CONCERNS WITH REFERENCE TO THE PANEL REPORT ON THE INITIAL JACKPINE MINE

Section Member Issue/Concern Raised Response/comments Panel Comments

Section 3: Mikisew . Had concerns regarding: (MCFN) Stated at the opening of the hearing None Agreements Cree First o Climate change that it had reached an Agreement with Shell (3.2) Nation o Long-term flows in the and that it no longer objected to the Shell Athabasca River (MCFN) applications o CEMA‟s progress towards defining IFN MCFN‟s concerns about social, economic, cultural and health, and other impacts were addressed in Shell‟s Environmental Action Plan. Section 3: Athabasca . Main concern was water and Shell (ACFN) Stated that it not object to the None Agreements Chipewyan addressed this concern project, based on its understanding that Shell (3.3) First Nation would mitigate the adverse effects of the (ACFN) project as outlined in the terms of the mitigation agreement between ACFN and Shell

Section 3: Fort McKay . None specifically mentioned Fort McKay stated that it did not object to None Agreements First Nation the project, based on its understanding that (3.4) and Metis Shell would manage and mitigate the Local 122 adverse effects of the project as outlined in (Fort the terms and conditions of Fort McKay‟s McKay) agreement with Shell

Section 9: MCFN . MCFN recommended that the . AENV stated that it intended to include . The Panel has reviewed Shell‟s water balance and Water Director under the Water Act conditions in the Water Act license water requirements for the project; the Panel finds Management ensure the following: issued allowing for implementation of that Shell‟s water requirement during the initial o Any future licenses for start-up phase is consistent with the requested (9.3) management options based on IFN in withdrawal from the the Athabasca River allocation from the Athabasca River... Athabasca River for oil sands . The Panel accepts that water is needed for the . AENV acknowledged that all of the development include a existing oil sands Water Act licenses project and the most suitable source of water is 36

provision for a cooperative had terms and conditions that would the Athabasca River management strategy to allow for the cessation or reduction of . The Panel … recommends that in AENV‟s review restrict water withdrawals water withdrawal should AENV of Shell‟s Water Act application it consider water during low-flow periods and implement a management system for allocation based on needs of the different project to accommodate a regulated IFN phases IFN number . AENV said that it accepted on-site . The Panel supports Shell‟s plan to develop 30-day o The transfer or sale of water water storage as one of the strategies to storage on site provided that the design can be withdrawal allocations among reduce water withdrawals during low- incorporated into the mine plan without adverse oil sands developers to be flow conditions impacts to resource recovery, safety or the prohibited . Alberta stated that the overall annual environment o No exemptions to withdrawal volume of water available from the . The Panel agrees that there is a need for CEMA restrictions during low-flow Athabasca River was more than and AENV to implement a management system periods be granted sufficient to support Shell‟s requested prior to water withdrawals by Shell for the o Licenses be tied to a allocation. AENV acknowledged that project. The Panel expects CEMA to make its proponent‟s actual needs and during winter low-flow periods there recommendation for an IFN management system be subject to change was potential for cumulative impacts to to AENV by the end of 2005 depending upon IFN of the the Athabasca River. To minimize . The Panel has confidence that in the exercise of Athabasca River potential impacts, the timing of low- its regulatory authority, AENV will address the o Consideration be given to flow water withdrawals could be needs of regional stakeholders, existing licence attaching a cost of water to managed and withdrawals could be holders, and applicants seeking new water industrial users that reflects scaled back or managed within IFN allocations the value of the resource objectives without reducing . The Panel strongly encourages AENV to work Section 9: Wood . WBFN expressed concern about allocations. CEMA was engaged in cooperatively with regional stakeholders an water Water Buffalo First environmental effects on the developing in IFN management system license holders to evaluate a process and establish Management Nation Peace/Athabasca Delta, effects on scheduled for completion by the end of a water management plan for the lower Athabasca 2005. AENV committed to take River (9.4) (WBFN) wildlife, and the need to determine factors contributing to necessary action should CEMA not be . The Panel recommends that AENV review the low water levels in the delta. able to advance its IFN communications programs in place to ensure that WBFN expressed a need for an recommendation by the end of 2005 regional water quality and water use information assessment to determine the . AENV stated that there was a provision is accessible and understandable to interested reasons for the deteriorating within the Water Act for water parties condition of delta before more management planning similar to that . The Panel concludes that significant adverse water licenses were issued suggested for the Athabasca River and environmental effects from the proposed water that this planning function was not allocation are unlikely to occur, provided that the exclusive to the Alberta Government. proposed mitigation measures and the Referred to the Alberta draft water recommendations of the Panel are implemented strategy whereby local or regional groups could participate in basin planning

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Section 10: WBFN . Identified several concerns related . EC recommended that Shell complete a . The Panel recommends that AENV include a Surface water to water quality long-term surface water and sediment condition in the EPEA approval requiring Shell to quality (10.4) . In relation to increased water quality monitoring plan that develop and implement monitoring programs for withdrawals of the oil sands characterizes ongoing conditions in the sediment and water quality for waters that may be operations, WBFN stated that its development area, enables comparative affected by the project members had observed saline and analysis between before/after and . The Panel expects Shell to design the program sulphur springs flowing into the control/impact conditions, tests water with input from AENV, EC, DFO, and other Athabasca River; concerned about and sediment quality and predictions, stakeholders to address such issues as geographic water quality during low-flow and evaluates effectiveness of and temporal scope, synergistic effects, scientific conditions mitigation measures precision, and repeatability . WBFN advised that more . EC recommended to the Panel that . The Panel accepts AENV‟s position that the regional water quality data was more information on potential effects EPEA license conditions for the project for the needed prior to new water on the Athabasca River be acquired monitoring of surface and groundwater quality licenses being granted through regional monitoring and and quantity will address potential effects of research saline and sulphur springs on the Athabasca River . DFO identified disturbance or removal . The Panel finds that the project has potential to of tributary stream channels of the increase the PAI, both locally and to a lesser Athabasca River and its tributaries as a extent regionally, with possible effects on critical cumulative effect upon water quality load exceedances of water bodies and fish habitat . The Panel expects that Shell will support RAMP . DFO recommended that in and WBEA to ensure monitoring and combination with existing regional management of acid deposition effects on initiatives, new efforts were needed to ecological receptors in the region detect cumulative effects on the . The Panel concludes that the project is not likely regional aquatic environment to cause significant adverse environmental effects . To address concerns about cumulative on surface water quality, provided that the effects on the water quality of the mitigation measures and the recommendations of Athabasca River and its tributaries, the Panel are implement DFO recommended that Shell participate in a site-specific long-term water quality monitoring program to detect changes in the Athabasca River. DFO supported Shell‟s continued participation in CEMA, RAMP and CONRAD regional water quality monitoring and research . AENV stated that sulphur springs contributed relatively small volumes of water to the Athabasca River, so the water quality of the river was not likely

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to be affected even under low-flow conditions . AENV expected Shell to continue its support of CEMA and to maintain work schedules for the development of regional water quality objectives Section 11: . MCFN Agreement with Shell . DFO recommended that IFN for the . The Panel does not believe that decision Surface required Shell to provide 30 days low-flow ice-cover period be regarding the project should be deferred Hydrology MCFN of on-site water storage to reduce established for the lower Athabasca . The Panel believes that regulatory requirements, withdrawals from the Athabasca adaptive management processes, monitoring and (11.2) River prior to Shell requiring water River during low-flow periods mitigation measures, and implementation of the . MCFN expressed concerns about withdrawals for the project Panel‟s recommendations provide sufficient cumulative reduction of water . AENV disagreed with interveners that protection for the environment quality and quantity in the the Athabasca River flow had . The Panel accepts that within current and future Athabasca River experienced a historical decline. AENV Water Act licences, AENV has authority to Section 11: ACFN . In ACFN Agreement with Shell, presented a statistical analysis that did amend licence terms and conditions Surface ACFN asked Shell to address the not show a statistically significant trend . The Panel recommends that DFO and AENV issue of low flows in the consider IFN objectives and management Hydrology of declining flows. The water Athabasca River and to maintain approaches in its approvals for the project (11.3) the river‟s health, integrity and allocations that Shell was applying for, . The Panel recommends that ASRD require Shell sustainability including all existing, approved and to consider the widths and types of buffer zones . ACFN sought assurances from planned maximum annual water for benefits to watershed management when Shell that both Kearl Lake and withdrawals were 6.2 percent of the evaluating wildlife corridors McLelland Lake would be river‟s total annual flow . The Panel is aware of past EUB decisions on oil monitored and that no impacts sands development that expressed concerns about would occur from the project the proliferation of lakes containing water-capped . ACFN was also concerned about tailings in reclaimed landscapes; the Panel has the falling water levels of directed Shell, in section 8, to continue to develop Richardson Lake due to its alternative technologies for tailings management importance to fish spawning . The Panel recommends that AENV require Shell Section 11: Fort McKay . Fort McKay recommended that to conduct or support monitoring of water levels Surface the Panel establish timelines for in Kearl Lake to validate the predictions made in Hydrology CEMA the EIA . For protection of the Athabasca . The Panel concludes that significant adverse (11.4) River, Fort McKay asked Shell to environmental effects from the project on surface agree to an AENV license clause water hydrology are unlikely to occur, provided limiting withdrawals for flows that the mitigation measures and the below 115 m3/s recommendations of the Panel are implemented . Fort McKay also sought assurance from Shell that the project would

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not impact Kearl Lake . Fort McKay asked Shell to facilitate accelerated work by CEMA and adopt measures to protect Muskeg River basin before start-up of the project Section 12: MCFN . MCFN emphasized its reliance on . EC noted that the Fisheries Act . The Panel is satisfied that no net loss can be Aquatic fish and game and noted that prohibited the deposit of deleterious achieved effectively, but believes that a strong Resources some of its members operated as substances into fish-bearing waters. It monitoring plan is critical to ensure that fish and commercial fishers on Lake expressed concern regarding the fish habitat effects are understood (12.2) Athabasca and at the mouth of the potential of oil sands development to . The Panel recommends that DFO, in consultation Athabasca River cause the tainting of fish tissue, which with ASRD, AENV, EC and regional was prohibited under the Act stakeholders, require Shell to develop and . EC recommended that Shell ensure that implement a comprehensive monitoring program the fish tainting program address the relating to fish and benthic macroinvertebrates knowledge gaps it had identified and . The Panel recommends that DFO require a report make suggestions for future research from Shell on its monitoring results relating to the and monitoring compensation lake and share those findings with . With regard to fish tainting, DFO other stakeholders in the region (DFO should also recommended that Shell continue to consider requiring Shell to monitor for fish participate in regional research and abundance, community structure, and operational water quality monitoring initiatives that results of the compensation lake with regard to address the effects of water quality on hydrological regimes and its responses to high- aquatic resources and low-water events) . DFO noted its concerns regarding the . The Panel notes that the issue of naphthenic acids cumulative environmental effects on and their potential impacts on water quality and fish and fish habitat as a result of the fish tainting has been known for 20 years. The successive elimination of watercourses Panel recommends that AENV and ASRD, in and cumulative water withdrawals. consultation with DFO and EC, require Shell to DFO stated the project would not result conduct follow-up studies on potential impacts of in significant adverse environmental fish tainting compounds. The Panel also effects, provided that the proposed encourages DFO and EC to increase their mitigation and compensation measures participation in the CONRAD fish tainting were undertaken program so that the information gaps and research . DFO believed that Shell had limited needs identified can be addressed opportunity to replace habitat loss with . The Panel concludes that with the implementation similar habitat in the same area of mitigation measures and the Panel‟s . DFO identified disturbance or removal recommendations, the project is unlikely to result of tributary stream channels of the in significant adverse environmental effects on Athabasca River and its tributaries as aquatic resources

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having a cumulative effect on water quality and fish habitat. DFO recommended that AENV and EUB examine all incremental change predictions at a regional scale. DFO stated that in combination with existing regional initiatives, new efforts were needed to detect cumulative effects on the regional aquatic environment . DFO stated that it did not accepts EPLs as compensation for fish habitat . Alberta believed that effects on fish populations and fish habitat would be negligible if Shell could successfully compensate for loss of fish habitat through the NNLP . ASRD noted that the responsibility for the NNLP was DFO‟s and stated that it would continue to provide technical advice on the NNLP . With respect to baseline information, Alberta believed that adequate information pertaining to fish had been collected but noted that additional information relating to benthic invertebrates would be beneficial Section 13: MCFN . General groundwater quality . AENV stated that it might include a . The Panel believes that some mitigation options Groundwater concerns; MCFN stated that in its condition requiring Shell to submit a may be forsaken once construction of the disposal (13.1.2) agreement with Shell it will be detailed mitigation plan to limit the area is complete. Therefore, the Panel able to review and have input on lateral extent and water quality effects recommends that AENV consider requesting Shell‟s proposed groundwater- of seepage prior to the first use of the Shell to provide, prior to construction, additional monitoring program and its tailings disposal area mitigation plans to limit external tailings disposal implementation, and review the . AENV stated that it might also include area seepage results of the monitoring conditions in any EPEA approval . The Panel support AENV‟s plans to incorporate programs to validate the requiring Shell to collect additional monitoring and mitigation requirements for effectiveness of mitigation data on the aquifer and to confirm tailings seepage effects in any EPEA approval measures and the correlation Shell‟s predictions on the effects of . The Panel recommends that AENV‟s Dam Safety between monitoring results and tailings disposal area seepage Branch require Shell to include updated seepage EIA predictions modeling results, Quaternary deposits mapping,

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Section 13: ACFN . General groundwater quality monitoring plans, and mitigation measures in the Groundwater concerns; in ACFN‟s agreement tailings disposal area detail design report (13.1.3) with Shell, Shell is required to . The Panel directs that Shell provide a report, for involve ACFN in the design of EUB approval, detailing its mine plans near the monitoring programs, determine PCA five years prior to mining in this area to threshold values that would allow for the consideration of resource recovery trigger adaptive management issues and environmental impacts. The report actions, and provide ACFN with shall include the proposed location of the pit monitoring results and a limits and their proximity to the PCA, as well as a comparison with EIA predictions description of any mitigation that would be Section 13: Fort McKay . General groundwater quality completed to minimize the impact of mining near Groundwater concerns; Fort McKay‟s the PCA (13.1.4) agreement with Shell provided for . The Panel notes Shell‟s commitments to involve the involvement of Fort McKay in stakeholders in the design and implementation of the design of the groundwater- its groundwater monitoring program, as well as monitoring network and in the Shell‟s commitments to review the results of the adaptive management process monitoring program with these stakeholders in including the development of order to assess the validity of its EIA predictions triggers that would result in . The Panel is concerned that the Syncrude and mitigation actions ExxonMobil developments could also impact the PCA. Therefore, the Panel recommends that AENV incorporate conditions in its approval requiring Shell, in conjunction with other developers, to define and carry out a regional groundwater study of the PCA in order to evaluate the regional nature of this groundwater resource . The Panel concludes that with the implementation of mitigation measures and the Panel‟s recommendations, the project is unlikely to result in significant adverse environmental effects on the Quaternary groundwater regime Section 15: MCFN . MCFN requested that the Panel AENV stated that climate change and its . The Panel notes that the impact of climate change Climate recommend to Canada and AENV consideration in EIAs was an emerging on the project was not part of the EIA terms of Change (15.2) that all future EIAs prepared in issue. AENV noted that the EIA terms of reference. The Panel agrees that Shell has compliance with the requirements considered climate change effects in a reasonable reference did not include climate change of CEAA and EPEA specifically manner in its EIA, and expects all subsequent consider the effects that climate EIAs to follow guidelines on climate change once change may have on the proposed the guidelines are finalized by the federal project and cumulatively on the government

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region . The Panel believes that the impact of climate . MCFN also recommended a water change on the project can be adaptively managed demand and supply study of the and therefore concludes that significant adverse Athabasca River drainage basin effects are unlikely that included climate change scenarios . MCFN believed that Shell‟s EIA did not address climate change appropriately, but it stated that its concerns had been alleviated by Shell‟s commitment to do all it could to address climate change in the near future and through Shell‟s follow-up program (to verify the accuracy of its predictions and the effectiveness of the proposed mitigation strategies) Section 16: MCFN . General wildlife concerns; the . EC was concerned that oil sands . The Panel recommends that ASRD review with Terrestrial agreement between MCFN and development in combination with other Shell opportunities to further mitigate losses of Resources; Shell included: anthropogenic changes, such as forest old growth forest attributed to the project o Ongoing consultation with harvesting, pipelines, and other . The Panel agrees with ASRD and AENV that 16.1 Wildlife MCFN about the infrastructure, would cause change to further research will be needed to evaluate (16.1.3) environmental effects of the and loss of wildlife habitat. wildlife corridors for effective movement of project, including impacts on . EC stated there was a need to assess the wildlife species. The Panel recommends that wildlife effects of each project on wildlife in a ASRD and AENV require Shell to participate in a o Shell to undertake regional context and to assess those technical review of wildlife corridors that includes environmental monitoring to effects cumulatively analysis of corridor width and effectiveness in validate EIA predictions of the . ASRD and AENV agreed that Shell‟s facilitating wildlife movement and meets the project and to review wildlife mitigations were reasonable. regulatory needs of both agencies. The Panel also monitoring results and the Nevertheless, due to the increasing recommends that ASRD and AENV review with effectiveness of the mitigation level of disturbance and the potential Shell an action plan to maintain other islands or measures with them annually for long-term cumulative impacts on strips of undisturbed native vegetation on the o Shell agreed to seek input habitat connectivity, ASRD and AENV Shell lease in association with wildlife corridors from MCFN in the design of believed that natural dispersal patterns project monitoring programs – and seasonal range distributions of including those dealing with some wildlife species might be affected wildlife populations and by the project movement corridors

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Section 16: ACFN . Had concerns related to historic . ASRD and AENV requested the EUB to Terrestrial densities and movement of moose require Shell to undertake and lead a Resources; in the Muskeg River basin (Shell research and monitoring program to and ACFN reached an agreement 16.1 Wildlife examine wildlife responses and regarding this) effective setback distances for (16.1.4) movement corridors in the oil sands area and to examine other potential Section 16: Fort McKay . Had concerns relating to wildlife innovative mitigation and reclamation species for subsistence hunting, Terrestrial measures Resources; trapper issues and access management (issues were 16.1 Wildlife addressed by the agreement (16.1.5) between Shell and Fort McKay) Section 16: MCFN . General concerns; agreement with . AENV stated that long-term monitoring . The Panel understands that effects of the project on Terrestrial Shell includes ongoing would be necessary to measure the wetlands and rare plants are for the most part Resources; consultation with MCFN on effects of sulphur and nitrogen unavoidable, and that some wetlands that will be vegetation and land use deposition on the environment lost are likely irreversible 16.2 . AENV stated that it might include . More research on the technical feasibility of Vegetation, approval conditions requiring Shell to engineered wetlands is encouraged – the Panel Soils, support research to implement CEMA recommends that ASRD and AENV identify this Wetlands, and recommendations for an acidification area of wetlands research as a priority for CEMA to Forest management framework address and to consider requiring Shell to support a Resources program to facilitate wetlands restoration (16.2.3) . The Panel recommends that EC provide scientific expertise to CEMA working groups in the selection Section 16: ACFN . Had concerns related to of appropriate indicators of terrestrial and aquatic transplanting of plants important ecosystems and in establishing effects-based Terrestrial monitoring systems for regional acid deposition Resources; to ACFN; addressed in agreement between Shell and ACFN . The Panel concludes that with the implementation 16.2 of mitigation measures and the recommendations of Vegetation, the Panel, significant adverse environmental effects Soils, on vegetation, soils, forests and wetlands are Wetlands, and unlikely Forest Resources (16.2.4)

Section 16: Fort McKay . Had general concerns regarding Terrestrial land disturbance, healing of the

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Resources; land, medicinal plants and access 16.2 management; addressed in an Vegetation, agreement between Shell and Fort McKay Soils, Wetlands, and Forest Resources (16.2.5)

Section 17: Fort McKay . Had concerns of environmental . EC stated that there were potential risks . The Panel recognizes that the potential for long- Muskeg River uncertainties of the impacts on of irreversible effects on the Muskeg term effects to surface and groundwater flows Integrity undeveloped parts of the Muskeg River watershed from multiple oil entering the Muskeg River from Shell‟s mine pit River basin sands projects during operations and may not be fully mitigated by a 100m setback (17.2) . Fort McKay requested that Shell reclamation. It recommended that distance. The Panel recommends that AENV conduct surficial groundwater Shell‟s water and sediment quality consider long-term environmental effects on the monitoring and link it to rich fen monitoring and dewatering monitoring Muskeg River in the design of Shell‟s water and bog water level monitoring in and mitigation programs consider monitoring programs order to develop benchmarks of potential synergistic effects upon the acceptable levels of Muskeg River and Jackpine Creek environmental change to develop from adjacent projects best management practices to . AENV acknowledged Shell‟s minimize impacts in undeveloped information that operational parts of the Muskeg River basin management of water and the final closure landscape from multiple oil sands projects in the Muskeg River drainage basin could have impacts on the functioning and integrity of the basin . AENV stated that it would regulate Shell and other operators by means of EPEA and Water Act approvals and by requiring their participation in CEMA groups, such as the RWG and MRWI subgroup Section 21: MCFN . MCFN noted that resources . EC acknowledged that regional . The Panel has serious concerns about delays in the Regional available for various tasks were environmental thresholds and issuance of recommendations and the ability of Environmental not consistent objectives were not yet in place. It CEMA to meet the proposed timelines due to issues . MCFN was concerned about the recommended the development and with funding, the wide scope of environmental Initiatives lack of products from CEMA implementation of interim issues CEMA is expected to manage, CEMA‟s

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(21.3) environmental guidelines by CEMA diverse membership (industry, First Nations, local working groups aboriginal groups, regulatory agencies, Section 21: WBFN . Concerned that CEMA was . AENV listed a number of CEMA nongovernmental organizations, other stakeholders), Regional overloaded in regards to accomplishments and increased volume of workload Environmental workload; believed CEMA should . AENV also stated that it might include . The Panel supports EC, DFO, AENV, and ASRD in be provided with additional funds conditions in the EPEA or Water Act reviewing and optimizing their financial and human Initiatives to facilitate its work approvals that will require Shell to resourcing of CEMA to produce meaningful results (21.4) participate in and support CEMA in an earlier timeframe . The Panel recommends that AENV and ASRD Section 21: ACFN . ACFN was concerned about the consider developing management plans or Regional timing with regards to the IFN; objectives respecting other environmental issues if Environmental would like an objective to be set CEMA timelines are not met for IFN as soon as practicable Initiatives . When CEMA or other regional initiatives have (21.5) produced substantive results or AENV has acted within its mandate and set management objectives, Section 21: Fort McKay . Fort McKay believed that the pace the EUB will consider the need to review Shell‟s and other oil sands approvals Regional of granting approvals by Environmental regulators had outstripped the ability of CEMA to develop and Initiatives recommend appropriate regional (21.6) thresholds for environmental protection Section 22.2: WBFN . From oil sands development, had Public concerns regarding Infrastructure/ o Increased social problems due to alcohol and drug use Services o Rising cost of living (22.2.3) o High cost of housing

Section 22.2: MCFN . MCFN had general concerns that None None Public are being addressed by their Infrastructure/ agreement with Shell Services (22.2.4)

Section 22.2: ACFN . ACFN had general concerns that None None Public are being addressed by their Infrastructure/ agreement with Shell

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services (22.2.5)

Section 22.2: Fort McKay . Fort McKay had general concerns None None Public that are being addressed by their Infrastructure/ agreement with Shell Services (22.2.6)

Section 23: MCFN . MCFN stressed that one of its Traditional most important issues was water, Land Use in terms of quality and quantity (noticed change in Peace (23.2) Athabasca Delta, and changes in water quality were making it harder for them to access their traditional lands and travel to Fort McMurray) . MCFN indicated that oil sands developments should not proceed at the expense of water, land or the animals that were still hunted and trapped for subsistence by a number of MCFN members Section 23: ACFN . Water concerns. Rely on . The Panel concludes that given Shell‟s Traditional Athabasca River for: commitments to work with First Nations, Métis, and o Drinking other aboriginal groups in the area and to take steps Land Use . Has an agreement with Shell o Fishing to address their concerns, it is unlikely that (23.4) o Transportation to access lands traditional land use will be significantly affected as for hunting and trapping a result of the project Section 23: Fort McKay . Traditional lands of the First Traditional Nation and Métis members lies at Land Use the heart of oil sands development . Has an agreement with Shell (23.5)

Section 24: MCFN . Had health concerns; referred to a . MCFN‟s agreement with Shell included . The Panel expects Shell to meet its commitment to Human Health letter written by Dr. O‟Connor, a a commitment by Shell to contribute to MCFN to fully support and participate in any health family physician in Fort a baseline health study of the Fort assessment program McMurray, that expressed Chipewyan population

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(24.2) concern about an increasing . AHW offered to assist MCFN in its incidence of disease and efforts to establish a baseline for the pathology over the past few years health of the community and indicated in Fort Chipewyan that was it would continue to work with WBEA unrelated to lifestyle to implement an ongoing health- monitoring program that would include many of the First Nations, Métis, and other aboriginal people living in the region . AHW believed that the health of the public would not be compromised by the construction and operation of the project

APPENDIX II: BASIC INFORMATION ON THE PARTIES FILING NOTICE OF QUESTION OF CONSTITUTIONAL LAW

Métis Nation of Alberta Region 1 (MNR1)

The Métis Nation of Alberta Region 1 (MNR1) claims to represent the collective interests of the rights-bearing Métis community (including the Métis locals) in Region 1.

Métis Local 125 (Fort Chipewyan Métis)

Métis local 125 members, also known as the Fort Chipewyan Métis, is centered on Fort Chipewyan. Local 125 did submit a “Statement of concern” about the Project in August 2012. In it, the local stated that MNR1 did not have the mandate to negotiate on behalf of local 125.

Métis Local 1935

Métis Local 1935 has been formally registered since 1987 with the Métis Nation of Alberta. Local 1935 is located in Fort McMurray. The Local did submit a Statement of Concern to Alberta Environment in 2008. This SOC was rejected by Alberta Environment based on a decision that Local 1935 did not qualify as “directly affected”

Métis Local 1909

MNA Lakeland Local Council 1909 is a newer Métis local that was incorporated in 2010. This local is based in Lac La Biche.

Athabasca Chipewyan First Nation (ACFN)

ACFN has a registered population of approximately 879 members. ACFN holds rights under Treaty 8. ACFN has eight Indian Reserves (IRs) set aside for its use and benefit pursuant to the Indian Act, R.S.C. 1985, c. I-6: Chipewyan 201, Chipewyan 201A, Chipewyan 201B, Chipewyan 201C, Chipewyan 201D, Chipewyan 201E, Chipewyan 201F, and Chipewyan 201G. The closest IR to projects is the Poplar Point Reserve, IR 201G, located approximately 49 km from the Jackpine Mine Expansion Project.

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Fort McMurray First Nation #468 (FMMFN)

FMMFN is located near Fort McMurray, Alberta. FMMFN has a population of 614 (Dec 2009). FNNFN holds rights under Treaty 8. The four Fort McMurray reserves include Reserve #175 (20km east of Fort McMurray), and Reserves #176, 176A and 176B (located near Anzac on Gregoire Lake approximately 50km southeast of Fort McMurray). Reserve #176 is the largest of the four and the most populated. IR Clearwater 175 (915.4ha) is 80km south of JPME project and 105km south of PRM project; IRs Gregoire Lake 176 (2231.9ha), Gregoire Lake 176A (67.4ha) & Gregoire Lake 176B (17ha) are 100km southeast of JPME project and 130km southeast of PRM project. All IRs are upstream from the Project.

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APPENDIX III: FEDERAL APPROACH TO ABORIGINAL CONSULTATION FOR THE SHELL JACKPINE MINE EXPANSION

DRAFT Aboriginal Consultation Plan

For the Environmental Assessment Process for the Proposed

Shell Jackpine Mine Expansion and Pierre River Mine

January 7, 2011

Introduction

The purpose of this Aboriginal Consultation Plan is to show how the federal government intends to consult with Aboriginal groups during the federal environmental assessment and regulatory processes for Shell‟s proposed Pierre River Mine and Jackpine Mine Expansion (the proposed projects).

The federal government is required, under the Canadian Environmental Assessment Act (CEAA) to conduct an environmental assessment of the proposed projects. The proposed projects also require public hearings and approvals from the Alberta Energy Resources Conservation Board (ERCB).

The Government of Canada is taking a whole-of-government approach to consulting with Aboriginal groups in which the federal Crown‟s Aboriginal consultation obligations are integrated with the environmental assessment to the extent possible. For these proposed projects, federal departments and agencies will coordinate their consultation activities.

Project Descriptions The Pierre River Mine Project proposed by Shell Canada Limited includes the construction, operation, and reclamation of an oil sands surface mine and bitumen extraction facilities in the Fort McMurray area. The proposed mining project is to be located approximately 90 kilometres north of Fort McMurray on Oil Sands Leases on the west side of the Athabasca River. The

51 proposed development includes an open pit, truck and shovel mine, ore handling facility, bitumen extraction facilities, tailings processing facilities, support infrastructure, water and tailings management plans, and an integrated reclamation plan, as well as the construction of a bridge across the Athabasca River. The Pierre River Mine Project is designed to produce a total of 31 800 cubic metres per day (200 000 barrels per day) of bitumen.

Under section 5 of the Canadian Environmental Assessment Act, an environmental assessment is required in relation to this project because Fisheries and Oceans Canada may issue a permit or license under subsection 35(2) of the Fisheries Act and Transport Canada may issue an approval under section 5 of the Navigable Waters Protection Act.

Shell Canada Limited is requesting to amend its Jackpine Mine - Phase 1 approval to access additional mining areas on Oil Sand Leases located adjacent to the Jackpine Mine - Phase 1. The project would add another 100 000 barrels bitumen production per day. This would increase the total bitumen production capacity to 300 000 barrels per day. This expansion will include additional mining areas and associated processing facilities, utilities, and infrastructure.

Under section 5 of the Canadian Environmental Assessment Act, an environmental assessment is required in relation to this project because Fisheries and Oceans Canada may issue a permit or license under subsection 35(2) of the Fisheries Act and Transport Canada may issue an approval under section 5 of the Navigable Waters Protection Act.

For the purposes of the federal environmental assessment, these projects are considered as two separate projects. Similarly, federal aboriginal consultation will be conducted separately for both projects.

The Federal Approach to Aboriginal Consultation The federal government will use the Joint Review Panel process, to the extent possible; to obtain information about potential adverse impacts of the proposed projects on potential or established Aboriginal and treaty rights. Our objective is to capitalize on the opportunities that exist throughout the EA process to gather information about Aboriginal concerns and potential impacts on established or potential Aboriginal and treaty rights in a coordinated manner. There are five distinct consultation opportunities within the Joint Review Panel process and regulatory processes. More information on these opportunities is found on page 4. In addition to the

52 review Joint Review Panel process, the federal government will consult directly with potentially affected Aboriginal groups on matters that fall outside of the Joint Review Panel‟s mandate.

Aboriginal groups could present their views to the federal government and to the Joint Review Joint Review Panel about:

community knowledge and Aboriginal traditional knowledge with respect to the environmental effects of the proposed projects; current use of lands and resources for traditional purposes by Aboriginal persons; and the nature and scope of their potential or established Aboriginal and treaty rights, the impacts the project may have on those rights, and appropriate measures to avoid or mitigate such impacts as they relate to potential environmental effects resulting from the proposed projects.

It is important for Aboriginal groups to make their concerns known to the Joint Review Panel so that the Joint Review Panel can make informed recommendations on the proposed projects.

Crown Consultation Coordination

The Canadian Environmental Assessment Agency (the Agency) is responsible for coordinating federal Aboriginal consultation during the federal environmental assessment of the Shell Jackpine and Pierre River Mine Projects. The Agency fulfills the role of Crown Consultation Coordinator (CCC) for these proposed projects. The CCC will:

Provide Aboriginal groups with information, where necessary, on CEAA and the Joint Review Panel processes and mandates, and the mandates of other federal departments and their involvement in the project review; Receive/Gather information about nature and scope of potential or established Aboriginal and Treaty rights, the impacts the proposed projects may have on those rights, and appropriate mitigation measures to avoid or mitigate such impacts as they relate to potential environmental effects resulting from the proposed projects; Answer any questions from Aboriginal groups about the integration of the consultation and the Joint Review Panel process; Encourage Aboriginal groups to introduce all project specific issues and information that are within the mandate of the Joint Review Panel to the Joint Review Panel process; Meet with Aboriginal groups to discuss any project specific issues that fall outside of the Joint Review Panel mandate (as required); Monitor or participate in all public information sessions conducted by the Joint Review Panel or its secretariat; Monitor and/or attend oral hearings at key sessions depending on the schedule of interveners and/or topics to hear and understand rights issues raised by Aboriginal groups in order to prepare for subsequent consultations;

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Monitor Aboriginal consultation and engagement activities conducted by the proponent to supplement the Crown record; Liaise with the proponent to gain information on their Aboriginal engagement activities; Discuss how Aboriginal groups may participate in consultation on the Joint Review Panel report; Coordinate, in collaboration with Responsible Authorities and any other appropriate federal departments, the consultation on the Joint Review Panel report; Initiate discussions with Aboriginal groups on their participation in any remaining consultation that may be required during the regulatory phase after the filing of the Joint Review Panel report; and Describe funding available to assist Aboriginal groups to prepare for and participate in the Joint Review Joint Review Panel process and consultation activities as well as assist Aboriginal groups with the application for funding process.

Federal Departments (Responsible Authorities) A federal environmental assessment of these projects is required since under Section 5 of the Canadian Environmental Assessment Act (the Act), Fisheries and Oceans Canada (DFO) and Transport Canada (TC) may issue permits in relation to these projects.

Natural Resources Canada (NRCan), Health Canada (HC), Environment Canada (EC), Parks Canada Agency (PCA), and Indian and Northern Affairs Canada (INAC) are federal authorities (FAs) with potential expertise (expert FAs).

Federal departments will refer any requests made by Aboriginal groups on project-related issues to the Crown Consultation Coordinator

Aboriginal Consultation Activities in the Joint Review Panel and Regulatory Processes

There are five distinct opportunities for consultation between the federal government and Aboriginal groups during the joint review Joint Review Panel process and regulatory processes:

Phase I: Initial engagement and consultation on the draft Joint Review Joint Review Panel terms of reference

Phase II: Joint Review Panel process leading to hearings

Phase III: Hearings

Phase IV: Joint Review Panel EA report

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Phase V: Regulatory Phase

The federal government strongly encourages Aboriginal groups to participate in all phases of the Joint Review Panel process to express their views about the project. Information about the Joint Review Panel process will be available to all interested parties as the review proceeds.

Phase I: Initial Engagement and Consultation on the Joint Review Agreement and Terms of Reference

The Agency will conduct a public comment period on the Draft Agreement to Establish a Joint Review Panel (Draft Agreement). At the same time, the Agency will ask for comments on the Terms of Reference attached to the Draft Agreement. This document will establish the mandate and authority of the Joint Review Panel, its composition and the process and procedures for conducting the review.

The Joint Review Panel Agreement and Terms of Reference for the Joint Review Panel will be developed in consultation with the Energy Resources Conservation Board (ERCB). It will take into consideration the comments received from Aboriginal groups, the public, the proponent and any other interested parties. Each proposal put forward by Aboriginal groups will be carefully considered and the final Joint Review Panel Agreement and Terms of Reference will balance the interests and needs of all interested and potentially affected parties.

Phase II: Joint Review Panel process leading to Hearing

After the Joint Review Panel concludes that it has adequate information to proceed to hearing, it will announce the hearing. If the Joint Review Panel determines that it still does not have adequate information, it will inform the proponent of outstanding information requirements. When the Joint Review Panel is ready to announce the hearing, it will provide a minimum of 60 days of notice prior to the commencement of the hearing.

The Crown Consultation Coordinator will be available to discuss and meet directly with Aboriginal groups during Phases II and III on the following subjects:

Matters that fall outside of the Joint Review Panel‟s mandate, although these are expected to be the exception; Provision of information on available funding and preparation of applications; and Continued assistance in understanding the integration of the federal government‟s Aboriginal consultation and Joint Review Panel processes and how to participate.

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Phase III - Hearings During Phases III, Aboriginal groups are strongly encouraged to provide the Joint Review Panel with information related to the nature and scope of potential or established Aboriginal and treaty rights and the potential adverse impacts that the proposed projects may have on these rights. Aboriginal groups are invited to propose appropriate measures to avoid or mitigate such impacts on potential or established Aboriginal and treaty rights.

Before the scheduled start of the public hearings, the Joint Review Panel will announce the location and timing of the public hearings and will set deadlines for the filing of written submission and evidence. The ERCB‟s Directive 029 provides further details of the hearing process that will likely be followed by the Joint Review Panel.

Transcripts of the public hearings will be prepared and be available through the public registry on the Agency‟s website (Registry Numbers 10-03-59540 and 10-03-59539 http://www.ceaa- acee.gc.ca/050/index-eng.cfm)

The Crown Consultation Coordinator will be available to continue to discuss and meet directly with Aboriginal groups during Phase III on the subjects noted above and to provide further information, including information about available participation funding, related to Phase IV - consultation on the Joint Review Panel report.

All matters that fall within the Joint Review Panel‟s mandate should be provided to the Panel. This would include potential impacts to current uses of land for traditional purposes, community knowledge and Aboriginal traditional knowledge and cumulative effects resulting from the proposed projects in combination with other existing or reasonable foreseeable projects or activities.

At the conclusion of the public hearings, the Joint Review Panel will prepare its report. The Joint Review Panel will consider in its report information provided by Aboriginal groups regarding the manner in which the project may affect potential or established Aboriginal and treaty rights.

Phase IV – Consultation on the Joint Review Panel Report

After the Joint Review Panel has issued its report, the Crown Consultation Coordinator, will consult with Aboriginal groups about the report and its recommendations. This consultation will

56 seek to establish whether all concerns about potential project impacts on potential or established Aboriginal and treaty rights have been characterized accurately. The federal government will also consult on the manner and extent to which any recommended mitigation measures might serve to accommodate these concerns, and whether there remain any outstanding issues.

The Joint Review Panel‟s report and the record established through the Joint Review Panel review process will be the primary source of information to support the federal government‟s assessment of the project‟s potential adverse impacts on potential or established Aboriginal and treaty rights. It is therefore important that Aboriginal groups provide all relevant information to the Joint Review Panel in Phases II and III.

This report on consultation will be considered at the same time as federal departments seek Federal Cabinet approval for the government response to the Joint Review Panel report. It is important to note that the federal departments must take a course of action that is in conformance with the federal Cabinet approval of the government response. The federal Cabinet could decide that further consultation with Aboriginal groups is required. The approved government response will be sent to all Aboriginal groups and made public.

Following the federal Cabinet approval of the government response to the Joint Review Panel report and the decision pursuant to the Energy Resources Conservation Act, and the Oil Sands Conservation Act, federal departments and provincial agencies may proceed to the regulatory approvals phase.

Phase V – Regulatory Phase

In deliberating decisions on regulatory permitting, federal departments may need to further consult with Aboriginal groups on specific regulatory issues. The decision to undertake additional consultation will take into consideration:

The consultation record; Mitigation, compensation, accommodation measures to address outstanding concerns not addressed through the environmental assessment; The government response to the Joint Review Panel report; and Any direction that may be provided by federal Cabinet.

Responsibility for Aboriginal consultation throughout this phase, which could include specific details on project construction, operation and eventual decommissioning, will be transferred

57 from the Canadian Environmental Assessment Agency to Fisheries and Oceans Canada (other RAS). Federal departments or their representatives will continue to be available to discuss regulatory matters directly with Aboriginal groups if there is a further need to consult.

Participant Funding Program – Funding for Aboriginal Groups

The Aboriginal Funding Envelope under the Participant Funding Program supports Aboriginal groups engagement in Aboriginal consultation activities and public participation activities on projects that are undergoing a federal environmental assessment under the CEAA. This includes funding to participate in the Joint Review Panel process. The program is administered by the Agency to assist with eligible expenses, such as travel costs and fees for experts, to support participation in the environmental assessment process.

Funding for Aboriginal participation in consultation on the Joint Review Panel report (Phase IV) will be made available at a later date through the Aboriginal Funding Envelope of the Canadian Environmental Assessment Agency‟s Participant Funding Program. The terms and conditions of the Participant Funding Program do not provide for funding of activities in the regulatory phase (Phase V) as these activities are outside the environmental assessment process.

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ENDNOTES

1 Letter dated September 30, 2011 from Gary Perkins, Legal Counsel for the Joint Review Panel, JRP Established to Review the Jackpine Mine Expansion Project, CEA Agency, to Athabasca Chipewyan First Nation (IRC) and Mikisew Cree First Nation (GIR): http://www.ceaa.gc.ca/050/documents/52453/52453E.pdf 2 Energy Resources Conservation Board Rules of Practice, Alta Reg 98/2011 at http://canlii.ca/t/lc61. 3 Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43, [2010] 2 S.C.R. 650, at paragraph 62. 4 Shell Canada Oil Sands Jackpine Mine Expansion & Pierre River Mine Public Disclosure, January 2007 at Summary, p.1: http://environment.alberta.ca/documents/Shell_Jackpine_Pierre_PDD.pdf 5 Oil Sands Conservation Act, RSA 2000, c O-7: http://www.canlii.org/en/ab/laws/stat/rsa-2000-c-o-7/latest/rsa-2000-c-o-7.html 6 Oil Sands Conservation Act, RSA 2000, c O-7: http://www.canlii.org/en/ab/laws/stat/rsa-2000-c-o-7/latest/rsa-2000-c-o-7.html 7 Fort McKay First Nation Oil Sands Regulation, SOR/2007-79 : http://laws-lois.justice.gc.ca/eng/regulations/SOR- 2007-79/index.html First Nations Commercial and Industrial Development Act S.C. 2005, c. 53: http://laws-lois.justice.gc.ca/eng/acts/F- 11.64/

8 http://www.fortmckay.com/events_news_archive_08.html, http://www.aadnc-aandc.gc.ca/aiarch/mr/nr/m-a2006/2- 02775-eng.asp and http://www.aadnc-aandc.gc.ca/aiarch/mr/nr/m-a2007/2-2880-eng.asp.

9 Shell Project Description, October 1, 2001, at p. 19, section 4.0 Environmental Matters, d. Lands Used for Traditional Purposes 10 Shell Project Description, October 1, 2001, at pp. 1, 3, section 4.0 Environmental Matters, c. Consultations Held 11 EUB/Canada Joint Review Panel Report, EUB Decision 2004-009, Shell Canada Limited Applications for an Oil Sands Mine, Bitumen Extraction Plant, Cogeneration Plant, and Water Pipeline in the Fort McMurray Area, February 5, 2004 at p. 4: http://www.ceaa-acee.gc.ca/Content/2/0/4/2042EA47-3261-4136-A526- 9B775D961BD1/report_e.pdf. Environmental Protection and Enhancement Act, RSA 2000, c E-12: http://www.canlii.org/eliisa/highlight.do?text=environmental+protection&language=en&searchTitle=Alberta&path= /en/ab/laws/stat/rsa-2000-c-e-12/latest/rsa-2000-c-e-12.html 12 Oil Sands Conservation Act, RSA 2000, c O-7, in force between May 14, 2002 and May 23, 2006 : http://www.canlii.org/en/ab/laws/stat/rsa-2000-c-o-7/39373/rsa-2000-c-o-7.html#history 13 EUB/Canada Joint Review Panel Report, EUB Decision 2004-009, Shell Canada Limited Applications for an Oil Sands Mine, Bitumen Extraction Plant, Cogeneration Plant, and Water Pipeline in the Fort McMurray Area, February 5, 2004 at p. 3: http://www.ceaa-acee.gc.ca/Content/2/0/4/2042EA47-3261-4136-A526- 9B775D961BD1/report_e.pdf 14 Hydro and Electric Energy Act, RSA 2000, c H-16, in force between June 1, 2003 and December 31, 2007: http://www.canlii.org/en/ab/laws/stat/rsa-2000-c-h-16/39613/rsa-2000-c-h-16.html#history 15 EUB/Canada Joint Review Panel Report, EUB Decision 2004-009, Shell Canada Limited Applications for an Oil Sands Mine, Bitumen Extraction Plant, Cogeneration Plant, and Water Pipeline in the Fort McMurray Area, February 5, 2004 at p. 3: http://www.ceaa-acee.gc.ca/Content/2/0/4/2042EA47-3261-4136-A526- 9B775D961BD1/report_e.pdf 16Pipeline Act, RSA 2000, c P-15, in force between April 1, 2002 and May 23, 2006: http://www.canlii.org/en/ab/laws/stat/rsa-2000-c-p-15/39868/rsa-2000-c-p-15.html#history 17 EUB/Canada Joint Review Panel Report, EUB Decision 2004-009, Shell Canada Limited Applications for an Oil Sands Mine, Bitumen Extraction Plant, Cogeneration Plant, and Water Pipeline in the Fort McMurray Area,

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February 5, 2004 at p. 4: http://www.ceaa-acee.gc.ca/Content/2/0/4/2042EA47-3261-4136-A526- 9B775D961BD1/report_e.pdf 18 EUB/Canada Joint Review Panel Report, EUB Decision 2004-009, Shell Canada Limited Applications for an Oil Sands Mine, Bitumen Extraction Plant, Cogeneration Plant, and Water Pipeline in the Fort McMurray Area, February 5, 2004 at p. 5: http://www.ceaa-acee.gc.ca/Content/2/0/4/2042EA47-3261-4136-A526- 9B775D961BD1/report_e.pdf 19 Canadian Environmental Assessment Act, S.C. 1992, c. 37, in force between June 23, 1992 and July 6, 2012: http://laws-lois.justice.gc.ca/eng/acts/C-15.2/page-1.html 20 Canadian Environmental Assessment Act, S.C. 1992, c. 37, in force between June 23, 1992 and July 6, 2012: http://laws-lois.justice.gc.ca/eng/acts/C-15.2/page-1.html 21 Energy Resources Conservation Act, RSA 2000, c E-10, in force between January 1, 2002 and December 6, 2007: http://www.canlii.org/en/ab/laws/stat/rsa-2000-c-e-10/39033/rsa-2000-c-e-10.html#history 22 EUB/Canada Joint Review Panel Report, EUB Decision 2004-009, Shell Canada Limited Applications for an Oil Sands Mine, Bitumen Extraction Plant, Cogeneration Plant, and Water Pipeline in the Fort McMurray Area, February 5, 2004 at p. 5: http://www.ceaa-acee.gc.ca/Content/2/0/4/2042EA47-3261-4136-A526- 9B775D961BD1/report_e.pdf 23 EUB/Canada Joint Review Panel Report, EUB Decision 2004-009, Shell Canada Limited Applications for an Oil Sands Mine, Bitumen Extraction Plant, Cogeneration Plant, and Water Pipeline in the Fort McMurray Area, February 5, 2004 at Appendix 3, Hearing Participants, p. 107-110: http://www.ceaa- acee.gc.ca/Content/2/0/4/2042EA47-3261-4136-A526-9B775D961BD1/report_e.pdf 24 See EUB/Canada Joint Review Panel Report, EUB Decision 2004-009, Shell Canada Limited Applications for an Oil Sands Mine, Bitumen Extraction Plant, Cogeneration Plant, and Water Pipeline in the Fort McMurray Area, February 5, 2004 at section 3, Agreements, pp. 6-7: http://www.ceaa-acee.gc.ca/Content/2/0/4/2042EA47-3261- 4136-A526-9B775D961BD1/report_e.pdf 25 EUB/Canada Joint Review Panel Report, EUB Decision 2004-009, Shell Canada Limited Applications for an Oil Sands Mine, Bitumen Extraction Plant, Cogeneration Plant, and Water Pipeline in the Fort McMurray Area, February 5, 2004 at Agreements, 3.6 Views of the Panel, p. 7: http://www.ceaa- acee.gc.ca/Content/2/0/4/2042EA47-3261-4136-A526-9B775D961BD1/report_e.pdf 26 EUB/Canada Joint Review Panel Report, EUB Decision 2004-009, Shell Canada Limited Applications for an Oil Sands Mine, Bitumen Extraction Plant, Cogeneration Plant, and Water Pipeline in the Fort McMurray Area, February 5, 2004 at Section 3, Agreements, 3.2, MCFN and Shell Agreement; 3.3 ACFN and Shell Agreement; 3.4 Fort McKay and Shell Agreement, pp. 6-7: http://www.ceaa-acee.gc.ca/Content/2/0/4/2042EA47-3261-4136-A526- 9B775D961BD1/report_e.pdf 27 See EUB/Canada Joint Review Panel Report, EUB Decision 2004-009, Shell Canada Limited Applications for an Oil Sands Mine, Bitumen Extraction Plant, Cogeneration Plant, and Water Pipeline in the Fort McMurray Area, February 5, 2004 at section 9, Water Management at p. 29 for views of MCFN and WBFN: http://www.ceaa- acee.gc.ca/Content/2/0/4/2042EA47-3261-4136-A526-9B775D961BD1/report_e.pdf 28 See EUB/Canada Joint Review Panel Report, EUB Decision 2004-009, Shell Canada Limited Applications for an Oil Sands Mine, Bitumen Extraction Plant, Cogeneration Plant, and Water Pipeline in the Fort McMurray Area, February 5, 2004 at section 10, Surface Water Quality at p. 33 for views of MCFN, WBFN, and ACFN: http://www.ceaa-acee.gc.ca/Content/2/0/4/2042EA47-3261-4136-A526-9B775D961BD1/report_e.pdf 29 See EUB/Canada Joint Review Panel Report, EUB Decision 2004-009, Shell Canada Limited Applications for an Oil Sands Mine, Bitumen Extraction Plant, Cogeneration Plant, and Water Pipeline in the Fort McMurray Area, February 5, 2004 at section 11, Surface Hydrology at p. 37 for views of MCFN, ACFN, and Fort McKay: http://www.ceaa-acee.gc.ca/Content/2/0/4/2042EA47-3261-4136-A526-9B775D961BD1/report_e.pdf 30 See EUB/Canada Joint Review Panel Report, EUB Decision 2004-009, Shell Canada Limited Applications for an Oil Sands Mine, Bitumen Extraction Plant, Cogeneration Plant, and Water Pipeline in the Fort McMurray Area, February 5, 2004 at section 12, Aquatic Resources at p. 40 for views of MCFN: http://www.ceaa- acee.gc.ca/Content/2/0/4/2042EA47-3261-4136-A526-9B775D961BD1/report_e.pdf

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31 See EUB/Canada Joint Review Panel Report, EUB Decision 2004-009, Shell Canada Limited Applications for an Oil Sands Mine, Bitumen Extraction Plant, Cogeneration Plant, and Water Pipeline in the Fort McMurray Area, February 5, 2004 at section 13, Groundwater at p. 45 for views of MCFN, at p. 46 for views of ACFN and Fort McKay: http://www.ceaa-acee.gc.ca/Content/2/0/4/2042EA47-3261-4136-A526-9B775D961BD1/report_e.pdf 32 See EUB/Canada Joint Review Panel Report, EUB Decision 2004-009, Shell Canada Limited Applications for an Oil Sands Mine, Bitumen Extraction Plant, Cogeneration Plant, and Water Pipeline in the Fort McMurray Area, February 5, 2004 at section 15, Climate Change at p. 54 for views of MCFN: http://www.ceaa- acee.gc.ca/Content/2/0/4/2042EA47-3261-4136-A526-9B775D961BD1/report_e.pdf 33 See EUB/Canada Joint Review Panel Report, EUB Decision 2004-009, Shell Canada Limited Applications for an Oil Sands Mine, Bitumen Extraction Plant, Cogeneration Plant, and Water Pipeline in the Fort McMurray Area, February 5, 2004 at section 16, Terrestrial Resources at p. 56 and 60 for views of MCFN, ACFN and Fort McKay: http://www.ceaa-acee.gc.ca/Content/2/0/4/2042EA47-3261-4136-A526-9B775D961BD1/report_e.pdf 34 See EUB/Canada Joint Review Panel Report, EUB Decision 2004-009, Shell Canada Limited Applications for an Oil Sands Mine, Bitumen Extraction Plant, Cogeneration Plant, and Water Pipeline in the Fort McMurray Area, February 5, 2004 at section 17, Muskeg River Integrity at p. 65 for views of Fort McKay: http://www.ceaa- acee.gc.ca/Content/2/0/4/2042EA47-3261-4136-A526-9B775D961BD1/report_e.pdf 35 See EUB/Canada Joint Review Panel Report, EUB Decision 2004-009, Shell Canada Limited Applications for an Oil Sands Mine, Bitumen Extraction Plant, Cogeneration Plant, and Water Pipeline in the Fort McMurray Area, February 5, 2004 at section 21, Regional Environmental Initiatives at p. 75 and p. 76 for views of MCFN, WBFN, ACFN and Fort McKay: http://www.ceaa-acee.gc.ca/Content/2/0/4/2042EA47-3261-4136-A526- 9B775D961BD1/report_e.pdf 36 See EUB/Canada Joint Review Panel Report, EUB Decision 2004-009, Shell Canada Limited Applications for an Oil Sands Mine, Bitumen Extraction Plant, Cogeneration Plant, and Water Pipeline in the Fort McMurray Area, February 5, 2004 at section 22, Social and Economic Impacts at p. 80 and 81 for views of WBFN, MCFN, ACFN and Fort McKay: http://www.ceaa-acee.gc.ca/Content/2/0/4/2042EA47-3261-4136-A526- 9B775D961BD1/report_e.pdf 37 See EUB/Canada Joint Review Panel Report, EUB Decision 2004-009, Shell Canada Limited Applications for an Oil Sands Mine, Bitumen Extraction Plant, Cogeneration Plant, and Water Pipeline in the Fort McMurray Area, February 5, 2004 at section 23, Traditional Land Use at p. 84 and 85 for views of MCFN, WBFN, ACFN and Fort McKay: http://www.ceaa-acee.gc.ca/Content/2/0/4/2042EA47-3261-4136-A526-9B775D961BD1/report_e.pdf 38 See EUB/Canada Joint Review Panel Report, EUB Decision 2004-009, Shell Canada Limited Applications for an Oil Sands Mine, Bitumen Extraction Plant, Cogeneration Plant, and Water Pipeline in the Fort McMurray Area, February 5, 2004 at section 24, Human Health at p. 86 for views of MCFN: http://www.ceaa- acee.gc.ca/Content/2/0/4/2042EA47-3261-4136-A526-9B775D961BD1/report_e.pdf 39 See EUB/Canada Joint Review Panel Report, EUB Decision 2004-009, Shell Canada Limited Applications for an Oil Sands Mine, Bitumen Extraction Plant, Cogeneration Plant, and Water Pipeline in the Fort McMurray Area, February 5, 2004 at section 26, Public Consultation at p. 89 and p. 90 for views of MCFN, WBFN, ACFN and Fort McKay: http://www.ceaa-acee.gc.ca/Content/2/0/4/2042EA47-3261-4136-A526-9B775D961BD1/report_e.pdf 40 EUB/Canada Joint Review Panel Report, EUB Decision 2004-009, Shell Canada Limited Applications for an Oil Sands Mine, Bitumen Extraction Plant, Cogeneration Plant, and Water Pipeline in the Fort McMurray Area, February 5, 2004: http://www.ceaa-acee.gc.ca/Content/2/0/4/2042EA47-3261-4136-A526- 9B775D961BD1/report_e.pdf 41 EUB/Canada Joint Review Panel Report, EUB Decision 2004-009, Shell Canada Limited Applications for an Oil Sands Mine, Bitumen Extraction Plant, Cogeneration Plant, and Water Pipeline in the Fort McMurray Area, February 5, 2004 at Executive Summary and at Decision, p. 1: http://www.ceaa- acee.gc.ca/Content/2/0/4/2042EA47-3261-4136-A526-9B775D961BD1/report_e.pdf 42 EUB/Canada Joint Review Panel Report, EUB Decision 2004-009, Shell Canada Limited Applications for an Oil Sands Mine, Bitumen Extraction Plant, Cogeneration Plant, and Water Pipeline in the Fort McMurray Area, February 5, 2004 at Executive Summary and at Decision, p. 1: http://www.ceaa- acee.gc.ca/Content/2/0/4/2042EA47-3261-4136-A526-9B775D961BD1/report_e.pdf

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43 EUB/Canada Joint Review Panel Report, EUB Decision 2004-009, Shell Canada Limited Applications for an Oil Sands Mine, Bitumen Extraction Plant, Cogeneration Plant, and Water Pipeline in the Fort McMurray Area, February 5, 2004 at Executive Summary and at Decision, p. 1: http://www.ceaa- acee.gc.ca/Content/2/0/4/2042EA47-3261-4136-A526-9B775D961BD1/report_e.pdf 44 The Province of Alberta Oil Sands Conservation Act, Alberta Energy and Utilities Board in the matter of a scheme of Shell Canada Limited for the recovery of oil sands or production of oil sands products from the Wabiskaw-McMurray deposit in the Athabasca oil sands area approval no. 9756 http://www.qp.alberta.ca/documents/orders/orders_in_council/2004/204/2004_075.html 45 http://www.pco-bcp.gc.ca/oic- ddc.asp?lang=eng&Page=secretariats&txtOICID=&txtFromDate=&txtToDate=&txtPrecis=jackpine&txtDepartment =&txtAct=&txtChapterNo=&txtChapterYear=&txtBillNo=&rdoComingIntoForce=&DoSearch=Search+%2F+List &viewattach=6653&blnDisplayFlg=1 46 Letters dated March 6, 2007 from AENV, Mike Boyd, Regional Environmental Manager, Northern Region (Designated Director Under the Act) to Mr. Keith Firmin, P. Eng. Manager Regulatory Affairs & Land Shell Canada Limited regarding Shell Jackpine Mine Expansion and Pierre River Mine: http://environment.alberta.ca/documents/Shell_Jackpine_Mine_Expansion-EIA_required_letter.pdf http://environment.alberta.ca/documents/Shell_Pierre_River_Mine-EIA_required_letter.pdf Environmental Protection and Enhancement Act, RSA 2000, c E-12: http://www.canlii.org/eliisa/highlight.do?text=environmental+protection&language=en&searchTitle=Alberta&path= /en/ab/laws/stat/rsa-2000-c-e-12/latest/rsa-2000-c-e-12.html 47 Environmental Assessment (Mandatory and Exempted Activities) Regulation, Alta Reg 111/1993: http://www.canlii.org/en/ab/laws/regu/alta-reg-111-1993/latest/alta-reg-111-1993.html; As between Feb 25, 2003 and Apr 15, 2008: http://www.canlii.org/en/ab/laws/regu/alta-reg-111-1993/42910/alta- reg-111-1993.html#history 48 Letters dated March 6, 2007 from AENV, Mike Boyd, Regional Environmental Manager, Northern Region (Designated Director Under the Act) to Mr. Keith Firmin, P. Eng. Manager Regulatory Affairs & Land Shell Canada Limited regarding Shell Jackpine Mine Expansion and Pierre River Mine: http://environment.alberta.ca/documents/Shell_Jackpine_Mine_Expansion-EIA_required_letter.pdf http://environment.alberta.ca/documents/Shell_Pierre_River_Mine-EIA_required_letter.pdf 49 Jackpine Mine Expansion Project Volume 1: Project Description at cover letter of application and EIA, dated December 20, 2007, from Shell to Stephen Smith, Executive Manager, ERCB and Ernie Hui, Regional Director, Northern Region, AENV: http://www.ceaa.gc.ca/050/documents_staticpost/59539/46923/volume_1.pdf Letter dated October 29, 2010 from Shell to Terry Abel, Executive Manager, Oil Sands Branch, ERCB: http://www.ceaa.gc.ca/050/documents/47104/47104E.PDF Final Terms of Reference Environmental Impact Assessment (EIA) Report for the Shell Canada Limited Jackpine Mine Expansion & Pierre River Mine Issued by: Alberta Environment dated November 28, 2007 at p. 1: http://environment.alberta.ca/documents/Shell_Jackpine_Pierre_FTOR.pdf 50 Alberta’s First Nations Consultation Guidelines on Land Management and Resource Development (updated November 14, 2007) http://www.aboriginal.alberta.ca/documents/First_Nations_and_Metis_Relations/First_Nations_Consultation_Guide lines_LM_RD.pdf 51 Government of Alberta’s First Nations Consultation Policy on Land Management and Resource Development (May 16, 2005): http://www.aboriginal.alberta.ca/documents/GOAFirstNationsConsultationPolicy-May-2005.pdf 52 Framework for Consultation Guidelines: http://www.aboriginal.alberta.ca/documents/Framework_May_19_2006.pdf 53 Part 1: First Nations Consultation Guidelines on Land Management and Resource Development (updated November 14, 2007) at p. 7: http://www.aboriginal.alberta.ca/documents/First_Nations_and_Metis_Relations/First_Nations_Consultation_Guide lines_LM_RD.pdf

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54 Part 1: First Nations Consultation Guidelines on Land Management and Resource Development (updated November 14, 207) at p. 7: http://www.aboriginal.alberta.ca/documents/First_Nations_and_Metis_Relations/First_Nations_Consultation_Guide lines_LM_RD.pdf 55 Part 1: First Nations Consultation Guidelines on Land Management and Resource Development (updated November 14, 2007) at p. 3: http://www.aboriginal.alberta.ca/documents/First_Nations_and_Metis_Relations/First_Nations_Consultation_Guide lines_LM_RD.pdf 56 Letters dated March 6, 2007 from AENV, Mike Boyd, Regional Environmental Manager, Northern Region (Designated Director Under the Act) to Mr. Keith Firmin, P. Eng. Manager Regulatory Affairs & Land Shell Canada Limited regarding Shell Jackpine Mine Expansion and Pierre River Mine: http://environment.alberta.ca/documents/Shell_Jackpine_Mine_Expansion-EIA_required_letter.pdf http://environment.alberta.ca/documents/Shell_Pierre_River_Mine-EIA_required_letter.pdf 57 Cabinet Directive on Improving the Performance of the Regulatory System for Major Resource Projects, at http://www.mpmo-bggp.gc.ca/documents/pdf/directive-eng.pdf. 58 Draft terms of reference Environmental Impact Assessment (EIA) report for the Shell Canada Limited Jackpine Expansion and Pierre River Mining Areas (May 2007): http://environment.alberta.ca/documents/Shell_Jackpine_Pierre_PToR.pdf 59 Public comments on the proposed terms of reference: http://environment.alberta.ca/documents/Shell_JE-PRM_Combined_Comments.pdf 60 Public Notice, Final Terms of Reference for Shell Canada Limited‟s proposed Jackpine Mine Expansion and Pierre River Mine Project environmental Impact Assessment: http://environment.alberta.ca/documents/Shell_Jackpine_Pierre_FTOR_notice.pdf 61 Canada-Alberta Agreement on Environmental Assessment Cooperation (2005): http://www.ceaa-acee.gc.ca/default.asp?lang=En&n=F93B8BF6-1 62 Jackpine Mine Expansion Project Volume 1: Project Description at cover letter of application and EIA, dated December 20, 2007, from Shell to Stephen Smith, Executive Manager, ERCB and Ernie Hui, Regional Director, Northern Region, AENV; and see Jackpine Mine Expansion Project Volume 1: Project Description at page 577, Section 19.2, 3.1(a), 1.5: http://www.ceaa.gc.ca/050/documents_staticpost/59539/46923/volume_1.pdf 63 Letter dated May 30, 2008 from Shell Canada Energy to Stephen Smith, Executive Manager, ERCB, and to Mike Boyd, Regional Environmental Manager, Alberta Environment: http://www.ceaa.gc.ca/050/documents_staticpost/59539/46927/EIA_Update_001_to_180.pdf 64 Notice of Application Athabasca Oil Sands Area Energy Resources Conservation Board Application no. 1554388; Alberta Environment Environmental Protection and Enhancement Act Applications no. 005-00153125 and 006- 00153125; Environmental Impact Assessment Report Water Act file no. 00186157; Shell Canada Limited Jackpine Mine Expansion: http://www.ceaa.gc.ca/050/documents/46931/46931E.PDF Notice of Application Athabasca Oil Sands Area Energy Resources Conservation Board Application no. 1554396; Alberta Environment Environmental Protection and Enhancement Act Application no. 001-00245358; Environmental Impact Assessment Report Water Act file no. 00245489; Shell Canada Limited Pierre River Mine: http://environment.alberta.ca/documents/Shell_Pierre_River_Public_Notice.pdf 65 Notice of Application Athabasca Oil Sands Area Energy Resources Conservation Board Application no. 1554388; Alberta Environment Environmental Protection and Enhancement Act Applications no. 005-00153125 and 006-00153125; Environmental Impact Assessment Report Water Act file no. 00186157; Shell Canada Limited Jackpine Mine Expansion: http://www.ceaa.gc.ca/050/documents/46931/46931E.PDF 66 Oil Sands Conservation Act, RSA 2000, c O-7: http://www.canlii.org/en/ab/laws/stat/rsa-2000-c-o-7/latest/rsa-2000-c-o-7.html 67 Environmental Protection and Enhancement Act, RSA 2000, c E-12:

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http://www.canlii.org/eliisa/highlight.do?text=environmental+protection&language=en&searchTitle=Alberta&path= /en/ab/laws/stat/rsa-2000-c-e-12/latest/rsa-2000-c-e-12.html 68 Environmental Protection and Enhancement Act, RSA 2000, c E-12: http://www.canlii.org/eliisa/highlight.do?text=environmental+protection&language=en&searchTitle=Alberta&path= /en/ab/laws/stat/rsa-2000-c-e-12/latest/rsa-2000-c-e-12.html 69 Water Act, RSA 2000, c W-3: http://www.canlii.org/en/ab/laws/stat/rsa-2000-c-w-3/latest/rsa-2000-c-w-3.html 70 Fort Chipewyan Métis Local 125 Métis Nation of Alberta submitted a SOC on August 11, 2012. Letter dated August 11, 2012 from Fred (Jumbo) Fraser, President, Fort Chipewyan Métis Local 125 Métis Nation of Alberta to Jill Adams, Panel Manager, CEA Agency: http://www.ceaa.gc.ca/050/documents/p59540/80882E.pdf Suncor Energy Inc. Submitted a SOC on November 17, 2010. Letter dated November17, 2010 from Cecilia Y. Jeje Msc., PhD, Senior Environmental Advisor, Environmental Assessment Approvals, Suncor Energy Inc. To Richard Houlihan, Manager, ERCB: http://www.ceaa.gc.ca/050/documents/48832/48832E.pdf 71 Letter dated September 26, 2008 from Mikisew Cree First Nation Industry Relations (IRC) to Alberta Environment Regulatory Approvals Centre: http://www.ceaa.gc.ca/050/documents/46942/46942E.PDF 72 Letter dated October 2, 2008 from Athabasca Chipewyan First Nation IRC to Alberta Environment Regulatory Approvals Centre: http://www.ceaa.gc.ca/050/documents/46943/46943E.PDF 73 Letter dated October 2, 2008 from Fort Mckay IRC to Alberta Environment Regulatory Approvals Centre: http://www.ceaa.gc.ca/050/documents/46944/46944E.PDF 74Letter dated October 2, 2008 from Chipewyan Prairie Dene First Nation IRC to Honourable Rob Renner, Minister of the Environment: http://www.ceaa.gc.ca/050/documents/46950/46950E.pdf 75 Letter dated October 2, 2008 from Fort McMurray #468 First Nation IRC to Honourable Rob Renner, Minister of the Environment: http://www.ceaa.gc.ca/050/documents/46952/46952E.pdf 76 Letter dated October 2, 2008 from Métis Nation of Alberta, Local 1935 to Alberta Environment Regulatory Approvals Centre: http://www.ceaa.gc.ca/050/documents/46947/46947E.PDF 77 Letter dated October 2, 2008 from Wood Buffalo Métis Corporation to Kern Singh, Regional Approvals Manager, Alberta Environment: http://www.ceaa.gc.ca/050/documents/46958/46958E.PDF 78 Letter dated September 28, 2009 from Alberta Environment to Shell (with attached chart) advising that submissions of ten groups were accepted as statements of concern in respect of the Jackpine Mine Expansion and Renewal and the Pierre River Mine Application. 79 Via letter dated November 2, 2011 from Chipewyan Prairie Dene First Nation IRC to Jill Adams, Panel Manager - Review Panels Division Canadian Environmental Assessment Agency; Tara Rogers, Regulatory Coordinator, Energy Resources Conservation Board; Randall Barrett, Acting Director - Northern Region, Environment and Water whereby Chipewyan Prairie Dene First Nation IRC withdrew its SOC: http://www.ceaa.gc.ca/050/documents/53524/53524E.pdf 80Eleven letters dated December 10, 2008 from Donald Crowe, Manager, Regulatory Approvals, Shell Canada Energy, to those groups whose statements of concern were accepted: http://www.ceaa.gc.ca/050/documents/46990/46990E.PDF See also letter dated September 28, 2009 from Alberta Environment to Shell (with attached chart) advising that submissions of ten groups were accepted as statements of concern in respect of the Jackpine Mine Expansion and Renewal and the Pierre River Mine Application: http://www.ceaa.gc.ca/050/documents/47058/47058E.PDF 81 Application for the Approval of the Jackpine Mine Expansion Project, Supplemental Information, ERCB SIRs and AENV SIRs and Supplements http://www.ceaa.gc.ca/050/documents_staticpost/59540/47059/jackpine_r1_0001_to_0284.pdf 82 Application for the Approval of the Jackpine Mine Expansion Project, Supplemental Information Round 2 http://www.ceaa.gc.ca/050/documents/47067/47067E.pdf 83 Shell Canada Energy: Round 3 Supplemental Information Request Responses, Jackpine Mine Expansion Project and Pierre River Mine Project, dated August 9, 2010: http://www.ceaa.gc.ca/050/documents/47070/47070E.pdf

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http://www.ceaa.gc.ca/050/documents/47069/47069E.pdf 84 Letter dated January 29, 2009 from Shell Canada Energy, John Abbott, Executive Vice President Heavy Oil, to Nicole Nicholls, Project Manager, Athabasca Chipewyan First Nation IRC: http://www.ceaa.gc.ca/050/documents/47062/47062E.PDF 85 Mikisew Cree First Nation GIR Review of Shell‟s Jackpine Mine Expansion Update, AENV and ERCB SIRs, dated June 2010: http://www.ceaa.gc.ca/050/documents/47066/47066E.PDF Mikisew Cree First Nation GIR Review of Shell‟s Responses to the MSES Technical Review for the Jackpine Mine Expansion Project and Pierre River Mine Project, dated December 2010: http://www.ceaa.gc.ca/050/documents/48460/48460E.pdf 86 Letter dated August 31, 2010 from Tara Rogers, Application Coordinator, ERCB, to Cathleen O‟Brien, Regulatory Affairs Coordinator, Mikisew Cree First Nation, GIR: http://www.ceaa.gc.ca/050/documents/47094/47094E.pdf 87 Letter dated October 10, 2010 from Dallas Johnson, Environmental Assessment Team Leader, AENV to Terry Abel, ERCB: http://environment.alberta.ca/documents/Jackpine-Pierre-River-Project-EIA-Comp-Letter-Oct14- 2010.pdf 88 Canadian Environmental Assessment Act, S.C. 1992, c. 37 in force between June 23, 1992 and July 6, 2012: http://laws-lois.justice.gc.ca/eng/acts/C-15.2/page-1.html 89 Letter dated September 1, 2010 from Jo-Anne L. Foy, Superintendent, Environmental Affairs, Programs, Prairie and Northern Region, Transport Canada: http://www.ceaa.gc.ca/050/documents/47097/47097E.PDF 90 Letter dated September 1, 2010 from Jo-Anne L. Foy, Superintendent, Environmental Affairs, Programs, Prairie and Northern Region, Transport Canada: http://www.ceaa.gc.ca/050/documents/47097/47097E.PDF 91Letter dated October 1, 2010 from Barry Briscoe, Regional Director, Oceans, Habitat and Species at Risk, Central and Arctic Region: http://www.ceaa.gc.ca/050/documents/47100/47100E.PDF http://www2.mpmo-bggp.gc.ca/MPTracker/Attachment-Attachement.aspx?aid=205 92 Canadian Environmental Assessment Agency, News Release, dated December 13, 2010: http://www.ceaa.gc.ca/050/document-eng.cfm?document=46870 93 Notice of Referral to a Review Panel, Jackpine Mine Expansion Project http://www.ceaa.gc.ca/050/document-eng.cfm?document=80019 94 Notice of Commencement of an Environmental Assessment for Jackpine Project, dated December 13, 2010: http://www.ceaa.gc.ca/050/document-eng.cfm?document=80018 95 Draft Agreement to Establish a Joint Panel for the Jackpine Mine Expansion Project Between the Minister of the Environment, Canada and the Energy Resources Conservation Board, Alberta: http://www.ceaa.gc.ca/050/documents/48347/48347E.pdf Terms of Reference for Jackpine Mine Expansion at p. 10 of Draft Agreement to Establish a Joint Panel for the Jackpine Mine Expansion Project Between the Minister of the Environment, Canada and the Energy Resources Conservation Board, Alberta: http://www.ceaa.gc.ca/050/documents/48347/48347E.pdf 96 Letter dated March 28, 2011 from Karin E. Buss, counsel, Ackroyd LLP, to Marie-France Therrien, Panel Manager, CEA Agency: http://www.ceaa.gc.ca/050/documents/49422/49422E.pdf 97 Letter dated April 6, 2011 from Cristina A. Scattolin, counsel, Janes Freedman Kyle Law Corporation, to Marie- France Therrien, Panel Manager, CEA Agency: http://www.ceaa.gc.ca/050/documents/49463/49463E.pdf 98 Agreement to Establish a Joint Panel for the Jackpine Mine Expansion Project Between the Minister of the Environment, Canada and the Energy Resources Conservation Board, Alberta: http://www.ceaa.gc.ca/050/documents/52084/52084E.pdf 99 Amended Agreement to Establish a Joint Review Panel for the Jackpine Mine Expansion Project (Complete Agreement including all changes from the Amendment): http://www.ceaa.gc.ca/050/documents/p59540/80742E.pdf.

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100 Milestones and Tasks, MPMO Tracker: http://www2.mpmo-bggp.gc.ca/MPTracker/project-projet- 03.aspx?pid=111&psid=3 . 101 News Release, Jackpine Mine Expansion Project and Pierre River Mine Project Federal Funding Allocated to Support Participation in the Environmental Assessment: http://www.ceaa.gc.ca/050/document- eng.cfm?document=50603 102 Participant Funding Program – Regular Funding Envelope Funding Review Committee‟s Report Allocation of Federal Funds for the Environmental Assessment for the Jackpine Mine Expansion and the Pierre River Mine Projects: http://www.ceaa.gc.ca/050/document-eng.cfm?document=50634 103 Participant Funding Program – Aboriginal Funding Envelope Funding Review Committee‟s Report Allocation of Federal Funds for the Environmental Assessment of the Jackpine Mine Expansion and the Pierre River Mine Projects: http://www.ceaa.gc.ca/050/document-eng.cfm?document=50633 104 Participant Funding Program – Aboriginal Funding Envelope Funding Review Committee‟s Report - Addendum Allocation of Federal Funds for the Environmental Assessment of the Jackpine Mine Expansion and Pierre River Mine Projects: http://www.ceaa.gc.ca/050/document-eng.cfm?document=52811 105 Letter dated July 22, 2011 from Shell Canada Limited with enclosed reports to Marie-France Therrien, Panel Secretariat, CEA Agency: http://www.ceaa.gc.ca/050/documents_staticpost/59540/51434/letter.pdf 106 Athabasca Chipewyan First Nation Integrated Knowledge and Land Use Report and Assessment for Shell Canada‟s Proposed Jackpine Mine Expansion and Pierre River Mine, April 20, 2011: http://www.ceaa.gc.ca/050/documents_staticpost/59540/51434/ACFN.pdf 107 Mikisew Cree Use of Lands and Resources in the Vicinity of the Proposed Shell - Jack Pine and Shell - Pierre River Operations, January 17, 2011: http://www.ceaa.gc.ca/050/documents_staticpost/59540/51434/MCFN.pdf 108 Letter dated September 30, 2011 from Don Crowe, Manager, Regulatory Approvals Heavy Oil Development, Shell Canada Energy, to Jill Adams, Panel Manager, Jackpine Mine Expansion Joint Review Panel, CEA Agency: http://www.ceaa.gc.ca/050/documents/53626/53626E.pdf 109 Letter dated May 27, 2011 from Donald Crowe, P. Eng, Manager, Regulatory Approvals, Heavy Oil Development to Robyn-Lynne Virtue – Joint Review Panel Manager, CEA Agency: http://www.ceaa.gc.ca/050/documents/53285/53285E.pdf 110 http://www.ceaa.gc.ca/050/document-eng.cfm?document=80896 111 Kirk - Athabasca Chipewyan Submissions are on the CEAA Registry. The NCQL is not. 112 The NCQL is brought on behalf of the Metis Nation of Alberta Region 1, Metis Nation of Alberta, Fort McMurray Metis Local 1935, Fort Chipewyan Local 125, Bill Loutitt, Frank LaCaille, Harvey Sykes, John Grant, Edward Cooper, Mke Guertin, Joe Hamelin, Kurtis Gerard, Fred (Jumbo Fraser), Barb Hermensen, Elder Ray Ladaouceur, Gabriel Bourke, Ernest Thacker and Guy Thacker 113 http://www.ceaa.gc.ca/050/documents/p59540/81971E.pdf The Attorney General is not listed among the parties to whom Fort McMurray #468 NCQL is addressed. 114 Letter dated September 30, 2011 from Gary Perkins, Legal Counsel for the Joint Review Panel, JRP Established to Review the Jackpine Mine Expansion Project, CEA Agency, to Athabasca Chipewyan First Nation (IRC) and Mikisew Cree First Nation (GIR): http://www.ceaa.gc.ca/050/documents/52453/52453E.pdf 115 Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43, [2010] 2 S.C.R. 650 at http://scc.lexum.org/en/2010/2010scc43/2010scc43.html. 116 Ibid: paragraph 55. 117 Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69, [2005] 3 S.C.R. 388 http://scc.lexum.org/en/2005/2005scc69/2005scc69.html at paragraphs 62 and 63: 62 In Haida Nation, the Court pursued the kinds of duties that may arise in pre- proof claim situations, and McLachlin C.J. used the concept of a spectrum to frame her analysis (at paras. 43-45):

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At one end of the spectrum lie cases where the claim to title is weak, the Aboriginal right limited, or the potential for infringement minor. In such cases, the only duty on the Crown may be to give notice, disclose information, and discuss any issues raised in response to the notice. . . .

At the other end of the spectrum lie cases where a strong prima facie case for the claim is established, the right and potential infringement is of high significance to the Aboriginal peoples, and the risk of non-compensable damage is high. In such cases deep consultation, aimed at finding a satisfactory interim solution, may be required. While precise requirements will vary with the circumstances, the consultation required at this stage may entail the opportunity to make submissions for consideration, formal participation in the decision-making process, and provision of written reasons to show that Aboriginal concerns were considered and to reveal the impact they had on the decision. This list is neither exhaustive, nor mandatory for every case. . . .

Between these two extremes of the spectrum just described, will lie other situations. Every case must be approached individually. Each must also be approached flexibly, since the level of consultation required may change as the process goes on and new information comes to light. The controlling question in all situations is what is required to maintain the honour of the Crown and to effect reconciliation between the Crown and the Aboriginal peoples with respect to the interests at stake. . . . [Emphasis added.]

63 The determination of the content of the duty to consult will, as Haida suggests, be governed by the context. 118 MiningWatch Canada v. Canada (Fisheries and Oceans), 2010 SCC 2, [2010] 1 S.C.R. 6 http://scc.lexum.org/en/2010/2010scc2/2010scc2.html at paragraph 14: [14] The CEAA is, in the words of its formal title, “[a]n Act to establish a federal environmental assessment process”. It provides a process for integrating environmental considerations into planning and decision making (CEAA, Preamble; Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3, at p. 71). 119 Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3 at 71. 120 http://environment.alberta.ca/01531.html. 121 Approvals and Registrations Procedure Regulation, Alta Reg 113/1993 http://canlii.ca/t/jgls; Activities Designation Regulation, Alta Reg 276/2003 http://canlii.ca/t/l2zz; and Environmental Protection and Enhancement (Miscellaneous) Regulation, Alta Reg 118/1993 http://canlii.ca/t/lftv. 122 Letter dated October 3, 2011 from Jim Ellis, Deputy Minister of Alberta Environment to Paul Boothe, Deputy Minister, Environment Canada: http://www.ceaa.gc.ca/050/documents/53609/53609E.pdf 123 http://www.ercb.ca/directives/Directive023.pdf 124 Alberta’s Environmental Assessment Process Updated February 2010 page 4 http://environment.gov.ab.ca/info/library/6964.pdf 125 Nicky Vlavianos, The Legislative and Regulatory Framework for Oil Sands Development in Alberta: A Detailed Review and Analysis (CIRL Occasional Paper # 21, 2007) at page 48: https://dspace.ucalgary.ca/bitstream/1880/47188/1/OP21Oilsands.pdf. 126 Environmental Appeal Board, Mandate and Roles document, at http://www.eab.gov.ab.ca/media/MandateRoles.pdf.

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127 Canadian Environmental Assessment Act, 2012 (S.C. 2012, c. 19, s. 52), s. 43, at http://laws- lois.justice.gc.ca/eng/acts/C-15.21/FullText.html. 128 Letter dated September 30, 2011 from Gary Perkins, Legal Counsel for the Joint Review Panel, JRP Established to Review the Jackpine Mine Expansion Project, CEA Agency, to Athabasca Chipewyan First Nation (IRC) and Mikisew Cree First Nation (GIR): http://www.ceaa.gc.ca/050/documents/52453/52453E.pdf 129 http://canlii.ca/en/ca/fct/doc/2009/2009fc484/2009fc484.html. 130 http://www.ceaa.gc.ca/050/documents/p59540/81960E.pdf.