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From: Rick Hendriks
Hi Courtney and Brian,
Please confirm receipt of the three emails.
Attached are our comments on the BC Hydro responses to the JRP IRs. This document also references some concerns raised by reviewers in their written submissions. Please post this attached document to the registry.
Here are the written submissions I will be sending you in a series of separate emails (the numbering is internal):
1 - Treaty Rights and Reconciliation 2a - Fish and Fish Habitat 2b - Vegetation and Cumulative Effects 2c - Wildlife 2d - Current Use and Cultural Effects 3 - T8FNs Perspectives on Cumulative Effects 5a - Need and Alternatives (by November 29) 5b - Alternative Means (by November 29) 8 - Meaningful Resource Management 9 - Sustainable Economic Development 10 - Access to Health and Social Services and Physical Infrastructure
Rick Hendriks Director Camerado Energy Consulting Inc.
@ 2013 Treaty 8 Tribal Association
SITE C CLEAN ENERGY PROJECT JRP Information Requests November 25, 2013 SPECIFIC COMMENTS ON BC HYDRO RESPONSES
This document identifies T8FNs’ specific comments, pursuant to our review of the following: • The Joint Review Panel’s Request for Additional Information to BC Hydro, dated September 6, 2013; • The Joint Review Panel’s Request for Additional Information to BC Hydro, dated September 20, 2013; • The Joint Review Panel’s Request for Additional Information to BC Hydro, dated October 16, 2013; and • The Joint Review Panel’s Request for Additional Information to BC Hydro, dated November 7, 2013.
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BC Hydro JRP IR T8FNs Comments Response #
JRP-003 BC Hydro Response Based on the above, quickly ascending trees are expected to be a very low probability occurrence, and thus were not specifically identified as a hazard to navigation in the assessment. Comments Limited information is provided to substantiate this conclusion. The T8FNs estimated the frequency of quickly ascending trees (locally referred to as “tree missiles”) based on the following: § A total merchantable volume of 914,229 cubic metres (Volume 1 Appendix A, p.35) § A total unharvested merchantable timber that is 5% of 914,229 = 45,711 cubic metres § An Average merchantable tree volume given by (Volume 1 Appendix A, Appendix C, Table C-1): o mean cross sectional area * average tree height = o pi{[(0.15)(0.15)+(0.05)(0.05)]/2}*15 m= 0.58875 m3 § Total number of unharvested merchantable trees = 45,711/0.58875 = 76,641 There are a number of additional factors that would determine the actual number of potential “tree missiles”: § the number of smaller, nonmerchantable trees left within the reservoir, which would increase the number § some submerged trees would become water-logged and not come to the surface of the reservoir, decreasing the number § the actual size of the merchantable trees could be larger than estimated above, reducing the number § some trees could remain submerged for a longer period, reducing the number in the short-term but extending the hazard over the longer term Presuming that the number of non-merchantable trees with the potential to rise quickly to the surface is equal to the number of merchantable trees, and only 50% of the trees rise to the surface over the first five years following inundation, this amounts to 42 trees per day within the entire reservoir over the first five years, likely decreasing thereafter.
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Though the number of trees is modest given the size of the reservoir, it is not zero, and the hazard posed by these trees cannot simply be ignored. In addition to the safety hazard, the number of submerged trees coming to the surface could influence the choices made by recreational or subsistence fishers with respect to fishing in the reservoir depending on the perception of this hazard. In addition to concerns about fishing during the open water season due to the threat of tree missiles, the T8FNs are also concerned about the potential for tree missiles to affect ice formation for several years following inundation. This could pose a potential hazard for ice fishers as well as for wildlife attempting to cross the reservoir during winter.
JRP-004 BC Hydro Response In its response to ab_0001_029, BC Hydro indicated that: BC Hydro is aware of two projects in B.C. where drawdowns were required for channel repairs: the Arrow Lakes Generating Station (ALGS) and Kootenay Canal. Comments The duration of these and other similar drawdowns would also assist in understanding the potential environmental effects of this kind of event, and not just the effects on navigation.
JRP-009A BC Hydro Response Cascading failures of the upstream dams were not factored into the assessment of accidents and malfunctions of the Project provided in the EIS as amended, as this was not required by the EIS Guidelines (EISG Section 23.2) and BC Hydro treats information about the effects of a failure of its existing dams as sensitive information and restricts circulation of such information for security reasons. In footnote 1, the Proponent goes on to indicate that: The EIS Guidelines states that the EIS that is made publically available for comment should not contain information that is sensitive or information that is likely to endanger life or security through its disclosure (EISG Section 1.2). Comments The T8FNs are not satisfied with this response. We are concerned that the Proponent is actually withholding or failing to properly develop information about the effects of the Project that could endanger the life or security of T8FNs members and of others living within the Peace River valley and its
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tributaries, and that is essential to understanding the implications of the proposed Project. The cumulative effects resulting from the creation of the Site C reservoir resulting from failure of the WAC Bennett Dam, or even its potential failure, are an important consideration for the T8FNs. Section 23.1 of the EIS Guidelines requires BC Hydro to address, and BC Hydro has already indicated in the EIS Guidelines that it will address, the effects of the environment on the Project resulting from natural hazards, including flooding and seismic activity. The fact that the watershed directly upstream of the proposed Project happens to have two existing dams is not a reason for avoiding the assessment of the effects of the environment on the Project resulting from flooding or seismic activity. The reality is that flooding or seismic activity upstream of the Site C dam could result in failure of the WAC Bennett Dam, with consequential effects for the proposed Project, including exacerbating the effects of flooding upstream and downstream of the proposed Site C dam. As noted in our comments on the EIS dated May 31, 2013, specifically our comments on the Technical Memo – Dam Safety, we previously provided comments and requests for information to BC Hydro in a memo dated December 3, 2012 (Attached as Appendix A). Further to our comments of May 31, the T8FNs have now completed our review of the February 6, 2013 response from BC Hydro to our memo of December 3 and are not satisfied with the information and analysis provided. In our memo of December 3, 2012, we estimated that as a result of failure of the WAC Bennett Dam: “the increased flooding at the HRFN reserve could potentially be in excess of 10 metres in depth, and could extend across the entire HRFN reserve lands.” This estimate was conceptual and based on very limited information, including inundation maps at a coarse scale consisting of 15 metre contour lines. In its response of February 6, 2013, BC Hydro noted the following: The estimated peak water level in the Halfway River would increase from elevation 532.8m (without Site C) to elevation 542.2m (with Site C) for the WAC Bennett Dam breach during probable maximum flood scenario. The attached drawing shows the position of elevation 542.2m in the Halfway River. The T8FNs are not at liberty to submit the referenced drawing, which Hydro has deemed to be “confidential”. However, it is clear that this estimated peak water level in the Halfway River is not the result of an updated dam breach analysis at the WAC Bennett Dam, which has not yet been completed. An “estimate” is not sufficient considering the potential implications for the Halfway River First Nation (HRFN), which could be brought into the inundation zone resulting from a failure of the WAC Bennett Dam as a result of the construction of the Site C reservoir. As noted in our memo, the effects of extreme flooding and earthquake natural hazards on the Site C reservoir,
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vis-a-vis failure of the WAC Bennett Dam, raise several additional issues for HRFN, including: • lack of consultation or even any mention of this matter by BC Hydro or the Crown to HRFN to date; • increased emergency preparedness capacity required in HRFN; • insurance and liability implications for the HRFN; and • effects on community well-being as a result of being effectively “transplanted” into the dam failure flood zone downstream of the WAC Bennett Dam. Our memo went on to note that: in addition to the HRFN reserve lands, there are other areas that could be similarly affected depending on the findings of updated dam breach analyses, including: • other reaches of the Halfway River; • lands under consideration as Treaty Land Entitlement lands by the T8FNs; • other tributaries downstream of Peace Canyon Dam, but upstream of the proposed Site C dam, including the Moberly River, Cache Creek and Farrell Creek; • other areas, buildings and residences within Hudson’s Hope and along the shore of the Peace River not inundated by failure of WAC Bennett Dam or Peace Canyon Dam under current conditions but inundated as a result of the extension of the flooded area due to development of the Site C reservoir; and • other areas, including in Old Fort and Taylor, not inundated by failure of WAC Bennett Dam or Peace Canyon Dam under current conditions but inundated as a result of the additional water made available due to cascade failure of the Site C reservoir. The T8FNs remain of the view that an assessment of the cumulative effects of cascade dam failure is a requirement of this assessment and is necessary to fully understand the implications of the proposed Project for the T8FNs and for others living in the Peace River valley in the vicinity of the propose Site C reservoir and immediately downstream.
JRP-009B Comments In its response, the Proponent entirely omits cumulative effects that would occur upstream of the Site C dam as a result of creation of the Site C reservoir in the event of the failure of one of the upstream dams.
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The Proponent has knowledge of these cumulative effects, yet makes no mention of them in its response. Therefore, this response is incomplete. The differences in the extent of inundation upstream of the proposed Site C dam location as a result of the failure of the WAC Bennett Dam need to be provided in response to this question. Please see the comments directly above concerning JRP-09A. In its response concerning the downstream effects of failure of the Peace Canyon Dam, BC Hydro indicates the following: For a sunny day failure flows from Site C could be managed so that downstream peak flows and water levels with Site C would be lower than without Site C. The CDA Guidelines require evaluation of both the sunny-day failure and the flood-induced failure. The evaluation should address initial hydrologic conditions for the following: • Sunny-day failure – This is a sudden dam failure that occurs during normal operations. It may be caused by internal erosion, piping, earthquakes, mis-operation leading to overtopping, or another event • Flood-induced failure – This is a dam failure resulting from a natural flood of a magnitude that is greater than what the dam can safely pass The response to the Panel’s information request needs to address both the sunny-day failure and the flood-induced failure for both the WAC Bennett and Peace Canyon Dams since the former could result from a seismicity hazard and the latter from a flooding hazard, which are required to be addressed by S.23.1 of the EIS Guidelines.
JRP-09 Supplementary Comments Information In its response, the Proponent quotes various section of the CDA Guidelines and then concludes: The W.A.C. Bennett Dam and the Peace Canyon dam are both located upstream of the Project and therefore a cascading dam failure is not required to establish the consequences of a failure of the Project’s dam. The Proponent’s point is irrelevant to the concerns being raised in JRP-09. It is a fact that the construction of the Site C dam and its associated reservoir change the consequences, including the environmental effects, of a failure of one of the upstream facilities, pursuant to flooding or a seismic event, which require assessment under the EIS Guidelines. These potential additional environmental effects result from the development of Site C, and therefore require assessment in accordance with the
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EIS Guidelines as part of this environmental assessment.
JRP-010 BC Hydro Response
The CO2 emissions associated with the Clean Generation Portfolio arise from the municipal solid waste resource. The difference in GHG emissions intensity between the Site C portfolio and the alternative portfolios would represent the avoided GHG emissions within BC Hydro’s service area. Comments This solid waste resource, as indicated in Table 14 of the Evidentiary Update, consists of two MSW facilities totalling 37 MW of 1244 MW of capacity and 312 GWh of 5100 GWh of energy. The capacity provided by these facilities exceeds the 1100 MW of Site C and the energy the facilities provide could be provided by wind facilities at a moderately higher UEC of ~$135/MWh. In other words, removing the MSW facilities from the Clean Portfolio has very minor implications for the cost of that portfolio, while lowering the emissions for the Clean Portfolio essentially to zero, erasing any potential benefit from the proposed Project. BC Hydro Response To provide an approximate estimate of the avoided GHG emissions in the entire western grid over the operational period of the Project, BC Hydro has estimated the generation from the Project delivered in BC and in the rest of the WECC for a 100-year evaluation period. Comments The Proponent appears to have performed a straight-line extrapolation, presuming that the projects in the Clean Portfolio and Clean + Thermal Portfolio are simply renewed, without any replacement by non-GHG sources or technology improvements. This approach ignores a fundamental advantage of the portfolios without Site C, namely that they contain flexibility not offered by Site C. There is no basis for assuming that the resources in the alternative portfolios will be renewed at all, or that they will be renewed without technology improvements. The untitled table on p.29 of the response contains what appear to be the Clean Portfolio emissions minus the Site C emissions (without construction emissions). The latter are 11.4 (really 13.3) tonnes CO2eq/GWh (Table 15.8 of the EIS), or 5.4 million tonnes (i.e. 11.4 * 476,300) over the 100-year period. If the difference (avoided emissions) is 19 million tonnes as shown in the table, then the clean portfolio emissions are 24.4 million tonnes, or 51.3 tonnes/GWh. This does not match with the text of the
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response, which indicates that the Clean Portfolio emissions are 39 tonnes CO2eq/GWh. Overall, the response is confusing and misleading. There are no appreciable GHG emissions avoided by proceeding with the proposed Project as compared to proceeding with the Clean Portfolio.
JRP-011 SEE ADDITIONAL COMMENTS IN SECTION 3.1 OF NORTH/SOUTH CONSULTANTS WRITTEN SUBMISSION TO THE JOINT REVIEW PANEL DATED NOVEMBER 25, 2013
BC Hydro Response An example of this type of comprehensive, strategic, long-term approach to habitat compensation is described in the attached Coastal Fish and Wildlife Compensation Program – Campbell River Watershed Plan. The Watershed Plan outlines the partners, the priorities, objectives and measures, the effects of the hydroelectric facilities, and monitoring plans. Compensation in the Campbell watershed includes several successful habitat improvement projects such as Quinsam River Fish Passage, Campbell River Gravel Enhancement, and Salmon River Side Channel work, which have resulted in increased fish production and supported objectives for conservation. Comments The T8FNs question the relevance of the Campbell River compensation program due to its focus on salmonids. Hydro’s response suggests that is has other examples of similar programs. Provision of examples of compensation planning in arctic watersheds similar to the Peace River where anadromous salmonid species are not present is important to demonstrating the potential effectiveness of the compensation measures. Also, it is unclear whether the “increased fish production” occurred for targeted species or for fish populations more generally. As indicated previously in comments from several Aboriginal Groups during this environmental assessment, the maintenance of populations of preferred species is a key concern. With respect to measures of success more generally, the Proponent indicates the following: The productivity of fish and fish habitat would be measured using appropriate biological parameters. Similar biological measures are described in the Fish Passage Management Plan (Volume 2 Appendix Q). The reference is vague since Appendix Q contains four reports. However, it appears that the Proponent may be referring to the following taken from the Executive Summary of Appendix Q3:
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These mitigation alternatives are compared to predictions for a post-Project scenario where no passage mitigation actions are implemented. Where feasible, performance measures included population abundance, species distribution, population structure, size and age distribution, angler-days, and fish mortality. (our underlining) It remains unclear from the BC Hydro’s response whether the proposed compensation measures would actually be effective in terms of these performance measures.
JRP-012 SEE ADDITIONAL COMMENTS IN SECTION 3.1 OF NORTH/SOUTH CONSULTANTS WRITTEN SUBMISSION TO THE JOINT REVIEW PANEL DATED NOVEMBER 25, 2013
Comments BC Hydro has provided an explanation of sedimentation and siltation not an “assessment of the effects of sedimentation and siltation on fish and fish habitat”, as requested by the Panel. Please answer the question.
JRP-013 SEE ADDITIONAL COMMENTS IN SECTION 3.3.2 OF FIRELIGHT GROUP’S WRITTEN SUBMISSION TO THE JOINT REVIEW PANEL DATED NOVEMBER 25, 2013
JRP-015 Comments In determining the “potential for Class 1 sites to occur around the additional project components”, the T8FNs note that the Proponent has not yet determined the potential for Class 1 sites to occur within the erosion zone of the reservoir. On August 7, 2012, the Proponent indicated the following in a memo to the T8FNs: Fieldwork for the Heritage Program is being carried out in areas between the reservoir and the 5-year beach line. As defined in the Clearing Plan presentation made by Paul Veltmeyer to T8TA on June 13, 2012, the 5-year beach line is the projected erosion line that would occur within a 5 to 10 year period factoring in terrain type, soils, wind and wave action. The 5-year beach line, which varies in elevation from 461.8 to 525, is considered the upper bound of clearing for the reservoir. However, erosion of the reservoir shorelines would occur for several decades following inundation. In response to ab_0001-204 to provide a map or series of maps illustrating both the 5-year and 100-year beach lines, the Proponent provided the following response: Shoreline geology and predicted shoreline erosion distances for the 100-year ‘beach line’
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are shown on cross sections contained in EIS Volume 2, Appendix B, Part 2 Preliminary Reservoir Impact Lines Appendix A. Additional information on shoreline geology is presented in fence diagrams contained in EIS Volume 2, Appendix B, Part 2 Preliminary Reservoir Impact Lines. Approximate 5-year beach lines can be interpolated for each of the cross sections based on the geological unit present at the maximum normal reservoir level shown on the cross section and fence diagrams and the associated erosion distances presented in EIS Volume 2 Table 11.2.2. Presuming a total reservoir shoreline length of 200 km, an estimate can be made of the total area between the 5-year and 100-year beach lines for which the potential for Class 1 sites has yet to be made by the Proponent. A conservative estimate of this area can be determined for each soil type indicated in Table 11.2.2 based on the following calculation: § (100-year beach line erosion distance – 5-year baseline erosion distance)*percentage of shoreline length*total shoreline length) § ISC – 368,000 m2 § OC – 1,860,000 m2 § BC – 420,000 m2 § SG – 1,224,000 m2 § SST – 0 m2 § SSH – 22,000 m2 § SH – 32,000 m2 § TOTAL – 3,926,000 m2 or 392.6 ha The above estimate is considered conservative as it presumes that the maximum 100-year beach line will occur in all instances. This is very large area, located along what has been an important travel route for centuries and that very likely contains many important artifacts and sites yet to be identified. While we appreciate the efforts of the Panel to seek information concerning the potential for Class 1 sites around additional project components, that potential is miniscule compared to the potential for Class 1 sites in unassessed areas of the erosion zone surrounding the primary project component, namely the reservoir. Understanding the magnitude of the project-related impacts to heritage values requires completion of an assessment of the entirety of the area know to be affected by the proposed Project.
JRP-017 BC Hydro Response
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As a power generation project, the Project is consistent with the heritage vision for the Peace River. It is also consistent with the provincial direction that management of the Peace River should be consistent with the Fort St. John and Dawson Creek Land and Resource Management Plans (LRMPs). The LRMPs contemplated the Order-In-Council Flood Reserve and the associated potential future development of a hydroelectric reservoir, and acknowledged the priority of the development of a hydroelectric dam at Site C in its recommendation for designation of a new protected area. Comments The presumed consistency of the Project with the heritage vision for the Peace River does not reflect First Nation values but namely those of the Proponent. In addition, there was no consultation with local First Nations in the development of the LRMPs. The Fort St. John LRMP terminated in 2007 and has not been renewed.
JRP-018 SEE ADDITIONAL COMMENTS IN SECTION 3.3.1 AND 3.3.2 OF FIRELIGHT GROUP’S WRITTEN SUBMISSION TO THE JOINT REVIEW PANEL DATED NOVEMBER 25, 2013
JRP-019 BC Hydro Response It is possible that, following inundation and the establishment of new access within the reservoir, that old patterns of Aboriginal use may be reconstituted at new confluences of the Halfway River (Attachie) and the Peace River and Cache Creek (Bear Flats) with the reservoir, which will occur farther upstream from their present confluences with the Peace. However, the success of such an adaptation would require the return of conditions supporting both current use activities and conditions supporting broader cultural aims (teaching, ceremony, and other cultural uses). Comments The above statement is inaccurate and speculative. By inaccurately describing patterns of current land use as “old”, the Proponent desires to diminish the importance of this land use during this environmental assessment. Secondly, the irrevocable changes to the patterns of Aboriginal land use following the development of the Proponent’s own projects on the Peace River and elsewhere, not to mention experience across the boreal regions of Canada, suggest a very different outcome than that speculated by the Proponent. The probability that “old (sic) patterns of Aboriginal use may be reconstituted” needs to be assumed to be nil unless the Proponent can provide concrete evidence to the contrary. SEE ADDITIONAL COMMENTS IN SECTION 3.3.1 AND 3.3.2 OF FIRELIGHT GROUP’S WRITTEN
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SUBMISSION TO THE JOINT REVIEW PANEL DATED NOVEMBER 25, 2013
JRP-020A Comments In its response, the Proponent provides no quantitative information to support its conclusions respecting the potential effects of the proposed Project on mental health and social service agencies in the region. The Proponent has not adequately answered the question. With respect to mental health services, the Proponent notes the following: The demand for mental health, drug addiction and social services would likely increase commensurate with the regional population increase. The T8FNs remain concerned that there may be greater demand for these services than that commensurate with regional population increases, as a result of the short-term, high-level of economic impact associated with the proposed Project.
JRP-020B Comments In its response, the Proponent rewrites the question, disaggregating on the basis of physical and mental health, rather than on the basis of the aboriginal and non-aboriginal populations as requested by the Panel. The Proponent has not answered the question. The Proponent notes that: Although the EIS Guidelines do not require an assessment of the incremental effects of the Project on mental health and social issues… The T8FNs are unclear as to how BC Hydro has reached this conclusion respecting the EIS Guidelines. Is the proponent implying that mental health is not meant to be included in either § the “social” or “health” effects identified in the Environmental Assessment Act; or § section 5.(1)(c) of CEAA 2012? The T8FNs are not aware of any reading of the above legislation that specifically excludes mental health of Aboriginal peoples from the environmental assessment process. Regardless of the veracity of the Proponent’s views, section 20.6 of the EIS Guidelines reads as follows: The EIS will • Identify interests that Aboriginal groups may have with respect to potential social, economic, health, and physical and cultural heritage effects of the Project;
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• Describe how the potential effects on those interests have been considered in the assessment of the potential adverse effects of the Project on VCs or otherwise; The T8FNs and other Aboriginal groups have raised concerns about the mental health (or “psychological health” or “psycho-social” health) effects of the Project for decades. Some of these concerns are recorded in Volume 1, Section 9, Appendix H Aboriginal Issues, Concerns, and Interests Tracking Table (Revision 1 - July 19, 2013). The EIS as Amended and the supplementary information provided in the response to JRP-20 do not provide an assessment of the potential mental health effects of the proposed Project for Aboriginal people. As with the response to JRP-20A, the Proponent notes the following: the frequency of mental health and social issues currently experienced in the regional population could be expected to increase at a rate commensurate with the rate of population growth. The T8FNs remain concerned that there may be higher frequency of mental health and social issues among Aboriginal populations, as a result of the short-term, high-level of economic impact associated with the proposed Project.
JRP-021 BC Hydro Response Section 7.1.3 of the EIS as amended to show the effect of the portfolios on ratepayer costs Comments However, as is pointed out in Section 7.1.3, this is based on the “block” analysis: Figure 7.2 provides a directional depiction of the expected annual costs to ratepayers of the Project and a comparable block of either clean or clean plus thermal alternative resources. The block analysis is not the appropriate comparison for determining the relative merits of Site C versus the alternatives with respect to implications for the Province’s credit rating. In the event that Site C does not proceed, BC Hydro will not proceed with development of an equivalent block of 5100 GWh and 1100 MW in F2024 but will proceed in response to the actual demand forecast. Respecting the apparent lack of relationship between taxpayer supported and self-supported debt, BC Hydro downplays the fact that the corporation pays a substantial dividend to the Province. This payment
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recently changed, however, as a result of the high levels of BC Hydro debt ($18.8 billion in 2015/16): While BC Hydro normally provides an annual dividend to the province equal to 85 per cent of its net income, the amount of the dividends are constrained by a requirement that the corporation maintain an 80:20 debt to equity ratio. As a result of this constraint, the annual dividend payment is forecast to average $245 million – or approximately 40 per cent of average net income – over the next three years.1 In essence, the Province will receive $275 million per year less each of the next three years, and presumably thereafter until the 80:20 debt to equity ratio is re-established. In its response, the Proponent does not discuss or analyse the reality that Site C involves the highest debt financing of the any of the alternative portfolios considered. Will the debt financing for Site C result in a continuation or an increase in the size of the dividend clawed back from the Province? How does the proposed Project compare with the alternatives in this respect? These important questions are not addressed in the Proponent’s response.
JRP-028 BC Hydro Response A population level or species specific environmental assessment was not deemed to be an appropriate methodology during the consultative process for conducting the assessment of the Site C project. Comments BC Hydro is neglecting to note that there was not consensus on this view. This lack of consensus is reflected in the comments and questions of the T8FNs throughout the consultation with First Nations. As an example, we note the following question submitted by the T8FNs in June 2009 and the response from
1 Government of BC. 2013. Budget and Fiscal Plan – 2013/14 to 2015/16, p.14.
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BC Hydro: 5. What does BCH know about the impacts the reservoir will have on the calving areas on the islands that will be flooded? Has BCH studied what will happen to the wildlife populations if their calving areas are inundated? 6. What does BCH know about the impacts the reservoir will have on deer, moose, elk and caribou and use the flood zone? Combined answer to question #5 and #6: Caribou will not be impacted as their habitat or movements are not known to occur in the Peace River Valley area in the vicinity of the project. An updated estimate of impact to moose, deer or elk (including calving areas) has not been developed, however historical estimates for moose and deer in relation to regional population levels are thought to be relevant today based on comparison of historic and recent population estimates. If the Project proceeds BCH would update the assessment of the project on moose, deer and elk in relation to regional populations for an environmental assessment. (our underlining) Historically the environmental assessment for Site C estimated a reduction in the regional population of 125 to 250 moose and 50 to 250 mule deer due to loss of habitat (including calving habitat). In 1991 wildlife studies estimated a reduction to regional populations of 96 moose, 214 mule deer, and 8 elk due to habitat loss, again including lost calving habitat. … It is difficult to read the Proponent’s response to our questions and not be left with the impression that a species-specific population level assessment would be undertaken similar to previous assessments in order to update the estimates of the effects of the Project on species-specific populations. BC Hydro Response Data in the table below summarises Trumpeter Swan observations and ecological use associated with each observation. Early spring waterfowl surveys in 2013 did not detect any Trumpeter Swan in March. Observations in April and June 2013 are included in the table below. Comments With respect to the Trumpeter Swan, the data BC Hydro has collected does not give an accurate
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representation of the habitat use of this species on the Peace River. Trumpeter Swans reside in the open water of the Peace River during the winter months within the project area. This is known to a variety of agencies, stakeholders and First Nations in the area. BC Hydro’s survey months excluded the winter, and therefore there is no data concerning the overwintering use of the river by Trumpeter Swans. To address this deficiency, BC Hydro needs to conduct a winter survey of Trumpeter Swans to understand and measure the use of the Peace River within the project area as over wintering habitat. Without this information, it is not possible to determine the impacts of the proposed Project on the overwintering population of Trumpeter Swans in the Peace River valley, including the impacts of the freezing of the Site C reservoir during operations.
JRP-030A-B SEE ADDITIONAL COMMENTS IN SECTION 2.4 OF DR. ANNETTE LUTTERMAN’S WRITTEN SUBMISSION TO THE JOINT REVIEW PANEL DATED NOVEMBER 25, 2013
Comments The Proponent has not answered the question. The Proponent has provided no details concerning how the mitigation is intended to work. This lack of detail likely results from the fact that the proposed mitigation strategy remains conceptual, detailed design has not yet occurred, and associated costs have not yet been determined. Without specifics and details outlining the practical steps involved in developing and implementing these mitigation measures, it is not possible to comment on whether they are adequate or effective. In particular, we note the difference between the response to question 30B and question 32B, where in the latter instance the Proponent provides actual design details concerning the proposed mitigation measures.
JRP-033 Comments The Proponent has not answered the question. BC Hydro States: While habitat suitability modeling has been conducted for certain species, it is not required by Section 12.2.4 of the EIS Guidelines. We note, as does BC Hydro, that habitat suitability modeling has been carried out for other species.
JRP-36B BC Hydro Response As described in EIS Section 11.2.3.14, BC Hydro will regularly monitor shoreline
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conditions, erosion rates and landslide activity. The results of the monitoring will be used to facilitate a review and update of the impact lines following approximately five years of reservoir operations. As described in Part A of this response, wildlife in the valley currently experience natural slope erosion and failure conditions. BC Hydro has not proposed specific measures for the mitigation of slope erosion and failure in the Wildlife Management Plan. Comments Monitoring is not mitigation. The development of the reservoir will initiate increased erosion frequency and will change the failure conditions along much, if not all, of the reservoir perimeter, as detailed in section 11.2.3 of the EIS. While it is true that wildlife do currently experience slope erosion and failure conditions, these conditions will not be similar to those likely to occur following inundation. BC Hydro only needs to look at the shoreline of its existing upstream reservoirs to see what is occurring in terms of ongoing slope instability and effects on wildlife more than 40 years following inundation. The lack of understanding of how proposed mitigation would actually benefit wildlife needs to be considered in determining the significance of residual effects of the proposed Project for wildlife.
JRP-037 SEE ADDITIONAL COMMENTS IN SECTION 3.2 OF DR. SCOTT MCNAY’S WRITTEN SUBMISSION TO THE JOINT REVIEW PANEL DATED NOVEMBER 25, 2013
BC Hydro Response The EIS takes into account the potential changes to direct and indirect mortality during reservoir filling in the following ways: • … Comments The T8FNs are concerned that the potential for wildlife mortality due to insufficient ice cover on the reservoir has not been adequately considered. Figure 11.7.7 indicates the predicted ice cover and thickness in the Site C reservoir, and Section 11.7.3.3.4 of the EIS notes the following: During most of the cold periods, the reservoir ice cover extended upstream past the Halfway River (about 60% coverage) and, during the coldest days, it reached Lynx Creek (about 90% coverage). Cycles of formation and melting occurred a couple of times during
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most winters, depending on the air temperature and wind conditions. A typical amount of ice melt in one event would be 20% of the reservoir area. This continual change in the thickness and location of ice on the reservoir presents ideal conditions for wildlife to fall through the ice during periods where air temperatures could also be very cold. The potential for mortality resulting from these conditions needs to be assessed on a species by species basis.
JRP-040 Comments In reviewing the Proponent’s response, it does not appear that any bird surveys occurred during the winter months to determine the importance of the open water Peace River for over wintering habitat. This is a data gap that contradicts the Proponent’s emphasis on using winter habitat analysis to determine effects.
JRP-043 / 043S SEE ADDITIONAL COMMENTS IN SECTION 3.2 OF DR. SCOTT MCNAY’S WRITTEN SUBMISSION TO THE JOINT REVIEW PANEL DATED NOVEMBER 25, 2013
BC Hydro Response A habitat-based methodology has been used successfully on a number of large projects… Estimates of population sizes are impractical, particularly for large numbers of species over a large area, because of the input data requirements involved, and often vary widely. Comments The Proponent’s definition of “successfully” is unclear, and its reference to these other projects is equally
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unclear. We note, as one example, in the case of the New Prosperity Project, the environmental assessment provided very precise estimates of the populations of species important to the Tsilquotin: The estimated rainbow trout population was 164 945, with approximately 85 000 residing in Fish Lake (Teztan Biny), 5 000 in Little Fish Lake (Y’anah Biny) and approximately 73 600 individuals utilizing available mainstream and tributary habitats.2 The Project area is within the South Chilcotin Ranges Grizzly Bear Population Unit which is classified as threatened in the province (BC MFLNRO, 2012). The current population estimate is 203 animals, with a density ranging from 10 to 20 bears per 1,000 km2 (BC MFLNRO, 2012).3 The Proponent has been aware of concerns from Aboriginal groups respecting species populations for many years now. Concerns of this nature were also reported to BC Hydro in the T8FNs Site C Project: Initial Impact Pathways Identification Report, which was included as Appendix B7 of Volume 3 of the EIS. Specifically, the following concerns were detailed in the summary table at the end of this Report: § #6 – fish populations – meaningful practice of Treaty 8 rights: o general concern about effects on fish populations; concerns about fish mortality in the Halfway River; "could lose some fisheries"; arctic grayling numbers will be impacted negatively by the reservoir system extending into the Moberly and Halfway Rivers; increase in population of some fish species has the potential to increase sport fishing, promote charter fishing tours, and create imbalance to the natural functioning of the ecosystem; the turbines will physically kill the larger fish and with oxygenation loading from the turbines it is expected fish mortality will exceed 17% of the fish that pass through the turbines; concern about which fish species would be negatively impacted and if there was enough habitat to maintain the fish; concerns
2 Report of the Federal Review Panel, October 31, 2013. New Prosperity Gold-Copper Mine Project, Taseko Mines, British Columbia, p.91. 3 Taseko Mines Limited. September 2012. New Prosperity Gold-Copper Mine Project Environmental Impact Statement, Section 2.6, p.349.
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about spilling at Williston with respect to fish entrainment and mortality in the current system and what would happen to fish if Site C had a spill event; § #101 – wildlife populations – meaningful practice of Treaty 8 rights: o the Site C dam would further diminish wildlife populations, including rabbits, and birds; concern that wildlife population effects need to be considered in the context of First Nation hunting; inundation will lead to drowning of animals; there will be an increase in animal mortality trying to cross reservoir; concern about effects of Site C on bear population; beaver and other furbearers will not be able to live in the reservoir; increased morbidity in animals either/or reducing willingness to harvest in the area (Dane-zaa values of letting area heal) or increased perception of poor health equaling contaminated country food; The Proponent takes the narrowest possible reading of the section 12.2.4 of the EIS Guidelines, which reads as follows: The potential to adversely affect wildlife resources will be assessed by taking into account the potential for the Project to result in changes to the following key aspects: • Permanent and temporary habitat alteration and fragmentation; • Disturbance and/or displacement; and • Potential for direct and indirect mortality to individuals. However, section 20.6 Other Interests of Aboriginal Groups in the EIS Guidelines notes that: The EIS will: • Identify interests that Aboriginal groups may have with respect to potential social, economic, health, and physical and cultural heritage effects of the Project; • Describe how the potential effects on those interests have been considered in the assessment of the potential adverse effects of the Project on VCs or otherwise; The T8FNs are of the view that concerns about the population-level effects of the proposed Project, which have been clearly and extensively identified to the Proponent by the T8FNs, have not been adequately considered in the assessment of the potential adverse effects of the Project. The fact that other environmental assessments, including those listed by the Proponent as using a “habitat-based methodology” are also able to produce estimates of key species populations suggests that there is no inherent barrier to producing such estimates, other than an unwillingness to do so on the part of this Proponent.
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JRP-049A BC Hydro Response As a species, beaver is adapted to habitats subject to frequent disturbance. The shoreline of the reservoir will have natural conditions conducive to beavers. Beavers would be expected to recolonize naturally without additional mitigation. Comments The T8FNs are not familiar with any literature demonstrating that beavers are well-adapted to reservoir shorelines, particularly those with regular fluctuations on the order of 1.8 metres. The Proponent should substantiate this claim with independent literature developed by persons not employed or contracted by the hydroelectric industry. Lacking that information, the Panel should ignore these statements from the Proponent.
JRP-049B BC Hydro Response As a species, beaver is adapted to habitats subject to frequent disturbance. The shoreline will have natural conditions conducive to beavers. No mitigation measures are proposed for the reasons described in the response to Question 49A above. Project effects on beaver do not contribute to the determination of significant adverse effects on Wildlife Resources. Comments The T8FNs are not familiar with any literature demonstrating that beavers are well-adapted to reservoir shorelines, particularly those with regular fluctuations on the order of 1.8 metres. The Proponent should substantiate this claim with independent literature developed by persons not employed or contracted by the hydroelectric industry. Lacking that information, the Panel should ignore these statements from the Proponent.
JRP-051 SEE ADDITIONAL COMMENTS IN SECTION 3.1 OF DR. SCOTT MCNAY’S WRITTEN SUBMISSION TO THE JOINT REVIEW PANEL DATED NOVEMBER 25, 2013
Comments The information provided by BC Hydro in the response for the T8FNs is selective and incomplete with respect to concerns about rabbits (i.e. snowshoe hare). The T8FNs Site C Project – Initial Impact Pathways Report, included as Appendix B7 of Volume 3, which is the most recent and most complete
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summary of issues and concerns raised by the T8FNs, includes the following issues: § #96 – species at risk – biodiversity – meaningful practice of Treaty 8 rights: o concern about loss of bear dens, habitat, and migration across the Peace River; concern that loss of habitat will result in further reductions in biodiversity in the Peace River Valley, as was the case for bison, and as may occur for fisher § #101 – wildlife populations – meaningful practice of Treaty 8 rights: o the Site C dam would further diminish wildlife populations, including rabbits, and birds; concern that wildlife population effects need to be considered in the context of First Nation hunting; inundation will lead to drowning of animals; there will be an increase in animal mortality trying to cross reservoir; concern about effects of Site C on bear population; beaver and other furbearers will not be able to live in the reservoir; increased morbidity in animals either/or reducing willingness to harvest in the area (Dane-zaa values of letting area heal) or increased perception of poor health equaling contaminated country food; On June 24, 2009, during the TAC process, the T8FNs provided the following questions to BC Hydro as part of a group of 97 questions (BC Hydro’s responses in italics): 7. What does BCH know about the impacts the reservoir will have on bear dens and grizzly bear in the proposed flood zone? Bears were discussed during the TAC meetings and the Ministry of Environment advised at those meetings that impacts to these species are not expected in relation to regional populations and, therefore, species specific surveys are not required. During the area wildlife studies incidental sightings of bears or dens have been recorded for inclusion in the baseline wildlife database. Bear dens are known to occur but are generally uncommon in the study area. Historically it was estimated that the regional black bear population may be reduced by between 10 to 12 animals if the project were to be built. 8. What does BCH know about the impacts the reservoir will have on smaller animals such as rabbits and chickens? BC Hydro provided no response with respect to rabbits. In summary, and as noted by the Panel, the T8FNs have been raising concerns about the effects of the Project on rabbits for many years, and have also consistently raised concerns about the potential effects of the proposed Project on black bear.
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BC Hydro Response During the draft EIS Guidelines comment period T8FNs requested clarification as to why field and telemetry studies were not required for large carnivores, including grizzly bear, black bear, cougar, wolves, coyotes. BC Hydro responded that telemetry studies would not be required because the habitat requirements of the species mentioned is well understood, and they are common (black bear, wolves, coyotes) or unlikely to be found in the Peace River valley (grizzly bear and cougar). Comments There is extensive anecdotal evidence that grizzly bear and cougar do in fact use the Peace River valley and have been sighted on numerous occasions. The Proponent is apparently relying on Provincial data to support its argument that these species are “unlikely to be found in the Peace River valley”. This Provincial data has not been submitted during the environmental assessment in order that it can be scrutinized. If BC Hydro has data or information to substantiate their claims, then the Proponent should file this material on the environmental assessment registry.
JRP-051SA Comments The T8FNs appreciate the persistence of the Panel in seeking from the Proponent an assessment of the effects of the proposed Project on snowshoe hare. In our review of the response, we note the following: [the] applicability [of the snowshoe hare habitat suitability models] to the LAA and RAA is limited by a lack of field verification, as well as any differences between the LAA and RAA and the geographic region in which they were developed. This is unfortunate and unnecessary, as concerns were raised by the T8FNs respecting snowshoe hare as early as 2009, providing the proponent ample time for field verification.
JRP-051SB BC Hydro Response Displaced individuals will colonize adjacent areas and in the near-term may compete with and displace other neighbouring individuals, unless habitats are not currently at capacity. It is reasonably assumed that a new equilibrium will be established through time in areas adjacent to the Project activity zone. Comments Reviewing the habitat suitability maps for snowshoe hare contained with the response, it appears that there are only three areas within the lower portion of the Peace River valley that are suitable for
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snowshoe hare: islands in the river, the lower Halfway River and the lower Moberly River. The islands and the lower Halfway will be entirely inundated and the lower Moberly nearly entirely inundated, though it can be reasonably anticipated that those areas not inundated will erode into the reservoir following inundation. The T8FNs do not share the Proponent’s optimism that snowshoe hare will readily colonize adjacent habitat, which would appear to be largely unsuitable or at a substantial distance outside of the Peace River valley. We do concur that a new equilibrium will be established, but this equilibrium, at least as far as the Peace River valley is concerned, would appear to be absent any suitable snowshoe hare habitat, which means absent any snowshoe hare.
JRP-052 BC Hydro Response As described in the response to Question 51, the Project effect on snowshoe hare would not contribute to the determination of adverse significant effects on Wildlife Resources. Comments See response to JRP-051SB, respecting snowshoe hare. We are unable to determine how the Proponent reached the conclusion since it appears that there will be essentially no snowshoe hare habitat in the lower Peace River valley following inundation.
JRP-054 SEE ADDITIONAL COMMENTS IN SECTION 3.1 OF DR. SCOTT MCNAY’S WRITTEN SUBMISSION TO THE JOINT REVIEW PANEL DATED NOVEMBER 25, 2013
JRP-055A BC Hydro Response In the Peace River valley suitable ungulate winter habitat consists of steep south aspect slopes. These slopes support forage accessible to ungulates in the winter as the topography and tree cover minimize snow accumulation. Comments The Proponent is understating the quality and importance of winter range in the Peace River valley. The Peace River valley is used during harsh winters as an area of refugia by a variety of species. This reality is not reflected in the EIS, and the implications of the loss of this area in the context of a harsh winter have not been assessed in the EIS. BC Hydro Response
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BC Hydro owns land adjacent to the proposed reservoir, and adjacent to areas identified by the Province along the north bank of the Peace River that are also suitable ungulate winter range. These areas are generally along south facing slopes of the Peace River, east of Halfway River and west of Wilder Creek. As a mitigation measure, BC Hydro proposes to manage these lands in a manner that maintains the values of these areas as ungulate winter range and maintains the accessibility of these areas for ungulates (EIS Section 39). BC Hydro will work with the Province to develop management plans for its privately owned lands that supports Crown objectives for ungulate winter range on nearby Crown lands. Comments Since the land owned by BC Hydro is already suitable for ungulates, it is difficult to see how this is mitigative. BC Hydro is simply committing to maintain what is already there, which will not result in any net benefit.
JRP-055B BC Hydro Response The effectiveness of proposed mitigation measures relevant to Project effects on ungulate are described in the EIS Section 14.4. Measures proposed relevant to ungulate are considered effective as described in the EIS Tables 14-15, 14-16 and 14-17. Comments The above tables were revised and included in the response to JRP-048S. In reviewing the tables, the T8FNs could find no mitigation measures associated with ungulate movements across the proposed reservoir. The Proponent response does not address the information request.
JRP-056 Comments See JRP-051
JRP-057 Comments See JRP-051
JRP-058 SEE ADDITIONAL COMMENTS IN SECTION 3.2 OF DR. SCOTT MCNAY’S WRITTEN SUBMISSION TO THE JOINT REVIEW PANEL DATED NOVEMBER 25, 2013
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BC Hydro Response Some species with larger home ranges may be more tolerant of localized disturbance, provided that important habitat requirements are not removed or cumulative thresholds are not surpassed. Consideration of species tolerance was included when characterizing a residual effect. Comments It remains unclear to the T8FNs how tolerance and thresholds were determined without any knowledge of current populations, current rates of predation, current rates of harvesting, and ultimately whether those populations are ascending, declining or stable. The analysis relies entirely on habitat considerations. The use of a 1-km study area is insufficient to obtaining the population information necessary to determining the levels of tolerance and the acceptable thresholds that the Proponent acknowledges are necessary to understanding the residual effects of the Project.
JRP-059 BC Hydro Response Thresholds for implementation of adaptive management would be set based on the following principles: • Objectives of the follow-up programs • Decisions made on the basis of empirical evidence • The availability of an adaptive measure that is economically and technically feasible, and would achieve the objective of the follow-up programs Comments It is unclear whether technically and economically feasible adaptive measures actually exist that would achieve the objective. As just one example, the Proponent describes the following in relation to fisher in section 14.7 of Volume 2 of the EIS: Habitat alteration and fragmentation during construction would have a moderate magnitude effect on fishers, including a permanent loss of den sites. Mitigation measures can replace some den trees in areas adjacent to the reservoir, but the success of artificially created den trees or structures is not known. To account for this uncertainty, the effects characterization has been identified with a low confidence. It is reasonable to assume that the den replacement will not be successful. The options available in that
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instance would appear to be limited to non-existent. This kind of situation does not appear to have been accounted for by the Proponent other than by saying that “the effects characterization has been identified with a low confidence”. The Proponent notes the following in section 14.5.3 of the EIS: The available measures to mitigate the potential effects on wildlife resources may not be fully effective. Therefore, the residual effect of the Project of habitat alteration and fragmentation on certain species would be significant because the sustainability of the regional populations of these species would be threatened (Table 14.22). This includes Yellow Rail (SARA-special concern, Red-listed), Canada Warbler (SARA-threatened, Blue- listed), Cape May Warbler (Red-listed), Bay-breasted Warbler (Red-listed), and Nelson’s Sparrow (Red-listed). It is clear from the information in section 14.7 that the mitigation for fisher “may not be fully effective” or, for that matter, effective at all. Yet, the reason why fisher is not identified as a species for which there are anticipated to be significance residual adverse environmental effects is unexplained in the EIS.
JRP-060A-B-S SEE ADDITIONAL COMMENTS IN SECTION 3.2 OF DR. SCOTT MCNAY’S WRITTEN SUBMISSION TO THE JOINT REVIEW PANEL DATED NOVEMBER 25, 2013
BC Hydro Response Based on work completed in the early 1990s and data collected from 2006 white-tailed deer have consistently preferred deciduous stands on the plateau. The 1993 report stated: “Although the data to judge the importance of the reservoir area to white-tailed deer could be improved by additional monitoring of collared animals, it appears that the Site C project will have little effect on white-tailed deer populations either through habitat or migration impacts." (Simpson 1993). Additional data from 2006 confirms this conclusion. Comments Anyone who drives Highway 29 along the Peace River knows that white-tailed deer can be readily found using areas throughout the Peace River valley. There is considerable and long-standing anecdotal evidence that this is the case in such areas as Bear Flats and the Halfway River confluence with the Peace River. The fact that a collaring study is not capturing the actual movements and habitat use of white-tailed deer is concerning, and raises questions about the study methodology and implementation.
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JRP-067 BC Hydro Response BC Hydro has not been provided with sufficient spatial resolution about harvesting areas to provide a further description of plants of interest to Aboriginal groups that may occur within these specific areas. Comments The response from the Proponent appears to imply that Aboriginal Groups have failed to provide BC Hydro with information necessary to carry out its assessment. The T8FNs have provided BC Hydro with a narrative describing medicinal plant harvesting locations, including their relative locations with respect to the project impact lines. Where these sites are located within the erosion impact line they are presumed to be completely, immediately and permanently lost to the T8FNs. Where these sites are located within the stability impact lines they are presumed to be completely, eventually and thereafter permanently lost to the T8FNs. It is important to note that the T8FNs, and presumable also other Aboriginal Groups, were at no time requested to or provided funding by BC Hydro to carry out a specific study of medicinal and culturally important plants. While some information was gathered as part of the Traditional Land Use Study (TLUS) and provided to BC Hydro, this information is not and was not intended to be a comprehensive listing of plant species important for First Nations use. Upon submission of the TLUS, the T8FNs received review comments from BC Hydro concerning the Study. None of these comments suggested that the Study was inadequate with respect to medicinal and culturally important plants, or had not met the requirements of the TLUS Agreement between the parties in regards to these matters. BC Hydro Response For each traditional use species, the associated areas where each plant may occur for all ecosystem units associated with the plant, are provided in hectares for the LAA and for areas potentially affected in the Project activity zone. It is important to note that where an associated ecosystem occurs, the presence of one of the plants listed is not certain. The information implies only that there is a greater opportunity for occurrence of that plant based on its association with the ecosystem. Comments In addition to the comment above regarding the lack of certainty as to whether a given associated ecosystem unit actually contains the plant species in question, is the concern that the associated ecosystems units where the preferred species are present may not be as accessible as those currently
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used by the T8FNs.
JRP-67SA BC Hydro Response In overview, most Aboriginal groups provided little specific information on plant use other than information about berries in the reports provided to BC Hydro. Information on medicinal plants in particular was often considered private and was not shared. Comments See response above to JRP-067.
JRP-068A Comments The greatest proportional loss to vegetated wetlands is to the WH riparian wetland, where almost 393 ha of a total 1010 ha available within the LAA would be removed with the construction of the dam and creation of the reservoir. This would have been one of the same wetland types likely lost in substantial quantities as a result of the creation of the prior reservoirs and changes to the flow regimes. The fact that there was no attempt to map such wetland loss along the river due to existing hydroelectric development, limits our understanding of the magnitude, geographical context, and potential ecological significance of further losses. It is also not clear whether this wetland class as it exists along the main stem shores is different in species composition from those WH sites that are not in the proposed reservoir area.
JRP-068B BC Hydro Response As described in BC Hydro‘s response to Question 30, BC Hydro proposes to develop a prioritized list of wetland mitigation sites in partnership with Ducks Unlimited. Comments The IR response provides a good overview of the wetland types in the study area, plant association and general wildlife values. It repeats the assertion that: ”…within the LAA, at least 3,300 ha or 80% of existing wetland habitat would be unaffected by the Project”. Rather than presenting figures such as this which lump wetlands together, it is more relevant even in a summary, to explain the relative loss of the specific types of wetlands, especially those associated with riverine hydrological processes, which do not exist in any quantity in upland areas. It is important to keep this in mind in the assessment. The wetland functions provided to the surrounding habitats are related to position in the landscape, and
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different types of wetlands support unique plant and animal communities. The phenology of plant growth in the valley bottoms could also have an influence on habitat function. Lower altitude valley bottoms green up sooner in spring than upland areas, and thus contribute to longer growing season for plant and animals. Those wetlands along the main stem of the river would be expected to provide a greater diversity of habitats and support higher plant species richness. Even with the effects of existing upstream regulation, the tributaries contribute to the persistence of the river wetland types. It is recognised in the EIS that despite these important initiatives it is not possible to replace all of the wetland functions that are lost. First, the scale of hydrological change is large. It will affect all of the existing Peace River riparian habitats within the impoundment. Second, It is not reasonable to expect to duplicate the existing riverine hydrological regime and soil characteristics that have created the existing wetland features. The hydrological regimes of typical off-system marshes that are not directly affected by larger river processes are better candidates for wetland creation or enhancement. However, even those recreated wetlands tend not to reproduce the same level of biodiversity that exists in natural wetlands. Thus, it is concluded appropriately that the loss of riparian wetlands will be significant. It is concluded that this loss is acceptable when weighed against the benefits of the Project. However, the fact that the regional losses of riparian wetlands in the river basin as a whole have not been well documented, nor explained, means that the level of significance of additional losses in river reaches immediately adjacent to the currently degraded environments remains poorly appreciated in this EIS.
JRP-068S SEE ADDITIONAL COMMENTS IN SECTION 2.4 OF DR. ANNETTE LUTTERMAN’S WRITTEN SUBMISSION TO THE JOINT REVIEW PANEL DATED NOVEMBER 25, 2013
BC Hydro Response Wetland ecosystems occurring within the LAA – bog, fen, marsh, swamp, and shallow and open water classes – offer most of the ecological functions listed above, with the exception of natural shoreline protection from wave action and erosion. Comments Remaining shoreline vegetation that currently exists along the main stem of the Peace River should provide some protection from wave action and erosion at some water levels. Is it actually the case that this function is no longer present at all?
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BC Hydro Response The mitigation measures - notably BC Hydro’s proposal to work in partnership with Ducks Unlimited Canada to create, secure, enhance, or reconstruct wetlands – would aim to recreate some or all of the ecological functions lost with those associated with the lowland riparian (WH) wetlands, as outlined in Table 1. As described above key wetland functions would include similar function to those lost to the Project, including refugia for rare species, habitat suitable for a wide range of waterfowl and other species, and biodiversity function. Detailed plans for creation or enhancement of wetland habitat will be developed in consultation with appropriate regulatory agencies and Aboriginal groups. The response is clear that the objective would be to aim for recreation of “some or all” of the ecological functions lost. It should however, be made clear that this objective is not likely to be reached. Also, even if it were possible to recreate these functions in other places, the loss of diverse riparian habitats along a main river corridor would still be a significant residual effect.
JRP-069A Comments An important question for residual effects assessment and cumulative effects is the degree to which it is feasible to mitigate loss of wetland function and diversity of habitats in this river system added to the loss of diversity that has already occurred in the upper reaches of the watershed. The hierarchy of mitigation planning starts with “avoiding direct affects where feasible. This is the most defensible approach of course. However this EIS does not make it clear that the vast majority of direct effects cannot be avoided, and cannot be effectively mitigated. Again it is a question of scale, and an appreciation for the function that the river valley bottom riparian habitats can play in the support of regional wetland biodiversity.
JRP-069C Comments The EIS should explain to what extent it might be possible to improve wetland function in other parts of the Peace River watershed. This would provide a clearer indication of the level of long-term degradation of riparian habitats that has occurred due to flow regulation in the watershed.
JRP-069D BC Hydro Response BC Hydro will not be able to create like for like for all wetland habitats affected by the Project, in particular marl fens, and this is taken into account in the assessment of residual Project effects and contributes to the determination of significant adverse effects on
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Vegetation and Ecological Communities. Comments Again, if there are significant adverse effects on vegetation and ecological communities, the EIS should provide a better understanding of adverse effects on these communities of hydroelectric development in the watershed as a whole.
JRP-070A BC Hydro Response The distribution of shoreline and riparian vegetation within the zone of flow variance could shift due to the predicted small reduction in the wetted width and changes in the pattern of flow within the zone of flow variance in the first 16 km between the dam site and the Pine River. Comments The response to this IR could explain clearly that there are no feasible mitigation measures for downstream riparian vegetation communities aside from altering the proposed flow regime.
JRP-070B Comments The Proponent has only partially addressed the question. The requested information concerning a follow- up program has not been provided. The CEA Agency describes the purpose of a follow-up program as follows: A follow-up program is used to: • verify predictions of environmental effects identified in the environmental assessment; • determine the effectiveness of mitigation measures in order to modify or implement new measures where required; • support the implementation of adaptive management measures to address previously unanticipated adverse environmental effects; • provide information on environmental effects and mitigation that can be used to improve and/or support future environmental assessments including cumulative environmental effects assessments; and • support environmental management systems used to manage the environmental effects of projects.
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The monitoring information described in the Proponent’s response addresses the first bullet above. However, the following are not described: § mitigation measures; § monitoring to determine the effectiveness of these mitigation measures; and § adaptive mitigation measures In general, the T8FNs are unclear as to how the Proponent will mitigate for the further reduction of wetted width4 and consequent reduction in seasonally inundated wetlands along the shore of the Peace River. These wetlands develop in very specific conditions that cannot be recreated elsewhere. The only means to mitigate for the loss of these wetlands would be to release more water from the upstream Williston Reservoir during the spring freshet to mimic the seasonal inundation previously provided naturally. It is unclear what other mitigation would be available to the Proponent, which likely explains why its response provides no information in this regard.
JRP-071A-C SEE ADDITIONAL COMMENTS IN SECTION 2.4 OF DR. ANNETTE LUTTERMAN’S WRITTEN SUBMISSION TO THE JOINT REVIEW PANEL DATED NOVEMBER 25, 2013
BC Hydro Response BC Hydro will implement a Vegetation Management Plan. This Plan will include requirements for completion of pre-construction rare plant and sensitive ecosystem surveys, for consideration of measures to avoid or reduce impacts on these resources prior to final design and siting of Project components including the use of environmental protection and restricted activity zones to protect identified rare plant and sensitive ecosystem features.
4 The operation of the GM Shrum Generating and Williston Reservoir have previously resulted in a reduction of wetted width and consequent loss of seasonally- inundated wetlands along the shore of the Peace River in the area in question downstream of the proposed Site C Project.
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Comments The purpose of these pre-construction surveys is unclear. As Hydro itself notes in response to JRP-086, “translocations of rare plant species generally have low overall success rates”. The surveys would ultimately be providing a more detailed and accurate account of the loss of rare plants resulting from the Project; however, since these surveys will not be undertaken until following the environmental assessment, they will provide no information to improve the effects assessment and determination of significance. Completion of rare plant and sensitive ecosystem surveys should be done as part of the EIS. This represents an important information gap that limits the ability to understand the significance of the impacts of this Project.
JRP-072A BC Hydro Response Botanists compared the habitat associations of each target species with ecosystem types and terrain features found in the LAA. These data were used to identify areas of high- suitability rare plant habitat in the LAA and thus guided placement of survey sites and transects. Comments This is a reasonable approach to rare plant surveys in a large area. Although it is not possible to conduct field surveys in areas already flooded, mapping of high suitability rare plant habitat in the upper Peace River watershed could still be done, with non-flooded reference sites north and south of the reservoir areas surveyed to provide some indication of rare plant habitat potential that has been lost. This may be considered to be too expensive for the purpose. However, as argued previously, this is a highly significant cumulative effect of sequential hydroelectric development on this river system that is not captured in the EIS. The response state that: “Many of the ecological communities at-risk are herbaceous or shrub wetlands.” These wetlands were also among those most affected by previous hydroelectric development. This again is a reason for including the upper watershed in the cumulative effects assessment.
JRP-077 BC Hydro Response The updated sensitivity analysis provided in this response consists of: • … • The potential for capital cost to be higher than BC Hydro’s reference case. BC Hydro
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evaluated a 10% capital cost increase for the Project in Part 4.4 of the Evidentiary Update. In this response there are the following three additional sensitivities: (1) a 15% capital cost increase for the Project; (2) a 30% capital cost increase for the Project; and (3) a 30% capital cost increase for the Project and for the resource option alternatives. (our underlining) • … Comments Presumably, the Proponent included the above underlined comparison to demonstrate the cost advantage of the Project over the alternatives in a high cost environment. However, the comparison is unequal. The probability of the Project portfolio being 30% over budget is far more likely that the probability of the alternative portfolios being 30% over budget. This is the case because the alternative portfolios contain a wider variety of resources, developed over a longer time period, using a variety of different labour forces and materials, etc. There are simply more projects with more variables and so the probability of a 30% cost overrun is far less likely. To put this in perspective, imagine flipping a dime ten times where 70% (i.e. 7 out of 10) or more heads represents a cost overrun of 30% or more, then compare this to flipping 10 pennies 10 times where 70% (i.e. 70 out of 100) or more heads represents a cost overrun of 30%. The probability of the former is 0.1719 whereas the probability of the latter is 0.00003925. Again, the comparison fails to account for the flexibility inherent in the alternative portfolios. BC Hydro Response Given the level of scope definition for the Project, a situation where Project capital costs increase by 30% is highly unlikely outside of a scenario where there is a market disruption – i.e., an external, systemic increase to one or more major Project cost drivers (such as labour costs or steel prices). Importantly, a change to such a cost driver would not only apply to the Project, but would also affect all other resources options under consideration in the analysis of alternatives. Comments However, it would not affect the other resources options in the same way. Because these resource options would be developed at a variety of times, there is a far greater likelihood that they will be developed during periods of high and low costs for the key drivers, reducing the risk of the alternative portfolios. BC Hydro Response This 30% sensitivity is at the far end of the range of a Class 3 estimate but less than the
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far end of the range of the Class 4 and 5 estimates for alternative resource options. Given the lack of specific design and site information for the Class 4 and 5 alternatives it is possible the cost impacts for alternative resource options could be higher. Comments The Proponent neglects to mention that the Class 4 and 5 estimates also have lower low estimates than a Class 3 estimate5: § Class 5 o L: -20% to -50% o H: +30% to +100% § Class 4 o L: -15% to -30% o H: +20% to +50% § Class 3 o L: -10% to -20% o H: +10% to +30%
JRP-077B BC Hydro Response The 2012 Forecast is tracking actual F2014 loads (6 months of actuals) to within 50 GWh, or an error of 0.2%. Comments The above comment is misleading. The annual load for the past 20 years has varied year-to-year
5 AACE International. January 2013. AACE International Recommended Practice No. 69R-12, page 3 of 14.
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anywhere from +6% to -10%, and typically +/-3%, suggesting that a 50 GWh error is more like a 7% error in estimation. To put this another way, if annual load growth net of DSM is about 400 GWh, then an estimation within 50 GWh would represent a >10% error one year later.
JRP-078 SEE ADDITIONAL COMMENTS IN SECTION 3.1 OF NORTH/SOUTH CONSULTANTS WRITTEN SUBMISSION TO THE JOINT REVIEW PANEL DATED NOVEMBER 25, 2013
JRP-079 SEE ADDITIONAL COMMENTS IN SECTION 3.1 OF NORTH/SOUTH CONSULTANTS WRITTEN SUBMISSION TO THE JOINT REVIEW PANEL DATED NOVEMBER 25, 2013
JRP-086 Comments In the response to this IR about whether there are potential sites in the region that could be suitable for relocation of medicinal and food plants, BC Hydro suggests that there are “degraded habitats in the RAA which have the potential to become sites of high ecological value if restored (wetlands, grassland slopes, riparian forests, etc.).” It would be useful for BC Hydro to comment on whether there are any such sites along the main stem of the river; especially riparian forests, that have the potential to be restored under current or future proposed hydrological regimes. What is the extent of permanently lost habitat areas that were formerly important for medicinal and food plants?
JRP-090 SEE ADDITIONAL COMMENTS IN SECTIONS 2.5, 3.1 AND 3.2 OF DR. ANNETTE LUTTERMAN’S WRITTEN SUBMISSION TO THE JOINT REVIEW PANEL DATED NOVEMBER 25, 2013 BC Hydro Response Flooding in the Williston Reservoir resulted in some loss of vegetation communities occupying river floodplains, and riparian features such as wetlands. To a lesser extent, upland areas within these valleys were also flooded up to the maximum reservoir elevation. (our underlining) Comments The level of effort applied to describing the loss of vegetation communities from prior flooding is not adequate to the analysis of cumulative effects assessment.
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BC Hydro Response To assess the potential cumulative effects of the Project on Wildlife Resources the RAA was defined such that the potential effects of reasonably foreseeable projects and activities well removed from the LAA were taken into account, as they may still remove suitable habitats or affect species that are the same as those affected by the Project. Similarly, in order to assess the potential cumulative effects of the Project on Vegetation and Ecological Communities, the RAA was defined such that the potential effects of reasonably foreseeable projects and activities well removed from the LAA were taken into account, as they may still remove rare plants and terrestrial habitats that are the same as those affected by the Project. (our underlining) Comments The RAA should have been defined such that the removal of river bottom habitats from existing development was captured in the assessment to the extent possible.
BC Hydro Response Baseline Case The Baseline Case demonstrates the current status of the VC, which necessarily ensures that the effects of all projects and activities that “…have been … carried out …” are accounted for in the assessment of the cumulative effects of the Project. Comments This approach strikes me as more akin to older EA methods that do not consider the cumulative effects of past projects. Lacking any comprehensive analysis of the mechanisms and results of past environmental degradation, and its influence on the current status of a VC, there is very limited understanding of the cumulative effects of relatively recent developments. Furthermore, using the current status of a VC to compare future change does not necessarily even fully explain cumulative effects. The current status may be in a state of flux, natural flux, or adjustment to past and ongoing developments. It is suggested in the Site C EIS that this is the case with riparian vegetation communities and fish populations in the Peace River. The residual effects of the upstream hydroelectric projects are not fully understood.
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In response to suggestions to incorporate a “pre-development case” BC Hydro states: …a pre-development case is not necessary in order to predict the cumulative effects of the Project; ii) any pre-development case would be inherently unreliable; and iii) there is no method for extrapolating from a pre-development case in order to predict the potential cumulative effects of the Project, effects which would occur in the future. The reason other parties suggested this is because people are concerned about how much has been lost already from this river basin as a whole. This is a legitimate question in the context of a cumulative effects assessment, and it has not been well investigated or explained. …if direct, reliable data about the pre-development state is available, that information could be used. BC Hydro is not aware of data from the pre-development era. Secondly, in the absence of data from the pre-development era, various assumptions would have to be made in order to emulate pre-development conditions. The longer the period of time between current conditions and the pre-development era, the greater the uncertainty would be.” Air photos and hydrological data are available for the pre-hydroelectric development period. These are reliable and useful data to map and understand various characteristics of vegetation communities. These data types have also been used to define current conditions and predict future conditions with additional flow regulation. The argument that there are no reliable historic data is not defensible. The most reliable means by which the effects of past activities and projects can be taken into account in assessing the potential cumulative effects of Project, which will arise in the future, is to use the present day baseline, which can be assessed directly. This approach negates part of the purpose of cumulative effects assessment. We would like to understand what the condition of the environment may have been without the hydroelectric developments. This is the environment that existed for the most part when the Treaty was signed. The assessment should at least consider hydroelectric development to look at valley bottom habitats. The reason for this is that valley bottom habitats are completely destroyed by reservoir development. Forestry practices can permanently alter sites, creating regenerated forests following harvest, however this is not always the case. The results of flooding valley bottom habitats of large rivers is much more predictable; these can be mapped, there are reliable pre-development data, they are relatively rare on the landscape, and they are known to be species rich and structurally diverse habitats. They are being selectively and incrementally destroyed by hydroelectric development. These should be considered to be logical reasons for conducting a cumulative effects assessment, and for using a pre-development baseline.
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…there is no “formula” by which the cumulative effects of the Project, which will arise in the future, can be predicted using a pre-development case. One example is a simple mapping exercise using historical air photos to consider the cumulative loss of riparian habitats within the river basin. BC Hydro also suggests that choosing a time prior to the construction of the Bennett Dam to assess the cumulative effects of the Project would be "arbitrary". This argument should not be used to preclude the development of historic reference points to better understand the cumulative effects on environmental health. As previously mentioned, many of the effects of hydroelectric development in particular are relatively clear, and are some of the most direct and extensive changes that has already been made to the river system. An aggregate time period before the first dams is reasonable since the seasonal flow patterns would have been relatively stable, and the river bottom habitats would have not changed that quickly. Most importantly, people are clearly interested in the cumulative effects of hydroelectric development on this river. The response mentions that in British Columbia, government agencies have issued various planning and policy documents in order to guide development in the region. However, strategic environmental assessments must include more comprehensive assessment of developments that have caused major habitat change in the recent past. There has not been this level of assessment done in the upper Peace River system. BC Hydro Response Cumulative residual effects within the LAA would be identified as significant, if effects were rated as high magnitude, combined with long term in duration and continuous in frequency (see Section 27.4). Cumulative effects on visual resources are rated as not significant, as they do not meet this threshold. Comments It is surprising that the adverse visual effects of the Project itself are not considered to be significant, let alone in combination with others? For most people, the effects of dams, reservoirs, and transmission lines across the landscape are some of the higher magnitude adverse visual effects known. One conclusion of the EIS is that although the relative contribution of the Project to GHG emissions is small, the effects are significant, due to the acknowledged importance of climate change for adverse effects on the environment. In addition to this conclusion, it is important to the EIS to recognize that many of the environmental problems that we fear are associated with predicted climate change are in fact inflicted directly upon the river system with major hydroelectric development. These include:
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• flooding • changes to the magnitude and flow in rivers and streams • habitat loss and conversion • displacement of species and populations • displacement of human uses • loss of cultural landscapes • changes in seasonal water flows from patterns experienced in the past to which species and human cultures are adapted BC Hydro Response The residual effects of the Project on two of the VCs, Vegetation and Ecological Communities and Wildlife Resources, are expected to be significant and, accordingly, those effects are also significant when considered in combination with the effects of other projects or activities. However, the effects on those VCs resulting from other projects and activities that have been or will be carried out are considered significant, even without the Project. Comments What should decision makers do with that kind of conclusion? Recommendations 1. That the entire river system be assessed in a comprehensive fashion to look at the current state of wildlife resources, vegetation and ecological communities and what has led to the current conditions;
2. That special attention be directed to the operations of all existing hydroelectric facilities and how these have affected and continue to affect these VCs throughout the river system;
3. That opportunity for future mitigation be investigated considering the operation of the hydroelectric system as a whole.
JRP-091 BC Hydro Response The proportion of the area that would be inundated by the Project that was susceptible to flooding prior to regulation by the existing upstream dams is estimated to be 70%. Comments
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The above comment is misleading, as it includes the river itself, which is of course already inundated. The portion of lands that would be inundated by the proposed reservoir and that were previously subject to periodic flooding can be determined from the total reservoir surface area (9330 ha) and the area of flooded land (5550 ha), and the resulting area of the flooded river and tributaries (3780 ha). The land area subject to periodic flooding prior to regulation is the difference between the flooded area of 1964 (6565 ha) and the area of the river (3780 ha), or 2785 ha. So, the proportion of land area that would be inundated by the Project that was susceptible to periodic seasonal flooding prior to regulation by the existing upstream regulation is (2785/5550)*100 or about 50%. It is unclear why this information is relevant to the environmental assessment. Periodic or seasonal flooding within a riverine environmental is a natural and necessary process, the net environmental benefits of which are well established. The permanent inundation of these previously periodically-flooded lands by the proposed Project would have effects that are not equivalent to seasonal inundation in direction (negative instead of positive), frequency (permanent as opposed to infrequent) or context (erodible shoreline versus mature floodplain), among other differences. Secondly, even if this information is relevant, then the area of inundation of the reservoir should rightly include the additional land areas up to the maximum flood level at 66.3 metres elevation, which would also be periodically flooded.
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APPENDIX A
November 2013 43
Treaty 8 Tribal Association 10233 – 100th Avenue, Fort St. John, BC, V1J 1Y8 Phone: (250) 785-0612 Fax: (250) 785-9800 or 785-2021 Website: www.treaty8.bc.ca
Transmittal TO: BC Hydro Site C EA Team ATTN: Seanna McConnell, Trevor Proverbs, Britt Harold, Aliana Slot CC: Brian Murphy (EAO), Analise Saely (CEAA), Linda Jones (CEAA) FROM: T8FNs Site C EA Team Effects of the Environment on the Site C Project – Incremental RE: Consequences of the Site C Reservoir on Upstream Dam Failure 9 (including this page), DATE: December 3, 2012 PAGES: plus attachment
Introduction On November 9, 2012, the Treaty 8 First Nations (T8FNs) received a response from BC Hydro (attached) to our requests for information in relation to dam break studies and inundation mapping for the WAC Bennett and Peace Canyon Dams. The purpose of the prior requests and the current request was to better understand the incremental consequences of the development of the Site C project for a dam break and inundation resulting from the unlikely failure of one of the upstream facilities, namely WAC Bennett Dam and Peace Canyon Dam, as a result of natural hazards. In its response, BC Hydro directed the T8FNs to some additional documents provided previously to Halfway River First Nation (HRFN) concerning dam break analysis, inundation mapping, and emergency planning in relation to the WAC Bennett and Peace Canyon Dams, as follows: • BC Hydro. November 2009. Emergency Planning Guide: WAC Bennett and Peace Canyon Dams. • BC Hydro. November 2011. Emergency Planning Guide: WAC Bennett and Peace Canyon Dams. • BC Hydro. October 29, 2010. Memo to Holder of BC Hydro Planning Guide: WAC Bennett and Peace Canyon Dams – New Flood Extent Maps (Dam Failure Inundation Maps for Emergency Response and Planning):
1 o Map 1a – W.A.C. Dam Breach during the Probable Maximum Flood Scenario o Map 1b – W.A.C. Dam Breach during the Probable Maximum Flood Scenario o Map 2a – W.A.C. Dam Breach after an Earthquake Scenario o Map 2b – W.A.C. Dam Breach after an Earthquake Scenario o Map 3a – Peace Canyon Dam Breach during the Probable Maximum Flood Scenario o Map 3b – Peace Canyon Dam Breach during the Probable Maximum Flood Scenario o Map 4a – Peace Canyon Dam Breach after an Earthquake Scenario o Map 4b – Peace Canyon Dam Breach after an Earthquake Scenario (collectively the “Materials”) These Materials were helpful in assisting the T8FNs to better understand the implications of the proposed Project in relation to the incremental consequences of upstream dam failure resulting from natural hazards in the event that the proposed Site C Project is developed. As a preliminary observation, the contents of portions of the November 2011 Energy Planning Guide refer to locations (including emergency response locations) and actions to be taken in the Columbia River basin and appear to have been sent in error to the HRFN. Accurate and up- to-date copies of the Emergency Planning Guide need to be sent immediately to the HRFN to the attention of Chief Russell Lilly. The comments provided herein by the T8FNs are preliminary, and are being transmitted for further discussion at the EA Committee, and copied to relevant regulatory authorities. The T8FNs anticipate that the issues raised by our comments will be addressed by the EA Committee and incorporated into future activities in relation to the Materials, as agreed by the EA Committee. In the instances where the issues raised herein are not addressed or not agreed to by the EA Committee, we anticipate that the EA Committee will duly record these instances, with supporting justification and clarification, as appropriate and in accordance with the EAPA, in order to provide a basis for further discussion and to track the resolution of issues discussed at the EA Committee. The T8FNs have not undertaken a detailed verification of the findings of the Materials for any purposes other than those contemplated in the EAPA. Any comments provided herein may be supplemented or revised after further review by the T8FNs, and do not themselves constitute adequate consultation by BC Hydro or the Provincial Crown of the T8FNs with respect to the subject matter or adequacy of the Materials. The T8FNs reserve all rights to revisit the issues raised in the Materials or to make further comments on the Materials at any time. For greater certainty, and recognizing that BC Hydro is solely responsible for instructing its personnel and consultants, any use, re-use or reliance by BC Hydro on these comments, including but not limited to any advice or recommendations, for the purposes of project design, engineering, planning, management, construction, operation, environmental protection, or rehabilitation or for any other purpose whatsoever is at the sole discretion and risk of BC Hydro. The T8FNs, and consultants and advisors to the T8FNs, have assumed and accept no responsibility or liability for actions taken or not taken by BC Hydro with respect to these comments.
2 Questions to Date The questions raised by the T8FNs to date include the following: 1. Are the requested materials (i.e. dam break studies, inundation maps and emergency response plans for the WAC Bennett and Peace Canyon Dams) relevant to the environmental assessment of the Site C Project? 2. What are the appropriate conditions surrounding release of the requested materials? 3. Are the dam break studies, inundation maps and emergency response plans for the WAC Bennett Dam and Peace Canyon Dam required to be updated by the Canadian Dam Association pursuant to its Dam Safety Guidelines as a result of the development of Site C? We address these questions below in the following order: 2, 3, 1. This is followed by a preliminary assessment of the implications of the incremental consequences for HRFN of developing the Site C reservoir, a summary of our position in light of the new information, and a revised information request. Question 2: Conditions Surrounding Release of the Materials This issue has been partially addressed by the provision of the Materials to the Treaty 8 Tribal Association (T8TA) by HRFN. The T8TA has since provided access to the Materials to Rick Hendriks for use in preparation of this transmittal. The T8FNs note that the Materials are marked “Security Sensitive” and will treat the Materials as confidential, pursuant to the EAPA and will not circulate the Materials outside of our team. The question remains as to how information concerning updated dam break studies, inundation mapping, and emergency response planning should be best released to include consideration of the Site C dam and reservoir. This will depend on the outcome of the other questions, as discussed below. Question 3: Requirements of the CDA Dam Safety Guidelines In its response of November 9, BC Hydro acknowledges that the CDA Guidelines consist of: • Principles applicable to all dams, which should be understood by dam owners, regulators, managers, operators, and others; and, • An outline of processes and criteria for management of dam safety in accordance with these principles. In our prior submission, we noted principle 1b, which reads as follows: The standard of care to be exercised in the management of dam safety shall be commensurate with the consequences of dam failure. … The estimate of consequences [which refers to incremental consequences in the CDA Guidelines] should cover both upstream and downstream damage, including:
3 • Cascade effects where a given drainage basin has a series of dams The T8FNs consulted widely within the industry concerning the interpretation of this principle and of the requirements of the CDA Guidelines respecting the responsibility for addressing “incremental consequences”, including with the following organizations: • Nalcor Energy • Manitoba Hydro • Innergex • Canadian Dam Association (Mr. Don Butcher) There was consensus that the assessment of the “incremental consequences” of the construction of a downstream facility triggers the requirement to update dam break studies, inundation mapping and emergency response plans for the upstream facilities. BC Hydro’s response of November 9 appears to concur with this: If Site C is built, the consequences of failure of WAC Bennett and Peace Canyon Dams would be reassessed, and the associated inundation maps updated. However, there was also consensus that it was the responsibility of the downstream facility to ensure that updating of the upstream studies and plans occurred as a result of consequences of the downstream facility, and that the upstream facilities were taken into consideration in the design and operation of the downstream facility. In other words, it was universally understood that downstream facilities have upstream consequences (beyond inundation from initial reservoir creation) in the event of the failure of an upstream facility. Secondly, it was also universally acknowledged that upstream facilities pose a potential threat to downstream facilities. The latter issue is addressed in principle 5b of the CDA Guidelines: Hazards external and internal to the dam shall be defined. Hazards may change in nature and significance at different stages of a dam’s life. External hazards originate outside the boundary of the dam and reservoir system and are beyond the control of the dam owner. External hazards include the following: • … • The reservoir environment, including rim features, such as upstream dams and slopes around the reservoir that pose a threat (our underlining) Clearly, the existing WAC Bennett Dam and the Peace Canyon Dam meet the criteria for hazards that must be addressed in the design of the Site C Project to meet the CDA Guidelines. Question 2 – Relevance to the Environmental Assessment of Site C In response to the issue of when and where these incremental consequences should be considered (i.e. as part of the environmental assessment process for Site C, the dam safety management program for WAC Bennett Dam and Peace Canyon Dam, and/or elsewhere) there was limited opinion amongst those industry representatives consulted. Only one of the four
4 (Nalcor Energy) had recently dealt with a similar situation. In that instance, the information related to incremental consequences of downstream facilities (there were two in that instance) on failure of an upstream facility was filed during the environmental assessment of the downstream facility. In its recent response to the T8FNs, BC Hydro provides its perspective on this issue: It is the BC Dam Safety Regulation dam failure classification that determines the requirements that a dam owner must meet and the BC Dam Safety Regulation dam classification table is consistent with the CDA Guidelines. Neither the CDA Guidelines nor the BC Dam Safety Regulation make any reference to the requirements for an Environmental Assessment process; specifically, there is no mention of inundation mapping being a requirement to assess the consequences of failure of a dam for the specific purpose of undertaking an assessment of the environmental effects of a project. … If Site C is built, the consequences of failure of WAC Bennett and Peace Canyon Dams would be reassessed, and the associated inundation maps updated. That work would form part of the dam safety management programs for those dams, not the environmental assessment application for Site C. With respect to failure consequence classification, as we recently indicated to the EAO,1 that has never been our concern. Our concern is with how the development of the Site C Project interacts with natural hazards, the nature and extent of the incremental consequences of Site C for those hazards, whether these incremental consequences have any material implications for the T8FNs, and where the responsibility lies for assessing those material implications. In its response, BC Hydro points to the BC Dam Safety Regulations, which are referred to in s.23.2 of the EIS Guidelines. However, the BC Dam Safety Regulations do not address numerous items considered in the CDA Guidelines, including incremental consequences resulting from upstream cascade effects as well as threats posed by upstream dams, as discussed above. We remain concerned about the requirements of s.23.2 of the EIS Guidelines with respect to consideration of CDA requirements respecting cascade effects and upstream threats. However, the provision of the Materials has clarified that the primary causes of failure of the upstream facilities are not considered to be “accidents” as addressed by s.23.2 of the EIS Guidelines but “natural hazards”, including extreme floods and earthquakes, which are addressed by s.23.1 of the EIS Guidelines: The EIS must take into account how local conditions and natural hazards, such as severe and/or extreme weather conditions and external events could adversely affect the project and how this in turn could result in impacts to the environment (e.g., extreme environmental conditions result in malfunctions and accidental
1 Email of November 23, 2012 from Rick Hendriks to Brian Murphy
5 events). These events should be considered in different probability patterns (i.e. 5-year flood vs. 100-year flood). … The EIS must provide details of any planning, design and construction strategies intended to minimize the potential effects of the environment on the project. The Proponent proposes to assess the following environmental factors: extreme weather events; sedimentation of the reservoir; seismic activity; wildfire; flooding; low flow or drought conditions; slope stability and mass wasting events; and climate change. (our underlining) The commitment by BC Hydro to undertake an assessment of the effects of seismic activity and flooding on the proposed Project is noted. In this instance, the adverse effects of seismic events and extreme flooding on the WAC Bennett Dam and Peace Canyon Dam, their consequent effects on the size of the Site C reservoir, and the planning strategies intended to minimize the effects of this expanded reservoir (i.e. inundation mapping and emergency planning) are the issues of particular interest to the T8FNs.
Effects of the Environment on the Project: Implications of Natural Hazards on Reservoir Expansion for Halfway River First Nation Reserve and Other Areas The potential incremental consequences of the construction of the Site C reservoir are best illustrated by examining the implications that flood and earthquake natural hazards have on the Site C reservoir. Flood Extent Map 1a and Map 2a of the Emergency Planning Guide: WAC Bennett and Peace Canyon Dams illustrate the extent of downstream flooding resulting from a failure of the WAC Bennett dam resulting from the probable maximum flood scenario and the earthquake scenario, respectively. As indicated in the Materials, the maps are cut off and show flooding only in the lower 33 km of the Halfway River. However, in both scenarios, flooding was estimated to extend 46 km up the Halfway River. The HRFN reserve forms the eastern boundary of the Halfway River approximately 50 km to 65 km from its confluence with the Peace River. Due to the scale of the inundation maps and the 15 m contour interval, the limits of flooding are considered approximate, and without access to the complete inundation mapping showing the HRFN reserve, the extent of potential flooding cannot be precisely determined. Nonetheless, under existing conditions, the HRFN reserve would appear to experience relatively modest, if any, inundation and only under a failure event due to an extreme natural hazard at the WAC Bennett Dam. The situation appears to be quite different following development of the Site C reservoir. The Site C reservoir floods 14 km up the Halfway River and raises the water level at the confluence of the Peace River and Halfway River from el. 428 m to el. 461.8 m during normal operating conditions. Therefore, a “sunny day” earthquake-induced flood resulting from failure of the WAC Bennett dam has a 14 km and 34 m “head start” up the Halfway River. Under the probable maximum flood scenario, this “head start” is several km greater and over 4 m deeper. What the effects of this “head start” are on flooding of the HRFN reserve are difficult to determine
6 without an update of the dam break study and inundation mapping for the WAC Bennett Dam. Given the extent of the head start, the increased flooding at the HRFN reserve could potentially be in excess of 10 metres in depth, and could extend across the entire HRFN reserve lands. The effects of extreme flooding and earthquake natural hazards on the Site C reservoir, vis-a-vis failure of the WAC Bennett Dam, raise several additional issues for HRFN, including: • lack of consultation or even any mention of this matter by BC Hydro or the Crown to HRFN to date; • increased emergency preparedness capacity required in HRFN; • insurance and liability implications for the HRFN; and • effects on community well-being as a result of being effectively “transplanted” into the dam failure flood zone downstream of the WAC Bennett Dam. While the above example illustrates the effects of the environment on the Project for HRFN, there are other areas that could be similarly affected depending on the findings of updated studies. These areas include: • other reaches of the Halfway River; • lands under consideration as Treaty Land Entitlement lands by the T8FNs; • other tributaries downstream of Peace Canyon Dam, but upstream of the proposed Site C dam, including the Moberly River, Cache Creek and Farrell Creek; • other areas, buildings and residences within Hudson’s Hope and along the shore of the Peace River not inundated by failure of WAC Bennett Dam or Peace Canyon Dam under current conditions but inundated as a result of the extension of the flooded area due to development of the Site C reservoir; and • other areas, including in Old Fort and Taylor, not inundated by failure of WAC Bennett Dam or Peace Canyon Dam under current conditions but inundated as a result of the additional water made available due to cascade failure of the Site C reservoir. Summary As a result of our preliminary review of the Materials and reconsideration of the EIS Guidelines and BC Hydro’s responses to date, the T8FNs have reached the following tentative conclusions: • the responsibility for addressing incremental consequences of failure of an upstream facility rests with the developer of the downstream facility, in this case Site C; • the BC Dam Safety Regulations are not consistent with the CDA Dam Safety Guidelines 2007 in several important respects; • s.23.2 of the EIS Guidelines does appear to adequately address the requirements of the CDA Guidelines respecting incremental consequences of the Site C project and upstream threats posed by the existing WAC Bennett Dam and Peace Canyon Dam;
7 • s.23.1 of the EIS Guidelines requires BC Hydro to address, and BC Hydro has already indicated that it will address, the effects of the environment on the Project resulting from natural hazards, including flooding and seismic activity; • the adverse effects of flooding and seismic activity on the Site C reservoir include the potential for expansion of the reservoir as a result of failure of the WAC Bennett Dam and/or Peace Canyon Dam; • expansion of the Site C reservoir as a result of failure of the WAC Bennett Dam effectively moves the HRFN reserve from outside of the flooding zone to well within the flooding zone, based on a preliminary review of the Materials; and • the movement of the HRFN reserve to within the dam failure flooding zone for the WAC Bennett Dam has implications for the HRFN on which neither BC Hydro nor the Crown have yet consulted with the HRFN. The T8FNs are open to discussing further with BC Hydro and the Crown as to how to best meet the requirements of the EIS Guidelines, particularly s.23.1. However, the effects of natural hazards, including seismic and flooding hazards that could result in failure of the upstream facilities and consequent expansion of the Site C reservoir, is required to be addressed by this section of the Guidelines. The T8FNs fully expect that as a result the requirements of the EIS Guidelines, the potential effects of these hazards on the upstream facilities and the implications of the failure of one or both of these facilities for the Site C project, including the effects of reservoir expansion on the HRFN reserve, will be addressed by the Proponent in the EIS. In the event that the Proponent intends not to provide the above information in the EIS, we are requesting notification from the Proponent not later than December 14, 2012 so that we may develop an alternative process for consultation with the Crown concerning this information, which we believe is essential to understanding the implications of the proposed Site C project on the Treaty rights and interests of the T8FNs. Revised Information Request As a result of our review of the new information provided in the Materials, the T8FNs are revising and reissuing our information request as follows: 1. The T8FNs are requesting flood extent mapping for the 2011 Emergency Planning Guide: WAC Bennett Dam and Peace Canyon Dam extending further up the Halfway River a minimum of 10 km beyond the extent of expected flooding. 2. The T8FNs request clarification as to whether the HRFN is currently considered an “emergency response agency” for the purposes of the Emergency Planning Guide for the WAC Bennett and Peace Canyon Dams? 3. In the event that the Site C Project is constructed, and the HRFN reserve moves within the downstream inundation zone of the WAC Bennett Dam, what would be the emergency responsibilities of the HRFN?
8 4. Have there ever been any Dam Incidents in relation to WAC Bennett Dam or Peace Canyon Dam? If so, what was the nature of these Dam Incidents, when did they occur and can descriptive information be provided to the T8FNs? 5. Have any Dam Alerts ever been issued in relation to WAC Bennett Dam or Peace Canyon Dam? If so, what were the reasons for those alerts, when were they issued and can descriptive information be provided to the T8FNs? 6. Have there been any dam safety emergencies, either due to a potential breach or an actual breach, at either the WAC Bennett or Peace Canyon Dams, and if so when and can descriptive information be provided to the T8FNs?
9
SITE C CLEAN ENERGY PROJECT Joint Review Panel Hearing Submission November 25, 2013
A review of the Environmental Impact Statement and Panel Information Requests with respect to the Effects on Fish and Fish Habitat of the Proposed Site C Clean Energy Project
By Greg McKinnon and Michael Lawrence On behalf of the Treaty 8 First Nations
North/South Consultants Inc. 83 Scurfield Blvd. Winnipeg, MB R3Y 1G4 Tel: (204) 284-3366 Fax: (204) 477-4173 Web: www.nscons.ca
Site C Joint Review Panel Hearing Submission Fish and Fish Habitat
Table of Contents Page
1.0 INTRODUCTION ...... 1 1.1 Role of North/South Consultants Inc...... 1 2.0 REVIEW OF AMENDED EIS ...... 2 2.1 EIS Guidelines ...... 2 2.1.1 Fish and Fish Habitat and Spatial Boundaries ...... 2 2.1.2 Fish and Fish Habitat Temporal Boundaries ...... 2 2.1.3 Fish and Fish Habitat Baseline ...... 2 2.1.4 Potential Effects of the Project and Proposed Mitigation ...... 4 2.1.5 Summary of Residual Effects on Fish and Fish Habitat ...... 5 2.2 Proponent Information and Findings ...... 5 2.3 Information Deficiencies ...... 7 3.0 REVIEW OF PANEL INFORMATION REQUESTS AND RESPONSES ...... 13 3.1 Information Deficiencies ...... 13 3.2 Analytical deficiencies ...... 18 4.0 ADVICE CONCERNING SIGNIFICANT RESIDUAL ADVERSE ENVIRONMENTAL EFFECTS ...... 20 4.1 EIS Guidelines ...... 20 4.1.1 Selection of Valued Components for Fish and Fish Habitat ...... 20 4.1.2 Inclusion of Downstream Tributaries as part of the LAA ...... 20 4.1.3 Test of Significance ...... 21 4.2 Findings of the Proponent ...... 21 4.3 Key Concerns Regarding Proponent Findings ...... 22
iii Site C Joint Review Panel Hearing Submission Fish and Fish Habitat
List of Appendices Page APPENDIX 1. PROFESSIONAL PROFILES ...... 23
iv Site C Joint Review Panel Hearing Submission Fish and Fish Habitat
1.0 INTRODUCTION
1.1 ROLE OF NORTH/SOUTH CONSULTANTS INC.
North/South Consultants Inc. (NSC) is an aquatic environmental consulting company based in Winnipeg, Manitoba with branch offices in Vancouver and Victoria, BC. The company specializes in aquatic and resource use studies and has significant experience in freshwater, estuarine and marine environments in Canada and abroad. The company’s primary expertise lies in conducting environmental assessments and long-term monitoring programs for large-scale hydroelectric projects. In this regard, the company provides a wide range of services to both First Nation and hydroelectric utility clients including:
• The design, conduct and analysis of field studies;
• The development of environmental impact statements and supporting documents;
• The provision of strategic advice and expert testimony; and
• The development of mitigation plans and monitoring programs.
North/South Consultants Inc. is under contract to the Treaty 8 Tribal Association to provide assistance to the Treaty 8 First Nations in relation to the environmental assessment of the proposed Site C Project. The professional services provided by NSC include:
• Provision of independent analysis and advice;
• Review and evaluation of environmental information;
• Provision of plain-language summaries and reviews of technical reports;
• Review of the EIS;
• Review of supplementary information filed by the Proponent;
• Testimony before the Joint Review Panel; and
• Review of the Panel report.
1 Site C Joint Review Panel Hearing Submission Fish and Fish Habitat
2.0 REVIEW OF AMENDED EIS
2.1 EIS GUIDELINES
2.1.1 Fish and Fish Habitat and Spatial Boundaries
“The Proponent proposes the LAA and RAA as described in Table 10.2”(EIS Guidelines, Section 10.2.1 and Table 10.2).
Local Assessment Area
• “Peace River in the proposed reservoir area;
• Tributaries entering the proposed reservoir;
• The Peace River downstream of the proposed Site C dam to Many Islands, Alberta;
• Watercourses within the transmission line and roadway rights-of-way;
• Watercourses within the project activity zone (construction materials);
• Riparian areas.”
Regional Assessment Area
• “Peace River from Peace Canyon Dam, BC to Vermilion Chutes, Alberta which is a distance of approximately 865 km.”
2.1.2 Fish and Fish Habitat Temporal Boundaries
“The EIS will describe the temporal boundaries which will reflect the methodology described in Section 8 of these Guidelines” (EIS Guidelines, Section 10.2.2).
2.1.3 Fish and Fish Habitat Baseline
“The fish and fish habitat baseline data will provide an understanding of the existing fish community, distribution, movement and life history parameters of species populations, fish habitat characteristics, biological assemblages, water quality, and production of aquatic invertebrates that support fish populations in the Peace River and its tributaries
2 Site C Joint Review Panel Hearing Submission Fish and Fish Habitat
in the LAA as proposed by the Proponent” (EIS Guidelines, Section 10.2.3). “The Proponent proposes that aquatic conditions in the proposed reservoir and downstream of the dam site will be assessed using a predictive modelling approach and that data will be collected for the following key indicators:
• Fish species including identification of species composition, distribution, relative abundance, migrations and movement patterns, and general life history parameters (including spawning periods) in the LAA. Fish communities will also be described;
• Fish habitat use including an evaluation of the quality and quantity of fish habitats in the LAA. Critical or sensitive areas such as spawning, rearing, and over-wintering habitats and migration routes will be described and/or mapped. Seasonal variability of the habitat will be considered. The criteria used in the evaluation process will be described; and
• Changes in environmental factors in their environment (e.g. food, water temperature, sediment transport).
The EIS will identify sensitive fish species or species of provincial or federal conservation concern, including any species listed in the federal Species at Risk Act (SARA), endangered fish species listed in the BCMOE’s Endangered Species and Ecosystems, Provincial Red and Blue Lists (BCMOE 2010b), and fish species of conservation or ceremonial concern identified by Aboriginal groups. The principles of the BC Conservation Framework will be applied.
Information used to describe baseline conditions and predictive analyses will consist of:
• Traditional land use studies or traditional knowledge made available to the Proponent by Aboriginal groups;
• Peace River and tributaries fish and fish habitat inventories;
• Peace River radio telemetry studies;
• Peace River microchemistry-genetics studies;
• Peace River water quality studies;
• Peace River baseline aquatic productivity studies; and
3 Site C Joint Review Panel Hearing Submission Fish and Fish Habitat
• Site C aquatic productivity modelling, consisting of:
o Multivariate statistical approaches to estimate changes in primary and secondary production based on field data and habitat variables;
o The Proponent proposes to use predictive computer modelling using the CE-QUAL W2 software package originally developed by the US Corps of Engineers for simulating conditions in reservoirs and associated influent and effluent streams to simulate physical and chemical conditions, and primary production;
o The Proponent proposes to us ECOPATH (Christensen and Walters 2004), a steady state model that provides a biological mass balance of an ecosystem; and
o Peace River mercury studies and modelling.”
2.1.4 Potential Effects of the Project and Proposed Mitigation
“The EIS will assess how the Project has the potential to adversely affect fish populations” (EIS Guidelines, Section 10.2.4).
“The potential to adversely affect fish and fish habitat will be assessed by taking into account the potential for the Project to result in changes to the following key aspects of fish and fish habitat:
• Habitat changes created by the reservoir in the mainstem and affected tributaries as well as upstream and downstream of the dam due to flow alterations;
• Upstream and downstream fish migrations by species and life history stage and their potential to be affected by the Project;
• Fish mortality;
• Potential impacts on the genetic diversity of fish populations above and below the project site;
• Project impacts to predator-prey interactions sand expected changes;
• Potential impacts to food web composition and structure; and
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• Potential impacts of gas pressure on fish resulting from water discharge over the structure.
Should potential adverse effects be identified, the potential mitigation and benefit enhancement measures will be identified and will include a description of how the mitigation measures can address the potential adverse effect on fish and fish habitat and any mitigation options being considered to minimize the impacts of the project on fish passage.
The EIS will identify and describe the aquatic and riparian habitat and fisheries resources expected to be impacted by the by the (sic) project. Proposed mitigation measures to offset losses to fisheries resources during construction and operation of the project will be discussed in relation to applicable legislation and DFO policy, and in relation to any applicable Provincial objectives for the management of fisheries. The EIS will provide sufficient detail to demonstrate the extent to which applicable DFO policy objectives can be achieved and will identify measures that are technically, economically and biologically feasible.
The EIS will describe follow up and monitoring plans to determine the effectiveness of measures to mitigate or compensate for the adverse environmental effects of the project.
The EIS will describe project residual effects, and cumulative effects, if applicable, using the residual effects characterization described in Table 8.3. A statement of significance will be provided.”
2.1.5 Summary of Residual Effects on Fish and Fish Habitat
“The EIS will summarize residual effects in a table format as shown in Table 8.4” (EIS Guidelines, Section 10.2.5).
2.2 PROPONENT INFORMATION AND FINDINGS
The following potential residual effects to fish and fish habitat are recognized by the Proponent (see EIS Table 12.20):
Project Phase – Construction
• Loss of habitat due to construction of the dam and generating station, Highway 29, and Hudson’s Hope shoreline protection;
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• Loss of habitat due to construction headpond and reservoir filling;
• Reduced fish health and survival due to sediment inputs by dam and generating station construction;
• Reduced fish health and survival due to sediment inputs from construction headpond and reservoir filling;
• Reduced fish health and survival due to fish entrainment;
• Reduced fish health and survival due to increased total dissolved gas; and
• Hindered fish movement due to obstruction to fish passage.
Project Phase – Operations
• Altered fish habitat due to transformation of reservoir habitat during reservoir operation;
• Altered fish habitat downstream of Site C Dam;
• Reduced fish health and survival due to fish entrainment;
• Reduced fish health and survival due to increased total dissolved gas; and
• Hindered fish movement due to obstruction to fish passage.
A significant residual effect is assigned by the Proponent if the Project component or activity is predicted to result in either;
a) the loss of an indigenous fish species, sub-species, populations, or distinct groups or;
b) a reduction in the long-term average standing stock biomass of the fish community relative to the existing baseline condition (EIS Section 12.6.2).
Using these criteria the Proponent recognizes the following potential residual effects on fish and fish habitat as significant (see Table 12.23):
Project Phase – Construction
• Loss of habitat due to construction headpond and reservoir filling;
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• Reduced fish health and survival due to sediment inputs from construction headpond and reservoir filling; and
• Hindered fish movement due to obstruction to fish passage.
Project Phase – Operations
• Hindered fish movement due to obstruction to fish passage.
Based on criteria “a”, the Proponent predicts that the Project will have “a significant adverse effect on the fish and fish habitat VC as a result of the potential for the loss of indigenous fish populations or distinct groups of fish. The three distinct groups of fish that may be lost are the adfluvial component of the Moberly River Arctic grayling, migratory (adfluvial) bull trout that spawn in the Halfway River, and mountain whitefish that rear in the Peace River and spawn in tributaries of the Peace River or the Peace River mainstem upstream of the Site C Dam site. The loss of these distinct groups occurs because of the loss of river habitat, reduced fish health and survival during construction and reservoir filling, and hindered fish movement.” (EIS Section 12.6.3.2)
Based on criteria “b”, the Proponent predicts that the Project will not have “a significant adverse effect on the fish and fish habitat VC as a result of a reduction in the long-term average standing stock biomass of the fish community relative to the existing baseline condition. Short-term reductions in standing stock biomass are predicted to occur during the construction phase. Over the long term, standing stock biomass in the reservoir and Peace River downstream of the Project in the LAA is predicted to be equal or greater than baseline conditions.” (EIS Section 12.6.3.2)
2.3 INFORMATION DEFICIENCIES
1. Exclusion of downstream tributaries from the Local Assessment Area (LAA)
The exclusion of Peace River tributaries downstream of Site C from the LAA, including the Pine, Beatton, Kiskatinaw and Alces rivers as well as other tributaries downstream to Many Islands, Alberta, represents a shortcoming in the Proponent’s responsibility to determine the significance of potential adverse effects of the Project on area fish populations. No assessment or analysis is provided that would permit either of the following questions to be factually answered:
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• Will predicted effects on fish populations in the Peace River downstream of the proposed Site C development affect fish assemblages in the downstream tributaries?
• Will predicted effects on Peace River water level and flow regime downstream of Site C affect fish access to, and fish use of tributary streams and rivers? If so, to what extent would any such tributary effects influence the fish community within the main stem Peace River?
The exclusion of the downstream tributaries does not appear to be justified, based on information provided in Volume 2 Appendix O, and summarized in Table 12-8 Volume 2 Section 12 that show a number of fish species that move between and utilize both main stem and tributary habitats.
Background
The Proponent proposed (EIS Guidelines Section 10.2.1) that the boundary for the Local assessment Area (defined as the area within which the potential adverse effects of the Project will be assessed) would include (EIS Guidelines Table 10.2):
“Peace River in the proposed reservoir area; Tributaries entering the proposed reservoir; The Peace River downstream of the proposed Site C dam to Many Islands, Alberta; Watercourses within the transmission line and roadway rights-of-way; Watercourses within the project activity zone (construction materials); Riparian areas.”
The Proponent’s rationale for the fish and fish habitat LAA boundary selection (EIS Vol. 2 Section 12.1.5.1) was based on and confined to their anticipation of Project-driven potential changes to:
• Surface water regime (i.e., minimum and maximum flow, seasonal flows, rate of flow, and stage change);
• Water quality (i.e., nutrients available for trophic production, total dissolved gases);
• Water temperature (magnitude of change, seasonal thermal regime);
• Geomorphology and sediment transport (river channel morphology, bedload, and suspended sediment transport); and
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• Downstream ice regime.
The downstream limit of the LAA was set at a point where the physical changes in the river were expected to diminish to the point where the change could no longer have a measurable effect that would influence fish and fish habitat. As noted in Section 11.4.5.2 in Volume 2 Section 11 of the EIS, the average increase in the daily range of water levels due to the Project would be in the order of 0.5 m at the location of the Site C tailrace and reducing to approximately 0.3 m near the Alces River confluence.
BC Hydro has not presented any analysis to demonstrate that the predicted effects on downstream water levels and flows would not have a measurable effect on fish use of, or access to, tributary habitats. As well, BC Hydro’s rationale for the LAA boundary does not take into account the potential adverse effects that may be caused by processes other that direct physical change. This definition excludes fish population effects related to changes that may occur in fish use of downstream tributaries that could result from changes to main stem Peace River population changes.
It would seem more prudent for BC Hydro to consider guidance set out in the BCEAO Guideline for the Selection of Valued Components and Assessment of Potential Effects (Section 3.1.1 Spatial Boundaries) as follows:
“Spatial boundaries encompass the areas within which the project is expected to have potential effects on the selected VCs. Defining appropriate spatial boundaries ensures the consideration of all important potential effects, including cumulative effects.
Spatial boundaries should consider the spatial characteristics of the VC, such as appropriate population units or other VC-specific parameters, to encourage meaningful evaluation of residual effects and determination of significance.”
In summary, the Proponent’s conclusion of “Not significant” (with respect to “Altered fish habitat downstream of Site C Dam”) does not appear to be supported by a defensible analysis of the potential effects of the project on fish use of tributary habitats nor on the interdependence of main stem and tributary fish populations.
2. Transformation of Riverine Habitats
Based on BC Hydro’s criteria for the determination of significance of adverse effects it would seem that the permanent alteration of fish habitat due to transformation from riverine to reservoir habitat should be considered a significant adverse effect. This effect (irreversible loss of key riverine habitats required for some distinct groups of fish when
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the reservoir is filled) would persist beyond the construction phase and extend though the operational phase.
BC Hydro provided a summary table (Table 12.24) highlighting significant residual effects on the fish and fish habitat VC.
Habitat losses associated with construction headpond and reservoir filling were categorized as “Significant”. In accompanying text (EIS Section 12.6.3.1), BC Hydro explains:
“The residual effects resulting from habitat loss due to the construction headpond and reservoir filling would be adverse and significant, because they would be sufficient to reduce the abundance of fish populations in the river over the spatial extent of the headpond during the diversion period, and would result in an irreversible loss of key riverine habitats required for some distinct groups of fish when the reservoir is filled.”
This statement would seem to clearly indicate that the Proponent is of the view that loss of key riverine habitats required for some distinct groups of fish will be a longstanding feature of dam operation.
However, “Altered fish habitat due to transformation from river to reservoir habitat” during the operation phase was not considered to be a significant effect (see Table 12.24), despite the certainty that habitat losses would persist beyond the construction phase and extend though the operational phase.
3. Entrainment
BC Hydro concludes that the effects of reduced fish health and survival due to fish entrainment will be “Not significant”. However, the accompanying text (EIS Section 12.4.4.2) suggests the potential for a calculated mortality rate particularly for large fish of up to 40% (i.e., survival rate >60%), as a consequence of entrainment through the generating station and turbines. No prediction of survival for fish entrained over the spillway during operations is provided other than it is estimated to be “high”*.
* Section 12.4.3.3 (p. 12.55) notes that the proposed spillway configuration at Site C is similar to that of the Columbia River system dams and that survival rates for the latter are in the range of 98 to 99%. However the Proponent also notes that the proposed spillway at Site C has a higher head than the Columbia River
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In combination with the unknown performance of planned strategies to allow for subsequent return upstream passage past Site C, it is possible that entrainment will result in a permanent loss of all entrained fish from areas upstream of Site C.
In IR gov_0010-267 the BC Government Natural Resource Sector Agencies noted that “Entrainment is equivalent to mortality if the fish can’t return.” In gov_0010-27, the BC Government Natural Resource Sector Agencies also noted “that the EIS underestimates the likelihood of loss of some fish populations. For example, reviewers disagree that the probability of losing the migratory Halfway River bull trout is Low… Also all entrainment represents a loss to the upstream population (without upstream passage for which effectiveness has been proven). The effectiveness of trap-and-haul is unproven, so their migration to areas upstream of the dam could be lost or reduced substantially.”
In light of the above, the Proponent’s conclusion (EIS Table 12.22) that reduced fish health and survival due to downstream fish entrainment are anticipated to be of “low” magnitude and duration and not significant (EIS Table 12.23) appears to be unsupported and unsubstantiated. The Proponent has not indicated whether the species that will be reservoir-based can persist despite losses due to entrainment.
4. Cumulative Effects of the Site C and Dunvegan projects on riverine populations
Information provided by the Proponent (see following) would indicate that there is potential for cumulative effects from the proposed Dunvegan Project and the Site C project on riverine populations of goldeye, walleye, and perhaps other fish species that have extended movement patterns.
Site C Clean Energy Project, Volume 2 Appendix O, Fish and Fish Habitat Technical Data Report
Goldeye
“Radio-tagged goldeye moved long distances and the total range of movement encompassed approximately 700 km of river from Vermillion Chutes to the Pine River confluence in British Columbia. Although the majority of goldeye were
facilities and that survival will likely be lower at Site C than the existing Columbia River facilities. No further estimate of spillway survival at Site C was located.
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highly migratory, not all fish moved past the Dunvegan site during annual migrations. A portion of the sample population remained downstream. Peak upstream migrations were most likely to occur between May and July. Downstream were most likely to occur between August and October when fish returned to wintering habitats.
Radio-tagged goldeye frequented confluence areas of several tributaries, generally were not recorded moving upstream into the tributary. Exceptions include upstream migrations by goldeye into the Smoky River near the Town of Peace River, Alberta, as well as the Clear River and Beatton River near the B.C./Alberta boundary. The presence of goldeye in the tributaries during the spawning period suggested that tributaries may be used for spawning by goldeye.
Walleye
Most radio-tagged walleye moved moderate distances during the studies, while some fish completed longer movements. The total range of the sample population was approximately 500 kilometers from downstream of the Notikewin River (downstream of Dunvegan) confluence to the Pine River confluence in British Columbia.
Walleye exhibited seasonal movement patterns. Fish moved upstream during spring and early summer, and then downstream in fall.”
The potential for cumulative effects resulting from the combined effects of Site C development and future development at Dunvegan appears to exist, and needs to be accounted for when considering the potential for significant adverse effects on the fish community downstream of Site C. No particular category in EIS Table 12.3 appears to address the potential for fish community effects downstream of Site C, taking into consideration the potential for significant adverse effects to fish communities of Site C acting in concert with the Dunvegan Project.
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3.0 REVIEW OF PANEL INFORMATION REQUESTS AND RESPONSES
3.1 INFORMATION DEFICIENCIES
Panel Request Number 11: Fish and Fish Habitat Compensation Plan
JRP Question: “It is recognized that there is a future permitting process, however, more detail on the plan is requested to help the Panel understand how the Proponent’s plans will effectively compensate for the adverse effects of the Project. Provide a conceptual fish habitat compensation plan. The plan should discuss elements including:
• Who would be involved in the planning and implementation of the plan, and how;
• What would be the objectives of the plan;
• What would be the measures of success;
• What would be the timeline for providing the final plan;
• How will the proposed plan address identified effects of the project;
• What changes are expected to fish habitat after implementation of the plan; and
• How will the plan account for navigational concerns.”
Comments on Proponent Response: In its response the Proponent does not provide a conceptual fish habitat compensation plan for the Site C project nor specific details as requested. As a result the Proponent fails to provide sufficient information to allow the Panel and intervenors to understand how the Proponent’s plans will effectively compensate for the adverse effects of the Project.
It remains unclear as to what Project- and species-specific conceptual habitat compensation measures are being considered by BC Hydro to offset predicted habitat changes.
Panel Request Number 12: Fish and Fish – Sedimentation and Siltation
JRP Question: “Provide an assessment of the effects of sedimentation and siltation on fish and fish habitat. Identify how sedimentation may impact the eventual success of the fish habitat compensation plan.”
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Comments on Proponent Response: In its response to the issue of sedimentation, the Proponent provides only a general prediction that “sediment deposition is predicted to affect species composition in the short term (1 to 10 years), as species that are able to rapidly exploit new habitats, that are tolerant of perturbations to the aquatic environment (e.g., elevated suspended sediment concentrations and sedimentation of clean bed materials), and that presently utilize tributary habitats would quickly dominate the system”. The response does not provide information of the specificity of effects (e.g., location, species) required to understand how sedimentation might impact the eventual success of the fish habitat compensation plan.
In its response to the issue of siltation, the Proponent notes only that: “in the reservoir, the seasonal pattern of suspended sediment affects the competitive interaction among fish species and the predicted composition of the fish community”. The description of potential effects of sediment deposition referenced (EIS Section 12.4.1.2) does not enlighten the response to this question. The referenced text simply states that existing riverbed materials would be altered.
It is clear from the EIS that sediment inputs from erosion of newly inundated areas outside of the active Peace River channel and sedimentation caused by deposition of suspended sediments would alter existing clean riverbed materials.
The Proponent’s assertion that “compensation works in the Site C reservoir would take into account predicted and observed sediment deposition rates” does not help to understand the extent (in time and space) to which sedimentation rates and locations would interfere with habitat compensation measures. More site- and Project-specific information and analysis are needed to reliably defend the Proponent’s assurance that “sedimentation would not limit the effectiveness of habitat compensation”.
Panel Request Number 78: Fish and Fish Habitat – fish bearing watercourses
JRP Question: “Document field work, studies or supporting data that were used in these determinations. Include a map of the Project Activity Zone showing the locations of minor and major tributaries, in or adjacent to which Project activities will be conducted.”
Comments on Proponent Response: No comment.
JRP Letter (dated November 7, 2013) Sufficiency of Information Site C Clean Energy Project amended Environmental Impact Statement – Registry #1651:
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“In information request 78, relating to Fish and Fish Habitat – fish bearing watercourses, the Panel requested the Proponent to document field work, studies or supporting data that were used to determine the fish-bearing status of the watercourses in the project area.
The Proponent listed the study “Fish habitat surveys in all minor and major tributaries affected by the Site C Clean Energy Project reservoir (AMEC and LGL 2008b; Mainstream Aquatics Ltd 2009a, 2009b, 2009c)”, but did not provide the supporting data from this study for the determinations of fish bearing status.
Please summarize the study Fish habitat surveys in all minor and major tributaries affected by the Site C Clean Energy Project reservoir by providing a table that lists all water bodies (rivers, streams, lakes, etc.) in or adjacent to which Project activities will be conducted, and their fish bearing status. The Proponent may exclude the Peace River and the tributaries directly entering the proposed reservoir, with the exception of the Moberly River, as the proposed transmission corridor intersects this river, as shown in figure 4.27.”
Comments on Proponent Response: Proponent response (Additional Information Request Number 5, dated November 20, 2013) does not include tributaries downstream of the proposed Site C Project as far as Many Islands, with the exception of the Pine River. It is clear that Project activities, particularly Project operation, will have a demonstrable effect downstream as far as Many Islands, including at least the Peace River mainstem and the confluence areas of all major and minor tributaries. As noted in Section 11.4.5.2 of the EIS, the average increase in the daily range of water levels due to the Project would be in the order of 0.5 m at the location of the Site C tailrace and reducing to approximately 0.3 m near the Alces River confluence. Excursions beyond the average should be presented as well as the potential for consequential biological effects.
It is also noteworthy that in its response the Proponent indicates (Additional Information Request Number 5, Section 2.0, page 2) that “Fish surveys for other minor and major tributaries were not conducted. For the purposes of the effects assessment of Fish and Fish Habitat, these other minor and major tributaries were assumed to be fish-bearing or influence fish-bearing habitat downstream.”
While it is acknowledged that the Proponent has assumed fish presence in the absence of evidence to the contrary for these tributaries, fish habitat surveys would presumably still be required to locate important fish habitats on these tributaries (or portions of tributaries)
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that have the potential to be affected by the Project, to assess the relationship between tributary and mainstem populations and the potential effects of the Project on these, and to propose mitigation measures as necessary to eliminate or reduce residual effects.
Panel Request Number 79: Fish and Fish – habitat issues
JRP Question: “Using existing information, provide a summary of the availability of habitat types affected by the reservoir and the habitat types affected downstream of the dam.
In the summary, detail:
The total area (m2) of the each fluvial habitat type (i.e., riffles, pools, runs, side channels) that would be lost through inundation of the Peace River mainstem and lower tributary sections of the proposed Site C reservoir. Please also include the total baseline area (m2) of each habitat type in the table for ease of comparison;
The total area (m2) of each fluvial habitat type that will be affected downstream of the dam site during normal operation of the Project for the reach between Site C and the confluence of the Pine River, and the reach between the Pine River and Many Islands, Alberta. Please also include the total baseline area (m2) of each habitat type in these reaches for ease of comparison.”
Comments on Proponent Response: In its response the Proponent acknowledges that it cannot provide the information requested by the Panel, i.e., “The total area of fluvial habitat types inundated by the reservoir and in the LAA downstream to Many Islands is not available from existing information.” In particular no information was provided for the lower sections of tributaries downstream of the Site C location to Many Islands that will be subject to increased water level fluctuations during Project operation.
Panel Request Number 80: Harvest of Fish - Biomass
JRP Question: “In order to clearly explain how the change from a river habitat to a reservoir habitat may change the availability of harvestable species in the reservoir, please provide a summary table showing harvestable species composition and estimated biomass for both the current case (river) and the case post-filling (reservoir). Explanatory comments are welcome for each species.”
Comments on Proponent Response:
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Table 1 of the BC Hydro response shows estimates of expected changes to harvestable fish species’ biomass in river habitats that will be inundated and in the Site C reservoir over the longer term, based on their most likely set of assumptions. If one adjusts the predicted changes in biomass to account for the 3.3-fold increase in wetted area, it would appear that the Site C reservoir biomass density (fish mass per unit area) is expected to change over the long term as follows:
• Rainbow trout biomass density may be expected to decrease to 0.35 that of existing conditions;
• Bull trout biomass density may be expected to decrease to 0.56 that of existing conditions;
• Arctic grayling are not expected to be present in the reservoir;
• Walleye are not expected to be present in the reservoir; and
• Mountain whitefish biomass density may be expected to decrease to 0.02 that of existing conditions.
On the other hand:
• Lake trout biomass density may be expected to increase from near zero to 0.04 tonnes;
• Northern pike biomass density may be expected to increase to 1.55 times that of the existing condition;
• Burbot biomass density may be expected to increase to 3.3 times that of the existing condition;
• Lake whitefish biomass may be expected to increase from near zero to 0.11 tonnes; and
• Kokanee biomass density may be expected to increase 86 times that of the existing condition.
Overall, harvestable fish biomass density in the reservoir may be expected to decrease to approximately one-half (55%) of what currently exists.
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• The “non-Kokanee” fish biomass density in the reservoir may be expected to decrease to 16% of what currently exists.
• The non-Kokanee fish biomass is expected to decrease from 17.21 tonnes to 8.96 tonnes.
An assessment of the effect of these changes on the harvest of fish (effects on fishing effort, effects on opportunity to harvest preferred species) does not appear to have been presented in the EIS.
3.2 ANALYTICAL DEFICIENCIES
The Canadian Environmental Assessment Agency (ceaa-acee.gc.ca) provides a reference guide with respect to determining whether a project is likely to cause significant adverse environmental effects. The Guide notes that there are several criteria that should be taken into account in deciding whether the adverse effects of a Project are significant. These are:
• Magnitude of the adverse environmental effect;
• Geographic extent of the adverse environmental effects;
• Duration and frequency of the adverse environmental effects;
• Degree to which the adverse environmental effects are reversible or irreversible; and
• Ecological context.
While the Proponent provides similar criteria in EIS Table 12.21 Characterization Criteria for Residual Effects on Fish and Fish Habitat and EIS Table 12.22 Characterization of Residual Fish and Fish Habitat Effects (i.e., direction, magnitude, geographical extent, frequency, duration, reversibility, context, level of confidence, probability), it does not appear to utilize these in any meaningful way in its determination of significance. Rather the Proponent indicates in EIS Section 12.6.2 that: “the significance of each residual effect is evaluated taking into consideration the criteria in Table 12.22, existing knowledge about the fish and fish habitat, and the likely effectiveness of mitigation. A significant residual affect (sic) is assigned if the Project component or activity is predicted to result in either:
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a) the loss or an indigenous fish species, sub-species, populations, or distinct groups or,
b) a reduction in the long-term average standing stock biomass of the fish community relative to the existing baseline condition.”
In the first instance, the use of this test of “significance” would appear to set a different standard than that suggested by the CEAA (and portrayed in Table 12.21), and its use by the Proponent suggests an inconsistency in the application of criteria for the determination of “significance”. In addition, in the second instance, it does not appear that the Proponent has indeed assessed all fish species as suggested in the definition. In fact, it is unclear which fish species are actually being assessed in the EIS and whether these, in each case, are intended to represent a broader community of fish (see Section 4.1.1 below). In its response to IR ab_0001-425 the Proponent indicates that it did not utilize the concept of indicator species in the assessment of the effects of the Project on fish and fish habitat and that “for some analyses a broader suite of species was used”.
No assessment of baseline conditions and potential effects of all fish species in the LAA could be found in the EIS, either as a result of an indicator species approach nor an examination of all fish species.
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4.0 ADVICE CONCERNING SIGNIFICANT RESIDUAL ADVERSE ENVIRONMENTAL EFFECTS
4.1 EIS GUIDELINES
4.1.1 Selection of Valued Components for Fish and Fish Habitat
The Proponent utilizes the broad category of Fish and Fish Habitat as the Valued Component (VC) for the aquatic ecosystem which may not be appropriate given the species specific (and aquatic trophic level and fish assemblage) impacts that may be expected to occur as a result of the project. While the broad category of fish and fish habitat as a VC may suit the assessment approach adopted by the Proponent, it does not address the more species-specific interests and concerns of the First Nations’ harvesters (in particular) and area resource users (in general).
4.1.2 Inclusion of Downstream Tributaries as part of the LAA
The EIS Guidelines Section 8.4.1 (Table 8.2) identifies that the Proponent has proposed a definition of the Local Assessment Area as “the area within which the potential adverse effects of the Project will be assessed”. EIS Guidelines Section 10.2 indicates that the Proponent specifically defines the Local Assessment Area (Table 10.2) as “Peace River in the proposed reservoir area; tributaries entering the proposed reservoir; the Peace River downstream of the proposed Site C dam to Many Islands, Alberta; watercourses within the transmission line and roadway rights-of-way; watercourses within the project activity zone (construction materials); and riparian areas.”
It is noteworthy that downstream tributaries of the Peace River are, by definition, excluded from the LAA and as such are excluded from the EIS effects assessment. This despite the fact that the Proponent notes (EIS Section 12.4.2.2 Downstream Habitat Changes) that “the increase in the daily range of water levels due to the Project would be on the order of 0.5 m at the location of the Site C tailrace and reducing to approximately 0.3 m near the Alces River confluence.” An increase in daily water level range downstream may have the potential to adversely affect the fish fauna that utilize the lower reaches of tributaries and in particular, confluence areas. However, many of these areas have not been subject to baseline studies and effects assessment.
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4.1.3 Test of Significance
With respect to fish and fish habitat, the Proponent defines the following test of significance (EIS Section 12.6.2):
“A significant residual effect is assigned if the Project component or activity is predicted to result in either:
a) the loss of an indigenous fish species, sub-species, populations, or distinct groups or,
b) a reduction in the long-term average standing stock biomass of the fish community relative to the existing baseline condition.”
This would appear to be a non-standard test of significance not clearly reconcilable with the criteria provided in the Canadian Environmental Assessment Agency “Reference Guide – Determining Whether a Project is Likely to Cause Significant Adverse Environmental Effects” or the criteria provided by the Proponent in EIS Table 12.21 (Characterization Criteria for Residual Effects on Fish and Fish Habitat), or EIS Table 12.22 (Characterization of Residual Fish and Fish Habitat Effects).
4.2 FINDINGS OF THE PROPONENT
The Proponent recognizes the following significant effects on fish and fish habitat.
Project Phase – Construction
1. Result in loss of distinct fish group (criterion a):
• Loss of habitat due to construction headpond and reservoir filling;
• Reduced fish health and survival due to sediment inputs from construction headpond and reservoir filling; and
• Hindered fish movement due to obstruction to fish passage.
2. Result in long-term net biomass (criterion b):
• None
21 Site C Joint Review Panel Hearing Submission Fish and Fish Habitat
Project Phase – Operations:
1. Result in loss of distinct fish group (criterion a):
• Hindered fish movement due to obstruction to fish passage
2. Result in long-term net biomass (criterion b):
• None.
4.3 KEY CONCERNS REGARDING PROPONENT FINDINGS
• The Proponent did not assess the potential adverse effects of the Project on fish and fish habitat of downstream tributaries and the role played by these tributaries in sustaining Peace River fish populations both upstream and downstream of the proposed Site C location.
• The Proponent did not fully assess the implications of entrainment (coupled with the possibility of failure of planned fish passage facility to facilitate return upstream movement for those fish that are not killed or injured) on upstream fish populations.
• The Proponent did not assess the potential for cumulative effects of the proposed Dunvegan Project and the Site C Project on riverine populations of goldeye, walleye, and any other fish species that demonstrate extended movement patterns in the area.
• The Proponent presents the view that, as a result of construction headpond and reservoir filling, the loss of key riverine habitats required for some distinct groups of fish will be a longstanding feature of dam operation. However, “Altered fish habitat due to transformation from river to reservoir habitat” during the operation phase was not considered to be a significant effect (see Table 12.24), despite the certainty that habitat losses would persist beyond the construction phase and extend through the operational phase.
22 Site C Joint Review Panel Hearing Submission Fish and Fish Habitat
APPENDIX 1.
PROFESSIONAL PROFILES
23 Site C Joint Review Panel Hearing Submission Fish and Fish Habitat
Greg McKinnon, BSc., R.P. Bio., Senior Project Manager North/South Consultants Inc, Victoria, BC
EDUCATION 1973 BSc., Zoology Major, Brandon University
EXPERIENCE IN NATURAL RESOURCE MANAGEMENT
• Thirty-nine years of experience in fisheries, forestry and wildlife management and environmental assessment; • Senior positions held in provincial and/or federal government departments in Manitoba, Alberta and British Columbia, including the Department of Fisheries and Oceans, Natural Resources Canada and the British Columbia Ministry of Environment, Lands and Parks as well as in private aquatic environmental consulting (North South Consultants Inc.).
AREAS OF EXPERTISE
• Natural resource management – legislation, policy and guidelines;
• Delivery of federal environmental impact assessment process, including for large-scale hydroelectric generation facilities in Manitoba (e.g., Conawapa GS);
• Strategic planning and interdisciplinary project management;
• Research/management liaison;
• Fish habitat and riparian protection;
• Climate change impacts and adaptation; and
• Species-at-risk legislation, policies, and processes.
EMPL0YMENT HISTORY
2005 – Present Senior Project Manager, North South Consultants Inc.
2002 – 2005 Forest Sector National Coordinator Canadian Climate Impacts and Adaptation Research Network Natural Resources Canada
1993 – 2005 Head, Ecosystem Management Unit BC Ministry of Environment, Lands and Parks
24 Site C Joint Review Panel Hearing Submission Fish and Fish Habitat
1988 – 1993 Fish Habitat Management Coordinator Department of Fisheries and Oceans, Winnipeg
1973 – 1988 Resource Impact Biologist Department of Fisheries and Oceans, Winnipeg
MAJOR ENVIRONMENTAL ASSESSMENT (HYDROELECTRIC) PROJECTS MANAGED
Pointe du Bois Spillway Replacement Project (Manitoba Hydro)
Responsible for directing work activities of sub-consultants, and development of the EIS for all components related to the bio-physical environment (including aquatic and terrestrial habitats, land and resource use, water resource engineering issues, and ecosystem monitoring activities) for the proposed re- development of the Pointe du Bois spillway on the Winnipeg River.
Lower Churchill Hydroelectric Generation Project (Innu Nation)
Responsible for directing work activities of North/South staff and sub-consultants in support of the Innu Nations’ environmental evaluation of the Lower Churchill Project in Labrador. The scope of the work provided to the Innu Nation included provision of independent analysis and advice, expert review and evaluation of environmental baseline studies and related documents, preparation of information requests prior to and during the environmental assessment, and review and evaluation of draft and final environmental impact statements.
Slave Falls Tramway Conversion Project (Manitoba Hydro)
Responsible for directing work activities of North/South staff and other consultants focused on the bio- physical environment, in support of the environmental assessment review of the Slave Falls Tramway Conversion Project in western Manitoba.
Conawapa Hydroelectric Generation Project (Department of Fisheries and Oceans)
On behalf of DFO, provided liaison with the Government of Manitoba and Manitoba Hydro on environmental issues related to the proposed Conawapa Hydroelectric Project on the Nelson River in Manitoba, provided advice on environmental assessment and the joint federal/provincial review of the project, represented DFO on various inter-departmental and inter-governmental committees and task forces, and represented the federal government as lead in scoping hearings.
25 Site C Joint Review Panel Hearing Submission Fish and Fish Habitat
Michael Lawrence, B.Sc. A. (Hon) North/South Consultants Inc. Winnipeg, MB
EDUCATION 1968 B.Sc. A., University of Guelph
EXPERIENCE IN NATURAL RESOURCE MANAGEMENT
• Over forty years of experience in fish and fish habitat management and environmental assessment;
• Senior positions held in both the federal government (Department of Fisheries and Oceans) and private aquatic environmental consulting (North/South Consultants Inc.).
AREAS OF EXPERTISE
• Environmental impact assessment;
• Project management;
• Aquatic habitat compensation and enhancement projects;
• Environmental protection planning;
• Environmental legislation; and
• Monitoring programs.
EMPLOYMENT HISTORY 1990 – 2009 Environmental Assessment Manager / Principal North South Consultants Inc.
1971 – 1990 Aquatic Biologist Department of Fisheries and Oceans, Winnipeg
MAJOR ENVIRONMENTAL ASSESSMENT (HYDROELECTRIC) PROJECTS MANAGED
Split Lake Aquatic Effects Monitoring Program (Tataskweyak Environmental Monitoring Agency)
Developed a long-term, ecosystem-based aquatic environment effects monitoring program for the Split Lake Cree First Nation in response to ongoing and potential future effects of hydroelectric generating facilities on Split Lake.
Bipole III Transmission Project (Manitoba Hydro)
Responsible for the development of aquatic stream classification and impact assessment methodologies for streams in northern and eastern Manitoba with respect to the Bipole III project.
26 Site C Joint Review Panel Hearing Submission Fish and Fish Habitat
Conawapa Hydroelectric Generation Project (Manitoba Hydro)
Responsible for preparation of the aquatic component of the environmental impact statement for the Conawapa Hydroelectric Project. Responsible for conducting biological and oceanographic studies of the Churchill and Nelson River estuaries and nearby Hudson Bay nearshore environments, towards an understanding of the effects of river diversions on estuarine biology. Also conducted a workshop and published proceedings on and examination of the potential impact of changes in Nelson River flow regimes on the beluga of Hudson Bay.
Aishihik Lake Hydroelectric Generation Re-Licensing (Yukon Energy Corporation)
Responsible for designing and overseeing the conduct of fisheries studies for the environmental impact assessment for relicensing of the Aishihik Lake Generating Station in the Yukon.
Glenboro to Harvey Transmission Line Project (Manitoba Hydro)
Responsible for managing the biophysical component for the site selection and environmental impact assessment of the Glenboro to Harvey transmission and station project in southern Manitoba..
27 SITE C CLEAN ENERGY PROJECT Panel Hearing Submission November 25, 2013
Cumulative Effects on Vegetation and Ecological Communities
Annette Luttermann PhD on behalf of the Treaty 8 First Nations
© 2013 Treaty 8 Tribal Association
Table of Contents 1 INTRODUCTION ...... 4 1.1 Role of A. Luttermann, PhD ...... 4 2 REVIEW OF THE AMENDED EIS ...... 4 2.1 Introduction ...... 4 2.2 EIS Guidelines ...... 7 2.3 Proponent Information and Findings ...... 12 2.4 Informational Deficiencies ...... 13 2.5 Analytical Deficiencies ...... 15 3 REVIEW OF THE PANEL INFORMATION REQUESTS AND RESPONSES ...... 16 3.1 Informational Deficiencies ...... 16 3.2 Analytical Deficiencies ...... 20 4 ADVICE CONCERNING SIGNIFICANT RESIDUAL ADVERSE ENVIRONMENTAL EFFECTS ...... 22 4.1 EIS Guidelines ...... 22 4.2 Findings of the Proponent ...... 22 4.3 Key Concerns Regarding Proponent Findings ...... 23 REFERENCES ...... 24 APPENDIX A – PROFESSIONAL PROFILES ...... 25 APPENDIX B ...... 26
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1 INTRODUCTION
1.1 Role of A. Luttermann, PhD I have studied the ecological effects of large-scale hydroelectric development primarily in northern regions. The focus of my own research has been on the effects of flow regulation on the structure and composition of riparian vegetation communities. I have conducted extensive review of the global scientific literature on vegetation changes due to hydrological change in boreal rivers in particular. My direct experience includes work on rivers with large dams in Québec, Newfoundland and Labrador, Ontario, Manitoba and British Columbia. I have worked with Aboriginal Peoples in Canada for over 20 years, documenting observations and perspectives on the landscape level changes in riverine environments related to hydroelectric infrastructure. This work has included conceptual analysis of the purpose and practice of environmental assessment, and especially cumulative effects assessment on river ecosystems. Treaty 8 Tribal Association requested that I review the Site C EIS to determine whether it adequately assesses the potential cumulative effects on vegetation and ecological communities. I have also reviewed the sections on wildlife and aquatic habitats.
2 REVIEW OF THE AMENDED EIS
2.1 Introduction My review focuses on whether the EIS and its amendments adequately address questions related to the cumulative effects of an additional dam and generating station on the Peace River system combined with other past and future projects. In its introductory statement, the EIS Executive Summary clearly explains that the “Site C Clean Energy Project” would be a third dam and generating station on the Peace River in northeast B.C. The Peace River system is therefore recognized as a landscape entity in the EIS. However, it is not treated as such in the definitions of study areas. Large rivers are recognized by ecologists as landscape features, acting as corridors that create and maintain regional ecological diversity over time. Riverine hydrological processes and the complex morphology of rivers are landscape elements that are directly and extensively affected by hydroelectric development. Despite this knowledge, a number of spurious arguments are made in the EIS to restrict the temporal and spatial
November 2013 4 © 2013 Treaty 8 Tribal Association boundaries of the cumulative effects assessment and exclude the existing upstream dams and generating stations from comprehensive analysis. This approach severely limits the ability of this EIS to communicate an appreciation of the extent of cumulative adverse environmental and cultural effects of multiple dams and generating stations on this river. Long-term habitat loss and conversion has occurred over a very large portion of the watershed, and the consequences of this for regional ecological health into the future are not yet well understood. This uncertainty must be better explained when the significance of cumulative effects is discussed. The approach to defining temporal and spatial boundaries for assessment also constrains the effectiveness of this EIS to help the public and regulators understand whether the mitigation and adaptive management effort that is proposed is adequate and equal to the scale of cumulative ecological effects on this river system. Significant adverse effects are predicted in the regional assessment areas for vegetation and ecological communities, and wildlife resources, “even without this Project”. Given this prediction, and given the fact that it is known that existing hydroelectric developments have already had an extensive impact on these valued ecosystem components, it is even more imperative that a comprehensive approach to basin-wide cumulative effects assessment is carried out prior to further river regulation. An approach to cumulative effects assessment on a river that includes at least all of the adjacent reaches that have been directly affected by dams and impoundments in the regional study area is the most rational methodology. Certainly, previous work that has been conducted in other river basins where BC Hydro operates dams, such as the Columbia River, defines cumulative environmental effects as an aggregate of multiple dam and reservoir footprints on a river basin as an integrated ecological system (Moody et al. 2007, Utzig and Schmidt 2011), The evidence and argument provided by BC Hydro in the responses to information requests for not doing this work in the Peace River as part of this EA are not defensible for the following reasons:
1. The effects of existing projects cannot be considered to be simply “reflected” in the description of current conditions. Assessment requires understanding and analysis. This EIS includes limited analysis of the mechanisms and results of change due to past projects, for the entire geographical scope affected by these projects. In addition, the EIS acknowledges that the riparian vegetation communities downstream of existing control structures have not yet “fully adjusted” to the effects of flow changes.
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2. The boundaries of the RAA are not “conservatively large” as claimed in the EIS. They do not recognize the importance of connectivity of the original main river corridor especially as it connects through a major mountain range, east west, as well as to a major north south flyway. This connectivity is important to species distribution and resilience over time. The movement of species upstream and downstream, as well as laterally across large mountain ranges and large bodies of water is significant over time. 3. The watershed where it is directly affected by hydroelectric development should be considered the minimum RAA for assessment of cumulative ecological change over time. Even this would not be “conservatively large”. The scale of the assessment must be adequate to the scale of the cumulative effects. 4. With regards to the effects of hydroelectric on Aboriginal Peoples, a study area cannot be considered to be conservatively large, when large portions of Treaty territory are excluded from cumulative effects assessment. 5. The criteria of spatial and temporal overlap are applied in a manner that comes close to negating the purpose of cumulative effects assessment. If a landscape is characterized partly by the connectivity provided by a major river system, and if the valley bottom habitats, and large river aquatic habitats are relatively rare on the landscape, and if those habitats are selectively and incrementally destroyed by that type of development, those habitats within that river system should be considered to be a valued ecosystem component in aggregate. Additional projects within the river system therefore overlap in space and time with all past habitat losses within that river system. This is especially so for all habitat loss that is essentially permanent. 6. There are reliable spatial data for pre-hydroelectric development time periods throughout the upper watershed. These data provide a substantial amount of qualitative and quantitative information about pre-regulation environments (Luttermann 2013). 7. There are historical descriptive accounts that provide some information about species distribution in the watershed. 8. The fact that we do not have comprehensive quantitative data on population density of wildlife should not preclude use of the information that does exist based on the argument that the data are not reliable. We also lack comprehensive quantitative data for most species in the current environment that is being used as a baseline. How reliable then are the results of the EIS to predict the future?
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9. There are data that can inform us about certain riverine processes, particularly hydrological records, prior to the first two hydroelectric developments. The reliability of any historic or recent hydrological data must be understood also in the context of climate change, which could very well confound predictions based on current conditions. 10. An adequate understanding of the current state of riverine habitats throughout the river system compared to past habitats affected by hydroelectric development, and within the context of current and future operations, is necessary to fully consider reasonable mitigation opportunities. 11. The aggregate effects of multiple dams on this river system as a whole are of primary concern to many readers of the EIS. This was identified by members of the Working Group during the scoping process, and should be of concern to decision makers and regulators.
2.2 EIS Guidelines
2.2.1 Vegetation and Ecological Communities Spatial Boundaries (EIS Guidelines, Section 11.2.1) The Proponent proposes the LAA and RAA as described in (Table 11.2). Local Assessment Area An approximate 4-km-wide corridor centered on the Peace River from Hudson’s Hope to the Alberta border; a 1-km-wide corridor centered on the existing 138 kV wood pole transmission line from the Peace Canyon Dam to Taylor and Fort St. John; a 400 m corridor centered on roads identified for upgrading; a 1-km wide corridor centered on new roads; and a 500 m buffer around the proposed quarry and till sites. Regional Assessment Area Peace Lowlands Ecosection
2.2.2 Vegetation and Ecological Communities Temporal Boundaries (EIS Guidelines, Section 11.2.2) The EIS will describe the temporal boundaries which will reflect the methodology described in Section 8 of these EIS Guidelines.
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2.2.3 Vegetation and Ecological Communities Baseline (EIS Guidelines, Section 11.2.3) The EIS will consider the following in describing the Vegetation and Ecological Communities baseline:
• Important habitats found within the project area including shoreline habitats, banks, wetlands and floodplain;
• Aquatic and riparian vegetation;
• A description of the composition, distribution and abundance of terrestrial flora; and
• Existing patterns of habitat and ecosystem alteration.
Mapping information will provide an understanding of the existing location and spatial extent of these ecosystems within the LAA as proposed by the Proponent using completed ecosystem mapping and field verification. Key indicators will include:
• Total area (hectares) of each ecosystem type, including wetlands, within the mapped area;
• Area (hectares) of each ecosystem by structural stage will be calculated for each of the mapped ecosystems using the final map databases. The 7 class structural stage classification system will be used (BCMOE and BCMFLNRO 1998);
• Number of unique ecosystems mapped and their distribution within the technical study area described; and
• Number of and distribution of rare plant species observed within the technical study area.
2.2.4 Potential Effects of the Project and Proposed Mitigation (EIS Guidelines, Section 11.2.4) The EIS will assess how the Project has the potential to adversely affect terrestrial habitat.
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The Proponent proposes to assess the potential to adversely affect Vegetation and Ecological Communities by taking into account the potential for the Project to result in changes to the following key aspects:
• The area of vegetation/ecological community loss, assessed by overlaying the project activity zone on the ecosystem maps and conducting a GIS-based analysis of the area lost due to project activities;
• The area of vegetation/ecological community fragmentation, identified through GIS analysis;
• The area of temporary vegetation/ecological community disturbance will be assessed by overlaying the project activity zone on the ecosystem maps and conducting a GIS-based analysis of the area disturbed;
• The long-term effects of maintenance of vegetation/ecological communities in an early seral stage along the transmission line and around the dam site; and
• Wetlands.
Should potential adverse effects be identified, the potential mitigation measures will be identified (including a wetland compensation plan, if applicable) and will include a description of how the mitigation measures can address the potential adverse effect.
The EIS will describe project residual effects, and cumulative effects, if applicable, using the residual effects characterization described in Table 8.3. A statement of significance will be provided.
2.2.5 Summary of Residual Effects on Vegetation and Ecological Communities (EIS Guidelines, Section 11.2.5) The EIS will summarize residual effects in a table format as shown in Table 8.4
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2.2.6 Cumulative Effects Assessment (EIS Guidelines, Section 8.5.3) The EIS will provide an assessment of the cumulative effects that are likely to result from the Project in combination with other projects or activities that have been or will be carried out. Federal and provincial guidance will be consulted (e.g., Agency 2007c, BCEAO 2010, Hegmann et al. 1999). A cumulative effects assessment of the Project on a VC will be conducted if the potential residual adverse effect of the Project on that VC has a spatial and temporal overlap with a residual effect of another project or activity. Information contained in Section 9.1 Previous Developments may contribute to the cumulative effects assessment. The EIS will describe the cumulative effects assessment methodology. The Proponent has proposed a cumulative effects assessment methodology, which would follow the method outlined above for the project-specific VC effects assessment, and proposes the following steps:
• Determination of spatial and temporal boundaries; • Consideration of other projects and activities and identification of project interactions;
• Description of cumulative effects; • Identification of mitigation measures;
• Characterization of cumulative residual effects; and • Determination of significance of cumulative residual effects.
2.2.7 Spatial and Temporal Boundaries (EIS Guidelines, Section 8.5.3.1) The EIS will describe the spatial boundaries within which each cumulative effect of the Project will be assessed and provide a rationale for each boundary.
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The Proponent proposes to assess the cumulative effects within the proposed RAA defined for each VC. The spatial boundaries of the RAA will be based on:
• Where possible interactions with other projects or activities overlap; and
• For ecological boundaries, they will be ecologically defensible (e.g., wildlife range boundaries). The adequacy of data will be assessed in terms relevant to the purpose of the cumulative effects assessment. To assess the cumulative effects that are likely to result from the Project in combination with other projects or activities that have been or will be carried out, the Proponent proposes to present the following in the EIS: Baseline Case: The Baseline Case will demonstrate the current status of the VC. In doing so, it will reflect the effect of all projects and activities that have been carried out. Future Case without the Project: To identify the potential adverse effects of projects and activities that will be carried out, the Future Case without the Project will be developed to predict the status of the VC by taking into account the Baseline Case and projects and activities that are at least as foreseeable as the Project. This will demonstrate the potential residual effects of projects and activities that have been and will be carried out. Project Case: To demonstrate the cumulative effects that are likely to result from the Project, the Project Case will demonstrate the status of the VC, taking into account the residual effects of the Project that are likely combined with those identified in the Future Case without the Project. [emphasis added]
2.2.8 Comment on the EIS Guidelines Section 19(1)(a) of CEAA 2012 requires the assessment of: … any cumulative environmental effects that are likely to result from the designated project in combination with other physical activities that have been or will be carried out;
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The requirement to describe the current status VCs and “reflect” the effects of past projects in the process is an exceedingly vague directive. It is not clear to what extent it is necessary to conduct analysis and provide explanation for the effects of past projects. However, common sense would assume that the effects of past projects on the same VCs, how they came about and the geographical scope of these effects is of great interest to those concerned with the state of the environment in this watershed and whether another large dam is the best alternative to meet needs and objectives of the present and future. Section 8.5.3.3 of the EIS Guidelines requires BC Hydro to provide recommendations for possible regional approaches to mitigation where potential cumulative effects have been identified. This requirement reflects the fact that cumulative effects are a combination of residual effects of separate projects and activities. Those residual effects would arise after the application of mitigation by the separate proponents.
2.3 Proponent Information and Findings The Proponent conducted work on vegetation and ecological communities within local and regional assessment areas to characterize the existing environmental conditions. The stated intent was to assess the potential for the Project to adversely affect vegetation and ecological communities by altering or fragmenting the habitat, including wetlands, terrestrial ecosystems, rare and sensitive ecological communities, and rare plants. The study area for cumulative effects on vegetation and ecological communities was the same as the RAA for project effects. This was also the case for fish and fish habitat and wildlife. The Proponent had initially concluded that the creation of the reservoir and other Project activities would create significant adverse residual effects by altering and fragmenting unique terrestrial ecosystems including a marl fen, tufa seeps, and old and mature riparian and floodplain forests. In addition, some occurrences of rare plants would be lost, including two plant species at risk (Drummond’s thistle and little bluestem). The amended EIS did not change these findings. The effects on vegetation and ecological communities are directly relevant to wildlife and fish as they provide habitat or influence habitat conditions. For fish and fish habitat it was determined that there would likely be a loss of three distinct sub-groups of species, the migratory Arctic grayling in the Moberly River, the migratory bull trout that spawn in the Halfway River and mountain whitefish that rely on Peace River habitat. It was predicted that these species would continue to be present in
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Peace River tributaries and downstream of the Site C dam, and may persist in the reservoir. For wildlife resources the effects are considered to be significant, as habitat for certain migratory birds (Canada, Cape May and Bay-breasted Warblers, Yellow Rail and Nelson’s Sparrow) would be lost as a result of the creation of the reservoir. Effects on other species of wildlife are not considered to be significant due to mitigation measures to compensate for habitat loss and degradation, or due to the fact that these species are not considered to be at risk. It has been determined that there will be significant adverse effects on vegetation and ecological communities, in particular the riparian vegetation complexes of the Peace River and tributaries that will be directly affected by reservoir development and changes in flow downstream. It is proposed that partnership with Ducks Unlimited will adequately compensate for lost wetlands by enhancements in the immediate area and even on other areas of the province if necessary. If this is necessary, which I believe it will be to even begin to compensate for the incremental losses of riparian wetlands in the Peace River system, it will still constitute a net loss of biological diversity in the Peace River valley. This is especially so if the actual cumulative effects are considered, meaning the riparian habitat losses associated with the Peace River hydroelectric complex as a whole.
2.4 Informational Deficiencies
1. Rare Plants and Riparian Vegetation Communities (JRP-IR#71) There remains insufficient information in the EIS on rare plants and riparian vegetation communities that will be replaced by the reservoir conditions to determine the degree to which mitigation measures will be acceptable. The Proponent has proposed that additional fieldwork to locate populations of rare plants would be completed prior to the beginning of construction. Additional areas of weak information include the current use of these communities by other species throughout annual cycles, predicted differences in hydrological conditions that are possible in new wetlands, and the level of effort that will be applied to restoration and enhancement.
2. Vegetation and Ecological Communities in the Upper Watershed (JRP-IR#90) There is almost no information about the changes that have occurred in vegetation and ecological communities in the upper watershed beyond a general statement that “some” vegetation communities were lost. It is not possible to determine the significance of additional losses with that level of information. This is also the case for fish habitat.
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3. No Focused Mitigation Proposed for Hydroelectric System as a Whole (JRP- IR#68S and IR#30) The IR response provides a good overview of the wetland types in the study area, plant association and general wildlife values. It repeats the assertion that,”…within the LAA, at least 3,300 ha or 80% of existing wetland habitat would be unaffected by the Project”. Rather than presenting figures such as this which lump wetlands together, it is more relevant even in a summary, to explain the relative loss of the specific types of wetlands, especially those associated with riverine hydrological processes, which do not exist in any quantity in upland areas. It is important to keep this top in mind in the assessment. The wetland functions provided to the surrounding habitats are related to position in the landscape, and different types of wetlands support unique plant and animal communities. The phenology of plant growth in the valley bottoms could also have an influence on habitat function. Lower altitude valley bottoms green up sooner in spring that upland areas, and thus contribute to longer growing season for plant and animals. Those wetlands along the main stem of the river would be expected to provide a greater diversity of habitats and support a higher plant species richness. Even with the effects of existing upstream regulation, the tributaries contribute to the persistence of the river wetland types. As described in BC Hydro‘s response to Question 30, BC Hydro proposes to develop a prioritized list of wetland mitigation sites in partnership with Ducks Unlimited. It is recognised in the EIS that despite these important initiatives it is not possible to replace all of the wetland functions that are lost. First, the scale of hydrological change is large. It will affect all of the existing Peace River riparian habitats within the impoundment. Second, it is not reasonable to expect to duplicate the existing riverine hydrological regime and soil characteristics that have created the existing wetland features. The hydrological regimes of typical off-system marshes that are not directly affected by larger river processes are better candidates for wetland creation or enhancement. However, even those recreated wetlands tend not to reproduce the same level of biodiversity that exists in natural wetlands. Thus, it is concluded appropriately that the loss of riparian wetlands will be significant. It is concluded that this loss is acceptable when weighed against the benefits of the Project. However, the fact that the regional losses of riparian wetlands, especially those of the main stem valley bottoms, in the river basin as a whole have not been well
November 2013 14 © 2013 Treaty 8 Tribal Association documented, nor explained, means that the level of significance of additional losses in river reaches immediately adjacent to the currently degraded environments remains poorly appreciated in this EIS. There is little information on adaptive management approaches being used to compensate for lost riparian wetlands in the upper watershed. The hydrological regimes of the upstream reservoirs are different that proposed reservoir. However the relative success of these is important to understand well. Mitigation for valley bottom wetlands for the river system as a whole can then be considered more clearly. It is possible that the only mitigation measures that could have a significant positive effect would be to investigate changes in flow regimes.
2.5 Analytical Deficiencies
4. Limited Spatial and Temporal Scope of Study Areas for Cumulative Effects (JRP-IR#90) With regards to the analysis of cumulative effects on vegetation communities of the proposed Project in combination with existing and future developments in the RAA, BC Hydro states: “The approach taken is conservative, in that although the spatial extent of the residual adverse effects of the Project on Vegetation and Ecological Communities is within the LAA, the cumulative effects assessment considers that other projects and activities may remove rare plants and terrestrial habitats that are the same in nature as those affected by the Project, even though the effects of other projects are not in the LAA and therefore do not overlap spatially with Project effects." [emphasis added] There is nothing particularly conservative about this approach. Vegetation communities are important in themselves, but also as habitat for other species. The concept of cumulative effects cannot be restricted to those effects that directly overlap in space with the Project effects. Boreal plant and animal communities need space. They need space to persist over time in a relatively harsh environment. Large areas are needed to provide space for metapopulations to persist in the face of stochastic events such as intense fire, disease, and weather events. Cumulative habitat degradation and permanent loss is important to understand over large areas, not only within the immediate are of the project. This is especially so when these areas are relatively uncommon on the landscape.
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In the case of vegetation and ecological communities, it makes the most sense to include the upper reaches of the river for a regional assessment of incremental loss of riparian habitats, changes in diversity of shoreline communities, and fragmentation along river corridors that were previously connected.
3 REVIEW OF THE PANEL INFORMATION REQUESTS AND RESPONSES
3.1 Informational Deficiencies
5. Methodology for Defining Cumulative Effects (JRP-IR#90) The Panel asked that additional information be provided on the methodology used for defining the spatial and temporal boundaries for assessment of cumulative effects. Very little additional information was provided. The responses primarily reiterated the arguments used in the EIS and Cumulative Effects Assessment Technical Memo. The rationale presented for the choice of spatial and temporal boundaries for cumulative effects was to determine whether a past or future Project or activity is outside the largest RAA. The Proponent states that: “By using a conservatively large RAA, all potential cumulative effects for VCs were captured.” It also asserts that if a Project was in operation or an activity was occurring prior to September 5, 2012 associated residual effects may be reflected in baseline case conditions. The results of the approach taken are that the EIS fails to adequately address the primary reasons for instituting cumulative effects assessment which is to understand to the degree possible the: “… cumulative environmental effects that are likely to result from the [Project] in combination with other physical activities that have been or will be carried out…” The ultimate purpose of environmental assessment is to help us to understand environmental change due to our development decisions and activities, and help us to make decisions for the future to ensure that we can maintain a healthy environment. The idea that all effects of past projects are simply “reflected” in current conditions and, therefore, there is no need to conduct any meaningful analysis of the effects of past projects is not acceptable. This approach appears to assume:
• that there is nothing that can be done about the adverse effects of past projects;
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• that the current environmental conditions are the best that can be achieved in the future;
• that a better understanding of historical reference points is irrelevant to the question of cumulative effects and adaptive management;
• that in the case of stepped series of hydroelectric structures on one river system, the past condition of the river is not important to understand in order to consider what environmental health or ecological integrity means within that system;
• that the cumulative effects on Treaty Rights from the point in time when a treaty was signed is not important;
• that the current condition of the river ecosystems are somehow static and are not continuing to adapt to the ongoing effects of the existing hydroelectric infrastructure upstream. The concept that mitigation for the loss of local wetlands can be addressed in part by restoration, enhancement or recreation of wetlands in other areas, including anywhere else in the province appears to be accepted in this EIS. This approach is unacceptable to the Treaty 8 First Nations. It once again fails to acknowledge the impact of incremental loss of productive wildlife habitats throughout Treaty 8 territory, including the upper watershed of the Peace River basin. One of the most important environmental effects of major development is habitat conversion and loss. The Peace River system has experienced extensive habitat conversion and loss. How extensive this has been and continues to be, how the Project will add to this, and how significant is this to the regional ecosystems are some of the questions intended to be asked by cumulative effects assessment. If the Project creates habitat loss of a certain nature, is it more significant that this loss occurs in the context of previous loss, or does this matter? I contend that the previous losses in the upper watershed probably do matter. The Proponent describes the effect of the existing projects on the upper reaches of the watershed in very general terms. For example: Flooding in the Williston Reservoir resulted in some loss of vegetation communities occupying river floodplains, and riparian features such as wetlands. To a lesser extent, upland areas within these valleys were also flooded up to the maximum reservoir elevation. [emphasis added]
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The magnitude of the existing effects is something that is not adequately expressed in the EIS. It is mentioned that the proposed project would flood only 5% of the area flooded by the existing reservoirs. This comparison is apparently intended to reduce the interpretation of the significance of the additional loss of riverine habitats. The reality is that all of the vegetation communities formerly occupying the river floodplains, and virtually all former riparian features were destroyed. All of the upland forest in the flooded valleys is gone. None of these vegetation communities will regenerate with similar characteristics as long as the impoundment exists. All of the existing shorelines are incapable of developing diverse riparian vegetation communities due to the hydrological regime. The existing downstream reaches have also been already degraded to an extent by the existing reservoir operations. The characteristics of large river valleys with naturally functioning hydrological regimes are not simply duplicated on a smaller scale in the uplands. Habitat diversity as well as quality is high in large river valleys, especially for species that benefit from early season green-up on south-facing shores with extensive early successional vegetation communities, in rich soils, adjacent to water. Aquatic and riparian habitats of large rivers are thought to act as corridors for species dispersal and to support resilience of species throughout watersheds. Connectivity between riverine habitats and main stems with tributaries, and the habitat diversity that these areas create, are important for many species. These characteristics have already been degraded in the reaches of the Peace proposed for further development, due to upstream reservoir operations. Further development will eliminate most riverine characteristics in the new reservoir. It will also create an opportunity cost for riparian habitats that could potentially be improved with some investment in ecological flows. The hydrological changes are the main reason for the loss of these habitats. Evidence from countless reservoirs with similar operational regimes in boreal environments supports the assertion that these habitats will not be recreated on the new reservoir shorelines. Seasonal variation in storage of water and consequent variation in the reservoir surface area have created an extensive drawdown zone around the 1,770 km perimeter of Williston Reservoir. The composition and productivity of riparian communities colonizing this drawdown zone is now
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regulated by patterns of reservoir level variation. (EIS Section 11 pp.11-8- 9) To more fully appreciate the cumulative habitat loss in the upper watershed, the current condition of the riparian communities should be described in much more detail, as well as mapping conducted to demonstrate and measure the changes in habitat diversity. Given the significance of these past changes, it is of concern that the cumulative losses of aquatic and valley bottom habitats within the watershed are not better documented in this assessment exercise.
6. Mitigation Measures for Cumulative Effects (JRP-IR#90) Section 8.5.3.3 of the EIS Guidelines requires BC Hydro to provide recommendations for possible regional approaches to mitigation where potential cumulative effects have been identified. The Technical Memo on Cumulative effects discusses this requirement in page 11. This Project is an addition, both physically and functionally to the existing infrastructure upstream. The reservoirs must be operated in conjunction with one another. It is argued that since the Site C reservoir has only short-term storage capacity, that the operation of the new project will not change operations upstream. However, if we acknowledge that the loss of seasonal hydrological processes on riverine aquatic and riparian habitats is significant, due to regulation of river flows, then we may wish to consider mitigation opportunities for future habitat restoration, or at least to minimize habitat degradation. One of the most important mitigation measures to consider then is altering flows, even periodically, to re-introduce spring flood events for example. There may be limited opportunities for this in the upper watershed, however, in the Peace reaches to be affected by the Project, it may be possible to mitigate some loss of riparian habitat values, by investigating whether ecological flow releases could be implemented. In order to do this, it would affect the reservoir levels upstream, and the economics of the projects as an integrated system. It would be necessary to understand what the potential ecological and financial costs and benefits would be throughout the system. The confinement of the bulk of additional study and analysis to the Peace River downstream of the Williston and Dinosaur reservoirs severely restricts the level of understanding of cumulative effects of past projects combined with the proposed project, in addition to limiting the consideration of additional mitigation measures that may be possible.
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It is understood that there will always be numerous areas of insufficient information to assess the current environment and the changes that will occur with this project. What is not acceptable is:
• The refusal to view the suite of hydroelectric projects as a whole integrated system.
• The refusal to consider the watershed as a meaningful geographical scope for assessment of cumulative effects.
• The failure to consider the river’s “natural hydrological regime” as a key ecological process that shapes the ecological diversity of riverine environments. If the natural hydrological regime were understood as a VC, the spatial and temporal overlap in cumulative effects would be clear, and would lead to a more logical scope of assessment.
• The very weak level of effort applied to examining the potential significance of these major cumulative changes across the landscape;
• The very artificial boundary for the RAA for wildlife, vegetation and ecological communities that approached the southern edge of the Williston reservoir and not beyond, and does not extend at all along the northern border of the existing reservoir. Ecoregions are areas of broad physical similarity but they are not impermeable boundaries (Meidinger and Pojar 1991). As the EIS points out, most boreal species are wide-ranging. Many species move long distances or use different habitats seasonally or over time as populations fluctuate in size.
3.2 Analytical Deficiencies
7. Inadequate Baseline for Cumulative Effects (JRP-IR#90) Using the current state of a VC without attempting to quantify in any way the changes that have already occurred due to recent developments does not meet the intent of cumulative effects assessment. For clarity, we can look at grizzly bear range contraction in North America (Figure 1) as an example. The map depicts the current and former known range of the grizzly bear. If we used this range as a baseline for this VC in a regional area in the context of an environmental assessment, it would provide some information against which to compare future change, however, it does not tell us anything about how the range has changed in the past, or potential reasons for this.
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It also does not tell us anything about the ongoing effects of existing human activities on grizzly bears. There is often a long-term lag in population response to a disturbance or loss of habitat that may take generations to become apparent in the overall range of distribution. In the case of rare plants in the Peace River region, it may not be possible to
map the former range of individual Figure 1 Contraction of Grizzly Bear Range in North America (WCWC 2002) species, or even the current range. However, it is possible to map the extent of changes in riparian and aquatic habitats, and quantify the change in habitat diversity, and the loss of habitat types that have the potential for rare plants and plant communities. Rare plant potential in the LAA was determined from fairly coarse scale mapping (Keystone Wildlife Research 2009). While these habitats do not necessarily support populations of rare plants at any one point in time, the potential for this is important to understand in the context of an environmental assessment of projects that cause permanent and long-term habitat loss. The “duration” of an environmental effect is an important criterion for assessment. The permanent loss of river valley bottom habitats, since these habitats are relatively unique, represents permanent loss or reduction of opportunity for species on a landscape over time. It is also possible to investigate historical records and oral history to determine if there is information that can inform us about the existence of rare plants and plant communities in areas where habitat conversion has been radical and permanent. It may not be comprehensive, however, it can potentially provide a better understanding of the significance of existing development added to proposed development for plant communities.
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4 ADVICE CONCERNING SIGNIFICANT RESIDUAL ADVERSE ENVIRONMENTAL EFFECTS
4.1 EIS Guidelines The criteria to determine significance in the EIS Guidelines include consideration of the following:
Geographic Extent This refers to the geographic area in which an environmental, social, economic, heritage, or health effect of a defined magnitude occurs (site-specific, local, regional, provincial, national, international). Duration The period of time required until the valued component returns to its baseline condition, or the effect can no longer be measured or otherwise perceived (short term, medium term, long term, permanent). Frequency The number of times during a project or a specific project phase that an environmental, economic, social, heritage, or health effect may occur (e.g., once, daily, weekly, monthly, continuous). Reversibility This refers to the degree or likelihood to which existing baseline conditions can be regained after the factors causing the effect are removed. Effects can be reversible or irreversible. Context This refers to the extent to which the area within which an effect may occur; has already been adversely affected by human activities; and is ecologically fragile and has little resilience and resistance to imposed stresses. Level of Confidence This is an evaluation of the scientific certainty one has in the review of project specific data, relevant literature, and professional opinion; the EIS will include a statement on the level of confidence in the assessment of direction, magnitude, extent, duration, frequency and reversibility. Probability The likelihood that an adverse effect will occur (e.g., low, high or unknown).
4.2 Findings of the Proponent The Proponent concluded in its executive summary that: Residual effects to vegetation and ecological communities from other future projects and activities combined are considered significant, even without the Project. This is because the potential residual effects of other
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projects and activities that include road construction, forestry and land clearing activities, cannot be fully mitigated and the future loss of rare plants and rare and sensitive ecosystems due to these other projects have the potential to further elevate provincial or federal listings. The cumulative effect with the Project is also considered significant.
4.3 Key Concerns Regarding Proponent Findings The Proponent identifies significant permanent loss of terrestrial and riparian habitats in the main stem of the Peace River and lower reaches of tributaries. I have concerns that despite the determination of significance for adverse effects on certain elements of vegetation and ecological communities, the full magnitude of these effects across the region cannot be understood from the information provided in the EIS and responses to requests for additional information. In particular, the geographic extent, duration, reversibility and context cannot be fully appreciated without a more comprehensive analysis and assessment of the effects of the Williston and Dinosaur reservoirs. There have been significant, permanent losses of large valley bottom habitats in the upper portions of the watershed flooded by the Williston and Dinosaur reservoirs. Regardless of the level of mitigation that can be achieved in areas elsewhere, this loss of habitat diversity is a fact and is cumulative. In evaluating the significance of cumulative effects to vegetation and ecological communities, the Proponent focuses on future projects. This implies that little, if any, weight or consideration was given to the effects of past projects. The conclusion does not explain how the effects of existing hydroelectric development were factored into the determination of overall significance. The Proponent emphasizes that the significant effects on these VCs would occur “even without the Project”. This conclusion appears to imply that the effects of the Project are not very important in the larger context, and therefore mitigation efforts are also less important. There is little analysis of the implications of this conclusion to decisions regarding this project or for the health of riverine vegetation and ecological communities into the future.
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REFERENCES
Keystone Wildlife Research Ltd. 2009. Terrestrial Ecosystem mapping of the Peace River study area. Baseline inventory surveys. Prepared for BC Hydro. Luttermann, A. 2013. Historical documentation describing the pre-hydroelectric environment on the Peace River, BC. Unpublished report on archival research prepared for Treaty 8 Tribal Association. Meidinger, D and J. Pojar (eds). 1991. Ecosystems of British Columbia. Special Report Series 6. BC Ministry of Forests. Moody, A., P. Slaney and J. Stockner. 2007. Footprint Impact of BC Hydro Dams on Aquatic and Wetland Primary Productivity in the Columbia Basin. AIM Ecological Consultants Ltd. in association with Eco-Logic Ltd. and P Slaney Aquatic Science Ltd. Prepared for Columbia Basin Fish & Wildlife Compensation Program. Utzig, G. and D. Schmidt. 2011. Dam Footprint Impact Summary: BC Hydro Dams in the Columbia Basin. Prepared for: Columbia Basin Fish and Wildlife Compensation Program, Nelson BC.
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APPENDIX A – PROFESSIONAL PROFILES
November 2013 25 Annette M. Luttermann PhD
P.O. Box 2374 Golden, BC V0A 1H0 Phone/Fax: 250-344-2262 Cell: 250-344-8473 [email protected]
ACADEMIC BACKGROUND
2007 Interdisciplinary PhD Dalhousie University, Halifax . Thesis: Historical Changes in the Riparian Habitats of Labrador’s Churchill River Due to Flow Regulation: The Imperative of Cumulative Effects Assessment . Research in boreal ecology, hydroelectric developments, environmental assessment, aboriginal land use and local environmental knowledge . Social Sciences and Humanities Research Council Doctoral Fellowship . Also supported by a Natural Sciences and Engineering Research Council Discovery Grant Held by Dr. Bill Freedman
1995 Master of Environmental Studies School for Resource and Environmental Studies, Dalhousie University, Halifax . Thesis: Towards Ecosystem-based Management for Protected Areas through Comprehensive Land Claims and Interjurisdictional Cooperation: A Case Study of the Torngat Mountain National Park Proposal in Northern Labrador . Research in boreal ecology, migratory caribou, aboriginal land claims law and land use, protected areas management . Gerald and Margaret Godsoe Scholarship . Sir Izaak Walton Killam Memorial Scholarship
1988 Bachelor of Arts, Anthropology, First Class Honours McGill University, Montréal . Thesis: Baffin Inuit Perspectives on Medical Evacuations and Experience with the Southern Health Care System . Research in social and medical anthropology, and the cultural and political struggles of North American aboriginal peoples . James McGill Award . Northern Studies Scientific Research Grant
EMPLOYMENT AND PROJECT OVERVIEW
. Consultant to Pimicikamak, Manitoba 2011 (ongoing) in relation to the proposed Keeyask Hydroelectric project and water license review for the Churchill River diversion and Lake Winnipeg regulation. Technical advisor on direct and cumulative environmental effects of development.
. Project Manager 2011 (ongoing) Golden and District Air Quality Management Plan. Data analysis of air pollution monitoring. Consultation with public, industry, local and regional government on emissions reduction measures.
. Consultant to Grand River Keepers 2008 (ongoing) Technical review of environmental assessment reports for the Churchill River Power project and the Labrador Transmission Link.
. Consultant to Innu Nation, Labrador 1998 – 2011 in various capacities in relation to the Churchill River Hydroelectric Development. Roles and responsibilities included: scientific advisor on baseline environmental studies, technical review of environmental assessment documents related to impacts of hydroelectric development, planning and evaluation of environmental assessment processes, and coordinator of community consultations on river development and conservation issues.
. Coordinator of a “Responsible Recreation Pilot Project” - on contract to Wildsight and the Columbia Basin Trust. 2010 -2011. Project involved: assessment of impacts from off-road vehicles on alpine and riparian soils and vegetation at several sites in the Golden area; consultation with stakeholders; development and delivery of pilot educational program for high school science students.
. Teaching Assistant in “Environmental Ecology”, and lecturer on natural resource management topics such as anthropogenic effects on water quality, air pollution, forestry practices, ecological effects of dams and impoundments, Department of Biology, Dalhousie University, 1998-2007
. Coordinator of the Canadian Environmental Literacy Project (CELP), 2003. Development of teaching modules for environmental studies and resource management
. Conducted field modules for master’s level Environmental Education courses, School for Resource and Environmental Studies, Dalhousie University, 1998 -1999.
. Research consultant for a cumulative effects study of development at Cape Breton Highlands National Park, and for a Shared Species Management Pilot Project, IUCN, 1997, with Keith Earth and Environmental, Halifax.
. National Park Interpreter, Gros Morne National Park. 1995-1996. Researched and conducted educational programs on the natural and cultural history of western Newfoundland, including community-based interviews on socio-economic history.
. Research Assistant, School for Resource and Environmental Studies, Dalhousie University – Literature review of aboriginal fisheries resource management, 1995.
. Research consultant for an NGO contracted environmental assessment of the Halifax G-7 Economic Summit. Included development of project proposal, research design, background documentation and field research, preparation of final report. Lane Environment Ltd., 1995.
. Teaching assistant for core graduate seminar in Environmental Studies, School for Resource and Environmental Studies, 1993 and 1994.
. English instructor and work in international relations with the Japan Exchange and Teaching Programme, Minowa and Takato School Boards, Nagano Prefecture, Japan, 1991-1992.
. Educational Coordinator, Programme de Multiculturalisme, Montréal Children’s Hospital, Québec. Planned and facilitated seminars and workshops for medical and support staff in cross-cultural health care and child-rearing, and assisted with coordination of language interpretation service, 1988-1991.
2
. Principal researcher for an evaluation of in-service educational programs in cross-cultural communication. Responsible for research design, interviews, data analysis and report preparation, 1987.
SELECTED REPORTS AND PUBLICATIONS
Luttermann, A, J. Ashini, and P.Nuna. 2001. Innu Nation community consultation on hydroelectric development in Nitassinan. Phase II. Sheshatshiu: Innu Nation.
Fouillard, C., A.Luttermann, Andrew, A., J.Ashini, N.Byrne, J.Gregoire, N.Nuna, P.Nuna, L.Riche and P.Rich. 2000. Power Struggle: An Innu look at hydro developments in Nitassinan. Innu Nation community consultation on the new Mishta-shipu hydro project. Sheshatshiu: Innu Nation.
Luttermann, A. and B. Freedman. 1999. Risks to forests in heavily polluted regions. pp. 9-26 in: Forest Dynamics in Heavily Polluted Regions. (J.L. Innes and J.Oleksyn, eds.) International Union of Forestry Research Organizations. New York: CABI Publishing.
Keith, T. and A.Luttermann. 1997. Shared species management pilot project. Prepared for the IUCN Commission on National Parks and Protected Areas.
Cohen, F., A.Luttermann and A.Bergin. 1996. Comparative perspectives on indigenous rights to marine resources in Canada and Australia. pp. 389-418 in: Oceans law and policy in the post-UNCED era: Australian and Canadian perspectives. London: Kluwer Law International.
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APPENDIX B
Luttermann, A. 2013. Historical documentation describing the pre-hydroelectric environment on the Peace River, BC. Unpublished report on archival research prepared for Treaty 8 Tribal Association.
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Historical Data Useful for Assessing Environmental Changes in the Peace River Watershed related to existing Hydroelectric Development
Draft Report on Archival Research
Prepared by Annette Luttermann PhD
November 2012 DRAFT – For Discussion with Treaty 8 Tribal Association
Executive Summary
Treaty 8 Tribal Association is interested in the regional cumulative environmental effects of additional hydroelectric development proposed for the Peace River. During the late 1950’s, planning began for the development of a large hydroelectric facility on the Peace River and two of its major tributaries, the Finlay and Parsnip Rivers in the Rocky Mountain Trench in British Columbia. At the time there was limited legislation at the provincial or federal levels requiring the study of environmental and sociocultural effects of such developments.
There was no study carried out on environmental impacts by the Peace River Power Development Company Ltd. or by BC Hydro after the government took over the project in the early 1960’s. Data collection, analysis and written documentation detailing environmental conditions prior to development from that era are scarce, and what there is tends to be relatively weak.
Nevertheless, an understanding of the environmental conditions prior to development is necessary and crucial for an understanding of cumulative environmental effects over time. In the absence of a formal environmental monitoring program all sources of information should be utilised to construct the best possible description of the pre-development environment.
A search was conducted for materials that may contribute to an understanding of the Peace River basin prior to hydroelectric development. Available quantitative data is primarily limited to aerial photography, topographical mapping and hydrometric data. Adequate black and white aerial photography exists at appropriate scales that could form the basis of land cover and river morphology mapping that can inform habitat classification and calculate habitat loss and conversion.
Descriptive materials including narratives of land and wildlife observations, general accounts of natural resources, photos and film can provide rich point-in-time accounts of various locations throughout the river basin. Limited data exist based on fish and wildlife surveys. These cannot be used to set a quantitative historical baseline, but can be used for a generalised comparative approach to pre- and post development conditions.
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Table of Contents
Executive Summary ...... 3 Introduction ...... 5 Sources of Information Consulted...... 7 Report Limitations ...... 7 Results ...... 8 Habitat Mapping...... 8 Aerial Photography ...... 9 Topographical Mapping ...... 9 Historical Descriptive Accounts ...... 11 Government Documents...... 11 Geology and Soils ...... 13 Fish Data ...... 15 Wildlife Data...... 16 Hydrological Data ...... 17 Water Quality Data ...... 19 Film Imagery and Still Photos ...... 20 Conclusions ...... 20 Appendices...... 22 Appendix 1 Restricted Access to Archival Records ...... 22 Appendix 2 Pre-Hydroelectric Aerial Photography Available for the Peace River Basin in BC ...... 24 Appendix 3 Selected Historical Descriptive Documents ...... 25 Appendix 4 Pre-regulation Hydrological Data in the Peace River Basin ...... 27
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Introduction
Treaty 8 Tribal Association is interested in the regional cumulative environmental effects of additional hydroelectric development proposed for the Peace River region. During the late 1950’s, planning began for the development of a large hydroelectric facility on the Peace River in British Columbia. At the time there was limited legislation at the provincial or federal levels requiring the study of environmental and sociocultural effects of such developments. Therefore data collection and written documentation detailing environmental conditions prior to development from that era tends to be relatively weak. An understanding of the environmental conditions in the areas subsequently affected by river regulation and associated infrastructure is important to developing a meaningful cumulative effects assessment for the watershed when additional hydroelectric projects are proposed.
A preliminary search was conducted for archival materials that can inform the development of a pre-hydroelectric baseline for the Peace River. Public Archives and libraries as well as government and industry data sources were consulted. This report offers is a description of the range of existing and accessible materials that may be useful to develop an environmental history of the Peace River basin to contribute to a cumulative effects analysis. Some discussion of the types of questions that may be addressed by this material is provided.
It was known prior to this project that no formal fieldwork was conducted prior to the W.A.C Bennett Dam to document environmental characteristics for the explicit purpose of monitoring subsequent environmental change. In the absence of such work, a compilation of existing documentation and oral history can serve as a proxy to create an understanding of the changes caused by the Bennett Dam.
Much of the material available is broadly descriptive and is useful for developing a narrative that can explain the nature of numerous types of changes in the environment. This can be used in conjunction with relevant research conducted in other boreal regions on the effects of large- scale hydroelectric development. Some of this information can be used in a qualitative analysis of the effects of incremental hydroelectric development.
The most promising quantitative analysis that can be done is mapping of habitat change due to flooding and changes in hydrological patterns in downstream reaches. River morphology and riparian habitats are constantly affected by seasonal flooding and drying patterns, and extreme flooding events. These are early successional habitats and are naturally subject to relatively rapid rates of change. For example, measurements of riparian habitats lost to reservoir flooding at one point in time are not necessarily to be used in absolute terms to measure long-term loss of habitats. However, this kind of information is indicative of long-term loss in habitat potential. The extent to which boreal habitats in the 100-500 year flood zones of large rivers are influenced by the periodic delivery of river sediments, nutrients and plant
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propagules is not well understood, however this is an important element to consider when examining the potential long-term and incremental consequences of river regulation.
The Williston reservoir created in 1968 in north central B.C. is the largest body of fresh water in British Columbia, and the ninth largest reservoir in the world. It is operated as a storage reservoir for the WAC Bennett generating station. Hydrological patterns have been radically changed from pre-development riverine conditions in the Peace River and its major upstream tributaries of the Finlay and Parsnip Rivers. With a surface area of about 1,800 km2 and over 1,770 linear km of shoreline this is a significant environmental change in the river basin.
In 1980 another dam and much smaller reservoir was completed about 23 km downstream of the Bennett Dam in the Peace Canyon. These two reservoirs control waters from an area of approximately 70,000 km2. It is known that 24 species of fish and 295 species of wildlife can be found in the habitats of the watershed.1
Regulation of flow patterns below the dams have created significant environmental changes many 100’s of kilometres downstream. Associated infrastructure including that needed for generation, transmission, accommodation of workers and services, has created changed over vast areas of the region. Given the magnitude of this development, a lack of a rigorously designed pre-development environmental research program should not preclude an effort to explain the changes that have occurred to the extent possible.
Canadian laws for the protection of aboriginal rights and treaty rights are based on the principal that Aboriginal peoples’ pre-existing use of the land, access to resources and cultural practices have been compromised and continue to be compromised by the people who have settled their territories since first contact and treaty making. From an Aboriginal perspective therefore, any meaningful consideration of the cumulative effects of additional hydroelectric development on a river system such as the Peace, should make an attempt to describe the changes in the environment that have already occurred as a result of this type of development.
The common practice used in many contemporary environmental assessments of describing current “baseline” conditions and accepting this as providing an understanding of cumulative effects of past industrial development in the absence of analysis of the mechanisms and directions of prior change is the weakest approach possible. This method offers no historical reference points to the uninitiated. It assumes that the effects of past developments are already been explained and therefore we can simply start with the present day. This is not the case and does not meet the intention of cumulative effects. There was no environmental assessment legislation when the WAC Bennett or the Peace Canyon dams were built. The question then becomes, what can we learn about the effects of those projects that can help to illuminate the causes for the current environmental conditions.
1 BC Hydro Peace/Williston Fish and Wildlife Compensation Program (PWFWCP) http://www.llbc.leg.bc.ca/public/pubdocs/bcdocs/359836/pwfwcp_brochure.pdf
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It is the case that a quantitative analysis of changes in population numbers, for example, may not be possible due to a lack of detailed data. Nevertheless spatial data, general descriptive data and oral history can provide a general understanding of many changes that have occurred.
Sources of Information Consulted
BC Provincial Archives
The BC Archives in Victoria houses a large store of documents related to BC history including government records, private letters and journals, books, maps, illustrations, sound recordings and moving images. Most government documents produced before the early 1980s have been transferred to provincial archives. The Archives were consulted through the on-line catalogue for material related to the environment of the Peace River prior to the first hydroelectric developments, and material generated in planning for the WAC Bennett Dam (Portage Mountain Project - Williston Reservoir) and the Peace Canyon Dam (Dinosaur Reservoir).
A site visit to the Archives was conducted for a period of 5 days in September 2012. In many cases the catalogue provides only a general indication of the content of the files, and some materials are not digitally catalogued. Materials were reviewed to determine their utility in contributing to an understanding of pre-development environmental conditions.
Other sources of information consulted included:
BC Hydro Photogrammetry Services National Archives National Air Photo Library Geo BC NTS Mapping Water Survey of Canada, Hydrological records Environment Canada, Federal/Provincial monitoring stations BC and Alberta University online library catalogues
Report Limitations
This report cannot be considered to be comprehensive due to some limitations in timing and access to data.
Certain archival records were designated as “undetermined restricted access” by BC Archives due to considerations under the BC Freedom of Information and Protection of Privacy Act. For permission to access the material a legally binding research agreement with the BC Archives is required. A research agreement was forwarded by the Manager of Corporate Information and Records Office, BC Archives near the end of October which was too late to consult the records for this report. These records are listed in Appendix 1 and it may be useful to consult these in future if further research is pursued.
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Documents certainly exist that were not located during this search. References to some documents held at the BC Archives led to empty file folders. For example a document entitled: “Reconnaissance of Finlay River”, BC Forest Branch BC Archives GR943, Box 14, File 11 was not in the file. Such material may be available elsewhere.
Results
Examples of materials and the types of information they may contribute to a study of the pre-Bennett dam environment are reviewed briefly in this report. Complete copies of several items of archival material are provided in separate files. More detailed data such as a list of hydrological records, and an inventory of aerial photography taken prior to hydroelectric development available for the Peace River basin in BC are included in appendices.
Habitat Mapping Habitat mapping is important in developing an understanding of changes in landscape ecosystems over time. Biophysical classification of the diverse habitats in a region provides us with an indication of the suitability of the area for wildlife and plants and thus the potential for communities of species to live in a given area. A combination of aerial photography and mapping/ground truthing through field work can provide the basis for habitat description and delineation.
Detailed hand drawn mapping was done for the Columbia River Basin prior to hydroelectric development in that region. Those maps have provided a valuable basis for pre-post development habitat change mapping. This was during the same period that the Peace River developments were underway. Unfortunately, this level of mapping was not done for the Peace River.
A search for mapping conducted prior to development of the upper Peace River, lower Finlay River and upper Parsnip River revealed only NTS series maps with some in provisional form only, and more detailed mapping of surficial and bedrock soils and geology in the areas immediately surrounding the future dam sites. No mapping of the entire area to be inundated by future reservoirs was found that would provide information useful to assessing habitat change.
In more recent years Such mapping has become a fundamental tool in environmental assessment and conservation work. For example, under the Peace/Williston Fish and Wildlife Compensation Program a habitat mapping and classification study was completed in 1992 for the Peace Arm2 and wildlife capability ratings were suggested for ungulates and bears at the time of the study in 19943.
2 http://www.bchydro.com/pwcp/pdfs/reports/pwfwcp_report_no_022.pdf
3 http://www.bchydro.com/pwcp/pdfs/reports/pwfwcp_report_no_033.pdf
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Lacking this type of pre-development land classification, the next best starting point would be to pursue new habitat mapping based on any available historical imagery.
Aerial Photography
The most detailed and comprehensive data that exist for the Peace River and its tributaries prior to the existing hydroelectric development are series of black and white air photos. If compared with current conditions, this geospatial imagery can provide us with a picture of habitat loss and conversion in the areas affected directly by reservoir development (flooding) and infrastructure – dams, roads, transmission lines, etc.
The Williston reservoir alone covers approximately 1, 761 km2. The reservoir inundated reaches of the Finlay, Omineca, Ingenika, Ospika, Parsnip, Manson, Nation, Nabesche Rivers and many smaller creeks. Several hundred photos will be needed to cover the areas affected by existing hydroelectric development. The mapping exercise will therefore be labour intensive.
Aerial photography for the Peace River exists at scales of 12000 in the 1920,s, 40000 in the late 1940’s and 1950’s and 80000 in the early 1970’s. (See Appendix 2 for a complete list of imagery available. Index maps for the various scales and years available are attached in a separate file.) This is ample imagery to develop a pre-and post flooding analysis of habitat change in the reservoirs.
Using manual and automated techniques to interpret the historical air photos it would be possible to construct land cover classification maps. In comparison with post-hydroelectric development remote sensing data, these can be used to develop a GIS based system to quantify habitat types that have been converted to reservoir environments.
In order to accurately determine the vegetation communities that are associated with the range of textures, tone, and other characteristics of black and white air photos, field work to document vegetation and other habitat characteristics to ground truth the interpretation scheme is important. This clearly cannot be done for the areas that have already been flooded or otherwise disturbed. Unaffected areas can be used as a qualified proxy to ground truth land cover interpretation.
Topographical Mapping
As of 1958, the mapping for much of the area around Finlay Forks was at a scale of 1:250,000 with contours of 500 ft intervals for a considerable area south of Finlay Forks. Therefore the estimates of reservoir volume were quite rough. Better mapping was needed for more accurate estimates.
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Toward the end of 1958, government manuscripts for the area in question became available, however the maps had not yet been prepared. Aero Surveys Ltd. were contracted to map the area from Finlay Forks south to Summit Lake at 2 inches to a mile with contours at 20 foot intervals (Peace River Power Development Company Ltd. 1959).
These are:
M27 Peace River Pondage 1958 1”=1000’ Contour interval 20’ 11 sheets
M63 Parsnip River Pondage 1958 and 1961 1”=1320’ Contour interval 20’
These maps are available in print form only and are held by the BC Hydro Photogrammetry Services.
Geology reports focus primarily on the reaches of the river investigated as dam sites. The whole reservoir area was not mapped in detail for the project. Mining survey maps may be consulted for the region.
NTS maps printed 1961 (paper) are available at a scale of 1:50,000 based on air photos taken 1948 and 1949. Some 1960 paper maps for downstream areas are based on photos taken 1952. These have a contour interval of 100 feet and show only presence or absence of general vegetation cover, gravel bars, marsh areas.
Example: A portion of the NTS map Gold Bar Peace River District 94B 2/E from 1961.
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Some areas of the region affected by the reservoir have 1:50,000 scale coverage from 1957 in provisional form only with no vegetation cover mapped.
Historical Descriptive Accounts
A number of detailed descriptive narratives are available that provide information pertaining to habitat characteristics and the presence and abundance of fish and wildlife along various reaches of the Peace, Parsnip and Finlay Rivers. These are not comprehensive enough in any sense to form a quantitative baseline against which changes in wildlife populations could be measured. Collectively they do however, provide an important body of observations that can be useful in characterizing the environments which have since been radically changed by hydroelectric development.
Several accounts of reconnaissance river trips on the Peace, Parsnip and Finlay Rivers are available that provide a substantial amount of descriptive information on the habitats and species observed prior to hydroelectric development. None of this information is adequate to develop any quantitative analysis of environmental changes to form an objective baseline.
Selected documents are included in the list of historical documents (Appendix 3) with brief descriptions of the content.
Government Documents Government sponsored environmental research in the Peace River region conducted prior to hydroelectric development was primarily focused on regional surveys to inform opportunities for natural resource development, including mining, forestry, water power development and agricultural potential.
Government publications such as the Province of British Columbia Land Series Bulletins (Peace River Country, 1930), document general summaries of land use, regional natural resources, human populations and economic activities. There is some limited data included that is useful to contribute to a descriptive account of the land use and environment over time.
Provincial Game Wardens reported on trapping, hunting and fishing in the Peace District out of Fort St. John providing tallies for furbearing species trapped and sold, game species killed, bounties on wolves and coyotes paid, observations on relative wildlife abundance and trends from one year to the next. Effort was made to provide geographical reference for observations. This information cannot be used as a baseline for wildlife populations as there was no systematic population survey work done. These accounts are useful contributions to a general qualitative description of wildlife management issues and population trends over limited periods of time.
Examples of a few pages of one report are provided below to demonstrate their general nature. Full documents are attached. Annual Report upon the Provincial Game Act 1915, Peace River District, Provincial Police Office, Fort St. John BC. 1916.
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Geology and Soils
Maps were prepared for surficial soils mapped in the vicinity of the two dams. Portions of these maps are provided below. These provide very limited data useful for environmental assessment. No other portions of the reservoir were mapped in this way prior to flooding.
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Figure 1 Section of map of general soil classification in Peace River Canyon area 1959.
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Figure 2 Section map of general soil classification in the vicinity of the Portage Mountain Dam site, 1959.
Peace River Hydro-electric Project. Soils Engineering. Peace River Power Development Company Ltd. 1959
No documents reporting on soils work with mapping was located for other areas of the reservoirs. There are several reports on surficial geology and soils adjacent to downstream reaches of the Peace River.
Fish Data
Prior to the first hydroelectric developments in the basin, there was very little research conducted on fish populations in the upper Peace, Finlay and Parsnip Rivers that now form the Williston Reservoir.
Pre-development baseline characteristics for fish habitat and populations would be best described before work began on reservoir preparation in the early 1960’s. Over a period of several years, reservoir
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preparation involving mass clearing of timber in the lowlands surrounding the Finlay and Parsnip Rivers probably resulted in significant aquatic impacts.
Although limited, the following report provides the most detailed analysis of possible effects of reservoir development on fish populations and habitat located during this document search:
Fisheries problems associated with the development of the Peace River and its upper tributaries for hydro-electric purpose. 1959. Province of British Columbia, Department of Recreation and Conservation, Fisheries Management Division. 25p. (this document is attached to this report as a .pdf file)
This report provides information on some basic characteristics of the river basin including data on hydrological patterns, general observations on river morphology, water clarity, ice free periods, predictions of hydrological changes and some potential impacts on fish populations.
The report does not provide raw data or quantitative analysis but rather information on species presence/absence and relative abundance in various reaches of the main stems and some tributaries of the rivers to be flooded. The observations are based on sampling by seine-netting, gill-netting and angling in August 1959 at eight sites along the upper Peace, Parsnip and lower Finlay Rivers, at the mouth of the Clearwater River, tributary to the Peace, and at Summit Lake, headwater of the Pack River. Exact locations of the sampling are not given, nor is any other information on methodology provided.
Some information on species presence, relative abundance and typical aquatic habitat conditions is also provided that is based on the local environmental knowledge of fishers and other residents of the Finlay Forks area.
Although this information is not robust and cannot be used in a quantitative analysis, it nevertheless can be useful in a general discussion of fish habitat and species changes since development.
Wildlife Data
Even less systematic research documentation was located pertaining to wildlife populations in the regions affected by the Williston reservoir. There is very limited data available from any systematic inventories of habitat or species conducted in the Peace River area affected by hydroelectric development. Therefore there is little data that can be used to conduct a quantitative analysis of changes in species distribution, habitat use or population composition for the area as a whole.
It is concluded that an analysis of effects on wildlife will have to rely upon a series of general observations reported over the pre-development years and local environmental knowledge of long-term residents. Any measured analysis would primarily focus on mapped habitat change and consideration of wildlife potential.
Several documents do report on wildlife presence, distribution and abundance in the river basin. For example, in the 1930’s some study was conducted in the eastern regions of the Peace River in BC on the vertebrate fauna.
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McTaggart Cowan, I. 1939. Vertebrate Fauna of the Peace River District of British Columbia. Occasional Papers of the British Columbia Provincial Museum. No.1 Victoria. 102 p.
This work focused on the eastern region of the Peace District, as does most of the early material. It reports on some wildlife survey work during one season, including detailed habitat descriptions. The report recognizes and describes the importance of seasonal fluctuations in water levels on the major rivers and how this influences vegetation and wildlife habitat.
Hydrological Data
River flow patterns throughout the main stem of the Peace River and its major tributaries in the upper basin can be described using pre-regulation data. The existing data are not comprehensive for all reaches of the river, nor do they represent consistent periods of time. Data sets may also be of inconsistent quality. Nevertheless, there are long-term hydrometric data sets representing relatively consistent methods and reporting structure. Quality problems with particular data sets are described in many cases.
Hydrological data are of fundamental importance in the engineering studies for hydroelectric development. All of the available hydrological information available at the time was utilised in engineering analysis to design structures that optimize power production and economics.
B.C and B.B. Power Consultants Ltd. 1959. Hydrology Report - Peace River Hydro-electric Project. Peace River Power Development Company Ltd. (available at BC Archives GR880 Box 59 File P5)
There was no analysis done on the potential environmental effects of hydrological change by the developers before or during construction.
The Northern River Ecosystem Initiative is series of studies focused on the impacts of human development on aquatic ecosystems in the lower Peace, Athabasca and Slave River basins in Alberta and the Northwest Territories. The work built upon the series of studies under the Northern River Basins Study. This program of research excluded the portions of the river basins in British Columbia and Saskatchewan. The primary environmental data used to characterize the pre-Bennett dam period was hydrological data.
Hydrological data from pre-regulation years can provide meaningful information on changes in seasonal flow patterns that directly influence the development and maintenance of riverine habitats, particularly aquatic habitats and riparian vegetation communities. Regulation of seasonal flows can have long-term effects on riparian habitats and instream habitats in reservoirs as well as reaches hundreds of kilometres downstream of dams. Approximately 75% of the flow in the Peace River at the Alberta border originates at the Williston reservoir.
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Much is known about the general patterns of change that occur in the riparian communities of boreal river systems under different flow regimes (e.g. Nilsson, Jansson and Zinko 1997)4. In the absence of comprehensive pre-and post regulation field collected data for the upper Peace River system that documents changes in riparian communities, hydrological data coupled with aerial photos, descriptive accounts and oral history can assist in constructing a general description of the nature of the changes and how they have likely affected aquatic and riparian communities.
The hydrological data that exist in the archives of the Water Survey of Canada for the Peace River basin include flow data from the following stations in British Columbia (Figure 1) and Alberta (Figure 2).
Finlay River at Finlay Forks (07EB001) 1945-1967
Parsnip River near Finlay Forks (07EE002) 1957-1968
Peace River at Hudson Hope (07EF001) 1917-2010
Figure 3 Flow Monitoring Stations on the Finlay, Parsnip and Peace Rivers in BC
Peace River near Taylor (07FD002) 1944-2010
Peace River at Dunvegan Bridge (07FD003) 1960-2010
4 Nilsson, C., R. Jansson, and U. Zinko. 1997. Long-term responses of river-margin vegetation to water-level regulation. Science 276:798-800.
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Peace River at Peace River (07HA001) 1915-2010
Peace River near Carcajou (07HD001) 1960-1967
Peace River at Fort Vermillion (07HF001) 1915-2010
Peace River at Fifth Meridian (07KA002) 1960-1967
Peace River at Peace Point (07KC001) 1959-2010
Figure 4 Flow Monitoring Stations on the Peace River in Alberta
More detailed station information and sample hydrographs can be found in Appendix 4.
Water Quality Data
The only long term water quality monitoring station on the Peace River in BC is above the Alces River near the Alberta border. Regular water sampling there began only in 1984. The only water quality observations from the pre-hydroelectric period in the areas affected by reservoir development that have been documented are general descriptions of turbidity and colour.
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Film Imagery and Still Photos
A film released in 1967 entitled: “Canyon of Destiny” (27 min. colour, sound,BC Archives V2007:01/004.01) provides imagery useful in understanding the changes that were created by the Bennett Dam and the Williston reservoir. It communicates the degree to which speed to get the job done was the focus of the development planning and execution. There was little attention paid to any careful study of environmental and social impacts. That was of course typical for the times. The film narrative begins:
“One of the largest of its kind in the world today, this massive structure was built in record time and completed ahead of schedule. Here was a project wherein Man had joined forces with Nature to stop an ancient river, to store its mighty waters and harness their wasting power. Soon their rampant flow would be put under control to produce 3 million horsepower of electrical energy. But what was the background story? How had they achieved this triumph, and what part had Nature played in its fulfillment?”
The film shows how construction began in 1961 and two years later the river had been diverted around the building site. Footage of reservoir preparation activities show tree felling over huge areas, scrub removal and burning. It depicts the prior forest cover in the area, wetlands and riparian reaches from the ground and the air. The upper end of the Finlay River reaches that would be flooded show the extensive river flats, bars, points, shrub/swamp/marsh habitats and sand/gravel bars. The Finlay Forks area shows the extensive deciduous river bottom habitats. At the time, access to the river in these reaches was only possible by riverboat or plane.
The film “Canyon of Destiny” is available to view at the BC Archives but cannot be copied. Permission must be obtained from BC Hydro for copies.
Other older films held at the BC Archives showing the Peace River are primarily focused on the dam building and contain little footage of the undisturbed environment.
There is still photography that can provide additional information on the habitat characteristics in many reaches of the river. Some photos are clearly described in terms of location and can be used as one form of ground truthing for habitat mapping based on aerial photography. Several examples of still photos are attached as a separate file to this report.
Conclusions
Following this preliminary search for materials to inform historical reference points prior to hydroelectric development in the Peace River, it is concluded that there is information available that can contribute to a meaningful understanding of many of the environmental characteristics in the reaches of the Peace River system that have been affected by subsequent hydroelectric development. These include in particular:
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• Some rich descriptive material detailing wildlife and habitat observations at particular points in time along particular reaches of the river. These also provide some anecdotal indications of trends in fish and wildlife populations at various points in time. • Some limited fish survey data that can be used for general comparison but not in quantitative analysis. • Aerial photography in appropriate scales with sufficient geographical coverage to form the basis of a pre-post development habitat mapping project. This can provide an understanding of relative habitat loss throughout the river system. • Long-term hydrological records. Coupled with knowledge related to the effects of hydrology on aquatic and riparian habitats, these data can form the basis of a general understanding of the nature of changes to natural riverine processes that have already taken place and are ongoing.
In the absence of a formal pre-development environmental monitoring program, these sources of information, coupled with the oral history work currently being conducted, should be utilised in a cumulative effects assessment of any future hydroelectric development on the Peace River. The geographical scope of a cumulative effects assessment should extend to the whole river basin. The temporal scope should extend back in time to before the first river regulation project and into the foreseeable future.
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Appendices
Appendix 1 Restricted Access to Archival Records
It may be useful to consult the following records in future if any research on this topic is pursued. Catalogue entries from the BC Archives are listed below.
1. GR-0442 British Columbia Energy Board Energy Board records Originals 1960-1972
B: Provincial Power Study Box 35 Special studies
2. GR-1110 BRITISH COLUMBIA. PRINCE GEORGE FOREST DISTRICT. Originals, 1919-1981,
Operational records of the District Forester relating to forest administration. Includes annual reports, ranger meeting summaries, records regarding timber exports, forest protection, forest reserves, the Peace River hydro-electric projects, the Mica Dam flood basin, land use, timber cruising, silviculture, aerial photography, rights-of-way, timber sales and timber licences, Public Sustained Yield Units, and farm wood lot licences. Also contains construction and maintenance reports pertaining to ranger stations, lookouts, forest roads and trails, boathouses, telephone lines, and other Forest Service facilities. Consists of correspondence, memorandum, reports, licences and permits, plans, etc.
Finding aid: volume and file list.
Subject Headings Aleza Lake Experiment Station Prince George (B.C.) Omineca district (B.C.) Peace River district. Cariboo district (B.C.) Mica dam Water-power electric plants - British Columbia Peace River district
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Forests and forestry - British Columbia - Cariboo district Forests and forestry - British Columbia - Omineca district
Secondary Entries British Columbia. Fort George Forest District. Wenner-Gren B.C. Development Co.
7 42 M Peace River Reserve 1957-1962
8 43 M Peace River Reserve 1962-1963 8 44 M Peace River Reserve 1964 8 45 M Peace River Reserve 1964-1965 8 46 M Peace River Reserve 1965 8 47 M Peace River Reserve 1966-1967 8 48 M Peace River Reserve 1967-1968
9 49 M Peace River Reserve 1968 9 50 M Peace River Reserve 1968 9 51 M Peace River Reserve 1970-1971 9 52 M Peace River Reserve 1971-1972 9 53 M Peace River Reserve 1972 9 54 M Peace River Reserve 1972-1973
10 55 M Peace River Reserve 1973-1974 10 56 M Peace River Reserve 1970-1972 10 57 M Peace River Reserve 1973 10 58 M Peace River Reserve (studies and 1960-1969 maps)
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Appendix 2 Pre-Hydroelectric Aerial Photography Available for the Peace River Basin in BC
[Note: this list is incomplete and will be added to for the final report]
Available from GEO BC
Medium Scale 40 chain 1:31,680 Flown between 1939 and 1964
Large Scale 20 chain 1:15,840
1957 Peace Canyon almost to Halfway River
1963 Finlay, Parsnip, Finlay Forks
Available from the National Air Photo Library
1929 Scale 1:12,000
1949 Scale 1:40,000
1971 Scale 1:80,000
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Appendix 3 Selected Historical Descriptive Documents
Annual Report upon the Provincial Game Act 1915, Peace River District, Provincial Police Office, Fort St. John BC. 1916.
Canada. Department of Northern Affairs and Natural Resources. Water Resources Branch. 1962. The effect of regulation of the Peace River. Interim Report No.1. June 1962.
This report is focused on the effects of navigation downstream during reservoir filling. It includes hydrographic information and an explanation of data available at that time. No subsequent reports were located.
Department of Lands, Survey Branch. 1929. Peace River and Cassier Districts, Province of British Columbia. Extracts of Reports of British Columbia Land Surveyors. Victoria, BC.
Contains detailed observations of the natural resources of the area. This volume contains all of the land surveyors reports that existed to that date. (source BC Archives: NW 971.P B862)
Department of Lands and Forests. BC. 1951. Peace River South Land Utilisation Survey 1948-1951. Lands Service, Department of Lands and Forests, Victoria, BC. (source BC Archives: NW 971.1P C466)
Focused on classifying the lands south of the Peace River in the eastern portion on the border with Alberta for their suitability for agricultural development. Includes general information on the history of settlement, geology, physical features, climate, soils and land cover.
Haworth, Paul Leland. 1917. On the Headwaters of the Peace River: A narrative of a thousand-mile canoe trip to a little known range of the Canadian Rockies.
Provides detailed description of the lands and wildlife on the Peace River and up the Finlay River. Includes many photographs.
McMurchy. M. 1977. Historical references bibliography:a listing of materials relevant to the history of the Peace River region of Alberta. Peace River Regional Planning Commission.
McTaggart Cowan, I. 1939. Vertebrate Fauna of the Peace River District of British Columbia. Occasional Papers of the British Columbia Provincial Museum. No.1 Victoria. 102 p.
Patterson, R.M. 1968. Finlay’s River. Macmillan of Canada.
Pollon, E. K. Matheson, S. S. 1989. This Was Our Valley: the True Story of the W.A.C. Bennett Dam. Detselig Enterprises Ltd, Calgary. 401 p.
Province of British Columbia. 1959. Fisheries problems associated with the development of the Peace River and its upper tributaries for hydro-electric purpose. Province of British Columbia,
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Department of Recreation and Conservation, Fisheries Management Division. 25p. (this document is attached to this report as a .pdf file)
Unrau, N. 2001. Under these waters: Williston Lake before it was. Published independently. Available at: http://www.bcfs100.ca/docs/pdf/0/380.pdf
Van Kleek, Edith. 1980. Our trail north: a true story of pioneering in the Peace River country of northern Alberta /by Edith Van Kleek. Stettler, Alberta. 164 p
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Appendix 4 Pre-regulation Hydrological Data in the Peace River Basin
Examples of graphs representing one year of daily flow records as well as maximum and minimum discharge for the data set are given here. Comparisons between pre- and post regulation hydrographs can provide descriptive information about the changes in average patterns as well as the occurrence of extreme events that influence habitats.
Hydrometric station records are extracted from the Water Survey of Canada Archived Data http://www.wsc.ec.gc.ca/applications/H2O/index-eng.cfm
FINLAY RIVER AT FINLAY FORKS (07EB001)
There is one station on the Finlay River at Finlay Forks (07EB001) which is now in the Williston Reservoir. There are 23 years of data prior to regulation. This is not a long period of time to establish a baseline, however these data could be compared with patterns of longer data sets from the region, particularly hydrometric stations on the Peace River downstream, to develop a general understanding of how representative these data may be for a longer period of time.
Statistics corresponding to 22 years of data recorded from 1945 to 1967.*
Latitude 56°1'55" N Longitude 123°54'20" W Gross drainage area 43300 km2 Record length 23 years
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Period of record 1945 - 1967 Regulation type Natural
Hydrometric Period of record Operational schedule Gauge type measurement type
1945 - 1959 Flow Seasonal Manual
1960 - 1962 Flow Continuous Manual
1963 - 1967 Flow Seasonal Manual
PARSNIP RIVER NEAR FINLAY FORKS (07EE002)
There are 12 years of pre-regulation data for this station on the Parsnip River the location of which is now on the shore of the Williston Reservoir.
Statistics corresponding to 11 years of data recorded from 1957 to 1968.*
Station Information Active or discontinued Discontinued Province/Territory British Columbia Latitude 55°50'52" N Longitude 123°45'43" W Gross drainage area 20300 km2
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Record length 12 years Period of record 1957 - 1968 Regulation type Natural
Hydrometric Period of record Operational schedule Gauge type measurement type
1945 - 1949 Flow Miscellaneous Recorder
1957 - 1960 Flow Seasonal Recorder
1961 - 1968 Flow Continuous Recorder
PEACE RIVER AT HUDSON HOPE (07EF001)
There are 68 years of data from the station Peace River at Hudson Hope. These data demonstrate the significant difference in seasonal flow patterns in pre and post-regulation periods. The first graph shows daily data from 1961 and the second from 2010 with maximums and minimums for the period of the data set. A thorough analysis of the complete data set can demonstrate the changes in average seasonal flows as well as extreme events such as higher spring floods. Periodic extreme floods influence the morphology of the river channel, the transport of sediments, nutrients and plant propagules and generally increase the diversity of the riparian habitats.
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Statistics corresponding to 68 years of data recorded from 1917 to 2010.*
Station Information
Active or discontinued Active Province/Territory British Columbia Latitude 56°1'39" N Longitude 121°53'56" W Gross drainage area 73100 km2 Record length 68 years Period of record 1917 - 2010 Regulation type Regulated Period of record 1967 – 2010
Hydrometric Period of record Operational schedule Gauge type measurement type
1917 - 1922 Flow Seasonal Manual
1947 - 1948 Flow Miscellaneous Manual
1949 - 1951 Flow Seasonal Manual
1952 - 1952 Flow Continuous Manual
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1953 - 1954 Flow Seasonal Manual
1955 - 1955 Flow Continuous Manual
1956 - 1957 Flow Seasonal Manual
1958 - 1968 Flow Continuous Manual
1969 - 2010 Flow Continuous Recorder
2011 - 2012 Flow and Level Continuous Recorder
PEACE RIVER NEAR TAYLOR (07FD002)
Statistics corresponding to 66 years of data recorded from 1944 to 2010.*
Station Information
Active or discontinued Active Province/Territory British Columbia Latitude 56°8'9" N Longitude 120°40'13" W Gross drainage area 101000 km2 Record length 67 years
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Period of record 1944 - 2010 Regulation type Regulated Period of record 1967 - 2010 Hydrometric Operational schedule Gauge type Period of record measurement type
1944 - 1948 Flow Seasonal Manual
1949 - 1949 Flow Continuous Manual
1950 - 1951 Flow Seasonal Manual
1952 - 1952 Flow Continuous Manual
1953 - 1954 Flow Seasonal Manual
1955 - 1955 Flow Continuous Manual
1956 - 1957 Flow Seasonal Manual
1958 - 1959 Flow Continuous Manual
1960 - 2010 Flow Continuous Recorder
2011 - 2012 Flow and Level Continuous Recorder
PEACE RIVER AT DUNVEGAN BRIDGE (07FD003)
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Statistics corresponding to 47 years of data recorded from 1960 to 2010.*
Station Information
Active or discontinued Active Province/Territory Alberta Latitude 55°55'8" N Longitude 118°36'23" W Gross drainage area 135000 km2 Effective drainage area 135000 km2 Record length 47 years Period of record 1960 - 2010 Regulation type Regulated Period of record 1967 - 2010
Hydrometric Operational schedule Gauge type Period of record measurement type
1960 - 1969 Flow Seasonal Manual
1974 - 2012 Flow Seasonal (May-Oct) Recorder
Peace River at Peace River 07HA001
In these examples from 1961 and 2010 at the Peace River station in Alberta far downstream of the dams, the seasonal flow pattern is still dramatically evened out compared to pre-regulation patterns.
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Statistics corresponding to 71 years of data recorded from 1915 to 2010.*
Station Information
Active or discontinued Active Province/Territory Alberta Latitude 56°14'41" N Longitude 117°18'51" W
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Gross drainage area 194000 km2 Effective drainage area 192000 km2 Record length 71 years Period of record 1915 - 2010 Regulation type Regulated Period of record 1967 - 2010 Hydrometric Operational schedule Gauge type Period of record measurement type
1915 - 1931 Flow Continuous Manual
1932 - 1932 Flow Seasonal Manual
1957 - 1957 Flow Seasonal Manual
1958 - 1962 Flow Continuous Manual
1963 - 2012 Flow Continuous Recorder
PEACE RIVER NEAR CARCAJOU 07HD001
This station provides seasonal limited data.
Statistics corresponding to 8 years of data recorded from 1960 to 1967.*
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Station Information
Active or discontinued Active Province/Territory Alberta Latitude 57°44'32" N Longitude 117°1'57" W Gross drainage area 217000 km2 Effective drainage area 215000 km2 Record length 13 years Period of record 1960 - 2011 Regulation type Regulated Period of record 1967 - 2011 Hydrometric Operational schedule Gauge type Period of record measurement type
1960 - 1965 Flow Seasonal Manual
1966 - 1967 Flow Seasonal Recorder
2007 - 2012 Level Continuous Recorder
PEACE RIVER AT FORT VERMILLION 07HF001
At this station we can also observe a curtailment of the spring floods well downstream of the dams if we compare the years 1961 and 2010.
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Statistics corresponding to 30 years of data recorded from 1915 to 2010.*
Station Information
Active or discontinued Active Province/Territory Alberta Latitude 58°23'16" N Longitude 116°1'43" W Gross drainage area 227000 km2 Effective drainage area 225000 km2 Record length 46 years Period of record 1915 - 2010 Regulation type Regulated Period of record 1967 - 2010 Hydrometric Period of record Operational schedule Gauge type measurement type
1915 - 1922 Flow Seasonal Manual
1960 - 1960 Level Seasonal Manual
1961 - 1961 Flow Seasonal Manual
1962 - 1962 Flow Continuous Manual
1963 - 1966 Flow Continuous Recorder
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1967 - 1978 Flow Seasonal Recorder
1979 - 1993 Level Seasonal Recorder
2006 - 2012 Flow Continuous Recorder
PEACE RIVER AT FIFTH MERIDIAN (07KA002)
Statistics corresponding to 7 years of data recorded from 1960 to 1967.*
Station Information
Active or discontinued Discontinued Province/Territory Alberta Latitude 58°39'0" N Longitude 114°1'20" W Gross drainage area 282000 km2 Record length 7 years Period of record 1960 - 1967 Regulation type Natural Hydrometric Period of record Operational schedule Gauge type measurement type
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1960 - 1964 Flow Seasonal Manual
1965 - 1965 Flow Miscellaneous Manual
1966 - 1967 Flow Seasonal Recorder
PEACE RIVER AT PEACE POINT 07KC001
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Statistics corresponding to 52 years of data recorded from 1959 to 2010.*
Station Information
Active or discontinued Active Province/Territory Alberta Latitude 59°7'5" N Longitude 112°26'13" W Gross drainage area 293000 km2 Record length 52 years Period of record 1959 - 2010 Regulation type Regulated Period of record 1968 - 2010
Hydrometric Operational schedule Gauge type Period of record measurement type
1959 - 1960 Flow Continuous Manual
1961 - 1962 Flow Continuous Recorder
1963 - 1963 Flow Seasonal Recorder
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1964 - 2001 Flow Continuous Recorder
2002 - 2012 Flow and Level Continuous Recorder
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SITE C CLEAN ENERGY PROJECT Panel Hearing Submission November 25, 2013
Wildlife Valued Component: Furbearers, Ungulates, and Large Carnivores
R. Scott McNay, Wildlife/Forest Ecologist, Wildlife Infometrics Inc. on behalf of the Treaty 8 First Nations
© 2013 Treaty 8 Tribal Association
Table of Contents
1 INTRODUCTION ...... 4 1.1 Role of Scott McNay, Wildlife Infometrics Inc...... 4 2 REVIEW OF THE AMENDED EIS ...... 4 2.1 EIS Guidelines ...... 4 2.2 Proponent Information and Findings ...... 6 2.3 Informational Deficiencies ...... 8 2.4 Analytical Deficiencies ...... 10 3 REVIEW OF THE PANEL INFORMATION REQUESTS AND RESPONSES ...... 16 3.1 Informational Deficiencies ...... 16 3.2 Analytical Deficiencies ...... 16 4 ADVICE CONCERNING SIGNIFICANT RESIDUAL ADVERSE ENVIRONMENTAL EFFECTS ...... 20 4.1 Key Concerns Regarding Proponent Findings ...... 20 APPENDIX A – PROFESSIONAL PROFILES ...... 22
November 2013 3 © 2013 Treaty 8 Tribal Association
1 INTRODUCTION
1.1 ROLE OF SCOTT MCNAY, WILDLIFE INFOMETRICS INC. I am a professional biologist registered with the BC Association of Professional Biology, the BC College of Applied Biology, and the Alberta Society of Professional Biologists. I hold Masters- and Doctorate-level post-graduate degrees in forest wildlife studies from the University of British Columbia and have 32 years of experience in wildlife inventory, management, and research on a wide range of terrestrial species throughout BC and at localized areas in Alberta (see professional profile in Appendix A). My role was to provide a technical review of the Site C EIS and related materials concerning wildlife resources, specifically furbearers, ungulates and large carnivores including (but not limited to) EIS guidelines, baseline studies, response to information requests and amendments, and to provide advice regarding significant residual adverse environmental effects of the proposed Site C project.
2 REVIEW OF THE AMENDED EIS
2.1 EIS GUIDELINES
2.1.1 Wildlife Resources Spatial Boundaries (EIS Guidelines, Section 12.2.1 and Table 12.2) The Proponent proposes the LAA and RAA as described in Table 12.2. Local Assessment Area An approximate 4-km-wide corridor centered on the Peace River from Hudson’s Hope to the Alberta border; a 1-km-wide corridor centered on the existing 138 kV wood pole transmission line from the Peace Canyon Dam to Taylor and Fort St. John; a 400 m corridor centered on roads identified for upgrading; a 1-km wide corridor centered on new roads; and a 500 m buffer around the proposed quarry and till sites. Regional Assessment Area Peace Lowlands Ecosection
2.1.2 Wildlife Temporal Boundaries (EIS Guidelines, Section 12.2.2) The EIS will describe the temporal boundaries which will reflect the methodology described in Section 8 of these EIS Guidelines.
November 2013 4 © 2013 Treaty 8 Tribal Association
2.1.3 Wildlife Resources Baseline Furbearers (EIS Guidelines, Section 12.2.3.7) The furbearer baseline information will provide an understanding of the population estimates and distribution of beavers, distribution of potential fisher den trees, seasonal habitat use, orientation and size of fisher home ranges within the LAA as proposed by the Proponent. All species observations will be summarized, but the focus will be on species that are provincially listed. The baseline information will be collected following the protocols outlined in Inventory Methods for Beaver and Muskrat (RIC 1998i) and Inventory Methods for Medium Sized Terrestrial Carnivores: Coyote, Red Fox, Lynx, Bobcat, Wolverine, Fisher and Badger (RIC 1997b). Ungulates (EIS Guidelines, Section 12.2.3.8) The ungulate (including moose, elk and mule deer) baseline information will provide an understanding of the population estimates; habitat use; movement and migration patterns, including river crossings; and birthing site locations and characteristics within the LAA as proposed by the Proponent.
The baseline information will be collected following the protocols outlined in: Aerial-based Inventory Methods for Selected Ungulates: Bison, Mountain Goat, Mountain Sheep, Moose, Elk, Deer and Caribou (RIC 2002); Ground-Based Inventory Methods for Selected Ungulates (Moose, Elk and Deer) (RIC 1998j); and Ground-Based Inventory Methods for Ungulate Snow-track Surveys (D’Eon et al. 2006). Large Carnivores (EIS Guidelines, Section 12.2.3.9 The baseline conditions will be characterized using information from published studies and information made available to the Proponent from local, regional, and provincial organizations and governments.
2.1.4 Potential Effects of the Project and Proposed Mitigation (EIS Guidelines, Section 12.2.4)
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The EIS will assess how the Project has the potential to adversely affect habitat available for wildlife resources, as represented by the key species groups.
The potential to adversely affect wildlife resources will be assessed by taking into account the potential for the Project to result in changes to the following key aspects:
• Permanent and temporary habitat alteration and fragmentation; • Disturbance and/or displacement; and • Potential for direct and indirect mortality to individuals.
Should potential adverse effects be identified, the potential mitigation measures will be identified and will include a description of how the mitigation measures can address the potential adverse effects.
The EIS will describe project residual effects, and cumulative effects, if applicable, using the residual effects characterization described in Table 8.3. A statement of significance will be provided.
2.1.5 Summary of Residual Effects on Wildlife Resources (EIS Guidelines, Section 12.2.5) The EIS will summarize residual effects in a table format as shown in Table 8.4.
2.2 PROPONENT INFORMATION AND FINDINGS The potential residual effects presented by the Proponent respecting furbearers, ungulates and large carnivores are summarized in the table below (see EIS Table 14.19, Table 14.20, Table 14.21).
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Table 1: Summary of Characterization of Residual Effects
Key Species Furbearers Ungulates Large Carnivores Group
Residual Habitat Disturbance Direct and Habitat Disturbance Direct and Disturbance Direct and Effect Alteration and and Indirect Alteration and and Indirect and Indirect Fragmentation Displacement Mortality Fragmentation Displacement Mortality Displacement Mortality
Phase Construction Construction Construction Construction Construction Construction Construction Construction and Operations and Operations
Direction Negative Negative Negative Negative Negative Negative Negative Negative
Magnitude Low to Low Low Low to High Low Low Low Low Moderate
Geographic Site-Specific to Site-Specific - Local Site-Specific to Local Site-Specific Local Local Extent Local local Local
Duration Moderate Term Moderate term Moderate term Long-term to Moderate term Moderate Moderate term Moderate to Permanent Permanent Term term
Frequency Once to Continuous – Continuous Once to Monthly Continuous Monthly Continuous Continuous monthly Continuous
Reversibility Reversible- Reversible Reversible Reversible Reversible Reversible Reversible Reversible Irreversible
Context Low to High Low and High Low to High High resilience High resilience High High resilience High resilience resilience resilience resilience resilience
Level of Low to High Low to High Low Moderate to High High Moderate Moderate Confidence High
Probability Low to High Moderate Low Moderate to Moderate Low Low Low High
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2.3 INFORMATIONAL DEFICIENCIES
1. Impacts to ungulate ranges other than winter and natal ranges were not evaluated (ab_0001-327) In order to fully understand the adverse effects of the proposed Project on ungulates, a detailed study of all important habitat features during the life cycle of a specific species is required. Focusing only on winter habitat does not give a complete picture of the habitat requirements of the animal and does not adequately inform decision makers about impact severity. Using winter habitat use alone results in a significant data gap for effects assessment purposes. The Proponent’s response is a justification for focusing the EIS on winter range. There is agreement that winter range is a critical habitat. However, other ranges should have also been considered because impact to winter range is not the only concern. All seasonal ranges are important to wildlife, and the Proponent cannot simply ignore a particular seasonal range value until it has been proven that there will be no material residual adverse effect to that range. The Proponent argues that winter range is the most limiting range type for ungulates and hence the only range that needs evaluation under an impact assessment. The argument is inappropriate since ungulates and other wide-ranging wildlife have significantly different seasonal range locations and needs. If the project has a disproportionate impact on a range other than winter range, then that range could become limiting. Consider for example, that survival rates during winter cannot be isolated from, and are not independent of, the relative benefits received from other seasonal ranges. As further rationale, the Proponent implies that a focus on winter range [only] is aligned with approaches used by regulatory authorities but that is incorrect. While regulatory authorities do address winter range issues for ungulates, other range types are also addressed depending on species and circumstance. As pointed out elsewhere (see ab_0001_356), it is simply wrong to restrict an effects assessment to any single range type until it has been proven the other seasonal ranges and life requisites will be unaffected.
2. Consideration of potential project effects on caribou is missing (ab_0001-332) BC Hydro was requested to provide evidence and rationale for the determination that the proposed Project will have no interactions with caribou. The Proponent used a technical memo on caribou in response to the IR for more detailed analysis supporting the notion that the proposed Project is not expected to
November 2013 8 © 2013 Treaty 8 Tribal Association have an adverse effect on that species. The principle pieces of evidence were noted as: 1) the claim that no caribou use the area except for a minor overlap of the West Pine Quarry, 2) the overlap at the quarry is not within designated critical winter range, and 3) that because the quarry has been in operation since 2001, continued operation will not create further adverse effects. Since caribou are a threatened species and many populations are in steep decline (including those adjacent to the Project area), recovery planning for this species is focused on restoring environmental conditions so that future populations may exist in a self-sustaining condition. Restoration activities will be pursued well beyond the current range of the species because caribou range in general is known to have contracted significantly in response to decades of anthropogenic disturbance. Historic records and Aboriginal Traditional Knowledge have shown that caribou used the project area in the past and habitat mapping used in current recovery planning has identified areas within the Project area to be important for recovery of caribou populations. Furthermore, current designated areas (e.g., UWRs and WHAs) have yet to be proven effective as a recovery tool for declining populations (i.e., these measures are used by Government to maintain populations not to recover them). Recommended recovery actions go well beyond winter range alone and include restoration and protective measures for calving and summer range, rut range, as well as restrictions on matrix habitat between these ranges. It is for these reasons that the Proponent’s response to the IR is considered inadequate. The proposed Project does in fact overlap areas that are considered important for recovery of adjacent caribou populations (i.e., the Moberly herd) and will have a significant impact on the likelihood of interaction between the Moberly and Graham River caribou herds, the interaction between these herds being an important indicator of population recovery. By definition, any increase in or continuation of anthropogenic disturbance within the recovery plan area will be counter to recovery of caribou populations in the area.
3. There is essentially no baseline information on carnivores (ab_0001-370) The conclusion that the proposed Project is not expected to have residual effects on large carnivores cannot be substantiated based on the available data and information presented in the EIS. In response, the Proponent merely reiterates that an analysis of large carnivores was described in the EIS. The IR forwards the notion that the analysis was insufficient. The Proponent has not provided clarity in response to the IR, altered the text of the EIS in a
November 2013 9 © 2013 Treaty 8 Tribal Association manner that addresses the IR, or provided a rationale based on substantive evidence for failing to address the IR. When addressing the lack of baseline information on carnivores, the Proponent states that: “telemetry studies would not be required because the habitat requirements of the species mentions is well understood, and they are common (black bear, wolves, coyotes) or unlikely to be found in the Peace River valley (grizzly bear and cougar)”. Notwithstanding our disagreement about habitat requirements for these species being well understood, the most significant reason for undertaking baseline studies on carnivores is to gain information about relationships with prey densities. The predominant effect of the Project will be to displace prey from the LAA thereby forcing them to use other adjacent habitats. These habitats may, or may, not have security from predators. Regardless, a new dynamic will be established between predators and prey and the assessment of impact from the Project needs to address and characterize that dynamic.
2.4 ANALYTICAL DEFICIENCIES
4. Substandard sample sizes for ungulates Sample sizes and analytical techniques used to assess current environmental conditions for ungulates are substandard in many ways: • The study was conducted in a period of moderate to low snow accumulation and so conclusions about use of the potentially impacted area by ungulates must be qualified within that context. • While it is maybe true that the author(s) could claim that they have interpreted the collected data from ungulate baseline studies, the level of interpretation was nothing more than general qualitative statements which sounded more like personal opinion rather than results from technical assessment (i.e., a general lack of statistical tests). • It is not clear (in the ungulate baseline studies) how the project design and subsequent analyses incorporated the standard primary (updstream/downstream of proposed dam, inside/outside of the anticipated reservoir footprint) and secondary (species, sex, temporal, geographic, behavior, weather) analytical stratifications or that the sample size (i.e., number of animals) was sufficient. In fact, there is really no mention of a statistical sampling design and there are few to no results presented in any statistically meaningful way. For example, one would typically rely on statistical parameters to indicate similarity or differences in results but the authors often used qualitative descriptions like “very long movements”, “did
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not have distinct seasonal ranges”, etc. In the one case where proper statistics were reported, interpretation of the results and the conclusion drawn were incorrect. For example, the author(s) states that “results show that elk numbers have steadily increased” but actually the results don’t show that at all. Elk numbers in recent years are significantly greater than they were in 1991 but have not changed significantly since 2006. I can say that because in this one case, sufficient statistics were presented to allow an independent assessment of the data. • The collected data may be sufficient but analyses and interpretation of the results has yet to be completed so it’s difficult to say for sure if the study is adequate. There was a general absence of any true analysis (other than occasionally referring to averages with no presentation of other statistics). There was no presentation of the experimental or sampling design to help establish an analytical context. Without this context, it is next to impossible to understand what the results really mean. An example, there was a lot of discussion presented about the variance in home range sizes among the sample of moose and deer.1 It would be more helpful to have this variance associated with the factors leading to that variance (i.e., through the use of some modeling). Doing so would help inform the impact assessment. Simply discussing the breadth of home range sizes does nothing to inform the impact assessment. • In the case of an EA, is it proper to assume that one sex is the most important to study? One can make the argument that females contribute to population dynamics in an important way (especially for polygynous mating systems). However, if by sexual range segregation, males are more at risk of adverse project effects than this must be addressed in the impact assessment and by appropriate mitigation. I forward the notion that it is incorrect to have made the assumption about females being more important.
1 Keystone Wildlife Research Ltd. September 2012. Peace River Valley Ungulate Study Program Final Report, p. 61.
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• I am particularly concerned about the lack of a systematic and unbiased approach to determining animal behavior types and seasons. Because these are very likely to be two of the most important explanatory factors, the rest of the analyses become a house of cards dependent on how these stratifications were made. Seasons, for example, could be defined based on a variety of things – the calendar, day length, temperature, forage condition, etc. Some (but definitely not all) animals will be in a position where they will need to move from one range to another every year (obligate migrators) because the specific environmental conditions regularly achieve some threshold value instigating the movement. Some animals may apparently never need to move (resident) for the opposite reason, environmental conditions rarely reach the threshold. Still other animals may need to move on an apparently irregular basis; when and if forced to move (facultative migrators). If seasons were defined based on the calendar, obligate and facultative migrators will be judged to have unexplained variance (movement types, habitat selection patterns, use of the peace valley position, etc.) because of the inherent annual variance in when the environmental conditions change. The same is true for any other arbitrary approach to establishing the definition of seasons. My recommendation is to find an analytical approach to distinguishing seasonal movements from daily movements and use the dates of those movements to define seasons – likely different each year. This will help track the variance in observations and make statistical models more robust. It would also hopefully lead to more ecologically meaningful seasons (e.g., rut, natal, migration, etc.). Without such an approach, there will be little to instill confidence in the subsequent explanation of what factors do or do not contribute to explaining variance around subsequent analyses (e.g., home range sizes, habitat use patterns, survival estimates, use of the valley or anything else) • There was a lot of data pooling (example day-time and night-time locations, male and female locations) on the basis that the factor levels did not explain any of the variance but no results of the statistical tests were presented. • White-tailed deer samples were opportunistically taken from another study with objectives that do not suit the EIS. • One of the more significant analytical deficiencies for interpretation of the ungulate baseline studies, and the wildlife VC in general, is that the LAA for wide-ranging animals was considered to be the same 1,000m buffer as was used for vegetation indicators. This was noted as a concern in review of the draft EIS Guidelines as follows: The preliminary local and regional assessment areas in the Draft EIS Guidelines have no ecological basis and no basis in the exercise of
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Section 35(1) rights. The Project would force wildlife into adjacent habitats. The EIS Guidelines present no evidence concerning current home ranges of wildlife species potentially affected by the Project that would justify the selected spatial boundaries based on literature, telemetry studies or field studies. Details regarding this specific deficiency are expounded upon below (see section 3.2, Inappropriate LAA JRP #58)
5. Potential effects on natal range (ab_0001-343) The evaluation of potential adverse effects on natal range is suspect. It is still unclear if natal sites were actually confirmed or not – it appears as though there was no field verification. The Proponent was asked to clarify why no information was collected in order to confirm species (e.g., material for conducting DNA analysis e.g., hair fragments, etc.) since collection of evidence at birthing sites would have been relatively straightforward. The Proponent’s response seems to indicate that the potential birthing sites were identified by analysis of information from radio-collared animals but were not actually confirmed as birthing sites. If this is true then the subsequent interpretation of results is suspect and the entire assessment of impact to ungulate natal range is of little to no value.
6. Effects on wildlife mortality (ab_0001-329-331) The Proponent presents the perspective that the proposed Project will not cause excessive harm to, or lead to the death of, animals but rather animals will simply be displaced from the footprint into adjacent habitats. This is a fallacy designed to support the notion that the project will not have significant adverse effects. Table 14.2 Rationale for the Exclusion of Suggested Species Canada Lynx A species whose population and density is strongly linked to cyclical fluctuations in prey (especially snowshoe hare). Since changes to snowshoe hare are not expected, the same is assumed for Canada lynx. The above assumption is invalid. Animals will die after moving to adjacent areas as a result of intra-specific competition. The Proponent was requested to modify the wording in Table 14.2 to reflect the reality concerning changes to the population of lynx that would result from the proposed Project. The Proponent disagreed that the wildlife populations are at ecological carrying capacity and that there is an adjacent area of suitable habitat that is vacant or otherwise able to
November 2013 13 © 2013 Treaty 8 Tribal Association support the animals that would be displaced from the footprint once flooded. Since ecological carrying capacity was the expression used to characterize the condition of this hypothetical adjacent area, the animal population (e.g., squirrel, lynx, etc.) in the Proponent’s argument must not be at full capacity for some non-ecological reason – can the Proponent describe what non-ecological factors might lead to that condition?
7. No consideration of habitat potential or capability (ab_0001-336, ab_0001-371) The Proponent did not make comparisons of current conditions (with and without the project) to unmanaged natural conditions (i.e., habitat potential or capability). There is no other way to properly address the criteria of magnitude (i.e., …comparison to natural…variation) and context (i.e., ...already been adversely affected…). The Proponent states they took into account a comparison to natural or background variation. However, there was no determination of environmental conditions under a scenario of natural, unmanaged (i.e., potential) conditions. The Proponent has failed to demonstrate how this comparison to natural conditions was made. There are no methods or documentation to demonstrate transparency around the analysis. For clarification, the IR in ab_0001-336 restated below was not suggesting the development of any new criteria to be used in the characterisation of residual effects but rather to adhere to the full criteria as outlined in Table 8.3 of the EIS Guidelines. ab_0001-336 In general, there is no mention of capability modeling for the indicators. The suitability modeling that was done represents a planning scenario characterized by current baseline conditions. An ecological baseline (i.e., capability modeling) will be required in order to address the criteria of magnitude (i.e., …comparison to natural…variation) and context (i.e., ...already been adversely affected…) in the assessment matrix. BC Hydro was requested to conduct capability modeling for each of the proposed indicators. The definitions of capability and suitability are understood. It is not necessary for the Proponent to restate these definitions. The Proponent claims “capability is used to assign value to habitats in their pristine conditions which are not being considered in the EIS”. We know that already. The IR is for augmenting the effects assessment with capability mapping because there is no other way to properly address the criteria of magnitude (i.e., …comparison to natural…variation) and context (i.e., ...already been adversely affected…) in the assessment matrix. The Proponent claims that “an analysis of capable habitat would indicate a smaller magnitude than using current suitability” but that is not the appropriate comparison anyway. The more appropriate comparisons
November 2013 14 © 2013 Treaty 8 Tribal Association would be current suitability versus capability and current suitability plus the project versus capability. It is only by making these comparisons that one would begin to properly address the criteria of magnitude and context. Habitat capability classification and mapping would be a reasonable approach to estimating the losses of habitat already experienced especially in the valley bottoms of the main stem of the Peace River its major tributaries – the Parsnip and Finlay Rivers – that have been flooded already. The T8FNs have a very high level of interest in the cumulative effects of these projects collectively on the habitat capability of the environments that existed when Treaty 8 was signed. ab_0001-371 Table 8.3 of the EIS Guidelines reads as follows: Magnitude – This refers to the amount of change in a key indicator or variable relative to baseline case (low, moderate, high), consideration is given to factors such as the uniqueness of the effect, and the comparison to natural or background variation. The descriptions of criteria contained in Table 14.18 do not parallel the definitions presented in the EIS Guidelines to the extent that the proposed quantitative measure is either incomplete or misleading. The description of “magnitude” contains only part of the requested characterization of magnitude as there is also the need for a comparison to natural or background variation, which can only be done by considering hypothetical unmanaged (i.e., potential) ecological conditions. There is no measure associated with unmanaged ecological conditions. In characterizing the magnitude of the residual effects on wildlife resources, the Proponent was asked to include a measure associated with comparisons to natural, unmanaged ecological conditions. The Proponent states they took into account a comparison to natural or background variation. However, there was no determination of environmental conditions under a scenario of natural, unmanaged (i.e., potential) conditions. The Proponent has failed to demonstrate how this comparison to natural consideration was made. There are no methods or documentation to demonstrate transparency around the analysis. For clarification, the IR was not suggesting the development of any new criteria to be used in the characterisation of residual effects but rather to adhere to the full criteria as outlined in Table 8.3 of the EIS guidelines.
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3 REVIEW OF THE PANEL INFORMATION REQUESTS AND RESPONSES
3.1 INFORMATIONAL DEFICIENCIES
8. Failure to address impacts on caribou (JRP-IR#54) In response to the Panel’s request for information on mitigation steps for caribou, the Proponent fails to recognize that most of the proposed Project, including both source areas for rip-rap, are located within the recovery planning area for the adjacent Klinse- Za (formerly, Moberly) caribou herd. This herd is close to extirpation, has significantly retracted its range from the historic distribution, and is undergoing intensive and aggressive management actions in attempts to recovery the population and its former distribution. The potential for residual adverse effects on caribou was not assessed. Nevertheless, effects were acknowledged to be likely since mitigations were proposed. However, the mitigations simply minimize disturbance but any further disturbance to within the former range of the Klinse-Za herd is counter to the recovery goals and actions. Mitigations therefore are deemed ineffective – there will be a residual adverse effect on caribou.
9. Failure to address potential impacts on black bear, hare, squirrels (JRP-IR#51, IR#56, IR#57) Although other arguments were made, the significant portion of argument for excluding black bear, hare, and squirrels from the EIS is on the basis that these animals are habitat generalists and common in the region. The fact does remain however, that the proposed Project will have a significant effect on these species populations at the local level by a permanent, irreparable loss of habitat that will eventually translate to loss of the local population (see the section below on Failure to estimate wildlife mortality).
3.2 ANALYTICAL DEFICIENCIES
10. Inappropriate LAA (JRP-IR#58) The Proponent notes the following in response to JRP-IR#58: Disturbance buffers suggested in other BMPs for other habitats and species (including species groups known to occur in the LAA) range between 30 m and 500 m. Therefore a 1,000 m buffer was conservative. These guidelines are species specific, do not apply for all species indicators chosen in the EIS, and focus only on direct impacts of a disturbance to a specific target. A comprehensive assessment of potential total impact needs to consider both direct and
November 2013 16 © 2013 Treaty 8 Tribal Association indirect impacts resulting from the project. If a wide-ranging animal is displaced away from the PAA, then the effect will permeate throughout that animal’s home range, which is likely substantially further than the LAA in many cases. Although the Proponent states that wide-ranging animals were taken into account, the potential project effects on these species were apparently still considered at the standard levels as defined in the EIS (site specific, LAA, and RAA) with the extent affected almost always being considered to be site-specific or local (Table 14.19, page 14-69). The Proponent stated that “species with larger home ranges may be more tolerant of localized disturbance” and that “species tolerance was included when characterizing a residual effect”. Not only are the methods for this approach opaque, but the assumption about tolerance is categorically wrong, and the type of disturbance under consideration was identified incorrectly assessed as localized disturbance [from the project]. By first principles, animals will be displaced from the PAA – there is no range of tolerance on that effect since terrestrial habitat is changed to aquatic habitat. Furthermore, the assessment of impact appears to be restricted to sensory disturbance rather than including the more significant effect, which would be from increased competition or predation among species as wildlife is forced out of the PAA and into adjacent (already occupied) habitats. For wide-ranging species, this effect would translate to a regional-level (not local) impact. The Proponent does state that alteration of habitat includes, among other things, increase in predation ((EIS Section 14.3.1, page 14-15) but again, this is presumably considered only within an incorrectly defined LAA. Also, we note there was no mention or consideration of increased competition. Due to a baseline study design that was apparently lacking in consideration of these more important potential effects of the project, impact areas for most key indicators of the wildlife VC are therefore not available or incorrectly defined and the extent of the potential impact is underrepresented in the assessment of potential effects.
11. Insufficient sample sizes (Ungulates) (JRP #60 and JRP #60S)
The Proponent was asked to address the unlikely case that 10 samples of white-tailed deer from an earlier study were sufficient to characterize distribution of white-tailed deer within the LAA. The Proponent’s response focused on where the data came from and how the data were used in the assessment but failed to answer the panels question about the distribution of white-tailed deer in the LAA. Most of the 10 white-tailed deer were caught and stayed significant distances away from the LAA. The Proponent makes the case that the deer habitat use was consistent with what is expected in the “study area” but fails to address what this means in terms of the LAA. Even when
November 2013 17 © 2013 Treaty 8 Tribal Association pressed to specifically acknowledge that white-tailed deer may have a wider distribution in the LAA, the Proponent failed to respond.
The discussion regarding white-tailed deer is only an example regarding the adequacy of sample sizes in the ungulate baseline studies. Others were revealed in previous information requests as outlined below. ab_0001-363 The Proponent claimed that “Islands in the Peace River valley and in the reservoir area in general were rarely used for birthing by collared moose, elk, mule deer, or white-tailed deer.” We noted however, that only 81 of a predicted 5,500 ungulates (i.e., 1.5% sampled) were collared and followed for a relatively low number of birthing seasons. The determination above is a result of low numbers of animals being collared in the LAA. The Proponent also claims that “Potential effects of the Project on reproduction of ungulates are expected to be low, since only a small proportion of habitats used for birthing will be influenced by the Project.” The Proponent was requested to: a) indicate how these determinations can be made without the appropriate data collected to support them; and b) explain how this conclusion can be made with such a limited amount of data. The Proponent’s assertion that “the proportion of collared animals exceeds that generally undertaken for many management applications undertaken by regulatory authorities…and is therefore sufficient …” is irrelevant. What does matter is if the sample size is sufficiently robust to provide for statistical significance and strong science. The percent of animals collared in this study is an order of magnitude lower than standards for most scientific studies. For this reason the assumption that the collared animals represent the larger population cannot be substantiated.
12. Failure to estimate wildlife mortality (JRP-IR#37, IR#43, and IR#43S) In addressing the places where mortality risk may be high, the Proponent states (JRP #37) “For most species mortality risk will be highest during habitat alteration and flooding associated with reservoir filling.” This is the place and time when mortality will be most direct. For large-ranging mammals, the direct mortality is unlikely to be the most significant component compared to mortality that is likely to occur to displaced animals. It is our opinion that mortality risk for displaced animals is difficult to assess without consulting results of previous projects of a similar nature. Displaced animals
November 2013 18 © 2013 Treaty 8 Tribal Association are likely to undergo an increase in risk of mortality and some could undergo that change at a considerable distance from the LAA as it was defined. Although the Proponent did provide density estimates for ungulates (JRP IR-43S), those estimates were not used to calculate the potential loss of animals due to the permanent, irreparable damage to ungulate habitat. The Proponent refuses to discuss numbers of animals that are likely to be lost due to effects of the proposed project. The number of animals that will die is exactly equal to the density of the population multiplied by the area of habitat loss. The quantitative analysis to support the impact assessment is easily done and would help make the assessment more transparent. If population estimates can be “generated with a reasonable degree of confidence”, then so too can population density estimates. The population density can then be extrapolated to the footprint based on habitat quality. The Proponent argues in JRP #43 that population estimates (numbers or density) are not necessary for an assessment of potential project effects. The Proponent considers that: Estimates of population sizes are impractical, particularly for large numbers of species over a large area, because of the input data requirements involved, and often vary widely. Project effects on population cannot be reliably distinguished from the many other factors affecting the bird populations in a given area at any given time, including disease, hunting/trapping pressure, predation, social interactions, seasonal and interannual variation, detectability, population cycling, migration rates and timing, mortality rates, weather, and inherent variability. Evaluation of potential population effects due to the Project would be consequently less certain.” We are not sure what has prompted the Proponent to take this view. Population estimates for species are a fundamental component of wildlife management, have been undertaken for many decades, have standard protocols for implementation, and are a necessary and required component of characterizing baseline environmental conditions for environmental assessments in British Columbia. Under the proper sampling design, it is entirely possible to parse out and distinguish project effects on population change from other underlying natural factors that influence that dynamic. In order to effectively articulate the potential for project effects, it is standard to estimate the amount of affected habitat (ha) and to translate that into how many animals are likely to be affected based on an estimate of population density (#/ha). Loss of habitat will lead to loss of animals and we need to know the significance of that loss.
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The proposed Project will irreparably remove terrestrial habitat within the flood zone to the erosion impact line (i.e., the Project Activity Area; PAA) and will indirectly affect an area minimally equal to the cross-section distance of one animal home range away from the LAA (hereafter, the Indirect Disturbance Area; IDA). Also, depending on species typical home range sizes, terrestrial animals will be either wholly or partially displaced out of the LAA, hence causing an indirect project impact across their post-displacement home range. The fact is that some animals will also die as a result of that indirect impact. Some animals will die because they cannot be displaced to adjacent habitats (lack of appropriate motility) and others will die through intra- and inter-specific competition (including predation). This is because animals in adjacent areas are already at equilibrium (not intended to imply a steady state). Immigration of displaced animals will increase population density initially but the original population density will prevail through increased mortality until the pre-project equilibrium is restored.
4 ADVICE CONCERNING SIGNIFICANT RESIDUAL ADVERSE ENVIRONMENTAL EFFECTS
4.1 KEY CONCERNS REGARDING PROPONENT FINDINGS As noted, key pieces of missing information render the assessment of the wildlife VC incomplete: seasonal range use other than during winter and natal season, caribou, and carnivores. Key analytical deficiencies render the assessment of the wildlife VC unreliable for use in the EIS. The conclusions regarding significance of residual adverse environmental effects on the wildlife VC are therefore without basis. The establishment of LAA and RAA for the wildlife VC is hopelessly flawed. In addition, we noted that the Proponent chooses to mix spatial scales and twist arguments about spatial extent to suit their needs for determination of no significant adverse residual effects (in many cases) to the wildlife VC. This is exemplified by the Proponent’s response to JRP #43 where the Proponent states: The Project would impact only a very small portion of the habitat landbase for species which are common and widespread throughout the Province (e.g., ungulates, black bears, many furbearers, many passerines and waterfowl). The potential for the Project to result in an adverse change in the habitat of these species is limited to the LAA. When measured at the Provincial level, the changes would be very small or not measureable and, consequently, do not contribute to the determination of a significant adverse effect on Wildlife Resources.
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In reality, the geographic extent for effects on most species was underestimated (i.e., it is not just the LAA) and in combination with the fact that the effect is absolutely irreversible (i.e., animals will die in proportion to the amount of habitat lost) and should therefore lean the Proponent towards the conclusion of a significant adverse residual effect on many species (i.e., displacement with be significant, and the resulting effects on mortality and predation will be significant). Furthermore, the spatial scale for determining significance is not the Province, as indicated above, but rather the regional area that is impacted. For ungulates and other large mammals, the proposed Project will lead to mortality that essentially cannot be mitigated in any way – loss of habitat leads to loss of animals – there is no way around that fact, as stated previously in our comments in ab_0001-369: In fact, mortality related to habitat loss cannot be avoided at all, neither can it be mitigated. The one example provided, …can be reduced with wetland avoidance… is avoiding habitat loss and not mitigating mortality due to habitat loss. The other mitigations provided are simply delaying the inevitable for animals that have not suffered direct mortality from flooding or lethal contact with humans. These displaced animals are forced to undergo intra- or inter-specific competition until adjacent areas have stabilized back to their original population density. For example, timing of works mitigations simply means that there will be less direct mortality and more indirect mortality. Avoiding the release of deleterious hydrocarbons, limiting sedimentation, and fencing along roads are all examples of limiting the area affected by the proposed Project, not mitigating against habitat loss. Mortality due to habitat loss cannot be mitigated. The extent to which the proposed Project can affect animals in adjacent habitats can be mitigated to varying levels of success.
For First Nations and others who use the wildlife resources for a variety of purposes, the permanent and irreversible change to the landscape has a direct and significant impact on wildlife in the area and hence on the way people will use the landscape.
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APPENDIX A – PROFESSIONAL PROFILES R. Scott McNay, PhD, RPF (BC), RPBio (BC), PBiol (AB)
12 Yukon Dr., Box 1087, Mackenzie, BC, V0J 2C0 Home: (250) 997-4943, Cell: (250) 997-7928
Career Objective
To provide innovative solutions to key issues of conflict that impedes the effective integration of management tactics for wildlife and the sustainable development of renewable natural resources.
Profile
• Accreditations include: Bachelor of Science, Masters of Science, Doctor of Philosophy, Registered Professional Forester (BC), Registered Professional Biologist (BC), Professional Biologist (AB). • 32 years of experience in ecological research and management including formal affiliations with academia (University of British Columbia), government (BC Ministry of Forests), industry (Slocan Forest Products), consulting (Wildlife Infometrics Inc.), and not-for-profit societies (Resources North Association); • Initiated, managed, and successfully completed large projects with multi-million dollar budgets (coastal black-tailed deer, coastal montane biodiversity, Omineca northern caribou project, effectiveness monitoring for mountain goat management, industrial environmental assessments) • Championed the use of habitat supply modeling and adaptive management (see published literature) • 34 peer-reviewed publications, lead author on 19.
Work Experience Forest/Wildlife Ecologist, Wildlife Infometrics Inc. Mackenzie, BC, 2004 – present In this position I: • Plan and conduct operational inventories of aquatic and terrestrial resources; • Plan, conduct, and report on original applied research concerning the interactions among industrial development and habitat values for sensitive terrestrial wildlife; • Plan, manage, and coordinate environmental studies associated with industrial Environmental Impact Assessments; • Develop techniques to further the application of habitat supply modeling as a tool to aid integrated planning for industrial and non-industrial natural resource values; • Assist in the development of policy and guidance documents associated with the conservation of terrestrial wildlife; and
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• Provide leadership in teams associated with the recovery of caribou in British Columbia including: BC Mountain Caribou Recovery Science Team (2004-present), Recovery Implementation Group for Northern Caribou in North Central BC (2000-2007), BC Peace Northern Caribou Committee (initiated 2012), First Nations Caribou Alliance (2011-present) Forest Biologist, Slocan Forest Products Ltd. Mackenzie, BC, 1997–2004 In this position I: • Guided the implementation of inventory and research programs on caribou, grizzly bears, moose, wolves, mountain goats, terrestrial forage lichens, and ecosystem mapping; • Consulted with Silviculture and Operations Foresters (1.4M cubic meters of Allowable Annual Cut) to provide advise and direction for plans and legal document submissions; • Provided advice and direction to Forest Planners (e.g., habitat modeling, landscape and stand- level biodiversity targets) for issues that affect forest management plans; • Developed or reviewed policy on the management of sensitive species; • Provided extension and liaison with researchers conducting investigations on sensitive species; • Planned, conducted, and reported; operational inventory of aquatic and terrestrial resources and applied research on management of biodiversity and management techniques within Wildlife Habitat Areas; • Planed, conducted, and reported operational trials of management guidelines concerning biodiversity. Wildlife Habitat Ecologist, B.C. Forest Service Victoria, BC, 1984–1997 In this position I: • Planned, conducted, and reported original applied research in wildlife habitat ecology, particularly the relationships between forest characteristics and wildlife responses; • Initiated a major program to enhance integrated management and sustainability of coastal Montane forests; • Initiated research projects concerning management of logging-road bridges as habitat for bats and integrated management of small coastal owls; and • Completed all phases of a 15-year project concerning the integrated management of forests and habitat for Columbian black-tailed deer.
Education PhD, Forestry (Wildlife Ecology) Univ. of British Columbia Vancouver, BC 1991–1995 Colorado State Univ.Ft. Collins, CO 1995 MSc, Forestry (Wildlife Ecology) Univ. of British Columbia Vancouver, BC 1981–1984
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BScF, Forestry (Wildlife Management) Univ. of New Brunswick Fredericton, NB 1976-1981
Awards and Distinctions
Canadian Forest Products Fellowship in Wildlife Management 1982-83 and 1983-84 Gilbert White Ganong Scholarship 1976
Scholarly Activities
Graduate students supervised I have acted as a field supervisor for several post-graduate students: • Laurie Kremsater (MSc) – Edge habitat for black-tailed deer (1994); • Jeff Morgan (MSc) – Summer habitat selection by black-tailed deer (1994); • Mandy Kellner (MSc) – Ecology of Montane bats (2001); • Randy Sulyma (MSc) – Management of pine-lichen woodlands (2001)
Visiting lecturer or speaker I have lectured or provided informal talks on an ad hoc basis to: • University of British Columbia (FRST 395); • University of Northern British Columbia; • University of Victoria; • Cowichan Valley Naturalists; • Nanaimo Fish and Game Protective Association. Memberships or Committees I am or have been a member of: • The Wildlife Tree Committee (technical advisor 1994-1997); • The Integrated Wildlife – Intensive Forestry Research working group (working member 1981-1991); • Mountain Caribou Technical Advisory Committee (working member 1998 – 2004); • Northern Caribou Technical Advisory Committee (working member 2000 – 2005); • Northern Caribou Recovery Implementation Group for North-central BC (2003-present); first five years as chair; • Mountain Caribou Science Team (working member 2004-present); • First Nations Caribou Alliance (working member 2011-present); • Peace Northern Caribou Committee (initiated 2012); • Mackenzie Land and Resources Management Plan round table (1998); • Risk to Biodiversity Technical Review Team (1999); • Forest Science Board Sustainability Program Advisory Committee (2004 – 2008); last two years as chair of the committee. Reviewer I provide technical reviews (approximately 2/yr) for the following: • Journal of Wildlife Management;
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• American Midland Naturalist; • Government agencies internal peer reviews; and • Other review solicited from other organizations, most predominately the Lands Office of many Aboriginal organizations. Consulting I consult with forest, wildlife, and lands managers on a regular basis (4/yr) for: • Government agencies regional and district staff; • Lands Offices of Aboriginal organizations (Saulteau First Nation, Halfway River First Nation, West Moberly First Nation, Takla Lake First Nation, Tsay Keh Dene, Kwadatcha); • TimberWest Forest Ltd.; and • Canadian Forest Products Ltd. I also consult on a less frequent basis (1/yr) to: • Alaska Dept. of Fish and Game; • Washington State Dept. of Fish and Game; and • Oregon Dept. of Fish and Game.
References
References can be supplied upon request.
Peer-reviewed publications
Bunnell, F.L., R.S. McNay, and C.C. Shank. 1985. Trees and snow: the deposition of snow on the ground - a review and quantitative synthesis. British Columbia Min. of Environ. and Min. of For., Research. IWIFR-17. Victoria. 440 p.
Bunnell, F.L., F.W. Hovey, R.S. McNay, and K.L. Parker. 1990. Forest cover, snow conditions, and black-tailed deer sinking depths. Can. J. Zool. 68:2403-2408.
Bunnell, F.L., K.L. Parker, R.S. McNay, and F.W. Hovey. 1990. Sinking depths of black-tailed deer in snow, and their indices. Can. J. Zool. 68: 917-922.
Cichowski, D., D. Culling, and R.S. McNay. 2012. Performance measures for Resource Review Areas for woodland caribou in British Columbia. Internal Rept., British Columbia Ministry of Forests, Lands, and Natural Resource Operations, Prince George, BC.
Eng, M.A. and R.S. McNay. 1990. Development of a habitat assessment and planning tool: A problem reference and project working plan. (EP 1087) British Columbia Min. of Environ. and Min. of For., Research. IWIFR-40. Victoria. 44pp.
Eng, M.A. and R.S. McNay. 1990. Using geographic information systems to assist with the integrated management of forestry and wildlife habitat. Pages 146-156 In (A. Chambers, ed.) Proceedings of the Forestry Wildlife Symposium, March 7-8, 1990. British Columbia Min. of For., Research FRDA 160. Victoria. 182pp.
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Eng, M.A., R.S. McNay, and R.E. Page. 1991. Integrated management of forestry and wildlife habitat with the aid of a GIS-based habitat assessment and planning tool. Pages 331-336 In (M. Heit and A. Shortreid, eds.) GIS applications in natural resources. GIS World, Inc. Fort Collins, CO
Eng, M.A., R.S. McNay, and R.E. Page. 1990. Integrated management of forestry and wildlife habitat with the aid of a GIS-based habitat assessment and planning tool. Pages 185-190 In (M.J. Heit, ed.) GIS- making it work. Proceedings of a workshop March 13-16, 1990 at Vancouver, British Columbia. FRDA 107. Victoria. 541pp.
Eng, M.A., R.S. McNay, and R.E. Page. 1989. Refinement of a model used to integrate the management of deer and forests. Page 67 In (J. McPhalen, ed.) GIS - a wider perspective. Proceedings of a workshop March 6-10, 1989 at Vancouver, British Columbia. 227pp.
Eng, M.A., R.S. McNay, D.W. Janz, L.L. Kremsater, I. MacDougall, and R.E. Page. 1992. Assessing and planning the spatial and temporal features of black-tailed deer habitat. Pages 81-111 In (J. B. Nyberg and W. B. Kessler, eds.) Proceedings of the Habitat Futures Workshop, October 16-20, Pack Experimental Forest, Eatonville, Washington. British Columbia Min. of Forests, Research. Victoria. 161pp.
Heath, R.H., R.S. McNay, and L.D. Peterson. 1988. Operational trials of winter habitat creation for black-tailed deer in young forests: Working plan. (EP 1095) British Columbia Min. of Environ. and Min. of Forests, Research. Victoria. 39pp.
Marcot, B.G., R.S. McNay, and R.E. Page. 1988. Use of micro computers for modeling silviculture-habitat relationships. USDA For. Serv., Pac. Northwest Res. Stn. Gen. Tech. Rep. PNW-GTR-228. Portland, OR. 19 p.
McNay, R.S. 2011. An expert-based modeling approach to inform strategic and operational land management decisions for the recovery of woodland caribou. Pp 131-152. In Perera, A.H., C.A. Drew, and C.J. Johnson (eds.) Expert knowledge and its application in landscape ecology. Springer Science and Business Media, New York.
McNay, R.S. 2011. Silviculture options for use in ranges designated for the conservation of northern caribou in British Columbia. BC Journal of Ecosystems and Management 12:55-73.
McNay, R.S. 2009..Spatial and temporal patterns of predation risk on woodland caribou in the Wolverine and Chase herds, north-central British Columbia 1991-2006. Peace Williston Fish and Wildlife Compensation Program Report No. 323. Prince George, BC 24p.
McNay, R.S. 2006. Towards comprehensive and transparent use of ecological information in decisions about recovery of mountain caribou. Pp. 90-99, In Multidisciplinary approaches to recovering mountain caribou in mountain ecosystems. Proceedings of a workshop held May 29-31, 2006 in Revelstoke, British Columbia. Columbia Mountains Institute of Applied Ecology. Revelstoke, BC.
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McNay, R.S. 1995. The ecology of movements made by Columbian black-tailed deer. PhD Thesis, Univ. of British Columbia. Vancouver. 194pp.
McNay, R.S. 1985. Forest crowns, snow interception, and management of black-tailed deer winter habitat. British Columbia Min. of Environ. and Min. of For., Research. IWIFR-19. Victoria. 111pp.
McNay, R.S. and F.L. Bunnell. 1994. Behaviourial limits to movement: the effect on habitat choices for Columbian black-tailed deer. Trans. Congr. Int. Union Game Biol. 21(2):295-303.
McNay, R.S. and R. Davies. 1985. Interactions between black-tailed deer and intensive forest management: problem analysis. (EP 923) British Columbia Min. of Environ. and Min. of For., Research. IWIFR-22. Victoria. 110pp.
McNay, R.S. and D.D. Doyle. 1995. Black-tail behavior. British Columbia record book.
McNay, R.S. and D.D. Doyle. 1990. The Integrated Wildlife - Intensive Forestry Research Program (IWIFR) Deer Project. N.W. Environ. 6: 365-366.
McNay, R.S. and D.D. Doyle. 1987. Winter habitat selection by black-tailed deer on Vancouver Island: a job completion report. (EP 923) British Columbia Min. of Environ. and Parks and Min. of For. and Lands, Research. IWIFR-34. Victoria. 90pp.
McNay, R.S. and J.M. Voller. 1995. Mortality causes and survival estimates for adult female, Columbian black-tailed deer. J. Wildl. Mange. 59:138-146.
McNay, R.S., D.D. Doyle, and R.E. Page. 1988. The spatial and temporal factors of managing black-tailed deer habitat: A research working plan. (EP 1078) British Columbia Min. of Environ. and Min. of Forests, Research. Victoria. 52pp.
McNay, R.S., J.A. Morgan, and F.L. Bunnell. 1994. Characterizing independence of observations in movements of Columbian black-tailed deer. J. Wildl. Mange. 58:422-429.
McNay, R.S., R.E. Page, and A. Campbell. 1987. Application of expert-based decision models to promote integrated management of forests and deer. Trans. N. Am. Wildl. Nat. Resourc. Conf. 52: 82-91.
McNay, R.S., L.D. Peterson, and J.B. Nyberg. 1988. The influence of forest stand characteristics on snow interception in the coastal forests of British Columbia. Can. J. For. Res. 18: 566-573.
McNay, R.S., G. Sutherland, and D.G. Morgan. 2011. Standardized occupancy maps for selected wildlife in Central British Columbia. BC Journal of Ecosystems and Management 12:118-135.
McNay, R.S., D. Heard, R. Sulyma, and R. Ellis. 2008. A recovery action plan for northern caribou herds in north-central British Columbia. Forrex Forest Research Extension Partnership, Kamloops, BC. Forrex Series 22.
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McNay, R.S., B.G. Marcot, V. Brumovsky, and R. Ellis. 2006. A Bayesian approach to evaluating habitat suitability for woodland caribou in north-central British Columbia. Can. J. For. Res. 36:3117-3133.
Morgan, D.G., R.E. Page, M.A. Eng, and R.S. McNay. 1994. Deer habitat in a visualized programming environment. Trans. Congr. Int. Union Game Biol. 21(1):357-363.
Morgan, D.G., M.A. Eng, R.E. Page, and R.S. McNay. 1997. An object-oriented decision support system for black-tailed deer on Vancouver Island. Pp. 31-37 IN I. D. Thompson (Compiler) The status of forestry / wildlife decision support systems in Canada: Proceedings of a symposium. Held in 1994 at Toronto, Ontario. Nat. Res. Canada, Can. For. Serv., Sault Ste. Marie, Ontario. 68pp.
Nyberg, J.B., R.S. McNay, M. Kirchhoff, R. Forbes, F.L. Bunnell, and E.L. Richardson. 1989. Integrated management of timber and deer: coastal forests of British Columbia and Alaska. USDA For. Serv., Pac. Northwest Res. Stn. Gen. Tech. Rep. PNW-GTR-226. Portland, OR. 65pp.
Richardson, E L., R.S. McNay, J.B. Nyberg, and D.W. Janz. 1990. Applying the handbook to habitat management planning. Pages 197-237 In (D. W. Janz and J. B. Nyberg, eds.) Deer and elk habitats in coastal forests of southern British Columbia. British Columbia Min. of For., Special Rep. Ser. 5. Victoria.
November 2013 28 SITE C CLEAN ENERGY PROJECT Panel Hearing Submission November 25, 2013
Effects of the Proposed Site C Clean Energy Project on Harvesting, Cultural Use, and Intangible Heritage Resources of the Treaty 8 First Nations
Submitted by:
Craig Candler (PhD, Cultural Anthropology) and Alistair MacDonald (MA, Geography)
On Behalf of:
Four Participating Treaty 8 First Nations Doig River First Nation Halfway River First Nation Prophet River First Nation West Moberly First Nations
Suite 201 – 560 Johnson Street Victoria, BC V8W 3C6 Telephone: (250) 590-9017 [email protected] [email protected]
© 2013 Treaty 8 Tribal Association
Table of Contents 1 INTRODUCTION ...... 4 1.1 Role of Firelight Group Research Cooperative ...... 4 1.2 Overview of Submission ...... 5 2 CURRENT USE OF LANDS AND RESOURCES FOR TRADITIONAL HARVESTING and CULTURAL PURPOSES ...... 8 2.1 Review of EIS Guidelines ...... 8 2.2 Review of Amended EIS ...... 9 3 INTANGIBLE HERITAGE RESOURCES AND RELATED EFFECTS ...... 19 3.1 EIS Guidelines (EISG) ...... 19 3.2 Review of the EIS: Information Base ...... 20 3.3 Review of the EIS: Analysis ...... 25 4 SIGNIFICANT RESIDUAL ADVERSE ENVIRONMENTAL EFFECTS RELATED TO CURRENT USE OF LANDS AND RESOURCES FOR TRADITIONAL HARVESTING, CULTURAL PURPOSES, AND INTANGIBLE HERITAGE RESOURCES ...... 36 4.1 Advice Concerning Evaluation of Significance ...... 36 4.2 Key Concerns Regarding the Proponent’s Findings ...... 37 4.3 Significant Residual Adverse Environmental Effects Related to Traditional Harvesting, Cultural Use and Intangible Heritage Resources ...... 38 Appendix A: Professional Profiles ...... 41 Appendix B: Additional Work Needed to Confirm or Disprove BC Hydro Assumptions . 55 Appendix C: Recommended Approach to a Technically Sound Assessment and Threshold of Significance ...... 57
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1 INTRODUCTION
1.1 Role of Firelight Group Research Cooperative The Firelight Group (Firelight) is a research cooperative with offices in Victoria, Vancouver and Edmonton. Firelight specializes in evidence-based and community- based social science research and technical support in western Canada and beyond. This submission was prepared by Dr. Craig Candler (PhD, Cultural Anthropology) and Alistair MacDonald (MA, Geography) of the Firelight Group. CVs for Dr. Candler and Mr. MacDonald are provided in Appendix A to this document.
Dr. Candler and Mr. MacDonald were retained by the T8TA to support technical review of the Site C EIS and subsequent amendments on behalf of the four above-noted Treaty 8 First Nations (T8FNs), focusing on current use of lands and resources for traditional purposes, effects on tangible and intangible cultural resources, Treaty 8 rights, and social and economic adverse effects and benefits. Dr. Candler and Mr. MacDonald were also lead researchers and primary authors involved in the collection and reporting of baseline data and initial potential impact pathway identification with the four T8FNs.
Dr. Craig Candler holds a Doctor of Philosophy in Anthropology from the University of British Columbia (completed in 2008). He has taught at the University of Alberta and the University of British Columbia and has more than 15 years of experience working in the field of community-based research, cultural impact assessment and traditional use and traditional knowledge studies with First Nations. Since the mid-1990’s, Dr. Candler has supported dozens of community based research, environmental assessment, and reconciliation processes for the Treaty 8 Tribal Association of BC, First Nations across BC and Alberta, large and small private sector clients, and crown corporations, including BC Hydro. Dr. Candler is a professional member of the American Anthropological Association (AAA), and the Society for Applied Anthropology (SfAA).
Mr. MacDonald’s disciplinary focus is on identifying and managing against potential impacts on social, economic and cultural resources and values. Alistair has worked in the NWT managing assessments for the Mackenzie Valley Review Board, was the primary writer of that Board’s 2007 Socio-economic Impact Assessment Guidelines, and has presented and written extensively on a variety of socio-economic and cultural impact assessment topics. Currently, Mr. MacDonald’s work is focused on socio- economic and cultural impact assessment and regulatory support, primarily with Aboriginal communities in BC, Alberta and the NWT.
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1.2 Overview of Submission In this submission, Dr. Candler and Mr. MacDonald summarize their review of the amended EIS and related evidence put forward by the Proponent and the T8FNs. Based on substantial information provided by the T8FNs, they provide advice regarding a technically sound finding of significant residual adverse environmental effects related to current use of lands and resources for traditional harvesting, cultural purposes, and intangible heritage resources.
Having reviewed relevant submissions related to socio-economic, cultural-heritage and Treaty rights impact assessment by the Proponent and other parties to the EA, including submissions by the T8FNs, our opinion is that the Proponent has inadequately predicted the likelihood of significant adverse effects from the Project, and the Project’s contribution to cumulative effects, in at least the following key areas: • Ability of T8FNs to meaningfully practice Treaty rights in preferred and culturally familiar locations, and according to preferred means, including: o hunting of moose, deer, elk, caribou, and other ungulates who rely on unique winter range and calving areas within the inundation area, and who, based on Dane-zaa traditional knowledge, are likely to be impacted well beyond the inundation area; o collection of medicinal and food plants including species dependent on the Peace River valley’s unique ecosystem that are rare or hard to find in harvestable quantities elsewhere in the territories of the T8FNs; o fishing of species that are rare or hard to find elsewhere in the territories of the T8FNs; and • Ability of T8FNs to meaningfully practice those rights incidental to their Treaty rights, including use and enjoyment of ancestral village and camp areas, ability of the T8FNs to protect, promote and pass on culture and cultural practices dependent on the Peace River valley, including intergenerational transmission of knowledge and Dane-zaa language, inter-community cohesion and gatherings, and unique place-specific and more general oral histories in the Peace River valley and other affected areas.
The Proponent has not properly assessed Project or cumulative effects on these intertwined components, which were included in the key social, economic and cultural
November 2013 5 © 2013 Treaty 8 Tribal Association valued components identified by T8FNs in their 2012 submissions to BC Hydro (the T8FNs Community Assessment1 and Initial Impact Pathway Identification (IIPI) Report2).
Our review supports Joint Review Panel findings that:
1. the Proponent’s estimations of significant residual adverse effects on current use of lands and resources for traditional purposes by the T8FNs is deficient in terms of information and/or analysis and underestimates likely effects, especially on hunting, fishing, plant gathering, transmission of knowledge, and related rights- based practices. BC Hydro’s assessment of effects on current use of lands and resources for traditional purposes by the T8FNs cannot be considered reliable unless BC Hydro conducts substantial additional studies necessary to provide confidence in key claims made by BC Hydro in their assessment. Further work would need to be conducted by the Proponent and the T8FNs to credibly test the assertions of the Proponent respecting the potential for the Project to cause or contribute to significant residual adverse effects on harvesting and associated Treaty 8 rights; and, 2. the T8FNs have provided substantial evidence that supports a finding of significant residual adverse effects from the Project on current use of lands and resources for traditional purposes including hunting, fishing, plant gathering, and ancillary rights-based practices including access and use of preferred gathering places, habitation areas, cultural teaching areas, and cultural/spiritual areas. The Proponent has provided no convincing counter-evidence to support a contrary interpretation of Project effects. Considering T8FNs evidence, absent convincing counter-evidence, and consistent with a precautionary principle, the Project is likely to cause and/or contribute to significant residual adverse effects on current use of lands and resources for fishing, hunting, plant gathering, and cultural activities, and by extension, significant impact on the meaningful practice by the T8FNs of their Treaty rights,; and, 3. the T8FNs have also provided substantial evidence to support an understanding that existing cumulative effects on current use of lands and resources in the upper Peace River region due to existing dams, privatization of lands, agriculture, oil and gas exploration and development, forestry, mining, and other impacts, are
1 Treaty 8 First Nations (T8FNs) Community Assessment Team. 2012. Telling a Story of Change the Dane-zaa Way. (Site C EIS, Volume 3, Appendix b7). 2 Treaty 8 First Nations (T8FNs) Community Assessment Team. 2012. Initial Impact Pathway Identification Report (Site C EIS, Volume 3, Appendix b7).
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already significant, and are already resulting in important adverse impacts to the ability of the T8FNs to practice their Treaty rights, including subsistence rights and incidental rights; and, 4. Considering the constitutional nature of Treaty 8 rights, the context of existing impacts to those rights that T8FNs do already, and continue to experience, and the lack of any clear plan for the protection of resources or areas, such as the Peace River valley, that are integral to the current and future practice of Treaty 8 rights in preferred areas and according to preferred means, the significant effects that inundation of the remaining intact portions of the Peace River valley west of Fort St. John would contribute to current use of lands and resources by the T8FNs in the Peace River region are likely not justifiable and not in the public interest.
The focus of this submission is on significant residual adverse effects related to current use of lands and resources for traditional purposes (harvesting and culture) as these are some of the most critical of immediate likely effects on the T8FNs. However, we also strongly encourage the Panel to consider evidence put forward by the T8FNs related to the likely effects on the T8FNs’ society, economy and population health alongside these specific considerations. There is strong evidence, from T8FNs’ experience and that of many other Aboriginal groups, that reduced cultural practices and ability to meaningfully practice Treaty rights and Aboriginal rights in general can, and in many cases does, lead to cascading significant adverse impacts at the societal, culture group, family and individual level. We note that the Proponent did not include the consideration of these cascading effects on Aboriginal well-being in a meaningful way in its EIS, despite evidence of reliance on the land by the T8FNs for socio-cultural well- being, and evidence of high vulnerability of the T8FNs to further social and cultural loss put forward in Section 7.1 of the Community Assessment.
The Panel’s decision on the acceptability of the significant residual adverse effects of the Project should be made with higher regard for that which may be gained and lost than the Proponent has exhibited in its submissions to date.
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2 CURRENT USE OF LANDS AND RESOURCES FOR TRADITIONAL HARVESTING AND CULTURAL PURPOSES
2.1 Review of EIS Guidelines The EIS Guidelines required the Proponent to provide the following in relation to current use of lands and resources for traditional harvesting and cultural purposes: 2.2 The Joint Review Panel must include in its assessment of the Project, consideration of the following factors…the capacity of renewable resources that are likely to be significantly affected by the Project to meet the needs of the present and those of the future”…
15. In describing current uses of land and resources by Aboriginal groups for traditional purposes, the Proponent should include activities related, but not limited, to hunting, fishing, trapping, cultural and other traditional uses of the land (e.g. collection of medicinal plants, use of sacred sites)….
15.2.3 Current Use of Lands and Resources for Traditional Purposes Baseline: The EIS will describe the current use of lands and resources for traditional purposes by Aboriginal groups within the Proponent’s proposed LAA and RAA using the following key indicators: • a) Current use of lands and resources for hunting, fishing and trapping activities, including the location of the activity, the species targeted, and the traditional uses of the harvested animals; and • b) Current use of lands and resources for activities other than hunting, fishing and trapping by Aboriginal groups, including the nature, location and traditional use purpose.
15.2.4: The potential to adversely affect current use of lands and resources by Aboriginal persons for traditional purposes will be assessed by taking into account the potential for the Project to result in changes to key aspects: • Use of and access to land used for traditional purposes; • Availability of harvested species based on the results of the assessment of the potential effects of the Project on fish and fish habitat, vegetation and ecological communities, and wildlife resources; and • Other relevant considerations raised by Aboriginal groups.
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20: Asserted or Established Aboriginal Rights and Treaty Rights, Aboriginal Interests and Information Requirements: The EIS will contain an assessment of the potential adverse impacts of the Project the exercise of asserted or established Aboriginal rights and Treaty rights. • How the environment is valued by each potentially affected Aboriginal group for current use of lands and resources for traditional purposes, including activities conducted in the exercise of asserted or established Aboriginal rights and Treaty rights, and how that current use may be affected by the Project to the extent that this information does not duplicate the information provided pursuant to Section 15 of the EIS Guidelines; and • The asserted or established Aboriginal rights and Treaty rights held by each potentially affected Aboriginal group.
2.2 Review of Amended EIS
2.2.1 Proponent Information Base for the Amended EIS The information base relied upon by the Proponent to predict the likelihood of effects of the Project on T8FN’s current use of lands and resources is almost entirely that filed by the T8FNs themselves, largely through the 2011 TLUS and the 2012 Community Assessment Baseline Profile reports. Findings of those studies as they relate to current use of lands and resources for traditional purposes by theT8FNs included the following:
• Based on T8FNs knowledge, the remaining unflooded portion of the Peace River valley between Hudson’s Hope and Fort St. John is known to be an exceptionally important ecological corridor of critical importance to animals on the north and south side of the river. Deer, elk, moose, caribou, many species of birds, many species of fish (some of which cannot be encountered in reservoir environments), carnivores, and furbearers all use the area. The Peace River valley is culturally and ecologically unique within the territories of the T8FNs and includes medicinal and other plants that are rare or hard to find elsewhere in the region (TLUS; Community Assessment; pg. xviii).
• The role of the Peace River valley for Treaty rights practices is not a distant memory. It is a day-to-day, year-to-year reality. As noted in the TLUS and in the Community Assessment, a number of Dane-zaa families continue to use the Peace River valley as their “grocery store”, especially for game, but also fish and food plants. The Peace River valley is a preferred area for fishing, hunting and
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food and medicine plant gathering, as well as cultural practice, for a number of reasons including: o remaining accessibility; o deep cultural attachment; o proximity to areas where many T8FN members live (on and off reserve); o abundant wildlife and natural resources, and o unique ecological values in the area.
• In a 2009 survey3 of Treaty 8 First Nations members, the Peace River valley was reported as being important for fishing, hunting game, and gatherings by over 80% of respondents; and trapping and harvesting and gathering berries, medicines, and wild herbs by 70% of respondents.
• The 2011 TLUS included a sample of approximately 11% of T8FNs’ population and identified extensive use, occupancy and other values in the LSA for the Site C Project. Of 796 values mapped within 5 km of the proposed inundation zone and associated proposed Site C Project components, 46% were located within the flood zone and footprint proposed by BC Hydro. Reported values that would be inundated if the Project proceeds, including: o 74 reported environmental features, including habitat areas, movement corridors and river crossing areas for ungulates and large carnivores including grizzly bear, winter fish habitat and spawning areas, bear dens, and moose and ungulate calving areas and winter browse; o 77 reported habitation values, including temporary and permanent or regularly used camping areas and gathering places including locations that have been regularly used for generations, and are used today; o 145 reported subsistence values, including a large number of fish harvesting sites including for bull trout, dolly varden, rainbow trout, grayling, whitefish, and other species, as well as preferred harvesting areas for berries, plant food and wood materials, preferred drinking water sources, and kill sites for moose, deer, black bear, and furbearers; o 30 reported transportation values, including portions of trails, horse crossings, raft or boat crossings, and water routes by canoe and motorboat along the Peace River and adjacent tributaries.
3 First Light Initiatives (2009), as reported in theT8FNs Community Assesssment: pg. xix and Section 6.1.
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• The most important locations identified included, in declining order of number of values – Bear Flats, Attachie/Halfway River confluence, Moberly River confluence, Lynx Creek confluence, and the Farrell Creek confluence, each of which would be heavily altered should the Project proceed.
2.2.2 Information Base Deficiencies Related to Current Use of Lands and Resources for Traditional Harvesting T8FNs identified a variety of gaps in the information base the Proponent used as the foundation for its analysis of potential Project-specific and cumulative effects on current use of lands and resources by Aboriginal peoples. These included: • The Proponent does not provide adequate data on the prevalence of harvested species within the affected area, now or trends over time4. • No adequate follow-up studies on First Nations fish harvesting, locational preference, species preference, or risk perception.5 • Public safety issues for harvesters received little focus, including effects of additional harvesters on the land and reservoir, road-based hunting, increased fog and, overall, the feeling of safety and security on the land for traditional users. • No follow-up studies on culturally important plants that are rare or hard to find, despite indication from the T8FNs that these are a key concern. • No follow-up on territory mapping fieldwork to extend the depth of TLUS/TK inputs. • Inadequate quantification of the cumulative effects of previous BC Hydro projects on the same river system.
The T8FNs sought for the Proponent to fill each of these identified gaps to improve the knowledge base upon which the effects characterization and significance estimation phase would be conducted. In each instance BC Hydro declined or ignored the request.
4 The Panel has recognized this, posing Information Request #43: EIS does not estimate population numbers for ungulate species in the LSA and RSA. Please provide this information. While the Proponent provided estimates of ungulates in the LSA and RSA, the data is for a limited time period and lacks temporal depth with which to understand trends over time in these wildlife population numbers. 5 As noted in T8FNs’ comment ab_0001-669 in its submission of April 12, 2013, BC Hydro effectively ignores perceived risk associated with harvesting, especially of fish, in its impact assessment, with no studies of “likelihood to fish” conducted on First Nations, despite the long lead time associated with the Project.
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In order to provide confidence in, or disprove BC Hydro’s assertions, Appendix B of this submission contains an initial list of additional work that should be required.
2.2.3 Proponent’s Analysis and Conclusions in the Amended EIS Unfortunately, the Proponent, while filing the T8FNs evidence, has not adequately considered it in subsequent effects characterization and significance estimation processes. At p. 40-5 of the EIS, the Proponent estimates the Project has the “potential” to cause some significant residual adverse effects on the following ecological VCs: • Fish and Fish Habitat, including potential loss of three distinct sub-groups of species, the migratory Arctic grayling in the Moberly River, the migratory bull trout that spawn in the Halfway River and mountain whitefish that rely on Peace River habitat. • Vegetation and Ecological Communities • Wildlife Resources Regardless of these findings related to the sufficiency of resources the T8FNs rely upon, and the fact that the Proponent also finds there will be a residual adverse effect on Aboriginal fishing, hunting and trapping, and “other cultural and traditional uses” (including plant gathering), the Proponent nonetheless does not consider these impacts to translate into significant impacts on meaningful practice of Treaty rights or current use of lands and resources for traditional harvesting purposes such as hunting, fishing or wild plant collection. Rationales for these findings of not significant include the following:
• Fishing – “Although some aspects of the traditional purpose of the activity may be altered by transferring them to another location, fishing practices of Aboriginal people are adaptable, spatially and temporally”. • Hunting and Trapping – “…the traditional purposes of the activity would not be undermined”.6
2.2.4 Deficiencies in the Proponent’s Analysis and Conclusions Related to Current Use of Lands and Resources for Traditional Harvesting Given the strong evidence that the Project will result in significant residual effects on harvesting, BC Hydro has not provided convincing counter-evidence to support its
6 BC Hydro. 2013. Site C Clean Energy Project EIS, Volume 19, p.19-105.
November 2013 12 © 2013 Treaty 8 Tribal Association estimation that the Project is unlikely to cause Project-specific (or contribute to cumulative) significant residual adverse effects on current use of lands and resources for traditional purposes. In addition, based on available information, the Proponent’s proposed mitigations to reduce or avoid impacts are considered likely to be ineffective and inadequate. Among the main deficiencies in the Proponent’s analysis and conclusions are:
1. Lack of use of a “sufficiency of resources” approach to the assessment As expressed in the IIPI Report (pp 26-7), to understand T8FNs issues related to meaningful practice of Treaty 8 rights it is important to understand the minimum requirements or thresholds for Treaty rights practice to occur. At minimum, Treaty rights are understood to include, but are not limited to, hunting, fishing, trapping and gathering for sustenance and livelihood purposes. The full practice of these rights reasonably includes, and is not limited to, access to sufficient lands and resources in which the rights can be exercised. “Sufficient” refers not only to quantity but quality, and is evaluated from the perspective of what is required to fulfill not only subsistence requirements, but also cultural needs, of the First Nation now and into the future.
Determining what is “sufficient” encompasses a suite of interconnected tangible and intangible resources that underlie the meaningful practice of rights. From the T8FNs perspective, these resources include, but are not limited to:
1. Routes of access and transportation; 2. Water quality and quantity (clean and plentiful from natural sources); 3. Healthy populations of fish and game in preferred harvesting areas; 4. Abundant berry crops in preferred harvesting areas; 5. Adequate quantity and quality of traditional medicines in preferred harvesting areas; 6. The experience of remoteness and solitude on the land; 7. Feelings of safety and security; and 8. Reasonable access to lands and resources (accessible within constraints of time and cost). Using a sufficiency of resources approach such as that put forward by the T8FNs in the IIPI Report would have allowed for a far more effective characterization of likely effects. In our opinion, on the face of the evidence available, and absent persuasive counter- evidence, the Site C Project, alone and in combination with other cumulative effects
November 2013 13 © 2013 Treaty 8 Tribal Association causing agents, would result in erosion (measurable and perceivable) of the ability of T8FNs members and groups to meaningfully practice their Treaty rights of fishing, hunting, trapping, plant gathering.
A proper characterization of the Project-specific and cumulative effects on Treaty 8 rights would focus on reiterating the nested "sufficiency" of resources within the Peace River valley that will be impacted, and consider reduction in access to these resources elsewhere within Treaty 8 territory (see Deficiency #3 below).
2. Lack of consideration of effects pathways identified by the T8FNs The T8FNs submitted a list of 105 impact pathways for follow-up consultation and dialogue (the IIPI Report). Despite this, BC Hydro appears to have not meaningfully considered that material. Impact pathways relevant to current use of lands and resources for traditional harvesting purposes include but are not limited to the following:
1. Changes in access to critical harvesting zones and cultural sites (less access for T8FNs or increased outsider access eroding the values associated with the areas); 2. Reduced high value habitat and harvesting area available/accessible – e.g., elimination of critical warm lowlands and island refuges for ungulates; 3. Reduction or changes in wildlife, plants and fish available for harvesting; 4. Increased non-Aboriginal competition for harvesting resources at the same time as a reduced land base for practice of Treaty rights; increased access through a variety of means – e.g., roads, waterways, transmission line clearing; 5. Habitat alterations changing fish habitat and affecting traditional harvesters; 6. Elimination of habitat for traditional and medicinal rare plant communities; and 7. Reduced biomass for preferred species for T8FNs consumption – e.g., Arctic grayling, moose. These impact pathways may work in combination to affect the sufficiency of resources available for meaningful Treaty rights practices. As an example, consider the instance of multiple changes affecting fishing. Some species are expected to grow in numbers. Some species, including preferred species such as Arctic grayling, are expected to reduce dramatically in number and be “lost” from certain harvesting locations altogether. T8FNs would be left with a larger body of water producing about the same number of fish, except kokanee, which is not a preferred species. The reduced density of preferred fish species would likely reduce harvesting success for these species per unit of effort.
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This adverse effect on traditional harvesters would likely be compounded by increases in the number of non-Aboriginal harvesters using this recreational area, competing for the same resources.
3. No evidence to support BC Hydro’s “go elsewhere” argument and, indeed, cumulative effects evidence directly contrary In its argument in support of a finding of insignificance related to current use of lands and resources for traditional harvesting activities, BC Hydro suggested that: “practices of Aboriginal people are adaptable, spatially and temporally” (EIS, p. 19-015). It also suggested that non-Aboriginal “anglers and hunters can adapt their hunting and fishing locations to unaffected and accessible areas, and to places away from large construction zones” (EIS, p.24-53). Upon strong questioning by T8FNs, the Proponent continued to suggest that First Nations can “go elsewhere” to practice their rights (this is identified in BC Hydro Memo #5 and response to T8FNs information request ab_0001- 562), even with additional hunting pressures from non-Aboriginal harvesters who are also forced to move their practices out of the area affected by Site C.
The "go elsewhere" argument put forward by BC Hydro for meaningful practice of Treaty rights is extremely problematic, given cumulative effect loads of landscape alteration, fragmentation, real and perceived contamination concerns on much of the lands and waters, increasing non-Aboriginal harvesting competition, and other existing effects on large portions of T8FNs' traditional territory.
The T8FNs provided a variety of evidence of increased loss over the past three decades, especially but not limited to Section 4 of the 2012 Community Assessment, which BC Hydro largely ignored in its EIS. A review of even secondary data (including that filed by the T8FNs in Section 4 of the Community Assessment) would have seen the Proponent consider the following facts and perspectives relevant to its critical “go elsewhere” argument.
Much of the T8FNs traditional territory has been damaged by industrial, agricultural and urban development over the past century. These effects have increased in pace and intensity over time, and are right now among their highest levels in history, due in large part to oil and gas, forestry and mining activities. There is no reason to expect the damage to and alienation of T8FNs from large portions of their territory to reduce any
November 2013 15 © 2013 Treaty 8 Tribal Association time soon, with gas development, mining and other industrial activities likely to continue to grow in intensity.
Existing effects of major industrial/agricultural uses of the land in the Peace Region of British Columbia have been reported by Lee and Hanneman (2012)7. Their findings are that a 56,118 km2 study area effectively centred around the proposed Site C Project, hosts 16,267 oil and gas wellsites, 8517 petroleum and natural gas facilities, 9781 km2 of active oil and gas tenures, 5097 km2 of existing and planned logging cutblocks, and 45,293 km of roads. They estimate that some 66.9% of the area has been industrially- changed to date when buffered by 500 metres.
BC Hydro has already built two dams and multiple ancillary facilities in T8FNs territories since the 1960s. Legacy effects of the previous dams, which create an important but highly partial aspect of the cumulative effects context into which the current Site C is proposed, include: o Displacement of T8FNs from preferred harvesting, fishing and gathering sites and attendant infringement of Treaty 8 rights; o Creation of a huge reservoir system cutting wildlife off from their migration pathways and changing the distribution of, and access to, key wildlife species; o Increased mortality and morbidity among key wildlife species; o Changing fish population and species characteristics from a riverine to a reservoir “ecosystem”; o Increased contamination in fish species (esp. methylmercury), reducing the faith in country foods by T8FNs in this portion of their traditional territory o Opening up new areas to non-Aboriginal harvesting competition; and o Ecosystem changes resulting from a transition from a natural to a regulated river system.
The impacts on T8FNs of these activities have long been known and chronicled8. BC Hydro, nonetheless, appears to have spent little time or effort identifying the level of pre- existing land alienation for T8FNs in their home territories in the development of its EIS. This despite the fact that virtually all of Section 4, Sections 5.1.4, 5.2.4, 5.3.4, 5.4.4 and
7 Lee, P and M. Hanneman (2012). Atlas of Land Cover, Industrial Land Uses and Industrial-caused Land Changes in the Peace Region of British Columbia. Global Forest Watch and the David Suzuki Foundation; accessed at http://www.davidsuzuki.org/publications/downloads/2012/Peace_region_20120812_HR-optimized.pdf. 8 See, for example, pg. 17 of the T8FNs TLUS, and the entire Section 4 of the Community Assessment.
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Section 6.1 of the Community Assessment Baseline Profile were dedicated by the T8FNs to identification of factors negatively influencing T8FNs’ ability to “go elsewhere”, Impact Pathways #35 to 37 in the IIPI Report, and multiple concerns raised in the EIS review period (e.g., information requests ab_0001-562, 564, 715, and 717) were raised by the T8FNs on this issue.
The T8FNs reported similar concerns in the Community Assessment. In Doig River, thousands of oil and gas wells, and large swaths of land privatization have severely constrained access to land. In Halfway River, forestry, oil and gas and large numbers of non-Aboriginal harvesters impact the exercise of their rights. In Prophet River, oil and gas, forestry, hydro-electric and farming activities were all noted as diminishing members’ ability to hunt and fish for subsistence. In West Moberly, oil and gas, mining, forestry, hydroelectric, and increased non-Aboriginal population have all caused reduced sufficiency of the collective resources required to meaningfully practice Treaty 8 rights. These are the areas into which BC Hydro would have the T8FN’s “spatially adapt” activities currently preferentially conducted in the Peace River valley.
Given these pre-existing cumulative adverse impacts, the remaining relatively undamaged portions of the Peace River valley are essential to the maintenance of some semblance of a natural ecosystem and population health among many wildlife species. The cumulative effect with the Project will be much accelerated and is considered of much higher significance than a future without the Project.
The Proponent, despite concerns raised by the “go elsewhere” concept, and with the lack of evidence to support the assertion (and indeed contrary evidence filed by the T8FNs and other First Nations), has failed to address these concerns with reasonable evidence. What the Proponent has provided is a list of other places where T8FNs do practice some of their rights. The T8FNs have already responded to the deficiencies of this material in our information requests. No funding was provided by BC Hydro to T8FNs or any other First Nations to conduct land alienation studies to establish the degree to which the “go elsewhere” option is a viable alternative for the T8FNs. BC Hydro never characterizes cumulative effects on other areas to indicate where First Nations can go to meaningfully practice their Treaty rights.
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4. No involvement of culture holders themselves in effects characterization and significance estimation
Pg. 32 of the IIPI Report stated: In combination, [existing T8FNs submissions] provide a robust examination of pre-existing conditions and trends in the lived experience of the four T8FNs, and identify a wide variety of beneficial and adverse impacts the Site C Project may cause or contribute to on the rights and interests of the T8FNs, should it proceed. Steps further down the impact assessment process will likely include the parties engaging in dialogue toward further characterization of the potential effects identified herein.
The expected dialogue and consultation never ensued. As a result, BC Hydro’s effects characterization and significance estimations lack cultural context or confirmation.
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3 INTANGIBLE HERITAGE RESOURCES AND RELATED EFFECTS
3.1 EIS Guidelines (EISG)
The EISG required the Proponent to provide the following in relation to Aboriginal culture or intangible resources:
18. Heritage Resources Effects Assessment The EIS will summarize the potential adverse effects of the Project on heritage resources, including physical and cultural heritage resources, and any structure, site or thing that is of historical, archaeological, paleontological or architectural significance. Technical data for physical and cultural heritage resources will inform the effects assessment on the heritage resources VC. The interests of Aboriginal group, including intangible heritage resources, will be presented in the EIS in accordance with Section 20 of these EIS Guidelines. Where Aboriginal groups have identified interests in a VC, the Proponent will incorporate additional baseline information as made available.
In addition to the recognition of physical and intangible heritage resources9, the EISG included a section where other elements of culture required consideration:
20.6 Other Interests of Aboriginal Groups The EIS will: • Identify interests that Aboriginal groups may have with respect to potential social, economic, health, and physical and cultural heritage effects of the Project; and • Describe how the potential effects on those interests have been considered in the assessment of the potential adverse effects of the Project on VCs or otherwise.
9 As indicated by the T8FNs through IRs (see T8FNs May 31, 2013 Specific Comment on BC Hydro’s response to ab_0001-626), an internationally standard definition of intangible heritage resources is provided by UNESCO.
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The EIS Guidelines’ definition of culture goes beyond one defined largely or exclusively by physical heritage resources. It is well established in environmental assessment that cultural impacts may be felt at both the tangible and intangible levels. In this instance, it is evident from the information collected from T8FNs members that the critical portion of the T8FNs’ cultural landscape that is the Peace River valley has both tangible and intangible values to the T8FNs that should be considered by the Panel in making its determinations. Practice of cultural activities and access to cultural resources in the Peace River valley is of the utmost importance to the well-being and quality of life of T8FNs individuals, communities and Nations.
3.2 Review of the EIS: Information Base The information base relied upon by the Proponent to predict the likelihood of significant residual adverse effects of the Project on T8FN’s current use of lands and resources for traditional activities, specifically in relation to culture, was again almost entirely that filed by the T8FNs themselves, largely in the form of the 2011 TLUS and the 2012 Community Assessment Baseline Profile reports.
3.2.1 The role of land in T8FNs’ culture For the T8FNs, culture, the land, and natural resources and their harvesting are effectively inseparable (see Section 3 of the T8FNs Community Assessment Baseline Profile). The importance of the land to the practice of culture for T8FNs and their members simply cannot be overstated. Land and knowledge of it in its current state are among the primary forms of education and communication, control and spirituality for Dane-zaa people. There is no way to protect culture without the land being protected as well.10
Education comes in two ways for Dane-zaa – through stories told by elders to youth (which may only be told in specific places on the land, which hold the meaning and context for the story and bind generations together with “locational guideposts” imbued on the land), and through observation and practice of skills associated with harvesting.
10 Treaty 8 First Nations (T8FNs) Community Assessment Team. 2012. Telling a Story of Change the Dane-zaa Way. (Site C EIS, Volume 3, Appendix b7), p. 29.
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Both forms of learning can be damaged through effects on the cultural landscape; on the available land base and sufficient resources for harvesting and through the destruction of places on the land associated with particular stories. As noted in the Community Assessment Baseline Profile (p. 35), “Dane-zaa youth do not traditionally learn in a classroom. They learn on the land”.
Access to land, known and preferred land, and knowledge of that land, are the two most important tools for survival. Each is also critical to T8FNs physical needs (through harvesting) and cultural sustenance and continuity.
The ability to gather on the land with other First Nations was (and remains) a central aspect of well-being and quality of life for the T8FNs. Communal relations have been reinforced and family ties extended through summer gatherings for hundreds of years. Many of these gatherings traditionally occurred in the Peace River valley.
3.2.2 T8FNs cultural values in the Peace River valley As already shown in Section 2 of this submission, the Peace River valley plays a key role in the harvesting and Treaty 8 rights practices of the T8FNs. The same can be said for cultural practices and the T8FNs cultural landscape.
Cultural landscapes are anchors for wider intangible cultural heritage and are typically broad areas that are reflective of Aboriginal culture and valued in their current state11 as: • Landscapes that are lived in and used by culture holders for cultural activities (e.g., hunting, fishing, trapping, spending time on the land, teaching) • Viewscapes tied to a sense of local or regional identity or historical importance • Physical characteristics of the landscape that together lend a sense of history, security, safety, or other cultural connections.
11 As indicated by the T8FNs through IRs, cultural landscapes are recognized and usefully defined by Parks Canada and other federal advice documents.
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Submissions by the T8FNs to BC Hydro emphasized the critical cultural landscape zone that is the Peace River valley, the retention of strong cultural attachment to it by T8FNs even in the face of change (e.g., agriculture) to date, and specific values of critical cultural sites and activities that occur in the Peace River valley. The T8FNs Community Assessment Baseline Profile and TLUS described the key role of the Peace River valley in T8FNs cultural practices:
This place embodies much that the Dane-zaa value. As written down in historic documents, countless oral histories, and the recent mapping of traditional land use and occupancy in the Peace River valley by members of the T8FNs… the Peace River valley and in particular the area between Hudson’s Hope and Taylor, is described by T8FNs members as a critical, essential and irreplaceable part of the T8FNs cultural landscape. “(Community Assessment, vii, emphasis added)
Critical T8FNs cultural areas identified within the LAA for the Site C Project include:12
1. Dreamer’s Rock near Hudson’s Hope, in the Peace River itself; 2. An important Dane-zaa gathering and occupancy site across from Hudson’s Hope; 3. Nodaa saaghae – Lynx Creek – a noted gathering and fishing place; 4. The numerous islands in the Peace River frequented by moose, elk and deer as “sacred refuges” from carnivores, especially during calving periods; 5. The Halfway River in general, one of the most important cultural sites in the Peace River valley; a main artery for area First Nations; 6. Attachie, at the confluence of the Halfway and Peace Rivers, an important historical, gathering and harvesting site, with strong fishing values; 7. Tluuge – Bear Flats, and juuzhe saaghae – Cache Creek, important gathering places with high intensity of use and burial sites in locations known and unknown. This area is a central hub for many trails that criss-cross the Peace River valley; and
12 See pg. vii to xi in the Community Assessment Baseline Profile and pp. 31-38 of the 2011 TLUS.
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8. Many different viewpoints into the valley (e.g., east of Bear Flats), culturally important areas for many members who value the beauty and serenity of the Peace River valley.
As expressed in the Preamble to the Community Assessment Baseline Profile (pgs. xii to xxii; all quotes from T8FNs members), the Peace River valley has the following multiple and critical cultural attributes for T8FNs members:
• It is a home, meaning a cultural home rather than a current physical one. When people are in the portion of the Peace River valley between Hudson’s Hope, they feel like they are at home – “this is our place; our corner of the world… if we don’t have our land, we don’t survive”. • It is a teaching place – “It is our home and our back yard… we use it for camping and fishing and training our children.” The Peace River valley has played an essential role in this passing down of cultural skills and values for Beaver, Cree and Sekani T8FNs members and their ancestors for countless generations and is still commonly used as a teaching area. A DRFN elder involved in the 2011 Site C TLUS (Candler et al. 2012) stated: “If we lose the land where we have our stories, our kids will never know”. • It is a gathering place, with many gathering places within it. The Peace River valley was and remains a primary gathering place for area First Nations. Its resilience as a preferred gathering place is remarkable given changes that have occurred to the landscape around it, is a symbol of the importance of this location. People would not gather in an area unless it retained value. While Bear Flats and Attachie are important as gathering places, their importance is linked to the greater importance of the Peace River valley as a connected and living cultural landscape. As noted in the Community Assessment Baseline Profile, in a 2009 survey13 over 75% of T8FNs respondents indicated that the Peace River valley is an important gathering place. People bring their children down and listen to and learn from elders and land users; people come from communities far and near to join the gatherings. As noted in the Community Assessment Baseline Profile: “It would be difficult to over-estimate the value of these summer gatherings for the social, economic and cultural well-being of the Dane-zaa” (xiii).
13 First Light Initiatives. 2009. Treaty 8 Tribal Association Membership Survey on Site C. Powerpoint Presentation of Results by Brenda Ireland to Treaty 8 Tribal Association, Fort St. John, BC: September 11, 2009.
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• It holds within it much of the history (oral and otherwise) of the T8FNs. Dreamers and chiefs frequented the area through their traditional rounds, are buried there in the valley, taught Beaver and Cree values, and had prophecies about the failure of dams, even before the first dam. • It is a sacred and spiritual area with many sacred and spiritual sites. Again, these sites cannot be treated in isolation; they are nothing without the context of their surroundings. A burial site is a place where a body is buried, but it is also a cultural, educational, family, transportation, oral history, and ecological touchstone. People were buried where they died, which was where they lived. The 2009 T8TA survey14 found that 54% of respondents felt a spiritual connection to the Peace River valley. • It is a place critical to T8FNs’ well-being and quality of life: As reported in the Community Assessment Baseline Profile, T8FNs members simply feel better when they travel to the Peace River. Its history, beauty, and solitude (especially in comparison to surrounding urban areas) is reported to bring members peace and tranquility that they cannot often get in their day-to-day world. As a result of the combination of these values, none of which can be separable from one another, the T8FNs report a substantially undiminished cultural connection to the would-be affected area of the Peace River valley.
3.2.3 Potential Cultural Effects Pathways Identified by the T8FNs Material filed by the T8FNs in the IIPI Report15 detailed some of the effects pathways and potential outcomes of the Project on protection and promotion of Aboriginal culture:
1. Loss of critical cultural gathering sites to flooding; 2. Noise and activity during construction, as well as increased activity on the proposed reservoir by non-Aboriginal recreational users and harvesters, reducing the ability of T8FNs members to quietly enjoy and take solace from the area; 3. Flooding of grave sites and other spiritually important places – considered a “desecration” by many members; 4. Loss of physical heritage – known and unfound, through literal erosion and inundation of a major portion of the T8FNs' cultural landscape;
14 First Light Initiatives. 2009. Treaty 8 Tribal Association Membership Survey on Site C. Powerpoint Presentation of Results by Brenda Ireland to Treaty 8 Tribal Association, Fort St. John, BC: September 11, 2009. 15 E.g., at pg. 22 of the IIPI Report and in Impact Pathways #18, 20, 21, 25, 26, 28, 49 and 71.
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5. Loss of sacred locations (e.g., islands) in the Peace River16; 6. Loss of oral history – flooding of vital landmarks will, in the oral culture of the Beaver and Cree, cut these locations off as sources of stories and place names/place markers for sharing knowledge with future generations; 7. Flooding contributing to an already reduced land base for cultural practices, with attendant effects including but not limited to reduced inter-generational knowledge transfer and cultural practices in the future; 8. Reduced cultural practices in the Peace River valley because of alienation due to increased non-Aboriginal recreational and harvesting activities; 9. Loss of visual quality of the beautiful Peace River valley through additional anthropogenic change, linked to loss of cultural and spiritual connection to the land and river, and quite possibly to adverepsycho-social effects; and 10. Reduced sharing of cultural knowledge due to reduced elder/youth interactions on the land. Overall, the T8FNs filed abundant evidence of concern, linked directly to specific aspects of the Project, that Site C has high potential to lead to the loss of a critical portion of the T8FNs cultural landscape for current and future generations to enjoy and pass on.
3.3 Review of the EIS: Analysis
3.3.1 The Proponent’s Analysis and Conclusions
The EIS considered “changes in cultural and traditional uses of the land” by Aboriginal groups as one of the three key aspects of its Current Use VC. The Proponent’s analysis of effects on culturally important places and valued landscapes is largely found in Section 19.4.6 of the EIS. The Proponent focused its analysis on cultural use areas with highest density of “use and purpose” along the Peace River, especially the high concentrations at stream confluences on the north shore, rather than “valued landscapes” at a larger scale.
16 T8FNs members noted that two of the islands down the middle of the Peace River are considered sacred to the Dane-zaa as well as being prime ungulate calving grounds. Their flooding would represent a cultural loss.
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Overall, the Amended EIS estimates the following significant adverse effect on “Current use of Lands and Resources for Traditional Purposes – Other Cultural and Traditional Uses” (EIS, pg. 19-105): The effect on other cultural and traditional uses would be significant for T8TA, SFN and BRFN at particular high value places along the Peace River in the LAA, most notably at Bear Flats, Farrell Creek and Attachie. These spaces, indicated to be of high value by Aboriginal groups, will be inundated and access to them permanently impaired.
BC Hydro suggests a continued belief that the values that will be significantly affected are site-specific and stationary, held (and lost) only at specific locations. They also note the following in response to the Panel’s IR #18: It is possible that, following inundation and the establishment of new access within the reservoir, that old patterns of Aboriginal use may be reconstituted at new confluences of the Halfway River (Attachie) and the Peace River and Cache Creek (Bear Flats) with the reservoir… However, the success of such an adaptation would require the return of conditions supporting both current use activities and conditions supporting broader cultural aims (teaching, ceremony, and other cultural uses”).
In its response to Panel IR #18, BC Hydro also identifies culturally important locations within the LAA for the Project that are further afield from the inundation zone that are more important for harvesting and perhaps less important from a cultural perspective – Monias, Boudreau and Boucher Lakes, labeling them “without the emphasis on cultural and/or spiritual uses coupled with oral historical traditions that are attached to highly valued places along the Peace River”.
Thus, BC Hydro seems to recognize that Peace River valley cultural landscapes in would-be inundated areas are of the highest cultural value, and that although adaptation to new locations may be possible, there is substantial uncertainty as to this outcome.
The potential for these significant residual adverse effects to impact upon meaningful practice of Treaty 8 rights is not considered by BC Hydro in Section 34 of the EIS. The only Treaty rights considered by BC Hydro are the right to hunt, trap and fish, despite a recognition that the First Nations “also assert that there are important cultural, spiritual, social and economic components to Treaty 8 rights, including the ability to transmit their
November 2013 26 © 2013 Treaty 8 Tribal Association distinct culture and traditional means of livelihood to future generations” (EIS, p. 34-6). Whether characterized as Treaty rights or incidental rights, the impact of the proposed project on these cultural, spiritual, social and economic rights were not adequately addressed by the Proponent.
In section 40.15 of the EIS, the Proponent suggests that although there will be significant residual adverse effects on four VCs (Fish and Fish Habitat, Vegetation and Ecological Communities, Wildlife Resources, and Current Use of Lands and Resources for Traditional Purposes [specifically “other cultural activities”]), those effects would be justified for reasons largely related to economic interests (secure supply of power, major construction project benefits, fuller use of water already stored upstream – p. 40-7). In relation to strong, consistent and remaining concerns raised by the T8FNs that these benefits do not outweigh the costs, the Proponent indicates only that “BC Hydro is continuing to consult with Aboriginal groups and to seek accommodations where appropriate” (EIS, p. 40-7).
3.3.2 Problems with the Proponent’s Analysis and Conclusions
The evidence supports BC Hydro’s finding that significant residual adverse effects on T8FNs’ culture are likely to occur as a result of the Project. However, the Proponent makes four tenuous assertions that do not stand up to critical examination: 1. BC Hydro suggests these effects are site-specific and stationary; 2. BC Hydro suggests these effects are limited to “other cultural activities” and not to heritage resources or intangible elements of culture; 3. BC Hydro suggests that there will not be a significant cumulative effect on culture (see Gap 1 below); and 4. BC Hydro suggests these effects are justified on the basis that economic benefits of the Project outweigh the cultural (and other) costs.
At root of the above problems are several issues with the Proponent’s analysis and conclusions.
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5. Lack of proper consideration of cumulative cultural impact context The T8FNs provided strong and detailed information about the fact that their culture has been subject to high levels of adverse effects from a variety of sources over the past two centuries (for examples, see Community Assessment Baseline Profile Sections 4 and 6.2). The evidence is clear – T8FNs’ Aboriginal culture has been subject to a combined “weight of recent history” that has adversely affected language, cultural practices, cultural knowledge, socio-cultural worldviews, relationships to lands and animals, and other critical elements of cultural survival. While the T8FNs have shown a strong desire and effort to combat and overcome these losses, progress is slow and for these land-based culture groups, every loss of a portion of their traditional territory adds to the cumulative effects on culture. Given the high level of anthropogenic disturbance across large areas of T8FNs territory, there is strong evidence to support a finding that cumulative loss of access to land, along with other anthropogenic forces on T8FNs culture, has already caused significant adverse effects on the T8FNs’ ability to protect and promote their culture.
BC Hydro nonetheless chooses to narrow its interpretation of what might constitute a cumulative effect down to “cultural uses of the land” and to the LAA for the Project. BC Hydro states, at pg. 19-109 of the EIS:
The [cumulative] projects and activities are generally well removed from the LAA and are unlikely to have any residual effect on the use for cultural and traditional purposes of the lands and resources that may be adversely affected by the Project. Consequently, the residual effects of the Project are unlikely to overlap with the effects of those projects and activities. Further, the adverse effect of the Project results from inundation of particular high value sites. Consequently, even if there were some overlap, the effects would not accumulate.
Some of the many flaws of this conclusion are:
• Use of the LAA is inappropriate for consideration of cumulative effects. Cumulative effects assessment should be conducted at the Regional Assessment Area (RAA) level and in this case at the RAA for consideration of social, economic and cultural impacts, including the territories of all First Nations groups that use and value the Project area.
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• BC Hydro incorrectly assumes that “cultural uses of the land” is the only valid “VC” for consideration of cultural effects from the Project, and thus ignores all other pressures on culture that have contributed to cumulative loss for T8FNs. • Cumulative effects assessment is most meaningful when it focuses on the status of the VC, rather than the contribution of the Project to some limited aspect of that VC. Aboriginal culture, even if impossibly narrowly defined as “cultural uses of the land”, is practiced by many people in many places in their traditional territory. BC Hydro has failed to consider, even when provided evidence of concern by the T8FNs and other First Nations, the degree to which “cultural uses of the land” are already impacted. Therefore, the Proponent is in no position to make conclusions on cumulative effects significance on this VC. • Finally, the Proponent suggests incorrectly that the only adverse effect of the Project on culture comes from inundation of particular high value sites and that as a result there is no potential for effects to accumulate. We have to assume that what BC Hydro means here is that these particular high value sites are completely destroyed and so cannot themselves be further damaged by any other activities. This is true. However, since the T8FNs take much more cultural value from the Peace River valley than simply activities at these “high value sites”, the Proponent’s assumption that there is no potential for accumulation of cultural effects is erroneous. It is damage to the people that practice the culture that BC Hydro neglects to consider cumulative effects on.
BC Hydro compounds its inadequate treatment of cumulative effects assessment by again using the “go elsewhere” argument. At pg. 14 of its Technical Memo on Cumulative Effects Assessment of May 8, 2013, the Proponent asserts that although “The Project is likely to result in a cumulative effect on current use of lands and resources for other cultural and traditional purposes”, that “the resulting cumulative effect of the Project would not be significant because the current use would not be permanently undermined and the practice can be readily reproduced elsewhere.”
As noted in T8FNs’ submission of May 31, 2013 (General Comment #35), this is an unsupported assertion by the Proponent that reflects a lack of understanding of information provided to BC Hydro by the T8FNs regarding the cultural importance of the valley, which is place-based rather than land-quantum based (i.e., they represent important and irreplaceable aspects of the T8FNs’ cultural landscape and sense of place and self). As such, they would be permanently undermined because of the loss of irreplaceable cultural area(s), and cannot easily be replicated “elsewhere”. This is especially true for gathering places, which have multiple values ingrained over time both in them and in the people that use them, and for more everyday activities like
November 2013 29 © 2013 Treaty 8 Tribal Association harvesting, which may already be highly constrained in the places BC Hydro “estimates” the T8FNs could go to harvest, fish, trap and gather.
6. The Proponent made minimal attempts to understand the affected area as a critical part of the T8FNs’ cultural landscape As noted above, the evidentiary base provided by the T8FNs indicates that the Peace River valley as a whole is a critical part of the T8FNs’ cultural landscape. Concerns about loss of a critical portion of their Aboriginal cultural landscape were raised early and often by the T8FNs in this environmental assessment. However, the T8FNs were also clear that the scope of data collection time and resources from BC Hydro did not allow for a detailed effects assessment linking the Project to the T8FNs’ cultural landscape:
Any contribution by the T8FNs Community Assessment Team to the characterization of the social, economic, ecological and cultural role of the Peace River valley for the Dane-zaa, even from these multiple sources, must be treated as a partial one. Deep examination of the role of this location in the cultural landscape for the T8FNs would require dedicated primary cultural impact assessment research beyond the scope of this Baseline Community Profile (Community Assessment, xii).
Nonetheless, BC Hydro made little or no effort to work with the T8FNs to further characterize the values and potential impacts on culture and the T8FNs cultural landscape, prior to issuing its EIS. No cultural landscape level assessment has been conducted by the Proponent, though the term “cultural landscape” is used on occasion without context by the Proponent in the EIS.
The Panel has picked up on some of these gaps in the cultural landscape level of assessment. In IR #18, the Panel requested BC Hydro to conduct an assessment of the loss of the river as a heritage landscape. However, the Proponent’s findings on the Peace River as a heritage landscape in its IR #18 response merely reiterated cultural values previously identified in section 19.4.6 of the EIS. The requested assessment of the loss of the river as a heritage landscape, including as an Aboriginal cultural landscape, was not conducted in response to IR #18. BC Hydro’s understanding of the T8FNs cultural landscape and its importance thus remains unknown.
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7. BC Hydro adopted an extremely narrow definition of “culture” that excluded meaningful consideration of intangible elements of Aboriginal culture The Proponent considered only the cultural impact on “specific sites” in the Peace River valley, rather than adopting a more appropriate definition of culture such as that identified by the T8FNs (well in advance of the EIS being finalized, for example in Section 6.2 of the Community Assessment Baseline Profile, which lists access to land as only one of five key indicators of protection and promotion of Aboriginal culture) where multiple tangible and intangible elements of culture are considered when examining the health of the VC overall. The Proponent then refused to consider elements of culture and effects pathways on these elements of culture that it unilaterally deemed “outside the scope of assessment”, without providing any justification for this position (a concern raised by T8FNs in General Comment #5 of May 31, 2013).
As a result, as noted in General Comment #32 in T8FNs’ submission of May 31, 2013: intangible cultural resources, despite some limited claims to the contrary by BC Hydro, are effectively ignored in the EIS. This is unfortunate, because intangible cultural resources are among the values most likely to be adversely impacted should the Project proceed, as illustrated by a variety of inputs from the T8FNs to date. Loss of sense of place, key historic and gathering places, learning sites, cultural history and transmission tools, and desecration of grave sites (see [T8FNs Comment ab_0001-628) are among the issues that have been raised to date by T8FNs, with little response, data collection or assessment of data collected by T8FNs, by the proponent. See [T8FNs Comments ab_0001- 181, 626, 628, 638, 650, and 721. Among the intangible or semi-tangible cultural effects ignored in large part include: • Impacts to areas/sites of high recreational, teaching, gathering, knowledge transmission, both through inundation and increased access to non-Aboriginal people, in different instances. • Irrevocable erosion/alteration of a known and highly valued cultural landscape for T8FNs that is the Peace River valley… • Spin-off effects on (especially mental) well-being and quality of life of these impacts on – indeed attacks on – intangible cultural resources (as well as tangible ones) are ignored by BC Hydro. This doesn’t make them any less real (see T8FNs Comment ab_0001-630).
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8. BC Hydro did not meaningfully consider the impact pathways put forward by the T8FNs, and did not include the T8FNs in effects characterization and significance determination There is no corroborating evidence from its written materials to support BC Hydro’s contention that it duly incorporated into its effects characterization and significance determination exercises any of the cultural effects pathways put forward by the T8FNs in the IIPI Report (see Section 3.2.3 of this hearing submission). In addition, despite the fact that impact significance is culturally defined and that involvement of the culture groups themselves is essential, and concerns raised in advance of the EIS submission on this topic by T8FNs,17 BC Hydro chose to exclude the T8FNs from the post-baseline steps of the impact assessment.
9. The Proponent’s “mitigation” for culture is insubstantial and unlikely to avoid, reduce or adequately compensate for likely effects on culture The proponent suggests specific mitigation to compensate for cultural loss in Section 19.4.7 of the EIS. This mitigation in no way will avoid or meaningfully reduce the high magnitude cultural effect of inundating these cultural sites, effectively forever. In addition, the commitments are weak and non-committal.18
The proponent also provides inadequate justification for why the proposed Project should proceed even with significant residual effects on culture likely to occur. There is
17 For example, in its December 21, 2012, response to a BC Hydro letter on methodology that identified that determination of significance would be based on “professional judgment, baseline information, results of consultation, and to a certain degree, results of the biological assessments”, T8FNs stated: “…criteria must be weighed from the standpoint of the First Nations. Only the First Nations, as traditional land users, are in a position to know the significance of the particular use in question to themselves as land and resource users… As the courts have made clear, the Aboriginal view of the nature and importance of the particular traditional use in question will, to a very large degree, determine the significance of impact on the use itself. An impact that might otherwise appear (to non-users or non-rights holders) to be relatively minor may, in fact, constitute a serious impact where the use (or right) in question has multiple cultural and practical facets: see West Moberly First Nations v. British Columbia, supra at paragraphs 62-63.”
18 See for example, pg. 56 of the Executive Summary to the EIS, which refers to BC Hydro “consider[ing] implementing... potential initiatives”. This type of slippery, voluntary, and future tense commitment language is of little value to regulators in determining the adequacy of mitigation measures, and is carried through in much of BC Hydro’s cultural mitigation measures.
November 2013 32 © 2013 Treaty 8 Tribal Association no use of any specific metrics or structured net gains analysis, and certainly no inputs from First Nations into such a rationale. Section 40.15 of the EIS lacks a compelling argument for why Treaty rights must be infringed and why the resources those Constitutionally-protected rights rely upon must be impacted.
10. The Proponent’s findings on visual resources do not reflect likely effects on the T8FNs and are not linked to cultural effects assessment
The T8FNs culture is strongly influenced by the sense of place its members associate with aspects of their traditional territory. For many T8FNs members, the visual landscape of the remaining, relatively undiminished Peace River valley is a critical and highly valued portion of this sense of place with strong cultural connections. Members report a sense of calm, beauty and peace enjoyed from locations where the Valley can be viewed (e.g., at p. xxi of the Community Assessment Baseline Profile).
Upon review of the initial EIS (section 27 focused on visual resources), T8FNs raised concerns with how BC Hydro dealt with its assessment of visual resources as completely separate from cultural considerations (e.g., T8FNs information requests ab_0001-579, 581 and 582). In response, Technical Memo # 6 reiterates BC Hydro’s estimation that there will be no significant cumulative effects on visual resources. This is contrary to qualitative evidence collected in the Community Assessment, where multiple T8FNs’ members identified strong concerns about changes to the visual aspects of this crucial cultural landscape. In addition, the assessment of said effects was entirely “in house” by the Proponent, which did not invite the culture holders themselves to weigh in on the magnitude and significance of the visual changes that would occur. Indeed, the Proponent admits in response to ab_0001-579 that it rejected proposed additional visual reference points for the visual effects assessment put forward by the T8FNs on October 28, 2012. Overall, the Proponent’s conclusions were based on Visual Quality Objectives that may not align with, and were not properly informed by, perspectives of Aboriginal culture holders who value the Peace River valley.
The Proponent’s finding that the “Project is unlikely to result in a significant adverse effect of Visual Resources” also remained unchanged after examining viewpoints from both land and water, as expressed in its submission of September 19, 2013 in response to Panel IR #13. This despite the visual representations clearly showing a shift from a riverine habitat to a reservoir one, with islands and recognizable existing landmarks,
November 2013 33 © 2013 Treaty 8 Tribal Association river confluence and gathering sites irrevocably altered19. However, for BC Hydro, “the changes are consistent within the context of the existing level of visual disturbance and therefore are considered an acceptable change to visual resources” (response to Panel IR #13, pg. 3 of 6). Evidence provided in the Community Assessment indicates that the T8FNs would respectfully but forcefully disagree.
BC Hydro also suggests in the EIS (19.4.6, p.19-84) and reiterates in its May 8, 2013, response to ab_0001-540 that it is “uncertain” how First Nations would “respond to the submergence of the areas believed, traditionally, to hold graves belonging to their ancestors”. T8FNs responded by stating on May 31, 2013 (p. 80) that: In written materials submitted and discussions at meetings with T8FNs and BC Hydro, members have made it abundantly clear to BC Hydro how they feel about potential flooding of graves and sacred areas. For BC Hydro to fail to hear or understand this, and to instead repeat this kind of inept statement is offensive and emblematic of an almost complete failure on the part of BC Hydro, despite substantial T8FN submissions, to grasp the issues of importance to the T8FNs, or to meaningfully consider T8FN input into understanding the significance of potential effects.
BC Hydro does note that “sense of place” disruption due to visual changes can occur:
While the importance of scenic quality is relative to the activity or experience pursued, viewers expectations are also tied to a “sense of place” or affinity for the landscape related to its characteristics and regional context. (IR#13 response)
Nonetheless, BC Hydro refuses to consider, in the EIS or any follow-up materials, the Aboriginal cultural context or “sense of place” that is likely to be affected by the Project, choosing instead to note only that “the regional landscape context includes two existing dams located less than 90km upstream of this site that are highly visible by boat and are considered attractors for tourism” (Panel IR#13 response). Finally, the Proponent suggests that a considerable amount of visible, anthropogenic disturbance already exists along the north slope of the Peace River, and that as a result “additional Project
19 As the Proponent notes at pg. 3 of 6 in its Panel IR#13 response: “…the Project introduces permanent visible features to the landscape based on the disturbances resulting from reservoir operations, including erosion, loss of river landscape and related vegetation removal”.
November 2013 34 © 2013 Treaty 8 Tribal Association related disturbance could be accommodated without changing the overall character of the visual landscape visible from the water” (Panel IR#13 response), and from the land (EIS Section 27).
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4 SIGNIFICANT RESIDUAL ADVERSE ENVIRONMENTAL EFFECTS RELATED TO CURRENT USE OF LANDS AND RESOURCES FOR TRADITIONAL HARVESTING, CULTURAL PURPOSES, AND INTANGIBLE HERITAGE RESOURCES
4.1 Advice Concerning Evaluation of Significance Residual effects are those effects likely to remain following full implementation of proposed mitigations. The T8FNs had neither the funding, nor the opportunity, to inform BC Hydro’s characterization of significance. However, in its letter to BC Hydro of December 21, 2012, the T8FNs recommended the following additional criteria for assessment of significance for current use of lands and resources for traditional purposes:
• Significance of Use. The significance of a particular use must be evaluated in order to determine the seriousness of any potential adverse effect on that use. It is clear that the importance of a particular use is related to the assessment of the seriousness of any impact on that use. A potentially severe impact on a relatively unimportant, passing use, for example, may not result in a serious adverse impact on final analysis. Conversely, what might appear to be a minor impact, on its face, may be quite serious if the affected use is of high significance to the First Nations users. • Importance of the landscape or area. The importance of the particular landscape or area within which an adverse effect may occur must be assessed in relation to the First Nation land users who make use of the landscape or area, or who rely on that landscape or area to support specific species of importance. Generally, the more significant the area or landscape is to the users, the higher the degree of seriousness of the impact. • Multiplicity of Practical Uses. This criterion looks at the level of impact in terms of the number of different practical uses to which a particular area or resource is put by the First Nation users. An impact that affects multiple uses will generally be viewed as more severe than one that affects a single practical use. • Multiplicity of Cultural Uses. This criterion assesses impacts based upon the number of different cultural uses assigned to land or resources by the First
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Nations users themselves. An impact that affects multiple cultural uses will generally be viewed as more severe than one that affects a single cultural use.20
The Proponent ignored T8FNs advice and used the following thresholds for the above- noted determination of significance (EIS Section 19.5.4, pg. 19-105): • A current use of lands for traditional purposes would be permanently undermined and its practice cannot be readily reproduced elsewhere; and • The current use and area is indicated to be of high value or importance among Aboriginal groups for traditional purposes.
In our opinion, it is very unusual, and not technically sound to require an effect to be permanent and ‘not readily reproduced elsewhere’. Despite requests by the T8FNs through the IR process, the proponent has provided no reasonable justification for why impacts must be ‘permanent’, or not ‘readily reproduced elsewhere’ in order to be significant. Appendix C to this submission provides advice to the Joint Review Panel on a more sound approach to significance evaluation.
4.2 Key Concerns Regarding the Proponent’s Findings BC Hydro has underestimated the significance of Project-specific and cumulative effects on current use of lands and resources for cultural purposes, and has inadequately considered and integrated the voluminous information provided by the T8FNs on this topic. BC Hydro already recognizes that some impacts to use of lands and resources for cultural purposes are likely to be significant but suggests these impacts will be site- specific and justifiable. A more full reading of the evidence, already submitted by the T8FNs, indicates that the remaining relatively undisturbed portion of the Peace River valley that BC Hydro proposes to flood or otherwise damage through the Site C Project is a critical cultural use area as a whole, and an essential and irreplaceable part of the T8FNs’ cultural landscape, which to date remains relatively undiminished in value by industrial change. While there are specific gathering, harvesting, and heritage sites that
20 The above-noted criteria were developed from a review of the relevant case law, including Haida Nation v. British Columbia, 2004 SCC 73 generally and at paragraph 44 and West Moberly First Nations v. British Columbia, 2010 BCSC 359 (affirmed by BC Court of Appeal: 2011 BCCA 247) generally and at paragraphs 62-63.
November 2013 37 © 2013 Treaty 8 Tribal Association will be irrevocably and permanently destroyed by the Project should it proceed, the significance of the resulting impacts are much larger than the Proponent suggests in the EIS; may have substantial adverse spin-off effects on social and cultural aspects of T8FNs’ health, well-being and way of life; and, from the perspective of the T8FNs, cannot be mitigated or compensated for by any means, and therefore must be avoided.
4.3 Significant Residual Adverse Environmental Effects Related to Traditional Harvesting, Cultural Use and Intangible Heritage Resources Contrary to the findings of BC Hydro, our analysis suggests that the following additional significant residual adverse effects are likely should the Project proceed: • Direct effects of the proposed Project on current use of lands and resources for traditional purposes by Aboriginal peoples are likely to be significant, as a result of the collective residual effects and species or resource-specific significant effects on subsistence harvesting of fish, plants, and wildlife, reduced access to known and preferred harvesting sites, and increased competition for increasingly scarce harvested resources by a larger number of non-Aboriginal harvesters, as well as on cultural sites, and also on intangible cultural resources including transmission of knowledge and sense of place; • Cumulative effects of the proposed Project on current use of lands and resources for traditional purposes by Aboriginal peoples, including harvesting, and intangible cultural resources, are likely to be significant in combination with prior and ongoing effects of past, present and likely future industrial activities.
Likely adverse effects pathways on current use of lands and resources for traditional harvesting purposes (and by extension, demonstrable Treaty 8 rights infringements) associated with the Site C Project include:
• Loss of fish harvesting locations, especially but not limited to confluences of the Halfway and Moberly Rivers with the Peace River (in response to ab_0001-227 this is deemed insignificant by BC Hydro); • Increased land alienation, (see ab_0001-707, 713, 732, 745) with additional land, transportation routes, and waterways either off limits to harvesting or alienated due to increased access to non-Aboriginal people who have crowded First Nations out of much of their high value harvesting areas already (see ab_0001- 623). Also, there is likely already a significant level of land and resources alienation from industry, agriculture, urban growth, recreation, perceived and real
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contamination, linear disturbance, and prior inundation on T8FNs rights (see ab_0001-711). • Loss of access to prime harvesting areas, along with losses of prime habitat for ungulates such as elk and moose, including islands in the Peace River. • Loss of access to and eventually knowledge of, areas with food and medicinal plants, including rare plants and plants with high cultural meaning.
The Project as proposed will provide a major contribution to an already decreased ability by the T8FNs to meaningfully practice their Treaty 8 harvesting rights, with the inundation of a key harvesting and wildlife rearing area and loss of access to fishing sites and change in fish species composition. The already significant cumulative effects context of alienation from large portions of T8FNs territory makes this an even more important loss.
Despite changes to the river system and land privatization and agriculture that have, along with other changes, had some adverse effects on Treaty rights practices, the remaining portion of the Peace River valley in B.C., especially between Hudson’s Hope and Taylor, has continued to be a critical area for Treaty rights practices for the T8FNs over the past 50 years. In the T8FNs’ submissions, strong evidence has been shown of past, present and desired future use of the portion of the Peace River valley likely to be affected by the Project should it proceed, by multiple T8FNs members.
BC Hydro has not provided any compelling evidence to support its argument that Site C will not cause a significant adverse effect on meaningful practice of T8FNs’ hunting, trapping, fishing and incidental Treaty rights. On the contrary, BC Hydro has turned a blind eye to evidence put forward by the T8FNs about the critical importance of the Peace River valley to harvesting and cultural activities. BC Hydro has conducted none of the requested follow-up studies put forward by T8FNs to strengthen its understanding of the importance of the Peace River valley to T8FNs’ Treaty rights practices and culture.
With the current significant effects loading in the Peace River valley, the T8FNs have struggled but found a way to still use and value this critical portion of the cultural and socio-economic landscape. Harvesting and gathering, teaching and learning, spiritual practices and relationship with the land have been maintained despite existing change. The Project would result in a fundamentally changed future where large portions of the remaining Peace River valley and associated tributaries are flooded. The River itself,
November 2013 39 © 2013 Treaty 8 Tribal Association the critical element of the Peace River valley, would be altered permanently and become a reservoir managed for production of power. Many islands will be flooded. The area will no longer resemble or act like a river. Important landmarks, gathering areas, burials and harvesting sites will be flooded and lost forever. Vegetation, including important and site-specific medicinal and other plant species, is likely to be lost to future T8FNs harvesting. Fish species composition will change, with the promotion of fish species T8FNs do not prefer to harvest over those they prefer to harvest.
If a decision is rendered, the evidence from T8FNs and lack thereof from BC Hydro suggests a precautionary finding of likely significant residual adverse effects on current use of lands and resources for harvesting purposes, as well as cultural values, and related significant adverse impacts on intangible heritage and the ability of the T8FNs to meaningfully practice their Treaty rights.
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Appendix A: Professional Profiles Education Craig Candler, Ph. D. (Anthropology) Ph.D. Cultural Anthropology, University of Director, Community Studies and First Nation Consultation British Columbia, Vancouver, BC, 2008 Employment History
The Firelight Group Research Cooperative-Victoria, BC M.A. Anthropology, University of Alberta, Director/Community Studies and First Nations Consultation Specialist Edmonton, AB, 1999 (2009 to present)
Responsible, as a founding member and director, for helping establish The B.A. (First Class Honors) Firelight Group, a group of aboriginal and non-aboriginal research Anthropology, University of professionals providing respectful and respected environmental and social Alberta, Edmonton, AB, science research, consulting, and support services in processes where 1996 aboriginal and non-aboriginal interests interact, and where good relationships and quality research tools are desired by all sides. Currently serving as the president of the Firelight Group, tasks include business and organizational development, as well as design, development, and delivery of technical services including community-based traditional knowledge research and documentation systems, environmental and socio-cultural impact assessments and monitoring programs, indigenous land use mapping, archival research, community involvement processes, and First Nations consultation support services.
Golder Associates Ltd. – Victoria, BC
Senior Anthropologist/Traditional Studies and Community Consultation Specialist (2005 to 2009)
As Senior Anthropologist, provided technical leadership to the cultural sciences division of Golder in the fields of traditional studies and First Nations consultation, particularly within the context of environmental impact assessment. Responsible for design, development, and oversight of community-based traditional knowledge research and documentation systems, capacity building initiatives, environmental and socio-cultural impact assessment and monitoring, indigenous land use mapping, public involvement processes, archival research, and First Nations consultation support services. Tasks included leading baseline data collection, environmental assessment, and community involvement components related to community-based traditional use studies and First Nations consultation support, including projects with estimated capital costs in excess of one billion dollars. Projects included mines, wind and other energy developments, civil infrastructure, environmental remediation, and linear energy transmission projects. Key clients and partners included First Nations across BC and western Canada, private industry, and government
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agencies.
University of British Columbia, PhD Researcher – Vancouver, BC
Lead Researcher, Changing Land Use and Children's Health in Mae Chaem, Northern Thailand (2000 to 2008)
Responsible for designing, grant writing, coordinating, and conducting anthropological research within a multi-method (qualitative and quantitative) and community-based research project on oral histories of land use and child health change in Northern Thailand since the 1950s.
Third Stone Community Research – Edmonton, AB
Anthropological Consultant (1995 to 2005)
Founder and Principal of a private consulting company offering applied anthropological, community-based research and consultation services, specializing in First Nations land use documentation and mapping, and comprehensive socio-cultural and community impact assessment and mitigation. Projects included leading a large multi-year traditional use study for the Treaty 8 Tribal Association of BC, as well as smaller projects for communities and research agencies based in Alberta, BC, Manitoba, and the Northwest Territories.
National Centre for Excellence in Sustainable Forest Management, University of Alberta – Edmonton, AB
Research Coordinator (2000)
Research and funding coordinator for socio-economic, community sustainability, and integrated and cumulative effects related projects supported through the NCE-SFM.
Centre for the Cross-Cultural Study of Health and Healing, University of Alberta – Edmonton, AB
Coordinator and Consultant Liaison (1995 to 1999)
Coordinator of office activities including development of a consulting program for academic and contract research, project proposal development, grant applications, reporting, financial administration, marketing and managing a publishing series, organizing public workshops and lectures, and coordinating volunteer involvement.
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Project Experience – Traditional Knowledge (TEK) and Traditional Use Studies (TUS)
Mikisew Cree First Primary Researcher and Project Manager for a TEK/TUS project involving Nation and Athabasca documentation of community use and knowledge along the Athabasca Chipewyan First Nation River to inform decisions regarding water withdrawals and oil sands production. Jointly funded through two First Nations, the project involves Northwest Alberta documentation of First Nations use and interests through interviews and mapping, and understanding the effects water quality and water level change on the practice of aboriginal and treaty rights along a major river and within an ecologically sensitive delta and lake area.
British Columbia Component Lead for an overview-level TUS for planning of a linear Transmission transmission project involving archival review, field interviews, and Corporation coordinated research with more than forty First Nations with traditional territories in the Fraser Valley, Fraser Canyon, and in the area of Nicola Southwest British Columbia Lake. Tasks included methodology development, interview protocols, First Nations liaison, supervising and participating in mapping interviews and archival review, and leading analysis and reporting.
Kwoiek Creek Component Lead for community-based TUS conducted for environmental Hydroelectric Project assessment of a run-of-river project, including transmission line, proposed by a First Nation joint venture. The project involved generation of energy Southwest British Columbia and transmission through multiple First Nations territories. Tasks include methodology review, supporting First Nations interviewers to complete baseline, and leading community-based impact assessment and reporting.
Western Canadian Coal Project Manager for the completion of Socio-Economic and Aboriginal Interests and Use chapters for an Environmental Assessment (EA) Northeast British Columbia application to the BC Environmental Assessment Office (BC EAO) regarding a proposed coal development in northeast BC. The project involved working with First Nations and Metis groups and included methodology review, First Nations and aboriginal liaison, and reporting.
Peace River Coal Component Lead for overview-level TUS and TEK work conducted for EA purposes for two coal mines and related developments. The project Northeast British Columbia involved working with six First Nations and Metis groups. Tasks have included methodology development, First Nations liaison, archival review, community-based mapping, focus group interviews, and reporting.
North Coast Wind Energy Component Lead for overview and operational-level TUS proposed within a
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Northwest British Columbia harmonized BC Environmental Assessment Act (BCEAA)-Canadian Environmental Assessment Act (CEAA) process on the north coast of BC. The project involved a large generation area and more than 100 km of linear transmission corridor involving the traditional territories of three First Nations. Tasks included methodology development, archival review, First Nations liaison, and preliminary coordination of overview-level TUS interviews.
Aseniwuche Winewak Project Manager and lead researcher for a gap analysis of TUS data used Nation for First Nations consultation purposes, providing specialist support for the optimization of an internal First Nations consultation and referral system, Grande Cache, AB and providing research services in support of oral history interviews and document preparation related to a comprehensive claim.
Treaty 8 Tribal Project Coordinator for all aspects of a large multi-community, multi-year Association traditional use study (TUS) with a budget in excess of one million dollars, including mapping and TEK interview components, training, project Northeast British Columbia management, site visits, GPS data collection, archival review, GIS and database design, digitization, indigenous toponomy, and oral history. Facilitated negotiation of community consultation and information protection protocols.
Sawridge First Nation Methodology development, interview protocols, First Nations liaison, and and Kapawe’no First proposal development. Nation Traditional Use Study
Central Alberta
Bigstone Cree Nation Assisted with gap analysis, evaluating community goals and needs, and the TUS Gap Analysis potential of an existing TUS data set to meet those goals and needs. Review of digital data, methodologies, and community goals. Northwest Alberta
Beaver First Nation Methodology development, First Nations liaison, training and capacity Traditional Use Study building workshops on community-based research, mapping strategies, GIS/GPS technology, and proposal writing. Northwest Alberta
Dene Tha’ Consultation Methodology development and expert review of TUS data collection and Pilot Project mapping, digital data capture, and database design. Assisted negotiation of final information sharing and consultation protocols. Northwest Alberta
Halfway River First Designed and delivered TUS methodology, field work, training, and Nation Traditional Use capacity building in mapping and land use research.
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Study
Northeast British Columbia
Dene Tsaa Tse K’nai Designed and delivered TUS methodology, field work, interviews, design of (Prophet River) First field recording and GPS strategies, coordination of field visits, training, Nation Traditional Use reporting and capacity building. Study
Northeast British Columbia
Literature review and critique of emerging GIS and GPS technologies in the Canadian Circumpolar context of traditional knowledge research in Canada’s north. Institute Edmonton, AB
Gwich’in Tribal Council Archival research in the Hudson’s Bay Archives, archival documentation and the Sustainable and report writing on historic environmental change and resource use along Forest Management the Mackenzie Delta. Network
Winnipeg, MN
Project Experience – Socio-Economic and Cultural Impact Assessment
Western Canadian Coal Project Manager for the completion of Socio-Economic and TUS chapters for an Environmental Assessment (EA) application to the BC Environmental Northeast British Columbia Assessment Office (BC EAO) regarding a proposed coal development in northeast BC. The project has involved working with First Nations and Metis groups. Tasks have included methodology review, First Nations liaison, and reporting.
Public Works and Design and implementation of public and First Nations involvement, Government Services including social studies, related to a risk assessment of contaminants in a heavily used urban industrial waterway. Victoria, BC
Treaty 8 Tribal Assisted with design and development, including fundraising, criteria and Association indicators, and determination of community-relevant VECs (Valued Ecosystem Components) for a community-based and First Nations-led Northeast British Columbia centre for cumulative impact assessment, geared particularly towards the oil, gas, and forestry sectors, and utilizing both community- and science-
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based knowledge.
World Agroforestry Design and delivery of a two-year study working within a multidisciplinary Centre team to develop community-based methods for tracing environmental and community health changes over time, particularly with regards to pesticide Chiang Mai, Thailand use and early child health. Methodology development, training, field interviews, analysis, reporting.
Treaty 8 Tribal As-and-when needed technical support and recommendations to local Association governments towards the resolution of community concerns involving forestry, oil and gas, highways, and agriculture sectors. Northeast British Columbia
Sustainable Forest Worked as part of a multidisciplinary management team to support and Management Network manage socio-economic and cumulative effects related to boreal forest industries and communities. Team included industry, academic, and Edmonton, AB government representatives.
Bigstone Cree First Extended field work and community-based research on the effects of Nation northern industry, particularly pulp and paper development, upon social relations, community factionalism, and the practice of traditional medicine in Northern Alberta a Northern Cree community.
Project Experience – First Nation Consultation and Negotiation
BC Hydro Aboriginal Assisted in leading a consultation team providing specialist First Nations Relations and consultation services in relation to the environmental permitting of a large Negotiations transmission line project in northwestern BC. The project involved multiple First Nations in the area of Terrace, BC, as well as the Nisga'a Nation. Northwest BC Tasks included procedural consultation support, acting as point of contact for First Nation consultation, coordination and documentation of consultations within the environmental assessment process, supporting negotiations regarding memorandums of understanding and provision of capacity funding, as well as support, where appropriate, for negotiation of long-term impact and benefits agreements (IBAs) or other agreements related to project construction and operation.
Mount Hays Wind Farm Component Lead for First Nations consultation services in relation to LP permitting of a proposed development through provincial and federal processes. The project involved three First Nations and traditional territory Northwest BC interests within an existing municipal boundary. Tasks included procedural consultation support, acting as point of contact for First Nation consultation,
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coordination and documentation of consultations, facilitation of negotiation regarding letters of understanding and development of accommodation packages including non-financial and financial accommodations, and support for negotiation of a long-term impact and benefits agreement (IBA).
North Coast Wind Energy Component Lead for First Nations consultation services in relation to a multi-billion dollar project being processed through a harmonized provincial- Northwest British Columbia federal process. The project involved supporting consultation and accommodation discussions involving three First Nations and related traditional territory interests south of Prince Rupert, BC. Tasks included procedural consultation advice, acting as point of contact for First Nation consultation, coordination and documentation of consultations, facilitation of negotiation regarding letters of understanding and development of accommodation packages including non-financial and financial accommodations, and negotiation of long-term impact and benefits agreement (IBA).
Catalyst Paper Corp. Project Manager for provision of Public and First Nations consultation support, including analysis of First Nations consultation requirements Vancouver Island, BC and strategic advice. Tasks included delivery of consultation tools including letters, contact matrices, project website development, and open house coordination.
Public Works and Project Manager for provision of expert consultation support, including Government Services analysis of First Nations consultation requirements under federal policy and recent court decisions. Tasks included project and document review and Victoria, BC reporting.
Aseniwuche Winewak Project Manager for conducting a gap analysis of TUS data used for Nation consultation purposes, and providing expert support for the optimization of an internal First Nations consultation and referral system. Grande Cache, AB
Treaty 8 Tribal Assisted with the design and development of a TUS data system designed Association for referral and consultation purposes. Tasks included design and implementation of GIS and databases, and negotiation of information Northeast British Columbia sharing protocols.
Dene Tha’ Consultation Methodology development and expert review of TUS data collection and Pilot Project mapping, digital data capture, and database design. Assisted negotiation of
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Northwest Alberta final information sharing and consultation protocols.
Project Experience – Training and Capacity Building
North Coast Wind Energy Designed and delivered a week-long training workshop to three north coast First Nations on community-based TUS/TEK research, including traditional Northwest British Columbia use mapping, for environmental assessment purposes. Training included classroom and field components and was taught in collaboration with four community Elder instructors.
Treaty 8 Tribal Design and development (including fundraising) for a community-based and Association First Nations-led centre for cumulative impact assessment utilizing both traditional and scientific knowledge and criteria for evaluating and Northeast British Columbia monitoring environmental, socio-economic, and health changes.
University of British Design and delivery of a senior university-level course on the ethnography Columbia of Southeast Asia.
Vancouver, BC
University of Alberta Design and delivery of senior university-level courses in the School of Comparative and Religious Studies, and Department of Anthropology. Edmonton, AB
Northern Lights College Design and delivery of a college-level course on anthropology, community research, and natural resource management for post-secondary Gwich’in Inuvik, NT and Inuvialuit students.
Professional Affiliations
Canadian Anthropological Society (CASCA) – Member of the CASCA Executive, effective June 2010, representing applied and practicing anthropologists in Canada at the national level.
Canadian Asian Studies Association – Canadian Council for Southeast Asian Studies (CASA-CCSEAS)
American Anthropological Association (AAA)
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Society for Applied Anthropology (SfAA)
Selected Publications
Peer Reviewed Craig, Candler, Rachel Olson, Steven Deroy and Kieran Broderick. Publications, Journal Participatory GIS as a Sustained (and Sustainable?) Practice: The Case of Articles, and Treaty 8 BC. Participatory Learning and Action, 54 (2006), p. 325-356. Proceedings
Young, David and Craig Candler. 1997. “The Paradoxes of Northern Development in Canada: An Anthropological Perspective,” in The Proceedings of the 11th International Abashiri Symposium on Peoples and Cultures of the North, Abashiri, Japan.
Candler, Craig, David Young, Cliff Pompana and Denise Spitzer. A Hermeneutic Exposition of a Plains Healer’s Concept of “The Grandfathers”. Anthropos, 92 (1996), 115-128.
Books and Theses Candler, Craig. 2008. Changing Land Use and Children’s Health in Mae Chaem, Northern Thailand. Ph.D. thesis, University of British Columbia.
Candler, Craig. 1999. Healing and Cultural Formation in a Bush Cree Community. M.A. thesis, University of Alberta.
Scholarly Conference Invited Roundtable member for: Anthropological Connections: Networking Presentations Practising Anthropologists in Canada, Canadian Anthropological Society (CAS-SCA), Montreal, Canada (2010).
The Good, the Bad and the Glossy: Anthropology, Land Use Mapping and ‘Adequate’ First Nations Consultation and Accommodation. Presented at the annual meetings of the Society for Applied Anthropology, Vancouver, Canada (2006).
Incorporating TEK and Aquatic Toxicity Science. Interactive Workshop Presentation for the Aquatic Toxicity Workshop, Jasper, Canada (2006).
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Transcendent Life (and) Science: Medicine, Ecology, and Flexible Biotechnical Citizenship in a Northern Thai Valley. Presented at the 32nd Congress of the Canadian Anthropological Society Merida, Mexico (2005)
Globalization in a Pill: Opium, Yaa Baa, and Addictive Modernity in Northern Thailand. Presented at the joint meetings of the Canadian Council for Southeast Asian Studies (CCSEAS) and the Canadian Asian Studies Association East Asian Council (CASA-EAC), Université de Montréal, Canada (2003).
Maps, Dreams, and GIS: Telling Stories with New Technology. Presented at the 27th Congress of the Canadian Anthropological Society (CAS-SCA), University of Calgary, Canada (2000).
The Concept of Significance in Cultural Resource Management: Protecting What Past for Whose Future? Presented at the 1999 Chacmool Conference on Indigenous Peoples and Archaeology, University of Calgary, Canada (1999).
Paper, Pipes and the Pentecost: Healing and Change in a Northern Cree Community. Presented at the 25th Congress of the Canadian Anthropological Society (CAS-SCA), Toronto, Canada (1998).
Reviews and Other Craig Candler has provided external and/or internal peer review on specialist technical reports, academic articles, and book length works, including peer review of chapters and contributions to Terry Tobias' (2010) landmark work, Living Proof: the Essential Data-Collection Guide for Indigenous Use-and-Occupancy Map Surveys.
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EDUCATION ALISTAIR MACDONALD MA Geography, Simon Fraser University, DIRECTOR AND ENVIRONMENTAL ASSESSMENT Burnaby, BC, 2001 SPECIALIST
MAINTAINS ACTIVE RESEARCH AND CONSULTANCY EMPLOYMENT HISTORY ASSOCIATIONS WITH:
On Common Ground THE FIRELIGHT GROUP – EDMONTON, AB Consulting, Vancouver, BC; specializing in 4.3.1 Co-Founder and Director (2009 to date) corporate social responsibility, social Responsible, as co-founder and director, for helping establish The licensing, community Firelight Group, a firm of aboriginal and non-aboriginal professionals engagement, strategic specialized in providing respectful and respected environmental and planning and social science research, consulting, and support services in processes social/cultural impact where aboriginal and non-aboriginal interests interact, and where good assessment, with a focus relationships are desired by all sides. Tasks include business on mining in Latin development, as well as design, development, and delivery of technical America. services including community-based traditional knowledge research and documentation systems, environmental and socio-cultural impact assessments and monitoring programs, indigenous land use mapping, SENES Consultants Ltd., GIS technical support and training, research, community involvement Richmond Hill, ON; processes, and First Nations consultation support services. Project work specializing in socio- includes: economic and cultural impact assessment, § Guideline Development – lead author of draft Cultural Impact environmental Assessment Guidelines for the Mackenzie Valley Review Board, Yellowknife, NT, 2012 assessment process
management, policy analysis, and § Third Party Review - expert advisor to Athabasca Chipewyan and Mikisew Cree First Nations on socio-economic and cultural effects consultation services with assessment for several proposed developments in the oil sands a focus on Aboriginal region of northern Alberta in 2012, including: communities potentially § Teck’s proposed Frontier Mine affected by resource § Shell’s proposed Jackpine Mine Expansion § Cenovus’ proposed Telephone Creek SAGD Operation developments.
§ Project Manager and Trainer for Treaty 8 First Nations (BC) Communities Assessment (SEIA and Cultural) for the BC Hydro Site C Project (2012)
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PRESENTATIONS AND SEMINARS § Project Lead on a series of traditional use studies and environmental assessment processes for Fort Nelson First Nation from 2011 to present, including: Developed and ran § Encana Fontas Traditional Use Study dozens of presentations § TCPL Kyklo Komie Ekwan Pipeline (NEB) and seminars on social, § Quicksilver Resources Fortune Creek Gas Plant (BCEAO) § TCPL Komie North Expansion Pipeline (NEB) economic and cultural
impact assessment for diverse audiences § Senior Technician on direct-to-digital interviews for Treaty 8 Tribal Association on use and occupancy study associated with BC between 2005 and Hydro Site C proposed dam (2011) present. Recent
examples include: § Project Lead on direct-to-digital interviews and on-territory mapping for Doig River First Nation on use and occupancy study for Transcanada Pipelines Ltd.’s proposed Gordondale Loop gas pipeline (2011)
“Cultural Considerations § Third-party review work for environmental assessments/regulatory in EIA and Project for West Moberly First Nation on BC Hydro DCAT Transmission Planning”, Northern Line (2012) Geoscience Forum, Yellowknife, NT, § Lead on socio-economic impact assessment for the Ktunaxa First November 16-18, 2010. Nation’s (BC) submission as part of Teck Coal’s Line Creek Phase II environmental assessment (2010-2011) “Social Impact Assessment and § Technical Expert on review of Existing Impact Benefit Agreements Protected Areas”, NWT for Athabasca Chipewyan First Nation Protected Areas Strategy Workshop, Yellowknife,
NT, April 23-4, 2009. SENES CONSULTANTS LIMITED – EDMONTON, AB “Cultural Impact Assessment: Guidelines 4.3.2 Environmental Assessment Specialist (2010 to 2012) for Maximizing Effectiveness”, Environmental Law and Environmental Assessment Specialist responsible for SENES’ Alberta Regulation North of 60, branch office, providing environmental assessment expertise, traditional Canadian Institute, use study work, and social, economic and cultural impact assessment Edmonton, AB, Nov.13- guidance and practice. Project work includes: 14, 2008.
“Integrating Cultural § Project Lead, development of Cultural Impact Assessment Impact Assessment into Guidelines for the Mackenzie Valley Review Board (2009-10, Development Planning”, 2012-ongoing) International Association for Impact Assessment § Environmental Assessment Process Advisor, Giant Mine Remediation Project (2012)
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annual global conference, May 4, 2008, § Project Lead, Consultation on Effects of the James Bay Winter Perth, Australia. Full day Road, for Kimesskanemenow Corporation (2011) workshop co-facilitated with Dr’s. Ciaran § Project Manager, West Moberly First Nation Water Needs O’Faircheallaigh and Assessment (2012) Ginger Gibson. “Integrating Cultural § Third-party socio-economic and cultural impact assessment review Impact Assessment into work for environmental assessments/regulatory for: o Tlicho Government on De Beers Gahcho Kue Diamond EIA: Overcoming Mine EIR (2011) Common Hurdles”. o Tlicho Government on Fortune NICO Mine EA (2011- International Association 2012) for Impact Assessment Western and Northern § Renewable resources assessment for North Arm Candidate Canada annual Protected Area, NWT (2010) conference, Cultural Impact Assessment: § Two-phase Socio-economic Assessment of Sambaa K’e Beyond the Biophysical, Candidate Protected Area, NWT (2011-2012) February 28-9, 2008, Yellowknife, NT. § Technical Expert, 2010 NWT Environmental Audit
“Sustainability: an
Assessor’s Viewpoint”, February 21, 2008, Canadian Bar Association conference, INDEPENDENT CONSULTANT – YELLOWKNIFE, NT AND Yellowknife, NT. EDMONTON, AB PUBLISHED PEER REVIEWED WORKS4.3.3 (2009 - 2010)
Gibson, G, MacDonald, Specialized in research on mining and mining corporations, indigenous A. & C. O’Faircheallaigh resource management issues and strategy development, social, (2011). “Cultural economic and cultural impact assessment, impact benefit agreement considerations preparations. Clients included: associated with mining and indigenous § Kitikmeot Inuit Association – corporate research and assistance in communities”. SME development of engagement strategy with Newmont Gold. Mining Engineering Handbook, chapter 24.2, § On Common Ground Consulting – Lead Writer for environmental Society for Mining, assessment and public engagement documents for a multi-billion
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Metallurgy and dollar expansion by Colombian coal miner Carbonnes del Cerrejón Exploration. Limited
MacDonald, A. & G. § Indian and Northern Affairs Canada – Implementation research on Gibson (2006). “The Rise the Interim Draft Dehcho Land Use Plan of Sustainability: Changing Public Concerns and Governance Approaches MACKENZIE VALLEY ENVIRONMENTAL IMPACT REVIEW Toward Exploration”, in BOARD – YELLOWKNIFE, NT Society of Economic Geologists, Special Environmental Assessment Officer (2004-2009) Publication #12, Wealth
Creation in the Minerals Industry, Littleton, CO, The Mackenzie Valley Environmental Impact Review Board is a co- pp. 127-148. management board responsible for all environmental assessments (EAs) of proposed developments in the Mackenzie Valley of the OTHER PUBLISHED Northwest Territories. In-house expert on social, economic and cultural WORKS impact assessment for all EAs. Responsibilities included:
MacDonald, A. 2002. Industry in Transition: a § Environmental Assessment Officer (EAO) responsible for the conduct of environmental assessment, reporting to the Review Profile of the North Board, and writing reports of environmental assessment and American Mining Sector. reasons for decision. Winnipeg: International Institute for Sustainable § Senior EAO on an interim replacement basis, 2007-8 Development, 156
pages. § Lead EAO for files such as:
o Canadian Zinc Prairie Creek Mine o De Beers Gahcho Kue Diamond Mine o Tamerlane Pine Point Project o Bayswater and Uravan exploration EAs in Upper Thelon
§ Project lead in the development of Socio-economic Impact Assessment Guidelines for the environmental impact assessment process in the Mackenzie Valley.
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Appendix B: Additional Work Needed to Confirm or Disprove BC Hydro Assumptions
In order to provide confidence in, or disprove BC Hydro’s assertions, the following additional work should be required:
1) Cultural and Medicinal Plant Knowledge Study: Building on the TLUS map data, this would need to include field visits and on-territory interviews/camps with elders and knowledge holders, ideally in spring and summer when plants are in bloom and fruit. Focus would be on key plants and areas (including rare ceremonial plants, medicines and culturally important berry crops) identified in the Peace River valley through the mapping process. Work may also draw on, or contribute to, other vegetation related work conducted by BC Hydro in the Site C area.
2) Wildlife, Habitat, and Ecological Knowledge Study: Building on the TLUS map data, this work would require interview analysis, group interviews, and field components to identify and document key wildlife and fish habitat or other ecological features in the Peace River valley identified through mapping interviews, including movement corridors, ecological dynamics, and areas associated with moose, bison, elk, caribou, bear, grizzly, fur (especially, but not limited to, marten) and other culturally important species. Work may also draw on, or contribute to, other wildlife related work being conducted by BC Hydro in the Site C area.
3) Oral History, Place Names and On-territory Mapping Study: Building on the TLUS map data, this would include field visits and GPS verification of key habitation, transportation and cultural/spiritual values already mapped, including travel by horseback, boat, foot, or other means along identified trails and water transportation corridors, documentation of place names, oral histories and other features. Objectives would include on-territory documentation of oral histories (video and audio) associated with identified values. This should be planned to correspond with summer camps at Bear Flats or other locations in the valley, with the focus being on trails, gathering places, sacred areas, or other values likely to be impacted by direct or indirect Project effects.
5) Treaty-based Cumulative Effects Study: Building on the TLUS map data, and other map data regarding existing levels of industrial and other land use, this study would
November 2013 55 © 2013 Treaty 8 Tribal Association consider cumulative effects on Treaty 8 rights beginning with an estimation of conditions at time of signing of Treaty 8 (c. 1899) to present, and considering Project and reasonably foreseeable development (RFD) scenarios. Ideally, this should also consider changes in the environment (such as forest fires, warming, floods, or other reasonably foreseeable environmental change).
6) Wild Foods Consumption Study: This would build on the TLUS harvest survey data and include actual and rights-based estimates of wild food consumption for average and high consumers. This would be designed to inform human health assessment studies.
7) Traditional Resource Use Impact Management and Planning Study: This study would build on the cumulative effects study to consider the resources, places and conditions necessary for Treaty rights to be practiced, and identify whether the resources (e.g. moose), places and conditions needed for future practice would exist in the presence of the Project, and preferred approaches to impact management.
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Appendix C: Recommended Approach to a Technically Sound Assessment and Threshold of Significance
The authors submit that for a reasonable assessment to be made, residual effects should be characterized using methods consistent with Canadian Environmental Assessment Agency (CEAA) guidance documents (Hegmann et al., 1999). The assessment should follow a reasonable threshold for significance and the assessment should be conducted at the level of the most vulnerable or sensitive sub-population or user group, generally the household or individual, and the finding should be provided with a level of confidence indicated. While good practice would involve further consultation directly with the affected First Nations regarding their sense of reasonable thresholds and assessment methods, the parameters below are recommended for the Joint Review Panel’s consideration:
Test for Significance A significant effect is considered to be an effect (positive or adverse) that is attributable to the Project or the Project in combination with other changes (including effects of other projects or human activities), and that is likely to result in: • Strong concern or interest by T8FN members; and • Clearly discernible (measurable or perceivable) changes to the preferred exercise of a culturally important practice, or land, water, or resource use or right.21 Significant effects are generally related to a change in the availability or quality of, or access to, resources (tangible or intangible) important to knowledge, use, or rights practice. Significance evaluation is based on post-mitigation residual effects. Significance may vary when considered at various spatial or social scales (e.g., individual, family, or community). Evaluation is based on impact characterization (summarized by the environmental consequence rating), assumes the most sensitive user or receptor (family or sub-group), and is based on an explicit significance threshold.
21 This definition, including consideration of measurable or perceivable effect, is similar to qualitative thresholds used in other environmental assessments, and is consistent with good practice described in the CEAA’s Cumulative Impact Assessment Practitioner’s Guide (Hegmann et al. 1999).
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Appropriate level of Assessment: Most Sensitive or Vulnerable Receptors Consistent with good EA practice (Vanclay, 2003), a technically sound assessment is designed to be conservative and is based on the most sensitive receptors or most vulnerable users. In the case of impacts of the Site C Project on T8FNs, this is understood to be those T8FNs members most reliant on access to lands and waters that will be impacted by the proposed Project. Confidence in Predictions Confidence in predictions provides an indication of the level of certainty that the effects of the Project will occur at the level predicted (Hegmann et al., 1999). High levels of confidence require strong and relevant primary data collected with knowledgeable community members. Lower levels of confidence result from predictions based on professional judgments made without the benefit of strong and relevant primary or secondary data sources. For the purpose of this submission, confidence in predictions may be assigned based on the following three categories: • Low: predictions are based on professional judgment with limited available secondary or primary information to inform them. • Medium: predictions are based on professional judgment and primary information that is limited due to the extent of primary research or level of community representativeness among research participants. • High: predictions are based on professional judgment, strong primary information (including mapping at 1:50,000 or better) conducted with a reliable sample, or operational-level studies involving field visits with knowledge holders, strong project information, and secondary literature review.
November 2013 58 SITE C CLEAN ENERGY PROJECT Panel Hearing Submission November 25, 2013 TREATY 8 FIRST NATIONS
Treaty Rights and Reconciliation: Legal Framework Guiding the Assessment of Adverse Effects on the Treaty 8 First Nations
Treaty 8 Tribal Association on behalf of the Treaty 8 First Nations
© 2013 Treaty 8 Tribal Association
Table of Contents
1 INTRODUCTION ...... 4 2 UNDERSTANDING TREATY 8 HARVESTING RIGHTS ...... 6 2.1 Indigenous Perspectives on Treaty-Making ...... 6 2.2 Treaty Interpretation in the Courts ...... 11 2.3 Treaty Text and Oral Promises ...... 12 2.4 More Than a Mere Right to Hunt, Fish and Trap “For Food” ...... 15 2.5 Rights “Incidental” to the Harvesting Right ...... 17 2.6 The Crown’s Right to “Take up” Land ...... 18 3 ASSESSING IMPACTS WITH REFERENCE TO THE HISTORICAL CONTEXT .... 19 4 THE GOAL OF RECONCILIATION ...... 21 5 CONCLUSION: THE PANEL’S TASK – RECONCILIATION IN PRACTICE ...... 23
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1 INTRODUCTION
1. This written submission of the Treaty 8 First Nations (“T8FNs”) sets out the legal framework that will assist the Joint Review Panel (the “Panel”) in its assessment of the significance of the adverse environmental effects of the proposed Site C project (the “Project”) on the T8FNs, their physical and cultural heritage, current use of lands and resources for traditional purposes and structures, sites and on things that are of historical, archaeological, paleontological or architectural significance, as required by section 5(2)(c) of the Canadian Environmental Assessment Act, 2012.1
2. Over the course of the Panel Hearings, the Panel will hear the leaders and members of the T8FNs speak about the cultural and spiritual richness of the Peace River Valley. This is a place that has brought families and communities together for generations; it is place where Treaty harvesting rights are regularly practiced and taught to younger generations. It is a place where medicines are gathered, cultural celebrations take place and gravesites of former leaders are visited. It is a place like no other.
3. The Panel will hear from the T8FNs about a special gathering place along the Peace River called Bear Flats. It will also hear about a place upstream from Bear Flats called Attachie, where a former leader of the Fort St. John Beaver Band (now the present-day Doig and Blueberry River First Nations) is buried. Both of these sites are of great historical, archaeological and spiritual significance to the T8FNs; if the Project is approved, both of these sites will be inundated and destroyed.
1 S.C. 2012, c. 19, s. 52.
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4. The loss of significant sites like Bear Flats and Attachie cannot be mitigated. Their use, and the surrounding areas within the Peace River Valley relied on by the T8FNs for the exercise of their Treaty rights, are irreplaceable. The hydroelectric dams already constructed on the Peace River in Treaty 8 Territory in the 1960s and the 1970s have resulted in the loss of many significant areas where Treaty 8 rights have historically been practiced, concentrating use of the Peace River Valley in British Columbia by the T8FNs to the remaining stretch of the River between the Peace Canyon Dam at Hudson’s Hope to the BC-Alberta border. This is the only stretch of Peace River Valley that remains available for the exercise of Treaty rights and the T8FNs regularly celebrate its centrality to their cultural landscape through both collective and individual use.
5. The Joint Review Panel Terms of Reference (“TOR”) require the Panel to draw conclusions about the significance of the adverse environmental effects of the Project, if it were to proceed. Specifically, it is required to use information provided by Aboriginal peoples to inform its assessment of the significance of the Project’s potential environmental, economic, social, health or heritage effects.2
6. Submissions that illuminate the T8FNs’ understanding of their Treaty rights, and how the Peace River Valley supports the meaningful exercise of those rights, will be critical to the Panel’s determination of significance. Absent a culturally accurate depiction of the T8FNs’ understanding of their Treaty rights, the Panel may reach conclusions about significance that necessarily exclude an appreciation of the significance of the effects from the perspective of the T8FNs, who rely on the Peace River Valley for the exercise of their Treaty rights.
7. It is the information provided by the T8FNs that will allow the Panel to develop an understanding of the interrelationship between adverse environmental effects
2 Joint Review Panel Terms of Reference, s. 2.2 and 2.4(b).
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and Treaty rights. Adverse effects on physical and cultural heritage, places of historical, archaeological, paleontological or architectural significance and the use of lands and resources by the T8FNs for traditional purposes are adverse effects on the exercise of constitutionally-protected Treaty rights. They cannot be separated.3
2 UNDERSTANDING TREATY 8 HARVESTING RIGHTS
8. First Nation perspectives on treaty-making, the historical circumstances surrounding the making of Treaty 8 and the principles of treaty interpretation established by Canadian courts, provide the context needed to appreciate the manner in which the Project may adversely affect Treaty 8 rights.
2.1 Indigenous Perspectives on Treaty-Making 9. Treaty 8 is one of the numbered treaties negotiated between the federal Crown and Aboriginal people post-1867. While these numbered treaties serve as a foundation for much of the Canadian law governing the relationship between Treaty First Nations and the Crown, there is no shared understanding between the Treaty parties of the purpose and intent behind treaty-making and the nature of the relationship established as a result of treaty-making.
10. Indigenous approaches to treaty-making were grounded in pre-contact traditions of treaty-making within and among the various indigenous peoples or Nations that shared dominion over lands within the North American continent. Indigenous treaty-making included protocols and procedures and incorporated traditions and
3 Joint Panel Terms of Reference, s. 2.4(a).
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perspectives about how to live in peace with others. These indigenous traditions and perspectives structure the relationships of indigenous peoples to plants, fish, animals, to other members of their respective Nations, and to members of other Nations.4
11. Following contact with non-indigenous peoples, indigenous peoples or Nations used these traditions and perspectives, as expressed and understood in their languages, to negotiate treaty relationships and to structure peaceful coexistence with Crown agents. They understood these agents to be representing the authority responsible for governance over non-indigenous peoples coming onto their territories. Indigenous language understandings of the treaty relationships established during these treaty-making processes are known as “the spirit and intent of the Treaty”.5
12. Treaties 8 through 11 were negotiated in the context of the federal Crown’s intent to protect and safeguard the “livelihood” interests of the Treaty signatories in the lands and resources to be opened for settlement by the Crown.6
13. Development of a shared understanding of Treaty 8 livelihood commitments must be grounded in an appreciation of how the English-language word “vocations” and associated words such as “livelihood” may have been translated into the
4 Peace, Friendship and Respect: Understanding Indigenous Treaties in Canada, Assembly of First Nations, John Borrows, University of Toronto, 2002.
5 James [Sakej] Youngblood Henderson, Interpreting Sui Generis Treaties, Alberta Law Review, Vol. 36(1), 1997, page 74, notes that little attention has been paid to the need for establishing a common linguistic understanding of the intent of the parties to a Treaty, as a condition of arriving at the original intent of the parties required for contemporary interpretation of Treaty rights and Crown obligations. Youngblood Henderson advises that Aboriginal intent in relation to negotiation of Treaty relationships are enfolded in their language and oral traditions. These concepts of intent are expressed by the use of the term “the spirit and intent of the Treaties.”
6 R. v. Badger [1996] 1 S.C.R. 771 (“Badger”).
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Cree or Dene languages, and the meanings of such translations to Cree or Dene speakers.
14. One of the first steps in the search for a shared understanding of Treaty 8 livelihood commitments is the acknowledgement that many words, expressed within any language, have multiple meanings. Determination of which meaning is intended within any expression uttered in any language is highly dependent on the context in which the words are used.
15. The use of the word “vocations” in the texts of Treaties 8 through 11 is consistent with the historical opinions expressed by senior government officials and federal Treaty Commissioners about the ability of northern Aboriginal people to remain economically self-sufficient, if the Crown provided minimal levels of instrumental support for conduct of existing modes of “livelihood”, allowed them to continue with traditional patterns of occupancy and use of unoccupied Crown lands, and protected them from white competition in pursuit of their “usual vocations”.7
16. While the English-language word “vocation,” is generally understood to refer to a means of making a living, use of the word within certain contexts is understood to refer to a spiritual imperative, unique to certain “livelihoods” requiring one to act toward others in a particular manner – what is known as a “calling”. Within this larger concept of “vocation as calling”, English-language speakers recognize that the word “vocation” can refer to a prescriptive range of moral, cultural and legal obligations towards others associated with particular livelihood practices, such as the law or the priesthood. As explained below, this notion of “vocation as calling” is important to determining how “vocation” may have been translated into the Cree language.
7 Report of the Commissioners for Treaty No. 8, September 22, 1899.
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17. Treaty 8 was negotiated at Lesser Slave Lake in 1899 in what is now the province of Alberta with a number of Cree leaders and headmen in the English and Cree languages. Following these negotiations, the federal Treaty Commissioners travelled to other parts of the Treaty territory to obtain adhesions from other Aboriginal people.
18. Courts use the phrase “natural understanding” to refer to the meanings attributed to translations of the English text of Treaty documents by Aboriginal participants at the Treaty negotiations.8 In determining the “natural understanding” of how the English-language word “livelihood” could have been expressed within the Cree language and what cultural meanings would have been conveyed through translation into a corresponding Cree-language word, the Saskatchewan Office of the Treaty Commissioner9 worked with the Federation of Saskatchewan Indian Colleges to develop a broad, culturally-specific understanding of the relationship between the English-language word “livelihood” and the Cree word “pimâcihowan.”
19. First Nations elders and leaders identify “pimâcihowan” (pima atchee hoo win) as a central concept of Treaty 8. Its English translation corresponds roughly, in part, to “livelihood”, or earning a living, but includes broader cultural meanings related to “walking the way of life,” including all of the holistic practices and beliefs associated with Cree identity and culture, the relationships of the Cree peoples to the lands, the resources of the land, and the relationships of the Cree peoples to the “others” with whom the Cree agreed to share use of their lands and its
8 The term “natural understanding” is used by the Courts to refer to the meanings of the treaty promises as would have been understood by the Aboriginal signatories based on their experiences and understandings at the time of the Treaty negotiations. See, for example, Badger, supra at para. 53 and Nowegijick v. the Queen, [1983] 1 S.C.R. 29 at 36 (“Nowegijick”).
9 Statement of Treaty Issues: Treaties as a Bridge to the Future, (Saskatoon: Office of the Treaty Commissioner, 1998), at 40.
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resources.10 Cardinal and Hildebrant summarize the larger meanings evoked through the use of this Cree word:
“When Treaty Elders use the word pimacihowan, they are describing a holistic concept that includes a spiritual as well as a physical dimension. It is an integral component of traditional First Nation's doctrines, laws, principles, values, and teachings regarding the sources of life, the responsibilities associated with them, including those elements seen as necessary for enhancing the spiritual components of life and those associated with making a living.”11
20. These natural understandings of “pimacihowan”, or “livelihood as way of life,” are similar in meaning to the English-language concept of “vocation as calling,” and provide a deeper understanding of indigenous perspectives on the scope of the bundle of rights associated with “livelihood” that indigenous leaders sought to preserve under Treaty 8. These natural understandings allow for a deeper exploration into how the terms “their usual vocations of hunting, trapping and fishing” and “livelihood” would come to be interpreted, and what they would mean by the Aboriginal signatories. According to Harold Cardinal, while the Treaty relationship, expressed in Cree as “Whit Aski Toown,”12 was an agreement to share use of Treaty 8 lands with others, those lands identified as “not taken up” by the Crown under the Treaty were, within the natural understanding of the Cree, to be lands which the Aboriginal peoples saved for themselves. This natural understanding is expressed in Cree as “Skun Ga Na”.13
10 Statement of Treaty Issues: Treaties as a Bridge to the Future, supra at p. 42.
11 H. Cardinal and W. Hildebrant, Treaty Elders of Saskatchewan (Calgary: University of Calgary Press, 2001) at 43.
12 H. Cardinal, “Treaty 8 Right to Livelihood,” unpublished LLM thesis, Harvard Law School, 1997 at 52. Cardinal advises that “Whit Aski Toowin” is an agreement to co-exist or live in peace and harmony with another Nation on the land.
13 H. Cardinal, supra at 66-78. Cardinal concludes that lands set aside as Indian Reserves, and those lands where Aboriginal people could continue to exercise their usual vocations of hunting, trapping and fishing, (i.e. “lands not taken up”) continued, within the natural understanding of Aboriginal people, to be “Skun Ga Na”, or lands which
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2.2 Treaty Interpretation in the Courts 21. In addition to an appreciation of indigenous understandings of treaty-making, the Panel should also be aware of the approach to treaty interpretation take by the courts. The starting point is section 35(1) of the Constitution Act, 1982, which recognizes and affirms existing Aboriginal and Treaty rights. Section 35 is a “solemn commitment” that must be given “meaningful content.”14
22. The courts have established principles to guide the interpretation of a treaty made between the Crown and First Nations.15 These principles demonstrate the general approach, as well as particular rules of construction, that inform the understanding of the meaning of a Treaty provision, namely: a. A treaty is characterized by the intention to create obligations, the presence of mutually binding obligations and a certain measure of solemnity. It is an agreement whose nature is sacred.16
b. Treaties must be interpreted liberally, with any uncertainties, ambiguities, or doubtful expressions resolved in favour of the Indian signatories17; c. The words in a Treaty must not be interpreted in their strict technical sense nor subjected to rigid modern rules of construction18;
they reserved for themselves, excepting for those portions which may be taken up by the Crown, from time-to-time for purposes of settlement.
14 R. v. Sparrow, [1990] 1 SCR 1075 at 1108.
15 Badger, supra at para. 52; Nowegijick, supra at 36; West Moberly First Nations v. British Columbia (Ministry of Energy, Mines and Petroleum Resources), 2011 BCCA 247 at para. 132 (“West Moberly”).
16 R. v. Sioui, [1990] 1 S.C.R. 1025 at paras. 43 and 96 (“Sioui”).
17 R. v. Marshall, [1999] 3 S.C.R. 456 at para. 78 (“Marshall”).
18 Nowegijick, supra at 36.
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d. The terms of a Treaty must be interpreted in light of the historical context and the Treaty’s underlying purpose19; e. Extrinsic evidence relating to the parties’ respective understandings of the Treaty is relevant, even where there is no ambiguity on the face of the text;20 f. It is “unconscionable for the Crown” to ignore the oral terms and promises of a Treaty;21 g. As the honour of the Crown is always involved, no appearance of “sharp dealing should be sanctioned.22 h. Treaty rights must not be interpreted in a static or rigid way. They are not frozen at the date of signature. The interpreting court must update treaty rights to provide for their modern exercise. This involves determining what modern practices are reasonably incidental to the core treaty right in its modern context.23
2.3 Treaty Text and Oral Promises 23. Treaty 8 was made at the turn of the century, as the Crown contemplated opening up the west for settlement. It not only provides the First Nation signatories with substantive harvesting rights, it acts as a framework for future relations between the Crown and the Treaty 8 First Nations. As the Supreme Court of Canada noted in Mikisew:
Treaty 8 provides a framework within which to manage the continuing changes in land use already foreseen in 1899 and expected, even now, to
19 Sioui, supra at para. 16.
20 Marshall, supra at para. 11.
21 Marshall, supra at para. 12.
22 R. v. Taylor and Williams, (1981) 34 O.R. (2d) 360 (C.A.) at para. 18.
23 R. v. Sundown, [1999] 1 S.C.R. 393 (“Sundown”) at paras. 30 and 32.
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continue well into the future. In that context, consultation is key to achievement of the overall objective of the modern law of treaty and aboriginal rights, namely reconciliation.24
24. As mentioned, Treaty 8 was negotiated in the context of a federal Crown intent on protecting and safeguarding the livelihood interests of Treaty signatories in the lands and resources to be opened for settlement by the Crown. As such, Treaty 8 provides for the protection of the Aboriginal peoples’ “usual vocations of hunting, trapping and fishing” throughout the Treaty area.
25. During the negotiation of Treaty 8, the Crown promised to protect the livelihood interests of the Aboriginal signatories. The federal Treaty Commissioners believed that these promises were necessary to induce the Aboriginal peoples to agree to enter into Treaty, stating in their report the following:
Our chief difficulty was the apprehension that the hunting and fishing privileges were to be curtailed. The provision in the treaty under which ammunition and twine is to be furnished went far in the direction of quieting the fears of the Indians, for they admitted that it would be unreasonable to furnish the means of hunting and fishing if laws were to be enacted which would make hunting and fishing so restricted as to render it impossible to make a livelihood by such pursuits. But over and above the provision, we had to solemnly assure them that only such laws as to hunting and fishing as were in the interest of the Indians and were found necessary in order to protect fish and fur-bearing animals would be made, and that they would be as free to hunt and fish after the treaty as they would be if they never entered into it.
We assured them that the treaty would not lead to any forced interference with their mode of life…25
24 Mikisew Cree First Nation v. Canada (Minister of Heritage), 2005 SCC 69 at para. 63 (“Mikisew”); See also paras. 24-27.
25 Report of Commissioners for Treaty No. 8, supra.
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26. In Badger, the Supreme Court of Canada confirmed that the oral promises made by the Treaty Commissioners at the time of treaty are of great significance to the interpretation of the written text of the treaty itself:
The Indian people made their agreements orally and recorded their history orally. Thus, the verbal promises made on behalf of the federal government at the times the treaties were concluded are of great significance in their interpretation. Treaty No. 8 was initially concluded with the Indians at Lesser Slave Lake. The Commissioners then travelled to many other bands in the region and sought their adhesion to the Treaty. Oral promises were made with the Lesser Slave Lake band and with the other Treaty signatories and these promises have been recorded in the Treaty Commissioners' Reports and in contemporary affidavits and diaries of interpreters and other government officials who participated in the negotiations.26
27. Subsequently, courts have continued to interpret historic treaties with the assistance of oral promises made by Treaty Commissioners at the time of Treaty signing, as evidenced in official reports or documented by eye witnesses to Treaty.27
28. Accordingly, although the oral promises were not recorded in writing in the text of the Treaty, they were solemnly made to obtain the agreement of the Aboriginal peoples and, as such, form part of the Treaty. These promises demonstrate the importance that the Aboriginal signatories placed on the harvesting rights provided by the Treaty. These rights are at the very core of Treaty 8.
26 Badger, supra at para. 55.
27 See, for example, Mikisew, supra, where the Supreme Court of Canada relied on the Report of the Commissioners for Treaty No. 8 and Through the Mackenzie Basin: A Narrative of the Athabasca and Peace River Treaty Expedition of 1899, by Charles Mair.
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2.4 More Than a Mere Right to Hunt, Fish and Trap “For Food” 29. Applying the principles of treaty interpretation, the courts have recognized that Treaty 8 harvesting rights are much more than a mere right to hunt or fish “for food”. While the context, text and oral promises determine the general nature and scope of the harvesting rights of all Treaty 8 First Nations, the Treaty also provides protection for important species and other components of harvesting practices traditionally exercised by a given Treaty 8 First Nation within its local hunting and fishing grounds.
30. The courts have held that Treaty 8 protects the following particular aspects of harvesting by Treaty 8 First Nations:
a. Continuity of traditional hunting practices: In Mikisew, the court held that in view of the Crown’s oral promises, Treaty 8 rights protect the continuity of traditional hunting practices: Badger recorded that a large element of the Treaty 8 negotiations were the assurances of continuity in traditional patterns of economic activity. Continuity respects traditional patterns of activity and occupation. The Crown promised that the Indians' rights to hunt, fish and trap would continue “after the treaty as existed before it” (p. 5). This promise is not honoured by dispatching the Mikisew to territories far from their traditional hunting grounds and traplines. ... 28
b. A “meaningful right to hunt” within the First Nation’s local hunting grounds: In Mikisew, the court stated that it was not sufficient to provide merely the opportunity to access game in far off areas of the Treaty territory: The “meaningful right to hunt” is not ascertained on a treaty-wide basis (all 840,000 square kilometres of it) but in relation to the territories over which a First Nation traditionally hunted, fished and trapped, and continues to do so today. If the time comes that in the case of a particular Treaty 8 First Nation “no meaningful right to hunt” remains
28 Mikisew, supra at para. 47.
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over its traditional territories, the significance of the oral promise that “the same means of earning a livelihood would continue after the treaty as existed before it” would clearly be in question, and a potential action for treaty infringement, including the demand for a Sparrow justification, would be a legitimate First Nation response. 29
c. Particular species forming part of the traditional seasonal round: In West Moberly, the majority held that the right to hunt includes protection not only for hunting within a First Nation’s particular hunting grounds, but also for particular species forming part of the traditional seasonal round. West Moberly’s ancestors hunted caribou as an important part of the traditional seasonal round within the area affected by proposed mining exploration. The majority of the BC Court of Appeal concluded that “the petitioner’s Treaty 8 right to hunt includes the right to hunt caribou as part of the seasonal round”: ... while specific species and locations of hunting are not enumerated in Treaty 8, it guarantees a “continuity in traditional patterns of economic activity” and respect for “traditional patterns of activity and occupation”. The focus of the analysis then is those traditional patterns. 30
31. With respect to commercial hunting rights, in R. v. Horseman, the Supreme Court of Canada held that the principal emphasis of Treaty was the protection of traditional modes of life. Moose, caribou, and wood buffalo were killed by Treaty 8 First Nations for food and for trade.31 Unlike the Prairie Provinces, which are subject to the Natural Resources Transfer Agreements, the commercial component of the right (i.e. the right to trade what is harvested) has not been extinguished within British Columbia. Accordingly, adverse impacts on Treaty 8 harvesting rights in British Columbia include adverse impacts on “commercial” Treaty rights to trade in the harvest.
29 Mikisew, supra at para. 48.
30 West Moberly, supra at para. 137.
31 R. v. Horseman, [1990] 1 SCR 901 at 928-929.
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2.5 Rights “Incidental” to the Harvesting Right 32. Further, the harvesting rights protected by Treaty 8 encompass related rights “necessary to [their] meaningful exercise”. The existence of these rights also place obligations on the Crown in relation to wildlife and habitat management: a. An aboriginal right, once established, generally encompasses other rights necessary to its meaningful exercise”;32 b. “Recognizing Aboriginal rights to hunt and trap over an area means wildlife and habitat must be managed to ensure a continuation of those rights”;33 c. the court may expand the scope of a Treaty right beyond that suggested by the Treaty text if it will make “honourable sense” of the Treaty and ensure the First Nation’s continued meaningful exercise of that right;34 d. The exercise of Aboriginal fishing rights is dependent on the continued existence of that resource;35 and e. Treaties protect rights “reasonably incidental” to those rights explicitly set out in the Treaty text, such as the right to construct a cabin in order to carry out hunting rights under Treaty 636 or the right to access waters in which fishing rights under the Douglas Treaty are exercised.37
32 Mitchell v. Minister of National Revenue, 2001 SCC 33 at para. 22.
33 Tsilhqot’in Nation v. British Columbia, 2007 BCSC 1700 at para. 1291 (“Tsilhqot’in”).
34 Marshall, supra at para. 14.
35 R. v. Nikal, [1996] 1 SCR 1013 at para. 94.
36 Sundown, supra at para. 33.
37 Saanichton Marina Ltd. v. Claxton, [1989] 3 C.N.L.R. 46.
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2.6 The Crown’s Right to “Take up” Land 33. The text of Treaty 8 also refers to rights of the Crown to enact conservation- based regulations and to “take up” lands from time to time for certain purposes including settlement, mining, lumbering and trading. Land is considered “taken up” when it is put to a use that is “visibly incompatible” with the exercise of hunting rights.38
34. The Crown’s right to take up land under the Treaty is not absolute. Like the right to hunt, the scope of the Crown’s right to take up land is interpreted in light of the mutual understanding of treaty signatories and the oral promises made by the Crown. It was understood by both the Crown and the Aboriginal signatories that “from time to time”, lands would be “taken up” and “transferred from the inventory of lands over which the First Nations had treaty rights to hunt, fish and trap, and placed in the inventory of lands where they did not.”39
35. However, the parties to the Treaty did not expect that the amount of land to be taken up would affect hunting rights or the First Nations’ traditional means of earning a livelihood. As summarized by the British Columbia Court of Appeal in West Moberly: Just as the right to hunt must be understood as the treaty makers would have understood it, so too must “taking up” and “mining” be understood in the same way. As the Supreme Court of Canada said in Badger at para. 55:
Since the Treaty No. 8 lands were not well suited to agriculture, the government expected little settlement in the area. The Commissioners, cited in Daniel, at p. 81, indicated that “it is safe to say that so long as the fur-bearing animals remain, the great bulk of the Indians will continue to hunt and to trap”. The promise that this livelihood would not
38 Badger, supra at para. 54.
39 Mikisew, supra at para. 30.
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be affected was repeated to all the bands who signed the Treaty. Although it was expected that some white prospectors might stake claims in the north, this was not expected to have an impact on the Indians' hunting rights. For example, one commissioner, cited in René Fumoleau, O.M.I., As Long as this Land Shall Last, at p. 90, stated:
We are just making peace between Whites and Indians -- for them to treat each other well. And we do not want to change your hunting. If Whites should prospect, stake claims, that will not harm anyone. [Emphasis added.]
36. In West Moberly, the majority held that the treaty makers would not have contemplated that “areas of important ungulate habitat” would be destroyed by large-scale mining operations. In effect, the Crown erred by assuming that West Moberly’s Treaty right to hunt was subject, or inferior to, the Crown’s right to take up land. The Crown was wrong to presume that the proposed mining exploration would proceed irrespective of the First Nation’s concerns, as long as a mitigation plan of some sort was put in place.40
37. To properly understand the nature and scope of Treaty 8 harvesting rights, therefore, it must be remembered that these rights are not “trumped” by the Crown’s ability to “take up” lands. “They are competing or conflicting rights.”41
3 ASSESSING IMPACTS WITH REFERENCE TO THE HISTORICAL CONTEXT
38. Impacts on Treaty rights must be assessed in light of the current state of the land on which Treaty rights are exercised. This requires taking into account the “historical context” of the area in question. In West Moberly, the British Columbia Court of Appeal needed to consider whether the trial judge had erred in
40 West Moberly, supra at paras. 149-50.
41 Halfway River First Nation v. British Columbia, 1999 BCCA 470 at para. 134, citing Sundown, supra
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assessing the potential adverse impacts of the mine by considering those impacts within the context of past impacts on the area in question – an area used by the First Nation in the exercise of its Treaty right to hunt caribou as part of the seasonal round. In arguing that the trial judge had erred, the appellant relied on the Supreme Court of Canada’s decision in Rio Tinto.42
39. The majority of the British Columbia Court of Appeal distinguished Rio Tinto and confirmed that it is correct to assess potential impacts of a proposed project in light of current status of the land – in that case, the land had been heavily- impacted by previous activities: I do not understand Rio Tinto to be authority for saying that when the "current decision under consideration" will have an adverse impact on a First Nations right, as in this case, that what has gone before is irrelevant. Here, the exploration and sampling projects will have an adverse impact on the petitioners' treaty right, and the historical context is essential to a proper understanding of the seriousness of the potential impacts on the petitioners' treaty right to hunt.
The amended permits authorized activity in an area of fragile caribou habitat. Caribou have been an important part of the petitioners' ancestors' way of life and cultural identity, and the petitioners' people would like to preserve them. There remain only 11 animals in the Burnt Pine herd, but experts consider there to be at least the possibility of the herd's restoration and rehabilitation. The petitioners' people have done what they could on their own to preserve the herd, by banning their people from hunting caribou for the last 40 years.
To take those matters into consideration as within the scope of the duty to consult, is not to attempt the redress of past wrongs. Rather, it is simply to recognize an existing state of affairs, and to address the consequences of what may result from pursuit of the exploration programs.43
40. Of course, there are many other considerations that will go into assessing the significance of the Project’s potential impacts on Treaty 8 rights. However, the
42 Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43 (“Rio Tinto”).
43 West Moberly, supra at paras. 117-119.
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T8FNs note that one of the crucial elements of this assessment is to view potential adverse impacts taking into account the historical context. The Project, if it proceeds, will not take place in a vacuum: the land and resources on which the Treaty 8 harvesting rights depend have been impacted by past activities, including two hydroelectric dams previously constructed on the Peace River. The current state of the land and the waters, including the Peace River, must be considered to obtain an accurate picture of the potential adverse impacts on rights guaranteed by Treaty 8.
41. The existing state of affairs was a significant consideration for the British Columbia Utilities Commission in its decision in In the Matter of British Columbia Hydro and Power Authority Certificate of Public Convenience and Necessity for the Dawson Creek/Chetwynd Area Transmission Project. In that case, BC Hydro’s application for a certificate of public convenience and necessity was denied pending further consultation between BC Hydro and West Moberly First Nations, including considering the new adverse impacts of the Project “with an adequate cumulative impact perspective.”44
4 THE GOAL OF RECONCILIATION
42. Reconciliation is the guiding principle in Aboriginal law and it is necessary to maintain the honour of the Crown. As Binnie J. stated in Mikisew:
The fundamental objective of the modern law of aboriginal and treaty rights is the reconciliation of aboriginal peoples and non-aboriginal peoples and their respective claims, interests and ambitions. The management of these relationships takes place in the shadow of a long history of grievances and misunderstanding. The multitude of smaller grievances created by the indifference of some government officials to aboriginal
44 Order No. C-5-13, April 25, 2013, p. 169.
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people's concerns, and the lack of respect inherent in that indifference has been as destructive of the process of reconciliation as some of the larger and more explosive controversies.45
43. The principle of reconciliation stems from the need to reconcile the prior occupation of the land by Aboriginal peoples with the Crown’s assertion of sovereignty over that land. As McLachlin C.J.C. explained in Haida:
The jurisprudence of this Court supports the view that the duty to consult and accommodate is part of a process of fair dealing and reconciliation that begins with the assertion of sovereignty and continues beyond formal claims resolution. Reconciliation is not a final legal remedy in the usual sense. Rather it is a process flowing from rights guaranteed by s. 35(1) of the Constitution Act, 1982. This process of reconciliation flows from the Crown's duty of honourable dealing toward Aboriginal peoples, which arises in turn from the Crown's assertion of sovereignty over an Aboriginal people and de facto control of land and resources that were formerly in the control of that people. As stated in Mitchell v. M.N.R., [2001] 1 S.C.R. 911, 2001 SCC 33, at para. 9, "[w]ith this assertion [sovereignty] arose an obligation to treat aboriginal peoples fairly and honourably, and to protect them from exploitation" (emphasis added).46
44. As noted by Vickers J. in Tsilhqot’in, the principle of reconciliation has evolved from the idea that the interests of Aboriginal peoples and the Crown should be balanced against each other to the modern conception of respecting Aboriginal rights in order to truly reconcile these rights, rather than to allow them to be trumped by Crown interests.47
45. Professor John Borrows suggests that past approaches to reconciliation have often “asked much more of Aboriginal Peoples than … Canadians.” He emphasizes that reconciliation “should not be a front for assimilation.
45 Mikisew, supra at para. 1.
46 Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73 at para. 32 (“Haida”).
47 Tsilhqot’in, supra at para. 1343-1356.
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Reconciliation should be embraced as an approach to Aboriginal-Canadian relations that also requires Canada to accede in many areas.”48
46. Reconciliation is also the objective of the Crown’s duty to consult Aboriginal peoples before taking actions that have the potential to adversely affect Aboriginal and Treaty rights. As noted by the Supreme Court of Canada in Haida when describing the scope of the duty to consult, “[t]he 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.”49 Haida also confirms that meaningful consultation may require accommodation, which requires the Crown “to make changes to its proposed action based on information obtained through consultations.”50
5 CONCLUSION: THE PANEL’S TASK – RECONCILIATION IN PRACTICE
47. The Panel’s ultimate task is to determine the significance of the environmental effects of the Project, including the effects on the T8FNs, their physical and cultural heritage, current use of lands and resources for traditional purposes and on structures, sites and things that are of historical, archaeological, paleontological or architectural significance. In effect, the Panel is called upon to play an important role in the process of reconciling the rights, claims and interests of the T8FN with those of the Crown; it must provide recommendations that allow the federal and provincial governments to maintain the honour of the
48 John Borrows, “Domesticating Doctrines: Aboriginal Peoples after the Royal Commission” (2001) 46 McGill L.J. 615 (QL) as quoted by Vickers J. in Tsilhqot’in at para. 1342 [emphasis added].
49 Haida, supra at para. 45.
50 Haida, supra at para. 46.
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Crown and promote reconciliation between Aboriginal interests and Non- Aboriginal or Crown interests.
48. The conclusions made by the Panel with respect to the significance of these effects will be submitted to the federal and provincial Ministers of the Environment. These conclusions will inform the decisions which will be made by the two levels of governments – decisions that must maintain the honour of the Crown and promote reconciliation between Aboriginal peoples and non- Aboriginal peoples.
49. The Panel’s contribution to the important objective of reconciliation will require an understanding of the perspective of the T8FNs with respect to their Treaty rights and how the Peace River Valley supports the meaningful exercise of those rights. It will require the acknowledgment of the existence a world-view that is based upon an intimate connection to the land and its waters; a world-view that found protection in a Treaty relationship that remains as significant today as it was 114 years ago when it was first entered into.
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SITE C CLEAN ENERGY PROJECT Panel Hearing Submission November 25, 2013
Meaningful Resource Management for the Treaty 8 First Nations
Treaty 8 Tribal Association on behalf of the Treaty 8 First Nations
© 2013 Treaty 8 Tribal Association
Table of Contents 1. Introduction ...... 4 2. Legal Overview ...... 4 3. The Collaborative Management Agreements ...... 5
3.1 Economic Benefits Agreement ...... 5 3.2 Government to Government Protocol Agreement ...... 7 3.3 Strategic Land and Resource Planning Agreement ...... 8 3.4 Wildlife Collaborative Management Agreement ...... 9 3.5 Collaborative Management Agreement for Provincial Parks ...... 11 3.6 Forests and Range Resource Management Agreement ...... 13 3.7 Crown Land Management Agreement ...... 14 4. The Site C Process ...... 15
4.1 The Nature and Scope of the Rights ...... 15 4.2 The Scope of the Duty of Consultation ...... 16 4.3 The Implication for the Joint Review Panel ...... 18
3
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MEANINGFUL RESOURCE MANAGEMENT
1. INTRODUCTION
Treaty No. 8 did not simply provide its signatories with the right to shoot a bow, dip a net in the Peace River or set a trap. In addition to the guarantee of the substantive rights to hunt, fish and trap, the treaty provides the Nations with the right to have a meaningful say in the management of the lands and resources within Treaty 8 territory. This theory is consistent with the case law around Aboriginal and Treaty rights, the cases specific to Treaty No. 8 and the actions of the Province of British Columbia in engaging with the Treaty 8 Nations.
The Province of British Columbia has recognized these Treaty 8 governance - management rights by negotiating with the Treaty 8 First Nations a series of Collaborative Management Agreements (“CMAs”), which as their name suggests, provide for a meaningful role for the Treaty 8 Nations in the collaborative management of the resources in their territory. These agreements were entered into in the spirit of shared decision-making. Finally, the Province of British Columbia and the Treaty 8 First Nations are parties to a Government-to-Government Agreement, which provides for Treaty 8 leaders to engage directly with Senior Officials and Ministers. The proposed Site C Project and the processes that have been engaged run counter to the case law and the new relationship between British Columbia and the Treaty 8 Nations embodied in the CMAs.
2. LEGAL OVERVIEW
Section 35 of the Constitution Act, 1982 provides that:
35. (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.
The Sparrow case was the first case to consider the application of section 35 of the Constitution Act, 1982.1 Sparrow recognized that the Section 35 right to fish is broader than simply a right to dip a net in the water or a right to harvest. The rights are sui generis, and include rights incidental to a core harvesting right.2 These incidental rights reflect the principle that the existence of these rights is about preserving a way of life and that there is little point of that if the rights cannot be exercised because the resource cannot be accessed, the resource has been made extinct or the habitat upon which the resource relies has been destroyed or compromised.
In Washington State there has been a great deal of litigation surrounding the Stevens Treaties of 1850. Judge Orrick held that the Treaties also entailed, inter alia, the right
1 R. v. Sparrow, [1990] 1 S.C.R. 1075 (“Sparrow”) 2 See Also Mitchell v. Canada (Minister of National Revenue – M.N.R.), 2001 SCC 33, [2001] 1 S.C.R. 911 , para. 22 4
© 2013 Treaty 8 Tribal Association to protection for the habitat necessary to sustain the salmon runs, stating that “[t]he most fundamental prerequisite to exercising the right to take fish is the existence of fish to be taken.” After noting the dramatic decline in salmon and suitable habitat, he observed, “[w]ere this trend to continue, the right to take fish would eventually be reduced to the right to dip one's net into the water... and bring it out empty.”3
Two British Columbia Court of Appeal decisions apply this principle.
In Claxton, the court held that the Douglas Treaty right to ‘fish as formerly’ implied a right to access their traditional fishing grounds and a right not to have their fishing grounds destroyed.4 Similarly, in West Moberly, the court held that the treaty right to hunt promised in Treaty No. 8 implied an incidental right to have the habitat necessary to support the caribou species traditionally harvested by First Nations. In addition, the court implicitly recognized the First Nations’ role in the management of the resource, as the First Nation had imposed its own moratorium on hunting caribou.5 Thus, when considering the scope of a treaty right, it is important to recognize that it extends beyond a right to harvest simpliciter.
3. THE COLLABORATIVE MANAGEMENT AGREEMENTS
After several years of negotiation, British Columbia and the Doig River, Prophet River, West Moberly and Fort Nelson First Nations entered into an Economic Benefits Agreement (the “EBA”) and a number of Collaborative Management Agreements (the “CMAs”).6 In addition, the parties entered into a Government to Government Protocol Agreement, which set out processes to foster a collaborative government to government relationship with respect to resource management in Treaty 8 territory. In May 2010 several other CMAs were entered into between the parties, culminating in a Final Agreement. Halfway River First Nation is currently engaged with British Columbia in negotiations on a Government to Government Agreement. Below is a summary of the agreements that are relevant in the context of the proposed Site C Project. 7
3.1 Economic Benefits Agreement The EBA is a 15 year agreement that contains two main components: 1) economic benefits; and 2) collaborative management agreements. The EBA provides for two types of payments: 1) equity payments, totaling $17,310,000; and 2) annual payments ranging from $2,571,435 to $10,015,000 for the term of the Agreement.
The EBA contemplated nine potential collaborative management agreements as well as a Final Agreement. A minimum of eight collaborative management agreements were
3 United States v. Washington, 506 F. Supp. 187, 1980 U.S. Dist. Lexis 17152 (W.D. Wash. 1980) at *203 (“Orrick Decision”) 4 Claxton v. Saanichton Marina, [1989] 5 W.W.R. 82 (B.C.C.A.) 5 West Moberly First Nations v. British Columbia (Chief Inspector of Mines) 2011 BCCA 247 at para. 118. 6 Fort Nelson withdrew from the EBA in April, 2009, but subsequently signed its own EBA. 7 The EBA and CMAs can be accessed at: http://www.gov.bc.ca/arr/treaty/key/treaty_8.html. Several other examples of shared decision-making agreements are also on this site. 5
© 2013 Treaty 8 Tribal Association required in order for the First Nation to receive and retain the equity payments. These agreements set out, among other things, sector-specific consultation processes. Each of these agreements is detailed below.
For those sectors that do not have a collaborative management agreement, the EBA contains a default consultation process. For example, there is no mining agreement pursuant to the EBA. Section 4.2 of the EBA provides:
4.2 In the absence of a consultation and accommodation process provided for in a Completed Agreement, consultation and accommodation will be conducted in accordance with the following process:
(a) British Columbia will provide to a potentially affected Treaty 8 First Nation advance written notification of a proposed provincial Crown authorized activity that may adversely affect any of the rights recognized and affirmed by section 35(1) of the Constitution Act, 1982, together with all relevant information about the proposed activity;
(b) British Columbia will provide a reasonable period of time for the Treaty 8 First Nation to prepare its view on the proposed provincial Crown authorized activity;
(c) British Columbia will provide a reasonable opportunity for a potentially affected Treaty 8 First Nation to present its views as to potential adverse impacts on the exercise of any of its rights recognized and affirmed by section 35(1) of the Constitution Act, 1982, together with any suggestions as to how any such impact may be avoided, mitigated, minimized or otherwise accommodated (other than by compensation), and British Columbia will provide a reasonable opportunity to discuss the views and attempt to resolve any concerns;
(d) British Columbia will undertake a full and fair consideration of any views presented by a potentially affected Treaty 8 First Nation;
(e) In the absence of a presentation of views by a Treaty 8 First Nation within a reasonable period of time, British Columbia will undertake a full and fair consideration of all relevant information available to the provincial Crown authority respecting how to avoid, mitigate, minimize or otherwise accommodate (other than by compensation) any potential adverse impacts on the exercise of any of its rights recognized and affirmed by section 35(1) of the Constitution Act, 1982, the provincial Crown authority having taken reasonable steps to inform itself of any such adverse impacts on such rights; and
(f) British Columbia will provide, in writing where appropriate, to a potentially affected Treaty 8 First Nation notification of the decision taken and how the views presented by the potentially affected Treaty 8 First Nation were taken into account.
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The Treaty 8 First Nations have invoked the default consultation process above on several occasions. In the view of the Treaty 8 First Nations, British Columbia has not been following this consultation process in good faith, particularly in the mining sector. As a result of the failure to follow the process and the common law in approving a bulk sample permit, the West Moberly First Nations successfully launched a judicial review in British Columbia Supreme Court. British Columbia unsuccessfully appealed the matter to the British Columbia Court of Appeal. The Court of Appeal held that the Province had failed to consult and accommodate the First Nation in approving a bulk sample permit for a coal mine in an area of critical caribou habitat.8
3.2 Government to Government Protocol Agreement
The Government to Government Protocol Agreement (the “G2G”) is intended to provide a framework for the Treaty 8 First Nations and British Columbia to establish various a government to government bodies to improve communications on matters related to legislation, policies, programs and activities that may have an impact on the exercise of Treaty 8 rights. The other goal of the G2G is to further reconciliation between British Columbia and the Treaty 8 First Nations.
Structure of Consultation Process
The G2G sets up three consultative bodies: 1) Chiefs’ and Minister’s Forum; 2) Senior Officials; and 3) Treaty 8 – Northeast Managers Committee.
Treaty 8 – Northeast Managers Committee
The Treaty 8 – Northeast Managers Committee meets three times per year. It is made up of representatives of Treaty 8 First Nations and regional managers in Northeastern British Columbia. The Treaty 8 - Northeast Managers Committee is the initial point of contact for the parties. It is intended to provide a forum to enable the parties to:
a. Improve communications and information exchange with respect to resource management;
b. Review progress on the negotiation and implementation of the CMAs;
c. Raise issues and attempt to resolve issues within the authority of the regional managers;
d. Identify short and long term initiatives and priorities;
e. Identify areas of potential conflict and mechanisms for resolution; and
8 West Moberly First Nations v. British Columbia (Chief Inspector of Mines), 2011 BCCA 247 (“West Moberly”)
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f. Identify matters for referral to the Chiefs’ and Minister’s Forum.
If the Parties are unable to resolve issues at Treaty 8 – Northeast Managers Committee those issues may be identified for discussion at the Senior Officials or Chiefs’ to Minister’s Forum.
Senior Officials
The Senior Officials meet at least once per year. The Senior Officials is made up of the Deputy Minister or Assistant Deputy Ministers of Aboriginal Relations and Reconciliation and Treaty 8 senior officials. The Senior Officials may address any unresolved issues referred to it by the Treaty 8 – Northeast Managers Committee.
Chiefs’ and Minister’s Forum
The Chiefs’ and Minister’s Forum meets at least once per year. The three EBA Chiefs and the Minister of Aboriginal Relations and Reconciliation as well as other Ministers responsible for resource management may participate in the forum. The purpose of the Chiefs’ and Minister’s Forum is to:
a. Review progress on the negotiation and implementation of the CMAs;
b. Address issues referred from the Treaty 8 – Northeast Managers Committee and any other issues by mutual agreement;
c. Discuss relevant legislative and regulatory reform; and
d. Discuss concerns raised by Treaty 8 First Nations with respect to resource management in the Treaty 8 area, including cumulative effects.
The outcomes of the discussions at the Chiefs’ and Minister’s Forum are to be forwarded to the relevant ministry for consideration and action.
3.3 Strategic Land and Resource Planning Agreement
The Strategic Land and Resource Planning Agreement (the “SLRP Agreement”) is intended to provide a process for British Columbia and the Treaty 8 First Nations to jointly develop planning priorities and strategic land and resource plans. The SLRP Agreement applies to any strategic land and resource planning (eg. land and resource management plans and sub-regional plans) commenced at the direction of the Minister within the Agreement Area.
Structure of Consultation Process
The Treaty 8 – Northeast Managers Committee is responsible for undertaking the prioritization and facilitation of any joint strategic land and resource planning. It is the
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© 2013 Treaty 8 Tribal Association responsibility of the Treaty 8 – Northeast Managers Committee to secure adequate resources to undertake the work in the SLRP Agreement. There is a commitment to a minimum of four meetings in the first year of the agreement and at least two meetings per year thereafter. A sub-committee may be struck to carry out this work. There are a number of obligations placed on the Treaty 8 – Northeast Managers Committee, including, among other things:
a. Developing planning project inventories, reviewing proposed business cases for joint strategic land and resource planning and making recommendations to the parties;
b. Exploring opportunities for funding for planning processes;
c. Ensuring consideration of Treaty 8 rights in land use planning;
d. Ensuring participation of Treaty 8 First Nations and consideration of their values;
e. Fostering a collaborative working relationship;
f. Strengthening and developing mechanisms for communications and information exchange;
g. Identifying Treaty 8 contract opportunities;
h. Identifying and developing opportunities for training and education;
i. Reviewing and recommending for approval and draft land use plans.
As a planning priority, the Treaty 8 – Northeast Managers Committee is to consider and design appropriate designations and mechanisms to protect significant areas of the Treaty 8 First Nations for exercise of their treaty rights.
To date, the parties have yet to engage in any joint strategic land and resource planning. Significant areas have not been identified or set aside. The Treaty 8 – Northeast Managers Committee has been tasked to being discussions on the implementation of the SLRP Agreement.
3.4 Wildlife Collaborative Management Agreement
The Wildlife Collaborative Management Agreement (the “Wildlife Agreement”) sets out a collaborative relationship for wildlife management within the Agreement Area. Only Region 7B Peace is part of the Agreement Area, a lesser area than the Treaty 8 territory. There are a number of areas covered by the Wildlife Agreement, including high-level strategic discussions, consultation processes, as well as a training, employment and conservation officer pilot project.
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The Wildlife Agreement establishes the Treaty 8 – British Columbia Wildlife Stewardship Board (the “Board”), which is a key component of the agreement. The Board is made up of two representatives from British Columbia and two representatives from Treaty 8 First Nations.
Structure of Consultation Processes
While the bulk of the Board’s work is focused on consultation around government decisions on wildlife and wildlife management, the agreement does not limit it to such matters. Section 4.7 of the Wildlife Agreement provides:
4.7 The Board will consider and make recommendations on topics including, but not limited to, the following:
a. Wildlife management decisions that may adversely affect Treaty 8 First Nations’ rights recognized and affirmed by section 35(1) of the Constitution Act, 1982;
b. information that may be considered sensitive by Treaty 8 First Nations, such as site-specific or harvest data;
c. species at risk research, inventory, critical habitat protection and recovery planning, including engagement with the Government of Canada and other parties, as may be appropriate;
d. resolution of areas of disagreement between Treaty 8 First Nations and the recommendations of any Public Wildlife Advisory Processes;
e. development of Collaborative Management approaches including joint planning, shared stewardship initiatives, data collection and inventory, monitoring and compliance; and
f. any other activities or initiatives that may contribute to enhanced collaboration between the Parties with respect to Wildlife management, in addition to the implementation of this CMA.
4.8 In undertaking its tasks and implementing this CMA, the Board will make best efforts to reach a consensus in its operations and recommendations.
For the purposes of consultation, the Parties have agreed to divide the various statutory decisions under the Wildlife Act and its regulations into four priority levels. The parties have agreed under a matrix that acts as a screening tool for determining the level of consultation that may be required from notice at level 4 to deep consultation for a level 1 decision. The majority of decisions made under the Wildlife Act fall under either a level 3 or level 4 priority.
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The Board’s role is significant under the Wildlife Agreement. It acts as both a gate- keeper and a clearinghouse for proposed statutory decisions. Section 8.4 sets out the various levels:
8.4 If the Minister is informed by the Board that a decision or activity has been identified by the Board as a: a. 1st or 2nd Level of Priority, the Ministry of Environment staff will consult with respect to a decision or activity that may adversely affect Treaty 8 First Nations’ rights recognized and affirmed by section 35(1) of the Constitution Act, 1982 and, as appropriate, accommodate the right;
b. 3rd Level of Priority, Ministry of Environment staff will provide written notice to the Board and the Board will discuss the proposed decision or activity at a subsequent Board meeting, or as otherwise agreed; and
c. 4th Level of Priority, Ministry of Environment staff will provide written notice to the Board and upon the request of a Board member will discuss the proposed decision or activity at a subsequent Board meeting.
Section 8.5 of the Wildlife Agreement provides that any Board member may require a higher level of priority be assigned to a particular decision or activity. With the exception of Level 4 decisions, all decisions must be streamed through the Board prior to being forwarded to the statutory decision-maker.
For Level 1 and 2 priority decisions, the Board is responsible for reviewing the initial referral package and designing and facilitating the consultation process with the Treaty 8 First Nations. In addition, the parties are to make best efforts to reach consensus recommendations to the decision-maker.
There is also a public wildlife advisory process contemplated in the agreement. However, this process is not considered to be consultation unless the parties agree.
3.5 Collaborative Management Agreement for Provincial Parks The purpose of the Collaborative Management Agreement for Provincial Parks (the “Parks Agreement”) is to provide for shared decision-making for the planning, management or operation of various Provincial Parks listed in the agreement. The primary component of the Parks Agreement is a consultation and collaborative management process.
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Structure of Consultation Process
The Parks Agreement is similar to the Wildlife Agreement. The Treaty 8 – British Columbia Parks Management Board (the “Board”) is established to make recommendations to the parties regarding the planning and management of Provincial Parks. The Board consists of two British Columbia representatives and two Treaty 8 representatives.
Section 6.6 of the Parks Agreement sets out the Board’s tasks:
a. completing a matrix to identify the priority recommended by the Board for each type of decision or activity;
b. making recommendations regarding priorities for decisions or activities in Provincial Parks;
c. guiding and reviewing management planning processes and documents;
d. providing information to the statutory decision-maker regarding potential infringements to Treaty 8 rights and recommending mitigation and accommodation measures for park management, planning, operational and permitting decisions;
e. ensuring appropriate consultation processes are in place;
f. establishing priorities for conducting inventories or scientific studies in Provincial Parks;
g. making recommendations to the Minister relating to adding or deleting areas to a Provincial Park or creating new parks;
h. identifying and developing economic opportunities associated with Provincial Parks;
i. identifying and developing opportunities for education and training of Treaty 8 members;
j. providing input on operations and permitting issues;
k. recommending changes to provincial policy, statute or regulations that may affect Treaty 8 rights.
In the context of consultation, the Parks Agreement contains a similar process to the Wildlife Agreement. Section 6.9 provides:
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6.9 The Parties agree that if the Minister is informed by the Board that a decision or activity has been identified by the Board as a:
a. 1st or 2nd Level of Priority, Ministry of Environment staff will consult with respect to a decision or activity that may adversely affect Treaty 8 First Nations’ rights recognized and affirmed by section 35(1) of the Constitution Act, 1982 and, as appropriate, accommodate those rights;
b. 3rd Level of Priority, Ministry of Environment staff will provide written notice to the Board and provincial Board members will discuss the proposed decision or activity at a subsequent Board meeting; and
c. 4th Level of Priority, Ministry of Environment staff will provide written notice only to the Board but, upon the request of the Board, will discuss the proposed decision or activity at a subsequent Board meeting.
The Treaty 8 representatives on the Board are responsible for notifying and facilitating the presentation of information to the Treaty 8 First Nation communities. However, for Level 1 and Level 2 priorities, Ministry of Environment staff remain responsible for community consultation. The Board is to make best efforts to reach consensus on any recommendations to the Minister.
3.6 Forests and Range Resource Management Agreement
The Forests and Range Resource Management Agreement (the “Forestry Agreement”) sets out a collaborative arrangement for forest and range management and planning. In addition to detailed consultation procedures, the agreement contemplates potential training and employment opportunities for Treaty 8 members, as well as tenure opportunities being made available to Treaty 8 First Nations.
Structure of Consultation Processes
The Forestry Agreement has a unique approach to consultation. The agreement distinguishes between operational and administrative decisions under various pieces of forestry legislation. The Forestry Agreement provides for the Forests and Range Resource Management Board (the “Board”), consisting of six members, with one representative from each of the Treaty 8 communities and three members from the Ministry of Forests, Lands and Natural Resource Operations (“FLNRO”). The Board acts as the principal forum on matters of forests and range management and planning, effectively administrative decisions. Contemplated operational decisions are not dealt with by the Board. Instead FLNRO consults directly with the Treaty 8 First Nations.
The Forestry Agreement also has a matrix which contemplates four levels of priority decisions with Level 1 being the lowest level and level four contemplating the highest
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© 2013 Treaty 8 Tribal Association level or deepest level of consultation. In a level 1 consultation, FLNRO simply gives notice of a decision with no expectation that a response will be given. Level 2 consultation is for expedited consultation where FLNRO provides the First Nation or the Board with justification for the urgency or threat. Levels 3 and 4 provide much more robust consultation procedures, including an initial impact review (also known as a preliminary assessment) and provision of a consultation summary prior to a recommendation being forwarded to the statutory decision-maker. The goal throughout the consultation processes is to forward joint recommendations to the statutory decision-maker.
3.7 Crown Land Management Agreement
The Crown Land Management Agreement (the “Crown Lands Agreement”) is intended to cover all decisions made pursuant to the Land Act. The Crown Lands Agreement addresses both operational decisions as well as higher-level strategic decisions in the management of Crown Lands.
Structure of Consultation Processes
The Crown Lands Agreement sets up two forums for dealing with consultation, the Crown Lands Management Board (the “Board”) and the Crown Lands Application Technical Team (the “CLATT”). The Board is intended to address the higher level systemic issues that may occur in Crown Land management. The CLATT is intended to address the various day to day decisions that the Crown makes pursuant to the Land Act.
The Crown Lands Agreement contemplates two types of consultation, basic and substantial. In addition, the parties have agreed that some consultation will only attract notice. The initial screening of an application is done in accordance with a matrix that the parties have agreed to.
Basic consultation is generally completed at the CLATT level. However, the Treaty 8 First Nations are provided with the opportunity to respond to a CLATT recommendation prior to a decision being rendered. They may also request that the proposed decision be streamed as substantial consultation.
Substantial consultation takes place directly between the Crown and the Treaty 8 First Nations. One of the important aspects of such consultation is the requirement for the Crown and Treaty 8 First Nations to jointly develop a consultation plan. Issues that may arise during such consultation may be referred to the Board or to CLATT. Prior to any application being forwarded to the statutory decision-maker, the Treaty 8 First Nations are provided with a consultation summary report and given the opportunity to provide comments on the report. If there remains disagreement, the statutory decision-maker must provide a rationale for the decision to the Treaty 8 First Nation(s).
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4. THE SITE C PROCESS
In contrast the common law and the CMAs, the Site C review process has not been conducted in a spirit of shared decision-making. Rather than engaging the Treaty 8 First Nations in the design of the proposed Project and consideration of alternatives, British Columbia and BC Hydro’s position as an agent of the Crown is based on an outdated conception around the role of the Treaty 8 First Nations in the review of these types of projects.
4.1 The Nature and Scope of the Rights
Finch, C.J. of the British Columbia Court of Appeal in the West Moberly case explained the proper approach when balancing the treaty right with the Crown’s “taking up” right:
Just as the right to hunt must be understood as the treaty makers would have understood it, so too must taking up and mining be understood in the same way… Effectively, MEMPR regarded the petitioner’s Treaty 8 right to hunt as subject to, or inferior to, the Crown’s right to take up land for mining or other purposes. There are at least two problems with this approach. First it is inconsistent with what First Nations peoples were told when the Treaty was signed or adhered to. They were given to understand that they would be as free to make their livelihood by hunting and fishing after the Treaty as before, and that the Treaty would not lead to “forced interference with their mode of life”. Second, the concept of mining, as understood by the treaty makers would never have included the possibility that areas of important ungulate habitat would be destroyed by road building, excavations, trenching, the transport of heavy equipment and excavated materials, and the installation of an “Addcar system.”9
The same reasoning would apply to the damming of the Peace River. It could not have been in the contemplation of the parties that the Crown would proceed to construct two (with a third proposed) dam on the Peace River in the heart of Treaty 8 territory, thereby extirpating and poisoning Treaty fisheries, wiping out trap-lines and cultural sites and cutting off traditional migration routes for wildlife.
In contrast, the approach of BC Hydro to Treaty No. 8 is telling. In its Discussion Paper, BC Hydro opines:
The language of the Treaty is clear that the rights to hunt, trap and fish (and any incidental rights) are limited by the Crown’s right to take up land. Where the taking up does not result in no meaningful right to hunt, fish or trap with (sic) the First Nation’s traditional territory, the Crown’s actions do not require justification under the test set out in Sparrow, but instead will trigger the procedural right of consultation.10
The Treaty 8 Nations object to this mischaracterization of the nature and scope of their treaty rights, namely that they provide more than simply procedural rights. By not
9 West Moberly at paras. 134 and 150 10 BC Hydro Discussion Paper at para. 23. 15
© 2013 Treaty 8 Tribal Association understanding the nature and scope of such treaty rights, such an error would be an error of law as identified by Finch, C.J. in the West Moberly case.11
4.2 The Scope of the Duty of Consultation
While there is no dispute that the duty of consultation has been triggered, the Crown’s approach to consultation has been inadequate. The scope and content of the duty to consult and accommodate is variable. In Haida Nation, the Supreme Court of Canada articulated the following framework:
In general terms, however, it may be asserted that the scope of the duty is proportionate to a preliminary assessment of the strength of the case supporting the existence of the right or title, and to the seriousness of the potentially adverse effect upon the right or title claimed.12
The Mikisew case confirmed that that the same approach to consultation applies to treaties:
In the case of a treaty the Crown, as a party will always have notice of its contents. The question in each case will therefore be to determine the degree to which conduct contemplated by the Crown would adversely affect those rights so as to trigger the duty to consult....The flexibility lies not in the trigger (“might adversely affect it”) but in the variable content of the duty once triggered.13
Thus, in terms of the Crown’s preliminary assessment in the context of Treaty No. 8, the question to be answered is the “seriousness of the impact”. The more serious the impact on the rights, the deeper the consultation, and the need for accommodation However, it seems obvious that the Crown cannot draw any conclusion on the seriousness of the impacts on the rights of the Treaty 8 Nations when it has not accurately understood the nature and the scope of such rights.
The Crown agencies claim that they have engaged in “deep consultation” with the Treaty 8 Nations. In Haida Nation, the Supreme Court of Canada explained the concept of deep consultation:
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
11 West Moberly at para. 151 12 Haida Nation v. British Columbia (Minister of Forests), 2004 SCC at para. 39 (“Haida Nation”) 13 Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69 at para. 34 (“Mikisew”) 16
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that Aboriginal concerns were considered and to reveal the impact they had on the decision.14 (emphasis added)
The Treaty 8 Nations submit that the consultation to date has not met this standard. Rather than develop a “shared decision-making” model like those detailed above or a process that meets the legal requirements for deep consultation, a Working Group has been tasked with carrying out consultation. Instead of being a “two-way street” the consultation in the Working Group process has not allowed for a meaningful exchange of dialogue between the Proponent and the participants. In contrast, it has been a soapbox for the Proponent to extol the purported virtues of their proposed Project.
On October 3, 2013, the Canadian Environmental Assessment Agency provided its revised preliminary assessment of impacts on the Treaty 8 Nations. While they wrote separately to each of the Nations, the assessment for each is virtually identical. In reference to West Moberly First Nations (“WMFN”), they state:
The traditional territory of the WMFN is located with the area of the Project where the proponent has predicted in the EIS that adverse effects from the Project will likely occur. The proponent predicts a permanent loss of and access to certain culturally and spiritually important places most notably at Bear Flats, Farrell Creek and Attachie.
During the construction and operation of the Project, WMFN will likely experience reduced access to several highly value locations used for fishing and harvesting of targeted species. Additionally, the hunting and trapping opportunities and practices of WMFN may be adversely affected due to temporary reductions in availability of targeted species and temporarily reduced access to hunting areas during construction. Similarly, WMFN traditional territory falls within the boundary for which the proponent predicts changes could occur as a result of the Project to water quality, sediment loading, thermal and ice regime, vegetation, wildlife and fish habitat. As such, the proponent predicts that the current use of WMFN’s traditional territory will be affected by the Project’s activities. The proponent also concludes that there may be impacts from the Project on WMFN’s exercise of Treaty 8 rights.
The Crown will rely on information gathered throughout the Joint Review Panel process to determine whether, where and to what extent the Project has the potential to impact WMFN’s exercise of Treaty 8 rights.15
On the eve of the Joint Review Panel hearings, the Crown has still not conducted a proper preliminary assessment. What is missing from the analysis is the seriousness of the impacts. The Treaty 8 Nations have provided massive amounts of information to both the Proponent and the Crown regarding their views on the seriousness of the impacts to their existing rights. Such information has yet to be incorporated into the Crown’s assessment. This failure on the part of the Crown has significant implications for both the adequacy of the consultation undertaken to date, as well as any consultation that may take place in the future.
14 Haida Nation at para. 44. 15 Letter from Ross Neil (CEAA) to Chief Roland Willson dated October 3, 2013 17
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4.3 The Implication for the Joint Review Panel
The Terms of Reference for the Joint Review Panel provide that the Panel will not make any conclusions or recommendations as to, among other things: a) the nature and scope of asserted Aboriginal rights or the strength of those asserted rights; b) the scope of the Crown’s duty to consult; c) whether the Crown has met its duty of consultation or accommodated First Nations’ rights; or d) whether the project is an infringement of Treaty No.8. However, section 2.3 provides:
2.3 The Joint Review Panel will receive:
• information regarding the manner in which the Project may adversely affect asserted or established Aboriginal rights and treaty rights;
• information provided by Aboriginal persons or groups regarding the location, extent and exercise of asserted or established Aboriginal rights and treaty rights that may be affected by the Project; and
• information regarding any measures to avoid or mitigate potential adverse effects of the Project on asserted or established Aboriginal rights and treaty rights.
Section 2.4 of the Terms of Reference directs the Panel to: “a) make recommendations, which if implemented, would avoid or minimize potential adverse effects of the Project on asserted or established Aboriginal rights and treaty rights; and b) inform its assessment of the potential environmental, economic, social, health and heritage effects of the Project.
While the Panel cannot make any conclusions or recommendations regarding the nature and scope of Treaty 8 rights, they still must be considered in the Panel Report. Assessment about anticipated impacts can only be as credible as the information on which those assessments are based. The differing perspectives of the Crown agencies and the Proponent on the nature and scope of Treaty 8 have significant implications on the work of the Panel:
These differences in perspective influence:
o the perceived manner in which the Project may adversely affect asserted or established Aboriginal rights and Treaty rights; (JRPA ToR 2.3 first bullet)
o the nature and scope of information considered relevant to the location, extent and exercise of asserted or established Aboriginal rights and treaty rights that may be affected by the proposed Project; (JRPA ToR 2.3 second bullet)
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o the nature and scope of information considered relevant to any measures to avoid or mitigate potential adverse effects of the Project on asserted or established Aboriginal rights and Treaty rights; (JRPA ToR 2.3 third bullet)
o the nature and scope of recommendations made by the JRP which, if implemented, would avoid or minimize potential adverse effects of the Project on asserted or established Aboriginal rights and Treaty rights; (JRPA ToR 2.4a))
The Treaty 8 Nations submit that:
o as signatories to Treaty 8, the T8FNs and the Crown agreed to engage in a process of shared decision-making as a means of rights implementation;
o the proposed Project requires deep consultation and such consultation leads to a shared decision-making process;
o the examples set out above, though they could be improved, reflect a desire on the part of the Treaty 8 First Nations and the Crown to engage in a process of shared decision-making;
o any possible process of shared decision-making on the Site C Project was precluded from the outset by the following actions and policies which have not kept pace with the law and remain unchanged since the 1960’s:
• British Columbia’s Two Rivers policy;
• the establishment of the Flood Reserve;
• the construction of the WAC Bennett Dam;
• the construction of the Peace Canyon Dam;
• the project-specific objective of maximization of hydroelectric potential of the Peace River.
o the Province passed the Clean Energy Act, which, among other things, exempted Site C Project from oversight by the British Columbia Utilities Commission (“BCUC”) and consideration of the public interest, while also limiting the potential for alternatives to the project.
In sum, the Crown has failed to engage in any process of meaningful consultation, failing to conduct a credible preliminary assessment, limited the Joint Review Panel’s ability to consider the existing proven Treaty rights of the Treaty 8 Nations, exempted
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© 2013 Treaty 8 Tribal Association the proposed Project from BCUC oversight and continued to apply policies developed in the 1960s. Each of these actions severely limits the possibility of a shared decision- making model proposed in Haida Nation and implemented through the CMAs.
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SITE C CLEAN ENERGY PROJECT
Panel Hearing Submission
November 25, 2013
Access to Health and Social Services and Physical Infrastructure
Shona Nelson, Director – Treaty and Aboriginal Rights Research
Treaty 8 Tribal Association
on behalf of the Treaty 8 First Nations
© 2013 Treaty 8 Tribal Association
Table of Contents
1 INTRODUCTION ...... 3
2 FORT ST. JOHN EXPERIENCE WITH SOCIAL AND HEALTH SERVICES ...... 4
3 TREATY 8 EXPERIENCE WITH SOCIAL AND HEALTH SERVICES ...... 8
4 INSUFFICIENT MITIGATION ...... 10
5 INADEQUATE BASELINE ...... 11
6 IMPLICATIONS FOR THE TREATY 8 FIRST NATIONS ...... 13
APPENDIX A – PROFESSIONAL PROFILES ...... 14
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1 INTRODUCTION Role of Treaty and Aboriginal Rights Research
The Treaty and Aboriginal Rights Research (TARR) department at the Treaty 8 Tribal Association conducts research, writes and submits specific claims or reports for past grievances where there has been a legal obligation by the Crown to fulfill its duties to the First Nations signatories to Treaty # 8. Further to that, First Nation advocacy and negotiation support is provided to Treaty 8 First Nations at their request.
The TARR department has been responsible for the overall coordination and consultation management of the proposed Site C Project with BC Hydro since 2008.
The proposed Site C Project should it be approved will have significant impacts on the Treaty 8 First Nations’ ability to exercise their Treaty rights in the Peace River valley. Background
BC Hydro proposes to build the Site C Project on the Peace River, 7km south of the City of Fort St. John. The Site C Project is a large hydroelectric project that is purported to create 10,000 direct construction jobs, and approximately 33,000 total person-years of employment through all stages of development and construction.1 A development of this magnitude will encourage new employment in the community of Fort St. John and surrounding area, and will draw new workers and their families into the community, either as permanent or temporary residents.
If this proposed Project were approved, the incoming population would affect the social environment in many ways, including an increased demand for housing, health, and social services (e.g., health care, day care, education, recreational facilities)
The City of Fort St. John is already a community impacted by large-scale development (oil and gas extraction, pipelines and LNG) and has experienced chronic labour shortages in the skilled trades and professional fields.
It is the assertion of this Joint Panel Review submission that there is:
1 BC Hydro. 2013. Site C Clean Energy Project: Business Case Summary, p, 27.
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Already a shortage of housing, health and social services available to the local residents,
• Treaty 8 First Nations are already experiencing significant challenges to accessing these services, • BC Hydro’s mitigation measures will not sufficiently address the increased demand on community services resulting from the in-migration of new workers; and • The project will cause a significant adverse effects on the Treaty 8 First Nations when it comes to accessing an already over-taxed social service delivery system.
2 FORT ST. JOHN EXPERIENCE WITH SOCIAL AND HEALTH SERVICES
In 2012, the City of Fort St. John conducted a comprehensive consultation process with its residents and produced the document “Summary of Community Engagement Process and Stakeholder Feedback.
The following is a summary of the concerns that the local residents identified when asked how Site C would impact them and the community of Fort St. John.
Health services: A new hospital has just opened in Fort St. John. Recruiting professionals to the community remains a struggle yet this project intends to hire medical professionals for their camps rather than working with the community. General practitioners working within camps will require lab and diagnostic imaging to diagnose. Unless BC Hydro intends to have full laboratory and diagnostic imaging at camp sites, patients from the camps will need to access services provided by our local hospital – this further strain on services is a concern to the community.
For years the community has requested a nursing program for training youth and residents to enter into this field of work. Currently there are three registered nursing schools across northern BC, two within an hour of each other and none in the Northeast. This community is expected to take the impact of having a sudden increase in our already large shadow population without the benefit of seeing the training that is necessary being made available in our region.
Para-medical services: Concerns were expressed that physiotherapy, home care, the Child Development Centre, community health and all other
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paramedical services will experience a further strain on already stressed services. A project of this size will attract a peripheral economy with families and those who will need these services. It was felt that families who live here and helped build this community cannot and should not bear the brunt of the effects of this project. Assistance in recruitment and funding will be necessary.
Social Services: The social infrastructure in Fort St John is already stretched and it was felt that this project will tear it apart. Funding will be needed to ensure that the programs that support our children, families and women are kept viable. There were concerns expressed from many community groups that BC. Hydro does not realize the impact that the project will have on the services that community groups provide to the community and the lack of resources that are available to them to address any further stressors on their services. Historical examples of people coming to the community looking for work without pre-planning for housing and adequate living costs were discussed as well as how employers would be dealing with workers terminated that did not have adequate resources to return to their original places of residence.
Safety: The City of Fort St John pays for 90% of the Municipal Policing Unit and this represents the largest cost item in the City’s budget. As with increases in the peripheral economic growth, it is suspected that there will also be growth in organized crime and illegal drugs. It is felt that the City and its residents should not be required to absorb the increased costs to the community for policing. Increases to municipal policing costs and additional funding for the RCMP Provincial contingent must be provided if this project moves forward.
…
Housing: Housing is a concern for residents particularly in the areas of affordability and pricing. The community could end up with such a demand for housing that prices may limit the ability to recruit professionals to the community. If that happens, it was asked if the province would supply subsidies or homes within the community to ensure that services are maintained.
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There were many suggestions that camp housing be designed for re-use after the camps are no longer required. 2
Additional concerns included:
• Concern that workers living in camps would not be contributing to the tax base however they would be putting a strain on an already strained system – social programs, local government programs (recreation, water/sewer etc.), healthcare services and programs, education system etc.
• Concern that there may be inflated costs due to increased demand for services
• Concern that housing workers in camps will contribute to crime both directly and indirectly
• Real estate market concerns – concern that demands for specific types of accommodations may not be met and prices become inflated – affordable housing is already a concern in the community
• Increased crime rates with influx of people
• Increased costs for rental accommodations • Low unemployment may contribute to youth quitting school to work at the dam rather than graduating
• Added traffic congestion • Increase in transient workers and associated impacts • Construction chaos – worry about boom/bust cycle
• Concern that it will be harder to find workers as there will be more competition for people – added stress on businesses, organizations, institutions
• Stress on services – longer lines everywhere
2 City of Fort St. John. 2012. Summary of Community Engagement Process and Stakeholder Feedback pp. 4-5.
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• An increased load on already taxed services providers (RCMP, ambulance, municipal, health etc.)
• Non-profit groups will feel the strain from more people wishing to access services, higher rent costs,
• Services that may be improved in the short-term may drop off after project is complete3
It is evident that residents in the City of Fort St. John experience the already stretched housing, social service and health services network and there are substantial and legitimate concerns with the effect the project would have on the community. Residents also indicated that BC Hydro should contribute financially to offset the burden that the community will bear through the construction phase. Examples of this included:
• B.C. Hydro should contribute to both ongoing and one time community/regional legacies – suggestions included alternative energy housing projects, daycare facilities, low income housing (suggestion to use worker housing as social housing after project completion), recreational facilities (e.g. indoor play area),
• Recreational areas along the reservoir, lump sum project contributions, educational trust funds
• Enhanced recreational facilities should be developed along the reservoir
• Increased amenities through growth of the business sector and growing population
• Enhanced Arts and Cultural opportunities • Expansion of opportunities for showcasing the area and aboriginal culture
3 Ibid, pp. 10-26.
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• Expansion of City limits and tax base to relieve taxpayer costs, infrastructure burdens and to ensure BC Hydro contributes to the community
• Taking advantage of increased transportation options – Jackfish Road, permanent bridge across the Peace River, upgrading of other transportation options (e.g. airport)
• Increased educational and vocational options • Cheaper power rates
3 TREATY 8 EXPERIENCE WITH SOCIAL AND HEALTH SERVICES Treaty 8 First Nations are already experiencing significant challenges accessing housing, health and social services
It has been articulated in the Treaty 8 First Nations Baseline Community Profile Report that access to health and social services are limited in northern BC in general, but especially so for on-reserve First Nations members. There are many barriers, including long wait times for specialists and long distances to travel in order to access services. Often T8FNs patients need to travel and stay in Fort St. John or Dawson Creek overnight in order to access services. There is generally a concern that people lack access to the health professionals they need, and that the scope of services is too narrow. As a result of these barriers, people tend to end up not treating illnesses early on and receive treatment in emergency facilities. 4
Specific negative issues related to social services provision have been identified at the Treaty 8 Tribal Association:
• Insufficient funding for services; • Lack of sustained commitment to fund programs and services long term; • Funds directed to administration preferentially above service delivery; • Lack of staff and resources at the community level;
4 Treaty 8 First Nations (T8FNs) Community Assessment Team. 2012. Telling the Story of Change the Dane-zaa Way. (Site C EIS, Volume 3, Appendix b7), pp. 248-249.
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• Difficulty in recruitment and retention of staff and resources at the Nations; and • Lack of trained police officers and firefighters on the reserves, meaning that services come from the local urban centre, so it is often difficult to get police to come out to the communities which raises public safety concerns.
It was also identified in the Treaty 8 First Nations Initial Impact Pathways Identification Report5 that in-migration and large influx of funds in the local economy will likely increase the demand on health and social services from larger populations and from higher dysfunction associated with a boom economy.
The Pathways Identification Report also informs the reader that T8FNs currently experience:
• There is insufficient funding from Health Canada for health programs and services in the First Nations; • The community and regional health services are overused with long waits for doctors and dentists, so people end up ill in emergency or in hospital; • Early morning appointments in Fort St. John require an overnight stay for on- reserve members; • First Nation members have difficulty getting to health services and facilities due to lack of transportation, even with bus services from the First Nations; • Health services in Chetwynd are not increasing with the existing drug problem; • Lack of access to medical health professionals, including doctors, nurses and specialists; • Lack of mental health professionals; • Services that are offered in the First Nations are good, but scope of services provided is narrow; • There is a community health representative in each community, but a need for more certified emergency personnel in the First Nations, and better access to health care professionals; and
5 Treaty 8 First Nations (T8FNs) Community Assessment Team. 2012. Site C Project: Initial Impact Pathways Identification Report. (Site C EIS, Volume 3, Appendix b7).
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• The population of elders does not justify a seniors' centre on any of the reserves.
The Pathways report also suggests the potential for housing pressures in Fort St. John due to in-migration and inflation force people to move back to home reserve communities thus existing pressures on housing would be exacerbated by additional crowding.
The existing situation on the reserves can be characterized by the following:
• There is currently a shortage of housing on all of the four reserves due to a lack of funding to construct new houses; • Degrees of overcrowding vary between reserves; • There is a lack of appropriate housing for seniors, and housing often has poor access for seniors on all of the reserves; • Some young families are moving back to the First Nations as a result of high rents and high cost of housing elsewhere, including Fort St. John; • cost of living off-reserve drives the need for housing on-reserve; • constant need for funding for on-reserve housing maintenance; • lack of funding from AANDC to construct needed new housing; • there are many work orders for minor repairs to houses; • scheduling of work is a challenge; and • Costs for house maintenance are high.
4 INSUFFICIENT MITIGATION BC Hydro’s mitigation measures will not sufficiently address the increased demand on community services by the in-migration of new workers
BC Hydro has proposed the following mitigation measures to address the increased demand on community services by the in-migration of new workers and their families:
• Providing on-site health care for all workers residing in camps, would include a combination of physician care, on-site nurse or nurse practitioner care; • Coordination on program delivery (i.e., Employee Assistance Program, men’s health programs); • Supporting Northern Health and partner agencies in planning for anticipated changes in resident population, by communicating workforce schedules, in-
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community population forecasts, housing plans, and on-site medical and social services; • Supporting Northern Health initiatives as BC Hydro develops approaches for delivery of health services for camp workers; • Providing financial support to emergency or transitional housing providers in the City of Fort St. John; • Providing additional daycare spaces in the Fort St. John area; • Transitioning 40 units of housing to permanent affordable housing after Project construction; • Building up to 10 new affordable housing units to be used by the community; and • Funding to the RCMP during construction to increase policing in the region.
The mitigation measures proposed by BC Hydro indicate that they see the proposed Project affecting the community and infrastructure minimally and the expectation is that local service providers would plan for it incrementally. There is no mention of measures that would address the concerns brought forward by the T8FNs. Mitigation measures could have included:
• On-going, stable investments into local First Nation health and social service delivery • Financial supports for on-reserve housing • Increased funding for Aboriginal Policing • Youth and Elder Programming
BC Hydro’s responses to T8FNs’ Information Requests ab_0001-026 and ab_0001-562 attempt to deflect focus on important questions about whether new in-migrants to the region will contribute to effects on T8FNs quality of life. This is both a Project-specific and cumulative effect. The fact of the matter is, should the Project proceed, it would induce in-migration and increase demand for goods and services, and pressures on existing infrastructure.
5 INADEQUATE BASELINE BC Hydro’s response – “this has happened before and not been a problem, and government departments will pick up the slack”.
There are problems with BC Hydro’s response. BC Hydro doesn’t provide enough trend over time data to show convincingly that, during boom times, area infrastructure and
November 2013 11 © 2013 Treaty 8 Tribal Association services have kept up with increasing demand. Secondly, there is plentiful anecdotal information available, should BC Hydro have considered it, that Fort St. John has before been and can again become an area with high crime, high risk, high drug and alcohol issues, high cost of living, and problematic access to services for all people needing such services.
Add to this the fact that BC Hydro appears to reject the fundamental premise of good environmental assessment – to focus on the most sensitive receptors – in this case First Nations people, both on and off-reserve, who are disproportionately more likely to be impacted negatively by in-migration and the economic boom and bust patterns (either or both may have adverse impacts on such a vulnerable sub-population). 6
Yet, somehow, BC Hydro effectively ignores the issue and refuses to disaggregate (in many cases) baseline and trend over time conditions between aboriginal and non- aboriginal sub-populations, and in virtually every effects characterization instance, ignores fundamental differences in exposure to economic and social risks for First Nations people. (See IR’s ab_0001-585 and ab_0001-590.)
BC Hydro’s response to our information request in ab_0001-592 expressly ignores the likely effects of extremely large, near-community, large-scale construction projects on vulnerable sub-populations, despite large volumes of previous environmental assessment and other research on this subject. Among the specific effects related to in-migration and economic growth pressures on First Nations include:
• Increased demand for housing in Fort St. John and associated potential for reduced Aboriginal access to affordable housing (see ab_0001-594, 595, 596) • Increased potential for homelessness, crowding and poor housing conditions for vulnerable sub-populations in Fort St. John (ab_0001-600) • Reduced Aboriginal access to services and infrastructure (ab_0001-598, 602, 608, 616-618).
6 Personal correspondence, November 2013. A. MacDonald, Firelight Group.
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6 IMPLICATIONS FOR THE TREATY 8 FIRST NATIONS The project will cause a significant adverse effect on the Treaty 8 First Nations when it comes to accessing an already over-taxed social service delivery system
In reviewing the concerns brought forward by the residents of Fort St. John and the T8FNs, and BC Hydro’s proposed mitigation measures and baseline information, it is evident that the proposed Site C Project will not have an overall positive effect on any of the existing social, cultural or economic issues that face the communities. In fact, the Site C project will very likely have the opposite effect. The Site C Project cannot demonstrate through its mitigation measures how it will improve the community infrastructure, such as affordable and accessible good-quality housing, social programs, health services and transportation for the community of Fort St. John or the T8FNs.
BC Hydro is choosing to primarily rely on government involvement, such as Northern Health, RCMP and local service programs to “pick up the slack” for the increase in population with little or no financial supports. No mitigation measures were targeted for the T8FNs to address the already limited resources available to the communities.
Sadly, BC Hydro disregards the fact that First Nations people are among the most vulnerable and susceptible to the negative effects of large industrial projects like Site C. Yet, the T8FNs clearly articulated through their research the current situation and their concerns about housing, health and social service delivery. One can logically conclude that with no real investments to the local service providers and targeted funding for the T8FNs the outcome will be significant adverse effects to the Treaty 8 First Nations should the Site C Project be approved by the federal and provincial governments.
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APPENDIX A – PROFESSIONAL PROFILES
Shona Nelson
10420-109th Street, Fort St. John, BC. V1J 0J3 | 250-261-8920 | [email protected]
EDUCATION Justice Institute of British Columbia Certificate in Applied Leadership and Conflict Resolution 2013
University of British Columbia Bachelor of Arts-Political Science/Public Administration 1992-1995
Northern Lights College Social Sciences-University Transfer Program 1990-1992
North Peace Secondary School High School Graduation 1990
WORK EXPERIENCE Treaty 8 Tribal Association Director of Administration/Treaty & Aboriginal Rights Research 2006 to present Responsible for the overall administration of the Tribal Association.
North East Native Advancing Society Employment Training Program Coordinator 2000-2006 Administered Human Resources Development Canada funding to support training to employment programs for Aboriginal people in Northeast BC.
Employment Connections Employment Counselor 1997-2000 Administered Human Resources Development Canada funding to support training to employment programs for unemployed persons in Fort St. John and area.
School District #60-Key Learning Centre Teacher’s Assistant 1995-1997 Provided career counseling and resume writing services to adult learners.
RELATED EXPERIENCE Director Kihew-Sas Ventures Present Director at large for a Treaty 8 First Nation Development Corporation
Director Northern Lights Recovery Centre Present Director at large for a drug and alcohol rehabilitation centre.
Vice-President North East Aboriginal Business Centre 2011 to present
Director Industry Council for Aboriginal Business 2011-2013
November 2013 14 SITE C CLEAN ENERGY PROJECT
Panel Hearing Submission November 25, 2013
Treaty 8 First Nations’ Perspectives on Cumulative Effects of Development on the Exercise of Treaty Rights
Jeff Richert, Site C EA Coordinator Office of Treaty and Aboriginal Rights Research Treaty 8 Tribal Association on behalf of the Treaty 8 First Nations © 2013 Treaty 8 Tribal Association
Table of Contents
1 INTRODUCTION ...... 3
2 AGRICULTURE ...... 4
3 FORESTRY ...... 5
4 MINING ...... 7
5 OIL AND GAS ...... 8
6 HYDROELECTRIC DEVELOPMENT ...... 13
7 WIND POWER ...... 15
8 LINEAR DEVELOPMENT ...... 16
9 CUMULATIVE EFFECTS PERSPECTIVES ...... 17
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1 INTRODUCTION
The Peace Region has been heavily impacted by agricultural expansion and numerous industrial activities for decades. The Treaty 8 Nations of Doig First Nation (DRFN), Halfway River First Nation (HRFN), Prophet River First Nation (PRFN) and West Moberly First Nations (WMFN’s) have expressed serious concern that the cumulative effects of these activities are increasing with no end in sight. These concerns have been largely ignored by government and industry, with jobs and the economy being the driving force of industrial expansion. With industrial activity continuing with little deceleration, the Treaty 8 First Nations are concerned that the changes to the landscape that we rely upon will continue to remove our ability to meaningfully practice our treaty rights.
In its letter to the Proponent dated November 7, 2013 concerning the sufficiency of the information contained in the Amended EIS, the Joint Review Panel (JRP) noted that:
only past actions are reflected in the baseline, not current ones such as currently operating hydroelectric projects, forestry operations and oil and gas. As per the Cumulative Effects Practitioners Guide, current projects that affect a valued component (VC) need to be considered in the cumulative effects assessment.
Given this concern raised by the Panel, we are providing a description of each of the primary activities on the landscape within the Peace Region to help provide context to the issue of cumulative effects from the perspective of the Treaty 8 First Nations. This information is intended to complement the findings of the “Atlas of Land Cover, Industrial Uses and Industrial- Caused Land Change in the Peace Region of British Columbia”1 that was submitted by the Treaty 8 First Nations to the JRP on September 23, 2013.
1 Lee, P and M. Hanneman. 2012. Atlas of Land Cover, Industrial Land Uses and Industrial-Caused Land Change in the Peace Region of British Columbia. Global Forest Watch Canada Report #4, 95pp.
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2 AGRICULTURE
Agricultural activity commenced in the Peace Region when the first homesteaders arrived in the early 1900’s as the federal government encouraged homesteading in the region. Subsequent land clearing related to agricultural expansion occurred throughout the last century and continues today. According to regional land data, private land within the Peace Region currently encompasses 8,704 square kilometers with the majority of the private land being used for agricultural purposes.
When land is cleared for agricultural purposes it does not retain its previous habitat characteristics; instead a crop monoculture is created. As the clearing of forest spreads, the land base becomes a contiguous grouping of farmland, and the diversity of plant and animal species is reduced as habitat is removed. The permanent alteration of the landscape and continued agricultural activity creates a situation where regeneration of natural plant and tree species is no longer possible. The continued use of the land for agriculture inhibits the ability of the land to regenerate to its natural state, causing a permanent loss of habitat for species previously inhabiting these areas.
The creation and expansion of private land is a concern for the Treaty 8 First Nations. Our ability to practice our Treaty Rights in areas previously available to us is reduced as access is limited or prohibited by landowners. In some cases, entire areas previously used by our First Nations for their significant cultural and subsistence importance have been converted completely to agriculture or made entirely unavailable to us. A visual representation of this issue helps to illustrate the scope and impact of agricultural expansion in the region. The Google Earth image below shows the degree of land utilization for agricultural purposes, as data outlining the exact amount of private land that is used for farming activities is not available. Note the areas surrounding Dawson Creek and Fort St. John have been subject to extensive land clearing for agricultural purposes. These areas are shown in the lighter shade of tan with forests being darker green.
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Figure 1: Agricultural Lands in the Peace Region
3 FORESTRY
Timber harvesting in the Peace region has occurred for decades, with five mills currently operating in the region with others currently idled due to market conditions. The Peace Region is comprised of three Timber Supply Areas (TSAs), with the Fort St John and Dawson Creek TSAs currently active and the Fort Nelson TSA without any active major licensee operations (see Figure 2). The recent Canfor mill closure in the Fort Nelson TSA halted forest industry timber extraction; however, oil and gas related clearing activities continue. Each TSA has a provincially mandated Annual Allowable Cut (AAC) for timber harvesting as follows:
• Fort Nelson TSA – 1,625,000 m3/year • Fort St John TSA – 2,115,000 m3/year • Dawson Creek TSA – 1,860,000 m3/year2
2 FLNRO data, http://www.for.gov.bc.ca/hts/aactsa.htm, accessed October 2013.
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Figure 2: Timber Supply Areas in Northeastern BC
Between the years of 2000 and 2012, a total of 52,482,046 m3 of timber was harvested between the three TSA’s.3 To put this in perspective, a typical highway logging truck carries an average of 50 m3 of harvested timber per load, meaning a total of 1,049,640 truckloads of timber have been taken from the Peace Region in the past 12 years, or nearly 90,000 truckloads per year. This explains why we continually express our concern over the rate of timber extraction in the Peace region.
Among a number of concerns related to the industry, timber extraction has increased access by the general public to important hunting areas and has altered the landscape on which culturally important species rely.
3 FLRNO data, email correspondence, April 2013.
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4 MINING
The south eastern flank of the Rocky Mountains in the Peace Region is currently home to a large number of coal tenures and is under constant threat of development as shown on page 47 of the “Atlas of Land Cover, Industrial Uses and Industrial-Caused Land Change in the Peace Region of British Columbia”. 4 Figure 3 below from the Ministry of Energy, Mines and Natural Gas, displays four active mines in the Peace Region. The highlighted Wolverine, Trend and Brule mines are currently operating, while the Willow Creek Mine is currently temporarily idled as of October 2013. Construction of the Roman Mine near Tumbler Ridge started in August 2013 bringing the total number of active mining operations to five in the Peace Region.
Large-scale open pit coal mining in the Peace Region creates a number of issues; such as contaminated surface and ground water due to surface mine water runoff.5 This is an issue in the Tumbler Ridge area as the coal mines in the area are open pit mines. With a large portion of the eastern flank of the Rocky Mountains under tenure in the Peace Region, First Nations are especially concerned about the long-term impacts to the Woodland Caribou (Rangifer tarandus-caribou). In addition to other impacts on the land base, continued mining expansion in the Rocky Mountains has the potential to further fragment caribou habitat.6 There are currently 14 other mining projects in the exploration and pre-application stages with more proposals anticipated in the future.7 Considering the number of mines already in operation, and the large number of potential future mining operations, our First Nations have concerns about future mining impacts on the land and species important to us and to meaningful practice of our Treaty Rights.
4 Lee, P and M. Hanneman. 2012. Atlas of Land Cover, Industrial Land Uses and Industrial-Caused Land Change in the Peace Region of British Columbia. Global Forest Watch Canada Report #4, 95pp. 5 Tiwary, R.K. 2001. Environmental Impacts of Coal Mining on Water Regime and Its Management. Water, Air and Soil Pollution. 132: pp. 185-189. 6 West Moberly Land Use Department. 2009. I Want To Eat Caribou Before I Die – Initial Submissions for the Proposed Mining Activity at First Coal Corporation’s Goodrich Property. pp. 93. 7 BC MEMNG, BC Geologic Survey. 2013. British Columbia Coal Industry Overview 2012, pp13.
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Figure 3: Coal Mining Activity in British Columbia8
5 OIL AND GAS
The Peace Region was first recognized as having oil and gas reserves as early as the early 1920’s with the first well being drilled near Rolla, north of Dawson Creek in 1921.9 Oil and gas was discovered within the vicinity of Fort St John through a series of attempts in the 1940’s that created the beginnings of an established industry in the region.10
8 http://www.empr.gov.bc.ca/Mining/Geoscience/Coal/PublishingImages/Aug31Image.png, accessed October 2013. 9 http://www.calverley.ca/Part12-Enterprises/12-20.htm, accessed November 18, 2013. 10 Ibid.
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The graphic below depicts the annual number of oil and gas wells drilled in British Columbia since the first well was drilled. According to the British Columbia Oil and Gas Commission (OGC) data, a total of 23,419 oil and gas wells have been drilled to date in British Columbia. Figure 4: Number of Wells Drilled in B.C. Annually11
11 http://www.bcogc.ca/industry-zone/activity-levels, accessed October 2013.
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Oil and gas exploration and development involves a variety of land clearing, industrial and transportation activities, each with their associated implications for neighbouring land, air and water as well as for Treaty 8 First Nations land use. During the initial exploration stages, seismic lines are used to determine the presence of potential formations that contain accessible oil and gas reserves. The Google Earth image below details what the landscape can look like after seismic activity occurs, as shown in an area north of the Doig River First Nation reserve. Note the large number of seismic lines (smaller in size) crossing the landscape. Figure 5: Oil and Gas Exploration north of Doig River First Nation
The Google Earth image below details an area that has experienced limited seismic activity, east of Prophet River First Nation. Note the contrast between these two images with regards to these linear impacts on the landscape.
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Figure 6: Region Unaffected by Oil and Gas Exploration near Prophet River First Nation
In order to access the desirable location for drilling, it is common for oil and gas companies to build either summer or winter roads known as Petroleum Development Roads (PDRs). Once these areas become accessible to vehicular transportation, increased activity and expansion can occur because access is the limiting factor for industrial activity in many areas due to the presence of high water tables and muskeg. Once access is created by the completion of road construction, lease sites are drilled, well sites are completed and pipelines are built and tied into existing lines. Gas plants, compressor stations and related facilities soon follow. Once construction of all related infrastructure is complete, the area moves into the production stage. The extent of the land-based disturbance is quite apparent in the Google Earth image below showing an area north of the Halfway River First Nation reserve.
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Figure 7: Oil and Gas Exploration north of Halfway River First Nation
Note the presence of seismic lines, PDRs and oil and gas lease sites. Pipeline corridors are also visible as connecting the lease site together.
Video Submission CTV BC First Story #1303 – Black Blood – 23:52
This story outlines an example of a key issue surrounding the oil and gas industry in the Peace Region; soil contamination and its impacts on wildlife and First Nations. The Treaty 8 First Nations have serious concerns about the impacts on water and wildlife of oil spills and contaminated sites throughout the territory, as a result of the extensive oil and gas activity. The West Peejay oil spill, which occurred in 2002, is still not remediated to this day. The impacts resulting from extensive oil and gas activity are many with loss of habitat, reduced wildlife population, human health impacts and air and water quality among the key issues.
With an extensive oil and gas industry in the region, the wide ranging effects are very relevant to the cumulative effects of development occurring in the region affecting First Nations Treaty rights and the ability to meaningfully practice them.
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6 HYDROELECTRIC DEVELOPMENT
There are currently two hydroelectric developments on the Peace River. Completed in 1968, the WAC Bennett Dam created the Williston Reservoir, which flooded an area of 1,773 square kilometers,12 and approximately 122 kilometers of the Peace River up to its point of origin at the confluence of the Finlay and Parsnip Rivers.
The second hydroelectric project on the Peace River, the Peace Canyon Dam, was completed in 1980.13 The Peace Canyon Dam created Dinosaur Reservoir, which at 8 square kilometers inundated an additional 22 kilometers of the Peace River.
Figure 8: Hydroelectric Development on the Peace River14
The proposed Site C Project, if developed, would inundate an additional 83 kilometers of the Peace River, 14 kilometers of the Halfway River and 10 kilometers of the Moberly River. The creation of the Site C Reservoir would inundate an additional 93 square kilometers of the Peace River valley.
12 BC Hydro, http://www.bchydro.com/community/recreation_areas/williston.html, accessed September 2013. 13 BC Hydro, http://www.bchydro.com/community/recreation_areas/peace_canyon_dam_visitor_centre.html, accessed September 2013. 14 BC Hydro, http://www.bchydro.com/energy-in-bc/projects/site_c.html?WT.mc_id=rd_sitec, accessed October 2013.
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The total original pre-inundation length of the Peace River in British Columbia is 285 km from the confluence of the Parsnip and Finlay Rivers to the Alberta border. If the proposed Site C Project were developed, 226 km of the original 285 km, or 80% of the free flowing Peace River in British Columbia would be inundated. Video Submission CBC Documentary – 1970 - Tall Grass People – 24:17
The impacts of the prior two dams are profound and continuing. The video submission, even though of low quality, provides a good fundamental understanding of the impacts of the WAC Bennett Dam on the environment and local First Nations when the project was first completed. The first-hand accounts and experiences of the interviewees in the movie help to provide an understanding that the concerns of the Tall Grass People thirty-three years ago are still relevant today and remain largely unmitigated and unmitigable. The impacts from the creation of Williston Reservoir will continue for the life of the WAC Bennett Dam.
The areas flooded by the Williston Reservoir destroyed high value valley-bottom wildlife habitat valuable to First Nations for hunting, travel and residence during their seasonal round. Important berry picking areas were flooded, reducing the availability of an important food source. Transportation routes were cut off by floating debris, which also impeded wildlife travel. Cultural and burial sites were flooded, with stories of people running from the rising waters as they were never informed of the exact time of flooding. The flooding of the reservoir was a very traumatic event, severing connections between communities and family groups.
The reservoir and the erosion it has caused create a barrier to wildlife migration that continues today. Use of the reservoir for water transportation is limited as conditions can become dangerous due to high winds and travel requires a large vessel due to ongoing debris, as the reservoir was never properly cleared before inundation. Methylmercury contamination has created unease in the First Nation communities and prevents people from fishing due to the fear of contaminated fish. As an example of ongoing wildlife impacts, Woodland Caribou populations no longer have the ability to migrate across what was once the Peace and is now the Williston reservoir, causing them to become fragmented with a decline in species populations being a major concern.
Considering the scope and breadth of these past and ongoing environmental effects and impacts on First Nations related to the two existing hydroelectric projects on the Peace River, it is understandable why developing a third dam is a major concern for First Nations.
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7 WIND POWER
Currently there are three operating wind farms in the Peace Region.
Bear Mountain Wind Park located near Dawson Creek was the first operating project in the region and in British Columbia. With operations started in 2009,15 the Bear Mountain Wind Park has a total and has 34 wind turbines.
The second project to come online in the region is the Dokie Wind Farm located an hour drive northwest of Chetwynd. This project has a total of 48 wind turbines and is fully operational.16
The third project, and most recent to come online, is the Quality Wind project near Tumbler Ridge. This project has 79 operating wind turbines and was online in the fall of 2012.17
There are a number of wind power sites located along the southeastern flank of the Rocky Mountains in the region similar to the coal areas referred to above. These sites are detailed on page 61 of the “Atlas of Land Cover, Industrial Uses and Industrial-Caused Land Change in the Peace Region of British Columbia”.18 There are concerns among the First Nations with regards to wind development in the region including: potential impacts on high elevation habitat for Woodland caribou; impacts on cultural sites and areas; and the effects of the linear developments required to build these projects such as access roads and transmission lines.
What wind power does provide is a solution to energy needs in a manner that allows for a more manageable footprint compared to a hydroelectric project. Impacts created by wind projects can be avoided by adjusting project location and mitigated through measures that are less costly and offer less complex and more effective solutions compared to mitigating hydroelectric development. Wind energy offers a potential solution to meeting energy demand while reducing the project footprint and impacts on the land. This is something that the proposed Site C Project does not offer.
15 http://www.altagas.ca/power/renewable/wind/bear_mountain_wind_park, accessed November 23, 2013. 16 http://www.alterrapower.ca/Theme/Magma/files/assets/_pdf/Canada/Dokie%20Power%20Plant%20-%20BC.pdf, Accessed November 23, 2013 17 http://www.capitalpower.com/generationportfolio/contractedfacilities/Pages/QualityWind.aspx, Accessed November 23, 2013 18 Lee, P and M. Hanneman. 2012. Atlas of Land Cover, Industrial Land Uses and Industrial-Caused Land Change in the Peace Region of British Columbia. Global Forest Watch Canada Report #4, 95pp.
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8 LINEAR DEVELOPMENT
An aerial view of the Peace Region shows a landscape that has been heavily impacted by multiple layers of industrial activity. The multiple industries operating on the land create new points of access for expansion and in some areas the sharing of roads and right of ways already present. This multiple industrial use creates a significantly segmented landscape, composed of a variety of linear developments such as roads, seismic lines, hydroelectric corridors, pipelines and opening such as oil and gas leases and forestry cut blocks. Figure 9 below, showing an area south of the Prophet River First Nation Reserve, is a good example of what the landscape can look like when multiple industries are operating in the same area. Note the presence of forestry cut blocks, seismic lines, PDR roads, pipelines and associated oil and gas facilities.
Figure 9: Linear Development south of Prophet River First Nation
A compilation of data available from government sources indicates that the Peace Region currently has the following linear disturbances:
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• 19,598 kilometers of pipelines;19 • 332,904 kilometers of seismic lines;20 • 45,293 kilometers of roads;21 and • 1,166 kilometers of transmission line.22 This compilation does not include the total widths of road right of way, clearings or oil and gas leases and gas plant sites, as data measuring the amount of land cleared for oil and gas purposes is unavailable.
9 CUMULATIVE EFFECTS PERSPECTIVES
The cumulative impacts of industry operating on the land are substantial in scale, and have implications for a variety of First Nation values that are important to the ongoing practice of our Treaty Rights and the prevention of further deterioration of our culture.
Frustrations and anxieties are deep and run high among Treaty 8 First Nation families over threats to the health and abundance of the animals and the plants relied on for subsistence. As natural stewards of the lands and waters in Treaty 8 territory, and due to an often self- regulated environment for industry to operate, the T8FNs are voluntarily policing the damaging and overlooked effects of industrial activity. There have been many examples where the T8FNs communities have had to proactively force change within industry and government, so that action to long-standing concerns would finally occur.
I’m hurt…my heart is crying for my great grandchildren… We can’t drink the water any more… they’ve spoiled our trees and water…
Max Desjarlais, West Moberly First Nations Elder
With a culture connected to the landscape, the impacts are felt deeply by the people. When places are changed due to industrial development, people feel a sense of loss. This issue has been referred to as “death by a thousand cuts”, where a number of activities on the landscape over time erode the ability of First Nations to practice Treaty rights in a meaningful way.
19 BC OGC Data, November 2013 20 BC OGC Data, November 2013 21 Global Forest Watch, email correspondence, November 2013 22 Data BC, October 2013.
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Table 1 provides a summary of issues associated with the cumulative effects of multiple industrial activities operating on the landscape. Table 1: Summary of Cumulative Effects Causes and Outcomes on the T8FNs23
Cumulative Effects Observed Effects Outcomes Locations of Highest Causing Factors Concern
-Residential and -Increased competition for resources by non- -Fort St. John population growth Aboriginal recreational users -Taylor -development of -Contamination of lands and waters by new -Chetwynd cities, towns and residents and recreational users -Dawson Creek regional districts -reduced land for seasonal rounds -Charlie Lake -sport hunting -higher access to drugs and alcohol and other -Moberly Lake negative influences -Del Rio, Crying Girl -lower wildlife numbers and health Prairie and Chowade, -racism and economic marginalization for T8FNs and around Doig River -reduced public safety when out harvesting in Management Unit 45 -reduced “quiet enjoyment of the land” (all adversely affected -reduced role for First Nations in governance by large influxes of and decision making sports hunters) Farming -Reduced access to land; some farmers will not -Especially around let you access their land, and large scale land DRFN and HRFN clearing for agriculture reserves -increase in invasive plants -in the eastern part of -reduced water quality near live animal facilities WMFNs Area of Critical -cutting off of traditional trails Community Interest -reduced wildlife distribution -Farrell Creek and Beryl Prairie areas
23 Treaty 8 First Nations (T8FNs) Community Assessment Team. 2012. Telling the Story of Change the Dane-zaa Way, pp.96-99. (Site C EIS, Volume 3, Appendix b7).
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Cumulative Effects Observed Effects Outcomes Locations of Highest Causing Factors Concern
Forestry -reduced habitat -throughout the Upper -spraying contaminants Moberly watershed -water quality and aquatic habitat effects, -Chowade River area especially riparian habitat near HRFN reserve -land alienation -surrounding Doig River Oil and gas -water and air contamination -throughout Dane-zaa
-conventional -public health risk (especially H2S) territory, but -shale gas -loss of quiet enjoyment of the land due to especially: (fracking) noise, activity, smell and other disturbance -Montney effects -Farrell Creek -reduced wildlife distribution and health -Del Rio area -increased linear access for non-Aboriginal -Pine River oil spill harvesters (2000) -reduced trapping practice and success -around Prophet River -concerns about groundwater and water quantity issues (fracking) -human health contamination concerns (perceived risks also lead to reduced harvesting) Mining, especially Potential effects include: -Tumbler Ridge coal (not yet -concerns about effects on caribou -Hart Highway occurring close to -increased linear disturbance -Strong desired of Peace River but -water and aquatic habitat contamination industry to mine from proposed and concerns Williston Reservoir and therefore -increased sensory disturbance WMFNs traditional reasonably -fundamental alternation to landscape territory foreseeable)
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Cumulative Effects Observed Effects Outcomes Locations of Highest Causing Factors Concern
Government -feeling harassed on the land24 All First Nations policies -loss of language for entire generations affected -Residential -loss of parenting skills and “love and care” schools capacity -registered -loss of cultural knowledge through time on traplines land and oral history -Reserves system -abuse leading to social dysfunction -Regulations Hydro-electric -loss of traditional transportation routes -The Peace River valley, developments -loss of connection between different First including areas Nations groups (e.g., Kwedacha) upstream and -safety concerns on Williston Reservoir downstream of existing -permanent loss of traditional lands hydro-electric facilities -desecration (flooding) of grave sites -mercury accumulation in fish; loss of food source -changed weather patterns -altered water flows in Peace River -reduced animal numbers and population health with some species losing their migration pathways -increased non-Aboriginal recreational access on reservoirs impacting enjoyment of the land -loss of oral history and knowledge of landscape
24 “There are so many regulations – get harassed for practicing our rights – have to show our status cards and have the right paperwork and fees, and often they are not very nice about asking and treat us poorly. Sometimes it is just too much and you do not go out [hunting]” (Verification focus group, October 10, 2012).
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The previous table provides an overarching summary of the issues on the land in Treaty 8 Territory. There are countless examples where industrial practice has impacted First Nations ability to practice our Treaty Rights.
One example can be found in dealing with oil and gas facilities. Many gas fields in the Peace River Region contain sour gas at concentrations that can be extremely dangerous. Sour gas, well sites and pipelines, completely surround some of the T8FNs community reserves, bush cabins, and camps. T8FNs members are quite familiar with the smell of rotten eggs and have even smelled it from the comforts of their own homes within the reserve. It is not uncommon for T8FNs members to see signs at oil and gas sites with pictures of death skulls and flames that read, “danger H2S,” “keep out,” “poisonous gas,” and “flammable gas.” The Oil and Gas Commission requires that emergency response zones be in place when certain sour gas developments come too near to residences. However, this does not include bush cabins or camps that T8FNs occupy for weeks or even months throughout the year.
Another example concerns the issues surrounding the Williston Reservoir. Large quantities of organic matter, including entire trees, were flooded when the WAC Bennett Dam and Williston Reservoir were constructed in the late 1960s. This caused methylmercury concentrations to increase in the water, in smaller organisms, and in the fish. It has been over 40 years since the creation of the Williston Reservoir and the concerns regarding methyl mercury are still prevalent. Over the years, the government has issued fish consumption advisories due to concerns that methylmercury in the fish could potentially lead to human health problems. Fish have always been a critically important part of the T8FNs diet at very specific times of the year and acts as a safety net, when other animals are scarce or not yet ready to harvest.
The Peace, Parsnip, and Finlay were important rivers for the supply of fish to T8FNs families. However, after the creation of the Williston and Dinosaur Reservoirs, the ability for the families to continue fishing, strongly diminished. Community wide paranoia, fear, and anxiety over methylmercury contamination are one of the main reasons why fishing in the reservoirs rarely occurs and fishing downstream in the Peace River has declined. Not only have the fish consumption advisories restricted and altered the T8FNs fishing practices, but also witnessing or hearing about the discovery of deformed fish (bumps and other growth patterns near gills and on the skin) has deterred T8FNs members from eating fish in the reservoirs.
A third example comes from the water and soil contamination prevalent in the region from a variety of industrial activities. For many decades, the T8FNs have been discovering that the animals and plants that they themselves eat or use as medicines are being exposed to unsafe and unnatural toxins. As a result, harvesters are disempowered in their abilities to provide for
November 2013 21 © 2013 Treaty 8 Tribal Association their families, community wide mistrust of country foods ensues, and anxiety over their food security continues.
A final example can come from a parent trying to teach their children the ways of the land. How can a parent or elder teach their children the ways of the land and cultural practice when their historical cultural areas have been impacted and disrupted by industry? How can they teach people to fish when we cannot eat the fish? How can we pick medicinal plants in a valley that has been flooded? How can we hunt and eat a moose when its meat has been contaminated? How can we tell stories about a place that no longer exists?
If we lose the land where we have our stories, our kids will never know.
Doig River First Nation elders Margaret Attachie, Margaret Dominic and Madeline Davis.
Cultural loss is exacerbated when it becomes increasingly difficult to practice Treaty rights. Lessons passed down from generation to generation become difficult to teach when the subject of that lesson has been removed from the landscape by industrial impacts.
When one grasps the scope and extent of industrial development in Treaty 8 Territory and the scope, magnitude and permanence of the cumulative effects, it is not surprising there is a strong and vested interest in keeping the land, water, air, animals, and plants healthy and abundant. These values are the wealth of our people and are akin to a large cash inheritance that western cultures pass down to their family and relatives. One has to look no further than the “Proposed Site C Project”.
We don't need the power, but the children of the future need the land.
Grace Metecheah
November 2013 22 SITE C CLEAN ENERGY PROJECT Panel Hearing Submission November 25, 2013
Sustainable Economic Development for the Treaty 8 First Nations
Shona Nelson, Director – Treaty and Aboriginal Rights Research Treaty 8 Tribal Association on behalf of the Treaty 8 First Nations © 2013 Treaty 8 Tribal Association
Table of Contents 1 INTRODUCTION ...... 3 2 TREATY 8 FIRST NATION ECONOMIC DEVELOPMENT INITIATIVES ...... 5 3 THE T8FNS’ OPPOSITION TO SITE C ...... 8 4 THE HISTORY OF BC HYDRO IN TREATY 8 TERRITORY ...... 10 5 SITE C AS A CONTINUATION OF HISTORY ...... 13 6 CONCLUSION ...... 19 APPENDIX A – PROFESSIONAL PROFILES ...... 21
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1 INTRODUCTION Role of Treaty and Aboriginal Rights Research The Treaty and Aboriginal Rights Research (TARR) department at the Treaty 8 Tribal Association conducts research, writes and submits specific claims or reports for past grievances where there has been a legal obligation by the Crown to fulfill its duties to the First Nations signatories to Treaty # 8. Further to that, First Nation advocacy and negotiation support is provided to Treaty 8 First Nations at their request. The TARR department has been responsible for the overall coordination and consultation management of the proposed Site C Project with BC Hydro since 2008. The proposed Site C Project should it be approved will have significant impacts on the Treaty 8 First Nations’ ability to exercise their Treaty rights in the Peace River valley.
Background Treaty No. 8, the eighth of eleven "Numbered Treaties" that were entered into by the Crown and First Nation signatories between 1871 and 1921, was first signed on June 21, 1889 at Lesser Slave Lake, Alberta. The Treaty, which covers approximately 840,000 square kilometers of territory in Northeast British Columbia, Northern Alberta, Northwest Saskatchewan and southern portions of the Northwest Territories, guaranteed various rights to signatory First Nations. Among these rights is the positive duty of the Crown to consult with First Nations on decisions that affect their treaty rights, and to seek reconciliation between the interests and objectives of First Nations and the objectives of the Crown. The scope and strength of these rights, protected by the Constitution of Canada, have been confirmed by recent decisions of the Supreme Court of Canada. Fully one half of the articles of the "numbered" Treaty Agreements deal with rights that could be understood as “economic” in nature. The Crown guaranteed the provision of equipment, resources, and expertise to maintain the existing First Nations' economies (hunting, fishing, trapping and gathering) and to develop the foundations to build modern economies. First Nations were assured under Treaty that they would be provided with:
• Specific lands set aside as Indian reserves held by the federal Crown for the exclusive benefit of First Nations for the management of economic resources and for wealth creation;
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• Support and assistance to establish First Nations' economic institutions (as intended through the education and farming assistance provisions)1 The Treaty 8 First Nations (T8FNs) and their membership are entrepreneurial and have participated for decades in the development of the local and regional economies of Northeast British Columbia. This history of economic development has included hunting, guiding, trapping, fishing, oil and gas, agriculture and ranching, mining, seismic and forestry, to name a few. T8FNs participation has always been predicated on their closely held values of environmental and cultural sustainability. These values attempt to balance and reconcile the need for cultural continuity with the desire to participate in the modern economy. At times, the desire to ensure cultural continuity and the continued possibility to practice their Treaty rights has brought the T8FNs into conflict with some development proposals. An example of such a conflict concerns the development of the hydroelectric resources on the Peace River. The Peace River and its valley hold both an environmental and cultural significance to the Dane-zaa people. BC Hydro and the Crown’s economic development agenda has historically been and continues to be in conflict with T8FNs’ values and perspectives on economic development. The proposed Site C Project is incompatible with the needs, interests and values of the T8FNs and as such, the Nations are opposed to the development of this proposed Project. This submission highlights reasons for the opposition of the T8FNs to the Site C project and provides other examples of economic engagement by the Treaty 8 First Nations with other resource developers that contrast the historic, recent and future opportunities offered by BC Hydro.
1 Federation of Saskatchewan (www.fsin.com/index.php/economic-development.html, accessed November 20, 2013)
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2 TREATY 8 FIRST NATION ECONOMIC DEVELOPMENT INITIATIVES Treaty 8 First Nations are involved in several economic initiatives and are not opposed to economic development that meet the objective of reconciliation Tribal Chief Liz Logan, who represents the Chiefs and communities affiliated with the Treaty 8 Tribal Association, has been interviewed several times in the media and has articulated the position of the T8FNs: Chief Logan emphasized that the six Treaty 8 First Nations are not opposed, in principle, to the economic development of their territories. “We are fully aware that the construction and operation of a pipeline, for the transportation of Alaska North Slope gas through Treaty 8 British Columbia could, in various ways and in the proper circumstances, provide unique and unprecedented opportunities for the further economic development of our communities.” CT8C First Nations understand that any potential relationship must offer benefits to both parties. “However,” stressed Chief Logan, “any pipeline through Treaty 8 British Columbia must be constructed and operated in a manner consistent with our existing treaty rights, with appropriate measures having been taken to alleviate social, economic and environmental impacts, in full partnership with us and subsequent to full and meaningful consultation and accommodation on these matters having taken place with us at all stages of the process. These”, she said, "Are our 'must haves'."2 Economic Development opportunity “must haves” for Treaty 8 First Nations are all critical components to achieving reconciliation:
• Meaningful consultation for all economic activities in the traditional territory so that Treaty and Aboriginal rights are fully accommodated; • A fair share of benefits from resources removed from T8FN traditional territory;
2 Oil Sands Truth, http://www.marketwired.com/press-release/council-of-treaty-8-chiefs-note-passage-of-alaska- gasline-inducement-act-654917.htm
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• A diverse economy consistent with environmental, cultural and economic values; • An economy that supports increased levels of family and community well- being; • Reduced barriers to business success by T8FNs membership; • Employment and career opportunities for the T8FNs membership; • Reduced economic dependency by the T8FNs on outsiders; and • Increased standard of living within the communities.3 As indicated above, Treaty 8 First Nations have a history of participating and engaging in the economic opportunities available in the economy of Northeast British Columbia. The T8FNs and their membership have been involved in natural resource development in the following sectors:
• Oil and Gas (includes exploration, production, maintenance and service) • Seismic • Forestry • Mining • Transportation In the past and present, membership has either participated in resource development as wage earners, entrepreneurs/contractors or employees of band owned or joint venture companies. Primarily, the work has been seasonal labouring, falling/bucking, slashing, clearing road right of ways, heavy equipment operations, truck driving, environmental monitoring, camp catering/attendants and first aid. Advancement to management level positions or professional/technical opportunities have been limited and this can in part be attributed to the lower education levels of the membership and lack of opportunities for mentorship and on-the-job training. More traditional sources of employment and business have included:
• Hunting and Guiding
3 Treaty 8 First Nations (T8FNs) Community Assessment Team. 2012. Telling the Story of Change the Dane-zaa Way, p.132. (Site C EIS, Volume 3, Appendix b7).
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• Trapping • Agriculture and Ranching First Nation Band Council administration, including the Lands Offices, is also a main employer of the T8FNs membership. Members are employed in technical lands and referrals, monitoring, health, education, finance, housing, capital works, and economic development. The T8FNs have learned from their experiences with industry and resource development, and have compelled a paradigm shift with large industry so as to receive a greater share of the benefits attributable to resource development, including more opportunities for their membership to secure long-term and sustainable employment or contracting/business opportunities. Examples of these types of initiatives include:
• Impact Benefit Agreements with profit sharing, education, employment and business opportunities. • Joint ventures with infusion of capital to support majority owned band companies. • Right of first refusal contract opportunities. • Equity participation or commercial agreements in relation to the project. WMFNs has expressed a strong commitment to sustainable economic development, including promoting a community garden, planning for a commercial greenhouse for indigenous plants, and expressing a vision for a green energy community…All in all, there is an emphasis for the community to move from a reactive, labour-oriented resource extraction economy involved at the front end of development (e.g., cutting seismic lines) toward value-added, higher skill and long-term revenue-generating opportunities (e.g., equity shares in resource development companies.4 Examples of this paradigm shift are best illustrated by the variety of companies that the T8FNs have in operation:
• Kihew-Sas Ventures (T8FN member owned company with joint ventures for heavy civil and engineering projects)
4 Treaty 8 First Nations (T8FNs) Community Assessment Team. 2012. Telling the Story of Change the Dane-zaa Way, p.158. (Site C EIS, Volume 3, Appendix b7).
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• Treaty 8 Development Corporation (T8FN member owned corporation for real estate and wind tower development) • Treaty 8 Energy Corporation (Energy Development Company) • Six Nations Ventures (Log Yard Company at Canfor OSB) • Three Nations Ventures (Forestry Service) • Doig River Timber (Forestry) • Alamo (seismic, facility construction, maintenance, first aid and safety) • Doig River Environmental (reclamation) (Landfill partnership with CCS/Tervita) • Doig River Cattle • Halfway River Ventures (gravel operations) • Halfway River Ranch • Prophet River Operations • Dunneza Ventures (WMFNs company that provides contractual services for the minerals and forestry sectors. Industry agreements with Canfor, Tembec, Peace River Coal) • WIIS Broadband (West Moberly Indiginet) • Dokie Windfarm Project (West Moberly) • Bear Mountain Windfarm Project (West Moberly) • Peace River Coal Partnership (West Moberly – IBA) • Tsay-Keh-Ne-Cheleh Ranch • FNPLP-First Nations Pipeline Group LP – Pacific Trails Pipeline – Equity Participation in Pipeline The Treaty 8 First Nations are currently in negotiations for equity participation in large- scale LNG projects proposed in the territory with proponents such as Spectra Energy and TransCanada. It is evident from the above-noted list that T8FNs are not opposed to economic development or resource development for that matter, but the projects must meet the criteria for sustainable economic development established by the T8FNs and must further the objective of reconciliation.
3 THE T8FNS’ OPPOSITION TO SITE C The Treaty 8 First Nations are opposed to Site C because its effects threaten their cultural sustainability The connection between the previous dams and the cultural decline of the Dane-zaa is strong and evident, as many T8FNs members polled and interviewed in the Stage 2
November 2013 8 © 2013 Treaty 8 Tribal Association consultations for the proposed Site C Project, in the Traditional Land Use Study and in the First Nation Community Assessment have stated that opposition to the Site C project relates to the cumulative effects of the prior hydroelectric developments. As noted in the T8FNs Community Assessment: When W.A.C. Bennett and Site One [Peace Canyon Dam] were flooded, the Indians lost, in addition to the commercial interest, they lost valuable resources that were related to their subsistence activities…A clear legacy from the first two dams is the loss of the inundated zones for traditional activities, a complete loss of transportation corridors, a severing of ties of communities to their cultural practices in the valley. 5 In a 2009 T8TA survey6 of over 700 members, hydro-electric development was ranked first in terms of the types of developments the T8FNs want to see stopped in the future.
The Williston Reservoir has had profound and adverse effects on the environment and on the T8FNs. First Nations still suffer the lasting and many permanent effects of dislocation, loss of territory, loss of harvesting areas, loss cultural sites, disruptions in travel routes, increased methyl mercury contamination, etc.7 For the T8FNs, the connection to the river valley is strong and the protection of their cultural and spiritual sites for intergenerational transmission is integral to the cultural sustainability of the Dane-zaa people. Elder Alex Chipesia from Prophet River First Nation states: the stories are buried are under the water, they are gone, we can’t tell them anymore… 8
5 Treaty 8 First Nations (T8FNs) Community Assessment Team. 2012. Telling the Story of Change the Dane-zaa Way, p.88. (Site C EIS, Volume 3, Appendix b7).
6 First Light Initiatives. 2009. T8FN Site C Survey.
7 Treaty 8 First Nations (T8FNs) Community Assessment Team. 2012. Telling the Story of Change the Dane-zaa Way, p.86. (Site C EIS, Volume 3, Appendix b7).
8 T8TA. 2011. Past Infringements Interview with V. Hofmann and S. Nelson.
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Constructing Site C will further diminish their ability to share the Dane-zaa stories about the remaining cultural and spiritual sites that will be flooded by the proposed Site C Project. The proposed Site C Project is in conflict with the cultural sustainability of the Dane-zaa people and as such they are opposed to another dam on the Peace River.
4 THE HISTORY OF BC HYDRO IN TREATY 8 TERRITORY BC Hydro has a long history of failing to provide equitable and sustainable benefits to affected Treaty 8 First Nations. A key informant during the T8FNs Community Assessment for the Site C Project noted the following: These guys (the T8FNs) got nothing when the Bennett Dam and the Peace Canyon Dam were built, they got absolutely nothing. A few traplines were bought out and that was it.9 T8FNs membership has consistently raised the lack of compensation as another effect of previous BC Hydro developments. This includes compensation for loss of land use, employment, contracting opportunities, business procurement and resource revenue sharing. Membership has also recounted promises that electricity from the WAC Bennett Dam would be free for area First Nations but that has never been the case, and high electricity costs are an ongoing concern for membership.10 To date, BC Hydro has not provided equitable benefits to the nations from the two previous dams. There has been no compensation for past infringements or offers of royalty sharing from the profits derived from the sale of power. Additionally, the Province of BC in its negotiations with Treaty 8 First Nations for the Economic Benefits Agreement (EBA) did not include resource revenue sharing from the monies it receives from BC Hydro. The proposed Site C Project is the third dam on the Peace River by BC Hydro. Damming the Peace and the Columbia rivers’ has been on the provincial government
9 Treaty 8 First Nations (T8FNs) Community Assessment Team. 2012. Telling the Story of Change the Dane-zaa Way, p.91. (Site C EIS, Volume 3, Appendix b7).
10 Treaty 8 First Nations (T8FNs) Community Assessment Team. 2012. Telling the Story of Change the Dane-zaa Way, p.91. (Site C EIS, Volume 3, Appendix b7).
November 2013 10 © 2013 Treaty 8 Tribal Association and BC Hydro’s economic development regime since the 1950’s. Premier W.A.C. Bennett’s “Two Rivers” policy was and remains an attempt to shift control away from the federal government and towards the province of British Columbia in regards to resource development in the province.11 The Premier’s “Two River’s” policy may have benefitted the provincial coffers, but the devastation to the local First Nation economy was significant. For Aboriginal people, the environmental changes caused by the damming of the Peace River meant dependence, isolation, alienation, and illness. Aboriginal hunting and fishing grounds around the Fort Grahame and Finlay Forks areas were severely impacted by ecological change. Many species of fish as well as mountain caribou and muskrats were no longer available for Aboriginal consumption or traditional use. The construction of the W.A.C. Bennett Dam and the Williston Reservoir resulted in extensive changes to the environment and landscape in and around the Peace River region and the Rocky Mountain Trench. The filling of the Williston Reservoir flooded out lands previously used by wildlife, causing many animals to drown due to inundation and excess debris in the reservoir, consequently disrupting migration patterns and isolating herds. This in turn substantially diminished the population of wildlife, dramatically impacting the First Nations’ ability to pursue their usual vocations of hunting, fishing and trapping, which was their primary source of income and sustenance. In addition, trap lines owned by First Nations’ were also submerged and destroyed, further adding to an economic loss that saw the end of this traditional vocation for some. During the planning, development and construction of the WAC Bennett Dam and the Peace Canyon Dam, BC Hydro and the Crown also failed to consult with the T8FNs on the impact of the flooding to their lands, resources and mode of life. The T8FNs ability to practice their rights (including economic rights) and engage in cultural activities along the Peace River valley was effectively curtailed, while no compensation, mitigation or accommodation was offered for their loss. This continued disregard and lack of acknowledgement by BC Hydro of the impact to First Nations has caused distrust and concern with the motives of BC Hydro. As one Elder notes:
11 Loo, T. 2004. People in the Way: Modernity, Environment and Society on the Arrow Lakes, BC Studies, p. 164.
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…there are still bad feelings, mistrust and deep hurt from the bad experiences where dams on the Peace River flooded First Nation graves.12 Membership and leadership regularly question why BC Hydro would want to consult on the Site C Project prior to addressing their concerns about the impacts from the first two dams. In 2013, the T8FNs Site C team posed the following question to BC Hydro: How many Treaty 8 First Nation members and/or contractors have, currently or may be employed or have work contracts on the following projects?
• GM Shrum upgrades • Fort Nelson Generating Station Upgrade • WAC Bennett Dam projects (i.e. Maintenance etc.) • Peace Canyon Dam projects
• DCAT BC Hydro could not provide data to the level of subcontracting and individual employment as it was not available, and BC Hydro only had general information from 2006 to present. Contracts between BC Hydro and Aboriginal Businesses affiliated with Treaty 8 First Nations: From 2006 to present, BC Hydro has engaged Aboriginal Businesses affiliated with Treaty 8 First Nations (Blueberry River, Doig River, Fort Nelson, Halfway River, McLeod Lake, Prophet River, Saulteau and West Moberly) on contracts with a total value of $20.9M. These contracts include work on the following projects and operations:
• Site C Clean Energy Project • Fort Nelson Generation Upgrade (FNGU) Project
12 Treaty 8 First Nations (T8FNs) Community Assessment Team. 2012. Telling the Story of Change the Dane-zaa Way, p.90. (Site C EIS, Volume 3, Appendix b7).
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• Dawson Creek Area Transmission (DCAT) Project • Water License Requirements (WLR) Boat Ramps • GMS Rip Rap
• WAC Bennett Spillway • Road Upgrade and Maintenance Services • Vegetation Management • Snow Removal Site C Heritage Program – Aboriginal Employment From 2010 to present, members of Treaty 8 First Nations have been employed as field assistants in the Site C heritage program. Please refer to EIS Volume 4, Appendix C, Heritage Report for details. As of September 6, 2013, 16 members of Treaty 8 First Nations have worked as archaeological field assistants during the 2013 field season, for a total of 2095 person-hours. (Email correspondence from Aliana Slot, BC Hydro, to Shona Nelson, T8TA, 2013) One can look at this information and logically infer that there is and has not been any long term, sustained employment for Treaty 8 First Nation membership, it is short term contracting and piecemeal employment.
5 SITE C AS A CONTINUATION OF HISTORY Site C cannot provide equitable and sustainable benefits to the Treaty 8 First Nations This submission asserts that the T8FNs will be the population that will be disproportionately affected by the negative and permanent changes associated with the Site C Project, and as such the Treaty 8 First Nations must have access to equitable and sustainable benefits. There is little evidence, and no past history of good practice BC Hydro can point to in the Environmental Impact Statement, to indicate that this is going to be the case.
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What we do know is that T8FNs membership are less likely to have the educational backgrounds, employment history and requirements, training certifications, and basic capacity (e.g., ground transportation or business capacity) to take advantage of this Project in comparison to their non-Aboriginal counterparts.13 This T8FNs assertion is supported by the following: 1. Training, employment and business opportunities for T8FNs members associated with construction of the Site C Project are of short duration and those associated with operations are minimal. BC Hydro claims that construction of Site C would create approximately 10,000 direct construction jobs, and approximately 33,000 total person-years of employment through all stages of development and construction.14 These are all short term, labouring, service and contracting type of positions, with subcontractors to large civil engineering firms with no real long term skill development or sustained employment for T8FN membership. Additionally union requirements of these large companies will significantly reduce the opportunity for members to obtain meaningful employment. The reality of the situation is that there will only be 25 permanent direct jobs during operations.15 BC Hydro’s proposed enhancement measures are as follows: Where identified by Aboriginal groups as an interest, BC Hydro will consider commitments respecting capacity building, education, and training associated with Aboriginal participation in Project labour market opportunities. Specific measures include:
• BC Hydro will support training, industry and Aboriginal partnership opportunities in the region; for example, BC Hydro in partnership with the North East Native Advancing Society (NENAS) secured funding from Industry Training Authority (ITA) to support North East Aboriginal
13 Treaty 8 Tribal Association. May 31, 2013. Comments on the EIS Addendum - General Comments, p. 23
14 BC Hydro. 2013. Site C Clean Energy Project: Business Case Summary, p. 28 (http://www.bchydro.com/content/dam/BCHydro/customer-portal/documents/projects/site-c/site-c-business-case- summary.pdf).
15 Ibid., p.28.
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Trades Training (NEATT), an essential skills and pre-trades training program that began its first intake in the spring of 2012.
• BC Hydro will support NENAS with $100,000.00 in funding over two years (2013-2014) to support trades training under its NEATT program.
• BC Hydro will dedicate $500,000.00 of the $1 million provided to Northern Lights College to Aboriginal student bursaries
• BC Hydro will develop a plan for inclusion of Aboriginal persons in its project contracted workforce, including communication of employment opportunities, and evaluation criteria for hiring and training Aboriginal persons in contractor procurement packages16 These training and educational supports for Aboriginal people are insufficient to overcome the current barriers to employment that have been clearly enumerated in the T8FN Community Assessment Baseline Profiles. What is concerning to the T8FNs is that all of these mitigation measures are for “Aboriginal” people, not specifically targeted for T8FNs membership. There is no guarantee or commitment to the T8FNs that these piece-meal programs are even accessible to them. NENAS is an organization that does not specifically focus on the employment and training needs of the T8FNs, the nations most affected by the proposed Project. They deliver programs on a first come first serve basis to “Aboriginal” people and with their onerous application process, it is very unlikely that T8FNs membership will even apply or participate. A better alternative is the model that West Moberly First Nations and Peace River Coal used where the community, in partnership with the proponent and the local college, worked together to develop a curriculum of Mining Essentials, training and real long- term employment at the mine. To date, there are several members employed at the mine and they are in the process of another similar initiative with Teck Coal. Grassroots and community driven initiatives achieve greater success than pre-packaged programs offered by a service delivery agent. BC Hydro could invest in this type of initiative for the construction trades and/or transport so, at minimum, members could use the skills
16 BC Hydro. 2013. Site C Clean Energy Project EIS: Volume 3, Section 17, p. 25.
November 2013 15 © 2013 Treaty 8 Tribal Association training, certification and experience to seek future employment with BC Hydro projects or with other resource developers. Providing Northern Lights College with $500,000.00 in bursaries for “Aboriginal” people poses the same concern for the T8FNs, namely no guarantee of support for its membership to access training, funding and employment opportunities. Business procurement requires more than just a “plan” to ensure T8FNs entrepreneurs have the opportunity to secure contracts for construction, transportation or services. As with the two previous items, it is not T8FNs specific and there is no right of first refusal option for First Nation companies. Despite the magnitude of the significant adverse effects of the proposed Project on the rights of the T8FNs, the only possible employment benefits to the T8FNs membership is an opportunity to work on some short term construction jobs. This is in conflict with T8FNs values and ‘must haves’ with respect to sustainable economic development. 2. There is no possibility of equity participation, which is now standard for IPP projects in alternative portfolios. BC Hydro has indicated to the T8FNs that they will not entertain the option of equity participation where the First Nations would receive a percentage of the revenues derived from the sale of power from the Site C Project because it would be owned by a Crown Corporation. This is interesting to note as there are several other examples of Crown Corporations in Canada who have chosen another path to fully engage with the First Nations. Manitoba Hydro has several equity partnerships with First Nations, including in relation to the recently completed Wuskwatim Hydroelectric Generating Station. The Wuskwatim Project was originally proposed as a large-scale hydroelectric project with considerable flooding on the Burntwood River. However, the desire of Manitoba Hydro and the Nisichawayasihk Cree Nation to develop a project that would meet the interests of both parties ultimately resulted in a low-head development of 200 MW with no flooding above the historic flood line above the natural conditions on the river. As cited by the First Nations Energy and Mining Council, the following policies, measures, features and outcomes make Wuskwatim a leading example of Aboriginal involvement and participation in major resource development in Canada.
• Developed as equity partnership between Manitoba Hydro and - Nisichawayasihk Cree Nation - NCN. Local First Nation given opportunity to
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own 25 to 33.3% share of a billion dollar project. Fair interest loans provided by electric utility to cover large portion of First Nation financing requirements. • NCN treated as full partner throughout the detailed project planning process, influenced decision to adopt no flooding design for the project and minimize impacts on the environment and resource use. Use of traditional knowledge, Ethinesewin, was an essential part of the project planning process. • NCN given right to veto the project though community vote on a project development agreement defining how the community would participate in project opportunities and specifying measures for addressing project adverse effects. • NCN given right to veto the project though community vote on a project development agreement defining how the community would participate in project opportunities and specifying measures for addressing project adverse effects. • In the end, a community vote was positive and the project allowed to proceed. • Over $100 million of construction contracts awarded directly to local First Nation. • NCN was part of proponent team involved in preparing the project environmental impact assessment, conducting project related public involvement process and participating in project public hearings. • Proponent and senior governments funded $8.2 million training centre located in local First Nation community. • Traditional ceremonies being conducted prior to start of construction activity at culturally important locations. This is the most elaborate ceremonies program ever conducted on a major construction projects. • Key local First Nation players were highly competent and experienced, shaping the overall approach and direction taken by First Nation to the project. Same key players from First Nation engaged throughout multi-year planning process. • Has one of the most comprehensive, complex set of development agreements between a proponent and Aboriginal community ever produced. Over 1300 pages of agreements define and govern the ownership, financing, construction, operation, management and other aspects of the Wuskwatim hydroelectric project.
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• Constructive, positive working relationship established between electric utility initiating the project (Manitoba Hydro) and key local First Nation with respect to proposed development. Electric utility had to overcame strong negative attitude towards it by First Nation due to adverse impact of past hydro power development and First Nation had to overcome deep seeded distrust of electricity utility.17 The approach taken in relation to the Wuskwatim Project is one that could be taken with the T8FNs in the development of a smaller project that reconciles the needs of BC Hydro for electricity with the rights of the T8FNs. One can clearly note the significant difference in benefits to the First Nations, as well as the effort to minimize impacts to acceptable levels. In this day and age, it makes business sense to partner with First Nations in economic development, not to distribute the old “beads and trinkets” approach as proposed by BC Hydro, while imposing the maximum possible adverse effects.
3. There is no policy on royalty sharing, which contrasts with mining royalty sharing The lack of an opportunity for First Nation royalty sharing in the proposed Site C Project contrasts with the benefits First Nations have received from mining projects. Two examples are described below: In August 2010, British Columbia became the first province to share royalties collected from specific mining projects with First Nations. The government of British Columbia announced two separate agreements with First Nations to share a portion of provincial mining royalties derived from the production of mining projects currently under development. The first agreement, with the Stk’emlupsemc of the Secwepemc Nation, pertains to the New Afton Mine near Kamloops. The government announcement indicates the agreement will allocate approximately $30 million, just under one-third of the total provincial royalties anticipated to be collected over
17 FNEMC. 2009. Aboriginal Involvement and Participation in Wuskwatim, Hydroelectric Generating Station: A Case Study, p. 1-2.
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the expected 12-year life of the project. The New Afton Mine, a copper- gold project owned by New Gold Inc., is located at the site of a historic open pit mine and involves new underground operations.18 The second agreement, with the McLeod Lake Indian Band, is in respect of the Mt. Milligan Mine west of MacKenzie. The government announcement says it involves a reported $35 to $38 million in provincial mining royalties, anticipated to be distributed to the band over the estimated 23-year life of the project. The Mt. Milligan project has been developed to this stage by Terrane Metals Inc., which has been recently acquired by Thompson Creek Mining Ltd.19 4. The proposed Project is not positioned to benefit local communities in any equitable or sustainable way As evidenced by the recently signed Peace River Regional District Agreement, which provides less than .5% of the profits of the Project to the local region, the Project is not positioned to benefit affected communities in any equitable or sustainable way. The agreement signed by the PRRD is a good example of the minimal benefits that BC Hydro is willing to compensate an already stretched regional district and municipalities. The agreement which is intended to offset increased costs to regional services will not sufficiently offset the costs the PRRD will incur for municipal services should the proposed Project proceed.
6 CONCLUSION The Dane-zaa are the original Peoples of the Peace River valley and were given the responsibility for their territory, lands, resources, waters and air to take care of for their children and generations to come. Resource development and the cumulative effects of all industries have taken its toll on the environment and the cultural sustainability of the Dane-zaa. Sadly, the economic benefits generated from this development have not been shared equitably by the Crown with affected First Nations. BC Hydro has not addressed past infringements and continues to use a “beads and trinkets” approach to benefits and economic development when it comes to the T8FNs.
18 CIM Magazine. November 2010, 5:7, p. 1.
19 CIM Magazine. November 2010, 5:7 p. 2.
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Alternatively, there are other resource developers that use a better approach to development and working with First Nations for the mutual benefit of all parties. This submission is submitted to the Joint Review Panel to inform the Panel Members that T8FNs are opposed to Site C because of the continued erosion of their culture and Treaty rights by BC Hydro. The Site C project is not environmentally, culturally or economically sustainable for residents of the Peace River area or the province of British Columbia and it does not achieve reconciliation. There are better ways to produce energy both environmentally and economically that will meet the need and provide economic benefits for all. We hope that you consider our position favorably.
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APPENDIX A – PROFESSIONAL PROFILES
Shona Nelson
10420-109th Street, Fort St. John, BC. V1J 0J3 | 250-261-8920 | [email protected]
EDUCATION Justice Institute of British Columbia Certificate in Applied Leadership and Conflict Resolution 2013
University of British Columbia Bachelor of Arts-Political Science/Public Administration 1992-1995
Northern Lights College Social Sciences-University Transfer Program 1990-1992
North Peace Secondary School High School Graduation 1990
WORK EXPERIENCE Treaty 8 Tribal Association Director of Administration/Treaty & Aboriginal Rights Research 2006 to present Responsible for the overall administration of the Tribal Association.
North East Native Advancing Society Employment Training Program Coordinator 2000-2006 Administered Human Resources Development Canada funding to support training to employment programs for Aboriginal people in Northeast BC.
Employment Connections Employment Counselor 1997-2000 Administered Human Resources Development Canada funding to support training to employment programs for unemployed persons in Fort St. John and area.
School District #60-Key Learning Centre Teacher’s Assistant 1995-1997 Provided career counseling and resume writing services to adult learners.
RELATED EXPERIENCE Director Kihew-Sas Ventures Present Director at large for a Treaty 8 First Nation Development Corporation
Director Northern Lights Recovery Centre Present Director at large for a drug and alcohol rehabilitation centre.
Vice-President North East Aboriginal Business Centre 2011 to present
Director Industry Council for Aboriginal Business 2011-2013
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