Final Arguments of Łíídlįį Kų́ę́ First Nation

to the National Energy Board

regarding

Enbridge Line 21 Pipeline Segment Replacement Project NEB Hearing MH-001-2017

NEB OF-Fac-Oil-E102-2017-01 01

November 9, 2017

I. Introduction ...... 2 II. The Project ...... 4 III. NEB Decisions Required and Relevant Law...... 5 A. Regulatory Decisions under the National Energy Board Act ...... 5 B. Aboriginal Consultation and Accommodation Decisions ...... 5 IV. Łíídlįį Kų́ę́ Dene’s Rights and Way of Life ...... 8 A. Dene Land Rights ...... 8 B. Dene Harvesting Rights ...... 9 C. Dene Fish Harvesting Rights ...... 11 V. Project Impacts on Dene Rights and Way of Life ...... 12 A. Impacts of Drilling Process and Work Camps ...... 12 1. Impacts on Dene Land Rights ...... 12 2. Impacts on Wildlife and Other Harvesting...... 13 3. Impacts on Fish and Aquatic Habitat ...... 15 5. Impacts on Community Safety...... 16 6. Permafrost Impacts ...... 17 B. Impacts of Barging ...... 22 VI. Enbridge’s Failure to Address Dene Concerns ...... 24 A. Requirement to Mitigate or Accommodate Impacts on Dene Rights ...... 24 B. Enbridge’s Failure to Mitigate, or Accommodate Unmitigated, Impacts ...... 25 1. The Generally Vague and Non-Specific Responses From Enbridge ...... 25 2. Failure to Provide Sufficient and Timely Information ...... 27 3. Failure to Accommodate Regarding Work Camp Impacts on Women and Girls ...... 28 4. Failure to Mitigate and Accommodate Regarding Wildlife and Harvesting Impacts ...... 29 5. Failure to Mitigate and Accommodate Regarding Fish Harvesting Impacts ...... 30 6. Failure to Accommodate Regarding Cultural Site Impacts ...... 31 7. Failure to Accommodate Regarding Integration of Indigenous Knowledge ...... 31 8. Failure to Accommodate Regarding Local Employment and Contracting ...... 32 9. Failure to Mitigate and Accommodate Regarding Spill Risks...... 33 VII. Legacy Issues ...... 35 VIII. Conclusion ...... 37 Table 1: Table of Enbridge Commitments and Non-Commitments ...... 38 Table 2: Proposed Project Conditions ...... 54

Final Arguments of Łíídlįį Kųę́ ́ First Nation to the NEB - Hearing MH-001-2017 Page 1

I. Introduction

1. The Łí́í́dlįį Kų́ę́ First Nation (“LKFN”) makes this submission in respect of Enbridge’s proposed Line 21 Pipeline (also known as the Norman Wells Pipeline) Replacement Program (the “Project”).

2. The Project occurs in the heart of the Łí́í́dlįį Kų́ę́ Dene territory, on lands which the Dene have occupied for 30,000 years and which is home for the Dene, who told the NEB in the hearing that:

The houses you see around here in Fort Simpson and the houses in other towns and villages are not the only place that we have. If you look at it holistically is that our home is the land. It is our kitchen, our living room, our bedroom. The land is our shopping mall, our church, our pharmacy, our recreation centre. It is a place where we go to find out who we are. Who we are is not just humans but humans connected with the animals, the water, the earth, the fish, the birds, and even the rocks.

So we find it necessary to speak out about what is in the room and gauge what Enbridge is doing. Enbridge claims that they know the land and the water because they have been here for 40 years and because they have done some technical studies in the last six months. This project is happening in the middle of our kitchen, our pharmacy, and church. When it harms the earth and the water and animals it hurts us.

A87283 Hearing Transcript Vol. 4 at para. 3678 - 3679

3. During the hearing, the NEB, Enbridge and the Parties often referred to “Aboriginal and First Nations” rights that could be impacted by the Project. For the Łí́í́dlįį Kų́ę́ Dene, this Project involves more nuanced and critical impacts than those defined as “Aboriginal rights” in Canadian law. It involves the Dene way of life and the sacred obligations of the Dene to the land and water in the heart of the Dehcho. The sacred relationship of the Dene and their land gives rise to sacred obligations, about which the Dene reminded themselves and the non-Dene during the hearing:

We remember the testimonies of our elders at the Berger Inquiry. We remember what our elders told us about the treaty hearings in 1921. These Elders so clearly reminded that whatever we do on the land has to be in line with Dene sacred obligations. If it is not in line with Dene sacred obligations for the land, the animals, and the waters, then it cannot happen. That is a sacred undertaking that we must uphold. Today we carry that intergenerational message forward.

A87283 Hearing Transcript Vol. 4 at para 3677.

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4. Written evidence filed by LKFN and other Dene parties in this hearing, oral Dene evidence and the cross examinations of Enbridge confirmed the conclusion already reached in the Indigenous Knowledge and Land Use Study conducted for the Project:

[S]hould the Project be approved, there will be impacts to LKFN Aboriginal and Treaty rights and interests […The Dene of Łí́í́dlįį Kų́ę́] have used, currently use and will continue to use the lands and waters surrounding the Project area and that Dene … cultural identity and wellbeing is inherently connected to this area.

Evidentiary results clearly demonstrate that the LKFN community has the potential to experience many direct and indirect negative impacts from the Project components.

A87101 LKFN Indigenous Knowledge and Land Use Study, pg. 68 and 70.

5. The determination of whether NEB approvals should be granted for a pipeline project is not based on whether or not a Project has impacts. Rather, the determination must be based on whether those impacts are sufficiently mitigated or addressed to ensure that a Project is in the public interest [emphasis added].

6. In the context of a Project with impacts on Aboriginal and treaty rights, the focus of the NEB inquiry is not primarily or only on the environmental impacts of the project, but also on the linked impacts on Dene land, harvesting, cultural and other rights. As the Supreme Court reminded us in Clyde River v. Petroleum-Geo Services Inc, it is in the public interest to ensure that constitutional and legal obligations protecting Dene rights are met.

Clyde River v. Petroleum Geo‑Services Inc., 2017 SCC 40 (“Clyde River”) at para 40 and 45.

7. LKFN does not dispute that the Project will have impacts. LKFN’s concern is that the Dene have the opportunity to fully understand these impacts and that unacceptable impacts be mitigated or, where mitigation will not completely address the scope of impact, accommodated. As LKFN concluded in its oral final arguments:

Liidlii Kue are not against Enbridge, but the Dene are for protection of the land and the Dene way of life. The Dene are for fairness in their relationship with Enbridge. The Dene are for a real partnership and relationship and reconciliation. The Dene are for the opportunity to do the right thing here. Enbridge has the chance to do the right thing and the Board has the chance to do the right thing. Please take it.

A87283, Hearing Transcript Vol. 4, para 4195 – 4196.

8. As detailed in these written arguments, the written and oral evidence in the hearing demonstrates that despite the documented impacts on Dene land, hunting, harvesting, cultural and other rights, Enbridge provided only vague and general promises to “do

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the right things”, but failed to make specific commitments to any particular measures to mitigate or accommodate Dene rights. Instead, Enbridge indicated it would address Dene concerns “outside this [NEB] process.” Perhaps due to this position, the evidence before the NEB shows that Enbridge failed to fully and properly assess the scope of impacts of the project on Dene land and way of life and failed to demonstrate it had addressed the impacts on Dene rights through specific commitments to make appropriate accommodations.

Table 1 of this document - Enbridge Commitments and Non- Commitments.

A87283, Hearing Transcript Vol. 4, para 4192.

9. Based on the evidence in the hearing, LKFN’s submits that, at this point, the Project should not receive the NEB approvals for construction, use of work camps, or decommissioning. Consultation with the Dene– and as importantly – accommodation of Dene rights is legally required before the NEB approves this project. These requirements have not been fulfilled.

Clyde River at para 39.

10. LKFN recommends a number of specific conditions for the Project, which are listed in Table 2 at the end of these arguments.

Table 2 of this document: Proposed Project Conditions

II. The Project

11. Enbridge proposes to install up to 2.5 kilometres of new 323.9 (NPS 12) pipeline under the Mackenzie River. The new pipe will be installed using a trenchless crossing method called horizontal directional drilling (HDD). Enbridge is also applying to decommission the section of pipeline that is being replaced. The company plans to transport the necessary equipment and materials to the worksite by truck and barge and to carry out the proposed activities within the existing right of way.

12. The Project also occurs in the context of a 35-year relationship between the Dene and Enbridge with respect to the installation and operation of the existing pipeline which is being repaired. As the Dene testified to the NEB,

Our experiences since 1982 when the first hearings for this pipeline were held is that there has been no respect for Dene. This pipeline was built without our consent back when interprovincial pipeline and the federal government and the Northwest Territory administration reached an agreement that put us on the sidelines and ignored our concerns. So now we are at this hearing.

We feel the weight of these unresolved issues. We feel that this huge thing in the room that no one is talking about up here. And we ask

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ourselves what is the difference between what had happened in 1985 and what is happening right here in this room, in this hearing, with this pipeline project.

A87283, Hearing Transcript Vol. 4, para 3682 to 3683

III. NEB Decisions Required and Relevant Law

A. Regulatory Decisions under the National Energy Board Act

13. In support of the Project, Enbridge has applied to the National Energy Board (the “NEB” or “Board”) for approvals pursuant to the following sections of the National Energy Board Act (“NEB Act”):

 An order allowing deviation, change or alteration of facilities, pursuant to Section 45 of the NEB Act  An order exempting the project from National Energy Board Onshore Pipelines Regulations (“NEB OPR”) pursuant to Section 48 of the NEB Act  A facilities exemption order pursuant to Section 58 (exempting the project from the provisions of paragraph 30(1)(b), and sections 31 and 47 of the NEB Act)  An order to decommission a segment of the existing pipeline pursuant to section 45.1 of the NEB OPR  Such further order or relief as Enbridge may request or the Board may deem appropriate pursuant to section 20 of the NEB Act.

A82026-2 Section 58 Application; A82026-1 Letter to the NEB re Line 21; A82026-3 Section 45.1 Decommissioning Application

14. In its original application, Enbridge also filed a request for an exemption from the leave to open requirements of Section 4y of the NEB Act. On September 22, 2017, Enbridge wrote a letter to the NEB, withdrawing this request.

A86245-1 Letter to NEB – Update to Application and Witness List, p. 2.

B. Aboriginal Consultation and Accommodation Decisions

15. The NEB has the legal authority to both engage in consultation (eliciting further information, ordering funding to support participation, ordering appropriate accommodation) and to assess whether the consultation and accommodation process was adequate to satisfy the Crown’s duty to consult. The NEB must not approve a project where the Crown has not fulfilled its duty to consult and accommodate.

Final Arguments of Łíídlįį Kųę́ ́ First Nation to the NEB - Hearing MH-001-2017 Page 5

Clyde River at paras. 30-42 ; Chippewas of the Thames First Nation v. Enbridge Pipelines Inc., 2017 SCC 41 (“Chippewas of Thames”)

16. The duty to consult and accommodate is to be analyzed on a spectrum, based on the prima facie strength of the claim, the significance of the right and potential infringement, and the nature of the potential damage to the claimed right or title.

Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 74 at para. 43 (“Haida Nation”)

17. At one end of the spectrum lie cases where the prima facie claim is weak, the Aboriginal right is limited, or the potential for infringement is minor. Claims on the weaker end of the spectrum may only require the Crown “to give notice, disclose information, and discuss any issues raised in response to the notice.” Deep consultation, on the other hand, is required

Haida Nation at para. 43

18. 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” including where the Indigenous group has “established treaty rights to hunt and harvest” and these harvesting rights “are extremely important … for their economic, cultural, and spiritual well-being.” In this circumstance, consultation and accommodation at the “deep” end of the spectrum is required. “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” including where the Indigenous group has “established treaty rights to hunt and harvest” and these harvesting rights “are extremely important … for their economic, cultural, and spiritual well-being.”

Clyde River at para. 20 and 43.

Haida Nation at para. 44.

19. In the recent Clyde River v. National Energy Board decision, the Supreme Court of Canada laid down a series of principles applicable in situations where the consultation and accommodation required is at the “deep” end of the spectrum. Those principles include:

 Confirmation that the NEB has both procedural powers to engage in Aboriginal consultation and remedial powers to accommodate where there is an impact on Aboriginal rights;

Final Arguments of Łíídlįį Kųę́ ́ First Nation to the NEB - Hearing MH-001-2017 Page 6

 The caution that mere ‘dialogue’ with affected Indigenous communities is insufficient if concerns have not been addressed;  The caution that a project authorization that breaches the constitutionally protected rights of Indigenous people cannot serve the public interest;  The direction that the proper inquiry by the NEB is not properly into environmental effects per se but into the impact of the project on the Indigenous rights;  The prescription against accepting insignificant concessions in light of the potential impairment of Indigenous and treaty rights; and,  The caution against accommodation which is “an afterthought to the assessment of environmental concerns” and which does not specifically address impacts on Indigenous rights.

Clyde River at para. 34, 39; 40, 45, and 51.

20. In Clyde River, the Supreme Court also confirmed that deep consultation requires the proponent or Crown to provide sufficient and accessible information about the nature of the project including technical information. It also requires the provision of sufficient resources to enable Indigenous communities to submit their own scientific evidence and test the evidence of the proponents. The Court confirmed this is necessary to enable the affected Indigenous community and proponent to properly assess the scope of impacts on Indigenous rights and understand how those impacts can or cannot be addressed.

Clyde River at para. 52, and throughout

21. In Clyde River, the Supreme Court also addressed the question of the appropriate remedy where the NEB finds that the duty to consult and accommodate remains unfulfilled. In this circumstance, the NEB must withhold project approval:

Where the Crown’s duty to consult an affected Indigenous group with respect to a project under COGOA remains unfulfilled, the NEB must withhold project approval. And, where the NEB fails to do so, its approval decision should (as we have already said) be quashed on judicial review, since the duty to consult must be fulfilled prior to the action that could adversely affect the right in question

Clyde River at para 39.

22. LFKN submits that there is strong evidence before the NEB (discussed in more detail below) that demonstrates it holds Aboriginal and Treaty harvesting and hunting rights in the area affected by the Project, rights which are of central importance to LKFN and its members. The evidence also demonstrates that the Project will have a significant impact on those rights. As such, LFKN submits that this Project requires “deep consultation”

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IV. Łíídlįį Kų́ę́ Dene’s Rights and Way of Life

A. Dene Land Rights

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

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

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

Re Paulette et al. and Registrar of Titles (No. 2), 42 DLR (3d) 8 (“Re Paulette”) at page 28.

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

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

Re Paulette at pg. 40.

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

Final Arguments of Łíídlįį Kųę́ ́ First Nation to the NEB - Hearing MH-001-2017 Page 8

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

[W]hile his people had no written history, as far back as their memories down through each generation could go, his people had made their homes in the general area of Fort Simpson and that such lands had always been considered to be theirs. According to him, for thousands of years, his people had used the land for hunting and fishing, to obtain food and clothing. They roamed all over the country in pursuit of game.1

Re Paulette at pg. 14

26. LKFN has not settled any land claims for their territory, and is a party to the ongoing Dehcho First Nations negotiations process. Decisions affecting lands under claim in this process – including the Project area – trigger Dene consultation and accommodation requirements at the high or “deep” end of the spectrum.

B. Dene Harvesting Rights

27. The evidence in the hearing established extensive and ongoing Dene hunting, harvesting (including commercial trapping), fishing and land-based cultural practices in the Project Area. The impact on these rights – including protected Treaty harvesting rights – are other triggers for deep consultation.

28. Oral evidence and written evidence from LKFN clearly delineated ongoing and significant dependence on wildlife and vegetation in the Regional Study Area and Local Study Area of the project. A few example of this evidence includes:

 The Indigenous Knowledge and Land Use Study which mapped 1,287 traditional knowledge, land use and resource sites in the limited study of the Regional Study Area, with 626 of those sites occurring within the Local Study Area.

A87101 LKFN Indigenous Knowledge and Land Use Study at p. 68.

 More specifically, the Indigenous Knowledge and Land Use Study documented 86 mammal and small game harvesting sites, 33 personal trapping sites, 51 bird hunting sites, 95 commercial trapping locations, and 92 plant and natural material harvesting sites in the RSA.

A87101 LKFN Indigenous Knowledge and Land Use Study, including Discussion and Conclusion at page at pages 33, 38, 41, 46, 53

1 Re Paulette et al. and Registrar of Titles (No. 2), 42 DLR (3d) at page 14.

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 Jane Tonka provided evidence of her family’s use of the Six Mile House area, which is the area where the North Work Site is located:

And our great grandfather said do not let go of the land and to continue keeping it there for the usage of our youth. And so I'm still continuing using it, I'm still hanging on to it so we can use the land in the future.

And right from there, there is a lot of traditional trails that extend all over the areas where they went hunting. And they didn't even tell us that's where they're going to put the pipeline, right above our cabin. And often, I wonder why they never consulted us.

Right from Six Mile House, I used to go all on the traditional trails and we went all over the land and right up to the mountain area, up to the Fish Lake areas. So they have extended trails all over, and they also had an area where they went trapping too in that area. There is a lot of traditional trail that I have walked on, right to the point we had a trail for snares. That was where we all set rabbit snares. And those were all the areas that we occupied right from the Six Mile house, the whole land area.

A87138 NEB Hearing Transcript Vol.1 para. 308, 309, 315

 Gilbert Cazon provided evidence of the extensive harvesting in the Project area during his description of the areas being shown by the video he shared of the Project locations:

There's a lot of medicine in these areas. Lots of -- lots of berries. There's lots of animals. Prior to Enbridge coming in, there was lots of caribous or lots of moose being killed right around Six Mile Island. And that was in the early seventies.

“Moose, caribou, lynx, fox, marten, mink, mallards, and ducks and chickens, grouse, fish. And that's just the animals

You're looking at blueberries, cranberries, bayberries, crow berries, high bush cranberries. You're looking at chaga, the medicines. You're looking at chaga. You're also looking at the medicine from the birch tree. Chaga, you're looking at the -- you're looking at the mushrooms from the birch tree. The mushrooms are also the birch buds. That's all medicine.

A87138-1, NEB Hearing Transcript Vol. 1 para. 161 – 662; 173 -174.

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 Elizabeth Mouse provided evidence of the small game harvesting as well as the trapping done by the Mouse family in the immediate of the South Work Site.

A87138-1, NEB Hearing Transcript Vol. 1 para. 161 – 662; 173 -174.291 - 301

C. Dene Fish Harvesting Rights

29. Dene have always relied on, and continue to rely on, fish harvested from the Mackenzie River, including the project area. The evidence in the hearing established extensive and ongoing Dene fish harvesting in the project area. The impact on these right – including protected Treaty harvesting rights – are triggers for deep consultation.

30. Oral evidence and written evidence from LKFN and other Dene clearly delineated ongoing and significant dependence on fish harvesting in the Regional Study Area and Local Study Area of the project. This evidence includes:

a. The Indigenous Knowledge and Land Use Study which mapped 4 sites of fish habitat, migration routes and spawning areas in the Local Study Area. This includes Arctic Grayling spawning habitat in the Mackenzie River 800m downstream from the proposed path for the Horizontal Directional Drilling.

A87101-1, LKFN Indigenous Knowledge and Land Use Study at page 11.

b. The Indigenous Knowledge and Land Use Study which mapped 78 fishing locations within the Local Study Area. Multiple fish harvesting methods are used to harvest at least 7 fish species in spring, summer, and fall.

A87101-1, LKFN Indigenous Knowledge and Land Use Study at page 42

c. Gilbert Cazon’s evidence on fishing on the Mackenzie River near the project area:

“We had people fishing on the shorelines. We used to leave from church on Sunday and we had to leave church early so we could find the best spot on the river 'cause all the families were on the river fishing at that time. And sometimes if you left late, you ended up going fishing just outside of the community 'cause the whole community was out there. And that’s what it was like before Enbridge came.”

A87138 NEB Hearing Transcript Vol.1 para. 163.

d. Stanley Sanguez’s evidence on the importance of the Mackenzie River:

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“But the Mackenzie River is our lifeline, Mr. Chairman, because the Mackenzie River is our transportation, our medicine, our fish, our animals, everything in that.”

A87138 NEB Hearing Transcript Vol.1 para. 517.

e. Grand Chief Herb Norwegian’s evidence on the importance of the Mackenzie River:

“I mean, our Elders, when we travelled on the river or back in our days when the bluefish run were just great, we used to go on the rivers, and you know, we caught bluefish sitting in the sunlight, and all-night fishing for bluefish and sitting on those little rock shores roasting bluefish by the water. You know, those days are -- have long gone, but we're still here, and the river still continues to flow even though we, ourselves, have damaged the river. The river is sacred.”

A87138 NEB Hearing Transcript Vol.1 para. 598.

31. These are only some of the examples in the evidence provided by LKFN and other Dene that detail their heavy reliance on their Dene fishing rights, which are protected by Treaty 11. Decisions affecting these fishing rights trigger Dene consultation and accommodation requirements at the high or “deep” end of the spectrum.

V. Project Impacts on Dene Rights and Way of Life

A. Impacts of Drilling Process and Work Camps

1. Impacts on Dene Land Rights

32. The proposed project, including the drilling, would occur on unceded LKFN land, which is not subject to any settled land claim. LKFN must be consulted on the Dene land title impact of any permanent easement amendment.

33. Enbridge has proposed a drill path under the Mackenzie River that deviates from the existing permanent easement. Furthermore, the final drill path will depend on conditions encountered during drilling, and will not be known until drilling is complete. Enbridge is also proposing a permanent easement amendment on the south side of the Mackenzie River to clear a fire break for a relocated valve site.

A87044-2, Enbridge Response to NEB IR No. 4, at pdf pages 14 and 15.

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34. Enbridge has been in discussions with the Government of the Northwest Territories (“GNWT”) about a permanent easement amendment for these drilling locations. However, neither Enbridge nor the GNWT has consulted LKFN about a permanent easement amendment. Enbridge has presented no evidence that its proposed permanent easement amendment is in conformity with the Dehcho Land Use Plan.

A87044-2, Enbridge Response to NEB IR No. 4, at pdf page 15.

35. Enbridge also proposes to use two work camps, accommodating 120 people. The physical footprint of these camps will exacerbate and accelerate permafrost thaw in the project area. Sixteen acres of vegetation will be cleared for project activities, including the work camps. Vegetation clearing is a trigger for accelerated permafrost thaw and degradation, which can alter the landscape and impact future land use by LKFN members. Enbridge does not plan to check for the presence of permafrost, or to assess permafrost conditions, on previously undisturbed land before clearing vegetation.

A87138 NEB Hearing Transcript Vol.1 paras 1706 and 1709.

A87138 NEB Hearing Transcript Vol. 1 paras. 1710 through 1713.

36. The permanent landscape alteration posed by work camps, vegetation clearing, and associated activities could prejudice LKFN’s land-claim negotiations or negatively impact land they may have title to in the future. Furthermore, Enbridge has also not yet demonstrated that its proposed land use for work camps and other project activities are in conformity with the Dehcho Land Use Plan.

2. Impacts on Wildlife and Other Harvesting

37. The NEB has before it significant oral and written evidence of the impacts on wildlife of the activities construction, drilling, and camp associated with the Project.

38. The Project Local Study Area and Regional Study Area includes significant mammal, bird and plant habitat that continues to be heavily relied upon by the Dene for food, income, medicine, cultural practices and Dene way of life. This is demonstrated by the LKFN Indigenous Knowledge and Land Use Study which documented 1287 traditional ecological knowledge, land and resource use sties across the RSA and 626 sites within the LSA, including numbers personal harvesting sites as well as a number of commercial traplines some of which run right across the footprint of the proposed sites for the work camps and drilling sites. The Study concluded that:

[R]esults affirm the fact that LKFN community members have used, currently use and will continue to use the lands and waters surrounding the Project area and that the Dene and specifically Łí́í́dlįį Kų́ę́ First Nation cultural identity and wellbeing is inherently connected to this area.

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A87101 LKFN Indigenous Knowledge and Land Use Study, including Discussion and Conclusion at page 68.

39. More specifically, the Indigenous Knowledge and Land Use Study documented 86 mammal and small game harvesting sites, 33 personal trapping sites, 51 bird hunting sites, 95 commercial trapping locations, and 92 plant and natural material harvesting sites in the RSA.

A87101 LKFN Indigenous Knowledge and Land Use Study, including Discussion and Conclusion at page at pages 33, 38, 41, 46, 53

40. Oral Dene evidence during the hearing affirmed the abundance of wildlife, plants and medicines relied upon by the Dene in the Project area. When Gilbert Cazon was showing a video of the Project area and asked to stop to identify what was in the location of the North work site, he responded:

Moose, caribou, lynx, fox, marten, mink, mallards, and ducks and chickens, grouse, fish. And that's just the animals.

You're looking at blueberries, cranberries, bayberries, crow berries, high bush cranberries. You're looking at chaga, the medicines. You're looking at chaga. You're also looking at the medicine from the birch tree. Chaga, you're looking at the -- you're looking at the mushrooms from the birch tree. The mushrooms are also the birch buds. That's all medicine.

You're looking at tamarack. Tamarack is a very powerful medicine. It's born from water. It's given to us by water. That's how we're connected to water.

Water gives us the medicine that we need, and tamarack is that medicine. That's just strictly for water.

A87138 Hearing Transcript Vol. 1 at para. 173 - 176

41. In oral Dene evidence, Dene also raised concerns about the longevity of impacts of the project on wildlife in the area, based on Dene knowledge of the impact of previous projects. For instance, Gilbert Cazon testified that:

When you look at our land and you see a lot of the area that I'd used, it's like a trapper. When he goes out there, he traps. He harvests in one area. And then when he's done with that area, he moves his line to another area, never going back to the other area for 30, 40 years, sometimes a whole century. And then his family or his young one returns to that area to harvest. That's how long the land needs to heal itself and that's how long it's left unattended.

A87138 Hearing Transcript Vol. 1 at para. 158 – 159.

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42. Similarly, Jonas Antoine testified that:

One may argue that oh, we'll let it go back and it's going to go back to it being a wilderness again. But the scar is there. It will never happen to be -- to go back to being a wilderness again because way to the right of this picture, way back about 40 kilometres away, there's an old winter road that was put in there back in the 19 -- around 1950. And that long ago is long ago. And to this day you can still see that old winter road. It was a winter road and you can still see it. And it's a permanent mark on the surface of the earth. So something like the pipeline will never, ever be -- never go back to being a complete normal wilderness again

A87138 Hearing Transcript Vol. 1 at para 267

43. The Dene described the Project and its impacts on the wildlife and land they depend on as akin to doing “heart surgery” on the heart of the Dene, and they compared the Project Area to their home:

Our home is the land. It is our kitchen, our living room, our bedroom. The land is our shopping mall, our church, our pharmacy, our recreation centre.

A87283 Hearing Transcript Vol. 4 at para. 3679 – 3680.

44. This Dene evidence stands in stark contrast with Enbridge’s conclusion that:

Given the small scope and short timing of this Project, the Project is not expected to materially interfere with the land use, wellbeing or livelihood of LKFN rights holders, although, it may temporarily affect the specific areas in which those rights can be exercised.

A87044-4 Enbridge’s Response to NEB IR #4, at page 19

45. LKFN submits that Enbridge conclusion is erroneous and dismisses the very real impacts of the Project on the wildlife and land which the Dene depend upon.

3. Impacts on Fish and Aquatic Habitat

46. LKFN has ongoing concerns about the impacts on fish and the aquatic environment of an inadvertent return of drilling fluids (also known as a “frac out”) to the Mackenzie River during the horizontal directional drilling process. This is a particular concern due to the presence of Arctic Grayling spawning habitat 800m downstream of the proposed drill path.

47. These concerns about the risks of the proposed drilling on fish and the aquatic environment were first communicated by LKFN leadership to Enbridge as early as May 24, 2017, and were further detailed in LKFN’s written evidence submission.

Final Arguments of Łíídlįį Kųę́ ́ First Nation to the NEB - Hearing MH-001-2017 Page 15

A84667-1, LKFN Written Evidence Submission at paragraphs 78 through 86.

48. LKFN acknowledges the fish and fish habitat assessment provided within the Environmental and Socio-Economic Assessment and the sediment modelling report. However, these documents provided limited and inadequate detail on impacts to fish habitat and on the connection between sediment modelling scenarios and impacts to fish habitat. LKFN requires a detailed, species-specific and site-specific impact assessment that uses the information provided in the sediment modelling report to assess the potential impacts on fish that use the immediate area at various times of the year for various life cycle functions.

49. LKFN maintains that not all risks posed by an inadvertent return to fish and the aquatic environment are chronic; an inadvertent return can result in short-term impacts. Short-term impacts may include the destruction of suitable spawning habitat or avoidance of suitable spawning habitat by adults during spawning periods. Sediment that settles or covers rearing habitat may also reduce prey availability, increasing substrate embeddedness and burying invertebrate communities, thus inhibiting the growth of potential juvenile fish.

5. Impacts on Community Safety

50. LKFN has ongoing concerns about the safety of community members, particularly Indigenous women and girls, in the context of an influx of outside workers who will reside in the project area and have access to the community. Transient worker camps have been shown to lead to increased violence against Indigenous women and girls in the host communities These concerns are exacerbated by risks of outside workers bringing in and/or using drugs and alcohol while in and near the community.

A84667-1, LKFN Written Evidence Submission at para. 98.

51. A family home, owned and used by LKFN members, is located just off the Right of Way on the South side of the Mackenzie River. The family is concerned that project work will bring an influx of people on their land, close to their home. LKFN has concerns for the safety of the family and their property, and also about the impacts to them, and particularly to their young children, of increased traffic and heavy equipment on the ROW and in the project area. According to Elizabeth Mouse, a member of the family:

When I come I bring my kids, and I feel safe them just to be outside and running around. But since we came last winter, we were there -- we were here for the winter for, I think, a couple of weeks because there was so much traffic coming in and out on that road, I didn't feel safe for my kids to be outside and playing. So we didn't stay that long and so we left….

When I'm done school, I wanted to come home, but if I'm not going to have a home to come to then where am I supposed to go and where am I supposed to raise my kids and teach them the way I lived when there's going to be like all these people on our land? …

Final Arguments of Łíídlįį Kųę́ ́ First Nation to the NEB - Hearing MH-001-2017 Page 16

And that gate is always left open, so now we have random people coming in and out of our camp and things are going missing. And we used to be able to leave things there, and now it's like we feel unsafe leaving anything there unsupervised. It's like someone always has to be at camp so that nothing goes missing.

And if there's going to be all these people at this camp that's going to be staying at the end and on the other end, I don't even know if I feel safe to even have my kids around because I don't even know who these people are going to be that are on the land.

A87138 NEB Hearing Transcript Vol.1 para. 291, 292, 295 and 296.

52. Project activities will make hunting and harvesting more difficult and dangerous for LKFN members and others. The project area, and surrounding areas, are widely used by LKFN members for harvesting and hunting. With work camps on both sides of the Mackenzie River, and no restrictions on access to land for the 120 workers who will be housed in these camps, there will be an increased risk of accidents while LKFN members are hunting and harvesting. LKFN members have accumulated knowledge and protocols that allows them to know who is out hunting or harvesting in a given area and how multiple persons can safely hunt and harvest in the same area. Outside workers introduce an unknown and potentially hazardous factor into this established system.

53. Barge and water taxi traffic poses a risk to LKFN members who use the Mackenzie River for harvesting, cultural practices, and as a transportation corridor. LKFN members harvest fish on the Mackenzie River near the proposed water taxi route and barge landing site. A nearby youth camp on north side of the Mackenzie River presents additional risks as children and youth may play on the shore, swim in the River, or be travelling or harvesting in boats. Gilbert Cazon testified:

Right here is where the kids' camp is and the project is just right over here. You were probably looking at about -- yeah, about a kilometre as the eagle flies.

A87138 NEB Hearing Transcript Vol.1 para. 208.

6. Permafrost Impacts

54. Permafrost in the Dehcho region, including the project area, is highly susceptible to thaw. Small changes to the landscape such as vegetation removal, soil compaction, or hydrological changes can trigger the degradation, thaw, and eventual disappearance of permafrost.

A86622-2, LKFN Supplemental Evidence on Permafrost, at para. 2)

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55. Permafrost thaw can change the landscape in significant ways. These impacts can impede traditional land use in an area, hindering the exercise of Dene rights.

A86622-2, LKFN Supplemental Evidence on Permafrost, at para. 2.

56. Indigenous knowledge evidence presented on permafrost-related impacts to the landscape included:

a. Evidence from Gilbert Cazon, who testified:

We have problems with permafrost and permafrost is melting at an extreme rate.”

A lot of the trees are staggering and a lot of that”

So that's the process. One area goes down and it's probably about five years, and it makes a bigger area. That area goes down, creates a bigger area. So all these sinkholes are starting to happen on our land. And that's one of the things that we were concerned about is the sinkholes that are going to be created once the permafrost starts melting.

A87138 NEB Hearing Transcript Vol.1 para. 190. 246 and 247.

b. Evidence from Edward Cholo, who testified:

And I'm also a river monitor from Fort Simpson up to Rabbitskin and from Simpson down to Camp Sambaa, and up the Liard River. And I've seen a lot of the changes like permafrost, a landslide that's seeping, steady, every day, every summer. I think I was doing this for the past seven years, and there's some places just above the pipeline where there's a seepage, or landslide.

A87138 NEB Hearing Transcript Vol.1 para. 252.

c. Evidence from Chief Gerald Antoine, who testified:

One of the things that you saw on the slide is that it really -- it shows that the banking on the rivers are also being impact[ed], especially where the sun really shines on it. And on this case here, it's the south side of the river. And you'll notice that the permafrost is also really being affected. And with the slide there, you'll see that it really had impacted so bad that the

Final Arguments of Łíídlįį Kųę́ ́ First Nation to the NEB - Hearing MH-001-2017 Page 18

whole side of the hill has begun to slide. And so you know, we also concerned about the impact of permafrost changes.

A87138 NEB Hearing Transcript Vol.1 para. 373.

d. Evidence from Stanley Sanguez, who testified:

The reason being is that we're really concerned about the permafrost and how it's thawing and it's changing. And we raised it a number of times in our communities is how do you get Enbridge to help us understand if there is the permafrost and the -- there is big craters that have been created in -- on the permafrost. We were concerned about, okay, the pipeline goes through a lot of the muskeg area in our traditional area back, and we were concerned about how is that going to impact.

A87138 NEB Hearing Transcript Vol.1 para. 515.

This is why we were so concerned about the climate change, the permafrost thawing, and we're finding it. I mean, holy smokes, you could see like -- you could see a permafrost freeze about 6 feet high. Mr. Chairman, that thing is probably about 12 feet high -- 12 feet deep. It's like a big crater. And we thought that the water was going to sit in there but the water's no longer sitting there. There's no more permafrost to capture the water so everything just seeps into the ground, and at the same time too, we're saying, well if the water doesn't sit there then, oh my gosh, the next thing is a fire, forest fire.

A87138 NEB Hearing Transcript Vol.1 para. 587.

e. Evidence from Gabe Hardisty, who testified:

Now where all the ice is forming under the ground, they said it’s starting to thaw out. They say when you go on the highway from here all the way to Wrigley you could see all that side of the road where the permafrost is coming into play because you can see all the trees are all lopsided on the side of the road.

A87138 NEB Hearing Transcript Vol.1 para. 771.

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f. Evidence of Chief Dolphus Jumbo:

And right now we're having problem with permafrost thawing, and it does not help at all with the pipe…

So for me, to look at it is that out in the bush hunting and to see all these, not on the right-of-way of the pipeline, but just by the nature out in the open in muskeg at areas that the trees are falling over and they're -- it's sort of like sinkholes that -- and it tells me that permafrost is thawing out. Many, many areas that I go on, I suspect that, so that's why I'm saying that, you know. It doesn't help at all to have that pipe right in the permafrost because it's helping it speed up the thawing. That's what the Elders were saying.

So we're not only very concerned about the global warming and that; we need to really think about how can we slow down the thawing of permafrost and that because a lot of places in Trout Lake -- for instance, in Trout Lake winter road, it's all on open country. And in 10, 15 years you could see all the changing of landscape and that. That tells me that the permafrost is thawing faster than I thought it would be.”

A87138 NEB Hearing Transcript Vol.1 para. 825, 838 and 839

g. Evidence of Ruby Jumbo:

This -- the Chief spoke earlier about the permafrost melting and stuff, so one of the things the community really would like to see is improvement in a monitoring program on a regular base in all seasons, whether it be summer, winter and fall.

A87138 NEB Hearing Transcript Vol.1 para. 909.

57. LKFN is concerned that Line21 has contributed to permafrost thaw and degradation on and around the pipeline right of way. Permafrost monitoring has shown that permafrost on the right of way has thawed and, in some cases, disappeared in recent years. Research in the Dehcho Region has shown that linear disturbances on the land contribute to permafrost thaw and disappearance, and alter the flow of groundwater through talik formations (perennially unfrozen ground beneath the active layer). Modelling work suggests that permafrost thaw on the Line 21 ROW will extend, via the talik, for several metres off the ROW.

Final Arguments of Łíídlįį Kųę́ ́ First Nation to the NEB - Hearing MH-001-2017 Page 20

A82415-2, HDD Geotechnical Feasibility Report at page 20; and A86622-2, LKFN Supplemental Evidence on Permafrost, at para. 3.

A86622-2, LKFN Supplemental Evidence on Permafrost, at para. 4

A86622-2, LKFN Supplemental Evidence on Permafrost, at para. 3

58. Surface disturbance due to the digging of pits for the horizontal directional drill and pipe pullback and for sumps to store drilling waste has the potential to trigger a positive feedback of permafrost thaw. This remains a concern regardless of whether or not the sumps are located on or off the right of way. The evidence suggests permafrost thaw on the right of way can lead to thaw off the right of way.

A83286-2, HDD Feasibility Report at pages 8 and 9

A82026-4, Environmental and Socio-Economic Assessment at page 31

A87138 NEB Hearing Transcript Vol.1 para 190

59. LKFN and other Dene have noticed significant changes to the landscape and to permafrost conditions in recent years, and attribute these changes to global warming and climate change, as well as to the existing segments of Line 21 and other disturbances on the land. This is a case of cumulative impacts; a warming climate combined with disturbances from Line 21 and other activity are responsible for the observed permafrost thaw and disappearance. Permafrost in the Dehcho region and the project area is at risk of thaw and disappearance, and LKFN maintains that great care must be taken to ensure the proposed project work and activities do not exacerbate or accelerate permafrost thaw and disappearance, and that permafrost conditions are assessed and monitored before, during, and after construction.

60. Gilbert Cazon’s oral evidence provided a Dene knowledge perspective on the cascading impacts of permafrost degradation:

And that’s what the Dene understand, is that the natural occurrences happen, but a tree, when it’s out there, doesn’t die naturally. Another tree hits that tree and then that tree gets jarred and then it open up a little bit, disease comes in, kills that tree, kills the next tree, kills the land. And that was our concern, is the corridor that’s left open behind this little project here that we’re looking at is all open. And that’s a big wound that our land is starting to get sick from. And it’s starting to get unhealthy. And it creates a corridor. So there’s things that do not belong on our land to come in.

A87138 NEB Hearing Transcript Vol.1 para. 152

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61. Testifying about the video evidence shown at the hearing about the currently uncovered and exposed sections of the north and south ends of the exposed pipeline, Gilbert Cazon testified:

Like, they have this environmental team that works for Enbridge and they wanted to know why it was left like this because we have problems with permafrost and permafrost is melting at an extreme rate. And then we wondered why it was just left open because it has potential to -- it actually, it's starting to probably melt around there. And that's what's probably going to start the melting process quicker in that area, just leaving it open like that and not bothering to close it off or anything….

And that is above the pipeline and that, if it comes down, has potential to go and touch the pipeline. That whole hill that’s just above the pipeline is eroding quite a bit, at a great pace. One of the presenters here, Edward, is a Liidlii monitor and he had the visual experience of what’s happening on that as he’s been monitoring the river all summer. And this is on the other side of the Mackenzie where the pipe was left the same way, open and capped, and just left open. So the potential for that whole hill to eventually get through and cause damages is there now because they’ve penetrated and they’ve opened it. Now the heat can penetrate. So that was our concern on that side.

A87138 NEB Hearing Transcript Vol.1 para. 190 and 222.

62. The lack of substantive detail or technical analysis from Enbridge regarding permafrost baseline conditions and anticipated impacts on LKFN’s Dene and Treaty rights from permafrost changes remains one of LKFN’s most serious concerns about gaps in information, mitigation and accommodation regarding this Project.

B. Impacts of Barging

63. Barge traffic and docking on the south side of the Mackenzie River poses a risk to the safety of LKFN members who use the River for fishing, harvesting, transportation, and cultural practices by increasing the risk of boating accidents. This is a particular concern with respect to the LKFN youth camp on the south side of the Mackenzie River near the project area and barge docking site.

64. Increased barge traffic could disturb fish in the Mackenzie River and impact the ability of LKFN members to harvest fish in the project area. There are 78 LKFN fishing locations within the Local Study Area, including several on the Mackenzie River downstream from the proposed barge docking site

A87101-1, LKFN Indigenous Knowledge and Land Use Study at page 31.

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65. Barge traffic and docking comes with a risk of scour or other disruption of the River bed and bank. This could lead to increased sedimentation which could disrupt fish habitat. This is a particular concern for the Arctic Grayling spawning site 800m downstream from the proposed drill path. Enbridge has not assessed the potential impacts of barging on fish and fish habitat. These concerns were raised by Stanley Sanguez at the oral portion of the Hearing:

And when we talked about the impact of the barges that are coming and kicking up the turbidity and choking the fish, how do you be careful how you use these barges, because we -- that's -- kick out anything and choke the fish.

A87138 NEB Hearing Transcript Vol. 1 para. 530.

66. Dene have observed low water levels on the Mackenzie River in recent years, and note that this has impeded the ability of barges to travel on the River. Barge delays or cancellations could alter the season in which impacts from barging are occurring, and could alter or delay the construction schedule. An altered or delayed construction schedule could create spin-off impacts to wildlife, vegetation, and LKFN members. Stanley Sanguez raised the issue of low water levels in the oral portion of the Hearing:

And it doesn’t really help that the Mackenzie River is really going down. It had gone down at least maybe about three, four feet within the last 10 years.

A87138 NEB Hearing Transcript Vol. 1 para. 533.

67. Edward Cholo linked the low water levels to reduced barge services on the Mackenzie River:

So -- yeah. That's about it. I guess I see a lot of changes happening up on the river. There used to be a lot of water and now you see NTCLs that barge -- transportation barges go down it two or three times a summer. Before they used to go down all the time, and due to no water, you don't see very much barge, maybe one, two or three trips.”

A87138 NEB Hearing Transcript Vol. 1 para. 258.

68. Despite potential impacts of barging on the fish and fish habitat on which Dene in the region rely, and on river access relied on by Dene for travel for hunting, fishing and other cultural practices, little substantive information was provided regarding detailed risk assessment or plans for mitigation. Critically, Enbridge has not assessed risks of turbidity to fish and aquatic life, and will not develop related mitigation measures until a barge contractor is selected

A87138 NEB Hearing Transcript Vol. 2 paras. 1473 and 1476.

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VI. Enbridge’s Failure to Address Dene Concerns

A. Requirement to Mitigate or Accommodate Impacts on Dene Rights

69. Enbridge first brought this proposal to LKFN’s attention in January 2017. As evidenced by Enbridge’s submissions on this matter, they have characterized their proposal as having minimal – even negligible – impacts on LKFN rights and interests: Given the small scope and short timing of this Project, the Project is not expected to materially interfere with the land use, wellbeing or livelihood of LKFN rights holders, although, it may temporarily affect the specific areas in which those rights can be exercised.

A87044-4 Enbridge’s Response to NEB IR #4, at page 19

70. When pressed in cross examination, and after hearing the oral Dene knowledge evidence and reviewing the Indigenous Knowledge and Land Use Study, Enbridge still maintained that the impact on Dene rights was “immaterial” and indicated that Enbridge was still “in no position to speculate how significant or insignificant the impact could be.”

A87180 Hearing Transcript Vol. 2 at para. 2097 - 2145

71. The very purpose of the hearing was to ensure that Enbridge, the NEB and the Dene parties could determine how significant or insignificant the impacts of the Project are, as this is key for understanding what is required for mitigation or accommodation. As Chief Gerald Antoine stated in the hearing:

Our concerns are concrete. The impacts are real. And that this is not a temporary project. It will hurt our land, our culture, the animals we rely on, the water we need for survival.

We needed commitments about the concerns we raised on issues like the impact on land and water, animals, fish we depend on for food, and culture, and our life; the monitors who must be involved to be on the land collecting data and watching to protect the land and water; the spill risk that could affect our health, and the fish, and our homes; the work camps that will be on our land, on our home; the compensation for all these things that Enbridge cannot address fully or prevent; the need for full participation as equal partners in developing the final environmental protective plan and an emergency response plan.

A87283 Hearing Transcript Vol 4 at para 3691 – 3692

72. The Aboriginal consultation and accommodation process is not “simply one of giving the [Aboriginal group] an opportunity to blow off steam before the Minister proceeds to do what she intended to do all along.” An NEB decision will not comply with section 35 of the Constitution Act, 1982 if it merely ensure that proponents engage in “dialogue”

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with the affected Indigenous group – the NEB may only proceed with approval of a project if the consultation is adequate. When Indigenous groups have raised concerns about a Project’s impacts on Indigenous rights, those concerns must be addressed, and insignificant concessions in light of potentially serious impairment of treaty rights is not sufficient to discharge the duty to consult and accommodate.

Mikisew Cree First Nation v. Canada, 2005 SCC 69 at para 54.

Clyde River at para. 39, 41 and 51. 73. Prior to obtaining approval for the Project, Enbridge must be able to demonstrate that this hearing was more than an exercise in allowing the Dene to “blow off steam,” and that specific and tangible commitments are in place for mitigation or, where mitigation does not sufficiently address impacts on Dene rights, accommodation including compensation.

B. Enbridge’s Failure to Mitigate, or Accommodate Unmitigated, Impacts

1. The Generally Vague and Non-Specific Responses From Enbridge

74. On multiple occasions, when pressed for details on whether Enbridge was willing to agree to specific accommodation measures, Enbridge provided vague and non-specific responses. For instance, just a few of Enbridge’s responses to requests from the Dene communities for specific accommodations were:

“You are correct; there is no agreement in place to address those specific impacts. However, you know, we have committed to continue to work with LKFN, and the other communities, for ongoing engagement.” (para 1136)

“Enbridge is committed to continue to engage with the communities as this project moves forward, and we will continue to do that, and this is an issue that we’ll continue to have discussions outside of this forum on.” (para 1141)

“We're going to continue to engage with LKFN and work with them and their members to better understand the impacts. And we will hope to hear from them as we -- as the project progresses and it goes into operation. And we can deal with impacts that they bring forward at those times.” (para 1352)

“We’d be open for discussion, it just has not happened yet.” (para 1471)

“Enbridge will continue to work with LKFN and address their concerns as they’re raised on that matter.” (para 1478)

“Enbridge is -- you know, through discussions with the communities, we have heard the request for support with Dehcho K'ehondi

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program. This is something we will continue to speak to them about beyond the hearing.” (para 2005)

“You know, through our discussions and through the engagement process, we are aware of the community's desire for an ongoing monitoring program, and they've often referenced the Dehcho K'ehondi program. That is something that we've heard, and we'll continue to speak to them outside of this hearing process about that.” (para 2175 - 2176).

All from A87180 Hearing Transcript Vol 2

75. Table 1: Table of Enbridge Commitments and Non-Commitments, attached to these Final Arguments, provides a detailed list of Enbridge’s refusal to agree to specific accommodations requested by the Dene communities, to address the Project’s impacts on specific Dene rights and interests.

Table 1: Table of Enbridge Commitments and Non- Commitments

76. Enbridge repeatedly responded to LKFN and Dene concerns by indicating that it would address those concerns “outside this process” and in the future. The time for ensuring that impacts were fully scoped and understood, and addressed, is precisely in this hearing and not outside the process or in the future. As Chief Antoine responded,

These commitments need to be made now, this week, in this process, not outside the process, which Enbridge kept saying this week, that dismisses our participation and prevents our ability to really address our concerns.

A87283, Hearing Transcript Vol 4 at para 3693.

77. These vague and non-specific commitments do not meet the legal requirements for Dene consultation and accommodation. The Aboriginal consultation and accommodation process is not “simply one of giving the [Aboriginal group] an opportunity to blow off steam before the Minister proceeds to do what she intended to do all along.” An NEB decision will not comply with section 35 of the Constitution Act, 1982 if it accepts that proponents must only engage in “dialogue” with the affected Indigenous group. The Supreme Court of Canada has been clear the NEB may only proceed with approval of a project if the consultation is adequate. When Indigenous groups have raised concerns about a Project’s impacts on Indigenous rights, those concerns must be addressed, and insignificant concessions in light of potentially serious impairment of treaty rights is not sufficient to discharge the duty to consult and accommodate.

Mikisew Cree First Nation v. Canada, 2005 SCC 69 at para 54.

Clyde River at para. 39, 41 and 51.

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2. Failure to Provide Sufficient and Timely Information

78. LKFN raised concerns with the NEB in this hearing about the inability of LKFN and the other intervenors to access clear Project information from Enbridge, including the technical drilling and construction details required for analysis and response regarding impacts on Dene rights. The lack of sufficient information regarding technical aspects of the Project was an ongoing issue that has constricted the ability of the impacted Dene communities to meaningfully participate in the current NEB process, understand what is being specifically proposed, or respond regarding appropriate mitigation and accommodation.

A87283 Hearing Transcript Vol. 4, para 4077 – 4094 and 4116 – 4129 provides examples cited during LKFN’s oral final arguments regarding lack of technical information on water monitoring plans, no drill zones, and decommissioning plans.

79. As one key example, Enbridge provided limited technical information regarding its decommissioning application. The technical information in the application was summary in form, provided no technical information or analysis backed by technical data on the option of removing the pipe. Limited information was finally delivered to LKFN one business day before the hearings began and provided Enbridge’s reasons for not removing the section of pipe on the slope but no rationale or technical analysis about why Enbridge still proposes to leave the existing segment of pipeline in the riverbed of the Mackenzie River or how to mitigate impacts related to that decision. The evidence provided at the oral hearing, in Enbridge’s responses to Board questions, finally made it clearer that Enbridge has in fact clearly considered what specific work would be involved to remove the decommissioned segment of pipe including environmental risks, safety issues, and associated costs. But Enbridge has still provided no clear written evidence or technical analysis of this rationale to LKFN or any of the other affected Dene Nations and Dene communities, for review and analysis regarding impacts on Dene rights.

A87283 Hearing Transcript Vol. 4 para 4090 - 4094

80. Other examples where Enbridge failed to provide key technical information to the affected Dene communities, thus constraining a proper analysis of how to mitigate impact on Dene rights, included:

 spill risk assessments  leak detection plans  frac out risks to fish and fish habitat  off road permafrost conditions  contingency plans for spill risks (other than using an experienced drilling crew).

81. In response to an ruling from the Board, Enbridge filed a Contingency Plan for the propose horizontal directional drilling process (A83286-17). The Plan lists the primary

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contingency as “the presence of experienced crews with each drilling operation.” (A83286-17, pdf page 3). LKFN has limited information to assess the full scope of risks associated with the horizontal directional drilling process (e.g., cobbles or boulders damaging the pipe during pullback, encountering fractures in the geology that relate to the risk of an inadvertent return of drilling fluids).

A87283 Hearing Transcript Vol. 4, para 4077 – 4094 and 4109 – 4132

82. In the end, LKFN may not necessarily disagree with decisions that Enbridge has made with respect to the project, but LKFN was not been provided the information necessary in the hearing process to properly analyse impacts on Dene land, harvesting and other rights, and develop an informed opinion and discussion with Enbridge about how to best mitigate those impacts or accommodate impacts that could not be mitigated.

83. The lack of technical information related to key impacts of the project on Dene rights fails to meet the requirement that affected Indigenous communities be provided with sufficient and accessible information about the nature of the project including technical information and the provision of sufficient resources to enable Indigenous communities to submit their own scientific evidence and test the evidence of the proponents. The Supreme Court confirmed in Clyde River that such information is essential to properly assessing the scope of impacts on Indigenous rights and understanding how those impacts can or cannot be addressed.

Clyde River at paragraph 52

3. Failure to Accommodate Regarding Work Camp Impacts on Women and Girls

84. LKFN and DFN’s requested that Dene concerns about the impacts of the work camp on local women and girls be accommodated, in part, through the establishment and funding of a women’s advisory council to assist in addressing the impact of transient works on local communities.

A87180 Hearing Transcript Vol. 2, para. 1107 - 1108; 1138

A87230 Hearing Transcript Vol. 3, para. 3081

A84667-1 LKFN Evidence Submission, pg. 27

85. Enbridge provided a general commitment to dialogue after and “outside this forum” but refused to make a specific commitment to provide the requested accommodation, saying:

Enbridge is committed to continue to engage with the communities as this project moves forward, and we will continue to do that, and this is an issue that we’ll continue to have discussions outside of this forum on.

A87180 Hearing Transcript Vol. 2, para. 1141

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4. Failure to Mitigate and Accommodate Regarding Wildlife and Harvesting Impacts

86. As detailed above, the written or oral evidence showed multiple impacts of the drilling locations, drilling activities, related construction activities, and work camps on wildlife in the Project area. This is wildlife that Dene continue to rely upon for income (from commercial trapping), food, and cultural practices.

Evidence of Chief Gerald Antoine, A87138 Hearing Transcript Vol. 1, para 137

Evidence of Elder Jane Grossette Tonka, A87138 Hearing Transcript Vol. 1, para 307-315

Evidence of Elizabeth Mouse, A87138 Hearing Transcript Vol. 1, para 298 - 301

A87180 Hearing Transcript Vol 2. LKFN Cross Examination of Enbridge, para 1175 - 1210

A87101 Indigenous Knowledge and Land Use Study – Dene Traditional Ecological Knowledge Sites maps (pg. 9 and 10); Personal Harvesting and Land Use Sites maps (pg. 31 and 32); Commercial Trapping Sites maps (pg. 51 and 52), Dene Occupancy and Access Areas maps (p. 60 and 61),

87. When asked to make a specific commitment to compensate the Dene community members who have commercial traplines or personal harvesting sites in the local study area (including right across the footprint of the work camps and drilling sites), Enbridge refused to provide any commitment, saying:

Enbridge has previously committed that we will work with the communities to work with trappers, but no, we have not committed to compensation.

A87180 Hearing Transcript Vol. 2, para. 1212, 1355 – 1362, 1414 - 1422

88. LKFN raised concerns about the lack of any specific commitment or details regarding a notification protocol for local harvesters, to advise them of the inadvertent release of drilling fluids or commencement of construction, in order to minimize risks while travelling and to adjust harvesting plans. When asked to commit to a timeline to amend the Environmental Protection Plan to include notification protocols, Enbridge provided vague and general commitments to update notification information in the future, but refused to make a specific commitment to including the First Nation in developing notification protocols or to specific timelines for notification to harvesters.

A87180 Hearing Transcript Vol. 2, para 1260 – 1263

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5. Failure to Mitigate and Accommodate Regarding Fish Harvesting Impacts

89. The evidence showed that sections of the Mackenzie River and Liard River near the project area are prolific and important fishing areas. This includes oral evidence and evidence presented in LKFN’s Indigenous Knowledge and Land Use Study. The evidence also shows that the Mackenzie River near the project area is important fish habitat, including for spawning and migration.

90. LKFN has concerns about the potential impacts of an inadvertent return of drilling fluids to water, the aquatic environment, and fish and fish habitat in the Mackenzie River, and communicated this to Enbridge in a May 24th, 2017 meeting. LKFN’s concerns about the impacts of an inadvertent return on fish and fish habitat were further detailed in its June 28th, 2017 written evidence submission to the Board. In that written evidence LKFN communicated the need for a detailed aquatic assessment that would help to understand the risks of an inadvertent return on fish and fish habitat, and would also inform water quality monitoring planning and mitigation and reclamation measures.

A84667-1, LKFN Written Evidence Submission at paragraph 86.

91. Enbridge’s Aboriginal Consultation Log records the concerns raised by LKFN at the May 24th meeting as “concerns about the potential impact of a drilling release on the community’s potable water supply.”

A84022-3 Attachment 1 to IR No. 2.1(a) – Aboriginal Consultation Log at page 3.

92. Enbridge’s Summary of Aboriginal Concerns document, filed May 31st, 2017, states “[t]here are no anticipated impacts to fishing” as the response to concerns raised about impacts to fishing.

A84022-4 Attachment 1 to IR No. 21.(b) and 2.1(c) – Summary of Aboriginal Concerns at page 1.

93. On July 25th, 2017 Enbridge filed a sediment modelling report. The report’s “primary investigation” is focused on the potential impacts of an inadvertent return of drilling fluid on the Fort Simpson municipal water intake. The report acknowledges that there are concerns about the impacts of an inadvertent return on fish and fish habitat, but does not investigate or address these concerns at all.

A85119-8, Appendix 6 – Mackenzie river Sediment Modelling RPS Report, at page 3.

94. Edward Cholo’s evidence regarding the monitoring that he does for Aboriginal Aquatic Resource Management is a positive example of working together to improve things. Enbridge has refused, to date, to commit to a binding agreement which includes any similar type of aquatic monitoring program.

A87138 Hearing Transcript Vol 1 para 394 – 405

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6. Failure to Accommodate Regarding Cultural Site Impacts

95. LKFN’s Indigenous Knowledge and Land Use Study identifies 30 culturally important sites in the Local Study Area. The Study shows LKFN cultural sites are very close to, and sometimes overlap with, project work areas. LKFN’s written evidence submission, and the oral evidence from LKFN members and other Dene shows that Dene have a cultural, spiritual, and linguistic connection with the land. These cultural sites represent Dene history, language, spirituality, and are integral to the ability of Dene to pass values and teachings on to young and future generations.

Exhibit A87101-1, LKFN Indigenous Knowledge and Land Use Study at pages 20 and 21.

96. Project activities could limit access to cultural areas, or make access more dangerous or difficult. Project work could also cause lasting damage or impacts to important cultural sites and areas. It is important to note that not all important cultural sites and areas are easily identifiable someone who is not a Dene with intimate knowledge of the area. For example, a seemingly innocuous formation, like a rock, could have spiritual meaning, a specific name, and/or a story associated with it.

97. Enbridge has conducted on-site archeological work in planned work areas with representatives of LKFN and other impacted First Nations. This is a positive start, but Enbridge has not adequately considered or addressed the potential impacts to LKFN cultural sites. Enbridge states that the archeological reconnaissance survey identified no cultural sites within the project area, but that Enbridge will incorporate the results of LKFN’s Indigenous Knowledge and Land Use Study in its project planning. It is unclear how Enbridge determines what is or is not a “cultural site”.

Exhibit A87044-4, Attachment 2 to IR No 4.7 at pages 6 and 7.

98. Enbridge’s initial application assessed socio-economic impacts of the project based on “a desktop review of various records.” This assessment does not address impacts relating to cultural sites on the land, and instead focuses on the distance of the project from the Village of Fort Simpson, concluding that the project will have no, or minimal, interactions with social and cultural well-being.

Exhibit A82026-4, Line 21 Environmental and Socio- Economic Assessment Part 1 of 2 at pages 13, 24, and 30.

7. Failure to Accommodate Regarding Integration of Indigenous Knowledge

99. LKFN’s Indigenous Knowledge and Land Use study, along with the oral evidence of LKFN and other Dene, clearly shows the importance project area and surrounding areas, include the Mackenzie River and Liard River, for Dene harvesting, cultural, and spiritual practices. This evidence also demonstrates an intimate knowledge of the

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animals, plants, landscape, permafrost conditions and thaw, and overall ecosystem throughout the seasons.

100. Enbridge’s Environmental and Socio-Economic Assessment acknowledges “small-scale trapping for small mammals, and some hunting conducted within the project area”, but overall only assumes that the project area and surround areas “may support traditional land and resource uses (e.g. hunting, fishing, trapping, fruit and plant gathering, or ceremonial uses). Enbridge failed to utilize available LKFN knowledge to extent of harvesting in the area, including having a complete lack of information on fishing, plant and medicine gathering, and cultural use.

Exhibit A82026-4, Line 21 Environmental and Socio- Economic Assessment Part 1 of 2 at pages 24 and 23.

101. Not only has Enbridge failed to identify and address impacts to Dene rights, Enbridge has made no effort to utilize Dene knowledge as a foundation to project design in a way that would avoid or mitigate potential impacts. In some cases, Enbridge has been very resistant to taking this approach. For example, Enbridge has declined a collaborative approach to a fish and fish habitat assessment that utilizes Dene knowledge to address LKFN concerns about the potential impacts of an inadvertent release of drilling fluids.

Exhibit A87230-1, Hearing Transcript Vol 3 at paras. 3034 and 3036

8. Failure to Accommodate Regarding Local Employment and Contracting

102. LKFN and the other affected Dene communities repeatedly raised concerns regarding employment and contracting related to the Project. LKFN considers Dene employment and economic development commitments to be a key aspect of accommodation of the impacts of the Project on the local Dene communities.

103. In response to LKFN’s and the other Dene communities’ requests to address employment and contracting concerns, Enbridge made vague commitments to continued discussion in the future but explicitly refused to provide the following specific commitments:

 to hire a certain number of local Dene workers, including a specific number of women, for the Project

A87180 Hearing Transcript Vol 2 at para 1989 – 1992

 to provide training to assist local community members to build skills and be eligible for employment in the skilled trades required for the project

A87180 Hearing Transcript Vol 2 at para 2000 – 2003

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 to require Project contractors to enter arrangements with the pipeline craft unions to ensure preferential hiring of local Indigenous workers

A87180 Hearing Transcript Vol 2 at para 2004 – 2005

 to fund jobs through Dehcho K’ehondi in lieu of employment with the Project where the Project required skills sets not available in the community

A87180 Hearing Transcript Vol 2 at para 2011 – 2018

 to enter into an agreement with LKFN to use local contractors for services required by the project

A87180 Hearing Transcript Vol 2 at para 1984 – 1985

9. Failure to Mitigate and Accommodate Regarding Spill Risks

104. The evidence filed by Enbridge does not adequately address spill and leak detection or response with respect to the segment of pipeline that will be installed up to 140 metres under the Mackenzie River through the horizontal directional drill path.

105. There is no information or inadequate information to address the following concerns of LKFN:

a. Efficacy of leak detection methods in the newly installed segment of pipeline, especially in the case of pinhole leaks which may not be detectable with pressure monitoring, inline inspection tools or other available methods (considering that aerial monitoring, integrity digs, and visual inspections are not options for this segment of pipeline);

b. Options for spill or leak response in the newly installed pipeline, considering that it will be buried up to 140 metres beneath the Mackenzie River;

c. Impacts of spills and leaks on the surrounding environment. Enbridge has provided no information on how a spill or leak from the newly installed segment of pipeline would interact with the surrounding environment (e.g., if there is a risk a leak could migrate to the surface or to the bed of the Mackenzie River). This is further complicated by the uncertainty around fractures in the geology of the drill path, and Enbridge will not have knowledge of this until the horizontal directional drilling is actually complete; d. How leak detection and response would be complicated by ice cover on the Mackenzie River in the winter, or how leak detection and response procedures would be modified to account for winter ice conditions;

e. How the new segment of pipeline would be inspected or repaired in the event that potential damage to the pipe’s integrity is suspected after the new section of pipe is pulled through; or

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f. How the new segment of pipeline would be properly maintained or repaired as part of Enbridge’s integrity management programs.

106. Enbridge’s filed evidence has stated that the newly installed section of pipeline will be included in the existing Line 21 monitoring program for leaks and spills.

A84408-2, Enbridge Response to DFN IR No. 1 at pdf page 6

107. Enbridge’s leak detection strategy for Line 21 includes six primary methods, one of which is visual surveillance (e.g., ground or aerial patrols conducted by Enbridge or third parties).

A85000-2, Enbridge Supplemental Responses to DFN IRs at pdf page 2).

108. The inline inspections tools used by Enbridge has successfully detected leaks as small as 2 litres per minute. Enbridge has not filed information on leak detection capabilities for leaks smaller than 2 litres per minute, but has stated that “[t]hird-party reporting, as well as surveillance activities, such as ground and aerial patrols … are effective at detecting very small leaks.”

A85000-2, Enbridge Supplemental Responses to DFN IRs at pdf page 3.

A85000-2, Enbridge Supplemental Responses to DFN IRs at pdf page 2 and 3.

109. Enbridge declined a request from SKFN and DFN to file a Leak Detection System manual specific to the project with the NEB, claiming that “Enbridge’s leak detection capability has not changed with this Project. The probability of a leak has not increased with this Project. This concern is an ongoing operational concern and the requests are outside the scope of the Project.” Enbridge went on to say, during the oral portion of the Hearing, that “[t]he leak detection plan is a sensitive document”.

A87044-4, Attachment 2 to IR No. 4.7 at pdf page 29.

A87180 NEB Hearing Transcript Vol. 2 para. 1776.

110. It was confirmed in during the oral portion of the Hearing that Enbridge will not be able to conduct any integrity digs on the newly installed segment of pipeline under the Mackenzie River or anywhere directly under the slip plane on the banks of the River. Enbridge has offered no explanation for how its aerial patrols or other visual detection methods will be effective for the newly installed segment of pipeline in the absence of the ability to conduct integrity digs.

A87180 NEB Hearing Transcript Vol. 2 para. 1837.

111. Enbridge declined LKFN’s request to collaboratively develop and Environmental Protection Plan and Emergency Response Plan for the operational phase of the newly installed segment of pipeline and claimed that “this request is outside the scope of the

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Project.” Enbridge claimed that its Northern Region Integrated Contingency Plan and Northern Region Field Emergency Response Plan “are in place for operations.”

A87044-4, Attachment 2 to IR No. 4.7 at pdf page 13.

112. Enbridge’s Northern Region Integrated Contingency Plan and Northern Region Field Emergency Response Plan were not filed as evidence, but are publicly available and Enbridge has provided links to these documents. Both plans are current for 2016-2017, but neither plan specifically addresses the newly installed segment of pipeline that is proposed to be buried under the Mackenzie River. Neither plan addresses complications or procedures for detecting or responding to leaks under ice in the winter. These plans to do not address the concerns LKFN has about spill and leak detection and response in the new segment of pipeline.

113. Enbridge’s stated position is “that a pipeline that’s properly maintained and properly repaired in advance of having failures is a pipeline that can be managed indefinitely.” Enbridge has offered no information to LKFN on how it would maintain or repair the new segment of pipeline, or, in absence of any repairs or maintenance, how long this new segment of pipeline can be safely managed and, thus, safely operate.

A87180 NEB Hearing Transcript Vol. 2 para. 1786.

114. Enbridge will run inline inspection tools after the pipe is pulled through the annulus to inspect for gouging, metal loss, cracking, and deformation. No plans or contingencies have been provided by Enbridge describing how they would repair the pipe or conduct further inspections if the tools indicate any damage to the pipe.

A87180 NEB Hearing Transcript Vol. 2 para. 1810.

115. In sum, Enbridge has to date declined to respond to numerous requests from LKFN and the other Dene communities for more information regarding leak detection and spill contingency planning, or provide the detailed technical information required for the Dene communities to properly assess the scope of risk and how mitigation plans adequately address any impacts on Dene rights.

VII. Legacy Issues

116. The evidence in this Hearing shows that, despite knowing the constraints in the scope of the Board’s review, LKFN and other Dene view legacy issues as very important and unresolved. The evidence shows promises of compensation that were not fulfilled, representations that Line 21 would not remain operation for as long as it has, and concerns that the entirety of Line 21 in the Dehcho Region is old, has reduced animal abundance near the right of way, is prone to leaks, and at risk of failure due to permafrost melt and ground movement.

Exhibit A87138-1, Hearing Transcript Vol 1 paras. 222, 370, 485, 515, 525, 585, 680, 683, 705, 707, 761, 764, 866, 874, 911, and 937.

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117. For instance, Dehcho Grand Chief Herb Norwegian testified:

Yeah. Just to the Board and if Enbridge is here also, you know, with the -- I know that when in '85 when we were having the discussion about the pipeline and at that time we were told -- we were guaranteed that the pipeline was only going to last for 25 years. And then of course, everyone said, "Well, by that time everything would have been settled and we would have been living a happy life.

But nevertheless, the line is still there and I think the pipeline is now going on to 30 years old.

And over the years, you know, we saw some pretty major problems with it: pinhole leaks, deteriorations, slumpage that's coming in. We haven't heard anything or noticed anything on the crossing on the Mackenzie River yet, but I think what needs to be seriously looked at in light of that it might be a major, major undertaking is that that entire pipeline needs to be changed. And you just can't play with just pieces and bits and pieces of it. If you're going to do justice and you want it done right, you need to change the entire pipeline because it's -- at some point we're going to have a major catastrophe and we're the ones that are going to have to end up living with it.

And before that happens, let's make an intelligent decision and start looking at the big picture, because this is what we're dealing with in this ever-changing climate, you know, ever-changing world, you never know what to expect. I mean, these things are there and one morning we get up and we have a horror story on our hands. And so we're concerned about that. So that was my concern. Thank you.”

Exhibit A87138, Hearing Transcript Vol 1 paras. 615 through 618.

118. Many Dene, including LKFN members, have been promised compensation in the past for the impacts of the existing pipeline. LKFN and other Dene have not been properly compensated for the impacts of the pipeline, and for the land use required for the existing pipeline. This is a major legacy issue for LKFNLKFN’s final oral arguments summarized the Dene concerns about the legacy of the existing Project and how it cannot be delinked from the current Project application:

And there's a bigger picture here that cannot be ignored. We're dealing with the two-and-a-half kilometre replacement application and the decommissioning application, but the reality is that this happens in the context of a 30 to 40-year history between the communities and Enbridge and with this pipeline. If you are thinking

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about this through the language of western technical science you would say there is a cumulative effect on the environment, including the biophysical environment and the socio-economic environment. And if you are thinking about this from a Dene perspective you would say that this pipeline is a scar, a wound on the land. That is what the Elders called it in their testimony. It represents the history of disrespect for Dene lands. It represents the history of disrespect for the Dene way of life. It represents the history of the poor relationship between Enbridge and the local Dene communities that we are all trying to address.

A87283 at para. 4188 and following

119. LKFN recognizes that these concerns are outside the scope of this Hearing, as is the Leave to Open review for Line 21. However, it is important to state that due to the numerous outstanding concerns and legacy issues around the entirety of Line 21, and due to the issues raised around the integrity of Line 21 and the ability of the pipeline to continue operating safely, it is LKFN’s position that a robust Leave to Open review with full participation by LKFN and other impacted Dene is required before Line 21 can continue operation.

VIII. Conclusion

120. LKFN are Dene and Łí́í́dlįį Kų́ę́ is their land. Canada entered into a Treaty relationship with LKFN in 1921, but LKFN has never ceded or surrender their land to Canada. LKFN’s has always occupied Łí́í́dlįį Kų́ę́, known as Fort Simpson on the map, and the surrounding land. LKFN continues to assert its Dene rights and title to Łí́í́dlįį Kų́ę́ along with the rest of its traditional territory.

121. The proposed project area is utilized by LKFN for a vast array of purposes ranging from harvesting of fish and meat for food, to spiritual gathering and practices. LKFN’s long- standing relationship with this land is of the utmost importance, and must be protected. The proposed project activities, if conducted with disregard for the significance of the land, waters, animals, and plants to LKFN could cause serious impacts to LKFN’s Dene rights.

122. Enbridge has approached this project with disregard for LKFN’s rights, land, and knowledge. This is reflected in Enbridge’s application documents, which do not reflect the concerns raised by LKFN and other Dene, and do not address the full scope of potential impacts or the severity of potential impacts. In many cases, Enbridge’s application documents do not even acknowledge the existence of potential impacts to Dene rights.

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123. Nothing short of LKFN’s informed consent is allowable before this project can proceed.

All of which is respectfully submitted to the National Energy Board on this 9th day of November, 2017.

______

Lorraine Y. Land

Legal Counsel for Łí́í́dlįį Kų́ę́ First Nation

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Table 1: Table of Enbridge Commitments and Non-Commitments

Transcript Party Commitment Commit- Commitment made by Enbridge pinpoint requesting Requested ment by commit- Enbridge ment NEB Vol. 2 LKFN work with the local General Commitment to general dialogue but para 1128, First Nation to (No, but no specific commitment to First 1136 determine maybe) Nation final say appropriate code of conduct for the “You are correct; there is no specific camp in the agreement in place to address those host community specific impacts. However, you location (1128) know, we have committed to continue to work with LKFN, and the other communities, for ongoing engagement.”

NEB Vol.2 LKFN to establish and fund a General Commitment to general dialogue but para 1138, women’s advisory (No but no specific commitment to First 1141 council to assist in maybe in Nation final say addressing impact of future) transient workers on “Enbridge is committed to continue local communities to engage with the communities as (para 1138) this project moves forward, and we will continue to do that, and this is an issue that we’ll continue to have discussions outside of this forum on.” (para 1141)

NEB Vol. 2 LKFN agree to compensate General Commitment to general dialogue but para any people who have (No) no specific commitment to 1211- commercial traplines compensation for those with trap 1212 in the local study area lines or the personal harvesting sites in the “Enbridge has previously local study area? committed that we will work with (para 1211) the communities to work with trappers, but no, we have not committed to compensation. “ (para 112)

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Transcript Party Commitment Commit- Commitment made by Enbridge pinpoint requesting Requested ment by commit- Enbridge ment NEB Vol. 2 LKFN para co-develop the General Commitment to general dialogue but 1233 - Environmental (maybe) no specific commitment to First 1234 Protection Plan with Nation final say the FN (para 1233) “Enbridge has committed to working with the communities to update communication protocols, so we will do that.” (para 1234)

NEB Vol. 2 LKFN para Commit to a timeline General Commitment to general notification 1260 - to amend the (yes) re: spills but no specific commitment 1261 Environmental to timeline, process, or First Nation Protection Plan to final say include a specific process for notifying “We've made it clear that we're local harvesters of an committed to contacting our inadvertent release of stakeholders in this unlikely event. drilling fluids We just aren't at the point yet in (para 1262) (1260) development where we have specific contact, again, numbers and emails established, but certainly that will part of our -- or establishing those will be part of the process as we move forward closer to execution.” (para 1261)

“We are currently planning to conduct our annual update visits in mid-November and at that time we'll be updating the information to include the harvesters as well.” (para 1263)

NEB Vol. 2 LKFN Request to General commitment to work with para 1294, acknowledge impacts General Mouse family but no specific 1305, on Mouse Family and (yes) commitment to First Nation final say 1309 Mouse family usage of local study area as “We certainly need to look at, you well as project area know, a controlled crossing point (para 1294) for them on the right-away to safely get across. We also will commit to

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Transcript Party Commitment Commit- Commitment made by Enbridge pinpoint requesting Requested ment by commit- Enbridge ment working with the Mouse family as identifying and establishing a safe lane of traffic for them. We understand the impact. And to neutralize that certainly the construction team is willing to work and get that put in place.” (para 1305)

“With overnight locations, absolutely we’re concerned about traffic, you know, on the temporary access road from the south side. We’d have to understand, with consultation, what the plan is for overnight sites, who could be out there, and then adjust and control traffic, work with them accordingly.” (para 1309) General commitment to future NEB Vol. 2 Have you already General agreement with Mouse family but no para 1409, come to an agreement (no) specific commitment to First Nation 1414, with the Mouse Family final say 1435 to reduce impacts as a result of the increased “No. As I indicated earlier, Ms. Land, traffic on the right-of- we haven't -- we discussed this last way and the people in night in further detail after hearing the south camp (para Elizabeth speak yesterday. That will 1409 and 1421) have to be put in place going forward. We understand and respect the concern that was raised, and from a traffic accommodation plan, we do have to work with them to get something that is suitable for them.” (para 1414)

That is correct. We do not have an agreement yet at this time. (para 1422

“wherever possible, we've taken land that is already on right-of-way and utilized it. And then again, the

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Transcript Party Commitment Commit- Commitment made by Enbridge pinpoint requesting Requested ment by commit- Enbridge ment access itself, we'll be utilizing our active right-of-way to minimize any further impacts from the project.” (para 1435 NEB Vol. 2 LKFN Request to General No Commitment to specifying para 1346, commitment to a (no) timeline for project impacts related 1347) timeline for project to construction or post-construction impacts during construction and after “I think this is a difficult thing for us construction (para to comment on. I'd be speculating if 1346) I tried to comment on the impact, you know, a four-year impact to wildlife associated with the right-of- way.” (para 1347)

NEB Vol. 2 LKFN para 1351, Commit to specific General Commitment to general dialogue but 1353) accommodation for (no) no specific commitment to First LKFN’s harvesters Nation final say or compensation regarding the disruption of their use “We're going to continue to engage of the land or their with LKFN and work with them and harvesting in the their members to better understand project area over the the impacts. And we will hope to next four or five years hear from them as we -- as the (para 1351) project progresses and it goes into operation. And we can deal with impacts that they bring forward at those times. “ (para 1352)

NEB Vol. 2 LKFN General commitment to confidential para 1353, Is there an existing General IBA process agreement but no 1355, commitment to (no) specific commitment to impact 1362 compensate mitigation or benefit scheme commercial trappers who have trap lines “The discussions about that run through the compensation are outside -- should local study area in -- are outside of this forum and, as both the north and the you're probably aware, are south project areas confidential.” (para 1355) (para 1353) “That is correct [there is no agreement].” (para 1362

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Transcript Party Commitment Commit- Commitment made by Enbridge pinpoint requesting Requested ment by commit- Enbridge ment NEB Vol. 2 LKFN Any existing specific General General commitment to hire para 1384, agreements about (no) monitors for specific purposes, but 1385, which FN monitors no specific commitment to hire 1386, will be hired for what independent monitors from the FN 1387 purposes? (para 1384) “We've committed to making available a variety of monitoring positions for the project. So those -- do you want me to go through them? (para 1385)

Those would include an environmental monitor. They would include turbidity monitor, wildlife monitor and a cultural monitor. So those would be positions made available, and those positions would be -- or the duration of those positions would mirror the duration of the execution of the project and would follow the project schedule, which could include a 24-hour activity period. So there would be multiple positions. (para 1386)

We've also committed to those monitors on both sides of the river, sort of both of the main construction areas, so that monitoring could occur sort of continuously throughout the execution process.” (para 1387)

“And just -- so I guess, we could go back to find it, but overall, on the response we had looked at the initial estimate that there could be 14 of the monitors engaged for a total for work on both sides of the river during the duration. And along with that, Enbridge will be, you know, consulting on this as, you know, our intent would be to work

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Transcript Party Commitment Commit- Commitment made by Enbridge pinpoint requesting Requested ment by commit- Enbridge ment with one liaison that would be working closely with the communities to ensure that the monitors are with us during the day, you know, and are showing up, you know, to complete their roles. It will be an important role on the project.” (para 1403)

NEB Vol. 2 LKFN Commit to allow LKFN General General commitment to dialogue but para 1465, to review and respond (maybe) no specific commitment to FN final 1469, to the companies say 1471 being considered for barging contract? “we’d be open for discussion, it just (para 1465) has not happened yet.” (para 1471)

So that company has sensitivities around proper mitigation measures, aquatic mitigation measures, and also contracting opportunities that affect the local First Nation economy. (para 1469) NEB Vol. 2 LKFN General General commitment to dialogue but para 1480, Commit to enter into (NO) no specific commitment to FN final 1478, an agreement with say 1485, LKFN regarding the 1491 development of the “Enbridge will continue to work aquatic mitigation with LKFN and address their strategy? (para 1480) concerns as they’re raised on that With the agreement matter.” (para 1478) provisions including funding for LKFN, “Enbridge has provided capacity technical experts to support to LKFN throughout the participate in the engagement on this project and, you process, and for LKFN know, we will continue to engage to request certain with LKFN as the project moves additions or deletions forward. If capacity is deemed from mitigation appropriate or reasonable based on measures? the discussions that we’re having,

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Transcript Party Commitment Commit- Commitment made by Enbridge pinpoint requesting Requested ment by commit- Enbridge ment that’s something Enbridge will consider in the future, something outside of this process”. (para 1485)

“What we can’t do is commit to funding because I’m unsure of what the request is and whether it’s appropriate or -- you know, we would need to agree to that and those are discussions that we have not had so I cannot say right now that we commit to it.” (para 1491) LKFN Implied commitment General General commitment to base request to base (No) mitigation efforts off of assumption NEB Vol. 2 mitigation measures of wildlife presence but no specific para 1516, off specific studies of commitment to identify wildlife 1536 wildlife in all four impacted by the project seasons in study area

“ Maybe I'll just ask it “no, there were not wildlife-specific flat out. There were no studies done in those seasons. But I on-site studies done in think again, it's important to point winter, spring, or fall, out that the mitigations assume correct? “ (para 1516) utilization. They assume that wildlife are present and that they're using these habitats” (para 1517)

“However, our employees conduct aerial line patrols every two weeks, and they record wildlife sightings along the right-of-way. And that data is provided to Environment and Natural Resources and the Dehcho on a quarterly basis.” (para 1536)

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Transcript Party Commitment Commit- Commitment made by Enbridge pinpoint requesting Requested ment by commit- Enbridge ment NEB Vol. 2 LKFN Commit to notify local General General commitment to notice para 1569, FN of spillage within (no) within 24 hours but no specific 1570, 3-4 hours, which is the commitment to notice within crucial 1571, time it takes for spill 3 hour window 1572 to reach FN (para 1569) (1571) “So our commitment is within 24 hours. And I think, logistically, we would reach out to all of those folks that we commit to in that contact section, 3.4.2. We certainly wouldn't wait 24 hours to contact stakeholders.” (para 1570)

“So our current commitment is as outlined in that section, which is the regulator, the town, and our stakeholders within 24 hours. That's our current commitment.” (para 1572)

NEB Vol. 2 LKFN (Possible commitment General General commitment to future spill para 1624 request) Does (no) contingency plan but no specific -, 1626 Enbridge have any commitment to particular cleanup remediation or measures cleanup plans in the event of an “So our detailed spill contingency inadvertent return plan has not been developed for an specifically to a inadvertent return yet, but it would watercourse during involve typical recovery methods. HDD under the However, again, the volume Mackenzie River? released and the non-toxic nature of (para 1625) the volume could make it difficult to recover any inadvertent return that made it to the river. (para 1626)

NEB Vol. 2 LKFN General General commitment to noise para 1887, Commit to install (maybe to mitigation measures in the future 1899, noise mitigation sound but no specific commitment to 1898, measures such as barriers, specific measures 1900, sound barriers? (para but no 1901 1897) And to include blanket “Yes. We’ve used sound barriers in a no idling policy for prohibiti the past and we certainly would be heavy equipment in on on willing to look at what we had to do

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Transcript Party Commitment Commit- Commitment made by Enbridge pinpoint requesting Requested ment by commit- Enbridge ment mitigation measures? idling to keep it to basically levels within (para 1899) heavy regulatory guidelines. And yeah, it equipmen might mean equipment t) modifications as far as different mufflers but it could go so far as some screening devices. “ (para 1898)

“So I would anticipate … [rigs] be running fulltime as we get started.” (para 1900). “And we do in our EPP commit to no unnecessary idling of vehicles or equipment.” (para 1901)

NEB Vol. 2 LKFN General General commitment to dialogue but para 1921, Commitment to use (no) no specific commitment to use FN 1922, the First Nations' own monitors 1931 cultural monitors to assist in monitoring “ So I think at this point what we these areas in the have committed to is providing the event that there are opportunity for cultural monitors to cultural sites that are participate in the project. Who encountered including those monitors are -- and as you archaeological, burial, indicated in your previous question and other sites? (para -- those agreements have not been 1921) made yet. Who those monitors hasn’t been determined at this point.” (para 1922)

So if a cultural site is discovered or is identified or suspected in the project, in the project area, or during project execution, our commitment is to stop work and then to engage the community to help us identify, mitigate, and move forward. (para 1931)

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Transcript Party Commitment Commit- Commitment made by Enbridge pinpoint requesting Requested ment by commit- Enbridge ment NEB Vol. 2 LKFN General General commitment to dialogue but para 1934, Commitment to allow (no) no specific commitment to First 1935 FN to have a definitive Nation final say say in what the appropriate “I don't think that's a commitment mitigation should be that I can make today. But again, I for their cultural sites? think we've demonstrated a (para 1934) willingness to engage, and I think if -- again, if a cultural site were identified all work would stop and we would engage the community in a significant way to make sure that any cultural resource was preserved.” (para 1935)

NEB Vol. 2 LKFN General General commitment to dialogue but para 2004 Commit to funding (no) no specific commitment First Nation - 2005 jobs through Dehcho funding K'ehondi as has been requested by the First “Enbridge is -- you know, through Nations? (para 2004) discussions with the communities, we have heard the request for support with Dehcho K'ehondi program. This is something we will continue to speak to them about beyond the hearing.” (para 2005)

NEB Vol. 2 LKFN Commit to negotiate General General commitment to dialogue but para 2011, with union to hire (no) no specific commitment to hire FN or 2012, local indigenous negotiate with union to all hires 2018 workers (para 2011) from FN

“So again, I'm probably not in the position today to commit to it. You know, Enbridge certainly will take that under consideration, look at what functions could be, you know, filled that way. But again, I'd have to look at the crew configuration, and I haven't got to that level of detail yet.” (2012) “Enbridge certainly is aware and, you know, is trying to fulfil that, as

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Transcript Party Commitment Commit- Commitment made by Enbridge pinpoint requesting Requested ment by commit- Enbridge ment we discussed earlier, with the opportunities made available. You know, if decisions are made and conditions are such Enbridge would certainly abide by those and follow those conditions “ (para 2018) NEB Vol. 2 LKFN para 2139 Commit to reconsider General General commitment to dialogue but - 2140 their position that (no) no specific commitment to First there will be no Nation final say or incorporation of material impacts on First Nation data the land use, wellbeing, and “So I'm not sure if we're livelihood of LKFN, in reconsidering this statement light of the Indigenous specifically, but certainly the Knowledge and Land information provided in LKFN's TK Use Study. (para Study will be incorporated into our 2139) Environmental Protection Plan and our Project Execution Plan as applicable. So certainly, all of that information is greatly appreciated, and absolutely, as our draft EPP evolves towards a final version for execution purposes, that information will be incorporated, absolutely; yes. “ (para 2140) NEB Vol. 2 SKFN General para 2171, Commit to fund an (no) General commitment to dialogue but 2175 independent no specific commitment to First monitoring program Nation Funding or Final Say for FN monitors, that allows for job hires “You know, through our discussions and collaboration to and through the engagement satisfy community process, we are aware of the concerns. (para 1271- community's desire for an ongoing 1272) monitoring program, and they've often referenced the Dehcho K'ehondi program.” (para 2175)

“That is something that we've heard, and we'll continue to speak to them outside of this hearing process about that” (para 2176).

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Transcript Party Commitment Commit- Commitment made by Enbridge pinpoint requesting Requested ment by commit- Enbridge ment NEB Vol. 2 SKFN General para 2331, Commit to developing (no) General commitment to possible 2334 a full noise mitigation dialogue but no specific commitment plan that would to Noise Monitoring Program include monitoring and thresholds for “I'll commit to considering a noise corrective action? monitoring or will commit to (para 2331) considering a noise monitoring program but again, it will depend on aspects of the project that aren't yet determined”. (para 2334)

NEB Vol DFN General 3.para Would Enbridge (no) General commitment to possible 2752, consult with FN’s to dialogue but no specific commitment 2774 create agreements for to Impact Agreements impacts from this pipeline as a result of “No, Enbridge cannot commit to leaks? (para 2752) that because without knowing the specifics of what an agreement Commit to ensuring might entail we cannot make -- we that an agreement is cannot commit to signing an in place to deal with agreement.” (2775) some of these impacts? (2774) “Enbridge will continue to engage with the local Indigenous communities and if, through those discussions an agreement is reached, that's good. But it may not be able to reach agreements so I'm not committing to signing agreements.” (para 2781)

NEB Vol 3., DFN Implied commitment General General commitment to possible para 2854, request to include (no) dialogue but no specific commitment 2862, Dehcho monitors on to First Nation say permafrost surveys. (2854) “we're willing to continue discussions about monitoring programs outside of the hearing.” (2862)

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Transcript Party Commitment Commit- Commitment made by Enbridge pinpoint requesting Requested ment by commit- Enbridge ment NEB Vol 3. DFN Commit to a General General commitment to fish habitat (3034, sedimentation study (yes) study but no specific commitment to 3036) that explores the First Nation final say potential of inadvertent release, “So yes, we would be willing to and implications on commit to a directed fish and fish fish and fish habitat, habitat assessment downstream of and include that in the the HDD. We’d be looking to work revised draft of their with First Nations to understand EPP, along with and specifically the concerns and that’s knowledge of affected the directed piece. So a fish and fish local First Nation habitat assessment as directed or (3034) by directed by the concerns of the communities, yes.” (3036) NEB Vol 3. DFN Commit to a women's General General commitment to possible (3082, advisory panel for (no) dialogue but no specific commitment 3083) work camp protocols to First Nation final say or funding (3082) “That's correct. We're going to work with the communities and if these issues come up we'll work to mitigate them. The exact form of those discussions right now, I'm not sure how that's going to occur.” (3083)

NEB Vol 3. DFN Commit to working General General commitment to dialogue but para 3104, with FN to develop (yes) no specific commitment to FN final 3105 system for reporting say Code of Conduct violations (para 3104) “As part of our construction process, as I mentioned, that would be the situation on every construction job we do, to come in and establish that rapport and establish those communication links so direct communication could occur to the right people. I have no problem committing to do that with this construction team.” (para 3105)

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Transcript Party Commitment Commit- Commitment made by Enbridge pinpoint requesting Requested ment by commit- Enbridge ment NEB Vol 3. DFN General Specific commitment to funding para 3138, Commit to ensuring (maybe) dialogue about monitoring process, 3148, that training and but no commitment to training and 3143, capacity dollars are capacity building of FN monitors 3150, built into an themselves 3153 agreement for wildlife, environmental, “So I think what we're committing cultural, and turbidity to is to seek input on the final job monitoring by FN descriptions. As I said, they have monitors? (para 3138) not yet been developed. So we're -- we've committed to your input or Example of First Nations' input on those commitment descriptions to ensure that they are requested: meaningful and that they can address, again, some of the aspects “One of the positions of monitoring that are beyond -- is turbidity monitor. strictly beyond employment.” (para So if we're going to 3142) have a local First Person fulfill a “Enbridge has provided to this point community-based in the project process capacity monitoring program, funding. So for the review of those where their job is to job roles, I don't see an issue with be a turbidity monitor, continuing that capacity funding. As will Enbridge provide far as -- and I think this is where I some training got a little confused with your opportunity or question, funding associated with capacity building the work completed would be a opportunity to ensure different sort of circumstance. So that they can do that paying individuals that fulfilled job effectively and these roles, again, I think Brian meaningfully?” (3148) spoke to that. But as far as determining the job roles, I think that falls into the category of capacity funding. And as I said, that's something that we have provided to this point in the process and will continue to provide as we work with you to.” (para 3143)

“there would on the job training to ensure that the folks that were ultimately hired would be able to

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Transcript Party Commitment Commit- Commitment made by Enbridge pinpoint requesting Requested ment by commit- Enbridge ment complete those tasks.” (para 3150)

“we couldn't qualify an unqualified individual to collect the turbidity sample. As I said, that's a technical expert that would have a university degree and years of experience. But we could explain the process, and I think that's what Brian was alluding to, the on the job experience that they -- that those monitors would gain from supporting that turbidity monitoring (para 3153).

“So to be clear, the monitoring itself, the water sampling and the monitoring itself, would be completed by a qualified third party technical expert.” (para 3154) NEB Vol 3. DFN Commit to a timeline General “General commitment to dialogue para 3156, for providing job (yes) within two weeks but no specific 3165 descriptions for the commitments re: timeslines for job four monitoring descriptions or description of positions monitoring capacity funding” objectives, and information about “So we could commit to being capacity funding prepared to sit down and have (3156) those initial conversations two weeks from now. “ (3165)

NEB Vol 3. DFN Commit to General General commitment to dialogue but Para 3218, compensation for (no) no specific commitment to FN 3220, temporary impacts compensation 3221 associated with construction for FN “without knowing the specifics of members (3218, what an agreement might entail, I 3220) can't commit to doing that.” (para 3221)

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Table 2: Proposed Project Conditions

Life-of-Project Community-Based Monitoring

 Prior to approval of the Project, Enbridge must provide to the NEB a copy of a binding Life-of-Project Monitoring Agreement between Enbridge and affected Dene communities, providing for a meaningful, independent Dene monitoring program for Line 21 through the Dehcho territory in perpetuity.

 The Life-of-Project monitoring program should be DFN-led, through the Dehcho K’éhodi Stewardship & Guardian Program, and must be developed collaboratively with DFN and all impacted Dene communities in the Dehcho including LFKN.

 The life-of-project monitoring program must be comprehensive and address the need for: o Ground Surveillance o Leak detection o Spill response o Permafrost monitoring o Consistent and sustained monitoring during both winter and summer o Youth involvement

 The Life-of-Project Monitoring Agreement must include provision of funding including funding for: o An Environmental Management Committee which includes representatives from Enbridge, LFKN, DFN, SKFN and PKFN, which has direct involvement in designing and implementing the monitoring program o Monitors’ wages o Spill responses o Training o Equipment

Project-Specific Community-Based Monitoring

 Prior to approval of the Project, Enbridge must provide to the NEB a copy of a binding Project-Specific Monitoring Agreement between Enbridge and affected Dene communities, providing for an independent Dene monitoring program for pre- construction, construction and post-construction Project activities, including but not limited to monitors for: o Turbidity monitoring o Wildlife and environmental monitoring o Cultural monitoring (including for archaeological, burial and other cultural sites)

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o Noise monitoring o Erosion and sediment control monitoring o Permafrost assessment and monitoring o Post-construction clean-up monitoring o Post-construction reclamation activities o Decommissioning monitoring

 The Project-Specific Monitoring Agreement must including provision of funding by Enbridge for: o Monitors’ wages o Training o Equipment

 The project-specific monitoring program should be DFN-led, through the Dehcho K’éhodi Stewardship & Guardian Program, and must be developed collaboratively with DFN and all impacted Dene including LKFN.

Training and Employment

 Prior to approval of the Project, Enbridge must provide to the NEB a copy of a binding Training and Employment Agreement between Enbridge and affected Dene communities that ensures that hiring and training opportunities are available for locally impacted communities to maximize employment opportunities with the project.

 The Training and Employment Agreement must include program objectives and community training needs, and identify training and capacity building to implement the independent monitoring program delivered through Dehcho K’éhodi.

 Enbridge must collaborate with each individual affected Dene community to discuss and provide training opportunities for members to ensure that they are able to access job opportunities during project construction and pipeline monitoring.

 Enbridge must work with affected First Nations to determine what services may be provided in the work camp that will support sustained Indigenous employment for the duration of the project.

 The Training and Employment Agreement must commit to specific targets for local, Indigenous and female work force composition. If targets can’t be met, Enbridge must be required under the Agreement to provide funding for jobs in lieu through Dehcho K’éhodi.

 The Training and Employment Agreement must include provisions regarding how Enbridge will promote the hiring of local Dene and northerners including preferential hiring of union trained Dene and northerners.

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Women’s Advisory Council

 Prior to approval of the Project, Enbridge must provide to the NEB a copy of a binding Women’s Safety and Advisory Agreement between Enbridge and affected Dene communities to address the impacts of transient workers on the local community.

 This Women’s Safety and Advisory Agreement must include provisions for funding: o the activity of the Advisory Council o the development of terms of reference for the Advisory Council o Dene awareness training for Enbridge workers o a community-based women’s safety program o other mitigation measures related to the social impact of the work camps on local communities.

 Prior to approval of the Project, Enbridge must provide to the NEB a copy of a revised and appropriate code of conduct for the work camp and workers staying in the community of Łí́í́dlįį Kų́ę́ that has been approved by Łí́í́dlįį Kų́ę́ First Nation.

 Enbridge must work with LKFN and other Dehcho Dene communities to monitor, prevent, report, and address any violence towards women and girls.

 Enbridge must prohibit outside workers from bringing drugs to the camps, which includes plans with details for prevention and enforcement.

Winter Construction Schedule

 Prior to approval, Enbridge must develop a winter construction schedule in close collaboration with LKFN.

Waste Disposal and Sumps

 As a condition of approval, Enbridge must be required to remove and transport all wastes to registered receiving facilitates. Paperwork associated with the transport of drilling waste and their receipt at registered receiving facilities should be filed with ENR.

 As a condition of approval, no sumps should be permitted for this project. This includes sumps on the right of way and sumps in already disturbed areas (i.e., areas already cleared of vegetation).

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HDD and Inadvertent Return of Drilling Fluids

 Prior to approval of the Project, Enbridge must provide to the NEB a copy of a binding Aquatic Impacts Mitigation Agreement Enbridge and affected Dene communities.

 The Aquatic Impacts Mitigation Agreement must include: o provisions that require Enbridge to notify the Łí́í́dlįį Kų́ę́ First Nation offices within 3 to 4 hours of any inadvertent release of drilling fluid (which is the time it takes for a spill to reach Łí́í́dlįį Kų́ę́) o funding for LKFN’s technical experts to participate in the aquatic impacts mitigation process, and opportunities for LKFN to provide input and revisions into the strategy for aquatic impacts mitigation o a requirement that Enbridge refrain from conducting the HDD drill during the spring Grayling spawning period. o a timeline and commitment for Enbridge to update and re-file its HDD contingency plan including revisions in the HDD to include . details of what will be done in the event that a drill may have to be abandoned . a requirement to cease HDD attempts after a certain number of failed attempts . a requirement that, in the circumstance of a certain number of failed attempts to complete the directional drill, Enbridge must be required to cease drilling, and provide an analysis of why the drill is not succeeding and provide options for an alternative method or location for review and approval by the NEB and affected Dene Nations prior to recommencing the HDD. o a requirement that Enbridge restrict all project activity to the existing Line 21 easement, including HDD activities and drill path.

Turbidity Monitoring Plan

 Prior to approval, Enbridge must provide a binding commitment to develop a Turbidity Monitoring Plan, and prior to commencement of the Project, Enbridge must provide the NEB and LKFN with a Turbidity Monitoring Plan which includes: o the requirement to deploy stationary turbidity monitoring units (i.e., sondes) along all monitoring transects o the requirement that these sondes be deployed in conjunction with on-going manual sampling performed by the monitoring crews o the requirement that at least one sonde downstream should be connected to a real-time satellite telemetry unit that will send immediate alerts to the monitors in the event that an 8% (or 25 mg/l) increase is recorded o the requirement that monitoring transects also be carried out upstream on the Liard River in order to monitor natural conditions and discern potential turbidity increases not associated with natural fluctuations

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o the requirement that turbidity monitoring be continuous at all times during all HDD activity

Fish and Fish Habitat Assessment

 Prior to approval, Enbridge must provide a binding commitment to develop a detailed Fish and Fish Habitat Assessment for the Project, and prior to commencement of the Project, Enbridge should be required to conduct a detailed species-specific and site- specific fish and fish habitat impact assessment which includes o the use the information provided in the sediment modelling report, in conjunction with the known short-term impacts of an inadvertent return, to assess and specifically discuss the potential impacts on fish that use the immediate area at various times of the year for various life cycle functions o an assessment which adequately addresses the risk of impacts to Arctic Grayling spawning habitat 800m downstream of the proposed drill path o a discussion on potential mitigation measures relating to fish species in the immediate area o an analysis of potential scour or other disruption of bed and banks from barge activity and appropriate related mitigation measures o consideration of the mitigation value of initiating turbidity monitoring during all in-water activities, including barging and barge landing deployment

 Prior to the commencement of the Project, Enbridge should be required to update the Environmental and Socio-Economic Assessment in order to integrate the data and findings of the LKFN Indigenous Knowledge and Land Use Study, along with the assessment of impacts to fish and fish habitat, to further inform the ESA and mitigation tables.

Noise Management and Mitigation Plan

 Prior to the commencement of the Project, Enbridge should be required to file with the NEB a site-specific Noise Management Plan that includes: o baseline daytime and nighttime ambient sound levels at noise sensitive areas within 500 metres of the HDD entry and exit sites o predicted noise levels caused by HDD at the most affected receptors without mitigation measures implemented o proposed HDD noise mitigation measures, including all technologically and economically feasible mitigation measures o predicted noise levels at the most affected receptors with mitigation measures implemented, including noise contour map(s) showing potentially affected receptors o an HDD noise monitoring program, including locations, methodology, and schedule

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o a description of the public and Indigenous communication and complaint response process o a contingency plan that contains proposed mitigation measures for addressing noise complaints, which may include the temporary relocation of specific residents o a notification process requiring Enbridge to provide notice to nearby residents in the event that a planned blowdown is required o a requirement that any planned blowdown will be completed during daytime hours whenever possible

Leak/Spill Detection and Response During Operation

 Prior to approval, Enbridge must provide a binding commitment to develop a Leak Detection Plan for the new segment of pipe under the Mackenzie River and under the banks of the River, and prior to commencement of the Project, Enbridge should be required to file the Plan with the NEB and LKFN, including:

o information on how Enbridge will interpret information from the inline inspection tools and other methods to detect an oil spill in ice-free and ice conditions o details on how Enbridge will detect and respond to a leak of less than 2 litres per minute, given that visual inspections, odour detection, and integrity digs are not applicable to this segment of pipe o a site-specific and detailed spill response for the new segment of pipe and the Mackenzie River in both ice-free and ice-covered conditions o detailed information on the potential impacts of leaks and spills, of varying sizes, in the new segment of pipeline including information on: . the likelihood of a leak or spill migrating to the surface, including the bed of the Mackenzie River . an analysis of how oil migrating to the River would behave (e.g., would it rise to the surface or would it sink to the bottom?) . plans for documenting and sharing with the NEB and affected Dene communities information about the geology along the drill path gained during the horizontal directional drilling process o detailed information on how the new segment of pipeline will be properly maintained and repaired so that it can operate safely for the foreseeable future o a detailed plan on how Enbridge will inspect and, if needed, repair the new segment of pipe in the inline inspection tools indicate that it has been damaged during the pull through

 Prior to the approval of the Project, Enbridge should be required to file with the NEB a copy of a binding Leak and Spill Detection Agreement between Enbridge and the affected Dene communities which includes:

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o a plan for how Enbridge will work collaboratively with affected Dene communities to monitor for and address any leaks or spills o a plan for how Enbridge will provide comprehensive and ongoing information, for the life of the new segment of pipeline, to DFN, SKFN, PKFN, and LKFN regarding geology along the drill path (after drilling is complete), the results from inline inspection tools, and all other information relating to the integrity of the new segment of pipeline o capacity funding agreement for DFN, SKFN, PKFN, and LKFN to be fully involved in leak detection and spill response for the new segment of pipe o Enbridge must provide

Community Engagement

 Prior to approval of the Project, Enbridge must provide the NEB a copy of an updated Community Engagement Plan that includes commitments to: o develop the Plan in collaboration with, and with the approval of, LKFN, SKFN, PKFN and DFN o fully addresses and accommodate all of LKFN, DFN and SKFN’s unresolved concerns, mitigation measures and approval conditions for Line 21 pipeline o specific plans notify LKFN of any spill or contaminant release into the Mackenzie River within 3 hours of detection o taking detailed minutes at any future meetings with local Dene communities, and providing Dene communities with the opportunity to review, edit, and approve these minutes o providing the Enbridge consultation log to any Dene group that was involved in meetings listed therein, to allow the nations to review, edit and approve the log before it is submitted to the regulator

Compensation to Land Users

 Prior to the approval of the Project, Enbridge must provide to the NEB a copy of a binding Land User Compensation Agreement between Enbridge and affected Dene communities that includes:

o a binding commitment to funding for a community compensation fund, to be administered by LKFN, for compensation regarding impacts on commercial Dene traplines, traditional harvesting, and historic and ongoing land use in the study area

o an agreement regarding the mitigation plans for the use of access roads and conditions of use on the road to reduce impacts on local residents as a result of increased traffic on the right-of-way

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Environmental Protection Plans and Information Sharing

 Prior to commencement of the Project, Enbridge must file with the NEB and affected Dene communities updated Environmental Protection Plans (“EPP”) for every aspect of the project that poses a risk to the environment.  Each of these EPPs should be comprehensive, and include details on site-specific mitigation.  When a decision is made between multiple options or techniques, each EPP should include the goal, mitigation options or techniques, and decision-making criteria for choosing the selected option under the circumstances.  These EPPs must include a detailed decommissioning EPP based, in part, on past experience and knowledge with respect to cleanliness for decommissioned and abandoned pipelines, and address risks associated with contamination, ice break up on the Mackenzie River, and changing permafrost conditions. A detailed assessment of the feasibility for removing this segment of pipeline should also be included in this EPP.  Enbridge should be required by the NEB, as a condition of the Project, to provide LKFN with these updated EPPs and related information well in advance (and at least 30 days in advance) of the proposed start date for construction.

Leave to Open

 In view of the unique circumstances of using HDD in a northern permafrost environment, under one of the continent’s largest rivers and in a region with potential for enormous impacts on Indigenous land, water and resource rights, LKFN recommends that a condition of the project be the opportunity for LKFN and other First Nations parties in this hearing to review and provide input regarding compliance with the other conditions for project prior to an NEB approval of the “Leave to Open” phase of the pipeline project.

Harvesting and Land Use

 To ensure the protection of the sensitive balance in the ecosystems throughout LKFN’s traditional territory and to prevent the erosion of Dene and Treaty rights, non- community members in the region associated with the Line 21 Segment Replacement project should be prohibited from hunting and fishing within the Project area during construction without the express permission of LKFN.

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