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A87689-1 Final Arguments of Łíídlįį Kų́ę́ First Nation Final

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A87689-1 Final Arguments of Łíídlįį Kų́ę́ First Nation Final 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. Final Arguments of Łíídlįį Kųę́ ́ First Nation to the NEB - Hearing MH-001-2017 Page 2 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
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