PETERT. FIOLLINGER,8.A., LL.B Barrister and Solicitor

12O4A Roland Street TELEPHONE: (8O7) 344-1313 , FAGSIMILE: (8O7) 344-1340 P7B 5M4

November23,2012

WITHOUTPREJUDICE via email no.: [email protected]

CanadianEnvironmental Assessment Agency 160 ElginStreet, 22^d Floor Ottawa,ON K1A0H3

ATTENTION. Dr LouisLaPierre, PanelChair

DearSir:

RE: PAYSPLAT FIRSTNATION . STILLWATERCOPPER MINE PROJECT - Responseto Commentson Requestfor Confidentiality

Pleasebe advisedthat the Chiefand Councilof PaysPlat First Nation have asked me to respondto the commentsfiled with the CanadianEnvironmental Assessment Agencyin responseto ChiefXavier Thompson's Request for Confidentiality dated October 15,2012.

PaysPlat First Nation (hereinafter referred to as PPFN)wishes to respondto the commentssubmitted and placedin the publicregistry with respectto its requestfor confidentialitydated October 1 5, 2012.

PPFNacknowledges having reviewed the followingdocuments:

DocumentNumber 317 - OntarioCoalition of AboriginalPeople DocumentNumber 320 - DouglasSkogstad DocumentNumber 321 - Mikeand Tammy Mineau 2

DocumentNumber 324 - JohnB.H. Edmond DocumentNumber 328 - TabathaLeBlanc - stiilwatercanada Inc. Document Number 329 - Candace Anderson - Canadian Environmental AssessmentAgency DocumentNumber 330 - Mark O'Brien- Ministryof NorthernDevelopment and Mines

In responseto the above-notedconcerns over the requestfor confidentiality, PPFN will be submittingits TraditionalEcological Knowledge (TEK) and TraditionalLand Use (TLU)to the proponentand the JointReview Panel to establishPPFN's Aboriginal and Constitutionalclaims with respectto the minefootprint and adjacentterritory that will be affectedby the Project.

Accordingto the mostrecent TEK and TLU availableto PPFN,the minefootprint and adjacentterritory is wellwithin the traditionalterritory of PPFNthat overlapswith its neighbours,Pic River First Nation and Pic Mobert First Nation. None of theTEK and TLU of PPFNadvances a claimfor exclusiveuse of the minefootprint and adjacentterritory. The evidenceindicates a shareduse with Pic RiverFirst Nation, Pic MobertFirst Nation, and otherAboriginals. After the arrivalof the Europeans,the shareduse also included Europeans.

BACKGROUND:

PPFNis consideredby the Governmentsof Canadaand Ontarioto be a signatory to the RobinsonSuperior Treaty.

TheRobinson SuperiorTreaty dated September7,1850,was entered into between the FederalCrown, and a groupknown as the "Chiefsand principalmen of the Ojibway Indiansinhabiting the northshore of LakeSuperior".

Underthe termsof the RobinsonSuperior Treaty, the Ojibwayparties present at SaultSte. Marie, purported to surrenderto Her Majestythe Queen,all of theirright, title and interestin the wholeof the territoryon the northernshore of "from BatchewanaBay to Pigeon River,at the westernextremity of said lake, and inland throughoutthat extent to the heightof landwhich separates the territorycovered by the charterof the HonourableHudson's Bay Companyfrom that said tract. And also the islandsin the saidlake within the boundariesof the Britishpossession therein".

The RobinsonSuperior Treaty states:

"andfurther to allowthe saidchiefs and their tribes the full and free privilege to hunt overthe territorynow ceded by them,and to fishin thewaters thereof as theyhave heretoforebeen in the habitof doing"

Of the Bandsor Tribesthat were identifiedby the commissionerspresent, for the signingof the RobinsonSuperior Treaty only three Ojibway First Nation bands, being the 3

Chiefsfrom Garden River, Fort William and Batchewana,togetherwith about one hundred otherOjibway people, occupied a miningLocation of the QuebecMining Company north of SaultSte. Marie near Michipicoten.

Thereis no evidence that representatives of PPFN were present when the Robinson SuperiorTreaty was signed,and PPFNdid not signthe RobinsonSuperior Treaty.

PPFNdid howevertake annuity payments and accepted a Reserve.In accordance with the SupremeCourt of Canadadecision in Ontario(Attorney General) v. Bear lsland Foundation[1991]2 S.C.R.570,the Federaland ProvincialCrown considers PPFN to haveadhered to the RobinsonSuperior Treaty.

PPFNhas advancedan AboriginalTitle claim to all of the territorythat PPFNhas since time immemorialused and occupiedagainst and Ontario. PPFN commencedthis Court Action (Court File No.: CV-2006-177) in the ParrySound Superior Courtof Justicein 2006.

This LandClaim is presentlyheld in abeyance,by agreementand pursuantto a courtorder. The Abeyance Agreement essentially allows PPFN's claim to be determined basedon the success of itsneighbour, Pic River First Nation, who hasproceeded to litigate a similarclaim against Canada and Ontario.

Inaddition to the foregoing Land Claim, PPFN has advanced a SpecificLand Claim, wherebyPPFN claims, in the alternative,that if the Courtfinds that PPFN has adhered to the RobinsonSuperior Treaty, that PPFN did notget as largea Reserveas the otherFirst Nations,who receivedReserves pursuant to the RobinsonSuperior Treaty.

The legalsubmissions of PPFNin the SpecificLand Claim can be summarizedas follows:

1" PPFNwas not representedat the Treatynegotiations in 1850and was not bound by its terms at that time;by its own wordsthe treatyis betweenthe Crownand namedChiefs and principalmen, none of whomspoke for PPFN;

2. Followingthe Treaty,members of PPFNbegan to takeannuities the onlyway that theycould - underan existingpay list- in theircase Pic River,at the HudsonBay CompanyPost located at the mouthof the Pic Riveralong Lake Superior;

3. When Canadafinally took overthe responsibilityto distributeannuities from the HBCin 1875,itwas quickly realized that PPFN was a separateBand and theywere put on theirown pay listin 1877',

4. PPFNtook a reserve,Pays Plat No. 51, whichwas firstsurveyed forthem in 1885and confirmed by Ontarioin 1914. (Thatwould make their date of firstsurvey 1885.) 4

5. By takingannuity payments and acceptinga reserve,PPFN adhered to the 1850 RobinsonSuperiorTreaty. As a result,the Crown bears the same treaty obligations to PPFNas it doesto the originalsignatories to the Treaty,including the obligation to set aside a reservecomparable in size and qualityto the reservesfor the signatories.

6. As the RobinsonSuperior Treaty lacks a reseryeformula based on a multipleof membershipfound in the numberedtreaties, the Crownand PPFNwill needto negotiatewhat shouldhave been set asidefor PPFN as a reservewhen they adheredto Treaty(including the date that they adheredto Treaty- the logical choiceswould appear to be 1852,1877 and 1885). Thosenegotiations could be basedin parton the populationat thetime of firstsurvey (as per usual Treaty Land EntitlementClaims) and what pointto pointgeographic description PPFN would havegiven at the timeof adherence.

7. Thisclaim deals only with the reserveentitlement issue; PPFN may well have other claimsrelating to the Treatyincluding the factthat they were not granted an initial Treatypayment (bonus) as were the Chiefsand principalmen that signedthe Treatyin 1850.

8 It is the submissionof PPFNthat the Treatyis bindingon boththe Crownin Right of Canadaand the Crownin Rightof Ontarioand this claimwill be submittedto Ontarioas wellas to Canada.

To establishboth its AboriginalTitle Claim, or SpecificLand Claim, PPFN has assembledevidence to proveto the Court,Canada and Ontariothat, the areasclaimed havebeen used by its peopleprior to the arrivalof the Europeansand sincethat time.

The standardof proofthat PPFNmust meet in the SuperiorCourt of Justice,and withthe Federaland ProvincialCrown is high. The Courtsand the Crownwill not accept generalinformation to prove its land claim,ie. "our peoplehave historicallytravelled, hunted,fished and gatheredin theseareas". Much of the HistoricalEvidence submitted in the LandClaim process comes from publicsources. Some of the publicsources can only be accessedwith the consentof PPFN. The FirstNation must investsignificant resourcesto retainexperts to compileand organize the information.Value is addedto the evidence.The addedvalue belongs to PPFN. The bodyof evidencecontinues to grow andevolve yearly. In FirstNation communities, housing, education and infrastructureare priorityitems. Findingdollars to do researchputs a stresson Bandfinances.

By letterdated March 31,2011, Ontario accepted PPFN's Specific Land Claim.

Canadawill shortly receive a revisedClaim for consideration.

Withinboth the Federaland Provincialprocess for negotiatingthe SpecificLand Claim,PPFN's TEK and TLU is not madepublic. There is an expectationof privacywith respectto the informationsubmitted by PPFN The LandClaims process supports the 5

FirstNation's Expectation of Privacy,unlike the transparencypromoted by the Canadian EnvironmentalAssessment Agency.

In preparationfor the CanadianEnvironmental Assessment Agency hearing process,PPFN has done significant historical research to addto itsexisting body of TEK and TLU information,already being assembled for the two landclaims.

It is in PPFN'sinterest to sharethis information with the proponent,and the Federal and Provincialgovernments, as partof the CanadianEnvironmentalAssessment Agency processto satisfythe parties,that the minesite footprint, and adjacentarea lie within the traditionaloverlapping territory that PPFN shares with its two neighbours,Pic Mobert First Nation,and PicRiver First Nation, and other Aboriginals, in thetraditional way.

PPFNdoes not allegeexclusive use of the minefootprint and adjacentarea.

The informationgathered by PPFNfor the CanadianEnvironmental Assessment Agencyprocess must be personalandspecific, to the BandMembers and their ancestors, and must specificallyreference the extentto whichthey have travelled,to fish, hunt, gather,etc., in the areaof the MineProject.

Muchof this informationis very personaland privateto BandMembers and their families,who entrustedthis informationto the communitymembers who gatheredthe information.PPFN is preparedto discloseit to specificindividuals in the Federaland ProvincialCrown, and the Proponentin order to satisfythose partiesthat PPFN's Aboriginal,Constitutional andior Treaty rights are beingadversely effected by the Project.

Section2 of the Terms of Referencestate:

"2.5 The JointReview Panel will receive:

(a) informationprovided by Aboriginalgroups regarding the mannerin whichthe Projectmay adversely affect their asserted or established Aboriginaland Treatyrights; and

(b) informationprovided by Aboriginalpersons or groupsregarding the strengthof claimin respectof assertedAboriginal and Treatyrights, whichmay includeinformation about the location,extent, basis and exerciseof thoseasserted or establishedAboriginal and Treaty rights in the areaof the Project.

2.6 The JointReview Panel will use the informationcollected pursuant to 2.41o makerecommendations which relate to themanner in which the Projectmay adverselyaffect asserted or establishedAboriginal and Treatyrights and to informits assessmentof the potentialEnvironmental Effects of the Project.

2.7 The JointReview Panel is not mandatedto makeany determinationsas to: 6

a. the validityof assertedor establishedAboriginal and Treatyrights assertedby Aboriginalgroups or the strengthof theirclaimed rights;

b. the scopeof the Crown'sduty to consultAboriginal groups; and

whethertheCrown has met its dutyto consultAboriginalgroups and, where appropriate,accommodate their interestsin respectof the potentialadverseeffects of the Projecton theirrights, recognized and affirmedin section35 of the ConsfitutionAct, 1982."

Giventhatthe Canadian EnvironmentalAssessmentAgency Panel is not mandated to makea determinationwith respectto PPFN's asserted AboriginalorTreaty Rights, there is no pointin makingthe TEK or TLU publicfor criticismand debateby others,who might challengePPFN's Aboriginal and TreatyClaims to be consultedand accommodated.

AND CON DENTIALITY ESTEDBY

Inthe event that the JointReview Panel grants PPFN confidentiality with respect to itsTEK andTLU, it is the intentionof PPFN,as indicatedin its initialrequest, to sharethis informationwith the Joint Review Panel, and those named individuals within the Canadian EnvironmentalAssessmentAgency,andthe Federaland Provincial Ministries who require accessto it.

PPFN cannotagree to have the confidentialinformation sitting in Canadaand Ontario'sfiles unprotected, for allto photocopyor emailtowhomever. PPFN has difficulty trustingothers to protectthe BandMembers who havedisclosed this information.

As MarkO'Brien and Candace Anderson will be filingseparate reports with respect toAboriginal Consultation and Accommodation to theMinisters responsible, they obviously shouldpersonally have access to the TEK and TLU. Theirrespective requests asks that "Ontario"and "Canada" have the abilityto reviewand consider the evidence.PPFN does notwant "Ontario" and "Canada"to havetheir personal information open to anyoneand everyonein the Ontarioand Canadabureaucracies. PPFN cannot control the process outlinedin the Freedomof lnformationand Privacy Act. This Act is of littlecomfort to PPFN. lt delegatesto othersthe authorityto releaseinformation. PPFN loses control of its TEK and TLU regardlessof the Freedomof lnformationand PrivacyAct.

ShouldMark O'Brien and CandaceAnderson wish to nameother individuals that musthave access to PPFN'sTEK and TLU, PPFN would be morethan willing to consider this request.PPFN wishes to be reasonablein this regard.

PPFN takes the positionthat there is nothingadverse in interestto any other participant.The materialis factual in nature,and describes the useof the landsby families and ancestors.lt is largelyhistorical information and data.

PPFNassumes and agreesthat the Proponent,Stillwater Canada Inc. should be 7 entitledto participatefully in all "in camera"sessions held in the community.

PPFNdid not ask for Stillwater Canada Inc. to builda mineon itstraditionalterritory. The minewill damage the fishery,and pushthe animalsaway. PPFNwill lose hunting, fishingand gatheringrights in the territory that it hasshared with its neighbours, since time immemorial.

PPFNis notbeing consulted by the Proponent,Stillwater Canada Inc. PPFNhas notbeen accommodated by StillwaterCanada Inc. PPFNintends to pursueits right to be meaningfullyconsulted and accommodated pursuant to section35 of the ConstitutionAct, and the variousSupreme Court of Canadadecisions affirming Aboriginal and Treaty Rights.

PPFNwishes to protectits Band Membersfrom sufferingharm as detailedin its initialrequest.

PPFNwishes to thankall of the partieswho haveshared an interestin thismatter. ftzYoursverv trulv. PETERT. HOLLINGER PTH/wr cc. client