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Ktunaxa Nation Council <contact information removed> Grassy Mountain Coal Project Joint Review Panel - Written Submissions of the Ktunaxas Nation Council September 25, 2020 _________________________________________________________________________________________________ Introduction The Ktunaxa Nation Council (the “KNC”) represents the Ktunaxa Nation, an “aboriginal peoples” within the meaning of section 35 of the Constitution Act, 1982. The KNC is the Nation-level governance body of the Ktunaxa people mandated with, among other things, protecting and asserting Ktunaxa title, rights and interests within ʔamakʔis Ktunaxa (Ktunaxa Territory). It represents four Ktunaxa communities in Canada, ʔakisq̓ nuk First Nation, ʔaq̓ am, Lower Kootenay and Tobacco Plains, as well as Ktunaxa citizens who reside outside those communities. The Ktunaxa traditionally occupied a territory extending in the west to the Arrow Lakes, in the north to Yellowhead Mountain, in the east to the foothills of western Alberta, and to the south into what are now the states of Montana, Idaho and Washington. These boundaries are provided for general guidance, and are not definitive. The Ktunaxa understanding of ʔamakʔis Ktunaxa continues to evolve as we research our history and traditional knowledge. The Ktunaxa have never signed a treaty with the Crown or otherwise ceded or surrendered Ktunaxa title and rights to ʔamakʔis Ktunaxa, including that part of Ktunaxa territory located in what is now called Alberta. The KNC’s purpose in participating in this Joint Review Panel (“Panel”) hearing regarding the Grassy Mountain Coal Mine (the “Project”) is two-fold. The KNC wishes to ensure that the Panel understands the nature of Ktunaxa’s historic and ongoing relationship to the Project area. The Panel’s report will inform the regulatory decisions made by both Canada and Alberta, and it is important that both levels of government have an understanding of Ktunaxa title and rights related to the Project area, in order to fulfill their respective duties to the Ktunaxa. The KNC also wishes to identify to the Panel the primary issues of concern related to Project impacts and mitigation measures. The KNC does not, at this point, take any position with respect to whether the Project is in the public interest or ought to be approved. Ktunaxa title, rights and interests related to the Project area The KNC has previously filed with the Panel the report entitled Ktunaxa Nation Rights and Interests in Relation to Benga Mining Ltd.’s Proposed Grassy Mountain Coal Project, Firelight Group, January 28, 2019 (ref #189; the “Firelight Report”).1 The KNC emphasizes that the Firelight Report was prepared within the limits of available funding, resources and time, and does not provide a definitive statement of Ktunaxa title and rights in the Project area. The following evidence is drawn from that report, and summarizes key elements of the information it provides. Reference should be made to the Firelight Report for further detail, including the ethnographic and oral history evidence supporting the summary provided below. The Project is located in and associated with the traditional Ktunaxa land district of qukin ʔamakʔis (Raven’s Land) which includes Kuǂwiaʔki (Crowsnest Lake, located in the Crowsnest Pass) and other areas east of the pass. In the pre-contact era, the Ktunaxa extensively used and occupied the Crowsnest Pass area for hunting, including harvesting buffalo, and for travel further onto the western plains for buffalo hunting, and trading with neighbouring Nations. Ktunaxa occupancy of the Crowsnest Pass area was anchored into the 20th century by the Ktunaxa community of k̓aqawakanmituk, also known as the Michel Prairie or Fernie band. This was an historic Ktunaxa community, with close ties to the current Ktunaxa communities of Tobacco Plains and ʔakisq̓nuk, and was located at the confluence of Michel Creek and the Elk River. The annual round for this group, and other Ktunaxa groups, included hunting bison on the eastern slopes of the Rocky Mountains accessed via Crowsnest Pass and other passes to the north and south. While the precise history of k̓aqawakanmituk is not clear, oral history and ethnographic sources indicate that at some point the community was decimated by smallpox. Surviving members joined other Ktunaxa communities where the importance of k̓aqawakanmituk and surrounding areas remained. Ktunaxa use and occupation of the Crowsnest Pass area continued throughout the 19th century and to present. The k̓aqawakanmitukinik (people of k̓aqawakanmituk), and those of other Ktunaxa communities, relied on a seasonal round that included regular bison hunts east of the Rockies in both summer and winter, as well as residence, agriculture, and harvesting in the Elk Valley and nearby areas. The annual round included hunting for sheep, deer, elk and goat, as well as other species in the Crowsnest Pass and adjacent valleys, and fishing for a variety of species at Columbia Lakes and along the Columbia River drainage, as well as at Tobacco Plains. The k̓aqawakanmituknik also cultivated tobacco. Ktunaxa hunters mined and worked mineral resources in Qukin 1 A copy of the Firelight Report is Attachment 1 to this submission. 2 ʔamakʔis to fashion tools and weapons. Of particular relevance to this Project, evidence shows that the Ktunaxa traditionally used pieces of hot coal to transport fire from one location to another. Increasing conflicts with adjacent Nations, including the Blackfoot Confederacy, in the early and mid-1800’s, decimation of the bison in the late 1800’s, and increased non-indigenous use of lands and resources resulted in reduced Ktunaxa use of the Crowsnest Pass and eastern foothills area of ʔamakʔis Ktunaxa. However, Ktunaxa families maintained a seasonal round that included travel through the Crowsnest Pass for harvesting bison until at least the 1880’s. Travel and use of the pass for cultural purposes continued following development of road and rail links. The exercise of Ktunaxa rights over the eastern slopes of the Rockies was also confirmed by agreements, or treaties, negotiated between the Ktunaxa and the Stoney Nakoda and Piikani Nations in the late 19th century that recognized the continued right of Ktunaxa to hunt on the eastern slopes. While the frequency and intensity of Ktunaxa use of the Project area diminished in the 20th century, due to the effects of colonization, population loss and displacement by settlers, national parks and industrial activities, Ktunaxa have continued to use and remain deeply connected to the Crowsnest Pass area. Ktunaxa continue to hold important spiritual and cultural connections to the area, evidenced by the oral histories and landforms named after particular events or ceremonial practices. Ktunaxa citizens continue to visit the area for harvesting purposes, including fishing and plant gathering. A map plotting data of site-specific Ktunaxa rights and values is found at p. 14 of the Firelight Report. One important value identified in the Firelight Report is the ongoing work to reintroduce bison to its historic range in the eastern foothills of the Rockies. The Ktunaxa historically hunted bison on a regular, seasonal basis, and more recently signed the Buffalo Treaty: A Treaty for Cooperation, Renewal, and Restoration with plains Nations, including the Blackfoot Confederacy. This treaty reflects the Ktunaxa’s commitment to restoring a species that was once central to the Ktunaxa economy and culture to the eastern foothills of ʔamakʔis Ktunaxa. Project impacts to Ktunaxa title, rights and interests The KNC has been in confidential, without prejudice negotiations with Benga Mines Ltd. (“Benga”) since February, with the goal of concluding a Project Agreement for the Project. The negotiations have been positive and cooperative, and we are working in good faith with Benga to develop a means of engagement through the life 3 of the Project. The parties have reached tentative agreement of several issues and we hope to complete a Project Agreement in this calendar year. While the KNC supports the use of a bilateral agreement with Benga to contribute to the management and mitigation of Project impacts to Ktunaxa title and rights, it is ultimately the Crown’s duty to ensure that those impacts are identified and accommodated. To that end, the KNC has participated in the Panel review process and provided the Panel with, among other things, detailed comments regarding the adequacy of the Project environmental impact statement (the “EIS”; see ref #178 and #345). Key concerns and issues arising from that review are identified below, along with proposed project terms and conditions that the KNC asks the Panel to recommend for incorporation into final Project approvals and permits. Context for the KNC review The proposed Project is a major coal mine in a region that is already nearing or past thresholds of significant impact on water quality, spatial disturbance, and other factors that impact Ktunaxa rights and interests. Further impacts of the Project to Ktunaxa rights include but are not limited to, current use of lands and resources, impacts to Ktunaxa health and access to wild foods especially related to contaminants, issues related to species at risk, including bison restoration, impacts related to tangible and intangible Ktunaxa cultural heritage, and impacts to water, migratory birds, and fish and fish habitat. Further information regarding these impacts are provided at pages 13 - 20 of the Firelight Report. Within ʔamakʔis Ktunaxa

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