Ktunaxa Nation Council

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

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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 there are several operating coal mines, with proposals to expand and build new mines currently going through the regulatory process, both with the Province of BC and with the Impact Assessment Agency of Canada2. For more than a decade, the KNC has been deeply engaged with other levels of government as well as proponents on these mine proposals, working to assess impacts to Ktunaxa rights and interests and to collaboratively identify, implement and monitor effectiveness of mitigation measures through EA and permit conditions. Through this ongoing work the KNC has gained valuable expertise and experience, specific to open pit coal mine operations, in collaboratively developing EA certificate conditions, permitting conditions, identifying opportunities for creative mitigation and adaptive management, and participating in monitoring opportunities both with other government and with proponents.

2 Existing Coal Mines: Fording River Operations, Greenhills Operations, Line Creek Operations, Elkview Operations. Coal Mines Under Review: Fording River Operations – Castle Expansion, Crown Mountain Coal Mine, Michel Creek Coking Coal Mine, Bingay Coal Mine. 4

As noted above, the KNC reviewed the Project EIS and provided comments to the Panel. Some of our comments were addressed by Benga, however there are several areas of interest which KNC want to ensure are brought forward to the Panel for consideration. KNC’s submission to the Panel focuses on any outstanding concerns we have with the application and our assessment of the proposed mitigations put forward by Benga as part of Addendum 12.

Fish and Fish Habitat

KNC provided comments on the Fisheries and Aquatics Technical Baseline Report, the Instream Flow Assessment Report and the Aquatic Ecology Effects Assessment. Many of these comments asked for clarification around methodology which help KNC to understand how the data was collected in order to maintain confidence in the results of the impact assessment and the adequacy of the mitigation measures. KNC are requesting that a monitoring program and adaptive management plan be developed that take our comments into consideration in order to answer some of the outstanding questions and concerns that occur in our submissions of January 21, 2019 and May 4, 2020. More information pertaining to this request can be found in Attachment 2: KNC Review and Comment on Addendum 12.

Water Quality

KNC provided several comments on the adequacy of the EIS as it pertains to surface water quality and aquatic resources in both our January 21, 2019 and May 4, 2020 submissions to the Panel. Several issues raised included, but are not limited to: - The assessment would have benefited from a conceptual site model describing contaminants, pathways and ecological receptors; - Impact assessments are lacking in several areas - bioaccumulation of selenium in ecological receptors; additional site-specific testing (i.e. Blairmore Creek); development of site-specific water quality objectives; evaluation of the potential for adverse effects based on elevated concentration of nickel, etc.; - Requirement for a nitrogen management plan to be developed prior to construction activities; - Several assumptions made are based on older information; new understandings of coal mine impacts and mitigation effectiveness are emerging, particularly in the Elk Valley region of British Columbia. KNC are requesting that monitoring and mitigation be adaptive in order to be inclusive of new information and technologies; and

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- Identification of contingency planning/alternative mitigation options with adaptive management provisions is required.

Ktunaxa Current Use of Lands and Resources

The KNC review of the EIS and subsequent addendums identified the concern that, while the assessment of impacts to Ktunaxa current use of lands and resources expresses the opinion of “no significance impacts”, it does not identify the criteria or thresholds that were used to make the significance determination. The lack of a transparent and technically defensible methodology for assessing significance is a concern. The recommended mitigation measures and conditions provided below are developed, in part, to address this deficiency, as they will provide for ongoing KNC input into the management plans that will guide Project development.

Cumulative Effects

The KNC’s comments to Benga’s response to IR 6.8 (considering cumulative effects of the Project on Indigenous Nations current use of lands and resources and cultural and physical heritage of Indigenous Peoples) noted that the cumulative effects assessment did not fully comply with the Canadian Environmental Assessment Agency’s interim Technical Guidance for “Assessing Cumulative Environmental Effects under the Canadian Environmental Assessment Act, 2012”. The cumulative effects assessment, among other issues, did not adequately consider the regional context or provide a clear assessment of the significance of cumulative effects as measured against defined criteria.

As noted above, the eastern area of ʔamakʔis Ktunaxa is already experiencing environmental impacts, primarily from coal mining, that threaten to exceed thresholds of significance on water quality, spatial disturbance, and other factors that impact Ktunaxa rights and interests. Without a proper cumulative effects assessment and mitigation, the Project threatens to contribute to that unsustainable trajectory. The KNC views the requested mitigation measures and conditions identified below as critical to ensuring Project impacts are assessed and managed in an ongoing, adaptive manner that can respond to new information, at both a local and regional level, as it develops. In addition, the KNC believes the gaps in the cumulative effects assessment need to be addressed. The Panel report should recommend that, as a condition of Project approval, Benga be required to fund the preparation of an Indigenous Nations lead cumulative effects management strategy for the Project.

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Wildlife, Vegetation, Reclamation, Soil and Terrain

KNC provided numerous comments on our review of the EIS and addendums pertaining to wildlife and vegetation. Issues raised include, but are not limited to: - Concern around Valued Component Selection which did not consider: small mammals, reptiles, listed raptors, harlequin duck, northern goshawk, badger, wolverine, rare plants, cavity nesters, - Concern with methods used during baseline data collection and determination of spatial and temporal scale for various valued components; - Existing approved and planned project activities excludes climate change, private logging, recreational tenures on crown land; - Reclamation success assumptions need to be backed up by long term monitoring studies; - Where there are uncertainties in the data, monitoring is needed to validate impacts and develop mitigation plans; - General lack of consideration of development in British Columbia in impact assessment; - Increased emphasis on post-closure monitoring for reclamation success is recommended; - In some areas, emphasis should be placed on monitoring prior to jumping to management planning to assure that assumptions are verified; - Climate change should be factored into many areas of this assessment;

Mitigation Measures

The KNC has reviewed Addendum 12 which includes mitigation measures proposed by the proponent. A detailed description of the KNC’s review and comments on proposed mitigations for this Project can be found in Attachment 2: KNC Review and Comment on Addendum 12. In summary: - KNC request that the development of any monitoring program, management planning and/or other mitigation measures is done in consultation with the KNC and consider our comments and address our concerns as outlined in our submissions of January 21, 2019 and May 4, 2020. - The Panel should recommend that, as a condition of Project approval, Benga should fund the preparation of an Indigenous Nations lead cumulative effects management strategy for the Project; - The following management plans should be developed, in consultation with the KNC, and provide for ongoing engagement with the KNC through the project life: o Construction Environmental Management Plan (including sediment and erosion control) 7

o Water Management Plan o Reclamation and Closure Plan o Adaptive Management Plan o Nitrogen Management Plan o Plan to monitor aquatic effects o Soil Management and Monitoring Plan o Conservation, Reclamation Management and Monitoring Plan (which includes detailed identification and mapping of end land use objectives and a progressive reclamation plan) o Commitment to ongoing monitoring and reporting out on reclamation progress and success

KNC witness panel and time estimate

The KNC has identified the following people as part of our witness panel. We may provide additional witnesses depending on the evidence that comes forward throughout the hearings and whether additional oral evidence is required of the Ktunaxa Nation. The KNC also reserves the right to have its legal counsel, Tim Howard, attend to assist the witness panel. His contact information is provided below.

Nicole Kapell, MA Dr. Craig Candler Land Use Research Program Coordinator Founder and CEO Project Lead, Grassy Mountain Coal Mine EA Reciprocity Research Inc. Ktunaxa Nation Council

Ray Warden Marlene Machmer, MSc, R.P. Bio Director, Lands and Resources Sector Ecologist Ktunaxa Nation Council Pandion Environmental Ltd.

Christopher Burns, MSc., R.P. Bio Jesse Sinclair, MSc, R.P.Bio Senior Fisheries Biologist Senior Aquatic Biologist LGL Limited Environmental Research LGL Ltd Environmental Research Associates Associates Tim Howard Lawyer

It is difficult to provide a reliable time estimate for the KNC’s evidence. Assuming some degree of questions from the Panel and other parties, we would anticipate

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approximately 1.5 hours for the KNC to present its evidence, and another 30 minutes for questions.

Conclusion

The KNC appreciates this opportunity to present its information to the Panel. We hope that the foregoing provides the Panel with a sense of the nature of our title, rights and interests related to the Project, as well as project terms and conditions that could be recommended by the Panel and incorporated into a final Project approval to address the same. We look forward to working with the Panel for the Grassy Mountain Coal Environmental Assessment.

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Technical Memorandum re: KNC Rights, Use and Interests Study in relation to Grassy Mountain Coal Project

TECHNICAL MEMORANDUM Ktunaxa Nation Rights and Interests in relation to Benga Mining Limited’s proposed Grassy Mountain Coal Project

Prepared By: Dr. Craig Candler and Mathew Murray, the Firelight Group Submitted To: Ktunaxa Nation Council Date: January 28, 2019

Introduction Based on a scope of work dated June 13, 2016, the Ktunaxa Lands and Resources Sector of the Ktunaxa Nation Council (KNC) retained the Firelight Group to support the completion of a Ktunaxa Knowledge and Use Study and Preliminary Assessment for the Grassy Mountain Coal Project (the Project) proposed by Benga Mining Limited (the Proponent) 1 north of Blairmore, Alberta.2 This technical memo provides a summary of results and preliminary assessment based on review of Project information provided by the Proponent, relevant EA documents including material submitted by the KNC for the 2015 Baldy Ridge Expansion (BRE) process in BC, existing KNC data for the Project area (including eastern Rocky Mountain foothills, Crowsnest Pass, and the Crowsnest River watershed), ethnohistorical and archival evidence, and interviews with Ktunaxa knowledge holders and a respected Blackfoot elder with Ktunaxa family ties. KNC work is ongoing and assessment conclusions may be modified as a result of the ongoing review process. If additional or supplemental information becomes available or if assessment conclusions are modified during the application review period, KNC

1 Benga Mining Limited is a wholly owned subsidiary of Riversdale Resources Ltd.

2 While the authors and the Ktunaxa Lands and Resources Sector (KLRS) have worked to accurately reflect existing and available information regarding Ktunaxa knowledge and convey Ktunaxa use, rights, and interests in relation to the proposed Project, information contained in this memorandum is a partial and limited depiction of the dynamic and living system of use and knowledge maintained by Ktunaxa governments, elders and citizens. It is not intended as a comprehensive or complete statement of information concerning Ktunaxa Aboriginal rights, culture, history or interests related to the Project or generally. Available Ktunaxa information will continue to grow and evolve as further research occurs over time.

The information contained here, and the participation of KLRS in the preparation of this memorandum, is without prejudice to Ktunaxa title, rights and interests and does not express or imply Ktunaxa consent to, or approval of, the Project or any other activities undertaken by the Proponent or the federal or provincial Crown. Nothing in this memo shall be construed as defining, waiving, or limiting the title, rights and interests of the Ktunaxa Nation or other Indigenous communities. Information contained here is provided for the purposes of the Grassy Mountain environmental assessment and is specific to Ktunaxa considerations regarding the Project. It should not be relied upon to inform any other processes, assessments, or decisions except with written consent from Ktunaxa Lands and Resources Sector.

1 Technical Memorandum re: KNC Rights, Use and Interests Study in relation to Grassy Mountain Coal Project

reserves the right to supplement the information contained in this report and/or reconsider its assessment of anticipated effects on Ktunaxa use, rights and interests. Based on this preliminary assessment, additional work is recommended to identify mitigations and other measures that can reliably reduce impacts, and enhance benefits for Ktunaxa use, rights and interests.

Assessment Context and Summary of Findings Available information indicates that the Project is proposed just east of the Alberta-BC border in an area considered by Ktunaxa knowledge holders to be ʔamakʔis Ktunaxa3 (Ktunaxa territory or homeland) and associated with the traditional land district of qukin ʔamakʔis (Raven’s Land) which includes Kuǂwiaʔki (the Crowsnest Pass), as well as the Michel Creek and Elk Valleys. Archival and oral histories indicate that Ktunaxa citizens rely on the Project area for the preferred practice of a range of rights and interests that rely on particular preferred or critical places, species, and practices. These include subsistence harvesting, cultural- spiritual practices including teaching of oral histories and transmission of knowledge, and use of trails and roadways that allow access to important areas and resources. Practice of Ktunaxa rights in the Project area are ongoing and current, despite serious impacts from past coal mining, road development, extirpation of bison, and ongoing Canadian colonial policies, including those associated with National Parks and protected areas. The Project is located within the spatial bounds of Treaty No. 7, signed in 1877 by Canada and several Indigenous nations residing east of the Rocky Mountains. The Ktunaxa Nation was not a party to Treaty No. 7, or any other treaty with the Canadian Crown. The Ktunaxa Nation maintains that Treaty No. 7 has no impact on Ktunaxa rights or interests associated with the Project area, and that pre-confederation Ktunaxa rights in the area continue to be in place under Indigenous law and Canada’s Constitution Act of 1982, and have never been ceded, surrendered, or given up to the Canadian Crown. The Ktunaxa Nation maintains underlying sovereign and sui generis rights to all lands and waters within its territories. The Crowsnest Pass area, like the Michel and Elk valleys to the west, has been used and occupied continuously by the Ktunaxa Nation since time immemorial. Based on historic treaties and agreements with neighboring First Nations, the Ktunaxa Nation recognizes that other First Nations from further east also have histories and rights in the Project area, alongside those of the Ktunaxa Nation. As discussed further below, the Project is likely to contribute further adverse residual impacts on Ktunaxa use, rights and interests in the Project area including, but not limited, to:

3 ʔamakʔis Ktunaxa is used by the Ktunaxa Nation in place of “territory” to refer to the spatial area understood by the Nation and its citizens as representing the extent of Ktunaxa historical use and occupancy where Ktunaxa title, rights, and/or stewardship obligations apply, and upon which Ktunaxa citizens rely.

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• Impacts on cultural-spiritual values, including sense of place and ability to pass on place-specific knowledge related to sacred landforms and Ktunaxa oral history of the Crowsnest Pass. This place-specific knowledge is reliant on the integrity of the viewscape and sensory environment surrounding qukin ɁakitǂaɁis (Crowsnest Mountain), KuǂwiaɁki (the Crowsnest Pass, and specifically Crowsnest Lake), Turtle Mountain and Frank, and other important areas within and beyond the Ktunaxa LSA; • Impacts on environmental and cultural-spiritual values associated with the integrity of water resources at the headwaters of the Crowsnest River and downstream; • Impacts on use of trails for travel and access to cultural landscapes, including important traditional Ktunaxa travel routes connecting lands west of the Rockies with the southern Alberta plains, including routes generally followed by the current Crowsnest Highway corridor; • Impacts on preferred habitation (camp) areas and subsistence harvest areas (hunting, fishing, plant gathering), including in the area of Grassy Mountain. The viability of the Project area is especially important as it is located in the only area in ʔamakʔis Ktunaxa where Ktunaxa citizens can practice hunting rights on both sides of the Rockies without interruption and interference from National Park restrictions; • Impacts on ecological values, particularly related to currently vacant habitat, movement corridors, and hunting areas for plains bison, but also for grizzly bear and other culturally important species and habitats; and • Potential impacts on Ktunaxa governance, stewardship, and relationships with neighbouring Indigenous communities in the Crowsnest Pass region.

Ktunaxa Perspective on the Project Description The Grassy Mountain Coal Project is a proposed open pit metallurgical coal mine on Grassy Mountain in ʔamakʔis Ktunaxa in southwestern Alberta. The proposed mine is located near the Crowsnest Pass, approximately 7 km north of the town of Blairmore in the foothills of the eastern slope of the Rocky Mountains, and in an area already impacted by past underground and above ground coal mining activity. According to the proponent’s Project description (Millenium EMS Solutions Ltd., 2015), anticipated economic benefits will be felt most strongly in the Municipality of Crowsnest Pass and the Municipality of Ranchlands, and to a lesser degree neighbouring non-Indigenous communities to the west, such as Sparwood, Elkford and Fernie. Ktunaxa experience with past mining in the Crowsnest Pass area is one where most or all socio-economic benefits are received by non-Indigenous communities and workers, and a disproportionate share of impacts are received by Indigenous communities, including the Ktunaxa Nation. This ‘business as usual’ approach results in a net adverse impact for Ktunaxa citizens and continued erosion of Ktunaxa use, rights, and interests. KNC understands the Project to include mine construction, operations, decommissioning and reclamation of the following components:

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• an open pit surface coal mine with service road networks and water management structures; • a washing and processing facility, the Coal Handling and Processing Plant (CHPP) • associated infrastructure including a product coal conveyor system connecting the CHPP to a rail load-out facility, an access corridor, maintenance shops, power lines and other facilities; and • transport of produced coal from the Project area westward to marine terminals on the British Columbia coast by Canadian Pacific (CP) Railway. While the focus of exploration, technical and environmental work comprises an area of approximately 2800 ha, the Project footprint is listed as an area of 1520.7 ha, of which approximately 1222 ha is open pit mine pit (Millennium EMS Solutions Ltd., 2016). The mine life of the Grassy Mountain Coal Project is projected as 24 years with potential extension. KNC understands that the Proponent anticipates Phase 1 construction, commissioning, and production ramp-up will take approximately three years following initial coal production. Expected production capacity at Phase 1 is 2 Million tonnes per annum (Mt/a), followed by a Phase 2 target coal production rate of 4 Mt/a for an additional 22 years (to 2042). During Phase 2, an average of 37 million cubic metres of rock will be mined per year at Grassy Mountain (Millennium EMS Solutions Ltd. 2015: 17).4 Product coal produced at Grassy Mountain will be transported by haul road and conveyor to the rail load out facility for transport by rail.

Ktunaxa Communities and Reserves The Ktunaxa Nation is made up of all Ktunaxa citizens residing both within and outside of ʔamakʔis Ktunaxa, including member communities and their citizens. The northern portion of ʔamakʔis Ktunaxa has historically been claimed by Canada, while the southern portion is claimed by the United States. In Canada, the member communities of the Ktunaxa Nation include, akink’umłasnuqłiʔit (Tobacco Plains Band), ʔaq’am (St. Mary’s Band), yaqan nuʔkiy (Lower Kootenay Band), and ʔakisq’nuk (Columbia Lake Band). In the United States, Ktunaxa communities include, ʔaq’anqmi (Kootenai Tribe of Idaho near Bonners Ferry, Idaho), and k’upawiȼq’nuk (Ksanka Band near Elmo, Montana). The Ktunaxa Nation maintains unceded Aboriginal title in much of what is now considered the East and West Kootenays. The British Columbia (BC) portion of the traditional territory is subject to ongoing treaty negotiations with the Province of BC and the Government of Canada. On November 30th, 2018, Canada, BC and the Ktunaxa Nation signed the “Ktunaxa Nation Rights Recognition and Core Treaty Memorandum of Understanding”. Among other things, this MOU confirms that the Ktunaxa Nation treaty negotiations have moved from stage 4 to stage 5.

4 A full description of coal production process is outlined in section 2.3.2 (p17-18) of Millennium EMS Solutions Ltd.’s (2015) project description.

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The Ktunaxa Nation maintains underlying sovereign and sui generis title to all lands and waters within its territories, however the Canadian government has set aside only a small number of federal Indian Reserves for Ktunaxa Nation communities, including: • akink’umłasnuqłiʔit (Tobacco Plains near Grasmere) – two reserves (Tobacco Plains 2, St. Mary’s 1A);

• ʔaq’am (St. Mary’s Band near Cranbrook) – five reserves (Bummers Flat 6; Cassimayooks (Mayook) 5; Isidore’s Ranch 4; Kootenay 1; St. Mary’s 1A);

• yaqan nuʔkiy (Lower Kootenay Band near Creston): nine reserves (Creston 1; Lower Kootenay 1A; Lower Kootenay 1B; Lower Kootenay 1C; Lower Kootenay 2; Lower Kootenay 3; Lower Kootenay 4; Lower Kootenay 5; St. Mary’s 1A); and

• ʔakisq’nuk (Columbia Lake near Windermere): two reserves (Columbia Lake 3 and St. Mary’s 1A). The nearest Ktunaxa communities to the Project are akink’umłasnuqłiʔit and ʔaq’am, located approximately 82 km southwest and 88 km west, respectively (as the crow flies).

Methods and Scope This technical report provides a summary of results based on review of existing KNC use and occupancy data, additional semi-structured interviews with Ktunaxa knowledge holders regarding the Project and project area, one group interview with key Ktunaxa and Blackfoot knowledge holders conducted in 2017, a site visit to the Project site with Ktunaxa knowledge holders and KNC staff and review of ethnohistorical and archival sources, as well as Project information and the Proponent’s assessment documents. All interviews were audio recorded and transcribed, and included documentation of informed consent. The purpose of the interviews, focus group, and existing data and document review, was to identify important Ktunaxa ecological and cultural values, knowledge and interests related to the Project area, and potential Project interactions. Other impacts, including impacts to Ktunaxa social, health, and economic rights, including employment, are not addressed in this memorandum. Additional work would be needed to undertake a more fulsome assessment. Interview and mapping protocols used were based on standard techniques (Tobias 2009; DeRoy 2012). Ktunaxa use and occupancy information was documented in Google Earth Pro using direct-to-digital mapping at a scale of 1:50,000 or better. For the purposes of assessment, the Project footprint was defined based on physical works identified by the proponent (including mine pits, waste rock areas, roads, rail load out, processing plant, transmission lines, and water control features) plus a 250m buffer. A Ktunaxa Local Study Area (LSA) was defined within 5km the Project footprint. The footprint and LSA are show in relation to available site-specific data in Figure 1 below. The work was limited by time and budget, and involved only a small sample of Ktunaxa knowledge holders. Ktunaxa work is ongoing and findings may be revised as new Ktunaxa information becomes available. The absence of mapped Ktunaxa values in any part of ʔamakʔis Ktunaxa should not be interpreted as indicating an absence of value.

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Ktunaxa Ethnographic and Oral Historical Context in the Project Area Historically, ʔamakʔis Ktunaxa extends well east of the Rocky Mountains and south into present day Montana, Idaho, and Washington states. Ktunaxa sovereignty predates the 1846 establishment of the international boundary between Canada (then British North America) and the United States, and Ktunaxa title and rights extend across both provincial (Alberta/BC) and international borders. The core of ʔamakʔis Ktunaxa, within which Ktunaxa peoples, Ktunaxa culture, and Ktunaxa governance have persisted since time immemorial, is dominated by the valleys of the upper Columbia and Kootenay River systems, and by the slopes and peaks of the Rocky Mountains and adjacent ranges to the west (Ktunaxa Nation Council Society, 2005).

Current and historic Ktunaxa use of the Crowsnest Pass, as well as oral historical information pre-dating 1846, provides insight into the importance and continuity of Ktunaxa use and rights in the Project area, including the area of Blairmore. Archival and oral history records indicate that the Crowsnest Pass was traditionally used and occupied regularly by the Ktunaxa Nation prior to and after 1846 (the date of the Oregon Boundary Treaty) and prior to and after the signing of Treaty No. 7 in 1877. While impacts to Ktunaxa rights through land privatization, coal-related industrial development, extirpation of bison, and government policy has been widespread, Ktunaxa elders and land users continue to use and value the LSA and the surrounding area.

Based on interviews and oral histories collected in the late 19th and early 20th centuries, ethnographers (Chamberlain 1892; Curtis 1911; Boas 1918; Teit 1930; Turney-High 1941; Schaeffer 1935, 1966) clearly identify the Crowsnest Pass area as being originally and continuously occupied by Ktunaxa speaking peoples. Each of these sources supports an understanding that the Crowsnest Pass area of qukin ʔamakʔis in its entirety, was used, occupied, and effectively controlled by Ktunaxa speaking people for a long period of time prior to, and extending beyond, the assertion of British, Canadian or American sovereignty5 in the region. While exclusive Ktunaxa control of the Crowsnest Pass was challenged by the rise of the Blackfoot confederacy and disease epidemics in the late 18th and 19th centuries, Ktunaxa use and occupancy was maintained and is ongoing. Historic and modern Ktunaxa treaties and agreements with neighbouring Indigenous Nations provide the context for current sharing of rights and use in the Project area.

Ktunaxa oral histories, supported by historic archival and ethnographic data, suggest that Ktunaxa presence in the Crowsnest Pass area was anchored into the 20th century by an important Ktunaxa settlement at the confluence of Michel Creek and the Elk River habitation area named k̓aqawakanmituk, and later Michel Prairie, just west of the pass and near present-day Sparwood. This is a very important cultural area in the Elk Valley and was a base for bison hunts, and other activities east of the Rockies. It was occupied annually, and likely for a long period of time up to the late 1800’s, by the

5 American assertions of sovereignty over much of BC, including the Project area, were not resolved until the Oregon Treaty was signed in 1846.

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Michel Prairie people, also referred to as the Fernie Band, or k̓aqawakanmituknik̓. This was a historic Ktunaxa community with close ties to the current Ktunaxa communities of Tobacco Plains and ʔakisq’nuk whose annual round included hunting bison on the eastern slopes of the Rocky Mountains. As described further below, many Michel Prairie people died as a result of early smallpox epidemics, likely in the late 1700s.

The settlement of k̓aqawakanmituk at Michel Prairie included important tobacco cultivation areas, as well as areas for habitation, processing, and other features. Ktunaxa used trails that connected the valley to mountain passes to the east, including the Crowsnest Pass. Nearby areas, extending into the Crow’s Nest Pass, and including Crow’s Nest Lake and areas east of the Rockies, contain values that continue to be of central cultural and ceremonial importance for Ktunaxa people.

Based on Ktunaxa oral histories recorded by Schaeffer (1935-1937; 1966), the k̓aqawakanmituknik̓ (qakawakanmiǂuqnik in Schaeffer), along with other branches of the Ktunaxa Nation, including the katamukinik, were decimated by smallpox while hunting bison east of the Rockies, likely just prior to, or shortly after, the arrival of horses in ʔamakʔis Ktunaxa in the late 1700s. The area of the Crowsnest Pass in the vicinity of Blairmore figures prominently in oral histories of the epidemic. At least some of the survivors of the k̓aqawakanmituknik̓ returned to their people west of the Rockies and were later joined by Ktunaxa from further south under the leadership of Chief Michel (Hole-in-the-Head), an important Ktunaxa leader through the latter half of the 19th century. Chief Michel (also spelled Michelle) is mentioned by Teit (1930) and Turney- High (1941), and recalled in detail by Ktunaxa elders recorded by Schaeffer (1935-1937, 1966). Schaeffer records multiple versions, each differing slightly, of hunting buffalo east of the Rockies at a time when the Ktunaxa were decimated by an outbreak of smallpox or other illness. In the late 1960s, Chief Ambrose Gravelle provides a detailed oral history of the k̓aqawakanmituknik̓, or Michelle Prairie village, contracting smallpox when a group of Ktunaxa warriors returned home from a raid east of the Rockies. On the advice of an old woman who had dreamt of the disease, the k̓aqawakanmituknik̓ moved east onto the plains to avoid spreading the disease to other Ktunaxa communities. Only a handful of k̓aqawakanmituknik̓ survived and returned to their kin west of the Rockies. One of those survivors (Kanukǂuǂam or Whitehead6) returned to the area of k̓aqawakanmituknik̓ and Columbia Lakes. Some years later, Chief Michel married a daughter of Whitehead, became the leader of the Michel Prairie people and continued Ktunaxa use, occupation and control of the Crowsnest Pass area.

While surviving k̓aqawakanmituknik̓ went to live with other Ktunaxa communities, regular Ktunaxa use and occupancy of the Crowsnest Pass was maintained prior to and after clearing of a trail through the pass by the NWMP, and later construction of a railway by the CPR. While it is clear that other Indigenous peoples from east of the Rockies, including the Piikani (Blackfoot), and Nakoda (Stoney or Assiniboine), also used the pass for war or trade with the Ktunaxa or for other reasons through the early 1900s, and

6 In Ktunaxa, this is also a reference to bald eagle.

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at times hunted or harvested resources west of the Rockies, there is no evidence that Ktunaxa authority over the Pass area was successfully challenged.

Ktunaxa Use and the Seasonal Round in Qukin amakis and Adjacent Areas The k̓aqawakanmituk are discussed in current Ktunaxa oral histories, and those documented in Schaeffer’s field notes (1935-37, 1966), as relying on a seasonal round that included regular bison hunts east of the Rockies, 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, fishing for cutthroat trout and other fish in streams and lakes, fishing salmon at Columbia Lakes and along the Columbia River drainage, and fishing for mariah or ling in winter in the area of Tobacco Plains (Schaefer 1935; Turney-High 1941). In summer, tobacco was cultivated at k̓aqawakanmituk (Michel Prairie, now Sparwood). Close relationships were maintained with other Ktunaxa communities. One Ktunaxa elder at akink’umłasnuqłiʔit recalled that the Michel Prairie people would come to visit Tobacco Plains regularly:

…they had a big village and they had a chief and they were, they used to challenge the chief over here on horse races… (T06 Mar 1 2018)

Bison were hunted along the sheltered eastern slopes of the Rockies, including in the Project LSA, in the winter season, or farther afield on the plains in the summer. Numerous sources (e.g., Schaeffer 1935, Turney-High 1941, and use and occupancy mapping from the 2012-2015 Elk Valley Aboriginal Use and Interests Study), as well as archaeological evidence, indicate that mineral resources, including coal and stone tool material, were traditionally mined in the area. Beyond habitation, cultural use, hunting, trapping, fishing, and gathering of plants, mining of mineral sources in the Elk Valley and Crowsnest Pass area is recorded by Turney-High (1941), as is a Kutenai preference for sub-surface mining rather than surface collection:

The flint quarry near Missoula was mentioned in connection with arrow points. The Upper Kutenai also use one in Canada near Fernie, which they said was better. All informants in both subcultures (Upper and Lower Kutenai) say that flint work is the oldest and best known Kutenai art… The Kutenai preferred going to the quarries and digging for their flint claiming that surface flint was too brittle to work well... (Turney-High 1941).

As recorded by Schaeffer in field notes taken in the late 1960s, Chief Ambrose Gravelle confirmed Ktunaxa mining and use of coal from the Elk Valley and Crowsnest Pass area as a resource used by Ktunaxa to reliably transport fire in pre-contact times, especially for Ktunaxa peoples travelling east of the Rockies7:

7 It is interesting to note that one of the unique features of the 19th century qakawakanmiǂuqnik (Michel Prairie) and Tobacco Plains seasonal round was a regular winter bison hunt on the eastern slopes of the Rockies using snow shoes, as well as summer hunts (Schaeffer 1964). Schaeffer (M1100 File 80) notes that, “the Michel Prairie and Tobacco Plains Kootenay, before horses were introduced, only went on buffalo hunt in winter on snowshoes” (M1100 File 80). The ability of Ktunaxa peoples to harvest and use coal from the Elk Valley in order to maintain a reliable source of fire and heat, as

8 Technical Memorandum re: KNC Rights, Use and Interests Study in relation to Grassy Mountain Coal Project

The Kutenai used to collect coal at Coal Creek and use a piece to keep as a hot coal. They would keep a piece of heated coal in clam shells between camp sites and use it to start the fire. Mr. Fernie found a pile of coal at the Indian camp site and located the main vein on Coal Creek and claimed it. It was found and piled up by Mrs. Pierre Numa rather than by Chief David’s wife (tale was that Mrs. David wore coal on her necklace)… (Interview recorded July 15, 1969, M1100 File #160, Book 5, File Folder 4, Box 17, folio page 2).

Other work by Schaeffer, as well as archaeological work on quarries in the east and west Kootenays and trade routes for mined material extending through adjacent regions, reinforces the importance of Ktunaxa mining as critical to Ktunaxa subsistence, trade, and economy. Ktunaxa continue to practice quarrying for mineral resources, including for ceremonial use as pipes and for other purposes.

Ktunaxa families maintained a traditional seasonal round, including bison hunting on the eastern slopes of the Rockies, until at least the 1880s.Travel to the east side of the Rockies by various mountain passes, including Crow’s Nest Pass, Tornado Pass, and Fording Pass, continued until bison populations were decimated on the northern plains, but the cultural importance of bison hunting areas, including the trails and mountain passes used, continues:

… we used to always go to Buffalo two or three times a year and so there's, there's mountain passes getting through to go to Buffalo. And I think those are really important, those are important to me because that's, that's part of my aboriginal territory. Those are part of the lands that we were never, we were never consulted on…The trails are important because that's our network…You look at the archaeological record, you see sites here, sites there, sites here, but there's nothing really connecting them. They're all connected and it's those trails that connect them. (A01 27 June, 2012)

When the bison became too scarce, the Michel Prairie people, as well as other Upper Ktunaxa, relied more heavily on other resources; these included fish, elk, berries, and deer in the Crowsnest Pass, Elk Valley and elsewhere in the valleys west of the Rockies, including the area of Columbia Lakes, and south along the Elk and Kootenay Rivers to Tobacco Plains and beyond. Schaeffer’s notes point to a series of at least named Ktunaxa campsites along a trail system running from the White River, north of Whiteswan Lake, through qukin ʔamakʔis, south to the main village site at Michel Prairie and then east towards important camp and sacred areas in the area of Crowsnest Lake, Alberta. Beginning at Whiteswan Lake, Schaeffer’s notes indicate 8:

described by Chief Ambrose, may have been an important part of the Ktunaxa ability to safely travel difficult mountain passes in winter in order to hunt bison.

8 Bullets are quoted directly from Schaeffer’s notes – while the notes are not dated, they appear to be from Schaeffer’s last field trip to the area and were likely written in 1967 or shortly after. Additional work would be needed to identify exactly where Schaeffer refers to. Sparwood was formed in 1966 as part of the relocation of the communities of Michel and Natal. Schaeffer’s own spelling of Ktunaxa words is maintained.

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• A campsite of Michel Prairie Kutenai. The Kutenai camped here near the flint quarry used as material for tools. Name for White River was Kanukǂunmituk9 (White River). Across the divide east from White River to head of Bull River was named akaǂsimuq… The trail there runs east across another divide into Crossing Creek and east to Round Prairie…

• Kakawakamiǂu, “water running from the side into a main stream.” This was the main camp site of the Tunaxa10 located at a prairie south of the junction of Michel Creek and Elk River. The south side of the Prairie is now occupied by the Sparwood Elementary School. The site was occupied mostly in winter to escape the blizzards of the eastern foothills. Tobacco was planted here in spring and was cared for by a few people who lived here throughout the year. The Michel Prairie Kutenai were more numerous than any of the other Kutenai groups…

• An unnamed overnight camp site located on Antiste (“Andy”) Creek…which flows into Michel Creek…

• Kiǂwiaki akin∂we [second word unclear], “heart of the water.” A camp site at eastern end of Crowsnest Lake. The first buffalo stragglers (“mangy bulls”, Kakqaǂka) were encountered here but often passed over in favour of younger cows. The trail now ran on the north side of Crowsnest River until it crossed to south side east of Blairmore, and then re-crossed to the north side at Frank. Name may be derived from fact that river boils out of a cave in the solid rock. There are petroglyphs in the cave… (Schaeffer, date unknown, M1100, File 80).

Beyond Schaeffer (1935-37, 1964, 1966), Turney-High (1941), and the broader ethnographic record, Ktunaxa oral histories and ongoing land use indicate that Ktunaxa citizens have relied on, and to the extent possible, continue to rely on, the area of the Crowsnest Pass, including the Blairmore area, for a range of practices including the harvesting of fish, plant, wildlife, and mineral resources, trails and transportation routes, and associated camps, cultural areas, and practices.

9 Where a direct quote from notes recorded by Schaeffer, Ktunaxa words are written to approximate Schaeffer’s personal system of spelling. These are not standard Ktunaxa spellings approved by Ktunaxa language specialists.

10 Tunaxa is the term used in some early ethnographic literature to identify the plains Ktunaxa living east of the Rocky Mountains. Schaeffer uses it here to refer to the k̓ aqawakanmituknik̓ as a group that spent substantial time east of the Rockies with an economic focus on the bison hunt. While based primarily west of the Rockies, the territories regularly used by Ktunaxa-speaking communities extended well into Alberta to the present location of Lethbridge and beyond until the decimation of plains bison in the late 19th century. The weight of evidence suggests that Ktunaxa-speaking peoples were a dominant force along the eastern foothills until the late 18th and early 19th centuries when conflict with the ascendant Blackfoot confederacy combined with small pox and other diseases reduced the extent of ʔamakʔis Ktunaxa. It is possible that, prior to the 19th century, some Ktunaxa-speaking communities may have lived mainly or entirely east of the Rockies, but all credible ethnographic sources agree that, despite changes in extent, Ktunaxa speaking peoples have been based in the area of the Kootenay and Columbia Rivers for an extremely long period of time.

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Relationships with Neighboring First Nations in the Project Area Ktunaxa oral history and ethnographic evidence indicates the Ktunaxa were important within the dynamic social context of Crowsnest Pass, the eastern foothills, and the southern Alberta plains, prior to and after 1846. As illustrated in a group interview that included a respected Siksika elder, Blackfoot knowledge also recognized the Ktunaxa and Ktunaxa presence on the eastern slopes and plains. The Siksika elder indicated: I was born in 1929… And my grandmother always [used to] say, “there’s people out west. We call them Koot-u-nai. Koot-u-nai is scabby and nai is robe.” Yes this is how we call you, Koot-u-nai. “And so, they lived in the mountains, they’re good fighters, they’re horse people, better horse people than the plains. And sure we can beat them out in the open but once they get us in the mountains they knock the hell out of you.” [laughs]…These are the true stories I was told by my grandmother. We used to ask questions, we said, “What are they doing in the plains?” [She said] “Well they’re hunters too, good buffalo hunters.” That’s what we were told. (group interview, Sept 15 2017) The Ktunaxa Nation’s historical and ongoing relationships with eastern neighbours are formalized through Indigenous law and through both historic and modern treaties entered into with the Piikani, Nakoda, and others. These treaties served various purposes and are grounded in Indigenous legal traditions, rather than Canadian ones. They include peace agreements, agreements confirming access to certain lands for harvesting purposes, and the modern Buffalo Treaty, which deals with a commitment to restore and steward the return of bison within the animal’s historic range. Each agreement has implications for the Project area. • Appendix 1 is copy of an 1895 agreement involving the Ktunaxa, Stoney (Nakoda), and Kinbasket, permiting Stoney hunting on the western slopes of the Rocky Mountains, and affirming Ktunaxa rights to harvest on the eastern slopes. This was an oral treaty that was written down and witnessed by the Department of Indian Affairs. • Ktunaxa oral history describes another oral treaty that established a lasting peace between Ktunaxa from Tobacco Plains and the Piikani (or Peigan), which was entered into at Fort MacLeod and witnessed by the RCMP in the latter part of the 19th century. The purpose of the treaty was to resolve conflict and ally the nations in response to the changes occurring in the region as a result of confederation and Euro-Canadian settlement. Based on Ktunaxa histories, the peace agreement included exchange of ceremonial material—Ktunaxa received a ceremonial bundle, and in return the Piikani received an important ceremonial practice —and included recognition of shared use of eastern slopes. …we had protocols with our neighbouring nations to the east of us across the mountains and I understand there’s a treaty with the Piikani or the Sanⱡa [Blackfoot], between the Tobacco Plains people and the Piikani… and the exchange of the treaty was they gave us a bundle and we gave them the [an important ceremonial practice] … I was told they came to us and they said, because we were always

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traditional enemies I guess…but they came to us and said “things are changing, we can’t keep at war with each other because of the changes that are happening with confederation and settler society moving in, and it’s time for peace.” It’s my understanding they were seeking a treaty with us, and so there was a treaty [in] the latter part of the 1800’s. And I understand that from there, they would come here to our Blacktail Deer Dances around 1900… (S14 Mar 2 2018) … way back before [Ktunaxa and Piikani] started trading when they used to steal horses off one another and women I guess. But that was one of the trips they got together. They told them they had to go to Fort MacLeod. So they all got together, the Ktunaxa from that way and this way and they formed a group and they went over to Fort MacLeod, they had a big meeting there with the RCMP. And that’s when they were told to quit warring against one another and whatever. (T06 Mar 1 2018) • A third treaty, the Buffalo Treaty: A Treaty for Cooperation, Renewal, and Restoration, has recently been entered into by the KNC as an agreement with other plains Nations, including the Pikanii Nation, Blackfoot Confederacy, Blood Tribe, and other Indigenous governments, to share a commitment to restore plains bison. The Project is located in an area that is critical to bison restoration plans.

Ktunaxa Rights, Current Use, and Assessing Project Impacts While impacts to Ktunaxa use, rights and interests through land privatization, railway development, coal-related industrial development, and government policy have been widespread, Ktunaxa elders and land users continue to actively use and rely on the landscape of the Crowsnest Pass and surrounding mountains as integral to Ktunaxa identity, and to the practice of place-specific Aboriginal rights including teaching, cultural practice, harvesting, and transportation. Land use and occupancy interviews reinforce the data from the KNC Diet Study and indicate that while Ktunaxa use of the Elk Valley and Crowsnest Pass area is impaired by industrial footprints and concerns regarding contaminants, the area continues to be highly valued and used by Ktunaxa citizens. Figure 1 shows the Project in relation to reported site-specific Ktunaxa use values.

For the purposes of this technical memo, documented Ktunaxa rights, use and interests in the Project area were assessed in relation to the Project based on best practice standards described in Canadian Environmental Assessment Agency’s (CEAA) Technical Guidance for Assessing the Current Use of Lands and Resources for Traditional Purposes (CEAA 2015). CEAA guidance clarifies that current use includes use of lands and resources including connections related to ceremonies, customs, governance or stories, as well as uses that may have ceased due to external factors, such as extirpation of bison, but can reasonably be expected to resume once

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conditions change.11 Numerous Ktunaxa use values are documented in the Project area along the Crowsnest Pass and eastern foothills, including cultural-spiritual values (e.g., sacred and ceremonial areas, teaching areas, place names), environmental features (e.g. specific highly valued habitat), habitation sites (e.g., camps, cabins), subsistence values (e.g., harvesting and kill sites), and transportation values (e.g., trails, passes, navigation sites) (see Figure 1). Key values are summarized below, and a preliminary assessment of potential Project impacts on related Ktunaxa rights, use and interests is provided. Cultural-spiritual values The Project area and adjacent areas, including Crowsnest Mountain, Crowsnest Pass, Crowsnest Lake, and the area of Frank, represent a deeply important cultural landscape for Ktunaxa citizens. The cultural landscape is associated with particular oral histories relating to bison hunting, relationships with Piikani and other groups, ancestral Ktunaxa villages east of the Rockies, Ktunaxa creation stories related to particular landforms and to the Frank slide, and areas connected to specific ceremonial practices, including an important Ktunaxa ceremonial location just east of Crowsnest Mountain. Documented values include Ktunaxa place names tied to key stories and landscape features, and teaching areas used to pass on Ktunaxa knowledge and history, including within the Project LSA and footprint in the area of Blairmore and Frank. For Ktunaxa citizens, qukin ɁakitǂaɁis (Raven’s House or Crowsnest Mountain, spelled in Schaeffer as Kokinakitteis), and the headwaters area of Crowsnest River around KuǂwiaɁki (Crowsnest Lake), are considered especially sensitive, sacred, and tied to Ktunaxa oral history. qukin ɁakitǂaɁis is considered the home of the creation being Raven, and is associated with oral histories of Ktunaxa chiefs from the area, as well as with specific ceremonial practices, and as a literal lookout to watch the movements of Blackfoot groups and buffalo in the Crowsnest Pass and the surrounding valleys. A Ktunaxa elder from Tobacco Plains explained that the original translation resulting in the naming of the area as ‘Crowsnest’ was actually incorrect, and that the Ktunaxa place name should have been translated as “Raven’s House”:

11 “In the context of an EA, “current use” refers to how the use of lands and resources may be affected throughout the proposed project’s lifecycle (pre-construction, construction, operation, decommissioning and abandonment)… “use” may refer to activities involving the harvest of resources, such as hunting, trapping, fishing, gathering of medicinal plants, berry picking, and travelling to engage in these or other kinds of activities. In addition, use may also refer to particular connections and uses of the lands and resources related to ceremonies, customs, cultural practices, traditional governance, trade or stories... Uses that may have ceased due to external factors should also be considered if they can reasonably be expected to resume once conditions change…The use of lands and resources by Aboriginal peoples may have tangible values (e.g., wildlife species or traditional plants) and/or intangible values (e.g., quiet enjoyment of the landscape or sites used for teachings). Intangible values are often linked with spiritual, artistic, aesthetic and educational elements that are often associated with the identity of Aboriginal groups… Traditional purposes typically relates to activities that are integral to a community’s way of life and culture, and have continuity with historic practices, customs and traditions of the community.” Technical Guidance for Assessing the Current Use of Lands and Resources for Traditional Purposes (CEAA 2015: 4-6).

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Figure 1. Site-Specific Ktunaxa Values in Relation to the Project

Grassy Mountain Coal Project Footprint

Chinook Provincial Recreation Area

Highway 3 Blairmore

British Alberta Columbia Castle Wildland Provincial Park

Legend Map produced by the Firelight Group on Monday, January 12, 2019.

Base map data originates from Riversdale Resources, Cultural Archival Trail Border the National Topographic System, and ESRI. Environmental Archival Trail Buffer Highway Map projected to UTM, Zone 10, NAD 83. Habitation Archival Point Road This map does not capture the complexity of the Ktunaxa Subsistence Railway Nation's relationship to their traditional lands or the 1:200,000 extent of the practice of treaty and aboriginal rights. This Transportation Local Study Area (5km) Watercourse map is a living document and is intended to be amended Project Footprint (250m) Waterbody and refined over time. The data used to produce this map originate from multiple sources. This map is property of Mine Permit Boundary Parks & Protected Areas 0 1 2 3 4 5 the Ktunaxa Nation and may only be reproduced Project Components Towns and Cities with written permission. Kilometres

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That’s where his house [is]… Raven’s house, yeah… You know they, whoever translated that, that was qukin, it wasn’t crow. It was Raven… And he said Crow, so we’re stuck with Crowsnest, crows. (T06 Mar 1 2018)12 As noted above, the Ktunaxa translation for KuǂwiaɁki (Crowsnest Lake) is “Heart of the Water” (Schaeffer fieldnotes: 1932-33, 1966?). The location is associated with an important ceremonial area at the pass associated with water, and with specific cultural features in very close proximity to and currently impacted by the existing CP Rail line and the Crowsnest Highway. Fromhold's (2010) Indian Place Names of the West notes that the Stoney Nakoda place name for Crowsnest Lake, given as kotenehew chango imne, means “Kutenai Trail Lake”, and “Kutenai Trail” refers to Crowsnest Pass. For Ktunaxa, KuǂwiaɁki is an extremely important and at-risk sacred and ceremonial place. The town of Frank and Turtle Mountain, just southeast of the Project footprint, are also tied to important oral histories that relate to the disastrous consequences of mining and greed in ʔamakʔis Ktunaxa, and the powerful and still active role that particular beings from Ktunaxa creation continue to play on the landscape. Anticipated Project impacts on cultural-spiritual values: • Disturbance of Important Ktunaxa Cultural-spiritual Sites: During a site visit to the Project site at Grassy Mountain, Ktunaxa knowledge holders and KNC staff identified the close proximity of the proposed mine to qukin ɁakitǂaɁis (Crowsnest Mountain). The potential for negative changes to the viewscape and sensory environment (e.g., noise, smell, air quality) associated with direct (mine construction and operations) and incidental (e.g. rail traffic) Project activities are a primary concern for Ktunaxa current and future use, and stewardship of the values associated with of qukin ɁakitǂaɁis, KuǂwiaɁki, and nearby areas associated with place-based cultural-spiritual practices. KuǂwiaɁki is especially vulnerable to increased rail traffic related to the Project, but increased frequency of rail disturbance is likely to result in impacts to multiple sensitive areas within Ktunaxa territory. Due to deficiencies in the Proponent’s assessment, additional assessment of increased sensory disturbance (viewscape, noise, sense of place) in the area of Crowsnest Pass, including increased frequency of rail related disruption as a result of the Project, is likely needed. Increased use of the rail route will impact access and sense of place for Ktunaxa citizens’ at this important site. Maintaining a sensory environment around qukin ɁakitǂaɁis and KuǂwiaɁki that supports and sustains Ktunaxa citizens’ current and future use and connection to these places is of high important. • Potential for Large Scale Slope Failure: Given Ktunaxa oral histories and proximity of the Project to the Frank slide area, ground stability is a major concern for KNC due to historical precedent. It is unclear from the proponent’s assessment if unique risk factors based on the area’s history were included in slope stability analysis.

12 The Ktunaxa translation of “Raven’s House” also appears in Schaeffer’s notes labelled “10/ 22/65 Ambrose Gravelle”, available at Glenbow Archives, M-1100-160.

15 Technical Memorandum re: KNC Rights, Use and Interests Study in relation to Grassy Mountain Coal Project

Environmental features The Project is located in the eastern foothills of the Rocky Mountains in an area valued by Ktunaxa citizens for clean freshwater sources, and wildlife habitat for culturally- important species such as bison, grizzly bear, mountain goat, sheep, elk, moose and wolverine which are critical to Ktunaxa harvesting, and Ktunaxa stewardship. Anticipated Project impacts on Grizzly Bear, Bison and other Animals and Habitats ʔa·kxamis̓ qapi̓ qapsin is a Ktunaxa concept meaning the root of all things and the relationship between all things including land, water, animals, Indigenous peoples and the air that we breathe. It is a living balance, is linked to Ktunaxa language and culture, and connects all things with the creator and with one another. Based on Ktunaxa use and knowledge of the Project area, the Project area and Crowsnest Pass contain a multitude of ecological values tied to cultural use and stewardship of the landscape by Ktunaxa including rutting areas for bighorn sheep, hunting areas for moose and elk, and values related to other plant and animal species of critical importance including whitebark pine, grizzly bear, mountain goat, and bison.13 • Grizzly Bear: The Ktunaxa relationship with grizzly bear in mountain areas is especially fundamental to Ktunaxa stewardship, as described in the Qat’muk Declaration (Ktunaxa Nation Council 2010b). The current application does not properly recognize likely Project effects on grizzly bear. • Bison: It is unclear from the proponent’s assessment if any consideration was given to understanding Project impacts on currently vacant bison habitat, including movement corridors, that are likely to become critical to bison, and Ktunaxa harvest of bison, once sufficient populations have been restored to the area. Ktunaxa citizens consider the Project area as a place where bison were once abundant and harvested as a staple food by Ktunaxa ancestors up until the animal’s industrial extirpation in the late 19th century under colonial pressure. Plains bison are critically important, both culturally and ecologically, to past and future practice of KNC rights in the Project area and eastern slopes of the Rockies. While bison are currently extirpated and habitat in the area of the Project is currently vacant, the return of plains bison and Ktunaxa harvest of bison in the Project area is planned and reasonably foreseeable. As a signatory to the Buffalo Treaty, the Ktunaxa Nation is committed to restoring bison to their former range. The Project is located in an area that is critically important for bison habitat suitability and capability, as well as the viability of future KNC and other indigenous harvest of bison in the Project area. Initial reintroduction of plains bison is occurring in National Park areas both north and south of the Project. As a signatory to the Buffalo Treaty, the KNC wishes to ensure the Project provides a reasonable assessment of impacts on bison habitat suitability and capability, that it provides reliable habitat offsetting supportive of bison for the

13 The Proponent’s project description (Millennium EMS Solutions Ltd. 2015) shows the occurrence of whitebark pine (at least 15 detections shown in figure 5.1-16) within the mine permit boundary and in the direct vicinity.

16 Technical Memorandum re: KNC Rights, Use and Interests Study in relation to Grassy Mountain Coal Project

duration of Project impacts, and that end land use goals are clearly supportive of long term future habitat restoration for bison and Ktunaxa harvest in the area. KNC is concerned that the assessment currently fails to take into consideration potential effects (positive or negative) of the proposed Project on bison habitat and bison recovery, particularly in light of the proximity of reintroduced bison in the National Parks, the potential for range expansion into the Project area, and plans under the modern Buffalo Treaty, to which KNC is a signatory and accountable to partner nations. At minimum, the assessment should include Ktunaxa and other Indigenous knowledge expertise to consider: how bison range is likely to expand from national parks and other restoration areas; the potential of the Project area to support bison habitat and habitat connectivity; and opportunities available to offset Project related losses through targeted habitat recovery or protection. The proponent should also be required to identify a clear and reliable plan for inclusion of bison, Ktunaxa knowledge of bison, and Ktunaxa bison harvest within end land use goals for reclamation and restoration. Project impacts to the success of bison restoration, and to grizzly bear and other species, are anticipated to include sensory disturbance, habitat loss and degradation (including contamination) and connectivity impacts including fragmentation within an important movement corridor. Anticipated Project Impacts on Water: Maintaining healthy water quality and avoiding mining or rail-related contamination (e.g., sulphate and selenium) is a primary Ktunaxa concern in relation to the Project and the Crowsnest River watershed. Mobilization of selenium into waterways from nearby surface coal mining is a known issue. High levels of selenium in the Elk River from adjacent coal mining (McDonald and Strosher 1998) have resulted in serious concerns for the health of westslope cutthroat trout and other species. Past Ktunaxa studies have shown that contamination and health concerns associated with upstream mining often result in a direct impact on Ktunaxa citizen’s confidence in wild foods, and on Ktunaxa ability to confidently rely on preferred places and species. Increased impacts on water in the area are likely to result in impacts on Ktunaxa use, including use of camp and habitation areas adjacent to the Crowsnest River and its tributaries. Potential impacts on water quality in the vicinity of coal transport and rail routes are also a concern. Anticipated Project impacts include mobilization of mining contaminants into adjacent waterways by airborne deposition, runoff from the mine site, and releases of treated wastewater into the environment. Based on the location of the Project, Blairmore Creek and Gold Creek drainages appear likely to receive impacts from upslope development of the Project. Both waterways flow into Crowsnest River. Anticipated Project Impacts on Habitation Values Ktunaxa habitation values in the Project area and Crowsnest Pass include a recent hunting camp west of Crowsnest Lake, as well as known historic camp locations at Crowsnest Lake, along the Crowsnest River, and east of Crowsnest Mountain. Based on known patterns of use elsewhere in ʔamakʔis Ktunaxa, Ktunaxa camps are particularly reliant on access and trail networks and water resources, with areas adjoining creeks, and especially confluence areas, being of high importance. Flanagan

17 Technical Memorandum re: KNC Rights, Use and Interests Study in relation to Grassy Mountain Coal Project

(2001: 36-7) cites Ktunaxa oral history related to camping at the lakes in Crowsnest Pass, as well as archaeological evidence of camps in the pass area: A Kutenai woman related to her granddaughter how buffalo once stampeded through a winter camp, knocked down the lodges, scattered the campers, and how some of the rampaging buffalo were killed on the ice of the little lake as they helplessly skidded and sprawled… A 1977 archaeological dig revealed evidences of use including tipi rings, hearths, and arrow points in the pass area. (p.36 and 37) In the context of the proposed Project, the quality of water, and the presence of industrial disturbance are major factors influencing Ktunaxa use of camping areas. Ktunaxa plans for restoration of bison, and ultimately bison harvest, within the foreseeable future will also rely on the viability of camp areas that support future use. Subsistence use The KNC’s existing use and occupancy information indicates that Ktunaxa citizens continue to exercise harvesting rights in the Crowsnest Pass and surrounding areas. The area west of the Project contains important fishing and hunting values, including harvest of cutthroat and rainbow trout, moose, and whitetail deer. Additional work is likely to confirm that similar uses extend easts into the Project area. The Project footprint and surrounding area is known habitat for important traditional food plants and animals. Historic use of Crowsnest Pass by Ktunaxa for bison hunting, and its ongoing importance as an area for bison restoration, is confirmed by Ktunaxa knowledge holders, ethnographic evidence, and the Buffalo Treaty. It is reasonably foreseeable that Ktunaxa and other indigenous harvest of bison, and related cultural practices (e.g. transmission of knowledge, resumed use of hunting camps), in the Project area will resume once conditions change as planned under the Bison treaty. Anticipated Project impacts: • Reduction of habitat for food animals and plants that support and sustain Ktunaxa harvesting rights. • Loss of confidence in the quality of traditional foods due to contamination concerns associated with the Project. • Increased sensory disturbance in key harvesting areas associated with activities and increased traffic at the Project site, as well as along the rail route through ʔamakʔis Ktunaxa, resulting in sense of place impacts, and avoidance of the areas by animals targeted by Ktunaxa harvesters. Transportation values Based on review of existing KNC use and occupancy information, and archival and ethnohistorical documents, several trails associated with Ktunaxa movement through the Rocky Mountains to and from the plains directly intersect the Project area, and areas to the north and south. These trails continue to be important values for the transmission of knowledge and connection to Ktunaxa ancestors and oral history in

18 Technical Memorandum re: KNC Rights, Use and Interests Study in relation to Grassy Mountain Coal Project

Crowsnest Pass. The Project will interrupt use of road and trail based access through the Project area. Summary of Anticipate Project Impacts on Ktunaxa Use, Rights and Interests within the LSA Table 1: Anticipated Project Impacts on Ktunaxa Use, Rights and Interests

Cultural- Environmental Trails and Habitation Subsistence Spiritual Features Transportation Use

Construction Yes Yes Yes Yes Yes

Operation Yes Yes Yes Yes Yes

Closure and Yes Yes Yes Yes Yes Reclamation

Project Associated Increases in Rail Traffic in ʔamakʔis Ktunaxa Anticipated impacts associated with increased use of the CP railway for the transport of coal, an activity which the Proponent describes as “incidental” in their project description (Millenium EMS Solutions Ltd. 2015: 18), is a major concern for KNC and Ktunaxa citizens. Numerous Ktunaxa values occur along the CP Railway’s route westward through ʔamakʔis Ktunaxa, and beyond the Crowsnest Pass, including areas and values critically important to the practice of rights, subsistence and cultural practices. These values are already impacted, and additional use of the railway for coal transport will further reduce access, increase wildlife collisions and mortality, and reduce local abundance of food animals, and increase the risk of rail incident (e.g., derailment, spills). KNC’s understanding based on participation in regulatory processes involving CPR is that important pieces of CPR infrastructure, such as the Kootenay Landing Bridge near yaqan nuʔkiy, are already at the end of their life span. This raises important questions that are not addressed in the Proponent’s assessment regarding the impact of the additional load on rail infrastructure both in the vicinity of the Project, as well as along the rail route to the coast through ʔamakʔis Ktunaxa.

Cumulative Effects Based on past work in the Elk Valley, KNC has determined that cumulative effects on Ktunaxa rights and interests stemming from impacts to lands and waters within the Elk Valley drainage have already exceeded a threshold of significance, and that without substantial mitigations and other measures, adverse impacts from other projects in the region will act cumulatively to increase the magnitude and duration of significant effects. While assessment is preliminary, existing impacts on Ktunaxa practice of rights in the Crowsnest Pass area have also been significant. Based on available Ktunaxa information, Project effects on Ktunaxa use, rights, and interests in the Project area are

19 Technical Memorandum re: KNC Rights, Use and Interests Study in relation to Grassy Mountain Coal Project

also adverse and are likely to extend the duration, magnitude and extent of existing significant impacts in the region, including impacts on cultural landscapes, water, bison, and other resources that are fundamental to Ktunaxa practice in the area.

Conclusion The Proponent’s current assessment that the Project would result in ‘No’ impact to Ktunaxa use and values (as indicated in table CEAA 2-10 located in Appendix A-2-45, Cumulative Effects Assessment to address CEA Agency IR#2, Feb. 27, 2018) is inaccurate based on the information documented in this technical report. The Proponent’s assessment provides no criteria for characterization of Project effects on Indigenous VCs, including impacts on Aboriginal or Treaty rights, and impacts on Indigenous use of lands and resources. It is unclear how the Proponent concluded that the Project would result in ‘No’ impact to Ktunaxa use and values, however, their determination appears to be based on the exclusion of evidence based on a narrow and impoverished definition of “current use” of lands and resources and a limited understanding of good practice in assessing impacts on Aboriginal and Treaty rights. The proposed Project is in an area of ʔamakʔis Ktunaxa with a deep history of Ktunaxa use and occupancy, and ongoing cultural-spiritual importance. While this memorandum is preliminary, based on available information and absent substantial precautionary mitigations, the Project is considered likely to result in significant adverse effects, including impacts on Ktunaxa traditional use and access to lands and resources, sensory experience and cultural connection to sacred areas nearby, impacts to ecological values including fisheries in the Crowsnest River and wildlife, and Ktunaxa stewardship commitments related to bison (ie. Buffalo Treaty) and ʔa·kxamis̓ qapi̓ qapsin (all living things).

20 Technical Memorandum re: KNC Rights, Use and Interests Study in relation to Grassy Mountain Coal Project

References

Boas, F. and A.F. Chamberlain. 1918. Kutenai Tales. Smithsonian Institution Bulletin, Bureau of American Ethnology, Washington, DC. 387 pp. Canadian Environmental Assessment Agency. 2015. Technical Guidance for Assessing the Current Use of Lands and Resources for Traditional Purposes under the Canadian Environmental Assessment Act, 2012. Draft for public comment. https://www.canada.ca/content/dam/ceaa-acee/documents/policy- guidance/assessing-current-use-lands-resources-traditional- purposes/current_use_final_draft-eng.pdf. Chamberlain, A.F. 1892. Report of the Kootenay Indians of South Eastern British Columbia. British Association for the Advancement of Science, London. Curtis, E.S. 1911. The Kutenai. In Frederick W. Hodge (ed.), North American Indians: Being a Series of Volumes Picturing and Describing the Indians of the United States and Alaska, vol. 7. Plimpton Press. Norwood, MA (reprinted Johnson Reprint. 1970) pp. 117–155 and 167–179. DeRoy, Steven. 2012. Using Geospatial and Network Analysis to Assess Accessibility to Core Homeland Areas of the Athabasca Chipewyan First Nation (ACFN) in the Context of Increasing Oil Sands Development. Dissertation for Masters of Geographic Information Science, University College London. Flanagan, Darris. 2001. Indian Trails of the Northern Rockies. Stevensville, Montana: Stoneydale Press Publishing Company. Fromhold, Joachim. 2010. 2001 Indian Place Names of the West - Part 1 -. Available at https://books.google.ca/books?id=ahvVAgAAQBAJ&printsec=frontcover&sour ce=gbs_ge_summary_r&cad=0#v=onepage&q&f=false Ktunaxa Nation Council. 2010a. BCTC Columbia Valley Transmission CPCN Exhibit C7- 4: Written Evidence of the Ktunaxa Nation Council. The KNC’s written submission for the application by BC Transmission Corporation for a certificate of public convenience and necessity for the Columbia Valley Transmission Project. https://www.bcuc.com/Documents/Proceedings/2010/DOC_25494_C7- 4_KNC_Written-Evidence.pdf.

Ktunaxa Nation Council. 2010b. Qat’muk Declaration. http://www.ktunaxa.org/who-we- are/qatmuk-declaration/. Ktunaxa Nation Council. 2015. “Ktunaxa Nation Background.” Section C1.5 in Ktunaxa Nation Rights and Interests for the Teck Baldy Ridge Extension Project Environmental Assessment Certificate Application. Report prepared by the Firelight Group Research Cooperative with the Ktunaxa Lands and Resources and Teck Coal Limited. Available at https://projects.eao.gov.bc.ca/p/baldy- ridge-extension/docs?folder=27

21 Technical Memorandum re: KNC Rights, Use and Interests Study in relation to Grassy Mountain Coal Project

McDonald, Leslie E., and Mark M. Strosher. 1998. Selenium Mobilization from Surface Coal Mining in the Elk River Basin, British Columbia: A Survey of Water, Sediment and Biota. Cranbrook, BC: Pollution Prevention, Ministry of Environment, Lands and Parks. http://a100.gov.bc.ca/appsdata/acat/documents/r12589/1seleniumelk_120534 7116802_8e248a68ce5980fb2667bdb4930a251fb186e4d5b0b.pdf. Millenium EMS Solutions Ltd. 2015. Grassy Mountain Coal Project Description. Report prepared on behalf of Riversdale Resources Limited for the Canadian Environmental Assessment Agency. File #14-00201-01. Riversdale Resources. 2016. Grassy Mountain Coal Project - Updated Environmental Impact Assessment. EA report submitted to CEAA, August 12, 2016. Schaeffer, C.B. 1935-1937 [Ethnographic fieldnotes from Kutenai research]. Unpublished, on file with the Ktunaxa Nation Council Archives. Schaeffer, C.B. 1966. Bear Ceremonialism of the Kutenai Indian. Studies in Plains Anthropology and History No. 4. Browing, Mont. U.S. Dept of Interior, Indian Arts and Crafts Board. Schaeffer, C. E. 1982. Plains Kutenai: An Ethnological Evaluation. Alberta History 30 (4): 1–9. Teit, James A. 1930a. Traditions and Information Regarding the Tona’xa. American Anthropologist 32 (4): 625–32. https://doi.org/10.1525/aa.1930.32.4.02a00040. Teit, J. A. 1930b. The Salishan Tribes of the Western Plateaus. In Franz Boas (ed.), Forty-fifth Annual Report of the Bureau of American Ethnology. United States Government Printing Office, Washington, D.C. p. 23-396. Turney-High, H.H. 1941. Ethnography of the Kutenai. Memoirs of the American Anthropological Association No. 56. American Anthropological Association. Menasha, WI. 202 pp. Tobias, Terry N. 2009. Living Proof: The Essential Data-Collection Guide for Indigenous Use-And-Occupancy Map Surveys. Ecotrust Canada. Wissler, Clark. 1910. Material Culture of the Blackfoot Indians. Vol. 5. The Trustees.

22 Technical Memorandum re: KNC Rights, Use and Interests Study in relation to Grassy Mountain Coal Project

Appendix 1

1895 Hunting Agreement Between the Ktunaxa, Kinbasket, and Stoney The archival images below show the hunting agreement between the Ktunaxa, the Kinbasket and the Stonies, signed September 27, 1895:

18 Technical Memorandum re: KNC Rights, Use and Interests Study in relation to Grassy Mountain Coal Project

19 Appendix 2: Ktunaxa Nation Council Response to Addendum 12

Mitigations/Commitments

Mitigation Sufficiency Additional information Reference Air Quality - p80 Mitigation and commitments lack detail Given that blasting results in large relative increases in combustion emissions, and wording is vague and open-ended and commitment 2 should state that “Benga will commit to investigate and use does not permit the effectiveness of alternative ANFO formulations that reduce NO2 emissions during blasting.” mitigations to be measured and verified, hence the wording needs to be more Commitment 11 needs to state how many hectares of estimated progressive detailed. Some commitments do nothing reclamation and revegetation will be committed to (estimated by year of the more than mention “opportunities will be project), so that this can be measured and verified by ongoing monitoring; looked into” which means nothing without please add more detail. committing to all feasible options, so clauses need to be added. There is no real Change commitment 16 to state that “Speeds on mine roads will be limited to commitment to ongoing monitoring of 50 km/hr by installing signage, speed monitoring radar display equipment, compliance and effectiveness and adaptive implementing routine speed monitoring and enforcement to achieve management to improve effectiveness. compliance throughout the project duration”.

Add a commitment stating “Benga will commit to ongoing periodic monitoring of COPCs (including NO2, SO2, CO, PM2.5, PM10, TSP and fugitive dust emissions) throughout the life of the project to evaluate the compliance/effectiveness of air quality mitigations. Monitoring will occur at frequencies (to be specified in the commitment) during both construction and operation phases. These results will be reported on monthly and will be used to adaptively manage the frequency/duration of existing mitigation measures applied, as well as the need for additional measures to be implemented to maintain air quality at acceptable levels throughout the left of the project.”

For pathway 5 (increased greenhouse gas emissions), commitment 2 should state “Benga will commit to increasing the fraction of renewable electricity use on site by investigating, documenting and implementing all feasible options to do so.”

Noise – p82 Commitments are reactive to complaints Add a commitment stating “Benga will commit to ongoing periodic monitoring rather than pro-active to ensure of noise levels during the life of the project to evaluate the compliance with compliance with model predictions and modelling predictions (5 dBA maximum threshold) and effectiveness of noise thresholds (which suggest noise will be at level mitigations. Noise monitoring will occur at frequencies (to be specified in or over allowable thresholds). There is no the commitment) during both construction and operation phases. These results commitment to ongoing monitoring of will be regularly reported and will be used to adaptively manage the frequency compliance with allowable levels and and duration of existing mitigation measures applied, as well as the need for adaptive management to improve additional measures to be implemented to maintain noise levels below 5.0 dBA compliance if over levels. throughout the left of the project.”

Hydrology – p85 Yes and No. The mitigation measures are See below present but lack the specifics on engagement and input. Surface water The mitigation measures are present and The Proponent must retain one or more Qualified Professionals to develop a quality – p86 appropriate but lack specific details (e.g., Construction Environmental Management Plan (including sediment and erosion engagement and input, timing, feasibility, control). etc). Could be addressed through the development of a series of management The Proponent must retain one or more Qualified Professionals to develop a plans developed in consultation with KNC. Water Management Plan.

The Proponent must retain one or more Qualified Professionals to develop a Reclamation and Closure Plan.

Proponent to clearly identify the adaptive management components with respect to water quality in an Adaptive Management Plan. The Adaptive Management Plan should include: a) Triggers, including early-warning triggers and management triggers (i.e., triggers that if exceeded would result in significant adverse effects), for management action; and, b) Description of the management actions (a response framework; e.g., best achievable technology scan for sulphate, best achievable technology scan for calcite, mitigation actions, contingency plans) that will be taken if an early warning trigger is exceeded.

The Proponent must retain one or more Qualified Professionals to develop a Calcite Management Plan.

The Proponent must retain one or more Qualified Professionals to develop a hardness-based sulphate SSWQO.

The Proponent must retain one or more Qualified Professionals to develop a Nitrogen Management Plan.

Also see below for details on monitoring for evaluating aquatic effects. Aquatic Ecology – Yes and No. The mitigation measures are See below p90 present but lack the specifics on engagement and input. Soil and Terrain – Although the proponent commits to Add the following overarching commitment: “The Proponent must retain one or p94 salvaging soil to improve the soil profile and more Qualified Professionals to develop a Soil Management and Monitoring to progressive reclamation, there is not Plan (including soil salvage, stockpiling, soil erosion control, soil reclamation enough detail on how, what, when this will management and monitoring). be done to actually achieve expectations, or how it will be monitored and adaptively To make soil salvage commitments clearer and subject to measurement and managed to actually improve outcomes. verification, change commitment 1 to “All surface soil will be salvaged using Expected trajectories for reclamation best management practices. An estimated X-Y (range) percent of subsoil and X- progress need to be stated by ecosystem Y (range) percent of suitable coversoil will also be salvaged using BMPs.” and commitments for progressive reclamation need to be clearer and more It states that appropriate reclamation “will allow for” increased reclaimed soil detailed, so progress is measurable and profile diversity over time. What is the assumed time frame for complete soil verifiable, and so that if reclamation is not profile recovery (in terms of how significance was rated for this VC), assuming successful, it is clear where the failures lie recovery would occur? Such recovery is assumed to eventually occur but is not and to address problems and/or verified on such projects. Data verifying time to recovery (if ever) is needed, via compensate. ongoing monitoring of the soil profile and constituents, to inform the reclamation progress, options and potential for eventual success.

It is important that a commitment for monitoring of soil profiles and diversity (i.e., soil micro-organisms, mycorrhizal fungi, nutrients, etc.) is included to ensure the necessary building blocks for reclamation are building back up, and that the assumed time frame for recovery is met. If not, then additional mitigation (addition of nutrients, organics, mycorrhizae, micro-organisms, etc.) will be needed to improve potential for re-vegetation, especially under climate change (which predicts increasing revegetation failure even in forestry settings, as growing season temperatures increase, prolonged summer drought intensifies, insects, diseases, wildfires and invasives increase, and extreme storms, flooding, precipitation, erosion and other weather events intensify and become more frequent). If soil recovery does not occur on the trajectory expected to allow for effective revegetation in a timely manner, then compensation in the form of offsetting will be required. Therefore, please add the following commitment: “In association with its progressive reclamation commitment, Benga commits to ongoing monitoring of the soil profile, soil diversity and constituents (i.e., soil micro-and macro-organisms, mycorrhizal fungi, nutrients, etc.) to ensure soil recovery and to inform reclamation options, potential for revegetation success, and need for further mitigations. Monitoring results will be regularly reported out and will be used to adaptively manage soil recovery and identify the need for further mitigations or compensation, where soil is not recovering during the expected timeframe, as predicted.”

Under point 5 (terrain), add the following overarching commitment: “The Proponent must retain one or more Qualified Professionals to develop a Conservation, Reclamation Management and Monitoring Plan (which includes detailed identification and mapping of end land use objectives, a progressive reclamation plan with a schedule for annual number of hectares reclaimed, as well as annual monitoring of reclamation progress).

Under point 6 (end land use capability), add “In association with its progressive reclamation commitment, Benga commits to ongoing monitoring and reporting out on reclamation progress and success, relative to the timeframes identified in the Conservation, Reclamation Management and Monitoring Plan. If the trajectory of reclamation progress and the level of re-vegetation success towards achieving end land use goals is not achieved within the specified timeframes in the plan, Benga commits to like for like terrestrial offsetting to compensate for any and all lands that have not been successfully reclaimed.”

Vegetation and The mitigations and commitments are Under pathway 1 (terrestrial and wetland vegetation), change commitment 1 to Wetlands – p96 inadequate in detail and scope to provide “Benga will implement a Conservation, Reclamation Management and confidence that revegetation objectives will Monitoring Plan (CRMMP) to re-establish target vegetation with equivalent be met and residual impacts will be capability and suitability for wildlife and biodiversity through progressive mitigated, given climate change and reclamation. This plan will describe the abundance, condition and mapped predicted decreases in re-vegetation distributions of existing pre-project plant communities. It will identify annual success due to more extreme growing schedules for progressive revegetation, as well as expected trajectories and season temperatures and drought. timeframes for regeneration and full vegetation recovery. The plan will also Mitigations and commitments are also too specify the methods used to monitor revegetation progress, monitoring vague to measure and verify that they are frequency and duration, periodic reporting commitments for monitoring being satisfied. More detail is needed in a results, and how adaptive management will be conducted based on monitoring formal plan, which includes commitments findings. Benga commits to ongoing periodic monitoring and reporting out on regarding expectations and timelines for revegetation progress and if the trajectory of reclamation progress and the progressive reclamation, coupled with level of re-vegetation success towards achieving full recovery is not achieved monitoring approaches and schedules, and within the specified timeframes in the plan, Benga commits to like for like an adaptive management framework to terrestrial offsetting to compensate for any and all vegetation communities that evaluate recovery (based on identified have not been successfully reclaimed within a reasonable time-frame.” milestones). The need for compensation must also be addressed in commitments, Under pathway 1, change commitment 2 to “The CRMMP will reclaim where expectations regarding plant vegetation communities that are locally and regionally limited or rare in community and species recovery distribution where conditions allow. Where restoration of comparable trajectories are not being met. communities is not possible (based on existing conditions) or unlikely (due to a lack of success based on existing conditions or based on the results of periodic monitoring and reporting with adaptive management), Benga commits to terrestrial offsetting to compensate for loss of these communities, with appropriate offset ratios to be determined in a Terrestrial Offsetting Plan, to be prepared by one or more independent Qualified Professionals retained by the proponent.”

Under pathway 2 (rare plants), change commitment 1 to “The CRMMP will be developed to re-establish the diverse native vegetation (closed conifer forests, moderate mixed forests, natural upland herbaceous grasslands, and treed wetlands), with emphasis on rare plants and plant communities present pre-project, to achieve equivalent pre-disturbance capability and suitability for wildlife. Where restoration of comparable rare plants and rare plant communities is not possible (based on existing conditions) or unlikely (due to a lack of success based on results of periodic monitoring and reporting with adaptive management), Benga commits to terrestrial offsetting to compensate for loss of these species and communities, with appropriate offset ratios to be determined in a Terrestrial Offsetting Plan, to be prepared by one or more independent Qualified Professionals retained by the proponent.”

Under pathway 2 (rare plants), change commitment 3 to “Benga will avoid populations of whitebark pine as a criteria for ongoing mine footprint planning”

Under pathway 2 (rare plants), add the following commitment: “Pre- disturbance surveys (rare plant sweeps) will be conducted in the development area prior to any construction to determine the occurrence of any plant SAR. Any SAR will be avoided until appropriate mitigation or compensation measures has been developed. Compensation measures should be included in the Terrestrial Offsetting Plan, to be prepared by one or more independent Qualified Professionals retained by the proponent.

Under pathway 3 (rangeland resources), add a commitment 2 “The CRMMP will be developed to re-establish native montane grasslands and sub-alpine grasslands impacted by the project, to achieve equivalent pre-disturbance capability and suitability for wildlife. Where restoration of comparable native montane grasslands and sub-alpine grasslands is not possible (based on existing conditions) or unlikely (due to a lack of success based on results of periodic monitoring and reporting with adaptive management), Benga commits to terrestrial offsetting to compensate for loss of these communities, with appropriate offset ratios to be determined in a Terrestrial Offsetting Plan, to be prepared by one or more independent Qualified Professionals retained by the proponent.”

Under pathway 4 (forestry resources), add a commitment 3 “The CRMMP will be developed to re-establish merchantable forested plant communities impacted by the project, to achieve equivalent pre-disturbance capability and suitability for wildlife. Where restoration of comparable merchantable forested plant communities is not possible (based on existing conditions) or unlikely (due to a lack of success based on results of periodic monitoring and reporting with adaptive management), Benga commits to terrestrial offsetting to compensate for loss of these merchantable forest communities, with appropriate offset ratios to be determined in a Terrestrial Offsetting Plan, to be prepared by one or more independent Qualified Professionals retained by the proponent.”

Under pathway 5 (old growth forests), add a commitment 3 “The CRMMP will be developed to re-establish old growth forests impacted by the project, to achieve equivalent pre-disturbance capability and suitability for wildlife. Where restoration of comparable old growth forests is not possible (based on existing conditions) or unlikely (due to a lack of success along successional trajectories predicted based on results of periodic monitoring and reporting with adaptive management), Benga commits to terrestrial offsetting to compensate for loss of these old growth forest communities, with appropriate offset ratios to be determined in a Terrestrial Offsetting Plan, to be prepared by one or more independent Qualified Professionals retained by the proponent.”

Under pathway 6 (traditionally used plants), add a commitment 3 “The CRMMP will be developed to re-establish the abundance, diversity and distribution of traditionally used plant species impacted by the project, in order to achieve equivalent pre-disturbance capability and suitability for traditional and wildlife uses. Where comparable restoration of comparable traditional use plants is not possible (based on existing conditions) or unlikely (due to a lack of success based on results of periodic monitoring and reporting with adaptive management), Benga commits to terrestrial offsetting to compensate for loss of traditional plants and communities, with appropriate offset ratios to be determined in a Terrestrial Offsetting Plan, to be prepared by one or more independent Qualified Professionals retained by the proponent.”

Under pathway 7 (wetlands), it states in the description of residual effects that the reclamation plan proposes “to increase the total wetland area available by closure. At closure with reclamation, an additional 18.2 ha of treed wetlands (STNN) will be added to the Project Footprint, and potentially another 1.8 ha of shallow open water (WONN) and/or open graminoid marsh will be added in the littoral zone around the end pit lake. These commitments need to be stated as such, so please add the commitment “at closure with reclamation, Benga commits to an additional 18.2 ha of treed wetlands (STNN) added to the Project Footprint, and another 1.8 ha of shallow open water (WONN) and/or open graminoid marsh added in the littoral zone around the end pit lake.”

Also under pathway 7 (for wetlands), add the following commitment under Under pathway 7 (wetland resources). “The CRMMP will be developed to re- establish wetlands impacted by the project, to achieve equivalent pre- disturbance capability and suitability for wildlife. Where restoration of comparable wetland communities is not possible (based on existing conditions) or unlikely (due to a lack of success based on results of periodic monitoring and reporting with adaptive management), Benga commits to terrestrial offsetting to compensate for loss of these wetland communities, with appropriate offset ratios to be determined in a Terrestrial Offsetting Plan, to be prepared by one or more independent Qualified Professionals retained by the proponent.”

Under pathway 8 (biodiversity and habitat fragmentation), please add the following commitment: “The CRMMP will be developed to re-establish biodiversity and habitat fragmentation impacted by the project, to achieve equivalent pre-disturbance capability and suitability for wildlife. Where restoration of biodiversity components and fragmentation impacts is not possible (based on existing conditions) or unlikely (due to a lack of success based on results of periodic monitoring and reporting with adaptive management), Benga commits to terrestrial offsetting to compensate for loss of biodiversity and increased fragmentation, with appropriate offset ratios to be determined in a Terrestrial Offsetting Plan, to be prepared by one or more independent Qualified Professionals retained by the proponent.”

Under pathway 9, change commitment 43 to “During the construction and operation phases, annual inventories will be conducted during each growing season to identify the presence, abundance and distribution of prohibited noxious and noxious weeds listed under the Weed Control Act and Regulation. These infestations will be promptly treated to prevent any further spread”

Add the following commitment: “Benga will develop and implement a Conservation, Reclamation Management and Monitoring Plan (CRMMP) which will include a Weed Management and Monitoring Plan section. This section will describe baseline (pre-project) invasive weed levels, as well as weed inventory, monitoring, and control methods (including frequencies, timelines, reporting deliverables) within an adaptive management context.

Wildlife – p100 The mitigations and commitments are lack Under wildlife, please add the following commitment: Benga will commit to the detail and scope to provide confidence that development and implementation of a comprehensive Wildlife Mitigation and residual impacts will be mitigated. Monitoring Plan (BWMMP) to be prepared by one or more independent Mitigations and commitments are also too Qualified Professionals retained by the proponent in consultation with KNC. vague to measure and verify that they are This plan will mitigate for wildlife impacts and evaluate residual impacts and being satisfied. More detail is needed in a potential need for compensation. This plan will update pre-project biodiversity formal plan, coupled with monitoring and wildlife distribution, abundance, and habitat fragmentation, and provide approaches and schedules, and an adaptive comprehensive mitigation and monitoring recommendations to limit project management framework to evaluate impacts and quantify unavoidable residual impacts to be addressed in a effectiveness of mitigations and Terrestrial Offsetting Plan.“ commitments. The need for compensation must also be addressed in commitments, Under pathway 1 (wildlife habitat), change commitment 7 (which does not say where expectations regarding impact what will be done if wildlife or features are found) to “Pre-disturbance surveys mitigation and recovery of wildlife, SAR and (wildlife sweeps) and surveys targeting animal species at risk (SAR) will be their habitats cannot be achieved and conducted in the development area prior to any construction to determine the residual impacts remain. Some wildlife occurrence of any SAR and important wildlife habitat features (such as guilds are not even addressed in migratory bird nests, mineral licks, active dens, bat habitat and hibernacula, mitigations. active raptor nest sites, and essential raptor habitat features that could indicate the presence of species at risk). Any SAR or SAR features found will be avoided by delaying or shifting construction activity until after animals have departed and/or until appropriate mitigation measures has been developed. Subject to monitoring, further mitigations and compensation may be required for SAR species and habitats and these will be included in the Terrestrial Offsetting Plan.

There do not appear to be any specific mitigations to address wildlife tree users and replace wildlife tree habitat (i.e., dead and dying trees with cavities, cracks, loose bark, broken tops, and other forms of decay) lost as a result of forest removal, and which take centuries to replace under natural conditions. An estimated 70 species of birds and mammals in the project area including primary cavity excavators (woodpeckers) and secondary cavity users (nuthatches, chickadees, bluebirds, swallows, cavity nesting waterfowl, cavity- nesting and open-nesting owls and birds of prey; squirrel chipmunk, and weasel species; bats, marten, etc.) all require wildlife trees for breeding, denning, roosting and/or feeding, Nest (and roost) boxes have been shown to suffer higher rates of nest predation and parasitism with lower reproductive success relative to wildlife trees, hence there is a need to create wildlife trees to mitigate for high value trees lost. Therefore, under pathway 1 (wildlife habitat), add the following commitment: “Benga will conduct wildlife tree surveys in the footprint areas subject to clearing to quantify and describe high value wildlife trees. Survey results (i.e., wildlife tree densities by tree species, diameter, height and decay classes, and types of wildlife use) will inform wildlife tree creation efforts. Fungal inoculation and mechanical methods will be applied to live healthy trees in the project area to accelerate the development of functional wildlife trees suitable for wildlife use. These efforts will be monitored for wildlife use and effectiveness to determine if there is a need for compensation as part of the Terrestrial Compensation Plan.”

There do not appear to be adequate mitigations and monitoring to address amphibians using wetlands and adjacent riparian habitats impacted by the project. Therefore, under pathway 1 (wildlife habitat), add the following commitment: “Benga will conduct amphibian surveys in footprint areas subject to clearing (for western toad) and in wetlands (for other amphibians) to quantify species abundance and distribution. Where wetland or riparian habitat drainage, harm or increased mortality risk to amphibians is unavoidable, amphibians will be salvaged and relocated to other suitable wetland habitats. Proposed wetland creation will be accompanied by surveys for amphibian use, survival and reproductive success to determine their functionality. If not functional, then compensation will be determined as part of a Terrestrial Offsetting Plan.”

Under pathway 1 (wildlife habitat), change commitment 17 as follows: “Benga will create roost sites for bats by constructing and erecting bat houses and creating wildlife trees in habitats adjacent to the Project footprint and in reclaimed areas. These efforts will be monitored for use and effectiveness to determine if there is a need for compensation as part of the Terrestrial Compensation Plan.”

Under pathway 2 (habitat fragmentation and connectivity), commitment 1 refers to “wildlife crossings” but provides no details on what wildlife guilds these crossings are intended to mitigate for, which is key in terms of their size, design, location and potential to be effective and how they would be monitored for effectiveness. More information is needed on the target guilds for mitigation and what types of crossings (culverts, overpasses, underpasses, bridges, tunnels, etc.) are being committed to. What is proposed for mitigation should directly reflect the results of baseline data gathered on wildlife use, animal movement and potential for roadkill mortality. Please add the following commitment: “To mitigate habitat fragmentation impacts on all wildlife guilds, Benga will investigate the most appropriate types of wildlife crossings (size, number, design, location and potential to be effective) to address the range of guilds (amphibians, reptiles, small mammals, furbearers, carnivores, et..) confirmed in the project area in the vicinity of the overland coal conveyor and access roads. Crossings will be strategically placed mitigate loss of connectivity and roadkill, and to maximize wildlife use.”

It states in commitment 5 that “Project-specific mitigations targeted to carnivore species have been incorporated into the C&R Plan.” What are these mitigations? These needed to be itemized here as commitments that can be measured and verified with monitoring for effectiveness, so please state what those mitigations are, when (frequency, duration) and where they will be applied, what specifically they are designed to mitigate for, and how they will be monitored for effectiveness to determine the need for further mitigations or compensation, as part of a Terrestrial Compensation Plan. As with other mitigations, these should be detailed in a Wildlife Mitigation and Monitoring Plan (WMMP) to be prepared by one or more independent Qualified Professionals retained by the proponent.

It states in commitment 5 that Benga will establish “mixed wood forest stands”, “high-density coniferous stands” and “maximize ungulate habitat” (presumably winter range which requires closed canopy forest for snow interception with nearby openings). Re-establishing such forests have not been successfully demonstrated on mine spoil and will takes many decades/centuries, if at all to achieve, given the demonstrated reduced success of natural shrub and conifer regeneration with climate change, even in forestry context with productive soils. Please add the following commitment “Benga will monitor wildlife habitat successional trajectories, likelihood for success, and associated wildlife use, and will compensate for residual impacts to wildlife habitat and dependent wildlife guilds as described in a Terrestrial Offsetting Plan.”

Under pathway 3 (wildlife mortality), change commitment 3 as follows: “Pre- disturbance denning and roosting (bats) surveys will be conducted at least one year in advance of construction commencement and again prior to vegetation clearing and other high-disturbance activities. Benga will consult with AEP as needed to develop appropriate mitigation and management strategies, monitor the effectiveness of strategies implemented. Depending on the success of the mitigations, Benga will compensate for residual impacts to bats and their habitat as described in a Terrestrial Offsetting Plan.”

Under pathway 3 (wildlife mortality), change commitment 4 as follows: Pre- disturbance surveys (acoustic surveys and visual searches) will be conducted at least one year in advance to identify wetlands and watercourses used by breeding Columbia spotted frogs, western toads and other amphibian species. Where wetland or riparian habitat drainage, harm or increased mortality risk to amphibians is unavoidable, amphibians will be salvaged and relocated to other suitable wetland habitats.”

Under pathway 3 (wildlife mortality), in commitment 9, please describe exactly what specific measures other than signage that Benga will use to implement, enforce and monitor the effectiveness of speed limits on mitigating wildlife mortality. Please add the following commitment: “Benga will systematically monitor and document wildlife roadkill and/or collisions (of all wildlife guilds including small mammals, bats, birds, amphibians and reptiles) and use this information to adaptively adjust locations for signage, crossings, speed monitoring display equipment and on the ground enforcement, to ensure that speed limits are complied with and wildlife mortality is minimized to the extent possible.

Under pathway 4 (wildlife abundance and distribution as well), please add the following commitment: “Benga will undertake pre-, during and reclamation phase monitoring of wildlife habitat suitability, wildlife abundance and use of the area (with emphasis on SAR and wildlife guilds of importance for traditional use) to evaluate changes associated with the project and to develop a Terrestrial Offsetting Plan to address unavoidable residual impacts on wildlife associated with this project.”

Under pathway 5 (wildlife health), the risk assessment showed that there was an elevated risk of selenium accumulation (and associated health risks) in selected wildlife (e.g., river otter, great blue heron, American dipper, waterfowl, potentially shorebirds, etc. and other riparian and wetland species) as a result of the project and the level of uncertainty remaining is high. Therefore, there is a need to conduct monitoring (primarily non-destructive) for these species to determine their occupancy and use of project areas, and to verify their reproductive success (i.e., brood size, hatching and fledging success, possible chick deformities or other impacts of Se). There are also benign methods to collect and test for Se concentrations in heron whitewash (below nests) or otter (feces collected or tissue, where trapped animals are available). Please add the following commitment: “Benga will conduct non-destructive monitoring of occupancy, use and reproductive success (i.e., brood size, hatching and fledging success, chick deformities) of those species in the risk assessment predicted to have elevated concentrations of Se. Benga will also investigate benign methods to collect and test for Se concentrations in wildlife, where feasible. This information will be reported on as outlined in the Wildlife Mitigation and Monitoring Plan (WMMP) and used to adaptively manage Se accumulations in the project area” Land Use and Under pathway 1 of Land Use and Historical Resources, change commitment 6 Historical Resources to state that “Benga will undertake progressive reclamation and reclaim the – p104 area to a landscape that includes provisions for a variety of land uses, including forestry, wildlife habitat, grazing, and recreational use. Where specific land uses (e.g., forestry, wildlife habitat, etc.) cannot be fully reclaimed to equivalent capability and function), Benga will provide compensation as described in the Terrestrial Offsetting Plan.”

Under pathway 2 of Land Use and Historical Resources, commitment 2 states “Where identified by Indigenous groups, sites of cultural and sacred importance within 100 m of a Project activity and outside the Project footprint will be flagged or marked prior to land disturbance.” What is the purpose of this flagging without follow-up to avoid the area? Please add “These areas will be strictly avoided during construction and operation of the Project. For areas within the footprint of impact disturbance, Benga will provide compensation for loss of cultural and scared importance, according to Terms and Conditions to be developed in collaboration with KNC.”

Cumulative Effects – Please note that 24 years starting now is Under monitoring and reclamation, please add to the existing commitment as p109 not reasonable for effectiveness monitoring follows: “Benga will work with other operators of coal mines, AEP, AER and program on a coal mine. In its Reclamation local stakeholders, to further develop (a) monitoring criteria and methods, (b) and Monitoring Plan, Benga must provide develop expected benchmark trajectories for vegetation succession in different estimates of how much habitat will be ecosystem types; and (c) for a representative range of VCs (with emphasis on reclaimed annually, how it defines rarer ecosystems, habitats and plants species including those of importance to “reclamation success”, what trajectory of Indigenous Groups), quantify baseline, project, and reclamation values and reclamation progress and success it expects condition. This will permit quantitative evaluation of progress toward (by ecosystem/habitat type), and how long reclaiming sustainable ecosystems comparable to pre-project with respect to it expects to monitor to verify that the structure, composition, function, and wildlife use. Benga will implement reclamation is successful, and/or to effectiveness monitoring at the onset of progressive reclamation using an compensate for residual impacts. adaptive management approach. In ecosystems and wildlife habitats where restoration is not proceeding according to expected trajectories or unlikely (due to a lack of success based on results of monitoring), Benga commits to other terrestrial compensation and offsetting to address residual losses of these ecosystems and wildlife habitats, with appropriate offset ratios to be determined in a Terrestrial Offsetting Plan, to be prepared by one or more independent Qualified Professionals retained by the proponent.”

Please state how long after project closure Benga commits to continue monitoring reclamation success to verify that it has reclaimed “closed canopy coniferous forests”, “old growth”, and other advanced successional habitats?

Under Wildlife, please modify commitment as “Benga is committed to mitigating Project effects throughout the construction, operation, and reclamation phases of the Project and collaboratively participating in any regional initiatives with regulators, Indigenous Nations, stakeholders, and other industry partners to minimize the effects of resource development on wildlife on the regional scale. This may include but is not limited to participation in future work on the following KNC initiatives: Elk Valley Cumulative Effects Management Framework (relative to cross provincial border wildlife movements, connectivity, habitat fragmentation and Highway 3 Roadkill Mortality and Mitigation), Regional Wildlife Camera Program, Regional Fish and Wildlife Committee, Regional Biodiversity Management Committee, and others.

In Table 4.1 (Collaborative Commitments) under blasting, there are additional commitments with regard to researching blasting at Turtle Mountain only, which state that “this will help understand the relationship between blast size and design and the vibrations measured on Turtle Mountain and to assist with developing appropriate benchmarks for blast vibration and noise, given that these do not currently exist.” This commitment should not be location-specific, so please modify to make it more general to the project area as a whole. Further work needs to be done to understand blasting impacts on fish and wildlife specifically (at site and landscape scales), to inform the assessment of residual impacts on fish and wildlife, so please add a commitment to undertake further work looking at blasting impacts on fish and wildlife specifically.

Sample Language: Environmental Monitoring, Aquatic Effects, Fisheries Offsetting and Compliance Notification

1. Environmental Monitoring Committee

The Proponent must establish and maintain an environmental monitoring committee (EMC) for all phases of the Project.

The Holder must invite participation from KNC. The Proponent must invite participation from additional agencies or organizations where relevant to particular topics being discussed. The purpose of the EMC is to facilitate information sharing and provide advice to the Proponent on the ongoing development of the Project and mitigation measures in a coordinated and collaborative manner.

The Proponent must develop an EMC Terms of Reference, in consultation with KNC. The terms of reference must include:

1. frequency, timing, and location of meetings; 2. methods for documentation of EMC meetings; 3. identification of other relevant agencies or organizations that may be invited to join topic specific EMC meetings and methods for determining which groups are relevant should new topics arise; 4. methods for the EMC to obtain relevant advice and expertise; 5. how the EMC can coordinate with other regulatory processes to ensure efficiency and reduce unnecessary overlap with other regulatory processes; and 6. an approach to periodically evaluate the effectiveness of the EMC.

The Terms of Reference must describe at a minimum the means by which, through the EMC, the Proponent must:

1. define the frequency with which the Proponent will canvass the EMC for issues to be discussed; 2. provide the results of all the environmental monitoring activities required through this Certificate to the EMC; 3. discuss any non-compliances with this Certificate; 4. discuss adaptive management measures that may address adverse effects not remediated by implementing Documents required by this Certificate; 5. coordinate review of Documents required by this Certificate when review by the parties in the EMC is required by this Certificate; 6. discuss key issues identified by the EMC, including but not limited to: a. Project design; b. Implementation and compliance with the requirements of this certificate and other regulatory requirements; c. Development and implementation of environmental management plans; d. Development and implementation of mitigation measures, including ongoing monitoring and adaptive management.

The Proponent must provide the terms of reference to KNC for review and approval within XX days of the issuance of a Certificate and a minimum of 45 days in advance of Construction.

2. Aquatic Effects Monitoring Plan

The Holder must retain a Qualified Professional to develop an Aquatic Effects Monitoring Plan (AEMP). The AEMP must be developed in consultation with KNC. The Proponent must develop the AEMP through a series of workshops and reviews with KNC.

The AEMP must include at least the following:

a. A description of the Project, associated activities, and study area; b. A conceptual model that describes the relationships between mining-related activities and potential effects on the aquatic environment; c. A description of the water quality issues and concerns that exist in the local and regional study areas; d. The objectives and a list of questions the AEMP is intended to answer; e. A description of the conceptual design of the AEMP and associated rationale (e.g. before-after-control-impact); f. a detailed description of the design of the monitoring program, including a list of assessment endpoints (e.g., viability of WSCT) and measurement endpoints (e.g., surface water chemistry) that will be incorporated into the AEMP; g. a description of the locations, timing, and frequency of sampling for each of the measurement endpoints that will be included in the AEMP; h. The means by which the data collected under the AEMP will be analyzed to determine the effects of the Project on the aquatic environment; i. Specific monitoring triggers (both below and at guideline levels when guidelines exist) and corresponding responses and mitigation measures that would be implemented if the triggers were reached; j. An assessment framework for evaluating whether monitoring outcomes are acceptable or not; k. A list of reports that will be prepared to disseminate the results of the AEMP, including a description of the proposed frequency, timing, structure, and content of each report; l. The process and timing for sharing monitoring and study results, including the reports required under item (k), with KNC; and m. remedial actions that must be implemented if the AEMP finds unacceptable and/or excessive concentrations of parameters are Project- related as determined by a Qualified Professional.

The plan must include the following adaptive management components:

a) Triggers, including early-warning triggers, for management action; b) Description of the management actions (response framework; e.g., evaluation of materiality, mitigation) that will be taken if a trigger is exceeded; and c) The means by which the effectiveness of the mitigation measures will be evaluated through the development of management questions, key uncertainties, and a schedule for evaluating effectiveness (i.e., reducing key uncertainties);

The AEMP must include, at minimum, the following components:  Water Quality;  Sediment Quality;  Benthic Invertebrate Community Structure;  Benthic Invertebrate Tissue Chemistry;  Calcite;  Groundwater – Surface Water Interactions;  Hydrology;  Fluvial Geomorphology,  Bioenergetics; and  WSCT Population:

The Proponent must provide a draft of the AEMP to KNC for review before submission of an Application for permitting for this Certificate.

The AEMP, and any amendments thereto, must be implemented to the satisfaction of a Qualified Professional and to the satisfaction of KNC throughout Construction, Operations, Reclamation and Closure, and Post-Closure. Annual Reporting documents must be issued to KNC for review to improve monitoring and the effectiveness of mitigation measures.

3. Fisheries Offsetting Plan

The Holder must retain a Qualified Professional to develop a Fisheries Offsetting Plan (FOP). The FOP must be developed in consultation with KNC. The Proponent must develop the FOP through a series of workshops and reviews with KNC.

The Proponent must provide a draft of the FOP to KNC for review before submission of an Application for permitting for this Certificate.

The FOP, and any amendments thereto, must be implemented to the satisfaction of a Qualified Professional and to the satisfaction of KNC.

Offsetting reporting documents must be issued to KNC for review to determine the effectiveness of offsetting measures.

Compliance Notification

The Proponent must notify KNC: a) as soon as practical; and b) In any event, no more than 72 hours, after the Proponent determines that the Proponent has not, or may not have, fully complied with this Certificate.