Northern Gateway Response to Six Nations IR No. 1 Page 1 of 34 Hearing Order OH-4-0211 Enbridge Northern Gateway Pipelines Inc. (“Enbridge”) Enbridge Northern Gateway Project (“Project”) NEB File OF-Fac-Oil-N301-2010-01 01 Enoch Cree Nation #440 (“Enoch”), Ermineskin Cree Nation (“Ermineskin”), Louis Bull Tribe (“Louis Bull”), Montana First Nation (“Montana”), Samson Cree Nation (“Samson”), Whitefish (Goodfish) Lake First Nation (“Whitefish”) (individually, a “Nation”, and collectively, the “Nations”) Information Request No. 1 1.1 Aboriginal Consultation Reference: i) Application Volume 5A, Table B-1 ii) Application Volume 5A, 2.5 Preamble: Reference i) explains what Aboriginal groups were contacted during the 2002 feasibility studies. Reference ii) explains Enbridge's Aboriginal Engagement Zone for the Project. Request: a) Please confirm that Enbridge did not directly consult with Samson during the 2002 feasibility studies. b) When does Enbridge consider it to be appropriate to provide funding to an Aboriginal group to facilitate its meaningful participation in Project consultation? Please fully explain the criteria Enbridge uses to make this determination. c) Please explain in detail the circumstances where Enbridge would treat two Aboriginal groups differently in terms of its engagement activities and provision of capacity funding for meaningful engagement, despite those groups being in similar circumstances relative to the Project and its likely impacts. d) Please provide examples of where Enbridge has engaged Aboriginal groups differently in terms of agreements, capacity funding, and Aboriginal traditional knowledge ("ATK") study funding, despite those groups being in similar circumstances relative to the Project and its likely impacts. Please fully explain the rationale behind these differences in treatment. e) Will Enbridge still build the Project if the Crown has not fulfilled its duty to consult and, if appropriate, accommodate each of the Nations concerning the Project? f) Please advise which federal department Enbridge has provided information to related to Enbridge's Aboriginal engagement process concerning the ENB LL 23687479 Northern Gateway Response to Six Nations IR No. 1 Page 2 of 34 Nations. In particular, please outline what potential Project impacts to the Nations' rights and interests Enbridge has communicated to federal departments, and please provide copies of all such communications. Response: a) Confirmed. The Samson Cree First Nation’s current community is located near Hobema, Alberta, more than 100 km from the pipeline corridor. b) Northern Gateway offered and provided funding to Aboriginal groups along the proposed Project RoW to facilitate their meaningful participation in Project consultation through protocol agreements. Many Aboriginal groups, during discussions with Northern Gateway in 2005, expressed an interest in establishing a formal relationship with Northern Gateway, resulting in the development of protocol agreements. Protocol agreements define the working relationship between the participating Aboriginal groups and Northern Gateway and provide capacity funding to enable the Aboriginal groups to participate in discussions on the potential effects and benefits of the Project relative to their unique interests. For more information regarding protocol agreements and to view a copy of a protocol agreement used by Northern Gateway refer to the Application (Volume 5A). In cases where an Aboriginal group was offered funding under a protocol agreement and chose not to accept the funding, Northern Gateway respected the determination of the Aboriginal group to decline the offer, whether the decline was made explicitly or implicitly through non-response to the funding offer. c) At the outset, parties whom Northern Gateway perceived to have similar circumstances were engaged in similar ways. Northern Gateway’s subsequent level of engagement activity with an Aboriginal group depended on the evidence provided by the Aboriginal group that traditional uses exist that may be impacted by the Project and upon the level of interest of the Aboriginal group in the Project – particularly for groups on the periphery of the 160 km engagement corridor. For example although the Whitefish Lake First Nation and the Samson Cree Nations are similarly distant from the Project corridor, the Whitefish Lake First Nation provided early evidence of traditional uses which could potentially be impacted upon by the Project and were prepared to substantively engage with Project representatives, in a timely manner. Consequently, the degree of engagement with the Whitefish Lake First Nation has been more extensive culminating in an offer of equity participation to this group. d) In respect of ATK funding offered to Aboriginal groups, Northern Gateway employed the procedures outlined in its ATK Program to jointly arrive at an agreed upon amount of ATK funding with the Aboriginal groups to complete its ATK study. The Funding amount was proportional to the scope of ATK work identified and mutually agreed upon. ENB LL 23687479 Northern Gateway Response to Six Nations IR No. 1 Page 3 of 34 e) The Federal Government has established a Framework for Crown Consultation on the Northern Gateway Project. This framework, including the JRP process, provides the opportunity for consultation regarding the Project prior to the various approvals that will be required in order to construct the Project. Northern Gateway believes that this Framework, which includes the JRP process currently underway, will satisfy the Crown’s obligations to First Nations with respect to the Project. f) All of this information has been, and continues to be, provided on the record in the JRP proceeding. This includes the Project Application (Volumes 5A and 5B) as supplemented and updated. Information continues to be sought by Federal government departments and other interveners and all information requested will be on the record of the JRP proceeding. ENB LL 23687479 Northern Gateway Response to Six Nations IR No. 1 Page 4 of 34 1.2 Traditional Land Use Impacts and Aboriginal Traditional Knowledge Reference: i) Application Volume 5A, pp. 2-13 to 2-14 ii) Application Volume 5A, p. 5-12 to 5-13 iii) Application Volume 5A, p. 5-2 to 5-3 iv) Application Volume 5A, p. 5-27 to 5-33 v) Application Volume 6C, p. 6-30 vi) Application Volume 5A, Appendix M Preamble: At reference i) Enbridge concludes that, based on the work done to develop the environmental and socio-economic assessment for the Project, including ongoing ATK work, the Project is not likely to cause significant adverse effects on the environment. Enbridge also concludes that it is confident the Project will not have a significant adverse effect on those who depend on the land and water for sustenance, including Aboriginal groups who may exercise Aboriginal or Treaty rights. Reference ii) explains that Enoch's traditional territory will potentially be crossed by the Project. Reference iii) explains that Whitefish's traditional territory will be crossed by the Project, and that an ATK study has not been completed for Whitefish. Reference iv) explains that an ATK study has not been completed for Samson, Ermineskin, Louis Bull or Montana. Reference v) explains that a number of historic trails have been identified, and that the Project may obscure these trails. Reference vi) provides a summary of concerns and responses. Request: a) Please identify the traditional territory for each Nation. b) Please explain what specific mitigation measures Enbridge plans to implement to mitigate or prevent impacts to each of the Nation's Aboriginal and Treaty rights, including scheduling of activities to avoid sensitive periods from an environmental perspective, avoiding periods when traditional harvesting activities are taking place in the Project area, or other mitigation measures such as compensation and employing Aboriginal monitors. The Nations are interested in what specific plans Enbridge is preparing or has identified concerning each of the Nation's specific current traditional land use ("TLU") activities on an individual basis rather than a general Project effects mitigation strategy. c) Please list and describe all historic trails identified by Enbridge in each of the Nations' traditional territories, and please explain the mitigation ENB LL 23687479 Northern Gateway Response to Six Nations IR No. 1 Page 5 of 34 Enbridge is proposing to avoid impacting these historic trails. d) Reference vii) provides a discussion of impacts on TLU sites within the 160-km wide Aboriginal engagement corridor. Please explain whether Enbridge agrees that impacts to wildlife and the environment in general due to the Project can result in impacts to Aboriginal and Treaty rights within and outside of the proposed right-of-way or Aboriginal engagement corridor. e) Please indicate whether Enbridge believes that each of the Nations exercise TLU activities or possess ATK in the Project area? If not, please provide the basis for this position. f) Please explain whether Enbridge has sought feedback and facilitated the provision of such feedback from each of the Nations concerning the specific mitigation measures Enbridge is proposing to avoid or lessen impacts to each Nation's Aboriginal and Treaty rights. g) Please explain how feedback received from each of the Nations regarding the mitigation measures proposed by Enbridge to mitigate impacts on each Nation's Aboriginal and Treaty rights has been incorporated into the Project design and planning.