O’Chiese First Nation Kinder Morgan (Trans Mountain Pipeline ULC) Calliou Group Traditional Land Use Study Trans Mountain Expansion Project September 13, 2013 1.2 Standard Regulatory Process An environmental assessment (EA) within a regulatory review process has become the central tool for regulators and Crown decision makers to predict outcomes resulting from a natural resource development approval. Since 1969 when the first requirements for an assessment appeared in the U.S. National Environmental Policy Act, and in 1973 in Canada as a Cabinet policy as the Environmental Assessment and Review Process Guidelines (Benedickson 2009), most developed countries have now adopted EA laws to guide the review of potential industrial activity (Haddock 2010). This holds true for Canada as all regulators, including federal, territorial and provincial, use the EA process when considering the approval of large- scale natural resource projects (Benedickson 2009). EAs involve the prediction of potential effects resulting from a proposed project on various components of the environment before they occur (Canadian Environmental Assessment Agency 2011). The definition of ‘environment’ includes natural or biophysical, social and economic components (Benedickson 2009). The definition of ‘effect’ varies slightly between jurisdictions, but generally can be described as a measurable change to a component of the environment. Employing a defensible methodology to gather, document and analyze information within the EA process is essential, as the manner in which information is treated can greatly influence the outcome of the inquiry. Both the public and Aboriginal groups have expectations that the EA process must proceed without a predetermined outcome. As the EA process involves the consideration of competing interests, the appearance of bias or distortion of results can greatly affect confidence of the validity of the results. In order to provide a high level of public confidence in the conduct of an EA, studies that collect information about potential negative and positive effects for the assessment must adhere to fundamental research principles, such as transparency, accountability and scientific rigour. This helps to ensure the outcomes and resulting decisions made by the regulator and/or the Crown are supportable (Haddock 2010). For example, supporting documentation and raw data should be available for review and examination by interested parties to the assessment process (Bedder 1993). Professional qualifications (outlining education and experience) of those conducting studies should also be available for review and examination. Also, conflict of interest should be minimized as much as possible for the authors of each study. 16 O’Chiese First Nation Kinder Morgan (Trans Mountain Pipeline ULC) Calliou Group Traditional Land Use Study Trans Mountain Expansion Project September 13, 2013 Basic research design and conduct, more commonly referred to as “methodology” is meant to ensure data collection integrity from three important aspects: credibility, dependability and confirmability (Bryman et. al. 2009). Credibility speaks to the study investigator’s bias; in other words, did the study’s author allow their personal bias to change the nature or conduct of the study? Dependability speaks to the consistency of the findings; will the results be consistent over time, assuming there are no changes in study variables? Finally, confirmability speaks to the replicability of the study; given the same circumstances, will the same results be reached by another investigator? If basic scientific or investigative techniques are not followed to ensure compliance with these three elements, review and scrutiny of the study methodology will likely result in minimization or dismissal of results. The methodology used to predict potential effects in the natural or biophysical components of the environment is relatively well understood, as these quantitative studies have a 25 year history in Canada (Nikiforuk 1997).2 Methodologies used for identifying, measuring and assessing effects also rely on judgments that represent decades of experience accumulated by numerous experts. Methods to predict effects on the components of the environment relating to assessing potential impacts on traditional land use and/or the exercise of Treaty and Aboriginal rights are relatively new. For example, under the Canadian Environmental Assessment Act (CEAA, 2012), for Aboriginal peoples, the definition of “environmental effect” includes: an effect occurring in Canada of any change that may be caused to the environment on (i) health and socio-economic conditions, (ii) physical and cultural heritage, (iii) the current use of lands and resources for traditional purposes, or (iv) any structure, site or thing that is of historical, archaeological, paleontological or architectural significance3. The collection of the above types of information now required by regulatory regimes can be facilitated by a land and resource use study, commonly referred to as a Traditional Land Use (TLU) Study. The conduct of properly executed TLUS Study which employs rigorous methodologies comparable to those used to assess biophysical components of the environment will assist in satisfying these regulatory requirements. 2 The first major EA was the Mackenzie Valley Pipeline in 1974, tasked with identifying the social, economic and environmental effects of the Arctic Gas Pipeline. (CEAA, 2012 Section 5(1)(c). 3 17 O’Chiese First Nation Kinder Morgan (Trans Mountain Pipeline ULC) Calliou Group Traditional Land Use Study Trans Mountain Expansion Project September 13, 2013 1.3 Traditional Land Use Studies (TLUS) Traditional Land Use Studies (TLUS) (sometimes called “Land Use and Occupancy Study”, “Traditional Knowledge Study”, “Traditional Use Study” or “Aboriginal Traditional Knowledge Study”) which employ the documentation of oral information from Aboriginal people, have become accepted for use in determining the scope and nature of Aboriginal rights since the Supreme Court of Canada decision of Delgamuukw v. British Columbia (“Delgamuukw”) in 1997 (Thom 2001). TLUS may be conducted on a project-specific basis, or by way of a longer-term comprehensive study. Both are used to collect and document land use information; the former within a project-specific area, and the latter, throughout an Aboriginal group’s traditional territory. TLUS both collect and document Aboriginal use and knowledge relating to how and by whom lands and resources are used and the types of rights-based practices that are exercised. Project-specific TLUS tend to focus on the question, “what Aboriginal use exists in the area that may be potentially impacted by the project?” A project-specific Traditional Land Use study as such, collects baseline traditional use information. This baseline information can then be integrated into the EA process itself, and used in order to assist in the identification of potential adverse effects to either the current use of land and resources or the exercise of Section 35 rights for each Aboriginal group potentially affected by a Project. 1.3.1 Traditional Land Use Study Types There are two types of TLUS: project-specific and comprehensive. Comprehensive, or use and occupancy studies, are primarily community, or Nation-driven studies meant to collect and document comprehensive land use information throughout a Nation’s traditional territory. These studies are not project-specific, and do not attempt to describe or identify potential effects from any individual project. They are useful in several applications including: documenting cumulative knowledge of a Nation on a broad scale; preserving culture and language information as part of the Nation’s heritage; for educational purposes for internal or external audiences and; raising community awareness and pride. Comprehensive TLUS are long term, in depth and extremely resource intensive; these studies are also extremely useful in establishing the trigger for Aboriginal consultation, by documenting general TLUS information unrelated to any specific project and thereby establishing the strength of a Nation’s claim to their traditional territory. 18 O’Chiese First Nation Kinder Morgan (Trans Mountain Pipeline ULC) Calliou Group Traditional Land Use Study Trans Mountain Expansion Project September 13, 2013 Project-specific TLUS collect and document Aboriginal knowledge in the context of single project application or project-specific regulatory process. These studies generally focus on the narrow spatial and temporal parameters dictated by the proposed project in question. Information documented through project-specific TLUS tends to focus on the question, “What Aboriginal use exists in the area that may be potentially impacted by the project?” 1.3.2 Traditional Environmental Knowledge There are two types of information collected in the context of project-specific Traditional Land Use Study. Both types of information should be viewed together. The first type is called Traditional Environmental (or Ecological) Knowledge (TEK). TEK is a cumulative body of qualitative knowledge and beliefs, handed down through generations, primarily by oral transmission, describing the relationship of living beings (including humans) with one another and with their environment. Further, TEK is associated with Aboriginal societies with significant and historical continuity in resource use practices (Berkes 1998). Qualitative TEK information provides the context behind land use by Aboriginal