_________ — 11fl4/IU 1:Z FM. O4b42b2 Donovan & company —— O35 Kitamaat Village Council KAISLA P.O. OX 1101 IWA4A vrwAoE, LC. VOT 2B0 ThLEPIIONE 639-9362, 639-9361 OR 639-9383 FAX 632-2640 August 24, 2009 VIA FAX TO: 613-957-0941 Canadian Environmental Assessment Agency 2d 160 Elgin St, Floor I2IJD 27Mg Ottawa, ON K1AOH3 J / Attention: Brett Maracle. Panel Manager AND VIA FAX TO: 403-231-3920 Enbridge Northern Gateway Pipelines 3O0O—4251StSW Calgary. AS T2P 3L8 Attention: John Carruthers, President Dear Mr. Maracle and Mr. Carruthers: Re: Enbridpe Gateway Pipeline Project The Kitarnaat Village Council is whting this letter to set out the concerns of the Haisla Nation with Enbridge’s proposed Northern Gateway Pipelfne Project and the Crown’s proposed regulatory and environmental review of this project. Introduction Enbridge’s Northern Gateway Project proposes to run two pipelines from A]berta to the British Columbia coast (the ‘proposed project”). One pipeline will carry oil, the other wilt carry condensate. The oil and condensate will be transferred to and from marine tanker5 at a proposed marine terminal at Kitimat, BC The 1-laisla Nation has reviewed the information to date on the proposed projedt, as well as the Crown’s proposed regulatory and environmental review process and approach to consultation, and has identified a number of concerns. The proposed project would entail placing two pipelines through the Kitamaat River watershed, in the heart of Hasla Nation Territory, and building a marine terminal for oil 1 NOV—24—ZOtO 12:27 604S984282 95 F . 035 tankers at the head of Klimat Arm, in close proximity to a number of Haisla Naftn reserves and along the shores of the Haisla’s Natons marine resource grounds. The potential impacts of oi spills associated with the proposed project are of significant concern to the Haisla Nation. The Kftamaat Village Council through correspondence has been seeking involvement in the development of a meaningful process to address Haisla Nation aboriginal rights, ncluding title, within the context of the potential impacts of the proposed project. The Crown has disregarded Aboriginal Rights and Title case law that has been establis’ed in Canada’s own courts by repeatedly ignodng Kitamaat Village Council correspondence requesting a commitment to adequate and meaningful consultation. As set out in the Mikisew Cree’ decision, consultation is not merely a process for First Nations to blow off steam before the Crown proceeds to do what it intended to do all along. Proposed Regulatory and nvironrnental Review Process The Kitamaat Village Council, representing the Haisla Nation, has sought to be involved in the development of an appropriate process for the review of the potential impacts of the proposed project. The federal Crown has repeatedly ignored Kitamaat VUlage Council correspondence seeking involvement in the development of a meaningful orocess to address Haisa Nation aboriginal rights, including tiNe, within the context of the potential impacts of the proposed project The federal Crown has set out a pTocess for a Joirr Review Panel (JRP”) assessment of the Project, in a D’aft Agreement.2 Pursuant to the Draft Agreement, the JRP has been given a limited mandate: to meet the requirements of the Canadian Environmental Assessment Act (the CEAA”) and the National Energy Bowd Act. The Terms of Reference component of the Draft Agreement identifies the factors listed in subsections 16(1)(a) to (d) and 16(2) of the CE.AA as factors to be considered during the review. Significantly1 these sections do not include any assessment of potential impacts of a project on aboriginal interests that do not have an dimension. The JRP review pitCCss is to be conducted in attordance wth the National Energy Board Rules of Practice and Procedure, 1995, making this a quasi-judicial process ri which there is no ability for the Panel to engage directly in consultation with First Nations. The proposed JRP process clearly grouøs Aboriginal people” with “the public”. The role of First Nations, includfrig the Haisla Nafiorl, in the JRP process, as currently conceived, would be that of interveners. Case law recognties the right of First Nations to “a distinct, if not a more extensive’3 consultation process Mikizew Cree First Nation v, Canada (Mb, Caned/sn Herifags), 2005 SCC 69. Draft Agreement Serween the NtinaI Energy oard and the Minister of the EflVirDflmeFlt concerning the Joint Rev ew Parel of the Ertrlcge Gateway Pro;eDt. 2 Mmsew Cre&. 2 Nov—24—2010 12:27 6046e842e2 96Z P.036 ________________ J.:z, ra bU4O84Z5Z Donovan & company IO37 The proposed JRP process therefore fails to acknowledge the constitutional protection afforded to aboriginal rights and the procedural requirements for consu’tation, set out in the case law and founded in the honour of the Crown, whenever the Crown considers a decision or activity that has the potential to impact aboriginal interests. The Draft Agreement for the JRP refer to a separate and more detailed communication” setVng out the ‘manner in which the Crown proposes to consult with Aboriginal people’ (s. 6.4). The separate communication consists of a letter attaching a document titled “Approach to Crown Consultation for the Northern Gateway Project. This document states that: • The JRP is the key assessment and decision-making body for the project and has a broad mandate under both the National Energy Board Act and the Canadian Environmental Assessment Actlo examine project-related issues. • The Canadian Environmental Assessment Agency (Agency) representing the Crown will lead the initial consultation on the JRP Agreement as well as consultation on the Environmental Assessment Report issued by the JRP. • The Agency will be Ihe contact for the Crown for project-related matters raised by Aboriginal groups that are outside the mandate of the JRP. The Haisla Nation has identified a number of matters that are outside the mandate of the JRP. The first of these is the regulatory and environmental review process itself. The Canadian Environmental Assessment Agency is supposed to be leading consultaton on the Draft Agreement, but to date this consultation has been woefully inadequate. The Haisla Nation has sought meaningful engagement from the Crown in the development of an appropriate process for the review of the potential impacts of the proposed project since 2005. • In October of 2005, the Haisla Nation informed the federal and provincial Crowns of its aboriginal title and rights claim to areas potentially impacted by the proposed project and sought to be meaningfully involved in the developmsnt of an appropriate review proces& • On August 5, 2008, the Haisla Nation sought a commitment from the Crown to Haisla Nation involvement in the design of the regulatory and environmental review process for the proposed project. • On December 28, 20Q8, the Haisla Nation sought information from the Crown on how it proposed to involve the Haisla Nation in the regulatoiy and environmental review of the proposed project. • On February 3, 2009, the Haisla Nation once again sought a commitment from the Crown to consult with the Haisla Nation on the desfgn of a regulatory and environmental review process for the proposed project. The Haisla Nations numerous requests for meaningful engagement at the early stages of the review process — at the design stage of the process — have gone unaddressed. 3 NOV—24—2010 12:2? 6046084282 95z P.03? 11/Z4/1O 12:27 FAX 8046864282 Donovan & Colbp&nY To dale, the oniy communication on this point that the Haisla Nalicn has received from the Crown has beer in the form of standard letters sent to all interested parties or all First Nations pctentally affected by the project. The Haisla Nation has identified specific concerns with respect to the technical aspects of the JRP process Terms of Reference, as set out in its AprU 14. 2309 submission to CEA& To date, there has been no response to these technical comments, and no indicatiori whether or how the JRP process will be modified The Haisla Nation has also identified a number of other matters that are beyond the JRP mandate, including but not limited to: .• Consideration of Haisla Nation law ard stewardship: • Shared decision making; and • Potential infringements of Haisla Nation title and rights that are not environmental’. Infringement of Haisla Nation Aboriginal Title and Rights The unilateral imposition of a Crown selected regulatory and environmental review process ignores two fundamental aspects of Haisla Nation aboriginal title and rights. Firstly, the Haisla people are the stewards of their Terriloi-y and hold the lands and waters in trust for future generations. Secondiy, the Haisla Nation operates under a system of traditional law (Hais(a Nuyem) and H&sla land ownersNp concepts of wa’wais and bagwwyas, Sy failing to involve the F-{aisla Nation in the design of the regulatory and environmental review process for the proposed project, the Crown has ignored aspects of Haisla Nation governance, an impartart dimension of Haisla Nation aboriginai tite and r!ghts Practical Concerns Finally, the Haisla Nation has a number of concerns with respect to nb1dge’s ability to safeguard the environment and Haisla Nation interests. Enbridge owns ard operates a number of oil pipelines in North American jurisdictions and has, despite its espoused goal of achieving zero spills and leaks, had significant spills in recent years. In 2005, the company had 70 spills totalling 9,825 barrels; in 2006, the company had 67 spill totalling 5,663 barrels: in 2007, the company had 65 spills totaIing 13.177 barrels. Further, Enbridge has caused irreparable harm to HasIa Nator, traditionai sites through the felling of culturally modified trees, as a result of work conducted by its contractor, AMEC. The Kitaniaat Village Council has asked both Enbridge and the Crown to mitigate the losses flowing from this activity, but to date neither party has addressed this in good faith.