Hearing Order OH-4-2011 Enbridge Northern Gateway Pipelines Inc. (“Enbridge”) Enbridge Northern Gateway Project (“Project”) NEB File OF-Fac-Oil-N304-2010-01 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 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. 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. - 2 - 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 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. h) In principle, does Enbridge agree that Project effects can act cumulatively with other past, present and future effects, and that such cumulative effects can impact Aboriginal and Treaty rights? - 3 - i) Based on specific TLU and ATK information concerning each of the Nations, please provide a cumulative effects analysis of Project effects in conjunction with other past, present and future projects on each Nation’s Aboriginal and Treaty rights in each Nation’s traditional territory. j) If an ATK study has not been conducted for each of the Nations in the Project area, please explain how Enbridge intends to identify effective mitigation specific to each Nation’s rights and interests? k) As a general proposition, does Enbridge believe it has the responsibility to investigate and facilitate the gathering of ATK and TLU information for the Project? l) What criteria does Enbridge use to determine (i) whether an ATK study is needed for the Project and, if one is determined to be needed, (ii) how does Enbridge determine what level of funding it will contribute to such studies? m) Please describe which hunters and fishers from each Nation that Enbridge has had discussions with concerning hunting activities within the Project area, and also describe any inquiries Enbridge made with the Government of Alberta regarding the number of net fishing licenses issued to members of each Nation on bodies of water within or near the Project area. n) Please describe which gatherers from each Nation that Enbridge has had discussions with concerning traditional gathering activities within the Project area. o) Please describe which trappers from each Nation that Enbridge has had discussions with concerning traditional trapping activities within the Project area, and also describe any inquiries Enbridge made with the Government of Alberta regarding registered traplines held by members of each Nation. p) Please explain in detail with supporting references how each Nation’s TLU activities, ATK and the cultural significance of traditional harvesting resources were taken into consideration when developing Application Volume 5A, Appendix M. q) Please explain in detail with supporting references how each Nation’s TLU activities, ATK and the cultural significance of traditional harvesting resources to each of the Nations were taken into consideration when identifying appropriate - 4 - mitigation measures with respect to Project impacts on each Nation’s TLU activities including hunting, trapping, fishing and gathering rights and interests. r) Please explain in detail with supporting references how each Nation’s TLU activities, ATK and the cultural significance of traditional harvesting resources to each of the Nations were taken into consideration when arriving at the significance determinations in the Project environmental and socio- economic assessment. Additionally, please explain in detail with supporting references the extent to which, if at all, an Aboriginal perspective was considered when making significance determinations in the Project environmental and socio-economic assessment. s) For each of the Nations, please list and describe each sensitive area contained within each Nation’s traditional territory from an environmental perspective (e.g., critical habitat, calving areas, rare plants, important spiritual and cultural sites such as Lac St. Anne etc.), and fully explain the specific mitigation measures Enbridge is proposing to ensure no impacts to these sensitive areas. 1.3 Enoch ATK Study Reference: i) Application Volume 5B, Appendix C ii) Application Volume 5B, p. 5-9 Preamble: Reference i) summarizes part of Enoch’s ATK study with respect to identified effects and specific mitigation proposed by Enoch. Reference ii) explains that approximately 475 km (40%) of the Project right of way is in the regional effects