APPENDIX B. Cumulative Effects on the Aboriginal Rights and Interests of Carrier Sekani Tribal Council First Nations

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1 APPENDIX B Cumulative Effects on the Aboriginal Rights and Interests of Carrier Sekani Tribal Council First Nations A Preliminary Re-assessment of the Coastal GasLink Project

2 Cumulative Effects on the Aboriginal Rights and Interests of Carrier Sekani Tribal Council First Nations: A Preliminary Re-assessment of the Coastal GasLink Project Extended Summary of Main Report Alistair MacDonald, The Firelight Group Research Cooperative October, 2014 Prepared for the Carrier Sekani Tribal Council # Johnson St., Victoria BC V8W 3C6 T: E: info@thefirelightgroup.com i

3 Cumulative Effects on the Aboriginal Rights and Interests of Carrier Sekani Tribal Council First Nations: A Preliminary Re-assessment of the Coastal GasLink Project EXTENDED SUMMARY OF MAIN REPORT Lead author: Alistair MacDonald, The Firelight Group Research Cooperative Prepared for the Carrier Sekani Tribal Council (CSTC) October, 2014 # Johnson St., Victoria BC V8W 3C6 T: E: info@thefirelightgroup.com The author s appreciation goes out to the CSTC and its members Nations, who provided a variety of useful documentation and insights into Carrier Sekani values, worldview, goals and aspirations, and the changes over time and effects that have occurred in their combined territories since first contact with non-aboriginal peoples. Thanks to staff and members of The Firelight Group who provided research, mapping, and writing support. Extra special thanks go to Marlene Flannery, CSTC s Geographic Information Systems Coordinator, Jaime Sanchez and Karyn Sharp of CSTC, and other providers of materials that supported the development of this report. ii

4 Executive Summary Introduction Alistair MacDonald of The Firelight Group ( the author ) was retained by the Carrier Sekani Tribal Council ( CSTC ) to undertake a peer review of the cumulative effects assessment ( CEA ) carried out by the Proponent for the proposed Coastal GasLink Project (the Project ). The Project is proposed across the traditional territories of five CSTC member Nations (Nadleh Whut en, Nak azdli, Saik uz, Stellat en, Ts il Kaz Koh (Burns Lake Band)). Overall, the Project would cover approximately 232 km of CSTC territory, representing some 36 per cent of the length of the proposed pipeline. Cumulative effects of the Project in combination with other past, present and reasonably foreseeable future developments are of serious concern to CSTC due to the very large number of existing land fragmentation and currently proposed developments in CSTC territory. The Project is located in the southern portion of CSTC territory, an area already subject to relatively high levels of industrial development, land privatization, and landscape fragmentation. In addition, it is located close to the existing PNG gas pipeline, the proposed PNG Looping and Pacific Trail pipelines, and the proposed Enbridge Northern Gateway bitumen and condensate pipeline system. In this peer review, the author (i) identifies the key gaps and deficiencies with the Proponent s CEA; and (ii) develops a preliminary alternative assessment of cumulative effects of the Project in combination with past, present and reasonably-foreseeable future developments on the CSTC member Nations Aboriginal rights and interests. A sufficiency of resources approach is used by the author to assess cumulative effects. This approach identifies that the focus of assessment should be on the minimum quality and quantity of land and resources required for the full practice of Carrier Sekani culture, mode of life, and Aboriginal rights. Adverse effects on these sufficiency resource requirements will limit or prevent Carrier Sekani member Nations from meaningfully exercising their Aboriginal rights, for example by not having an adequate land base to pursue seasonal rounds or not having adequate preferred harvesting species in one s traditional territory in order to conduct successful harvests. (i) Gap Analysis of Cumulative Effects Assessment on Aboriginal Rights There are at least ten major deficiencies with the methods used by the Proponent and EAO to assess the Project s cumulative effects on CSTC member Nations Aboriginal rights. Those methods: 1. Fail to consider cumulative effects on (i) Aboriginal people within their territories, and (ii) fish and wildlife populations at regional or conservation unit level (i.e. at the spatial scale and location relevant to the exercise of Aboriginal rights). 2. Fail to characterize CSTC member Nations values, worldview, history, and exercise of Aboriginal rights, or include them as valued components ( VCs ). iii

5 3. Fail to adequately integrate traditional land and resource use ( TLRU ) information from CSTC member Nations to determine baseline, thresholds, or effects. 4. Fail to consider pre-industrial baseline data for any VCs, wildlife status, and practice of Aboriginal rights. 5. Fail to consider historic impacts to date and fail to describe the primary causal factors of adverse change to sufficiency resources in CSTC territory, such as land privatization and industrial forestry practices. 6. Merely consider project contribution, masking total effect load on VCs (i.e. health or resilience of VCs). 7. Fail to assess TLRU or Aboriginal rights as separate, independent VCs. Rather, the Proponent and EAO improperly primarily use wildlife VCs as proxies to assess impacts on Aboriginal rights. 8. Fail to define thresholds of acceptable change for most VCs that are relevant to CSTC. 9. Fail to consider the possibility - and implications - of there being pre-project existing significant adverse cumulative effects on VCs (e.g. caribou, certain Aboriginal rights, Nechako White Sturgeon, etc.). 10. Fail to complete any CEA for Aboriginal rights and provide an inadequate, non- CSTC territory specific CEA on TLRU. (ii) Preliminary Alternative Assessment of Cumulative Effects on CSTC Member Nations Aboriginal Rights Identifying Critical Resources for CSTC Aboriginal Rights Practices Prior to European settlement, ancestors of CSTC member Nations relied upon a strict set of intricate values and rules for governing resource use and land title. This system maintained their way of life over the long-term, which generated surpluses for trade and sustaining large populations. An examination of historical sources and current practices reveals that the resources required to meaningfully exercise Aboriginal rights include: (1) healthy populations of fish and game in preferred harvesting areas; (2) ability to maintain traditional land tenure and governance systems; (3) clean and plentiful water from natural sources on the land; (4) adequate, safe, and well known routes of access and transportation to harvesting areas; (5) an adequate land base within which to pursue seasonal rounds; (6) freedom from competition for access to and harvesting of resources; (7) faith in the quality of country foods and feelings of safety and security on the land; (8) healthy cultural and spiritual relationships with the land; (9) abundant berry, food crops and medicines in preferred harvesting areas; (10) adequacy and access to known and preferred habitation sites on the land; and (11) strong knowledge of land and socio-cultural institutions to pass across generations. iv

6 Cumulative Effects to Date on CSTC Territory From early contact to today, the Crown has imposed decisions that have caused physical changes to the land and CSTC member Nations use of their territories, eroding their way of life and ability to meaningfully exercise their Aboriginal rights. There have been several major drivers of change. First, a large quantity of land in CSTC territory is now held by private land owners and municipalities. Most private land is held in the southern portion of CSTC territory and, in these spaces, Carrier Sekani land tenure and governance systems (e.g., the keyoh system) are not respected by other users or the Crown. Second, much of CSTC territory, especially in its central to southern portion, has been developed for forestry, mining, and other industrial activities. An expansive road network crisscrossing the territory has also been built. Most of the road network in CSTC territory has been developed for forestry activities; forestry related roads alone account for over 32,000 km of linear disturbance in CSTC territory. CSTC territory has been heavily altered from its pre-contact baseline. Much has changed, almost all of it beyond the control of CSTC member Nations and almost all of it to the detriment of CSTC member Nations ability to exercise their Aboriginal rights. There have been significant reductions in wildlife and fish populations. For example, caribou, now listed as a Species at Risk under COSEWIC and SARA, were once abundant throughout CSTC territory, yet have now been extirpated throughout virtually the entire southern half of it. These drivers of change have also caused deforestation and ecosystem fragmentation in CSTC territory. Deforestation has had severe long-term effects across CSTC territory. In combination with climate change and natural variability, forestry practices have resulted in ongoing deforestation, an altered (or brittle) fire regime. Large swaths of forest land have also been destroyed by the Mountain Pine Beetle (MPB) epidemic. In carrying out their cumulative effects assessment, the Proponent and the EAO have vastly underestimated or ignored these changes, and therefore have failed to adequately assess the total effects loading to date on: (i) forest cover/fragmentation and ecosystem fragmentation; (ii) fish and fish habitat; (iii) wildlife numbers, especially moose, caribou and grizzly bear; (iv) use of lands and resources by Aboriginal people for traditional purposes; (v) CSTC member Nations ability to govern their land base; and (vi) Aboriginal title. This historical context and the current state of CSTC territory and its resources must be considered in assessing the seriousness of the Project s impacts (including cumulative effects) on CSTC member Nations Aboriginal rights. Adding in Reasonably Foreseeable Future Developments The Proponent s Project-specific assessment recognizes that its pipeline Project would be likely to cause adverse effects on a variety of VCs, through long linear disturbance, clearing of trees, effects on fish and fish habitat at water crossings, noise, vibration and other sensory impacts, heightened wildlife mortality risks from high traffic loads, and potential accidents and malfunctions, to name just a few potential impacts. However, the cumulative implications of not one but as many as half a dozen similar major construction projects across CSTC territory within the same time frame are not closely examined by the Proponent. For example, six large diameter pipelines have been proposed to be built in CSTC territory between 2015 and Nearly half of the total length of the proposed pipeline v

7 projects occurs in CSTC territory. Applying an appropriately conservative approach to cumulative effects assessment by assuming that all proposed projects will proceed identifies that the following changes will likely occur in CSTC territory: (1) more than 1000 km of right-of-way clearing, construction/disturbance for roads, power lines, ancillary components; (2) hundreds of water crossings, including many major fish-bearing rivers (e.g. Stuart, Nation); (3) clearing of lands for hundreds of ancillary developments like laydown sites; (4) influx of construction workers from construction camps; and (5) operation of all-season access roads, nine compressor stations, and four pump stations. Beyond these six pipeline projects, forestry activities, mining, accidents (e.g. the recent Mount Polley mine spill), new gas developments, and other proposed developments are also likely to expand the total amount of land fragmentation, pressures on wildlife and fish, and land alienation of CSTC territory, with the heaviest reasonably foreseeable future development loads being felt in the southern portion of the CSTC territory, where the Project is proposed. Cumulative Effects on Sufficiency Resources In the author s opinion, based on the available evidence, the Project in combination with past, present and reasonably foreseeable projects and activities will seriously impact at least four resources relied upon by CSTC member Nations to meaningfully exercise their Aboriginal rights: (1) healthy populations of fish and game in preferred harvesting areas; (2) ability to maintain traditional land tenure and governance systems; (3) an adequate land base within which to pursue seasonal rounds; and (4) freedom from competition for access to resources. The first three of these sufficiency resources are already showing indications of having been subject to serious impacts even in the pre-project circumstance. The Project therefore has potential to exacerbate already serious adverse impacts on CSTC member Nations ability to exercise their Aboriginal rights, which could have important adverse impacts on their culture and mode of life. Recommendations This peer review of the CGL CEA and the abbreviated alternative CEA demonstrate the need for the work outlined in the following 6 recommendations: Recommendation 1: A revised cumulative effects assessment of the proposed CGL Project is highly recommended before Crown decisions on whether and under what conditions the Project should be allowed to proceed are made. Special emphasis is required on total cumulative effects loading on wildlife and fish in CSTC territory, other resources that support the CSTC traditional mode of life, and on Aboriginal rights and title. Recommendation 2: The Crown should fund a regional cumulative effects assessment within CSTC territory, including territory-wide and First Nationsspecific sub-components, prior to any irrevocable government decision on the location and number of acceptable LNG-related pipelines. Any such CEA will need to consider biophysical and human environmental VCs and cumulative effects on Aboriginal rights and title. vi

8 Recommendation #3: Revitalize regional land use planning in CSTC territory. Recommendation #4: The Crown should provide adequate funding to all First Nations with potential title impacted by the Project in order to generate appropriate response materials to the EAO s strength of title claims made during the course of this EA. Recommendation #5: The Crown should work with CSTC and its member Nations toward the development of co-management programs with the goals of reestablishing woodland caribou and Nechako White Sturgeon in greater numbers and locations in CSTC territory. Recommendation #6: The Crown should conduct an LNG production system level GHG cumulative effects assessment. vii

9 Table of Contents Executive Summary... iii List of Acronyms Used in this Report... ix Extended Summary... 1 Introduction... 1 Analytical Framework... 2 Report Limitations... 2 About the CSTC, Member Nations and the CGL Project (Section 2 of Main Report)... 3 Gap Analysis of the Proponent s and EAO s Cumulative Effects Assessments (Section 3 of Main Report)... 3 Carrier Sekani Pre-Contact Way of Life and Resources (Section 4 of Main Report)... 7 Cumulative Effects to Date on CSTC Member Nations (Section 5 of Main Report)... 9 The Weight of Recent History: Major Eras of Change... 9 Major Cumulative Effects Causes to Date Major Cumulative Effects Outcomes to Date (Section 5 of Main Report) Reductions in Wildlife Distribution and Populations in CSTC Territory Deforestation and Ecosystem Fragmentation Summary of Cumulative Effects Loading to Date Layering on Reasonably Foreseeable Future Developments (Section 6 of Main Report) Cumulative Effects Contributions of Proposed Pipelines through CSTC Territory Potential for Induced Hydrocarbon Development Activity Other Reasonably Foreseeable Future Developments Summary of RFFDs Cumulative Effects on Sufficiency of Resources for CSTC Member Nations (Section 7 of Main Report) Cumulative effects on sufficiency of resources required to sustain Aboriginal rights Conclusions (Section 8 of Main Report) Recommendations (Section 8 of Main Report) Closure References Cited in the Extended Summary Appendix 1: CV of Alistair MacDonald viii

10 List of Acronyms Used in this Report BC British Columbia BC EAO (or EAO) Bcfd CEA CEAA CGL CGLP CSTC EA EAO EMPR GHG Ha km km 2 KP LNG MPB n.d. PNG Proponent PTP RFFD ROW RSA TEK/TK TLRU TSA VC British Columbia Environmental Assessment Office Billion cubic feet per day (gas) Cumulative effects assessment Canadian Environmental Assessment Agency Coastal GasLink Pipeline Project (proposed by CGLP, a subsidiary of TransCanada Pipelines Ltd.) Coastal GasLink Pipeline Ltd. (or the Proponent) Carrier Sekani Tribal Council Environmental assessment Environmental Assessment Office Ministry of Energy, Mines, and Petroleum Development Greenhouse gasses Hectare(s) Kilometre Square kilometres Kilometre Post Liquefied natural gas Mountain Pine Beetle No date (used in citations) Pacific Northern Gas CGLP Pacific Trail Pipeline Reasonably foreseeable future development Right-of-way Regional study area Traditional (ecological) knowledge Traditional Land and Resource Use Timber Supply Area Valued Component ix

11 Extended Summary of the Main Report *Please note: This is an extended summary of the main report by the author of the same title. The larger report is available from the CSTC. Introduction Alistair MacDonald of The Firelight Group (the author) was retained by the Carrier Sekani Tribal Council (CSTC) to conduct a peer review of the cumulative effects assessment carried out by the Coastal GasLink Pipeline Ltd. (CGLP, or the Proponent) for the proposed Coastal GasLink Project (the Project). In this report, the author: (i) identifies key gaps and deficiencies with the Proponent s cumulative effects assessment; and (ii) sets out an alternative preliminary assessment of potential cumulative effects on the CSTC member Nations Aboriginal rights and interests from the combination of past, present and reasonably foreseeable future developments. Cumulative effects assessment (CEA) data was gathered from the following publicly available documents/sources: The Province s Data Distribution Service; 1 Available Traditional Knowledge (TK) and Traditional Land and Resource Use (TLRU) studies by CSTC and CSTC member Nations; Socio-economic studies from CSTC member Nations related to industrial projects; Fish and wildlife studies; Ethnographic studies; Forestry related analysis and reports (i.e. impacts from Mountain Pine Beetle, etc.); Submissions and academic sources related to other industrial developments in CSTC territory (e.g. mining, road building); and Previous submissions to the Crown stating location-specific or larger territorial concerns, including previous CGL EA submissions by CSTC and member Nations. The author has 11 years of professional experience in relation to environmental assessments. The author s CV is attached as Appendix 1 to this report

12 Analytical Framework For the purposes of this report cumulative effects on Aboriginal rights and title interests are defined as: Cumulative effects from all sources, on land, water, wildlife, fish, and human receptors, which cause or contribute to adverse effects on the ability of CSTC member First Nations to practice their Aboriginal rights, or which impact on their title or other related interests. Following Candler et al (2012), this preliminary assessment of cumulative effects on CSTC member Nations Aboriginal rights adopts a sufficiency of resources approach. This approach holds that at minimum, the full practice of Carrier Sekani culture, mode of life and the above-noted Aboriginal rights reasonably includes, but is not limited to, access to sufficient lands and resources in which the use of resources can be achieved. Sufficient resources refers not only to quantity but also quality, and is evaluated from the perspective of what is required to fulfill not only subsistence requirements, but also cultural needs, and by extension, ecological integrity needs, of the First Nations and the resources they rely upon, now and into the future. Determining what is sufficient encompasses a suite of interconnected tangible and intangible resources that underlie the meaningful practice of Aboriginal rights and exercise of title (see discussion of Section 4). Any negative influence on any of these sufficiency requirements is arguably an adverse impact on CSTC member Nations meaningful practice of Aboriginal rights. Report Limitations The report is a pan-cstc Nation preliminary assessment of cumulative effects, and does not purport to assess cumulative effects on individual First Nations. Detailed assessment of specific First Nation title issues is also beyond the scope of this report. Nothing in this submission should be construed as waiving, reducing, or otherwise constraining CSTC member Nations Aboriginal title, rights, and interests. The professional findings, opinions, and conclusions set out in this report are based primarily on available secondary data. Many of the findings, opinions and conclusions are preliminary: additional data collection and analysis is required to complete a comprehensive CEA in relation to industrial and other anthropogenic (human-caused) effects on the Aboriginal rights and interests of CSTC member Nations. The report focuses on changes to the availability of resources critical to the practice of CSTC member Nations traditional cultural and harvesting activities. As such, the report does not assess cumulative effects on the wage economy or social, cultural or health aspects of CSTC member Nations, though there are likely spin off effects of changes 2

13 on the land to the well-being and quality of life of First Nations that merit further attention through further research (see for example Treaty 8 First Nations Community Assessment Team 2012; MacDonald 2012). Despite these limitations, there is a sufficient basis in the report to support the author s professional findings, opinions, and conclusions about: (i) gaps in the Proponent s CEA; (ii) total cumulative effects loading on the CSTC member Nations Aboriginal title, rights, and interests; and (iii) the need for additional CEA in CSTC territory. As described further in discussion of Section 8, the limitations of this report should be addressed by requiring the proponent to work with the CSTC member Nations to carry out a more appropriate and detailed CEA before any decision is made about whether an EA Certificate should be issued for the Project. In addition, it is urgent for the Crown to expedite a regional CEA in CSTC territory. About the CSTC, Member Nations and the CGL Project (Section 2 of Main Report) The CSTC is a non-profit society that works to serve the general collective interests of seven First Nations, including the Ts'il Kaz Koh (Burns Lake Band), Nadleh Whut'en First Nation, Nak'azdli Band, Saik'uz (Stoney Creek) First Nation, Stellat'en First Nation, 3

14 Figure 1: Carrier Sekani First Nations Territory and the CGL Project 1

15 Takla Lake First Nation, and Tl'azt'en Nation. 2 CSTC member Nations claim title to 79,000 square kilometers (km 2 ) in central British Columbia. Figure 1 on the previous page shows the extent of this territory, the primary residential reserves for each member Nation, and the proposed route of the CGL Project. CGLP, 3 a subsidiary of TransCanada Pipelines Ltd (TCPL), is seeking approval to construct and operate a 650-kilometre, 48-inch (NPS 48) (1,219 mm) diameter natural gas pipeline from Groundbirch, BC, to a proposed liquefied natural gas (LNG) export facility near Kitimat, BC. The proposed right-of-way (ROW) would require clearings ranging in width from 60 metres in relatively flat areas up to 100 metres where temporary workspaces are required; vegetation control will be conducted to keep a narrower ROW clear of trees for the life of the Project (minimum years). The Project also includes the construction and operation of compressor stations and associated above-ground facilities. Three compressor stations (at KP250, 4 330, 418) and a metering station (at KP299) are proposed in CSTC territory. The Project would require a variety of ancillary infrastructure during construction, such as access roads, temporary bridges, stockpile sites, borrow sites, contractor yards and construction camps. The Project would have an initial capacity of approximately 2 to 3 billion cubic feet per day (bcfd), with potential for expansion up to 5.0 bcfd. 5 Construction of the proposed Project is expected to extend over a three year period. An estimated 800-1,200 workers with various skill sets will be required on each construction spread during the construction period (CGLP 2014, Appendix 2N). The Project would directly intersect five CSTC member Nations' traditional territories: Nadleh Whut'en kilometre post (KP) to KP Nak'azdli - KP to KP Saik'uz - KP to KP Stellat'en - KP to KP Ts'il Kaz Koh (Burns Lake Band) - KP to KP Overall, the Project is proposed to transect at least 232 km of CSTC territory, representing approximately 36 per cent of the length of the proposed pipeline. The Project would be located in the southern portion of CSTC territory, an area already subject to relatively high levels of industrial development, land privatization, and 2 An eighth CSTC member, the Wet suwet en First Nation, shown in Figure 1, was not included in the scope of this study due to data constraints. 3 Unless otherwise noted, all Project-specific information is from CGLP (2014). 4 All KP (kilometre post) markers are from CGLP 2014, Appendix 2M. 5 This pipeline would thus represent a significant increase in the total pipeline transmission capacity in BC. By way of comparison, in , BC s total gas production averaged 3.5 bcfd (NEB 2013). 1

16 landscape fragmentation (see discussion of Section 5 below). In addition, it would run in relatively close proximity to the existing Pacific Northern Gas (PNG) gas pipeline, the proposed PNG Looping and Pacific Trail gas pipelines, and the proposed Enbridge Northern Gateway bitumen (heavy oil) and condensate pipeline system (see Figure 7 in discussion of Section 6). 2

17 Gap Analysis of the Proponent s and EAO s Cumulative Effects Assessments (Section 3 of Main Report) In the absence of adequate guidance from the BC EAO on CEA (in general, let alone in relation to Aboriginal interests ), the author canvassed the available CEA literature to identify appropriate principles for meaningful conduct of CEA (e.g. Noble 2013, 2014; Hegmann et al 1999; Duinker and Greig 2006; Rees 1995). Ten principles were identified against which the adequacy of the Proponent s CEA was assessed. Table 1 overleaf identifies the results. In summary, in the author s opinion, CGLP s findings regarding cumulative effects of the proposed Project in combination with other past, present and reasonably foreseeable future developments on any and all of the CSTC member First Nations traditional land and resources use (TLRU) and by extension practice of Aboriginal rights and exercise of Aboriginal title are premature, lack input from the First Nations themselves, are not supported by compelling and in some cases, any meaningful evidence, 6 and reflect inadequate adherence to widely recognized principles of CEA good practice. The author also reviewed the EAO s treatment of cumulative effects in its September 12, 2014, draft Assessment Report and found similar gaps that render the CEA impotent (Duinker & Greig 2006). They include: Acceptance of the Proponent s Project contribution CEA model; A regional CEA focused on First Nations traditional territories is not adopted; A meaningful CEA is not conducted on TLRU or Aboriginal rights; The evidence base for Project-specific and cumulative effects on Aboriginal title are tenuous and have not been subject to consultation with First Nations; Regional trends in fish and wildlife status are not considered adequately; The EAO never entertains the possibility that Aboriginal rights and title may already be seriously/significantly impacted or constrained, and offers no thresholds against which to assess cumulative effects on TLRU or Aboriginal rights; Even though finding a significant cumulative effect on caribou (a sufficiency resource), inadequate mitigation is proposed to reduce the impact below the level of significance; and The EAO s approach to describing title does not adopt the Tsilhqot in 7 decision s sufficiency of occupation approach, which requires culturally appropriate methods to consider the elements that contribute to carrying capacity. The EAO finds no significant adverse cumulative effects on TLRU or Aboriginal interests. 6 CGLP made no effort to directly assess cumulative effects on CSTC member Nations Aboriginal rights. 7 Tsilhqot in Nation v. British Columbia, 2014 SCC 44, accessed from 3

18 Table 1: CGLP s Adherence to Principles of Good CEA Practice Principle CGLP s CEA Gaps 1. CEA must be conducted at the proper scale. For example, CEA on TLRU and Aboriginal rights needs to consider whole traditional territory. 2. CEA must be in the proper context reflective of the values and valued components (VCs) of the affected parties. 3. Cumulative effects must be measured against an appropriate temporal back cast a pre-disturbance baseline context. 4. The scope of a CEA must consider all past, present and reasonably foreseeable change agents impacting on VCs. CEA conducted primarily at length-of-pipeline level, and with biophysically defined regional study areas not extending at any point beyond 30km from the proposed Project ROW. No effort is made to document the baseline or trends in disturbance for habitat and wildlife populations at the regional level within CSTC territory. CGLP s 2014 Application includes extremely limited background information on Carrier Sekani or any First Nations values, either in the main body text (especially Sections 16 and 23) or in Appendices 2M and 2N (Social and Economic Technical Reports, respectively). No historic cultural data is provided. No to very minimal description of First Nations mode of life and the governance systems, land tenure and resources it relied upon. Information submitted by CSTC member Nations to the Proponent re: these attributes was largely ignored. 8 Virtually no historic data collected on CSTC member Nations. Proponent cites currently accepted practice (CGLP 2014, B- 27) to ignore pre-contact baseline. No consideration provided of factors leading to change over time in exercise of Aboriginal rights and title among CSTC member Nations, despite readily available documentation of negative impacts of same by multiple industrial projects and government policies. No consideration of cumulative effects loading on Aboriginal people within their own territories, including Traditional Land and Resource Use (TLRU) and Aboriginal rights. No assessment of fish or wildlife at the regional and/or stock level. No characterization of CSTC member Nations values, worldview, history and priority VCs. There is no indication that any aspect of the Proponent s CEA considered history, mode of life and values of any affected First Nations, despite this information being readily available in publically accessible documents. Resources required for conduct of Aboriginal rights appear largely limited to availability of some amount of wildlife and fish somewhere ; this is not realistic. No calculation of pre-disturbance / pre-contact baseline for any VCs, including especially wildlife status and Aboriginal rights practices. Wildlife status data doesn t have adequate time depth or stock specificity. Given the lack of serious consideration of historic impacts to date (the past part of CEA), no causal factors for changes in CSTC territory are characterized. Impacts of Government policy are ignored totally. 8 For example, traditional land use studies and socio-economic impact assessment reports that included a variety of historic, cultural, mode of life and land tenure/governance information, were filed with the Proponent by a variety of CSTC Nations (e.g., Sharp 2014; The Firelight Group 2014). Subsequently, CSTC Nations have raised concerns that the information was not used by the Proponent to inform its effects assessment, either Project-specific or cumulative. 4

19 Principle CGLP s CEA Gaps 5. CEA must focus on total effects on VCs over time, not merely the individual Project likely contributions. 6. CEA must look to change over time and trends in VCs. 7. Multiple VCs and indicators may need to be assessed in combination to understand total cumulative effects loading 8. Thresholds of acceptable change must be defined and agreed upon by all affected Parties. CGL adopted a Project contribution approach to CEA. This leads to inappropriate findings. For example, despite the fact that caribou populations affected by the proposed Project are already beyond a threshold that precludes the meaningful practice of Aboriginal right to harvest, cumulative effects are characterized as insignificant due to a focus on Project contribution. Minimal time depth provided on virtually all VCs. For example, contextual analysis of regional moose and caribou declines are extremely limited. CGLP primarily uses a biophysical proxy to assess effects on Aboriginal interests Multiple sufficiency resources ignored. Lack of consideration of linkages between VCs and multiple cumulative effects causing agents on individual VCs or key indicators (e.g., multiple impacts on salmon stocks across their entire life cycle range). Some limited number of wildlife thresholds identified. However, even some of the VCs most vulnerable to cumulative effects of pipelines do not adopt a threshold (e.g. grizzly bears, caribou). Adoption of a Project contribution focus to the cumulative effects assessment may in fact mask total effect loading on the health of VCs. No calculation of weight of recent history on CSTC TLRU or Aboriginal rights whatsoever. No calculation of total effects on wildlife, fish, forests or available land for CSTC Aboriginal rights practice. Lack of quantitative analysis of effects across many VCs. Extremely minimal trend-over-time data on VCs relevant to Aboriginal rights (e.g., land fragmentation, forest loss, wildlife and fish species status) are provided. For example, the role of landscape disturbance in the precipitous decline in recent years of Omineca region moose populations and the extremely tenuous status of affected caribou populations critical context for any CEA - are largely ignored. Proponent conducted no cumulative effects assessment on Aboriginal rights, and a very narrow CEA on TLRU. No assessment conducted re: sufficiency of resources for meaningful practice of Aboriginal rights. Biophysical VCs (wildlife) used as an inappropriate, inadequate proxy for all resources required for meaningful Aboriginal rights practices to occur. Thresholds of acceptable change relevant to CSTC territory are not defined for any VCs or indicators. The CGL EA identifies a baseline [for riparian loss and fish mortality] in the Nechako and Fraser watersheds that is substantially impaired, and that the impairment will become substantially worse over time, but no redress of the matter is contemplated and the implications largely ignored. 5

20 Principle CGLP s CEA Gaps 9. CEA must entertain the possibility that there are already pre-project significant adverse impacts in existence. 10. CEA merits the same type of effort and rigour as Projectspecific assessment. No estimation is provided of whether any VCs have already exceeded, in the pre-project circumstance, a threshold of significant adverse effects. This is especially disconcerting for caribou, grizzly bear, Nechako White Sturgeon, some declining salmon runs, and TLRU, all linked to Aboriginal rights. Intra- CSTC region wildlife significance status not considered. No CEA on Aboriginal rights or title. Short evidence poor and qualitative assessment of cumulative effects on TLRU. This possibility of pre-existing significant adverse effects is never entertained by CGL, even for caribou, let alone for other values such as land availability for Aboriginal rights practices, specific fish species (e.g., Nechako White Sturgeon), or other CSTC member Nations sufficiency resources. The Proponent also neglects to consider the possibility that regional wildlife declines have already diminished to the point where Aboriginal rights cannot be exercised meaningfully (Toth & Tung 2014), a pre-existing serious constraint on Aboriginal rights. CGLP conducted no CEA on Aboriginal rights, inadequate CEA on TLRU, and no First Nations territories-specific CEA on any biophysical VCs. Neither the Proponent nor EAO adopted such a multi-attribute sufficiency of resources approach for CSTC member Nations (or any First Nations) in their cumulative effects assessments, rendering their CEA s inadequate for the purpose of assessing rights and title issues, as well as traditional land and resource use (TLRU) considerations. While it is beyond the scope of this report to conduct a fulsome CEA to fill these many gaps, this analysis indicates that what is still required and not yet complete in this EA is a robust examination of pre-existing conditions and trends in the lived experience of the CSTC member Nations to establish a pre industrial/pre-contact baseline, track changes in VC health over time to establish a current, damaged baseline, estimate whether there are any pre-existing significant adverse effects on use of lands and resources for traditional purposes and other VCs, and conduct of an appropriately scoped CEA that includes reasonably foreseeable development, including Project-induced, development. Starting with Section 4, this report attempts to fill some of these gaps, specific to CSTC territory and CSTC member Nations rights. 6

21 Carrier Sekani Pre-Contact Way of Life and Resources (Section 4 of Main Report) Establish VCs and indicators (Section 4) Establish precontact baseline status (Section 4) Identify change agents over time (Section 5) Identify total effects loading to date (Section 5) Add reasonably foreseeable future developments (Section 6) Combine for a more realistic portrait of cumulative effects (Section 7) In both the CGL Application (CGLP 2014) and the EAO s (2014) draft Assessment Report, there is no recognition of the CSTC member Nations mode of life. There is, in its place, a generic recognition only that First Nations along the entire length of the pipeline continue to hunt, trap, fish and gather from traditional territories, and value gathering and spiritual sites. Values, land tenure and governance systems of different First Nations culture groups are not recognized or integrated into the assessment. This, despite the fact that these modes of life these culture group-specific values, land tenure systems and governance models - underlie and define the very Aboriginal rights the EA Proponent and the EAO are purporting to assess. It is as though the CSTC member Nations very complex and culture group specific mode of life, land tenure and governance system, and culture never existed, or is one and the same with other, very distinct First Nations culture groups along the path of the proposed Project. In contrast, a closer reading of CSTC member Nations history reveals something more; something distinctive and important to understand when assessing the effects of change over time on a people. Prior to contact, the CSTC member Nations' ancestors relied - effectively entirely - on their large land bases and ample biophysical resources for sustenance and survival. This mode of life on the land, which in more recent days has been translated to the language of Aboriginal rights, was guided by an intricate set of values and rules designed to maintain adequate resources on the land for continued long-term survival. With these resources in place, oral and written histories tell us that families and communities could not just survive but thrive, generating surpluses for trade and sustaining large populations. Carrier and Sekani people living in what is now CSTC territory had a huge land base, abundant resources to harvest, and intimate traditional knowledge of where, when and how to harvest without reducing their future bounty. This strong economic base was governed by a widely understood, acknowledged and complex set of rules, with a strong emphasis on defined land tenure and governance. Land tenure was held in keyohs, extended family land bases. Values of the First Nations people focused on protecting the land and its resources, sharing in time of need, and conserving for the future. It is these VCs and indicators - the resources required to continue the CSTC mode of life that should be the focus of any CEA on Aboriginal rights. From the Carrier Sekani perspective, based on analysis of historic to current documentation of the Carrier Sekani worldview, mode of life, and governance systems (Section 4 in the Main 7

22 Report), resources that underlie the meaningful practice of Aboriginal rights and exercise of title include: Healthy populations of fish and game in preferred harvesting areas; Ability to maintain traditional land tenure and governance systems; Clean and plentiful water from natural sources on the land; Adequate, safe and well known routes of access and transportation to harvesting areas; An adequate land base within which to pursue seasonal rounds; Freedom from competition for access to and harvesting of resources; Faith in the quality of country foods; Healthy cultural and spiritual relationships with the land, including healthy connection to and adequate protection of and respect for spiritual and historic use/gathering sites; Abundant berry, food crops and medicines in preferred harvesting areas; Adequate experience of remoteness and solitude on the land; Adequacy of and access to - known and preferred habitation sites on the land; Feelings of safety and security on the land; High levels of traditional knowledge of specific locations and ability to pass this knowledge on across generations; A relatively unchanged and well known visual landscape; A relatively natural non-visual sensory environment, including smell, taste, and noise sensory conditions; Reasonable access to land and resources accessible within constraints of time and cost; and Retention of traditional socio-cultural institutions for sharing and reciprocity. It is through the lens of these sufficiency resources that the author s alternative preliminary consideration of total cumulative effects loading on CSTC Aboriginal rights and related interests was conducted. 8

23 Cumulative Effects to Date on CSTC Member Nations (Section 5 of Main Report) Establish VCs and indicators (Section 4) Establish precontact baseline status (Section 4) Identify change agents over time (Section 5) Identify total effects loading to date (Section 5) Add reasonably foreseeable future developments (Section 6) Combine for a more realistic portrait of cumulative effects (Section 7) The Weight of Recent History: Major Eras of Change The physical land base of the Carrier and Sekani peoples has experienced extensive change since the late 18 th century (CSTC n.d.). From early contact to today, Crown-imposed decisions have caused physical changes to the land and day-to-day use of member Nations territories, leading to a cumulative erosion of the Carrier Sekani s ability to practice their way of life and Aboriginal rights. These changes can be characterized by four eras: 9 1. ( ) Early contact and fur trade brought social, economic and cultural changes, and early Crown assertion of control over land governance. Gold rushes in the mid-tolate 1800s brought more non-aboriginal settlers and transportation ties. Even these early incursions irrevocably disrupted the Carrier way of life (Ministry of Attorney General 2009, 20). Settler presence and demand for resources contributed to the start of a severe decline and shift in a dietary mainstay the caribou. Caribou, which had historically travelled widely across Sekani and Dakelh country, had largely disappeared from the Stuart Lake basin by the late 1850s (NWFN 2008, 20); 2. ( ) Crown-permitted alienation of Carrier Sekani from land without compensation or consent through early non-aboriginal settlement, agriculture, and industry. This era is marked by deepened settler presence and aggressive federal and provincial government pursuit of control over most aspects of Carrier Sekani people s lives. Central cultural practices (e.g., Bahl ats) were banned, traditional governance rejected by the Crown, and residential schools set up. Carrier and Sekani families were further devastated by colonial diseases that raged between the mid-1800s and early 1900s. These early and ongoing incursions led the Carrier and Sekani people to seek out the Crown and secure their most valuable places from intrusion. Even by this time, however, the land they claimed was often already alienated, purchased, pre-empted and, therefore, no longer available for reservation (Ministry of Attorney General 2009, 39).These factors increasingly alienated the people from the land, their governance approach and their way of life; 3. ( ) Large-scale industrial development dramatically altered the integrity of lands, reinforcing and expanding the geographic scope of earlier alienation through major biophysical environmental changes, reducing healthy forest cover, ecosystems, and wildlife populations. This middle part of the twentieth century resulted in the creation of an industrial resource frontier in CSTC territory through railway-building,

24 logging, saw-milling, mining, and farming alongside the widespread introduction of wage labour [and] a further destabilizing of traditional self-government through several factors, including movement of people into central settlements, dramatic reduction in salmon run reliability, 9 and alienation of land through allocations to non-aboriginal farmers, transportation routes, logging, and mining. (Brown 2002, 36) 4. (1991 to present) Continued Crown-permitted incursions on Aboriginal rights and the resources, despite increasing evidence that demonstrates the cumulative weight of past changes and a growing assertion of rights by CSTC and member Nations. The largest impact on forested lands and the forestry industry since the 1990s has been the mountain pine beetle (MPB) outbreak, but forest practices and mining exploration and development have played their part in continued accumulation of cumulative effects. Forestry remains the dominant land use in the area though other industries are growing and the area is diversifying. There has also been extensive mining activity in the Takla Lake, Fraser Lake and Nak azdli areas. Major Cumulative Effects Causes to Date Among the major factors causing cumulative effects on CSTC member Nations Aboriginal rights and title interests to date are: A radical reduction in Carrier Sekani control over land tenure (e.g., only 0.18 per cent of CSTC territory is held in First Nations reserves, some 26 times less land than is held by private and municipal interests). Most of these privatized lands are in the southern portion of the territory, meaning that southern CSTC member Nations (Nadleh Whut en, Saik'uz, Nak azdli, Stellat en, and the Ts il Kaz Koh (Burns Lake Band)) have already seen large portions of their land base alienated from Aboriginal rights practices. Carrier Sekani land tenure and governance systems (e.g., the keyoh system) are given little to no credence by other governments. Only a small portion of the land base is subject to the type of protections required to maintain healthy and resilient ecosystems. Less than 12 per cent of CSTC territory has any formal protection. Much of the CSTC land base has been subject to a wide array of tenure arrangements between the Crown and private sector companies, for forestry (in particular), mining, and other industrial activities, many of which have led to deforestation and other adverse effects on area lands, waters, wildlife and by extension, Aboriginal rights practices. Forestry activities have played one of the greatest land alteration roles. Figure 2 shows areas logged as of Figure 3 identifies areas logged in CSTC territory between 1900 and Multiple factors reduced the size and reliability of the salmon runs, which were estimated historically to provide up to 50 per cent of total annual food sources for some Carrier groups (Tobey 1981, 417), including increased commercial fishing for Fraser salmon, the 1913 Hell s Gate closure, and 1953 s Kenny Dam altering the flow of the Nechako River. 10

25 Figure 2: CSTC Territory Logged as of Unless otherwise noted, all figures showing geospatial data in this report are from BC s Data Distribution Service

26 Figure 3: Portion of CSTC Territory Logged between 1900 and

27 Over 1.08 million hectares (10,800 km 2 ), have been subject to logging activities during this time period, with logging s spatial extent growing almost 50 times larger than at the turn of the 20 th century. These forestry activities increased rapidly in scale and geographic extent between 1950 and the present day. Often, the logging technique used has been clear cutting, removing large patches of trees from the ecosystem, which has been associated with a multitude of adverse effects on vegetation, soil, wildlife, fish and water bodies. As shown in Figure 3, logging has been extensive throughout much of CSTC territory. In addition to forestry, other anthropogenic changes have also contributed to land fragmentation, wildlife reductions, and serious constraints on practicability of CSTC member Nations Aboriginal rights throughout much of their territories. First and foremost, industry requires roads. Figure 4 provides a portrait of the status of the road network in CSTC Territory at this time. 11 The road network, much of it developed in support of forestry (primarily) and access to other resource sectors (e.g., mining), extends across the vast majority of CSTC territory. Forestry-related roads alone account for over 32,000 km of linear disturbance in CSTC territory. Roads, like pipelines, are long linear disturbances that not only cause increase habitat fragmentation, clearing of forested areas, and mortality/morbidity effects on wildlife, but can have a can opener effect opening up new areas to harvesting competition and access by commercial interests to other extractable resources. Among these extractable resources are a multitude of minerals. CSTC territory is geologically rich. As Figure 5 shows, mining claims, exploration, development and production activities are also extensive across much of CSTC territory, with heaviest tenure and activities in the western and central-north portions. A variety of small- to large-scale mines have operated (e.g., Kemess South, Bralorne-Takla, Ogden Mountain), continue to operate (e.g., Endako, Mount Milligan, Huckleberry), or are proposed (e.g., Blackwater, Kemess Underground) in or near CSTC territory. Mines can have impacts on CSTC territory, as in the case of the Mt. Polley disaster. On August 4 th, 2014, the tailings pond dam at the Mt. Polley dam breached, releasing about 10 million cubic meters of water and 4.5 million cubic meters of fine sand into Hazeltine Creek, Quesnel Lake and Polley Lake. Investigations are ongoing about the cause and remedy to the failure. The impacts of this tailings breach on country food confidence, salmon health and reproduction, as well as on the watershed are unclear to date, but have heightened already high concerns about country food quality and quantity among many Fraser River sockeye dependent First Nations. Mining development requires access roads, tailings ponds and dams to store polluted water, and blasting or drilling into rocks. These effects and the deforestation that precedes them contribute to the disruption and pollution of waterways, destruction of plants, disruption of hunting and gathering patterns, and reduction and fragmentation of animal habitat (IHRC 2010). 11 It is important when viewing maps of linear disturbance to recognize that the line width required to show a road on a map of this scale, is artificially inflated in size by orders of magnitude. In other words, the lines on Figure 4 are accurate as to location and extent of the network of roads in CSTC territory, but are not accurate re: the width of these roads. 13

28 Figure 4: Road Network in CSTC Territory 14

29 Figure 5: Mining Projects and Tenure in CSTC Territory as of

30 There are also a variety of other tenures over and above forestry, mining and roads in CSTC territory. They include utilities ROWs and a variety of other rights let by the government to public and private sector interests. They cover substantial portions of the southern portion of CSTC territory. As with mining claims, not all the land base in a tenure is typically cleared or otherwise altered. Nonetheless, each interest let out to a third party represents the potential to alter the land base, constrain activities thereon by First Nations, and further fragment and alienate traditional territory. The nature and type of work varies, in each case, and while some involve placement of buildings, right-of-ways, and land clearing. A variety of these tenures are included in Figure 11 of this report when looking at total cumulative effects/land alienation. 16

31 Major Cumulative Effects Outcomes to Date (Section 5 of Main Report) Establish VCs and indicators (Section 4) Establish precontact baseline status (Section 4) Identify change agents over time (Section 5) Identify total effects loading to date (Section 5) Add reasonably foreseeable future developments (Section 6) Combine for a more realistic portrait of cumulative effects (Section 7) Reductions in Wildlife Distribution and Populations in CSTC Territory 17 Cumulative impacts brought on by industrial development and settlement have drastically altered the territories in a fraction of the time that the Carrier Sekani have inhabited this region. (CSTC 2006, 12) The CSTC member Nations land base has been fragmented in many different ways since contact, primarily through forestry, but also through awarding licenses and tenures to private and municipal landowners, to mining and exploration companies, and to other interests. Subsequent land clearing and habitat fragmentation has had a keen effect on the species that are depended on by CSTC member Nations for Aboriginal rights practices, in particular caribou. Given their extreme vulnerability to industrial disturbances, caribou, a Species at Risk under the federal Species at Risk Act, can be seen as a mammalian version of a canary in the coal mine, declines in which can be seen as an early warning sign of substantial to significant adverse effects on an ecosystem. In the pre-contact era, as reported through oral history, the Southern Mountain Population of caribou resided throughout virtually all of CSTC territory. While some caribou are still resident in the relatively undeveloped and mountainous northern portion of CSTC territory and in the far west, caribou have been extirpated from virtually all of the southern portion of CSTC territory, according to data from Environment Canada (2011). The southern areas of CSTC territory where caribou have been extirpated correspond closely with the areas of highest intensity of industrial development, land tenure letting by the Crown, and road density. Caribou are not the only species facing significant downturns in abundance and distribution in CSTC territory. CSTC member First Nations have raised a variety of concerns about the declining abundance, changing distribution, and faltering individual and population health status of wildlife and fish species they have been reliant upon since time immemorial for subsistence and other values, throughout CSTC territory, over a long period of time (see for example CSTC 2006; NWFN 2008; Sharp 2014; Daiya-Mattess Forest Group 2011). Research on regional fish and wildlife stock status on behalf of CSTC (Toth & Tung 2014), suggests that the ecological integrity of the CSTC territorial land base and resources are currently severely compromised (emphasis added). Toth & Tung (2014) go on to characterize the existing level of impact on CSTC Aboriginal rights of these wildlife declines, suggesting the following:

32 Sockeye and Chinook harvesting rights are severely constrained due to diminished abundance and restrictive regulation; Coho salmon and Nechako White sturgeon harvesting rights are severely constrained to the point where the right can no longer be meaningfully exercised ; Lake trout (char) harvesting rights are constrained in some lakes; Caribou harvesting rights are severely constrained to the point where the right can no longer be meaningfully exercised ; Moose harvesting rights (the ostensible replacement for caribou) are seriously constrained due to limited abundance; and Grizzly bear harvesting rights are seriously constrained due to limited abundance and sustainability issues. Together, these species make up the vast majority of country food production and consumption among CSTC member Nations. Their continued decline is a food security as well as an Aboriginal rights issue. Neither CGLP s Application nor the EAO s draft Assessment Report examines these intraregional population decline concerns within Carrier Sekani member Nations territories. Deforestation and Ecosystem Fragmentation Declining wildlife and fish numbers are part of a bigger picture of land alienation and loss of resources critical to meaningful practice of CSTC member Nations Aboriginal rights. For example, they are linked to and compound potential rights constraints issues related to deforestation in CSTC territory. To practice their traditional mode of life, First Nations need among other resources a large land base alongside abundant and healthy food sources. Previous mapped data showed the forestry effects on the CSTC territorial land base, spreading from almost nothing in 1900 to covering large portions of the landscape in the present day. Most of this forestry activity occurred after In addition, road building (Figure 4), land privatization, and mining (Figure 5), along with the tenured activities of multiple other industries, have cleared and otherwise fragmented and impacted forested ecosystems relied upon by CSTC members to practice their mode of life on the land. In recent years, climate change, an altered fire regime, 12 the Mountain Pine Beetle (MPB) epidemic and associated aggressive harvesting practices have in combination with previous industrial activities already entrenched across CSTC territory led to substantial to significant forest loss. CSTC territory has been subject to some of the highest rates of forest loss in BC since The MPB epidemic, which has killed millions of trees in CSTC territory since the mid-1990s, has been a major driver. The wide extent of impacts of the MPB, along with recent forestry activities, on the forested land base in CSTC territory is shown in Figure Nikiforuk (2011, 59-60) suggests that after foresters started to suppress fire to protect the province s timber wealth, the volume of mature lodgepole [pine] increased to 53 percent by 1990, up from a more natural 17 percent in the early 1990s, making it more vulnerable to attack. 18

33 Figure 6: Extent of Mountain Pine Beetle Outbreak in CSTC Territory (with logging data 1990 to 2013) 19

34 Summary of Cumulative Effects Loading to Date Neither the CGL Application nor the EAO s draft Assessment Report material go into any detail regarding total cumulative effects loading on CGL member Nations Aboriginal rights to date. In contrast, the author s findings are that over the past 200 years, and accelerating rapidly in the past half-century, cumulative effects in many forms and from many sources (almost all beyond the control of CSTC member Nations) have impacted heavily on many of the resources relied upon by CSTC member Nation to practice their traditional mode of life. Cumulative effects in CSTC member Nations territories already include the legacy effects of the fur trade, colonial policy and residential schools, agriculture, in-migration, road development, forestry, hydrocarbon pipelines, hydro-electric power generation, mining, and other anthropogenic change-causing agents such as the historic and ongoing socio-economic marginalization of First Nations. Also influential in the cumulative effects on CSTC member Nations are the imposition of the registered trapline system, wildlife management policies, the reserve system, and other government regulations and policies prejudicial to the interests of CSTC member Nations. These impacts are not in the past; they are still being felt today. What do these cumulative effects to date mean on the ground in terms of day-to-day life for CSTC member Nations? The following repercussions have been identified: Governance and land tenure by CSTC has been reduced from across the entire land base of over 78,000 km 2, to small reservations governed jointly with the federal government (some 0.18% of the total land base); Some wildlife and fish species have been regionally extirpated. Others are subject to long-term decline, reducing available harvestable resources and constraining Aboriginal rights practices; Large areas of forest have been removed, reducing the amount of the landscape in a natural boreal forest condition; A large amount of roads and other linear disturbances have expanded the speed and range of transportation through the territory, while also contributing to the fragmentation of ecosystems and pressures by harvesters on wildlife resources; New chemicals and other risks have been introduced on the land and waters, reducing faith in country foods and perceived safety by Aboriginal people in traveling through what was once considered a pristine landscape; Multiple factors have reduced time on, breadth of travel across, and success of harvesting on, the land for Aboriginal peoples; An entirely new and foreign social, economic, cultural and governance system has been superimposed on CSTC member Nations; and Very limited economic opportunities and high vulnerability to economic fluctuations in resource economics have been the inadequate compensatory legacy for most CSTC members and Nations. CSTC members are subject to high unemployment, low incomes and weak educational attainment in the new economy imposed on their territory. 20

35 The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), 13 calls for free, prior and informed consent of indigenous peoples for projects proposed on or through their traditional territories. Most if not all of the incursions described herein have never been subject to free, prior and informed consent. Meanwhile, they have measurably reduced the ability of keyoh holders and their members to exercise their Aboriginal rights and traditional land tenure and management rules and systems. In summary, CSTC territory is not the same as it ever was in the pre-cgl Project condition. Much has changed, almost all of it beyond the control of CSTC member Nations and almost all of it to the detriment of CSTC member Nations Aboriginal rights and title interests. The highest rates of change occur in south to central CSTC territory, the area through which CGL is proposed, along with a variety of other large linear pipeline projects discussed in Section 6. That these basic facts are not recognized in the CEAs of either CGLP or the EAO is a major gap in the credibility and confidence that can be held in their predictions of impacts on TLRU, Aboriginal rights and title

36 Layering on Reasonably Foreseeable Future Developments (Section 6 of Main Report) Establish VCs and indicators (Section 4) Establish precontact baseline status (Section 4) Identify change agents over time (Section 5) Identify total effects loading to date (Section 5) Add reasonably foreseeable future developments (Section 6) Combine for a more realistic portrait of cumulative effects (Section 7) While the CGL Application included a fairly extensive list of reasonably foreseeable future developments (RFFDs), including expected forestry activities up to 2019, it did so only within a severely constrained regional study area (RSA - maximum 30 km radius from the CGL ROW). Cumulative effects on Aboriginal land use and Aboriginal rights practices (following Noble 2014) should be assessed at the territorial level the method used here. Cumulative Effects Contributions of Proposed Pipelines through CSTC Territory Figure 7 shows the proposed routing of six different potential large diameter pipelines through CSTC territory to the BC coast, current as of fall They include: CGLP s Coastal GasLink, a 650 km natural gas line; Pacific Northern Gas PNG Looping, a 525 km natural gas line; Chevron Canada s Pacific Trail Pipeline, a 480 km natural gas line; TransCanada Pipelines Ltd. s Prince Rupert Gas Transmission, a 780 km natural gas line; Spectra Energy s Westcoast Connector Gas Transmission Project, a 854 km natural gas line; and Enbridge s Northern Gateway Pipeline, an 1150 km joint heavy oil (bitumen) and condensate pipeline from Alberta. All of the proposed pipelines have construction timelines within a narrow window. Any combination of two or more of them proceeding would likely see substantial changes in the human and biophysical environment in CSTC territory. If, as per good practice of cumulative effects assessment, a conservative approach is adopted and it is assumed that all of these reasonably foreseeable Projects will proceed, the following changes would occur within CSTC territories alone: 14 As with Figure 4 on roads, the ROW widths in Figure 7 are not to scale, appearing larger on the map than in reality. 22

37 Figure 7: Existing and Reasonably Foreseeable Pipeline Projects in CSTC Territory 23

38 Over 1500 km of pipeline ROW of between 40 and 100 metres will be cleared. This represents well over a third of the total length of the proposed projects, making CSTC territory the epicenter of the BC Government and industry s plans to get hydrocarbons from BC and Alberta transported to the BC coast to fuel the Asian market; Hundreds of water crossings, including across many major fish bearing rivers (e.g. Stuart, Nation); The clearing for, construction of, and operation of as many as eight major pipelines in CSTC territory (six sales gas pipelines, one bitumen and one condensate); Potentially thousands of kilometres of additional linear disturbance, including pipeline ROWs, roads, and power lines; Extensive additional land clearing for the combined projects for hundreds of ancillary facilities such as laydown sites; Probable First Nation permanent alienation (more than one generation of loss being effectively permanent in relation to traditional use alienation) along each ROW; Substantial indeed significant 15 GHG emissions, primarily from compressor stations during operations, contributing to climate change; A variety of construction camps and several thousand construction workers in CSTC territory for extended time periods, the vast majority from outside the region and non- Aboriginal; and The construction and operation, including required all-season access roads and extensive land clearing, to nine compressor stations and four pump stations. Of particular and immediate concern in relation to the CGL EA is that no less than four of the six proposed pipelines would transect the already heavily impacted landscape of the southern portion of CSTC territories - the lands of Nak azdli, Nadleh Whut en, Saik uz, Stellat en, and Ts il Kaz Koh (Burns Lake Band). The types of impacts each developed pipeline are likely to cause in CSTC territory include, but are not limited to, the following: Effects on wildlife Removal and fragmentation of habitat Changes in sight lines for predators, increasing pressure on wildlife populations Increased access routes for hunters, increasing pressure on wildlife populations Larger number of hunters due to pipeline worker in-migration Increased traffic and wildlife mortality from collisions with vehicles Degradation of remaining habitat through noise and other sensory disturbances Increased contamination of wildlife and their food supply from emissions Changes in population dynamics as disturbance-intolerant species decrease in number Effects on habitat and vegetation Removal of vegetation, potential for invasive plant establishment, and changing hydrologic conditions 15 The EAO s (2014) draft Assessment Report finds the CGL Project alone will contribute significant GHG emissions. 24

39 Reduction in forested landbase and in age and health of remaining forest Reduction of plant and ecosystem diversity Contamination of plants during construction, operations (especially around compressor stations) and in failure modes Increased risk of a large wildfire in a failure mode, especially due to current MPB conditions Effects on air quality and climate Production of greenhouse gases, contributing to climate change Localized adverse air quality effects, including increased emissions of volatile organic compounds and sensory disturbance to First Nations harvesters Effects on water and aquatics Increased sediment and runoff from pipelines (especially at water crossings) and roads, affecting water quality and fish habitat Localized reduced surface water quality Increased access for fishers, putting increased pressure on fish stocks Changes to local hydrology, affecting the integrity of wetlands Clearing of riparian areas at water crossings, increasing water temperature and reducing fish health Fish mortality and morbidity during construction of water crossings Effects on Aboriginal rights Increased risk of accidents, malfunctions, spills and contamination of communities, water, and food sources Increased land and water alienation Increased real and perceived risks of travel and occupancy of land and harvesting Reduced country food harvesting and success, with associated impacts on food security and on diet and human health Reduced transmission of knowledge on the land Reduced enjoyment of the land due to noise and other sensory disturbances Inability/reduced willingness to drink water from the land Increased access and more non-aboriginal harvesters (including in-migrating workers by the thousands) competing for limited fish and wildlife resources Even one of these extremely large pipeline projects would likely negatively effect on CSTC s already heavily impacted land base, access to land, and fish and wildlife resources. Each additional pipeline within CSTC territory that is developed will compound these effects in ways that are not appropriately assessed in the CGL Application and EAO draft Assessment Report. All in combination would likely contribute in a very significant way to land alteration and resource 25

40 losses that would seriously constrain CSTC member Nations ability to meaningfully practice their Aboriginal rights, over and above already serious pre-existing impacts noted previously. Potential for Induced Hydrocarbon Development Activity To date, there has been minimal oil and gas (and coalbed methane) exploration and development in CSTC territory. This too could change with the coming of one or more high volume gas pipelines through CSTC territory. Figure 8 shows the extent of hydrocarbon basins underneath CSTC territory. As noted by EMPR (2008) there is significant potential in interior... basins that are, to date, unexplored. Both Bower/Sustut and Nechako Basins are considered frontier regions with strong initial oil and gas showings. These basins underlie some 35 per cent of CSTC territory. In addition, the Intermontane Belt, which includes the Bowser and Nechako Basins, has been estimated to hold some 24 percent of BC s coalbed methane potential (EMPR 2008). The potential for gas or oil pipelines through CSTC territory to induce further exploration and development of these hydrocarbon basins was not considered by the CGLP or the EAO in the CGL environmental assessment. Figure 8: Extent of Hydrocarbon Basins within CSTC Territory 26

41 Other Reasonably Foreseeable Future Developments Other RFFDs in CSTC territory that may impact on Aboriginal rights and the resources they rely upon, include a variety of mining (Figure 9 indicates areas with prospective showings) and forestry (Figure 10 identifies active and pending cutblocks) activities, and road building activities to support both. These are activities that have yet to occur that will add to effects loading. Summary Discussion of Reasonably Foreseeable Future Developments It is beyond the scope of this study to conduct a fulsome CEA including all RFFDs likely to combine with existing impacts on CSTC member Nations Aboriginal rights and the resources they rely upon. Even a cursory analysis, however, indicates that on top of the existing serious impacts on CSTC member Nations Aboriginal rights, it is reasonably foreseeable to expect: Multiple large and invasive linear developments across CSTC territory (especially the southern portion) in the form of unprecedentedly large (in CSTC territory) gas and/or oil 16 pipelines; Ongoing high volume logging activities in the wake of the MPB epidemic, further reducing forest cover; A variety of mining and other industrial projects across CSTC territory; Continued concerns about effects on Fraser River salmon, the watershed and country food downstream of the Mount Polley tailings breach; and New interest in hydrocarbon development under CSTC territory should gas pipelines proceed. The combined effects of the six currently proposed pipeline projects, and reasonably foreseeable forestry activities on the CSTC land base, and on CSTC member Nations Aboriginal rights, has not been calculated in the CGL EA. Because impacts on Aboriginal land use and Aboriginal rights are inherently connected to land access and wildlife, fish, and plant stocks within their traditional territory, the appropriate scale for CEA is territory-wide rather than an artificially small RSA. Critical work to understand total cumulative effects loading at the territorial level within which Aboriginal rights are practiced, thus remains outstanding. 16 This is notwithstanding that the CSTC and its member Nations have indicated they will not support the Enbridge Northern Gateway Pipeline through their territories (see for example 27

42 Figure 9: Potential Future Mining Activity Locations in CSTC Territory 28

43 Figure 10: Active and Pending Cutblocks in CSTC Territory 29

44 Cumulative Effects on Sufficiency of Resources for CSTC Member Nations (Section 7 of Main Report) Establish VCs and indicators (Section 4) Establish precontact baseline status (Section 4) Identify change agents over time (Section 5) Identify total effects loading to date (Section 5) Add reasonably foreseeable future developments (Section 6) Combine for a more realistic portrait of cumulative effects (Section 7) Figure 11 provides a visual representation of the areas in CSTC territory that have been, are now, or reasonably foreseeably in the future will be, impacted by industrial development or other anthropogenic activities that adversely impact on the land base and resources relied upon by the CSTC member Nations since time immemorial. The data layers are included in the legend. As mentioned previously, not all areas mapped (e.g., in mining claims) will be subject to land clearing and other direct impacts. In addition, linear disturbances (lines such as roads) in Figure 11 are not to scale. 17 Nonetheless, even with these limitations, it is readily evident that CSTC territory has been subject to high levels of industrial activity and land fragmentation over time. This critical context has not been appropriately characterized by either CGLP or the EAO in the CGL environmental assessment. Cumulative effects on sufficiency of resources required to sustain Aboriginal rights Table 2 provides the author s opinion, based on the currently available evidence, of the total cumulative effects loading past, present and reasonably foreseeable future developments - on the sufficiency of specific resources relied upon by CSTC member Nations for continued meaningful Aboriginal rights practices. All of the resources at the time prior to contact were in pristine or adequate conditions (green in the table). 17 On the other hand, Figure 11 only includes forestry data from 1970 onwards, due to potential for regrowth of trees. 30

45 Figure 11: Areas in CSTC Territory Subject to Likely Cumulative Effects from Past, Present and Reasonably Foreseeable Future Developments 31