Embed Size (px)
Citation preview
Albert C. Peeling, Law Corporation
Ross Neil Federal Crown Consultation Coordinator Canadian Environmental Assessment Agency 604–666-9169 [email protected] www.ceaa-acee.gc.ca Brian Murphy Executive Project Director BC Environmental Assessment Office 250-387-2402 [email protected] www.eao.gov.bc.ca 15 July 2013 Dear Sirs, Re: BC Hydro Responses to McLeod Lake Indian Band (MLIB) EIS Sufficiency Review Comments and Deficiencies in the Effects Assessment Methodology re MLIB Treaty 8 Rights
MLIB spent considerable effort providing comments on BC Hydro’s Draft Site C Project EIS. The comments they provided sought information that MLIB feels is essential to ensure meaningful consultation occurred on the Site C Project, and to enable MLIB to fully understand the effect of the Project on its interests. MLIB sought clarity regarding either effects assessment data or methodology, and made recommendations regarding engaging external expertise and/or specialized technical bodies for the purposes of clarifying the appropriateness of the proponent’s approach or position on particular matters.
In nearly all cases, BC Hydro’s responses fail to provide the desired information or clarification.
MLIB requested that COSEWIC (Chair of the Freshwater Fishes Subcommittee) be informed regarding the diminishment of the viability of the Artic Grayling population within the Peace watershed which is predicted within the EIS. Artic Grayling are on COSEWIC’s candidate wildlife species list, and the project’s effects may induce COSEWIC to expedite their assessment of Artic
Grayling. COSEWIC Designations are primary criteria within the proponent’s effects assessment framework. Artic Grayling are a preferred fish species for MLIB.
MLIB requested that information be gathered from the relevant Caribou Recovery Team, expert or specialist regarding their rationale for excluding caribou from consideration within the EIS. Caribou (and their viability and recovery) are very important to MLIB.
Both of these requests are reasonable and made in accordance with Section 20 of CEAA. These requests have been disregarded to date. Either the proponent should be compelled to undertake these tasks, or CEAA should undertake them, as part of the duty to consult with MLIB concerning the Site C Project.
In an effort to better understand the project’s effects on ungulate populations and relate them to MLIB’s interests, MLIB requested that the proponent extend their consideration of population level impacts within the RAA and beyond – recognizing that the project’s implications on habitat will permanently affect ungulate densities outside of the RAA. MLIB also requested that a retrospective modeling exercise be completed on ungulate populations incorporating the project’s effects. Adequate data exists to inform such an analysis.
The proponent has disregarded both requests citing their compliance with the EIS Guidelines. At present, inadequate information has been developed for the purposes of determining the full scope of the project’s impacts on MLIB’s interests in ungulates.
The EIS Guidelines are intended to serve as the primary guidance for the proponent, in terms of valued components and effects assessment methodology, to be included within the EIS. The Guidelines do not preclude the proponent from fulfilling the obligation to substantiate or elaborate on effects and findings noted during sufficiency reviews. They have relied upon a standard response of “compliance with the EIS Guidelines” in numerous instances where MLIB (and other reviewers) have requested clarification, additional information or more detailed analyses. From MLIB’s perspective, compliance with EIS Guidelines is not adequate if those guidelines are used to excuse a lack of meaningful consultation.
MLIB noted two areas of deficiency within the draft EIS regarding project effects and ungulates and requested addition information and consideration of the matters; the reservoir’s potential to deter migration behaviour, and the reservoir’s potential to induce mortality due to unstable ice conditions. MLIB’s review of the draft EIS indicated both of these matters were inadequately considered within the draft EIS and effects assessment, and could have the potential to magnify the negative effects of the project on ungulate populations. In their response, the proponent has simply cited the Sections of the draft EIS where these matters were considered. No attempt to remedy the deficiency was made.
MLIB noted anomalies in the proponent’s consideration of the project’s effects on white-tail deer related to inferred information from radio tagging. Those anomalies were confirmed in the proponent’s response. The draft EIS should be appropriately modified.
As indicated in detail in MLIB’s response (April 14, 2013), BC Hydro’s methodology and approach to assessing the project’s effects on MLIB’s Treaty 8 rights is inadequate.
The proponent has limited their consideration of the matter to Traditional/Current Use (rather than the recognition of MLIB’s, and other First Nations, Treaty 8 Rights), and infers that the two are similar to the point of being surrogates, which they are not. They have further limited consideration of Traditional/Current Use relative to their established LAAs and focussed on “opportunity” to exercise rights rather than the maintenance of a meaningful right to exercise (preferred species, preferred means of exercising the treaty rights, methods, timing, area, etc.). By focussing merely on opportunity to exercise rights, the proponent has missed that the rights include protection of the preferred means of exercising rights, at times and places meaningful to MLIB members.
The Crown Response dated October 15, 2012 to McLeod Lake Indian Band's comments on the Draft Environmental Impact Statement (EIS) Guidelines (see CEAR #345) indicated that section 19 is focused on the current use of lands and resources for traditional purposes, not on McLeod Lake’s section 35 rights, which will be addressed in section 20 (now 34).
In the proponent’s response to MLIB’s April 14, 2013 draft EIS comments regarding their consideration of effects on Treaty 8 rights – the proponent referring MLIB to – “Technical Memo: Methodology for the Assessment of the Potential Impacts of the Project on the Exercise of Asserted or Established Aboriginal and Treaty Rights” the proponent indicates “While BC Hydro determined, in each case, whether residual effects on the current use of land and resources for traditional purposes, was likely to be significant in Volume 3 Section 19.4, the potential impact on asserted or established Aboriginal and Treaty rights is not a valued component, and no significance determination was required by the EIS Guidelines or carried out.” This also precludes the proponent from assessing impacts to Treaty 8 Rights within their cumulative assessment framework, although they convey that Site C, in combination with other proposed and ongoing activities, will perpetuate significant negative effects on VECs and Tradition/Current Use.
The proponent’s responses are consistent with their approach and methodology with respect to Traditional and Current Use and Treaty 8 Rights, but this approach is inconsistent with and a deviation from CEA 2012 and the EIS Guidelines.
In relation to responses the proponent received concerning prior impacts and Traditional and Current Use and Treaty 8 Rights, which included specific concerns from MLIB, the proponent
has provided a “Technical Memo: Consideration of Historical Context in Assessment of Potential Effects and Impacts on Aboriginal Groups.” The document largely rationalizes their lack of consideration of this matter based on their interpretation of recent precedents. MLIB’s prior (April 14, 2013) responses concerned the implications of Site C perpetuating further adverse effects that would culminate in an Impairment of their Treaty 8 Rights/Interests. This matter is not considered within their Technical Memo.
The existing degraded state of MLIB Traditional Territory having regard to those environmental, cultural and spiritual components of the environment that are fundamental to the maintenance of the integrity and exercise of MLIB Treaty 8 Rights – is not captured within the proponent’s effects assessment framework. Further, the long-term indirect cumulative effects of Site C’s role in expediting natural gas resource development, and related land-based and water use impacts effecting MLIB’s Interests, are not considered.
MLIB’s Treaty 8 rights have been substantively affected by prior hydro-electric development, as well as other land uses. Hydro development in particular has had an enormous, deleterious effect on MLIB Members’ abilities to exercise of their Rights meaningfully in a healthy cultural context. These deleterious effects are the inevitable consequence of the conversion of large rivers and their tributaries into reservoir environments. The recent TLUS completed by MLIB confirms diminished Traditional use of the areas of Williston and Dinosaur reservoirs, post impoundment (where use was long-term and common prior to impoundment).
The reasons for Traditional Use declining in these impounded areas relates to both practical matters of safety and access, and realities and perceptions of fish/Traditional food toxicity, but also relates to the alterations to the fish and wildlife fauna (and their behaviour) that have occurred post impoundment.
MLIB’s unique traditional knowledge and culture is to a large extent premised in its historical and ongoing connection to large river environs. This includes:
1) The ability to use large waterways and their riparian areas as travel corridors, camping/seasonal residences for hunting, fishing and food collection and preservation
2) Cultural practices that are honed (location/landmarks, timing, methods, etc.) through multi-generational teachings, to the utilization of the a) unique fisheries resources of (and created by) the large river environs that (once)
dominated MLIB’s Territory b) wildlife populations that have behaved in predictable manners (in relation the Peace
River and its valley, prior to impoundment) for generations c) other foods unique to the riparian and valley bottom of the Peace
3) The Spiritual connections to the land and ancestry that stem from continuing and extending
these Cultural practices, which are protected via Treaty 8
The Site C project will perpetuate large-scale effects on MLIB's Rights throughout a large
percentage of the remaining intact portion of the Peace River that continues to be commonly
utilized.
MLIB continues to be ofthe opinion that the enormous effect (evident to date) that the Site C
project will permanently have on MLIB's Treaty 8 Rights provides an adequate rationale to
require the proponent to expand the realm of alternatives to the project that were considered
to meet the need for the project. MLIB believes that the Site C Project constitutes an actual
infringement of MLIB's Treaty Rights given the loss of nearly the entire large river environment
central to their culture. As one approaches infringement, the duty on the Crown and on BC
Hydro changes form. Mere duty to consult and accommodate becomes a duty to justify
infringement with a much higher onus on the Crown. In this case, among other things, that
change means that, given the generation of power is a valid legislative objective, the Crown
must achieve its objective in the manner that impairs MLIB's Treaty Rights as little as possible.
The Crown cannot legislate its priorities in such colourable attempt to avoid the obligation to
justify infringement.
The proponent has indicated (Triage Final Response to ab_0009-024) that the CEAA and JRP
must recognize the existing legislative parameters that have constrained their consideration of
alternatives to the project. Those parameters are dubious in light of the constitutional priority
afforded treaty rights, but in any event the legislatiye parameters in provincial legislation
cannot constrain CEAA as a federal body. MLIB believes that the proponent should be
compelled to consider all available alternatives to the project, including those that are presently
at odds with provincial legislation and policy- for the purposes of considering those
alternatives that minimize the Impairment of MLIB's Treaty 8 Rights. In the absence of such
information, the EIS would be deficient for the purposes ofthe JRP's consideration (relative to
their Terms of Reference).
Yours truly,
Barrister an
