Reply / Plamondon (Shell) September 13th

, 2012 1

Fort Chipewyan Métis Local 125Métis Nation of Alberta

September 13th

, 2012

Mr. Jason Plamondon Sent via email only:Advisor, Aboriginal RelationsShell Canada Energy

Re: Reply to Letter Dated August 17, 2012

Dear Mr. Plamondon:

We concur that Métis Local 125 has been meeting with Shell’s representatives for some time. During that time, wehave repeatedly stated that we wish our community to be treated the same as our friends, relations andneighbours in the First Nations’ communities (Mikisew Cree Nation and Athabasca Chipewyan First Nation). Wehave not been. Shell treats the Métis like a ‘stakeholder’, while the First Nations receive substantial monies toconduct impact assessments and sit at tables to discuss impact mitigation and accommodations. In our ‘good faith’gentlemen’s approach, we trusted and presumed that Shell would prefer to avoid such expensive avenues andwould proceed to treat us equitably. They have not. We receive recommendations to request such negotiations,acknowledging that much work is to be done, and ask that ‘good faith’ agreements be put in place to ensure thatthe whole discussion does not fall off the table once deals are struck and hearings are past. Instead of affirmativereplies, we receive responses from staff members junior to those to whom they were addressed, complaints thatwe have changed the scope of our funded studies, and accusations that we did not address Shell’s requests. Thisletter seeks to address all of these matters.

We deemed it necessary to change our approach to regulatory matters in the winter of 2012. We have and areexperiencing the same impacts from industrial development as our First Nation neighbours. We have, in theabsence of any industry support or engagement of these activities (unlike the industry-funded organizations thatsupport First Nations in such activities) engaged legal, regulatory and assessment advisors to support our efforts inthis regard. We acknowledge that we are late in engaging in the regulatory processes for Shell’s proposed JackpineMine Expansion (JPMX) and Pierre River Mine (PRM) projects, but we also feel strongly that we have to getinvolved to protect our interests and try to mitigate impacts to our rights-bearing community.

We confirm Shell understands that:

only Métis Local 125 is legally able to sign-off on any impacts, consultation, or infringements of personswho trace their Métis rights to the Fort Chipewyan Métis; and,

it has always considered Métis Local 125 as representing a rights-bearing community.

Reply / Plamondon (Shell) September 13th

, 2012 2

After we transmitted the July 23, 2012 letter to Ms. Jefferson regarding a clarification of our position, Métis Local125 filed a Statement of Concern (SoC) on both the Jackpine Mine Expansion and Pierre River projects. The SoC isdated August 11, 2012 and should be on the JRP web site. Regarding paragraph 1 on page 2 of your August 17

th

letter, we have been informed by the Shell Jackpine Panel Manager that we could filed a SoC on these projects atanytime, so we have done so.

First Nation Consultation Policy

You indicate that Shell exceeds the requirements of the First Nations Consultation Policy 2007. That is laudable inrespect to your company’s actions with First Nations. As we indicated in our letter, there is NO Alberta MétisConsultation Policy. There is NO mechanism, either direct or delegated, for either Shell or Alberta to discharge theconsultative legal obligation by virtue of the policy vacuum. The First Nation Consultation Policy does not apply tous.

Alberta Consultation with Métis

Alberta is legally obligated to examine the nature and scope of both the credibly-asserted and proven rights ofpossibly affected Aboriginal communities. We draw Shell’s attention to Alberta’s Métis Harvesting Policy,previously provided and attached herein. We do not have to assert; Alberta has acknowledged that we are aSection 35, constitutionally-protected, harvesting rights-bearing community. Alberta is required to determine theimpacts of projects and the scope of consultation that they must engage in with our community. To date, noAlberta agency or department has contacted Métis Local 125 to discuss the potential impacts of the Shell projects.However, we have written to Alberta asking for consultation on Projects in advance of decision-making byregulatory bodies. It appears that Alberta has completely abdicated Métis consultation. Again, this should be ofgrave concern to your company.

Impacts to our Community

We do not consider meetings and/or the provision of technical information to meet the full requirements ofconsultation with us as rights-bearers. In the absence of technical advisors and resources, such engagement willalways lack capacity and fall short of the ‘honour of the crown’. In the past, we had chosen not to respond toindustry requests for our time by creating a large team of ‘experts’, trusting, as per Section 35, that we would bedeemed the same as other Aboriginal peoples in our community. We have shown Shell that we have prima facieharvesting rights, not only asserted by us, but acknowledged by Alberta.

In our letter to Shell (dated May 9th, 2012), we outlined our interests and concerns as Métis peoples living in FortChipewyan, both from an environmental and traditional use perspective. Both Mikisew Cree First Nation (MCFN)and the Athabasca Chipewyan Cree Nation (ACFN) have filed very comprehensive studies and impact assessmentson Shell’s projects. They have been active in the regulatory arena for some time and have been very well fundedby proponents to do so. We share the concerns and assessment statements in these studies regarding potentialenvironmental impacts from Shell’s proposed projects. The First Nations’ findings and the results of these studiestrigger the most intensive level of consultation and accommodation by the Crowns. It should be self-evident thatACFN, MCFN and we Métis all live in the same community and we all have constitutionally-protected harvestingrights. If they have credible or asserted cases of severe and lasting impacts, including cumulative impacts, then it isonly logical that we are similarity impacted. We feel that the ACFN and MCFN studies can be used as a foundationto prove a credible case of impacts on our harvesting rights, but also acknowledge that we have work yet to do tomake the ‘Métis’ case. We hope and trust that Shell will provide funding and time to permit such work.

Reply / Plamondon (Shell) September 13th

, 2012 3

Shell’s Consultation Logs

Your understanding and our understanding of your Consultation Logs is very different. To reiterate previousdiscussions and as previously stated in our May 9

thletter, we wish to emphasize the following:

To wit, we have attended Shell meetings for many years now. You have provided information to us andasked us questions. Anecdotally, we have expressed concerns and tabled many issues during thosemeetings. We see our issues and concerns noted in abbreviated forms in these logs or some variation ofthem in a summarized form, where the connotation is that they have been addressed. While weunderstand that there may be areas where we may never come to agreement, our questions should benoted as concerns, and where unresolved or ‘impossible’ to address, this should be remarked.

We have been told that Shell files these Consultation Logs with the Crowns and regulators. We would stronglydisagree that this represents any discharge of the Crown’s constitutional obligation to consult with Métis.

Lastly, another of our concerns regarding Consultation Logs and the various correspondence between Shell, MétisRegion 1 and Local 125, is the misunderstandings evidenced in these communications. Again, we draw yourattention to our letter dated May 9, 2012 (attached).

Meaningful Engagement

We understand that the obligation to consult rests with Canada and Alberta. We are in our current positionbecause of Alberta’s and Canada’s political positions. However, we feel we must address the word ‘meaningfulengagement’ in your letter. There is an abundance of case law dealing with fairness and the guiding principles forAboriginal consultation. In order for an Aboriginal community to be meaningfully engaged in capital ‘C’constitutional consultation, the following would need to be in place:

capacity (people and resources)

the ability to garner knowledge and analyze your projects (resources to review studies)

the ability to speak with our people (internal consultation)

the ability to analyze the short, medium, long-term and cumulative effects (commission studies andthereafter apply those impacts to our base case to assess the magnitude of the impacts to achieve informedpositions)

Only after the real assessment of impacts on Métis rights has been completed can large ‘C’ consultation begin. Aconsultation discussion/negotiation should normally take place with the Crown, and to some extent, industry todiscuss impacts on rights, mitigation, accommodation and even compensation. We are acutely aware that Shell, asa ‘procedural delegate’, makes these assertions in an attempt to shore up both Alberta’s and Canada’sshortcomings. But the fact remains, the equitable principals of ‘meaningful engagement’ and ‘consultation’ has notbeen met by any of the parties.

Métis Use and Occupancy Study and Shell’s Funding

Shell has noted its contribution to our Métis Use and Occupancy Study (MUOS). While we appreciate their original

$20,000 contribution, we have shared in meetings with their representatives (June 20th

, 2012 for example) that this

funding in no way constitutes an assessment of potential impacts to our livelihoods or lifeways as Métis peoples. The use

and occupancy information gathered during such studies may contribute to a better understanding and more informed

discussions with industry and government, but it certainly cannot be considered or equivocated with the type of work

that is done for a project-specific impact assessment. As noted in the ‘TLUS Study Funding’ proposal referred to in their

Reply / Plamondon (Shell) September 13th

, 2012 4

May 23rd

, 2012 letter (submitted to Shell in December of 2008), overall costs for the original study scope for such work

was $200,000. To date, the MUOS has been funded to the extent that we have completed historic interviews with the

majority of our Elders. To make best use of remaining monies, it was determined that the creation of some thematic

harvesting maps based on historic information would serve to provide at least some background to industry discussions.

Shell has agreed to provide an additional $20,000 to fund the completion of these maps. Again, these do not represent

an assessment of potential impacts from Shell’s proposed projects. We agree and understand that there is much more

work to be done before we can share our information regarding this aspect of potential impacts to the Fort Chipewyan

Métis.

To address point 7 on page 2 of Shell’s letter, the scope and content of our MUOS has not changed. Again,

comprehensive traditional use and/or use and occupancy studies conducted by a community cannot and should not be

considered by industry as studies that provide information sufficient to conducting a project-specific impact assessment.

The Métis have always been willing to use their use and occupancy information with industry partners, to the extent that

it may inform and assist in ongoing discussions and relationship-building. Our MUOS has not been funded to the extent

that might enable more informed discussions with some developers. However, as stated in our 2008 Funding Proposal,

the primary purpose of our MUOS is to collect our use and occupancy information, as well as our cultural environmental

knowledge, for our own community’s development, understanding and use. This continues to be the main purpose of all

work on our MUOS project.

Requests (our letter of July 23, 2012) and Shell’s Responses (your letter of August 17, 2012)

1. New Relationship: We acknowledge that you consider us a rights-bearing community.

2. Information Request: As you have explained in your letter, Shell has been providing information to ussince 2007. However, without a means to analyze and then apply that information to impacts on ourrights, the information has been of little use. Based on the severity of the impacts shown by ACFN andMCFN, the bare provision of information and meetings is an insufficient level of consultation. However,we do acknowledge that you send information and we would ask that you please continue to do so.

3. Completion of Historic MUOS Thematic Maps: Shell has agreed to support the completion of these maps.Work has been underway since the budget was approved, and we hope to have those available fordiscussions in the near future.

4. Engagement Support: Thank you for your expression of being open to engage in a discussion about ourcapacity restrictions. We hope to be able to discuss this with you at our next meeting.

5. Fort Chipewyan Métis Consultation Agreement: Thank you for your openness to meet with us to reviseour consultation arrangements and discuss capacity issues.

6. Local’s Interim Regulatory Costs: Your response to this request is less than satisfactory.

We have little to no financial capacity. Additionally, we have missed the opportunity to secure CEAAfunding on either JPMX or PRM.

Thank you for your advice to examine Directive 031.

First Nations, engaged in regulatory activities, have expressed that both CEAA and the ERCB funding hasbeen found to be inadequate. They express this view even though they all receive infrastructure and otherfunding support to:

their Band Councils,

their internal revenue generated from previously established economic ventures with industry,

Reply / Plamondon (Shell) September 13th

, 2012 5

their industry relations organizations, and

their activities by way of enhanced program and project funding that are unavailable to Métis.

Respectfully, to make consultation ‘real’ for us with Shell, we are going to need to leave this item ‘on thetable’.

7. Traditional Use and Impact Assessments: We understand from your correspondence that there has been afundamental misunderstanding about what was to be produced, and what you funded. We hope that ourclarifications above will permit us to find some common ground in this respect.

8. Consultation & Industrial Relations: Thank you for your openness in having discussions with us aboutShell supporting the development of a Consultation Division for Métis Local 125. We look forward todiscussing this at our next set of meetings. We will need Shell’s support and the support of other industryplayers. Your role as a potential champion would be appreciated.

9. Mandate to Negotiate an Interim Measures Agreement (IMA): We proposed this interim measure asaway to improve commercial certainty, predictability and timeliness of decisions. The choice is yours. Wewill do what we must to protect our community and Shell will do what it thinks it must do to get theirprojects approved.

10. Mandate to Negotiate and IBA: We acknowledge we are not at this stage in our relationship. In goodfaith, we are apprising you of our path. We would not conclude an IBA with Shell at this stage. Until weknow the real impacts of Shell Jackpine and Pierre River Projects, the most we can achieve is a Stand StillAgreement or IMA.

We appreciate your willingness to have discussions with us in the near future. In the future, Métis Local 125representatives will only be meeting with industry and/or governments when we have the support of our technicaladvisors present. We look forward to your replies.

cc. Jill Adams, Panel Manager, Jackpine and Pierre River, Sent via email: Shell.Reviews@ceaa-acee.gc.ca

Ms. Linda Jefferson, Shell Canada Limited, Sent via emai

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Métis Harvesting in Alberta – July 5, 2007 - Updated June 2010 Page 1 of 5

Métis Harvesting in Alberta July 2007 – Updated June 2010

In the case R. v. Powley (September 19, 2003), the Supreme Court of Canada found that members of the Métis community in and around Sault Ste. Marie, Ontario have, under s. 35(1) of the Constitution Act, 1982, an aboriginal right to harvest for food that was infringed without justification by the Ontario hunting legislation. In reaching its decision, the Supreme Court set out a number of criteria for Métis people in establishing their right.

Some Métis in Alberta are the beneficiaries of constitutionally protected harvesting rights as described in Powley. Three elements are essential to government of Alberta’s recognition of those rights:

Determining who are Métis harvesters; What comprises Métis harvesting rights; and Where those rights can be exercised.

Who is a Métis Harvester? A person who asserts a constitutionally protected Métis harvesting right has the onus to prove that assertion. A person who wishes to fish using a net must have a Métis Domestic Fishing Licence; an individual’s eligibility for that licence must be established before the licence is issued. A person who wishes to fish by any other legal means must have a sportfishing licence. A person who wishes to hunt must be able to demonstrate that he/she is a Métis harvester as described below. If checked while hunting, the person will be given 60 days to produce evidence of their status as a harvester, and, if unable to do so, may be charged with an offence. If an individual is uncertain whether they will be able to prove that they possess an aboriginal right they should seek legal advice, as you may be required to prove the existence of such a right in court if you are charged with an offence. Alternatively, individuals may wish to purchase the necessary licences in order to avoid uncertainty. A person is a Métis harvester only if he or she meets the test set out in the Powley case.

Métis Harvesting in Alberta – July 5, 2007 - Updated June 2010 Page 2 of 5

To demonstrate that you are a Métis harvester, you must provide evidence that you meet the Powley test. You should be prepared to produce evidence that you satisfy the following criteria:

That you self-identify as Métis, and for how long you have self-identified as Métis

o membership in the Métis Nation of Alberta or a Métis Settlement or a statutory declaration confirming self identification would assist in demonstrating self identification,

o membership in either of these organizations, or a Statutory Declaration, is not sufficient to meet the Powley test;

That you have an ancestral connection to an historic Métis community1 in Alberta;

o genealogical history, including where ancestors lived and when they lived there,

o please go back in time as far back as possible, and in any event, back to the late 1800's;

That you belong to a contemporary Métis community in Alberta. o name that community and demonstrate acceptance by and

involvement in that community; That you are a resident of Alberta.

Thorough information will help make the decision-making process efficient. At this time, Alberta is prepared to consider for the purposes of Métis harvesting the eight Métis Settlements and the following 17 communities as both historic and contemporary Métis communities: Fort Chipewyan, Fort McKay, Fort Vermilion, Peace River, Cadotte Lake, Grouard, Wabasca, Trout Lake, Conklin, Lac La Biche, Smoky Lake, St. Paul, Bonnyville, Wolf Lake, Cold Lake, Lac Ste. Anne and Slave Lake.

When Hunting Can Take Place Métis harvesters may hunt for food at all times of the year.

1 In light of the unique history of Alberta’s eight Métis Settlements, an ancestral connection to a Métis Settlement can be established by demonstrating a pre-1900 ancestral connection to the general geographic area of the settlement, or a pre-1900 ancestral connection to a recognized Métis community within Alberta from which an individual or their family migrated when the settlement was established. Again, when submitting documentation, please go back in time as far as possible, and in any event, back to the late 1800s.

Métis Harvesting in Alberta – July 5, 2007 - Updated June 2010 Page 3 of 5

Where Hunting Can Take Place A Métis harvester may hunt for food only within the community harvesting area2 of his or her community. Within that harvesting area, a Métis harvester may hunt on:

unoccupied Crown land; and other land to which they have a right of access for hunting (e.g., privately-

owned lands if they have first obtained the landholder’s permission to enter for the purpose of hunting).

The Recreational Access Regulation applies to Métis harvesters.

Where Hunting Can Not Take Place A Métis harvester may not hunt on land that is being put to any other use that is visibly incompatible with hunting. This determination must be made on a case-by-case basis. The safety of other persons, livestock and domestically raised animals is of primary importance. The presence of fences, signs, fields, buildings, domesticated animals or indications of farming or industrial activities all suggest uses that are visibly incompatible with hunting. For example, unless permission has first been obtained for hunting on such lands, Métis harvesters may not hunt on lands:

being actively used for mining, lumbering or other industrial purposes; that are fenced, posted, or cultivated; that contain buildings that may be used or occupied; on which livestock or other domestically raised animals may be present.

A Métis harvester may not hunt in:

provincial parks, recreation areas, ecological reserves or other similar lands where no hunting is allowed;

wildlife sanctuaries, including road corridor wildlife sanctuaries. Laws that Apply to Métis Harvesters Safety – laws dealing with hunting safety apply to Métis harvesters. For example, a Métis harvester is not permitted to hunt in a dangerous manner, illegally discharge a weapon or firearm (such as from a primary highway, or within 200 yards of an occupied building, or at night), discharge a weapon from a vehicle or have a loaded firearm in a vehicle. Local municipal bylaws that prohibit the discharge of weapons in some areas may also apply.

2 In the absence of a more definitive description of a community’s historical harvesting area, Alberta presently considers a harvesting area to comprise the area within 160 kilometres of a community.

Métis Harvesting in Alberta – July 5, 2007 - Updated June 2010 Page 4 of 5

Wastage of Meat – laws that require that the edible meat of any game animal or bird not be wasted, destroyed, spoiled or abandoned apply to Métis harvesters. Sale of Wildlife (Trafficking) – selling, buying, bartering, soliciting or trading in wildlife or wildlife parts, and offering to do so, are activities governed by the Wildlife Act and Regulations. Many of these activities are strictly prohibited, while others are regulated. Hunting for the purpose of unlawful trafficking in wildlife, including parts such as meat, trophy heads, antlers, horns, or skins, is prohibited. However, the incidental sale of skins from deer, elk, moose or pronghorn antelope that were lawfully hunted (including by a Métis harvester) is permitted under the Wildlife Act. Registration – for the purposes of conservation and management of the following species, all persons, including Métis harvesters, must register the kill of each of these animals in person and submit certain parts:

bighorn sheep over the age of one year must be registered within 30 days of the kill (hunter must submit the complete and unaltered skull with horns and eyes intact);

mountain goat must be registered within 30 days of the kill (hunter must submit the incisor bar);

grizzly bear must be registered within 4 business days of the kill (hunter must submit the skull and skin, and evidence of sex must be attached to the skin and visible);

cougar must be registered within 2 business days of the date of the kill (hunter must submit the skull and skin, and evidence of sex must be attached to the skin and visible).

Trapping – the right of Métis harvesters to hunt for food does not include the right to trap animals for the purpose of selling their fur. Export of Wildlife from Alberta – the export of wildlife from Alberta is governed by both federal and provincial laws. Certain types of wildlife and certain wildlife parts cannot be exported from Alberta by any person, including a Métis harvester; this includes bear paws and bear gall bladders. Migratory Birds – certain federal laws including the Migratory Birds Convention Act and the Migratory Birds Regulations apply to all hunters, including Métis harvesters. A Métis harvester may hunt migratory game birds at all times of the year, however bag limits, permit requirements and other laws concerning migratory game bird hunting do apply. Sustainable Resource Development defers to the Canadian Wildlife Service to provide details of the application of these laws to Métis harvesters.

Métis Harvesting in Alberta – July 5, 2007 - Updated June 2010 Page 5 of 5

Fishing Métis harvesters must abide by all regulations pertaining to fishing, including holding applicable fishing licences. Sportfishing licences – these licences authorize fishing by means of angling and other methods permitted by the regulations.

This licence is available to any resident of Alberta. A person who is under 16 years of age or over 65 years old does not

require a licence to fish in this manner. Métis domestic fishing licences – these licenses authorize fishing for food in a specified water body with one gill net that is not over 100 yards in length and of a minimum mesh size. The licenses are issued to Métis harvesters based on the following criteria:

the person must be eligible as a Métis harvester in accordance with the criteria set out by the Supreme Court in the Powley case (Note: in addition, pursuant to the Métis Settlements Act, a member of a Métis Settlement is eligible for a licence to fish in a lake that is within or bordering the Métis Settlement in which he or she lives);

licences are issued only for those waters identified by fisheries managers as supporting domestic fishing; an eligible applicant may be considered for a Métis domestic fishing licence authorizing fishing only in waters that are within their community harvesting area.