Via Email: sitecreview@ceaa-acee.gc.ca DATE: February 3, 2014 To: Joint Review Panel Canadian Environmental Assessment Agency 160 Elgin Street, 22 nd Floor Ottawa, ON K1A 0H3 British Columbia Environmental Assessment Office 836 Yates Street, 2 nd Floor Victoria, BC V8W 9V1 Re: Site C Clean Energy Project (the "Project") Kelly Lake Cree Nation ("Kelly Lake") Closing Remarks to the Joint Review Panel (the "Panel") Thank you for your correspondence dated November 27, 2013, inviting Kelly Lake to provide its views on the Project, and, for providing Kelly Lake with an opportunity to present its views to the Panel on January 17, 2014 at the Asserted or Established Aboriginal and Treaty Rights Public Hearing Session held in Fort St. John, B.C. Kelly Lake Cree Nation The Kelly Lake peoples are of the original Rocky Mountain Peoples who are of Dunne-za and Nehiyaw (also known as "Cree") ancestry of the Peace River country. We are the descendants of Aboriginal peoples who have lived on an area of land straddling the current border of the provinces of Alberta and British Columbia, since time immemorial. The intermarriage of our nations was caused by the close proximity in travel. It is our mother language name of the Rocky Mountain People known as the As in I wa chi Ni yawak Tribe. That s who we are. The Kelly Lake Cree Nation represents approximately 800 citizens living within our traditional territory of 44,000 square kilometres of unceded land as set out in the enclosed maps. Our community of Kelly Lake is located south of Toms Lake, about 10 kms east of Highway 52, and is also approximately 150 kms from the City of Fort St. John. Kelly Lake citizens have acted as land and resource users, stewards and managers of our traditional territory for millennia, and hold extensive Aboriginal knowledge about the Peace River region. Our ancestors have continuously used, occupied, possessed, cared for, and had dominion over, and Aboriginal title to, our lands, our traditional territory. This knowledge has been passed down through oral histories and ongoing engagement in our traditional land use activities. PO Box 66 Tomslake, BC V0 C 2L0 780.356.3125 chief@klcn.ca 1
Kelly Lake citizens have traditionally lived, hunted, fished, trapped and gathered in our traditional territory, and we still do today. Our land-based activities have distinguished and characterized our traditional culture, and lie at the core of the Kelly Lake's identity. Our traditional territory is the preferred location for the meaningful exercise of our Aboriginal rights, which are integral to our Nation s distinctive existence and culture. As a historic and contemporary rights bearing Nation, we use this area to maintain our traditional way of life and our identity as distinctive Aboriginal people. Kelly Lake Cree Nation Citizens are Aboriginal Peoples Kelly Lake citizens are Aboriginal peoples of Canada as set out in Section 35 of the Constitution Act, 1982, and hold Aboriginal rights and have asserted our title throughout the entirety of Kelly Lake's traditional territory. No Treaty Kelly Lake has never ceded, surrendered, or sold our lands and resources, nor have we entered into any treaties with Canada. The lands and resources belong to Kelly Lake, and we have historically and consistently held this view and asserted this right. When Treaty No. 8 was first signed in 1899, and the adhesions signed in the years afterwards, Kelly Lake continued to be outside of the areas and First Nations who were treated with by the Crown. Comprehensive Land Claim We filed a comprehensive land claim in the Federal Court of Canada in 1996. This claim is recorded in the Federal Court registry as Action Number T-1685-96. This action is ongoing, and the parties continue to take steps to move this action along. Notwithstanding Canada having recognized the U.N. Declaration on the Rights of Indigenous Peoples on November 12, 2010, nothing has changed in Canada s view, or in British Columbia s view, regarding their treatment towards us as indigenous peoples, or the settling of our land claim. We have been in court with the federal Crown regarding our land claim for 18 years now, and we are still struggling as a people for recognition. However, make no mistake about it, the Crown has had notice of our Aboriginal title and rights to this land for a long time, at the very least since 1996, and there is no excuse for the treatment we have received from the Crown, or from BC Hydro, regarding the consideration of any potential adverse impacts of the Project on our Aboriginal title and rights to our traditional territory. PO Box 66 Tomslake, BC V0 C 2L0 780.356.3125 chief@klcn.ca 2
No Consultation The Supreme Court of Canada has confirmed that the source of governments' duty to consult with us as Aboriginal peoples, and the need to accommodate our interests, is grounded in the Honour of the Crown. 1 Specifically, the Supreme Court of Canada stated that in all its dealings with us as Aboriginal peoples, from the time of the Crown's assertion of sovereignty to the resolution of our land claims and the implementation of our treaties, the Crown must act honourably. 2 The Supreme Court of Canada has also told us, as Aboriginal peoples, that the duty to consult with us derives from the need to protect our Aboriginal interests while our land and resource claims are ongoing or when the proposed action may impinge on an Aboriginal right. 3 The Supreme Court of Canada clearly confirmed that the duty to consult is triggered: 4 1. when the Crown has knowledge of a potential Aboriginal claim or right (such as our land claim); 2. and the Crown contemplates conduct (such as approving the Site C project); 3. and such conduct contemplated has the potential to adversely affect an Aboriginal claim or right (such as our nation's Aboriginal claim and rights). And so, notwithstanding these instructions from the Supreme Court of Canada, and notwithstanding our previous correspondence to the Canadian Environmental Assessment Agency ("CEAA") and the BC Environmental Assessment Office ("BCEAO") dated November 17, 2011 and April 30, 2012 respectively (where we provided our comments on the Draft Agreement to Conduct a Cooperative Environmental Assessment and the Draft Environmental Impact Statement Guidelines) we were repeatedly told by BC Hydro that we were not going to be consulted regarding the project. To add insult to injury, the final version of section 20.1 of the Environmental Impact Statement Guidelines (the "EIS Guidelines") provides that BC Hydro only has to consult with those Aboriginal Groups who are listed at section 20.1 of the EIS Guidelines. Kelly Lake was not included on that list of Aboriginal Groups to be consulted regarding the Project. That being said, the last paragraph of section 20.1 of the EIS Guidelines state that if BC Hydro has knowledge of potential adverse impacts to an Aboriginal Group not appearing on the list, then BC Hydro has to bring this to the attention of CEAA and the BCEAO at the earliest opportunity. We were not provided with notice of any communication by BC Hydro to any party regarding Kelly Lake not appearing on the list of Aboriginal Groups to be consulted pursuant to section 20.1 of the EIS 1 Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43 at para. 32. 2 Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73 at para. 17. 3 Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43 at para. 33. 4 Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43 at paras. 40-50. PO Box 66 Tomslake, BC V0 C 2L0 780.356.3125 chief@klcn.ca 3
Guidelines, nor are we aware of any notice that was provided by BC Hydro to either CEAA or BCEAO with respect to same. To clarify, in response to the Panel Chair's question regarding the above issue at the January 17, 2014 session, Mr. Trevor Proverbs of BC Hydro responded by saying that in BC Hydro's response to an information request regarding a report from Kelly Lake about the exercise of our asserted rights, "We let the panel know at the time that we had not yet received that report, but it was forthcoming and since then we have received that report." 5 This statement implies that BC Hydro received a report from Kelly Lake containing Traditional Land Use of Kelly Lake, however, such an implication is incorrect. Kelly Lake submits that the above statement, and the actions contemplated by it, by BC Hydro does not fulfill the requirement under section 20.1 of the EIS Guidelines. Kelly Lake submits that the report referred to by Mr. Trevor Proverbs was a Social Impact Assessment, not a Traditional Land Use Study, and so any potential adverse impacts of the Project on Kelly Lake's Aboriginal title and rights to our traditional territory have yet to be studied by BC Hydro, much less considered and assessed by the Panel. Further, because we were not included on the list of Aboriginal Groups to be consulted with, BC Hydro has not engaged in consultation with us to identify potential adverse impacts resulting from the Project on our Section 35 Aboriginal rights and title. Accordingly, BC Hydro refused to pursue a consultation agreement with us, and, they refused to fund a project-specific Traditional Land Use Study that would identify any potential adverse impacts resulting from the Project. Thus, the Kelly Lake Cree Nation has not been involved in the development of any critical baseline studies, nor have we been involved in any of the development or analysis set out in the Environmental Impact Statement with respect to the current use of lands and resources for traditional purposes or asserted or established Aboriginal and Treaty rights. And, due to very limited financial resources and capacity, the Kelly Lake Cree Nation cannot fund a project-specific Traditional Land Use Study on its own for use with the Project. Thus, the Kelly Lake Cree Nation has not been adequately consulted with respect to the Site C project, and as a result, the Crown has failed to discharge its duty of consultation that is owed to the Kelly Lake Cree Nation. In the meantime, and contrary to what the Supreme Court of Canada has directed us all to do, the environmental damage continues to occur on our traditional territory. 5 Certified Hearing Transcript, Volume 23, Proceedings at Hearing: Topic-Specific Session Asserted or Established Aboriginal Rights and Treaty Rights at page 210 (beginning at line 8). PO Box 66 Tomslake, BC V0 C 2L0 780.356.3125 chief@klcn.ca 4
Aboriginal Rights and Impacts Kelly Lake possesses Aboriginal rights and title over our traditional territory, and they include the Aboriginal right to: hunt, fish, trap, and to gather resources from our traditional territory; to exercise our constitutionally protected Aboriginal rights now, and into the future; to sustain a livelihood from the resources from our traditional territory; to practice our culture, to transfer our cultural knowledge, and to teach our younger generations how to hunt, fish, trap and gather, and to sustain their livelihoods using the resources from our traditional territory; to have our spiritual sites protected from harm or intrusion; and to have the right to self-governance. Kelly Lake continues to use our traditional territory in the exercise of our constitutionally protected Aboriginal rights and title. In spite of our best efforts, Kelly Lake is continuously overwhelmed by the number of industrial developments and environmental destruction that is occurring to our environment on our traditional territory. Our spiritual sites and practices are ignored, our hunting and fishing resources and opportunities disappear, and our citizens are driven out of our traditional territory so they can to try to find a way to live somewhere else. The Project and its related infrastructure will result in the loss of considerable areas of forest, the loss of prized hunting and fishing grounds, the loss of prized agricultural lands and other resources on which Kelly Lake relies on for livelihood and cultural practices. Negative impacts to river patterns are likely to adversely affect hunting, gathering, trapping and fishing economies upstream and downstream, and reduce land resource values. Consequently, the ecological values of the Site C Project also have secondary effects on our livelihood, our traditional food security and our traditional practices within the Peace River valley. The fertile soils of the Peace River valleys have always been densely populated, and they gave rise to some of the earliest peoples known today. Displacing these prehistoric communities risks the loss of valuable traditional knowledge systems, and destroys part of our cultural heritage. We are also concerned with health related issues linked to important watersheds in the Peace River Valley. We are concerned about eating fish and animals that will contain harmful chemical compounds as a result of the Project's construction. The risk of elevated chemical compound concentrations in fish, which are harmful to humans, is one of the most important issues to us in assessing the environmental impact of hydroelectric dams such as the Project. We have previously experienced reduced fish populations as a result of cumulative impacts of other major developments in our traditional territory, and we do not want the same situation to happen again. The Impacts to the Aboriginal Rights of Kelly Lake Cree Nation have not been adequately studied, delineated, or assessed by BC Hydro PO Box 66 Tomslake, BC V0 C 2L0 780.356.3125 chief@klcn.ca 5
Pursuant to section 5 of the Canadian Environmental Assessment Act, 2012 6 (also known as "CEAA, 2012"), the environmental effects which the Panel must consider include the effects that the Project will have on the current use of lands and resources by Aboriginal peoples for traditional purposes. In order for the Panel to be able to consider such effects, the relevant and applicable information must of course be determined by way of Traditional Land Use and knowledge studies, and the information obtained through such studies must be put in front of the Panel. Accordingly, section 4.3 of the EIS Guidelines mandates that the Panel will receive information on the location, extent and exercise of asserted or established Aboriginal rights and treaty rights that may be affected by the Project. Unfortunately, as a result of the inadequate consultation described in this letter above, and the insufficient funding being provided to Kelly Lake, Aboriginal Traditional Knowledge and Traditional Land Use studies have not been undertaken in relation to the Aboriginal Traditional Knowledge and Traditional Land Use of Kelly Lake. Further, because these studies were not undertaken, BC Hydro has failed to identify the spatial and temporal extent of current traditional use by Kelly Lake. This, of course, is in direct opposition to what is required of section 4.3 of the EIS Guidelines, and of section 5(1)(c) of CEAA, 2012. It is not up to First Nations to create studies, and then bring them to a proponent such as BC Hydro, and then ask for funds for further studies. First Nations simply do not have the capacity to do that. Rather, the onus is on the proponent to see that the relevant studies are completed and assessed, and BC Hydro has failed to do so with respect to Kelly Lake. Kelly Lake was prepared to provide traditional knowledge to the Panel and participate in a Traditional Land Use study, if sufficient funding would have been made available by BC Hydro for Kelly Lake to undertake such a study. The information produced by such a study would greatly benefit the panel, and its decision making process. The Kelly Lake Cree Nation is at a loss in the face of BC Hydro's unwillingness to engage and consult in any meaningful way. Such failure on the part of BC Hydro cannot be tolerated by the Panel. The Panel's EIS Guidelines, and section 5 of CEAA, 2012, clearly task the Panel with considering the impacts or infringements that the Project may have on potential or established Aboriginal and treaty rights. BC Hydro's application does not meet the standard that is required of it as it does not put the relevant, applicable and necessary information before the Panel. Because the impacts to the Aboriginal rights of Kelly Lake have not been adequately studied, delineated, or assessed by BC Hydro, the Panel has not been provided with the information it needs to be able to make its assessment with respect to section 5(c) of CEAA, 2012. 6 Canadian Environmental Assessment Act, 2012, S.C. 2012, c. 19, s. 52. PO Box 66 Tomslake, BC V0 C 2L0 780.356.3125 chief@klcn.ca 6
BC Hydro has failed to consider the true potential environmental effects of the Project. BC Hydro has also effectively prevented the Panel from assessing the effects that the Project may have on the health and socio-economic conditions of us as Aboriginal peoples, the physical and cultural heritage of us as Aboriginal peoples, and the current use of lands and resources for traditional purposes by us as Aboriginal peoples because of its environmental assessment methodology. As a result of the foregoing, BC Hydro was mandated pursuant to the Panel's EIS Guidelines and section 5(1)(c) of CEAA, 2012, to study impacts to us as Aboriginal peoples as contained in section 5(1)(c) of CEAA, 2012. Simply put, it failed to do so completely with respect to Kelly Lake. More centrally, BC Hydro failed to properly consider impacts to us as Aboriginal peoples as contained in section 5(1)(c) of CEAA, 2012 in the environmental impact statement. Conclusion The failure of BC Hydro to independently consider these effects within the environmental impact statement's methodology, given their central significance in CEAA, 2012 and the EIS Guidelines, must result in a denial of their application. All my relations, <original signed by> Chief Kwarkwante Cliff Calliou As in i wa chi Ni yaw Nation Kelly Lake Cree Nation cc: MacPherson Leslie & Tyerman LLP (via email) PO Box 66 Tomslake, BC V0 C 2L0 780.356.3125 chief@klcn.ca 7