Stk’emlupsemc te Secwepemc Nation (SSN) PO Box 188, 1030 Trans Canada Hwy. Savona, BC V0K 2J0 Telephone: 250-373-0023 Fax: 250-373-00253-0025 Represented by the Tk’emlups te Secwepemc and the Skeetchestn Band We do not have a mandate, we have a responsibility We are yecminme7
January 29, 2016
Via Email
Kevin Inouye Project Manager CEAA Re:
Ajax Mine Project – Environmental Assessment (“EA”) Process,
Weytk, We are in receipt of your letter dated January 15, 2016 in which you have informed us that the Agency received the Environmental Impact Statement/Application on January 14, 2016 for technical review. Please find our responses outlined below. As you are aware, our offices were closed over the winter break recently re-opening. In our most recent letters (November 10th and 30th, 2015) to you we had indicated our express interest in having a Nation to Nation table and process developed. We have given your new government time to organize and mobilize however it would seem as though you have chosen to be Coyotes and not the studious Porcupine (see letter November 30th), as our requests have been to no avail and no response has been sent to our leadership to date. We find ourselves without a Nation to Nation table where we could address the many issues we have raised throughout this process. Consultation Approach Thank you for sharing your Consultation Approach with us and your recent revisions. We had intentions of collaboratively reviewing and developing this document at a Nation to Nation table, however find ourselves reduced to merely reviewing and providing input. Here are our comments by section on the Consultation Approach to date. We reserve to right to provide additional comments (updated November 2015):
Introduction o
The Consultation Approach identifies that it will consider information generated through the SSN’s Project Assessment Process, however the manner and means by which it will achieve this objective are ill described. There is no clear and transparent process on how the information gathered through SSN’s Project Assessment Process will be used in the overall assessment of the Project;
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SSN’s feedback on this Approach- while this document may be a living document, SSN maintains that it is of the utmost importance that consultation is clearly defined and
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measurable goals and objectives are set early in the process. This should include supporting activities and realistic schedules to reach these objectives, including adequate funding to participate in these activities. The Consultation Approach as currently set out lacks a clear connection between consultation objectives and activities and is not supported by a schedule or capacity funding. As a result, SSN does not support the Expected Result of high level of confidence that the federal Crown will fulfill its duty to consult or incorporate SSN’s views into the federal EA report, or that SSN will have a positive experience in the EA Process;
Project Descriptiono
SSN believes it is a failure on the Environmental Assessment Process to include additional project components during the Application Review which have not been included appropriately in the Application Information Requirements / Environmental Impact Statement Guidelines. Specifically, the addition of the natural gas supply pipeline was not included in the AIR/EISG and we are not confident that the Application will adequately describe or assess these impacts;
Federal department/agency responsibilities-
SSN is not confident that the proposed consultation approach has been designed to allow each federal department and agency to undertake and fulfill adequate consultation and accommodation. The Consultation Approach does not include a clear description of the role and responsibilities of each of the federal departments/agencies, nor does it clearly describe and detail their duty when it comes to consultation and most importantly accommodation regarding the decisions or actions. The list provided also does not include any ministries or bodies that are mandated to deal with Human Rights issues and infringements (e.g. Human Rights Commission);
SSN Representatives: o
The following representatives will also be participating the EA and SSN Project Assessment Process and are Key Contacts: Councillor Jeanette Jules (TteS), Councillor Darrel Draney (Skeetchestn), Travis Marr (Information and Referral Manager SSN), Mike Anderson (Skeetchestn Natural Resources Manager), Jim McGrath (TteS Natural Resources Manager);
Crown Consultation Objectives: o
Canada has mandated that it will implement the United Nations Declaration on the Rights of Indigenous Peoples (“UNDRIP”). There are no consultation objectives which directly connect the implementation of these articles to the Consultation Approach or
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Assessment of Impacts to Rights in the Environmental Assessment Process. SSN is interested in collaboratively developing a consultation approach and Assessment methodology which respects and implements the UNDRIP. As federal consultation coordinators, we call on CEAA to include a representatives from the Ministry of Indigenous & Northern Affairs and identify Human Rights mandated ministries and bodies (e.g. Canadian Human Rights Commission) to ensure the UNDRIP 1) objectives are developed and implemented and 2) clearly describe and outline how impacts and infringements upon the UN Declaration Rights will be included in this assessment; o
Canada has mandated that it will ensure that environmental assessment legislation is amended to enhance the consultation, engagement and participatory capacity of Indigenous groups in reviewing and monitoring major resource development projects. As such, until Canada has developed such amendments and applied them to the participation of SSN in this review, the review process should be suspended;
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Determination of how SSN would like to be consulted- The objective of merely determining how SSN would like to be consulted during the process and gathering input is inadequate. SSN has clearly articulated on numerous occasions its interest in being consulted on a Nation to Nation basis. This request (as described in our letters November 10 & 30) has gone unanswered. It is not only incumbent upon the Crown to ascertain input but to act upon that input. Provision of information that does not affect the process does not constitute consultation at the deep end of the Haida spectrum. We call on Canada to re-develop this objective so that SSN is not only afforded the opportunity to provide input but that this input is appropriately reviewed, assessed and responded to with responses being reviewable by SSN.
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To obtain information to understand potential effects on CULTRP- SSN has continuously stated that an assessment of the proposed project and its impacts must be more that this narrow definition as described in the Canadian Environmental Assessment Act. We know that the current description and assessment of this VC (CULTRP) in KAM’s Application is misleading and inadequate (issues raised in our November 10, 2015 letter) but we have yet to see 1) how the existing information reported to date will be revised (i.e. KAM’s Application); 2) how the supporting consultation activities will specifically address this objective. It is also erroneous to state an objective where SSN is to provide information when no additional capacity funding has been allocated, and time restrictions and limitations have been noted as pre-existing issues on the collection of that information.
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Identify asserted Aboriginal Rights, including Title…- the Aboriginal Rights should include both the Rights under the UNDRIP, and cross referencing with those listed in the SSN’s Title Case filed September 21, 2015 as foundational components, SSN will
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have further information on this list of rights it is developed through the SSN’s methodology for the assessment of the proposed project. o
Identify asserted …- SSN believes that the methodology that CEAA will utilize in the Assessment of Impacts to Rights must be a part of the consultation process, CEAA must consult the SSN on these methods and that not only the proposed project itself but the EA process and other consultation activities must be assessed in order to ensure that the review of this project has upheld directions given under Canada’s new mandates.
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Identify asserted…- This objective is ambiguous, and does not include the definition of “extent possible”, or the expectation that will be placed on the proponent by the federal government to ensure the project is planned to avoid, mitigate, or accommodate adverse impacts to Aboriginal rights.
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An objective of consultation with SSN should be based on the free prior and informed consent of the SSN before project approval as per UNDRIP Article 32
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“Indigenous peoples have the right to determine and develop priorities and strategies for the development or use of their lands or territories and other resources. 2. States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources. 3. States shall provide effective mechanisms for just and fair redress for any such activities, and appropriate measures shall be taken to mitigate adverse environmental, economic, social, cultural or spiritual impact.
CEAA must develop a consultation objective relating to UNDRIP Article 26
Stk’emlupsemc te Secwepemc Nation
“Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired. 2. Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired. 3. States shall give legal recognition and protection to these lands, territories and resources. Such recognition shall be conducted with due respect to the customs, traditions and land tenure systems of the indigenous peoples concerned.”
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o
Document all consultation activities- documentation must include a clear cross reference between issues raised by the SSN, how that issue was reviewed and what effect or impact it had on either the proposed Project or Process, whether or not the response by either Crown or Proponent was deemed appropriate or adequate by the SSN and a compilation of all outstanding issues including the summary of the process which was used to reconcile the issue. An objective of documenting for the sake of documenting information does not adequately address the purpose of this documentation.
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Collaborate with SSN on …- while collaboration may be an objective of CEAA there is a disconnect between the consultation objectives and activities that are listed and the deep level of consultation that is warranted for this process and a project with significant adverse impacts.
SSN’s Consultation Objectives- the following is a preliminary list of objectives which remains under development: o
Development of a Nation to Nation table to address consultation and accommodation on the proposed Ajax project;
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Development of a Chief to Chief table for final review of issues and decisions pertaining to the project;
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Development of an assessment of impacts on SSN’s Rights which is founded on the UNDRIP and SSN’s Rights including those listed in the SSN Title Case (September 21, 2015);
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Development of an assessment of impacts that assesses both the proposed project and the Environmental Assessment Process in relation to the UNDRIP;
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Full participation of CEAA and Federal Ministries in the SSN Project Assessment Process including (but not limited to):
Development of an agreement (minimum of 2 weeks prior) on the timing, role and confidentiality of information surrounding attendance at the SSN Panel Hearing (May 2-6);
Review and integration of the SSN’s Decision Package into the report for Ministers including an assessment on the Crown’s responsibility to obtain free, prior and informed consent prior to approval of the project;
Submission of the SSN’s Decision Package in its entirety to the Ministers. This package will include the SSN’s decision on the following question:
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o
““In recognition of the Declaration of Title to Pípsell (Jacko Lake & its surroundings), a cultural keystone area with significant spiritual and historical importance to the Stk’emlupsemc te Secwepemc Nation, does the Stk’emlupsemc te Secwepemc Nation give their free, prior and informed consent to change the land use objective to allow for development of the lands and resources for the purposes of the Ajax Mine Project in accordance with the Stk’emlupsemc te Secwepemc Nation’s laws, traditions, customs and land tenure systems supported by the following five (5) assessments: Indiginomics, Health & Wellness, Timcw, Integrity and Respect (Cultural Heritage);
SSN Information Requests- review and evaluation of SSN Information Requests which may include requests which require suspension of the CEAA process to allow for the collection, review and evaluation of additional information and/or the resolution of outstanding issues and related consultation activities; and
Development and implementation of collaborative processes and connections between CEAA and SSN Project Assessment Process;
Recognition by the Crown of Secwepemc laws, traditions, customs and land tenure systems and a reconciliation of this with current rights granted to both the Province of BC and KGHM Ajax.
Proposed Consultation Activities & Annex 1o
A clear connection between each of the consultation objectives and activities must be made in order clearly delineate which activities support which objectives;
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Provision of “opportunities” to provide input is not in keeping with the duty of the Crown in its responsibilities at the deep end of the spectrum;
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Opportunities to meet regularly- SSN has informed you that this warrants the collaborative development of a detailed schedule under which each of the supporting consultation activities will be outlined in order to ensure that SSN has the capacity to respond to information and opportunities as they present themselves throughout this process. Again, no additional funding has been provided by CEAA to support any additional consultation activities for Application Review with CEAA. The previous funding was used entirely during the Pre-Application phase which extended over 5 years;
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o
The SSN does not agree that activities which focus on the use of EA mitigation measures related to environmental effects should be used to accommodate SSN’s concerns, this foundational error in your assessment (which is based on environmental effects in your legislation) leads to erroneous conclusions and descriptions of impacts;
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Activities supporting collaboration on the identification of potential adverse impacts to rights and generation of accommodation as appropriate must be clearly outlined and described in this plan;
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Provision of guidance to the Proponent- SSN would like a clear description on the types of guidance which the Crown may provide to the Proponent including a clear description on the Crown’s expectations of the Proponent when it comes to consultation and accommodation;
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SSN Panel Hearing- SSN would like confirmation that all appropriate federal Ministries’ representatives will participate in the SSN Panel Hearing process and that participation is clearly described and detailed in an agreement at least 2 weeks before the Hearing (May 2-6);
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CEAA should do more than “consider” the SSN’s decision package in the Comprehensive Study report. The following steps must be taken by CEAA:
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The decision package should be evaluated & assessed.;
A response should be provided to SSN as to how the package has been included in CEAA’s decision report (including the Assessment to Impact on Rights).;
SSN should be afforded the opportunity to respond; and
A Chief to Chief meeting should be scheduled to deal with any outstanding issues regarding the process and packages before it is submitted to Ministers for their review;
Updated Consultation guidelines- Please provide SSN with a copy of the consultation guidelines which pertain to your process. SSN also requests that a consultation objective include the revision of these guidelines to include updates as per the recent mandated direction;
Aboriginal funding program- SSN again requests further and additional capacity funding to support participation in the consultation activities;
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Expected Results- SSN does not agree with the expected results listed in the Consultation Approach. We have pointed out the numerous deficiencies in the Consultation Approach which do not adequately detail or describe this process in order to give confidence that this will be the result.
CEAA’s Letter dated January 15, 2016 The Agency owes SSN a much higher level of consultation than simply to hear SSN’s views regarding the assessment of impacts, effectiveness of mitigation measures, proponent’s efforts, or other aspects related to traditional knowledge. We have outlined in our evaluation of the Consultation Approach the many deficiencies which do not support deep consultation in a Pre-Declaration area. The timelines for comments with regards to the Application or the Trout Children Story addendum are not acceptable to the SSN. With specific respect to the Trout Children Story, SSN has clearly articulated that information relating to this addendum must be continuously updated and amended as further information is available through the SSN’s Project Assessment Process. Key SSN Project Assessment Process dates are listed below and fall completely outside of the Public Comment Period. We have no confidence that further information supplied through our process or information requests that are generated from our process will be included in the EA Process (e.g. information requests as a result of the Panel Hearing would not be able to be included).
May 2-6, 2016
SSN Panel Hearing @ Tk’emlups
May 23-27, 2016
SSN Panel Decision/Recommendation Week @ Tk’emlups
June 9, 2016
SSN Joint Council Special Meeting- Project Assessment Decision
June 21, 2016
SSN Decision Public & Ceremonial Release @ Pípsell (Jacko)
Fish Habitat Off-setting Plan We would like to once again clearly state that the proposed Inks Lake fish habitat off-setting plan is not supported by the SSN. SSN does not believe that it is appropriate to “Off-Set” the loss of the arm of Jacko Lake or diversion and loss of Peterson Creek and further objected fully to the plan to raise and stock fish in Inks Lake. SSN attended the Fish Habitat Off-setting Plan meeting (November 24, 2015) and pointed out a number of inadequacies in the characterization of Jacko Lake spawning area and uses. SSN does not consider the loss of the Spring Fishery during operations to be temporary. 23 years of “temporary non-use” of the trout fishery will affect more than one generation of SSN members which is a significant time period for the loss of knowledge and impacts to SSN’s cultural use in the area. SSN has raised the concern that as a result of not separating the Jacko Lake inflow/outflow Creeks from the lake habitat the environmental effects are not adequately described on the appropriate spatial or temporal scales to assess impacts on Aboriginal rights.
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SSN has articulated that there is current use and living memory within the communities of the Spring Trout Fishery in the Inflow and Outflow of Jacko Lake, with large volumes of fish being harvested. SSN used to manage streams by removing areas of beaver dams and planting specific species of plants to enhance the streams and shores for fish habitat. Increasing variability in populations and salmon runs are causing significant impacts on communities where it is necessary to diversify protein sources including an increasing dependence on Trout from lakes as a quality dietary protein. The objective of the SSN is to restore the spring fishery on both the inlets and outlets of Jacko Lake. SSN has an issue with the volume of water coming out of Kamloops Lake and its impact on salmon habitat and populations. This water use in conjunction with effects of climate change and the cumulative impacts of current and proposed (e.g. other mines in the Thompson watershed) water calls into question how the project would align with recommendations from the Cohen Commission Report. The SSN also has issues with the water intake location and impacts on the foreshore. More information is needed on intake location specific to groundwater flows on the foreshore and potentially foreshore mapping. SSN also has repeatedly requested that the project design include the use of Kamloops tertiary treated water for the operation of the mine which has not been adequately explored, discussed or excluded to date. The SSN will not support the water permit until cumulative water impacts model is developed to model water flows and current water use through the Thompson system. KGHM is currently exploring alternative Fish Habitat Off-Setting options and SSN believes that it is incumbent upon DFO to be involved in all discussions regarding these alternatives moving forward. We would propose that we include discussion based on the issues raised in this letter and our forthcoming SSN 360 Evaluation (expected for February 2, 2016) in our meeting scheduled for February 2, 2016.
Kukwstsétsemc,
Sunny LeBourdais Project Coordinator Stk’emlupsemc te Secwepemc Nation
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cc.
Clyde Gillespie, KGHM Nicola Banton, KGHM Ryan Deneault, KGHM Todd Goodsell, KGHM Scott Bailey, BCEAO Lisa Christensen, DFO Rob Johnstone, NRCan Tim Archer, MPMO Stephen Sheenan, Environment Canada Carl Alleyne, Health Canada Steve Maricle, FLNRO Andrew Klassen, FLNRO
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