Review of Shell s Responses to the MSES Technical Review for the Jackpine Mine Expansion Project and Pierre River Mine Project

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1 Review of Shell s Responses to the MSES Technical Review for the Jackpine Mine Expansion Project and Pierre River Mine Project Prepared for Mikisew Cree First Nation GIR Prepared by

2 List of Contributors Project Management Senior Review Vegetation & Reclamation Wildlife, Biodiversity & Regulatory Setting Air Quality Water Quality Hydrology Hydrogeology Fisheries & Aquatic Health Monitoring & Follow Up, and TK, Public Consultation, Socio-economics Regional Change Analysis Integration & Report Writing Ms. Shannon Gavin, M.Sc., P.Biol. Dr. Petr Komers, P.Biol. Dr. Petr Komers, P.Biol. Dr. Sheri Gutsell Dr. Troy Whidden, P.Biol. Mr. Kris Siriunas, P.Eng. Dr. Mike Vandermuelen Dr. Stefan Kienzle Mr. John Balfour, M.Sc., P.Eng. Mr. Tom Boag, M.Sc., P.Biol. Dr. Petr Komers, P.Biol. Mr. Zoran Stanojevic, M.F. Ms. Shannon Gavin, M.Sc., P.Biol. Page i

3 Executive Summary The Mikisew Cree First Nation GIR (Mikisew Cree) requested that Management and Solutions in Environmental Science (MSES) provide advisory support at a workshop held January 27-28, The workshop was partly in response to MSES s technical review, submitted in July 2009, of Shell Canada s (Shell) Environmental Impact Assessment (EIA) for the Jackpine Mine Expansion (JPME/JEMA) and Pierre River Mine (PRM/PRMA) Oil Sand Projects. Additional meetings were held between MSES hydrology and air quality experts with Shell representatives and consultants to follow up with issues and concerns raised in the workshop. The questions and issues raised in the MSES technical review, workshop and additional discussions culminated into a formal response document and meeting minutes provided by Shell in September In this review, we focus on evaluating Shell s responses to the questions and requests raised in our initial July 2009 review. The commentaries and questions posed throughout this review evaluate Shell s responses based on technical quality, completeness of the response, and scientific rigour used to justify conclusions and in design of follow up programs. Overall, the questions seeking concrete and factual information have not been answered. Shell s responses are often not meaningful as they are undefined platitudes about how Shell intends to discuss the issues with the Mikisew Cree or how the information requested was already provided in the EIA. We already know the results of the EIA and we did not find them helpful in resolving the issues; it is, therefore, not meaningful to refer us back to the EIA. As to Shell s willingness to discuss the issues, the Mikisew Cree have provided many comments and suggestions (including those provided in MSES s technical review) throughout the past years of communicating with Shell, but there is no evidence that Shell incorporated these comments in any substantive manner. The discussion with Shell appears to be a rather one directional flow of information, whereby Shell informs the Mikisew Cree about its intents and approaches, but does not actually absorb any substantive feedback. Highlights from discipline specific concerns are provided below (the Discipline is identified in parentheses): 1) Although Shell says that stakeholders will have the ability to comment on proposed monitoring plans, Shell has not demonstrated just how it intends to integrate such comments. Experience to date shows that Mikisew Cree s comments on Shell s existing projects are not heeded (Public Consultation, TEK, & Community-based Monitoring). 2) There is no example in the Oil Sands region where traditional resources were re-established after disturbance to a level similar to that which existed prior to disturbance. Shell does not provide any in its response. Shell also does not provide any tangible details on how future success of re- Page ii

4 establishing traditional resources would be measured (Public Consultation, TEK, & Communitybased Monitoring). 3) Shell rated the fragmentation impacts as moderate. However, Shell did not provide credible information on how much fragmentation will continue and for how long the Mikisew Cree will need to suspend their practice of Treaty Rights in the area. Shell has not assessed the impact of suspending the Treaty Rights for several human generations (TLU & Socio-economics). 4) Shell has not assessed how ecosystem shifts (lowland to upland) will impact Mikisew Cree traditional land use activities (Wildlife). 5) No rationale is provided for Shell s qualitative estimate of having moderate confidence in the data and predictions in light of unproven reclamation methods. Shell claims that reclamation is ongoing research, but Shell fails to acknowledge that this research has been taking place for over 40 years resulting in no concrete definitions or benchmarks for successful reclamation with respect to wildlife and wildlife habitat (Wildlife). 6) Given Shell s response it remains an enigma as to what, exactly, will form a basis of comparison for any future (or even current) wildlife monitoring programs. Without concrete benchmarks, how will Shell know whether or not there are project effects when monitoring wildlife? (Wildlife). 7) Shell does not appear to acknowledge that maps of leases in the Alberta Oil Sands Region indicate that the vast majority of their RSA have been or will be directly or indirectly impacted by additional development and associated infrastructure. Satellite image analysis could help Shell to integrate the pace and scale of development in their regional and cumulative impact predictions. Shell s assertion that only 13% of the RSA will be disturbed by planned projects is incorrect, as is the assertion that reclaimed shrublands will act as yellow rail habitat (Wildlife). 8) The presence of large numbers of non-native species in human-disturbed areas such as those in the project area, shows that removing non-native species in reclamation is difficult to impossible, indicating that the effects are likely more significant than predicted (Vegetation). 9) The areas burned within the last 20 years are simply young forests and should be classified as to their ecosite phase or wetland type. Incorrectly categorizing these areas as burn results in an underestimate of the losses of native ecosites and wetlands. Similarly, categorizing some areas simply as burn undervalues areas of high, moderate, and low value for traditional use, rare plant potential, biodiversity, forest and wildlife resources (Vegetation). 10) Shell has not verified the landscape metric predictions carry over into field observations, and there was no test for correlating metric calculations and species richness. Shell claims that theoretical Page iii

5 verification is not the purpose of an EIA and that such an exercise would not add value to the EIA. However, given that the landscape metric predictions are an integral part of the EIA it is not clear why Shell would avoid testing them. As such, Shell has not provided a substantial reason for not verifying landscape metric predictions in the field (Biodiversity). 11) Approximately one third of the streamflow in the Athabasca River below Fort McMurray is produced in the Rocky Mountains. It is, therefore, inappropriate to suggest that the streamflow regime observed at the Bow River at the Banff gauging station is comparable to the Athabasca River below Fort McMurray. Not only are the respective watersheds very different in terms of size, climate regimes, streamflow regimes, and streamflow sources; the trends are also completely different in terms of mean, minimum, maximum and seasonal trends. It is, therefore, not meaningful to compare or transfer trends between them (Hydrology). 12) We disagree with Shell s response that the EIA complied with the terms of reference. The mining and permanent destruction of portions of the Pleistocene Channel Aquifer (PCA) were not identified as a negative, permanent, irreversible impact. While reference is made to dewatering the PCA, dewatering is normally taken as a temporary, reversible effect which is not the case here (Hydrogeology). 13) We still consider the modeling done for the EIA to be deficient because it does not identify the temporal and spatial scale of all expected groundwater contamination resulting from the Project. Concentrations predicted for the far future case 100 years after mine closure were still increasing in some instances (Hydrogeology). 14) Shell s response highlights the deficiency of the whole EIA process in that it precludes generating new scientific understanding. Where effects are deemed to be negligible (but non-zero), can they act in unexpected ways to yield non-negligible effects? Linkages are deemed invalid because the assessment procedure rates the effects as negligible and, therefore, there is nothing to carry forward for further analysis. This precludes recognizing unexpected effects that might result from cumulative or synergistic processes. Shell s response does not address this issue (Water Quality). 15) Shell states that mitigation measures have proven effective to date in the oil sands. The response is partly true; however, to our knowledge, none have proven success (met compensation targets) in the oil sands to date. For example, fishes have colonized the CNRL Horizon NNLP Compensation Lake but it is too early in the evolution of the success of no net loss plan (NNLP) lakes to make this claim in the oil sands (Fisheries). 16) Shell purports that their sample size of 32 fishes across 7 species is adequate and appropriate for an EIA based analysis. The walleye and whitefish sample sizes are the minimum to qualify as a large Page iv

6 sample (n=10). However, the remainder is not sufficiently rigorous to determine that there is, or is not bioaccumulation of contaminants in fishes in the Lower Athabasca River (LAR) and the overall health of fishes (and by inference the aquatic ecosystem) (Aquatic Health). 17) Although regulatory modelling is conservative, any predicted air quality exceedances should be given more attention and be used in the overall air quality management in the oil sands area. Shell s response that, any exceedances are only estimates and are not planned downplays the potential seriousness. (Air Quality). 18) Shell states that traditional use of the land can continue much as it does today. There is a myriad of deficiencies associated with this answer. For example, Shell did not do an assessment of how traditional use of the land is being done today; consequently, Shell cannot comment on how this will be done in the future. Moreover, Shell acknowledges that the landscape cover and topography will change, but asserts that these future landscapes will support many traditional plants, beaver will likely migrate in, and that habitat for moose and furbearers will be greater. The only evidence for reclaimed landscapes existing to date indicates that animals in habitat process affected waters are unhealthy, and that moose, furbearers, and traditional plants are less abundant (if existing at all) and less diverse on reclaimed sites than on undisturbed lands (Monitoring & Follow Up, see also Reclamation). 19) Shell claims that reclamation plans are appropriate to meet end land use targets. Shell has not yet provided information that would be helpful in defining what, from the Mikisew Cree point of view, the end land use targets might be. Shell has also not provided any concrete measurements and definitions of how mitigation success would be measured. Finally, Shell has not provided the evidence showing that the diversity and abundance of traditional resources on reclaimed sites would be similar to pre-disturbance conditions (Monitoring & Follow Up). 20) It is still not clear how the success of reclamation procedures will be measured over time. Shell does not indicate whether it will consider using similarity indices to compare pre- and post-development landscape in terms of species composition so that progress towards target ecosystems could be measured (Reclamation). 21) The number of plant species that the revised Reclamation guidelines recommend to indicate revegetation success is two orders of magnitude fewer than was found in the baseline LSA. Therefore, while it is true that some of the species recommended for planting in reclamation are traditional use plants, the number of these plants in reclamation sites will be far fewer than exists in native ecosites. (Reclamation). Page v

7 22) It is still not clear whether Shell intends to plant a larger number of plant species (i.e., beyond the few tree and shrub species listed in their revegetation plan) in each reclamation site during the initial stages of reclamation. Doing so would ensure that the diversity and composition within reclaimed ecosites and wetlands is similar to that of pre-development ecosites and wetlands (Reclamation). 23) As Shell has indicated, piping and shipping of exploited resources falls outside the scope of this current regulatory application. Shell does not acknowledge that this added infrastructure and its induced effects to the environment and socio-economics of the region are well within the area of concern of the Mikisew Cree and should therefore be within the scope of the application. Further discussion is required, and input from regulators when scoping the assessment of cumulative or induced project effects (Regulatory Setting and Cumulative Effects). 24) Shell provides only over-arching conceptual information pertaining to the C&R Plan. Shell does not commit to concrete targets for reclamation, wildlife recolonization, revegetation and wetland reestablishment. Clearly, given the amount of research commitments by Shell and other operators there must be some concrete information to build concrete targets on locally or regionally. (Regulatory Setting and Cumulative Effects). Page vi

8 TABLE OF CONTENTS PAGE 1.0 INTRODUCTION Project Description Review Approach Document Structure OVERARCHING COMMENTS: MSES COMMENTS TO SHELL S RESPONSES ADDITIONAL COMMENTS LITERATURE CITED Page vii

9 TABLE OF CONTENTS (cont) PAGE LIST OF TABLES Table 1: Streamflow Trend Statistics for the Athabasca and Bow Rivers. Trends are Expressed in % of Mean Annual Flow LIST OF APPENDICES Appendix A: Hydrology Comments from February 2010 Meeting Page viii

10 1.0 Introduction The Mikisew Cree First Nation GIR (Mikisew Cree) requested that Management and Solutions in Environmental Science (MSES) provide advisory support at a workshop held January 27-28, The workshop was partly in response to MSES s technical review, submitted in July 2009, of Shell Canada s (Shell) Environmental Impact Assessment (EIA) for the Jackpine Mine Expansion (JPME/JEMA) and Pierre River Mine (PRM/PRMA) Oil Sand Projects. Additional meetings were held between MSES hydrology and air quality experts with Shell representatives and consultants to follow up with issues and concerns raised in the workshop. The questions and issues raised in the MSES technical review, workshop and additional discussions culminated into a formal response document and meeting minutes provided by Shell in September In this review, we focus on evaluating Shell s responses to the questions and requests raised in our initial July 2009 review. The commentaries and questions posed throughout this review evaluate Shell s responses based on technical quality, completeness of the response, and scientific rigour used to justify conclusions and in design of follow up programs. MSES maintains that it is essential that scientific rigor be employed when considering the potential impacts of oil sands projects, and in determining the potential success of reclaiming the land for future generations. 1.1 Project Description Shell prepared one EIA evaluating impacts associated with both the JPME and PRM projects. Shell is applying for an amendment to the Jackpine Mine-Phase 1 approvals to increase bitumen production by 100, 000 bbl/cd which would increase the bitumen production capacity to 300,000 bbl/cd. JPME will be located adjacent to the currently approved Jackpine Mine-Phase 1, approximately 70 km north of Fort McMurray, Alberta, within Townships 95, 96, and 97 and Ranges 9 and 8 W4M on the east side of the Athabasca River. The expansion will include additional mining areas and associated processing facilities, utilities, and infrastructure. Shell is also applying for an approval to create and operate a new mining area, PRM, which will produce up to 200,000 bbl/cd of bitumen. The PRM will be located on the west side of the Athabasca River and will include a new mining area, associated processing facilities, utilities, and infrastructure. The eastern limits of the PRM extend to less than 1 km from the Athabasca River. 1.2 Review Approach MSES has been advised by the Mikisew Cree that maintaining traditional land uses and the ability to carry on traditional resource based activities are part of their Treaty rights and include activities such as Page 1

11 hunting, fishing, and berry picking, within their traditional territory, of which the local study area (LSA) and regional study area (RSA) are a part. Given the Treaty rights of the First Nations in Northern Alberta, the questions posed to environmental mangers and policy makers are unequivocal: how much will the deprivation of Treaty rights grow in the future and how and when will this deprivation be mitigated? The questions seem simple, but the devil lies in the detail. In order to fully answer this question, measurements are needed to provide quantifiable information on how much of the original traditional resource is available to date, and how much will be left once planned developments go ahead from construction to operation and decommissioning. These measurements must be the foundation of testable questions, much like in the process of environmental monitoring described by Burns and Wiersma (2004). In that process, testable questions are developed, seeking measurable parameters that are subjected to rigorous statistical analyses. 1.3 Document Structure The document is structured based on the tabular format used within Shell s response document. MSES comments were added to the table in a fourth column and address each response provided by Shell according to the specific discipline headers. Comments in bold represent additional questions, recommendations or highlights that the Mikisew Cree may wish to use in further discussions with Shell. 2.0 Overarching Comments: A general observation in Shell s responses is that the questions seeking concrete and factual information have not actually been answered. We have noted the absence of factual information in the workshop conducted in January and we highlighted the need for written concrete responses. Shell s response document does not help a great deal in resolving the need for concrete evidence. The general theme of Shell s responses is one where no evidence is presented for the claims made. Responses are often not meaningful as they are undefined platitudes about how Shell intends to discuss the issues with the Mikisew Cree or how the information requested was already provided in the EIA. We already know the results of the EIA and we did not find them helpful in resolving the issues. Hence, we asked for clarification in our review. By not discussing concrete actions and data, Shell succeeds at mystifying the very concepts that require hard evidence such as impacts to wildlife abundance will be negligible because habitat replacement will occur during reclamation. A case in point is the line of responses in the Monitoring and Follow-up section, Questions 7a to d. MSES asked from Shell to provide evidence for how wildlife habitat utilization has been re-established, Page 2

12 similar to that which existed prior to disturbance, anywhere in any operation of the Oil Sands region. Shell did not provide the evidence requested. Consider Shell s impact assessment where the conclusion is reached that (Vol. 5, Sec , p ): In contrast to the impact assessment, Shell s response to the MSES questions implicitly supports the observation that indeed wildlife habitat utilization has not been re-established anywhere in the Oil Sands region. Moreover, this response speaks to the weak foundation of Shell s impact assessment, namely stating that wildlife re-colonization is not predictable and that effective habitat has not been reestablished in over 40 years of Oil Sands operations. In other words, Shell cannot provide evidence to support its impact assessment which states that impacts on wildlife will be negligible and reversible. In addition, there is concern that Shell s discussion of Project impacts is deficient in other disciplines as well. For example, Shell s hydrogeology assessment only evaluated the impacts of mining and destroying the Pleistocene Channel Aquifer (PCA) on baseflows to surrounding surface water systems. It does not specifically recognize or discuss the value of this aquifer or the fact that mining would irreversibly alter it permanently making it unavailable as a future water supply source for drinking water and to provide baseflows. While reference is made to dewatering the PCA, dewatering is normally taken as a temporary, reversible effect which is not the case here. Similar to absence of data in the biophysical disciplines, Shell does not appear to provide concrete information on how it integrated TLU information and the comments and concerns heard from the Mikisew Cree. Repeatedly, Shell states that it is willing to discuss and listen to comments from the Mikisew Cree, but in no case did Shell provide evidence when asked about just how the Mikisew Cree s concerns were integrated in the strategic and operational planning of the proposed projects. Please recall the letter from Shell to the Mikisew Cree GIR, dated September 15, 2010, regarding Summary of Shell Albian Sands Environmental Reporting Meeting January 20-21, In the letter Shell rebuts each and every comment that was intended to clarify the actual progress of reestablishing ecosystem processes. In that letter, Shell could have taken the opportunity to assist the Mikisew Cree in understanding the impacts on traditional resource use and in discussing how Shell could Page 3

13 help to address the concerns of the Mikisew Cree. Instead, Shell simply pointed to how their work complies with regulatory requirements and what in Shell s opinion is the right thing to do. In that letter, Shell s responses do not provide support for their claim that the Mikisew Cree concerns are integrated in project planning. Page 4

14 3.0 MSES Comments to Shell s Responses Topic: Public Consultation, TEK and Community-Based Monitoring 1 Please provide exact details of various discussions and meetings held with local communities and how the resolution of the concerns and issues was incorporated into project development impact mitigation and proposed monitoring. 2 Please provide information on future plans to maintain the community consultation process following completion of the EIA review to ensure that the TR holders will have an appropriate forum for expressing their views on the ongoing development, operation, and reclamation of the Project. We recommend that the Mikisew Cree propose suitable CBM of various projectrelated activities on the land. Communities could offer TEK to Shell as well as solidify a strong partnership in sustainably managing and assessing the TR on the land. Since the announcement of the JPME and PRM projects, Shell has met regularly with the MCFN and other First Nations to identify potential impacts, issues and concerns. The following types of meetings have been held: open houses, quarterly GIR meetings, Advisory Committee meetings, technical review meetings and reports, NNLP meetings, site visits, etc. All of these formal meetings have notes that are sent out in Draft for review by stakeholders and then finalized. MCFN will have copies of all of these detailed notes. A summary of these meetings and discussions is provided in the bimonthly reports provided to both MCFN and AENV. These forums have been used to identify issues and concerns of the MCFN and other aboriginal stakeholders. Examples of this include; the opportunity to discuss and comment on the EIA ToR; incorporation of TEK and TLU into the EIA; inclusion of wildlife corridors (100 m buffer zone along Muskeg River) to ensure genetic connectivity; adjustment of the corridor monitoring plan to expand and provide more information; adjustment of the water drainage plan to balance the need for ore recovery with the need to maintain the lower reaches of the Muskeg River and Kearl Lake. Going forward, stakeholders will have the ability to comment on the proposed monitoring plans. There is also additional time to present information as part of the regulatory process to ensure that all issues and concerns are identified. In addition, Shell is willing to discuss further mitigation and compensation measures as part of a negotiated agreement. Shell's MRM development has been in operation since Through this time, we have continued to build relationships with communities and consult regularly. We have: been active members and funders of the MCFN GIR, met regularly with our Advisory Group since its inception, held regular open houses and meetings with leadership, consulted and continue to consult with land users (trappers, and other rights holders) and First Nations and Métis groups, as required by provincial regulators for our ongoing developments, permits and approvals, signed agreements with the MCFN, committing Shell to continued consultation and mitigation efforts. Shell will continue to consult with MCFN and provide opportunities for TR This response does not answer the question about how Mikisew Cree concerns were integrated into project planning and management. Although Shell says here that stakeholders will have the ability to comment on proposed monitoring plans, Shell has not demonstrated just how it intends to integrate such comments. Experience to date shows that Mikisew Cree s comments on Shell s existing projects are not heeded. Shell pointed out that it signed agreements with the Mikisew Cree before and that Shell will continue to consult with the Mikisew Cree. However, this does not answer the question about what the appropriate forum should be in developing a community based monitoring program. This response also does not address in any way how Traditional Resources would be managed sustainably in partnership with the Mikisew Cree. Page 5

15 Topic: Public Consultation, TEK and Community-Based Monitoring 3 It is important to know whether aboriginal populations were given the opportunity to participate in the planning or design stages and in establishing the biodiversity indicators and assessments for this application. Please provide these details. 4;6 Q4: The assessment of TR was not done specifically for the local area. How does this accurately convey TR in the local communities and the extent of their TR if Shell has not assessed this locally? Q6: How can Shell assess the impacts of the Project on TR accurately if there are gaps in the information? 5 We recommend that the Mikisew Cree request that a complete assessment of TLU, including the Mikisew Cree and other FNs, be conducted by Shell. holders to express views on operation, development and reclamation. Species-level biodiversity indicators (i.e., KIRs for the Fish and Fish Habitat, Terrestrial Vegetation, Wetlands and Forest Resources and Wildlife and Wildlife Habitat assessments) were based on documentation (e.g., FMFN 1994) that identified many of the species as being of value and importance to local Aboriginal communities. Reference: FMFN (Fort McKay First Nations) There Is Still Survival Out There: A Traditional Land Use and Occupancy Study of the Fort McKay First Nations. Arctic Institute of North America and Canada Alberta Partnership Agreement in Forestry. Fort McMurray, AB. 129 pp. Interviews were conducted with directly-affected local trapline holders. Early in the EIA process, FMFN, ACFN, and MCFN indicated they wanted to arrange their own studies. Past EIAs were reviewed for relevant information relating to traditional resources and land use. MCFN information relating to area of traditional lands, and concerns relating to loss of land for activities, and potential effects of development on air, water, wildlife, and fish were considered in the EIA. FMFN and ACFN provided additional information on their traditional resources and activities which were consistent with what was considered in the EIA. Shell believes the TLU assessment and EIA assessment is accurate based upon the available information, and our experience in the Oil Sands Region. PCO4 identified the process to collect TLU and traditional resources information for the assessment. Shell is willing to discuss this with MCFN and consider any additional information they may have that identifies further gaps. Shell is still open to gathering TEK/TLU information from MCFN, as proposed initially in Answer combined with 4 above See comment under question 4. 7 The proponent has committed to continuing the dialogue with the aboriginal populations to learn their viewpoints at suitable times. However, at the EIA stage, the proponent and stakeholders should have discussed issues so that they can be duly incorporated within the EIA. Why weren't these discussions completed prior to Shell applying to the regulatory authorities? The EIA process commences with the Terms of Reference being established by AENV (after having received comments from interested stakeholders including First Nations), and continues through to the conclusion of public hearings before the joint federal provincial review panel. This EIA process has been ongoing since 2007, throughout which time Shell and MCFN have continually been engaged in discussing issues. In particular, in late April and early May, 2007, Shell met with MCFN (and other Aboriginal Groups) and Crown agencies to discuss various aspects of the EIA, including methodologies and First Nation concerns and questions. Shell uses one study from fort McKay First Nation from 1994 to indicate how aboriginal populations were given the opportunity to participate in the planning and design stages for the biodiversity assessment. No examples of direct participation of First Nations are given which suggests that aboriginal populations were not involved in the planning and design stages of the Projects. Shell s response indicates that all the information necessary is in the EIA. This is contrary to our findings where we identified gaps in the information necessary to conduct an assessment of impacts on traditional resource use. We indicated our findings to Shell in the workshop held in January Shell does not address the gaps in its response. For a complete assessment to be done, it appears that an agreement should be in place. Moreover, Shell should ensure that the Mikisew Cree have the adequate capacity to develop the required TLU information. Shell does not provide the requested information on why issues brought forward by the Mikisew Cree were not incorporated into the design of the EIA. Shell s reliance on the terms of reference is invalid because the Mikisew Cree s comments on this and any other terms of reference were not incorporated; that is, the terms of reference do not adequately reflect the Mikisew Cree s concerns. Page 6

16 Topic: Public Consultation, TEK and Community-Based Monitoring 8 Can Shell provide examples of successful reclamation in terms of traditional resource use? If not, how can the Mikisew Cree be assured that reclamation will be successful, especially when there are gaps in the understanding of the TLU in the local area? We recommend that the Mikisew Cree request a detailed assessment about future developments on the land so that they can make appropriate decisions for future partnerships with industry. As a direct result of this consultation, Shell made the offer to First Nations to collect TEK/TLU for the projects. ACFN and FMFN have since provided this information. Consultation regarding issues of concern and potential impacts to MCFN are an ongoing process, as opposed to a discrete event. This process includes the dialogue and consultations taking place as part of this technical review exercise, discussions on impacts and possible mitigation or accommodation, and MCFN participation in all aspects of the regulatory process, including public hearings at which MCFN will have further opportunity to provide evidence to regulators regarding suggested approval conditions. Reclamation will be successful based on the holistic approach Shell has towards reclamation. Reclamation planning considers: Stakeholder consultations and other end land use requirements. Current guidelines and best practices. The types of land forms to be reclaimed (overburden dumps, tailings sand, dyke walls, tailings areas). The final slopes, aspects, moisture regimes and elevations provided by the closure drainage plan. The types and volumes of reclamation material available in a given year. Ecosite types typical of the region. Achieving equivalent Land Capability Classes to baseline conditions. The concepts provided in the plan will not change, but the details will change with adaptive management. Adaptive Management Establishing end land use objectives and continually reviewing and fine-tuning them. Early project planning (landform design, corrective initiatives, optimizing material availability, landscape level design e.g., watersheds, boundary areas, buffers and corridors). Field and operational experience, especially learnings from conservation (soil and plant propagules) progressive reclamation and compensation work, 30- year regional research. Regional cooperative research Development of guidelines and monitoring programs with operators and stakeholders. Reclamation Success Reclamation success achieved elsewhere in Alberta e.g., Foothills coal There is no example in the Oil Sands region where traditional resources were re-established after disturbance to a level similar to a level which existed prior to disturbance. Shell does not provide any in its response. Shell also does not provide any tangible details on how future success of reestablishing traditional resources would be measured. Page 7

17 Topic: Public Consultation, TEK and Community-Based Monitoring 9 More details are needed so that a gap analysis may be performed and future courses of action can be clearly demonstrated. 10 Please provide some details as to what the compensation measures might entail? To pass on TEK to future generations, FNs require the TR and land to showcase their cultural traditions. How will Shell ensure FN needs to maintain their Treaty Rights? mining. Success for oil sands reclamation is on a positive developmental trajectory based on industry results over past 30+ years. Successful reclamation includes creating functioning ecosystems typical of the boreal forest. When this is achieved, targets are expected to be met. Targets and benchmarks are being developed to measure how ecosystems are functioning, and when they can be considered for certification Traditional species typical of the boreal forest will be on the closure landscape, as they were at baseline conditions. Shell consults with the Reclamation Advisory Committee which receives input from First Nation stakeholders. Targets Government requires industry to provide reclamation bonding to ensure reclamation and Reclamation Certification takes place. Regulators are responsible for setting the regional targets that industry is required to follow for Reclamation Certification these targets and benchmarks will be provided at the landscape level and other levels as appropriate. These targets and benchmarks will be provided on a landscape level. The level of detail in the CC&R Plan is appropriate for the scale of an EIA. Table 15-1 Public Consultation Activities November 2006 to June 28, 2007 (Volume 1 of the EIA) provides a summary of consultation regarding the JPME and PRM projects for the regulators. Detailed notes have been collected from major engagements with MCFN and consistent with Shell's Consultation process, draft notes have been shared with appropriate stakeholders with the offer to make edits, as appropriate. All notes and other correspondence have been provided to the MCFN. Shell s EIA has predicted no likely significant adverse environmental impacts to the biophysical components that MCFN rely upon (either directly or indirectly) for the exercise of Treaty and Aboriginal Rights. However, Shell welcomes ongoing discussions to understand how MCFN views the project impacts to their TLU dependence. Shell is open to continuing discussions with MCFN regarding areas in which Shell can potentially assist MCFN in developing initiatives in furtherance of the ongoing exercise of Aboriginal and Treaty Rights. Although Shell attests that detailed notes from meetings have been provided to the Mikisew Cree, it is not apparent how these notes led to any courses of action, as was requested in the review. Shell s response to how First Nations can maintain Treaty Rights is not valid because Shell s assessment of impacts on traditional resources and, by implication, on Treaty Rights is incorrect. Our example in Section 2.0 of this report shows that Shell s assessment of wildlife impact is not tenable because wildlife habitat utilization has not been re-established anywhere in the Oil Sands region. One can only hope that after more than a century, at least some upland habitats (but not fens and bogs) will return to conditions similar to those which existed prior to disturbance. This is a duration which spans several human generations. Shell does not offer any explanation on how the First Nations can suspend their Page 8

18 Topic: Public Consultation, TEK and Community-Based Monitoring Treaty Rights during that time without impacts on their culture. Topic: Traditional Land Use and Socio-Economics 1 If these projects are approved without addressing the likely impacts on the Mikisew Cree and other FNs, in light of their Treaty Rights and what is needed for the meaningful exercise of those rights, it will limit FN input into mitigation, compensation, and Project design. How can these effects be minimized if a proper assessment has not been made to measure the Project impacts? 2;6 Q2. Given the current state of this Application, a separate consultation process should be established, including setting out how any results from that process would be integrated into the regulatory review and decision making process. Q6. In order for a proper impact assessment to be undertaken, we recommend that a full consultation process be completed. Useful conclusions cannot be made based on the methods contained in the current application. 3 What are the implications of this project for the continued and future traditional land use of the FN? We note, in particular, that the Application does not consider the impacts of the taking up of lands (either through direct footprints or zones of disturbance or through fragmentation) within the Traditional Territory Shell has been engaged in in-depth consultation with MCFN on the potential Project impacts to the exercise of Treaty Rights since early This consultation is an ongoing process, both directly and indirectly (through information provision) involving federal and provincial Crown agencies. The goal of this ongoing consultation process, which is an integral part of Shell s legislatively mandated regulatory and EIA process, is precisely to allow the regulatory decision makers to have a full understanding of potential Project impacts to MCFN Treaty Rights, and to consider these impacts (accommodating MCFN where appropriate) through imposing conditions on operating approvals and subsequent obligations on Shell where necessary. The EIAs and SEIAs for these Projects consider the likely environmental impacts to various biophysical and socioeconomic receptors and indicators. The exercise of most, if not all, of MCFN s Treaty rights relate directly or indirectly to the availability of, and impacts to these receptors and indicators. Accordingly, the regulators, through the thousands of Supplemental Information Requests, technical review, and consideration of all other evidence filed as part of the regulatory hearing process, will be able to determine the likely extent, and degree of impact on Aboriginal Rights. Shell believes that the applications are meeting the regulatory requirements and following the required process -Shell may need to agree to disagree on this point. Shell is currently engaged in a process of consultation -including this technical review. If MCFN does not agree with the regulatory process or consultation in support of this process,shell would be happy to be part of further discussions with MCFN and the Crown. Fragmentation impacts due to approved and future projects were rated as moderate in magnitude for moose and fisher/marten, and low in magnitude for black bears and Canada lynx in the RSA. After closure and reclamation, effects on habitat were rated as negligible. Depending upon the timing of approved and future projects, removal of the upper reaches of the Muskeg River for development of the JEMA will create Shell says that the process of consulting with First Nations is ongoing, and Shell highlights the need for a full understanding of potential project impacts to MCFN Treaty Rights. However, this impact assessment has not been done. Neither the Crown nor the Mikisew Cree have a full understanding of these impacts. This is precisely the basis of most of the gaps that our review identified, but Shell appears reluctant to provide the information requested from them to further this understanding. Shell merely responds that it would be happy to continue consultation on the impact assessment process. The concern that this response raises is that Shell does not respond to the questions and has not responded to the concerns raised by the Mikisew Cree in the past. A better way forward, rather than further discussion would be to actually provide the information that the Mikisew Cree seeks. Shell rated the fragmentation impacts as moderate. However, Shell did not provide credible information on how much fragmentation will continue and for how long the Mikisew Cree will need to suspend their practice of Treaty Rights in the area. Shell does not provide any quantitative information in any of its bullets responding to the question. Shell has not assessed the Page 9

19 Topic: Traditional Land Use and Socio-Economics of the Mikisew Cree and how this will impact the Mikisew s ability to exercise their Treaty Rights. Without understanding the impacts of the grants of tenure, and developments of various kinds on those lands, and what is required for the Mikisew to meaningfully exercise their rights in the future, it is difficult to understand the direct, indirect, and cumulative impacts of the Application on the Mikisew Cree s rights. barriers to movement in the upper Muskeg River basin that cannot be mitigated until after reclamation. (continued next page) Planned and approved projects north and south of the PRMA LSA on both banks of the Athabasca River may slow wildlife movement, although passageways provided by Shell under the Athabasca River bridge should mitigate the effects of the Project. Prior to reclamation, planned and approved projects north and south of the PRMA LSA on both banks of the Athabasca River are predicted to adversely affect wildlife movement rates along the Athabasca River within the RSA. This effect will be reduced if all the projects do not proceed on a similar schedule. The potential effects of the Project on traditional use plants (high potential) is considered negative and low. The environmental consequence for both the LSAs and the RSA was considered negligible. Fish and Fish Habitat assessment considered fish habitat, fish abundance, and habitat diversity in the Muskeg River, Kearl Lake, PRMA waterbodies and courses, and the Athabasca River. The residual impacts on each of these were classified as having no environmental consequence. The TLU Assessment calculated the amount of land that will be lost for TLU under the Application and Planned Development cases (EIA Volume 6, Section ). Based upon the available information on Mikisew Cree traditional activities, the loss of land for TLU under the Application and Planned Development cases will not significantly affect the amount of area available for Mikisew Cree traditional activities. TEK/TLU information has been collected from trappers (Aboriginal and non- Aboriginal) and other First Nations (e.g., ACFN and FMFN) MCFN TLU information available to us for use in the EIA included: The MCFN traditional territory identified in the Suncor Voyageur hearing (2006). The Fort Chipewyan Community Profile and Attitudes and Perceptions survey identified Fort Chipewyan Concerns, including MCFN. impact of suspending the Treaty Rights for several human generations. Page 10

20 Topic: Traditional Land Use and Socio-Economics 4 What will be the Project impacts on other areas of fishing activity and the community food supply? 5 Has the Applicant studied the cultural TLU of the FNs enough to be able to model and assess the impacts of the project on TLU tipping points? During studies for the CNRL Horizon Project EIA (2002). MCFN participants indicated most of their TLU activity was in the Fort Chipewyan area and Wood Buffalo National Park and provided other information. In the CNRL Horizon Project EIA (2002), MCFN members identified various concerns related to the potential for increased development. Fish and Fish Habitat assessment considered fish habitat, fish abundance, and habitat diversity in the Muskeg River, Kearl Lake, PRMA waterbodies and courses, and the Athabasca River. The residual impacts on each of these were classified as having no environmental consequence. There is a predicted decline in wildlife KIRs in the LSAs during operations phase due to habitat loss. Wildlife movement along the Muskeg River will require moving from the riparian river area and into the Fort Hills. Movements along the Athabasca River will be affected but effects will be reduced by mitigation. In the JEMA, predicted impacts on wildlife movement during operations are predicted to be high, and negligible or low after closure and reclamation. Effects of the Project on regional population viability are considered negligible. After closure and reclamation, the effects of fragmentation and habitat loss are predicted to be reversed. Additional information from FNs would be required to determine relevant tipping points for various TLU activities or resources. The FMFN and the ACFN conducted TLU studies for the Project and did not discuss tipping points in their reports. Shell is prepared to meet with the MCFN to discuss their TLU activities in detail to help determine tipping points for MCFN TLU activities. TEK/TLU information has been collected from trappers (Aboriginal and non- Aboriginal) and other First Nations (e.g., ACFN and FMFN) MCFN TLU information available to us for use in the EIA included: The MCFN traditional territory identified in the Suncor Voyageur hearing (2006). The Fort Chipewyan Community Profile and Attitudes and Perceptions survey identified Fort Chipewyan Concerns, including MCFN. During studies for the CNRL Horizon Project EIA (2002). MCFN participants indicated most of their TLU activity was in the Fort Chipewyan area and Wood Buffalo National Park and provided other information. In the CNRL Horizon Project EIA (2002), MCFN members identified various concerns related to the potential for increased development. Shell responds by re-stating the results from the EIA. We already know the results of the EIA and we did not find them credible. This includes Shell s conclusion that the effects of fragmentation and habitat loss are predicted to be reversed. Shell has not yet produced the evidence to support this claim. Shell does not respond to our question on tipping points. Shell s statements that TLU studies have not done so, and that Mikisew Cree members identified various concerns in the CNRL Horizon project are not helpful. Rather, Shell could have used the available TLU information in conjunction with the baseline data to shed some light on the potential for tipping points. 6 Answer combined with # 2 above 7 Why is there no mention of any participation in Shell has continued to consult with all stakeholders as part of the overall project Shell merely indicates that it will continue to provide opportunities for Page 11

21 Topic: Traditional Land Use and Socio-Economics reclamation consultation with the Mikisew Cree? 8 We recommend that the GoA and Industry work together with the FN to acquire and develop lands in the Fort McMurray region to allow the FN to construct and make appropriate housing available for the Mikisew members. Industry should work with the FN to build appropriate aboriginal housing in satellite communities on a joint venture basis with the FN. 9 We recommend that a full socio-economic study be conducted in association with a proper consultation process to identify the problems and causes of educational shortfalls. This will allow a thorough and coordinated mitigation plan to be developed. 10 We recommend that a full consultation process be initiated to assist all parties in identifying mitigation measures that directly address the socio-economic problems of the area, including information from a FNs perspective. 11 Given the higher rates of cancer and other problems reported in one of the rural communities, how will providing better care for Shell employees assist in reducing the ongoing impacts on rural health services in the area? Mitigation proposals should directly address the issue of attracting and keeping qualified staff at rural medical centers. application, which includes conceptual reclamation plans. During the Fort Chipewyan Open House and the concurrent Elders meeting in April 2009, Shell provided models of the reclamation process (based on stakeholder suggestions and feedback), which identified these plans. It is important to note that based on the stage of project development, the Closure and Reclamation plan is conceptual. The C&R plan is dependent on a number of factors, production rates and efficiency, the final regulator-approved mine plan, the actual extent of the resource, etc. A final plan will be developed in consultation with the regulators, but not for a number of years until closer to the time of reclamation. As noted above, Shell will continue to provide opportunities for MCFN to provide input into ongoing reclamation planning. Shell provides camp accommodation for its construction workforce, and we provide our labour forecasts to the Oil Sands Developers Group (OSDG) and RMWB so that they may plan for long-term and affordable housing accordingly. We do not have a core competency in building housing. Shell has completed a thorough socio-economic impact assessment of the JPME and PRM projects that meets the requirements of the TOR. Shell works closely with community schools in Fort McKay and Fort Chipewyan and is willing to discuss measures to address education shortfalls as part of Shell s ongoing community involvement. Shell completed a socio-economic impact assessment that predicted no likely significant adverse socioeconomic impacts. Shell is involved in an ongoing consultation process with MCFN and relevant Crown agencies, and will continue to work with MCFN to identify areas where Shell can potentially provide assistance and community support. As part of its planning process, Shell is exploring ways of maximizing benefit to local communities from the establishment of its on-site medical facilities, including: As a signatory to the Wood Buffalo Mutual Aid Agreement, placing on-site medical facility staff and equipment resources at the disposal of the local hospital in the event of major medical emergencies such as a pandemic or a major industrial accident in the region. Recruiting health care professionals, including physicians, for on-site medical facilities from outside the Wood Buffalo region, such as from Edmonton and Calgary. MCFN to provide input into ongoing reclamation. Given that Shell has not incorporated any of the comments provided on follow-up plans and monitoring reports to date, and given that Shell does not take the opportunity to clarify the concerns and issues raised by the Mikisew Cree in this EIA review, it is difficult to envision how Shell will provide the opportunities for input in the future. No comment. Shell responds by re-stating the results from the EIA. We already know the results of the EIA and we did not find them helpful in resolving this issue. Shell responds by re-stating the results from the EIA. We already know the results of the EIA and we did not find them helpful in resolving this issue. No comment. Page 12