SOC Shell Projects August2012 (CAB) 1

Fort Chipewyan Métis Local 125 Métis Nation of Alberta

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August 11, 2012 Canadian Environmental Assessment Agency Jill Adams, Panel Manager 160 Elgin Street, 22nd Floor Place Bell Canada Ottawa ON K1A 0H3 Sent via email: Shell.Reviews@ceaa-acee.gc.ca Re Statements of Concern on both

Jackpine Oil Sands Mine Expansion - Reference number: 59540

Pierre River Mine - Reference number: 59539

A Information about Fort Chipewyan Métis

We wish to provide the Joint Panels with the following information for their consideration and for the Record.

1. Fort Chipewyan is the oldest community in Alberta and it was formed in 1788. 2. Confederation occurred in 1867. 3. The Northwest Territories entered confederation on July 15, 1870. 4. In 1871, British Columbia became the sixth province. 5. Treaty 8 was not enacted until 1899. 6. Alberta and Saskatchewan become provinces in 1905. 7. The Métis have been in Fort Chipewyan since 1788 and it is very well documented (P. A.

McCormack, Fort Chipewyan and the Shaping of Canadian History , 1788-1920) 8. That Wood Buffalo National Park was created in 1922 and expanded in 1926.

The only entity able to lawfully engage in ‘Capital C’ constitutional consultation for the Fort Chipewyan Métis is Fort Chipewyan Métis Local 125. We do NOT recognize Region 1 or the Métis Nation of Alberta (at the provincial level) as having the ability to sign off on consultation, impacts or infringement of our Aboriginal rights. B Métis Rights & Alberta’s Métis Harvesting Policy In 2003, the Supreme Court of Canada recognized that Section 35 was not empty for us. The Court held that we had constitutionally recognized and protected rights. More specifically but not exclusively, the case dealt with harvesting rights. (R. v. Powley, 2003 SCC 43. enclosed). As a result, all the case law regarding Aboriginal rights applies to our community, including the ‘duty to consult’. The High Court

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established the constitutional test of ‘effective control by the Crown’ as the time at which Métis rights were crystallized, years later than the Van der Peet ‘contact test’ applicable to First Nations.

18 ... We accept Van der Peet as the template for this discussion. However, we modify the pre-contact focus of the Van der Peet test when the claimants are Métis to account for the important differences between Indian and Métis claims. Section 35 requires that we recognize and protect those customs and traditions that were historically important features of Métis communities prior to the time of effective European control, and that persist in the present day. This modification is required to account for the unique post-contact emergence of Métis communities, and the post-contact foundation of their Aboriginal rights. (R. v. Powley ,203 SCC 43, para. 18, p.15)

What is obvious from both the chronology and the legal dissertations, Fort Chipewyan Métis are vested with both Aboriginal and constitutionally protected rights:

whose origins predate Canadian confederation and the creation of Alberta, British Columbia, Saskatchewan and Northwest Territories; and,

that are larger in scope and more robust than First Nations’ rights because of the adaptive Powley ‘effective control test’.

Based on ‘oral testimony’ of my people, our traditional territory extends beyond Alberta’s borders into multiple Canadian jurisdictions. In their wisdom, the Canadian Courts have dictated that our perspective of our rights and the exercise of those rights is the guiding principal for interpretation because of our unique relationship with the Crown. Factually,

the Powley decision was released in 2003,

Alberta had a negotiated an Interim Métis Harvesting Agreement with the Métis Nation of Alberta in 2004 (enclosed), and

since terminating the 2004 agreement, Alberta developed and imposed a unilateral Harvesting Policy in 2010 (enclosed).

Via its June 2010 Métis Harvesting Policy, Alberta acknowledges the Fort Chipewyan Métis as ‘both a historic and contemporary rights-bearing community’. In the absence of any traditional land use or occupancy studies, Alberta creates a notional ‘deemed traditional territory’ of 160 km (enclosed map). The Fort Chipewyan Métis are taking a new approach to the regulatory area that is critically impacting our rights and way of life. C Consultation Policies Alberta has NO Métis Consultation Policy, but they have a First Nation Consultation Policy. So what is the effect of not having a Métis Consultation Policy? Alberta will not be able to say they have consulted with us as a rights-bearing people or even credibly assert that proposition. Canada has developed the words of a Métis Consultation Policy but has not made it real. Métis capacity building and meaningful Métis consultation are inextricably linked. There is a fairness principal that is NOT being met. The Crown cannot say that they have consulted and accommodated Métis rights when

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our organization has no capacity to address the impacts of policies, developments, land use or proposed project developments. We cannot give informed consent without the means to become informed. Canada’s actions will not meet the tests developed by Canadian Courts regarding the principals and elements of legitimate Aboriginal consultation. There is no hierarchy of s. 35 Aboriginal rights so Alberta’s and Canada’s unequal treatment of rights bear-bearing Aboriginal peoples will not stand. First Nations receive some of the following capacity support that we are denied.

federal basic per capital support to their organizations and community

both federal and provincial program funding far in excess of what is available to us

Alberta Industry have supported the development of Industry Relations Corporation (IRCs ) in every First Nation to enable their capacity (people, offices, studies, etc) to meaningful engage in consultation

Alberta now funds basic organizational support to First Nation’s IRCs, so the First Nation IRCs are getting support from Canada, Alberta and Industry now

there is no funding for us to commission baseline information or TLU studies, again unlike First Nations.

Everything we have set out establishes that Fort Chipewyan Métis Local has absolutely NO capacity to be able to support any kind of engagement, consultation, or mitigation discussion with either governments or industry. D Impacts We assert that both the Jackpine and Pierre River Projects will have SERIOUS ADVERSE and PERMANENT IMPACTS on our both acknowledged or credibly asserted, constitutionally protected rights to:

harvest for subsistence, cultural and commercially in , on and under the lands & waters

navigate the waters & lands for commercial, recreational and cultural reasons

exercise of our spiritual and cultural practices

protect and allow our Métis way of life to survive and thrive

Barb Hermansen has a publication called,” Barb Hermansen, The Last Woman to Raise Children on the Athabasca River” (June 2011). Barb and her grandchildren are members of Métis Local 125. Barb’s oldest grandson is supposed to inherit the trap line she raised both her children on. That trap line is on Shell’s Pierre River Mine. Barb tells many wonderful stories about her strong and knowledgeable mother, who harvested many things, including bitumen. As with other Métis in Northern Alberta, we harvested bitumen to seal boats or roofs. Barb’s mother would de-bark a tree to make shingles for her cabin. The bitumen was used to seal the joints between the bark shingles. Her grandson inheritance will be worthless. A way of life and their rights are being completely abrogated.

Everyone Métis in Fort Chipewyan is a harvester of some kind, out of both choice and necessity. Fort Chipewyan is a fly in community. Our Métis way of life has changed little since the early 1800s. Almost everyone in Fort Chipewyan owns a boat or has access to one. These boats are used for recreation, harvesting , travel to Fort McMurray and commercial endeavours, like barging.

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We notice that both Mikisew and the Athabasca Chipewyan First Nations have filed a 208 Page submission on Shell’s Jackpine Project. We draw the Joint Panels consideration to their well funded submissions We entreat the Joint Panels to note that we all live in the same isolated , beautiful community. If they have well documented impacts, then logically those impacts apply to us. We have been exercising our rights in our traditional territory since we first settled in Fort Chipewyan, long before Canada was Canada and long before British Columbia, Alberta, Saskatchewan and the NWT existed (P. A. McCormick, Ft Chipewyan and the Shaping of Canadian History, 1788-1920).

E Role of the Regulatory Bodies The case of Rio Tinto Alcan Inc. and BC Hydro and Power Authority v. Carrier Sekani Tribal Council, 2010 SCC 43, (2010) 2 S.C.R.650 provides that in some cases a regulatory authority may be tasked with the role of consultation or may in fact be responsible for ruling on the adequacy of the consultation that has transpired. Métis Local 125 has written to both the Energy Resources Conservation Board (ERCB) and the Canadian Environmental Assessment Agency (CEAA) to ask them to rule pre-emptively on the ‘adequacy of Métis consultation’. We tried this approach because our organization receives no government funding. We have no ability to bring legal actions to protect ourselves. On the advice of our advisor, we wrote to you seeking to trigger the honour of the Crown and resulting duties that I was told about in the Supreme Court case law. I was told about how we are supposed to be treated “with the utmost good faith”. We received your response dated July 31, 2012, and not surprisingly you are forcing us into litigation.

G Conclusion and Requests

We are corresponding with Governments about Fort Chipewyan’s new approach to protecting our rights. We have indicated that if they are slow to address the issues we raise in this correspondence, justice will not be done – delay will in fact constitute denial of justice. The amount of development taking place in northern Canada is both significant and severely impacting our way of life (see enclosed map). We corresponded with Alberta and Canada asking to be engaged and resourced on an urgent basis to deal with all these regulatory matters (see included letter to Canada and Alberta). First Nations have been in consultation processes for over 10 years. It is going to take awhile for Fort Chipewyan Métis to document our baseline information and commission Traditional Land Use and Occupancy Studies. Please continue to notify us regarding the Joint Panels activities, but note ‘on the record’ that we believe notification or participation does NOT fulfill either Canada’s or Alberta’s consultation obligation for the reasons we set out in this letter.

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

Métis Harvesting in Alberta July 2007 – Updated June 2010

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Recreational Access Regulation applies to Métis harvesters.

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

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

A Métis harvester may not hunt in:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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APPROVED BY PROJECT

DRAFT DATE

SPATIAL REFERENCE

PREPARED FOR

DRAWN BY

UTM Zone 12

2012 June 14

124910221 REVISED BY

IS

DATUMNAD 83

SL

0 25 50Kilometers

PREPARED BY

IS

Ü

Fort Chipewyan 160 km Buffer

Fort Chipewyan Métis

1:1,467,832

Fort Chipewyan MétisUse and Occupancy Study

Base Data: © Department of Natural Resources Canada. All rights reserved.

Legend^ Fort Chipewyan

160 km Buffer