Report of the Joint Review Panel Shell Canada Energy

Report of the Joint Review Panel  Shell Canada Energy
2013 ABAER 011
CEAA Reference No. 59540
Report of the Joint Review Panel
Shell Canada Energy
Jackpine Mine Expansion Project
Application to Amend Approval 9756
Fort McMurray Area
July 9, 2013
Joint Review Panel Established by the Federal Minister of the
Environment and the Energy Resources Conservation Board
REPORT OF THE JOINT REVIEW PANEL ESTABLISHED BY
THE FEDERAL MINISTER OF THE ENVIRONMENT AND THE
ENERGY RESOURCES CONSERVATION BOARD
Decision 2013 ABAER 011: Shell Canada Energy, Jackpine Mine Expansion Project, Application
to Amend Approval 9756, Fort McMurray Area
July 9, 2013
Catalogue No. En106-119/2013E-PDF
ISBN 978-1-100-22455-8
Published by
Alberta Energy Regulator
Suite 1000, 250 – 5 Street SW
Calgary, Alberta
T2P 0R4
Telephone: 403-297-8311
Toll free: 1-855-297-8311
E-mail: [email protected]
Website: www.aer.ca
and
Canadian Environmental Assessment Agency
160 Elgin Street, 22nd Floor
Place Bell Canada, Ottawa, Ontario K1A 0H3
Telephone: 613-957-0700
Fax: 613-957-0941
Website: [email protected]
Joint Review Panel Report, Shell Canada Energy, Jackpine Mine Expansion Project, Application to Amend Approval 9756
CONTENTS
Summary and Decision
1
Decision ....................................................................................................................................2
Summary of Key Findings ........................................................................................................4
Environmental Effects...............................................................................................................5
Effects on Aboriginal Traditional Land Use, Rights, and Culture............................................7
Section 5 of CEAA, 2012 ..........................................................................................................9
Introduction
10
Application(s)............................................................................................................................10
Joint Review Process ................................................................................................................11
Participant Funding Program ....................................................................................................13
Questions of Constitutional Law...............................................................................................13
Participant Involvement in the Review Process........................................................................15
Industrial Organizations .........................................................................................................15
Regional Municipality of Wood Buffalo ...............................................................................15
Aboriginal Groups (in alphabetical order) .............................................................................15
Members of the Public Attending the Hearing ......................................................................17
Non-Governmental Organizations Attending the Hearing ....................................................17
Non-governmental Organizations not Attending the Hearing ...............................................18
Comments from the Public.....................................................................................................18
Government of Canada ..........................................................................................................19
Government of Alberta ..........................................................................................................20
Hearing......................................................................................................................................20
Issues
20
Purpose
22
Evidence....................................................................................................................................22
Analysis and Findings...............................................................................................................22
Need for the Project
23
Evidence....................................................................................................................................23
Analysis and Findings...............................................................................................................23
Alternatives to the Project
24
Evidence....................................................................................................................................24
Analysis and Findings...............................................................................................................24
Alternative Means of Carrying out the Project
24
Evidence....................................................................................................................................24
Analysis and Findings...............................................................................................................25
Mine Planning and Resource Conservation
26
Evidence....................................................................................................................................26
Analysis and Findings...............................................................................................................28
Surficial Deposit Dewatering and Basal McMurray Aquifer Depressurization
28
Evidence....................................................................................................................................28
Analysis and Findings...............................................................................................................30
Devonian Geohazard
31
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Evidence....................................................................................................................................31
Analysis and Findings...............................................................................................................32
Bitumen Recovery and Operating Criteria
33
Evidence....................................................................................................................................33
Analysis and Findings...............................................................................................................34
Asphaltene Rejection
35
Evidence....................................................................................................................................35
Analysis and Findings...............................................................................................................35
Solvent Loss and Release of Untreated Froth Treatment Tailings
36
Evidence....................................................................................................................................36
Analysis and Findings...............................................................................................................36
Tailings Management
36
Evidence....................................................................................................................................36
Analysis and Findings...............................................................................................................37
Accidents and Malfunctions
39
Evidence....................................................................................................................................39
Analysis and Findings...............................................................................................................41
Noise
41
Evidence....................................................................................................................................41
Analysis and Findings...............................................................................................................42
Air Quality
42
Project Effects ...........................................................................................................................42
Evidence .................................................................................................................................42
Analysis and Findings ............................................................................................................45
Cumulative Effects....................................................................................................................46
Evidence .................................................................................................................................46
Analysis and Findings ............................................................................................................47
Greenhouse Gas Emissions
49
Project Effects ...........................................................................................................................49
Evidence .................................................................................................................................49
Analysis and Findings ............................................................................................................50
Cumulative Effects....................................................................................................................50
Evidence .................................................................................................................................50
Analysis and Findings ............................................................................................................51
51
Climate Change Considerations in the Environmental Assessment
Evidence....................................................................................................................................51
Analysis and Findings...............................................................................................................54
Change to the Project Caused by the Environment
55
Evidence....................................................................................................................................55
Analysis and Findings...............................................................................................................56
Water Withdrawal from the Athabasca River
56
Evidence....................................................................................................................................56
Analysis and Findings...............................................................................................................61
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Potential Effects on Groundwater from Process-Affected Water
62
Evidence....................................................................................................................................62
Analysis and Findings...............................................................................................................63
Diversion of the Muskeg River
64
Evidence....................................................................................................................................64
Analysis and Findings...............................................................................................................68
Use of End Pit Lakes
69
Evidence....................................................................................................................................69
Analysis and Findings...............................................................................................................75
Effects on Surface Water Quality
78
Evidence....................................................................................................................................78
Analysis and Findings...............................................................................................................82
No Net Loss Plan
83
Project Effects ...........................................................................................................................83
Evidence .................................................................................................................................83
Analysis and Findings ............................................................................................................90
Cumulative Effects....................................................................................................................92
Evidence .................................................................................................................................92
Analysis and Findings ............................................................................................................94
Effects of Tailings Ponds on Migratory Birds
95
Evidence....................................................................................................................................95
Analysis and Findings...............................................................................................................97
Methods Used to Assess Effects on Terrestrial Resources
98
Estimating Land Cover Composition and Wildlife Habitat Availability..................................98
Evidence .................................................................................................................................98
Analysis and Findings ............................................................................................................100
Determination of Significance ..................................................................................................101
Evidence .................................................................................................................................101
Analysis and Findings ............................................................................................................104
Effects on Wetlands
106
Project Effects ...........................................................................................................................106
Evidence .................................................................................................................................106
Analysis and Findings ............................................................................................................109
Cumulative Effects....................................................................................................................112
Evidence .................................................................................................................................112
Analysis and Findings ............................................................................................................114
Effects on Old-Growth Forests
116
Project Effects ...........................................................................................................................116
Evidence .................................................................................................................................116
Analysis and Findings ............................................................................................................118
Cumulative Effects....................................................................................................................119
Evidence .................................................................................................................................119
Analysis and Findings ............................................................................................................120
Effects on Traditional Plant Potential Areas
122
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Project Effects ...........................................................................................................................122
Evidence .................................................................................................................................122
Analysis and Findings ............................................................................................................124
Cumulative effects ....................................................................................................................125
Evidence .................................................................................................................................125
Analysis and Findings ............................................................................................................127
Effects on Wildlife and Their Habitat
129
General ......................................................................................................................................129
Project Effects ........................................................................................................................129
Cumulative Effects.................................................................................................................133
Woodland Caribou ....................................................................................................................141
Project Effects ........................................................................................................................141
Cumulative Effects.................................................................................................................145
Wood Bison...............................................................................................................................147
Project Effects ........................................................................................................................147
Cumulative Effects.................................................................................................................149
Moose........................................................................................................................................150
Project Effects ........................................................................................................................150
Cumulative Effects.................................................................................................................152
Migratory Birds.........................................................................................................................155
Project Effects ........................................................................................................................155
Cumulative Effects.................................................................................................................158
Effects on Biodiversity
163
Project Effects ...........................................................................................................................163
Evidence .................................................................................................................................163
Analysis and Findings ............................................................................................................165
Cumulative Effects....................................................................................................................168
Evidence .................................................................................................................................168
Analysis and Findings ............................................................................................................171
Reclamation
173
Evidence....................................................................................................................................173
Analysis and Findings...............................................................................................................175
Human Health
176
Evidence....................................................................................................................................176
Air Quality .............................................................................................................................177
Water Quality .........................................................................................................................177
Contamination of Country Foods...........................................................................................178
Analysis and Findings...............................................................................................................180
Physical and Cultural Heritage Resources
181
Evidence....................................................................................................................................181
Analysis and Findings...............................................................................................................182
Social and Economic Effects
183
Project Effects ...........................................................................................................................183
Project Benefits ......................................................................................................................183
Methodology ..........................................................................................................................184
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Housing .................................................................................................................................184
Transportation Infrastructure .................................................................................................185
Quality of Life and Social Services .......................................................................................186
Cumulative Effects....................................................................................................................188
Socioeconomic Impact Assessment and Cumulative Impacts ...............................................188
Land Release ..........................................................................................................................189
Regional Transportation Infrastructure ..................................................................................191
Project Accommodations/Work Camps.................................................................................193
Quality of Life and Social Services .......................................................................................194
Capacity of Renewable Resources
198
Evidence....................................................................................................................................198
Moose .................................................................................................................................198
Caribou .................................................................................................................................198
Bison .................................................................................................................................199
Traditional Plants ...................................................................................................................199
Natural Environment/Landscape............................................................................................200
Analysis and Findings...............................................................................................................201
Effects on Aboriginal Traditional Land Use, Rights, and Culture
203
Shell’s Assessment of Effects on Aboriginal Traditional Land Use, Rights, and Culture .......203
Evidence .................................................................................................................................203
Analysis and Findings ............................................................................................................213
Conclusions ............................................................................................................................221
Athabasca Chipewyan First Nation...........................................................................................222
Evidence .................................................................................................................................222
Analysis and Findings ............................................................................................................245
Métis Nation of Alberta ............................................................................................................251
Evidence .................................................................................................................................251
Analysis and Findings ............................................................................................................257
Non-Status Fort McMurray/Fort McKay First Nation (NSFMFM) and the Clearwater River
Paul Cree Band #175 (Clearwater Band) ........................................................................260
Evidence .................................................................................................................................260
Analysis and Findings ............................................................................................................266
Fort McMurray #468 First Nation (FMMFN #468) .................................................................269
Evidence .................................................................................................................................269
Analysis and Findings ............................................................................................................275
Fort McKay First Nation and Fort McKay Métis Community Association .............................278
Evidence .................................................................................................................................278
Analysis and Findings ............................................................................................................286
Mikisew Cree First Nation........................................................................................................290
Evidence .................................................................................................................................290
Analysis and Findings ............................................................................................................295
Regional Effects
300
Integrated Land Use Planning...................................................................................................300
Aboriginal Traditional Land Use ..............................................................................................301
Biodiversity...............................................................................................................................302
Loss of Wetlands....................................................................................................................302
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Species at Risk .......................................................................................................................303
Conservation Offsets.................................................................................................................303
Air Quality ................................................................................................................................305
Water Quality/ Quantity............................................................................................................305
Fish and Fish Habitat ................................................................................................................306
Regional Monitoring .................................................................................................................306
Socioeconomic Impacts ............................................................................................................307
Appendices
Appendix 1
Hearing Participants.........................................................................................309
Appendix 2
Abbreviations Used in this Report...................................................................313
Appendix 3
Joint Panel Agreement .....................................................................................318
Appendix 4
Panel Decision on NQCL.................................................................................355
Appendix 5
List of AER Conditions ...................................................................................371
Appendix 6
List of Panel Recommendations ......................................................................373
Appendix 7
Recommendations provided by the Government of Canada in its October 1,
2012, Submission to the Panel ........................................................................................384
Appendix 8
List of Recommendations from the Aboriginal Groups ..................................390
A. ACFN Recommendations................................................................................................390
B. Métis Nation of Alberta Recommendations ....................................................................393
C. NSFMFM and Clearwater Band Recommendations.......................................................394
D. Fort McMurray First Nation #448 Recommendations ....................................................395
E.
Fort McKay Recommendations in relation to cumulative effects and consultation .......396
F.
MCFN Recommendations related to cumulative effects and consultation .....................397
Appendix 9
Maps and Figures.............................................................................................401
Appendix 10 Wildlife Tables.................................................................................................404
A. Wildlife key indicator species and rationale used by Shell in Project EIS (derived from
Vol. 5 of Shell’s EIA) .......................................................................................................404
B. List of species at risk found on or near the JPME footprint as provided by Shell and EC
.........................................................................................................................................405
Tables
Key dates in the review process................................................................................................12
Figures
Shell Jackpine Mine Expansion Project Location ...................................................................... 401
Shell Jackpine Mine Expansion Project Layout ......................................................................... 402
Shell Jackpine Mine Expansion End Pit Lake and Drainage Layout ......................................... 403
vi • 2013 ABAER 011 (July 9, 2013)
JACKPINE MINE EXPANSION PROJECT JOINT REVIEW PANEL
Calgary, Alberta
SHELL CANADA ENERGY
APPLICATION TO AMEND APPROVAL 9756
JACKPINE MINE EXPANSION PROJECT
FORT MCMURRAY AREA
2013 ABAER 011
AER Application No. 1554388
CEAA Reference No. 59540
SUMMARY AND DECISION
[1]
Shell Canada Energy (Shell) applied to the Energy Resources Conservation Board
(ERCB) for an amendment to the Jackpine Mine—Phase 1 (Phase 1) Approval 9756 to increase
bitumen production. The Jackpine Mine Expansion Project (the Project), located about 70
kilometres north of Fort McMurray, would include additional mining areas and associated
processing facilities, utilities, and infrastructure and would increase bitumen production by
15 900 cubic metres per day. Shell submitted an environmental impact assessment (EIA) report
to Alberta Environment and Sustainable Resource Development 1, the Canadian Environmental
Assessment Agency (CEAA), and the ERCB. The EIA forms part of the application to the
ERCB.
[2]
The Oil Sands Conservation Act (OSCA), the Environmental Protection and
Enhancement Act, and the Water Act require provincial approvals for the Project. The Public
Lands Act, the Municipal Government Act, and the Historical Resources Act require ancillary
approvals. The Fisheries Act and the Navigable Waters Protection Act require federal approvals.
[3]
The federal Minister of the Environment and the Chairman of the ERCB entered into the
Agreement to Establish a Joint Review Panel for the Jackpine Mine Expansion Project (the
Agreement) on September 20, 2011. They established the Joint Review Panel (the Panel) under it
and appointed Mr. J. D. Dilay, P. Eng. as the Panel chair, and Mr. A. Bolton and Mr. L. Cooke as
Panel members. Under the Agreement, the Panel must conduct its review in a manner that
discharges the responsibilities of the ERCB under the Energy Resources Conservation Act
(ERCA) and the OSCA and discharges the requirements of the Canadian Environmental
Assessment Act, 2012 (CEAA, 2012) and the terms of reference attached as an appendix to the
Agreement.
[4]
In July 2012, CEAA, 2012 came into force and repealed the Canadian Environmental
Assessment Act. The Panel’s assessment continued under the process established in section 126
of the CEAA, 2012 as if it had been referred to a review panel under section 38 of the CEAA,
2012. The Minister and Chairman signed an amendment to the Agreement on August 3, 2012, to
account for the CEAA, 2012 changes. The amended Agreement states that the Panel’s report shall
set out the rationale, conclusions, and recommendations of the Panel, relating to the
environmental assessment of the Project, including any mitigation measures and follow-up
program, and a summary of comments received from the public, including Aboriginal persons
and groups. The report must also identify those conclusions and mitigation measures that relate
to the environmental effects to be taken into account under section 5 of the CEAA, 2012.
1
Alberta Environment and Alberta Sustainable Resource Development were combined in 2012 to form Alberta
Environment and Sustainable Resource Development
2013 ABAER 011 (July 9, 2013) • 1
Joint Review Panel Report, Shell Canada Energy, Jackpine Mine Expansion Project, Application to Amend Approval 9756
[5]
The Panel conducted a hearing that began in Fort McMurray, Alberta on October 23,
2012, and concluded in Edmonton, Alberta on November 21, 2012.
[6]
On June 17, 2013, the Responsible Energy Development Act (REDA) came into force in
Alberta. The REDA repealed the ERCA (which established the ERCB) and created the Alberta
Energy Regulator (AER). In accordance with the terms of the REDA, the AER assumed all of the
ERCB’s powers, duties, and functions under Alberta’s energy resource enactments, which
include the OSCA. Under the terms of the REDA and its Transition Regulation, the AER
assumed the position of the ERCB under the Agreement, and it completed the ERCB’s
responsibilities under the Agreement. Throughout this transition from the ERCB to the AER, the
authority of the Panel members continued without interruption in accordance with the Transition
Regulation.
[7]
Section 3 of the ERCA required the Panel to consider whether the Project was in the
public interest when the Panel conducted the hearing. The Panel has therefore included findings
about the public interest in this report to indicate how it considered the public interest when it
conducted the hearing. The Panel is also aware of its responsibilities under section 15 of the
REDA and section 3 of the REDA General Regulation and is satisfied that throughout this
proceeding and in this decision report it has considered the factors that are identified in those
provisions. This includes a consideration of the social and economic effects of the Project and of
the effects of the Project on the environment.
Decision
[8]
Having regard for its responsibilities under the REDA, ERCA, OSCA, and CEAA, 2012,
the Panel has carefully considered all of the evidence pertaining to Shell’s application. The Panel
notes that the Project is in an area that is nearly surrounded by other oil sands mines and in
which the government of Alberta has identified bitumen extraction as a priority use. The Panel
further notes that Shell’s application is for an expansion of an existing oil sands mine project.
The Project would provide significant economic benefits for the region, Alberta, and Canada.
Although the Panel finds that there would be significant adverse project effects on certain
wildlife and vegetation, under its authority as the AER, the Panel considers these effects to be
justified and that the Project is in the public interest. The Panel has decided to approve AER
Application No. 1554388 and to amend AER Approval 9756, subject to the conditions in
appendix 5. The Panel expects Shell to adhere to all of the commitments it made to the extent
that those commitments do not conflict with the terms of its AER approval, any other approval or
licence affecting the Project, or any law, regulation, or similar requirement that Shell is bound to
observe.
[9]
The Panel finds that the Project would likely have significant adverse environmental
effects on wetlands, traditional plant potential areas, wetland-reliant species at risk, migratory
birds that are wetland-reliant or species at risk, and biodiversity. There is also a lack of proposed
mitigation measures that have been proven to be effective. The Panel also concludes that the
Project, in combination with other existing, approved, and planned projects, would likely have
significant adverse cumulative environmental effects on wetlands; traditional plant potential
areas; old-growth forests; wetland-reliant species at risk and migratory birds; old-growth forestreliant species at risk and migratory birds; caribou; biodiversity; and Aboriginal traditional land
use (TLU), rights, and culture. Further, there is a lack of proposed mitigation measures that have
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proven to be effective with respect to identified significant adverse cumulative environmental
effects.
[10] The Panel understands that the provincial and federal governments will need to make
separate decisions about the Project, taking into account the Panel’s report. The Panel
acknowledges that Shell is planning to reclaim the Project footprint to equivalent land capability.
The Panel believes that reclamation is useful but that it will not mitigate all of the significant
effects because some habitat types cannot be reclaimed (e.g., peatlands), and reclamation will not
occur or be complete for many years.
[11] Minimizing adverse effects may be difficult or impractical in a large mine because it
generally requires sterilizing bitumen resources, or it may impose constraints that affect the
ability to operate the mine in a safe, efficient, and economical manner. However, the Panel is
concerned about the lack of mitigation that has proven to be effective for the loss of these
habitats and believes that without additional mitigation, significant adverse effects will occur.
[12] The Panel believes that conservation offsets are one of the few available mitigation
measures that could be used to mitigate these effects. The Panel is also of the view that offsets
used to help mitigate project effects would also help mitigate cumulative effects. However, Shell
did not propose or support the use of conservation offsets, and none of the other participants in
the hearing provided any evidence on the possible location of such offsets that would allow the
Panel to assess the potential for the offsets to further mitigate the effects of the Project. The
Panel therefore recommends that before other provincial and federal approvals are issued, the
governments of Canada and Alberta cooperatively consider the need for conservation offsets to
address some of the likely significant adverse effects of the Project. The Panel also recommends
that if the governments of Canada and Alberta identify offsets as necessary, the selection and
implementation of conservation offsets should consider the effects of the offsets on existing
Aboriginal TLU and consider the need to maintain areas for traditional use by Aboriginal
peoples, including areas containing traditional plants and other culturally important resources.
[13] With regard to the prediction of significant cumulative effects for several key indicator
resources and species at risk, the Panel has determined that the Project itself only contributes
incrementally to some of these effects and that most of these effects result from projects and
disturbances that either currently exist or have already been approved. The Panel took a
conservative and precautionary approach when making these determinations and recognizes that
any determination of significant adverse cumulative effects includes some degree of uncertainty.
[14] The Panel also believes that the Lower Athabasca Regional Plan (LARP), although still a
work in progress, is an appropriate mechanism for identifying and managing regional cumulative
effects, including the proposed biodiversity management framework and new Alberta wetlands
policy (both in development). The LARP is an excellent and important framework for beginning
to introduce a more integrated regional approach, and the Panel strongly encourages Alberta to
continue to implement this regional plan. It is critical that the frameworks, plans, and thresholds
identified in the LARP be put in place as quickly as possible. Future project reviews will benefit
greatly from the completion of this regional approach.
[15] The Panel also notes that the governments of Canada and Alberta have established the
Joint Canada-Alberta Implementation Plan for Oil Sands Monitoring in order to ensure
2013 ABAER 011 (July 9, 2013) • 3
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environmentally responsible development of the oil sands resource, and this initiative will help
promote a better understanding of cumulative effects in the Lower Athabasca region.
[16] The Panel has made 88 recommendations to the federal and provincial governments
(appendix 6). The Panel believes that these recommendations are important for the successful
implementation of the Project and for the future development of the oil sands area. The Panel
also sets out 22 conditions for Shell (appendix 5).
Summary of Key Findings
[17] While some uncertainties continue at the project level, particularly with groundwater
modelling, bitumen recovery, tailings management, and reclamation, Shell stated that it will
continue to use an adaptive management strategy and will work with regulators to address the
uncertainties and site-specific issues associated with the mining and processing of oil sands in its
lease areas.
[18] The Panel has concluded that the Project would provide significant economic benefits for
the region, the province, and Canada. The Project is an expansion of an existing project and is in
an area where the government of Alberta has identified bitumen extraction as a priority use. Shell
stated that the Project will result in the recovery of about 325 million cubic metres of dry
bitumen over its approximately 40-year life. The municipal, provincial, and federal governments
will all receive significant financial benefits as a result of the Project. The Project will provide
major and long-term economic opportunities to individuals in Alberta and throughout Canada,
and will generate a large number of construction and operational jobs.
[19] The Panel finds that diversion of the Muskeg River is in the public interest, considering
that approximately 23 to 65 million cubic metres of resource would be sterilized if the river is
not diverted, and considering the low level of predicted environmental effects on water quality
and quantity in the lower reaches of the river. The upper reaches of the Muskeg River to be
diverted have low fisheries habitat value, and the evidence indicated only limited Aboriginal use
of the area. The Panel recognizes that the relevant provincial agencies were not at the hearing to
address questions about why the Project is not included in the Muskeg River Interim
Management Framework for Water Quantity and Quality. The Panel believes that there will be
significant and unacceptable sterilization of bitumen if the diversion does not occur.
[20] The Panel recognizes that Shell’s proposal to eliminate mature fine tailings (MFT) from
the Project’s end pit lakes (EPLs) will improve current tailings management practices and could
reduce potential toxicity in receiving water bodies and potential fish tainting risks. The Panel
agrees with the adaptive management concept and concludes that with the implementation of
Shell’s proposed mitigation measures and commitments and with the Panel's conditions,
expectations, and recommendations, significant adverse environmental effects are unlikely to
result from the use of MFT-free EPLs. However, the Panel requires that Shell report on
alternatives to treating EPLs passively and provide a comprehensive economic and technical
assessment of feasible active water treatment options to ensure that EPLs will meet water quality
release criteria at closure.
[21] Although the Panel has concluded that the Project is in the public interest, project and
cumulative effects for key environmental parameters and socioeconomic impacts in the region
have weighed heavily in the Panel’s assessment. In approving this Project, the Panel has set new
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approval conditions for mining operations, resource conservation, tailings management,
groundwater, EPLs, and reclamation. For a summary of the new conditions, refer to appendix 5.
The Panel has also made recommendations, summarized in appendix 6, to the federal and
provincial governments.
Environmental Effects
[22] The Panel has concerns with some of the methods used by Shell to assess effects on
terrestrial resources and Aboriginal TLU, rights, and culture. These concerns are that the local
study area (LSA) consists of only the Project and existing Phase 1 footprints, that there is a lack
of ecological context, and that the large size of the regional study area (RSA) adopted by Shell
causes a “dilution effect.” The Panel also found it difficult to assess the significance of effects
because of the coarse-scale Landsat imagery Shell used to estimate land cover type, because of
the lack of use of thresholds to determine significance, and because of Shell’s consequent
reliance on professional judgement.
[23] The Panel concludes that it could not rely on Shell’s assessment of the significance of
project and cumulative effects on terrestrial resources. The Panel reviewed the evidence using a
20 per cent loss threshold and considered other factors relating to the reliability of Shell’s
determination of the significance of effects.
[24] The Panel concludes that the Project would have significant adverse environmental
project effects on wetlands, traditional plant potential areas, wetland-reliant species at risk,
migratory birds that are wetland-reliant or species at risk, and biodiversity. The Panel also
concludes that the Project, in combination with past, present, and reasonably foreseeable future
projects, would likely result in significant adverse cumulative effects on wetlands; old-growth
forests; traditional plant potential areas; wetland-reliant species at risk and migratory birds; oldgrowth forest-reliant species at risk and migratory birds; caribou; biodiversity; and Aboriginal
TLU, rights, and culture.
[25] The Panel understands that a large loss (over 10 000 hectares) of wetlands would result
from the Project, noting in particular that 85 per cent of those wetlands are peatlands that cannot
be reclaimed. The Panel further understands that wetlands provide important habitat for many
migratory birds and species at risk. Based on the evidence presented, the Panel could not
conclude that the remaining wetlands in the RSA would be sufficient to alleviate the effects of
wetland habitat loss in the LSA. The Panel concludes that the Project would have highmagnitude, long-term, and likely irreversible effects on wetlands that are in an area nearly
surrounded by, and thus affected by, other existing and approved oil sands mines. The Panel has
determined that due to the adverse effects on wetlands in the LSA, species that rely on these
habitats would be significantly affected. The Panel finds the effects on species reliant on
wetlands to be high in magnitude, regional in scope, long-term, and potentially irreversible. The
Panel also finds that significant cumulative effects on wetlands and wetland dependent species
are likely in the RSA.
[26] The Panel finds that there would be high-magnitude, long-term, but possibly reversible
cumulative effects on old-growth forest in the far future (2165). The Panel believes that Shell’s
estimation of remaining old-growth in the RSA is, at best, uncertain, and thus using the
precautionary approach the Panel concludes that there would be significant cumulative effects.
The Panel also believes that reclamation will not sufficiently mitigate the effects on species at
2013 ABAER 011 (July 9, 2013) • 5
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risk and migratory birds that rely on old-growth forest because of the substantial amount of time
needed to re-establish habitat. The Panel has also determined that there would be significant
adverse cumulative effects on species that rely on old-growth forests.
[27] The Panel finds that most of the high and moderate traditional plant potential in the LSA
will be lost during the construction and operation phases and that after closure and reclamation
the high and moderate traditional plant potential will decrease in the LSA by 7 and 52 per cent,
respectively. Given that most of the Project area will not support traditional plants for several
generations, the Panel also considers the effects to be long-term. The Panel notes that some
traditional plants may never re-establish because they occur on wetlands that cannot be
reclaimed. The Panel also notes that although Shell’s planting prescription for achieving the
desired post-reclamation range of ecosite phases includes some traditional plants, Shell largely
relies on natural ingress and that there is limited opportunity to place topsoil and subsoil directly.
For these reasons, the Panel finds that there would be significant adverse project effects on
traditional plant potential areas. The Panel also concludes that the Project would have significant
adverse cumulative effects on traditional plant potential in the RSA because of the significant
levels of disturbance predicted for areas of high and moderate traditional plant potential, the long
time lag between disturbance and reclamation, and the uncertainty associated with wetlands
reclamation.
[28] The Panel notes that a substantial amount of habitat for migratory birds that are wetland
or old-growth forest dependent will be lost entirely or lost for an extended period. The Panel
finds the project effects on wetland and old-growth forest-reliant migratory birds to be moderate
in magnitude, regional in extent, long-term, and potentially irreversible given that some habitat
types cannot be reclaimed. The Panel concludes that these effects would be significant. The
Panel further concludes that there would be significant cumulative effects on wetland and oldgrowth forest-reliant migratory birds, mainly as a result of the effects on habitat loss of past,
present, and future projects in combination with the Project.
[29] The Panel notes that caribou, a species at risk that appears to be declining to extirpation
in some herds, are traditionally and culturally important to Aboriginal people. The Panel finds
that there has been and would continue to be significant adverse cumulative effects on caribou
largely due to the catastrophic loss of caribou habitat from the preindustrial case (PIC) to the
application case. The Panel concluded that Project effects would likely result primarily from a
potential increase in predation on caribou in adjacent areas due to the increasing loss of habitat
for caribou predators (e.g., wolves) within the Project LSA.
[30] The Panel has assessed the effects on biodiversity at the species, ecosystem, and
landscape levels. The Panel believes that there appears to be a high potential for significant loss
of biodiversity based on overall wildlife habitat loss, unproven methods for reclamation of
peatlands and old-growth forest, and the long time lag between disturbance and reclamation. The
Panel finds a high-magnitude, long-term, potentially irreversible effect on biodiversity at the
LSA scale and concludes that it is a significant effect. The Panel also finds that there would be
significant adverse cumulative effects on biodiversity in the RSA.
[31] The Panel is concerned about the lack of mitigation measures proposed for loss of
wildlife habitat in the LSA that have been shown to be effective, particularly for wetland and
old-growth habitat used by species at risk and migratory birds. The Panel believes that without
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additional mitigation, there will be significant adverse effects on species abundance and
diversity. The Panel believes that these adverse project effects, if not adequately mitigated, will
contribute to adverse effects on biodiversity as well. Given the predicted declines in biodiversity
in the RSA, the degree of error associated with Shell’s estimates, the loss of habitat for species at
risk, the uncertainty associated with habitat reclamation, and the lack of mitigation shown to be
effective, the Panel finds a significant adverse effect on biodiversity in the RSA as a result of the
cumulative effects of the application case and the planned development case (PDC) compared
with the PIC. Despite uncertainty around appropriate thresholds to be used, the Panel believes
that cumulative effects on wildlife observed in both the application case and PDC in the Project
area have exceeded or are approaching some of the proposed thresholds, resulting in significant
adverse effects on biodiversity. Although the Panel recognizes that LARP and other regulations
and policies of the government of Alberta do not currently mandate the use of conservation
offsets in the oil sands region, given that there are few options available for avoiding or
minimizing the adverse effects of large surface mines, the Panel believes that the use of
conservation offsets may be necessary.
[32] The Panel recognizes that numerous issues and challenges are related to the regional
environmental effects of oil sands development. It is clear that critical issues about oil sands
development are increasingly not project specific, and successful management of these issues is
often not the sole responsibility of an applicant or proponent. As has been the case with other
recent decisions on mineable oil sands development, many of the concerns and issues related to
this proposal have to do with the pace of development of the mineable oil sands and the capacity
of the regional environment to absorb these developments without creating effects that result in
further development not being in the public interest. The Panel believes that a more integrated
and comprehensive approach is required to adequately address cumulative effects of mineable oil
sands development. While the LARP is an essential first step, its value will be fully realized only
when all of its frameworks and thresholds are in place and being applied. The Panel encourages
the government of Alberta to continue the processes associated with implementation of the LARP
on an urgent basis.
Effects on Aboriginal Traditional Land Use, Rights, and Culture
[33] The Panel finds that the Project will result in the loss of lands and some resources used
for TLU activities and that this will affect some Aboriginal people who use the Project area. The
Panel finds that the mitigation measures proposed by Shell are not sufficient to fully mitigate
these effects. The Panel believes, however, that project effects alone are unlikely to destroy or
fundamentally alter the ability of the Aboriginal groups to practise TLU activities or to exercise
their rights. The Panel therefore finds that project effects, while adverse, are not likely to be
significant.
[34] In contrast, the Panel finds that project effects, in combination with the effects of other
existing, approved, and planned developments and other disturbances in the region surrounding
the Project are likely to result in significant adverse cumulative effects on Aboriginal TLU,
rights, and culture. The Panel finds that significant areas have already been or will be lost for the
purposes of TLU as a result of existing, approved, and planned activities. The Panel also finds
that natural disturbances and other resources important for the practise of Aboriginal TLU,
rights, and culture such as wetlands, old-growth forests, traditional plant potential areas,
migratory birds, and wildlife species, such as caribou, have been or will be subject to significant
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adverse cumulative effects. The Panel recognizes that disturbed areas will eventually be
reclaimed, but this will not occur for many years, some types of habitat cannot be reclaimed, the
landscape will be significantly altered, and some species loss may be irreversible. The long-term
and possibly irreversible nature of these effects has significant implications for the sustainability
of traditional ecological knowledge, TLU practices, Aboriginal and treaty rights, and culture.
[35] The Panel believes that determining the significance of project and cumulative effects on
TLU and on Aboriginal and treaty rights and culture is a complex exercise that cannot be done
simply by looking at the availability of the required resources and access to them. A thorough
and proper assessment requires an understanding and integration of a host of issues, including
effects on the availability of and access to the resources important to Aboriginal people and the
combined effects of noise, odours, barriers to access, perceived contamination of resources,
socioeconomic effects, cultural practices, and other factors that influence the choices of people
about whether to engage in TLU activities. In addition, the number and variety of projects and
activities occurring in the oil sands region, the multiplicity of TLU, rights, and cultural practices
associated with the various Aboriginal groups, and a lack of consensus on the appropriate
methodology and thresholds for determining when significant adverse effects on Aboriginal
TLU, rights, and culture might be occurring make it challenging for individual project
proponents, as well as panels such as this one, to complete these assessments. The Panel agrees
with Shell and the Aboriginal groups participating in this review that completing cumulative
effects assessments on a regional basis, rather than on a project-by-project basis, would be more
effective and would reduce the potential for individual project cumulative effects assessments to
produce inconsistent results.
[36] It is apparent to the Panel that the mitigations being proposed by individual project
proponents are not effective at avoiding significant adverse cumulative effects on TLU in the
Project region. The Panel acknowledges that the intent of the LARP is to take more of a
cumulative-effects-based approach to managing environmental effects in the Lower Athabasca
Region, but notes that the LARP does not specifically address TLU issues. Instead, the LARP
provides for continued consultation and engagement with Aboriginal peoples to help inform land
and natural resource planning in the region. Several of the Aboriginal groups expressed concern
that the LARP does not address their concerns and does nothing to ensure ongoing traditional use
of the land or to protect their Aboriginal or treaty rights. The absence of a management
framework and associated thresholds for TLU makes it very difficult for Aboriginal groups,
industry, and panels such as this one to evaluate the impact of individual projects on TLU. The
Panel believes that to inform land use planning and allow better assessment of both project and
cumulative effects on Aboriginal TLU, rights, and culture, a TLU management framework
should be developed for the Lower Athabasca Region. The Panel recommends that Alberta
develop and implement a TLU management framework for the Lower Athabasca region as a
component of the LARP. The Panel recommends that the government of Alberta develop this
framework with the involvement of all of the Aboriginal peoples who practise their rights in the
oil sands region and who are affected by industrial development.
[37] All of the Aboriginal groups that participated in the hearing raised concerns about the
adequacy of consultation by Canada and Alberta, particularly with respect to the management of
cumulative effects in the oil sands region and the impact of these effects on their Aboriginal and
treaty rights. In its submissions to the Panel on the questions of constitutional law, Canada and
Alberta both advised the Panel that Crown consultation with Aboriginal groups was not complete
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and that the Panel's report would inform the Crown's subsequent decisions about Aboriginal
consultation. The Panel notes that it has determined that the Project may affect Aboriginal TLU,
rights, and culture and that the cumulative effects of existing, approved, and planned
development on Aboriginal TLU, rights, and culture are likely to be significant. The Panel
recommends that Canada and Alberta each consider the Panel’s findings in this report when it
assesses the adequacy of Crown consultation that has occurred to date in relation to the Project,
and when it considers what further consultation may be needed or desirable in order to complete
their respective consultation obligations to affected Aboriginal groups.
Section 5 of CEAA, 2012
[38] Conclusions, mitigation measures, and recommendations related to section 5(1) of the
CEAA, 2012 in this report can be found in the following sections: No Net Loss Plan; Effects of
Tailings Ponds on Migratory Birds; Diversion of the Muskeg River; Effects on Wetlands; Effects
on Old-growth Forests; Effects on Traditional Plant Potential Areas; Effects on Wildlife and
Their Habitat; Human Health; Physical and Cultural Heritage Resources; Capacity of Renewable
Resources; and Effects on Aboriginal Traditional Land Use, Rights, and Culture. These sections
provide the Panel’s findings on
•
the effects on fish and fish habitat, and migratory birds; and
•
with respect to Aboriginal peoples, the effects in Canada of any change to the environment in
health and socioeconomic conditions, physical and cultural heritage, or the current use of
lands and resources for traditional purposes, and to any structure, site, or thing that is of
historical, archaeological, paleontological, or architectural significance.
[39] Conclusions, mitigation measures, and recommendations related to section 5(2) of the
CEAA, 2012 in this report can be found in the following sections: No Net Loss Plan; Water
Withdrawal from the Athabasca River; and Diversion of the Muskeg River. These sections
provide the Panel’s findings on the effects that may be caused to the environment and are
directly linked or are necessarily incidental to a federal authority’s exercise of a power or
performance of a duty or function that would permit the carrying out of the project. For this
Project, the federal regulatory approvals that may be issued are those required by the Department
of Fisheries and Oceans and Transport Canada.
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INTRODUCTION
Application(s)
[40] In December 2007, Shell Canada Energy (Shell) applied to the Energy Resources
Conservation Board (ERCB), in accordance with the Energy Resources Conservation Act
(ERCA) and section 13 of the Oil Sands Conservation Act (OSCA), for an amendment to
Jackpine Mine—Phase 1 (Phase 1) Approval No. 9756 to increase bitumen production at its
Jackpine Mine (JPM). The Jackpine Mine Expansion Project (the Project) includes additional
mining areas and associated processing facilities, utilities, and infrastructure. Shell also applied
to the ERCB to receive third-party oil sands material at the facilities for processing and to
produce and ship oil sands material from the Project for processing at third-party facilities.
[41] Shell submitted an environmental impact assessment (EIA) report to Alberta
Environment and Sustainable Resource Development (ESRD), under Environmental Protection
and Enhancement Act (EPEA), for an amendment to and renewal of the Phase 1, 10-year
operating approval (No. 153125-00-00 as amended). Shell prepared a single EIA to assess the
combined effects of the Project and Pierre Rive Mine project (PRM). Shell also applied under the
Water Act to amend and renew an existing licence to divert water for use at the Phase 1 Project
and for a new licence to divert water from the Athabasca River and other surface and
groundwater sources for the Project. Shell submitted a copy of the EIA to the ERCB and to the
Canadian Environmental Assessment Agency (the Agency) as required by the Canadian
Environmental Assessment Act, 2012 (CEAA, 2012).
[42]
The Project will involve
•
expanding the Phase 1 mining area as shown in figure 1;
•
building ore handling, conditioning, and bitumen extraction facilities, and a high-temperature
froth treatment facility at the Phase 1 site;
•
constructing a new external tailings disposal area (ETDA); and
•
diverting 22 kilometres (km) of the main stem of the Muskeg River.
[43] Phase 1 is about 70 km north of Fort McMurray, Alberta. Shell expects that the
processing capabilities of these modifications and additions will increase the average capacity of
the facilities by approximately 15 900 cubic metres per day (m3/d) of dry bitumen, for a total
average capacity of the expanded facilities of approximately 47 700 m3/d of equivalent dry
bitumen.
[44] ESRD determined that the EIA was complete in October 2010. The Project was subject to
an environmental assessment under the CEAA, 2012 because components of the Project required
authorizations under section 35(2) of the Fisheries Act and section 5(1) of the Navigable Waters
Protection Act (NWPA). On December 13, 2010, the federal Minister of the Environment
referred the Project’s environmental assessment to a review panel.
[45] The OSCA, the EPEA, and the Water Act require provincial approvals for the Project. The
Public Lands Act, the Municipal Government Act, and the Historical Resources Act require
ancillary approvals. The Fisheries Act and the NWPA require federal approvals.
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Joint Review Process
[46] On September 20, 2011, the federal Minister of the Environment and the Chairman of the
ERCB announced the Agreement to Establish a Joint Review Panel for the Jackpine Mine
Expansion Project (the Agreement) for the Project (see appendix 3). The Agreement set up a
three-member panel (the Panel), which will be referred to throughout this report as the Panel, to
review the Project.
[47] The Minister and the Chairman appointed Mr. J. D. Dilay, P. Eng., as the Panel chair and
Mr. A. Bolton, P. Geo., and Mr. L. Cooke as Panel members. The Panel members and secretariat
members visited the site by helicopter on November 16, 2011.
[48] Subsequently, the Minister and Chairman signed an amendment to the Agreement on
June 8, 2012, to coordinate the review process with the proposed Shell PRM. In July 2012, the
Canadian Environmental Assessment Act (CEAA) was repealed and the CEAA, 2012 came into
force. The Panel’s assessment continued under the process established in section 126 of the
CEAA, 2012 as if it had been referred to a review panel under section 38 of the CEAA, 2012. The
Minister and Chairman signed an additional amendment on August 3, 2012, to account for the
CEAA, 2012 changes.
[49] Under the Agreement, the Panel must conduct its review in a manner that discharges the
responsibilities of the ERCB under the ERCA and the OSCA as well as discharging the
requirements set out in the CEAA, 2012. The Panel has all the powers and duties of a panel
described in section 45 of the CEAA, 2012 and of a division of the ERCB described in section 8
of the ERCA. The Agreement described the terms, conditions, and process to be followed by the
Panel when conducting the joint review. The Agreement also described the scope of the
environmental assessment. Table 1 summarizes the key steps of the review process and the
associated timelines.
[50] Shell’s EIA as submitted in 2007 used a base case, an application case, and a planned
development case (PDC) defined as follows:
•
Base case —existing and approved developments
•
Application case—base case plus the Project
•
PDC—application case plus planned developments
[51] On October 3, 2011, the Panel announced a public comment period on the adequacy of
Shell’s EIA and Application. On January 30, 2012, the Panel determined that the information
provided by Shell was not sufficient to proceed to a public hearing and therefore sent
supplemental information requests to Shell.
[52] In May 2012, Shell submitted a response to the Panel’s SIRs and updated its assessment
cases to account for revisions to the September 2011 project inclusion list and separation of the
Project from the PRM effects. Shell referred to these cases as the 2012 base case, the 2012 JPME
application case, and the 2012 PDC. Shell also included a preindustrial case (PIC) to address the
Panel’s SIRs, which it stated represents conditions before substantial industrial development of
the region. Shell stated that because information for some components is lacking, the PIC is
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based on the oldest data available, or on the most representative data available for each
component.
[53] After receiving the additional information from Shell, the Panel announced a second
public comment period to allow the public to review this information. On August 15, 2012, the
Panel determined that more information was required and asked Shell to provide the information
on or before September 7, 2012. Shell committed to providing the information, and the Panel
issued the notice of hearing on August 17, 2012.
[54] The Panel’s report uses the most recent data provided by Shell: therefore, references to
the base case, application case, PDC, and PIC are all for the most recent cases, e.g., 2012 base
case, 2012 JPME application case, 2012 PDC, and PIC.
Date
Key dates in the review process
Process Step
December 20, 2007
Application submitted
January 10, 2008
Application registered with ERCB
May 30, 2008
EIA update submitted
June 16, 2008
Joint notice of application issued (ERCB & ESRD)
October 24, 2008
Round 1 SIR sent (ERCB & ESRD)
December 18, 2009
Response to round 1 SIR
March 2, 2010
Round 2 SIR sent (ERCB & ESRD)
June 4, 2010
Response to round 2 SIR
July 21, 2010
Round 3 SIR (ESRD only)
August 9, 2010
Response to round 3 SIR
October 14, 2010
ESRD determined EIA complete
December 13, 2010
EIA referred to a review panel
May 27, 2011
Additional information submitted
July 22, 2011
Traditional knowledge (TK) and traditional land use (TLU) supplemental information
submitted
September 20, 2011
Joint Review Panel established and agreement announced
October 3, 2011 to
December 16, 2011
Public comment period on sufficiency of information submitted to date
November 15, 2011
Additional information submitted to the Panel by Shell
January 18, 2012
Additional information submitted to the Panel by Shell
January 30, 2012
Round 1 SIR by the Panel
March 1, 2012
Initial response to round 1 Panel SIR by Shell
May 16, 2012
Further response to round 1 Panel SIR by Shell
June 4, 2012 to August
3, 2012
Public comment period on sufficiency of information in responses to Panel SIR
June 8, 2012
Amended Panel agreement signed
August 3, 2012
Amendment #2 to Panel agreement signed
August 15, 2012
Round 2 Panel SIR
August 17, 2012
Notice of hearing issued
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Date
Process Step
September 7, 2012
Response to round 2 Panel SIR by Shell
October 23, 2012
Hearing on questions of constitutional law
October 26, 2012
Panel ruling on questions of constitutional law
October 29, 2012 to
November 21, 2012
Hearing
January 7, 2013
Hearing record closed
Participant Funding Program
[55] The Agency allocated $119 970 2 among the following five applicants to help with their
review of the EIA and their participation in the public hearing: John Malcolm on behalf of the
Non-status Fort McMurray/Fort McKay First Nation (NSFMFM) and Clearwater River Paul
Cree Band No. 175 (Clearwater Band), Patricia Whiteknife, Amanda Annand, Sierra Club
Canada (Prairie chapter), and the Oil Sands Environmental Coalition (OSEC).
[56] The Agency allocated $357 0503 among the following five Aboriginal groups to help
with their review of the EIA and their participation in the public hearing, including prehearing
engagement and consultation activities with the federal government that are linked to the EIA:
Athabasca Chipewyan First Nation (ACFN), Mikisew Cree First Nation (MCFN), Métis Nation
of Alberta Association Region 1; Fort McKay First Nation (FMFN); and Fort McMurray #468
First Nation (FMMFN #468).
Questions of Constitutional Law
[57] Part 2 of the Administrative Procedures and Jurisdiction Act (APJA) states that a decision
maker does not have jurisdiction to determine a question of constitutional law unless it is
designated under the act as having authority to decide the question. Under the Authorities
Designation Regulation, Alta. Reg. 64/2003, the ERCB is a designated decision maker with
authority to decide all questions of constitutional law as defined in the APJA.
[58] Prior to the hearing, the Panel received notices of questions of constitutional law (NQCL)
from the ACFN, the FMMFN #468, and the Métis Nation of Alberta (MNA) (made up of Métis
Nation of Alberta Region 1, Métis Nation of Alberta, Fort McMurray Métis Local 1935, Fort
Chipewyan Local 125, and named individuals). On October 18, 2012, the FMMFN #468 advised
the Panel that the FMMFN #468 would not be pursuing or leading any evidence in support of its
NQCL.
[59]
The ACFN's NQCL posed the following questions:
1) Has the Crown in right of Alberta discharged the duty to consult and accommodate ACFN with
respect to the potential adverse effects of the Project on ACFN's treaty rights, as mandated by
[Treaty 8] and s. 35 of the Constitution Act, 1982?
2) Has the Crown in right of Canada discharged the duty to consult and accommodate ACFN with
respect to the potential adverse effects of the Project on ACFN's treaty rights, as mandated by
[Treaty 8] and s. 35 of the Constitution Act, 1982?
2
Money allocated does not necessarily equate to money disbursed (e.g., if a group did not participate in the hearing).
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[60]
The Panel considered that the MNA's NQCL posed the following question:
1) Has the Government of Alberta upheld its duty to consult with the Métis people whose rights will
be impacted by this project? The MNA asserts that these rights exist and are and have been
asserted by the MNA Region 1 throughout this process.
[61] The Panel provided a process for receiving written submissions concerning any matters
that could bear on the Panel’s jurisdiction over or consideration of the questions presented in the
NQCLs. The Minister of Justice and the Attorney General of Alberta (Alberta), the Attorney
General of Canada (Canada), Shell, and the FMMFN #468 filed written submissions. ACFN and
MNA provided written submissions replying to Alberta’s, Canada’s, and Shell’s submissions.
[62] After considering the written submissions, the Panel decided to hold a hearing session in
Fort McMurray on October 23, 2012, to receive oral argument on the matters addressed in the
submissions. All of the parties that filed written submissions concerning the NQCLs participated
in the oral hearing, except for the FMMFN #468.
[63] On October 26, 2012, the Panel released a written decision stating that it did not have
jurisdiction over the questions of constitutional law, and (in any event) that it would be
premature for the Panel to make a finding on the questions of constitutional law. The Panel
found that it does not have an express grant of statutory authority to consider the adequacy of
Crown consultation in relation to the Project. Although the Panel is empowered by statute to
consider questions of constitutional law relating to the matters before it in this proceeding or
arising from its statutory mandate, the questions presented in the NQCLs do not arise from
either. As a result, the Panel does not have jurisdiction over the questions of constitutional law
raised in ACFN’s and MNA’s NQCLs.
[64] The Panel also found that even if the Panel had jurisdiction over the questions of
constitutional law raised in the NQCLs, it would be premature for the Panel to make a finding on
the adequacy of Crown consultation and make a decision in reliance on that finding (if the Panel
concluded that consultation was inadequate). The Crown conduct that gives rise to the duty to
consult will continue after this proceeding is completed and after the Panel has issued its report.
The Panel's report will inform the Crown’s subsequent decisions about constitutional
consultation, and opportunities will exist for the Crown and Aboriginal groups to continue the
consultation process. When that process is completed, and if the Crown's decision is that
constitutional consultation is adequate, the Aboriginal groups will be entitled to challenge the
Crown's decision if they are not satisfied with the results of that process.
[65] Notwithstanding that the Panel decided that it could not consider the questions of
constitutional law because it did not have jurisdiction to do so, the Panel confirmed that it would
consider all the evidence and argument relating to the potential effects of the Project on
Aboriginal groups and individuals in accordance with the terms of the Agreement.
[66] The Panel set out its reasons for the foregoing decision in a letter from the Panel to all
interested parties dated October 26, 2012 (see appendix 4).
[67] On October 26, 2012, ACFN filed a motion for an adjournment of the hearing to allow
ACFN to apply to the Court of Appeal for leave to appeal the Panel’s decision in relation to the
questions of constitutional law filed by ACFN. Shell, Alberta, and Canada filed written
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responses to the ACFN’s motion. On October 29, 2012, the Panel heard oral submissions on
ACFN’s motion. On October 30, the Panel gave an oral decision denying ACFN’s motion for
adjournment.
[68] ACFN and MNA applied to the Alberta Court of Appeal for leave to appeal the Panel’s
decision of the Panel that it had no jurisdiction to consider their questions of constitutional law.
The Court dismissed the applications on November 26, 2012. On April 11, 2013, the Supreme
Court of Canada dismissed ACFN’s application to obtain leave to appeal the Court of Appeal’s
decision.
Participant Involvement in the Review Process
Industrial Organizations
[69] Imperial Oil Resources Ventures Limited (Imperial) provided a statement of concern to
ESRD in 2008 but later withdrew it. Fort Hills Energy Corporation (FHEC) provided a notice of
intervention, which it later withdrew. Total E&P Canada Limited (Total) stated that it did not
have any specific objections to the Project.
[70] Syncrude Canada Limited (Syncrude) provided a statement of concern to ESRD. It
participated in the hearing by cross-examining witnesses and giving final argument. It did not
oppose the approval of the Project but had some concerns about how the Project could impact
Syncrude’s operations and plans.
[71] Northland Forest Products Limited stated that it was concerned that the Project could
adversely affect the long-term sustainability of its forest management unit, but it did not
participate in the hearing.
Regional Municipality of Wood Buffalo
[72] The Regional Municipality of Wood Buffalo (RMWB) participated throughout the
review process, including providing comments on the draft Agreement and comments on the
sufficiency of Shell’s information and responses to SIRs. It participated in the hearing by sitting
a witness panel, cross-examining other interested parties at the hearing, and making final
argument. RMWB withdrew its statement of concern on October 18, 2012, and said that it did
not object to the Project but remained concerned about the socioeconomic impacts on the region
as a result of oil sands development.
Aboriginal Groups (in alphabetical order)
[73] ACFN provided a statement of concern to ESRD in 2008. It provided written submissions
to the Panel, including comments on the draft Agreement and comments on the response to SIRs
by Shell, some of which it jointly submitted with MCFN. ACFN provided an Integrated
Knowledge and Land Use Report and Assessment for Shell Canada’s Proposed Jackpine Mine
and Pierre River Mine (IKLU Report) that concluded the projects would cause significant
adverse residual effects on ACFN’s knowledge and use. ACFN asked that the Panel not approve
the Project and that a five year moratorium be imposed on further oil sands development while
proper planning is completed and put in place. ACFN participated in the hearing, including
sitting witness panels, cross-examining Shell and other parties, and making final argument.
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ACFN was concerned about project and cumulative effects in the oil sands region on its
traditional way of life, Aboriginal and treaty rights, and culture. It expressed specific concerns
about the Project’s effect on the Muskeg River and about the adequacy of Crown consultation.
[74] The FMFN and Fort McKay Métis Community Association ([FMMCA] also known as
Métis Local #63). Both parties are collectively referred to as Fort McKay. Fort McKay
participated throughout the review process, including providing comments on the draft
Agreement. On October 1, 2012 Fort McKay provided a written submission to participate in the
hearing and requested that the Panel find that the Project is not, at this time, in the public interest
pursuant to the ERCA and recommend to the Governor in Council (GIC) that no approvals be
issued that would allow the Project to proceed, because the Project’s significant and adverse
effects, including its added contribution to the loss and infringement of Fort McKay’s treaty and
Aboriginal rights, are not justified in the circumstances, pursuant to s. 52 and 7 of CEAA, 2012.
[75] On October 26, 2012 and October 29, 2012 the Panel received letters from the FMFN and
FMMCA stating that the FMFN and FMMCA wished to withdraw their objections to the Project
on the basis that they entered into an agreement with Shell regarding the site-specific impacts of
the Project. FMMCA indicated that it was withdrawing all recommendations from its October 1,
2012, submission, except for those related to cumulative effects management and Crown
consultation and accommodation. The letters also stated that FMFN and FMMCA both had
outstanding concerns regarding the cumulative impacts of regional development and the lack of
consultation and accommodation by Alberta and Canada with respect to these impacts on their
lands and Aboriginal and treaty rights. FMFN and FMMCA stated that they intended to
participate jointly in the hearing by legal representation and final argument and reserved the right
to file submissions, cross examine parties and call witnesses. Fort McKay did not provide a
witness panel at the hearing but was represented by counsel who cross-examined interested
parties and provided final argument.
[76] FMMFN #468 provided a letter of objection to the Project on October 2, 2008. It
participated throughout the review process and provided written submissions on the sufficiency
of Shell’s information and response to the Panel’s SIRs. Its legal counsel cross-examined
interested parties and provided final argument; however, it did not sit a witness panel. FMMFN
#468 expressed concerns that Shell did not provide funding for it to complete a technical review
or traditional land use (TLU) study. It had concerns about project and cumulative effects on
terrestrial resources and how these effects would impact its treaty rights and current use of land
for traditional purposes. It also raised concerns about water quantity and quality.
[77] MNA represented members in the region from Lac La Biche to Fort Chipewyan, Alberta,
Métis Locals 1935 and 125, and Métis individuals. MNA participated in the review process,
including providing comments on the sufficiency of Shell’s information and response to the
Panel’s SIRs. MNA participated at the hearing by cross-examining interested parties, providing
witness panels, and providing final argument. MNA indicated that Shell’s EIA was lacking in
information about Métis traditional use. It was concerned about effects on its use of lands and
resources, socioeconomic impacts, and Shell’s and the Crown’s consultation for the Project. It
also raised issues related to capacity funding.
[78] MCFN submitted a statement of concern to ESRD in September 2008. MCFN
participated in the review process by providing written submissions and comments to the Panel,
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including comments on the draft Agreement and comments on the response to SIRs by Shell,
some of which were jointly submitted with the ACFN. The MCFN provided an Indigenous
Knowledge and Traditional Use Report and Assessment for the Jackpine Mine Expansion
Project and Pierre River Mine Project, which concluded that the projects would cause
significant adverse residual effects on MCFN’s rights and indigenous knowledge. MCFN
provided a hearing submission; however, it withdrew its statement of concern on October 2,
2012, stating that it did not object to the approval of the Project but that it remained concerned
about cumulative effects in the Athabasca region and about Crown consultation. MCFN crossexamined the government of Canada and provided closing arguments at the hearing but did not
present witnesses to speak to its filed evidence, nor was its evidence tested through crossexamination or questioning by Shell or the Panel.
[79] The Non-status Fort McMurray and Fort McKay First Nation (NSFMFM) and Clearwater
River Paul Cree Band #175 (Clearwater Band) filed an objection to the Project with the ERCB
on February 23, 2011. The NSFMFM and Clearwater Band objected to the Project on the basis
that it would result in adverse impacts to their rights under section 35(1) of the Constitution Act,
1982. John Malcolm testified that he was the interim Chief of the NSFMFM and the Band
Manager of the Clearwater Band and was authorized to represent the NSFMFM and Clearwater
Band’s interests with respect to consultation and environmental assessment of the Project.
NSFMFM and Clearwater Band participated in the hearing by way of cross-examination, sitting
a community witness panel, cross-examining Shell and other parties and making final argument.
They were concerned about effects on their TLU, culture, socioeconomic conditions, air quality,
and traditional food.
Members of the Public Attending the Hearing
[80] Dr. Anna Zalik and Isaac Osuoka provided a hearing submission. Dr. Zalik participated
in the hearing to present evidence and to cross-examine Shell. Both individuals submitted that
the Project should be denied approval on the grounds that it violates the treaty rights of ACFN
and other Aboriginal peoples and the long-term rights of community members in the area. They
also stated that the Project would have negative consequences for the regional and global
environment and hence would not be in the best interests of Albertans and Canadians.
[81] Donna Deranger identified herself as an ACFN Elder. She made a statement at the
hearing about water quality, traditional use, and socioeconomic and cultural issues. She did not
want to be cross-examined.
[82] Mary Tourangeau stated that she was a member of FMFN. She attended the hearing to
provide evidence that responded to another participant’s evidence concerning Mr. Laviolette’s
use of her trapline. She was available for cross-examination.
Non-Governmental Organizations Attending the Hearing
[83] Keith Stewart of Greenpeace provided a hearing submission and participated in the
hearing by presenting information and being cross-examined. His concerns related to cumulative
greenhouse gas emissions for oil sands projects.
[84] OSEC provided a statement of concern to ESRD. It participated throughout the review
process, including providing comments on the adequacy of Shell’s information. It participated in
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the hearing by way of written submissions, a witness panel, cross-examination, and final
argument. OSEC submitted that the Project would cause significant adverse effects that would
not be mitigated and that it was not in the public interest.
[85] Sierra Club Prairie participated in the hearing by presenting evidence and by crossexamining Shell’s witnesses. It was concerned about the potential that a tailings containment
facility may fail.
Non-Governmental Organizations not Attending the Hearing
[86] Several non-governmental organizations provided letters or written submissions to the
Panel including Alberta Wilderness Association, Keepers of the Athabasca, Sierra Club 3,
ForestEthics Advocacy, Environmental Defence, Nature Canada, World Wildlife Fund Canada,
Earthjustice and Ecojustice, Natural Resources Defense Council, and Keepers of the Athabasca.
[87] Sierra Club’s main concerns related to climate change effects of oil sands extraction,
processing, and combustion and downstream effects of pipeline transport and refining.
ForestEthics Advocacy’s concerns related to effects on the boreal forest and the Athabasca
River, and from tailings ponds and cumulative effects on wildlife and acid rain. It was also
concerned about the increased number of pipelines and First Nation consultation by Shell and the
federal government. Environmental Defence opposed the Project because of concerns about
adverse environmental effects, including effects on wildlife, specifically caribou and migratory
birds, water and air quality, and global warming. Nature Canada was concerned about the longterm effects on specific bird populations, and it questioned the adequacy of Shell’s information.
World Wildlife Fund Canada provided information on the absence of and need for an ecosystem
base flow 4 (EBF) threshold for the Lower Athabasca River. Earthjustice and Ecojustice provided
a submission on behalf of the Center for Biological Diversity, the Council of Canadians,
Environmental Defence, ForestEthics, Friends of the Earth, the National Wildlife Federation, the
Natural Resources Defense Council, and the Sierra Club. The submission discussed the
cumulative effects of oil sands on migratory birds and caribou. The Natural Resources Defense
Council submitted a letter opposing the Project, and it provided information on cumulative
greenhouse gas emissions from the Project and the effects of oil sands mining on migratory
birds. Keepers of the Athabasca provided a submission on cumulative effects of oil sands
development. These groups were contacted by counsel for the Panel to determine if they
intended to participate in the oral hearing, however, none of them indicated an intention to
participate further in the process.
Comments from the Public
[88] The Panel received a form letter from many people urging the Panel to reject the Project.
It focused mainly on air emission effects and tailings waste.
3
Sierra Club as stated here is a United States based national organization that provided separate submissions from
Sierra Club Prairie.
4
Ecosystem base flow — Refers to a threshold streamflow value below which a component of the aquatic
ecosystem is believed to be under increased stress. (Alberta Environment and Fisheries and Oceans Canada. Water
Management Framework: Instream Flow Needs and Water Management System for the Lower Athabasca River..,
February 2007.)
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[89] The Agency received many e-mails entitled “No tar sands expansion” that opposed the
Project, focusing on land and river disturbance and greenhouse gas emissions.
[90] Many people sent e-mails using a form that was not created or provided by the Panel,
expressing various concerns with the Project. A few of these people participated further in the
process (see appendix 1).
[91] Other people sent letters or e-mails to the Panel during the review process, mostly
objecting to the Project.
[92] Clinton Westman provided a hearing submission but could not attend the hearing. His
submission discussed assessing effects of oil sands development on Aboriginal people.
Government of Canada
[93] The Government of Canada participated throughout the review process, providing
comments on the draft Agreement, sufficiency of information, and response to SIRs from Shell.
Departments involved included Department of Fisheries and Oceans Canada (DFO), Transport
Canada (TC), Environment Canada (EC), Natural Resources Canada (NRCan), Health Canada
(HC), and Parks Canada Agency (Parks Canada). DFO, TC, NRCan, and EC provided
submissions and attended the hearing with a witness panel. The Government cross-examined
other participants and made final argument.
[94] Parks Canada stated that it manages and administers Canada’s national heritage and
preserves and presents the rich diversity of Canada’s natural and cultural heritage to the benefit
of Canadians and visitors from around the world. On December 16, 2011, Parks Canada
provided a letter of comment on the sufficiency of the EIA, indicating that the EIA was not
sufficient to go to hearings and highlighted areas where it was deficient which included not using
a preindustrial case, not including the Athabasca River Delta portion of the Peace Athabasca
Delta (PAD) as part of the regional study area (RSA), and not taking into account the Canada
National Parks Act. It did not attend the hearing.
[95] HC stated that it is the federal department responsible for helping Canadians maintain
and improve their health. HC participated by reviewing the Environmental Impact Statement
(EIS) as well as providing technical comments on the additional information for the Project
provided by Shell and determined that there was sufficient information to proceed to a public
hearing. It did not attend the hearing.
[96] DFO stated that it administers and enforces the Fisheries Act and regulations and its
mandate is to ensure the protection of fish and fish habitat. It stated that impacts to fisheries
resources will be minimized if its recommendations, including mitigation measures, follow-up
and monitoring, and fish habitat offsets are met. These recommendations can be found in
appendix 7. DFO also remained concerned about cumulative effects on fish and fish habitat.
[97] EC stated that its mandate is to conserve and enhance the quality of the natural
environment, including water, air, soils, sediments and biota, and that it has expertise,
responsibility, and administration over legislation for migratory birds, federally listed species at
risk, and pollution prevention. It had concerns about local and cumulative effects on species at
risk and migratory bird habitat. It provided information on potential mitigation measures that
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could be used to mitigate the effects on the habitat of these species. It commented on mortality of
migratory birds in tailings ponds. EC also commented on water quality, climate change, aquatic
health, air quality, greenhouse gas emissions, and environmental emergencies. EC’s
recommendations are set out in appendix 7.
[98] NRCan stated that it has expertise in physical hydrogeology, geotechnical slope stability,
geohazards and geotechnical science, forestry, and tailings management. NRCan provided
comment on groundwater quantity, slope stability of mine pit and waste disposal facilities,
tailings management, and volatile organic compound (VOC) emission estimates from tailings. Its
recommendations are set out in appendix 7.
[99] TC stated that it is responsible for federal transportation policies and programs and seeks
to ensure that air, marine, road, and rail transportation are safe, secure, efficient, and
environmentally responsible. TC stated that its mandate with respect to the Project is to ensure
the public right of navigation under the NWPA. TC provided comment on potential effects
related to the Muskeg River Diversion Alternative (MRDA) Mine Plan, the proposed bridge over
the Muskeg River to access the north overburden dump, and the proposed modifications to the
existing Muskeg River Mine Project (MRM) water intake system. Its recommendations are set
out in appendix 7.
Government of Alberta
[100] The Government of Alberta completed its review and determined that the EIA was
complete in October 2010. Alberta opted to not participate in or provide a written submission to
the hearing but advised that it was prepared to provide written responses to any questions the
Panel might have regarding environmental issues. The Government of Alberta was represented at
the hearing for the session on questions of constitutional law.
Hearing
[101] The Panel began the hearing on questions of constitutional law on October 23, 2012, in
Fort McMurray, Alberta and adjourned the same day.
[102] The Panel continued the public hearing in Fort McMurray, Alberta, from October 29 to
November 16, 2012, and in Edmonton, Alberta from November 20 to November 21, 2012. Those
who appeared at the hearing are listed in appendix 1.
[103] At the close of the hearing, a number of undertakings were outstanding. The undertakings
were completed, and the Panel closed the hearing record as of January 7, 2013.
ISSUES
[104] The Panel considers the issues with the applications to be the following:
•
Purpose
•
Need for the Project
•
Alternatives to the Project
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•
Alternative Means of Carrying out the Project
•
Mine Planning and Resource Conservation
•
Surficial Deposit Dewatering and Basal McMurray Aquifer Depressurization
•
Devonian Geohazard
•
Bitumen Recovery and Operating Criteria
•
Asphaltene Rejection
•
Solvent Loss and Release of Untreated Froth Treatment Tailings
•
Tailings Management
•
Accidents and Malfunctions
•
Noise
•
Air Quality
•
Greenhouse Gas Emissions
•
Climate Change Considerations in the Environmental Assessment
•
Change to the Project Caused by the Environment
•
Water Withdrawal from the Athabasca River
•
Potential Effects on Groundwater from Process Affected Water
•
Diversion of the Muskeg River
•
Use of End Pit Lakes
•
Effects on Surface Water Quality
•
No Net Loss Plan
•
Effects of Tailings Ponds on Migratory Birds
•
Methods Used to Assess Effects on Terrestrial Resources
•
Effects on Wetlands
•
Effects on Old-growth Forests
•
Effects on Traditional Plant Potential Areas
•
Effects on Wildlife and Their Habitat
•
Effects on Biodiversity
•
Reclamation
•
Human Health
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•
Physical and Cultural Heritage Resources
•
Social and Economic Effects
•
Capacity of Renewal Resources
•
Effects on Aboriginal Traditional Land Use, Rights, and Culture
•
Regional Effects
[105] In reaching the determinations contained in this report, the Panel has considered all
relevant materials constituting the record of this proceeding, including the evidence and
argument provided by each party. Accordingly, references in this decision to specific parts of the
record are intended to help the reader understand the Panel’s reasoning relating to a particular
matter and should not be taken as an indication that the Panel did not consider all relevant
portions of the record with respect to that matter. The Panel further notes that as a general
principle, if written material was filed in the proceeding and the submitter did not participate in
the oral hearing so as to allow that material to be tested, the Panel has given that written material
less evidentiary weight than other written material that was able to be tested during the oral
hearing.
PURPOSE
Evidence
[106] Shell stated that its objective for proposing the Project was to fully develop its mineable
lease holdings on the east side of the Athabasca River. Shell said that the Project would allow
Shell and the Governments of Canada and Alberta to realize the substantial economic benefits
that would flow from investing in the development of these resources. Shell noted that approval
of the Project, coupled with the previously approved MRM and Phase 1 projects, would
complete the development of its lease holdings on the east side of the Athabasca River.
[107] Interested parties raised no issues related specifically to Shell’s description of the purpose
of the Project.
Analysis and Findings
[108] According to the Agency’s operational policy statement that addresses “need for,”
“purpose of,” “alternatives to,” and “alternative means”, Shell was required to describe the
purpose of the Project from its perspective. The purpose is defined as, “what is to be achieved by
carrying out the project.”
[109] The Panel finds that Shell fulfilled the requirements of the Agency’s operational policy
statement and CEAA, 2012 by providing a clear description of the purpose of the Project.
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NEED FOR THE PROJECT
Evidence
[110] Shell stated that it had an obligation to its shareholders to define and advance
development of the Project lease holdings in economically viable ways. Shell also stated it had a
responsibility to the people of Alberta to develop the resource in a timely and efficient manner.
Shell noted continued development of the Athabasca Oil Sands would provide a secure, domestic
source of crude oil, which can replace diminishing conventional supplies and offset a growing
demand. Shell submitted that the Project is required to meet these needs and to allow Shell to
extend the life of its existing operations and to integrate and optimize such existing operations in
an efficient, economic, and environmentally acceptable manner. Shell further concluded that the
Project would achieve the purposes of maximizing the value of the resource and providing a
supply of bitumen as a source of energy products, for the benefit of Shell’s shareholders,
Albertans, and the broader public.
[111] Shell indicated that its investment in the oil sands would result in increased employment,
income, business revenue, and government revenue. Shell also stated that there were no
alternatives to or functionally different ways to meet the Project need.
[112] OSEC stated that when considering whether the Project was in the public interest, it was
important to note that the bitumen that will be produced will be predominantly for export. It
claimed that the bitumen would not be used to meet Albertans’ or Canadians’ needs.
Analysis and Findings
[113] According to the Agency’s operational policy statement, Shell is required to describe the
need for the Project from its perspective. Need for the project is defined “as the problem or
opportunity that the proposed project is intending to solve or satisfy by establishing the
fundamental justification or rationale for the project.”
[114] The Panel recognizes that OSEC appeared to be of the view that production for export
was less desirable than production to meet domestic needs.
[115] The Panel notes that production benefits such as royalties, taxes, and employment are
important factors affecting Alberta’s and Canada’s economy regardless of where the production
is used.
[116] The Panel finds that Shell adequately provided a description of the need for the Project as
outlined in the Agency’s operational policy statement.
[117] The Panel also finds that, from an AER perspective, there is a need for the Project, to
allow Shell to recover the resource that is owned by the people of Alberta, so that the benefits
can be realized by the people of Alberta and Canada.
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ALTERNATIVES TO THE PROJECT
Evidence
[118] Shell stated that it had considered alternatives to the Project in accordance with the
Agency’s operational policy statement which requires that “any alternative must be capable of
fulfilling the need and purpose identified for the project by the proponent.” Shell noted that the
operational policy statement also confirmed that the level of detail on alternatives should reflect
the conceptual nature of the Project at this stage of the process.
[119] Shell concluded that the development plan described in its application represented the
most practical, economical, and sustainable means of extracting the resource. Shell further
concluded there were no alternatives to or functionally different ways to meet the project need
and achieve the project purpose. Shell claimed a “no development” option was inconsistent with
the need and purpose of the Project and therefore could not be considered an alternative.
Analysis and Findings
[120] According to the Agency’s operational policy statement, Shell is required to describe
alternatives to the project where alternatives to the project are defined as “the functionally
different ways to meet the project need and achieve the project purpose.” Analysis of alternatives
to the project should describe the process the proponent used to determine that the project is
technically, economically, and environmentally viable.
[121] The Panel is satisfied, from both an AER and Agency perspective, that Shell provided
both its rationale for and details relating to technically, economically, and environmentally viable
alternatives to the Project.
[122] The Panel accepts Shell’s view that a “no development” option is inconsistent with the
need and purpose of the Project. The Panel notes that Shell did not describe the criteria used for
evaluating how it reached its “no development” conclusion. However, the Panel is of the view
that, despite a lack of specific detail on how Shell evaluated its alternatives, Shell provided
enough information to have adequately assessed alternatives to the Project.
[123] The Panel believes that Shell provided a rationale for its Project timing which meets the
Agency’s operational policy statement requirements.
ALTERNATIVE MEANS OF CARRYING OUT THE PROJECT
Evidence
[124] Shell provided alternative means analysis on select aspects of the Project including
diversion of the Muskeg River, use of End Pit Lakes (EPLs), and no net loss plan (NNLP)
compensation. These issues are addressed further in other sections of this report.
[125] Shell stated that the use of in situ methods of bitumen recovery, such as steam-assisted
gravity drainage (SAGD), fireflood, and in situ upgrading, were not technically feasible. Shell
indicated that the Project resource is too shallow and not amenable to SAGD. Shell assessed
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other in situ technologies and found these alternatives were not sufficiently developed and
entailed unacceptably high risk. Shell pointed out that the Project is an amendment to an existing
operation and that the introduction of a different technology platform would be incompatible and
would reduce opportunities to leverage synergies with existing operations. Accordingly, Shell
did not consider in situ methods to be alternatives to the Project because existing techniques
would not represent a timely, efficient, and economically viable way of developing the resource,
nor would they maximize the value of the resource. Shell stated that it identified no other
potential alternatives to the Project through its assessment.
[126] Shell stated that one of the alternative means of carrying out the Project related to the
timing of Shell’s potential future development. Shell stated that it had considered delaying its
plans for development and increasing the time gaps between potential expansions. Shell rejected
this approach in favour of a close-coupled expansion approach because Shell concluded that
delaying the Project would erode the potential for economic value to be captured through
development timing and workforce overlap. Shell stated that a gap between project
developments at the JPM site would reduce the value of the opportunity by not being able to roll
engineering, construction, precommissioning, commissioning, and start-up resources from one
project to the next. Shell indicated that it had not considered the environmental impacts of
delaying the Project for a number of years in its various scenarios of alternative means of
carrying out the project.
[127] FMMFN #468 submitted that delaying the Project by ten years would have
environmental benefits and that the likely future increase in the oil price, combined with
uncertainties in pipeline capacity for the coming years, support delaying the Project. FMMFN
#468 explained that if the Project were delayed, it would still be possible for Shell to share its
mining resources (workforce, engineering, etc.) with the MRM, which would still be in
operation.
[128] To address air quality and acid deposition, OSEC recommended a delayed start-up of
operations until 2033 when estimated nitrogen dioxide (NO2) emissions from existing and
approved projects in the region would no longer exceed regulated air quality limits.
[129] Shell disagreed that the Project needed to be delayed until 2033, given NO2 predictions in
the EIA. Shell noted that NO2 levels predicted in the local study area (LSA) were above the
Alberta Ambient Air Quality Objectives (AAAQO) levels. For the RSA, Shell stated that it
predicted exceedances in the application case but that these exceedances were a result of
approved projects in the region. Shell stated that its modelled results were conservative. Shell
said that the Lower Athabasca Regional Plan (LARP) air quality management framework says
that modelling results are only to be used to inform investigation and planning. Shell noted that
the Government of Alberta designed this framework to ensure that actual ambient concentrations
stay below these levels in the region, and indicated that Alberta would require industry to adapt
its plans, as necessary, to ensure that air quality in the region is protected.
Analysis and Findings
[130] According to the Agency’s operational policy statement, Shell is required to describe
alternative means for carrying out the Project. Alternative means are defined in the statement as,
“the various technically and economically feasible ways the project can be implemented or
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carried out including alternative locations, routes, and methods of development, implementation,
and mitigation.”
[131] The Panel believes that Shell provided a rationale for its Project timing that meets the
Agency’s operational policy statement and CEAA, 2012 requirements. The Panel finds Shell’s
rationale for not delaying the Project in light of additional costs to Shell’s operation to be sound.
[132] The Panel finds that Shell provided sufficient information on the alternative means of
carrying out the Project and that Shell selected appropriate options.
[133] The Panel believes that a delay in the approval of the Project will not significantly
contribute to the protection of the environment because air emissions will not be allowed under
the LARP to exceed the maximums specified by the air management framework and that the
Project, if approved, should not be delayed.
MINE PLANNING AND RESOURCE CONSERVATION
Evidence
[134] Shell said that it shares a common lease boundary with two approved oil sands projects—
Syncrude Aurora South Mine and Imperial Kearl Oil Sands Project (KOSP).
[135] Shell stated that it has a cooperation agreement with Imperial dated March 4, 2009. This
agreement states that both Shell and Imperial will employ the mid-ore mining solution along
their common lease boundary, which can be seen in figure 1. According to the timelines
presented, Shell will approach the lease boundary before Imperial. In following the mid-ore
mining solution, Shell would remove all of the overburden on its side of the boundary, then
remove enough overburden on the Imperial side of the boundary to allow Shell to mine the ore
down to the mid-ore elevation at the boundary location. This would establish a pit wall that
straddles the lease boundary, with ore remaining on the Shell side of the boundary, in the toe of
the wall. Shell would then construct a berm along the toe of the wall and leave all of the
remaining ore for Imperial.
[136] Shell stated that it also has a cooperation agreement with Syncrude dated March 20,
1997, for the areas in which Shell is planning to mine along the common lease boundary with
Syncrude, which can be seen in figure 1. This agreement states that Shell will employ the midore mining solution along the common lease boundary. The remaining ore would be left in place,
as Syncrude is not planning to develop the area. Shell also said that it is working to reach an
agreement with Syncrude for the South external tailings disposal area (ETDA) where Shell is
planning a surface disturbance. However, no ore mining is set to take place on Shell’s side of the
lease boundary in the South ETDA area.
[137] Shell stated that it has no commercial agreement with FMFN for mining near their
common lease boundary, which can be seen in figure 1. Since there is no agreement for
cooperation across the lease boundary, all of Shell’s development must occur on the Shell side of
the lease boundary. The Muskeg River Diversion Channel (MRDC) would dictate the pit limit at
the north end of the common lease boundary. Shell would leave a boundary pillar in place
between the pit crest and the lease boundary at the south end of the common lease boundary.
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[138] In closing arguments, Shell committed to working with all adjacent leaseholders to
address any lease boundary issues that may arise.
[139] Shell further stated that it would work with both Syncrude and Imperial to coordinate
reclamation and watershed drainage. Shell noted that if the issues cannot be resolved between the
parties, the dispute will be brought to the AER for adjudication.
[140] Shell identified the potential failure mechanisms for its mine slopes, including slumping
of saturated glacial materials, sliding on weak layers at residual strength, and flows in rich oil
sands ore. Shell stated that the presence of weak layers in the mining sequence was the most
important stability issue. Shell incorporated a preliminary setback distance of 150 metres (m)
from pit crest to the toe of the overburden disposal area (OBDA), based on industry practice and
experience at MRM. Shell applied a safety design factor of 1.1, which it agreed was close to the
critical condition of 1.0. Shell noted that the setback of the OBDA to a mining pit wall was site
specific and said that it would do a detailed geotechnical analysis at the location of each OBDA
pit wall interaction.
[141] The North ETDA would be surrounded by mine pits as mining progresses on the Shell
and Imperial leases. Shell established a 200 m setback from the North ETDA to accommodate
the surrounding mining activities, based on an assessment of the foundation materials under the
South ETDA dikes. Shell also provided a preliminary stability assessment of dike pit wall
interactions to show that there was adequate setback.
[142] Shell indicated that the mine plan would involve mining through a part of the Muskeg
River and that it would divert the river by an open channel at that point. Where the Muskeg
River would not be mined through, Shell proposed a minimum 100 m setback from the
undisturbed reaches of the Muskeg River to the pit crest. Where the pit wall is not constrained by
an OBDA or an ETDA, Shell proposed 60 m operational setbacks.
[143] Shell said that it changed the Muskeg River diversion from a pipeline to an open channel
and stated that it did not, at the conceptual stage, consider lining the open channel. However,
Shell also stated that determining if lining is required would be a part of its detailed investigation
program.
[144] NRCan stated that Shell did not justify its proposal for a near critical slope condition of
1.1 for its proposed waste dump and pit slope stability. NRCan stated that slope stability was a
potential environmental and safety concern for both the pits and the tailings/waste disposal
facilities. NRCan stated that it recognized that some of these detailed technical questions might
be addressed by the proponent during regulatory permitting. NRCan recommended that the Panel
consider requiring that Shell inform the AER on how it intends to address any unfavourable
slope conditions.
[145] Shell stated that it based the design criteria on data from geotechnical laboratory testing
from the MRM and Phase 1, regional data, and experience. Shell understood the need for sitespecific information and detailed geotechnical analysis at both the construction and operation
phases.
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Analysis and Findings
[146] The Panel accepts Shell’s and Imperial’s agreement to employ the mid-ore mining
solution to eliminate resource sterilization along their common boundary.
[147] The Panel accepts Shell’s commitment to work with Syncrude on updating the
cooperation agreement for the areas where Shell is planning to mine along the common lease
boundary. The Panel also accepts Shell’s commitment to reach an agreement with Syncrude on
the South ETDA area where only surface placement is to occur.
[148] The Panel requires Shell to submit a lease boundary update five years before any
disturbance along a particular common lease boundary, unless some other period is stipulated by
the AER upon application by Shell. The lease boundary update should include any update to the
agreement between the common boundary leaseholders, the mining or disturbance plan along the
boundary, and any changes from the evidence given by Shell in this proceeding in relation to the
boundary.
[149] The Panel believes that Shell’s assessment of the preliminary pit wall designs and
setbacks is satisfactory for planning purposes at the conceptual level. The Panel understands that
Shell plans to carry out detailed site investigation and analysis before any earth work begins. The
Panel notes that section 24 of the Oil Sands Conservation Regulation (OSCR 24) requires that
Shell provide a detailed geotechnical design to the AER.
[150] The Panel is concerned about the stability of the pit wall for the MRDC between the toe
of the North OBDA and the mine pit crest, given that Shell's design criteria is for near critical
stability conditions. The channel adds a load and pore pressure that could cause potential
instability. The Panel requires Shell to provide, for AER approval, a geotechnical interaction
assessment of the North OBDA, the MRDC, and the pit wall before any earth work begins at the
interaction area of the North OBDA, the MRDC, and the pit wall.
SURFICIAL DEPOSIT DEWATERING AND BASAL MCMURRAY AQUIFER
DEPRESSURIZATION
Evidence
[151] Shell stated that before overburden stripping and mining operations, it must dewater
surficial deposits that are present including overburden materials and the Pleistocene Channel
Aquifer (PCA). Shell proposed to do so by draining shallow groundwater through surface
trenches and removing water by pumping from water wells. Operational surficial deposit
dewatering will also be required beside active mine areas to limit surface water inflows from
adjacent undisturbed land into active mine areas. Shell stated that it will manage surficial deposit
waters removed through these operations in an open-circuit system, returning them to the
environment to maintain/supplement surface water flows.
[152] Shell stated that it must also depressurize the Basal McMurray Aquifer underneath the
ore zone to facilitate safe mine operations and to limit water ingress into active mining areas. It
stated that groundwater removal using pumping wells will lower the groundwater level to a safe
level below the base of the mine. Water within the Basal McMurray Aquifer may have naturally
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poor quality and therefore will be handled within a “closed-loop” system to prevent those poorquality waters from potentially impacting the surrounding environment.
[153] Dewatering and depressurization will result in a period of decreased groundwater levels
and alterations in groundwater flow patterns near the Project during operations and into the postclosure period. Potential effects of the decline in groundwater levels include a reduction of
groundwater discharge to surface water bodies, including wetlands and the Muskeg River and its
tributaries. Specifically, Shell predicted that lenticular and patterned fens at the north end of the
proposed development would experience water level drawdown between 0.1 m and more than
1.0 m as a result of dewatering, which is discussed further in the Effects on Wetlands section.
Reduced groundwater discharge and lowered groundwater levels could potentially affect surface
water flows and vegetation. MCFN, ACFN, and Fort McKay expressed particular concern over
those effects and about their ability to continue pursuing their traditional lifestyles.
[154] Shell stated that it completed conservative groundwater modelling at both the regional
and local scales to evaluate the potential effects of dewatering and depressurization. It
constructed those models with regional data, available site-specific data, and commonly accepted
values presented in scientific literature. It built into its models the assumption that all dewatering
and depressurization activities will occur simultaneously but said that in reality, those operations
will be progressive, operating ahead of the mining face, and ceasing after mine operations have
passed and backfilling is completed.
[155] Shell stated that its groundwater modelling demonstrated that groundwater level
drawdowns of more than 0.1 m in surficial deposits will mainly be confined to the LSA.
However, there is the potential for this level of drawdown to extend beyond the LSA towards the
west and north. Substantially greater groundwater level drawdowns will happen near the
pumping locations. Shell anticipated decreases in discharge to surface water bodies near the
Project. To mitigate reductions in surface water flows, it will release water from the open-circuit
water collection system to the surface water system to maintain minimum flow levels.
[156] Shell indicated that dewatering of the PCA by adjacent operations could also affect
groundwater levels in the LSA. Shell stated that dewatering the PCA at Phase 1 and the KOSP
would cause groundwater level drawdowns of less than 20 m in an area up to 2 km from the
southeastern boundary of the LSA. Shell stated that it did not predict any residual overburden
dewatering effects for the LSA after dewatering ceased at the Aurora South and KOSP mining
areas by 2065.
[157] Shell stated that groundwater modelling indicated a potential decline in groundwater
levels of 0.01 m near the McClelland Lake Wetlands Complex (MLWC); this would be a
minimal impact within natural variability and would not require mitigation. FHEC expressed
concern that the Project could directly impact its protection plan for the MLWC, which was a
requirement of AER Decision 2002-089 for the Fort Hills Oil Sands Project (FHOSP). Shell did
not agree that the proposed Project would impact FHEC’s plan, and committed to ESRD that it
would establish a monitoring program before mining the northern parts of the Project. The
monitoring will allow Shell to develop mitigation plans before advancing mining activity into
that area, if required. Shell indicated that it currently has groundwater monitoring piezometers
installed on the north end of the Project development area.
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[158] Shell stated that its models showed that drawdown of groundwater levels in the Basal
McMurray Aquifer will remain largely within the lease area but will extend beyond that
boundary to the west and south because of the continuity of the aquifer unit in those directions.
However, it predicted that depressurizing the Basal McMurray Aquifer will not result in reduced
flow in the Athabasca River, which is more than 10 km to the west.
[159] On the basis of the results of its groundwater models, Shell predicted that groundwater
levels and flow patterns in areas not directly disturbed by mining will largely return to premining conditions once dewatering and depressurization stops. Shell said that it will manage
groundwater levels and flow patterns within disturbed areas through design of the closure
landscape. In those areas, it will control groundwater conditions by managing groundwater levels
and directing flows towards the EPLs.
[160] NRCan stated that Shell had done its numerical modelling and impact assessments
appropriately, and the results seem to reasonably predict future conditions. However, NRCan
concluded that there is a lack of field data/evidence to support simulated predictions. NRCan
noted that Shell used few sources of local hydrogeological data to construct the models, assigned
single values to geological units that are extensive in area, and used literature values in some
situations. It said that there was a potential for large errors in groundwater levels, in the range of
a few metres, which might be acceptable on the regional scale, but could result in important
impacts at the local scale.
[161] NRCan recommended that Shell conduct groundwater monitoring to confirm its
predictions of the groundwater models. NRCan recommended that Shell be required to review its
groundwater models regularly and update them as more site-specific monitoring data becomes
available, to verify the predictions of the current models, and to increase confidence in the results
of future updated models.
[162] Shell agreed with NRCan’s recommendation to regularly update hydrogeology models
using collected field data, and indicated that it will incorporate the Project area into existing
Phase 1 models when supporting data is available.
[163] Shell stated that it had a drilling program in progress to further understand the extent of
the PCA. Shell said that it would require additional information on the PCA to design an
appropriate dewatering program that would dewater the PCA effectively. Shell further stated that
it would implement a groundwater monitoring program prior to operation of the Project to
establish baseline conditions and provide for informed mitigation of dewatering-related effects.
Shell said that it would continue to work cooperatively with both Syncrude and Imperial to
ensure that proposed mitigation measures for the PCA remain appropriate.
Analysis and Findings
[164] With respect to groundwater modelling, the Panel finds that although Shell had limited
site-specific data available to it for the construction of its models, it made adequate use of
available data and used appropriate professional judgment and scientific literature data in lieu of
site-specific data. The Panel understands that collection of site-specific data is challenging at the
early stages of project planning, but it also notes that adequate site-specific data is crucial for
appropriate mine planning and that more site-specific field data will be collected in the future.
Regular updating of the models with field data will allow the simulated results to be confirmed
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and predictions of the current models to be verified. The Panel accepts Shell’s commitment that
it will incorporate the Project into existing Phase 1 models once more site-specific data is
available.
[165] The Panel recommends to ESRD that it require Shell to update its groundwater models
when field data is available, and to inform affected stakeholders of any significant changes to
model predictions resulting from the incorporation of site-specific data.
[166] On the basis of the evidence before it, the Panel finds that the potential effects of
dewatering and depressurization would be largely limited in magnitude and duration, with the
exception of the potential effects on the lenticular and patterned fens immediately north of the
proposed development (discussed further in the Effects on Wetlands section). Notwithstanding
effects on the lenticular and patterned fens, the Panel believes that Shell has proposed
appropriate mitigation techniques to maintain surface water flows such that they will not be
negatively affected by dewatering activities. The Panel acknowledges that all dewatering
activities, including the Basal McMurray Aquifer depressurization, will be subject to licensing
under the Water Act, which includes associated monitoring and reporting requirements. The
Panel agrees with Shell that its Basal McMurray Aquifer depressurization activities at the Project
will not likely affect the Athabasca River.
[167] The Panel understands that there is no previous industry experience with mining through
the PCA. It notes that Shell is currently working on plans for PCA dewatering and mining, as
Phase 1 will be the first mine to conduct mining operations through such buried channels. The
Panel believes that PCA groundwater level drawdown and mining has the potential to result in
cross-lease drawdown, groundwater flow pattern changes, and mining safety issues. The Panel
notes Shell’s commitment to cooperate with adjacent leaseholders in the matter of cross-lease
connectivity of the PCA and associated mining activities. The Panel requires Shell to provide an
update on its plans for dewatering and mining through the PCA five years before mining
operations reach the PCA. The update is to include a description of any changes that Shell
intends to make when dewatering and mining the PCA as a result of Shell’s experience at Phase
1.
DEVONIAN GEOHAZARD
Evidence
[168] In October 2010, Shell experienced ingress of deep saline aquifer water into Cell 2A of
its MRM site while it was conducting base of feed ore clean up operations. The saline water
ingress was contained within Cell 2A. Shell stated that the saline water ingress had stopped after
reaching hydraulic head balance with the pore pressure in the deep aquifer. The incident resulted
in some ore sterilization and a loss of storage space for tailings. Consequently, Shell had to
revise its mining and tailings plans to accommodate the Cell 2A incident. Shell has not yet
identified the failure mechanism that resulted in the ingress of saline water.
[169] The ACFN was concerned that the Project could detrimentally impact the quality of
water in the Athabasca River as a result of potential Devonian limestone rupture and deposition
of deleterious substances into the Athabasca River and its tributaries. The ACFN was also
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concerned about the potential that rupture contamination from the deep Devonian aquifer would
affect the water quality of pit lakes.
[170] Shell noted that the MRM Cell 2A incident had provided it with valuable experience
preparing for and managing future incidents in the unlikely event that they occur. Shell noted
that in the event of an ingress incident similar to Cell 2A, the impact could be ore sterilization,
changes to the mine plan or tailings plan, and a requirement to plan mitigation measures to seal
the ingress.
[171] Shell stated that it considered the environmental effects on local freshwater supplies and
vegetation due to saline water ingress in the Project pits to be negligible because the expected
stabilized water levels would be lower than the top of the McMurray Formation. Low
permeability oil sands in the McMurray Formation would effectively contain any saline water
that might enter a pit. Shell further stated that it had entered into agreements with a number of
industry participants to share data to understand the regional Devonian geology better.
[172] Shell stated that it would carry out a site-specific risk assessment at the Project following
its geohazard protocols. Shell identified a number of potential risk management activities that
could be used to minimize the potential for future problems with saltwater ingress, such as
establishing absolute pit bottom, leaving a buffer zone that leaves some ore in place, or grouting
and sealing fractures or passageways before mining the ore.
[173] As a result of the Cell 2A incident, Shell initiated a Devonian geoscience program.
Through this program, Shell developed a geohazard management protocol for MRM and
Phase 1. The protocol includes identifying geological risk, assessing the risk potential, and
executing plans with operational measures, where necessary. The protocol established absolute
elevation below which no mining activity takes place. The protocol also recommends leaving an
ore buffer zone in high risk areas.
[174] In the event that deep saline aquifer inflow occurs, Shell’s geohazard management
program would implement control measures such as sealing or grouting the water pathways and
sand sequestration of the saline water in the containment cell/pond.
[175] Shell stated that it would complete its geohazard management assessment for the Project
within one to two years after approval.
Analysis and Findings
[176] The Panel notes that the Cell 2A incident is the first of its kind in the oil sands and that no
established procedure exists to manage incidents related to ingress of water from a deep, saline
aquifer.
[177] The Panel notes that while Shell has some level of understanding of Devonian geology
and deep aquifer conditions, Shell’s information and interpretation does not include a detailed
understanding of local site-specific conditions. The Panel understands that it is hard to justify
detailed study when the study is very expensive and there was no past experience with an
incident of a similar nature. The Cell 2A incident shows now that there is a need for detailed
understanding of local bedrock (Devonian) geology and deep aquifer conditions. The Panel
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commends Shell for entering into agreements with other operators on data sharing about
Devonian geology.
[178] The Panel notes that any occurrence involving saline aquifer ingress may impact resource
recovery, operational safety, and the environment. Therefore, proper proactive measures should
be in place.
[179] The Panel believes that Shell’s stated intention to complete a geohazard management
assessment within one to two years of approval may be optimistic. However, the Panel accepts
Shell’s phased approach to assessing the Devonian geohazard in advance of mining operations.
The Panel believes that the geohazard assessment should be a continuous process that requires
site-specific study as a part of the mine planning and operational program. The Panel also
believes that the level of understanding could be improved and thus a risk assessment could be
adaptively implemented if site-specific Devonian geological characterization is put in place. The
Panel requires Shell to provide an updated geohazard management plan as a part of its annual
mine plan submission, commencing with the expansion mining operations.
BITUMEN RECOVERY AND OPERATING CRITERIA
Evidence
[180] Shell stated it based its selection of its bitumen mining and extraction process on the need
to produce a diluted bitumen product that will meet pipeline specifications and downstream
processing and marketing requirements. The process selected provides Shell the opportunity to
integrate its expanded operations with existing facilities. Shell stated that the process and
facilities will meet or exceed the bitumen recovery requirements of AER Directive 082:
Operating Criteria: Resource Recovery Requirements for Oil Sands Mine and Processing Plant
Operations (Directive 082). 5
[181] Shell stated that since start-up of the MRM in 2002, it had been compliant with the
bitumen recovery requirements of Directive 082 at MRM for two years (2005 and 2006). Shell
stated that it had implemented numerous bitumen recovery improvements at MRM, but it did not
believe that these changes would be sufficient to achieve bitumen recovery compliance. Shell
said that it was evaluating further modifications to improve bitumen recovery at MRM.
[182] Shell stated that it started Phase 1 in August 2010 and that the Phase 1 extraction design
included improvements over MRM, including a longer slurry conditioning line, primary
separation cell design improvements, and additional flotation capacity. Shell stated that Phase 1
did not meet the bitumen recovery requirements of Directive 082 in 2011 due to instability
throughout the first twelve months of operations. Shell expected Phase 1 to meet the bitumen
recovery requirements of Directive 082 for 2012.
[183] Shell stated that the Project extraction design was similar to that of Phase 1. Shell stated
that it will incorporate improvements currently being made at the MRM and Phase 1 to help
improve bitumen recovery performance for all oil sand grades. It said that it will use the
5
Replaces and supersedes Interim Directive (ID) 2001-07: Operating Criteria: Resource Recovery Requirements for
Oil Sands Mine and Processing Plant Sites
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knowledge gained from these two operations to improve the performance of the Project’s
facilities.
[184] Shell stated that there is a relationship between bitumen recovery and ore blend,
specifically grade, clay fines, and ions in the ore. Shell believed that it has sufficient data to
develop and execute a mine plan that will supply an acceptable plant feed that allows it to meet
bitumen recovery requirements.
[185] Shell committed to submit to the AER, two years before construction, details of the
bitumen recovery improvements that Shell will implement as part of the Project.
[186] Shell stated that it will provide measurement plans to the AER one year before plant
start-up. Shell stated that it expects that the startup and commissioning plans for the Project will
be required by the AER at least one year before plant start-up.
[187] Shell stated that it will pursue integration with and optimization of existing facilities.
Shell stated that regulatory approval of the overall development plan, coupled with flexibility in
the manner in which approved developments are executed, would be a prerequisite to enabling
the most effective development.
Analysis and Findings
[188] The Panel notes that Shell failed to meet the bitumen recovery requirements of Directive
082 at both MRM and Phase 1 in certain years, and that Shell did not expect to meet the bitumen
recovery requirements at MRM with existing facilities but did expect to meet them at Phase 1 in
2012. The Panel reminds Shell that these criteria are the minimum acceptable level of
performance, and it expects operators to design their plant facilities and mining operations to
meet them.
[189] Shell’s proposed Project extraction process is similar to that used by Shell at Phase 1. The
Panel understands that Shell is evaluating a suite of recovery initiatives and that Shell will apply
knowledge gained at Phase 1 to the Project’s design. The Panel requires Shell to provide a
bitumen recovery improvement plan for AER approval two years before construction. This plan
must include details of all bitumen recovery improvements Shell intends to incorporate into its
expanded Jackpine Mine plant (i.e., Phase 1 and the Project) design and mine plan.
[190] The Panel requires Shell to provide measurement plans for AER approval one year before
the expanded Jackpine Mine plant start-up. These plans must include process and
instrumentation diagrams, metering, sampling methods, analytical methods, and material balance
procedures that satisfy AER measurement requirements.
[191] The Panel requires Shell to provide a commissioning and start-up plan for AER approval
one year before the expanded Jackpine Mine plant start-up.
[192] Shell discussed the need for flexibility in the manner in which approved developments
are executed and the need for an integrated approach. The Panel accepts this approach with the
understanding that MRM, Phase 1, and the Project are all interconnected. Shell’s MRM and
Phase 1 are currently subject to high risk enforcement action for failure to meet bitumen
recovery requirements. The 2012 enforcement action suspends all currently approved expansion
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plans that relate to, or that are intended to achieve, increased bitumen production capacity at
MRM and Phase 1. The enforcement action states that if and when Shell is able to demonstrate to
the AER’s satisfaction that both MRM and Phase 1 are consistently achieving the Directive 082
bitumen recovery requirement, the AER will be prepared to consider rescinding the suspension
outlined above. Therefore, the Panel directs that the Project will be subject to the same
enforcement actions currently being applied to the MRM and Phase 1 approvals.
ASPHALTENE REJECTION
Evidence
[193] Shell stated that it will process bitumen froth using a high-temperature paraffinic froth
treatment process. Shell stated that bitumen normally contains about 17 mass per cent
asphaltenes and that the mixing of bitumen froth and solvent at a specific solvent-to-bitumen
ratio results in the precipitation of asphaltenes. The final product is partially deasphalted bitumen
containing small amounts of solids and water. The precipitated asphaltenes will be discharged
with the tailings solvent recovery unit (TSRU) tailings to the tailings ponds or deposition
locations.
[194] Shell stated that the current design basis of the high temperature paraffinic froth
treatment process was to reject less than 10 mass per cent asphaltene based on bitumen
production. Shell stated that the asphaltene rejection level was a balance between upstream
bitumen recovery and final bitumen quality. The higher the asphaltene rejection, the higher will
be the quality of bitumen produced and the lower will be the bitumen recovery. Shell stated that
it needed the ability to deliver bitumen of a quality that was compatible with a broad range of
upgraders, specifically those using hydroconversion or catalytic processes.
[195] Shell committed to limiting asphaltene rejection to 10 mass per cent based on bitumen
production on an annual average basis, consistent with the existing Phase 1 approval. Shell stated
that it would discuss changes to the rejection limit with the AER if it saw an opportunity to
optimize value.
Analysis and Findings
[196] The Panel notes that Shell has proposed a process that would result in asphaltene
rejection and disposal of asphaltenes as a component of the TSRU tailings stream. The Panel
accepts that higher quality bitumen provides a more marketable product but is concerned about
the rejection of asphaltene, which is a potentially usable resource. The Panel believes that
asphaltene rejection should be minimized in order to maximize resource recovery and utilization
and to minimize the amount of asphaltenes deposited in the tailings ponds.
[197] The Panel accepts Shell’s commitment to limit asphaltene rejection to 10 mass per cent
based on bitumen production on an annual average basis. The Panel requires as a condition of
approval that Shell must provide to the AER annually, on or before February 28, a calculation
showing the amount of asphaltene rejection based on bitumen production, for the previous year
of operation. The Panel also requires that on an annual average basis, the amount of asphaltene
rejection must be limited to 10 mass per cent based on bitumen production.
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SOLVENT LOSS AND RELEASE OF UNTREATED FROTH TREATMENT TAILINGS
Evidence
[198] Shell stated that its froth treatment plant would include a two-stage, high-temperature
countercurrent decantation process, a solvent recovery unit, and a two-stage TSRU. The TSRU
would recover solvent from the froth treatment tailings before discharging tailings to the tailing
ponds or deposition locations. Shell committed to limiting solvent losses from all sources to no
more than four volumes per thousand volumes of bitumen production on an annual average
basis. Shell committed to not discharge untreated froth treatment tailings to any tailings ponds or
deposition locations during normal operations.
Analysis and Findings
[199] The Panel notes that it is important to recover the solvent used in the bitumen extraction
process for health and safety, resource recovery, and environmental reasons.
[200] The Panel notes that on a monthly basis, operators have been able to demonstrate solvent
losses of less than 4 volumes of solvent per 1000 volumes of bitumen production. However, this
has not been demonstrated to be sustainable on an annual average basis. The Panel also notes
that estimated emissions as a result of solvent losses of less than 4 volumes of solvent per 1000
volumes of bitumen production are not expected to result in the exceedance of the AAAQOs or
result in adverse health effects.
[201] The Panel accepts Shell’s commitment to limit solvent losses to no more than 4 volumes
of solvent per 1000 volumes of bitumen production, on an annual average basis as is presently
required by the AER for MRM and Phase 1. Therefore, the Panel requires as a condition of
approval that on an annual average basis, Shell must limit site-wide solvent losses to not more
than 4 volumes per 1000 volumes of bitumen production. This calculation must be based on sitewide losses and must include all solvent losses during all operating conditions.
[202] The Panel accepts Shell’s commitment to not discharge untreated froth treatment tailings
as is presently required for Phase 1 and MRM. Therefore, the Panel requires as a condition of
approval that Shell not discharge untreated froth treatment tailings to the tailings ponds or
deposition locations.
TAILINGS MANAGEMENT
Evidence
[203] Shell stated that it had expanded its Phase 1 tailings management plan to include the
Project. The plan would
•
implement three tailings technologies to capture fines by thickened tailings (TT), nonsegregating tailings (NST), and mature fine tailings (MFT) centrifugation;
•
place the MFT centrifuged cake on the TT and NST dedicated disposal areas (DDAs); and
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•
achieve annual and cumulative Directive 074: Tailings Performance Criteria and
Requirements for Oil Sands Mining Schemes (Directive 074) compliance.
[204] Shell stated that it required a new ETDA to accommodate expanded production. It said it
will operate the new ETDA as a sand dump with a minimum volume of fluid tailings.
[205] Shell said that it would start placing its TSRU tailings on the JPM site subaqueously
when the Project starts up. In addition, Shell stated that it would not transfer tailings between the
JPM and MRM sites. Shell committed to have zero fluid tailings volume at closure. It would
therefore not place any fluid tailings in EPLs.
[206] Shell stated that the Project thickener design was similar to that of Phase 1. Shell noted
that the solids content of the Phase 1 thickener underflow was less than expected due to a lower
fines content in the ore body. Shell stated that it had placed high priority on modifying the Phase
1 thickener to produce an underflow with higher solids content. Shell will continue to improve its
understanding of fines in ore, which will benefit not only the thickener design and performance,
but also contribute to overall operations, such as ore blending, bitumen extraction, and tailings
management planning. Shell also stated that it would incorporate the knowledge it gained from
existing thickener operations into the Project thickener design and operation.
[207] Shell stated that it will continue to collaborate with industry through Canada’s Oil Sands
Innovation Alliance (COSIA) to evaluate alternative tailings technologies and optimize their
application. However, Shell stated that it would take almost a decade to develop a new
technology from conceptual idea to commercial implementation.
[208] Shell based its Project EIA on subaqueous TSRU tailings placement. However, Shell
noted that it treated the Phase 1 froth on the MRM site and placed the TSRU tailings subaerially,
instead of subaqueously, on the beach of the MRM external tailings facility.
[209] Shell stated that although the ERCB had initially conditioned the MRM approval to
require subaqueous TSRU placement, when Shell subsequently encountered operational
challenges the AER granted an amendment to allow subaerial placement. Shell stated that it had
a monitoring program in place for the MRM external tailings facility to confirm that subaerial
placement was not causing odour problems. Shell indicated it would apply for approval of
subaerial placement on the JPM site if that approach proved to be successful on the MRM site.
Analysis and Findings
[210] The Panel is concerned about the viability of the Project’s tailings management plan
since Shell has not been able to demonstrate the success of its thickener technology at its Phase 1
operation. All three fines capture technologies cited by Shell rely on the success of thickener
technology. The Panel is concerned that thickener underperformance may hinder fines capture
rate by TT. On the basis of Shell’s experience to date, the TT deposit formed by a low solids
content thickener underflow has been unable to meet the Directive 074 strength requirements.
The Panel is similarly concerned about Shell’s fines capture rate by NST because off-spec NST
produced by low solids content thickener underflow will not be able to meet the Directive 074
strength requirement. Consequently, the fines capture rate by MFT centrifugation would be
limited by the shortage of placement area because only the beach areas of TT and NST deposits
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would have adequate strength for the centrifuged cake placement, instead of the whole areas of
those deposits as planned.
[211] For Shell to fulfill its commitments if the thickener cannot produce a suitable product, it
will need to implement alternative technologies with sufficient fines capture capacity in a timely
fashion. The Panel is concerned about the potential delay of compliance with Directive 074
because Shell indicated that it would take almost a decade to identify a technology and take it to
full-scale commercial implementation.
[212] The Panel is also concerned that Shell’s thickener underperformance would result in the
TT deposit not developing into a trafficable deposit in a timely manner. It would then,
potentially, be left as a soft deposit in an above-ground structure at the end of mining operation
and would not be maintenance free.
[213] The Panel concludes that Shell’s Project tailings plan is overly optimistic and may not be
achievable. However, the Panel recognizes that Shell has made improving the Phase 1 thickener
performance a high priority. Shell intends to continue improving its understanding of fines in ore
and will incorporate the knowledge gained from existing operations into the Project’s thickener
design. Shell will also continue to develop other technologies to improve its tailings
management. The Panel requires Shell to provide a tailings management plan for AER approval,
two years before the expanded project start-up. The plan must indicate that Shell will be
compliant with Directive 074 from the time of start-up.
[214] The Panel acknowledges that Shell has applied for subaqueous TSRU tailings placement.
The Panel is concerned that if Shell proposed to change to subaerial placement similar to MRM,
the solvent in the TSRU tailings would be directly exposed to air, which might change the
conclusions of the EIA. The Panel believes that monitoring for subaerial TSRU placement at the
MRM site should include not only odour emissions, but also VOC emissions. The Panel notes
that Shell would need to apply if it wished to change the TSRU placement on the JPM site to
subaerial, and in doing so it would need to address whether that change affects the conclusions in
the EIA.
[215] Directive 074 is part of a larger initiative to regulate mineable oil sands tailings. It is the
first step toward reducing fluid tailings and expediting the formation of trafficable deposits.
Future policies, specifically the tailings management framework being developed by the
Government of Alberta, will provide operators with further direction for managing and
reclaiming oil sands tailings.
[216] Despite its concerns about the potential delay in the Project’s tailings plan complying
with Directive 074, the Panel recognizes that Shell’s commitment to have no fluid tailings at
closure surpasses Directive 074 requirements in the long term. Shell’s commitment is aligned
with other recently approved mineable oil sands projects. Both the Joslyn North Mine project
and FHOSP committed to eliminate fluid tailings completely at the end of mine life, and the
AER conditioned its approvals to require such elimination. The commitment addresses one of the
long-term objectives of tailings management: to minimize and eventually eliminate long-term
storage of fluid tailings in the reclamation landscape. Therefore, the Panel requires Shell to have
no fluid tailings at the end of the mine’s life.
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ACCIDENTS AND MALFUNCTIONS
Evidence
[217] Shell assessed potential environmental effects of accidents and malfunctions associated
with Project activities and facilities, including hydrocarbon releases, mining activities, surface
water incidents, air quality control, and migratory birds landing in tailings areas. For information
on migratory birds landing on tailings ponds, see the Effects of Tailings Ponds on Migratory
Birds section. Of the accident scenarios Shell evaluated, it considered only an accidental release
of solvent to the tailings facility and a process upset causing emergency flaring as likely events,
but it considered the environmental consequences of both of these scenarios to be low. Shell
stated that hydrocarbon pipeline loss of containment and spill into a watercourse, ETDA dike
failure, overburden disposal area failure into the Muskeg River, and tailings pipeline failure over
a watercourse were of high environmental consequence. However, Shell said that the likelihood
of these accidents actually occurring was remote to very unlikely.
[218] Sierra Club Prairie conceded that the risks of oil sands tailings containment failures are
low but stated that they are far from remote. It believed that the worst single environmentally
damaging event would be failure to contain a tailings dike and a resulting release of toxic tailings
into the Athabasca River or its tributaries. It stated that many of the tailings ponds were next to
water bodies, creating concerns about both massive failures and smaller leakages from existing
tailings ponds and from future remediated or buried tailings.
[219] Shell stated that it modelled a worst-case scenario that demonstrated a failure would
result in a peak flow of 1.65 m on the Athabasca River at Fort McKay about six hours after the
breach, which is within the range of flood levels for the Athabasca River. Shell said that the
worst-case failure would therefore not affect public health and safety.
[220] Shell considered whether and to what extent such a failure would affect communities,
water bodies, and recreational sites. Shell identified linkages with Fort Chipewyan, Fort McKay
leases, Kearl Lake, Jackpine Creek, Muskeg River, Athabasca River, Peace-Athabasca Delta
(PAD), Wood Buffalo National Park, and all wildlife receptors. Shell determined that Fort
McKay, Fort McMurray, trapper cabins, the Naumr River, Poplar Point, worker camps, MLWC,
Isadore’s Lake, and Quarry of the Ancestors would not be impacted if a dike failure occurred.
Shell stated that the direction of the dike failure would determine which receptors would be
affected. Shell determined that there would be little to no effect on people and moderate-to-high
effects on environmental components and wildlife habitat, but no population-level effect on any
of the wildlife species.
[221] Sierra Club Prairie did not believe that Shell appropriately examined the sensitive
elements of the environment as requested by the Panel in its SIRs, and it said that a worst-case
scenario would affect the Fort Chipewyan community and surrounding wildlife more adversely
than Shell predicted.
[222] Shell stated that it invests a significant amount of time and money to ensure that
preventative measures are in place. Shell noted that it has established an independent
geotechnical review panel to assess the risk in the design and operation of the tailings dam. Other
design measures that Shell committed to implement include
2013 ABAER 011 (July 9, 2013) • 39
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•
designing the dam in accordance with the Canadian Dam Association (CDA) guidelines;
•
having the design approved by ESRD;
•
constructing the dam to accommodate heavy rain;
•
having the dam constructed and assured by independent panels;
•
operating, maintaining, and monitoring the dam in accordance with the Mining Association
of Canada’s (MAC) Guide to the Management of Tailings Facilities;
•
having the dam reviewed by the AER annually; and
•
conducting regular audits.
[223] Shell committed to a monitoring program to ensure that design conditions are met and to
correct conditions as needed. Shell stated that it would monitor
•
the water table to indicate dike stability;
•
slope inclinometers to indicate stability;
•
general dike condition;
•
pond water levels to indicate potential for overtopping; and
•
exit flows from drains for volumes, water quality, suspended sediments, and water chemistry.
[224] Shell stated that in the event of a failure, it would take immediate actions to
•
implement its emergency response system;
•
secure the immediate area and ensure workers are safe and accounted for;
•
divert flows away from the ETDA and/or shut down tailings production;
•
request aid support as required; and
•
initiate remedial works as appropriate.
[225] Shell noted that there has never been a dam failure in the oil sands. Sierra Club Prairie
rebutted that this was not correct because data collected by the International Commission of
Large Dams indicated that there have been three major accidents in Canada’s oils sands. Shell
explained that these losses of containment were not the result of a tailings dike breach and should
be considered “minor incidents.”
[226] Sierra Club Prairie said that it would like to see improved accessibility to reports such as
emergency preparedness plans; emergency response plans; operation, maintenance, and
surveillance manuals; the annual tailings dam performance reports; and the five-year dam safety
reviews. Sierra Club Prairie stated that it could not verify Shell’s determination of no adverse
effects because it was unable to review these documents. Shell stated that it does not publicly
disclose the information contained in emergency response plans and safety audits because it
could be used for mischief.
[227] Sierra Club Prairie noted that Shell had not completed a cumulative effects assessment
(CEA) that considered a tailings dam breach. It recommended that Alberta and the federal
government, with the engagement of industry, First Nations, and stakeholders, undertake a
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rigorous CEA that include a quantitative analysis of the risk of oil sands tailings containment
failure throughout the Athabasca watershed, with an analysis of consequent environmental
effects and appropriate mitigation measures.
Analysis and Findings
[228] The Panel is satisfied that Shell has evaluated applicable accident and malfunction
scenarios and has prepared reasonable contingency plans to prevent accidents and malfunctions.
The Panel also believes that Shell has identified appropriate mitigation measures to address
potential accidents and malfunctions, should they occur. The Panel finds that Shell provided
information on sensitive elements of the environment and included these elements in its
assessment of the effects of potential accidents and malfunctions.
[229] The Panel agrees that if a tailings dam failure occurred the effects would be catastrophic,
long-term, beyond regional, and thus significant. However, the Panel also agrees that the
probability of a failure is extremely low. Furthermore, the Panel finds that the likelihood of
multiple failures occurring from multiple oil sands mines and resulting in a cumulative impact is
extremely remote. Accordingly, the Panel finds that a CEA, as suggested by Sierra Club Prairie,
is not necessary. The Panel is confident in these findings because tailings dams are designed,
constructed, and operated in accordance with the CDA guidelines and MAC Operation,
Maintenance and Surveillance Manual for Tailings and Water Management Facilities, and
because provincial regulators review and approve detailed geotechnical designs for tailings
dams, emergency preparedness and response plans, and annual performance reports, and they
require an independent five-year dam safety review for each dam. The Panel agrees that the
losses of containment that have been reported in the oil sands are minor incidents and recognizes
that the proven record of safe operation of tailings dams indicates a robust system of design,
operation, and government regulatory oversight, and as a result the risk to public safety is
extremely low.
NOISE
Evidence
[230] Shell presented a noise impact assessment (NIA) that concluded that the Project would
meet the requirements of Directive 038: Noise Control (Directive 038). Shell’s NIA indicated
that effects from traffic and construction would be negligible. Shell’s NIA also indicated that
assessed wildlife species affected by noise will habituate to the disturbance effects of the Project
and it predicted that disturbance effects would be negligible. Shell did not expect that outdoor
noise levels from the three aircraft flights per day that it assessed would cause significant indoor
noise fluctuations resulting in sleep disturbance.
[231] Shell based most of the sound power level information used in its NIA on theoretical
calculations. Shell indicated that there was a possibility that the equipment and location of
equipment in the NIA could be somewhat different, depending on the final engineering design
and detailed mine plan. Shell also indicated that it would update the NIA to reflect changes to the
bird deterrent system and to the future turnover to tier IV haul trucks. Fixed equipment will
include any noise control needed to meet the Alberta Occupational Health and Safety Act
(OHSA) design requirements.
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[232] Shell indicated that it had not yet taken actual sound level measurements of the Phase 1
operations that began in August 2010. Shell committed to completing a post-construction
monitoring report for Phase 1 in 2013, and stated it would be willing to accept this as a condition
of approval. Shell also committed to completing a post-construction survey for the Project.
[233] ACFN indicated that noise effects from the Project include loss of enjoyment of its
members’ lands, practice of treaty rights, disturbance of bison from chronic noise, and
intentional disturbance of migratory birds and flyways from bird cannons.
[234] Fort McKay stated that the cumulative impact of noise from present and future mining
operations continues to be a concern for Fort McKay.
[235] NSFMFM and Clearwater Band expressed concern about wildlife and about noise effects
of bird cannons on migration flyways.
[236] EC asked the Panel to recommend that Shell evaluate noise levels in residual habitat and
implement mitigation measures to reduce noise effects to an average noise disturbance threshold
of 48 decibel A-weighting (dBA).
Analysis and Findings
[237] The Panel finds that the NIA provided by Shell is technically complete. While the Panel
acknowledges that the Project will result in an increase in noise in the area, the Panel believes
that the noise mitigation measures proposed by Shell are appropriate.
[238] The Panel requires Shell to provide, within one year after expansion operations start-up, a
post-construction, comprehensive sound monitoring survey of the Project, including
measurements of expansion equipment, to verify compliance with Directive 038.
[239] The Panel requires Shell to provide an update to its NIA or complete a comprehensive
sound monitoring survey to demonstrate compliance with Directive 038 after its selection of new
tier IV haul trucks.
AIR QUALITY
Project Effects
Evidence
[240] Shell stated that the Project’s air emissions sources include natural gas-fired cogeneration
units and boilers, diesel-fired mobile equipment fleet, and fugitive emissions. Shell confirmed
that it was applying to use a natural-gas fired cogeneration plant to provide steam and electricity
for the Project and that it was not currently seeking approval to recover asphaltene energy.
[241] Shell noted that the Project’s stationary combustion equipment will have nitrogen oxide
(NOX) controls with the best available technology that is economically achievable. Shell stated
that it would use ultra-low sulphur diesel fuel in its mine fleet and committed to purchasing
mobile equipment that would meet the applicable NOX management standards at the time of
purchase.
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[242] Shell characterized the 129 ambient air quality parameters it assessed in the application
case as having a negligible to low effect with no significant adverse environmental effects.
[243] Shell predicted that the base case and application case operations would result in
exceedances of the annual AAAQO for NO2 in the LSA and RSA and at the Project’s fence line.
Shell maintained that the predicted exceedances were not caused by the Project’s emissions but
by the cumulative effects of multiple operations in the area. Shell noted that predictions at
community receptors were below the NO2 objectives.
[244] OSEC stated that the Project would be a significant source of NO2 emissions. OSEC
noted that Shell had modelled NOX emissions based on the assumption that its mine fleet, and
the mine fleet of all other operators, would be replaced by tier IV-compliant fleets by the end of
2024 at the latest. OSEC noted that Shell’s predictions of future ambient air concentrations of
NOX were not conservative because Shell testified that it would not commit to ensuring that its
mine fleet met tier IV standards by 2025. EC stated that the mine fleet would be a significant
source of the Project’s NOX emissions, and noted that depending on the availability of tier IV
trucks, Shell may have underestimated the Project’s mine fleet NOX emissions. EC
recommended that Shell consider vehicle emission testing in its mine fleet management plan.
[245] Shell stated that its assessment of the mine fleet emissions was reasonable and
conservative because it assumed that the highest annual mine fleet emissions would occur every
year over the life of the Project.
[246] Shell noted that transition to tier IV trucks would likely occur by 2025. Shell
acknowledged that if tier IV trucks were not available by 2025 as it had assumed, the emissions
from its mine fleet would be higher and the resulting ground-level concentration would be higher
than Shell predicted. Shell maintained that although it could not make a commitment that would
tie it to a supplier’s technology development, it would commit to continuing to work closely with
the equipment suppliers to develop equipment that is more energy efficient and emissions
friendly. Shell also noted that although it is not currently considering retrofitting its mine fleet to
reduce NOx emissions, it would work toward reducing the size of its truck fleet, fuel costs, and
maintenance and provide the highest reliability and uptime possible in order to maximize
equipment efficiency and reduce emissions.
[247] OSEC maintained that Shell did not provide any information about what measures it
would take to reduce mine fleet emissions if monitored air quality exceeded thresholds. OSEC
stated that because Shell provided no mitigation, approving the Project would contravene the
LARP air quality management framework. OSEC recommended that as a minimum, Shell be
required to measure end-of-pipe emissions from its mine fleet and report those emissions
annually.
[248] Shell stated that the region was already having odour incidents from existing projects.
Shell predicted that there would be an increase in the number of hours in which the peak odour
levels would exceed odour thresholds as a result of the Project. Shell stated that because this
increase was minimal, the residents within the regional communities would not likely be able to
notice any change in odour levels.
[249] Fort McKay expressed concerns about more odours, deteriorating air quality in general,
and potential associated adverse health effects in its community. Fort McKay said that there was
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a gap in regulations and standards to manage odours and urged the Panel to recommend to
relevant governments that they implement odour regulations and standards forthwith. Shell stated
that it would continue to support the monitoring of the air in Fort McKay.
[250] NSFMFM and Clearwater Band expressed concerns about dust emitted from the Project’s
mine face and tailings pond. Shell stated that its normal practice was to water its roads during
spring, summer, and fall and that results from monitoring at Wood Buffalo Environmental
Association (WBEA) station 9 indicated that dust was being kept to a minimum.
[251] Shell maintained that although Project contributions to regional air emissions were small,
it would still do its part to help manage regional air quality and would commit to several
operational standards as part of the Project, including
•
meeting the best regulatory standards available for cogeneration units and boilers;
•
conforming to the Canadian Council of Ministers of the Environment (CCME)
Environmental Guidelines for Controlling Emissions of Volatile Organic Compounds from
Above-Ground Storage Tanks;
•
identifying and controlling plant-wide fugitive emissions using the protocol recommended by
the Canadian Association of Petroleum Producers (CAPP) Management of Fugitive
Emissions at Upstream Oil and Gas Facilities;
•
minimizing flaring and complying with AER Directive 060: Upstream Petroleum Industry
Flaring, Incinerating, and Venting (Directive 060);
•
meeting the emission standards that apply at the time of purchasing mine fleet vehicles, and
regularly maintaining the mine fleet;
•
monitoring truck idling, and implementing pit-stop practices to minimize idling during shift
changes;
•
using condition-based monitoring and maintenance rather than time-based maintenance to
ensure optimal fleet performance;
•
managing TSRU tailings deposition to maintain an annual average rate of 4 volumes of
solvent per 1000 volumes of bitumen produced;
•
managing slash burning according to Shell’s Environmental Management System procedure;
and
•
watering roads during dry periods to control road dust.
[252] Shell predicted that all polycyclic aromatic hydrocarbons (PAH) compounds and metals
would be below the AAAQO limits or other applicable criteria. Shell stated that it had conducted
a fairly extensive modelling analysis in order to understand the effects of aerial deposition of
PAHs and metals on water bodies. Shell concluded that the Project’s air emissions would not
result in any measurable change in water quality in the region.
[253] Shell estimated that the background potential acid input (PAI) levels would have already
exceeded the critical loads of 18 lakes before there was any industrial development. Shell noted
that 21 lakes would exceed critical loads in the base case. Shell maintained that no lakes
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exceeded their critical loads as a result of the Project in the application case. Shell predicted that
there would be negligible acidification effects on soil, vegetation, and water receptors and that
none of the 414 model lakes would become acidified as a result of the Project.
[254] Shell maintained that it had designed the Project to result in less acid-forming emissions,
and its environmental assessment was both consistent with regional guidance and conservative
because it assumed that all developments would be operating at full capacity simultaneously,
which is unlikely to be the case.
[255] OSEC noted that Shell had not identified how the Project would avoid increasing acid
deposition, contrary to the Acid Deposition Management Framework. OSEC stated that the
Project would cause exceedances of the limits in the Acid Deposition Management Framework,
and it was not in the public interest to approve it. OSEC stated that approval should be granted
only if there was a net-zero contribution to PAI.
Analysis and Findings
[256] The Panel notes that Shell predicted that all PAH compounds and metals were below the
AAAQO levels or other applicable criteria.
[257] The Panel notes that there are predicted exceedances of the AAAQO for fine particulate
matter (PM2.5) in the base case and application case. The Panel notes Shell’s argument that the
predicted exceedances were due to existing and approved projects in the region, and there were
no increases in predicted concentrations as a result of the Project’s emissions.
[258] The Panel notes that air emissions are an important concern for a number of stakeholders
and acknowledges Fort McKay’s concern regarding odours. The Panel notes that although there
is a lack of regulations or standards aimed specifically at odours, attention is paid to odour
control by limiting emissions of odorous products, including fugitive ones, responding to odour
complaints, and following up on the complaints. The Panel expects Shell to follow through
diligently on its commitments regarding the Project’s operational standards.
[259] The Panel believes that proponents of new or expanding oil sands schemes in Alberta
need to be aware of reasonably foreseeable changes to current emissions standards and new
environmental management frameworks and need to incorporate flexibility into project design to
facilitate retrofitting of improved controls. As changes to current source emission standards are
reasonably foreseeable and may need to be applied retroactively to ensure that LARP limits are
not exceeded, the Panel expects that Shell, as well as proponents of new and expanding oil sands
projects, will incorporate sufficient flexibility into their projects so that they can achieve
compliance with future standards within a reasonable timeframe.
[260] The Panel is of the view that the Project is not likely to result in significant adverse
environmental effects on air quality, provided that the mitigation measures and the Panel’s
recommendations are implemented.
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Cumulative Effects
Evidence
[261] Shell stated that the Project’s contribution to NOX and sulfur oxide (SOX) emissions
would constitute less than 1 per cent of regional emissions. Shell predicted that the planned
development case (PDC) operations would result in exceedances of the annual AAAQO for NO2
in the LSA and RSA. Shell maintained that the exceedances would not be caused by the Project’s
emissions but by the cumulative effects of multiple operations in the area.
[262] Shell stated that its modelling showed that the LARP limits would be exceeded for NO2 in
the base case and therefore no exceedances of the LARP limits would be as a result of the
Project. OSEC noted that Shell forecasted exceedances of the level 4 thresholds 6 for NO2
established in LARP, with the base case already exceeding the annual limits. Shell noted that
LARP was clear that modelling results were to be used for regional planning purposes and not for
predicting exceedances. OSEC noted that LARP was intended to guide decision makers in
deciding what activities should be allowed to occur in the area.
[263] OSEC stated that NOX emissions have been steadily rising in the region, as confirmed by
the WBEA monitoring stations. OSEC noted that in 2011, the WBEA Millennium monitoring
station recorded annual NO2 emissions at two-thirds of the LARP limit (30 micrograms per cubic
metre [µg/m3]), at which point immediate management action is required. OSEC stated that this
measurement occurred at a time when production levels were between 500 000 and
1 500 000 bbl/d, corresponding to about half of all approved projects in the region. Shell noted
that the WBEA Millennium station had shown a consistent trend of decreasing NO2 emissions
since 2007, and NO2 concentrations measured at all WBEA stations were well below the
AAAQO and LARP limits.
[264] Shell predicted that the annual AAAQO for sulphur dioxide (SO2) would be exceeded in
the RSA for the PDC. Shell maintained that the exceedance was related to population growth in
Fort McMurray. Shell stated that for all other assessment scenarios, including at regional
community receptors, SO2 concentrations were below the AAAQO and LARP limits. Shell noted
that regional sulphur emissions had been declining due to installation of flue-gas scrubbing at
Suncor and Syncrude.
[265] Shell predicted that, in all three assessment scenarios, the 24-hour concentrations for
PM2.5 were above the AAAQO at the fence line, and in Fort McKay, Fort McMurray, Cabin J,
Cabin K, and the Oil Sands Lodge. Shell noted that the exceedances were due to existing and
approved projects in the region, but there was no increase in predicted concentrations as a result
of the Project’s emissions. Shell also noted that its assessment indicated that Fort McMurray’s
background PM2.5 concentration would already be above the AAAQO. Shell maintained that the
exceedance at its fence line was primarily due to mine fleet activities at adjacent operations and
that there will likely be limited or no public access to the area.
[266] OSEC stated that Shell excluded developed areas from its regional assessment and that
there was no basis for doing so. Shell noted that the Alberta Air Quality Model Guideline
allowed the exclusion of developed areas in dispersion modelling. Shell stated that ambient air
6
LARP level 4 is the limit at which the ambient air quality exceeds the air quality limit.
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quality limits did not apply within disturbed areas because they are subject to OHSA Guidelines
within the fence lines.
[267] Fort McKay stated that there was a need for better emissions controls to limit the impact
that industrial developments have on regional air quality. Fort McKay noted that it would
continue to rely on regulators to diligently manage and monitor air emissions to ensure that air
emissions would not continue to rise at the current growth rate.
[268] OSEC stated that recent studies had found significantly elevated mercury levels in the
snowpack near oil sands facilities, and fugitive emissions from mine fleets were the likely source
of local deposition of mercury and other metals. Shell stated that the Project would have nearly
negligible emissions of metals, as confirmed in Shell’s current reporting trends in the National
Pollutant Release Inventory (NPRI) database. OSEC stated that research has shown that
considerably more particulate matter and trace metals were released from oil sands facilities than
were reported to the NPRI, and the NPRI excludes mine fleet emissions from reporting
requirements. Shell stated that studies have shown that 99 per cent of mercury emitted to the
environment was retained by the watershed and did not contribute to changes in mercury
concentrations in water. Shell noted, however, that its modelling assessment was highly
conservative because it assumed that nearly all aerially deposited metals would reach the water
bodies.
[269] OSEC noted that recently released abstracts from ongoing research studies showed
findings of concentrations of PAHs and metals close to existing mine sites. Shell maintained that
the recently released abstracts were preliminary results that had not yet been vetted by the
scientific community. It noted that recently published research papers had confirmed that the
deposition rate of PAHs in the PAD had not been increasing since the 1950s despite oil sands
development and that most of PAH deposition was of natural origin.
[270] OSEC stated that Shell’s EIA indicated that PAI levels already exceeded the Acid
Deposition Management Framework’s critical levels in 2 grid cells and 21 lakes in the base case.
OSEC noted that Shell predicted exceedances of the PAI levels to increase to 23 lakes in the
PDC.
[271] Shell maintained that its assessment indicated that 23 lakes would exceed critical loads in
the PDC; however, a predicted exceedance of a critical load did not mean that a lake is suffering
from adverse effects due to acid deposition but rather that monitoring should be done on the lake
as a precaution.
[272] Shell stated that work done by the Cumulative Environmental Management Association
(CEMA) indicated that the region was well below the Acid Deposition Management Framework
criteria, and published documents by WBEA showed little change in NO2 levels in the region
since 1998. Shell stated that it would continue to provide a leadership role in regional initiatives
that address the issue of acid deposition, including support for nitrogen deposition monitoring
done by the WBEA’s Terrestrial Environmental Effects Monitoring Program.
Analysis and Findings
[273] The Panel understands that Shell’s model predictions indicate that PAI levels exceed the
critical loads for a number of lakes as set by the Acid Deposition Management Framework. The
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Panel notes that the PAI in the base case already exceeds the guidelines and although the Project
will contribute to further increase these values in the application case and the PDC, they do not
cause the guidelines to be exceeded. The Panel notes that Shell did not provide any specific
mitigation strategies because it emphasized that the Project’s acidification effects will be
negligible. The Panel expects that the model predictions will show even further increases in PAI
levels as more oil sands projects are proposed. The Panel finds that because the region is well
below the Acid Deposition Management Framework criteria, there will be no significant adverse
effects. The Panel recommends that the government of Alberta conduct regional monitoring to
verify model predictions. The Panel believes that regional monitoring will provide the data to
ensure that action can be taken to ensure that there are no negative effects from acid deposition.
[274] The Panel notes that Shell predicted exceedances of the AAAQO for PM2.5 in the PDC
due to existing and approved projects in the region and that it predicted no increases in
concentrations as a result of the Project’s emissions. The Panel also notes Shell’s argument that
Fort McMurray’s background PM2.5 concentration would already be above the AAAQO. The
Panel is of the view that exceedances already exist in the baseline case due to conservative
assumptions in the modelling and that the Project would not materially change the frequency of
exceedances.
[275] The Panel notes that Shell’s model predictions indicate that the AAAQO and LARP limit
for SO2 would be exceeded in the RSA for the PDC. The Panel believes that the Project would
not be a major source of sulphur emissions.
[276] The Panel notes that Shell’s modelling predictions indicate that the LARP limits for NO2
will be exceeded in the RSA and LSA in the base case, application case, and PDC. The Panel
acknowledges that recent regional modelling predictions have consistently shown exceedances of
the AAAQO and LARP limit for NO2; however, current monitoring trends have not shown
exceedances of these limits.
[277] The Panel is of the view that many oil sands facilities have been approved but not yet
built and that model predictions serve as a warning that the AAAQO and LARP limits may be
exceeded when all approved oil sands facilities become operational. However, the Panel believes
that the LARP air quality management framework provides an appropriate mechanism for
managing NO2 and SO2 emissions to avoid exceedances of the AAAQO and LARP limits.
[278] The Panel also recognizes that LARP establishes that modelling should be used to
understand the relative impact of future development plans on, and trends in, ambient
concentrations. In this regard, the Panel believes that the predicted exceedances are likely due to
conservative assumptions in the modelling and that actual exceedances are not likely to occur to
the extent and frequency forecast. The Panel also notes that monitoring results and time will be
available to allow for adaptive management adjustments if needed and that triggers and limits for
NO2 and SO2 are designed to identify and prevent exceedances of critical thresholds before they
occur.
[279] For the reasons expressed above, the Panel is of the view that the Project is not likely to
result in significant adverse cumulative environmental effects on air quality provided that the
mitigation measures and the Panel’s recommendations are implemented.
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GREENHOUSE GAS EMISSIONS
Project Effects
Evidence
[280] Shell stated that it would employ the following principles in managing greenhouse gas
(GHG) emissions:
•
be a leading company in carbon dioxide (CO2) mitigation;
•
address direct emissions from facilities;
•
include the cost of CO2 in the evaluation of all significant growth projects; and
•
optimize and continuously improve energy efficiency in existing operations and in the design
of new facilities
[281] Shell stated that the Project would have greenhouse gas emissions from direct emission
sources generated on site, including emissions from the natural-gas fired cogeneration units,
boilers, and mine fleet. The Project’s indirect emissions would be generated in association with
grid-sourced electricity consumption and would only occur when the cogeneration units are shut
down.
[282] Shell noted that the Project would contribute approximately 1.2 million tonnes of GHG
emissions in CO2 equivalent per year (Mt CO2e/yr). Shell stated that the Project’s GHG intensity
would be 32.3 kilograms (kg) CO2 equivalent per barrel of bitumen produced (CO2e/bbl).
[283] Shell maintained that governments must set policy to encourage greater energy efficiency
and emission reductions across all economic sectors. Shell stated that the Project would comply
with the requirements of Alberta’s Specified Gas Emitters Regulation and any future federal
regulatory requirements.
[284] Shell indicated that it would proceed with its Quality Urban Energy Systems of
Tomorrow (QUEST) carbon capture and storage project. Shell noted that QUEST planned to
capture more than one million tonnes of CO2 per year beginning in 2015. Shell stated that
QUEST was not a project-specific mitigation but would be used to offset emissions from all of
its heavy oil and oil sands operations by apportioning benefits across its operations.
[285] OSEC stated that the Project's emissions at 1.2 megatonnes per year would increase
Alberta’s emissions by 2.5 per cent relative to 2010 emission levels. OSEC noted that Shell
generated GHG emission estimates without considering the full lifecycle of emissions. OSEC
also noted that the Project failed to offer any improvements in GHG emissions intensity over
Phase 1.
[286] OSEC stated that Shell had failed to show how it would effectively mitigate the Project’s
GHG emissions, as most of the proposed mitigation practices were vague, business-as-usual, or
not specifically tied to the Project.
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[287] EC noted that Shell had provided general mitigation options but did not provide specifics,
particularly how the proposed mitigation options would mitigate GHG emissions from the
Project. EC concluded that it was unclear how Shell’s mitigation options would fully mitigate the
effects of GHG emissions from the Project.
[288] OSEC recommended that the Panel withhold approval for the Project until Shell provides
a detailed plan demonstrating how Shell will mitigate the GHGs emitted by the Project and how
Shell will reduce GHG emissions from the Project to a level less than that of a conventional oil
and gas operation of similar size at start-up. OSEC also recommended that the Panel require
Shell to have an operational carbon capture and storage system in place by 2020 to offset Project
emissions.
Analysis and Findings
[289] The Panel recognizes that Shell has committed to investing in energy efficiency projects,
alternative fuels, and lower carbon energy sources in order to manage GHG emissions.
[290] The Panel acknowledges Shell’s intent to proceed with the QUEST carbon capture and
storage project in Fort Saskatchewan, Alberta which Shell expects will capture more than one
million tonnes of carbon dioxide per year beginning in 2015. The Panel further notes it is Shell’s
intention to apportion some of the benefits from this initiative to the Project. The Panel
encourages Shell to offset more greenhouse gas emissions by implementing additional measures
elsewhere.
[291] The Panel is of the view that the Project meets existing GHG regulatory requirements and
is not likely to result in significant adverse environmental effects from GHG emissions, provided
that the mitigation measures proposed are completed and implemented.
Cumulative Effects
Evidence
[292] Shell noted that the Project’s GHG emissions of approximately 1.2 Mt CO2e/yr would
represent 0.5 per cent of Alberta’s emissions and 0.2 per cent of Canada’s emissions. Shell noted
that GHG emissions and climate change were global issues and should be considered in that
context. Shell stated that the Project’s contribution to global GHG emissions at 0.004 per cent
was insignificant.
[293] OSEC did not agree with Shell’s view and noted that assessing the Project’s impact on
climate change on a global scale meant that the effects would virtually never be found to be
significant.
[294] OSEC stated that Shell had not met its GHG reduction commitments established for
MRM and JPM to reduce GHG emissions from the projects to a level less than that associated
with imported oil. Greenpeace was of the view that Shell had made previous commitments to
reduce GHG emissions from its oil sands projects but had since abandoned those commitments.
Shell noted that it had an aspirational goal to reduce GHG emissions from its oil sands projects
to the same level as the equivalent basket of imported crude into North America.
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[295] OSEC noted that Alberta and Canada were failing to meet their climate change
commitments. It said that immediate action was required to limit global impacts of climate
change. OSEC stated that the Project would further contribute to the failure of Canada to meet its
emissions reductions target of 17 per cent below 2005 levels by the year 2020. The Project
would also contribute to the failure to meet Alberta’s goal of reducing GHG emissions by 50
megatonnes by 2020. Greenpeace stated that Canada was not on track to meet its GHG
reductions targets.
[296] EC noted that the Government of Canada was still committed to meeting its target of
reducing GHG emissions by 17 per cent below 2005 levels by 2020. EC acknowledged that there
was still work to be done by the federal government. EC indicated that it intends to draft
regulations in 2013 to address GHG emissions, including those from the oil sands sector.
[297] OSEC stated that by 2020 the oil sands industry would represent approximately 14 and
36 per cent, respectively, of Canada’s and Alberta's climate change emissions. OSEC said that
the policy tools in place to achieve reduction in GHG emissions were not strong enough. OSEC
pointed to the need for substantial reductions across all economic subsectors, including the oil
sands. Greenpeace concluded that in the absence of effective federal policies and measures, no
new long-lived sources of GHG should be approved.
Analysis and Findings
[298] The Panel believes that the Project’s GHG emissions at 1.2 Mt CO2e will increase GHG
emissions from the oil sands industry and make it more difficult for Alberta and Canada to meet
their GHG reduction targets. The Panel notes that Shell stated that it would comply with the
requirements of Alberta’s Specified Gas Emitters Regulation, which is the only existing
regulatory requirement for GHG emissions. The Panel also notes that Shell committed to
complying with any future Federal regulatory requirements. To this end, the Panel expects Shell
to incorporate sufficient flexibility into the project design to facilitate retrofitting of any controls
needed to fully comply with future climate change regulations.
[299] The Panel notes that Shell’s goal is to reduce GHG emissions from its oil sands projects
to the same level as the equivalent basket of imported crude into North America. The Panel
believes that GHG emissions is an important concern for a number of stakeholders and expects
Shell to follow through on its commitments.
[300] For the reasons expressed above, the Panel is of the view that the Project meets existing
GHG regulatory requirements and is not likely to result in significant adverse cumulative
environmental effects from GHG emissions provided that the mitigation measures proposed are
completed and implemented.
CLIMATE CHANGE CONSIDERATIONS IN THE ENVIRONMENTAL ASSESSMENT
Evidence
[301] Shell considered climate change scenarios in its assessment of environmental effects
using the Global Climate Model from 2001 (Intergovernmental Panel on Climate Change 3rd
Assessment [IPCC3]). Shell noted that annual forecast changes in temperature relative to the
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1961 to 1990 baseline for each of the 26 model and climate forecast scenario combinations range
from 1.6 to 6.3 degrees Celsius. Shell noted that annual forecast changes in precipitation range
from -5.4 to 18.4 per cent. Shell stated that this rise in average annual temperatures and a change
in the upper and lower bounds of precipitation predicted by the climate change model may have
an effect on aquatic resources due to increased winter flows and decreased annual mean and peak
flows in surface water.
[302] In its assessment, Shell analyzed stream flow variables to determine linkages with trends
in climate and predict potential resulting effects. Shell reported a decreasing trend in the
Athabasca River flow records at various stations over the recorded time period for the river
(1958 to 2006) and observed similar trends for the Bow River at Banff and Calgary stations over
the same recorded period. However, the Bow River had a longer period of record available (1911
to 2006), and the resulting flow decreases during this period were less exaggerated compared
with the shorter flow record series for the Athabasca River. Shell believed that the 40 to 50 year
period of records for the Athabasca River may not properly reflect the long-term trend due to
climate variability, climate change, or both. Shell cited a study that indicated that climate cycles
can rotate in periods of 45 to 60 years. Shell noted that trend analyses of recorded periods less
than 60 years should be completed with caution. As a result, Shell determined that an
extrapolated flow model based on the Bow River would be more appropriate for analysing flow
in the Athabasca River than the shorter flow model of recorded data for the Athabasca River.
[303] Shell presented evidence from the Journal of Hydrology 7 that states, “As shown from the
Bow River discharge data, the estimated rates of trend become stable after the record length
reaches 70–80 years. It should be clear that this is not simply a function of more data providing
better statistical results, but it is the length of the data record relative to cycle length that is
critical.” From the same source Shell also quoted, “Given the predominance of climate cycles of
45–60 years observed from instrumental records, trend analyses of time series records of less
than 60 years should be done with caution. The estimated trend from such analyses may have
limited power in providing appropriate future trend estimates.”
[304] Shell explained that 50 years of data was available for the Athabasca River and that it
was necessary to use the longer period of data available from the Bow River to determine the
more appropriate hydrogeological trend. As Shell indicated, its explanation is consistent with
NRCan’s article, Assessing Climate Change Impacts on Water Availability for Oil Sands
Development in the Athabasca River Basin. In this article NRCan states, “The river [Athabasca
River] discharge rates naturally fluctuate on decadal and century scale cycles, but since most
records along the Athabasca River only date back 50 years, some cycles may be missed and
therefore provide an inaccurate estimate of trends. Scientists have built models by integrating
multiple observed cycles in river flow discharge.” Shell also indicated that its decision to use a
longer period of data is consistent with NRCan rationale that a trend extrapolated over part of a
cycle makes the declining trend appear more severe than if the trend was extrapolated over the
full cycle.
[305] Based on this methodology, Shell stated that the mean annual flows of the Athabasca
River were predicted to decrease by about 7.8 per cent by the year 2050. However, using the
shortened flow period for the Athabasca River, Shell stated that the resulting decrease in mean
7
Chen, Z., Grasby, S.E., 2009. Impact of decadal and century-scale oscillations on hydroclimate trend analyses.
Journal of Hydrology 365, 122-133.
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annual flow would be about 21.1 per cent. Shell determined that a longer flow period was more
demonstrative of long-term trends and so even though the shorter flow model produced a larger
reduction, it did not think it was representative. Shell stated that the decrease as predicted in the
longer flow model in mean annual flows (a 7.8 per cent decrease) would not significantly change
the Project or the predictions developed in the EIA. Shell considered these flow predictions to be
conservative because model simulation and its analysis of regional and local data indicated an
increasing trend. With respect to the seven-day low flow predictions, Shell determined that the
seven-day low flow would not change appreciably using the longer-term flow model as opposed
to the decreasing trend that is observed from the shorter period of record.
[306] Dr. Carver, on behalf of the ACFN, stated that Shell’s methodology, data, and
interpretations were incorrect and misleading. Furthermore, he stated that the conclusions were
not supported by the material presented. Dr. Carver also stated that using the Bow River flow
record to project the Athabasca River flow record was inappropriate because using the more
recent period may be a more accurate representation of anthropogenic climate change. He noted
that while Shell reasoned that past behaviour was a good predictor of future behaviour, this may
not be the case with human-induced climate change.
[307] Dr. Carver said that to other methodological flaws include the use of subjective
comparisons in discussions of modelling and non-conservative assumptions. He stated that a
systematic chain of subjective considerations led Shell to conclude that critical minimum winter
flow in the Athabasca River below Fort McMurray will not be affected by future climate change.
He also said that Shell’s conclusions were invalid due to the nested and systemic subjectivity and
unscientific methodologies that Shell used.
[308] Dr. Carver stated that climate change introduces uncertainties into the EIA that, if not
addressed appropriately, undermine the ability of Shell to deliver the outcomes projected in its
EIA. Dr. Carver stated that an objective assessment of potential declines in future flow in the
Athabasca River was key for evaluating total water withdrawals under Lower Athabasca River
Water Management Framework restrictions for multiple projects in the oil sands region. He
asserted that errors in this work could have far-reaching implications for mine viability in future
decades. He explained that the low-flow periods of the river may be exacerbated by additional
factors expected to drive these hydrograph metrics lower through time. These factors included
that some experts expect climate change to result in deeper declines in the hydrograph as
analyzed by the Phase 2 Framework Committee, that oil sands water withdrawals were
increasing, and that the regulator’s management framework permits substantial withdrawals.
These combined pressures threaten the magnitude of Athabasca River flows and thus threaten
water value and river function. He also noted that using a longer flow record may have
significant ramifications in the EIA for the CEA of the Athabasca River and the PAD.
[309] EC noted that by not using the potential worst-case climate change scenario, Aboriginal
concerns related to wetlands, river and stream flows, water quality, and the use of aquatic
resources may also be not affected as Shell predicted. EC stated that without the consistent use of
a representative set of seasonal precipitation and temperature assumptions, it was difficult to
assess the potential long-term significance of aquatic effects that were driven by precipitation
and temperature.
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[310] ACFN noted that a more recently completed EIA in the oil sands region for the Teck
Frontier project evaluated the effects of climate change using the updated climate model from
2007 (Intergovernmental Panel on Climate Change 4th assessment [IPCC4]). ACFN pointed out
that the more recent model for Teck Frontier predicted the opposite effect on flows in the
Athabasca River than Shell’s model. ACFN questioned how Shell could state that the results of
the EIA would remain unchanged if the newer model had been used.
[311] Shell responded that no single approach to this issue would satisfy all reviewers, and
believed that the methods used appropriately characterized the impacts of climate change. Shell
noted that the Teck Frontier EIA predicted that flows in the Athabasca River would increase
significantly by 2050. Shell stated that because the EIA for the Project predicted a decline in
flow, it should be considered sufficiently conservative.
[312] EC noted that Shell’s climate change model and assumptions reduced the range and
magnitude of predicted environmental effects while increasing the uncertainty of the effects
predictions and the determination of their significance. It noted that Shell used inconsistent
methodologies between tributary and main stem regions of the Athabasca River and also used a
restricted range of climate model precipitation outputs based on annual values (-3.9 to +4.6 per
cent) that likely underestimated potential climate change impacts in the region. EC stated that
predicted biological effects may not be as stated in the EIA because Shell's sensitivity analysis
indicated that a larger output, such as a 10 per cent change in precipitation, could trigger a
significant change in stream flow. EC concluded, in particular, that concentrations of
contaminants in the rivers could be higher than Shell predicted from its modelling and as a result,
predictions on impacts to fish could be underestimated.
[313] Shell submitted that it had the ability to adaptively manage if climate change effects
turned out to be different than it predicted through the Phase 2 – Lower Athabasca River Water
Management Framework for the Athabasca River and had other means of water storage.
Analysis and Findings
[314] The Panel acknowledges that there is a high level of uncertainty associated with
predicting the effects of climate change. The Panel finds that the climate change model used by
Shell may not be the most conservative model; however, the Panel is satisfied with Shell’s
approach given that it was the best model available when Shell was preparing its EIA. The Panel
notes that since that time, however, there have been improvements in climate change modelling
that Shell should use when following up and monitoring to ensure that its predictions are
accurate.
[315] The Panel agrees with NRCan’s rationale that using full cycles of data provides better
accuracy when estimating trends in flow rates. The Panel agrees with Shell’s methodology for
predicting trends in Athabasca River discharge rates. The Panel considers that Shell’s
methodology is consistent with the work completed by others to determine impacts of climate
change on stream flows, and it is satisfied with this approach.
[316] Based on the above, the Panel believes that Shell’s incorporation of climate change into
its prediction of environmental effects of the Project was reasonable.
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[317] It appears to the Panel that predictions of decreased flow would be more problematic for
the environment than periods of increased flow, because a low flow that is lower than predicted
could affect fish and fish habitat, human health through increased water contamination,
navigation and use of land, and resources for traditional purposes. Therefore, the Panel believes
that Shell’s determination relating to the seven-day low flow is sufficiently conservative to
predict significance of environmental effects.
[318] With respect to Shell’s assessment of annual flow, the Panel understands that the
decrease in flows predicted by climate change models is not a result of the Project; however, the
Project and others in the oil sands region may act cumulatively with climate change to
exacerbate the effects on the Athabasca River and other areas of the environment. If the
predictions in the EIA based on climate change carry a degree of uncertainty and the predictions
based on project effects are also uncertain, Shell’s predictions of the Project’s effects on the
environment may be unreliable. The Panel accepts that adaptive management is an appropriate
response for dealing with uncertainty and recommends that the Governments of Canada and
Alberta ensure that Shell conducts rigorous follow-up and monitoring on environmental effects
of the Project related to climate change predictions, and manages accordingly should those
predictions be incorrect. Specifically, the Panel recommends that the Government of Canada
ensure that Shell conducts this follow-up and monitoring in relation to CEAA, 2012 section 5
effects. The Panel believes that managing environmental effects of climate change on the Project
is important.
CHANGE TO THE PROJECT CAUSED BY THE ENVIRONMENT
Evidence
[319] Shell evaluated several environmental events that could have an effect on the Project.
These events included climate change, forest fires, extreme weather, and seismic activities. For a
discussion on climate change as it relates to environmental effects that may be compounded with
project effects, see the Climate Change Considerations in the Environmental Assessment section.
See the Greenhouse Gas Emissions section for a discussion on the Project’s contribution to
climate change.
[320] Shell stated that it designed the Project in such a way that it would be protected from
extreme weather such as flooding, drought, forest fires and seismic activities. Shell proposed
mitigation for floods, including locating facilities outside of flood risk limits, designing the
closure landscape to provide flood plains to manage flood events, providing clean-waterhandling facilities and sedimentation ponds, constructing perimeter dikes, and implementing
erosion measures along pit walls and watercourse banks. Shell stated that it had designed the
Project to handle less available water from the Athabasca River. Shell proposed mitigation for
forest fires, including developing fire prevention and response strategies, identifying ignition
sources, and conducting fire prevention training. Shell noted that the occurrence of seismic
activity in the area is believed to be low, but that the design criteria account for the possibility of
seismic activity over the lifetime of the Project.
[321] Shell used the Global Climate Model from 2001 (IPCC3) to evaluate the effects of
climate change during the lifetime of the Project. Shell stated that even though a more recent
model had been developed (IPCC4), it completed the EIA in 2007 when the output from that
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model was not available. Shell stated that even though the newer model was refined to reflect
current trends, the results of the EIA would not have changed if it had used IPCC4.
[322] Shell stated that a likely climate change scenario resulting from this model was a rise in
average annual temperatures and a change in the upper and lower bounds of precipitation. Shell
determined that it was unlikely that a change in climate, as described by the model, would have a
significant impact on the Project. It stated that potential effects would be minor but may include
an increase in winter temperatures, which could slow operations slightly, an increase in
precipitation, which could affect mine stability, and a reduction in water availability, which
could affect mine operation.
[323] Shell proposed better road construction and more drainage as mitigation measures. Shell
also stated that it designed the Project to handle low water availability through the capture of
groundwater and surface runoff for reuse in the extraction process. Shell also committed to
comply with the Water Management Framework for the Lower Athabasca River Phase 1 to
further reduce withdrawals during low-flow conditions.
Analysis and Findings
[324] The Panel determined that Shell’s assessment of the effects of floods, droughts, and
forest fires on the Project is sufficient and that the design and mitigation measures proposed are
reasonable to minimize potential effects. The Panel recommends that the Governments of
Canada and Alberta ensure that Shell monitors environmental changes that result from climate
change and undertakes adaptive management, as required, to respond to any unanticipated
environmental effects that may affect the Project.
WATER WITHDRAWAL FROM THE ATHABASCA RIVER
Evidence
[325] Shell proposed four objectives for its Project water management plan:
•
ensure sufficient water was available to meet Project requirements;
•
minimize the Project’s effects on aquatic resources;
•
minimize consumption of fresh water; and
•
maximize recycle and reuse of process affected water (PAW).
[326] The site water management strategies that Shell presented to achieve these objectives
include:
•
effective separation of clean water and PAW streams;
•
recycling of PAW;
•
a 30-day raw water storage to support operations during low-flow conditions; and
•
capture of groundwater and site runoff for use in the extraction process to reduce river
withdrawals.
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[327] Shell indicated that the primary source of make-up water for the Project will be the
Athabasca River. Supplemental process water will be supplied by runoff and seepage within the
closed circuit system, the Basal McMurray Aquifer, and the PCA.
[328] Shell requested, under the Water Act, an allocation of 18 million cubic metres (Mm3) of
water per year from the Athabasca River for the Project, approximately 0.09 per cent of its
average annual flow. Shell noted that the cumulative Lower Athabasca River water withdrawal
for Phase 1 and the Project was 53.3 Mm3 per year (Mm3/yr) or approximately 0.27 per cent of
the annual river flow. The Project would use the existing MRM intake structure. Shell also
applied under the Water Act for approval to divert 24.5 Mm3/yr of site runoff and 26 Mm3/yr of
groundwater.
[329] Shell stated that the reduction in mean seasonal Lower Athabasca River flows in reach 4
(from the Athabasca River gauge below Fort McMurray to the gauge at the mouth of the
Steepbank River) for the application case compared to the preindustrial case (PIC) due to water
withdrawals would range from 1.9 per cent in summer to 12.9 per cent in winter. Shell noted that
the water reduction in the mean seasonal Lower Athabasca River flows for the application case
compared with base case due to water withdrawals would range from 0.04 per cent in summer to
0.3 per cent in winter. Shell predicted that changes in water level at station S24 (downstream of
Pierre River) would be less than 5 centimetres (cm) for the application case (less than 1 per cent
of the maximum flow depth), with the Project accounting for 0.1 cm. Shell concluded that the
predicted changes in the Lower Athabasca River flows and levels would have no perceptible
effect on the river or the PAD.
[330] Shell committed to following the limits prescribed by the Water Management Framework
for the Lower Athabasca River Phase 1 to ensure that water withdrawals would be reduced as
necessary during low-flow conditions. Shell committed to reducing water withdrawals across all
of Shell’s mineable oil sands projects to 0.2 m3 per second (m3/s) whenever the total flows in the
river reach 87 m3/s or less. Shell was confident that its adherence to the Water Management
Framework for the Lower Athabasca River Phase 1 would maintain the integrity of the Lower
Athabasca River, including the PAD. Shell noted that the Water Management Framework for the
Lower Athabasca River Phase 1 would be adaptive and, as such, informed by ongoing scientific
research and modified as necessary to protect the river. Shell committed to complying with
Phase 2 and subsequent updates of the Water Management Framework for the Lower Athabasca
River.
[331] DFO stated that it and ESRD were in the final stages of developing Phase 2 of the Water
Management Framework for the Lower Athabasca River to address cumulative water
withdrawals from the Lower Athabasca River. DFO noted that within the next few months, DFO
and ESRD intended to consult with all First Nations that might be affected, Métis groups,
companies that participated in the Phase 2 Framework Committee (P2FC) 8 report development,
and other nongovernment organizations. DFO indicated that Phase 1 would remain in effect until
Phase 2 is formally released. DFO stated that the Project would require water withdrawals from
the Lower Athabasca River, which would affect flows in the river. DFO indicated that conditions
of authorization issued under paragraph 35(2)(b) of the Fisheries Act for the Project will require
8
The Phase 2 Framework Committee (P2FC) was a multi-stakeholder committee established in 2008 to develop
recommendations for a Phase 2 water management framework that will prescribe when, and how much, water can
be withdrawn from the Lower Athabasca River for cumulative oil sands mining water use.
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Shell to comply with the Water Management Framework for the Lower Athabasca River Phase
1.
[332] DFO acknowledged that the P2FC did not achieve consensus on a final set of water
management rules due primarily to disagreement about issues associated with the EBF
exemption specifications. DFO and Alberta took ACFN and other Aboriginal groups’ reports
into consideration when drafting the Phase 2 of the Water Management Framework for the
Lower Athabasca River. DFO indicated that the Aboriginal base flow (ABF) figures presented
were not indicative of the overall nature of the river’s historic levels and that other factors (e.g.,
Bennett Dam, dredging) had affected Athabasca River navigation over time. DFO recommended
that Shell continue its support for development of a monitoring program that focuses on CEA of
water withdrawals.
[333] EC stated that the hydrograph of the Peace River has flattened due to the Bennett Dam.
EC noted that the dam was constructed in the late 1960s, and in the mid-1970s there was a
climatic or hydroclimatic shift towards drier conditions and lower snowpacks that has definitely
contributed to some of the lower water levels in the PAD.
[334] MNA stated that when the Bennett Dam started operating, the flooding stopped in the
PAD.
[335] ACFN stated that cumulative effects on the PAD were influenced primarily by historic
changes in flow of the Peace River caused by the Bennett Dam. ACFN's position was that the
Bennett Dam had changed water flows to the PAD, which forced members to change their
patterns of traditional land use.
[336] DFO stated that it supported the EBF of 87 m3/s and considered that the work done to
propose this EBF and the discussions that took place were substantial. DFO mentioned that if
flows in the Athabasca River were at or below 87 m3/s, Phase 2 would still allow water
withdrawals of up to 4.4 m3/s, comprised of 2 m3/s for Syncrude, 2 m3/s for Suncor, 0.2 m3/s for
Shell Muskeg River, and 0.2 m3/s for Canadian Natural Resources Limited (CNRL). DFO stated
that 0.2 m3/s to provide freeze protection of the facilities seemed reasonable.
[337] ACFN and OSEC expressed concerns that neither the Water Management Framework for
the Lower Athabasca River Phase 1 nor the P2FC recommendations for Phase 2 adequately
considered the EBF.
[338] OSEC stated that Alberta and Canada have not met previous panel recommendations to
implement a Phase 2 of the Water Management Framework for the Lower Athabasca River that
includes an EBF beyond which further water withdrawals would be prohibited. In the absence of
an EBF, OSEC recommended all water withdrawals be prohibited during periods of flows at or
below 87 m3/s to ensure that the Project does not contribute to damage to the river during lowflow periods.
[339] ACFN stated that nonconsensus P2FC report recommendations would be more protective
of river flows than the Water Management Framework for the Lower Athabasca River Phase 1
rules currently in place. Phase 2 of the Water Management Framework for the Lower Athabasca
River Phase 1 did not include the ABF. ACFN recommended that Alberta and Canada take the
following steps immediately to prevent further harm:
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•
establish a temporary precautionary (cut-off) flow of 100 m3/s until a science-based EBF can
be determined. When the flow drops below 100 m3/s, allow minimal withdrawals (a total of
less than 1 m3/s) to prevent freezing; and
•
establish a temporary precautionary ABF at a level of 1600 m3/s, and a temporary
precautionary Aboriginal extreme flow (AEF) at a level of 400 m3/s, during river travel
months.
[340] Fort McKay noted that Alberta and Canada have not established an EBF for the Lower
Athabasca River, and an increase in water withdrawals would cause the river to be at risk.
Including the Project, the total water allocation from the Lower Athabasca River would be about
4 per cent of the river’s mean annual flow. Fort McKay stated that there was no cut-off flow in
the Water Management Framework for the Lower Athabasca River Phase 1 and that the date
when a complete cut-off flow may be implemented continues to be pushed further into the future.
[341] OSEC stated that the Oil Sands Developer Group agreed that operators could reallocate
unused licence allocations within the group for the 2011–2012 winter. OSEC indicated that this
could enable withdrawals greater than what would be permitted by the Water Management
Framework for the Lower Athabasca River Phase 1. OSEC recommended conditioning any
approvals to limit Shell's water withdrawal in the low-flow periods to 0.2 m3/s for Phase 1 and
the Project, and doing so without allowing Shell to purchase additional withdrawals from other
operators. OSEC further recommended that Shell be required to retrofit its water diversion
infrastructure so that withdrawals during low-flow periods could reach zero in the future.
[342] OSEC noted that the 30-day water storage proposed by Shell may not be sufficient to
meet the Project's requirements during low-flow conditions in the Lower Athabasca River.
OSEC stated that the proposed volume of stored water would not allow both Phase 1 and the
Project to maintain regular operations, and would not be consistent with newer projects, such as
the Total Joslyn mine, that have responsibly planned for 90 days of water storage and would be
able to cease or limit withdrawals during low-flow periods.
[343] Shell stated that its current water management plan for the Project includes 30 days of
river water storage onsite, although Shell would be able to draw from additional onsite water
sources in the event of prolonged periods of low flow of the Athabasca River. Shell indicated
that for the Project, it intends to reduce the amount of water withdrawal from the river by
capturing onsite groundwater and surface water runoff, and through freeboard in its existing
tailings facilities and ponds. Shell stated that potential options to minimize the footprint of raw
water storage and the use of river water include treating process water onsite. Shell reaffirmed its
commitment to comply with the phase 2 of the Water Management Framework for the Lower
Athabasca River Phase 1, and stated that it would adapt to what this framework states about
onsite water storage requirements.
[344] ACFN stated that the Project will affect regional hydrology. Water withdrawals would
reduce Lower Athabasca River flows, which are already too low to support the exercise of treaty
rights. ACFN claimed that Shell addressed only direct withdrawals but not indirect withdrawals
through groundwater changes or tributary withdrawals. ACFN stated that these incremental
water withdrawals would jeopardize the viability of the Lower Athabasca River downstream
navigation.
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[345] OSEC noted that to date, assessment reports have indicated that water monitoring in the
Athabasca region was inadequate. OSEC indicated it would be inappropriate to draw conclusions
about new projects or impacts based on RAMP data.
[346] Shell stated that for the surface water hydrology assessment it used data from RAMP, the
Water Survey Division of EC and Alberta Sustainable Resource Development, the Water Rights
Branch of Alberta Environment, and local monitoring stations installed in the LSA as part of the
environmental setting studies. Shell stated it has supported monitoring of surface water quantity
and quality under RAMP and would support the Joint Canada-Alberta Implementation Plan for
Oil Sands Monitoring.
[347] EC stated that following the announcement of the Joint Canada-Alberta Implementation
Plan for Oil Sands Monitoring, Canada and Alberta have made good progress in implementing
enhanced oil sands monitoring. EC noted that the two governments have also made progress
toward putting in place the governance arrangements needed to jointly deliver this program and
manage the transition to a government-run monitoring plan. EC added that the two governments
would be managing the transition from current arrangements to a government-led plan. EC stated
that scientific reviews have been critical of the RAMP’s program design, implementation, and
transparency of results. EC concluded that the two governments agreed that RAMP would be
wound down in due course and its relevant activities delivered under the government-run
monitoring plan. The Joint Canada-Alberta Implementation Plan for Oil Sands Monitoring will
monitor both surface water quantity and quality.
[348] Shell stated that its CEAs based on the current Water Management Framework for the
Lower Athabasca River Phase 1 indicated that the predicted changes in water level for the Lower
Athabasca River through the application and PDC would be insignificant. Shell noted that if and
when Phase 2 of the Water Management Framework for the Lower Athabasca River comes into
effect, there would be further restrictions on water withdrawal from the Lower Athabasca River,
reducing cumulative effects on hydrology.
[349] Shell stated in its 2010 navigability assessment that TC had identified the Muskeg and
Athabasca Rivers as the only navigable watercourses in the Project area. Shell indicated that
flow changes in the Lower Athabasca River would be affected mainly by the withdrawals for the
Project rather than drainage area changes due to an increase in the closed-circuit area during
mine development. Shell concluded that surface water withdrawals from the Athabasca River
would result in negligible impacts on navigation. TC stated that the impacts of the Project on
navigation in the Lower Athabasca River would be negligible.
[350] ACFN said that low flows would undermine the health of the PAD and its ability to
sustain traditional resources, adversely affecting ACFN's ability to exercise its treaty and
Aboriginal rights in the PAD. ACFN stated that Shell’s CEA excluded the PAD. ACFN claimed
that declines in Lower Athabasca River mean annual flow would be accelerated by additional
industrial withdrawals that would lead to further declines in Lower Athabasca River flows. This
would in turn lead to reductions in recharge of the PAD.
[351] Shell stated that it assessed project effects on the PAD in its May 2012 updated CEA for
the application case and PDC. Shell concluded that cumulative effects of the Project in
conjunction with existing, approved, and planned developments on water level changes and
flooding in the PAD would be negligible. Since it predicted negligible surface water quantity
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effects in the Lower Athabasca River, Shell concluded that the spatial extent of the aquatics RSA
was appropriate.
[352] Shell stated that in the context of total river flows, the amount of water that Shell is
proposing to withdraw is less than 0.1 per cent of the mean annual flow; and that the predicted
change in the Athabasca River water level would be less than one millimetre, a change that
would have no discernible effect on the Athabasca River or the PAD.
[353] Shell stated that cumulative effects on the PAD were influenced primarily by historic
changes in Peace River flows caused by the Bennett Dam. Shell agreed with TC’s observation
that the Lower Athabasca River was historically dredged and that the river was now returning to
its pre-1940s levels, likely explaining the increase in the occurrence of sandbars.
Analysis and Findings
[354] The Panel recognizes that Shell committed to:
•
meet the conditions set out under the Water Management Framework for the Lower
Athabasca River Phase 1, and under the updated Phase 2 when implemented;
•
participate in oil sands mining water management agreements to ensure that industry meets
the requirements of the Water Management Framework for the Lower Athabasca River
Phase 1 as amended;
•
reduce water withdrawals to 0.2 m3/s whenever the total flows in the river reach 87 m3/s or
less; and
•
support cumulative effects initiatives from advisory bodies tasked with overseeing
cumulative effects monitoring.
[355] The Panel acknowledges that DFO and ESRD are in the final stages of developing Phase
2 of the Water Management Framework for the Lower Athabasca River. The Panel understands
that the federal and provincial governments will conduct a consultation process to determine
acceptability of Phase 2 that will include all Aboriginal groups, industry, and other nongovernment organizations.
[356] The Panel agrees with the concept of a precautionary cut-off to protect the river and
understands that Phase 2 is likely to include an EBF of 87 m3/s that includes industry needs
during low-flow conditions. The Panel agrees that the withdrawal limit of 0.2 m3/s for the Shell
MRM and JPM when flows are at 87 m3/s should be maintained.
[357] The Panel recommends that the Governments of Canada and Alberta consider the
precautionary cut-off flow approach to address impacts of water withdrawals during extreme
low-flow conditions, and potential impacts on navigation. The Panel recommends that DFO,
ESRD, the oil sands industry, and all other involved stakeholders, dedicate the necessary
resources to ensure that Phase 2 of the Water Management Framework for the Lower Athabasca
River is completed and implemented in a comprehensive manner by January 2016 as
recommended in the P2FC report.
[358] The Panel believes that Shell’s proposed 30-day onsite river water storage is appropriate
considering that Shell has committed to complying with the Water Management Framework for
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the Lower Athabasca River as amended, that Shell has additional onsite water sources to
continue operating when low-flow restrictions on water withdrawal are in effect, and that Shell,
if required to do so, would treat process water for re-use in its extraction process.
[359] The Panel believes that the data used by Shell was adequate based on what was available,
including RAMP data. The Panel recognizes that RAMP will be wound down in due course and
its monitoring activities will be assumed by an agency under government management. The
Panel also recognizes that the Joint Canada-Alberta Implementation Plan for Oil Sands
Monitoring proposes a more comprehensive monitoring program for both surface water quantity
and quality that will address concerns over deficiencies in current monitoring activities. The
Panel acknowledges that the Government of Alberta will establish a new arm’s length
environmental monitoring agency. While this takes place, the environmental monitoring of
surface water quantity and quality in the oil sands region will continue to be led by the joint
federal-provincial program.
[360] The Panel acknowledges observations from EC and DFO that flows and navigation in the
PAD are also affected by Lower Athabasca River dredging cessation, the Bennett Dam, and
changes in precipitation. The Panel recognizes TC’s conclusion that the impacts of the Project on
navigation in the Lower Athabasca River would be negligible. The Panel also agrees with Shell’s
prediction that there would be no impacts on navigation in the Muskeg and Athabasca Rivers or
the PAD from project-related water withdrawals.
[361] The Panel concludes that with the implementation of Shell’s proposed mitigation
measures and commitments, the work being developed on the Joint Canada-Alberta
Implementation Plan for Oil Sands Monitoring to address surface water quantity and quality, and
adherence to the Panel’s expectations and recommendations, it is unlikely that significant project
and cumulative environmental effects on water flows and levels in the Athabasca River or the
PAD would result from the Project’s use of Lower Athabasca River water.
POTENTIAL EFFECTS ON GROUNDWATER FROM PROCESS-AFFECTED WATER
Evidence
[362] Shell stated that it will operate a closed-loop water handling system in order to prevent
groundwater impacts from PAW during operations. It said that it will fully contain any water that
has the potential to become affected by process-related operations (including seepage into mine
pits) and will control it on site. Therefore, Shell concluded that there is very limited potential for
PAW to impact groundwater resources during operations.
[363] Shell stated that it will construct the ETDA on the landscape without including a lowpermeability lining on the bottom and that natural muskeg and clay till underlying the ETDA
area will help to reduce downward flow rates. However, during operations, PAW seepage will
occur as a result of precipitation flowing through the various materials deposited in the ETDA.
Shell will mitigate this seepage by installing a system of perimeter seepage collection ditches,
and managing the elevation of those ditches will allow Shell to control the hydraulic gradient and
direct seepage into those collection ditches. Seepage collected in the ditches will be returned to
the ETDA. Shell said that seepage may impact surficial deposits (including the PCA, which
underlies portions of the ETDA) and potentially the Basal McMurray Aquifer, but that vertical
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seepage below surficial deposits to the Basal McMurray Aquifer will be limited due to lowpermeability oil sands material underneath the ETDA, which will preferentially direct seepage
laterally.
[364] Shell stated that upon closure of the ETDA, it will cap it with low-permeability materials
reducing the rate of water infiltration into, and therefore seepage out of, the ETDA, and will
direct seepage toward backfilled mine pits and ultimately the EPL via the closure landscape.
Shell did not anticipate lateral seepage and release to surface water bodies because mining will
occur on three sides of the ETDA, and it will backfill those pits when mining ceases.
[365] Shell stated that it will backfill mine pits with a variety of materials, including tailings.
There is potential for water infiltrating these materials to become degraded in quality and then be
considered PAW. To mitigate and limit the seepage of this potentially impacted water into
adjacent groundwater aquifers, Shell indicated that it will design the closure landscape in such a
way that the water in the backfilled mine pits will migrate toward constructed wetlands and the
EPL as groundwater discharge areas. Once potentially impacted groundwater enters the EPL, it
will be subjected to the same mitigating processes as all water in the lake.
[366] Shell indicated that it will place low-permeability material adjacent to the PCA and other
permeable sediments exposed in the pit walls prior to backfilling. This low-permeability material
will restrict water from flowing from the backfilled mine pits into the PCA and other permeable
sediments; instead, the water will preferentially flow toward constructed wetlands and the EPL,
which will be the groundwater discharge areas.
[367] Shell stated that it completed conservative groundwater modelling to evaluate the
potential for both backfill seepage and ETDA seepage and its possible extent. It also modelled
the effectiveness of proposed mitigation options. Based on the available data on which the
models were built, Shell considered that its proposed mitigation techniques would be effective at
reducing potential seepage impacts to acceptable levels.
[368] NRCan was concerned that the groundwater model data inputs included limited sitespecific data. Shell indicated that it will refine its conservative groundwater models as more data
becomes available, which will validate and increase the confidence in the model outputs.
[369] Shell said that it will monitor actual groundwater conditions during operations, and EPEA
approvals will require groundwater quality monitoring and reporting for potential impacts on
groundwater from the backfilled pits and the ETDA.
[370] Shell committed to monitor for lateral seepage of PAW from the ETDA and stated that it
will develop a closed-circuit seepage interception system to fully intercept seepage through the
Quaternary deposits. Shell stated that it will install a system of wells to monitor and collect water
that infiltrates the subsurface from the ETDA into the PCA. Shell stated that it has designed a
conceptual groundwater monitoring program, and it intends to meet with regulators to develop a
rigorous monitoring program if the Project is approved.
Analysis and Findings
[371] The Panel acknowledges that there is a risk of PAW reducing the quality of groundwater
surrounding the proposed Project. Shell has presented several mitigation strategies that it said
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will effectively mitigate seepage of PAW into the environment during operations and the postclosure period. The Panel agrees that the use of a properly designed and managed closed-loop
water handling system will largely mitigate the risk of PAW-related groundwater impacts during
mining operations. The Panel believes that the proposed ETDA seepage mitigation and
management system will adequately address potential PAW impacts on surficial deposits from
this structure.
[372] EPEA requires approvals for industrial facilities, including requirements for monitoring
and reporting of groundwater conditions. Such requirements will exist for the ETDA, backfilled
pits, and other operational areas of the Project. Shell must fully comply with all regulatory
requirements in this regard and work with the regulators to develop robust monitoring systems
and programs.
[373] Shell has completed groundwater modelling to understand the potential impairment to
groundwater quality and the likely flow directions that groundwater would travel in the
subsurface. The Panel finds that although Shell had limited site-specific data available to it for
construction of its models, it made adequate use of available data and used appropriate
professional judgment and scientific literature data in lieu of abundant site-specific data. Regular
updating of the models with field data will allow for confirmation of the simulated results and
verification of predictions of the current models. The Panel expects Shell to regularly update the
groundwater models when field data is available and to inform the AER and stakeholders of any
significant changes in model predictions resulting from incorporation of site-specific field data.
[374] The Panel recognizes that Shell is obligated to follow all requirements to report
impairment of groundwater quantity or quality to the appropriate regulator. Shell should strongly
consider developing a notification process to inform potentially affected stakeholders if such
situations arise during operation or the post-closure period of the proposed project.
[375] The Panel requires Shell to place low-permeability material against all water-bearing
permeable zones exposed in the pits (including the PCA) to effectively reduce the potential for
PAW to be released out of the backfill into those permeable zones. Shell is expected to achieve a
permeability equal to or lower than that of the low-permeability materials in the mine pit walls
adjacent to the PCA and other exposed water-bearing zones.
[376] On the basis of the evidence, and subject to the condition prescribed above, the Panel
does not believe that the Project will result in significant adverse effects to groundwater quality.
DIVERSION OF THE MUSKEG RIVER
Evidence
[377] In 2007, Shell proposed a mine plan that included diverting the upper reaches of the
Muskeg River through a gravity pipeline to maximize bitumen recovery while minimizing
environmental impacts. In 2011, after four years of consultation with First Nations groups, Shell
developed an alternative plan, the MRDA Mine Plan, to address First Nations’ concerns about
the use of a pipeline to divert the river. The MRDA Mine Plan includes an open channel to divert
about 21 km of the upper reaches of the Muskeg River across the northern portion of the
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development area, allowing Shell to recover about 64 Mm3 of resource. Shell stated that the
diversion channel would sterilize about 4 Mm3 of resource.
[378] Shell considered two other mining scenarios that would leave the Muskeg River intact.
The first alternative contemplated mining on both sides of the river with a 200 m setback. This
alternative would sterilize approximately 27.5 Mm3 of recoverable bitumen at an average grade
of 11.2 per cent bitumen by weight (wt %) and would involve two small satellite pits on the
north side of the river. Shell indicated it did not assess the feasibility of this alternative as it
would require multiple crossings of the Muskeg River and dikes or low permeability berms
adjacent to the Muskeg River pillar, which is restricted by the availability of suitable material.
The second alternative, which contemplated mining on only the south side of the river with a
200 m setback, would sterilize approximately 65.5 Mm3 of recoverable bitumen at an average
grade of 11.4 wt%.
[379] Shell stated that it anticipated that the proposed change to an open channel would allow
navigation on the river through the construction and operation stages. Shell noted that there
would be a very brief transition period when Muskeg River waters revert back from the
temporary boundary channel to the newly established closure channel and pit lakes. Shell stated
that the Muskeg River diversion would be subject to DFO and TC approval.
[380] ACFN stated that diverting the river would permanently affect water flows, water quality,
and fishery resources. These impacts would in turn affect access to traditional lands, reducing the
opportunities to use the resources in the area and significantly affecting spiritual values of the
watershed. ACFN indicated that given the lack of analysis of TLU in Shell’s revised MRDA
Mine Plan, it was not assured that this reassessment would protect its treaty and Aboriginal rights
and/or traditional uses.
[381] ACFN claimed that it was impossible for it to evaluate the impacts of the MRDA Mine
Plan on the Muskeg River because Shell provided few quantitative details about the plan. ACFN
considered that Shell’s MRDA Mine Plan did not actually mitigate its concerns about
disturbance of the Muskeg River. It stated that the river has cultural and spiritual significance to
the ACFN, who have used the Muskeg River basin for millennia and continue to use the river
and to access the lands within the basin. ACFN’s preferred option would be to not divert the
river. ACFN stated that it believed the ore beneath the Muskeg River and its riparian zone should
be sterilized and that full protection of the river be put in place. ACFN stated that should the
Project be approved, it strongly urged the Panel to approve it only on the condition that the
Muskeg River be left in a natural state and not be diverted.
[382] Shell acknowledged that ACFN would prefer that Shell leave the river in place. However,
Shell maintained that the alternative plan did attempt to substantively address the diversion
concerns raised by several stakeholders. Shell claimed its evidence showed that the upper
reaches of the Muskeg River that flow through the Project lease have low use by Aboriginal
groups; therefore, Shell focused on protecting the lower reaches of the river that it considered
more important for Aboriginal uses (e.g., fisheries). Shell noted that the MRDA Mine Plan still
allows for continued access by watercraft along the river, and addresses some of the issues
around losing the spirit of the river. Shell also pointed out that its closest Aboriginal neighbour,
Fort McKay, had not objected to the proposal.
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[383] OSEC stated that Shell’s plan to mine the upper reaches of the Muskeg River and replace
them with a diversion channel would adversely and permanently impact the river and its
watershed. OSEC highlighted that the Project would remove about 21 km of the main stem of the
Muskeg River and would disturb 40 per cent of the river’s watershed. OSEC stated that the
Project would cause unacceptable damage to the Muskeg River basin and that poor modelling
and lack of credible monitoring data downplayed the major impacts on fish, fish habitat, and the
Muskeg River.
[384] OSEC stated that it was concerned that, although the AER and past joint review panels
asked ESRD to develop a management plan for the Muskeg River watershed, the Muskeg River
Interim Management Framework for Water Quantity and Quality only deals with water quantity
in the lower reaches of the river and specifies some water quality parameters.
[385] According to OSEC’s assessment, the Muskeg River Interim Management Framework for
Water Quantity and Quality
•
does not include water quality parameters such as naphthenic acids and PAHs or any
components for aquatic health;
•
includes a water quantity objective to ensure no physical diversion or rerouting of the
mainstem of the Muskeg River while the Muskeg River Interim Management Framework for
Water Quantity and Quality is in place; and
•
indicates that the decision on this application should be guided by the public interest,
considering economic, social, and environmental values.
[386] OSEC also noted that in Muskeg River Interim Management Framework for Water
Quantity and Quality, ESRD left with the AER the responsibility to determine whether mining
the river is in the public interest.
[387] ACFN stated that the Muskeg River Interim Management Framework for Water Quantity
and Quality included an objective that there be no diversion of the Muskeg River mainstem and
was put in place in response to past joint review panel recommendations to manage cumulative
environmental effects and protect the integrity of the river.
[388] Fort McKay stated that ESRD has not completed a comprehensive management plan for
the Muskeg River but instead has set out arbitrary water quantity and quality parameters for it.
According to Fort McKay, the Muskeg River Interim Management Framework for Water
Quantity and Quality is incomplete and puts the Muskeg River at risk. In Fort McKay’s opinion,
if the area under and beside the river must be mined, the MRDA Mine Plan is an acceptable
approach. Fort McKay stated that it did not object to the Project because it has an agreement with
Shell about the site-specific impacts of the Project.
[389] OSEC noted that although Shell said that it can maintain the integrity of the lower
reaches of the river, this is not the same as maintaining the ecological integrity of the watershed.
[390] Shell concluded that integrating operational and closure drainage plans would cause
negligible changes in the mean annual flow levels in Jackpine Creek and to the water levels at
Kearl Lake. Shell predicted that changes to the median, the mean open-water, and the mean icecover lake levels would be less than 0.3 m. Shell predicted that in the application case, compared
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with the PIC, the mean annual discharge in the Muskeg River, at the mouth, would be reduced by
20.5 per cent during mine operations (2050) and would increase by 8.7 per cent at closure (2065
and far future).
[391] DFO noted that the Project would affect fish habitat from two upper reaches of the
Muskeg River that would be diverted, lower reaches of Wapasu Creek, four unnamed water
bodies, several unnamed tributaries of the Muskeg River, and Unnamed Water Body 4 in the
McClelland Lake watershed. Lower reaches of the Muskeg River would also lose fish habitat as
the result of flow alterations associated with the Muskeg River diversion and development of the
mine.
[392] TC stated that impacts on navigation associated with the diversion of the Muskeg River
could be mitigated through the terms and conditions of NWPA approval.
[393] ACFN stated that until Shell provided further details on the closure landscape, Shell
could not conclude that the potential for the proposed reclamation works to affect downstream
Muskeg River navigability is limited. ACFN stated that Shell did not adequately specify the rate
of pit lake filling, the timeframe for when the EPL would feed the Muskeg River, and how long
it would take for the open diversion channel to be closed and reclaimed. ACFN stated that Shell
did not give enough detail on how it would direct the Muskeg River through the northern pit
lakes before returning it to its original channel.
[394] Shell responded that it expected that the transition period during which navigation might
be affected would be only days to weeks.
[395] Shell stated that it was confident that its proposed mitigation measures would maintain
the integrity of the lower productive reaches of the river and that the proposed open-channel
diversion would have either no change or positive impacts on water quality compared with the
original diversion.
[396] Shell indicated that the diversion channel would only erode during the channel
conditioning period with potentially high total suspended solid (TSS) concentrations in excess of
regulatory guidelines. To minimize sediment generation in the channel, Shell proposed
revegetation of the stream banks, overbank areas, and berms, and the use of channel armour
where required.
[397] Shell committed to maintaining water quality in the Muskeg River in compliance with the
Muskeg River Interim Management Framework for Water Quantity and Quality and the
comprehensive framework once it is developed. Shell committed to working with regulators to
finalize a comprehensive framework for the Muskeg River.
[398] Shell stated that it would monitor water quality in the Muskeg River and Kearl Lake
regularly. If Project activities resulted in adverse effects on water quality, Shell would develop
and implement an incident-specific response plan. Shell concluded that the Project would have a
low-to-negligible effect on key water quality constituents in Jackpine Creek, Kearl Lake, and the
Muskeg River.
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Analysis and Findings
[399] The Panel notes that diversion of the Muskeg River has implications for resource
sterilization, water quality, and use of the river, both during and after mining.
[400] The Panel acknowledges that Shell has committed to
•
maintain water quality in the Muskeg River in compliance with the Muskeg River Interim
Management Framework for Water Quantity and Quality,
•
control diversion channel erosion and sediment generation and manage PAW in a closedcircuit system,
•
monitor water quality in the Muskeg River and Kearl Lake and implement specific incidentresponse plans and mitigation measures when required, and
•
work with regulators to finalize a comprehensive management framework for the Muskeg
River watershed.
[401] The Panel acknowledges that Shell’s hydrology CEA concluded that there would be
negligible project-related effects on Muskeg and Athabasca River flows. The Panel finds that the
MRDA Mine Plan provides adequate detail of Shell’s intended approach to resource extraction
under the Muskeg River and of potential project-related effects on navigation.
[402] The Panel recognizes TC’s observation that Shell provided enough information to fulfill
NWPA requirements. The Panel acknowledges TC’s conclusion that the transition period
between the end of temporary channel use and inception of the new navigational area in the
Project’s area would be short term and, according to TC’s discussions with Shell, navigability
would not be compromised. The Panel is of the view that Shell’s proposed MRDA Mine Plan
will allow for adequate navigation through the upper Muskeg River waterway.
[403] The Panel reviewed Shell’s bitumen sterilization estimates for each alternative scenario
related to maintaining the Muskeg River, using the set-back criteria proposed by Shell. For the
alternative of mining on both sides of the river with a 200 m setback, the Panel estimates that
about 23.05 Mm3 of recoverable bitumen at an average grade of 11.0 (wt%) would be sterilized,
or some 84 per cent of Shell’s estimate. The Panel estimates for the alternative of mining on only
the south side of the river with a 200 m setback, about 51.11 Mm3 of recoverable bitumen at an
average grade of 11.3 (wt%) would be sterilized, or some 78 per cent of Shell’s estimate.
Although the Panel believes that Shell has somewhat overstated the amount of bitumen resource
that would be sterilized for each option, the volumes of resource that would be sterilized by
either alternative is still very significant. The Panel believes that if either of these alternatives
were pursued, significant feasibility and closure planning work would be required.
[404] The Panel recognizes there is an inconsistency between the plan to divert the Muskeg
River and the Muskeg River Interim Management Framework for Water Quantity and Quality’s
goal of ensuring “no physical diversion or rerouting of the mainstem of the Muskeg River while
the framework is in place” because it does not include the Project and therefore does not consider
the contribution of the Project in the cumulative effects.
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[405] The Panel recognizes that the relevant provincial agencies were not present at the hearing
to address questions about the lack of Project inclusion in the Muskeg River Interim Management
Framework for Water Quantity and Quality.
[406] The Panel finds that although Shell has provided an acceptable degree of information at
the Project level, the current Muskeg River Interim Management Framework for Water Quantity
and Quality does not fully address cumulative effects on the Muskeg River from oil sands
projects. The Panel finds that the province has not applied the precautionary approach in
considering the Project’s impacts on the Muskeg River.
[407] The Panel has determined that diversion of the Muskeg River is in the public interest. The
Panel notes that Shell predicted that the diversion will have low impact to water quality and
water flows in the lower reaches of the Muskeg River. Furthermore, the upper reaches of the
Muskeg River to be diverted have low fisheries habitat value, there is proposed compensation,
and the evidence indicates there is limited Aboriginal use of the area affected by the diversion.
The Panel finds that there will be significant and unacceptable sterilization of oil sands resources
if the diversion does not occur.
[408] The Panel recognizes that ACFN has significant unresolved concerns about the proposed
diversion of the Muskeg River, including the potential for impacts on its TLU activities, the
exercise of Aboriginal rights, and on the spirit of the river.
[409] The Panel recommends that the Government of Alberta take immediate steps to ensure
the comprehensive Muskeg River Water Management Plan is completed and approved to
coincide with the Joint Canada-Alberta Implementation Plan for Oil Sands Monitoring, which is
expected to be implemented in 2015. This management plan should incorporate the Project.
USE OF END PIT LAKES
Evidence
[410] In 2007, Shell had proposed three EPLs containing MFT as part of its reclamation and
closure plan for Phase 1 and the Project. In 2011, following consultation with Aboriginal groups
and others, Shell proposed to use four EPLs free of MFT for closure management of Phase 1 and
the Project. Shell stated that the elimination of MFT from the EPLs would result in better overall
pit lake water quality. Shell indicated that the long-term flux of PAW from MFT would not be
present in the EPLs, and that it would replace the void resulting from the removal of MFT with
Athabasca River water.
[411] The proposed four lakes would have a total area of about 40 km2. In addition to
Athabasca River water, other sources of water to fill the EPLs include upstream inflows from
Imperial’s EPLs, reclaimed landscape runoff, tailings seepage and consolidation flux, and
precipitation. Shell stated that by 2065, Shell and Imperial would have integrated closure
drainage and that once Imperial’s EPLs meet water quality criteria, it would release water into
Shell’s Northeast Pit Lake.
[412] According to Shell, the elimination of MFT from the EPLs would require two changes
that could affect water quality: the creation and operation of DDA2 to remove PAW from fine
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tailings, and the creation of deeper EPLs, which requires re-evaluation of meromictic and
aeration potential. Shell stated that it would manage the PAW from the DDA within the closedcircuit system according to current mitigation measures and practices. Shell concluded that the
impacts of construction and operation of the DDA on water quality would be negligible. Shell
incorporated the changes to reflect the MFT-free EPLs and ran its pit lake model again. Shell’s
model predicted that the EPLs would be dimictic and that due to replenishment during the annual
or semi-annual vertical mixing of the water column, dissolved oxygen (DO) concentrations
would be above the aquatic life chronic guideline and would be sufficient for aerobic degradation
of organic constituents.
[413] NRCan noted that Shell would capture all MFT as NST to form a dry deposit. NRCan
estimated that the centrifugation of MFT would produce about 16 Mm3 of saline and toxic PAW
at the end of mine life. NRCan noted that Shell would not recycle the remaining PAW back to
extraction; instead, Shell would place that final inventory of PAW in the EPLs. In NRCan’s
opinion, actively treating the water would be less risky to the environment than putting the water
in the EPLs to let natural processes provide treatment.
[414] Shell indicated that because the ore body to be mined is shallower than other mineable
areas, these lakes would be relatively shallower and larger in surface area than other EPLs in the
oil sands region.
[415] In ACFN’s opinion, littoral zones are too small in current pit lake designs. Shell stated
that it was working to optimize the design of the littoral zone, having in mind ACFN’s desire for
more littoral zones in the EPLs.
[416] ACFN stated that Shell had not considered the cumulative effects of discharge from
multiple EPLs into regional freshwater bodies. ACFN indicated that cumulative discharges from
EPLs would have a significant adverse impact on surface water quality in the Athabasca River.
[417] Shell indicated that it used the aquatic life guideline values from the regulatory water
quality guidelines (AENV 1999; CCME 1999, 2007; United States Environmental Protection
Agency -U.S. EPA- 2002) for the impact assessment of the Project on surface water quality.
Shell stated that it used various predicted mine-related water releases from other operators for
modelling water quality in the Project area at closure and in the far future, including EPL waters
from Imperial KOSP, Shell MRM, Syncrude Aurora North, and Shell JPM Phase 1.
[418] Shell predicted that concentrations of most contaminants in the EPLs would remain
below aquatic life guideline values or within natural variation of the receiving streams at the time
of initial discharge (2065) and in the far future (2165). Shell indicated that due to assimilation of
PAW from the reclaimed landscape in the EPLs at closure, concentrations of barium,
molybdenum, PAH group 6, sodium, strontium, sulphate, total dissolved solids (TDS), total
nitrogen, and vanadium would exceed guidelines or levels of natural variation.
[419] Shell stated that, due to the removal of MFT from the EPLs, it would use additional
Athabasca River water to fill the lakes. Shell noted that concentrations of aluminum, copper,
iron, lead, manganese, and phosphorus in the Athabasca River are high, compared with
regulatory water quality guidelines, which would cause EPL water to exceed these contaminants’
guidelines in 2065. In contrast, the use of Athabasca River water would result in concentrations
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of TDS, total metals, major ions, and organic contaminants in the EPLs to be within natural
variation of water river quality at closure and in the far future (2165).
[420] Shell indicated that the chronic effects benchmarks (CEBs) used in the EIA are
conservative thresholds by which potential effects of the Project on aquatic health can be
assessed. Shell developed the CEBs for the Project in accordance with the 2007 CCME protocol.
Shell concluded that the Project would have negligible effects on water quality in the Athabasca
and Muskeg Rivers, and no significant effects on fish, fish health, or human health.
[421] Shell used CEBs to conduct its assessment of the application case and PDC cumulative
effects on fish health. Shell noted that total metals and nutrients often exceeded aquatic life
guideline values in its PIC. Shell said that parameters that it predicted would exceed guidelines
under the base case snapshots would also do so in the PIC. Shell concluded that operating and
approved developments in the oil sands region would not appreciably change the levels of acute
and chronic toxicity, tainting potential, or labile naphthenic acids (biodegradable and more toxic)
and refractory naphthenic acids (less toxic and nonbiodegradable) in the Athabasca River. It
predicted that acute and chronic toxicity and tainting potential levels in the Muskeg River
watershed would be appreciably lower than aquatic life guideline values, and labile naphthenic
acids would be less than 1 milligram per litre (mg/l) under both the application case and the
PDC.
[422] Shell indicated that the EPLs would be low in key contaminants such as those that cause
chronic and acute toxicity and fish tainting. Shell predicted that labile naphthenic acids would be
below 1 mg/l at closure and in the far future and, therefore, below CEB values or within the
natural variability of existing local surface water bodies. Shell noted that the concentrations of
refractory naphthenic acids in EPL water would be higher than corresponding CEB values for
surface waters in the oil sands region. Shell noted that existing and proposed mitigation measures
would ensure that acute and chronic toxicity and tainting potential would be at levels appreciably
lower than the corresponding CEB values defined in the application. Shell committed to
continuous water quality monitoring during operations and post-closure.
[423] Shell stated that its proposed EPLs would bioremediate contaminants in water and would
help attenuate closure drainage flood flows. Shell indicated that even though its EPLs may not be
similar to naturally occurring lakes, they would become self-sustaining aquatic ecosystems and
would support fish and other aquatic organisms. Shell noted that there was no certainty about
when the fish from the EPLs would be safe to eat. Shell stated that, based on the literature, fish
would be safe to eat two to three decades after closure.
[424] OSEC asserted that naphthenic acids account for the largest contribution to the aquatic
toxicity of the water in the EPLs and that they may bioaccumulate within the tissues of aquatic
organisms and be passed up the food web. OSEC also noted that naphthenic acids may give fish
an abnormal taste or smell.
[425] NSFMFM and the Clearwater Band stated that although Shell had committed to ensuring
that EPLs would, with time, contain fish, it had not committed to ensuring that EPLs would
contain the same species of fish currently found in the Project area, and could not say when the
fish would be safe to eat. NSFMFM and the Clearwater Band expressed concerns about the time
required for EPLs to provide adequate fish habitat, the quality of the fish in the EPLs, and the
related health impacts should traditional land users consume fish from these EPLs.
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[426] DFO stated that there was uncertainty about the likelihood of success of EPLs and that
currently it does not consider EPLs to be a viable option for fish compensation. DFO noted that
EPLs would provide some degree of fish habitat over time and that required fish compensation
would be provided by Shell’s Redclay Compensation Lake.
[427] Shell confirmed that it would not build its own demonstration EPL. Shell said that it had
a high degree of confidence in its proposed EPLs based on ongoing research from Canadian Oil
Sands Network for Research and Development (CONRAD) and CEMA, Syncrude’s Base Mine
Lake (BML) demonstration project, the predictions from the models it used in its EIA, and its
proposed mitigation and contingency options. Shell committed to complying with current water
quality guidelines, continuing to work with regulatory agencies toward better understanding of
contaminant effects, and following CEMA's 2012 End Pit Lake Guidance Document (EPLGD).
[428] Syncrude and others have developed models that they intend to validate through
Syncrude’s BML demonstration lake. In Syncrude’s opinion, it was important that current
research and validation plans continue to completion; for this purpose, Syncrude would need a
couple of decades of data to confirm the success of its demonstration lake. Syncrude stated that
each EPL would be unique and must be successful, and even though the AER has approved
EPLs in concept, it would be ESRD’s responsibility to ultimately approve all forms of
reclamation, including EPLs.
[429] Shell stated that it had designed, in compliance with current regulation, the closure
landscape to drain toward wetlands and EPLs, and this would provide adequate passive water
treatment and protect water quality in the receiving streams. Shell also stated that it would
closely monitor the performance of the EPLs and would not release water into the environment
until Shell and the public can be assured that water quality meets the applicable criteria.
[430] OSEC stated that while high salt levels could be diluted, they would remain in the
receiving environment. OSEC stated that no water quality criteria have been developed yet for
EPLs despite CEMA undertaking this work in 2003.
[431] Shell stated that ESRD has not developed criteria for EPL water release. When asked if it
would commit to meet CCME and ESRD aquatic life guideline values when discharging water
from the EPLs in the absence of discharge criteria, Shell responded that it was reticent to just
agree to that because there are natural exceedances of CCME criteria currently occurring in the
Muskeg River watershed. Shell indicated that it has to be cognizant of what the background
water quality would be in the region into which Shell’s EPLs would be discharging. Shell stated
that in the absence of CEMA guidelines, it would agree to prepare a proposed set of criteria and
request ESRD’s consent to release on that basis, ensuring that the lower reaches of the Muskeg
River will be protected.
[432] Shell indicated that it had not provided and was not prepared to provide an economic or
technical feasibility assessment for actively treating EPL water in the event that the EPLs do not
perform as expected because Shell believed the need for such treatment was not currently
indicated. However, Shell said that if the EPL water did not meet criteria for surface water, it
could draw on its existing experience to build water treatment into its mitigation plans and treat
EPL water to make it acceptable. Shell stated that it had a high degree of confidence in the
overall functioning of EPLs and that there was considerable time available to implement
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adaptive management in accordance with CEMA’s EPLGD if monitoring indicated that
alternative water treatment was necessary.
[433] In Shell’s opinion, adaptive management is not about having fully developed lists of
alternatives at all times; it is about having a plan that can be delivered and a way of tracking and
measuring progress towards the company’s objectives. Shell indicated that one of the things that
it is directly engaged with, and is very interested in the results of, is the work with Syncrude on
its BML. Shell stated that monitoring and measurement plans would identify the trigger for when
it might need to explore alternatives in more detail. Shell indicated that it would start filling the
EPLs in 2050; this would give Shell 38 years to assess the BML progress and put in place
alternative plans if the monitoring shows that there could be challenges with the remediation of
the EPLs. Shell stated that its progress will be very closely tracked and monitored through its
engagement with the regulators. Shell is confident in what it can deliver and is committed to
doing what is necessary to make sure that at the end of the day, the mine will deliver the ultimate
closure and reclamation landscape that is necessary.
[434] Shell stated that other types of mining industries have used water treatment facilities to
either attenuate or eliminate the contaminants in the EPLs; it would have a significant cost, but
technically it would be feasible. Shell noted that through the Mine Financial Security Program
(MFSP), Alberta ensures that money would be available to do reclamation and that measures
would be in place to guarantee that operators meet progressive reclamation commitments.
[435] OSEC stated that EPLs would have long-term and significant adverse effects, and that
Shell had not demonstrated that EPLs would be technically or economically feasible. In OSEC’s
opinion, Shell’s EPLs would not become self-sustaining ecosystems. OSEC indicated that
Shell’s plan to demonstrate the efficacy of its proposed EPLs would essentially rely on
Syncrude’s BML test results and CONRAD and CEMA research. OSEC concluded that current
EPL modelling results are insufficient to approve the Project, and that the efficiency of EPLs to
treat/dilute PAW remained unknown and untested. OSEC indicated that Shell had not conducted
detailed assessments of alternative water treatment options that could be used in the event that
the EPLs do not work as intended.
[436] OSEC noted that although Shell's modelling predicted that the EPLs’ water quality would
exceed Alberta's water quality guidelines and several CEBs at closure and in the far future, Shell
concluded that the impacts on water quality would be negligible. OSEC also noted that Shell
would rely on adaptive management, particularly as it related to EPL malfunctions, for which
Shell had no contingency plans.
[437] OSEC disagrees with Shell's position that if there is a potential significant adverse effect,
particularly as it relates to EPLs, the answer should be monitoring and adaptive management. In
OSEC’s opinion, adaptive management has proven to be a failure. To support its position, OSEC
pointed out that
•
CEMA’s EPLGD stated that adaptive management has a poor track record worldwide and
stressed the need for a concrete plan for the various failures that may occur;
•
the Oil Sands Advisory Panel to the federal Minister of the Environment found that a clearly
focused set of objectives and a statistically sound decision-making process that can allow for
adaptive management in a rapidly changing oil sands environment does not exist; and
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•
Canada recommended contingency plans be developed because it was concerned about
Shell's ability to predict and control effluent quality from the EPLs.
[438] EC stated that adaptive management allows for change over time, so if things are not
working there are mechanisms for going back and making necessary adjustments in order to
achieve the successful outcome. EC agreed with Shell’s adaptive management approach to
address any potential adverse effects that may be identified through monitoring and apply the
appropriate mitigation.
[439] Shell stated that it has provided a comprehensive package of evidence on the potential
effects of the Project, on the mitigation that it proposed, and on how it would implement that
mitigation. The follow-up monitoring and the adaptive management programs that are planned
by Shell are to demonstrate the accuracy of its predictions and, to the extent that the predictions
are not accurate, to implement the adaptive management program.
[440] OSEC indicated that the Project will have significant adverse effects that cannot be
mitigated and will not be in the public interest, and that the Panel should not rely on adaptive
management as a solution for the Project’s potential adverse effects. OSEC said that Shell must
demonstrate that EPLs are viable by the date of its investment decision or provide a fully
developed contingency plan before it can be granted approval.
[441] Dr. Schindler, on behalf of OSEC, asserted that Shell had not fully evaluated possible
synergistic or additive effects of project contaminants. OSEC stated that targets for individual
contaminants were meaningless in mixtures and that Shell relied on single contaminant
guidelines for metals, which does not account for potential interactivity of effects from different
contaminants. Dr. Schindler advocated the work of EC, Kelly et al, and Parrott et al to better
assess compounding effects. Shell responded that where it knew the mechanisms of effect, it
took these into account when it developed its CEBs. Where it did not know the mechanisms,
Shell stated that it applied a reasonable level of conservatism. Shell indicated that current
Canadian and American criteria for single chemical analysis are the current industry standards.
[442] ACFN asked that any approval or recommendation that the Project proceed be made
conditional upon completion of an independent and scientifically rigorous assessment and
verification of the accuracy of models used to predict the functioning of EPLs. It also said that
such an assessment was required before the AER or a subsequent joint review panels issue any
further decisions on oil sands projects in ACFN's traditional lands.
[443] Dr. Miller, on behalf of OSEC, stated that more than 25 EPLs will be created in the
Athabasca River drainage, and each will contribute to the total loading of contaminants in the
system. OSEC stated that each of these lakes might meet aquatic life guideline values but that
Shell was inaccurate in making generalized statements about how overall compounding effects
from each lake could affect the regional aquatic ecosystem. This was further complicated by a
current lack of water quality guidelines for naphthenic acids and some PAH groups. OSEC noted
that discharge of salts from one EPL might not create a serious impact on a river system but the
cumulative impact could affect water quality far into the future. OSEC concluded that Shell did
not fully examine EPL cumulative discharge.
[444] OSEC noted that Shell seemed to find that hard-rock pit lakes were comparable to oil
sands pit lakes when they were successful but not comparable when they were problematic.
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OSEC stated that neither it nor Shell has expertise in EPLs since there are currently no experts in
this field because no oil sands EPL has been completed to date.
[445] Syncrude argued that it did not support CEMA’s EPLGD because it would not provide
guidance to regulators and operators in respect to the design and operation of EPLs. According to
Syncrude, the fact that it has reservations about CEMA’s EPLGD should not undermine
confidence in EPL technology. Syncrude noted that it has made significant investments to
continue operating for decades to come. This would accommodate progressive reclamation using
EPLs and assure the financial capability to see that reclamation through to a successful
conclusion. Syncrude added that the reality of valuable oil sands reserve back-stopping
reclamation success is at the heart of the MFSP.
[446] Shell stated that its difference of opinion with Syncrude about the EPLGD would not
affect Shell's ability to rely on BML to demonstrate the efficacy of Shell's end pit lake. Shell
considered the work Syncrude is doing to be very informative to all of industry. Shell stated that
it supports the EPLGD because it is trying to advance the science to help industry understand
EPLs and provide successful EPLs in the closure environment. A recurring theme in the EPLGD
was adaptive management, which Shell will apply to the Project in general and to pit lakes in
particular.
Analysis and Findings
[447] The Panel recognizes that Shell’s proposal to eliminate MFT from the Project’s EPLs
would improve current tailings management practices and could reduce fish tainting and
potential toxicity in receiving water bodies.
[448] The Panel notes NRCan’s concern that Shell would place the 16 Mm3 final inventory of
saline and toxic PAW in the EPLs. The Panel notes that the EPLs would also receive
approximately 52 Mm3 of tailings seepage and consolidation flux from 2050 to 2065, which the
Panel believes is a very significant volume. The Panel recommends that ESRD include the
following requirements for Shell to meet in any EPEA approval:
•
provide contingency plans for EPL water that does not meet EPL release criteria, including
active treatment options that Shell would implement to minimize impacts on receiving
streams;
•
validate the models used for predicting water quality in the EPLs and update mitigation plans
accordingly as information on the PAW resulting from Shell’s processes becomes available;
•
provide a research schedule for the testing of EPL predictions and design features; and
•
treat the entire volume of PAW that results from the drying of MFT at the end of mine life.
This treated PAW shall meet release criteria prior to placing it in the EPLs.
[449] The Panel acknowledges that regulators have conceptually approved EPLs for several oil
sands projects, subject to successful full-scale demonstration within 15 years after 2003, which is
only 5 years from now. The Panel acknowledges that Shell’s plan to demonstrate that EPLs
would become functional, self-sustaining aquatic ecosystems depends on Syncrude’s BML
demonstration test, which will not be completed for about two more decades. The Panel
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recognizes that mineable oil sands operators will not be able to meet the expectation to
demonstrate the efficacy of EPLs by 2018 that was established by previous joint review panels.
[450] The Panel realizes that Shell plans to start filling the EPLs in 2050 and that Syncrude’s
BML test results would be disclosed in the early 2030s. The Panel understands that if the BML
test results reveal significant issues with EPLs as reclamation options, Shell would still have
almost 20 years to implement feasible alternatives to the proposed EPLs.
[451] The Panel requires Shell to provide to the AER annual reports that describe: Shell’s EPL
research and development efforts for the proceeding year; Shell’s plans and timelines to
demonstrate the efficacy of EPLs within the next twenty years; and alternatives to passively
treating water in EPLs. The report must include all of Shell’s efforts and contributions toward
collaborating to demonstrate a full-scale EPL. The first such report must be provided two years
before the expanded Jackpine Mine plant start-up.
[452] According to CEAA, 2012, the environmental assessment must take into account
mitigation measures that are technically and economically feasible and that would mitigate
significant adverse environmental effects of the designated project. The Panel notes that Shell
declined to provide an assessment of alternatives for actively treating EPL water that would not
meet release criteria if EPLs do not function as planned. The Panel requires Shell to provide,
before beginning mining operations, a comprehensive economic assessment of feasible active
water treatment options that Shell could implement to ensure that EPLs would meet water release
criteria at closure.
[453] The Panel acknowledges that there is uncertainty about the ability to create, in a
functional and timely manner, an EPL that would support fish fit for consumption. The Panel
notes that Shell proposed that the NNLP compensate for the loss of fish and fish habitat and that
EPLs are not included as part of the proposed compensation but that nonetheless, fish from the
EPLs may be consumed by humans in the future. The Panel recommends that the Governments
of Canada and Alberta include a requirement in any approval ensuring that Shell monitors fish
tissue in the EPLs and, should the fish in an EPL exhibit elevated levels of contaminants,
implement government-approved mitigation measures to prevent consumption of fish until they
are safe to eat.
[454] The Panel understands that through the MFSP, Alberta will ensure that money will be
available to complete reclamation. The Panel also understands that the MFSP liability calculation
is based on approved reclamation and closure plans and includes activities such as treatment of
contaminated soil and water, management of tailings and tailings structures, and development of
lakes, watercourses, and wetlands, including filling water bodies. The Panel recommends that
ESRD review the MFSP liability calculation and, if required, make corresponding adjustments to
ensure that the total costs assigned to the treatment of contaminated soils and water are fully
covered in the event that EPLs do not perform as predicted.
[455] The Panel acknowledges interveners’ concerns about the lack of evidence demonstrating
that EPLs are technically and economically feasible and about Shell’s reliance on adaptive
management to address potential EPL did not perform as expected. The Panel recognizes that the
work that industry and others have completed through CEMA to update the EPLGD is a positive
step toward improving the design of EPLs. The Panel considers that this guidance document
contains reliable research about EPL design, but that until more information becomes available
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(i.e., Syncrude BML test results), the Panel can only view the EPLGD as a guidance document
and not as a regulatory tool. The Panel expects Shell to continue its participation in CEMA and
other multistakeholder groups to research and refine assumptions about EPL development.
[456] The Panel acknowledges interested parties’ concerns about adaptive management;
however, the Panel agrees with EC’s and Shell’s views that monitoring and adaptive
management are appropriate strategies for dealing with the uncertainties associated with EPLs.
The Panel recommends that ESRD include in any EPEA approval a requirement for Shell to
report on adverse effects identified through monitoring and the corresponding mitigation
measures implemented by Shell in accordance with its adaptive management plans.
[457] The Panel acknowledges interested parties’ concerns about Shell’s prediction that EPL
water quality would exceed thresholds in Alberta’s water quality guidelines and several CEBs at
closure and in the far future. The Panel also notes that Shell indicated that in the absence of EPL
water-release criteria, Shell would prepare a set of criteria for ESRD to approve.
[458] The Panel recommends that ESRD consider the following when developing the EPL
water release criteria:
•
The criteria should be consistent with LARP water quality limits, which are based on
provincial water quality guidelines.
•
There are no provincial water quality guidelines for chemicals of concern such as, but not
limited to, naphthenic acids and PAHs.
•
The Governments of Alberta and Canada should work together to ensure that EPL discharge
would have no significant environmental effects on fish and fish habitat.
[459] The Panel recommends that ESRD finalize and issue the EPL water release criteria in the
early stages of the Syncrude BML demonstration test so that the criteria can be incorporated into
the water quality objectives necessary to determine the success of EPLs.
[460] The Panel acknowledges that Shell complied with the requirements of CEAA, 2012 by
discussing environmental effects that are to be taken into account in relation to a change that may
be caused to fish and fish habitat as defined in the Fisheries Act. The Panel recognizes Shell’s
assessment of project-related effects to aquatic health through analysis of potential for chronic or
acute toxicity and increased stress on fish populations from release of contaminants. The Panel
agrees with Shell’s conclusion that there would be negligible project-related effects on the
Muskeg River and the Athabasca River, including the PAD.
[461] The Panel is of the view that Shell’s plan to manage surface water and PAW would assist
to prevent potential effects on receiving water bodies. The Panel finds project-related effects
from the EPLs will likely not result in a significant effect provided that Shell ensures that no
EPL waters are released to surface waters before meeting prescribed surface water quality
guidelines.
[462] The Panel agrees with the adaptive management concept and concludes that with the
implementation of Shell’s proposed mitigation measures and commitments and with the Panel's
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requirements, expectations, and recommendations, it is unlikely that significant environmental
effects would result from the use of MFT-free EPLs.
EFFECTS ON SURFACE WATER QUALITY
[463] Owing to the nature of the subject matter, the reader will see duplication between this
section of the report and the Use of End Pit Lakes section.
Evidence
[464] Shell stated that the water quality of operating streams would be monitored regularly
throughout operations to ensure compliance with corresponding regulatory requirements. Shell
indicated that the Project’s environmental controls for surface water quality during operations
include
•
separation of clean water and PAW streams: clean surface water from undeveloped areas
would continue to flow to nearby streams, whereas PAW would be collected within a closedcircuit system and used in the process;
•
collection of runoff from reclamation material stockpile (RMS), OBDAs, and off-site roads,
and dewatering/drainage from muskeg and overburden in polishing ponds;
•
conveyance of water from the depressurization wells to the ETDA; and
•
collection of seepage and runoff from the ETDA through perimeter ditches and interception
wells.
[465] Shell indicated that it used the aquatic life guideline values from the regulatory water
quality guidelines (AENV 1999; CCME 1999, 2007; United States Environmental Protection
Agency -U.S. EPA- 2002) and the Water Quality Based Effluent Limits Procedures Manual
(AENV 1995) for the impact assessment of the Project on surface water quality.
[466] Shell indicated that the CEBs used in the EIA are conservative thresholds by which
potential effects of the Project on aquatic health can be assessed. Shell developed the CEBs for
the Project in accordance with the 2007 CCME protocol.
[467] Shell used CEBs to conduct its assessment of application case and PDC cumulative
effects. Shell noted that total metals and nutrients often exceeded aquatic life guideline values in
the PIC. Shell stated that operating and approved developments in the oil sands region would not
appreciably change the levels of acute and chronic toxicity, tainting potential, or labile
naphthenic acids (biodegradable and more toxic) and refractory naphthenic acids (less toxic and
non-biodegradable) in the Athabasca River.
[468] Shell predicted that acute and chronic toxicity and tainting potential levels in the Muskeg
River watershed would be appreciably lower than aquatic life guideline values, and that labile
naphthenic acids would be less than 1 mg/l under both the application case and the PDC. Shell
noted that existing and proposed mitigation measures would ensure that acute and chronic
toxicity and tainting potential would be at levels appreciably lower than the corresponding CEB
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values defined in the application. Shell committed to continuous water quality monitoring during
operations and post-closure.
[469] Shell stated that concentrations of many other contaminants in the Athabasca River under
base case conditions are higher than the corresponding aquatic life guideline values, mainly as a
result of background watershed loading upstream of the oil sands region; contaminants with high
concentrations include aluminum, arsenic, cadmium, chromium, copper, iron, lead, silver, zinc,
total nitrogen, total phenolics, and total phosphorus. Shell indicated that high concentrations
typically occur during spring and summer and that these contaminants typically also have high
concentrations in the watercourses within the Project area under base-case conditions.
[470] Shell predicted that Project activities would have negligible effects on water quality in
the Athabasca River and that contaminants such as labile naphthenic acids, acute and chronic
toxicity, tainting potential, and TSS would increase only marginally in the Athabasca River
under the application case. Shell also predicted that concentrations of boron and refractory
naphthenic acids in the Athabasca River would increase downstream of the Muskeg River at the
end of decommissioning and in the far future, with negligible effects on fish, wildlife, and human
health.
[471] Shell predicted that all Athabasca River parameter concentrations would be within 10 per
cent of baseline concentrations or below applicable aquatic life guideline values. It expected that
changes in contaminant concentrations in fish tissues would remain below the CEBs. Shell
concluded that activities associated with the Project for the application case and PDC would
result in negligible effects on aquatic health in the Athabasca River.
[472] EC noted that water quality downstream of the proposed development would exceed
some of the CEBs that Shell developed for the Project. EC recognized that CEBs represent
sensitive responses determined in laboratory tests and that it would be difficult to extrapolate
these results directly to the receiving environment. EC stated that the use of a restricted range of
modelled precipitation underestimated the range in contaminant concentrations in the receiving
streams and the predicted biological effects. EC noted that the CEB approach was based on
assessing the response to a single chemical, creating uncertainty about the potential synergistic
interactions between contaminants in the complex mixtures found in the environment.
[473] EC recommended that Shell recalibrate its aquatic models every five years with best
available information and re-run simulations that estimate predicted impacts on the aquatic
environment and make the results publically available.
[474] EC noted that previous panels assigned to assess oil sands projects recommended that
specific water quality objectives be established for naphthenic acids. EC noted that these
objectives were still not developed and predicted that they would not be available for about five
years.
[475] Shell stated that under base-case conditions in the Muskeg River and Jackpine Creek,
measured concentrations of the following contaminants are higher than the corresponding
aquatic life guideline values: aluminum, barium, beryllium, boron, chromium, cobalt, copper,
iron, molybdenum, PAH Groups 1, 3, 5, 6, and 7, silver, strontium, and vanadium. Shell stated
that under the application case, the predicted peak concentrations of the above-mentioned
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contaminants would be less than the corresponding CEBs and would result in negligible effects
on aquatic health in the Muskeg River at closure and in the far future.
[476] Shell indicated that the effects of existing and approved projects on temperature, DO, and
sediment quality would be negligible. Shell stated that polishing ponds in existing developments
are an effective mitigation for the release of water from runoff, muskeg drainage, and overburden
dewatering. Shell also stated that no effects have been observed on the DO levels and sediment
quality of receiving surface waters; therefore, changes to these parameters are not significant for
the base case.
[477] Shell indicated that muskeg and overburden drainage from the Project would not affect
DO levels in receiving streams. Shell stated that data obtained from the operation of existing
polishing ponds suggest that oxygen-consuming contaminants would be reduced to
concentrations similar to the background levels observed in the Muskeg River. Shell noted that
DO concentrations in polishing-pond waters are often higher than background levels for the
small receiving streams, particularly during winter.
[478] Shell stated that the water that flows from muskeg drainage and overburden dewatering
to polishing ponds would typically attain equilibrium and achieve temperatures similar to
ambient receiving stream temperatures. Shell indicated that sporadically, the water temperature
of some ponds might exceed receiving stream temperatures; however, the most extreme cases
would increase receiving stream temperatures by less than 1°C with negligible effects on the
receiving stream.
[479] Shell stated that temperature, DO, and sediment quality in the Athabasca River would not
be affected by existing and approved developments. Shell stated that water temperature and DO
in the Athabasca River would not be affected by the Project due to Shell’s proposed mitigation
and the relatively small volume of water releases compared with the river flow volumes.
[480] Shell predicted that changes in PAH and metal in the sediments of receiving watercourses
and water bodies as a result of the Project would be negligible. The reclamation landscape and
operational and closure drainage systems would be geotechnically stable with a low potential for
erosion. Shell indicated that polishing ponds, wetlands, and pit lakes would trap eroded soils and
particulate contaminants in surface waters, reducing concentration of PAHs and metals in
receiving streams.
[481] Shell stated that it validated the surface water quality model used for the Project and that
the results of the validation indicated that the water quality model overpredicted the
concentrations of most of the contaminants when compared with observed data, and that
predictions for a few contaminants concentrations were slightly lower than observed data.
Despite these differences, predictions for most of the contaminants concentrations were
consistent with the observed data. In the EIA, Shell stated it used the whole effluent toxicity 9
approach to measure the toxicity of external tailings facility (ETF) water seepage. Shell’s results
also indicated that concentrations of naphthenic acids, all total metals, and all dissolved metals
were below the maximum values used to describe tailings pond seepage.
9
Water Quality Based Effluent Limits Procedures Manual, ESRD, 1995.
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[482] OSEC stated that over a four-month winter period in 2008, 11 400 tonnes of airborne
particulates, most of which were bitumen particles, were deposited within a 50 km radius of the
main upgrading facilities. OSEC indicated that NPRI data showed that mercury emissions from
upgraders in the area have increased several fold in the decade ending in 2010. OSEC noted that
there is little mention of airborne sources in water and of some groups of PAH-related
compounds, which are known to be increased in airborne emissions. OSEC also noted that PAHs
are now known to travel at least 90 km from upgraders in the area and to have increased the
background burden of lakes by from 2.5- to over 50-fold.
[483] Shell noted that OSEC had raised concerns about the level of mercury, PAHs, and other
compounds in the Muskeg River watershed that result from air emissions and water emissions
from oil sands development in the region. Shell stated that its evidence clearly showed that the
Project's air emissions would not measurably change water quality in the region, and it
reaffirmed that the Project would not have upgraders.
[484] Shell stated that due to the removal of MFT from the EPLs, it would use additional
Athabasca River water to fill the lakes. Shell noted that concentrations of aluminum, copper,
iron, lead, manganese, and phosphorus in the Athabasca River, already high compared with
regulatory water quality guidelines, would cause EPL water to exceed these contaminants’
guidelines in 2065. Shell also stated that in contrast, the use of Athabasca River water would
result in concentrations of TDS, total metals, major ions, and organic contaminants in the EPLs
being within the natural variation of water river quality at closure and in the far future.
[485] Shell stated that EPL water chemistry would be monitored during the filling period
before release. If the monitoring data indicates that releases will be toxic or cause undesirable
effects on receiving streams, the filling rate could be reduced to allow more time for toxic
contaminants to biodegrade. Shell also stated that if required, passive treatment in the lakes
might also be enhanced, or outflow directed to treatment wetlands for further treatment, to
produce satisfactory water quality before release to receiving surface waters.
[486] Shell stated that releases from pit lakes would be from surface layers and, as a result,
would have temperatures similar to the water bodies in the oil sands region, or would quickly
attain equilibrium with background receiving stream temperatures. Shell indicated that in the
event of detrimental changes to the thermal regimes of receiving streams, outflow from the pit
lakes would be directed to ponds or wetlands with enough residence time to allow thermal
equilibrium with the atmosphere to be obtained before release.
[487] Shell stated that it would implement a monitoring plan, in accordance with ESRD and
DFO requirements, to measure the effects of the Project and to confirm that the proposed
mitigation systems would be effective.
[488] Shell stated it is committed to maintaining water quality in the Muskeg River in
compliance with the Muskeg River Interim Management Framework for Water Quantity and
Quality and the comprehensive framework once it is developed. Shell would also comply with
the cumulative water quality limits for the Athabasca River under LARP. Shell stated it would
closely monitor the performance of these treatment facilities, and no water would be released
into the environment until the water quality meets accepted standards.
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[489] Shell stated it would continue to participate in multistakeholder organizations, such as
RAMP and CEMA, to monitor water quality in receiving watercourses and water bodies and to
confirm performance of mitigation. Shell indicated that it would work with regulators and
stakeholders to develop a detailed aquatics monitoring program for the Project. Shell stated that
the detailed aquatic effects monitoring program for the expansion would incorporate whole
effluent testing and monitoring of aquatic health and would allow early-warning identification of
cumulative effects followed by adaptive management actions as needed to mitigate these effects.
[490] OSEC noted that the RAMP and oil sands companies operate the existing network of
flow and water level monitoring stations in the region. OSEC noted that to date, assessment
reports have indicated that water monitoring in the Athabasca region was inadequate. OSEC
indicated that due to RAMP’s reported problems with the existing sampling programs, a general
lack of understanding of baseline conditions, and inadequate analytical capabilities, it would be
inappropriate to draw conclusions about new projects or impacts based on RAMP data.
[491] Shell indicated that with respect to the data used in the water modelling, Shell not only
relied on RAMP data but also on data from ESRD, EC, and Golder Associates. Shell stated that
most of the information collected was non-RAMP data. Shell noted it has supported monitoring
under RAMP and would support the Joint Canada-Alberta Implementation Plan for Oil Sands
Monitoring.
[492] Shell stated that changes to surface water and sediment quality in the PAD due to the
Project in conjunction with existing, approved, and planned developments would be negligible;
hence impacts on aquatic health in the PAD would also be negligible. Shell based its conclusion
on literature reviews, data analysis from these reviewed studies, and EIA model results.
Analysis and Findings
[493] The Panel finds that for the assessment of project effects on aquatic health, Shell used
current modelling programs, federal and provincial guidelines, and the latest CEBs. The Panel
understands that Shell validated the surface water quality model and that the predictions were
consistent with the observed data. The Panel agrees with EC’s recommendation to recalibrate
surface water quality models every five years with best available information and rerun
simulations to validate predicted effects on the environment. The Panel understands that the
whole effluent toxicity approach considers the combined effect of a mixture of substances in an
effluent. The Panel agrees with the methodology used by Shell to assess the synergistic
interactions between individual contaminants contained in the ETF process-affected water. The
Panel recommends that ESRD include in any EPEA approval a requirement that Shell recalibrate
surface water quality models every five years with best available information and re-run
simulations to validate predicted effects on the environment and ensure compliance with
regulatory water quality guidelines.
[494] The Panel believes that the data used by Shell was adequate based on what was available,
including RAMP data. The Panel recognizes that RAMP will be wound down in due course and
its relevant activities delivered under government management. The Panel also recognizes that
the Joint Canada-Alberta Implementation Plan for Oil Sands Monitoring proposes a more
comprehensive monitoring program that will address concerns about deficiencies in current
monitoring activities. The Panel acknowledges that the Government of Alberta will establish a
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new arm’s-length environmental monitoring agency; while this takes place, the environmental
monitoring in the oil sand region will continue through the joint federal-provincial program.
[495] The Panel acknowledges that the Muskeg River Interim Management Framework for
Water Quantity and Quality does not include water quality targets and limits for naphthenic acids
and PAHs, and that inclusion of these parameters is part of the recommendations that ESRD
provided in the interim framework. ESRD also highlighted in the interim framework the need to
develop a comprehensive management plan for the Muskeg River watershed in a timely manner.
In the absence of the comprehensive management plan, the Panel recommends that ESRD update
the Muskeg River Interim Management Framework for Water Quantity and Quality’s current
water-quality targets and limits to include naphthenic acids and PAHs to coincide with the Joint
Canada-Alberta Implementation Plan for Oil Sands Monitoring expected to be fully
implemented in 2015.
[496] The Panel concludes that with the implementation of Shell’s proposed mitigation
measures and commitments, federal and provincial government work on the Joint CanadaAlberta Implementation Plan for Oil Sands Monitoring, and Panel’s expectations and
recommendations, significant project or cumulative environmental effects on surface water
quality and aquatic health in the Muskeg River, Athabasca River, or PAD are not likely to result
from the Project.
NO NET LOSS PLAN
Project Effects
Evidence
[497] Shell stated that landscape alterations and surface flow diversions associated with the
Project will cause the loss of the following fish habitat areas and riparian areas in watercourse
segments and water bodies:
•
the upper Muskeg River mainstem
•
lower reaches of Wapasu Creek
•
unnamed tributaries and water bodies in the upper Muskrat River and Wapasu Creek
•
unnamed water bodies in the upper Muskeg River watershed
[498] Shell stated that the habitat losses amount to 795 347 m2 based on the surface areas of the
affected water bodies and watercourse segments on existing digital maps.
[499] In accordance with Fisheries Act requirements, Shell developed a draft NNLP in 2012
that provided details of Shell’s estimates of species-specific fish habitat losses and gains in the
Project area and Shell’s strategy to offset the losses. Shell noted that it identified several site
options in its 2007 Conceptual Compensation Plan based on DFO policy. Shell used decision
criteria to screen potential suitability of each compensation-site option, including
•
potential for sterilization of mineable bitumen,
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•
conflict with adjacent developments,
•
watershed size,
•
fish access and colonization,
•
previous stakeholder comments, and
•
long-term sustainability.
[500] Shell stated that the compensation option it chose would be located off site and would
entail development of South Redclay Lake in the Big Creek and Redclay Creek drainages, with
associated outlet channels. Shell listed the following as some of the attributes of developing the
South Redclay Lake option that made it Shell’s preferred option:
•
The site provides flexibility in sizing of the lake such that the lake can be developed to best
match the compensation required.
•
The site offers the potential for a phased development, which will provide opportunities to
build the lake in stages as compensation is needed.
•
The site allows potential integration with other compensation developments and to
potentially expand the lake in the future if necessary.
•
Development of the site would not require ore sterilization.
•
The site is located close to much of the disturbance area and would support the same fish
species as the affected habitat areas.
•
The site is located on a Shell lease.
•
The construction methods would result in the smallest disturbance footprint per unit area of
lake created.
[501] Shell confirmed that, in the event the PRM does not proceed, its intention was to continue
to advance its preferred compensation option with the understanding that the final size and scope
of compensation works would depend on whether one or both projects are approved.
[502] Shell noted that the final decision on the appropriate location for fish compensation
habitat would depend on a number of factors, including cost, regulatory approval, technical
feasibility, constructability, and acceptability to stakeholders. However, Shell acknowledged that
if any of these or other factors precluded development of fish habitat compensation at its chosen
location, Shell would follow the appropriate regulatory process to choose an alternative location
for approval.
[503] Shell noted that during the consultation process, First Nations suggested compensation
construction in the PAD would be appropriate. Although Shell considered that option, it found
that there was less certainty of actual benefits for fish compared to Shell’s option. Shell stated
that the reason it did not accept the PAD option was that it did not consider this option a “walkaway” solution and it would therefore involve regular maintenance in perpetuity.
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[504] Shell stated that the South Redclay Lake compensation location would parallel the
Athabasca River and would not impede wildlife movement along the river. Shell also concluded
that it would reclaim areas used for compensation lake infrastructure, such as access roads,
berms, stockpiles, laydown areas, borrow sites, and dams. Shell therefore predicted a negligible
residual effect on wildlife populations in the region.
[505] ACFN noted that the Ronald Lake Herd of wood bison, the only nonprotected herd and
thus is an important traditional resource located outside Wood Buffalo National Park, is near the
proposed Redclay Compensation Lake. ACFN stated that it anticipated the compensation lake to
inundate and destroy observed and known core Ronald Lake wood bison habitat, specifically a
habitat type known locally as “buffalo prairie.”
[506] Given that Shell showed that existing terrestrial habitat at the Redclay Compensation
Lake location has a high biodiversity potential, EC requested that Shell provide a comparison of
relative values for species at risk in species-at-risk habitat at the Redclay Compensation Lake
location and at alternative compensation lake locations. EC stated that such information would
provide direction on how to best avoid or lessen project effects on species at risk as required by
the Species at Risk Act (SARA). Shell disagreed with EC’s request and stated that because the
Redclay Compensation Lake is a mitigation measure that is being proposed to meet the
requirements of the Fisheries Act, issues surrounding species at risk should be taken up with
DFO and EC, as it is DFO that will finalize the location of the compensation lake.
[507] Shell stated that taking into account mitigation and compensation measures there would
be no project-related environmental effects on fish and fish habitat diversity.
[508] Some Aboriginal groups asked whether Shell had adequately taken into account early fish
life cycle stages and species favoured by them when devising its mitigation and compensation
plans.
[509] Shell noted that it had provided a detailed description of the various spawning areas
identified and how Shell would be compensating for lost spawning and rearing areas in its
NNLP. Shell added that the NNLP includes a description and qualitative rating of each habitat
unit in relation to the habitat requirements of fish at their various life history stages (i.e.,
spawning, rearing, feeding, and overwintering). Shell noted that very few fish species inhabit the
upper Muskeg River watershed and, according to DFO, the species present were less desirable
from a management perspective. Shell added that these species were also very tolerant of
fluctuations in water quality and flow. Shell also noted that the area is heavily affected by beaver
activity, which changes Muskeg River flows, thereby affecting preferred grayling habitat.
[510] Dr. Schindler did not agree with Shell’s conclusions about fish and fish habitat in the
Muskeg River. Dr. Schindler stated that Shell has understated damage to fish in the Muskeg
River. He indicated that there has been an 86 per cent decline in fish produced since
predevelopment. He stated that a study by Bond and Machniak (1979) counted over 6000 fish,
made up of 19 species. The study concluded that white sucker, longnose sucker, and arctic
grayling used the river as spawning habitat, while other species used the lower reaches as a
resting area or as a nursery. He also found Shell’s suggestion that beaver activity on the Muskeg
was affecting the grayling habitat to be absurd and stated that beaver and fish have coexisted in
the Muskeg watershed for millennia. He also noted that many papers indicate that beavers
increase fish habitat and wetland areas.
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[511] Shell said that it had consulted with First Nations and had incorporated Aboriginal
concerns into its NNLP. Shell emphasized that it used TLU information on fish species that
would be affected by the Project to finalize NNLP fish distributions for compensation. Shell
noted that the species Aboriginal groups identified as being of greatest importance for inclusion
in compensation planning were walleye, northern pike, grayling, and lake whitefish.
[512] Dr. Carver, on behalf of ACFN, claimed that Shell’s NNLP was descriptive, relied
heavily on untested professional opinion, and lacked thresholds or tests to determine
significance. OSEC contended that Shell pursued an approach to uncertainty whereby it
compensated for scientific shortcomings by using unacceptably low fish habitat loss calculations.
ACFN provided the following recommendations on how Shell could improve the NNLP:
•
Support the completion of a traditional-use study to identify the expected balance in TLU
opportunities with the NNLP and in the decades of mine operation before full NNLP
implementation.
•
Incorporate climate change projections into the hydrologic, geomorphic, and fish habitat
modelling, and communicate the methods and results.
•
Provide the selection criteria/weightings for the NNLP candidate compensation lake sites.
•
Provide information about the inputs and outputs associated with the hydrologic modelling
and all steps taken in calibration.
•
Provide additional information for the surrogate streams and geomorphic assessments.
•
Present uncertainty in compensation habitat estimates to regulators and explain the
implications of aggregate uncertainty for the goals of the draft NNLP.
•
Slow down the pace of mine development to allow the monitoring and adaptive management
approach to function successfully.
•
Choose monitoring contractors from an independent DFO-created eligibility list of approved
monitoring contractors for the roll-out of the NNLP.
[513] DFO agreed in principle with Dr. Carver’s recommendations to incorporate climate
change projections into hydrology of the lake and fish habitat modelling, provide selection
criteria weightings for NNLP candidate compensation lake sites, provide inputs and outputs for
hydrologic modelling, and assess uncertainty of key NNLP components.
[514] DFO observed that Shell designed the NNLP to compensate for species of recreational,
commercial, or Aboriginal use and that Shell did not intend the NNLP to directly replace habitat
losses on a species-by-species basis. DFO noted that it requested that Shell provide at least a 2:1
ratio of habitat replacement and provide monitoring to assess whether changes to this ratio would
be required over time. DFO stated that the species targeted were selected based on DFO’s local
and regional management goals, taking into account geographic and logistic constraints. DFO
noted it intends to continue working with Shell on finalizing the draft NNLP.
[515] Shell stated that in terms of direct project effects on fish, the fish community within the
direct Project footprint includes relatively few fish species, and the upper Muskeg River
generally does not provide habitat for migratory species from the Athabasca River. Thus fish
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compensation works would target specific species to increase fish diversity and trophic
complexity. For example, it would target sport fish such as arctic grayling.
[516] In its NNLP, Shell stated that it based habitat modelling of South Redclay Lake on a
mature lake, which South Redclay Compensation Lake may not be until 20 to 30 years after
initial filling. Shell said that the compensation lake would be available to the public once its fish
health testing indicated that Redclay Compensation Lake fish were safe to eat. For the purpose of
calculating long-term habitat gains provided by the lake, Shell assumed that the physical habitat
features (e.g., substrate conditions, shoreline vegetation, instream cover), primary production,
and water quality characteristics (including short-term mercury increases) were developed to a
stable and mature condition. Shell noted that it did not directly model the time lag until the lake
matured and the interim conditions while the lake was developing, which is part of the reason for
the 2:1 compensation ratio.
[517] Shell stated that it anticipated that the creation of the compensation lake would increase
mercury concentrations in fish tissue in a pattern similar to other reservoirs created in Canada.
Shell noted that mercury concentrations are generally highest in fish species that are top
predators. In South Redclay Lake, these species would be northern pike and walleye.
[518] Shell committed to implementing mitigation measures outlined in its NNLP in order to
reduce methyl mercury levels including:
•
removing trees and large shrubs that would otherwise be submerged by the reservoir;
•
informing stakeholders of the annual results of the mercury sampling and which species and
sizes of fish do not meet the guidelines for human consumption;
•
performing additional actions if mercury exceeds HC guidelines and background levels for
any species, such as closing the reservoir to domestic fishing, posting warning signs on site
and in the Alberta Fishing Guide for relevant species, notifying local stakeholders of the
status of fish in the lake, and intensively fishing to remove and dispose of the fish that exceed
the guidelines; and
•
installing a temporary drop structure to prevent Athabasca River fish from entering the lake
during the years when elevated mercury is predicted.
[519] Shell indicated that it had augmented the NNLP to account for ACFN concerns about
methyl mercury generation in the compensation lake and the time required for full compensation
of effects. ACFN voiced concern that the compensation lake would not produce harvestable fish
for a number of years.
[520] OSEC questioned the effectiveness of mitigation measures for mercury and other
compounds in Redclay Lake and also stated that, regardless of mitigation, mercury would be
present in the lake for 20 to 30 years.
[521] DFO confirmed that it could take 20 to 30 years before mercury levels were reduced to
concentrations that would make the fish safe to eat. DFO noted that Shell's proposal to remove
vegetation as well as large-bodied fish could lead to a shorter period of elevated mercury levels.
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[522] Shell stated that it is committed to monitoring for increased methyl mercury levels in the
compensation lake. When asked about methods for ensuring that fish in the compensation lake
do not enter an Aboriginal, recreational, or commercial fishery in periods in which there would
be a high methyl mercury load, Shell responded that it has proposed an intensive fish harvesting
program to remove the higher-trophic-level species from the lake.
[523] With respect to other mitigation measures that could be used to reduce methyl mercury,
Shell noted that the reservoir bottom could be stripped or the reservoir could be capped but that
these measures would significantly increase the footprint of the lake because of the need to have
overburden storage areas. The increase in footprint would provide little additional benefit to
limiting methyl mercury production.
[524] Shell stated that with effective implementation of planned mitigation measures as
outlined in the NNLP, mercury accumulation in fish from the South Redclay Lake would pose a
low residual human health risk. Shell noted that tissue mercury concentrations in walleye and
Northern pike in the compensation lake could exceed the HC consumption guideline for
commercial fish and that resource users may need to limit their consumption of these fish. Shell
did not expect concentrations in whitefish tissue to exceed guidelines.
[525] ACFN claimed that the mitigation measures that Shell proposed were largely advisory
based. ACFN stated that fish consumption advisories have been in effect for the Athabasca River
since 2003 and that additional advisories would be of little benefit and would not address the
problem of increased mercury contamination. ACFN further explained that even if mitigation
measures allow fish to be harvested, Dene people might not feel that fishing in a compensation
lake is a suitable alternative to fishing in traditional locations. ACFN stated its opposition to
destruction of the natural fish habitat and the replacement of it with “unproven mitigation” in the
form of a compensation lake. ACFN noted DFO’s uncertainty about the potential for the success
of Shell’s proposed compensation works.
[526] Dr. Schindler, on behalf of OSEC, stated that the compensation lake may be subject to
additional contamination through surface water runoff, snowmelt, spillages, and deposition from
the atmosphere. Dr. Schindler claimed that fugitive sources were likely an important source of
local deposition of mercury and PAH and stated that the Water Monitoring Data Review
Committee reached a similar conclusion. EC concurred that mercury can be emitted from
combustion sources, such as stacks, boilers, and fleet equipment, in particulate or gaseous form.
OSEC noted that dust blown from mine sites was implicated in some of the toxic trace metals
evaluated in the Kelly et al study and noted that stacks, in particular, can be an important source.
[527] OSEC said that the Kelly et al study concluded that considerably more particulate matter
and trace metals are being released from oil sands facilities than are reported in the NPRI. The
Kelly et al study also revealed that particulate deposition decreases exponentially with increasing
distance from emission sources, but that deposition can still be found more than 50 km away
from oil facilities. OSEC said that recent research by EC confirmed these findings.
[528] DFO confirmed that even though the Project does not have an upgrader, the
compensation lake would be within 50 km of another project’s upgrader. In addition, EC agreed
that emissions from the mine fleet would fall close to the source. OSEC indicated that this could
mean that the compensation lake could be subject to pollutants from the Project’s stacks and
mine fleet and from the upgraders of other projects in the area.
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[529] Dr. Schindler noted that some mitigation measures being applied to fossil fuel burning
and smelting sources throughout the U.S. should be applied to the Project. Shell responded that
atmospheric mercury did not necessarily coincide with mercury in fish tissue because most of
mercury in the environment does not contribute to changes in fish or water mercury
concentrations. Shell also identified some studies showing trends of decreasing mercury
concentrations in fish tissue in the region. Dr. Schindler disagreed with Shell’s conclusion,
stating that the Harris et al study indicated an increase in mercury in fish as a result of added
mercury in the environment. Dr. Schindler recommended that oil sands activities that add
mercury to the environment not be allowed. Dr. Schindler also recommended that measures be
taken to reduce emissions of toxic elements and compounds from upgraders, and that measures
be required to prevent the transport of emissions to streams from mined areas and infrastructure.
[530] Shell stated that compensation would be in a phased manner in accordance with the
timing of habitat disturbances. Shell stated it assumed that compensation would be provided at a
ratio of 2:1 and that timing would be based on the start of the impact on fish and fish habitat.
Shell noted that it might provide compensation earlier than required, and therefore may not need
to provide a 2:1 compensation ratio, but it did not provide timing details. Shell noted that it
would construct permanent inlet and outlet channels at closure once the full scale of lake
development for the Redclay Creek area was known and integrated. However, based on the mean
annual discharge from Redclay Creek and Big Creek, Shell expected lake filling would be
complete within the first two to four years after construction.
[531] Shell believed that future EPLs can be designed to perform as well as the existing Phase 1
compensation lake and that water quality concerns about drainage from the closure landscape
can be managed. Shell noted that the NNLP does not consider any credits for fish habitat created
within the future pit lakes or closure landscape that could provide for ratios much greater than
2:1. Shell recommended that regulators consider the use of MFT-free pit lakes and other closure
fish habitat as eligible compensation and provide proponents with appropriate guidelines to use
to achieve fish habitat compensation objectives.
[532] Shell stated its understanding that a greater-than-1:1 compensation is provided to account
for such factors as the time delay between when habitat is disturbed and when fully functioning
habitat is provided. Shell disagreed that a 2:1 ratio should be the minimum compensation
requirement. Shell stated this 2:1 requirement does not consider potential for early compensation.
Shell proposed that DFO scale the compensation ratio to timing of delivery of functioning
compensation habitat.
[533] OSEC asked DFO what options would be available if the compensation lake does not
work. DFO responded that it believed that the mercury would be manageable. It also stated that
the amount of time it expected mercury to be elevated was within a range of time in which it
would expect that ongoing work and study could determine the actual productivity of the lake
before fish from the lake are available for human use. DFO indicated that if the compensation
lake was not agreed upon during consultation, it could look at other options to compensate.
[534] OSEC also asked whether the lake would be considered to be habitat compensation
during the period of time that mercury levels in it were elevated. DFO responded that if fish have
to be isolated to ensure that they are maintained, that would not count as compensation time,
which is why compensation ratios are generally greater than 1:1.
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Analysis and Findings
[535] The Panel acknowledges that Shell provided a description of its project-related fish
habitat losses and gains in its EIA and draft NNLP as required by CEAA, 2012 and the Fisheries
Act.
[536] The Panel notes that proposed compensation for project-related effects will occur off-site
(Redclay Compensation Lake and associated works) in accordance with DFO’s hierarchy of
habitat preference under The Department of Fisheries and Oceans Policy for the Management of
Fish Habitat.
[537] The Panel finds that Shell provided only superficial rationale for its choice of
compensation lake site options in its NNLP. The Panel finds that Shell did not provide the
criteria it used, what specific parameters it considered, or any weighting of these parameters in
its decision making process. The Panel also finds that Shell did not specify how it incorporated
traditional knowledge into its evaluation.
[538] The Panel notes that Shell provided a general description of factors used to inform its fish
habitat compensation site decision. The Panel acknowledges Shell’s statement that Shell took
into account effects on terrestrial resources in conducting its compensation site assessment.
However, the Panel finds that Shell’s compensation site selection study provided no
methodology or criteria specific to how potential terrestrial species effects were incorporated into
its decision making.
[539] The Panel accepts Shell’s determination that there are no bison in the LSA. However, the
Panel notes that the LSA did not include the NNLP compensation habitat on the west side of the
Athabasca River. The Panel believes that bison may use habitat on the west side of the river
where the compensation lake is proposed. The Panel finds that a level of uncertainty about the
potential environmental effects on wood bison remains, and in the absence of a SARA recovery
strategy, it is difficult to determine the significance of the effect.
[540] The Panel recognizes that the NNLP provides extensive detail on how Shell calculated
individual fish habitat requirements, the habitat areas lost, and the proposed habitat areas gained
through compensation. The Panel acknowledges that the NNLP methodology Shell applied is
typical of other compensation program approaches used regionally and nationally and that it is
acceptable to DFO.
[541] The Panel also notes that DFO will require Shell to provide a degree of compensatory
habitat (2:1) through the NNLP commensurate with predicted current and future losses. The
Panel understands that the amount and type of compensation is to be monitored and adjusted
through adaptive management if required. The Panel also notes that the chosen compensation
does not replace the same habitat or species lost in the Muskeg River, but that it was targeting
desirable species, such as arctic grayling, and their habitats.
[542] The Panel notes that Shell’s NNLP did not provide quantifiable benchmarks or thresholds
for assessing significant effects on individual species or on population diversity and abundance.
The Panel further notes that Shell did not provide any quantifiable adaptive management
benchmarks or triggers.
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[543] The Panel acknowledges that the proposed 2:1 compensation ratio for fish habitat takes
into account delays in the compensation works becoming fully operational and available for
public use. The Panel understands that an extended period (more than 20 years) will elapse
before fish are available for human consumption.
[544] The Panel recognizes that elevated surface water methyl mercury levels may lead to
bioaccumulation of mercury in fish and that these fish could be consumed by local residents. The
Panel acknowledges that Shell has proposed some mitigation measures to address mercury input
into the compensation lake and has proposed measures to prevent fish consumption when methyl
mercury in the lake is high. The Panel agrees that preventing human consumption of fish that
have unhealthy level of mercury is critical.
[545] The Panel understands that PAHs and mercury are ubiquitous in the environment and that
forest fires and anthropogenic disturbances are important contributing factors. However, the
Panel recognizes that a significant amount of the PAHs found in the environment may be due to
inefficient combustion and fugitive emissions from oil sands operations. Based on recent studies
(Schindler, Kelly, and Kirk), the Panel is of the opinion that Shell’s proposed compensation lake
may also receive atmospheric emissions from existing facilities and upgraders. It is unclear to the
Panel whether Shell’s modelling accounted for aerial deposition of PAH and for mercury
concentrations. The Panel finds these emissions to be important contributors to the overall
contaminant load in the compensation lake. The Panel recommends that the Government of
Canada ensure that Shell updates its models to account for sources of aerial deposition of
mercury and PAH. Shell should provide the results to the Government of Canada and determine
appropriate mitigation measures in consultation with the appropriate government departments,
stakeholders, and Aboriginal groups if the predictions are different than what was presented to
the Panel.
[546] The Panel is of the view that Shell’s predictions about methyl mercury levels in the
compensation lake carry some degree of uncertainty. The Panel further notes that information
gaps regarding human health effects of exposure to PAH concentrations still exist.
[547] The Panel recommends that the Government of Canada require Shell to implement a
monitoring plan to determine the level of mercury and other contaminants in the postconstruction compensation lake and to identify any resulting contaminant increases in fish tissue.
In the event that fish tissue contaminants exceed HC recommendations, the Panel recommends
that DFO require Shell to implement the adaptive management program as outlined in its NNLP.
[548] The Panel recommends that the Government of Canada ensure Shell develops a specific
timeline, including milestones, for when fishery resources provided through compensation works
would be publicly available. The proposed timeline should be incorporated into any Fisheries
Act s. 35 authorization.
[549] The Panel notes Aboriginal concerns over the possible inability of Shell’s compensation
strategy to provide immediate compensation for lost project-related fishery resources. The Panel
finds that Shell provided limited contingency options for the event that the proposed
compensation works do not meet the prescribed 2:1 ratio.
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[550] The Panel finds that uncertainty remains as to when Shell’s proposed compensation plan
can actually provide publicly usable fishery resources. The Panel also finds that Shell has not
fully considered options in the event it cannot meet its Fisheries Act compensation requirements.
[551] The Panel recommends that DFO require Shell to address the following matters in its
final NNLP, and that DFO ensure that these matters are addressed, to its satisfaction, before
issuing any Fisheries Act section 35 authorization:
•
consider the effects of climate change in fish habitat loss/gain calculations
•
provide methodology selection criteria weightings for NNLP candidate compensation lake
sites
•
provide inputs and outputs for hydrologic modelling
•
assess uncertainty of key components of the NNLP
[552] The Panel recommends that the Government of Canada provide specific benchmarks or
thresholds for assessing significant effects on individual target fish species and on population
diversity and abundance. The Panel also recommends that the Government of Canada ensure that
Shell incorporates these benchmarks or thresholds into its proposed adaptive management
strategy.
[553] The Panel is of the view that there will be no significant adverse effect on fish and fish
habitat if Shell proceeds with its proposed compensation works and if the Panel’s
recommendations are followed.
Cumulative Effects
Evidence
[554] Shell stated that it considered potential effects on fish habitat and abundance that could
not be mitigated to be residual effects. Taking into account mitigation and compensation, Shell
concluded that there will be no residual project-related impacts on the Muskeg or Athabasca
Rivers. Shell concluded that if magnitude of effect was negligible, it did not rate geographic
extent, duration, reversibility, and frequency. Shell therefore concluded that there would be
negligible effects on fish habitat, fish abundance, and diversity in both its application case and
PDC.
[555] Dr. Schindler, on behalf of OSEC, stated that it was unrealistic to assume no permanent
biological damage to the Muskeg River, including its resident fish species, from the 10 mines in
operation and development in the region. OSEC stated that it would be difficult to assess whether
the No Net Loss policy goals would be met because Shell assessed components of the impacts as
discrete components but did no integrated assessment.
[556] DFO remained concerned that Shell had not assessed the potential cumulative effects of
oil sands development on Athabasca River Delta fish and fish habitat and that potential
cumulative effects downstream in the Muskeg River and Lower Athabasca River watersheds
remain uncertain. DFO recommended that the Panel recommend that Shell conduct a CEA on
downstream fish habitats, including middle reaches of the Muskeg River, JPM, and KOSP fish
habitat offsets, Kearl Lake, the lower reaches of the Muskeg River, and the Athabasca River,
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including the Athabasca River Delta. DFO stated that although it was possible for an individual
operator to undertake this assessment, an alternative would be to conduct this assessment in
cooperation with other oil sands operators and regional stakeholders.
[557] Shell disagreed with DFO’s recommendation that additional assessment of downstream
fish habitats was required. Shell stated that it had provided CEA as part of the Project’s EIA for
features in the Muskeg River watershed and for reaches of the Athabasca River below the
confluence with the Muskeg River. Shell concluded that its current CEA provided the necessary
information to inform a public interest determination. Shell also stated that it continues to be
committed to participating in and providing data toward regional initiatives as requested.
[558] DFO also recommended that Shell be requested to develop, in collaboration with
Aboriginal groups, industry, and government, initiatives to detect, monitor, and adaptively
manage cumulative effects on fish habitat in the Lower Athabasca River watershed, and if effects
are detected to mitigate or offset those effects.
[559] ACFN claimed that No Net Loss planning does not have a good overall track record and
quoted the Cohen Commission Final Report that stated that over half of the projects the
Commission reviewed had smaller compensation areas than harmful alteration, disruption, and
destruction (HADD) areas; over one-third clearly did not achieve No Net Loss; and at the
operational level, all indications are that Canada is not meeting its No Net Loss obligations.
[560] In response to an ACFN question about what methodology DFO uses to assess
cumulative impacts, DFO responded that, on a case-by-case basis, it strives to offset the residual
effects of each project and thus prevent the occurrence of cumulative effects on fish habitat. DFO
stated that because there is uncertainty about how the compensation lakes will function and how
they will contribute to the natural ecosystem, associated cumulative effects are also uncertain.
[561] In response to an ACFN question about whether DFO had developed any methodology
for assessing cumulative impacts in the region, DFO noted that any methodology applied would
most likely be related to population-level assessments. DFO explained that there are existing
methods for assessing fish population characteristics in the region for different species, and if a
change in populations is detected, a cumulative effect could also be determined. DFO confirmed
that it had not considered any other contingency options in the event that Shell’s proposed
compensation plan cannot fully compensate for lost fish habitat through adaptive management.
[562] In its NNLP, Shell stated that environmental consequence ratings for wildlife impacts
from the Project varied from negligible to low and that these ratings would not change as a result
of the construction of South Redclay Compensation Lake. Shell noted South Redclay Lake
would flood a long narrow paleochannel characterized by wetlands and beaver impoundments.
Shell noted that South Redclay Compensation Lake and associated infrastructure is parallel to
the Athabasca River, and as such is not predicted to impede wildlife movement along the
Athabasca River. Shell stated the areas for compensation lake infrastructure would be reclaimed
and thus were predicted to have a negligible residual effect on wildlife populations in the region.
[563] Shell noted that ACFN's own expert had agreed with Shell that bison are not habitatlimited in northeast Alberta and that disease has been one of the reasons for historic population
declines. Shell referred to EC’s testimony that some wood bison populations in the region were
actually increasing threefold. Shell said that if a species is declining in Alberta or across its
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North American range but the cause of the decline is not associated with the Project or
cumulative effects within the RSA, Shell’s CEA would conclude that effects within the RSA
were not significant.
[564] Dr. Jones, on behalf of ACFN, presented data from a current study he was completing on
PAH concentrations in the bile of fish taken from the Athabasca River and Slave River at
locations upstream and downstream of existing oil sands mining operations. Dr. Jones believed
the data demonstrated that contaminants from oil sands operations are reaching the aquatic food
webs of the Slave and Athabasca Rivers. However, Dr. Jones agreed that, based on the data, it
did not appear that an increase in PAH concentrations in fish bile were correlated with
incidences of lesions and other abnormalities in the collected fish or other aquatic health impacts.
Dr. Jones also noted that increased PAH concentrations in fish bile were not a direct measure of
human health risk because little or no bile is consumed by humans and that the relationship
between PAH concentrations in fish bile and muscle tissue is not fully understood. Dr. Jones
stated that human health risk could only be estimated from PAH concentrations in tissue
consumed by humans and that these analyses were currently underway.
Analysis and Findings
[565] The Panel acknowledges that Shell concluded that there would be negligible cumulative
effects on fish habitat at the local and regional level based on its proposed mitigation and NNLP
compensation.
[566] The Panel understands that DFO concurred with Shell’s observation that impacted
species in the upper Muskeg River are not important target species and that any fish and fish
habitat losses from the upper Muskeg River can be accommodated through offsite compensation
efforts.
[567] The Panel notes that DFO asked the Panel to recommend that Shell conduct a CEA on
downstream fish habitats and that it develop and implement, in collaboration with Aboriginal
groups, industry, and government, initiatives to detect, monitor, and adaptively manage
cumulative effects on fish habitat in the Lower Athabasca River watershed, and if adverse effects
continue to be found, to mitigate or offset those effects. The Panel does not believe that a single
proponent should have to complete this CEA or monitoring and instead recommends that DFO
lead the CEA on downstream fish habitats and the monitoring. The Panel refers to the Regional
Effects section of this report for further discussion on this issue.
[568] The Panel finds that no significant cumulative effects are expected because no target
species of direct interest identified in the upper Muskeg River reaches would negatively affect
downstream productivity in the Athabasca River.
[569] The Panel notes Shell’s claim that the fish habitat compensation works are parallel to the
Athabasca River, and Shell predicted that there will be no impedance to wildlife movement
along the Athabasca River.
[570] The Panel finds that little evidence was provided about the importance of bison habitat
where the compensation lake is proposed. The Panel is of the view, however, that the
compensation works could affect habitat for the Ronald Lake Herd, the only herd in the RSA that
Aboriginal persons are allowed to hunt. Without identification of critical habitat through a
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recovery strategy, it is difficult for the Panel to assess the importance of the area of the Redclay
Compensation Lake for meeting the objectives of the recovery of the wood bison population, and
hence the significance of environmental effects. Accordingly, the Panel recommends that the
Government of Canada determine whether the habitat in the area of the Redclay Compensation
Lake where the compensation lake is proposed is critical for the survival of the Ronald Lake
Bison herd. In the event the federal recovery strategy for wood bison includes critical habitat in
the area affected by the NNLP, the Panel recommends that the Government of Canada and Shell
work with other key stakeholders, including the Government of Alberta and Aboriginal groups
that use the area for hunting wood bison, to modify the NNLP to avoid or minimize the effects
on bison habitat.
[571] The Panel understands that the study undertaken by Dr. Jones is not yet complete and that
further analysis of the results is ongoing. The Panel does not find the results presented to be very
compelling or conclusive at this stage. While it does appear that there is an increase in PAH
concentration in fish bile immediately downstream of the oil sands mining areas, it is not clear
how or whether the study can distinguish between PAHs that may be originating from oil sands
mining operations or from natural bitumen outcrops in the bed and banks of the Athabasca River,
or other sources. The Panel notes that the data do not seem to support a correlation between PAH
concentrations in fish bile and lesions or other abnormalities in fish. It is not known whether
there is a correlation between PAH concentrations in fish bile and muscle tissue, and therefore
whether there is a link between PAH concentrations in bile and human health risks. The Panel
believes that Alberta should consider concerns related to PAH and fish bile once the results of
Dr. Jones’s studies are finalized.
EFFECTS OF TAILINGS PONDS ON MIGRATORY BIRDS
Evidence
[572] Shell noted that migratory bird landings in tailings ponds occur in the oil sands and were
a possibility for the Project. It noted that incidents were more prevalent during inclement
weather. To prevent birds from landing on the ponds, Shell stated that it employs a deterrent
system that detects approaching birds and engages a hazing device to dissuade birds from the
area. Shell stated that the effectiveness of this system was 96.9 to 99 per cent, based on tests
conducted by the manufacturer. Shell noted that this technology is more effective than a random
radar system, where hazing actions are emitted at random intervals, because it prevents
habituation.
[573] Shell stated that the deterrent system is fully operational and, in the case of power failure,
would “fail on,” sending continuous blasts. Shell stated that it had planned no other adaptive
management. ACFN noted that the “fail on” mechanism did not work in 2007 when 16 bird
mortalities were reported in one of Shell’s tailings ponds. Shell stated that this was due to a radio
communication board failure and not due to a malfunctioning unit.
[574] In determining the effects of tailings ponds on migratory birds, Shell said that the
magnitude of effect of a typical bird group landing in a tailings pond would be slight for most
populations of species at risk, and minor for whooping crane. Shell stated that in 2011, the total
number of birds recovered from all the tailings ponds in the oil sands region was 70 birds, most
of which were ducks. Shell said that any bird mortalities are unfortunate. It stated that it was
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working to prevent these mortalities from occurring. It concluded, however, that the number of
birds impacted by tailings ponds is insignificant when compared with wind turbine kills and
hunting.
[575] ACFN stated that operators have not effectively managed bird-oiling events in the past
and that there is still an inadequate capability to manage the risks that tailings ponds pose to
birds, particularly in inclement weather.
[576] ACFN noted that the oil sands region is in a migratory bird route. It stated that it was
concerned about the increase in the number of tailings ponds on the landscape. ACFN stated that
in 1992 there were 22 km2 of visible industrial water bodies; in 2008 that area had increased to
80 km2 and would increase to 121 km2 with the addition of the Project.
[577] ACFN noted that more tailings ponds and less natural wetland may translate into
increased usage of tailings ponds by migratory birds, which may result in potential health effects
if these birds are consumed by local people.
[578] ACFN showed bird mortality incidents for more than 40 bird species, noting that some of
the species are listed or are important resources for local First Nations. ACFN also referenced a
study by Dr. Cassidy-St. Clair that demonstrated that in 2011, 3565 birds landed on PAW ponds
(including tailings, recycle water, emergency dump ponds, and any other water that may contain
harmful or hazardous materials) at five oil sands operations, and 2408 of those birds belonged to
the duck group. It noted that the total number for the JPM and MRM projects was 767 birds.
ACFN noted that birds were able to fly away in many of these cases but worried that the
reproductive fitness of birds exposed to PAW may be reduced. ACFN noted that indirect
mortality in the oil sands was unknown because these fly-away birds are not monitored. Shell
said that monitoring of birds that come into contact with tailings ponds is very challenging. EC
agreed that monitoring off-site mortality would be difficult but is nevertheless important for fully
understanding the impact of tailings ponds on migratory birds.
[579] MNA and ACFN stated that migratory routes of bird species may be changing due to oil
sands development and noted that air pollution from the stacks, loss of vegetation, presence of
reflective metal, and noise may be contributing to these changes. EC confirmed that migratory
patterns may be shifting, but it has not formally documented this shift. It stated that the Joint
Canada-Alberta Implementation Plan for Oil Sands Monitoring has proposed evaluating this
matter.
[580] EC noted that whooping cranes are one of the most endangered species in North
America. It said that approximately 48 per cent of the population may migrate over the oil sands
region. Shell noted that whooping cranes are unlikely to land in tailings ponds because they
prefer to land on land as opposed to open water and that no whooping cranes have been found in
tailings ponds to date. EC stated that they have, however, been detected flying over and landing
near the Project LSA. EC stated that if mortality occurs, it could have significant negative
population-level consequences because of the small size of the whooping crane population. In a
modelled population viability analysis, EC estimated that the minimum viable population size of
whooping cranes over a span of 100 years is 40 breeding pairs. EC stated that in 2012 it recorded
66 pairs, which is less than the 75 pairs reported in 2011.
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[581] EC agreed that the Project activities and infrastructure, on their own, would not likely
result in sufficient wildlife mortality to have population-level consequences for most migratory
bird species at the scale of the RSA, given the low mortality rates reported at tailings ponds in
recent monitoring programs. However, EC noted that effects on migratory birds must be avoided
in order to comply with the Migratory Birds Convention Act, 1994 (MBCA) and that it was
particularly important to avoid mortality of species at risk such as, whooping cranes. As a result,
EC recommended that Shell implement all possible measures to avoid the potential for migratory
bird mortality related to the Project, including removing surface oil from tailings ponds to the
extent possible.
[582] EC stated that there are deficiencies or limitations with the deterrent system because
migratory birds are still known to land, usually during inclement weather. EC was not aware of a
process that would completely prevent those impacts, but strongly suggested that Shell contain
the oil on its tailings ponds as additional mitigation to prevent birds from becoming oily if they
land. Shell stated that it agrees that operations should be conducted to minimize potential contact
of birds with residual oil in tailings storage areas, and it will look at the viability of residual oil
removal at its operations. Accordingly, Shell stated it would provide findings to EC and ESRD
with a recommended path forward.
[583] Shell developed a monitoring program to record fly-overs and landings on various water
bodies in the area and is collaborating with the University of Alberta to conduct a risk
assessment on these data. Shell hoped that the information collected would help determine
higher-risk areas for bird landings and allow Shell to increase the deterrent and observation
efforts at those sites. Shell committed to conform to any monitoring recommendation proposed
by this study.
[584] Shell stated that workers spend thousands of hours per year conducting mortality
searches. ACFN noted that while Shell stated that over 5000 employees contribute to search time
during regular operations, Shell had reported only 160.4 hours of dedicated search time. ACFN
noted that substantial variation occurs in bird detection among operators and recommended that
independent monitors be involved in conducting these observations.
Analysis and Findings
[585] The Panel observes that the increasing prevalence of tailings ponds on the landscape in
northeastern Alberta combined with a decrease in natural wetlands increases water hazards for
migratory birds. The Panel notes that this issue is of particular concern for species with low
abundance or identified as species at risk.
[586] The Panel finds that, in general, the deterrent system has been very dependable and
effective. While any fatalities are regrettable, the Panel determines that the number of fatalities is
an extremely small percentage of the total number of birds that are said to be migrating through
the area and that this effect is not significant. The Panel finds that the potential effects of birds
landing on tailings ponds are appropriately prevented and mitigated by the use of the deterrent
system.
[587] The Panel notes that birds land on tailings ponds in inclement weather even with
deterrent systems. The Panel has determined that in these cases, the recommendation by EC to
contain and remove residual surface oil from tailings ponds on an ongoing operational basis
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would reduce immediate mortalities and would help mitigate other types of effects of bird
contact with oil. The Panel is satisfied with the approach suggested by Shell and recommends
that the Governments of Canada and Alberta ensure that Shell evaluates the technical and
economic feasibility for removing residual surface oil from tailings ponds.
[588] Although the Panel notes that the number of bird landings tends to be low and the birds
tend not to be species at risk, the Panel believes that any effect on species at risk would be
significant. The Panel notes that the buffer between the 2012 population of whooping cranes and
the minimum viable population is 22 pairs. The Panel further notes that the number of pairs in
the population decreased by nine between 2011 and 2012. Considering that the buffer is very
small and the species appears to be in a decline, the loss of any individuals in the population
would reduce the buffer and would increase the risk that the minimum viable population would
be approached, unless the actual population increased otherwise. Should a species at risk land in
a tailings pond, the Panel finds there to be a significant effect. The Panel notes that there have
been no reported incidents of whooping cranes landing in tailings ponds and believes that the
effect of tailings ponds on whooping crane to be not a likely one.
[589] The Panel finds that more information is required by industry in general on the effects of
tailings ponds and other PAW on birds when mortality is not immediate. There is little or no
information on the potential long-term effects on reproductive success or behaviour as a result of
exposure to tailings ponds along migration routes and any resulting health effects from
consumption by local people. Therefore, the Panel recommends that the Government of Canada
consider if more information is required on the potential long-term effects on migratory bird
reproductive success or behaviour as a result of exposure to tailings ponds along migration
routes. The Government of Alberta should also consider if more information is needed on
potential resulting health effects of consumption of hunted birds by local people. The
Governments of Canada and Alberta, along with key stakeholders, should determine if studies
are required to examine these issues.
[590] Similarly, the Panel notes that the Joint Canada-Alberta Implementation Plan for Oil
Sands Monitoring has proposed to evaluate the possible change in bird migration patterns in the
region. The Panel agrees that this information would be useful. If evidence shows that migration
routes of birds are changing, the Panel is of the opinion that tailings ponds may not be the same
continuing hazard to these birds in the future. However, as stated above, tailings ponds should
still be considered hazardous to migratory birds and thus mitigated as recommended until such
results are confirmed.
METHODS USED TO ASSESS EFFECTS ON TERRESTRIAL RESOURCES
Estimating Land Cover Composition and Wildlife Habitat Availability
Evidence
[591] To assess land cover composition, Shell used Landsat satellite imagery to quantify land
cover types (e.g., percentage composition of old-growth forests and wetlands) present in the
RSA. Shell said that the Landsat imagery used for the terrestrial RSA provided the best available
data for this assessment because finer scale Alberta Vegetation Index (AVI) data were not
available at the RSA scale, and that finer scales of habitat simply cannot be represented at a
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regional scale. Shell also stated that even if finer-scale data (such as AVI) were available, the
analysis would have been rendered too computationally intensive.
[592] EC stated that Landsat mapping cannot accurately describe habitat availability in the
RSA, and it introduces a high level of uncertainty and potential error in Shell’s predictions. EC
stated that models derived from coarse-scale habitat mapping may overestimate habitat
availability at the RSA scale resulting in a potential underestimation of project and cumulative
effects. For example, EC noted that Shell’s RSA mapping did not include forest stand age, an
important determinant of habitat use by wildlife, including several species at risk. EC further
stated that the Landsat data was flawed because it grouped much of the finer-scale habitats into
broad habitat classes, negating the finer habitat units in favour of a coarser representation of the
landscape. EC also stated that because Shell used coarser Landsat data, it considered that Shell’s
wildlife habitat model output had low predictive accuracy at the RSA scale. EC noted that other
recent EIAs in the oil sands region have used more detailed habitat information at the RSA scale,
but it did not identify the specific EIAs.
[593] EC recommended that Shell use the AVI data available for the RSA in order to increase
predictive accuracy. EC also said that other sources of information could be used, including
Phase 3 forest inventory available from the province of Alberta. EC indicated that when
combined with field validation, this data would have provided some forest age-class information
and would result in a much better prediction than using the coarse-scale habitat Landsat
mapping. EC confirmed that it would be difficult to be precise about land-cover type and habitat
availability, given the coarse-scale data used in Shell’s analysis.
[594] When Shell was questioned about predicted levels of certainty in RSA land-cover
mapping that used Landsat data, it responded that it believed the mapping was 75–80 per cent
accurate.
[595] ACFN stated that the Landsat image classification cannot differentiate the impacts on
patterned fens or between a marsh and an open bog. ACFN argued that Shell should have built
detailed vegetation plots for verifying wetlands (including peat lands) and that without field
verification the accuracy of preliminary vegetation maps was in question. ACFN also stated that
it was unclear whether Shell had mapped vegetation in the RSA according to any standards that
would coordinate Shell’s effort with other ongoing regional mapping procedures.
[596] ACFN also submitted that Shell did not describe the accuracy of the AVI data used in the
LSA models.
[597] In order to predict habitat availability in the RSA for wildlife under PIC, base case,
application case, and PDC scenarios, Shell used habitat suitability index (HSI) models that relied
on Landsat imagery for 11 key indicator resources (KIRs) and species at risk. Shell provided
results from models that varied by species, depending on the amount of data available on
species-specific habitat relationships. Shell explained that it developed the model for each
species based on published data, expert knowledge, and professional judgment, all of which it
used to interpret habitat relationships as index scores. Shell reported that there was a lack of field
data for all 11 species, so it could not validate model predictions. Instead, Shell stated that it used
professional judgment to check model output for conformation with the current state of
knowledge about ecology and habitat preference for each species. EC stated that Shell should
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collect additional baseline data on the distribution and abundance of wildlife species to better
validate its predictions.
[598] FMFN’s assessment concluded that the vast majority of wildlife habitat models (198 of
228) used in oil sands EIAs were not validated, not adequately documented, or did not perform
well. FMFN stated that as such, predicted local impacts are likely inaccurate and, therefore,
regional cumulative effects predictions are likely inaccurate as well because habitat models need
to be validated and predictions confirmed. FMFN concluded that confirmation of predictions
requires scientifically defensible wildlife surveys to determine habitat use and population
densities in the oil sands region.
Analysis and Findings
[599] According to the Agency’s Cumulative Effects Practitioner’s Guide, if little or no
information is available during a CEA or if uncertainty in predictions arise in a CEA due to
variations in natural systems, a lack of information, or the inability of predictive models to
accurately represent complex systems, any limitations this places on the assessment and any
assumptions made must be clearly stated and the resultant uncertainty explained, otherwise it
may later bring into question the usefulness of the CEA. The Cumulative Effects Practitioner’s
Guide states that, although uncertainty can arise in CEA predictions, a record or audit trail of all
assumptions, data gaps, and confidence in data quality and analysis should be given to justify
any conclusions.
[600] The Panel is of the opinion that use of Landsat imagery for estimating land-cover type is
a concern in the context of modelling available habitat (e.g., wetlands and old-growth forest) in
the RSA and adds substantial uncertainty to Shell’s predictions of habitat availability in base
case, application case, and PDC scenarios. This is compounded by the fact that Shell did not
present any measures of error for its predictions in the EIA. The Panel notes that the provincial
TOR requires that the proponent include a “description of the deficiencies or limitations in the
existing environmental databases, how deficiencies and/or limitations were addressed, and their
impact on the analysis and any appropriate follow-up.”
[601] During the hearing, Shell estimated the measure of error associated with the use of
Landsat imagery to be ±20–25 per cent based on its professional judgment. Given Shell’s
reliance on professional judgment, the Panel is unable to assess the accuracy of this error
estimate for the purposes of its assessment but has used the estimate in considering the potential
effect of this uncertainty on Shell’s predictions and the possible significance of project effects.
[602] The Panel believes that Shell’s use of Landsat imagery for predicting availability of
wetlands and old-growth forest at the base case results in uncertainty in current EIA models of
wetland and old-growth forest availability in the RSA. It appears to the Panel that this
uncertainty in current models was subsequently propagated into Shell’s predictions of pre- and
post-closure wetland and old-growth availability in the RSA, making it difficult for the Panel to
assess the significance of cumulative effects on old-growth forest and wetlands. The Panel
believes that Shell’s predictions of wetland habitat and old-growth forest availability in the RSA
under all scenarios should be subject to ±20–25 per cent rates of uncertainty/error. The Panel
therefore concludes that it is possible that Shell’s predictions represent overestimations of the
amount of wetland habitat (particularly peat land) and old-growth forest that will be present in
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estimations resulting from ±20– 25 per cent error may be equally possible, given the requirement
by CEAA, 2012 to consider EA decisions in a precautionary manner, of greater concern for
decision-making is the potential for overestimations of existing habitat availability.
[603] The Panel believes that the aforementioned uncertainty related to Landsat imagery was
also propagated throughout Shell’s EIA in all of its HSI models for predicting wildlife habitat
availability at base case. Each of Shell’s HSI models included the Landsat error at base case (±25
per cent) plus any additional error associated with the modelling exercise (i.e., no HSI model will
provide a perfect representation of species habitat preferences, with the degree of certainty
dependent on the amount of information available and, varying greatly by species). The Panel
notes that Shell did not provide an estimation of the error associated with each species HSI
model output at base case. The Panel realizes that had Shell been able to validate the models
using field data, certainty around model output would be greater. The Panel also notes that
despite EC’s suggestion during the SIR process that Shell collect additional baseline data to
validate its EA predictions, for all 11 species modelled by Shell, none had sufficient field data
for appropriate model validation. Therefore, given that error is additive, the Panel concludes that
each HSI model output could have an overall error rate associated with Shell’s predictions of
habitat availability at base case that is greater than 25 per cent. And, because Shell then projected
this same Landsat data into future scenarios (application case and PDC), model uncertainty may
increase because these cases are subject to other predictions that are also uncertain (e.g.,
reclamation plans, lease boundaries, market values, etc.).
[604] The Panel notes that Shell did not present measures of uncertainty for AVI data that it
used for predictions about wetland habitat use in the LSA. However, the Panel finds that this is
not as serious a concern given that this data is of a finer scale of accuracy than the Landsat data,
therefore the degree of confidence is greater.
Determination of Significance
Evidence
Study Area Size and Configuration
[605] Shell stated that its RSA was 2 277 376 ha and that the Project footprint (excluding Phase
1) was about 13 291 ha. Shell originally developed the RSA to encompass both the proposed
PRM and the Project. Shell stated that discipline-specific experts developed RSAs to represent
areas in which project effects could overlap with the effects of other activities in a non-trivial
way. FMMFN #468, ACFN, and EC said that Shell’s RSA was too large to be able to conclude
significance for many impacts, including changes to wetlands and habitat availability for
wildlife. They indicated that because of the large size of the RSA, local project effects were
diluted and less likely to be determined to be significant at the regional scale. ACFN suggested
that the larger the RSA, the smaller the apparent contribution of each action.
[606] Shell chose the RSA based on a number of considerations, including the following:
•
at least two moose home ranges,
•
the boundaries of natural regions and vegetation classifications,
•
the defined woodland caribou habitat areas,
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•
the further potential measurable effect in combination with approved and planned projects in
the region, and
•
inclusion of the community of Fort McMurray and other areas likely for future community
expansions.
[607] Shell predominantly presented project effects on wildlife habitat availability in the
context of the RSA as opposed to the LSA. Both OSEC and EC stated that Shell’s approach to
assessing significance was flawed given that it was difficult to evaluate the importance of effects
on the local area and that the assessment of significance of project effects should be focused on
the LSA. EC supported OSEC’s position, stating that project effects should have been evaluated
at both the local and regional scales to provide a complete understanding of project effects and
appropriate mitigation measures. ACFN also said that Shell did not justify the methods it used to
assess significance.
[608] Shell’s LSA included the development areas of both Phase 1 (7511 ha) and the Project
(13 291 ha), for a total development area of 20 802 ha. Shell also included a 500 m offset buffer
in its LSA to account for indirect effects of the Project, for a total LSA size of 29 624 ha.
According to Shell, the buffer zone varied in width depending on the configuration of the Project
development area. Shell’s assessment of project effects on terrestrial resources included a
consideration of the effects of Phase 1, the Project and the buffer.
[609] EC stated that it was unclear whether Shell had combined the effects of the Project with
Phase 1 when evaluating the effects of the Project on all terrestrial indicators, namely species at
risk. EC further stated that this approach did not allow for an accurate assessment of additional
habitat loss as a result of the expansion alone, or for the determination of appropriate mitigation
measures for any additional habitat loss.
Thresholds
[610] Shell stated that it considered cumulative effects on wildlife to be significant if they
compromised resilience such that populations were no longer likely to be self-sustaining,
ecologically effective populations.
[611] EC stated that it was very difficult to know at what point of habitat loss a species was no
longer self-sustaining and ecologically effective, making real-world application difficult. EC also
stated that Shell’s assessment misrepresented how significance was typically determined in
environmental assessments, namely that significance should be based on the context of the local
and regional wildlife populations, as indicated in the TOR. EC said that the scope of the EIA
should be the LSA and the RSA, but that Shell had expanded this to include larger scales of
reference, e.g., provincial and national. EC stated that determinations of significance resulting
from comparisons with these considerably broader scales can be very misleading and, as such,
stated that it was not satisfied with Shell’s determination of significance.
[612] OSEC noted that in the Total Joslyn North Mine Project Decision (ERCB Decision 2011005), that Panel used a 20 per cent habitat loss threshold to determine significant effects on
wildlife. That Panel also considered that any effects on species at risk were significant. OSEC
also submitted that widely available guidance on critical habitat thresholds or disturbance
thresholds was available in CEMA’s Terrestrial Ecosystem Management Framework (TEMF),
which suggests that the level of disturbance to wildlife should be under 10 per cent of natural
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range of variability (NRV). OSEC noted that if Shell had used the guidance in the TEMF, it
would have concluded that at the RSA level, 13 of 19 species would be subject to significant
effects. OSEC also stated that Shell failed to consider in its assessment the Fort McMurray IRP
guidance on thresholds, including a population target for moose. OSEC stated that despite all
three of these potential sources of available thresholds, Shell did not make use of thresholds to
determine the significance of effects in its assessment.
[613] During the SIR process EC asked Shell to calculate the NRV of habitat and wildlife
populations in the RSA and compare habitat availability and estimate population size at the base
case, application case, and PDC in order to inform the analysis of environmental consequence
and significance of cumulative effects. Shell indicated that it did not include the NRV in its
assessment of significance. Shell referred to the concept of critical habitat thresholds as reported
in the scientific literature, indicating that habitat loss of up to 70 to 90 per cent may be required
before a critical habitat threshold is reached. Shell explained that any change of more than 20 per
cent in the measurement end point was considered a high-magnitude change. However, EC
stated that Shell described a 40 per cent loss of habitat for caribou as being a low magnitude
effect. OSEC argued that the critical threshold approach, which could take a species to the brink
of extinction before corrective measures were initiated, was inconsistent with CEAA, 2012 and
SARA, both of which require that the precautionary approach be taken. EC stated that the 70 to
90 per cent threshold is not precautionary, and that thresholds can vary depending on several
factors, including the specific species and the study area. EC also stated that there was much
uncertainty around thresholds and that habitat loss in the range of 20 to 40 per cent can be
enough to change a population trajectory.
Professional Judgment
[614] Shell stated that it used professional judgment to determine significance of effects on
terrestrial resources, including wildlife habitat. Shell said that it based its EIA methodology on
the TOR for the Project, guidance from the Agency, methodologies recommended by the CEMA,
and standard environmental assessment practices.
[615] OSEC and ACFN did not agree with Shell’s means of assessing significance of effects on
terrestrial resources, and in particular, argued that Shell relied too heavily on the professional
judgment of Golder and did not use clear thresholds to make significance determinations about
effects on terrestrial resources. OSEC argued that if the proponent’s professional judgment was
unsupported by evidence, it should be disregarded by the Panel. ACFN said that Shell did not
clearly indicate what factors it considered in making the professional judgments that led to
significance determination or how judgments may have been peer reviewed or verified by
different parties or processes. ACFN further stated that clear thresholds should be used for
determining significance in order to balance and improve significance evaluations.
[616] In response, Shell stated that in the absence of frameworks under LARP, no applicable
thresholds for assessing the effects of the Project are mandated by government policy or
regulation.
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Ecological Context
[617] The Project footprint is immediately adjacent to a number of other existing and approved
oil sands mines, including Shell MRM, Syncrude Aurora North, Syncrude Aurora South,
FHOSP, and Imperial KOSP.
[618] OSEC and FMMFN #468 said that Shell should have included ecological context in its
assessment of significance. FMMFN #468 said that Shell had not appropriately considered
ecological context in its methodology. OSEC said that the true ecological context that Shell
should have used was an LSA and RSA that has been and would be further adversely affected by
industrial development, particularly given that Shell had stated that the LSA would be
completely disturbed during the life of the Project, with the exception of the 500 m buffer.
[619] Shell said that it did look at the ecological context by looking at best available knowledge
pertaining to each species, such as population trajectories and amount of habitat remaining near
the study area. Shell indicated that it did a wider search for available data at the provincial or
national level if that data was not available for the vicinity of the study area.
Analysis and Findings
[620] The Panel notes that Shell often considered Project effects in terms of the effect on the
RSA, whereas the Panel is of the opinion that the significance of project effects needs to be
considered at the LSA and RSA scales.
[621] The Panel notes that Shell originally chose the RSA to encompass both the PRM and the
Project, but that Shell did not change the RSA size even after it assessed PRM and the Project
separately. The Panel believes Shell’s RSA size is inappropriate for the Project alone. The large
proportional difference in the ratio of the LSA to RSA causes a “dilution effect”, whereby the
effects of the Project essentially get lost in the very large RSA, making it difficult to determine
the significance of effects (e.g., loss of wildlife habitat) of the Project on the RSA. The Panel
also finds that this dilution factor is problematic when using Shell’s determination of significant
project effects, and therefore the Panel was unable to rely on Shell’s determinations of
significance.
[622] The Panel finds it noteworthy that Shell did not appear to use any of the available
thresholds when it made its determination of significance for effects on wildlife (e.g., TEMF,
Fort McMurray IRP, or thresholds used in the ERCB Decision 2011-005). Instead, Shell based
decisions largely on professional judgment and, in some cases, on information on specific
species trends at a broader scale (RSA, provincial, or greater). The Panel believes that had Shell
used some of the available thresholds, it would likely have determined that some effects related
to wildlife habitat loss were significant and adverse.
[623] The Panel acknowledges that the Cumulative Effects Practitioner’s Guide states that the
assessment of cumulative effects is often hindered by a lack of thresholds, particularly for
terrestrial components of ecosystems. The Panel notes that the Guide advises that in the absence
of defined thresholds, the practitioner can: 1) suggest an appropriate threshold; 2) consult various
stakeholders, government agencies, and technical experts (best done through an interactive
process such as workshops); or 3) acknowledge that there is no threshold, determine the residual
effect and its significance, and let the reviewing authority decide if a threshold is exceeded.
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[624] The Panel believes that Shell’s rationale for deciding what constitutes a significant effect
is unclear and largely based on professional judgment, not on existing thresholds from guidance
documents and scientific literature. The Panel notes that Shell has stated there was a lack of
clear, established thresholds for terrestrial resources, and therefore it appears that Shell has
decided to take the third option described in the Guide as stated above. The Panel will therefore
determine which thresholds are appropriate for assessing the significance of project effects.
[625] The Panel believes that when addressing uncertainty, conclusions should be made
conservatively, employing the precautionary principle where appropriate. CEAA, 2012 includes a
requirement to ensure that designated projects are considered in a careful and precautionary
manner to avoid significant adverse effects. Consequently, where there is an absence of
agreement on appropriate thresholds for assessing the significance of project effects, the Panel
will use the 20 per cent loss threshold adopted by the Joslyn North Mine project JRP and
recommended in the TEMF for assessing the potential significance of habitat loss.
[626] Although the Panel used the 20 per cent loss threshold as a general guide when making
decisions about significance, the Panel recognizes that the overly large size of the RSA makes it
difficult to base such decisions solely on the numerical and other predictions for the RSA
provided by Shell given its methods.
[627] The Panel notes that the Agency’s Guide to Determining Whether a Project is Likely to
Cause Significant Adverse Environmental Effects (November 1994) advises that ecological
context of the area to be developed should be considered as a criterion for determining whether a
project has significant effects. Specifically, the Guide states that, “The adverse environmental
effects of projects may be significant if they occur in areas or regions that have already been
adversely affected by human activities, and/or are ecologically fragile and have little resilience to
imposed stresses.”
[628] Although Shell maintained that it did consider ecological context, the Panel believes that
Shell’s use of ecological context was not consistent with the approach outlined in the Agency’s
guidance because it did not explicitly discuss the effects of existing and approved projects
immediately adjacent to the proposed Project, nor did it address the fragility of the area to be
affected (e.g., lenticular patterned fen). The Panel is of the view that had Shell appropriately
considered the ecological context of the Project, it would have recognized that the Project occurs
in an area already adversely affected by human activities given that the Project footprint is nearly
surrounded by numerous existing and approved oil sands operations, including Shell’s MRM and
JPM Phase 1 mines, Syncrude’s Aurora North and South mines, FHOSP, and Imperial’s KOSP.
[629] Although a number of other mine projects are close or directly adjacent to the Project’s
footprint, Shell did not consider these mines to be contributing to effects on terrestrial resources
at the LSA scale and considered them only at the RSA scale in the cumulative effects context.
The Panel also finds that the 500 m buffer around the Project footprint used by Shell to define
the LSA is not particularly useful and only further confuses the interpretation of local project
effects. By adding a 500 m buffer to the Project footprint to define the LSA, Shell gives the
impression that an area around the Project footprint will be undisturbed during operations.
However, the Panel understands that the Project shares boundaries with other oil sands projects
and that the 500 m buffer includes lands that are not on Shell’s lease. Hence the lands in the
buffer may be developed in the future and not maintained intact (e.g., wetlands or old-growth)
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for wildlife habitat. This lack of clarity about the role of the LSA buffer during Project
operations has increased the Panel’s difficulty in interpreting and assessing the effects on
terrestrial resources.
[630] The Panel believes that the way in which Shell defined the LSA to include both the
approved JPM Phase 1 mine and the Project footprint makes it difficult to assess the effects of
the Project alone at the LSA level. For example, the results presented by Shell propose a 40 per
cent loss of old-growth forest from the Project. However, given that the remainder of the LSA is
made up of the Phase 1 mine site, plus a 500 m buffer that is not intended to be protected from
development, it is unlikely that the other 60 per cent of old-growth forest in the LSA will be
maintained. The proposition that only 40 per cent of old-growth will be destroyed is not a
reasonable interpretation of Shell’s information. Another example is provided by table 4.3-1 of
appendix 1 in Shell’s May 2012 submission, which indicates that 12 613 ha of wetlands will be
directly and indirectly lost or altered by the expansion and Phase 1 projects but does not indicate
how many hectares are attributed to each project.
[631] The Panel believes that Shell’s methods for determining effects of the Project and
cumulative effects on wildlife habitat are problematic given Shell’s reliance on Landsat data, the
lack of measures of uncertainty, and the size of the RSA. The Panel believes that the
interpretation of local project effects is flawed given the size and configuration of the LSA and
its buffer. The Panel further believes that Shell’s determination of significance of effects on
wildlife habitat is unclear due to the overuse of professional judgment, its failure to use existing
thresholds, and the lack of ecological context. As such, the Panel relied on the evidence provided
and tested and employed its own analysis to make determinations regarding significance of
Project and cumulative effects on terrestrial resources. When evaluating Shell’s predictions for
significance, the Panel took into account Shell’s numerical prediction, the RSA dilution factor,
and the potential uncertainty around the prediction.
EFFECTS ON WETLANDS
Project Effects
Evidence
[632] Shell stated that 47 per cent of the land cover in the LSA is wetlands. Shell’s plans
propose removing all wetlands in the proposed development area. According to Shell, from base
case to application case, 12 613 ha of wetlands (91 per cent of the resource) will be lost or
altered due to land clearing and the indirect effects of groundwater drawdown, leaving 1282 ha
of wetlands at closure. Of the 12 613 ha of wetlands that will be lost, 85 per cent are peatlands
(i.e., bogs and fens). Shell stated that it would reclaim 3618 ha of wetlands post-closure, but
confirmed that peatlands cannot be reclaimed.
[633] Shell noted the presence of a large lenticular patterned fen (642 ha) in the northeast corner
of the Project area and stated that 16 per cent of it would be directly affected by mine clearing
and the remaining 84 per cent by drawdown. Shell stated that the fen contains a special plant
community, and is the only known community of its kind in the RSA. Both Shell and Imperial
identified this fen as a special plant community KIR due to its unique landform characteristics.
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[634] According to OSEC, wetlands provide several key ecological services and special
functions including the accumulation of carbon (sequestration), the slowing of water runoff
allowing for longer time intervals for groundwater recharge, and the moderation of storm water
runoff and attenuation of flood pulses. OSEC also maintained that wetlands are important for the
maintenance of water quality, and that the natural microbe communities of wetlands can
transform, sequester, bind, and isolate many undesirable materials (e.g., contaminants) from the
water column, thereby purifying the water. OSEC emphasized that wetlands are also
disproportionately valuable for wildlife, concentrating insects, fish, birds, and mammals in
closely linked food chains. According to OSEC, the Project is not in the public interest because
losses of wetland habitat would translate into significant effects on wildlife and on several
species at risk and migratory birds.
[635] EC stated that loss of peatlands and limitations on reclamation are among its primary
issues and concerns. EC recommended that Shell experiment with peatland reclamation and
report on successes and challenges. EC expressed particular concern regarding the loss of the
unique lenticular patterned fen, indicating that the graminoid fen matrix may provide suitable
habitat for several federally listed species, including yellow rail. EC recommended that Shell
identify and implement measures that avoid the effects of drawdown on the lenticular patterned
fen and, in particular, on yellow rail habitat during Project construction and operations.
[636] Shell outlined potential mitigation measures that could minimize drawdown effects on
the fen, including establishing a mine setback or constructing an engineered mitigation such as a
barrier and pumping system designed to mimic natural water levels and flows in the fen. Shell
stated that it did not propose specific mitigation to avoid drawdown effects on the lenticular
patterned fen during construction and operations, but confirmed that it has already committed to
monitoring the fen as part of its wetland monitoring program. Shell discounted the mine setback
option as it would sterilize bitumen in the northern part of the mine. During the SIR process,
Shell discounted the engineered mitigation method based on suggestions by third-party experts
that success of such measures would be low due to a lack of understanding of the complex
relationship between natural water levels and flow in the fen. Shell acknowledged that FHEC
was developing strategies to minimize effects of its operation on the McClelland Lake Fen, but
Shell did not believe that this strategy can be applied to the lenticular patterned fen.
[637] Shell stated that the reclaimed landscape would include a greater proportion of upland
habitat and open water compared with predisturbance levels of wetlands. As a result, Shell stated
that there would be more habitat area for some species (i.e., those that prefer uplands) and less
for others, particularly wetland-dependent species. However, Shell said that wildlife that
dependent on wetlands would have ample habitat in the RSA and that habitat loss in the LSA
should not be a significant issue. While EC agreed with Shell’s conclusion that the Project would
not likely cause a significant adverse effect on habitat availability for species at risk at the scale
of the RSA, it accorded this to the difficulty of assessing LSA effects within the large size of the
RSA given that local project effects become diluted and are thus unlikely to be considered
significant on their own at the regional scale.
[638] EC and OSEC both stated that reclamation of peatland habitats is not currently possible
in the mineable oil sands region or will be limited by landform topography in the final reclaimed
landscape, resulting in permanent habitat loss for species that occupy peatland habitats. EC
stated that because peatlands cannot be reclaimed, the reclaimed landscape would shift from a
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lowland-dominated ecosystem before development to an upland-dominated ecosystem after
closure, resulting in a shift in the wildlife community. ACFN also expressed concern about the
permanent loss of most of the wetlands in the LSA and the availability of habitat for wetlanddependent species. EC further stated that effects on wetland-dependent species such as the
yellow rail may be permanent given the limitations in reclaiming peatland habitat. EC submitted
that effects would be likely in the LSA and that they need to be mitigated based in part on the
requirements of SARA. EC suggested that in the event that Shell’s proposed mitigation measures
cannot reduce the loss of habitat, measures such as conservation allowances may be considered
to mitigate the residual effects of the Project on habitat loss for species at risk and migratory
birds, especially those that use wetlands (e.g., yellow rail, horned grebe, and rusty blackbird).
ACFN recommended that the Panel set approval conditions to address the re-establishment of
diverse habitats similar to those that existed before disturbance, including monitoring to
demonstrate the progress in achieving these habitats and the use of the reclaimed land by wildlife
and fish species.
[639] OSEC, EC, and ACFN said that Shell should implement conservation allowances (also
referred to as habitat offsets) to compensate for the loss of wetland habitat in the LSA. OSEC
asserted that despite irreversible loss of peatlands and loss of habitat for numerous species at
risk, and despite EC’s observation that Shell had not provided enough mitigation for these
effects, Shell had refused to consider conservation offsets. OSEC recommended that Shell
implement an offset mitigation strategy in which Shell would restore degraded wetlands or
purchase and conserve existing wetlands that would otherwise be degraded or destroyed. OSEC
said that the Panel should require that the Project follow the guidelines in Alberta’s current
wetland policy for the White Area (the settled portion of Alberta): a requirement of a 3:1 ratio
for replacement wetland area to disturbed wetland area. EC recommended that Shell refer to the
design criteria outlined in EC’s Operational Framework for Use of Conservation Allowances.
[640] Shell stated that it did consider offsets but rejected them on the basis that they were not
required as part of its mitigation because the effects of wetland habitat loss on wildlife would not
be significant, with the exception of effects on woodland caribou. Shell further stated that the
Project, independently, would not likely result in any significant adverse effects, and therefore
project-specific offsets were not necessary. Shell also indicated that it looks to the Government
of Alberta for direction on the need for and use of conservation offsets but that the use of such
offsets is not required under current policy guidance such as the LARP.
[641] Shell acknowledged that peatlands cannot be reclaimed but said that loss of wetlands will
be mitigated through reclamation and availability of wetlands in the RSA. Shell stated that it
would construct large wetlands according to the Guideline for Wetland Establishment on
Reclaimed Oil Sands (CEMA 2007) that would provide a number of important functions in the
closure landscape, including habitat provision, run-off flow attenuation, biodegradation, and
sediment capture. Shell stated that its wetland reclamation plans include strategies considering
succession and sustainability of wetland ecosystems, and as such, Shell proposed that specific
areas such as depressional landscapes and areas surrounding closure drainage features would be
revegetated with wetland species. Shell indicated that it would expect these areas to evolve into
wetland in 10 to 30 years. Shell stated that loss of wetlands is not irreversible. Shell also stated
that it is currently providing funding and participating in studies spearheaded by Syncrude and
Suncor to construct peatlands on reclaimed mine areas.
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[642] According to OSEC, site clearing and groundwater drawdown significantly change soil
salinity and hydrology. OSEC further stated that the best reclaimed wetlands on process-affected
oil sands mining sites to date are salt marshes that are low in species biodiversity compared with
the freshwater peat wetlands, which predominate in the predisturbance landscape. OSEC
provided a journal article by Rooney et al in which the authors assert that peat wetlands
destroyed by open pit mining will not be replaced given the constraints imposed by the postmining landscape (greater topographic variation and large elevated landforms) and the sensitivity
of peatland vegetation to high conductivity and ion concentration of the salt, metals, and
naphthenic acids present in the post-mining landscape. OSEC also said that the closure landscape
would have an increased susceptibility to forest fires due to a drier landscape caused by a loss of
peatlands and increase in uplands.
[643] The NSFMFM and Clearwater Band expressed concern that the removal of peatland
would result in a drier environment and warmer water temperatures due to the loss of the cooling
effect of slowly thawing peat. The NSFMFM and Clearwater Band believed that warmer water
would have an adverse effect on aquatic life.
Analysis and Findings
[644] The Panel notes that wetlands are the dominant landcover type in the LSA, that a large
proportion of the wetlands are peatlands (85 per cent), and that the Project will affect 91 per cent
of wetlands in the LSA. The Panel is aware that there is currently little evidence that peatlands
can be successfully reclaimed.
[645] The Panel makes particular note of the loss of the lenticular fen in the northeast corner of
the LSA given its high biodiversity value and its uniqueness in the RSA. The Panel accepts that
Shell has explored means to mitigate dewatering of the lenticular fen, but it also understands that
work may be ongoing elsewhere in the oil sands region may offer potential alternative mitigation
measures. The Panel believes that Shell should continue to explore these options.
[646] The Panel recognizes the concerns of interested parties about the irreversible loss of
peatlands and the lenticular fen, given the essential ecosystem services provided by these
habitats.
[647] The Panel believes that the clearing of the Project area will result in substantial loss of
wetlands and particularly peatlands and this will result in a landscape shift from a predominantly
wet, lowlands-dominated ecosystem before disturbance to a drier, uplands-dominated ecosystem
after Project closure. The Panel notes that the lack of mitigation measures proposed by Shell that
have been shown to be effective and the inability to reclaim wetland habitats to their former
ecosystem function and biodiversity contribute significantly to this outcome. Particularly
concerning to the Panel is the complete and irreversible loss of the lenticular patterned fen, a
land-cover type found in the LSA and nowhere else in the RSA.
[648] The Panel also understands that wetlands provide habitat for a large number of species at
risk and migratory birds, and as such, the loss of wetlands will result in habitat loss for many of
these species, particularly the yellow rail, but also the horned grebe and rusty blackbird. The
Panel notes Shell’s assertion that habitat in the RSA will provide sufficient mitigation for
wildlife habitat loss in the LSA; however, the Panel does not believe that Shell has provided
evidence to support its view that habitat in the RSA is well below carrying capacity and will
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effectively mitigate the loss as discussed in the Effects on Wildlife and Their Habitat section.
Also, as discussed in the Methods Used to Assess Effects on Terrestrial Resources section, the
Panel notes that Shell’s projections of available wetlands in the RSA are subject to a fair degree
of uncertainty, and Shell’s determinations of significance for project effects are based on the
relative amount of wetlands and peatlands in the RSA, and involves a large dilution factor due to
the size of the RSA.
[649] The Panel acknowledges that Shell has committed to
•
reclaiming wetlands on depressional landscapes and areas surrounding closure drainage
features,
•
reclaiming wetlands according to the Guidelines for Wetland Establishment on Reclaimed
Oil Sands (CEMA 2007), and
•
continuing participation in peatland reclamation research on disturbed oil sands mining lands
and continuing reporting its progress in annual environmental performance reports.
[650] The Panel recommends that the Governments of Canada and Alberta ensure that Shell
meets its commitments related to reclamation of wetlands, continues to research peatland
reclamation strategies, and updates its reclamation plans accordingly.
[651] The Panel is also concerned that loss of peatlands may negatively affect species at risk,
and as outlined in the SARA-CEAA guide (EC and PCA 2010), the obligation to identify and
mitigate adverse effects on listed wildlife species is independent of the likely significance of the
adverse effects. The Panel is of the opinion that Shell has not proposed mitigative actions for
wetland habitat loss that will mitigate effects on SARA-listed species.
[652] Based on the criteria provided in the Agency’s guide, Determining Whether a Project is
Likely to Cause Significant Environmental Effects (November 1994), the Panel used the
following approach to determine the significance of project effects on wetland habitat in the
LSA:
•
The likelihood of the loss of wetlands in the LSA is likely—the Project footprint will be
cleared and post-reclamation landscape will not be the same as base case.
•
The magnitude will be high—given a 10 000 ha loss of wetlands, 85 per cent of which are
peatlands that cannot be reclaimed.
•
The geographic extent is regional—given that the lenticular fen in the LSA is the only one in
the RSA. Furthermore, the effects of drawdown as a result of the Project will extend beyond
the LSA, as will the potential effects on the greater ecosystem of the oil sands region, such as
increased forest fire risk and loss of wildlife habitat for species that range broadly throughout
the RSA.
•
The duration is long-term—given that the time frame for wetlands to return to their former
biodiversity and function is more than 80 years and peatland restoration has not been
demonstrated for oil sands projects.
•
The effects are largely irreversible—given that there is no evidence that peatlands can be
successfully reclaimed.
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•
The ecological context of the oil sands region where the Project is taking place has already
been adversely affected by human activities, and some wetlands are particularly fragile given
their inability to be reclaimed (e.g., lenticular fen). The Project footprint is immediately
adjacent to other existing and approved oil sands mines (e.g., Shell Muskeg River, Syncrude
Aurora North, and Imperial Kearl Lake).
[653] Given the aforementioned analysis, the loss of more than 20 per cent of the wetland
resource, the inability to reclaim peatlands, and the effects on species at risk and migratory birds
(as discussed in the Effects on Wildlife and Their Habitat section), the Panel finds a significant
adverse project effect on wetlands (namely peatlands) in the LSA.
[654] The Panel expects Shell to comply with the new Alberta wetland policy currently under
development and highlighted in LARP when finalized and implemented. The Panel understands
that this policy will include a variety of wetland management tools, such as an offset program
that seeks to counterbalance the loss of wetlands where adverse effects are unavoidable. The
Panel also recommends to ESRD that Shell be required to fully comply with the LARP
biodiversity management framework once complete.
[655] The Panel understands that few options are available for avoiding or minimizing the
adverse effects of clearing large areas to allow surface mining of bitumen. Minimizing adverse
effects may be difficult or impractical in the context of a large mine because it generally requires
sterilization of bitumen resources, or it may impose too many constraints that impact the
operation of the mine in a safe, efficient, and economical manner. However, the Panel is
concerned about the lack of mitigation shown to be effective for the loss of peatlands and
believes that without additional mitigation, significant adverse effects will occur.
[656] The Panel is also concerned about the lack of mitigation shown to be effective with
respect to species at risk, as wetlands are a biodiversity hotspot for species at risk. Under section
73 of SARA there is a requirement to mitigate any effects on species at risk and their habitat. The
Panel believes that well-chosen conservation offsets (or allowances) provide a potentially viable
mechanism for mitigating the Project’s effects on wetlands and species at risk without sterilizing
bitumen resources or adversely affecting mine operation. The Panel notes that conservation
offsets are the primary means by which Shell proposes to mitigate for adverse project effects on
fish habitat under the federal Fisheries Act.
[657] The Panel acknowledges Shell’s argument that the LARP and other regulations and
policies of the Government of Alberta do not currently mandate the use of conservation offsets in
the oil sands region. However, the use of conservation offsets is contemplated under division 4
of part 3 of Alberta Land Stewardship Act (ALSA), the biodiversity management framework
being developed under LARP, and the new wetlands policy being developed by the Government
of Alberta. The implementation dates for these initiatives is uncertain, although Alberta has
indicated in LARP that it will complete the biodiversity management framework by the end of
2013.
[658] The Panel notes that in addition to their use under the Fisheries Act, opportunities for the
consideration of conservation allowances may arise through other federal processes administered
under the MBCA, the SARA, the Canadian Wildlife Act (CWA), and CEAA, 2012 that could allow
EC to consider a proposal for conservation allowances as a means of mitigating residual
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environmental effects. The Panel is also aware that EC has established an Operational
Framework for Use of Conservation Allowances.
[659] The Panel recognizes that the use of conservation offsets is a complex issue and the
availability, location, effectiveness, and cost of offsets are all matters that need to be considered.
In the absence of specific direction from governments on when and where conservation offsets
are required, it is not surprising that project proponents are reluctant to commit to the use of
them. However, given that there are few options available for avoiding or minimizing the
adverse effects resulting from large surface mines, conservation offsets should be considered.
The Panel recommends that before other provincial and federal approvals are issued, the
Governments of Canada and Alberta cooperatively consider the need for conservation offsets to
address the likely significant adverse effects of the Project on wetlands and species at risk. In
considering the need for conservation offsets, Alberta and Canada should have regard for their
proposed environmental objectives for the Athabasca oil sands region and current and proposed
policy framework, including the proposed biodiversity management framework under the LARP,
Alberta’s proposed new wetlands policy, and EC’s Operational Framework for Use of
Conservation Allowances.
[660] The Panel expects Shell to continue researching potential peatland reclamation strategies.
[661] The Panel requires that Shell uses all necessary strategies, including watershed design,
landscape contouring, and succession and revegetation planning to ensure the specified areas
evolve into wetlands after closure.
[662] The Panel requires Shell to provide a report on the status of all stages of wetland
reclamation on Phase 1 and the Project as part of its annual closure and reclamation report. The
Panel also requires Shell to report any findings that makes or is aware of related to wetland
reclamation research on disturbed oil sands mine sites.
Cumulative Effects
Evidence
[663] According to Shell, wetlands make up the largest portion of land cover types in the RSA
(1 015 270 ha, almost 50 per cent). From PIC to application case, Shell said that it estimated that
126 531 ha (12 per cent) of wetlands will be lost or altered in the RSA before reclamation due to
direct and indirect effects. Shell estimated that 119 532 ha (12 per cent) of wetlands in the RSA
will be lost after reclamation.
[664] Shell predicted that from PIC to PDC, an estimated 185 872 ha (18 per cent) of wetlands
will be lost or altered in the RSA before reclamation. Shell also predicted that 123 298 ha (12 per
cent) will be lost after reclamation.
[665] Shell said that the effects of cumulative habitat loss on many species at risk and
migratory birds in the application case will have a high negative environmental consequence
when compared with the PIC. However, Shell maintained that wetlands, including peatlands, will
remain abundant in the RSA and wildlife that depend on wetlands will have extensive alternative
habitat available. Shell therefore concluded that the Project will not have significant adverse
cumulative effects on wetlands or peatlands in the RSA.
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[666] EC agreed with Shell that the effects of cumulative habitat loss on many species at risk
and migratory birds for the application case and PDC have a high negative environmental
consequence when compared with the PIC. EC stated that a number of studies and analyses,
including Shell’s cumulative effects analysis, have demonstrated high levels of existing and
potential future habitat loss and possible adverse effects on species at risk and migratory birds in
the region. EC stated that given that reclamation of peatland habitats is not currently possible in
the oil sands region, the end result will be permanent habitat loss for species that occupy
peatlands. EC indicated that the reclaimed landscape will shift from a lowland-dominated
ecosystem before development to an upland-dominated ecosystem after closure, resulting in a
shift in the wildlife community.
[667] EC stated that habitat loss has been identified as an important factor contributing to
population declines of many species at risk and migratory birds in the oil sands region. EC
cautioned that effects on wetland-dependent species such as the yellow rail may be permanent
given the limitations in reclaiming peatland habitat. EC stated that given the potential for
cumulative habitat loss in the RSA for several species at risk and migratory birds, efforts should
be made to implement EC’s full suite of mitigations for project effects on wetland habitats,
including avoiding, minimizing, and compensating for project effects. Specifically, in the event
that proposed measures cannot mitigate direct and indirect habitat loss for species at risk and
migratory birds, EC proposed that Shell should consider the use of conservation allowances.
[668] OSEC maintained that the cumulative effects of the Project on northeastern Alberta’s air,
land, and water systems exceed science-based limits or thresholds causing irreversible harm to
the region. In particular, OSEC stated that the Project will result in significant adverse
cumulative effects on wetlands. OSEC said that the application case on its own will likely result
in unacceptably high, adverse regional cumulative effects on wetlands, and hence should cause
the Panel to reject the Project. OSEC also advised that figures given by Shell for reclamation of
wetlands in the RSA (12 per cent at closure for the PIC to application case) appeared optimistic
given that biodiversity of reclaimed wetlands will not be as high as in the PIC and given that it
expected conditions to be drier.
[669] OSEC suggested that even if reclamation succeeds in reducing areal wetland loss, the
Panel should proceed with a realistic assumption that the biodiversity value of the landscape will
be significantly less given the sensitivity of wetland vegetation to high conductivity and ion
concentration of the salt, metals, and naphthenic acids present in the post-mining landscape.
OSEC also maintained that loss of wetlands will increase the incidence of forest fires and
thereby decrease average forest age. OSEC presented evidence from Rooney et al (2012) that
explained that by replacing peatlands primarily with forested uplands, a system will be created
that will be dominated by plants that accumulate much less carbon in the soil, thereby reducing
carbon sequestration capacity of the ecosystem.
[670] OSEC maintained that if the Project were approved, it was essential that conservation
offsets be required to ensure peatland resources are conserved elsewhere. OSEC identified a
Wetland – Policy Intent draft released by the Government of Alberta in October 2010 which
stated that the policy would promote avoidance of negative impacts on wetlands as the primary
and preferred response, minimization of negative impacts on wetlands where avoidance is not
possible, and as a last resort and where avoidance and minimization efforts are not feasible or
prove ineffective, compensation is required. OSEC proposed that the uncompensated loss of
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wetlands in the RSA associated with the application case is at odds with this policy direction and
the expectations of Albertans. OSEC stated that it believed that the Project was not in the public
interest due to the increased loss of wetlands associated with the Project and the direction of
Alberta’s draft wetland policy.
[671] ACFN said that the Project was just one of many projects that would lead to the
destruction and loss of natural wetlands in the region. ACFN emphasized that boreal wetlands
provide critical habitat for many important wildlife species and, consequently, that wetlands in
the oil sands region were indelibly linked to the traditional way of life. ACFN expressed
particular concern about the effects on fens in the MLWC located on the northeast border of the
Project given that First Nations people gather traditional plants in the wetlands for medicinal use.
ACFN also stated that the MLWC includes several environmentally significant features,
including the McClelland Lake Fen, McClelland Lake, and the McClelland Lake Sinkholes, and
that the Project would affect more than 2000 ha of a potential 2500 ha of adjacent fen wetlands.
ACFN said that Shell did not propose alternative mitigation to protect the wetland complex
despite efforts by other oil sands companies (e.g., FHEC) to reduce dewatering of the lenticular
fen. As such, ACFN stated that this Project would produce irreversible, adverse cumulative
environmental effects that threaten the ecological integrity of the MLWC.
Analysis and Findings
[672] The Panel acknowledges the evidence that cumulative effects on wetlands at both the
application case and PDC scenario could greatly limit available wetland habitat in the RSA. The
Panel recognizes that there is no evidence that peatlands can be reclaimed at this time, hence fens
and other peatlands will not be reclaimed after closure, resulting in irreversible changes to the
ecosystem in the RSA. The Panel acknowledges the position of interested parties that cumulative
effects of site clearing and groundwater drawdown of proposed projects will significantly change
soil salinity and hydrology, resulting in lowered biodiversity value of the landscape and potential
effects on forest fires and forest age. The Panel recognizes that projections of available wetland
habitat in the RSA are subject to uncertainty (±20 per cent), making it difficult to rely solely on
Shell’s predictions.
[673] The Panel notes that the 12 per cent loss of wetlands from the PIC to the application case
will remain at 12 per cent after reclamation, indicating no reclamation of these wetlands (i.e.,
peatlands). The Panel notes that the loss of wetlands from PIC to PDC is 18 per cent, but 12 per
cent after reclamation, indicating the potential for some reclamation of certain types of wetlands.
The Panel also recognizes that the PDC scenario post-reclamation is a rough estimate of far
future conditions.
[674] Of particular concern to the Panel is the loss of the 642-ha rare lenticular patterned fen in
the Project footprint, a habitat characterized by a high level of biodiversity and that is found
nowhere else in the RSA.
[675] While ACFN raised concerns about effects on the MLWC, the Panel notes that the
McClelland Lake Fen will not be affected directly or indirectly by the Project, although it may be
affected by other oil sands projects.
[676] The Panel understands that the greatest cumulative effects associated with the loss of
wetlands are likely to be loss of wildlife habitat for species at risk and migratory birds that are
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wetland dependent (discussed further in the Effects on Wildlife and Their Habitat section). In
particular, the Panel notes that the loss of wetland habitat may have considerable effects on the
SARA-listed yellow rail. According to the SARA Management Plan for yellow rail, the main
threat is habitat loss from development.
[677] The Panel acknowledges that Shell has said that there is ample wetland habitat in the
RSA. However, the Panel is of the opinion that Shell has not shown that the remaining wetland
habitat in the RSA will be sufficient for species at risk and migratory birds.
[678] The Panel recognizes the need to mitigate the loss of wetland habitat in the RSA
(especially peatlands). The Panel acknowledges the view of interested parties who said that
Shell’s mitigations for wetland habitat loss are insufficient and that conservation offsets should
be considered.
[679] The Panel notes that the Agency’s Cumulative Effects Practitioner’s Guide indicates that
regional effects usually cannot be adequately dealt with on a project-by-project review basis. To
properly address this type of cumulative effect, the Panel agrees that regional plans are required
that clearly establish regional thresholds of change against which the specific actions may be
compared. The Panel supports the work of the province in implementing the LARP and in
developing the proposed LARP biodiversity management framework and the wetlands policy as
discussed in the Regional Effects section.
[680] The Panel notes that the inability to reclaim peatlands and the lack of measures proposed
by Shell that are proven to be effective to mitigate effects on species at risk and migratory birds
further exacerbates the issue. In particular, the Panel is concerned about the loss of habitat for
wetland-dependent species at risk and migratory birds as a result of both the application case and
the PDC scenario.
[681] The Panel notes that compounding the issue is the level of uncertainty (±20 per cent) in
the amount of wetlands that will be lost in the RSA as a result of the application case and PDC
scenarios. The Panel believes that given the level of uncertainty around remaining wetlands, the
many uncertainties associated with potential future development projects and associated
reclamation plans, and the degree to which wetlands can be restored to PIC conditions, the
precautionary principle would suggest that actions need to be taken to mitigate or avoid the loss
of wetlands.
[682] Based on the criteria provided in the Agency’s guide, Determining Whether a Project is
Likely to Cause Significant Environmental Effects (November 1994), the Panel used the
following approach to determine the significance of cumulative effects on wetlands based on the
application case and the PDC:
•
The loss of wetlands in the RSA is likely—the Project footprint (along with numerous other
projects) will be cleared resulting in a permanent loss of peatlands given that current
evidence suggests that these cannot be reclaimed.
•
The magnitude will be high—given a loss of peatlands of 126 531 ha and 185 872 ha
(1265 km2 and 1859 km2) in the application case and PDC, respectively.
•
The geographic extent is regional—affecting the RSA.
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•
The duration is long-term—given that the timeframe to restore wetlands is more than 80
years and peatland restoration is still not demonstrated for oil sands projects.
•
The effects are largely irreversible—given that there is no evidence at this time to suggest
that peatlands can be reclaimed.
•
The ecological context of the oil sands region where the Project is taking place has already
been adversely affected by human activities, and is characterized by a wetland-dominant
landscape with unique vegetation communities that are particularly sensitive to development
(i.e., cannot be reclaimed).
[683] Given the aforementioned points, the overly large size of the RSA, the uncertainty around
Shell’s predictions, the lack of proposed mitigation measures shown to be effective for the loss
of peatlands, the resultant changes to the ecosystem, resulting in a landscape dominated by
upland ecosystems, and the cumulative effects on species at risk and migratory birds as discussed
in the Effects on Wildlife and Their Habitat section, the Panel finds significant adverse
cumulative effects on wetlands (namely peatlands) in the RSA. The Panel notes that although the
cumulative losses of 12 and 18 per cent for the application case and PDC, respectively, are below
the 20 per cent threshold used by the Panel to determine significance, the Panel emphasizes that
had Shell chosen a smaller RSA been chosen or had Shell included the amount of uncertainty
around Shell’s predictions as discussed in the Methods Used to Assess Effects on Terrestrial
Resources section, the amount of wetlands lost would have surpassed 20 per cent in the RSA.
[684] The Panel urges the Government of Alberta to fast track the development of the LARP
biodiversity management framework and the new Alberta wetlands policy to provide guidance
on thresholds for development in the oil sands region that will direct future development of the
Project and other developments.
EFFECTS ON OLD-GROWTH FORESTS
Project Effects
Evidence
[685] According to Shell, the total amount of old-growth forest that will be lost in the LSA is
390 ha, approximately 40 per cent of the resource, but only 0.1 per cent of old-growth forest in
the RSA. Shell said that given the very small percentage of old-growth to be cleared, the
Project's effects on old-growth forests will not be significant.
[686] OSEC stated that virtually the entire LSA will be destroyed during the Project duration,
resulting in the nearly complete loss of important vegetation, particularly old-growth forests.
OSEC said that Shell has not taken into account the increased susceptibility to forest fires in the
post-reclamation landscape, resulting in an underestimation of the loss of old-growth forest
potential. OSEC presented a journal article (Rooney et al 2012) that stated that the loss of
peatlands will mean a shift to a drier forest, and drier forests are more susceptible to fire,
impairing the establishment of old-growth forests.
[687] Shell said that the Project will support the return of old-growth in the future and that the
LSA will not necessarily be more prone to forest fires. Shell also said that if the climate becomes
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wetter as a result of climate change, the frequency of fire will likely decrease. Shell simulated
forest fire risk with model inputs used in the LARP, which it said represented the best available
knowledge. EC suggested that there is a fair amount of uncertainty about the effects of climate
change on precipitation and that it is not known whether the oil sands region will be warmer and
wetter, or warmer and drier.
[688] Shell provided mitigations for loss of old-growth forests that are based on forest
replanting and reclamation, which it estimated would take 100 or more years. ACFN provided
evidence that the vegetation communities that develop in reclamation sites are not comparable to
predisturbance communities. It gave an example from the Suncor site that after 20 years, groundcover composition in reclaimed areas was very different than it was in adjacent forest areas, and
native species were not commonly found. ACFN also noted that wildlife use was higher in
undisturbed areas than in reclaimed areas and that wildlife such as moose and furbearers did not
readily return to reclamation sites. ACFN concluded that in the boreal forest, the similarity
between reclamation sites and natural sites in terms of species composition and cover is very
low.
[689] OSEC put forward that Shell should be required to develop a biodiversity offset
mitigation strategy for old-growth forests at the same ratio that old-growth forests occurred on
the landscape before development.
[690] According to Shell, loss of old-growth forest in the LSA will reduce habitat availability
for some key old-growth-dependent species at risk such as the Canada warbler (loss of 64 per
cent of high-quality and 87 per cent of moderate-quality habitat in the LSA from base case to
application case; refer to the Effects on Wildlife and Their Habitat section), but stated that
existing old-growth forest in the RSA will provide ample habitat.
[691] EC stated that there has already been high habitat loss for some species, such as Canada
warbler, in the RSA, and thus there was no evidence that there would be surplus habitat within
the RSA to support the influx of additional birds. EC stated that the success of reclamation and
recolonization of reclaimed habitats by species at risk and many migratory birds is uncertain and,
for old-growth-dependent species, will take considerable time to achieve. EC said that Shell’s
post-reclamation upland vegetation community will be dominated by jackpine and black spruce
habitats, which have relatively low biodiversity potential (based on Shell’s analysis) and support
relatively few migratory bird species. As such, EC identified a suite of mitigation measures that
will avoid, minimize, and lessen effects of the Project on migratory birds and species at risk;
conservation offsets will be an option if other mitigation measures are considered to be
ineffective (refer to the Effects on Wildlife and Their Habitat section).
[692] EC, OSEC, and ACFN stated that even if species that rely on old-growth forests were
able to recolonize those areas after reclamation, there would be a considerable time lag of
essentially 100 years. ACFN described that mature lichen jackpine forests may take 60 years or
more to develop, and it did not know how long it would take lichen (a key food for caribou) to
develop, or for a blueberry and cranberry understory (for animals and people) to regrow. ACFN
concluded that despite the fact that Shell used 80 years as a benchmark for return of old-growth
forests, it would take longer than 125 years for old-growth forest to return. OSEC contended that
Shell had not provided mitigation for species that rely on habitat in the interim.
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Analysis and Findings
[693] The Panel notes that Shell’s mitigations for loss of old-growth forests are based on forest
replanting and reclamation. The Panel is also aware that interested parties believe that Shell’s
mitigation measures for the loss of old-growth habitat are insufficient and that conservation
offsets, in particular, should be considered. The Panel also recognizes that interested parties have
expressed serious concerns about the loss of old-growth forest in the Project area, particularly
given the length of time needed for reclamation to occur.
[694] The Panel notes that Shell’s mitigation measures have currently not been proven to
restore the complexity of old-growth forests and their associated biodiversity. The Panel has
further concerns given that the timeframe to reproduce old-growth forest ecosystems in the LSA
is over 100 years after closure, which results in a substantial time lag in habitat availability.
[695] The Panel recognizes that old-growth forests provide habitat for a number of species at
risk and many migratory birds, and that clearing of the LSA will result in localized habitat loss
for many of these species. The Panel notes that EC did not support Shell’s assertion that the
negative effects of old-growth habitat loss on wildlife would be minimized by old-growth habitat
availability in the RSA.
[696] Based on the criteria provided in the Agency’s guide, Determining Whether a Project is
Likely to Cause Significant Environmental Effects (November 1994), the Panel used the
following approach to determine the significance of project effects on old-growth forests in the
LSA:
a) The loss of old-growth forest in the LSA is likely—the Project footprint will be cleared and
390 ha of old-growth forest will be removed.
b) The magnitude will be low—given the overall size of the area lost (3.9 km2).
c) The geographic extent is local—given the size of the area, although the effects on wildlife
that have the LSA as part of their habitat may be regional.
d) The duration is long-term—given that the time frame for old-growth forests to return to their
former function and biodiversity (at least 100 years) is greater than Shell’s 80-year closure
timeframe.
e) The effects are potentially reversible in the far future. It may be possible to restore
biodiversity in the long term (100 years post-reclamation); however, the Panel notes that
there is still no evidence in the oil sands region that old-growth forests can be restored to
their former biodiversity and complexity.
f) The ecological context of the oil sands region where the Project is taking place has already
been adversely affected by human activities, and old-growth forests may be particularly
fragile given the time required for restoration. The Project footprint is immediately adjacent
to other existing and approved oil sands mines.
[697] Given the aforementioned points, the uncertainty of proposed reclamation as mitigation,
the time lag to restore old-growth forests to base case conditions, and effects on species at risk
and migratory birds described in this report (refer to the Effects on Wildlife and Their Habitat
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section), the Panel finds project effects on old-growth forest in the LSA are adverse, but not
likely to be significant based on the low magnitude of old-growth forest to be cleared.
[698] While the Panel has determined that the loss of old-growth in the LSA is adverse, but
likely not significant, the Panel is concerned about any habitat loss for species at risk and
migratory birds that occur in the Project area, many of which prefer old-growth habitat
(woodland caribou, common nighthawk, Canada warbler, and black-throated green warbler). The
Panel also notes that section 73 of SARA requires mitigation of any effects to species at risk.
[699] As discussed more extensively in the Effects on Wetlands section, although LARP and
other regulations and policies of the Government of Alberta do not currently mandate the use of
conservation offsets in the oil sands region, given that few options are available for avoiding or
minimizing the adverse effects of large surface mines, the use of conservation offsets may be
necessary. The MBCA, the SARA, the CWA, and CEAA, 2012 all provide opportunities for EC to
consider a proposal for conservation allowances as a means of mitigating residual environmental
effects.
[700] The Panel believes that its recommendation that the Governments of Canada and Alberta
consider conservation offsets to help mitigate project effects on wetlands would also be
appropriate for helping to mitigate project effects on old-growth forests if Alberta or Canada
believed that additional mitigation for effects to old-growth-dependant species at risk and
migratory birds was necessary.
[701] The Panel notes that Shell will be subject to guidelines set out in the future LARP
biodiversity management framework. The Panel recommends that the Government of Alberta
work toward timely completion of the LARP biodiversity management framework and that it
include thresholds for old-growth forest loss to guide the development of future oil sands
projects.
Cumulative Effects
Evidence
[702] Shell estimated old-growth forest potential in the RSA at 356 582 ha in the PIC
decreasing by 60 242 ha (17 per cent of resource in the RSA) in the application case. Shell
predicted an additional loss of 22 061 ha of old-growth forest in the RSA from application case
to PDC (total decrease of 23 per cent).
[703] OSEC stated that the application case on its own would likely result in unacceptably high
adverse cumulative effects on old-growth forests in the RSA. OSEC also indicated that the
significant adverse effects are further increased in the PDC.
[704] Shell’s EIA predicted that a loss of old-growth boreal forest will reduce habitat required
by old-growth specialist species at risk, including Canada warbler (loss of 61 per cent high
quality habitat from PDC to PIC), woodland caribou (loss of 93 per cent moderate quality habitat
from PDC to PIC), and many other boreal migratory birds. OSEC maintained that this loss of
old-growth forest will exacerbate the already significant regionally adverse effects on the Canada
warbler.
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[705] Shell simulated forest fire risk in the RSA based on a model used for the LARP, which
Shell believed provided the best available knowledge. ACFN claimed that Shell may have used
the wrong temporal scale in its predictions for the fire cycle in the RSA (80 years) given that
recent evidence from pollen records suggests that the regional mean fire interval may be as little
as 34 years. As a result, ACFN contended that Shell may have overestimated the amount of oldgrowth currently in the RSA.
[706] OSEC indicated that Shell had underestimated the loss of old-growth forest potential in
the RSA because it had not taken into account the increased susceptibility to fire in the postreclamation landscape. OSEC presented evidence that groundwater drawdown and loss of
peatlands in the RSA will create a drier ecosystem that is more vulnerable to forest fires and
indicated that Shell did not consider this additional risk in its assessment. EC agreed that the
RSA may be at a greater risk of forest fires. OSEC maintained that the Panel should not approve
the Project because of significant adverse cumulative effects on old-growth forest both directly
from clearing of the Project footprint and indirectly through an increase in forest fires resulting
from the loss of wetlands and a drier climate.
[707] Shell responded that the 80-year fire cycle it used was a conservative average fire cycle
intended to account for a wide range of possible old-growth forest amounts within a natural
range of variation in the Alberta-Pacific Forest Industries Inc. forest management area. Shell
further argued that some global climate change models predicted that the climate for this region
will be warmer and wetter in the future, thereby negating any increased forest fire risk.
[708] EC suggested that there was inherent uncertainty in climate models and that it was
difficult to predict with confidence that a wetter environment will prevail, particularly in the
summer months.
Analysis and Findings
[709] The Panel understands that projections of available old-growth habitat in the RSA are
subject to a degree of uncertainty given the use of Landsat imagery as discussed in the Methods
Used to Assess Effects on Terrestrial Resources section. The Panel is also aware that Shell did
not take into account the increased risk of forest fires resulting from a drier upland landscape in
its habitat modelling. The Panel acknowledges that changes in the hydrology of the region as a
result of reclamation and climate change may affect the risk of forest fires, thereby increasing the
uncertainty in Shell’s predictions of old-growth habitat available in the RSA.
[710] The Panel notes that Shell predicted old-growth forest would decrease by 17 per cent in
the RSA from the PIC to the application case. The Panel believes that although the effects of
clearing of old-growth forest are theoretically reversible through carefully managed reclamation,
there is currently no evidence in the oil sands region that the complexity and biodiversity of oldgrowth forests can be restored to preindustrial conditions. The Panel further recognizes that the
extended time lag for reclamation of old-growth forests may preclude recolonization by
preindustrial flora and fauna as some of the species that are currently declining may be extirpated
before habitat can be restored.
[711] The Panel recognizes that old-growth forest habitat has high biodiversity value and that
the loss of this habitat in the RSA will negatively affect wildlife that are old-growth forest
specialists, many of which are species at risk (e.g., Canada warbler and woodland caribou). The
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Panel recognizes that unproven mitigation measures for alleviating effects on old-growth forests
and the species at risk and migratory birds that inhabit them exacerbates the issue, as does the
time lag to recovery. The Panel acknowledges that there are not many options for mitigating oldgrowth forest loss to oil sands mine developments that do not entail the sterilization of bitumen.
[712] The Panel notes that Shell’s EIA is one of the few EIAs in the oil sands region that has
incorporated the effects of natural disturbance (i.e., fire).
[713] The Panel believes that a precautionary approach to the determination of significance of
effects would be to consider Shell’s predicted old-growth forest availability in the RSA as a very
rough guide to what might actually be available, while understanding that the amount of habitat
lost could be greater than that predicted by Shell.
[714] Based on the criteria provided in the Agency’s guide, Determining Whether a Project is
Likely to Cause Significant Environmental Effects (November 1994), the Panel used the
following approach to determine the significance of cumulative effects on loss of old-growth
forest based on the application case and the PDC:
a) The loss of old-growth forest in the RSA is likely—the Project footprint (along with
numerous other projects) will be cleared, resulting in a loss of old-growth forest habitat.
b) The magnitude will be high—given that losses of old-growth forest will be in the tens of
thousands of ha (e.g., loss of 60 242 ha and 82 303 ha in the application case and PDC,
respectively).
c) The geographic extent is regional—affecting old-growth in the RSA.
d) The duration is long-term—given that the timeframe to restore old-growth forest is more
than 100 years.
e) The effects are potentially reversible in the long term. There is currently no evidence to
show that old-growth forests can be restored to preindustrial levels of complexity and
biodiversity in the oil sands region in the timeframe of the Project (40 years of operations
plus 100 years). Furthermore, some species that rely on old-growth habitat are already
declining to extirpation (e.g., woodland caribou).
f) The ecological context of the oil sands region where the Project is taking place has already
been adversely affected by human activities and as such, old-growth forest has already been
affected in the oil sands region (e.g., Shell reports a 16 per cent loss of old-growth in the
RSA at the base case [57 009 ha]).
[715] Given this analysis and recognizing the uncertainty regarding the effectiveness of
proposed mitigation measures, the overly large size of the RSA, the amount of uncertainty in
Shell’s predictions, and the effects on species at risk and migratory birds that are old-growth
specialists, many of which are already at risk, the Panel finds significant adverse cumulative
effects on old-growth forest in the RSA as a result of the application case and the PDC when
compared with the PIC. Although the percentage of old-growth lost is predicted to be less than
20 per cent for the application case, the Panel emphasizes that had Shell chosen a smaller RSA or
had Shell included the amount of uncertainty in Shell’s predictions, the amount of old-growth
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forest that would be lost would likely have surpassed 20 per cent in the RSA. The Panel further
notes a loss of 23 per cent is predicted for the PDC, which surpasses the 20 per cent threshold.
[716] Given the cumulative adverse effects predicted for old-growth forests in the RSA under
the application case and PDC and the importance of old-growth forest for some species at risk,
the Panel urges Alberta to complete and implement the proposed biodiversity management
framework under LARP as soon as possible. The Panel recommends to the Government of
Alberta that to the extent possible the biodiversity management framework should provide clear
direction on the management objectives for old-growth forests in the Lower Athabasca planning
region, identify acceptable levels of disturbance (thresholds) for different areas of the region that
reflect the permitted land uses and management objectives for those areas, and provide specific
direction on the role of conservation offsets within the planning region.
[717] The Panel’s recommendation regarding the consideration of the need for conservation
offsets by Canada and Alberta as discussed in other sections of this report would also help
mitigate effects on old-growth forests. The effects on old-growth forests should be considered in
any determination of offsets.
[718] The Panel recommends that the Governments of Canada and Alberta ensure that the best
available research and development is used to improve reclamation of old-growth forest habitat
in the oil sands region in order to provide this habitat as soon as possible.
EFFECTS ON TRADITIONAL PLANT POTENTIAL AREAS
Project Effects
Evidence
[719] Shell stated that it relied on several studies from past projects and on TLU studies that
were available in 2007 to identify traditional plants used in the oil sands region. Shell explained
that it drew from these reports a list of the relevant species in the oil sands region and determined
their uses and use ranking. Shell explained that most of the information in these reports was
relevant to Fort McKay, and it assumed that other Aboriginal groups had similar uses.
[720] Shell stated that it had not completed any field surveys specifically to locate and
document the abundance and distribution of traditional plant species within the LSA. Shell stated
that it did record occurrences of traditional plants when noted in the field.
[721] Shell stated that it established a traditional plant species score for the high-, moderate-,
and low-ranked ecosite phases and wetland types within the LSA and RSA using the list of
traditional plants and their abundance in each ecosite phase and wetland type. Shell provided
maps of the high, moderate, and low traditional plant potential in the LSA and RSA. Shell
explained that it obtained the ecosite phases and wetland types from the AVI for the LSA and
from remote sensing/Landsat in the RSA. Shell explained that it did not assess the effects of the
Project on the abundance of traditional plants directly but assessed the effects of the Project on
areas that had the potential to support traditional plants.
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[722] Shell stated that during construction and operations, the Project will alter 4584 ha (77 per
cent) of the high traditional use plant potential in the LSA, which will have a negative, moderate
environmental consequence. It said that the Project will also alter 8481 ha (92 per cent) of the
moderate traditional plant potential and 10 129 ha (70 per cent) of the low traditional use plant
potential.
[723] Shell stated that in the RSA, due to direct and indirect effects, the Project will alter
5749 ha of the high traditional plant potential, 9623 ha of the moderate traditional plant potential,
and 10 591 ha of the low traditional plant potential. Shell noted that the amount of disturbance
associated with each category of traditional plant potential represented less than 1 per cent of the
RSA. Shell determined that because less than 1 per cent of the high and medium rare plant
potential in the RSA would be affected by the Project, the effects were not significant. The Panel
refers the reader to the Effects on Biodiversity section for more information.
[724] At closure, from the base case to the application case in the LSA, Shell predicted that the
high traditional use plant potential areas would decrease by 7 per cent (424 ha) and the moderate
traditional use plant potential areas by 52 per cent (4733 ha). Shell stated that the low traditional
use plant potential areas will increase by 36 per cent. Shell indicated that its evaluation of
residual disturbance takes into consideration reclamation measures.
[725] Shell indicated that when possible, the terrestrial portion of the land will be reclaimed by
direct placement of subsoil and topsoil on a newly-prepared landscape. Shell stated that after the
seeds in the topsoil have germinated and established, more trees and shrubs may be planted in
order to achieve the ecosites described in Shell's reclamation and closure plan. The Panel refers
the reader to the Reclamation section for more information.
[726] Shell indicated that it designed its planting prescriptions for reclamation to provide a
range of ecosite phases that should support a variety of traditional land end uses. Shell indicated
that the planting prescriptions included species that are highly used by First Nations, such as
blueberry, cranberry, rose, bearberry, white spruce, black spruce, and poplar. Shell planned to
use other species in the planting prescriptions to provide habitat for wildlife species identified in
traditional ecological knowledge (TEK) and TLU studies.
[727] ACFN stated that the number of plant species that the revised reclamation guidelines
(CEMA 2009) recommended to indicate revegetation success was two orders of magnitude fewer
than the number of plant species currently found in the LSA. ACFN expressed concern that, as a
consequence, far fewer traditional plants will be in reclamation sites than will be found in native
ecosites. ACFN said that it was also concerned that wetlands will be replaced by uplands with
lower biodiversity.
[728] ACFN stated that fewer plants will be in Shell’s reclamation sites than currently exist and
that Shell did not provide information on how it intends to re-establish the predisturbance
diversity of plant species or how it will enhance diversity in areas where direct soil placement is
not possible. ACFN stated that with few exceptions, there was no ingress of species from
adjacent native forests onto reclamation sites and there was a risk that invasive species may
colonize the reclaimed area.
[729] ACFN produced evidence of gathering for subsistence and medicinal use in the LSA and
stated that these gathering activities will be directly affected by the Project.
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[730] The NSFMFM stated that it gathers a variety of plants in the Project area, including
blueberries and low-bush cranberries. The NSFMFM and Clearwater Band also had concerns
about the potential loss in the Project area of a fungus that grows on the diamond willow. It said
that the fungus is considered sacred and used for ceremonial purposes.
[731] FMMFN #468 had concerns about certain plant species that would be potentially affected
by the Project, including a wide selection of berries and traditional medicines such as roots, bark,
and sweetgrass.
[732] Some Aboriginal groups stated that the areas south of McClelland Lake and around Kearl
Lake are unique because they supply some valued plants for food and medicinal uses and are
easy to access.
[733] ACFN stated that Aboriginal people gather traditional plants in the wetlands for
medicinal and subsistence uses and are concerned that the wetlands, including the muskeg,
cannot be reclaimed.
Analysis and Findings
[734] The Panel notes that Shell assessed the effects of the Project on traditional plant potential,
not on the abundance of traditional plants that are found and used in the Project area. Shell did
not conduct any specific field surveys on the distribution and abundance of traditional plants in
the LSA and when it recorded occurrences, it did not include these in the EIA. The Panel finds
that it is unclear what species and abundance of traditional plants occur in the LSA.
[735] The Panel notes that most of the high and moderate traditional plant potential in the LSA
will be lost during the construction and operation phase of the Project, and that after closure and
reclamation the high and moderate traditional use plant potential will decrease in the LSA by 7
and 52 per cent, respectively.
[736] The Panel notes that the Aboriginal groups currently gather a variety of traditional plants
in the LSA for subsistence, medicinal, and spiritual purposes. The Panel notes that the Project
footprint shares borders with several other large mines and that none of these areas will be
available for harvesting of traditional plants for many years. As a consequence, the Aboriginal
people currently using the area would be affected because the traditional plants will not be
available in the Project area or in its vicinity and they would therefore have to travel further to
find equivalent resources. The Panel notes that most Project reclamation will take place between
2045 and 2060, and it will take years to decades after closure to re-establishment traditional
plants. The loss for several decades of areas used for traditional plant harvesting has implications
for the transfer of traditional knowledge between generations.
[737] The Panel acknowledges that some wetlands, including peatland, will not be reclaimed
and that several traditional plants are strongly associated with these wetlands. The Panel
therefore concludes that the reclaimed LSA is unlikely to provide the quantity and diversity of
traditional plants that currently exists.
[738] Based on the criteria provided in the Agency’s guide, Determining Whether a Project is
Likely to Cause Significant Environmental Effects (November 1994), the Panel used the
following approach to determine the significance of effects on traditional plant potential areas:
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•
The loss of traditional plants in the LSA is likely—the Project footprint will be cleared.
•
The magnitude will be major—given that Shell predicted that 4584 ha, 8481 ha, and
10 129 ha of the high, moderate, and low traditional plant potential areas, respectively, will
be lost during the operation of the mine.
•
The geographic extent is local—given the size of the LSA.
•
The duration is long-term—most of the reclamation for the Project will take place between
2045 and 2060, and it will take years to decades for some species of traditional plants to reestablish after closure.
•
Some effects may be irreversible—given that wetlands provide for several species of
traditional plants and many wetlands cannot be reclaimed; the reclaimed areas will likely be
of lower biodiversity compared with the baseline or PIC; assuming successful reclamation,
the high and moderate traditional use plant potential will still decrease in the LSA by 7 and
52 per cent, respectively, compared with the base case.
[739] In its evaluation of significance, the Panel has taken into consideration that the Project
footprint shares borders or is close to several other large mines and that none of these areas will
be available for harvesting traditional plants for many years and, as a consequence, the
Aboriginal persons gathering plants in the area would have to travel further to find equivalent
resources.
[740] The Panel notes that wetlands are generally considered areas of moderate traditional plant
potential and that 52 per cent of the moderate plant potential after reclamation arises is lost
because of the difficulty reclaiming wetlands. The Panel has also taken into consideration the
greater proportion of upland in the reclaimed footprint and that several plants of interest to
Aboriginal people are strongly associated with wetlands.
[741] Given the aforementioned points, the fact that a significant portion of quality traditional
plant potential areas in the LSA will be lost for several generations and that the reclamation
process will reinstate less than 50 per cent of the areas of moderate plant potential, the Panel
finds that the Project will have significant adverse effects on traditional plant potential.
[742] The Panel recommends that before reclaiming any portion of the disturbed area, the
Governments of Canada and Alberta ensure that Shell produce, in collaboration with the
Aboriginal groups, a reclamation plan with the goal of optimizing the number and quality of
traditional plants as well as the species distribution.
[743] The Panel recommends that before construction, the Governments of Canada and Alberta
ensure that Shell provides interested Aboriginal groups with full access to the Project lands to
allow any valued traditional plants to be collected.
Cumulative effects
Evidence
[744] Shell stated that in the base case, 23 per cent (126 817 ha) of the high and 9 per cent
(107 410 ha) of the moderate traditional plant potential areas within the RSA have already been
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lost compared with the PIC. Shell further explained that in the application case, 24 per cent
(132 567 ha) of the high and 10 per cent (117 033 ha) of the moderate traditional plant potential
areas within the RSA will be disturbed, and after closure and reclamation there will be a loss of
23 per cent (128 270 ha) of the high and 9 per cent (105 879 ha) of the moderate traditional plant
potential within the RSA.
[745] Shell predicted that there will be a loss of 32 per cent (176 716 ha) of the high and 14 per
cent of the moderate (170 205) traditional plant potential areas in the RSA for the PDC compared
with the PIC.
[746] Shell predicted that in the far future, by 2165, high traditional use plant potential habitat
will increase in the RSA by 1 per cent over the PIC and moderate traditional use plant potential
will decrease by 6 per cent. Shell explained that the predicted increase in high traditional use
plant potential is a result of nontreed wetland reclamation and natural wetland regeneration.
[747] Shell provided information on the effects of the Project on culturally significant
ecosystems as defined and used by Fort McKay. Shell stated that areas of low, moderate, and
intense use for traditional plant harvesting in the culturally significant ecosystems experienced an
increase in disturbance of 321 280 ha (23 per cent), 122 586 ha (31 per cent), and 35 268 ha (47
per cent), respectively, from the PIC to the base case.
[748] Shell stated that in the application case, areas of low, moderate, and intense use for
traditional plant harvesting in Fort McKay’s culturally sensitive ecosystems would experience
disturbance levels of 330 620 ha (24 per cent), 135 286 ha (34 per cent), and 35 268 ha (47 per
cent), respectively. Shell also stated that disturbance in the low, moderate, and intense use areas
would be of 391 989 ha (28 per cent), 168 537 ha (42 per cent), and 41 498 ha (55 per cent),
respectively, from the PIC to the PDC.
[749] Fort McKay stated that Shell’s traditional plant potential ranking system criteria may not
coincide with the experiences of community members harvesting traditional plants and thus may
not accurately describe the values of some areas. For example, Fort McKay stated that plants that
have low frequency and percentage cover in the landscape may be of significant value to the
community and get a low traditional use potential ranking despite their high significance to the
community.
[750] Fort McKay selected a forty township study area (FTSA) approximately centred on the
hamlet of Fort McKay to assess the effects of both PRM and the Project as well as the
cumulative effects of the oil sands development. Fort McKay uses the FTSA as a regional-scale
study area in its Fort McKay Specific Assessment. Fort McKay explained that Shell’s LSA for
both PRM and the Project represents about 13.3 per cent of the land within the FTSA.
[751] Fort McKay stated that seven traditional use berry sites will be lost because of the Project
and other planned developments. Fort McKay explained that the loss of 62 berry-producing sites
in the FTSA represents a cumulative loss of 54 per cent of the total sites since pre-development.
[752] Fort McKay expressed concern that disturbance of wetlands within the FTSA will affect
the availability of traditional-use species or groups of plants usually found in wetlands. Fort
McKay stated that about 18 per cent of the wetlands in the FTSA in the base case will be lost in
the PDC and an additional 14 per cent of the uplands will be disturbed. Fort McKay stated that
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the cumulative effects of all projects developed since the late 1990s and of the Project and other
planned developments results in about a 40 per cent decrease in the area occupied by wetlands
available for the gathering of traditional use plants that are strongly associated with wetlands.
[753] All of the Aboriginal groups expressed concern that the quality and quantity of traditional
plants were declining in the oil sands region and in the Project area because of the existing
cumulative effects of oil sands related development. All of the Aboriginal groups stated that they
were concerned about contamination of traditional plants and that these concerns result in
avoidance of use. They stated that the Project will add to the existing adverse cumulative effects
on traditional plants. These concerns are discussed more fully in the Effects on Aboriginal
Traditional Land Use, Rights, and Culture section.
Analysis and Findings
[754] The Panel notes that according to Shell’s assessment, 23 and 9 per cent of the high and
moderate traditional plant potential, respectively, is already lost in the RSA in the base case. The
Panel further notes that Shell predicted losses of 24 per cent and 10 per cent for high and
moderate traditional plant potential, respectively, in the RSA for the application case and losses
of 32 and 14 per cent in the high and moderate traditional plant potential areas, respectively, in
the RSA for the PDC.
[755] The Panel notes that in the far future, according to Shell, the high traditional plant
potential areas will increase by 1 per cent in the RSA over the PIC while moderate plant
potential will decrease by 6 per cent. The Panel notes that these predictions are based on the
assumption that the wetlands will be successfully reclaimed and equivalent land capability will
be restored. The Panel believes that Shell may have overestimated the potential area in the RSA
that can be reclaimed to land capability equivalent to preindustrial conditions, particularly given
that the methods for reclaiming peatlands are unproven and the substantial time lags for
reclaiming old-growth forests. The Panel believes that Shell did not provide a sound rationale for
its prediction of traditional plant potential in the far future given that the success of oil sands
operators in reclaiming traditional plants is unknown.
[756] The Panel notes that according to Shell the low-, moderate-, and high-use culturally
sensitive ecosystems for traditional plants identified by Fort McKay were already disturbed by
23, 31, and 47 per cent, respectively, in the base case. The Panel believes this indicates that oil
sands related developments in combination with other activities such as forestry and forest fires
have already resulted in adverse effects of high magnitude within these areas of traditional plant
gathering. The Panel further notes that Shell stated that the losses of low-, moderate-, and highuse culturally sensitive ecosystems for traditional plants in these areas would be of 24, 34, and 47
per cent from the PIC to the application case and 28, 42, and 55 per cent from the PIC to the
PDC. The Panel believes this level of disturbance is significant and notes that the areas most
affected are the areas of high traditional use.
[757] Based on the criteria in the Agency’s guide, Determining Whether a Project is Likely to
Cause Significant Environmental Effects (November 1994), the Panel used the following
approach to determine the significance of effects on traditional plant potential:
•
The loss of traditional plant potential areas in the RSA is likely.
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•
The magnitude will be major—there have already been significant losses of high and
moderate traditional plant potential areas in the RSA, and additional losses are predicted in
the application case and PDC compared with the PIC.
•
The geographic extent is regional—given that the effects occur in the RSA.
•
The duration is long-term—most reclamation for the Project will take place between 2045
and 2060, and it will take years to decades after closure to re-establish some traditional
plants.
•
Some effects may be irreversible—given that wetlands provide for several species of
traditional plants and many wetlands cannot be reclaimed; the reclaimed areas will likely be
of lower biodiversity compared with the base case or PIC. The Panel notes that Shell
indicated that after closure and reclamation there will still be a loss of 23 per cent of high and
9 per cent of moderate traditional plant potential for the application case. The Panel also
notes that long after closure and reclamation, the irreversible effects on traditional plant
potential areas in the LSA will continue to contribute to the adverse cumulative effects on
traditional plant potential areas at the regional scale.
[758] The Panel notes that in the base case, the culturally significant ecosystems for traditional
plants and the areas of high and moderate traditional plant potential in the RSA are already
disturbed, and that according to Shell, the application case has a relatively small contribution to
the overall disturbance. The Panel notes that the percentage of disturbance does not change
significantly in the application case, suggesting that the incremental loss of traditional plants
caused by the Project is small at a regional scale. However, the Panel notes that the large size of
the RSA compared with the footprint of the Project helps limit the percentage of losses at a
regional scale. The Panel further notes that the predictions for the PDC further add to the overall
disturbance in the RSA and believes that the incremental effects that result from each project in
the RSA can add up to significant adverse cumulative effects at the regional scale.
[759] The Panel believes that given the significant amounts of disturbance predicted for areas
of high and moderate traditional plant potential, the long time lag between disturbance and
reclamation, and the uncertainty associated with wetlands reclamation, the cumulative effects on
traditional plants in the RSA will be adverse and significant. More discussion on how this affects
traditional land use is in the Effects on Aboriginal Traditional Land Use, Rights, and Culture
section.
[760] The Panel recommends that the Government of Alberta consider the need to identify and
protect areas of significant traditional plant potential as part of the development of the
biodiversity management framework under LARP. The Panel recommends that the Government
of Alberta involve Aboriginal groups in the development of the LARP biodiversity management
framework, particularly sections that are relevant to the protection of traditional plants.
[761] The Panel recommends that if conservation offsets are required by the Governments of
Alberta and Canada to mitigate project effects to wetlands or old-growth forests, that Alberta and
Canada also consider involving Aboriginal groups in site selection to ensure, where feasible,
these areas are also accessible and appropriate for the gathering of valued traditional plants.
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EFFECTS ON WILDLIFE AND THEIR HABITAT
General
Project Effects
Evidence
[762] Shell arrived at conclusions about significance to wildlife species using professional
judgment based on the analysis of effects on abundance, habitat, and movement of all species at
risk and KIRs. Shell concluded that the overall effects of the Project on wildlife are not likely to
be significant.
[763] Shell predicted that activities associated with direct mortality due to site clearing for the
Project would have a negligible environmental consequence for all wildlife species at risk during
operations. Shell also stated that direct mortality due to site clearing was well understood but
lacked quantification, thus it rated confidence in this prediction as moderate.
[764] Shell suggested that the magnitude of the effects of the Project on overall wildlife
abundance will be negligible on the LSA scale after reclamation.
[765] Shell said that during construction and operation the Project will have negative and
negligible effects on wildlife movement at the LSA and RSA scales, ranging from negligible for
avian species to high for terrestrial mammals. It expected wildlife movement around the Project
footprint to be sufficient to maintain genetic connectivity in the RSA. It maintained that this will
be verified through monitoring of presence, relative abundance, and distribution of wildlife in the
Project area, and through Shell’s involvement in regional monitoring initiatives, such as the
Wildlife Habitat Effectiveness and Corridor Program Technical Committee under the CONRAD.
[766] ACFN was concerned that the Project was going to remove a known and regionally
valuable wildlife movement corridor along the Muskeg River and that mitigations to protect that
corridor will be ineffective. ACFN was also concerned that Shell had not provided evidence that
genetic connectivity will be ensured in the Project area. OSEC said that existing fragmentation of
habitat in the RSA from oil and gas exploration will contribute to overall ineffectiveness of
movement corridors.
[767] Shell stated that the environmental consequences of wildlife habitat loss during
construction and operations were high at the LSA scale for all affected species and that it also
expected the Project to result in indirect habitat loss through sensory disturbance and surficial
aquifer drawdown. Shell reported that all KIRs and species at risk had more than 60 per cent
high-quality habitat loss during construction and operations (refer to appendices 10a and 10b for
complete list of KIRs and species at risk).
[768] Shell predicted substantial habitat loss for several species at risk that rely on old-growth
and wetland habitats in the LSA. Consequently, Shell concluded that habitat loss as a result of
the Project will have a high environmental consequence for several species that rely on these
habitats (e.g., yellow rail, horned grebe, rusty blackbird, and Canada warbler). However, Shell
also asserted that the best available information suggests that abundance of these species is not
limited by habitat in northeast Alberta. EC did not dispute Shell’s conclusion that the Project is
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unlikely to cause a significant adverse effect on habitat availability for species at risk and the
black-throated green warbler at the scale of the RSA but expressed concern about Shell’s use of
the RSA to determine significance of project effects given the size of the RSA (refer to the
Methods Used to Assess Effects on Terrestrial Resources section). EC also said that the
effectiveness of using remaining habitat in the RSA to alleviate the effects of the loss of LSA
habitat was uncertain and cumulative effects from other proposed projects reduce this availability
even further.
[769] Shell said that its main mitigation measure for wildlife habitat loss, including species at
risk and migratory birds, was habitat reclamation. According to Shell’s predictions, 8 out of 10
KIRs and species at risk (common nighthawk, horned grebe, olive-sided flycatcher, rusty
blackbird, short-eared owl, western toad, wood bison, and yellow rail) had high or moderate
habitat loss of more than 20 per cent in the LSA after reclamation. However, Shell argued that
habitat loss from the Project is not likely to affect the viability of the regional populations of any
wildlife species after reclamation. Shell also said that some species (e.g., black bear, Canada
lynx, beaver, and the Canada warbler), will benefit from the large increases in productive forests
and associated terrestrial uplands that develop after reclamation.
[770] Interested parties said that using reclamation of LSA lands as a mitigation measure for
wildlife habitat loss was insufficient, particularly for wetlands and old-growth forests. According
to OSEC, the best reclaimed wetlands on process-affected oil sands mining sites are salt marshes
that are low in species biodiversity compared with the prevailing pre-disturbance freshwater peat
wetlands. ACFN stated that Shell’s claims about the return of wildlife to a reclaimed area must
be supported by data that demonstrate that this has occurred elsewhere, and any claim of a
successful re-establishment of habitat and return of wildlife must be tested in the future. ACFN
further stated that reclamation will not lead to the return of the wildlife KIRs within less than 20
years as stated by Shell, resulting in long-term duration of the impact.
[771] EC recognized that there are limited opportunities to directly avoid effects on species at
risk and migratory bird habitat in the Project area given the location of oil sands deposits. As
such, it recommended additional mitigation and suggested that for components of the Project not
within the mineable footprint (e.g., the Redclay Compensation Lake and Kearl Lake levee), Shell
should evaluate all options to avoid or minimize effects on species at risk and migratory bird
habitat.
[772] EC said that Shell had identified residual (i.e., post-mitigation) effects that have high
negative environmental consequence at the local scale for several species at closure, including
species at risk and migratory birds. EC recommended that these local-scale effects be mitigated,
based in part on the requirements of s.79(2) of SARA, which states that if a project is carried out,
measures must be taken to avoid or lessen adverse effects on species at risk and to monitor them.
EC referenced the guide prepared by EC and Parks Canada, Addressing Species at Risk Act
Considerations Under the Canadian Environmental Assessment Act for Species Under the
Responsibility of the Minister Responsible for Environment Canada and Parks Canada (2010),
which describes that the obligation to identify and mitigate adverse effects on listed wildlife
species is independent of the likely significance of the adverse effects.
[773] EC recommended a systematic, rigorous, and hierarchal approach to mitigation that first
considers avoidance of effects, followed by minimization of effects and lastly, when all other
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measures have been implemented, restitution or compensation for any residual adverse effects
(e.g., via habitat offsets). EC recommended that conservation offsets be selected according to its
Operational Framework for Use of Conservation Allowances.
[774] OSEC and Aboriginal groups said that Shell should consider habitat offsets to mitigate
project effects on wildlife habitat (see the Effects on Wetlands section for further discussion).
OSEC stated that the Panel should require Shell to develop and submit a verifiable mitigation
strategy for compensatory offsite offsets in order to achieve a net positive impact on habitat for
species at risk and other valued wildlife species.
[775] Shell did not agree that compensatory off-site mitigation was required in order to achieve
a net positive impact for species at risk and valued wildlife given that it had predicted no
significant adverse effects on species at risk or wildlife KIRs as a result of the Project.
[776] Shell stated that it was conservative in its determination of significance given that it used
20 per cent habitat loss as an indicator of high-magnitude habitat loss while other studies
reported thresholds that were much higher (up to 70 to 90 per cent). However, Shell stated that
even if a species had 20 per cent habitat loss, this did not necessarily mean there would be a
significant adverse effect. Shell indicated that it evaluated significance based on professional
judgment and on information on the species at a regional or larger scale.
[777] OSEC contended that Shell should have used the threshold for habitat loss provided in
the TEMF, which recommends that management triggers be set at 10 per cent below the NRV,
and that a 20 per cent decline in habitat for any one species is a threshold that should equal a
significant adverse impact. OSEC also referred to ERCB Decision 2011-005, which concluded,
“For species at risk, the Panel is of the view that any net harm (negative impact) to an individual
of the species, its residence, or its critical habitat would constitute a significant adverse effect.”
[778] EC said that a 70 to 90 per cent threshold of habitat loss was not precautionary, and that
thresholds can vary depending on several factors, including the species in question and the study
area. EC also stated that there was much uncertainty around thresholds and that habitat loss in
the range of 20 to 40 per cent can be enough to change a population trajectory.
Analysis and Findings
[779] The Panel has not been able to rely on Shell’s determination of significant project effects
on wildlife given the issues raised surrounding Shell’s methods for estimating habitat availability
(see the Methods Used to Assess Effects on Terrestrial Resources section).
[780] The Panel notes that Shell did not use any of the thresholds available in its determination
of significance of effects (e.g., TEMF or ERCB Decision 2011-005). The Panel notes that if Shell
had used the 20 per cent habitat loss threshold, it would have concluded that 7 out of 10 species
demonstrated significant adverse project effects as a result of habitat loss in the LSA.
[781] The Panel is aware that wildlife habitat loss appears to be one of the most important
issues for interested parties, and that there is considerable concern over loss of species at risk and
migratory bird habitat. The Panel understands that Aboriginal groups have particular interest in
effects on culturally important species, such as moose, caribou, bison, and waterfowl.
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[782] The Panel is of the opinion that the greatest threat to species at risk as a result of the
Project is the loss of habitat, particularly for wetland dependent species. The Panel notes the
mitigation measures proposed by Shell may not be adequate, and the inability to reclaim wetland
habitat to its former ecosystem function further exacerbates the issue. Particularly concerning to
the Panel is the loss of habitat for species at risk and migratory birds, in some cases at levels
greater than established thresholds. The Panel notes that the obligation to identify and mitigate
adverse effects on listed wildlife species under SARA is independent of the likely significance of
the adverse effects. The Panel is aware that the joint review panel in ERCB Decision 2011-005
determined that any effects on species at risk were significant. The Panel is of the opinion that
Shell has not provided sufficient mitigation measures for species at risk or migratory birds that
depend on wetlands.
[783] The Panel understands that Shell has relied on habitat availability in the RSA and on
reclamation within the LSA to alleviate and/or mitigate the effects of wildlife habitat loss. The
Panel finds that Shell’s reliance on reclamation is unfounded, particularly in the case of
peatlands. The Panel also finds that Shell has provided no evidence to suggest that the RSA can
provide ample habitat and is below carrying capacity for most species. The Panel notes that Shell
has not indicated how it will mitigate effects on peatland dependent species like the yellow rail.
[784] The Panel notes that Shell determined that project effects to wildlife movement would be
high and negative for terrestrial mammals during construction and operation but that it indicated
that wildlife movement around the Project footprint would be sufficient to maintain genetic
connectivity in the RSA. The Panel notes that Shell has proposed to monitor to ensure that that
this is the case and is satisfied with this approach.
[785] Based on the criteria in the Agency’s guide, Determining whether a project is likely to
cause significant environmental effects (November 1994), the Panel used the following approach
to determine the significance of project effects on wildlife in the LSA:
•
The loss of wildlife habitat in the LSA is likely—the Project footprint will be cleared, and
Shell predicts habitat loss more than 20 per cent for 7 out of 10 species at risk and KIRs after
reclamation.
•
The magnitude will be high—given that over 10 000 ha of wetlands will be cleared and 85
per cent of this area is peatlands, which cannot be reclaimed.
•
The geographic extent is regional—given that many of the species that will be affected have
home ranges that are only partially within the LSA, and given that the area immediately
adjacent to the Project consists of other approved oil sands mines (e.g., MRM, Syncrude
Aurora North, and KOSP). Hence, loss of habitat in their range may affect species viability
on a regional level.
•
The duration is long-term—given that peatland restoration is still not demonstrated for oil
sands projects. Likewise, the ability of some species to rebound after closure will be strongly
linked to characteristics of their life history.
•
The effects are largely irreversible—given that there is still no evidence that peatlands can
be successfully reclaimed, and peatlands constitute 85 per cent of wetland habitat being lost
upon which many species at risk and migratory birds depend. Likewise, the loss of many
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species, depending upon their life history characteristics, may be irreversible, given that
some species are at risk or may be are already declining to extirpation.
•
The ecological context of the oil sands region, the area within which the Project would take
place, has already been adversely affected by human activities and some habitats may be
particularly fragile given their inability to be reclaimed. The Project footprint is immediately
adjacent to other existing and approved oil sands mines.
[786] Given this analysis and the lack of proposed mitigation measures that have been shown to
be effective, the inability to reclaim certain habitats to PIC or base case conditions, and effects
on species at risk and migratory birds, the Panel finds significant adverse project effects on
wetland-reliant species at risk and migratory birds and their habitat in the LSA.
[787] The Panel is concerned about the lack of mitigation shown to be effective proposed for
loss of wildlife habitat in the LSA, particularly for wetland habitat used by species at risk and
migratory birds. The Panel believes that without additional mitigation, significant adverse effects
will occur.
[788] As discussed in the Effects on Wetlands section, the Panel recommends that, before other
provincial and federal approvals are issued, the Governments of Canada and Alberta consider the
need for conservation offsets to further mitigate project effects. The potential use of conservation
offsets should include a consideration of the need to compensate for project effects to wetlandreliant species at risk and migratory birds that are wetland-reliant or species at risk.
[789] The Panel notes that Shell will be subject to guidelines set out in the future LARP. The
Panel recommends that the Government of Alberta continue to work toward timely completion
of the LARP biodiversity management framework and that it include wildlife-habitat-loss
thresholds to guide the development of future oil sands projects.
[790] The Panel recommends that the Government of Canada ensure that Shell develop and
implement a follow-up program that requires collecting additional detailed baseline data on the
distribution and abundance of species at risk and migratory birds in the LSA and drawdown
zone, before any site disturbance, to corroborate Shell’s HSI model predictions. The follow-up
program should also monitor changes in local populations’ habitat use during Project
construction and operation and after closure to further validate Shell’s predictions.
Cumulative Effects
Evidence
[791] Shell quantitatively assessed the significance of the effects of changes in the RSA from
the PIC to the application case and the PDC for wildlife before reclamation based on the
assumption that all future projects occur simultaneously. Shell based its predictions on the
assumption that the influx of wildlife into the reclaimed landscape will be determined by the
proximity of potential immigrants in neighbouring landscapes, the presence of wildlife
movement corridors, and the age and developmental stage of the reclaimed land. Shell said that
the effects presented were conservative and represented worst-case scenarios.
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[792] OSEC stated that Shell’s predictions were not conservative or worst-case scenarios
because it did not consider exploration of existing oil sands leases, or planned development
consistent with stated industry expansion goals. OSEC stated that Shell’s assessment did not
represent the actual full extent of development in the PDC.
[793] Shell considered that the overall cumulative effects from the PIC to the application case
and to PDC on barred owl, beaver, black bear, lynx, Western toad, fisher, Canada warbler,
horned grebe, olive-sided flycatcher, rusty blackbird, wood bison, yellow rail, short-eared owl,
and wolverine in the RSA would be adverse but not significant. Shell concluded that although
declines in abundance may occur for these species as a result of development, given the areal
extent of remaining high suitability habitat in the RSA, it was unlikely that the resilience of these
populations in the RSA had been compromised. Shell stated that its population viability analyses
(PVAs) conducted for moose and black bear supported this conclusion.
[794] Given that there is evidence that both the woodland caribou and black-throated green
warbler are declining to extirpation in the RSA, Shell considered the overall cumulative effects
from the PIC to the application case and to PDC for these species to be significant and adverse.
[795] Shell stated that declines in abundance from the PIC to the application case would be
high in magnitude for the barred owl, black-throated green warbler, Canada warbler, rusty
blackbird, woodland caribou, and yellow rail before reclamation. Shell estimated moderate
magnitude population declines from the PIC to the application case for the horned grebe, fisher,
common nighthawk, olive-sided flycatcher, wolverine, beaver, black bear, and moose.
[796] Shell stated that declines in abundance from the PIC to the PDC would be high in
magnitude for the barred owl, Canada lynx, horned grebe, wolverine, black-throated green
warbler, Canada warbler, rusty blackbird, woodland caribou, and yellow rail before reclamation.
Shell estimated moderate magnitude population declines for beaver, common nighthawk, olivesided flycatcher, moose, and black bear from the PIC to the PDC.
[797] EC stated that the population-level consequences of cumulative habitat loss in the RSA
were unknown for most species at risk and migratory birds; however, habitat loss can be a
principle factor contributing to population declines. In particular, EC noted that populations of
many migratory birds and species at risk were already declining in Alberta. EC further stated that
limited information was available on population trends and thresholds of many species at risk
and migratory birds in the oil sands region and on the cumulative effects of industrial
development.
[798] Fort McKay had concerns about cumulative effects. In particular, Fort McKay submitted
that ALCES modelling 10 conducted for the development of the TEMF and for the Government of
Alberta in the development of the LARP indicated that at the current rate of oil sands
development, severe declines in wildlife populations will occur, in some cases 60 per cent below
the natural range of variation within 20 years (e.g., moose and fisher). The ALCES simulations
also indicated that the density of linear features (e.g., pipeline rights-of-way, seismic lines) was a
primary cause of these declines. TEMF predicted that declines would continue unless land use
10
ALCES Group. 2009. Lower Athabasca Regional Plan, ALCES III Scenario Modeling. Summary and technical
results for Scenario Package One. Prepared for Worley Parsons by the ALCES Group, June 2009. 179pp.
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changes were made in the oil sands region. Fort McKay further stated that previous wildlife
surveys were not useful for assessing wildlife populations and cumulative effects in the oil sands
region and in Fort McKay’s traditional territory. Fort McKay concluded that, essentially, no
meaningful trends about regional population and cumulative effects on wildlife populations can
be determined from existing data.
[799] Shell stated that the environmental consequences of effects on habitat during operations
from the PIC to the application case ranged from moderate to high for all KIRs and species at
risk with the exception of short-eared owls, for which effects on habitat were considered
negligible. Shell also stated that most effects on habitat from the PIC to the application case were
due to disturbances that were already present in the base case. As a result, Shell stated that the
environmental consequences of effects on high-suitability habitat from the PIC to the application
case are the same as those from the PIC to the base case for all KIRs and species at risk with the
exception of the western toad.
[800] Shell predicted that high suitability habitat for western toad would decrease by 19 per
cent from the PIC to the base case and by 21 per cent from PIC to the application case, resulting
in a high magnitude environmental consequence. Shell attributed declines of western toads to
disease rather than habitat loss, and as a result did not consider that there would be a likely
significant adverse effect.
[801] Shell stated that most effects on habitat from the PIC to the PDC were similar to those
from the PIC to the base case and application case.
[802] Shell stated that because the precise locations and size of certain planned projects and
associated reclamation and re-vegetation plans were unknown for the application case and the
PDC, it was very difficult to predict post-reclamation conditions for wildlife at the RSA scale.
As such, Shell provided qualitative and not quantitative predictions of wildlife habitat postreclamation.
[803] EC agreed with Shell that the effects of cumulative habitat loss on many species at risk
and the black-throated green warbler at the application case and PDC have a high negative
environmental consequence when evaluated relative to the PIC. EC stated that a number of
studies and analyses have demonstrated high levels of existing and potential future habitat loss
and possible adverse effects on species at risk and migratory birds in this region. As such, EC
stated that it is concerned about the level of habitat loss that Shell has identified both at the
application case and the PDC, for a number of species at risk and migratory birds. EC stated that
these effects will be long-term in duration and possibly permanent, depending on the success of
reclamation, particularly for wetland (lowland) dependent species.
[804] According to OSEC, cumulative effects from the application case and the PDC will
exceed the CEMA wildlife habitat threshold given in the TEMF, which is 10 per cent below the
limit of the NRV. OSEC stated that any projected declines in habitat more than 20–30 per cent of
the preindustrial condition could be considered as inconsistent with CEMA’s recommended
wildlife thresholds. OSEC concluded that if the Project and other proposed projects were
approved, 11 of 19 assessed species will lose more than 20 per cent of their high value habitat in
the 2.3 million hectare terrestrial RSA at the application case as will 13 of 19 assessed species in
the PDC. OSEC further stated that these values did not represent the full picture of disturbance in
the RSA given that Shell did not include many reasonably foreseeable disturbances.
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[805] OSEC said that projected habitat losses in the 20–60 per cent range over an area far larger
than the Fort McMurray Athabasca Oil Sands Sub-Regional IRP were not consistent with the
IRP direction to maintain habitat and promote increased populations of rare and endangered
species. OSEC also noted that projected impacts within the Fort McMurray Athabasca Oil Sands
Sub-Regional IRP area itself would be significantly higher than those in Shell’s RSA.
[806] OSEC stated that Shell’s methods for assessing significance of effects on wildlife based
on whether resiliency of populations in the RSA had been compromised were without merit.
OSEC concluded that Shell’s EIA exceeded the threshold used by the panel assessment of the
Total Joslyn North Mine Project (ERCB Decision 2011-005) for determining significant adverse
effects for KIRs and species at risk assessed at the application case. OSEC further stated that in
addition to ignoring previous Panel decisions (e.g., TOTAL), Shell is also ignoring CEMA and
policy guidance on significance of predicted wildlife habitat losses in northeastern Alberta.
OSEC said that Shell’s proposition that regional extirpation of a species was an appropriate
threshold for a significant adverse effect, was setting the bar far too low. EC said that given the
high level of cumulative habitat loss identified for several species at risk in the RSA compared
with the PIC, any contribution of the Project to cumulative habitat loss for species at risk should
be mitigated. To that end, EC recommended a systematic, rigorous, and hierarchical approach
that includes compensation as described under the Project Effects subsection.
[807] The Fort McKay Specific Assessment showed that a large amount of wildlife habitat has
already been removed from Fort McKay’s traditional territory. This study concluded that the
environmental consequence of habitat change is high for moose, beaver, Canada lynx, and
fisher/marten suggesting that the wildlife habitat of those species had been severely impacted by
oil sands development.
[808] OSEC stated that given delays in implementing the LARP, the TEMF is the most
appropriate guidance for determining if proposed wildlife effects in the oil sands were in the
public interest and conform to the broad IRP directive to maintain wildlife habitat. OSEC
emphasized that previous oil sands panels have pointed to the importance of the TEMF in
determining the significance of cumulative effects. In ERCB Decision 2011-005, the Panel stated
that it believed that the TEMF provided useful ways to manage cumulative effects on wildlife
within the area of the RMWB. In particular, OSEC presented that the TEMF includes a threshold
for constraining the intensive zone 11 (area of oil sands projects under development) to less than
14 per cent of the RMWB at any time. According to its own analysis, OSEC determined that this
threshold would be exceeded by the PDC given that proposed and approved oil sands projects
now cover 21 per cent of the municipality. OSEC concluded that concurrent development of only
a few of the PDC projects would exceed the highest level of intensive development zone
recommended by CEMA. OSEC warned that future oil sands projects will likely further
exacerbate these effects because 51 per cent of the RMWB has been leased for oil sands
development.
[809] Shell rebutted OSEC’s analysis, stating that it was an overstatement of the planned
conditions in the RMWB because its resolution is at the quarter-township level. Based on its own
11
The TEMF recommends the application of a Triad land management approach that involves the identification of
three land use zones: intensive, extensive, and protected. CEMA defines an intensive zone as an area that is
characterized by bitumen extraction comprising 5 per cent to 14 per cent of the RMWB at any time.
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analysis, using hectares instead of quarter townships, Shell estimated that the area of intensive
use in the RMWB is about 8 per cent of the RWMB.
[810] According to OSEC, the cumulative effects on wildlife described in the EIA from PIC to
application case and to PDC were the highest levels of regional wildlife effects ever described in
an oil sands project application particularly with regard to wildlife habitat loss. OSEC also stated
that the effects on wildlife in the EIA are inconsistent with the policy direction of the Fort
McMurray Athabasca Oil Sands Sub-Regional IRP, the LARP, and federal and provincial
legislated policies of sustainable development, EPEA, SARA, and CEAA, 2012. OSEC pointed
out that the IRP has as one of its goals, “to protect wildlife species considered sensitive to
disturbance or environmental change and to promote increased populations and distribution of
species considered rare or endangered (e.g., wolverine, woodland caribou).”
[811] OSEC stated that it is clear that the cumulative effects of reasonably foreseeable
disturbance on wildlife now exceed the threshold used in a previous panel assessment to
determine significant adverse effects. OSEC further stated that Shell had not provided a plan to
adequately mitigate these significant adverse effects, and as such the Project was not in the
public interest and should not be approved.
[812] OSEC stated that should the Project proceed, Shell should be required to develop and
submit a verifiable mitigation strategy including a requirement for the purchase and conservation
of ecologically significant private boreal forest lands, the restoration of existing disturbance
footprints in northeastern Alberta, and/or strategies to retire harvesting rights on public lands on
a three hectare offset for each hectare of project disturbance basis. EC and Aboriginal groups
have also stated that conservation offsets are required to mitigate wildlife habitat loss in the
RSA.
[813] Shell stated that the overall risks to wildlife health will be low and that there would be no
effects on wildlife populations based on estimated wildlife exposures to predicted concentrations
in air, soil, or surface water. ACFN, MCFN, and FMMFN #468 provided information from its
members regarding changes they have seen in a number of fish and animals, such as meat
discolouration, changes in the taste of moose meat, tumours, and abnormal looking organs.
Members have also noted behavioural changes in some animals.
Analysis and Findings
[814] The Panel notes that although Shell based its analysis of cumulative effects on wildlife on
the results of predicted changes to abundance, habitat, and movement, most interested parties
focused their concerns around projected habitat loss. In addition, the Panel believes that changes
to habitat as a result of future development scenarios and the potential for reclamation are more
tangible measures than changes to wildlife abundance or movement. These latter two factors
would tend to have a greater number of assumptions associated with their predictions, as they
would be subject to many more unknowns, such as population dynamics, severe weather events,
predator-prey/food web relationships, declines in other parts of the range, etc. The Panel
therefore directed most of its analysis around Shell’s predictions for habitat loss, with additional
consideration for the size of Shell’s chosen RSA and the potential uncertainty around these
predictions.
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[815] The Panel recognizes that loss of wildlife habitat as a result of existing and proposed
development in the RSA is very high for a number of species (some of them species at risk) and
exceeds some of the critical habitat thresholds proposed in the literature and in regulatory
documents (e.g., IRP and the TEMF). The Panel recognizes that the TEMF recommends that
wildlife habitat loss be constrained to a threshold of below 20 per cent, a threshold that was used
by the Joint Review Panel for the Joslyn North Mine Project. The Panel understands that if the
same threshold was applied for the application case, 11 out of 19 species at risk and wildlife
KIRs would have more than 20 per cent high- or moderate-quality habitat loss and at the PDC,
13 out of 19 would have more than 20 per cent high- or moderate-quality habitat loss. The Panel
notes that Shell participated in the development of the TEMF and the creation of guidelines and
thresholds within it.
[816] The Panel notes that Shell did not use disturbance guidelines provided in TEMF
(maintain disturbance in the RMWB to between 5 and 14 per cent). The Panel recognizes that if
TEMF were used, the PDC scenario would exceed the allotted area available for intensive
development in the RMWB. The Panel recognizes that Shell and OSEC have each attempted to
estimate the intensive zone in the RSA using different means (per hectare basis versus quarter
township, respectively). The Panel notes that the TEMF outlines that the quarter township
method should be used when estimating the intensive zone.
[817] The Panel notes that Shell predicted the greatest losses of habitat (more than 40 per cent
at the PDC) for species that are old-growth- and wetland-dependent such as barred owl, Canada
warbler, caribou, wood bison, and black-throated green warbler. The Panel is aware that many of
the species at risk that will be affected by habitat loss from the Project are already subject to
large-scale declines in northeastern Alberta, many as a result of ongoing industrial activities.
[818] The Panel is aware that Shell’s models of habitat availability at the RSA have numerous
sources of error that could greatly affect model predictions. The Panel acknowledges that Shell
did not provide any measures of the error associated with these models, but that it could be larger
than the ±20–25 per cent error associated with Landsat data alone. Consequently, the Panel
recognizes that the estimates of wildlife habitat availability in the RSA post-closure could be
considerably different than that predicted by Shell, and potentially much less habitat may be
available. The potential loss of habitat could increase substantially if the Panel had a means of
estimating the amount of error associated with Shell’s HSI modelling and the amount of error
associated with uncertainty around application case development and reclamation effectiveness.
[819] The Panel understands that under SARA, if a project is carried out, measures must be
taken to avoid or lessen adverse effects on species at risk and to monitor them. The Panel is also
aware that in the Addressing Species at Risk Act Considerations Under the Canadian
Environmental Assessment Act for Species Under the Responsibility of the Minister Responsible
for Environment Canada and Parks Canada (SARA-CEAA guide), the obligation to identify and
mitigate adverse effects on listed wildlife species is independent of the likely significance of the
adverse effects. The Panel acknowledges that in ERCB Decision 2011-005, that panel considered
any net harm to species at risk to be significant.
[820] The Panel notes that for guidance on wildlife habitat thresholds and the protection of
wildlife habitat, Shell relied heavily on the recently approved LARP and Alberta’s commitment
to develop and implement a biodiversity management framework under the LARP. The Panel
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recognizes that once the biodiversity management framework under LARP is complete, it will be
useful for directing development in the Lower Athabasca Region. However, in the interim, Shell
should utilize existing guidance such as TEMF in setting thresholds for assessing significant
effects on wildlife. The Panel further recognizes that the LARP itself states that, “Within the
Lower Athabasca Region, integrated resource plans have been developed which identify
objectives for long term management of specific landscapes. These plans represent the
Government of Alberta’s resource management policy for public lands and resources and are
intended to be a guide for decision-makers.” The Panel notes that the IRP is in place for the
RSA.
[821] The Panel understands that the effects on wildlife and particularly species at risk at the
application case and the PDC are inconsistent with the guidance provided in the IRP, which has
as a goal to protect wildlife species considered sensitive to disturbance or environmental change
and to promote increased populations and distribution of species considered rare or endangered
(e.g., wolverine, woodland caribou).
[822] The Panel understands that for many species at risk and migratory birds, such as the
woodland caribou and the black-throated green warbler, it is the cumulative effects of industrial
activities, including oil and gas and forestry activities that have led to the predicted decline to
extirpation.
[823] The Panel understands that interested parties contend that mitigation measures to account
for this scale of habitat loss are not sufficient and strongly recommended conservation offsets if
the Project goes forward.
[824] The Panel recognizes that the cumulative effects on wildlife described in the EIA from
PIC to application case and PDC are the highest levels of wildlife habitat loss ever described in
an oil sands project application. The Panel is not surprised that this is the case because it includes
all of the projects that proceeded to date, all that have been approved, the Project, some projects
that are planned but not necessarily applied for and disturbances associated with natural
processes (forest fire).
[825] The Panel is particularly concerned about effects on species at risk and migratory birds as
a result of the application case. The Panel acknowledges that there are not many options for
mitigating wildlife habitat loss for oil sands mines without the sterilization of bitumen. The lack
of mitigation measures proposed by Shell that have been shown to be effective in mitigating
effects on wildlife habitat loss, the inability to reclaim peatlands, and the time lag to recovery of
old-growth forests all compound the issue.
[826] Based on the criteria provided in the Agency’s guide, Determining Whether a Project is
Likely to Cause Significant Environmental Effects (November 1994), the Panel used the
following approach to determine the significance of cumulative effects on wildlife based on the
application case and the PDC:
•
The loss of wildlife habitat in the RSA is likely—Shell will clear the Project footprint (along
with other projects) resulting in a permanent loss of some habitat types and a long time lag to
the restoration of others. Likewise, for many species at risk for which habitat loss is a known
serious threat to their recovery, the likelihood of declines in species abundance is also high.
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•
The magnitude will be high—given that losses to habitat for some species are in the
hundreds of thousands of ha.
•
The geographic extent is regional—affecting the RSA and beyond, given that many species
are large and mobile with home ranges that extend beyond the RSA.
•
The duration is long-term—given the timeframe to restore some wetland habitat, old-growth
forest, and peatland is still not demonstrated for oil sands projects. Also, many wildlife
species are slow growing and long lived, therefore, it may take a long time for animals to
return to areas after closure.
•
The effects are irreversible in the medium to long term—given that no evidence suggests
that wetland and old-growth habitats can be reclaimed in the medium to long term and some
species are already declining to extirpation in the RSA (e.g., black-throated green warbler
and caribou) with no evidence that they will return.
•
The ecological context of the oil sands region—the area in which the Project is taking place
has already been adversely affected by human activities and as such, many species are
already undergoing large-scale declines as a result of these industrial activities (e.g., caribou,
black- throated green warbler and potentially others like yellow rail).
[827] Given this analysis and the ineffectiveness of proposed mitigation measures, the
surpassing of existing thresholds for wildlife habitat loss by over half of all species analyzed by
Shell, the resultant changes to the ecosystem resulting in a loss of wetlands and a landscape
dominated by upland ecosystems, and the pre-existing effects on species at risk and migratory
birds in the oil sands region, the Panel finds that there would be significant adverse cumulative
effects on species at risk and migratory birds in the RSA as a result of the application case and
the PDC when compared with the PIC. The Panel considers cumulative effects on woodland
caribou, black-throated green warbler, Canada warbler, horned grebe, rusty blackbird, western
toad, and yellow rail to be particularly significant, given more than 20 per cent loss of high- or
moderate-quality habitat and reliance on peatland or old-growth habitats.
[828] The Panel is aware that the LARP states that the province is committed to progressive
reclamation to help ensure that environmental and land management goals are met. While more
timely reclamation of mining-related activities should be pursued, the Panel understands that
there may be limited opportunities for significant improvements in the timeliness of mine
reclamation until significant improvements are made in the management of fine-fluid tailings,
reducing the size and number of tailings ponds required.
[829] The Panel recommends that the Governments of Canada and Alberta ensure that the best
available research and development is used to improve reclamation of wildlife habitat in the oil
sands region in order to provide habitat for these species as soon as possible.
[830] The Panel believes its recommendation regarding consideration of the need for
conservation offsets by Alberta and Canada would also help mitigate effects to species at risk
and migratory birds should the use of offsets be required. The affected species described in this
section should be considered in any determination of offsets.
[831] The Panel recommends that until the biodiversity management framework and any
associated thresholds are developed under LARP, the Governments of Canada and Alberta ensure
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that oil sands proponents consider thresholds and guidelines for assessing the significance of
project effects that are available in existing documents, namely the TEMF and the Fort
McMurray IRP.
[832] The Panel recommends that the Governments of Canada and Alberta in collaboration
with key stakeholders collect baseline data, and monitor and report on any future changes to the
distribution and abundance of species at risk and migratory birds in the oil sands region. The data
should be made available for future CEAs by proponents in the oil sands region as well as to
Shell to allow it to confirm its EIA predictions.
[833] The Panel recommends that the Governments of Canada and Alberta, industry,
Aboriginal groups, and other key stakeholders, work together to assess the return of wildlife to
reclaimed oil sands affected landscapes.
Woodland Caribou
Project Effects
Evidence
[834] According to Shell, species at risk, such as woodland caribou, that rely on old-growth and
wetland habitats in the LSA, will have less high- and moderate-quality habitat in the LSA after
reclamation. Shell said that the Project footprint will result in the direct removal of
approximately 1300 ha of high-quality caribou habitat and 3000 ha of moderate-quality habitat in
the LSA. However, Shell also said that woodland caribou were virtually absent in the LSA, and
because the nearest designated caribou range is several kilometres away, it anticipated negligible
effects on caribou due to the Project.
[835] ACFN suggested that Shell’s statement was tantamount to an admission that caribou have
already been so greatly affected by human activities that they are now absent from that
ecosystem and no mitigation was required in trying to bring them back.
[836] EC indicated that to the best of its knowledge, the Project does not occur within caribou
range, and there have been very few sightings of caribou in the area. However, EC
acknowledged that the recent federal recovery strategy for woodland caribou may not take into
account new data provided by Aboriginal groups that suggest that caribou are in the LSA.
[837] ACFN, Métis Region 1, and the NSFMFM and Clearwater Band disagreed with Shell’s
and EC’s view that caribou do not use the Project area, providing evidence of recent sightings
and habitat use within the proposed Project footprint. Interested parties further stated that caribou
used the wetlands and old-growth habitat in the LSA as shelter from predators and to raise their
young.
[838] ACFN stated that the Project will remove or affect habitat for woodland caribou, a
species that is traditionally relied upon given that they were once numerous in the region. ACFN
members were concerned that if the Project proceeds, the caribou will be affected because the
area will be made unusable. Specifically, ACFN noted that within the Project LSA, high-quality
woodland caribou habitat will be impacted by direct disturbance. Mr. Laviolette was particularly
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concerned about the potential project effects on caribou habitat found on the muskeg south of
McClelland Lake because he believed it was an important calving area.
[839] FMMFN #468 expressed concern that the Project will affect the habitat, mobility, and
mortality of caribou, a species important for the exercise of their traditional rights.
[840] The NSFMFM and the Clearwater Band stated that there were caribou from the Audet
and Steepbank herds on Shell’s lease and that the muskeg area on the Project site was an
important calving area. The NSFMFM and the Clearwater Band explained that the Audet and
Steepbank herds were now merged with the Richardson herd. Both groups also explained that
there were some sources of salty water on Shell’s lease and that this salty water attracts caribou.
They were of the opinion that the sources of salty water were important to the animals and will
be lost because of the Project.
[841] Shell referred to the federal recovery strategy for woodland caribou, which states that the
greatest threats to caribou were habitat alteration/degradation and predation. In particular, the
recovery strategy outlined that human-caused habitat alterations (e.g., development of linear
features such as roads and seismic lines) have been shown to facilitate movement of predators
within the boreal forest and hence can increase the abundance, distribution, and hunting
efficiency of species that prey on boreal caribou.
[842] Shell said that it will use long sightlines wherever possible in the LSA to reduce potential
for vehicle collisions with wolverines; however, EC stated that long, straight roads in the LSA
and surrounding area can increase mortality risk to caribou by facilitating predator efficiency,
particularly by wolves.
[843] EC stated that the Project footprint will reduce available habitat for caribou predators
(namely wolves) and force them into the surrounding RSA along with many of their prey (deer
and moose). The recovery strategy identified critical habitat for caribou that was only 5 km away
from the LSA (the Richardson Range). The recovery strategy indicates that given a current
disturbance rate of 82 per cent, the Richardson Range is not self-sustaining and prescribes
immediate action to reverse this negative trend. EC said that an increase in predators could
increase the threats to caribou in the Richardson Range and make it even more difficult to
reverse the negative trend and create a self-sustaining population within the critical habitat.
[844] Shell stated that deer were invading northeastern Alberta, in part because of the
prevalence of early seral habitats to which they were well adapted. Shell further acknowledged
that more deer on the landscape will result in increases in their predators, namely wolves. Shell
further stated that clearing the LSA will result in a situation where additional deer and wolves
may be present in the landscape and may affect caribou within the nearby Richardson Range.
[845] EC stated that Shell has not proposed any mitigation measures for reducing this potential
increased predation of caribou in the adjacent Richardson Range critical habitat. EC further
stated that if the Project goes forward, follow-up and monitoring of movement of wolves and
their prey will be required.
[846] EC indicated that the recovery strategy requires Alberta to develop a range plan for each
nonsustaining caribou herd to ensure long-term recovery of woodland caribou across Canada. EC
suggested that a range plan for Alberta was 3–5 years away from completion. When questioned
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by ACFN on what tools were available to ensure “immediate action” as prescribed in the
recovery strategy, EC responded that there were mechanisms in SARA that could be used, such as
the emergency protection order.
Analysis and Findings
[847] The Panel acknowledges the traditional and cultural importance of caribou to Aboriginal
people. The Panel acknowledges that numbers of caribou in the LSA are likely to be low, given
that they have already been adversely affected by industrial development in the oil sands region.
However, the Panel recognizes that historically, caribou were found in much greater numbers.
[848] The Panel acknowledges that there is considerable debate about the presence of caribou
in the LSA. Although it appears from evidence provided by Aboriginal groups that caribou do
use the Project area, the frequency and magnitude of this use is uncertain. The Panel recognizes
that potential caribou habitat does still occur on the Project lease but it does not fall within
critical habitat identified in the recovery strategy. Given the lack of approved range plans, the
overall importance of this habitat is uncertain; however, because of the declining status of
caribou, largely as a result of human disturbances, all suitable habitat loss (e.g., old-growth forest
and peatlands) is potentially significant in the ability of caribou to recover to self-sustaining
population levels.
[849] The Panel understands that some caribou herds are under particular threat in Alberta and
the oil sands region and are thought to be declining to extirpation. As such, the Panel believes
that there should be particular attention given to restoring and protecting critical habitat for
caribou as outlined in the federal recovery strategy. The Panel is aware that the closest critical
habitat is only 5 km from the LSA, and as such, the Panel shares the opinion with EC that
indirect project effects on caribou in the Richardson Range through increased predation by
wolves is possible. Further, the Panel believes that increased predation may impede the ability of
the caribou in the Richardson Range to meet the population objectives as outlined in the recovery
strategy.
[850] Based on the criteria provided in the Agency’s guide, Determining whether a project is
likely to cause significant environmental effects (November 1994), the Panel used the following
approach to determine the significance of project effects on caribou:
•
The loss of caribou habitat in the LSA is likely—the Project footprint will be cleared,
peatlands will not be recovered, and there will be a considerable time lag for old-growth
recovery. The loss of habitat for caribou predators (e.g., wolves) and their prey (e.g., deer) is
also likely, resulting in their potential movement to nearby critical habitat in the Richardson
Range.
•
The magnitude will be low—while over 10 000 ha will be cleared, the area is not currently
used by many caribou.
•
The geographic extent is regional—given that critical habitat for caribou in the Richardson
Range is only 5 km away, a distance that is well within the home range of caribou, caribou
predators, and their prey (moose, deer). Hence, loss of habitat for these predators may affect
species viability on a regional level in the critical habitat.
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•
The duration is long-term—given that the time frame for caribou habitat (both wetlands and
old-growth) to return to its former biodiversity and function is more than 80 years and
peatland restoration is still not demonstrated for oil sands projects. Likewise, the ability of
caribou to recover after closure will be highly linked to characteristics of their life history,
i.e., longer-lived, slower-growing species like caribou will take much longer to re-establish
after reclamation.
•
The effects are largely irreversible—given that there is still no evidence that peatlands can
be successfully reclaimed, peatlands constitute 85 per cent of wetland habitat lost and caribou
are declining to extirpation in the nearby Richardson Range.
•
The ecological context of the oil sands region where the Project is taking place has already
been adversely affected by human activities, as have caribou. The Project footprint is
immediately adjacent to other existing and approved oil sands mines.
[851] Given this analysis and the categorization of caribou in the nearby Richardson Range as
being “not self-sustaining”, the requirement in the federal recovery strategy for immediate
actions to avoid extirpation in this range, and the inadequacy of Shell’s proposed mitigation
measures, the Panel finds that there are likely adverse project effects on caribou in the nearby
Richardson Range. However, given that the habitat within the LSA does not currently appear to
be used by caribou in any substantial number, the Panel does not find the Project to have
significant adverse effects on caribou.
[852] The Panel recommends that the Government of Alberta in consultation with the
Government of Canada and interested Aboriginal groups in the oil sands area produce a range
plan for caribou in the designated critical habitat of the Richardson Range as soon as possible.
This range plan will outline specific steps for providing immediate action to reverse the current
level of disturbance, as prescribed in the federal recovery strategy. These steps should include
direction for ensuring that indirect effects (e.g., increased predation resulting from nearby land
clearing) on already significantly disturbed populations such as the Richardson Range are
minimized or avoided.
[853] The Panel recommends that the Governments of Canada and Alberta ensure that Shell
monitors the distribution and behaviour of caribou predators (namely wolves) and their usual
prey (e.g., deer and moose) following clearing of the LSA to assess the potential indirect effects
to the Richardson Range.
[854] The Panel recommends that the Government of Canada ensure that Shell conducts further
research and survey work to determine the extent to which caribou are using the LSA, and if they
are, to determine the number of people inhabiting the area and their connection to the caribou in
the Richardson Range. The Panel recommends that the Government of Canada ensure that Shell
works collaboratively with Aboriginal groups in carrying out this research. The results of this
work should be provided to the Government of Alberta to help update caribou range plans in
Alberta.
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Cumulative Effects
Evidence
[855] Shell stated that all three woodland caribou populations in the RSA appear to be
declining to extirpation because the indirect effects of industrial development on predator-prey
dynamics. Shell predicted a high-magnitude decline in woodland caribou abundance in the RSA
from PIC to base case, application case, and the PDC. Shell said that most of the effects on
caribou occurred between the PIC and the base case. For the application case, Shell predicted a
41 per cent (171 753 ha) and a 92 per cent (1652 193 ha) decline in high- and moderate-quality
caribou habitat, respectively, in the RSA. For the PDC, Shell predicted a 47 per cent
(199 988 ha) and a 93 per cent (1 665 049 ha) decline in high- and moderate-quality caribou
habitat, respectively, in the RSA. Shell considered the cumulative environmental effects on
woodland caribou to be likely, significant, and adverse.
[856] The federal recovery strategy for woodland caribou, presented as evidence by Shell,
indicates that three herds with critical habitat are identified in the RSA: the Red Earth,
Richardson, and West Side Athabasca Ranges, and that all three of those herds are considered in
the recovery strategy to be not self-sustaining. The recovery strategy outlines that the recovery
objective for herds that are not self-sustaining involves stabilizing and achieving self-sustaining
status, and that this requires immediate action for boreal caribou ranges where local populations
are declining. The recovery strategy also prescribes that habitat management will be necessary
for nonself-sustaining herds, and identifies 65 per cent undisturbed habitat in a range as the
disturbance management threshold. As such, for boreal caribou ranges with less than 65 per cent
undisturbed habitat, restoration to a minimum of 65 per cent undisturbed habitat will be
necessary. Both the Richardson and the West Side Athabasca Ranges have less than 65 per cent
undisturbed habitat (18 and 31 per cent undisturbed habitat, respectively).
[857] Shell predicted that woodland caribou will experience a decrease in the amount of high
and moderate suitability habitat after reclamation relative to the PIC, attributing this decrease to
the loss of peatlands. Shell further predicted that reclamation landscapes will increase abundance
of white tailed deer, which may increase wolf populations in the reclamation landscape. Shell
attributed the observed decreases in caribou from PIC to base case due to predation by wolves.
[858] EC stated that it was concerned about the level of habitat loss for woodland caribou that
Shell identified in both the application case and the PDC.
[859] OSEC provided evidence from the Dover EIA that suggested that unless trends are
reversed, woodland caribou populations in the RSA were estimated to decline to near extirpation
after 30 years.
[860] ACFN consider woodland caribou to be culturally important. ACFN indicated particular
concerns about project effects on culturally important populations of woodland caribou in the
RSA and beside the Project LSA (Kearl Lake area). ACFN further stated that within the RSA,
areas of core woodland caribou habitat both north and east of the Project and areas downstream
of the Project along the Muskeg and Athabasca Rivers are among the site-specific environmental
values most at risk in the application case.
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[861] MCFN and ACFN expressed concerns with respect to caribou and that the draft LARP
does not provide concrete or strong enough consideration of caribou. Both groups said that the
proposed provincial caribou policy contains serious flaws and loopholes that suppress caribou
protection in favour of economic interests. As such, MCFN and ACFN recommended the
following approaches to protect caribou habitat:
•
No net loss of woodland caribou habitat
•
No net increase in linear disturbance within caribou habitat
•
Restoration of historical caribou range that is already disturbed by industrial activities
•
Protection of all local populations throughout their historical and current ranges in
northeastern Alberta
•
Involvement of First Nations in planning, management, and monitoring of caribou
Analysis and Findings
[862] The Panel understands that it is the cumulative effects of industrial activities, including
oil and gas activities, that have led to the current predicted decline to extirpation of woodland
caribou. The Panel acknowledges that it is both the loss of habitat and the indirect effects leading
to altered predator-prey interactions that have put caribou at risk in the RSA. The Panel
recognizes that when a species at risk is as highly impacted as caribou, recovery will require a
regional effort in order to attempt to rectify current population trends, both inside and outside of
critical habitat.
[863] The Panel understands that the federal recovery strategy provides the initial direction
needed to bring about caribou recovery, including immediate action to reverse the trends of
caribou populations that are considered to be nonself-sustaining, namely all three herds in the
RSA. The Panel also understands that habitat management will be necessary in order to meet the
target of 65 per cent undisturbed habitat in both the Richardson and West Side Athabasca herds.
The Panel further understands that habitat management will require a reduction of both direct
(e.g., habitat loss and sensory disturbance) and indirect (predator-prey dynamics) threats in order
to reverse the trend for the caribou.
[864] Based on the criteria provided in the Agency’s guide, Determining Whether a Project is
Likely to Cause Significant Environmental Effects (November 1994), the Panel used the
following approach to determine the significance of cumulative effects on caribou based on the
application case and the PDC:
•
The loss of caribou habitat in the RSA is likely—the Project footprint along with other
project footprints will be cleared, resulting in a permanent loss of preferred caribou habitat
types and a long time lag for the restoration of others (old-growth and peatlands). Habitat
loss has been identified in the recovery strategy as a serious threat to caribou recovery;
hence, the likelihood of declines in species abundance is also high.
•
The magnitude will be extremely high—given losses of over one million ha of caribou
habitat (e.g., loss of moderate quality caribou habitat of 1 652 193 ha in the application case),
and given that this species is already declining to extirpation.
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•
The geographic extent is regional—affecting the RSA and beyond, given that caribou are
large and mobile, with home ranges that extend beyond the RSA.
•
The duration is long-term—given that the timeframe to restore caribou habitat is at least 100
years for old-growth forests, and that peatland restoration is still not demonstrated for oil
sands projects. Beyond that, caribou are slow growing and long lived, and it may take a long
time for animals to return to areas after closure.
•
The effects are largely irreversible—given that no evidence suggests that wetland and oldgrowth habitats can be reclaimed, and that caribou are already declining to extirpation with
no evidence of significant recovery action to halt the decline.
•
The ecological context of the oil sands region where the Project is taking place has already
been adversely affected by human activities and as such, caribou are already undergoing
large-scale declines as a result.
[865] Given this analysis and the lack of proposed mitigation measures shown to be effective,
the surpassing of existing thresholds for caribou habitat loss in Shell’s analysis, and the threat of
extirpation of caribou in the oil sands region, the Panel finds that there would be significant
adverse cumulative effects on caribou in the RSA in the application case and the PDC.
[866] The Panel recommends that the Government of Alberta work in cooperation with EC
towards the expeditious completion of range plans for caribou in the oil sands region to ensure
that immediate action occurs as prescribed in the federal recovery strategy.
[867] The Panel recommends that the Government of Alberta work with Aboriginal groups
during development of the biodiversity management framework under LARP to specifically
address issues related to caribou in the oil sands region. The Panel further recommends that
during development of the biodiversity management framework, consideration be given to
principles such as no net loss of caribou habitat, limiting linear disturbances in critical caribou
habitat, and restoration of historical and present caribou ranges.
Wood Bison
Project Effects
Evidence
[868] Shell stated that it assessed the effects of the Project on potential wood bison habitat in
the LSA as having a negative, high environmental consequence during construction, operation,
and closure. However, Shell stated that wood bison do not actually occur in the LSA and
therefore will not be affected by the Project. Shell did not consider the effects of the Redclay
Compensation Lake in its analysis of project effects on bison. Shell said that the main threat to
wood bison was disease and that they are not habitat-constrained within the RSA. Therefore, the
Project would have negligible effects on wood bison. Shell also indicated that issues surrounding
species at risk and the location of the compensation lake would fall under the purview of DFO.
[869] ACFN stated that predation, disease, and habitat were the three main factors contributing
to low numbers of wood bison that have to be considered in any recovery plan for the wood
bison.
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[870] ACFN highlighted that the federal recovery strategy for wood bison under the SARA was
over 10 years late. EC stated that it will release a draft SARA recovery strategy for wood bison
toward the end of 2013 and would consult with Aboriginal people before the draft is posted.
[871] ACFN stated that the wood bison was an important traditional resource for the ACFN and
that the Project will have negative effects on the Ronald Lake herd, potentially resulting in the
extinction of this herd. ACFN stated that there will be substantial losses of wood bison habitat
given the proposed site of the Redclay Compensation Lake, which is currently located in the area
used by the Ronald Lake herd. ACFN stated that it anticipated that the compensation lake would
inundate and destroy observed and known core Ronald Lake wood bison habitat, specifically a
habitat type known locally as “buffalo prairie.”
[872] ACFN members indicated that the Ronald Lake herd was particularly important as it was
the only herd of wood bison available to ACFN hunters outside Wood Buffalo National Park
(refer to the Effects on Aboriginal Traditional Land Use, Rights and Culture section for further
detail).
Analysis and Findings
[873] The Panel notes that the federal recovery strategy under SARA is over 10 years late. The
Panel understands that without the recovery strategy in place, it is difficult to determine the
importance of the Ronald Lake herd in contributing to the population objectives for the recovery
of the species. Similarly, without the identification of critical habitat, it is difficult for the Panel
to establish the importance of the area of the Redclay Compensation Lake for meeting the
objectives of the recovery of the wood bison population, and hence the significance of
environmental effects.
[874] The Panel recognizes that Shell did not consider the area of the proposed Redclay
Compensation Lake as being part of the LSA; therefore Shell did not analyze project effects on
the wood bison that inhabit this area for project effects. The Panel recognizes that wood bison
are no longer found on the east side of the Athabasca River.
[875] The Panel recognizes that wood bison habitat of the Ronald Lake Herd would be affected
by the compensation lake and that this might affect ACFN’s ability to hunt wood bison. The
Panel also acknowledges that ACFN provided little information about the abundance of wood
bison in that herd or about the importance of habitat that will be affected by the compensation
lake.
[876] Based on the criteria provided in the Agency’s guide, Determining Whether a Project is
Likely to Cause Significant Environmental Effects (November 1994), the Panel used the
following approach to determine the significance of project effects on wood bison:
•
The loss of wood bison habitat as a result of the Project is likely—Shell will clear the
compensation lake footprint (approximately 303 ha) and not reclaim the existing habitat for
bison.
•
The magnitude will be low—given that hundreds of hectares of habitat available to bison will
be cleared.
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•
The geographic extent is regional—given that the home range for wood bison is bigger than
the compensation lake footprint alone.
•
The duration is long term—given that the habitat will not be reclaimed for use by bison.
•
The effects on bison habitat are potentially irreversible—given that the habitat will be
flooded and not available as bison habitat.
•
The ecological context of the oil sands region where the Project is taking place has already
been adversely affected by human activities, as have wood bison. The Project footprint is
immediately adjacent to other existing and approved oil sands mines.
[877] Given this analysis and the lack of available information on the relative importance of
the Ronald Lake herd to the overall recovery of wood bison, the Panel determines that the project
effects on wood bison in the Ronald Lake herd are adverse but are unlikely to be significant,
pending further information, to be identified in the anticipated recovery strategy, on population
objectives and critical habitat of wood bison.
[878] Given that the recovery strategy is considerably overdue, the Panel recommends that the
Government of Canada consult with Aboriginal groups to help inform the federal recovery
strategy for wood bison and ensure its expeditious delivery. The Panel also recommends that
critical habitat for bison be identified in the federal recovery strategy to provide context for
future decisions on oil sands development in the Athabasca region.
Cumulative Effects
Evidence
[879] Shell’s analysis concluded that changes in the RSA from PIC to application case and
PDC will have negligible environmental consequences for wood bison abundance, attributing
bison decline to disease rather than habitat loss. Therefore, Shell said that there would be
negligible decline in wood bison abundance in the RSA from PIC to application case and the
PDC. Shell said that it did not consider cumulative effects on wood bison in the RSA to be
significant. Dr. Komers, an ACFN expert, agreed with Shell’s assertion that bison were not
habitat limited in the RSA.
[880] MCFN and ACFN stated that bison were a culturally important species. ACFN expressed
concerns about cumulative effects on wood bison in the RSA given their importance to ACFN’s
cultural practices and traditional economy and the use of the Ronald Lake herd. ACFN stated
that large, contiguous areas were essential because of the wide ranging and dispersed nature of
wildlife resources in the boreal forest, especially large ungulates such as bison. MCFN said that
the conservation areas proposed in the LARP do not protect areas that would contain
aggregations of habitat for wood bison.
[881] ACFN indicated that historically important subsistence species such as wood bison were
already at dangerously low levels, were scarcely available for traditional resource use throughout
the region, and the regional landscape is changing in ways that may lead to the disappearance of
bison altogether. MCFN indicated that its analyses demonstrated the decline of many wildlife
species, such as bison.
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Analysis and Findings
[882] The Panel is aware that bison in the RSA are already significantly affected by disease,
and that bison are currently found only on the west side of the Athabasca River. The Panel
understands from the evidence that habitat loss is not the greatest threat to wood bison.
[883] The Panel is aware that the bison are culturally important for Aboriginal people in the oil
sands region and that loss of habitat for the Ronald Lake herd may affect availability of bison in
the RSA for ACFN members to hunt. The Panel acknowledges the substantial delay in the
development of the wood bison recovery strategy, which makes it difficult to make decisions
about the importance of bison habitat in the RSA to recovery of the species as a whole.
[884] Based on the criteria provided in the Agency’s guide, Determining Whether a Project is
Likely to Cause Significant Environmental Effects (November 1994), the Panel used the
following approach to determine the significance of cumulative effects on bison based on the
application case and the PDC:
•
The loss of bison habitat in the RSA is likely—the habitat of the Redclay Compensation
Lake will be lost along with the footprints of numerous other oil sands developments on the
west side of the Athabasca.
•
The magnitude will be low—given that losses of bison habitat are in the thousands of
hectares and given that habitat loss is not the primary threat to bison.
•
The geographic extent is regional—affecting the RSA and beyond, given that bison are large
and mobile with home ranges that extend beyond the RSA.
•
The duration is long-term—given that Shell will not reclaim the habitat lost from the
Redclay Compensation Lake. Beyond that, bison are slow growing and long lived, and it may
take a long time for animals to return to other reclaimed areas after closure.
•
The effects are reversible—while the loss of habitat for the compensation lake is permanent,
other project footprints may be reclaimed.
•
The ecology of the oil sands region where the Project is taking place has already been
adversely affected by human activities.
[885] Given this analysis and the lack of information about the importance of habitat in the
RSA for wood bison and the fact that disease and past management are the most serious threats
to bison recovery, the Panel believes that there are adverse but not significant cumulative effects
on wood bison as a result of oil sands developments in the RSA.
Moose
Project Effects
Evidence
[886] Shell predicted that the project effects on moose abundance, habitat, and movement after
closure and reclamation in the LSA to be either low or negligible. Shell further stated that
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increases in upland habitat after reclamation will result in positive changes in the LSA for
moose.
[887] ACFN said that the Project will remove or affect moose habitat. Specifically, ACFN
noted that within the Project LSA, high-quality moose habitat will be impacted by direct
disturbance.
[888] Shell said that moose will not be adversely affected by the Project. According to Shell,
moose will move from the LSA to the RSA. It stated that because the RSA was below carrying
capacity, the food supply for moose will be sufficient. Shell also said that it predicted the shift in
the landscape from wetlands to upland habitats and shrubland habitats preferred by moose would
result in positive changes to moose habitat in the LSA. However, to be precautionary, Shell
stated it assessed the environmental consequences of the effects of the Project on moose as
negative and low in order.
[889] According to several ACFN members, the compensation lake may affect the migration
routes of moose and they may move to another location as a consequence. ACFN indicated that
moose and deer were increasingly avoiding the Kearl Lake area.
[890] NSFMFM and Clearwater Band stated that they hunt moose within the Project site area
and the numbers of moose have declined.
Analysis and Findings
[891] The Panel acknowledges the traditional importance of moose to Aboriginal people. The
Panel notes that clearing the Project footprint will reduce habitat for moose.
[892] Although the Panel recognizes that reclamation of the LSA may increase moose habitat,
this will not occur for many years. The Panel believes that Shell has not provided clear evidence
to support its view that the RSA is below carrying capacity, can absorb any moose displaced
from the LSA, and as such, would serve to alleviate the effects of habitat clearing.
[893] Based on the criteria provided in the Agency’s guide, Determining Whether a Project is
Likely to Cause Significant Environmental Effects (November 1994), the Panel used the
following approach to determine the significance of project effects on moose:
•
The loss of moose habitat in the LSA is likely—Shell will clear the Project footprint and
there will be a time lag for reclamation.
•
The magnitude will be moderate—given that thousands of hectares of habitat (11 995 ha of
moderate- and high-quality habitat) available to moose will be cleared by the Project.
•
The geographic extent is regional—given that the home range for moose is bigger than the
LSA alone and that their population limits extend beyond the LSA.
•
The duration is medium-term—given that moose should be able to recolonize the early seral
habitat of reclaimed uplands (e.g., 40 years). However, the ability of moose to recover after
closure will be highly linked to characteristics of their life history, e.g., longer-lived, slowergrowing species such as moose will take much longer to re-establish after reclamation.
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•
The effects on moose habitat are reversible—given that moose should be able to recolonize
reclaimed upland habitats after closure.
•
The ecological context of the oil sands region where the Project is taking place has already
been adversely affected by human activities. The Project footprint is immediately adjacent to
other existing and approved oil sands mines.
[894] Given the above analysis, the Panel determines that project effects on the LSA moose
population are adverse but are not significant.
Cumulative Effects
Evidence
[895] Shell conducted a PVA that estimated the initial abundance, carrying capacity, and
population density of the RSA for moose and used it to estimate that the moose population had
declined by 12 per cent from the PIC to both the base case and the application case, but it stated
that no reliable data on historical population trends was available for moose in the RSA. Shell’s
PVA also predicted a decline of 20 per cent from the PIC to the PDC. However, the probability
of population extirpation remains less than 0.001 per cent in all cases. Shell stated that while
there was uncertainty around population size and trends, available data do not suggest major
changes were occurring in moose population size in the RSA. Shell concluded that moderatemagnitude population declines were foreseeable for the PDC, but considered the effects on
moose from PIC to the PDC to not be significant.
[896] Shell predicted that high-, moderately high-, and moderate-quality moose habitat would
decrease by 16, 9, and 8 per cent, respectively, from the PIC to the application case. At the PDC,
Shell predicted declines of 24, 15, and 14 per cent for high-, moderately high-, and moderatequality moose habitat, respectively.
[897] Shell said that a number of factors affected moose population levels in the RSA,
including habitat, predation, access, and hunting. Shell further stated that although moose
populations in the region were declining, there is nothing to suggest that the primary cause of
this decline was habitat loss, given that habitat quality and availability suggest that moose
populations in the RSA remain well below the carrying capacity of the environment. Shell
considered that the cumulative effects of development on moose are not likely to be significant.
[898] ACFN disagreed with the results of Shell’s PVA and believed that, because of
contradictions in conclusions, Shell did not consider the traditional ecological knowledge (TEK)
provided by ACFN. ACFN said that trappers and Aboriginal people consistently report declining
moose numbers in the region, whereas Shell’s analysis predicted some growth in moose
populations. ACFN further stated that Shell’s PVA conflicts with modelling conducted in the
development of the TEMF; the modelling concluded that moose were already below their NRV
and populations will continue to decline.
[899] Fort McKay said that the TEK report filed by Shell documented that Fort McKay
members have observed declining population levels in moose. ACFN provided evidence to show
that between 1992 and 2008, an average of 42 km2 (approximately 10 moose home ranges) of
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moose habitat have been removed each year from ACFN's RSA and that moose density has
declined substantially.
[900] FMMFN #468 also noted declines in abundance of moose. FMMFN #468 indicated that
the moose population was now one quarter to one half of what it was 20 years ago and said that
this decline was a result of the development of the oil industry.
[901] OSEC provided evidence from the Dover Commercial Project EIA (2010), which stated
that unless trends are reversed, Dover estimated moose in the RSA to decline to near extirpation
after 30 years. OSEC and FMFN provided other assessments that gave the following as evidence
of declining moose populations:
•
the survey of wildlife management unit 531 by ESRD, of which about 50 per cent is within
the RSA, indicated a decline of 60 per cent in the population between 1994 and 2009; and
•
the survey of wildlife management unit 530 by ESRD, of which about 50 per cent is within
the RSA, also demonstrates declining population levels compared with past surveys.
[902] OSEC stated that Shell failed to consider in its assessment of significance the Fort
McMurray IRP, which provides a population target for moose in the RSA. Shell agreed that the
population target for moose set out in the Fort McMurray IRP would not be met and in fact, the
moose population was 50 per cent below the target.
[903] ACFN expressed concerns about cumulative effects on moose in the RSA given their
importance to ACFN’s cultural practices and traditional economy. ACFN stated that large,
contiguous areas were essential because of the wide-ranging and dispersed nature of large
ungulates such as moose and that at the regional scale the cumulative effects will result in a high
environmental consequence to moose.
[904] MCFN stated that moose were a culturally important species. MCFN expressed concern
about the cumulative effects on the health and sustainability of moose. MCFN reported that
moose in the oil sands region, specifically in the Kearl Lake area, do not taste as good as moose
from other areas, such as the Birch Mountains (80 km from the oil sands region). MCFN
expressed concern about the health of the moose and believed that fallout and dust may
contaminate the plants and contribute to the poor health of moose.
[905] ACFN also noted concerns with the health and taste of moose. For example, a member of
ACFN reported killing a moose with evidence of infection in its lungs, and other members
reported similar concerns. FMMFN #468 provided information from its members about changes
they have seen in a number of animals, including changes in colour and taste of moose meat,
tumours, and abnormal-looking organs.
[906] Shell conducted a wildlife health assessment for moose focusing on chemicals of
potential concern through inhalation, ingestion, or dermal contact. Shell stated in its wildlife
health assessment that the Project would not contribute to potential wildlife health risks.
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Analysis and Findings
[907] The Panel understands the cultural and economic significance of moose to Aboriginal
people in the RSA. The Panel recognizes that there is some evidence to suggest a decline in
moose populations from the PIC to the base case. The Panel also acknowledges that moose
populations in the RSA are predicted to decline further in the application case and PDC.
[908] The Panel notes that according to TEK, moose health is a concern and many Aboriginal
groups expressed concerns about the health of individual moose. The Panel also acknowledges
that Aboriginal groups expressed concerns about the taste of the moose.
[909] Based on the criteria provided in the Agency’s guide, Determining Whether a Project is
Likely to Cause Significant Environmental Effects (November 1994), the Panel used the
following approach to determine the significance of cumulative effects on moose.
•
The loss of moose habitat in the RSA is likely—Shell will clear the Project footprint and
numerous other projects.
•
The magnitude will be high— given that 151, 621 ha and 246 242 ha of habitat available to
moose will be cleared in the application case and PDC, respectively.
•
The geographic extent is regional—affecting the RSA and beyond, given that moose are
large and mobile with home ranges that extend beyond the RSA.
•
The duration is medium- to long-term—given that moose should be able to recolonize the
early seral habitat of reclaimed uplands (e.g., 40 years). However, the ability for moose to
recover after closure will be highly linked to characteristics of their life history, e.g., longerlived, slower-growing species such as moose will take much longer to re-establish after
reclamation, particularly if moose in the oil sands region are already in decline and there are
not as many individuals to recolonize.
•
The effects on moose habitat are reversible in the medium-term—given that moose should
be able to recolonize reclaimed upland habitat after closure.
•
The ecological context of the oil sands region where the Project is taking place has already
been adversely affected by human activities and as such, moose populations may already be
declining.
[910] Given this analysis and an expected loss of less than 20 per cent of high-quality moose
habitat at the application case, the Panel determines that the cumulative effects on the RSA
moose population are adverse but not significant. The lack of reliable population data upon
which to assess population trends was also a consideration in the significance determination.
[911] The Panel recommends that the Government of Alberta include updated management
objectives for moose for the Lower Athabasca planning region in the biodiversity management
framework being developed under LARP. The Panel also recommends that the Government of
Alberta develop and implement a program to monitor the health and long-term sustainability of
moose populations in the Lower Athabasca region, either as part of the biodiversity management
framework or as part of other monitoring initiatives currently being developed and implemented.
The Panel recommends that the Government of Alberta work with interested Aboriginal groups
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in developing the management objectives and monitoring programs for moose populations in the
Lower Athabasca region.
Migratory Birds
Project Effects
Evidence
[912] Shell’s habitat suitability models predicted that clearing the LSA would reduce habitat
available for nesting boreal birds. For all migratory birds, Shell concluded that the loss of habitat
in the LSA will have high environmental consequences during construction and operations. Shell
suggested that the environmental consequence to the abundance of Canada warbler, common
nighthawk, olive-sided flycatcher, peregrine falcon, red knot, black-throated green warbler, and
whooping crane will be low during construction and operations.
[913] Shell predicted more than 75 per cent habitat loss before reclamation for all migratory
birds it analyzed: black-throated green warbler, common nighthawk, horned grebe, olive-sided
flycatcher, rusty blackbird, and yellow rail. Shell predicted over 45 per cent high- or moderatequality habitat loss at closure for the following old-growth- and wetland-dependent species:
black-throated green warbler, common nighthawk, rusty blackbird, and yellow rail.
[914] According to Shell, yellow rail, common nighthawk, horned grebe, and rusty blackbird
will all experience decreases in high and moderate quality habitat in the LSA after reclamation.
Shell predicted that there will be high negative consequences in the LSA for rusty blackbird,
yellow rail, horned grebe, and black-throated green warbler, but high positive consequences for
Canada warbler and olive-sided flycatcher. Shell stated that after reclamation, migratory bird
populations should recover, resulting in negligible environmental consequences overall. Shell
stated that the effects of landscape change in the RSA may have contributed incrementally to
population declines in Canada warbler.
[915] EC stated that several migratory birds in the LSA are also species at risk (see appendix
10b).
[916] Shell stated that peatlands within the LSA cannot be reclaimed as wetlands; therefore, the
species of migratory birds that will be most negatively affected by the Project will be wetland
specialists, such as yellow rail, red knot, horned grebe, and rusty blackbird. Shell suggested that
species that will be less affected are those associated with upland forested habitats, such as
Canada warbler and olive-sided flycatcher.
[917] Shell predicted that many species of migratory birds will not be negatively affected by
habitat loss in the LSA because there is ample suitable habitat in the surrounding RSA that is
below carrying capacity for most species, (e.g., Canada warbler, common nighthawk, peregrine
falcon, red knot, and whooping crane).
[918] EC stated that there is no evidence to suggest that the surrounding boreal forest can
sustain increased numbers of breeding birds or that it is below carrying capacity. It stated that
cumulative effects from other proposed projects could reduce habitat availability even further.
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EC also stated that using remaining habitat in the RSA to alleviate the effects of the loss of
habitat in the LSA to migratory birds is unproven.
[919] Shell stated that it will use 100 m treed buffers around watercourses outside of the Project
development area that will maintain breeding and foraging habitat for a number of migratory
birds using these areas during the breeding season.
[920] EC stated that although a 100 m buffer may generally be sufficient to maintain movement
of forest songbirds, it may not be sufficient to maintain the overall pre-disturbance songbird
community. EC further stated that although additional research is required, buffer widths up to
200 m may be required to maintain predisturbance forest bird communities.
[921] Shell said that it used the horned grebe as a surrogate species for waterfowl given that the
grebe shares a substantial number of ecological requirements and life stages with ducks and
geese. ACFN and EC stated that Shell should have used a species of waterfowl as a KIR. ACFN
challenged Shell’s use of the horned grebe as being representative of waterfowl and stated that
other species such as the lesser scaup would be more appropriate. ACFN stated that the horned
grebe belongs to the order Podicipediformes which are not considered to be classified within the
waterfowl group. EC stated that the nesting habitat requirements of ducks and geese differ from
that of the horned grebe. Shell predicted a loss of 97 per cent of horned grebe habitat due to
construction and operations and a 58 per cent loss of high quality-habitat at closure.
[922] EC stated that it was particularly concerned about the loss of yellow rail habitat in the oil
sands region, especially in the lenticular fen complex located within and beside the northeast
corner of the LSA (see the Effects on Wetlands section). EC recommended that Shell monitor
and minimize effects of drawdown on yellow rail habitat within and beside the LSA and avoid
direct effects on yellow rail habitat wherever possible.
[923] EC stated that upland vegetation after reclamation would have relatively low biodiversity
potential and would support relatively few migratory bird species. In addition, concerns, EC
stated that the success of reclamation and recolonization of reclaimed habitats by species at risk
and many migratory birds is uncertain and, for old-growth-dependent species (e.g., blackthroated green warbler and Canada warbler), will take considerable time to achieve.
[924] EC raised the concern that alteration of Kearl Lake water levels may reduce habitat
quality on the lake for migrating and nesting birds, thereby reducing the number of birds using
the lake. It said that the alteration may increase the occurrence of birds on nearby tailings ponds,
resulting in an increased risk of mortality. EC recommended that Shell design the levee to
minimize effects on migrating and nesting birds and monitor use of Kearl Lake before and after
alteration of water levels to determine any changes in bird use.
[925] Aboriginal groups stated that the migration pathways for many waterfowl appear to have
changed in that they are no longer flying over the oil sands region or using the PAD in the same
way. EC confirmed that it has observed the shifting patterns in migration pathways but that
further study is required.
[926] EC identified whooping cranes as one of the most endangered birds in North America.
Based on a satellite telemetry study that spans spring and fall migration periods between 2010
and 2012, EC presented evidence that 40 per cent of the population migrates over the oil sands
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region and that 30 per cent of those birds landed within 1 km of a tailings pond (refer to the
Effects of Tailings Ponds on Migratory Birds section).
[927] ACFN stated that the Kearl Lake area of the Project is very important for hunting
waterfowl (refer to the Effects on Aboriginal Traditional Land Use, Rights, and Culture section).
Analysis and Findings
[928] The Panel notes that a substantial amount of habitat for migratory birds that are wetlandor old-growth-forest-dependent will either be lost entirely or lost for an extended period of time.
Many of these species are also species at risk whose numbers are declining throughout Alberta,
particularly yellow rail, rusty blackbird, and horned grebe.
[929] The Panel believes that Shell’s assumption that the RSA still has ample habitat for
migratory birds is unproven because there is no evidence to show that the RSA will be able to
absorb the influx of boreal birds whose habitat has been cleared in the LSA. Accordingly, the
Panel does not accept Shell’s determination of project effects on migratory birds as being not
significant. The Panel also notes that several affected boreal migratory birds are species at risk,
for which a requirement to mitigate adverse effects arises under section 79 of SARA.
[930] The Panel remains unclear about Shell’s intended mitigation of project effects on nesting
birds by establishing 100 m buffers “outside of the project development area” because it does not
know how a mitigation measure outside of the Project development area can mitigate project
effects on migratory birds, or how Shell plans to influence buffer size outside of the Project
development area. The Panel is unclear as to why Shell has chosen to list this as a mitigation
measure.
[931] Given that Shell considered the horned grebe to be a surrogate waterfowl KIR and that
Shell predicted large declines in high-quality habitat loss in the LSA after reclamation (58 per
cent) for this species, the Panel finds that there is a potential for large-scale losses to waterfowl
habitat after reclamation. The Panel recognizes that loss of waterfowl habitat may have important
ramifications for Aboriginal hunting and use of the species.
[932] The Panel understands that Shell chose the black-throated green warbler as a KIR to
represent boreal songbirds and that predicted large-scale declines for this species in the LSA may
indicate the potential for similar declines for the many species of boreal songbirds that use the
LSA.
[933] The Panel recognizes that the Project area does not provide critical habitat for endangered
whooping cranes (nesting or overwintering), therefore habitat loss is not an issue for this species.
However, the Panel has noted that should species at risk land in a tailings pond, a significant
effect would occur (refer to the Effects of Tailings Ponds on Migratory Birds section).
[934] Based on the criteria in the Agency’s guide, Determining Whether a Project is Likely to
Cause Significant Environmental Effects (November 1994), the following approach was used to
determine the significance of project effects on migratory birds.
•
The loss of migratory bird habitat in the LSA is likely—the Project footprint will be cleared
and there will be substantial habitat loss.
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•
The magnitude will be moderate—given that thousands of hectares of habitat available to
migratory birds will be cleared.
•
The geographic extent is regional—given that populations of migratory birds extend beyond
the boundary of the LSA and their population limits extend beyond the LSA.
•
The duration is long-term—given that the timeframe for much migratory bird habitat
(wetlands and old-growth) to return to its former biodiversity and function is more than 80
years and that peatland restoration is still not demonstrated for oil sands projects. In addition,
the ability for migratory birds to recover in the LSA after closure will be highly linked to the
health of populations in the RSA, and current evidence suggests some substantial declines
several migratory birds in the oil sands region.
•
The effects are potentially irreversible—given that there is no evidence that peatlands can be
successfully reclaimed, and peatlands constitute 85 per cent of wetland habitat lost in the
LSA which acts as habitat for migratory birds. In addition, the time lag to restoration of oldgrowth forests (which provides nesting habitat for boreal birds), is well beyond 80 years.
There is also no evidence in the oil sands region that old-growth forest can be restored to its
former complexity and biodiversity. Furthermore, some of the species at risk may decline to
the point where they can no longer re-establish in the LSA.
•
The ecology of the oil sands region where the Project is taking place has already been
adversely affected by human activities. The Project footprint is immediately adjacent to other
existing and approved oil sands mines.
[935] Given this analysis and the lack of proposed mitigation measures shown to be effective,
the potential inability to reclaim certain habitats to base case conditions, the decline of many
migratory bird species in the oil sands region, and effects on migratory birds that are species at
risk described herein, the Panel finds significant adverse project effects on some migratory birds,
particularly wetland-reliant wildlife species and species at risk.
[936] The Panel recommends that before other provincial and federal approvals are issued, the
Governments of Canada and Alberta cooperatively consider the need for conservation offsets to
address some of the likely significant adverse effects of the Project, including effects on some
migratory birds.
Cumulative Effects
Evidence
[937] Shell predicted that changes in the land cover of the RSA from PIC to application case
and the PDC would have a moderate to high adverse environmental consequence on the
abundance of wetland-dependent species, namely horned grebe, olive-sided flycatcher, rusty
blackbird, and yellow rail. Shell stated that the resilience of populations of these species in the
RSA has not been compromised and that high-suitability habitat remains for these species in the
RSA.
[938] Shell chose the black-throated green warbler as a KIR that was representative of oldgrowth forest birds. The black-throated green warbler is used by CEMA’s Sustainable
Ecosystems Working Group as an environmental indicator for the bird community. Shell
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predicted that cumulative effects on the black-throated green warbler are significant and adverse
in both the application case and the PDC, given 35 and 41 per cent declines to high and moderate
habitat, respectively in the application case, and 44 and 51 per cent declines to high and
moderate habitat, respectively in the PDC. Shell also predicted high-magnitude declines in
abundance for this species, which would be of high environmental consequence. Shell stated
that, therefore, it considered effects on the black-throated green warbler population in the RSA
significant and adverse, given that available data suggest that black-throated green warbler
populations in Alberta may be declining to extirpation, potentially because increased
development in Alberta.
[939] Shell chose the horned grebe to represent waterfowl species. Shell predicted moderate
and high consequence to horned grebe habitat given 19 and 26 per cent declines in high-quality
habitat, respectively in the application case and the PDC. Shell identified a moderate-magnitude
decline in horned grebe abundance in the RSA from the PIC to the application case, and a highmagnitude decline in abundance from the PIC to the PDC. However, Shell did not consider the
effects on horned grebe likely to be significant given that resilience of this species in the RSA
has not been compromised.
[940] Shell chose yellow rail as a KIR to be a representative of the marsh-bird community and
a riparian health indicator. Yellow rail is also a species of special concern under SARA. Shell
found declines in yellow rail high-quality habitat of 20 and 27 per cent in the application case
and PDC, respectively; however, given the amount of remaining high-suitability habitat in the
RSA and estimated population trends, Shell concluded that it is unlikely that the resilience of
yellow rail populations in the RSA would be compromised to the point where they are no longer
self-sustaining and ecologically effective. Shell conducted partial field surveys (not completed
because of forest fires) to find yellow rail in 2009, and four individuals were located in fen
habitats in the LSA.
[941] Shell found adverse effects on Canada warbler in the RSA in the application case given
declines in habitat of 49 and 34 per cent for high- and moderate-quality habitat, respectively. In
the PDC, Shell predicted that Canada warbler will have 61 and 45 per cent losses in high- and
moderate-quality habitat, respectively in the PDC. Shell stated that the effects of landscape
change in the RSA may have contributed incrementally to population declines in Canada
warbler. However, Shell concluded that the resilience of populations of this species in the RSA
has not been affected; therefore the cumulative effects are considered adverse but not significant.
[942] Shell stated that after reclamation there would be increases in high-suitability habitat for
Canada warbler, olive-sided flycatcher, and black-throated green warbler relative to conditions
before reclamation given their association with mature forest stands. However, Shell said that the
black-throated green warbler could become extirpated in the timeframe of the Project given
current declines in Alberta. Shell also predicted decreases in habitat for horned grebe, rusty
blackbird, short-eared owl, and yellow rail given the loss of wetlands; however, Shell stated that
these species are not limited by habitat in northeastern Alberta, therefore did not expect regional
populations to change.
[943] EC stated that several studies and analyses have demonstrated high levels of existing and
potential future habitat loss and possible adverse effects on migratory birds in this region. EC
stated that it is concerned about the level of habitat loss that Shell has identified both in the
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application case and the PDC, specifically for Canada warbler, yellow rail, and rusty blackbird.
EC stated that these effects will be long-term and possibly permanent, depending on the success
of reclamation and particularly for wetland-dependent species such as the yellow rail.
[944] EC stated that the population-level consequences of cumulative habitat loss in the RSA
are unknown for most migratory birds; however, habitat loss can contribute to population
declines. In particular, EC noted that populations of many migratory birds are already declining
in Alberta, including Canada warbler, common nighthawk, olive-sided flycatcher, and blackthroated green warbler.
[945] Shell provided a recent report from the Alberta Biodiversity Monitoring Institute (ABMI)
on the status of land birds in Alberta’s boreal plains ecozone. The report stated that the status of
74 common land birds (including forest specialists, neotropical migrants, species at risk, and
human-associated birds) in the oil sands region was 85 per cent intact relative to undisturbed
conditions. Intactness is a measure of how closely the actual abundance of a species compares to
the number of individuals expected to be found in an area without human disturbance.
[946] OSEC pointed out that the ABMI report sampling locations, showing areas of 85 per cent
intact land bird populations, did not include areas where there was oil sands development. OSEC
also stated that the ABMI document does not present a picture of future changes to land birds in
the region because it represented only past and current conditions and does not show the
potential effects of future development to the region, including the Project and other projects that
have been approved but not yet built.
[947] Shell acknowledged that ACFN participants in a 2005 CEMA-sponsored workshop
provided some TEK describing the decline of migratory birds in the PAD. ACFN suggested that
the decline in migratory bird abundance and changes in migration routes are affecting the spring
hunt in the oil sands region and specifically in the PAD. ACFN said that waterfowl serve as a
signpost for the health of the PAD and the Athabasca River.
[948] Shell stated that its assessment of baseline conditions indicated no decline in the number
of migratory birds in the PAD. Shell mentioned that it did not integrate ACFN’s TEK in its EIA
because it did not match the baseline data.
[949] ACFN said that intentional disturbance of birds and flyways through use of deterrent
cannons on tailings ponds may further adversely impact the current or potential availability of
migratory birds for ACFN use in the RSA. ACFN proposed that the following factors could all
contribute to the change of migration routes of birds:
•
large areas along the Athabasca River that are cleared of vegetation
•
large plumes of dust, bad-smelling smoke, and pollution in the air
•
large amounts of reflective metal and numerous large, noisy, brightly coloured vehicles
constantly moving
•
nearly constant noise that increases because of cannons and bird deterrent systems as birds
fly overhead
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[950] EC stated that the migration routes of birds may be changing and this change could affect
the availability of these birds in the PAD. According to EC, the oil sands industry may or may
not be contributing to change in the migration routes and to decline of migratory birds in the
PAD, as the reasons for the changes in the migration routes are not clear.
[951] The Métis suggested that air pollution generated by the oil sands industry is responsible
for changes in the number of birds in the region.
[952] FMMFN #468 also noted declines in abundance of migratory birds.
[953] MCFN stated that migratory birds are culturally important species. MCFN expressed
concern about the cumulative effects on the health and sustainability of migratory birds. MCFN
members reported changes in migratory bird patterns, particularly with respect to ducks and
geese, and overall declines in the availability of migratory birds as a result of oil sands
development. MCFN reported that these changes have adversely affected the quantity of birds
available for the MCFN spring and fall bird hunt, particularly in the PAD.
Analysis and Findings
[954] The Panel recognizes that Shell found substantial loss of high- or moderate-quality
habitat (i.e., more than 20 per cent) for five of seven migratory birds it assessed from the PIC to
application case and for six out of seven from the PIC to PDC. Among those species are the
KIRs Shell chose to represent old-growth forest birds, marsh birds, and waterfowl. Given the
relatively high levels of habitat loss predicted, the Panel is concerned about cumulative effects of
habitat loss on these three guilds of migratory birds.
[955] The Panel notes that Shell’s primary reason for not indicating significant adverse effects
on most species of migratory birds is based on the assumption that there is ample habitat in the
RSA. As previously discussed, the Panel does not believe that Shell has provided sufficient
evidence to support its view that there is adequate habitat for migratory birds in the RSA,
particularly given future planned developments. The Panel also notes that according to EC, many
species of migratory birds are already experiencing declines in the oil sands region. Although the
Panel recognizes that the recent work of the ABMI indicates a relatively high level of intactness
for land birds in the oil sands region, the Panel believes that this document provides only a
snapshot of the recent past. It does not reflect projects that have been approved but not yet built,
and as such, the future development scenario in the region may lead to changes in this degree of
intactness.
[956] The Panel notes that most migratory birds with the greatest loss of habitat (i.e., have more
than 20 per cent habitat loss) are also species at risk (rusty blackbird, olive-sided flycatcher,
Canada warbler, yellow rail, and horned grebe). The Panel recognizes the requirements under
SARA to mitigate any effects on species at risk.
[957] The Panel understands the cultural significance of migratory waterfowl to Aboriginal
people. The Panel recognizes that Aboriginal people have said that there are considerable
declines in waterfowl in the PAD.
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[958] The Panel is concerned about substantial predicted declines in horned grebe, a KIR
chosen by Shell to represent waterfowl. The Panel agrees with EC that the reasons for changes in
the migration routes of waterfowl are not yet understood and that more study is required.
[959] Based on the criteria provided in the Agency’s guide, Determining Whether a Project is
Likely to Cause Significant Environmental Effects (November 1994), the Panel used the
following approach to determine the significance of cumulative effects on migratory birds.
•
The loss of migratory bird habitat in the RSA is likely—Shell will clear the Project footprint
and there will be substantial habitat lost from other projects in the region. Shell predicted
more than 20 per cent habitat loss for five out of seven migratory birds for the application
case.
•
The magnitude will be high—given that hundreds of thousands of hectares of habitat
available to migratory birds will be cleared.
•
The geographic extent is regional—given that population limits of migratory birds extend
well beyond the boundary of the RSA, and many species migrate to southern North America
and South America.
•
The duration is long-term—given that the timeframe for much migratory bird habitat
(wetlands and old-growth) to return to its former biodiversity and function is more than 80
years, and peatland restoration is still not demonstrated for oil sands projects. In addition, the
ability of migratory birds to recover in the RSA will be highly linked to the health of
populations in the RSA, and currently evidence suggests some substantial declines in several
migratory birds in the oil sands region (e.g., black-throated green warbler, rusty blackbird).
•
The effects are potentially irreversible—given that there is no evidence that peatlands can be
successfully reclaimed and the time to restore of old-growth forests is well beyond 80 years,
both of which provide habitat for migratory birds. There is also no evidence in the oil sands
region that old-growth forest can be restored to its former complexity and biodiversity.
Furthermore, evidence suggests that many species of migratory birds are already declining in
the oil sands region (e.g., black-throated green warbler) and may not be able to recover after
reclamation.
•
The ecological context of the oil sands region where the Project is taking place has already
been adversely affected by human activities, and as such, many species of migratory birds are
already undergoing regional declines.
[960] Given this analysis and the lack of proposed mitigation measures shown to be effective,
the potential inability to reclaim migratory bird habitat to PIC or base case conditions, the current
decline of many migratory bird species in the oil sands region, and effects on migratory birds
that are species at risk described herein, the Panel finds significant adverse cumulative effects on
some migratory birds, particularly old-growth- and wetland-reliant wildlife species.
[961] The Panel recommends that the Governments of Canada and Alberta, in collaboration
with interested Aboriginal groups and stakeholders, initiate a joint effort to determine whether
the waterfowl population in the oil sands region has declined and whether migration routes have
changed. If results demonstrate that there has been a decline, or if routes have changed, the Panel
recommends that the Governments of Canada and Alberta work together to determine the causes.
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[962] The Panel recommends that the Government of Canada conduct studies to estimate
abundance, density, and carrying capacity of the oil sands region for migratory birds.
EFFECTS ON BIODIVERSITY
Project Effects
Evidence
[963] Shell stated that during construction and operations, environmental consequences for all
levels of biodiversity in the LSA would be high. Specifically, Shell predicted that the Project and
Phase 1 collectively, would result in a 74 per cent decrease in areas of high biodiversity potential
at closure (a loss of 5 810 ha) and a 9 per cent decrease in areas of moderate biodiversity
potential (787 ha), primarily as a result of the removal of peatlands and the inability to reclaim it.
Shell stated that the following would result from a loss of wetlands:
•
a loss of areas high in biodiversity potential
•
reductions of rare plants
•
reductions in habitat for species such as the rusty blackbird, horned grebe, and yellow rail
Reclamation Plans
[964] Shell stated that it would reclaim many areas as upland habitat consisting of terrestrial
vegetation types ranked low for biodiversity potential. Shell concluded that while the reclaimed
landscape would support a lower level of biodiversity compared with the predevelopment
landscape, the environmental consequences for all levels of biodiversity in the LSA would be
moderate at closure.
[965] EC confirmed that upland vegetation communities would have relatively lower
biodiversity potential than the current lowland-dominated systems.
[966] Shell presented a plan that would apply planting prescriptions based on aspect, moisture,
and nutrient regime created by the landform and watershed design. As part of this plan, Shell
committed to provide a diverse range of plant species at the start of reclamation to increase the
potential of reclaimed sites to evolve into systems with levels of diversity consistent with the
predevelopment state. Shell stated that it expected that vegetation diversity would increase over
time through processes of dispersal, vegetation succession, and natural disturbance.
[967] ACFN stated that it was concerned about reclaimed sites being planted with a low
number of species compared with the species diversity sampled before disturbance. ACFN was
also concerned that natural succession processes will not be set in motion if Shell uses its simple
planting prescriptions. ACFN also stated that it did not believe that diversity will return over
time through the natural ingress of species and that it was likely that diversity will remain at the
level initially reclaimed by Shell.
[968] EC stated that there was a great deal of uncertainty about whether species will recolonize
some upland habitats in the long term.
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[969] Shell stated that it expected emergent properties such as biodiversity, structural
complexity, and microbiotic activity would continue to develop on the reclaimed landscape over
time. Shell further stated that it would use reclamation techniques such as woody-debris
placement to enhance reclamation diversity and ecosystem function. Shell stated that while its
own mines were too young to prove reclamation is effective, other mines in the region have been
successful at this.
[970] Shell also presented plans to include large constructed wetlands at closure. OSEC
provided evidence from wetland biologists who concluded that the marsh wetlands planned for
post-closure leases will not achieve the biodiversity of the preindustrial sites. OSEC was
concerned that losses to biodiversity will be greatest where wetlands are lost given that reclaimed
wetlands in the region to date are salt marshes low in species diversity compared with the
predisturbance peatlands. OSEC also stated that even if reclamation were to succeed in reducing
wetland loss by area, the Panel should assume that the biodiversity value of this landscape would
be significantly less.
[971] In response to statements by ACFN and OSEC that reclamation does not work and cannot
return a landscape to equivalent habitat, Shell stated that the reclamation requirement in Alberta
is not to create a landscape that is identical to the predisturbed state but to re-establish a
functional landscape that provides equivalent land capability.
Biodiversity Monitoring
[972] ACFN and Fort McKay recommended that the Panel require Shell to provide monitoring
that would demonstrate and measure the progress in achieving biodiversity levels equal to
predisturbance conditions on terrestrial and wetland reclamation lands, including the use of
reclaimed land by wildlife and fish species.
[973] EC recommended that Shell support regional biodiversity monitoring initiatives, such as
the Joint Canada-Alberta Implementation Plan for Oil Sands Monitoring that includes terrestrial
biodiversity monitoring and is expected to be fully implemented by 2015.
[974] Shell confirmed that it supported this joint monitoring program.
Impact to Patterned Fens
[975] Shell stated that a unique lenticular patterned fen is in the north east corner of the LSA
and that 101 ha of the fen (16 per cent of the resource) would be directly affected by mine
clearing and 541 ha of the fen (84 per cent of the resource) would be affected by drawdown.
Shell also predicted that surficial aquifer drawdown as a result of the Project would extend up to
3.5 km west of the boundary of the LSA and that this would affect fens beyond the chosen LSA.
[976] EC stated that the fen had high biodiversity value and that it supported several
provincially rare plant species. It recommended that Shell monitor and minimize effects of
drawdown on the lenticular patterned fen.
[977] Shell stated that it was not aware of any similar plant communities in the RSA.
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Biodiversity Framework under LARP
[978] Shell stated that the biodiversity management framework under LARP will provide
direction for mitigating biodiversity loss in the oil sands region.
[979] OSEC maintained that no biodiversity or land disturbance standards have yet been
developed under LARP and that in the absence of those frameworks, LARP provides no
protection for terrestrial resources in the RSA. First Nations and OSEC said that it may be a
significant period of time before the biodiversity management framework is completed and
accepted by the Government of Alberta. According to OSEC, LARP also failed to provide
guidance regarding the thresholds for important considerations such as habitat loss, wildlife
abundance, and land disturbance. OSEC recommended that the Project be delayed until the
LARP biodiversity management framework is produced.
[980] OSEC further noted that the Fort McMurray Athabasca Oil Sands IRP is still the guiding
plan for the region and that several of the IRP objectives include enhancing the diversity of
habitat and wildlife resources for Aboriginal subsistence. OSEC stated that the CEMA TEMF
represents the most appropriate guidance for the Panel in determining whether proposed wildlife
effects are in the public interest and to inform the broad IRP directive to maintain wildlife
habitat.
Conservation Offsets
[981] OSEC recommended that Shell be required to address effects using a mitigation strategy
that includes a biodiversity offset strategy for addressing wetland disturbance and loss of oldgrowth forest. Specifically, OSEC requested that the strategy include the retiring of harvesting
rights on public lands at a ratio of 3:1 using accepted models for biodiversity offsets used
elsewhere.
[982] Shell disagreed that conservation allowances are required to mitigate the effects of the
Project. Shell stated that it would comply with the LARP biodiversity management framework
when it is finalized.
[983] EC stated that the use of conservation allowances to mitigate direct and indirect habitat
loss for species at risk and migratory birds is one option that could be considered. EC further
offered to help the province, if invited, to help understand what offsets might apply to preserving
biodiversity.
Analysis and Findings
[984] The Panel interprets biodiversity to refer to the totality of genes, species, and ecosystems
of a region. Therefore, the effects on biodiversity examined in this section reflect a synopsis of
project effects previously described in the Effects on Wetlands, Effects on Old-growth Forests,
Effects on Traditional Plant Potential Areas, and Effects on Wildlife and Their Habitat sections.
In assessing Project and cumulative effects on biodiversity, the Panel has considered effects at
the species, community (ecosystem), and landscape levels.
[985] The Panel recognizes the concerns of OSEC and Aboriginal groups about the potential
adverse effects of the Project on biodiversity in the LSA.
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[986] The Panel acknowledges that Shell has committed to
•
follow the Guidelines for Reclamation of Terrestrial Vegetation in the Oil Sands Region,
•
comply with the LARP biodiversity management framework when issued,
•
support the Alberta Biodiversity Monitoring Institute,
•
support the Joint Canada-Alberta Implementation Plan for Oil Sands Monitoring, and
•
develop a biodiversity monitoring program to monitor the success of reclamation and
establishment of biodiversity for the Project.
[987] The Panel notes that it is difficult to determine how much high-, moderate-, and lowbiodiversity potential habitat will be lost as a result of the Project given that Shell provided
values for the MRDA and included the areas for both Phase 1 and the Project. However, the
Panel believes that there appears to be a high potential for significant loss of biodiversity based
on overall wildlife habitat loss, the time lag between disturbance and reclamation, and the
unproven methods for reclamation of peatlands and old-growth forest. In particular, the Panel
believes that the loss of the lenticular patterned fen in the LSA appears to be a significant issue,
given the high biodiversity value of the fen and its rarity in the regional landscape.
[988] The Panel believes that project effects on biodiversity at the local (LSA) level cannot be
evaluated without considering the effects of other projects beside or close to the Project. As
discussed elsewhere in this report, several large, existing and approved mines are close to or
beside to the Project, including Shell’s MRM, Syncrude’s Aurora North and South Mines,
Imperial’s KOSP, and FHOSP (yet to be developed). In summary, the Project is nearly
surrounded by other large oil sands developments but Shell has not explicitly discussed this as
part of the ecological context for the assessment of biodiversity at the local level. The
significance of project effects on biodiversity must include consideration of those other projects
immediately beside or close to the Project that also contribute to a loss of habitat and
biodiversity.
[989] The Panel believes that loss of wildlife habitat and reductions in species abundance
resulting from the Project will result in an overall decrease in biodiversity values for the local
area, including the LSA. The Panel believes that the lack of mitigation measures proposed by
Shell for project effects that have been shown to be effective and the inability to reclaim wetland
habitats to their former levels of biodiversity intensifies the issue. Furthermore, the Panel
believes that the loss of wildlife habitat and species abundance resulting from other projects
immediately beside or close to the Project contribute to the significance of effects on biodiversity
at the local level.
[990] The Panel notes that the Project will have a life of about 40 years. After closure and
reclamation, it will take at least several decades for natural processes to re-establish levels of
biodiversity similar to those found before development. The Panel also believes that there is a
level of uncertainty related to reclamation success, including the degree and rate at which species
will recolonize and use the reclaimed landscape.
[991] The Panel understands that Alberta intends to establish under LARP, by the end of 2013,
a biodiversity management framework that will set targets and thresholds for biodiversity
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indicators, including vegetation, aquatic components, and wildlife in order to maintain ecosystem
function and landscape connectivity. The Panel acknowledges that the pending LARP
biodiversity management framework represents the Government of Alberta’s desire to take a
regional approach to managing cumulative effects and implementing standards for biodiversity.
While the Panel notes that the biodiversity management framework may include an objective to
avoid or mitigate land disturbance to biodiversity, currently no biodiversity standards have been
developed under LARP.
[992] The Panel understands the concern of OSEC and Aboriginal groups that the proposed
biodiversity management framework under LARP is not yet available and that in the absence of
the proposed framework under LARP, Shell should use the current TEMF, which provides the
most appropriate guidance for managing wildlife resources in the oils sands region, including
thresholds for wildlife habitat loss.
[993] Based on the criteria provided in the Agency’s guide, Determining Whether a Project is
Likely to Cause Significant Environmental Effects (November 1994), the Panel used the
following approach to determine the significance of project effects on biodiversity in the LSA.
•
The decrease in high and moderate levels of biodiversity in the LSA is likely—the Project
footprint will be cleared, and after reclamation landscape levels of biodiversity will not reach
similar levels.
•
The magnitude will be high—given a 5810 ha loss of high biodiversity areas that cannot be
reclaimed.
•
The geographic extent is regional—given that the lenticular fen appears to be unique in the
RSA and that effects of drawdown as a result of the Project will extend beyond the LSA.
•
The duration is long-term—given that the time frame to restore biodiversity to wetlands is
greater than 80 years and peatland restoration is still not demonstrated for oil sands projects.
•
The effects are irreversible in the medium- to long-term—given that it appears that levels
of biodiversity will not return to base case levels or have the same suite of species or
ecosystems without a significant time lag (about 80 years). There is also no evidence from
the oil sands region to suggest that reclaimed ecosystems can return to their former
preindustrial complexity and biodiversity.
•
The ecology of the oil sands region where the Project is taking place has already been
adversely affected by human activities, and some habitats may be particularly fragile given
the inability of it to be reclaimed (e.g., lenticular fen). The Project footprint is immediately
beside to other existing and approved oil sands mines.
[994] Given this analysis and the lack of proposed mitigation measures for habitat loss that
have been demonstrated to be effective, the inability to reclaim certain habitat types to predevelopment biodiversity levels, the long lag time between disturbance and restoration of
biodiversity levels, and the effects on wildlife, vegetation, and wetlands described elsewhere in
this document, the Panel finds a significant adverse effect on biodiversity in the LSA.
[995] As discussed in previous sections of this report, the Panel is concerned about the lack of
mitigation shown to be effective proposed for loss of wildlife habitat in the LSA, particularly for
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migratory birds that are wetland-reliant or species at risk. The Panel believes that without
additional mitigation, significant adverse effects on species abundance and diversity will occur.
The Panel believes that these adverse project effects will contribute to adverse effects on
biodiversity as well. Although the Panel recognizes that LARP and other regulations and policies
of the Government of Alberta do not currently mandate the use of conservation offsets in the oil
sands region, given that few options are available for avoiding or minimizing the adverse effects
of large surface mines, the Panel believes that conservation offsets may need to be considered.
[996] The Panel has already recommended that before any other provincial and federal
approvals are issued, the Governments of Canada and Alberta cooperatively consider the need
for conservation offsets. When considering the need for conservation offsets, the Panel
recommends the Governments of Canada and Alberta also consider the need to preserve the suite
of species and ecosystems in the region and to maintain local and regional biodiversity. The
Governments of Canada and Alberta should also consider the need to preserve unique
environments and species such as those found in the lenticular fen.
[997] The Panel recommends that ESRD ensure that, in addition to using commercially
available vegetation, Shell initially be required to plant more species and implement measures
such as seed collection, direct seeding, and planting stock from cuttings or seed, instead of
relying more heavily on the natural ingress of species to return biodiversity to reclaimed
landscapes.
[998] The Panel notes that Shell will be subject to the LARP biodiversity management
framework when it is released. The Panel recommends to ESRD that Shell be required to
develop a biodiversity monitoring program and report progress and program results as part of its
closure and reclamation annual report. In order to protect biodiversity, the Panel expects Shell to
modify its mitigation strategies based on the findings of the program.
[999] The Panel recommends that the Government of Alberta work toward timely completion
of the LARP biodiversity management framework, including a reporting and monitoring structure
to ensure that relevant parties such as Shell are in compliance.
Cumulative Effects
Evidence
[1000] Shell stated that during construction and operations in the application case, at an
ecosystem level, high-biodiversity potential areas would decrease by 78 223 ha (14 per cent of
the resource within the RSA) compared with the PIC. Shell noted that in the base case, 65 128 ha
of high-biodiversity habitat had already been lost (12 per cent of the resource). Given the loss of
non-treed wetlands and treed fens that cannot be reclaimed, the decrease in high-biodiversity
potential areas would be 71 884 ha (13 per cent) at closure compared with PIC. Likewise,
moderate-biodiversity potential areas would decrease compared with the PIC by 129 179 ha (15
per cent of the resource within the RSA) during construction and operations. Shell noted that at
base case, there was a loss of 119 534 ha of moderate-quality biodiversity potential compared
with the PIC (14 per cent of resource). At closure there would be a net decrease in moderatebiodiversity potential areas of 14 per cent (121 297 ha). Shell indicated that the only moderateranked land cover class that would increase at closure relative to PIC is water. Only lowbiodiversity potential areas would increase relative to the PIC (22 per cent), largely as a result of
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cut blocks and disturbance areas. At closure, Shell ranked ecosystem effects as having a
negative, moderate environmental consequence.
[1001] Shell said that given the increased level of disturbance in the application case since the
PIC, the potential for permanent change in ecosystem function as a consequence of regional
development exists, yet Shell stated that a biodiversity management framework (i.e., LARP) for
the Lower Athabasca that might define acceptable effect thresholds is currently not available.
Shell concluded that it is unlikely that an unacceptable threshold has been reached for
ecosystem-level biodiversity in the RSA given the areal extent of the resource remaining.
Therefore, according to Shell, it did not consider the change in ecosystem-level biodiversity from
PIC to the application case a likely significant adverse effect.
[1002] OSEC stated that in the absence of the LARP biodiversity management framework, Shell
should have relied on existing guidance in the IRP and the TEMF to assess significance of effects
on wildlife (see Effects on Wildlife and Their Habitat).
[1003] Shell indicated that at a landscape level, there would be a net decrease of 147 191 ha (19
per cent) of terrestrial land covers in the RSA from PIC to application case at closure. All
terrestrial land cover types would decrease in the area except for coniferous jackpine-black
spruce. There would also be a net decrease of 119 532 ha (12 per cent) of wetlands in the RSA
over the same period, and the largest decrease would occur because of the removal of treed fens.
Disturbed landscapes would show the greatest increase from PIC to application case closure,
changing from 1621 ha to 288 497 ha. Shell stated that at both the ecosystem and landscape
level, a large portion of effects on biodiversity from the PIC to the application case are due to
changes that have already occurred from PIC to base case (e.g., 154 814 ha, and 109 254 ha of
habitat of terrestrial and wetland habitats, respectively were already lost in the base case).
[1004] At closure, Shell ranked species effects as having a negative, moderate environmental
consequence. Shell stated that it considered that species-level biodiversity from PIC to
application case would not be significantly and adversely affected because it was unlikely that
the resilience of plant and wildlife populations in the RSA would be compromised to the point
that they were no longer self-sustaining and ecologically effective.
[1005] OSEC viewed residual adverse effects on biodiversity in the RSA for the application case
as significant for species-, ecosystem-, and landscape-level effects.
[1006] OSEC stated that the TEMF provides recommendations for managing wildlife in the oil
sands region and more specifically the RMWB. According to TEMF, the key environmental
management objective for the RMWB is to maintain wildlife indicators within 10 per cent below
the lower limit of the NRV. According to OSEC, rates of habitat loss of more than 20 per cent
would surpass this threshold, and using this rationale, 9 out of 19 species would have habitat
losses exceeding the threshold under the application case. Therefore, losses of more than 20 per
cent of high- and moderate-biodiversity potential would surpass this threshold.
[1007] At an ecosystem level, Shell stated that before reclamation, high-biodiversity potential
areas would decrease by 116 987 ha in the RSA (22 per cent of the resource within the RSA) as a
result of the PDC. After reclamation, there would be an overall net decrease in high biodiversity
potential of 55 073 ha (10 per cent of the resource), largely as a result of being unable to reclaim
treed fens. However, Shell stated that at closure there would be a slight increase in non-treed
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wetlands given inclusion of shrub lands and littoral zone into this category. Similarly, Shell
stated that areas of moderate biodiversity potential before reclamation at the PDC would
decrease by 173 845 ha (21 per cent of the resource) compared with the PIC. After reclamation,
there would be an overall net decrease in moderate biodiversity potential areas of 28 038 ha
(3 per cent of the resource), with the greatest loss being to treed bog and poor fen. There would
be a net increase of 83 830 ha (9 per cent of the resource) in low-ranked areas of biodiversity
potential in the PDC after reclamation.
[1008] At a landscape level, Shell predicted that there would be a negative residual effect on
both wetlands and old-growth forests resulting in a low environmental consequence in the PDC
compared with the PIC. Although Shell determined that the environmental consequence of
species-level effects was high, Shell concluded that effects on all three levels of biodiversity
(species, ecosystem, and landscape) within the RSA due to the PDC would not be significant. As
with the application case, Shell based this conclusion on the following assumptions:
•
the resilience of plant and wildlife populations in the RSA will not be compromised to the
point where they are no longer self-sustaining and ecologically effective; and
•
it is unlikely that an unacceptable threshold has been reached for ecosystem-level
biodiversity in the RSA given the areal extent of the remaining resource.
[1009] OSEC stated that given the growing list of proposed oil sands projects and modelling of
future forestry and fire disturbances, the latest EA predictions from Shell now show higher levels
of cumulative effects on wildlife and biodiversity at the regional level than in any oil sands
assessment previously tabled. For example, OSEC pointed out that under Shell’s modelling, 11
out of 19 species at risk and KIRs will have habitat losses greater than 20 per cent under the PDC
scenario and would therefore surpass the threshold given in the TEMF. OSEC also noted that
Shell’s PDC underestimates future development in the RSA given that it does not include all
reasonably foreseeable disturbances such as mandatory exploration on oil sands leases.
[1010] OSEC also said that the significant effects Shell identified in its updated assessment are
consistent with those identified by the Government of Alberta in scenario modelling conducted
as part of the Lower Athabasca regional planning process. This report shows that under a base
case scenario where mitigation is not improved or proposed oil sands mining developments are
not slowed, a 50 per cent loss in biodiversity indicators is projected.
[1011] Fort McKay stated that biodiversity is critical because it reflects the integrity of the
landscape and ecosystems that support traditional activities. Lands ranked with high biodiversity
potential have decreased in the Fort McKay Specific Assessment area (40 Township) by 26 per
cent between 1960 and 2007, suggesting cumulative effects already exist. The Fort McKay
Specific Assessment further indicated that the principal stressor adversely affecting biodiversity
is land disturbance.
[1012] ACFN stated that Shell's assessment of the cumulative effects of multiple projects on
wildlife was inadequate. ACFN was concerned that Shell’s impact assessment relied on the
belief that effects on wildlife and vegetation will be reversible but that Shell provided no
substantive evidence to support this. Further, ACFN indicated that Shell did not intend to verify
its predictions in the field for biodiversity, rendering its analysis largely theoretical and not
useful for understanding effects on biodiversity.
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[1013] EC shared the same concerns as those expressed by Aboriginal groups about the potential
cumulative environmental effects of oil sands development in northern Alberta on biodiversity.
Analysis and Findings
[1014] The Panel noted previously that the methods Shell used for estimating land-cover type in
the RSA are subject to an error of ±20–25 per cent due to the coarse nature of Landsat imagery.
The Panel notes that Shell’s analysis of cumulative effects is based on assumptions of
biodiversity potential linked to areas of specific land-cover type as determined by Landsat
imagery, and that this level of uncertainty likely translates into Shell’s estimates of areas of high,
moderate, and low-biodiversity potential. The Panel therefore believes that Shell’s predictions of
changes in biodiversity potential at operations and closure should be considered to be somewhat
uncertain, with ±20–25 per cent error.
[1015] The Panel acknowledges that from PIC to the application case, 14 per cent of areas of
high and 15 per cent of areas of moderate-biodiversity potential will be lost before reclamation.
After reclamation, this will decrease to 13 and 14 per cent of the high- and moderate-resource
areas in the RSA, respectively. Similarly, the Panel recognizes that from PIC to PDC, 22 and 21
per cent of these high and moderate biodiversity potential areas respectively will be lost before
reclamation. After reclamation, this loss will be only 10 and 3 per cent of the high- and
moderate-resource areas in the RSA, respectively.
[1016] The Panel notes that Shell has not provided the rationale indicating how reclamation to
within 6 per cent of preindustrial levels of areas of high and moderate biodiversity will be
achieved at PDC closure. The Panel notes that Shell may be reclaiming to equivalent land
capability; however, the Panel understands that this does not necessarily provide for equal levels
of biodiversity (i.e., the same species and ecosystems), particularly given Shell’s intended use of
unproven methods for reclaiming peatlands, and the time lags in reclaiming of old-growth
forests. Similarly, the Panel is uncertain how Shell was able to predict reclamation of high
biodiversity potential ecosystems in the PDC that are greater than high biodiversity potential
after reclamation in the application case. Furthermore, given that Shell chose not to
quantitatively predict wildlife habitat availability after reclamation of the PDC (see the Effects
on Wildlife and Their Habitat section) and given the uncertainty of the future reclamation plans
of other oil sands projects, it is unclear to the Panel why or how Shell chose to take this approach
for biodiversity following reclamation in the PDC. The Panel therefore finds that there is a high
degree of uncertainty about Shell’s predicted biodiversity potential of ecosystems following
reclamation of the PDC.
[1017] The Panel notes that Shell categorized water as having “moderate biodiversity potential,”
and therefore an increase in water equates to an increase in moderate biodiversity potential. The
Panel understands that in Shell’s analysis, the large increase in water is due to the addition of pit
lakes to the closure landscape. The evidence presented indicates that there is uncertainty about
the viability of aquatic ecosystems in EPLs (see the Use of End Pit Lakes section). The Panel
therefore believes that Shell’s predictions for areas of moderate biodiversity potential after
closure may be overestimated by the inclusion of water in EPLs.
[1018] The Panel emphasizes that in accordance with the Convention on Biological Diversity
(CBD), to which Canada is a signatory, an integral part of preserving biodiversity is preventing
or reversing the decline of at-risk or rare species. SARA is Canada’s realization of this
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commitment under the CBD. Thus, in order to fully assess effects on biodiversity, the Panel
needs to carefully consider the effects on species at risk.
[1019] The Panel believes that Shell did not assess effects on species at risk in its analyses of
effects on biodiversity, and as such, Shell has not entirely captured the effects (project or
cumulative) on biodiversity in its EIA. The Panel also recognizes that Shell has based its analysis
of biodiversity on an unverified assumption that habitat types (e.g., wetlands,) have an associated
level of biodiversity. The Panel, therefore, believes that there is substantial uncertainty about
Shell’s predictions of biodiversity in the RSA. The Panel points to the Effects on Wildlife and
Their Habitat section, which indicates that in the application case, three species at risk (Canada
warbler, wood bison, and woodland caribou) will lose more than 20 per cent high- or moderatequality habitat, while another four will lose between 17 and 19 per cent high- or moderatequality habitat (rusty blackbird, western toad, horned grebe, and yellow rail). In the PDC, eight
species at risk will lose more than 20 per cent high- or moderate-quality habitat, with upwards of
40 per cent in the case of the woodland caribou and Canada warbler.
[1020] The Panel believes that there is a high potential for significant cumulative effects on
biodiversity in the RSA based on Shell’s biodiversity analysis and on predicted habitat loss for
species at risk. Unproven methods for reclamation of peatlands, time lags in restoring old-growth
forests, and lack of other mitigation which has been shown to be effective also support this
conclusion. In particular, the Panel notes that the cumulative loss of peatlands (e.g., treed fens) in
the RSA appears to be significant given their high biodiversity value.
[1021] The Panel believes that the application case will result in a loss of substantial areas of
high and moderate biodiversity potential compared with the PIC (15 per cent ± 20 per cent
error). After closure, reclamation will reduce the loss of these areas by only 1 per cent, largely
due to the prevalence in the RSA of wetlands that cannot be reclaimed.
[1022] The Panel believes that the PDC scenario presented in Shell’s EIA is the most detailed
assessment of the future of northeastern Alberta’s oil sands region presented in an EIA so far.
Rates of loss for areas of high- and moderate-biodiversity are upwards of 20 per cent (±20 per
cent error) at or above some suggested or recommended thresholds for wildlife habitat loss. It is
also important to note that these predicted losses occur across an RSA that is approximately
2 200 000 ha in size (22 000 km2). The loss of biodiversity will be significantly higher in some
areas of the RSA, such as the area surrounding the Project. The Panel acknowledges that there
are many uncertainties associated with potential future development projects, with reclamation
plans, and with the level of biodiversity that can be restored to reclaimed landscapes; however,
the Panel is of the view that the precautionary principle dictates that given the predicted loss of
biodiversity within the RSA, significant management actions are required in the very near term
to avoid widespread and unacceptably high losses of biodiversity.
[1023] Based on the criteria provided in the Agency’s guide, Determining Whether a Project is
Likely to Cause Significant Environmental Effects (November 1994), the Panel used the
following approach to determine the significance of cumulative effects based on the application
case and the PDC.
•
The decrease in high and moderate levels of biodiversity in the RSA is likely—the footprint
of the Project combined with other projects will be cleared, and after reclamation landscape
levels of biodiversity will not reach similar levels.
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•
The magnitude will be high— given a loss of combined high and moderate biodiversity areas
of 193 181 ha and a 83 111 ha, respectively that will not be restored to PIC levels of
biodiversity in the application case and PDC.
•
The geographic extent is regional—affecting the RSA.
•
The duration is long term—given that the timeframe to restore biodiversity to wetlands and
old-growth forests is more than 80 years and peatland restoration is still not demonstrated for
oil sands projects.
•
The effects are largely irreversible—given that it appears that levels of biodiversity in areas
that were mined will not return to PIC levels in the medium to long term (i.e., at least 80
years) or have the same suite of species or ecosystems. Furthermore, some high-biodiversity
habitat types will be completely lost (e.g., peatlands); therefore the associated biodiversity
cannot be expected to return.
•
The ecological context of the oil sands region where the Project is taking place has already
been adversely affected by human activities. Moreover, areas of the RSA (e.g., the lenticular
patterned fen) have been classified as being particularly sensitive and unique to the area.
[1024] Given the predicted declines in biodiversity in the RSA, the degree of error associated
with Shell’s estimates, the loss of habitat for species at risk, the uncertainty associated with
habitat reclamation, and the lack of mitigation shown to be effective, the Panel finds a significant
adverse effect to biodiversity in the RSA as a result of the cumulative effects of the application
case and the PDC compared with the PIC. Despite uncertainty around appropriate thresholds to
be used, the Panel believes that cumulative effects on wildlife in both the application case and
the PDC in the Project area have exceeded or are approaching some of the proposed thresholds,
resulting in significant adverse effects on biodiversity.
[1025] The Panel acknowledges the potential role of LARP and the pending biodiversity
management framework in providing a more regional approach to managing cumulative effects
in the oil sands region. The Panel recognizes that cumulative effects in the oil sands region
cannot be managed on an individual project basis and that they require collaboration and
strategic planning across government, industry, Aboriginal peoples, and nongovernmental
organizations.
[1026] The Panel recognizes that the best mitigation for maintaining high levels of biodiversity
in the RSA would be to avoid the removal and drawdown of peatlands wherever feasible.
However, given that few options are available for avoiding or minimizing these effects without
sterilizing bitumen resources, the Panel believes that conservation offsets should be considered
as recommended elsewhere.
RECLAMATION
Evidence
[1027] Shell presented a plan to disturb 20 555 ha of land as a result of the Project and stated
that reclamation was its primary mitigation measure. Shell stated that its reclamation goal is a
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maintenance-free, self-sustaining ecosystem with a capability equal to pre-development
conditions, noting that this did not mean areas would be identical to predisturbance conditions.
[1028] ACFN stated that it was uncertain that the area would be reclaimed to an equivalent land
capability as Shell has no track record of successful reclamation to date.
[1029] OSEC stated that reclamation to a landscape of equivalent capability is not possible
because of the loss of fens and the inability to reclaim peatlands.
[1030] In response, Shell stated that there is evidence that oil sands developments can be
reclaimed, specifically noting that Syncrude’s Gateway Hill and Suncor’s Wapiskaw Lookout
are comprised of mixed forest and wetland reclamation in a former tailings disposal area.
[1031] Shell stated that due to the characteristics of oil sands mining operations, most
reclamation would take place in the final 15 years before closure, between 2045 and 2060. Shell
stated that it would use progressive reclamation practices and outlined several techniques to
reclaim land as soon as possible, including
•
constructing overburden dumps from the outside to the middle to reclaim the outer portions
earlier,
•
contouring landforms and placing reclamation material shortly after overburden structures
reach maximum capacity,
•
constructing drainage channels and wetlands areas when landforms are completed to promote
progressive closure drainage conditions, and
•
capping tailings cells soon after trafficable surfaces are achieved.
[1032] Shell also stated that working with the Oil Sands Tailings Consortium (OSTC) to
advance tailings management would lead to more timely reclamation.
[1033] ACFN expressed concerns about the timelines proposed for reclamation by Shell and the
uncertainty of success. ACFN recommended that the Panel require Shell to reclaim project lands
progressively and effectively to a standard and in a timeframe consistent with the exercise of
ACFN’s treaty rights.
[1034] OSEC stated that much of the reclamation would take place during the later stages of
mine life and therefore questioned Shell’s commitment to progressive reclamation.
[1035] Shell stated that due to its proposed reclamation timeline, it would stockpile most
reclamation material before placement. Shell committed to use direct placement techniques when
the opportunity exists. Shell provided evidence that sufficient reclamation material, and
sufficient area to store that material within the proposed boundary, was available and that
suitable planning had occurred. Shell committed to follow the Field Guide to Ecosites of
Northern Alberta for soil salvage and the Guidelines for Reclamation to Forest Vegetation in the
Athabasca Oil Sands Region for soil placement.
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[1036] Shell initially proposed that benches would remain as part of the closure landscape and
that Shell expected no issues with terraces. However, during the hearing, Shell committed to
remove all benches as part of the recontouring process before reclamation material placement.
Analysis and Findings
[1037] The Panel acknowledges ACFN’s and OSEC’s concerns about reclamation and
equivalent land capability. The Panel notes that the parties have differing views on equivalent
land capability. According to Alberta’s Conservation and Reclamation Regulation, equivalent
land capability means: “the ability of the land to support various land uses after conservation and
reclamation is similar to the ability that existed before an activity being conducted on the land,
but that the individual land uses will not necessarily be identical”.
[1038] The Panel notes that as a result of oil sands mining operations, including overburden
storage areas and pit mining, the reclaimed landscape will predominantly comprise upland
habitat and open water with less lowland area than the predisturbance landscape. The Panel
concludes that while this may result in different land uses after reclamation than presently exists,
the reclaimed landscape as proposed by Shell will have a similar ability as the pre-development
landscape to support varying variety of land uses. The Panel expects Shell to adaptively manage
and modify its closure and reclamation plans throughout mine life to ensure that it achieves
equivalent land capability.
[1039] The Panel acknowledges OSEC’s and Aboriginal groups’ concerns related to progressive
reclamation. The Panel notes that LARP encourages timely and progressive reclamation and
states that Alberta’s new progressive reclamation strategy includes a suite of initiatives to
improve clarity, security, and environmental performance, including an enhanced reclamation
certificate program, a transparent reporting system, and a new progressive reclamation security
policy.
[1040] The Panel understands that due to the operational methods of oil sands mining, regardless
of the measures outlined above, there will be limited opportunities for progressive reclamation
until later in the life of the mine. The Panel expects Shell to reclaim disturbed land as soon as
suitable areas become available in order to minimize the area under disturbance at any given
time.
[1041] While the Panel acknowledges that the amount of material that can be directly placed
may be limited because most reclamation occurs in the final years of the Project, the Panel
recommends to ESRD that Shell be required to apply direct placement techniques when ever an
opportunity exists in order to help the process of regeneration and to minimize double handling
of material. Based on the evidence presented, the Panel expects Shell to salvage and store a
sufficient volume of material to be used for reclamation where direct placement cannot be
applied.
[1042] The Panel acknowledges Shell’s commitment to remove benching as part of the
reclamation process. The Panel expects Shell to design landforms according to the CEMA
Landscape Design Checklist and ESRD’s report Designing Oil Sands Mining Landforms for
Natural Appearance and Integration Across Boundaries. The Panel expects that reclaimed
landforms will replicate natural features and blend into the surrounding landscape. The Panel
requires Shell to remove all benching on mine discard structures before final reclamation.
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[1043] The Panel requires that Shell provide, for AER approval, a detailed watershed design
report for all mine structures one year before the final placement of reclamation material.
HUMAN HEALTH
Evidence
[1044] Shell assessed human health effects that may occur through several exposure pathways,
including air and dust inhalation, soil ingestion, drinking water, local fruit, vegetable, fish and
wild game consumption, and dermal contact with soil. It assessed effects through acute, chronic,
and multiple pathways exposure. Shell determined that acute inhalation contaminants exceeded
health-based guidelines for acrolein, PM2.5, the “eye irritants” mixture, and the “respiratory tract
irritants” mixture. The chronic inhalation assessment determined that exceedance may occur for
acrolein and the “nasal irritants” mixture. Shell also determined that for multiple-pathway
exposure, exceedance may occur for methyl mercury, molybdenum, the “neurotoxicants”
mixture, and the “reproductive and developmental toxicants” mixture.
[1045] Shell stated that the Project would result in zero to negligible increases in these
compounds and that exceedances are a result of existing exceedances in the base case. Shell
noted that the only exception was molybdenum which would increase substantially between the
base and application cases. Shell noted that increased exposure risk was a result of fish
consumption by residents and that its human health risk assessment (HHRA) incorporated
enough conservatism that it did not anticipate health effects.
[1046] With respect to exposure to carcinogenic compounds, Shell predicted that the incremental
lifetime cancer risk resulting from the Project would be essentially negligible as exceedances
were the result of base case emissions, but it noted a lifetime cancer risk above the regulatory
benchmark for some chemicals. Shell stated that there is no defined acceptable cancer incidence
rate for the exposure to carcinogens associated with baseline conditions.
[1047] Shell conducted a semiquantitative assessment of potential risks associated with
naphthenic acids in EPLs. This assessment indicated that predicted naphthenic acid
concentrations would exceed the typical range of background values; however, volatilization
would not be an important fate process in these cases. Shell was unable to complete a human
health risk assessment of these compounds because health-based exposure limits were not
available. Without detailed toxicity information, Shell stated that it was difficult to ascertain the
likelihood and severity of adverse health effects of exposure to naphthenic acids. Shell
committed to continued monitoring during operations and after closure to verify its predictions
for naphthenic acids concentrations in the end pit lakes.
[1048] HC participated in the review of the HHRA and subsequent updates provided by Shell.
HC requested additional information to inform its review of the potential human health
implications of the Project. It did not note any remaining concerns about the completeness or
methodology used by Shell in its 2007 HHRA. HC asked for minor clarifications to address
discrepancies between the 2007 and updated 2012 HHRA.
[1049] Shell noted that none of the several studies completed on health effects in the oil sands
region demonstrated that adverse health effects were caused by oil sands development. Shell
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noted that additional health-related studies and programs are planned for several communities
that should provide more information about human health. Completed and planned studies and
programs include:
•
Community Exposure and Health Effects Assessment Program (AHW 2000),
•
Human Exposure Monitoring Program, Alberta Cancer Board (2009),
•
Air Quality Health Index Program (WBEA and ESRD),
•
Contaminant Load Study (ESRD), and
•
Additional studies with Fort McKay and Fort Chipewyan.
[1050] Shell also noted that oil sands proponents are collecting more baseline data as part of
their HHRAs and that they are making an effort to pool these data sets and look at cumulative
health effects on a regional basis.
Air Quality
[1051] Shell conducted air dispersion modelling to predict the maximum annual average air
concentrations for each of the identified locations at which people were known or expected to
spend time on a long-term basis. Shell noted that it combined measured average indoor air
concentrations with the predicted ground-level air concentrations in recognition of the fact that
people spend most of their time indoors. Shell noted that in almost all cases, predicted chemicalof-potential-concern air concentrations were less than the health-based guidelines, therefore it
considered health risks for these compounds low. Exceptions included acrolein, PM2.5, the “eye
irritants” mixture, and the “respiratory tract irritants” mixture. Shell noted that it did not
anticipate health effects as a result of these exceedances because they were either the result of
base case emissions or would not manifest in health effects. Shell stated that its HHRA was
sufficiently conservative that exceedances may be exaggerated. Shell’s chronic inhalation
assessment determined that exceedances may result in increased health risks for acrolein and the
“nasal irritants” mixture. Shell reiterated that exceedances would not result in health effects and
that it had incorporated a high degree of conservatism into the development of the chronic
inhalation exposure limit.
[1052] ACFN stated that rates of asthma in the Fort Chipewyan community are increasing and
hypothesized that the poor air quality as a result of the oil sands industry was a contributing
factor. Fort McKay also stated that the effects of industrial air emissions on air quality and health
are a major concern and that odours, in particular are an important issue. Fort McKay stated that
efforts are needed to reduce odourous emissions and noted that many of the management
measures to be adopted by Shell would reduce emissions of odourous substances. Fort McKay
recommended a detailed monitoring and notification protocol if detectable odours result.
Water Quality
[1053] In its assessment, Shell assumed that cabin residents get 100 per cent of their drinking
water from local surface water bodies. It also assumed that Aboriginal residents, including all
permanent First Nations and Métis and subsistence residents of Anzac, Clearwater, Conklin,
Descherme Lake, Fort Chipewyan, Fort McKay, Fort McMurray, Javier/Chard, La Loche,
Namur River, and Poplar Point have access to a municipal water supply. Shell stated that it did
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not expect that municipal water quality would change from the measured background
concentrations in the application case or PDC. As a result, it predicted no changes in the
concentrations of chemicals of potential concern for Aboriginal residents, community residents,
and workers.
[1054] For cabin residents, Shell noted that it attributed increases in health risk associated with
exposure to molybdenum and arsenic through ingestion of drinking water to base case emissions.
Shell stated that the exceedance for molybdenum was still below the upper limit imposed by HC
and would not result in adverse health effects. Similarly, Shell noted that studies completed in
North America have shown no association between arsenic levels in drinking water and the
occurrence of cancer. With respect to naphthenic acids, Shell stated that it was difficult to
ascertain or quantify health effects associated with exposure to naphthenic acids because
drinking water or health-based guidelines for human exposure to them were not available.
[1055] Shell stated that it is committed to maintaining water quality in the area by capturing
runoff, using mitigation measures for seepage, and using collection wells. Shell stated that with
the implementation of mitigation measures, water quality will return to baseline conditions
around 15 years after closure.
[1056] All Aboriginal groups expressed concern about drinking-water quality and stated that
they no longer drink surface water because of perceived contamination. MCFN recommended
that Canada and Alberta expand the testing parameters for drinking water at Fort Chipewyan to
include PAHs and toxic metals using a methodology capable of measuring at threshold levels
that are related to human health.
[1057] ACFN noted that the PAD is susceptible to alluvial sedimentation of fine particles
contaminated by the oil sands industry and related development. OSEC cited a Water Monitoring
Data Review Committee report which noted that levels of PAHs in sediments of the PAD and
mercury in the eggs of birds nesting there have been increasing, and that levels of arsenic in the
sediments of Lake Athabasca have also been increasing. In addition, Dr. Schindler, on behalf of
OSEC, noted that his studies indicated chemicals such as mercury, other trace metals, and PAHs
are getting into the river system. ACFN expressed concerns that these chemicals and sediments
are causing higher rates of cancers and other ailments, such as lupus in Fort Chipewyan. As a
result, Dr. Schindler suggested that human health studies be completed in order to assess the
claims about ingestion of cancer-causing chemicals. However, Dr. Schindler also noted that his
study showed that the current dissolved load of contaminants is not a concern for the community
of Fort Chipewyan due to its distance from oil sands projects.
[1058] Shell responded that according to conclusions of the Hall et al study, natural sources
comprise most PAH deposition in the PAD, and that deposition has not increased in recent
decades despite an increase in oil sands development.
Contamination of Country Foods
[1059] Through its multiple pathways assessment, Shell evaluated health effects of
contamination of country foods. The multiple-pathways exposure assessment focussed on those
chemicals of potential concern released into surface water and emitted into the air by the project
with the potential to persist or accumulate in the environment. Shell determined that ingestion of
country food (i.e., fish, wild game, local root vegetables, and local fruits) may result in increased
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health risk due to increased exposure from methyl mercury, molybdenum, and arsenic. Shell
stated that all elevated health risk exposures related to consumption of country foods were
present in the base case and not attributable to the Project. In the case of arsenic, Shell noted that
the incremental lifetime cancer risk values from base case to application case were essentially
negligible.
[1060] Shell stated that proponents are faced with challenges of data collection for wild game
and must rely on other studies to provide data on which to base predictions about project effects.
Shell said that it used concentrations from other studies to supplement its sampling program and
stated that the models used based on this data have demonstrated a strong ability to predict
effects. In referencing data sources, Shell noted that a traditional food study completed in the
early 2000son country food contamination in communities potentially affected by the Project is
outdated. Shell stated that one food-quality study was conducted for the Chipewyan Prairie Dene
First Nation in 2006, and follow-up work had been completed more recently. Shell noted that
this study looked at chemical concentrations in small and large game and fish and that some of
this data was still relevant for the communities in the area of the Project. Shell also pointed out
that Alberta Health and Wellness studied arsenic concentrations in moose in 2007 and that the
Terrestrial Environmental Effects Program has been working with Fort McKay to develop a
berry-monitoring program. [1061] ACFN and NSFMFM stated that their members do not feel comfortable harvesting
country foods in the Project area, partly because of fear of contaminants and altered taste and
form. In particular, ACFN noted that members avoid harvesting fish from the Athabasca River
because of perceived contamination and deformities in fish. ACFN and NSFMFM reported
reduced harvesting success, high cost of store-bought goods, dietary issues associated with poor
selection of traditional foods available for harvest, reduced nutritional quality because of
contamination, and fear of ingesting contaminated country foods. Both OSEC and ACFN
expressed concern about potential contamination of traditional food and water and the associated
psychological stress it can cause.
[1062] Shell stated that although it is difficult to assess perception issues through a health risk
assessment, it was committed to addressing ongoing ambient monitoring and psychosocial
effects through public consultation and information, and to providing results to stakeholders
during Project operations and closure.
[1063] In addition to concerns expressed about elevated health risks in Fort Chipewyan, ACFN
expressed frustration that community health studies were not a higher priority for Alberta and
Canada and that promised studies had not been completed.
[1064] MCFN recommended that Canada conduct a traditional food study with MCFN
participation to examine the impact of oil sands contaminants on traditional foods such as fish,
moose, caribou, small game, bird eggs, and berries in the region. It noted that special attention
should be drawn to the location of traditional foods in relation to oil sands mine development.
MCFN and ACFN also recommended that Alberta and Canada conduct a comprehensive
baseline study for Fort Chipewyan residents as recommended in the EUB Decision 2004-009 for
the Shell JPM project, including a study of contaminant intake and body burden for Fort
Chipewyan band members. MCFN also recommended that Canada and Alberta fund additional
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research on health, diet, practice of treaty and Aboriginal rights, and contaminant avoidance
patterns.
[1065] Shell submitted a report by the Royal Society of Canada on health concerns in the oil
sands area. The report evaluated the potential health risks of exposure to mercury and increased
cancer risk from exposure to arsenic and PAH. It stated that increased mercury in fish tissue was
not unique to the oil sands region and data suggest that fish contamination across northern
Canada is occurring from a generalized source. The report also stated that evidence does not
support arsenic or PAH exposure as an explanation for concerns about excess cancer in the
region. The report does note, however, that local concerns about cancer risk suggest that a
rigorous risk assessment be done in the region.
Analysis and Findings
[1066] The Panel notes that while HC asked Shell to provide some clarification on certain issues
in Shell’s HHRA, it did not raise any significant issues related to the completeness or
methodology of the HHRA. Similarly, the Panel notes that the Government of Alberta, by letter
dated October 14, 2010, stated that the information requirements of the EIA terms of reference
had been met and that there was enough information to understand the Project at a conceptual
level. The Panel finds that Shell’s methodology and analysis in its HHRA is appropriate, and
therefore, the Panel believes that it can rely on Shell’s HHRA.
[1067] The Panel believes that exceedances related to the Project’s release of PM2.5, the “eye
irritants” mixture, and the “respiratory tract irritants” mixture are the result of conservative
estimates and believes that the Project will not appreciably contribute to the level of these
emissions in the region. However, the Panel believes that contributions to exceedances that are
present in the base case may contribute to an increased risk for health effects due to cumulative
effects. The Panel believes that the LARP air quality management framework provides an
appropriate mechanism for managing emissions to avoid exceedances and associated health
effects.
[1068] The Panel understands that Alberta is currently working on ambient air quality objectives
for acrolein and that Shell said it would comply with these. The Panel recognizes that because
the “eye irritants” mixture and “respiratory tract irritants” mixture contain a high proportion of
acrolein, these objectives will help limit exceedances of these mixtures. The Panel believes that
monitoring and mitigating acrolein, and as a result, the “respiratory tract irritants” mixture, may
alleviate Fort McKay’s concern about odourous effects.
[1069] The Panel notes there is a gap in knowledge about contamination of country foods. The
recent work by Dr. Schindler and EC on atmospheric deposition seems to indicate that the
concerns raised by Aboriginal groups about country food contamination are not unfounded. The
Panel acknowledges that conducting health studies is a slow process, but stresses the importance
of integrating health studies at the provincial and federal levels to better inform health risk
assessments. The Panel also believes that studies examining contamination of country foods are
important and should be a focus of health studies conducted by Alberta or Canada. These studies
should provide effective analysis of human health because of impacts from potential
environmental effects of the oil sands industry, including water quality and impacts related to
fish contamination, any potential impacts on air quality, contamination of wild game, and
contamination of traditionally harvested plants used as food or medicine. The Panel recommends
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that Alberta Health and Wellness and HC complete a regional baseline health study focused on
First Nations, Métis, and other Aboriginal groups that considers all relevant health factors,
including environmental exposures and potential exposure pathways, such as water, air, and
consumption of traditional foods. The Panel notes that a similar recommendation was made in
the Joint Review report approving Phase 1 in early 2004 (EUB Decision 2004-009)
[1070] The Panel discussed the issues related to mercury and water contaminants and provided
recommendations in the No Net Loss Plan section and the End Pit Lake section that should be
adhered to by Shell in order to ensure that fish are not consumed by humans in times of elevated
contaminants. Recommendations in those sections will also be important as they relate to
discharge of water from the EPLs. Provided that Shell implements mitigation measures to inform
users of the health risks associated with the consumption of fish in the short term, the Panel
expects no significant adverse effects on human health from the Project.
[1071] The Panel recommends that the Governments of Canada and Alberta, in collaboration
with Aboriginal groups, monitor the occurrence and rate of aerial deposition of contaminants on
traditional plants to determine the extent of regional effects on plant quality.
[1072] The Panel notes that ERCB Decision 2011-005 recommended that the federal and
provincial governments work with the CCME to develop specific water quality objectives for
naphthenic acids. The Panel is disappointed that recommendations from previous review panels
stating that human and aquatic health guidelines need to be developed for naphthenic acids have
not yet been carried out. The Panel again recommends that the Governments of Canada and
Alberta work with the CCME to develop specific water quality objectives for naphthenic acids.
[1073] The Panel notes that the Royal Society of Canada report provides some clarity regarding
conflicting studies on health effects in the oil sands region. The Panel understands that the report
determined that health effects experienced by residents of the oil sands region are not unique to
that region and are likely not the result of oil sands operations. However, the Panel agrees with
the report’s suggestion that a rigorous risk assessment be done in the region to assuage concerns
about cancer risk.
[1074] While the Panel finds that the incremental lifetime cancer risk associated with the Project
will not result in a significant increase in cancer incidence, the Panel cannot determine the
acceptability of the potential lifetime cancer risk from a public health perspective using a
conventional approach because an acceptable “benchmark” cancer risk level for exposure to
background levels of carcinogens is not available for comparison.
PHYSICAL AND CULTURAL HERITAGE RESOURCES
Evidence
[1075] Shell evaluated the effects of the Project on archaeological and paleontological resources
by conducting a historical resources impact assessment (HRIA) in accordance with the Alberta
Historical Resources Act and the Guidelines for Archaeological Permit Holders in Alberta in
2005, 2006, and 2007. Shell stated that historical resources included pre-contact archaeological
resources, sites, artifacts, structures, and documents that relate to the Euro-Canadian occupation
of the region, and resources relating to post-contact use of the landscape by Aboriginal people.
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Shell stated that paleontological resources consist of physical remains that represent evidence of
extinct multicellular plants and animals that inhabited the region in precontact times.
[1076] Shell’s assessment included a review of existing historical information and field
investigations for the first 10 years of operations as directed by Alberta Culture. Shell indicated
that it would conduct another historical resources assessment for the following 10 years of
development using the previously completed assessment as a baseline.
[1077] Shell recorded six historical sites within the Project footprint. Shell stated that additional
sites may be identified in the follow-up study. It believed that all of the sites represented
precontact use of the area. Shell recommended to Alberta Culture that stage 1 mitigation 12 be
conducted at one site and that no further work was needed for the remaining sites. Shell stated
that it discovered no paleontological resources during the HRIA.
[1078] Shell proposed additional mitigation measures for any sites found during operations,
including avoidance, education, and periodic monitoring. Shell predicted that assuming that
Alberta Culture established appropriate and effective mitigation strategies and that Shell adhered
to them, there would be negligible direct effects. Shell also stated that it would mitigate any
impacts on paleontological finds uncovered during operations in accordance with the Historical
Resources Act.
[1079] Shell noted that it recorded 1 174 historical resource sites within the historical resources
RSA have been recorded. Shell stated that about 53 per cent of these sites have been or will be
affected by existing, approved, and planned developments in the oil sands region.
[1080] NSFMFM and the Clearwater Band stated that there are likely undiscovered mass
gravesites containing ancestors of those groups, possibly at Poplar Point, Fort McKay, and Fort
Hills. NSFMFM also raised concerns about Pierre-au-Calumet, Quarry of the Ancestors, and the
Cree Burn Lake sites.
Analysis and Findings
[1081] The Agency’s Reference Guide on Physical and Cultural Heritage Resources
acknowledges that there are two aspects of cultural heritage: tangible and intangible. The Panel
notes that the HRIA focused on the tangible aspects. The Province of Alberta has also recognized
the importance of assessing disturbance to tangible sites of Aboriginal heritage and
archaeological resources. Information on intangible aspects of culture is provided in the
Aboriginal Traditional Land Use, Rights, and Culture section of this report.
[1082] The Panel understands that the NSFMFM and Clearwater Band’s mass graves are
probably not within the footprint of the Project and will not be affected by the Project. The Panel
also notes that other sites referenced by the NSFMFM are also not located in the Project
footprint. The Panel recognizes that these locations may be affected in the future by other oil
sands developments, but it is confident that concerns will be dealt with appropriately through
provincial legislative requirements.
12
Stage 1 Mitigation is background study and property inspection. A stage 2 assessment is required after areas of
archaeological potential have been identified.
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[1083] The Panel believes that the completion and submission of the HRIA for the Project and
the follow-up activities Shell has completed and plans to complete to meet the requirements of
Alberta Culture under the Historical Resources Act will mitigate the Project’s potential effects
on historical and cultural resources. The Panel therefore finds that there are no significant project
effects.
SOCIAL AND ECONOMIC EFFECTS
Project Effects
Project Benefits
Evidence
[1084] Shell stated that the Project will provide significant economic benefits to the region, the
province, and the country.
[1085] Shell stated that it expected construction would take place between 2015 and 2018, with
first oil expected in 2018. Shell said that the Project will result in the recovery of some 325 Mm3
of dry bitumen over its approximately 40-year life.
[1086] Shell stated that the capital cost will be $8–$12 billion over the 3.5-year construction
period. The Alberta economy will receive $4–$6 billion of total construction expenditures. Of
this, $265–$400 million dollars will accrue to regional companies and workers.
[1087] Shell expected the effect of the Project construction on provincial gross domestic product
(GDP) to be an increase of $7–$10 billion.
[1088] Shell said that the Project will provide 9310 work years of on-site employment peaking at
4400 workers in Q1 of 2018. There will also be 3100 work years of off-site employment in
Alberta. The Project will also create 750 full-time operational jobs.
[1089] RMWB can expect to receive $23–$34 million annually in property taxes at current rates.
Federal and provincial government royalties and taxes will total $17 billion over the Project life.
Analysis and Findings
[1090] On the basis of the evidence, the Panel finds that the Project will result in significant
direct and indirect economic benefits to the region, the province, and Canada in terms of bitumen
recovery, employment, royalties, and taxes. The Panel also notes the letter of support for the
Project from the RMWB.
[1091] The Project will have an incremental adverse effect on some ecological aspects; however,
the Panel still believes the Project is in the public interest, in part due to the significant economic
benefits for the region, Alberta, and Canada.
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Methodology
Evidence
[1092] ACFN raised concerns about the methodology Shell used for its socioeconomic impact
assessment (SEIA). It submitted that Shell did not link sociocultural indicators to its assessment
of impacts on the exercise of Aboriginal and treaty rights. ACFN also submitted that the
methodologies in project-specific impact assessments were inadequate for assessing the
relationships among socio-cultural and ecological aspects that support the practice of rights. It
stated that the applications do not assess socioeconomic issues on the basis of rights but instead
tend to address issues as if the First Nations (such as the trappers) were merely stakeholders with
no constitutionally protected rights other than commercial rights. This impacts their TLU, rights,
and culture, and is more fully addressed in the Effects on Aboriginal Traditional Land Use,
Rights, and Culture section.
[1093] Shell said that the Project SEIA met the TOR set by ESRD and provided detail and
analysis comparable to that previously accepted by regulators in past oil sands mining
applications.
Analysis and Findings
[1094] The Panel accepts that project-specific EIA requirements can be improved. Currently, the
socioeconomic impacts of developments are addressed in only a general and qualitative manner.
The Panel addresses these methodological concerns in the Effects on Aboriginal Traditional
Land Use, Rights and Culture section.
Housing
Evidence
[1095] Shell estimated temporary construction-related housing demand of 430 dwellings during
2015–2018 for construction workers and indirect/induced workforce, in addition to the camps.
Shell also stated that the RMWB will be able to absorb the additional housing needs. Shell
estimated that 1230 dwellings will be needed for operations staff 15–18 months before
operations. Shell estimated that the overlap of construction and operations housing will be in
2016–2017. Shell proposed to mitigate housing impacts by using camps.
[1096] Shell will house 90 per cent of the construction workers in camps on site. In the event
that it is unable to do so, Shell assured the Panel that it could arrange accommodation with
regional commercial providers of camps. It expected the remaining 10 per cent of construction
workers would live in the community.
[1097] The RMWB said that it had entered into a memorandum of understanding (MOU) with
Shell that addresses the housing impacts to RMWB's satisfaction. Shell stated it will strongly
encourage its operational workers to permanently reside in the region.
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Analysis and Findings
[1098] The Panel acknowledges that Shell and the RMWB have entered into a MOU that address
the Project’s housing impacts. The Panel therefore accepts Shell’s assessment that the RMWB
will be able to absorb the additional housing needs.
[1099] The Panel finds that camp accommodation is a viable and necessary option for Project
construction given existing labour and housing constraints. The Panel also finds that Shell’s onsite construction camp and MOU with the RMWB are appropriate mitigation. The Panel
acknowledges that Shell will encourage operations workers to reside in the community as a result
of its MOU with RMWB.
Transportation Infrastructure
Evidence
[1100] Shell estimated that project-related traffic would peak in 2017 at between 640 and 780
vehicles per day as average daily two-way traffic (ADTT) volume.
[1101] Shell had originally expected project-related traffic on Highway 63 north of Fort
McMurray to the turnoff into the MRM to average between 470 and 575 AADT over 2012–2015
but did not provide an update to reflect the adjusted timeline for construction of the Project. Shell
stated that it did not believe the changes to the schedule would not have a substantial effect on its
assessment. Current traffic volumes along Highway 63 north of Fort McMurray and south of the
MRM turnoff vary between 3000 and 19 400 AADT. Shell stated that it expected those volumes
to increase when more projects begin construction.
[1102] Shell said that project-related traffic along Highway 63 during the construction period
will likely consist of
•
36–51 per cent private vehicles, such as cars, pickup trucks, and vans, including companyowned and contractor vehicles;
•
49–64 per cent trucks, including both regular and oversized; and
•
less than 1 per cent buses, primarily transporting workers residing in the region to and from
the Project site during shift rotations.
[1103] Shell will bus Fort McMurray-based operations workers on a daily basis to mitigate the
Project’s impact on the regional transportation infrastructure.
[1104] RMWB, OSEC, and ACFN said that traffic was a major concern. RMWB stated that it
was not the amount of traffic but the type of traffic that causes problems.
[1105] Shell stated that higher traffic volumes will increase chances of accidents. Shell said that
it would use the Fort McKay industrial park on the east side of the Athabasca River for staging.
[1106] The RMWB stated that traffic congestion on Highway 63, particularly in the Fort
McMurray urban centre, was causing serious safety issues and delays. It also agreed that about
25 per cent of all oil sands employees were using a bus service to travel to the major plant sites.
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[1107] Shell would use its aerodrome during Project construction to transport out-of-town
construction workers. 90 per cent of the construction workers will be using the aerodrome and
will be subsequently bussed to the site. Shell expected only a few consultants to use the Fort
McMurray airport. During Phase 1’s peak construction period, Shell had 16 aircraft landings per
week, between two and three a day, depending on the day of the week. The planes moved about
2000 passengers per week. Shell expected a similar number for the Project.
Analysis and Findings
[1108] While it is clear that traffic is a concern, the Panel finds that mitigations provided by
Shell to reduce the Project's traffic impacts are comparable to efforts used by oil sands
companies to mitigate traffic impact that have been shown to be effective. The Panel expects
Shell to follow through with its proposed mitigations and to inform RMWB if it is unable to do
so. Regional impacts and recommendations for regional traffic issues are discussed in the
Regional Transportation Infrastructure section.
Quality of Life and Social Services
Evidence
[1109] Shell stated that the Project will be responsible for about 7.5 per cent of the population
growth in the region over the next 10 years.
[1110] Shell acknowledged that health care service providers in the region face several
challenges, including difficulty recruiting and retaining health care professionals and the need for
additional regional health infrastructure. Shell expected the construction workforce of the Project
to contribute to impacts on the health system, especially on emergency room services, in the
2012 to 2015 period. It did not update its estimate to reflect the changed timeline for the Project.
To mitigate impacts of its operations on regional health services, Shell committed to the
following.
•
Establishing an on-site health care facility for primary emergency and occupational health
service at all times. Shell said that it was considering expanding its existing on-site health
care facility at the Albian Sands village to serve the enlarged JPM workforce, and building a
similar facility at the PRM site. On-site medical facilities will provide primary care for onsite workers and manage minor health issues and injury incidents without drawing on local
health services provided by Alberta Health Services. It expected these facilities would reduce
the number of people from outside the region who use emergency-room services in Fort
McMurray.
•
Continuing to contribute financially to the Northern Lights Health Foundation, where
appropriate, including contributing $1.2 million to the Inner City Health Initiative.
•
Working with other companies to address the cumulative socioeconomic effects of their
projects on the region. This included ongoing discussions with Alberta Health Services about
medical infrastructure and service needs and how companies might contribute to addressing
those needs.
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[1111] Shell stated that the Project will not be a sizeable driver of demand for education
services. Shell forecasted population increases under its base case assumption of an additional
2600 school-aged children in the 2007 to 2010 period. In the application case, the impact is about
1180 and 780 school-aged children in 2015 and 2020, respectively. Shell has already voluntarily
taken steps to address issues related to the regional education system, including:
•
providing ongoing support for e-learning in Fort McKay;
•
supporting other Aboriginal education initiatives identified by schools in Fort Chipewyan,
Fort McKay, and Fort McMurray;
•
supporting Keyano College financially, including funding to open a new campus in Fort
Chipewyan;
•
supporting Aboriginal scholarships;
•
bringing science and technology camps and workshops to Fort Chipewyan and Fort McKay
through Actua;
•
delivering drilling-rig and driver training in Fort Chipewyan;
•
sponsoring delivery of the Building Environmental Aboriginal Human Resources Program in
Fort Chipewyan; and
•
implementing environmental monitoring programs and training to allow local workers to take
advantage of job opportunities available in the oil sands industry.
[1112] RMWB testified that six new schools are required to adequately service the existing
needs. RMWB also stated that many of the workers who come to the region do not take up
“permanent residence” and thus do not pay taxes to the region or to the province but nevertheless
create demands upon those governments for health care and other services. As a result, these
services do not get properly funded because many of the people who use them are not
contributing tax payments toward the costs of operating them.
[1113] ACFN testified that its education budget was spent and is the only program in which the
community falls into a deficit year-over-year. ACFN continues the program because it knows
that education is fundamental and foundational for future generations.
Analysis and Findings
[1114] The Panel notes that although Shell did not update certain of its estimates to reflect
changing timelines for the Project, this is not a significant concern because the changes do not
affect Shell’s assessment of the impacts or the mitigation that Shell selected. The Panel
acknowledges that projections such as these are difficult to make, and Shell provided an estimate
based on available information and its judgment. Shell also testified that the region can absorb
the additional workers.
[1115] It appears to the Panel that it would be of significant assistance to RMWB and Alberta to
obtain better information about the numbers of people moving to the region, particularly those
residing in work camps. The Panel believes that it ought to be possible to obtain information that
will enable better planning and delivery of services that may currently be under strain. As an
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example, the Panel believes that the municipal and provincial approval processes for the work
camps should provide a high level of information about this transient population. The Panel also
expects that the oil sands companies and other business operators should be able to provide
actual information about their respective work forces.
[1116] The Panel agrees that health care service providers in the region face many challenges.
The Panel acknowledges that it is the province’s responsibility to ensure that appropriate
standards of care and service levels are maintained, and it is Shell’s responsibility to mitigate
only the Project impacts. Shell stated that it is committed to reducing the Project’s impact on
health services by having an on-site facility. The Panel accepts Shell’s commitment and believes
that this is an appropriate mitigation for the effects of the Project. The Panel expects that Shell
will inform the RMWB about the progress of that facility’s development and about any delays
that may impact the hospitals and other medical facilities in the RMWB.
[1117] The Panel acknowledges that although education is the province’s responsibility, Shell
has made numerous efforts to support the advancement of education and training locally. The
Panel hopes that industry will continue such efforts. The Panel also recognizes the need for First
Nations and Métis people to have access to education so that their members can improve their
skills.
Cumulative Effects
Socioeconomic Impact Assessment and Cumulative Impacts
[1118] RMWB said that it has undergone transformative changes largely because of oil sands
development. However, in the RMWB’s opinion, research on project-specific and cumulative
socioeconomic impacts is lacking. According to RMWB, ESRD has indicated that it is not
adequately resourced to review the information provided. In RMWB’s view, this results in an
ineffective and inefficient assessment of socioeconomic issues facing the region. The RMWB
would like to see a more coordinated approach that includes both senior levels of government,
RMWB, and industry so that regional/cumulative socioeconomic impacts can be identified,
mitigated, and monitored. It believes that further work needs to be done, given the unique nature
of the regional resources and their impact.
[1119] Shell indicated that since RMWB and other regional service providers began raising
socioeconomic concerns at regulatory hearings in 2006, the province has contributed $3.6
million over three years to provide strategic municipal planning support to the region. The
province has also provided $103 million in direct funding in addition to a $136 million four-year
interest-free loan to build a replacement sewage-treatment facility and an upgraded water
treatment plant in Fort McMurray. Since 2007, the Government of Alberta has committed $2.25
billion to infrastructure and services in the RMWB, and the RMWB has also invested in major
infrastructure developments, including RCMP detachment buildings and regional fire halls. The
province has contributed
•
$30 million to support the lower town-site water collection system upgrader;
•
$15 million for regional landfill development;
•
$33.4 million for the Keyano Sports and Wellness Centre;
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•
$54 million for the Wood Buffalo Housing and Development Corporation;
•
$10 million plus land for the construction of the south cell block and station; and
•
$52 million for Phase I of the new RCMP detachment in Timberlea.
[1120] Shell stated that while the region may be experiencing rapid growth and its
accompanying pressures, it is also experiencing unprecedented tax-base growth. Property
assessment in the rural service area of RMWB, which consists mostly of oil sands facilities, grew
by an average of 24 per cent per year, from under $6 billion in 2005 to more than $24 billion, in
2011.
Land Release
Evidence
[1121] The RMWB provided evidence that showed that compared with other cities in Alberta
and Canada, Fort McMurray had one of the highest average multiple listing service (MLS) sales
price for houses by a wide margin, second only to Vancouver. These high costs combined with
recent changes in mortgage insurance and lending were making it even more difficult to become
a homeowner, especially in the urban services area. Rental rates for a two-bedroom apartment in
Fort McMurray were nearly double those in Edmonton, Calgary, and Toronto. And even though
house prices in Vancouver were higher than in Fort McMurray, rental rates in Fort McMurray
were nearly 70 per cent higher than in Vancouver. These high rental rates made it very difficult
for low- and moderate-income households to find affordable housing that meets their needs.
[1122] The RMWB calculated housing affordability, which is measured by comparing the cost
of housing with the household income. The greater the share of income required to pay for
housing, the less affordable is the accommodation. The main impact of high rental rates is on
lower- and moderate-income households that have to spend well over 30 per cent of their income
to obtain housing, according to RMWB estimates.
[1123] The severe shortages and the high cost of rental housing have created ideal conditions for
the emergence of a secondary rental market. This secondary rental market includes nontraditional housing markets, such as renting a room, sharing accommodation, renting an illegal
suite, couch surfing, and even long-term residency at a campground. Accommodations in the
secondary rental market often do not comply with safety codes, and the owners of these
accommodations do not want the RMWB to learn of them because they would be closed by the
RMWB. The RMWB knows this market is much larger than it appears. However, the RMWB
acknowledges that this market has some benefits, including the following:
•
it provides a good source of affordable housing
•
it helps some property owners pay their mortgages
•
it provides housing for the workforce in areas, such as the service sector
[1124] Shell agreed that the effect of high housing prices was felt more acutely by lower-income
people in Fort McMurray. ACFN stated that its members also need more housing. When young
members of ACFN leave the reserve to work in the city and are unable to find affordable
housing, they are forced to return. ACFN stated that the housing shortage on their First Nation’s
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land is also a serious problem. There are too few houses on reserve and no land is available to
build more houses. In some cases there are as many as 12 family members staying in one house.
ACFN acknowledged that there have been improvements in housing availability in recent years.
[1125] In final argument, counsel for NSFMFM and Clearwater Band stated that housing prices
have especially affected the Aboriginal population and, in particular, the elderly among that
population who are unable to afford to rent or own in Fort McMurray or the surrounding areas.
The high cost of living has rendered many Aboriginal people, including members of these
groups, homeless or at imminent risk of becoming homeless.
[1126] Shell stated that since 2007, the Government of Alberta has invested more than $50
million in affordable housing in the region. The provincial government has also made a
commitment of $241 million to develop lands in the Parsons Creek and Saline Creek Plateau
areas. Of significance is the signing of an MOU between the province and the RMWB for the
creation of an urban development subregion, which will enable the RMWB to keep pace with the
demand for residential, commercial, industrial, and institutional land. RMWB indicated that it
did not have a date or a final commitment from the province as to when the urban development
subregion will be created.
[1127] RMWB testified that most cities have a 5- to 20-year supply of land in the hands of the
private sector to ensure development keeps pace with community growth. RMWB presently has
no land bank which has posed many problems for the RMWB and hampered development. It
stated that land was currently very expensive and not available for suburban use. It also stressed
that it needed large quantities of land on the market right now for industrial and commercial
development to support development in the southern part of the region.
[1128] RMWB said that the population increase from oil sands activity has created a huge
demand for housing. A key component of housing is land. When land is not released, it becomes
scarce and, therefore, more expensive. The longer it takes to get land for development released,
the more scarce it becomes and, in turn, the more inflated the price becomes. RMWB stated that
the province then values the land at this elevated market value and will not sell or release land
until current appraisal values are met. RMWB believes that, in effect, the province's lack of a
coherent and functioning land-release strategy has caused or largely contributed to the largest
component of escalating housing costs—land.
[1129] RMWB also explained that land was often put on the market by the province without the
infrastructure to support development, which causes delays in development and increases
housing costs further.
[1130] RMWB believed that in order to have a true free market for land in Fort McMurray, it
needs to have a modest surplus of land to start to regularize prices. RMWB emphasized that an
effective land release policy was needed at the heart of a more sustainable housing picture in Fort
McMurray. RMWB requires a long-term supply of accessible land with major infrastructure
installed thereby creating a functioning free marketplace which will stabilize land supply and
prevent land shortages and price escalation. If this does not happen, the challenges associated
with housing affordability will continue and the region will continue to experience housing price
shocks until this issue of long-term supply is addressed. RMWB said that it is planning to
develop 40 000 residential, commercial, and retail opportunities in the only free-market land
currently available, which is in the downtown area.
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[1131] RMWB requested that the Panel strongly urge the Government of Alberta to develop and
implement a coherent, effective, and sensible land-release policy that takes into consideration the
unique issues in RMWB. This policy should include servicing, access, and valuation of land that
reflects these unique issues. The RMWB also expressed frustration over the apparent inability of
successive provincial government departments to understand and respond effectively to the
needs of the regional municipality.
[1132] The RMWB also made it clear that bringing land on the market without adequate road
access does not and will not solve the housing issue. When land is released, it needs to be
accessible. According to the RMWB, there has been a lack of coordination between ESRD and
Alberta Transportation on land release and land access. While some progress has been made in
releasing more land, there are still significant challenges in making the bulk of released land
accessible to enable residential development. The Parsons Creek neighbourhood, which could
house 20 000 or more residents, depends entirely on the completion of the Parson's Creek
interchange before it can go beyond 1000 residents. The province has moved the completion date
of that interchange back another year, so the neighbourhood will not be ready for the second
phase of development until 2015. Another example is Saline Creek, which without some further
improvements to the transportation access at the current Highway 69/63 interchange, can only be
developed to roughly 50 per cent of its capacity to house 16 000 residents.
Analysis and Findings
[1133] The Panel accepts that purchasing and renting housing in the RMWB is very expensive.
The Panel is also of the view that secondary housing, while it may have benefits, also has many
drawbacks. The Panel recognizes that the high housing costs can be mitigated in part by
increasing the supply of land and housing.
[1134] The Panel is of the view that the lack of developable land is a problem for the RMWB.
The Panel supports the RMWB's request for better coordination on this issue between the
Government of Alberta and the RMWB. The Panel also recommends that the Government of
Alberta provide to the RMWB a timeline for land release. Furthermore, the land release should
take into account land for infrastructure so that development of the land can proceed effectively.
The Panel believes that when making land valuations, the Government of Alberta should
consider the unique situation that the RMWB is in, that is, that the market is inflated in the
municipality.
[1135] The Panel accepts that it is difficult to proceed with residential development in the
RMWB without proper access. Accordingly, the Panel finds that better coordination among
RMWB, ESRD, and Alberta Transportation is needed to ensure that proper and timely access to
development land is provided. The Panel urges RMWB, ESRD, and Alberta Transportation to
begin a process that will ensure appropriate coordination.
Regional Transportation Infrastructure
Evidence
[1136] The RMWB confirmed that Highway 63 could absorb additional traffic, including that
created by the Project.
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[1137] The RMWB indicated that a committee established in the previous 18 months, including
representatives of provincial government departments, RMWB, industry, Northern Alberta
Development Council, and others, recommended to the province an eastern bypass route to
divert traffic on Highway 63 around Fort McMurray to the east. RMWB emphasized that the
proposed bypass was needed to take pressure off Highway 63 through Fort McMurray.
[1138] The bypass would reduce construction and oil sands operations traffic on Highway 63 in
the Fort McMurray urban service area and also allow heavy trucks to move south and connect
with the railhead for bitumen shipping by rail.
[1139] The RMWB said that Alberta Transportation had advised RMWB that once it built the
bypass, it would rededicate Highway 63 through the urban service area as an urban highway.
This would allow residents to move more freely around the urban service area.
[1140] The RMWB said that the bypass project has been discussed by the committee but that a
plan has not been finalized by the committee and there is no funding for it.
[1141] The RMWB said that it proposed to the province that it discuss with industry an
alternative funding model so this bypass can be built, but currently there was no initiative for this
discussion to take place.
[1142] The RMWB emphasized that efficient transportation has not been investigated in a
coordinated way. It noted that there were more than 40 airports in the region, resulting in safety
issues, impacts to minable land, and problems for air traffic controllers.
[1143] The RMWB also acknowledged that it had tremendous support from the oil sands
industry, including Shell, in designing bus lanes through the community to get buses in and out
of Fort McMurray to the sites faster. With respect to both land-release and transportation, the
RMWB asserted that the province needs to establish more integrated approaches.
[1144] ACFN members noted that traffic increases on the Fort Chipewyan winter road and
Highway 63 due to oil sands traffic were reducing public safety. ACFN also submitted that
access to and from Fort McMurray via the winter road is becoming more dangerous as traffic
increases, and black ice is becoming more common.
Analysis and Findings
[1145] The Panel notes that there appears to be a lack of coordination between the two levels of
government with respect to infrastructure planning. This is having a negative impact on the
development of essential infrastructure in the region. If left unaddressed, the lack of coordination
will continue to affect development in the region and hinder progress on those issues.
[1146] The Panel believes that it is essential for ESRD and Alberta Transportation to work
together to ensure that when land is released for development, it includes road access. The Panel
believes that if they do not work in a coordinated fashion, some of the housing issues in the
region that need to be addressed will persist. This is also discussed in the above section on land
release.
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[1147] The Panel agrees that Highway 63 is congested and that the proposed bypass would
alleviate some of the traffic concerns. Although RMWB provided no information about the cost
of it, considering the entities that were represented on the committee that recommended it to the
provincial government, the Panel is persuaded that the proposed bypass is a viable option.
[1148] The Panel believes that Alberta Transportation, RMWB, and the industry should work in
a collaboratively on developing of the eastern bypass route. Highway 63 is expected to be
twinned south of Fort McMurray; however, issues relating to Highway 63 through and north of
Fort McMurray also need to be addressed by the regional stakeholders.
Project Accommodations/Work Camps
Evidence
[1149] RMWB submitted that the work camps already in place could accommodate well over
70 000 people. The RMWB was also aware of additional permits and applications that would
bring the potential camp population to in excess of 80 000. RMWB asserted that camps are only
a short-term solution and that in the long run, fly-in/fly-out operations have a negative impact on
the community. Camps can have, and often do have, turnover well in excess of 40 per cent.
Generally, RMWB would prefer to have workers live within the community. The RMWB also
noted that many fly-in/fly-out workers earn their money in Alberta but pay their taxes to their
home provinces.
[1150] Shell agreed with the RMWB on this point and stated it would commit to secure local
workers for the Project or will strongly suggest that its operations workers relocate to the region.
[1151] The RMWB said that the preliminary results from the 2012 municipal census indicated
that work-camp occupancy is 39 271 people, a 411 per cent increase in occupancy over the last
seven years. In 2010, RMWB believed that about 24 000 people lived in work camps in the
region. During inspections in 2011, the RMWB’s planning and development team found 21
unpermitted camps accounting for an additional 12 000 beds. According to the RMWB, the
likelihood was that the 70 000 currently existing work camp spaces are 70–80 per cent occupied
during the winter high season, much higher than the self-reported 52 per cent.
[1152] The RMWB accepted that camps make sense for construction phases of projects, and the
RMWB was not against all camps. The RMWB was concerned that ESRD issues the permits but
does not monitor whether the camps are safe and complying with provincial regulations. This
results in the RMWB being obligated to enforce not only its own regulations, but also provincial
regulations. In some cases, work camps continue to function after permits have expired. RMWB
is also concerned about the risk of forest fires to remote work camps and their residents. For
many camps, workers are living in stacked trailers, and there is only a single access road.
[1153] The RMWB testified that ESRD approves camps without input from the RMWB.
According to the RMWB, the camps are spread over a vast region, are not coordinated, the
transportation to and from them is insufficient, and residents have a poor quality of life. RMWB
was also concerned that ESRD does not advise the RMWB when a lease for a camp has been
issued. ESRD also does not require a developer to prove that it has obtained a municipal
development permit to construct and operate a camp. From the RMWB’s perspective, if a camp
does not have a municipal permit, it is unpermitted. The RMWB was aware of instances in which
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operators have received a lease from the province and have assumed, deliberately or
accidentally, that the lease was sufficient for the operator to proceed to build its camp without
obtaining a development permit from the RMWB. When the operator does not apply for a
municipal permit, the RMWB is unaware of it and cannot ensure compliance with safety
regulations. The RMWB needs to know where populations are located for fire suppression and
emergency response. In 2012, the RMWB found 28 existing camps that were not permitted.
RMWB also indicated there are cases of permitted but noncompliant camps, usually involving
the numbers of residents exceeding the permitted capacity.
[1154] The RMWB suggested management steps to help with permitting. It asked that the Panel
recommend to the Government of Alberta that the responsible departments work more closely
with RMWB to advise on work-camp applications.
[1155] The RMWB asked the Panel to recommend to Alberta and Canada that they identify,
assess, and monitor the impacts of fly-in/fly-out workforce models on host communities. The
RMWB specifically requested that the Panel find on the evidence presented in this hearing that
fly-in/fly-out operations have a negative impact on the region.
[1156] ACFN expressed real concern about the quality of life of ACFN members working in
camp environments. While the wages are good, the work and living conditions at camp are not
well liked.
Analysis and Findings
[1157] The Panel accepts that fly in/fly out work forces may have a negative impact on the
region. However, the Panel also recognizes that the lack of available workers and housing in the
region makes fly-in/fly-out work forces a viable option for companies, particularly during the
construction phase.
[1158] The Panel believes that without proper authorization and enforcement, work camps can
be a problem in the region. The Panel recognizes the issues articulated by RMWB that stem from
lack of proper permitting and monitoring of work camps. The Panel recommends to ESRD and
the RMWB that they devise a process to make each other aware when either receives a request
for camp authorization. It also appears to the Panel that ESRD and the RMWB need to carry out
some communication and education programs with camp operators and the companies who use
the camps, to ensure that they understand that both entities need regulatory approvals. ESRD and
RMWB both need to ensure that camps comply with provincial and municipal regulations and
permit conditions.
Quality of Life and Social Services
Evidence
[1159] The RMWB stated that high quality of life is important for any region to develop and
attract residents. High costs of living, lack of health and education facilities, and lack of retail
opportunities deter new development and make an area less desirable to live in.
[1160] The RMWB estimated that the total population of RMWB was 116 403 people in 2012,
including both permanent and nonpermanent residents. It expected the regional permanent,
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nonpermanent, and project accommodation population to exceed 230 000 by 2030, with Fort
McMurray having a population of about 200 000. The RMWB estimated that the total population
for 2012 was composed of about 40 per cent nonpermanent residents, a significant increase over
2001, which was estimated at 25 per cent. Nonpermanent portions of the population reside in
work camps and within the urban services area of Fort McMurray. OSEC agreed with RMWB
that the population would increase to 230 000 by 2030.
[1161] The RMWB presented a series of studies prepared by the Province of Alberta that
analyze the cost of a basket of goods and services across various communities in Alberta. It
found that when considering all commodities, including shelter, the average cost of living has
been 10–15 per cent higher in RMWB over the last decade than in other cities in the province.
Most of this difference, in terms of prices in Fort McMurray, was attributable to shelter.
[1162] Shell acknowledged that health care service providers in the region face many challenges,
including difficulty recruiting and retaining health care professionals, and the need for additional
regional health infrastructure. ACFN stated that the Northern Lights Hospital was built to sustain
a regional population of 40 000 people but currently 100 000 to 110 000 depend on it. Shell
stated that recent measures to help with challenges affecting health services in the region
included:
•
an additional $177 million in funding to the Northern Lights Health Region between 2007
and 2010 to address regional health-related growth pressures;
•
more doctors recruited to the area;
•
more funding to address health-related growth pressures;
•
reduced emergency department wait times;
•
investments in regional health infrastructure, including
•
two new community health centres,
•
renovations to the ambulatory and emergency departments of the Northern Lights
Regional Health Centre, and
•
a commitment to add 100 continuing-care spaces in Fort McMurray.
[1163] To address health-related community concerns in Fort McKay, the Government of
Alberta recently signed a letter of intent to develop a comprehensive community health
assessment for Fort McKay. The study is to involve the Fort McKay First Nation, Fort McKay
Métis Community, Alberta Health and Wellness, and Alberta Aboriginal Relations working
together to identify community health issues, health-care priorities, and the design and delivery
of new programs to address those priorities. The provincial government and First Nations have
also discussed a similar study in Fort Chipewyan, although no agreement has yet been reached.
[1164] The health care and social services’ quotient calculated by the RMWB indicated that the
demand for these services far exceeds their potential supply locally, which means people have to
find those services elsewhere or their need will not be met. The RMWB pointed out that in the
event that someone has to be flown out by helicopter from one of the sites for medical reasons,
the landing pad is at Number 1 Fire Hall, not at the hospital. The medics must load patients into
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an ambulance and then drive him/her to the hospital. RMWB says this is primarily because the
province has not committed to rebuilding the landing pad at the hospital.
[1165] Shell noted the following information about investments that the province has made to
improve health care services in the region.
•
In response to the Radke Report, the Government of Alberta committed an additional $177
million between 2007 and 2010 to “address health-related growth pressures” in the region.
•
Since 2006, the provincial government has announced plans for and moved forward with
several infrastructure improvements to the Northern Lights Regional Health Centre,
including
•
renovation of the ambulatory and emergency departments ($6.0 million);
•
replacement of sewer line and domestic hot-water circulation piping ($4.5 million);
•
renovation of the intensive care unit ($2.0 million); and
•
renovations to the hospital’s pediatric unit, including more rooms, new beds, new
equipment, and a new nursing station.
•
The Government of Alberta has also provided funding and planning is underway for two new
community health centres in the Fort McMurray communities of Thickwood and Timberlea
($28.2 million, in planning phase) to improve residents’ access to primary care services.
•
The province has also been moving forward with plans to build a new long-term care facility
in Fort McMurray, helping to relieve bed pressures at the Northern Lights Regional Health
Centre.
[1166] The RMWB calculated the retail quotient for the RMWB by using 2006 data for selected
communities. The retail quotient for the RMWB is significantly less than parity and is well
below the retail quotient for the other comparable municipalities included in this analysis. This
indicates that the availability of retail services within the RMWB is well below what is
demanded. Currently, the RMWB has about one-third of the retail services that it needs. The lack
of a pool of potential retail workers in the community is one of the major challenges, made worse
by having a part of the regional work force not resident in the community. The RMWB plans to
construct new buildings that will provide additional retail and office space, particularly targeting
the move of offices of oil sands related companies to the region.
[1167] ACFN raised concerns that its members did not have enough work opportunities in the oil
sands industry and that the opportunities that were available to them, were low paying. ACFN
stated that this problem was caused by lack of education of community members. Furthermore,
working in the industry keeps the workers away from their families and that also has a negative
impact. Working in the oil sands industry also creates “haves” and “have-nots” in the ACFN
community, such that those people who can go off reserve to work are better off than those who
cannot. ACFN also identified other concerns in the work force such as discrimination and lack of
opportunities for advancement for First Nations people. ACFN noted that impact benefit
agreements with companies have supported training initiatives that have helped to address some
concerns.
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[1168] ACFN also had concerns about quality of life. In some cases, improved road access to
areas increases competition for resources by nonaboriginal hunters and trappers. Access
restrictions and other concerns result in its members being deterred from going out to hunt and
fish and therefore having lower catch rates. These factors resulted in higher cost for traditional
activities and more dependence on store-bought foods. Store-bought food is more expensive and
more difficult to find because there are few stores. ACFN believed that its members suffer from
poor health as a result of moving away from traditional food and toward processed food. It stated
that this poor health was exacerbated by the lack of home-care and other health-support
programs. In addition, ACFN believed a lack of respect for ACFN members and its values has
resulted in poor mental health of some of its members.
[1169] ACFN also said that its members were involved in fewer outdoor activities because they
are afraid that the water involved in many of those activities is not safe. For most outdoor
pursuits, ACFN members feel it is necessary to carry drinking water with them, limiting the
distances they can travel.
Analysis and Findings
[1170] The Panel recognizes that the high cost of living, insufficient health and education
facilities, and a lack of retail services deter new community development and make an area less
desirable to live in. The Panel notes that the very high cost of housing in RMWB is significantly
increasing the average cost of living in the region. The Panel further recognizes that Aboriginal
residents of the region are particularly impacted by the lack of availability and cost of housing
and the need to be increasingly reliant on more expensive store-bought foods.
[1171] The Panel recognizes the importance of the region’s Aboriginal population being able to
access contract and employment opportunities. The Panel believes that efforts must continue to
increase participation opportunities and to assist eligible and interested Aboriginal people in
securing more responsible and better paying jobs.
[1172] The Panel is aware of the health care challenges in the region related to insufficient
clinical infrastructure and difficulties in recruiting and retaining qualified staff. High quality and
readily available services are essential in creating attractive well-functioning communities.
While recognizing the staffing and infrastructure challenges faced by health care service
providers in the region, the Panel is encouraged by the recent commitments of the Government
of Alberta to address these key issues.
[1173] To address health-related community concerns in Fort McKay, the Government of
Alberta recently signed a letter of intent to develop a comprehensive community health
assessment for Fort McKay. Although no agreement has yet been reached, the Panel understands
that discussions between the provincial government and First Nations have also been held to
consider a similar study in Fort Chipewyan. The panel is strongly supportive of this approach
and encourages the Government of Alberta to place a priority on timely completion of these
assessments.
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CAPACITY OF RENEWABLE RESOURCES
Evidence
[1174] ACFN explained that its members require access to land of sufficient resource quality
and quantity. It stated that the renewable resources found on the land have to be sufficient to
meet current and future subsistence requirements and cultural needs. It stated that these resources
include routes of access and transportation, water quality and quantity, healthy populations of
game in preferred areas, cultural and spiritual relationships with the land, abundant berry crops in
preferred areas, traditional medicines in preferred areas, and natural landscape for the experience
of remoteness and solitude. ACFN stated that the lands and resources must be accessible within
constraints of time and cost. Other Aboriginal groups expressed similar beliefs.
[1175] The evidence presented below is a summary of evidence provided in earlier sections of
this report and is provided to give context to the reader.
Moose
[1176] Shell stated that there would be no significant effects on moose abundance, habitat, and
movement after closure and reclamation in the LSA. Shell found a high environmental
consequence to moose habitat in the LSA from the Project but a low consequence to moose
abundance in the LSA. Shell also stated that there would be no significant cumulative effects on
moose. Shell indicated that the environmental consequences to moose habitat would be moderate
from the PIC to the application case and high for the PDC. For moose abundance, it would be
moderate for both the PIC to the application case and the PDC. Shell indicated no significant
effects because the resilience of the moose population in the RSA had not been compromised.
[1177] ACFN and other Aboriginal groups stated that moose are considered to be a culturally
important species that is still harvested today, providing an important source of protein for the
community. They expressed concern about the health of moose and the quality of the resource.
ACFN noted that many of its members will avoid the use of moose if there is a perceived
behavioural or physical abnormality. ACFN also stated that its use of moose will be affected by
reduced access to moose habitat and increased industry and recreational access. ACFN indicated
that the Project would affect high-quality moose habitat and that there would be significant
cumulative effects on moose habitat in the RSA.
[1178] OSEC provided evidence from provincial surveys indicating that moose populations are
already declining in the RSA.
Caribou
[1179] Shell indicated that caribou are virtually absent in the LSA. Shell provided a CEA on
caribou in which it stated that caribou are declining to extirpation in the RSA and concluded that
both the application case and the PDC will have significant adverse effects on caribou in the
RSA.
[1180] ACFN stated that caribou is a preferred, unique, and culturally important traditional
resource that is important for knowledge, use, and practice. ACFN indicated it also has a spiritual
connection and relationship with the caribou.
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[1181] ACFN, MNA, NSFMFM, and MCFN disagreed with Shell’s assertion that caribou were
virtually absent in the LSA and provided anecdotal evidence of caribou use in the LSA. Several
Aboriginal groups expressed concern that caribou are declining. ACFN provided evidence
indicating that the Project will remove or affect high-quality habitat and that caribou will be
adversely affected by direct disturbance. It indicated particular concerns about project effects on
culturally important populations of woodland caribou in the RSA and beside the Project LSA
(Kearl Lake area) and about cumulative effects on core habitat near the Project. ACFN also
stated that use of caribou will be affected by reduced access, increased industry and recreational
access, and perceived increases in contamination of traditional resources leading to avoidance or
reduced use.
[1182] EC indicated concern about project effects on nearby critical habitat in the Richardson
Range, indicating that displacement of wolves and their prey may increase predation risks for
caribou. OSEC and EC both expressed concern about cumulative effects on high-quality caribou
habitat in the RSA.
Bison
[1183] Shell indicated that wood bison, a species at risk, were found in the LSA in the past and
that high-quality wood bison habitat would be adversely affected by the Project but that wood
bison do not currently use the area east of the Athabasca River and therefore will not be affected
by the Project. Shell assessed the cumulative effects on wood bison and found no significant
adverse effects as a result of the application case or the PDC.
[1184] ACFN and MCFN both indicated that wood bison is a traditionally important resource.
ACFN noted that declines in this species have already affected their use of this resource. ACFN
further stated that it has documented historic and current hunting of wood bison within the
ACFN’s RSA, which it defined as being 5 km or less from Shell’s Project footprint and that it
has observed the area of the proposed Redclay Compensation Lake and the Firebag River to be
core bison habitat.
[1185] ACFN contended that creation of the Redclay Compensation Lake would adversely affect
bison in the Ronald Lake herd. ACFN expressed its concern about effects on this herd since it is
the only bison herd that can be hunted in ACFN’s traditional territory, therefore effects on the
herd will affect traditional use of the species.
[1186] EC stated that there is currently no recovery strategy for bison; therefore it has identified
no population objectives or critical habitat for the species.
Traditional Plants
[1187] Shell stated that in the LSA the Project will alter 4584 ha (77 per cent of resource) of the
high traditional-use plant potential, 8481 ha (92 per cent of resource) of the moderate traditional
plant potential, and 10 129 ha (70 per cent of resource) of low traditional use plant potential,
during construction and operations. Shell stated that in the RSA, the application case will alter
5749 ha of high, 9623 ha of moderate, and 10 591 ha of low traditional plant potential. Shell
indicated that it designed its planting prescriptions for reclamation to provide a range of ecosite
phases that should support a variety of traditional end-land uses. It indicated that the planting
prescriptions included species that are highly used by First Nations.
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[1188] ACFN stated that the number of plants in Shell’s reclamation sites will be less than that
which currently exists, and Shell did not provide information about how it intends to re-establish
the predisturbance diversity of plant species or how diversity will be enhanced in areas where
direct soil placement is not possible.
[1189] Most Aboriginal groups stated that the areas south of McClelland Lake and around Kearl
Lake are particularly unique because they supply plants that are valued as food and for medicinal
uses.
[1190] ACFN produced evidence of subsistence-use value related to plant gathering in the
Project area and in the RSA. ACFN stated that these subsistence values will be directly or
cumulatively affected by the Project.
[1191] The NSFMFM stated that its members gather a variety of plants in the Project area,
including blueberries and low-bush cranberries.
[1192] FMMFN #468 had concerns about certain plant species that would be potentially affected
by the Project, including a wide selection of berries and traditional medicines such as roots, bark,
and sweetgrass.
[1193] Most Aboriginal groups expressed concerns that the quality and quantity of traditional
plants are declining in the oil sands region. The Aboriginal groups stated that they are concerned
about the contamination of traditional plants and that these concerns foster avoidance of use.
Natural Environment/Landscape
[1194] All the Aboriginal groups raised the concern that the amount of pristine and undisturbed
landscape available for the practice of TLU and Aboriginal and treaty rights is decreasing
because of a wide array of factors, including noise, impediments to access, poorer air quality,
and perceived contamination of resources.
[1195] Fort McKay stated that because of extensive development, the ecological sustainability of
several watersheds is threatened and the environment may have already reached a point where it
is not possible for Fort McKay to sustain its traditional lifestyle.
[1196] ACFN and the NSFMFM discussed the importance of muskeg ecosystems. ACFN also
discussed the importance to its members of being in the natural environment and feeling
connected to the land. It stated that there is a loss of connection to the land resulting from a sense
of alienation from preferred harvesting areas and because of the changes in the land cause by
industrial practices. It also commented that removal of areas affects the knowledge of place
names, histories, and cultural practices.
[1197] According to ACFN and MCFN, their members are avoiding using an increasingly larger
portion of traditional lands because of oil sands related development. Other Aboriginal groups
expressed similar concerns.
[1198] Shell provided information indicating that it would not reclaim certain types of
landscapes, such as peatlands, because no method of reclamation is available. Shell also
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indicated that the reclamation landscape would contain more uplands and fewer lowlands than
what currently exists. Shell also proposed to divert the Muskeg River.
Analysis and Findings
[1199] The Panel notes that several Aboriginal groups are of the opinion that the oil sands region
is reaching a point where renewable resources will not have the capacity to sustain their
Aboriginal or treaty rights. The Panel understands that important resources for Aboriginal use
will be affected in the oil sands region. Wildlife will move out of developed areas and may no
longer be easily accessible or reasonably close to certain groups or individuals. The duration of
these effects will be prolonged, lasting decades, because most reclamation occurs after the
operation of the projects and some habitat types (peatlands) cannot or will not be reclaimed. The
Project will adversely affect some traditional resources in the LSA, and given that the Project is
nearly surrounded by other oil sands projects, the total area lost for TLU is several times larger
than the Project footprint alone. The Panel’s TOR require that the Panel assess the capacity of
renewable resources that are likely to be significantly affected by the Project in order to meet
current and future needs.
[1200] The Panel notes the importance of caribou, moose, and bison to Aboriginal people, for
consumption and from a cultural perspective.
[1201] The Panel notes that caribou and wood bison are species at risk in the oil sands region,
and populations are already considered not to be self-sustaining. The Panel finds that populations
of woodland caribou will require considerable protection and wood bison will require informed
management, in order to be restored to levels that can be self-sustaining and available as a
resource for Aboriginal people.
[1202] The Panel further notes that evidence provided by both Shell and other interested parties
indicated there would be project and cumulative effects on caribou.
[1203] The Panel notes evidence from Shell that bison declines are predominantly a result of
disease. The Panel also notes ACFN’s identification of core bison habitat close to the Project’s
footprint and within the area of the proposed Redclay Compensation Lake.
[1204] The Panel observes that moose, although not a species at risk, may be declining in the
area. The Panel finds that regardless of whether the moose population is declining, Aboriginal
people are not using this resource as they did in the past because of access issues, perceived
contamination, and concerns about the health and quality of moose as a subsistence resource.
[1205] The Panel notes that because caribou, moose, and bison are large, wide-ranging mammals
with extensive home ranges, the RSA is the more appropriate spatial boundary for assessing
capacity of these resources. The Panel further notes that the most appropriate temporal boundary
is one Aboriginal generation, given that the effective loss of use of caribou, bison, and moose for
more than one generation could result in loss of traditional knowledge of these resources. Also,
the Panel finds that the current reduction in use of caribou, moose, and bison is already having
adverse effects on Aboriginal lifestyle and culture.
[1206] The Panel finds that the evidence presented for woodland caribou, wood bison, and
moose suggests that the needs of the Aboriginal people are currently adversely affected. The
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Panel also finds that the evidence indicates that woodland caribou, wood bison, and moose
habitat will be cumulatively affected in the future in the RSA. The Panel notes that reclamation
may eventually restore some habitat for these species in the RSA but that the current and future
use for Aboriginal people is likely to be affected. The Panel further notes that most reclamation
will not happen during the lifetime of the current Aboriginal users and that the effects will last
for more than a generation. Additionally, the Panel notes that peatlands may never be able to be
reclaimed and reliance on this habitat by any of these species will therefore be permanently
affected.
[1207] The Panel has determined that significant adverse cumulative effects to caribou have
occurred and will continue in the application case and the PDC and this has and will have a
significant effect on the ability of Aboriginal people to make use of this resource to meet their
current and future needs.
[1208] The Panel has determined that cumulative effects on moose and wood bison are adverse
but not likely to be significant. The Panel’s determination for these species is based in part on the
absence of reliable population data for moose and the lack of information on the location of
important wood bison habitat which made it difficult to assess the significance of effects.
However, the Panel believes that project and cumulative effects on these species are adverse and
this has had and will have an impact on the ability of Aboriginal people and other users to use
these species to meet their current and future needs.
[1209] The Panel recognizes that the oil sands region provides habitat for many traditional plants
that are still important to Aboriginal people.
[1210] The Panel recognizes that clearing of the LSA will result in a loss of traditional plant
habitat for at least one Aboriginal generation and that reclamation may or may not result in the
re-establishment of traditional plants. The Panel notes that the Project will affect a considerable
area of high and moderate traditional plant potential areas. The Panel further notes that the
Project is in an area already affected by oil sands development; therefore, locating traditional
plants in areas accessible by and close to some Aboriginal groups will be difficult.
[1211] The Panel finds that the capacity of traditional plants will be significantly affected by the
Project. The Panel acknowledges that this will in turn affect the TLU of the Aboriginal people
and affect the transmission of Aboriginal culture.
[1212] The Panel recognizes that the ability to use and enjoy the land is of utmost importance to
Aboriginal people and their culture. The Panel understands that Aboriginal people have a
spiritual connection to the land.
[1213] The Panel notes that during construction and operations, the Project area will not be
available for use by Aboriginal groups in the traditional way. The Panel further notes that, after
reclamation, the landscape and ecosites will be changed as there will be more uplands and fewer
lowlands, including that peatlands will be removed and the course of the Muskeg River will be
altered. The Panel acknowledges that the existing cultural, spiritual, and aesthetic values that the
Aboriginal people have in this area may be altered due to the changes. The Panel recognizes that
the effects of previous and current industrial development in the RSA are already limiting the
amount of pristine land available for nonconsumptive use.
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[1214] The Panel finds that the capacity of the natural landscape for use by Aboriginal people
for solitude, cultural practice, and spirituality will be significantly affected in the LSA for a time
greater than one generation and may be permanently affected because of changes in land shape,
form, and ecosite types. The Panel finds that the natural landscape in the RSA is already
significantly affected by current and approved projects, and that this is affecting current and
future needs. The Panel acknowledges that this will in turn affect the use and knowledge of this
area by Aboriginal people.
EFFECTS ON ABORIGINAL TRADITIONAL LAND USE, RIGHTS, AND CULTURE
[1215] To assess the effects of the Project on Aboriginal TLU, rights, and culture, it is necessary
to consider the effects of the Project on the biophysical resources important to Aboriginal people
and other economic and sociocultural effects of the Project. The discussion in this section
therefore draws on evidence and Panel findings presented in other sections of the report.
Although this results in repetition of material, the Panel believes that this repetition is warranted
to provide a fulsome discussion of the issues and to produce a standalone section that does not
require the reader to refer to other sections.
Shell’s Assessment of Effects on Aboriginal Traditional Land Use, Rights, and Culture
Evidence
Shell’s Approach to Assessment of Effects on Traditional Land Use
[1216] Shell stated that the Project will be located within the traditional lands of FMFN, ACFN,
and MCFN. Shell stated that the Project was also on the northern fringe of the traditional
territory identified by the FMMFN #468 and that the Métis living in the Fort McMurray region
also make use of the lands for traditional activities.
[1217] Shell submitted that it had assessed the impacts of the Project on TLU as required by the
terms of reference for the EIA. Shell stated that it used the effects of the Project on resources
used for traditional activities, and on the access to such resources, as a proxy for the assessment
of the effects of the Project on TLU. Shell submitted that if the Project was not likely to have a
significant adverse effect on the resources in the region or significantly impede access to the
resources in the region, it would not expect the Project to result in significant adverse effects to
the traditional land users’ ability to practice traditional pursuits.
[1218] Shell stated that it defined a local study area for traditional land use (TLU-LSA) based on
the registered fur management areas (RFMAs or traplines) that intersect with the Project in order
to determine the traditional use in the area and to collect traditional knowledge. Shell submitted
that traplines are an appropriate basis for defining LSAs for TLU since they provide an important
location from which traditional activities are conducted. Shell referenced an FMFN study that
confirmed the strong relationship between traplines and traditional lifestyles. The study said
“The term trapline as used in this study means more than just a place to harvest furs for sale on
the commercial market. It means the territory where people hunted, fished, picked berries,
gathered duck eggs, and trapped fur for local domestic consumption and trade. The trapline was
the community food supply for the people interviewed in this TLUOS [traditional land use and
occupancy study]; it was and is synonymous with meat for the table, with stewardship of all
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natural resources; with extended family sharing; with socialization of children; with the role of
the elders as carriers and teachers of traditional environmental knowledge; and with cultural
sustainability.”
[1219] In its EIA, Shell defined the TLU-LSA as the six traplines that overlap the Project and
PRM development areas, including RFMAs 2939, 1275, 2331, 1716, 1714, and 2137. RFMAs
2331, 1716, 1714, and 2137 are located on the east side of the Athabasca River and are most
closely associated with the Project. According to Shell, these traplines were registered to an
ACFN member (1714), a Métis person (1716), an FMFN member (2137) and a nonaboriginal
person (2331).
[1220] Shell stated that the objectives of the TLU study for the TLU-LSA were to:
•
document historical and current land use, and the traditional knowledge of the Project
development areas and surrounding areas by local trappers;
•
document the TLU and traditional knowledge of the FMFN, ACFN, MCFN, and FMMFN in
relation to the Project development areas; and
•
provide information to help minimize the impacts of the Project on TLUs.
[1221] Shell interviewed the holders of the directly affected traplines to assess the effects of the
Project on traditional resources and on traditional use. Shell provided a description of the
hunting, trapping, and gathering activities of the trapline holders and evidence of other types of
use on the traplines, including the presence of cabins and sweat lodges. Shell also provided
information on use of the trapline areas by other residents or users in the Cultural Environmental
Setting Report (Cultural ESR) submitted as part of the EIA. Shell stated that it conducted no
other individual interviews to assess the effects of the Project on access to traditional resources at
the TLU-LSA level.
[1222] Shell stated that it also relied on a variety of written and historical information sources,
previous project-specific impact assessment reports, and project-specific consultation with
FMFN, MCFN, and ACFN to complete its TLU assessment.
[1223] Shell stated that it defined three regional study areas for the TLU assessment (TLU-RSA)
based on the traditional territories of FMFN, ACFN, and MCFN and the Culturally Significant
Ecosystems (CSEs) of the FMFN. Shell stated that while available information suggested that
FMMFN #468 may have harvested in the area around McClelland Lake, the large majority of its
traditional activities have occurred south of Fort McMurray and the Clearwater River, and
therefore, the Project was unlikely to have a significant effect on its TLU practices.
[1224] Shell acknowledged that members of the MNA, have ties to the land similar to those of
the First Nations, pursue a traditional way of life within this area, and are long-standing residents
of the communities of Fort Chipewyan, Fort McKay, Fort McMurray, and other smaller
communities in northeastern Alberta. Shell noted that although it did not identify a specific TLURSA to represent the focus of Métis traditional uses, it recognized that Métis people were
participants in regional TLU patterns through active operation of RFMAs, as well as hunting,
fishing, and gathering throughout the RSAs.
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[1225] Shell stated that the zones of traditional use defined in the TLU-RSAs represent the joint
use of a region and its resources by the members of nearby Aboriginal communities that practice
relatively similar traditional pursuits and that much of the information detailed in the assessment
was sufficiently general to have application to other Aboriginal peoples.
[1226] Shell stated that it assessed the effects of the Project in combination with existing,
approved, and planned regional developments in relation to the RFMAs and the TLU-RSAs and
considered them in relation to these traditional areas and the traditional ways of life that were
recorded in the TLU studies and project-specific impact assessments used by Shell.
[1227] Shell stated that it had integrated traditional wildlife knowledge and resource use data
into its ESR sections on mammals, birds, and important wildlife habitat and that it also used TEK
and TLU information in some sections of its EIA, including traditional knowledge related to the
consumptive and medicinal use of plants and human health. Shell acknowledged that a CEMAsponsored workshop held in 2005 provided some of the TEK used in the EIA.
[1228] Shell stated that it received additional information from the Aboriginal groups since the
EIA was submitted in 2007 but this additional information either added nothing new or did not
change the initial conclusions of the EIA. Shell stated that it incorporated some of this additional
information, such as the use of water routes, in the subsequent cultural effects assessment that it
completed.
[1229] Shell stated that it had and was continuing to consult with the Aboriginal groups whose
traditional territories overlapped the proposed Project area to further enhance its understanding
of traditional use activities in the area.
[1230] The Aboriginal groups raised several concerns regarding the methodology Shell used to
assess effects to Aboriginal TLU and Aboriginal and treaty rights.
[1231] ACFN disagreed with Shell that an assessment of the significance of effects on resources
important to traditional users and on access to such resources could be used as a proxy for
assessing the significance of the effects on TLU. ACFN also questioned Shell’s use of the
RFMAs as the basis for defining the TLU-LSA and Shell’s reliance on TEK and TLU provided
by the RFMA holders. ACFN also said that the impacts on First Nations’ traditional resources
were not rigorously measured in any part of Shell’s assessment. ACFN stated that in the absence
of specific data, measures, thresholds, and criteria to assess impacts on Aboriginal rights, it is
difficult to understand Shell's assertion that it has assessed such impacts.
[1232] ACFN also submitted that Shell placed an inappropriate reliance on far future and
uncertain reclamation activities to mitigate Project effects on the environment and TLU. With
respect to traditional knowledge and land use, ACFN considered the loss of an area for more
than one generation to be permanent.
[1233] FMMFN #468 argued that Shell should have used a larger LSA and that the significance
of Project effects should also have been considered at the LSA level. FMMFN#468 also argued
that the RSA was too large because Shell originally established it to encompass two projects and
it was therefore inappropriate for one project. FMMFN #468 also said Shell had failed to
appropriately consider ecological context when assessing effects to both terrestrial resources and
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Aboriginal and treaty rights. FMMFN #468 said that ecological context needs to consider the
size of the footprint and the amount of other disturbance in the area.
[1234] ACFN, MNA, FMMFN #468, and the NSFMFM and Clearwater Band were concerned
about the extent to which Shell incorporated TLU or TEK information provided by the
Aboriginal groups into the EIA.
[1235] The specific concerns and issues identified by the Aboriginal groups are discussed more
fully in the following sections for each Aboriginal group.
Shell’s Assessment of Effects on Traditional Land Use
[1236] Shell’s EIA included a qualitative analysis of the effects on TLU within the TLU-LSA
and TLU-RSAs based on historic information provided by regional traditional land users and
specific information from holders of RFMAs in the TLU-LSA. In addition, it completed a
quantitative analysis to determine the total area of land that would be permanently or temporarily
unavailable for TLU, and the amount of land that would be available for TLU after reclamation
of the Project.
[1237] Shell stated that the Project would result in a direct loss of land available for trapping,
hunting, and plant harvesting in each of the RFMAs. Two trapper cabins within the Project area
would need to be relocated and two berry harvesting areas within the Project area would also be
affected. Shell estimated that the total percentage of disturbance for the RFMAs in the
application case would range from 4 to 73 per cent with the Project accounting for less than 1 per
cent to 27 per cent of the disturbance. A portion of Table 8.1-1 from Volume 5 of Shell’s EIA is
reproduced below.
RFMA
1714
1716
2137
2331
Area of
RFMA
30 096
23 657
27 097
31 389
Base case total disturbance
area [ha (per cent)]
18 010 (46)
6 872 (29)
10 599 (39)
1 106 (4)
Application case total disturbance
area [ha (per cent)]
28 373 (73)
10 217 (43)
11 289 (44)
1 132 (4)
Change due to Project
[ha (per cent)]
10,364 (27)
3 345 (14)
690 (3)
26 (<1)
[1238] On a regional scale, Shell estimated that the combined Project and PRM would increase
the area of disturbances within the MCFN and ACFN RSAs by less than 1 per cent each. Within
the all-traditional-uses CSE for FMFN, the Project would increase the area of disturbance by 2
per cent for moderate use areas, and by less than 1 per cent for the low use and intense use areas.
[1239] Shell stated that to mitigate the potential impacts of the Project on TLU, it would:
•
provide compensation to directly affected RFMA holders;
•
continue consulting with key Aboriginal groups including FMFN, ACFN, and MCFN;
•
facilitate access across the Project area by trappers to their traplines;
•
provide cultural diversity awareness training to Shell employees and contractors; and
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•
conduct ongoing consultation with key Aboriginal groups and participate in regional
planning initiatives to ensure closure and reclamation plans consider the long-term
sustainability of TLU activities.
[1240] Shell also stated that it would replace through reclamation, habitats that can support
traditional plant harvesting and hunting or trapping of species such as moose, fisher, lynx,
beaver, and muskrat in the far future.
[1241] Shell provided its assessment of the significance of project effects on TLU in November
2011. Shell stated that in determining the significance of the Project’s effects on TLU, it gave
consideration to what constitutes a significant effect to the resources used by traditional resource
users from a scientific perspective and in an ecological context. Shell stated that while it did not
consider the value placed on the resources beyond a scientific or ecological context in its
determination of significance, the agencies responsible for making public interest decisions on
development applications should be aware of the value placed on these resources by local users
as part of their decision-making process.
[1242] Shell concluded that since it did not consider effects on fish and fish habitat a likely
significant adverse effect, the Project’s net effects on fishing as a TLU in the TLU-RSA was also
not a likely significant adverse effect.
[1243] Shell concluded that the Project’s effects on hunting and trapping as a TLU in the
terrestrial RSA were also not likely significant adverse effects because it did not consider the
Project’s effects on wildlife and wildlife habitat a likely significant adverse effect.
[1244] Shell’s assessment concluded that the Project would have negligible effects on traditional
plant potential at the RSA level and, therefore, the Project would not have a likely significant
adverse effect on traditional plant potential. Shell, therefore, concluded that the Project’s effects
on traditional plant gathering were not likely significant adverse effects.
[1245] Shell concluded that the Project would not have a significant adverse effect on
navigation, including navigation by Aboriginal people because its assessment concluded that the
Project would have negligible effects on water levels and flow in the Athabasca River and lower
reaches of the Muskeg River and the effects of the diversion of the upper reaches of the Muskeg
River would be mitigated.
[1246] Shell stated that it assessed the loss of specific traditional resources and changes to access
routes. Shell did not expect the Project to result in significant effects to the traditional land users’
ability to practice TLU activities in the region because it did not expect the Project to have a
significant adverse effect on the resources in the terrestrial or aquatics RSAs and the Project
would not prevent traditional land users from accessing any areas in the TLU-RSAs, except
within the Project development area itself before reclamation. Shell also stated that it has an
access management plan in place that provides either alternative or controlled access across
existing operating mine sites for traditional users and trappers before reclamation.
[1247] Shell’s May 2012 updated CEA provided an assessment of the amount of land that was or
would be unavailable for use by RFMA holders due to developments in the base case,
application case, and PDC. In its updated assessment, Shell assessed the effect of the Project on
RFMA 2172 instead of RFMA 2331 that was originally included in the EIA. RFMA 2172 is
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located south of RFMA 1714 whereas RFMA 2331 is located on the north shore of Lake
McClelland. According to Shell’s updated assessment, the amount of disturbance in the
application case would range from 53 to 67 per cent of the RFMAs. Table 3.5-1 from the May
2012 submission is reproduced below. Shell noted that the RFMAs are already significantly
disturbed in the base case and it expected no change to the amount of disturbance between the
application case and PDC.
RFMA
Area of
RFMA
[ha]
2012 base case total
disturbance area
[ha]
#1714
#1716
#2137
#2172
38 573
23 657
27 097
37 071
17 257
10 324
12 822
16 179
2012 application case
total disturbance area
Percentage of
RFMA
45
44
47
44
[ha]
25 636
13 527
14 369
23 318
Percentage
of RFMA
67
57
53
63
2012 planned development
case
total disturbance area
[ha]
Percentage
of RFMA
25 636
67
13 527
57
14 369
53
23 318
63
[1248] Shell’s May 2012 updated CEA provided an assessment of the amount of land within the
FMFN all-traditional-uses CSE that was or would be unavailable for TLU for the base case,
application case, and PDC. Shell estimated the amount of disturbance for both the moderate and
intense use areas to be 31 per cent in the application case but noted that almost all of this
disturbance is already present in the base case. Table 3.5-2 from the May 2012 submission is
reproduced below. Shell noted that under the 2012 PDC, disturbances to the all-traditional-uses
CSE generally occur throughout the CSE, but are significantly higher in the intense and
moderate use areas.
CSE
Low use
Moderate
use
Intense use
Total
Total area
of CSE
[ha]
2 142 679
861 563
309 215
3 313 457
2012 base case total
disturbance area
[ha]
percentage
of CSE
311 203
15
248 841
29
94 401
654 445
31
20
2012 JME application case
total disturbance area
[ha]
percentage
of CSE
311 203
15
269 169
31
94 401
674 773
31
20
2012 planned development
case total disturbance area
[ha]
percentage
of CSE
356 536
17
315 191
37
110 567
782 294
36
24
[1249] Shell’s May 2012 updated CEA provided an assessment of the amount of land within the
FMFN large-game-harvesting CSE that was or will be unavailable for TLU for the base case,
application case, and PDC. Table 3.5-3 from the May 2012 submission is reproduced below.
Shell noted that the amount of disturbance is highest in the intense-use-area CSE, with estimates
ranging from 32 per cent in the application case to 39 per cent in the PDC.
CSE
Total area
of CSE
[ha]
Low use
Moderate
use
Intense use
Total
1 347 998
1 723 226
1 018 146
4 089 370
2012 base case total
disturbance area
[ha]
percentage
of CSE
46 019
3
325 961
19
302 988
674 968
208 • 2013 ABAER 011 (July 9, 2013)
30
17
2012 JME application case
total disturbance area
[ha]
percentage
of CSE
46 019
3
325 961
19
323 316
695 296
32
17
2012 planned development
case total disturbance area
[ha]
percentage
of CSE
53 300
4
358 067
21
393 962
805 329
39
20
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[1250] Shell’s May 2012 updated CEA provides an assessment of the amount of land within the
FMFN traditional-plant-harvesting CSE that was or will be unavailable for TLU for the base
case, application case, and PDC. Table 3.5-4 from the May 2012 submission is reproduced
below. Shell noted that the amount of disturbance within the traditional plant harvesting CSE is
highest in the intense and moderate use areas, ranging from 34 to 55 per cent depending upon the
area and case.
CSE
Total area
of CSE
[ha]
Low use
Moderate
use
Intense use
Total
1 396 491
396 759
74 917
1 868 167
2012 base case total
disturbance area
[ha]
percentage
of CSE
322 516
23
123 063
31
35 268
480 846
2012 JME application case
total disturbance area
[ha]
percentage
of CSE
330 620
24
135 286
34
47
26
35 268
501 174
2012 planned development
case total disturbance area
[ha]
percentage
of CSE
391 989
28
168 537
42
47
27
41 498
602 024
55
32
[1251] Shell’s May 2012 updated cumulative effects case provides an assessment with respect to
the amount of disturbances within the terrestrial RSA portion of the ACFN, FMFN, and MCFN
traditional territories for all cases. Table 3.5.5 from the May 2012 submission is reproduced
below. Shell noted that the total amount of disturbance amounted to 6, 11, and 19 per cent of the
traditional territories of MCFN, ACFN, and FMFN, respectively and that almost all of this
disturbance is already present in the base case.
Traditional
Territory
Total area
of
traditional
territory
Area of
traditional
territory
within
terrestrial
RS
[ha]
Units
[ha]
Athabasca
Chipewyan
First
Nation
Fort McKay
First
Nation
Mikisew
Cree First
Nation
4 383 440
1 401 026
3 525 101
8 641 549
2012 base case total
disturbance area
within terrestrial RSA
portion of traditional
territory (TT)
[ha]
2012 JME application
case total disturbance
area within terrestrial
RSA portion of
traditional territory (TT)
[ha]
2012 planned
development case
total disturbance area
within terrestrial RSA
portion of traditional
territory (TT)
[ha]
percentage
of TT
568 418
13
474 280
percentage
of TT
11
494 608
percentage
of TT
11
2 130 001
650 454
18
670 782
19
779 778
22
1 673 308
523 501
6
543 829
6
646 250
7
[1252] Shell said that its assessment of cumulative effects was difficult to do on a project-byproject basis and should be done at the regional scale. Shell said that some of the concerns raised
by the Aboriginal groups are cumulative effects of regional development unrelated to the Project
and that a project-specific assessment is not the appropriate place to address these broad regional
issues. Shell stated that it would support a regional CEA with the involvement of the area’s
traditional land users, and supported the inclusion or consideration of such a study in the ongoing
refinement and development of LARP. Shell stated that LARP and CEMA are the appropriate
forums to address and manage cumulative effects across the oil sands region through setting
regional objectives and quantifiable targets, and setting aside new conservation areas. Shell was
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of the opinion that a regional assessment should address the cumulative effects over a large
region in order to inform the objectives of the regional development in terms of economic
development, social responsibility, and environmental protection. Shell was of the opinion that
Aboriginal traditional knowledge should be considered as a part of this regional assessment.
Shell’s Approach to the Assessment of Effects on Aboriginal Culture
[1253] Shell stated that the focus of its assessment of the potential effects of the Project on
elements of Aboriginal culture was on project effects on the culture of potentially impacted
Aboriginal groups whose traditional use overlapped the Project footprint, including the ACFN,
FMFN, MCFN, FMMFN #468, and Métis Locals 63, 125, and 1935. Shell stated that it based its
cultural assessment on a review of its consultation records, TLU information, literature
pertaining to and written by Aboriginal people in the region, reports and academic literature, the
discipline-specific impact assessments from its EIA, and other documents. Shell stated that its
cultural assessment relied in part on studies commissioned by the Aboriginal communities
themselves, including documents prepared by the FMFN, ACFN, and MCFN specifically for the
Project. Shell stated that although available information suggested that FMMFN #468 engaged in
less traditional activity in the general area in which the Project is situated, the cultural assessment
assumed that the Project's potential effects to their cultural elements would be similar to the
assessed effects on cultural elements of other Aboriginal groups.
[1254] Shell stated that the significance of impacts on the exercise of Aboriginal rights and
interests could not be determined in the same manner as the biological or environmental KIRs
and that a determination of significance of impacts to Aboriginal rights and interests involves
consideration of more than simply the ecological effects on a particular KIR being impacted
within the TLU-LSA and TLU-RSA. Shell stated that the determination of significance would
require consideration of the extent to which a KIR was preferentially used or accessed by an
Aboriginal group and whether there were other sociocultural or economic factors that contribute
to the ability or desire of an Aboriginal group to exercise particular rights based on that KIR.
[1255] Shell stated that to assess project effects on Aboriginal culture, it established linkages
between the Project’s activities and potential changes or effects on tangible and intangible
elements of Aboriginal culture. Shell defined tangible elements of culture as including those
things that can be seen or touched and were the physical resources upon which cultural practices,
values, or beliefs rely, such as culturally important plant and animal species, hunting areas,
landscapes, and spiritual sites. Shell defined intangible elements of culture as those things that
cannot be seen or touched but are nonetheless important to culture such as language, values,
traditional knowledge, oral history, social relationships, spiritual or religious beliefs, and
customs. Shell determined the linkages by using TLU reports from the Aboriginal groups. Shell
stated that it relied on its EIA to identify the impact of the Project on various receptors that are
culturally important to Aboriginal people and on the interviews with the trapline holders in order
to gather information on impediments to access.
[1256] Shell stated that if a tangible element of culture, such as a wildlife species or traditional
plant was not affected by the Project or remained accessible in the region, it expected no effects
on TLU and no effects on the intangible elements of culture such as the passing on of traditional
knowledge.
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[1257] ACFN was critical of Shell’s approach to the assessment of social, economic, and
cultural effects on ACFN. ACFN stated that Shell’s socioeconomic assessment focused narrowly
on mainstream economic issues and did not appropriately consider the unique interests, values,
and culture of ACFN. Similarly, ACFN was of the view that Shell’s cultural assessment suffered
from several methodological shortcomings and did not provide a proper assessment of the
impacts of the Project or oil sands development more generally on ACFN culture.
Shell’s Assessment of Effects on Aboriginal Culture
[1258] Shell noted that Aboriginal persons in the oil sands area have experienced a series of
changes in their lifestyle over the last 50 years, some positive and some negative. Shell stated
that the oil sands industry was an important factor of change in Aboriginal lifestyle in the
Athabasca region. The taking up of land for industrial purposes, the use of regional water
sources, increased opportunities for engagement in the wage economy, and an increased
nonaboriginal population in the region were some of the factors that have collectively
contributed to social and economic changes within the Aboriginal communities, including
changes to the extent to which individuals participate in TLU and cultural activities or adopt
nonaboriginal cultural values or practices.
[1259] Shell provided a summary of the mitigation measures it has taken or plans to take to
mitigate the effects of the Project on Aboriginal culture. These measures include but are not
limited to:
•
consulting with key Aboriginal stakeholders to ensure that it understood impacts to TLU and
cultural activities and that it identified appropriate mitigation;
•
providing support for Aboriginal training, employment, and business development;
•
ensuring access across Project lands is facilitated;
•
providing support for programs to collect and retain TLU information and TEK; and
•
supporting various community-based cultural events and initiatives.
[1260] Shell determined that the effects of the Project on tangible and intangible elements of
culture would range from negligible to moderate. It considered many of the effects minor, such
as project-related effects to the availability of lands for traditional activities, availability of
wildlife habitats, ability to pass on traditional knowledge, and project-related effects on language
retention, income disparity, and increases in nonaboriginal population. It assessed the greater
effects to be related to visual aesthetics, which will have an effect on wilderness character and a
sense of solitude. Table 8 from the May 2012 cultural assessment provides a summary of the
expected impacts to culture and is reproduced below.
Table 8 Elements of Culture and Project Effects Summary
Element of culture
Project Effect on Element of Culture
Availability of land for traditional
activities
The project is expected to have a small effect on the availability of land for
traditional activities. Aboriginal people will continue to have opportunities
to hunt, trap, and fish and pursue other traditional activities and pass on
skills and TK to successive generations.
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Element of culture
Project Effect on Element of Culture
Ability to access land and water
resources for traditional activities
Project-related activities are expected to have a negligible environmental
consequence on land access in the LSA and RSA. Aboriginal people will
retain access to land to carry out traditional activities.
Availability of traditional
resources to sustain harvests
and other cultural activities
The environmental consequences of the Project on the availability of large
game and furbearers at the regional and local scales were assessed to be
negligible. Hunting opportunities are not expected to be affected by the
Project.
The environmental consequences of Project activities on traditional plants
are expected to result in a negative moderate environmental consequence
to high traditional plant potential areas in the LSA during construction and
operations. At the RSA, the JME results in a negligible environmental
consequence to high traditional plant use areas during construction and
operations.
The Project’s effects on fish abundance were assessed to be negligible.
The effects of the Project on traditional plant harvesting were assessed as
moderate in the LSA and negligible at the RSA level.
Availability to support wildlife,
aquatic and plant resources
The environmental consequence of Project impacts on large game and
furbearer habitat are expected to be moderate to high at the local level.
The Project is expected to have some effect on intangible aspects of
culture as they relate to the availability of wildlife habitats. These effects
are expected to be limited to traditional activities occurring at the two
directly affected RFMAs held by members of the FMFN, and an RFMA
held by a member of the ACFN.
Historic resources
The Project is predicted to have a negligible direct effect on historical
resources. Indirect effects are predicted to be negligible to low.
Availability of trusted sources of
water for consumption
The Project is expected to result in small to negligible changes to water
quality. Fish, an important part of diet, will not be affected due to any
deterioration of water quality.
Air quality
There will be changes in ambient air quality that will have a negligible to
low environmental consequence.
Human health risk
Project-related emissions are predicted to have minimal impacts on
human health as a result of inhalation of acrolein, long-term inhalation of
hydrogen sulphide, and long-term inhalation of nasal irritants.
Incremental cancer risk due to exposure to carcinogens is assessed as
negligible. The Project is not expected to contribute to potential adverse
wildlife health effects. Aboriginal people can remain confident in country
foods.
Noise and visual effects
During Project operations, the environmental consequences of projectrelated visual effects were assessed to be negligible to moderate. To
manage noise, Shell will develop an operational noise management plan
and implement it during detailed design to address the potential for
moderate magnitude impacts. Potentially affected parties will be consulted
during Project construction and operations regarding noise levels.
Noise impacts from the Project were assessed as negligible at Fort
McKay; intermittent noise cannons may be heard by FMFN and ACFN
trappers in the vicinity of the Project. Impacts on visual aesthetics will be
mitigated as the project development area will be reclaimed and facilities
will be decommissioned and removed. The magnitude of visual aesthetics
impacts as a result of the Project will be reduced to negligible. Therefore,
the environmental consequence of the Project on all landscape units will
be negligible.
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Element of culture
Project Effect on Element of Culture
Participation in wage
economy
The Project’s contribution to the expansion of wage economy
opportunities for Aboriginal persons and companies is expected to be
small in view of other already existing opportunities. Increased
employment of Aboriginal people is a benefit.
Language retention
Aboriginal language retention has been dropping for some time, and is
expected to continue regardless of the Project’s development. The
Project’s contribution to the decline is considered to be small.
Effects of increase in nonAboriginal population
The effects of increased population growth in the region as a result of
Project activities is considered to be small, as competition for natural
resources is not expected to increase due to Shell’s workforce
management. Hunting success is not expected to be affected.
[1261] In summary, Shell submitted that the Project would have a negligible or very minor effect
on the elements of Aboriginal culture. Shell acknowledged that there may be some residual
effects of the Project on the intangible elements of Aboriginal culture; however, Shell did not
complete a CEA for these impacts.
Analysis and Findings
Effects on Traditional Land Use and Rights
[1262] The Panel notes that the Aboriginal groups raised a number of concerns about the
methodology that Shell used to assess the potential impacts of the Project on TLU and
Aboriginal and treaty rights. The most significant issues raised were related to Shell’s use of the
RFMAs as the basis for defining the LSA for TLU, the emphasis it placed on information
provided by RFMA holders in assessing impacts to TLU and Aboriginal and treaty rights, the
large size of the RSA and its use as the basis for determining significance of effects, and the
extent to which Shell incorporated TLU or TEK information provided by the Aboriginal groups
and communities into the assessment.
[1263] The Panel notes that Shell appears to have relied to a significant degree on information
provided by the four trapline holders to establish the linkage between project effects and
potential impacts to TLU and Aboriginal rights and interests. While the Panel believes
incorporating information from the trapline holders into the assessment is appropriate and
important, the Panel agrees with ACFN that the RFMA holders’ rights are distinctly different
from Aboriginal and treaty rights and that the trappers’ use of the land may not accurately
represent the range of Aboriginal TLU and cultural activities practiced by First Nations or other
Aboriginal groups. The Panel believes that in order to assess project effects on Aboriginal TLU
and Aboriginal and treaty rights within an LSA defined by the traplines, one would have to
assess the effects for all of the Aboriginal groups that use the trapline area, not just the trapline
holders, and the assessment would need to consider all types of traditional use.
[1264] The Panel acknowledges that Shell did make use of other sources of information on TLU
and there is evidence of use of information other than that which Shell gathered from the trapline
holders in its Cultural ESR. However, it is not clear to the Panel how or to what extent Shell
incorporated this information into its assessment of Project and cumulative effects on Aboriginal
TLU. As a result, the Panel is of the opinion that Shell’s assessment of the effects of the Project
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on TLU, largely based on interviews with four trapline holders, is insufficient to characterize the
Aboriginal traditional use in the Project area.
[1265] In the Section Methods Used to Assess Effects on Terrestrial Resources, the Panel noted
its concerns about the large size of the RSA and its use as the basis for assessing the significance
of Project and cumulative effects on terrestrial resources. The use of an RSA that is very large
compared with the size of an LSA or project footprint has the effect of diluting potential effects
and may do so to the point where they do not appear to be significant. The Panel has a similar
concern about Shell’s choice of RSAs for the assessment of effects to TLU and Aboriginal and
treaty rights. The Panel does not believe that use of the entire traditional territory of a First
Nation or Aboriginal group is an appropriate basis for determining the significance of effects.
These traditional territories tend to be very large and not all areas of the traditional territory may
be used or are readily accessible for TLU or cultural activities. The Panel does not accept that the
effects on TLU or Aboriginal and treaty rights are not significant so long as resources are
available anywhere within the traditional territory of a First Nation or Aboriginal group. The
Panel believes that the resources must be in areas that are familiar and accessible to Aboriginal
persons with a reasonable level of effort.
[1266] The Panel notes that Shell obtained most of the TEK used in the EIA from the trapline
holders, a CEMA-sponsored community workshop held in 2005, and prior studies completed for
other projects. Shell did not explain how the project-specific TEK from only four trapline
holders was sufficient for the Project. The Panel also notes that the CEMA-sponsored workshop
gathered TEK from “participants” and community residents from Fort Chipewyan and Fort
McKay without clearly identifying to which First Nation or Aboriginal organization the
participants belonged. The Panel is therefore of the opinion that the TEK gathered from the
trapline holders and CEMA-sponsored workshop alone is not sufficient to identify the effects of
the Project on the TLU activities or rights of individual First Nation or Aboriginal groups. The
Panel also notes that, in its May 2012 submission, Shell replaced RFMA 2331 by RFMA 2172 as
a potentially affected trapline. The Panel agrees that it is relevant to include RFMA 2172 but is
unaware of any interviews that Shell conducted in order to assess the TLU or collect TEK in
relation to the area where RFMA 2172 is found.
[1267] The Panel understands the challenges associated with attempting to reconcile information
collected by western scientific methods with TEK provided by Aboriginal groups or individuals.
The Agency’s guidance document, “Considering Aboriginal traditional knowledge in
environmental assessments conducted under the Canadian Environmental Assessment Act –
Interim Principles”, states that where TEK and western knowledge cannot be reconciled, the
EIA practitioners should juxtapose what is suggested by each knowledge system in the EIA
report and demonstrate how they have considered each in their EIA. The Panel notes that Shell
did not do this and it is unclear to the Panel how Shell considered the TEK it received. Shell’s
assertion that all of the TLU and TEK information it received from the Aboriginal groups since
filing the EIA in 2007 did not provide any new information or change the conclusions of the EIA
is somewhat surprising. The Panel would be concerned if the inability to reconcile TEK with
scientific data was used as justification for limiting the utilization of the TEK in the analysis.
[1268] The Panel finds that Shell’s approach for the assessment of project effects on TLU does
not consider whether there are other sociocultural or economic factors that contribute to the
ability or desire to participate in certain TLU activities or exercise particular rights. The Panel is
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of the opinion that assessing the effects of noise or air quality on traditional resources is not
sufficient and that the significance of the effects of noise and air quality on land use has to be
assessed as well. While the Panel is satisfied that the Project will likely not contribute in a
significant way to health issues related to air contaminants, the Panel believes that perceived bad
air quality and unpleasant odours could foster the avoidance of traditional use. The Panel also
believes that the perceived contamination of surface water and country foods are impediments to
TLU. The Panel believes that a thorough and proper assessment of project effects on TLU and
Aboriginal rights and interests is a complex undertaking, requiring an understanding and
integration of a host of issues, including effects on the availability or abundance of the resources
important to Aboriginal people as well as the combined effects of noise, odours, barriers to
access, perceived contamination of the resources, cultural factors, and other issues.
[1269] In light of the above issues, the Panel finds it is unable to rely on the significance
determinations provided by Shell for project and cumulative effects to Aboriginal TLU and
Aboriginal and treaty rights. The Panel has therefore completed its own assessment of
significance based on the information provided by Shell and the Aboriginal groups.
[1270] The Panel notes that according to Shell’s assessment, the Project will have a direct and
adverse effect on the four RFMAs immediately surrounding and adjacent to the Project. The total
amount of disturbance within the RFMAs in the application case ranges from 53 to 67 per cent
with the Project accounting for 22, 13, 6, and 19 per cent of the disturbance in RFMAs 1714,
1716, 2137, and 2172, respectively.
[1271] The Panel understands that Shell has or will enter into compensation agreements with the
RFMA holders to address impacts resulting from the Project and notes that this is necessary to
mitigate the potential effects to the RFMA holders. However, the Panel does not believe that
compensation agreements with the RFMA holders provide mitigation for project effects on the
TLU of other Aboriginal users of the trapline areas or potential effects on Aboriginal or treaty
rights. The Panel recognizes that the MCFN, FMFN, and FMMCA have signed agreements with
Shell which address their project-specific concerns, however not all of the Aboriginal groups that
participated in the hearing have signed such agreements with Shell.
[1272] The Panel notes that the amount of land that is or will be unavailable for TLU within the
various FMFN CSEs in Shell’s terrestrial RSA are significant, ranging from 19 to 55 per cent of
the areas as summarized in the table below. The Panel recognizes however that the Project
accounts for only 1 to 3 per cent of the loss.
Amount of Disturbance (per cent of CSEs)
Base Case
CSE
Application Case
Planned Development
Case
Moderate Use
Intense Use
Moderate Use
Intense
Use
Moderate
Use
Intense use
All Traditional Use
29
31
31
31
37
36
Big Game
Harvesting
19
30
19
32
21
39
Traditional Plant
Harvesting
31
47
34
47
42
55
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[1273] The Panel notes that when assessing the total amount of disturbance for the base case,
application case, and PDC and the potential of this disturbance to result in cumulative effects to
TLU activities, Shell compared the amount of disturbance to the entire traditional territories of
ACFN, FMFN, and MCFN. Using this comparison, Shell estimated the percentage of traditional
territory to be disturbed in the application case as approximately 6, 11, and 19 per cent of the
traditional territories for MCFN, ACFN, and FMFN, respectively. The amount of disturbance
predicted by Shell increases to 7, 13, and 22 per cent for MCFN, ACFN, and FMFN,
respectively, in the PDC.
[1274] The Panel notes that the traditional territories of MCFN, ACFN, and FMFN used by Shell
are very large and range in size from approximately 3.5 to 8.6 million ha (35 000 km2 to
86 000 km2). The Panel does not believe that comparing the amount of disturbance to such large
areas is an appropriate basis for determining significance as not all areas of the traditional
territory may be readily available to traditional land users. The Panel notes that if, instead of
using the entire traditional territory of the First Nation, Shell had used the amount of traditional
territory located within the terrestrial resources RSA as the basis for comparison, the amount of
disturbance would be significantly higher: 33, 35, and 31 per cent in the application case for
MCFN, ACFN, and FMFN, respectively and 39, 41, and 37 per cent in the PDC. These values
suggest a much higher potential for significant effects to TLU.
[1275] The Panel recognizes that the majority of the expected disturbance and loss of areas
available for TLU activities predicted by Shell exist in the base case and are associated with
projects and anthropogenic disturbances that already exist or have been previously approved as
well as natural disturbances which may already exist or may occur in the future. The Project will
make an additional but modest contribution to the expected level of disturbance.
[1276] The Panel understands that ultimately these disturbed areas will be reclaimed and become
available once again for TLU activities. However, for many projects, significant reclamation will
not occur until late in the life of the project and then it will still be years to decades before the
land is reclaimed and land use restored. The Panel therefore believes that the effects of the
Project and other oil sands projects will persist for at least several decades and this has
significant implications for the sustainability of TLU practices in the interim.
[1277] The Panel does not believe that the mitigation measures proposed by Shell will address
the loss of traditional use during this interim period.
[1278] The Panel also found that some effects, such as adverse effects on wetlands, may not be
reversible so there is a possibility that some project-related cumulative effects on traditional
resources and TLU will occur for an indefinite period of time.
[1279] The Panel did not agree with Shell’s assessment of the significance of project effects to
several terrestrial resources important for TLU. The Panel found significant adverse project
effects to wetlands, traditional plant potential areas, wetland-reliant species at risk, migratory
birds that are wetland-reliant or are species at risk, and biodiversity. The Panel also found that
the Project was likely to result in adverse, but not significant project effects to caribou, wood
bison, and moose.
[1280] The Panel finds that the Project will result in the loss of lands and some terrestrial
resources used for TLU activities and this will have an impact on some Aboriginal people that
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currently use the Project area. The Panel finds that the mitigation measures proposed by Shell are
not sufficient to fully mitigate these effects. The Panel believes however, that project effects
alone are unlikely to destroy or fundamentally alter the ability of the Aboriginal groups to
practice TLU activities or exercise their rights and, therefore, finds that project effects, while
adverse, are not likely to be significant.
[1281] The Panel notes that all of the Aboriginal groups, including those that withdrew their
objections to the Project, have expressed concern about the assessment and management of
cumulative effects in the oil sands region and the potential impact of these effects on their TLU,
Aboriginal and treaty rights, and culture.
[1282] The Panel did not agree with Shell’s assessment of the significance of cumulative effects
to several terrestrial resources important for TLU. The Panel found that the Project, in
combination with other existing, approved, and planned projects and other activities was likely to
result in significant adverse cumulative effects to wetlands, old-growth forests, traditional plant
potential, biodiversity, wetland-reliant species at risk and migratory birds, old-growth-reliant
species at risk and migratory birds, and caribou.
[1283] The Panel recognizes that there is considerable uncertainty associated with the amount of
disturbance predicted in the base case, application case, and PDC, the associated loss of wildlife,
plant, or other resources that will be lost as a result of this disturbance, and the significance of
these effects on TLU. For example, in the base case, not all of the projects have been built yet
and so not all of the predicted disturbance or loss has occurred. Similarly, for those projects that
have been constructed, not all of the disturbance will occur at once, particularly for the large
mining projects which experience a phased development over time. In the application case and
PDC, the predicted disturbance or loss includes losses resulting from natural disturbances (such
as forest fires) which may or may not occur and in any event will tend to recover more quickly
than other types of disturbance, such as oil-sands-related disturbances. The level of disturbance
or threshold at which the effects to resources will have a significant or permanent effect on TLU
is also uncertain.
[1284] Notwithstanding the uncertainties associated with assessing project and cumulative
effects, the Panel finds that the Project, in combination with other existing, approved, and
planned projects is likely to result in significant adverse cumulative effects to TLU activities,
including hunting and gathering. The Panel finds that significant areas already have been or will
be lost for the purposes of TLU as a result of existing, approved, and planned activities, as well
as natural disturbances and other resources important for the practice of Aboriginal TLU, rights,
and culture. Wetlands, old-growth forests, traditional plant potential, migratory birds, and
wildlife species such as caribou have been or will be subject to significant adverse cumulative
effects. The Panel recognizes that disturbed areas will eventually be reclaimed, but this will not
occur for many years, some types of habitat cannot be reclaimed, the landscape will be
significantly altered, and some species loss may be irreversible. The long-term and possibly
irreversible nature of these effects has significant implications for the sustainability of TEK,
TLU practices, Aboriginal and treaty rights, and culture.
[1285] The Panel acknowledges and understands the traditional and cultural importance of
caribou, wood bison, and moose to the Aboriginal groups. The Panel notes that the clearing of
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the Project area will reduce habitat availability for all three species and result in increased
difficulties accessing the species by TLU practitioners.
[1286] The Panel has already noted that caribou appear to be declining to extirpation in the RSA
due to the direct and indirect effects of industrial development. The Panel finds that Shell and the
Aboriginal groups provided conflicting information on how important the habitat in the LSA is
for caribou in the region. The Panel believes that while there is evidence that caribou still do use
the LSA to some limited extent, the numbers of caribou using the LSA are likely to be low, given
the population decline that has already been experienced and the amount of disturbance that has
already occurred. The Panel concluded that project effects to caribou were likely to be adverse,
but not significant based largely on the apparent already low use of the LSA. The Panel
recognizes however that historically caribou were much more abundant in the area and are no
longer available in quantities sufficient for traditional use. The Panel therefore concluded that
significant adverse cumulative effects to traditional use of caribou have already occurred and
these effects will continue in the application case and PDC. The Panel has included a number of
recommendations to the Governments of Alberta and Canada that relate to the management of
woodland caribou.
[1287] The Panel found that the Project is likely to affect some wood bison habitat used by the
Ronald Lake Herd due to construction of the Redclay Compensation Lake. The Panel notes
however, that habitat loss is not the greatest threat to wood bison; disease is a more significant
threat. The Panel also notes that Shell and the Aboriginal groups provided little information
about the abundance of wood bison in the area of the proposed Redclay Compensation Lake or
the importance of the habitat that will be affected by the compensation lake. The Panel,
therefore, concluded that both project and cumulative effects to wood bison were adverse, but
not likely to be significant. For similar reasons, the Panel finds that project and cumulative
effects to the Aboriginal groups’ ability to hunt wood bison as a result of the Project are adverse,
but not likely to be significant. The Panel has included a number of recommendations to Canada
regarding completion of the federal recovery strategy and the identification of critical habitat for
wood bison.
[1288] The Panel notes that there is an absence of reliable population data for moose in the LSA
and RSA used by Shell. However, the Panel believes that there is some evidence to suggest a
decline in moose populations from the PIC to the base case. The Panel also believes that changes
in moose abundance and perceived changes in the quality of meat have already altered the
traditional use of moose in the LSA. The Panel recognizes that post-closure, reclamation of the
LSA may increase moose habitat; however in the interim, the Panel believes that Shell has not
provided evidence to support its view that the adjacent RSA contains sufficient moose habitat to
sustain moose populations and that there is no need to mitigate the loss of moose habitat within
the LSA. The Panel also notes that Shell predicted moose populations in the RSA to decline
further in the application case and PDC and as such, Aboriginal peoples’ relationship with these
species may be further affected.
[1289] In the absence of reliable population data for moose, the Panel concluded that Project and
cumulative effects to moose were adverse, but not likely to be significant. For similar reasons,
the Panel concluded that Project and cumulative effects to the Aboriginal groups’ ability to hunt
moose are adverse, but not likely to be significant. Due to the uncertainties associated with the
size and trend of current moose populations and the importance of moose to the Aboriginal
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groups, the Panel has included a recommendation that the Government of Alberta develop and
implement a program to monitor the health and long-term sustainability of moose populations in
the Lower Athabasca region, either as part of the biodiversity management framework under
LARP or as part of other monitoring initiatives currently being developed and implemented.
Navigation
[1290] The Panel notes that several of the Aboriginal groups raised concerns about low water
levels in the Athabasca River and the PAD and the impact these low levels have on navigation,
TLU, and the exercise of Aboriginal and treaty rights. The Panel acknowledges that changes in
navigation may be occurring but believes the reasons for the observed changes are not clearly
understood and are likely the result of a combination of factors, including but not limited to a
discontinuation of dredging, the construction and operation of the Bennett dam, variation in
water flows due to natural wet-dry cycles or climate change, and water withdrawals by oil sands
operations and other upstream water users.
[1291] Based on Shell’s commitment to complying with existing flow allocation restrictions
outlined in the current Water Management Framework for the Lower Athabasca River Phase 1
and with future Phase 2 conditions and the negligible effects from Project related water
withdrawals on regional water flows, the Panel concluded that the Project was unlikely to result
in significant adverse Project or cumulative effects to water levels or navigation in the Athabasca
River or PAD. The Panel, therefore, also concludes that the Project is unlikely to result in
adverse Project or cumulative effects to Aboriginal traditional use or Aboriginal or treaty rights
resulting from adverse effects to navigation.
[1292] Although the Panel has determined that the Project is unlikely to result in any significant
adverse effects to water levels or navigation in the Athabasca River or PAD, the Panel has
included several recommendations in its report that address concerns raised by the Aboriginal
groups related to water management and navigation, including that:
•
the Governments of Canada and Alberta consider the precautionary cut-off flow approach to
address impacts of water withdrawals during extreme low-flow conditions, and potential
impacts on navigation.
•
DFO, ESRD, the oil sands industry, and all other involved stakeholders dedicate the
necessary resources to ensure that Phase 2 of the Water Management Framework for the
Lower Athabasca River is completed and implemented in a comprehensive manner by
January 2016 as recommended in the P2FC report;
[1293] The Panel also recommends that EC in collaboration with ESRD, conduct joint research,
in collaboration with interested Aboriginal groups, and report on the causes of the perceived
drying of the Athabasca oil sands region and the PAD, and that Aboriginal concerns on this issue
be considered in any Phase 2 water allocations.
Effects on Culture
[1294] The Panel notes that Shell did not provide an assessment of the potential cultural effects
of the Project to each First Nation or Aboriginal group as requested by the Panel in its January
30, 2012, SIR to Shell. The Panel also notes that Shell did not conduct individual interviews for
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its cultural assessment and there was no significant input or engagement by the Aboriginal
groups to validate the approach or results of the assessment.
[1295] While Shell stated that the cultural assessment covers potentially impacted Aboriginal
groups whose traditional territories overlap the Project area, including ACFN, MCFN, FMFN,
FMMFN #468, and Métis Locals 63, 125, and 1935, the majority of information Shell relied on
for the assessment appears to have been largely sourced from ACFN, MCFN, FMFN, and the
RFMA holders. It is therefore unclear to the Panel to what extent Shell made use of or
considered information from the other Aboriginal groups.
[1296] The Panel notes that Shell focussed its cultural assessment on an assessment of project
effects and did not assess cumulative impacts to Aboriginal culture over time. In contrast, the
cultural assessment information provided by some of the Aboriginal groups (most notably ACFN
and FMFN) tended to focus less on the specific impacts of the Project and more on the
cumulative impacts to and changes in culture over time.
[1297] The Panel agrees with Shell that assessing the effects of the Project on the tangible and
intangible elements of culture is a complex exercise and many different approaches are possible.
While Shell’s cultural assessment provided only a broad assessment of these cultural effects and
was not specific to any First Nation or Aboriginal group, it was still useful to the Panel.
However, in order to more fully understand the project and cumulative effects on the culture of
individual First Nation or Aboriginal groups, the Panel made use of the information provided by
those First Nation or Aboriginal groups.
[1298] The Panel notes that Shell found the effects of the Project on the tangible and intangible
elements of culture to range from negligible to moderate. Shell’s assessment relied in large part
on the linkage analysis and discipline-specific results contained in the EIA which found that the
Project was unlikely to have significant adverse effects on resources used by Aboriginal groups,
including on lands available for TLU activities. Because Shell did not expect the Project to have
significant adverse effects on the biophysical resources important to Aboriginal groups at a
regional scale or within the TLU-RSAs, Shell concluded that the Project was also unlikely to
have significant adverse effects on Aboriginal culture.
[1299] As discussed above, the Panel does not agree with some of Shell’s significance
determinations and believes that the Project is likely to result in adverse, but not significant
project effects on TLU. The Panel agrees, however, with Shell’s assertion that the effects of the
Project alone are unlikely to have a significant adverse effect on Aboriginal culture.
[1300] Although Shell did not provide an assessment of the cumulative impacts to Aboriginal
culture over time, Shell acknowledged that the effects of development and other activities within
the RMWB have had a significant effect on Aboriginal culture over time, with some effects
being positive and others negative, and that these effects are likely to increase in the future.
[1301] The Panel has determined that the Project, in combination with other existing, approved,
and planned projects, as well as other activities occurring in the RMWB is likely to result in
significant adverse cumulative effects on TLU. Because Aboriginal culture is closely tied to TLU
activities and the exercise of Aboriginal and treaty rights, the Panel therefore concludes that the
Project, in combination with other existing and planned development and activities, is also likely
to result in significant adverse cumulative effects on Aboriginal culture. The increased loss of
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lands and resources available for the practice of TLU activities has significant implications for
the sustainability of TLU and cultural practices. Some of the cumulative socioeconomic effects
associated with regional development, such as increased access to the wage economy, the
availability and high cost of housing, and significant increases in the regional population, will
further contribute to the cultural changes within the Aboriginal groups in the RMWB.
Conclusions
[1302] The Panel acknowledges that not all Aboriginal groups will experience Project or
cumulative effects to TLU, Aboriginal and treaty rights and culture in the same manner, or to the
same degree. The significance of effects will depend in part on how the members of that group
use the immediate Project area and the broader region surrounding the Project. The potential for
Project and cumulative effects to adversely impact the TLU, Aboriginal and treaty rights, and
culture of each Aboriginal group is discussed in the sections that follow.
[1303] The Panel believes that completing CEAs is a very challenging and complex exercise,
particularly for effects to Aboriginal TLU, rights, and culture. The number and variety of
projects and activities occurring in the oil sands region, the multiplicity of traditional uses, rights,
and cultures associated with the different Aboriginal groups, and a lack of consensus on the
appropriate thresholds to be used for determining when significant adverse effects to Aboriginal
TLU, rights, and culture might be occurring make it difficult for the proponents of individual
projects, such as Shell, to conduct these assessments. It also makes it very challenging for the
Panel to assess the adequacy of the CEA and the significance of the cumulative effects predicted.
The Panel agrees with Shell and the Aboriginal groups that completing CEAs at a regional,
rather than on a project-by-project basis, would be more effective and would reduce the potential
for individual project CEAs to produce inconsistent results.
[1304] It is also apparent to the Panel that the mitigations being proposed by individual project
proponents are not effective at mitigating the adverse cumulative effects to TLU. While the
stated intent of LARP is to take more of a cumulative effects approach to managing
environmental effects in the Lower Athabasca Region, the Panel notes that LARP does not
specifically address TLU issues but instead provides for continued consultation and engagement
with Aboriginal peoples to help inform land and natural resource planning in the region. Several
of the Aboriginal groups expressed concern that the LARP does not address their concerns and
does nothing to ensure ongoing traditional use of the land. The absence of a management
framework and associated thresholds for TLU makes it very difficult for both industry and panels
such as this one to evaluate the impact of individual projects on TLU. The Panel believes that to
be better able to accomplish this and inform land use planning, a TLU management framework
should be developed for the Lower Athabasca Region. The Panel recommends that Alberta
develop and implement a TLU management framework for the Lower Athabasca region as a
component of the LARP. The Panel recommends that the Government of Alberta develop this
framework in conjunction with the Government of Canada, other stakeholders, and all
Aboriginal people affected by industrial development that practice their rights in the oil sands
region. The Panel recommends that this framework be maintained and adapted over time to
ensure the protection of Aboriginal land use and treaty rights in the oil sands region.
[1305] At the outset of the hearing, the Panel determined that it did not have the jurisdiction to
rule on the adequacy of Crown consultation, and in any case that it would be premature for the
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Panel to make that decision as there will be further opportunities following the issuance of the
Panel’s report and before Crown decisions are made or authorizations issued for the Project. The
Panel notes that both Alberta and Canada stated in the NQCL process that the consultation
process was not yet complete and that there would be additional opportunities for consultation
after the Panel’s report had been completed and before Crown decisions or regulatory
authorizations were issued for the Project. The Panel recommends to the Governments of Alberta
and Canada that before other provincial and federal approvals are issued, Alberta and Canada
consider the adequacy of the Crown’s consultation with each of the Aboriginal groups in light of
the issues identified in this report to determine whether additional consultation is necessary to
address these issues, including likely significant adverse Project and cumulative effects to a
number of resources important to Aboriginal people and likely significant adverse cumulative
effects to Aboriginal TLU, rights and culture.
Athabasca Chipewyan First Nation
Evidence
Participation and Requested Disposition
[1306] ACFN’s participation in the review process and hearing is discussed in the Participant
Involvement in the Review Process section.
[1307] ACFN stated that it opposed the Project because it believes that the Project will cause
significant adverse effects on ACFN’s traditional knowledge and land-use activities, Aboriginal
and treaty rights, and culture. ACFN also argued that the EIA has significant gaps, the mitigation
proposed by Shell does not address the concerns ACFN raised, and consultation by both Shell
and the Crown has been inadequate. It said that the Project is not in the public interest.
[1308] ACFN asked that the Panel not approve the Project and that a five-year moratorium be
imposed on further oil sands development while proper planning is completed and put in place.
ACFN stated that this planning must recognize and respect ACFN’s Aboriginal and treaty rights
and that ACFN wants to participate in the planning.
[1309] ACFN asked that if the Project were approved, the Panel recommend to Alberta that a
traditional resource use management plan (TRUMP) be completed before any approvals are
issued for this Project or other industrial developments. It asked that the TRUMP include binding
thresholds and measures that will allow regulators to condition permits and authorizations in a
manner that protects Aboriginal and treaty rights.
[1310] ACFN also asked the Panel to call for an independent commission of experts to be
established with the purpose of evaluating consultation and accommodation of impacts in the oil
sands region.
[1311] Appendix 8 provides a list of ACFN’s key recommendations.
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Rights Being Asserted
[1312] ACFN asserted that it is a successor to an Aboriginal group that entered into Treaty 8 and
that it has the right to hunt, trap, fish, and gather on all unoccupied Crown lands and other lands
for which they have right of access.
[1313] ACFN also asserted that its rights include incidental rights required to meaningfully
exercise its treaty rights, including
•
routes of access and transportation;
•
sufficient water quality and quantity;
•
sufficient quality and quantity of resources in preferred harvesting areas;
•
cultural and spiritual relationships with the land;
•
abundant berry crops in preferred harvesting areas;
•
traditional medicines in preferred harvesting areas;
•
the experience of remoteness and solitude on the land;
•
construction of shelters on the land to facilitate hunting, trapping, gathering, and/or fishing;
•
use of timber to live on the land while hunting, trapping, gathering, and/or fishing (e.g. to
build shelters and fires);
•
the right to instruct younger generations on the land;
•
access to safe lands within which to practise rights;
•
the right to feel safe and secure in the conduct of such practices and activities;
•
lands and resources accessible within the constraints of time and cost;
•
sociocultural institutions for sharing and reciprocity; and
•
spiritual sites and associated practices.
[1314] ACFN stated that as of August 2012, it had approximately 1049 members, about one fifth
of them residing on reserve lands or Crown lands in the vicinity of Fort Chipewyan. The
majority of other ACFN members reside on other First Nation reserves or in Fort McMurray,
Edmonton, Fort McKay, and Fort Smith. ACFN noted that its population had increased by
almost 50 per cent from 2000 to 2012, representing an annual growth rate of approximately 4.2
per cent.
[1315] ACFN stated that while Fort Chipewyan is the economic and administrative centre for
ACFN, its cultural heartlands, where it exercises its treaty and Aboriginal rights, lie farther
south. ACFN explained that it has eight reserve areas in the Athabasca Delta, on the south shore
of Lake Athabasca in the vicinity of Fort Chipewyan, upstream along the Athabasca River at
Point Brule and at Poplar Point (approximately 27 km northwest of the Project). ACFN also
stated that it is currently seeking to set up a new community on the south shore of Lake
Athabasca at Old Fort Point.
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Adequacy of Consultation by Shell
[1316] Shell stated that it had a 15-year history of consulting and working with ACFN and
believed that it had a good understanding of the issues and concerns ACFN raised about the
Project. Shell acknowledged that its relationship with ACFN had become more adversarial
recently. Shell and ACFN agreed, however, that Shell had consulted and negotiated in good faith
but could not agree on one aspect of the measures necessary to mitigate the effects of the Project.
ACFN said that the details of the negotiations were confidential.
[1317] ACFN expressed concern about the Aboriginal consultation plan developed by Shell and
approved by AENV. ACFN stated that the consultation plan does not address how ACFN’s input
will be substantially considered and addressed on TLU, TEK, socioeconomic issues, and
potential direct, indirect, and cumulative impacts on ACFN’s ability to meaningfully exercise its
Treaty 8 rights, now and in the future.
[1318] Shell stated that while it had asked ACFN how it would like to be consulted regarding the
Project, Shell could not confirm whether it had consulted with ACFN specifically about the
consultation plan. Shell noted that ESRD had approved the consultation plan and confirmed that
it had been provided to ACFN.
[1319] ACFN noted that the consultation plan states: “by assessing the strength of claim, Shell is
able to engage more appropriately with those groups that may be directly impacted by the
project.” Shell stated that it had not conducted a formal assessment of the strength of claim of
ACFN, but based on Shell’s 15-year history of consulting with ACFN, Shell believed that it
understood ACFN’s concerns and acknowledged that there was the potential for the Project to
affect ACFN’s Aboriginal and treaty rights.
[1320] ACFN submitted that the Crown, and not Shell, is a signatory to Treaty 8 and no one
requires Shell to substantially address ACFN’s concerns and rights. ACFN expressed concern
that neither Shell nor the Crown have informed themselves of what is required to sustain
ACFN’s Aboriginal and treaty rights. ACFN argued that Shell has moved beyond simply being a
procedural delegate by determining what consultation is required and what mitigation is
necessary, and that this is not appropriate.
[1321] ACFN was concerned that there was more focus in Shell’s bimonthly consultation reports
that it submitted to ESRD on the tracking of administrative details associated with the
consultation process than on tracking substantive issues such as ACFN concerns and how they
had been addressed or mitigated. ACFN stated that it believes that the consultation reports are
misleading and do not provide ESRD with the information that it requires to assess the adequacy
of consultation. ACFN stated that the consultation reports contain items that are not related to the
Project and PRM, do not always accurately capture the issues, and do not give an accurate
impression of what has occurred, why it has occurred, and whether or not issues are progressing
or resolved. ACFN argued that the consultation logs were not meeting their intended purpose.
ACFN also argued that the substantial length of the record and the consultation reports do not
mean that meaningful consultation has occurred.
[1322] Shell stated that the consultation information is summarized to meet ESRD’s
requirements and that if ESRD requests additional information, Shell provides it. Shell said that
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ESRD had requested additional information on items in the consultation reports. Shell also noted
that the consultation reports are provided to the First Nations for review and comment.
[1323] Shell stated that, as a delegate of the Crown with respect to the procedural aspects of
consultation, it provides these consultation reports, recognizing that they are just one source of
information for any assessment of the adequacy of consultation and the potential effects of the
Project on Aboriginal and treaty rights.
[1324] ACFN expressed concern that there was no way for ACFN to know what Shell and
ESRD discussed with respect to consultation respecting ACFN. Shell responded that the issues
discussed with AENV would be summarized in the detailed meeting notes that it shared with the
Aboriginal groups.
[1325] ACFN expressed concern about the extent to which Shell considered and incorporated
information provided by ACFN into the assessment and design of the Project. ACFN stated that
it had provided thousands of pages of technical review documents and traditional use
information to Shell, but that this information has not resulted in any changes to Shell’s plans.
ACFN stated that its core concerns remain and that Shell had not substantially addressed them.
[1326] ACFN stated that its IKLU Report shows significant use in the Project area and states that
there will be a significant adverse effect on Aboriginal rights. ACFN expressed concern that
despite this report, Shell did not change its assessment and did not incorporate ACFN’s views.
[1327] Shell stated that some of the areas listed in the IKLU Report as being within the Project
footprint or within 250 m of it were actually outside of those areas.
[1328] Shell provided some examples of where it had modified its plans for the Project based on
ACFN and other Aboriginal stakeholders’ input. Shell stated that the original plans for the
Project involved the temporary diversion of the Muskeg River through a pipeline. In response to
concerns about the pipeline diversion from Aboriginal groups, Shell developed and submitted the
MRDA mine plan that uses an open channel diversion of the Muskeg River. Shell stated that it
did this to address Aboriginal concerns related to the navigability of the river, maintaining the
spirit of the river, and protecting water quality in the downstream reaches of the river. Shell
stated that it used ACFN and other Aboriginal groups’ input to inform reclamation planning
activities on its existing mines and the input is already being incorporated into reclamation and
closure planning activities for the Project. Shell stated that it had made a commitment that ACFN
members would be involved in the collection of seeds for traditional plants and the planting of
seeds during reclamation. Shell stated that it also used and will use ACFN and other Aboriginal
groups’ input for determining planting prescriptions. Shell stated that it used ACFN input in the
development of the NNLP, including the determination of species distribution and species
preferences. Shell also stated that it augmented the NNLP to address human health concerns
raised by ACFN and others related to the potential for methyl mercury to occur in the Redclay
Compensation Lake.
[1329] Shell stated that it has considered the information provided by ACFN but that many of
the issues raised are related to differences of opinion over assessment methodology and
conclusions. Shell acknowledged that it and ACFN have differences of opinion with respect to
these matters. Shell stated that although some individuals and activities will be affected by the
Project, it considered the Project and its associated effects on a broader scale.
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[1330] ACFN stated that it was not consulted about plans to change from a pipeline to an open
channel diversion of the Muskeg River and it does not support that option. ACFN stated that it
has significant unresolved concerns about the diversion of the mainstem of the Muskeg River
and does not support mining through the river. ACFN stated that it believes that the Muskeg
River should be protected.
[1331] Shell acknowledged that ACFN would prefer that Shell not disturb the river, but stated
that the MRDA mine plan was an attempt to address ACFN and other Aboriginal groups’
concerns in a substantive manner.
[1332] Shell stated that it had provided more than 300 responses to concerns raised by ACFN
regarding how the Project has been designed. Shell argued that the fact that an interested party
does not agree with the outcome does not mean the proponent has not attempted to address its
concerns.
[1333] ACFN expressed concern about the lack of consultation and engagement by Shell on
Shell’s cultural assessment. ACFN noted that Shell began work on the assessment in June 2011
and submitted it to the Panel in May 2012. ACFN stated that it attempted to become engaged in
the assessment of its culture, but Shell completed its assessment without ACFN input, instead
using reports previously provided by the various First Nations.
Adequacy of Consultation by the Crown
[1334] ACFN stated that although the Crown secured the right to take up lands from time to time
under Treaty 8, this right is subject to the Crown’s duty to consult and accommodate ACFN's
interests before reducing the area over which ACFN members may continue to pursue their
hunting, trapping, and fishing rights. ACFN stated that this duty to consult and accommodate
extends to ACFN’s concerns about the cumulative effects of development on its traditional lands
and the meaningful exercise of its treaty rights.
[1335] ACFN stated that the Crown has not addressed ACFN’s concern that cumulative impacts
of development throughout its traditional lands have threatened, or are threatening, ACFN’s core
entitlement to exercise its treaty rights on its traditional lands in perpetuity. ACFN said that
failure to address this issue constitutes a breach of the Crown’s consultation duties, and any
approval in the face of such a breach is unlawful and invalid.
[1336] ACFN stated that it has made a concerted, sustained effort to alert the Crowns as well as
the proponent, of the adverse impacts this Project would have on its Treaty 8 rights, both alone
and in context of historic and ongoing encroachment on ACFN’s treaty rights.
[1337] ACFN believed that the Crown has failed to engage in meaningful, project-specific
consultation. ACFN said that it has a long-standing concern about the manner in which Shell
represents its consultation activities with ACFN to the Government of Alberta. ACFN stated that
it is also concerned that Alberta has been willing to adopt Shell’s assertions without talking to
ACFN even though it has alerted Alberta to omissions and misrepresentations in Shell’s
correspondence and consultation logs several times.
[1338] ACFN stated that there has been no follow-up by Alberta to discuss concerns identified in
the consultation reports. Alberta has met with Shell quarterly to discuss the Project but has been
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unwilling to meet with ACFN since 2009. ACFN stated that it is not clear what Alberta does
with the information it receives and Alberta did not participate in the hearing to speak to these
issues. ACFN stated that federal witnesses could also not explain how Canada considered treaty
rights in the assessment of project effects.
[1339] ACFN expressed concern that both Alberta and Canada have largely delegated
consultation to industry. ACFN stated that Alberta is absent from consultation and Canada won’t
discuss substantive issues or rights. It said that neither level of government would discuss treaty
infringement.
[1340] ACFN stated that it wrote to Indian and Northern Affairs Canada (now Aboriginal
Affairs and Northern Development Canada (AANDC)) in November 2007 indicating that a CEA
was required for its reserve lands and communities, particularly with respect to water levels in
the Athabasca River. ACFN noted that no one from AANDC was at the hearing to confirm
whether a response had been provided to ACFN.
[1341] ACFN stated that approval of the Project may breach ACFN’s constitutional rights to
consultation and accommodation with respect to its concerns. ACFN added that to date, the
Crown has not consulted adequately, or at all, regarding the concerns described above.
[1342] ACFN stated that since the signing of Treaty 8, ACFN’s traditional lands have shrunk
and continue to shrink because of the development that is occurring, not only by the oil and gas
industry, but also with municipalities, farmers, and other users. ACFN stated that all of their land
is being taken up and there is a need for both levels of government to meet with ACFN to make
adequate plans to protect the livelihoods of ACFN members. ACFN stated that despite many
attempts by ACFN to engage Alberta and Canada, both levels of government refuse to consult
with ACFN.
[1343] ACFN stated that it wrote to Alberta and Canada in February 2010 and on other
occasions to raise concerns about the impact of oil sands development on ACFN’s traditional
lands and Aboriginal and treaty rights, the inadequate consultation related to these impacts, and
what ACFN perceived to be a “downward spiral in relations” between ACFN and Alberta and
Canada. ACFN stated in its February 2010 letter that in the absence of effective consultation,
ACFN had been moving to protect its rights.
[1344] ACFN stated that it is frustrated because the recommendations of previous panels have
been implemented only very slowly, or not at all, and ACFN does not believe that there is any
protection for the environment or their Aboriginal and treaty rights.
[1345] ACFN stated that while there has been some discussion between ACFN and Alberta
about a baseline community health study for Fort Chipewyan, progress has been very slow and
frustrating for ACFN.
[1346] ACFN stated that it has also been frustrated in its attempts to engage both levels of
government on positive solutions that could lead to reconciliation between ACFN and the Crown
in respect of ACFN’s goal of sustaining treaty rights in the face of industrial development.
ACFN believes there are systemic flaws with consultation in the oil sands region.
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[1347] ACFN stated that one systemic flaw is that the information and methodologies needed to
properly assess impacts to treaty rights and culture are absent from the process. ACFN submitted
that the assessments provided by proponents do not take into account the thresholds necessary to
sustain ACFN’s rights. It said that filling this gap is critical to ensuring that impacts to rights can
be accurately characterized and to develop mitigation and accommodation measures that truly
address those impacts. ACFN stated that it has proposed a solution to address this information
gap, the development of a TRUMP. ACFN believes that a second systemic flaw is a lack of will
by Shell and both levels of government to meaningfully address ACFN’s concerns. ACFN stated
that a third systemic flaw is that concerns expressed by ACFN in the context of project-specific
consultations are often deferred to regional planning and cumulative effects processes and
frameworks. However, ACFN’s experience with respect to the consultation associated with these
regional processes and plans is that they are often flawed and fall short of protecting treaty
rights.
[1348] ACFN stated that it was not adequately consulted on the LARP as Alberta came to the
community only once and the representatives that came were two junior staff members. ACFN
submitted that the consultation by Alberta during the LARP process was “largely meaningless.”
ACFN stated that despite considerable time and effort invested by ACFN to prepare and provide
input during the LARP process, it is not clear to ACFN how Alberta considered or incorporated
its views into the LARP. ACFN wrote to Alberta on several occasions during the development of
the LARP to express its concerns about the process being used for consultation and to stress the
importance of ensuring that ACFN’s constitutional and treaty rights were recognized and
respected in the final plan. ACFN stated that it was not satisfied with the responses or level of
engagement provided by Alberta in response to its many letters. ACFN stated that the LARP is
not a framework to protect treaty rights, nor was it meant to be, and that the LARP does not
adequately address ACFN interests and needs.
[1349] ACFN stated that it had participated in several other Crown-led processes, but there has
been little incorporation of ACFN’s concerns and ideas into these initiatives. ACFN stated that
there is little incentive for ACFN to participate in regional processes when its input is not
included. ACFN cited the example of its participation in the CEMA process considering water
management in the Athabasca River. ACFN said that it identified serious deficiencies in the
process and eventually needed to take the initiative to develop its own threshold for water flows
in the Athabasca River, based on navigability, ABF.
[1350] ACFN stated that it eventually withdrew from CEMA because the CEMA groups were
not able to resolve these issues to properly manage development in the region, and ACFN was
upset that the things it had hoped to accomplish could not be accomplished through CEMA.
ACFN submitted that where activities affect treaty rights, the provincial or federal government
needs to take a leading role; industry cannot be left to manage these issues. ACFN acknowledged
that since it left CEMA, CEMA had been reorganized and ACFN had heard some good things
about it. ACFN suggested that it might consider rejoining CEMA in the future.
[1351] ACFN stated that capacity is a concern for ACFN and questioned the efficiency and
effectiveness of continuing to do site-specific traditional use studies for each project. ACFN
stated that it is frustrating for its elders as they are constantly being asked for the same
information for each project. ACFN stated that implementing its agreements with the developers
is also administratively exhausting as it has to respond to many applications, often with
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unreasonable timelines, leading to a feeling of being overwhelmed at times. ACFN stated that it
had recently completed a review of its internal capacity that showed that it would need 37.5 fulltime people to keep up with the growing regulatory burden, although it has only seven people.
[1352] Shell acknowledged the demands it places on ACFN’s resources and noted that it had
increased funding to the ACFN IRC to $160 000 in 2011.
[1353] ACFN believes that developing and implementing a TRUMP is necessary to ensure
protection of and to provide the information necessary to effectively assess cumulative impacts
to ACFN’s Aboriginal and treaty rights. ACFN stated that it has tried to discuss comanagement
of its traditional territories with Alberta on several occasions, but currently the province is
unwilling to discuss it. ACFN reported that during the LARP process, it provided advice to
Alberta on the possible role and benefits of a comanagement approach, which initially resulted in
some interest from Alberta and Canada and a request for further information. ACFN prepared
and submitted to the Land Use Secretariat responsible for the LARP a more detailed discussion
paper on comanagement concepts and how a co-management model might work. ACFN reported
that both Alberta and Canada continued to show interest in the proposal after receiving the
discussion paper. However, ACFN stated that it was very discouraging that late in the LARP
process, Alberta withdrew suddenly from further discussions about TRUMP with no explanation
and finalized the LARP without incorporating a comanagement element.
[1354] ACFN stated that it is not against industrial development, but favours sustainability and
slow growth rather than growth at a pace that is uncontrollable. ACFN stated that the current
pace of growth is too fast and there has not been proper planning for this growth, resulting in
several adverse impacts on the communities in the oil sands region. ACFN stated that the
consultation and regulatory processes governing oil sands development are “broken” and failing
ACFN.
[1355] ACFN expressed concern that the federal Crown considers the hearing to be part of the
consultation process. ACFN said that it believes that both levels of government should have
information on potential impacts on rights earlier in the process. ACFN noted that Alberta did
not participate in this hearing, but will be making approval decisions resulting from this
proceeding.
[1356] During final argument, Canada disagreed with ACFN’s assertion that it had not
considered the impact of the Project on treaty rights. Canada stated that the evidence filed by
ACFN includes a significant amount of correspondence between ACFN and the federal
government, including DFO. Canada argued that the correspondence, Canada’s submissions, and
the information provided by DFO show that DFO did consider the information provided by
ACFN. Canada also noted that TC’s submission makes specific reference to impacts on
Aboriginal rights.
[1357] Canada argued that many of ACFN and other Aboriginal groups’ recommendations are
very broad and in some cases only remotely related to project-specific effects. Canada stated that
the regulatory process is well suited to address issues that are site- or project-specific but is not
intended or designed to address larger issues, such as the overall impact of development on a
regional basis on the rights exercised throughout the region. Canada also noted that the
Agreement requires the Panel to make findings of fact and provide recommendations with
respect to the effects of the Project on Aboriginal and treaty rights asserted by the participants
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and that the Panel’s findings and recommendations may assist the Crown in its consultation
process.
Effects on Traditional Land Use, Rights, and Culture
EIA Methodology
[1358] ACFN believed that Shell confused trappers’ rights with Aboriginal rights and that this
confusion influenced Shell’s assessment of project effects on ACFN’s TLU and rights. ACFN
stated that this confusion, in combination with a lack of appropriate data, contributed to an
underestimation of project effects on ACFN and resulted in inappropriate mitigation measures.
[1359] ACFN stated that the trappers are not, in general, considered as holders of any specific
knowledge about the TLU of ACFN. ACFN also stated that the resources gathered on a trapline
or elsewhere by land users are shared within the community and that this is part of ACFN
culture.
[1360] ACFN stated that it provided reports to Shell describing its land use in an LSA and RSA
that it defined. ACFN defined its LSA as an area within 5 km of the Project footprint, including
the mine site and associated works, within which direct interactions between the Project and
ACFN values may exist. ACFN stated that its RSA includes a broader area within which both
direct and indirect effects of the Project may be anticipated, such as noise, dust, odours, access
management issues, traffic, effects on water, and other effects. The RSA defined by ACFN
included the PAD.
[1361] ACFN disagreed with Shell that an assessment of the significance of effects on resources
important to traditional users and on access to such resources could be used as a proxy for
assessing the significance of the effects on TLU. ACFN noted that the biophysical and
socioeconomic receptors and indicators included in the EIA are based upon principles of
biodiversity and ecosystem integrity and not on parameters of Aboriginal use or values.
Similarly, the socioeconomic assessment in the EIA is based upon an assessment of mainstream
economic activities and not on the First Nation’s traditional and cultural social economy. ACFN
stated that an assessment of these biophysical and socioeconomic receptors and indicators could
not capture the impacts of the Project on ACFN’s Aboriginal and treaty rights. ACFN believed
that an impact assessment on ACFN should be based on a methodology that specifically assesses
its rights.
[1362] ACFN stated that because of these methodological issues, Shell’s EIA does not
accurately depict the direct adverse and cumulative effects of the Project on ACFN’s TLU,
treaty, and Aboriginal rights. ACFN said that Shell’s approach was flawed in assuming that that
there would be no significant adverse effects on TLU if there were no significant adverse effects
on the individual resources used by ACFN members or if these resources were available
elsewhere within ACFN’s traditional territory. ACFN also stated that Shell generally found
project effects to be negligible because Shell assumes that they are reversible. ACFN believed
that impacts to wetlands and other habitats are not reversible.
[1363] ACFN expressed concern that the information it provided to Shell did not change the
results of Shell’s assessment or its conclusions. ACFN stated that Shell has had ACFN’s IKLU
Report since January 2011 and that the report indicates the Project will result in significant
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adverse effects on ACFN’s TLU and Aboriginal and treaty rights. ACFN stated that because of
the approach and methodology employed by Shell, it was hard to imagine what kind of other
information ACFN could have provided that would have changed Shell’s assessment.
[1364] ACFN said that Shell did not rigorously measure the impacts on First Nations’ traditional
resources in any part of its assessment. ACFN also submitted that the regulatory process does not
fund ACFN’s ability to gather the kind of specific information that would contribute to an
assessment of such impacts and that AENV had declined to include in the EIA TOR several
measures that would have contributed to the assessment of potential impacts on ACFN section
35 rights. ACFN stated that in the absence of specific data, measures, thresholds, and criteria to
assess impacts on Aboriginal rights, it is difficult to understand Shell's assertion that it has
assessed such impacts.
[1365] ACFN submitted that Shell placed an inappropriate reliance on far future and uncertain
reclamation activities to mitigate project effects on the environment and TLU. With respect to
traditional knowledge and land use, ACFN considered the loss of an area for more than one
generation to be permanent.
[1366] ACFN argued that the Panel’s TOR requires consideration of mitigation measures that
are technically and economically feasible but that many of Shell’s mitigation measures rely on
adaptive management which is often no more than a general commitment to do something if it
becomes necessary. ACFN said that the issue of adaptive management has been addressed by the
courts that have found that vague hopes for a future technology do not constitute mitigation.
ACFN argued that assertion of unidentified mitigation measures as part of adaptive management
is not a substitute for a commitment to specific mitigation measures.
Traditional Land Use
[1367] ACFN’s updated IKLU Report provided baseline information regarding ACFN’s
traditional knowledge and use in the area of Shell’s two proposed projects. The report was based
on more than 100 interviews with 50 ACFN elders and land users and information compiled
from previous studies.
[1368] ACFN stated that the Project is located within the area identified by ACFN as the Fort
McKay proximate zone, an area that includes lands and waters relied upon by ACFN members
living in and around Fort McMurray and Fort McKay. ACFN stated that the area was relatively
undisturbed until the intensification of oil sands activities in the late 1990s.
[1369] ACFN indicated that its members have lived in the Project area from preindustrial time.
ACFN indicated that the Aboriginals who lived in the area carried on traditional activities around
Kearl Lake such as hunting, gathering berries, and drying meat. In particular, ACFN noted that
its members have relied on the resources of the Kearl Lake area, such as moose, rabbit, and
grouse. According to ACFN, in more recent times the resources gathered from trapline areas in
the Kearl Lake area have been commonly shared with elders and other members of the
community, and therefore, benefit more people than just the cabin or trapline holders.
[1370] ACFN reported that RFMA 1714 is the closest ACFN area (trapline or reserve)
accessible by road from Fort McMurray and Fort McKay and that this RFMA has historically
been a focal area for ACFN use. ACFN said that although this trapline is in an area that has
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already been impacted by industrial development, it is important to ACFN use because it is
readily accessible in terms of the distance from settlements and the fact that no specialized
equipment (such as boats and snowmobiles) is required to access much of it.
[1371] ACFN members provided evidence showing historic trapping by members in the Kearl
Lake area. They provided evidence that ACFN members often receive their traplines through
kinship relations. According to ACFN, the traplines are to some extent “shared land” and ACFN
members, other than the trapline holder, may gather resources on the trapline.
[1372] ACFN stated that a variety of uses shown in the IKLU Report will disappear if the Project
is approved. ACFN reported 68 site-specific values inside or within 250 m of the Project
footprint including 33 subsistence sites, 14 habitation sites, 3 cultural or spiritual sites, 6
transportation sites, and 19 environmental features. It identified 122 specific-use values within
the LSA defined by ACFN.
[1373] ACFN said that with respect to traditional knowledge and land use, place matters;
specific locations and resources are important and traditional resource users cannot just go
somewhere else. ACFN stated that there are also spiritual values associated with the land,
including the area of the Project footprint, where people go to practise their rights and culture.
[1374] ACFN expressed concern that Shell seems to think that it is acceptable for traditional
resource users to have to go elsewhere without assessing the availability or accessibility of areas
elsewhere in ACFN’s traditional territory. ACFN stated that it is problematic for the traditional
users of the Kearl Lake area to find another place to exercise their rights partly due to the
diminishing resource base and decreases in vacant public land. ACFN noted that increases in
human population in the area and the drying of the PAD region further exacerbate the problem.
ACFN members noted that they have to exercise their rights close to where they live because
they cannot travel far to practise their rights and still be available for the jobs that they have in
the area. They also indicated that they now have to carry water because of concerns regarding
surface water contamination thus impeding how far they can travel on the land.
[1375] ACFN completed an analysis of the project-specific and cumulative effects of Shell’s
projects on ACFN TLU in the report Effects on Traditional Resources of the Athabasca
Chipewyan First Nation: The Shell Jackpine Mine Expansion and Pierre River Mine Project.
[1376] The report found that as of 2008, about 28 per cent of the ACFN RSA had been disturbed
by industrial developments. ACFN predicted that the cumulative effects of existing and
anticipated development, including the Project, would remove any undisturbed land from the
ACFN RSA by about 2042. Key findings from the report include the following:
•
The ecosystem in the ACFN RSA may have already shifted to a different state, particularly
where it overlaps with oil sands leases; the landscape now consists of very many small,
isolated patches of natural surfaces. Further development is almost certain to push the
ecosystem into a substantial and long-term that would constitute an ecosystem or regime
shift.
•
Bison and caribou have been virtually removed from the ACFN RSA and from most areas of
the RMWB and are scarcely available for traditional resource use.
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•
In the past 16 years, an average of 42 km2 (an equivalent of up to about 10 moose home
ranges) or 1.1 per cent of moose habitat has been removed each year from the ACFN RSA.
The decline in habitat directly translates to the decline of moose population density from 0.4
moose per km2 in the 1970s to 0.1 in the region of the oil sands leases presently.
•
In the past 16 years, beaver habitat experienced a yearly loss of 6.3 km2 or 0.6 per cent of the
1100 km2 available in 1992. Waterfowl habitat experienced a yearly loss of 3.6 km2 or 0.2
per cent of the 1 564 km2 available in 1992.
•
The disturbed areas are unlikely to be reclaimed. There is very little similarity in terms of
species composition between reclaimed sites and natural stands. Reclaimed sites show an
unnaturally low diversity of species.
•
The environmental assessment process for Alberta oil sands projects does not involve any
objective quantification of traditional resources. There is no evidence that the impacts on
First Nations’ traditional resource use are rigorously measured in any part of the assessment
process.
[1377] Shell’s evidence indicated that between 11 and 13 per cent of ACFN’s traditional lands
would be disturbed within the terrestrial RSA, depending on the case selected. ACFN was of the
opinion that comparing the disturbance in the Project area to the terrestrial RSA or the total
surface area of its traditional territory underestimates the effects of the Project.
[1378] According to ACFN, Shell’s estimate that terrestrial vegetation decreased by 20 per cent
from the PIC to the base case but would decrease by only another 9 per cent in the next 50 years
due to planned developments is unreasonable. ACFN stated that the underestimation of future
change is likely caused by the omission of many currently undisclosed disturbances, such as
disturbances from some finer scale developments and activities such as linear features,
exploration activity, cut blocks, and infrastructure development.
[1379] ACFN noted that to mitigate project effects on TLU, Shell proposed to:
•
provide compensation to directly affected RFMA holders,
•
continue consulting with key Aboriginal groups, including ACFN,
•
facilitate access across the Project area by trappers to their traplines,
•
provide cultural diversity awareness training to Shell employees and contractors, and
•
conduct ongoing consultation with key Aboriginal groups and participate in regional
planning initiatives to ensure closure and reclamation plans consider the long-term
sustainability of TLU activities.
[1380] ACFN stated that the proposed measures do not provide appropriate mitigation for the
effects of the Project on the exercise of ACFN’s rights. ACFN disagreed that Shell’s proposed
compensation to trapline holders is an appropriate mitigation for adverse effects on Aboriginal
TLU or Aboriginal and treaty rights.
[1381] ACFN stated that it is uncertain whether the landscape can be reclaimed and even if it
can, a successfully reclaimed landscape would no longer have any cultural significance for its
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people. According to ACFN, the effects of the Project on ACFN’s TLU would be permanent and
of high magnitude.
[1382] ACFN stated that the Project would contribute to already significant cumulative effects in
the region that threaten ACFN’s way of life. ACFN expressed concern that cumulative effects
are not effectively addressed in the context of specific projects and every proponent takes the
position that these cumulative impacts are not the result of its project.
[1383] ACFN’s assessment of cumulative effects predictions in the IKLU Report indicates that,
at the regional scale, cumulative effects will have high environmental consequences on
traditional resources such as moose and furbearers. ACFN stated that it already considers there to
be significant cumulative effects on these resources. ACFN also documented more than 215 sitespecific cultural or spiritual values within its RSA and said that some or all of these values were
likely to be adversely affected by the Project in combination with already existing disturbances.
[1384] ACFN said that perceived contamination of traditional food and water, including plants
and animals, will further contribute to avoidance of use. ACFN stated that the Project would
further contribute to ACFN’s observed changes in water quality and quantity, adversely affect
some or all of its ceremonial and major burial places, and affect its medicine collection activities.
[1385] ACFN stated that the tipping point, when the lands can no longer support the livelihood
of the First Nation, must be determined before the true impacts can be assessed. The amount and
nature of the resources needed in order to maintain its members’ Aboriginal lifestyle and culture
must be determined in order to assess the impact on their Aboriginal and treaty rights.
[1386] ACFN advocated for the development of a TRUMP that could be used to address
cumulative impacts on TLU, Aboriginal and treaty rights, and culture. ACFN indicated that the
TRUMP would be similar to a cumulative effects management framework for treaty rights and
would identify the resource thresholds and criteria required to assess impacts on Aboriginal and
treaty rights. ACFN suggested that the TRUMP would go further than conventional traditionaluse studies because the TRUMP would also address the importance of the traditional activities in
terms of the social, economic, and cultural health and wellbeing of ACFN members.
[1387] According to ACFN, oil sands development presents a significant threat to ACFN’s
ability to maintain its traditional practices and distinct culture. ACFN believes that a TRUMP
should be required before the approval of any further large-scale industrial development in the
oil sands region, including the Project, and that any subsequent regulatory process or regional
planning decision should adhere to the threshold and limits identified in the TRUMP. The
TRUMP should be the basis for taking treaty rights into account in regional planning, for projectspecific assessment and for monitoring and follow-up.
Water and River Values
[1388] ACFN expressed concern that the Athabasca River and its tributaries are increasingly
difficult to navigate. ACFN said that boats are used to procure fish and terrestrial resources
adjacent to river banks and allow ACFN members to access areas without disturbance from
industrial traffic. ACFN said that it is important for water levels in the Athabasca River to be
high enough to allow navigation by heavily loaded small boats.
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[1389] ACFN stated that it anticipates the Project will further increase the loss of access to, and
use of, traditional lands by ACFN members because of low water levels in the Athabasca River
downstream of the Project area and due to diversion of the Muskeg River. ACFN stated that the
impact of the Project on water quantity would be an impediment on access to reserve and
traditional lands.
[1390] ACFN stated that it participated in CEMA with the expectation that an in-stream flow
need limit would be established for the Athabasca River and that it would protect ACFN’s use of
the river and its Aboriginal and treaty rights. ACFN said that because it does not believe that the
proposed Phase 2 – Lower Athabasca River Water Management Framework for the Lower
Athabasca River is protective of ACFN’s use of the river and its rights, ACFN developed an
ABF limit, which is the water level ACFN believes is necessary to allow navigation, access to
traditional lands, and the exercise of Aboriginal and treaty rights by ACFN and other Aboriginal
groups. ACFN stated that the ABF limit would require that at least 1.2 m (4 feet) of water be
maintained in the river from fall to the end of the spawning season in the spring to allow for fish
migration and navigation.
[1391] ACFN requested that the Panel recommend that Alberta and Canada adopt and
implement the recommendations set out in ACFN’s submission on the Phase 2 Water
Management Framework, including the ABF limit. ACFN also recommended that any
authorization issued pursuant to the Water Act should require that withdrawal cease when flows
fall below the ABF limit.
[1392] ACFN also believes the increase in water withdrawals will contribute to the drying of the
PAD. ACFN stated that it agrees the Bennett dam altered the water flow in the PAD but
emphasized that the situation became noticeably worse with the expansion of the oil sands
industry after 2003. ACFN also stated that a valid climate change assessment is required in order
to fully understand the drying of the PAD.
[1393] Shell stated that it assessed project effects on the PAD in its updated May 2012 CEA for
the application case and PDC. Shell concluded that cumulative effects of the Project, in
conjunction with existing, approved, and planned developments, on water level changes and
flooding in the PAD would be negligible based on its predicted minimal reduction of the
Athabasca River’s average depth.
[1394] ACFN was of the opinion that currently perceived levels of water contamination, in
combination with other changes, are having serious psychosocial effects, resulting in widespread
avoidance and loss of use by ACFN members in the region. ACFN stated that the Project was
likely to result in increased loss of use, particularly downstream of the Project along the Muskeg
and Athabasca Rivers, in documented areas of traditional use, and on ACFN’s reserves. ACFN
stated that it predicted this effect with a high degree of confidence.
[1395] In its Athabasca River Use, Knowledge and Change Study, ACFN documented 14
specific instances of lost use due to concerns regarding water quality downstream from the
Firebag River. ACFN members reported changes in the following water quality indicators:
•
changes in the taste and smell of Athabasca River water;
•
presence of unusual foams or films on the water visible from boats or in cooking vessels;
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•
absence or decline of particular species, including insects, along the Athabasca River; and
•
abnormalities in fish, moose, and other game, particularly in areas near the Muskeg River
downstream of the Project, but also in other parts of the Athabasca River and PAD.
[1396] ACFN believed that muskeg is a living and breathing entity that is home to numerous
species of animals and sustains the entire ecosystem. ACFN also believes that the Muskeg River
is the life blood of the muskeg ecosystem, is sacred, and must be protected. ACFN said that in
addition, the Muskeg River is used for navigation, to access trapping areas, and for other
purposes.
[1397] ACFN noted that CEMA’s Muskeg River Integrity Group was tasked with developing a
watershed management plan for the Muskeg River basin but did not complete its work and at
present only an interim watershed management plan is in place. ACFN also noted that despite the
interim plan including an objective that there be no diversion of the mainstem of the Muskeg
River, the interim plan does not include the Project and does not address Shell’s proposed
diversion of the upper Muskeg River. ACFN expressed concern that once again it appeared that
bitumen ore was being given priority over protection of the Muskeg River basin. ACFN stated
that diverting the river is not protecting it. ACFN requested that regulators provide full
protection for the Muskeg River basin including the sterilization of the ore beneath it in order to
sustain the spirit of the river.
[1398] ACFN reported that the Athabasca River and Kearl Lake areas both represent fishing
sites used by ACFN members in the vicinity of the Project.
[1399] Shell stated that the information that it collected on traditional use indicated almost no
subsistence fishing within the Project footprint. Shell stated that, in terms of direct project effects
on fish and fisheries, the fish community within the direct Project footprint consists of relatively
few fish species and the upper Muskeg River generally does not provide habitat for migratory
species from the Athabasca River.
[1400] Shell noted in its 2012 draft NNLP that the EIA provided plans to conceptually integrate
operational and closure drainage between the Project and other relevant approved oil sands
mining operations in the Muskeg River watershed including KOSP. Shell stated that the main
effects of the Project would be downstream of Kearl Lake such that concluding that the Project
would have no direct effect on traditional fishing within the LSA.
[1401] ACFN expressed doubt about the efficacy of Shell’s proposed compensation measures
for fish and fish habitat. ACFN emphasized that fish in the compensation lake would not be
available for human consumption for many years because of contamination by methyl mercury,
resulting in the proposed compensation not being available to ACFN members for a long time.
ACFN also stated that there was no evidence that ACFN members would find fishing in a
compensation lake to be a culturally suitable alternative.
[1402] Shell acknowledged that habitat modelling of the Redclay Compensation Lake was based
on a mature lake, which may not occur until 20 to 30 years after initial filling. Shell noted that
one of the reasons for the proposed 2:1 compensation ratio was that it did not directly model the
time lag until the lake matures and interim conditions while the lake is developing.
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[1403] DFO explained that the compensation lake would not be available for traditional fishing
as long as mercury levels were high. DFO stated that the time required for the mercury level to
reach an acceptable level would vary depending on the mitigation measures, but confirmed that it
could take as long as 20 or 30 years.
Terrestrial Resources
[1404] ACFN suggested that the Project will remove or affect habitat for many species that are
traditionally relied upon, including woodland caribou, wood bison, and moose. ACFN noted that
high-quality moose, woodland caribou, and migratory bird habitat within the Project LSA and
rare wood bison habitat west of the Athabasca River will be directly disturbed. ACFN also stated
that use of these species will be impacted by reduced access for ACFN members, increased
industry and recreational access, and perceived increases in contamination of traditional
resources or foods, leading to increased scope and intensity of avoidance or reduced use.
[1405] ACFN stated that the Project will also remove a known and regionally important wildlife
corridor along the Muskeg River.
[1406] ACFN indicated its concerns about cumulative effects on moose, caribou, and wood
bison in the RSA given their cultural importance. ACFN stated that large, contiguous areas are
essential because of the wide-ranging and dispersed nature of wildlife resources in the boreal
forest, especially large ungulates such as moose, bison, and caribou, upon which much of
ACFN’s cultural practice and traditional economy depends. ACFN’s assessment of cumulative
effects indicated that at the regional scale they will have high environmental consequences on
traditional resources such as moose and furbearers.
[1407] ACFN indicated that historically important subsistence species such as woodland bison
and woodland caribou are already at dangerously low levels and are scarcely available for
traditional resource use throughout the region. It said that the regional landscape is changing in
ways that may lead to the disappearance of wildlife species, including caribou, bison, and moose.
[1408] ACFN stated that since the 1990s, many ACFN members have lost use of large portions
of land for the practice of rights, including subsistence rights, because of existing impacts such
as restricted and gated access to areas controlled by oil sands companies, traffic, disturbance, and
perceived contamination. The area affected includes important ACFN traplines; camps; cabins;
trails; hunting, fishing, and resource procurement areas; and habitat areas used historically by
bison, woodland caribou, and other species.
[1409] Consequently, ACFN considered the project effects on ACFN knowledge and use to be
significant and adverse based on the ability of ACFN members to hunt or rely upon populations
of wood bison and woodland caribou.
[1410] ACFN stated that caribou are a preferred, unique, and culturally important resource for
ACFN knowledge, use, and practice and that ACFN has a spiritual connection and relationship
with the caribou. ACFN also stated that it has a key role in protecting the caribou. ACFN
disagreed with Shell’s assertion that caribou were virtually absent in the LSA for the Project.
ACFN said that reports from its members suggest that caribou still use the LSA. Caribou and
their tracks have been seen throughout the LSA and Kearl Lake areas as recently as fall 2012.
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ACFN members said that the caribou regularly use the muskeg habitat in the LSA to raise their
young.
[1411] ACFN expressed concerns about effects on culturally important populations of woodland
caribou within its RSA and adjacent to the Project LSA (such as the Kearl Lake area). ACFN
said that within its RSA, areas of core woodland caribou habitat both north and east of the
Project and areas downstream of the Project along the Muskeg and Athabasca Rivers would be at
risk as a result of the application case.
[1412] ACFN stated that the wood bison are an important traditional resource for ACFN and that
ACFN relies on the Ronald Lake herd to exercise its traditional rights because it is the only herd
of wood bison available to ACFN hunters outside of Wood Buffalo National Park. ACFN was
concerned that construction of the Redclay Compensation Lake will have negative effects on the
Ronald Lake herd, potentially contributing to the demise of this herd. ACFN stated that bison are
currently hunted by ACFN members and are considered an important component of planned
future ACFN use.
[1413] ACFN noted that wood bison were listed as threatened under SARA in 2000, but that
Canada still hasn’t produced a recovery strategy. ACFN said its understanding from EC was that
a recovery strategy was to have been in place by the end of 2011.
[1414] EC stated that development of the recovery strategy had been delayed by discussions
about disease within the herds and the implications this had for the recovery strategy. EC said
that completion of the recovery strategy is now targeted for the end of 2013, following
consultation with stakeholders.
[1415] Shell stated that the wood bison population in the RSA is limited by disease and not by
the availability of habitat. As a result, Shell said that there will be a negligible decline in wood
bison abundance in the RSA from the PIC to base case, application case, and PDC. ACFN’s
expert, Dr. Komers, agreed with Shell’s assertion that bison are not habitat limited in the RSA.
[1416] ACFN stated that moose are a culturally important species that provides an important
source of protein for the community.
[1417] ACFN disagreed with the results of Shell’s PVA for moose (see the Effects on Wildlife
and Their Habitat section) and believed that Shell had not considered ACFN’s TEK, given the
contradictions in their respective conclusions. ACFN said that trappers and First Nations people
consistently report declining moose numbers in the region, whereas Shell’s analysis predicted
some growth in moose populations. ACFN further said that Shell’s PVA conflicts with
modelling conducted in the development of the TEMF, which concluded that moose populations
are already below their natural range of variation and will continue to decline.
[1418] ACFN indicated that between 1992 and 2008, an average of 42 km2 of moose habitat has
been removed each year from ACFN’s RSA and moose density has declined substantially.
ACFN members report that moose and deer are increasingly avoiding the Kearl Lake area.
[1419] ACFN concluded that destruction of habitat by the Project is likely to act in concert with
increased access by non-ACFN hunters to reduce the ability of ACFN members to hunt or rely
on moose for food. ACFN also concluded that these effects are likely to result in a discernible
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change to the preferred exercise of a culturally important practice, land use, or right and this will
elicit strong concern from ACFN members. ACFN members also reported that the noise from
cannons used in bird deterrent systems interferes with hunting moose and other animals.
[1420] ACFN was concerned about the health and taste of moose. ACFN said that many of its
members will avoid the use of moose if there is a perceivable behavioural or physical
abnormality (cysts or animals that look sick). It said that its members are currently cautious
regarding the hunting of moose and collection of other animals in the Firebag area in the RSA
because of fear of contamination.
[1421] ACFN indicated that migratory birds, especially spring waterfowl, were important in the
past and are currently highly valued and an essential component of planned future ACFN use.
ACFN further described that bird hunts are important focal periods for community and family on
the land, given that many ACFN families would congregate in large camps for the duration of
the hunt. As such, the seasonal bird hunt gatherings have great importance socially and culturally
for ACFN and support the sharing of knowledge and food among community members and
between generations. ACFN said that the Kearl Lake area is an important area for hunting
waterfowl.
[1422] ACFN said that both waterfowl and muskrat serve as indicators for the health of the PAD
and the Athabasca River. ACFN described how muskrat were culturally important for providing
clothing and food for its members. ACFN described a large-scale decrease in the number of
muskrat in recent history, which it attributed to oil sands development.
[1423] ACFN said that the decline in migratory bird abundance and changes in migratory routes
are affecting the spring hunt in the oil sands region and specifically in the PAD.
[1424] ACFN said that intentional disturbance of birds and flyways through use of deterrent
cannons on tailings ponds may further adversely impact the current or potential availability of
migratory birds for ACFN use in the RSA.
[1425] ACFN believed that the following factors could all contribute to the change of migratory
routes of birds:
•
large areas along the Athabasca River that are cleared of vegetation;
•
large plumes of dust, bad-smelling smoke, and pollution in the air;
•
large amounts of reflective metal and numerous large, noisy, brightly coloured vehicles
constantly moving; and
•
near constant noise that increases due to cannons and bird deterrent systems as birds fly
overhead.
[1426] EC confirmed that the migratory routes of birds have changed which could impact the
availability of these birds in the PAD. According to EC, the reasons for the changes in migratory
routes and associated decline of migratory birds in the PAD are not clear and the oil sands
industry may or may not be contributing to the observed changes.
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[1427] ACFN expressed concern that Shell did not appear to have incorporated into its
assessment the TEK related to migratory birds that ACFN had provided in 2008.
[1428] Shell indicated that ACFN participants at a CEMA-sponsored workshop in 2005
provided some TEK describing the decline of migratory birds and muskrat in the PAD. Shell
stated that its assessment of baseline conditions indicated no decline in the number of migratory
birds or muskrat in the PAD. Shell acknowledged that it did not know how to incorporate the
additional TEK ACFN provided because it was not consistent with the other baseline data that
Shell had collected.
Social, Economic, and Cultural Effects
[1429] ACFN was critical of Shell’s approach to the assessment of social, economic, and
cultural effects on ACFN. ACFN stated that Shell’s socioeconomic assessment focused narrowly
on mainstream economic issues and did not appropriately consider the unique interests, values,
and culture of ACFN. Similarly, ACFN was of the view that Shell’s cultural assessment suffered
from several methodological shortcomings and did not provide a proper assessment of the
impacts of the Project, or oil sands development more generally on ACFN culture.
[1430] ACFN submitted several detailed reports that identify and describe potential social,
economic, and cultural effects of the Project and development more generally on ACFN. A
Narrative of Encroachment Experienced by the Athabasca Chipewyan First Nation (Larcombe
Report) provides a summary of historic and current drivers of encroachment within ACFN’s
traditional territory and a comprehensive discussion of the resulting effects of encroachment on
ACFN rights, values, and knowledge. Athabasca Chipewyan First Nation Supplemental Social,
Economic and Cultural Effects Submission for Shell Canada’s Proposed Jackpine Mine
Expansion provides information about social, economic, and cultural changes experienced by
ACFN members over time and those anticipated in the future, with an emphasis on impacts from
the oil sands sector and Shell’s Project and PRM. ACFN acknowledged that Shell had provided
funding to support the completion of this report.
[1431] Cultural and social priorities identified by ACFN members reflect a desire for the
continued ability to
•
practise a traditional way of life;
•
maintain a healthy environment;
•
keep and strengthen family ties;
•
keep and strengthen community services and relations;
•
sustain physical, mental, emotional, and spiritual health; and
•
encourage economic sustainability.
[1432] ACFN also identified the following valued cultural components:
•
meaningful access to preferred traditional lands for traditional cultural pursuits;
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•
maintenance of traditional values, skills, and language through intergenerational knowledge
transfer;
•
maximizing time on the land for all generations;
•
access to clean air, water, wildlife, and vegetation;
•
adequate privacy to gain solace from quiet enjoyment of the land; and
•
respect, sharing/reciprocity, and balance in relations with other culture groups.
[1433] ACFN explained that its traditional way is a spiritual one and that it is important to the
Dene people to be connected to the land. ACFN indicated that when one is connected to the land,
the land takes care of its peoples’ physical and spiritual needs. ACFN stated that the land must be
preserved so that people can spend time out on it, and maintain their culture and way of life.
ACFN described cultural identity as a sense of knowing who you are and where you come from
and stated that it requires keeping the culture alive. ACFN said that the harvesting, consumption,
and sharing of country foods has deep cultural meaning for Aboriginal peoples and is a primary
means for transmitting cultural values, skills, and spirituality. Passing on knowledge and stories
through time spent together in families, in culture camps, and in gatherings and encouraging
strong interaction between Elders and youth are other important ways that social cohesion and
culture are maintained.
[1434] ACFN described how, over the past 120 years, government and industry activity has
progressively and cumulatively encroached on the landscapes and waterscapes that have
supported ACFN’s way of life and livelihood. Contemporary drivers of encroachment identified
in the Larcombe Report include population growth, hydroelectric development (including
development of the Bennett Dam), quarry and other mineral exploration and development,
timber harvesting and processing, oil sands development, linear disturbances, urban
development, recreational and sport use of the land and resources, public land designations and
plans, and government allocation of water resources.
[1435] ACFN stated that the development of the oil sands industry has cumulatively limited the
amount, quality, and distribution of land available for the meaningful practice of its treaty rights
and maintenance of its culture. ACFN explained that barriers such as gates and fences, irritants
such as noise pollution and increased traffic, physical disruptions such as infrastructure and
roads, and concerns about the quality of resources are all impediments to ACFN’s land use and
thus are impediments to the transmission of ACFN culture. ACFN stated that damage to its
traditional lands from the oil sands industry limits elders’ ability to teach skills that would allow
the next generations to live on the land as their predecessors did. ACFN stated that the lack of
transmission of skills affects the younger generation’s willingness to adopt a traditional way of
life, including practical skills, spiritual and ceremonial practices, and cultural values.
[1436] The primary economic impacts of encroachment identified in the Larcombe Report
include a decline in harvest success and opportunity and increased harvesting cost. ACFN stated
that 78 per cent of the community still harvest off the land and consume traditional resources on
a daily basis to provide for their families. ACFN said that the contribution of harvested goods to
individual family and community economic welfare can be significant.
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[1437] ACFN believed that the social, economic, and cultural effects of the Project will be
strongly adverse for ACFN members living on the land, but acknowledged that there will be both
adverse and positive effects for those living in Fort Chipewyan and Fort McMurray. ACFN
identified improvements to infrastructure and opportunities for employment, education, and
training as having been beneficial consequences of past developments, while outmigration from
the community, social dysfunction, and economic and impact inequities as having been negative
consequences.
[1438] ACFN identified a study that reported the country food consumption in Fort Chipewyan
(not limited to ACFN members) averaged 0.5 kg per person per week, with some families
reporting consumption of 1.25 kg per person per week of country food. ACFN explained that the
contribution of country food to the ACFN economy is important given the higher cost of food in
Fort Chipewyan and Fort McMurray. ACFN explained that elders, single parents, and people on
fixed incomes have no choice but to reside on and live off the land.
[1439] In order to provide a perspective on the economic value of country food to ACFN
members, ACFN provided rough calculations using the replacement cost method which involves
multiplying a retail price by reported average edible food weights for various species. ACFN
provided the following values for the country foods it typically harvests: moose $5792, barren
land caribou $1448, bison $8689, beaver $257, goose $51 and walleye $16. ACFN stated that a
modest harvest for a family could represent more than $13 000 of high-quality food for the year,
adding 61 per cent to the 2010 median after tax family income. ACFN stated that the
contribution of country food to lower income members such as elders or single mothers is even
greater.
[1440] ACFN explained that access difficulties, general disturbance, increased competition for
resources, having to go farther afield to attain harvest success or seek resources deemed safe to
eat, the need to haul potable water, and other issues all add hours of time to harvesting activities
and increase the cost of TLU. ACFN said that as the amount of time required for the harvesting
of traditional food increases, it becomes more difficult for members with a regular job to gather
traditional resources from the land.
[1441] According to ACFN, the psychosocial impacts of cultural loss due to changes to the land
and reduced emphasis on the harvesting, consumption, and sharing of country foods can result in
several sociocultural changes, including
•
a loss of traditional knowledge and skills, including the intergenerational transfer of
traditional knowledge and skills;
•
a general sense of alienation from traditional lands and loss of continuity and connection to
place;
•
a loss of sharing norms;
•
a loss of hope for the sustenance of traditional culture over time and a decline in cultural
identity and self-esteem; and
•
a decline in family, extended family, and community social organization.
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[1442] ACFN stated that cultural knowledge transmission occurs while on the land, where
children learn about such matters as cultural stories, legends, place names, and protocols of
respect for nonhumans. According to ACFN, the loss of intimate contact with the land is
identified by several authors as the primary reason for the degradation of traditional systems.
[1443] ACFN explained that it considered the removal of lands from Aboriginal use for periods
of time longer than one generation permanent for the purposes of traditional use and culture.
ACFN stated that the interruption of knowledge transmission regarding the disturbed areas
would have irreversible effects on tangible and intangible elements of culture and TLU. ACFN
said that by losing the use of a region, such as the Project area, impacts are expected on
particular forms of knowledge such as place names, histories, and the cultural practices that take
place in the area.
[1444] ACFN also expressed concern that due to direct disturbance by the Project, the holder of
RFMA 1714 and the other Aboriginal land users will have to practise their land use farther away.
ACFN stated that the land users currently relying on the Project area would likely have to use an
area that they are not familiar with and at a higher cost.
[1445] ACFN stated that continual fluctuations in population numbers are having negative
effects on the ability of community planners to anticipate needs and provide adequate housing
for residents of Fort Chipewyan and Fort McMurray and that these are further impeded by
restricted availability of land, materials, and labour for building.
[1446] ACFN reported that the number of Aboriginal workers in oil sands jobs has increased
steadily since the late 1990s, but the percentage of Aboriginals in the oil sands workforce
remains at 10 per cent or less. ACFN reported that large differences in salary and employment
rates exist between men and women in the Aboriginal workforce and that Aboriginal workers
report cases of racism in hiring and layoff practices, as well as on the job. ACFN stated that its
members face obstacles securing long-lasting employment in oil sands operations, particularly
because of a lack of education, training, skills, or a driver’s licence; inability to pass drug and
alcohol testing; and lack of opportunity for advancement to positions considered meaningful by
ACFN members, resulting in high turnover rates. ACFN acknowledged, however, that
companies operating in the oil sands have supported training initiatives and funded educational
programs for ACFN members.
[1447] ACFN stated that increased out-migration of ACFN members to Fort McMurray and the
associated increase in reliance on the wage economy and exposure to western industrial values
were further contributing to an erosion of ACFN culture. ACFN said that members who left the
community have less exposure to land-based culture and cultural programming and fewer
opportunities to access the cultural benefits of ACFN culture, such as the sense of well-being
from being out on the land. ACFN stated that because of their loss of connection to the
community, these individuals would be less likely to practise or adhere to Dene cultural values.
[1448] ACFN stated that the potential for an increased draw of ACFN members back into the
community due to Fort Chipewyan being a point of hire and fly-in/fly-out location for the Project
was seen as a benefit of the Project. Drawbacks of the fly-in/fly-out programs identified by
ACFN include the length and stress of rotation schedules and the social and family dysfunction
that may result from long absences of the working family members.
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[1449] ACFN expressed concern that the effects of the Project on human health lack detail and
that individual and community health concerns have not been addressed in a realistic and
comprehensive manner. ACFN also believed that the indirect impacts from this project combined
with other industrial activities in the region on individual and community health remain
unaddressed. ACFN was of the view that given that potential mitigation measures to address
these impacts have not been developed, the magnitude of residual effects and the effectiveness of
mitigation cannot be determined. ACFN also said it is unclear who will be responsible for
monitoring and assessing health risks to ACFN communities.
[1450] The Larcombe Report states that there is virtually unanimous agreement within the
medical field that country foods contribute to good health because these foods are nutritionally
dense, travelling and securing country foods generally requires significant physical exertion, and
those with less access to country foods and limited disposable income are often faced with
having to purchase cheaper and less healthy alternatives. The report notes that a shift away from
country foods and the associated change in dietary nutrition is often cited as the basis for the
declining health status of Aboriginal peoples.
[1451] The Larcombe Report also identified decreased food security and the associated
psychological stress as an important effect. Declining opportunities to access traditional foods,
increased costs, and concerns about contamination of country foods may all contribute to
psychological stress related to the availability and safety of food sources.
[1452] ACFN stated that the influx of nonaboriginal oil sands workers into the region affects the
availability of health and social services through increased demand (particularly by those who
suffer mental health and dysfunction issues related to work conditions), reduced availability of
service providers, and increased pressure on transportation and accommodation required by those
seeking services not available in their home community. These impact pathways contribute to the
rising communal and individual anxiety in Fort Chipewyan and may be causing adverse mental
and physical health outcomes.
[1453] ACFN cited temporary displacement and permanent out-migration to access education,
training, and jobs; increased exposure to social dysfunction risks, particularly drugs and alcohol;
and reduced connection to culture, extended family, and core values as negative social
consequences of oil sands developments.
[1454] Less access to traditional livelihoods has resulted in an increased reliance on education
and an increased desire for higher quality and more diverse (nonoil sands related) options in the
community. The sense that the oil industry is the only employment option in the community has
led some ACFN members to feel mental stress; experience social and cultural conflicts in the
workplace; feel that their options for meaningful work are limited; feel powerless to control their
futures; and experience a dissociation from traditional culture. The latter are cited as factors
contributing to youth suicide rates. Costs and logistics associated with seeking employment and
education outside Fort Chipewyan are prohibitive to many ACFN members and have the
potential to disrupt community and family dynamics.
[1455] ACFN believed that encroachment has and continues to directly and indirectly affect the
ability of ACFN members to pursue and enjoy the rights associated with the use of the landscape
and waterscape for cultural, social, economic, and health benefits. The Larcombe Report
acknowledged however, that there is currently insufficient information to make a definitive
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statement as to whether ACFN’s ability to pursue or enjoy these rights is at or beyond the
thresholds necessary for sustainability. ACFN believed that the project-by-project environmental
assessment and regulatory review process does not permit a comprehensive assessment of
impacts resulting from existing, proposed, and planned development on ACFN rights, values,
and knowledge. ACFN believed that an effects or mitigation monitoring program focused
specifically on traditional use and knowledge would contribute to a better understanding of the
situation and more proactive decision-making.
[1456] ACFN concluded, based on its analysis, that while the Project has the potential to have a
marginally beneficial impact on ACFN economic conditions, there is increasing evidence that
ACFN members do not feel the tradeoffs on the environment, human health, ACFN way of life,
well-being, and quality of life that are required for them to benefit from an incremental increase
in wage economic activity from new oil sands development are acceptable or worth the risk.
Analysis and Findings
Rights Being Asserted
The Agreement requires the Panel to consider the effects of the Project on asserted or established
Aboriginal and treaty rights, to the extent the Panel receives such information. The Panel has not
made any determinations as to the validity of the Aboriginal or treaty rights being asserted by
ACFN or the strength of such claims but for the purposes of assessing the potential effects of the
Project on ACFN’s Aboriginal and treaty rights, the Panel accepts that ACFN has the rights
being asserted.
Consultation
[1457] The Panel notes the concerns raised by ACFN related to Shell’s consultation activities.
[1458] The Panel understands that ACFN has unresolved concerns about the Project and that
ACFN and Shell were not able to come to agreement on one aspect of the measures necessary to
mitigate the effects of the Project. The Panel also understands that ACFN and Shell continue to
have differences of opinion regarding several issues, including the methodology Shell used to
assess the impacts of the Project on ACFN TLU, rights, and culture, the significance of Project
and cumulative effects, and the diversion of the Muskeg River.
[1459] The Panel believes that it is possible for effective engagement and consultation to occur
without the parties coming to agreement on all matters. The Panel understands that it may be
very difficult or even impossible for agreement to be reached on some issues given the divergent
and competing interests and objectives of the parties.
[1460] The Panel notes that Shell and ACFN have a long history of consultation and working
together. Although the relationship appears to have become somewhat more adversarial recently
and the parties were unable to reach a mitigation agreement for the Project, the evidence
submitted by both Shell and ACFN indicates that extensive interaction and consultation has
occurred concerning the Project since at least 2007. Shell provided numerous opportunities for
ACFN to learn about and provide comments on the design and assessment of the Project and
provided significant capacity funding to allow ACFN to complete project-specific technical
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reviews and traditional use studies as well as to support the day-to-day operation of the ACFN
IRC.
[1461] The Panel notes that although Shell completed its cultural assessment without the direct
involvement of ACFN, Shell also provided funding to allow ACFN to complete its own cultural
assessment, which ACFN submitted to the Panel.
[1462] The Panel believes that Shell invested considerable time, effort, and resources in order to
understand and, where possible, address ACFN concerns related to the Project. The Panel finds
that Shell’s efforts were reasonable and appropriate.
[1463] The Panel acknowledges ACFN’s frustration with what it perceives as an unwillingness
by Alberta and Canada to meaningfully consult and work with ACFN to address its concerns
about the Project, the taking up of lands within its traditional territory, and the assessment and
management of cumulative effects that it believes are impacting ACFN TLU, rights, and culture.
[1464] The Panel notes that Canada pointed to the correspondence between ACFN and federal
government departments, as well as its own submissions, as evidence that Canada had and
continues to consult with ACFN.
[1465] The Panel stated at the outset of the hearing that it would not rule on the adequacy of
Crown consultation as it did not have the jurisdiction to do so, and even if it did have the
jurisdiction, it would be premature to do so as there would be further opportunities for
consultation before Crown decisions are made or authorizations issued for the Project.
[1466] The Panel notes that both Alberta and Canada stated in the NQCL process that the
consultation process was not yet complete and that there would be additional opportunities for
consultation after the Panel’s report had been completed and before Crown decisions or
regulatory authorizations were issued for the Project. The Panel has therefore included a
recommendation that before other provincial and federal approvals are issued, Alberta and
Canada consider the adequacy of the Crown’s consultation with each of the Aboriginal groups in
light of the issues identified in this report to determine whether additional consultation is
necessary to address these issues.
[1467] With respect to ACFN’s request that the Panel recommend that an independent
commission of experts be established to evaluate consultation and accommodation of impacts in
the oil sands region, the Panel declines to make this recommendation as it does not believe this
recommendation falls within its jurisdiction or mandate.
Effects on Traditional Land Use, Rights, and Culture
EIA Methodology
[1468] The Panel notes ACFN’s concerns about the methodology Shell used to assess the effects
of the Project on ACFN TLU, rights, and culture. The Panel shares some of those concerns, as
outlined in the Shell’s Assessment of Impacts to Aboriginal Traditional Land Use, Rights, and
Culture section.
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[1469] In light of the methodological concerns identified, the Panel found that it was unable to
rely on the significance determinations provided by Shell for Project effects and cumulative
effects on environmental resources and the associated effects on Aboriginal TLU, rights, and
culture. The Panel, therefore, completed its own assessment of significance based on the
information provided by Shell and the documents and evidence provided by the Aboriginal
groups, including ACFN.
Traditional Land Use
[1470] The Panel notes that the land within or near the Project LSA is already disturbed by other
industrial projects and evidence has shown that avoidance of use is already occurring due to
access restrictions, loss of enjoyment due to noise and odours, and fear of contamination. The
Panel notes that despite the loss of use that is already occurring, ACFN provided evidence of
historic and ongoing TLU in the Project area and that some of the impacted values are unique.
[1471] The Panel understands that some trapline areas will be affected by the Project and that
RFMA 1714, of particular importance to ACFN, will be affected to a significant degree. The
Panel also understands that the Project area is a shared land and that more persons than just the
trapline holder and his/her family practise their land use within or close to the Project footprint.
The Panel notes that Shell plans to compensate the trapline holders for their loss but agrees with
ACFN and the other Aboriginal groups that this compensation is for the loss of commercial
trapping rights and does not provide mitigation for Project effects on other Aboriginal uses or
users of the land.
[1472] The Panel has determined that the Project will likely result in significant adverse effects
at the LSA level on several terrestrial resources of importance to ACFN including wetlands,
traditional plant potential, biodiversity, and wetland-dependant migratory birds and species at
risk.
[1473] The Panel notes that Project effects will be long term as reclamation and return of the
land for traditional use will not occur for many years. The Panel also believes that the other
mitigation measures proposed by Shell do not provide adequate mitigation for the loss of
traditional use in the interim. The Panel, therefore, finds that the Project will result in a long-term
loss of TLU opportunities for ACFN members. However, while the Panel believes that the
Project will adversely affect the TLU activities of some ACFN members in the Project area, the
Panel does not believe that Project effects will destroy or fundamentally alter the ability of
ACFN members to practise TLU activities or exercise their Aboriginal or treaty rights. The Panel
believes that there are still areas within the homeland and proximate zones identified by ACFN
where its members may practice TLU activities and exercise their Aboriginal and treaty rights.
While the Panel acknowledges that some of those areas are also subject to development pressures
and that there are practical limits to how far individuals may be able or willing to travel to access
the resources necessary for these activities, the Panel concludes that the Project effects on
ACFN’s TLU and Aboriginal treaty rights are adverse, but not significant.
[1474] The Panel has also determined based on the evidence that the Project, in combination
with other existing, approved, and planned developments, is likely to result in significant adverse
cumulative effects on several environmental resources of interest to ACFN in the broader region
surrounding the Project, including wetlands, old-growth forests, traditional plant potential,
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biodiversity, and wetland- and old-growth-dependant migratory birds and species at risk,
including caribou.
[1475] Shell’s updated CEA concluded that the total amount of disturbance for the application
case and PDC amounted to 11 per cent and 13 per cent of ACFN’s total traditional territory,
respectively. The Panel notes, however, that if only the portion of ACFN’s traditional territory
that occurs within the RSA is considered, the amount of disturbance increases significantly to 35
per cent and 41 per cent of the territory for the application case and PDC, respectively.
[1476] The Panel is of the opinion that ACFN has provided evidence of existing cumulative
effects on its TLU activities leading to loss and avoidance of use and that traditional users are
finding it increasingly difficult to relocate and find lands of equivalent value. The Panel,
therefore, finds that the Project effects, in combination with the effects of other existing,
approved, and planned projects, are likely to have a significant adverse effect on ACFN’s TLU
and Aboriginal and treaty rights in the broader region surrounding the Project.
[1477] The Panel agrees with ACFN that assessing the effects of individual projects on the TLU
and Aboriginal and treaty rights of ACFN and the other Aboriginal groups is not efficient or
effective and that LARP does not specifically address the issues of Aboriginal TLU or rights.
The Panel has therefore included a recommendation that Alberta develop, in collaboration with
Canada, the Aboriginal groups, and other stakeholders, a TLU management framework as part of
the LARP.
[1478] The Panel acknowledges and understands the traditional and cultural importance of
caribou, wood bison, and moose to ACFN. The Panel notes that the clearing of the land for the
Project will reduce habitat availability for all three species and result in increased difficulties
accessing the species by ACFN members. Although the Panel has determined that Project and
cumulative effects to wood bison and moose were adverse, but not likely to be significant (see
the Effects on Wildlife and Their Habitat section), the Panel has included several
recommendations to Canada and Alberta regarding the management of these species. The Panel
has also included recommendations to the Governments of Canada and Alberta concerning the
management of caribou.
Navigation
[1479] The Panel notes ACFN’s concerns about low water levels in the Athabasca River and the
PAD and the impact these low levels have on navigation, TLU, and the exercise of Aboriginal
and treaty rights. The Panel acknowledges that changes in navigation may be occurring but
believes the reasons for the observed changes are not clearly understood and are likely the result
of a combination of factors, including the discontinuation of dredging, the construction and
operation of the Bennett dam, variation in water flows due to natural wet-dry cycles or climate
change, and water withdrawals by oil sands operations and other upstream water users.
[1480] The Panel also notes ACFN’s concerns about the delay in finalizing the Phase 2 – Lower
Athabasca River Water Management Framework and that the absence of a commitment to a
level which ensures protection of Aboriginal use (ABF) in the draft Phase 2 Framework. The
Panel recognizes that federal and provincial agencies have already established what they
consider to be acceptable low-flow restrictions within the Framework based in part on
consultation with Aboriginal stakeholders. The Panel also understands that the Water
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Management Framework for the Lower Athabasca River Phase 1 contains safeguards for
seasonal low-flow periods to prevent major water withdrawals during high-risk times of the year.
[1481] Based on Shell’s commitment to comply with existing flow allocation restrictions
outlined in the current Water Management Framework for the Lower Athabasca River Phase 1
and with future Phase 2 conditions, and the negligible effects from Project related water
withdrawals on regional water flows, the Panel concluded that the Project was unlikely to result
in significant adverse Project or cumulative effects to water levels or navigation in the Athabasca
River or PAD. The Panel, therefore, also concluded that the Project is unlikely to result in
adverse cumulative effects to Aboriginal traditional use or Aboriginal or treaty rights.
[1482] Notwithstanding that the Panel determined that the Project was unlikely to result in any
significant adverse effects to water levels or navigation in the Athabasca River or PAD, the Panel
has included several recommendations to the Governments of Canada and Alberta that address
concerns raised by ACFN about water levels and navigation on the Athabasca River (see the
Shell’s Assessment of Effects on Aboriginal Traditional Use, Rights, and Culture section)
Diversion of the Muskeg River
[1483] The Panel notes that ACFN has significant unresolved concerns related to Shell’s plans to
divert the upper portion of the mainstem of the Muskeg River, including its effect on the spirit of
the river. The Panel found that the diversion of the Muskeg River was in the public interest
having regard for the large amount of bitumen resource that would be sterilized if the river is not
diverted, the low fisheries habitat and resource potential of the segment to be diverted, the
negligible to low effects to downstream water quantity and quality predicted, and limited
evidence of current traditional use along this stretch of the river. The Panel also had regard for
TC’s conclusion that the effects of the diversion of the Muskeg River on navigation could be
mitigated.
[1484] The Panel notes that both Fort McKay and the MCFN found Shell’s proposed MRDA
satisfied their concerns about the diversion of the river. However in light of ACFN’s unresolved
concerns, the Panel recommends that the Governments of Alberta and Canada consider ACFN’s
unresolved concerns about the diversion of the Muskeg River and the need for additional
consultation, mitigation, or accommodation before other provincial and federal approvals are
issued.
Fishing
[1485] The Panel notes Shell’s assertion that there is little evidence of traditional fishing by
ACFN in the upper reaches of the Muskeg River appears to be supported by the limited evidence
provided by ACFN regarding this use. Given the limited evidence of fishing in the areas of the
Muskeg River to be diverted, Shell’s proposed measures to protect downstream fisheries and
Shell’s plans to compensate for Project effects to fish and fish habitat through construction of the
Redclay Compensation Lake, the Panel found that the Project is unlikely to result in significant
adverse Project or cumulative effects on fish or fish habitat. The Panel, therefore, also concluded
that the Project will not have significant adverse effects on Aboriginal fishing.
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Water Quality
[1486] The Panel notes ACFN’s concerns related to water quality in the region. Based on the
modelling and mitigation proposed by Shell, the Panel concluded that the Project will not result
in significant adverse effects to water quality in the Athabasca River, downstream reaches of the
Muskeg River, or PAD. The Panel therefore also concluded that the Project would not likely
result in significant adverse effects to TLU or aboriginal or treaty rights as a result of water
quality issues.
[1487] The Panel acknowledges that ACFN and the other Aboriginal groups raised concerns
about the quality of data and assumptions used in Shell’s water quantity and quality models and
that the modelling is only as reliable as the data and assumptions used to generate and populate
the models. Although models will always be subject to some uncertainty, the Panel believes that
when fully implemented, the surface water quality management framework under LARP and the
new Joint Canada-Alberta Implementation Plan for Oil Sands Monitoring are appropriate
mechanisms to confirm the accuracy of assessment model predictions and to identify any adverse
cumulative effects to water quality.
Social, Economic, and Cultural Effects
[1488] The Panel notes ACFN’s concerns about the methodology employed by Shell in its CEA.
The Panel has similar concerns as summarized in the Shell’s Assessment of Effects on
Aboriginal Traditional Land Use, Rights, and Culture section.
[1489] The Panel found Shell’s cultural assessment of limited value in understanding the effects
of the Project on ACFN culture because Shell’s assessment was done at a very high level and did
not provide an assessment of the potential cultural effects of the Project on each First Nation or
Aboriginal group as requested by the Panel. Shell’s cultural assessment also relied heavily on
Shell’s determination of the significance of Project effects to the resources of importance to
Aboriginal people, some of which the Panel did not agree with.
[1490] The Panel found the information provided by ACFN with respect to the effects of
encroachment on its rights and interests and the social, economic, and cultural effects of the
Project and PRM on ACFN to be very helpful in developing the Panel’s understanding of the
effects of the Project as well as development more generally, on ACFN culture. The Panel finds
that ACFN provided extensive evidence of impacts to its TLU and explained how these impacts
to its TLU result in impacts to ACFN culture.
[1491] Based on the evidence provided by Shell and ACFN, the Panel believes that oil sands
activity and other development and activities within the RMWB have already contributed to
significant socioeconomic and cultural change for ACFN. Some of the effects, such as increased
employment and income levels, have been positive while others, such as loss of opportunities for
TLU activities and migration out of the community, have been negative. The Panel finds that the
cumulative effects on some elements of ACFN’s culture are already adverse, long-term, likely
irreversible, and significant and that these effects are likely to increase in the future if the
projects identified in the application case and PDC proceed as planned.
[1492] The Panel is of the opinion that people’s cultures are naturally evolving and that the
adverse aspects of the cultural changes can be mitigated when people have control over the
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changes experienced in their daily life. The Panel, therefore, recommends that the Government
of Alberta, in conjunction with the Government of Canada, provide greater opportunities for
involvement of ACFN and the other Aboriginal groups in regional planning and in the
stewardship of the traditional resources, in order to mitigate the adverse effects on the TLU and
culture of ACFN.
[1493] The Panel acknowledges ACFN’s concerns about the potential impacts of oil sands
development on the health of ACFN members living in Fort Chipewyan and elsewhere in the oil
sands region. Although the Panel concluded that the Project was not likely to result in significant
adverse Project or cumulative effects to human health, the Panel has included a recommendation
that Alberta Health and Wellness and HC complete a regional baseline health study focused on
First Nations, Métis, and other Aboriginal groups that considers all relevant health factors,
including environmental exposures and potential exposure pathways such as water, air, and
consumption of traditional foods (see the Human Health section). The Panel notes that the Joint
Review Panel approving Phase 1 (EUB Decision 2004-009) made a similar recommendation.
Métis Nation of Alberta
Evidence
Participation and Requested Disposition
[1494] MNA stated that it represents Métis members in the region from Lac La Biche to Fort
Chipewyan, Alberta, including Métis Locals 1935 (Fort McMurray) and 125 (Fort Chipewyan)
and several Métis individuals. MNA did not represent FMMCA (Métis Local 63).
[1495] MNA stated that Shell’s EIA was lacking in information about Métis traditional use. It
was concerned about impacts on Métis use of lands and resources and socioeconomic impacts.
MNA requested that the Panel deny Shell’s application on the basis that the application did not
address the impact on the Aboriginal rights of the Métis people of the area.
[1496] MNA made several recommendations to the Panel. Appendix 8 provides a summary of
key MNA recommendations.
Rights Being Asserted
[1497] MNA stated that its members have historically used a broad traditional territory located
along both sides of the Athabasca River and that there are many contemporary Métis communities
in northern Alberta, including Fort McMurray, Fort McKay, Fort Chipewyan, Conklin, Willow Lake,
and Chard. MNA stated that its members continue to hunt, trap, and conduct other traditional
activities in this area, including in the Project area.
[1498] MNA stated that section 35 of the Constitution Act, 1982, includes Métis people and
confirms that the Métis have Aboriginal rights. MNA stated that it also relies on the Supreme
Court of Canada’s Powley decision, the first affirmation of Métis rights in accordance with
section 35. According to MNA, Powley defined several important ideals:
•
It confirmed that Métis are a full-fledged rights-bearing people.
•
It set out a test for the recognition of Métis communities and their food harvesting rights.
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•
It affirmed that Métis harvesting rights can coexist with treaty or Aboriginal rights of First
Nations.
[1499] MNA also asserted that Alberta’s Métis Harvesting in Alberta (June 2007 with updates)
affirms Métis harvesting rights for some Métis in some areas of Alberta, including the Project
area and the broader region between Lac La Biche and Fort Chipewyan.
[1500] Shell questioned the relevance of the Powley decision to the current proceeding. Shell
argued that Powley pertains to how rights are determined and that while Shell is interested in
determining the effects of the Project on Aboriginal rights, it does not attempt to establish
whether the rights exist. Shell stated that for the purposes of consultation, Shell assumed that the
Métis have the rights they assert.
Adequacy of Consultation by Shell
[1501] Shell stated that it has consulted with Fort McMurray Métis Local 1935 and Fort
Chipewyan Métis Local 125 since 2007 in the same manner as consultation with other
potentially affected Aboriginal groups and that Shell has established good neighbour agreements
with these locals. Shell stated that it had attempted consultation with Chard Métis Local 214 and
Willow Lake Métis Local 780 but had not received a response.
[1502] Shell stated that it completed its consultation plan, which AENV approved, according to
Alberta’s First Nations Consultation Policy. Shell said that it had consulted with the Métis,
notwithstanding that the policy provides no direction or guidance with respect to Métis
consultation.
[1503] MNA asked Shell what impact AENV’s rejection of Fort McMurray Local 1935’s and
the Wood Buffalo Local Métis Corporation’s statements of concern had on Shell’s approach to
consultation with the Métis Locals. Shell said that it did not change Shell’s approach or
commitment to engaging with the Métis Locals. Shell stated that it had a long relationship and
had been consulting with Métis Locals 125, 1935, and 63 and reiterated that it had good
neighbour agreements with each of these groups.
[1504] MNA stated that Shell’s consultation with the Métis locals was not meaningful. MNA
said that meetings were focused on providing information rather than consultation. MNA
indicated that Shell did not adapt the content of the meetings and presentations for the audience
and had failed to consult with some key Métis individuals, including a Métis trapline holder.
MNA interpreted Shell’s inability to recall any specific concerns of the Métis locals about the
Project when asked at the hearing as a reflection of Shell’s general lack of understanding of
Métis issues and concerns.
[1505] Shell stated that it was surprised by MNA’s characterization of its consultation with
Métis Locals 125 and 1935 as not meaningful. Shell submitted that it held dozens of meetings
with these locals as indicated in the consultation logs. Shell said that it received positive
feedback from the participants in the December 2008 meeting with Local 1935 that MNA
characterized as not meaningful. Shell said that the Métis trapper MNA referred to had attended
this meeting and that resulted in a direct dialogue between the trapper and Shell. Shell said that it
had discussed how best to incorporate the traditional use information from Métis Local 1935 and
provided a detailed written response to Local 1935 following the meeting. Shell said that it held
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another open house and workshop with Métis elders in May 2009 and similar open houses with
Local 125 in April 2009.
[1506] Métis Local 125 stated that it was concerned that although Fort Chipewyan is a Métis
town and its members live in the same community and would experience the same impacts from
the Project as ACFN and MCFN members, Shell did not treat them the same as their First
Nations’ neighbours. Métis Local 125 did acknowledge however, that its relationship with Shell
has generally been good.
[1507] MNA was concerned that Shell had not provided capacity funding to MNA or the Métis
locals it represented to allow them to complete project-specific TLU or technical reviews, which
limited its ability to participate effectively in the review of the Project. MNA also argued that
Shell’s approach to capacity funding was not equitable because Shell had provided significant
funding to several First Nations, including FMFN, ACFN, and MCFN, but not to MNA or the
Métis locals it represented.
[1508] Shell stated that the funding it provided to Fort McKay was for both the FMFN and the
Fort McKay Métis (Local 63/FMMCA). Shell said that it provided funding to Fort McKay
because it is the community closest to the Project and is therefore the community most likely to
be directly affected by the Project.
[1509] Shell acknowledged that it had not provided any capacity funding to MNA, but also
stated that the role of MNA with respect to representing the Métis locals was not clear. Shell said
that its approach had been to work directly with the Métis Locals. Shell also noted that MNA had
received $80 000 in funding from CEAA to allow it to participate in the review process.
[1510] MNA stated that it was working with Métis locals to complete a preliminary assessment
of the direct effects of the Project on Métis activities and rights. MNA stated that all Métis locals
need to be consulted because they do not know where their members may be practising their
rights and no TLU studies have been completed.
[1511] MNA acknowledged that it had received funding from CEAA but said that this funding
was for participation in the review processes for both the Project and the Pierre River Mine.
MNA stated that although it appreciated the funding, the $40 000 provided by CEAA for this
proceeding would only partially cover the cost of retaining consultants, experts, and legal
counsel and was not sufficient to enable MNA to complete the mapping, TLU, and TEK studies
required to effectively understand the impact of the Project on the Métis. MNA argued that the
lack of capacity funding is a key concern for MNA and that it simply does not have the resources
available to define the TEK and TLU information related to Shell’s application. MNA also said
that the ERCB has never awarded advanced funding to Métis groups.
[1512] Fort Chipewyan Métis Local 125 stated that it does not have the capacity to effectively
participate in the review of large projects such as this one. Métis Local 125 reported that it has
only an office manager and one part-time assistant to support the president and help manage the
affairs of the local. Métis Local 125 said that it had submitted a request for capacity funding to
Shell in July 2012 but that Shell had not provided the requested funding.
[1513] Shell stated that it was a major contributor to the Mark of the Métis study. Shell also said
that it had provided funding to Métis Local 125 in 2009 for a TLU study and that in June 2012,
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Shell agreed to provide additional funding to Métis Local 125 so that it could complete the TLU
study.
[1514] Métis Local 125 said that it had completed the Métis Use and Occupancy Study in
October 2012 and acknowledged that Shell had provided some of the $300 000 funding
requested by Métis Local 125 for the study.
[1515] Shell believed that it was responsive to funding requests from the Métis locals. Shell said
that since 2007, it had provided more than $700 000 to Métis Locals 125 and 1935. Shell stated
that since 2009, it had paid or committed to pay over $260 000 to Métis Local 125 and since
2007 had provided roughly $441 000 to Métis Local 1935. Shell acknowledged that this was not
the core consultation funding that the Métis Locals were looking for, but was provided in
response to specific needs identified by those Métis Locals.
[1516] Shell stated that although it had been meeting and consulting with Métis Local 125 up
until August or September 2012, the local had not identified any problems related to capacity
funding up to that point in time. Shell stated that it had recently agreed to provide funding to
Métis Local 125 to help with the cost of participating in this regulatory process, but
acknowledged that this occurred very late in the process because the local raised its concerns
only very recently. Shell stated that the request by Métis Local 125 for technical consultants to
help with review of the Project had also not been made until very recently.
Adequacy of Consultation by the Crown
[1517] MNA asserted that the Government of Alberta has not engaged in consultation with any
Métis people with respect to the Project and has not upheld its duty to consult with the Métis
people whose rights will be impacted by the Project.
[1518] MNA said that the duty to consult requires the Crown to consult with and, where
appropriate, accommodate Métis rights and interests when considering initiating conduct that
might adversely affect Métis rights, interests, or ways of life or the sustainability of lands the
Métis rely on. MNA argued that the duty to consult is triggered when the Crown has real or
constructive knowledge of the potential existence of credible Métis rights claims and it
contemplates conduct that might adversely affect those rights, including issuing an approval for
the use of Crown land that is inconsistent with the Aboriginal interest.
[1519] MNA argued that Métis rights are collective rights and because it is the Métis community
that holds rights, it is the community that needs to be consulted with respect to potential impacts
on Métis rights and interests. MNA said that the duty to consult and accommodate is not fulfilled
by government or proponents talking to individual Métis citizens or individual Métis Elders or
harvesters. MNA also said that before consultation can properly occur, the rights that are impacted
need to be understood.
[1520] MNA argued that Shell has not fulfilled the EIA TOR or the Panel’s TOR and therefore
cannot be said to have relieved the Crowns of its obligation to consult and/or accommodate the
impacts on the Aboriginal rights asserted.
[1521] MNA said that the Government of Alberta has never approached the Métis to discuss the
impacts of the oil sands. MNA argued that notwithstanding that it has rights that must be
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protected under section 35, it receives less consultation than would be received by nonrightsbearing stakeholders. MNA said that it wants the Government of Alberta to recognize that the
Métis are Aboriginal people and to fulfill the duty of the Crown.
[1522] MNA believed that the Government of Alberta does not use the same standard for
consultation with Métis people as it does for First Nations people. To support its assertion, MNA
pointed to AENV’s rejection of Métis Local 1935’s statement of concern because the
information provided did not clearly identify how more than one member or family of Métis
Local 1935 would be directly affected by the Project. MNA said that, on the other hand, AENV
had accepted FMMFN #468’s statement of concern despite a similar lack of detail or specific
concerns.
[1523] MNA also expressed concern that AENV rejected Métis Local 1935’s statement of
concern even though it was clear that a lack of capacity made it very difficult for Métis Local
1935 to review the Project and assess its impacts. MNA noted that despite a significant lack of
capacity in most Métis communities, Alberta does not have a capacity funding program for the
Métis.
[1524] MNA noted that the Government of Alberta’s First Nations Consultation Policy is for
First Nations only and none of the consultation requirements in the policy apply to Métis people.
MNA believed that a Métis consultation policy is required and noted that CAPP recommended
that Alberta develop a Métis consultation policy in its October 2010 submission regarding the
Alberta Regulatory Enhancement Project.
[1525] MNA stated that it believed that both industry and government discount the views and
interests of Métis people and that they are treated as a people without rights. MNA said that
Canada appears to view Métis rights and consultation as a provincial matter while the provinces
see it as a federal issue, resulting in a political limbo for the Métis people.
Effects to Traditional Land Use, Rights, and Culture
[1526] MNA was concerned that Shell’s EIA focuses only on TLU information provided by
FMFN, ACFN, and MCFN and that Shell incorporated no Métis-specific TEK or TLU
information into the EIA. MNA said that Shell had not made reasonable efforts to include Métis
specific information in the EIA and ignored the information that was available. MNA said that
the work that was completed for the Mark of the Métis study was available but not included in
the EIA even though Shell knew of the study.
[1527] MNA said that Shell made few references to the Métis in its EIA and those that were
made were for the most part incorrect because they referred to Métis individuals as nonaboriginal
or as members of a First Nation.
[1528] MNA said that interviews with specific individuals or one Métis local does not give a
complete picture of what needs to be protected. MNA said that even though Shell may have
interviewed a few Métis rights-holders living in Fort McKay, Shell excluded other Métis rightsholders living in the region who harvest in the Project area. MNA, therefore, argued that Shell’s
application was not complete in accordance with the Panel’s TOR. MNA said that although the
TOR require evidence on the potential effects on asserted Aboriginal rights, Shell excluded the
Métis people from its application.
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[1529] Shell acknowledged that references to First Nations in the EIA do not generally include
Métis, except for references to Fort McKay or the FMFN because FMFN included information
from Fort McKay Métis in the TEK and TLU information it provided to Shell. Shell believed
however, that the TLU activities of the Métis and First Nations were similar enough that the
TLU gathered from the First Nations and used in the EIA would allow for an assessment of
potential effects to Métis TLU. Shell acknowledged however, that it had only incorporated Métis
TEK and TLU information and assessed the effects to Métis TLU indirectly in the EIA.
[1530] MNA provided evidence regarding historic and current Métis use of the general Project
area. Barb Hermansen, a Métis person and author of the book Barb Hermansen: Her Story,
provided an account of growing up on a trapline along the Athabasca River. Key areas of historic
and current use included areas along the Athabasca River, areas to the north of the Jackpine area
and north of McClelland Lake, and areas on the west side of the Athabasca River in the general
vicinity of the proposed compensation lake.
[1531] MNA also provided the Mark of the Métis study as evidence of land use in the Project
area. The Mark of the Métis study shows that in the vicinity of the Project, most of the use by the
Métis occurs on the north shore of McClelland Lake. MNA also indicated that its members use
the area along the Athabasca River from the oil sands region north to Fort Chipewyan.
[1532] Shell noted that the Mark of the Métis study indicated only one TLU site in the vicinity of
the Project, which was a moose hunting site.
[1533] MNA was concerned that Shell had not considered the historic use of traplines by the
Métis. MNA explained that traplines are often passed from one generation to another through
kinship ties. The traplines are also sometimes shared with family members, other Métis, or
members of First Nations.
[1534] Shell said that it used the TLU information collected and incorporated it into its EIA to
assess impacts to current land users, not historic users, and that this was consistent with the
practice used for EIAs. Shell stated that the information presented by MNA on historic use of the
area by the Métis is only relevant if the intent is to establish rights and this seemed to be
consistent with MNA’s concerns about the lack of a Métis consultation policy. Shell observed
that most of the current Métis use presented by MNA is considerably north of the Project area.
[1535] MNA explained that the Métis currently use the Project area south of McClelland Lake
for a variety of uses such as hunting, trapping, and gathering of plants. MNA stated that the area
is unique and the Métis cannot go just anywhere to collect plants, especially medicinal plants.
[1536] Shell stated that the maps in the Mark of the Métis study and other evidence filed by
MNA does not show significant activity to the south of McClelland Lake and in the Project area.
[1537] MNA said that Métis members would hunt in the oil sands area in the past but that
several of them had stopped using the oil sands area for TLU because of industrial activity.
MNA stated that the nearby Albian lease was an area where moose could be hunted in the past.
[1538] MNA said that there are still caribou in the Project area and around McClelland Lake as
some Métis persons saw several caribou in the area in autumn 2012.
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[1539] MNA indicated that the Métis have trouble accessing traditional use areas because, unlike
the First Nations, the Métis do not have agreements with the oil companies. The MNA stated that
a large number of the relatives of the Métis are members of a First Nation and use the same
areas. MNA stated that the Métis would like to be treated the same way as the First Nations.
[1540] MNA was concerned about air quality, specifically the emissions from oil sands plants
because members noticed black layers of snow around McClelland Lake. MNA members
believed that the air pollution generated from the oil sands industry is responsible for changes in
the number of birds in the region.
[1541] MNA was also concerned about the quality of surface water. MNA stated that its
members were once able to drink the surface water but due to concerns about contamination
there is a growing need to carry water when going on the land. There is a concern that all the
drinkable surface water will eventually be contaminated and this will be an impediment to Métis
land use.
Analysis and Findings
Rights Being Asserted
[1542] The Panel notes that a significant amount of the evidence submitted by MNA concerned
its historic, rather than current, use of the land. The Panel concludes that this was intended to
provide support for MNA’s assertion that it has constitutional rights derived from historic Métis
communities in the region.
[1543] The Panel is of the view that regulatory proceedings for individual projects are not the
appropriate forum in which to seek a confirmation of legal rights under the Constitution Act,
1982. These are complex legal issues that more properly belong before the courts.
[1544] The Agreement requires the Panel to consider the effects of the Project on asserted or
established Aboriginal and treaty rights, to the extent the Panel receives such information. The
Panel notes MNA’s assertion that the Métis have rights under s. 35(1) of the Constitution Act,
1982. The Panel has not made any determinations as to the validity of the Aboriginal or treaty
rights being asserted by MNA or the strength of such claims but for the purposes of assessing the
potential effects of the Project on MNA’s Aboriginal and treaty rights, the Panel accepts that
MNA has the rights being asserted.
Consultation
[1545] The Panel notes that Shell has good neighbour agreements with Métis Locals 125 and
1935 and consulted with these locals even though consultation requirements for Métis are not
addressed in Alberta’s First Nations Consultation Policy. The Panel notes that Shell met with
Métis Locals 125 and 1935 on numerous occasions since 2007 and believes that there have been
numerous opportunities for Locals 125 and 1935 to learn about the Project and to provide input
to Shell.
[1546] The Panel believes that the role of MNA with respect to representing the Métis Locals
has been unclear and in particular notes the July 23, 2012, letter from Métis Local 125 stating
that MNA does not act for it and that only Métis Local 125 can speak for its rights. While MNA
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provided some clarity about its role at the hearing, the Panel believes that Shell’s approach of
working directly with the Métis locals was appropriate based on the information it had at the
time.
[1547] The Panel believes that capacity is an issue that makes it difficult for the Métis locals to
provide detailed, project-specific TLU information for use in assessments and to effectively
participate in the review of projects such as this one. The Panel believes that Shell has been
responsive to requests from Métis locals for support for community-led TLU studies and other
initiatives. While Shell did not provide funding for project-specific TLU studies or technical
reviews, or core capacity funding, it appears that these requests were not made until shortly
before the hearing began. The Panel also notes that there is no requirement for individual
proponents such as Shell to provide core capacity funding and that MNA did not apply to the
Panel (as the ERCB) for an advance of local intervener costs.
[1548] Recognizing the lack of capacity within Métis Locals 125 and 1935, the Panel finds that
MNA provided very limited evidence of current Métis use of the immediate Project area. The
Panel, therefore, concludes that Shell’s approach to consultation with the Métis Locals was
reasonable and appropriate.
[1549] The Panel acknowledges the concerns of MNA and Métis Locals 125 and 1935 about
what they perceive as a lack of recognition of Métis rights and consultation by Alberta and
Canada concerning the Project and the cumulative impacts of oil sands development on Métis
land use and rights in the oil sands region. The Panel also acknowledges MNA’s concerns about
the absence of a Métis consultation policy and core capacity funding in Alberta.
[1550] The Panel believes that if government wants to streamline regulatory proceedings,
clarifying expectations and providing guidance with respect to Métis consultation would be
helpful. The regulatory process would be more efficient if interveners did not find it necessary
to advance their arguments related to Aboriginal rights and Crown consultation in the regulatory
proceedings for individual projects. The Panel, therefore, recommends that Alberta consider
developing a Métis consultation policy that outlines expectations and provides guidance with
respect to Métis consultation.
[1551] The Panel stated at the outset of the hearing that it would not rule on the adequacy of
Crown consultation as it did not have the jurisdiction to do so, and even if it did have the
jurisdiction, it would be premature to do so as there would be further opportunities for
consultation before Crown decisions are made or authorizations issues for the Project.
[1552] The Panel has included a recommendation that before other provincial and federal
approvals are issued, Alberta and Canada consider the adequacy of the Crown’s consultation
with Aboriginal groups, including Métis groups, in light of the issues identified in this report to
determine whether additional consultation by the Crown is necessary to address significant
adverse Project and cumulative effects to a number of resources important to Aboriginal people
and likely significant adverse cumulative effects on Aboriginal land use, rights, and culture.
Effects to Traditional Land Use, Rights, and Culture
[1553] The Panel finds that it is unclear how and to what extent Shell incorporated or considered
Métis TEK or TLU information in its assessment. Except for the information provided by Fort
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McKay that incorporates information provided by the Fort McKay Métis, Shell’s EIA makes few
specific references to Métis TEK or TLU information. Shell’s EIA and cultural assessment also
do not provide a specific assessment of the effects of the Project on Métis TLU or discuss
specific impacts on Métis Locals 1935 or 125. While the Panel accepts that TLU information
collected from First Nations may be somewhat representative of Métis TLU, the Panel believes
that a more explicit treatment of Métis TEK and TLU information and assessment of impacts on
Métis TLU and rights would have been helpful. The Panel understands, however, that some of
the Métis TLU studies were not available when Shell submitted its EIA in 2007 and have only
become available recently. In assessing the potential effects of the Project on Métis TLU, the
Panel has relied on the information provided by both Shell and MNA.
[1554] The Panel notes that the evidence presented by MNA shows significant historic use of the
Athabasca River, areas to the north of the Jackpine Project and north of McClelland Lake, and
areas to the west of the Athabasca River by Métis people. While Métis members represented by
MNA reported some current use of the immediate Project area including the area of the proposed
Redclay Compensation Lake, generally the Panel found that there was limited evidence of
current use of the immediate Project area. Most of the current Métis use occurs outside the
Project LSA on the north side of McClelland Lake and elsewhere in the RSA.
[1555] The Panel also notes that no traplines in the immediate Project area are currently held by
a Métis member represented by MNA. The Panel recognizes that traplines are often passed from
one generation to another through kinship ties and that this suggests the possibility that
ownership of traplines in the Project area could transfer to other Métis individuals in the future.
However, the Panel does not believe it is appropriate to base its findings on future events that are
highly uncertain.
[1556] The Panel, therefore, concludes that while the Project may result in adverse effects on the
TLU activities of some Métis individuals, the direct effects of the Project are unlikely to result in
significant adverse effects on Métis TLU or rights.
[1557] The Panel does note MNA’s concerns that it has trouble accessing areas for traditional
use because the Métis do not have agreements with industry. The Panel therefore recommends
that the Government of Alberta require Shell to offer to enter into access agreement discussions
with MNA and the Métis Locals to provide for Métis access to areas of TLU.
[1558] The Panel recognizes that the Project would occur within the general traditional use area
of some of the Métis represented by MNA. The Panel also acknowledges MNA’s concerns
regarding the cumulative impacts of the oil sands industry on water and air quality, wildlife, and
TLU activities of the Métis. The Panel notes that some of the Métis represented by MNA
provided evidence of avoidance of use in the vicinity of the Project. The Panel understands that
previous and ongoing oil sands activities in the area may have contributed to avoidance of use by
the Métis and may therefore account in part for the absence of current use in the vicinity of the
Project.
[1559] The Panel has determined that the Project in combination with other existing, approved,
and planned projects and activities, is likely to have a significant adverse cumulative effect on
some terrestrial resources important to Aboriginal groups, including wetlands, old-growth
forests, traditional plant potential, biodiversity, wetland- and old-growth-dependant species at
risk and migratory birds, and caribou. The Panel has also concluded that the Project is likely to
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result in significant adverse cumulative effects on Aboriginal TLU in the region surrounding the
Project. Even though there is limited evidence of current use in the Project area, the Panel
concludes that the Project is also likely to result in significant adverse cumulative effects on such
Métis TLU in the broader area surrounding the Project.
Non-Status Fort McMurray/Fort McKay First Nation (NSFMFM) and the Clearwater
River Paul Cree Band #175 (Clearwater Band)
Evidence
Participation and Requested Disposition
[1560] The participation of the NSFMFM and Clearwater Band in the review process and
hearing is discussed in the Participant Involvement in the Review Process section.
[1561] John Malcolm testified that he was the interim Chief of the NSFMFM and the Band
Manager of the Clearwater Band and was authorized to represent the NSFMFM and Clearwater
Band’s interests with respect to consultation and environmental assessment of the project.
[1562] The NSFMFM and Clearwater Band were concerned about the effects of the Project on
their TLU, culture, socioeconomic conditions, air quality, and traditional food. They were also
concerned about the recognition of their Aboriginal and treaty rights and the adequacy of
consultation by Shell, Alberta, and Canada. The NSFMFM and Clearwater Band asked the Panel
to recommend that the application not be approved until they have been adequately consulted on
their rights with respect to the Project and until their concerns regarding how the Project will
impact them are fully addressed.
[1563] The NSFMFM and Clearwater Band made several recommendations to the Panel.
Appendix 8 provides a summary of key NSFMFM and Clearwater Band recommendations.
Rights Being Asserted
[1564] The NSFMFM stated that it was comprised of over 600 members and that its members
are Cree and Chipewyan peoples whose ancestors have lived in and around the Athabasca region
and in the vicinity of the Project for thousands of years, from before the signing of Treaty No. 8
in 1899, until the present day. The NSFMFM testified that the Fort McKay Band emerged in or
about 1948 and was formerly part of the Fort McMurray Band. The NSFMFM asserted that the
members of the NSFMFM are not members of other existing bands recognized by the Crown as
Indian Bands within the meaning of the Indian Act but that nearly all of its members are entitled
to be registered as Indians under the Indian Act and each member of the NSFMFM has a
sufficient and substantial ancestral connection to Aboriginal persons that were listed on the Fort
McMurray and Fort McKay paylists as adherents to Treaty 8.
[1565] The NSFMFM indicated that its members currently live in Fort McMurray, Anzac, Fort
Chipewyan, and other communities in and around the Project area, where they have and continue
to fish, hunt, and conduct other traditional activities protected pursuant to Treaty 8 from before
its execution until the present day. The NSFMFM stated that in addition to carrying on hunting,
trapping, fishing, or gathering activities together, elders and members of the Band hold
ceremonies and conduct meetings to affirm the continued expression of the group and its rights.
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[1566] The Clearwater Band stated that its membership includes about 20 living members who
are the direct descendants of Paul Cree. The Clearwater Band asserted that its living members are
“Indians” that are registered or entitled to be registered under the Indian Act and that they hold
established rights under Treaty No.8 to hunt, fish, trap, and undertake other traditional activities
throughout Alberta, and specifically within their traditional territory and in the immediate
vicinity of the Project. The Clearwater Band indicated its members currently reside in
communities in the Athabasca region, including Fort Chipewyan and Anzac.
[1567] The NSFMFM and Clearwater Band asserted that they have rights under section 35(1) of
the Constitution Act, 1982 as well as Treaty 8 which provides for the protection of the Indians’
“usual vocations of hunting, trapping, and fishing” throughout the treaty territory. Both the
NSFMFM and Clearwater Band expressed concern that their Aboriginal and treaty rights will be
severely impacted by the direct and indirect effects of the Project.
Adequacy of Consultation by Shell
[1568] The NSFMFM and Clearwater Band stated that attempts to engage with Shell directly
about the Project were “fruitless.” Mr. Malcolm stated that attempts had been made to have
discussions with Shell, however, Shell had little interest in these discussions because it was not
required by the governments to consult with the nonstatus groups and therefore they were not
afforded the same consultation and accommodation treatment that the other Aboriginal groups
were. Mr. Malcolm stated that he did not like the way government and industry created divisions
between the different Aboriginal groups and treated them differently. Mr. Malcolm suggested
that his people “have been here all along” and as such should be consulted like other Indians. Mr.
Malcolm also stated that once the hearing was announced for the Project, Shell indicated that it
was willing to discuss only the PRM.
[1569] Mr. Malcolm indicated that to date Shell’s consultation had consisted only of Shell
providing information to him about the Project. Mr. Malcolm stated that the NSFMFM and
Clearwater Band lacked the capacity to meaningfully review this information and that despite
requests, Shell had not provided any capacity funding to the NSFMFM and Clearwater Band to
complete a technical review of the application. Mr. Malcolm further suggested that for
meaningful consultation to occur, funding for an IRC (Industry Relations Corporation) was
required.
[1570] Shell disagreed with Mr. Malcolm’s characterization of its consultation efforts with the
NSFMFM and Clearwater Band. Shell stated that notwithstanding that the groups represented by
Mr. Malcolm have been found by the federal and provincial governments to not have Aboriginal
rights that would be affected, Shell did consult with them. Shell stated that until quite recently
these groups had not raised any concerns about the Project. Shell stated that it had engaged with
the groups represented by Mr. Malcolm and this was evidenced by Shell’s letter to Mr. Malcolm
dated January 18, 2012, in which Shell agreed to a process for phased consultation and a
proposed scope of work prepared by a consultant working for Mr. Malcolm. Shell also stated it
would continue to consult the groups represented by Mr. Malcolm about both the Project and the
PRM after the Project hearing.
[1571] Shell responded that the criteria Shell used to establish the need for and scope of capacity
funding for the NSFMFM and Clearwater Band was the same criteria Shell used for other
Aboriginal groups. Shell stated that the identification of potential project-related impacts is
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required for funding and that Mr. Malcolm had only identified concerns with oil sands
development in general, as opposed to specific concerns related to the Project.
[1572] The NSFMFM and Clearwater Band expressed concern that Shell's EIA for the Project
does not mention the serious adverse effects the Project will have on the rights of the NSFMFM
and Clearwater Band. The NSFMFM and Clearwater Band argued that the EIA contains Shell's
view of the anticipated impacts on traditional knowledge and land use activities of First Nations
based on consultation with the FMFN and Métis, ACFN, MCFN, and to a lesser extent on
individual holders of RFMA. The NSFMFM and Clearwater Band expressed concern that the
EIA does not take into account the TEK of the NSFMFM or Clearwater Band, nor have the
environmental impacts on their traditional practices been considered.
[1573] The NSFMFM and Clearwater Band argued that they have suffered from the historic and
ongoing impacts of oil sands activity to an even greater extent than the Aboriginal groups
identified in the EIA due to the refusal of the Crown or industry to provide recognition,
consultation, accommodation, and impact-benefit agreements.
Adequacy of Consultation by the Crown
[1574] The NSFMFM and Clearwater Band expressed concern that neither Alberta or Canada
have consulted with the NSFMFM or Clearwater Band about the anticipated adverse impacts of
the Project or oil sands activity more generally on their established and asserted treaty rights.
According to the NSFMFM and Clearwater Band, their rights remain unrecognized and because
of this they remain marginalized and disenfranchised with respect to the environmental
assessment process.
[1575] On December 16, 2011, the NSFMFM and Clearwater Band wrote to the Governments of
Alberta and Canada outlining their concerns about the potential impact of the Project on their
asserted rights under section 35(1) of the Constitution Act, 1982. In this letter the NSFMFM and
Clearwater Band requested consultation with Crown decision makers and a preliminary
assessment by both Alberta and Canada of the strength of claim and severity of impacts on rights
for both of the groups, including a clear description of the evidence and reasons supporting its
conclusions. The letter also included a request for participant funding under the Agency’s
Aboriginal funding envelope for both the NSFMFM and Clearwater Band to facilitate
consultation and participation in the environmental assessment process.
[1576] Alberta responded to the NSFMFM and Clearwater Band in a letter from the Alberta
Department of Justice and Attorney General dated January 19, 2012. In its response, Alberta
confirmed that the NSFMFM and Clearwater Band were not recognized Indian Bands, and as
such, no duty to consult was owed to either group. The letter also stated that Shell had been
directed to consult with Fort McMurray #468 First Nation and the Fort McKay First Nation and
that members belonging to either one of these recognized Indian bands could raise their concerns
through the leadership of these bands.
[1577] Canada responded to the NSFMFM and Clearwater Band in a letter from the Agency’s
Crown consultation coordinator dated February 17, 2012. In its letter, Canada stated that based
on the information provided, neither the NSFMFM nor the Clearwater Band were an entity to
whom a duty to consult was owed. The letter stated that the NSFMFM and Clearwater Band
were not recognized historical collectives, distinct communities of individuals with collective
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treaty or Aboriginal rights, or bands under the Indian Act. The letter went on to state that even
though the NSFMFM and Clearwater Band were not entitled to consultation under section 35 of
the Constitution Act, 1982, they were not precluded from participating in the Panel process. The
letter indicated that both groups would have a significant opportunity to make their views
known, and to have their views meaningfully considered, by providing information directly to
the joint review panels convened by the Minister of the Environment and the Energy Resources
Conservation Board for the Shell Jackpine and Pierre River projects. The letter suggested that
through this participation the NSFMFM and Clearwater Band may express their views respecting
the potential impacts of the projects on their members' interests and to this end the Agency
awarded $83 990 under the public participation envelope to support the groups’ participation in
the Joint Review Panel process.
Effects on Traditional Land Use, Aboriginal Rights, and Culture
[1578] The NSFMFM and Clearwater Band stated that the Project is an area where their
members have and continue to hunt, fish, and gather pursuant to their Aboriginal and treaty
rights. The NSFMFM and Clearwater Band also stated that their members historically trapped in
the Project area in accordance with their trapline rights. They believe that their rights will be
severely restricted or destroyed by the Project and are concerned that impacts to their traditional
activities and rights have not been specifically considered in any of the Project studies or
consultation completed by Shell.
[1579] The NSFMFM and Clearwater Band provided some anecdotal evidence to support their
claims of historic and current traditional use of the Project area. John Malcolm stated that he
trapped in the Project area in the past and that his father continues to hunt in the Project area. The
NSFMFM reported that members hunted moose within the Project site area and that there are
still some moose although not as many as before. An elder recounted that some of his father’s
favourite moose hunting was on pine ridges and large stands of birch on the proposed Project site
and that other resources in the Project area included chickens (grouse), rabbits, blueberries, and
low-bush cranberries. The Clearwater Band asserted that a member of the Clearwater Band held
trapline number 1714 and that in the recent past, ACFN, Fort McKay, and the Clearwater Band
shared trapline 1714.
[1580] The NSFMFM stated that although RFMA licences provide the holder with the exclusive
right to trap within the RFMA, the lands encompassed by the RFMA license are traditional lands
and other users do not need the permission of the trapline holder to use it for hunting, harvesting,
or for other traditional uses. The NSFMFM argued that it was not appropriate to provide
compensation to the trapline holder as mitigation and then ignore the other traditional users.
[1581] The NSFMFM and Clearwater Band stated that preservation of fish, birds, and wildlife
habitat are crucial to the continued sustainability of their members’ ability to practice their
traditional activities. The NSFMFM and Clearwater Band expressed concern that the Project
would destroy old-growth forests and the populations of wildlife that depend on old-growth
forests.
[1582] Mr. Malcolm stated that woodland caribou play an important role in the traditional use
activities and culture of NSFMFM and Clearwater Band members. NSFMFM and Clearwater
Band members reported that caribou were more abundant 20 years ago than they are today but
based on observations of their members, caribou do still occur within the LSA. The NSFMFM
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and Clearwater Band reported that there are some sources of salty water on Shell’s lease and that
this salty water attracts caribou. NSFMFM and Clearwater Band members are of the opinion that
the sources of salty water are important to the animals and will be lost because of the Project.
The NSFMFM and Clearwater Band also believe that the muskeg within the Project site provides
an important calving area for caribou.
[1583] The NSFMFM and Clearwater Band were concerned that while woodland caribou are
listed federally under the SARA as threatened and are listed provincially under the Wildlife Act as
at risk, Shell’s EIA for the Project indicates that high value woodland caribou habitat will be
directly impacted by the Project if it is approved as proposed. The NSFMFM and Clearwater
Band are concerned that despite the importance of caribou to the traditional use and culture of
Aboriginal groups and the at risk status of caribou under both federal and provincial legislation,
caribou were not considered a key indicator resource in the EIA for the Project. The NSFMFM
and Clearwater Band also expressed concern about the lack of mitigation measures to avoid
significant adverse effects on caribou populations in Shell’s EIA. The NSFMFM and Clearwater
Band are concerned that without protection the caribou will decline to extinction and a resource
important to their members will be lost.
[1584] The NSFMFM and Clearwater Band believe that wildlife are stressed because of the
fragmentation and destruction of their habitat by seismic lines, noise, lights, vibration and
rumbling that can be felt at a distance of several kilometres. They were of the opinion that these
disturbances are now everywhere in the RMWB.
[1585] The NSFMFM and the Clearwater Band stated that because the Project area is already
disturbed and there are many people working in the area, hunting is considered unsafe and these
factors contribute to members avoiding the use of the area.
[1586] The NSFMFM and the Clearwater Band believed that muskeg supports the surrounding
ecosystem by acting as a water purifier, by controlling water redistribution in the ecosystem, and
by helping to control water temperatures in streams, rivers, and fish nurseries. They also believe
that muskeg is crucial for fish and fish habitat in the region as it acts as a fish nursery. The
NSFMFM and Clearwater Band are concerned that removing significant amounts of the muskeg
from the Project area will cause the loss of filtering, water retention, and thermal buffering
capacity and that the water temperature in the lakes and streams will rise. The NSFMFM and
Clearwater Band are concerned that a rise in water temperature may result in more outbreaks of
blue-green algae similar to the one that closed Willow Lake and that a change in temperature of
the Muskeg River caused by the removal of the muskeg will affect fish. The NSFMFM and
Clearwater Band are concerned that after reclamation, site drainage will not have a similar level
of attenuation from muskeg as it will rely more heavily on lake storage. They do not believe that
the implications of muskeg removal on water colour and temperature have been properly
incorporated into the ecological effects assessment in the EIA.
[1587] The NSFMFM raised concerns about surface water quality, indicating that in
preindustrial times its members could drink the water and melt ice from the Athabasca River to
use as drinking water but they could no longer do so due to concerns about contamination. They
also expressed concerns that EPLs may leak into the Athabasca River and contaminate the
aquifer.
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[1588] The NSFMFM and the Clearwater Band identified concerns regarding existing and future
wastewater discharges and seepage and the potential for these discharges and seepage to affect
aquatic species. In particular, Mr. Malcolm expressed concern that the Project would result in
additional sewage going to the Regional Municipality of Wood Buffalo’s sewage lagoon at Fort
McMurray, either by truck from work camps or through an increased population of workers
living in Fort McMurray. Mr. Malcolm expressed concern that this additional sewage could
result in increased loading of nutrients or contaminants to the receiving environment and that this
could affect aquatic species in the Athabasca River such as frogs and clams.
[1589] Shell stated that it noted an abundance of frogs in the Athabasca River and some toads.
Shell stated it was not aware of the existence of any studies on fresh water clams in the
Athabasca River and that Shell had not conducted any studies on clams.
[1590] NSFMFM stated that that the industrial activities in the Project area and in the oil sands
region generate odours and its members are concerned about the toxicity of the air. The
NSFMFM and Clearwater Band stated that while they use the lease area for their traditional
activities, it is not encouraged because of the fear of contamination of the traditional resources.
NSFMFM and Clearwater Band were of the opinion that the Project will add to the current
odours and toxicity of the surrounding environment.
[1591] The NSFMFM and Clearwater Band were concerned that the EIA does not examine in
any detail how the traditional practices of the NSFMFM and Clearwater Band have and will be
affected by the degradation of wildlife and fish habitat, diversity and abundance, by the rapid
decline of caribou and other species at risk and by the health and safety risks associated with
increased toxicity levels in the air, water and traditional resources. The NSFMFM and
Clearwater Band stated that by interfering with their TLU, the oil sands projects are contributing
to a loss of their culture and traditions.
[1592] Mr. Malcolm reported that he has read historical and archaeological reports on a
traditional resource called “pipestone.” Mr. Malcolm explained that pipestone is a general term
used to describe a type of mud and sandstone rock that is used to make ceremonial or peace
pipes. Mr. Malcolm stated that pipestone has been identified as a traditional cultural resource
important to his ancestors and is believed to occur in the Project area. NSFMFM and Clearwater
Band members are concerned that this resource has not been adequately studied and there is no
mention of pipestone in the EIA for the Project.
[1593] The NSFMFM and Clearwater Band identified a type of fungus that grows on diamond
willows and is reportedly found along river banks in the Project area. Mr. Malcolm stated that
the diamond willow fungus is used as incense and is a traditional resource with significant
ceremonial and medicinal purposes. The NSFMFM and Clearwater Band expressed concern that
this resource was not mentioned in the EIA and they would like to harvest the diamond willow
fungus in the Project area before it is cleared should the Project be approved.
[1594] According to the NSFMFM and Clearwater Band, there may be some undiscovered mass
grave sites along the Athabasca River near Fort Hills, not far from Shell’s lease or Poplar Point,
resulting from the 1916–1918 influenza epidemic. The NSFMFM and Clearwater Band believe
that that the gravesites may contain the remains of their ancestors and expressed concern that the
potential for mass graves were not addressed in the EIA for the Project and that proper
archaeological studies have not been done on these resources.
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[1595] The NSFMFM and Clearwater Band were concerned that Cree Burn Lake was located on
the Jackpine lease site and may be destroyed by the Project. The NSFMFM and Clearwater Band
stated that they would like the Pierre-au-Calumet, the Quarry of the Ancestors, and the Cree
Burn Lake sites protected.
[1596] Shell confirmed that the Cree Burn Lake and its associated gravesites are not within the
Project mine site.
[1597] The NSFMFM and Clearwater Band stated that housing prices in Fort McMurray have
risen extremely high and that there is no affordable housing available in the area. Mr. Malcolm
stated that housing pressures in the Fort McMurray area are leading to homelessness and are
destroying the ability of Aboriginal people to continue to live in the area. The NSFMFM and
Clearwater Band believe that the Project will further increase pressures on the cost and
availability of housing and this may result in members of these groups being forced from their
residences and from their traditional lands. The NSFMFM and Clearwater Band suggested that
there has not been sufficient accounting or follow-up studies on whether donations to the
community by Shell to address the homeless problem have been successful.
Analysis and Findings
Rights Being Asserted
[1598] The Panel notes the assertion of the NSFMFM and Clearwater Band that they have rights
under section 35(1) of the Constitution Act, 1982 and Treaty 8 and are therefore owed a duty of
consultation by the Crown. The Panel also recognizes that some of the evidence and argument
provided by the NSFMFM and Clearwater Band during the hearing was intended to support their
assertion of constitutional rights.
[1599] Alberta and Canada have both provided submissions that clarify their position that the
NSFMFM and Clearwater Band are not recognized bands under the Indian Act and that as such,
are not owed a duty of consultation by the Crown. The Panel also notes that Mr. Malcolm has
participated in numerous previous regulatory proceedings for oil sands projects on behalf of
similar groups, seeking recognition of the groups’ rights claims.
[1600] Pursuant to paragraph 6.3 of the TOR, the Panel is not required to make any
determinations as to the validity of Aboriginal or treaty rights or the strength of such claims. The
Panel has however, considered the effects of the Project on the TLU and activities of the
NSFMFM and Clearwater Band.
Consultation
[1601] The Panel believes that Shell’s approach to consultation with Mr. Malcolm and the
members of the NSFMFM and Clearwater Band was appropriate in the circumstances. Although
Alberta and Canada both found that the NSFMFM and Clearwater Band were not recognized
bands under the Indian Act and consequently did not have rights that would be affected by the
Project, Shell made efforts to engage with these groups. It is apparent from the evidence that
Shell provided information about the Project to Mr. Malcolm and there were numerous
exchanges and opportunities for Mr. Malcolm and the members of the NSFMFM and Clearwater
Band to learn about the Project and to identify potential concerns.
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[1602] Although Shell did not provide capacity funding to either the NSFMFM or Clearwater
Band, there is no legal requirement for them to do so and the Panel accepts Shell’s argument that
for project-specific funding to be provided, there needs to be some credible expectation that the
rights of the group could be affected by the project.
Effects on Traditional Land Use, Rights, and Culture
[1603] The Panel notes that Shell did not specifically assess the effect of the Project on the TLU
and activities of the NSFMFM or Clearwater Band in the EIA for the Project.
[1604] The Panel agrees with the NSFMFM and Clearwater Band that providing compensation
to the trapline holders without considering the land use of other traditional users may not
adequately mitigate or compensate for other losses of traditional use.
[1605] The Panel found that while the NSFMFM and the Clearwater Band provided evidence
that some of their members have and continue to use the Project area for some of their traditional
activities, the information presented on historic and current use of the Project area was quite
limited and largely anecdotal. Additionally, the Panel found that the NSFMFM and Clearwater
Band provided little evidence that the traditional activities currently exercised in the Project area,
such as moose hunting or gathering of cranberries or blueberries, could not be practiced outside
the Project area.
[1606] The Panel notes that while the NSFMFM and Clearwater Band expressed concern about
the potential impacts of the Project on pipestone, they did not present any evidence to indicate
that the specific type of mud and sandstone known as pipestone is particularly rare or only occurs
in the Project area. Furthermore, the NSFMFM and Clearwater Band did not provide any
evidence to suggest that access to deposits of pipestone were currently limited or continued to be
important for the practice of traditional activities and culture of its members.
[1607] The Panel also notes that while NSFMFM and Clearwater Band identified the importance
of willow fungus to it members, they did not provide any evidence that diamond willow fungus
is particularly rare or restricted to the Project area. Furthermore, the Panel believes that there will
be time to collect diamond willow in advance of operations should the Project be approved,
considering that mining along the Muskeg River and some tributaries will not occur for many
years.
[1608] The Panel notes that the Pierre-au-Calumet, Quarry of the Ancestors, and the Cree Burn
Lake sites are not located within or immediately adjacent to the Project footprint and will not be
disturbed by the Project.
[1609] The Panel notes the concerns of the NSFMFM and Clearwater Band about the potential
effects of the Project on wildlife and fish habitat, diversity, and abundance and the particular
importance of caribou to the NSFMFM and Clearwater Band members. The Panel also
acknowledges the concerns expressed about the regional cumulative effects of the oil sands
industry on wildlife habitat disturbance and wildlife diversity. The Panel concluded that Project
effects are likely to result in significant adverse effects to wetlands, traditional plant potential,
biodiversity, and wetland-reliant species at risk and migratory birds. The Panel also concluded
that the Project, in combination with other existing, approved, and planned projects is likely to
result in significant adverse cumulative effects to wetlands, old-growth forests, traditional plant
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potential, biodiversity, and wetland and old-growth-reliant migratory birds and species at risk,
including caribou. However, the Panel concluded that the Project, alone and in combination with
other projects, was not likely to result in significant adverse Project or cumulative effects to
aquatic resources given the mitigation proposed by Shell.
[1610] The Panel also notes the concerns of the NSFMFM and Clearwater Band about the
effects of the Project on air and water quality and the potential contamination of traditional
resources. The Panel concluded that the Project, alone and in combination with other existing,
approved, and planned projects was not likely to result in significant adverse effects to air quality
or human health. The Panel notes that in its EIA, Shell considered the effects of Project, alone
and in combination with other existing and approved projects on a range of surface water quality
parameters including temperature, DO, and sediment quality and concluded that the effects
would be negligible. Shell predicted that muskeg and overburden drainage from the Project
would not have a significant affect on DO levels or temperature in receiving streams. The Panel
concluded that with the implementation of Shell’s proposed mitigation measures and
commitments, the work being developed on the Joint Canada-Alberta Implementation Plan for
Oil Sands Monitoring by federal and provincial governments, and the Panel’s expectations and
recommendations, it is unlikely that significant adverse environmental effects would occur to
surface water quality or aquatic health in the Muskeg River, Athabasca River or the PAD.
[1611] Based on the evidence presented by the NSFMFM and Clearwater Band, the Panel
recognizes that the Project may result in some impacts to the TLU activities of certain NSFMFM
and Clearwater Band members. However, based on the limited information on current TLU
provided, the Panel does not believe that the Project will have a widespread or significant effect
on the TLU activities of NSFMFM and Clearwater Band members. Similarly, the Panel does not
believe that the Project will have a significant adverse effect on any unique cultural sites or
resources important to NSFMFM and Clearwater Band members.
[1612] The Panel has concluded however that the Project, in combination with other existing,
approved, and planned projects and activities is likely to result in significant adverse cumulative
effects to several terrestrial resources important to TLU activities and, therefore, the Project is
also likely to result in significant adverse cumulative effects to TLU activities and Aboriginal
and treaty rights. The Panel believes it is reasonable to conclude that NSFMFM and Clearwater
Band members who practice TLU activities may also experience significant adverse cumulative
effects to these activities. However, the Panel found that the NSFMFM and Clearwater Band
provided only very general information (such as avoidance of some areas or resources) on how
these perceived cumulative effects were affecting the traditional use activities of their members.
For this reason, the Panel is not able to conclude that these regional cumulative effects are
having a significant adverse effect on the TLU of the NSFMFM and Clearwater Band members.
At the same time, the Panel understands that the inability of the NSFMFM and Clearwater Band
members to clearly demonstrate where and how they practice their TLU activities and how they
may be affected by the cumulative effects of development in the region may be due at least in
part, due to a lack of capacity to compile such information.
[1613] Furthermore, the Panel believes that ensuring there is a range of housing options in the
community that meets the needs of residents with differing income levels is a shared
responsibility between the various levels of government. The role of industry is to provide the
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taxes and royalties though which governments can discharge their obligations, to assist in the
necessary planning, and to mitigate the impacts of its projects.
Fort McMurray #468 First Nation (FMMFN #468)
Evidence
Participation and Requested Disposition
[1614] FMMFN #468’s participation in the review process and hearing is discussed in the
Participant Involvement in the Review Process section.
[1615] Shell noted that it could not test FMMFM #468’s evidence because FMMFM #468 did
not sit a witness panel. Shell also questioned why FMMFN #468 did not sit a witness panel while
the hearing was in Fort McMurray suggesting that it would not have required much effort.
[1616] In final argument, FMMFN #468 stated that it did not seat a witness panel due to the
costs of doing so and that it had done what it could with its very limited resources to assert its
rights. FMMFN #468 acknowledged that its evidence was untested but argued that the Panel
should still give it some weight. FMMFN #468 submitted that even though the evidence in its
recently completed TLU study was untested, there are elements of it that were still reliable.
FMMFN #468 argued that it was Shell’s and the Panel’s obligation to consider the impacts to
those rights.
[1617] FMMFN#468 made several recommendations to the Panel. A list of these
recommendations is provided in Appendix 8.
Rights Being Asserted
[1618] FMMFN #468 asserted that the community that is today known as FMMFN #468 traces
its origins back to the Cree-Chipewyan Band of Fort McMurray that originally signed Treaty 8
on August 4, 1899. FMMFN #468 indicated that FMMFN #468 and the Fort McKay First Nation
were originally part of the same band until 1942. FMMFN #468 stated that the family groups
that were to become and remain part of FMMFN #468 were people living along the Clearwater
River, families staying around Willow Lake (now known as Gregoire Lake; also known as the
area around Anzac), and a family group around Cheecham Lake.
[1619] FMMFN #468 stated that its current reserve locations reflected its diverse heritage and
history on the land. The Clearwater Reserve (#175) is located at the forks of the Christina and
Clearwater Rivers and is also known as the Paul Cree Band Reserve. Three other reserves were
established – reserves 176, 176a, and 176b, on the south and northeast shores of Willow Lake
near Anzac. FMMFN #468 stated that a fifth reserve, called the Alexis Reserve, located along
the Clearwater River due east of Gordon Lake, is known to FMMFN #468 but does not appear to
have been included in the government’s records.
[1620] FMMFN #468 asserted that its traditional territory constituted a large area in northern
Alberta that included the areas where Shell intended to construct and operate the Project. FMMFN
#468 asserted that it has Aboriginal and treaty rights in the area affected by the Project and that its
livelihood rights, including the right to traditional hunting, fishing, trapping, and gathering, as
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well as the right to access traditional territories and the right to environmental quality sufficient
to sustain its traditional livelihood, are protected by s.35(1) of the Constitution Act, the Natural
Resources Transfer Agreement and Treaty 8.
Adequacy of Consultation - by Shell
[1621] FMMFN #468 expressed concern that the EIA for the Project completely lacked information
with respect to the effect that the Project will have on FMMFN #468. FMMFN #468 stated that the
EIA did not delineate its traditional territory and harvesting uses, discuss potential impacts of the
Project on its traditional uses, or propose any mitigation with respect to specific impacts on it.
[1622] FMMFN #468 stated that the lack of information regarding the effect the Project would have
on it stemmed from a lack of consultation by Shell. Furthermore, FMMFN #468 believed that Shell
based its approach to consultation on a cursory review of the publicly available report, Nistawayaw,
Where Three Rivers Meet, Fort McMurray #468 First Nation, Traditional Land Use Study (2006)
(the “2006 Report”) and that Shell had incorrectly interpreted and applied the contents of the report.
[1623] Shell stated that it determined its approach to consultation with different groups by the
possibility of Project impacts on those groups. Shell confirmed that it had reviewed The 2006
Report and that this was a factor in its assessment of the potential for project effects on FMMFN
#468. Shell noted that the report, prepared by FMMFN #468, was one of the few reports
available on FMMFN #468 TLU activities at the time. Based on its review of the report, Shell
observed that the Project was located in the extreme northern part of FMMFN #468’s traditional
territory and believed that there was little potential for the Project to adversely affect the TLU
activities of FMMFN #468 and its members. Notwithstanding its belief that the Project would
not have any significant effects on FMMFN #468, Shell stated that it informed FMMFN #468
that if it had any more specific information about TLU activities in the project area, it could
provide this information to Shell. Shell stated that until quite recently, it had not received any
further information and that it was the little evidence of direct use of the Project area that was
available that guided Shell’s approach to consultation with FMMFN #468.
[1624] FMMFN #468 stated that it produced The 2006 Report in the context of another project
further south and that Shell should not have used it to evaluate the extent of FMMFN #468 land
use in the Project area. FMMFN #468 explained that it provided The 2006 Report to Shell as a
preliminary document in order to request funding from Shell for a project-specific TLU study.
[1625] FMMFN #468 also expressed concern that Shell had not provided it with funding for a
third-party technical review of the application materials for the Project, despite FMMFN #468
identifying this as a need in its October 2008 Statement of Concern about the Project. FMMFN
#468 indicated that it had limited internal capacity to review and understand detailed technical
materials and that it required funding for such a review to allow it to better understand the
potential impacts of the Project on its TLU activities and Aboriginal and treaty rights. FMMFN
#468 said that Shell’s failure to provide it with capacity funding represented a low water mark
for Aboriginal groups.
[1626] Shell confirmed that it did not fund any technical review studies for FMMFN #468
because it did not believe that there was potential for the Project to affect the exercise of
FMMFN #468’s Aboriginal and treaty rights. Shell did note however that FMMFN #468 had
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received $ 77 000 in funding from CEAA for participation in the review of the Project and the
PRM.
[1627] Shell stated that it contributed to FMMFN #468’s 2006 TLU study and has pursued
consultation with FMMFN #468 since 2007 in order to better inform its assessment of impacts.
Shell indicated that it had reviewed other information including the maps received from FMMFN
#468 in 2011 but that this data did not show any significant TLU activity in the Project area.
Adequacy of Consultation - by the Crown
[1628] In its October 1, 2012 NQCL, FMMFN #468 asserted that the Crown had not adequately
consulted with or accommodated FMMFN #468 with respect to the potential impacts of the Project
on its members’ harvesting rights or practices in the following ways.
a) Shell and the Crown did not adequately consider FMMFN #468’s traditional
knowledge or fully identify the scope of FMMFN #468 harvesting rights and
culturally important species in the Project area.
b) Shell and the Crown failed to adequately identify impacts caused by the Project on
FMMFN #468’s culturally important wildlife species and plants in the Project area
and impacts on FMMFN harvesting rights.
c) The Crown failed to adequately consult with FMMFN #468 with respect to impacts
caused by the Project on culturally important wildlife species and plants in the Project
area and in FMMFN #468’s traditional territory, or consult with respect to impacts on
FMMFN harvesting rights in those areas.
d) The Crown failed to adequately consult with the FMMFN with respect to overall and
cumulative impacts of the Project and other projects in FMMFN #468’s traditional
territory.
e) Shell and the Crown did not modify the development of the Project or otherwise
eliminate, mitigate or accommodate impacts on traditional harvesting rights of
FMMFN #468 in the Project area.
[1629] In its NQCL, FMMFN #468 asserted that the Crown had a legally enforceable duty to
consult with and accommodate FMMFN #468 where existing and claimed rights under Treaty 8
and Aboriginal rights may be affected, including the rights to hunt, gather, trap, and fish.
FMMFN #468 asserted that the actions of the Crown would have a significant impact on the
ability of the FMMFN #468's members to continue to exercise their constitutionally protected
harvesting rights and that any decision by the Crown that interferes with the method, timing, or
extent of FMMFN #468's harvesting rights constitutes a prima facie infringement of such rights
and may violate section 35 of the Constitution Act, 1982. FMMFN #468 asserted that if the
Crown approves the Project, this will likely result in a large scale destruction of the Project area
thereby significantly interfering with the FMMFN #468's right to harvest in its traditional
territories. In these circumstances, the decision of the Crown must be justified in accordance with
the principles enunciated in R. v. Sparrow, [1990] 1 S.C.R. 1075.
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Effects on Traditional Land Use, Rights, and Culture
[1630] FMMFN #468 raised several concerns about the methodology Shell used to complete the
EIA. FMMFN #468 argued that the selection and use of the LSA was inappropriate given the
size of the Project footprint. FMMFN #468 stated that Shell should have used a larger LSA and
that the significance of project effects should also have been considered at the LSA level.
FMMFN #468 also argued that the RSA was too large as it was originally established to
encompass two projects and was therefore inappropriate for one project. FMMFN #468 noted
that the RSA for the Project was twice as large as that used for the Kearl project even though the
Kearl project was bigger, in terms of the volume of bitumen produced.
[1631] FMMFN #468 argued that Shell had failed to appropriately consider ecological context
when assessing effects to both terrestrial resources and Aboriginal and treaty rights. FMMFN
#468 stated that ecological context is required in the consideration of the size of the footprint and
the amount of other disturbance in the area. FMMFN #468 noted that there were already many
active mines in the Project area and that these mines were already limiting access to areas
previously used for TLU practices. FMMFN #468 stated that the appropriate ecological context
for the Project was one of heavy industrial development. It also said that Aboriginal use of the
area was “fragile” due to this development and Shell did not discuss this in a significant way in
the EIA.
[1632] FMMFN #468 stated that the Panel should consider the effects of the Project before
reclamation because reclamation will not occur for a long time and the results of reclamation are
uncertain.
[1633] Shell stated that FMMFN #468 did not provide evidence of significant use in the Project
area and as a result, Shell did not believe that there was a potential for the Project to affect the
TLU of FMMFN #468 members.
[1634] FMMFN #468 stated that its members practiced TLU activities and Aboriginal rights
very close to, if not within, the LSA and RSA. FMMFN #468 argued that contrary to Shell’s
predictions, the Project will result in significant adverse effects to current traditional use and
Aboriginal rights in both the LSA and RSA. FMMFN #468 stated that traditional use is an
evolving issue. Land use changes over time as resources change and as some areas become
unavailable, for example due to mining, other areas are used.
[1635] FMMFN #468 submitted a report on TLU and activities entitled Cumulative Impacts to
FMMFN #468 Traditional Lands and Lifeways (TLL Report). The report is a compilation and
analysis of previous studies and work related to FMMFN #468 TLU, completed in September
2012. According to FMMFN #468, the TLL Report describes some of its land use in a regional
disturbance study area (RDSA) and in a smaller focused disturbance study area (FDSA). The
FDSA was centered on the confluence of the Steepbank and Athabasca Rivers and extended 150
km from west to east and 215 km from south to north. The FDSA includes an area close to
FMMFN #468’s reserves near Gregoire Lake, along the Clearwater River and downstream along
the Athabasca River. The southernmost extension of the FDSA is located 40 km south of the
FMMFN #468’s reserve at Gregoire Lake and extends north to Poplar Point on the Athabasca
River. FMMFN #468 described the RDSA as based on a broad generalization of FMMFN #468
traditional lands extending from the North Saskatchewan River in the south to the Firebag River
to the north.
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[1636] FMMFN #468 stated that wildlife and plant populations were an important part of the
First Nation’s culture and traditional economy and that Phase 1 had negatively affected and will
negatively affect culturally important wildlife and plant populations and the ability of the
FMMFN #468 members to conduct traditional harvesting activities in the Project area.
[1637] FMMFN #468 provided sworn affidavits from two FMMFN #468 members who reported
that they had regularly practiced and continue to regularly practice TLU activities on and in the
vicinity of the Project footprint, including hunting, fishing, and gathering. Species reported to
have been hunted in the area included birds (including but not limited to grouse), moose, wolves,
buffalo, caribou, lynx, fox, beaver, muskrat, squirrel, weasel, and otter. The members reported
fishing for whitefish, pickerel, jackfish, and suckers. The members reported gathering
blueberries, high bush cranberries, low bush cranberries, Saskatoon berries, raspberries,
gooseberries, chokecherries, and traditional medicines, including but not limited to roots,
sweetgrass, and bark. In their affidavits, the two members expressed concern that the construction
and operation of the Project would further affect wildlife populations in the area and that the Project
would occupy lands to which they previously had a right of access. The members also expressed
concern that ongoing development adjacent to the Project area would affect their ability to harvest
plants and wildlife and would further restrict the area in which they can exercise their treaty rights to
hunt, fish, trap, and gather.
[1638] The TLL Report identified the following specific FMMFN #468 uses in the general
Project area:
•
Two cabins 20 to 30 kilometres south of the JPME area
•
One site of cultural importance south of Fort McKay
•
Big game harvesting sites north and west of McClelland Lake, north of the Project area and
near the PRM footprint
•
Bird harvesting sites between Kearl and McClelland Lakes, close to the Project and alongside
the Athabasca River and the PRM project.
[1639] FMMFN #468 submitted some of the preliminary TLU maps developed for the TLL
Report to Shell and the Panel in late 2011. FMMFN #468 said that the affidavits, The 2006
Report, and TLL Report represented only a limited selection of the traditional use that has
occurred and continues to occur in the Project area. FMMFN #468 expressed concern that even
though the TLU information and affidavits provided by it demonstrated use in the Project area,
Shell did not consider this use to be significant.
[1640] FMMFN #468 said that the Project will make some land unavailable for traditional use
and restrict access to other areas.
[1641] Shell stated that all of the rights holders will be escorted across its lease in order to access
their traditional lands.
[1642] Shell stated that based on the information that it received to date from FMMFN #468,
there was little evidence of FMMFN #468 use in the Project area and as a consequence, there
was no potential for the Project to significantly affect the TLU of FMMFN #468.
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[1643] FMMFN #468 stated that existing cumulative impacts on the exercise of Aboriginal and
treaty rights were already significant. It believed that its members were being increasingly
alienated from the use of their traditional lands and food due to the removal of traditional areas
by oil and gas development, forestry, municipal expansion, competing recreational uses, access
barriers, protected areas, and government game and firearm regulations.
[1644] The TLL Report identified the concerns of FMMFN #468 members related to the
encroachment of oil sands development on their traditional territory and the associated
cumulative effects. Specific concerns included the cumulative effects of oil sands and other
activities on air quality, water quantity and quality, the quality of traditional foods, and changes
in animals. FMMFN #468 also raised concerns about changes in recreational use of the land
resulting from increased access and population growth and changes in government regulations
that have affected TLU activities. In the report, some FMMFN #468 members described the
associated cumulative effects as “overwhelming”.
[1645] The information and analysis in the TLL Report was based on an RDSA that represented
the area of TLU by the FMMFN #468. The RDSA included the Project area and extended south
to the North Saskatchewan River. The report stated that this RDSA was selected and used in
order to assess cumulative disturbance from projects that were already in existence as of 2006.
Based on the analysis conducted, the report concluded that the traditional territory of the
FMMFN #468 was already significantly disturbed and fragmented in 2006.
[1646] FMMFN #468 members noted declines in abundance of both moose and migratory birds.
FMMFN #468 members reported that the moose population was now one quarter or one half of
what it was 20 years ago and attributed this decline to the development of the oil industry. They
also reported a decline in the number of migratory birds in the Willow Lake area. In the TLL
Report, FMMFN #468 members reported changes that they have observed in several fish and
animals such as meat discoloration, changes in the taste of moose meat, tumours, and abnormal
looking organs. FMMFN #468 members also reported behavioural changes in some animals.
[1647] FMMFN #468 members indicated that berries were not as abundant as they once were
because of the cumulative effects of industrial development.
[1648] Several FMMFN #468 members stated that they have to travel further to obtain safe and
clean traditional resources. Some FMMFN #468 members reported that they stopped eating
traditional food gathered in the vicinity of their community about 10 years ago because of the
fear of contamination.
[1649] FMMFN #468 members reported that since the 1970s, the colour and taste of water from
the Clearwater River and from several lakes has changed and they consider that Gregoire Lake is
no longer a safe source of drinking water. FMMFN #468 members stated that they believe that
they have lost their supply of drinkable surface water because of fear of contamination and that
this loss has detrimental affects on their land use.
[1650] FMMFN #468 members stated that they noticed a decline in air quality approximately 10
years ago and believed that the poor air quality contributes to water contamination.
[1651] FMMFN #468 members reported that the water flow in the Athabasca River was less
than the minimum required to support the exercise of their treaty and Aboriginal rights.
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[1652] FMMFN #468 noted that Shell did not perform an analysis of the economic impacts of
delaying the Project for a period of time. FMMFN #468 argued that in order to prevent
significant adverse environmental effects to terrestrial resources and TLU, the Panel should
recommend that the Project be delayed for a period of 10 years. FMMFN #468 argued that there
would be environmental benefits from delaying the Project given the pace of development of the
oil sands industry. FMMFN #468 also said that current economic conditions justify such a delay.
[1653] FMMFN #468 stated that if the Project is approved, any approval should include a
condition requiring Shell to consult with FMMFN #468 and conduct a project-specific traditional
use study. FMMFN #468 argued that it produced The 2006 Report in the context of another
project further south and the report was not an accurate description of FMMFN #468’s TLU in
the Project area.
Analysis and Findings
Participation
[1654] The Panel notes that FMMFN #468 did not sit a witness panel to speak to its evidence,
and therefore, their evidence could not be tested through questioning by Shell or the Panel.
Although the Panel has made some use of FMMFN #468’s evidence to determine the potential
for the Project to affect FMMFN #468’s TLU and Aboriginal and treaty rights, the Panel finds
that it is not able to give the evidence much weight. This is particularly true for FMMFN #468’s
evidence regarding its current use of lands and resources in the vicinity of the Project.
[1655] The Panel recognizes that FMMFN #468 has limited resources with which to participate
in proceedings such as the hearing for the Project but believes it is unfortunate that the two
individuals who provided affidavits related to their traditional use activities in the vicinity of the
Project or other FMMFN #468 members were not presented as witnesses during the hearing. The
Panel believes that this would not have significantly increased the cost of FMMFN #468’s
participation in the hearing, and may have provided the Panel with additional information on
FMMFN #468’s use of the Project area.
Rights Being Asserted
[1656] The Agreement requires the Panel to consider the effects of the Project on asserted or
established Aboriginal and treaty rights, to the extent the Panel receives such information. The
Panel has not made any determinations as to the validity of the Aboriginal or treaty rights being
asserted by ACFN or the strength of such claims but for the purposes of assessing the potential
effects of the Project on FMMFN #468’s Aboriginal and treaty rights, the Panel accepts that
FMMFN #468 has the rights being asserted.
Consultation
[1657] The Panel accepts Shell’s view that the degree of consultation required by project
proponents should be guided by the potential for a project to result in adverse effects to a
particular individual or group, including First Nations and other Aboriginal groups.
[1658] Based on the evidence provided by FMMFN #468 about the TLU activities of its
members, the Panel believes that Shell’s approach to consultation with FMMFN #468 was
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appropriate. The evidence does not support the claim that the Project area is used in a significant
way by FMMFN #468 members for the practice of TLU or Aboriginal and treaty rights. The
Panel, therefore, believes that it was reasonable for Shell to conclude that the Project would not
likely have a significant effect on the traditional use or Aboriginal and treaty rights of FMMFN
#468 and to tailor its consultation efforts with FMMFN #468 accordingly. The Panel notes that
Shell told FMMFN #468 that if it had additional information about the use of the Project area by
its members, it could provide this information to Shell. The Panel believes that this invited
FMMFN #468 to provide additional information to support its request for additional
consultation.
[1659] While FMMFN #468 did subsequently provide affidavits from two individuals who
appear to continue to use the Project area for traditional purposes, the Panel notes that it did not
provide these affidavits until late 2011, more than four years after the EIA process and associated
consultation for the Project was initiated. Similarly, preliminary maps prepared by FMMFN
#468 were not available until late 2011 and the final TLU report was not completed until 2012.
[1660] The Panel believes that Shell made reasonable efforts to consult with FMMFN #468 in
order to understand its TLU activities in the area and that there were numerous opportunities for
FMMFN #468 to makes their concerns known to Shell and to provide information.
[1661] The Panel acknowledges that FMMFN #468 has limited capacity to complete a detailed
technical review of the application materials and that Shell did not provide funding for such a
technical review. While the Panel understands that this may have made it more difficult for
FMMFN #468 to assess the potential for the Project to effects to their TLU and Aboriginal and
treaty rights, the Panel does not believe the absence of specialized resources to conduct technical
reviews precluded FMMFN #468 from identifying potential impacts to its TLU or rights.
Effects on Traditional Land Use, Aboriginal Rights, and Culture
[1662] The Panel agrees with FMMFN #468’s observations made about the size of the LSA and
RSA used by Shell for the assessment of project effects, the need to determine significance at the
LSA as well as RSA levels, and the manner in which Shell considered ecological context in the
EIA. The Panel also notes that Shell did not provide an assessment of the effects of the Project
on the TLU and culture of each First Nation or Aboriginal group as requested by the Panel. For
this reason, the Panel has not relied on the significance determinations provided by Shell in the
EIA and has made its own significance determinations based on a consideration of these issues
and the evidence provided by all parties.
[1663] For the purposes of assessing the potential impacts of the Project on TLU, Aboriginal and
treaty rights, and culture of FMMFN #468, the Panel notes that the Project is located within an
area that FMMFN #468 has identified as its traditional territory. The Panel also accepts that
members of FMMFN #468 have practiced and may continue to practice TLU activities, their
Aboriginal and treaty rights, and culture within the traditional territory identified.
[1664] The Panel notes, however, that the Project is proposed to be located near the northern
extent of the traditional territory identified by FMMFN #468 and that the evidence of TLU
activity by FMMFN #468 members in the immediate area of the Project is quite limited. The
majority of traditional use reported in the TLL Report occurs some distance to the south of the
Project, particularly to the east and north-east of Fort McMurray and in the vicinity of the
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Clearwater River and Gregoire Lake. Although FMMFN #468 reported some traditional use
activities further north, it reported limited use within or immediately adjacent to the Project
footprint. Most of the use that is reported in the vicinity of the Project occurs west of the Project
area along the Athabasca River and north and west of McClelland Lake in areas which are not
expected to be directly affected by the Project. The Panel also notes that the authors of the report
did not appear at the hearing so the evidence in the report could not be tested by Shell or the
Panel.
[1665] The Panel notes the affidavits of two FMMFN #468 members reporting that they have
conducted and continue to conduct TLU activities and exercise their Aboriginal and treaty rights
within or very close to the Project footprint. The Panel also notes that the two FMMFN #468
members who provided affidavits did not appear as witnesses at the hearing and consequently
their evidence could not be tested by Shell or the Panel. Although the affidavits suggest some
FMMFN #468 members may have exercised or continue to exercise their Aboriginal and treaty
rights in the Project area, the Panel is not able to give any real weight to this untested evidence
where it is at odds with other evidence that was able to be tested in the hearing. Additionally,
FMMFN #468 did not provide any other community witnesses to support FMMFN #468’s claim
that the Project area has been and continues to be an important area for the exercise of FMMFN
#468’s TLU, Aboriginal and treaty rights, and culture.
[1666] Therefore, while the Panel acknowledges that some FMMFN #468 members may
continue to use the Project area for the exercise of their Aboriginal and treaty rights and that
these activities could potentially be effected by the Project, FMMFN #468 did not provide
sufficient evidence to demonstrate significant and ongoing traditional use of the Project area by
FMMFN #468 members. The Panel therefore finds that the Project is unlikely to have a
significant adverse effect on the TLU or Aboriginal and treaty rights of FMMFN #468.
[1667] The Panel notes that the TLL Report includes an assessment of cumulative effects for
both the RSDA and FDSA areas. However, the Panel notes that the RSDA and FDSA areas are
not directly comparable to the RSAs used by Shell as they include a significant area south of Fort
McMurray. Additionally, as FMMFN #468 did not present the authors of the report as witnesses,
neither Shell nor the Panel was able to ask questions about the study’s methodology or results.
As a result, the Panel was not able to place much weight on the evidence in the TLL Report.
[1668] The Panel’s own assessment identifies potential significant adverse cumulative effects on
wetlands, old-growth forest, traditional plant potential, biodiversity, wetland-reliant species at
risk and migratory birds, old-growth forest-reliant species at risk and migratory birds, including
caribou as well as to TLU in the broader area surrounding the Project. Although there is limited
evidence of use by FMMFN #468 in the Project area or in its immediate vicinity, there is some
evidence in the TLL Report of historic use in the larger RSAs as defined by Shell, particularly
south of the Project and east of Fort McMurray. Consequently, the Panel cannot rule out the
possibility of significant adverse cumulative effects on the traditional use by FMMFN #468
arising from the Project, in combination with past, present, and future projects. However,
FMMFN #468 did not present any witnesses to substantiate that there are current TLU activities
occurring in the areas that would be subject to such cumulative effects. The Panel therefore finds
that there is insufficient evidence for the Panel to conclude that the cumulative effects associated
with the Project would have an adverse effect on FMMFN #468’s TLU activities or Aboriginal
or treaty rights.
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Fort McKay First Nation and Fort McKay Métis Community Association
Evidence
Participation and Requested Disposition
[1669] Fort McKay’s participation in the review process and hearing is discussed in the Section
Participant Involvement in the Review Process.
[1670] FMFN and FMMCA withdrew their objections to the Project shortly before the hearing
but remained concerned about the cumulative impacts of regional development and the lack of
consultation and accommodation by Alberta and Canada with respect to these impacts on their
lands and Aboriginal and treaty rights.
[1671] Fort McKay did not object to approval of the Project but made several recommendations
to the Panel related to the management of cumulative effects and Crown consultation. A list of
these recommendations is included in Appendix 8.
Rights Being Asserted
[1672] Fort McKay made its October 1, 2012 submission on behalf of FMFN and the FMMCA,
collectively referred to as Fort McKay. It described the community of Fort McKay as consisting
of approximately 800 Cree, Dene, and Métis residents who have for generations been self
governing and practicing hunting, fishing, and trapping in their traditional territory. Fort McKay
stated that the FMFN has approximately 650 registered members and the FMMCA has
approximately 63 members that are residents of Fort McKay. The submission provided a
description of Fort McKay’s rights and interests, often without distinguishing between the rights
of FMFN and FMMCA.
[1673] Fort McKay asserted that its people have, as Canadians, statutory and common law
rights. Fort McKay also asserted that, in addition, it has constitutional communal and individual
rights as part of the first peoples of Canada.
[1674] Fort McKay stated that its people are Indians within the meaning of the Indian Act,
beneficiaries of Treaty 8, and Aboriginal people within the meaning of the Constitution Act,
1982.
[1675] Fort McKay explained that the text of Treaty 8 and the oral assurances made on behalf of
the Crown at the time the Treaty was negotiated include the right to hunt, trap, and harvest
natural resources within its traditional territory and guarantees the protection of its way of life,
use, enjoyment, and control of lands reserved and the right to a livelihood.
[1676] Fort McKay asserted that it has the right to self-government and to have its culture and
religion protected. Fort McKay also asserted that it has the right to harvest a variety of resources,
including the right to hunt for food in all seasons pursuant to the Natural Resources Transfer
Agreement.
[1677] Fort McKay asserted that the Métis also have Aboriginal rights, including the right to
hunt and the right to harvest natural resources in their traditional territory.
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[1678] Fort McKay stated that Alberta has the ability to take up lands for mining and other
purposes pursuant to Treaty 8 but Fort McKay believes that this right is limited by Fort McKay’s
right to lands of a quality and nature sufficient to support the meaningful exercise of treaty rights
and access to those lands.
[1679] Fort McKay stated that the provincial and federal Crowns have a duty to not restrict
treaty and Aboriginal rights and to justify any infringement by demonstrating:
•
compelling and valid legislative objective;
•
that priority was given to the rights;
•
the means of achieving the objective infringed the right, (including the preferred means of
exercising it), as little as possible;
•
the First Nation was consulted; and
•
that necessary compensation was paid.
[1680] Fort McKay stated that it had the right to be consulted and accommodated with respect to
potential adverse effects on its rights and the interests secured by these rights.
[1681] Fort McKay stated that the FMFN owned fee simple lands and the use and benefit of
Reserves 174, 174C, 174D, 174B, and 174A. The reserve lands comprised 26 000 ha, making
FMFN the largest land holder in the northern portion of the Lower Athabasca Region after the
provincial government and Wood Buffalo National Park. Fort McKay asserted that it had the
right to use and enjoy reserve lands pursuant to section 18(1) of the Indian Act (R.S. 1985, C. I–
5) with a corresponding fiduciary obligation on Canada to protect these land rights and their
value to it.
[1682] Fort McKay stated that the Métis held about 800 acres in Fort McKay pursuant to a longterm lease with the Government of Alberta and asserted the right to use and enjoy the lands it
occupied in the community free from noxious odours, pollution, noise, and other nuisances.
[1683] Fort McKay stated that community members held 30 traplines within its traditional
territory totalling 935 146 ha. Approximately 80 per cent of this land has been leased for oil
sands development.
[1684] Fort McKay asserted the right to commercial fur harvesting for holders of RFMAs
pursuant to the Wildlife Regulation, Alta Reg. 143/1997. Fort McKay further asserted the
statutory right to hunt, fish, and trap on Crown lands pursuant to the Hunting, Fishing and
Trapping Heritage Act (S.A. c. H-15.5).
Adequacy of Consultation by Shell
[1685] Fort McKay did not raise any concerns about the adequacy of Shell’s consultation.
Adequacy of Consultation by the Crown
[1686] Fort McKay stated that it had not been consulted by Alberta and Canada on the
cumulative impact of oil sands development or the wholesale taking up of lands within its
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traditional territory. As a result, Fort McKay’s opportunities to exercise its treaty and Aboriginal
rights continue to be increasingly restricted and lost.
[1687] Fort McKay stated that although each project adds to the cumulative loss of TLU
opportunities and adversely affects the community of Fort McKay and its rights, neither Canada
nor Alberta have a process for consulting on the overall impacts of intensive oil sands
development. Fort McKay also stated that neither government will consider or address options
for accommodating the significant loss of Fort McKay’s traditional lands and resources
necessary to support TLU opportunities.
[1688] Fort McKay stated that Alberta and Canada continue to take the position that adverse
effects to Aboriginal and treaty rights can be addressed using a project-by-project approach. Fort
McKay stated that rather than engaging in consultation, Canada’s approach was to encourage
Fort McKay to participate in the JRP hearing process so that its concerns would be incorporated
into the Panel’s decision report and would then be considered by Canada. Fort McKay said
Alberta delegates consultation to project proponents who do not have the power or authority to
accommodate Aboriginal or treaty rights, or the constitutional obligation to do so.
[1689] Fort McKay stated that because each project, considered in isolation, removes a relatively
small portion of Fort McKay’s traditional territory, the Crown does not consider whether some
protection and accommodation is required or assumes none is required. Fort McKay further
stated that as a result of the Crown’s approach, a large number of projects have been approved,
impacts have increased dramatically, and its rights have been eroded to the point of infringement.
Fort McKay stated that the experience of the community, and the scientific assessments it had
commissioned, confirm these impacts. Fort McKay also stated that the modelling work
commissioned by the Government of Alberta and Fort McKay, the wildlife surveys Fort McKay
sponsored, and other data all indicate that as a result of bitumen production, the land and
resources within Fort McKay’s traditional territory will likely not support TLU activity.
[1690] Fort McKay stated that the LARP will not change this situation because it is a plan to
maximize bitumen production. Fort McKay stated that the protected areas under the plan are not,
for the most part, located within Fort McKay’s traditional territory and there is no evidence that
they are sufficient to support wildlife populations and other terrestrial resources in the region.
Fort McKay stated that the protected areas were not selected based on an assessment of their
impact on the projected decline of environmental indicators. Fort McKay submitted that the
protected areas and existing management frameworks will not prevent mining or other
development of 80 per cent of Fort McKay’s traditional territory, as currently projected and
optimized by government policy.
[1691] Fort McKay stated that before further oil sands development, accommodation in the form
of environmental, land management, and economic benefits are essential because mining and
bitumen processing is destroying large tracts of land and transforming the landscape, way of life,
culture, a