Re: Joint Review Panel, Shell Canada Energy Pierre River ...

September 14, 2012

Via email: [email protected] Shell Review Panel Secretariat Canadian Environmental Assessment Agency Place Bell Canada 160 Elgin Street, 22nd Floor Ottawa, ON K1A 0H3 Attention: Robyn-Lynne Virtue, Panel Manager

Re: Joint Review Panel, Shell Canada Energy Pierre River Mine Expansion (“Application”)

Our File: 028645-0012 We are the solicitors for the Fort McMurray First Nation ("FMMFN") with respect to the Application.

Enclosed please find MSES Inc.'s comments on the adequacy of the Pierre River Mine Expansion EIS, on behalf of FMMFN.

We trust the above to be satisfactory. If you should have any questions regarding the above, please do not hesitate to contact the writer directly.

Sincerely,

MacPherson Leslie & Tyerman LLP

Per:

G. Rangi Jeerakathil

RGJ:sdk cc: Nicholle Louvelle, Fort McMurray First Nation Industrial Relations Corporation Jim Cardinal, Fort McMurray First Nation Industrial Relations Corporation Brad Callihoo, Fort McMurray First Nation Industrial Relations Corporation

G. Rangi Jeerakathil Direct Line: (306) 975-7107

E-mail: [email protected]

Assistant: Stefanie D. Kerpan Direct Line: (306) 956-6962 E-mail: [email protected]

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MSES Inc., 207 Edgebrook Close NW, Calgary, Alberta, Canada T3A 4W5 Phone:+1(403)241-8668 * Fax: +1(403)241-8679 * Email: [email protected]

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Reconciling Shell Pierre River Mine (PRM)

Gaps with JRP ToR and FMFN TLU All requests below are gaps that were found to be still outstanding after our technical review and after the responses by Shell to our review. The gaps were also outstanding when Shell’s responses to the ERCB and AENV SIRs were considered. We made an effort in grouping the requests so that they would relate to any given section of the “AMENDED AGREEMENT To Establish a Joint Review Panel for the Pierre River Mine Project Between The Minister of the Environment, Canada – and – The Energy Resources Conservation Board, Alberta”. We reprinted the relevant sections of the AGREEMENT in blue text below as an anchor for each preamble. TOR Section 6. Aboriginal Rights and Interests

Preamble

Shell has not provided concrete evidence for how it integrated into its EIA the Traditional Land Use (TLU) information and comments and concerns raised by the First Nations (FNs). The Fort McMurray First Nation #468 (FMFN) members have expressed that they have become alienated from using their traditional areas, lands and foods due to fear of contamination and pollution of the air, water and their traditional foods plus the loss of land to development (Labour, Dickson, and MSES 2012, pg. 15). Shell’s assessment of adverse environmental effects is based on residual or post-mitigation Project effects, but only assumes those mitigations committed to by Shell in the EIA and not any of the mitigations proposed by FNs. Repeatedly, Shell has stated that it was willing to discuss and listen to comments from the FNs, but in no case has Shell provided evidence that the FN’s concerns were integrated into the strategic and operational planning of the proposed projects. In fact, many FMFN members feel that their comments and concerns seem to have little effect on government and/or industry decision-making (Labour, Dickson, and MSES 2012, pg. 22). Lastly, Shell has not yet used the input from the FNs on how impacts to established Aboriginal and treaty rights should be mitigated and how the success of that mitigation should be measured.

Shell concludes that impacts to traditional resources are either low or negligible. This conclusion is based on Shell’s belief that the disturbance to vegetation and wildlife will be reversible. However, the same authors who developed the impact assessment for the PRM, Golder Associates Ltd., also developed a report about the history of reclamation on Suncor’s leases (Golder 2007, Suncor is used as a study example due to its arguably, longest history in Oil Sands operations and reclamation). The

mailto:[email protected]

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report provides evidence that the vegetation communities which develop in reclamation sites are not comparable to pre-disturbance communities and will not be in the foreseeable future.

Shell’s own plans to mitigate impacts to established Aboriginal and treaty rights largely involve the re-establishment of pre-industrial conditions after disturbance. However, Shell does not have the data that would describe pre-industrial conditions; it is, therefore, impossible for Shell to know when they will have achieved this goal. To date there is no example in the Oil Sands region where Traditional Resources (TR) were re-established after disturbance to a level similar to what existed prior to industrial disturbance. Shell has not provided any evidence that impacts can be mitigated and if mitigation is possible, how the success of re-establishing TR use would be measured.

Requests

1. Please provide concrete evidence of how Shell integrated into its EIA the TLU information and the comments and concerns raised by FNs in the past. Please discuss how the information provided by FNs were or will be integrated into the strategic and operational planning of the proposed projects.

2. Please discuss how the assessment of TR for the local study area that was done recently (after submission of the EIA and SIRs) will inform the strategic and operational planning of Shell’s proposed projects.

3. Given that there is no example in the Oil Sands region where TR were re-established after disturbance to a level similar to what existed prior to disturbance, please provide tangible details on how success of re-establishing TR use would be defined and measured.

4. Please provide clear information on what the appropriate approach should be in developing a monitoring program for the sustainable management of TRs. Please discuss the following:

a. how TR would be managed sustainably in partnership with the FMFN;

b. how a community-based monitoring program could be established;

c. what the schedule for establishing any monitoring program for TR would be;

d. how the results of a monitoring program would be communicated by Shell to the FMFN; and

e. how Shell would demonstrate to the FMFN the way in which their input and feedback on each round of monitoring results will be integrated into strategic and operational procedures.

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Preamble

Shell has not provided details as to how they will ensure that FMFN can maintain their use of TR. The access to, and availability of, TR as the result of industrial disturbance and contamination is already a major concern for the FMFN (Labour, Dickson, and MSES 2012). Missing entirely from the EIA is an analysis of what is needed to sustain the use of TR today and into the future. For example, Shell’s wildlife impact assessment is not tenable because the assessment hinges on the assumption that wildlife habitat and wildlife distribution will be re-established after the project. Shell has not been able to validate this assumption because the re-establishment of wildlife habitat and distribution has not been accomplished anywhere in the Oil Sands region. Shell asserts that TR would be re-established within decades after closure. Yet, Golder (2007) found that “Native species were only common in areas that had not been seeded with agronomic species (AGRA 1996b). Forest growth after 100 years on reclaimed sites at Suncor was predicted to be slightly lower (i.e., trees slightly smaller) than on adjacent natural forest areas (AGRA 1996b)” (p.32). Golder (2007) also found that “Wildlife use was observed to be higher in undisturbed areas than reclaimed areas, with reclaimed areas being used mainly by coyote, small mammals and grouse” (p.48). Shell’s assumption that wildlife and vegetation habitats will be re-established is further contradicted by the inability to re-establish fens, bogs and groundwater levels and quality (the latter may affect the ecosystems that develop on the surface).

Even if Shell succeeded to re-establish TR within decades after closure, this is a duration that spans several human generations. FMFN Elders have already noted their worry for future generations because they feel there is no way for them to pass on their knowledge and culture (Labour, Dickson, and MSES 2012, pg 22). Shell does not offer any explanation on how the FMFN can suspend their TR use for that long a period without significant impacts to their culture. In Round One AENV SIR # 455b for PRM Shell asserts that: “Lack of access and local extirpation of areas resulting from the project will affect where locals can hunt, fish, and trap for between one and two human generations, i.e., about 30 years. Surrounding areas will still be available, but locals will have to travel farther to access them”. However, Shell does not explicitly relate this predicted loss to the impacts this will have on the Aboriginal and treaty rights of future generations.

Shell’s assessment of TR such as lichen-jack pine communities formed erroneous conclusions about the distribution of TR. Lichen-jack pine communities were ranked as low traditional use plant potential when they should have been classified as high traditional use potential. Such misclassifications mean that the calculations for the area within low, moderate, and high potential for traditional use plants are inaccurate.

Requests

1. Please re-assess the consequences of impacts on Aboriginal and treaty rights using the finding that impacts will last decades and will not be reversible 100 years after closure.

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2. Now that a project-specific TLU study has been completed, please answer the following questions:

a. How will Shell mitigate the impacts on traditional plant potential?

b. How do the FMFN rate the significance of residual impacts on the traditional plant potential?

c. How does Shell propose to measure the effectiveness of mitigation of impacts to traditional plant potential?

d. How will Shell assure FMFN that impacts on traditional plant potential will not exceed the predicted levels?

3. Please provide an updated reconciliation of the TR potential as assessed in the EIA compared to the findings from the TLU study. In other words, based on the information that emerged from the TLU study, correct the errors and erroneous conclusions that were presented in the EIA.

Part 11 – Scope of the Environmental Assessment

Preamble

Shell has not defined the point at which adverse effects on Aboriginal and treaty rights are deemed significant, but FMFN members have already said impacts of development on traditional lands are significant (Labour, Dickson, and MSES, 2012, pgs.15 & 26). To determine significance, Shell would need to ask the Aboriginal communities about the value they put on TR or activities. In the international EIA practice there is “considerable unanimity of views that consultation with …the local community should assist in ensuring that all potentially significant impacts are identified” (Wood 2003, p.161). The determination of significance needs to be done collaboratively through effective public consultation (Lawrence 2007). That is, Shell would need to discuss with the FMFN what the perceived impact might be and how that should be mitigated. Once mitigation measures have been designed, with input from the FMFN, the significance of residual impacts would need to be rated by the FMFN. Shell has not yet done this, as confirmed by Section 5 of the TLU Report prepared by Golder (2011a, p.5):

5.0 SIGNIFICANCE DETERMINATION Following is a TLU significance determination to support and augment the TLU assessment in the Project’s EIA.

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5.1 Approach To determine the significance of the Project’s effects on traditional land use, consideration was given to what constitutes a significant effect to the resources used by a traditional resource user. As EIA practitioners, significance is discussed from a scientific perspective and in an ecological context. Value placed on the resources beyond a scientific or ecological context are not considered in this determination; however, 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.

Request

1. Taking the values of traditional land users into account, please define the level at which adverse effects on Aboriginal and treaty rights are deemed significant for any TR identified by FMFN as potentially impacted.

2. Please re-assess the significance of impacts on Aboriginal and treaty rights using the finding that impacts will last decades and will not be reversible 100 years after closure.

Part 111 – Scope of the Factors

Preamble

Although woodland caribou are listed as “Threatened” federally and provincially “At Risk”, and local knowledge holders have identified that they can occur in the LSA, Shell states that : Woodland caribou are very uncommon in the Pierre River Mine local study area (LSA), which is located outside designated caribou areas. As a result, Shell will not adopt any specific measures to monitor woodland caribou associated with the Audet herds.” “Many of the mitigation commitments made by Shell will be effective for caribou” (Round 1 AENV SIR #505a). However, Shell has not provided any information on how the general wildlife mitigation will address the impacts on caribou and how the effectiveness of mitigation will be tested. Because Shell commissioned a TLU study after they submitted the EIA, the effects on uses of lands and resources by Aboriginal groups have not yet been determined. However, FMFN members estimate that moose populations are a quarter to half the size they were in the 1990s, and access to favoured moose hunting areas is restricted by industrial development (Labour, Dickson, and MSES, 2012, pg. 19).

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Shell would need to discuss with the FMFN what the perceived impact might be and how that should be mitigated. Only with input from the FMFN can the effects on uses of lands and resources for traditional purposes be assessed. Shell’s consultant seems to believe that this is the responsibility of regulatory agencies (Golder 2011b, p.5):

“Value placed on the resources beyond a scientific or ecological context are not considered in this determination; however, 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.”

Whether or not Shell believes that Shell is responsible for assessing the impacts to the value that FMFN place on certain TRs, the values have been neither identified nor discussed, even for those TRs that Shell received information on prior to the EIA. Specific to caribou, the “scientific or ecological context” for caribou has not been addressed. Requests

1. Please quantify the significance of impacts on TR availability, prior to specific reclamation of caribou and moose habitat.

2. Please quantify the significance of impacts on TR availability, after specific reclamation of caribou and moose habitat.

3. Please quantify the impacts on TR use and culture relating to caribou and moose comparing the application case to the pre-industrial case.

4. Please quantify the impacts on TR use and culture relating to caribou and moose comparing the planned development case to the pre-industrial case.

5. Please discuss the implications for future generations using TR in light of the evidence that pre-disturbance habitat will not be restored and thus the impact not being reversed.

Aboriginal Rights and Interests cont.:

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Preamble regarding Terrestrial Resources The Practitioners Guide states on p.2 [emphasis added]:

Other actions that have occurred, exist, or may yet occur which may also affect those same VECs are identified. Future actions that are approved within the study area must be considered; officially announced and reasonably foreseeable actions should be considered if they may affect those VECs and there is enough information about them to assess their effects

To identify disturbances that have occurred or exist today, current resource conditions must be compared to pre-industrial conditions. Pre-industrial conditions need to be described and quantified for all disciplines, whether biophysical or socio-economic. In their assessment of impacts from the Pierre River Mine Project, Shell does not appear to consider the re-establishment of the distribution and abundance of wildlife populations to the conditions which existed prior to industrial disturbance. When asked how Shell plans to re-establish pre-industrial (or pre-disturbance) conditions, Shell states that “The reclamation target is for equivalent land capability in the reclaimed area” (Shell Canada, 2007, Vol. 5, App. 5-1 and 5-2, Section 2.4.8, pg. 73), but this statement is contradictory to the assumption that impacts will be reversed. This statement is contradictory to the assumption that impacts will be reversed. The lack of definition for “equivalent” aside, if the post-reclamation ecosystem is different from the ecosystem that existed prior to disturbance (as indicated by Golder 2007), then the impact to the pre-disturbance ecosystem has not been reversed. In that light, the impact rating used by Shell is flawed because it assumes reversibility of the impacts and a less than far future duration. The rating of the environmental consequences, both for the project specific as well as the cumulative impacts needs to be re-assessed.

In addition, Shell argues that an ecological threshold of landscape scale disturbance exists at about 70% of habitat removed resulting in a decline of persistence of wildlife populations in the landscape. Moreover, in a report prepared by the same consultants (Golder Associates Ltd. for De Beers Canada Inc. 2011), the proponent states: “For both seasonal periods, landscape disturbance is well below the 40% threshold value for habitat loss associated with anticipated declines in bird and mammal species (Andrén 1994, 1999; Fahrig 1997; Mönkkönen and Reunanen 1999; Swift and Hannon 2010).” ( p.11.11-91). Thus the authors of the report by DeBeers Canada Inc. (2011) use only 40% of habitat removed as a threshold

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for landscape scale disturbance. In Shell’s response to the JRP IRs relating to the Jackpine Mine Expansion, Shell calculated that 36% of the RSA was disturbed. While it is unclear how Shell arrived at that result given a lack of detail provided to explain the methods chosen in this calculation, and while Shell’s calculations may well substantially underestimate the actual disturbance, Shell’s calculated value of 36% disturbance appears to be rather close to the potential threshold of 40% estimated by Golder Associates Ltd. for DeBeers Canada Inc. (2011). This means that the RSA may have already reached a threshold at which wildlife populations may cease to persist thus reducing opportunities for traditional activities such as hunting. In fact, a recent analysis demonstrates that about half of FMFN traditional land use points (Labour, Dickson, and MSES, 2012, Table 2, p.29) have been disturbed around the Pierre River Mine site. This cumulative impact may not be reversible.

Specific to the loss of habitat and barriers to wildlife movement, Shell states that the 250m setback along the Athabasca River provides a balance between minimizing impacts to the wildlife corridor and recovery of bitumen. Shell asserts that the setback is sufficient to allow the movement of wildlife along the Athabasca River, but provides no substantive rationale (PRM Round 2 AENV SIR #49a).

Without information on pre-industrial resources and how resource conditions have been altered to date, any incremental effects of landscape fragmentation and the resultant increase in human access cannot be understood. Moreover, without information on how wildlife movements through the landscape will be restored and human access reduced in the future, the adverse effects on the ability of future generations to pursue traditional lifestyles cannot be determined. Requests

1. Please assess the impacts on hunting and fishing and access to traditional resources in light of reaching a landscape scale threshold at which wildlife populations may cease to persist in the RSA.

2. Please assess the ability of future generations to continue hunting and fishing and accessing traditional resources in light of reaching a landscape scale threshold at which wildlife populations may cease to persist in the RSA.

3. Please provide quantitative evidence of how fragmentation

a. has affected the use of TR to date,

b. will continue to alter the landscape in the future, and

c. will be mitigated to alleviate the impacts on TR use in the future.

4. Please describe where wildlife from the Project area will go during Project construction and operations and where re-colonizing wildlife will originate from after closure and reclamation.

5. Please define exactly when closure is “complete” and reclamation is “successful.”

6. Please provide evidence that the various corridor options (widths and lengths) will work to maintain regional wildlife movements.

7. Please describe in detail how the effectiveness of mitigation would be tested.

8. Please provide targets for the re-establishment of traditional wildlife resources (i.e., harvested species such as moose, bison, black bear, waterfowl, beaver, muskrat, etc.).

9. Please discuss how the shift from wetland to upland plant communities will impact future generations to pursue traditional life styles.

10. Please use statistical analysis to validate the HSI models and model assumptions. For example,

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a. describe the accuracy associated with the AVI data used in the various LSA Models;

b. describe how the accuracy of the HSI models and impact predictions affect Shell’s ability to validate its predictions in the future; and

c. provide data or supporting literature for Shell’s claims that moose, lynx, fisher/marten, and black bear are the species most sensitive to habitat fragmentation and that the other KIR species as well as bison and caribou will show similar or lesser effects.

11. Please conduct detailed vegetation plots within uncommon ecosites and wetland types and in cut-blocks to increase the accuracy of the preliminary vegetation map.

12. Please provide evidence, either from supporting data or peer-reviewed literature, for Shell’s claims that reclaimed shrubland may provide habitat that will mitigate the loss of fens inhabited by yellow rail (an avian species listed as of Special Concern and in Schedule 1 under SARA; Shell has indicated that the effects of the project on this species and its habitat will be high).

Preamble regarding Aquatic Resources

The FMFN cited the degradation of traditional aquatic resources, both as a source of potable drinking water and for the maintenance of fish populations, as an area of concern in relation to ongoing development (Labour, Dickson, and MSES, 2012). The issues raised by FMFN regarding water management remain unaddressed. There is no analysis of the implications of water withdrawal and pollution on traditional societal development, lifestyle, culture, and health and the ability of future generations of traditional land users to pursue traditional lifestyles. A significant hydrogeologic impact involves relatively widespread degradation of groundwater quality due to tailings disposal. In PRM Round 2 ERCB SIR #57c, it appears that groundwater quality will continue to degrade surface water quality beyond the temporal boundaries of 100 years after completion of mining established for the EIA. For example, in Shell’s solute transport model, peak concentrations of several Project contaminant indicator parameters were not determined at several nodes which represent points of groundwater discharge to surface water in the Project Area because they occurred beyond the timeframe of the model (100 years beyond Project closure). In addition, no regional solute transport modeling was carried out. As a result, the basis for Shell’s assessment of negligible effects of Project-based groundwater seepage on the Athabasca River with respect to human and ecological health is unclear. Groundwater solute transport modeling of the external tailings disposal area (ETDA)-sourced contaminant seepage should be carried out over a sufficient time scale to allow peak contaminant loadings to be quantified in terms of cumulative impacts from all oil sands projects, operating and planned, within the Athabasca basin over the next 100 years and beyond.

Although Shell states that they will monitor for groundwater quality and install mitigation measures around the perimeter of the tailings pond (PRM Round 1 ERCB SIR #319b), the actual containment efficiency achieved will depend on the scope and comprehensiveness of design of the proposed ETDA-groundwater monitoring well system, as well as groundwater quality monitoring frequency. Given that groundwater plumes are often lenticular (i.e. long, narrow plumes aligned in the direction of groundwater flow), it is possible that the proposed monitoring well network may not detect all potential ETDA-derived groundwater seepage. Furthermore, Shell proposes to monitor groundwater quality semi-annually to annually (PRM Round 2 ERCB SIR #55), and thus a significant amount of ETDA-sourced contamination could migrate beyond the interception well network before the subsequent round of groundwater quality monitoring occurs.

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Lastly, in order to understand the long-term ecological implications of habitat shifts, such as the ones that will occur through the current lake compensation plan (primarily stream/river to primarily lake), it is important to predict end land use opportunities with some degree of certainty. Yet Shell provides no discussion as to how ecosystem shifts of this magnitude might influence fish and wildlife populations (in terms of life history parameters such as size, demographics, etc.) at the local or even the regional level. Aboriginal communities generally, and the Fort McMurray First Nation specifically, are concerned about future groundwater quality (MSES, 2009). Given that Shell is working in a situation in which future groundwater quality is suspect, uncertainty surrounding maintenance of fish health, and potential exceedances of water quality parameters, it is not possible to determine, with the current information, the impacts that could be experienced by future generations of traditional land users. Requests

1. Please quantify the impacts on TR use and culture relating to ground water contaminants loadings comparing the application case to the pre-industrial case.

2. Please quantify the impacts on TR use and culture relating to ground water contaminants loadings comparing the planned development case to the pre-industrial case.

3. Please discuss proposed contingency measures, if any, to address any long-term (i.e., 100 yrs post-mine closure) tailings-related groundwater contaminant mitigation requirements.

4. Please discuss the implications for future generations using TR in light of evidence that pre-disturbance ground water quality will not be restored and thus the impact not being reversed.

Aboriginal Rights and Interests cont.:

Shell has not proposed any measures to manage, mitigate, or compensate effects on Aboriginal rights and interests. To comply with this term, Shell would need to define what the acceptable level of mitigation and compensation is for the FMFN. Shell has not yet determined the impacts on Aboriginal rights and interests as perceived by the FMFN. Questions regarding the management and mitigation of impacts to Aboriginal rights and interests are listed under the TOR Section 6.1 and under bullets listed above this section. The effectiveness of mitigation must be tested.

According to the operational policy of the Canadian Environmental Assessment Agency (2009):

Baseline data or information is critical for measuring change in the environment once the project is implemented. Since it is necessary to establish a baseline against which follow-up data can be compared, systematic collection of appropriate data about the environment (either from existing sources or new studies) should start in advance of project implementation.

It is important to establish testable EA predictions when planning a follow-up program or potential adaptive management measures.

…

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Hypotheses should be constructed, tested and utilized in the further application of the scientific approach. Sound prediction methods provide a basis for understanding why change occurs in the environment and how to select adaptive management measures based on those conclusions.

Predetermined action thresholds can be used to indicate when environmental performance is below an acceptable level and requires corrective management action. Where possible during the EA process, consideration should be given to demonstrating that there are a range of available options to adapt and manage the project should a mitigation measure not function as intended.

Request

1. Please clarify the milestones and schedule for developing effects monitoring and adaptive management programs to assure Aboriginal land users that impacts are acceptable.

2. Please explain how Shell would assure that the above programs would be designed and implemented prior to construction, in accordance with CEAA’s policy.

3. Please determine any future measure that will be developed as a result of adaptive management to assure Aboriginal land users that impacts are acceptable.

4. Please demonstrate what concrete options exist to adapt and manage the project should a mitigation measure not function as intended to assure Aboriginal land users that impacts are acceptable.

5. Determine the action thresholds which will be used to assure Aboriginal land users that if environmental performance would be below an acceptable level, adaptive management action would be implemented.

Cumulative Effects Assessment cont.:

Preamble Shell’s cumulative impact assessment and mitigation measures that are required at a regional scale lack substance in any of the disciplines listed in the above TOR section. For water and air resources, Shell

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relies on its membership in regional, multi-stakeholder groups and on approval conditions to be set out in regulatory approvals. Shell does not provide any information on how its own data will add to and improve the knowledge of regional cumulative effects. Shell does not provide any information on how it will use the research results from regional, multi-stakeholder groups or its own data to guide its operations. Shell’s conclusions that there will be no significant cumulative effects are based on little or no information about past, present, and future regional effects. Moreover, Shell uses the erroneous assumption that impacts to traditional resources will be reversed. Shell’s own consultants found that this is not likely the case (Golder 2007, see our discussion above). Numerous independent review panels have identified the need for rigorous scientific methods in the regional cumulative effects management of the oilsands. These reviews culminated in the report by the Office of the Auditor General of Canada (2011):

“despite repeated warnings of gaps in environmental information, little was done for almost a decade to close many of those key information gaps. …, uncertainty persists about other environmental trends, because of insufficient or inadequate environmental monitoring systems. … As a consequence, decisions about oil sands projects have been based on incomplete, poor, or non-existent environmental information that has, in turn, led to poorly informed decisions.”

Shell provides no mitigation measures that would ensure that impacts to federally and provincially listed Species At Risk (SAR) and migratory birds will be avoided. A good example of this are species that inhabit fens and bogs. Shell’s own recent surveys of SAR found that Shell’s leases contain fens and bogs and that SAR inhabit these habitats (Golder 2011b). Despite this finding, Shell has virtually no plans to re-establish fens and bogs on its leases or elsewhere in the region to mitigate for this loss of habitat. Of the 12,226 ha of fens and bogs to be disturbed, only 60 ha of fens will be re-established; within the re-established fens only a limited number of species will be reintroduced. Consequently, the regional cumulative effect on SAR and other species inhabiting wetlands is a serious matter that must be addressed using adequate environmental information.

Water quality guidelines have been exceeded in the past and the exceedances have been measured, repeatedly by Shell’s own monitoring programs. Such exceedances are cumulative in the region and appear to be evident in the changing water quality of the Athabasca River and its tributaries (Kelly et al. 2010). In its response to the First Nation questions about exceedances in water quality, Shell simply quotes from guidelines, which do little to protect TR use. Shell has not demonstrated how it intends to improve on the scientific rigour of monitoring water quality in receiving streams and how exceedances in water quality parameters are protecting TR use.

Shell states that endocrine disruption, as a form of the potential sub-lethal effects that arise from exposure to oil sands effluent, is not expected in fishes exposed to constituent components of the effluent. This may be the case for adult fish. However, research into the development of eggs and embryos exposed to oil sand process effluent at low concentrations have shown developmental challenges when exposed in a lab setting (Kelly et al. 2009). Shell has not discussed the issue of exposure of fish eggs and embryos to oil sands effluent.

Requests

1. Please provide evidence of research efforts and research successes in the following:

a. reducing the environmental long-term effects of tailings ponds,

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b. alternative approaches that would result in the reduction of the tailings footprint,

c. the elimination of tailings pond seepage, and

d. the reduction and/or elimination of uncertainties associated with the reclamation of tailings ponds.

2. To show evidence for how successful any proposed mitigation was in any similar projects, please provide an annotated bibliography of collaborative water-related research projects to evaluate the cumulative effects of current, approved, and planned oil sands projects in northern Alberta. At a minimum, the bibliography should list the title, objectives, and results achieved to date for research on the following:

a. cumulative effects on groundwater with associated effects on local wetlands, lakes, streams, and rivers;

b. an oil spill dispersion analysis for the Athabasca River;

c. cumulative effects of oil spills and leakages on the Athabasca River and water bodies downstream of the Embarras; and

d. water balance analyses for each specific landscape unit with a unique land cover-soil-climate characteristic, with particular focus on reconstructed landscape units so as to optimize conditions for successful reclamation.

3. Please provide flow parameters for characterizing changes and effects on the Athabasca streamflow due to the proposed project for the peak flow and the 7Q10 low flow for at least the 100-year return period.

4. Please provide an assessment of the cumulative effect on sediment and water quality of the proposed project in addition to existing and approved oil sands projects upon the Athabasca River.

5. Please demonstrate that the results of local-scale transport modeling for the PRM are for an additional 2,000 years beyond the far-future snapshot described. The information in the EIA Appendix 4-1 does not appear to include any description of modeling conducted beyond 100 years of post-closure.

6. Please discuss the possible future use of shallow groundwater resources for TR use in light of the likely scenario that the groundwater systems in the project area will all be affected by projects in the region and cannot be assumed to attenuate contaminated seepage (as Shell assumed in the EIA) from the Project before the groundwater discharges to surface water systems.

7. Using data from existing monitoring programs, please demonstrate how traditional resource use will be protected from exceedances in water quality parameters in Shell’s projects and any other past, present, and future projects in the RSA.

8. Please provide supporting evidence from Shell’s other projects that would indicate that compensation lakes are meeting target compensation ratios. In order to understand what is being compensated, pre-development baseline data must be collected. For the regional study area, quantify how much fish habitat (for any given valued ecosystem component) has been lost and how much has been compensated to date.

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9. Shell’s monitoring program does not include a component to monitor fish health so that concrete measurements of fish health could be related to the diet of traditional land users. Please demonstrate how Shell would do the following:

a. measure sub-lethal effects as endocrine disruption that may arise as a consequence of exposure to oil sands effluent;

b. document the development of eggs and embryos exposed to oil sand process effluent at low concentrations; and

c. conduct bile analysis and measure and monitor for sub-lethal effects.

9. It is acknowledged by Shell that there may be exceedances of the Alberta Ambient Air Quality Objectives (AAAQO) for benzene (PRM Round 2 ERCB SIR# 42 and AENV SIR #6). Please fully present the impacts from air emissions that could be experienced by the FMFN and provide supporting documents to show predicted contaminant concentrations and impacts on land that the FMFN will access. Provide information on how Shell intends to reduce the predicted emission exceedances.

The Athabasca River has the most significant negative streamflow trends of all rivers in Alberta. The analysis of Shell’s future impacts and regional cumulative impacts on the Athabasca River are inadequate for the following reasons:

1. Shell has not incorporated into their predictions of project-specific and cumulative impacts statistically significant trends detected in certain flow conditions in the Athabasca River and other rivers in the area. Shell has not used evidence to demonstrate that they are using current information for these analyses.

2. Shell has not explained how the trends in air temperature and precipitation were used to estimate the expected range of future streamflows in the Athabasca River downstream of Fort McMurray.

3. Shell has not clarified what the impacts of climate change might be on the PRM. Shell defers to RAMP for analyzing annual trends in aquatic systems but does not discuss how any detected trends compare with predicted climate change trends (PRM Round 1 AENV SIR #301).

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This topic is also listed under Part II. 2.h:

Preamble

There is now ample evidence that the assumption that impacts to wildlife and vegetation can be reversed is not supported (see Golder 2007 and discussion above). Thus the evidence does not support that TR which may be significantly impacted by the project and by cumulative impacts in the region, will meet the needs of future generations.

Shell has not provided evidence to support the conclusion that “the effects of fragmentation and habitat loss are predicted to be reversed.” Several wildlife species are already in decline and listed as Species at Risk. For example, woodland caribou are likely to be extirpated from northeastern Alberta as their sustainability is considered “very unlikely” by Environment Canada (2011). For wetland ecosystems, such as bogs and fens, Shell has virtually no plans for their re-establishment, even though these habitats represent critical habitat for many wetland Species at Risk.

In light of the fact that a large number of non-native plant species are found in human-disturbed areas, Shell’s expectation that impacts to traditional plant community resources will be reversible is not supported. The presence of a large number and variety of non-native plant species in human-disturbed areas, even after reclamation, shows that the reestablishment of native plant communities without non-native plant species has not been possible. This indicates that the effects of non-native plant species on native vegetation are likely irreversible.

Moreover, the interrelationship between groundwater, surface water, and wetland ecosystems is not acknowledged, as is evident in their contention that they can reverse habitat loss. Contrary to this contention, there will be irreversible impacts to groundwater, and by implication, irreversible impacts to wetland ecosystems. Shell has not provided information on how it intends to re-establish the pre-industrial groundwater regime and diversity of plant or animal species. Shell has not provided targets for the re-establishment of these TR. Also, please see our comments on reversibility of impacts to and capacity of renewable resources under the TOR Section for Cumulative Effects Assessment.

Requests

1. Please re-assess the impacts on TR using evidence indicating that impacts to TR will not be reversible and that the impacts will be of far-future duration.

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2. Please document the views of Aboriginal communities on how they believe their future generations will be affected by the foreseeable degradation of renewable resources.

3. Please provide evidence from research or peer-reviewed literature to support Shell’s prediction that reclamation will result in the restoration of pre-disturbance conditions and thus be effective in avoiding project impacts on groundwater.

4. When modeling cumulative effects, please quantify vegetation community disturbance at several points of time, including the pre-industrial period compared to the Application Case and Planned Development Case. Use this progression of change to date and the information provided under point (2) above to forecast the capacity of renewable resources to recover in the future and to meet the needs of future generations.

5. The areas burned within the last 20 years are simply young forests and should be classified as to their ecosite phase or wetland type. Please categorize the following correctly:

a. “burn” areas as to their actual ecosite, and

b. “burn” areas as to their values for traditional use, rare plant potential, biodiversity, and forest and wildlife resources.

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REFERENCES Canadian Environmental Assessment Agency. 2009. Operational Policy Statement, Adaptive Management

Measures under the Canadian Environmental Assessment Act. © Her Majesty the Queen in Right of Canada, 2009. Catalogue No.: 978-1-100-12062-1; ISBN: En106-83/2009E-PDF

De Beers Canada Inc. 2011. Gahcho Kué Project. Environmental Impact Statement. Submitted to the

Mackenzie Valley Environmental Impact Review Board. December 2010. Environment Canada. 2011. Recovery Strategy for the Woodland Caribou, Boreal population

(Rangifer tarandus caribou) in Canada [Proposed]. Species at Risk Act Recovery Strategy Series. Environment Canada, Ottawa. vi + 55 pp.

Golder (Golder Associates Ltd.). 2007. History of Reclamation and Reclamation Research for the Suncor Oil

Sands Projects. Prepared for Suncor Energy Inc. 05-1344-021. Fort McMurray, AB. Golder (Golder Associates Ltd.) 2011a. Shell Jackpine Mine Expansion & Pierre River Mine Project;

Submission Of Additional Traditional Knowledge And Traditional Land Use Information To The Joint Review Panel. Report No. 10-1346-000.

Golder (Golder Associates Ltd.) 2011b. Shell Jackpine Mine Expansion & Pierre River Mine Project;

Federally Listed Species at Risk Surveys. Report Number: 10-1346-0001/7000/7019. Kelly, E. N., Short, J.W., et. al. 2009. Oil sands development contributes polycyclic aromatic compounds

to the Athabasca River and its tributaries. Proceedings of the National Academy of Sciences 106: 22346-22351.

Kelly, E. N., Schindler, D.W. et al. 2010. Oil sands development contributes elements toxic at low

concentrations to the Athabasca River and its tributaries. Proceedings of the National Academy of Sciences 107: 16178-16183.

Lawrence, D. P. 2007. Impact significance determination-Back to the basics. Environmental Impact

Assessment Review 27: 755-769. MSES 2009. Traditional land use mapping of the lower Athabasca river. Prepared for the Fort McMurray

First Nation. Labour, Dickson, and MSES 2012. Cumulative impacts to FMFN #468 traditional lands & lifeways: Shell

Jackpine mine expansion and Pierre River Mine report for regulatory hearings. Prepared for the Fort McMurray First Nation.

Office of the Auditor General of Canada 2011: The Commissioner’s Perspective: Chapter 2 - Assessing Cumulative Environmental Effects of Oil Sands Projects. Report of the Commissioner of the Environment and Sustainable Development to the House of Commons. 16pp.

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Shell Canada Ltd. 2007. Application for Approval of the Jackpine Mine Expansion Project and Pierre River Mine Project: Environmental Impact Assessment, Volume 5: Terrestrial Resources and Human Environment. Submitted to Alberta Energy Resources Conservation Board and to Alberta Environment.

Shell Canada Ltd. 2009. Application for Approval of the Pierre River Mine Project: Supplemental Information Round 1. Submitted to Alberta Energy Resources Conservation Board and to Alberta Environment.

Shell Canada Ltd. 2010. Application for Approval of the Pierre River Mine Project: Supplemental Information Round 2. Submitted to Alberta Energy Resources Conservation Board and to Alberta Environment.

Wood, C. 2003. Environmental impact assessment: A comparative review, 2nd Edition. Prentice Hall,

Edinburgh.

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