WOLF LAKE FIRST NATION Hunters Point, P. O.

Box Temiscaming, Quebec J0Z 3R0 Tel: 819-627-3628 Fax: 819-627-1109

Eagle Village First Nation-Kipawa Migizy Odenaw 998 P.O. Box 756 Temiscaming, QC J0Z 3R0 Tel: 819-627-3455 Fax: 819-627-9428

Comments to CEAA on Kipawa Rare Earths Project Draft EIS Guidelines ________________________________________________________ Wolf Lake and Eagle Village Algonquin First Nations Date: May 1, 2013 The Kipawa Rare Earths Project is located within, and has the potential to significantly affect, the shared traditional territories of our two First Nations. As Algonquin First Nation Governments who represent the Algonquin rights & title holders to the area of the Project and to areas that may be affected by the Project, our duty is to protect our lands, waters and environment for our present and future generations. We are encouraged by the federal decision of April 2, 2013, to undertake an environmental assessment of the Project and welcome the opportunity to comment on the draft EIS guidelines. The deep concern of our two First nation communities about the potential impacts of this project on their socio-economic well-being and on their traditional lands and waters has been shown in two community meetings with the Proponent, Matamec. We insist that the Guidelines for the Environmental Assessment and for Terms of Reference for a Panel, should one be established, be worked out in a nation to nation fashion. 2.1 Environmental Assessment as a Planning Tool Although this section appropriately includes reference to important concepts including the precautionary approach and sustainable development, there is adequate elaboration of these concepts for the proponent to integrate these concepts into the EIS. We recommend the inclusion of sustainability criteria as have been included in other EISs notably those for the Whites Point Quarry, Kemess North and Voiseys Bay review panels. We suggest the following be added to Section 2.1: A project that is supportive of sustainable development must strive to integrate the objective of net ecological, economic and social benefits to society in the planning and decision-making process and must incorporate citizen participation. 1

The extent to which the project assists or inhibits the creation of healthy resilient communities will be assessed. The project, including its alternative means, must take into account the relations and interactions among the various components of the ecosystems and communities and their ability to meet the needs of present and future populations. The proponent must include in the EIS consideration of the extent to which the Project contributes to sustainable development. In doing so, the proponent should consider, in particular: o The extent to which biological diversity and ecological functions may be affected; o The capacity of renewable resources that are likely to be significantly affected by the Project to meet the needs of present and future generations; o The equitable distribution of benefits and costs in the near-term (i.e. life of project) o Inter-generational equity in the distribution of costs and benefits in the long-term. The Precautionary Principle informs the decision-maker to take a cautionary approach, or to err on the side of caution, especially where there is a large degree of uncertainty or high risk. The Proponent shall consider the guiding principles set out in the Framework for the Application of Precaution in Sciencebased Decision Making About Risk (Government of Canada, 2003)1

2.3 Aboriginal consultation This section should to reference the Canadian and international requirements for consultation and obtaining the Free Prior and Informed Consent (FPIC) of Aboriginal peoples. We recommend adding the following to Section 2.3: The proponent will demonstrate how it has contributed to meeting the obligations for the Duty to Consult as per Section 35 of the constitution, and the extent to which it has met requirements of the UN Declaration on the Rights of Indigenous Peoples, including Article 32 regarding obtaining the Free Prior Informed Consent of Indigenous Peoples prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.2

The language in 2.3 requiring the proponent to make reasonable efforts to integrate traditional Aboriginal knowledge needs to be strengthened. This is an absolute requirement in our view and this text should be changed to read:

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From the EIS Guidelines for the Prosperity Copper-Gold Mine, page vi-vii. UNDRIP Article 32. 2

The proponent will integrate traditional Aboriginal knowledge in the the assessment of environmental impacts, including the determination of significance of any effects identified.

3.3 Integration of EA, Aboriginal and public consultation information The language in the first sentence in Section 3.3. must be changed to read as follows: the proponent will integrate Aboriginal and public consultation outcomes 3.4.2 Community knowledge and Aboriginal traditional knowledge The definition of traditional knowledge provided by the Draft Guidelines is overly restrictive and simplistic. TEK is acquired on the land, and requires continuing access to the land. Algonquin land use narratives emphasize experiential learning in mentorship relations with knowledgeable harvesters. From the community perspective, experiential field learning is also a primary mode of cultural transmission. This point was explicitly recognized in R. v Ct (1996) involving Kitigan Zibi (River Desert) Algonquin fishing in ZEC Brascoupe; TEK is based on holistic and integrated understandings of ecosystems as complex interdependencies. It is sensitive to imbalances in local environments, and is used to monitor indicators of ecosystem health. Again, this deeply rooted orientation to the environment is compatible with changes in specific uses of the land, so long as the changes do not significantly threaten sustainability and renewability. EVFN and WLFN concerns about the Matamec project are in line with these traditional understandings as well as with contemporary environmental science. We propose the definition of traditional knowledge be re-drafted to include the following, which has been adapted from the guidelines for the Prosperity Gold Copper Project EIS Guidelines: Traditional knowledge, is rooted in the traditional life of Aboriginal people and has an important contribution to make to the EIS. Traditional knowledge refers to the broad base of knowledge held by individuals and collectively by communities that may be based on spiritual teachings, personal observation and experience or passed on from one generation to another through oral and/or written traditions. This tradition is dynamic, substantive, and distinct living knowledge. Traditional knowledge provides necessary perspective, knowledge and values for the EA process. Traditional knowledge may, for example, contribute to the description of the existing physical, biological and human environments, natural cycles, resource distribution and abundance, long and short-term trends, and the use of lands and land and water resources. It may also contribute to project siting and design, identification of issues, the evaluation of potential effects and their significance, the effectiveness of proposed mitigation, cumulative impacts and the consideration of follow-up and monitoring programs. 3

4 Summary of the EIS Public and Aboriginal engagement should be separated given the distinction between requirements to meet national and international standards for Aboriginal consultation and the different issues that may arise with public vs. Aboriginal consultation. 5.2 Regulatory framework and the role of government The Draft Guidelines are insufficient in their requirements to describe the role of Government. We require additional information on the anticipated role of governments in the project after the EA process, if the project is approved and recommend adding the following to the guidelines. The EIS will described the role of government in permitting the project and ongoing monitoring and oversight of the project should it be approved at this stage. The capacity of governments to undertake the above should be described (e.g. the number and location of inspectors, current budgets available etc.)

5.5 Purpose of the project The EIS should address the questions raised by the 2002 Mines Minerals and Sustainable Development (MMSD) Project3 in Seven Questions for Sustainability, which states: If there is a fundamental question underneath all others, it is the question of whether societyor the worldneeds any given project or operation. A significant debate has emerged regarding what would constitute a full needs assessment. The debate encompasses mining and minerals, but also covers all other interventions in the natural environment as welldams, irrigation projects, highways, pipelines, and even urban expansion. The question arises because of growing concern that current human activity is undermining the capacity of future generations to meet its needs. This concern is a central driver of the sustainability/sustainable development set of concepts and the issue is very simple: Why do something that is undermining the capacity of future generations? In market economies, governments accept the proponents feasibility study along with their willingness to invest as a demonstration of need. If the proponent believes that a market exists for the product, need is established. For its part, the proponent will consider existing and projected demand and supply (as reflected in commodity price) and use that value to ascertain project/operation profitability.

The MMSD Project was undertaken in 2001 and 2002 by 23 major mining companies to assess the contribution of the mining industry to sustainable development; its finding have been incorporated by the International Institute of Mines and Metals.

Over the last several decades, a broad sense has emerged that such market-driven decision- making may not always lead to satisfactory results in terms of the resulting human and ecological implications... However, such a sense begs some fundamental questions, including: (1) How, in practice, should a needs assessment that improves on the current approach be undertaken? (2) Whose needs should drive the assessment? and (3) Who should be the judge? These are profound questions of public policy for which there are no simple or widely accepted answers.4 This EIS should take into account the purpose of the project based on net benefits and costs to affected communities. The EIS should examine to what extent Eagle Village and Wolf Lake need this project and how it would relate to alternatives and plans in place that are or could provide opportunities for economic development .

5.7 Project activities A preliminary outline of the closure process is not sufficient for us to determine the medium and long-term consequences of the project and its acceptability. As much detail as possible should be provided. We recommend the Guidelines require the EIS to include: A description of the closure plan that includes enough detail to determine the likelihood of success of plans, the inherent risks in any of the plans and the potential costs to the proponent or government of ongoing care and maintenance of facilities remaining post-closure.

6. SCOPE OF PROJECT The scope of the project as found in the Draft Guidelines is not acceptable and excludes, or at least does not explicitly include, important and necessary components of the project. The Guidelines should include the following within the scope of the project: Development of limestone quarries and borrow pits Road use, construction and upgrades to existing roads The construction of a utility corridor to provide electricity to the project. Exploration drilling, bulk sampling or other forms of exploration with the potential to impact the environment that will occur within the broader project area

With respect to the fourth bullet above, we note that the proponent has expressed intentions of expanding its operations in the vicinity of the project. The exploration required for such expansions should be considered as part of the current review, as exploration activities have been identified as a key disruptor of traditional use of the land by a number of community members.
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MMSD North America. Seven Steps to Sustainability, Page 22.

7.1.2 Effects of potential accidents or malfunctions The probability of accidents and malfunctions should be based on real-world experience from similar operations, not on assumptions or optimistic expectations of the proponent.

7.2.2 Temporal boundaries As the historic and future residents and Indigenous title holders of this land we have a commitment to ensure protection of the land and its resources that extends to many generations. We also note that a recent report5 by the Mine Environment Neutral Drainage Program indicates that most mines with water treatment will require that treatment in perpetuity. The description of the temporal boundaries must therefore include not only the decommissioning and restoration phase of the project but also the post-closure phase, especially with regards to any facilities and wastes that will remain. The text for this section of the guidelines should read: The temporal boundaries of the EA will span all phases of the project: construction, operation, maintenance, foreseeable modifications, and where relevant, closure, decommissioning, restoration and the post-closure period of the project. The post closure period of the project is considered to be more than 100 years/seven generations.

8. Alternative means of carrying out the project. Assessing alternatives is a key aspect of project assessment and the use of the EA process as a planning tool. A full consideration of potential alternatives, transparency in decision making and meaningful integration of input from consultations are key elements of an alternatives assessment. We recommend the following be added to the text for this section. Where plausible alternatives are rejected for further consideration based on economic and technical considerations the information used to make this decision will be presented. In comparing the alternatives, a life cycle assessment approach will be used. In addition to those components listed, the proponent should assess alternatives for hydro corridor to the site.

MEND Report 3.43.1 Review of Mine Drainage Treatment and Sludge Management Operations (March 2013)

9.1 Existing Environment 9.1.1 Methodology The Draft Guidelines reference the requirement for the use of an ecosystem approach but provide little information about this approach. Elsewhere in the Draft Guidelines, what we understand to be an ecosystem approach is not applied consistently. We recommend that the Guidelines include reference to additional guidance on the ecosystem approach that includes: o Consideration of people and communities as part of and dependent on ecosystems. o Examination of the services and functions that emerge from various levels of organization in ecosystems. o Examination of flows of energy and materials through and between ecosystems. o Understanding of the dynamic nature of ecosystems. o A focus on the integrity and resilience of ecosystem health. 9.1.2 Biophysical environment Terrestrial environment Geology and Geochemistry Radiation and potential release of radioactive materials are key concerns for us and the guidelines should be expanded to provide more precise guidance on the requirements of the EIS. We recommend this section of the guidelines include a separate subheading on radiation that would include; An explanation of radiation, the uranium decay chain, the health impacts of radiation exposure and the areas of uncertainty associated with radiation and health studies. Baseline measures of radioactive elements in the air, soil and water at the project site. A description of the concentration of radioactive elements in all geological units at the project site.

The information provided indicates that richterite, edenite and tremolite have been identified in samples from the site. All three of these amphibole minerals, and riebeckite if it is present, can occur in an asbestiform habit. One of our experts indicates that In order to determine whether asbestiform amphibole is present, it is recommended that pulverized material from drill cores containing these amphibole minerals be examined by transmission electron microscopy to determine the aspect ratio distributions of amphibole fibres to determine if asbestiform amphibole is present, and, if so, whether the amount is likely to present significant inhalation hazards...In the case of a new mining and processing operation, once asbestos-forming amphiboles are found to be present, the only way to determine whether asbestiform fibres are likely to occur in dust from the process is to examine samples of pulverized material from a range of typical locations within the deposit. If drill cores containing these amphibole minerals are 7

available from a number of locations in the deposit, it would be possible to design such a study to assess whether asbestiform amphibole fibres are present, and if their concentrations are likely to be of concern. The EIS must describe the presence of asbestiform minerals in all geological units and conduct the above-referenced tests.

Fish and Fish Habitat The fish and fish habitat section is not consistent with an ecosystem approach. This section should include: The productivity and contribution of fish habitat in the project area to regional fish populations (i.e. interconnections between habitat types/areas); this is consistent with an ecosystem approach.

Ecosystems The ecosystems section is not consistent with an ecosystem approach. This section should include a description of ecosystem functions, key drivers of ecosystem function and integrity, resilience of the ecosystems, a description of dynamic ecosystem behaviour and the flows of energy and materials in the ecosystems. 9.1.3 Human environment Health and socio-economic conditions The Draft Guidelines provide little to guide the proponent in describing health and socioeconomic baseline conditions. In fact, the only reference is to a Health Canada site6 which states Socio-Economic Effects. Health Canada does not currently have the expertise to comment on the human-health-related socio-economic impacts of projects. As this is a fundamental area of interest and as socio-economic impacts are the justification for the project, much greater attention should be paid to this aspect of the EIS. In other EAs in Canada and around the world, World Health Organisation Determinants of Health7 are widely recognised as best practice in the field. A 2006 forum and a subsequent publication for the Mackenzie Valley Impact Review Board (MVEIRB), Issues and Recommendations for Social Impact Assessment in the Mackenzie Valley, is currently recognised as State of the Art in Socio-Economic Impact Assessment (SEIA), when it comes to large resource development projects.8 Another important resource that sets out the generally accepted methodology for a Social Impact Analysis is The Canadian Handbook on Health Impact Assessment, Chapter 3: Social Impact
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Footnote: http://www.hc-sc.gc.ca/ewh-semt/pubs/eval/environ_assess-eval/index-eng.php#a14 World Health Organization.Commission on Social Determinants of Health. Closing the Gap in a Generation. Who 2008. 8 http://www.mveirb.nt.ca/upload/ref_library/SEIA_paper.pdf

Assessment in Environmental Impact Assessment Protocols: A Social Science Perspective9, published by Health Canada. The third volume of this Handbook expands on important elements with respect to determinants of health, health indicators, Aboriginal health and traditional knowledge, risk perception, and greater public consideration and community action. Experience has shown that opening of new mines can worsen social and economic problems for vulnerable populations, especially women and Aboriginal peoples. Gender analysis has become a key part of most recent environmental assessments for resource extraction projects (Diavik, Mackenzie Valley, Voiseys Bay and others). The need for specific gender analysis for the Matamec Project can be seen in the great discrepancy between the incomes and earnings of women and men in the region. We recommend that the socio-economic EIS guidelines include (for Aboriginal and nonAboriginals) An analysis of social values in the regions affected by the project An analysis of volunteerism in the regions A gender analysis: analysis of the base line conditions for women, of possible cumulative effects on gender balance and relations, and the mitigation measures to address these effects Analysis of the many organizations that make up community, social and public health services for regional residents: of the agencies fragility and strengths, who they serve and dont serve, where their funding and staff come from, and of their capacity to adapt, for example: the capacity and resiliency of day care and youth services, family violence programs, womens services, and drug and alcohol programs, or mental health programs Analysis of the potential impacts of heightened income disparity in the regions Analysis of shifts in the distribution of political and economic power created by the project Analysis of the possibilities of increased traffic accidents Analysis of the consequences of the loss of mine incomes and contracts post closure, or in the event of an economically induced shut-down

In terms of health risk assessment, the EIS Guidelines should require the aspects of human health that are defined by the World Health Organisation, and include consideration of physical health and well being and associated emotional, social, cultural, and economic aspects. The EIS must provide information on population health of the communities in the regional study area. A description of community and public health services available to the residents of communities and to Aboriginal people in the regional study area must also be included. Aboriginal and community consultation is essential to the Proponent in developing the risk assessment in order to ensure that key information is not missing.

http://www.hc-sc.gc.ca/ewh-semt/pubs/eval/handbook-guide/vol_3/social-sociales-eng.php

A Health Risk Analysis model itself is fraught with unidentified assumptions. Risk assessments of toxins are mathematical exercises, based on well over one hundred different assumptions. A change in any one of these assumptions can have a dramatic effect on the risk estimate. The modelling must be ground-truthed with testing of human or animal tissue to see if the modelling makes sense in the real world. These same criteria should apply to Effects Assessment (vide page 28 of the draft EIS guidelines). 10.1 Environmental Effects 10.1.1 Methodology In describing the results of their effects assessment, the proponent should discuss aspects that contribute to uncertainty in any models and the sensitivity of results to changes in different key variables.

Section 10.1.3 Effects of changes to the environment As with section 9.1.3 Aboriginal use of the land should be assessed with consideration of past, current and potential uses and include aesthetic enjoyment and spiritual practices.

While we appreciate the inclusive requirement to consider any changes to the environment caused by the project, there are at this time certain priority concerns that have been identified by our communities which warrant elaboration in the guidelines. We would be pleased to discuss additional guidance on these concerns with CEAA as the final guidelines are prepared. Specific concerns warranting further elaboration in this section include: Impacts to water quality and aquatic habitats from, for example, metals, nutrients, reagents, suspended solids, thermal changes and hydrologic changes. Storage and release of radioactive elements Toxicology, storage and release of rare earth elements Presence and potential release of asbestiform particles from blasting, the ore, waste rock and tailings. Dust, noise and light pollution. Impacts on sustainable resource uses and enjoyment of our territory including hunting, fishing, trapping and ecotourism. Effects of mine-related traffic and the transportation of hazardous substances. Long-term care and maintenance in the post closure period.

We wish to emphasize that the above list is based on our current understanding of the project and is likely to change as we learn more about it through the EA process.

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10.3 Adverse Impacts on Aboriginal and Treaty Rights and Related Interests Current Use Wolf Lake has done extensive work in documenting historic and current use of our territory Eagle Village less so. As uses change overtime and shift between areas and respond to external factors, the use of the land should not be confined to the current use as future use of the land is an imperative for current and future generations. The use of resources should include a historic element and consider potential future uses of the land. Use of resources should include aesthetic enjoyment (including viewscapes) and the cultural and spiritual importance of accessing, enjoying and using our territory.

11.1 Environmental mitigation 11.1.1 Methodology With regards to the effectiveness of the proposed technically and economically feasible mitigation measures further details should be provided in the guidelines. We expect the guidelines to require the proponent to assess the rate of success of the proposed mitigation measures, where possible based on applied full scale implementation elsewhere. A discussion of failures elsewhere and what caused them and how that can inform the current project should also be provided. In order to assess the risk of failure the likelihood and consequences of failure must be examined.

11.4 Follow up program The follow up program should describe action thresholds for key variables being monitored.

12.1 Residual and cumulative environmental effects This section should specify a preliminary list of potential cumulative effects to be included in the EIS. We have identified the following and will continue to assess the project and may provide additional areas of cumulative effects that are of concern: Historic loss of access to our traditional territory; Increasing demands on fish and game populations; Impacts of climate change on hydrology, wildlife and plant communities.; Changes to natural hydrologic regime and water quality from the construction and operation of dams; Forestry operations;

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Expanded exploration and extraction of rare earth elements that would be stimulated by and make use of the infrastructure of this project. Increased access to our territory due to road construction and upgrades.

13.1 Significance of adverse environmental effects In reaching conclusions about the significance of adverse environmental effects the proponent should integrate any criteria and thresholds identified by the affected Aboriginal peoples.

15.2 Benefits of the project In discussion of the benefits of the project, this section should address net benefits of the project in the context of sustainable development and not be a simple list of the number of jobs and total capital investment for the project. The guidelines should require a net benefit analysis that includes the following: The nature and extent of subsidies and costs associated with the mine from federal, provincial, regional, and municipal governments, including access to water for production, reduced rail fees, tax incentives and allowances, infrastructure support, training and education, costs for environmental assessment, permitting and monitoring, marketing assistance, and road upgrades and maintenance; The amount of capital expenditures that are local and the amount that is spent outside the region, the amounts spent on equipment purchased or manufactured internationally etc. Public subsidy for hydro power for the mine; The cost of increased greenhouse gas emissions; An analysis of the net employment impact and how many employees of the mine will be employed elsewhere at the time of hire; An analysis of actual revenues expected from the mining royalty and from corporate income taxes over the mine life (based on marginal effective tax rate, not statutory rates), analysis of the effects of accelerated Capital Cost Allowances, and Exploration and Development Tax pools on the taxes to be paid; Analysis of the lost opportunity costs for resource users and of the loss of country foods to First Nations, loss of tourism revenues; Analysis of the skimming effect, what happens when local businesses shift their focus to supplying the mine from their current focuses; what will happen to their current customers? Where will these businesses get credit to shift their focus? What happens to them when the construction period ends? When the mine closes either during a bust or at the end of its life? What will happen when their workers go to work at the mine? Analysis of increased costs to federal, provincial, Aboriginal and municipal governments for increased social and health services, including emergency response to potential accidents at the project site, on the roads or at the transfer point;

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Analysis of costs to mine workers their families including job uncertainty, potential health costs (for industrial diseases such as radiation poisoning), effects of commodity price fluctuations on employment, impacts of dangerous drives to the workplace, shift work.

16. Monitoring program and environmental management plans The distinction between a monitoring program and a follow-up program (Sec 11.4) is not clear to us. For this reason we suggest merging section 16 with 11.4. With the exception of our comment above re: action thresholds, the level of detail described in section 11.4 is adequate. We also believe it to be essential that the EIS include a discussion of community involvement in the follow-up/monitoring program and the formation of an independent monitoring committee.

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