February 7, 2017
Cowichan Nation Alliance
Delivered by email:
Dear Mr. Eamon Gaunt,
Thank you for the ongoing participation of the Cowichan Nation Alliance in the federal environmental assessment of the proposed Roberts Bank Terminal 2 Project (the Project). I am writing to respond to the letter from the Cowichan Nation Alliance letter of March 3, 2014, to which was brought to my attention by Penelakut First Nation in January 2016. I apologize for the delay in responding.
Request for a Reassessment of the Preliminary Depth of Consultation
As requested by the Cowichan Nation Alliance, the Canadian Environmental Assessment Agency (the Agency) has reconsidered the preliminary depth of consultation assessment for Penelakut, Cowichan Tribes, Halalt and Stz’uminus as members of the Cowichan Nation Alliance. The depth of consultation assessment is an iterative process based on two main factors: (i) potential or established Aboriginal rights; and (ii) potential adverse impacts of a project on those rights. This preliminary assessment allows the Agency to determine the appropriate depth of consultation with specific groups in the context of a proposed project assessment, and the consultation activities that are commensurate with that depth. The depth of consultation is revisited throughout the environmental assessment and may be revised as new information is acquired.
For the first factor, the Agency seeks to gain a high-level understanding of the nature and extent of potential or established Aboriginal rights (i.e. on a spectrum of weak asserted rights to strong established rights) that may be affected by the proposed project. The second factor is the key element in assessing depth in the context of an environmental assessment. The Agency considers both the likelihood of potential impacts and the seriousness of those impacts (i.e. low, moderate or serious). The interaction between the two factors allows the Agency to make a preliminary determination of the appropriate depth of consultation for each group. This determination can take a number of factors into consideration, including, but not limited to, status of treaty negotiations, certainty or likelihood of potential impacts, historic or cumulative effects, ongoing court cases, or recent court decisions.
In your letter, the Cowichan Nation Alliance provided additional information about the exercise of the fishing rights of the Penelakut, Cowichan Tribes, Halalt and Stz’uminus communities at the Project location and at the mouth of the Fraser River. In addition, Penelakut has provided additional information to the Agency through consultation meetings and letters related to the exercise of Penelakut’s asserted rights in the Salish Sea, Gulf Islands and Lower Fraser River, including in and around Roberts Bank. Penelakut noted that this information should be considered for the preliminary strength of claim assessment for the other Hul'qumi'num groups.
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At this stage of the environmental assessment process, the analysis conducted by the Agency when considering the nature and extent of asserted Aboriginal rights does not involve a detailed and legal strength of claim assessment. Rather, the Agency seeks to identify relevant information regarding the exercise of asserted rights for the purposes of consultation during the environmental assessment process. In doing so, the Agency does not carry out a detailed assessment or come to conclusions about the merits or validity of that information. It is important to note that consultation is not a rights determination process, and the information on which the Agency’s approach to consultation is based has not been tested in a litigation context.
In addition to the information provided in your March 3, 2014 letter and the information from Penelakut regarding the environmental assessment for the proposed Project, the Major Project Management Office, acting as the Crown Consultation Coordinator for the Kinder Morgan Trans Mountain Expansion Project, has shared its view that for the purposes of consultation on that project and associated marine shipping, Penelakut, Cowichan Tribes, Halalt and Stz’uminus have a prima facie strong claim to asserted rights within portions of the marine shipping route, and a weak claim in other areas.
The Crown also acknowledges that the Tsawwassen First Nation has established treaty rights in the geographic area of the Roberts Bank Terminal 2 Project, including the marine shipping route associated with the Project. In addition, Musqueam has an Aboriginal right to fish for food and ceremonial purposes in the geographic area of the Roberts Bank Terminal 2 Project, as established in the 1990 R. v. Sparrow decision.
Taking into account the Agency’s preliminary understanding of the strength of claim and potential seriousness of adverse impacts of the Project and associated shipping set out below, the Agency has made a policy decision to revise its preliminary depth of consultation assessment and consult with Penelakut, Cowichan Tribes, Halalt and Stz’uminus at the deeper end of the consultation spectrum. This policy decision was also communicated directly to Penelakut in the September 15, 2016 letter from the Agency. Further information on how to access additional funding through the participant funding program will be provided in the near future.
Potential Impacts of the Project and Associated Marine Shipping on Penelakut, Cowichan Tribes, Halalt and Stz’uminus
In your letter of March 3, 2014, you also raised concerns about potential impacts of the Project on Penelakut, Cowichan Tribes, Halalt and Stz’uminus’ exercise of rights. The Crown’s preliminary assessment of potential impacts from the Project includes the following considerations: • Long-term impacts may occur from the following project components/activities: o Construction of the marine terminal, berth pocket, tug basin expansion and expanded causeway (including dredging, disposal at sea); and o Various operations activities (maintenance dredging; effluent discharges; spills and leaks; increased shipping, road and rail traffic).
• Potential impacts to the asserted right to fish may result from the following environmental effects of the Project: o Direct loss of marine aquatic habitat (eelgrass, mud flats, biofilm); www.ceaa-acee.gc.ca www.acee-ceaa.gc.ca 2
o Changes to intertidal and delta foreshore areas; o Changes to coastal geomorphology and water quality; o Uptake and bioaccumulation of contaminants by marine species; o Changes to predator-prey dynamics; and o Indirect effects from increased underwater noise, ship wakes and currents.
• Potential impacts to the asserted right to hunt may result from the following environmental effects from the Project: o Direct loss of marine foraging habitat; o Indirect changes to marine food sources; o Increased predation risk; and o Sensory disturbances.
• Potential long-term impacts to the asserted right to gather plants may result from environmental effects such as loss or contamination of vegetation.
• Potential effects to human health may result from the following environmental effects from the Project: o Changes to regional air quality; and o Uptake of contaminants from country foods. In addition, the following impacts on potential or established Aboriginal or Treaty rights may occur from marine shipping associated with the Project: • Environmental effects to marine species: • Ability to access fishing areas; • Impacts to fishing gear; • Safety concerns; • Potential contamination of fish and other marine species that are consumed (from the shipping and from accidents & malfunctions); • Impacts on cultural and spiritual practices due to reduced fishing, hunting or harvesting resources: • Connection to the lands and water; • Impacts on governance systems and trade and barter between Nations; • Impacts to shoreline based cultural sites from increased vessel wake; • Disturbances that may displace members from one First Nation practicing Aboriginal rights within their traditional territory into the territory of another First Nation; and • Cumulative effects related to the above.
The Agency encourages you to bring any concern to the attention of the Review Panel as the process continues. Please note that through the panel process, the Crown has asked the Panel to consider requesting further information with respect to potential impacts of the Project and marine shipping associated with the Project on the exercise of Aboriginal rights. Please see registry document #526.
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Thank you for your ongoing participation in the environmental assessment of the Project, and do not hesitate to contact me should you have any questions or concerns.
Sincerely
Analise Saely
Cc: David Grace, British Columbia Environmental Assessment Office [email protected] Bryan Nelson, Vancouver Fraser Port Authority
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Ph:
Hwlitsum First Nation Halalt First Nation
Cowichan Tribes March 3, 2014 Analise Saely Senior Advisor Canadian Environment Assessment Agency 701 West Georgia St. Suite 410 Vancouver BC V7Y 1C6
Dear Ms. Saely:
Re: Proposed Roberts Bank Terminal2 Project (RBT2) -Approach for the Federal Environmental Assessment.
I write on behalf of the Cowichan Tribes, acting with the alliance of the Stz'uminus, Penelakut, Hwlitsum and Halalt communities (the 'Cowichan Nation Alliance'). I write further to your letters of January 14, 2014 regarding the above noted matter.
The Canadian Environmental Assessment Agency has long been in the possession of cogent Cowichan Nation Alliance evidence relating to the area of the proposed RBT2 (e.g. via its joint assessment with British Columbia of the Vancouver Airport fuel delivery project). So has the proponent Port Metro Vancouver. That evidence demonstrates that the area of the proposed RBT2, as well as the south arm of the Fraser River, was a traditional Cowichan Nation fishing §round prior to, at and continuing after first European contact in the early 1790s through into the 201 century. Indeed, the current aboriginal communal fishing licenses issued annually by Fisheries & Oceans Canada to Cowichan Nation Alliance communities continue to authorize use of the proposed RBT2 area for multiple present-day Cowichan Nation Alliance fisheries (e.g. all salmon, herring, crabs).
The Cowichan Nation Alliance has an exceptionally strong and demonstrable aboriginal right to fish (and hunt waterfowl of) the waters proposed for the RBT2 project, as well as nearby waters (e.g. the south arm of the Fraser River). The proposed RBT2 Project stands to take up rightful Cowichan Nation harvesting grounds, and disrupt the pathways of migratory fish (and birds) depended upon in river (e.g. salmon). The Cowichan Nation Alliance expects that the Canadian Environmental Assessment Agency forthwith adjust its consultation (and accommodation) approach to the deepest form as required by law.
Cowichan Tribes c. Chief William Seymour, Cowichan Tribes; Chief John Elliott, Stz'uminus; Chief Earl Jack, Penelakut Tribe; Chief Rocky Wilson, Hwlitsum; Chief James Thomas, Halalt