Project Reference Number: 80054 Responsible Authority: Canadian Environmental Assessment Agency Proponent: The Vancouver Fraser Port Authority WRITTEN SUBMISSIONS OF TSARTLIP FIRST NATION April 15, 2019 To: Review Panel, Roberts Bank Terminal 2 Project 160 Elgin Street, 22nd Floor Ottawa ON K1A 0H3 Email: [email protected]. {00217226.1} Page 1 1. INTRODUCTION Tsartlip First Nation (“Tsartlip”) is a Participant in this Public Hearing (the “Hearing”). Tsartlip is part of the W̱ SÁNEĆ (Saanich) Nation, which is itself part of the larger group of peoples known as Coast Salish. Tsartlip’s territory includes the lands and waters of the W̱ SÁNEĆ Peoples, and range from the Saanich Inlet to the mouth of the Fraser River and through the Salish Sea around Mayne Island and south to San Juan Island. Tsartlip is a successor to the Saanich Tribe, and their members are descendants of the signatories to the Douglas Treaties. Tsartlip has constitutionally protected Aboriginal and Treaty rights throughout W̱ SÁNEĆ territory, which includes the Douglas Treaty rights to hunt and fish as formerly (the “Rights”). The Salish Sea is a diverse and complex marine ecosystem. It includes vulnerable areas that are important to Tsartlip, including but not limited to: • Tsartlip’s numerous cultural, wildlife and fishing areas; • The Gulf Islands National Park Reserve; • Boundary Bay Wildlife Management Area; and • Roberts Bank Wildlife Management Area, The Salish Sea has suffered and will suffer significant and potentially irreversible ecological consequences as a result of increasing development, including from shipping traffic, significant human use, pollution, and climate change. These consequences have in turn impacted the ability of Tsartlip members to practice their constitutionally guaranteed Rights in the area. The effects of the increased shipping related to the Roberts Bank Terminal 2 Project (“RBT2” or the “Project”) will have significant adverse effects on the environment and Tsartlip’s Rights. Tsartlip takes the position that these significant effects are unjustified and would be a major threat to its Rights. 2. POSITION OF TSARTLIP 2.1 Procedural considerations Tsartlip views the hearing process as fundamentally unfair and contrary to the principles of natural justice. First, there is a significant disparity in resources between the Vancouver Fraser Port Authority (“VFPA” or “Proponent”) and many of the Participants, including Tsartlip. The funding allocated by the CEAA Participant Funding Program is woefully inadequate to enable Tsartlip to fully consider and respond to all of the relevant (to Tsartlip) aspects of this Project, many of which are of a scientific or technical nature. {00217226.1} Page 2 Second, the hearing schedule is such that there is both insufficient time and capacity to properly consider the large volume of material. Finally, the process is flawed in that no participants are allowed to cross-examine the Proponent or its representatives. The Hearing schedule mandates a review of RBT2 that is too constrained to appreciate the effect that this Project will have on Tsartlip's uniquely vulnerable natural environment. 2.2 Approving the Project and its related marine shipping will make an already serious situation irreversibly worse. The RBT2, if approved, will generate at least 260 new calls per year, which means an increase of 520 movements per year (one call equals two movements – one inbound and one outbound) even assuming a decrease in calls as the size of vessels increase. This constitutes a 68% to 143% increase in yearly shipping capacity in the Port of Vancouver by 2040, in addition to the substantial increase in monthly marine shipping related to the Trans Mountain Pipeline Expansion Project (“TMX”), along the shipping route through Tsartlip’s territory. The VFPA estimates that smaller ships will be replaced by larger ships and that 65% of the container ships will be in the 8,000 to 10,000 TEU range by 2030. If approved, the RBT2 would be constructed to accept ultra-large ships, which are anticipated to have as much as 20,000 TEU capacity. The impacts of RBT2 and its marine shipping on the Rights of Tsartlip is difficult to quantify but we expect it to be significant given the increase in tanker traffic. Tsartlip has already suffered impacts to its ability to practice these rights as a result of increased shipping traffic, pollution, and other restrictions. To this point, Tsartlip notes a lack of transparency about whether cooperation exists between the Panel and the National Energy Board (NEB) as required by section 16 of the Canadian Environmental Assessment Act, 2012 (CEAA 2012), which reads: If two designated projects are closely related and the responsible authority with respect to each of them is different, each responsible authority must cooperate with the other with respect to the exercise of their respective powers and the performance of their respective duties and functions under this Act in relation to the projects. Instead, both the NEB in relation to the TMX and the Panel in relation to RBT2 have declared associated marine shipping to be beyond the control of the respective Proponents. However, it is important to note that the proposed Project’s effects would be felt as they occur: not in isolation, but in the full context of all development on and in the Salish Sea. This Project and its marine shipping, considered in full view of the TMX and its project-related shipping, would overburden the Salish Sea with marine shipping. Such shipping is only likely to increase as markets and industry grow. For example, Amazon’s new shipping warehouse in Delta is likely to rely heavily on RBT2 to meet its global marine shipping needs. {00217226.1} Page 3 2.3 W̱ SÁNEĆ Douglas Treaty rights are a sufficient basis upon which to deny approval of the Project. The British Columbia Court of Appeal in Saanichton Marina Ltd. v. Claxton, 1989 CarswellBC 61, [1989] 3 CNLR 46 found the protection afforded to the W̱ SÁNEĆ Nations by the Douglas Treaty provided them with a basis for objecting to the development of the proposed marina, and the marina was not allowed on the basis that it would interfere with their fishery. Similarly, Tsartlip takes the position that RBT2 and its marine shipping will derogate from the right of the W̱ SÁNEĆ to carry on their fisheries as formerly in the area which is protected by the Douglas Treaty. The Project will limit and impede Tsartlip member’s right of access to areas required to exercise their protected Rights. Further, they will not be able to carry on fishing as formerly due to the environmental and physical impacts from RBT2 – both due to construction and shipping. In short, RBT2 will have a negative impact on the Rights guaranteed to the W̱ SÁNEĆ by treaty and enshrined under section 35 of the Constitution Act, 1982. At the Hearing of this matter, Tsartlip witnesses will explain to the Panel how the Project impacts the use of their territory, and interferes with the exercise of their Rights. The adverse environmental effects that the Project will cause are significant and not justifiable in the circumstances. The Panel, in the administration of CEAA 2012, must exercise its powers in a manner that protects the environment and human health and applies the precautionary principle. In 2013, the Supreme Court articulated the precautionary principle as follows: …[the precautionary principle] recognizes that since there are inherent limits in being able to determine and predict environmental impacts with scientific certainty, environmental policies must anticipate and prevent environmental degradation.1 In Tsartlip’s submission, the evidence provided today and at the community sessions about the Project impacts on fisheries, Southern Resident Killer Whales and Tsartlip’s Rights will reflect adverse environmental effects that are not justifiable in the circumstances. In such circumstances, the Panel, acting properly and applying the precautionary principle, should not approve the Project. 1 R. v. Castonguay Blasting Ltd., 2013 SCC 52 at para 20, citing O. McIntyre and T. Mosedale, "The Precautionary Principle as a Norm of Customary International Law" (1997), 9 J. Envtl. L. 221, at pp. 221-22 and 114957 Canada Ltée (Spray-Tech, Société d'arrosage) v. Hudson (Ville), 2001 SCC 40, [2001] 2 S.C.R. 241 (S.C.C.), at paras. 30-32). {00217226.1} Page 4 3. TSARTLIP’S DIRECT EVIDENCE Tsartlip’s evidence in this Hearing consists of this Written Submission, the Trailmark Report and TUS referenced below, oral submissions, and submissions made by Tsartlip and its representatives during upcoming Community Sessions. Tsartlip intends on calling five witnesses, one of whom is expected to be Peter Evans of Trailmark Systems. 3.1 TUS Evidence Tsartlip has filed as evidence with this submission the Tsartlip Marine Use Report for the TMX Re-Hearing by Trailmark Systems (the “Trailmark Report”), dated December 5, 2018. The bulk of the report is relevant to RBT2 as the Trailmark Report focuses on Tsartlip’s traditional and current use of the area in the proposed Project shipping lanes. As such, Tsartlip adopts as evidence in this proceeding the entirety of the Trailmark Report, with the exception of Section 1.0 (describing the TMX project), and specific portions of section 5.0 entitled “Douglas Treaty Rights” (page 33), “Process” (pages 33-34) and “Accidents and Malfunctions: Spill Response”, to the extent those passages specifically reference oil spills and/or focus on the NEB Process. The Trailmark Report explains the history and makeup of the W̱ SÁNEĆ, which includes Tsartlip, and its connection to the oceans that surround its traditional territory. It discusses the 1852 signing of the Douglas Treaty, which provided W̱ SÁNEĆ with certain Treaty rights, including the right to “hunt and fish as formerly”. The Report describes the deep, spiritual relationship between W̱ SÁNEĆ peoples and their “relatives of the deep”, namely the fish and mammals that inhabit the ocean.