Tsawwassen First Nation Written Submission to the Roberts Bank Terminal 2 Environmental Assessment Review Panel

April 15, 2019

Table of Contents

1.0 Introduction ...... 3 2.0 Background: Environmental Assessment process and consultation ...... 3 2.1 Summary of TFN participation in the Environmental Assessment ...... 3 3.0 Expectations regarding consultation ...... 4 3.1 Consultation will be consistent with Tsleil-Waututh v. Canada (Attorney General) ...... 4 3.2 Duty to consult not fully discharged by 2004 Memorandum of Agreement ...... 5 3.3 Assessment to be based on established rights; to occur prior to Panel Review ...... 5 3.4 Government of Canada’s preliminary responses require further collaboration ...... 6 4.0 Summary of TFN’s concerns ...... 6 4.1 Vehicle and rail traffic ...... 6 4.1.1 Traffic volume ...... 6 4.1.2 Invasive species ...... 6 4.2 Marine shipping ...... 6 4.2.1 Risk to fishing vessels ...... 7 4.2.2 Invasive species ...... 7 4.2.3 Accidents or malfunctions ...... 7 4.3 Alternatives considered for the Project ...... 8 5.0 Marine fish and invertebrates ...... 8 5.1.1 Marine fish ...... 8 5.1.2 Marine invertebrates ...... 9 5.2 Marine mammals ...... 10

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5.2.1 Underwater noise ...... 10 5.2.2 Southern Resident Killer Whales ...... 10 5.3 Cultural and knowledge practices ...... 10 5.4 Cumulative effects ...... 10 5.5 Migratory birds ...... 11 5.6 Wildlife ...... 11 5.7 Nighttime light conditions ...... 11 5.8 Marine water quality ...... 12 5.9 Human health ...... 12 5.9.1 Marine and land resources ...... 12 5.9.2 Air quality ...... 12 5.9.3 Noise pollution ...... 13 5.9.4 Storm pollution ...... 13 5.10 Geomorphology and sedimentation ...... 14 5.11 Marine vegetation ...... 14 5.12 Mitigation measures ...... 14

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1.0 Introduction

This document represents the written submission of Tsawwassen First Nation (TFN) to the Review Panel, as provided for in the Public Hearing Procedures of the Environmental Assessment (EA) of the Roberts Bank Terminal 2 project (the Project) proposed by the Fraser Port Authority (VFPA, the Proponent).

TFN is a modern treaty First Nation under the terms of the Tsawwassen First Nation Final Agreement (the Final Agreement), a tri-partite comprehensive land claim and self-government agreement between TFN, Canada and . The Final Agreement, which came into effect on April 3, 2009, establishes a new government-to-government relationship based on mutual respect, providing the basis for reconciliation between TFN and the Crown.

Under the Final Agreement, TFN owns in fee simple and has lawmaking authority over Tsawwassen Lands, which comprise approximately 662 hectares of former reserve and Crown land. As of January 2019, the population of Tsawwassen Members is 483, 42% of whom (205 Members) reside on Tsawwassen Lands. Tsawwassen Lands are also home to an estimated 600 residents who are not Tsawwassen Members.

In addition to defining Tsawwassen Lands, The Final Agreement sets out Tsawwassen treaty rights within Tsawwassen Territory, which includes areas of Roberts Bank, the Fraser River, the Fraser River estuary, Pitt Lake, the Pitt River, the Serpentine River, the Nicomekl River, Boundary Bay and the Gulf Islands. Within Tsawwassen Territory, Tsawwassen Members have fishing, hunting, migratory bird harvesting and plant gathering rights in defined areas, and the right to practice Tsawwassen culture. The fundamental relationship between Tsawwassen Members and the lands, waters and resources of Tsawwassen Territory is evident in the word Tsawwassen itself, which means ‘land facing the sea’.

2.0 Background: Environmental Assessment process and consultation

2.1 Summary of TFN participation in the Environmental Assessment The Project area is located within Tsawwassen Territory, including the Tsawwassen Fishing Area, and may reasonably be expected to adversely affect Tsawwassen Lands or Tsawwassen treaty rights. TFN is therefore participating in the EA in accordance with Chapter 15 of the Final Agreement.

TFN has been an active participant in the EA to date. TFN’s submissions to the Review Panel include:

• Comments on EA Determination – October 16, 2013 (CEAR 41) • Comments on Terms of Reference – September 19, 2014 (CEAR 127) • EIS Completeness Review – June 15, 2015 (CEAR 231) • Orientation Presentation – September 16, 2016 (CEAR 546) • Comments on Sufficiency of the EIS – October 27, 2016 (CEAR 651) • Response to Review Panel Undertakings – December 5, 2016 (CEAR 898) • Independent Crab Study – June 12, 2017 (CEAR 997) • Crab Abundance and Movement Study Addendum – December 20, 2017 (CEAR 1132) • Comments on Sufficiency of Information Request Responses – October 5, 2018 (CEAR 1316) • Comments on Sufficiency of Information Request Responses – February 2, 2019 (CEAR 1461)

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This written submission is based on the comments, concerns and questions raised to date by TFN through the aforementioned submissions, and in meetings with the Proponent and federal departments and agencies. This written submission also addresses the Government of Canada’s preliminary response to TFN’s comments, concerns and questions, which were provided to TFN on April 12, 2019 in the form of a Draft Issue Tracking Table (ITT).

In addition to this written submission, TFN intends to participate in the public hearing through the other means identified in the Public Hearing Procedures. This includes making oral submissions to the Review Panel, and TFN may also ask questions of the Proponent and other Participants.

Finally, TFN notes that the timing of the Public Hearing overlaps with the consultation process on the proposed Trans Mountain Expansion Project, another major federal project in Tsawwassen Territory. This has placed a major strain on TFN’s capacity to engage meaningfully in both processes.

3.0 Expectations regarding consultation

3.1 Consultation will be consistent with Tsleil-Waututh v. Canada (Attorney General) Chapter 2 of the Final Agreement sets out Canada’s and British Columbia’s consultation obligations in respect of TFN. Among other things, Canada and British Columbia must adhere to consultation obligations that may be required under the common law in relation to an infringement of a constitutionally-protected Tsawwassen right. In that respect, TFN is guided by the direction of the Federal Court of Appeal in Tsleil-Waututh Nation v. Canada (Attorney General), 2018 FCA 153 (Tsleil- Waututh), with respect to what is considered proper and adequate consultation. TFN expects that the RBT2 EA, including the public hearing, will be fully guided by the legal principles enunciated in that decision. Tsliel-Waututh is yet another case in a long line of cases that confirms – and now gives more precision – to the common law duty to consult.

The duty to consult is grounded in the honour of the Crown, and the protection provided for “existing aboriginal and treaty rights” in subsection 35(1) of the Constitution Act, 1982. The duties of consultation and, if required, accommodation form part of the process of reconciliation and fair dealing (Haida Nation v. British Columbia, [2004] S.C.R. 511, at para 32; Tsleil-Waututh, at para 486). The duty arises when the Crown has actual or constructive knowledge of the potential existence of Indigenous rights or title and contemplates conduct that might adversely affect those rights or title (Haida Nation at para. 35; Tsleil-Waututh at para 487).

The common law regarding the duty to consult also applies to Treaty (Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), [2005] 3 S.C.R. 388), and to modern treaty First Nations (Beckman v. Little Salmon/Carmacks First Nation, [2010] 3 S.C.R 103).

The extent or the content of the duty of consultation is fact specific. The depth or richness of the required consultation increases with the strength of the prima facie claim and the seriousness of the potentially adverse effect upon the claimed right or title (Haida Nation, at para 30; Rio Tinto Alcan Inc. v Carrier Sekani Tribal Council, [2010] SCC 43, at para 36; Tsleil-Waututh, at para 488). When a strong prima facie case for the claim is established, the right and the potential infringement is of high significance to Indigenous peoples, and the risk of non-compensable damage is high, the duty of consultation lies at the high end of the spectrum (Tsleil-Waututh, at para 489).

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Where deep consultation is required, a dialogue must ensue that leads to a demonstrably serious consideration of accommodation (Tsleil-Waututh, at para 501). The Crown is also obliged to inform itself of the impacts to rights (Tsleil-Waututh, at para 503). Consultation must focus on rights – including treaty rights. Mitigation measures must provide a reasonable assurance that constitutionally protected rights were considered as rights themselves (Tsleil-Waututh, at para 504).

In order to say that consultation is said to have been reasonably implemented, there has to be a mutual understanding on the core issues and a demonstrably serious consideration of accommodation by the Crown (Tsleil-Waututh, at para 549). Proper consultation requires Canada to engage in a considered, meaningful two-way dialogue (Tsleil-Waututh, at para 558).

Canada must demonstrate that it not only hears but also gives serious consideration to the specific and real concerns Indigenous peoples put to Canada, give serious consideration to proposed accommodation measures, and explain how the concerns of the Indigenous peoples impacted Canada’s decision to approve the project (Tsleil-Waututh, at para 563).

The Court in Tsleil-Waututh noted that, where an Indigenous group raises concerns that are specific and focussed, those concerns are easy for the Crown to discuss, grapple with and respond to (Tsleil- Waututh, at para 763). In the case of TFN, below, we have set out specific and focussed concerns, which we expect will be discussed, grappled with and responded to by the Crown, before a decision on the approval of the Project is given.

3.2 Duty to consult not fully discharged by 2004 Memorandum of Agreement TFN has twice written to the Review Panel regarding the 2004 Memorandum of Agreement (MOA) between TFN and the VFPA. On October 27, 2016 (CEAR 151) and February 8, 2019 (CEAR 1461), TFN said that it does not regard the MOA as discharging the federal and provincial Crowns’ duties to consult given that the Project as now proposed is significantly different from the works described in the MOA. In addition to the new location and reconfiguration of the current proposed Project compared to that set out in the MOA, the current proposed Project is also significantly larger in scope than what was initially proposed. TFN was not consulted regarding the changes, including during the Proponent’s assessment of alternative means of carrying out the Project. Consequently, unless otherwise stated, TFN expects ongoing consultation by the Crown and the Proponent regarding impacts of the Project on Tsawwassen treaty rights and accommodation measures.

3.3 Assessment to be based on established rights; to occur prior to Panel Review Tsawwassen treaty rights are enumerated in the Final Agreement and exist regardless of traditional or current use. By extension, the assessment of impacts on Treaty rights resulting from the Project must not be limited to traditional or current use considerations but must also consider potential future use by Tsawwassen Members. Given the need for a clear and transparent methodology for assessing impacts on Treaty rights, TFN supports the request by the Canadian Environmental Assessment Agency (CEAA) for the Proponent to formally adopt a rights-based assessment methodology (CEAR 1137 and CEAR 1439).

TFN understands from CEAA that CEAA intends to work collaboratively with TFN on a final assessment of impacts on Tsawwassen treaty rights. TFN is concerned that the decision to conduct this assessment after the Review Panel report is issued (CEAR 1137 and CEAR 1439) will unnecessarily constrain the

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Review Panel’s work. Instead, TFN believes that the assessment of impacts on Tsawwassen treaty rights should inform the Review Panel’s recommendation on the Project and should therefore occur prior to the publication of the Review Panel report. If not, the Review Panel will have insufficient information to fully discharge it is terms of reference (CEAR 176).

3.4 Government of Canada’s preliminary responses require further collaboration As noted above, Canada has prepared a document, the ITT, containing Canada’s preliminary responses to comments, concerns and questions raised by TFN regarding the Project to date. TFN acknowledges the effort by Canada to prepare the ITT, which is a helpful starting point for assessing impacts to Tsawwassen treaty rights. TFN is also generally satisfied with the way TFN’s comments, concerns and questions are captured in the ITT, although some specific omissions are noted below.

TFN is concerned, however, that federal government departments have not adopted a consistent approach to assessing and responding to TFN’s comments. The comments of Fisheries and Oceans Canada (DFO) appear to simply reiterate the predictions and conclusions of the Proponent. DFO’s responses do not address in any meaningful way the significant concerns raised by TFN, particularly around impacts to crab and crab habitat.

4.0 Summary of TFN’s concerns

The following sections summarize TFN’s ongoing concerns on an issue-by-issue basis and identify TFN’s requests or expectations for next steps. The following is not an exhaustive list of the comments and questions raised to date by TFN, but rather a summary of key outstanding concerns.

4.1 Vehicle and rail traffic 4.1.1 Traffic volume

TFN has concerns about the impacts of increased road and rail traffic through Tsawwassen Lands resulting from the Project. TFN has requested that traffic estimates for the Project include increased traffic associated with development on Tsawwassen Lands, including the Tsawwassen Mills mall. The response by Transport Canada that TFN’s concerns in this regard do not fall under federal jurisdiction is unhelpful. A path forward is needed to address mitigation of traffic impacts that involves the federal and provincial governments. TFN requests that Canada engage with British Columbia and TFN about how to address this issue.

4.1.2 Invasive species

TFN is concerned about the potential for invasive species to be introduced to Tsawwassen Lands as a result of increased vehicle and rail traffic from elsewhere in Canada. Tsawwassen Members have raised concerns that invasive plants are displacing plants used as traditional medicine on Tsawwassen Lands. In terms of mitigation, the Project represents an opportunity to undertake habitat restoration on Tsawwassen Lands to enable the return of native plant species. This could include an inventory of plant species native to Tsawwassen Lands and initiatives to promote their return, including through the control and removal of invasive plants. TFN would like Canada’s support in advancing this idea as a mitigation initiative.

4.2 Marine shipping

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4.2.1 Risk to Tsawwassen fishing vessels

The Project area is located within the Tsawwassen Fishing Area. Tsawwassen Members exercise their treaty right to fish in this area, particularly for crab – a primary traditional food. Commercial crab harvesting may also occur in this area. TFN is concerned that increases in ship traffic and/or vessel size will pose safety hazards to TFN fishing vessels, for example due to collision-related risks. Increased vessel traffic may also inhibit harvesting activities, result in loss of fishing gear, and reduce access to preferred fishing sites.

With respect to mitigation, TFN notes that the Proponent likely has limited capacity to control or otherwise influence the factors that dictate international container shipping volumes and vessel size and therefore cannot offer meaningful mitigation in this regard. TFN also notes, however, that the proposed mitigation for marine traffic risks is predicated on the assumption that TFN fishing vessels need to alter their behaviour in response to the Project, rather than the Project needing to be altered to accommodate Tsawwassen treaty rights and access to preferred harvest areas. This behavioural change will help harvesters ensure safety at sea but cannot properly be considered mitigation because it requires TFN to accommodate the project rather than the project accommodating TFN.

Further dialogue is required to discuss accommodations to TFN.

4.2.2 Invasive species

TFN is concerned about the Project’s potential to introduce invasive species and their associated impacts on traditional and native species of importance to TFN. Neither the Proponent nor Canada, through the ITT, has provided a satisfactory response to this concern. Given experience with invasive species in other areas along BC’s coast, a robust suite of measures for invasive species monitoring, reporting, adaptive management, and control is required. The process must be transparent and, given TFN’s proximity to the facility, must include a meaningful role for TFN and sufficient support for involvement.

4.2.3 Accidents or malfunctions

An accident or malfunction related to marine shipping could have significant adverse impacts on TFN, including on human health, environmental health and economic livelihood. Given the increase in development and shipping in the region, TFN is concerned about response effectiveness should an accident or malfunction occur.

The request to the Proponent by Environment and Climate Change Canada (ECCC; CEAR 1454) regarding modelling is welcome; it will be important for Canada to make sure this modelling includes a release location near the mouth of the Fraser River to understand whether currents and salinity conditions will result in a trajectory up the Fraser River. With respect to proposed mitigation measures, of particular importance to TFN is the collection of Shorezone and pre-SCAT data and the development and testing of Geographic Response Plans (GRPs) for the Fraser River estuary. TFN also requests further detail about the range of goods that will be transshipped through the Project to ensure that emergency plans are suited to all contingencies.

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Chapter 15 of the Final Agreement provides that any Party to the Final Agreement, including TFN, may respond to an environmental emergency on Crown land or Tsawwassen Lands or the bodies of water immediately adjacent to Tsawwassen Lands if the person who has primary responsibility for responding has not responded, or is unable to respond, in a timely way. TFN requests further consultation and accommodation regarding how this right will be operationalized in the context of the Project.

4.3 Alternatives considered for the Project TFN is not satisfied that the full range of alternative means for the Project has been sufficiently analyzed, including the use of the uplands adjacent to the existing terminals to construct a facility for container storage and sorting that would reduce the Project footprint in the intertidal zone. In the Environmental Impact Study (EIS), the Proponent confirms that a land-based intermodal yard (IY) is both technically and economically feasible, yet the Proponent did not include this option in its alternative means effects comparison (section 5.6 of the EIS) so the relative environmental impacts cannot be weighed against cost considerations.

Furthermore, in response to IRI-06 (CEAR 897), the Proponent suggests that the primary impediments to a land-based IY are the need for jurisdictional certainty and a cost-efficient business proposition. The jurisdictional issue, however, can be addressed by securing a third-party commitment to providing the necessary components (i.e. the land does not need to be under the Proponent’s jurisdiction). With respect to the business case, TFN believes the Proponent should be required to undertake an updated, comprehensive analysis, including engagement with surrounding jurisdictions and stakeholders, to verify whether a land-based IY could be reasonably incorporated into the Project, particularly if it would mean reducing impacts relative to the proposed configuration.

TFN also notes that Transport Canada has not “conducted analysis of the project alternatives” (CEAR 982), which further highlights the need for additional and independent consideration of alternative means of carrying out the Project, including a land-based IY.

5.0 Marine fish and invertebrates

5.1.1 Marine fish

TFN is concerned about impacts of the Project on marine fish, including their habitat, and the right of Tsawwassen Members to harvest them, and to access fishing and harvesting areas. Species of concern include salmon, eulachon, and sturgeon. In accordance with the Final Agreement, effects of the Project within the Tsawwassen Fishing Area and Tsawwassen Intertidal Bivalve Fishing Area must be appropriately considered. TFN is also concerned that new and emerging fisheries other than historically harvested markets are not adequately considered, such as lingcod, rockfish, and groundfish. Reductions in rockfish availability may have a negative economic impact on Tsawwassen for potential emerging fisheries.

TFN also feels that impacts to Sockeye salmon have not been adequately considered in the EA, as an indicator species was used instead. Sockeye salmon have always been an important traditional food of TFN and therefore are of deep significance to TFN and central to the wellbeing of Tsawwassen Members. The use of Coho as an indicator species, despite being the most stressed salmon species, does not adequately capture the importance of Sockeye salmon to TFN.

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TFN requests a collaborative process with DFO for any Authorizations required for impacts to fish and fish habitat. This collaboration should commence with the Proponent engaging directly with TFN as it develops final mitigation and offsetting plans are developed. TFN also requests further detailed from DFO regarding the extent to whether the Proponent’s decision to capture impacts on Sockeye salmon by proxy is suitable.

5.1.2 Marine invertebrates

5.1.2.1 Orange Sea Pens

TFN is concerned that studies to date indicate that Orange Sea Pen transplanting has only a moderate likelihood of success and there are no suitable mitigation alternatives.

5.1.2.2 Crab

TFN has significant concerns regarding the Project’s adverse effects on crab and crab habitat and on impacts to the Tsawwassen treaty right to fish for crab. TFN has made comments and raised questions regarding various potential impacts on crab and crab harvesting resulting from Project construction and operation. This includes the loss of crab habitat due to the terminal footprint, impacts of dredging on crab habitat health, and reduced access to crab harvesting opportunities for TFN fishers.

The importance of crab to TFN fisheries has grown in recent years due to the decline of the salmon fishery. This decline is deeply troubling because ensuring access to Fraser River salmon was a key goal for TFN in negotiating the Final Agreement, reflecting the central role of salmon – particularly Sockeye salmon, as noted above – to TFN’s culture, traditions and economy.

Tsawwassen Members have observed significant changes over time in terms of crab abundance on Tsawwassen Lands and in the Tsawwassen Fishing Area. Members were previously able to harvest crab by walking along the foreshore, but this is no longer possible.

TFN is concerned that the Proponent’s EIS underestimates the Project’s effects on crab habitat and hence to TFN’s Food, Social and Ceremonial (FSC) fisheries (i.e. those conducted under the Right to Fish set out in the Final Agreement). TFN commissioned a scientific study to examine crab distribution, crab movement, and crab densities (i.e., catch-per-unit-effort) in relationship to the effectiveness of the Project’s proposal to expand the Roberts Bank Navigational Closure Area (NCA), purportedly for the benefit of protecting and maintaining FSC fishing opportunity. The results of the study were submitted to the Review Panel (CEAR 997). The study concludes that there will be a significant reduction in both optimal and accessible FSC crab fishing area, and that the proposed configuration of the expanded NCA does not appear to adequately offset the loss of FSC fishing opportunity and catch as more fishing area will be lost than gained. Moreover, these losses represent a best-case scenario; if the mitigation measures proposed are less effective than predicted, then TFN will see even greater impacts to its right to fish for crab.

The Proponent has proposed to further consult with TFN on the proposed expansion of the Navigational Closure Area. In TFN’s view, this is a consultation obligation on the Crown, in addition to the Proponent. Moreover, until this consultation has taken place and the final configuration of the expanded NCA is determined, it is unclear to TFN how impacts on its right to fish for crab can be properly assessed. TFN

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also reiterates its concern that DFO has not yet addressed in any meaningful way the significant concerns raised by TFN on impacts to crab. This remains an ongoing, real concern for TFN.

5.2 Marine mammals 5.2.1 Underwater noise

TFN has expressed concerns regarding the effects of underwater noise on biota significant to TFN in the Salish Sea.

5.2.2 Southern Resident Killer Whales

TFN is concerned about the impacts of the Project on marine mammals and the social, cultural and ceremonial values they hold to Tsawwassen Members. Southern Resident Killer whales (SRKW), in particular, have significant and unique cultural values to TFN and are critical for Tsawwassen Members to exercise their right to practice Tsawwassen culture. Although direct impacts associated with the Project may be seen as insignificant, the cumulative effects of development on the Salish Sea will have serious impacts on the outlook of the species due to vessel strikes and underwater noise.

5.3 Cultural and knowledge practices The Project area is located within Tsawwassen Territory and immediately adjacent to Tsawwassen Lands. It would result in the loss of access to at least 117 hectares of Tsawwassen Territory in the Salish Sea. The proposed new terminal will represent a visual barrier for Tsawwassen Members looking out from, or towards, Tsawwassen Lands. The Project will have an immediate effect on TFN’s ability to transmit knowledge across generations. There are words, including geographical names, in hən̓q̓əmin̓əm̓ (the language spoken by Tsawwassen Members) that may lose or change their meaning if they can no longer be associated with specific reference points that were previously visible to Tsawwassen Members.

TFN has raised concerns about whether traditional knowledge has been adequately considered in the EA process. As the EA is a largely Western science-based process, an awareness of the ontological and epistemological differences between Western science and traditional knowledge is critical. An example of these different perspectives is the exclusion of humans from food web analyses, despite the fact that Tsawwassen Members have occupied the Roberts Bank area for more than 4,500 years, subsisting largely on natural resources that are found there. This difference in worldview shapes how the effects of the proposed Project on humans are measured and affects many areas of the assessment, including the scope of review, selection of valued components, methodology of individual EIS components, interpretation of study results, design of mitigation options and interpretation of the measures of success.

TFN appreciates the commitment by Canada, through CEAA, to undertake a rights-based assessment of the Project’s impacts on Tsawwassen treaty rights. As noted above, TFN would prefer to see this assessment carried out in advance of the completion of the Review Panel report on the Project.

5.4 Cumulative effects TFN has significant concerns regarding the cumulative effects of current and potential future development in Tsawwassen Territory. In addition to the Project, there are several other major projects

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proposed in Tsawwassen Territory, including the Trans Mountain Expansion Project. In assessing cumulative impacts related to the Project, TFN supports the use of a pre-1960 baseline, as this would reflect conditions prior to the construction of the ferry and Deltaport terminals, which combined to permanently alter the TFN foreshore. TFN has also expressed concerns that the cumulative effects methodology proposed by the Proponent is not useful in that it restricts the scope of the EA to only cumulative future effects, without taking into account the effect of past or ongoing projects or activities. Consequently, the assessment undertaken by the Proponent represents an incremental assessment rather than a cumulative assessment.

In comparison, TFN welcomes and supports CEAA’s proposed methodology for deepening the cumulative effects assessment methodology; how it is applied will determine its value and strength. TFN looks forward to further dialogue and collaboration with CEAA to ensure a comprehensive cumulative effects assessment is undertaken as part of the rights-based assessment methodology. Again, TFN would rather see this assessment carried out before, rather than after, completion of the Review Panel report.

TFN has long advocated for a cumulative effects assessment conducted on a regional basis for the entire Fraser River Lowland. As responsible, committed stewards of the lands, waters and resources of Tsawwassen Territory, TFN supports such an initiative not only to describe the environmental state of the present situation, but to expand an understanding of where things are along sustainability continua with regard to valued components (VCs) of crucial importance to TFN. It is necessary to quantify existing conditions in relation to such things as (i) the carrying capacity of the environment and (ii) ecological ‘tipping points’ (the latter amounting to a threshold of impact level which if crossed, can spell dire consequences for a given VC). TFN suggests that it would have been preferable to do this type of cumulative effects assessment prior to the Project but nevertheless believes the Project represents a positive opportunity to begin this work.

5.5 Migratory birds TFN is concerned about the impacts on the project on migratory birds and Tsawwassen treaty rights to harvest them. In particular, TFN is concerned that any impacts to migratory bird harvesting constitutes an incremental worsening of overall harvesting ability. As a result, effects of the Project within the Tsawwassen Migratory Bird Harvest Area must be adequately considered.

Any expansion of the 'no-shooting' zones in the Tsawwassen Migratory Bird Harvest Area constitutes an adverse effect on the Treaty right to harvest migratory birds. And while the significance of this loss must be interpreted along with any mitigation, the loss itself must be acknowledged in the EA process.

5.6 Wildlife As with migratory birds, TFN is concerned about the impacts of the Project on the Tsawwassen treaty right to harvest wildlife. If the Project results in an increase in firearms discharge prohibitions, then there will be an additional loss of hunting opportunities for Tsawwassen Members and an impact on Members’ ability to exercise their Treaty harvesting right.

5.7 Nighttime light conditions TFN has expressed concerns regarding the Project’s impacts on nighttime light conditions. TFN appreciates that the proponent has made efforts to present effects on the Bortle scale as requested. TFN disagrees with the proponent’s conclusions that the changes predicted are not significant.

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Brunswick Point represents an island of relative dark in an otherwise heavily lit landscape and it is well- understood that humans and animals require darkness. Change in sky glow at Brunswick Point have the potential to affect human health; cultural practices and knowledge transmission; migratory birds health and TFN harvesting and future economic opportunities associated with site use by amateur astronomers.

TFN believes effects of additional night-time light must be explicitly considered in the assessment of cumulative effects on rights.

Further, TFN agrees with the response by ECCC that further information is needed in terms of how any proposed mitigation measures will be measured.

5.8 Marine water quality TFN is concerned about the impacts on marine water quality from the Project and associated activities, such as ship discharge or dredging activities. TFN agrees with Health Canada’s recommendation that the effects of Project construction on the quality of traditional foods in/near the proposed marine terminal area need to be monitored in consultation with Indigenous groups harvesting from the Project area. This is particularly the case for TFN, given the Project’s proximity to Tsawwassen Lands and areas used heavily by Tsawwassen Members for fishing and harvesting. A traditional foods monitoring program should be informed by the predicted locations of construction-generated sediment plumes and total suspended sediment levels expected during dredging/supernatant discharge, as well as harvesting locations to ensure that traditional foods sampling occurs in appropriate areas (CEAR 579, CEAR 1225, CEAR 1436).

5.9 Human health 5.9.1 Marine and land resources

As the community most immediately adjacent to the Project, TFN has raised concerns about direct and indirect impacts to human health of Tsawwassen Members and residents of Tsawwassen Lands. TFN has expressed doubts about the value of assessing human health at a wider population level, because it risks obscuring or minimizing the significance of local impacts.

An additional concern relates to the human health impacts of consumption of traditional foods sourced from the Project area. Tsawwassen Members, for example, have observed blackened crab harvested from the Project area, raising questions about contamination. TFN notes with concern the response from Health Canada that it is unable to verify the Proponent’s conclusion that the Project will have “negligible” potential effect to cause exposure to shellfish contamination (CEAR 1436). Given the depth of TFN’s concerns, it is TFN’s view that the Proponent should be required to provide an update human health risk assessment.

5.9.2 Air quality

TFN has raised various concerns regarding the potential effects of the Project due to increased emissions and subsequent effects on air quality. A number of concerns remain as follows:

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• TFN is concerned about whether the modelling used for air quality predications is able to represent real world conditions and requests that a more meaningful discussion of uncertainty be provided; and

• TFN is concerned that the omission of PFCs, HFCs, and SF6 in assessing GHGs (CO2, CH4, and NO2 were listed) may underrepresent adverse effects. The Proponent did not provide these data as requested by TFN, nor did it provide a defensible justification for why these data were not provided.

• As emphasized in its information requests, TFN remains concerned that O3 levels currently exceed regulatory standards, with consequent health effects, and the Project will do nothing to

reverse this trend. TFN is therefore concerned about ongoing health issues associated with O3 exceedances. The concern remains whether the method selected by the Proponent is sufficiently conservative.

Health Canada has indicated that it does not accept the Proponent’s predictions that the effects to health from impacts to air quality will be negligible and recommends monitoring to verify the proponent’s predictions. Given that there is suspicion regarding the Proponent’s findings, TFN needs greater assurances that there are clear plans for responding in the event that monitoring confirms Health Canada’s suspicions. To that end, it would make sense for the proponent to be required to define and adaptive monitoring protocol for air issues and to be required to provide for health and air quality initiatives specific to Tsawwassen Members.

5.9.3 Noise pollution

TFN is concerned about the effects of noise pollution on Tsawwassen Members, residents of Tsawwassen Lands, harvesters, and those engaging in recreational activities. TFN is particularly concerned about concerns regarding noise impacts during the night, given that Members already experience sleep interruptions.

TFN notes that Health Canada has taken seriously TFN’s concern regarding low frequency noise and is recommending mitigations for cumulative effects. Health Canada has also taken seriously TFN’s concerns regarding noise effects and recommended additional assessment specific to worst case scenarios to identify effects on experience of the environment.

5.9.4 Storm pollution

TFN has requested that the Proponent assess the effects from a pulse of increased surface runoff not captured by the storm water system at the proposed new terminal or by the widened causeway area; our request is that this assessment include sources from the tug basin and the widened causeway area. TFN has asked that the Proponent include the considerations of the effects from all contaminants from the Project site on human health, the biophysical environment, and the proposed onsite habitat compensation features. TFN also has asked for a description and justification of the techniques and assessments that would be used for detecting and addressing any storm water pollution, particularly as it relates to post-storm marine contamination or human health, and to provide a comparison of these results to applicable water quality standards.

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The response by ECCC supports TFN’s comments. ECCC has requested additional information about water quality effects of storm discharge. Depending on the results of the additional information, there may be a need for detention facilities or other mitigations for managing storm releases.

5.10 Geomorphology and sedimentation TFN has expressed concerns that the Project may change the geomorphology of the area over time, including natural systems and river dynamics of the Fraser River. This would in turn affect the exercise of Tsawwassen treaty rights, including by affecting Tsawwassen Members’ knowledge and language about their home, such as Sheɂsǝmkǝm, meaning “where canoes bumped in the shallow water,” which refers to a navigable channel within Roberts Bank leading to Canoe Passage.

TFN has also raised concerns about increased sedimentation on Tsawwassen Lands, in particular impacts on the foreshore, and the effects of wakes associated with the Project on the erosion of Tsawwassen Lands.

The response by Canada, provided through Natural Resources Canada (NRCan), appears to focus primarily on TFN’s concerns regarding the effects of wakes associated with the Project. TFN’s other concerns related to geomorphology and sedimentation have not been addressed in the ITT.

5.11 Marine vegetation TFN has raised concerns about the impacts of the Project on marine vegetation, particularly the brackish marshes and eelgrass beds of the Fraser River delta. TFN is further concerned about impacts on the Tsawwassen treaty right to gather plants in areas that overlap the Project footprint, including both marine plants and those on the foreshore.

As above, the response by DFO in the ITT appears to reiterate the findings of the Proponent and commit to future consultation with TFN. TFN requests a more detailed assessment by DFO of TFN’s concerns and whether the Proponent’s findings and proposed mitigation measures are sufficient.

5.12 Mitigation measures TFN has raised concerns that the Project’s offset and mitigation plans have not been fully developed by the Proponent. The currently proposed mitigation measures are mainly procedural commitments to continue engaging TFN and other Indigenous groups. While TFN does not expect that full offset and mitigation plans would be completed by the Proponent at this stage, TFN maintains its expectation that the Review Panel will take steps to ensure that those plans will be completed within a reasonable timeframe prior to any approval of the Project.

The development of offset and mitigation plans must include reference to TFN’s constitutionally- protected Treaty rights, incorporating past, current and potential future use by Tsawwassen Members of their resources, lands and waters. In the course of future engagement on offset and mitigation plans, TFN expects that consultation and accommodation will continue to address our concerns satisfactorily, which ought to be a requirement of any approval by the Review Panel for the Project.

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