6735 SALISH DRIVE , B.C. V6N 4C4 TELEPHONE: 604 263-3261 FAX: 604 263-4212

February 11, 2014

Analise Saely Senior Advisor, Canadian Environmental Assessment Agency 701 West Georgia Street, Suite 410 Vancouver, BC, V7Y 1C6

Sent Via Email and Mail: Analise [email protected]

Dear Analise Saely,

Re: Roberts Bank Terminal 2 Project- consultation approach for the federal environmental assessment

Thank you for your letter dated January 7, 2014. For the reasons explained below, Musqueam should be at the high level on the "consultation spectrum" rather than the moderate level as suggested by the Agency. As such, the proposed consultation approach attached to the letter sent to Musqueam on January 7th, 2014 must be revisited in order for Canada to discharge its constitutional obligations to Musqueam and satisfy the honour of the Crown. Further, it is also important that the federal Crown not focus exclusively on the duty to consult but also acknowledge that the duty to consult forms only part of its duties towards Musqueam under the Sparrow decision to justify infringements of Musqueam's established Aboriginal right to fish. Musqueam expects the Crown to satisfy all its duties in this matter and fully reserves all its rights if they are not fulfilled.

The "consultation spectrum" is based on the following passage of the Supreme Court of Canada in Haida:

43 Against this background, I turn to the kind of duties that may arise in different situations. In this respect, the concept of a spectrum may be helpful, not to suggest watertight legal compartments but rather to indicate what the honour of the Crown may require in particular circumstances. At one end of the spectrum lie cases where t he claim to title is weak, the Aboriginal right limited, or the potential for infringement minor. In such cases, the only duty on the Crown may be to give notice, disclose information, and discuss any issues raised in response to the notice. '"[C]onsultation' in its least technical definition is talking together for mutual understanding": T. Isaac and A. Knox, "The Crown's Duty to Consult Aboriginal People" (2003), 41 Alta. L. Rev. 49, at p. 61. 44 At the other end of the spectrum lie cases where a strong prima facie case for the claim is established, the right and potential infringement is of high significance to the Aboriginal peoples, and the risk of non-compensable damage is high. In such cases deep consultation, aimed at finding a satisfactory interim solution, may be required. While precise requirements will vary with the circumstances, the consultation required at this stage may entail the opportunity to make submissions for consideration, formal participation in the decision­ making process, and provision of written reasons to show that Aboriginal concerns were considered and to reveal the impact they had on the decision. This list is neither exhaustive, nor mandatory for every case. The government may wish to adopt dispute resolution procedures like mediation or administrative regimes with impartial decision-makers in complex or difficult cases.

45 Between these two extremes of the spectrum just described, will lie other situations. Every case must be approached individually. Each must also be approached flexibly, since the level of consultation required may change as the process goes on and new information comes to light. The controlling question in all situations is what is required to maintain the honour of the Crown and to effect reconciliation between the Crown and the Aboriginal peoples with respect to the interests at stake. Pending settlement, the Crown is bound by its honour to balance societal and Aboriginal interests in making decisions that may affect Aboriginal claims. The Crown may be required to make decisions in the face of disagreement as to the adequacy of its response to Aboriginal concerns. Balance and compromise will then be necessary.

Applying paragraph 44 of the Haida case and leaving aside fishing rights which are considered below, it is clear that Musqueam has a strong prima facie claim for Aboriginal rights and title in the area of the Project and that the Project will have a significant impact on those rights and this infringement has a high risk of non-compensable damage.

The quotations below from the Sparrow case and ethnographic studies provide a glimpse into the extent of Musqueam's traditional territory and presence in the immediate area of the propose Project area. The Project will have a significant impact on Musqueam's ability to exercise their Aboriginal rights.

Supreme Court of Canada in Sparrow case

In Sparrow, [1990] 1 S.C.R. 1075, one of the leading cases on Aboriginal rights, the Supreme Court of Canada upheld the Aboriginal right of the Musqueam to fish in Canoe Passage and described it part of the Band's ancient tribal territory:

We turn now to the aboriginal right at stake in this appeal. The Musqueam is located on the north shore of the close to the mouth of that river and within the limits of the City of Vancouver. There has been a M usqueam village there for hundreds of years. This appeal does not directly concern the reserve or the adjacent waters, but arises out of the Band's right to fish in another area of the Fraser River estuary known as Canoe Passage in the South Arm of the river. some 16 kilometres (about 10 miles) from the reserve. The reserve and those waters are separated by the Vancouver International Airport and the Municipality of Richmond.

The evidence reveals that the Musqueam have lived in the area as an organized society long before the coming of European settlers, and that the taking of salmon was an integral part of their lives and remains so to this day. Much of the evidence of an aboriginal right to fish was given by Dr. Suttles, an anthropologist, supported by that of Mr. Grant, the Band administrator. The Court of Appeal thus summarized Dr. Suttles' evidence, at pp. 307-308:

Dr. Suttles was qualified as having particular qualifications in respect of the ethnography of the Indian people of which the Musqueams were one of several tribes. He thought that the Musqueam had lived in their historic territory, which includes the Fraser River estuary, for at least 1,500 years. That historic territory extended from the north shore of to the south shore of the main channel of the Fraser River. including the waters of the three channels by which that river reaches the ocean .

... the correctness of the finding of fact of the trial judge "that Mr. Sparrow was fishing in ancient tribal territory where his ancestors had fished from time immemorial in that part of the mouth of the Fraser River for salmon" is supported by the evidence and was not contested. [Emphasis added].

Ethnographic Reports The Musqueam presence in the area of Westham Island, Canoe Passage and Ladner area is supported by ethnographic reports such as the following reports of Rozen and Suttles:

Rozen, David.1979. Lower Planning Study: Ethnographic Sites in the Regional District. Report submitted to Heritage Conservation Branch, Archaeology Division.

Suttles, Wayne.2004 Musqueam reference grammar. Vancouver: UBC Press.

Both Rozen and Suttles referred to Musqueam place names associated with Westham Island and the channels between the island and Brunswick Point on the south bank of the Fraser River: see Rozen at 56; Suttles at 574.

With regard to Canoe Passage, Rozen mentioned a "place for cutting [cat-tails]", which he stated was located on the south side and utilized by the Musqueam. Suttles gave a place name for a location in the middle of Canoe Passage: at574. His Musqueam informant, Arnold Guerin, advised him that the name derived from "the practice of cutting rushes to let salmon pass through."

Another Musqueam camping site named by Rozen on the south arm of the Fraser River was located in the Ladner area: see page 56. Suttles also recorded a place name for this location: see page574.

These references in ethnographic reports are supported by Musqueam oral history.

Musgueam's Aboriginal Right to Fish

So far as fishing rights are concerned, it is very important to keep in mind that Musqueam has not just an asserted Aboriginal right to fish in the area but a right established in the Sparrow decision of the Supreme Court of Canada and so protected by section 35 of the Constitution Act 1982. Under the Sparrow decision, the duty to consult is merely a part of the duty of the Crown to justify infringement of an established Aboriginal right. There are other requirements such as satisfaction of the special trust relationship, minimal infringement and compensation. Musqueam expects the Crown to fully respect all these obligations and not just the duty to consult. It is very important to keep in focus the extent of the duties to justify infringement of the right to fish established in Sparrow and not be misled by an exclusive focus on the Haida duty to consult for rights not yet established. This is an issue that Musqueam has repeatedly brought to the attention of the provincial and federal Crown and their agencies such as Port Metro Vancouver.

In view of Musqueam's established Aboriginal right to fish, the list of that falls under Section 3 of the Proposed Consultation Work Plan causes concern to Musqueam. The only First Nation that has a claim to be consulted at the same level as Musqueam would be First Nation based on their treaty rights. The other First Nations have asserted and not established rights. The level of consultation with Musqueam must be deeper.

Sincerely,

Chief Wayne Sparrow Musqueam Indian Band