Hearing Order OH-001-2014
NATIONAL ENERGY BOARD
IN THE MATTER OF the National Energy Board Act, R.S.C. 1985, c. N-7, as amended, (the “NEB Act”) and the Regulations made thereunder;
AND IN THE MATTER OF an Application dated December 16, 2013, by Trans Mountain Pipeline ULC, as General Partner of Trans Mountain Pipeline L.P. (collectively, “Trans Mountain”) for a certificate of public convenience and necessity and other related approvals pursuant to the NEB Act (the “Application”) for approval of the Trans Mountain Expansion Project (the “Project”);
AND IN THE MATTER OF National Energy Board Hearing Order OH-001-2014 dated April 2, 2014 and National Energy Board File Number OF-FAC-OIL-T260-2013-03-02 Hearing Order OH-001-2014.
WRITTEN ARGUMENT OF THE T’SOU-KE NATION
January 12, 2016
INDEX
PART I INTRODUCTION
PART II T’SOU-KE NATION A. The Stickleback People B. T’Sou-ke Aboriginal Title i. Importance of T’Sou-ke’s Territory ii. Territory includes the Marine Environment iii. Stewardship over the Territory C. Douglas Treaty D. B.C. Treaty Commission E. T’Sou-ke Aboriginal Rights i. Rights to Harvest ii. Rights to Marine Navigation and Travel iii. Rights to Traditional Knowledge, Culture and Way of Life iv. Right to Self-Governance v. Exercise of Rights across the Territory F. Impacts to T’Sou-ke Rights i. Current Baseline – Existing Impacts ii. T’Sou-ke’s Continuous Use and Occupation
PART III PROJECT IMPACTS TO T’SOU-KE A. The Project B. Impacts to Aboriginal Title C. Impacts to Rights to Harvest D. Impacts to Rights to Marine Navigation and Travel E. Impacts to Rights to Traditional Knowledge, Culture and Way of Life F. Impacts to Right to Self-Governance
PART IV REGULATORY FRAMEWORK A. Board’s role under the NEB Act B. Board’s role under the CEAA 2012
PART V LEGAL DEFICIENCIES WITH THE BOARD’S REVIEW OF THE PROJECT A. Failure to Ensure that Project is Adequately Described B. Failure to Sufficiently Identify Project-Related Issues C. Failure to Conduct Fulsome Environmental Assessment i. Failure to Include Marine Shipping in the Designated Project ii. Failure to Adequately Assess Risks of Oil Spills, Accidents and Malfunctions iii. Failure to Take into Account T’Sou-ke’s Traditional Knowledge iv. Failure to Assess Effects on T’Sou-ke’s Rights v. Failure to Adequately Identify and Assess Mitigation Measures
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PART VI INADEQUACY OF CROWN CONSULTATION A. Crown’s Duty to Consult Triggered by the Board’s review of the Project B. T’Sou-ke’s Strong Claims to Aboriginal Title and Rights C. Potential for Serious Impacts to T’Sou-ke’s Aboriginal Title and Rights D. Deep Consultation Required E. Lack of Crown Consultation to Discharge its Constitutional Duties to T’Sou-ke
PART VII REQUESTED RELIEF
PART VIII DRAFT TERMS AND CONDITIONS
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PART I INTRODUCTION 1. The T’Sou-ke Nation (“T’Sou-ke”) is a First Nation located on the southwest coast of Vancouver Island. The Project, if approved, will result in a significant increase in volume of large oil carrier vessels transiting directly through the heart of T’Sou-ke’s Traditional Territory, including the marine waters therein. These waters, and the adjacent foreshore areas, are of critical importance to T’Sou-ke’s knowledge, use and occupancy, and its continued ability to maintain its constitutionally protected Aboriginal title, rights and interests (the “Rights”).1
2. T’Sou-ke is deeply concerned that the increase in oil carrier vessel traffic associated with the Project, as well as accidents and malfunctions from those vessels, has the potential to significantly adversely affect and infringe its Rights. T’Sou-ke is concerned that the Project, on its own and in combination with other existing and proposed activities, will contaminate its Territory, interfere with the exercise of its Rights, and impact its members’ spiritual connection to their Territory, their physical well-being, and their identity as a Coast Salish people. This is of particular concern due to the extent of existing impacts on T’Sou-ke’s Rights and Traditional Territory, and its active stewardship efforts to restore the ecosystems therein.
3. As a party directly affected by the Project, T’Sou-ke was granted intervenor status in the regulatory review process being undertaken by the National Energy Board (the “Board”). T’Sou-ke has an important role to play in this process based on its unique understanding and perspective on:
(a) the nature and scope of its Rights;
(b) the potential for the Project to adversely impact these Rights;
(c) the level and extent to which the Crown has discharged its constitutional duties to it in respect of the Project; and
(d) the appropriate way in which its Rights can be accommodated.
4. No other intervenor or party can meaningfully test Trans Mountain’s evidence from this Aboriginal perspective and with this unique and valuable traditional knowledge.
5. In reviewing the Application, the Board has specific duties under both the NEB Act and the Canadian Environmental Assessment Act, 2012 (the “CEAA 2012”).
6. The Board’s role under the NEB Act entails making a recommendation as to whether or not a certificate of public convenience and necessity (the “Certificate”) should be issued for the Project, taking into account the needs of the present and future public convenience and necessity.
1 Exhibit C359-4-15 – T’Sou-ke Nation – Traditional Marine Resource Knowledge and Use Study Report (May 26, 2015) (A4L5U3), 9.
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7. Under the CEAA 2012, the Board is a responsible authority with specific duties associated with the conduct of the environmental assessment (“EA”) of the “designated project”. This includes scoping and process decisions, and an evaluation of the significance of adverse environmental effects of the Project. Further, as the Board is best- placed to receive Aboriginal concerns, and to integrate those into the design and structure of the EA, it also tasked with carrying out the procedural aspects of the Crown’s section 35 consultation duties while fulfilling its role under the CEAA 2012.
8. Based on its review of the Application and its participation in the regulatory review process, T’Sou-ke has identified the following serious concerns:
(a) the Project has not been adequately described, and as such, the actual carrying capacity of the Project, including the oil carrier vessel traffic it triggers, has not undergone proper scrutiny;
(b) the Project-related issues have not been sufficiently identified, resulting in an exclusion of the main areas of concern to T’Sou-ke which are based on Project impacts on its Rights;
(c) marine shipping activities have not been properly included in the EA under the CEAA 2012;
(d) the EA is deficient in its assessment of risks of oil spills, accidents and malfunctions, and appropriate mitigation measures;
(e) the EA is fundamentally deficient in that it fails to assess the impacts of the Project on T’Sou-ke’s current use of lands and resources for traditional purposes and, more generally, on its Rights; and
(f) there has been an overall lack of Crown consultation with T’Sou-ke, including on key decisions in the regulatory process.
9. These serious concerns have resulted in a legally deficient regulatory review process for the Project, which renders any approvals highly vulnerable to a legal challenge that could ultimately threaten the viability of the Project. To address these concerns , T’Sou-ke recommends that the Board adopt a remedy that tackle these failings in a real, practical, effective and fair manner.
10. T’Sou-ke acknowledges that this situation has resulted, in part, as a result of decisions made by the previous government. There is, however, an opportunity to change course and correct these legal errors.
11. T’Sou-ke respectfully submits that the appropriate remedy in these circumstances is to require the Crown to carry out consultation prior to proceeding further with the proposed government conduct, specifically, granting the Certificate for the Project. Concurrently, significant portions of the EA remain outstanding, and must be addressed before any decision or recommendations are made on the Application. Further work is required to achieve a true reconciliation of T’Sou-ke Aboriginal interests and its pre-existing society
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with the assertion of Crown sovereignty and the interests of the broader society. On an immediate basis, Canada must take steps to initiate consultation with T’Sou-ke in relation to the EA and how the Project may adversely impact T’Sou-ke’s Rights.
PART II T’SOU-KE NATION A. The Stickleback People 12. T’Sou-ke is a Coast Salish Nation that has inhabited the northwestern coast of North America for thousands of years, with oral tradition indicating that T’Sou-ke has resided within its traditional territory since time immemorial.2 T’Sou-ke’s traditional territory, which includes the land, air, and water therein, extends beyond its reserve lands from approximately Beechey Head to the east and Port Renfrew to the west, north to the Koksilah River and south towards the United States, including the Northern Straits (otherwise known as the Juan de Fuca Strait) and Secretary Island (collectively, the “Territory”).3
13. The name “T’Sou-ke” emphasizes the connection that T’Sou-ke has to its Territory and the resources therein. It is derived from a Straits Coast Salish word for the rare and endangered stickleback fish that is found at the mouth of the Sooke River, near one of T’Sou-ke’s ancestral village sites.4
14. At one time, T’Sou-ke, along with other Coast Salish communities, had some of the highest population densities in North America.5 Unfortunately, these numbers were decimated as a result of the influx of settlers and the introduction of foreign diseases that spread throughout First Nation communities in the mid to late 1800’s.6 Nevertheless, T’Sou-ke continues to hold Rights to its Territory and remains dedicated to maintaining its traditional way of life, traditional knowledge and distinctive culture.7
15. T’Sou-ke is a “band” under the Indian Act, RSC 1985, c I-5, and its members are “aboriginal peoples of Canada” within the meaning of s. 35 of the Constitution Act, 1982.
2 Exhibit C359-4-15 – T’Sou-ke Nation – Traditional Marine Resource Knowledge and Use Study Report (May 26, 2015) (A4L5U3), 19; Exhibit C359-4-2 – T’Sou-ke Nation – Sworn Affidavit of Chief Gordon Planes (May 26, 2015) (A4L5T0), 8. 3 Exhibit C359-4-2 – T’Sou-ke Nation – Sworn Affidavit of Chief Gordon Planes (May 26, 2015) (A4L5T0), 8, 14. 4 Exhibit C359-4-15 – T’Sou-ke Nation – Traditional Marine Resource Knowledge and Use Study Report (May 26, 2015) (A4L5U3), 19; Exhibit C359-4-2 – T’Sou-ke Nation – Sworn Affidavit of Chief Gordon Planes (May 26, 2015) (A4L5T0), 1. 5 Exhibit C359-4-15 – T’Sou-ke Nation – Traditional Marine Resource Knowledge and Use Study Report (May 26, 2015) (A4L5U3), 19. 6 Exhibit C359-4-15 – T’Sou-ke Nation – Traditional Marine Resource Knowledge and Use Study Report (May 26, 2015) (A4L5U3), 21. 7 Exhibit C359-4-15 – T’Sou-ke Nation – Traditional Marine Resource Knowledge and Use Study Report (May 26, 2015) (A4L5U3), 76.
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16. Today, T’Sou-ke has approximately 258 members, with 132 members living on reserve.8 The majority of these members reside on the larger reserve of Sia-o-Sun along the Northern Straits.9 T’Sou-ke’s second reserve is located in the Sooke Basin and houses T’Sou-ke’s administrative offices, pre-school and daycare.10 T’Sou-ke also maintains permanent houses and regularly used campsites and picnic sites along the coastal areas of the Northern Straits, as well as in the Sooke Harbour and Basin.11
17. Although T’Sou-ke‘s traditional language, Sencoten, is not currently spoken fluently by any T’Sou-ke members, it remains of key importance to T’Sou-ke. As explained by T’Sou-ke Chief Gordon Planes:
Now, the picture that looks in the dark setting is right off the front of my house, off Siaosun. Siaosun in our language means the sounds the pebbles make when they’re being washed up on our shores and that sound I hear in the morning when I get up of the rocks sweeping down on the beach.
And those words that come to us when we’re growing up is a way for us to identify and also to be able to take care of the environment, be able to take care of the food source and to be able to make sure there’s going to be something there for tomorrow.12 (Emphasis added.)
18. T’Sou-ke has taken several initiatives to revive its language. These include an online education program called First Voices, and the incorporation of the Sencoten language teachings into its Sum-SHA-thut Lellum preschool and childcare program.13 These efforts to reinvigorate the Sencoten language remain at high risk, however, due to the direct reliance of language retention on cultural continuity, which depends on T’Sou-ke members’ abilities to continue to access their Territory to meaningfully exercise their Rights.14
B. T’Sou-ke Aboriginal Title i. Importance of T’Sou-ke’s Territory
19. T’Sou-ke holds Aboriginal title to its Territory, including the land, waters and resources therein. As explained by Chief Gordon Planes:
8 Exhibit C359-4-15 – T’Sou-ke Nation – Traditional Marine Resource Knowledge and Use Study Report (May 26, 2015) (A4L5U3), 14, 23. 9 Exhibit C359-4-15 – T’Sou-ke Nation – Traditional Marine Resource Knowledge and Use Study Report (May 26, 2015) (A4L5U3), 23. 10 Exhibit C359-4-15 – T’Sou-ke Nation – Traditional Marine Resource Knowledge and Use Study Report (May 26, 2015) (A4L5U3), 23. 11 Exhibit C359-4-15 – T’Sou-ke Nation – Traditional Marine Resource Knowledge and Use Study Report (May 26, 2015) (A4L5U3), 69. 12 Hearing Transcript, Volume 19 (November 24, 2014), para 9532-9533. 13 Exhibit C359-4-15 – T’Sou-ke Nation – Traditional Marine Resource Knowledge and Use Study Report (May 26, 2015) (A4L5U3), 23. 14 Exhibit C359-4-15 – T’Sou-ke Nation – Traditional Marine Resource Knowledge and Use Study Report (May 26, 2015) (A4L5U3), 23.
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[...] when you look at the rivers and the places where we had our resources of the salmon coming back to the river and how we fished, we took it out of the mouth of the river where we live and up on a Kwl-Uchun spring salmon place, what they call the Potholes today.
Granny said it’s the place where the spring salmon give themselves back to Mother Earth, and I think with that statement alone those places up there in the park, it’s a CRD park, but you see those places belong to us because we always took care of them.
In a legal context, those are ours. Those places where we fished at the mouth of the river are ours. Those places where we had the fish trap was ours; those places out in the middle of the straits of Northern Straits is ours.15(Emphasis added.)
20. The source of T’Sou-ke’s Aboriginal title lies in both its occupation of its Territory prior to British sovereignty (including construction of dwellings thereon and regular use of tracts of lands and waters therein for the exercise of its Aboriginal rights) and its pre- existing system of Aboriginal law.16
21. As part of its assessment of the Project, T’Sou-ke retained the Firelight Group to complete a traditional marine knowledge and use study in relation to the Project footprint (the “Traditional Marine Knowledge and Use Report”). This study is an expression of T’Sou-ke’s traditional knowledge and records the ways that T’Sou-ke members use, understand, and value marine areas and resources. The Traditional Marine Knowledge and Use Report documents the oral histories, recollections of Aboriginal life and continued use of the Territory and resources offered by 33 T’Sou-ke members (representing 13% of its current population).17 The areal focus of this study was the portion of the Territory covered by the Project’s regional study area to permit an assessment by T’Sou-ke of potential impacts of the Project on its current use of lands and resources for traditional purposes, and more generally, on its Rights.
22. The Traditional Marine Knowledge and Use Report demonstrates that T’Sou-ke’s current occupation has its origins prior to sovereignty, which has continued through to the present.18 It also evidences the special bond that T’Sou-ke has with its Territory, and the central significance of its Territory to its distinctive culture.19
15 Hearing Transcript, Volume 19 (November 24, 2014), paras 9566-9588. 16 Delgamuukw v. British Columbia, [1997] 3 SCR 1010 [Delgamuukw], paras 148-149. 17 Exhibit C359-4-15 – T’Sou-ke Nation – Traditional Marine Resource Knowledge and Use Study Report (May 26, 2015) (A4L5U3), 45. 18 Delgamuukw, paras 101, 145 (British sovereignty over British Columbia was conclusively established by the Oregon Boundary Treaty of 1846). 19 Delgamuukw, paras 94, 128, 143.
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23. This central significance of Aboriginal title to culture has been recognized by the Supreme Court of Canada as follows:
The aboriginal interest in land will generally have an important cultural component that reflects the relationship between an aboriginal community and the land and the inherent and unique value in the land itself which is enjoyed by the community.20
24. As indicated in the Traditional Marine Knowledge and Use Study, the Territory is of critical importance to T’Sou-ke’s knowledge, use and occupancy, and the continued ability of its members to meaningfully exercise their Rights.21 T’Sou-ke’s Rights remain intricately connected to the land and waters within its Territory from which its culture, heritage, language and traditions both arose and continue to be relied on for long-term preservation.22 As expressed by Chief Gordon Planes:
Our relationship to our Territory, as expressed by our asserted title and rights, makes us who we are. The health of our people, the vibrancy of our culture, and the welfare of our children are inextricably linked to the well-being of our lands and waters. We depend on our Territory for more than a place to live and a source of food: it is the place from which we became the First Nation that we are. Our territory is our identity.23(Emphasis added.)
25. T’Sou-ke’s Territory also contains specific sites where its members transfer traditional knowledge and skills to younger generations. These include important burial sites, ancestral village sites, camping areas, midden sites and spiritual sites.24 The ability to continue cultural practices at these essential sites within the Territory enforces T’Sou- ke’s connection with its history and culture.25
26. T’Sou-ke’s relationship with its Territory is essential to the health and vibrancy of its members and culture.26 As discussed above, this connection goes beyond being a place to live and a source of food; it also serves as the cornerstone of T’Sou-ke’s unique tradition, distinctive culture and core identity.27 To quote Chief Gordon Planes: “it is the place from which we became the First Nation that we are.”28
20 Osoyoos Indian Band v. Oliver (Town), [2001] 3 SCR 746, 2001 SCC 85, para 46. 21 Exhibit C359-4-15 – T’Sou-ke Nation – Traditional Marine Resource Knowledge and Use Study Report (May 26, 2015) (A4L5U3), 96. 22 Exhibit C359-4-2 – T’Sou-ke Nation – Sworn Affidavit of Chief Gordon Planes (May 26, 2015) (A4L5T0), 75. 23 Exhibit C359-4-2 – T’Sou-ke Nation – Sworn Affidavit of Chief Gordon Planes (May 26, 2015) (A4L5T0), 3. 24 Exhibit C359-4-15 – T’Sou-ke Nation – Traditional Marine Resource Knowledge and Use Study Report (May 26, 2015) (A4L5U3), 71. 25 Exhibit C359-4-15 – T’Sou-ke Nation – Traditional Marine Resource Knowledge and Use Study Report (May 26, 2015) (A4L5U3), 71. 26 Exhibit C359-4-2 – T’Sou-ke Nation – Sworn Affidavit of Chief Gordon Planes (May 26, 2015) (A4L5T0), 3. 27 Exhibit C359-4-2 – T’Sou-ke Nation – Sworn Affidavit of Chief Gordon Planes (May 26, 2015) (A4L5T0), 3. 28 Exhibit C359-4-2 – T’Sou-ke Nation – Sworn Affidavit of Chief Gordon Planes (May 26, 2015) (A4L5T0), 3.
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“We are as much a part of the water as we are a part of the land.”29
27. T’Sou-ke is a marine-based Nation whose traditional way of life depends on an intimate knowledge and use of the marine resources within its Territory.30 For T’Sou-ke members, the marine and inland ecosystems are “intimately connected”.31 As explained by Chief Gordon Planes:
If you ever want to know the size of a traditional territory you’ve got to look at the water [...]
But I can say to this day that that water that flows from Weeks Lake to Sooke Lake, all of those Smokehouse Lakes in our area, that’s how you determine our traditional territory, and when that water flows down into the ocean it is a part of who we are. So if it’s saltwater or freshwater it is all -- to us it’s both the same. [...]
So in closing, I want to leave it at that and just to know that that water in front of my house overlooking Northern Straits is the same as the mountains up in the smokehouse lakes.32 (Emphasis added.)
28. T’Sou-ke members learn early in life “everything from ocean currents to seasonal bird migrations, to where to find and harvest a variety of species.”33 When describing what the marine environment means to their lives, T’Sou-ke members often point to an old T’Sou-ke adage which states that “when the tide is out the table is set.”34
29. The marine ecosystem is central to T’Sou-ke sustenance and continues to hold such importance today.35 As explained by one T’Sou-ke traditional knowledge holder:36
I mean, it’s our livelihood. ... It’s a key element in our diet, is out seafood, shellfish. Everything. All the way to the plants and medicinal plants and berries and everything in our ecosystem, in our territory.
29 Exhibit C359-4-2 – T’Sou-ke Nation – Sworn Affidavit of Chief Gordon Planes (May 26, 2015) (A4L5T0), 2. 30 Exhibit C359-4-15 – T’Sou-ke Nation – Traditional Marine Resource Knowledge and Use Study Report (May 26, 2015) (A4L5U3), 37; Exhibit C359-4-2 – T’Sou-ke Nation – Sworn Affidavit of Chief Gordon Planes (May 26, 2015) (A4L5T0), 2, 3. 31 Exhibit C359-4-15 – T’Sou-ke Nation – Traditional Marine Resource Knowledge and Use Study Report (May 26, 2015) (A4L5U3), 37. 32 Hearing Transcript, Volume 19 (November 24, 2014), paras 9572, 9574, 9593. 33 Exhibit C359-4-15 – T’Sou-ke Nation – Traditional Marine Resource Knowledge and Use Study Report (May 26, 2015) (A4L5U3), 37. 34 Exhibit C359-4-15 – T’Sou-ke Nation – Traditional Marine Resource Knowledge and Use Study Report (May 26, 2015) (A4L5U3), 37. 35 Exhibit C359-4-15 – T’Sou-ke Nation – Traditional Marine Resource Knowledge and Use Study Report (May 26, 2015) (A4L5U3), 37. 36 Exhibit C359-4-15 – T’Sou-ke Nation – Traditional Marine Resource Knowledge and Use Study Report (May 26, 2015) (A4L5U3), 37.
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30. As discussed above, the importance of the marine ecosystem, which has sustained T’Sou- ke members for generations, extends beyond providing nourishment and is intimately connected with T’Sou-ke’s cultural identity.37 For instance, salmon is utilised not only for food but also for sacred seasonal ceremonies.38 The act of fishing for salmon also has many communal aspects, which bring families together, supports community ties, provides spiritual guidance, and facilitates the transfer of T’Sou-ke knowledge and culture to younger generations.39 The cultural aspects of fishing thus represent an integral part of ensuring the continuity of T’Sou-ke’s distinct culture and traditions.
31. The ability to fish within its Territory is also connected with T’Sou-ke’s independence. T’Sou-ke members have highlighted “the importance of being able to harvest food for themselves rather than having to rely on food from the store, for economic and health reasons.”40 These reasons highlight the critical significance of the health of the local marine environment to T’Sou-ke.
32. T’Sou-ke rock face carvings (petroglyphs) that depict salmon and seals remain in culturally significant locations across its Territory, including at T’Sou-ke village sites along the Northern Straits.41 These ancient carvings illustrate the longstanding marine culture that has maintained T’Sou-ke within its Territory since time immemorial.
33. T’Sou-ke’s Territory does not arbitrarily end partway into the Northern Straits (at the invisible Canada-United States border), but instead extends across the entire span of the Northern Straits.42 This fact is supported by T’Sou-ke’s maintenance of kinship ties with tribes in the United States.
34. In addition, T’Sou-ke is a party to the Point-No-Point Treaty with the United States, which was signed on January 26, 1855. This treaty provided for “reservations and “usual and accustomed” harvesting grounds”.43 The fact that the American colonists entered into a treaty with T’Sou-ke clearly illustrates how extensively T’Sou-ke used the entire span of the Northern Straits, both within Canada and south into the United States.44
35. The existence of Aboriginal water rights has also recently been considered by Canadian courts. In Saik’uz First Nation and Stellat’en First Nation v. Rio Tinto Alcan Inc., the BC Court of Appeal heard claims made by two Nechako Nations against a hydro dam operator, which claims were based on nuisance and breach of riparian rights. In its decision, for which leave to appeal to the Supreme Court of Canada was later dismissed,
37 Exhibit C359-4-2 – T’Sou-ke Nation – Sworn Affidavit of Chief Gordon Planes (May 26, 2015) (A4L5T0), 4. 38 Exhibit C359-4-2 – T’Sou-ke Nation – Sworn Affidavit of Chief Gordon Planes (May 26, 2015) (A4L5T0), 4. 39 Exhibit C359-4-2 – T’Sou-ke Nation – Sworn Affidavit of Chief Gordon Planes (May 26, 2015) (A4L5T0), 4; Exhibit C359-4-15 – T’Sou-ke Nation – Traditional Marine Resource Knowledge and Use Study Report (May 26, 2015) (A4L5U3), 55. 40 Exhibit C359-4-15 – T’Sou-ke Nation – Traditional Marine Resource Knowledge and Use Study Report (May 26, 2015) (A4L5U3), 55. 41 Hearing Transcript, Volume 19 (November 24, 2014), para 9504. 42 Hearing Transcript, Volume 19 (November 24, 2014), para 9524. 43 Exhibit C359-4-2 – T’Sou-ke Nation – Sworn Affidavit of Chief Gordon Planes (May 26, 2015) (A4L5T0), 10. 44 Exhibit C359-4-2 – T’Sou-ke Nation – Sworn Affidavit of Chief Gordon Planes (May 26, 2015) (A4L5T0), 10.
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the Court observed that a similar kind of riparian rights associated with ownership in fee simple attaches to Aboriginal title lands adjacent to water:
[...] Although Aboriginal title is not the same as title in fee simple at common law, it is arguable that a similar kind of riparian rights associated with ownership in fee simple attach to Aboriginal title to lands adjacent to water. While the Water Act purports to vest all fresh water rights in the Province, it is arguable that, as asserted in the notice of constitutional question served by the Nechako Nations, this legislation is constitutionally inapplicable to the extent it purports to extinguish riparian rights held by them prior to the enactment of the Water Privileges Act, 1892. In my view, therefore, it is not plain and obvious that the pleading in connection with the claim for interference with riparian rights, to the extent it is based on Aboriginal title, discloses no reasonable cause of action.45 (Emphasis added.)
36. Notably, both of T’Sou-ke’s reserves were confirmed by the Joint Reserve Commission in 1877, before the enactment of the Water Privileges Act, 1892 referred to in the above excerpt. Based on these dates, it is arguable that current legislation that purports to vest all fresh water rights in the Province is inapplicable to T’Sou-ke’s previously existing water rights.
37. At common law, riparian rights include the right to access the water, the right of drainage, rights relating to the flow of water, rights relating to the quality of water, and rights relating to the use of water.46 This reflects T’Sou-ke’s own understanding and traditional knowledge regarding its rights to its Territory, including to both the freshwater and marine waters contained therein. As stated by Chief Gordon Planes, “if it’s saltwater or freshwater it is all -- to us it’s both the same”. In other words, as the marine waters are connected to the waters that flow in the streams, it matters not what the salt content or hydrological description is of specific waters – it is the watershed as a whole that comprises T’Sou-ke’s Territory and to which it holds extensive Rights, including Aboriginal title.47
38. The coastal location of T’Sou-ke’s reserves also highlights its deep connection to, and reliance on, the marine environment within its Territory.48 Concurrently, the small size of T’Sou-ke’s reserves (as compared to other land-bound Nations) reflects the Joint Reserve Commission’s observation at the time of reserve creation of T’Sou-ke’s significant use of the marine environment within its Territory.49
45 Saik’uz First Nation and Stellat’en First Nation v. Rio Tinto Alcan Inc., 2015 BCCA 154 (leave to appeal to the Supreme Court of Canada dismissed) [Saik’uz and Stellat’en] at para 59. 46 Saik’uz and Stellat’en, at para 43. 47 Hearing Transcript, Volume 19 (November 24, 2014), paras 9572, 9574, 9593. 48 Exhibit C359-4-2 – T’Sou-ke Nation – Sworn Affidavit of Chief Gordon Planes (May 26, 2015) (A4L5T0), 2. 49 Exhibit C359-4-15 – T’Sou-ke Nation – Traditional Marine Resource Knowledge and Use Study Report (May 26, 2015) (A4L5U3), 21; Exhibit C359-4-2 – T’Sou-ke Nation – Sworn Affidavit of Chief Gordon Planes (May 26, 2015) (A4L5T0), 2.
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39. This is not to say, however, that T’Sou-ke’s heavy reliance on the marine environment negates its reliance on the land-based portions of its Territory, which lands, and the freshwater lakes and resources therein, also play a vital role to its distinctive culture and Aboriginal title. As explained by Chief Gordon Planes: “the mountains [...] were our gardens”.50 Similarly, the lakes within the Territory play a vital role to T’Sou-ke’s culture:
But in saying this, the heart of our traditional territory is what made us strong and water is very important to our people, to the Smokehouse Lakes. And the lakes in our territory are called smokehouse lakes because that’s the place where we smoke the deer meat after our hunt and brought it back for winter storage. And the Sooke Lake is the -- one of our major number one smokehouse lakes.51 (Emphasis added.) iii. Stewardship over the Territory
40. At the core of T’Sou-ke’s cultural identity lies its stewardship responsibility which it views as an integral part of its relationship with its Territory; this responsibility stems from a duty to protect and sustain its Territory for future generations, which includes protecting the long-term sustainability of harvesting and land use practices therein.52:
41. In exercising its stewardship duties, while concurrently seeking to maintain its ability to continue exercising its Aboriginal harvesting rights, T’Sou-ke has sought to carefully monitor resource use within its Territory. For instance, in light of the moratorium on abalone harvesting, T’Sou-ke now monitors its Territory to ensure that visitors properly observe this moratorium.53
42. T’Sou-ke actively plays a stewardship role to protect the environment in its Territory and to restore the health of the ecosystems therein to the higher standard that its ancestors once enjoyed. Some examples of T’Sou-ke’s stewardship initiatives include:54
(a) T’Sou-ke Wasabi Project – T’Sou-ke is currently growing over 15,000 plants of wasabi to earn an income to purchase additional greenhouses and learn about large scale greenhouse growing. The ultimate goal is to use greenhouses to grow traditional T’Sou-ke foods.
(b) T’Sou-ke Ocean Energy Project – T’Sou-ke is undertaking a project to accumulate ocean energy in the Northern Straits to power its communities.
(c) T’Sou-ke Solar Power Project – This installation powers several buildings and a vehicle charging station, and along with the installation of solar hot water for 40 homes, has helped cut energy bills by approximately 75%.
50 Hearing Transcript, Volume 19 (November 24, 2014), para 9510. 51 Hearing Transcript, Volume 19 (November 24, 2014), para 9577. 52 Exhibit C359-4-2 – T’Sou-ke Nation – Sworn Affidavit of Chief Gordon Planes (May 26, 2015) (A4L5T0), 7. 53 Hearing Transcript, Volume 19 (November 24, 2014), paras 9539-9540. 54 Exhibit C359-4-2 – T’Sou-ke Nation – Sworn Affidavit of Chief Gordon Planes (May 26, 2015) (A4L5T0), 7.
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(d) T’Sou-ke Micro-Grid Demonstration Project – Concurrently with the Solar Power Project, T’Sou-ke is hosting a project for remote Northern communities that rely heavily on diesel power to demonstrate how to become more energy self- sufficient through the use of solar micro-grids.
(e) T’Sou-ke Oyster Farm – T’Sou-ke is growing 4 million oysters in the Sooke Basin to be used by its members as a food source, and as commercial revenue to foster the socio-economic successes of its members and to rebuild its traditional economic base.
(f) Salish Straits Seafood – T’Sou-ke is a part-owner of Salish Straits Seafoods, a wholly-owned Aboriginal corporation engaged in the sustainable harvest of marine resources.
43. In summary, as stewards of its Territory, T’Sou-ke takes great efforts to “use the guiding principles of ancestors to manage, protect, enhance, and restore ecosystems as well as to maintain a spiritual mental and physical connection with Mother Earth and the Creator.”55
C. Douglas Treaty 44. Between 1850 and 1854, Vancouver Island’s colonial governor, James Douglas, signed fourteen treaties with Aboriginal tribes on Vancouver Island. These treaties dealt with areas from Victoria to Sooke, the Saanich Peninsula, Nanaimo, and Fort Rupert. The agreements reached in the fourteen treaties all have similar texts, aside from the territories referred to, the persons signing, and the payment amounts provided thereunder. As such, case law that has developed on the interpretation of these treaties often generally applies to all fourteen of the agreements.
45. T’Sou-ke, under the name of “Family of Soke”, signed its treaty with Governor Douglas on May 1, 1850 (the “Douglas Treaty”).56 According to the text of the Douglas Treaty, T’Sou-ke consented to the surrender of “the whole of the lands situated and lying between the Bay of Syusung or Soke Inlet to the Three Rivers beyond Thlowuck or Point Shiningham of the Straits of Juan de Fuca and the snow covered mountains in the interior of Vancouver Island.”57
46. Concurrently, however, the Douglas Treaty provided that it was a condition of this “sale” of lands that T’Sou-ke’s retained the following title and rights:
[...] our Village Sites and enclosed fields are to be kept for our own use, for the use of our Children, and for those who may follow after us; [...]
55 Exhibit C359-4-2 – T’Sou-ke Nation – Sworn Affidavit of Chief Gordon Planes (May 26, 2015) (A4L5T0), 8. 56 Exhibit C359-4-2 – T’Sou-ke Nation – Sworn Affidavit of Chief Gordon Planes (May 26, 2015) (A4L5T0), 9; Exhibit C359-4-6 – T’Sou-ke Nation - Exhibit D to Chief Planes Sworn Affidavit (May 26, 2015) (A4L5T4). 57 Exhibit C359-4-6 – T’Sou-ke Nation - Exhibit D to Chief Planes Sworn Affidavit (May 26, 2015) (A4L5T4).
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it is also understood that we are at liberty to hunt over the unoccupied lands, and to carry on our fisheries as formerly. [...]58
47. Although the Douglas Treaty purported to represent a sale by T’Sou-ke of the lands specified above, Canadian courts have highlighted several problems with the treaties that Governor Douglas signed in the 1800’s with First Nations on Vancouver Island (including T’Sou-ke). These problems include that:
(a) the signatures of the Chiefs were placed on a blank sheet with the written words of the treaty added later;
(b) the Chiefs’ signatures (crosses) were not made by the Chiefs themselves;
(c) the understanding of language between the parties was extremely poor; and
(d) there were significant differences between Aboriginal and European conceptions of real property.59
48. Due to the problems outlined above, the historical context and interpretation of the treaties signed by Governor Douglas with First Nations on Vancouver Island has been subject to substantial judicial analysis and comment.60 Case law has confirmed that these treaties do not limit Aboriginal hunting and fishing rights to the surrendered territory or extinguish them beyond that territory.61
49. Other case law has outlined specific principles that govern treaty interpretation, including that treaties should be liberally construed with ambiguities or doubtful expressions resolved in favour of the Aboriginal signatories, and that the words of the treaty must be given the sense which they would naturally have held for the parties at the time.62
50. With regards to this latter point, T’Sou-ke Elders have advised that the original T’Sou-ke signatories had “misinterpreted the document”, believing it to be in regards to “working together with the Crown to jointly manage resource”. Therefore, it is T’Sou-ke’s position that it never ceded its Territory to the Crown through the Douglas Treaty, and, as such, T’Sou-ke retains Aboriginal Title to its entire Territory.63
58 Exhibit C359-4-6 – T’Sou-ke Nation - Exhibit D to Chief Planes Sworn Affidavit (May 26, 2015) (A4L5T4).
59 R. v. Bartleman (1984), 1984 CanLII 547 (BC CA), 12 D.L.R. (4th) 73 (B.C.C.A.) [Bartleman], paras 17, 18, 23, 29, 38, 42; Chartrand v. The District Manager, 2013 BCSC 1068, paras 17, 88 (appeal allowed on another matter). 60 R. v. White and Bob, (1964), 50 D.L.R. (2d) 613 (B.C.C.A.) (affirmed (1965, 52 D.L.R. (d) 481 (S.C.C.)); Bartleman; Saanichton Marina Ltd. v. Tsawout Indian Band (1989), 1989 CanLII 2721 (BC CA), 57 D.L.R. (4th) 161 (B.C.C.A.) [Saanichton Marina]; and R. v. Morris, 2006 SCC 59 [Morris]. 61 Bartleman. 62 Morris, para 29. 63 Exhibit C359-4-2 – T’Sou-ke Nation – Sworn Affidavit of Chief Gordon Planes (May 26, 2015) (A4L5T0), 10.
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D. B.C. Treaty Process 51. T’Sou-ke is a member of the Te’mexw Treaty Association (the “TTA”), alongside the Songhees, Snaw-naw-as, Malahat, and Sci’ianew (Beecher Bay) First Nations.64 The TTA has been engaged in treaty negotiations with the Government of Canada and the Province of British Columbia since 1995 pursuant to the B.C. Treaty Commission Process.65
52. The B.C. Treaty Commission Process is a six-stage process, whose purpose is to secure the return of traditional territories that have not been ceded to the Crown.66 The TTA’s treaty negotiation process is now moving into the fifth stage, which is the negotiation to finalize the treaty.67 In April 2015, the TTA and the Crown signed an Agreement in Principle (the “AIP”) for the Te’emxw Treaty, leading the TTA into Stage 5 of treaty negotiations. Under the AIP, settlement land for T’Sou-ke is anticipated to be approximately 75.60 hectares of existing T’Sou-ke First Nation Indian Reserves and approximately 350.17 hectares of Crown land, including subsurface tenures.68
53. The AIP states that the nature of the treaty final agreement is that it will “be a treaty and land claims agreement within the meaning of section 25 or 35 of the Constitution Act, 1982.” 69
E. T’Sou-ke Aboriginal Rights i. Rights to Harvest
54. T’Sou-ke has extensive Aboriginal rights to harvest (including fishing, hunting, trapping and gathering) for subsistence, cultural and economic purposes across its Territory, which rights its members have exercised since time immemorial.
55. The marine and freshwater ecosystems within T’Sou-ke’s Territory are home to a variety of species, including large populations of salmon and Puget Sound crab, and provide spawning areas for herring, lingcod and anchovies, a shrimp nursery and salmon resting and rearing habitats.70 The five species of migratory Pacific salmon present off the Pacific coast of British Columbia have always been a major food source for T’Sou-ke and continue to play a central role in T’Sou-ke’s exercise of its Aboriginal fishing and
64 Exhibit C359-4-2 – T’Sou-ke Nation – Sworn Affidavit of Chief Gordon Planes (May 26, 2015) (A4L5T0), 9. 65 Exhibit C359-4-2 – T’Sou-ke Nation – Sworn Affidavit of Chief Gordon Planes (May 26, 2015) (A4L5T0), 10. 66 Exhibit C359-4-2 – T’Sou-ke Nation – Sworn Affidavit of Chief Gordon Planes (May 26, 2015) (A4L5T0), 10. 67 Exhibit C359-4-2 – T’Sou-ke Nation – Sworn Affidavit of Chief Gordon Planes (May 26, 2015) (A4L5T0), 11. 68 Exhibit C359-4-2 – T’Sou-ke Nation – Sworn Affidavit of Chief Gordon Planes (May 26, 2015) (A4L5T0), 11. 68 Exhibit C359-4-2 – T’Sou-ke Nation – Sworn Affidavit of Chief Gordon Planes (May 26, 2015) (), 65. b -one.gc.ca/ll-eng/llisapi.dll/fetch/2000/90464/90552/548311/956726/2392873/2449925/2451409/2785132/C359-4- 15_-_T_Sou-ke_Nation_-_Traditional_Marine_Resource_Knowledge_and_Use_Study_Report_- _A4L5U3.pdf?nodeid=2785461&vernum=-2" A4L5U3), 41.
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cultural rights. Halibut, lingcod, herring and rockfish have also long provided reliable sources of food and played an important cultural significance to T’Sou-ke.71
56. T’Sou-ke members report active fishing in the Northern Straits for lingcod, halibut, dogfish, herring, and Pacific salmon.72 In addition, T’Sou-ke members report fishing for salmon, perch, flounder, steelhead, rock cod and cutthroat trout in Sooke Harbour and Sooke Basin, as well as use of these water-bodies to set shrimp and crab traps.73 The Sooke River, De Mamiel Creek and Ayum Creek are also heavily used by T’Sou-ke members for gaffing, netting and fishing for salmon and trout, and smelt are harvested annually at Port Renfrew.74
57. In addition to fish, the harvest of seafood along the coastal foreshores of its Territory lies at the core of T’Sou-ke’s culture and has provided a significant means of subsistence since time immemorial. Members report harvesting a wide variety of seafood, including crayfish, rock stickers, limpets, oysters, gooseneck barnacles, sea cucumber, scallops, abalone, squid, clams, mussels, octopus, crabs, cockles, sea urchins, seaweed and kelp.75
58. T’Sou-ke also obtains a variety of foodstuffs from the coastal land regions of its Territory. For example, members harvest berries and other plants, and also report trapping mink, raccoon, ducks and sea otters at various locations across its Territory.76 ii. Rights to Marine Navigation and Travel
59. Due to T’Sou-ke’s significant reliance on, and stewardship over, marine resources within its Territory, the knowledge of marine navigation and travel also has central cultural importance to T’Sou-ke, and T’Sou-ke maintains critical Aboriginal rights to marine navigation and travel within its Territory.77
60. Knowledge of marine navigation and travel, including use of the traditional canoes, is vital to the continuation of T’Sou-ke’s traditional fishing practices. It also ensures that T’Sou-ke members can navigate safely in the dangerous conditions present in the marine
71 Exhibit C359-4-15 – T’Sou-ke Nation – Traditional Marine Resource Knowledge and Use Study Report (May 26, 2015) (A4L5U3), 20. 72 Exhibit C359-4-15 – T’Sou-ke Nation – Traditional Marine Resource Knowledge and Use Study Report (May 26, 2015) (A4L5U3), 40. 73 Exhibit C359-4-15 – T’Sou-ke Nation – Traditional Marine Resource Knowledge and Use Study Report (May 26, 2015) (A4L5U3), 40. 74 Exhibit C359-4-15 – T’Sou-ke Nation – Traditional Marine Resource Knowledge and Use Study Report (May 26, 2015) (A4L5U3), 40. 75 Exhibit C359-4-15 – T’Sou-ke Nation – Traditional Marine Resource Knowledge and Use Study Report (May 26, 2015) (A4L5U3), 51, 55-56. 76 Exhibit C359-4-15 – T’Sou-ke Nation – Traditional Marine Resource Knowledge and Use Study Report (May 26, 2015) (A4L5U3), 51, 56-57. 77 Exhibit C359-4-15 – T’Sou-ke Nation – Traditional Marine Resource Knowledge and Use Study Report (May 26, 2015) (A4L5U3), 65.
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portions of its Territory, which conditions include heavy fog that can distort sound and limit visibility, strong currents and large wakes from passing ships.78
61. The continued use of traditional canoes remains a vital aspect to T’Sou-ke’s culture. Many T’Sou-ke members participate in “Tribal Journeys”, a ceremonial canoe journey for coastal First Nations across the Northern Straits, which follows an important traditional trade and travel route of T’Sou-ke’s ancestors.79 These cultural trips bring T’Sou-ke members together with neighbouring tribes and First Nations, honour and celebrate the importance of canoes and intercommunity ties, and provide them with the ability to teach younger generations and share with them the cultural importance of maintaining connections with the marine environment.80
62. Support for T’Sou-ke’s own understanding of its existing and continuing Aboriginal rights to marine navigation and travel within its Territory can be found in .Saanichton Marina Ltd. v. Claxton, a decision extensively applied by all levels of Canadian courts, where the BC Court of Appeal considered the words “we are at liberty ... to carry on our fisheries as formerly”, which are also included in T’Sou-ke’s Douglas Treaty.81 Drawing on Supreme Court of Canada jurisprudence, the Court of Appeal found that this term afforded the Nation with “an independent source of protection of their right to carry on their fisheries as formerly”, which “would include the right to travel to and from the fishery”.82 iii. Rights to Traditional Knowledge, Culture and Way of Life 63. Throughout its Territory, T’Sou-ke maintains many areas of significant cultural importance, including seafood and game processing areas, smokehouses, gathering places, medicinal plant gathering areas, spiritual places, cedar bark and cedar pole collecting sites, burial sites, and ceremonial places.83 A sacred site of vital importance to T’Sou-ke is the Northern Straits, which has been both a spiritual site and an important trade and travel route for T’Sou-ke since time immemorial.84
64. As discussed above, harvesting seafood, hunting and gathering plants within its Territory lies at the core of T’Sou-ke’s culture. In addition to providing its members with an importance source of sustenance, these activities have important cultural significance that
78 Exhibit C359-4-15 – T’Sou-ke Nation – Traditional Marine Resource Knowledge and Use Study Report (May 26, 2015) (A4L5U3), 65. 79 Exhibit C359-4-15 – T’Sou-ke Nation – Traditional Marine Resource Knowledge and Use Study Report (May 26, 2015) (A4L5U3), 23. 80 Exhibit C359-4-15 – T’Sou-ke Nation – Traditional Marine Resource Knowledge and Use Study Report (May 26, 2015) (A4L5U3), 23, 65-66; Exhibit C359-4-2 – T’Sou-ke Nation – Sworn Affidavit of Chief Gordon Planes (May 26, 2015) (A4L5T0), 5. 81 Saanichton Marina; Morris, para 19; Chartrand v. British Columbia (Forests, Lands and Natural Resource Operations), 2015 BCCA 345 [Chartrand], para 80. 82 Saanichton Marina, para 37 [emphasis added]. 83 Exhibit C359-4-15 – T’Sou-ke Nation – Traditional Marine Resource Knowledge and Use Study Report (May 26, 2015) (A4L5U3), 68-69 (select sacred sites within the Territory include Smokehouse Lakes, T’Sou-ke Potholes, Kle e chan (Spring Salmon Place), Sacred Falls and the Soke River); Exhibit C359-4-2 – T’Sou-ke Nation – Sworn Affidavit of Chief Gordon Planes (May 26, 2015) (A4L5T0), 4. 84 Exhibit C359-4-2 – T’Sou-ke Nation – Sworn Affidavit of Chief Gordon Planes (May 26, 2015) (A4L5T0), 5.
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lie at the core of T’Sou-ke’s identity and assist its members to maintain family and community ties required to sustain their Aboriginal way of life.85
65. Harvesting, hunting and gathering activities also provide significant teaching opportunities to transmit traditional knowledge amongst different generations.86 T’Sou-ke places great value on the ability to teach younger generations, both as a means of passing traditional knowledge forward to future generations and to help members become more self sufficient and able to meaningfully exercise their hunting and food gathering rights in the face of the significant impacts since European contact around 1861 (discussed further below).87 T’Sou-ke also runs a food fish program where it provides salmon to its members, which program is particularly important to Elders and other members who are unable to fish themselves.88
66. Real learning about traditional ways and traditional knowledge requires on-the-ground participation, as well as support from Elders and other knowledge holders. This on-the- ground experience offers a deeper and longer-lasting connection to T’Sou-ke culture than what can be provided in a classroom setting. Its continued success, however, relies on continued access to vital resources and traditional areas in which this learning and culture has been transmitted since time immemorial.89 This includes specific locations and/or aspects of the lands and water within the Territory to which specific T’Sou-ke legends apply.90 As discussed below, a key area of significance to the T’Sou-ke culture and its teaching of traditional ways and traditional knowledge to future generations is Race Rocks, which is located adjacent to the shipping lanes of the Project-related oil carrier vessels.91 iv. Right to Self-Governance
67. T’Sou-ke has inherent Aboriginal right to govern itself and its Territory according to its own laws, customs and traditions.92
68. T’Sou-ke’s exercise of self-governance and territorial governance was severely impacted by European colonization and the inception of the Indian Act. When the Indian Act was first enacted the traditional structures of governance of First Nations were outlawed and
85 Exhibit C359-4-15 – T’Sou-ke Nation – Traditional Marine Resource Knowledge and Use Study Report (May 26, 2015) (A4L5U3), 46-47, 55-56; Exhibit C359-4-2 – T’Sou-ke Nation – Sworn Affidavit of Chief Gordon Planes (May 26, 2015) (A4L5T0), 4. 86 Exhibit C359-4-15 – T’Sou-ke Nation – Traditional Marine Resource Knowledge and Use Study Report (May 26, 2015) (A4L5U3), 46, 71. 87 Exhibit C359-4-15 – T’Sou-ke Nation – Traditional Marine Resource Knowledge and Use Study Report (May 26, 2015) (A4L5U3), 73. 88 Exhibit C359-4-15 – T’Sou-ke Nation – Traditional Marine Resource Knowledge and Use Study Report (May 26, 2015) (A4L5U3), 47. 89 Exhibit C359-4-15 – T’Sou-ke Nation – Traditional Marine Resource Knowledge and Use Study Report (May 26, 2015) (A4L5U3), 72. 90 Exhibit C359-4-15 – T’Sou-ke Nation – Traditional Marine Resource Knowledge and Use Study Report (May 26, 2015) (A4L5U3), 73-74. 91 Exhibit B21-1 - V8C_TR_8C_12_01_OF_03_TERMPOL_3.15_RISK_ANAL (December 17, 2013) (A3S5F4), 11-17. 92 Exhibit C359-4-2 – T’Sou-ke Nation – Sworn Affidavit of Chief Gordon Planes (May 26, 2015) (A4L5T0), 17.
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replaced by the forced elections of a chief and council under the supervision of the local Indian agent.93
69. Today, the Government of Canada expressly recognizes the inherent right of self- government as an existing Aboriginal right under section 35 of the Constitution Act, 1982. Canada’s recognition of the inherent right is based on the view that the Aboriginal peoples of Canada have the right to govern themselves in relation to matters that are internal to their communities, integral to their unique cultures, identities, traditions, languages and institutions, and with respect to their special relationship to their territories and resources therein.
70. Between 1890 and 1975, the Indian Act subjected many T’Sou-ke children to the residential school system, whose underlying purpose was to assimilate First Nation’s cultures and sever their links to traditional beliefs and ways of life.94 This created intergenerational impacts to T’Sou-ke’s Aboriginal right of self-governance.
71. Nevertheless, T’Sou-ke is making strong efforts to restore the full exercise of its right of self-governance today, including by:
(a) assessing and managing the health of marine species within its Territory;
(b) entering into and maintaining intertribal protocols on resource use and conservation;
(c) working with its neighbours on Nation-building economic development projects, including information sharing and teaching to advance governance capacities;
(d) engaging on a Nation-to-Nation basis with the provincial and federal governments on ecosystem restoration;
(e) implementing stewardship programs to protect its Territory and advance its members’ abilities to meaningfully exercise their Aboriginal rights; and
(f) teaching future generations the Sencoten language to ensure the continuation of its distinctive culture. v. Exercise of Rights across the Territory
72. T’Sou-ke’s Rights exist throughout its Territory.95
73. The existence and exercise of Rights across a vast geographical area is based, in part, on having access to resources when and where they are in best supply. Historically, T’Sou- ke members harvested resources from the sea by fishing, gathering and hunting in
93 Exhibit C359-4-15 – T’Sou-ke Nation – Traditional Marine Resource Knowledge and Use Study Report (May 26, 2015) (A4L5U3), 22. 94 Exhibit C359-4-15 – T’Sou-ke Nation – Traditional Marine Resource Knowledge and Use Study Report (May 26, 2015) (A4L5U3), 22. 95 Exhibit C359-4-2 – T’Sou-ke Nation – Sworn Affidavit of Chief Gordon Planes (May 26, 2015) (A4L5T0), 3.
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seasonal cycles.96 For instance, T’Sou-ke members would camp at Milne’s Landing during the winter months, while camping elsewhere during the summer and spring to take advantage of resources available in different seasons.97 Today, T’Sou-ke members continue to harvest seafood and other species in accordance with seasonal cycles across their Territory.
74. On land, T’Sou-ke members exercise Aboriginal hunting rights for black-tailed deer, elk and deer, and various waterfowl.98
75. Across the entire length of the Northern Straits, T’Sou-ke members exercise their Aboriginal harvesting rights including trapping crab, fishing lingcod, halibut, dogfish, herring, Pacific salmon and rock cod, using fish traps, harvesting smelt, and gaffing for salmon. 99
76. In the foreshore areas of the Northern Straits and surrounding bays, T’Sou-ke members exercise their Aboriginal harvesting rights for large quantities of shellfish and seafood. While on the coast and coastal hinterlands T’Sou-ke members exercise their Aboriginal harvesting rights for berries and other plants, while also exercising their Aboriginal trapping rights for mink, raccoon and sea otter.100
77. T’Sou-ke members also use Sooke Harbour and Sooke Basin extensively for their exercise of Aboriginal fishing rights, including ongoing fishing for salmon, perch, flounder, steelhead, and cutthroat trout, and continued setting up of shrimp and crab traps. In the recent past, T’Sou-ke members also fished for anchovies and herring (1980s to 1990s).101
78. T’Sou-ke members also rely heavily on the Sooke River, De Mamiel Creek and Ayum Creek to exercise their Aboriginal fishing rights for salmon and trout, Aboriginal harvesting rights for roe and crayfish, and Aboriginal hunting rights for harbour seals.102 In the past, T’Sou-ke members would also jig for herring in the Sooke River.103
79. T’Sou-ke members exercise their Rights within the foreshore areas of Sooke Harbour and Sooke Basin; in these locations, T’Sou-ke members report intensive clam harvesting,
96 Exhibit C359-4-15 – T’Sou-ke Nation – Traditional Marine Resource Knowledge and Use Study Report (May 26, 2015) (A4L5U3), 20. 97 Exhibit C359-4-15 – T’Sou-ke Nation – Traditional Marine Resource Knowledge and Use Study Report (May 26, 2015) (A4L5U3), 20. 98 Exhibit C359-4-15 – T’Sou-ke Nation – Traditional Marine Resource Knowledge and Use Study Report (May 26, 2015) (A4L5U3), 20. 99 Exhibit C359-4-15 – T’Sou-ke Nation – Traditional Marine Resource Knowledge and Use Study Report (May 26, 2015) (A4L5U3), 40-41. 100 Exhibit C359-4-15 – T’Sou-ke Nation – Traditional Marine Resource Knowledge and Use Study Report (May 26, 2015) (A4L5U3), 51-52. 101 Exhibit C359-4-15 – T’Sou-ke Nation – Traditional Marine Resource Knowledge and Use Study Report (May 26, 2015) (A4L5U3), 40-41. 102 Exhibit C359-4-15 – T’Sou-ke Nation – Traditional Marine Resource Knowledge and Use Study Report (May 26, 2015) (A4L5U3), 51-52. 103 Exhibit C359-4-15 – T’Sou-ke Nation – Traditional Marine Resource Knowledge and Use Study Report (May 26, 2015) (A4L5U3), 40-41.
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collecting oysters and mussels at low tide, raking crabs and trapping ducks and hunting seals, porpoises and geese.104 Recently, T’Sou-ke has also established an oyster farm in the Sooke Basin.
80. Around the coast and coastal hinterland of Sooke Harbour and Sooke Basin, T’Sou-ke members also exercise Aboriginal harvesting rights for berries, sweet grass and firewood.105
81. An understanding of the scope of T’Sou-ke’s Aboriginal fishing rights throughout its Territory can also be gleaned from its Douglas Treaty.
82. Governor Douglas described the treaty signed with the “Soke Tribe” in a letter to Archbald Barclay. In that letter, Governor Douglas confirmed that T’Sou-ke retained its rights to the traditional use of the lands and waters across its Territory:
I informed the natives that they would not be disturbed in the possession of their Village sites and enclosed fields, which are of small extent, and that they were at liberty to hunt over the unoccupied lands, and to carry on their fisheries with the same freedom as when they were the sole occupants of the country.106 (Emphasis added.)
83. In Saanichton Marina Ltd. v. Claxton, the BC Court of Appeal held that the term “fisheries” in the statement from the Douglas Treaty “carry on our fisheries as formerly” should be used to denote not only the right to catch fish but also the place where the right can be exercised.107 Further, as the right to carry on fisheries was not qualified or limited to unoccupied lands, or qualified in any other respect, the Court of Appeal held that the right to the fishery should not be so restricted, and rather exist across the Nation’s entire Traditional Territory.108 This corresponds with T’Sou-ke’s own position that it holds Aboriginal fishing rights to its entire Territory.
F. Impacts to T’Sou-ke’s Rights i. Current Baseline – Existing Impacts
84. Although T’Sou-ke continues to maintain strong cultural ties to its entire Territory, the ability of its members to meaningfully exercise their Aboriginal rights in their preferred locations have been significantly impacted.109
104 Exhibit C359-4-15 – T’Sou-ke Nation – Traditional Marine Resource Knowledge and Use Study Report (May 26, 2015) (A4L5U3), 20, 51-52. 105 Exhibit C359-4-15 – T’Sou-ke Nation – Traditional Marine Resource Knowledge and Use Study Report (May 26, 2015) (A4L5U3), 51-52. 106 Bartleman, para 16. 107 Saanichton Marina, para 19. 108 Saanichton Marina, para 33. 109 West Moberly First Nations v. British Columbia (Chief Inspector of Mines), 2011 BCCA 247 (application for leave dismissed), para 137; Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), [2005] 3 SCR 388, 2005 SCC 69 [Mikisew], para 45.
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85. These impacts are associated with several factors, including colonization (T’Sou-ke was one of the first Aboriginal peoples that European settlers encountered on the west coast), the Indian Act, forestry, and commercial fishing activities across its Territory, which have all had significant effects on T’Sou-ke’s ability to maintain its traditional ways of life and its distinctive culture.110
86. For example, the introduction of the Indian Act outlawed many traditional cultural practices essential to building and maintaining family ties, indigenous governance systems, oral histories and overall cultural continuity.111 One important example of negative impacts on T’Sou-ke members’ abilities to practice their cultural traditions was the banning of the potlatch in 1884, which was a widely practiced and culturally important activity.112 Nevertheless, T’Sou-ke sought to maintain its culture and continued to hold potlatches, albeit in secret and thus in significantly reduced capacities, until the ban on potlatches was lifted in 1951.113
87. Impacts on T’Sou-ke culture were also aggravated by the introduction of residential schools which sought to forever sever the links to First Nations’ beliefs and ways of life.114
88. Nevertheless, T’Sou-ke members sought to overcome these challenges and engage with the Western economy while continuing to maintain their traditional way of life. For example, in the late 19th century, while T’Sou-ke members continued to harvest resources within their Territory, they also began trading with the Hudson’s Bay Company, exchanging salmon for other goods.115 T’Sou-ke members also began sharing their knowledge with the colonizers, and it is well recognized that “commercial fishing [was] built on the knowledge and expertise of the Coast Salish people”.116 The canneries also relied heavily on the expertise of T’Sou-ke members in processing fish caught from within the Territory.117
89. Concurrently, since contact, resources within T’Sou-ke’s Territory have faced cumulative impacts from several activities, including forestry, shipping, commercial fisheries and urban/residential sprawl. These impacts have reduced the amount and accessibility of waters and lands that are capable of supporting T’Sou-ke’s traditional livelihood, and
110 Exhibit C359-4-15 – T’Sou-ke Nation – Traditional Marine Resource Knowledge and Use Study Report (May 26, 2015) (A4L5U3), 75. 111 Exhibit C359-4-15 – T’Sou-ke Nation – Traditional Marine Resource Knowledge and Use Study Report (May 26, 2015) (A4L5U3), 75. 112 Exhibit C359-4-15 – T’Sou-ke Nation – Traditional Marine Resource Knowledge and Use Study Report (May 26, 2015) (A4L5U3), 21. 113 Exhibit C359-4-15 – T’Sou-ke Nation – Traditional Marine Resource Knowledge and Use Study Report (May 26, 2015) (A4L5U3), 22. 114 Exhibit C359-4-15 – T’Sou-ke Nation – Traditional Marine Resource Knowledge and Use Study Report (May 26, 2015) (A4L5U3), 75. 115 Exhibit C359-4-15 – T’Sou-ke Nation – Traditional Marine Resource Knowledge and Use Study Report (May 26, 2015) (A4L5U3), 21. 116 Exhibit C359-4-15 – T’Sou-ke Nation – Traditional Marine Resource Knowledge and Use Study Report (May 26, 2015) (A4L5U3), 22. 117 Exhibit C359-4-15 – T’Sou-ke Nation – Traditional Marine Resource Knowledge and Use Study Report (May 26, 2015) (A4L5U3), 22.
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have caused adverse cumulative impacts on T’Sou-ke language, culture, inter- generational knowledge transfer, traditional livelihoods, intra- and inter-community social cohesion, rights-based harvesting, health and other essential elements of T’Sou- ke’s traditional mode of life.118
90. As discussed above, marine resources remain of primary importance to T’Sou-ke, and lie at the core of its culture and identity. Harvesting salmon in the Northern Straits, Sooke River and inland spawning waterways remains an essential activity for T’Sou-ke, as does gathering seafood along the foreshore.119
91. Contamination from industrial development and sewage effluent has, however, compromised T’Sou-ke’s ability to gather and consume some marine resources such as shellfish.120
92. T’Sou-ke members also report a decrease in salmon, flounder, herring, crab and waterfowl populations.121 In addition, seals, once an important source of fat and nutrition to T’Sou-ke, are no longer safe to eat due to mercury contamination.122
93. T’Sou-ke members also previously harvested clams for subsistence and commercial sale. Areas where healthy, uncontaminated clams were once in abundance have, however, been significantly reduced as a result of urban sprawl and an increase in forest activity, which have contaminated and destroyed clam beds.123
94. Changes in fisheries regulations have also impacted T’Sou-ke’s fishing rights and access.124 Concurrently, increased competition from commercial and sport harvesters has dramatically reduced the number of crabs available to be harvested by T’Sou-ke members.125
95. There has also been a decline in terrestrial species, such as deer and berries, which traditionally played an important role in T’Sou-ke members’ abilities to meaningfully exercise their Aboriginal hunting and gathering rights.126 This has further limited T’Sou-
118 Exhibit C359-4-15 – T’Sou-ke Nation – Traditional Marine Resource Knowledge and Use Study Report (May 26, 2015) (A4L5U3), 81. 119 Exhibit C359-4-15 – T’Sou-ke Nation – Traditional Marine Resource Knowledge and Use Study Report (May 26, 2015) (A4L5U3), 20. 120 Exhibit C359-4-15 – T’Sou-ke Nation – Traditional Marine Resource Knowledge and Use Study Report (May 26, 2015) (A4L5U3), 23. 121 Exhibit C359-4-15 – T’Sou-ke Nation – Traditional Marine Resource Knowledge and Use Study Report (May 26, 2015) (A4L5U3), 47-48, 59, 60. 122 Exhibit C359-4-15 – T’Sou-ke Nation – Traditional Marine Resource Knowledge and Use Study Report (May 26, 2015) (A4L5U3), 60. 123 Exhibit C359-4-15 – T’Sou-ke Nation – Traditional Marine Resource Knowledge and Use Study Report (May 26, 2015) (A4L5U3), 57. 124 Exhibit C359-4-15 – T’Sou-ke Nation – Traditional Marine Resource Knowledge and Use Study Report (May 26, 2015) (A4L5U3), 48. 125 Exhibit C359-4-15 – T’Sou-ke Nation – Traditional Marine Resource Knowledge and Use Study Report (May 26, 2015) (A4L5U3), 59. 126 Exhibit C359-4-15 – T’Sou-ke Nation – Traditional Marine Resource Knowledge and Use Study Report (May 26, 2015) (A4L5U3), 60.
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ke members’ abilities to supplement their diets with traditional foods, which are dependent on a healthy marine environment.127
96. T’Sou-ke members’ abilities to exercise their Aboriginal marine navigation and travel rights along the water-bodies within their Territory have also been impacted. Due to the size of large freighters and large oil carrier vessels, wide shipping lanes, which include or traverse traditional marine routes, are becoming increasingly hazardous and unsafe to T’Sou-ke members in small fishing boats or canoes. Any further increase in shipping traffic across these traditional marine routes would create a further significant adverse impact on T’Sou-ke members’ abilities to exercise their fishing, marine navigation and travel rights. ii. T’Sou-ke’s Continuous Use and Occupation
97. Despite the rapid increase in both the settler population and the resource based economy throughout the 20th century, T’Sou-ke members “remain[ed] committed to maintaining their cultural heritage and carrying their way of life forward for future generations.”128 T’Sou-ke actively seeks to maintain its cultural heritage and way of life to ensure their transmission forward to future generations.129 For instance, T’Sou-ke has sought to overcome the limitations it faces from the cumulative impacts on its Territory by developing an economic base through traditional activities such as oyster and clam harvesting and commercial fishing.130 However, reliance on this form of economic base leaves T’Sou-ke vulnerable to significant additional adverse impacts on the marine environment.131
98. Today, T’Sou-ke members continue to fish for lingcod, Pacific salmon, halibut, dogfish and herring in the Northern Straits “from Race Rocks to Stanley Beach.”132 T’Sou-ke members also continue to extensively use the foreshore areas of the Northern Straits and surrounding bays for harvesting shellfish and other seafood such as rock stickers, limpets, mussels, oysters and sea otters along a beach near Point-No-Point.133 In addition, T’Sou- ke members intensely use Sooke River, De Mamiel Creek and Ayum Creek to fish for salmon and trout.134 T’Sou-ke members also continue to use the Sooke Harbour and
127 Exhibit C359-4-15 – T’Sou-ke Nation – Traditional Marine Resource Knowledge and Use Study Report (May 26, 2015) (A4L5U3), 60. 128 Exhibit C359-4-15 – T’Sou-ke Nation – Traditional Marine Resource Knowledge and Use Study Report (May 26, 2015) (A4L5U3), 76. 129 Exhibit C359-4-15 – T’Sou-ke Nation – Traditional Marine Resource Knowledge and Use Study Report (May 26, 2015) (A4L5U3), 76. 130 Exhibit C359-4-15 – T’Sou-ke Nation – Traditional Marine Resource Knowledge and Use Study Report (May 26, 2015) (A4L5U3), 81. 131 Exhibit C359-4-15 – T’Sou-ke Nation – Traditional Marine Resource Knowledge and Use Study Report (May 26, 2015) (A4L5U3), 81. 132 Exhibit C359-4-15 – T’Sou-ke Nation – Traditional Marine Resource Knowledge and Use Study Report (May 26, 2015) (A4L5U3), 40. 133 Exhibit C359-4-15 – T’Sou-ke Nation – Traditional Marine Resource Knowledge and Use Study Report (May 26, 2015) (A4L5U3), 51. 134 Exhibit C359-4-15 – T’Sou-ke Nation – Traditional Marine Resource Knowledge and Use Study Report (May 26, 2015) (A4L5U3), 40.
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Sooke Basin to fish for salmon, perch, flounder, steelhead and cutthroat trout.135 These areas are also used to set shrimp and crab traps.136
99. As explained above, T’Sou-ke’s Territory extends onto the land on which its members continue to exercise their Aboriginal rights and hold Aboriginal title. For example, today T’Sou-ke members continue to use the area around the coast and coastal hinterland of Sooke Harbour and Sooke Basin to harvest plants and berries and to collect firewood.137 Further inland, T’Sou-ke hunters continue to trap ducks, geese, mink and racoon.138
100. Particular coastal areas of the Northern Straits also continue to represent locations of great cultural significance including smokehouses and gathering places for dances and feasts.139
101. Although T’Sou-ke is actively trying to overcome the current impacts within its Territory, these impacts render the Project area of vital importance to its Rights. As explained in the Traditional Marine Knowledge and Use Report:
[...] the heightened importance of the Project area to T’Sou-ke Nation’s traditional mode of life must also be considered because of the loss of use in Sooke Basin and Harbour due to contamination of clam beds, closure of the abalone fishery, and competition for resources from non-Native commercial and recreational harvesters, as well as the concentrated area in which T’Sou-ke members practice their Aboriginal rights.140
102. In summary, based on the current impacts to its Territory and Rights, T’Sou-ke is deeply concerned that any further impacts to its Rights, including Aboriginal title, could be detrimental and irreversible regardless of its extensive stewardship efforts.
PART III PROJECT IMPACTS TO T’SOU-KE A. The Project 103. On December 16, 2013, Trans Mountain applied to the Board for permission to build and operate the Project, which would include approximately 987 kilometres of new oil pipeline, and the reactivation of 193 kilometres of existing oil pipeline, between Edmonton, Alberta, and Burnaby, British Columbia.
135 Exhibit C359-4-15 – T’Sou-ke Nation – Traditional Marine Resource Knowledge and Use Study Report (May 26, 2015) (A4L5U3), 40. 136 Exhibit C359-4-15 – T’Sou-ke Nation – Traditional Marine Resource Knowledge and Use Study Report (May 26, 2015) (A4L5U3), 40. 137 Exhibit C359-4-15 – T’Sou-ke Nation – Traditional Marine Resource Knowledge and Use Study Report (May 26, 2015) (A4L5U3), 51. 138 Exhibit C359-4-15 – T’Sou-ke Nation – Traditional Marine Resource Knowledge and Use Study Report (May 26, 2015) (A4L5U3), 51. 139 Exhibit C359-4-15 – T’Sou-ke Nation – Traditional Marine Resource Knowledge and Use Study Report (May 26, 2015) (A4L5U3), 68. 140Exhibit C359-4-15 – T’Sou-ke Nation – Traditional Marine Resource Knowledge and Use Study Report (May 26, 2015) (A4L5U3), 81.
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104. If approved, new pump stations will be added along the Project route, and oil deliveries to Burnaby for export by large oil carrier vessels through the Territory will increase by roughly seven-fold from 5 to 34 vessels per month (a total of 408 inbound and 408 outbound transits per year).141 The oil carrier vessels carrying the diluted bitumen will travel from the Westridge Marine Terminal, through the Salish Sea, including directly through the Northern Straits and T’Sou-ke’s Territory, and onto international waters.
105. As described below, the Project raises significant potential impacts on areas of high value to T’Sou-ke within its Territory, and on its members’ abilities to meaningfully exercise their Rights. In addition, as explained in the Traditional Marine Knowledge and Use Report, these impacts are associated both with the Project’s normal operations and the operations in the case of oil spills:
Based on available information, and considering past, present, and reasonably foreseeable future developments, the likely total effects load of the Project on the practice of T’Sou-ke’s Aboriginal rights and title will be significant.
The normal operations mode of the Project as proposed would likely result in significant impacts on the current use of marine and foreshore resources by T’Sou-ke Nation members as well as unique T’Sou-ke Nation cultural and spiritual values, particularly in areas where practice of T’Sou-ke’s Aboriginal rights and title are already impaired because of unaddressed cumulative industrial impacts.
In the event of a large-scale oil spill occurring in proximity to areas used by T’Sou-ke Nation members, the impacts on T’Sou-ke Nation use and occupancy, and implications for T’Sou-ke Nation culture and rights, would be catastrophic and, at minimum, long-term in duration and possibly multi-generational to permanent in adverse effects outcomes.142 (Emphasis added.)
B. Impacts to Aboriginal Title 106. T’Sou-ke has identified several concerns regarding possible Project impacts to its Aboriginal title.
107. First and foremost are the catastrophic, long-term and possibly multi-generational impacts that an oil spill would have on T’Sou-ke’s Territory.143 As explained by Chief Gordon Planes:
Now, as stewards, we have a responsibility today, like our ancestors did 100 years ago or 1,000 years ago, and we’re trying to keep with that. And that’s why we’re here today to speak on behalf of the Kinder Morgan application, is to say that what is the price that we have to pay if there was a spill?
141 Exhibit A15-3 - Hearing Order OH-001-2014 (April 3, 2014) (A3V6I2), 3. 142 Exhibit C359-4-15 – T’Sou-ke Nation – Traditional Marine Resource Knowledge and Use Study Report (May 26, 2015) (A4L5U3), 11. 143 Exhibit C359-4-15 – T’Sou-ke Nation – Traditional Marine Resource Knowledge and Use Study Report (May 26, 2015) (A4L5U3), 80.
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And I don’t know if anybody can answer that question because if you do, you’re either God or somebody that’s a good mind reader, somebody that knows the future, because I don’t think anybody can answer that question in this room. I don’t think there’s anybody. And I don’t think there’s anybody in this room that can tell me for a fact that there will never be a spill. I mean, I need somebody to tell me that and I haven’t met a person yet that told me that. And that’s the problem we have; it’s a big problem.144(Emphasis added.)
108. Previous marine oil spills, such as the Exxon Valdez spill which occurred in Alaska’s Prince William Sound over twenty-five years ago and which continues to pollute Alaskan beaches today, highlight the challenges of oil clean-up and indicate a possible permanent impact on T’Sou-ke’s Aboriginal title if an accident occurs and oil leaks or spills from an oil carrier vessel within or adjacent to T’Sou-ke’s Territory.
109. T’Sou-ke has first-hand knowledge on the length of time required to clean up an oil spill. As explained by one T’Sou-ke knowledge holder:
We had an oil spill here once years ago. ... I know I lived up on the other reserve, and I remember cleaning ducks and birds because there was oil. And so, I’ve seen what it can do. I’m scared out of my wits of them coming through that much. You know. Yes. You know, it’s almost inevitable with that many coming through, to me before a catastrophe happens. [...]
[about a past oil spill and the impacts at Sia-o-Sun (Reserve No. 2)] The whole beach was black. ...Yeah. My dad had to buy new boots—every time he went to the beach, he’d have to get new shoes. Yeah. Yeah, it was pretty serious. It took probably six or seven years before it was not noticeable anymore. And then it was still noticeable in some spots where there was gunk around the base of the rocks, but the tops would be clean from erosion over the years. Yeah, it was pretty serious.145 (Emphasis added.)
110. Mark West, a consultant with extensive training and practical experience in many areas of emergency response and incident management who submitted an expert report on behalf of the Shxw'ōwhámel First Nation, noted the following with regards to the challenges of oil spill clean-up and the limits of existing clean-up technologies:
[...] it must be remembered that the primary problem in recovering spilled oil is not removing oil from the water’s surface, but instead the challenge in encountering the oil. In real‐world spill conditions, spilled oil will spread very quickly, covering potentially enormous areas very quickly, greatly exceeding any existing technologies’ ability to apprehend it.146 (Emphasis added.)
144 Hearing Transcript, Volume 19 (November 24, 2014), paras 9588-9589. 145 Exhibit C359-4-15 – T’Sou-ke Nation – Traditional Marine Resource Knowledge and Use Study Report (May 26, 2015) (A4L5U3), 80. 146 Exhibit C312-8-4 - Mark West Spill Risk Assessment Report (May 27, 2015) (A4Q1A2), 84.
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111. These concerns are exacerbated by T’Sou-ke’s extensive traditional knowledge of the environment in the Northern Straits and the Salish Sea, including the frequently severe local weather conditions therein.147 These conditions highlight the unpredictability of the sea and the frequently unsafe conditions for the navigation of shipping traffic.
112. Closely tied to the concerns regarding spills from the Project’s directly related large oil carrier vessels and the inherently risky shipping lanes through T’Sou-ke’s Territory is the ability to respond to and mitigate damage in a timely and adequate manner in the event of an oil spill.148 Notably, the response to a small oil spill that occurred under calm conditions in the easily accessible Vancouver harbour in April 2015 still resulted in a slow response time with oil escaping onto the shorelines.149
113. Concurrently, oil spills would delay, reverse or entirely frustrate T’Sou-ke’s extensive stewardship efforts to restore ecosystems within its Territory, which, at the current baseline, are already severely impacted (as discussed above in Part II).150
114. In an assessment of spill risk for the Project completed by Dr. Thomas Gunton and Dr. Sean Broadbent of the School of Resource and Environmental Management at the Simon Fraser University, which was prepared for the intervenors Tsawout First Nation, Upper Nicola Band and Tsleil Waututh Nation, several inadequacies were identified in the Application’s spill risk assessment.151 In particular, Dr. Gunton and Dr. Broadbent observed that:
The spill risk estimates from the three different methodologies including the one used by TMEP show a high likelihood of a tanker spill ranging from 58% to 98% over a 50 year operating period. The only outlier result is the TMEP NewCase1c estimate showing a probability of 16%. Given the weaknesses in the methodology used in the TMEP application and the fact that this estimate is an outlier significantly below the estimates based on other methods, the tanker spill risk estimate NewCase1c in the TMEP application is an inaccurate and unreliable estimate of tanker spill risk.152 (Emphasis added.)
115. Moreover, even if a spill does not occur over the lifetime of the Project, which can never be a certainty due to the inherent risks of marine shipping, the Project will nonetheless result in a substantial increase in the large oil carrier vessel traffic through T’Sou-ke’s
147 Exhibit C359-4-15 – T’Sou-ke Nation – Traditional Marine Resource Knowledge and Use Study Report (May 26, 2015) (A4L5U3), 78-79. 148 Exhibit C359-4-2 – T’Sou-ke Nation – Sworn Affidavit of Chief Gordon Planes (May 26, 2015) (A4L5T0), 13. 149 Exhibit C269-19-2 - Affidavit of Chief Arliss Daniels sworn May 22, 2015 (May 26, 2015) (A4L5K2), 20; Exhibit C359-4-2 – T’Sou-ke Nation – Sworn Affidavit of Chief Gordon Planes (May 26, 2015) (A4L5T0), 13. 150 Exhibit C359-4-2 – T’Sou-ke Nation – Sworn Affidavit of Chief Gordon Planes (May 26, 2015) (A4L5T0), 13. 151 Exhibit C358-13-15 - Vol 5 Tab 4A Appendix 1 Assessment of Spill Risk Report (May 26, 2015) (A4L6A6). 152 Exhibit C358-13-15 - Vol 5 Tab 4A Appendix 1 Assessment of Spill Risk Report (May 26, 2015) (A4L6A6), iv.
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Territory. T’Sou-ke have significant concerns associated with this increased vessel traffic, including:153
(a) threats to the southern resident killer whales within T’Sou-ke’s Territory that are a listed endangered species, and whose critical habitat includes the trans-boundary waters of the Northern Straits;154
(b) increased day and night average ambient underwater sound levels associated with the Project-related increased oil carrier vessel traffic, with corresponding disturbance responses by marine animals such as temporary displacement, startle responses, increased energy expenditure, reduced foraging efficiency, communication masking, change in activity state, and increased stress which may vary depending on the applicable season;155
(c) damage to intertidal and shoreline habitats from increased frequency in wakes created by the large oil carrier vessels;
(d) destruction of T’Sou-ke members’ valuable fishing gear (including fishing nets and lines);
(e) disruption of spiritual connections associated with T’Sou-ke members’ exercise of their Rights; and
(f) contamination from increased industrial pollution associated with oil carrier vessel garbage, fuel leaks and ballast waters.
C. Impacts to Rights to Harvest 116. As discussed above, T’Sou-ke has extensive Aboriginal rights to harvest (including fishing, hunting, trapping and gathering) for subsistence, cultural and economic purposes across its Territory. Since European contact, T’Sou-ke members’ abilities to meaningfully exercise their Rights have been significantly curtailed, although these Rights still remain at the core of T’Sou-ke’s distinctive culture and way of life. T’Sou-ke is actively working on restoring its members’ abilities to meaningfully exercise their Rights in their preferred locations within the Territory. These efforts will, however, be undermined by additional impacts in the Territory that further degrade T’Sou-ke members’ abilities to meaningfully exercise their Rights.
117. In particular, any spill from a large oil carrier vessel would significantly, and possibly permanently, impair T’Sou-ke members’ abilities to exercise their Rights in the marine environment and foreshore areas within their Territory. Of particular concern to T’Sou-ke is a spill adjacent to the hazardous shipping area referred to as Race Rocks. As explained by Chief Gordon Planes:
153 Exhibit C359-4-15 – T’Sou-ke Nation – Traditional Marine Resource Knowledge and Use Study Report (May 26, 2015) (A4L5U3), 49; Exhibit C359-4-2 – T’Sou-ke Nation – Sworn Affidavit of Chief Gordon Planes (May 26, 2015) (A4L5T0), 13-14. 154 Exhibit B18-29 - V8A_4.2.12.2_TO_T5.2.2_MAR_TRANS_ASSESS (December 17, 2013) (A3S4Y3), 8A-303. 155 Exhibit B18-29 - V8A_4.2.12.2_TO_T5.2.2_MAR_TRANS_ASSESS (December 17, 2013) (A3S4Y3), 8A-302.
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And one of those places that are very near and very dear to us, the same as Chianno (ph) and Beecher Bay and the same as Songese (ph) and Esquimalt, and that place would be Race Rocks. Race Rocks is a very important place for resources and, after meeting with the Makah, they mentioned that it is one of the places that would be a high risk of having a spill. And that’s right beside where we live, and that is a concern. That is a very big concern.156 (Emphasis added.)
118. Race Rocks is a particularly important cultural and spiritual location to T’Sou-ke within its Territory, and a preferred location for its members to exercise their Rights.157 Concurrently, as explained by one T’Sou-ke knowledge holder, this is an area of significant danger for shipping:
Race Rocks is the worst place—if there’s a big storm coming and a tanker goes dead there and gets washed up on the beach, you’ve had it. The oil would just spoil everything—anywhere along here. So, if you get a tanker dead in the water off here, how long is it going to take—if it’s blowing 70-80 miles an hour from the south—blowing that big tanker in toward the water? How many hours are you going to take before it hits the beach? They can’t tell us that, and they can’t guarantee they can stop it, and even if they have a big tug to stop it, if the tanker’s dead in the water, it’s going to have to be an awful tug to pull that tanker off, hold it off in a storm.158(Emphasis added.)
119. The risks of a spill are particularly alarming in marine environments due to the high potential for wide-scale spreading of oil. As explained by emergency response expert Mark West:
History has shown that oil, when spilled on water will quickly spread to a very thin layer, covering a very large area. As a result, the oil typically can remain on the water for extended periods, or at least strand on a shoreline, covering many hundreds of kms of shoreline, where it has a potential to remobilize on a rising tide and refloat, or possibly submerge due to interaction with shoreline sediments.159 (Emphasis added.)
120. The Application states that there are a variety of crude oils that will be transported via the expanded pipeline and increased large oil carrier vessel traffic through T’Sou-ke’s Territory. These include diluted bitumen, synthetic crude oils, light and sweet crude oils, synthetic bitumen, and diluted synthetic bitumen. Diluted bitumen is expected to be a “large proportion” of the products to be transported.160
156 Hearing Transcript, Volume 19 (November 24, 2014), para 9544. 157 Exhibit C359-4-15 – T’Sou-ke Nation – Traditional Marine Resource Knowledge and Use Study Report (May 26, 2015) (A4L5U3), 40. 158 Exhibit C359-4-15 – T’Sou-ke Nation – Traditional Marine Resource Knowledge and Use Study Report (May 26, 2015) (A4L5U3), 79. 159 Exhibit C312-8-4 - Mark West Spill Risk Assessment Report (May 27, 2015) (A4Q1A2), 31. 160 Exhibit B18-31 - V8A_5.3.2.2_TO_F5.4.22_MAR_TRANS_ASSESS (December 17, 2013) (A3S4Y5), 8A-539.
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121. As explained by Dr. Tracy Collier, Science Director of the Puget Sound Partnership and former Professor at Washington and Oregon State Universities in the area of environmental toxicology who submitted expert evidence on behalf of Shxw'ōwhámel First Nation and Peters Band, oil is extremely toxic to aquatic species for a number of reasons:
Oil can harm aquatic biota by coating the organism (e.g. birds and fur bearing mammals), by coating the substrates on which they live (e.g. benthic species), by contaminating their food supply, by the toxicity of oil dissolved in water, by being ingested, or by being inhaled (e.g. marine mammals, birds, and terrestrial mammals). Fish could be exposed to dietary oil if they consume filter feeders, because filter feeders can accumulate droplets of oil (Neff and Burns 1996). Benthic fish species (those that live in association with sediments, such as sturgeon and sculpins) or species with a benthic life stage (e.g., eggs and embryos that are deposited in sediments or attached to rocks or vegetation), would also be exposed to oil that coats substrates. Because of gill respiration, all fish would be exposed to oil droplets in water, and to oil-derived compounds dissolved in water.161
122. Oil spills in the marine environment would affect marine species in all the same ways that a freshwater spill could affect freshwater species – including immediate fish kills, followed by reduced fitness, reduced reproductive functions, reduced disease resistance, increased damage to DNA, and potential development of cancer in surviving species.162
123. Concurrently, the mere perception of contamination can greatly affect fish consumption, with resulting implications to human health and T’Sou-ke members’ continued abilities to meaningfully exercise their Rights.163 This is in part due to the uncertainty about seafood safety following an oil spill, including:
(a) unknowns regarding the full extent of the spill;
(b) unknowns on the impacts on different species;
(c) the re-release of oil following storm events or tidal cycles (which may lead to a series of closures, openings, re-closures and re-openings of fisheries); and
(d) the chemical complexity of bitumen and the diluents that are used to formulate the diluted bitumen products with a corresponding absence of regulatory information about relevant chemicals.164
161 Exhibit C312-8-3 - Collier Impacts of Freshwater or Marine Spill of Aquatic Resources Report (May 27, 2015) (A4Q1A1), 19. 162 Exhibit C312-8-3 - Collier Impacts of Freshwater or Marine Spill of Aquatic Resources Report (May 27, 2015) (A4Q1A1), 38. 163 Exhibit C312-8-3 - Collier Impacts of Freshwater or Marine Spill of Aquatic Resources Report (May 27, 2015) (A4Q1A1), 39. 164 Exhibit C312-8-3 - Collier Impacts of Freshwater or Marine Spill of Aquatic Resources Report (May 27, 2015) (A4Q1A1), 36-37.
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124. Concurrently, T’Sou-ke is concerned that the increase in vessel traffic associated with the Project would adversely impact salmon and other marine species by further congesting migration paths and reducing available habitat.165 Large wakes occurring in increased frequency as a result of Project-related oil carrier vessels also raise concerns regarding erosion and the ability of T’Sou-ke members to continue to rely on the foreshore areas within their Territory to exercise their Rights.
125. T’Sou-ke is also concerned about the introduction of invasive species into waters within its Territory by way of transport in ballast water, and their outcompeting or predating native species or otherwise disrupting the marine and coastal ecosystem.166 This would disrupt T’Sou-ke’s ability both to harvest preferred species, and to harvest preferred species in preferred locations, including in areas of cultural and spiritual significance to T’Sou-ke. Among other species, T’Sou-ke is particularly concerned about such impacts on T’Sou-ke’s already reduced ability to exercise its Aboriginal subsistence and commercial harvesting of clams within its Territory.167
D. Impacts to Rights to Marine Navigation and Travel 126. As discussed above, T’Sou-ke’s ability to exercise its Aboriginal rights to marine navigation and travel have already been curtailed by existing shipping traffic through its Territory.168 A significant increase in this shipping traffic would further exacerbate these impacts, possibly permanently hindering T’Sou-ke members from travelling by boat in their Territorial waters and to reach preferred harvesting areas and culturally significant sites.
127. The Project-related shipping lanes run across some of the marine travel-ways relied on by T’Sou-ke members to exercise their Aboriginal rights to marine navigation and travel, and to access harvesting sites and participate in cultural activities. Although there are some alternative routes along the coast, there are no alternatives for those T’Sou-ke members wishing to exercise their Aboriginal rights to cross the Northern Straits.169
E. Impacts to Rights to Traditional Knowledge, Culture and Way of Life 128. Project interactions, especially, but not limited to, a significant oil spill, would exacerbate existing cumulative impacts on T’Sou-ke’s ability to support and maintain its traditional knowledge, culture and way of life.170
165 Exhibit C359-4-15 – T’Sou-ke Nation – Traditional Marine Resource Knowledge and Use Study Report (May 26, 2015) (A4L5U3), 49. 166 Exhibit C359-4-15 – T’Sou-ke Nation – Traditional Marine Resource Knowledge and Use Study Report (May 26, 2015) (A4L5U3), 61. 167 Exhibit C359-4-15 – T’Sou-ke Nation – Traditional Marine Resource Knowledge and Use Study Report (May 26, 2015) (A4L5U3), 61. 168 T’Sou-ke Final Submissions (January 12, 2016), para 93. 169 Exhibit C359-4-15 – T’Sou-ke Nation – Traditional Marine Resource Knowledge and Use Study Report (May 26, 2015) (A4L5U3), 89. 170 Exhibit C359-4-15 – T’Sou-ke Nation – Traditional Marine Resource Knowledge and Use Study Report (May 26, 2015) (A4L5U3), 81.
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129. It is not only large-scale spills that are of concern to T’Sou-ke, but rather that due to the chemical behaviour and persistence of oil and the existing baseline of impacts on its Rights, any spill, regardless of size or frequency, will have serious adverse effects on its Territory and its Rights.
130. As marine oil spills tend to have long-term impacts, T’Sou-ke is also concerned that a spill would also result in a long-term loss of harvesting knowledge and transfer of such knowledge to future generations, with a corresponding detrimental impact on its distinctive culture.171
F. Impacts to Right to Self-Governance 131. As discussed above, although past events have threatened T’Sou-ke’s Aboriginal right to self-governance, T’Sou-ke is taking active efforts to restore its ability to meaningfully exercise its right of self-governance, which lies at the core of its self-determination as a Nation.
132. In particular, possible Project impacts to T’Sou-ke’s stewardship efforts, economic development initiatives and ecosystem restoration activities threaten the Nation’s active efforts to meaningfully exercise its core Aboriginal right to self-governance.
PART IV REGULATORY FRAMEWORK 133. The Board’s purpose is to promote safety, security, environmental protection and economic efficiency in the Canadian public interest through its regulation of pipelines, energy development and trade.172
134. The Board has two regulatory roles with regards to the Project:
(a) Pursuant to the NEB Act, the Board must make recommendations on whether a Certificate should be issued for the Project; and
(b) Pursuant to the CEAA 2012, the Board must conduct an EA of the Project, which is a designated project within the meaning of section 2 of the CEAA 2012.
135. These separate roles are described in detail below.
A. Board’s role under the NEB Act 136. No company may begin the construction of a pipeline unless the Board has, by the issue of a Certificate, granted the company leave to construct the line.173 To obtain such a Certificate, the company must first file an application for a Certificate with the Board. Where the Board is of the opinion that an application for a Certificate in respect of a pipeline is complete, it is required under the NEB Act to issue a report to the Minister setting out:
171 Exhibit C359-4-15 – T’Sou-ke Nation – Traditional Marine Resource Knowledge and Use Study Report (May 26, 2015) (A4L5U3), 62, 76-77. 172 NEB Filing Manual (June 26, 2015), s. 1.1. 173 NEB Act, s. 31(a).
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(a) its recommendation as to whether or not the Certificate should be issued for all or any portion of the pipeline, taking into account whether the pipeline is and will be required by the present and future public convenience and necessity, and the reasons for that recommendation; and
(b) regardless of the recommendation that the Board makes, all the terms and conditions that it considers necessary or desirable in the public interest to which the Certificate will be subject if the Governor in Council were to direct the Board to issue the Certificate, including terms or conditions relating to when the Certificate or portions or provisions of it are to come into force.174
137. In making its recommendation in the requisite report, the Board must have regard to all considerations that appear to it to be relevant and directly related to the pipeline, and may have regard to the following factors:
(a) the availability of oil, gas or any other commodity to the pipeline;
(b) the existence of markets, actual or potential;
(c) the economic feasibility of the pipeline;
(d) the financial responsibility and financial structure of the applicant, the methods of financing the pipeline and the extent to which Canadians will have an opportunity to participate in the financing, engineering and construction of the pipeline; and
(e) any public interest that in the Board’s opinion may be affected by the issuance of the certificate or the dismissal of the application.175
138. Further, on an application for a Certificate, the Board must consider the representations of any person who, in the Board’s opinion, is directly affected by the granting or refusing of the application.176 As such, by being granted intervenor status in the Certificate application review of the Project, the Board must consider T’Sou-ke’s representations made throughout the regulatory review process, including in these final submissions.
139. The Board must carry out its mandate in a manner that respects the provisions of subsection 35(1) of the Constitution Act, 1982, which includes ensuring that the interests of Aboriginal groups in relation to the Project approval application are considered by it and by the project proponent.177
140. In making a recommendation on an application for a Certificate, the Board has full jurisdiction to hear and determine all matters, whether of law or of fact, which includes
174 NEB Act, s. 52(1). 175 NEB Act, s. 52(2). 176 NEB Act, s. 55.2. 177 Chippewas of the Thames First Nation v. Enbridge Pipelines Inc., 2015 FCA 222, paras 61-62.
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the jurisdiction to decide constitutional matters before it, including the issue of Crown consultation with Aboriginal groups.178
B. Board’s role under the CEAA 2012 141. In addition to its role under the NEB Act, the Board has specific duties as a responsible authority under the CEAA 2012 to conduct the EA of the Project.179 As a responsible authority, the Board is tasked with designing the EA review process for major pipelines, such as the Project, and issuing corresponding scoping and process decisions. As such, the Board is best-placed to receive Aboriginal concerns, and to integrate those into the design and structure of the EA, thereby carrying out the procedural aspects of the Crown’s duty to consult.180 Notably, the other two bodies regularly tasked with acting as responsible authorities under the CEAA 2012 – the Canadian Environmental Assessment Agency and the Canadian Nuclear Safety Commission – routinely carry out section 35 consultation duties when fulfilling their roles as such.
142. Courts have observed that the EA can play a vital role in the regulatory process by informing the Board’s decision as to whether or not to issue a Certificate.181 This is also reflected in the statutory requirement that the EA prepared for the Project be included in the Board’s report issued under section 52 of the NEB Act.182
143. The key criterion in issuing a decision on whether or not to approve a project under the CEAA 2012 is whether the project will cause significant adverse environmental effects that can or cannot be justified in the circumstances.
144. In conducting an EA, the Board must focus its assessment on the underlying purposes of the CEAA 2012, which include:183
(a) to protect the components of the environment from significant adverse environmental effects caused by a designated project;
(b) to ensure that designated projects are considered in a careful and precautionary manner to avoid significant adverse environmental effects;
(c) to promote communication and cooperation with aboriginal peoples with respect to EAs;
(d) to ensure that projects are considered in a careful and precautionary manner to avoid significant adverse environmental effects;
178 NEB Act, s. 12(2); Gitxaala Nation v. Canada, 2015 FCA 27, para 7. 179 CEAA 2012, ss. 15(b), 29. 180 Hamlet of Clyde River v. TGS-NOPEC Geophysical Company ASA (TGS), 2015 FCA 179, para 43. 181 Dene Tha' First Nation v. Canada (Minister of Environment), 2006 FC 1354 [Dene Tha’], para 36 (affirmed in Canada (Environment) v. Imperial Oil Resources Ventures Ltd., 2008 FCA 20). 182 NEB Act, s. 52(3). 183 CEAA 2012, s. 4(1).
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(e) to encourage federal authorities to take actions that promote sustainable development in order to achieve or maintain a healthy environment and a healthy economy; and
(f) to encourage the study of the cumulative effects of physical activities in a region and the consideration of those study results in EAs.
145. As indicated above, the precautionary principle and sustainable development permeate the CEAA 2012, and correspondingly the evaluation of projects and their effects by the responsible authorities, such as the Board, in their conduct of EAs.
146. Further, in conducting an EA, the Board’s Filing Manual requires that it also ensure that:184
(a) the potential effects of projects receive thorough consideration before any decisions are made allowing it to proceed;
(b) projects are not likely to cause significant adverse effects or contribute to significant adverse cumulative effects;
(c) there is an opportunity for meaningful public and Aboriginal participation; and
(d) its process and decisions or recommendations are transparent and reflect the input received from those participating in the EA and regulatory review process.
147. Pursuant to the CEAA 2012, the Board must take into account the following environmental effects in conducting an EA (amongst others):185
(a) a change that may be caused to fish or fish habitat (meaning spawning grounds and any other areas, including nursery, rearing, food supply and migration areas, on which fish depend directly or indirectly in order to carry out their life processes);
(b) a change that may be caused to the environment that would occur on federal lands or outside Canada; and
(c) with respect to aboriginal peoples, an effect occurring in Canada of any change that may be caused to the environment on:
(i) health and socio-economic conditions;
(ii) physical and cultural heritage;
(iii) the current use of lands and resources for traditional purposes; or
184 NEB Filing Manual (June 26, 2015). 185 CEAA 2012, s. 5(1).
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(iv) any structure, site or thing that is of historical, archaeological, paleontological or architectural significance
148. The CEAA 2012 also requires the Board to take into account the following factors in completing an EA:186
(a) the environmental effects of malfunctions or accidents that may occur in connection with the designated project, and the significance thereof;
(b) any cumulative environmental effects that are likely to result from the designated project in combination with other physical activities that have been or will be carried out, and the significance thereof;
(c) comments of interested parties, such as T’Sou-ke;
(d) mitigation measures that are technically and economically feasible and that would mitigate any significant adverse environmental effects of the designated project;
(e) the requirements of the follow-up program in respect of the designated project;
(f) the purpose of the designated project;
(g) alternative means of carrying out the designated project that are technically and economically feasible and the environmental effects of any such alternative means; and
(h) any change to the designated project that may be caused by the environment.
149. In a letter dated April 2, 2014, the Board outlined the specific scope of the above-listed factors that it would consider in the EA of the Project.187 In particular, the Board explained that it would consider potential effects of the Project within the following spatial and temporal boundaries:188
(a) construction, operation and maintenance, foreseeable changes, and site reclamation, as well as any other undertakings proposed by Trans Mountain or that are likely to be carried out in relation to the physical works proposed by Trans Mountain, including mitigation and habitat replacement measures;
(b) seasonal or other natural variations of a population or ecological component;
186 CEAA 2012, s. 19(1). 187 Exhibit A13-1 - Letter - Application for Trans Mountain Expansion Project - Factors and Scope of the Factors for the Environmental Assessment pursuant to the Canadian Environmental Assessment Act, 2012 (April 3, 2014) (A3V6J1). 188 Exhibit A13-1 - Letter - Application for Trans Mountain Expansion Project - Factors and Scope of the Factors for the Environmental Assessment pursuant to the Canadian Environmental Assessment Act, 2012 (April 3, 2014) (A3V6J1), 2-3.
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(c) any sensitive life cycle phases of species (e.g., wildlife, vegetation) in relation to the timing of Project activities;
(d) the time required for an effect to become evident;
(e) the area within which a population or ecological component functions; and
(f) the area affected by the Project.
150. Notably, the Board did not elaborate further on what manner those factors would be weighted or measured, thereby somewhat limiting the transparency to which it committed to in its Filing Manual.
PART V LEGAL DEFICIENCIES WITH THE BOARD’S REVIEW OF THE PROJECT 151. It is T’Sou-ke’s position that there are serious legal deficiencies with the Board’s review of the Application and the EA of the Project. As such, the Board does not currently have sufficient information on which to determine whether the Project’s benefits outweigh its potential risks sufficiently to justify making a recommendation that a Certificate be issued for the Project.
A. Failure to Ensure that Project is Adequately Described 152. Applications must enable the Board to:189
(a) evaluate the overall public good that the request can create as well as its potential negative aspects;
(b) weigh the various impacts; and
(c) make an informed decision that balances, among other things, the economic, environmental and social interests at that point in time.
153. In this instance, the Board issued its completeness determination on April 2, 2014, thereby initiating the commencement of the Project assessment and public hearing.190 This decision also triggered the start of the statutory 15-month timeline for the Board to submit its report to Cabinet.191 In making this unilateral decision, without seeking input from directly affected parties such as T’Sou-ke, the Board failed to ensure that it could make an informed decision that balanced the economic, environmental and social interests, as required under the NEB Act.
154. As discussed throughout these submissions, T’Sou-ke’s primary concern with the Project is the directly related increase in large oil carrier vessels carrying massive volumes of diluted bitumen through its Territory. If the Board is not adequately considering the
189 NEB Act, s. 1.1. 190 Exhibit A16-1 - Letter to Trans Mountain Pipeline ULC - Trans Mountain Expansion Project - Completeness Determination and Legislated Time Limit (April 3, 2014) (A3V6H7). 191 NEB Act, s. 52(4).
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corresponding impacts, which includes the total increase in carrying capacity of the Project, it is failing to ensure that T’Sou-ke’s concerns are addressed in the regulatory process.
155. In this instance, the Project definition did not include the actual volume of crude oil to be transported. Instead, the Board’s review of the Project is incorrectly based on the applied- for capacity of 540,000 barrels a day, while the actual capacity of the Project is at least 780,000 barrels a day.192 That additional capacity would be transported, not only through the pipeline, but also through large oil carrier vessels travelling directly through T’Sou- ke’s Territory. As such, the actual carrying capacity of the Project, including the oil carrier vessel traffic it triggers, has not and will not undergo proper scrutiny by the Board in this proceeding.
B. Failure to Sufficiently Identify Project-Related Issues 156. The List of Issues that the Board decided to consider in the hearing on the Project were outlined in the Hearing Order OH-001-2014, and included:193
(a) the need for the Project;
(b) the potential commercial impacts of the Project;
(c) the potential environmental and socio-economic effects of the Project, including any cumulative environmental effects that are likely to result from the project, including those required to be considered by the NEB’s Filing Manual;
(d) the potential environmental and socio-economic effects of marine shipping activities that would result from the Project, including the potential effects of accidents or malfunctions that may occur; and
(e) potential impacts of the Project on Aboriginal interests.
157. The Board is empowered to invite parties to propose issues or to suggest amendments to any formulated issues in order to assist it in formulating the relevant issues.194 In this instance, however, the Board did not exercise this right and T’Sou-ke was therefore not provided with an opportunity to comment on this List of Issues.195 As explained by Chief Gordon Planes:
T'Sou-ke was not consulted in the design of this process. It was constructed unilaterally without any of our input.196
192 Exhibit B32-3 - Trans_Mountain_Response_to_NEB_IR_No. 1_2_of_2 (May 14, 2014) (A3W9H9), 463 (Trans Mountains stated that “it has considered a theoretical future expansion scenario of 780,000 barrels per day average annual (sustainable) capacity on Line 2”). 193 Exhibit A15-3 - Hearing Order OH-001-2014 (April 3, 2014) (A3V6I2), Appendix I. 194 National Energy Board Rules of Practice and Procedure, 1995, SOR/95-208, s. 25(2). 195 Exhibit C359-4-2 – T’Sou-ke Nation – Sworn Affidavit of Chief Gordon Planes (May 26, 2015) (A4L5T0), 16. 196 Hearing Transcript, Volume 19 (November 24, 2014), para 9492.
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158. As such, T’Sou-ke’s Aboriginal perspective was not taken into account in relation to the issues to be considered in the review process. This resulted in an exclusion of the main activities of concern to T’Sou-ke based on Project impacts to its Rights.197
C. Failure to Conduct Fulsome Environmental Assessment i. Failure to Include Marine Shipping in Designated Project
159. The Board issued a Hearing Order on April 2, 2014 which excluded marine shipping from the definition of the “designated project” under the CEAA 2012.198 Instead, the Hearing Order indicated that the Board’s consideration of the environmental effects of marine shipping activities would be limited to the cumulative effects portion of the EA conducted under the CEAA 2012 and only “[t]o the extent there is potential for environmental effects of the designated project to interact with the effects of marine shipping.”199
160. Notably, however, the CEAA 2012 specifically provides that “designated products” are to include “any physical activity that is incidental to those physical activities”.200 As explained by Chief Gordon Planes, this definition mirrors T’Sou-ke’s understanding of the importance of a thorough review of projects in EAs:
We are also deeply troubled by both the NEB and Kinder Morgan’s definition of the project. We wonder why the shipping route is not designated project being reviewed.
We don’t see the oil pipeline as ending at the terminal. The oil pipeline continues along the water and across our territory, just through a different vessel. We do not see the distinction between land and water. We are very troubled by your and by Kinder Morgan’s characterization of the project and we feel you are failing in a fundamental way to properly review the project.201 (Emphasis added.)
161. As the large majority (71%) of the oil to be transported via the Project’s pipeline will be shipped from the Westridge Terminal directly through T’Sou-ke’s Territory, marine shipping activities are indisputably “incidental” to the Project.202 The exclusion of marine shipping activities is also puzzling given that they have been included in the scope of similar projects, such as the Northern Gateway pipeline project.203
197 Exhibit C359-4-2 – T’Sou-ke Nation – Sworn Affidavit of Chief Gordon Planes (May 26, 2015) (A4L5T0), 16. 198 Exhibit A15-3 - Hearing Order OH-001-2014 (April 3, 2014) (A3V6I2). 199 Exhibit C359-4-2 – T’Sou-ke Nation – Sworn Affidavit of Chief Gordon Planes (May 26, 2015) (A4L5T0), 16. 200 CEAA 2012, s. 2(1) 201 Hearing Transcript, Volume 19 (November 24, 2014), paras 9495-9496. 202 Exhibit B1-2 - V2_1of4_PROJ_OVERVIEW (December 16, 2013) (A3S0Q8), 2-12. 203 The Northern Gateway Project includes marine shipping activities in the “Scope of the Project” (Northern Gateway Panel Review, Volume 2, Appendix 4—Joint Review Panel Agreement and Terms of Reference— Appendix: Terms of Reference, Part 1: Scope of the Project, at 407). Similarly, a memorandum of understanding between the federal and Newfoundland governments regarding the Voisey’s Bay mine/mill development review process included “evaluation of the shipping corridors from the mine/mill to existing shipping lanes off the east
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162. The exclusion of marine shipping activities from the Project definition has resulted in a reduced evaluation of the full Project effects and assessment of appropriate mitigation measures. The effect of this is evidenced in the following excerpt from Trans Mountain’s Application, which notes the following:
While Trans Mountain can actively enforce restrictions on tankers docked at the Westridge Marine Terminal to comply with Trans Mountain operating practices and standards, once the tanker departs from the terminal, Trans Mountain has little direct control over the operating practices of the tankers or tugs as Project- related marine vessels are owned and operated by a third party. [...] As such, no direct mitigation has been proposed by Trans Mountain for effects associated with increased Project-related marine transportation.204 (Emphasis added.)
163. Notably, nothing in the CEAA 2012 permits marine shipping activities that are “incidental to” a project to be excluded from the “designated project” that must be assessed thereunder because the shipping falls outside the care and control of the proponent.
164. The Project-related marine shipping activities are not a minor consequence of the Project; instead, this significant increase in oil vessel traffic through T’Sou-ke’s Territory has potentially far-ranging impacts and lies at the core of the concerns raised by T’Sou-ke as a directly-impacted party. As this increase in marine shipping activities would be an inevitable result of approval of the Project, a refusal to adequately consider them renders the Board’s analysis of the Project wholly deficient and incomplete.
165. Further, the marine transport of the pipeline oil is not a separate issue that can be “hived off” from the EA or deferred until such time as the agency charged with finding a long- term solution for the transport of the oil seeks approval for that transport.205 The fact that existing shipping lanes will be used also does not negate the impact associated with a significant increase in oil vessel traffic within those shipping lanes.
166. In addition, unlike the circumstances in Forest Ethics Advocacy Association v. Canada (National Energy Board), this is not a case where the problem is the Board’s refusal to consider the downstream use of oil transported by the pipeline or larger, general issues, such as climate change.206 Instead, it is a matter of an assessment of the full extent of the Project, which includes not only the pipeline, but also the shipment of the oil carried through the pipeline across the territorial sea (which extends 12 nautical miles from the baseline) over which Canada has jurisdiction, and into the exclusive economic zone (which extends from the outer limit of the territorial sea outwards 200 nautical miles) over which Canada has the authority to conserve and manage all natural resources.207
coast of Labrador” (Citizens’ Mining Council of Newfoundland & Labrador Inc v. Canada (Minister of the Environment), 163 FTR 36, 1999 CarswellNat 348, para 11). 204 Exhibit B18-29 - V8A_4.2.12.2_TO_T5.2.2_MAR_TRANS_ASSESS (December 17, 2013) (A3S4Y3), 8A-315. 205 Ontario Power Generation Inc. v. Greenpeace Canada, 2015 FCA 186, paras 54, 58, 82. 206 Forest Ethics Advocacy Association v. Canada (National Energy Board), 2014 FCA 245, para 69. 207 Oceans Act, S.C. 1996, c. 31, ss. 4-5; United Nations Convention on the Law of the Sea, Part V.
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167. On this last point, it is also notable that the Board refused to consider the impacts of oil carrier vessel traffic beyond the 12 nautical mile territorial sea limit. As explained by Chief Gordon Planes:
Water moves: the Territory and resources upon which we rely for our identity as an Aboriginal peoples of Canada are at risk of being devastatingly impacted by a spill occurring in waters beyond the confines of the NEB’s review. In order to truly consider the potential adverse effects of the Project to our Aboriginal rights, title and interests, the environmental threats from oil carrier vessels needs to be evaluable throughout the entirety of the marine vessel trip.208 (Emphasis added.)
168. In summary, the failure to include marine shipping activities within the scope of the “designated project” creates the real risks that the environmental effects of marine shipping will not be considered as environmental effects of the Project for the purposes of the decision on whether the Project is likely to cause significant adverse environmental effects, and that marine shipping activities will not be subject to the mandatory conditions attached to a decision statement issued under the CEAA 2012. ii. Failure to Adequately Assess Risks of Oil Spills, Accidents and Malfunctions 169. The Application must provide both an assessment of the effects of a marine oil spill and the significance of those effects. Based on deficiencies in both of these areas, the Board is unable to adequately assess the risks to the marine environment, including to T’Sou-ke’s Territory and Rights therein, of oil spills, accidents and malfunctions associated with the Project. Some of the key deficiencies in the Application include the following:
(a) lack of comprehensive spill risk assessment;
(b) lack of environmental data on the marine environment;
(c) deficient oil spill trajectory modelling;
(d) outstanding knowledge gaps on the fate, behaviour and transport of dilbit and synbit products in the marine environment;
(e) deficient evaluation of appropriate oil recovery equipment, including failure to adequately consider the efficiency of oil recovery technologies at different marine water temperatures, especially those encountered in T’Sou-ke’s Territory which surface temperatures are heavily influenced by wind factors and currents and which temperatures change with depth; and
(f) lack of determination of the significance of the effects of accidents and malfunctions that may result from the release of diluted bitumen to the marine environment, including lack of accurate description of the shoreline characteristics within the Territory, which is required to assess the severity of an impact of an oil spill on various habitats.
208 Exhibit C359-4-2 – T’Sou-ke Nation – Sworn Affidavit of Chief Gordon Planes (May 26, 2015) (A4L5T0), 17.
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170. These deficiencies are discussed in detail below.
171. First, with regards to comprehensive spill risk assessments, standard EA practices generally require project proponents to:209
(a) consider the significance of potential effects;
(b) demonstrate if mitigation and contingency measures could reduce the potential effect to acceptable levels; and
(c) provide a well-reasoned determination of the acceptability of the proposed shipping of bitumen in order to answer the question of where and when is the proposed marine shipment of the product an acceptable (or unacceptable) risk to the environment and people.
172. Standard practice in risk assessments also entails an iterative assessment and re- examination of the results with the goal of reducing the likelihood and/or the consequences of a spill through mitigation and contingency planning to a point where either the overall effect (risk) on meeting project objectives (no significant effect) is acceptable, or feasible mitigation and contingency cannot reduce the risk of preventing significant effects.210
173. On behalf of the Pacheedaht First Nation, Pottinger Gaherty Environmental Consultants Ltd. (“Pottinger Gaherty”), a firm of environmental scientists with expertise in this subject area, completed a review of the Application against these standard practices, which review revealed omissions in the following key areas:211
(a) lack of overarching risk assessment methodology that was used consistently to answer defined EA questions;
(b) lack of complete assessment of risk that integrated an understanding of likelihood and consequence;
(c) lack of justifiable conclusions regarding the acceptability of unmitigated risk(s) of bitumen spills associated with marine transportation; and
(d) lack of clear demonstration that the contingency plans (mitigation) are sufficient (or not) to produce an acceptable risk.
209 Exhibit C269-21-6 - Exhibit 4 of Affidavit of Leslie Beckmann sworn May 27, 2015 (00251088xC6E53) (May 27, 2015) (A4L7D1), 4. 210 Exhibit C269-21-6 - Exhibit 4 of Affidavit of Leslie Beckmann sworn May 27, 2015 (00251088xC6E53) (May 27, 2015) (A4L7D1), 5. 211 Exhibit C269-21-6 - Exhibit 4 of Affidavit of Leslie Beckmann sworn May 27, 2015 (00251088xC6E53) (May 27, 2015) (A4L7D1), 23.
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174. As a result, Pottinger Gaherty concluded that the Application’s “lack of complete risk assessment limits a thorough understanding of the relative risks along the shipping route, based on reliable consideration of the probabilities and consequences of effects.”212
175. Second, as marine shipping activities were excluded from the definition of the “designated project”, there was only limited background information provided on the marine environment, including within T’Sou-ke Territory. As such, unlike other project components that were included in the defined “designated project” (such as the different pipeline segments), no specific environmental setting discussion or climate data was provided for the marine environment.
176. This is a key omission as the behaviour of spilled oil depends heavily on specific environmental processes and conditions. As explained in a 2013 report by Environment Canada, oil spilled in marine environments may take a variety of forms – including discrete floating tarballs and floating entrained-water-in-oil states – depending on various factors, such as the presence and size of sediments in the water column, the degree of evaporative weathering of the dilbit, and the level of mixing energy available.213 As noted by Environment Canada:214
The question of whether dilbit products spilled in the marine environment will float or sink depends on their exposure to a number of natural processes and the duration of exposure.
177. This lack of adequate environmental data impacts the ability to complete fulsome spill modelling and the identification of effective spill recovery technologies, as discussed below.
178. Third, the Application is deficient with respect to its oil spill trajectory modelling. The modelling therein did not analyze realistic thin-slick, high-wind and wave conditions, and should have considered quantitative data on wind speeds, surface salinity and currents as a function of direction, time and season, rather than generic accounts of weather and currents in the region. The data used in the Application was also limited to a single year. Inter-annual variations in storm frequencies and intensities, river discharges and other model input factors should have been considered in the Application and supporting studies.215
179. Fourth, in Environment Canada’s 2013 report (mentioned above), which acknowledged the serious environmental impacts associated with releases of diluted bitumen at sea, Environment Canada concluded that “knowledge gaps remain on the fate, behaviour and
212 Exhibit C269-21-6 - Exhibit 4 of Affidavit of Leslie Beckmann sworn May 27, 2015 (00251088xC6E53) (May 27, 2015) (A4L7D1), 24. 213 Exhibit C269-19-12 - Exhibits 53-54 of Affidavit of Arliss Daniels (Pacheedaht) sworn May 22, 2015 (May 26, 2015) (A4L5L2), 73. 214 Exhibit C269-19-12 - Exhibits 53-54 of Affidavit of Arliss Daniels (Pacheedaht) sworn May 22, 2015 (May 26, 2015) (A4L5L2), 74. 215 Exhibit C269-1-1 – Letter (February 19, 2014) (A3U8I9).
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transport of dilbit and synbit products in the marine environment, and the application of oil spill response technologies to enhance the natural attenuation of the products.”216
180. In particular, Environment Canada noted the following outstanding information gaps on the behaviour of dilbit products in the marine environment:
There is lack of information on the nature of sediment interaction with dilbit products, the rate of tarball formation and mixing energy to sediment loadings required to form tarballs. [...]
It is not well understood how synthetically weathered oil products relate to various degrees of weathering of dilbit products in the natural environment based on hours, days and weeks. [...]
Further meso-scale wave tank studies are required for other temperature ranges [outside 8.3 ± 1.3oC], to cover the whole range of surface sea temperatures experienced in the Canadian marine environment. These studies are important in order to determine how warmer and colder seawater temperatures will affect the fate and behaviour of dilbit products under natural sea states. In addition, there is a need for new spill treating agents that are effective on dilbit products in seawater at temperatures below 8oC.217
181. The Application relied heavily on the Gainford Study, which purpose was to further the knowledge of dilbit in general and, more specifically, to investigate the behavior of dilbit when spilled into a marine environment.218 On review, however, emergency response expert Mark West identified several limitations with the application of this study to the assessment of the behaviour of dilbit spilled into the marine environment, including:219
(a) only two crude oils were tested, thereby representing only a small fraction of the range of crude oils that would likely be transported;
(b) oil thicknesses and wind apparatus were used that were unlikely to create small oil droplet formation;
(c) no suspended sediments, clays, or plant matter were present, which would have increased the likelihood of the oil sinking;
(d) the tests did not include a range of salinities to determine at which salinity/densities the oils did submerge/sink; and
216 Exhibit C269-19-12 - Exhibits 53-54 of Affidavit of Arliss Daniels (Pacheedaht) sworn May 22, 2015 (May 26, 2015) (A4L5L2), 73. 217 Exhibit C269-19-12 - Exhibits 53-54 of Affidavit of Arliss Daniels (Pacheedaht) sworn May 22, 2015 (May 26, 2015) (A4L5L2), 77-78. 218 Exhibit B21-5 - V8C_TR_8C_12_TR_S7_01_OF_03_FATE_DILUT_BITUMEN_MAR_WATER (December 17, 2013) (A3S5G2). 219 Exhibit C312-8-4 - Mark West Spill Risk Assessment Report (May 27, 2015) (A4Q1A2), 74, 77.
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(e) the study was limited in time to stop at a point in time when the oils might have sunk (10 days).
182. Due to these limitations, the results of the Gainford Study cannot be reasonably used to represent many of the conditions in which crude oil could be spilled in relation to the Project-related marine shipping activities.220 Notably, although in its final submission Trans Mountain criticized some intervenors’ conclusions as being based on unsubstantiated or inappropriate material properties, it continued to rely on the findings of the Gainford Study without addressing the limitations identified above.221 Continued reliance on this limited study is extremely problematic as it impedes the Board from completing a comprehensive assessment of the Project’s full impacts, including those impacts on T’Sou-ke’s Territory and Rights.
183. Fifth, there was a deficient evaluation of appropriate oil recovery equipment in the Application. The challenges with existing technologies were acknowledged in Environment Canada’s 2013 report:222
The physical properties (e.g., density, viscosity, and adhesiveness) of these [dilbit] products limit the effectiveness of currently-available spill treating agents, thus restricting remediation and potentially contributing to the persistence of the products in marine environments where seawater temperatures is <8oC.
184. Although Environment Canada’s report reveals that the recovery of bitumen at temperatures below 8oC is particularly challenging, the Application included amendable weather conditions as a relevant criterion in its description of a response plan for marine spills.223 This is clearly inappropriate, and compounds the Board’s failure to adequately assess risks of oil spills, accidents and malfunctions associated with the Project.224
185. In addition, the Gainford Study relied on heavily in the Application also found that the three non‐mechanical countermeasures that were investigated for their ability to mitigate spilled dilbit under specific conditions were only effective on oil that had weathered less than 24 hours.225 This is particularly troublesome as it will most likely take much longer to recover oil in T’Sou-ke’s Territory, which often experiences extreme weather conditions that can limit navigation and the ability to promptly implement spill recovery technologies.
186. Further, while the oil containment booms described in the Application can work well when containing floating oil in relatively slow (less than 1 knot) currents, their ability to
220 Exhibit C312-8-4 - Mark West Spill Risk Assessment Report (May 27, 2015) (A4Q1A2), 74. 221 Exhibit B444-2 - Trans Mountain Revised Final Argument (clean) (December 15, 2015) (A4W6L8), 342-343. 222 Exhibit C269-19-12 - Exhibits 53-54 of Affidavit of Arliss Daniels (Pacheedaht) sworn May 22, 2015 (May 26, 2015) (A4L5L2), 75 (s. 6.0) 223 Exhibit B18-37 - V8A_5.7.3.1_TO_7.3_MAR_TRANS_ASSESS (December 17, 2013) (A3S4Z0), 8A-714. 224 Exhibit C269-21-6 - Exhibit 4 of Affidavit of Leslie Beckmann sworn May 27, 2015 (00251088xC6E53) (May 27, 2015) (A4L7D1), 24. 225 Exhibit C312-8-4 - Mark West Spill Risk Assessment Report (May 27, 2015) (A4Q1A2), 84.
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deflect floating oil away from sensitive areas deteriorates quickly in currents exceeding 3 knots.226
187. As such, the Application is deficient in its evaluation of appropriate oil recovery equipment, thereby further hindering the Board from completing a thorough assessment. This is particularly troublesome in light of the precautionary and sustainability objectives for EAs, as mandated in the CEAA 2012.
188. This uncertainty indicates the need for a multi-faceted and sophisticated spill response plan with different spill recovery technologies to effectively and promptly address varied spill scenarios that may arise at a given time depending on an assortment of factors, including the location and weather conditions at the time of the spill.
189. Sixth, contrary to the requirements of s. 19(b) of the CEAA 2012, the Application does not include a determination of the significance of the effects of accidents and malfunctions that may result from the release of diluted bitumen to the marine environment.227 Concurrently, as Trans Mountain determined that both credible worst case and smaller spills represented low probability, hypothetical events, it did not evaluate the corresponding potential effects for significance.228 These omissions further limit the Board’s ability to adequately assess the environmental effects of the Project.
190. Concurrently, the severity of an impact of an oil spill on various habitats depends on the type of oil involved, the physical and biological characteristics of the shoreline, and the way in which different species respond to oil. In the case of oil spills, the type of shoreline is an important factor in oil residency (how long oil remains on shore), and therefore the potential significance of an effect of a spill. To provide a valid assessment of the risk of significant effects to T’Sou-ke resources, the Application must first accurately describe the shoreline characteristics within the Territory.229 Notably, such a description was also missing from the Application.
191. Finally, contrary to Trans Mountain’s claim, marine shipping lanes are not similar to a public highway.230 Perhaps most obvious is the fact that a chemical spill, such as an oil spill, into the marine environment has far greater potential dispersion, and re-suspension, in water than on land, with corresponding increased challenges for the recovery of spilled products (as discussed above). In addition, impacts on the marine aspects of a First Nation’s traditional territory, such as Project-related oil spills within the marine environment of T’Sou-ke’s Territory, have significant impacts with potential long-term consequences to the Territory as a whole and to the Rights held therein and thereto.
192. Furthermore, the cumulative impacts associated with an increase in shipping traffic through ecologically and culturally sensitive areas are very different from those
226 Exhibit C312-8-4 - Mark West Spill Risk Assessment Report (May 27, 2015) (A4Q1A2), 16. 227 Exhibit C269-21-6 - Exhibit 4 of Affidavit of Leslie Beckmann sworn May 27, 2015 (00251088xC6E53) (May 27, 2015) (A4L7D1), 25. 228 Exhibit C358-13-15 - Vol 5 Tab 4A Appendix 1 Assessment of Spill Risk Report (May 26, 2015) (A4L6A6), vii. 229 Exhibit C269-1-1 – Letter (February 19, 2014) (A3U8I9). 230 Hearing Transcript, Volume 25 (December 17, 2015), para 12159.
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associated with an increase in traffic on a public highway. Notably, a recent study indicated that the addition of the Project alone would result in an increase in potential accident frequency of 5% and an increase in potential oil loss of 36% compared to the base case, with the majority of the increases in potential oil outflow from Project in the Haro Strait/Boundary pass waterway (+17.3%) and the East Strait of the Northern Straits (+10.6%).231
193. In summary, as noted by Chief Gordon Planes, “water moves”, and impacts thereon are therefore far different, and possibly far greater in magnitude than impacts on static land associated with a public highway. Thus, contrary to the claim made by Trans Mountain, the Project related shipping activities do represent a fundamental change to the risks which currently exist; in fact, the Project-related risks on the marine environment within T’Sou-ke’s Territory are significant and potentially irreversible.232 As such, a careful assessment of spill behaviour in different conditions is required, along with strategic planning for effective spill response, regardless of the size of the spill. As discussed above, significant information on this was lacking in the Application, thereby prohibiting the Board from fulfilling its duty and completing a comprehensive assessment of the Project and its potential impacts on T’Sou-ke’s Territory and Rights. iii. Failure to Take into Account T’Sou-ke’s Traditional Knowledge 194. As explained above, the CEAA 2012 specifically requires that EAs take into account effects on the current use of lands and resources for traditional purposes by Aboriginal peoples.233
195. The CEAA 2012 also empowers the Board to consider Aboriginal traditional knowledge in the EA of the Project. The value of Aboriginal traditional knowledge is well recognized, and it can assist the conduct of an EA in several ways, including:234
(a) providing relevant biophysical information, including historical information, that may otherwise have been unavailable;
(b) helping identify potential environmental effects;
(c) leading to improved project design and identifying site-specific traditional use interests relevant to routing;
(d) strengthening mitigation measures;
(e) contributing to the building of long-term relationships among Trans Mountain, affected Aboriginal groups, and the responsible government authorities; and
231 Exhibit C358-13-15 - Vol 5 Tab 4A Appendix 1 Assessment of Spill Risk Report (May 26, 2015) (A4L6A6), 86. 232 Hearing Transcript, Volume 25 (December 17, 2015), para 12161. 233 CEAA 2012, s. 5(1). 234 CEAA 2012, s. 19(3); Canadian Environmental Assessment Agency, Considering Aboriginal Traditional Knowledge in Environmental Assessments Conducted under the Canadian Environmental Assessment Act, 2012 (March 2015); Northern Gateway Panel Review (Volume 1), 24.
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(f) ultimately leading to better decisions at all stages of the Project planning, development and operation.
196. In this case, there was inadequate traditional knowledge and information on current use of lands and resources for traditional purposes by T‘Sou-ke included in the Application. As such, the Board was unable to fulfill the mandated requirements of the CEAA 2012.235
197. In addition, although subsection 19(3) of the CEAA 2012 provides that Aboriginal traditional knowledge may be taken into account, the Board did not specifically require this knowledge to be incorporated in the scope outlined in its letter on the factors that it would consider in the EA of the Project
198. Finally, as discussed further below, the failure to adequately consider T’Sou-ke’s traditional knowledge has also resulted in mitigation measures being based on general literature reviews and engagements with other potentially affected Aboriginal communities with different traditional marine resource use values than T’Sou-ke. iv. Failure to Assess Effects on T’Sou-ke’s Rights 199. As repeatedly noted in these final submissions, T’Sou-ke is deeply concerned about the impacts of the Project-related marine shipping activities on its Territory and Rights.
200. The normal operations mode of the Project would likely result in significant impacts on the current use of marine and foreshore resources by T’Sou-ke members, as well as on unique T’Sou-ke cultural and spiritual values, particularly in areas where T’Sou-ke’s Rights are already impaired because of unaddressed cumulative industrial impacts. Specifically, likely residual effects from the normal operations mode of the Project include:236
(a) a reduced ability of T’Sou-ke members to catch enough fish for their subsistence and cultural needs;
(b) a reduced ability of T’Sou-ke members to harvest foreshore and coastal resources including seafood, berries, mammals and waterfowl;
(c) a reduced ability or willingness of T’Sou-ke members to travel by boat within and adjacent to the Project footprint for subsistence harvesting, commercial fishing, or cultural activities;
(d) damage to, or loss of, invaluable cultural heritage sites, including burial grounds, due to pollution and garbage from ships washing up on the shoreline;
(e) loss of essential teaching areas and animal species required to pass on T’Sou-ke knowledge and practices to younger generations; and
235 CEAA 2012, s. 5(1)(c)(iii). 236 Exhibit C359-4-15 – T’Sou-ke Nation – Traditional Marine Resource Knowledge and Use Study Report (May 26, 2015) (A4L5U3), 10-11.
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(f) reduction in the daily practice of T’Sou-ke knowledge and culture (including harvesting, food processing, feasting and community-wide food sharing) due to a reduction in subsistence harvesting practices caused by impacts from the Project that could potentially persist for several generations.
201. In the event of a large-scale oil spill occurring in T’Sou-ke’s Territory, the impacts on T’Sou-ke’s use and occupancy, and implications for T’Sou-ke’s culture and Rights would be catastrophic and, at minimum, long-term in duration and possibly multi-generational to permanent in adverse effects outcomes. Specifically, likely residual effects from a large-scale oil spill from the Project would include the following:237
(a) multi-generational, potentially permanent adverse effects on the ability of T’Sou- ke members to practice their traditional mode of life and Aboriginal rights due to:
(i) inability of T’Sou-ke members to fish for subsistence or cultural needs due to destruction of fish populations;
(ii) inability of T’Sou-ke members to harvest coastal resources including seafood, berries, mammals, and waterfowl due to loss of key species;
(iii) damage to and/or loss of invaluable cultural heritage sites, including burial grounds; and
(iv) economic loss due to contamination of marine-related community economic development activities including oyster farm and ecotourism;
(b) loss of T’Sou-ke culture and knowledge due to the reduction in practice of cultural activities related to subsistence fishing, gathering, or hunting as a result of the destruction of subsistence resources, potentially for multiple generations; and
(c) psychosocial trauma in the event of a spill due to immediate and long-term damage and destruction of T’Sou-ke Territory and resources used for generations as a foundation for T’Sou-ke’s way of life.
202. As explained by environmental toxicology expert Dr. Collier, the Application does not adequately capture these impacts:
Also, similar to the case for scenarios of freshwater spills, a marine spill could be significantly larger than the scenarios imagined by Trans Mountain in the application materials. For example, if a loaded tanker were to suffer a catastrophic failure while it was underway after leaving the Westridge Marine Terminal, the amounts of oil that might be released into the marine waters of the Salish Sea could be substantially higher than imagined by Trans Mountain. In their application materials, Trans Mountain assumes a worst case spill scenario from a
237 Exhibit C359-4-15 – T’Sou-ke Nation – Traditional Marine Resource Knowledge and Use Study Report (May 26, 2015) (A4L5U3), 10-11.
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partially loaded Aframax tanker of 105,000 barrels of oil, whereas the capacity of an Aframax tanker can be over 800,000 barrels.238 (Emphasis added.)
203. T’Sou-ke’s concerns regarding marine spills in close proximity to environmentally and culturally sensitive areas within its Territory is also supported by Transport Canada’s January 2014 report entitled “Risk Assessment for Marine Spills in Canadian Waters; Phase 1: Oil Spills south of the 60th Parallel”, which concluded that:239
(a) the largest marine traffic volumes are observed in the Pacific sector;
(b) the zones with the highest probability of a large spill occurring are the waters around the southern tip of Vancouver Island;
(c) in British Columbia, environmental sensitivity index results indicate that the zones of highest potential impact are found on the south coast, including Vancouver Island; and
(d) the southern coast of British Columbia is one of the areas in Canada identified as being at the greatest risk from a large oil spill.
204. In summary, the Application fails to adequately consider the scope and magnitude of Project impacts to T’Sou-ke’s Territory. As such, the Board is unable to complete a thorough assessment of the Project-related effects on T’Sou-ke’s Rights. v. Failure to Adequately Identify and Assess Mitigation Measures 205. The Traditional Marine Knowledge and Use Report evaluated the mitigations proposed in the Application against identified Project interactions, and identified additional residual effects over and above those identified in the Application.
206. In particular the Traditional Marine Knowledge and Use Report identified the following gaps in the proposed mitigation measures:240
(a) the mitigation measures are not based on consultation outcomes with T’Souke, but rather on general literature review and results of engagement with other potentially affected Aboriginal communities that may not share the same traditional marine resource use values as T’Sou-ke;
(b) by considering traditional marine resource use as a single valued component, interactions of the Project with different aspects of T’Sou-ke traditional marine
238 Exhibit C312-8-3 - Collier Impacts of Freshwater or Marine Spill of Aquatic Resources Report (May 27, 2015) (A4Q1A1), 38-39. 239 Exhibit C269-22-3 - Appendix A (Part 1 of 3), Narrative of Chief Arliss Daniels d May 27, 2015 (May 27, 2015) (A4L7F4); Exhibit C269-22-4 - Appendix A (Part 2 of 3), Narrative of Chief Arliss Daniels d May 27, 2015 (May 27, 2015) (A4L7F5); Exhibit C269-22-5 - Appendix A (Part 3 of 3), Narrative of Chief Arliss Daniels d May 27, 2015 2015 (May 27, 2015) (A4L7F6). 240 Exhibit C359-4-15 – T’Sou-ke Nation – Traditional Marine Resource Knowledge and Use Study Report (May 26, 2015) (A4L5U3), 83-84.
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use and knowledge, including fishing, foreshore gathering, hunting, travel, and cultural activities are not adequately addressed;
(c) the proposed mitigation measures are generally not clear and measurable, and are not provided with a time frame during which the mitigation measure will be achieved, reducing the confidence that can be held in the success attributed to these mitigation measures both individually and in combination;
(d) while some of the presented mitigation measures may ultimately be relevant or useful in reducing residual effects, they often lack specificity and rely upon future processes of planning or consultation to develop their details, which makes their potential influence on actual anticipated impacts uncertain and again reduces the confidence that can be held in their success;
(e) while an oil spill response plan has been developed to mitigate the effects of potential accidents and malfunctions, there is no publically available information on how actual response would be implemented, rendering it unclear how this plan will provide appropriate measures against potential oil spill effects on T’Sou-ke’s traditional marine resource use values;
(f) loss of T’Sou-ke’s marine values based on a worst-case scenario oil spill is limited to monetary compensation, which fails to address how loss of culture, livelihood, and other intangible values associated with traditional marine resources will be addressed;
(g) the provision of updates on Project-related marine traffic and initiating an outreach program to communicate Project-related information does not mitigate the impacts of increased heavy tanker traffic on the ability and willingness of T’Sou-ke members to practice their rights in – and move through – the shipping lanes for the Project;
(h) most mitigation measures related to increased Project-related vessel traffic are deferred to third party oversight, and no actual mitigation measures are provided for many traffic-related impacts that will affect T’Sou-ke’s traditional marine use values;
(i) loss of marine-related economic opportunities such as aquaculture and ecotourism are not addressed as valid Project interactions nor are they mitigated against or accommodated for; and
(j) the proposed mitigation measures do not address the wider changes that will potentially occur on T’Sou-ke Territory due to Project-related increases in traffic in a regular operations scenario and in an oil spill scenario, including:
(i) a reduction in the cultural connection members feel toward the area in general due to increased traffic disturbances, contamination fears, the loss of harvesting sites, and increased noise; and
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(ii) a reduction of cultural continuity and in transmission of traditional knowledge due to a decline in cultural practices, avoidance of subsistence resources harvesting sites, or decline of important traditional resources.
207. In addition, as acknowledged in the Application, several residual Project effects will remain after mitigation measures are adopted – including:241
(a) sensory disturbance for marine users and marine mammals;
(b) disturbance of harvesting sites and activities;
(c) alteration or loss of subsistence marine resources (mammals, birds, fish, and plants) due to increased Project-related traffic and vessel wake;
(d) reduction in abundance of harvested resources;
(e) degradation of marine water quality and local air quality;
(f) increased physical injury or mortality of marine mammals due to a vessel strike;
(g) damage to community marine vessels and/or injury or loss of gear;
(h) loss of ability to practice culture and traditions; and
(i) economic loss due to disruption of marine-related community economic development activities.
208. To the extent it was addressed at all, there was insufficient accommodation for these residual effects provided for in the Application.242
209. In summary, based on the materials before it in the Application, it is the position of T’Sou-ke that the Board is unable to adequately identify and assess the adequacy and effectiveness of proposed mitigation measures to address the direct Project impacts on T’Sou-ke’s Rights.
PART VI INADEQUACY OF CROWN CONSULTATION A. Crown’s duty to consult triggered by the Board’s review of the Project 210. It is well established that the Crown has a legal and constitutional obligation to consult with Aboriginal peoples. This duty is triggered at a low threshold when the Crown has knowledge, real or constructive, of the potential existence of Aboriginal title, rights or interests, and contemplates a decision that may adversely impact them.243 The Supreme
241 Exhibit C359-4-15 – T’Sou-ke Nation – Traditional Marine Resource Knowledge and Use Study Report (May 26, 2015) (A4L5U3), 84. 242 Exhibit C359-4-15 – T’Sou-ke Nation – Traditional Marine Resource Knowledge and Use Study Report (May 26, 2015) (A4L5U3), 84. 243 Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73 [Haida Nation], paras. 16-38; Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43 [Rio Tinto], paras. 31-50; Mikisew, para. 55.
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Court of Canada has clearly recognized that consultation in some meaningful form is the necessary foundation of a successful relationship with Aboriginal peoples.244
211. The goal of consultation is not to be narrowly interpreted as the mitigation of adverse effects on Aboriginal title, rights and interests.245 Instead, consultation, which is grounded in the honour of the Crown, must be done in a timely and comprehensive manner and in good faith in the spirit of reconciliation:
The common thread on the Crown’s part must be “the intention of substantially addressing [Aboriginal] concerns” as they are raised, through a meaningful process of consultation. [...] the commitment is to a meaningful process of consultation. [...] 246
212. Notably, the duty of consultation owed by Aboriginal peoples provides a far more stringent constraint on the Crown than the duty of fairness at administrative law. It requires an exchange or dialogue that gives Aboriginal peoples meaningful input into the decision-making process.247
213. The type of government action that engages the duty to consult is not confined to government exercise of statutory powers, nor is it confined to decisions or conduct that have an immediate impact on lands and resources; a potential for adverse impact suffices.248
214. To be meaningful, consultation must take place when the project is being defined and continue until the project is completed.249 The duty to consult and accommodate will be rendered nugatory if it occurs too late in the decision-making process.250
215. As Canadian courts have recognized, involving First Nations at the early stages of high- level planning can be essential to proper consultation; shortcomings in the consultation process at a stage that serves as the basis for future decisions cannot be addressed on the basis that there will be further consultation.251
216. Consultation must occur on strategic, higher level decisions that may have an impact on Aboriginal claims and rights, such as the establishment of a review process for a major gas pipeline.252 Thus, although a particular plan may not by itself confer any rights, if it
244 Beckman v. Little Salmon/Carmacks First Nation, 2010 SCC 53 [Beckman], para 55. 245 Dene Tha', para 82. 246 Haida Nation, paras 16, 20, 25, 42, 189; Delgamuukw, para 168; Council of the Innu of Ekuanitshit v. Canada (Attorney General), 2014 FCA 189, para 84; Rio Tinto, para 31; Gitxaala Nation v. Canada (Transport, Infrastructure and Communities), 2012 FC 1336, para 47. 247 White River First Nation v. Yukon Government, 2013 YKSC 66 [White River], paras. 108, 112. 248 Rio Tinto, paras 42, 44. 249 Kwikwetlem First Nation v. British Columbia (Utilities Commission), 2009 BCCA 68, para 70. 250 The Squamish Nation et al v. The Minister of Sustainable Resource Management et al, 2004 BCSC 1320; Musqueam Indian Band v. British Columbia (Minister of Sustainable Resource Management), 2005 BCCA 128; Taku River Tlingit First Nation v. British Columbia (Minister of Environment), 2014 BCSC 1278, paras 67-71; Fort Nelson First Nation v. British Columbia (Environmental Assessment Office), 2015 BCSC 1180, para. 254. 251 White River, para 127; Nlaka’pamux, para 97. 252 Rio Tinto, paras 42, 44.
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sets up the means by which a whole process will be managed, it is a process in which the rights of Aboriginal peoples will be affected and thereby attracts a duty of consultation.253
217. The Crown, even where a duty to consult is at the low end of the spectrum, must engage directly with the affected First Nation and ensure a full and fair consideration of all views presented.254 The duty owed to First Nations cannot simply be discharged by providing a venue for First Nations to be heard. It is not merely a check-in procedure; rather, a key requirement in honourable consultation is responsiveness.255 Meaningful consultation requires testing and being prepared to amend proposals or modify the governments’ substantive position in light of information received.256 Wherever possible, First Nations’ concerns should be demonstrably integrated into the proposed plan of action.257
218. Where mitigation measures are adopted in response to a First Nation’s concerns, these should be developed in consultation with that First Nation.258 Concurrently, consultation that excludes from the outset any form of accommodation is meaningless.259
219. Efforts to increase the efficiency of a regulatory process cannot be undertaken at the expense of the Crown fulfilling its duty to consult. As recently explained by the BC Court of Appeal:
The Crown’s duty to act honourably toward First Nations makes consultation a constitutional imperative. Difficult as it might have been to fulfill, it could not be compromised in order to make the process more efficient.260
220. The Crown has made it clear to T’Sou-ke that it intends to rely on the Board’s process to fulfill its constitutional duties to consult and accommodate T’Sou-ke.261 As described below, however, the Crown is relying on a process that is designed so that T’Sou-ke’s concerns and Rights are not being adequately reviewed or considered, and which fails to uphold the honour of the Crown which requirements are described, above.
B. T’Sou-ke’s Strong Claims to Aboriginal Title and Rights 221. As described throughout these written submissions, T’Sou-ke has a strong claim to its Rights, which are intricately connected to the land and waters from which its culture, heritage, language and traditions arose. T’Sou-ke is spiritually, culturally, physically, mentally, and emotionally tied to its Territory.
253 Dene Tha', paras 107-108, 110. 254 Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), [2004] 3 S.C.R. 550, 2004 SCC 74 [Taku River], para. 25; Mikisew, para. 64; Beckman, paras 74-75. 255 Taku River, para 25. 256 Haida Nation, para 46; White River, paras 108, 111. 257 Mikisew, para 64. 258 Mikisew, para 20. 259 Mikisew, para 54. 260 Nlaka’pamux Nation Tribal Council v. British Columbia (Environmental Assessment Office), 2011 BCCA 78 [Nlaka’pamux], para 68. 261 Exhibit C359-4-14 - T Sou-ke Nation - Exhibit L to Chief Planes Sworn Affidavit (May 26, 2015) (A4L5U2); Exhibit C249-9-1 - NRCan Written Evidence Submission TMX 27May2015 (May 27, 2015) (A4Q0V2).
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222. The fact that T’Sou-ke is in an advanced stage of treaty negotiations with the Crown indicates an acknowledgment by the Crown of T’Sou-ke’s strong claim to Rights in its Territory.262 Pending resolution of these claims, the honour of the Crown requires that T’Sou-ke’s Rights are “determined, recognized and respected” through Crown consultation and accommodation to prevent damage thereof.263
C. Potential for Serious Impacts to T’Sou-ke’s Aboriginal Title and Rights 223. The Project has the potential to significantly impact T’Sou-ke members’ abilities to meaningfully exercise their Rights and use the resources within their Territory that T’Sou-ke has relied on for generations.
224. As discussed in detail above, the normal operations mode of the Project would likely result in significant impacts on the current use of marine and foreshore resources by T’Sou-ke members, as well as to unique T’Sou-ke cultural and spiritual values, particularly in areas where T’Sou-ke’s Rights are already impaired due to unaddressed cumulative industrial impacts.264
225. In addition, in the event of a large-scale oil spill occurring in proximity to areas used by T’Sou-ke members, the impacts on T’Sou-ke’s use and occupancy, and implications for T’Sou-ke’s culture and Rights, would be catastrophic and, at minimum, long-term in duration and possibly multi-generational to permanent in adverse effects outcomes.265
226. As such, the potential for serious impacts of the Project, including the directly related marine shipping activities, on T’Sou-ke’s Rights is extremely high.
D. Deep Consultation Required 227. The content of the duty to consult and accommodate falls upon a spectrum dependent upon the prima facie strength of the case supporting the existence of the rights or title, and the seriousness of the potentially adverse effect upon the rights or title claimed.266
228. As described above, T’Sou-ke holds strong claims to Rights to and in its Territory, including the marine shipping lanes directly related to the Project. Concurrently, the seriousness of the potentially adverse effects of the Project, including the directly-related marine shipping activities, on T’Sou-ke’s Rights is great with the risks of non- compensable and long-term damage being high. As such, the Crown is required to undertake deep consultation with T’Sou-ke.267 Notably, the Crown itself supports this
a 48. 264 Exhibit C359-4-15 – T’Sou-ke Nation – Traditional Marine Resource Knowledge and Use Study Report (May 26, 2015) (A4L5U3), 10-11. 265 Exhibit C359-4-15 – T’Sou-ke Nation – Traditional Marine Resource Knowledge and Use Study Report (May 26, 2015) (A4L5U3), 10-11. 266 Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73 267 Haida Nation at para 44
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finding that the depth of consultation required with T’Sou-ke in this case is at the high level of the spectrum.268
229. As explained by the Supreme Court of Canada, although the precise requirements will vary with the circumstances, deep consultation may entail 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.269
230. Formal participation in decision-making processes provides one avenue by which T’Sou- ke can consider providing its consent to the Project. The issue of consent is closely tied to the right of self-governance and self-determination. The United Nations Declaration on the Rights of Indigenous Peoples requires states to consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources.270 Such consent performs a safeguard role for indigenous peoples’ fundamental rights, and T’Sou-ke respectfully submits such consent is required here before any approvals are granted for the Project which directly related marine shipping activities entails a “use” of the marine aspects of T’Sou-ke’s Territory, over which it holds Aboriginal title.271
231. The importance of consent was also recently recognized by the Supreme Court of Canada:
The right to control the land conferred by Aboriginal title means that governments and others seeking to use the land must obtain the consent of the Aboriginal title holders. [...]
Governments and individuals proposing to use or exploit land, whether before or after a declaration of Aboriginal title, can avoid a charge of infringement or failure to adequately consult by obtaining the consent of the interested Aboriginal group.272
232. The recently elected federal government has also made important commitments to renew the relationship between Canada and Indigenous peoples, including a plan to move towards a Nation-to-Nation relationship based on recognition, rights, respect, cooperation
268 Exhibit C249-9-2 - NRCan Written Evidence ANNEX A-K 27May15 (May 27, 2015) (A4Q0V3), Annex E. 269 Haida Nation, para 44. 270 Outcome Document of the High-Level Plenary Meeting of the General assembly: The World conference on Indigenous peoples, 15 September 2014, available online: < http://www.un.org/en/ga/president/68/pdf/letters/9152014WCIP%20- %20CFs%20on%20Draft%20Outcome%20Document.pdf>, para 20. 271 United Nations General Assembly Report A/HRC/24/41, Report of the Special Rapporteur on the rights of indigenous peoples, James Anaya, 1 July 2013, available online: < http://unsr.jamesanaya.org/docs/annual/2013-hrc- annual-report-en.pdf>, para 33. 272 Tsilhqot’in Nation v. British Columbia, [2014] 2 SCR 257, 2014 SCC 44 [Tsilhqot’in], paras 76, 97.
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and partnership.273 To this end, the federal government has committed to fully implementing the United Nations Declaration on the Rights of Indigenous Peoples. As such, the importance of consent, which T’Sou-ke has long expounded, now has the support both from the highest level of Canadian courts and the federal government itself.
E. Lack of Crown Consultation to Discharge its Constitutional Duties to T’Sou-ke 233. T’Sou-ke has never been meaningfully consulted in regards to the Project even though its Rights clearly stand to be significantly adversely impacted by it. As explained by Chief Gordon Planes, this lack of consultation is of great concern to T’Sou-ke:
As sovereigns of our territory, we take great issue with the Crown’s lack of involvement in this process. The Crown appears to be attempting to discharge its constitutional duties to our nation through the NEB process. We are a government and we should be engaging in government-to-government discussions with the Crown with regards to this major project, but the Crown has not approached us at all to engage in consultation and the NEB is not treating us as a jurisdiction in this process. We feel this is a disrespect to our nation and it is in direct violation of the Crown’s constitutional right -- constitutional duties to us.274 (Emphasis added.)
234. The Crown has failed to consult T’Sou-ke at several stages in the regulatory process, including:
(a) the design of Board’s hearing process and the Project’s EA process, including corresponding hearing orders outlining key decisions rendered by the Board;
(b) the design of the consultation process; and
(c) the design of proposed terms and conditions before they were drafted.
235. As discussed above, recent amendments to the NEB Act and the CEAA 2012 have resulted in the Board being made responsible for designing the EA review process for major pipelines, such as the Project, and corresponding scoping and process decisions. As a result, the Board is best-placed to receive Aboriginal concerns, and to integrate those into the design and structure of the EA, thereby carrying out the procedural aspects of the Crown’s duty to consult.275
236. The case law is clear that scoping decisions (determining what constitutes the designated project as well as the specific factors that must be assessed and the scope of those factors) trigger the Crown’s duty to consult, which must be discharged before such decisions are
273 Statement by Prime Minister on release of the Final Report of the Truth and Reconciliation Commission, December 15, 2015, available online:
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made.276 In this instance, however, the Crown and the Board failed to ensure adequate consultation before making several key design and scoping decisions.
237. First, as discussed above, although the Board is empowered to invite parties to propose issues or to suggest amendments to any formulated issues in order to assist it in formulating the relevant issues, and although the Crown was required to consult First Nations, such as T’Sou-ke, before this key scoping decision was made, T’Sou-ke was not provided with any opportunity to comment on the List of Issues.277
238. Further, neither the Crown nor the Board conducted any consultations on the completeness determination of the Application. In a letter dated April 2, 2014, the Board responded to complaints regarding the incompleteness of the Application, explaining its procedures as follows:
The Board has stated that the completeness determination was an initial threshold question where the Board determines if an application is complete to proceed to assessment. The Board does not typically seek comments on completeness and makes its completeness determination before deciding which participants it will hear from on a given application. For this Application, the Board has stated that, if it determines the Application is complete, it will hold a public hearing and make decisions about participation.278
239. As such, T’Sou-ke was again not provided any opportunity to comment on this important decision in the establishment of the review process for the Project, which is a strategic, higher level decision having an impact on its Rights, which thereby attracts a consultation duty.279
240. Correctly deciding matters such as initial completeness evaluations are key to setting the stage for the process going forward. Subsequent opportunities to test Trans Mountain’s evidence by asking questions, filing evidence, and making final arguments cannot remedy errors made at the initial threshold stages. This is particularly true where parties directly affected by an application, such as T’Sou-ke, are also not granted an opportunity to provide comments on important issues missing from the application, thereby limiting the extent to which they can engage in debate in the subsequent hearing process.
241. This lack of early consultation led to the submission of a letter to the Crown on November 28, 2014 by T’Sou-ke and 11 other First Nations whose Aboriginal rights and title stand to be impacted by the Project. In this letter, T’Sou-ke and the other signatories:280
276 Nlaka’pamux, para 97. 277 National Energy Board Rules of Practice and Procedure, 1995, SOR/95-208, s. 25(2); Exhibit C359-4-2 – T’Sou-ke Nation – Sworn Affidavit of Chief Gordon Planes (May 26, 2015) (A4L5T0), Planes Affidavit, 16. 278 Exhibit A16-1 - Letter to Trans Mountain Pipeline ULC - Trans Mountain Expansion Project - Completeness Determination and Legislated Time Limit (April 3, 2014) (A3V6H7). 279 Rio Tinto, paras 42, 44. 280 Exhibit C312-7-8 - Exhibit F to A. James Affidavit (May 27, 2015) (A4L9V6).
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(a) expressed concerns regarding the regulatory review of the Project and the lack of consultation thereon; and
(b) asked the Crown to work with T’Sou-ke to develop a meaningful consultation process for the Project.
242. Over two months later, on February 6, 2015, Timothy Gardiner on behalf of Natural Resources Canada wrote to T’Sou-ke, to “formally” communicate the federal Crown’s approach to consultation for the Project. Critically, it did so more than 14 months after Trans Mountain had filed its Project description with the Board. In that letter, Mr. Gardiner stated that the Crown “will rely on the NEB [Board] review process, to the extent possible” to satisfy its duties to consult Aboriginal peoples.281
243. The letter of February 6, 2015 also stated that there would be four phases of Crown consultation: Phase I (early engagement), Phase II (NEB hearing), Phase III (government decision), and Phase IV (regulatory authorizations).
244. By the date of the letter, however, Phase I had already elapsed, and Phase II was already months underway without any consultation having occurred with T’Sou-ke. It cannot be said that this type of “opportunity” to participate in fundamentally inadequate consultations preserves the honour of the Crown in its dealings with T’Sou-ke.282
245. Further, although Phase III does consist of consultation post-hearings, those hearings are for the purpose of determining if any concerns have not been fully addressed through the Board’s hearing process; they do not stand on their own. In addition, the short time frame proposed (a mere three months) indicates that the depth of consultation intended at Phase III will be limited. Any flaws at Phase II cannot be simply “cleaned up” at Phase III, over the course of three short months. As such, the Crown is clearly relying upon an incomplete process to fulfill its constitutional duties to T’Sou-ke.
246. Finally, Canadian courts have held that Aboriginal communities should be provided with the capacity to participate in the consultation process.283 The regulatory review process for the Project is highly technical and requires substantial resources to review the high volume of documents provided and to prepare adequate submissions.
247. The Board provided minimal funding to intervenors to participate in the complex regulatory process for a Project of this magnitude. This amount only covered the smallest fraction of the total cost incurred by T’Sou-ke to meaningfully participate in the process.284
248. To properly participate in the regulatory review, T’Sou-ke required legal advice, expert studies and significant commitments from its own limited community personnel and resources. T’Sou-ke participated in the traditional oral hearings for the Project using
281 Exhibit C359-4-14 - T Sou-ke Nation - Exhibit L to Chief Planes Sworn Affidavit (May 26, 2015) (A4L5U2); 282 Chartrand, para 69. 283 White River, para 108 284 Hearing Transcript, Volume 19 (November 24, 2014), paras 9493-9494.
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community funds that were supposed to be allocated for other purposes.285 Without adequate funding, T’Sou-ke has not been provided an opportunity to meaningfully engage in the regulatory process for the Project.
249. In conclusion, it would be a legal error for the Board to make recommendations on the Application at this time as the Crown has not yet discharged its duty to consult T’Sou-ke with respect to the Application. The Board is also unable to make recommendations based on the outcome of consultation because consultation has not yet occurred.
PART VII REQUESTED RELIEF 250. As described in these submissions, there are many outstanding issues with the review of the Project.
251. The Project raises the potential for significant adverse effects on T’Sou-ke as a Nation, to its individual members, and to T’Sou-ke’s constitutionally protected Rights across its Territory.
252. From the beginning, however, there has been a failure to adequately assess or take into account these effects by the Board. Concurrently, the Crown has not discharged its constitutional duty to consult with T’Sou-ke regarding the Project or the associated impacts on T’Sou-ke’s Rights. A remedy is required that addresses these failings in a real, practical, effective and fair way.286
253. T’Sou-ke respectfully submits that the appropriate remedy in these circumstances is to require the Crown to carry out consultation prior to proceeding further with the proposed government conduct, specifically, granting the Certificate for the Project.287 Concurrently, significant portions of the EA remain outstanding, and must be addressed before any decision or recommendations are made on the Application.
254. T’Sou-ke therefore respectfully submits that a Certificate should not be issued for the Project until these matters are remedied. Further work is required to achieve a true reconciliation of T’Sou-ke Aboriginal interests and pre-existing society with the assertion of Crown sovereignty and interests of the broader society.288
255. Reconciliation and the honour of the Crown remain fundamental guiding principles for the Crown to adhere to in Aboriginal consultation and planning processes, particularly in the management of natural resources. As explained by the Supreme Court of Canada:
The reconciliation of Aboriginal and non-Aboriginal Canadians in a mutually respectful long-term relationship is the grand purpose of s. 35 of the Constitution Act, 1982.[***]
285 Hearing Transcript, Volume 19 (November 24, 2014), paras 9493-9494. 286 Dene Tha', para 131. 287 Rio Tinto, para 37. 288 Tsilhqot’in, para 139; Manitoba Metis Federation Inc. v. Canada (Attorney General), 2013 SCC 14, para 66.
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The historical roots of the principle of the honour of the Crown suggest that it must be understood generously in order to reflect the underlying realities from which it stems. In all its dealings with Aboriginal peoples, from the assertion of sovereignty to the resolution of claims and the implementation of treaties, the Crown must act honourably. Nothing less is required if we are to achieve “the reconciliation of the pre-existence of aboriginal societies with the sovereignty of the Crown”: Delgamuukw, supra, at para. 186, quoting Van der Peet, supra, at para. 31.289
256. The Yukon Court of Appeal recently issued a decision that speaks to appropriate remedies in these types of circumstances. In particular, the court determined that the appropriate remedy for the government’s failure to honour a designated land use planning process was to return the parties to the point at which the failure began.290 The relevant point in time was that at which the government failed to properly execute its duties which then derailed the dialogue that was essential to the envisioned reconciliation.
257. In the present case, the Board’s failure to require a sufficient List of Issues, and the Crown’s failure to consult T’Sou-ke on that List of Issues, was the key point in time at which the requisite dialogue for reconciliation with respect to the Project effects on T’Sou-ke’s Rights was derailed. As such, this marks the point to which the Project assessment process must return. As explained by the Yukon Court of Appeal:
That is the status quo ante, or state that existed before the breach, to which the “breachingˮ party should be returned to allow it to perform its duties appropriately. [...] And it is a status quo ante which best serves the goals of achieving reconciliation.291
258. In the alternative, T’Sou-ke respectfully submits that the Board should refrain from granting any Project approvals until the Crown has discharged its consultation duties.
259. Regardless of the ultimately remedy selected, Canada must immediately take steps to initiate meaningful consultations with T’Sou-ke.
PART VIII DRAFT TERMS AND CONDITIONS 260. The Board filed its draft terms and conditions for the Project Certificate on August 12, 2015. On review, T’Sou-ke submits that the Project impacts to its Rights are not sufficiently dealt with in the Board’s proposed terms and conditions.
261. T’Sou-ke submits that the draft terms and conditions should be revised in accordance with the recommendations set out below. These revisions are necessary to ensure that the risks and effects of the Project are adequately mitigated and so that the Project is designed, constructed and operated in a safe manner that protects human health and the environment, as well as T’Sou-ke’s Rights. In making these recommendations, T’Sou-ke
289 Beckman, para 10; Haida Nation, para 17. 290 The First Nation of Nacho Nyak Dun v. Yukon, 2015 YKCA 18 [Nacho Nyak Dun], para 114. 291 Nacho Nyak Dun, paras 168, 169.
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notes that the Board’s recommendation report may include additional environmental considerations that are broader than those required to be considered under legislation but that the Board deems important and appropriate in the circumstances.292
262. Specifically, T’Sou-ke respectfully submits that the Board should revise its draft terms and conditions for the Project as follows:
(a) Condition 7 – Trans Mountain must maintain a similar record for complaints made by directly impacted parties, such as T’Sou-ke.
(b) Condition 8 – Trans Mountain must implement commitments made to directly impacted parties, such as T’Sou-ke, and regularly update these parties on the status of the applicable commitments.
(c) Condition 9 – Trans Mountain must commit to fulfilling similar requirements for all changes in shipping routes through T’Sou-ke’s Territory.
(d) Condition 17 – Trans Mountain must prepare a similar plan for monitoring and addressing adverse socio-economic effects of the marine shipping activities on directly impacted parties, including T’Sou-ke, during operation.
(e) Condition 19 – Trans Mountain must prepare a similar air emissions management plan for Project-related marine shipping activities, which includes air monitoring station(s) at locations within T’Sou-ke’s Territory as determined in consultation with T’Sou-ke.
(f) Condition 29 – Trans Mountain must prepare a risk assessment of Project-related marine shipping activities, including the cumulative risk associated with collisions with other vessels in or adjacent to the Project’s shipping lanes.
(g) Condition 44 – Trans Mountain must specifically include the southern resident killer whales, whose critical habitat includes the trans-boundary waters of the Northern Straits, in its mitigation and habitat restoration plans.
(h) Condition 46 – Trans Mountain must include Project-related marine shipping lanes in the requirements outlined under the Board’s draft condition 46.
(i) Condition 64 – Trans Mountain must prepare an environmental protection plan with specific procedures and policies for the Project-related marine shipping activities.
(j) Condition 77 – Trans Mountain must meaningfully engage with directly impacted parties, including T’Sou-ke, in the drafting of this plan and provide it to these same parties at the same time as it is filed with the Board.
292 National Energy Board, FAQs on Environmental Assessments, available online:
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(k) Condition 84 – Trans Mountain must meaningfully engage with Aboriginal groups, including T’Sou-ke, in the drafting of these reports, the mitigation measures proposed therein and how the mitigation measures will be incorporated into environmental protection plans, including environmental protection plans for marine shipping activities.
(l) Condition 108 – Trans Mountain must include details on the financial resources and secured sources of funding that will be capable of covering costs of liabilities for, without limitation, clean-up, remediation, damage to T’Sou-ke’s Rights, and other damages caused by the Project-related marine shipping activities.
(m) Condition 114 – Trans Mountain must provide T’Sou-ke with a meaningful opportunity to review and comment on the commitments related to oil tanker traffic and enhanced oil spill response, including training and provision of oil spill recovery equipment to T’Sou-ke members, which comments Trans Mountain must carefully consider and seek to incorporate into the standards.
(n) Condition 115 – Trans Mountain must provide copies of the Tanker Acceptance Standards to T’Sou-ke at the same time as it is required to provide them to the Board, along with an opportunity for T’Sou-ke to review and comment on such standards, which comments Trans Mountain must carefully consider and seek to incorporate into the standards.
(o) Condition 119 – Trans Mountain must prepare Emergency Preparedness and Response Exercise and Training Programs for marine vessel related oil spills within T’Sou-ke’s Territory in consultation with T’Sou-ke that includes, at minimum, similar requirements as those outlined in the Board’s draft condition 119. Trans Mountain must file a copy of the completed program with T’Sou-ke, and must review such program with T’Sou-ke and revise it as appropriate at least every five years or more frequently if so requested by T’Sou-ke.
(p) Condition 124 – Trans Mountain must prepare an Emergency Response Plan for marine vessel related oil spills within T’Sou-ke’s Territory in consultation with T’Sou-ke that includes, at minimum, similar requirements as those outlined in the Board’s draft condition 124. Trans Mountain must file a copy of the completed plan with T’Sou-ke once completed, and must review such plan with T’Sou-ke and revise it as appropriate at least every five years or more frequently if so requested by T’Sou-ke.
(q) Condition 126 – Trans Mountain must include in the requisite report a summary of issues or concerns raised by T’Sou-ke and how Trans Mountain has or will address them, and must provide a copy of the requisite report to T’Sou-ke at the same time as it files the report with the Board.
(r) Condition 128 – Trans Mountain must include a discussion on how its marine mammal protection program aligns with T’Sou-ke’s stewardship efforts, which
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discussion must be based on the outcomes of meaningful engagement with T’Sou- ke.
(s) Condition 132 – Trans Mountain must prepare a noise management plan to monitor and propose effective mitigation measures for acoustic underwater noise associated with the increased Project-related marine traffic through T’Sou-ke’s Territory (which effects on the southern resident killer whale population Trans Mountain has acknowledged may be significant).293
(t) Condition 136 – Trans Mountain must complete full-scale exercises of releases of diluted bitumen into T’Sou-ke’s Territory as a result of a release from Project- related marine shipping activities.
(u) Condition 136 – Trans Mountain must meaningfully engage with T’Sou-ke in the effectiveness and non-compliances of its marine-shipping commitments, and must provide a copy of the requisite report to T’Sou-ke at the same time as such report is provided to the Board.
263. Finally, T’Sou-ke submits that a comprehensive spill risk assessment remains outstanding and requires thorough field studies to fully understand the marine environment through which the Project-related oil vessels will travel. In addition, there must be joint spill management planning with First Nations, such as T’Sou-ke, whose traditional territories the shipping lanes cross directly through. This includes ongoing monitoring, training, education and the provision of sufficient equipment to ensure that T’Sou-ke members are adequately equipped to act as first responders in the event of a spill in any conditions that they may face (including in different weather conditions, at different times during the day or night, and to respond to different magnitudes of spills).
293 Exhibit B444-2 - Trans Mountain Revised Final Argument (clean) (December 15, 2015) (A4W6L8), 65.
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