Raincoast & LOS Application for Leave TM Reconsideration Vol 3

Court File No. ______

FEDERAL COURT OF APPEAL

BETWEEN:

RAINCOAST CONSERVATION FOUNDATION and LIVING OCEANS SOCIETY

Applicants

and

ATTORNEY GENERAL OF CANADA and TRANS MOUNTAIN PIPELINE ULC

Respondents

APPLICANTS’ MOTION RECORD Motion for leave to apply for judicial review of Order in Council, P.C. 2019-820 made by the Governor in Council under subsection 54(1) of the National Energy Board Act

VOLUME 3 OF 4

ANY RESPONDENT WISHING TO FILE A MOTION RECORD IN RESPONSE TO THIS MOTION FOR LEAVE MUST DO SO WITHIN TEN (10) DAYS OF BEING SERVED.

REFER TO THE PRACTICE DIRECTION INCLUDED IN THIS MOTION RECORD AT PAGES 75 - 80

Dyna Tuytel & Margot Venton Counsel for the Applicants 800, 744 – 4 Avenue SW Calgary, AB T2P 3T4 Phone: 403 705-0202 Fax: 403-452-6574 TO: FEDERAL COURT OF APPEAL 3rd Floor, 635 – 8 Avenue SW Calgary, AB T2P 3M3

AND TO: ATTORNEY GENERAL OF CANADA c/o Department of Justice Canada Suite 601. 606 – 4 Street SW Calgary, AB T2P 1T1 Tel: 403 292-6813 Fax: 403 299-3507

TRANS MOUNTAIN PIPELINE ULC c/o Osler, Haskin & Harcourt LLP Suite 2500, TransCanada Tower 450 – 1 Street Sw Calgary, AB T2P 5H1 Tel: (403) 260-7003/7038 Fax: (403) 260-7024

NATIONAL ENERGY BOARD 517 – 10 Avenue SW Calgary. AB T2R 0A8 Tel: 403 292-4800 Fax: 403 292-5503 TABLE OF CONTENTS

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Tab Document Page 1 Notice of Motion 1 2 Order in Council, P.C. 2019-820, published in the Canada Gazette, Part I, 9 dated June 22, 2019 3 Practice Direction of Sharlow J.A., Applications for leave to apply for 75 judicial review under subsection 55(1) of the National Energy Board Act of an order of the Governor in Council made under subsection 54(1) of the National Energy Board Act, dated July 23, 2014 Tab Sub- Document Page tab 4 Affidavit of Elizabeth Gabel, affirmed July 4, 2019 81 A Exhibit A – Recovery Strategy for the Northern and Southern 84 Resident Killer Whales (Orcinus Orca) in Canada, dated 2018 B Exhibit B – Southern Resident Killer Whale Imminent Threat 178 Assessment, dated undated C Exhibit C – Written Evidence of Raincoast Conservation 208 Foundation, dated December 5, 2018 D Exhibit D – Written Evidence of Living Oceans Society, dated 256 December 5, 2018 E Exhibit E – National Energy Board reconsideration of aspects 262 of its Recommendation Report as direct by Order in Council P.C. 2018-1177, dated October 12, 2018 F Exhibit F – Letter from the National Energy Board to All 281 Parties re: National Energy Board reconsideration of aspects of its Recommendation Report as directed by Order in Council P.C. 2018-1177 (Reconsideration) MH-052-2018, dated October 29, 2018

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G Exhibit G – National Energy Board reconsideration of aspects 301 of its OH-001-2014 Report as directed by Order in Council P.C. 2018-1177, dated February 2019 Excerpted

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H Exhibit H – Government of Canada Map of Overview of 2019 614 management measures to protect Southern Resident killer whales, dated 2019 I Exhibit I – Government of Canada Backgrounder, Government 616 of Canada outlines its 2019 plan for protecting Southern Resident killer whales, dated May 2019 J Exhibit J – Email to Cabinet enclosing letter by Ecojustice on 619 behalf of Raincoast Conservation Foundation and Living Oceans Society re: reconsideration of the Trans Mountain Expansion Project, dated April 5, 2019 K Exhibit K – Email to Cabinet enclosing letter by Ecojustice on 625 behalf of Raincoast Conservation Foundation and Living Oceans Society re: Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services Global Assessment Report on Biodiversity and Ecosystem Services, dated June 7, 2019 L Exhibit L – National Energy Board Report, Trans Mountain 680 Expansion Project, dated May 2016 Excerpted 5 Draft Proposed Notice of Application for Judicial Review 735

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6 Memorandum of Fact and Law 753 7 Appendix A: Statutes and Regulations A Canadian Environmental Assessment Act, 2012, SC 2012, c 19, 783 s 52 B Federal Courts Act, RSC 1985, c F-7 806 C Federal Courts Rules, SOR/98-106 818 D National Energy Board Act, RSC 1985, c N-7 847 E Species at Risk Act, SC 2002, c 29 868 F Critical Habitats of the Northeast Pacific Northern and 917 Southern Resident Populations of the Killer Whale (Orcinus orca) Order, SOR/2018-278 G Order in Council P.C. 2016-1069 923 H Order in Council P.C. 2018-1177 953 I April 18, 2019 Fishery Notice: FN0377-COMMERCIAL, 963 RECREATIONAL and ABORIGINAL - Salmon - Chinook - 2019 Fraser River Chinook Conservation Measures and Coast- wide Recreational Annual Aggregates J A Species at Risk Act section 11 conservation agreement to 966 support the recovery of the Southern Resident Killer Whale, May 10, 2019 K National Energy Board, Filing Manual, (Calgary: National 993 Energy Board, 2004), Release 2015-01 L Canadian Environmental Assessment Agency, “Operational 1011 Policy Statement: Determining Whether a Designated Project is Likely to Cause Significant Adverse Environmental effects under the Canadian Environmental Assessment Act, 2012” M United Nations Convention on the Conservation of Biological 1026 Diversity, 5 June 1992, 1760 UNTS 69 (entered into force 29 December 1993) 8 Appendix B: Authorities A Canada (Fisheries and Oceans) v David Suzuki Foundation, 1030 2012 FCA 40 B Tsleil-Waututh Nation v Canada (Attorney General), 2018 FCA 1040 153 C CKLN Radio Incorporated v Canada, 2011 FCA 135 1057 D Lukacs v Swoop Inc, 2019 FCA 145 1063 E Martin v Canada (Minister of Human Resources Development), 1073 [1999] FCJ No 1972, 252 NR 141 (FCA) F Taseko Mines Limited v Canada (Environment), 2017 FC 1099 1078 G Pembina Institute for Appropriate Development v Canada 1084 (Attorney General), 2008 FC 302 H Alberta Wilderness Assn v Cardinal River Coals Ltd, [1999] 3 1089 FC 425

TAB H

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This is Exhibit "H" referred to in the Affidavit of Elizabeth Gabel affirmed before me this ).(A auy or July,

A tbr Oaths in and tbr the Province of Alberta

Barry Robinson Barrister & Solicitor 000615 TAB I

000616 This is Exhibit "I" referred to in the Government Gouvernement Affidavit of Elizabeth Gabel of Canada du I*l Ganada affirmed before me this 4h day ot July,201 Barry Robin Backgrounder Barrister for Oaths & Sol for the Province of Alberta Government of Canada outlines its 2019 plan for protecting Southern Resident killer whales

The Government of Canada has formally recognized that the Southern Resident killer whale face imminent threats to their survival and recovery, and that saving these iconic mammals requires comprehensive and immediate action.

The enhanced measures announced on May 10 build upon the earlier initiatives. They have also been informed by the significant work of five technical working groups comprised of First Nations, governments and key scientific and stakeholder advisors, and are designed to directly address each of the key threats to the Southern Resident killer whale population's long-term survival.

They will help to secure the recovery of the Southern Resident killer whales while considering the social and economic interests of First Nations and coastal communities that rely on marine based industries.

Prey To address the limited availability of prey, we are putting in place a combination of fishing restrictions and voluntary measures that will support prey availability for Southern Resident killer whales, including: . Area-based closures in key foraging areas for recreational and commercial salmon fisheries, (rules for other fisheries in these areas will remain unchanged) which will take effect after the Chinook conservation non- retention measures end and will remain in place through the end of October, including: o Strait of Juan de Fuca (Areas 2O-3,20-4): Recreational and commercial salmon closures in effect in

key foraging areas from July 15 or August 1, depending on the sub-area, until October 31 , o Gulf lslands (portions of Areas 18-9, 18-4, 18-5, 18-2): Recreationaland commercialclosures in effect in key foraging areas from August 1 until October 31. . Fisheries and Oceans Canada will trial bubble closures in the vicinity of killer whales in three "Enhanced Management Areas" known to be important for Southern Resident killer whales: the Strait of Juan de Fuca, the Gulf lslands, and the mouth of the Fraser River. All commercial and recreational fish harvesters would be expected to temporarily stop fishing activities when killer whales are within 1 km between May and the end of October. Many of these areas ih which it will apply were subject to area based closures in 2018. . These areas in which these measures are in place will reduce competition for Chinook salmon between fish harvesters and the killer whales, while still providing opportunities for non-salmon recreational and commercial fisheries. . Further, to increase the abundance of Chinook salmon, the primary prey for these whales, DFO has committed to releasing an additional 'l million juvenile Chinook annually from Chilliwack Hatchery for five years to support Southern Resident killer whale recovery. These particular Chinook stocks are important for Southern Resident Killer Whales and are available in the whales' critical habitat year-round.

Acoustic and physical disturbance Measures to address noise and physical disturbance from the Large Commercial Vessel Sector in 2019 will build on successes and lessons learned from the collaborative efforts of the Government of Canada and the Vancouver Port Authority's Enhancing Cetacean Habitat and Observation (ECHO) program to reduce underwater noise from this sector over the last two years. ln addition, new measures for all vessel types will reduce underwater noise in key foraging areas; and require vessels to keep further away from the Southern Resident killer whales.

To further reduce underwater noise from commercial vessels, under the leadership of the ECHO program, this yeartwo important initiatives will be put in place, specifically: . The voluntary slowdown in Haro Strait will be expanded to include Boundary Pass, resulting in lower noise in a wider area. The slowdown will begin June 1, or as soon as whales are spotted in the area.

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o This year, speeds will be reduced for all vessel classes. o Car carriers, cruise ships and container ships will be asked to lower their speed to 14.5 knots o Tankers, bulkers, ferries and government vessels will be asked to transit at 11.5 knots. • Vessels travelling between the shore and shipping lane in the Strait of Juan de Fuca will be asked to travel further south to increase their distance from key foraging areas. The Government of Canada is working on the final details with the Enhancing Cetacean Habitat and Observation (ECHO) program partners, and the U.S. Coast Guard to identify areas in the Strait of Juan de Fuca where travel shifts could be put in place.

Recognizing the important role that smaller vessels play, to address all vessel traffic, including recreational boats and whale watching vessels, the Government of Canada is introducing a suite of measures starting June 1, 2019: • A new mandatory 400-metre approach distance to all killer whales in the Southern Resident killer whale critical habitat will take effect. Exceptions for commercial whale watching companies to allow viewing of transient or Biggs killer whales at the existing 200-metre approach distance may be authorized if they enter an agreement with the Minister of Transport. • The Pacific Whale Watch Association will be entering into such an agreement, whereby their members agree to refrain from offering tours on Southern Resident killer whales, in addition to taking other stewardship actions. The agreement will also commit them to a series of best practices, as described in the Pacific Whale Watch Association’s own guidelines. • When safe to do so, vessel operators are asked to turn off their echo sounders and turn engines to neutral idle if a whale is within 400 metres. • In the three “Enhanced Management Areas” all vessels are asked to reduce their speed to less than 7 knots if they are within 1 km of killer whales.

Sanctuaries • Interim sanctuary zones, off the South-west coast of Pender Island and south-east end of Saturna Island, will also limit fishing activity and vessel traffic from June 1 until October 31, subject to exceptions including emergency vessels and vessels engaged in indigenous food, social and ceremonial fisheries. These areas are important foraging areas and are intended to create spaces of refuge for the whales on an interim basis pending further feasibility assessment work on a longer term sanctuary approach. The interim sanctuary zone at Swiftsure will expand the scope of an existing and longstanding fishery closure to apply to all commercial and recreational fisheries. Vessel restrictions will be put in place using the Interim Order power of the Minister of Transport under the Canada Shipping Act.

Contaminants Recognizing the long term nature of contaminants in the environment, new emerging contaminants of concern, and food web interactions affecting the Southern Resident killer whale and their prey, work is under way to: • Amend the Prohibition of Certain Toxic Substances Regulations, 2012 to further restrict five chemicals (flame retardants, oil and water repellants) and prohibit two new flame retardants. • Increase monitoring, surveillance (i.e. freshwater, air, landfill leachate and disposal at sea) and research to identify sources of contaminants and how they are entering the aquatic environment.

May, 2019

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3 TAB J

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Fromr Betty Gabel To: "justin.trudeau(ooarl.oc.ca"; "raloh.goodale(Oparl.oc.ca"; "[email protected]"; "[email protected]"; "dominit.leblanc(Oparl.oc.ca"; "[email protected]"; "[email protected]"; "[email protected]"; "[email protected]"; "[email protected]"; "[email protected]"; "[email protected]"; "[email protected]"; "Diane.Lebouthillier(ooail.oc.ca"; "Catherine.McKenna(ooarl.oc.ca"; "[email protected]"; "[email protected]"; "[email protected]"; "[email protected]"; "[email protected]"; "[email protected]"; "[email protected]"; "[email protected]"; "[email protected]"; "[email protected]"; "[email protected]"; "[email protected]"; "[email protected]"; "[email protected]"; "[email protected]"; "Filomena,[email protected]"; "[email protected]"; "[email protected]"; "[email protected]"; "iovce. [email protected]"; Dvna Tuytel Cc: "[email protected]"; "[email protected]"; "[email protected]"; "Dyna Tuvtel"; "Margot Venton" Subject: Trans Mountain Expansion Project Date: Friday, April 5,2019 10:02:00 AM Attachments 2019 04 05 - Letter to GIC re Trans Mountain - Final.pdf Wntten Argument of Living Oceans and Raincoast - Trans Mountain Reconsideration.pdf

Good Morning:

Please find attached coffespondence and attachment sent on behalf of Dyna Tuytel and Margot Venton.

Kindly direct all replies to Ms. Tuytel and Ms. Venton. This is Exhibit "J" referred to in the Affidavit of Elizabeth Gabel Thank you, affirmed before methis 4b Betty Gabel duy ,20 Legal Services Ledd/Office Manager Ecojustice I A for Oaths 800,744-4th Avenue SW, Calgary,AB T2P 3T4 in and for the Province of Alberta T: 403-705-0202 | l-800-926-7744 ext. 310 F:403-452-6574 Barry Robinson Barrisier & Solicitor Ecojustice is Canoda's largest environmentol low chari4t. Help us build the case for a better eorth.

This message may contain confidential and/or privileged information. Ifyou are not the addressee or authorized to receive this for the addressee, you must not use, copy, disclose or take any action based on this message or any information herein. Ifyou have received this message in error, please advise the sender immediately by reply e-mail and delete this message. Thank you. 000620

Dyna Tuytel & Margot Venton 800, 744 – 4 Avenue SW Calgary, AB T2P 3T4 Telephone: (403) 705-0202 Fax: (403) 452-6574 E-Mail: [email protected] [email protected] File No: 739 April 5, 2019

Sent via E-mail

The Governor in Council House of Commons Ottawa, Ontario K1A 0A6

Dear Honourable Members: Re: Trans Mountain Expansion Project We are legal counsel for Raincoast Conservation Foundation (“Raincoast”) and Living Oceans Society (“Living Oceans”), who were intervenors in the National Energy Board (the “NEB” or “Board”) reconsideration of the Trans Mountain Expansion Project (the “Project”). A. Overview On February 22, 2019, the Board published its reconsideration report concerning the Trans Mountain Expansion Project (the “Reconsideration Report”). The Reconsideration Report followed a 155-day process in which the Board reconsidered the matter of Project-related shipping (the “Reconsideration”). In the Reconsideration Report, the Board re-evaluated the conclusions and recommendations of its 2016 report on the Project with respect to the adverse effects of Project-related shipping and provided a revised recommendation to the Governor in Council. We understand that the Governor in Council will make its decision to approve or reject the Project pursuant to subsection 54(1) of the National Energy Board Act (the “NEB Act”) by May 22, 2019 unless it decides that an extension is necessary. We write to provide you, as members of Cabinet, with our clients’ concerns about the shortcomings of the Reconsideration and Reconsideration Report and the implications of those inadequacies for your forthcoming decision. Raincoast and Living Oceans’ position is that the Governor in Council cannot lawfully approve the Project, and must reject it. For the reasons summarized below, which were set out in detail in Raincoast and Living Oceans’ written argument to the NEB during the Reconsideration1, approval would be contrary to the purpose and provisions of the Species at Risk Act (“SARA”). The Governor in Council cannot approve a project that will have significant adverse effects on an endangered species without ensuring mitigation of those effects as required by SARA. As the NEB’s findings demonstrate, to approve the Project is to approve significant adverse

1 Appended to this letter and available online at https://apps.neb-one.gc.ca/REGDOCS/Item/View/3747535.

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environmental effects on the endangered Southern Residents, with no mitigation for those effects, thereby jeopardizing the species’ survival and recovery. Such impacts cannot be justified under the Canadian Environmental Assessment Act, 2012 (“CEAA 2012”). Further, as is clear from the NEB’s findings, approving the Project will result in significant adverse impacts on marine greenhouse gas emissions at a time when there is global scientific consensus that we must drastically reduce such emissions. Approving the Project would further jeopardize Canada’s ability fulfil its international commitment to do our part to combat global climate change. B. The Governor in Council cannot lawfully approve the Project Raincoast and Living Oceans’ position is that the Governor in Council cannot lawfully approve the Project due to its effects on the Southern Residents and marine greenhouse gas emissions. Their position, explained below, is that: 1. the Governor in Council cannot lawfully authorize a project, such as this Project, that will have significant adverse environmental effects on a federally listed endangered species without ensuring mitigation of those effects as required by SARA; and 2. the Governor in Council cannot lawfully find that the Project’s unmitigated significant adverse effects are justified pursuant to CEAA 2012, given that they will jeopardize the survival and recovery of the Southern Residents, contrary to SARA, and given that they undermine Canada’s international climate commitments. Project-related shipping will have adverse effects, including significant adverse environmental effects The NEB made clear factual findings that Project-related shipping will have significant adverse effects on the Southern Residents and that there is a lack of credible mitigation available to address those threats. These undisputed facts are as follows: • Project-related shipping would add to underwater noise and the risk of vessel strikes along the shipping route, which transects Southern Resident critical habitat.2 • Project-related shipping would result in sensory disturbance of marine mammals.3 • Project-related shipping would contribute to cumulative effects that are jeopardizing the recovery of the Southern Residents.4 • Project-related shipping is likely to result in significant adverse effects on the Southern Residents.5 • Vessel noise is a threat to the acoustic integrity of Southern Resident critical habitat.6 • Physical and acoustic disturbance from vessels may be key factors causing the decline or preventing the recovery of the Southern Residents.7

2 National Energy Board, National Energy Board Report: Application for the Trans Mountain Expansion Project, National Energy Board reconsideration of aspects of its OH-001-2014 Report as directed by Order in Council P.C. 2018-1177, MH-052-2018 (February 2019) [Report] at 420. 3 Report at 418. 4 Report at 419. 5 Report at 419. 6 Report at 419. 7 Report at 419.

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• The mortality of a single Southern Resident due to collision with a vessel would have consequences at the population level.8 • Mortality of individuals of SARA-listed species generally could have population level impacts and could jeopardize recovery.9 • There are only 74 Southern Residents.10 • Threats to the Southern Residents include physical and acoustic disturbance, reduced prey availability, contamination, and vessel strikes.11 • The two responsible ministers – the Minsters of Environment and Fisheries and Oceans – decided in May 2018 that the Southern Residents face imminent threats to survival and recovery.12 • The Southern Residents have crossed a threshold where any additional adverse effects are significant; they cannot withstand additional adverse effects.13 • The impact of Southern Residents being exposed to an oil spill is potentially catastrophic.14 • The Marine Mammal Protection Program (Condition 132) “offers no assurance that effective mitigation would be developed and implemented”.15 • Even based on existing initiatives that the NEB claims are relevant to the Project, and commitments Trans Mountain has made, “only an initial and partial set of mitigation measures are currently in place or being tested, and in a number of cases the effectiveness of a measure has not yet been demonstrated.”16 The Board further found that Project-related shipping will have significant adverse environmental effects due to greenhouse gas emissions from vessels. The Governor in Council cannot ensure measures to avoid or lessen effects on the Southern Residents and other SARA-listed marine species as required by SARA The purpose of SARA is to prevent extinction and provide for recovery of species at risk.17 Subsection 79(2) of SARA requires the person conducting an environmental assessment (in this case, the Board) to “identify the adverse effects of the project on the listed wildlife species and its critical habitat, and, if the project is carried out, […] ensure that measures are taken to avoid or lessen those effects and to monitor them”, which measures “must be taken in a way that is consistent with any applicable recovery strategy and action plans”.18 The Federal Court of Appeal has said that if the Board is not in a position to directly ensure those measures, it must provide an exposition of measures so that the federal government can ensure them.19

8 Report at 419. 9 Report at 490. 10 Report at 419. 11 Report at 419. 12 Repot at 419. 13 Report at 419. 14 Report at 490. 15 Report at 423. 16 Report at 423. It is Raincoast and Living Oceans’ position that, in addition to these shortcomings, the “measures” in question do not even constitute mitigation.) 17 SARA s 6. 18 Species at Risk Act, SC 2002, c 29 [SARA], s. 79(2). 19 Tsleil-Waututh Nation v Canada, 2018 FCA 153 at para 456.

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There is clear evidence, as described above, that this Project would have adverse effects on marine species at risk and their critical habitat, including adverse effects on the Southern Residents and their critical habitat that all parties acknowledge are significant. There is also evidence of effects on other SARA-listed marine species. Raincoast and Living Oceans note that s. 79(2) applies to all adverse effects on SARA-listed species and their critical habitat, not only ones deemed significant, and as such, measures are required for all affected species, not only the Southern Residents.20 However, as noted above, there is a lack of mitigation for these effects. The Governor in Council allowed the Board only 155 days to conduct the Reconsideration and prepare the Reconsideration Report.21 It is perhaps due to inadequate time that the Board’s analysis of effects on species other than Southern Residents was superficial and that it failed to adequately examine measures for the Southern Residents and other SARA-listed species. For example, Fisheries and Oceans Canada informed the Board that it would not be able to compile data on vessel strikes until spring of 2019, and no analysis of the effectiveness of 2018’s voluntary vessel slowdown trial was available during the Reconsideration. The Governor in Council could have taken such factors into account when setting a timeline for the Reconsideration, particularly given that the Governor in Council has adopted a longer timeline to complete Indigenous consultation. The Governor in Council cannot approve the Project, because approval without identifying impacts on all SARA-listed species or ensuring mitigation measures would be contrary to s. 79(2). There are important practical reasons for the legal requirement to both “identify” and “ensure” actual, enforceable mitigation measures before a project is approved, that go to the heart of SARA’s primary purpose – to avoid extinction and promote recovery. The danger of postponing the identification of mitigation is illustrated in the story of the SARA-listed Yellow Rail – the species at issue in the case of Pembina Institute for Appropriate Development v Canada (Attorney General), 2008 FC 302, cited by the Board in support of its position that there is “flexibility in the timing of measures under s. 79(2)”.22 In that case, as described by the Board, the review panel recommended a regional review of cumulative impacts by Alberta Environment and Environment Canada, over the next two years, that should determine mitigation. The Federal Court found that these studies did not constitute mitigation but were a reasonable approach to manage uncertainty. However, after the decision, the regional study did not take place, mitigation options were not identified, and mitigation was never implemented. This was the result of the lack of any concrete measures or binding conditions to develop measures at the time of approval of that project. Promises of future studies with no concrete requirements for mitigation will result in no mitigation. Furthermore, the Board did not take into account, when relying on this case, that Yellow Rail is a species of special concern, as opposed to an endangered species facing imminent threats to survival and recovery, as is the case for the Southern Residents. An approach without measures cannot be a reasonable approach to manage uncertainty in the case of the Southern Residents.

20 The Board found that North Pacific humpback whales will experience adverse effects “of moderate magnitude”, and found that other whale species will experience effects that it deemed “not likely to be significant (Report at 420- 421). Measures are also required to address those effects. 21 Order in Council P.C. 2018-1177. 22 Report at 376.

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The Governor in Council cannot justify the significant adverse environmental effects on the Southern Residents or the significant adverse environmental effects of marine greenhouse gas emissions under CEAA 2012 Pursuant to CEAA 2012, the Reconsideration report included the Board’s recommendation that the Governor in Council decide that the Project, taking into account mitigation measures, is likely to cause significant adverse environmental effects, due to its effects on the Southern Residents and marine greenhouse gas emissions, and its recommendation that these effects are justified in the circumstances.23 The Governor in Council cannot justify significant adverse effects on the Southern Residents and their critical habitat that will jeopardize the species’ survival and recovery. This would be contrary to the purpose of SARA, which is to prevent extinction and promote recovery, as well as SARA’s provisions prohibiting harm to individuals of listed species and destruction of species’ critical habitat.24 The Governor in Council also cannot justify the significant adverse environmental effects of greenhouse gas emissions from Project-related marine shipping in the circumstances. These circumstances include: Canada’s international commitments, including its Paris Agreement commitment to keep the increase in global temperatures well below 2°C above pre-industrial levels25; the Intergovernmental Panel on Climate Change’s recent findings concerning the urgent need to severely curtail greenhouse gas emissions across all sectors to avoid warming above 1.5℃26; and principles such as sustainable development and intergenerational equity27 which are at the core of Canada’s commitment to the United Nations Sustainable Development Goals. C. Conclusion For the above reasons, it is Raincoast and Living Oceans’ position that the Governor in Council must reject the Project.

Sincerely,

______Dyna Tuytel Margot Venton Barrister & Solicitor Barrister & Solicitor

Encl. c. Karen Wristen, Living Oceans Society Paul Paquet and Misty MacDuffee, Raincoast Conservation Foundation

23 Canadian Environmental Assessment Act, 2012, SC 2012, c 19, s 52 [CEAA 2012], ss. 19(a), (b), (d), 29(1)(a). 24 SARA ss. 6, 32, 58(1). 25 Government of Canada, “The Paris Agreement”, online: https://www.canada.ca/en/environment-climate- change/services/climate-change/paris-agreement.html. 26 Intergovernmental Panel on Climate Change, Global Warming of 1.5°C: Summary for Policymakers (October 2018, revised January 2019), online: https://www.ipcc.ch/site/assets/uploads/sites/2/2018/07/SR15_SPM_version_stand_alone_LR.pdf. 27 As described in Living Oceans and Raincoast’s written argument to the NEB, appended to this letter and available online at https://apps.neb-one.gc.ca/REGDOCS/Item/View/3747535, at paras 63-69.

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TAB K

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Good Moming:

Please find attached correspondence sent on behalf of Dyna Tuytel and Margot Venton. Kindly direct all replies to Ms. Tuytel and Ms. Venton. This is Exhibit "K" referred to in the Thank you, Affidavit of Elizabeth Gabel affirmed before me this Ll/' duy of Betty Gabel July Legal Services Lead"/Office Manager I Ecojustice 800,744 - 4th Avenue SW, Calgary, ABT2P 3T4 A for C)aths T: 403-705-0202 | l-800-926-7744 ext.3l0 in and for the Province of Alberta F:403-452-6574 Barry Robinson eorth.

This message may contain confidential and/or privileged information. If you are not the addressee or authorized to receive this for the addressee, you must not use, copy, disclose or take any action based on this message or any information herein. If you have received this message in error, please advise the sender immediately by reply e-mail and delete this message. Thank you. 000626

Dyna Tuytel & Margot Venton 800, 744 – 4 Avenue SW Calgary, AB T2P 3T4 Telephone: (403) 705-0202 Fax: (403) 452-6574 E-Mail: [email protected] [email protected] File No: 739 June 7, 2019

Sent via E-mail

The Governor in Council House of Commons Ottawa, Ontario K1A 0A6

Dear Honourable Members: Re: Trans Mountain Expansion Project We are legal counsel for Raincoast Conservation Foundation (“Raincoast”) and Living Oceans Society (“Living Oceans”), who were intervenors in the National Energy Board (the “NEB” or “Board”) reconsideration of the Trans Mountain Expansion Project (the “Project”). We understand that the Governor in Council will make its decision to approve or reject the Project pursuant to subsection 54(1) of the National Energy Board Act by June 18, 2019 unless it decides that an additional extension is necessary. Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services Global Assessment Report on Biodiversity and Ecosystem Services Further to our April 5, 2019 letter to you concerning the Project, we are writing to ensure you are aware of the May 6, 2019 Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services Global Assessment Report on Biodiversity and Ecosystem Services (the “IPBES Report”), which is relevant to your upcoming decision about whether to approve the Project. We have appended the IPBES Report (summary for policymakers) and associated media release to this letter, and we summarize some of the key findings below. The IPBES Report analyses the relationship between economic development pathways and their impacts on nature. It identifies an ongoing rapid decline in biodiversity and ecosystem functions, and indicates the need for “transformative changes” to economic, social, political and technological factors in order for nature to be conserved; otherwise, negative trends in nature and ecosystem services1 will continue. Three of the top five drivers of changes to nature identified in the IPBES Report are relevant to the Project: changes in land and sea use, climate change, and pollution. The IPBES Report states that:

1 Ecosystem services are the many and varied benefits that humans freely gain from the natural environment and from properly-functioning ecosystems. Such ecosystems include, for example, agro-ecosystems, forest ecosystems, grassland ecosystems and aquatic ecosystems. 000627

Economic incentives generally have favoured expanding economic activity, and often environmental harm, over conservation or restoration. Incorporating the consideration of the multiple values of ecosystem functions and of nature’s contribution to people into economic incentives has, in the economy, been shown to permit better ecological, economic and social outcomes.2 It further states that overcoming opposition from vested interests and bringing about transformative change to current structures that drive biodiversity loss would further the public good. The Governor in Council cannot justify the significant adverse environmental effects on the Southern Residents or the significant adverse environmental effects of marine greenhouse gas emissions under CEAA 2012 Raincoast and Living Oceans informed you on April 5 of their opinion that the Governor in Council cannot lawfully approve the Project, and must reject it. More specifically, they informed you of their position that: • the Governor in Council cannot justify, under the Canadian Environmental Assessment Act, 20123, significant adverse effects on the Southern Resident killer whales and their critical habitat that will jeopardize the species’ survival and recovery, as this would be contrary to the purpose and provisions of the Species at Risk Act4; and • the Governor in Council cannot justify the significant adverse environmental effects of greenhouse gas emissions from Project-related marine shipping in the circumstances (which include Canada’s international commitments, including its Paris Agreement commitment to keep the increase in global temperatures well below 2°C above pre- industrial levels5; the Intergovernmental Panel on Climate Change’s recent findings concerning the urgent need to severely curtail greenhouse gas emissions across all sectors to avoid warming above 1.5℃6; and principles such as sustainable development and intergenerational equity7 which are at the core of Canada’s commitment to the United Nations Sustainable Development Goals). Raincoast and Living Oceans further take the position that the recent IPBES Report should inform the Governor in Council’s decision. The decision as to whether the Project’s significant adverse effects on the endangered Southern Resident killer whales and the significant adverse effects of the Project’s greenhouse gas emissions are justified should take into account the unprecedented rapid decline in biodiversity described in the IPBES Report, and the IPBES

2 Summary report at page 5. 3 Canadian Environmental Assessment Act, 2012, SC 2012, c 19, s 52. 4 SARA ss. 6, 32, 58(1). 5 Government of Canada, “The Paris Agreement”, online: https://www.canada.ca/en/environment-climate- change/services/climate-change/paris-agreement.html. 6 Intergovernmental Panel on Climate Change, Global Warming of 1.5°C: Summary for Policymakers (October 2018, revised January 2019), online: https://www.ipcc.ch/site/assets/uploads/sites/2/2018/07/SR15_SPM_version_stand_alone_LR.pdf. 7 As described in Living Oceans and Raincoast’s written argument to the NEB, available online at https://apps.neb- one.gc.ca/REGDOCS/Item/View/3747535, at paras 63-69.

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Report’s call for transformative change, which is in the public interest. The Project’s effects cannot be justified, and the Project is incompatible with the public interest.

Sincerely,

______Dyna Tuytel Margot Venton Barrister & Solicitor Barrister & Solicitor

Encl. c. Karen Wristen, Living Oceans Society Paul Paquet and Misty MacDuffee, Raincoast Conservation Foundation

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Summary for policymakers of the global assessment report on biodiversity and ecosystem services of the Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services

- ADVANCE UNEDITED VERSION –

6 May 2019

Authors1 Sandra Díaz (Co-Chair, Argentina), Josef Settele (Co-Chair, Germany), Eduardo Brondízio (Co-Chair, Brazil/United States of America) Hien T. Ngo (IPBES), Maximilien Guèze (IPBES); John Agard (Trinidad and Tobago), Almut Arneth (Germany), Patricia Balvanera (Mexico), Kate Brauman (United States of America), Stuart Butchart (United Kingdom of Great Britain and Northern Ireland/BirdLife International), Kai Chan (Canada), Lucas Garibaldi (Argentina), Kazuhito Ichii (Japan), Jianguo Liu (United States of America), Suneetha Mazhenchery Subramanian (India/United Nations University), Guy Midgley (South Africa), Patricia Miloslavich (Bolivarian Republic of Venezuela/Australia), Zsolt Molnár (Hungary), David Obura (Kenya), Alexander Pfaff (United States of America), Stephen Polasky (United States of America), Andy Purvis (United Kingdom of Great Britain and Northern Ireland), Jona Razzaque (Bangladesh/United Kingdom of Great Britain and Northern Ireland), Belinda Reyers (South Africa), Rinku Roy Chowdhury (United States of America), Yunne-Jai Shin (France), Ingrid Visseren- Hamakers (Netherlands/United States of America), Katherine Willis (United Kingdom of Great Britain and Northern Ireland), Cynthia Zayas (Philippines)

Members of the management committee who provided guidance for the production of this assessment Robert Watson, Ivar Baste, Anne Larigauderie, Paul Leadley, Unai Pascual, Brigitte Baptiste, Sebsebe Demissew, Luthando Dziba, Günay Erpul, Asghar Fazel, Markus Fischer, Ana María Hernández, Madhav Karki, Vinod Mathur, Tamar Pataridze, Isabel Sousa Pinto, Marie Stenseke, Katalin Török, Bibiana Vilá

Overall review editors Manuela Carneiro da Cunha, Georgina Mace, Harold Mooney

Disclaimer:

The designations employed and the presentation of material on the maps used in the present report do not imply the expression of any opinion whatsoever on the part of the Intergovernmental Science- Policy Platform on Biodiversity and Ecosystem Services concerning the legal status of any country, territory, city or area or of its authorities, or concerning the delimitation of its frontiers or boundaries. These maps have been prepared for the sole purpose of facilitating the assessment of the broad biogeographical areas represented therein.

1 Authors are listed with, in parentheses, their country or countries of citizenship, separated by a comma when they have more than one; and, following a slash, their country of affiliation, if different from that or those of their citizenship, or their organization if they belong to an international organization. The countries and organizations having nominated the experts are listed on the IPBES website.

ADVANCE UNEDITED 000630 Key messages A. Nature and its vital contributions to people, which together embody biodiversity and ecosystem functions and services, are deteriorating worldwide. Nature embodies different concepts for different people, including biodiversity, ecosystems, Mother Earth, systems of life and other analogous concepts. Nature’s contributions to people embody different concepts such as ecosystem goods and services, and nature’s gifts. Both nature and nature’s contributions to people are vital for human existence and good quality of life (human well-being, living in harmony with nature, living well in balance and harmony with Mother Earth, and other analogous concepts).While more food, energy and materials than ever before are now being supplied to people in most places, this is increasingly at the expense of nature’s ability to provide such contributions in the future and frequently undermines nature’s many other contributions, which range from water quality regulation to sense of place. The biosphere, upon which humanity as a whole depends, is being altered to an unparalleled degree across all spatial scales. Biodiversity – the diversity within species, between species and of ecosystems – is declining faster than at any time in human history. A1 Nature is essential for human existence and good quality of life. Most of nature’s contributions to people are not fully replaceable, and some are irreplaceable. Nature plays a critical role in providing food and feed, energy, medicines and genetic resources and a variety of materials fundamental for people’s physical well-being and for maintaining culture. For example, more than 2 billion people rely on wood fuel to meet their primary energy needs, an estimated 4 billion people rely primarily on natural medicines for their health care and some 70 per cent of drugs used for cancer are natural or are synthetic products inspired by nature. Nature, through its ecological and evolutionary processes, sustains the quality of the air, fresh water and soils on which humanity depends, distributes fresh water, regulates the climate, provides pollination and pest control and reduces the impact of natural hazards. For example, more than 75 per cent of global food crop types, including fruits and vegetables and some of the most important cash crops such as coffee, cocoa and almonds, rely on animal pollination. Marine and terrestrial ecosystems are the sole sinks for anthropogenic carbon emissions, with a gross sequestration of 5.6 gigatons of carbon per year (the equivalent of some 60 per cent of global anthropogenic emissions). Nature underpins all dimensions of human health and contributes to non-material aspects of quality of life – inspiration and learning, physical and psychological experiences, and supporting identities – that are central to quality of life and cultural integrity, even if their aggregated value is difficult to quantify. Most of nature’s contributions are co-produced with people, but while anthropogenic assets – knowledge and institutions, technology infrastructure and financial capital – can enhance or partially replace some of those contributions, some are irreplaceable. The diversity of nature maintains humanity’s ability to choose alternatives in the face of an uncertain future. A2 Nature’s contributions to people are often distributed unequally across space and time and among different segments of society. There are often trade-offs in the production and use of nature’s contributions. Benefits and burdens associated with co-production and use of nature’s contributions are distributed and experienced differently among social groups, countries and regions. Giving priority to one of nature’s contributions to people, such as food production, can result in ecological changes that reduce other contributions. Some of these changes may benefit some people at the expense of others, particularly the most vulnerable, as may changes in technological and institutional arrangements. For example, although food production today is sufficient to satisfy global needs, approximately 11 per cent of the world’s population is undernourished, and diet-related disease drives 20 per cent of premature mortality, related both to undernourishment and to obesity. The great expansion in the production of food, feed, fibre and bioenergy has occurred at the cost of many other contributions of nature to quality of life, including regulation of air and water quality, climate regulation and habitat provision. Synergies also exist, such as sustainable agricultural practices that enhance soil quality, thereby improving productivity and other ecosystem functions and services such as carbon sequestration and water quality regulation. A3 Since 1970, trends in agricultural production, fish harvest, bioenergy production and harvest of materials have increased, but 14 of the 18 categories of contributions of nature that were assessed, mostly regulating and non-material contributions, have declined. The value of agricultural crop production ($2.6 trillion in 2016) has increased approximately threefold since 1970, and raw timber harvest has increased by 45 per cent, reaching some 4 billion cubic metres in 2017, with the forestry industry providing about 13.2 million jobs. However, indicators of regulating contributions, such as soil organic carbon and pollinator diversity, have declined, indicating that gains in material contributions are often not sustainable. Currently, land degradation has reduced productivity in 23 per cent of the global terrestrial area, and between $235 billion and $577 billion in

2 ADVANCE000631 UNEDITED annual global crop output is at risk as a result of pollinator loss. Moreover, loss of coastal habitats and coral reefs reduces coastal protection, which increases the risk from floods and hurricanes to life and property for the 100 million–300 million people living within coastal 100-year flood zones. A4 Nature across most of the globe has now been significantly altered by multiple human drivers, with the great majority of indicators of ecosystems and biodiversity showing rapid decline. Seventy-five per cent of the land surface is significantly altered, 66 per cent of the ocean area is experiencing increasing cumulative impacts, and over 85 per cent of wetlands (area) has been lost. While the rate of forest loss has slowed globally since 2000, this is distributed unequally. Across much of the highly biodiverse tropics, 32 million hectares of primary or recovering forest were lost between 2010 and 2015. The extent of tropical and subtropical forests is increasing within some countries, and the global extent of temperate and boreal forests is increasing. A range of actions – from restoration of natural forest to planting of monocultures – contribute to these increases but have very different consequences for biodiversity and its contributions to people. Approximately half the live coral cover on coral reefs has been lost since the 1870s, with accelerating losses in recent decades due to climate change exacerbating other drivers. The average abundance of native species in most major terrestrial biomes has fallen by at least 20 per cent, potentially affecting ecosystem processes and hence nature’s contributions to people; this decline has mostly taken place since 1900 and may be accelerating. In areas of high endemism, native biodiversity has often been severely impacted by invasive alien species. Population sizes of wild vertebrate species have tended to decline over the last 50 years on land, in freshwater and in the sea. Global trends in insect populations are not known but rapid declines have been well documented in some places. {BG 4, 5} A5 Human actions threaten more species with global extinction now than ever before. An average of around 25 per cent of species in assessed animal and plant groups are threatened (figure SPM.3), suggesting that around 1 million species already face extinction, many within decades, unless action is taken to reduce the intensity of drivers of biodiversity loss. Without such action there will be a further acceleration in the global rate of species extinction, which is already at least tens to hundreds of times higher than it has averaged over the past 10 million years. {Fig SPM4, BG 6} A6 Globally, local varieties and breeds of domesticated plants and animals are disappearing. This loss of diversity, including genetic diversity, poses a serious risk to global food security by undermining the resilience of many agricultural systems to threats such as pests, pathogens and climate change. Fewer and fewer varieties and breeds of plants and animals are being cultivated, raised, traded and maintained around the world, despite many local efforts, which include those by indigenous peoples and local communities. By 2016, 559 of the 6,190 domesticated breeds of mammals used for food and agriculture (over 9 per cent) had become extinct and at least 1,000 more are threatened. In addition, many crop wild relatives that are important for long-term food security lack effective protection, and the conservation status of wild relatives of domesticated mammals and birds is worsening. Reductions in the diversity of cultivated crops, crop wild relatives and domesticated breeds mean that agroecosystems are less resilient against future climate change, pests and pathogens. A7 Biological communities are becoming more similar to each other in both managed and unmanaged systems within and across regions. This human-caused process leads to losses of local biodiversity, including endemic species, ecosystem functions and nature’s contributions to people. A8 Human-induced changes are creating conditions for fast biological evolution - so rapid that its effects can be seen in only a few years or even more quickly. The consequences can be positive or negative for biodiversity and ecosystems, but can create uncertainty about the sustainability of species, ecosystem functions and the delivery of nature’s contributions to people. Understanding and monitoring these biological evolutionary changes are as important for informed policy decisions as in cases of ecological change. Sustainable management strategies then can be designed to influence evolutionary trajectories so as to protect vulnerable species and reduce the impact of unwanted species (such as weeds, pests or pathogens). The widespread declines in geographic distribution and population sizes of many species make clear that, although evolutionary adaptation to human-caused drivers can be rapid, it has often not been sufficient to mitigate them fully. B. Direct and indirect drivers of change have accelerated during the past 50 years The rate of global change in nature during the past 50 years is unprecedented in human history. The direct drivers of change in nature with the largest global impact have been (starting with those with most impact): changes in land and sea use; direct exploitation of organisms; climate change; pollution; and invasion of alien species. Those five direct drivers result from an array of underlying causes – the indirect drivers of change – which are in turn underpinned by societal values and behaviours that include production and consumption patterns, human population

3 ADVANCE UNEDITED 000632 dynamics and trends, trade, technological innovations and local through global governance. The rate of change in the direct and indirect drivers differs among regions and countries. B1 For terrestrial and freshwater ecosystems, land-use change has had the largest relative negative impact on nature since 1970, followed by the direct exploitation, in particular overexploitation, of animals, plants and other organisms mainly via harvesting, logging, hunting and fishing. In marine ecosystems, direct exploitation of organisms (mainly fishing) has had the largest relative impact, followed by land/sea-use change. Agricultural expansion is the most widespread form of land-use change, with over one third of the terrestrial land surface being used for cropping or animal husbandry. This expansion, alongside a doubling of urban area since 1992 and an unprecedented expansion of infrastructure linked to growing population and consumption, has come mostly at the expense of forests (largely old-growth tropical forests), wetlands and grasslands. In freshwater ecosystems, a series of combined threats that include land-use change, including water extraction, exploitation, pollution, climate change and invasive species, are prevalent. Human activities have had a large and widespread impact on the world’s oceans. These include direct exploitation, in particular overexploitation, of fish, shellfish and other organisms, land- and sea-based pollution, including from river networks, and land/sea-use change, including coastal development for infrastructure and aquaculture. B2 Climate change is a direct driver that is increasingly exacerbating the impact of other drivers on nature and human well-being. Humans are estimated to have caused an observed warming of approximately 1.0°C by 2017 relative to pre-industrial levels, with average temperatures over the past 30 years rising by 0.2°C per decade. The frequency and intensity of extreme weather events, and the fires, floods and droughts that they can bring, have increased in the past 50 years, while the global average sea level has risen by 16 to 21 cm since 1900, and at a rate of more than 3 mm per year over the past two decades. These changes have contributed to widespread impacts in many aspects of biodiversity, including species distributions, phenology, population dynamics, community structure and ecosystem function. According to observational evidence, the effects are accelerating in marine, terrestrial and freshwater ecosystems and are already impacting agriculture, aquaculture, fisheries and nature’s contributions to people. Compounding effects of drivers such as climate change, land/sea-use change, overexploitation of resources, pollution and invasive alien species are likely to exacerbate negative impacts on nature, as has been seen in different ecosystems such as coral reefs, the arctic systems and savannas. B3 Many types of pollution, as well as invasive alien species, are increasing, with negative impacts for nature. Although global trends are mixed, air, water and soil pollution have continued to increase in some areas. Marine plastic pollution in particular has increased tenfold since 1980, affecting at least 267 species, including 86 per cent of marine turtles, 44 per cent of seabirds and 43 per cent of marine mammals. This can affect humans through food chains. Greenhouse gas emissions, untreated urban and rural waste, pollutants from industrial, mining and agricultural activities, oil spills and toxic dumping have had strong negative effects on soil, freshwater and marine water quality and the global atmosphere. Cumulative records of alien species have increased by 40 per cent since 1980, associated with increased trade and human population dynamics and trends. Nearly one fifth of the Earth’s surface is at risk of plant and animal invasions, impacting native species, ecosystem functions and nature’s contributions to people, as well as economies and human health. The rate of introduction of new invasive alien species seems higher than ever before and with no signs of slowing. B4 In the past 50 years, the human population has doubled, the global economy has grown nearly 4-fold and global trade has grown 10-fold, together driving up the demands for energy and materials. A variety of economic, political and social factors, including global trade and the spatial decoupling of production from consumption, have shifted the economic and environmental gains and losses of production and consumption, contributing to new economic opportunities, but also impacts on nature and its contributions to people. Levels of consumption of material goods (food, feed, timber and fibre) vary greatly, and unequal access to material goods can be associated with inequity and may lead to social conflict. Economic exchange contributes to aggregate economic development, yet often is negotiated between actors and institutions of unequal power, which influences the distribution of benefits and long-term impacts. Countries at different levels of development have experienced different levels of deterioration of nature for any given gain in economic growth. Exclusion, scarcities and/or unequal distributions of nature’s contributions to people may, and in a complex interaction with other factors, fuel social instability and conflict. Armed conflicts have an impact on ecosystems beyond destabilizing effects on societies and a range of indirect impacts, including displacement of people and activities.

4 ADVANCE000633 UNEDITED B5 Economic incentives generally have favoured expanding economic activity, and often environmental harm, over conservation or restoration. Incorporating the consideration of the multiple values of ecosystem functions and of nature’s contribution to people into economic incentives has, in the economy, been shown to permit better ecological, economic and social outcomes. Local, national, regional and global governance have improved outcomes in this way by supporting policies, innovation and the elimination of environmentally harmful subsidies, introducing incentives in line with the value of nature’s contribution to people, increasing sustainable land/sea-use management and enforcing regulations, among other measures. Harmful economic incentives and policies associated with unsustainable practices of fisheries, aquaculture, agriculture (including fertilizer and pesticide use), livestock, forestry, mining and energy (including fossil fuels and biofuels) are often associated with land/sea-use change and overexploitation of natural resources, as well as inefficient production and waste management. Vested interests may oppose the removal of subsidies or the introduction of other policies. Yet, policy reforms to deal with such causes of environmental harm offer the potential to both conserve nature and provide economic benefits, including when policies are based upon more and better understanding of the multiple values of nature’s contributions. B6 Nature managed by indigenous peoples and local communities is under increasing pressure. Nature is generally declining less rapidly in indigenous peoples’ land than in other lands, but is nevertheless declining, as is the knowledge of how to manage it. At least a quarter of the global land area is traditionally owned, managed,2 used or occupied by indigenous peoples. These areas include approximately 35 per cent of the area that is formally protected, and approximately 35 per cent of all remaining terrestrial areas with very low human intervention. In addition, a diverse array of local communities, including farmers, fishers, herders, hunters, ranchers and forest-users, manage significant areas under various property and access regimes. Among the local indicators developed and used by indigenous peoples and local communities, 72 per cent show negative trends in nature that underpin local livelihoods and well-being. The areas managed (under various types of tenure and access regimes) by indigenous peoples and local communities are facing growing resource extraction, commodity production, mining and transport and energy infrastructure, with various consequences for local livelihoods and health. Some climate change mitigation programmes have had negative impacts on indigenous peoples and local communities. The negative impacts of all these pressures include continued loss of subsistence and traditional livelihoods from ongoing deforestation, loss of wetlands, mining, the spread of unsustainable agriculture, forestry and fishing practices and impacts on health and well-being from pollution and water insecurity. These impacts also challenge traditional management, the transmission of indigenous and local knowledge, the potential for sharing of benefits arising from the use of, and the ability of indigenous peoples and local communities to conserve and sustainably manage, wild and domesticated biodiversity that are also relevant to the broader society. C. Goals for conserving and sustainably using nature and achieving sustainability cannot be met by current trajectories, and goals for 2030 and beyond may only be achieved through transformative3 changes across economic, social, political and technological factors Past and ongoing rapid declines in biodiversity, ecosystem functions and many of nature’s contributions to people mean that most international societal and environmental goals, such as those embodied in the Aichi Biodiversity Targets and the 2030 Agenda for Sustainable Development, will not be achieved based on current trajectories. These declines will also undermine other goals, such as those specified in the Paris Agreement adopted under the United Nations Framework Convention on Climate Change and the 2050 Vision for Biodiversity. The negative trends in biodiversity and ecosystem functions are projected to continue or worsen in many future scenarios in response to indirect drivers such as rapid human population growth, unsustainable production and consumption and associated technological development. In contrast, scenarios and pathways that explore the effects of a low-to-moderate population growth, and transformative changes in production and consumption of energy, food, feed, fibre and water, sustainable use, equitable sharing of the benefits arising from use and nature-friendly climate adaptation and mitigation, will better support the achievement of future societal and environmental objectives. C1 Implementation of policy responses and actions to conserve nature and manage it more sustainably has progressed, yielding positive outcomes relative to scenarios of no intervention, but not sufficiently to stem the direct and indirect drivers of nature deterioration. It is therefore

2 These data sources define land management here as the process of determining the use, development and care of land resources in a manner that fulfils material and non-material cultural needs, including livelihood activities such as hunting, fishing, gathering, resource harvesting, pastoralism and small-scale agriculture and horticulture. 3 A fundamental, system-wide reorganization across technological, economic and social factors, including paradigms, goals and values.

5 ADVANCE UNEDITED 000634 likely that most of the Aichi Biodiversity Targets for 2020 will be missed. Some of the Aichi Biodiversity Targets will be partially achieved, for example those related to policy responses such as the spatial extent of terrestrial and marine protected areas, identification and prioritization of invasive alien species, national biodiversity strategies and action plans and the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from Their Utilization to the Convention on Biological Diversity. However, while protected areas now cover 15 per cent of terrestrial and freshwater environments and 7 per cent of the marine realm, they only partly cover important sites for biodiversity and are not yet fully ecologically representative and effectively or equitably managed. There has been significant growth in official development assistance in support of the Convention on Biological Diversity and funding provided by the Global Environment Facility, with biodiversity aid flows reaching $8.7 billion annually. However, current resource mobilization from all sources is not sufficient to achieve the Aichi Biodiversity Targets. In addition, only one in five of the strategic objective and goals across six global agreements4 relating to nature and the protection of the global environment are demonstrably on track to be met. For nearly one third of the goals of these conventions there has been little or no progress towards them or, instead, movement away from them. C2 Nature is essential for achieving the Sustainable Development Goals. However, taking into consideration that the Sustainable Development Goals are integrated and indivisible, as well as implemented nationally, current negative trends in biodiversity and ecosystems will undermine progress towards 80 per cent (35 out of 44) of the assessed targets of goals related to poverty, hunger, health, water, cities, climate, oceans and land (Sustainable Development Goals 1, 2, 3, 6, 11, 13, 14, and 15). Important positive synergies between nature and goals on education, gender equality, reducing inequalities and promoting peace and justice (Sustainable Development Goals 4, 5, 10 and 16) were found. Land or resource tenure insecurity, as well as declines in nature, have greater impacts on women and girls, who are most often negatively impacted. However, current focus and wording of targets in these goals obscures or omits their relationship to nature, thereby preventing their assessment here. There is a critical need for future policy targets, indicators and datasets to more explicitly account for aspects of nature and their relevance to human well-being in order to more effectively track the consequences of trends in nature on Sustainable Development Goals. Some pathways chosen to achieve the goals related to energy, economic growth, industry and infrastructure and sustainable consumption and production (Sustainable Development Goals 7, 8, 9 and 12), as well as targets related to poverty, food security and cities (Sustainable Development Goals 1, 2 and 11), could have substantial positive or negative impacts on nature and therefore on the achievement of other Sustainable Development Goals. C3 Areas of the world projected to experience significant negative effects from global changes in climate, biodiversity, ecosystem functions and nature’s contributions to people are also home to large concentrations of indigenous peoples and many of the world’s poorest communities. Because of their strong dependency on nature and its contributions for subsistence, livelihoods and health, those communities will be disproportionately hard hit by those negative changes. Those negative effects also influence the ability of indigenous peoples and local communities to manage and conserve wild and domesticated biodiversity and nature’s contributions to people. Indigenous peoples and local communities have been proactively confronting such challenges in partnership with each other and with an array of other stakeholders, through co-management systems and local and regional monitoring networks and by revitalizing and adapting local management systems. Regional and global scenarios lack an explicit consideration of the views, perspectives and rights of indigenous peoples and local communities, their knowledge and understanding of large regions and ecosystems and their desired future development pathways. C4 Except in scenarios that include transformative change, negative trends in nature, ecosystem functions and in many of nature’s contributions to people are projected to continue to 2050 and beyond, due to the projected impacts of increasing land/and sea-use change, exploitation of organisms and climate change. Negative impacts arising from pollution and invasive alien species will likely exacerbate these trends. There are large regional differences in the projected patterns of future biodiversity and ecosystem functions and loss and changes in nature’s contributions to people. These differences arise from direct and indirect drivers of change, which are projected to impact regions in different ways. While regions worldwide face further declines in biodiversity in future

4 Convention on the Conservation of Migratory Species of Wild Animals, Convention on International Trade in Endangered Species of Wild Fauna and Flora, Convention concerning the Protection of the World Cultural and Natural Heritage, International Plant Protection Convention, United Nations Convention to Combat Desertification in Those Countries Experiencing Serious Drought and/or Desertification, Particularly in Africa, and Convention on Wetlands of International Importance especially as Waterfowl Habitat.

6 ADVANCE000635 UNEDITED projections, tropical regions face particular combined risks of declines due to interactions of climate change, land-use change and fisheries exploitation. Marine and terrestrial biodiversity in boreal, subpolar and polar regions is projected to decline mostly because of warming, sea ice retreat and enhanced ocean acidification. The magnitude of impacts and the differences between regions are much greater in scenarios with rapid increases in consumption or human population than in scenarios based on sustainability. Acting immediately and simultaneously on multiple indirect and direct drivers has the potential to slow, halt and even reverse some aspects of biodiversity and ecosystem loss. C5 Climate change is projected to become increasingly important as a direct driver of changes in nature and its contributions to people in the next decades. Scenarios show that meeting the Sustainable Development Goals and the 2050 Vision for Biodiversity depends on taking into account climate change impacts in the definition of future goals and objectives. The future impacts of climate change are projected to become more pronounced in the next decades, with variable relative effects depending on scenario and geographic region. Scenarios project mostly adverse climate change effects on biodiversity and ecosystem functioning, which worsen, in some cases exponentially, with incremental global warming. Even for global warming of 1.5°C to 2°C, the majority of terrestrial species ranges are projected to shrink profoundly. Changes in ranges can adversely affect the capacity of terrestrial protected areas to conserve species, greatly increase local species turnover and substantially increase the risk of global extinctions. For example, a synthesis of many studies estimates that the fraction of species at risk of climate-related extinction is 5 per cent at 2°C warming, rising to 16 per cent at 4.3°C warming. Coral reefs are particularly vulnerable to climate change and are projected to decline to 10-30 per cent of former cover at 1.5°C warming and to less than 1 per cent at 2°C warming. Therefore, scenarios show that limiting global warming to well below 2°C plays a critical role in reducing adverse impacts on nature and its contributions to people. D. Nature can be conserved, restored and used sustainably while simultaneously meeting other global societal goals through urgent and concerted efforts fostering transformative change Societal goals – including those for food, water, energy, health and the achievement of human well-being for all, mitigating and adapting to climate change and conserving and sustainably using nature – can be achieved in sustainable pathways through the rapid and improved deployment of existing policy instruments and new initiatives that more effectively enlist individual and collective action for transformative change. Since current structures often inhibit sustainable development and actually represent the indirect drivers of biodiversity loss, such fundamental, structural change is called for. By its very nature, transformative change can expect opposition from those with interests vested in the status quo, but such opposition can be overcome for the broader public good. If obstacles are overcome, commitment to mutually supportive international goals and targets, supporting actions by indigenous peoples and local communities at the local level, new frameworks for private sector investment and innovation, inclusive and adaptive governance approaches and arrangements, multi-sectoral planning and strategic policy mixes can help to transform the public and private sectors to achieve sustainability at the local, national and global levels. D1 The global environment can be safeguarded through enhanced international cooperation and linked locally relevant measures. The review and renewal of agreed environment-related international goals and targets based on the best available scientific knowledge and the widespread adoption and funding of conservation, ecological restoration and sustainable use actions by all actors, including individuals, are key to this safeguarding. Such widespread adoption implies advancing and aligning local, national and international sustainability efforts and mainstreaming biodiversity and sustainability across all extractive and productive sectors, including mining, fisheries, forestry and agriculture, so that individual and collective actions together result in the reversal of deterioration of ecosystem services at the global level. Yet these bold changes to the direct drivers of nature deterioration cannot be achieved without transformative change that simultaneously addresses the indirect drivers. {D29, 30} D2 Five main interventions (“levers”) can generate transformative change by tackling the underlying indirect drivers of nature deterioration: (1) incentives and capacity-building; (2) cross-sectoral cooperation; (3) pre-emptive action; (4) decision-making in the context of resilience and uncertainty; and (5) environmental law and implementation. Employing these levers involves the following, in turn: (1) developing incentives and widespread capacity for environmental responsibility and eliminating perverse incentives; (2) reforming sectoral and segmented decision-making to promote integration across sectors and jurisdictions; (3) taking pre-emptive and precautionary actions in regulatory and management institutions and businesses to avoid, mitigate and remedy the deterioration of nature, and monitoring their outcomes; (4) managing for resilient social and ecological systems in the face of uncertainty and complexity to deliver

7 ADVANCE UNEDITED 000636 decisions that are robust in a wide range of scenarios; and (5) strengthening environmental laws and policies and their implementation, and the rule of law more generally. All five levers may require new resources, particularly in low-capacity contexts such as in many developing countries. {BG32} D3 Transformations towards sustainability are more likely when efforts are directed at the following key leverage points, where efforts yield exceptionally large effects (Figure SPM.9): (1) visions of a good life; (2) total consumption and waste; (3) values and action; (4) inequalities; (5) justice and inclusion in conservation; (6) externalities and telecouplings; (7) technology, innovation and investment; and (8) education and knowledge generation and sharing. Specifically, the following changes are mutually reinforcing: (1) enabling visions of a good quality of life that do not entail ever-increasing material consumption; (2) lowering total consumption and waste, including by addressing both population growth and per capita consumption differently in different contexts; (3) unleashing existing widely held values of responsibility to effect new social norms for sustainability, especially by extending notions of responsibility to include impacts associated with consumption; (4) addressing inequalities, especially regarding income and gender, which undermine capacity for sustainability; (5) ensuring inclusive decision-making, fair and equitable sharing of benefits arising from the use of and adherence to human rights in conservation decisions; (6) accounting for nature deterioration from local economic activities and socioeconomic-environmental interactions over distances (telecouplings), including, for example, international trade; (7) ensuring environmentally friendly technological and social innovation, taking into account potential rebound effects and investment regimes; and (8) promoting education, knowledge generation and maintenance of different knowledge systems, including the sciences and indigenous and local knowledge regarding nature, conservation and its sustainable use. {BG32} D4 The character and trajectories of transformation will vary across contexts, with challenges and needs differing, among others, in developing and developed countries. Risks related to inevitable uncertainties and complexities in transformations towards sustainability can be reduced through governance approaches that are integrative, inclusive, informed and adaptive. Such approaches typically take into account the synergies and trade-offs between societal goals and alternative pathways and recognize a plurality of values, diverse economic conditions, inequity, power imbalances and vested interests in society. Risk-reducing strategies typically include learning from experience that is based on a combination of precautionary measures and existing and emerging knowledge. These approaches involve stakeholders in the coordination of policies across sectors and the creation of strategic locally relevant mixes of successful policy instruments. The private sector can play roles in partnership with other actors, including national and subnational governments and civil society; for example, public-private partnerships in the water sector have been an important vehicle for financing investments to meet the Sustainable Development Goals. Some effective policy measures include the expansion and strengthening of ecologically representative and well-connected protected- area networks and other effective area-based conservation measures, the protection of watersheds and incentives and sanctions to reduce pollution {Table SPM1}. {BG31} D5 Recognizing the knowledge, innovations and practices, institutions and values of indigenous peoples and local communities and their inclusion and participation in environmental governance often enhances their quality of life, as well as nature conservation, restoration and sustainable use, which is relevant to broader society. Governance, including customary institutions and management systems, and co-management regimes involving indigenous peoples and local communities, can be an effective way to safeguard nature and its contributions to people, incorporating locally attuned management systems and indigenous and local knowledge. The positive contributions of indigenous peoples and local communities to sustainability can be facilitated through national recognition of land tenure, access and resource rights in accordance with national legislation, the application of free, prior and informed consent, and improved collaboration, fair and equitable sharing of benefits arising from the use, and co-management arrangements with local communities. {BG31} D6 Feeding humanity and enhancing the conservation and sustainable use of nature are complementary and closely interdependent goals that can be advanced through sustainable agricultural, aquacultural and livestock systems, the safeguarding of native species, varieties, breeds and habitats, and ecological restoration. Specific actions include promoting sustainable agricultural practices, such as good agricultural and agroecological practices, among others, multifunctional landscape planning and cross-sectoral integrated management, that support the conservation of genetic diversity and associated agricultural biodiversity. Further actions to simultaneously achieve food security, biodiversity protection and sustainable use are context-appropriate climate change mitigation and adaptation, incorporating knowledge from various systems, including the sciences and sustainable indigenous and local practices, avoiding food waste, empowering producers and consumers to transform supply chains and facilitating sustainable and 8 ADVANCE000637 UNEDITED healthy dietary choices. As part of integrated landscape planning and management, prompt ecological restoration emphasizing the use of native species can offset current degradation and save many endangered species but is less effective if delayed. {BG 35, 36} D7 Sustaining and conserving fisheries and marine species and ecosystems can be achieved through a coordinated mix of interventions on land, in freshwater and in the oceans, including multilevel coordination across stakeholders on the use of open oceans. Specific actions could include, for example, ecosystem-based approaches to fisheries management, spatial planning, effective quotas, marine protected areas, protecting and managing key marine biodiversity areas, reducing run- off pollution into oceans and working closely with producers and consumers {Table SPM.1}. It is important to enhance capacity-building for the adoption of best fisheries management practices; adopt measures to promote conservation financing and corporate social responsibility; develop new legal and binding instruments; implement and enforce global agreements for responsible fisheries; and urgently take all steps necessary to prevent, deter and eliminate illegal, unreported and unregulated fishing. {BG 34, 37, 38} D8 Land-based climate change mitigation activities can be effective and support conservation goals {Table SPM.1}. However, the large-scale deployment of bioenergy plantations and afforestation of non-forest ecosystems can come with negative side effects for biodiversity and ecosystem functions. Nature-based solutions with safeguards are estimated to provide 37 per cent of climate change mitigation until 2030 needed to meet 2°C goals with likely co-benefits for biodiversity. Therefore, land-use actions are indispensable, in addition to strong actions to reduce greenhouse gas emissions from fossil fuel use and other industrial and agricultural activities. However, the large-scale deployment of intensive bioenergy plantations, including monocultures, replacing natural forests and subsistence farmlands, will likely have negative impacts on biodiversity and can threaten food and water security as well as local livelihoods, including by intensifying social conflict. {BG 25, 38} D9 Nature-based solutions can be cost-effective for meeting the Sustainable Development Goals in cities, which are crucial for global sustainability. Increased use of green infrastructure and other ecosystem-based approaches can help to advance sustainable urban development while reinforcing climate mitigation and adaptation. Urban key biodiversity areas should be safeguarded. Solutions can include retrofitting green and blue infrastructure, such as creating and maintaining green spaces and biodiversity-friendly water bodies, urban agriculture, rooftop gardens and expanded and accessible vegetation cover in existing urban and peri-urban areas and new developments. Green infrastructure in urban and their surrounding rural areas can complement large-scale “grey infrastructure” in areas such as flood protection, temperature regulation, cleaning of air and water, treating wastewater and the provision of energy, locally sourced food and the health benefits of interaction with nature. {BG 39} D10 A key constituent of sustainable pathways is the evolution of global financial and economic systems to build a global sustainable economy, steering away from the current limited paradigm of economic growth. That implies incorporating the reduction of inequalities into development pathways, reducing overconsumption and waste and addressing environmental impacts such as externalities of economic activities, from the local to the global scales. Such an evolution could be enabled through a mix of policies and tools (such as incentive programmes, certification and performance standards) and more internationally consistent taxation, supported by multilateral agreements and enhanced environmental monitoring and evaluation. It would also entail a shift beyond standard economic indicators such as gross domestic product to include those able to capture more holistic, long-term views of economics and quality of life. {BG 33, 40}

BACKGROUND

A. Nature and its vital contributions to people, which together embody biodiversity and ecosystem functions and services, are deteriorating worldwide 1. Nature underpins quality of life by providing basic life support for humanity (regulating), as well as material goods (material) and spiritual inspiration (non-material) (well established) {2.3.1, 2.3.2}. Most of nature’s contributions to people (NCP) are co-produced by biophysical processes and ecological interactions with anthropogenic assets such as knowledge, infrastructure, financial capital, technology and the institutions that mediate them (well established) {2.3.2} (Appendix SPM.1). For example, marine and freshwater-based food is co- produced by the combination of fish populations, fishing gear, and access to fishing grounds {2.3.3} There is unequal access to nature’s contributions and unequal impact of nature’s contributions on

9 ADVANCE UNEDITED 000638 different social groups (established but incomplete) {2.3.5}. Furthermore, increases in the production of some of nature’s contributions cause declines in others (Figure SPM.1) {2.3.2, 2.3.5}, which also affects people differently (well established). For example, clearing of forest for agriculture has increased the provision of food and feed (NCP 12) and other materials important for people (such as natural fibres, and ornamental flowers: NCP 13) but has reduced contributions as diverse as pollination (NCP 2), climate regulation (NCP 4), water quality regulation (NCP 7), opportunities for learning and inspiration (NCP 15) and the maintenance of options for the future (NCP 18). However, very few large-scale systematic studies exist on those relationships {2.3.2}. Land degradation has reduced productivity in 23% of global terrestrial area and $235-577 billion US in annual global crop output is at risk as a result of pollinator loss {2.3.5.3} (established but incomplete).

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Figure 1. Global trends in the capacity of nature to sustain contributions to good quality of life from 1970 to the present, which show a decline for 14 of the 18 categories of nature’s contributions to people analyzed. Data supporting global trends and regional variations come from a systematic review of over 2,000 studies {2.3.5.1}. Indicators were selected on the basis of availability of global data, prior use in assessments and alignment with 18 categories. For many categories of nature’s contributions, two indicators are included that show different aspects of nature’s capacity to contribute to human well-being within that category. Indicators are defined so that an increase in the indicator is associated with an improvement in nature’s contributions.

2. Many of nature’s contributions to people are essential for human health (well established) and their decline thus threatens a good quality of life (established but incomplete) {2.3.4}. Nature provides a broad diversity of nutritious foods, medicines and clean water (well established) {2.3.5.2, 3.3.2.1, 3.3.2.2 (Sustainable Development Goal 3)},can help to regulate disease and the immune system {2.3.4.2}, reduce levels of certain air pollutants (established but incomplete) {2.3.4.2, 3.3.2.2} and improve mental and physical health through exposure to natural areas (inconclusive), among other contributions {2.3.2.2, 2.3.4.2, 3.3.2.2 (Sustainable Development Goal 3)}. Nature is the origin of most infectious diseases (negative impact), but also the source of medicines and antibiotics for treatment (positive contribution) (well established). Zoonotic diseases are significant threats to human health, with vector-borne diseases accounting for approximately 17 per cent of all infectious diseases and causing an estimated 700,000 deaths globally per annum (established but incomplete) {3.3.2.2}. The deterioration of biodiversity and ecosystem functions, and the consequent disruption of benefits to people, has both direct and indirect implications for public health. Emerging infectious diseases in wildlife, domestic animals, plants or people can be exacerbated by human activities such as land clearing and habitat fragmentation (established but incomplete) or the overuse of antibiotics driving rapid evolution of antibiotic resistance in many bacterial pathogens (well established) {3.3.2.2}. The deterioration of nature and consequent disruption of benefits to people has both direct and indirect implications for public health (well established) {2.3.5.2} and can exacerbate existing inequalities in access to health care or healthy diets (established but incomplete) {2.3.4.2}. Shifting diets towards a diversity of foods, including fish, fruit, nuts and vegetables, significantly reduces the risk of certain preventable non-communicable diseases, which are currently responsible for 20% of premature mortality globally (well established) {2.3.4.2, 2.3.5.2 (NCP 2 and 12)}. 3. Most of nature’s contributions are not fully replaceable, yet some contributions of nature are irreplaceable (well established). Loss of diversity, such as phylogenetic and functional diversity, can permanently reduce future options, such as wild species that might be domesticated as new crops and be used for genetic improvement {2.3.5.3}. People have created substitutes for some other contributions of nature, but many of them are imperfect or financially prohibitive {2.3.2.2}. For example, high-quality drinking water can be realized either through ecosystems that filter pollutants or through human-engineered water treatment facilities {2.3.5.3}. Similarly, coastal flooding from storm surges can be reduced either by coastal mangroves or by dikes and sea walls {2.3.5.3}. In both cases, however, built infrastructure can be extremely expensive, incur high future costs and fail to provide synergistic benefits such as nursery habitats for edible fish or recreational opportunities {2.3.5.2}. More generally, human-made replacements often do not provide the full range of benefits provided by nature {2.3.2.2} (Figure SPM.1). 4. Humanity is a dominant global influence on life on earth, and has caused natural terrestrial, freshwater and marine ecosystems to decline (well established) {2.2.5.2} (Figure SPM.2). Global indicators of ecosystem extent and condition have shown a decrease by an average of 47 per cent of their estimated natural baselines, with many continuing to decline by at least 4 per cent per decade (established but incomplete) {2.2.5.2.1}. On land, particularly sensitive ecosystems include old-growth forests, insular ecosystems, and wetlands; and only around 25% of land is sufficiently unimpacted that ecological and evolutionary processes still operate with minimal human intervention (established but incomplete) {2.2.3.4.1, 2.2.5.2.1}. In terrestrial “hotspots” of endemic species, natural habitats have generally undergone greater reductions to date in extent and condition, and tend to be experiencing more rapid ongoing decline, on average than other terrestrial regions {2.2.5.2.1}. Globally, the net rate of forest loss has halved since the 1990s, largely because of net increases in temperate and high latitude forests; high-biodiversity tropical forests continue to dwindle, and global forest area is now approximately 68 per cent of the estimated pre-industrial level (established but incomplete) {2.2.5.2.1}. Forests and natural mosaics sufficiently undamaged to be classed as “intact” (defined as being larger than 500 km2 where satellites can detect no human pressure) were reduced by 7 per cent (919, 000 km2) between 2000 and 2013, shrinking in both developed and developing countries {2.2.5.2.1}. Inland waters and freshwater ecosystems show among the highest rates of decline. Only 13% of the wetland present in 1700 remained by 2000; recent

11 ADVANCE UNEDITED 000640 losses have been even more rapid (0.8% per year from 1970 to 2008) (established but incomplete) {2.2.7.9}.

Figure 2. Examples of global declines in nature, emphasizing declines in biodiversity, that have been and are being caused by direct and indirect drivers of change. The direct drivers (land/sea use change; direct exploitation of organisms; climate change; pollution; and invasive alien species)5 result from an array of underlying societal causes6. These causes can be demographic (e.g. human population dynamics), sociocultural (e.g. consumption patterns), economic (e.g. trade), technological or relating to institutions, governance, conflicts and epidemics; these are called indirect drivers7, and are underpinned by societal values and behaviors. The colour bands represent the relative global impact of direct drivers on (from top to bottom) terrestrial, freshwater and marine nature as estimated from a global systematic review of studies published since 2005. Land and sea use change and direct exploitation account for more than 50 per cent of the global impact on land, in fresh water and in the sea, but each driver is dominant in certain contexts {2.2.6}. The circles illustrate the magnitude of the negative human impacts on a diverse selection of aspects of nature over a range of different time scales, based on a global synthesis of indicators {2.2.5, 2.2.7}. 5. Marine ecosystems, from coastal to deep sea, now show the influence of human actions, with coastal marine ecosystems showing both large historical losses of extent and condition as well as rapid ongoing declines (established but incomplete) {2.2.5.2.1, 2.2.7.15} (Figure SPM.2). Over 40% of ocean area was strongly affected by multiple drivers in 2008, and 66% was experiencing increasing cumulative impacts in 2014. Only 3% of the ocean was described as free from human pressure in 2014 (established but incomplete) {2.2.5.2.1, 3.2.1}. Seagrass meadows decreased in extent by over 10 per cent per decade from 1970-2000 (established but incomplete) {2.2.5.2.1}. Live coral cover on reefs has nearly halved in the past 150 years, the decline dramatically accelerating over the past 2-3 decades due to increased water temperature and ocean acidification interacting with and further exacerbating other drivers of loss (well established) {2.2.5.2.1}. These coastal marine ecosystems are among the most productive systems globally, and their loss and deterioration reduces their ability to protect shorelines, and the people and species that live there, from storms, as well as their ability to provide sustainable livelihoods (well established) {2.2.5.2.1, 2.3.5.2}. Severe impacts to ocean ecosystems are illustrated by 33% of fish stocks being classified as overexploited and greater than 55% of ocean area being subject to industrial fishing (established but incomplete) {2.1.11.1; 2.2.5.2.4, 2.2.7.16}. 6. The global rate of species extinction is already at least tens to hundreds of times higher than the average rate over the past 10 million years and is accelerating (established but incomplete) {2.2.5.2.4} (Figure SPM.3). Human actions have already driven at least 680 vertebrate

5 The classification of direct drivers used throughout this assessment is in {2.1.12 - 2.1.17} 6 The interactions among indirect and direct drivers are addressed in {2.1.11, 2.1.18} 7 The classification of indirect drivers used throughout this assessment is in {2.1.12 - 2.1.17}

12 ADVANCE000641 UNEDITED species to extinction since 1500, including the Pinta Giant Tortoise in the Galapagos in 2012, even though successful conservation efforts have saved from extinction at least 26 bird species and 6 ungulate species including the Arabian Oryx, and the Przewalski’s Horse {3.2.1}. The threat of extinction is also accelerating: in the best-studied taxonomic groups, most of the total extinction risk to species is estimated to arisen in the past 40 years (established but incomplete) {2.2.5.2.4}. The proportion of species currently threatened with extinction according to the IUCN Red List criteria averages around 25 per cent across the many terrestrial, freshwater and marine vertebrate, invertebrate and plant groups that have been studied in sufficient detail to support a robust overall estimate (established but incomplete) {2.2.5.2.4, 3.2}. More than 40 per cent of amphibian species, almost a third of reef-forming corals, sharks and shark relatives and over a third of marine mammals are currently threatened {2.2.5.2.4, 3}. The proportion of insect species threatened with extinction is a key uncertainty, but available evidence supports a tentative estimate of 10 per cent (established but incomplete) {2.2.5.2.4}. Those proportions suggest that, of an estimated 8 million animal and plant species (75% of which are insects), around 1 million are threatened with extinction (established but incomplete) {2.2.5.2.4}. A similar picture also emerges from an entirely separate line of evidence. Habitat loss and deterioration, largely caused by human actions, have reduced global terrestrial habitat integrity by 30 per cent relative to an unimpacted baseline; combining that with the longstanding relationship between habitat area and species numbers suggests that around 9 per cent of the world’s estimated 5.9 million terrestrial species – more than 500,000 species – have insufficient habitat for long-term survival, are committed to extinction, many within decades, unless their habitats are restored (established but incomplete){2.2.5.2.4}. Population declines often give warning that a species’ risk of extinction is increasing. The Living Planet Index, which synthesises trends in vertebrate populations, has declined rapidly since 1970, falling by 40% for terrestrial species, 84% for freshwater species and 35% for marine species (established but incomplete) {2.2.5.2.4}. Local declines of insect populations such as wild bees and butterflies have often been reported, and insect abundance has declined very rapidly in some places even without large-scale land-use change, but the global extent of such declines is not known (established but incomplete) {2.2.5.2.4}. On land, wild species that are endemic (narrowly distributed) have typically seen larger-than-average changes to their habitats and shown faster-than-average declines (established but incomplete) {2.2.5.2.3, 2.2.5.2.4}.

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Figure 3. A substantial proportion of assessed species are threatened with extinction and overall trends are deteriorating, with extinction rates increasing sharply in the past century. (A) Percentage of species threatened with extinction in taxonomic groups that have been assessed comprehensively, or through a ‘sampled’ approach, or for which selected subsets have been assessed, by the International Union for Conservation of Nature (IUCN) Red List of Threatened Species. Groups are ordered according to the best estimate for the percentage of extant species considered threatened (shown by the vertical blue lines), assuming that data deficient species are as threatened as non-data deficient species. (B) Extinctions since 1500 for vertebrate groups. Rates for Reptiles and Fishes have not been assessed for all species. (C) Red List Index of species survival for taxonomic groups that have been assessed for the IUCN Red List at least twice. A value of 1 is equivalent to all species being categorized as Least Concern; a value of zero is equivalent to all species being classified as Extinct. Data for all panels derive from www.iucnredlist.org (see Chapter 3 Figure 3.4 and Chapter 2 Figure 2.7).

7. The number of local varieties and breeds of domesticated plants and animals and their wild relatives has been reduced sharply as a result of land use change, knowledge loss, market preferences and large-scale trade (well established) {2.2.5.2.6, 2.2.5.3.1}. Domestic varieties of plants and animals s are the result of nature and human managed selection, sometimes over centuries or millennia, and tend to show a high degree of adaptation (genotypic and phenotypic) to local conditions (well established) {2.2.4.4}. As a result, the pool of genetic variation which underpins food security has declined (well established) {2.2.5.2.6}. 10 per cent of domesticated breeds of mammals were recorded as extinct, as well as some 3.5 per cent of domesticated breeds of birds (well established) {2.2.5.2.6} Many hotspots of agrobiodiversity and crop wild relatives are also under threat or not formally protected. The conservation status of wild relatives of domesticated livestock has also deteriorated. These wild relatives represent critical reservoirs of genes and traits that may provide resilience against future climate change, pests and pathogens and may improve current heavily depleted gene pools of many crops and domestic animals {2.2.3.4.3}. The lands of indigenous peoples and local communities, including farmers, pastoralists and herders, are often important areas for in situ conservation of the remaining varieties and breeds (well established) {2.2.5.3.1}. Available data 14 ADVANCE000643 UNEDITED suggest that genetic diversity within wild species globally has been declining by about 1 per cent per decade since the mid-19th century; and genetic diversity within wild mammals and amphibians tends to be lower in areas where human influence is greater (established but incomplete) {2.2.5.2.6}. 8. Human-driven changes in species diversity within local ecological communities vary widely, depending on the net balance between species loss and the influx of alien species, disturbance-tolerant species, other human-adapted species or climate migrant species (well established) {2.2.5.2.3}. Even though human-dominated landscapes are sometimes species-rich, their species composition is markedly altered from that in natural landscapes (well established) {2.2.5.2.3, 2.2.7.10, 2.2.7.11}. As a result of human-caused changes in community composition, naturally occurring species in local terrestrial ecosystems worldwide are estimated to have lost at least 20 per cent of their original abundance on average, with hotspots of endemic species tending to have lost even more (established but incomplete) {2.2.5.2.3}. The traits of species influence whether they persist or even thrive in human-modified ecosystems (well established) {2.2.3.6, 2.2.5.2.5}. For example, species that are large, grow slowly, are habitat specialists or are carnivores – such as great apes, tropical hardwood trees, sharks and big cats – are disappearing from many areas. Many other species, including those with opposite characteristics, are becoming more abundant locally and are spreading quickly around the world; across a set of 21 countries with detailed records, the numbers of invasive alien species per country have risen by some 70 per cent since 1970 {2.2.5.2.3}. The effects of invasive alien species are often particularly severe for the native species and assemblages on islands and in other settings with high proportions of endemic species (well established) {2.2.3.4.1, 2.2.5.2.3}. Invasive alien species can have devastating effects on mainland assemblages as well: for example, a single invasive pathogen species, Batrachochytrium dendrobatidis, is a threat to nearly 400 amphibian species worldwide and has already caused a number of extinctions (well established) {2.2.5.2.3}. Many drivers add already-widespread species to ecological communities in many places; and many drivers cause endemic species to decline in many places. These two processes have contributed to the widespread erosion of differences between ecological communities in different places, a phenomenon known as biotic homogenization or the ‘anthropogenic blender’ (well established) {2.2.5.2.3}. The consequences of all these changes for ecosystem processes and hence on nature’s contributions to people can be very significant. For example, the decline and disappearance of large herbivores and predators has dramatically affected the structure, fire regimes, seed dispersal, land surface albedo and nutrient availability within many ecosystems (well established) {2.2.5.2.1}. However, the consequences of changes often depend on details of the ecosystem, remain hard to predict and are still understudied (established but incomplete) {2.2.5.2.3}. 9. Many organisms show ongoing biological evolution so rapid that it is detectable within only a few years on even more quickly – in response to anthropogenic drivers (well established) {2.2.5.2.5, 2.2.5.2.6}. Management decisions that take those evolutionary changes into account will be noticeably more effective (established but incomplete) {Box 2.5}. This human driven contemporary evolution, which has long been recognized in microbes, viruses, agricultural insect pests and weeds (well established), is now being observed in some species within all major taxonomic groups (animals, plants, fungi and microorganisms). Such changes are known to occur in response to human activities or drivers, such as hunting, fishing, harvesting, climate change, ocean acidification, soil and water pollution, invasive species, pathogens, pesticides and urbanization (established but incomplete) {2.2.5.2.5}. However, management strategies typically assume that evolutionary changes occur only over much longer time periods and thus ignore rapid evolution. These policy considerations span many spheres in which management actions designed to slow or speed evolution can dramatically change outcomes, as the following examples indicate. Insects, weeds and pathogens evolve resistance to insecticides, herbicides and other control agents, yet management strategies such as refuges, crop rotation, and crop diversity can dramatically slow that undesirable evolution (well established) {Box 2.5}. Commercial fish populations have evolved to mature earlier under intensive harvesting, which sometimes can be minimized by mandating changes in fishing gear or size limits (established but incomplete) {2.2.5.2.5}. Climate change favours the evolution of seasonally earlier reproduction in many organisms, which can in principle be facilitated through the introduction of individuals from populations already adapted to such conditions (established but incomplete) {2.2.5.2.5}. Mosquitoes rapidly evolve resistance to efforts to control them, but evolutionarily informed management actions can dramatically slow that undesirable evolution (established but incomplete) {2.2.5.2.5}. Contemporary evolution is thus relevant to many policy concerns. Understanding and working with contemporary evolution can address important concerns surrounding pollination and dispersal, coral persistence in the face of ocean acidification, water quality, pest regulation, food production and options for the future (established but incomplete). The specific actions taken will typically be case- specific and therefore will require careful assessment of evolutionary potential and consequences. In many cases, the best strategy could be to simply maintain the ability of natural populations to respond evolutionarily on their own - rather than through direct human manipulation of evolution. 15 ADVANCE UNEDITED 000644 B. Direct and indirect drivers of change have accelerated during the past 50 years 10. Today, humans extract more from the Earth and produce more waste than ever before (well established). Globally, land-use change is the direct driver with the largest relative impact on terrestrial and freshwater ecosystems, while direct exploitation of fish and seafood has the largest relative impact in the oceans (well established) (Figure SPM.2) {2.2.6.2}. Climate change, pollution and invasive alien species have had a lower relative impact to date but are accelerating (established but incomplete) {2.2.6.2, 3.2, 4.2}. Although the pace of agricultural expansion into intact ecosystems {2.1.13} has varied from country to country, losses of intact ecosystems have occurred primarily in the tropics, home to the highest levels of biodiversity on the planet (for example, 100 million hectares of tropical forest from 1980 to 2000), due to cattle ranching in Latin America (~42 million ha) and plantations in South-East Asia (~7.5 million hectares, 80% in oil palm) among others {2.1.13}, noting plantations also can raise total forest area. Within land-use change, urban areas have more than doubled since 1992. In terms of direct exploitation, approximately 60 billion tons8 of renewable and non-renewable resources {2.1.2} are being extracted each year. That total nearly doubled since 1980, as population grew considerably while the average per capita consumption of materials (e.g., plants, animals, fossil fuels, ores, construction material) rose by 15 per cent since 1980 (established but incomplete) {2.1.6, 2.1.11, 2.1.14}. This activity has generated unprecedented impacts: since 1980, greenhouse gas emissions doubled {2.1.11, 2.1.12}, raising average global temperatures by at least 0.7 degrees Celsius {2.1.12}, while plastic pollution in oceans has increased tenfold {2.1.15}. Over 80 per cent of global wastewater is being discharged back into the environment without treatment, while 300–400 million tons of heavy metals, solvents, toxic sludge and other wastes from industrial facilities are dumped into the world’s waters each year {2.1.15}. Excessive or inappropriate application of fertilizer can lead to run off from fields and enter freshwater and coastal ecosystems, producing more than 400 hypoxic zones which affect a total area of more than 245,000 km2 as early as 2008{2.1.15}. In some island countries invasive alien species have a significant impact on biodiversity, with introduced species being a key driver of extinctions. 11. Land-use change is driven primarily by agriculture, forestry and urbanization, all of which are associated with air, water and soil pollution. Over one third of the world’s land surface and nearly three-quarters of available freshwater resources are devoted to crop or livestock production {2.1.11}. Crop production occurs on some 12 per cent of total ice-free land. Grazing occurs on about 25 per cent of total ice-free lands and approximately 70 per cent of drylands {2.1.11}. Approximately 25 per cent of the globe’s greenhouse-gas emissions come from land clearing, crop production and fertilization, with animal-based food contributing 75 per cent of that. Intensive agriculture has increased food production at the cost of regulating and non-material contributions from nature, though environmentally beneficial practices are increasing. Small landholdings (less than 2 hectares) contribute approximately 30 per cent of global crop production and 30 per cent of the global food caloric supply, using around a quarter of agricultural land and usually maintaining rich agrobiodiversity {2.1.11}. Moving to logging, between 1990 and 2015 clearing and wood harvest contributed to a total reduction of 290 million hectares in native forest cover, while the area of planted forests grew by 110 million hectares {2.1.11}. Industrial roundwood harvest is falling within some developed countries but rising on average in developing countries {2.1.11}. Illegal timber harvests and related trade supply 10–15 per cent of global timber, and up to 50 per cent in certain areas, hurting revenues for state owners and livelihoods for the rural poor. All mining on land has increased dramatically and, while still using less than 1 per cent of the Earth’s land, has had significant negative impacts on biodiversity, emissions of highly toxic pollutants, water quality and water distribution, and human health {2.1.11}. Mined products contribute more than 60 per cent of the GDP of 81 countries. There are approximately 17,000 large-scale mining sites in 171 countries, with the legal sites mostly managed by international corporations but also extensive illegal and small-scale mining that is harder to trace, and both types of sites often in locations relevant for biodiversity {2.1.11}. 12. In marine systems, fishing has had the most impact on biodiversity (target species, non-target species and habitats) in the past 50 years alongside other significant drivers (well established) {2.1.11, 2.2.6.2} (Figure SPM.2). Global fish catches have been sustained by expanding geographically and penetrating deeper waters (well established) {3.2.1}. An increasing proportion of marine fish stocks are overfished (33 per cent in 2015), including economically important species, while 60 per cent are maximally sustainably fished and only 7 per cent are underfished (well established) {Box 3.1}. Industrial fishing, concentrated in a few countries and corporations {2.1.11}, covers at least 55 per cent of the oceans, largely concentrated in the northeast Atlantic, the northwest Pacific and upwelling regions off South America and West Africa (established but incomplete) {2.1.11}. Small-scale fisheries account for more than 90 per cent of commercial

8 All references to “tons” are to metric tons.

16 ADVANCE000645 UNEDITED fishers (over 30 million people), and nearly half of global fish catch (established but incomplete). In 2011, illegal, unreported or unregulated fishing represented up to one third of the world’s reported catch (established but incomplete) {2.1.11}. Since 1992, regional fisheries bodies have been adopting sustainable development principles. As of 1 April 2018, 52 countries and one Member Organization had become Parties to the Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing, in order to address the depletion of marine fisheries (established but incomplete) {2.1.11}, reduce by-catch {3, box 3.3}, lower damage to seabeds and reefs. In addition, the set of established marine protected areas has been growing (well established) {2.1.11.1, 2.2.7.16}. 13. The direct driver with the second highest relative impact on the oceans is the many changes in the uses of the sea and coastal land (well established) (Figure SPM.2) {2.2.6.2}. Coastal habitats, including estuaries and deltas critical for marine biota and regional economies, have been severely affected by sea-use changes (coastal development, offshore aquaculture, mariculture and bottom trawling) and land-use changes (onshore land clearance and urban sprawl along coastlines, plus pollution of rivers). Pollution from land sources is already a major driver of negative environmental change. Ocean mining, while relatively small, has expanded since 1981 to ~ 6,500 offshore oil and gas installation worldwide in 53 countries (60% in the Gulf of Mexico by 2003) and likely will expand into the Arctic and Antarctic regions as the ice melts {2.1.11}. Ocean acidification, from increased carbon dioxide levels, largely affects shallow waters, with the ecosystems of the subarctic Pacific and western Arctic Ocean particularly affected. Plastic microparticles and nanoparticles are entering food webs in poorly understood ways {2.1.15.3}. Coastal waters hold the highest levels of metals and persistent organic pollutants from industrial discharges and agricultural runoff, poisoning coastal fish harvests. Severe effects from excess nutrient concentrations in certain locations include damage to fish and seabed biota. The dynamics of ocean and airborne transport of pollutants mean that the harm from inputs of plastics, persistent organic pollutants, heavy metals and ocean acidification is felt worldwide, including with consequences for human health. 14. Climate change is already having an impact on nature, from genes to ecosystems. It poses a growing risk owing to the accelerated pace of change and interactions with other direct drivers (well established) {2.1.12, 2.1.18, 2.2.6.2}. Shifts in species distribution, changes in phenology, altered population dynamics and changes in the composition of species assemblage, or the structure and function of ecosystems, are evident {2.2.5.3.2, 2.2.5.2.3, 2.2.6.2} and accelerating in marine, terrestrial and freshwater systems (well established) {2.2.3.2}. Almost half (47 per cent) of threatened terrestrial mammals, excluding bats, and one quarter (23 per cent) of threatened birds may have already been negatively affected by climate change in at least part of their distribution (birds in North America and Europe suggest effects of climate change in their population trends since the 1980s) (established but incomplete) {2.2.6.2}. Ecosystems such as tundra and taiga and regions such as Greenland, previously little affected by people directly, are increasingly experiencing impacts of climate change (well established) {2.2.7.5}. Large reductions and local extinctions of populations are widespread (well established) {2.2.6.2}. This indicates that many species are unable to cope locally with the rapid pace of climate change, through either evolutionary or behavioral processes, and that their continued existence will also depend on the extent to which they are able to disperse, to track suitable climatic conditions, and to preserve their capacity to evolve (well established) {2.2.5.2.5}. Many of these changes can have significant impacts on a number of important economic sectors and cascading effects for other components of biodiversity. Island nations – in particular those in East Asia and the Pacific region, will be most vulnerable to sea-level rise (1m) as projected by all climate change scenarios {2.1.1.7.1} displacing close to 40 million people {2.1.1.7.1; 2.2.7.1.8}. 15. Unsustainable use of the Earth’s resources is underpinned by a set of demographic and economic indirect drivers that have increased and, further, interact in complex ways, including through trade (well established) {2.1.6}. The global human population has increased from 3.7 to 7.6 billion since 1970 unevenly across countries and regions which has strong implications for the degradation of nature. Per capita consumption also has grown, and also is unequal, with wide variation in lifestyles and access to resources across and within regions, plus consequences for nature that are distributed globally through trade. Total gross domestic product is 4 times higher, and rising faster, in developed than in least developed countries. Approximately 821 million people face food insecurity in Asia and Africa while 40 per cent of the global population lacks access to clean, safe drinking water. Generally, environmentally based health burdens such as air and water pollution are more prevalent in least developed countries {2.1.2., 2.1.15} 16. Due to expansions of infrastructure, extensive areas of the planet are being opened up to new threats (well established) {2.1.11}. Globally, paved road lengths are projected to increase by 25 million kilometres by 2050, with nine tenths of all road construction occurring within least developed and developing countries. The number of dams has escalated in the past 50 years. Worldwide, there 17 ADVANCE UNEDITED 000646 are now about 50,000 large dams (higher than 15 metres) and approximately 17 million reservoirs (larger than 0.01 hectares OR 100m2) {2.1.11}. The expansions of roads, cities, hydroelectric dams, and oil and gas pipelines can come with high environmental and social costs, including deforestation, habitat fragmentation, biodiversity loss, land grabbing, population displacement, and social disruption including for indigenous peoples and local communities (established but incomplete). Yet infrastructure can generate positive economic effects, and even environmental gains, based on efficiency, innovation, migration, and urbanization, depending on where and how investment is implemented and governed (well established) {2.1.11}. Understanding this variation in impacts is critical. 17. Long-distance transportation of goods and people, including for tourism, have grown dramatically in the past 20 years with negative consequences for nature overall (established but incomplete). The rise in airborne and seaborne transportation of both goods and people, including a threefold increase in travel from developed and developing countries in particular, has increased pollution and significantly raised invasive alien species (well established) {2.1.15}. Between 2009 and 2013, the carbon footprint from tourism rose 40 per cent to 4.5 gigatons of carbon dioxide and overall 8 per cent of the total greenhouse-gas emissions are from transport and food consumption that are related to tourism {2.1.11, 2.1.15}. The demand for nature-based tourism, or ecotourism, also has risen, with mixed effects on nature and local communities, including some potential for contributions to local conservation in particular when carried out at smaller scales {2.1.11}. 18. Distant areas of the world are increasingly connected as consumption, production, and governance decisions increasingly influence materials, waste, energy, and information flows in other countries, generating aggregate economic gains while shifting economic and environmental costs, which can link to conflicts (established but incomplete) (Figure SPM.4). As per capita consumption has risen developed countries and rapidly growing developing countries {2.1.2, 2.1.6}, and while at times efficient production supports exports, these countries often reduce water consumption and forest degradation nationally {2.1.6, 2.1.11} by importing crops, and other resources, mainly from developing countries {2.1.6}. Developing countries then see declines in nature and its contributions to people (habitat, climate, air and water quality) different from the exported food, fibre and timber products (Figures SPM.1 and 5). Reduced, declining and unequal access to nature’s contributions to people may, in a complex interaction with other factors may be a source of conflict within and among countries (established but incomplete). Least developed countries, often rich in and more dependent upon natural resources, have suffered the highest land degradation, and have also experienced more conflict, and lower economic growth, and has contributed to environmental outmigrants numbering several million {2.1.2, 2.1.4}. When indigenous peoples or local communities are expelled from or threatened upon their lands, including by mining or industrial logging for export, this too can spark contestation – often between actors with different levels as power as today a few actors can control large shares of any market or capital asset (rivalling most countries {2.1.6}), while funds channelled through tax havens support most vessels implicated in illegal, unreported and unregulated fishing More than 2,500 conflicts over fossil fuels, water, food and land are currently occurring across the planet, including with at least 1,000 environmental activists and journalists killed between 2002 and 2013 {2.1.11, 2.1.18}.

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Figure 4. Development pathways since 1970 for selected key indicators of human-environment interactions, which show a large increase in the scale of global economic growth and its impacts on nature, with strong contrasts across developed, developing, and least developed countries. Countries are classified according to the UN World Economic Situation and Prospects (www.un.org). Global gross domestic product has risen 4-fold in real terms with the vast majority of growth occurring in developed and developing countries (A). Extraction of living biomass (e.g. crops, fisheries) to meet the demand for domestic consumption and for export is highest in developing countries and rising rapidly (B). Material consumption per capita within each country (from imports and domestic production), however, is highest in developed countries (C). Overall protection of Key Biodiversity Areas is rising, being highest within developed countries (D). Air pollution is highest in the least developed countries (E) while the challenges of non-point-source pollution, from use of fertilizers, are highest in developing countries (F). Data sources: A, E, F: www.data.worldbank.or; B, C : www.materialflows.net; D. www.keybiodiversityareas.org, www.protectedplanet.net

19. Governance has at many levels moved slowly to further and better incorporate into policies and incentives the values of nature’s contributions to people. However, around the globe, subsidies with harmful effects on the nature have persisted (well established) {2.1, 3, 5, 6.4}. Societal incorporation of the value of NCP includes shifts in governance even within private supply chains, for instance when civil society certifies and helps to reward desired practices or when states block access to markets for undesirable practices {2.1.7}. Successful local governance supported by recognition of local rights has often incorporated knowledge of how nature contributes to human wellbeing to motivate sus behaviors {2.1.8}. National agencies also have promoted land management strategies that are more sustainable, and introduced regulations, among other policy measures {2.1.9.2}, and have coordinated with other nations on global agreements to maintain NCP (2.1.10}. Economic instruments that may be harmful to nature include subsidies, financial transfers, subsidized credit, tax abatements, commodity and industrial goods prices that hide environmental and social costs, which favor unsustainable production and, as a consequence, can promote deforestation, overfishing, urban sprawl, and wasteful uses of water. In 2015, agricultural support potentially harmful to nature amounted to US$100 billion in countries within the Organization for Economic Cooperation and Development, yet some subsidy reforms to reduce unsustainable pesticide uses and adjust several other consequential development practices have been introduced {2.1.9.1, 6.4.5}. Fossil fuel subsidies of US$345 billion result in global costs of US$5 trillion when including the reduction of nature’s contributions (coal accounts for about half of these costs, petroleum for about one third and natural gas for about one tenth {2.1.9.1.2}). In fisheries, subsidies to increase and maintain capacity, which in turn often lead to degradation of nature, constitute perhaps a majority of the tens of US$ billions spent on supports {5.3.2.5}. 19 ADVANCE UNEDITED 000648

Figure 5. Contributions of indigenous peoples and local communities to the enhancement and maintenance of wild and domesticated biodiversity and landscapes. Indigenous and local knowledge systems are locally based, but regionally manifested and thus globally relevant. A wide diversity of practices actively and positively contribute to wild and domestic biodiversity through “accompanying” natural processes with anthropogenic assets (knowledge, practices and technology). Indigenous peoples often manage the land and coastal areas based on culturally specific world views, applying principles and indicators such as the health of the land, caring for the country and reciprocal responsibility. As lifestyles, values and external pressures change with globalization, however, unsustainable practices are becoming increasingly common in certain regions9. The central figure shows the global-scale overlaps of 1) land areas traditionally owned, managed10, used, or occupied by indigenous peoples, 2) formally designated protected areas and 3) remaining terrestrial areas with very low human intervention (areas with <4 Human Footprint Index11). Circles and intersections are proportional in area. Land areas traditionally owned, managed10, used, or occupied by indigenous peoples overlap with approx. 35 per cent of the area that is formally protected, and approximately 35 per cent of all remaining terrestrial areas with very low human intervention. Topics and pictures in the figure aim to illustrate, not represent, the types and diversity of the following contributions of indigenous peoples and local communities to biodiversity: (a) domestication and maintenance of locally adapted crop and fruit varieties (potatoes, Peru) and (b) animal breeds (rider and sheep, Kyrgyzstan) {2.2.4.4}; (c) creation of species-rich habitats and high ecosystem diversity in cultural landscapes (hay meadows, Central Europe) {2.2.4.1-2}; (d) identification of useful plants and their cultivation in high-diversity ecosystems (multi-species forest garden, Indonesia) {2.2.4.3}; (e)-(f) management and monitoring of wild species, habitats and landscapes for wildlife and for increased resilience (e) - Australia, (f) - Alaska) {2.2.4.5-6}; (g) restoration of degraded lands (Niger) {3.2.4}; (h) prevents deforestation in recognized indigenous territories (Amazon basin, Brazil) {2.2.4.7}; (i) offering alternative concepts of relations between humanity and nature (Northern Australia).

20. Much of the world’s terrestrial wild and domesticated biodiversity lies in areas traditionally managed, owned, used or occupied by indigenous peoples and local communities (well established) (Figure SPM. 5) {2.2.4}. In spite of efforts at all levels, and while nature on

9 In Stephen Garnett et al., “A spatial overview of the global importance of Indigenous lands for conservation”, Nature Sustainability, Vol. 1 (July 2018) pp. 369–374. 10 These data sources define land management here as the process of determining the use, development and care of land resources in a manner that fulfils material and non-material cultural needs, including livelihood activities such as hunting, fishing, gathering, resource harvesting, pastoralism, and small- scale agriculture and horticulture 11 Venter, O. et al. Global terrestrial Human Footprint maps for 1993 and 2009. Sci. Data 3, sdata201667 (2016)

20 ADVANCE000649 UNEDITED indigenous lands is declining less rapidly than elsewhere, still biodiversity and the knowledge associated with its management are deteriorating (established but incomplete) {2.2.4, 2.2.5.3}. Despite a long history of resource use and conservation conflicts related to colonial expansion as well as land appropriations for parks and other uses {3.2} (well established), indigenous peoples and local communities often have managed their landscapes and seascapes in ways that were adjusted to local conditions over generations. These often remain compatible with, or actively support, biodiversity conservation by “accompanying” natural processes with anthropogenic assets (established but incomplete) {2.2.4, 2.2.5.3.1} (Figure SPM.5). At least one quarter of the global land area is traditionally managed, owned, used or occupied by indigenous peoples12. These areas include approximately 35 per cent of the area that is formally protected, and approximately 35 per cent of all remaining terrestrial areas with very low human intervention (established but incomplete) {2.2.5.3.1}.Community-based conservation institutions and local governance regimes often have been found to be effective, at times even more effective than formally established protected areas, in avoiding habitat loss (established but incomplete), with several studies highlighting contributions by indigenous peoples and local communities in limiting deforestation, as well as initiatives showing synergies between these different mechanisms (well established) {6.3.2, 2.2.5.3}. In many regions, however, the lands of indigenous peoples are becoming islands of biological and cultural diversity surrounded by areas in which nature is further deteriorated (established but incomplete) {2.2.5.3}. Among the local indicators developed and used by indigenous peoples and local communities, 72 per cent show negative trends in nature that underpinned local livelihoods (established but incomplete) {2.2.5.3.2}. Major trends include falling availability of resources – due in part to legal and illegal territory reductions despite expanding indigenous populations – as well as: declining health and populations of culturally important species; new pests and invasive alien species as climate changes; losses in both natural forest habitats and grazing lands; and falling productivity in remnant ecosystems. More detailed global syntheses of trends in nature observed by indigenous peoples and local communities are hindered by the lack of institutions that gather data for these locations and then synthesize them within regional and global summaries {2.2.2}.

C. Goals for conserving and sustainably using nature and achieving sustainability cannot be met by current trajectories, and goals for 2030 and beyond may only be achieved through transformative13 changes across economic, social, political and technological factors 21. There has been good progress towards the components of 4 of the 20 Aichi Targets under the Strategic Plan for Biodiversity 2011–2020. Moderate progress has been achieved towards some components of another 7 targets, but for 6 targets poor progress has been made towards all components. There is insufficient information to assess progress towards some or all components of the remaining 3 targets (established but incomplete) {3.2}. Overall, the state of nature continues to decline (12 of 16 indicators show significantly worsening trends) (well established) {3.2} (Figure SPM.6). Greater progress has been made in implementing policy responses and actions to conserve biodiversity, by 2015, drivers with an impact on coral reefs and other ecosystems vulnerable to climate change; established but incomplete) {3.2}. Anthropogenic drivers of biodiversity loss, including habitat loss as a result of land use and sea use change (addressed by Aichi Target 5), unsustainable agriculture, aquaculture and forestry (Aichi Target 7), unsustainable fishing (Aichi Target 6), pollution (Aichi Target 8) and invasive alien species (Aichi Target 9), are increasing globally, despite national efforts to meet the Aichi Targets (established but incomplete) {3.2}.

12 These data sources define land management here as the process of determining the use, development and care of land resources in a manner that fulfils material and non-material cultural needs, including livelihood activities such as hunting, fishing, gathering, resource harvesting, pastoralism, and small-scale agriculture and horticulture. 13 A fundamental, system-wide reorganization across technological, economic and social factors, including paradigms, goals and values

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Figure 6. Summary of progress towards the Aichi Targets. Scores are based on quantitative analysis of indicators, a systematic review of the literature, fifth National Reports to the CBD, and available information on countries’ stated intentions to implement additional actions by 2020. Progress towards target elements is scored as “Good” (substantial positive trends at a global scale relating to most aspects of the element), “Moderate” (the overall global trend is positive but insubstantial or insufficient, or there may be substantial positive trends for some aspects of the element but little or no progress for others, or the trends are positive in some geographic regions but not in others), “Poor” (little or no progress towards the element or movement away from it; while there may be local, national or case-specific successes and positive trends for some aspects, the overall global trend shows little or negative progress) or “Unknown” (insufficient information to score progress).

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22. Conservation actions, including protected areas, efforts to manage unsustainable use and address illegal taking and trade of species, translocations and invasive species eradications, among others, have been successful in preventing the extinction of some species (established but incomplete). For example, conservation investment during the period between 1996 and 2008 reduced the extinction risk for mammals and birds in 109 countries by a median value of 29 per cent per country, while the rate of deterioration in extinction risk for birds, mammals and amphibians would have been at least 20 per cent higher without conservation action in recent decades. Similarly, it is likely that at least 6 species of ungulate (e.g. Arabian Oryx and Przewalski’s Horse) would now be extinct or surviving only in captivity without conservation measures. At least 107 highly threatened birds, mammals and reptiles (e.g. Island Fox and Seychelles Magpie-Robin) are estimated to have benefited from invasive mammal eradication on islands {3.2.2}. Although still few and spatially localized, such cases show that with prompt and appropriate action, it is possible to reduce human- induced extinction rates (established but incomplete) {2.2.5.2.4, 4}. There are, however, few other counterfactual studies assessing how trends in the state of nature or pressures upon nature would have been different in the absence of conservation efforts (well established) {3.2}. 23. As expressed in several of the Sustainable Development Goals, such as those on clean water, climate action, life below water and life on land (Sustainable Development Goals 6, 13, 14 and 15), biodiversity, ecosystem functions and services directly underpin their achievement (well stablished) {3.3.2.1}, nature also plays an important complex role in the Sustainable Development Goals related to poverty, hunger, health and well-being, sustainable cities (Sustainable Development Goals 1, 2, 3, 11) (established but incomplete) {3.3.2.2} (Figure SPM.7). Several examples illustrate these interdependencies between nature and the Sustainable Development Goals. For example, nature and its contributions may play an important role in reducing vulnerability to climate-related extreme events and other economic, social and environmental shocks and disasters, although anthropogenic assets are also involved (established but incomplete). Nature’s underpinning of specific health targets varies across regions and ecosystems, is influenced by anthropogenic assets and remains understudied. The relationship can be positive or negative, as in the case of certain aspects of biodiversity and infectious diseases (see paragraph 2). Nature directly underpins the livelihoods of indigenous peoples and local communities and the rural and urban poor, largely through direct consumption of, or income generated by, trade in material contributions such as food (see para 2 and 36) and energy (well established). Such contributions are generally underrepresented in poverty analyses (established but incomplete). Nature and its contributions are also relevant to goals for education, gender equality, inequalities and peace, justice and strong institutions (Sustainable Development Goals 4, 5, 10 and 16), but the current focus and wording of targets obscures or omits their relationship to nature (established but incomplete).

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Figure 7. Summary of recent status of, and trends in, aspects of nature and nature’s contributions to people that support progress towards achieving selected targets of the Sustainable Development Goals. Selected targets are those where current evidence and target wording enable assessment of the consequences for target achievement of trends in nature and nature’s contribution to people. Chapter 3 Section 3.3 provides a goal-level assessment of the evidence of links between nature and all Sustainable Development Goals. Scores for targets are based on systematic assessments of the literature and quantitative analysis of indicators where possible. None of the targets scored ‘Full support’ (that is, good status or substantial positive trends at a global scale); consequently, it was not included in the table. ‘Partial support’: the overall global status and trends are good or positive but insubstantial or insufficient, or there may be substantial positive trends for some relevant aspects but negative trends for others, or the trends are positive in some geographic regions but negative in others; ‘Poor/Declining support’: poor status or substantial negative trends at a global scale; “Uncertain relationship”: the relationship between nature and/or nature’s contributions to people and achieving the target ; “Unknown”: insufficient information to score the status and trends. 24. To meet the Sustainable Development Goals and achieve the 2050 Vision for Biodiversity, future targets are likely to be more effective if they take into account the impacts of climate change (well established) {3.2, 3.3}. For example, climate change is projected to greatly increase the number of species under threat, with fewer species expanding their ranges or experiencing more

24 ADVANCE000653 UNEDITED suitable climatic conditions than the number of species experiencing range contraction or less suitable conditions (established but incomplete) {4.2, 3.2}. The impacts of climate change on the effectiveness of protected areas calls for the re-evaluation of conservation objectives, but there are currently few protected areas whose objectives and management take climate change into account (established but incomplete). The Sustainable Development Goals for poverty, health, water and food security and sustainability targets are closely linked through the impacts of multiple direct drivers, including climate change, on biodiversity and ecosystem functions and services, nature and nature’s contributions to people and good quality of life. In a post-2020 global biodiversity framework, greater emphasis on the interactions between Sustainable Development Goal targets {4.6, 3.7} may provide a way forward for achieving multiple targets, as synergies (and trade-offs) can be considered. Future targets are expected to be more effective if they take into account impacts of climate change, including on biodiversity, and action to mitigate and adapt to climate change {4.6, 3.7}. 25. The adverse impacts of climate change on biodiversity are projected to increase with increasing warming, so limiting global warming to well below 2 degrees Celsius would have multiple co-benefits for nature, nature’s contributions to people and quality of life; however, some large-scale land-based mitigation measures to achieve that objective are projected to have significant impacts on biodiversity (established but incomplete) {4.2, 4.3, 4.4, 4.5}. All climate model trajectories show that limiting human-induced climate change to well below 2 degrees Celsius requires immediate, rapid reductions in greenhouse gas emissions or relying on substantial carbon dioxide removal from the atmosphere. However, the land areas required for bioenergy crops (with or without carbon capture and storage), afforestation and reforestation to achieve the targeted carbon uptake rates are projected to be very large {4.2.4.3., 4.5.3}. The biodiversity and environmental impact of large-scale afforestation and reforestation depends to a large degree on where these occur (prior vegetation cover, state of degradation), and the tree species planted (established but incomplete). Likewise, large bioenergy crop or afforested areas are expected to compete with areas set aside for conservation, including restoration, or agriculture (established but incomplete). Consequently, large- scale land-based mitigation measures may jeopardize the achievement of other Sustainable Development Goals that depend on land resources (well established) {4.5.3}. In contrast, the benefits of avoiding and reducing deforestation and promoting restoration can be significant for biodiversity (well established) and are expected to have co-benefits for local communities (established but incomplete) {4.2.4.3}. 26. Biodiversity and regulating NCP are projected to decline further in most scenarios of global changes over coming decades, while the supply and demand material NCP with current market value (food, feed, timber and bioenergy) are projected to increase (well established) {4.2, 4.3} (see for example Figure SPM.8). These changes arise from continued human population growth, increasing purchasing power, and increasing per capita consumption. The projected effects of climate change and land use change on terrestrial and freshwater biodiversity are mostly negative, increase with the degree of global warming and land use change and have an impact on marine biodiversity through increased eutrophication and deoxygenation of coastal waters (well established) {4.2.2.3.2, 4.2.3, 4.2.4}. For instance, a synthesis of many studies estimates the fraction of species at climate change related risk of extinction is 5% at 2°C warming, rising to 16% at 4.3°C warming {xx}. Climate change and business-as-usual fishing scenarios are expected to worsen the status of marine biodiversity (well established) {4.2.2.2, 4.2.2.3.1}. Climate change alone is projected to decrease ocean net primary production by between 3 and 10 per cent and fish biomass by between 3 and 25 per cent (in low and high warming scenarios, respectively) by the end of the century (established but incomplete) {4.2.2.2.1}. Whether or not the current removal of nearly 30 per cent of anthropogenic carbon dioxide emissions by terrestrial ecosystems continues into the future varies greatly from one scenario to the next and depends heavily on how climate change, atmospheric carbon dioxide and land use change interact. Important regulating contributions, such as coastal and soil protection, crop pollination and carbon storage, are projected to decline (established but incomplete) {4.2.4, 4.3.2.1}. In contrast, food, feed, timber and bioenergy production substantially increase in most scenarios (well established) {4.2.4, 4.3.2.2}. Scenarios that include substantial shifts towards sustainable management of resource exploitation and land use, market reform, globally equitable and moderate animal protein consumption and reduction of food waste and losses result in low loss or even recovery of biodiversity (well established) {4.2.2.3.1, 4.2.4.2, 4.3.2.2, 4.5.3}. 27. The magnitude of impacts on biodiversity and ecosystem functions and services and the differences between regions are less in scenarios that focus on global or regional sustainability (well established) (Figure SPM.8). Sustainability scenarios that explore moderate and equitable consumption result in substantially lower negative impacts on biodiversity and ecosystems due to food, feed and timber production (well established) {4.1.3, 4.2.4.2, 4.3.2, 4.5.3}. The general patterns at the global level – namely declines in biodiversity and regulating contributions versus increases in

25 ADVANCE UNEDITED 000654 the production of food, bioenergy and materials – are evident in nearly all subregions {4.2.2, 4.2.3, 4.2.4, 4.3.3}. For terrestrial systems, most studies indicate that South America, Africa and parts of Asia will be much more significantly affected than other regions, especially in scenarios that are not based on sustainability objectives (see Figure SPM.8 as an example). That is due in part to regional climate change differences and in part to the fact that scenarios generally foresee the largest land use conversions to crops or bioenergy in those regions {4.1.5, 947 4.2.4.2}. Regions such as North America and Europe are expected to have low conversion to crops and continued reforestation {4.1.5, 4.2.4.2}.

Figure 8. Projections of impacts of land use and climate change on biodiversity and nature’s material and regulating contributions to people between 2015 and 2050. This figure illustrates three main messages: i) impacts on biodiversity and regulating nature’s contributions to people (NCP) are the lowest in the Global Sustainability scenario in nearly all sub-regions, ii) regional differences in impacts are high in the regional competition and economic optimism scenario and iii) material NCP increase the most in the regional competition and economic optimism scenarios, but this comes at the expense of biodiversity and regulating NCP. Projected impacts are based on a subset of the Shared Socioeconomic Pathway (SSP) scenarios and greenhouse gas emissions trajectories (RCP) developed in support of Intergovernmental Panel on Climate Change assessments. This does not cover scenarios that include transformative change that are discussed in chapter 5. • The "Global Sustainability" scenario combines proactive environmental policy and sustainable production and consumption with low greenhouse gas emissions (SSP1, RCP2.6; top rows in each panel);

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• The "Regional Competition" scenario combines strong trade and other barriers and a growing gap between rich and poor with high emissions (SSP3, RCP6.0; middle rows); and • The "Economic optimism" scenario combines rapid economic growth and low environmental regulation with very high greenhouse emissions (SSP5, RCP8.5; bottom rows). Multiple models were used with each of the scenarios to generate the first rigorous global-scale model comparison estimating the impact on biodiversity (change in species richness across a wide range of terrestrial plant and animal species at regional scales; orange bars), material NCP (food, feed, timber and bioenergy; purple bars) and regulating NCP (nitrogen retention, soil protection, crop pollination, crop pest control and ecosystem carbon; white bars). The bars are the normalized means of multiple models and the whiskers indicate the standard errors. Global means of percent change in individual indicators can be found in Figure 4.2.14.

28. Climate change impacts also play a major role in regionally differentiated projections of biodiversity and ecosystem functioning in both marine and terrestrial systems. Novel communities, where species will co-occur in historically unknown combinations, are expected to emerge (established but incomplete) {4.2.1.2., 4.2.4.1} Substantial climate change-driven shifts of terrestrial biome boundaries, in particular in boreal, subpolar and polar regions and (semi-)arid environments, are projected for the coming decades; a warmer, drier climate will reduce productivity in many places (well established) {4.2.4.1}. In contrast, rising atmospheric carbon dioxide concentrations can be beneficial for net primary productivity and enhance woody vegetation cover, especially in semi-arid regions (established but incomplete) {4.2.4.1}. For marine systems, impacts are expected to be variable geographically with many fish populations are projected to move poleward due to ocean warming, so local species extinctions are expected in the tropics (well established) {4.2.2.2.1}. However, that does not necessarily imply an increase in biodiversity in the polar seas, because of the rapid rate of sea ice retreat and the enhanced ocean acidification of cold waters (established but incomplete) {4.2.2.2.4}. Along coastlines, the upsurge in extreme climatic events, sea level rise and coastal development is expected to cause increased fragmentation and loss of habitats. Coral reefs are projected to undergo more frequent extreme warming events, with less recovery time in between, declining by a further 70-90% at global warming of 1.5°C, and by more than 99% at 2°C causing massive bleaching episodes with high mortality rates (well established) {4.2.2.2.2}.

D. Nature can be conserved, restored and used sustainably while simultaneously meeting other global societal goals through urgent and concerted efforts fostering transformative change 29. The Sustainable Development Goals and the 2050 Vision for Biodiversity cannot be achieved without transformative change, the conditions for which can be put in place now (well established) {2, 3, 5, 6.2} (Figure SPM.9). Increasing awareness of connectivity in the environmental crisis and new norms regarding interactions between humans and nature would support that change (well established) {5.3, 5.4.3}. In the short term (before 2030), all decision makers could contribute to sustainability transformations, including through enhanced and improved implementation and enforcement of effective existing policy instruments and regulations, and the reform and removal of harmful existing policies and subsidies (well established). Additional measures are necessary to enable transformative change in the long term (up to 2050) to address the indirect drivers that are the root causes of nature deterioration (well established), including changes in social, economic and technological structures within and across nations {6.2, 6.3, 6.4, SPM Table 1}. 30. Sustainability transformations call for cross-sectoral thinking and approaches (Figure SPM.9). Sectoral policies and measures can be effective in particular contexts, but often fail to account for indirect, distant and cumulative impacts, which can have adverse effects, including exacerbating inequalities (well established). Cross-sectoral approaches, including landscape approaches, integrated watershed and coastal zone management, marine spatial planning, bioregional scale planning for energy and new urban planning paradigms, offer opportunities to reconcile multiple interests, values and forms of resource use, provided that these cross-sectoral approaches recognize trade-offs and uneven power relations between stakeholders (established but incomplete) {5.4.2, 5.4.3, 6.3, 6.4}. 31. Transformative change is facilitated by innovative governance approaches that incorporate existing approaches such as integrative, inclusive, informed and adaptive governance. While such approaches have been extensively practised and studied separately, it is increasingly recognized that together they can contribute to transformative change (established but incomplete) {6.2}. They help to address governance challenges that are common to many sectors

27 ADVANCE UNEDITED 000656 and policy domains and create conditions for implementing transformative change. Integrative approaches, such as mainstreaming across government sectors, are focused on the relationships between sectors and policies and help to ensure policy coherence and effectiveness (well established). Inclusive approaches help to reflect a plurality of values and ensure equity (established but incomplete), including through equitable sharing of benefits arising from their use and rights-based approaches (established but incomplete). Informed governance entails novel strategies for knowledge production and co-production that are inclusive of diverse values and knowledge systems (established but incomplete). Adaptive approaches, including learning from experience, monitoring and feedback loops, contribute to preparing for and managing the inevitable uncertainties and complexities associated with social and environmental changes (established but incomplete) {6.2, 5.4.2}.

Figure 9. Transformative change in global sustainability pathways. Collaborative implementation of priority governance interventions (levers) targeting key points of intervention (leverage points) could enable transformative change from current trends towards more sustainable ones. Most levers can be applied by a range of actors such as intergovernmental organizations, governments, non-governmental organizations, citizen and community groups, indigenous peoples and local communities, donor agencies, science and educational organizations, and the private sector, at multiple leverage points, depending on context. Implementing existing and new instruments through place-based governance interventions that are integrative, informed, inclusive and adaptive, using strategic policy mixes and learning from feedback, could enable global transformation.

32. The synthesis of evidence for key constituents of pathways to sustainability suggests a group of five overarching types of management interventions, or levers, and eight leverage points for transformative change (Figure SPM.9; D3 and D4 above) {5.4.1, 5.4.2}. The notion of levers and leverage points recognizes that complex global systems cannot be managed simply, but that in certain cases, specific interventions can be mutually reinforcing and generate larger-scale changes towards achieving shared goals (well established) (Table SPM.1). For example, changes in laws and policies can enable and underpin changes in resource management and consumption and, in turn, changes in individual and collective behaviour and habits can facilitate the implementation of policies and laws {5.4.3}. 33. Changes towards sustainable production and consumption and reducing and transforming residues and waste, particularly changes in consumption among the affluent, is recognized by some individuals and communities worldwide as central to sustainable development and reducing inequalities. While actual reductions have been limited, actions already being taken at different levels can be improved, coordinated and scaled up (well established). Those include, inter alia, introducing and improving standards and systems, including relevant regulations, aimed at internalizing the external costs of production, extraction and consumption (such as pricing wasteful or polluting practices, including through penalties), promoting resource efficiency, circular and other economic models, voluntary environmental and social certification of market chains and incentives for sustainable practices and innovation.

28 ADVANCE000657 UNEDITED Importantly, they also involve a change in the definition of what a good quality of life entails – decoupling the idea of a good and meaningful life from ever-increasing material consumption. All those approaches are more effective when they are mutually reinforcing. Actions that help to unleash, voluntarily, existing social values of responsibility in the form of individual, collective and organizational actions towards sustainability can have a powerful and lasting effect in shifting behaviour and cultivating stewardship as a normal social practice (established but incomplete) {5.4.1.2, 5.4.1.3, 6.4.2, 6.4.3}. 34. Expanding and effectively managing the current network of protected areas, including terrestrial, freshwater and marine areas, is important for safeguarding biodiversity (well established), particularly in the context of climate change. Conservation outcomes also depend on adaptive governance, strong societal engagement, effective and equitable benefit-sharing mechanisms, sustained funding, and monitoring and enforcement of rules (well established) {6.2, 5.4.2}. National Governments play a central role in supporting primary research and effective conservation and sustainable use of multi-functional landscape and seascape. The latter include planning ecologically representative networks of interconnected protected areas to cover key biodiversity areas and managing trade-offs between societal objectives that represent diverse worldviews and multiple values of nature (established but incomplete) {6.3.2.3, 6.3.3.3}. Safeguarding protected areas into the future also entails enhancing monitoring and enforcement systems, managing biodiversity-rich land and sea beyond protected areas, addressing property rights conflicts and protecting environmental legal frameworks against the pressure of powerful interest groups. In many areas, conservation depends on building capacity and enhancing stakeholder collaboration, involving non-profit groups as well as indigenous peoples and local communities to establish and manage Marine Protected Area’s and Marine Protected Area networks, and proactively using instruments such as landscape-scale and seascape-scale participatory scenarios and spatial planning, including transboundary conservation planning (well established) {5.3.2.3, 6.3.2.3, 6.3.3.3}. Implementation beyond protected areas includes combating wildlife and timber trafficking through effective enforcement and ensuring the legality and sustainability of trade in wildlife. Such actions include prioritizing wildlife trafficking in criminal justice systems, using community-based social marketing to reduce demand and implementing strong measures to combat corruption at all levels (established but incomplete) {6.3.2.3}. 35. Integrated landscape governance entails a mix of policies and instruments that together ensure nature conservation, ecological restoration and sustainable use, and sustainable production (including of food, materials and energy), sustainable forest management and infrastructure planning, and address the major drivers of biodiversity loss and nature deterioration (well established) {6.3.2, 6.3.6}. Policy mixes harmonized across sectors, levels of governance and jurisdictions can account for ecological and social differences across and beyond the landscape, build on existing forms of knowledge and governance and address trade-offs between tangible and non-tangible benefits in a transparent and equitable manner (established but incomplete). Managing landscapes sustainably can be better achieved through multifunctional, multi-use, multi- stakeholder and community-based approaches (well established), using a combination of measures and practices, including: (a) well managed and connected protected areas and other effective area based conservation measures; (b) reduced impact logging; forest certification; payment for ecosystem services, among other instruments and reduced emissions from deforestation and forest degradation; (c) support for ecological restoration; (d) effective monitoring including public access and participation as appropriate; (e) addressing of illegal activities; and (f) effective implementation of multilateral environmental agreements and other relevant international agreements by their parties; and (g) promoting sustainable biodiversity based food systems. (well established) {6.3.2.1, 6.3.2.3, 6.3.2, 6.3.2.4}. 36. Feeding the world in a sustainable manner, especially in the context of climate change and population growth, entails food systems that ensure adaptive capacity, minimize environmental impacts, eliminate hunger, and contribute to human health and animal welfare (established but incomplete) {5.3.2.1, 6.3.2.1}. Pathways to sustainable food systems entail land use planning and sustainable management of both the supply/producer and the demand/consumer sides of food systems (well established) {5.3.2.1, 6.3.2.1, 6.4}. Options for sustainable agricultural production are available and developing further, with some having more impacts on biodiversity and ecosystem functions than others {6.3.2.1}. These options include integrated pest and nutrient management, organic agriculture, agroecological practices, soil and water conservation practices, conservation agriculture, agroforestry, silvopastoral systems, irrigation management, small or patch systems, and practices to improve animal welfare. These practices could be enhanced through well-structured regulations, incentives and subsidies, the removal of distorting subsidies {2.3.5.2, 5.3.2.1, 5.4.2.1, 6.3.2}, and--at landscape scales--by integrated landscape planning

29 ADVANCE UNEDITED 000658 and watershed management. Ensuring the adaptive capacity of food production incorporates measures that conserve the diversity of genes, varieties, cultivars, breeds, landraces and species which also contribute to diversified, healthy and culturally-relevant nutrition. Some incentives and regulations may contribute to positive changes at both the production and consumption ends of supply chains, such as the creation, improvement and implementation of voluntary standards, certification and supply-chain agreements (e.g., the Soy Moratorium) and the reduction of harmful subsidies. Regulatory mechanisms could also address the risks of co-option and lobbying, where commercial or sectoral interests may work to maintain high levels of demand, monopolies and continued use of pesticides and chemical inputs {5.3.2.1}. Non-regulatory alternatives are also important and potentially include technical assistance--especially for small-holders—and appropriate economic incentive programs for example, some payment for ecosystem services programmes and other non- monetary instruments {5.4.2.1}. Options that address and engage other actors in food systems (including the public sector, civil society and consumers, grassroot movements) include participatory on-farm research, promotion of low-impact and healthy diets and localization of food systems. Such options could help reduce food waste, overconsumption, and demand for animal products from unsustainable production, which could have synergistic benefits for human health (established but incomplete) {5.3.2.1, 6.3.2.1}. 37. Ensuring sustainable food production from the oceans while protecting biodiversity entails policy action to apply sustainable ecosystem approaches to fisheries management, spatial planning (including the implementation and expansion of marine protected areas) and, more broadly, to address drivers such as climate change, pollution (well established) {5.3.2.5, 6.3.3}. Scenarios show that pathways to sustainable fisheries entail conserving, restoring and sustainably using marine ecosystems, rebuilding overfished stocks (including through targeted limits on catch or fishing efforts and moratoria), reducing pollution (including plastics), managing destructive extractive activities, eliminating harmful subsidies and illegal, unreported and unregulated fishing, adapting fisheries management to climate change impacts and reducing the environmental impact of aquaculture (well established) {4, 5.3.2.5, 6.3.3.3.2}. Marine protected areas have demonstrated success in both biodiversity conservation and improved local quality of life when managed effectively and can be further expanded through larger or more interconnected protected areas or new protected areas in currently under-represented regions and key biodiversity areas (established but incomplete) {5.3.2.5; 6.3.3.3.1}. Due to major pressures on coasts (including development, land reclamation and water pollution), implementing marine conservation outside protected areas, such as integrated coastal planning, is important for biodiversity conservation and sustainable use (well established) {6.3.3.3}. Other measures to expand multi-sectoral cooperation on coastal management include corporate social responsibility measures, standards for building and construction and eco-labelling (well established) {6.3.3.3.2, 6.3.3.3.4}. Additional tools could include economic instruments for financing conservation both non-market and market based, including for example payment for ecosystem services, biodiversity offset schemes, blue-carbon sequestration, cap-and-trade programmes, green bonds and trust funds and new legal instruments such as the proposed international legally binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (established but incomplete) {6.3.3.2, 6.3.3.1.3, 5.4.2.1, 5.4.1.7}. 38. Sustaining freshwater in the context of climate change, rising demand for water extraction and increased levels of pollution involves both cross-sectoral and sector-specific interventions that improve water use efficiency, increase storage, reduce sources of pollution, improve water quality and minimize disruption and foster restoration of natural habitats and flow regimes (well established) {6.3.4}. Promising interventions include practising integrated water resource management and landscape planning across scales; protecting wetland biodiversity areas; guiding and limiting the expansion of unsustainable agriculture and mining; slowing and reversing de-vegetation of catchments; and mainstreaming practices that reduce erosion, sedimentation and pollution run-off and minimize the negative impact of dams (well established) {6.3.4.6}. Sector-specific interventions include improved water-use efficiency techniques (including in agriculture, mining and energy), decentralized (for example, household-based) rainwater collection, integrated management (e.g., ‘conjunctive use’) of surface and groundwater, locally developed water conservation techniques and water pricing and incentive programmes (such as water accounts and payment for ecosystem services programmes) {6.3.4.2, 6.3.4.4}. With regard to watershed payment for ecosystem services programmes, their effectiveness and efficiency can be enhanced by acknowledging multiple values in their design, implementation and evaluation and setting up impact evaluation systems (established but incomplete) {6.3.4.4}. Investment in infrastructure, including green infrastructure, is important, especially in developing countries, but it can be undertaken in a way that takes into account ecological function and the careful blending of built and natural infrastructure {5.3.2.4, 6.3.4.5}. 30 ADVANCE000659 UNEDITED

39. Meeting the Sustainable Development Goals in cities and making cities resilient to climate change entails solutions that are sensitive to social, economic and ecological contexts. Integrated city-specific and landscape-level planning, nature-based solutions and built infrastructure as well as responsible production and consumption can all contribute to sustainable and equitable cities and make a significant contribution to the overall climate change adaptation and mitigation effort. Urban planning approaches to promote sustainability include encouraging compact communities, designing nature-sensitive road networks and creating low impact (from an emissions and land use perspective) infrastructure and transportation systems, including active, public and shared transport {5.3.2.6, 6.3.5}. However, given that most urban growth between now and 2030 will take place in the Global South, major sustainability challenges include addressing, creatively and inclusively, the lack of basic infrastructure (water, sanitation and mobility), the absence of spatial planning and limited governance capacity and financing mechanisms. Those challenges also offer opportunities for locally-developed innovation and experimentation, creating new economic opportunities. A combination of bottom-up and city-level efforts, by public and private, community and Government partnerships can be effective in promoting low-cost and locally-adapted solutions to maintaining and restoring biodiversity and ecosystem functions and services. Nature-based options include combining grey and green infrastructure (such as wetland and watershed restoration and green roofs), enhancing green spaces through restoration and expansion, promoting urban gardens, maintaining and designing for ecological connectivity and promoting accessibility for all (with benefits for human health). Additional solutions include disseminating new, low-cost technologies for decentralized wastewater treatment and energy production and creating incentives to reduce over-consumption {6.3.5}. Integrating cross-sectoral planning at the local and landscape and regional levels is important, as is involving diverse stakeholders (well established). Particularly important at the regional scale are policies and programmes that promote sustainability-minded collective action {5.4.1.3}, protect watersheds beyond city jurisdiction and ensure the connectivity of ecosystems and habitat (e.g., through green-belts). At the regional scale, cross-sectoral approaches to mitigating the impact of infrastructure and energy projects entail support for comprehensive environmental impact assessment and strategic environmental assessment of local and regional cumulative impacts {6.3.6.4, 6.3.6.6}. 40. Decision makers have a range of options and tools for improving the sustainability of economic and financial systems (well established) {6.4}. Achieving a sustainable economy involves making fundamental reforms to economic and financial systems and tackling poverty and inequality as vital parts of sustainability (well established) {6.4}. Governments could reform subsidies and taxes to support nature and its contributions to people, removing perverse incentives, and instead promoting diverse instruments such as payments linked to social and environmental metrics, as appropriate (established but incomplete) {6.4.1}. At the international level, options for reacting to the challenges generated by displacement of the impacts of unsustainable consumption and production on nature include both rethinking established instruments and developing new instruments to account for long distance impacts. Trade agreements and derivatives markets could be reformed to promote equity and prevent deterioration of nature, although there are uncertainties associated with implementation (established but incomplete) {6.4.4}. Alternative models and measures of economic welfare (such as inclusive wealth accounting, natural capital accounting and degrowth models) are increasingly considered as possible approaches to balancing economic growth and conservation of nature and its contributions and recognizing trade-offs, value pluralism and long-term goals (established but incomplete) {6.4.5}. Structural changes to economies are also key to shifting action over long time scales, including technological and social innovation regimes and investment frameworks that internalize environmental impacts such as externalities of economic activities, including by addressing environmental impacts in socially just and appropriate ways (well established) {5.4.1.7}. Although market-based policy instruments such as payments for ecosystem services, voluntary certification and biodiversity offsetting have increased in use, their effectiveness is mixed, and they are often contested; thus, they should be designed and applied carefully to avoid perverse effects in context (established but incomplete) {5.4.2.1, 6.3.2.2, 6.3.2.5, 6.3.6.3}. The widespread internalization of environmental impacts, including externalities associated with long-distance trade, is considered both an outcome and a constituent of global and national sustainable economies (well established) {5.4.1.6, 6.4}.

31 ADVANCE UNEDITED 000660 Table SPM.1. Approaches for sustainability and possible actions and pathways for achieving them. The appropriateness and relevance of different approaches vary according to place, system, decision- making process and scale. The list of actions and pathways in the following table is not exhaustive, but rather illustrative, using examples from the assessment report.

Possible actions and pathways to achieve transformative change

• Implementing cross-sectoral approaches that consider linkages and interconnections between sectoral policies and actions (e.g. IG, G, D, IPLC) {6.2} (D1) • Mainstreaming biodiversity within and across different sectors (e.g. agriculture, forestry, Enabling integrative fisheries, mining, tourism) (e.g. IG, G, NGO, IPLC, CG, P, D) {6.2, 6.3.5.2} (D5) governance to ensure • Encouraging integrated planning and management for sustainability at the landscape and policy coherence and seascape level (e.g. IG, G, D) {6.3.2} (D5) effectiveness • Incorporating environmental and socioeconomic impacts, including externalities into public and private decision-making (e.g. IG, G, P) {5.4.1.6} (B5) • Improving existing policy instruments and use them strategically and synergistically in smart policy mixes (e.g. IG, G) {6.2; 6.3.2; 6.3.3.3.1; 6.3.4.6; 6.3.5.1; 6.3.6.1} (D4)

• Recognizing and enabling the expression of different value systems and diverse interests while formulating and implementing policies and actions (e.g. IG, G, IPLCs, CG, NGO, SO, Promoting inclusive D) {6.2} (B5, D5) governance • Enabling the inclusion and participation of indigenous peoples and local communities, and approaches through women and girls, in environmental governance and recognizing and respecting the stakeholder knowledge, innovations and practices, institutions and values of indigenous peoples and local engagement and the communities, in accordance with national legislation {6.2; 6.2.4.4} (e.g. G, IPLC, P) (D5) inclusion of indigenous • Facilitating national recognition for land tenure, access and resource rights in accordance with peoples and local national legislation, and the application of free, prior and informed consent and fair and communities to ensure equitable benefit-sharing arising from their use (e.g. G, IPLC, P) (D5) equity and participation • Improving collaboration and participation among indigenous peoples and local communities, other relevant stakeholders, policymakers and scientists to generate novel ways of conceptualizing and achieving transformative change towards sustainability (e.g. G, IG, D, IPLC, CG, SO) (D5) • Improving documentation of nature (e.g biodiversity and other inventories) and assessment of the multiple values of nature, including the valuation of natural capital by both private and public entities (e.g. SO, D, G, IG, P) {6.2} (D2) • Improving monitoring and enforcement of existing laws and policies through better Practicing informed documentation and information-sharing and regular, informed and adaptive governance for nature to ensure, as appropriate, transparent and enhanced results (e.g. IG, G, IPLC, P) and nature’s readjustments (D2) contributions to people Advancing knowledge co-production and including and recognizing different types of knowledge, including indigenous and local knowledge and education, that enhances the legitimacy and effectiveness of environmental policies (e.g. SO, IG, G, D) (B6, D3)

• Enabling locally tailored choices about conservation, restoration, sustainable use and development connectivity that account for uncertainty in environmental conditions and scenarios of climate change (e.g. G, IPLC, CG, P) (D3) • Promoting public access to relevant information as appropriating decision-making and responsiveness to assessments by improving monitoring, including setting goals and objectives with multiple relevant stakeholders, often with competing interests (e.g. IG, G) Promoting adaptive • Promoting awareness raising activities around the principles of adaptive management, such as governance and short, medium and long-term goals towards international targets that are regularly reassessed management (e.g. IG, G, SO, CG, D) (D4) • Piloting and testing well-designed policy innovations that experiment with scales and models (e.g. G, D, SO, CG, IPLC) (D4) • Increasing the effectiveness of current and future international biodiversity targets and goals (such as those of the post-2020 global biodiversity framework and of the Sustainable Development Goals), (e.g. IG, G, D) {6.2; 6.4} Managing sustainable and multifunctional landscapes and seascapes and some of the actions they may entail Producing and • Promoting sustainable agricultural practices, such as good agricultural practices, agroecology, consuming food among others, multifunctional landscape planning and cross-sectoral integrated management sustainably {6.3.2}

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Possible actions and pathways to achieve transformative change

Approaches for Key actors: (IG=Intergovernmental organizations, G=Governments, NGOs =Non-governmental sustainability Organizations, CG=Citizen, community groups, IPLC = Indigenous peoples and local communities, D=Donor agencies, SO= Science and educational organizations, P=Private sector) • Conserving sustainable use of genetic resources for agricultural including diversity of genes, varieties, cultivars, breeds, landraces and species (e.g. SO, IPLC, CG) {6.3.2.1} (A6) • Promoting the use of biodiversity-friendly management practices in crop and livestock production, forestry, fisheries and aquaculture, including, where relevant, traditional management practices associated with Indigenous Peoples and Local communities {6.3.2.1} (D6) • Promoting areas of natural or semi-natural habitat within and around production systems, including those that are intensively managed – where necessary, restoring or reconnecting damaged or fragmented habitats. {6.3.2.1} (D6) • Improving food market transparency (e.g traceability of biodiversity impacts, transparency in supply chains) through tools such as labelling and sustainability certification. • Improving equity in food distribution and the localization of food systems, where appropriate and where beneficial to Nature/NCP • Reducing food wastes from production to consumption. • Promoting sustainable and healthy diets {6.3.2.1} (D6) • Promoting multifunctional, multi-use, multi-stakeholder and improving community-based approaches to forest governance and management to achieve sustainable forest management (e.g. IG, G, CG, IPLC, D, SO, P) {6.3.2.2} (A4) • Supporting reforestation and ecological restoration of degraded forest habitats with appropriate species, giving priority to native species (e.g. G, IPLC, CG, D, SO) {6.3.2.2} (A4) • Promoting and strengthening community-based management and governance, including Integrating multiple customary institutions and management systems, and co-management regimes involving uses for sustainable indigenous peoples and local communities (e.g. IG, G, CG, IPLC, D, SO, P) {6.3.2.2} (D5) forests • Reducing the negative impact of unsustainable logging by improving and implementing sustainable forest management, and addressing illegal logging (e.g. IG, G, NGO, P) {6.3.2.2} (D1) • Increasing efficiency in forest product use, including incentives for adding value to forest products (such as sustainability labelling or public procurement policies), as well as promoting intensive production in well managed forests so as to reduce pressures elsewhere (e.g. P, D, NGO) {6.3.2.2} (B1) • Supporting, expanding and promoting effectively managed and ecologically representative networks of well-connected protected areas and other multifunctional conservation areas, such as Other Effective Area-Based Conservation Measures (OECMs) (e.g. IG, G, IPLC, CG, D) {3.2.1, 6.3.2.3} (C1, D7) • Using extensive, proactive participatory landscape-scale spatial planning to prioritize land uses that balance and further safeguard nature and to protect and manage key biodiversity areas and other important sites for present and future biodiversity (e.g. IG, G, D) (B1, D7) • Managing and restoring biodiversity beyond protected areas, (e.g. IG, G, CG, IPLC, P, NGO, D) (B1) Conserving, effectively • Developing robust and inclusive decision-making processes that facilitate the positive managing and contributions of indigenous peoples and local communities to sustainability by incorporating sustainably using locally attuned management systems and indigenous and local knowledge (B6, D5) terrestrial landscapes • Improving and expanding the levels of financial support for conservation and sustainable use through a variety of innovative options, including through partnerships with the private sector {6.3.2.5} (D5, D7, D10) • Prioritizing land-based adaptation and mitigation measures that do not have negative impacts on biodiversity (e.g. reducing deforestation, restoring land and ecosystems, improving management of agricultural systems including soil carbon, and preventing degradation of wetlands and peatlands) (D8) • Monitor the effectiveness and impacts of protected areas and Other Effective Area-Based Conservation Measures (OECMs) conservation measures. • Promote shared and integrated ocean governance including biodiversity beyond national jurisdictions (e.g. IG, G, NGO, P, SO, D) {6.3.3.2} (D7) • Expand, connect and effectively manage marine protected areas networks (e.g. IG, G, Promoting sustainable IPLC, CG, D7) {5.3.2.3}, including protecting and managing priority marine key biodiversity governance and areas and other important sites for present and future biodiversity and increasing protection management of and connectivity seascapes, oceans and • marine systems Promoting the conservation and/or restoration of marine ecosystems: through rebuilding overfished stocks; preventing, deterring and eliminating illegal, unreported and unregulated fishing; encouraging ecosystem-based fisheries management; and controlling pollution through removal of derelict gear and addressing plastics (IG, G, P, IPLC, CG, SO, D) {SPM B1, D7}

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Possible actions and pathways to achieve transformative change

• Integrating water resource management and landscape planning, such as through increased protection and connectivity of freshwater ecosystems, improving transboundary water cooperation and management, addressing impacts of fragmentation due to dams and diversions, and incorporating regional analyses of the water cycle (e.g. IG, G, IPLC, CG, NGO, D, SO, P) {6.3.4.6}; {6.3.4.7} (B1) • Supporting inclusive water governance e.g. through developing and implementing invasive alien species management with relevant stakeholders (e.g. IG, G, IPLC, CG, NGO, D, SO, P) {6.3.4.3} (D4) • Supporting co-management regimes for collaborative water management and to foster Improving freshwater equity between water users (while maintaining a minimum ecological flow for the aquatic management, ecosystems), and engaging stakeholders and using transparency to minimize environmental, protection and economic and social conflicts (D4) connectivity • Mainstreaming practices that reduce soil erosion, sedimentation and pollution run-off (e.g. G, CG, P) {6.3.4.1} • Reducing the fragmentation of freshwater policies by coordinating international, national and local regulatory frameworks (e.g. G, SO) {6.3.4.7; 6.3.4.2} • Increasing water storage by facilitating groundwater recharge, wetlands protection and restoration, alternative storage techniques and restriction on groundwater abstraction. (e.g. G, CG, IPLC, P, D) {6.3.4.2} (B1, B3} • Promoting investment in water projects with clear sustainability criteria (e.g. G, P, D, SO) {6.3.4.5} (B1, B3) • Engaging sustainable urban planning (e.g. G, CG, IPLC, NGO, P) {6.3.5.1} (D9) • Encouraging densification for compact communities, including brownfield development and other strategies {6.3.5.3} • Including biodiversity protection, biodiversity offsetting, river basin protection, and ecological restoration in regional planning {6.3.5.1} • Safeguarding urban key biodiversity areas and ensuring that they do not become isolated Building sustainable through incompatible uses of surrounding land {6.3.5.2; SM 6.4.2} cities that address • Promoting biodiversity mainstreaming through stakeholder engagement and integrative critical needs while planning (e.g. G, NGO, CG, IPLC) {6.3.5.3}Encouraging alternative business models and conserving nature, incentives for urban conservation {6.3.2.1} restoring biodiversity, • Promoting sustainable production and consumption {6.3.6.4} maintaining and • enhancing ecosystem Promoting nature-based solutions (e.g. G, NGO, SO, P) {6.3.5.2} (D8, D9) services • Promoting, developing, safeguarding or retrofitting green and blue infrastructure (for water management) while improving grey (hard) infrastructure to address biodiversity outcomes, {6.3.5.2} • Promoting ecosystem-based adaptation within communities {3.7; 5.4.2.2} • Maintaining and designing for ecological connectivity within urban spaces, particularly with native species {6.3.5.2; 6.4.1} • Increasing urban green spaces and improving access to them{6.3.2}

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Possible actions and pathways to achieve transformative change

35 ADVANCE UNEDITED 000664 Appendix I

Confidence diagram and definitions

Figure X. The IPBES Conceptual Framework is a highly simplified model of the complex interactions between the natural world and human societies. The model identifies the main elements (boxes within the main panel delimited in grey), together with their interactions (arrows within the main panel), that are most relevant to the Platform’s goal. “Nature”, “nature’s contributions to people” and “good quality of life” (indicated as black headlines and defined in the box) are inclusive categories that were identified as meaningful and relevant to all stakeholders involved in IPBES during a participatory process, including various disciplines of the natural and social sciences and the humanities, as well of other knowledge systems, such as those of indigenous peoples and local communities. Text in green denotes the concepts of science; and text in blue denotes those of other knowledge systems. . Solid arrows in the main panel denote influence between elements; dotted arrows denote links that are acknowledged as important, but are not the main focus of the Platform. The thick coloured arrows below and to the right of the central panel indicate different scales of time and space, respectively. This conceptual framework was accepted by the Plenary in decision IPBES/2/4 and the Plenary took note of an update presented in IPBES/INF/24 in decision IPBES/5/1. Further details and examples of the concepts defined in the box can be found in the Glossary and in Chapter 1 “Nature” in the context of the Platform refers to the natural world with an emphasis on biodiversity. Within the context of science, it includes categories such as biodiversity, ecosystems, ecosystem functioning, evolution, the biosphere, humankind’s shared evolutionary heritage, and biocultural diversity. Within the context of other knowledge systems, it includes categories such as Mother Earth and systems of life. Other components of nature, such as deep aquifers, mineral and fossil reserves, and wind, solar, geothermal and wave power, are not the focus of the Platform. Nature contributes to societies through the provision of contributions to people. “Anthropogenic assets” refers to built-up infrastructure, health facilities, knowledge (including indigenous and local knowledge systems and technical or scientific knowledge, as well as formal and non-formal education), technology (both physical objects and procedures), and financial assets, among others. Anthropogenic assets have been highlighted to emphasize that a good life is achieved by a co-production of benefits between nature and societies. “Nature’s contributions to people” refers to all the benefits that humanity obtains from nature. Ecosystem goods and services, considered separately or in bundles, are included in this category. Within other knowledge systems, nature’s gifts and similar concepts refer to the benefits of nature from which people derive a good quality of life. Aspects of nature that can be negative to people (detriments), such as pests, pathogens or predators, are also included in this broad category.

36 ADVANCE000665 UNEDITED Nature’s regulating contributions to people: Functional and structural aspects of organisms and ecosystems that modify environmental conditions experienced by people, and/or sustain and/or regulate the generation of material and non-material contributions. These NCP include, for example, water purification, climate regulation, or soil erosion regulation Nature’s material contributions to people: Substances, objects or other material elements from nature that sustain people’s physical existence and infrastructure (i.e the basic physical and organizational structures and facilities, such as buildings, roads, power supplies) needed for the operation of a society or enterprise. They are typically physically consumed in the process of being experienced, such as when plants or animals are transformed into food, energy, or materials for shelter or ornamental purposes. Nature’s non-material contributions to people: Nature’s contribution to people’s subjective or psychological quality of life, individually and collectively. The entities that provide these intangible contributions can be physically consumed in the process (e.g. animals in recreational or ritual fishing or hunting) or not (e.g. individual trees or ecosystems as sources of inspiration). “Drivers of change” refers to all those external factors that affect nature, anthropogenic assets, nature’s contributions to people and a good quality of life. They include institutions and governance systems and other indirect drivers, and direct drivers (both natural and anthropogenic). “Institutions and governance systems and other indirect drivers” are the ways in which societies organize themselves, and the resulting influences on other components. They are the underlying causes of environmental change that are exogenous to the ecosystem in question. Because of their central role, influencing all aspects of human relationships with nature, these are key levers for decision- making. Institutions encompass all formal and informal interactions among stakeholders and social structures that determine how decisions are taken and implemented, how power is exercised, and how responsibilities are distributed. Institutions determine, to various degrees, the access to, and the control, allocation and distribution of components of nature and anthropogenic assets and their contributions to people. Examples of institutions are systems of property and access rights to land (e.g., public, common-pool, private), legislative arrangements, treaties, informal social norms and rules, including those emerging from indigenous and local knowledge systems, and international regimes such as agreements against stratospheric ozone depletion or the protection of endangered species of wild fauna and flora. Economic policies, including macroeconomic, fiscal, monetary or agricultural policies, play a significant role in influencing people’s decisions and behaviour and the way in which they relate to nature in the pursuit of benefits. Many drivers of human behaviour and preferences, however, which reflect different perspectives on a good quality of life, work largely outside the market system. “Direct drivers”, both natural and anthropogenic, affect nature directly. “Natural drivers” are those that are not the result of human activities and are beyond human control. These include earthquakes, volcanic eruptions and tsunamis, extreme weather or ocean-related events such as prolonged drought or cold periods, tropical cyclones and floods, the El Niño/La Niña Southern Oscillation and extreme tidal events. The direct anthropogenic drivers are those that are the result of human decisions, namely, of institutions and governance systems and other indirect drivers. Anthropogenic drivers include habitat conversion, e.g., degradation of land and aquatic habitats, deforestation and afforestation, exploitation of wild populations, climate change, pollution of soil, water and air and species introductions. Some of these drivers, such as pollution, can have negative impacts on nature; others, as in the case of habitat restoration, or the introduction of a natural enemy to combat invasive species, can have positive effects. “Good quality of life” is the achievement of a fulfilled human life, a notion which varies strongly across different societies and groups within societies. It is a context-dependent state of individuals and human groups, comprising access to food, water, energy and livelihood security, and also health, good social relationships and equity, security, cultural identity, and freedom of choice and action. From virtually all standpoints, a good quality of life is multidimensional, having material as well as immaterial and spiritual components. What a good quality of life entails, however, is highly dependent on place, time and culture, with different societies espousing different views of their relationships with nature and placing different levels of importance on collective versus individual rights, the material versus the spiritual domain, intrinsic versus instrumental values, and the present time versus the past or the future. The concept of human well-being used in many western societies and its variants, together with those of living in harmony with nature and living well in balance and harmony with Mother Earth, are examples of different perspectives on a good quality of life.

37 ADVANCE UNEDITED 000666 Appendix II

Communication of the degree of confidence In this assessment, the degree of confidence in each main finding is based on the quantity and quality of evidence and the level of agreement regarding that evidence (Figure SPM.A1). The evidence includes data, theory, models and expert judgement. Further details of the approach are documented in the note by the secretariat on the information on work related to the guide on the production of assessments (IPBES/6/INF/17). The summary terms to describe the evidence are: • Well established: comprehensive meta-analysis or other synthesis or multiple independent studies that agree. • Established but incomplete: general agreement although only a limited number of studies exist; no comprehensive synthesis and/or the studies that exist address the question imprecisely. • Unresolved: multiple independent studies exist but conclusions do not agree. • Inconclusive: limited evidence, recognizing major knowledge gaps. Figure SPM.A1 The four-box model for the qualitative communication of confidence. Confidence increases towards the top-right corner as suggested by the increasing strength of shading.

Source: IPBES, 2016.14

14 IPBES, Summary for policymakers of the assessment report of the Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services on pollinators, pollination and food production. S.G. Potts, V. L. Imperatriz-Fonseca, H. T. Ngo, J. C. Biesmeijer, T. D. Breeze, L. V. Dicks, L. A. Garibaldi, R. Hill, J. Settele, A. J. Vanbergen, M. A. Aizen, S. A. Cunningham, C. Eardley, B. M. Freitas, N. Gallai, P. G. Kevan, A. Kovács- Hostyánszki, P. K. Kwapong, J. Li, X. Li, D. J. Martins, G. Nates-Parra, J. S. Pettis, R. Rader, and B. F. Viana (eds.)., secretariat of the Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services, Bonn, Germany, 2016. Available from www.ipbes.net/sites/default/files/downloads/pdf/spm_deliverable_3a_pollination_20170222.pdf.

38 ADVANCE000667 UNEDITED

Appendix III

Knowledge gaps In the course of conducting this assessment key information needs were identified. See draft table Appendix 3 • Data, inventories and monitoring on Nature and drivers of change • Gaps on biomes and units of analysis • Taxonomic gaps • NCP-related gaps • Links between nature, nature’s contributions to people and drivers with respect to targets and goals • Integrated scenarios, and modelling studies • Potential policy approaches • Indigenous Peoples and local communities

39 000668

Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services (IPBES)

Media Release

Strict Embargo – Check Against Delivery Monday, 6 May 2019 1 p.m. (Paris Time - CEST) / 7 a.m. (US EDT) / noon (London-BST) (other time zones click here: http://bit.ly/2GWDJ3X)

• Summary for Policymakers, photos, ‘B-roll’, other media resources: http://bit.ly/IPBESReport • Media launch webcast live from #IPBES7 (Paris, France): bit.ly/IPBESWebcast starts at 1p.m. (Paris time – CEST) / 7 a.m. (US EDT) / noon (London – BST) • For interviews: [email protected] or French: +33 62520-0281 English: +1-416-878-8712 or +1- 415-290-5516 or +49- 176-2538-2223 (After 7 May: +49-152-3830-0667)

Nature’s Dangerous Decline ‘Unprecedented’ Species Extinction Rates ‘Accelerating’

Current global response insufficient; ‘Transformative changes’ needed to restore and protect nature; Opposition from vested interests can be overcome for public good

Most comprehensive assessment of its kind; 1,000,000 species threatened with extinction

Nature is declining globally at rates unprecedented in human history — and the rate of species extinctions is accelerating, with grave impacts on people around the world now likely, warns a landmark new report from the Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services (IPBES), the summary of which was approved at the 7th session of the IPBES Plenary, meeting last week (29 April – 4 May) in Paris.

“The overwhelming evidence of the IPBES Global Assessment, from a wide range of different fields of knowledge, presents an ominous picture,” said IPBES Chair, Sir Robert Watson. “The health of ecosystems on which we and all other species depend is deteriorating more rapidly than ever. We are eroding the very foundations of our economies, livelihoods, food security, health and quality of life worldwide.”

“The Report also tells us that it is not too late to make a difference, but only if we start now at every level from local to global,” he said. “Through ‘transformative change’, nature can still be conserved, restored and used sustainably – this is also key to meeting most other global goals. By transformative change, we mean a fundamental, system-wide reorganization across technological, economic and social factors, including paradigms, goals and values.”

“The member States of IPBES Plenary have now acknowledged that, by its very nature, transformative change can expect opposition from those with interests vested in the status quo, but also that such opposition can be overcome for the broader public good,” Watson said.

Page 1 of 12 000669

The IPBES Global Assessment Report on Biodiversity and Ecosystem Services is the most comprehensive ever completed. It is the first intergovernmental Report of its kind and builds on the landmark Millennium Ecosystem Assessment of 2005, introducing innovative ways of evaluating evidence.

Compiled by 145 expert authors from 50 countries over the past three years, with inputs from another 310 contributing authors, the Report assesses changes over the past five decades, providing a comprehensive picture of the relationship between economic development pathways and their impacts on nature. It also offers a range of possible scenarios for the coming decades.

Based on the systematic review of about 15,000 scientific and government sources, the Report also draws (for the first time ever at this scale) on indigenous and local knowledge, particularly addressing issues relevant to Indigenous Peoples and Local Communities.

“Biodiversity and nature’s contributions to people are our common heritage and humanity’s most important life-supporting ‘safety net’. But our safety net is stretched almost to breaking point,” said Prof. Sandra Díaz (Argentina), who co-chaired the Assessment with Prof. Josef Settele (Germany) and Prof. Eduardo S. Brondízio (Brazil and USA). “The diversity within species, between species and of ecosystems, as well as many fundamental contributions we derive from nature, are declining fast, although we still have the means to ensure a sustainable future for people and the planet.”

The Report finds that around 1 million animal and plant species are now threatened with extinction, many within decades, more than ever before in human history.

The average abundance of native species in most major land-based habitats has fallen by at least 20%, mostly since 1900. More than 40% of amphibian species, almost 33% of reef- forming corals and more than a third of all marine mammals are threatened. The picture is less clear for insect species, but available evidence supports a tentative estimate of 10% being threatened. At least 680 vertebrate species had been driven to extinction since the 16th century and more than 9% of all domesticated breeds of mammals used for food and agriculture had become extinct by 2016, with at least 1,000 more breeds still threatened.

“Ecosystems, species, wild populations, local varieties and breeds of domesticated plants and animals are shrinking, deteriorating or vanishing. The essential, interconnected web of life on Earth is getting smaller and increasingly frayed,” said Prof. Settele. “This loss is a direct result of human activity and constitutes a direct threat to human well-being in all regions of the world.”

To increase the policy-relevance of the Report, the assessment’s authors have ranked, for the first time at this scale and based on a thorough analysis of the available evidence, the five direct drivers of change in nature with the largest relative global impacts so far. These culprits are, in descending order: (1) changes in land and sea use; (2) direct exploitation of organisms; (3) climate change; (4) pollution and (5) invasive alien species.

The Report notes that, since 1980, greenhouse gas emissions have doubled, raising average global temperatures by at least 0.7 degrees Celsius – with climate change already impacting nature from the level of ecosystems to that of genetics – impacts expected to increase over the coming decades, in some cases surpassing the impact of land and sea use change and other drivers.

Despite progress to conserve nature and implement policies, the Report also finds that global goals for conserving and sustainably using nature and achieving sustainability cannot be met by current trajectories, and goals for 2030 and beyond may only be achieved through transformative changes across economic, social, political and technological factors. With good progress on components of only four of the 20 Aichi Biodiversity Targets, it is likely that most will be missed by the 2020 deadline. Current negative trends in biodiversity and ecosystems

Page 2 of 12 000670 will undermine progress towards 80% (35 out of 44) of the assessed targets of the Sustainable Development Goals, related to poverty, hunger, health, water, cities, climate, oceans and land (SDGs 1, 2, 3, 6, 11, 13, 14 and 15). Loss of biodiversity is therefore shown to be not only an environmental issue, but also a developmental, economic, security, social and moral issue as well.

“To better understand and, more importantly, to address the main causes of damage to biodiversity and nature’s contributions to people, we need to understand the history and global interconnection of complex demographic and economic indirect drivers of change, as well as the social values that underpin them,” said Prof. Brondízio. “Key indirect drivers include increased population and per capita consumption; technological innovation, which in some cases has lowered and in other cases increased the damage to nature; and, critically, issues of governance and accountability. A pattern that emerges is one of global interconnectivity and ‘telecoupling’ – with resource extraction and production often occurring in one part of the world to satisfy the needs of distant consumers in other regions.”

Other notable findings of the Report include1:

• Three-quarters of the land-based environment and about 66% of the marine environment have been significantly altered by human actions. On average these trends have been less severe or avoided in areas held or managed by Indigenous Peoples and Local Communities. • More than a third of the world’s land surface and nearly 75% of freshwater resources are now devoted to crop or livestock production. • The value of agricultural crop production has increased by about 300% since 1970, raw timber harvest has risen by 45% and approximately 60 billion tons of renewable and non- renewable resources are now extracted globally every year – having nearly doubled since 1980. • Land degradation has reduced the productivity of 23% of the global land surface, up to US$577 billion in annual global crops are at risk from pollinator loss and 100-300 million people are at increased risk of floods and hurricanes because of loss of coastal habitats and protection. • In 2015, 33% of marine fish stocks were being harvested at unsustainable levels; 60% were maximally sustainably fished, with just 7% harvested at levels lower than what can be sustainably fished. • Urban areas have more than doubled since 1992. • Plastic pollution has increased tenfold since 1980, 300-400 million tons of heavy metals, solvents, toxic sludge and other wastes from industrial facilities are dumped annually into the world’s waters, and fertilizers entering coastal ecosystems have produced more than 400 ocean ‘dead zones’, totalling more than 245,000 km2 (591-595) - a combined area greater than that of the United Kingdom. • Negative trends in nature will continue to 2050 and beyond in all of the policy scenarios explored in the Report, except those that include transformative change – due to the projected impacts of increasing land-use change, exploitation of organisms and climate change, although with significant differences between regions.

The Report also presents a wide range of illustrative actions for sustainability and pathways for achieving them across and between sectors such as agriculture, forestry, marine systems, freshwater systems, urban areas, energy, finance and many others. It highlights the importance of, among others, adopting integrated management and cross-sectoral approaches that take into account the trade-offs of food and energy production, infrastructure, freshwater and coastal management, and biodiversity conservation.

Also identified as a key element of more sustainable future policies is the evolution of global financial and economic systems to build a global sustainable economy, steering away from the current limited paradigm of economic growth.

1 More details on a wide range of other findings are included in the ‘Further Information’ section of this release below.

Page 3 of 12 000671

“IPBES presents the authoritative science, knowledge and the policy options to decision- makers for their consideration,” said IPBES Executive Secretary, Dr. Anne Larigauderie. “We thank the hundreds of experts, from around the world, who have volunteered their time and knowledge to help address the loss of species, ecosystems and genetic diversity – a truly global and generational threat to human well-being.”

- ENDS -

Page 4 of 12 000672 Notes to Editors:

For enquiries and interviews please contact:

The IPBES Media Team [email protected] www.ipbes.net For interviews: French: +33 62520-0281 English: +1-416-878-8712 or +1-415-290-5516 or +49- 176- 2538-2223 (After 7 May: +49-152-3830-0667)

IPBES has now released the Summary for Policymakers (SPM) of the Global Assessment report. The SPM presents the key messages and policy options, as approved by the IPBES Plenary. To access the SPM, photos, ‘B-roll’ and other media resources go to: bit.ly/IPBESReport The full six-chapter Report (including all data) is expected exceed 1,500 pages and will be published later this year.

Additional Resources:

For ease of reference, a number of issues highlighted in the Report are summarized in the ‘Further Information’ section that follows below, specifically on:

• Scale of loss of nature • Indigenous Peoples, Local Communities and nature • Global targets and policy scenarios • Policy tools, options and best practices • By the numbers: key statistics and facts

IPBES Partner Comments about the importance of the Report:

• Joyce Msuya, Acting Head, UN Environment • Audrey Azoulay, Director-General, UNESCO • José Graziano da Silva, Director-General, Food and Agriculture Organization of the United Nations • Achim Steiner, Administrator, United Nations Development Programme • Cristiana Paşca Palmer, Executive Secretary, Convention on Biological Diversity

About IPBES:

Often described as the “IPCC for biodiversity”, IPBES is an independent intergovernmental body comprising more than 130 member Governments. Established by Governments in 2012, it provides policymakers with objective scientific assessments about the state of knowledge regarding the planet’s biodiversity, ecosystems and the contributions they make to people, as well as the tools and methods to protect and sustainably use these vital natural assets. For more information about IPBES and its assessments visit www.ipbes.net

Video introduction to IPBES: www.youtube.com/watch?v=oOiGio7YU-M

Additional videos:

• IPBES Assessment of Land Degradation and Restoration (2018): www.youtube.com/watch?v=KCt7aai17Nk • IPBES Regional Assessments of Biodiversity and Ecosystem Services (2018): www.youtube.com/watch?v=kR0HeepbWCc • IPBES Assessment of Pollinators, Pollination and Food Production (2016): www.youtube.com/watch?v=YwkYbeiwK5A • IPBES Assessment of Scenarios and Models of Biodiversity (2016): www.youtube.com/watch?v=wZfcDmtGa9I

Follow IPBES on Social Media: twitter.com/@ipbes linkedin.com/company/ipbes youtube.com/ipbeschannel facebook.com/ipbes instagram.com/ipbes_

Page 5 of 12 000673 Further Information on Key Issues from the Report

Scale of Loss of Nature

Gains from societal and policy responses, while important, have not stopped massive losses.

Since 1970, trends in agricultural production, fish harvest, bioenergy production and harvest of materials have increased, in response to population growth, rising demand and technological development, this has come at a steep price, which has been unequally distributed within and across countries. Many other key indicators of nature’s contributions to people however, such as soil organic carbon and pollinator diversity, have declined, indicating that gains in material contributions are often not sustainable .

The pace of agricultural expansion into intact ecosystems has varied from country to country. Losses of intact ecosystems have occurred primarily in the tropics, home to the highest levels of biodiversity on the planet. For example, 100 million hectares of tropical forest were lost from 1980 to 2000, resulting mainly from cattle ranching in Latin America (about 42 million hectares) and plantations in South-East Asia (about 7.5 million hectares, of which 80% is for palm oil, used mostly in food, cosmetics, cleaning products and fuel) among others.

Since 1970 the global human population has more than doubled (from 3.7 to 7.6 billion), rising unevenly across countries and regions; and per capita gross domestic product is four times higher – with ever-more distant consumers shifting the environmental burden of consumption and production across regions.

The average abundance of native species in most major land-based habitats has fallen by at least 20%, mostly since 1900.

The numbers of invasive alien species per country have risen by about 70% since 1970, across the 21 countries with detailed records.

The distributions of almost half (47%) of land-based flightless mammals, for example, and almost a quarter of threatened birds, may already have been negatively affected by climate change.

Indigenous Peoples, Local Communities and Nature

At least a quarter of the global land area is traditionally owned, managed, used or occupied by Indigenous Peoples. These areas include approximately 35% of the area that is formally protected, and approximately 35% of all remaining terrestrial areas with very low human intervention.

Nature managed by Indigenous Peoples and Local Communities is under increasing pressure but is generally declining less rapidly than in other lands – although 72% of local indicators developed and used by Indigenous Peoples and Local Communities show the deterioration of nature that underpins local livelihoods.

The areas of the world projected to experience significant negative effects from global changes in climate, biodiversity, ecosystem functions and nature’s contributions to people are also areas in which large concentrations of Indigenous Peoples and many of the world’s poorest communities reside.

Regional and global scenarios currently lack and would benefit from an explicit consideration of the views, perspectives and rights of Indigenous Peoples and Local Communities, their knowledge and understanding of large regions and ecosystems, and their desired future development pathways. Recognition of the knowledge, innovations and practices, institutions and values of Indigenous Peoples and Local Communities and their inclusion and participation in environmental governance often enhances their quality of life, as well as nature

Page 6 of 12 000674 conservation, restoration and sustainable use. Their positive contributions to sustainability can be facilitated through national recognition of land tenure, access and resource rights in accordance with national legislation, the application of free, prior and informed consent, and improved collaboration, fair and equitable sharing of benefits arising from the use, and co- management arrangements with local communities.

Global Targets and Policy Scenarios

Past and ongoing rapid declines in biodiversity, ecosystem functions and many of nature’s contributions to people mean that most international societal and environmental goals, such as those embodied in the Aichi Biodiversity Targets and the 2030 Agenda for Sustainable Development will not be achieved based on current trajectories.

The authors of the Report examined six policy scenarios – very different ‘baskets’ of clustered policy options and approaches, including ‘Regional Competition’, ‘Business as Usual’ and ‘Global Sustainability’ - projecting the likely impacts on biodiversity and nature’s contributions to people of these pathways by 2050. They concluded that, except in scenarios that include transformative change, the negative trends in nature, ecosystem functions and in many of nature’s contributions to people will continue to 2050 and beyond due to the projected impacts of increasing land and sea use change, exploitation of organisms and climate change.

Policy Tools, Options and Exemplary Practices

Policy actions and societal initiatives are helping to raise awareness about the impact of consumption on nature, protecting local environments, promoting sustainable local economies and restoring degraded areas. Together with initiatives at various levels these have contributed to expanding and strengthening the current network of ecologically representative and well-connected protected area networks and other effective area-based conservation measures, the protection of watersheds and incentives and sanctions to reduce pollution .

The Report presents an illustrative list of possible actions and pathways for achieving them across locations, systems and scales, which will be most likely to support sustainability. Taking an integrated approach:

In agriculture, the Report emphasizes, among others: promoting good agricultural and agroecological practices; multifunctional landscape planning (which simultaneously provides food security, livelihood opportunities, maintenance of species and ecological functions) and cross-sectoral integrated management. It also points to the importance of deeper engagement of all actors throughout the food system (including producers, the public sector, civil society and consumers) and more integrated landscape and watershed management; conservation of the diversity of genes, varieties, cultivars, breeds, landraces and species; as well as approaches that empower consumers and producers through market transparency, improved distribution and localization (that revitalizes local economies), reformed supply chains and reduced food waste.

In marine systems, the Report highlights, among others: ecosystem-based approaches to fisheries management; spatial planning; effective quotas; marine protected areas; protecting and managing key marine biodiversity areas; reducing run- off pollution into oceans and working closely with producers and consumers.

In freshwater systems, policy options and actions include, among others: more inclusive water governance for collaborative water management and greater equity; better integration of water resource management and landscape planning across scales; promoting practices to reduce soil erosion, sedimentation and pollution run-off; increasing water storage; promoting investment in water projects with clear sustainability criteria; as well as addressing the fragmentation of many freshwater policies.

Page 7 of 12 000675 In urban areas, the Report highlights, among others: promotion of nature-based solutions; increasing access to urban services and a healthy urban environment for low-income communities; improving access to green spaces; sustainable production and consumption and ecological connectivity within urban spaces, particularly with native species.

Across all examples, the Report recognises the importance of including different value systems and diverse interests and worldviews in formulating policies and actions. This includes the full and effective participation of Indigenous Peoples and Local Communities in governance, the reform and development of incentive structures and ensuring that biodiversity considerations are prioritised across all key sector planning.

“We have already seen the first stirrings of actions and initiatives for transformative change, such as innovative policies by many countries, local authorities and businesses, but especially by young people worldwide,” said Sir Robert Watson. “From the young global shapers behind the #VoiceforthePlanet movement, to school strikes for climate, there is a groundswell of understanding that urgent action is needed if we are to secure anything approaching a sustainable future. The IPBES Global Assessment Report offers the best available expert evidence to help inform these decisions, policies and actions – and provides the scientific basis for the biodiversity framework and new decadal targets for biodiversity, to be decided in late 2020 in China, under the auspices of the UN Convention on Biological Diversity.”

Page 8 of 12 000676 By the Numbers – Key Statistics and Facts from the Report

General

• 75%: terrestrial environment “severely altered” to date by human actions (marine environments 66%2) • 47%: reduction in global indicators of ecosystem extent and condition against their estimated natural baselines, with many continuing to decline by at least 4% per decade • 28%: global land area held and/or managed by Indigenous Peoples , including >40% of formally protected areas and 37% of all remaining terrestrial areas with very low human intervention • +/-60 billion: tons of renewable and non-renewable resources extracted globally each year, up nearly 100% since 1980 • 15%: increase in global per capita consumption of materials since 1980 • >85%: of wetlands present in 1700 had been lost by 2000 – loss of wetlands is currently three times faster, in percentage terms, than forest loss.

Species, Populations and Varieties of Plants and Animals

• 8 million: total estimated number of animal and plant species on Earth (including 5.5 million insect species) • Tens to hundreds of times: the extent to which the current rate of global species extinction is higher compared to average over the last 10 million years, and the rate is accelerating • Up to 1 million: species threatened with extinction, many within decades • >500,000 (+/-9%): share of the world’s estimated 5.9 million terrestrial species with insufficient habitat for long term survival without habitat restoration • >40%: amphibian species threatened with extinction • Almost 33%: reef forming corals, sharks and shark relatives, and >33% marine mammals threatened with extinction • 25%: average proportion of species threatened with extinction across terrestrial, freshwater and marine vertebrate, invertebrate and plant groups that have been studied in sufficient detail • At least 680: vertebrate species driven to extinction by human actions since the 16th century • +/-10%: tentative estimate of proportion of insect species threatened with extinction • >20%: decline in average abundance of native species in most major terrestrial biomes, mostly since 1900 +/-560 (+/-10%): domesticated breeds of mammals were extinct by 2016, with at least 1,000 more threatened • 3.5%: domesticated breed of birds extinct by 2016 • 70%: increase since 1970 in numbers of invasive alien species across 21 countries with detailed records • 30%: reduction in global terrestrial habitat integrity caused by habitat loss and deterioration :• 47% proportion of terrestrial flightless mammals and 23% of threatened birds whose distributions may have been negatively impacted by climate change already • >6: species of ungulate (hoofed mammals) would likely be extinct or surviving only in captivity today without conservation measures

Food and Agriculture

• 300%: increase in food crop production since 1970 • 23%: land areas that have seen a reduction in productivity3 due to land degradation • >75%: global food crop types that rely on animal pollination • US$235 to US$577 billion: annual value of global crop output at risk due to pollinator loss • 5.6 gigatons: annual CO2 emissions sequestered in marine and terrestrial ecosystems – equivalent to 60% of global fossil fuel emission • +/-11%: world population that is undernourished • 100 million: hectares of agricultural expansion in the tropics from 1980 to 2000, mainly cattle ranching in Latin America (+/-42 million ha), and plantations in Southeast Asia (+/-7.5 million ha, of which 80% is oil palm), mostly at the expense of forests4

2 NB: Erratum from an earlier version which had incorrectly reflected 40%. 3 NB: Erratum from an earlier version which had incorrectly reflected “agricultural productivity” 4 NB: Erratum from an earlier version which had incorrectly reflected “half at the expense of intact tropical forests.

Page 9 of 12 000677 • 3%: increase in land transformation to agriculture between 1992 and 2015, half at the expense of intact tropical forests • >33%: world’s land surface (and +/-75% of freshwater resources) devoted to crop or livestock production • 12%: world’s ice-free land used for crop production • 25%: world’s ice-free land used for grazing (+/-70% of drylands) • +/-25%: greenhouse gas emissions caused by land clearing, crop production and fertilization, with animal-based food contributing 75% to that figure • +/-30%: global crop production and global food supply provided by small land holdings (<2 ha), using +/-25% of agricultural land, usually maintaining rich agrobiodiversity • $100 billion: estimated level of financial support in OECD countries (2015) to agriculture that is potentially harmful to the environment

Oceans and Fishing

• 33%: marine fish stocks in 2015 being harvested at unsustainable levels; 60% are maximally sustainably fished; 7% are underfished • >55%: ocean area covered by industrial fishing • 3-10%: projected decrease in ocean net primary production due to climate change alone by the end of the century • 3-25%: projected decrease in fish biomass by the end of the century in low and high climate warming scenarios, respectively • >90%: proportion of the global commercial fishers accounted for by small scale fisheries (over 30 million people) – representing nearly 50% of global fish catch • Up to 33%: estimated share in 2011 of world’s reported fish catch that is illegal, unreported or unregulated • >10%: decrease per decade in the extent of seagrass meadows from 1970-2000 • +/-50%: live coral cover of reefs lost since 1870s • 100-300 million: people in coastal areas at increased risk due to loss of coastal habitat protection • 400: low oxygen (hypoxic) coastal ecosystem ‘dead zones’ caused by fertilizers, affecting >245,000 km2 • 29%: average reduction in the extinction risk for mammals and birds in 109 countries thanks to conservation investments from 1996 to 2008; the extinction risk of birds, mammals and amphibians would have been at least 20% greater without conservation action in recent decade • >107: highly threatened birds, mammals and reptiles estimated to have benefitted from the eradication of invasive mammals on islands

Forests

• 45%: increase in raw timber production since 1970 (4 billion cubic meters in 2017) • +/-13 million: forestry industry jobs • 50%: agricultural expansion that occurred at the expense of forests • 50%: decrease in net rate of forest loss since the 1990s (excluding those managed for timber or agricultural extraction) • 68%: global forest area today compared with the estimated pre-industrial level • 7%: reduction of intact forests (>500 sq. km with no human pressure) from 2000-2013 in developed and developing countries • 290 million ha (+/-6%): native forest cover lost from 1990-2015 due to clearing and wood harvesting • 110 million ha: rise in the area of planted forests from 1990-2015 • 10-15%: global timber supplies provided by illegal forestry (up to 50% in some areas) • >2 billion: people who rely on wood fuel to meet their primary energy needs

Mining and Energy

• <1%: total land used for mining, but the industry has significant negative impacts on biodiversity, emissions, water quality and human health • +/-17,000: large-scale mining sites (in 171 countries), mostly managed by 616 international corporations • +/-6,500: offshore oil and gas ocean mining installations ((in 53 countries) • US$345 billion: global subsidies for fossil fuels resulting in US$5 trillion in overall costs, including nature deterioration externalities; coal accounts for 52% of post-tax subsidies,

Page 10 of 12 000678 petroleum for +/-33% and natural gas for +/-10%

Urbanization, Development and Socioeconomic Issues

• >100%: growth of urban areas since 1992 • 25 million km: length of new paved roads foreseen by 2050, with 90% of construction in least developed and developing countries • +/-50,000: number of large dams (>15m height) ; +/-17 million reservoirs (>0.01 ha) • 105%: increase in global human population (from 3.7 to 7.6 billion) since 1970 unevenly across countries and regions • 50 times higher: per capita GDP in developed vs. least developed countries • >2,500: conflicts over fossil fuels, water, food and land currently occurring worldwide • >1,000: environmental activists and journalists killed between 2002 and 2013

Health

• 70%: proportion of cancer drugs that are natural or synthetic products inspired by nature • +/-4 billion: people who rely primarily on natural medicines • 17%: infectious diseases spread by animal vectors, causing >700,000 annual deaths • +/-821 million: people face food insecurity in Asia and Africa • 40%: of the global population lacks access to clean and safe drinking water • >80%: global wastewater discharged untreated into the environment • 300-400 million tons: heavy metals, solvents, toxic sludge, and other wastes from industrial facilities dumped annually into the world’s waters • 10 times: increase in plastic pollution since 1980

Climate Change

• 1 degree Celsius: average global temperature difference in 2017 compared to pre-industrial levels, rising +/-0.2 (+/-0.1) degrees Celsius per decade • >3 mm: annual average global sea level rise over the past two decades • 16-21 cm: rise in global average sea level since 1900 • 100% increase since 1980 in greenhouse gas emissions, raising average global temperature by at least 0.7 degree • 40%: rise in carbon footprint of tourism (to 4.5Gt of carbon dioxide) from 2009 to 2013 • 8%: of total greenhouse gas emissions are from transport and food consumption related to tourism • 5%: estimated fraction of species at risk of extinction from 2°C warming alone, rising to 16% at 4.3°C warming • Even for global warming of 1.5 to 2 degrees, the majority of terrestrial species ranges are projected to shrink profoundly.

Global Goals

• Most: Aichi Biodiversity Targets for 2020 likely to be missed • 22 of 44: assessed targets under the Sustainable Development Goals related to poverty, hunger, health, water, cities, climate, ocean and land are being undermined by substantial negative trends in nature and its contributions to people • 72%: of local indicators in nature developed and used by Indigenous Peoples and Local Communities that show negative trends • 4: number of Aichi Targets where good progress has been made on certain components, with moderate progress on some components of another 7 targets, poor progress on all components of 6 targets, and insufficient information to assess progress on some or all components of the remaining 3 targets

______

Page 11 of 12 000679

IPBES Partner Comments

“Nature makes human development possible but our relentless demand for the earth’s resources is accelerating extinction rates and devastating the world’s ecosystems. UN Environment is proud to support the Global Assessment Report produced by the Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services because it highlights the critical need to integrate biodiversity considerations in global decision-making on any sector or challenge, whether its water or agriculture, infrastructure or business.”

- Joyce Msuya, Acting Head, UN Environment

“Across cultures, humans inherently value nature. The magic of seeing fireflies flickering long into the night is immense. We draw energy and nutrients from nature. We find sources of food, medicine, livelihoods and innovation in nature. Our well-being fundamentally depends on nature. Our efforts to conserve biodiversity and ecosystems must be underpinned by the best science that humanity can produce. This is why the scientific evidence compiled in this IPBES Global Assessment is so important. It will help us build a stronger foundation for shaping the post 2020 global biodiversity framework: the ‘New Deal for Nature and People’; and for achieving the SDGs.”

- Achim Steiner, Administrator, United Nations Development Programme

“This essential report reminds each of us of the obvious truth: the present generations have the responsibility to bequeath to future generations a planet that is not irreversibly damaged by human activity. Our local, indigenous and scientific knowledge are proving that we have solutions and so no more excuses: we must live on earth differently. UNESCO is committed to promoting respect of the living and of its diversity, ecological solidarity with other living species, and to establish new, equitable and global links of partnership and intragenerational solidarity, for the perpetuation of humankind.”

- Audrey Azoulay, Director-General, UNESCO

“The IPBES' 2019 Global Assessment Report on Biodiversity and Ecosystem Services comes at a critical time for the planet and all its peoples. The report’s findings — and the years of diligent work by the many scientists who contributed— will offer a comprehensive view of the current conditions of global biodiversity. Healthy biodiversity is the essential infrastructure that supports all forms of life on earth, including human life. It also provides nature-based solutions on many of the most critical environmental, economic, and social challenges that we face as human society, including climate change, sustainable development, health, and water and food security. We are currently in the midst of preparing for the 2020 UN Biodiversity Conference, in China, which will mark the close of the Aichi Biodiversity Targets and set the course for a post 2020 ecologically focused sustainable development pathway to deliver multiple benefits for people, the planet and our global economy. The IPBES report will serve as a fundamental baseline of where we are and where we need to go as a global community to inspire humanity to reach the 2050 Vision of the UN Biodiversity Convention “Living in harmony with nature”. I want to extendy m thanks and congratulations to the IPBES community for their hard work, immense contributions and continued partnership.”

- Cristiana Paşca Palmer, Executive Secretary, Convention on Biological Diversity

“The Global Assessment of biodiversity and ecosystem services adds a major element to the body of evidence for the importance of biodiversity to efforts to achieve the Zero Hunger objective and meet the Sustainable Development Goals. Together, assessments undertaken by IPBES, FAO, CBD and other organizations point to the urgent need for action to better conserve and sustainably use biodiversity and to the importance of cross-sectoral and multidisciplinary collaboration among decision-makers and other stakeholders at all levels.”

- José Graziano da Silva, Director-General, Food and Agriculture Organization of the United Nations

Page 12 of 12 TAB L

000680

This is.Exhibit "L" referred to in the Affidavit of Elizabeth Gabel, affirmed before me this ltauy ot Iuly, 20

A Commissioner fbr Oaths in and for the Province of Alberta

Barry Robinson Barrister & Solicitor National Energy Ofﬁce national Board de l’énergie

000681

National Energy Ofﬁce national Board de l’énergie

National Energy Board Report

Trans Mountain Expansion Project

May 2016 000682

National Energy Board Report

Trans Mountain Expansion Project

May 2016

OH-001-2014 000683

Permission to Reproduce Materials may be reproduced for personal, educational and/or non-profit activities, in part or in whole and by any means, without charge or further permission from the National Energy Board, provided that due diligence is exercised in ensuring the accuracy of the information reproduced; that the National Energy Board is identified as the source institution; and that the reproduction is not represented as an official version of the information reproduced, nor as having been made in affiliation with, or with the endorsement of the National Energy Board.

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National Energy Board Report – Rapport de l’Office national de l’énergie– Trans Mountain Pipeline ULC. Trans Mountain Pipeline ULC. Cat. No.: NE4-4/2016-3E No de cat. : NE4-4/2016-3F ISBN: 978-0-660-05383-7 ISBN : 978-0-660-05384-4

This title is published seperately in Le titre est publié séparément dans les deux both official languages. langues officielles.

Copies are available on request from: Pour obtenir des exemplaires sur demande : Library and Publication Services Bibliothèque et bureau des publications National Energy Board Office national de l’énergie 517 Tenth Avenue SW 517, Dixième Avenue S.-O. Calgary, Alberta T2R 0A8 Calgary (Alberta) T2R 0A8

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Copies are available for pick-up at the NEB office: Des exemplaires sont également disponibles à la Library bibliothèque de l’Office Second Floor Deuxième étage

Email: [email protected] Courriel : [email protected] www.neb-one.gc.ca Internet : www.neb-one.gc.ca

Printed in Canada Imprimé au Canada 000684

Prologue

Whenever I ride a ferry through the coastal waters of the Salish Sea between Victoria and Vancouver, or travel over the Coquihalla and across the prairies and forests of Alberta and B.C., the beauty of the environment that I am privileged to live in and share with so many others overwhelms me. I am humbled by the responsibility we all share to ensure the protection of the beauty of this country for future generations. As a member of the Panel reviewing the Trans Mountain Expansion Project (Project) application, I have listened to Aboriginal groups, individuals, governments, organizations and companies who have shared their concerns for the protection of the land and waters throughout Alberta and B.C., and to those who seek better lives for themselves, their families and their communities through the creation of jobs and economic development. When I reflect on the vast amount of evidence that has been placed in front of us, both in writing and orally, the implications of the decisions and recommendations to be made weigh heavily. As one of three Panel Members assessing this Project, I have considered what would occur if there was an incident resulting in an oil spill. Together with my fellow Panel Members, I have done all I can to protect the environment and keep people and communities safe. I have also considered the opportunities for Canadians from this Project. This National Energy Board Report (Report) contains the Board’s recommendation and decisions, and the reasons that support them. David Hamilton Panel Chair

Trans Mountain Expansion Project 2016 i 000685

We are the three Board Members – David Hamilton, Phil Davies and Alison Scott – assigned to oversee the review of this application on behalf of the National Energy Board (also referred to as the Board or the NEB). This has been a long and demanding process for everyone involved. We recognize the dedication that has been required to participate. We have heard, and understand, the concerns that some participants have expressed, and appreciate their efforts to provide meaningful input. We have heard from participants orally, and we have reviewed tens of thousands of pages of evidence, including answers to questions about evidence. During the course of this hearing, we heard from many of the 1,600 participants on what mattered to them. We heard their passionate and personal stories, many opposing and some supporting the Project. We have reviewed and considered the opinions about the Project’s impacts on the economy, the environment, Aboriginal traditional use of lands and waters, and the social fabric of communities and Canada. We heard that some people are fearful for the safety of their children and communities in the event of an oil spill. We heard about the deep-felt worry that the water will be contaminated, affecting drinking water, fish and animals. We heard concerns that people will be unable to use and enjoy the land and air because of possible spills and air emissions. We also heard from companies, unions, Aboriginal groups and organizations representing working people who said the Project would provide jobs and economic opportunities. We acknowledge the contribution of our expert staff of highly skilled professionals, including engineers, emergency response specialists, environmental specialists, economists, financial analysts, safety specialists, social scientists and legal counsel who assisted in the review and analysis of the application, including the proposed plans and systems. Finally, we acknowledge all that we have heard and read. The input we received from participants aided us greatly as we wrestled with the important question of whether this Project is in the public interest of Canadians. The following Report reflects our reasons and recommendations based on the evidentiary record and this input. Our recommendation report – a roadmap for readers The opening chapters of our Report provide an overview of the Project and our hearing process. The chapters contain a summary of our mandate and how we made our public interest determination, and then provides our Recommendation to the Governor in Council. The technical analysis and considerations start in Chapter 4. All of the evidence filed on the Board’s public registry for this hearing1 or provided orally by Aboriginal groups was assessed in detail by the Panel and the Board’s expert technical staff. This included all filed evidence, responses to information requests, oral traditional evidence and letters of comment. Not all of this evidence could be referenced in our Report but we carefully considered all of it. In instances where a number of intervenors made the same or similar points, we have not attempted to list all such intervenors in the Report. We have endeavoured to include cross-references within the Report chapters and sections when a topic is dealt with in more than one chapter or section. Where we use acronyms, these are defined when they first appear in each chapter.

1 All of the documents filed in this hearing (listed in chronological order under those that filed the document) can be found at the following location on our website (navigating from our homepage): View Regulatory Documents > Facilities > Oil > Trans Mountain Pipeline ULC > 2013 Applications > 2013-12-16 - Application for Trans Mountain Expansion Project (OH-001-2014).

ii National Energy Board 000686

Table of Contents

List of Figures ix List of Tables x List of Appendices x Summary of Recommendation ...... xi

CHAPTER 1 The Board’s review of the Trans Mountain Expansion Project 1 1.1 The Application 1 1.1.1 The Project ...... 1 1.1.2 Informing and engaging the public ...... 2 1.1.3 Identifying affected people and experts for involvement in the hearing 3 1.1.4 Providing financial assistance ...... 3 1.2 The hearing process ...... 4 1.2.1 Gathering oral Aboriginal traditional evidence 4 1.2.2 Responding to participants 5 1.2.3 Other relief requested and Board rulings ...... 5 1.2.4 Issues outside of the Board’s regulatory oversight 5 1.2.5 Modifying the hearing schedule 6 1.3 The Project application stage – codes, commitments and conditions 7 1.3.1 Safety ...... 8 1.3.2 Project-specific commitments and conditions ...... 8 1.3.3 Conditions 8 1.4 Risk overview ...... 10 1.4.1 Consideration of spill risks ...... 11

CHAPTER 2 Benefits, burdens and the NEB Recommendation 13 2.1 The Board’s mandate 13 2.2 Benefits and burdens of the Project ...... 14 2.2.1 Benefits ...... 14 2.2.2 Burdens ...... 16 2.3 Balancing of benefits and burdens 17 2.4 Recommendation and decisions ...... 18

CHAPTER 3 Regulating through the Project lifecycle 19 3.1 Condition compliance ...... 20 3.2 Construction phase 21 3.3 Leave to open ...... 21 3.4 Operations phase 21 3.5 Compliance verification and enforcement ...... 22 3.6 Regulating emergency response 22 3.7 Developing a safety culture 23

Trans Mountain Expansion Project 2016 iii 000687

CHAPTER 4 Public consultation 25 4.1 Trans Mountain’s Stakeholder Engagement Program ...... 25 4.1.1 Principles and goals of Trans Mountain’s Stakeholder Engagement Program 25 4.1.2 Public consultation activities ...... 25 4.1.3 Landowner Relations Program 26 4.2 Trans Mountain’s consultation with governments ...... 27

CHAPTER 5 Aboriginal matters 31 5.1 Overview 31 5.2 Trans Mountain’s consultation with Aboriginal Groups ...... 32 5.2.1 Trans Mountain’s Aboriginal Engagement Program Design ...... 32 5.2.2 Trans Mountain’s consultation activities with Aboriginal groups 33 5.2.3 Concerns raised about Trans Mountain’s consultation with Aboriginal groups . . . 34 5.3 The Government of Canada’s consultation process with Aboriginal groups 36 5.4 Participation of Aboriginal groups in the Board’s hearing process 37 5.5 Potential impacts on Aboriginal groups ...... 38 5.5.1 Trans Mountain’s assessment of impacts on Aboriginal groups ...... 38 5.5.2 Impacts raised by Aboriginal groups 39 5.6 Submissions related to section 35, Constitution Act, 1982 ...... 43

CHAPTER 6 Pipeline and facility integrity 53 6.1 New pipeline segments in Line 2 53 6.1.1 Design approach 53 6.1.2 Pipeline design ...... 54 6.1.3 Risk-based design ...... 58 6.1.4 Geotechnical design considerations ...... 62 6.1.5 Seismic design considerations 64 6.1.6 Strain-based design considerations ...... 68 6.1.7 Watercourse crossings ...... 69 6.1.8 Infrastructure crossings 71 6.1.9 Corrosion control ...... 73 6.1.10 Mainline valves and valve locations ...... 74 6.1.11 Control system and leak detection ...... 75 6.1.12 Construction ...... 77 6.2 New Westridge delivery pipelines 78 6.2.1 Overview ...... 78 6.2.2 Tunnel option 79 6.2.3 Streets option 81 6.3 New pump stations 82 6.3.1 Design Approach 82 6.3.2 Leak detection and containment ...... 84 6.3.3 Design temperature ...... 85 6.3.4 Construction ...... 86 6.4 Terminal expansions ...... 86 6.4.1 Design ...... 86 6.4.2 Secondary containment 88 6.4.3 Geotechnical design considerations ...... 95 6.5 Westridge Marine Terminal expansion ...... 97 6.5.1 Design approach 97 6.5.2 Geotechnical design 101

iv National Energy Board 000688

6.6 Transfer of active pipeline segments to Line 2 service 102 6.7 Reactivations ...... 103 6.7.1 Pipeline reactivations ...... 103 6.7.2 Facility reactivations 104 6.8 Line 1 operational changes ...... 104 6.8.1 Capacity ...... 104 6.8.2 Leak detection and slack line flow ...... 105 6.8.3 Risk assessment ...... 106 6.8.4 Mainline valves 106 6.9 Electrical matters 108 6.9.1 Power system and motor protection for facilities ...... 108 6.9.2 Battery system for uninterruptible power supply (UPS) ...... 109 6.10 Safety and Loss Management System ...... 109 6.10.1 Pipeline Integrity Management Program ...... 110 6.10.2 Natural Hazard Management Program ...... 110 6.10.3 Facility Integrity Management Program ...... 111

CHAPTER 7 Construction and operations 113 7.1 Safety, security and emergency management during construction ...... 114 7.1.1 Construction safety ...... 114 7.1.2 Construction security ...... 115 7.1.3 Emergency preparedness and response during construction ...... 116 7.2 Safety, security and emergency management during operations and maintenance . . . . . 116 7.3 Compliance verification ...... 118

CHAPTER 8 Environmental behaviour of spilled oil 121 8.1 Weathering processes and the fate and behaviour of spilled oil 121 8.1.1 Land ...... 121 8.1.2 Aquatic environments 122 8.2 The potential fate and behaviour of oil transported by the Project ...... 123 8.2.1 The products ...... 123 8.2.2 Weathering and aggregate formation ...... 124 8.2.3 Biodegradation ...... 125 8.2.4 Submerged and sunken oil ...... 125 8.2.5 The Gainford Study ...... 126 8.2.6 Spill response methods in the Gainford Study ...... 127 8.2.7 Government of Canada Research on the behavior, fate and transport of diluted bitumen ...... 128 8.2.8 Chemical characteristics of diluted bitumen ...... 129 8.2.9 Past spill events ...... 130 8.3 Modelling the potential fate and behaviour of diluted bitumen spills 131 8.3.1 Potential fate and behaviour of a diluted bitumen spill in a freshwater environment ...... 131 8.3.2 Potential fate and behaviour of a diluted bitumen spill in a marine environment . . 132 8.4 Additional research on the fate and behaviour of diluted bitumen ...... 135

Trans Mountain Expansion Project 2016 v 000689

CHAPTER 9 Emergency prevention, preparedness and response 139 9.1 Overview 139 9.2 Spill prevention ...... 140 9.2.1 Pipeline spill prevention ...... 140 9.2.2 Westridge Marine Terminal spill prevention ...... 142 9.3 Trans Mountain’s Emergency Management Program ...... 145 9.4 Emergency response 149 9.4.1 Emergency response capacity 149 9.4.2 Consultation and evacuation in emergency situations ...... 152 9.4.3 Firefighting capabilities at the Westridge Marine Terminal ...... 152 9.4.4 Spill response at the Westridge Marine Terminal ...... 153

CHAPTER 10 Environmental assessment 159 10.1 Overview 159 10.1.1 Scope of the environmental assessment under the CEAA 2012 160 10.1.2 Consideration of Project-related marine shipping ...... 160 10.1.3 Potential effects associated with upstream and downstream activities ...... 160 10.1.4 Responsibilities under other Acts 161 10.1.5 Environmental and socio-economic assessment methods 162 10.1.6 Follow-up program 165 10.1.7 Adaptive management ...... 165 10.1.8 Alternative means of carrying out the project ...... 166 10.2 Environmental effects ...... 166 10.2.1 Air emissions ...... 166 10.2.2 Greenhouse gas emissions 172 10.2.3 Surface water quality and quantity ...... 174 10.2.4 Groundwater quality and quantity ...... 177 10.2.5 Freshwater fish and fish habitat 179 10.2.6 Soil and soil productivity ...... 187 10.2.7 Rare plants and lichens, and vegetation communities of concern 190 10.2.8 Forests ...... 195 10.2.9 Wetlands ...... 197 10.2.10 Weeds ...... 200 10.2.11 Terrestrial wildlife and wildlife habitat 202 10.2.12 Parks and protected areas ...... 215 10.2.13 Marine sediment and water quality ...... 217 10.2.14 Marine fish and fish habitat ...... 219 10.2.15 Marine mammals ...... 222 10.2.16 Marine birds ...... 225 10.2.17 Accidents and malfunctions ...... 226

vi National Energy Board 000690

CHAPTER 11 People, communities and lands 237 11.1 Land requirements and routing 237 11.1.1 Land rights and acquisition 238 11.1.2 Alternative means of carrying out the Project ...... 239 11.2 Occupancy and resource use 246 11.2.1 Forestry ...... 246 11.2.2 Aggregate, mineral, and oil and gas resource activities 246 11.2.3 Trapping, hunting, and recreational fishing ...... 247 11.2.4 Use of designated recreational areas, protected areas and non-consumptive areas 247 11.2.5 Residential land use ...... 248 11.2.6 Westridge Marine Terminal (WMT) ...... 249 11.2.7 Agricultural land use ...... 250 11.2.8 Industrial and commercial use areas 250 11.2.9 Municipal land use and bylaws ...... 251 11.2.10 Navigation and navigation safety ...... 251 11.2.11 Visual and aesthetic resources ...... 252 11.3 Infrastructure and services ...... 255 11.3.1 Utilities and infrastructure ...... 255 11.3.2 Housing, accommodations, and work camps 257 11.3.3 Protective and social services ...... 257 11.3.4 First responder services ...... 258 11.3.5 Cumulative effects 258 11.4 Social and cultural well-being ...... 260 11.4.1 Change in population and demographics ...... 261 11.4.2 Changes in community life 261 11.5 Employment and economy ...... 262 11.6 Heritage resources ...... 265 11.7 Traditional land and marine resource use ...... 268 11.7.1 Trans Mountain’s assessment of potential effects on traditional land and marine resource use ...... 268 11.7.2 Scope and methodology ...... 268 11.7.3 Baseline conditions ...... 269 11.7.4 Project effects - pipeline ...... 269 11.7.5 Project effects – WMT ...... 271 11.7.6 TLRU and TMRU interests and concerns provided by Aboriginal groups . . . . . 274 11.8 Human health ...... 280 11.8.1 Pipelines and facilities ...... 280 11.8.2 Groundwater ...... 285 11.8.3 Community Health 286

Trans Mountain Expansion Project 2016 vii 000691

CHAPTER 12 Need for the Project and economic feasibility 293 12.1 Need for the Project ...... 294 12.1.1 Broader public interest ...... 294 12.1.2 Marketplace need ...... 294 12.2 Supply 296 12.3 Transportation ...... 298 12.3.1 Canadian crude oil export pipeline utilization ...... 298 12.3.2 Commercial arrangements 300 12.3.3 Alternatives (The use of rail instead of pipeline) 301 12.4 Markets 301 12.4.1 Primary markets ...... 302 12.4.2 Secondary markets ...... 304 12.5 Project financing ...... 305 12.6 Benefits and ostsc of the Project 306

CHAPTER 13 Financial matters 313 13.1 Introduction ...... 313 13.2 Business structure ...... 314 13.3 Financial assurances ...... 315 13.3.1 Cost of an oil spill ...... 315 13.3.2 Financial tools ...... 317

CHAPTER 14 Project-related increase in shipping activities 323 14.1 Description and extent of the existing, future, and Project-related shipping activities . . . 324 14.2 Regulatory framework ...... 327 14.2.1 Overview of existing regulatory framework for marine shipping ...... 327 14.2.2 Federal improvement initiatives 330 14.3 Effects assessment of increased marine shipping (routine operation of the tankers) . . . . 332 14.3.1 Environmental effects 333 14.3.2 Socio-economic effects 354 14.4 Spill prevention ...... 368 14.4.1 Safety measures ...... 368 14.4.2 Marine shipping risk analysis ...... 372 14.5 Emergency preparedness and response ...... 379 14.5.1 Current marine oil spill preparedness and response measures on the west coast ...... 379 14.5.2 Proposed improvements to marine oil spill preparedness and response measures on the west coast ...... 383 14.5.3 On-water recovery and response effectiveness ...... 385 14.6 Effects of spills ...... 389 14.6.1 Environmental effects assessment of spills ...... 389 14.6.2 Socio-economic effects 398 14.7 Financial responsibility, liability and insurance ...... 405 14.7.1 Marine Liability Act - Financial responsibility and compensation 405

viii National Energy Board 000692

List of Figures Figure 1: Project map 2 Figure 2: Bowtie diagram for assessing risk ...... 10 Figure 3: Risk as combination of probability and consequence 10 Figure 4: Lifecycle regulation ...... 20 Figure 5: Anticipated maximum operating head profile ...... 56 Figure 6: Risk assessment process 58 Figure 7: Location of faults ...... 66 Figure 8: Orientation of the two NPS 30 delivery pipelines, if the pipe segments are welded outside the tunnel 79 Figure 9: Orientation of the two NPS 30 delivery pipelines, if the pipe segments are welded inside the tunnel 79 Figure 10: Orientation of the three NPS 30 delivery pipelines, if the pipe segments are welded inside the tunnel 80 Figure 11: Edmonton Terminal plot plan ...... 89 Figure 12: Sumas Terminal plot plan ...... 90 Figure 13: Burnaby Terminal plot plan ...... 93 Figure 14: Westridge Marine Terminal layout 99 Figure 15: Oil weathering processes at sea (similar processes occur in a freshwater environment) ...... 123 Figure 16: Map of spill locations for the stochastic simulations ...... 132 Figure 17: Emergency Management Program elements 146 Figure 18: Aquatics Regional Study Area for Alberta ...... 180 Figure 19: Aquatics Regional Study Area for British Columbia 181 Figure 20: Caribou ranges crossed by the Project ...... 205 Figure 21: Grizzly bear Regional Study Area ...... 209 Figure 22: Western Canadian bitumen production 297 Figure 23 Northeast Asian oil demand 303 Figure 24: Trans Mountain corporate structure diagram ...... 314 Figure 25: Shipping lanes to and from the Westridge Marine Terminal ...... 326 Figure 26: Southern resident killer whale and North Pacific humpback whale critical habitat identified in the Regional Study Area 342 Figure 27: Possible locations for an accident involving a Project-related tanker ...... 373 Figure 28: Western Canada Marine Response Corporation areas of response ...... 380

Trans Mountain Expansion Project 2016 ix 000693

List of Tables Table 1: Conditions by subject matter and regulatory lifecycle stage ...... 9 Table 2: Summary of key benefits 15 Table 3: Summary of key residual burdens ...... 16 Table 4: Conditions by filing type ...... 20 Table 5: Summary of pump stations and motors for Line 1 and 2 after the Project 83 Table 6: Existing and new tank capacities ...... 87 Table 7: Dock and berth overview 98 Table 8: Total greenhouse gas emissions generated by Project construction and annual operations

for British Columbia and Alberta (in tonnes CO2e) ...... 173 Table 9: Aquatic species listed under Schedule 1 of the Species at Risk Act potentially found within the pipeline corridor...... 179 Table 10: Proposed further mitigation for SARA-listed plant species with critical habitat that overlaps the pipeline corridor 192 Table 11: Approximate area of marine fish habitat to be destroyed or permanently altered ...... 220 Table 12: Pipeline spill scenarios ...... 227 Table 13: Land area summary ...... 238 Table 14: Land ownership for proposed pipeline corridor ...... 239 Table 15: Alternate pipeline corridors ...... 243 Table 16: Total northeast Asia potential demand ...... 302 Table 17: Waterborne voyage distances 303 Table 18: Project cost estimates ...... 305 Table 19: Estimated cost of oil spills from the Project 315 Table 20: Drs. Gunton and Broadbent per barrel cost for oil spill cleanup and damage costs using different methodologies (2014$) 316 Table 21: Trans Mountain insurance ...... 317 Table 22: Trans Mountain’s summary of existing and future vessel movements at five locations in the Regional Study Area ...... 325 Table 23: Marine fish species listed under Schedule 1 of the Species at Risk Act potentially found within the Regional Study Area ...... 338 Table 24: Species listed under Schedule I of the Species at Risk Act potentially found within the Regional Study Area 341 Table 25: Marine bird species at risk potentially affected by Project-related increase in marine vessel traffic 352 Table 26: Summary of hypothetical marine transportation oil spill scenarios ...... 389

List of Appendices Appendix 1: List of Issues ...... 409 Appendix 2: Overview of work/activity authorized by individual legal instruments 411 Appendix 3: Conditions applied to legal instruments ...... 413 Appendix 4: Technical details about the Project ...... 495 Appendix 5: Hearing timeline (milestones, engagement, oral hearing days) ...... 497 Appendix 6: List of Intervenors ...... 499 Appendix 7: Overview of notices of motion and rulings on other requests ...... 505 Appendix 8: Sources of information and evidence from Aboriginal participants 511 Appendix 9 List of Aboriginal groups engaged by Trans Mountain ...... 515 Appendix 10: Factors and scope of the factors for the environmental assessment pursuant to the Canadian Environmental Assessment Act, 2012 ...... 519 Appendix 11: Study area boundaries for the environmental and socio-economic assessment ...... 523 Appendix 12: Table: criteria, ratings and definitions used in evaluating the likelihood of significant effects . . . 529 Appendix 13: Table: federally-listed wildlife species at risk potentially affected by the Project ...... 531

x National Energy Board 000694

Summary of Recommendation

Canadian public interest The National Energy Board (NEB or Board) finds that the Trans Mountain Expansion Project (Project) is in Canada’s public interest, and recommends the Governor in Council (GIC) approve the Project and direct the Board to issue the necessary Certificate of Public Convenience and Necessity (CPCN) and amended CPCNs. Should the GIC approve the Project, the associated regulatory instruments (Instruments) issued by the Board would come into effect. Should the GIC approve the Project, the Board considers it necessary that the CPCNs and Instruments be subject to 157 conditions.2 These conditions would address issues such as safety, protection of the environment and other considerations that are identified throughout this NEB Report. To set the context for its recommendation, the overarching consideration for the Board’s public interest determination was: can this Project be constructed, operated and maintained in a safe manner. The Board found the Project would meet this threshold. While this initial consideration was fundamental to the Board’s determination, a finding that a pipeline can be constructed, operated and maintained in a safe manner does not mean it is necessarily in the public interest - there are other considerations that the Board must weigh in coming to its public interest determination, as discussed below. However, the analysis would go no further if this fundamental question were to be answered in the negative; an unsafe pipeline can never be in the public interest. If constructed, the Project would approximately triple the capacity of the Trans Mountain Pipeline system in Western Canada. Together, the current and expanded pipeline would ship oil from Edmonton, Alberta, to Burnaby, British Columbia. At that point, oil would be loaded on to tankers at the Westridge Marine Terminal (WMT) for export to Washington State, California and Asia. A full description of the Project is provided in Chapter 1 of the NEB Report, but it is important to note that marine shipping beyond the WMT is not part of the Project and is not within the Board’s regulatory jurisdiction. Other governmental departments and agencies are charged with those responsibilities. Environmental assessment The Board completed a comprehensive environmental assessment of the Project in accordance with its authority under the National Energy Board Act (NEB Act) and the Canadian Environmental Assessment Act, 2012 (CEAA 2012). Although marine shipping is not regulated by the Board, as part of its overall public interest determination under the NEB Act, the Board considered the potential environmental and socio-economic effects of Project-related marine shipping. This included the potential effects of accidents or malfunctions.

2 Conditions are found in the NEB Report, Appendix 3.

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Over 85 per cent of the pipeline route for the Project parallels existing disturbances, including the right-of-way for Trans Mountain’s existing pipeline. This is important as it reduces the requirements for new right-of-way disturbance, minimizes the potential impacts of construction, and reduces effects on nearby residents and communities. While much of the route parallels existing disturbances, this is not always the case in urban areas. With the implementation of Trans Mountain’s environmental protection procedures and mitigation, and the Board’s recommended conditions, pursuant to its authority under the CEAA 2012, the Board finds that the Project is not likely to cause significant adverse environmental effects. However, effects from the operation of Project-related marine vessels would contribute to the total cumulative effects on the Southern resident killer whales, and would further impede the recovery of the Southern resident killer whale population, an endangered species that lives in the Salish Sea. Therefore, pursuant to its authority under the NEB Act, the Board finds that the operation of Project-related marine vessels is likely to result in significant adverse effects to the Southern resident killer whale, and that it is likely to result in significant adverse effects on Aboriginal cultural uses associated with these marine mammals. The Board is mindful that Project-related marine vessels would follow an established shipping route that currently has high volumes of vessel traffic and that, even if the Project does not proceed, the intensity of commercial and recreational traffic along the shipping route is predicted to increase in the future. The Board is encouraged by current initiatives being undertaken by Trans Mountain, Fisheries and Oceans Canada, and other organizations to support the recovery of the Southern resident killer whales. The Board also considered greenhouse gas emissions from the Project and from Project-related marine vessel traffic. The Board would impose a condition requiring Trans Mountain to develop an offset plan for the Project’s construction-related greenhouse gas emissions. The intent of the offset plan would be to confirm that there are no net greenhouse gas emissions from the Project construction. The Board also took into consideration the likelihood and potential consequence of a spill from the Project or from a Project-related tanker. The Board found that while the consequences of large spills could be high, the likelihood of such events occurring would be very low given the extent of the mitigation and safety measures that would be implemented. Aboriginal interests The Board’s process is designed to be thorough and accessible to Aboriginal groups so that they may make their concerns known to the Board on potential impacts on their interests, and have those concerns considered and addressed. The Board interprets its responsibilities under the NEB Act in a manner that is consistent with the Constitution Act, 1982, including section 35(1), which recognizes and affirms the existing Aboriginal and treaty rights of Aboriginal peoples. Having considered all the evidence submitted in this proceeding, the consultation undertaken with Aboriginal groups, the impacts on Aboriginal interests, the proposed mitigation measures, including conditions to minimize adverse impacts on Aboriginal interests, and Trans Mountain’s commitments to and Board-imposed requirements for ongoing consultation, the Board is satisfied that its recommendation and decisions with respect to the Project are consistent with section 35(1) of the Constitution Act, 1982. The Government of Canada has stated that there will be additional consultation following the issuance of this Report. Should the Project proceed, the Board would impose conditions requiring Trans Mountain to continue its consultation with potentially affected Aboriginal groups throughout the life of the Project. Those conditions would require Trans Mountain to report to the Board on its consultation with Aboriginal groups during construction and through the first five years of operations, among other things. This consultation would include the development of a number of plans related to environmental protection and emergency response programs. Weighing Project-related benefits and residual burdens The following two tables summarize the key benefits and residual burdens of the Project and Project-related marine shipping. Each table indicates whether a benefit or burden would apply locally (e.g., within the immediate vicinity of the Project such as a municipality along the route), regionally or nationally. The Board finds that the benefits associated with the Trans Mountain Expansion Project, taken as a whole, are considerable.

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Benefits Type of Report Brief description associated with: impact chapter(s)

The Board finds there would be aconsiderable benefit gained by providing Canadian shippers with more flexible and diverse markets, the Market Regional ability to manage risk associated with competing in multiple markets, the 12 diversification ability to manage development and operational risk, and a likely reduction National of discounts to Canadian crude.

The Board finds aconsiderable benefit in the form of jobs created across Canada: • Pipeline construction - 400-600 workers per spread Local Jobs • Tank construction - between 60 and 370 workers Regional 11 • Westridge Marine Terminal construction - 95 workers National • Over the first 20 years of operation – 443 jobs/year (313 in B.C., with remainder in AB)

The Board finds aconsiderable benefit would be gained from the increase in flexibility and optionality for those producers looking to get their Competition Regional product to markets, and that all western Canadian producers are likely 12 among pipelines to benefit from the Project in the longer term, through greater customer National choice and efficiencies gained through competition among pipelines.

Spending The Board finds there would be aconsiderable benefit to local and Local on pipeline regional economies from the direct spending on pipeline materials in 11 materials Canada and spending within the regions where the Project is located. Regional

The Board finds amodest benefit to local communities and the environment along the Project from the establishment of a Community Benefit Program, including: 10 Community • local emergency management capacity enhancements; Local Benefit Program • improvements to community parks and infrastructure; Regional 11 • support for events and educational programs; and • Environment Stewardship Program.

The Board finds there would be amodest benefit from the enhanced Enhanced marine spill response planning for and capacity to respond to spills from Local marine spill 14 vessels not associated with the Project (e.g., fuel spills from container response Regional ships and cruise ships).

The Board finds that amodest benefit from local economic and Capacity Local educational opportunities, and the development of capacity of local and 11 development Aboriginal individuals, communities and businesses. Regional Local Government The Board finds that direct Project expenditures will likely result in Regional 11 revenues considerable revenues to various levels of government. National

A number of concerns are identified in this NEB Report. Many of the issues underlying these concerns can be mitigated, and the Board assessed and weighed the likely success of potential mitigation options in reaching its recommendation. Other mitigation would be found in the commitments from Trans Mountain and through conditions that the Board would attach to the new CPCN, amended CPCNs and Instruments. Nevertheless, some impacts or residual burdens remain, and they must be considered and weighed in the Board’s recommendation under Part III of the NEB Act.

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Type of Report Burdens associated with: Brief description impact chapter(s) The Board finds that the operation of Project-related marine vessels would likely result in significant adverse effects to the Southern resident killer whale. Although the effects from Project-related marine vessels on Local Southern resident the Southern resident killer whale would be a small fraction of the total Regional 14 killer whales cumulative effects, the Board recognizes that the increase in Project- National related marine vessels would further contribute to cumulative effects that are already jeopardizing the recovery of the Southern resident killer whale. The Board finds that that the operation of Project-related marine vessels would likely result in significant adverse effects on Aboriginal cultural use Aboriginal cultural use associated with Southern resident killer whales. The Board acknowledges Local associated with Southern 14 concerns raised by a number of Aboriginal groups about the social and resident killer whales Regional cultural effects that would result from impacts of Project-related marine shipping on the Southern resident killer whale. The Board finds that greenhouse gas emissions from Project-related marine vessels would likely be significant. Given that there are no regulatory reporting thresholds or specific requirements for marine greenhouse gas emissions in Canada, and that the modelled emissions Marine greenhouse Regional would result in measurable per cent increases, the magnitude of these 14 gas emissions emissions is high. While the Board understands that emissions from National Project-related marine vessels would be a small percentage relative to Canadian greenhouse gas emissions, the Board finds the greenhouse gas emissions from Project-related marine vessels are likely to be significant. The Board finds that the Project may pose amodest burden on municipalities with respect to potentially constraining future plans for Municipal municipal development. There is the potential for reduced flexibility Local 11 development plans and/ or additional municipal time constraints with respect to planned or possible future municipal projects that may be impacted by the Project. The Board finds that there would bemodest burdens sustained by Aboriginal groups as their ability to use the lands, waters and resources for traditional purposes would be temporarily impacted by construction and routine maintenance activities, and that some opportunities for Aboriginal groups’ ability certain activities such as harvesting or accessing sites or areas of to use the land and water traditional use would be temporarily interrupted. For activities directly Local 11 during construction affected by the WMT, the Board finds that these effects would persist and operation for the operational life of the Project, as traditional activities would not occur within the expanded water lease boundaries. The Board finds that while the effects would be long term in duration, they would be reversible in the long term and would be confined to the water lease boundary for the WMT. The Board finds that there would bemodest burdens sustained by landowners and land users as their ability to use the land and water Landowners’ and land users’ would be affected by construction and routine maintenance activities ability to use the land and during operations. Construction and routine maintenance activities will Local 11 water during construction cause temporary, limited effects on recreational and commercial hunting, and operation fishing, agricultural practices and access to property, and will cause nuisance disturbance, such as noise. Project spill (i.e., from The Board finds that there is a very low probability of a Project spill 2 pipeline, tank terminals, (i.e., from pipeline, tank terminals, pump stations, or WMT that may Local 9 pump stations, or result in a significant effect (high consequence). The Board finds this level Regional 10 Westridge Marine Terminal) of risk to be acceptable. 11

The Board finds that there is a very low probability of a marine spill Local Spill from a Project-related 2 from a Project-related tanker that may result in a significant effect (high Regional tanker 14 consequence). The Board finds this level of risk to beacceptable .

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The task of balancing Project-related benefits versus residual burdens was difficult. Many of the benefits would be national or regional in scope, fewer strictly local. With respect to the residual burdens, the reverse would be true: local and regional communities would shoulder the larger share. In weighing the benefits and residual burdens, the Board placed significant weight on the economic benefits of the Project, many of which would be realized throughout Canada, particularly in British Columbia, Alberta, Ontario and Quebec. This national perspective was critical in the Board’s finding the Project would be in the Canadian public interest. Board-imposed conditions Trans Mountain formally committed to specific measures to mitigate Project-related risks and, should the GIC approve the Project, the Board would attach 157 conditions to the CPCNs and Instruments that cover a wide range of matters, including: • safety and integrity of the pipeline; • emergency preparedness and response; • protection of the environment; • ongoing consultation with those affected, including Aboriginal communities; • socio-economic matters; • affirmation ofommercial c support for the Project prior to construction; and • financial esponsibility.r Lifecycle regulation When Trans Mountain filed its Project application, it commenced an initial phase of the Project’s regulatory lifecycle. While the Board made a finding that Trans Mountain’s application was complete, the Project application was not at the detailed engineering phase that leads to the final design. This was of concern to a number of participants who felt that the Board lacked critical information on which to found its Recommendation. At this early stage in the regulatory lifecycle, the Board does not require final information about every technical detail. Rather, the information available to the Board must be sufficient to allow it to make a recommendation to the GIC that the Project is or is not in the public interest, and adequate to allow the Board to craft conditions that would attach to the CPCNs and Instruments should the GIC approve the Project. If the GIC directs the Board to issue the CPCNs, before Trans Mountain may begin construction, it would first have to satisfy the Board that it has complied with a number of specific conditions and, once constructed, Project operations could not commence until Trans Mountain met a number of additional conditions. After operations commence, Trans Mountain would be subject to the continuing regulatory oversight of the NEB throughout the lifecycle of the Project. Trans Mountain would be accountable for meeting the Board’s requirements that the Project be operated and maintained to ensure safety, and protect people, communities and the environment. Recommendation The Board finds that the Project is in Canada’s public interest, and recommends the GIC approve the Project and direct the Board to issue the necessary CPCN and amended CPCNs. Should the GIC approve the Project, the associated Instruments issued by the Board would come into effect.

D. Hamilton P. Davies A. Scott Presiding Member Member Member

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14.3 Effects assessment of increased marine shipping (routine operation of the tankers) This section focuses on the changes to the environmental and socio-economic setting caused by the routine operation of the Project-related marine vessels. The environmental effects of the spills from marine shipping are discussed in section 14.6.1. The Board assessed the potential environmental and socio-economic effects of the increased marine shipping resulting from the designated Project as part of its public interest determination under the NEB Act, and not under CEAA 2012. The Board followed an approach similar to the environmental assessment conducted under CEAA 2012 as described in Chapter 10, to the extent it was appropriate, to inform the Board’s public interest determination. When the Board established the List of Issues it would consider for this hearing, it included Issue 5 – The potential environmental and socio-economic effects of marine shipping activities that would result from the proposed Project, including the potential effects of accidents or malfunctions that may occur. The Board stated that this would be considered under the NEB Act.77 On 10 September 2013, the Board issued specific filing requirements78 related to the environmental and socio-economic effects assessment of increased marine shipping that Trans Mountain should consider in its application to the Board. In the Board’s overall public interest recommendation under the NEB Act, the Board took into consideration its findings on Issue 5. In order to determine whether the effects of marine shipping are likely to cause significant environmental effects, the Board considered the existing regulatory regime in the absence of any specific mitigation. Since marine shipping is beyond the Board’s regulatory authority, the Board does not have the ability to impose specific mitigation conditions to address environmental effects of Project-related marine shipping. The Board generally adopted the spatial and temporal boundaries for each valued component as defined by Trans Mountain, for both Project-related marine shipping effects and cumulative effects. The spatial boundaries (or study areas) are described in Appendix 11. The marine shipping lanes are defined to include the normal tanker transit patterns from the WMT to the 12 nautical mile limit, including transit within Burrard Inlet in the internationally designated marine shipping lanes. The time frame of the assessment includes the operation phase of the Project related marine vessels (i.e., the time during which increased marine vessel traffic operations are expected to occur, or more than 50 years). The Board considered any cumulative effects that are likely to result from Project-related shipping, in combination with environmental effects arising from other current or reasonably foreseeable marine vessel traffic, in the element-specific RSA. Living Oceans Society argued that Trans Mountain’s assessment of Project-related marine shipping’s effects (including effects from spills) on Southern resident killer whales falls short of the rigorous review required by SARA section 79(2), as it does not identify all adverse effects on the species and does not identify mitigation measures for those adverse effects. As a result, Living Oceans Society argued that the Board cannot meet its obligations under section 79(2) and should not recommend approval of the Project.

Views of the Board Chapter 10 describes the Board’s responsibilities under the SARA. The Board notes that Living Oceans Society’s argument does not address the Board’s 2 April 2014 Scoping Document, which stated that the designated project being assessed by the Board under CEAA 2012 consisted of the pipeline and facilities, including the Westridge Marine Terminal (WMT), or otherwise explain why or how section 79 of SARA applies to the Board’s consideration of the effects of Project-related marine shipping. As a result, the Board is not persuaded by Living Oceans Society’s argument that the Board’s obligations under section 79 of SARA apply to its consideration of the effects of Project- related marine shipping. Notwithstanding this, the Board notified the Ministers of Environment and Climate Change Canada, Fisheries and Oceans Canada and Parks Canada Agency of all species listed on Schedule 1 of the SARA (SARA-listed species) and their critical habitat that may be affected by Project-related marine shipping on 23 April 2014.

77 NEB letter of 2 April 2014, Trans Mountain Expansion Project, Factors and Scope of Factors for the Environmental Assessment, pursuant to CEAA, 2012 (Scoping Document). 78 This document was titled: Filing Requirements Related to the Potential Environmental and Socio-Economic Effects of Increased Marine Shipping Activities, Trans Mountain Expansion Project

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Further, the Board’s assessment of the environmental effects of Project-related marine shipping under the NEB Act considered: • adverse impacts of Project-related marine shipping on SARA-listed wildlife species and their critical habitat; • all reasonable alternatives to Project-related marine shipping that would reduce impact on SARA-listed species’ critical habitat; and • measures to avoid or lessen any adverse impacts consistent with applicable recovery strategies or action plans. The Board’s consideration of measures that it could impose to avoid or lessen adverse impacts was limited as it does not regulate, and Trans Mountain does not control, tankers once they leave the WMT, as noted above.

14.3.1 Environmental effects Marine air and greenhouse gas emissions Several participants raised concerns about the impacts from Project-related marine shipping on air quality. This section focuses on operational air and greenhouse gas emissions from tankers in transit, at anchor and underway. Air and greenhouse gas emissions from tankers at berth are discussed in Chapter 10. Trans Mountain conducted an air quality assessment to predict operational air and greenhouse gas emissions from Project-related marine shipping. It estimated air emissions (criteria air contaminants, volatile organic compounds, secondary particulate matter, ozone and visibility) and greenhouse gas emissions for the: • existing conditions reflecting all projects and activities in the area, including current marine vessels associated with Trans Mountain’s current operations; • Project-related shipping effects, including the proposed increase in vessel traffic associated with the Project; and • cumulative effects, including existing conditions, the Project-related shipping, and all reasonably foreseeable projects and activities in the area. Trans Mountain said that combustion emissions are generated by operating tankers, barges and associated tug escorts. Combustion emissions include emissions from tankers’ main and auxiliary engines and boilers. Trans Mountain said that combustion emissions are not associated with the barge itself but with the engine aboard the tugboat. Trans Mountain used the methodology adopted in Environment and Climate Change Canada’s (ECCC) 2010 National Marine inventory to estimate the combustion and fugitive emissions that will be generated from Project-related marine vessels. Trans Mountain said that fugitive emissions from vessels at berth are associated with product loading activities at the WMT. Fugitive emissions could also potentially escape through tanker vents during transit. Trans Mountain compared the total predicted annual combustion emissions from Project-related marine shipping to the existing totals in the RSA (defined in Appendix 11). It estimated an increase of 0.6 to 7.0 per cent in annual marine combustion emissions in the RSA as a result of Project-related marine shipping. Trans Mountain predicted that all modelled contaminant concentrations for the Application Case would be below applicable objectives, with the exception of the daily 1-hour 99th percentile for sulphur dioxide. Trans Mountain said that marine transportation associated with existing operations at the WMT is estimated to represent 0.98 per cent of marine greenhouse gas emissions in the RSA, 0.30 per cent of marine greenhouse gas emissions in B.C., and 0.17 per cent of marine greenhouse gas emissions in Canada. As a result of Project-related marine shipping, Trans Mountain estimates increases of approximately 6.9 per cent in marine greenhouse gas emissions in the RSA, 2.1 per cent in marine greenhouse gas emissions in B.C., and 1.2 per cent in marine greenhouse gas emissions in Canada. Trans Mountain estimated a total of 68,100 carbon dioxide equivalent annual marine greenhouse gas emissions from vessels in transit and at berth associated with Project expansion. Trans Mountain said that it did not consider mitigation measures in the marine greenhouse gas emissions assessment. It said that new energy efficiency standards were adopted by the International Maritime Organization in July 2011 and that these standards may improve greenhouse gas emissions from new

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vessels in the future. Trans Mountain said all Project-related tankers are required to adhere to federal standards that may reduce greenhouse gas emissions, including standards for bunker fuel.

Exclusion of boiler emissions ECCC said that Trans Mountain’s exclusion of tankers’ boiler emissions in its estimation of Project-related marine air emissions leads to multiple uncertainties regarding pollutants, such as nitrogen oxides and

particulate matter 2.5 microns or less in diameter (PM2.5). ECCC said that the boiler emissions were not included in the calculation of marine emissions on the assumption that boilers are used for preheating the heavy fuel oil, and that only distillate would be used after 2015 and the implication of the North American Emission Control Area. ECCC said that the Trans Mountain’s decision to exclude boiler emissions is

expected to result in a 20 per cent underestimation of Project marine-source PM2.5 emissions. ECCC said that main and auxiliary boilers are used for other reasons than pre-heating heavy fuel oil (e.g., ships’ machinery and various services). Trans Mountain disagreed with ECCC’s statement and said that neither main nor auxiliary boilers are required to operate when a tanker is at anchor or at berth. Port Metro Vancouver said that although it is unable to confirm whether both main and auxiliary boilers operate when a tanker is at anchor or at berth, it is of the view that boiler emissions should not be excluded from the assessment. Transport Canada said that beyond setting limits on overall air emissions from vessels, it does not have a regulatory interest in whether boilers operate when a tanker is at berth and at anchor. It noted that the North American Emission Control Area (under MARPOL) puts in place the most stringent air emissions requirements for tankers. Under these standards, all tankers must either burn fuel with 0.10 per cent sulphur content or use alternative technology that results in equivalent emissions. Transport Canada said that engines fitted onto tankers after 1 January 2016 will need to meet Tier III nitrogen oxide standards for a reduction of nitrogen oxide emissions of up to 80 per cent.

Anchorage and berth times and locations ECCC said that tankers at berth and at anchorage are a source of emissions within the Westridge Local Study Area (LSA). It expressed concerns regarding Trans Mountain’s assumptions on anchorage times and locations, and their impact on the air quality assessment. ECCC said that Trans Mountain’s estimates indicate that the total time a tanker spends in port, including the inbound trip, the outbound trip, and the time at anchorage and berth, is about 80 hours. It said that only one anchorage location, Indian Arm, was included in Trans Mountain’s assessment. ECCC said that it expects that, with the Project, the incidence of tankers using anchorages other than at Indian Arm will increase, as will the frequency at which the English Bay anchorages will be fully used. Trans Mountain said that it will maintain high level of berth use in order to best manage its future operations. It noted that in most cases, arriving vessels will proceed directly to their assigned terminal berth. If the assigned berth is not available, vessels may anchor at one of the four designated anchorages near the mouth of Indian Arm. Port Metro Vancouver said that when a vessel requires an anchorage, the local shipping agent would request Port Metro Vancouver operations to assign an anchorage. Port Metro Vancouver said that while its role is to direct tankers to an anchorage when one is required or requested, it is not involved in scheduling berths for tankers. It said that this activity is managed by individual operators of each marine terminal. Port Metro Vancouver said that it is satisfied with Trans Mountain’s estimate for the amount of time Project-related tankers may spend at anchor east of Second Narrows and its rationale that anchorage demand will be minimized by increasing berth use. Port Metro Vancouver added that, for the purpose of calculating air emissions from Project-related tankers, the anchorage use assessment is incomplete. It raised concerns that the assessment does not include the amount of time Project-related tankers may spend at locations west of Second Narrows.

Air quality impacts, monitoring and reporting ECCC said that it found several uncertainties in Trans Mountain’s photochemical modelling of the formation of secondary particulate matter and ozone. It conducted a scoping analysis and provided specific recommendations in this regard. Chapter 10 provides a discussion on this issue. In light of the uncertainties related to predicting marine source combustion emissions, ECCC recommended that Trans Mountain

334 National Energy Board 000702 develop an air quality monitoring, reporting, and mitigation plan in conjunction with the Lower Fraser Valley Air Quality Coordinating Committee. ECCC said that it expects emissions from Project-related tankers to increase concentrations of nitrogen dioxide and PM2.5 (with their associated health impacts) in the vicinity of the Tsleil Waututh Nation reserve. It said that although Trans Mountain predicted that pollutant concentrations will remain well within ambient air quality standards, the multiple uncertainties regarding those emissions reduce confidence in that conclusion. Therefore, ECCC recommended that Trans Mountain establish a program to monitor air contaminants, including nitrogen dioxide and PM2.5, at or adjacent to Tsleil-Waututh Nation’s Burrard Inlet No. 3 reserve. ECCC said that the monitoring program should verify predicted impacts under the full range of expected meteorological conditions. In response to ECCC’s comment on Board’s draft conditions, Trans Mountain said that it will consult with Aboriginal groups about the possibility of undertaking an ambient survey on the Tsleil-Waututh Nation’s reserve lands. Trans Mountain said that it is willing to consider and discuss the request with the interested parties, such as Tsleil-Waututh Nation and other groups, such as North Shore No Pipeline Expansion (NS NOPE), who also reside on the North Shore and expressed interest in ambient air quality measurements. Port Metro Vancouver said that in conducting its review, it would rely on the results of the environmental assessment carried out by the Board to the extent the results satisfy its standards and requirements. Port Metro Vancouver said that its air emissions management plans do not typically address emissions from tankers at anchor. Rather, these plans focus on measures the terminal can control and influence. It added that all tankers operating at the port are expected to comply with the relevant regulations in its Port Information Guide.

Mitigation Trans Mountain said that it does not own or operate the vessels associated with existing marine shipping operations, nor will it directly own or operate those associated with the Project. It said that its tanker acceptance criteria require tankers and barges to be of modern build, to be equipped and maintained in accordance with international and federal regulations, and to be operated using best practices. It added that regular vessel surveys and maintenance (including on propulsion and auxiliary machinery, boilers, and oil handling equipment) will ensure that design parameters and emission limits are met during vessel operations. Trans Mountain said that Project-related tankers would carry an International Air Pollution Prevention Certificate and must have onboard a Ship Energy Efficiency Management Plan. Trans Mountain said all marine vessels are required to adhere to the federal requirements including: • Canada’s Vessel Pollution and Dangerous Chemicals Regulations under the Canada Shipping Act, 2001; and • ECCC’s Sulphur in Diesel Fuel Regulations. Transport Canada said that the Vessel Pollution and Dangerous Chemicals Regulations under the Canada Shipping Act, 2001 requires a crude oil tanker’s master or owner to ensure the implementation of a volatile organic compounds management plan that meets the requirements of the International Convention for the Prevention of Pollution from Ships. Trans Mountain said that tugboats classified as large marine vessels will adhere to ECCC’s Sulphur in Diesel Fuel Regulations. As of June 2014, these vessels must meet marine diesel sulphur content requirements of less than 1,000 milligrams per kilogram (0.1 per cent). Trans Mountain said that it will take a phased approach in implementing programs and initiatives, such as the Energy Efficiency Design Index and Ship Energy Efficiency Management Plan, which, in its view, would help further reduce any nitrogen dioxide exceedances. It said that all new vessels will be required to meet all applicable local and international regulations.

Cumulative effects Trans Mountain said that the modelled particulate matter and sulphur dioxide concentrations for the Cumulative Case (including non-Project-related vessels) in the RSA decreased substantially relative to the Base and Application Cases. It associated this decrease with more stringent fuel sulphur regulations.

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Trans Mountain predicted that nitrogen dioxide concentrations for the Cumulative Case would decrease relative to the Base and Application Cases due to the more rigorous Tier II and Tier III standards for marine vessels built on 2 January 2011 or later, and 1 January 2016 or later, respectively. Trans Mountain said that by year 2030, more stringent marine vessel emissions requirements would be in place. As a result, sulphur dioxide and particulate matter emissions for tankers underway and at anchor are projected to decrease substantially. Trans Mountain said that it expects carbon monoxide and volatile organic compounds concentrations to increase by almost 40 per cent and 20 per cent respectively, from the Base and Application Cases due to the growth in marine traffic.

Views of the Board

Air emissions The Board finds that although Project-related increase in marine shipping is expected to increase emissions in the Regional Study Area (RSA), these emissions are expected to remain below applicable objectives. The Board recognizes that volatile organic compounds and carbon monoxide in the study area are expected to increase over time as a result of the growth in marine shipping, whereas other contaminants (e.g. nitrogen dioxide, sulphur dioxide, particulate matter) are expected to decrease due to more stringent regulations. With respect to Trans Mountain’s exclusion of boiler emissions in its assessment, the Board notes that neither Port Metro Vancouver nor Transport Canada were able to confirm whether both main and auxiliary boilers operate when a tanker is at berth or at anchor. The Board understands that Transport Canada sets limits on vessels’ air emissions, but also that it does not have a regulatory interest in whether boilers operate when a tanker is at berth or at anchor. Trans Mountain has committed to maintain a high level of berth utilization. In the Board’s view, it is difficult to estimate the amount of time spent at the anchorage locations and at berth, which, in turn, could affect any air quality assessment, as it depends on a number of factors. The Board notes that Port Metro Vancouver’s role is to direct vessels to an anchorage when one is required or requested, but is not involved in scheduling berths. The Board acknowledges that there is an existing regulatory regime governing air emissions from tankers underway or in transit. All Project related tankers and barges are required to follow international and federal regulations, and apply best practices during operations. These tankers would carry an International Air Pollution Prevention Certificate and be required to have onboard a volatile organic compound management plan. The Board realizes that more stringent emission requirements may be in place for marine vessels in the future, such as Tier III reductions in the Emission Control Areas. Trans Mountain’s implementation of programs and initiatives, such as the Energy Efficiency Design Index and Ship Energy Efficiency Management Plan, would help further reduce certain emissions. The Board finds that Trans Mountain’s predicted concentrations for both PM2.5 and nitrogen dioxide emissions at the Tsleil-Waututh Nation’s Burrard Inlet No. 3 reserve, as a result of Project-related marine shipping, are well below the applicable objectives. The Board acknowledges ECCC’s concern that nitrogen dioxide concentrations are generally high in the area due to other non-Project sources and that there are uncertainties with Trans Mountain’s prediction of marine-source combustion emissions. As mentioned in Chapter 10, section 10.2.1, the Board would impose Condition 52 requiring Trans Mountain to develop an air emissions management plan at the Westridge Marine Terminal for approval by the Board. Air monitoring conducted pursuant to this plan would verify predicted emissions levels, and exceedances of criteria established within the approved plan would require Trans Mountain to implement appropriate mitigation. Trans Mountain has committed to consult with the relevant Aboriginal groups about the possibility of undertaking an ambient survey on Tsleil-Waututh Nation’s reserve lands. Consequently, the Board is not persuaded that a program to monitor air contaminants at or adjacent to Tsleil-Waututh Nation’s reserve is warranted at this time. The Board’s views around photochemical modelling are discussed in Chapter 10.

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Taking into consideration that Trans Mountain and Project-related vessels will be required to adhere to all federal and international emission requirements to reduce emissions from Project-related marine shipping, and given that Transport Canada is the regulatory body that governs air emissions from the Project-related tankers, the Board finds that the residual effects from Project-related marine shipping is not likely to cause significant adverse effects. The Board finds that the increase in operational air emissions from the tankers is expected to be of long-term (expected to occur for the operational life of the tankers), reversible (emissions will reverse shortly once the tankers exit the RSA), low to moderate magnitude, and is expected to disperse in the RSA. In addition, the Board finds that the contribution from Project-related marine shipping to total cumulative effects on marine air emissions is not likely to be significant given that there is an existing regulatory regime that governs the air emissions from the tankers.

Greenhouse gas emissions The Board has focused its assessment on the direct greenhouse gas emissions generated from the Project-related vessels, as opposed to assessing the global climate effects of the greenhouse gas emissions. As described in Chapter 10, section 10.2.2 in the Board’s view, attempting to determine and assess the eventual global climate effects of greenhouse gas emissions generated by the Project-related vessels is not practical in terms of meaningfully informing an environmental assessment recommendation on this Project. The evidence indicates that the Project-related marine vessels are expected to result in an increase of approximately 6.9 per cent in marine greenhouse gas emissions in the RSA, 2.1 per cent in marine greenhouse gas emissions in B.C., and 1.2 per cent in marine greenhouse gas emissions in Canada. No mitigation measures were considered in Trans Mountain’s marine greenhouse gas emissions assessment and there are currently no regulatory reporting thresholds in Canada for marine greenhouse gas emissions. The Board notes that Project-related marine vessels are required to adhere to all federal and international emission requirements, including standards for bunker fuel. The Board recognizes that new energy efficiency standards were adopted by the International Maritime Organisation in July 2011, and that these standards may reduce greenhouse gas emissions from new vessels in the future. The Board finds that greenhouse gas emissions are a concern because of their long term accumulation in the atmosphere. The Board also finds that any incremental contribution from Project-related marine vessels would increase the burden at a global scale, regardless of how large or small the contribution. Given that the there are no regulatory reporting thresholds or specific requirements for marine greenhouse gas emissions in Canada, and that the modelled emissions would result in measurable per cent increases as noted above, the Board finds the magnitude of these emissions to be high. Consequently, the Board finds that greenhouse gas emissions from Project-related marine vessels are likely to be significant.

Marine fish and fish habitat Trans Mountain described the RSA as a productive marine environment, home to hundreds of different marine fish, including eight SARA-listed species or populations (Table 23). Trans Mountain said that no critical habitat has been identified for marine fish species at risk within the RSA; however, portions of the RSA have been classified by DFO as Important Areas for Pacific herring and Pacific salmon. Participants identified that marine resources within the RSA had over time been reduced in abundance (e.g., Pacific salmon).

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Table 23: Marine fish species listed under Schedule 1 of the Species at Risk Act potentially found within the Regional Study Area

Species SARA Status Basking Shark Endangered Bluntnose sixgill Special Concern Longspine thornyhead Special Concern Northern Abalone Endangered Olympia oyster Special Concern Tope Special Concern Yelloweye rockfish (outside and inside population) Special Concern Rougheye rockfish type I and type II Special Concern

Participants raised several issues related to effects of Project-related marine shipping on marine fish and fish habitat. In this section, the Board focuses on: • effects of Project-related vessel wake waves on intertidal habitat and marine fish; • sensory disturbance to marine fish from underwater noise; and • introduction of aquatic invasive species from Project-related marine vessel ballast water.

Effects of marine vessel wake waves on intertidal habitat and marine fish Trans Mountain indicated that wake waves produced from Project-related marine vessels could result in impacts to intertidal areas and the associated biota. Trans Mountain conducted predictive wake wave height modelling for Project-related marine vessels travelling at various speeds and depths. Trans Mountain concluded that Project related marine vessel wake wave heights at the shoreline would be well within the range of natural conditions and that wake waves generated from Project-related marine vessels are unlikely to result in any measurable changes to the biophysical characteristics of intertidal habitats. Trans Mountain said that marine organisms that occupy intertidal areas are regularly exposed to waves that are greater than the predicted wake wave heights and would have adapted to the physical forces imparted by Project-related marine vessel wake waves. As such, Trans Mountain said that the Project’s contribution to total cumulative effects would be low. The Board requested a species-specific assessment for all SARA-listed marine fish from Project related marine vessels, which included a request for species-specific mitigation. Trans Mountain identified that the frequency of occurrence within the LSA and the RSA for SARA listed marine fish ranged from patchy, uncommon, to rare (Appendix 11 provides a description of the spatial boundaries). For each species, Trans Mountain identified that effects from Project-related marine vessel wakes would be of negligible magnitude and recommended that no mitigation measure be implemented for effects of vessel wakes on marine fish and fish habitat. Numerous participants raised concerns related to wake waves impacting intertidal habitats and the associated biota. Metro Vancouver’s evidence highlighted various ways that shoreline invertebrates and marine fish could potentially be impacted from Project-related marine vessels, including higher invertebrate detachment rates, reduced growth and energy storage of native invertebrates, increased energy expenditure, dislocation of suitable habitat, and decreased feeding efficiency. The Tsawout First Nation Marine Use Study indicated that molting crabs are susceptible to vessel wakes. It said that when crabs molt, they change their shells and during this time they are very light, and get disturbed and damaged by sudden changes in wave action, such as vessel wakes. DFO said that potential effects on intertidal fish habitat from Project-related vessel wake are unlikely to differ substantially from current conditions in the RSA, and it considered the likelihood and magnitude of such occurrences to be of low risk to intertidal habitat and associated biota.

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A number of participants highlighted the importance of eelgrass beds as marine fish and invertebrate habitat, as well as providing beneficial ecosystem services. Tsawout First Nation said that eelgrass beds at James Island and Sidney Island are being lost due to all the wake waves from vessel traffic. As noted by Marine Use Study Respondents, it is fairly shallow in those areas and the waves are building up the sediment. The eelgrass then disappears and it affects all the crabs and other spawning fish that depend upon it. Trans Mountain said that although there are no mapped eelgrass beds within the Canadian portion of the LSA, any eelgrass beds that are present (i.e., within the eelgrass biobands) would be acclimated to both natural wave conditions and wake waves from existing vessel traffic. Therefore, it considers unlikely that any eelgrass beds would be adversely affected by the Project.

Sensory disturbance to marine fish from underwater noise Trans Mountain said that it did not conduct a detailed effects assessment on the potential impact of underwater noise produced by Project-related marine vessels on marine fish as there are no standard criteria or thresholds to assess these effects against and there is a lack of data and knowledge surrounding the effects of underwater noise on marine fish. Trans Mountain did acknowledge that underwater noise from Project-related marine vessels could potentially trigger behavioral responses by marine fish ranging from small temporary movements to large scale change displacements. However, Trans Mountain further stated that there is no evidence in the literature that vessel traffic will result in the large scale displacement of fish or invertebrate populations from foraging, spawning, rearing or migrations areas, or will otherwise affect their distribution or abundance. Trans Mountain said that its conclusion is supported by the existing overlap of areas of high shipping activity and Pacific herring and Pacific salmon migration areas, such as the Haro Strait and the Fraser and Columbia Rivers. Participants raised concerns over underwater noise impacting marine fish. Raincoast Conservation Foundation said that Trans Mountain failed to consider behavioral changes beyond large-scale displacements and that underwater noise produced from Project-related marine vessels may result in sub-lethal consequences, such as cardiovascular disturbances. It noted that the lack of inclusion of information regarding responses of fish to underwater noise could have served to minimize the potential Project-related effects. Ms. A.L. Schwartz commented that Pacific herring, as well as other species, respond negatively to shipping sounds. Ms. Schwartz further suggested that short-term behavioral changes can lead to long-term significant changes in populations, spawning locations and extents, and feeding grounds. DFO said that it would be difficult for Trans Mountain to conduct a detailed effects discussion on the potential effects of underwater noise on marine fish and invertebrates, given the limited information on species-specific behavioral responses to marine vessel noise and the absence of Canadian standards or thresholds established for assessing such impacts. It noted that the presence and magnitude of a residual effect from underwater noise generated by Project-related marine vessels, in addition to the existing underwater noise environment in the RSA, is uncertain. Introduction of aquatic invasive species from Project-related marine vessels ballast water Trans Mountain said that the release of ballast water in Canadian waters is regulated by the Ballast Water Control and Management Regulations pursuant to the Canada Shipping Act, 2001 Both Trans Mountain and DFO noted that compliance with this regulation will minimize the likelihood of aquatic invasive species being introduced during ballast water exchange. Participants raised concerns regarding the introduction of aquatic invasive species to Canadian waters through Project-related marine vessel ballast water. Cowichan Tribes said that no form of mitigation measures can eliminate the risk of aquatic invasive species introductions. It further recommended that ballast water discharge should include mandatory treatment of ballast water to standards recommended by the IMO.

Views of the Board The Board recognises the concerns presented by participants in regards to potential impacts to shorelines and associated biota from Project related marine vessel wake waves. The Board notes that evidence provided by some Intervenors, such as Metro Vancouver, was generic in nature and was not specific to the assessment areas for Project-related marine vessels. In the context

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of Project-related marine vessels, the Board finds Trans Mountain’s predicted wake wave height modelling to be adequate and concurs with Trans Mountain’s conclusion that Project-related marine vessel wake wave heights at the shoreline would be within the range of natural conditions. The Board generally concurs with Trans Mountain and DFO in that Project related marine vessels are unlikely to result in any measurable changes to the biophysical characteristics of intertidal habitats. The Board acknowledges the evidence provided by Tsawout First Nation, and agrees that some impacts to intertidal habitat could occur from Project-related marine vessel wake waves, such as increased sedimentation. However, the Board is of the view that these effects would be localised to very small portions of the Local Study Area (LSA). Therefore, the Board is of the view that effects from Project-related marine vessel wake waves on intertidal habitat and marine fish, including eelgrass beds, would be of low magnitude. The Board finds that the effects would occur for the duration of operations (long-term) and would be reversible. The Board also finds that the contribution from Project-related marine vessels to total cumulative effects on marine fish and fish habitat within the RSA is expected to be inconsequential. Therefore, the Board finds that the adverse effects on marine fish and fish habitat from Project-related marine vessels are not likely to be significant. The Board recognizes that SARA-listed marine fish species are present within the LSA and RSA. The Board is of the view that effects on these species would be similar to other fish species. Given their limited abundance, and absence of critical habitat within in the LSA and RSA, the Board finds that adverse effects on SARA-listed marine fish from Project-related marine vessels are not likely to be significant. The Board agrees with DFO and Trans Mountain in that a detailed assessment of underwater noise produced by Project-related marine vessels on marine fish is not practicable due to lack of Canadian standards and the limitations in data to support such an assessment. The Board acknowledges the evidence provided by participants and agrees that some form of adverse, short-term effect (e.g., small behavioral changes) is likely to occur from underwater noise produced by Project-related marine vessels. However, the Board was not convinced that these short-term effects would translate into larger, more substantial impacts. Given lack of Canadian standards and the limitations in data to support such an assessment, the Board finds that the exact nature of the effect of underwater noise produced by Project-related marine vessels on marine fish is uncertain. In addition, marine shipping is beyond the Board’s regulatory authority and the Board does not have the ability to impose specific mitigation conditions to address environmental effects of Project-related marine shipping. The Board acknowledges the evidence provided by participants and agrees that ballast water from commercial marine vessels can promote introduction of aquatic invasive species. However, the Board shares the opinion of Trans Mountain and DFO which indicates that compliance with Ballast Water Control and Management Regulations of the Canada Shipping Act, 2001 would effectively minimize any potential introduction of aquatic invasive species from Project-related marine vessels. Therefore, the Board has not provided a detailed assessment of the potential effects on marine fish from the introduction of aquatic invasive species from Project-related ballast water.

Marine mammals Trans Mountain described the marine waters of B.C. as home to a broad range of marine mammal species, including cetaceans (whales, dolphins, and porpoises), pinnipeds (seals and sea lions), and sea otters. It said that the productive straits and sounds of the RSA provide important habitat for foraging, breeding, socializing, and migration. Trans Mountain said that many species of marine mammal can be observed in the RSA year-round, and thus depend on this environment for all aspects of their life history, while other species are predominantly seasonal in their presence, coming to feed for a season or simply passing through during migration. Trans Mountain identified 10 species of marine mammals, and 4 killer whale ecotypes, that are SARA listed and have potential to occur in the RSA (Table 24). Trans Mountain said that critical habitat for the Southern resident killer whale and the North Pacific humpback whale has been identified in the RSA (Figure 26). Trans Mountain said that marine mammals in the RSA face a variety of anthropogenic threats and stressors. It said that stressors vary in intensity and relative importance for individual species but, broadly speaking, include: chemical contamination from both legacy contaminants and current inputs; reductions in prey abundance or quality; physical disturbance; acoustic disturbance or injury from both acute and chronic sources; risk of collisions; risk of entanglements; and, climate change.

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Table 24: Species listed under Schedule I of the Species at Risk Act potentially found within the Regional Study Area

Species Status Humpback whale Threatened Fin whale Threatened Sei whale Endangered Grey whale Special Concern Blue whale Endangered North Pacific right whale Endangered Offshore killer whale Threatened Bigg’s killer whale (formerly Transient) Threatened Northern resident killer whale Threatened Southern resident killer whale Endangered Harbour porpoise Special Concern Stellar sea lion Special Concern Sea otter Special Concern Several participants raised issues related to impact of Project-related marine vessels on marine mammals. This section focuses on the following key issues: • permanent auditory injury, temporary auditory injury, and sensory disturbance; • vessel strikes; • southern resident killer whale; • other marine mammals; and • mitigation and the Marine Mammal Protection Program.

Permanent auditory injury, temporary auditory injury, and sensory disturbance Trans Mountain said that loud underwater noise has the potential to result in temporary or permanent auditory injury (i.e. temporary or permanent threshold shifts (TTS) or (PTS)), or cause sensory disturbance to marine mammals. To determine the potential effects of Project related vessel-based underwater noise on marine mammals, Trans Mountain, in the absence of any Canadian legislation or guidelines, compared sound source levels from tankers and tugs, based on literature values and acoustic modelling, against thresholds predicted to cause PTS, TTS, and sensory disturbance to marine mammals. Trans Mountain said that based on these results, no PTS or TTS to marine mammals is expected as a result of Project-related marine vessel operations. Trans Mountain said that based on the results of the acoustic modelling study, noise levels associated with an increase in Project-related marine vessel traffic within the RSA are expected to exceed thresholds for behavioral disruption. Trans Mountain said that underwater noise levels above the threshold are predicted to extend for 4 to 7 km from Project-related marine vessels and would be centered on the shipping lanes. Trans Mountain said that sensory disturbance could result in a variety of impacts, such as habitat avoidance, changes in activity states (e.g., feeding, resting, or travelling), and/or interference of communication or perception of sounds (i.e., masking). It said that the degree of sensory disturbance experienced by a marine mammal depends on numerous factors, including: the source level; frequency and duration of the underwater noise; the context (i.e., the animal’s activity state at the time); and the species in question. Trans Mountain said that while exposure of a stationary marine mammal in the RSA to a Project related marine vessel will be intermittent, this daily exposure will occur throughout the life of the Project. It said that most studies report that marine mammal behaviour returns to normal after sound production ceases, and in consideration of only routine effects associated with the Project, it is expected that the time between

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Figure 26: Southern resident killer whale and North Pacific humpback whale critical habitat identified in the Regional Study Area

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342 National Energy Board 000710 vessel transits would allow marine mammals to recover from the sensory disturbance before the next transit of a Project-related marine vessel. Trans Mountain further said that while marine mammals may not encounter another Project related marine vessel for the remainder of the day, they are very likely to encounter other marine vessels within minutes to hours of the Project-related marine vessel passing, which could conceivably approach near-continuous sensory disturbance. Trans Mountain said that shipping is not a novel activity in the RSA, and many species that use this area regularly are likely to have become ‘habituated’ to sounds associated with marine transportation activities. Raincoast Conservation Foundation indicated that compensatory mechanisms (i.e. habituation) come with an energetic cost. Participants raised concerns over potential impacts of underwater noise on marine mammals. Dr. Lance G. Barrett-Lennard commented that the impact of increased underwater noise from tankers and escort tugs would affect the behaviour, distribution and potentially the health of marine mammals. DFO raised concerns regarding Trans Mountain’s assessment methods, indicating that the locations and dataset used by Trans Mountain in its underwater noise predictive modelling may not accurately represent all locations within the assessment area, specifically in areas considered critical habitat for the Southern resident killer whale (e.g., Boundary Pass). Trans Mountain said that the four locations selected for acoustic modelling scenarios were meant to be reasonably representative of all locations within the RSA and that the addition of an extra modelling scenario location for Boundary Pass would not alter the conclusions of the assessment. DFO noted that Trans Mountain’s assessment only addressed the noise produced and propagated from Project-related ships, and did not consider the potential cumulative and/or additive effects of such noise in combination with existing shipping activity.

Vessel strikes Trans Mountain said that all marine vessels have the potential to accidently strike marine mammals. Trans Mountain indicated that the probability and resulting effect of a strike depends on a variety of factors, including the speed of the vessel, the species of marine mammals, and density of vessel traffic and marine mammals in a given area. Trans Mountain said that depending on the severity of the injury, an individual marine mammal may or may not recover from a vessel strike. It said that while the primary effects associated with being struck are blunt-force trauma or lacerations, long-term consequences may include immediate direct mortality; indirect mortality resulting from complications or infection of internal or external injuries; long-term or permanent injuries; reduced fitness or fecundity; or short-term recoverable injuries. Trans Mountain said that the magnitude of this effect may therefore range from low to high. It said that while a strike resulting in minor injuries may be low magnitude, mortality of a SARA-listed species would be considered a high magnitude effect. Trans Mountain said that at the population scale, recovery from the mortality of an individual would depend on the population in question, its generation time, and its conservation status. Whereas population-level effects for some species may be reversible in the medium- term, mortality of individuals listed as Endangered (e.g., North Pacific right whale) could have long-term or permanent population-level consequences. Trans Mountain conducted a qualitative review of relevant literature and DFO’s Marine Mammal Incident Database to support its assessment of Project-related marine mammal vessel strikes. Trans Mountain said that the overall probability of a Project-related marine vessel striking and injuring a marine mammal is considered low. It said that while ship strikes leading to marine mammal fatalities can and do occur, such occurrences are infrequent relative to the number of vessels (of all sizes and classes) on the water. DFO cautioned that the DFO’s Marine Mammal Incident Database, or any database that relies on the recovery of dead whales, may not be representative of the true frequency of ship strike occurrences and may underrepresent the true frequency of marine mammal vessel strikes. The Board requested Trans Mountain provide a quantitative study that evaluated the risk to marine mammals from Project-related marine vessel strikes. Trans Mountain developed an encounter risk model to predict the probability of Project-related marine vessel encountering various marine mammals along the shipping lanes and anywhere within the RSA, in combination with the existing and predicted marine traffic levels. Trans Mountain said that, based on the model results, the encounter risk for any particular vessel is quite small and to date, there have been no known instances of a tanker servicing the WMT having collided with a whale. As such, the potential for Project-related vessel strikes is considered to be a low probability event. Several participants raised general concerns related to marine mammal vessel strikes.

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Raincoast Conservation Foundation said that Trans Mountain’s encounter risk model relied on occurrence data derived from opportunistic sightings collected primarily from whale watchers and not corrected for effort. It further said that that density cannot be derived from opportunistic sightings and consequently, the assessment is severely limited and unreliable for estimating ship strike risk or identifying areas of greatest risk. Trans Mountain acknowledged the limitations of the data used to inform the encounter risk model and said that a quantitative seasonal accounting of densities is not publicly available for many of the marine mammal species considered, or for the entire RSA, and that such information would greatly improve the applicability and spatial resolution of the encounter model. Trans Mountain committed to include, as part of its Port Information and Terminal Operations, explicit guidance for reporting marine mammal vessel strikes and mammals in distress to the appropriate authorities to ensure clarity around marine mammal vessel strikes. DFO said that although it is possible to estimate the current risk to marine mammal indicator species from ship strikes in the RSA and the additional risk that could result from Project-related vessel traffic, such estimates would likely have a high degree of uncertainty. DFO further said that high resolution spatial data on the densities of marine mammal indicator species are lacking, particularly for the humpback whale, which is the species most likely to be affected by ship strikes. Thus, an accurate quantitative assessment of risk to humpback whales from existing shipping traffic is not feasible at this time, nor is an estimate of the increased risk associated with Project-related vessels.

Southern resident killer whale Participants noted that the Southern resident killer whale is listed as Endangered under the SARA. Trans Mountain said that according to DFO’s Recovery Strategy for Northern and Southern Resident Killer Whale and the Committee on the Status of Endangered Wildlife in Canada (COSEWIC) Assessment and Update Status Report on the Killer Whale, key threats to the Southern resident killer whale population include: chemical and biological contaminants; reductions in the availability or quality of prey (primarily Chinook and chum salmon); and physical and acoustic disturbance. Trans Mountain also said that DFO has included the environment’s acoustic attributes in their designation of critical habitat for Southern resident killer whales, and sources of acoustic disturbance are noted as including both high-intensity sounds, such as those produced by seismic surveys, and chronic sources such as vessel traffic. Trans Mountain’s environmental assessment concluded that even though the Project contribution to overall sensory disturbance effects is small, the potential effects of increased Project-related marine vessel traffic, and their contribution to potential cumulative effects, are determined to be significant for Southern resident killer whales. Trans Mountain acknowledged that, despite operating legally, and being proportionally small relative to the existing marine vessel traffic, the Project will contribute additional underwater noise that could affect the Southern resident killer whale population, and that this noise will act cumulatively with noise from existing and reasonably foreseeable marine vessel traffic. Trans Mountain said that past and current activities, including all forms of mortality, high contaminant loads, reduced prey, and sensory and physical disturbance, have resulted in significant adverse cumulative effects to the Southern resident killer whale population. Trans Mountain said that given the current state of knowledge, and the ability of threats to interact with one another, it is not possible to completely partition how each threat may be affecting the population. Trans Mountain argued that the shipping lanes will continue to host marine vessel traffic with or without the Project, and that the impacts to the Southern resident killer whales will continue to exist with or without the Project. Trans Mountain said that a Project-related marine vessel was predicted to encounter killer whales along the shipping lanes once every six days. Trans Mountain said that the return intervals only represent the frequency with which a Project-related vessel and marine mammal are expected to occur in the same place at the same time. It said that encounter risk model does not factor in any behavioural responses of the whale (i.e., movement out of the area as the vessel approaches), nor any avoidance response (e.g., dives, bursts of speed, changes of course), and that only a fraction of the encounters will result in actual physical contact between a vessel and a whale, and out of the incidences of physical contact, only a fraction will result in fatal injuries. Trans Mountain said that killer whales in particular are small, agile, and fast-moving, and that based on historical records, the percentage of encounters that ultimately lead to collisions with killer whales is expected to be low. According to strike event records obtained from DFO’s B.C. Marine Mammal Incident Database (1973 to October 2012), there have been six records of strikes with killer whales

344 National Energy Board 000712 that were confirmed or deemed likely to have occurred in B.C. (maximum vessel size reported for a killer whale strike was a ferry in the Strait of Georgia). Participants provided substantial amounts of evidence in regards to the Southern resident killer whales and potential Project-related effects. DFO supported Trans Mountain’s significance conclusion, stating that overall, Trans Mountain’s assessment of residual effects on the Southern resident killer whale may be accurate, given the current endangered status and the declining trend of this population in recent decades. DFO said that the poor survival and birth rates of Southern resident killer whales over the past 20 years suggest that the current habitat quality, including that of designated critical habitat within the RSA, may be insufficient to allow for recovery of this population. It further noted that due to a lack of information that is needed to quantify the impact of existing underwater noise conditions in the RSA on the Southern resident killer whale population, it is not possible to predict what further effects might be anticipated from future Project-related vessel traffic. DFO also acknowledged that the risk to Southern resident killer whales from Project-related marine vessel collision may be extremely low or negligible. Raincoast Conservation Foundation said that the viability and conservation status of the Southern resident killer whales is adversely affected by repeated and multiple human-caused disturbances that interact and have cumulative harmful effects. It said that the main factors believed to be impeding recovery and viability of the Southern resident killer whales include physical and acoustical disturbance caused by marine traffic and other industrial activities, nutritional stress from inadequate prey availability, and exposure to environmental contaminants. Raincoast Conservation Foundation further stated that the Project-related marine vessels have the potential to exacerbate many threats facing Southern resident killer whales and that while an understanding of how the current threats may act synergistically to impact killer whales is unknown, in other species multiple stressors have been shown to have strong negative and often lethal effects, particularly when animals carry elevated levels of environmental contaminants. Raincoast Conservation Foundation said empirical measurements of ambient sound levels (natural and anthropogenic) found that critical habitats for Southern resident killer whales have the noisiest levels of all sites sampled along the B.C. mainland coast and that the Project’s proposed activities will only increase noise levels in an already noisy environment. Raincoast Conservation Foundation said that present noise levels under busy ship traffic conditions are already so high that additional ship traffic may seem to have little impact on communication space when in fact that additional noise could essentially eliminate even those few remaining opportunities for killer whales to communicate. Raincoast Conservation Foundation said that there is a reasonable likelihood of population level and ecological consequences for Southern resident killer whales from Project-related increases in vessel noise events and the chronic deterioration of whales’ acoustic habitat. Raincoast Conservation Foundation critiqued Trans Mountain’s assessment methods and suggested that the Project-related marine vessel effects need to be translated into population and ecological level risks. Raincoast Conservation Foundation completed a Population Viability Analysis which modelled the future population based on current conditions with no Project, and contrasted that with a model that assumes the Project is approved. Raincoast Conservation Foundation said that modelling results indicated that if base line conditions persist, the Southern resident killer whale population will most likely remain about at its current size or continue a very slow decline. It further said that modelling shows that increased threats from Project-related effects increase the risk of extinction and accelerate decline. It said that it is abundantly clear that the population cannot withstand additional negative pressures, recover from its current endangered status, and persist. Raincoast Conservation Foundation also said that the factor with the largest effect on depressing population size and possibly leading to extinction is a reduction of Chinook prey base. Tsawwassen First Nation indicated that the Southern resident killer whale population has declined over recent years and said that population recovery seems unlikely unless drastic changes to those factors compromising the population’s demographics occur.

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Other marine mammals Baleen whales Trans Mountain indicated that the North Pacific humpback whale is listed as Threatened under Schedule 1 of the SARA. It said that a small portion of a much larger north pacific population of humpback whales is found seasonally within the RSA. Trans Mountain said that activities identified by DFO’s Recovery Strategy for the North Pacific Humpback Whale (Megaptera novaeangliae) in Canada as likely to destroy or degrade critical habitat include vessel traffic, toxic spills, overfishing, seismic exploration, sonar and pile driving. Trans Mountain said that no scientific study has established a causal link between increased vessel noise and population-level effects on humpback whales. Trans Mountain said that based on results of acoustic modelling, underwater noise will be detectable by humpback whales over large distances and may cause sensory disturbance within 4 to 7 km of the shipping lanes. Trans Mountain also identified that sensory disturbance would occur within North Pacific humpback whale critical habitat, but said that the critical habitat within the RSA is only a small portion of the critical habitat identified in Canadian waters. Trans Mountain said that a 2011 re-assessment by COSEWIC has indicated that the humpback whale (North Pacific population) has recovered to a point where it can be reclassified as a species of Special Concern. It said that the Minister of the Environment, on the advice of the Minister of Fisheries and Oceans, has recommended to the Governor in Council to make a regulatory amendment to Schedule 1 of SARA in order to change the status of the species from Threatened to Special Concern. DFO said that Trans Mountain, in its assessment, did not consider the strong long-term site fidelity of humpback whales to feeding areas within the RSA and the resulting repetitive exposure of these individuals to Project-related shipping noise levels that could result in behavioural disturbance. Trans Mountain disagreed with DFO and maintained that its assessment of effects on humpback whales and subsequent significance determination accurately considered the localized areas of high humpback whale abundance that occur within the RSA. Trans Mountain and DFO both identified the North Pacific humpback whale as the species at the highest relative risk of marine mammal vessel strike in the RSA, as the species is known to seasonally congregate in critical habitat along the western portion of the RSA. Trans Mountain said that in B.C., humpback whales are the most commonly struck species, as reported to the B.C. Marine Mammal Response Network. Trans Mountain’s encounter risk model predicted that Project-related marine vessels would encounter a North Pacific humpback whale along the shipping lanes every 334.2 days. Trans Mountain said that only a fraction of these encounters will result in actual physical contact between a vessel and a whale, and out of the incidences of physical contact, only a fraction will result in fatal injuries. Trans Mountain said that other baleen whales that frequent the RSA on occasion include Fin whales, Grey whales, and Minke whales. Trans Mountain said that while these other species of baleen whale are not altogether uncommon in the area, neither is considered particularly abundant, and that no critical habitat or DFO Important Areas have been identified within the RSA for any species of baleen whale other than humpback whales. It further said that all baleen whales belong to the same functional hearing group, and while species such as Fin whales may be somewhat more sensitive than humpback whales to low frequency sounds associated with shipping, effects of sensory disturbance to the humpback whale indicator are expected to be generally comparable to effects on all baleen whale species found within the RSA. Raincoast Conservation Foundation said the increase in shipping associated with the Project creates an increased risk of ships striking marine mammals and, in particular, great whales such as Blue, Fin, Sei, Humpback, and Grey whales, as well as smaller cetaceans, such as killer whales, dolphins and porpoises. It said that many of these marine mammals are listed as species at risk in Canada, and that injury or death because of ship strikes are significant threats to recovering populations of marine mammals, posing the greatest risk to small or isolated whale populations, such as the Southern resident killer whales, where a single strike-related mortality could have population-level effects. Trans Mountain said that based on the encounter risk model, the overall probability of a Project related vessel encountering a Blue, Sei, Fin, or North Pacific right whale is considered very low.

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Other Toothed whales Trans Mountain said that other toothed whales may be observed in the RSA, including Dall’s porpoises, Harbour porpoises, Pacific white-sided dolphins and the other ecotypes of killer whales. It said that based on results of acoustic modelling, underwater noise will be detectable by toothed whales over large distances and may cause sensory disturbance within 4 to 7 km of the shipping lanes. Trans Mountain said that species, such as the Harbour porpoise, may have somewhat more pronounced responses to disturbance, but that acoustic modelling suggested that the extent of sensory disturbance is expected to be generally comparable across all toothed whale species found within the RSA. It said that in contrast to the Southern resident killer whale, Project-related residual effects will affect only localized portions of the overall North Pacific (or Canadian) populations of toothed whales in the RSA. As such, and in consideration of the notable differences between population status, abundance, and occurrence of Southern resident killer whales versus the various other species of toothed whales in the RSA, effects of increased Project-related marine vessel traffic on toothed whales (other than Southern resident killer whales) are deemed to have a negative impact balance but are not significant. Trans Mountain also noted that no critical habitat has been identified for any species of toothed whale79 (excluding the Southern resident killer whale) and that the RSA is considered a DFO Important Area for Harbour porpoise. Trans Mountain said that according to strike event records obtained from DFO’s B.C. Marine Mammal Incident Database (1973 to October 2012), there has been eight recorded strikes on toothed whales that were confirmed or deemed likely to have occurred in B.C.: one involved a Dall’s porpoise calf; one involved a Harbour porpoise calf; and six involved killer whales with a maximum vessel size reported for a killer whale strike being a ferry in the Strait of Georgia. Trans Mountain said that killer whales are small, agile, and fast moving, and although no mathematical probabilities have been determined to calculate actual strike risk for this species, historical records suggest that the percentage of encounters that ultimately lead to collisions with killer whales is low. Trans Mountain said that DFO’s Recovery Strategy for the Transient Killer Whale (Orcinus orca) in Canada recognizes collisions with vessels as a stressor with demonstrated causal certainty, but a low level of concern.

Mitigation and the Marine Mammal Protection Program Trans Mountain said that while it can actively enforce restrictions on tankers docked at the WMT to comply with its operating practices and standards, once the tanker departs from the WMT, the company has little direct control over the operating practices of the tankers or tugs as Project-related marine vessels are owned and operated by third parties. It said that marine transportation in Canadian waters is authorized and regulated through the Canada Shipping Act, 2001, related legislation, and regulations administered by Transport Canada and the CCG. As such, no direct mitigation has been proposed by Trans Mountain for effects associated with increased Project-related marine transportation. The Board requested a species- specific assessment for SARA-listed marine mammals that are likely to be impacted from Project-related marine transportation, which included a request for species-specific mitigation. Trans Mountain, for every species, recommended no mitigation. Trans Mountain reiterated that Project-related marine vessels are owned and operated by a third party, and marine transportation in Canadian waters is authorized and regulated through the Canada Shipping Act, 2001 and related legislation and regulations are administered by Transport Canada and the CCG. Trans Mountain indicated that it would be interested in supporting and participating in a joint industry-government advisory group that would be charged with determining and/ or developing effective mitigation measures to reduce potential effects of underwater noise on marine mammals in the region. Trans Mountain committed to developing a Marine Mammal Protection Program with a purpose of outlining Project-related tanker specific measures and regional collaborative initiatives that would be implemented by Trans Mountain and other operators along the marine shipping lanes to mitigate and manage potential environmental effects on marine mammals. Trans Mountain said that one of the objectives of the Marine Mammal Protection Program would include actively encouraging and participating in multi-stakeholder or independent initiatives that contribute to Southern resident killer whale recovery strategies. Trans Mountain indicated that one of the strategies of the Marine Mammal Protection Program is to ensure that Southern resident killer whales have an adequate and accessible food supply to allow recovery.

79 Potential critical habitat for transient killer whales was identified in the Regional Study Area.

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Trans Mountain said that it remains committed to supporting wild Pacific salmon and has indicated that it is willing to support the Pacific Salmon Foundation – Salish Sea Marine Survival Project, which it believes would contribute to better conservation and increased abundance of chinook salmon. Trans Mountain said that recovery of at-risk whale populations in the Salish Sea is a complex and multi-faceted problem, and that integrated, multi-party solutions are required. DFO said that it is supportive of these multi-stakeholder partnerships and initiatives, which are necessary for ensuring recovery of aquatic species at risk. Trans Mountain also committed to supporting the Port Metro Vancouver led Enhancing Cetacean Habitat and Observation Program (ECHO). Port Metro Vancouver said that ECHO has been established in collaboration with government agencies, First Nations, marine industry users, non government organizations and scientific experts, to better understand and manage the potential impacts to cetaceans from commercial vessel activities throughout the southern coast of B.C. Port Metro Vancouver said that under the umbrella of the ECHO Program, a series of individual initiatives are being considered to better understand potential threats associated with commercial vessel related activities. The outcomes of these projects will inform the possible development of mitigation and management measures to reduce potential impacts of shipping to cetaceans. Trans Mountain said that it would be participating in Green Marine, a voluntary environmental program for the maritime industry as a whole to reduce its environmental footprint. Trans Mountain and DFO identified various national and international initiatives currently underway or proposed that have a goal of developing mitigation around both vessel strikes and underwater noise. Trans Mountain said that its Tanker Acceptance Standards require all accepted vessels to meet all applicable international and local rules and regulations. It further said that should future guidelines or standards for reducing underwater noise from commercial vessels come into force as international and local rules and regulation, Project-related marine vessels would meet those rules and regulations. Participants indicated that measures that alter vessel movements, such as speed restrictions or relocating shipping lanes to avoid marine mammal congregation areas, are effective at reducing impacts from marine shipping practices. Trans Mountain said that steps have been taken by some countries, primarily through government agencies, to reduce ship strike potential to endangered whale species through modifications to vessel operations, such as changing shipping routes. Trans Mountain said that in the Bay of Fundy internationally-mandated shipping lanes were shifted, from an area with high right whale densities to an area with lower right whale densities, which has reduced the relative potential for accidental collisions between right whales and ships by approximately 80 per cent. The Board requested information from Transport Canada regarding potential alternative shipping lanes or vessel speed reductions to reduce impacts to marine mammals from marine shipping for the southern coast of B.C. Transport Canada indicated that it was not currently contemplating any such reviews, but did identify that it would be participating in the ECHO Program. DFO said that its review has suggested that Trans Mountain’s assertion that mitigation measures are not available, may be accurate and that specific mitigation measures that Trans Mountain can feasibly implement to reduce Project-related effects do not appear to be available. DFO recommended that as the Marine Mammal Protection Program is further refined and developed, Trans Mountain explore the potential for having trained marine mammal observers on-board Project-related marine vessels. These observers may be staff on-board the vessels or potentially members of the Pacific Pilotage Authority that have undergone training to help them identify risks to marine mammals and make appropriate vessel navigation alterations to reduce effects on marine mammals species. Tsawwassen First Nation argued that what is necessary is urgent regulatory action to reduce underwater noise in the Salish Sea. Tsawwassen First Nation argued that the results of the scientific studies undertaken as part of the Marine Mammal Protection Program have no guarantee that effective mitigation will be developed. It argued that scientific information may, in fact, inform the marine shipping industry and Transport Canada in ways that serve the interests of the Southern resident killer whale recovery, but there can be no certainty of this at the present time.

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Views of the Board

Permanent auditory injury, temporary auditory injury, and sensory disturbance The Board accepts Trans Mountain’s acoustic modelling and finds that permanent or temporary auditory injury is not expected to occur as a result of Project-related marine vessel traffic. The Board finds that underwater noise produced from Project-related marine vessels would result in sensory disturbance to marine mammals. The Board is of the view that sensory disturbance is expected to be a long-term effect as it is likely to occur intermittently for the duration of operations of Project-related marine vessel traffic. The Board finds this effect to be reversible and is of the view that once a marine mammal is no longer exposed to underwater noise from Project-related marine vessels, then behavior would likely return to normal. The Board accepts that some marine mammals may habituate to underwater noise associated with marine shipping. However, the Board recognizes that sensory disturbance and habituation would result in a variety of adverse effects on marine mammals. The Board also recognizes that the Regional Study Area (RSA) is a heavily utilized marine environment, which is predicted to increase in use, and that once exposure to underwater noise from Project-related marine vessels ceases, it is likely that marine mammals would be exposed to some form of disturbance soon after from another marine vessel. The Board is of the view that the magnitude of this effect would vary, according to biological and environmental conditions, and the species exposed. The Board has carried the above criteria (e.g., reversibility, temporal, and spatial extent) through to its species specific assessment, which is provided below.

Vessel strikes The Board recognizes that Project-related marine vessels have the potential to strike a marine mammal, which could result in lethal or non-lethal effects. The Board is of the view that the risk of a marine mammal vessel strike in the RSA would exist for the duration of operations of Project- related marine vessel traffic. The Board finds that the effects of a marine mammal vessel strike would range from reversible to permanent, depending on the severity of the strike (i.e., mortality would be permanent). The Board is of the view that the magnitude of a marine mammal vessel strike would vary according to the extent of the injury and the species struck. The Board has carried the above criteria (e.g., reversibility, temporal, and spatial extent) through to its species specific assessment, which is provided below. The Board also recognizes that the RSA is a heavily utilized marine environment which is predicted to increase in use, and that the increase in Project-related marine traffic would contribute to the cumulative risk of marine mammal vessel strikes. The Board acknowledges Trans Mountain’s commitment to include, as part of its Port Information and Terminal Operations, explicit guidance for reporting marine mammal vessel strikes and mammals in distress to the appropriate authorities to provide clarity around the frequency of marine mammal vessel strikes.

Mitigation and the Marine Mammal Protection Program The Board shares participants’ concerns surrounding a lack of possible mitigation to address effects from Project-related marine vessels. The Board agrees with DFO and Trans Mountain that there is no direct mitigation Trans Mountain can apply to reduce or eliminate potential adverse effects from Project-related marine vessels. The Board recognizes that altering vessel operations, such as shifting shipping lanes away from marine mammal congregation areas or reducing marine vessel speed, can be an effective mitigation to reduce impacts on marine mammals from marine shipping. However, these potential mitigation measures are outside of the Board’s regulatory authority, and out of Trans Mountain’s control. The Board encourages other regulatory authorities, such as Transport Canada or Fisheries and Oceans Canada which regulate the marine environment and marine traffic, to explore any such initiatives that would aim to reduce the potential effects of marine vessels on marine mammals. The Board recognizes that numerous initiatives are currently underway or are proposed with an intent to address issues related to underwater noise and vessel strikes, and notes Trans Mountain’s commitment to participate in some of these initiatives. The Board would impose Condition 132 requiring Trans Mountain to develop a Marine Mammal Protection Program and undertake or support initiatives that focus on understanding and mitigating Project-related effects. The Board

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would expect Trans Mountain to develop the program in consultation with appropriate government authorities, species experts, and Aboriginal groups. The Board would require Trans Mountain to file the initial Program with the Board prior to commencing Project operations, with any further iterations being developed and implemented in consultation with the appropriate regulatory authorities for marine shipping. The Marine Mammal Protection Program is meant to ensure Trans Mountain fulfills its commitments to participate in the development of industry wide shipping practices in conjunction with the appropriate authorities. The Board recognizes that the Marine Mammal Protection Program offers no assurance that effective mitigation would be developed and implemented to address Project-related effects on marine mammals. The Board is also cognizant of DFO’s recommendation that Trans Mountain explore the use of marine mammal on-board observers on Project-related marine vessels. The Board agrees that these could be valuable programs and expects to see similar initiatives as part of Trans Mountain’s Marine Mammal Protection Program. The Board also recognizes a commitment by Trans Mountain to require Project-related marine vessels to meet any future guidelines or standards for reducing underwater noise from commercial vessels as they come into force.

Southern resident killer whale The Board is of the view that the Southern resident killer whale population has crossed a threshold where any additional adverse environmental effects would be considered significant. The Board is also of the view that the current level of vessel traffic in the RSA and the predicted future increase of vessel traffic in the RSA, even excluding the Project related marine vessels, have and would increase the pressure on the Southern resident killer whale population. Trans Mountain’s Summary of Existing and Future Vessel Movements at Five Locations in the RSA indicates that Project-related marine vessels would represent a maximum of 13.9 per cent of all vessel traffic in the RSA, excluding Burrard Inlet, and would decrease over time as the volume of marine vessel movements in RSA is anticipated to grow. While the effects from Project-related marine vessels will be a small fraction of the total cumulative effects, the Board acknowledges that this increase in marine vessels associated with the Project would further contribute to cumulative effects that are already jeopardizing the recovery of the Southern resident killer whale. The effects associated with Project-related marine vessels will impact numerous individuals of the Southern resident killer whale population in a habitat identified as critical to the recovery and classifies the effects as high magnitude. Consequently, the Board finds that the operation of Project-related marine vessels is likely to result in significant adverse effects to the Southern resident killer whale. The Board recognizes that DFO’s Recovery Strategy for the Northern and Southern Resident Killer Whale (Orcinus orca) in Canada identifies that vessel noise is considered a threat to the acoustic integrity of Southern resident killer whale critical habitat, and that physical and acoustic disturbance from human activities may be key factors causing depletion or preventing recovery of resident killer whale populations. The Board notes that mortality of a Southern resident killer whale from a Project- related marine vessel collision, despite the low likelihood of such an event, would have population level consequences. The Board acknowledges that Project-related marine vessels will encounter a killer whale relatively often. However, given the limited number of recorded killer whale marine vessel strikes and the potential avoidance behaviors of killer whales, the Board agrees with Trans Mountain and DFO that the probability of a Project-related marine mammal vessel strike on a Southern resident killer whale is low. The Board is mindful that the recovery of the Southern resident killer whale would require complex, multi-party initiatives. DFO and other organizations are currently undertaking numerous initiatives to support the recovery of the Southern resident killer whales, including finalizing the Action Plan for the Northern and Southern Resident Killer Whales (Orcinus orca) in Canada. As part of the Marine Mammal Protection Program, Trans Mountain has committed to support the objectives and recovery measures identified in the Action Plan. The draft Action Plan includes a detailed prioritized list of initiatives, and the Board expects to see Trans Mountain supporting some of these initiatives within the Marine Mammal Protection Program. The Board encourages these initiatives, and those of the Government of Canada to prioritize and implement specific measures to promote the recovery of the Southern resident killer whale.

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The Board also acknowledges Raincoast Conservation Foundation’s Population Viability Analysis, which indicates that the factor with the largest effect on depressing population size and possibly leading to extinction is a reduction of Chinook prey base, and that Trans Mountain has indicated its historical support for wild salmon, as well as support for potential projects such as the Pacific Salmon Foundation – Salish Sea Marine Survival Project, which Trans Mountain believes would contribute to better conservation and increased abundance of Chinook salmon. The Board recognizes that Port Metro Vancouver and the RSA currently support a large amount of vessel traffic and that the level of traffic is expected to increase with or without Project-related marine vessels. This increase will place even greater burden on the Southern resident killer whale. In this context, and in light of all of the evidence, the Board finds that the operation of Project-related marine vessels is likely to result in significant adverse effects to the Southern resident killer whale.

Other marine mammals The Board is of the view that adverse effects from an increase in vessel traffic, including Project- related marine vessels, would be comparable within similar species (e.g., toothed whales, baleen whales). The Board agrees with Trans Mountain in that the disparity between habitat usage, occurrence, and abundance of other marine mammals within the RSA are important deciding factors in determining whether or not Project-related marine vessels are likely to cause significant adverse environmental effects. In regards to other toothed whales, the Board is of the view that effects on other toothed whales from sensory disturbance are likely to be similar across species. Some species, such as the Harbour porpoise, are likely to show more pronounced effects as they are known to be more sensitive than other toothed whales to underwater noise. The Board agrees with Trans Mountain that vessel strikes would be considered a low probability event. The Board recognizes that DFO’s Recovery Strategy for the Transient Killer Whale (Orcinus orca) in Canada indicates that collisions with vessels are likely of low concern. The Board finds that Project-related marine vessels would result in impacts to a few or many individual toothed whales of much larger North Pacific populations and are unlikely to result in population level consequences. The Board also recognizes that no other critical habitat has been identified in the RSA for other toothed whales. Therefore, the Board finds that the effects from Project-related marine vessels on other toothed whales are not likely to be significant. The Board finds that the contribution from Project-related marine vessels on the other toothed whales to total cumulative effects is expected to be inconsequential. The Board recognizes that sensory disturbance resulting from any increase in vessel traffic, including Project related marine vessels, would impact humpback whales and a small portion of their critical habitat. While the Board acknowledges that humpback whales have the potential to be struck and killed by Project-related marine vessels, DFO’s Recovery Strategy for the North Pacific Humpback Whale (Megaptera novaeangliae) in Canada indicates that given the current estimated population growth rate of humpbacks in B.C., present levels of marine shipping activities do not appear to be negatively affecting population viability at this time. The Board is of the view that humpback whales found seasonally in the RSA, and a small portion of their critical habitat, would be adversely affected from Project-related marine vessels. In light of this, the Board finds that adverse Project-related effects on the North Pacific humpback whale are expected to be of moderate magnitude and not likely to be significant. The Board finds that the contribution from Project-related marine vessels on the North Pacific humpback whale to total cumulative effects is expected to be inconsequential. The Board acknowledges that other baleen whales, many of which are SARA-listed, could potentially be found within the RSA. However, given the limited abundance and occurrence of these species in the RSA, and that no critical habitat has been identified in the RSA for baleen species other than the North Pacific humpback whale, the Board finds that adverse Project-related marine shipping effects on other baleen whales are not likely to be significant. The Board finds that the contribution from Project-related marine vessels on other baleen whales to total cumulative effects is expected to be inconsequential.

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Marine birds Several participants, including Cowichan Tribes and the District of North Vancouver, noted the importance of the southern coast of B.C. and in particular, Burrard Inlet and the Fraser River Estuary, to marine birds during winter, and during fall and spring migration. Trans Mountain said the RSA encompasses many marine bird breeding and staging areas that are in close proximity to the shipping lanes. Trans Mountain noted that out of a total of 124 marine bird species in the RSA, 19 species of waterfowl and coastal seabirds of conservation concern have been identified as potentially occurring within the RSA. Table 25 lists the species that are listed under Schedule 1 of the SARA. Trans Mountain noted that critical habitat was not identified within the RSA for any of these species. Table 25: Marine bird species at risk potentially affected by Project-related increase in marine vessel traffic

Species SARA Status Marbled murrelet Threatened Pink footed shearwater Threatened Red knot Threatened Short-tailed albatross Threatened Ancient murrelet Special concern Black-footed albatross Special concern Great blue heron Special concern Long-billed curlew Special concern Concerns were raised by various participants, including B.C. Nature and Nature Canada, ECCC, Mr. R.S. MacVicar, and the Lyackson First Nation regarding effects of a Project-related increase in marine vessel traffic on marine birds, including injury and mortality and behavioural changes from sensory disturbance.

Injury and mortality Trans Mountain noted that marine bird collisions with Project-related marine vessels are sporadic events that are highly dependent on location, weather and season. It said that vessel strikes are mostly due to attraction to light by nocturnally-foraging species that are naturally attracted to light as they feed on bioluminescent prey. Trans Mountain said that species potentially sensitive to light (albatross, petrels, auks, murres, and puffins) are generally in low number in the RSA relative to their overall populations. It said that given the relatively small number of individuals reported in the RSA and the fact that light attraction does not necessarily result in mortality, it is unlikely that a population level effect would result. B.C. Nature and Nature Canada asked if Trans Mountain would include a low-lighting protocol as a condition of contracting with tankers, tugs and any other vessels associated with the Project. Trans Mountain said that it would explore options for reducing lighting on Project-related vessels, to the extent that it is feasible with respect to safety and industry regulations.

Sensory disturbance Trans Mountain said that marine birds could alter their normal movement patterns to avoid sensory disturbances in the LSA associated with Project-related marine traffic. It also said that birds could avoid preferred sites within the LSA because of atmospheric and underwater noise during vessel operations. Trans Mountain said that the magnitude of effect varies by species and setting, as well as from the type and frequency of disturbance. Trans Mountain said that existing atmospheric sound in the vicinity of the marine shipping lanes is a combination of natural and man-made sound, and no changes to the type or intensity of sound generated are expected as a result of the Project. It said that the only change expected is the number of pass-by occurrences from the increase in tanker traffic, which is expected to be, on average, one laden tanker and one empty tanker daily. Trans Mountain said that vessels associated with the Project represent a small portion of the total vessel traffic in the RSA.

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Trans Mountain said that given there is already substantial amount of marine vessel traffic in the LSA and RSA, birds have likely become habituated to noise, and there is no evidence to suggest that the increase in Project-related marine vessel traffic could result in population level cumulative effects. Trans Mountain noted that intolerant marine birds would be displaced by marine traffic, so birds that continue to use this habitat have adjusted to accept this disturbance. Trans Mountain said that proving habituation is difficult in most cases, but especially so at sea where adequate baseline data are scarce. It said that, based on the reasonable assumption that habituation occurs, the cumulative effect on marine birds has been reduced relative to what it would be without habituation. ECCC said that the continued presence of marine birds in the LSA and RSA where they are currently exposed to vessel traffic and industrial activity does not mean that they would continue to acclimate to increases in vessel traffic and industrial activity as a result of the proposed Project. It said that the response of marine birds can be expected to vary with volume and frequency of vessel traffic and industrial activity to such a point where birds abandon the area. Trans Mountain said that it did not propose mitigation for Project-related marine vessel effects on marine birds from sensory disturbance or mortality because Project-related marine vessels would be operated by third parties acting under relevant shipping and piloting laws and regulations. It said that since it has little direct control over the actions of vessel owners and operators, mitigation is considered to include existing regulations and shipping standards that are monitored by several federal and international authorities. Trans Mountain said it expects that, through its tanker acceptance process, Project-related vessels would be maintained and operated to high industry standards. For example, all Project-related vessels would be fitted with exhaust silencers. The Board requested a species-specific assessment for all SARA-listed marine birds from Project-related marine transportation, which included a request for species-specific mitigation. For each species, Trans Mountain recommended that no mitigation measure be implemented for effects on marine birds from Project-related marine vessels. Trans Mountain said that Project related marine vessels will be operated by third-party subcontracting corporations acting under relevant shipping and piloting authorities, and that marine transportation in Canadian territorial waters is regulated through the Canada Shipping Act administered by Transport Canada and the Canadian Coast Guard. ECCC recommended that certificate conditions include an Avian Monitoring Plan to assess the effectiveness of proposed mitigation measures to avoid harm (incidental take) to migratory birds that could arise from activities related to marine transportation, or any other lighting sources. It said that this plan should include monitoring aboard tankers during shipping to assess the effectiveness of mitigation measures in avoiding incidental take through collisions and to identify the need for additional mitigation measures. In response to ECCC’s recommendation, Trans Mountain said that although it is not the owner or operator of tankers and cannot commit operators of Project-related vessels to report marine bird strikes/collisions with vessels in transit, it would include a section on marine birds in its Port and Terminal Book. Trans Mountain said the Port and Terminal Book would be submitted to the TERMPOL Review Committee a minimum of six months prior to commencement of operation, and would include a request for vessel operators to report any bird strikes/collisions to Marine Communication and Traffic Services. Trans Mountain said that a bird strike notification system would be best developed by federal departments responsible for protecting the marine environment, such as ECCC.

Views of the Board Trans Mountain and intervenors have filed conflicting evidence about the level of habituation that may occur with marine birds. The Board is of the view that habituation is species and context dependent, and that it is reasonable to expect that where marine birds that have not already been displaced from busy marine waters, that some level of habituation has occurred. ECCC recommended a condition for an Avian Monitoring Plan to assess effectiveness of mitigation measures proposed by Trans Mountain to reduce effects of Project-related marine vessel traffic on marine birds. The Board is of the view that given Trans Mountain would not own or operate the tankers that are related to the Project, such a condition would be inappropriate. Trans Mountain did commit to requesting that vessel operators report any bird strikes and collisions to the Marine

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Communication and Traffic Services through its Port and Terminal Book. The Board agrees that federal departments, such as ECCC, may be best able to develop a marine bird strike notification system for all vessels. Project-related marine shipping (mortality and sensory disturbance) on marine birds are expected to be long-term and would vary in spatial extent from the Local Study Area to the Regional Study Area. However, effects are expected to be reversible, and of low magnitude and that population-level effects are not likely to occur, even in the absence of specific mitigation. Similarly, the contribution from Project-related marine vessels to total cumulative effects on marine birds from Project-related marine shipping is expected to be of long-term duration, reversible in the short term, and of low magnitude.

14.3.2 Socio-economic effects Marine commercial, recreational and tourism use Trans Mountain said that Aboriginal and non-Aboriginal people using marine waters may experience potential marine commercial, recreational and tourism use effects from increased Project-related marine vessel traffic.

Commercial fisheries Trans Mountain said there are substantial commercial fishing activities throughout the RSA, including areas of the southern Strait of Georgia, Boundary Pass, Haro Strait and the Juan de Fuca Strait. There are also aquaculture operations in the RSA, although none are proximal to the shipping lanes. Trans Mountain said that in 2011 commercial fisheries in B.C. harvested approximately 168,000 tonnes of fish, worth $845.3 million. Targeted species, including salmon, herring, groundfish, crab, shrimp and prawn, are fished year-round. However, the location and timing of specific commercial fishing activities depends on a number of factors, such as the abundance and distribution of the species, the season, the value of the fishery and regulations determined by DFO. Although fishing vessels are permitted to fish in the shipping lanes as long as the passage of other vessels is not impeded, most fishing activity takes place outside of the shipping lanes.

Marine transportation Trans Mountain said that marine transportation in the RSA includes commercial marine transport, such as passenger ferries, cargo ships, the CN Rail Bridge at the Second Narrows in Burrard Inlet, and marine transport services such as tugs and barges. There are about 475,000 vessel movements per year on the West Coast, and tankers accounted for about 1,500 movements (0.3 per cent) during 2009-2010. Most commercial vessels use the shipping lanes for transiting through B.C. coastal waters, although tugs engaged in barging activities may also use the most expedient route through smaller navigable channels, and ferries travel specific routes between terminals that cross shipping lanes.

Marine recreational use Trans Mountain said that residents and visitors use the area for recreational activities including fishing, boating, sea kayaking and scuba diving, and marine tourism activities including cruise ship journeys, commercial sport fishing and whale-watching. It described specific characteristics of recreational use in the RSA in areas located in or near the shipping lanes, as well as near-shore locations such as river mouths, coastal campgrounds and marinas.

Marine tourism use Trans Mountain said that tourism is a large contributor to the provincial economy, and contributed $6.5 billion to the B.C. economy in 2011. Marine tourism within the RSA is diverse, and includes cruise ships calling from international and US ports, commercial sport fishing, fishing lodges, marinas, sea kayaking tours, dive charters, whale-watching and wildlife viewing tours, and marine cruising.

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Project interactions and effects Trans Mountain said that a disruption of marine commercial, recreational or tourism uses may occur due to increased transit of Project-related marine vessel traffic through the RSA The company said there is a potential for increased marine vessel collisions between Project-related vessels and commercial, recreational or tourism vessels, but that such collisions are considered to be unlikely due to adherence to regulatory standards and navigational and safety measures by most marine vessels. A collision event could result in damage to vessels or gear or economic impacts for commercial marine users. Trans Mountain said commercial fishers, marine transportation users, and some recreational marine vessels and tourism operators may alter their movement patterns to accommodate the increased presence of Project-related marine vessel traffic, and that marine vessels in Burrard Inlet may be the most affected. The increase in tankers may be perceived to affect the quality of recreational or tourism experiences and this may lead to avoidance of certain recreational marine areas near the shipping lanes. Aboriginal and non-Aboriginal participants, including Adam Olsen, Cowichan Tribes, the First Nations of Maa-nulth Treaty Society, Musqueam Indian Band, Tsawout First Nation, T’Sou-ke Nation, the Swinomish, Tulalip, Suquamish, and Lummi Indian Nations, Lyackson First Nation, and Unifor, raised concerns about the social and economic importance of commercial fisheries and seafood processing. They described their right to fish for commercial trade purposes, and the scope and extent of commercial fishing activities, including historical practices, frequented fishing areas, revenues and quotas. Many raised concerns that the increase in Project-related tankers, both in transit and while at anchor, may restrict the times and locations in which commercial fishing activities can take place or impede the ability of fishers to access fishing areas. Others expressed safety concerns about potential collisions with tankers and potential associated economic losses. North Shore No Pipeline Expansion (NS NOPE) said that Trans Mountain understated the number and frequency of pleasure boat traffic in the vicinity of the WMT, and failed to include an adequate assessment of impacts to recreational boater traffic or the risks of a tanker accident related to recreational boater traffic, including incidents resulting in bodily injury or death. Several participants also raised concerns regarding the impact that increased Project-related traffic will have on congestion at the Second Narrows, resulting in unsafe conditions for recreational vessels and delays. Trans Mountain said that it assessed the impact of Project-related marine traffic on the capacity of the Second Narrows Marine Restricted Area. It said there should be sufficient transit opportunities through the Second Narrows Marine Restricted Area to accommodate both Project related marine traffic, as well as other foreseeable commercial and recreational traffic on most days of the year. Trans Mountain said that there is potential for commercial fishers, and recreational and tourism users to experience increased sensory disturbance related to nuisance noise, visual effects and air quality associated with Project-related marine vessels transiting through the shipping lanes. However, once the tanker has passed, the nuisance effect will quickly decline. Several participants raised concerns regarding noise, vibration, odour and light emissions from the increase in Project-related vessels. Some intervenors said that the increased use of anchorages in Burrard Inlet and English Bay would detract from the experiences of other marine users and would negatively affect residents in nearby communities through increased noise and light. Others said that the increase in other activities, such as bunkering and increased use of escort vessels, would increase noise and air pollution for users. Several participants noted that increased marine vessel traffic from the Project may indirectly contribute to a decrease in marine tourism, even during normal operations, resulting in economic loss. Some participants referred to the reputation of B.C. as an international ecotourism destination, and questioned whether increasing oil tankers in B.C. coastal waters would present an unfavourable image of B.C. to the world. Trans Mountain said that any change in tourism patterns could have any number of contributing factors, and it is considered unlikely that increased Project-related marine vessel traffic under normal operating circumstances could be directly attributed to a decline in tourism, if one were to occur. To mitigate these effects and concerns, Trans Mountain committed to, among other measures, provide regular updated information to fishing industry organizations, shipping associations, including the Chamber of Shipping and CN Rail, Aboriginal communities and other affected stakeholders. It also committed to initiate a public outreach program prior to the Project operations phase to communicate information on Project-related timing and scheduling with affected marine users and Aboriginal groups.

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Trans Mountain said it supports the TERMPOL Report Recommendation 11, that Trans Mountain should provide input to the appropriate authorities for the development of an engagement and awareness strategy with respect to safety of navigation and prevention of collisions targeting recreational boaters, fishing vessel operators, and operators of small vessels. Trans Mountain also accepted Finding 20 regarding Trans Mountain’s commitment to provide financial support for an enhanced education campaign for small vessel operators about safe boating practices. Trans Mountain also said that Project-related marine vessels would be fully compliant with all applicable navigational, communications and safety regulations, including those of Transport Canada, the Canadian Coast Guard, the Pacific Pilotage Authority (PPA) and Port Metro Vancouver (PMV).

Views of the Board The Board acknowledges the many ways in which people use and enjoy the waters within the Project’s marine setting. The Board recognizes that Project-related vessels would pass through areas of great significance to Aboriginal groups, community members, tourists, and recreational users, among others. The Board is encouraged by Trans Mountain’s support of the TERMPOL Report Recommendation 11, and notes that it is a key measure to minimize the potential disruption to recreational boaters, fishing vessel operators, and operators of small vessels as a result of increased Project-related marine vessel traffic. The Board would impose Condition 131 requiring Trans Mountain to develop a public outreach program prior to Project operations in order to ensure that the program is designed in consultation with the Pacific Pilotage Authority and implemented in a manner that is appropriate to its intended audience. Many concerns raised by participants regarding marine shipping are under the jurisdiction of several federal and international authorities. The Board expects that Project-related marine vessels will be fully compliant with all applicable navigational, communications and safety regulations including those of Transport Canada, the Canadian Coast Guard, the Pacific Pilotage Authority and Port Metro Vancouver (PMV). With regard to the concerns raised by participants about noise and light from tankers docked at the PMV managed anchorages, the Board notes that all vessels at anchor within PMV’s jurisdiction are expected to adhere to PMV’s guidelines regarding noise and light pollution.

Heritage resources Several Aboriginal intervenors raised concerns regarding the impact to archaeological and cultural heritage sites as a result of increased Project-related marine vessel traffic. Pauquachin First Nation said that although the possible risk of Project-related vessel wake erosion is small, assuming the projected wake heights provided by Trans Mountain are accurate, it is possible that even small waves, combined with high tide and storms, may have a negative cumulative impact, particularly given the frequency and high volume of the predicted traffic. Several Aboriginal groups recommended that sites at potential risk due to erosion be visited, mapped, assessed and monitored over time to determine the current extent and ongoing rate of erosion and its impacts, and that a specific spill response plan with mitigation be developed. Trans Mountain said there are 81 previously recorded archaeological sites located in proximity to the marine vessel corridor. The combination of existing vessel traffic, Project-related vessel traffic and reasonably foreseeable vessel traffic will increase the frequency of wake waves interacting with the shoreline. Trans Mountain said that as wakes generated by vessels will be within natural wave size variation by the time they reach the shoreline, there is no discernible impact on shorelines associated with the shipping channel and, therefore, it did not complete an Archaeological Impact Assessment for the entire marine zone.

Views of the Board The Board accepts Trans Mountain’s evidence that Project-related vessel wake will not be detectable from existing wave conditions along the shoreline adjacent to the shipping lanes given vessel size and speed along with the channel depth and width. As such, the Board is of the view that there will not be an impact to archaeological sites located on the shoreline due to an increase in marine traffic, and, therefore, an Archaeological Impact Assessment was not required.

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The Board acknowledges that archaeological sites are of significance and value to Aboriginal groups. The Board encourages Aboriginal groups to share information regarding potential archaeological and cultural heritage sites with the B.C. Ministry of Forests, Lands & Natural Resource Operations.

Traditional marine resource use Trans Mountain conducted traditional marine resource use (TMRU) studies to evaluate the potential effects of Project-related marine vessel traffic on traditional resource use. The spatial and temporal boundaries used for the TMRU assessment are described in Appendix 11.

Methodology and scope of assessment Trans Mountain said the TMRU studies took place in coastal and international waters to provide information regarding the marine-based activities that participating Aboriginal communities undertake. The company said that the information collected in the TMRU studies was used to assess potential Project effects on travelways, plant gathering sites, hunting, fishing, gathering places and sacred areas. Trans Mountain said the results of the TMRU studies, and desktop analysis and literature review, indicate that Aboriginal groups have historically used and presently use the RSA to maintain a traditional lifestyle, and that they continue to use marine resources throughout the RSA for a variety of purposes. Trans Mountain said that this includes, but is not limited to fish, shellfish, mammal and bird harvesting, aquatic plant gathering, and spiritual/cultural pursuits, as well as the use of navigable waters within the RSA to access subsistence resources, neighbouring communities and coastal settlements. As part of its assessment, Trans Mountain prepared and submitted a supplemental TMRU report incorporating information from traditional marine resource use reports and related evidence filed directly with the Board by Aboriginal intervenors, or that were provided directly to Trans Mountain. Trans Mountain stated that the TMRU result and concerns raised by these Aboriginal communities are summarized in these reports. Trans Mountain said that the two indicators used to assess potential effects from increased Project- related marine vessel traffic on TMRU were subsistence activities and cultural sites. The company said that subsistence activities and sites represent the extensive land and water bases on which activities take place, and provide a broad view of where and how people move in the landscape, how they use it and where they inhabit it. The company said that cultural sites represent people’s long-term connection to the land and water, and include the ability to participate in and continue practices and activities conducted by past generations, and the ability to pass on the collective knowledge and use of the environment according to tradition. Trans Mountain noted that access to and continued use of cultural sites promotes cultural continuity, and that gathering areas and sacred areas are collective terms used to incorporate all types of sites unrelated to the acquisition of environmental resources. Aboriginal groups raised a numbers of concerns about Trans Mountain’s approach to assessing potential effects to TMRU, including cumulative effects. These included: • failure to conduct an effects assessment specific to each Aboriginal group’s areas of interest; • that the level of site-specific mitigation for TMRU was not sufficient, and should be developed in consultation with Aboriginal groups; • flaws in spatial scope identified for the Project; • failure to include the potential effects of increased Project-related marine vessel traffic on coastal habitation and cultural sites; and • Trans Mountain’s conclusion that there would be no significant adverse effects to traditional marine resource use, except potential adverse effects to traditional use of Southern resident killer whale populations. In response to the concerns raised by Aboriginal groups regarding its approach to assessing potential effects to TMRU, determination of significance, and proposed mitigation measures, Trans Mountain said that its assessment addresses the potential interactions identified by Aboriginal groups through the assessment of the likely effect of the Project on the environment and TMRU. Trans Mountain said it reviewed the findings of each TMRU report submitted by Aboriginal groups in the context of the assessment and determined that the significance conclusions with regard to TMRU remain unchanged by

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this evidence. In addition, Trans Mountain said that, where feasible, it identified mitigation to reduce the magnitude and duration of potential TMRU effects. Trans Mountain said that with respect to the size of the study areas that were used in the assessment, the spatial extent of the RSA represents a trade-off between choosing too large an area that would mask Project effects, versus choosing an area too small where the effects on the population under consideration might no longer be meaningful at a landscape scale. Several Aboriginal groups raised concerns regarding potential damage or erosion to coastal natural habitats/harvesting areas such as kelp beds and reefs, and culturally or spiritually sensitive shoreline areas as a result of Project-related vessel wake. Squamish First Nation said that Trans Mountain’s lack of assessment regarding these coastal sites represents an error in assessment scoping because it fails to consider the profound connections between land, sea, and culture of the Squamish Nation that are potentially affected by the Project. Trans Mountain said that due to the average channel width, and the relatively rapid rate at which wake waves decrease in height away from the transiting tankers and escort tugs, vessel wake is not expected to be detectable from existing wave conditions along most of the shoreline in the RSA. Therefore, it did not include the potential effects of Project-related marine vessel traffic on coastal habitation sites since it was not considered to interact with land-based activities.

Effects of Project-related marine vessel traffic on traditional marine harvesting and cultural activities Trans Mountain said that resources used and activities associated with TMRU are located within the RSA and situated along or near shipping lanes. Based on the results of the TMRU studies and the desktop analysis, travel corridors are essential for conducting traditional activities and accessing locations for traditional harvesting, and the shipping lanes must be traversed to access TMRU sites. Trans Mountain noted that subsistence harvesting and associated travel can occur within the RSA year round. Trans Mountain said that the potential effects of Project-related marine vessels on TMRU include the disruption of subsistence hunting, fishing, plant gathering activities, the disruption of use of travelways, and the disturbance of gathering places and sacred areas. Trans Mountain said that a disruption of subsistence activities may occur due to increased transit of Project-related marine vessel traffic through the RSA by restricting access to traditional use areas particularly if the resource users’ travel occurs at the same time and in the same location as the Project vessel’s transit. The company said that this could result in limiting the ability to harvest in certain areas, missed harvesting opportunities, or an increase in travel time to reach a destination, all which could reduce access to marine resources. Trans Mountain stated the magnitude of the effect is considered to be low, since it is expected that subsistence activities may be interrupted due to Project-related marine vessel traffic but the Project-related disruption would only be temporary and activities are likely to be resumed in most cases once the vessel has passed, and the frequency of Project-related marine vessels would be once a day. Trans Mountain said that sensory disturbance as a result of increased marine vessel traffic may deter resource harvesters from using areas or could influence the focus of the activity, particularly if the Project- related marine traffic occurs at the same time and place as the subsistence activities. Trans Mountain said that sensory disturbance due to increased marine vessel traffic may also result in disruption to cultural activities (e.g., gathering places, sacred areas), as well as influence the focus and intent of ceremonial activities. The company said this could result in choosing other locations for their traditional activities, and increased travel time to reach a destination. Trans Mountain said that there is a potential for increased disruption of traditional marine resource user activities from Project-related marine vessel wake, and increased potential for marine vessel collisions between Project-related vessels and traditional marine vessel traffic. The company said that such disruptions and collisions are considered to be unlikely due to adherence to regulatory standards and navigational and safety measures by most marine vessels. A collision event could result in lost opportunities for traditional resource harvesting may result if an incident occurs. Trans Mountain also said damage or loss to fishing vessels or fishing gear may result from interactions between Project-related marine vessels and traditional marine resource users’ fishing vessels. Trans Mountain said lost economic opportunities to marine users could result from: damage or loss of marine vessels; damage to fishing gear; injury; or

358 National Energy Board 000726 physical displacement of marine users from the presence of Project-related marine vessels in transit or occupying anchorages. Trans Mountain said that changes to the distribution and abundance of resources could result in loss or alteration of harvesting areas, which could result in indirect effects such as harvesters having to spend more time and money to travel further for subsistence activities. The results of effects assessments for marine mammals, marine birds and marine fish and fish habitat indicate that although there may be residual effects due to the increase in Project-related marine vessel traffic the effects are considered to be not significant, with the exception of Southern resident killer whales. Trans Mountain said it has been determined that there is a currently-existing significant adverse cumulative effect on this population and that while the endangered status of the Southern resident killer whale prohibits the current hunting of this species, historical data indicates that Southern killer whale populations were once, and may in future be, a traditionally harvested resource within the RSA. With the exception of effects on the Southern resident killer whale, Trans Mountain said the Project’s contribution to broader Aboriginal cultural effects related to change in traditional marine use patterns is considered not significant. Trans Mountain noted that some traditional resource use vessels may only be temporarily inconvenienced by the presence of Project-related marine vessels (low magnitude), but for others, fishing activities may be delayed (medium magnitude) since routes to fishing grounds may need to be altered, or fishers may not be able to fish in preferred locations due to increased Project-related marine vessel traffic. Trans Mountain said the combined effects from Project-related marine vessel traffic on TMRU are long- term and with a low to high magnitude given the predicted residual effects on the Southern resident killer whale population. It said effects are considered in the context of existing high-volume vessel activity within the RSA and an existing regulatory framework. Trans Mountain also said this takes into account the context of the availability of a traditionally harvested resource to meet the cultural and subsistence needs of potentially affected Aboriginal peoples. Trans Mountain said the combined residual effects associated with Project-related marine vessel traffic on TMRU are considered not significant, with the exception of the expected residual effects on the Southern resident killer whale population, which are considered to be significant. Trans Mountain said it assessed cumulative effects for marine transportation by considering projects that overlap with potential effects of Project-related marine vessel traffic. All components of the marine environment are understood to support the marine resource base and habitat conditions essential to the practice of traditional activities. As such, the potential cumulative effects on subsistence activities and sites were assessed in consideration of all pertinent biophysical resources known or assumed to be of importance to Aboriginal communities for traditional use, as well as in consideration of the existing high volume of large vessel traffic within the RSA. Trans Mountain said that increased marine vessel traffic is likely to increase congestion in areas that are geographically constrained and already experience high marine traffic volumes and may potentially cause some traditional marine users to avoid these areas or to alter their preferred routes due to sensory disturbance from transiting marine vessels. Trans Mountain said that a significant adverse total cumulative effect is predicted for traditional use of Southern resident killer whales due to existing marine shipping activities that will continue with or without the Project, however, total cumulative effects on other traditional marine resources and indicators, and the Project contribution to those effects, are concluded to be not significant.

Marine Shipping impacts on TMRU provided by Aboriginal groups Several Aboriginal communities and Adam Olson expressed the importance of their continued ability to exercise their Aboriginal rights to fish, harvest, and hunt throughout their respective traditional territories within the RSA. The information provided by Aboriginal intervenors described the scope and extent of their activities, and focused on how communities and individuals use the lands, waters, and their respective resources to exercise their claimed or established Aboriginal and treaty rights. This included information about food harvesting activities (primarily relating to fishing, but also hunting, trapping, medicinal herbs, and plant and berry gathering), as well as the cultural importance of these activities.

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Aboriginal groups described the traditional methods of fishing, the important role the harvesting sites and camps play in passing traditional knowledge on to future generations, how food is prepared and stored, and the sharing, trading, and feasting that comes after foods are harvested. They also described how their cultural systems, practices, and stewardship are inextricably connected to the traditional use of the lands and the waters. They included specific information on annual and seasonal harvesting locations and species used by Aboriginal groups for the activities described, how the needs of that community continued to be met by these activities, as well as specific sites that are of cultural or spiritual importance to potentially affected Aboriginal groups. Several Aboriginal groups, including Cowichan Tribes, Scia’new First Nation, Ditidaht First Nation, Esquimalt Nation, Pacheedaht First Nation, Lyackson First Nation, Tsawout First Nation, T’Souke First Nation, Squamish First Nation, Musqueam First Nation, Tsartlip First Nation and Tsleil-Waututh Nation, said that existing levels of large ship traffic and industrialization have already reduced the ability to harvest in the certain areas, and reduced the frequency of interactions with mainland nations for cultural, ceremonial and economic reasons. They also raised concerns about the effects of existing development on the health of the ecosystems and resources harvested and their cultural and spiritual well-being. Lyackson First Nation said that it estimates more than 50 per cent of their salmon harvest relies on transit of the Salish Sea and the Fraser River. T’Souke First Nation characterized the ongoing impact of cumulative effects in the T’Sou-ke territory as “death by a thousand cuts” or the “tyranny of small decisions” carried out over generations affecting the T’Sou-ke Nation’s traditional mode of life, including its ability to maintain the sustainability of traditional marine resources to a level adequate to ground T’Sou-ke Nation’s cultural connection to its territory. Several Aboriginal groups, including Esquimalt First Nation and Stz’uminus First Nation expressed concern that accessing marine harvesting, and cultural and spiritual sites will be further restricted as a result of increased Project-related marine traffic. Aboriginal groups, including Tsleil-Waututh Nation, T’Sou-ke First Nation and Pacheedaht First Nation, described how a disruption or reduction to traditional travelways would represent a loss of cultural expression and identity, as well as a loss of teaching opportunities for youth. Aboriginal groups, including Tsleil-Wauthuth Nation, Scia’new First Nation and Lyackson First Nation, expressed concerns that noise from Project-related vessel traffic would impact cultural heritage and activities by disrupting ceremonial activities, alienating members from some parts of their territory, complicating ties with other First Nations communities, and exposing territory, including sacred sites, to Project-related risks They said that the Project-related vessel traffic would create loss of privacy and quiet for cultural and sacred practices. Aboriginal groups noted concerns regarding marine safety. Aboriginal groups, including Esquimalt First Nation, Pacheedaht First Nation and Ditidaht First Nation, said that increased tanker traffic would threaten marine safety, presenting increased risks of collisions between tankers and smaller traditional resource use vessels. They explained that a collision could result in damage to vessels or gear utilized to exercise harvesting rights. Tsleil-Waututh Nation said the increased shipping associated with the Project could physically curtail their ability to travel around the inlet in small vessels. Lyackson First Nation said they were concerned with the increased risk of accident and interference with small boat navigation including canoes and subsistence fishing boats. Several Aboriginal groups raised concerns with respect to the alteration of subsistence resources as a result of increased Project-related vessels. The Aboriginal groups said that an increase in tanker traffic will alter subsistence hunting and fishing resources by changing wildlife behaviour and migration routes. This would have a negative impact on their ability to harvest these resources. A number of Aboriginal groups raised concerns about the increased tanker traffic at Swiftsure Bank, which has been a shared fishing area for centuries. These Aboriginal groups said studies should look at weather extremes including full stochastic modelling of extreme wind and wave conditions.

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Southern resident killer whale A number of Aboriginal groups expressed concern about the social and cultural effects that would result from impacts of marine shipping on the Southern Resident Killer Whale. Tsawwassen First Nation stated it does not have a history as a whaling nation but has strong cultural ties to killer whale. The species figures prominently in the stories of Tsawwassen First Nation citizens and the Tsawwassen have adorned their ocean-going canoe with an image of the killer whale. Tsawout First Nation said there are clans and families that are connected to killer whales, and the impacts and loss of whales in their territories is a loss to those clans and families. Pacheedaht First Nation said that increased tanker traffic will further impact the recovery of the killer whales. Given the importance of killer whales to their culture, this was a serious concern to Pacheedaht First Nation. T’Sou-ke First Nation said adverse effect on a key resource such as killer whale could have catastrophic ripple effects on their rights, title and sense of identity as Aboriginal peoples of Canada. Tsartlip First Nation said killer whales are culturally and spiritually important to Tsartlip people. Tsartlip First Nation described the profound spiritual importance of killer whales to their people, their relationship with them, and their obligation to protect them.

Mitigation To mitigate the effects and concerns regarding traditional marine harvesting and cultural activities, Trans Mountain committed to, among other measures, provide regular updated information on Project-related marine vessel traffic to Aboriginal communities. It also committed to initiate a public outreach program prior to the Project operations phase to communicate information on Project-related timing and scheduling with Transport Canada, the Canadian Coast Guard, the Chamber of Shipping for British Columbia, commercial and tourism associations, and potentially affected Aboriginal groups. Trans Mountain said that Project-related marine vessels would be fully compliant with all applicable navigational, communications and safety regulations, including those of Transport Canada, the Canadian Coast Guard, the PPA and PMV. Trans Mountain said it has identified mitigation to reduce the magnitude and duration of potential effects, where feasible. However, Trans Mountain said that as the shipping industry follows internationally and federally regulated guidelines and rules (such as the use of the international shipping lanes for routing and the use of pilots during transit), the company said there is limited ability for any tanker or vessel to alter route or schedule. Trans Mountain stated that all Aboriginal groups will be invited to attend regional EPP workshops where mitigation measures and monitoring programs will be discussed. With respect to the Southern resident killer whale, Trans Mountain committed to developing a Marine Mammal Protection Program with a purpose of outlining Project-related tanker specific measures and regional collaborative initiatives that would be implemented by Trans Mountain and other operators along the marine shipping lanes to mitigate and manage potential environmental effects on marine mammals. With respect to Swiftsure Bank, Trans Mountain acknowledged its importance to Aboriginal communities, and recognizes that the shipping lanes cross over Swiftsure Bank. Trans Mountain said it will raise awareness amongst Project tankers about conditions near Swiftsure Bank in its Port Information and Terminal Operations Manual.

Views of the Board The Board acknowledges that uses, practices and activities such as hunting, fishing, harvesting, plant gathering and the use of cultural sites are very important for Aboriginal groups along the coastal areas of B.C. These uses, practices and activities are undertaken for both subsistence and traditional cultural purposes, and are important for maintaining Aboriginal cultures and transmitting these across generations. The Board also acknowledges the significant and detailed evidence provided by Aboriginal groups about their use of the marine environment where Project-related marine vessel traffic is proposed to take place. The Board considered all of the evidence provided by Aboriginal groups, Trans Mountain and other participants on these matters. The Board is of the view that, for the purposes of assessing the potential effects of Project related marine traffic on traditional marine use, the methodology used by Trans Mountain was appropriate

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and effective for identifying and evaluating the Project-related potential effects. Trans Mountain identified components of the marine environment that are understood to support the marine resource base and habitat conditions essential to the practice of traditional use, practices and activities, and that potential residual effects were assessed in consideration of pertinent biophysical resources known or assumed to be of importance to Aboriginal communities for traditional use. TMRU studies completed by Aboriginal groups provided information on impacts of Project-related marine traffic in the shipping lanes on subsistence sites and resource use. In its supplemental technical reports on TMRU, Trans Mountain incorporated the results of TMRU studies filed by Aboriginal groups, and described mitigation for the effects and concerns raised. The Board finds that Project-related vessel wake will not be detectable from existing wave conditions along the shoreline adjacent to the shipping lanes based on Trans Mountain’s predicted wake wave height modelling. As Project-related vessel wake will be of the same magnitude as existing wave conditions along the shoreline adjacent to shipping lanes, the Board also finds that Project-related marine vessels are unlikely to result in any measurable changes to coastal habitats, harvesting and culturally sensitive areas. The Board notes Trans Mountain’s commitments to provide regular updated information on Project- related marine vessel traffic to Aboriginal communities, and to initiate a public outreach program prior to the Project operations phase to communicate information on Project-related timing and scheduling with Transport Canada, the Canadian Coast Guard, the Chamber of Shipping for British Columbia, commercial and tourism associations, and potentially affected Aboriginal groups. The Board also notes Trans Mountain’s commitment to raise awareness amongst Project-related tankers about conditions near Swiftsure Bank in its Port Information and Terminal Operations Manual. With respect to the effects of Project-related marine vessel traffic on traditional marine resource uses, activities and sites, the Board finds that there will be disruptions to Aboriginal marine vessels and harvesters, and that this may disrupt activities or access to sites. The Board is of the view that these disruptions will be temporary, only occurring during the period of time when Project-related tanker vessels are in transit. The Board is of the view that Aboriginal marine vessel users will maintain the ability to continue to harvest marine resources and to access subsistence and cultural sites in the presence of these periodic and short-term disruptions. The Board therefore finds that, with the exception of effects on the Southern resident killer whale, the magnitude of effects of Project-related marine vessel traffic on traditional marine resource uses, activities and sites is low. Given the low frequency, duration and magnitude of effects associated with potential disruptions, and Trans Mountain’s commitments to provide regular updated information on Project related marine vessel traffic to Aboriginal communities, the Board finds that adverse effects on traditional marine resource uses, activities and sites is not likely, and that overall, Project-related marine traffic’s contribution to overall effects related to changes in traditional marine use patterns is not likely to be significant. The Board is also of the view that Project-related marine traffic’s contribution to cumulative effects is of low to medium magnitude and reversible in the long-term. The Board therefore finds significant adverse cumulative effects associated with Project-related marine vessel traffic on TMRU are not likely to be significant, with the exception of effects associated with the traditional use of the Southern resident killer whale, which are considered significant. The Board acknowledges the concerns raised by Aboriginal groups about marine safety, increased congestion of marine vessel traffic, and potential disruptions that may occur as a result of vessel collisions. This potentially includes damage to or loss of fishing gear, or vessel damage or loss in the event of a direct collision. While there is concern about interactions between Project-related marine vessels and traditional fishing vessels, the Board is of the view that disruptions that may result from interference or collisions with Project-related vessels are considered to be unlikely due to adherence to regulatory standards and navigational and safety measures by marine vessels. The Board is also of the view that that any disruptions to Aboriginal marine vessel users that would result from Project- related Marine vessel traffic would be temporary, that the frequency of Project related marine vessels would be one return transit per day, and that all other marine vessels, including Aboriginal marine vessel users, would be able to continue their movements very shortly after the transit of the tanker. In the unlikely event of a collision or damage to or loss of fishing gear, a comprehensive scheme of compensation would be available. Further information on financial responsibility and compensation is discussed in section 14.7.

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The Board finds, as described in its views in this chapter on marine mammals, that the increase in marine vessel traffic associated with the Project is likely to result in significant adverse effects on the Southern resident killer whale. The Board finds that Project-related marine vessel traffic would further contribute to total cumulative effects which are determined to be significant, with or without the Project. Given these conclusions and recognizing the stated cultural importance of the killer whale to certain Aboriginal groups, the Board finds that the increase in marine vessel traffic associated with the Project is likely to result in significant adverse effects on the traditional Aboriginal use associated with the Southern resident killer whale. As noted in the section in this chapter on marine mammals, Trans Mountain committed to developing a Marine Mammal Protection Program. One of the objectives of the Marine Mammal Protection Program would be to encourage participation in multi-stakeholder or independent initiatives that contribute to Southern resident killer whale recovery. The Board encourages these initiatives, and those of the Government of Canada, to prioritize and implement specific measures to promote the recovery of the Southern resident killer whale.

Human health effects from marine shipping Trans Mountain estimated the potential effects on human health from the routine operations of marine transportation associated with the Project. Trans Mountain said it followed a conventional risk assessment paradigm, which is an approach endorsed by a number of federal, provincial and regional regulatory health authorities, including Health Canada, Environment and Climate Change Canada (ECCC), the Canadian Council of Ministers of the Environment (CCME) and B.C. Ministry of Environment (BC MOE). The spatial boundaries for Trans Mountain’s assessment of human health effects of marine transportation are described in Appendix 11, and included the inbound and outbound marine shipping lanes, the area between the shipping lanes, where it exists, and a 5 km buffer extending from the outermost edge of each shipping lane. Trans Mountain said for the purposes of its assessment, the shipping lanes were divided into four distinct regions: Burrard Inlet; Strait of Georgia; Boundary Passage and Haro Strait; and Juan de Fuca Strait. Trans Mountain said of these, only Burrard Inlet revealed some potential exceedances of contaminants that may affect human health and therefore this was the only region carried forward for detailed assessment. Trans Mountain said specific consideration was given to Aboriginal peoples because of the unique opportunities for chemical exposures that might occur through traditional Aboriginal practices, including the consumption of traditional foods such as game meat, fish, beach food and wild plants. Trans Mountain said it evaluated potential health risks that could result from exposure to the chemical emissions originating from Project-related marine vessel traffic. Trans Mountain considered the potential effects on people living within the assessed area boundaries, on those who might frequent these areas for recreation or other purposes, as well as how age, gender or health status may affect people’s vulnerability to potential effects. Trans Mountain said it used exposure limits to assess the potential health effects that could result from short-term and long-term exposure to the various chemical emissions associated with Project-related marine transportation. Reliance was placed on exposure limits developed or recommended by regulatory authorities or reputable scientific authorities for the protection of human health. These included, among others, those available from Health Canada, the BC MOE, the United States Environmental Protection Agency (US EPA) and the World Health Organization (WHO). Trans Mountain said it assessed short-term (acute), long-term (chronic) and cumulative exposure scenarios, and considered the potential health risks associated with the chemicals of potential concern (COPC) acting either singly or in combination (i.e., chemical mixtures). Inhalation was considered the primary exposure pathway, but it also considered secondary pathways including food ingestion and skin contact. Trans Mountain said that due to strict regulations prohibiting the release of untreated bilge water and ballast water under routine operating conditions, releases to water were not considered.

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Acute effects Trans Mountain said the maximum predicted acute exposure to the COPC (acting either singly or in combination) were below their exposure limits, with the exception of short-term inhalation of nitrogen

dioxide (NO2) and the respiratory irritants mixture. For acute exposure to NO2, Trans Mountain said no exceedances were predicted for residents within the communities surrounding Burrard Inlet, or for the area users frequenting the provincial parks. The company said exceedances only were predicted at an isolated location along the water’s edge of Burrard Inlet within the perimeter of another industrial facility, where public access will be restricted.

Trans Mountain said the risk estimates for short-term inhalation of NO2 did not change between the assessment cases (i.e., base, application and cumulative cases), indicating that the incremental change associated with the Project-related marine vessel traffic will have very little, if any, effect on the health risks

associated with short-term exposure to NO2. Trans Mountain said that short-term exceedances were predicted for the respiratory irritants mixture across all the assessment cases for the residents of the Squamish Nation at Capilano 5, and for the District of North Vancouver. Exceedances were not predicted at any of the other Aboriginal communities (i.e., Tsleil-Waututh First Nation at Burrard Inlet 3 and Squamish Nation at Seymour Creek 2, Kitsilano 6 and Mission 1). Trans Mountain said the incremental changes as a result of COPC emissions from the marine vessel traffic associated with the Project and the reasonably foreseeable increase in other marine vessel traffic are essentially negligible, and that the Project will have very little, if any, impact on health risks associated with short-term exposure to the respiratory irritants at these locations. The company concluded that, overall, adverse health effects from acute exposures would not be expected.

Chronic effects Trans Mountain said that, for chronic effects via the primary inhalation pathway, in all cases the maximum predicted air concentrations of the COPC (acting either singly or in combination) associated with the Project were lower than the corresponding exposure limits. Trans Mountain concluded long-term health risks associated with the COPC exposures are considered negligible or low, and adverse health effects from the long-term inhalation of the COPC associated with the Project-related marine vessel traffic are not expected. Trans Mountain said the potential health risks associated with Project-related marine vessel traffic via the relevant secondary exposure pathways were also examined. The company said that potential chronic multiple pathway health risks were estimated based on the assumption that residents would be continuously exposed for an assumed lifespan of 80 years. Trans Mountain said that in all cases the maximum predicted exposures through the secondary pathways of the COPC (acting either singly or in combination) were lower than the corresponding exposure limits, and that long-term health risks are therefore considered negligible or low, and adverse health effects from the inhalation of dust, food ingestion, and dermal contact are not expected. Trans Mountain said the high degree of conservatism incorporated into both the exposure estimates and the exposure limits must be considered in the interpretation of the exceedances, and that based on the weight of evidence, it is unlikely that people would experience health effects as a result of the potential increase in Project-related marine vessel traffic.

Cumulative effects Trans Mountain said the RSA was used for the purposes of assessing the cumulative health effects associated with the chemical emissions from increased Project-related marine vessel traffic. It said the contribution from Project-related marine vessel traffic to the cumulative exposure to COPCs was negligible. Trans Mountain said in the majority of instances, the potential health risks remained unchanged between the cases, indicating that Project-related marine vessel traffic will have very little, if any, effect on the base case health risks or cumulative exposure contributions A number of participants raised concerns regarding Trans Mountain’s assessment of the potential effects on human health resulting from Project-related marine traffic.

364 National Energy Board 000732

Burnaby Residents Opposed to Kinder Morgan Expansion (BROKE) said that Trans Mountain did not adequately assess the human health risks, including acute and chronic health effects of exposure to benzene and 1,3-butadiene. BROKE said additional information to understand the human health impacts in the area surrounding the terminal and the exit for ships through the First and Second Narrows is needed to better understand the impacts, and should include a focus on those most vulnerable to exposure to benzene and 1,3-butadiene, such as young children and those with genetic susceptibility to carcinogens. BROKE and North Shore No Pipeline Expansion (NS NOPE) expressed concern over the potential human health effects associated with short-term and long-term exposure to benzene, including as part of a mixture with 1,3-butadiene. Living Oceans Society raised concern that the maximum predicted ground-level air concentrations of benzene in Burrard Inlet area would exceed the national one-hour Ambient Air Quality Objective (AAQO) for benzene. In response to concerns about the potential effects of butadiene, for acute exposure to 1,3-butadiene, Trans Mountain said the predicted 24-hour air concentrations for the three assessment cases (i.e., Base Case, Application Case and Cumulative Case) were compared with the acute (24-hour) exposure limit or Reference Concentration developed by the U.S. EPA for the protection of the human population (including sensitive individuals) against the potential reproductive and developmental effects associated with short-term inhalation of 1,3-butadiene. Trans Mountain said that chronic health risks were assessed by comparing the maximum predicted annual air concentrations for the three assessment cases (i.e., Base Case, Application Case and Cumulative Case) to the U.S. EPA’s chronic Reference Concentration for the potential reproductive and developmental effects associated with long-term inhalation of 1,3-butadiene (U.S. EPA 2002a). The potential cancer risks, specifically the risk of developing leukemia, also were assessed. Trans Mountain said that in all instances, cancer risks for 1,3-butadiene were predicted to be less than 1 in 100,000, indicating that the incremental cancer risks from the Project-related increase in marine vessel traffic are deemed to be “essentially negligible.” It said the contribution from the Project-related marine vessel traffic to the cumulative 1,3-butadiene exposures was negligible, and that in all instances, the potential health risks remained unchanged between the Base Case and Application Case, signifying that the Project-related marine vessel traffic will have very little, if any, effect on the Base Case health risks associated with 1,3-butadiene exposure. With respect to benzene, Trans Mountain said it used the acute health-based exposure limit developed by the Texas Commission on Environmental Quality (TCEQ) for benzene rather than Alberta’s one hour AAQO for benzene as the latter did not satisfy the requirement for adequate supporting documentation. Nonetheless, Trans Mountain said it committed to meeting the lowest applicable AAQO established in B.C. or Alberta at each terminal, including Alberta’s one-hour AAQO for benzene. Trans Mountain said the findings of its HHRAs indicate that adverse health effects from short-term and long-term exposure to benzene are not anticipated as a result of the Project-related marine vessel traffic. In all cases, the potential health risks associated with short-term and long term inhalation of benzene were below the benchmark (or target risk estimate) of 1.0, indicating that the predicted peak hourly and annual average air concentrations of benzene were below the corresponding exposure limits. Trans Mountain also said incremental lifetime cancer risks associated with Project-related marine vessel traffic were predicted to be less than 1 in 100,000 (i.e., less than one extra cancer case in a population of 100,000 people). This indicates that the incremental cancer risks from the Project-related marine vessel traffic are deemed to be “essentially negligible.” Trans Mountain said benzene was assessed in the acute immunotoxicants mixtures, and in assessment of chronic effects, benzene was included in both the immunotoxicants and hematotoxicants mixtures. It said the potential health risks for each of the mixtures was predicted to be below the target risk estimate of 1.0, indicating that adverse health effects from short-term and long-term exposure to the immunotoxicants and hematotoxicants mixtures, of which benzene is a constituent, would not be anticipated. Trans Mountain concluded that overall, the absence of adverse health effects associated with the Project and Project-related marine vessel traffic applied whether benzene was assessed on an individual basis or as part of a mixture. Living Oceans said Trans Mountain’s assessment does not provide the information needed to adequately assess the human health risks, and significantly underestimates the impact of operations on air quality.

Trans Mountain Expansion Project 2016 365 000733

Living Oceans said that where emissions exceed exposure limits, such as for the respiratory irritants mixture, these emissions should be mitigated to improve air quality and reduce human health risks. The Upper Nicola Band and Tsawout First Nation said that Project components, including the incremental

tanker and tug traffic associated with the Project, would release sulphur dioxide (SO2), nitrogen oxides

(NOX), and particulate matter (PM10; PM2.5) that affect human health, and that exposure to these pollutants can cause respiratory and heart health effects and increase mortality rates in humans. Living Oceans raised

concerns regarding emissions from tugs and tankers, and that exceedance of air quality limits for NOx and

SO2 will occur along the tanker route, and produce plumes that potentially affect long sections of coastline. Health Canada said the information provided by Trans Mountain suggests that overall, there is low likelihood for acute and chronic health effects due to Project air emissions, including effects due to Project- related marine vessel emissions. Most of the health risks appear to be a result of the ambient air quality, since there are minor changes in health risk estimates for the base, applicat ion, and cumulative cases. However Health Canada said deficiencies identified by a number of participants regarding the air dispersion modelling affected its level of confidence, and that individuals with existing respiratory or cardiovascular conditions may experience reactions to even small changes in Project-related emissions. Health Canada said it supports Trans Mountain’s commitment to continuous improvement in the implementation of efficient emission control measures and air quality monitoring to manage the health risks due to changes in air quality. In response to these concerns, Trans Mountain noted that the results of additional air dispersion modelling for marine transportation present the predicted peak 24-hour and maximum annual concentrations for

PM2.5 and PM10 under the Base Case, Application Case and Cumulative Case, and that the revised results are lower than those assessed in the HHRA of marine transportation. The company said the results of the additional air dispersion modelling for PM do not affect the conclusions of the HHRAs in that they continued to show a low potential for adverse health effects as a result of the Project and Project-related marine vessel traffic. Trans Mountain said the results of its HHRA of marine transportation revealed exceedances of the one hour

Metro Vancouver AAQO for NO2 under each of the assessment cases (i.e., Base Case, Application Case and

Cumulative Case). However, it said maximum predicted annual average air concentration for NO2 within the LSA for marine transportation (i.e., 5-km buffer extending from the outermost edge of each shipping lane within Burrard Inlet) was below Metro Vancouver’s annual AAQO, suggesting that adverse health effects

associated with long-term exposure to NO2 are not expected. Trans Mountain also noted that the results of

additional air dispersion modelling show a peak predicted one-hour concentration for NO2 of 186 μg/m³ for the Base Case, Application Case and Cumulative Case, and this predicted peak is below the one-hour Metro Vancouver AAQO. Trans Mountain said for these reasons, the risk of people experiencing adverse health

effects within the LSA for marine transportation from the short-term inhalation of NO2 is low.

Trans Mountain said the findings of the HHRAs indicate that adverse health effects from SO2 exposure associated with Project-related marine vessel traffic are not anticipated. In all assessment cases (i.e., Base Case, Application Case and Cumulative Case), the predicted health risks associated with short-

term exposure to SO2 were below the benchmark (or target risk estimate) of 1.0, indicating that peak

predicted 10-minute and one-hour air concentrations for SO2 were less than the corresponding exposure limits. The company also noted that the air dispersion modelling that formed the basis of the HHRAs did not take into account the more stringent fuel sulphur regulations that were introduced in January 2015. Under these regulations, the maximum sulphur content in fuel oils within ECAs is 0.1 per cent. Inclusion of

the lower sulphur fuel content into air dispersion modelling would serve to reduce the SO2 emissions from

marine vessels and subsequently the predicted air concentrations of SO2 in the Burrard Inlet area.

Views of the Board The Board is of the view that for the purposes of assessing the potential effects on human health resulting from Project-related marine shipping, Trans Mountain followed a generally acceptable risk assessment paradigm, and that its assessment adequately identified and evaluated the potential effects on human health from Project-related marine shipping. The Board notes that Trans Mountain relied primarily on the use of exposure limits developed or recommended by authorities such as

366 National Energy Board 000734

Health Canada and the United States Environmental Protection Agency (US EPA). The Board finds this approach acceptable, as these guidelines are broadly protective of human health. The Board acknowledges that several Aboriginal groups, municipalities and federal departments expressed concerns that the potential emissions associated with Project related marine vessel traffic could affect human health. The Board acknowledges that there would be minor predicted exceedances of the short-term exposure limits for respiratory irritants at the Squamish Nation Capilano 5 reserve and for the District of North Vancouver. The Board notes, however, that these predicted exceedances occurred through all of the assessment cases examined by Trans Mountain. Therefore, the Board is of the view that the contributions of Project-related marine traffic to these exceedances would be inconsequential and not likely to cause significant adverse effects on human health. A number of intervenors raised concerns regarding the potential health risks associated with exposure to chemicals of potential concern (COPCs) including benzene and 1,3-butadiene. The Board considered these concerns, the evidence of intervenors and the applicant. The Board finds that, based on the generally accepted methodologies used by Trans Mountain, the potential health risks associated with long-term inhalation of chemicals, such as benzene, were below the corresponding exposure limits, and that this applied whether benzene was assessed on its own or as part of a mixture of chemicals. The Board therefore finds that for long-term exposure risks associated with Project-related marine shipping, the maximum predicted concentrations of carcinogenic and non-carcinogenic chemicals, including benzene and 1.3-butadiene, are likely to be lower than the corresponding exposure limits developed by Health Canada and other authorities and, therefore, are not likely to cause significant adverse effects on human health. The Board acknowledges the relevant conclusions drawn in this chapter on air emissions that, although Project-related marine shipping is expected to result in increased emissions in the Regional Study Area (RSA), such emissions are expected to remain below applicable ambient air quality objectives. As discussed in the section in this chapter on marine air emissions, the Board finds that

Trans Mountain’s predicted concentrations for both PM2.5 and nitrogen dioxide emissions at the Tsleil-Waututh Nation’s Burrard Inlet No. 3 reserve, as a result of Project-related marine shipping, are well below the applicable objectives. The Board notes Trans Mountain’s commitment to discuss the possibility of undertaking an ambient survey on Tsleil-Waututh Nation’s reserve lands. The Board is not persuaded that a program to monitor air contaminants at or adjacent to Tsleil-Waututh Nation’s reserve is warranted at this time. The Board acknowledges that there is an existing regulatory regime governing air emissions from tankers underway or in transit. Trans Mountain would require Project related tankers and barges to follow international and federal regulations and apply best practices during operations. Under Transport Canada’s Vessel Pollution and Dangerous Chemicals Regulations pursuant to the Canada Shipping Act, these tankers would be required to carry onboard a volatile organic compound management plan that meets the requirements of the International Convention for the Prevention of Pollution from Ships. As stated in Chapter 10, the Board would impose Condition 52 requiring Trans Mountain to develop an air emissions management plan for the Westridge Marine Terminal. Monitoring conducted pursuant to this plan would verify predicted emissions levels, and would require Trans Mountain to implement appropriate mitigation if there are exceedances of criteria established within the approved plan. Considering that Trans Mountain will be required to adhere to all federal and international emission requirements to reduce emissions from the Project-related marine shipping, the Board finds that the residual effects from Project-related marine shipping is not likely to cause significant adverse effects on human health, including the health of Aboriginal people.

Trans Mountain Expansion Project 2016 367 000735

Court File No. ______

FEDERAL COURT OF APPEAL

BETWEEN:

RAINCOAST CONSERVATION FOUNDATION and LIVING OCEANS SOCIETY

Applicants

AND:

ATTORNEY GENERAL OF CANADA and TRANS MOUNTAIN PIPELINE ULC

Respondents

APPLICATION UNDER SECTION 28 OF THE FEDERAL COURTS ACT, RSC 1985, c F-7

[PROPOSED] NOTICE OF APPLICATION

TO THE RESPONDENTS:

A PROCEEDING HAS BEEN COMMENCED by the applicants. The relief claimed by the applicants appears on the following pages.

THIS APPLICATION will be heard by the Court at a time and place to be fixed by the Judicial Administrator. Unless the Court directs otherwise, the place of hearing will be as requested by the applicants. The applicants request that this appeal be heard at the Federal Court of Appeal in Vancouver, British Columbia.

IF YOU WISH TO OPPOSE THIS APPLICATION, to receive notice of any step in the application or to be served with any documents in the application, you or a solicitor acting for you must prepare a notice of appearance in Form 305 prescribed by the Federal Courts Rules and serve it on the applicants’ solicitor, or where the applicant is self-represented, on the applicant, WITHIN 10 DAYS of being served with this notice of application.

Copies of the Federal Courts Rules, information concerning the local offices of the Court and other necessary information may be obtained on request to the 000736 2

Administrator of this Court at Ottawa (telephone 613-992-4238) or at any local office.

IF YOU FAIL TO OPPOSE THIS APPLICATION, JUDGMENT MAY BE GIVEN IN YOUR ABSENCE AND WITHOUT FURTHER NOTICE TO YOU.

Date: ______Issued by: ______

Address of local office: Federal Court of Appeal 635 Eighth Avenue S.W. Calgary, Alberta T2P 3M3

TO: ATTORNEY GENERAL OF CANADA c/o Department of Justice Canada British Columbia Regional Office 840 Howe Street, Suite 900 Vancouver, BC V6Z 2S9 Tel: (604) 666-0110 Fax: (604) 666-1585

TRANS MOUNTAIN PIPELINE ULC c/o Osler, Hoskin & Harcourt LLP Suite 2500, TransCanada Tower 450 – 1 Street SW Calgary, AB T2P 5H1 Tel: (403) 260-7003/7038 Fax: (403) 260-7024

000737 3

APPLICATION

Overview

This is an application for judicial review of an order of the Governor in Council, Order in Council P.C. 2019-820, made on June 18, 2019 and published in a supplement to the Canada Gazette, Part I, Vol. 153, No. 25, on June 22, 2019 (the “Order in Council”), with respect to the Trans Mountain Expansion Project (the “Project”). The Order in Council:

(a) decides that the Project is likely to cause significant adverse environmental effects under CEAA 2012, c 19, s 52 (“CEAA 2012”), on, among other things, the endangered Southern Resident Killer Whales (the “Southern Residents”), and it further decides that those effects are justified in the circumstances; (b) directs the National Energy Board to issue a decision statement concerning the Project, directs the Board to issue a certificate of public convenience and necessity to Trans Mountain Pipeline ULC (“Trans Mountain”) in respect of the proposed construction and operation of the Project, subject to the terms and conditions set out in the Reconsideration Report. In making the Order in Council, the Governor in Council relied in part on a report of the Board (the “Reconsideration Report”), which failed to comply with the legal duties set out in the Species at Risk Act, SC 2002, c 29 (“SARA”). These duties include ensuring measures to avoid or lessen the Project’s adverse effects on federally protected species at risk. The Governor in Council also failed to comply with SARA duties, and instead unlawfully decided that the significant adverse environmental effects of Project-related marine shipping on the Southern Residents could be justified under CEAA 2012.

Application

The applicants make application for:

1. An order or orders: 000738 4

(a) declaring that the Board did not meet the requirements of SARA;

(b) declaring that the Governor in Council failed to ensure that the requirements of SARA were met before issuing the Order in Council;

(c) declaring that the Governor in Council had no jurisdiction to issue the Order in Council until the requirements of SARA were met;

(d) declaring that the Governor in Council had no jurisdiction under CEAA 2012 to decide that the Project’s significant adverse environmental effects on the SARA-listed endangered Southern Residents are justified in the circumstances;

(e) declaring that the Board’s decision to exclude the adverse effects of Project-related marine shipping on SARA-listed marine species beyond the 12-nautical-mile territorial sea limit out to the limit of Canadian jurisdiction at the edge of the exclusive economic zone from its assessment under CEAA 2012 was unreasonable;

(f) quashing the Order in Council and remitting it to the Governor in Council for redetermination in accordance with the Court’s directions;

(g) declaring that the Certificate is a nullity;

(h) prohibiting any person or body from issuing any other authorization for any aspect of the Project until the requirements of SARA are met; and

(i) quashing any such authorizations issued before the Court reaches a decision in this matter.

2. Costs of this application.

3. In the event that this application is dismissed, an order that the applicants shall not be required to pay costs to the respondents, pursuant to Rule 400 of the Federal Courts Rules.

4. Such further and other relief as this Honourable Court may deem just.

000739 5

The grounds for the application are as follows:

The parties

1. The applicants Raincoast Conservation Foundation and Living Oceans Society are not-for-profit organizations. The applicants participated as intervenors in the Board’s initial review of the Project, concluded in May 2016, as well as the Board’s reconsideration review of the effects of Project-related marine shipping (“the Reconsideration”), concluded in February 2019. Through both review processes the applicants focused on the effects of Project-related marine shipping, with particular focus on impacts on SARA-listed marine species such as the Southern Residents.

2. The Attorney General of Canada is named as a respondent pursuant to Justice Sharlow’s July 23, 2014 Practice Direction – Applications for leave to apply for judicial review under subsection 55(1) of the National Energy Board Act, of an order of the Governor in Council made under subsection 54(1) of the National Energy Board Act (the “Practice Direction”).

3. Trans Mountain is the Project’s proponent, and is named pursuant to the Practice Direction, and pursuant to Rule 303 of the Federal Courts Rules, SOR/98-106.

The Project will have significant adverse environmental effects on the endangered Southern Residents and their critical habitat

4. On December 16, 2013, Trans Mountain filed an application with the Board for a Certificate of Public Convenience and Necessity under Part III of the National Energy Board Act, R.S.C., 1985, c. N-7 (the “NEB Act”), to expand the capacity of its Trans Mountain pipeline, which carries diluted bitumen from Edmonton, Alberta to the Westridge Marine Terminal in Burnaby, British Columbia. The purpose of the Project is to transport more diluted bitumen from the oil sands to the west coast to be exported.

5. If constructed, the Project will add a second pipeline to the existing pipeline and expand the total carrying capacity from 300,000 to 890,000 barrels per day, 000740 6

and will expand the Westridge Marine Terminal to allow for export of the additional diluted bitumen.

6. The Project will also result in a nearly sevenfold increase in the number of oil tankers calling at Westridge Marine Terminal and navigating shipping lanes through Burrard Inlet, Vancouver Harbour and the Salish Sea to the open ocean, from the current number of approximately 120 tanker transits per year to approximately 816. This constitutes a 13.5% increase in vessel traffic in the relevant shipping lanes.

7. The Board concluded in its Reconsideration Report that Project-related marine shipping is likely to have significant adverse effects on the Southern Residents and their critical habitat by increasing underwater noise and the risk of ship strikes.

8. The Southern Residents are listed and protected as endangered under schedule 1 of SARA. Subsection 32(1) of SARA protects the Southern Residents directly by prohibiting killing, harm, and harassment of individual whales. Sections 37-55 provide for recovery of endangered species.

9. From the time the Project was initially proposed in 2013 to the Reconsideration, the number of Southern Residents declined overall from 82 individuals to 74.

10. The Southern Residents seasonally occupy the waters of the Salish Sea, which they rely on in particular as a hunting ground for their preferred prey, Chinook salmon.

11. As marine mammals living in the dark ocean environment, Southern Residents rely on sound – including echolocation clicks – as a proxy for vision, to navigate, hunt, and communicate. Underwater noise from vessels degrades the acoustic quality of the ocean water, interfering with the whales’ ability to hear.

12. The 2018 Fisheries and Oceans Canada Recovery Strategy for the Northern and Southern Resident Killer Whales (Orcinus orca) in Canada (the “Recovery Strategy”) identifies four threats to the whales and their critical habitat: (1) reduced prey availability; (2) marine contamination (including from oil spills); 000741 7

(3) physical and acoustic disturbance (primarily caused by shipping); and (4) ship strikes.

13. These individual threats combine together and act synergistically as barriers to recovery of the Southern Residents. Physical and acoustic disturbance from ships makes it harder for the whales to find and capture increasingly scarce prey in critical habitat, which further exacerbates the effect of reduced prey availability. Increased shipping in turn increases the risk of injury or mortality due to ship strikes.

14. Due to their small population size, the loss of a single individual has population level consequences for the Southern Residents.

15. In May 2018, the Ministers of Fisheries and Oceans and Environment and Climate Change declared in an Imminent Threat Assessment that the Southern Residents “are likely facing imminent threat to survival” and “are likely facing imminent threat to recovery” based on current threats and under existing conditions in the Salish Sea. The Imminent Threat Assessment states that Southern Resident survival is unlikely or impossible without mitigation of current threats, that the threats were not at that time being successfully abated, and that no one had yet evaluated the effectiveness of actions underway to respond to their decline.

16. In November 2018, the Committee on the Status of Endangered Wildlife in Canada (“COSEWIC”) recommended that 13 populations of South Coast Chinook salmon, the preferred prey of the Southern Residents, be listed as species at risk under SARA.

17. All parts of Southern Residents critical habitat are also legally protected from destruction under s. 58 of SARA, though the operation of the Critical Habitats of the Northeast Pacific Northern and Southern Resident Populations of the Killer Whale (Orcinus orca) Order, SOR/2018-278 (the “Critical Habitat Order”). 000742 8

18. Critical habitat is defined in section 2 of SARA as the habitat “necessary for survival and recovery” and includes the physical and biological aspects of that habitat. In the case of the Southern Residents this includes the acoustic quality of the ocean water in critical habitat.

19. The Recovery Strategy for the Northern and Southern Resident Killer Whales (Orcinus orca) in Canada (the “Recovery Strategy”) identifies two areas of Southern Resident critical habitat: a transboundary area covering much of the Salish Sea, and an area along the south west coast of Vancouver Island, and extending beyond the 12 nautical mile limit of the territorial sea into the 200 mile exclusive economic zone. The latter area was identified in the Recovery Strategy and formally protected through the Critical Habitat Order in 2018.

20. The shipping lanes that would be used for Project-related marine shipping transects the Southern Residents’ critical habitat. Tankers will also transit through the newly protected portion of critical habitat as they approach and exit the shipping lanes.

Section 52 of the NEB Act required a CEAA 2012 assessment of the Project, triggering the mandatory provisions of SARA

21. Section 52(3) of the NEB Act required the Board to include an environmental assessment prepared under CEAA 2012 in its report on any application that relates to a “designated project”.

22. The Project is a designated project under s. 2(1) of CEAA 2012.

23. Project-related marine shipping is considered part of the Project for the purpose of the environmental assessment under CEAA 2012.

24. The purposes of CEAA 2012 in s. 4 include protecting the components of the environment that are within the legislative authority of Parliament, which includes the Southern Residents and other aquatic species listed under SARA, from significant adverse environmental effects caused by projects. The jurisdictional reach of CEAA 2012 includes the territorial sea and the exclusive economic zone. 000743 9

25. No project that may affect areas of federal responsibility is to proceed if it is likely to cause significant adverse environmental effects, unless those effects have been justified in the circumstances (CEAA 2012, s. 7(b)).

26. Section 79 of SARA applies when a project that is likely to affect species at risk or their critical habitat is subject to an environmental assessment under CEAA 2012 (SARA s. 79 (1) and (3)).

27. Section 79 imposes requirements that are additional to the requirements of CEAA 2012. Subsection 79(2) of SARA provides that the person conducting an assessment of the environmental effects of a project must identify all adverse effects of the Project on SARA-listed wildlife species and their critical habitat, and must ensure that, if the Project were to proceed, measures to avoid or lessen the Project’s effects would be taken, in a way that is consistent with the species’ recovery strategies and action plans. These are mandatory provisions which the Applicants submit apply to all adverse effects of the Project.

28. As confirmed by this Court in Tsleil-Waututh Nation v Canada (Attorney General), 2018 FCA 153 “Tsleil-Waututh”), in the case of the Project the Board was required to provide an exposition of potential measures under s. 79(2). The Governor in Council was then required to ensure that the Project was not approved until all measures within the authority of the federal government were in place to avoid or lessen the Project’s effects on SARA-listed species and their critical habitat.

29. The Governor in Council cannot lawfully approve the Project unless the requirements of SARA have been met. This requires that all relevant federal measures to avoid or lessen the Project’s adverse effects on SARA-listed species be in place before the Project is approved.

The history of the Project’s Review and Reconsideration by the Board

30. In May 19, 2016, following its initial review and environmental assessment of the Project, the Board issued its report on the Project (the “2016 Report”). The 2016 Report concluded that, although Project-related marine shipping was 000744 10

likely to result in significant adverse effects on the Southern Residents, the Project was not likely to result to result in any significant adverse environmental effects under CEAA 2012. This conclusion was possible because the Board excluded Project-related marine shipping from the definition of the Project for the purposes of the CEAA 2012 environmental assessment.

31. As a consequence, the Board took the position in the 2016 Report that the requirements of CEAA 2012 and s. 79(2) of SARA did not apply to its consideration of the effects of Project-related marine shipping, because marine shipping was not part of the Project.

32. The 2016 Report stated that there was an “absence of any specific mitigation” and a “lack of possible mitigation” for the effects of Project-related marine shipping on the Southern Residents and their critical habitat. Accordingly, the Board’s recommended conditions in the 2016 Report did not include measures to avoid or lessen adverse effects on SARA-listed marine species, including the Southern Residents.

33. In November 2016, in Order in Council P.C. 2016-1069, the Governor in Council accepted the Board’s findings and recommendations, approving the Project and directing the Board to issue a certificate of public convenience and necessity under the NEB Act.

34. On August 30, 2018, this Court quashed Order in Council P.C. 2016-1069 and remitted the issue of Project approval to the Governor in Council for redetermination in its decision in the Tsleil-Waututh case. The Court found that it was unreasonable for the Board to exclude of the effects of Project-related marine shipping from its assessment under CEAA 2012, and to consequently fail to comply with the requirements of SARA s. 79(2).

35. As a result, on September 20, 2018, the Governor in Council issued Order in Council P.C. 2018-1177, referring back to the Board the recommendations, terms and conditions in the 2016 Report relevant to addressing issues specified by the Court in Tsleil-Waututh, including the effects of Project-related marine shipping on SARA-listed marine species such as the Southern Residents. 000745 11

36. From October 2018 to February 2019, the Board held the Reconsideration Review to consider the effects of Project-related marine shipping.

37. In the Reconsideration Review, the Board considered the effects of Project- related marine shipping from Westridge Marine Terminal to the 12 nautical mile territorial sea limit under CEAA 2012.

38. The Board excluded from the Reconsideration the effects of Project-related Shipping beyond the 12 nautical mile territorial sea limit within Canada’s jurisdiction in the exclusive economic zone from the scope of the Project under CEAA 2012. The Applicants take the position that the Board’s decision to exclude these effects was unreasonable.

39. On February 22, 2019, the Board issued the Reconsideration Report. In the Reconsideration Report, the Board concluded that Project-related shipping is likely to result in significant adverse effects to the Southern Residents based on, inter alia, the following factual findings:

(a) the Southern Resident population has “crossed a threshold where any additional adverse environmental effects would be considered significant”;

(b) Project-related marine shipping would overlap Southern Resident critical habitat along the shipping route, and add to both underwater noise and the risk of ship strikes throughout that route;

(c) “the effects associated with Project-related marine vessels will impact numerous individuals of the Southern Resident population in a habitat identified as critical to their recovery.” The Board further “classified these effects as high magnitude”;

(d) mortality of an individual Southern Resident from a Project-related ship strike would have “population level consequences”;

(e) the “increase in marine vessels associated with the Project would further contribute to cumulative effects that are already jeopardizing the recovery” of the Southern Residents; and 000746 12

(f) the Southern Residents are not able to withstand any additional adverse effects.

40. Notwithstanding the Board’s finding that “the operation of Project-related marine vessels is likely to result in significant adverse effects to Southern Resident Killer Whales,” the Board recommended that the Governor in Council approve the Project and justify the significant adverse effects on Southern Residents under section 31(1)(a) of CEAA 2012.

The Board’s Reconsideration Report did not meet SARA requirements

41. The Board failed to meet the requirements of s. 79(2) of SARA with respect to Project-related marine shipping in the Reconsideration Report, including by:

(a) failing to identify or ensure measures to avoid or lessen the adverse effects of Project-related marine shipping for all SARA-listed marine species, including the significant adverse environmental effects on the Southern Residents and their critical habitat; and

(b) recommending that significant adverse environmental effects on federally protected SARA-listed species can be justified under CEAA 2012, even though those effects have not been avoided or lessened in compliance with s. 79(2) of SARA.

42. The Board did not add any new Project conditions to protect the Southern Residents from the adverse effects of Project-related marine shipping.

43. The Board conceded that the sole condition in the 156 Project conditions expressly aimed at marine mammal protection – Condition 132, the Marine Mammal Protection Program – “offers no assurance that effective mitigation would be developed or implemented.”

44. The Board added 16 new recommendations to the Governor in Council concerning Project-related marine shipping in the Reconsideration Report (the “Recommendations”). 000747 13

45. The Recommendations are not an exposition of all technically and economically feasible measures that are available to avoid or lessen the Project’s effects on the Southern Residents.

46. The Board did not comment on the feasibility or effectiveness of the Recommendations with respect to avoiding or lessening significant adverse effects on Southern Residents, beyond stating that if implemented they “may assist in mitigating impacts of marine traffic”.

47. With respect to Recommendation 5, to develop an offset program to offset increased underwater noise and increased risk of ship strike, the Board does not set a threshold for or otherwise define what is meant by offsetting.

48. The Recommendations are not conditions of Project approval and do not otherwise limit the ability of the Project to proceed.

49. The Board does not require that the Recommendations be implemented prior to the commencement of Project-related marine shipping. The Recommendations do not require that any measures developed pursuant thereto, such as, for example, any part of an offset plan, be in place before Project-related marine shipping begins, nor that such measures remain in place for the duration of Project operations.

50. The Board’s recommendation to the Governor in Council to approve the project notwithstanding the significant adverse effects on Southern Residents was based on its interpretation of SARA, namely, that s. 79(2):

(a) allows a project to proceed when it will have significant adverse effects on a SARA-listed endangered species, because “[t]here is no explicit requirement in section 79 for there to be no residual effects on SARA- listed species, only that measures are taken in a way that is consistent with applicable recovery strategies and action plans”; and

(b) permits projects to be approved before measures to avoid or lessen significant adverse effects on critically endangered species are identified, prescribed or in place. 000748 14

51. The Applicants take the position that the Board’s interpretation of the mandatory duties in s. 79 is unreasonable or otherwise contrary to law.

The applicants brought their concerns to the Governor in Council’s attention before it issued the Order in Council

52. On April 5, 2019, counsel for the applicants wrote to the Governor in Council setting out the applicants’ position that the Board’s Report was unlawful and that the Governor in Council could not accept the Board’s recommendation before the requirements of SARA were met.

53. On June 7, 2019, counsel for the applicants wrote to the Governor in Council concerning the a May 6, 2019 Report from the Intergovernmental Science- Policy Platform on Biodiversity and Ecosystem Services, describing the emerging biodiversity crisis, which the Applicants said in their letter should inform the Governor in Council’s decision about the Project.

54. The applicants did not receive any responses to these letters. The Order in Council and the accompanying Explanatory Note do not reflect whether these submissions were considered.

The Governor in Council had no jurisdiction to make the Order in Council without ensuring all feasible measures will be taken to avoid or mitigate adverse effects on the Southern Residents and their critical habitat

55. On June 18, 2019 the Governor in Council approved the Project for a second time through the Order in Council.

56. In the Order in Council, the Governor in Council accepts the Board’s Report and:

(a) decides that the Project is likely to cause significant adverse environmental effects under CEAA 2012, including on the Southern Residents, and that those effects are justified in the circumstances; and (b) directs the Board to issue a decision statement concerning the Project and issue a certificate of public convenience and necessity to Trans Mountain 000749 15

in respect of the proposed construction and operation of the Project, subject to the terms and conditions set out in the Reconsideration Report. 57. On June 21, 2019, the Board issued Certificate of Public Convenience and Necessity OC-065 to Trans Mountain.

58. The Order in Council relies on the flawed Reconsideration Report and is therefore unreasonable, invalid or unlawful. The Governor in Council had no jurisdiction to issue the Order in Council adopting the Board’s findings and recommendations until the Board completed a lawful environmental assessment and report in compliance with SARA.

59. The Governor in Council did not remedy the Board’s failure to ensure measures to avoid or lessen adverse effects on SARA-listed species, including the Southern Residents and their critical habitat, under s. 79(2) of SARA.

60. Instead, the Governor in Council stated in the Order in Council that, having considered the “terms and conditions for Trans Mountain” and the Board’s “Recommendations to the Governor in Council”, as well as various regional initiatives such as the Oceans Protection Plan, the Whales Initiative, the measures set out in response to the Imminent Threat Assessment and the “measures announced in May 2019 (the “Regional Initiatives”), it was “satisfied” that the s. 79(2) duty had been discharged.

61. The Governor in Council did not impose any additional Project conditions, or amend any of the Board’s 156 recommended conditions, to add protections for any SARA-listed species, including the Southern Residents.

62. The Governor in Council’s undertaking to implement the Recommendations does not remedy the Board’s failings. As set out in more detail in paragraphs 44-49, the Recommendations are not conditions of the Project and need not be fulfilled prior to the commencement of Project-related marine shipping.

63. The Regional Initiatives identified in the Order in Council do not remedy the Board’s failing to comply with s. 79(2) of SARA. The Regional Initiatives are prospective, voluntary and temporary. There is no requirement that they be in 000750 16

place prior to Project-related marine shipping or continue through the lifetime of the Project.

64. The Governor in Council’s statement, in the Explanatory Note accompanying the Order in Council, that the Regional Initiatives will “more than mitigate” the effects on the Southern Residents is unsupported by the record before the Board.

The Governor in Council has no jurisdiction to justify significant adverse effects under CEAA 2012 that would be impermissible under SARA

65. As a consequence of the Order in Council, the Project, with its acknowledged significant adverse effects on the SARA-listed Southern Residents, will proceed with no conditions or other requirements in place to ensure that significant adverse environmental effects are avoided or lessened.

66. Rather that ensure measures to avoid or lessen all adverse effects of the Project on Southern Residents, the Governor in Council purports to justify the significant adverse effects on the Southern Residents under CEAA 2012.

67. The Governor in Council does not have the jurisdiction to decide that significant adverse effects on SARA-listed endangered species are justified in the circumstances under CEAA 2012 where those effects are left unmitigated in violation of SARA s. 79(2).

68. Allowing a project to proceed in spite of its significant adverse environmental effects on a listed endangered species undermines the purpose of SARA, which include preventing the extinction of species and providing for their recovery (SARA, s. 6).

69. Furthermore, SARA prohibits directly harming Southern Residents under s. 32(1) and destroying Southern Resident critical habitat under s. 58(1). The Board’s factual findings, summarized above in paragraph 39, indicate that Project-related shipping is likely to harm, harass, and potentially kill individual Southern Residents, and likely to further degrade the acoustic quality of Southern Resident critical habitat. 000751 17

70. Sections 73 and 74 of SARA prohibit the direct authorization of either harm to individuals of listed species or destruction of species’ critical habitat where either would jeopardize survival and recovery of the species.

71. It is not lawful to approve under one federal statute an activity that would be prohibited under another federal statute.

72. SARA and CEAA 2012 are both valid federal laws that apply to the environmental assessment of the Project. One does not oust or trump the other. If there is a conflict between the provisions, then the provisions that are more protective of the environment apply.

General grounds for the Application

73. The applicants rely on: sections 28, 18 and 18.1 of the Federal Courts Act, RSC 1985, c F-7; the Federal Courts Rules; CEAA 2012; the NEB Act; SARA; Critical Habitats of the Northeast Pacific Northern and Southern Resident Populations of the Killer Whale (Orcinus orca) Order, SOR/2018-278; Order in Council P.C. 2018-1352, SI/2018-102; Marine Mammal Regulations, SOR/93- 56; May 27, 2019 Interim Order for the Projection of Killer Whales (Orcinus orca) in the Waters of Southern British Columbia under the Canada Shipping Act, 2001, S.C. 2001, c 26; April 18, 2019 Fishery Notice: FN0377- COMMERCIAL, RECREATIONAL and ABORIGINAL - Salmon - Chinook - 2019 Fraser River Chinook Conservation Measures and Coast-wide Recreational Annual Aggregates; and such additional grounds as counsel may identify and this Honourable Court may consider.

This application will be supported by the following material:

1. The Reconsideration Report;

2. Portions of the record before the Board and the Governor in Council;

3. The Order in Council;

4. An affidavit of Elizabeth Gabel; and 000752 18

5. Such further and additional materials as counsel may advise and this Honourable Court may allow.

Rule 317 Request:

The applicants request that the Governor in Council send a certified copy of all materials that were placed before and considered by the Governor in Council in making the Order in Council that is not in the possession of the applicants.

Date: ______Dyna Tuytel and Margot Venton Solicitors for the Applicants 800, 744 – 4 Avenue SW Calgary, Alberta T2P 3T4 Tel: 403-705-0202 Fax: 403-452-6574 Email: [email protected]; [email protected]