1. INTRODUCTION...... 1 2. THE COWICHAN TRIBES’ DIRECT INTEREST ...... 1 2.1 The Cowichan Tribes ...... 1 2.2 Cowichan Aboriginal rights ...... 2 3. LEGAL FRAMEWORK ...... 3 3.1 The Board has broad jurisdiction to address the public interest ...... 3 3.2 CEAA 2012 prescribes a precautionary approach ...... 3 3.3 The Board supports transparency of government decision-making ...... 4 3.4 Trans Mountain is wrong about the scope of this review...... 5 3.4.1 Board-identified issues...... 5 3.4.2 Public interest jurisdiction to assess marine shipping issues ...... 6 3.4.3 No jurisdiction to consider economic benefits to upstream producers ...... 6 3.5 Environmental assessment does not discharge Crown duty to consult ...... 7 3.5.1 Constitutional obligations ...... 7 3.5.2 NEB process not sufficient to satisfy Crown obligations ...... 8 4. FAILURE TO CONSIDER AND ADDRESS MARINE TANKER SPILL RISKS ...... 8 4.1 Importance and scope of assessment ...... 8 4.2 Application underestimates risk of marine tanker spill ...... 10 4.2.1 Increased traffic increases risk ...... 10 4.2.2 Trans Mountain conclusions are incomplete and misleading ...... 11 4.2.3 Lack of transparency ...... 11 4.2.4 Limitations of risk assessment ...... 12 4.2.4.1 Risk modeling unreliable ...... 12 4.2.4.2 Overstated risk reduction effectiveness ...... 13 4.2.4.3 Inadequate consideration of weather and risk...... 14

4.2.4.4 No consideration of higher-likelihood events ...... 14 4.2.5 Risk assessment unsubstantiated ...... 14 4.3 Nature of oil being transported ...... 15 4.3.1 Inadequate understanding of oil behaviour ...... 15 4.3.2 Failure to fully simulate relevant conditions ...... 17 4.3.3 Inadequate understanding leads to inadequate assessment ...... 17 4.4 Effects of tanker spill underestimated ...... 18 4.4.1 Inadequate considerations of oil spill effects ...... 18 4.4.2 Failure to consider operational delay caused by evaporating dilbit ...... 18 4.4.3 Oil will sink ...... 19 4.4.4 Inadequate consideration of water chemistry and oceanography ...... 19 4.4.5 Quantitative ecological risk assessment insufficient ...... 20 4.4.6 Omission of kelp forests...... 21 4.4.7 Impacts on marine fish and habitat inadequately addressed ...... 22 4.4.8 Inadequate consideration of marine invertebrates ...... 22 4.4.9 Inadequate spill modeling for oiled shores ...... 23 4.4.10 Inadequate assessment of bitumen-based crude oil stranded on shores ...... 23 4.4.11 Inadequate consideration of long-term shore-cleaning operations ...... 24 4.4.12 Omission of effects on vegetation...... 25 4.5 Available mitigation overestimated ...... 25 4.5.1 Financial compensation impossible ...... 25 4.5.2 Failure to provide for adequate emergency response planning...... 26 4.5.3 Unrealistic expectations of spill response performance ...... 26 4.5.4 Lack of substantive response gap analysis...... 27 4.5.5 Inadequate spatial scoping ...... 27 4.5.6 Inadequate incident management ...... 27 4.5.6.1 Canadian Coast Guard not prepared ...... 28 4.5.6.2 Preparedness guidelines inadequate ...... 28 4.5.6.3 Emergency response procedures must be disclosed to First Nations ...... 28 4.5.7 Inadequate assessment of shore workforce ...... 28 4.5.8 Inadequate emergency response planning regarding wildlife ...... 29 4.5.9 Inadequate planning for oily wastes management ...... 29 4.5.10 Inadequate emergency tug services ...... 30 4.5.11 Inadequate salvage operations ...... 31

4.5.12 No tanker places of refuge ...... 31 4.5.13 Performance measures needed to address deficient regulatory regime ...... 32 4.6 Risks are too high ...... 34 4.6.1 Project should not proceed ...... 34 4.6.2 Alternatively, Project approval must be contingent ...... 35 5. FAILURE TO CONSIDER PIPELINE MALFUNCTION RISK ...... 35 5.1 Inadequate scoping ...... 35 5.1.1 Study area too small...... 35 5.1.2 Failure to consider key resources of value ...... 36 5.2 Inadequate assessment of pipeline spill effects on freshwater fish and habitat .. 36 5.2.1 Failure to assess impact on the Fraser River system ...... 36 5.2.2 Omission of resources of value and conservation units ...... 37 5.2.3 Spill would have significant impacts ...... 38 5.3 Omissions related to birds, habitat and mortality ...... 39 6. FAILURE TO ADDRESS NORMAL OPERATIONS IMPACT ...... 40 6.1 Inadequate consideration of Project effects on key species and habitats ...... 40 6.1.1 Marine invertebrates ...... 40 6.1.2 Marine invertebrate habitat ...... 41 6.1.3 Kelp forest...... 41 6.2 Inadequate identification and assessment of cumulative effects ...... 41 6.3 Inadequate mitigation measures proposed ...... 43 7. PROJECT JEOPARDIZES ABORIGNAL RIGHTS ...... 44 8. THE NEB SHOULD RECOMMEND AGAINST THE PROJECT ...... 45 9. CONSULTATION AND ACCOMMODATION NOT COMPLETE ...... 46 9.1 Deep consultation owed ...... 46 9.2 Additional study required to understand effects on Aboriginal rights ...... 47 9.3 Project approval should be delayed ...... 48 10. COMMENTS ON DRAFT CONDITIONS ...... 48 11. ADDITIONAL CONDITIONS REQUIRED ...... 49

1. INTRODUCTION

1. The Cowichan Tribes’ Traditional Territory extends from Vancouver Island, through the southern Gulf Islands and the Strait of Georgia, and into the south arm of the lower Fraser River to the site of the proposed Trans Mountain Expansion Project (the Project) pipeline crossing. Members of the Cowichan Tribes exercise Aboriginal rights throughout this Traditional Territory.

2. The Cowichan Tribes has filed three expert reports in this proceeding, which support the following conclusions:

a. The risk that the Project will result in a significant tanker oil spill is not adequately weighted;

b. Canada’s outdated marine transport safety system cannot cope with the additional pressures and risks that the Project will introduce; and

c. The effect that this Project will have on resources of value to the Cowichan Tribes is not sufficiently understood.

3. The evidence before the NEB demonstrates that the Project is not in the public interest.

4. The Project Application fails to consider potential impacts on many Aboriginal rights. But the evidence that is available establishes that the Project could have a significant negative impact on Aboriginal groups—including the Cowichan Tribes. The draft conditions proposed by the NEB do not ensure that Aboriginal rights will be protected.

5. Because the Government of Canada has chosen to consult with the Cowichan Tribes through this NEB process,1 these submissions also serve to identify matters outstanding that the Cowichan Tribes expects to be consulted on before any Project approval is issued.

2. THE COWICHAN TRIBES’ DIRECT INTEREST

2.1 The Cowichan Tribes

6. The Cowichan Tribes, also known as the Cowichan Indian Band, is a contemporary “band” within the meaning of the Indian Act.2 The present-day Cowichan Tribes is the largest band in British Columbia, with more than 4700 members,3 and is descendant of various local groups or “tribes” within the historic Cowichan people or nation. Anthropologists place the

1 Project Agreement for the Trans Mountain Pipeline Expansion Project in Alberta and British Columbia, Anne III, Part 3.0: “The Government of Canada will to the extent possible rely on the NEB process, including the hearing, to discharge any duty to consult for the Project. Aboriginal groups that have Project-related concerns should convey these concerns to the NEB, either orally or in writing, through the NEB’s hearing process.” 2 Exhibit C86-12-2 at PDF page 1. [Appendix A-1] 3 Exhibit C86-12-2 at PDF page 2. [Appendix A-2]

[1]

historic Cowichan people and the descendant Cowichan Tribes band within the Coast Salish cultural grouping.4

2.2 Cowichan Aboriginal rights

7. The Cowichan Tribes has a direct interest in this Project. Members of the Cowichan Tribes are in possession of reserve lands located on Cowichan Bay and the Cowichan River on southeast Vancouver Island.5

8. Members of the Cowichan Tribes are descendants of the historic Cowichan people, who exercised an exclusive and defensible territoriality on southeast Vancouver Island, the southern Gulf Islands, and on the south arm of the Fraser River prior to, at, and after the assertion of Crown sovereignty in 1846. The Cowichan people kept a permanent village at Tl’uqtinus, along the Fraser River on the south shore of Lulu Island opposite Tilbury Island—just downstream from the proposed Project pipeline crossing.6

9. The Cowichan have a strong claim to Aboriginal title over these lands and riverbeds.

10. The Cowichan people’s practice, custom, and traditions of fishing, harvesting and hunting within the Traditional Territory were integral to distinctive Cowichan culture as a vitally

4 H. Barnett, The Coast Salish of British Columbia, (Eugene: University of Oregon Press, 1955) [preface, diagram, and excerpts] Exhibit C86-15-2. 5 Exhibit C86-12-2 at PDF page 3. [Appendix A-3] 6 John Work, “Journal of John Work, November and December, 1924,” T.C. Elliott ed., in The Washington Historical Quarterly, (Seattle: The Washington University State Historical Society, 1908 to 1912), Volume III [excerpts] Exhibit C86-13-1; Francis N. Annance, “A Journey thro. the Land: A Journal of a Voyage from Fort George, Columbia river to Fraser river in the winter of 1824 and 1825,” Virginia Urrutia ed., in Cowlitz Historical Quarterly, (Washington: Cowlitz County Historical Society, 1991), Volume XXXIII No. 1 Exhibit C86-13-2; F. Merk (rev. ed.), Fur Trade and Empire: George Simpson’s Journal entitled Remarks Connected with the Fur Trade in the Course of a Voyage from York Factory to Fort George and Back to York Factory 1824-25 (Cambridge, Massachusetts: The Belknap Press of Harvard University Press, 1968) [excerpts] Exhibit C86-13-3; Morag MacLachlan, ed., The Fort Langley Journals, 1827-1830, (Vancouver: UBC Press, 1998) Exhibit C86-13-4; Governor Douglas to Colonial Secretary Labouchere – Despatch No. 21 (September 6, 1856) Exhibit C86-13-5; United States Northwest Boundary Survey, untitled map, copy identified as “US Boundary Survey, Sketch Map of the Islands” (February 24, 1859 to March 17, 1859) Exhibit C86-14-3; A.C. Anderson, “Notes on the Indian Tribes of British North America and the Northwest Coast”, Historical Magazine, Vol. VII, No. 3, pp. 59-81, (March 1863) Exhibit C86-14-1; J.L. Hawkins, Colonel R. Eng., H.R.M., Commissioner, and Archibald Campbell, United States Commissioner, Sheet No. 1, “British Columbia, Washington Territory” dated May 7, 1869 (Washington, U.S. National Archives, RG 76, Series 67) Exhibit C86-14-2; Archibald Campbell, Commissioner, United States Northwest Boundary Survey, “Geographic Memoir of the Islands between the Continent and Vancouver’s Island in the Vicinity of the 49th Parallel of North Latitude”, including Appendices, (with substantial transcription cover), (Report to the U.S. Senate Ex: Doc. No. 29, 40th Cong. 2nd Sess, 127-42, October 1869) Exhibit C86-14-3; “Map Showing the line of Boundary between the United States & British Possessions, From the point where the 49th Parallel of North Latitude strikes the Western Coast of the Continent ‘to the middle of the channel which separates the Continent from Vancouver’s Island and thence Southerly through the middle of said channel’ & c. to Fucas Straits, in accordance with Treaty of June 15, 1846.” (National Archives of the United States, Washington, D.C., 076 Series, 73-Pl170-E219) (undated) Exhibit C86-24-2; H.R. Wagner, Spanish Explorations in the Strait of Juan de Fuca (New York: AMS Press Inc., reprinted from the 1933 edition) [excerpts] Exhibits C86-16-1, C86-16-2, C86- 16-3, and C86-16-4; W. Duff, The Upper Stalo Indians of the Fraser Valley, British Columbia, Anthropology in British Columbia Memoir No. 1 (Victoria: British Columbia Provincial Museum, 1952) [excerpts] Exhibit C86-15- 1.

[2]

significant part of Cowichan life prior to, at, and continuing well after European contact in the early 1790s.

11. Members of the Cowichan Tribes continue to exercise Aboriginal rights throughout the Traditional Territory. The Cowichan Tribes have licenses to fish, both commercially and for food, social and ceremonial purposes, in areas that will be impacted by marine shipping and any pipeline spill affecting the Fraser River.7

3. LEGAL FRAMEWORK

3.1 The Board has broad jurisdiction to address the public interest

12. The Board has broad jurisdiction under the National Energy Board Act, R.S.C., 1985, c. N- 7 (the “NEB Act”) to consider whether the Project is in the public interest.8

13. “Public interest” is not a defined term. The public interest will change as society’s values change over time:

The public interest is inclusive of all Canadians and refers to a balance of economic, environmental, and social interests that change as society’s values and preferences evolve over time. As a regulator, the Board must estimate the overall public good a project may create and its potential negative aspects, weigh its various impacts, and make a decision.9

3.2 CEAA 2012 prescribes a precautionary approach

14. The Board considers the environmental impact of any proposed pipeline as part of its mandate under the NEB Act. In this case the Board is also tasked with ensuring that an environmental assessment is conducted pursuant to the Canadian Environmental Assessment Act 2012, SC 2012, c. 19, s. 52 (“CEAA 2012”).

7 Fisheries and Oceans Canada (DFO) issues Aboriginal Communal Fishing Licenses for food, social and ceremonial purposes (ACFL-FSC) to Cowichan Tribes. Appended as Appendix C are ACFL-FSC issued from 2008- 2014 and maps of relevant Fishing Management Areas as follows: 2008-09, Exhibit C86-12-3 at PDF page 1; 2009- 10, Exhibit C86-12-3 at PDF page 16; 2010-11, Exhibit C86-12-3 at PDF page 32; 2011-12, Exhibit C86-12-3 at PDF page 48; 2012-13, Exhibit C86-12-3 at PDF page 60; 2013-14, Exhibit C86-12-3 at PDF page 73; 2014-15, Exhibit C86-12-3 at PDF page 88; 2015-16, Exhibit C86-12-3 at PDF page 101; Letter and attachment from DFO to Cowichan Tribes, received April 28, 2015, Exhibit C86-12-3 at PDF page 114; Map of Management Areas – Pacific Region, obtained from DFO website, Exhibit C86-12-3 at PDF page 119; Map of Fisheries Management Area 29 – Pacific Region, obtained from DFO website, Exhibit C86-12-3 at PDF page 122; DFO also issues certain Commercial Fishing Licenses to Cowichan Tribes. Copies of current licenses are Appended as Appendix D, Exhibit C86-12-4. 8Courts and commentators generally consider the phrase “public convenience and necessity” as synonymous with “public interest”: Emera Brunswick Pipeline Company Ltd, Facilities and Tolls and Tariffs, Reasons for Decision GH-1-2006, May 2007. 9 Ibid at 10.

[3]

15. This task must be guided by the objectives of CEAA 2012, which include environmental protection, careful and precautionary consideration of projects to avoid significant adverse environmental effects, and the study and consideration of cumulative effects.10

16. The precautionary principle, as enshrined in CEAA 2012,11 must guide both the NEB’s assessment of the Application and any government decision regarding Project approval:

4 …(2) The Government of Canada, the Minister, the Agency, federal authorities and responsible authorities, in the administration of this Act, must exercise their powers in a manner that protects the environment and human health and applies the precautionary principle.

17. The Federal Court of Appeal has held that “the precautionary principle states that a project should not be undertaken if it may have serious adverse environmental consequences, even if it is not possible to prove with any degree of certainty that these consequences will in fact materialize” (emphasis added).12

18. The NEB also adopts the concept of adaptive management, which responds to the impossibility of predicting all environmental consequences of a project on the basis of existing knowledge.13 However, adaptive management is not an excuse for failing to properly assess risk and impacts on the basis of existing knowledge.

3.3 The Board supports transparency of government decision-making

19. The Board is required by CEAA 2012, s. 29, and the NEB Act, s. 52(1) to complete its Report and provide a recommendation as to whether:

a. the Project is likely to cause significant adverse environmental effects (and, if so, whether they can be justified in the circumstances), and

b. a certificate of public convenience and necessity should be issued.

20. The Board must provide reasons for these recommendations, and, regardless of its conclusions, must identify terms and conditions to which the Project should be subject.

21. The Board best serves its role by producing a reasoned assessment of potential impacts, which:

a. clearly identifies factual unknowns and evidentiary gaps; and

b. makes transparent the Board’s own weighting of risks and competing policy considerations.

10 CEAA 2012, s. 4(1) 11 subs. 4(1)(b) and (g), and 4(2) 12 Canadian Parks and Wilderness Society v Canada (Minister of Canadian Heritage), 2003 FCA 197 at para 24. 13 Ibid.

[4]

22. Given the relatively narrow mandate of the NEB, it is important that the Board identify matters outside of its own jurisdiction that may be relevant to a government decision-maker. The government should not be permitted to hide behind NEB approval in making its own decision when there are so many other issues at play that the NEB has not been tasked with addressing—including whether sufficient consultation and accommodation of Aboriginal rights has occurred.

3.4 Trans Mountain is wrong about the scope of this review

3.4.1 Board-identified issues

23. The Board has identified the following List of Issues that it will consider in making recommendations to the Minister and Cabinet:14

1. The need for the proposed project.

2. The economic feasibility of the proposed project.

3. The potential commercial impacts of the proposed project.

4. The potential environmental and socio-economic effects of the proposed project, including any cumulative environmental effects that are likely to result from the project, including those required to be considered by the NEB’s Filing Manual.

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.

6. The appropriateness of the general route and land requirements for the proposed project.

7. The suitability of the design of the proposed project.

8. The terms and conditions to be included in any approval the Board may issue.

9. Potential impacts of the project on Aboriginal interests.

10. Potential impacts of the project on landowners and land use.

11. Contingency planning for spills, accidents or malfunctions, during construction and operation of the project.

12. Safety and security during construction of the proposed project and operation of the project, including emergency response planning and third-party damage prevention.

14 NEB Hearing Order OH-001-2014, Appendix I, Exhibit A15-3

[5]

The NEB does not intend to consider the environmental and socio- economic effects associated with upstream activities, the development of oil sands, or the downstream use of the oil transported by the pipeline.

3.4.2 Public interest jurisdiction to assess marine shipping issues

24. In its Final Argument, Trans Mountain repeatedly asserts that the existing regulation of marine shipping is outside the NEB’s jurisdiction.15

25. The Cowichan Tribes submits that such matters must necessarily be considered in making any public interest assessment. The NEB Act specifically states that “In making its recommendation, the Board shall have regard to all considerations that appear to it to be directly related to the pipeline and to be relevant and may have regard to … any public interest that in the Board’s opinion may be affected by the issuance of the certificate or the dismissal of the application.”16

26. The increased marine shipping that will result from the Project will increase the risk of an oil tanker spill. The NEB is required to consider whether this additional risk can be offset by other benefits.

27. In undertaking this analysis, it is impossible for the NEB to ignore the present state of marine shipping regulation and emergency response preparedness in the Salish Sea. If the present situation discloses an inability to adequately respond to an oil spill, that inability must be factored into any public interest assessment.

28. While the NEB may not have the power to order changes to marine shipping regulations, guidelines, or Canada’s emergency response planning as part of its Project approval, the NEB can decide that the Project is not in the public interest until changes are made. Thus regulatory changes and improved emergency response planning can and should be made pre-conditions to Project operation. The responsible federal department or agency can take steps to meet these conditions, should they choose to do so. This properly accounts for the real costs of Project development and places the issues squarely before the government decision-maker.

3.4.3 No jurisdiction to consider economic benefits to upstream producers

29. The Project, if approved, will connect oil sands producers to markets in Asia. The Board has previously ruled that the consequences of oil sands development will not be considered because they are not directly connected to the Project itself. In doing so, the Board ruled that upstream activity will not factor into its Report.

30. The Board held that upstream and downstream economic effects would be considered only to allow the Board to assess the availability of oil to the pipeline, the existence of actual or

15 December 15, 2015 Final Argument of Trans Mountain, pp. 20-21; Exhibit B444-2. 16 NEB Act, s. 52(2).

[6]

potential markets, and the economic feasibility of the pipeline.17 In particular, the Board stated that it would be inappropriate to consider “one cost or benefit of upstream or downstream activities in isolation of other costs and benefits.”18

31. Yet this is what Trans Mountain is now trying to do. By identifying the economic benefits to upstream producers, Trans Mountain is adducing evidence about the Project’s benefits to upstream oil sands producers in isolation from the costs associated with upstream oil sands production.

32. To the extent that Trans Mountain’s evidence about benefits to upstream oil producers is adduced for anything more than showing that the pipeline would be used and economically feasible, it should be ignored.

33. While this Board has broad jurisdiction to consider the public interest, it would be unreasonable to consider economic benefits flowing to oil sands producers without also considering the associated environmental costs of the product they produce, or the signals that increased prices would send to increase oil sands production. Just as evidence of upstream environmental costs has been excluded, so must evidence of upstream economic benefits.

3.5 Environmental assessment does not discharge Crown duty to consult

3.5.1 Constitutional obligations

34. The Crown has a constitutional obligation19 to consult with a First Nation “when the Crown has knowledge, real or constructive, of the potential existence of the Aboriginal right or title and contemplates conduct that might adversely affect it.”20

35. Once the duty to consult has been triggered, the level of consultation is determined by the First Nation’s strength of claim and the potential impact on rights. Deep consultation is owed “where a strong prima facie case for the claim is established, the right and potential infringement is of high significance to the Aboriginal peoples, and the risk of non- compensable damage is high.”21

36. The Crown must allow sufficient time for the consultation to run its course, and not end consultation due to time constraints while a First Nation is actively engaged in the process and outstanding issues remain.22

17 National Energy Board, Ruling No. 25, Hearing Order OH-001-2014, 23 July 2014 at pp. 5-6; Exhibit A63-1 18 National Energy Board, Ruling No. 25, Hearing Order OH-001-2014, 23 July 2014 at p. 6; Exhibit A63-1 19 Rio Tinto Alcan Inc v Carrier Sekani Tribal Council, 2010 SCC 43 at para 34 [Rio Tinto]. 20 Haida Nation v British Columbia (Ministry of Forests), 2004 SCC 73 at para. 35. 21 Ibid. at para 44. 22 Squamish Nation v British Columbia (Minister of Community, Sport and Cultural Development) 2014 BCSC 991 at para 214.

[7]

3.5.2 NEB process not sufficient to satisfy Crown obligations

37. In this case, the Crown will “to the extent possible rely on the NEB process, including the hearing, to discharge any duty to consult for the Project.”23

38. The Crown can rely on this process to discharge its duty to consult with the Cowichan Tribes only to a very limited extent.

39. The environmental assessment addresses impacts on Aboriginal rights by employing the following methodology:

a. Will the Project negatively impact the environment?

b. After applying (often speculative) mitigation measures, will the impact to the environment be “significant”?

c. Are any significant impacts “likely” to occur?24 And—only then—

d. Will any “significant” and “likely” changes to the environment affect “the current use of lands and resources for traditional purposes?”25 (emphasis added).

40. This results in an assessment that considers impacts to only some Aboriginal rights, on a regulatory—rather than a constitutional—standard.

41. Given the approach Trans Mountain has adopted, the Crown’s obligations to consult with the Cowichan Tribes outside of the NEB process remain extensive.

4. FAILURE TO CONSIDER AND ADDRESS MARINE TANKER SPILL RISKS

4.1 Importance and scope of assessment

42. Turning now to the Application itself, it is important that the NEB give serious weight to the risk that an accident or malfunction would lead to a catastrophic event. Transport Canada has concluded that there is a high probability of spills occurring in Southern Vancouver Island waters,26 and even the most advanced spill response cannot recover all spilled oil.27 The risk assessment is directly relevant to determining whether the risk is acceptable, and therefore whether the Project should be approved in the public interest.

23 Project Agreement for the Trans Mountain pipeline expansion project in Alberta and British Columbia, Appendix III, Part 3.0. 24 See the approach adopted in Trans Mountain Final Argument, p. 58; Exhibit B444-2. 25 CEAA 2012, s. 5. 26 Dr. Todd Hatfield et al., “Trans Mountain Expansion Project Environmental Assessment Application Review” (May 19, 2015: Ecofish Research Ltd.), Exhibit C86-18-1, PDF page 18, curriculum vitae Exhibit C86-25-2. 27 Ibid C86-18-1.

[8]

43. Trans Mountain’s Application assesses the risk of marine tanker spills on the basis of “likelihood”.28 But this is not the applicable standard. CEAA 2012 mandates that all accidents or malfunctions that may occur must be factored into the analysis:29

19.(1) The environmental assessment of a designated project must take into account the following factors:

(a) the environmental effects of the designated project, including the environmental effects of malfunctions or accidents that may occur in connection with the designated project and any cumulative environmental effects that are likely to result from the designated project in combination with other physical activities that have been or will be carried out;

(b) the significance of the effects referred to in paragraph (a);

[…]

(d) mitigation measures that are technically and economically feasible and that would mitigate any significant adverse environmental effects of the designated project;

[…]

(j) any other matter relevant to the environmental assessment that the responsible authority, or — if the environmental assessment is referred to a review panel — the Minister, requires to be taken into account.30 (emphasis added)

44. The Federal Court of Appeal recently held that language identical to CEAA 2012 requires consideration of the effects of malfunctions or accidents that “may” result from a project.31

45. This requires the following analysis to be conducted:

a. Is it possible that malfunctions or accidents may occur in connection with the Project?

b. Would those malfunctions or accidents have a negative effect on the environment?

c. Would the negative effect on the environment be significant?

d. Are mitigation measures available that would mitigate any significant adverse environmental effects of the Project?

28 See e.g. Final Argument of Trans Mountain at p. 68; Exhibit B444-2. 29 April 2, 2014 NEB Letter re Factors and Scope of the Factors for the Environmental Assessment pursuant to the CEAA 2012; Exhibit A13-1. 30 CEAA 2012, s. 19 31 Greenpeace Canada v Canada (Attorney General), 2015 FCA 186 at para 71 (per Rennie JA, dissenting but in reasons adopted by the majority at para 82).

[9]

46. As will be addressed in the sections that follow, when this statutorily-mandated test is applied to the evidence adduced in this Application, only one set of conclusions results:

a. Yes, it is possible that a tanker spill could occur as a result of the increased number of tankers coming to and from the Westridge Marine Terminal.

b. The effects of oil on marine life and the environment would be negative.

c. The negative effects would be significant.

d. The mitigation measures that Trans Mountain proposes are insufficient to mitigate these adverse environmental effects.

4.2 Application underestimates risk of marine tanker spill

4.2.1 Increased traffic increases risk

47. Transport Canada concluded in 2014 that, even under current conditions, the waters around the southern tip of Vancouver Island are one of the areas with the highest probability of a large oil spill in Canada.32

48. Trans Mountain commissioned a report from Det Norske Veritas to estimate the risk that a marine shipping accident or malfunction will occur. This report discloses significantly increased risk as a result of the Project:

a. Oil spill accident frequency will increase by 6.8 times for Trans Mountain tankers if the Westridge Marine Terminal is expanded in 2018.33

b. Potential spill accidents from Trans Mountain tankers currently constitute 20% of the potential oil spill accident risk. After the expansion, 63% of the risk in the Strait of Georgia will result from tankers transiting to and from the Westridge Marine Terminal.34

49. Even if Trans Mountain risk reduction proposals were effective (a matter challenged below), on Trans Mountain’s own evidence the Project introduces a 23% increase in oil cargo spill frequency.35

32 Hatfield Report, Exhibit C86-18-1, PDF page 21. 33 Dr. Eleanor Kirtley et al., “Review of the Trans Mountain Expansion Pipeline Application to the National Energy Board, Expert Opinion on Marine Transport Risk Analysis” (May 7, 2015: The Glosten Associates, Inc.) the “Kirtley Report”, Exhibit C86-12-5, PDF page 12, quoting from Termpol 3.15 – General Risk Analysis and Intended Methods of Reducing Risk, Det Norske Veritas, Rev. 0, 25 November 2013, Section 7.2 Oil Cargo Spill Accident Frequency, page 48, curriculum vitae Exhibit C86-25-3. 34 Ibid C86-12-5. 35 Kirtley Report, Exhibit C86-12-5, PDF page 12, quoting from Termpol 3.15 – General Risk Analysis and Intended Methods of Reducing Risk, Det Norske Veritas, Rev. 0, 25 November 2013, Table A-8.

[10]

4.2.2 Trans Mountain conclusions are incomplete and misleading

50. Nonetheless, Trans Mountain concludes that the likelihood of a marine spill is low.36

51. Det Norske Veritas uses a Quantitative Risk Assessment (“QRA”) to calculate the probability of a marine-based oil spill. The QRA study is presented in TERMPOL 3.15 – General Risk Analysis and Intended Methods of Reducing Risk.37 In completing its report, Det Norske Veritas used its proprietary risk assessment tool: “Marine Accident Risk Calculation System” (“MARCS”).

52. The Cowichan Tribes retained Dr. Eleanor Kirtley of the Glosten Associates Inc. to examine Det Norske Veritas’ Marine Transport Risk Analysis. Dr. Kirtley holds a PhD in Naval Architecture and Marine Engineering from the University of Michigan. She has expertise in leading vessel traffic risk assessments on the Pacific coast, including forecasting vessel traffic incidents and contaminant spill volumes. She has also co-written guidelines for measuring and reducing marine vessel environmental impact. Dr. Kirtley reviewed the MARCS approach to quantitative risk assessment, and the limitations and assumptions used by Det Norske Veritas in calculating the probability of a marine-based oil spill.38

53. Dr. Kirtley found that key conclusions drawn by Trans Mountain from Det Norske Veritas’ analysis are incomplete and misleading, and that significant weaknesses result from both the underlying data used to inform the risk assessment model and the manner in which the model was implemented.39

4.2.3 Lack of transparency

54. While the regulatory framework does not prescribe a particular risk assessment methodology, the risk assessment must be capable of informing the environmental and public interest assessments that the Board must perform. It also must be sufficiently comprehensive to inform Phase IV consultation between the Crown and First Nations, to be completed after the NEB process has concluded.

55. The NEB Filing Manual requires that an application describe “methods used for any modeling, including the assumptions used and limitations of the models”.40 But Det

36 Final Argument of Trans Mountain, p. 331, Exhibit B444-2 37 TERMPOL 3.15 – General Risk Analysis and Intended Methods of Reducing Risk. Det Norske Veritas Inc Rev 0, 25 November 2013, Termpol 3.15 Risk Analysis; Exhibits B21-1, B21-2, and B21-3. TERMPOL is Transport Canada’s voluntary review Technical Review Process of Marine Terminal Systems and Transshipment Sites (“TERMPOL”) process. TERMPOL is a voluntary review process. It “focuses on the marine transportation components of a project (i.e., when a tanker enters Canadian waters, navigates through channels, approaches berthing at a marine terminal, and loads and unloads oil or gas) with the intent to improve, where possible, those elements of a proposal which could, in certain circumstances, threaten the integrity of a vessel’s hull while navigating and/or during cargo transfer operations alongside the terminal.” Its findings are not binding. 38 Kirtley Report, Exhibit C86-12-5, PDF page 2. 39 Kirtley Report, Exhibit C86-12-5, PDF page 2. 40 NEB Filing Manual, pp. 53-54 NEB Filing Manual

[11]

Norske Veritas’ risk assessment is not transparent, with data sources, assumptions, and adjustments poorly documented.41

56. This precludes full review of the data and calculations upon which the Application’s conclusions are based.42 Given the seriousness of the issues at stake, affected parties should not be required to accept Trans Mountain’s conclusions on faith as they are being asked to do here.

4.2.4 Limitations of risk assessment

4.2.4.1 Risk modeling unreliable

57. Det Norske Veritas’ risk assessment is not based on existing conditions present in the Georgia and Juan de Fuca Straits. The MARCS model employed by Det Norske Veritas instead uses data from the North Sea in the early 1990s. The data sources are often cited as proprietary or not fully referenced. The risk assessment elected to discard or ignore available local data.43

58. Use of the MARCS model in other geographical locations was extensively criticized by the National Research Council, in a report written and peer-reviewed by over two dozen independent experts in 1998. They concluded that the MARCS assessment “cannot be assumed to apply to other regions” as findings are “particularly location-dependent”.44 The Application provides no indication that the approach to implementing the model has been updated since these criticisms were made.45

59. Det Norske Veritas made adjustments to the North Sea data to account for contemporary technologies and local management. However, these adjustments both introduce uncertainties and reduce transparency.46 Dr. Kirtley concluded that “It is not appropriate to conclude that risk is lower in the Project’s study area based on a comparison of absolute findings developed by different methods and applied to different geographies and traffic systems.”47

60. Dr. Kirtley concluded that, in many cases:

a. data is used “without derivation, justification, or validation,”48

b. conclusions are based on assumptions that have not been demonstrated, and

41 Kirtley Report, Exhibit C86-12-5, PDF page 15. 42 Kirtley Report, Exhibit C86-12-5, PDF page 15. 43 Kirtley Report, Exhibit C86-12-5, PDF page 4-5. 44 Kirtley Report, Exhibit C86-12-5, PDF page 13. 45 Kirtley Report, Exhibit C86-12-5, PDF page 13. 46 Kirtley Report, Exhibit C86-12-5, PDF page 5. 47 Kirtley Report, Exhibit C86-12-5, PDF pages 12. 48 Kirtley Report, Exhibit C86-12-5, PDF page 15.

[12]

c. the model’s validation reasoning is not fully credible.49

61. In these circumstances, Dr. Kirtley concluded that there is a “high level of uncertainty in the model”50 and there can be “little confidence in the results.”51

4.2.4.2 Overstated risk reduction effectiveness

62. Trans Mountain’s conclusion that the Project will pose little risk to the marine environment as a result of a marine tanker spill is based the assumption that additional, proposed risk reduction measures will be put into place for Trans Mountain tanker traffic. These include tug escorts for marine traffic coming to and from the Westridge Marine Terminal and the application of Enhanced Situational Awareness.

63. Dr. Kirtley identifies a number of shortcomings in the Application’s proposed risk reduction measures:52

a. No disclosure of assumptions

The Application does not explain the assumptions made in modeling its proposed risk reduction measures. The resulting risk reduction “can only be a function of the assumptions,” but the Application prevents their examination.53

b. Tug escorts would increase marine traffic

Extending tug escort for the Project’s tankers would increase traffic in the system overall, and thus may change risk levels for other traffic, i.e. increased traffic increases risk of collision.54 However, this effect on other traffic does not appear to have been modeled. This information gap suggests that risk has likely been under-predicted.55

c. Risk reduction measures require new equipment and systems

The Application’s proposed risk reduction measures are not possible using the existing tug fleet and vessel management system. Only three tugs exist with the necessary escort and rescue capabilities, and they are already engaged.56 New builds and extensive rulemaking will be required.57

49 Kirtley Report, Exhibit C86-12-5, PDF page 15. 50 Kirtley Report, Exhibit C86-12-5, PDF page 15. 51 Kirtley Report, Exhibit C86-12-5, PDF page 2. 52 Kirtley Report, Exhibit C86-12-5, PDF page10. 53 Kirtley Report, Exhibit C86-12-5, PDF page 10. 54 Kirtley Report, Exhibit C86-12-5, PDF page 11. 55 Kirtley Report, Exhibit C86-12-5, PDF page 11. 56 Kirtley Report, Exhibit C86-12-5, PDF page 11; Exhibit B21-4m Robert Allan Ltd, An Evaluation of Local Escort and Rescue Tug Capabilities in Juan de Fuca Strait, Rev 3, 27 November 2013, Filing No A3S5G0. 57 Kirtley Report, Exhibit C86-12-5, PDF page 3.

[13]

d. Effectiveness of “Enhanced Situational Awareness” overstated

Enhanced Situational Awareness has two main parts: a very high frequency broadcast, and an untethered escort travelling ahead of loaded tankers. The Application appears to have double-counted the effectiveness of each risk reduction measure, thus reducing confidence in the results58 and appearing to overstate the effectiveness of “Enhanced Situational Awareness”.59

64. The risk of a marine-based oil spill will increase with marine traffic. Qualitative and quantitative risk assessment approaches, including the MARCS model used for the Application, support this principle. The MARCS model was unable to show that the proposed measures to reduce risk would overcome the inherent risk brought by increased marine traffic.60

4.2.4.3 Inadequate consideration of weather and risk

65. Although Trans Mountain’s method of risk assessment includes extreme weather conditions as part of an average, there is no way of identifying how the risk increases or decreases in relation to specific weather events.61 This means that the available tools used to calculate marine shipping risk are incapable of isolating the influence of extreme weather on overall risk. This is an unacceptable shortcoming of risk modeling.

4.2.4.4 No consideration of higher-likelihood events

66. The Application’s risk assessment was limited to the TERMPOL requirement to assess worst-case risk. Worst-case risks have lower probability but higher consequences (e.g. a vessel collision).

67. Limiting the scope of Trans Mountain’s QRA to low-probability worst-case scenarios means that there is no calculation of the risks that bring less catastrophic consequences, but which are more likely to happen.62 For example, the potential for a bunker fuel spill from an accident during transit is not considered.63 Thus, the overall risk in the system is under- predicted and narrowly defined.64

4.2.5 Risk assessment unsubstantiated

68. The Cowichan Tribes submits that the marine shipping risk assessment fails to meet key criteria required to demonstrate the assessment is sound. Dr. Kirtley concluded that “Trans

58 Kirtley Report, Exhibit C86-12-5, PDF page 11. 59 Kirtley Report, Exhibit C86-12-5, PDF page 11. 60 Kirtley Report, Exhibit C86-12-5, PDF pages 3 and 15. 61 Kirtley Report, Exhibit C86-12-5, PDF page 3. 62 Kirtley Report, Exhibit C86-12-5, PDF page 14. 63 Kirtley Report, Exhibit C86-12-5, PDF page 3. 64 Kirtley Report, Exhibit C86-12-5, PDF page 15.

[14]

Mountain has failed to present results supporting their conclusion ‘that oil cargo spill risk in the region will remain similar and comparable with current conditions’.”65

69. The deficiencies occurring in Trans Mountain’s risk assessment are compounded when Trans Mountain relies on the results for other aspects of Project assessment. As will be addressed below, Trans Mountain relied on these results to scope out key values from assessment and to make operational decisions.66

4.3 Nature of oil being transported

4.3.1 Inadequate understanding of oil behaviour

70. Not only is the probability of a spill unknown, but so are the expected results. One of the most significant unanswered questions in this Application is how the bitumen-based oil being transported will react in the rivers and oceans into which it could accidentally be released.

71. The Cowichan Tribes has filed expert evidence from Stafford Reid.67 Stafford Reid has an MSc in resource management and environmental policy and over 40 years’ experience in the field, including 25 years’ experience with environmental emergency management. His expertise includes developing response plans, guidelines, agreements, and teams to handle major oil and hazardous material spills, and he has authored numerous publications and reports on these topics. Stafford Reid completed a technical review of Trans Mountain’s preparedness for tanker casualties or oil spills. His report, A Technical Evaluation of Project Application Related to Marine Transportation Submitted to the National Energy Board for the Trans Mountain Pipeline Expansion Project, focuses on Volumes 8A, 8B, and 8C of the Application, as well as the technical reports prepared under Transport Canada’s TERMPOL process.68

72. The Stafford Reid Report concludes that Trans Mountain has not adequately assessed the behaviour of bitumen-based oil in Salish Sea conditions.

73. All response measures to any potential oil spill will depend on how spilled substances will behave.69 Trans Mountain bases its Application on the assumption that the physical and chemical properties of diluted bitumen are the same as Group III heavy conventional crude oils.70

65 Kirtley Report, Exhibit C86-12-5, PDF page 15. 66 Stafford Reid, “A Technical Evaluation of Project Application Related to Marine Transportation Submitted to the National Energy Board for the Trans Mountain Pipeline Expansion Project” (May 2015: Enviro Emerg Consulting) “Stafford Reid Report”, Exhibit C86-19-1, PDF pages 56 and 61, curriculum vitae for Stafford Reid, Exhibit C86-25-1. 67 Stafford Reid Report, Exhibit C86-19-1, PDF page 36. 68 Stafford Reid Report, Exhibit C86-19-1, PDF page 34. 69 Stafford Reid Report, Exhibit C86-19-1, PDF page 9. 70 Stafford Reid Report, Exhibit C86-19-1, PDF page 82.

[15]

74. The American Petroleum Institute has created a commonly used classification system for oil and petroleum products, in which they are divided into different categories according to their specific gravity. The bitumen-based oils transported by the Project, although within Group III or IV when fresh, can also behave like the heavier Group V oils with weathering.71 Group V oils are called “sinking” oils.72

75. Trans Mountain’s Application, however, only considers how Group III heavy grade oils will react when spilled.73

76. There is significant uncertainty about the behavior, fate, and operational challenges associated with all types of bitumen-based crude oils in Salish Sea conditions. It is insufficient take the most optimistic interpretation, as Trans Mountain does, and leave such crucial investigations to be conducted as part of the conditions to Project operation.74

77. The behavior of bitumen-based oils is generally comparable to other crude oils, in that they will initially float when spilled, and will then change properties due to the sun, waves, and biodegradation.75 However, the absolute behavior of bitumen-based crude oil’s potential rate and degree of weathering, within Salish Sea conditions, creates recovery scenarios that are not comparable.76

78. The tactics available for dealing with a heavy, rather than medium, grade spill are significantly limited. Without a heavy grade oil analysis, spill preparedness will be insufficient.77

79. The Application is further limited by its focus on bitumen that is diluted with a natural gas condensate (“dilbit”). The Application provides little or no technical analysis of other types of bitumen-based crude oils from Alberta that can be exported by oil tanker, such as upgraded bitumen (syncrude), bitumen diluted with syncrude (synbit), bitumen with syncrude and condensate (dilsynbit), or variations within these types.

80. As a result of these oversimplifications, the Application does not actually address the full range of ecological impacts and operational challenges that the Project poses.78

71 Stafford Reid Report, Exhibit C86-19-1, PDF page 38. 72 Stafford Reid Report, Exhibit C86-19-1, PDF page 80. 73 Stafford Reid Report, Exhibit C86-19-1, PDF page 82. Cowichan Tribes requested that Trans Mountain list which MARPOL heavy grade oils worldwide overlap with the densities of Alberta’s bitumen-based crude oils. Trans Mountain partially answered the question, but avoided any inference that bitumen-based crude oils are heavy grade oils under IMO regulation. Trans Mountain did not provide information about the overlap between MARPOL heavy grade oils and those of the Project. (Stafford Reid Report, Exhibit C86-19-1, PDF page 82; TM Response to Cowichan Tribes IR No. 1, Exhibit B121 response to 1.05(g) at PDG pages 15 and 16.) 74 Stafford Reid Report, Exhibit C86-19-1, PDF pages 90-91. 75 Stafford Reid Report, Exhibit C86-19-1, PDF page 38. 76 Stafford Reid Report, Exhibit C86-19-1, PDF pages 38, 79-80. 77 Stafford Reid Report, Exhibit C86-19-1, PDF page 82. 78 Stafford Reid Report, Exhibit C86-19-1, PDF page 10.

[16]

4.3.2 Failure to fully simulate relevant conditions

81. To reach its conclusions about the behavior of the oil being transported, Trans Mountain extrapolates from short-term, small-scale lab studies, where only one type of bitumen- based crude oil is tested under mild sea conditions.79

82. The laboratory modeled 10-day conditions, with mild waves (wavelets) and warm water (15˚C). These factors are similar to Burrard Inlet on a calm summer’s day, but they do not match actual Salish Sea conditions.80

83. Temperatures in the Salish Sea can cool to 5˚C in winter and waves can exceed one metre in the Strait of Georgia, and 6 metres in the Strait of Juan de Fuca. There are also regions where currents dominate (Boundary Pass and Haro Strait) and where the conditions are brackish and estuarine (the Fraser River plume). These conditions can markedly increase weathering; for example, cold water significantly increases emulsification and thus spill volume and viscosity.81

84. As a result of the Application’s limited modeling, it is difficult to ascertain the full rates and extents of how oil would weather and what operational challenges would be encountered.82

85. The Cowichan Tribes requested that Trans Mountain provide a rationale for not providing larger-scale laboratory tests of all the types of bitumen-based crude oils that tankers would carry, using fully simulated Salish Sea conditions of waves, currents, temperatures, salinities, and sediment loads.83 Trans Mountain’s responses to the Cowichan Tribes and a similar question posed by the NEB,84 reflect its opinion that bitumen-based crude oils are essentially like any conventional crude oil. Trans Mountain’s position represents either a critical misunderstanding of the composition and behaviour of bitumen-based crude oil, or a significant omission of information.

4.3.3 Inadequate understanding leads to inadequate assessment

86. Without further assessment of this key issue, the applicability of proposed recovery operations cannot be understood.

87. The Cowichan Tribes acknowledges that environmental assessments come with uncertainty. But the higher level of uncertainty involved in assessing this particular Project Application shows how important it is to adopt a precautionary approach that more heavily

79 Stafford Reid Report, Exhibit C86-19-1, PDF page 90. 80 Stafford Reid Report, Exhibit C86-19-1, PDF pages 71 and 91. 81 Stafford Reid Report, Exhibit C86-19-1, PDF page 91. 82 Stafford Reid Report, Exhibit C86-19-1, PDF pages 8-20. 83 Stafford Reid Report, Exhibit C86-19-1, PDF page 90; TM Response to Cowichan Tribes IR No. 1, Exhibit B121 response to 1.06(b) PDF page 23. 84 TM Response to NEB IR No 1, Exhibit B32-2, response to 1.63(a) PDG pages 363-364.

[17]

weights the ecological, social, cultural, and commercial risks associated with this Project when considering whether it is in the public interest.

4.4 Effects of tanker spill underestimated

4.4.1 Inadequate considerations of oil spill effects

88. After erroneously concluding that the Project does not increase the risk of an oil spill, Trans Mountain inadequately identifies the effects that a spill would have. As reviewed in the sections that follow, inadequacies exist in assessing effects throughout the process— from what would happen when the oil hits the water to the effect the oil would have on the shoreline once it migrates there.

4.4.2 Failure to consider operational delay caused by evaporating dilbit

89. Any crew responding to an oil spill will be delayed until the air quality around the spill is safe enough for workers. All crude oils include hazardous volatile components that can rapidly evaporate upon a spill.

90. However, the condensates blended into bitumen have a higher volume of hazardous volatile components than any lighter oil. From a recovery standpoint, dilbit is comparable to a hazardous chemical when spilled.85 Upon release, dilbit fumes are toxic. During the spring, summer, and fall, outside temperatures create the potential for the vapours to explode.86

91. Dilbit’s flashpoint, flammability, and toxicity raise special safety considerations.87 Oil spill containment and recovery may have to be delayed until the air quality is safe for workers. Alternatively, efforts may have to be delayed until specialized personal protective equipment is available for responders. Such equipment is cumbersome for workers and affects the response effort.88

92. Despite the significant safety concerns posed by dilbit, the Application does not explore or explain how dilbit’s chemical content may affect spill response workers or operations.89 In response to Cowichan Tribes’ information request on this topic, Trans Mountain indicated that the matter would be left to future study,90 and failed to address the operational difficulties that the request had identified.91

85 Stafford Reid Report, Exhibit C86-19-1, PDF page 106. 86 Stafford Reid Report, Exhibit C86-19-1, PDF page 106. 87 Stafford Reid Report, Exhibit C86-19-1, PDF page 106. 88 Stafford Reid Report, Exhibit C86-19-1, PDF page 106. 89 Stafford Reid Report, Exhibit C86-19-1, PDF page 107. 90 Stafford Reid Report, Exhibit C86-19-1, PDF page 107; TM Response to Cowichan Tribes IR No. 1, Exhibit B121 ,1.08(o) PDF page 37. 91 Stafford Reid Report, Exhibit C86-19-1, PDF page 111.

[18]

93. To more appropriately assess risk and likely effects, the Application should consider how worker safety affects the timeliness of oil containment and recovery. Available evidence indicates that a bitumen-based spill could cause a delay of 12 hours or more.92

4.4.3 Oil will sink

94. Response mechanisms will also depend on how spilled bitumen-based crude oils behave as their chemical and physical properties change over time.93

95. Trans Mountain has not provided information from comparative spills world-wide. The assessment would have benefited from information from known comparable incidents including spills from the Prestige, Erika, Baltic Carrier, Hebei Spirit, and Nestucca. Data from these spills would be more valuable than small-scale tank tests.94

96. Stafford Reid considered the Application, laboratory studies, and results from international heavy oil spills. Appendix 3 to the Stafford Reid Report provides a synopsis of his findings. He concludes that:

 there is “a high likelihood” that weathered bitumen-based oil will either sink or submerge in Salish Sea or Pacific Ocean conditions; and

 there are no practical on-water solutions to contain and recover a large oil release if it sinks or submerges.95

97. Currently available response technologies cannot mitigate the spill of bitumen-based crude if that oil:

a. submerges so that it is lying below the surface of the water (these oils can resurface elsewhere);

b. sinks to the ocean floor; or

c. emulsifies to 60% or more water content.96

4.4.4 Inadequate consideration of water chemistry and oceanography

98. Water chemistry and oceanography are central factors in determining how oil spilled in the ocean will behave. For example:

92 Stafford Reid Report, Exhibit C86-19-1, PDF page 79-80. 93 Stafford Reid Report, Exhibit C86-19-1, PDF page 39. 94 Stafford Reid Report, Exhibit C86-19-1, PDF page 92. 95 Stafford Reid Report, Exhibit C86-19-1, PDF page 71. 96 Stafford Reid Report, Exhibit C86-19-1, PDF page 9; The process of emulsification, in which water droplets become mixed into the oil, is significant, because it substantially increases both the volume and the viscosity of the spill (Stafford Reid Report, Exhibit C86-19-1, PDF page 74).

[19]

a. contaminants can be dispersed and transported by water;

b. temperature affects the rate at which contaminants degrade; and

c. salinity affects how quickly oil aggregates, which disperse more slowly, are formed.97

99. Trans Mountain’s coverage of water chemistry and oceanography, pursuant to a literature review, failed to account for numerous highly relevant studies that would have provided the necessary insight into this vital topic.98 Trans Mountain’s results are too incomplete to be defensible.

4.4.5 Quantitative ecological risk assessment insufficient

100. A properly performed environmental assessment should identify uncertainty about project- environment interactions and information gaps necessary to predict effects.99 The Application fails to do this.

101. Trans Mountain’s Application considered easily quantifiable factors, most of which are abiotic. This approach does not allow a comprehensive understanding of relevant marine ecology and how an oil spill could affect it. A qualitative study, including the biotic dimensions of marine habitats, should complement the quantitative assessment.100

102. This requirement is made explicit in section 2(1) of CEAA 2012, which defines the “environment” holistically to include:

(a) land, water and air, including all layers of the atmosphere;

(b) all organic and inorganic matter and living organisms; and

103. By excluding most biotic factors, the Application has failed to meet the filing requirements.

104. The Cowichan Tribes retained Dr. Todd Hatfield of Ecofish Research, Ltd., an environmental impact assessment consultancy, to assess the potential ecological consequences of a severe oil tanker spill on Cowichan Resources of Value102 throughout

97 Hatfield Report, Exhibit C86-18-1, PDF page 44. 98 Trans Mountain 2013: Volume 5C, Section 13, in Hatfield Report, Exhibit C86-18-1 PDF page 41. 99 Manual, PDF 55, NEB Filing Manual. 100 Hatfield Report, Exhibit C86-18-2, PDF page 5. 101 CEAA 2012 at s. 2(1). 102 Cowichan Tribes’ identified Resources of Value located around the mouth of the Fraser River and in the Strait of Georgia include: Coho, Spring, Chum, Pink, Chinook, and Sockeye Salmon, eulachon, herring, cod, halibut, flounder, sturgeon, mussels, red sea urchin, sea cucumber, habour seal, deer, Brant geese, canvasback duck, Common Merganser, Mallard, bull rush, reeds, cranberries, blueberries, camas, and green seaweed. Cowichan’s identified Resources of Value around the southern Gulf Islands include: coho, spring, chum, pink, chinook, and

[20]

their Areas of Interest. Dr. Hatfield holds a PhD in Zoology and has over 16 years’ experience as a project manager consulting on fisheries and water use issues. He has expertise in the design and execution of aquatic environmental impact studies, ecological and mathematical modeling, waste management and environmental flows, and fisheries- related environmental planning

105. As part of its written evidence, Cowichan Tribes filed Dr. Hatfield’s expert report, entitled “Trans Mountain Expansion Project: Environmental Assessment Application Review” (the “Hatfield Report”).103

106. Dr. Hatfield concludes that Trans Mountain’s Application fails to consider many important environmental components relevant to any effects assessment. In particular, the Application fails to account for how an oil spill may cause “differing levels of effects on different life history stages and taxonomic groups, and the potential for cascading ecosystem effects resulting from impacts on biotic habitat components.”104 A full summary of the technical gaps identified in the Application can be found at Appendix A of Exhibit C86-18-1.

4.4.6 Omission of kelp forests

107. A key omission from the Application is a discussion of the canopy forming kelps.105 Bull kelp and giant kelp form forests that provide habitat for many marine fish and invertebrates, and support herbivores, detrivores, and the organisms that feed on them.106 These include rockfish, which are Cowichan Resources of Value107 and important to coastal First Nations in general.108

108. Because kelp canopies float, they are vulnerable to oiling from spills. Trans Mountain’s assessment of spill effects is incomplete without special consideration of marine kelp forests and possible protection measures in the event of a spill.109

sockeye salmon, lingcod, lingcod roe, halibut, rock cod, flounder, skates, red snapper, sturgeon, clams, mussels, octopus, sea cucumber, red sea urchins, scallops, harbor seals, deer, Brant geese, canvasback duck, Common Merganser, Mallard, bull rush, reeds, cranberries, blueberries, camas, green seaweed, red alder, Pacific crab apple, arbutus, trembling aspen, trailing blackberry, cascara, yellow cedar, bitter cherry, black cottonwood, Western dock, Pacific dogwood, licorice fern, Douglas fir, Grand fir, red huckleberry, common juniper, stinging nettle, iron wood, wild onion, Prince’s pine, rattlesnake plantain, black raspberry, western yew, salal, salmonberry, Saskatoon berry, common snowberry, and Pacific willow: Exhibit C86-12-1 and Hatfield Report, Exhibit C86-18-1. 103 Hatfield Report, Exhibit C86-18-1, Exhibit C86-18-2. 104 Hatfield Report, Exhibit C86-18-2, PDF page 9. 105 Hatfield Report, Exhibit C86-18-1, PDF page 52. 106 Hatfield Report, Exhibit C86-18-1, PDF page 52. 107 Hatfield Report, Exhibit C86-18-2, PDF page 8. 108 Hatfield Report, Exhibit C86-18-2, PDF page 8. 109 Hatfield Report, Exhibit C86-18-1, PDF page 59.

[21]

4.4.7 Impacts on marine fish and habitat inadequately addressed

109. The Application’s review of marine fish and their habitat is so inadequate that it fails to allow an assessment of the interactions between the Project and these resources. The Application omits coverage of:

a. relevant species;

b. relevant data about included species; and

c. the distribution and abundance of significant species.110

110. With such data gaps, it is not possible to interpret how the Project or an oil spill would affect ecologically, economically, and culturally important marine fish.111

111. As demonstrated by Cowichan Tribes’ written evidence, and as summarized above, there is a high likelihood that bitumen spilled into marine waters in the Project area will submerge.112 According to Living Oceans’ evidence, fish, and specifically salmon, are vulnerable to contamination from submerged diluted bitumen dispersed in the upper water column:113

In addition to ingestion of submerged diluted bitumen droplets by outmigrating juvenile salmon from the Fraser River or released from salmon hatcheries, diluted bitumen may be ingested by adult and sub-adult life stages of salmon. Adult and sub-adult sockeye salmon are suspension feeders that filter small particulate matter such as phytoplankton and zooplankton from the water column, and would ingest small droplets of diluted bitumen that fall within their filtration size range. Pink and chum salmon ingest gelatinous zooplankton, which provide a means for tainting if their prey is contaminated by oil. The mere credible threat of contamination should a large-scale spill occur could have serious adverse consequences for these fisheries stemming from impaired marketability of products suspected of tainting, even when tainting is undetectable.

4.4.8 Inadequate consideration of marine invertebrates

112. Many marine invertebrate and fish larvae live very close to the surface of the ocean, even in zones with very deep water. However, Trans Mountain’s Application does not take this into consideration. Other than areas that the DFO identified as important habitat for specific species, Trans Mountain divided marine fish habitats into different categories of spill sensitivity only on the basis of depth. Shallower habitat was considered more sensitive. Trans Mountain’s assumption that there is less chance of encountering floating

110 Hatfield Report, Exhibit C86-18-2, PDF pages 7 & 9. 111 Hatfield Report, Exhibit C86-18-1, PDF page 8. 112 Stafford Reid Report, Exhibit C86-19-1, PDF page 71. 113 Dr. Short, “Fate and effect of oil spills”; Exhibit C214-18-3, PDF page 34.

[22]

oil with increasing depth114 does not account for the reality of many invertebrate and fish have life cycles that keep them close to the surface.115

4.4.9 Inadequate spill modeling for oiled shores

113. Trans Mountain concluded that after a marine spill, most of the oil would be on shore and off the water within two weeks, with the exception of the area around Buoy J.116 Stafford Reid, in Topic 5 of his Report, found a number of shortcomings with the Application’s modeling in this respect.

114. First, the Application’s spill trajectory monitoring is “very deterministic”.117 The modeling applied averages of wind direction and strength to conclude that all spilled oil would be off the water within a couple of weeks. In reality, oil could remain on water and extensively weather for months.118 To correct this omission, the Application should consider possible absolute conditions, such as little to no wind.119

115. Second, the Application’s modeling failed to accurately account for oil behavior in the sediment-laden Fraser River estuary plume. The modeling was based on the idea that freshly spilled oil would float, rather than rapidly accumulate sediment and weather. However, there is a very high likelihood that oil would submerge and/or sink120 in the Fraser River freshet’s brackish waters, as the oil would take up sediments and become too dense to float.121 The Application’s failure to consider where sunken oil from the Fraser River plume would migrate is a significant omission.122

116. Furthermore, given that there are no practical means or solutions to track or recover bitumen-based crude oils if they submerge or sink,123 the Application’s failure to consider the Fraser River plume’s effects on oil behavior may produce misleading results.

117. As a result, Stafford Reid concluded that more studies of an oil spill’s fate, behavior, and trajectory would be necessary for accurate scientific understanding of risk consequences and—ultimately—mitigation.124

4.4.10 Inadequate assessment of bitumen-based crude oil stranded on shores

118. The Application’s analysis of how oil may be stranded on shore is inadequate.125 As noted in the Federal Study, Properties, Composition and Marine Spill Behaviour, Fate and

114 Hatfield Report, Exhibit C86-18-1, PDF page 58. 115 Hatfield Report, Exhibit C86-18-1, PDF page 58. 116 Stafford Reid Report, Exhibit C86-19-1, PDF page 124. 117 Stafford Reid Report, Exhibit C86-19-1, PDF page 123. 118 Stafford Reid Report, Exhibit C86-19-1, PDF page 123. 119 Stafford Reid Report, Exhibit C86-19-1, PDF page 128. 120 Stafford Reid Report, Exhibit C86-19-1, PDF page 123. 121 Stafford Reid Report, Exhibit C86-19-1, PDF page 126. 122 Stafford Reid Report, Exhibit C86-19-1, PDF page 127. 123 Stafford Reid Report, Exhibit C86-19-1, PDF page 11. 124 Stafford Reid Report, Exhibit C86-19-2, PDF pages 1 and 123.

[23]

Transport of Two Diluted Bitumen Products from the Canadian Oil Sands, bitumen stranded on shore has decreased natural weathering processes compared to other oils. This is because the bitumen has already degraded in situ in the oil sands.126

119. The consequences of stranded bitumen are shown in the Arrow incident, in which a tanker ran aground in Nova Scotia in 1970 and released 2,000 m3 of Bunker C crude oil along 300 km of coastline. Ninety percent of the bitumen was left to degrade naturally, and oil cast above the high water mark hardened with oxidation. Where the fresh or emulsified oil mixed with gravel, pebbles, or sand, it hardened into an “asphalt pavement” contamination, patches of which remain visible today.127

120. The Cowichan Tribes submitted an information request regarding how the bitumen’s natural in situ weathering might affect its degradation rate if stranded on shore. Trans Mountain’s reply suggested that previous weathering in the oil sands will affect bitumen’s persistence. However, Trans Mountain did not indicate that it would take steps to accelerate stranded bitumen’s rate of degradation.128

4.4.11 Inadequate consideration of long-term shore-cleaning operations

121. The Application further fails to adequately explain and assess:

a. the operational limitations of treating shores upon which bitumen-based crude oils have stranded; and

b. operations over an extended period beyond the 10-day Gainford study.

122. The Gainford Study concluded that Corexit 9580, a shore-washing agent used in combination with a water deluge on oiled sand, gravel, pebble, and cobble shores, must be applied when the oil is fresh in order to be effective—meaning within four to five days.129 However a major shoreline cleanup effort can continue for many months,130 and oil is commonly found in zones where it cannot be naturally cleaned by waves, and instead oxidizes and hardens.131 The proposed use of Corexit 9580 will likely be insufficient on its own to remove weathered dilbit, especially in light of the timeframe.132

125 Stafford Reid Report, Exhibit C86-19-1, PDF page 113. 126 Stafford Reid Report, Exhibit C86-19-1, PDF page 113, quoting from PDF page 4. 127 Stafford Reid Report, Exhibit C86-19-1, PDF page 113. 128 TM Response to Cowichan Tribes IR No. 1, Exhibit B121, 1.06(j), PDF page 24; Exhibit C86-19-1, PDF page 113-114. 129 Stafford Reid Report, Exhibit C86-19-1, PDF page 117. 130 Stafford Reid Report, Exhibit C86-19-1, PDF page 118. 131 Stafford Reid Report, Exhibit C86-19-1, PDF page 117. 132 Stafford Reid Report, Exhibit C86-19-1, PDF pages 114 and 118.

[24]

123. In the Project Area, allowing oiled shores to recover naturally “is not an option for the semi-protected areas of the Salish Sea such as the Gulf and San Juan Islands, Haro Strait, Strait of Georgia, and easterly portions of the Juan de Fuca Strait.”133

4.4.12 Omission of effects on vegetation

124. The Cowichan Tribes’ Resources of Value include both flora and fauna. Shoreline Resources of Value include bull rush, cranberries, blackberries, camas, and pacific crab apple.

125. Trans Mountain did not include any potential impacts on vegetation in its assessment of marine transportation spills.134 Given that the Application submits that a marine transportation spill could strand oil along almost three hundred kilometers of Gulf Island shoreline, it is necessary to consider how the oil would affect shoreline and aquatic plants.135

126. In addition, clean-up activities following a spill will affect plant life and re-generation:136 mechanical clean-up can remove roots, disrupt seed sources, and compact soils.137 Chemical cleaning can be toxic to algae and aquatic plants.138 Failure to consider these effects is an omission in the Application that makes its assessment of environmental effects and their significance incomplete.

4.5 Available mitigation overestimated

4.5.1 Financial compensation impossible

127. The Cowichan Tribes is participating in this process to protect its Aboriginal rights. Trans Mountain acknowledges that any spill would disproportionately affect Aboriginal groups’ ability to exercise their constitutionally-protected rights.139 Needless to say the loss of these rights—fundamentally tied as they are to Aboriginal culture—cannot be compensated financially. Financial compensation should therefore not factor into the mitigation measures that are considered.

128. Even if this were not the case, Trans Mountain is not liable to provide financial compensation for marine shipping accidents (as Trans Mountain repeatedly states in its Final Argument). Thus the most devastating consequences of Trans Mountain’s Project are outside of both its control and ability to mitigate—financially or otherwise.

133 Stafford Reid Report, Exhibit C86-19-1, PDF page 117. 134 Hatfield Report, Exhibit C86-18-2, PDF page 60. 135 Hatfield Report, Exhibit C86-18-2, PDF page 17. 136 Hatfield Report, Exhibit C86-18-2, PDF page 17. 137 Hatfield Report, Exhibit C86-18-2, PDF page 17. 138 Hatfield Report, Exhibit C86-18-2, PDF page 17. 139 Final Argument of Trans Mountain, p. 207, Exhibit B444-2.

[25]

4.5.2 Failure to provide for adequate emergency response planning

129. Marine emergency management is a key aspect of the Application for Cowichan Tribes, many Intervenors, and the public. Over the course of this assessment, it has become clear that both Trans Mountain’s approach and the existing regulatory framework are gravely deficient.

130. The deficient emergency response planning identified and proposed in the Trans Mountain Application results from:

a. A regulatory void related to major vessel casualty response;

b. The existing major vessel casualty response system;

c. Trans Mountain’s unbalanced approach to risk assessment; and

d. Trans Mountain’s failure to understand and assess the expected behaviour of bitumen-based crude oil. The Stafford Reid Report concludes that, since Trans Mountain has failed to understand how bitumen-based oils will disperse and travel, there is a “very low degree of confidence or certainty” that the available and proposed spill mitigation measures would be adequate.140

4.5.3 Unrealistic expectations of spill response performance

131. Transport Canada has established the preparedness standard that Response Organizations must satisfy. For a 10,000 ton spill, Transport Canada calls for oil to be recovered in 10 days once equipment is on the scene.141 It appears that Trans Mountain’s spill scenarios are, accordingly, based on a 10-day period.

132. The studies and scenarios should examine a more complete and accurate picture. Trans Mountain defined a “credible worst-case spill” as up to 20,000 tonnes.142 The Application’s analysis should reflect this possible scenario.

133. To assess a credible worst-case spill, the analysis should consider the actual duration required to recover oil from water and shorelines, taking weathering into account.143 Such operations can expand over months and are unlikely to be completed in 10 days.144

140 Stafford Reid Report, Exhibit C86-19-1, PDF page 123. 141 Stafford Reid Report, Exhibit C86-19-2, PDF page 23. 142 Stafford Reid Report, Exhibit C86-19-2, PDF page 23. 143 Stafford Reid Report, Exhibit C86-19-2, PDF page 23. 144 Stafford Reid Report, Exhibit C86-19-2, PDF page 23.

[26]

4.5.4 Lack of substantive response gap analysis

134. A “response gap analysis’ is a structured approach used in emergency response planning to describe realistic limitations that might affect a response operation. Such limitations can be imposed by environmental conditions and safety considerations.145

135. Other regulatory regimes address these considerations within their emergency response planning. For example, the State of Alaska has clearly defined, under regulation, the necessary environmental conditions to consider in emergency response planning. These include:

a. weather (e.g. wind, visibility, precipitation, and temperature);

b. sea states, tides, and currents;

c. ice and debris; and

d. hours of daylight.146

136. The Application, by contrast, fails to consider these factors through a substantive response gap analysis.147

4.5.5 Inadequate spatial scoping

137. Trans Mountain’s Project response plan is limited to the 12 nautical mile territorial zone despite the fact that Canadian interests extend to the 200 nautical mile Economic Exclusion Zone. Trans Mountain attempts to justify the limited scope of its response plan by relying on its risk assessment.148 Given that the results of Trans Mountain’s risk assessment are not reliable, Trans Mountain has no basis on which to justify limiting the boundary.

138. Even if a reliable risk assessment could be produced that demonstrated a low probability of a tanker casualty beyond the study boundary, the consequences of any spill or malfunction—should one occur—would be very high.149 Accordingly, Trans Mountain should be required to produce a response plan that extends to the 200 nautical mile Economic Exclusion Zone.

4.5.6 Inadequate incident management

139. Even within the 12 nautical mile zone that it has considered, Trans Mountain’s proposed Emergency Management Planning is inadequate for a number of reasons.

145 Stafford Reid Report, Exhibit C86-19-2, PDF page 24. 146 Stafford Reid Report, Exhibit C86-19-2, PDF page 26. 147 Stafford Reid Report, Exhibit C86-19-2, PDF page 30. 148 Stafford Reid Report, Exhibit C86-19-2, PDF page 68. 149 Stafford Reid Report, Exhibit C86-19-2, PDF page 68.

[27]

4.5.6.1 Canadian Coast Guard not prepared

140. Once a ship owner reaches the limits of its financial responsibility, the Canadian Coast Guard takes authority over the response. This transfer of responsibility generally occurs well before operations are complete.150 Trans Mountain’s reply to the Cowichan Tribes’ information request affirmed this as “a likely scenario”.151

141. However, the Canadian Coast Guard is “poorly prepared” to take over management of a major tanker casualty and spill.152 The Canadian Coast Guard adopted the “International Command System” for spill operations in March 2013, and has not yet built required competencies and capacity.153 There is no evidence that the Canadian Coast Guard has the staffing, skills, or cross-border relationships to take authority in the event of a spill that requires transboundary U.S.-Canada operations.154

4.5.6.2 Preparedness guidelines inadequate

142. Furthermore, the Application’s preparedness guidelines are inadequate.155 Although the Application identifies the role of the Incident Command System, Incident Commanders and members of the Incident Management Team require comprehensive operational guidelines and manuals. During the “pandemonium” of a major incident, the teams must be able to refer to pre-developed operations plans, templates, defined processes, and tactical considerations.156 Completion of these emergency response procedures must be a pre- condition of Project operation.

4.5.6.3 Emergency response procedures must be disclosed to First Nations

143. The Cowichan Tribes must know how a spill will be handled within its Traditional Territory. To ensure informed decision-making, all stakeholders must have access to industry-developed guidelines and manuals on key operations, which Trans Mountain has not disclosed to the Cowichan Tribes.157

4.5.7 Inadequate assessment of shore workforce

144. The Application fails to present analysis or modeling of the workforce, tools, management,158 and health and safety considerations159 that shoreline operations would

150 Stafford Reid Report, Exhibit C86-19-2, PDF page 4. 151 Stafford Reid Report, Exhibit C86-19-2, PDF page 4; Exhibit 315-15, 2.1.08(a), PDF page 35. 152 Stafford Reid Report, Exhibit C86-19-2, PDF page 4. 153 Stafford Reid Report, Exhibit C86-19-2, PDF page 4. 154 Stafford Reid Report, Exhibit C86-19-2, PDF page 4. 155 Stafford Reid Report, Exhibit C86-19-2, PDF page 5. 156 Stafford Reid Report, Exhibit C86-19-2, PDF page 5. 157 Stafford Reid Report, Exhibit C86-19-2, PDF page 5. 158 Stafford Reid Report, Exhibit C86-19-2, PDF page 16. 159 Stafford Reid Report, Exhibit C86-19-2, PDF page 19.

[28]

involve. In the event of a major marine spill, a workforce of “several thousand” could be required for shoreline cleanup, oily waste management, and wildlife response.160

4.5.8 Inadequate emergency response planning regarding wildlife

145. The Application provides “little detail regarding oiled wildlife response”. In British Columbia, capacity-building around emergency responses for oiled wildlife are largely left to non-government organizations.161 In response to Cowichan Tribes’ information request, Trans Mountain declined to provide information about existing capacity to rescue and rehabilitate oiled wildlife.162

146. The Application cites Transport Canada’s 1995 “Standards for a Response Organization,” which does not include protection and rehabilitation for oiled wildlife. The only identified measure is “hazing,” or scaring birds away from oiled areas.163

147. Given the limited capacity in British Columbia, and the Application’s reliance on hazing as the only requirement,164 it appears that the rescue and rehabilitation of oiled Cowichan Tribes Resources of Value, both birds and mammals, has not been adequately addressed.165

4.5.9 Inadequate planning for oily wastes management

148. The Project Application fails to provide an integrated process to manage oily waste generated from marine shipping incidents in the context of both on-shore and on-water operations. These deficiencies will contribute to both operational consequences and cost.166

149. Trans Mountain fails to explain:

a. how temporary disposal methods, such as floating oil bladders, will be managed;167

b. how emulsified bitumen-based crude oils will be managed;168 and

c. the levels of oily wastes that can be anticipated in certain scenarios.169

150. Trans Mountain has no plan for accessing and removing oily wastes in remote locations. Trans Mountain did provide access options for a pipeline spill. While some of these options

160 Stafford Reid Report, Exhibit C86-19-2, PDF page 10. 161 Stafford Reid Report, Exhibit C86-19-2, PDF page 38. 162 Stafford Reid Report, Exhibit C86-19-2, PDF page 40-41; TM Response to Cowichan Tribes IR No. 1, Exhibit B121, 1.18(c) PDF page 67. 163 Stafford Reid Report, Exhibit C86-19-2, PDF page 38. 164 Stafford Reid Report, Exhibit C86-19-2, PDF page 40. 165 Stafford Reid Report, Exhibit C86-19-2, PDF page 38. 166 Stafford Reid Report, Exhibit C86-19-2, PDF page 43 167 Stafford Reid Report, Exhibit C86-19-2, PDF pages 47-48. 168 Stafford Reid Report, Exhibit C86-19-2, PDF page 50. 169 Stafford Reid Report, Exhibit C86-19-2, PDF page 51.

[29]

might be suitable for some marine coastal environments (helicopter and ATV), Trans Mountain’s response does not account for factors such as tides and waves.170

151. Notably, Trans Mountain failed to confirm whether waste recovery and treatment facilities in Surrey, Abbotsford and Burnaby could manage the entire volume of oily wastes generated by a credible worst case spill.171

152. The Project Application and the regulatory framework for disposal of oily waste are severely lacking. Canadian laws do not require Canada's Response Organizations or the shipping industry to undertake advanced planning for final oily waste disposal in response to large incidents.172 Transport Canada oversees only temporary storage of oily wastes at the beach-head for a limited period of time. At the provincial level, there are no criteria for site and facility preparedness for large volumes of bitumen-based crude oily wastes. Operational impediments can be caused by an absence of proactive planning.173

153. Final solutions for oily waste disposal can account for one-third the overall cost of a large oil spill. Once a tanker owner reaches the prescribed limit for financial liability, government agencies must make a claim for international funds and for cost recovery from the Ship-source Oil Pollution Fund. This includes the cost of dealing with final solutions for oily waste. It is the taxpayer who will bear the cost once financial limits have been exceeded.174

4.5.10 Inadequate emergency tug services

154. When considering the rescue of a disabled, drifting oil tanker outside the entrance to the Strait of Juan de Fuca, Trans Mountain proposed that the tanker would be rescued by existing commercial tugs.175 Relying on commercial tugs and crews for this specialized, high-risk task will have a low probability of success.176

155. Trans Mountain decided that the probability of an incident is too low to warrant investment in a purpose-built ocean rescue tug.177 Trans Mountain cannot rely upon its risk assessment to conclude that a purpose-built ocean rescue tug is not needed. Trans Mountain’s rationale on this point is an example of its unbalanced approach to risk assessment: “Probability” and “consequences” should have equal weight in risk assessment.178

170 Stafford Reid Report, Exhibit C86-19-2, PDF page 50. 171 Stafford Reid Report, Exhibit C86-19-2, PDF page 55. 172 Stafford Reid Report, Exhibit C86-19-1, PDF page 57. 173 Stafford Reid Report, Exhibit C86-19-1, PDF pages 43-57. 174 Stafford Reid Report, Exhibit C86-19-1, PDF page 45. 175 Stafford Reid Report, Exhibit C86-19-1, PDF page 54. 176 Stafford Reid Report, Exhibit C86-19-1, PDF page 54. 177 Stafford Reid Report, Exhibit C86-19-1, PDF page 56. 178 Stafford Reid Report, Exhibit C86-19-1, PDF page 56.

[30]

4.5.11 Inadequate salvage operations

156. An oil tanker casualty from collision or grounding can require salvage operations. These may include determination of a damaged vessel’s stability, repair of the vessel’s hull, operation of a water and oil cargo removal pump, remotely operated underwater vehicles, and more.179

157. Canada does not have a salvage regime.180

158. Trans Mountain’s Emergency Response Plan relies on sourcing an available salvage company from outside British Columbia.181 There is only marginal likelihood that an international salvage company could make a timely arrival.182 Salvage companies could likely take a week or more to arrive, during which the tanker’s structural failures or oil release could continue.183

159. Trans Mountain’s rationale for this decision again relies on its risk assessment. Trans Mountain concludes that the probability of needing a salvage company is too low to warrant stationing qualified salvors in British Columbia.184 Given that the results of Trans Mountain’s risk assessment are not reliable, adequate salvage operations should be required as a condition of Project approval.

160. In response to Cowichan Tribes’ request for further information about salvage, Trans Mountain indicated that, at the time of an incident, a “salvage branch” would be designated under the Incident Command System, as directed by Unified Command.185 Neither Trans Mountain nor the Western Canada Marine Response Corporation has an existing “salvage branch.”186 Nor do Transport Canada’s Response Organization Standards address salvage.187 The Stafford Reid Report concludes that the lack of an existing or pre- designated Incident Command System Salvage Branch, with incident protocols, guidelines, or templates, is sub-standard.188

4.5.12 No tanker places of refuge

161. The Application also fails to identify the need to plan for places of refuge. The availability and location of a place of refuge in the event of a marine incident has the potential to significantly affect a coastal community’s welfare, the environment and the overall cost of

179 Stafford Reid Report, Exhibit C86-19-1, PDF page 61. 180 Stafford Reid Report, Exhibit C86-19-1, PDF page 70. 181 Stafford Reid Report, Exhibit C86-19-1, PDF page 61. 182 Stafford Reid Report, Exhibit C86-19-1, PDF page 61. 183 Stafford Reid Report, Exhibit C86-19-1, PDF page 65. 184 Stafford Reid Report, Exhibit C86-19-1, PDF page 61. 185 Stafford Reid Report, Exhibit C86-19-1, PDF page 66; TM Response to Cowichan Tribes IR No. 1, Exhibit B121, 1.13(e) PDF page 53. 186 Stafford Reid Report, Exhibit C86-19-1, PDF page 66. 187 Stafford Reid Report, Exhibit C86-19-1, PDF page 66; Transport Canada Response Organization Standards, Website accessed on August 26, 2015. 188 Stafford Reid Report, Exhibit C86-19-1, PDF page 66.

[31]

the response.189 The TERMPOL report identifies the 2007 National Places of Refuge and Contingency Plan but provided no insights into how a specific scenario involving a tanker carrying bitumen-based crude oils, including highly volatile dilbit, would proceed.190

162. There has been no meaningful consultation on places of refuge with coastal First Nations and coastal communities.191

163. Trans Mountain rationalized the lack of consideration of places of refuge in the Application by—once again—relying on its risk assessment and conclusion that there is only a low probability of a marine vessel casualty.192 Given that Trans Mountain’s risk assessment is not reliable, there is no basis on which to justify Trans Mountain’s refusal to address places of refuge.

4.5.13 Performance measures needed to address deficient regulatory regime

164. It is critical that the NEB assess the proposed emergency response measures given that there are no federal laws, standards, or guidelines that establish a comprehensive major vessel casualty response regime.193

165. The need for such a regime was raised over 36 years ago, but there has been minimal investment in coastal protection measures, leading to gaps in the following areas: 194

a. Ocean rescue of a disabled oil tanker by purpose-built tugs supported with training, equipment, and exercising;

b. Salvage of an oil tanker with structural failure, provided by regionally-located salvor companies that are supported with specialized salvage equipment already in position;

c. Places of refuge, established with community consultation, which could be used by an oil tanker that needs assistance, and/or to mitigate wide-spread pollution.

166. Notably neither of two reports prepared by the Tanker Safety Expert Panel for Transport Canada195 address tug rescue and regional salvage as coastal protection investments.196

167. Transport Canada’s certification standards for private-sector spill Response Organizations are over two decades old, and do not actually require that the Response Organization be

189 Stafford Reid Report, Exhibit C86-19-1, PDF page 59. 190 Stafford Reid Report, Exhibit C86-19-1, PDF page 60. 191 Stafford Reid Report, Exhibit C86-19-1, PDF page 60. 192 TM Response to Cowichan Tribes IR No. 1, Exhibit B121, PDF page 54, 1.14(a). 193 Stafford Reid Report, Exhibit C86-19-1, PDF page 8. 194 Stafford Reid Report, Exhibit C86-19-1, PDF page 8. 195 A Review of Canada’s Ship-source Oil Spill Preparedness and Response Regime – Setting the Course for the Future, 2013; A Review of Canada’s Ship-source Spill Preparedness and Response: Setting the Course for the Future, Phase II – Requirements for the Arctic and for Hazardous and Noxious Substances Nationally, 2014 196 Stafford Reid Report, Exhibit C86-19-1, PDF page 8.

[32]

able to provide adequate coastal protection. Specifically, the certification standards fail to address the following critical areas:

a. Establishment of a large shoreline workforce;

b. Providing for the final disposal of oily wastes;

c. Alternative response technologies, such as in situ burning; and

d. Managing wildlife, including the rehabilitation of birds and mammals.197

168. The Project cannot be in the public interest when emergency response measures are so deficient.

169. In response to the absence of federal laws, standards, or guidelines, the Cowichan Tribes proposes conditions that must be met before the Project can proceed to ensure substantive coastal protection. The goals of these conditions are to:198

a. Guarantee protection of section 35 rights and title of coastal First Nations whose territorial waters are used by oil tankers, and at risk of a tanker casualty and oil spill;

b. Comply with the precautionary approach as defined under Canada’s Ocean Act; and

c. Demonstrate a world-class system to manage a tanker casualty and oil spill.

170. These conditions would require that performance measures be satisfied in the following areas before the Project can proceed:

a. Ocean Tug Rescue;

b. Salvage;

c. Mechanical Oil Recovery;

d. Area-Based Response Gap Analysis;

e. Net Environmental Benefit from Shoreline Treatments;

f. Chemically Hazardous Situations and Response Delay;

g. Large Oil Spill Workforce; and

197 Stafford Reid Report, Exhibit C86-19-1, PDF page 8. 198 Stafford Reid Report, Exhibit C86-19-1, PDF page 8.

[33]

h. Oily Waste Management.199

171. Please see Exhibit C86-19-1, PDF pages 37-49 for an in-depth discussion of the noted performance measures.

4.6 Risks are too high

4.6.1 Project should not proceed

172. Trans Mountain would assess and weight the risk of an oil spill as the result of a numerical calculation, relying on Transport Canada’s formula:

Probability x Environmental Impacts = Environmental Risk Index.200

173. Trans Mountain relies on statistical models derived from different circumstances and conditions to essentially say: “since probability is low, the need to know about or plan for impacts is limited”.

174. But assessing risk is not so simple. The probability that a marine accident or spill will occur is really a guess. Risking British Columbia’s coastline on the basis of a mathematical model that itself relies on a variety of factual assumptions undisclosed to the Intervenors seems foolhardy.

175. We do know that:

a. risks will increase with increased traffic.

b. other proposed projects on the mainland coast will increase traffic on the Georgia and Juan de Fuca Straits even more.

c. the substances proposed to be transported are some of the most harmful to the environment if accidentally released.

d. Trans Mountain takes no responsibility for any marine shipping accidents.

e. Canada is not prepared to adequately respond to an event.

176. The NEB must respond to these factors in accordance with the precautionary principle. There is no justification for the increased risks that Trans Mountain is asking all those who rely on the health of our oceans to undertake.

199 Stafford Reid Report, Exhibit C86-19-2, PDF pages 37-46. 200 Transport Canada 2014, in Hatfield Report, at Exhibit C86-18-1, PDF page 17. 200 Hatfield Report, Exhibit C86-18-1, PDF page 17.

[34]

4.6.2 Alternatively, Project approval must be contingent

177. Trans Mountain concedes that “Given the existing and anticipated future third-party vessel traffic in the marine study area, marine traffic management and associated environmental effects is a collective issue that is best addressed at a regional scale. Trans Mountain is committed to participating in such initiatives.”201

178. So long as improved marine traffic management and emergency response systems remain outside the conditions required for Project approval, the true costs of the Project are not fully accounted for in the cost-benefit analysis. To be in the public interest, the Project should only proceed once marine traffic management and emergency response systems are improved and in place. These may be outside of Trans Mountain’s control, but these are factors that must be considered in the public interest.

179. The Cowichan Tribes therefore requests that the NEB impose pre-conditions to Project operation, which recognize that the existing marine transport and safety system cannot support the additional stresses that this Project—and many others—are likely to impose on it.

5. FAILURE TO CONSIDER PIPELINE MALFUNCTION RISK

5.1 Inadequate scoping

5.1.1 Study area too small

180. Trans Mountain’s inadequate risk assessment is not limited to tanker spills. The Application also fails to adequately account for marine impacts that would result from a pipeline rupture that releases bitumen into the Fraser River.

181. The Application’s Regional Study Area is too small to capture all the effects of a pipeline accident or spill. The Application’s modeling of a pipeline rupture indicates that spilled oil would likely reach the Salish Sea and potentially the southern Gulf Islands.202 Despite this conclusion, the Application does not consider the implications of a spill in the lower Fraser River travelling outward, including impacts to marine resources in the Salish Sea, including to fish and fish habitat as defined by the Fisheries Act203 and incorporated into section 5 of CEAA 2012.204 This omission is a substantial gap in the assessment.205 As a result, the Cowichan Tribes does not know the impact that this Project could have on its Resources of Value.

182. To comply with the prescribed standards and filing requirements, the Application should clearly outline the extent to which an oil spill in the lower Fraser River could potentially

201 December 15, 2015 Final Argument of Trans Mountain at p. 63, Exhibit B444-2. 202 Hatfield Report, Exhibit C86-18-2, PDF page 6. 203 Fisheries Act, s. 2(1). 204 CEAA 2012, s. 5. 205 Hatfield Report, Exhibit C86-18-2, PDF page 6.

[35]

affect marine Elements of Concern in the Salish Sea.206 The Application should implement a larger Local Study Area to correctly describe potential impacts of a potential pipeline oil spill on freshwater fish and fish habitat, and to allow Cowichan Tribes and the NEB to accurately assess environmental affects.207

5.1.2 Failure to consider key resources of value

183. In addition to deficiencies in the spatial scale of scoping, Trans Mountain also fails to consider the effect that a pipeline rupture would have on key resources of value within the study area. For example, the Application does not consider how a pipeline rupture would affect marine invertebrates.208 This gap prevents the Cowichan Tribes from fully understanding and gauging the risks to their Resources of Value and constitutionally protected harvesting rights—and therefore prevents Crown consultation and accommodation in respect of these issues.

5.2 Inadequate assessment of pipeline spill effects on freshwater fish and habitat

5.2.1 Failure to assess impact on the Fraser River system

184. From a fisheries standpoint, the Fraser River is one of the most valuable river systems in the world.209 Millions of salmon are spawned and reared in the Fraser’s vast network of lakes and tributaries that are integral to this river system.210

185. To complete their lifecycle, all species of Fraser salmon must pass through the Lower Fraser River twice, regardless of spawning location.211 The different species of Fraser salmon rely on the Lower Fraser to varying degrees: “some populations use the Lower Fraser only as a migratory corridor; pink and chum rely heavily on the Lower Fraser for spawning grounds; and Chinook and coho spend a significant amount of time in the lower river and estuary as juveniles.”212 Due to the large diversity of populations and their variable life histories, protecting the lower Fraser River area is crucial.213

186. The Application fails to appreciate the nature of the Fraser River system, and correspondingly fails to assess the vulnerability of the relevant fish and fish habitat in significant ways.

187. In its Application, Trans Mountain’s hypothetical pipeline spill scenarios show that the most damage to freshwater fish and their habitats would come from a spill’s impacts on

206 Hatfield Report, Exhibit C86-18-2, PDF page 6. 207 Hatfield Report, Exhibit C86-18-1, PDF page 32. 208 Hatfield Report, Exhibit C86-18-1, PDF page 6. 209 Hatfield Report, Exhibit C86-18-1, PDF page 39. 210 Hatfield Report, Exhibit C86-18-1, PDF page 39. 211 Evaluation of impacts on Pacific herring and other forage fish from proposed Trans Mountain Pipeline Expansion Project Prepared for Raincoast Conservation Foundation by Dr. Caroline H. Fox (“Fox Report”); Fox Report, Exhibit C291-1-3, PDF page 47. 212 Fox Report, Exhibit C291-1-3 PDF page 47. 213 Fox Report, Exhibit C291-1-3PDF page 47.

[36]

fish spawning and rearing habitat—that is to say, on small- to medium-sized streams and side channels.214 However, all of the pipeline spill scenarios that Trans Mountain considered focus mainly on how a spill would affect freshwater fish in large rivers (the North Thompson, the Fraser River near Hope, and the Lower Fraser).215

188. Relying only on these scenarios, Trans Mountain concludes that a pipeline spill would have a relatively small effect on fish and their habitat.216 But Trans Mountain’s conclusion does not account for how a pipeline spill would affect the more vulnerable small- and medium- sized streams upon which fish populations depend.217

189. Sockeye, coho, chum, pink, and chinook salmon, eulachon, and white sturgeon—all Cowichan Tribes Resources of Value—spawn and are reared in the Fraser River’s tributaries. To adequately assess the ecological risks arising from a pipeline rupture, Trans Mountain should provide spill scenarios that include the valuable salmon spawning habitat of the smaller Fraser River tributaries. The Application should determine where along the pipeline route the risks to freshwater fish are greatest, and whether pipeline spills could affect more than one cohort of fish.218 Without this information, the risks to and effects on the Cowichan Tribes’ Aboriginal harvesting rights cannot be properly accounted for and addressed.

190. Trans Mountain has filed reply evidence to indicate that the Application’s assessment of spill-related environmental effects is representative of the environmental effects that could result from a large oil spill at almost any location along the pipeline corridor, including effects that could occur in smaller streams.219 In light of the high ecological value of these smaller waterways and the corresponding consequence, this assumption is not acceptable. Consideration of additional spill scenarios for small- to medium-sized streams and side channels remains necessary.

5.2.2 Omission of resources of value and conservation units

191. The Application’s chosen “Valued Ecosystem Components” for freshwater fish and fish habitat do not fully align with fish species that are considered valuable to the Cowichan Tribes and many other user groups.220 For example, sockeye, chum, and pink salmon were excluded from the list of indicator species.221 Trans Mountain asserts that the species it selected for consideration are better able to indicate the Project’s potential impact, based on

214 Hatfield Report, Exhibit C86-18-1, PDF page 39, citing Exhibits B18-2, B18-15 and B18-16. 215 Hatfield Report, Exhibit C86-18-1, PDF page 37. 216 Hatfield Report, Exhibit C86-18-1, PDF page 39. 217 Hatfield Report, Exhibit C86-18-1, PDF page 39. 218 Hatfield Report, Exhibit C86-18-1, PDF page 38. 219 TM Reply Evidence, Part 1; Exhibit B417-2, 28.1.3, PDF pages 305-307. 220 Hatfield Report, Exhibit C86-18-1, PDF page 4. 221 Hatfield Report, Exhibit C86-18-1, PDF page 4.

[37]

their geographical distribution.222 Cowichan Tribes submits that excluding sockeye, chum, and pink salmon as indicator species simply because there are other species that are more widely distributed geographically fails to appreciate the intrinsic value of these species to the communities that rely on them.

192. Furthermore, Trans Mountain also failed to consider the effects of a spill on Conservation Units of salmon that are not currently listed as Federal or Provincial species at risk.223 Trans Mountain replies that Conservation Units need not be assessed in light of the Application’s consideration of Pacific salmon at the species level.224 The Cowichan Tribes submits that the grouping of salmon in Conservation Units reflects evolutionarily distinct populations of salmon with unique ecology, life history, and genetics.225 As such, it is not accurate to suggest that focusing on salmon at the species level will produce the same results as would occur if Conservation Units were also identified as indicators. Excluding these fish stocks as indicators for oil spill effects is a notable oversight, given their significance and value to many Aboriginal communities—including the Cowichan Tribes.

5.2.3 Spill would have significant impacts

193. Trans Mountain’s conclusions about freshwater fish and habitat recovery from a pipeline spill rest on incomplete information. The Application bases its conclusions on “relatively few” freshwater spill studies, and fails to adequately consider the operational difficulties associated with recovering bitumen from freshwater systems.226 Bitumen behaviour in fresh water is less well understood than that of light crude oil. Heavy hydrocarbons such as bitumen tend to sink and are slower to dissolve—making recovery more difficult. The bitumen that remains in freshwater rivers and streams will have both short-term consequences, such as toxicity, and long-term consequences, such as chronic defects, loading in the sediment, and greater exposure to a larger scope of animals and plants. Recovery of tributaries will take longer than large rivers. When more cohorts of fish are affected, the residual effects to the population become more long-term.227

194. Evidence filed by the Intervenors demonstrates that individual Pacific Salmon Conservation Units are likely to be adversely affected by an oil spill.228 Salmon Conservation Units that have suffered impacts to genetic diversity from declines in numbers or range are “less resilient to stressors and are at a greater risk of extinction.” 229 Stressors include climate change and habitat loss that introduce threats to salmon’s thermal

222 B315-15 Trans Mountain Response to Cowichan Tribes IR No. 2 – A4H8L1, cited in Hatfield Report, Exhibit C86-18-2, PDF page 3. 223 Hatfield Report, Exhibit C86-18-1, PDF pages 30-31. 224 TM Reply Evidence, Part 1; Exhibit B417-2, 35.2.3.2, PDF pages 395-396. 225 Fox Report, Exhibit C291-1-3, PDF pages 8, 15 and 47. 226 Hatfield Report, Exhibit C86-18-1, PDF page 38. 227 Hatfield Report, Exhibit C86-18-1, PDF page 38. 228 Fox Report, Exhibit C291-1-3, PDF page 47. 229 Fox Report, Exhibit C291-1-3, PDF page 48.

[38]

limits or reduce food supply: “[i]n a weakened state, the presence of low exposure to pollution that would otherwise be tolerated or overcome, becomes fatal.”230

195. In the event of a spill occurring in the Fraser River during the juvenile outmigration of abundant runs, such as lake-type sockeye or ocean-type chinook, implications for the fish could be disastrous—with a cascading effect on those users and systems that rely on them.231

196. Salmonids would be particularly vulnerable to a discharge of diluted bitumen in the Fraser River: “outmigrating juvenile salmonids may ingest small oil droplets, and returning adults may absorb toxic polycyclic aromatic hydrocarbons dissolved from the diluted bitumen through their gills, or suffer gill fouling by small oil droplets.”232

197. Living Oceans’ evidence explains the effects on fish caused by absorbing compounds like bitumen-based crude oil:233

Absorption of toxic compounds dissolved from oil into the water column can cause death from narcosis, embryotoxicity to early life stages of fish … Early life stages of fish, especially of fish that spawn and pass through their initial developmental stages in the intertidal zones, are also vulnerable to embryotoxicity. Embryotoxicity involves disruption of the normal sequence of embryological development after egg fertilization, and is caused by polycyclic aromatic hydrocarbons (PAC). Fish embryos are most vulnerable immediately after hatching, and the threshold for onset of these effects is in the mid-parts per trillion (i.e., ng/L).

198. These consequences have not been adequately factored into the public interest analysis.

5.3 Omissions related to birds, habitat and mortality

199. The Application fails to consider how a pipeline spill could affect riparian and wetland birds and their habitat. This is another significant information gap.234 Despite Trans Mountain’s position that contamination from a pipeline or construction spill does not present a mortality risk, spills and contamination have both short-term and long-term effects on the habitat and mortality of wetland and riparian birds. Accordingly, wetland and riparian indicator species, such as mallards (a Cowichan Resource of Value), which breed in wetlands,235 should have been selected and studied.236

230 Fox Report, Exhibit C291-1-3, PDF page 48. 231 Fox Report, Exhibit C291-1-3, PDF page 47. 232 Dr. Short, “Fate and effect of oil spills”; Exhibit C214-18-3, PDF page 36. 233 Dr. Short, “Fate and effect of oil spills”; Exhibit C214-18-3, PDF pages 27 and 29. 234 Hatfield Report, Exhibit C86-18-2, PDF page 25. 235 Hatfield Report, Exhibit C86-18-2, PDF page 19. 236 Hatfield Report, Exhibit C86-18-2, PDF page 25.

[39]

200. In addition, the Application fails to consider diving species among the avian indicator species chosen to evaluate the potential effects of an oil spill near the Port Mann Bridge.237 A diving species such as a merganser (also a Cowichan Resource of Value)238 would be more vulnerable to an oil spill than the species Trans Mountain has selected. Diving ducks spend more time in the main water channel, where spilled oil is more likely to gather, and they spend most of their time on the water’s surface, where spilled oil is also most likely to be found.239

6. FAILURE TO ADDRESS NORMAL OPERATIONS IMPACT

6.1 Inadequate consideration of Project effects on key species and habitats

201. The Application also fails to identify and assess the effects that normal operation of maritime shipping will have on significant species and habitats. Trans Mountain’s review of invertebrate species and habitats is not adequate to determine how they, and thus Cowichan harvesting rights, may be affected by marine shipping.

6.1.1 Marine invertebrates

202. The Cowichan Tribes have identified many invertebrate species resident in the Salish Sea as Resources of Value.240 Members of the Cowichan Tribes currently practice traditional harvesting of marine invertebrate species. This is a constitutionally protected Aboriginal right.

203. Marine invertebrates are diverse, and range from the completely sessile to the highly mobile. Many forms depend on different habitats throughout their life cycle.241

204. Trans Mountain’s review of the current status of marine invertebrates is inadequate.242 Sections 5 and 19 of CEAA 2012 require Trans Mountain to consider the Project’s effects on fish, as defined in s. 2(1) of the Fisheries Act: fish, shellfish, crustaceans, marine animals and any parts of shellfish, crustaceans or marine animals.243 Despite this requirement, the Application fails to fully account for the invertebrate members of this “fish” family.244

205. For example, of the Cowichan Tribes’ marine invertebrate Resources of Value, only the Dungeness Crab is reviewed, and only in the Ecological Risk Assessment for Marine Spills.245 To meet the CEAA 2012 requirements and to enable accurate assessment of

237 Hatfield Report, Exhibit C86-18-2, PDF page 21. 238 Hatfield Report, Exhibit C86-18-2, PDF page 20-21. 239 Hatfield Report, Exhibit C86-18-2, PDF page 21. 240 Hatfield Report, Exhibit C86-18-1, PDF page 47. 241 Hatfield Report, Exhibit C86-18-1, PDF page 47. 242 Hatfield Report, Exhibit C86-18-1, PDF page 51. 243 CEAA 2012, ss. 5 and 19. Fisheries Act RSC 1985 c F-14 at s 2(1). 244 Hatfield Report, Exhibit C86-18-1, PDF page 51-53 245 Hatfield Report, Exhibit C86-18-1, PDF page 51.

[40]

Project effects on the marine environment and Cowichan’s harvesting rights, more information about more marine invertebrates should be included. These data should include their trophic position, habitat, reproductive biology, larval duration, ontogenetic habitat shifts, and key species associations.246

6.1.2 Marine invertebrate habitat

206. Sections 5 and 19 of CEAA 2012 require Trans Mountain to sufficiently review impacts to fish habitat (defined by the Fisheries Act as spawning grounds and any other areas, including nursery, rearing, food supply and migration areas) on which fish depend directly or indirectly in order to carry out their life processes.247 The information included in the Application is not adequate for an informed analysis of potential Project effects on marine invertebrate habitat.248

207. Trans Mountain describes only the physical shoreline249 and states that exposed, rocky shorelines have low biodiversity and productivity.250 This unsubstantiated statement seems questionable given that the exposed rocky shorelines within the study area are renowned for their rich intertidal ecosystems. Botanical Beach Provincial Park and Race Rocks Ecological Reserve are examples. The noted inconsistencies raise “serious technical concerns” about the validity of the analysis.251 Trans Mountain is required by the NEB Filing Manual to present “defensible” lines of reasoning “supported by facts”.252 Its shoreline characterization fails to meet this criterion.

6.1.3 Kelp forest

208. A third key omission relates to the Application’s exclusion of kelp forests from consideration.253 Bull kelp and giant kelp form canopies that provide habitat for many marine fish and invertebrates. They also support herbivores, detrivores, and the organisms that feed on them,254 such as rockfish (a Cowichan Resource of Value).255

6.2 Inadequate identification and assessment of cumulative effects

209. CEAA 2012 requires that the cumulative effects of physical activities in a region be studied, and that those study results be considered in the environmental assessment.256

246 Hatfield Report, Exhibit C86-18-1, PDF page 51. 247 Fisheries Act RSC 1985 c F-14 at s 2(1). 248 Hatfield Report, Exhibit C86-18-1, PDF page 52. 249 In the Marine Transportation portion, and the Marine Spills Ecological Risk Assessment, Trans Mountain 2013, Vol 8B – Marine Resources: 4.3, cited in Hatfield Report, Exhibit C86-18-1, PDF page52. 250 Hatfield Report, Exhibit C86-18-1, PDF page 58. 251 [original EF wording: serious technical concerns about the validity of biological sensitivity factors used to categorize shoreline habit, PDF page in the Marine Spills Ecological Risk Assessment.] 252 NEB Filing Manual, PDF page 41, NEB Filing Manual . 253 Hatfield Report, Exhibit C86-18-1, PDF page 52. 254 Hatfield Report, Exhibit C86-18-1, PDF page 52. 255 Hatfield Report, Exhibit C86-18-2, PDF page 8. 256 CEAA 2012, Section 4(1)(i)

[41]

Trans Mountain’s failure to assess cumulative effects related to aquatic invasive species is a significant gap in the Application.

210. Trans Mountain asserts that the potential cumulative effects of marine transportation on marine fish and habitat are adequately captured by considering just three indicators, based on the assumption that marine shipping could disrupt fish and habitat only by vessel wake. From these conclusions, Trans Mountain excluded from its analysis all fish outside the intertidal zone—including 17 marine Species at Risk.257 But considering vessel wake alone is insufficient to capture the ways in which marine transportation may cumulatively affect marine fish and habitat.258

211. Tankers, when they release ballast water, can introduce aquatic invasive species.259 Aquatic invasive species can have direct, negative effects on fish (for example, if a pathogen or parasite is introduced), or fish habitat (for example, if an introduced grazer removes vegetation).260

212. Although Trans Mountain’s Application considers aquatic invasive species introduced by ballast water in the Westridge Marine Terminal, it is highly likely that the species would spread into the Strait of Georgia and beyond.261 There is no viable way to eliminate the risk of introducing aquatic invasive species.262 Therefore, Trans Mountain should include in the Marine Transportation section of the Application an environmental effects assessment for potential ballast water introduction of aquatic invasive species. Indicators and measurement endpoints for marine invertebrates and supporting habitat should be defined to reflect these potential effects.263

213. The Application states that aquatic invasive species will be mitigated according to the Canada Shipping Act. However, the Act’s protections are weaker than international regulations, which are moving towards ballast water treatment measures that reduce the concentrations of living organisms to the standards of the International Maritime Organization Ballast Water Management Conference. In addition to assessing the potential cumulative and residual effects of invasive aquatic species on marine fish and habitat, the Project’s mitigation measures should mandate ballast water treatment to the International Maritime Organization’s standards.264

214. In addition, the Application should have considered the potential cumulative effects of aquatic invasive species in light of a marine spill. While an intact, biodiverse marine community is more likely to resist invasive species, it is notable that the Salish Sea in 2014

257 Hatfield Report, Exhibit C86-18-2, PDF page 4. 258 Hatfield Report, Exhibit C86-18-2, PDF page 5-6. 259 Hatfield Report, Exhibit C86-18-2, PDF page 4. 260 Hatfield Report, Exhibit C86-18-2, PDF page 4. 261 Hatfield Report, Exhibit C86-18-2, PDF page 4. 262 Hatfield Report, Exhibit C86-18-2, PDF page 2. 263 Hatfield Report, Exhibit C86-18-2, PDF page 4. 264 Hatfield Report, Exhibit C86-18-1, PDF page 4.

[42]

is already significantly depleted by overfishing and is host to many invasive species.265 If oil were spilled in the Salish Sea, it could disrupt aquatic communities in ways that would allow invasive species to become “firmly established.”266

215. The Cowichan Tribes does not agree with Trans Mountain that its literature review is sufficient. The risks associated with aquatic invasive species warrant an environmental assessment.267

6.3 Inadequate mitigation measures proposed

216. The onus is on Trans Mountain to describe its mitigations measures.268 For all components of the Project, necessary mitigation measures include following standard protocols in accordance with legislation269 as well as best management practices.270

217. The Cowichan Tribes’ submissions on mitigation measures are provided in the context of the overarching critique that it is premature to identify and assess appropriate mitigation measures before understanding the Aboriginal rights at issue and the Project’s potential impacts on those rights. That has not yet occurred.

218. It is important that mitigation measures be “specific, measurable, achievable, and reportable, otherwise they cannot be enforced and instead provide the illusion of environmental protection where there is none.”271

219. Trans Mountain fails to uphold this standard throughout the Application. For example, the following mitigation measure has no use because it cannot be interpreted or enforced: “Noise abatement and construction scheduling will be considered during noise-sensitive periods, to limit disruption to sensitive receptors (e.g., nesting birds)”.272

220. When presenting mitigation measures, the Application often uses non-committal phrases and excludes reference points. Vague wording makes measures difficult to interpret and thus impossible to enforce.273 Non-committal mitigation measures proposed by Trans Mountain should not be relied upon to conclude that environmental impacts can indeed be mitigated.274

265 Hatfield Report, Exhibit C86-18-2, PDF page 15. 266 Hatfield Report, Exhibit C86-18-2, PDF page 15. 267 TM Reply Evidence, Part 3, Exhibit B417-4 at PDF pages 51-52. 268 NEB Filing Manual, PDF page 15-16, 57, NEB Filing Manual. 269 E.g. provincial Wildlife Act, (1996); federal Species at Risk Act (2002); Migratory Birds Convention Act (1994). 270 Hatfield Report, Exhibit C86-18-2, PDF page 25. 271 Hatfield Report, Exhibit C86-18-2, PDF page 26. 272 Hatfield Report, Exhibit C86-18-2, PDF page 26. 273 Hatfield Report, Exhibit C86-18-2, PDF page 35. 274 Hatfield Report, Exhibit C86-18-2, PDF page 26.

[43]

7. PROJECT JEOPARDIZES ABORIGNAL RIGHTS

221. Trans Mountain’s assessment of potential impacts to the Cowichan Tribes’ Aboriginal rights is restricted to current uses. The Cowichan Tribes’ Aboriginal rights extend beyond this limited definition, and thus the Project fails to address how they will be affected.275

222. In terms of current use, the Cowichan Tribes continue to exercise Aboriginal rights throughout their Traditional Territory. Members of the Cowichan Tribes fish or harvest a wide variety of seafood. Cowichan Tribes members also harvest aquatic and shoreline plants and hunt or trap waterfowl.276

223. Notwithstanding the serious gaps and flaws in Trans Mountain’s Application, the evidence summarized above discloses the potential for significant impacts to Cowichan Tribes’ rights. A tanker oil spill could devastate the Cowichan Tribes’ ability to exercise their Aboriginal rights.

224. Potential adverse effects on Aboriginal rights arising from the Project cannot be considered in isolation from other existing and proposed projects. If the Project and Roberts Bank Terminal 2 are both approved, without even considering the WestPac LNG Terminal proposed for Tilbury Island, we can expect an explosion of vessel traffic in the marine corridor at the very least.

225. The Cowichan Tribes is concerned about where these ships will anchor while they are awaiting permission to dock. Eight deep water anchorages exist in and about Cowichan Bay, very close to the Cowichan Tribes’ reserves.277 Already the Cowichan Tribes’ fishing rights are affected by tankers anchoring in Cowichan Bay as they await access to mainland ports. The Cowichan Tribes needs to be assured that such anchorages will not be used to manage increased marine traffic associated with the Project. Additional incursions into the Cowichan Tribes’ Traditional Territory by anchoring tankers can be expected to impact Cowichan Tribes members in their exercise of fishing rights at the least.

226. The increase in marine traffic can also be expected to affect the ability of Cowichan Tribes members to travel throughout their Traditional Territory in exercise of their Aboriginal rights. Travelling from their reserves on southeast Vancouver Island to exercise their fishing rights at the mouth of and in the south arm of the Fraser River will require members to access and cross the marine shipping corridor. Current marine traffic regulations would seem to give cargo and tanker traffic priority over Aboriginal fishing vessels.278

275 A3S0U5, Application Volume 3B: Aboriginal Engagement, section 1.3.5.1, PDF pg. 35. 276 Cowichan Tribes Summary of Rights evidence at para 1.8, Exhibit C86-12-1. 277 Nautical Chart #3313 Cowichan Tribes Written Evidence, Appendix E, C86-17-3, PDF pg. 2 278 See Schedule 1: International Regulations for Preventing Collisions at Sea, 1972 with Canadian Modifications, Rules 9(c) and 10(i) of the Collision Regulations, C.R.C., c. 1416, and section 24 of the Fisheries Act, RSC 1985 F- 14.

[44]

227. Trans Mountain’s proposed mitigation measure, that smaller commercial fishing vessels be required to carry Automatic Identification Systems, will not apply to non-commercial fishing vessels. In addition, Trans Mountain has admitted that they have “little direct control over the operating practices of the tankers or tugs as Project-related marine vessels are owned and operated by a third-party. No direct mitigation has been proposed by Trans Mountain for effects associated with increased Project-related marine transportation.”279 Without change to the regulations or better management of traffic flow, the increased traffic will affect members’ ability to fish, and may pose a danger to them when they are exercising their fishing rights.

8. THE NEB SHOULD RECOMMEND AGAINST THE PROJECT

228. Section 52(2) of the NEB Act identifies factors that the NEB must consider in assessing whether the Project is in the public interest:

Factors to Consider

In making its recommendation, the Board shall have regard to all considerations that appear to it to be directly related to the pipeline and to be relevant, and may have regard to the following:

(a) the availability of oil, gas or any other commodity to the pipeline;

(b) the existence of markets, actual or potential;

(d) the financial responsibility and financial structure of the applicant, the methods of financing the pipeline and the extent to which Canadians will have an opportunity to participate in the financing, engineering and construction of the pipeline; and

(e) any public interest that in the Board’s opinion may be affected by the issuance of the certificate or the dismissal of the application.

229. Trans Mountain would have the Board determine public interest through a utilitarian exercise whereby the ‘greatest good for the greatest number’ will prevail over ‘fearful local concerns’.

230. But the public interest weighs in favour of protecting and preserving Canadian coastlines and marine life—the health of which affects millions of people. And it exists in recognizing and respecting Aboriginal rights and the interests of the communities who live alongside and rely on Canadian coastal resources.

279 Supplemental Traditional Marine Resource Use – Marine Transportation Technical Report, CH2M Hill Energy Canada, Ltd., Exhibit B241-2, PDF pg 60.

[45]

231. The Cowichan Tribes submits that the NEB should recommend against approval of the Project because it cannot reasonably determine, based on the Application, that the Project is unlikely to cause significant adverse effects. The technical gaps in the Application prevent the NEB from determining whether any significant adverse effects could be justified in the circumstances. The significant technical gaps lead to an incomplete understanding of potential impacts and, consequently, to an incomplete understanding of impacts on Aboriginal rights.

232. The following conclusions can be reached based on the Application and response evidence:

a. The Project increases the risk of a tanker spill. Trans Mountain’s attempts to calculate absolute risk are unreliable.

b. Trans Mountain’s unbalanced approach to risk assessment discounts the consequences of an event, which leads to certain critical aspects of emergency response being excluded from planning;

c. While Trans Mountain has not studied the full impacts of a tanker or pipeline spill, both would have a significant negative impact on the environment.

d. The Application fails to demonstrate a sufficient understanding and assessment of technical, operational, and institutional aspects of bitumen-based crude oil and major vessel casualty response. This leads to flawed operational planning to respond to any spill.

e. Any spill would be a lot harder and take a lot longer to clean up than Trans Mountain’s optimistic estimates would indicate.

f. The absence of a major vessel casualty response regime defined under laws, standards, or guidelines in Canada presents major barriers to the implementation of any response measures identified by Trans Mountain in the Application.

g. The effect that the Project will have on Aboriginal rights during regular operations is largely unknown because impacts on resources of value to First Nations have not been adequately studied.

233. In such circumstances, the Project is not in the public interest.

9. CONSULTATION AND ACCOMMODATION NOT COMPLETE

9.1 Deep consultation owed

234. Members of the Cowichan Tribes continue to exercise Aboriginal rights to fish, harvest and hunt through the Traditional Territory:

[46]

a. Cowichan Tribes members fish or harvest a wide variety of seafood, including coho, chum, pink, chinook, and sockeye salmon, eulachon, cod, rockfish, halibut, sole, flounder, sturgeon, herring (and roe), red snapper, lingcod (and roe), skate, clams, cockles, oysters, scallops, urchins, chitons, octopus, sea cucumber, and abalone;

b. Cowichan Tribes members harvest aquatic plants, such as bull rush and reeds, and shoreline plants, such as cranberries, blueberries, and camas; and

c. Cowichan Tribes members hunt or trap waterfowl, including brant, canvasback, common merganser, and mallard.280

235. The Cowichan Tribes has a strong claim to Aboriginal title and rights in areas that could be affected by the Project. The Crown is therefore required to consult with the Cowichan Tribes on a deep level about this Project.

9.2 Additional study required to understand effects on Aboriginal rights

236. For the Crown, consulting in good faith means sharing all necessary information, giving the Aboriginal group the opportunity to respond to the information, listening to the First Nation’s concerns, and being willing to respond to those concerns and modify the proposed decision or course of action where it is reasonable to do so based on the strength of the claim and severity of the potential infringement.281

237. The Application fails to provide the necessary information that would allow the Cowichan Tribes to understand the impact the Project will have on the Cowichan Tribes’ exercise of Aboriginal rights. The Project’s impact on many Resources of Value to the Cowichan Tribes has not been considered at all.

238. Where relevant Resources of Value are considered, the Application only addresses Project impact on Aboriginal rights where Trans Mountain has determined the environmental impact to be “significant” as that term is understood in the Application:

[I]f there is an adverse effect on the environment caused by the Project, the NEB must determine whether that effect is significant after considering the mitigation measures that address the effect. Factors that should be considered in determining whether an adverse effect is significant include magnitude of the effect; geographic extent of the effect; duration and frequency of the effect; the degree to which the effect is reversible or irreversible; and ecological context.282

239. Given the scope of the assessment that Trans Mountain has conducted—covering an area from Edmonton to the Strait of Juan de Fuca—an impact might not be “significant” as

280 Cowichan Tribes Written Evidence at para. 1.14, Exhibit C86-12-1 281 Haida at para 42; Mikisew at para 64. 282 December 15, 2015 Final Argument of Trans Mountain, pp. 20-21; Exhibit B444-2, p. 58.

[47]

Trans Mountain applies the term, but could constitute an infringement of the Cowichan Tribes’ Aboriginal rights. More information and analysis is required.

240. As noted in the Cowichan Tribes Written Evidence:

The Cowichan Tribes are highly concerned that Trans Mountain’s application does not properly consider the risks associated with this Project. A pipeline or tanker accident could result in a significant oil spill that would have severe impacts on the environment and prevent the Cowichan Tribes’ from exercising Aboriginal rights. We are not convinced that appropriate spill response procedures and mechanisms are in place to address this risk.283

241. The likelihood and significance of a marine spill from Project tankers is of critical importance to Cowichan Tribes and it is necessary to formulate a suitable approach to consultation, including appropriate accommodation. Trans Mountain’s assessment is inadequate.

9.3 Project approval should be delayed

242. Project approval should be delayed until this information and analysis is undertaken. If consultation is to be meaningful, it cannot be delayed to the point where there may be a “clear momentum” toward a particular course of action.284 At the moment, available information about potential Project impacts is insufficient to adequately consult and accommodate.

10. COMMENTS ON DRAFT CONDITIONS

243. The Cowichan Tribes urges the NEB to impose measurable and verifiable conditions on Trans Mountain. As Dr. Hatfield concluded in his expert report: “One concern that applies in general to all areas of the application is the non-committal wording used in many proposed mitigation measures. Vague wording makes it difficult or impossible to interpret what is intended, and therefore impossible to enforce the measures.”285

244. Some of the draft conditions require Trans Mountain to file “updated assessments” (e.g. Draft Condition No. 46) or “plans” (e.g. Draft Condition No. 77). In such circumstances, Intervenors should have an opportunity to comment and, if necessary, apply to the NEB to review its public interest determination in light of the filing.

245. Any draft condition that contemplates engagement with Aboriginal groups or consideration of Aboriginal knowledge (e.g. Draft Condition Nos. 84, 98, 100) should require Trans Mountain to provide a copy of its filing to the relevant Aboriginal group for comment.

283 Cowichan Tribes Written Evidence, Exhibit C86-12-1, para 1.14 284 Sambaa K'e Dene Band v. Duncan, 2012 FC 204 at para 165; Squamish Nation v British Columbia (Minister of Community, Sport and Cultural Development) 2014 BCSC 991 at para 137. 285 Hatfield Report, Exhibit C86-18-1, Page 79

[48]

11. ADDITIONAL CONDITIONS REQUIRED

246. Based on the submissions above, the Cowichan Tribes submits that the following conditions are necessary to understand the impact that the Project may have on Aboriginal rights and to ensure that Project impacts do not infringe Aboriginal rights:

Proposed Condition Rationale Trans Mountain must file with the NEB, at least 90 days prior to See sections 4.3.1 and commencing construction, an updated report considering: (1) how all 4.3.2 types of bitumen-based crude oils expected to be transported by the Project will respond in Salish Sea conditions, including the results of lab testing performed under conditions representative of Salish Sea conditions; (2) how heavy grade (Phase IV and V) oils can be expected to respond in Salish Sea conditions. Trans Mountain must file with the NEB, at least 90 days prior to See sections 4.4.2, commencing construction, an emergency response plan that: (1) 4.4.9, 4.4.10, 4.5.4, considers how the chemical content of spilled substances could delay 4.5.5, 4.5.8, 4.5.12, response times, and includes procedures to mitigate; (2) includes and 4.5.13 updated spill trajectory modeling to anticipate oil behaviour in all relevant areas, including the Fraser River estuary plume; (3) extends to the 200 nautical mile Economic Exclusion Zone; (4) includes a plan to accelerate stranded bitumen’s rate of degradation; (5) includes and incorporates the results of area-specific response gap analyses; (6) plans for the protection and rehabilitation of oiled wildlife; (7) provides for net environmental benefit from shoreline treatments; and (8) addresses tanker places of refuge. Trans Mountain must file with the NEB, at least 90 days prior to See section 4.5.6.2 commencing construction, comprehensive emergency response operational guidelines and manuals. Trans Mountain must file with the NEB, at least 90 days prior to See section 4.5.6.3 commencing construction, confirmation that it has provided the Cowichan Tribes with industry-developed guidelines and manuals and any emergency response procedures that will apply within the Cowichan Tribes’ Traditional Territory. Trans Mountain must file with the NEB, at least 90 days prior to See sections 4.5.7, commencing construction, proof that existing marine emergency 4.5.8, 4.5.9, 4.5.10, response capabilities sufficient to satisfy performance measures in the 4.5.11, 4.5.13 following areas: (1) ocean tug rescue; (2) salvage; (3) mechanical oil recovery; (4) chemically hazardous situations and response delay; (5) large oil spill workforce; and (6) oily waste management. Trans Mountain must file with the NEB, at least 90 days prior to See sections 5.1.1., commencing construction, an updated environmental assessment that: 5.2.1 (1) considers the effect of a pipeline spill beyond the Regional Study Area to include the Salish Sea and Gulf Islands; (2) considers the effects of a pipeline spill on small- to medium-sized streams and side channels; and (3) considers the cumulative effects relating to aquatic invasive species. Trans Mountain must file with the NEB, at least 90 days prior to See section 4.4.6,

[49]

commencing construction, an updated environmental assessment that 5.1.2, and 5.3 considers the effect of bitumen-based crude oil on (1) canopy forming kelps; (2) marine invertebrates; and (3) riparian and wetland birds. Trans Mountain must file with the NEB, at least 90 days prior to See section 6.2 commencing construction, proof that it requires all tankers calling at the Westridge Marine Terminal to conduct ballast water treatment in accordance with the standards of the International Maritime Organization. Trans Mountain must file with the NEB, at least 90 days prior to See section 7. commencing construction, proof of a marine transportation management plan that limits use of deep water anchorages in and around Cowichan Bay by tankers calling at the Westridge Marine Terminal. Trans Mountain must file with the NEB, at least 90 days prior to See section 7. commencing construction, proof that it has offered Aboriginal groups funding to obtain and use Automatic Identification Systems if they so choose.

All of which is respectfully submitted this 12th day of January, 2016

Counsel for the Intervenor, Cowichan Tribes SONYA MORGAN Woodward & Company LLP 1022 Government Street, Suite 200 Victoria, BC V8W 1X7 Phone; (250) 383-2356 Fax: (250) 380-6560

[50]

Table of Contents