WRITTEN SUBMISSION TO THE REVIEW PANEL ROBERTS BANK TERMINAL 2 PROJECT APRIL 15, 2019

Table of Contents

i. Malahat Nation Overview and Background ii. Importance of Marine Resources iii. Malahat Nation Comments  Assessment of Impacts to Malahat Nation  Impacts to Crab and Crab Harvesting  Impacts to Marine Mammals, including Southern Resident Killer Whales  Impacts to Archaeological and Heritage Resources  Malahat Participation in Monitoring and Follow-up Programs iv. Concluding Remarks

Malahat Nation Overview and Background

The Malahat First Nation, Me’ le’ xelh Mustimuhw (“Malahat”) holds Aboriginal rights in, and Aboriginal title to, an area which includes the Roberts Bank Terminal 2 (the “Project”) proposed marine shipping route.

Malahat Nation members are descendants of the South , who are signatories to the Douglas treaties. Malahat people therefore possess the right to fish “as formerly” under the Douglas Treaties. In addition, Malahat is a member of the Te’mexw Treaty Association, which has been involved in negotiating a comprehensive modern treaty through the BC Treaty Commission process since 1995. Malahat people are known as “the saltwater people.” Ours is a marine-based Nation with a strong tradition of building, fishing, and traveling with canoes. Since time immemorial, we have utilized the resources of the Salish Sea and the Fraser River for physical, cultural, and spiritual sustenance. Malahat has relied on the ocean and its resources to sustain our people and our way of life for thousands of years.

Like other peoples, the Malahat traditionally followed a seasonal way of life and harvested different resources at different times of the year. Malahat utilized numerous fishing grounds, camps, and harvesting sites across our territory, including locations in the Saanich Inlet, the southern Gulf Islands, the San Juan Islands, and Roberts Bank. Historically, Malahat people travelled to the places described above using canoes, travelling across Haro Strait and throughout the Salish Sea to reach various fishing grounds, camps, and harvesting sites.

Importance of Marine Resources

Many of the traditional use sites and harvesting practices remain in use today. Malahat people continue to harvest many marine resources, including salmon, cod, halibut, octopus, crab, prawn, shellfish, seabirds and marine vegetation, and use the ocean to travel throughout our territory. Not only do the Malahat people rely on the Salish Sea for food and transportation, but it is through carrying out these practices that we share our teachings and transmit our culture to younger generations.

Healthy, sustainable fisheries are incredibly important to Malahat as they provide a key source of revenue for the Nation. Malahat holds an Area I commercial crab license, which is the only consistent source of seafood for commercial benefit as well as Food, Social and Ceremonial (FSC) use. This licence is fished directly within the proposed footprint of the proposed RBT2 project. Malahat Nation’s Area I Commercial Crab License has facilitated the harvest of Dungeness crab exclusively in this specific location for many years.

In addition to their economic importance, marine resources are also culturally and spiritually important. Much of the Malahat worldview centers on respect for life in all its forms, and the importance of the connections between these life forms.

In particular, the Southern Resident Killer Whales (“SRKW”) are of major significance in Malahat culture. These whales are important figures in Malahat stories and have a special place in Malahat spiritual beliefs. They are considered sacred, and Malahat people believe that they embody the spirits of

members who have passed away. Malahat also traditionally relied on the killer whales for assistance in the sockeye harvest, working with the whales to corral salmon into their reef nets.

Because of this belief system, Malahat has long been engaged in the stewardship of its marine resources. We actively participate in the Salmon Enhancement Program at the Goldstream Hatchery, with Malahat members participating in enumeration and enhancement activities throughout the spawning season. Malahat has also implemented a Stewardship Program which allows members to utilize Malahat’s boat to monitor the marine territory and report any environmental concerns.

Malahat takes its environmental stewardship responsibilities seriously and has been actively seeking to engage more deeply with Canada and B.C. with respect to environmental monitoring and oversight in our territory. We are committed to expanding stewardship activities and to ensuring that members have continued access to marine-related resources and cultural activities. It is in this context that Malahat Nation presents the following comments on the Project’s Environmental Impact Statement and Marine Shipping Addendum.

Assessment of Impacts to Malahat Nation

Throughout the Environmental Impact Statement (EIS) and response to Information Requests (IRs), and as highlighted in Table IR10-A19-2, (Malahat Nation Assessment Table) we note that the Proponent ubiquitously characterizes impacts to Malahat Nation (and elsewhere, other Indigenous groups) as negligible by taking mitigation measures, including ongoing consultation, into account.

Malahat Nation is of the view that ongoing consultation should not be considered a mitigation measure in and of itself, as there is no certainty that ongoing consultation will lead to the implementation of a mitigation measure that the Nation finds acceptable. Rather, we submit that ongoing consultation is only the process by which appropriate and acceptable mitigation measures may be identified by the Nation. In our experience discussing the Nation’s commercial crab licence with the Proponent, referenced in the section below, we have found that the conversation regarding mitigation and compensation measures becomes frustrated when a Proponent maintains an opposing view on the potential level of impact, and therefore, no acceptable mitigation measures materialize. Malahat Nation requests that the Panel take into account this distinction between ongoing consultation and mitigation measures.

Impacts to Crab and Crab Harvesting

Malahat Nation has continuously engaged with the Proponent with respect to our Area I commercial crab licence in good faith (IR10-01-C17). Despite the clearly articulated concerns of Malahat, the Proponent has not produced a proposal of mitigation measures which, in the Nation’s view, adequately addresses the level of risk and potential impacts to crab and crab harvesting that the Nation will bear if the Project proceeds. As detailed below, we have outstanding concerns that the Project will have unacceptable impacts on the value of our commercial crab licence due to resource availability and displacement from our preferred–and culturally significant–harvesting location.

Malahat Nation submits that the distinction between commercial and FSC harvesting is imposed and not reflective of traditional Indigenous marine harvesting practices, including those recognized by the Douglas Treaties. Potential impacts to the Nation’s commercial crab licence do not exist in isolation, but rather have serious negative implications for the intergenerational transmission of knowledge and connections to place.

Comments on Negligible Effect – Changes in Access and Resource Availability for Seafood Harvesting

Table 21-9 of the EIS states that the Navigational closure expansion would cease upon de-commission and closure of the terminal, but the terminal footprint is likely to remain in place. These two factors–the navigational closure expansion and terminal footprint–are grouped together and their resulting impacts to seafood harvesting characterized as “reversible”. Malahat Nation maintains that if the terminal footprint is likely to remain in place, then the impacts to seafood harvesting are not reversible. For Malahat Nation to accept that the impacts are reversible, the area would have to be restored to pre- project conditions. The Nation views restoration to pre-project conditions as unlikely given the extent of the project footprint, the technical challenges of complete habitat restoration, and the financial cost it would incur.

In Section 21.7.1 of the EIS, and response to IR7-35, the Proponent provides a rationale for its determination of a “negligible effect” in changes to seafood harvesting access and resource availability. This rationale includes the statement that the estimated decrease in productive potential for male Dungeness crabs is considered to be minor and well within the range of natural variability. The Proponent states that Dungeness crab population dynamics naturally fluctuate due to certain environmental conditions that occur over a broad area, and this high variability in population dynamics directly translates into high variability of annual commercial harvests.

Malahat Nation questions the determination of a “negligible effect” and supporting rationale. As the Area I Crab Fisherman’s Association detail in their January 22, 2019 letter to the Panel (CEA #1397), this assessment is heavily contingent upon adequate mitigation measures and assumptions about the effectiveness of such measures. Furthermore, the “natural variability” of the population (referenced in EIS Sections 16.6 and 21.5) is confounded by current anthropogenic-induced pressures including habitat alteration and loss, as well as pollutants such as hydrocarbons and heavy metals.

Moreover, even if the predicted impacts to crab resource availability are equal to that which occurs within the range of natural variability, Malahat does not consider this to be an acceptable rationale for the conclusion that it is negligible. In contrast to the Proponent’s effect determination, Malahat Nation would submit that the introduction of Project-induced factors, such as the exclusion of the most productive harvesting area due to expansion of the navigational closure area–which can reasonably be expected to move the commercial crab harvests towards the lower end of the range of “natural variability”–are impacts over and above that which already occurs. In other words, the introduction of these additional factors will have an additive effect–not a negligible one.

Comments on Crab Management Area Re-Selection

In the Proponent’s response to the Panel’s information request regarding the feasibility of additional mitigation measures relevant to commercial crab harvesting (IR7-34-1), crab management area re-

selection is identified as a mitigation measure under review. We wish to provide the Panel with the following additional context and comments on this proposed measure.

Malahat Nation holds an important relationship with the fisherman to whom we have leased our Area I licence for many years. This relationship and the benefit it brings to the Malahat community, including a reliable source of income and facilitated access to FSC crabs, would be severed if the proposed project were to proceed and our licence re-located to a new crab management area. Forging a new relationship with another crab fisherman in another area would take time and place a significant amount of uncertainty and risk onto the Nation. These factors would impose real costs on Malahat Nation as a direct result of the proposed project.

As Malahat has previously communicated to the VFPA, the Nation holds historically close cultural, social, and economic connections to mainland . The tradition of travelling across the Salish Sea to seasonally harvest seafood from the mouth of the Fraser River is a defining element of Malahat Nation culture. The Nation’s Area I licence is a highly valued connection to an Indigenous lifeway which has already been undermined by colonialism and industrial development. The relocation of the Nation’s licence would threaten to sever the connection to the specific place of harvest and significantly impact Malahat Nation’s traditional connection to this unique area of the Salish Sea.

Impacts to Marine Mammals, Including Southern Resident Killer Whales

The Southern Resident Killer Whales (SRKW) hold a special, sacred place in Malahat culture, and Malahat is deeply concerned about the effects of increased marine shipping on these endangered creatures. After review of the Proponent’s response to IR5-50 (Marine Mammals – Mitigation of Underwater Noise During Operation), we remain concerned that the mitigation measures for underwater noise impacts to marine mammals will not be sufficient to prevent further decline of the population due to Project-related increases in marine shipping.

Malahat Nation is aware of a published population viability analysis, in which Lacy et al. (2017)1 evaluate anthropogenic threats to the Southern Resident killer whale population. The authors determine that for the SRKW population to reach a recovery target of 2.3%, acoustic disturbance must be reduced by 50% in combination with a 15% increase in Chinook salmon abundance. The authors suggest that identifying the noisiest vessels operating in SRKW and creating incentive measures that target these vessels may considerably reduce the overall underwater noise levels.

As such, Malahat Nation suggests that both regional initiatives within the Federal government’s jurisdiction and local programs within the VFPA jurisdiction, such as the EcoAction or ECHO Program, must result in at least a 50% reduction in overall underwater acoustic disturbance, with targeted incentives or mandatory measures for the noisiest vessels transiting through SRKW habitat. We have previously suggested similar measures for mitigating impacts to marine mammals and the Salish Sea ecosystem more broadly by: (1) determining the maximum threshold for underwater acoustic disturbance and (2) subsequently implementing an economic incentive system to prevent the over-

1 Lacy, R. C., Williams, R., Ashe, E., Balcomb III, K. C., Brent, L. J., Clark, C. W., & Paquet, P. C. (2017). Evaluating anthropogenic threats to endangered killer whales to inform effective recovery plans. Scientific reports, 7(1), 14119.

exploitation of common resources and impacts beyond the determined threshold (e.g. a “cap and trade” approach to manage vessel traffic through the Salish Sea). Should the Project proceed, it is imperative that Indigenous Nations including Malahat play a much larger role in Project-related environmental monitoring and oversight. In particular, Malahat must be more deeply involved in the design of mitigation measures related to the SRKW population and the subsequent implementation and monitoring of those measures.

Impacts to Archaeological and Heritage Resources

In its response to IR10-25, the Proponent states that there are no measurable effects predicted from marine shipping associated with the Project, and therefore mitigation is not required. This statement is based on the prediction that the physical mechanism for the effect, vessel wake, would be within the natural variation in size of wind waves and reflect only a small percentage of the annual maximum storm wave energy. As discussed above with regard to the natural variability of crab populations and the Proponent’s determination of negligible effects, Malahat Nation does not consider this rationale to be sound. The impacts to shoreline archaeological and heritage resources from project-related vessel wake will add to those which already occur due to wind waves. Malahat echoes the call for the mitigation measure put forth by (and referenced in IR10-25) for funding to protect shoreline sites and assist with reburial and ceremonies that follow.

Malahat Participation in Monitoring and Follow-up Programs

As we have previously communicated to the Proponent (IR10-01-C17), Malahat Nation maintains that our community must play a greater role in the development and implementation of environmental monitoring mechanisms. We seek to ensure that, should the Project proceed, the validity of the Proponent’s residual effect predictions throughout the EIS and MSA will be independently verified, and the mitigation measures and commitments developed in association with the Project fully complied with.

Malahat Nation draws a distinction between monitoring and follow-up initiatives which are designed and overseen by the Proponent or regulator (including those outlined in the EIS), and those that are designed and led by Indigenous communities such as Malahat which stand to be deeply affected by the Project. Should the Project proceed, Malahat seeks an increased scope of responsibility in the development and implementation of monitoring programs and more authority to independently oversee those mitigation measures which the Nation deems to be both feasible and relevant to its interests. We contend that, as part of the proposed Project, the Proponent must commit to funding community-based monitoring programs to support Malahat environmental and cultural stewardship. It is insufficient for the Proponent–or the Crown–to simply provide opportunities for Malahat to participate in external monitoring programs. The Nation’s concerns about the effectiveness of environmental monitoring and oversight measures, should the Project proceed, is underscored by Canada’s role as both proponent and regulator of the Project.

Concluding Remarks

The continuity of the Malahat people relies on the health of the ecosystems within their territory. Malahat Nation’s traditional knowledge incorporates complex interspecies interactions and points towards the health of key sentinel species as an indicator of the overall ecosystem health. The declining status of SRKW and Chinook salmon must be viewed as warning signals for the declining health of the Salish Sea ecosystems. We strongly encourage the Panel to contemplate the ability of the Salish Sea ecosystems–and in turn, its Indigenous peoples–to support further impacts, including those construed by the Proponent as “negligible”. Malahat Nation must be a part of the process of limiting impacts to the Salish Sea and will continue to seek solutions to protect the viability of its people and culture.

We wish to emphasize that the present submission should not be interpreted by the Panel as a complete and full account of Malahat Nation’s views and concerns with respect to the proposed project. For appropriate context, the Panel should consider the full body of documentation of Malahat Nation’s stated interests and concerns with the proposed Project expressed over the past several years.

In the submission above, we have highlighted some of Malahat Nation’s unresolved concerns regarding the potential impacts of the proposed Project, especially as they relate to the Nation’s crab licence and associated cultural connection to the mainland. We have also raised our concerns with disturbances to marine mammals due to increased levels of underwater noise, impacts to cultural and heritage resources, and involvement in monitoring and follow-up programs. Importantly, we note that the Proponent’s assessment of negligible impacts to Malahat Nation incorrectly characterizes ongoing consultation as a means for mitigating impacts to the Nation. Malahat Nation looks forward to ongoing engagement regarding the determination and implementation of appropriate mitigation measures to address these outstanding concerns, should the Project proceed.

Sincerely,

Tristan Gale Heather Adams Director of Environment and Fisheries Lands Manager Malahat Nation Malahat Nation